FEDERAL COURT OF AUSTRALIA

The Lardil Peoples v State of Queensland

[2004] FCA 298

NATIVE TITLE – determination of – land and waters in the Wellesley Islands region – claim to waters, bank and bed of river and seas – four applicant groups claiming native title over neighbouring ‘Countries’ – claim to shared native title by applicant groups over certain land and waters – boundaries between ‘Country’ of applicants – existence of sub-groups (estate groups) within identifiable community – whether traditional laws acknowledged and customs observed – rights and interests under traditional law and customs – concept of ‘ownership’

NATIVE TITLE – extinguishment – whether native title rights survived the assertion of British sovereignty – extinguishment of native title rights in relation to fishtraps

Native Title Act 1993 (Cth)

Aboriginal Land Act 1991 (Qld)

Harbours Act 1955 (Qld)

Harbour Boards Act 1892 (Qld)

Transport Operations (Marine Safety) Act 1994 (Qld)

Fisheries Act 1994 (Qld)

Mineral Resources Act 1989 (Qld)

Petroleum Act 1923 (Qld)

Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 followed

Western Australia v Ward [2002] HCA 28 followed

Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 followed

Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 considered

Western Australia v Ward (1997) 76 FCR 492 considered

THE LARDIL, KAIADILT, YANGKAAL AND GANGALIDDA PEOPLES v STATE OF QUEENSLAND AND OTHERS

QG207 OF 1997

COOPER J

BRISBANE (HEARD MORNINGTON ISLAND AND BRISBANE)

23 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG207 OF 1997

BETWEEN:	THE LARDIL, KAIADILT, YANGKAAL AND GANGALIDDA PEOPLES APPLICANTS
AND:	STATE OF QUEENSLAND FIRST RESPONDENT
AND:	COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
AND:	PASMINCO CENTURY MINE LIMITED (ACN 006 670 300) THIRD RESPONDENT
AND:	MG KAILIS GULF FISHERIES PTY LTD (ACN 007 856 395) FOURTH RESPONDENT
AND:	LINDSAY KIRWAN CLEMSEN FIFTH RESPONDENT
AND:	BURKE SHIRE COUNCIL SIXTH RESPONDENT
AND:	ARMRAYNALD INVESTMENTS PTY LTD (ACN 068 291 403) SEVENTH RESPONDENT
AND:	ESCOTT CATTLE COMPANY (BN1927140) EIGHTH RESPONDENT
AND:	PANOY PTY LTD (ACN 010 023 346) NINTH RESPONDENT
AND:	GARY WARD TENTH RESPONDENT
AND:	QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC (INC NO A28588) ELEVENTH RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	23 MARCH 2004
WHERE MADE:	BRISBANE (HEARD MORNINGTON ISLAND AND BRISBANE)

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1. Native title exists in so much of the ‘determination area’ as is described in the first to fourth schedules inclusive, but otherwise, does not exist in the determination area.

2. The determination area is the area of land and waters between the visual horizon and the high water mark (‘the high water line’) marked on Australian Charts AUS303 and AUS304, forming part of Ex 164 in the proceedings, together with the land and waters of the Albert River from the coast inland to a notional line across the river where it meets the eastern boundary of Lot 122 on CP12, County of Porchester, Parish of Burke.

3. Native title is held by the Lardil peoples in the land and waters described in the first schedule.

4. Native title is held by the Yangkaal peoples in the land and waters described in the second schedule.

5. Native title is held by the Kaiadilt peoples in the land and waters described in the third schedule.

6. Native title is held by the Gangalidda peoples in the land and waters described in the fourth schedule.

7. The nature and extent of the native title rights and interests held by each of the Lardil, Yangkaal, Kaiadilt and Gangalidda peoples in respect of their separate land and waters described respectively in the first to fourth schedules inclusive is:

(1) The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed by and under their traditional laws and customs.

(2) The right to fish, hunt and gather living and plant resources, including the right to hunt and take turtle and dugong, in the inter-tidal zone and the waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under their traditional laws and customs.

(3) The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under their traditional laws and customs.

(4) The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed under their traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within their respective traditional territory for the purposes of ritual or ceremony.

(5) In respect of the waters of the Albert River specified in the Fourth Schedule, the Gangalidda peoples have the right to:

(a) access the waters of the Albert River for the purposes of hunting, fishing and gathering for living and plant resources for personal, domestic and non-commercial consumption in accordance with and for the purposes allowed by and under their traditional laws and customs;

(b) fish, hunt and gather living and plant resources in the river for personal, domestic and non-commercial consumption in accordance with and for the purposes allowed by and under their traditional laws and customs;

(c) access the river in accordance with and for the purposes allowed under their traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the river for purposes of ritual or ceremony.

8. The native title rights held by each of the native title holder groups do not confer possession, occupation, use and enjoyment of the land and waters to which they relate to the exclusion of all others.

9. There is no native title right or interest in minerals or petroleum within the meaning of those terms as defined in the Mineral Resources Act 1989 (Qld) and the Petroleum Act 1923 (Qld) held by any of the native title holders in the determination area.

10. The nature and extent of other interests in relation to the determination area are the interests created by the Crown and the rights and interests of members of the public arising under the common law or international law recognised as applicable in Australia, set out in the fifth schedule.

11. The native title rights and interests described in par 7 are subject to regulation, control, curtailment or restriction by valid laws of the Commonwealth of Australia and/or the valid laws of the State of Queensland.

12. To the extent that any inconsistency exists between the native title rights and interests referred to in par 7 above and the rights conferred on other interests referred to in par 10 above, the native title rights and interests must yield to such other rights and interests.

13. Within 28 days the common law holders of native title are to file a minute of proposed determination under s 56 or s 57 of the Native Title Act 1993 (Cth) and if no such minute is filed, it is determined that native title is held by the common law holders in accordance with the terms of this determination.

14. Liberty to apply on five clear days notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

First Schedule

The land and waters in which the Lardil peoples hold native title are:

(i) subject to par (iii) below, the land and waters between the high water line on each of Mornington, Sydney and Wallaby Islands and a line five nautical miles seaward running parallel with it;

(ii) subject to par (iii) below, land and waters not within the area defined in par (i) above, being the lands and waters between the high water line on each of Rocky, Manowar, Moondalbee, Pisonia (or Turtle), Bountiful and Turrermurrer Islands and a line one-half of a nautical mile seaward and running parallel with it;

(iii) to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Yangkaal, Kaiadilt or Gangalidda peoples determined in accordance with this determination, the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay and in particular, the boundary between the land and waters of the Lardil and Yangkaal peoples is the mid-line of the Appel Channel.

Second Schedule

The land and waters in which the Yangkaal peoples hold native title are:

(i) subject to par (v) below, the land and waters between the high water line on each of Denham, Forsyth and Andrew Islands and a line five nautical miles seaward running parallel with it;

(ii) subject to pars (iii), (iv) and (v) below, land and waters not within the area defined in par (i) above, being the land and waters between the high water line on each of Roberts (or Pains), Allen, Little Allen, Francis (or Bayley) Islands and a line one-half of a nautical mile seaward and running parallel with it;

(iii) the land and waters of Allen, Little Allen and Horseshoe Islands as defined under par (ii) above, are shared equally with the Kaiadilt peoples and the Gangalidda peoples;

(iv) so much of the land and waters of Francis (or Bayley) and Robert Islands as defined under par (ii) above as are between the islands and the mainland at Bayley Point are shared equally with the Gangalidda peoples;

(v) to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Lardil, Gangalidda or Kaiadilt peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay, and in particular, the boundary between the land and waters of the Lardil and Yangkaal peoples is the mid-line of the Appel Channel.

Third Schedule

The land and waters in which the Kaiadilt peoples hold native title are:

(i) subject to pars (iii) and (iv) below, the land and waters between the high water line on each of Bentinck and Sweers Islands and a line five nautical miles seaward running parallel with it;

(ii) subject to pars (iii) and (iv) below, land and waters not within the area defined in par (i) above, being the land and waters between the high water line on each of Fowler, Albinia, Douglas, Bessie, Margaret, Allen, Little Allen, Horseshoe, Jawari and Dararrbayi Islands and a line one-half of a nautical mile seaward and running parallel with it;

(iii) the land and waters of Allen, Little Allen, and Horseshoe Islands as defined under par (ii) above, are shared equally with the Yangkaal and Gangalidda peoples;

(iv) to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Lardil, Yangkaal and Gangalidda peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay.

Fourth Schedule

The land and waters in which the Gangalidda peoples hold native title are:

(i) subject to par (vi) below, the land and waters between the high water line on the mainland coast between Massacre Inlet and the eastern bank of the Leichhardt River where it enters the Gulf of Carpentaria and a line five nautical miles seaward running parallel with it;

(ii) subject to pars (iv) and (vi) below, the land and waters not within the area defined in par (i) above, being the land and waters between Bayley Point and Francis (or Bayley) Island and Robert Islands within one-half of a nautical mile from the high water line on the southern shores of these islands;

(iii) subject to pars (v) and (vi) below, the land and waters not within the area defined in par (i) above, being the land and waters between Parker Point and Allen, Little Allen and Horseshoe Islands within one-half of a nautical mile from the high water line on the southern shores of these islands;

(iv) the land and waters in par (ii) above are shared equally with the Yangkaal peoples.

(v) the land and waters in par (iii) above are shared equally with the Yangkaal and Kaiadilt peoples;

(vi) to the extent that the waters defined in pars (i), (ii) and (iii) above overlay any waters of the Lardil, Yangkaal and Kaiadilt peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay.

(vii) the land and waters of the Albert River from the coast where it enters the Gulf of Carpentaria inland to a notional line across the river where it meets the eastern boundary of Lot 122 on CP 12, County of Porchester, Parish of Burke.

Fifth Schedule

The nature and extent of other interests in relation to the determination area are:

(a) other interests held by members of the public under the common law, including:

(i) the international law right of innocent passage;

(ii) the common law public right of navigation;

(iii) the common law public right to fish;

(b) the rights and interests of holders of a licence or an authority issued under the Fisheries Act 1994 (Qld), the Fisheries Regulation 1995 (Qld) and the Fisheries Management Act 1991 (Cth) or any other legislative scheme for the control, management and exploitation of the living resources within the determination area.

(c) the rights and interests of the holders of licences, certificates, permits and authorities issued under the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld).

(d) the rights of Pasminco Century Mine Ltd ACN 006 670 300 under and subject to the conditions of a permit granted to it under the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld) to place and maintain in position a buoy mooring in Investigator Road in the determination area.

(e) Albert River Reserve, being Lot 1 on Crown Plan 884324.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG207 OF 1997

BETWEEN:	THE LARDIL, KAIADILT, YANGKAAL AND GANGALIDDA PEOPLES APPLICANTS
AND:	STATE OF QUEENSLAND FIRST RESPONDENT
AND:	COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
AND:	PASMINCO CENTURY MINE LIMITED (ACN 006 670 300) THIRD RESPONDENT
AND:	MG KAILIS GULF FISHERIES PTY LTD (ACN 007 856 395) FOURTH RESPONDENT
AND:	LINDSAY KIRWAN CLEMSEN FIFTH RESPONDENT
AND:	BURKE SHIRE COUNCIL SIXTH RESPONDENT
AND:	ARMRAYNALD INVESTMENTS PTY LTD (ACN 068 291 403) SEVENTH RESPONDENT
AND:	ESCOTT CATTLE COMPANY (BN1927140) EIGHTH RESPONDENT
AND:	PANOY PTY LTD (ACN 010 023 346) NINTH RESPONDENT
AND:	GARY WARD TENTH RESPONDENT
AND:	QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC (INC NO A28588) ELEVENTH RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	23 MARCH 2004
WHERE MADE:	BRISBANE (HEARD MORNINGTON ISLAND AND BRISBANE)

REASONS FOR JUDGMENT

the claim

1 These proceedings are brought pursuant to s 61 of the Native Title Act 1993 (Cth) (‘the Act’). The applicants are the Lardil, Kaiadilt, Yangkaal and Gangalidda peoples (‘Lardil peoples’, ‘Kaiadilt peoples’, ‘Yangkaal peoples’, and ‘Gangalidda peoples’) currently living and their descendants. They seek a determination of native title in respect of the land and waters below the high water mark in an area of sea adjacent to the Wellesley Islands and adjacent to the coast of Queensland between Massacre Inlet and the Leichhardt River, in the Gulf of Carpentaria.

2 As lodged, the claim is brought as a single claim by the constituent group for exclusive ownership of the land and waters within the claim area, with each of the four groups claiming exclusive ownership to what it claims as their traditional territory. The territories in issue are adjoining territories and in certain locations are shared.

3 The traditional territory claimed by the Lardil peoples is said to comprise the following islands of the North Wellesley group and the waters surrounding them:

a. Mornington Island (Gununa);

b. Sydney Island (Langunganji);

c. Wallaby Island (Lingunganji);

d. Rocky Island (Kalamburriya);

e. Manowar Island (Delmerriya or Wudma);

f. Moondalbee Island (Mundalbi);

g. Pisonia (or Turtle) Island (Meldan);

h. Bountiful Islands (Kalngkawa); and

i. Turrermurrer Island (Kanhthathurru)

4 The boundary between the Lardil peoples’ territory and the territory of the Yangkaal peoples is formed by the Appel Channel.

5 The traditional territory claimed by the Yangkaal peoples is said to comprise the following islands of the North Wellesley group and the waters surrounding them:

a. Andrews Island (Walbadiin);

b. Forsyth Island (Mayiyanba);

c. Denham Island (Bathungan);

d. Robert (or Pains) Island (Marrangkarba);

e. Allen and Little Allen Island (Dijara); and

f. Francis (or Bayley) Island (Jurrmanki).

6 The Yangkaal peoples acknowledge shared interests in the waters between Francis and Robert Islands and the mainland with the Gangalidda peoples, and acknowledge shared interests with the Kaiadilt peoples in Allen, Little Allen and Horseshoe Islands and with the Kaiadilt peoples and the Gangalidda peoples in the waters surrounding them.

7 The traditional territory claimed by the Gangalidda peoples is said to comprise the coastal land stretching along the mainland coast of the Gulf of Carpentaria from Massacre Inlet to the eastern bank of the Leichhardt River, where it enters the Gulf of Carpentaria and the adjacent waters. The Gangalidda peoples acknowledge that they have shared interests with the Yangkaal peoples in the waters from Bayley Point out to Bayley (Francis) Island and Robert (Pains) Island, and shared interests with the Yangkaal peoples and Kaiadilt peoples in the waters from Point Parker towards Allen, Little Allen and Horseshoe Islands. They also claim the waters, banks and bed of the Albert River from where it enters the Gulf inland to a notional line drawn across the river where it meets the eastern boundary of Lot 122 on Crown Plan 12.

8 The traditional territory claimed by the Kaiadilt peoples is said to comprise the following islands in the South Wellesley group and the waters surrounding them:

a. Bentinck Island;

b. Sweers Island (Ringurrng);

c. Fowler Island (Barthayi);

d. Albinia Island (Dalwayi);

e. Douglas Island (Nathayiwinda);

f. Bessie Island (Bildi-Kaarrku);

g. Margaret Island (Karndingarrbayi);

h. Allen Island (Ngaarrkinab or Thaliwirndiwuru);

i. Little Allen Island;

j. Horseshoe Island (Dijirr);

k. Jawari; and

l. Dararrbayi.

9 The Kaiadilt peoples acknowledge shared interests with the Yangkaal peoples in Allen, Little Allen and Horseshoe Islands and with the Yangkaal and Gangalidda peoples in the waters surrounding them.

10 The Yangkaal, Kaiadilt and Gangalidda peoples claim exclusive joint ownership in the areas of shared interests.

11 The original application was lodged with the National Native Title Tribunal on 12 March 1996 for a determination of the native title. By that application, the applicants sought a determination that they had the right of ownership to the claim area, being the right to exclusive and undisturbed occupation, possession, use and enjoyment of the land and waters including the natural resources (living and mineral) within the area. That is, the applicants claimed ownership of:

a. the land between high water mark and low water mark and the reefs within the claim area;

b. the waters within the claim area;

c. the sea bed within the claim area;

d. the subsoil within the claim area; and

e. all natural resources, living and mineral, within the claim area.

12 The evidence in these proceedings was prepared and tendered in support of a determination in the form sought in the original application. That is, the evidence was tendered to support a claim to ownership with the right to hold and enjoy all of the incidents which flowed from ownership of the land and waters in the claim area. Subsequent to the conclusion of the evidence, the High Court of Australia handed down its decisions in three matters which impacted directly on the issues which arose in these proceedings. The decisions of the High Court were Commonwealth of Australia v Yarmirr [2001] HCA 56 (‘Yarmirr’); (2001) 208 CLR 1; Western Australia v Ward [2002] HCA 28 (‘Ward’), and Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (‘Yorta Yorta’).

13 As a result of these High Court decisions, the applicants and each constituent group individually amended the terms of the Points of Claim previously filed and sought a determination in the following terms:

‘1. Native title exists in relation to the Determination Area.

2. The native title is held by the Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples in accordance with the traditional laws acknowledged and traditional customs observed by them (“the Native Title Holders”) as common law holders.

3. Subject to paragraph 4 and the rights and interests identified in paragraph 5, the nature and extent of the native title rights and interests in relation to the Determination Area are:

3.1 the right of non-exclusive possession, occupation, use and enjoyment of the waters and land;

3.2 alternatively to 3.1, the non-exclusive right to occupy, use and enjoy the waters and land;

3.3 the right to enjoy the amenity of the Determination Area;

3.4 the right of access to the waters and land;

3.5 the right to take and use the resources of the waters and land, other than minerals and petroleum, including the right to -

(i) fish in the waters;

(ii) hunt and take turtle and dugong in the waters;

(iii) take plants and animals;

(iv) take soil, shell, clay, sand, gravel and rock;

(v) take spring water;

3.6 the right to protect sites of significance located in or on the waters or land, including the right to -

(i) have access to sites of significance;

(ii) carry out ritual and perform ceremony at sites of significance;

(iii) prevent acts which may desecrate, damage or destroy sites of significance;

3.7 the right to construct, repair and maintain permanent structures, including rock wall fishtraps, on the land or in the waters;

3.8 the right to grant or refuse access to the waters or the land to people other than people exercising the public right of fishing or navigation, the right of innocent passage, or a right lawfully conferred by or granted pursuant to statute;

3.9 the right to grant or refuse permission to use the waters or the land to people other than people exercising the public right of fishing or navigation, the right of innocent passage, or a right lawfully conferred by or granted pursuant to statute;

3.10 the right to grant or refuse permission to take and use the resources of the waters or the land to people other than people exercising the public right of fishing or navigation, the right of innocent passage, or a right lawfully conferred by or granted pursuant to statute, including to -

(i) hunt and take turtle and dugong in the waters;

(ii) take animals which are not the subject of the right to fish;

(iii) take plants;

(iv) take soil, shell, clay, sand, gravel and rock;

(iv)[sic]take spring water;

3.11 the right to protect the resources of the waters and land by taking steps to prevent acts which are not consistent with the reasonable exercise of public or statutory rights and which may cause damage, spoliation or destruction of the habitat of fish, plants or animals in or on the waters or land.

4. The native title rights and interests are subject to and exercisable in accordance with:

(i) the laws of the State of Queensland and of the Commonwealth and valid interests conferred under those laws; and

(ii) traditional laws acknowledged and traditional customs observed by the Native Title Holders.

5. The nature and extent of any other interests in relation to the Determination Area are:

(i) the rights and interests of the public under Reserve R14 which covers the Albert River;

(ii) the international law right of innocent passage;

(iii) the common law public right of navigation;

(iv) the common law public right to fish; and

(v) any rights and interests of the holder of an authority issued under the Fisheries Act 1994 (Qld) and the Fisheries Management Act 1991 (Cth) that authorises a commercial fishing operation in the waters of the determination area as may be current at the date of the determination;

(vi) any other rights and interests held by or under the Crown by the force and operation of the laws of the State or the Commonwealth as may be current at the date of this Determination.

6. The relationship between the native title rights and interests and the other rights and interests described in paragraph 5 (“the other rights and interests”) is that:

(i) the other rights and interests continue to have effect and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests; and

(ii) the other rights and interests and an activity done in exercise of the rights conferred by or held under the other rights and interests prevail over the native title rights and interests and any exercise of those native title rights and interests.

7. The native title rights and interests do not confer a right of “possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others”.

8. The words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions:

“animal” has the meaning attributed to it in the Nature Conservation Act 1992 (Qld) as in force at the date of this determination;

“Determination Area” means the waters and land as depicted on the attached chart, being the waters and land below the mean high water mark including the sea-bed and subsoil within the boundaries determined by the charts showing the distance to the sea horizon in the report prepared by the Australian Hydrographic Service filed in the proceeding on 9 December 1998 (Exhibit 164), together with the waters and land of the Albert River, not including the islands or banks above the high water mark, from the coast to a notional line across the river where it meets the eastern boundary of Lot 122 on CP 12, County of Porchester, Parish of Burke;

“fish” means a member (whether living or dead) of a species that throughout its life cycle usually lives -

(a) in water; or

(b) in or on foreshores; or

including all species of -

(i) gilled invertebrates;

(ii) sharks;

(iii) stingrays, squid, octopus and jellyfish;

(iv) prawns, crayfish, rock lobsters, crabs and other crustaceans;

(v) scallops, oysters and other molluscs;

(vi) shell fish;

(vii) beche-de-mer and other holothurians;

“minerals” has the meaning attributed to it in the Mineral Resources Act 1989 (Qld) as in force at the date of this determination;

“petroleum” has the meaning attributed to it in the Petroleum Act 1923 (Qld) as in force at the date of this determination;

“plant” has the meaning attributed to it in the Nature Conservation Act 1992 (Qld) as in force at the date of this determination and to avoid doubt includes seaweed and seagrass.’

(Original emphasis)

14 In his final submission, Mr Basten QC, senior counsel on behalf of the applicants, put forward an alternative form of determination, which provided:

‘3.1 an interest in maintaining the land and waters of the determination area free from intrusion, interference and affectation inconsistent with the spiritual connection and responsibility for the land and waters;

3.2 a right to be acknowledged as the native title holders for the determination area by:

(a) Aboriginal people who are governed by the traditional laws and customs acknowledge [sic] and observed by the native title holders;

(b) any person requiring consent to enter upon or use the land and waters of the determination area, and

(c) any person seeking to do an act of the kind referred to in a relevant provision of Part 2, Div 3 of the Native Title Act in relation to the land or waters of the determination area.’

15 The boundaries of the claim area ultimately were fixed by reference to the high water mark on each of the islands and on the coast of Queensland between Massacre Inlet and the eastern bank of the Leichhardt River where it enters the Gulf of Carpentaria, and the sea horizon, the position of which was calculated by reference to certain high points on some of the islands within the claim area. The boundary is shown on the charts in the report of the Australian Hydrographic Service (Ex 164 in the proceedings). The boundaries were fixed on the basis that the rights were claimed in the seas for ‘as far as the eye could see’. The claim area also includes the waters and lands of the Albert River, not including the islands or banks above the high water mark, from the coast to a notional line across the river where it meets the eastern boundary of Lot 122 on CP 12, County of Porchester, Parish of Burke.

the parties

16 Section 84 of the Act makes provision for parties to applications made pursuant to s 61 of the Act. Pursuant to s 66 of the Act, numerous persons notified the Court that they wanted to be a party to the proceedings. Those persons became parties by the operation of s 84(3) of the Act. The State of Queensland became a party by operation of s 84(4) because part of the area covered by the application is within the jurisdictional limits of the State of Queensland. The Commonwealth of Australia became a party by intervention pursuant to s 84A of the Act.

17 By the time the application was to proceed to a hearing, many persons who had become parties withdrew or were excused from participation in the proceedings. The only parties to take an active role to a greater or lesser extent in the hearing were the State of Queensland (described as the first respondent), the Commonwealth of Australia (described as the second respondent), Pasminco Century Mine Ltd ACN 006 670 300 (described as the third respondent), the pastoral companies Amraynald Investments Pty Ltd and Escott Cattle Company (described respectively as the seventh respondent and eighth respondent) and the Queensland Seafood Industry Association (described as the eleventh respondent).

18 On the hearing of the application, which occurred on Mornington Island in the Gulf of Carpentaria (in two instalments) and in Brisbane, affidavit material or witness statements were received into evidence from 58 indigenous persons, 55 of whom gave oral evidence and were cross-examined. Evidence was given either orally or in written form by 47 non-indigenous witnesses, other than experts.

19 Expert reports and oral evidence were given by architect and anthropologist, Dr Paul Memmott in respect of the Lardil peoples and Yangkaal peoples, by linguist and anthropologist Dr Nicholas Evans in respect of the Kaiadilt peoples, and by anthropologist Dr David Trigger in respect of the Gangalidda peoples. Each anthropologist prepared genealogies in respect of the particular group he was reporting on. Each genealogy contains details of all currently identified members of each of the constituent groups. An historical report made by Dr Thom Blake was tendered and marked Ex 143, as was a literature survey, marked Ex 172 and a report on fishtraps, marked Ex 173 by Dr Richard Robins, Senior Curator Archaeology at the Queensland Museum on behalf of the applicants. Neither of these authors were cross-examined on these documents. Numerous documents totalling several thousand pages were tendered on behalf of various parties.

history of european contact

20 The relevant history is not contentious. The first recorded exploration of the Gulf of Carpentaria was that of Jan Carstenez, Commander of the ship ‘Pera’ in 1623. This was followed by Abel Tasman in 1642-43, and on a second occasion in 1644. In 1788, British sovereignty was asserted in relation to the territory called New South Wales, extending from the northern cape or extremity of the coast called Cape York and all country inland westward as far as the 135th degree of east longitude. In 1859, by letters patent issued pursuant to s 7 of the New South Wales Constitution Act 1855 (Imp), the colony of Queensland was established. The colony’s western boundary was fixed at the 141st degree of east longitude. In March 1862, pursuant to s 2 of the Australian Colonies Act 1861 (Imp), Queen Victoria annexed to the colony of Queensland all the adjacent islands in the Gulf of Carpentaria and extended the colony’s western boundary from the 141st degree of east longitude to the 138th degree of east longitude. Upon acquiring sovereignty of the landmass of New South Wales, Great Britain acquired the adjoining territorial sea: New South Wales v Commonwealth (1975) 135 CLR 337 at 361, 362 - 363, 374, 486, 487, 493, 494. The seaward boundary of the colony of New South Wales and later the colony of Queensland, did not extend into the territorial sea. That territorial sea extended three nautical miles. Since the original assertions of sovereignty, the territorial sea has become the territorial sea of Australia and has been extended in accordance with customary international law and international conventions to which Australia has become a party.

21 Matthew Flinders in the ‘HMS Investigator’ reached the southern part of the Gulf of Carpentaria in November 1802, and remained in the vicinity of the Wellesley Islands for over a month. Flinders named the group of islands after Richard Wellesley, the second Earl of Mornington, and individually named Sweers, Bentinck, Allen and Mornington Islands. He also named the safe anchorage between Bentinck and Sweers Islands as ‘Investigator Road’: Blake Ex 143 at 2.

22 The journal of Flinders’ journey was published in 1814. In 1962, Norman Tindale, the Curator of Anthropology and Acting Director of the South Australian Museum, published some of the findings of Flinders as well as quotes from his journal describing his encounter with the indigenous people. In this article, entitled ‘Geographical Knowledge of the Kaiadilt People of Bentinck Island, Queensland’ (Records of the South Australian Museum, Vol 14, No 2, 27 July 1962), Tindale wrote (at 262 - 263):

‘Sweers Island, the eastern-most of the Bentinck Island group was the first high ground in the Gulf of Carpentaria seen by Flinders. He describes his first anchorage at the southern end of the island but makes no reference to a low rounded island known to present day Kaiadilt aborigines as Dingkari [’Dinkari]. This islet lies due south of Bardatur [’Bardatur]. Dingkari is stated to be a nesting place for gannets and on our visit they were seen flying there. Between it and Sweers Island is a reef called Karandjalt [’Karandjalt].

Flinders anchored off Bardatur and on 17 November 1802 landed on the beach called Tjilki [’Tji:lki] making his way to Inspection Hill, a limestone elevation 104 feet high, from which he had his first extensive view of the island group. This hill is the Durakara [’Du:rakar, ’Du:rakara] of the Kaiadilt; the name is applied specifically to the supposedly never-failing spring which oozes from rocks at the eastern base of the hill and trickles into the sea at low tide from small rock pools. This water is quite fresh.

Flinders found safe anchorage off the western point of Sweers Island, known to present day natives as Milt [’Milt], and after exploring to the west spent several weeks repairing his ship.

He described his one close encounter with the aborigines, near Allen Island on the 20th November 1802, in the following passages. “I went eastward to a smaller island, two miles off, where several Indians were perceived. The water was too shallow for the boat to get near them; but we landed at a little distance, and walked after three men who were dragging six small rafts toward the extreme northern rocks, where three other natives were sitting.

“These men not choosing to abandon their rafts, an interview was unavoidable, and they came on shore with their spears to await our approach. One of us advanced towards them, unarmed; and signs being made to lay down their spears, which was understood to mean that they should sit down, they complied; and by degrees a friendly intercourse was established ... The rafts consisted of several straight branches of mangrove, very much dried, and lashed together in two places with the largest ends one way, so as to form a broad part, and the smaller ends closing to a point. Near the broad end was a bunch of grass, where the man sits to paddle, but the raft, with his weight above, must swim very deep; and also I should scarcely have supposed it could float a man at all. Upon one of the rafts was a short net, which from the size of the meshes was probably intended to catch turtle; upon another was a young shark; and these, with their paddles and spears seemed to constitute the whole of their earthly riches ...

“After being five minutes with them, the old men proposed to go to our boat; and this being agreed to, we proceeded together, hand in hand. But they stopped half way, and retreating a little, the oldest made a short harangue which concluded with the word jahree! Pronounced with emphasis; they then returned to the rafts, and dragged them towards their three companions, who were sitting on the furthest rocks. These I judged to be women, and that the proposal of the men to go to our boat was a feint to get us further from them; it did not seem, however, that the women were so much afraid of us, as the men appeared to be on their account; for although we walked back, past the rafts much nearer than before, they remained very quietly picking oysters. It was not my desire to annoy these poor people; and therefore leaving them to their own way we took an opposite direction to examine the island.”

The rafts, shell water vessels, fish nets, and fillets described by Flinders are still in use.

In addition to the six natives on Horse-shoe Island, natives were repeatedly seen both on Sweers and Bentinck Islands and one of his officers found a small hole containing a little muddy water with a shell lying near it. This was dug out to become the well near Milt which has remained in use up to the present time.

The natives were elusive. Fireplaces were found under trees and one instance a large hole was found to contain two “apartments” in each of which a man might lie down. Flinders considered these “caves” to be their foul-weather residences and the fireplaces under the shade of the trees, with dried grass spread around, their fine-weather camps. The earth of dry swamps was found to be so dug up with pointed sticks that it resembled the work of a herd of swine. He inferred that they obtained a “fern or similar root” from the mud.’

23 The next recorded observation of the Wellesley Islands was that of Captain J L Stokes in the ‘Beagle’ in July 1841. Tindale records (at 264) that Stokes observed three separate groups of indigenous peoples on Bentinck, Sweers and Allen Islands in July 1841 in the same three areas in which indigenous peoples were noted by Flinders in 1802.

24 In 1865, Burketown was established 12 miles inland from the Gulf. Burketown was surveyed in 1866 and a town reserve proclaimed in the Queensland Government Gazette on 8 August 1866. In May 1866, William Landsborough, Police Magistrate, directed that fever victims in Burketown be moved to Sweers Island for their recuperation: Blake Ex 143 at 16. In 1867, construction of a Court House, lock-up and Crown Lands Office in Burketown was approved.

25 On Sweers Island a township was surveyed and called Carnarvon. The surveyed lots in Carnarvon were sold in 1867, and by July 1868 the town was reported as comprising about 35 residents with 15 houses, a hotel, a store and Customs House: Blake Ex 143 at 18. In his report, Blake records the interaction between the Kaiadilt peoples and the European settlers on Sweers Island by reference to the available historical records and studies: at 19 - 23. That contact was at times violent, with the Kaiadilt peoples retreating to Bentinck Island, but still visiting Sweers Island.

26 By 1873, the township of Carnarvon was in serious decline and the Customs House was moved from Sweers Island in that year. The township was abandoned and the last resident, McLennan, died there in 1874.

27 Blake records the land exploration in the mainland areas adjacent to the southern end of the Gulf in the 1840s to the 1860s, and the reports of contact with the indigenous peoples of that area: at 7 - 8. He also notes the development of the pastoral industry in that area and its fall by 1872. Importantly, he records the closure, in September 1894, of the camps which had been established by indigenous people near Burketown, and the return of those people ‘to their old hunting grounds’ by Inspector J Lamond of the Queensland Police. Blake Ex 143 at 26, quotes a letter from L Ordish, the officer in charge of the Turn Off Lagoons Police, dated 12 November 1899, which states:

‘There are about 430 blacks in the District distributed throughout the districts as follows:

“Carawa” tribe 130 camping at the head of the Nicholson

“Miukius” 30 camping on the Leichhardt

“Waggias” 50 camping on Gun Porbaer Creek

“Wauyee” 30 camping the Gregory

“Yanular” 10 camping on the Nicholson

“Point Parker Tribe” 130 camping on Moonlight Creek

“Euchlo” 50 camping between Point Parker and SA border.

The blacks are all in very good health, especially those who have been constantly living in the bush on native food.’

28 Police Inspector F Urquhart, Commissioner of Police, in a report dated 25 June 1896, reported that the coastal strip between the Northern Territory border and Point Parker was ‘wholly unoccupied except by the blacks’: Blake Ex 143 at 27. It was an area unsuitable for cattle and thus unoccupied by pastoralists: Blake Ex 143 at 27.

29 In 1897, the Queensland Government passed the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (‘the AP Act’). The AP Act provided for the appointment of protectors to discharge certain statutory functions and for the establishment of reserves administered by superintendents. There was statutory authority under the AP Act to remove indigenous persons to a reserve. Dr Walter Roth was appointed the Northern Protector of Aboriginals.

30 Roth first visited the Wellesley group in June 1901. Roth encountered indigenous persons on Bentinck Island and Mornington Island. He undertook further visits in 1902 and 1903. In relation to the two later visits, Blake observed (at 30):

‘Roth returned to the Wellesley Islands in 1902 and again in 1903. (No report of Roth’s second visit appears in the official correspondence. Roth, in the report of his 1903 visit, states it was his third visit to the island (WE Roth to Under Secretary, Department of Public Lands, 27 June 1903, QSA A/33681)). In what had been a familiar pattern, the Kaiadilt showed no interest in dialogue with outsiders. On this trip Roth failed to make any direct contact with the Kaiadilt. From an examination of their camps, Roth concluded that “the Bentinck Islanders, from an ethnological point of view would appear to have been isolated from the mainland for generations past”. (Ibid.) Roth visited other islands and make [sic] contact with a group on Forsyth Island. Indeed, Roth had the “opportunity of examining closely some 10 of these aboriginals, male and female, adult and infant”. (Ibid.) He observed several differences to the Kaiadilt and concluded that the Forsyth Islanders had close contact with the mainland via Raines and Bayley Islands. Roth spent three days walking across Mornington Island but again had only limited success in having close contact with the Lardil. After observing all three main groups on the Wellesley Islands, Roth concluded that the Forsyth and Mornington Islanders were linguistically related to the Nicholson River language, but not with the Bentinck Islanders. (Ibid.)’

31 In 1905, a reserve was declared in respect of the Wellesley Islands group (with the exception of Sweers Island). The reserve was by proclamation under s 19 and s 190 of the Land Act 1897 declared in respect of an area of about 383 square miles ‘Comprising all the islands in the Gulf of Carpentaria known as the Wellesley Group, including the Forsyth Group and the South Wellesley Islands, with the exception of Sweer’s Island’: Queensland Government Gazette, 22 April 1905, p 1403. The reserve was for the use of the indigenous inhabitants of the State.

32 In May 1914, the Presbyterian Church established the Mornington Island Mission with Robert Hall as superintendent. Hall was murdered by a Lardil man in October 1917 and was replaced by Rev R H Wilson in 1918. By 1925, a girls dormitory had been built with a second completed by 1931. The boys dormitory was built in 1929. During the same period some Lardil people established a permanent camp near the mission.

33 Between 1919 and 1936, 63 indigenous people were removed to Mornington Island, two-thirds of whom were children: Blake Ex 143 at 38.

34 In 1934, a reserve for the use of the indigenous inhabitants of the State was declared in respect of Sweers Island, exclusive of freehold allotments in the town of Carnarvon and streets giving access thereto: Queensland Government Gazette, 4 August 1934, p 344.

35 In 1944, the mission staff, who had been withdrawn in 1941 because of World War II, returned to Mornington Island.

36 The movement of the Kaiadilt peoples to Mornington Island began in 1945. They are recorded by Tindale in his 1962 paper (at 269 - 271):

‘In early June 1945 Gully Peters who had been for so long a leader in attempting to make contact with the Kaiadilt and had been present on the launch during the attack at Milt, took the Mission launch Albinia to the western end of Bentinck Island. He had a friendly meeting with the Bentinck Islanders and on 6th June returned to Mornington Island with 29 persons aboard. These people were of more than one western dolnoro, including six men, four boys, thirteen women and six children. A month later, after seeing life on a Mission Station, these people were taken back to Bentinck Island.

In September and October 1946 drought conditions prevailed in the area. Brief contacts were made with Bentinck Islanders while searches were being made for the Albinia which had disappeared in a storm, with all hands. At first it was though the Islanders had been responsible for her loss.

On 10 June 1947 a young Bentinck Island male, two women and a boy and girl were found in distress on Allen Island, remnants of a party which had fled from Bentinck Island after a fight. They were suffering from a shortage of water and were removed to the Mission.

On 3 August, 1947, Mission Superintendent J.B. McCarthy found 42 men, women and children on Sweers Island and took them to the Mission. They were in poor condition because of the drought. Dr. J.A. Spalding examined these people in December 1947 and also visited Bentinck Island, himself suffering shipwreck during the return voyage. He noted the presence of some edible berries, fruits, roots and grasses on the banks of the Markaruki river. Ten of seventeen children examined by him showed some degree of malnutrition. He noted that smears were negative but that symptoms of “chronic lung infections ? [sic] tuberculosis” were present, mainly among women. Hook-worm was absent. He concluded that the Bentinck Islanders were rapidly dying out and ascribed their decline to “(1) tribal warfare, (2) disease, mainly tuberculosis(?) and dysentery and (3) malnutrition among the young.”

The aborigines still remaining on Bentinck Island in February 1948 suffered the effects of an extraordinary high tide or tidal wave, described elsewhere in this paper. This appeared to be a culminating event in the deterioration of the homeland of the Kaiadilt.

Drought conditions continued in the Gulf of Carpentaria during 1948 and because of the tidal wave the main coastal waterholes on Mornington Island were salty. Alarm was expressed at the possible fate of the remaining \population of Bentinck Islanders and smoke signals seen were interpreted as being distress calls. A police party in the launch Marlin therefore went to the island on 16th October 1948. According to a report by Missioner McCarthy they found pot holes dug along the beach, all of them dry; the usual camps were deserted; one hole at the eastern end of Dalwai [’Dalwai:] (Albinia Island) still contained water. Tracks were found on the south coast at “MacKenzie Creek”. The whole of the area around the waterhole had been burned off and looked as if it had been ploughed, “probably by the women, digging with sticks for roots”. The aboriginal explanation, given in 1960 was that water-bearing frogs had been sought in the swampy soil. Sixteen persons were found and taken to Mornington Island; three people still remained on the island. The latter were picked up during a second visit on 21st October 1948, thus bringing to a close the occupation of the island.

McCarthy’s notes, written at the time, state that “Bentinck Island is in an appalling condition. There is no drinkable water in the north of the island and this has forced [the] remaining population to come together, probably for their betterment, as they had evidently hunted together and this would have assisted them very much. The physical condition of the men and women is not as bad as that of the people brought over in 1947 but the children are in very bad shape. I think my figures are correct when I estimate that there have been ten deaths among women and children and only two births since my visit in December 1947.”

Since 1948 the Kaiadilt have lived in a small closed community near the Mission on Mornington Island. Here they have built their own fish traps and have learned to speak a little English. They have not married out of their community. ...’

37 The granting of land along the coast at the southern end of the Gulf of Carpentaria for pastoral purposes which began in the 1860s is described by Blake in his report at pp 10 - 11. The reservations of land for public purposes along the Albert and Leichhardt Rivers in 1865 and the granting of special leases under the Land Act 1910 (Qld) between 1936 and 1960 are set out in the Tenure History Ex 94.

38 In 1932, a mission (Old Doomadgee) was established by the Christian Brethren on a reserve at Bayley Point, 100 kilometres north-west of Burketown. In 1936, much of the mission was destroyed by a cyclone and, at the suggestion of Chief Protector Bleakley, a new Doomadgee Mission was established on the Nicholson River, 80 kilometres west of Burketown. Melville Read was appointed superintendent of the new Doomadgee Mission and indigenous groups and families were moved from the Burketown camp and from the surrounding station camps to the new Doomadgee Mission. The mission consisted of a mission area and a village area for indigenous residents. The mission included provision for dormitory accommodation for children. Ultimately, with the operation of the mission ceasing, the reserve area was administered under the Community Services (Aborigines) Act 1984 (Qld).

39 In 1978, the reserve created in 1905 in respect of the Wellesley group of islands and amended in 1978, was rescinded: Queensland Government Gazette, 6 April 1978, p 741.

40 In 1978, the Mornington Island Shire Council was created under the Local Government (Aboriginal Lands) Act 1978 (Qld). Leasehold title, for the objects and purposes of this Act, in respect of ‘ALL THAT LAND in the County of WELLESLEY, PARISH OF MORNINGTON containing an area of 119 200 hectares approximately, and comprising all the islands known as the Wellesley Islands, Forsyth Islands and the South Wellesley Islands, exclusive of Sweers Islands, bounded by the high water mark at mean spring tides of the main sea of the Gulf of Carpentaria, and being the area delineated on map No. SC212 deposited in the Department of Mapping and Surveying at Brisbane.’for a period of 50 years was vested in the Council.

41 On 5 August 1989, the reserve with respect to Sweers Island, created in 1934, was placed under the control of the Under-Secretary, Department of Community Services and Ethnic Affairs as trustee: Queensland Government Gazette, 5 August 1989, p 293. The reserve was repealed in 1994: Queensland Government Gazette, 13 May 1994, p 257 - 258.

42 In 1994, a deed of grant in trust under the Aboriginal Land Act 1991 (Qld) was granted to the Kaiadilt Aboriginal Land Trust as trustee for the Kaiadilt peoples of Sweers, Fowler, Bentinck, Albinia, Little Allen, Horseshoe, Margaret, Bessie and Douglas Islands, subject to the encumbrances noted on the deed of grant. The deed of grant took effect on 22 September 1994.

43 In 1994, a deed of grant in trust under the Aboriginal Land Act 1991 (Qld) was also granted to the Ngaarrkinaba/Mildiji Land Trust as trustee in respect of Allen Island. This deed of grant also took effect on 22 September 1994.

the law in relation to native title

44 The native title, which it is the object of the Act to recognise and protect, is that defined in s 223, which so far as presently relevant, provides:

‘223 Native Title

Common law rights and interests

(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

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a permissible future act.

Subsection (3) does not apply to statutory access rights

(3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case note covered by subsection (3)

(4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a) in a pastoral lease granted before 1 January 1994; or

(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.’

(Original emphasis)

45 What is to be determined upon a determination of native title is contained in s 225 of the Act, which provides:

‘225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.’

(Original emphasis)

46 Guidance as to how the requirements of s 225 are to be discharged by this Court, which are relevant to the form of the draft determination contended for by the applicants in this application, is given in the majority judgment in Ward (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Their Honours said:

‘[51] A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area. (s 225(b)) Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.

[52] It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants’ statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.

[53] Further, to find that, according to traditional law and culture, there is a right to control access to land, or to make decisions about its use, but that the right is not an exclusive right, may mask the fact that there is an unresolved question of extinguishment. At the least, it requires close attention to the statement of “the relationship” between the native title rights and interests and the “other interests” relating to the determination area. (s 225(d))’

(Original emphasis)

47 In Yarmirr, the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said, as to the rights and interests with which the Act deals:

‘[9] The rights and interests with which the Act deals may be communal, group or individual rights and interests. They are described as rights and interests in relation to land or waters. They are rights and interests which must have three characteristics (s 223). First, they are possessed under the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned. Secondly, those peoples, by those laws and customs, must have a “connection” with the land or waters. Thirdly, the rights and interests must be recognised by the common law of Australia.

[10] Disputes of the present type require examination of the way in which two radically different social and legal systems intersect. As was pointed out in the joint judgment in Fejo v Northern Territory ((1998) 195 CLR 96 at 128 [46], per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ):

“Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title (Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58 per Brennan J). Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law (Mabo [No 2] (1992) 175 CLR 1 at 59 - 61 per Brennan J). There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.”’

(Original emphasis)

48 As to the starting point of the enquiry, their Honours said:

‘[15] The relevant starting point is the question of fact posed by the Act: what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples? It is not necessary, at least at that point of the inquiry, to ask whether each claimed right and interest has qualities of the kind described by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247 - 1248; cf R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342 - 343, per Mason J), namely, being “definable, identifiable by third parties, capable in its nature of assumption by third parties, and hav[ing] some degree of permanence or stability”.

[16] Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.’

(Original emphasis)

49 In Ward, their Honours again addressed the issue for consideration in a determination. They said, as to the meaning of s 223(1)(b) of the Act:

‘[64] In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by “connection” by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the “connection” that must be shown to exist. In particular, we need express no view on when a “spiritual connection” with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.’

50 The issue was again addressed, including the issue of sufficient connection, in Yorta Yorta. In that decision, after confirming that the native title rights and interests to which the Act referred were those sourced in the pre-sovereignty laws and customs (and not rights sourced in the common law or as creatures of the Act - see [37] - [39], [44] - [45]), Gleeson CJ, Gummow and Hayne JJ said:

‘[46] That being so, the references, in pars (a) and (b) of the definition of native title, to “traditional” law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, “traditional” is a word apt to refer to a means of transmission of law or custom. 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 Native Title Act, “traditional” carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are “traditional” laws and customs.

[47] Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that 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 that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.’

51 Their Honours continued:

‘[56] ... it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate. Further, for the same reasons, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.’

Their Honours concluded:

‘[83] ... 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. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?

[84] Interruption of use or enjoyment, however, presents more difficult questions. First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

[85] Secondly, account must no doubt be taken of the fact that both pars (a) and (b) of the definition of native title are cast in thepresent tense. The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.

[86] Yet again, however, it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, “traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.

[87] For exactly the same reasons, acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned. They would be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe laws and customs of content similar to, perhaps even identical with, those of an earlier and different society.’

the existence of indigenous inhabitants in the claim area at sovereignty

52 I am satisfied on the materials, and find that:

(a) (i) At the time of sovereignty, an ethnographically and culturally separate group of indigenous peoples (‘the original Lardil peoples’) inhabited islands in the area claimed as the traditional territory of the Lardil peoples.

(ii) Since the time of sovereignty, there has continued to exist an ethnographically and culturally separate group of indigenous peoples who were, and are, the direct descendants of the original Lardil peoples.

(iii) The people named in the genealogy prepared by Dr Paul Memmott in respect of the constituent applicant group, identified as the Lardil peoples, are direct descendants of the original Lardil peoples.

(b) (i) At the time of sovereignty, an ethnographically and culturally separate group of indigenous peoples (‘the original Yangkaal peoples’) inhabited islands in the area claimed as the traditional territory of the Yangkaal peoples.

(iii) The people named in the genealogy prepared by Dr Paul Memmott in respect of the constituent applicant group, identified as the Yangkaal peoples, are direct descendants of the original Yangkaal peoples.

(c) (i) At the time of sovereignty, an ethnographically and culturally separate group of indigenous peoples (‘the original Kaiadilt peoples’) inhabited islands in the area claimed as the traditional territory of the Kaiadilt peoples.

(iii) The people named in the genealogy prepared by Dr Nicholas Evans in respect of the constituent applicant group, identified as the Kaiadilt peoples, are direct descendants of the original Kaiadilt peoples.

53 The second respondent challenged the existence of an ethnographically and culturally separate group of indigenous peoples who inhabited the coastal land in the area claimed as the traditional territory of the Gangalidda peoples.

54 The second respondent contended that the mere fact that there existed a Gangalidda language group did not mean that such a group at the time of sovereignty constituted a social, economic or political unit. In doing so, it relied upon the following statement of the anthropologist Dr Nicholas Petersen, in an article contained in the ‘Cambridge Encyclopaedia of Hunters and Gatherers’ (2000):

‘Language names are commonly used as tribal names, but it is important to understand that “tribe” in Australia bears little or no resemblance to the classic notion of tribe. The tribe was not a social, economic, or political unit prior to settlement and the term only refers to people who claim to speak a common language. All the members of a tribe did not meet one another, nor did they act as a collectivity. Where social and territorial relationships to land have undergone drastic transformation, and where the small (average 15-70) pre-colonial land-owing groups’ ties to land have been disrupted, identity and affiliation to land are now articulated in relation to the tribe (average size 300-1000 before 1788, and now 1000-3000 plus). Language names are central to people’s identity, even where they do not speak their own or other Aboriginal languages.’

55 The second respondent also relied upon statements made by Dr Trigger in a paper entitled ‘Languages, Linguistic Groups and Status Relations at Doomadgee, An Aboriginal Settlement in North West Queensland Australia’ (1987) in which Dr Trigger said:

‘I have demonstrated that language-groups neither exist as residentially discrete units nor are believed to do so by Aborigines. The only evidence of language groups acting collectively concerns two cases in which resources were sought from the bureaucratic organizations. Normally language groups are spoken about by individuals, rather than given collective behavioural expression. Thus, to the extent that analysis can posit the existence of language-groups, they are ideational “quasi-groups” or “residual categories” in Nadel’s sence (1951:185); that is they are proclaimed as a group of people who “belong together” but these proclamations can be seen as “an ideology supporting nothing”, (Nadel’s expression is actually “ideological quasi-group”. However, I have re-labelled it because my own view is that the concept of “ideology” necessarily pertains to complex issues of power relations (cf. Godelier 1978). Nadel’s intention is apparently to simply designate a body of consciously held ideas, and hence the term “ideological” seems most appropriate) or if not “nothing” then only comparatively rare cases of group behaviour oriented towards bureaucracy. Moreover, the latter cases of social behaviour are best described as temporary coalitions rather than enduring groups (cf. Boissevain 1968:554). Thus, the primary socio-political currency of linguistic affiliation is as an idiom for discourse about an aspect of the social identities of individuals.’

56 The second respondent contended that, at best, there existed at sovereignty various unaffiliated clan groups, who lived at different locations along the coastal strip of what is now claimed as Gangalidda territory. That despite sharing a common language - Gangalidda - the various clan groups did not constitute a ‘tribe’ in the sense of being a social, economic or political unit. Rather, because of the disruption to their relationship with the land and because the clans became congregated in Doomadgee, their present claims to land and identity with it, are articulated by reference to a language tribe, which did not in fact exist, having a connection to the whole of the land which was previously inhabited by disparate unaffiliated clan groups.

57 As appears from Dr Trigger’s 1987 article, he was concerned with the designation of linguistic territories by contemporary indigenous peoples as fundamental conceptual correlates of persons’ linguistic affiliations. The study group were the members of the Doomadgee indigenous community. Dr Trigger made the following statement in his paper concerning the failed attempt to form a ‘Gangalidda Society’ as a vehicle through which to agitate for more government funds for housing, other material for the Doomadgee settlement and for other purposes:

‘Following lack of support by the Commonwealth Department of Aboriginal Affairs, and argument against the idea by the local White manager, the Ganggalida Society was never formed. I have presented the attempt to form it as one of the few times I have observed the emic concept of discrete language-groups manifested in the behavioural formation of an actual language-name based group of people. In both this setting, and the land claim setting referred to initially in this section, collective behaviour by language-groups has been an aspect of social relations with Australian bureaucracies. Aborigines clearly recognize the importance of corporate social units with formal office holders and representatives in Australian bureaucratic procedure, and those most involved in Aboriginal dealings with that bureaucracy understandably conclude that conformity with the procedure leads most quickly and most effectively to acquisition of the goods and services at stake. Linguistic affiliation provides a suitably general feature of Aboriginal social identity to be used in the flexible social construction of such nominally corporate groups. While their notional corporateness may well be reinforced by such dealings with European-style bureaucracy (as has been suggested by Sutton 1980:71) (cf. also Fried’s general comments on “tribes” which spring up in colonial situations and are “created by government action” (1968:15-7)), it is unlikely that “language-groups” will develop stable internal sociopolitical unity in settlement social processes at Doomadgee for some considerable time (if ever).’

58 On the basis of that statement, it was put to Dr Trigger during cross-examination that it was reasonable to infer that ‘the same description about language groups acting collectively must be applied during the pre-contact period or the classical period’ (that is, at and before sovereignty). Dr Trigger rejected that contention. He said:

‘Well, in some respects but the obvious difference is that this is a study done in a settlement where people are congregated together, where there's been 100 years of impacts from the process of colonisation which has led the Society to change in a number of different directions and so on. I mean, there are clearly - to state an obvious thing. I mean, prior to European arrival Aboriginal people lived in small groups distributed across the landscape.

This is a population of 800 or 1000 people living in one place and so on.’

59 After having had the statement of Dr Peterson set out above read to him, the cross-examination of Dr Trigger continued:

‘The question is: that if you look at the paragraph to which I’ve drawn your attention in the conclusion section of your paper, 1987, that language groups didn’t act collectively and I’ve suggested an inference from that, that it’s not correct to think of language-named groups as significant units of Aboriginal social organisation in a pre-contact period? --- Well, I think the answer is that, to consider the importance between concrete on-the-ground social action collectively - - -

Yes? --- - - - by several hundred or a thousand people, on the one hand, and on the other hand, the way people think about, in their mind, the group of people that they belong to and share linguistic identity with and share connection to a linguistic territory with.

And is it in the latter proposition that you say that still had meaning, pre contact, and the former did not? Is that what you’re saying? --- Almost. I’m saying that the - there was - I think that the meaningfulness of the broader linguistic group in relation to a linguistic territory has undergone some change and probably become a more significant part of Aboriginal communities for the reasons that I partly outlined in my earlier paper to do with various changes in Aboriginal society. I think that the literature indicates, for different parts of Australia, that people speaking the one language and having the view that that language was connected to a particular territory was a matter of significance in pre-contact times but, in pre-contact times, people lived distributed in small family groups across the landscape and came together rarely, perhaps for ceremonies in the cases of some sources we have for parts of Australia. Across Australia, this seems like varied, the extent to which large groups of people came together for collective social action to do any one thing. But I’m stressing the importance of - if you like to put it simply - on the one hand, the practicalities of everyday land use and, on the other hand, the principles of land tenure which are in people’s minds by which they connect themselves to the landscape - - -

All right, then. Well - - -? --- - - - and I’m suggesting that the issue of tribe or language or linguistic territory is important, especially on that second matter.

While we’re on that issue, it’s true, though, isn’t it, that insofar as there’s any group which could be identified as the group which was the land owning group in pre-contact period for Ganggalida society, that group was the clan and not the language group? --- In pre-contact times?

Yes? --- Well, my opinion on that is that Sharp’s material is quite useful for us and what Sharp says is that there were these small patriclans - he doesn’t use - that’s not the term he uses - that they were the groups, according to the system of land tenure, not use, but land tenure - - -

Well, I was deliberately using the phrase, land-owning - - -? --- Yes, that they were the most significant. However, I have to make the qualification, as I was trying to make yesterday, that that means if we look across the Ganggalida coast, you have a clan at Cliffdale Creek of the Gangala/Yagamari skin and you have another one at Moonlight Creek. What Sharp said was that the members of both those clans owned both those territories. So, it is an important qualification. It just means that people didn’t have, according to Sharp, one patriclan territory; they had several connections to territories of that skin. That means that those territories, nevertheless, were separated by territories of other skins to which they had affiliations different from patrifiliation or different from patriclan country. So, next door to where their patriclan country might have been at Cliffdale Creek, would be a place which was their mother’s father’s country and then, next door, their mother’s mother’s country and so on. Now, I do say, in my report, that I think it’s possible Sharp underestimated the importance of those other types of connections to land as well, apart from patrifiliation and, of course, the main point I go on to make in the report is that I believe there’s been a process of change that’s occurred where those other forms of connection to the land and to the seas have become more important over time.

Right. I was asking you to direct your attention to pre-contact time? --- Right.

I haven’t yet asked you to explain the position now. So, do you say that it’s just too simplistic to simply say: clans were the owning group during pre-contact time? --- For this area, you’d have to say semi-moiety groups which encompass clans.

I see? --- But those two propositions are consistent. Patriclans - I would say it’s too simplistic to just leave it that and say they were the owning groups. I would say, they were the groups whereby people had primary connections to their father’s country and other countries that stood to them in the same relationship of father because of the skin system.’

60 Dr Peterson in the extract cited above is saying no more than that the attachment of language names to a group of those language speakers does not of itself constitute the group as a social, economic or political unit in pre-European contact times. That is, other circumstances must exist before it can be said that such a unit existed. Dr Trigger does not suggest otherwise. He contends that linguistic affiliation is one of the links between persons and Country and one of the links between persons in adjoining Countries which goes towards the formation of groups which have a system of normative rules relating to interests in land within the region occupied by the language group which were not simply language dependent. That is, across the linguistic territory people had a patriclan territory but also they had several connections to territory, including territory which was not patriclan territory, on the basis of their skin and of other skins to which they had affiliations.

61 As to the existence of linguistic territories, Dr Trigger noted in his article:

‘The Aboriginal language background of most contemporary Doomadgee residents consists of Ganggalida, Garawa and Waanyi: the latter two have been reported as dialects of the one language (Osborne 1966:3). (Unless otherwise designated, I use the term “language” throughout this paper to refer to separate speech varieties as conceived by Aborigines; some of these speech varieties may well be more precisely regarded as related “dialects” in terms of their structural similarity and mutual intelligibility, and no doubt this is the nature of Osborne’s language/dialect distinction.) However, a number of other languages are known to have also been spoken within the study region, and a broad reconstruction of the pre-contact linguistic setting has been completed. Maps 1 and 2 show the locations of linguistic territories from literature sources and contemporary Aboriginal knowledge respectively. A detailed discussion on the geographic dimensions of the areas in which these languages are said to have been spoken has been presented elsewhere (Trigger 1981:4-29; 1985:340-9 for Ganggalida in particular).

These areas are where particular languages are said to “belong”, implying that they fit there appropriately with other features of the landscape. When in that area using bush resources, and certainly when formally dealing with many totemic and other extra-human features of the landscape, it is appropriate to speak the language which belongs there. Other Aboriginal languages would not be effective in ritual matters; (English appears to be neutral in this regard. While not regarded as effective in this context in the manner of the indigenous vernacular, its use would not breach etiquette in the way the use of another Aboriginal language would.) indeed, use of another language may well bring forth hostility from totemic forces. For example, a story recounts how Yanyula (Kirton is a linguist who has worked on this language for many years. After changing her spelling of its name from Anyula to Yanyula “to be in accord with usage in government records” (1971:67), she has subsequently used the term Yanyuwa (e.g. Kirton and Timothy 1977.), Kirton has informed me (personal communication 1978) that while Yanyuwa is the name used by those considering this language to be theirs, Yanyula is the name used by “Garawa people”. Throughout this paper I use the latter term as it is the one used predominantly at Doomadgee) people from the west were attacked in Ganggalida country by a mischievous and always potentially dangerous being known as Gudidawa, which is believed to inhabit much of Ganggalida country. Gudidawa has been said to have its own language which is normally unintelligible to humans. However, certain old people are known to be able to placate it by addressing it publicly in Ganggalida; a few individuals have suggested that such old people can also use a private esoteric form of speech in this way. (Those suggesting such an esoteric form of speech appear to be indicating that the old people have acquired (through their age and ritual seniority) the capacity to use the speech of the Gudidawa, though on the few occasions when I have witnessed an old person mimic this speech it has resembled idiosyncratically produced stylised sets of jumbled sounds, rather than a conventionalised linguistic code. To some extent, the jumbled nature of these utterances is meant to be commensurate with the unpredictable and somewhat bizarre nature of Gudidawa.)

The concept of language as a fundamental characteristic of landscape is also evident from mythic accounts where travelling totemic figures change their language on reaching the boundary of a linguistic territory. I have previously presented one myth of this kind, where Bujarda (a variety of snake) proceeded from the west into Waanyi country; at the western extremity of Waanyi country the snakes ceased speaking Jingalu language (the language of the area from which they had come) and began speaking Waanyi - several people have reinforced the point further by recounting how the Jingalu Bujarda returned westwards, leaving the “proper Waanyi Bujarda” to proceed to their final destination within Waanyi country (Trigger 1982:77). It appears from this myth that Waanyi language and country are seen to have existed prior to the approach of the Bujarda dreamings, but the creative impetus of such dreamings’ travels are also evident from the accounts. In any case, the stated existence of Waanyi language as a fundamental feature of a particular territory is clear.

Other myths similarly recount such changes in the linguistic affiliation and competence of dreamings as they travel. For example, Ngabaya (Devil) “was talking Garawa” on its route eastwards, until at a site in the vicinity of the western extremity of inland Ganggalida country, it “looked down” towards its destination in coastal Ganggalida country and “spoke Ganggalida” from there on: and Yulunguri (Shark) “was Ganggalida” when it left a particular estate in Ganggalida country, then took on a Garawa and later a Yanyula identity as it moved westwards through the sea and visited sites in Garawa and Yanyula country respectively.’

62 He also reported that the linguistic territories which were reported in professional literature in the period 1897 to 1966 (depicted on Map 1 in the article) continued to exist in 1987 for the contemporary indigenous persons the subject of his study group. Those linguistic territories are shown on Map 2 in his article.

63 Dr Trigger’s claim that there existed a recognised social grouping which spoke a common language in the area claimed by the Gangalidda peoples, and which asserted group and territorial independence from other language groups (including the Yangkaal and Kaiadilt peoples), is corroborated by reference to other anthropological sources. What is important to recognise is that the name applied to that group and its language has not been consistent over time. The terms Yugulda or Yukulta have been used interchangeably as alternatives to Gangalidda. In his 1974 work, Tindale used the name Jokula (or alternatively Jugulda) for the tribe whose territory stretched from Burketown to Hann Creek and Massacre Inlet on the coast west of Cliffdale Creek and east to the Albert River mouth from near Escott. The anthropological material is reviewed and reconciled in Appendix A to Dr Trigger’s report (Ex 180) which is part of his PhD thesis, and was based on an article published by him in 1981.

64 In the footnotes to Chapter 5 of Dr McKnight’s book, ‘People, Countries and the Rainbow Serpent; Systems of Classification Among the Lardil of Mornington Island’ Oxford University Press 1999, tendered into evidence, he states:

‘16. Another disputed area was Allen Island. Tindale (1974:170) records that in living memory it was connected to the mainland. This seems quite unlikely to have been the case. From the earliest written records and maps by Flinders in 1802, as well as the latter accounts of Stokes and Roth, it has been reported to be an island. No one that I spoke to even suggested otherwise. The Kaiadilt, Yulkulda, and some Yangkaal claim that Allen Island lies within their territories. My records show that several Yulkulda were born on Allen Island. Horseshoe Island may also have been disputed by the Yulkulda and Kaiadilt. There was some contact between the Kaiadilt and Yangkaal in the pre-mission period, for I recorded one case of a Yangkaal man who visited Bentinck Island.’

65 In his report (at [1.1]), Dr Evans uses the term Gangalidda as an alternative to Yukulta.

66 The statement of Dr Peterson cited above does not persuade me that Dr Trigger, and the other anthropologists who have studied the local indigenous peoples who inhabited the mainland coastal strip at the southern end of the Gulf of Carpentaria, erred in expressing the opinion that there existed an identifiable indigenous group, recognised by other indigenous groups, which belonged to that coastal Country and had rights to that Country. The contemporary observations as recorded in the history were that there existed indigenous groups that inhabited the coastal fringe and that when they were returned from Burketown to the area, they returned to specific areas with which they had a connection. These people were a recognisable group separate from the Garawa, Waanyi or Yanyula people and the Mingginda people, whose lands they absorbed with the demise of those people.

67 I am satisfied that there was a communal group at the time of sovereignty which was an ethnographically and culturally separate group of indigenous peoples (the original Gangalidda peoples) who inhabited the coastal land stretching along the mainland coast of the Gulf of Carpentaria from Massacre Inlet to the eastern bank of the Leichhardt River, where it enters the Gulf of Carpentaria, which is claimed as the traditional territory of the Gangalidda peoples. I am further satisfied that since that time, there has continued to exist an ethnographically and culturally separate group of indigenous peoples who were, and are, the direct descendants of the original Gangalidda peoples.

68 I am satisfied that the present applicant group which identifies itself as the Gangalidda peoples being the people named in the genealogy prepared by Dr Trigger, are the direct descendents of the original inhabitants of the territory described in these proceedings as the traditional territory of the Gangalidda peoples.

rights and interests under traditional laws and customs

69 These findings that the original Lardil peoples, the original Yangkaal peoples, the original Kaiadilt peoples and the original Gangalidda peoples each occupied part of the claim area at sovereignty, does not, without more, identify the nature of the rights and interests which, under traditional laws and customs, those people held over their traditional territories. As was said by the majority in Ward:

‘[93] ... The finding that predecessors of the claimants occupied the claim area at sovereignty does not, without more, identify the nature of the rights and interests which, under traditional law and custom, those predecessors held over that area. The fact of occupation, taken by itself, says nothing of what traditional law or custom provided. Standing alone, the fact of occupation is an insufficient basis for concluding that there was what the primary judge referred to as “communal title in respect of the claim area” or a right of occupation of it. If, as seems probable, those expressions are intended to convey the assertion of rights of control over the land, rights of that kind would flow not from the fact of occupation, but from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country.’

70 The indigenous witnesses, in different ways, in these proceedings claimed a right to speak for his or her Country. Some expressly disclaimed a right to speak for another person’s Country. This right to speak was a right which was claimed to have existed and been possessed by the predecessors of the applicants under traditional laws acknowledged and traditional customs observed by those predecessors back to and prior to the time of sovereignty.

71 As the passages cited above from the judgments in Yarmirr and Ward make clear, to state the right as ‘a right to speak for Country’ lacks the precision required by the Act. In fact it is the expression of a concept which embraces a ‘bundle of rights’ varying in number and kind, which may or may not be capable of full or accurate expression as rights to control what others may or may not do with the land and waters: Ward at [95].

72 Until the decisions of the High Court in Yarmirr and Ward, the claims in this application were for a determination that the applicants were entitled to the right to possession and occupation of the claim area to the exclusion of all others, whether they were indigenous persons or not. The right to exclusive possession and occupation carried with it the rights to control access to the claim area, to control the use of the area and to control the activities permitted to be carried on within it. Further, the evidence of the relevant witnesses was prepared and directed to establishing the existence of such rights at sovereignty and their continued possession and acknowledgement under traditional laws and customs from those times to the present. That is, the evidence presented by the applicant group on its face was directed to a different set of rights and interests than those the subject of the draft determination pressed by senior counsel on behalf of the applicants in his final submissions.

73 The need to identify with some particularity the content of the traditional rights or interests claimed was stressed by the majority in Ward, where their Honours said:

‘[88] It may be accepted that, as counsel for the Ningarmara claimants submitted in reply, “a core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’”. It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others (cf s 225(e)). The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.

[89] The expression “possession, occupation, use and enjoyment … to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of “possession” of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.

[90] As we have said, it may be accepted that the right to be asked for permission and to speak for country is a core concept in traditional law and custom. As the primary judge's findings show, it is, however, not an exhaustive description of the rights and interests in relation to land that exist under that law and custom. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with “country” in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.

[91] Reference was made in Mabo [No 2] to the inherent fragility of native title. One of the principal purposes of the NTA was to provide that native title is not able to be extinguished contrary to the Act (s 11(1)). An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land.

...

[94] It is important to explore issues of this kind because questions of extinguishment of native title cannot be answered without first identifying the rights and interests possessed under traditional laws and customs which it is said have been extinguished. There is much scope for error if the examination begins from the common law expression of those rights and interests. Especially is that so if a portmanteau expression used to translate those rights and interests (“possession, occupation, use and enjoyment … to the exclusion of all others”) is severed into its constituent parts and those parts are then treated as they would be in the description of some common law title to land.’

74 The existence of a right to control access to Country and the need to obtain permission to enter and engage in certain activities on it, was challenged by the respondents, at least insofar as it related to sea Country. The challenge was based upon what was alleged to be inconsistencies in the evidence of indigenous witnesses, concessions that permission had never been refused by witnesses when it was sought, and general observations that people appeared to move about in the seas abutting the islands and fish there without seeking express permission from anyone. Within each of the applicant groups there were witnesses who said, for example, that Lardil people did not have to seek permission to enter Lardil land and waters, whereas non-Lardil people did have to obtain permission. Similar statements were made for each applicant group to the effect that non-members of the group were excluded from access to Countries or traditional lands as a whole without the permission of an authorised group member. To take those answers in isolation and out of context is too simplistic an approach, and one redolent with the probability of error.

75 The systems which operated within each of the applicant groups were complex. The intervening circumstances during the mission period on Mornington Island and the greater degree of inter-marriage between members of the applicant groups makes for a greater practical complexity than that which existed at the time of sovereignty. The complexity is best illustrated by taking an example of each system given with respect to Kaiadilt, Yangkaal and Gangalidda Country. The position was not relevantly different in respect of Lardil Country.

76 Roger Kelly, a Kaiadilt man, was 11 or 12 years of age when he and his family were moved from Bentinck Island to Mornington Island. He gave evidence of, travelling between Bentinck and Sweers Island with his mother and father for camping and hunting purposes and, of his observations of Kaiadilt peoples hunting and fishing the waters surrounding Bentinck and Sweers Islands. In his oral testimony he elaborated on evidence contained in his affidavit dealing with permission. He said:

‘... In paragraph 32, you say:

When turtle and dugong are caught the meat is shared with the people from that area. It is important that the owner of the country gets a fair share of the meat. If the hunter did not give it, there would be a fight and the owner would say, ‘No more hunting in my area. Make that the last. No more.

Who did you learn that rule or practice from? --- Jack and Pluto.

Jack and Pluto? --- Yes.

You say that:

If you are going past someone else’s country you must sing out and get their permission.

Who told you that? --- Jack and Pluto.

Anybody else? --- Pat Gabori.

Yes. And did anybody else tell you that? --- My aunty.

Is that Aunty Venus? --- Yes.

And when you were a young person on the island, did you yourself see that happening? --- Yes. Even if they want go out to certain places they have to let the people know that they got to go to that certain - somebody’s country. They’ve got to make a bushfire or something, send a person to go and let them know.

Does that still happen today? --- No.

What do you do today? What practice do you follow today? --- They just ask the owner and go out.

So they don’t light the fire in the same way? --- No. If you let that person go camping in one area, well, they can go out hunting. hunting. [sic]

All right. You say that that’s what happens today. What about with your own children and other young people? Are they taught about that? --- Yes.

Do they follow the same - - -? --- They follow the same.

Does it ever happen that somebody gets cheeky or doesn’t ask permission? Does that happen sometimes? --- Yes, it does.

And when they get cheeky or they don’t ask permission, what do people do? --- Well, the owner of that country talk to them and will tell them.

What about if somebody doesn’t share the turtle or the dugong or the fish? What happens if they don’t share? --- Well, in those days, people - they used to keep it, so next time if that person go out again, you have to tell them, no, you can’t hunt on my country.

And what do people do these days? --- Oh, they - they go out anywhere without asking, or sometimes, some people who were taught, they go and ask the owner of whatever place they want to go, ask the owners for that country.

All right. You say, in paragraph 34, that fish traps are owned by different groups of people. You cannot take fish from the fish traps on some one else’s country, that you’d get speared or hit on the head if you did that:

If I asked permission, I could do it. The owner can give you permission. They also have the right to say no. If they do that -

that’s say no -

that’s bad luck. If the owner wanted to say, “You’re taking all my meat. Don’t come here any more,” then I would not go around there. He has the right to do that. It is his country.

Who told you about that? --- My Aunty Venus.

Yes? --- Jack Yarak and Pluto.

All right. You talk, in paragraph 35, about it being the same for Lardil people and Gangalidda and Yangkaal. You talk about:

Two Kaiadilt men got killed in Lardil country. If I go hunting around Forsyth, I give the owners meat. I have asked Nelson for permission -

Is that Nelson Gavenor? --- Yes.

“And he had given it to me.” Have you done that just once or more than once? --- Oh, more than once.

Can you say how many times? --- Oh, well, when I feel I want to go out hunting.

All right. In paragraph 37 you say that:

Under Aboriginal law if you go to another man’s country without his permission, they spear you.

Who told you that law? --- Jack Yarak and Pat Gabori and Pluto.

All right. And what happens today if you go to another man’s country without his permission? --- They don’t do that today. They usually go and ask the owner of the country, dulkuru dangkaa.

All right. So they don’t spear you today? --- Mm.

You say in paragraph 38 that:

Under Kaiadilt law, I have the right to say to a fisherman, “You’re on my country, go back.”

Who told you that you’ve got that right? --- Jack Yarak and my Aunty Venus.’

77 In cross examination, he said:

‘MR BOND: Okay. Well, when those old people were telling you the stories like that, using that language, the country they’re describing, is it the country just of that clan group that they’re talking about, or are they saying the country is the country of all of the Kaiadilt people as a whole? --- All the whole.

Beg your pardon? --- All the Kaiadilt people.

All the Kaiadilt people? --- As a whole.

That’s what they told you? --- Yes.

Are you sure about that? --- Yes. It meant for the whole Kaiadilt people as a whole, the whole area around Bentinck.

The whole area, what? --- Bentinck Island, the Kaiadilt.

Right. You see, I don’t really understand that, Mr Kelly, because when I asked you what they told you, you used words to describe this as your country, about a particular area. In what way did they tell you that it was the area of the whole Kaiadilt people as a whole? --- Oh, sorry, I didn’t catch up with you at first, but now I can understand. It’s just for the area, say my family, the Yarak’s family, and my sister, and myself, in that area right from Kumbali to the - well, that’s in our area, see. As you can see, all them little creek, like, Kaiadilt people used to just go by those little creeks. One creek, that belongs to that person. On the other side of the creek, that belongs to the next person.

Yes? --- That’s how it goes.

Well, let me see. I’ll paraphrase and you tell me if I’ve not got it right, and it’s important that if I don’t get it right you’ve got to tell me that I haven’t got it right, okay. Are you saying that the way the old people have explained it to you different areas - an area belongs to a particular group. The area belongs to that group, and they can tell you which area it is, but that area doesn’t belong to a group from a completely different place. It only belongs to the group from that place? --- You’re right there. It’s not - I mean, people from Nyinyilki wouldn’t take from Kumbali to - because it’s not their place.

Okay, fine. I think I got the gist of what you’re saying, but I might ask Dr Evans to repeat it to me.

DR EVANS: He said “You’re right there. People from Nyinyilki wouldn’t regard Kumbali as their own place.”

MR BOND: And what is it that makes a place your place? What is the connection between you and the place that makes it your place, your country? Can you explain that to me? --- Because you was born there and your mother or father or your close family belong there, and if that country is given to you by your father or grandfather, well, you have right to claim that country. Where a certain person was born, he got right to claim that; that’s his birthplace.

But not yours? --- Yes.

So do you feel - so let me see again. You feel a particular connection to the country you have described as your country because you were born there, and your father; it was your father’s country as well. Is that right? --- Yes, well, I prefer now staying at my birth country because it’s mine, because I was born there, but with my father’s country, it was given to the next brothers.

Yes, I got that wrong, sorry. I didn’t mean to mislead you. Your father’s country is not your country; he’s given it to someone else. Is that what you say? --- My father - my aunty gave my youngest brother the country, my father’s country, so I’ll prefer to have my country and my mother’s country because we believe that mother is more - more to us because, you know, them carry us and them suffer for us and them carry us when we’re little kid.

Right. I think I’ve probably confused everyone. Where is your father’s country again? --- Bilinabangathi, top end of - south of Oaktree Point there, Rukuthi.

Oh, right at the top, okay. And whose country is that today, your father’s country? --- My youngest brother’s country.

He’s your - - -? --- My youngest brother.

Okay. Well, then, you feel a particular connection to the country that is your country. Do you feel the same connection to some other part of Bentinck Island that is not your country? --- Well, I’ll prefer to stay in my country.

Right, okay. And according to the way the old people explained Kaiadilt law to you, would you be able to just go to someone else’s country without their permission? --- Well, I can go to my mother’s country, or my father’s country, or my cousin’s country.

Well, you’ve specific relations there, so you’re allowed to do that? --- Yes.

Is there part of Bentinck where it’s someone’s country but it’s not a relation of yours? --- No, we all - we’re all - we’re all family so we’re all relations, connections there, because, you know, we go by our family. Like, my mother come from - her family up at Minakuri.

Right? --- And if I want to go from Kumbali to Minakuri for visit, I can go there.

Without seeking permission? --- Yes, and if I want to go to Oaktree Point where my father’s country, I can go there.

Is there anywhere on Bentinck that you think you need permission before you go? --- I think, you know, there were - it’s only a place where you didn’t have to go. It’s only where the story place.

So there might be a particular story place you’d need permission to go to? --- Yes, like that cave there. You couldn’t go through there. You couldn’t go there.

DR EVANS: He’s pointing to the cave at Wamakurald, W-a-m-a-k-u-r-a-l d.

MR BOND: Right. But in the olden days, in the olden times, not today, but according to the stories that the old people have told you, did Kaiadilt people from one country need the permission of the Kaiadilt people from another country to go into that country? --- Oh, yes.

Right. So you say that those rules - sorry. And you needed permission to fish in that other Kaiadilt person’s country? --- Yes.

Because it is was not his country? --- Yes.

But are you saying that those rules don’t apply so strictly today? --- No, because those people are free to go - wherever their families are, well, they can go to that area.’

78 Evidence as to Yangkaal Country was given by Nelson Gavenor, a Yangkaal man. He said:

‘All right. Would a person from one clan group on the same island - if that person wanted to go down to the south of the island to a different clan group’s country, would that person need to ask permission of the Dulmadas of that clan group? --- That person need to ask for permission before going into another tribal area.

And the same for fishing or travelling or - - - ? --- The same goes for fishing and travelling, hunting purpose.

And then if - yes. Is there a difference between travelling - do you still need permission to travel on land and to travel on sea? Is there a difference between the two? --- There are differences between just travelling through the land. You must also ask for permission to go through some tribal group’s country, to get permission from that tribal group before entering into that tribal country, you know.

But if I understand you correctly, there is no difference in the rule for land or sea. If you are travelling through land country you need permission of the Dulmada, and if you are travelling through sea country, of that particular group’s sea country, you need permission of the Dulmada? --- Yes.

So in that respect it’s the same; is that a fair statement? --- Yes.

And when you speak of questions of owning country, and you have used those words “we own the country,” who owns the country? Is it the clan group that owns its country or the Dulmadas that own the country? --- Well, the Dulmadas could own it and the clan group or the tribal group of people who live in such places, in such tribal areas, you know.

Right, okay. Well, let me continue on with the same sort of idea. If you’ve got a clan group on Denham Island and you have got some clan groups on Forsyth Island, and again I am talking about the olden days and how you think the traditional law must have worked then, does it make sense to say the clan group on Forsyth Island owned the country of the clan group on Denham Island, or do they each only own their particular country? --- No, it was common sense that each tribal group knew what extended country they did own, such as Forsyth. There was also a tribal group of people, Yangkaal group of people over there, who also own part of Denham Island as well.

I can see how in a particular case one tribal group might, by connection, have rights to another group’s land. Let me see if I can approach it another way. Are there circumstances in which if there are two separate clan groups - both of them are Yangkaal groups - and a person from one clan group going to another clan group’s country would need to ask permission of the Dulmadas, and they don’t have - there is no specific family right that says “We go automatically, we don’t need the Dulmada’s permission.” Would it make sense then to say, well, this people had rights to that country? --- Yes, yes, both sides, see, two groups of them.

Both sides had rights to each other’s country? --- Yes.

Am I understanding that correctly? --- Yes. If I can - if you could let me explain.

Sure? --- Same with marriages. My wife might be from the northern side or the western side, and we sort of move backwards and forwards, you know, in clan country, and if a child is born back over there or even on this side, that also gives the child right as well as the parents to enter tribal clan groups’ areas, you know. But all in all, two tribal groups - like if it’s only Yangkaal, you know, you feel free more to move about as well, you know, in both sections, country.

You feel more free? --- Yes, and more free.

More free than say a Lardil person to move through the Yangkaal area? --- Yes, yes.

It seems - and I will say something but I will invite you to correct me if I am mis-stating it. It seems as though even though you might feel more free, if there’s two groups and they are each Yangkaal, the members of each group might feel more free than Lardil, than European, than Kaiadilt to move through the country, but the rights of one clan group to the country are stronger rights than the rights of a member from another clan group to that country? Does that makes [sic] sense or is that not correct? --- No, no, no. Both groups, if they’re both Yangkaal groups, it will also, you know, be right, and the rights permitting another group to come in, and it’s an agreement sort of way because both groups are from the one tribe, you know. And it doesn’t matter what tribe you probably are, if it’s eastern or Balumbenda person that’s on Forsyth giving permission for a Kaiadilt person to come on. It’s agreed to by the western Yangkaal tribe also.

I think I am clear. I think I still will ask you some more - - - ? --- I’m trying to explain it.

I understand you are trying to; I am not suggesting you are not trying to help. And I am struggling a little bit but we will see how far we go. I am still a little bit unclear because if another Yangkaal person needs to ask permission of the Dulmada of another area before going into that area, but the person who is from that area doesn’t need to ask permission, then it seems to me that they don’t have the same rights to that country. The person who doesn’t need to ask permission to hunt there seems to have a stronger right than the person who does need to ask permission even though they are both Yangkaal people. Have I misunderstood what you are trying to explain to me? --- That question is a little bit hard to try and pick up what you are saying.

It’s true to say that a Yangkaal person who comes from one particular country - the Dulmada of his clan group are the people responsible for that particular country. They speak for that country. They have responsibility for that country. You agree with that so far? --- Yes, yes, that’s right.

And a person from a different part of still what you have described as Yangkaal country could not go on the first person’s country without getting permission from the Dulmada; is that right? --- Going back earlier, if you remember, I was talking about tribal skin law. That agreement could be attached through the skin clan law as well, so it’s still an agreement that’s always there in the tribal law. Anyone could go to the east or to the west, south, or to the north if you talking about the one, say, tribal group, if it’s Yangkaal, but, yes, you split those two groups up. Through our skin law - of course, we are related through custom and skin law - we feel free either to ask or not to ask at times if you need to go into someone’s country.

Let me ask - I will take it from another direction. A Yangkaal person - sorry, I will start again. A Kaiadilt person coming into Denham Island would need to ask permission of who? The Dulmada for Denham Island; is that right? --- Yes, yes.

And are you one of the Dulmadas for Denham Island? --- Yes.

So a Kaiadilt person if he wanted to come on to Denham Island would have to ask you or one of the other Dulmadas for Denham Island? --- Yes, yes.

And same if that Kaiadilt person wanted to fish or hunt, he would have to ask you? --- Yes. Or remember I said earlier, it can be a group of people as well, you know. If I’m not there, well they could go to the next person. Say that you Dulmada. “Could you give me permission to hunt here or fish”? And the next person could also give that permission as well.

If the next person was a Dulmada or could it just be - - - ? --- Yes, yes.

But if he just came up to somebody he saw who was not a Dulmada and said “Can I go fishing there,” according to your proper law, that person should say, “No, you’ll have to ask the Dulmada. You’ll have to ask Nelson or someone else who is Dulmada.” Is that right? --- Yes.

But if that Kaiadilt person - well, let me start again. Do you know who the Dulmadas for Bayley Island are? Are you one of the Dulmadas for that Bayley Island? --- No.

You are not? --- No.

Who are the Dulmadas for Bayley Island? --- Well, we’ve got a clan group of Yangkaal people who are Dulmadas for the western section.

I just couldn’t hear you then? --- We’ve got a clan group of Yangkaal people for the western section who are Dulmadas.

Right? --- For the western - the Balumbenda, for that western section.

Okay. Now, those people could - could Kaiadilt people ask them for permission to go on to Denham Island where you are Dulmada? --- Yes, yes, they could ask as well, you know.

They could ask you because you are the Dulmada, but why is it that Dulmadas on the western group that you are talking about - how could they speak for Denham Island? --- They could speak on behalf of the country itself. Earlier, too, I said as far as Denham Island here in the north, it’s all Yangkaal country and they represent the Yangkaal tribe of people as well.

So are you saying that any Yangkaal Dulmada can speak for any Yangkaal country? --- They could represent - yes, any Yangkaal leader could represent and give permission.

So that you - - - ? --- As Dulmada, yes.

And does that mean that any Yangkaal Dulmada has all the responsibility for the whole of country you say is Yangkaal country and not just for their particular part of Yangkaal country? --- You can put it that way, you know. All the Yangkaal tribal groups can be responsible for the whole of Denham Island, the whole of Forsyth Island, and the other islands as well.

But is that a more modern development or is that how the law was back in the olden times? --- It’s not a modern development because - I am finding it a little bit harder to try and explain to you. This tribal custom and law was handed down, you know, from generations, from the stone age times, and today’s people could see it as modern times but it isn’t.’

79 Evidence as to Gangalidda Country was given by Reggie Robertson, a Gangalidda man. He said:

‘Okay. So you just went up there in a four-wheel drive, driving up there?--- Yes, four-wheel drive, yes.

So you would have gone through a lot of different groups’ country ‑ ‑ ‑?---Yes.

‑ ‑ ‑ on your way through?---Yes.

And did you ask permission on the way through of each group?---No, because they’re my relations, see, my cousin, my brothers, uncle, aunty, sisters.

So you don’t need to ask permission?---I don’t have to ask.

If you’ve got relatives in the different groups?---If I’ve got relatives in the family from different land, different country, I don’t have to ask.

Do you have to let them know you’re coming?---No. We just went just like that.

And what did you do with the fishing? Did you share the fishing, what you caught with them?---Oh, yes, with fishing we join, share fish.

You shared fish with the owners of the country up there?---Yes.

...

Your paragraph 20 of your affidavit - I’ll read it to you. You say:

The Ganggalida country I know the best is from Old Dumaji [sic] east to the Albert River. That is all Ganggalida country. It includes the sea.

And then you go on to say:

The sea from Old Dumaji [sic] to Point Parker is shared with Yangkaal people. Kaiadilt people share some of it as well.

?---Yes, because the old ones talk the same language.

Right. What do you mean “shared”?---Shared.

Are they owners for it as well as you?---They can be the owners of the sea, sea rights, those Ganggalida people, the Garrawa, Yankgaal and Ganggalida.

From Bayley Point to Point Parker, that’s your country, isn’t it?---Yes.

So you’re the owner of that area and of the sea?---No, my uncle and aunty.

Not you, your uncle and aunty?---Yes.

But not you?---No.

So you’re not an owner?---No.

Won’t you become an owner if your uncle and aunty die?---Oh, they might hand me over the place then.

But they might not. They might hand it to someone else?---Might hand it to somebody else.

So are you not - would you say that your uncle and aunty are the main people to speak for that country?---Yes, that’s right.

But not you?---Not me.

So your uncle and aunty share some part of their sea country with the Yangkaal people; is that right?---Yes.

Do you know which ones of the Yangkaal people?---They used to share with my uncle Larry Gavenor.

Larry Gavenor is a Yangkaal person?---Yes. Douglas Burke.

Douglas Burke is another Yangkaal person?---Yes.

So when you say share with the Yangkaal people, do you mean with particular Yangkaal people, not with all of the Yangkaal people?---Particular ones.

Okay. And it will be whoever is the Yangkaal people that are the owners according to Yangkaal law of that particular area?---Yes.

...

Right. In paragraph 28 - I’ll read it to you:

The sea in that Point Parker area is shared with Kaiadilt and Yangkaal people. Mildiji, Allen Island, is shared with them as well.

Do you know which Yangkaal people you share - sorry. Is Allen Island part of your sea country?---Yes, my grandmother was born there.

Right?---My father’s mother.

Okay. And do you know the name of the Yangkaal people that you share it with?---Nelson Gavenor, Douglas Burke, Eric Gavenor, Lance Gavenor.

So that the same as when I was asking you about sharing the sea from Old Dumaji [sic] to Point Parker? You share it with those people, share Allen Island with those people that you’ve named. You don’t share it with the whole of the Yangkaal people. It’s just the specific ones you’ve named?---The specific ones.

And what about Kaiadilt? Do you know which Kaiadilt people are the ones that share Allen Island with you?---Yes.

Will you tell me which ones?---Ann Murdangathi, Judy Walpa.

...

MR BOND: And is it the same situation - is it the same as you explained about Yangkaal? You can share with those particular Kaiadilt people but not all Kaiadilt people from Bentinck?---No, because they got their own place. We share - we share meat with them, and then they share with us.’

the treatment of the evidence

80 Because of the overlay of differing, and differently sourced, rights, it is critical that the evidence of indigenous witnesses be carefully placed in context, so that responses to questions be context specific, otherwise the answers are wont to mislead. Further, the protocols adopted by indigenous persons have to be viewed against a patchwork of rights, with the possibility of a Dulmada being a senior person within a clan group with the right to control activity within the group, creating an ad hoc right where none otherwise exists. Such a right is created by the Dulmada personally granting approval to engage in an activity for an indefinite duration, or for a limited duration for a limited purpose.

81 The dangers in ignoring context were highlighted by Dr Evans, in the following evidence, which I accept:

‘MR BOND: ... Can I take you to a passage from Netta Loogatha’s evidence, 744, commencing at line 14:

“Now, in relation to the traditional laws that we’re talking about in this case, can I suggest to you that there was a traditional law that the Kaiadilt people on Bentinck Island, which includes yourself - the traditional law was that you could fish and hunt wherever you pleased provided you shared? --- Yes.

You didn’t require permission from people to fish and hunt. You only had to share? --- Yes.

You’ve talked about the permission system in your evidence, though, haven’t you? --- Yes.

You’ve talked about the need to obtain permission. What I’m actually putting to you is that it’s not part of the traditional law of the Kaiadilt people living on Bentinck Island needing to ask permission of each other provided they share. Do you understand that? --- Yes, I understand everything that you’re saying - that they’re saying there.

And you agree with me? --- Yes.”

Now, isn’t that absolutely inconsistent both with the proposition that people actually observed this notion of obtaining permission and that it’s there as a normative proposition in the contemporary scene? --- I think when you ask these questions there’s competing - first of all, there’s competing ways people are presenting the past, and there’s, as you’ve pointed out, a tendency to idealise a golden age, to talk about the days on Bentinck as ones where everyone just shared everything around, and the same person can assert within minutes - and I’ve often been there when people have done this - yes, we always used to care and share; we didn’t have any fights; we used to share all the time, and yes, so and so got speared because of stealing food. I think - you know, we’re talking about normative rules there. I agree.

And you understand and I suggest the degree of actual observance of it? --- Well, it’s an element, but let’s just focus on normative rules for the moment. Let’s say you have a complex set of propositions of the type X unless Y. So you say, well, you should ask unless you’re with someone else, or in discussing hunting and fishing one needs to distinguish two or three types. This is what you do in type A; this is what you do in type B; this is what you do in type C, the sorts of things that I’ve been talking about the last couple of days. Now, what I would regard as the sort of proper description of that system entails both assertions, which is what people certainly make, and assertions about the relationships between alternative things. One situation: does it prevail over another, or is one in less condition, or a codicil or something like that. Now, in all the time that I’ve spent working on Mornington Island, it’s never been a feature of people’s language use, whether it be their Kaiadilt, their Lardil, their Aboriginal English, their standard English, that they phrase things in terms of these sorts of conditions, unless X, unless Y, or something like that. So what you find because of that is people will make - assert contradictory propositions and would not be as disturbed about them as we would be in a court of law. In a court of law, you know, you say, well, X, and then you ask them once more and they say Y, and there will be a logical contradiction between X and Y, so you try and get someone to say, well, is it X or is it Y. I mean, that’s the basic form of the argument, but what one is looking for is - as an anthropologist you’re trying to construct a model that takes these tacit relations between competing propositions and observe to try and see how they’re explicit. I understand some of the problems with the submission I made with regard to interpreting the evidence, but I think it’s really important to see how the process of cross-examination can pick out things which look like they’re contradictory, because you get someone to assert to one proposition, which they will often assert. There’s no doubt in my mind that people will often say, you know, you don’t ask permission. What do they mean there? Is it a global statement that you never ask permission or is it a situated statement such that when I’m there, when I’m on Bentinck Island with people, with family, I don’t need to ask permission. That’s why I took the care this morning to go through these classes of cases, because you get different protocols applying in different cases, and what we need to be sure of is which particular subcase we’re asking about here. So when someone says “hunting and fishing” - say if you asked Netta, “What are you talking about? Are you talking about going out on a boat together? Are you talking about a group of people fishing?” That’s why it’s important to get down to this concrete level.’

82 Although Dr Evans was speaking of the Kaiadilt peoples, he has substantial experience with indigenous communities generally, including the Lardil peoples, and also the conditions on Mornington Island. As a result of historical circumstances, some indigenous peoples from outside the Lardil group have come to live in Lardil Countries on Mornington Island and have acquired rights under the traditional laws and customs of the Lardil peoples to access and engage in activities in those Countries. Further, they have engaged in joint activities which, in Dr Evans opinion, has tended to mask the underlying requirement that permission to enter the Country and engage in the activity is either held as of right or is implicitly given and obtained because of the particular social group engaging in the activity. Dr Evans’ observations are consistent with those of Dr Memmott, which I accept:

‘MR HILEY: ... So is it fair to say that often when people are talking about entry protocols or permission systems, or whatever, it is more often than not in those sorts of contexts, that is in the context of taking particular resources or going to particular places like fishtraps? --- Well, I talk - I tried to explain that there was a spectrum of degrees of entry protocol from formal to informal, and I think there are a lot of informal categories where there’s - there’s no asking permission outright. I’ve mentioned some of them. One is that there was - there’s a lot - - -

I am sorry, I am not really inviting you to say what you’ve already said? --- Okay.

And if you think you have already covered it, well say so? --- Can you just quick, in a short sentence, put the question again.

Put the proposition again? Yes. That is that - - - ? --- I mean, I can see that you’re asking - you’re saying it’s suggested people just ask permission for resources but not to go into country?

Yes. Well, that’s the general thrust. Not only of the examples that you have given in your report but the general thrust of the evidence as well that - - - ? --- I don’t think - - -

- - - the permission system seems to operate in one of those two circumstances, that is in relation to the taking of particular resources - not any resource, but particular resources - and secondly, in relation to going to certain places such as fishtraps? --- I couldn’t - I don’t think I agree with you that it’s - that’s what come out in the Aboriginal evidence. I think it’s fairly strong in the Aboriginal evidence about needing permission to go to countries. I think that’s an ideology in practice amongst the Lardil people. Many of these permissions are implicit or long-standing. Partly, in some cases, due to families being related. And once again you’ve got to think of it in terms of the life cycle here. As a child grows up, they’re going to be looked after at times by their grandparents or - you know, both sets of grandparents. They might be spending time in growing up in their grandparents’ country. Their grandparents might be encouraging them to come and visit them or to travel with them to their country, and so that by the time they get to adulthood they have, you know, standing permission to go into their grandparents’ country. Once they marry, they’ve - after a period of time if they’re spending a fair bit of time with their wife’s parents in their - in their wife’s parents country, there’s - there tends to become a long-standing agreement that that’s possible. And Lindsay said - no - Kenneth Jacob said that he could go to his wife’s country on Sydney Island without asking permission. So there are other examples, then, of neighbouring countries. As I said, people in neighbouring countries who are part of the same socio-geographic block and who are continually assisting one another in hunting and in coming together for dances, and so forth, are going to have a sense of sharing their countries. There are other examples which might fall into the category of - of a particular country owner owing a favour to another person from another country, and that person saying “Well, I’m here to” - putting pressure on them to let their coming in. And Anthropologists call that “demand sharing”. And there’s a paper on that by Nicolas Evans - by Nicolas Peterson. It’s a well-known paper. So you’ve got all of these - all of these situations where - and I mentioned that when people do come, it mightn’t be a matter of saying “Can I have permission to be in this country and go hunting”, it’s - it’s simply a matter you arrive and you’re hosted and you are invited - and many witnesses made - or a number of witnesses made reference to that, that they were - they were good hosts and that they would take them around. So - - -

All right. Well - - - ? --- It becomes an abstraction to try to sort of say well, in all those situations people didn’t - didn’t ask permission when there are all of these long-standing agreements implicit - permissions, entry protocols - and I think where it becomes very sharp is when strangers come in and Robyrta mentioned her father telling somebody in the camp on Mornington Island that they will - they will be killed if they don’t - if they come back and don’t observe protocols. And Lindsay said something about if you went into a Yangkaal country without asking permission, you would be killed. So that as you go further abroad, these things - the formalities become much stronger. But as - there’s also a generational thing. Young men - if you’re a young man travelling through country, you’ve - you know, you’ve got a bit of a problem there, too, and usually, you know, Dulmada are much - going to be much more tolerant of older people with whom they’ve had life-long experiences of working on cattle stations or being initiated together, of carrying out initiation dances for one another, of you know courting, and all of these life experiences. If you spent a whole lifetime of experiences with a group, you’re going to be much more informal and flexible with them coming into your country, but if some young man comes in and breaks the rules, you’re going to be a lot tougher with him. So I think there’s - the young people sort of have that ideology firm in their minds that they’re supposed to ask permission.

Okay? --- But that doesn’t mean they don’t break the rules, and that was

alluded to at times in the evidence as well.’

83 Dr Memmott, when cross-examined by reference to the writings of Dr McKnight in his book ‘People, Countries, and the Rainbow Serpent; Systems of Classification among the Lardil of Mornington Island’, further explained the importance of context to an understanding of protocols operating between persons from one Country and apparent strangers to it. He said:

‘All right. Then can I take you to the paragraph on page 117. That’s the first major paragraph on that page.

“Although the Lardil say that land belongs to all, and that everyone has a right to travel and hunt wherever they please, nevertheless Dulmada have special rights. These rights are first and foremost exercised by the senior members of the country, who may be a man or a woman, but in practise is usually a man. Although outsiders may hunt along the shores, they should seek permission to use the fishtraps and they should share any big fish that they catch with the Dulmada. Permission must be sought to gather pandanus nuts as well as food from some other food-bearing tree such as cycads, and to cut branches from certain trees to make spear handles. The right to decide when a swamp is ready for the first picking of water lily bulbs and when panja may be collected rests with the senior Dulmada. Normally in these matters requesting permission was quite notional because people often hunted together and they were usually so closely related, for example, members of countries 1, 2 and 3, that permission was not necessary. But the senior Dulmada could always make an issue out of the matter. Hence it was always safest to ask, particularly if one did not normally frequent the area. In this society where everyone’s track was known, it was impossible to forage in secret. If rights were infringed, then the transgressor could be tracked down and revenge taken by physical means or sorcery. I recorded a few sorcery cases of this type. They centre on the fact that a man had clearly marked out an area where he intended to gather plant food, but his right to do this was blatantly ignored. Outsiders did not have the right to construct anything of a permanent nature such as a fishtrap or by extension nowadays a house or garden. Although people had the right to hunt in other people’s country, they did not have the right to reside permanently unless they received permission.”

Now, it’s a long paragraph. I want to ask you the same question about those parts of it with which you agree or disagree? --- Well, I think the main point that we’re at variance is that in my view that there are long-standing or implicit permissions in place for people to travel through countries, but those permissions derive from Dulmadas themselves, which gives one the impression that people have - certainly that they have a right to travel and hunt where they please, but masks these long-standing agreements, yet at the same time it seems to be referring to that when he says there’s a notional permission system, or requesting permission was quite notional. In other words, there’s an ideology of requesting permission, but it’s in practice not exercised, because invariably when one went to another country, one went and stayed with the hosts in any case and went hunting with them and didn’t have to ask permission. So I think it’s a matter of - there’s clearly a difference of the way I’m emphasising that aspect in my views. For the most of the remainder - could I just have another quick look at it.

Yes? --- I haven’t heard of anybody needing permission to cut branches for spear handles. They’re usually obtained from hibiscus tiliasis trees, but it - obviously he’s probably recorded some cases and it might be definitely where there’s not many of those trees growing in a particular estate.

Have you got anything to say about the sentence - this is the third sentence, I think:

“Although outsiders may hunt along the shores, they should seek permission to use the fishtraps.”

In other words, the position of outsiders? --- Well, it’s difficult to know who he means by outsiders there, but, as I’ve said before, when people are in countries there’s a generosity about certain abundant widespread resources such as individual fish, but he obviously moves his position when he talks about large fish, and similarly I’d argue that if it’s a school of fish the Dulmada would exercise more authority over access and hunting to those.

Is there anything further you wish to say about that paragraph? ---

“The senior Dulmada could always make an issue out of the matter.”

I think that’s a key part of it, that the senior Dulmada has the authority to challenge or to dispute somebody’s behaviour in their country, and certainly my experience in the 1970s is that people could read everyone’s footprints. Old men would return with me to where I was camping and say, oh, such and such has been in your camp, so that if people were travelling through countries, they purposely tried not to conceal their footprints because they knew that when owners returned they’d be able to see where they were walking. So I would support what he’s saying there. The aspect of punishing by physical means I’ve covered already in the process of square ups. The Dulmada has a capacity to organise and implement a square-up at one of the standard fighting places in Lardil country to resolve a dispute when somebody infringes or violates protocols in somebody’s country.

And the last two sentences? --- Well, I think once again I’d return to that model I gave before of type of a camping reserve, that when you’re in the camping reserve there are certain things that are freely accessible, such as water and small fish and so forth. You wouldn’t be allowed to go - to construct - to just simply walk into somebody else’s country and set up large dugong nets as a type of structure or to put a dam across a creek, which is something that I don’t think I’ve mentioned, the idea of building a dam across a creek which people used for catching fish and which was done through placing poisons in the water or stupefacients in the water. I describe that in my PhD. So that although one has access to certain facilities by agreement in one’s country, there are certain rules that one has to observe, and that includes permanent structures or permanent residence, and I would agree with those assertions. But, once again, I’d say that the right to hunt is a matter of implicit permission, a long-standing permission that’s been given between Lardil people. Somebody of the calibre I was describing before, such as a group of Groote Eylandt dancers, didn’t have a right to go hunting anywhere they liked in Lardil country, and nor did Yangkaal people.

Can I take you then to page 242, the epilogue, and the sentence, the third sentence on that page:

“Lardil rights in land, including the littoral regions, are strikingly equitable. In one sense, land belongs to everybody. People are by and large free to travel and hunt wherever they please. Within another dimension of social life, people who are Dulmada, who ideally are patrilineally related, have special rights in their country.”

“This is seen by the fact that outsiders must be adopted as Dulmada through semi-formal rights. An insider, a Dulmada puts his sweat on them. Long-term residents can also activate a claim to Dulmada membership. Additional dimensions of social differentiation are seen in the special rights of sister’s children having their mother’s country. These are similar though not co-equal to Dulmada rights. People are also accorded special rights in honour of their conception sign and birth.”

What do you say about that portion? --- In general?

Yes? --- Well, this idea that land belongs to everybody and that there are special rights the Dulmada has, in my view, he’s right and wrong there. There are - the way I presented it or the way I’ve understood it is, there are rights held by the collective of Lardil elders in the country which, at times, they demonstrate that they can call upon to make decisions and they, in turn, at times, bestow Dulmadaship rights on particular individuals who then hold those proprietal rights in the estate. He seems to be going for, although it’s not entirely clear, a situation where both exist simultaneously in time, whereas what I’m saying is that there’s a set of rights that are bestowed and then perhaps taken back through historical time by the elders.

I understand you say they are taken back when an estate group runs out of members? --- Or they might activate their rights, as I said, if there’s some matter that’s going to concern the whole group as a collective such as some ritual matter, for example, the singing of Kujika songs along through a particular geographic region. So it’s a matter of a subtle emphasis on when people assert their rights in the broader collective as opposed to when the local Dulmada exercises his rights exclusively. I agree with the part about putting smell on visitors or strangers although I’m not sure whether he’s talking about somebody visiting on a one-off occasion or whether he’s talking about adoption in the sense of adopting someone as part of a family on a permanent basis but I agree generally with what he says about the idea of putting sweat on being a mechanism to allow local supernatural entities to familiarise themself with the smell of the newcomer to reduce the danger that the newcomer has for being in a strange country. The sentence on rights in the mother’s country not co-equal but similar, once again if somebody takes over their mother’s country as Dulmada then they will have Dulmada rights, so there’s an exception to that situation. The last sentence:

“People are also accorded special rights in honour of their conception sign and birth.”

I’ve already mentioned that and it does seem that what he’s saying there is that there’s a process of social endorsement required for those rights to be implemented, that they’re actually accorded those rights and that there’s a recognition by the Dulmada that those people have those rights, which once again would call on the authority of the Dulmada to set up a co-operative relation for those people to assert those rights in practice.

And you agree with that? --- Yes, I agree with that.’

84 The same matters were raised in the evidence of Dr Trigger with respect to the evidence of some Gangalidda witnesses and the interlocking of rights to Country. He said:

‘Yes; there isn’t a separate rule among Ganggalida People that says, “If you want to go to somebody else’s estate, you’ve got to do anything other than notify the senior members of the country where you’re going of your intention to go there, and that you do that for any of these three reasons. One is out of respect for those people; secondly, to insure safety; and thirdly, to insure success.”? --- Well, I think that - where to start with this?

Among Ganggalida People themselves, then, as I’ve indicated, it’s going to be very unusual for somebody to have no basis at all for themselves being able to assert a right to go somewhere. There’s this interlocking, inter network of persons. But, having said that, I mean, people - if we’re talking about now, it’s acknowledged that some people have got particularly close connections to an estate. They may be living there. And I think when people ask them or notify them and wait for a response, which is much the same as sort of asking for them - asking them to go somewhere or to fish or whatever, they’re acknowledging the connection between the persons they may be notifying or asking and that area. I think this is quite complex. I mean, it depends on who is doing the asking, and what’s being asked for. It’s also the case that it’s different to ask somebody, “Can I go fishing in an area of water?” compared to “Can I go and build a house there and live there,” or “Can I take a leading role in making a decision about a development that might be going to occur there.” I mean, there’s not one set of ways in which asking permission - or to put it another way: it will be influenced by what’s being asked and who is doing the asking.

Right. Okay, so there’d be - - - ? --- And that - and that very much includes also the proposition that it might not be Ganggalida people who are doing the asking as well.

Yes. Yes? --- It might be members of other language groups or it might be non-Aboriginal people.

Okay. I suppose what’s got me a bit confused is the fact that you’ve listed 5 core rules and that seems to be the closest that any of them gets to what people have been referring to as permission? --- Well, these are rules for interaction with the - with the sea. To some extent, I think my description of those rules is consistent with my more general proposition that as I think one witness whose transcript I did read put it - I think it was Wadjurlarbinna - if somebody is going to tell her, no, she can’t go somewhere, they’d better have a very good reason.

Yes? --- And my general proposition is that there is an interlinked, interlocking network of rights across Ganggalida people such that whoever is doing the asking or seeking, especially if it’s seeking something which is not, “I want to go and live there and build a house there, or I want to go and build a jetty there,” but “I want to just go fishing there.” It’s a relatively modest proposition among Ganggalida people, then it’s going to be unusual for - they’re going to be kin. They’re going to be related, close kin, so the proposition that they’ll be told no is not likely.’

...

And so is that a sense in which you refer to this concept of ideally requiring permission, that is that it’s not a matter of people actually seeking permission but as put by Eva Gilbert, rather it’s what you refer to as implied permission? It wasn’t so much a matter of permission; it was a matter of letting you know that “I’m on your country and why I’m on your country”? --- See, my view is that when the Ganggalida people talk about the process by which permission is obtained, they will refer to the modes of indirectness and circumspection and etiquettes which are common in Aboriginal custom, and part of that, especially when you’re dealing with those who are closely related to you, and also for that reason you have an expectation that it’s unlikely you - unless there is some state of affairs where you’re in tension with those other people - then the etiquette - the method of seeking permission is as she’s described it there, “let you know”, is to assert to the persons whose - who you wish to consult with, “Well, I’m going into your country now. I’m going to such and such a place” and then wait to see if there’s any negative response. That’s what I mean by implied permission.

...

I see. The other distinction I’ve drawn your attention to is the change in the use of language from rule to etiquette? --- Well, in terms of section 3.2, I think the term “rules” is appropriate. People talk about those as rules. Etiquette?

Page 55, end of the second paragraph:

Accepted etiquette involving an implied permission.

Next paragraph, second line:

Correct etiquette.

Next paragraph, fifth line:

Ideally it required permission.

? --- Yes. Well, to try to I suppose phrase what I’ve said earlier, I think there is permission operating among different Ganggalida families, but because of the closeness of connections between them - the kind of comment from Eva Gilbert there is common enough where she tries to characterise - and she’s referring to the past there, too. She’s trying to characterise the way in which Ganggalida people among Ganggalida people are - she feel, you know - as the other witness Wadjularbinna put it, you know, people ordinarily would have to have a very good reason for being knocked back. They may be knocked back. That’s probably why I used the term “etiquette”. But the final passage in Eva Gilbert’s statement there:

Other tribes have to let them know they’re going in the sea.

It seems to me she’s wishing to state a stronger point there, and I think that that’s evident also from my broader notes on which that quotation - from which that quotation was drawn where I’ve got the full text of the conversation involving Eva Gilbert’s statement.’

85 Finally, the evidence of indigenous witnesses cannot be understood out of the context of their religious and spiritual beliefs. This point is made in the epilogue in Dr McKnight’s work upon which Dr Memmott was cross-examined. Dr McKnight, after the passage quoted in the cross-examination of Dr Memmott set out above, continued in his book to say:

‘The Rainbow Serpent myth is about land rights, incorporation, and the confrontation between insiders and outsiders. (In what follows, I am indebted to the work on mythology by David Turner (1978), Guy Lanoue (1990), Korovkin and Lanoue (1988), and, needless to say, Levi-Strauss.) As I have shown, people enjoy a kind of symbolic mystical safety within their own Country, but they are in mortal danger unless they are vouched for - that is, temporarily incorporated by insiders - when they visit other Countries. Even when people are not in their Country because they are hunting elsewhere, their Country and their rights to that Country are protected from trespassers by the Rainbow Serpent. In the Rainbow Serpent myth, there is an implicit question: What would happen if people kept their Country exclusively for themselves and denied access to outsiders? (This is similar to David Turner’s formulation (see Turner 1978)). The answer is that they and the outsiders would perish. (This appears to be what happened to many of the Kaiadilt in the late 1940s. Pertinent to this is the fact that the taboo of eating one’s own kill was discarded during the calamitous period. Kaiadilt people told me that they would have starved to death if they had faithfully observed this taboo.)

In the myth, Rainbow Serpent claims that he needs his space, his Country, all for himself. He is unwilling to give succor even to his own sister’s child, the closest non-dulmada of his Country (and someone who does not have her own Country), even when asked directly and repeatedly (which obviously drives the point home) by his sister. His refusal is utterly selfish, justified by bogus reasons; when his sister espies some unoccupied space, he immediately shifts and moves into it, claiming that he needs it for himself. Put another way, Rainbow Serpent acts the part of the insider who denies shelter and, eventually, the justness of the outsider’s claim to a share of his Country. (It may be significant that the child’s father does not appear in the myth. If Rainbow Serpent denies succor to his own sister’s child, then he is obviously more likely to deny the same to his sister’s husband. Although sister’s child and sister’s husband belong to the same Country (father and child), sister’s child is kin, and sister’s husband is an affine.) Rainbow Serpent is so selfish that he eats up rain and keeps it for himself. But his very selfishness is his undoing, because his sister, Bulthuku, is able to set fire to his shelter/Country. Thus Rainbow Serpent causes the death of his sister’s child and is killed for it; when Rainbow Serpent is forced outside his burning shelter/Country he perishes despite moving to another space - that is, attempting to take over someone else’s shelter/Country. Outside his shelter/Country he even becomes like his sister’s child, demonstrating that identity is fundamentally linked to Country regardless of shifts in residence. This is underlined by the fact that both protagonists perish from diametrically opposed elements - Rainbow Serpent by fire and sister’s child by water.

In dividing rights to land, it may at first appear to be an excellent idea that each group should have exclusive rights within their own Countries. There would be no disputes about ownership and the means of making a living. Such a system could work quite well when times are good, but it is dangerously inflexible when times are bad, when people are unable to survive in their own Countries (in the rainy season or when the rains fail). The other possibility is to have undivided rights to land so that people may hunt and gather wherever they please. The drawback to this arrangement is that it can result in uncontrolled competition for resources, as well as a lack of identity, because people who belong everywhere in effect belong nowhere. The Lardil have evidently developed a system in which they can have it both ways: on the one hand, each group or clan has its own Country in which they have some exclusive rights; on the other hand, they admit that land belongs to everybody and ipso facto they may hunt anywhere. They have evidently divided the contents of Country from land. They have understood the basic message of the Rainbow Serpent myth (or they attribute great importance to a formulation that sets up Countries and People): if they prohibit outsiders from obtaining succor in their Country, then not only will the outsiders (sister’s child) perish, but they themselves (Rainbow Serpent) will perish. Significantly, Rainbow Serpent’s own Country ceased to exist after his fit of selfishness: it was burnt and then flooded (symbolically annexed to sister’s child’s country), and to this day remains under water. This, too, is part of the message - that people will lose their Country and cease to exist unless they grant some access to outsiders, for sooner or later they themselves will be hard-pressed “outsiders” pressing a claim on some “insider’s” Country.’

86 The second respondent submitted that the Court should substantially discount the weight to be given to the evidence of indigenous witnesses because:

(a) the written statements were prepared by the solicitors for the applicants with the assistance of the anthropologists, or some of them, and that the language used was not that of the deponent;

(b) the statements were on occasions prepared in the presence of and with the ‘assistance’ of other members of the applicant groups;

(c) the statements contained bare assertions of ownership of the land and waters in issue which were inadmissible under the applicable rules of evidence; and

(d) the indigenous witnesses in large numbers were present in the Court during the hearing of evidence on Mornington Island and they heard the evidence of other members of their constituent groups.

87 It is correct that much of the language in the written statements, particularly of the older witnesses, is not their form of expression. It is clear that in interpreting traditional language or ‘Aboriginal English’ used by the indigenous witnesses, and attempting to state what was said in standard English, the subjective understanding of the person preparing the statements may have intruded. This was neither intentional nor intended to mislead the Court nor misstate or over emphasise aspects of the witnesses’ evidence, and I so find. However, it became obvious when the witnesses were further questioned in chief by Counsel for the applicants to further explain an assertion in the statement or the source or basis of a belief stated therein that the language in the statement was not that of the deponent. Because the witnesses were often further examined by the applicants’ Counsel on matters of importance in the statement, and were cross-examined on both the written statement and further oral explanation, a substantial body of oral evidence became available which overcame the objections to form and admissibility taken by some of the respondents at the commencement of the proceedings. In consequence, where matters in the written statements were challenged or were overtaken by oral evidence, I have relied upon the oral evidence as the primary source of evidence to which I have given the greatest weight.

88 I accept the evidence of the anthropologists, that culturally the occasions upon which the traditional laws and customs of each group are stated are public occasions and are to occur in the presence of others who can confirm or challenge the statement as a correct expression of the laws and customs. I reject any suggestion that the presence of witnesses in Court was for the purpose of fabricating a consistent story or to attempt to ensure that all witnesses gave a consistent story. In fact, they did not all give the exact same story and it was the inconsistencies which were relied upon by the respondents to contend that no system of controlling access to, or activities in the land and waters in the claim area by a ‘permission system’ existed. Having seen and heard the witnesses and seen those present in Court during the giving of such evidence, I am satisfied that all indigenous witnesses regarded the giving of evidence as a formal and important part of the presentation of their claim. The three examples given earlier in these reasons from the evidence of Roger Kelly, Nelson Gavenor and Reggie Robertson were typical of all the indigenous witnesses. I do not discount the indigenous evidence on this basis.

89 Finally, it was submitted that the Court should discount or reject the evidence of one or all of the anthropologists on the grounds that:

(a) it was not objective;

(b) it was inconsistent with their previous writing or the writings of other anthropologists which were tendered into evidence but not called to be questioned on their works; and

(c) it was concocted or over-emphasised in order to give the traditional laws and customs of the applicant group features or incidents with respect to the sea component of Country which in fact had never existed.

90 It would be naïve to suggest that the anthropologists who gave evidence are not sympathetic to the claims of the applicants; they have been working with these people for decades and they know the people personally and enjoy close social contact with them. The witnesses acknowledged that such was the case, it being an almost inevitable consequence of the methodology by which substantial field work is carried out over time with living communities to obtain base research data. Each of the assertions set out above as to why the evidence ought to be discounted was put to the witness and answered. Much of the work done by each of those anthropologists is derivative of earlier published work done with respect to these indigenous peoples. Much of the material in the reports is sourced in field books and notes made by the anthropologists which pre-date the High Court decision in Mabo v Queensland (No 2) in 1992 or the emergence of the land rights movement in a major way in the 1980s. The claim to the land and waters ‘as far as the eye can see’ is recorded in Dr McKnight’s book which is based on his work in the Wellesley Islands since the mid 1960s; it is not a recent invention of these anthropologists adopted as a convenient rubric for the purpose of the applicants’ claim.

91 Having heard the explanations of the anthropologists myself and being ever mindful of their close relationship with the applicants and the need for objectivity, I have, for the main part, accepted their evidence. Where I have not accepted their evidence, my rejection has been based on my own assessment of the body of evidence before the Court by both indigenous and non-indigenous witnesses.

the original lardil peoples

92 The applicants relied on the evidence of Dr Memmott in order to establish the extent of the claim area at sovereignty. In his report entitled ‘Report of the Lardil and Yangkaal People’ (Ex 193) Dr Memmott wrote:

‘The Lardil occupied a well-defined common territory, exploiting it for their economic needs. The physical nature of islands allows such a precise geographical-based unit to be defined. The Appel Channel forms the boundary between the Lardil territory and neighbouring tribal group, the Yangkaal. All of the Wellesley Islands to the north-east and east of this channel are claimed by the Lardil, including the Bountiful Isles.

...

The Lardil people define their territory as comprising the following islands and surrounding seas:-

Mornington Is Gunana

Sydney Is Langunganji

Wallaby Is Lingunganji

Rocky Is Kalamburriya

Manowar Is Delmerriya or Wudma (after local bird sp)

Moondalbee Is Mundalbi

Pisonia Is

(or Turtle Is) Meldan or Meldanga

Bountiful Island Kalngkawa (also given as Kangadaa)

Tulburrerr Is Bendaa

...

[T]he Yangkaal define their territory as comprising the following islands and their surrounding seas:-

Andrew Is Walbadiin (also known as Kuriyalkan)

Francis Is

(or Bayley Is) Jurrmanki

Forsyth Is Mayiyanba (or Mayenba)

Denham Is Bathungan

Robert Is

(or Pains Is) Marrangkarba

Allen Is Dijara (also includes the sandspit sometimes referred to as ‘Little Allen Island’).’

93 He gave further details. The particulars of the Lardil territory are:

(a) To the south, to the centre of the sea between Sydney Island and Bentinck Island;

(b) To the north, to and beyond Rocky Island, which is visible from the hill at Buruwa on Mornington Island, and Manowar Island;

(c) To the east, to and around Wallaby Island, where Lardil people resided, Pisonia Island and Bountiful Islands, where there are turtle traps believed to have been created by Maarnbil.

94 The particulars of the Yangkaal territory are described by Dr Memmott as ‘... the seas around Denham, Forsyth, Robert and Francis Island and ... the sea between Robert Is and the mainland coast as “shared” with the Ganggalida. They asserted rights in Allen Is and said it was Yangkaal country. However they also indicated that they shared Allen Is and the surrounding sea with Ganggalida and Kaiadilt.’

95 After giving an account of countries or estates and the associated descent groups or estate groups, Dr Memmott wrote:

‘Descent Group countries are separated by clear boundaries that run approximately at right angles to the coast and the coastal land systems. ... The boundary lines extend out into the sea for an indefinite distance as far as the eye can see and thus marine resources are also allocated to country owners or patriclan members.’

96 He explained the role of vision in the definition of Country in the following way:

‘If one is in a dinghy offshore from the Lardil or Yangkaal coastline and one asks who holds the authority for the local area of sea (or who talks for, or who is boss for this area), the most consistent reply is a reference to the local Dulmada and his or her Descent Group. ... all seas within visual range of the shore are most certainly part of the indigenous estate ... Surveillance of the sea from the land is a constant preoccupation for those with a marine economy and cosmology. Likewise, the visibility of the land from the sea was extremely important for marine navigation. Men on watercraft, irrespective of what type, make continual checks on their location and movements by identifying coastal landmarks. Whilst the land was visible, they were in their tribal country or territory.’

97 In his report, Dr Memmott discussed the spiritual connection of the Lardil and Yangkaal people to the claim area. He explained the Lardil and Yangkaal peoples’ Dreaming in the following way:

‘The Lardil and Yangkaal Laws and customs can, by and large, be shown to be embedded in and derived from a system of indigenous religious belief.

...

... what is or what was the Dreamtime or Dreaming? One semantic aspect of this term is that it refers to the ancient past, many millenia ago, during which Aboriginal people and other fauna and flora were adapting and evolving in a continent of changing environmental conditions. Aboriginal sacred history is concerned with this time and contains accounts of the doings of ancestral beings, some of whom seem to have been animal, some human, but in most cases a combination of both (Elkin 1969:86, Munn 1970:143). According to Lardil history, all the animals had human qualities at that time (Roughsey, D. 1971C:57). Individuals were a synthesis of a human and an animal or plant species, or some other natural phenomenon, e.g. dog man, barracuda man, yam woman, tree man, moon man, etc. These ancestral beings travelled about the country and through the sea, interacting with each other and with the environment, experiencing adventures, making places, leaving signs of their presence, even parts of their bodies, and eventually dying and/or going into the ground, the sea or sky. These activities of the ancestors are said to have left traces of their energies in the environment. That is to say the ancestors seemed to have unlimited sources of energies which were reproduced and deposited at places they made, even touched. Energies were also left in the environment in parts of themselves, such as faeces, sperm, broken bones or limbs, etc.

This introduces a more complex definition of the “Dreamtime”. Certain properties of energy from a distant historical time are believed to continue to exist into the present at these sacred sites. Such energies may be transmitted to contemporary humans through their associations with such sites, either through birth or through ceremony and ritual at them. Many Aboriginal groups including the current claimants, believe that the energies for human reproduction were derived from special sites in the landscape and remain in the conceived individual forming a permanent link with that particular site as well as with their ancestral origin.

…

(iii) The coast and sea are overlaid with religious and geographic properties by the activities and travels of the Ancestral Beings, who left behind the customary Law. Sea Rights are asserted in the areas in which the indigenous ‘Sea Law’ of the claimants is believed to be active and potent, including the littoral estuaries, creeks, mangroves and tidal flats which may extend for some kilometres inland. This includes but is not limited to Story Places. It also includes areas of seabed that were once land, but were submerged in the Dreamtime according to Lardil and Yangkaal religious beliefs. It includes all of seas that form the Lardil and Yangkaal areas of the Native Title claim.’

98 Dr Memmott also discussed the Lardil and Yangkaal peoples’ concept of ‘the Law’ in his written evidence:

‘ ... “The Law” is commonly referred to in the context of debate amongst Lardil and Yangkaal Elders on religious matters including about (and during) associated ceremonial and ritual contexts. In its broadest sense, “the Law” is the body of sacred knowledge of the Lardil and Yangkaal. This term also refers to a set of rules and edicts set down in the Dreaming for humans to follow. Such rules and edicts are usually embedded in the “sacred histories” otherwise referred to in popular and anthropological literature as “legends” or “myths”. Whatever one calls them, these also contain the charter by which Elders take action in the name of “the Law”. Hence people say they “follow the Law”, or one cannot make a mistake “in the Law”, or that one must “keep the Law straight”. These statements imply that “the Law” comprises a collective body of religious precepts whose authority is unchallengable, being derived from the Dreamtime and should be respected and adhered to as such. Attached to the “Law” are the many customary behaviours that are observed in accordance with the individual rules or edicts, whether they be as simple as pointing or whistling, or more complex rule systems based on an understanding of Thuwathu or Kujika histories (ie. initiate’s knowledge.)

...

... [T]he Laws of the sea are elementary to young Lardil and Yangkaal people.

The Lardil and Yangkaal laws (rules and edicts) have been shown to be part of a system of “Law” or sacred belief system. Within this cosmological or religious belief system known as “The Law”, the Lardil and Yangkaal believe that their country (including seas) can be a benefactor for them as well as punish them.

...

The various Laws (rules and edicts) and customs can be regarded (in an anthropological sense) as forms of adaptive behaviour that complement the socioeconomic importance of the sea and the coastal land systems. However claimants believe their ‘Law’ (sacred knowledge) comes from “the Dreaming” (KJ 28/9/98). The collective system of religious beliefs and practices in the seas can be referred to as “Sea Law” or “Saltwater Law”. The claimants assert Rights in all areas where their Sea Law is believed to be active and potent. This applies to all of the Lardil and Yangkaal seas included in this claim.’

99 As to the physical connection between the peoples and the sea, Dr Memmott stated:

‘The Lardil and Yangkaal customarily obtained (and continue to obtain) food and raw materials from each of the land and marine systems in their country. The majority of the customary food resources are to [sic] found in the coastal land and marine systems. As stated previously this is a reason why most traditional campsites are located on the coast.’

Dr Memmott continued on in his report to detail the methods of hunting at sea:

‘... Water travel, where crossings were not available, or for the purposes of trade of [sic] hunting, was accomplished by using rafts (walba) and paddles (bilir). These were used throughout all of the Wellesley Islands and were constructed of white mangrove or lightweight driftwood members, lashed together with Hibiscus rope. The paddle was made from the stem and buttress root of a certain mangrove tree ...

The North Wellesley rafts were identical to those used in the South Wellesleys by the Kaiadilt.

...

The walba was not normally used by the Lardil or Yangkaal as a platform from which to spear or harpoon dugongs. The customary method to catch dugong and turtle was with large nets (barkuwen) manufactured from hibiscus ropes. The walba was used for chasing dugong or turtle towards the nets. There was thus not the need for fast acceleration and mobility that is required if one is using the seacraft for actually hunting a dugong. There are some reports of spearing turtle on reefs from rafts but this is relatively easy when the animals are stationary.

The disadvantage of the walba from which to spear dugongs was probably partly because of the slow and clumsy movement of the raft in the water which would be detected by the acute hearing of dugongs. Turtle were easier to spear off a raft and there are reports of catching turtles in this way.’

100 The applicants drew on the evidence of Dr Memmott and Dr McKnight to make the following submissions as to the nature and extent of native title asserted in respect of the Lardil and Yangkaal traditional territories:

‘17.38 Dr Memmott has been able to map, in a number of cases only approximately, a reconstruction of the location of 29 patriclan countries on Mornington Island, Wallaby Island and Sydney Island, in c1914, that is, prior to the coming of the missionaries (see Figure 3 in Ex 193). He has also been able to map on Mornington Island, Wallaby Island and Sydney Island, the 29 patriclan countries in 1975, and list in respect of those countries the associated dulmada or an indication that the patriline was without member (see Figure 4). He explains that as a consequence of “processes of demographic change and resultant political processes” the number of Lardil estates at the time of writing his report was 21 (pp 10 - 11). He lists the descent groups in his report (pp 12 13), and provides full particulars of them in the genealogies (Ex 23).

17.39 Dr Memmott’s analysis receives substantial support from the research and writings of Dr McKnight. In his book People, Countries and the Rainbow Serpent published in 1999 he states that in 1966 he mapped the countries of Mornington Island recording boundaries, story places, areas identified with markirii beings, camping sites, and other matters of interest (Ex 207 p 79). In Fig 5-2 (p 83) he shows 27 Lardil and Yangkaal countries 1966 - 1996, and provides details in respect of each country and associated group (pp 87 - 107). While Fig 512 shows 27 countries, the discussion encompasses 31 countries. Differences between Dr McKnight and Dr Memmott concerning some boundaries and dulmada (see Ex 207 p 251 footnote 5, and Dr Memmot’s [sic] Comments on Footnote 5, also part of Ex 207), are of a relatively minor kind, and do not detract from the force of their combined research which demonstrates the continued acknowledgement and observance by Lardil people of their traditional identification with the land and sea of particular countries. Dr McKnight also maps Lardil and Yangkaal countries circa 1914 (Figure 5-1, p84) showing 31 countries.

17.40 Both Dr McKnight and Dr Memmott make clear that the rights of Lardil people are not confined to the particular countries of their patriclan. Dr Memmott writes: “[D]espite the strong patrilineal ideology concerning country inheritance” Lardil people “have rights in their mother’s (or MF and MB’s) country which is often referred to as ‘milk country’ in Aboriginal English. ... [T]hese rights may convert into full rights and indeed Dulmada-ship if all the patrilineal descendants of one’s MF are deceased” (Ex 193 p14). Rights also exist in the place of conception, where a totemic being may give a “sign” to the parent, in some cases in the place of birth, and in grandparents country (pp 15 - 18). Furthermore, it is “a recognized and acceptable land tenure acquisition process for the Lardil (and Yangkaal) whereby a Dulmada may pass his country on to a person who is not a member of his patriclan or Descent Group, due to the absence of any patrifilial heirs (neither sons nor daughters)” (pp 16 - 17). Dr McKnight writes of the rights a Lardil person has in the countries of his or her matrikin (MF), and that of mother’s mother and father’s mother (Ex207 pp 84-85).

17.41 The demonstrated existence by both Dr Memmott and Dr McKnight of a system of countries or estates in Lardil territory in 1914 is compelling evidence that, prior to European contact, the presence of Lardil people on Mornington Island and nearby islands was, to adopt the words of Toohey J (in Mabo No 2 at 187) “part of a functioning system” by which land [and sea] was utilized in a way determined by that society.”[sic] It necessitates a finding that the Lardil people possessed a “traditional proprietary communal title” at the time of sovereignty.’

101 The anthropological evidence of Dr Memmott and the writings of Dr McKnight satisfy me that in about 1914, when the mission was established on Mornington Island, the territory of the Lardil peoples included Mornington Island, Wallaby Island, Sydney Island, Turtle Island, Turrermurrer Island and the Bountiful Islands, and included claims to Rocky Island, Manowar Island and Moondalbee Island.

102 Some of the older witnesses had had contact on Mornington Island with Lardil peoples who had lived the traditional life according to traditional Lardil laws and customs prior to 1914. Those persons, on the evidence of the witnesses, were the source of the stories of the Dreaming, the traditional laws and customs and the identification of Countries within traditional Lardil territory. Their evidence, along with the evidence of Dr Memmott and the published research of Dr McKnight and the other anthropologists, satisfies me that I might properly infer that the arrangements which I find existed as to the occupation and use of the land and adjacent waters in 1914 were the same, or derivative from, those arrangements under traditional laws acknowledged or traditional customs observed by the original Lardil peoples at the time of sovereignty.

103 The likelihood is that the precise location of side boundaries of the Countries, or indeed the number of them, may have altered from time to time to reflect changes within the groups which had a relationship to a particular Country. However, I am satisfied that the changes were not happenchance, but were brought about by the operation of rules and customs which were traditional laws or traditional customs of the original Lardil peoples to deal with such changes.

104 The Lardil peoples inhabited Mornington Island, which was divided into approximately 31 Countries. Each of these Countries had identifiable features, being physical side boundaries, a back Country with ill-defined rear landward boundaries and a foreshore and seaward area which formed the sea Country component of the Country. It was the natural resources which the peoples harvested and hunted from both the land and water portions of the Country which sustained their needs.

105 Each of the original Lardil people had a Country, which the indigenous witnesses described as ‘belonging to’. That is, each witness belonged to his or her Country. It was a characteristic described in the oral evidence and the expert material with respect to all the traditional territories. It was a relationship of self to a particularly defined geographical area. Although the rules by which persons became related to particular Country varied slightly between the different constituent groups in content and varied in the complexity of the discriminating criteria, each body of rules represented a normative system by which the allocation of persons to places occurred. Once allocated, the relationships between persons within the community as a whole, and within the community of a particular Country, were determined upon the basis of the rights which a person held in respect of a Country. Rights were not equally distributed within the inhabitants of a particular Country, but were distributed in a way determined by a normative set of rules and customs which were operative in each Country, and recognised and given effect to by the original Lardil people as a whole. Absent a person holding a right to be in a particular Country or to engage in a particular activity in that Country, the normative system of rules or customs prohibited the presence of that person in the Country and forbad the person from engaging in that activity.

106 Because the original Lardil people operated as an homogenous people with a common language, common religious beliefs, a Dreaming which touched all of the Countries, and with the need to come together for community rituals and occasions, there existed traditional rules and customs by which persons who did not belong to a particular Country could acquire differing rights in terms of content, entitlement and duration which enabled non-Country persons to be on, or to engage in activity on, a particular Country. Thus a person may be entitled to visit his or her birth or conception place in Country which is not his or her Country, may inherit hunting rights through a mother in respect of her Country (which rights survive only for the life of the successor to the mother), may receive Country by it being willed to him or her, may be entitled to live in the Country of a wife after marriage and whilst living with her parents, or, may be entitled to enter Country to participate in an initiation or other ritual ceremony. In any particular case it was a question of identifying why a person was in a particular Country, what that person was doing, and the source and nature of the right which permitted the person to be there and engage in the activity.

107 Within each Country there existed a system of Dulmadaship, whereby one or more persons had, or acquired under the traditional laws and customs of the people, the right to control access to the Country and the activity of the persons within the Country, which involved the right to say when native foods were to be harvested, how much fish or game was hunted and the like. With these rights came the obligations to protect the Country and its resources, to protect its peoples, to protect sacred places and to warn persons where not to go within the Country. I am satisfied that the Dulmada had the right to allow a person, who was not otherwise entitled to be in a Country, to have access to it and to there engage in an activity which the person did not otherwise have the right to engage in. The favourable exercise of the right to grant approval was ordinarily required because of the obligation to share and provide succour to strangers to Country as taught by the Dreaming story of Thuwathu, the Rainbow Serpent.

108 I am also satisfied that members of the original Yangkaal peoples, the original Kaiadilt peoplesand the original Gangalidda peoples did not have any right of access to the traditional territory of the Lardil peoples, or to engage in any activity within that territory, without having acquired a right to do so recognised by the traditional laws and customs of the Lardil peoples.

109 I am satisfied that the sea Country of each Country was but an extension of that land Country across the inter-tidal zone and out into the adjacent waters. The side boundaries of the sea Country being the seaward extension of the land boundaries. The sea Country included the inter-tidal zones, the reefs and sandbars (which were accessible on foot at low tide or by raft when sea conditions permitted) and the adjacent waters.

110 The contentious issue is whether or not sea Country extended beyond the inter-tidal zone and adjacent waters, including the accessible reefs and sandbars. The Lardil witnesses, as did the witnesses from the other constituent groups, claimed that their sea Country extended ‘as far as the eye can see’. That is, it extended to the horizon and included the observable deep waters and any island or reef which could be seen between the land and the horizon. There was no agreement between the witnesses as to what rights were held by a Dulmada in respect of the deep waters beyond those areas habitually used for hunting and fishing or accessed for religious or spiritual ritual.

111 Some witnesses gave evidence that no permission was needed to access or transit the deep waters. Others expressed the contrary view. This was in marked contrast to the evidence with respect to the rights and obligations which existed under traditional laws and customs to access sea Country adjacent to the inter-tidal zone and to hunt and fish in those areas.

112 Some of the respondent parties submitted that the claim to Country ‘as far as the eye can see’ was a claim of recent origin or invention. It was suggested that the phrase ‘as far as the eye can see’ was something acquired by reference to the mission teaching of the extent of Christian creation. If not, it was put that it was a phrase of recent origin, coined by one or more of the anthropologists in connection with the preparation of the sea claim. I reject the submission and the suggestions. The indigenous witnesses, when asked from whom they heard the phrase, more often than not identified their father or uncle as the source. I do not accept that they fabricated their evidence in this respect. Further, the phrase is recorded in the field notes of some of the anthropologists, which notes go back to the 1970s and 1980s. It is also a phrase used by Dr McKnight in his book, where he said (at p 86):

‘... A Country did not end at the shoreline but included reefs (which were usually named), sandbars, and the sea directly in front. Offshore rights extended “as far as the eye can see”.’

As Dr McKnight records (at p 76), he worked with the Lardil and other indigenous peoples on Mornington Island from 1966 to 1996 obtaining much of his data in 1966 - 1968, 1970 and 1972, before land rights became a major political issue.

113 I accept that each of the constituent groups claimed all that was within their view to the horizon as coming within the geographical boundaries of their Country. However, the claim did not translate into identifiable rights and interests in relation to the area beyond that within which they habitually hunted, fished and foraged. Specifically, it does not translate into a right to control access to the outer areas. This is not unexpected as rights in respect of the outer margins of Country were not matters of pressing concern at the time of sovereignty. The original Lardil peoples camped near the beach; the coastal strip and immediately adjacent waters were the primary sources of the food which sustained the inhabitants of the Country. The boundaries of Country marking out the places where the inhabitants of each Country were physically present and exercising their exclusive rights were clearest along the coastline and immediately adjacent waters. The boundaries within sea Country were fixed by extending the notional boundaries seawards. More importantly, identifying the features and resources within the adjacent waters (for example reefs and sandbars, fishtraps and the like) which fell within the sea Country acted as markers by which the boundaries of sea Country could be fixed. To know with a degree of certainty where the boundaries of sea Country extended to, was important because the taking of turtle and dugong within a Country gave entitlements to the Dulmada of that Country to share in the catch. However, dugong and turtle would not ordinarily be found or hunted in the deep waters. Nor, on the evidence, did the deep waters involve any activity which would produce a consumable resource which could be shared among the peoples.

114 The boundaries of Country lose all definition and precise location as they extend out to the horizon where there was no pressing necessity to have a defined boundary. However, where the outer limits of sea Country meet up so as to have some practical consequence to the exercise of rights, there is and was a need for precision to delineate boundaries. This, I find, is what occurred between the original Lardil peoples and the original Yangkaal peoples in fixing upon the Appel Channel as the boundary between their respective territories, with both accessing the resources from either side of the channel, including the deep waters to the extent that they were able to do so from the adjacent shallows.

115 In finding that there was no right to control access to the distant waters, I accept nevertheless that the waters beyond the inter-tidal zone and adjacent waters, including the accessible reefs and sandbars, was important to the original Lardil peoples because it formed part of their physical world, was part of their creation stories and, in places, involved the Dreaming paths and other places of their spirituality. However, it was the accessible and ultimately known story places, the sacred sites and the Dreaming paths located in Country which gave rise to Dulmada obligations. The story places or sacred sites which were inaccessible, or in an inaccessible non-specific location at sea, were not places to which the control of access ran. That said, the deep waters were part of the traditional territory of the original Lardil peoples and their connection with it was spiritual or religious.

the original yangkaal peoples

116 I am satisfied from the evidence of the Yangkaal witnesses, the evidence of Dr Memmott and the excerpts from Dr McKnight’s book tendered into evidence, that in 1914 Yangkaal peoples inhabited Denham Island and Forsyth Island and further that Andrew Island was part of the traditional territory of the Yangkaal peoples. I am satisfied that there were approximately six Countries or estates which were set up along the same lines as Countries in the Lardil territory described above. Each of the Countries had a land and water component and Andrew Island was included in Country comprising the southern end of Denham Island. The Yangkaal peoples belonged to Country by reason of complex normative traditional laws of the type described by Nelson Gavenor in the extract cited earlier in these reasons. Belonging to Country involved rights to reside in Country and to fish, hunt and forage in that Country in accordance with the traditional Yangkaal laws and customs applicable to that Country. As with Lardil Countries, a system of Dulmadaship existed and the Dulmada controlled access to Country and activity within it. Absent a right to be in the Country and to engage in an activity there, permission to do so was required of the Dulmada. Ordinarily, permission would not be refused because of the existence of underlying obligations based in spiritual belief to share the resources of Country with persons who are out of their own Country. Yangkaal Countries included land and water components with identifiable side boundaries and imprecise rear and seaward boundaries.

117 The evidence of the Yangkaal witnesses, Dr Memmott and Dr McKnight, satisfies me that in 1914 certain islands, reefs and sea areas were shared by the Yangkaal peoples with other indigenous peoples for the purposes of fishing, hunting and foraging. The waters, surrounding reefs and sandbars in the waters adjacent to Robert (or Pains) Island and Francis (or Bayley) Island were shared with the Gangalidda peoples from the mainland; Allen Island, Little Allen Island and Horseshoe Island and the surrounding reefs, sandbars and adjacent waters were shared with the Gangalidda and the Kaiadilt peoples.

118 I am satisfied on the materials, that I may properly infer that the arrangements relating to the land and waters of the claim area under Yangkaal laws and customs which I find existed in 1914, were the same as, or a derivative from the arrangement under traditional laws and customs observed by the original Yangkaal peoples at sovereignty.

119 I accept that the original Yangkaal peoples claimed that their sea Country extended ‘as far as the eye can see’, subject to the accommodations which had to be made for the boundary at the Appel Channel and the shared interests in and around the islands specified in par117 above. However, for the same reasons which persuaded me to hold that the claim did not translate into rights or interests in the waters beyond the inter-tidal zone and the adjacent waters, including the accessible reefs and sandbars for the original Lardil peoples, and in particular, to hold the claim to such areas did not involve a right to control access to them, I find that the original Yangkaal peoples had no such rights in the outer areas. Within the inter-tidal zone, and the adjacent waters including the reefs and sandbars, the Dulmada had the right to control access to the area by limiting it to persons who had a right of access. Otherwise the permission of the Dulmada was required.

the original kaiadilt peoples

120 Dr Evans, in his report, gave the following evidence as to the extent of the Kaiadilt peoples Country at the time of sovereignty:

‘All Kaiadilt people I have ever discussed the matter with agree on the extent of Kaiadilt country, which is: all of the South Wellesley Islands, centred on Bentinck Island, but also taking in:

· the adjoining islands with dependable water sources: Ringurrng or Sweers Island, Bnarthayi or Fowler Island and Dalwayi or Albinia Island

· the outlying islands that were typically visited for shorter periods owing to the lack of dependable water: to the north west Nathayiwinda or “Douglas Island”; significantly the name means “place where on sleeps the night”), [sic] Karndingarrbayi and Duurathi; to the north Jawari and Dararrbayi. These are regarded as part of the nearest estates on Bentinck or its near islands: Karndingarrbayi, for instance, belongs with Minakuri (PG June 98), while Jawari and Thararrbayi belong with the country on the north side of Bentinck, i.e. with Rukuthi, Makarrki, Wurdu and Kungarr (NL June 98).

· Allen Island (Ngaarrkinab or Thaliwirndiwuru) and Horseshoe Island (Dijirr), though these had a special status as shared country with Gangalidda and Yangkaal - see 4.3.2.

· all the littoral surrounding these areas, taking in the fishtraps, reefs, shoals, sandbanks and sea, out as far as the eye could see. This question of the seaward extent of territories will be discussed in 4.3.3.

…

Allen and Horseshoe Islands, lying between the mainland the rest of the South Wellesleys, appear to have been a shared area, jointly used by three tribal groups (Ganggalida, Kaiadilt and Yangkaal) for episodic visits of various kinds: as a refuge area during times of conflict, as transit points for travel between the mainland and the South Wellesleys proper, for inter-tribal meetings, and for romantic liaisons. (Ganggalida man Michael Booth told me, in June 1998, that his mother told him people used to go across to Allen Island for romance).

…

Unlike the rest of the South Wellesleys, then, Allen Island and Horseshoe Islands did not see continuous and uniquely Kaiadilt occupation in the pre-mission period, although occupation by one or another group must have been common enough that the random temporal sampling events represented by Flinders’ and Stokes’ visits both noted Aboriginal inhabitants there.

…

To summarize this section, the general picture is that Allen Island was a “company” area, not exclusively occupied by either group, but used frequently by both Kaiadilt and mainlanders for purposes of hunting and periodically for refuge in times of feuding in their core territories. Two public meetings between representatives of all tribal groups concerned - one held in January 1992, and one in June 1998, both on Mornington Island - have reiterated the wish to treat Allen and Horseshoe Islands, and the adjoining seas, as belonging jointly to the Kaiadilt, Ganggalida and Yangkaal tribes.

…

In discussing country, Kaiadilt people do not distinguish principles governing the use of land and sea, or halt the process of territorial definition at the water’s edge. They have always found their livelihood in the areas out from the beach - in the fishtraps (ngurruwarr), shoals (kunthurld), sandbanks (ngakand), reefs (kamarr), kurrngu (the areas of seagrass forming dugong feeding grounds), as well as the outer islands visited more rarely for turtle and their eggs.

…

In addition to being the focus of economic activity, the sea is a major part of the socially defined territory…

Many of the sea sites have dangerous properties…Access to such sites is regulated or forbidden, and permission needs to be asked before visiting them, …

Levels of precision are most precise along beaches, with the transitions defined at creeks, as well as at fish-traps (ngurruwarr / dardangind), at good fishing spots (barjaj), and at sandbanks used for spearing fish; given sandbanks have their own ngakankuru dangkaa or “sandbank-owing person”. These areas of precise social definition grade into territory that is common (i.e. belonging to all Kaiadilt) rather than being associated with a particular estate group; they also become fuzzier as they are projected back inland. But the locations of particularly important spots, such as the dangerous inland site Wamakurld, or the reef wind-magic site Riithaldijarrb, will be given in detail, and explicitly included as lying in the territory of certain estate groups.

Kaiadilt people regard their territory as going out to sea as far as the eye can see.’

121 During examination in chief, Dr Evans gave the following evidence in respect of the phrase ‘as far as the eye can see’:

‘The expression that we’ve heard many times, “as far as the eye can see” is one that was used by people happier speaking English. People speaking Kaiadilt would use a range of other ways of expressing it, including the one that I just mentioned.

Just remind me what that was again? --- This was the warraa dulk. Our pointing out and saying warraa mala. Or other expressions - - -

Just go back to that expression, warraa dulk. What does that mean? --- Warraa means “far” or “distant” and dulk means “country” or “place.”

All right? --- It can also mean land, but it can also mean country without regard to whether it is on land or sea. People would also have often - have also often sung songs whose content would be explained. These are always little pieces of musical oral history, if you like, and they might say something like, “Oh, that’s so and so song, my old uncle who is now passed away, and he made that song up when he was out on his raft hunting turtle let us say at Mururrinji, for example, and he sung that song when he was out on the reef, and then they would say, “Well, he sung it because he was worried about his wife on shore. He couldn’t see her. He wasn’t sure if she could see him and know if he was all right.” This sort of thing. So again, that is - or this other expression I mentioned this morning, this series of phrases based on compass directions, north, south, east and west, to which one adds the suffix mirda mird, and those translate basically as sea country to the north, or sea country to the south, or probably more precisely, dugong hunting grounds to the north, dugong hunting grounds to the south, and so on. So these terms would come up as part of my dictionary work, or as part of translating songs, and people would explain what they would mean. Gradually over time, I would figure out - as I said this morning, the first time I heard that expression, I was just told muddy water, which wasn’t particularly helpful, but gradually over time, you would realise - maybe you would go out in a boat with someone hunting dugong, and they would say, well, that’s here now, but we call that jirrkuru mirdamirda. So it is a matter of putting together clues over a period, and then most recently getting people to articulate these in a more formal way.

When people have spoken of warraa dulk, which I understand to be way out or far out country, have you been able to obtain any more precise definition of what that has meant? --- It is a difficult thing. Again, it is a matter of assembling different clues on different occasions as to where it is meant. You might need to come back and ask someone a question. Like, do you mean right out there on the horizon there, or you might be in a particular location, say looking out to a reef or an island, and they’ll say, yes, that place there, that kurnthurlda, that reef, or that murndamurra, that island, and you would make some guess, either on the spot or subsequently with the aid of a map about how far that is, and you gradually put that together, but I think saying it is about as if someone were to say in English, “Way out there,” or something like that. It is a matter of how precise can you be over that particular formulation. I'm saying that is only one of several.

Are there other formulations of a similar kind to the one that you’ve just given? --- There are formulations concerned with the tides and tidal currents, so that two relevant Kaiadilt words are wayikiki, and yulu, and people refer to those using the possessive pronoun on occasion. They might say mirjinda wayikiki, my current, my tidal current out there, and point out and again, it is a matter of following someone’s pointing trying to work out how far they’re pointing to on the spot. Sometimes, you know, I’ve had the opportunity of being in a boat with people going out there and saying, well, is it still here? Is it still here? I’ve done that in some locations, but not every possible location from the island. It is a matter of proceeding by induction from that, in that case.

What level of satisfaction do you then have as a researcher on the basis of the research that you’ve carried out over that period of time, that the formulation of sea within visual range - and often expressed as we’ve heard, “as far as the eye can see” with all the qualifications that that may have of imprecision, is an appropriate expression, or an accurate expression of the extent of Kaiadilt country into the sea? --- I think that represents the best sort of answer we’re going to get in terms of achievable precision. It obviously is imprecise, but I think it is an inherently somewhat imprecise concept, and I think that represents it at the right level.

And is part of the imprecision involved with them converting that oral description, if you like, into a written form onto a map? --- Well, a map makes greater claims as to precision than a statement of the sort we’ve just heard, because whose eye is it? I certainly think that people would get a better deal if they based it on what they could see than on what I could see, and there are differences from person to person. You know, we can calculate these on the basis of all sorts of parameters we would establish, and come up with a line on a map. Its inherently a slightly arbitrary decision, but at a level of magnitude that I’m satisfied with.’

122 In respect of the observance of traditional laws acknowledged and traditional customs observed by both the original Kaiadilt peoples and the applicant Kaiadilt peoples, Dr Evans said in his report:

‘A full ethnographic description of traditional Kaiadilt laws and customs is beyond the scope of the present report; it would range across such diverse topics as childrearing, hunting method, the manufacture of artefacts, resolution of disputes, navigation techniques and knowledge of the stars, to mention just a few. In this chapter I focus on three aspects of traditional laws and customs which are relevant to understanding Kaiadilt relationships to each other, to the land and sea, and to the beings to be found there, namely:

(a) kinship, which is the basis on which all interpersonal relationships are organized

(b) naming, which is normally the most salient index of people’s personal ties to land

(c) laws and customs relating to diet and health, which revolve around appropriate behaviour with respect to the sea, the land and their denizens.

…

The Kaiadilt, like the Lardil, Ganggalida and Yanggaal, and in fact like all Australian Aboriginal societies, have a classificatory system of kinship, which means that (a) everyone in the familiar social universe is treated as kin (b) extension of kin terms is achieved by “classifying” certain individuals as equivalent to others – e.g. my “father’s brother” is classified as equivalent to my “father”, his children (who would be called “cousins” in English) are now equivalent to my father’s children, i.e. they are my brothers and sisters, and so forth.

…

In the contemporary situation, the majority of Kaiadilt under 50 are married to non-Kaiadilt, and most relationships are contracted by love rather than betrothal. Because the kinship relationships between Kaiadilt and neighbouring Aboriginal groups are still being negotiated, this gives younger people a certain latitude in justifying their marriage with respect to kinship categories. Alternatively, a partner from “outside” (Ie from an area far enough removed e.g. Cherbourg or Mt Isa, that no existing kinship relationships between Kaiadilt people and the partner’s family are established) can be first fitted into the kinship system as a banji (potential spouse). From this his or her relationships to older Kaiadilt can be calculated, and the relationships of the offspring to other Kaiadilt (particularly the grandparent relationships) can be worked out through the Kaiadilt parent.

…

In the Wellesley region, names are one of the most important clues to group and family membership, and to relations to particular places, and the giving of names is a powerful means of establishing and maintaining relations between older and younger people, as well as an effective mnemonic for encoding social and territorial relationships. Needless to say, an understanding of naming is also crucial to the compiling and interpretation of genealogical information. Although some modifications to the traditional naming system have been made in the modern situation, there is clear continuity in the system of naming practice.

…

The pre-contact system of naming is basically continued today, but with five important modifications: the introduction of European names, the growth of a system of nick-names, the introduction of a new practice of naming people directly after bestowed countries, the modification of the – ngathi system to reflect spiritual conception instead of birth, and the introduction of naming traditions from other marriage partners coming from other Aboriginal groups.

…

There is a complex body of traditional law, still essentially adhered to today, governing diet and health. These lases can be broken down into (a) general laws, that must be observed by everyone, (b) laws relating to totems, that impose dietary restrictions on given individuals on the basis of their totemic affiliations, and (c) laws sanctioning or restricting the availability of sea foods to particular age or ritual-status categories (d) laws regarding the use of fish and animal products for the treatment of ill-health and the dangers associated with birth and initiation.’

123 Dr Evans gave an overview of his written evidence in relation to the applicants’ connections with the claim area under the rubrics religious and spiritual, economic, linguistic, historical, and cultural identity.

‘1.3.1 Religious and spiritual connections

There are four dimensions to Kaiadilt religious and spiritual life, all connected closely to their waters and lands.

Firstly there is the cosmological dimension, in which the physical and social worlds are created by founding ancestral beings, who travelled across the landscape, fashioning the seas and islands (especially dibirdibi the rock cod), becoming transmuted into features of the landscape, and introducing key technologies that will guide human behaviour thereafter, such as the building of fish traps (by bujuku the black crane) and the rolling of string (by kaarrku the seagull). The land- and sea-scape is studded with dozens of “story places” which embody these founding events, such as the perpetual spring at Bardathurr said to be formed from Rock Cod’s liver when he was speared and cut up. These story places function as natural religious monuments, as it were, around which these founding stories can be recounted. The places must also be protected because of the dangers that can arise (e.g. floods or cyclone) should they be damaged. Since the founding events are of importance to all Kaiadilt people, responsibility for protecting these places, and passing on knowledge pertaining to them, resides with all senior Kaiadilt.

Secondly, there are powerful beings – preeminently Thuwathu, the rainbow serpent, who dwells in the sea, but there are a host of other smaller beings, such as the damurra dangkaa or ‘short people’ at Wamakurld (see §4.5) – whose wrath must not be provoked through inappropriate behaviour. A complex network of rules (cf §2.3) regarding diet, as well as behaviour on the sea (Thuwathu) or particular areas of land (damurra dangkaa), is motivated by the need to avoid the dire consequences of provoking these beings, such as severe digestive disorders (mulgri), or drowning on the seas, both attributable to provoking Thuwathu through wrong observance, and cancer-like ailments that can arise from failure to avoid places frequented by damurra dangkaa. Such rules must be observed by everyone. In contrast to the ancestor beings, these powerful beings are permanently present in living form and always potentially dangerous. Again, however, they are tied to particular places or areas.

Thirdly, there are powers under the control of members of particular estate groups, such as the cyclones, waterspouts, winds, and mosquito plagues that can be unleashed either purposefully by the action of knowledgeable dulmarra dangkaa or “site owners”, or accidentally by outsiders behaving inappropriately in a particular place, e.g. by breaking a stick where one shouldn’t, or passing over a particular reef without identifying oneself appropriately or being introduced by a dulmarra dangkaa speaking to the site using appropriate Kayardild expressions. These powers function to maintain the system of land and sea tenure, by ensuring that permission and information is always sought when travelling or using resources outside one’s own country, for fear that otherwise such powers will be provoked or directed at the trespasser in retribution.

Fourthly, there are personal connections to particular sites of spiritual conception, where the spirit of a future child “signs” or presages itself to the father (an event known as ngaarrngij) through some unusual event, such as a fish or dugong presenting itself for killing rather than trying to escape, or a part of the landscape undergoing an unusual change (e.g. multicoloured rocks at a Rainbow site becoming visible again, after being covered with sand for many years); this spirit passes, via the father, into the child in the mother’s womb, and later shows itself through a physical mark or “sign” on the child, such as a screwed-up ear in a child presaged by a dugong, or a birth-mark in the same part of the body as where the animal was speared. These conception events have a number of consequences – they are recorded in naming practices (§2.2), are one factor in affiliation to country (§4.4.3), and create a lifelong personal relationship between a person and the site where they were conceived, that will be pointed out to the young child and frequently repeated.

In all four of these dimensions, religion and spirituality is directly tied to particular areas of the sea or land. As a result, spiritual well-being, a sense of knowing one’s special place in the world through ties to a conception site, physical well-being through the observance of proper dietary and other laws of behaviour, and the health of the land- and sea-scape as a whole, are all dependent on continuing proper relationships to Kaiadilt country and its special sites.

1.3.2 Economic connections

Today, as in the remembered and recorded past, the economics of Kaiadilt life is dominated by the sea.

…

This economic emphasis on the sea is not surprising, given the contrast between the rich food sources there and the impoverished ecology of the land, essentially limited to sandhills, low scrub, and saltpans; the only sizeable freshwater source is the lagoon at Nyinyilki (main base), which in many years holds freshwater through the dry season, and has a large population of waterlilies. With no wallabies, kangaroos, possums, emus or bees, the island offers little more in the way of meat than the odd goanna and some birds, and, in season, spike-rush corms, waterlilies and some rather undersized roots.

The intensive nature of Kaiadilt exploitation of sea resources is underlined by the widespread construction of stone walls, some extending hundreds of metres out from the shore line, which function as fish-traps; these are called ngurruwarr or dardangind in Kayardild. Although such fish-traps are a feature of the whole Wellesley region, they reach their highest density in the South Wellesleys (Robins, Memmott & Trigger, n.d.).

…

In the contemporary context there have obviously been changes in the pattern of Kaiadilt economic activity. The availability of store goods means that a substantial proportion of people’s diet is not obtained by hunting, fishing and gathering, but through purchase. At the same time, new technology has been incorporated into the traditional pursuits of fishing, gathering and hunting. Dugong and turtle are hunted from motor-powered dinghies instead of from the mangrove-root rafts known as walbu, using harpoons (wap) introduced from Torres Strait during the mission period; drag nets have replaced the old methods of blocking the mouths of creeks and estuaries with grass, or the use of smaller bark-string nets; and fishing with line and hook has supplanted the older method of attracting fish with bait and line, then spearing them.

Nonetheless, despite all these changes, Kaiadilt people continue to draw the major part of their food supply from the sea. On weekends and holidays, and frequently during the week as well, people spend long periods catching fish (both sexes by line, men also by spear), getting shellfish and oysters (mostly women), spearing mudcrabs (mainly men), taking turtle eggs (men and women), and hunting turtle and dugong (men).

My estimate, over the sixteen years I have been observing the Kaiadilt, is that 90% of all food-procuring activities by Kaiadilt people were sea-oriented (including the mangrove zone and beaches), the remaining 10% covering such activities as hunting on land for bustard and other birds, wallabies (on Mornington and Forsyth), fishing in freshwater waterholes, and gathering fruits and roots inland.

Because of the importance of dietary laws in traditional Kaiadilt religious belief (see §2.3), these foods from the sea play more than an economic role, since they serve as a basis for maintaining physical and spiritual health, for reinforcing ties of family and kinship, and for practising certain types of religious observance. The two major “feast foods”, dugong and turtle, which in pre-contact times were the occasion for communal eating and relatively formal invitation through a marrjinda dangkaa (messenger), remain the preferred foods for large ceremonial gatherings. Dugong oil is kept in plastic bottles and widely used as a restorative. Kin-based rules of sharing apply to food taken from the sea, but not to shop foods, which are more frequently consumed in isolation. Large packages of meat from turtle and dugong is regularly sent to people living on the mainland, in exchange for “bullock” beef.

The process of obtaining such foods, through hunting, fishing and gathering, is also much more than an economic one, since a typical hunting or fishing excursion will integrate a number of cultural dimensions: “looking after country” (e.g. through burning off grass at an island visited en route), passing on knowledge of sites to junior Kaiadilt through naming of places, recounting of stories, and signalling of any special behaviour needed in the area, maintaining contact with sites by addressing them as one passes by and introducing them to new junior members of the group, general instruction in language and culture through naming plant and animal species and pointing out their special characteristics, and serving as the occasion at which conception events can be signed to any potential fathers in the group, thus providing a basis for later affiliations of children to country.

1.3.3 Connections of cultural and linguistic identity

The identity of Kaiadilt people, as in Aboriginal Australia more generally, is closely tied to their country, both directly through their affiliation to particular sites, but also indirectly through their self-definition as people who speak Kayardild, the language of the South Wellesleys.

People know, and frequently state, where their own country is, receive names on the basis of their country, and frame who they are in terms of where their country is; this typically includes sea-sites, and many people’s names (e.g. Balarruru – see §2.2) are the names of sea countries. Certain types of name – most importantly - ngathi names, which originally marked birthplace but now mark place of conception (§2.2) –ceased being given while people had no access to their home country, but have been revived since the establishment of outstations gave access to the South Wellesleys.

The majority of Kaiadilt people behave in very different ways when they “sit down la our own country” from when they are guests in someone else’s country – most typically, in Lardil country on Mornington Island. In their own country (i.e. on their own estate) they can act as they please, without needing to ask anyone; in someone else’s there is always an inhibition and tension coming from the need to ask the permission of country-owners before going places or accessing resources, often expressed by the statement “we no-one here”. See §2.4 for further discussion of the homesickness, and possible psychological effects, experienced by Kaiadilt during their “exile” period.

…

The difference in how Kaiadilt behave between when they are dulyaland and when they are in their own country means that they feel uninhibited and at home transmitting their language and culture to their children and grandchildren when in the South Wellesleys than when residing elsewhere. Senior Kaiadilt talk and call out in Kayardild language, modelling appropriate utterances for their offspring, telling stories and singing lullabies; young children who on Mornington are reluctant to use Kaiadilt language are happy to speak it when in their own country.

…

The transmission of Kayardild language to the younger generations was seriously curtailed during the Mission period. There were many reasons for this, but enforced residence outside their own country was one of the more important. Kaiadilt people are now making efforts to restore their language to fuller use, and for the reasons given above, recognition of their rights and interests in the South Wellesleys, with the legitimation this provides to residence there, access to sea sites, and management and use of the local sea resources, is an important factor in supporting these facets of their traditional identity.’

(Original emphasis)

124 I am satisfied from the evidence of the Kaiadilt witnesses, the evidence of Dr Evans, including his substantial reports, and the published articles of Tindale dealing with the Kaiadilt people, that prior to their expulsion from Sweers Island during the time of the Carnarvon township and during the time John MacKenzie was active on Sweers Island (between approximately 1917 and 1920) the Kaiadilt peoples inhabited Bentinck and Sweers Islands and hunted and fished on and around the numerous islands and reefs which surrounded Bentinck and Sweers Islands. I am also satisfied that Bentinck and Sweers Islands were notionally divided into Countries or estates with defined boundaries and a frontage to the sea. People belonged to particular Country in accordance with a complex system of normative rules determining the relationship between a Kaiadilt person and Country. Some indication of the rights which went with Country and the manner in which rights in respect of Country were acquired, is contained in the evidence of Roger Kelly set out earlier in these reasons. Mr Kelly lived the traditional life of a Kaiadilt person prior to the Kaiadilt peoples move to Mornington Island and the exposure of the people to the mission there. His evidence, as with all of the evidence of the elder witnesses from all constituent groups, carries much weight because it is evidence of pre-contact society, or evidence of people who had direct contact and received the stories from people who had lived the traditional life before significant European contact.

125 I am satisfied that at the time of sovereignty, a system of normative laws and customs relating to the division of Bentinck and Sweers Islands into identifiable Countries, with complicated rules for the allocation of person to Country and the granting to that person of rights to reside in and engage in activities in that Country, existed in the same or substantially similar form as existed in the 1940s on Bentinck and Sweers Islands. I am also satisfied that such Countries had identifiable side boundaries with indefinite rear and sea boundaries. Although the Kaiadilt witnesses described their sea Country as going to the horizon, I am satisfied on the evidence of Dr Evans and listening to the evidence of the practical content of the ‘permission’ rule that the right to control access to Country was limited to the inter-tidal zone and adjacent seas, including the accessible reefs and sandbars. There is evidence in the journal of Matthew Flinders of sightings of Bentinck people using rafts to access surrounding islands and there is direct evidence from Roger Kelly of such activity. There is also evidence of the use of rafts to travel from Bentinck Island to Allen Island in 1940, a distance of eight miles during which passage three persons died by drowning. This, and other evidence of raft use by the Kaiadilt people, would justify a finding that the Kaiadilt people made greater use of rafts in their traditional lifestyle, but it does not in my view translate into identifiable rights and interests with respect to the deep waters of the areas claimed as traditional Kaiadilt territory under the traditional laws acknowledged and customs observed in respect of those waters. Even if, as Dr Evans eventually considered the position to be, the outer sea areas ‘as far as the eye can see’ ought properly to be regarded as communal Kaiadilt territory as opposed to discreet sections of sea Country embodied in the relevant Countries, the communal nature of the claim does not, in my view, for reasons I have given in relation to the Lardil and Yangkaal traditional territories, translate into identifiable rights or interests and did not involve a right to control access to that area.

126 I find that the Kaiadilt peoples shared hunting, fishing and foraging rights with the Yangkaal peoples and Gangalidda peoples on Allen, Little Allen and Horseshoe Islands, and on and in the surrounding reefs, sandbars and seas. However, I am satisfied also that the Kaiadilt forcibly maintained the area of their traditional territory and speared intruders. That is, other than shared rights in particular locations, the Lardil, Yangkaal and Gangalidda peoples had no rights to access or hunt in Countries in traditional Kaiadilt territory at the time of sovereignty.

the mingginda peoples

127 The area claimed as the traditional lands of the Gangalidda peoples includes an area along the mainland coast from near Moonlight Creek eastwards to the mouth of the Leichhardt River. The land and adjoining seas were once part of the Country of the Mingginda peoples. Those peoples did not survive the impact of European contact and the Gangalidda peoples claim their land by succession under traditional laws acknowledged and customs observed by the Gangalidda peoples at the time of sovereignty.

128 In his report entitled ‘Report Concerning Gangalidda People’, Dr Trigger surveyed the anthropological materials which establish the existence of Minkin (also known as Mingginda) peoples inhabiting the lands in question. As to the demise of the Mingginda Peoples, he concludes:

‘Causes of the demise of Mingginda People doubtless included violent encounters with Whites and also disease. On the last point we can note Sharp’s comment (1939:454, footnote 41) that the “Minkin” tribe was at the time of his research “apparently extinct, probably having suffered severely from the yellow fever which decimated Burketown in the 1860s”.’

129 Dr Trigger set out his field work in relation to the area and recorded that during the time of the Mingginda peoples, because of close ties between the two peoples, some Gangalidda peoples acquired interests in Mingginda Country through birth and conception places, and the Dreaming connections. Dr Trigger then concluded:

‘To this extent, I regard Ganggalida occupation and ownership of Mingginda coastal areas as a case of completed succession. This process occurred during the early decades of this century and may be considered consistent with regional custom and tradition. Ganggalida and Mingginda peoples shared closely related languages (Evans 1995: 9). Tindale (1974: 181) suggests that the Mingginda People also belonged to a group of southern Gulf Indigenous societies which shared features of law associated with male initiation. Circumcision was not practised east of the Leichhardt River; nor were subsection terms used. The Leichhardt River is thus a traditional boundary of considerable importance and both Ganggalida and Mingginda belonged to the cultural bloc extending to its west.

My senior informants during the late 1970s and early 1980s suggested that Ganggalida and Mingginda cultural traditions were very similar. In 1998, this view was repeated; e.g. Eric King comments (SP p.14) that Ganggalida and Minggin people “nearly talk the same language” except “one was a bit heavy one a bit light”, and in a conversation among Major Walden, Alfie Johnny and Michael Diamond with Peter Maden (SP p.15) the comment was made that Ganggalida and Mingginda Peoples were historically in close social contact.

Thus, with the demise of the Mingginda people as a viable social group, the Ganggalida people who moved into coastal country in the vicinity of the Nicholson and Albert rivers succeeded to ownership of this area of saltpans, rivers and seas.’

130 The second respondent submitted that the interest claimed by the Gangalidda peoples in the former land and waters of the Mingginda peoples was not a right or interest held at sovereignty under the traditional laws and customs of the Gangalidda people. That is, it was an interest acquired post-sovereignty which was not recognised by s 223(1) of the Act.

131 In my view, the submission of the second respondent is incorrect. The new legal order at the time of sovereignty recognised both existing rights and interests in relation to lands and also ‘the efficiency of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty.’: Yorta Yorta at [44]. If the rights and interests in respect of the Mingginda peoples’ countries was acquired under traditional laws and customs which provided for such a succession and those laws and customs existed at sovereignty, then the interests of the Gangalidda peoples in respect of those lands and waters will be recognised and protected under the Act.

132 The evidence of Dr Trigger satisfies me that the succession to the lands of the Mingginda peoples by the Gangalidda peoples occurred under traditional rules and customs which were acknowledged and observed at the time of sovereignty by both peoples. The clear impression that one gains from the material is that as the Mingginda peoples declined as a viable community and the surviving members of that community together with the traditional lands of the Mingginda peoples were absorbed into the Gangalidda community and territory; a process of merger and absorption which occurred over time with the agreement of the Mingginda peoples under their traditional laws and customs. It follows that I am satisfied such rights and interests as the Gangalidda people obtained under their traditional laws and customs in the Mingginda lands are capable of recognition and protection under s 223(1) of the Act.

the original gangalidda peoples

133 In his report, Dr Trigger also documented the extent of the Gangalidda Country:

‘Among the claimants, Ganggalida country is regarded as encompassing land and sea stretching along the mainland coast from Massacre Inlet in the west to the Leichhardt River in the east.

…

Ganggalida country extends inland and also out into the sea. In terms of Indigenous customary law, the dimensions of Ganggalida country are conceptualised through oral traditions that recount where previous generations of Ganggalida people lived and used natural resources. The travel routes and feats of various Dreamings or mythic beings also designate the boundaries of this linguistic territory… The spiritual properties of Ganggalida land and sea are regarded as imbued with the Ganggalida language; thus, it is said to have been spoken by major Dreamings when within Ganggalida country. It is believed that this language should be spoken by people when in the bush or at sea in order to remain safe and have reliable access to foods and other resources.

…[T]he sea is regarded as Ganggalida cultural property northwards for an unspecified distance from the beach, in the sense that … there is no precisely designated point where Ganggalida seas are said to end. When asked to comment directly on how far out to sea Ganggalida country extends, many people will speak of the distance it is possible to see.

…

Dreaming routes which go through the sea … are positioned generally rather than precisely. They are designated in a broad fashion as associated with the body of off-shore waters (including the sea bed). The major Dreamings with travel routes through the sea are Dingo (Ngawa), Rainbow (Bujimala or Dirra), Dugong (Bijarrba), Groper (Guridi or Bununggaji), Shark (Guldiji or Yulumunji) and Travelling Rainbow (Walalu). Each such Dreaming, as well as others located within Saltwater Country but without designated travel routes through the sea, is affiliated to particular areas of the coastline (estates). In the Ganggalida perspective, the Dreaming routes are thus fundamental expressions of core aspects of their people’s spiritual connections to the sea. ...

…

In the vicinity of seas extending from the mainland out to off-shore islands Ganggalida country is said to be shared or mixed with the property of two other language groups also involved in the Wellesley Sea Claim. From Bayley Point out to Bayley and Pains Islands, the area of seas is shared with Yanggal people; while from Point Parker towards Allen and Horseshoe Islands (and further towards Bentinck Island) the waters are shared with Kaiadilt people…Ganggalida seas can be said to go “half way”; i.e. until the Lardil, Yanggal or Kaiadilt seas are encountered.’

134 As to the Dreaming of the Gangalidda people, Dr Trigger wrote:

‘Another matter of importance with regard to the general cultural significance of the sea is claimants’ views about their law pertaining to the sea bed. When claimants discuss Ganggalida rights and interests in the sea their “law” is said to belong to the sea bed, the water and all the resources within them. In part, this is understood as following from the connections between these separate but closely linked features of the sea ...

... Flora Nero (EM p.27) comments that Dreamings “go right through the waters, go to the bottom, through the surface and down the bottom”; to which Eva Gilbert added, in the same interview, that Dreamings “touch the sea beds and sometimes … under the surface underneath”. April Peter (EM p.65) responds to the question of whether Dreamings encompass the sea bed by answering: “yes, to the bottom, right down, they gotta dive for the food sometimes”. Thus, the major Dreamings known to have moved through the sea are regarded as mythic animals which ate and lived in some respects like the individual animals of that species do now:

...

Associated with this view is the fact that the “skin” (or subsection) affiliation of a major Dreaming (see the discussion below) is believed to imbue the places in which it is located. Thus, a number of claimants have suggested that Dreaming routes through the sea mean that the essential or internal spiritual qualities of those Dreamings permeate waters and sea beds. This is not a belief leading to a systematic designation of particular subsection affiliations at specific places in the sea. It is an assumption about the significance of the general waters and sea bed through which a number of important mythic figures are said to have travelled. Thus, the various Dreamings are regarded as permeating the sea with Ganggalida spirituality, thereby constituting it as Ganggalida cultural property.’

135 Dr Trigger also gave oral evidence in relation to the laws observed by the Gangalidda and the requirement of permission to access property:

‘... [I]n my opinion, while permission and rights of ownership operate at the estate level, the question of which places people assert are their rights in and their rights to give permission and so on will vary according to circumstances. They have a number of options that they can negotiate about. So, I would describe the matters of permission and ownership as subject to the indigenous polity, a system of politics by which people are able to negotiate over the reasons why they may have a right over seas at Gunamula but, equally, in some circumstances, there may be reasons why they would voice their interests in the seas at Old Doomadgee or Moonlight Creek and so on. So, I'm saying, I suppose I link this to the proposition in my report - or my conclusion that there is a sense of collective interests and collective rights across the Ganggalida population to the Ganggalida seas in general.’

And in his report:

‘Associated with the right to control the taking of marine resources is the view that Ganggalida people, according to their law and custom, have rights to say who might move through and use the seas more generally. Both non- Aboriginal people and Aboriginal people other than the Saltwater People of the Wellesley Islands ideally require permission before travelling through Ganggalida seas. In the Ganggalida perspective, this amounts to a right to exclude such persons, prior to agreement being reached after requests for access to the seas.’

136 Dr Trigger was of the view that the Gangalidda people had greater contact with the rear Country than the other constituent groups because of the existence of other peoples with adjoining territorial lands and because of the existence of food sources other than seafoods. Notwithstanding this, the food resources of the sea were important to the Gangalidda peoples and there was evidence of long standing fishtraps and the use of rafts to access the area of Francis and Robert Islands as well as Allen, Little Allen and Horseshoe Islands for hunting and fishing purposes.

137 I accept the evidence of the indigenous witnesses and Dr Trigger that access to Country and activities in Country was controlled by a normative system of rights and obligations, and that because of the complexity and range of the mechanisms by which one could acquire rights to enter and engage in activities based on patriclan relationships or skin relations, there was a greater fluidity of movement between Countries and places where activities were engaged in, than occurred in the other applicant groups. That of itself gave rise to a range of conduct engaged in by Gangalidda people which Dr Trigger described as appropriate or necessary ‘etiquette’. I accept his evidence that behavioural conduct which is described as ‘etiquette’ may mask, but does not deny, the validity of the core requirement that their must exist a right or rights in respect of Country upon which the rules as to ‘etiquette’ were built.

138 The rights which went with Country extended to the sea part of Country, and, in the absence of a right to access and engage in particular activities there, the permission or approval of somebody entitled to speak for that Country was required. However, there is no evidence that the right to control access to Country extended to the areas of deep water beyond the inter-tidal area and adjacent seas, including the accessible reefs and sandbars. Because the shallow areas adjacent to the coast in this area extend a long way offshore, at low tide the sea Country portion of Country covered large geographical areas. There is little in the material (other than in relation to the shared territory) to establish any physical connection of the original Gangalidda peoples to the sea areas beyond the inter-tidal areas and shallow waters beyond the claim that so much of the world as was within the vision of the beholder was part of that person’s Country and the groups’ traditional territory. That distant Country, in contradistinction to Country within the vision of other persons, did not require defined boundaries and the maintenance of a right to exclude others from it or to control their activities in it. Where, however, areas were within the vision of others and accessible to them, it required that there be identifiable boundaries which were maintained by acknowledgement or force. Thus, between the Yangkaal, Kaiadilt and Gangalidda peoples, there are and were accommodations as to access and use in respect of accessible areas.

139 This is not to say that the distant waters do not have a relevance and connection with the religious and spiritual beliefs of the Gangalidda people. There are Dreaming paths and sacred places within the deep waters. For example, the distant waters includes part of the Dreaming path of the Rainbow Serpent as it came from the traditional territory of others and passed through Gangalidda territory into the adjoining territories. The distant waters also include an undefined area in the seas where the spirits of the deceased find their final repose. That said, the evidence does not disclose any right or interest under traditional laws and customs acknowledged or observed by the Gangalidda peoples which translates for the purposes of this application into a right to control access to, or to exclude persons from, sea Country other than the inter-tidal zone and adjacent seas including accessible reefs and sandbars.

the single claim to all the traditional territories

140 At sovereignty, there was no over-reaching communal system of traditional law acknowledged or customs observed with respect to the land and waters within the claim area by the applicant group as a whole, or by the groups separately, which gave any constituent group rights or interests in the traditional territories of the other constituent group. Any cross-grouping rights were held at an individual level under the specific traditional laws and customs of the constituent group in whose territory the particular land and waters were located. Any agreement made post-sovereignty by the four claimant groups to treat the determination area as a single communal area held by them jointly with four internal areas which they each held separately, is not one recognised by the Act: Yorta Yorta at [43] - [44].

the concept of ‘OWNERSHIP’

141 The right to control access to Country (which was a common feature in respect of the Countries of each of the constituent groups, so far as they related to the inter-tidal zone and adjacent waters including access to the reefs and sandbars) meant that within the relevant Country, the permissible uses of the land and waters were held as rights by those entitled to exploit them to the exclusion of all others who did not hold such a right under the traditional laws and customs. This included, for example, the rights to fish and hunt in the sea Country, the right to construct fishtraps as well as the right to harvest the plant resources for use and consumption and the like.

142 The applicants assert that they own the seas, the sea bed, the subsoil beneath the sea bed and the resources of the seas in their traditional territories. They submit that although their ownership is subject to the common law rights of fishing and navigation, their ownership of each of these elements would, for example, entitle them to maintain an action in trespass to restrain a person entering upon the seas or sea bed for a purpose other than the reasonable user of the public right. The interests which are contended for are proprietary interests in the seas; the sea bed and the substratum beneath; and the resources in the seas.

143 There were significant differences in the responses of witnesses with respect to ‘ownership’ of these elements. For example, Valerie Douglas, a Gangalidda woman, gave the following evidence:

‘When you say “they passed laws down as far as you can see as hunting and fishing country” I’m trying to understand what you mean when you talk about “as hunting and fishing country.” Are you saying that they really said to you, well, you can hunt and fish on this country? --- You can hunt and fish as far as your eyes can see.

Is that what they said to you about this topic? --- Yes.

And you have named two people there: Thelma Jupiter and Emily Ned? --- Mm.

That is what those two people said to you; is that right? --- Yes, there is more. There is some still alive who already told the stories to me.

All right. And do you remember any particular occasion when they told you that? Were you standing at a particular point, or has this been on a number of occasions? --- Been told to me when I first went to Old Doomadgee.

Has anybody ever stood on the coast with you - - -? --- Yes.

- - - and discussed that with you? --- Yes, Willy Doomadgee and Lizzy Daylight. They’ve passed on now. Eric Peter, who passed on.

And is what they’ve said to you much the same, that is, that they would point out to sea and say, as far as you can see is your hunting and fishing country? --- That’s right.

Have they said anything else about that country? --- They said “This is your country. This is your father’s country, and your father’s father’s country.”

...

MR HILEY: You know Roger Kelly? --- Mm. He has said that as far as he is concerned, his mob doesn’t own the water, but can I ask you a question: do you consider that you and your people own the water itself? --- Well, I really believe that we do own the waters, because we do have a language name for our water, and also our living creatures that lives in the sea, they feed off the food that grows under water.

All right. There have been various people, Roger Kelly, Karen Chong, Amy Loogatha, Kenneth Jacob, and one of the witnesses this morning talked about fish and things in the water, and they agreed with the proposition that it is only when they catch the fish, or spear the fish that they actually consider that the person who catches it owns it. Would you agree or disagree with that? --- Well, that is a hard question, but I really believe that what we catch from out of the sea it lives off water, and I really believe that we do - we really own what we can - as far as our eyes can see.

But when that fish swims out of your country into someone else’s country,

you don’t still own it, do you? --- No.’

144 On the other hand, June Gilbert, another Gangalidda woman, appeared to hold a contrary view:

‘You say in paragraph 40 - the last sentence in paragraph 40:

The sea at Dumbara is my grandmother’s sea.

You see that sentence? --- Yes.

Now, by that - is it fair to say that by that you mean that area is the area that your grandmother is connected with in the way that you regard traditional law of connection? --- Yes, that’s - - -

Well, I just want to ask a little bit more about that? --- Yes.

You haven’t been told that the traditional law means you actually own the sea water itself, have you? --- No. No, I haven’t been told that, but because of the connection between us, the land and the sea.

Yes. So the sea water itself comes in and out with the tide? --- Yes.

So you’ve got no traditional law that says you own the sea water? --- No.

And you might have heard some other questions today about the fish in the sea? --- Yes.

And the fish swim around in the sea, and they might swim from one country to another country, and they might swim way out beyond anyone’s country? --- Mm.

I want to suggest that there’s no traditional law that says you own the fish while they’re swimming in the sea? --- No.

It’s only when you actually catch them out? --- Catch them out with a line, or - you know, haven’t been getting them out of the trap or anything.

No. So when you get it, it’s yours? --- Yes. Yes, it’s mine when I get it.

When it’s swimming, it’s not yours? --- It’s not mine.

And that’s the traditional law as you understand it? --- Yes.

And that would apply to all living things in the sea? --- Yes. Yes.

Okay. And what about - you might have heard me ask some other questions about the actual sea bed? --- Mm.

Have you been told that there’s any traditional law that you own the sea bed itself? --- No, I haven’t been told that.

You don’t think that’s part of the traditional law of the Ganggalida People? --- Whatever’s in the bottom of the sea - like, the tide goes out, it comes in and brings the shells back, and they - our old ancestors used to gather shells along the bay.

Right. So what you’re more concerned with, or you say the traditional law is concerned with - collecting the things that might come into the shore from the bottom of the sea. Is that a fair description? Don’t agree with me if you don’t; just tell me that it’s wrong? --- No, I don’t think that’s a fair description.

You don’t think that’s right? --- No.

Okay. Let’s explore it a little bit further, and let’s try and divide it physically, all right? You know where the high tide mark is and the low tide mark is? --- Yes.

Let’s go beyond the low tide mark, and the sea bed below the water of the sea - the actual bottom of the sea, the sea bed down there, and it goes from the shallow water all the way out to the deep water. I want to suggest to you there’s no traditional law of owning the actual sea bed itself. Do you know geographically where I’m talking about - the area I’m talking about? --- The bottom of the sea you’re talking about?

Yes, the bottom of the sea? --- No, I don’t think we own it.

All right. Well, what I want to know is: do you agree that there’s no traditional law about owning that area? --- Yes. Well, I agree to that. As to out in the deep, no one can go out in the deep. He’d get drowned.

That’s right. So there’s no - I mean, the Aboriginal people had no usage for that area - - -? --- No.

- - - because they never got down there? --- No.

And similarly, there’s no traditional law about owning whatever lies beneath the bottom of the sea. You know, if you dug it up - there’s no law about what lies beneath the bottom of the sea? --- There’s nothing to dig up.

Not for Aboriginal law, anyway? --- No; not for anyone.

Okay. Well, then, perhaps I’ll just give you a chance to explain what you meant when I put a proposition to you and you said you didn’t think that was right. I tried to paraphrase back to you what you said to me. I’ll try it again, and you explain to me where it’s wrong. I thought that you might be saying that traditional law is concerned more with getting things that might come in from the bottom of the sea, like the seashells and the crabs that might come in? --- Mm.

And I thought you disagreed with me, and I’m inviting you to explain to try to clarify my thinking? --- I want to - - -

What we’re trying to - it’s all right? --- I want to answer that question.

I’ll try to make it a little bit clearer? --- Make it a bit clearer.

What we’re trying to get at is whether there’s any concept amongst Ganggalida traditional law that the Ganggalida People own the sea bed? --- No.

And I’m suggesting there probably isn’t. I think you’ve agreed with me in some respects, and I’m asking you: if you disagree with me in any respect, explain it to me? --- Well, as you said, Aboriginal people don’t own the sea bed.’

That’s what I’m suggesting? --- Yes.

Are you agreeing with that? --- Yes, I agree with that. We don’t own the sea bed.’

145 Similar views to those of June Gilbert were expressed by other witnesses: Roger Kelly, a Kaiadilt man, Reggie Robertson, a Gangalidda man who also equated ownership of the sea with ownership of sea rights, and Robyrta Felton, a Yangkaal woman.

146 Mrs Felton spoke of both Yangkaal and Lardil law. She said:

‘ ... At paragraph 48, Mrs Felton, you say that the law is that if you are born in a place then you can hunt and camp and even stay there, but you don’t have any ownership rights to that land. Is that a Yangkaal law? --- You know, there’s a - our laws are not being adhered to by some of our people. We have laws on where you were born. Where you were born you have rights. You have rights to fish, you have rights to camp, you have rights to walk through the island or walk through the land, but you cannot hold the title to the land.

Now is that a Yangkaal law? --- It’s Lardil and Yangkaal.

Lardil law and it’s a Yangkaal law? --- Yes.’

Later in her evidence, she appeared to qualify her statement when she said:

‘You personally have country on Denham Island? --- Mm.

And there are other family groups that have different parts of Denham Island. Is that correct? --- Mm.

And there are other parts of Yangkaal country that other particular families are responsible for. That is their country? --- Yes, that’s like Forsyth, and Francis Island and Robert Island. The Yangkaal People own all those islands right up to Denham Island and this part of the mission. If you see Tindale’s map from Slims Creek right down to the creek there, it is Yangkaal country. My grandmother gave missionary her well so that that well could supply water for the dormitories, the village - dormitories and the school, and the mission house.

Well, who do you regard - do you personally use the word “own” when you’re talking about your relationship with your country? --- Oh, yes.

You regard that as the appropriate word to use? --- That’s right. We own the country. And owning is also we look after the country, and that owner - the status of an owner wasn’t just given to us, plucked out of the air. It is handed down from generation, to generation, to generation, the ownership and title of one’s land, and this is why we say we own the land.

And when you say that in relation to your country, you are saying that is my traditional law. That is my traditional law as a Yangkaal woman. Is that correct? --- That’s right, yes.

And when you say that, according to the traditional law, is it you and your family with the Dulmada for that country who are the owners? --- The Baldanmarr.

I’m sorry? --- I said the baldanmarr.

I have got that wrong, haven’t I? --- That’s word to be coming to me. A Baldanmarr.

Right. Again, the complexity of speaking a little bit, but you understand my point? Do you say that there is a distinct group of people who are, however you call it, Baldanmarr or Dulmada, that distinct group of people are the owners for that country, or do you say that the traditional law is that the whole of the Yangkaal People should be regarded as the owners of the country? --- No, the Yangkaal People, we’re tribal people who stretch right almost to the mainland, and each clan group owns their land.

Each clan group within the Yangkaal? --- Yes. And these lands are sometimes divided by trees, by creeks, by hills, your boundaries, and although you belong to that one tribal group, one tribe, you are a clan. We split up in clan groups, although we’re all Yangkaals, and they talk about this permission. The permission is - it is a very mixed-up word. To me, the word permission is non-Aboriginal way of describing permission. We have a different interpretation to the word “permission.” Like the white people, the permission is literally permission, but we have a different interpretation. Our interpretation is more allowing one - allowing someone to go through the land, or allowing the person to camp. You get me?’

147 I am satisfied from what I have heard from the indigenous witnesses that their concept of ‘ownership’ of the seas, the sea bed, the subsoil and the sea resources is not one based on common law concepts of property; it is a concept born out of the connection of the peoples to each of the elements through their spirituality. The seas, sea beds, the subsoil beneath the sea bed are important because they are the elements in which the creatures and spirits to which they are bound live. They are the elements necessary to support the resources of the sea upon which the peoples rely for their sustenance and in respect of which they owe obligations to husband and protect because of the kinship ties between them. There is no evidence that the peoples used the sea beds or the subsoil or used the sea water itself for any worldly purpose. However, the sea grasses are critical for the dugong and the spawning of prawns and the clean waters are necessary for the fishery. Further, the spirits of deceased ancestors reside in the waters of the seas, the spirits and creatures of the Dreaming traverse the Dreaming paths in the seas and mystical creatures, including the Rainbow Serpent, live beneath the sea bed in the world below.

148 This relationship with the elements was best described in the evidence of Wadjularbinna, a Gangalidda woman, but was evident in many ways in most of the evidence of indigenous witnesses from all constituent groups. It was also a relationship widely held amongst Gangalidda people according to Dr Trigger from his discussions with them over time. Wadjularbinna said:

‘ ... In our belief, we’re born with the human spirit inside of us that connects with the spirit in creation, so we’re connected all the time, and spirit you can’t see, and it is not written law, but we know that that law is there, and I want to also say, while we’re on this subject, that spirit is - it could be in the Dreamtime; it is present today, and is a part of us for the future, from the cradle to the grave, so it doesn’t lose its value or the spirit doesn’t lose its power and connectedness with creation and people. Never. I mean, it is as strong today as it was in the Dreamtime.

Yes. And that is something that you were taught was part of the traditional law for Ganggalida people? --- Law, religion.

Yes, part of the religion? --- Culture, and the social structure is all part of it, and as we get older, we learn by example from our people how to live it.

Yes, thank you. And certainly you were taught that that’s all part of the Ganggalida social structure and you’ve learnt since - or you also learnt, I suppose, that there is similar structure for other Aboriginal groups? --- Yes.

Particularly ones that you have mixed with, I suppose, like the Garawa and the Waanyi? --- And I mixed with these people here and they all have it, people in the sea and on the land. Land and sea is sacred to us. They’re both sacred and the sea is no good without the land, and the land no good without the sea and we’re connected to both.

...

And then you go on to talk about - you say:

Only people from Dumbara can give permission for that place.

Is the reason for that that if somebody does come on to Dumbara country and maybe get sick or has an accident, maybe the spirits might blame you for that? --- No, we - it’s very clear that every Aboriginal person who has the system knows what their rights are before they come and ask permission to be there.

Yes? --- And we know that they know, so we just remind them, “Well, you do everything right, you know, and I don’t have to tell you.” But our concern is people who aren’t spiritual and who aren’t connected. When they come in they don’t know how our system works.

No? --- And they see land and sea as a commodity: land as a commodity to be bought and sold and the sea and natural resources to be exploited. So I mean then it comes up against the spiritual and our teachings and our values. So that’s why we can’t apply our law and our system to those foreigners, not the way we talk to each other and allow each other to be on the land. There’s a very big difference because the other people who come from a material system. Ours is a spiritual. And the two just don’t meet.

No, all right. So when you go on to say, in paragraph 78, and say:

People should ask, they should ask for permission.

You say you would like people to ask. You would like everybody to ask, even people that don’t form part of your system, part of your belief system. You would like me to ask and other people to ask? --- That’s exactly right.

Yes? --- Yes.

Because in your belief system and according to your laws bad things could happen to people by accident if they went on to your country and did the wrong thing? --- Well, bad things can happen not only to whoever comes in. They could do bad things to our connectedness to the plants, the animals, the birds, the trees and everything that is sacred within a sacred land. So - I mean, it’s enormous the responsibility that we have, you know. It’s one thing that you can’t take lightly because we have to make sure that these people who come in, what are their motives? Because it’s not only if they get hurt, but what are they coming in - they’ll damage our sea and our land and we are responsible to keep that for future generations. It’s in our law. It’s not just something that you can avoid or just brush aside.

...

... you’re concerned that white people don’t really understand your law and so white people and maybe some other Aboriginal people too, would not realise that they should be careful where they go; they shouldn’t go to sacred sites and damage them, and they should also be careful that they don’t do anything that damages your resources, your fish resources and your food resources? --- But it’s not just sacred sites. It’s sacred sites within a sacred land and scared sites within a sacred sea. They’re all sacred, you know. The sea - the tide comes in and the tide goes out - and I heard you say to the others yesterday and others before me, that the deep - you don’t have any say in the deep. The water that’s out in the deep, it moves and it comes in on the tide and it goes out. It doesn’t just sit there stagnant in one place. That’s sacred waters, sacred seas. And it’s our responsibility to keep it for the fish and the shark, for our totems that live in the sea, that not only stay in the shallow but swim away out into the sea as well. And it’s our responsibility to make sure - and when people don’t understand the spiritual connection, well, of course they’re going to do damage. It’s going to be greed, you know, and haul all these things in, destroy them and kill them, because it’s commercial fishing and they’ve got to make money.

...

I suggest to you that it isn’t so much a matter of asking permission; it’s more that it’s respectful to let people know if you want to go on their country so that they can say to you, “Well, maybe you shouldn’t go to this place because it’s a dangerous place,” or “Maybe you shouldn’t go now; maybe you should go another time”? --- No. Blackfella - Aboriginal people know the dangers of a land, and we talk amongst ourselves. We know where the dangers are. We know where the sacred places are - where women can go and men can’t go - and the places where men can go and women can’t go. We know it. It’s all in the system. It’s a part of our very being. It’s a part of ourselves, you know. This is all whitefella stuff, asking and having permission and respecting. It’s got nothing to do with it, you know, respecting and asking people the way. See, that’s what I said before: you’re asking from a material system questions to a spiritual, and it’s like people are hard - it’s difficult to give the answer back what you’re expecting to hear, but I’m answering you in the spiritual.

...

I want to ask you about the question of the relationship that you’ve tried to explain to us in your affidavit and here today about your connection with your land. Mr Hiley asked you a question using the word “ownership” and you said, “We don’t own the land we are part of the land.” And I want to explore the notion of ownership and whether it’s appropriate, as you see it, an appropriate concept to apply to your relationship with land and sea. That is the topic I want to explore, all right? Your affidavit says that everything in the sea and the land is sacred to us and by that you mean the living things - - -? --- Every living thing, yes.

- - - in it. But you also include the sea water? --- Yes.

The sea bed and subsoil beneath the sea bed? --- Yes.

You understand what I mean by subsoil beneath the sea bed? --- Yes, because it’s the foundation of which the sea lie on, earth, that ground.

And just for completeness, what I refer to as the intertidal zone, meaning the land between the high tide and the low water mark, that also, it follows, has the same degree of sacredness, the same degree of connection with Aboriginal people? --- Oh, absolutely, because it’s all those areas important to everything - every creature in the sea that we’re responsible for, whether it’s deep water or not so deep or shallow.

When one thinks about the idea of connection to the natural resources in the sea is it appropriate to use the term “ownership” to describe the relationship between the Aboriginal person and the natural resources in the sea, as you see it? --- Only as far as owner. This is my arm, I own it. It’s connected to me.

Part of you? --- Yes. So that thing is - when we say “own” it’s meant like that. We own it. It’s a part of us through this system.

But it’s not - - -? --- Spiritually connected. And spiritual is hard for me to - you can’t see spiritual. I can’t use it there. It’s a feel. It’s a feel and it’s a belief and it’s a connectedness.

But it’s not the same as you own the shirt on your back or your watch or something like that? --- That’s whitefellas law.’

149 How then, is the spiritual connection of the type which I find underpins each of the claims to ‘ownership’ to be translated to the legal form sufficient for the purposes of s 223(1) and s 225 of the Act?

150 Some indication of the content of the right is discernible in an answer of Dr Trigger:

‘... You don’t suggest, do you, that during the classical period it was appropriate to think that the traditional laws and customs of the people you describe as the Ganggalida people contained a concept of ownership in relation to the sea, do you? --- Well, yes, I do. The Ganggalida - - -

In the classical period. So who owned the sea in the classical period? --- In the classical period it would seem to me that the Ganggalida view would have been that nobody else owned the sea apart from them. There was nobody else - no other language group would have owned the waters off from their - from their coast.

It might have been, Dr Trigger, that they didn’t think of the sea as owned? --- That’s possible. All I can do is document the way in which people describe the totemic, the significance of the waters and the seas to me and say “This is Ganggalida law. It’s always been this way”.

But we know, do we not, that there was an ownership concept in relation to estates at least? There was a real sense by which the people regarded estates as owned by a group or groups? --- Yes.

And you’ve already identified that the estates really covered the land and in your report at page 17 you thought that -

The estates are bounded by distinct geographical features to the east and west and by the sea to the north.

And you say:

To some extent claimants associated areas of sea close inshore with the estate immediately adjacent. Much less the case to the seas further out.

There’s a real problem, is there not, with talking about ownership in any other concept than in connection with estates? --- I don’t know what other term we could appropriately use to describe the sense of proprietary interest that people indicate when they stand on the shore and indicate towards the sea. I don’t know how else we could describe it.

...

Can I suggest to you that, during the classical period, the content of the traditional law and custom of the Ganggalida people did not include a concept of the ownership of the fish in the sea? --- Yes. Well, that - I mean, I’ve heard that proposition being the focus of questioning and so on when I’ve - with the Aboriginal witnesses. Now, again, I can’t, with absolute authority, say what was the case prior to contact but, in reconstructing, from what people say - they talk about using all the things in the sea - you know, potentially those things being there for the old people. This is where the old people lived. This is where they camped. They got fish; they got dugong; they got this, that and the other. Now, I made a comment yesterday about what I think has emerged in some responses to this question about whether people own fish before they’ve caught them and I think there’s a distinction between a sense of personal possession in terms of a capacity to hold it and distribute it and use it and consume it, on the one hand, and a sense of collective Ganggalida proprietorial interest when you stand on the beach and look out at the sea and you say, “Well, these things - this is our people’s stuff here.” You know, “This is - if other people start coming in here and taking these fish, that’s not right. They should talk to us first.” Well, that indicates to me a belief in a right to be asked which I think is close to the Aboriginal notion of ownership. ‘

151 The right to be asked and the right to control, as incidents of ownership, were also emphasised by Kenneth Jacob, a Lardil man. He said:

‘... And you say, “I’m the main boss. It means that I control what happens in that country”? --- Mm.

I wanted to ask you what you mean when you say, “I control what happens in that country”? --- Well, I’m the - really I’m the Dulmarr. Dulmada is my children. My boys. They’re Dulmada, but I’m the Dulmarr. I’m the main man who can control anything, tell people what to do.

...

... tell us what you do to control what happens in your country? --- Well, I’m there to control people like for specially hunting. They have to ask me for permission, where to go, where to camp. That is my role as a Dulmarr.

All right. And what would happen if you didn’t exercise that control? What would happen if you didn’t control those things? --- Well - say that again?

You say you have to control where people go and where they camp? --- Mm.

What would happen if you didn’t control them? --- Well, things - - -

What are you concerned about? --- Well, if I don’t control it, things will get out of hand, and people can do whatever they want to do.

What would concern you that they might do? --- Well, hunting whenever they want to hunting. That is like stealing, without controlling my country.

Why is it like stealing? --- Well, they have to ask first for permission, so that the Dulmarr can know.

So that the Dulmarr can know what? --- Yes, want to know if he can get fish from that country, or hunt there.

And does the Dulmarr have any control over the way people behave on your country? --- Oh, yes, they got control - if anyone been mis-behave, it is me the one to control the way they act on my land, my country.

What would happen to people who misbehave on someone else’s country? --- Well, I tell them to go somewhere else, but he don’t listen to me, to go somewhere else, and then trouble start.

Have you done that on your country? --- My father did.

And what about you? --- Well, see, I really want to look after my country, because I don’t want these things to happen, that is why I have to teach my boys to take a role later on when I get old or die, or something.

...

In paragraph 70 you talk about the sea cucumber. You say:

It’s no good for us -

but you still own it? --- Yes.

That sea cucumber in your country. Explain that to me: why is that you - although it’s no good to you, you still own it? --- From where my boundary start from on this other deep water, that’s where my boundary is, and wherever the cucumber is, that’s still all mine, whether I eat it or not, you know.

And why is that? --- Because it’s in my area.

Have you ever eaten it? --- Oh, they gave me once, you know. They reckon that sea slug is good, so they ask me if I want to taste what it taste like, you know. So they cooked it real good, yes. They gave it to me. But when I ate it it was like I was eating rubber or something, you know.

Right? --- Yes, that’s why - you know. But he’s still my sea slug.

So if anybody wanted to get that sea slug from that area - your area - what should happen? --- Well, they still got to ask me. As long as they ask me, and then I could, you know, let them take them.’

152 The right to be asked is the touchstone of the applicants’ concept of ‘ownership’ and underlines that the identifiable right with respect to the land and waters in the area claimed under the traditional laws acknowledged and customs observed was the right to control access and conduct.

the claim to the waters, bank and bed of the albert river

153 The Gangalidda peoples also claim ownership ‘of the waters and lands of the Albert River, not including the islands or banks above the high water mark, from the coast to a notional line across the river where it meets the eastern boundary of Lot 122 on CP12, County of Porchester, Parish of Burke.’ The concept of ‘ownership’ in respect of this water and the bed and banks of the river is no different to the concept of ‘ownership’ dealt with above in relation to the inter-tidal zone, the sea bed, the subsoil below the sea bed and the waters above. The right claimed is a right to control both access to, and conduct in, the river.

154 The first respondent submitted that any right or interest held by the Gangalidda peoples at sovereignty in this part of their traditional territory has been extinguished by dealings with the land and waters post-sovereignty inconsistent with the maintenance of the claimed right. Further, it submitted that the claimed right was inconsistent with the public right to navigate in navigable rivers flowing into the sea and thus would not be recognised by the common law as a right which survived the assertion of sovereignty.

155 By notice dated 17 May 1865 published in the Queensland Government Gazette, it was notified that the Governor in Council had directed that a portion of land ‘shall be reserved for public purposes, and excluded from Pastoral Lease or License’. The reserve was entitled ‘Albert River Reserve, Unproclaimed District of Burke - Estimated area 125 square miles’ and described as commencing:

‘... at the coast two and a half miles on either side of the mouth of the River Albert, and continuing up from said points at an average distance of two and a half miles from both sides of the river until it meets the eastern boundary line of the Burke Town Reserve.’

156 As appears from the map (Annexure 3 to Ex 94), the river, including its bed and banks, was within the boundaries of the reserve.

157 By Order in Council dated 30 August 1928, the notice of 17 May 1865 relating to the Albert River Reserve was amended by deleting so much of it as related to the lands the subject of it and substituting as a Reserve for Public Purposes the land described as:

‘Commencing at high-water mark on the southern shore of the Gulf of Carpentaria at a point about two and a-half miles north-westerly from the mouth of the Albert River, and bounded thence by a line south-westerly to the north-east corner of Harrisdale Holding, by that holding and the Burketown Town Reserve south to the Albert River, by the left bank of that river downwards, and by the right bank of the Saltwater Arm thereof upwards to Armraynald Holding, by that holding north easterly and east to the Leichhardt River, by the left bank thereof downwards about 2 miles in a direct line, by a line and Moorboor Holding east and northerly to the Gulf of Carpentaria; and thence by high-water mark thereof north-westerly to the point of commencement.’

158 The area reserved then contained about 95 square miles and was described as R1 and R14, Parishes of Gaynor, Timor and Andiah, Counties of Porchester and Carpentaria, Burketown. The plan (Annexure 7 to Ex 94) shows that the river banks and bed were within the boundaries of the reserve.

159 In 1986, there were further dealings with the reserve and the size of the reserve was again reduced. The reserve is now described as the Albert River Reserve, being the land contained in Lot 1 on Crown Plan 884324.

160 The first respondent submitted that the original reservation for public purposes had the effect of extinguishing any exclusive rights in respect of the water, banks or bed of the river which may have previously existed under traditional laws acknowledged or traditional customs observed by the indigenous peoples who inhabited the area at sovereignty. In support of this submission, the first respondent relied upon the following statement of the majority in Ward:

‘[219]Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as “public utility”, the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.’

161 In my view, the submission is correct. For reasons that appear below, the same outcome was produced by the operation of the common law with respect to the Crown prerogative in relation to the foreshore and the banks and beds of navigable rivers. It was also produced by the operation of the Harbour Boards Act 1892 (Qld) and the Harbours Act 1955 (Qld).

162 That part of the Albert River which is the subject of the claim is a navigable river and I so find. It falls within the boundaries of the Port of Burketown which was proclaimed on 10 December 1892 under the Harbour Boards Act 1892. The extent of the port was ‘The Albert River from the head of navigation to the three fathom contour off the entrance, including all rivers, creeks and navigable waters within that area.’: Queensland Government Gazette 17 December 1892 at pp 1183 - 1184. For reasons which are set out later (at pars [221] - [225] inclusive), at sovereignty the full beneficial title to the river bed and banks of the Albert River was vested in the Crown by virtue of the Crown prerogative: see McNeil ‘Common Law Aboriginal Title’ (1989) Clarendon Press at pp 103 - 104. That Crown prerogative was preserved and brought into statutory effect in the Harbour Boards Act 1892 (s 6) and the Harbours Act 1955. The right to control access to the waters of the Albert River, its bed and banks and to control the use of such elements, or to control of activities in its waters, is totally inconsistent with the estate and interest held by the Crown in respect of the bed and banks of the river. The claimed right is also inconsistent with the statutory enactments which affirm the interests of the Crown in the bed and banks of the river and provide statutory provisions for the control of activities in the river. Further, as a navigable river, it is an area where the public retains the common law public right to fish and navigate. It thus falls within the reasoning in Yarmirr and Ward which denies the continued existence of a right to control access or use within such an area after sovereignty.

163 Notwithstanding the above conclusion with respect to the claim of ‘ownership’ of the bed and banks of the Albert River, there remains the question whether the use of the waters of the Albert River, including its banks and bed according to traditional laws and customs was inconsistent with the assertion of sovereignty executive action or legislative enactment: Ward at [219].

rights and interests in the claim area which survived sovereignty

164 As explained in the recent decisions of the High Court, it is the intersection of the traditional laws and customs at the time of sovereignty, and the laws of the sovereign applied by the assertion of sovereignty, which s 223(1) of the Act requires to be considered to determine whether or not there is such an inconsistency that the traditional rights and interests will not be recognised by the common law of Australia. Control of access to the land and waters of the inter-tidal zone and the territorial seas with the right of exclusion, albeit a traditional right or custom acknowledged and observed at sovereignty, will not be recognised by the common law of Australia: Yarmirr at [99] - [100]; Ward at [388]. Nor will it be recognised by attempting to admit of an exception in favour of the traditional rights of navigation and fishing given by the common law to the public at large. Such an attempt was made on the hearing of the appeal in Yarmirr in the High Court. It was rejected by the majority in their joint judgment for the following reasons:

‘[97] Much of the debate on this aspect of the matter proceeded by reference to the metaphor of “fractur[ing] a skeletal principle of our legal system” used by Brennan J in Mabo (No 2) ((1992) 175 CLR 1 at 43). The use of the metaphor cannot, however, be allowed to obscure the underlying principles that are in issue. There are obvious dangers in attempting to argue from the several elements of the metaphor to an understanding of the principles that lead to the result that is expressed by the metaphor. It is, therefore, not profitable to stay to consider what principles of the legal system are, or are not, part of its “skeleton”. Rather, attention must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles.

[98] When that is done in the present case, it is seen that there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.

[99] The successive assertions of sovereignty over what now are territorial waters, without any further or other act of the executive or legislature, brought with them, and gave to the public, the public rights that have been mentioned. The assertion of sovereignty in 1824, over part of those waters, may have conceded the right of innocent passage to all vessels over those waters, and later assertions of sovereignty over other parts of the waters certainly did. Assertion of sovereignty, on those terms, is not consistent with the continuation of a right in the holders of a native title to the area for those holders to say who may enter the area.

[100] Although the inconsistency does not arise as a result of the exercise of sovereign power (as is the case where a grant in fee simple extinguishes native title (Fejo v Northern Territory (1998) 195 CLR 96 at 128 - 129 [47] - [48]) the inconsistency which exists in this case between the asserted native title right sand the assertion of sovereignty is of no different quality. At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.’

165 The right to control access generally within these areas of sea Country, as asserted by the sovereign, related to people and activities generally, and not simply control of access in favour of the public engaged in navigation or fishing. In Yarmirr, Kirby J (at [278] - [279]) was prepared to acknowledge the possibility of a limited exception of the type contended for in Yarmirr on appeal and again in Ward on appeal in the High Court, and before me in these proceedings. The other members of the High Court in Yarmirr (McHugh and Callinan JJ), for different reasons, would not recognise the ability of s 223(1) of the Act to operate in respect of the land and waters in the claim area.

166 The position with respect to the inter-tidal area is no different, as appears in the following reasoning from the joint judgment in Ward (Gleeson CJ, Gaudron, Gummow and Hayne JJ):

‘[388]If the evidence otherwise established that the claimants had, under traditional law and custom, an exclusive right to fish in tidal waters, that exclusivity has been extinguished. As has been explained in the joint reasons in The Commonwealth v Yarmirr ((2001) 75 ALJR 1582 at 1604 [96]-[98]; 184 ALR 113 at 144 - 145) there is a fundamental inconsistency between a native title right and interest said to amount to a right to occupy, use and enjoy waters to the exclusion of all others or a right to possess those waters to the exclusion of all others and public rights of navigation over and fishing in those waters. Likewise, there is a fundamental inconsistency between the public right to fish in tidal waters and a native title right and interest said to amount to an exclusive right to fish those waters.’

167 See also Kirby J at [594] and Callinan J at [880], with whom McHugh J agreed at [472] on this issue.

168 The present forms of the draft determination contended for by the applicants recognise the impact which the decisions of the High Court in Yarmirr and Ward have had on their claim to native title as originally made. However upon analysis, the underlying core claim to control access to and activity in the claim area is still maintained.

169 Any right expressed in terms of ‘possession’, ‘occupation’, ‘use’ and ‘enjoyment’ to the land and waters, other than on an exclusive basis, invites attention to the common law concepts of such terms when applied to land or waters. It immediately gives rise to conceptual difficulties because the concept of possession ‘involves notions of control of access’ (Ward at [89]; see also [477] - [478]). So too the use of the term ‘occupation’ raises its own difficulties because legal possession is not the same as occupation. As was said by Lord Denning in delivering the opinion of the Privy Council in Newcastle City Council v Royal Newcastle Hospital [1959] AC 248 (on appeal from the High Court of Australia ((1956) 96 CLR 493) (at 255)):

‘... Occupation is a matter of fact and only exists where there is sufficient measure of control to prevent strangers from interfering, see Pollock and Wright on Possession in the Common Law, pp. 12, 13. There must be something actually done on the land, not necessarily on the whole, but on part in respect of the whole.’

170 The use of the common law concept of occupation immediately brings into question the ability of the original peoples at and before sovereignty to control the areas claimed ‘as far as the eye can see’ and raises the factual question: what activity did these persons engage in on the land and waters with respect to the claim area as a whole?

171 The decisions in Yarmirr and Ward denied the continued existence of any notion of a right to control access to, or conduct in, the claim area by persons other than the applicant group. In consequence, to talk of, or to attempt to articulate the relevant native title rights and interests which existed at sovereignty in terms of possession or occupation, or variants of them, is not a useful exercise. Nor is it useful to attempt to state native title rights as existing in a broad and expansive way, subject to the common law rights of fishing and navigation, or the recognised international right of free passage.

172 The right of non-exclusive possession, occupation, use and enjoyment of the waters and land (par 3.1 of the draft determination); the non-exclusive right to occupy, use and enjoy the waters and land (par 3.2); or an interest in maintaining the land and waters of the determination area free from intrusion, interference and affection inconsistent with spiritual connection and responsibility for the lands and waters (the alternative par 3.1); beg the question: what is the content of this non-exclusive right or interest if it has no element of control of access or control of use and activity within the claim area? What are the residual rights and interests which do not involve elements of control of access to and use of the claim area?

173 The Act requires that the relationship between a community or group of Aboriginal people and the land is to be expressed in terms of rights or interests in relation to that land. This means that a relationship which is essentially religious or spiritual, must be translated into law. ‘This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.’: Ward at [14].

174 This task is difficult and at times incapable of being translated into law - so much is obvious from the reply of Mr Parsons SC to my enquiry as to the rights or interests which exist in respect of Dreaming tracks and spiritual places in areas of the claimed seas incapable of demarcation other than in the most general of terms. In citing the submissions, I intend no criticism of Mr Parsons; his response is merely to describe the relationship between these people and their sea Country. It is a relationship which, at sovereignty, was one of sustenance and religious and spiritual belonging. It was a unity of land, sea and person. It was a unity which was maintainable because there existed a right to control access to, and use of and activities in, the land and waters so as not to fragment the unity. Mr Parsons said:

‘Your Honour also asked yesterday about dreaming tracks and the spirits returning to the seas. Your Honour, the deceased people issue is dealt with in our submissions at paragraphs 6.91 and 6.92, and the dreaming tracks issue is at 6.87 and 6.88. But I’ll also refer your Honour on that to Dr Trigger at pages 10 to 11, and Dr Memmott at page 57, because in a sense it really is perhaps useful to observe. It flows on from, really, with respect, what - the question of continuity. The reality is, of course, that the deceased people - the deceased Kaiadilt People remain in those seas.

The belief about the people in the seas - when you’re on the seas, that is where your dead relations are. That’s where they’ve gone. They invest that whole area of sea country. And, of course, it’s a similar belief for the Ganggalida: that the spirits of the deceased are in the ocean, are in the sea. And, of course, in the same way that the dreaming tracks are, and of course they’re described more particularly in those expert reports, but the point is it’s a presence. And, of course, the real measure of the presence is this: you know when you’re on the sea that if you breach the rules - the rules and the laws and the customs of your particular group - then of course you’re being watched.

You’re being watched by the spirits of the deceased. You’re being watched by those particular travelling ancestors. And, of course, the censures will be applied. The reality is that it’s simply a living area of country; it’s a living area of sea country. And, of course, when one tries - as impossible as it might be - to put oneself in the mind of Big Jake as he’s out on his bit of sea, or Roxanne, or Murrandoo, or whomever it was, the reality is in your world that’s in a sense - I suppose in two senses. One is in a way it’s a cemetery, but not in a macabre sense. But it is a spiritual place.

But equally it’s your back yard. I mean, it’s the back garden. And you can imagine Big Jake sitting up on his sand hill under the shade there, simply looking at his back garden and simply realising - I mean, it’s the sort of thing that - really when one thinks of it in those terms - that this is the major source of your sustenance. And, of course, he sees not only sea and a source of produce, but he sees the world of spirits; the worlds of his - I think a spotted stingray is his - the Bujimala, I think, it’s - I can’t remember what the spotted stingray is.

But he sees a different world. He sees a spiritual world and one which really - I would do a horrible injustice to try and recapture it now, but of course when one starts from Professor Stanner’s understanding of the dreaming and Dr Memmott is trying to grapple with that, and then translating that into all the spiritual aspects of their world which are extant. Of course, that’s there; that’s in the sea. ...’

175 I quote Mr Parsons’ response to highlight that when the unity of the relationship between indigenous people and the land and waters is fragmented, and the rights to control access to, and use of and activities in the land and waters are excluded, little may remain which is capable of being translated into rights and interests in relation to that land and waters capable of recognition and protection under the Act. What is left may amount to little more than non-exclusive rights to engage in specified activities in relation to the land and waters. Because the content of those rights or interests was fixed at sovereignty, no subsequent enlargement of these rights will be recognised under the Act: Yorta Yorta at [43 - 44].

176 The difficulties with pars 3.1 and 3.2 of the draft determination proposed by the applicants are not overcome by the proposed alternative clauses 3.1 and 3.2.

177 As expressed, the alternative par 3.1 is an emotional, as opposed to a practical, interest to exclude from the claim area anyone or anything which was inconsistent with the spiritual connection and responsibility for the land and waters. The right which I find existed at the time of sovereignty, which went with the duties in relation to and the responsibility for the land and waters, was the right to control access to, use of, and activities in parts of the claim area. There was no other ‘interest’ in the matters articulated in the alternative par 3.1 which was separate or apart from the right to control access, use, or activities in parts of the claim area.

178 The alternative par 3.2 does not relate to a traditional right or interest under the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of the claim area in relation to the lands or waters claimed, as required by s 223(1) of the Act. The paragraph relates to a right of acknowledgment of the status of ‘native title holders for the determination area’, but the content and extent of native title interests held are not identified. Further, it purports to be a right to present day acknowledgement by persons who are indigenous persons bound by traditional laws and customs; or persons who require a consent from some unspecified authority to enter upon or use the land and waters of the determination area; or persons who propose to do a ‘future act’ as provided for under Div 3 Pt 2 and defined in Div 2 Pt 15 of the Act. In terms, this was not a right or interest which existed at or survived sovereignty.

179 The difficulties which confront the alternative par 3.1 of the applicant’s draft determination also confront par 3.3. That those who inhabited the islands and the coastal part of the mainland within the claim area at sovereignty had access to seas that were free from the marine pollution that blights the oceans today, did not translate into a right or interest in relation to the land and waters at that time. It was merely a circumstance of the time in which they lived. The right or interest which they had at that time to control the amenity of the land and waters in the claim area, was the right to control access to, use of, and activities in, that area by members and non-members of the applicant group. That right did not survive sovereignty.

180 The land part of Country, together with the sea Country of those inhabiting the various Countries in each of the four traditional territories, sustained those persons physically and spiritually. The evidence establishes that the rights to harvest the land and the living resources of the sea Country were constrained by an obligation to husband those resources by taking only that which was sufficient to satisfy immediate needs. This is reflected in the evidence of Kenneth Jacobs, that one took only such fish as were needed and did not waste resources by taking more fish than could be eaten; also in the evidence of Robyrta Felton, that the present complaint is that the fishery was being depleted by people taking substantial quantities of fish and crab beyond their immediate needs and storing them in refrigerators, a post-sovereignty innovation. In order to harvest the land and living resources, the original Lardil peoples, the original Yangkaal peoples, the original Kaiadilt peoples and the original Gangalidda peoples had the right, in accordance with the traditional laws acknowledged by them and the traditional customs observed by them, to access the waters adjacent to the Countries to which they belonged.

181 There was no evidence that it was part of the traditional laws and customs to harvest either the plant or living resources for organised trade or commercial exploitation. I find that the plant and living resources taken from the inter-tidal zone and adjacent seas were for the purpose of personal and domestic consumption by the original indigenous peoples and not for the purposes of trade.

182 The right to take the living resources of sea Country included the right to hunt and take turtle and dugong in accordance with particular traditional laws and customs. Those laws and customs gave rights in such sea creatures to some or all of the persons who belonged to and inhabited the Country in which the turtle or dugong was caught.

183 There is no evidence that at the time of sovereignty any of the original Lardil peoples, the original Yangkaal peoples, the original Kaiadilt peoples or the original Gangalidda peoples took soil, shell, clay, sand, gravel or rock from the inter-tidal zones or the sea bed below the low water mark by virtue of any traditional law acknowledged or custom observed by them in relation to the land or waters. There is evidence of rock fishtraps in the inter-tidal zones, and it may be inferred that the rock and materials used in their construction or repair came from the immediate vicinity of them. There is also some evidence in the observations of Matthew Flinders at Sweers Island in 1802 that seashells were used to hold water when rafts were used. Such evidence of use as exists is as consistent with the incidental use for immediate daily needs of available materials as with there being a right or interest under traditional laws and customs to take such materials for such use. I am satisfied that the taking of white ochre or clay from particular sacred locations for ritual purposes was a right acknowledged by traditional laws and customs, however the evidence does not establish to my satisfaction that the Mundoowa site is in the inter-tidal zone below the high water mark and thus in the claim area.

184 I am satisfied that fresh water springs within the inter-tidal zone capable of being accessed by the indigenous peoples at the time of sovereignty were used by those persons as a source of drinking water. The evidence is that each of those groups lived on the coastal fringe of the land adjacent to the inter-tidal zone. It is self-evident that their need for fresh water would be satisfied from those resources. There is some evidence that, so far as the Kaiadilt peoples are concerned, access to and the taking of the water from such fresh water springs was by rights under traditional laws and customs (see the evidence of Robert Carruthers and Netta Loogatha). Generally the taking of such water was for consumption and, I infer, an incident of the rights held by persons who belonged to the Country and who inhabited it at the time of sovereignty.

185 I am satisfied that the indigenous peoples in each of the traditional territories at the time of sovereignty had rights pursuant to and governed by traditional laws and customs to have access to sites of spiritual or religious significance in the land and waters of the claim area, the location of which were known and which were then accessible to them, for the purposes of ritual or ceremony. I am also satisfied that at that time there existed a right to maintain and protect those sites which were otherwise accessible by controlling the access to such sites and the activities engaged in there. To the extent that the right to control access did not survive sovereignty, the rights with respect to spiritual sites within the inter-tidal zone and the adjacent seas, were to that extent diminished by the assertion of sovereignty.

186 The evidence does not establish a general right to construct structures in the inter-tidal zone or the adjacent seas. Nor does the evidence show that any structures other than fishtraps were in fact constructed in that area. The evidence establishes that at various locations there were fishtraps naturally formed by the rock structures or manmade structures, and that such structures were repaired and maintained. As the predecessors of the applicants were hunter/fishers, these patterns of living did not involve a use for any structures in the inter-tidal zone and adjacent seas beyond the fishtraps of which there was evidence.

187 The right to take fish from the traps and the right to repair and maintain the traps were recognised by traditional laws and customs and were rights recognised as being possessed, or capable of possession, by individuals or groups of individuals.

188 Each of the formulations of the rights claimed in pars 3.8, 3.9 and 3.10 of the applicant’s draft determination involves an attempt to control access to and use of the land and waters in the claim area other than access or use by persons claiming to exercise the common law right to fish and navigate in those waters; claiming to exercise the right of innocent passage through those waters; or claiming to exercise a statutory right to do so. Those rights to control access etc did not survive sovereignty and this formulation to avoid the consequences of the exercise of sovereignty was rejected by the High Court in Yarmirr and Ward.

189 The assertion of sovereignty, which included the common law public rights of navigation and fishing as well as the right of innocent passage, was the assertion of rights which were fundamentally inconsistent with any asserted native title rights to control who had access to the inter-tidal zone and adjacent seas. As their Honours said in Yarmirr:

‘[100]... At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.’

190 The formulation of the residual rights in pars 3.8, 3.9 and 3.10 attempts to maintain the continued existence of exclusive rights in some form or other to grant or refuse access to the land and waters of the claim area, to grant or refuse permission to use such land and waters or to take or use the ‘resources’ (whatever that term may include beyond the taking of resources of the types identified in the evidence) of such land and waters. Such residual exclusive rights, to the extent that they existed at sovereignty, did not survive the original and any subsequent assertions of sovereignty with respect to the inter-tidal zones and/or the territory seas.

191 The right claimed in par 3.11 ‘to protect the resources of the waters and land by taking steps to prevent acts which are not consistent with the reasonable exercise of public or statutory rights and which may cause damage, spoliation or destruction of the habitat of fish, plants or animals in or on the waters or land’ essentially faces the same problems as the claimed right to enjoy the amenity of the determination area claimed under par 3.3, which I have dealt with above. A further problem is that the claimed right to control the exercise of the public rights to fish and navigate and the international right of innocent free passage is inconsistent with the existence of those rights and the content of them. The content of the public right to fish was considered by Mansfield J in Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 at [48] - [51], [64], [87] - [92]. The content of the right revealed by that consideration was summarised by Callinan J in Risk v Northern Territory (2000) 210 CLR 392:

‘[127]It is also important to bear in mind that the Act was enacted against the background of existing public rights, including of fishing and navigation, being public rights which qualify the Crown’s rights in respect of the seabed and the space above it. (Commonwealth v Yarmirr 184 ALR 113) Necessarily, a right of fishing may involve not only the fishing of the seas, but also the use of the seabed, by standing on it, or anchoring in it to fish, placing nets in, below and on it, and the taking of some forms of sedentary aquatic life (not so attached to be considered a permanent part of the solum) from it. (cf Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 at 14–15 [48]–[51], 16 [64], 22–3 [87]–[92] per Mansfield J).’

192 The nature of the public right to navigate in tidal waters and in the high seas was described by Beaumont and von Doussa JJ in the Full Court of this Court in Commonwealth of Australia v Yarmirr (2000) 101 FCR 171:

‘[213]The common law principles which uphold a right in the public to navigate in tidal waters and in the high seas constitute another important contextual factor when considering the specific native title claim made here.

[214] In the British Columbia case, Viscount Haldane said (at 169):

“ … the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed, it did not in fact first take rise in them. The right into which this practice has crystallised resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity the Crown as parens patriæ doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right as legally cognisable are probably attributable to that protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the Courts.

[215] In the SSLA case, Stephen J (at 421) noted that “the Crown’s ownership of the foreshore, whilst proprietary, is subject to public right of navigation and of fishing”.

[216] In this connection, Olney J said (at 593):

“The common law … recognises a public right of navigation which has been described as a right to pass and repass over the water and includes a right of anchorage, mooring and grounding where necessary in the ordinary course of navigation: Halsbury’s Laws of England, 4th ed, 1977, vol 18, para 604. This right evolved before Magna Carta and is therefore a right distinct in its origin from the right of innocent passage in international law.”

[217] We agree. Thus, in Gann v Whistable Free Fishers (1865) 11 HLC 192; 11 ER 1305, it was held that the grant of an oyster bed in an arm of the sea below low water mark was presumed to have been made before Magna Carta, but was nonetheless subject to the public right of navigation, as that public right also pre-dated Magna Carta. As that public right included the right to anchor, no toll could be charged by the owner of the oyster bed upon ships anchoring there. Lord Westbury LC said (at 209; 1312):

“Anterior to Magna Carta, by which such grants [of several or exclusive fishery] were prohibited, a several fishery in an arm of the sea or navigable river, might have been granted by the Crown to a subject. The present fishery of the respondents must be taken to have been so granted. And the grant might include a portion of the soil for the purpose of the fishery. But this, like every other grant, whenever made must have been subject to the public right of navigation …”

[218] Likewise, in Lord Fitzhardinge v Purcell, after holding that the bed of the sea, “so far as it is vested in the Crown, and a fortiori the beds of tidal navigable rivers can be granted by the Crown to the subject”, Parker J said (at 167) that:

“It is true that no grant by the Crown of part of the bed of the sea or the bed of a tidal navigable river can or ever could operate to extinguish or curtail the public right of navigation and rights ancillary thereto, except possibly in connection with such rights as anchorage when there is some consideration moving from the grantee to the public. It is also true that no such grant can, since Magna Charta, [sic] operate to the detriment of the public right of fishing.”’

193 The existence of a native title right to prevent the exercise of those rights on the ground that the exercise of them may cause damage, spoliation or destruction of the habitat of fish, plants or animals in or on the waters or land in the claim area, and was therefore an unreasonable and impermissible user is, in my view, inconsistent with the assertion of sovereignty. The content and control of the exercise of those rights given by the common law at the time of sovereignty thereafter fell to be determined in accordance with the common law and not in accordance with traditional laws and customs. The common law public rights were the product of a different legal system introduced into the claim area at the time of sovereignty. There is not, and never was, any native title right to control the exercise of such public rights imported with the common law at the time of sovereignty.

194 In respect of the original Lardil people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Lardil peoples, and that such rights survived the assertion of sovereignty:

1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.

2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zone and the waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.

3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.

4. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Lardil peoples for the purposes of ritual or ceremony.

5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.

195 In respect of the original Yangkaal people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged, and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Yangkaal peoples, and that such rights survived the assertion of sovereignty:

1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.

2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zones and the waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.

3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.

4. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Yangkaal peoples for the purposes of ritual or ceremony.

5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.

196 In respect of the original Kaiadilt people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Kaiadilt peoples, and that such rights survived the assertion of sovereignty:

1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.

2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zones and the waters above and adjacent thereto, for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.

3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.

4. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Kaiadilt peoples for the purposes of ritual or ceremony.

5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.

197 In respect of the original Gangalidda people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged, and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Gangalidda peoples, and that such rights survived the assertion of sovereignty:

1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.

3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.

4. The right to access the land and waters seaward of the high water mark, and so much of the waters of the Albert River as fall within the claim area, in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Gangalidda peoples for the purposes of ritual or ceremony.

5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.

6. The right to access so much of the waters of the Albert River as fall within the claim area for the purpose of hunting, fishing and foraging for living and plant resources for personal, domestic or non-commercial consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.

198 A major part of the material filed, and of the examination and cross-examination of witnesses, was directed to the issue of whether or not there existed at the time of sovereignty a ‘permission’ system. That is, whether the original Lardil, the original Yangkaal, the original Kaiadilt and the original Gangalidda peoples had the right to control access to the land and waters of their respective traditional territories, and if so, whether that right continued to be acknowledged and observed by their successors up to the present time. In the view that I take that such a right did not survive sovereignty, it is unnecessary to make detailed findings as to the continued observance of it up to the present time. The remaining issue is whether such rights and interests in relation to the land and waters of the claim area, as I have found existed at sovereignty, continue to be possessed under traditional laws acknowledged and customs observed respectively by each of the Lardil peoples, the Yangkaal peoples, the Kaiadilt peoples and the Gangalidda peoples.

199 European contact with each of the constitute groups has, to a greater or lesser extent, brought about the physical dislocation of the applicant group from their traditional territories in that the majority of people who constitute the applicant group do not live on the Country to which they belong, and do not live a traditional lifestyle anywhere approaching that which existed at the time of sovereignty. The Lardil peoples and the Yangkaal peoples continue to have the closest physical connection to Country because the siting of the mission in Gunana on Mornington Island kept the Lardil and Yangkaal peoples in, or with access to, their traditional territories. The Kaiadilt peoples’ physical connection with their traditional territory was severed when they were moved to Mornington Island in the mid-1940s. The Gangalidda peoples were physically isolated from their traditional territory by the granting of their traditional lands to pastoral interests and further as a result of the relocation of the mission from Old Doomadgee to new Doomadgee in 1936. The prohibition of travel by the indigenous peoples outside of the reserves managed by the missions also isolated the people from their Countries. I also find that during this period their native languages were lost by the majority of the members of the applicant group.

200 Notwithstanding such pressures, I am satisfied that none of the groups lost their identity or existence as a society. That is, none of the groups presently claiming for a determination is a new society, created or arising after sovereignty, seeking to adopt the traditional laws and customs of a former society, which has ceased to exist, as was the case in Yorta Yorta. Whether on Mornington Island or at Doomadgee, there were respectively core communities of Lardil, Yangkaal, Kaiadilt and Gangalidda peoples. The dormitory system trained up young men for the pastoral industry and young women for domestic service away from their traditional territories. Despite this relocation of trained men and women, some of that generation, upon retirement, returned to their traditional territories. During their time as stockman on Escott and the neighbouring pastoral properties, a number of the witnesses had the opportunity to visit the Country to which they belonged and in fact did so. The dormitories on Mornington Island closed in 1953.

201 At the commencement of the mission period on Mornington Island the communities continued to live on their Countries, with the children living in the dormitories as they were built having access to their parents and extended family and Country during holiday periods and other times. However, that changed over time. The change was neither sudden nor dynamic and during the war years the mission was not operated. I accept the evidence of Dr Memmott in his report dealing with the rate of change during the mission period. The area near the mission at Gunana developed as a village and people moved in, adopting a village lifestyle around the administrative centre represented by the mission. With the end of the mission period, the situation did not alter and the development of the area as a township with a local authority and the usual infrastructure that goes with a township (a store, hospital, school, governmental services, roads, power, reticulated water, subdivided building blocks and residential accommodation) has continued the aggregation of people at and around Gunana as consumers of those services. The same congregation around an administrative hub is also demonstrable at Doomadgee. The fact that some people continued to live on Country in Lardil and Yangkaal territories and that a number of out-stations have been established from the 1980s onwards, does not alter the fact that the majority of the members of the applicant group now live in or near to the administrative centres on Mornington Island and Doomadgee.

202 Notwithstanding the shift to the administrative centres, there is a wealth of recorded anthropological materials which chronicle the applicant peoples from the 1930s to the present time. That material in essential respects, supports the expert evidence given in these proceedings by Drs Memmott, Evans and Trigger. The anthropological material and the expert reports satisfy me that each of the applicant groups has maintained, through successive generations from their forebears at sovereignty, a normative system of traditional laws which are acknowledged and customs which are observed, by which persons are allocated to a Country and rights are allocated to those persons in respect of that Country. All the indigenous witnesses called to give oral evidence knew what Country they belonged to and knew that it gave them the right to live there and hunt and fish on the land and within the seas of that Country. They also knew their genealogy and that genealogical relationships could create derivative rights in respect of Country to which they did not belong. They also were aware of systems of Dulmadaship which carried rights, particularly in relation to entitlements to parts of dugong and turtle caught within their sea Country. The continuity of that knowledge is recorded over time in the published anthropological material. That some have chosen to return and live on Country in the outstations, satisfies me that each of the communities acknowledge that the right to return to one’s Country, to visit it, to live there or to hunt and fish there, has never been lost or abandoned and has at all times remained an option to be exercised by those who have the right to do so.

203 With the present day availability of powered boats, particularly aluminium dinghies with outboard motors, access to sea Country for fishing and hunting is now more readily available than in times past. I accept the evidence of Dr Evans that seafood still constitutes a large part of the diet of indigenous people on Mornington Island, and more so in the diets of people living permanently in the outstations on Mornington and Bentinck Islands.

204 Dr Evans gave evidence as to the present continuity between the Kaiadilt peoples and the traditional rights and interests which I have found existed at the time of sovereignty. The contention put to Dr Evans in cross-examination was that the severance with the traditional territory of the Kaiadilt people had destroyed continuity between the past and the present conduct of the Kaiadilt peoples. Dr Evans said:

‘... So far as hunting and fishing and gathering in the traditional way - and this might be a too general proposition to say in a traditional way, but you will be able to respond. Are they more weekend activities or leisure time activities than day-to-day subsistence activities? --- I think there’s a different pattern when people are living on Bentinck Island to when they’re living on Mornington Island.

Can we deal first with Mornington and move on to Bentinck? --- Yes. So at Mornington people go out on weekends in boats, or, you know, they’ll take it - go to somewhere other than Gununa and, say, go fishing or whatever, or go out on a boat to get stuff. During the week - I mean, most people have some form of employment that commits them to, if not a 9 to 5, but you know, some regular daily regime, and when they knock off - I mean, there are some people who, you know, are keen and who might go out and spear fish, for example, or gather things. But others, for the reasons I was mentioning to do with alcoholism, wouldn’t do that now. They’d go to the pub. If we go to Bentinck Island now, you’ve got people working the CDEP Program, say, you know, involved in building a road, or something like that. Again, it commits them to the use of their time for that purpose during the day, during the week. But there are other people living on the island - for example, there’s women of various ages; sometimes in the grandmother age group, sometimes in the sort of older mother age group, sometimes younger women visiting. And often they will go off fishing, getting stuff out of fishtraps - I mean, not fully built fishtraps that are in that area - gathering shells and various things of that type. And then when the men get time off, which might mean after work or more typically on weekends, they’ll go in the boat, typically dugong and turtle hunting and it’s the sort of big thing to do to go out and get that. People do that pretty frequently. I mean, if you were a man - I mean, someone like Clayton or - Clayton Paul or Rodney Naranatjil, people we’ve seen as witnesses, I mean that’s what gives you stature in the community as a man, and you go out hunting typically once, twice a week, I would say. I think people go out hunting for big animals and that, dugong and turtle, more often than they would have in traditional times because you can go out in a boat obviously. And we’ve talked about how often people would go out in walbus, and I said that it was regular in some sense but not all that frequent. I think now people go out more just because it’s easier; you can go out further, and you bring in dugong and turtle. If you’re asking about people’s diets, you know, I mean people obviously get a lot of stuff from the store. And it’s an interesting thing that if you look at the traditional diet from a nutritionist’s point of view, you’ve got as much protein as you want, very easily, you know: you’ve got fish, you’ve got turtle, you’ve dugong, shellfish, it’s all there for the gathering. If you want carbohydrate in your diet which you want for - and I should say, if you want fat you’ve got as much fat as you want from turtle and dugong, not so much from fish. If you want carbohydrate, the traditional availability of that in the South Wellesley and even the North Mornington area is pretty limited. You’ve got these tiny little yams. You’ve got some roots, things that are basically, you know, like that; long, thin roots. You’ve got berries in particular seasons. But it’s not enough to fulfil the carbohydrate part of your diet very easily. And I think, again, if you look through Tindale’s records, looking at the causes of death, it sounds like there was a lot of abdominal problems. I would guess that an unbalanced diet that was skewed towards protein rather than carbohydrate and roughage may have been a factor in that. So when people go to the shop, obviously there’s been a change in people’s diets. And getting flour, also getting sugar, tea, tobacco and stuff, rice, is something which, in a way, has filled a gap that wasn’t filled in the traditional diet. And on Bentinck Island people didn’t even have honey. I mean, you just didn’t ever taste anything sweet, except for some fruits. When it comes so - you might see someone coming back from the shop having spent their fortnight’s earnings, and to the extent that it includes the things I named, that’s not substituting for part of the traditional diet. Now, on top of that there’s the question, you know, how far do people get meat down the shop - - -

Down the store? --- - - - you know, buy steak, buy these other things. People buy them, obviously, and it depends very much on the weekly round. I would say that a typical thing is that on most days during the week, you either get something from the sea out of your fridge, if you are lucky enough to have a bit of frozen fish, or a bit of left-over dugong meat in your fridge, or, if you don’t have that, you eat something from the shop. Maybe you’ve bought some steaks or lamb chops, or whatever, from the butcher. When the week-end comes, you go out hunting. You get fish, both for that day, and to an extent, for other days in the week, so there is that mix. On Bentinck, there is a greater proportion of the diet that comes from the sea, and there is a big freezer there, but it is pretty dodgy. I mean, it will be on for three days, off for three days. You wouldn’t really want to take your chances much on the frozen meat that you get out of the tiny little store on Bentinck Island. So people go over to Tex Battle’s resort and sometimes buy things there, but almost always people are eating what they take out of the sea in the protein domain on Bentinck, but they do have a store selling flour, rice, tea, and, of course, you don’t need a freezer for that, so it is easy to get. So it is that sort of balance I would say was typical now.

All right. This is probably going to ask you to respond - and I suspect your answer might be it is a question of degree, but your report - you know, the quote from Tindale which describes the Kaiadilt as a strand dwellers; page 12 of your report. Is it no longer - it is not accurate any more to apply the Tindale description as to how people live. They don’t live that sort of traditional life any more. It is affected by the considerations to which you’ve already adverted, namely, having to do a sort of a job to some extent and being able to do these sort of activities in the time frame that you’ve already described? --- Well, I mean, maybe it would be an interesting exercise for us to go through this paragraph and look at each activity and talk - if you don’t mind - - -

No, I’m happy to do it? --- - - - because it will make it more concrete. So if we say “women’s work is tied closely to the actic zone. At low tide they gather tjilangind (small rock oysters).” Well, that is still very common. And say a woman like Dawn Naranatjil, for example, who we saw in court. I mean, that would be a typical thing that she would do; go and get oysters, bring them back in a billy can, and that is something people eat. Cockles. Again, the same sort of thing. Denizens of mud holes and rock pools, and so on. Well, of course, people don’t really have camps under the sheoak trees now, although when I - in the early ‘90s, before the outstation was properly established, before there were buildings, people were sleeping exactly there, under the casuarina trees when I went over in the ‘80s; that is what people were doing. Now they’ve got houses, they are sleeping in houses.

But it concentrated in the areas you’ve described? --- Yes.

“Or to inland areas of land to dig for roots.” I don’t think that is happening as much. For some of the reasons I mentioned - and you will see he puts the word “edible” in inverted commas, which is probably an appropriate comment - - -

There is better ways to get carbohydrate? --- Yes, yes. “Vines” - I mean, people do still get some things - bush berries, and occasionally roots, but grasshoppers - people don’t eat those any more, as far as I know. “..glean a few varieties of seeds and fruits” yes, still happening. Then is talking about other activities which aren’t food oriented, so we’ll skip those. But actually people - of course they get wood for fire. “..dry grass for camps” - I would say when people are camping out, when they’re at a place where there is not an outstation built, you make a very traditional shelter on the beach. Make a wind break rolling up a vine that Kaiadilt People call Timothy vine in English, so up to about this height around it, you move it according to where the prevailing winds are coming from, and you have a fire inside that and sleep around that. So people use that when they’re away from the main built up outstation, but not every day. “Plant fibres for ropes and string” still happens a lot, and people still use that. I mean, of course, people use other types of ropes and string now. If men make either a three-pronged metal spear, or a harpoon, they’ll use fishing line to tie it, but women still make those traditional bags and sell them to the craft shop. So going on. Well, we know people aren’t using rafts of logs any more. Spearing fish: again that is a very common thing. In terms of cultural continuity, what has happened is that people now use a different sort of spear. They use a three-pronged spear made where you get three pieces of metal and file them down to a point and bind them around with fishing line. It is not traditional, but it is also not European either. It is a modern Aboriginal adaptation of an older style of spear where the points were made of carved hardwood. Yes, people still do that. I mean, they stand out on sandbanks, and what sometimes people refer to as roads. Big fish - quite big fish come up in the channels between the sandbanks, and people stand there and spear those, and it is a common thing for men to do after hours, and on Bentinck, people - younger men will still do that after work. “... in the hope of spearing a dugong, a turtle, or a shark” well - - -

What about stone fish traps? They’re not used any more, are they? --- They still have a function in terms of - they are a bit run down, literally, and dilapidated, but people talk about rebuilding them and have started on rebuilding a couple of them, but they’re not really - from a functional point of view, needed any more, because the traditional Kaiadilt way of catching fish - the Kaiadilt people didn’t have fish hooks traditionally. So you had a line which you made from grass and then you tied a little bit of bait to the end of the line, threw it in, and then you gradually drew it towards you and the fish would sort of follow, but you didn’t hook it into their mouth, and then you would spear it. You can imagine that fish traps are more useful in catching fish when you have that sort of line technology than when you have fish hooks. Now people have fish hooks. Fish traps, you know, they’re good in basically getting fish into an area where you can catch them easily. They’re not so important, but people do talk about rebuilding them. I’m not sure whether it will happen or not. Anyway, most of that “spearing of fish by men” I mean, people either wait around in the shallows or go out on to sand banks to do that. “Dugongs and turtles”, people do it more using boats now, going out for them. So “women’s work to repair the fish trap walls” well, they don’t have to do that so much now. And “taking the small fry among the fish trapped when the traps are almost dry.” Well, I would say now people are doing that with lines most of the time and sometimes with nets as well.

Where do they do this? I mean, do they fish in the fishtraps or do they fish just off the sandbanks? --- Off the beach but also in boats, offshore.

But the fishtraps don’t really have any functional purpose for the process of fishing or taking - - -? --- No.

- - - seafood from the sea, any more? --- No. I mean, they - every now and then, they are a good place to go look for fish because - I mean, the fishtraps haven’t just gone to nothing; they’re just not as high as they were. So, you might be lucky and see fish inside there. It happens from time to time. So, you might look around there but you’re not totally reliant on that any more, certainly for getting fish.’

205 The second respondent submitted that there were serious questions as to whether a system of ownership of Countries or estates survived the physical loss of control of the traditional Gangalidda territory caused by European contact. The submission was based primarily on the evidence of Bill Westmoreland. His evidence was that nobody was ‘boss’ of the Country known as Dumbara. He said no-one lived there and that no-one now owns the Country at Dumbara. He concluded his evidence in this way:

‘If you want to say something further, you say something? --- Nobody in that dulgarr, nothing. All that danggara been died.

DR TRIGGER: Nobody in that dulgarr, in that country? --- When white fella been take that country, well, they been take the country off the Aboriginal and black fella will say nothing more about it, you see.’

206 The evidence of Bill Westmoreland was put to Dr Trigger in cross-examination:

‘What I suggest is that is as telling and frank a relation of a story of real loss as one could want? --- Well, I suppose what I’d say is that he is - okay, he is saying the Aboriginal people once in occupation have died. Their descendants don’t live there any more. White fellows took the country off them. I don’t interpret these sorts of comments - those sorts of comments from one individual like this to be - to be indicative that my conclusions based on a whole body of, you know, other sorts of statements from other people in other settings are wrong. I think if you - I don’t - my honest opinion is I don’t think that Bill Westmoreland wants to say that there are no Ganggalida people with any connections down into that coast country. I mean, his relatives wouldn’t - he knows his relatives are not of that view. I don’t believe he is of that view. I can’t explain why these particular answers came in this way but I think the pressures of communication are significant.’

207 I am not prepared to hold, on the basis of that evidence alone, that the ‘ownership’ system of Countries in traditional Gangalidda territories had been lost to those peoples by the time of the trial. The Gangalidda people, as a society, did not cease to exist between sovereignty and the hearing of the application. The second respondent conceded that if there was an identifiable Gangalidda society at sovereignty, it continued to exist up to and in contemporary times. Further, Mr Westmoreland claimed that Dumbara is his Country by ‘my granny, my father, Old Man Daylight, Mother Bessie, my mother’s sister Norma, Lizzie, three sisters’, and stated he was the only boss of that Country alive. As Dr Trigger said during cross-examination, there are other Gangalidda people who claim to belong to Dumbara or to have rights in that Country; Wadjulabinna and June Gilbert both claim to be traditional owners of Dumbara from their mother and grandmother. What Mr Westmoreland meant depends on what he meant by ‘owned’ and this he was not asked. If he meant no more than no-one was presently on the land physically controlling what happened there, then what he said is totally consistent with the evidence of other Gangalidda people. Further, if he did mean that the people belonging to the Dumbara Country had died out, I am satisfied that under Gangalidda traditional laws and customs, which existed at sovereignty and continue today, that Country would be allocated to others or merged with other estates. It would not be left without custodians or peoples to whom it belonged and who were responsible for its well-being.

208 Although there are no longer ten separate estate groups or clans living along the coastal strip of Gangalidda territory, there are four out-stations which each have a community. These communities are often transitory, but still in touch. Despite the relocation of the community from Doomadgee and the passing of much of the coastal strip into private ownership, the Gangalidda peoples have continued contact with their lands, albeit in an erratic way. Like the Lardil, Yangkaal and Kaiadilt peoples, they have retained the knowledge of the local Countries; the identity of the people who belonged to them and the basis of their right to belong; the rights which go with Country; the stories, the Dreaming and the obligations, and within their community people continue to acknowledge the existence of these rights in themselves and others.

209 I am satisfied that each of the constituent communities continues to hold religious and spiritual beliefs which are based in the Dreamings, each of which includes the Rainbow Serpent myth and each of which has sacred places located on the land and in the waters of the claim area and Dreaming paths, which traverse those land and waters. However, for reasons stated above, I find that these beliefs translate only into a non-exclusive right to access sacred sites for the purpose of ritual and ceremony which sites are known and accessible in the inter-tidal zone and adjacent waters, including sandbars and reefs.

210 With two qualifications, I am satisfied that each of the constituent groups continues to possess the same rights and interests in respect of the land and waters, the subject of the claim for determination, under the traditional laws acknowledged and the customs observed by them, as were possessed by their forebears under the same traditional laws and customs at sovereignty.

211 The first qualification relates to the hunting of turtle and dugong. Hunting of these animals has continued throughout the recorded history of each of these peoples and it continues today. Although the right to do so is not inconsistent with the right of government to pass laws for the conservation and management of wildlife, the native title right is capable of regulation subject to s 211 of the Act: Yanner v Eaton (1999) 201 CLR 351 at [37].

212 The second qualification is in relation to fishtraps. There is scant evidence that the fishtraps which physically remain are maintained, repaired or used. Although there was some knowledge of whose Country it was where the fishtraps were found and who held the traditional rights to the fishtraps, the balance of the evidence supports a finding that the maintenance and use of fishtraps, as such, has fallen into disuse and any continuing use is merely fortuitous.

213 The position as to the fishtraps on Bentinck Island is dealt with in the evidence of Dr Evans set out above.

214 As to the fishtraps in Gangalidda territory, Dr Trigger said:

‘All right. Thank you. Now, fishtraps: you refer at page 114 of that article to fishtraps and you’ve referred to - elsewhere in some of your other documents that you’ve tendered - fishtraps and the like. In respect of the fishtraps within Ganggalida territory, are you aware of any of them having been used as a fishtrap, say, in the last 30 years? --- Well, as is shown on some of the photos that I think went in this morning during the early 80s and probably again in 1988 when I was down there with Richard Robbins, we visited the fishtraps and the Ganggalida people with us - oh, you know, collected crabs and oysters from the rock walls and speared some fish from within the traps at Bayley Point. The traps weren’t maintained in the sense of they required some - you know, there were holes in them and gaps in them and so on. People commented on that, and at that stage hadn’t been down there to maintain them in a - in a focused systematic way, but I’ve seen people using the traps in the sense of spearing stuff in them during those times.

Okay. All right, so that’s - but - I shouldn’t say but, but it’s in the context of people going there perhaps with you or perhaps on an odd occasion to go fishing or whatever and to throw the spear in or drop the line in as they would throw a spear in or drop a line in off the beach or anywhere else for that matter. In other words, there hasn’t been, as far as you’re aware, a concentrated use of the fishtrap in the same way that fishtraps used to be used perhaps 50 or 100 years ago? --- Well, the - the times that I can say I’ve seen people using the traps were obviously the times that I was there.

Yes. Well, I’m also alluding to people telling you - - -? --- Oh, well, people - - -

- - - also about times that they had used them? --- Well, people have talked to me about visiting the traps, especially at Point Parker on the mainland. They’re more easily - immediately easily accessible that Bayley Point. I think Michael Booth’s talked to me about that over the years. I wouldn’t want to say they’ve used - been using it in the last few decades in the fashion exactly as they were used prior to their displacement from the coast country, and so on, you know, with the whole history we know about.

Or being used on a regular basis? --- I guess I’m not - it depends on what we mean by regular. I’m not - I’d surmise that they’re not being used every week in the last 10 years, but I’m not in a good position to know quantitatively how often people have been, say, going to Point Parker and using the traps and looking for fish and crabs and oysters and things like that. I haven’t been there.’

215 As to fishtraps in Lardil territory, Dr Memmott said:

‘... Just by the way, in relation to rock wall fish traps, you, of course, were with the Court and the rest of us when we went on the site trip to the place whose name I’ve forgotten already, but with Kenneth Jacobs? --- Yes.

What was the name of that place? --- Wurrkajin.

Where we saw the fish trap? --- At Wurrkajin.

Wurrkajin. Thank you. He showed us the fishtrap there. Do you remember him saying at the time that that fishtrap hadn’t been used as a fishtrap for some time? --- I think he also said that they brought school children out there too, didn’t he?

I think he might have? --- And that they were building it up. My experience with - - -

Sorry. Just answer my question. Do you remember him saying at the time - - -? --- Yes, well, I think I heard him say all of those things, yes.

Yes. Did he not say, well, it hadn’t been used as a fishtrap for some 50 years? --- I think he meant as a total fishtrap, yes, but I think people do use it. All of those cavities under the rocks usually contain - they’re the habitat for mudcrabs, and there are also oysters growing on those rocks, and people go over and take mudcrabs and oysters out of those habitats.

And so no doubt people do use fishtraps in the same way as they use other places, such as rocks or ledges or caches? --- Yes.

Under which or on which oysters and the like might grow or crabs and lobsters might like to be? --- Yes.

There’s no material difference? --- I think what he meant was that there hasn’t been a total maintenance of all of the walls since that earlier period.

Yes, yes. And that observation that he made then, that’s consistent, isn’t it, with your understanding of other fishtraps on Mornington Island, that is, yes, they’re still there; people still talk about them; they will use them in the sense that you’ve described, that is, if there’s oysters on the rocks or crabs in the holes, well, they’ll get them, but that they haven’t been used as fishtraps as such for 50 or more years? --- Well, the Lardil people have never used fishtraps a lot.

Oh, right? --- You’ll find that there’s far more fishtraps in the Kaiadilt and Yangkaal territories.’

216 The evidence of the indigenous witnesses was also consistent with the conclusion that there is little, if any, use of the fishtraps.

217 In the written evidence of Roger Kelly, he said:

‘There are lots of fish traps on my country. I often find stingrays in them. You catch fish in fish traps in different ways. You can spear them. Often you use a bark torch at night time. The women would also chase the fish into the rocks where they would hide. The women would put their hands in and grab them. The cyclones break the fish traps. A lot of them need fresh rock. They are not so important now that people have nylon nets but we might start re-building them.’

218 In oral evidence, Robyrta Felton said:

‘... And I think in your affidavit, you also refer to the fact that you observed your father fishing in fish traps?---No, no. I observed them fishing but not in the fish traps. There are fish traps on the south side of Denham Island, and I asked him about the fish traps, and he said, oh, those fish traps were built long, long before he was born, and it’s - the fish traps are disintegrating now because of no maintenance, but there are corners that fish get trapped and he used to just - we used to just walk around there in the mud and spear the fish that’s trapped there.

Did you observe your father ever fish in the fish trap?---No. No, it’s too shallow in the fish trap for - and anyway, the rocks are right up, you can’t get a canoe in there.

I see?---Yes. You’d bump into - the canoe would bump into the rocks. It might be extremely high tide to get over the rocks.

Do you yourself use the fish traps these days?---No, although my son has said when he’s finished university he’ll come back and get all our mob to try and do restoration on them.’

219 Valerie Douglas in her evidence said:

‘... And you talk in your second statement about fish traps. Have you ever used a fish trap?---I haven’t used one, but I’ve seen some.’

220 The location of the rock fishtraps in the inter-tidal zone means that any rights of ‘ownership’ to the traps, as structures, and to the sea bed on which they occurred or were constructed, did not survive the assertion of sovereignty. They are in no different position from the inter-tidal zone in which they are placed. They fall within the decision in Ward.

221 If the right to ‘ownership’ of the fishtraps survived sovereignty, then it was not a right recognised by the common law. The common law recognised, in respect of the foreshores and beds of tidal rivers, a full beneficial title in the Crown in such lands by virtue of the Crown prerogative. The title of the Crown was presumed and any person claiming title to the foreshores or to the beds of tidal rivers had to prove a prior grant from the Crown: Yarmirr at [213] per McHugh J; McNeil ‘Common Law Aboriginal Title’ at pp 103 - 104; or adverse possession of the land against the Crown: Lord Advocate v Wemyss [1900] AC 48 (HL (Scot)) at 61, 68. The Crown title to the foreshore and the beds of tidal rivers was not a radical title but an absolute one.

222 The underlying common law position as to the Crown’s title to the foreshore and the beds of tidal rivers was given statutory expression in the Harbours Act 1955 (Qld). It had been assumed in the Harbour Boards Act 1892 (Qld) which provided that nothing in the Act was to affect any right or prerogative of the Crown: s 6.

223 Section 77 of the Harbours Act 1955 (Qld) provided:

‘77.(1)Foreshores, etc, the property of the sea Crown All foreshores, and all land lying under the sea within Queensland waters as well as all land lying under the harbours of (including the tidal navigable rivers in) Queensland, shall, unless and until the contrary is proved, be deemed to be the property of the Crown in right of this State.

(2) Bed and banks of tidal navigable rivers Where a tidal navigable river forms the boundary wholly or in part of a parcel of land, lying above the bed thereof, alienated by the Crown -

(i) Before the commencement of this Act, the bed and banks (to the line of high water mark) thereof shall be deemed to have remained the property of the Crown and not to have passed with the land so alienated;

(ii) After the commencement of this Act, the bed and banks (to the line of high water mark) thereof shall, notwithstanding such alienation, remain the property of the Crown, and shall not pass with the land so alienated.

In every such case, whether of land alienated by the Crown before or after the commencement of this Act, such bed and banks shall be and remain the property of the Crown, notwithstanding that one and the same person at any time has been or is the owner of lands as aforesaid adjoining both banks:

Provided that as the line of high water mark forming wholly or partly the boundary of such land shifts by gradual and imperceptible degrees, so shall the boundary of that land shift also:

Provided further that the provisions of this subsection shall be read so as not to prejudice or otherwise affect any lease, conveyance, grant, disposal, right, interest, power, or privilege, of, in, over, or in relation to such bed and banks or any part thereof lawfully issued, made, granted, had, or conferred, whether before or after the commencement of this Act.

(3) No title had by reason only of length of possession No right or title to or interest or estate in any part of any foreshore, or of any land lying under the sea within Queensland waters, or of any land lying under any harbour of (including any tidal navigable river in) Queensland being -

(i) Crown land; or

(ii) Land which, whether before or after the commencement of this Act, has been vested in or reserved or set apart and placed under the management and control of any Harbour Board or Local Authority, or reserved or dedicated for or to any public purpose,

shall by reason only of length of possession, usage, or continued occupation be allowed to be asserted or established against -

(a) The Crown; or

(b) The Harbour Board, Local Authority, or persons holding such land in trust for such public purpose.

The provisions of this section shall not prejudice any lawful right had in common with other members of the public.

(4) Sanctions, etc., not to divest land from the sea Crown No sanction, permission, leave, or license, granted by any proper officer or authority under or for the purposes of this or any other Act, to construct any harbour works or other works of any kind in, on, through, or across any foreshore, or any land lying under the sea within Queensland waters or lying under any harbour of (including any tidal navigable river in) Queensland and being Crown land, or to disturb or remove any material or marine product thereon or therefrom, whether granted for the exclusive benefit of the grantee or otherwise, shall by itself have any effect whatsoever in divesting from the Crown any right, title, interest, or estate in that land.’

(Original emphasis)

224 The effect of s 77 of the Harbours Act 1955 (Qld) was to extinguish any right or interest of the applicants, if it had not been earlier extinguished at sovereignty, which was inconsistent with the Crown right, title, interest or estate in the land in the foreshore (inter-tidal zone) or land lying under the sea within Queensland waters or lying under any harbour of (including any tidal river in) Queensland.

225 After the introduction of the Harbour Boards Act 1892 (Qld), no person was entitled to ‘make erect or construct ... any ... structure in, on, over, through or across tidal lands or a tidal water without the sanction of the Governor in Council first obtained in the manner hereinafter specified’: s 64; see also s 86(2) of the Harbours Act 1955 (Qld). From that time any right under traditional laws and customs to build and maintain rock fishtraps in the inter-tidal zone, while not necessarily extinguished, was subject to regulation by the Crown in the manner recognised by the High Court in Yanner v Eaton at [37].

226 That leaves for consideration the issue of whether there exists a non-exclusive right to use fishtraps by the members of each of the applicant groups. The rights of which the indigenous witnesses spoke in their evidence were ‘ownership’ rights to the fishtraps and the exercise of the incidents of ownership. Absent such rights, the balance of the evidence which I have set out above is that use of fishtraps as a means of catching fish has fallen into disuse and the fishtraps have been allowed to fall into disrepair. Such hunting and fishing as occurs in the vicinity of what remains of the fishtraps is opportunistic and undertaken as a general right to fish and hunt in the area, rather than the use of a right which attaches to the fishtrap as such. It follows, in my view, that the rights which existed at sovereignty with respect to the construction, maintenance and use of rock fishtraps no longer exist or are no longer acknowledged and observed by contemporary members of the Lardil peoples, the Yangkaal peoples, the Kaiadilt peoples or the Gangalidda peoples.

places within determination area where native title exists

227 In order to give the claim area, being the seas ‘as far as the eye can see’ some geographical precision, the applicants tendered a report of Lieutenant S Preskett and Lieutenant Commander N Lemon of the Royal Australian Navy entitled ‘Report on Distances to the Horizon and Extreme Ranges’. Both officers are with the Hydrographic Service of the Australian Navy. On the basis of their instructions, the officers plotted on relevant sea charts of the area the location of the horizon from various points on land. They also calculated the extreme ranges at sea from which those points are visible from a boat. The observer was assumed to be 1.6 metres tall. By joining the arcs of vision at their furtherest points, the waters within their bounds is defined as the claim area. Using this method, the claim area has been substantially reduced from that which was originally claimed when the application was lodged.

228 The difficulty with the approach taken is that the location from which the calculations have been made are those where a spot height is indicated on the topographic maps for the land areas within the claim area. By definition, a spot height is a mark on a map indicating the height of a hill or a mountain (Collins English Dictionary; Australian Edition 1979 at 1408). That is, spot heights represent only local high spots. This has meant that calculations have been made from locations inland on Mornington Island distant from the sea shore but from where the view to the horizon extends for 13.2 and 13.8 nautical miles. There was no evidence that either the original Lardil peoples or their descendants stood on the highest locations on the island to observe the seas to the horizon. The evidence was that all these peoples lived along the coastal fringe and from there observed the seas adjacent to the beach front of their Countries. The highest observation points would have been on those Countries which contained a headland as a feature. There was some evidence from indigenous witnesses of standing on headlands and looking out to sea, but generally the picture which emerged from the evidence was one of people observing the seas in front of their Country from the frontal dunes or the beach. Further, there was no evidence of persons at the time of sovereignty standing on the outlying uninhabited islands such as Manowar and Rocky Islands looking seaward and claiming the seas to the distant horizon.

229 The distances calculated from positions at sea from which the features at the spot heights can be seen, although producing greater distances from shore, do not relate to the evidence of indigenous people of landward observations at sea. The extreme calculations do not include the ability to observe landfall significantly lower than the feature at the chosen spot height. Thus, it is impossible to visually fix the position at sea by reference to the two boundaries of Country at the seashore in order to ensure that one remained in one’s own Country. The evidence of the indigenous witnesses was that the observations from sea to land were of the coastline for the purpose of staying in the observer’s sea Country or navigating between different locations. That activity, I find, did not happen at anywhere near the extreme distances offshore produced by the calculations of the hydrographers. Accordingly I have not used those distances for any purpose.

230 The maps and topographic images tendered into evidence do not enable easy or certain identification of the contour lines on the sea bed. This is because a full survey of the seas in the area has not been done. In any event the cost to the applicants in attempting such a survey would be prohibitive.

231 Standing at sea level on the shore line, the hypothetical 1.6 metre high observer would see the horizon at 2.7 nautical miles. Allowing, for example, a spot height of four metres, the observer would see the horizon at 4.9 nautical miles distant. Because of the differing level of the frontal dunes and the existence along the shoreline of some prominent land features, to fix the position of the horizon at any point without a detailed land survey, will involve some degree of arbitrary choice. However, at no point along the coastline will the distance to the horizon be less than 2.7 nautical miles. Doing the best I can with the material before me, I consider that a distance of five nautical miles offshore constitutes a reasonable approximation of the limit of the sea Country which was claimed at the time of sovereignty as part of the traditional territories of each of the applicant peoples. Such a distance offshore Mornington and Sydney Islands, the northern eastern shores of Bentinck Island, and the eastern shores of Sweers Island, covers waters to a depth of 10 to 15 metres and more; and, around Denham, Forsyth, Bayley and the western and southern parts of Bentinck and Sweers Island to a lesser but not insignificant depth of up to eight metres. The position is the same with the seas offshore the southern shore line of the Gulf of Carpentaria claimed as traditional Gangalidda territory. There, five nautical miles offshore generally falls within the three fathom (5.5 metre) contour line of the Australian Chart AUS304. Those depths cover the offshore reefs shown on that chart. To fix a distance offshore at five nautical miles more fairly limits the areas in which I have found indigenous peoples engaged in activities of hunting, fishing and gathering, or in accessing sites for spiritual or religious ritual. It also recognises that some of that area was sea Country with which the people had a spiritual connection because it was part of the total world in which they lived, albeit that it does not translate into rights or interests in the land and waters recognised and protected by s 223(1) of the Act.

232 The area in which native title will be found to exist will be all the land and waters including reefs and sand bars within five nautical miles of the high water mark of each of the islands inhabited by the original Lardil peoples, the original Yangkaal peoples, the original Kaiadilt peoples and of the coastline inhabited by the original Gangalidda peoples. I am satisfied on the evidence that the traditional lands included islands which were visited to obtain turtle eggs or other resources and where hunting and fishing occurred in the adjacent waters. Having looked at the charts, the islands in question, where they do not fall within five nautical miles of the inhabited islands or mainland coast, have a reasonably shallow adjacent sea falling away to deep water. Again, the figure must have some element of arbitrary choice, but I am of the view that the waters within one-half of a nautical mile of the high water mark on each of these islands would reasonably represent the outer limit of the areas in fact used by the original peoples.

233 Accordingly, I find that area of land and waters in respect of which native title rights and interests were held at sovereignty were:

(a) the land and waters between a line five nautical miles seaward of the high water line and running parallel to it in respect of each island which was inhabited at that time;

(b) the land and waters between a line five nautical miles seaward of the high water line and running parallel with in between Massacre Inlet and the eastern bank of the Leichhardt River where it enters the Gulf of Carpentaria, together with the waters of the Albert River from the coast inland to a notional line across the river where it meets the eastern boundary of Lot 122 on Crown Plan 12; and

(c) the land and waters between a line one-half of a nautical mile seaward of the high water mark and running parallel with it in respect of uninhabited islands which otherwise do not fall within the area of land and waters covered by par (a) above.

234 I also find that the area in respect of which native title rights were possessed at the time of sovereignty constituted part only of the determination area for the purposes of s 225 of the Act.

other interests

235 Section 225(c) of the Act requires that the Court determine the nature and extent of any interests, other than the native title interests, in relation to the determination area. Having regard to the decisions in Yarmirr and Ward, it is clear that the public interests provided by the public right to fish, the public right to navigate and the international right of free passage and such other rights recognised by the common law as are exercisable by the holder of such rights, remain operative in the determination area. Further, those members of the eleventh respondent, and persons holding licences or authorities to fish or harvest aquatic resources under legislative sea resource management schemes of the Commonwealth of Australia and the State of Queensland, are entitled to the extent permitted by those licences or authorities to engage in the activities in the waters of the determination area specified in the licence or authority.

236 The interest of the third respondent relates to its maintenance of a buoy mooring placed in Investigator Road. That buoy mooring was originally placed in position, and is now maintained in place, pursuant to and subject to the conditions of a permit granted under the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld). The mooring is for the use of the vessel ‘MV Wunma’ or any other replacement transfer vessel used by the third respondent in connection with its mining operations at the Century Mine, 250 kilometres north/north west of Mt Isa. The ‘MV Wunma’ is used to transfer zinc concentrate from a slurry pipeline at Karumba on the coast to bulk carriers anchored in the Gulf. The buoy mooring is to provide a place of refuge in the event of a cyclone.

237 Originally, the applicants sought declaratory relief that the buoy mooring had been placed in position illegally and also sought mandatory injunctive relief requiring its removal. However, that claim was not pressed on the final hearing of the application.

238 The third respondent also claims the right to take samples from the waters, sea bed and air of the determination area, including the taking of small amounts of aquatic life, for the purposes of environmental monitoring. This right is opposed by the applicants.

239 The third respondent, like any other member of the public, has the right to exercise a public right to fish in the area. Additionally, it has a permit number PRM02253E, issued under the Fisheries Act 1994 (Qld) and the Fisheries Regulation 1995 (Qld) to take barramundi in accordance with the terms of the permit for the purposes of environmental testing.

240 The engagement of the third respondent in activities for the purpose of environmental monitoring of the seas and resources within the determination area is not inconsistent with any native title right or interest now held by the applicant groups. On the contrary, the activity is aimed at protecting the environment and amenity of the area; matters in respect of which the applicants claim an interest in protecting.

confidentiality orders

241 The applicants sought and obtained interim orders restricting access to the genealogies filed by them and the reports as to sacred sites prepared by Dr Memmott and others pending determination of the application. In final submissions counsel on behalf of the applicants sought permanent orders preventing access to those materials. It was submitted that the genealogies contained private information as to family affiliations which was only compiled for the purpose of this application and otherwise would not be information publicly available in the form in which it is now presented. Further, it was submitted that to identify the location of sacred sites put them at risk of desecration. These submissions were not supported by the filing of any materials upon which to properly draw a conclusion that the materials were so sensitive or culturally important that disclosure would be contrary to traditional laws or customs limiting access to the information to particular people or classes of people. Nor was there any material to support a finding that access to the report, by the public would give rise to a real risk of desecration.

242 The evidence contained in the genealogies was to a degree the subject of oral testimony in the proceedings. The indigenous witnesses spoke of their family lines and the family lines of others. The information concerning the Lardil peoples is published in part in Dr McKnight’s book. There was no indication from any of the indigenous witnesses that there existed any cultural reason as to why access to the information should be denied. Finally, proof of connection is an essential step in the proof of an entitlement to native title. The public interest in the proper administration of justice requires that unless there are special reasons to the contrary, the evidence given in public proceedings in Court ought to be available to the general public: Western Australia v Ward (1997) 76 FCR 492 at 500, 508 - 510.

243 The information as to sacred sites falls into the same category. The evidence is necessary to prove the existence of a native title right with respect to the land and waters of the determination area. Thus, it must be geographic specific to some extent. There was evidence that this material was being collated by Dr Memmott in part for dissemination through the school to young indigenous and other students. Again there was no suggestion that the location of the sacred sites was culturally or spiritually sensitive. The indigenous witnesses spoke freely of them. Nor is there any suggestion in the evidence that they were at risk of wilful destruction if the location of them was accessible to search of the Court proceeding. The only evidence as to alleged damage to sacred sites concerned the placement of the buoy mooring in Investigator Road. If there has been any damage caused to the site then it is clear that it arose from lack of a full knowledge of the site and not from any wilful intention to cause damage. To allow access to the materials filed in these proceedings is more likely to promote the protection of sacred sites; if persons are sufficiently interested to take the time to search the Court documents then it is likely that they are doing so in order to ensure that any action which they take in the determination area does not adversely effect any sacred site.

244 For the above reasons, I decline to make the permanent confidentiality orders sought. My decision is made without prejudice to the right of the applicants to apply on notice with supporting materials if circumstances should arise where confidentiality orders in respect of future access to the materials is justified.

245 DETERMINATION

1. Native title exists in so much of the ‘determination area’ as is described in the first to fourth schedules inclusive, but otherwise, does not exist in the determination area.

3. Native title is held by the Lardil peoples in the land and waters described in the first schedule.

4. Native title is held by the Yangkaal peoples in the land and waters described in the second schedule.

5. Native title is held by the Kaiadilt peoples in the land and waters described in the third schedule.

6. Native title is held by the Gangalidda peoples in the land and waters described in the fourth schedule.

(1) The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed by and under their traditional laws and customs.

(5) In respect of the waters of the Albert River specified in the Fourth Schedule, the Gangalidda peoples have the right to:

14. Liberty to apply on five clear days notice.

First Schedule

The land and waters in which the Lardil peoples hold native title are:

(i) subject to par (iii) below, the land and waters between the high water line on each of Mornington, Sydney and Wallaby Islands and a line five nautical miles seaward running parallel with it;

Second Schedule

The land and waters in which the Yangkaal peoples hold native title are:

(i) subject to par (v) below, the land and waters between the high water line on each of Denham, Forsyth and Andrew Islands and a line five nautical miles seaward running parallel with it;

(iii) the land and waters of Allen, Little Allen and Horseshoe Islands as defined under par (ii) above, are shared equally with the Kaiadilt peoples and the Gangalidda peoples;

Third Schedule

The land and waters in which the Kaiadilt peoples hold native title are:

(i) subject to pars (iii) and (iv) below, the land and waters between the high water line on each of Bentinck and Sweers Islands and a line five nautical miles seaward running parallel with it;

(iii) the land and waters of Allen, Little Allen, and Horseshoe Islands as defined under par (ii) above, are shared equally with the Yangkaal and Gangalidda peoples;

Fourth Schedule

The land and waters in which the Gangalidda peoples hold native title are:

(iv) the land and waters in par (ii) above are shared equally with the Yangkaal peoples.

(v) the land and waters in par (iii) above are shared equally with the Yangkaal and Kaiadilt peoples;

Fifth Schedule

The nature and extent of other interests in relation to the determination area are:

(a) other interests held by members of the public under the common law, including:

(i) the international law right of innocent passage;

(ii) the common law public right of navigation;

(iii) the common law public right to fish;

(e) Albert River Reserve, being Lot 1 on Crown Plan 884324.

I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 23 March 2004

Counsel for the Applicant:	J Basten QC, R Howie SC and D Parsons SC
Solicitor for the Applicant:	Chalk & Fitzgerald

Counsel for the First Respondent:	D Mullins SC until 20 March 2000 And then G Hiley QC and S McLeod
Solicitor for the First Respondent:	Crown Law

Counsel for the Second Respondent	J Bond SC and G Loughton
Solicitor for the Second Respondent:	Australian Government Solicitor

Counsel for the Third Respondent:	D O’Brien
Solicitor for the Third Respondent:	Blake Dawson Waldron

Solicitor for the Seventh, Eighth and Ninth Respondents:	M Boge, Thynne and Macartney

Counsel for the Eleventh Respondent:	P Flanagan
Solicitor for the Eleventh Respondent:	Gore and Associates

Dates of Hearing:	20, 21, 22, 23 and 24 September 1999 14, 18, 19, 20 21, 22, 23, 25, 26 and 27 September 2000 9, 10, 11, 17, 30 and 31 October 2000 1, 2, 3, 6, 7, 8, 9, 10, 13 and 14 November 2000
Further Written Submissions:	30 September 2002, 1 November 2002 5 and 6 November 2002
Further Dates of Hearing:	16 and 17 December 2002

Date of Judgment:	23 March 2004

Top