FEDERAL COURT OF AUSTRALIA

 

Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 

Citation:		Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625
Parties:		DAWN APLIN, MALCOLM GEORGE, EUNICE O'KEEFE, FRED O'KEEFE AND ADA WALDEN ON BEHALF OF THE WAANYI PEOPLES v STATE OF QUEENSLAND, MOUNT ISA CITY COUNCIL, BURKE SHIRE COUNCIL, THE NORTHERN TERRITORY OF AUSTRALIA, CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION, GREGORY LLOYD PHILLIPS, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, MMG CENTURY LIMITED (FORMERLY OZ MINERALS CENTURY LIMITED), MOUNT ISA MINES LIMITED and AA COMPANY PTY LTD, BEZUMA PASTORAL CO PTY LTD, GAMBAMORA INDUSTRIES PTY LTD, LINDSAY WRAY MILLER, VIVIAN RAYMOND MILLER, STANBROKE PASTORAL COMPANY PTY LTD, VENLOCK PTY LTD, ALAN JAMES WEBBER
File number:		QUD 6022 of 1999
Judge:		DOWSETT J
Date of judgment:		18 June 2010
Catchwords:		NATIVE TITLE –claim group membership – traditional laws and customs – whether certain ancestor was a member of a particular indigenous society – whether descendants part of particular indigenous society – power of Court to determine composition of claim group
Legislation:		Native Title Act 1993 (Cth) ss 61, 62, 251B, 253 Aboriginal Land Rights (NT) Act 1976 (Cth) Aboriginal Land Act 1991 (Qld)
Cases cited:		Cameron v Hogan (1934) 51 CLR 358 discussed Baldwin v Everingham [1993] 1 Qd R 10 applied Edgar and Walker v Meade (1916) 23 CLR 29 discussed Clarke v Australian Labor Party (South Australian Branch) (1999) 74 SASR 110 referred to Thornley v Heffernan (unreported, Supreme Court of New South Wales, 25 July 1995 per Brownie J) cited Sharples v O’Shea (unreported, 18 August 1999, Supreme Court of Queensland per Atkinson J) cited Tucker v Macdonald [2001] QSC 296 cited Galt v Flegg [2003] QSC 290 cited Coleman v Liberal Party of Australia, New South Wales Division (No 2) [2007] NSWSC 736 cited Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 applied Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 applied Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 referred to Sampi v State of Western Australia [2005] FCA 777 discussed Sampi v State of Western Australia [2010] FCAFC 26 discussed Ngurli Ltd v McCann (1953) 90 CLR 425 cited Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 cited Gambotto v WCP Pty Ltd (1995) 182 CLR 432 referred to Alexander v Automatice Telephone Company [1900] 2 Ch 56 cited Menier v Hooper’s Telegraph Work (1873-74) LR 9 Ch App 350 cited
Dates of hearing:	27-30 July 2009, 24-26 August 2009 and 13 October 2009
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	271
Counsel for the Applicant:	Mr G Hiley QC with Ms H Bowskill
Solicitor for the Applicant:	Chalk & Fitzgerald Lawyers & Consultants
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	The Second Respondent did not appear
Counsel for the Third Respondent:	The Third Respondent did not appear
Counsel for the Fourth Respondent:	The Fourth Respondent did not appear
Counsel for the Fifth Respondent:	The Fifth Respondent did not appear
Counsel for the Sixth Respondent:	Mr T McAvoy
Solicitor for the Sixth Respondent:	Blackshield & Co
Counsel for the Seventh Respondent:	The Seventh Respondent did not appear
Counsel for the Eighth Respondent:	The Eighth Respondent did not appear
Counsel for the Ninth Respondent:	The Ninth Respondent did not appear
Counsel for the Tenth Respondent:	The Tenth Respondent did not appear
Counsel for the Eleventh Respondent:	The Eleventh Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6022 of 1999

 

BETWEEN:

DAWN APLIN, MALCOLM GEORGE, EUNICE O'KEEFE, FRED O'KEEFE AND ADA WALDEN ON BEHALF OF THE WAANYI PEOPLES Applicant

AND:

STATE OF QUEENSLAND First Respondent   MOUNT ISA CITY COUNCIL Second Respondent   BURKE SHIRE COUNCIL Third Respondent   THE NORTHERN TERRITORY OF AUSTRALIA Fourth Respondent   CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION Fifth Respondent   GREGORY LLOYD PHILLIPS Sixth Respondent   ERGON ENERGY CORPORATION LIMITED Seventh Respondent   TELSTRA CORPORATION LIMITED Eighth Respondent   MMG CENTURY LIMITED (FORMERLY OZ MINERALS CENTURY LIMITED) Ninth Respondent   MOUNT ISA MINES LIMITED Tenth Respondent   AA COMPANY PTY LTD, BEZUMA PASTORAL CO PTY LTD, GAMBAMORA INDUSTRIES PTY LTD, LINDSAY WRAY MILLER, VIVIAN RAYMOND MILLER, STANBROKE PASTORAL COMPANY PTY LTD, VENLOCK PTY LTD, ALAN JAMES WEBBER Eleventh Respondent

 

JUDGE:	DOWSETT J
DATE:	18 JUNE 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Introduction

1                                             This application (the “application”) for a determination of Native Title pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the “Native Title Act”) was filed on 30 August 1999 on behalf of the Waanyi people.  On 2 February 2009, the Court ordered that Malcolm George, Fred O’Keefe, Ada Walden, Eunice O’Keefe and Dawn Aplin jointly replace all of the previous persons comprising the applicant.  The State of Queensland, the Northern Territory of Australia, the Burke Shire Council and the Mount Isa City Council are respondents.  I shall refer to the State of Queensland, in its capacity as a party, as the “State”.  I shall use the word “Queensland” in its geographical sense.  The terms “Territory” and “Northern Territory” will be similarly used.  Other respondents have interests in infrastructure, mining exploration and agriculture in the relevant area.  The Carpentaria Land Council Aboriginal Corporation (the “CLCAC”) is also a respondent, as is Mr Gregory Lloyd Phillips (“Mr Phillips”). 

2                                             The claim group is presently described as follows:

The native title claim group (hereafter “the claimant group”) on whose behalf the claim is the Waanyi people.  The Waanyi people are the biological descendants of the following Waanyi ancestors:

1.	Ruby (“Lilwayi”)	21.	“King” Pedro (“Gurinji”)
2.	Polly (“Nganduyu”)	22.	Elsie Moreland
3.	May (“Nijirijbina”)	23.	Doris Aplin
4.	Junie Clay	24.	Daisy Dick
5.	Marina Dick	25.	Lena Saville
6.	Maurice Carlton	26.	Queenie Bell
7.	Murray Donaldson	27.	Oscar Gregory
8.	Micky Miller	28.	Tommy Doolan
9.	Left-Hand Dick	29.	Jimmy Philip
10.	“King” Darby (“Dalyirimaji”)	30.	Ivy (“Gulanjuba”)
11.	Frank (“Grinmayamaji”)	31.	Mary Starr
12.	Dick “Mailman” (“Gungayamaji”)	32.	Sydney Punjaub
13.	Johnny Rockland	33.	Mailman Jack (“Libaninji”)
14.	Toby Daly	34.	Jack Riversleigh
15.	Charley Waldon	35.	Gunawarinya (“King of Turn off Lagoons”)
16.	Arthur Peterson	36.	Cubby Pedro (“King of Lawn Hills”)
17.	Frank Hogan	37.	Limmerick Peter
18.	Clara Darby	38.	Mick Diamond
19.	Julie Darby	39.	Jack Diamond
20.	Duncan Hogan	40.	Harry (“Lulwarra”)

Some family names associated with the biological descendants of the named Waanyi ancestors are Aplin, Bell, Cameron, Campbell, Carlton, Chong, Cubby, Daylight, Diamond, Dick, Dixon, Doolan, Douglas, Hogan, Hookey, Jack, Jackson, Jacob, Johnny, George, Gregory, King, O’Keefe, Ned, Pedro, Peter, Punjaub, Riversleigh, Rockland, Shadforth, Walden and Willetts.

3                                             The applicant has applied for leave to amend the application in accordance with exhibit DB1 to the affidavit of Dominic Patrick William Beckett filed on 28 January 2009.  The proposed description of the claim group is:

The native title claim group is the Waanyi People.

The Waanyi People are those of the living descendants of Waanyi ancestors who identify as being Waanyi people, and are recognised by other Waanyi people as being Waanyi people.

It is accepted that adoption may take place and that where adoption has occurred it confers upon the adoptee the right to identify as being a Waanyi person.

The following persons are the known Waanyi ancestors:

1.         King George (Gundawarinya), Mary Starr (Namura), Marrandu

2.         Johnny Rockland (Guyanda)

3.         Wuragaga (including his sons Toby Daly and Charlie Walden)

4.         Wirduga (including her sons King Pedro & Fred Mangala), Yurumburinya, Gudurju, Jagijagi (including her children Left-hand Dick, King Darby, Violet Darby), Lagayi, & Brenda Munara (including her children Duncan Hogan, Julie Darby, Dan Darby, Clara Darby, Frank Hogan, Arthur Peterson)

5.         Jack Riversleigh (including his children Doris Aplin & Vera Johnny, Annie King & Elaine Cairns)

6.         Diana (Dina) Jackson

7.         Fred Mangala (including his children Jimmy Doolan, Tommy Doolan, Oscar Gregory & Queenie Bell) and King Pedro (including his children Dinny, Jock & Cubby Pedro)

8.         Janggali (including his son Yarribija’s children: Duncan Hogan, Julie Darby, Dan Darby, Clara Darby, Frank Hogan, Arthur Peterson; & his daughter Muranji’s daughters: Jamuyu & Lidi Wayawarrinya)

9.         King Darby, Left Hand Dick & Violet Darby

10.       Descendants of Ruby Lilwayi (including her daughter Elsie Foster), Polly Nganduyu (including her children: Nancy Carlton, Ned George, Sally O’Keefe, Bubi Dick, Netty Malbow & Nuts Logan), May Black Nijirijbina (including her children Nancy Wilson, Nora Black, Dora Doolan nee Black and Archie Black), Ruby Gijaya (including her children Mavis Carlton, Junie Clay, Maurice Carlton, Marina Dick, Mick Miller, Murray Donaldson), & Mailman Dick Gungayamaji (including his child Ivy Geroge Ngayaya)

11.       Smiler Diamond (including his children: Mick Diamond Nguyjbirri & Jack Diamond Bandangala & Sydney Punjaub & Ruby)

12.       Mailman Jack Libaninji (including his son Fred Carlton Gajangga, daughter Rosie & her daughter Betty Lloyd Jayinbalina, and son Ned Ngaragulanji & his children Bessie Holt & Colin Holt)

13.       Rosie (including her daughter Lena Saville)

14.       June Jacob

15.       Opal

4                                             I have deferred consideration of the motion pending resolution of the questions with which these reasons are concerned.

5                                             Mr Phillips claims that his ancestor, “Minnie” was a Waanyi woman, and that he and her other descendants should be recognized as members of the claim group.  The applicant and the claim group, as presently constituted, reject this claim.  I understand that virtually all other matters in dispute in these proceedings have been resolved.  On that basis, on 1 July 2009 I ordered that the questions in dispute between Mr Phillips and the applicant be listed for separate determination.  Exhibit A to my order outlines the questions for hearing and facts agreed as between Mr Phillips and the applicant as follows:

QUESTIONS FOR HEARING AND AGREED FACTS

Definitions

In these questions, and in the Agreed Facts, the following words and phrases have the following meanings:

“Claim area” means the area of land and waters described in Schedule B to the proposed Amended Application, being the document entitled “Amended Claimant Application” which is Annexure “DB1” to the Affidavit of Dominic Patrick William Beckett sworn on 28 January 2009

“Waanyi person”, means one of the Waanyi people.

Questions

1.         What are the laws and customs of the Waanyi people concerning who are Waanyi people?

a.         The Applicant says that a person is a Waanyi person if and only if he or she:

i.          is a descendant (biological or adopted) of a Waanyi person;

ii.          identifies himself or herself as a Waanyi person; and

iii.         is recognised by the other Waanyi people as being a Waanyi person.

b.         The respondent Mr Phillips:

i.          Disputes points [ii] and [iii] above; and

ii.          says that a Waanyi person is a person who is descended from a person who is known by a senior Waanyi person or senior Waanyi people to have been a Waanyi person.

2.         Having regard to the answer to question 1 above, was the deceased person known as Minnie (Mayabuganji):

a.         a Waanyi person;

b.         a person from whom living Waanyi persons may be descended?

Agreed Facts

It is agreed between the Applicant and the respondent Mr Phillips that:

1.         Native title exists in relation to the claim area.

2.         The persons, or the group of persons, holding the native title in relation to the claim area are the Waanyi people.

3.         Since prior to sovereignty (which occurred in 1788) the Waanyi people have been, or alternatively have been part of, a body of persons united in and by its acknowledgment and observance of a body of laws and customs.

4.         Since prior to sovereignty:

a.         the said body of persons has substantially maintained its identity and existence from generation to generation in accordance with the said laws and customs through to the present time;

b.         the said laws and customs have been acknowledged and observed by the said body of persons; and

c.         such acknowledgement and observance has continued substantially uninterrupted.

5.         At all material times the said laws and customs have been acknowledged and observed by the Waanyi people.

6.         The Waanyi people possess rights and interests in the claim area under the said laws and customs.

7.         By those laws and customs the Waanyi people have a connection with the Claim Area.

8.         The laws and customs acknowledged and observed by the Waanyi people include laws or customs in relation to who is a Waanyi person.

9.         The deceased persons listed in Attachment A were all Waanyi people from whom living Waanyi people may be descended.    

Attachment A contains the same named ancestors as appear in the proposed amended application.

6                                             On 1 July 2009, I ordered by consent that:

7          …

a.         The Applicant bears the onus of satisfying the Court in relation to all matters necessary for answering question 1 in the manner proposed by the Applicant; and

b.         Mr Phillips bears the onus of satisfying the Court in relation to all matters necessary for answering question 1 in the manner that he proposes, and for answering question 2 in the affirmative.

7                                             Pursuant to my order any other party wishing to be heard in relation to any of these questions was to seek leave to appear.  No other party has done so.  However, during the course of the hearing of these separate issues I became concerned as to whether the other respondents to the application would be bound by my findings.  I asked the applicant’s solicitors to write to the other parties, requesting that they confirm that they did not wish to participate in the hearing, and that they understood that they would be bound by my decision.  With the exception of the State, all parties indicated their acceptance of those propositions. 

8                                             The State advised the Court, by letter, that it did not consent to be bound by any agreed facts as between the applicant and Mr Phillips, but otherwise did not wish to participate in the proceedings.  It agreed to abide by the decision of the Court as to whether Minnie was or was not a Waanyi person.  Mr Prowse appeared for the State in order to explain its position.  I invited the State to participate in the hearing and allowed it seven days in which to consider whether it wished to do so.  The State has not sought to be heard further.  I proceed upon the basis that the State will be bound by my decision.  

Preliminary matters

9                                             An inquiry into composition of the claim group is akin to proceedings to identify and enforce the rules of a voluntary association.  Generally, the courts do not concern themselves with such questions.  As much was established in the case of political parties by the decision of the High Court in Cameron v Hogan (1934) 51 CLR 358.  That case concerned the decision of the executive of the Australian Labour Party of the State of Victoria not to endorse the respondent as a candidate for election to the State Parliament, and its subsequent decision to expel him from the party.  The respondent sought relief in the Victorian Supreme Court but was unsuccessful.  He appealed to the High Court.  The appeal was dismissed on the ground that there could be no actionable breach of contract, either at common law or in equity, as the respondent had, under the rules of the Party, no civil rights of a proprietary nature which a court would protect.  Rich, Dixon, Evatt and McTiernan JJ said at 370 to 371:

There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalisation it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law.  One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting, political, scientific, religious, artistic, or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract. …

10                                          Their Honours continued at 378:

[M]embership of the association carries with it no tangible or practical proprietary right.  The association must be conducted, and money is needed to carry it on. There must be some margin of revenue over current expenditure, some continuing possessions for use by its officers, some rights incidentally acquired in process of fulfilling its objects.  But the existence of such property is incidental and accidental.  The organization is a political machine designed to secure social and political changes. It furnishes its members no civil right or proprietary interest suitable for protection by injunction.  Further such a case is not one for a declaration of right.  The basis of ascertainable and enforceable legal right is lacking.  The policy of the law is against interference in the affairs of voluntary associations which do not confer upon member’s civil rights susceptible of private enjoyment. 

11                                          In Baldwin v Everingham [1993] 1 Qd R 10, I held that insofar as concernspolitical parties, the Commonwealth Parliament, in conferring legislative recognition upon them, had made them something more than mere voluntary associations.  That recognition involved registration, entitlement to public moneys and the obligation to account for the expenditure of such moneys.  It followed that the propositions upon which the decision in Cameron v Hogan depended no longer applied to registered political parties.  I applied the reasoning of Issacs J (as his Honour then was) in Edgar and Walker v Meade (1916) 23 CLR 29 at 43-44.  In that case his Honour held that the requirement that an organization be registered under the Commonwealth Conciliation and Arbitration Act 1904 (Cth) made it a “creature” of the Federal Parliament, the rules as to membership of which would be enforced by the courts.

12                                          In Clarke v Australian Labor Party (South Australian Branch) (1999) 74 SASR 110, Mullighan J reviewed the authorities and legislation upon which Baldwin v Everingham was decided and followed it.  The decision has also been followed in a number of other cases: see Thornley v Heffernan (unreported, Supreme Court of New South Wales, 25 July 1995 per Brownie J); Sharples v O’Shea (unreported, 18 August 1999, Supreme Court of Queensland per Atkinson J); Tucker v Macdonald [2001] QSC 296 per Muir J; Galt v Flegg [2003] QSC 290 per Moynihan SJA; and Coleman v Liberal Party of Australia, New South Wales Division (No 2) [2007] NSWSC 736 per Palmer J.

13                                          In any event, the Native Title Act clearly contemplates that an application for a determination as to the existence of Native Title will be brought by an applicant on behalf of an identifiable claim group.  Section 61 provides:

61        Native title and compensation applications

Applications that may be made

(1)        The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

Applications
Kind of application	Application	Persons who may make application
Native title determination application	Application, as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title.	(1)  A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or …

Applicant in case of applications authorised by claim groups

(2)        In the case of:

(a)        a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

(b)        a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(c)        the person is, or the persons are jointly, the applicant; and

(d)        none of the other members of the native title claim group or compensation claim group is the applicant.

Applicant’s name and address

(3)        An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

(4)        A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a)        name the persons; or

(b)        otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

(5)        An application must:

(a)        be in the prescribed form; and

(b)        be filed in the Federal Court; and

(c)        contain such information in relation to the matters sought to be determined as is prescribed; and

(d)        be accompanied by any prescribed documents and any prescribed fee.

14                                          The term “native title claim group” is defined in s 253 as follows:

“native title claim group” means:

(a)        in relation to an application for determination of native title made to the Federal Court – the native title claim group mentioned in relation to the application in the table in subsection 61(1); …

15                                          The claim group must authorize the application.  Section 251B provides:

Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)        where there is a process of decision‑making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)        where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision‑making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

16                                          Section 62 of the Native Title Act prescribes that:

Information etc. in relation to certain applications

Claimant applications

(1)        A claimant application (see section 253):

(a)        must be accompanied by an affidavit sworn by the applicant:

(i)         that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

(ii)        that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and

(iii)       that the applicant believes that all of the statements made in the application are true; and

(iv)       that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

Note:      Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

(v)        setting out details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

(b)        must contain the details specified in subsection (2); and

(c)        may contain details of:

(i)         if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application—that traditional physical connection; or

(ii)        if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application—the circumstances in which the access was prevented.

Note:      The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.

Details required by paragraph (1)(b)

(2)        For the purposes of paragraph (1)(b), the details required are as follows:

(a)        information, whether by physical description or otherwise, that enables the boundaries of:

(i)         the area covered by the application; and

(ii)        any areas within those boundaries that are not covered by the application;

to be identified;

(b)        a map showing the boundaries of the area mentioned in subparagraph (a)(i);

(c)        details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non‑native title rights and interests in relation to the land or waters in the area covered by the application;

(d)        a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e)        a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i)         the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii)        there exist traditional laws and customs that give rise to the claimed native title; and

(iii)       the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f)        if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;

(g)        details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

(ga)      details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

(h)        details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

Note:      Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).

…

17                                          The Native Title Act provides a mechanism for obtaining a determination that Native Title, vested in a claim group, continues to exist.  It also confers negotiating rights upon applicants who have registered applications.  Such rights are held on behalf of the relevant claim group.  The application must contain certain information concerning claim group membership and its decision-making processes: ss 61 and 62.  Although the term “native title claim group” is a creature of the Native Title Act, it is used to describe a pre-existing social group – those people of indigenous descent who claim a shared interest in land or waters pursuant to shared traditional laws and customs as those terms were explained by the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422.  Identification of that claim group is a necessary element in any determination as to the existence of Native Title. 

18                                          Membership of a claim group involves rights recognized by the common law.  The statutory regime contained in the Native Title Act prescribes a procedure for establishing the continued existence of Native Title vested in the members of an identifiable claim group.  It follows from these considerations that the resolution of disputes as to the rules governing membership of the claim group, and as to their operation are justiciable questions.

MR PHILLIPS’ CASE

19                                          Mr Phillips effectively asserts that any claim group description which does not include Minnie’s descendants does not accurately describe the group which, according to Waanyi traditional laws and customs, has Native Title in the land which is the subject of this application.  He submits that:

·                    traditional Native Title holders of  the subject land are the Waanyi people;

·                    the Waanyi people are descendants of Waanyi ancestors; and

·                    Minnie was a Waanyi woman, and her descendants are therefore Waanyi people.

20                                          The claim group, as presently defined, and as defined in the proposed amendment, does not accept that Minnie was a Waanyi woman.  It asserts that the current description of the claim group correctly excludes her and her descendants, as does the proposed amended description.  Both the claim group and Mr Phillips accept that the traditional owners of the claimed area are the Waanyi people.  The current description of the claim group purports exhaustively to identify the apical ancestors of the Waanyi people.  Mr Phillips submits that Minnie should be on that list.  The proposed amended description purports to identify only “the known” Waanyi ancestors.  Membership of the claim group, as presently defined, depends upon descent (biological or adoptive) from a nominated Waanyi ancestor.  The proposed amended description requires descent from a Waanyi ancestor, but it is at least arguable that the list of “known” ancestors is not closed.  In other words it may be open to a person to demonstrate that an ancestor, not identified in the proposed amended description, was a Waanyi person.  Mr Phillips seeks to do so.  The greater part of these reasons addresses the question of whether Minnie was a Waanyi person.

THE WAANYI PEOPLE

21                                          The following description of the Waanyi people and their history is derived primarily from the report of Professor Trigger dated 9 June 2009 and/or the attached report prepared by Professor Trigger and Ms Pauline Fietz dated August 2003.  Much of this is uncontested. 

22                                          The word “Waanyi” denotes an Aboriginal language of the southern Gulf of Carpentaria region.  The existence, name and territorial location of the language have been well known since the arrival in the region of European and Asian people.  Professor Trigger considers that it may safely be inferred that at the time of assertion of British sovereignty in 1788, there was a group of Aboriginal people in the southern Gulf region who spoke the Waanyi language and acknowledged and observed a common body of laws and customs.  Those laws and customs identified and regulated their rights and interests in relation to country, including country within the claim area and beyond.  The present claim includes land in both Queensland and the Northern Territory.  However, as I understand it, the area in the Northern Territory is to be excised from the claim.  It has been dealt with pursuant to the Aboriginal Land Rights (NT) Act 1976 (Cth) (the “NT Act”).  The term “Waanyi” is now used to identify Aboriginal people who have, or assert traditional connection with, and rights and interests in land and waters in the claim area.  No other indigenous group now asserts traditional ownership over any part of the claim area.   

23                                          Professor Trigger observes that the majority of contemporary Waanyi people have lived most of their lives in close proximity to some part of traditional Waanyi land.  A large number live at Doomadgee, with other residents at Mornington Island, Burketown, Robinson River, Borroloola, Camooweal and Mount Isa.  None of these centres is actually in the claim area although Doomadgee is just to the north of the northern boundary and within an Aboriginal Reserve held pursuant to a deed of grant in trust (the “Doomadgee DOGIT”).  Since the early 1980s some families have lived on, or visited periodically several outstations or camps within the area of the Nicholson River Land Trust in the Northern Territory.  This area was successfully claimed by Waanyi and Garawa traditional owners under the NT Act.  Waanyi people have similarly lived on, or visited locations within the Doomadgee DOGIT. 

24                                          The contemporary Waanyi people are, and understand themselves to be descended from Waanyi people of previous generations, inferentially going back to pre-British sovereignty times.  They acknowledge a body of laws and customs which, it may be inferred, is derived from, and therefore based upon, a body of laws and customs observed by the Waanyi people at the time of first assertion of sovereignty.  It may also be inferred that such body of laws and customs has existed and been observed, with changes, adaptations and transformations since that time.  Under that body of laws and customs, the Waanyi people have connections with, and rights and interests in country within the claim area.  This body of laws and customs includes rules by which membership of the group may be determined. 

25                                          According to Professor Trigger, in order to be a Waanyi person, entitled to participate in Waanyi public life and traditional rights in Waanyi country, a person must:

·                    be a descendant (biological or adopted) of a Waanyi person;

·                    identify himself or herself as a Waanyi person; and

·                    be recognized by the broad group of Waanyi people as being a Waanyi person.

26                                          Mr Phillips disputes this statement in so far as it concerns self-identification and group acceptance.  He asserts that Waanyi descent, recognized by one senior Waanyi person (or more) is sufficient qualification for being a Waanyi person pursuant to Waanyi traditional laws and customs.  Professor Trigger says at para 23 of his report:

It would not be correct to say, without further qualification, that a person is a Waanyi person if they assert descent from, or adoption by, a person who was themselves [sic] a Waanyi person – this would overlook the need for a reasonable degree of acceptance of this proposition among the holders of Waanyi traditional law and custom.

For the purposes of Waanyi laws and customs:

i           A person may relevantly assert their identify as a Waanyi person by: being known among Waanyi and other Aboriginal people of the region as descended from one or more Waanyi forebears; engaging in social relationships with other Waanyi people, including being situated within the kinship system, so that other Waanyi people classify the person as a category of relative; discussing their Waanyi family and cultural background with others, especially senior Aboriginal people of the Gulf region; and

ii          A person is recognised or accepted as being a Waanyi person if: they and their genealogical background are accepted as “known” by a significant proportion of what we might term the Waanyi “public”; such acceptance being evident when there is no longer a significant number of Waanyi people prepared to argue overtly against an assertion from a person that they have a Waanyi identity derived from traditional Waanyi law and custom.

27                                          In other parts of the evidence Professor Trigger suggests that such acceptance may be demonstrated when no senior Waanyi person is willing to dispute the claim publicly.  Pursuant to Waanyi laws and customs each person has particular traditional connections to some section or sections of Waanyi country.  Such connections are determined by reference to laws and customs anchored in the systems of dreamings and skins.  Dreamings appear to be stories having spiritual significance.  The term “skins” denotes “sub sections” or “semi-moieties” that apply to Aboriginal people in the southern Gulf region.  The skins system regulates decisions as to permissible marriages and connections to particular areas within the broader area of Waanyi country.  It is fundamental to Waanyi law and custom that rights to country are organized according to how people fit into the kinship system, including the skins system, dreamings and various spiritual features of the traditional landscape. 

28                                          People are acknowledged as being Waanyi on the basis of ancestral links to one or more known Waanyi forebears.  Descent may be through the father or the mother.  Any person with at least one Waanyi grandparent is usually able to sustain a claim to membership of the group.  Factors which do not confer membership include marriage to a Waanyi person, birth on Waanyi country, lengthy residence on such country, or the fact that a forebear has died or been buried there.  Adoption is common, and adopted children are entitled to share in collective rights to the group’s traditional cultural property.

29                                          Today, Waanyi people frequently also have non-Waanyi forebears who may be Aboriginal or non-Aboriginal.  Persons frequently have affiliation to more than one linguistic group.  There is no stated preference for patrilineal or matrilineal inheritance in this regard.  However a choice is usually made between patrilineal and matrilineal descent.  Many people claim affiliation with the country of more than one language group.  The choice between primary identification with language, name, linguistic territory and bodies of laws and customs is complex.  There is no single rule for resolution of multiple inherited potential affiliations.  The choice often involves negotiation, largely carried out orally. 

30                                          Aboriginal society has undergone transformation since European settlement so that “collective social action” is more frequently pursued by groups having language as their primary identity label.  Professor Trigger sees this as a transformation of the classical clan-based system to a system which operates at a “tribal” level.  I understand this to mean that in the past, Waanyi people identified more with smaller clan groups within the Waanyi language group than with that larger group itself.  In more recent times, there has been a greater focus upon membership of the larger group.  Professor Trigger attributes this development to extended negotiations with government and other parties in the wider Australian society.  However he considers that the fundamental criteria of assertion, self-identification and collective acceptance of claims to rights in country have continued to operate since a time prior to British sovereignty.  The scale of public discussion amongst members of relevant Aboriginal groups has probably increased and become more organized, so that it may now appear to be a formal process involving voting and recording of decisions.  However, according to Waanyi laws and customs, an individual person’s claim to country is ultimately accepted or rejected through a process of collective debate and consideration, which process remains anchored in separate discussions among different Waanyi extended families.

31                                          Professor Trigger then identifies a group which he describes as “Diaspora people”.  These are Aboriginal people who have, for whatever reason, dispersed or been dispersed into areas away from their traditional lands.  Professor Trigger refers to the work of Professor Rigsby in which he observes that where such persons assert membership of traditionally defined groups, without being clearly known amongst those who have lived in close proximity to their traditional country, they may be regarded as kin and not as strangers.  Professor Trigger adopts the following statement by Professor Rigsby:

That is, by virtue of kinship, etc, Diaspora people are entitled to group membership.   But they don’t get it in one quick go.  Like children they have to acknowledge the authority of resident elders and they have to demonstrate respect for Law, Stories and the spirits of their Old People on the land etc. …  What is important is that we can observe the operation of law and custom for identifying, incorporating and socialising them.  It’s the operation of law and custom that helps us to demonstrate that there is an ongoing social group of traditional owners.

32                                          Of that quotation Professor Trigger observes:

With the qualification that in my opinion the equation of such “Diaspora people” with the status of “children” overstates the issue, I believe Professor Rigsby’s point about the operation of traditional law and custom in this matter is relevant to these proceedings.  We can note, however, as also instructive, the findings of anthropologist Dr Ben Smith, who investigated this issue on Cape York Peninsula, namely that there can be disagreement between local and Diaspora people asserting traditional connections to the same country:

Local understandings tend to stress particular relationships of people and groups to particular places and tracts of land, whereas diaspora understandings usually emphasise the connection between language named “tribes” and the entirety of country associated with a particular language.

33                                          Professor Trigger also opines that:

Lengthy physical absence from the Southern Gulf region encompassing Waanyi land does not erase the right of persons to assert membership of the group; though this can be a complex and politically fraught issue.  Families or individuals who may have lived distant from Waanyi country for several generations appear to maintain the potential right to reactivate involvement in Waanyi affairs and Waanyi country.  Their success in doing so follows from a range of factors, including their choice of whether to live in the southern Gulf region or at least participate actively in social interaction with Waanyi people, and the strength of their assertions.  Central to the negotiation of establishing acceptance of a person’s right to involvement in Waanyi culture and country is agreed knowledge about their forebear(s).

34                                          Professor Trigger observes that amongst the Waanyi people, each individual family generally claims distinctive connection to one or more of the identified Waanyi “countries”.  Such claims are matters for public consideration.  Without a link to one of the distinctive Waanyi countries, it is difficult for people asserting Waanyi identity, on the basis of deceased Waanyi forebears, to gain acceptance by the Waanyi group.  This is “because connection through a deceased forebear to one of the Waanyi countries entails a position in the Waanyi kinship and ‘skins’ systems as well as a publicly acknowledged set of relationships to particular Dreamings, i.e. to the spiritual features of Waanyi country”.  People asserting Waanyi identity are expected to know their forebears.  If they do not have this information, they should be able to derive it from discussions with knowledgeable senior Waanyi people.

35                                          A person’s connection to a particular area in Waanyi county is a matter of public knowledge.  It may not necessarily be asserted publicly unless the need arises.  Such need may arise in connection with land claims, Native Title, cultural heritage and related negotiations.  Group recognition depends upon the relevant person asserting such connection to key persons regarded as senior in terms of knowledge of Wannyi cultural and historical matters.  Senior persons exercise considerable influence over the decision-making process although, in practice, inter-personal politics may affect the outcome.  As the matter is one of oral tradition, claims should be of a substantially public nature.  Public assent may be inferred when no senior Waanyi person is prepared publicly to oppose a particular claim. 

THE WAANYI LANDS AND THE CLAIM AREA

36                                          Although I will return to these matters at a later stage, I should outline briefly the areas which the Waanyi people claim.  The evidence demonstrates that they originally occupied an area astride the Northern Territory-Queensland border.  The Waanyi are said to have been hill people.  Much of the area claimed jointly by the Garawa and Waanyi people in the Northern Territory is hill country to the south of a feature described as the “China Wall” which is, itself, south of Calvert Hills. The hilly country extends into Queensland in the vicinity of Lawn Hill, formerly a well-known station, now a national park.  Originally, Waanyi country may have included the hilly western part of the Lawn Hill area, but perhaps not the more easterly part.  At some stage, as the result of European incursions into the area, adjoining tribes to the east and south were greatly reduced in numbers.  The Waanyi people succeeded them as holders of Native Title in those areas.

37                                          The most easterly point of the claim area is now about 100 km south of Burketown.  The claim boundary runs north-west from that point, following either natural features or boundaries between different types of post-sovereignty land tenure, and keeping about 100 km from the coast, until it reaches the Northern Territory border.  In its present form, it then extends into the Northern Territory but, as I have said, the claim is to be amended to exclude those parts which are in the Northern Territory.  From the most easterly point, the boundary runs south-west for about 100 km, and then more or less west to the Northern Territory border.  This part of the boundary seems to follow natural features.  The boundary then runs north along the Queensland-Northern Territory border to the southern boundary of the Nicholson River Land Trust area which encompasses the land successfully claimed by the Waanyi and Garawa people in the Northern Territory.

THE MINNIE FAMILY

38                                          Mr Blackwood, an anthropologist retained to advise Mr Phillips and the other members of the Minnie family, describes that family in his report at para 89 et seq as follows:

·                    The family members are descendants of a single apical ancestor who was a “full blood” Aboriginal woman named Minnie Mayabunganji and her husband Ah Sam, a Chinese immigrant.

·                    They were married in the late 19th century and lived and worked around the settlements and stations of the Gulf Region including Burketown, Woods Lake, Lawn Hill and Touchstone.  They had numerous children of whom five daughters had children.

·                    Ah Sam died in 1919.  Minnie subsequently lived with another Chinese or part-Chinese man, George “Alajay” Sweeney, with whom she continued to live and work in the region until her death in 1943.  They had no children.

·                    The five daughters were Sarah, Bessie, Janie, Lora (or Laura) and Maudie.  All five are deceased.  Their grandchildren now constitute the senior generation of the family.

·                    The family is one of a number of quite prominent families in north-west Queensland descended from Aboriginal women who married Chinese men in the late 19th and early 20th centuries.

·                    The descendants’ claims to Native Title rights and interests are made on the basis of their descent from Minnie who, family members believe, was a Waanyi woman from the Lawn Hill area, born in the early years of European settlement in the region.

·                    Her parents were inferentially born prior to such settlement. 

FIRST EUROPEAN CONTACT

39                                          As is common in Native Title cases, this case has been conducted upon the assumption that circumstances as they existed at the time of first European contact were probably in place in 1788.  The first Europeans in the southern Gulf area were members of an hydrographic survey party led by Stokes.  They visited in 1841.  Other Europeans were Leichhardt’s party in 1845, Gregory’s party in 1856 and Burke and Wills’ expedition in 1860-1.  Parties sent to find Burke and Wills were in the area in 1861-62.  In 1864 pastoral runs were established to the east of Waanyi country, on the Gregory and Leichhardt Rivers and Beames Brook.  Burketown and Normanton were established at that time.  Cattle and sheep were brought overland from the south.  A boiling down works, shipping facilities and a provisions base were established at Burketown.  Various difficulties led to the abandonment of much of this early settlement.  However re-occupation commenced in 1874.  In 1875 Frank Hann established Lawn Hill Station.  Other stations were subsequently established.  Violence between Europeans and indigenous people broke out at this time, leading to significant reductions in the numbers of the Nguburindi people, whose country was to the east of traditional Waanyi country, and the Injilanji people, whose country was to the south.  The Waanyi people moved eastwards and southwards into these areas.

IMPORTANT LAY EVIDENCE

40                                          Although there is much evidence concerning views expressed over the years as to Minnie’s place of origin and language affiliation, the views of two men are, to my mind, of considerable importance.  Those men are Roy Seccin (or Secan, Secon or Second), who is now deceased, and Mr Yuen Hookey.  Mr Seccin’s views were related to Mr Blackwood who interviewed him in 2004.  Mr Hookey gave evidence.  It may assist in understanding these reasons if, at this point, I set out the views expressed by those men.

41                                          Dr Martin has helpfully summarized Mr Blackwood’s account of his conversation with Mr Seccin as follows:

Roy was born and grew up at Lawn Hill station.  He “came out from” Lawn Hill during the “second world war time” and moved across to Cresswell Downs in the Northern Territory …  He believes he is about 86 years old.

He describes Minnie’s children as “all my mob” and as belonging to Lawn Hill.  He says Minnie’s country is Lawn Hill Station, going “back at the gorge”.

Roy knew Minnie and her second husband, Alajay, from when he was a young boy, about a metre in height.  Assuming he is now 86, this would mean he knew them during the late 1920s and early 1930s.

Minnie’s mother was a Garawa or Garawa/Waanyi woman from Calvert River (Tjudidji) in the Northern Territory.  Her Aboriginal or bush name was Boongari.

He describes Minnie as a “full blood Waanyi” through both her mother and father.  She was born at Lawn Hill and her country is Ngumari, the language name for the Lawn Hill station area.  He says Minnie had [an] Aboriginal or bush name, Murrulnjayiyulpa.  This has the same meaning as Bujarda, the name of the carpet snake dreaming for Lawn Hill.

Minnie’s father was a “full Waanyi” man from Lawn Hill who lived through the “wild time” of frontier conflict.  His Aboriginal or bush name was Tjardimadji.  Roy described him as “dinkum Waanyi” of the Budjarda (Carpet Snake) dreaming.  White men called him “Lawn Hill Mick”, “Ngumari Mick” or “Old Mick”.  Roy’s father used to tell Roy stories about “Old Mick”.  He was around in the “real wild days” and the station owners used to chase him and tie him down in order to “quieten him down”.

Although Roy never saw Minnie’s father, for he had passed away long before Roy was born, Roy calls him Ganggu meaning grandfather.

He says Minnie and Opal were “full sisters” with the same mother and father.  Opal was the older of the two.  She married Ah Bow and they ran the garden at Louie Creek.  Opal used to rear up Roy and he can recall she carried him from Louie Creek to Lawn Hill. …

Roy also knew Minnie’s daughter, Sarah, whom he referred to by her language name of Anyimor; she called Roy “uncle”.  He asserted: “All Minnie’s children belong to Lawn Hill”.

He identified three Dreamings associated with Lawn Hill:

1.         Bujarda. Carpet snake…

2.         Gundugundu. “Scrub devil” …

3.         Tjunbarna. “Yellow or desert goanna” …

42                                          Mr Hookey is a Waanyi man and claims to be a Waanyi elder although he may have, to some extent, departed from that claim during cross-examination.  He was born in Burketown in 1935, at a waterhole known as “Hookey’s Hole”. His father was Charlie Hookey and his mother, Ethel Samardin.  She was born at Burketown on 15 May 1914.  Her father was a Javanese man named George Samardin.  Ethel’s mother was “Nellie”.  Nellie’s father was “Jack”.  Mr Hookey’s mother and maternal grandmother were Waanyi people.  His paternal grandfather was Yuen Hook.  His death certificate states that he was born in Canton and died at Cloncurry in 1961, then aged 76.  Mr Hookey’s paternal grandmother was Violet Kim Hoey.  She is also referred to as Violet Darby: see TS 459 l 43.  She was born around 1882 at Lawn Hill Station via Burketown.  Her mother was known only as “Jessie”.  Violet Darby moved up and down the Gregory and Leichhardt Rivers, sometimes staying in Aboriginal camps at Gregory.  Mr Hookey knew her when they both lived in Burketown.  Mr Hookey’s affidavit suggests that it was his maternal grandmother who lived along the Gregory River, but the matter is clarified at TS 480 ll 11-12.  In the proposed amended description of the claim group Violet Darby is to be identified as a known Waanyi apical ancestor.  She was Roy Seccin’s father’s sister.  I will return to that matter at a later stage.  Mr Hookey appears, therefore, to be of Waanyi descent through both parents.  In the applicant’s written submissions, it asserts that there was no evidence that either Mr Hookey’s mother or maternal grandmother was a Waanyi woman.  However he asserted as much in his affidavit and was not cross-examined on that assertion.  The case must be decided on that basis.

43                                          Mr Hookey met Minnie when he was a young boy.  She lived in the hut next door to his, with a man named “Alajay”.  She was crippled.  The huts were made of corrugated iron and had dirt floors. They were about 10 yards apart: see TS 460 l 20.  When he was about seven Mr Hookey was told by both his mother and grandmother that Minnie was Waanyi: see TS 460 ll 45-47.  The reference to  his grandmother is to Violet Darby.  Mr Hookey says that he must have been around that age because he remembers being at school at that time: TS 478 l 19.  His mother said that “Granny Minnie is the same tribe as me – Waanyi. She was up and down the Gregory River.”  This statement may again reflect confusion concerning the connection between Mr Hookey’s family and the Gregory River.  Mr Hookey says that Minnie was a “full-blood” Aborigine and always “talked in language”.  Mr Hookey does not do so.  Mr Hookey called her “Granny Minnie”. 

44                                          In 1944 Mr Hookey moved to Camooweal.  He and his mother stayed with Janie Ah Kit, one of Minnie’s daughters.  This may suggest some familial connection.  As far as he was aware Minnie was still alive at that time: TS 466 ll 36-46.  Around that time he also met Minnie’s daughters, Bessie and Maudie King.  He met Bessie again in the 1950s in Cloncurry.  His mother and Bessie called each other “Waringu” meaning “cousin” or “cousin/sister”.  Mr Hookey returned to Burketown in 1945.  Minnie was no longer there.  He never saw her again: TS 467 l 3.  In fact, Minnie died in 1943. 

SIMONE MAREE ARCHER

45                                          It will also be convenient, at this stage, to deal with the evidence of Ms Simone Archer as such evidence includes a little further evidence concerning Minnie. 

46                                          Ms Archer has been employed by the Carpentaria Land Council Aboriginal Corporation (“CLCAC”) since October 2006, and has been a Native Title Services Officer since July 2008.  She has sworn two affidavits filed on 7 July 2009 and 24 August 2009.  Prior to July 2008 CLCAC was recognised under the Native Title Act as the representative body for the area of North West Queensland known as the Gulf Region which includes the area claimed in the application.  Since that time CLCAC has been funded to perform the functions of a representative body.  The CLCAC has been assisting the Waanyi people in the conduct of this application. 

47                                          CLCAC is aware that Minnie’s descendants assert that Minnie was a Waanyi person, and that they ought be recognised as Waanyi people and included in the claim group.  Since March 1999 the “Minnie issue” has been discussed by the claim group at numerous meetings.  Exhibited to Ms Archer’s affidavits are minutes of meetings, together with correspondence, marriage and death certificates relating to Minnie and her descendants and other documents.  However there seems to be little dispute as to such descent.  The real matter in issue is whether Minnie should be recognized as a Waanyi woman. 

48                                          According to her death certificate, Minnie Ah Kun, died of old age and natural causes on 15 October 1943 at Woods Lake via Burketown, aged about 85 years.  (Other evidence suggests that she may have been in her late 60s.)  There seems to be little doubt that this woman was the person from whom Mr Phillips and his family claim descent, or that they are her descendants.  The certificate also asserts that she was born in Queensland and spent her whole life here.  It is reasonable to infer that the information provided for the purposes of the death certificate came from a person who knew her and her views as to her own birth and life.  The informant is shown as Lora (Laura) Yamaguchi, her daughter.  Details of Minnie’s parentage are not recorded.  Other information in the certificate includes:

·                    that she married Sam Ah Kun;

·                    that her living issue were Sarah, Bessie, Lara (Laura), Jamie and Maudie; and

·                    that two sons and one daughter had pre-deceased her.

49                                          Exhibited to Ms Archer’s affidavit filed on 7 July 2009 is a letter dated 27 June 2001, apparently from Ms Rose Iles, Minnie’s granddaughter and Bessie’s daughter.  Attached is a statement outlining her knowledge of Minnie as follows:

EVIDENCE TO SUPPORT OF MY STATEMENTS

Minnie Mybogunyi was born at Touchstone Huts in 1858 and died in 1943 at Burketown, aged 85 years.  My Grandfather, Sam Ah Choo (Ah Kun) also used the surname Ah Sam.  Mum said Grandfather thought Ah Sam was “easier” to spell and was a more “common” Chinese name for the white man to understand and spell.

PROVIDED BY MRS BETTY O’LOUGHLIN TO PATRICK ANDERSON

GREAT GRANDSON OF MINNIE MYBOGUNYI

NAME:                        Minnie Mybogunyi

PLACE OF BIRTH:     Touchstone Huts (near Nicholson River, Ganggalida Country)

YEAR OF BIRTH:       1858 (approximate)

PLACE OF DEATH:    Burketown

PLACE OF BURIAL:  Burketown

YEAR OF DEATH:     1943

AGE AT DEATH:        85 Years (approximate)

MYBOGUNYI:

Bush name meaning colours of the Rainbow, Black Cockatoo with Red crest.  Storyline relates to almost all living things under the water.

PEARL DAYLIGHT, (Betty’s sister) has the same bushname as Minnie given to her through family.

BETTY O’LOUGHLIN states: that she called Minnie “Aunty”, same as she calls LOUIE MICK and LIMMERICK PETERS “Aunty”.

LIZZY DAYLIGHT is Betty’s Mother.

CLARA FOSTER (Statement; October 2000, Doomadgee) said that Minnie’s English name must have been Minnie Louisa Pearce, (shown on the Marriage Certificate of Minnie’s daughter, Emma Ah Sam), and that the surname PEARCE could come from the Calvert Hills region in the NT.

CLARA’s mother also came from the Calvert Hills region (Goonyiwa way).  This being the case, would make Minnie a Traditional Waanyi woman born in Ganggalida country.

50                                          Touchstone Hut is located to the north of the eastern part of the claim area and about 50 km south-west of Burketown.  Anthony Chong, one of Minnie’s descendants, also suggested to Dr Martin that Minnie was born at Touchstone Hut and was possibly of Nguburindi descent.  The Nguburindi people were the easterly neighbours of the Waanyi.  As I have explained, they were decimated in the violence which followed European settlement.  However there is no real evidence to support Mr Chong’s view.

ANTHROPOLOGICAL EVIDENCE

51                                          It is impossible to do justice to the anthropological research which has been done in this matter without unduly extending the length of the judgment.  Many of the questions which have been addressed and the conclusions reached are not directly relevant for present purposes.  I shall try to distil the relevant aspects of the various reports.

Professor Trigger

52                                          Professor Trigger asserts that available information suggests that Minnie married Sam Ah Choo, a Chinese man also known as Ah Kun and Ah Sam, in 1888.  He was a gardener and cook, known to have worked at Lawn Hill Station where Minnie was employed as a domestic servant.  Two sons of her marriage with Sam Ah Choo were sent back to China when they were young.  Other evidence suggests that only one son was sent back to China.  Both sons died whilst young.  After the death of her husband Minnie lived with a man known as Alajay, or George Sweeney, at Woods Lake near Burketown. 

53                                          Oral history and archival records suggest that Minnie and her descendants have had an historical association with Waanyi country.  She was married at Lawn Hill Station in Waanyi country and lived and worked there from 1888 until about 1916, after which she moved to Woods Lake near Burketown.  A number of her children were born and lived at Lawn Hill Station.  Burketown is in Gangalidda country. There are suggestions that Minnie was either a Gangalidda woman or a Garawa woman.  The Gangalidda and Garawa people claim Native Title to coastal areas lying to the north-west of Burketown.  The Waanyi and Garawa peoples jointly claimed hill country in the Northern Territory.  Waanyi country is to the south-west of Burketown and away from the coast.  There is also some suggestion that Minnie may have been a “Leichhardt Aboriginal”, presumably from the area of the Leichhardt River.  None of the anthropologists gives much weight to this theory.

54                                          Professor Trigger has been involved in research in connection with the Waanyi people for many years.  Between 1978 and 1983, he conducted research for the purposes of the 1982 Nicholson River land claim in the Northern Territory.  In the course of that research Waanyi families residing away from the main Waanyi communities came to his attention, notwithstanding their physical separation.  These included people in places such as Mount Isa and families which had been sent to Palm Island, ending up in Cairns.  However the Minnie family did not come to his attention as a family claiming Waanyi connections.  Professor Trigger accepts that Aboriginal genealogies are commonly incomplete, and that persons are added to them from time to time, as more information becomes available.

55                                          From the early 1990s Professor Trigger was involved in research concerning the Waanyi people in connection with the Century Mine development.  Again, he does not recall the Minnie family asserting Waanyi identity at that time, although other Mount Isa-based families were doing so.  Professor Trigger was also unaware of any discussion amongst Waanyi people as to the possible connection of the Minnie family to them.  In the late 1990s he became aware that Minnie’s descendants were claiming to be Waanyi.  He understood the group’s status to be “unclear”, and that they were not accepted as Waanyi by the broader Waanyi community.

56                                          Professor Trigger has interviewed many people who might have information concerning Minnie and her family.  He spoke to Nellie Chong, whose mother was Minnie’s daughter, Sarah.  Laura (or Lora) Yamaguchi, another of Minnie’s daughters, was Nellie’s aunt.  In discussing the anthropologists’ accounts of their discussions with other people I shall generally refer to those people by their given names.  This may help to avoid confusion as many surnames are shared.  Nellie said that Sarah and Laura were Gangalidda women, as were her mother’s other sisters.  Nellie said that nobody knew for sure where Minnie came from.  Croydon and the Pellew islands (located off the mouth of the Macarthur River in the Northern Territory) had been suggested.  This would be inconsistent with the statement in the death certificate that Minnie was born in Queensland and lived here for all of her life.  Nellie had never heard Laura Yamaguchi identify herself as a Waanyi person.  She only saw Minnie once, during the Second World War, at a location east of Egilabria Station homestead, between Burketown and Doomadgee.  Minnie was staying with her daughter, Laura Yamaguchi.  This was shortly before her death.  George Sweeney had gone to Lawn Hill to work, leaving Minnie with Laura.  She could not walk.  Nellie did not know whether Minnie spoke an Aboriginal language.

57                                          Nellie had previously told Ms Fietz that her mother and her grandmother were Gangalidda women.  Professor Trigger notes that Nellie seemed to consider that Aboriginal identity depended upon the place at which a person was “bred and born”.  She also said that as a child she was not allowed to ask questions of older family members.  She said that her extended family seemed to believe that she knew more about their family history than she in fact did.  It certainly seems that when talking to Professor Trigger, Nellie did not attribute her mother and aunts’ Gangalidda affiliations to their descent from Minnie.  It may be that Nellie’s assertion to Ms Fietz that Minnie was Gangalidda reflected an assumption which she had made.  Professor Trigger’s questioning may have caused her to reconsider the matter.

58                                          In November 2007, Professor Trigger interviewed Clara Bob about aspects of Garawa country.  He also asked questions about Laura Yamaguchi’s family.  Clara did not know the name Mayabuganji, a name attributed by some to Minnie.  However she knew Laura Yamaguchi and Sarah Chong, two of Minnie’s daughters.  Professor Trigger asked whether they were Gangalidda, Waanyi or Garawa.  She said that the women always stayed in Gangalidda country, meaning the Burketown area.  She had never seen Minnie.  She recalled seeing Laura with her husband at Wollogorang Station.  He was a cook there.  Laura could understand Garawa language but did not speak it.  She recalled Laura speaking about Magundi, an area on the west of Massacre Inlet in Garawa/Gangalidda country.  She had not heard her speak of Waanyi country.  Garawa people knew Laura as being “from Gangalidda way”.  Clara’s reply to Professor Trigger’s question seems to have left it unresolved.

59                                          On 16 February 2009 Professor Trigger interviewed Sadie Joe and Pearl Wilbatt, two daughters of Lizzy Daylight, at their home in Warwick in south-east Queensland.  On an earlier occasion Lizzy Daylight had told Professor Trigger a story about four young women who had eloped from Garawa country, one of whom was called Minnie.  The story recurs in various forms in the anthropological evidence.  However, in the end, it seems not to assist for present purposes, and so I will not deal with it in the same detail as have the anthropologists.  Sadie and Pearl identify as Gangalidda.  Ms Fietz had discussed the fact that Laura Yamaguchi had given Pearl the name Mayabuganji, that being Minnie’s name.  Pearl was born in 1946.  In his Nicholson River research, Professor Trigger had also recorded Pearl as having that name, although spelt slightly differently.  At that time he did not record any information concerning Minnie.  I note that in the marriage certificate for Emma, Minnie’s eldest daughter who died in childbirth, her mother’s name is shown as Minnie Mybogungee, although the copy is not entirely clear.  That name seems likely to be a different phonetic spelling of the name Mayabuganji. 

60                                          Pearl and Sadie confirmed a close relationship in kin terms between themselves and Laura Yamaguchi, traced through Pearl and Sadie’s father, Les Daylight.  As described, the relationship is a little difficult to understand.  Pearl and Sadie also recognized Sara Chong, Minnie’s second eldest daughter as kin, although the relationship appeared to Professor Trigger to be different from their relationship to Laura Yamaguchi.  Professor Trigger considers that Pearl and Sadie do not necessarily consider that they were related to all of Minnie’s daughters.  He concludes that both Gangalidda women regard Laura as “a socially close kinsperson”.  However Pearl and Sadie also have genealogical links to Waanyi through their mother, Lizzie Daylight, her father being Murandoo.  Thus they were listed as traditional owners for Waanyi country in the Nicholson River claim. 

61                                          Professor Trigger considered the transcript of a conversation between Mr Phillips, Arthur Peterson and Billy Foster in which Mr Phillips enquired as to whether his grandmother, Bessie, was Waanyi.  Bessie was one of Minnie’s daughters.  I shall set out the conversation at a later point in these reasons.  Arthur and Billy seemed to suggest that she, Mr Phillips’ mother, Mona and Mr Phillips were Waanyi.  Professor Trigger knew both Arthur and Billy.  He considers that, “there is a risk that there was considerable mis-communication between Mr Phillips and the two interviewees.”  Professor Trigger also considers that “the transcript is not a reliable indication that Arthur Peterson and/or Billy Foster were giving a definitive view as to the Waanyi language group identity of Bessie Turner, Mona Phillips or Greg Phillips.”  Whilst I accept that Professor Trigger is much more experienced in communicating with indigenous people than am I, I doubt whether it would be appropriate simply to adopt his opinions as to questions of reliability.  It will be better if I treat his observations as submissions rather than as evidence. 

62                                          Professor Trigger does not deny the possibility that Minnie was a Waanyi woman.  He rather considers the evidence to be inconclusive and suggestive of other possibilities, namely that she was Garawa or Gangalidda. 

63                                          Professor Trigger also gave extensive oral evidence.  In the course of that evidence he indicated that his research had included interviews with knowledgeable members of other language groups such as the Garawa and Gangalidda peoples.  He said that knowledgeable members of Aboriginal groups may reasonably be expected to have knowledge of other groups in adjoining areas.  Such groups may comprise a “regional public” for determining questions such as those with which I am presently concerned.

64                                          At TS 158 Professor Trigger was asked questions concerning the likelihood that the descendants of a Waanyi person who had been absent from Waanyi country for several generations would be recognized as Waanyi upon their return.  He said:

I think Waanyi people understand their law and custom such that if the forebear was accepted as a known Waanyi forebear, then they would not in a formal structural sense have a basis for excluding them or sending them away or denying that they satisfy that criterion of having had a Waanyi forebear.  I think in this type of hypothetical situation where the person is completely unknown, they come from another country, then the matter of them establishing a workable relationship with the Waanyi people would be another matter, but I think perhaps the point of the hypothetical case would be that – it would still be the case that the core criterion would be that the deceased forebear of these arrived persons would either be known – it would be either agreed or not agreed, accepted or not accepted, that they were the issue of an earlier Waanyi person.  My opinion is that that’s the core criterion.  It’s just that we can hypothetically discuss a whole lot of circumstances in which practicalities raise all sorts of issues as to the process. 

65                                          Professor Trigger was then asked about the relevance of formal records such as birth certificates.  He replied:

I think documents are not irrelevant by any means.  I think Waanyi people, young people are definitely at work in the world of documents these days.  I guess if I go back to the core point that if, nevertheless, in light of such documents there were significant mature-age senior Waanyi persons who said, “Well, I just don’t believe those documents, you know, I’m not prepared to accept it because I can’t link that deceased forebear into what I know to be the sort of genealogical set of kinship relations operating among all the forebears,” then the young persons might say, “Well, we can’t really take the documents at face value.”

66                                          At 159 Professor Trigger said, concerning knowledge of traditional stories:

No, I think what I was intending there was to say that the process of evaluating the claim or the assertion would typically take Waanyi people to these questions.  For example, okay, well, where – its not enough just to say that they have been connected to Waanyi country, but which country, which state are they connected to?  How did their deceased forebear fit with our other old people who we know?  So I see these aspects of traditional law and custom as part of the process by which the assertions are evaluated.

67                                          He was then asked:

But is there an element of assessment of the way in which they fit into the current society as well, or is that not relevant?

68                                          He replied:

Well, I think in practice it’s relevant to the outcome.  For example, if we take that example I mentioned of Brad Foster, if he had come along and just made the assertion and then left, I guess people, if they accepted that his deceased forebear was a Waanyi person, then they wouldn’t formally exclude him from membership of the group, but I think the fact that he actually participated substantially in social life and ritual life cemented or confirmed or back-up, reinforced reasons why people in practice then include him socially in the group.  But even if he had gone away, gone back to Palm Island, once that link had been established between the Aplin family, Henry Aplin’s family and Brad Foster’s great-grandmother, you now, I don’t think anybody would then deny him membership in the Waanyi group.

69                                          As will be seen Mr Blackwood challenges certain aspects of the basis upon which, according to Professor Trigger, membership of the Waanyi group is to be determined.  In particular Mr Blackwood challenges the requirement for assertion of Waanyi identity and acceptance by the Waanyi community of such assertion.  Professor Trigger was questioned about these matters at pp 160-161 and said:

I don’t regard them as additional criteria.  I think it’s a straightforward matter that if you’re going to have a process of acknowledgement by which there is collective knowledge established and accepted about a person’s forebears, then processes of assertion and evaluation and acceptance are necessary. 

70                                          He was then asked whether Waanyi law and custom identified the process for recognition of Waanyi descent and said:

Yes.  I think it’s an assumption, much of the time, most of the time, other than when it becomes an issue in the face of a small number of families or, after all, those who might be regarded as – in this case, we are talking about Diaspora people, but those people who might have lived socially more distant from the bulk of Waanyi persons are going to be a minority.  So I think, though, that when the matter is pushed – when the matter needs to be addressed, then, quite clearly, Waanyi people recognize the necessity of the process.  It’s – and I think the kinds of statements that were read out before, in the affidavits, are commonly made whenever you have an issue of inclusion that’s to be debated.  As I say, I saw this very much through the long period of negotiations over Century Mine, because there you had some years of working out who was in and who was out, if you like.  Who could claim to be Waanyi persons, and therefore, in a sense, be written into the agreement as potential beneficiaries of the agreement.  And so in recent decades, I think people have gotten used to this being – this question, this process being prompted by these negotiations.

71                                          He was asked:

But is the dominant consideration the fact of descent, or is it recognition by the process of the fact of descent?  And what if, for example, other members of the community thought that the decision was wrong?  Would that be very upsetting to them, that the traditional processes had produced the wrong result?  Would they continue to assert what they consider to be the right result? 

72                                          He replied:

Yes.  I think, given the obvious qualifications about sometimes you’ve got more forceful personalities than others … but yes I think people making assertions will, assuming it’s important to them, then they will be upset and they may well continue to make the assertion. 

73                                          He was asked:

So it’s the actual fact, rather than the process’s opinion of the fact that’s important? 

74                                          He replied:

I think the end point is the fact itself, and the importance of the process comes to people’s mind there is articulated in the course of difficult cases. 

75                                          At TS 169 he was asked whether the criteria of assertion, self identification and acceptance were independent criteria.  He said:

Well, look, I think we can go either way in our description of these processes.  Especially where the matter is not of public issue it tends to be wrapped up as part of the same – as a process which leads to acceptance of – of a person being descended from a known forebear.  In circumstances where the matter becomes for public debate, that we necessarily see the processes of assertion, you know, separable, identifiable in public life, in social life.  So I don’t want to harp on poor old Henry Aplin, but to go back to him again, if it were the case that somebody challenged his – whether or not he had a Waanyi forebear, I would think – I would expect to see him asserting that and it would become an identifiable part of the process.  And, indeed, as would the aspect of whether or not his propositions were going to be accepted.  So I see those elements becoming identifiable when we have cases that are not agreed upon in a straightforward way.

76                                          Mr Blackwood places some significance upon the fact that the Minnie family was included as a descent group in what is described as “the Waanyi Aboriginal Land Claim Association” (“WALCA”).  He asserts that such inclusion demonstrates acceptance by the Waanyi people of the Minnie family as being Waanyi.  However Professor Trigger understands that WALCA was not fully representative of the Waanyi people.  It was rather a sub-group of the larger group.  There had been disputes within the larger group as to whether to proceed with a Native Title claim or to make a more limited claim over Boodjamulla and Lawn Hill National Parks.  He does not consider that inclusion in WALCA necessarily demonstrates acceptance of the Minnie family as Waanyi by the wider Waanyi community.  Given Professor Trigger’s close association with Waanyi society, I accept that opinion.

77                                          Professor Trigger considers that some aspects of Mr Seccin’s statements to Mr Blackwood concerning Minnie were inconsistent and suggestive of confusion.  One such matter was Mr Seccin’s assertion that he referred to Minnie’s father as “Kangu” or “Gangu”.  I accept Professor Trigger’s opinion that this may suggest an inconsistency.  However there has been no opportunity to explore the matter with Mr Seccin.  It does not seem to me to detract from the main thrust of Mr Seccin’s views concerning Minnie’s identity.  Professor Trigger’s comment also has the weakness that it inevitably depends upon certain assumptions as to marriage in accordance with the skins system. 

78                                          Professor Trigger suggests that if Minnie’s mother came from Calvert Hills she was probably Garawa rather than Waanyi.  He points out that the bush name given to Minnie by Mr Seccin was “Murrulngayiyulpa”.  This name has not otherwise been attributed to Minnie.  Professor Trigger suggests that it may be a mistaken reference to Violet Darby’s bush name “Munurangayupa”, suggesting that Mr Seccin may have been referring to her.  Professor Trigger says that he had not previously heard of Lawn Hill Mick.  He also notes that the suggestion that Minnie was from Lawn Hill seems inconsistent with other suggestions that Minnie’s parents were located in Gangalidda country.

79                                          These criticisms all have some validity, but the clear references to Minnie, her second husband and daughter Sarah convince me that Mr Seccin was speaking of Minnie, the person who is the focus of the present inquiry.  Once that fact is accepted, these criticisms appear as possible inconsistencies, not necessarily detracting from the major theme of Mr Seccin’s assertion.  Evaluation of Mr Seccin’s views must take into account the fact that those views have not been tested in cross-examination.  Professor Trigger’s comments may be relevant to such evaluation.

80                                          A further criticism of Mr Seccin’s version, made in submissions, is that at a meeting of a “steering committee” held on 11 April 2002, he did not support the Minnie family’s claim.  The matter was certainly raised at the meeting.  The relevant passage of the minutes is as follows:

MN      …

There are some problems with the definition of the Group.  Discrepancies in that there are a few people who were extra.  There is only one family – the Minnie family – who have not been accepted.

BF       The family has been pointed in the right direction by the CLC and the Waanyi elders.

MN      It may be a good idea to confirm the situation formally.

PF        Gave a summary of the family tree, who is the Minnie family on the available known information including information provided to the Steering Committee by members of the Minnie family.

General Discussion and Consensus that the Minnie family are not a recognized Waanyi family but they should be encouraged to come up and talk to the old people to find out where they are really from.  People generally agreed that they were ‘from Burketown’ and that Bill Sewter, April Peters and Eva Gilbert would be the appropriate people to talk to to find out more.

BF       We will do up a letter from the Waanyi Steering Committee to the family pointing out this position formally.

MN      They can still claim historical affiliation.

DG       A lot of people never get away from where they are born and may have historical links to those places.

MN      The historical affiliation is like a safety net claim, i.e where the traditional people have died out.  All you need to prove is that you or your ancestors lived in the regional for a substantial period of time.  In this case, all of the neighbours could potentially put in a claim, but they haven’t.

TH       One old lady told me that Gangalidda people and Waanyi people never used to mix until a lot later on, in much more recent times.

The letters in the left-hand margin are the initials of the speakers.

81                                          It may be that Mr Seccin’s partial deafness, referred to elsewhere in the evidence, made it difficult for him to participate in the meeting.  It is also possible that the meeting was conducted in such a way that he was discouraged from speaking out, as Mr Hookey suggested was the case at another meeting.  The reason for rejecting the Minnie family’s claim is not clear.  It seems that those in attendance, or some of them, accepted that the family was “from Burketown”.  Whilst that was true of Minnie’s daughters, or most of them, it was not true of Minnie.  I am not persuaded to reject Mr Seccin’s version of events by virtue of his failure to speak out at the 2002 meeting.

82                                          Professor Trigger was cross-examined at great length.  At TS 311-312, the following passage appears:

But it would also be your observation of dealing with native title claim groups that much of the conflict that occurs within the group about who is included in the group and who is not results from people believing that they know where other members of the clan group are from and believing that they know all the background of everybody else’s genealogical charts when, in fact, the genealogical data says something different?  ---  Well, I certainly agree with the first proposition that, by and large, a researcher is dealing with an oral tradition and so it is a matter of belief or conviction on the part of people as to the particular connections to lands and to genealogical deceased forebears.  What was the second part of the question?

That those beliefs cause the conflict about whether groups should be included or not because people tend to hold fast to their belief from what they know about where people – where they know where people are from in contrast to what their genealogical data might say? ---  Well, the genealogical data comes from people’s beliefs.  It can, as well, come from documentary sources where they’re available and there can be difference between what the documents show and what people’s beliefs are and the researcher has to do the difficult job of resolving that and there are a couple of academic papers that have been written about that difficulty.

83                                          This is, I believe, the crux of the present problem, namely the meaning of the requirement that a member of the claim group be a descendant of Waanyi ancestors or, as it is put in the application in its present form, a biological descendant of a known Waanyi person.  In this case the parties have tended to assume that biological descent is, for present purposes, an ascertainable fact, capable of being known with certainty.  However, in the absence of DNA or other scientific evidence, it is more likely to be a matter of belief or opinion, necessitating a determination as to whose belief or opinion is relevant.  I will return to this matter.

84                                          In cross-examination Professor Trigger did not significantly depart from the opinions which he had previously expressed.  I do not understand there to be any real challenge to the factual basis for those opinions.  Indeed, as I have said, the other anthropologists rely substantially upon his research and that of Ms Fietz.

85                                          Concerning the recorded conversation between Mr Phillips, Arthur Peterson and Billy Foster, Professor Trigger said in re-examination at TS 325:

I think, actually, the three experts may be in agreement on this – although Mr Blackwood would have to indicate – that it is actually a difficult tape to follow.  It’s an audio recoding.  These sorts of recordings – if you haven’t been present and you’re not familiar with the language being used by the interviewees – are not very – not always clear.  This tape – there are parts where it’s clear enough – where what’s being said – but I – my own view is, I can’t rely on this tape as a binding or definitive document indicating a view that Arthur Peterson would have held to subsequent to the conversation.  It was one single conversation.  The – Mr Phillips, at the time, was a young man seeking to ask the two old guys about – about his identity and so on.  Now, I would say that in these circumstances there is often an etiquette of accommodation.  I mean, Mr Peterson and Billy Foster didn’t say to Greg Phillips when he came and asked the questions – you know, “No, you go away.  We don’t want to.” – “Who are you?” sort of thing.  Aboriginal people are often more inclined, as a form of politeness, to accommodate a person’s query and to deal with them in that way.  I mean, there are some parts of the tape where, for example, Arthur Peterson answers, “Yes”, to a question or a proposition from Mr Phillips and, really, to put it in the terms that – I know this is sometimes spoken about, I think in legal matters – there is a risk of concurrence.  There is a risk of a degree of gratuitous concurrence with a proposition.  You know, “So that’s my name, is it?”  Well, you know, and the answer might be, “Yes.”  I can – I don’t know how much detail we want to go to here but I’ll keep my comments brief. 

86                                          Again, I doubt whether I should discount evidence of the conversation simply upon the basis that Professor Trigger thinks that there may be a risk of gratuitous agreement with a proposition out of sensitivity for Mr Phillips’ feelings.  I must proceed upon the basis that both Mr Peterson and Mr Foster were willing to assert, at least on the occasion in question, that the Minnie family was of Waanyi descent.  I keep in mind the possibility of gratuitous concurrence in assessing the evidence in the context of all of the other evidence in the case.  However it seems to me that it would have been quite “unaccommodating” of Mr Phillips for these men simply to have misled him.  He was, at the time, a quite young man, trying to find out about his family.  This case demonstrates the seriousness of that matter to Aboriginal people.

Dr Martin

87                                          Dr David Martin is also an anthropologist.  His evidence relies heavily upon the work done by Professor Trigger and Ms Fietz.  He focusses on two particular aspects in assessing the available evidence concerning Minnie, her descendants, their connection to the claim group and their connection to the claimed country.  They are:

·                    the operation and significance of the “skins” system in, and to Waanyi social structures, and the way in which Waanyi people are traditionally connected to their lands; and

·                    the documented movement of the Waanyi people eastwards from the end of the nineteenth century, and traditional succession by them to the lands previously possessed by other peoples.

88                                          Dr Martin observes that the Waanyi and Garawa skins system is broadly shared within a regional cultural bloc which includes the Nguburindi and Injilarija (also Injalanji) peoples as explained by Trigger and Fietz.  Dr Martin gives details of that system and observes that “[t]racts of country are associated with particular semi moieties or ‘skins’.”  Through the operation of the skins system certain parts of the present claim area were obtained by Waanyi people from Nguburindi or Injilarija people.  I take this to mean that the shared skins system resulted in inter-marriage between Waanyi people, Injilarija people and Nguburindi people, leading to people from more than one of those three groups having interests in certain areas.  I have previously mentioned the movement of the Waanyi people eastward from their heartland, primarily in the Northern Territory, but extending into Queensland, leading to their eventual occupation of land previously occupied by the Nguburindi (to the east) and the Injilarija (to the south). 

89                                          Based upon the work done by Trigger and Fietz, Dr Martin concludes that there is a “core” of Waanyi families with connections to countries in both the western portion of the Waanyi claim area (mostly in the Northern Territory) and also in the eastern portion of the claim area (in Queensland).  The claim area includes Lawn Hill country, Louie Creek country, Musselbrook-Elizabeth-Accident Creeks country, Riversleigh country and Gregory River country.  I shall subsequently consider the evidence as to the parts of the claim area which were within Waanyi traditional country prior to the eastward migration.  Dr Martin considers (also based on the work of Trigger and Fietz) that two Waanyi families are identified as having connection only to country in the west, that is the area lying mostly in the Northern Territory, whilst four families (one of which is the Minnie family) claim connection only to country in the east of the claim area and no identified country in the original Waanyi heartland to the west.  For reasons which appear hereafter, I consider that in one respect, this view may be based upon a misunderstanding of the work done by Trigger and Fietz.  As I understand it, Dr Martin implies that traditional owners are likely to have associations with land in both the western and eastern parts of the extended area occupied by the Waanyi people, perhaps reflecting geographical associations before and after their eastern migration.  Association with only the eastern parts of Waanyi country might suggest only more recent association, perhaps “historical” rather than “traditional”.  However Professor Trigger considers that Waanyi membership depends only upon demonstrated relationship to one area of Waanyi country.

90                                          Dr Martin interviewed many Waanyi, Garawa and Gangalidda people in seeking information concerning Minnie and her family.  It will be helpful if I summarize his evidence as to those interviews.

91                                          Dr Martin spoke to Betty O’Loughlin in Mount Isa.  She is the daughter of Lizzie Daylight who was the daughter of Murandoo the “King of the Waanyi”.  Lizzie identified as Gangalidda through her mother.  Lizzie was a very senior Gangalidda person (although Fietz apparently described her as Garawa).  Betty identifies as a Gangalidda woman.  She was born at Burketown and knew Laura Yamaguchi.  She said that the Waanyi originally came east from Brunette Downs and Najabara on the Nicholson River, “that home for Waanyi”.  When asked about Minnie, Betty O’Loughlin referred to the many Aboriginal women who had married Chinese men, including some amongst her own Gangalidda grandmother’s people.  She said that the Chongs in Burketown, including Jack, Tommy and his sisters (the children of Sarah Chong) had never classed themselves as Waanyi.  Her mother knew the people from Lawn Hill.  They had never heard of Minnie.  This may seem a little curious in view of other evidence that Minnie worked and was married at Lawn Hill, and that some of her children were born there.  Perhaps Lizzy meant that the Lawn Hill people had not “heard of” Minnie as a Waanyi woman.  In any event, the assertion seems a little too remote to be of much use for present purposes.  Betty said that old Darby and his family were the real Waanyi people who belonged to Lawn Hill.  Those from Musselbrook included Jack and Mick Diamond.  Those from Gregory included the Peter Bell mob.  The Rankin people included Polly (grandmother of Nancy George) and Sally O’Keefe.  Those from Riversleigh included old Ruby, Betty and old Tommy Doolan.

92                                          Betty said that she did not know where Minnie came from, but that Eva Gilbert would know.  She said that all of “those old ladies” (apparently meaning Minnie’s daughters) grew up at Woods Lake outside Burketown and belonged to Burketown.  Laura Yamaguchi never “talked about Waanyi” and spoke Gangalidda language.  At some stage Sarah Chong, whose bush name or nickname was Anyimor, lived at Lawn Hill.  Betty had heard that Minnie came from Calvert Hills.  She said that she had heard this from Arthur Anderson at Batchelor College in the Northern Territory, and that it had been stated “in a book”.  She said that there had been a number of women in the region named “Minnie”, including Gladys Goodman’s mother who came from Calvert Hills. 

93                                          Dr Martin also spoke to various members of the Minnie family.  Mr Phillips told him that his grandmother, Bessie Turner (one of Minnie’s daughters) had always told him that they were Waanyi and about Waanyi country.  She was born at Louie Creek but later moved to Burketown.  Mr Phillips told Dr Martin of his conversations with Arthur Peterson and Billy Foster.  Details of this conversation appear later in these reasons.  Eddie Jacobs’ mother, who lived at Camooweal, always claimed Mr Phillips and his family as Waanyi.  Janie Ah Kit (Bessie’s sister) also said that they were Waanyi.  I have previously mentioned Mr Hookey’s apparent connection to Janie.  Dr Martin met Mona Phillips, Mary Cotterell, Margaret Body, Doreen Sweeney, Jean Rankin and Frank King.  They suggested the names of other people to whom he should speak.  At a subsequent meeting, which did not involve Mr King, these people indicated that they had always identified as Waanyi.  Mona and Mary’s mother, Bessie, had gone to Burketown to meet Sarah Chong and Laura Yamaguchi.  They also visited Escott Station and the surrounding area.  They were told it was their country.  Dr Martin understands that area to be associated with the Gangalidda people rather than the Waanyi people. 

94                                          Dr Martin also spoke to Doreen George who claimed to be a Garawa woman.  Her father was Devil Devil Dreaming.  She lived at Burketown whilst her husband was running stock at Escott Station, possibly during the 1960s.  Sarah Chong was then in Cloncurry but Nellie, Louie, Jack and Tommy Jnr were in Burketown.  Laura Yamaguchi had a son, Arthur.  Doreen George said that Laura and the others were not Waanyi but Gangalidda.  They spoke Gangalidda “all the time”.  She had never heard them, or anyone else say that they were Waanyi.

95                                          Dr Martin spoke to Roy Dickson, Kathleen Shadforth and her son, Archie Shadforth.  Mr Dickson is an elderly and quite infirm Garawa man.  Kathleen Shadforth is his sister and Arthur Shadforth, her son.  Mr Dickson is considered to be a very knowledgeable person concerning regional traditional law and country, as is Kathleen Shadforth.  The Minnie family members in Mount Isa had referred Dr Martin to her.  Mr Dickson said that Laura Yamaguchi and her siblings were at Woods Lake, outside Burketown, when he was a young boy, perhaps twelve or thirteen years old.  They had a Chinese father.  No “full descent” Aboriginal people lived at Woods Lake, only those of Aboriginal-Chinese descent.  Sarah Chong was called “Granny Lake” and was Gangalidda.  Their country was around the lake. 

96                                          Kathleen Shadforth said that Laura’s mother was a “black one”, meaning that she was not of mixed descent.  She had died by the time Kathleen arrived at Burketown from Calvert Hills.  She considered the family to be Gangalidda.  Laura Yamaguchi took her to Lightning Dreaming near the old Burketown race course and said that it was her country.  That place is in Gangalidda country.

97                                          Dr Martin spoke to Maria George, an elderly lady.  Her mother was Gangalidda and her father, Garawa.  Her mother’s father was Gangalidda and was called Lawn Hill Albert.  When she was a young teenager, she stayed for a few years at Woods Lake.  She knew Laura Yamaguchi and others there.  She said that Laura spoke Gangalidda and was “full Aboriginal”.  Laura was, of course, part Chinese.  Dr Martin thought that Maria may have been confused.

98                                          Dr Martin spoke to Jack Hogan who is a senior Waanyi claimant, born in 1948.  His country is on the eastern side of Waanyi country in Lawn Hill.  He did not remember Mona Phillips but knew Laura Yamaguchi.  He had also met Sarah Chong but could not remember Janie Ah Kit.  Laura used to speak Gangalidda and a little Garawa.  She did not say anything about Burketown being her country.  He thought that Laura’s mother was then still alive.  That is inconsistent with the recorded year of Minnie’s death, 1943, before Mr Hogan’s birth.  In a subsequent conversation with Mr Hogan, also involving a man called “Bronco”, Dr Martin was told that Laura Yamaguchi spoke Garawa.

99                                          Amelia Booth was another person to whom Dr Martin was referred by the Minnie family members in Mount Isa.  She had lived in the Doomadgee dormitory from 1942 until 1950 when she married.  She then lived in Burketown and knew Laura Yamaguchi, Bessie Turner and Maudie King.  She had seen all three of them in Cloncurry.  She expressed the view that Laura and the others were “Waanyi tribe”.  She said that someone whom she could not remember had told her that Laura’s mother had lived around Lawn Hill.

100                                       Anthony Chong was born in 1973.  He is the son of Kevin Chong and the grandson of Tommy Chong Jnr.  Sarah Chong was his paternal grandfather’s mother.  Through his mother Janet, a daughter of George Hookey, he has Waanyi/Garawa connections.  He told Dr Martin that he understood that Minnie had lived most of her life at Touchstone Hut on Punjaub Station, and that she had come from that area.  Anthony had heard from an old woman that Minnie was Nguburindi from between Lawn Hill and Gregory.  He considers that “the key lies around the Punjaub/Touchstone area”.  His father was born at Touchstone and always lived there, not far from Rubber Vine Creek.  He said that this possible Nguburindi connection would discredit the Waanyi claim to succession to the area, and would require the wider Waanyi group to accept them (the Minnie family).  Touchstone Hut is presently in Gangalidda country but is close to the former boundary between Gangalidda and Nguburindi country.

101                                       This theory might well explain the uncertainty about Minnie’s background.  Without wishing to speculate, it is easy to imagine that a remaining descendant of the former traditional owners of land annexed by the Waanyi people would have been a potential source of embarrassment to them, and would again be embarrassing at the present time.  However, whilst it is an insightful theory, there is little or no evidence to support it.  

102                                       Anthony said that the “Top End” Waanyi migrated east to Corinda.  Those from around Punjaub moved to Burketown, and those from the South Nicholson moved to Lawn Hill Station, Riversleigh and Gregory.  He said that the Ah Kit family and the King family had always identified as Waanyi.  He heard Frank King say so at the meeting concerning the proposed Century Mine in 1996 or 1997.  Nobody raised any objection to the claim.  Some years ago, Anthony had a conversation at Doomadgee school with Michael Booth, a Gangalidda man, now deceased, and Murandoo Yanner.  Michael told a story of four Garawa women who came across to the east and married four Chinese men.  One was said to be Murandoo’s great-great-grandmother and one was Minnie’s forebear.  As I have said, various versions of the story appear in the anthropological evidence.  Anthony said that April Peters always claimed that Minnie was from the west and was Waanyi/Garawa.

103                                       Alan Jupiter told Dr Martin that Laura Yamaguchi and her siblings always spoke Gangalidda.  Dr Martin also spoke to Gloria Friday, Eileen Rory and Charlie “Ringo” Jack.  They provided no additional information.  At Doomadgee Dr Martin spoke to Geraldine and Lois Johnny and Ted Pluto who also added no further significant information.  Rodney Walden is a Gangalidda man, born at Burketown.  He said that Laura Yamaguchi spoke Gangalidda.  Her sisters, including Sarah, were Nulaynma skin.  He called them “mother” because he is Yagamari skin.  Richard Brooktail understood that Laura was Gangalidda.  Eric King said that Laura Yamaguchi was Gangalidda, adding that “All that mob there Burketown Gangalidda”.

104                                       Tom O’Keefe was one of the persons to whom the Minnie family had referred Dr Martin.  He is a Waanyi man.  He knew Laura Yamaguchi when he lived at Burketown and worked with her son, Arthur.  He and Arthur had the same “skin” and so he called Laura “mother” and visited her.  He thought that she and “the others” were from Burketown.  She spoke Gangalidda.  He did not think that they were Waanyi.  He thought that Laura’s mother had come to Burketown from further west.

105                                       Eva Gilbert is a Gangalidda woman, born in 1933.  She remembers Minnie’s daughters.  Her own mother was Gangalidda, and she considers “those old ladies” to have been Gangalidda.  She heard Laura speak Gangalidda.  She said that if Minnie went to Lawn Hill it was because she was taken there by “that old Chinaman”, presumably her husband.  She called Minnie’s daughters “Granny” because of their skins.  Len Cubby remembered Sarah Chong and Laura Yamaguchi.  He said that he understood them to be Gangalidda.  He thought that Mona Phillips might be Gangalidda.  The Minnie family had also referred Dr Martin to Daisy Smart.  She offered no real assistance. 

106                                       Clara Foster said that Laura Yamaguchi was Gangalidda, and that Laura had told her this herself.  She did not speak Gangalidda language or any language other than English.  Although previous researchers had attributed to Clara the view that Minnie’s bush name was “Mayabuganji”, she said that she did not know of any bush name for Laura’s mother.  She said that other Gangalidda people had not taken much notice of Laura.  This may have had something to do with her being of mixed race.  I observe that it may also have reflected doubt or uncertainty concerning her claim to be Gangalidda.

107                                       Ada Walden is a daughter of Jack Chong, the son of Sarah Chong.  Ada’s parents were not together when she was born.  She and her mother went to Mornington Island.  She mainly claims country on her mother’s side.  She and her older siblings were brought up on Corinda, a station in Waanyi country.  Her mother always said that Ada was Waanyi through her.  When she was 10 to 12 years old her father would take her camping at weekends.  She remembers seeing both of her grandmothers at that stage but does not have a clear recollection of them.  She is certain that Mona Phillips “and the others” are Waanyi.  She does not think that they could be anything else.  They had no connection to the Gangalidda people except for the fact that “those old people”, presumably Minnie’s children, lived in Burketown.  She said, “Our grandmothers were all over there around Lawn Hill and met with those Chinese gardeners.”  She spoke to her father’s sister, Nellie Chong, about Minnie.  Nellie said that those families (presumably the Minnie family) had connections to her family.  Ada never heard her grandmothers, Nellie Chong and Louie Booth, say that they were Gangalidda. 

108                                       Ada said that she had been talking to Clara Foster and Eva Gilbert on the previous day when they had attended a Gangalidda Land Council meeting in Burketown.  Clara had said that she thought that “they” were Waanyi.  Both Clara and Eva said that they could not see that old Minnie and Laura could be anything but Waanyi.  This seems to be inconsistent with Clara and Eva’s own statements to Dr Martin.  Ada said that Teddy Chong, George Chong and Stanley Chong all thought that they were Waanyi.   Ada is, of course, a member of the applicant group in these proceedings.

109                                       In Burketown Dr Martin spoke to Murandoo Yanner.  He has substantial local knowledge.  His family is connected to other families of Chinese descent in the Burketown area, including the descendants of Minnie.  Mr Yanner said that there is a “Lawn Creek” in the south of the Barkly Tableland in Wakaya country.  He thought that Minnie may have come from there with a Chinese man and ended up in Burketown.  This may have led to the view that she was from Lawn Hill.  He said that Laura Yamaguchi could speak Gangalidda and another language which he could not identify.  She was “pretty tribal”.  He said that the Garawa people did not visit Maudie King as they would have done if she were from their family.  Mona Phillips and her family did not visit Laura.  Edna Kum Sing, the daughter of Janie, and thus the niece of Maudie King, always claimed to be Waanyi.  Johnny Yanner told Dr Martin that Sarah Chong, Laura Yamaguchi, Bessie Timms and Janie Ah Kit were all born around the Riversleigh/Lawn Hill area and so were Waanyi.  He used to go fishing with Laura Yamaguchi.  She spoke English but occasionally would speak in “language”.  He said that he was pretty sure that Laura, Maudie and the family were not Gangalidda. 

110                                       Dr Martin generally accepts the description of the qualifications necessary to be a Waanyi person, as outlined by Professor Trigger, and as appearing in the proposed amendment to the description of the claim group.  At paras 108-109 of his report he concludes that although Waanyi laws and customs have undergone transformations and adaptations since the assertion of British sovereignty, it is reasonable to infer that such description reflects general principles of group membership which would have been in operation at that time.  In justification of this assertion, Dr Martin concludes at para 109 that:

This is because in relation to the first principle [identified above] descent continues to be the key mechanism by which membership of the group is established, albeit through cognatic descent in contemporary circumstances rather than primarily patrilineal descent in the past.  In relation to the principle of self-identification, which implies choice, while as noted above choice as to identity would not have played the equivalent role in the past, it is in my opinion this constitutes an adaptation to historical circumstances.  With regard to the third principle, that of recognition by the wider society or community, recognition by the relevant group or society in order to be a member of it would surely have been as logically necessary in the past as it is today.

111                                       Dr Martin then considers Minnie’s ancestry.  First, he considers the identity of her father.  The relevant information is primarily that provided to Mr Blackwood by Roy Seccin.  I have already set out that information.  Although Dr Martin accepts that Mr Seccin was a respected Waanyi elder and a “key informant with previous researchers”, he nonetheless seeks to test the above information by reference to other matters, particularly the references to “skins”.  At paras 117-118 he concludes that Mr Seccin’s account is consistent with his own understanding of the skins system, and seems to support his (Mr Seccin’s) views concerning Minnie’s affiliation, but continues:

However, despite these consistencies, I would not give any particular weight to this information.  Firstly, except that Roy’s account is consistent with other versions which have Minnie’s mother coming from the Calvert Hills area of the Northern Territory, it is something of an “outlier”; given Roy Seccin’s seniority and status in the region, it is hard to imagine why such specific and definitive information is not part of wider discussion and knowledge amongst other Waanyi people, as is the case for “core” Waanyi families.  Neither Jack Hogan nor Jack Green, who are noted by Peter Blackwood as having been present when Roy Seccin provided this information, raised it with me in my enquiries of them.  I subsequently asked Jack Green as to what he remembered of the account provided by Roy Seccin, and he informed me that he must have been away from the discussion at the time as he did not recall it.

112                                       Mr Blackwood concedes that he was in error when he said that Mr Green was present at his interview with Mr Seccin.  In fact he had spoken to him on the previous day.  Mr Green had said that he understood Minnie to be Waanyi but that Mr Seccin would “know for sure”. 

113                                       One can only speculate about the fact that other members of the Waanyi community are not aware of Mr Seccin’s views.  He may have disclosed the relevant information to others who have died or have not been questioned about the matter.  It may be that he was never asked about Minnie, given the fact that she died in 1943 and seems not to have had close contact with many Waanyi people other than at Lawn Hill and in Burketown.  In the absence of any suggestion that Mr Seccin was in ill-health so as to be unreliable, or that he had a motive for lying, I see no reason to doubt that he accurately communicated his views to Mr Blackwood.

114                                       Dr Martin observes that if Opal and Minnie were sisters, that fact would throw doubt on the proposition that Minnie was Waanyi.  This doubt, it is said, arises from the fact that Opal was born at Brunette Downs whilst Minnie was born at Calvert Hills.  However there is considerable doubt about Minnie’s birthplace, even if one accepts that Opal was born at Brunette Downs.  It is also possible that Mr Seccin was in error in identifying Opal and Minnie as sisters.  In my view the importance of his evidence is the clear identification of Minnie, her second husband and her daughter, Sarah, his association of her with Lawn Hill and his identification of her as Waanyi.  It cannot be seriously suggested that he was speaking of somebody other than the subject of the present inquiry.

115                                       Dr Martin also queries the suggestion that Minnie and Opal were full sisters.  He considers the proposition to be unlikely, given that Minnie’s mother is said to have come from Calvert Hills whilst Opal was said to have been born at Brunette Downs, some distance from Calvert Hills.  I doubt whether this matter should be treated as being of much significance.  It is difficult to assess the extent to which, at the relevant time, it was likely that sisters would be born at different locations.  Betty O’Loughlin referred to Brunette Downs as being in Waanyi country although other evidence may have suggested the contrary.  Dr Martin then observes that the consistency of the skin names, semi-moiety and affiliations and dreamings in Mr Seccin’s account:

… could be read as evidence that his account is plausible as a statement of fact, or it could be read as resulting from … post-hoc rationalisation by which important cultural categories were being mapped onto contemporary social and political processes … .  That is, a man as senior and knowledgeable as Roy Seccin, including about the cultural geography of the Lawn Hill area, would have provided information concerning “skins”, Dreamings etc which was at the very least internally consistent, but cast to give cultural legitimacy to a particular account.

116                                       This seems to mean that Mr Seccin, having stated that Minnie was a Waanyi woman, then treated her and her parents as such, attributing to them characteristics which were consistent with the assertion, although not actually within his knowledge.  However that approach offers no explanation for Mr Seccin’s having made the assertion that Minnie was a Waanyi woman, if in fact he did not understand that to be the case.  Perhaps the argument leads only to the conclusion that Mr Seccin considered that Minnie was a Waanyi woman but, having no demonstrated basis for that opinion, made assumptions which were, in effect, based upon his belief.  That theory may be an available explanation, but it is a little difficult, at this point in time, to determine whether it was the case.

117                                       Dr Martin considers certain historical matters which, in his view, lead to the conclusion that Lawn Hill Mick, if he was Minnie’s father as asserted by Mr Seccin, was not Waanyi.  The argument is based substantially upon the timing of the eastward migration of the Waanyi people.  As previously mentioned, the country originally associated with the Waanyi people at the time of the assertion of sovereignty was:

an extensive area broadly speaking running from the headwaters of the Nicholson River in the Northern Territory south to around Carrara Range and Carrara Creek, and eastwards to the foot of the hills marking the eastern extremity of the Barkly Tableland.  These include the Constance Range and the Edith Range in the area of Lawn Hill Station in Queensland.

118                                       Dr Martin notes that contemporary Waanyi people assert traditional connections with lands to the east of these ranges.  He suggests that the plains country running eastward from Lawn Hill Creek to the middle of the lower reaches of the Gregory River was originally the country of the Nguburindi people.  He also asserts that the area centred on the gorges along the upper reaches of Lawn Hill Creek and, possibly, the upper reaches of the Gregory River was originally part of Injilarija country.  As I have previously observed, the Waanyi people traditionally consider themselves to be hill people in contrast to their Ngburindi neighbours to the east whom they regard as “plains, channel and running water people”.  Dr Martin also notes that Tindale placed the eastern extent of Waanyi country to the west of Archie Creek and close to Lawn Hill homestead and the escarpment in the region of Lawn Hill Gorge.  Although the copy of Tindale’s map at para 122 in Dr Martin’s report is a little unclear, I have examined an original.  The map places the Lawn Hill homestead just within traditional Waanyi country. 

119                                       Dr Martin then discusses the circumstances which led to Waanyi succession to areas previously occupied by the Nguburindi and Injilarija peoples.  In effect, the Waanyi moved into those areas following the killing of many of the previous occupants by European settlers and the departure of others in the face of such violence.  Dr Martin suggests that this violence occurred between 1876 and 1896, and that large numbers of Waanyi people were moving eastwards from the 1890s in search of European commodities such as tobacco, a secure food supply and to seek protection from the violence which characterized the period.  From this information Dr Martin infers that the “major impacts of violence and disease on Injilarija and Nguburindi people would not have taken place until around the mid 1860s at the earliest, and in all likelihood not until the mid-1870s, particularly around the Lawn Hill area.”  At para 135 he concludes that:

•           firstly, the evidence suggests that the area around the Lawn Hill Station homestead and the Lawn Hill Creek Gorge (that encompassed by the areas designated “Lawn Hill Country” and possibly also “Louie Creek Country” in the map in Appendix D of Trigger and Fietz 2003) was not originally Waanyi country but that of Injilarija (Injilarji) group;

•           secondly, the evidence suggests that the area east of here including the mid-reaches of the Gregory River was not originally Waanyi country but that of Nguburindi-affiliated groups; and

•           thirdly, Waanyi would not have displaced the original people of these areas, or succeeded to them, until they had consolidated their moves south and eastwards around the 1890s.

120                                       In this context Dr Martin also refers to his earlier observation that most Waanyi families with connections to land in the east also have connections to land in the west, a characteristic which he considers the Minnie family to lack, apparently suggesting that her family had no pre-migration association with Waanyi lands.  However Professor Trigger seems to accept that a Waanyi family may only have connection to one area in Waanyi country.

121                                       Dr Martin then seeks to identify the likely birth date of Minnie’s father.  This exercise is based, firstly, upon identification of the birth dates of Minnie’s eldest and second eldest daughters.  Her eldest daughter, Emma, was born in 1890 and married in 1906.  Her second eldest daughter, Sarah, was married in 1908 when she was 16, suggesting that she was born in 1892.  Minnie’s birth date is uncertain.  Dr Martin assumes that she would have had her first child when she was aged somewhere between 16 and 20, suggesting a birth year between 1870 and 1874.  Of course, her death certificate shows her as having died in 1943, aged about 85, suggesting a birth date of 1858.  Mr Blackwood demonstrates that there is reason to doubt that date.  Dr Martin agrees.  Dr Martin then opines that in that era, an Aboriginal man was not likely to have married and had children until he was in his mid 30s-40s, suggesting that Minnie’s father was born in the 1830s or perhaps early 1840s.  He then observes that Old Mick was said to have been from Lawn Hill and Lawn Hill Gorge and, that “area was in all probability that of Injilarija people prior to the migration of Waanyi groups from further west in the latter part of the 19th century.”  Thus he concludes that it is “inconsistent with the historical evidence to assign a Waanyi identity to a person said to have country in this area who was born half a century before Waanyi migrated to this area”.

122                                       I am conscious of the need to give appropriate weight to the views of an experienced anthropologist such as Dr Martin.  However I consider his conclusion to be little more than a theory.  The material upon which Dr Martin relies does not demonstrate a clear boundary between original Waanyi country and the country of adjoining groups.  It at least suggests that traditional Waanyi country may have extended into the Lawn Hill area.  I will discuss this aspect in more detail after I have summarized Dr Martin’s evidence.  The material does not unequivocally demonstrate the date of commencement of Waanyi eastward migration.  Dr Martin’s calculation of the “likely” birth year of Minnie’s putative father is also far from compelling.  Further, Mr Blackwood’s account of Roy Seccin’s story was that Minnie’s father was from Lawn Hill, not Lawn Hill and Lawn Hill Gorge.  He said that Minnie’s country was “Lawn Hill station, going back at [or up] the gorge”.  Although it is merely speculation, it is possible that Minnie’s claim to any area in the gorge (previously Injilarija country) may have arisen after the commencement of the eastern and southern migrations.  When these uncertainties are combined, it is difficult to see in this exercise any firm basis for rejecting Roy Seccin’s views.  I will return to this matter at a later stage.

123                                       As to Minnie’s mother, Dr Martin notes that the most common version of her place of origin is that she came from the Calvert Hills area which is generally considered to be in Garawa country.  Of course, the most common version may be wrong.  He concedes the possibility that there was a Waanyi/Garawa transitional zone which included the southern border of the Calvert Hills pastoral lease.  He concedes that the Waanyi and Garawa peoples are closely related language groups and parts of the same cultural bloc, sharing significant aspects of law and custom.  He said that in 1998 and 1999, when he was working in the region, it was common to hear Gulf Aboriginal people speaking of “Waanyi-Garawa” almost as if of a single group, and even referring in that way to particular people. 

124                                       Dr Martin opines that there is no historical evidence to establish that Minnie had Waanyi descent through her mother.  However at para 146 he says:

Having said that, it is not my opinion that it is necessary for every Waanyi family to be able to demonstrate objectively that their relevant apical ancestor was himself or herself descended from other forebears who were themselves Waanyi.  There will always be many factors that will limit the extent to which the details of prior generations are known.

125                                       I accept that there is little evidence upon which a firm view can be formed as to the identity of either of Minnie’s parents, let alone their language affiliation.  That is hardly surprising in view of the passage of time and the absence of official records for much of the relevant period.  It is convenient, at this point, to reflect upon the extent to which a person can know with certainty the identity of his or her mother or father.  I am inclined to the view that in the absence of modern scientific evidence, it is impossible for a person to know such matters as facts.  Having an opinion or belief about them is a different matter.  To my mind, when one purports to identify oneself as the offspring of particular parents, one is generally stating an opinion or belief based on experience and the views of others, not stating proven biological facts.  If Minnie said that she was Waanyi, then she was saying something about her understanding of her parentage.  If other members of the community in which she lived said that she was Waanyi, they were also stating opinions.  A mother is the only person who can know the identity of her child’s parents with any degree of certainty.  Another person, knowing the circumstances of a child’s birth, may know the child’s mother but, generally, not with certainty, his or her father.  Opinion and belief may be based on knowledge, but are not, themselves, knowledge.  In my view it is more helpful to look to such evidence as there is concerning Minnie’s opinion of herself and the opinions of her contemporaries than to seek to create theoretical histories for her parents.

126                                       Dr Martin also concludes that there is no material which establishes “with any confidence” that Minnie identified as a Waanyi woman.  Whilst, in one sense, this proposition is true, it completely discounts the evidence of Mr Seccin and Mr Hookey.  Whilst neither has said that Minnie, herself, told him that she was Waanyi, their views must have been formed by, and based upon the views of those people amongst whom she, and they lived.  It seems unlikely that those people would have considered Minnie to be Waanyi if she did not, herself, have that view and express it.  One may infer from the opinions of Mr Seccin and Mr Hookey that those amongst whom Minnie lived considered her to be Waanyi, and that she asserted that view of herself.

127                                       Dr Martin acknowledges that many of Minnie’s descendants assert that she was Waanyi, and that they are Waanyi.  However he notes certain inconsistencies in their assertions.  The first is a letter to the Carpentaria Land Council, apparently from Ms Hayley Iles as president of the “Minnie Group Aboriginal Corporation”, but signed by Mona Phillips.  It is dated 30 July 1999 and includes the following statement:

As we are just commencing our journey of finding our heritage we would appreciate any information you may have within the Carpentaria Land Council about our families; Minnie Mygoobungie, Chongs, Nings, Trindles, Turners, Yamaguchi, Ah Kits and Kings.

128                                       I am not sure that it is fair to describe this letter as being inconsistent with a belief that Minnie’s descendants are Waanyi.  The letter may demonstrate a desire to obtain information which will support an existing belief.  It does not necessarily evidence the absence of such belief.  Dr Martin also refers to another letter dated 18 November 2002 in which Ms Rose Iles asserts that her family members believe that they are Waanyi/Garawa, and that they belong to the Bidunggu clan group of the Waanyi tribe.  Dr Martin suggests that this assertion is inconsistent with their being Waanyi because the Waanyi and the Garawa are distinct groups.  Although Ms Iles uses that collective description, she also asserts that “… we belong to the Bidunggu clan group of the Waanyi tribe.” apparently recognizing the distinction.  Dr Martin, himself, said that it was not unusual for Aboriginal people in the Gulf to refer to the Waanyi-Garawa peoples.  I see no significant inconsistency in that aspect of the letter.  A more significant inconsistency may be the reference to membership of the Bidunggu clan group.  This clan group is associated with the Gregory River country rather than the Lawn Hill country to which Minnie’s descendants otherwise claim to be affiliated.  However the matter has little relevance to the question of Minnie’s affiliation.

129                                       Dr Martin then points out that some of Minnie’s descendants who claim Waanyi identity, other than by descent from her, dispute the assertion that her descendants are, by virtue of such descent, Waanyi.  Dr Martin places particular importance upon a statement by Nellie Chong to Ms Fietz that her mother and mother’s mother (Minnie) were Gangalidda, and that she is Gangalidda.  However she told Mr Blackwood that she did not know to which people her mother and grandmother belonged.  She told Professor Trigger that nobody knew where her grandmother came from.  Dr Martin points out that Nellie is a child of the eldest of Minnie’s daughters with descendants, Sarah Chong.  He would have expected that if knowledge of Minnie’s ancestry and country had been passed down in the family, she would have been aware of it.  She said that people expected her to know “a lot” but that she “doesn’t know much”.  At no time did Nellie hear Minnie speak an Aboriginal language, nor did any of the families from Doomadgee come to visit her.  Of course there is no evidence that Minnie had ever been to Doomadgee.  In any event, Nellie only met Minnie on one occasion.

130                                       Nellie’s lack of knowledge is not surprising given her statement that as a child, she was discouraged from asking questions of Laura Yamaguchi, her aunt, and other old people concerning their origins.  It must be kept in mind that the family was of mixed race.  It is at least possible that discussion of their Aboriginal roots was not as important to them as Dr Martin would expect it to have been in an Aboriginal community.  In any event, the point is that Nellie was not told about her family’s background so that her lack of knowledge has been explained.  There is no suggestion that other members of the family were given the information.  The family certainly has an indigenous background derived from Minnie through her daughters.  The fact that a particular descendant does not know details of that history proves little, one way or the other. 

131                                       At para 158 of his report, Dr Martin observes, concerning Nellie’s information, that, “[t]his poses a problem in my view for an assertion by family members that they have consistently identified as Waanyi.”  He also refers to the fact that some family members say that they are not Waanyi, and that others say that they do not know Minnie’s language identity.  Nellie met Minnie, only once.  The duration of the meeting is unclear.  Mr Seccin and Mr Hookey seem to have had greater opportunities to interact with members of the community in which she was living than did Nellie.  On the other hand, Nellie has said that all of Minnie’s daughters were Gangalidda.  However she also told Mr Blackwood that she did not know her mother’s affiliation.

132                                       Dr Martin says that there is no evidence that Minnie’s contemporaries recognized her as being Waanyi.  However, as I have said, Mr Seccin and Mr Hookey’s evidence invites the inference that she was so recognized.  Dr Martin concludes at para 213:

In short, while there is recognition or acceptance among some Waanyi people and others that Minnie and her children were Waanyi people, on the basis of my enquiries this is far from a universally held view.  Amongst those who do assign a Waanyi identity to Minnie and her children there is no consistent basis on which they do so.

133                                       Dr Martin gave substantial oral evidence-in-chief.  In particular, at TS 340-341 he referred to a passage in his report in which he considers para 11 of the statement of claim.  In that paragraph he asserts that a Waanyi person “is a descendant (biological or adopted) of a Waanyi person”.  At para 102 of his report Dr Martin said:

In my opinion, the tripartite principles in the Statement of Claim are consistent with accepted understandings of the principles of membership of a native title group or community, although accepted anthropological understandings of “descent” itself would see it as a cultural, not a biological construct as stated in clause 11.a.  I have not undertaken fieldwork with Waanyi people with regards to this matter.  However, in my experience, descent as an Aboriginal cultural construct is typically concerned with the transmission of spiritual essence rather than with genetic inheritance, as is the case in the western scientific paradigm.

134                                       At TS 340-341 he was invited to elaborate upon this and said:

I am wanting to bring attention to the fact that we can sometimes, in the way we – and I’m talking collectively – formulate these matters, import our assumptions about how things work unwittingly into the assumptions about how, for example, traditional Aboriginal society or contemporary society works.  The notion of biological descent is founded in Western scientific notions, most recently, of the inheritance of DNA and so forth in its extreme.  This is not a view which is held, to my knowledge, certainly by traditionally-oriented Aboriginal people and, it seems to me, even those many generations away from their traditions – although such words as “blood” and so forth, we are one “blood”, and so forth, may be used.  I have seen, for example, in my assessments of connection reports from the desert, from the Pilbara, from parts of South Australia, where what is actually being talked about is something that would be, I think, probably familiar to Catholics and perhaps high Anglicans, a form of spiritual imbuement, that is, that what one inherits, say, through one’s father is a spiritual essence which defines one.  It is not biological; it is religious and spiritual, and I think that some of the – to extend the notion of a cultural construct the discussions around, for example cognatic descent and so forth and the way in which that system operates, factors such as choice and so forth, which I also refer to in my report, go to the question of a particular cultural construction around descent.  In my view, that’s a necessary component of law and custom; an intrinsic component of Aboriginal law and custom.

135                                       At TS 341 he continued, concerning the pleading:

I understand that in a description – this tripartite description, that is, it is a description for the purposes of the law, but it seems to me that to call it biological misstates very commonly what actually are the principles of given systems of Aboriginal law and custom.

136                                       As I have previously observed, I broadly agree with this approach to the question of descent.

137                                       At TS 350-352 Dr Martin deals with the question of Roy Seccin’s suggestion that Minnie’s father was a Lawn Hill man.  As I have previously demonstrated, he argues that at the likely time of his birth Lawn Hill would not have been Waanyi country.  As I understand it, this argument is based upon the observations made by Trigger and Fietz concerning the extent of Waanyi country.  However I do not understand them to have limited the extent of the area which might accurately be described as Lawn Hill in the way which is suggested by Dr Martin.  The question is considered at some length in their 2003 report.  They consider both the boundaries of Waanyi lands prior to the assertion of British sovereignty and, in particular, the area which is generally described as Lawn Hill.  In part 1.1 they describe the boundaries of Waanyi country prior to British sovereignty.  They say that:

Waanyi country extended as far eastwards as the vicinity of the foot of the hills marking the eastern extremity of the Barkly Tableland; in the area of Lawn Hill station in Queensland, these hills include the Constance Range and the Edith Range, and they run roughly in a north-south direction along a route to the west of Lawn Hill Creek.

138                                       The Edith Range and Constance Range appear on the map which is exhibit 10.  The Edith Range is north-northwest of Lawn Hill homestead.  The Constance Range is south-west of the homestead and to the west of Adel’s Grove and the Lawn Hill Gorge.  However all of those features appear to be within about 10 km of a line running through the two ranges.  Further, in part 1.2 Trigger and Fietz speak of the eastward movement of Waanyi people beginning late in the 19th century, and the resulting establishment of traditional rights and interests by them in land extending east from the vicinity of Lawn Hill Station homestead to the Gregory River, as well as eastwards down a number of watercourses running along the south side of the Nicholson River (including Lawn Hill, Musselbrook, Elizabeth and Accident Creeks).  They then discuss the traditional country of the neighbouring Injilarija and Nguburindi tribes.  This passage suggests that the eastwards expansion started “from” the vicinity of Lawn Hill Station, implying that the station was on the previous boundary of Waanyi land.  Of the Injilarija they say at 1.3.1:

Thus, the Winjilarija people are known to have been distributed around the gorge country of Lawn Hill Creek and south westwards across into the Northern Territory, around the headwaters of the Gregory River. 

139                                       They say that the Nguburindi people were, at the time of European intrusion, centred on the middle and lower reaches of the Gregory River.  They also note that Dymock suggested that Nguburindi territory encompassed the Gregory River “as well as at least part of the area to the west across the plains towards Lawn Hill Station”.  This passage suggests that Nguburindi territory was “towards” Lawn Hill Station, rather than that it extended to, and included that station.

140                                       At para 1.4 Trigger and Fietz observe:

As recorded in Trigger’s research over a period of some 20 years, and also by Fietz in the last two years, the extent of Waanyi country at the time of European arrival is considered to have extended eastwards to the vicinity of the foot of the Constance and Edith ranges, including Lawn Hill Creek out on the plain country at least some 10 km east of the hills.

141                                       They also state that:

While there is recognition that the territories of the Injilarija people and Nguburindi people once melded somewhere to the north east of the Lawn Hill Gorge area, the former having extended upstream on Lawn Hill Creek to the south and south west and the latter having extended eastwards to the Gregory River, the predominant view among Waanyi people is that with the demise of these language groups, the Waanyi have historically “taken over” the traditional law and custom for their territories.

142                                       This passage suggests that the gorge must have been close to the north-eastern extremity of Injilarija country.  In ch 4 of the report Waanyi country is discussed in more detail with reference to the various separate areas to which Waanyi families are connected.  It is said at part 4.3 that:

The area described in general terms as “Lawn Hill country” is based on the name for the station and also Lawn Hill Creek; the latter is a major watercourse which flows from the west side of the claim area east and north-east where it eventually junctions with the Gregory River.  Claimants discuss “Lawn Hill country” as encompassing most of the pastoral Station area known by this name.  This includes the broad expanse of range country to the west and south of the homestead, an area named in English as the Constance and Edith ranges.  It also includes the gorge country on Lawn Hill Creek, and the plains country extending eastwards from the foothills of the ranges – an area that includes land east as far as the start of “Gregory River country”.  In a southerly direction, this area encompasses land as far as the vicinity of Lillydale Spring.

143                                       The authors are here discussing the extended area of Waanyi country after the annexation of the former territories of the Injilarija and Nguburindi peoples.  However the significance of the passage lies in the inclusion within the description “Lawn Hill country” of the Constance and Edith Ranges.  These areas were indisputably part of traditional Waanyi country.  Indeed, it seems that such country may have extended to Lawn Hill Creek which flows past those ranges, at least 10 km east of them.  In those circumstances it is difficult to accept Dr Martin’s argument that if Minnie’s father was born at Lawn Hill, then he was born when the area was not Waanyi country.  I should also point out that in re-examination, Professor Trigger said, at TS 332 ll 15-19, concerning the extent of Waanyi country:

… (T)heir traditional country always extended on to Lawn Hill, to the edge of the hilly country – in fact, to the vicinity of where the cattle station is, to the site Ngumari that has been named, but then – and so it was their traditions which assimilated and succeeded to the country to the east somewhat across the flat plains and up into the gorge.

144                                       Ngumari is a waterhole to the north-east of Lawn Hill homestead.  Clearly, Professor Trigger considers that traditional Waanyi country extended at least to that point.

145                                       Dr Martin expresses other doubts about Mr Blackwood’s account of his conversation with Roy Seccin.  At para 206 of his report he observed that Roy had said that Minnie’s country was “Lawn Hill station, going ‘back up the gorge’ ”.  In an account given elsewhere the expression is said to be “back at the gorge”.  Although Mr Martin expressed a view concerning this discrepancy I do not consider that it is of any great significance.  The gorge appears originally to have been in Injilarija country although probably close to a point at which Injilarija, Nguburindi and Waanyi country adjoined.  Roy Seccin did not say that Minnie’s father’s country was “at [or up] the gorge”, but that Minnie’s country was there.  It is possible that the eastward migration effected an extension of Minnie’s country.  As I have said, it is also possible that Mr Seccin was merely indicating the general area of Minnie’s country.  There are many other possible explanations.  In the end, I am not persuaded that these matters should lead me to reject Roy Seccin’s view as unreliable. 

146                                       At TS 362, I asked Dr Martin what it meant to describe a person as “Waanyi”.  He said at TS 362-3:

I would describe it as a community in the broad sense of that word.  A community of people who under – who share a body of law and custom under which, firstly, they can trace descent from non-Waanyi forebears who had connection to country associated with that language name, with the Waanyi name, and who in turn have associations to particular areas in accordance with law and custom, Waanyi law and custom, within that tract of country associated with Waanyi.  So it is a community of persons who share a body of law and custom which places them in a specific area of country and provides them with a specific identity, which is tied up with country, with language, with ritual and so forth. 

147                                       Dr Martin was also asked to comment upon the recorded conversation between Mr Phillips, Mr Peterson and Mr Foster.  He doubted whether it constituted unambiguous endorsement by Messrs Peterson and Foster of the proposition that Mr Phillips and Mona Phillips were Waanyi.  Again, I doubt whether I should simply accept such an opinion.  I keep it in mind in assessing the weight to be placed upon the evidence. 

148                                       In the course of cross-examination Dr Martin agreed that the identification of Minnie’s daughters as Gangalidda was probably based upon their place of residence near Burketown, in Gangalidda country, rather than upon any knowledge as to their actual background.

MR BLACKWOOD

149                                       Whilst Professor Trigger and Dr Martin were retained by the applicant, Mr Blackwood was retained on behalf of Mr Phillips and other members of the Minnie family.  I do not doubt the professionalism or impartiality of any of these three men.  Nonetheless, their approaches to the present problem reflect the different points of view motivating those who retained them.  Whilst Professor Trigger and Dr Martin focus upon the Waanyi community and seek to identify how the Minnie family might fit into it, Mr Blackwood starts with the Minnie family and seeks to identify where it might belong in the overall Aboriginal society of the southern Gulf area.  Despite the different starting points, each man seems to have reached a fairly similar overall assessment of the position.  However, as a matter of judgment, Professor Trigger and Dr Martin have reached somewhat different conclusions from that reached by Mr Blackwood.  All of the reports reflect appropriate mutual professional deference.  Both Dr Martin and Mr Blackwood rely substantially upon the work of Professor Trigger and Ms Fietz.  At numerous points in Mr Blackwood’s report he concedes that information available to the other anthropologists was not available to him.  Professor Trigger and Dr Martin are critical of certain aspects of the factual basis of Mr Blackwood’s report.  Mr Blackwood similarly highlights apparent factual weaknesses in their reports.  More particularly, Mr Blackwood challenges some aspects of the logic of their reports and raises a number of substantial, and quite interesting questions.  Having made those general observations I turn to his report.

150                                       Mr Blackwood was first retained in early 2003 by the Minnie Myboogundji group in relation to a claim over the Boodjamulla (Lawn Hill) National Park under the Aboriginal Land Act 1991 (Qld) (the “ALA claim”).  His draft report was presented to the Minnie family at a meeting in Mt Isa in March 2005.  Mr Blackwood has undertaken no further funded research in relation to either the ALA claim or the present proceedings.  Mr Blackwood’s conclusions appear at paras 77 and 78 of his report as follows:

77        I cannot say for certain that Minnie was Waanyi, but it is my concluded view that the weight of what I have learnt about Minnie and her descendants strongly supports the likelihood that she was a Waanyi woman.  Furthermore, I can say that the kind of information and the sources reviewed in this report which lead me to this conclusion are, in my experience with other Aboriginal groups in North Queensland and elsewhere, typical of the sorts of information Aboriginal people characteristically put forward to establish a person’s traditional affiliation to groups and country.  In other situations of my experience, where senior traditional owners, even when these may have been few in number, have shown a knowledge of a person’s identify and affiliation their opinion has been accepted by other members of the group as sufficient basis to accept the person or persons into the group.

78        With regard to Minnie’s descendants, it is my opinion that under the set of principles of Waanyi recruitment by descent from a Waanyi ancestor spelled out in the connection report, it follows that if Minnie was in all likelihood Waanyi, then so too will her descendants be.  The fact that her descendants are recognized by some Waanyi people, including senior Waanyi people, is both a recognition that Minnie herself was Waanyi and an acknowledgement that this identity has been passed down to her descendants.

151                                       Mr Blackwood takes issue with the formulation of the test of Waanyi identity advanced by Professor Trigger and supported by Dr Martin.  He starts by referring to the following passage from the Trigger and Fietz report:

Waanyi people are acknowledged members of this group on the basis of an ancestral link to one or more known Waanyi forebears.  Common descent from an “apical genealogical referent” (Trigger 1982:14) is typically traceable following back through a number of generations.  The structure of the Waanyi group today, involving large extended families, is framed by reference to these Waanyi forebears.  Furthermore, these deceased Waanyi ancestors are associated with particular areas of land or “countries” across the native title claim area.

152                                       Mr Blackwood accepts this definition as being typical of his experience with Aboriginal groups generally and consistent with the literature concerning the Waanyi people.  He describes it as a “prescriptive descent model” which is based upon principles of long-standing and accepted by the Waanyi people generally.  At para 482 he continues:

Recently I have come to learn that the applicants have put forward some additional criteria which I would describe as “interactional” rather than ones based upon a long standing set of principles or rules.  These criteria are addressed in the expert opinion reports by Professor Trigger and Dr. Martin, and comprise what Professor Trigger glosses as “assertion, self identification and collective acceptance …” .

153                                       Mr Blackwood says of this approach that:

The Macmillan Dictionary of Anthropology defines interaction theory as: “A type of social theory which assumes that individual behaviour is to be described and/or explained in terms of the interaction between persons engaged in the construction of social events.”  …  This approach analyses behaviour in terms of negotiation and manoeuvre, politics and power, and similar, essentially competitive, dynamics.  It tends to down play the importance of rules and long held principles.

154                                       Mr Blackwood refers to the necessary conditions for Waanyi membership as identified in the Trigger and Fietz report as:

•           Descent from deceased male or female ancestor or ancestors who are known to be Waanyi, through a process of serial filiation, or as they quote from anthropologist, Dr Peter Sutton, an “irregular zigzag of filiation steps … .”

•           At least one Waanyi grandparent is necessary to sustain membership of the group.

•           Filiation to a Waanyi parent (and grandparent), through either one’s mother or father.

155                                       He then observes that, according to Trigger and Fietz:

·                    Marriage to a Waanyi person, being born on Waanyi country or having a forebear who has died on, or been buried in Waanyi country does not confer Waanyi membership. 

·                    A person who holds Waanyi identity may hold multiple language tribe identities with no preference for either patrilineal or matrilineal inheritance of primary linguistic affiliation. 

·                    Adopted individuals are entitled collectively to hold rights in the group’s traditional cultural property. 

·                    Lengthy physical absence from the southern Gulf region does not erase the right to group membership nor necessarily prevent group acceptance of an assertion of such right.

156                                       Mr Blackwood accepts these propositions.  He then notes that the proposed amended description of the claim group states that “the following persons are known Waanyi ancestors” and then lists 15 apical ancestors.  He observes that in his view two of them, June Jacob and Opal, did not “count among their forebears any Waanyi ancestry”.  The authority for this proposition is the Trigger and Fietz report where the two women are classified as “ambiguously Waanyi”.  Mr Blackwood notes that another listed ancestor, Rosie (said to include her daughter, Lena Saville), seems not to have Waanyi ancestry.  Thus he observes that these women were accepted as Waanyi people without Waanyi ancestry.  He suggests that such acceptance is inconsistent with the propositions previously advanced.

157                                       Mr Blackwood then notes that additional criteria are now proposed by Professor Trigger and Dr Martin, namely:

·                    assertion of Waanyi identity;

·                    self-identification as Waanyi; and

·                    acceptance by other Waanyi.

158                                       He points to various different ways in which these additional criteria appear to be formulated.  In para 11 of the statement of claim it is alleged that:

The laws and customs concerning who are Waanyi people are that a person is a Waanyi person if and only if he or she:

(a)        is a descendant (biological or adopted) of a Waanyi person;

(b)        identifies himself or herself as a Waanyi person; and

(c)        is recognized by other Waanyi people as being a Waanyi person.

159                                       In Attachment A to the statement of claim it is said that:

The Waanyi people are those of the living descendants of Waanyi ancestors who:

(1)        identify as being members of the Waanyi people; and

(2)        are recognized by the Waanyi people as being members of the Waanyi people.

160                                       He notes that in the proposed amended application the following passage appears:

The Waanyi people are those of the living descendants of Waanyi ancestors who identify as being Waanyi people, and are recognized by other Waanyi people as being Waanyi people.

161                                       Mr Blackwood considers that the criteria of descent and self-identification are essentially the same in these various formulations, but that the criterion of recognition is identified differently in each of them.  He also points out that Professor Trigger adds a further requirement that there be an assertion of Waanyi identity.

162                                       Mr Blackwood takes issue with the need for assertion, self-identification or group identification or acceptance.  He asserts that these matters are more observations concerning Waanyi behaviour than normative requirements rooted in traditional laws and customs.  He submits that Waanyi membership cannot be dependent upon assertion if the relevant person is, in fact, unable to make such an assertion or, for one reason or another, is reluctant to do so.  He points out that a Waanyi person may be too young to self-identify as Waanyi.  He asserts that assertion and self-identification may be two facets of the same phenomenon.  He perceives that Professor Trigger may be addressing the possibility that a person might assert Waanyi connection while self-identifying as something else.  Mr Blackwood points to various examples of persons who appear to have been accepted as Waanyi notwithstanding the absence of any clear evidence of Waanyi descent and to his view that Minnie was, at one stage, accepted as an apical ancestor, but then rejected.  Mr Blackwood’s criticism of this aspect of Professor Trigger’s work has been developed at some length.  However I am inclined to the view that his concerns are more apparent than real.  I will return to these matters at a later stage.

163                                       I should summarize the information derived by Mr Blackwood from various sources.  Some of the people to whom he spoke said different things to Professor Trigger, Mr Martin or Ms Fietz.  Kathleen Shadforth told Mr Blackwood that her mother had told her that Minnie was a Waanyi woman and had “devil devil dreamings”.  Eva Gilbert had not known Minnie but told Mr Blackwood that she was a Waanyi woman from Lawn Hill.  She was told about Minnie by her mother who was at Lawn Hill at about the same time as Minnie.  This was at the time of the outlaw Joe Flick, in the late 1880s.  Both women seem to have suggested to Dr Martin that Minnie was Gangalidda, or at least that her daughters were so affiliated.  Mr Blackwood records that Hommed Hausen told Rose Iles that Minnie was a Waanyi woman from Lawn Hill.  Jack Hogan, in the presence of Roy Seccin and Jack Green, said that Minnie was a Waanyi woman.  He did not tell Dr Martin that fact.  Tom O’Keefe was told by his mother that Minnie was a Waanyi woman from Lawn Hill.  He told Dr Martin that Laura Yamaguchi and her sisters were not Waanyi.  Dorothy Butcher told Mr Blackwood that Minnie and Janie Ah Kit were Waanyi.  Members of the Minnie family who told Mr Blackwood that the family was Waanyi included Mona Phillips, Margaret Body, Doreen Sweeney, John Chong, Gregory Phillips, Patrick Ah Kit, Arthur King and Ada Walden.  Mr Blackwood spoke to 20 or 30 family members, none of whom said that they believed Minnie to be anything other than Waanyi.  Mr Blackwood also identifies a number of people who have attributed either Garawa or Gangalidda affiliation to Minnie.  Others said that her affiliation was unknown to them.  He also lists other persons who have told him that Minnie’s daughters, grandchildren and great-grandchildren were, or are, Waanyi.  It is not necessary to list these people.  Mr Blackwood’s concluding opinion in his report is of some interest.  At paras 630-632 he says:

630       On the question of whether or not Minnie’s descendants, including Gregory Phillips and other living descendants, are Waanyi, it is my opinion that some are Waanyi through descent from ancestors, other than Minnie, who are not known to be related by blood to Minnie.  These are individuals who are descendants of a union between a descendant of Minnie and another person who is a descendant of another Waanyi ancestor.  Ada Walden is an example of such a person.  For those such as Gregory Philips and numerous others who cannot count an alternative Waanyi person among their forebears, the answer to this question rests on whether or not Minnie was a Waanyi persons.  This is for two reasons.  Firstly, by application of the prescriptive descent model of recruitment, it follows that if Minnie is Waanyi then through the process of serial filiation, her descendants are also Waanyi.  The second is that these people cannot trace an alternative of Waanyi descent.

631       If the interactional model of recruitment is accepted, and for the reasons set out in the previous chapter it is my opinion that the applicants have not provided sufficient information about the operation of this model to [sic] for me to come to a concluded view about this, there is data which points to the living descendants of Minnie both self-identifying and asserting a Waanyi identity.  Furthermore, the assertion of this identity conforms to the prescriptive descent model; that is, they believe and assert that they derive Waanyi identity through descent from a Waanyi ancestor.

632       With respect to the criteria of collective acceptance, I can only conclude that this remains an open question among the Waanyi because there are known to me senior Waanyi people, some of whom have now passed away, who have plausibly identified Minnie and/or her children and other descendants as Waanyi.  To the best of my knowledge they have not ceased to express this opinion publicly, which I take to be an indication that among senior Waanyi people no consensus has yet been reached.  In anthropologist Nancy Williams’ words, a point has not yet been reached on the question of the Minnie group’s identity where “there is no longer anybody who is publicly willing to maintain, or has a stake in presenting a contrary case” (Williams 1994: 111).

164                                       Concerning the criteria for Waanyi membership, the following passage appears from his cross-examination at TS 638:

Mr Hiley:  So perhaps if I could put back to you what I think I understand to be your position: it’s more the description of these aspects as criteria that you are concerned about, but I think you are accepting, you have seen elsewhere, that these elements or factors – I am avoiding the word “criteria” that these are factors that will often form a part of the decision-making process?  ---  No, I think that – I think they are patterns of behaviour that are involved in decision-making, but I think that people – generally, the people who are making decisions, they are making decisions on the basis of thinking about some particular principle, so they might debate whether somebody’s grandmother was Waanyi or not or whatever.

Yes?  ---  There may be argy-bargy about all that but ultimately, the decision-making must come back, in my view, to some sort of principles or some, I think, as your Honour said earlier, some sort of objective.  Something there, and they are what I see as being principles or rules.  And generally, in Aboriginal communities, they are rules that can be expressed to some extent in the abstract.  So I am uncomfortable with ---

You are under the – sorry, go on?  ---  Well, my experience of Aboriginal groups is that if people can show that they fit those prescriptive criteria, particularly descent criteria, then even if they have been absent for a long time, that generally people are accepted back into the group.

Yes?  ---  And they don’t have to go – I mean, obviously, there’s a decision-making process, and the decision-making process may involve them, you know, making some sort of assertion, and the decision-making process may involve the group, you know, considering all of this.  But ultimately, if they comply with those more objective criteria, that the group feels bound that they have to accept those people. 

165                                       This passage relates to the proposition that assertion of Waanyi identity and acknowledgement by the group of such identity are criteria for group membership.

166                                       Mr Blackwood was cross-examined at length.  However, the real differences of opinion amongst the anthropologists reflect the different views expressed by the various persons to whom they spoke.  I see little reason to doubt that Mr Blackwood’s evidence accurately reflects the outcomes of his investigations.  No doubt there are areas in which his notes of conversations are less than absolutely accurate and/or complete, but that possibility does not lead me to doubt the general thrust of his evidence or the substantial accuracy of his records of conversations with others.

OTHER WITNESSES

167                                       I shall now consider the evidence of various lay witnesses.

Gregory Lloyd Phillips

168                                       Mr Phillips was born in Mount Isa in 1973.  He claims to be a Waanyi person.  His mother, Mona Phillips, was the daughter of Bessie Turner who, in turn, was Minnie’s daughter.  Mr Phillips knew his grandmother, Bessie.  When he was approximately eight years old she told him that she was born at Louis Creek, near Lawn Hill, which was “our” country, and that he was Waanyi.  In more recent times, Mr Phillips has conducted a series of interviews with indigenous elders in an attempt to establish his ancestry.  The first interview was conducted in early 1991 while Mr Phillips was on vacation from university.  At Yallambee Reserve in Mount Isa, he interviewed Arthur Peterson and Billy Foster.  A transcript of this interview is annexed to the report of Dr David Martin.  Counsel for Mr Phillips places particular emphasis on the following extract:

[Gregory Phillips (GP)]: And that’s where Nanna’s from is it? You know Bessie eh?

[Arthur Peterson (AP)]: Yeah, yes, that’s where your Nanna’s from there yes.

[GP]: She’s from there too?

[AP]: Yes, she’s a full Waanyi your Nanna.

[GP]: Yeah, and where was she born?

[AP]: She was born near Killgirri Station (?)

[GP]: Oh Yeah. What is it? Killbilli?

[AP]: Injilinjili tribe.

[GP]:  Injilinjili tribe?

[AP]: Yeah.  Injilinjili.  That’s where Old Girl was born there.

[GP]: She was born there but was she from Waanyi tribe?

[AP]: Yeah. Yeah. She’s a Waanyi.

[GP]: And so am I a Waanyi too?

[AP]: Yeah, you Waanyi too. You mother Waanyi.

[Billy Foster]: Your mother Waanyi too mate.  So you Waanyi with us.

169                                       It is, I think, common ground that Mr Peterson was a senior Waanyi man.  It seems that Mr Foster was (or is) not a Waanyi man.  Mr Phillips’ counsel described him in his submissions as a senior Yanyulla man.  Mr Peterson is now deceased.  It should be noted that Mr Phillips’ inquiry was made long before the present proceedings were commenced.

170                                       On 6 November 2007 Mr Phillips conducted further interviews in Borroloola in the Northern Territory.  Those discussions involved Mr Phillips’ mother’s brother Johnny Turner, Jack Hogan, Jack Hogan’s wife, Iris Hogan (nee Finlay) and Iris Hogan’s mother, Bettie Finlay.  Those recordings were of poor quality.  Their tender was not pressed by counsel for Mr Phillips.

Mona Phillips

171                                       Mona Phillips was born in Mount Isa in 1942.  She claims to be a Waanyi person.  Mr Phillips is her son.  Her parents were Bessie Turner and Raymond Turner.  Minnie was her maternal grandmother.  In the late 1970s Ms Phillips was living with her mother and children in Cloncurry.  She says that at about that time a book by Professor Memmott concerning the Kalkadoon people caused much discussion among indigenous people.  It caused Ms Phillips to ask her mother whether she was Kalkadoon.  Her mother said: “No way, we are Waanyi!”  From that point on, Ms Phillips never doubted her traditional identity.  However, she has attempted to gather further information about it: see TS 566 ll 42-43.  In the 1980s Arthur Peterson told her that her mother’s bush name was Julunju: see TS 567-568.  This evidence of renewed interest in descent, provoked by a particular event, may help to explain some of the difficulties which the parties to this case face.  Clearly, Ms Phillips implies that the family’s indigenous descent had not been discussed with her during her childhood.  Had the book not been published prior to her mother’s death, Ms Phillips may have, herself, died without seeking to identify her lines of descent and without speaking of them to her own children.

172                                       In March 1998 Ms Phillips attended a meeting of Waanyi people held at Camooweal.  There were approximately two hundred other people in attendance.  The meeting appears to have been called to consider a proposed land claim.  Ms Phillips provided an edited transcript of parts of the meeting. The transcript shows that her late cousin, Billy King said:

Well I’m Billy King, I’m [Alma Anderson]’s second eldest brother. I come down here … to find out what how you go about this land claim.  Our grandmother, Old Minnie she had five or six daughters, lot of you people would know them, Aunty Janie AhKit, Aunty Bessie Turner, Aunty [Laura Yamaguchi], my mother [Maudie] King, Aunty Sarah.  With all those families they were born to Old Minnie.  Old Minnie was a Waanji that was verified, verified over in [Booraloola], my brother Arthur when he was over there.  He was the one that, told us about the land and that.  He was living over there when we lost him a couple of years ago.  But he brought this up over in, over in [Booraloola].  So we’re all down here now to find out how far this, how far we can go with this land claim.  It’s, it’s a Waanji, Waanji sort of land claim and I’d like to, to work with everyone that’s here as one people, Waanji people to, to claim this land and we’re gonna find out how to do it and support each other and whatever so.  I hope we all have a good meeting and no arguments.

173                                       Ms Phillips understands Billy King to have been the son of Maudie and Willy King.  His paternal grandmother was a Waanyi woman called Emma who came from around Riversleigh: see TS 564 ll 24-38.  As he observed, he was Minnie’s grandson.  Ms Phillips says that at the 1998 meeting she only recalled one person challenging her family (presumably concerning its Waanyi identity).  This was Shirley Chong, a Waanyi woman, then in her 40s, who is related to Ms Phillips’ “Chong cousins by marriage”.  Ms Phillips found most people to be “very welcoming”.  The importance of this evidence lies in the fact that Mr King asserted that descent from Minnie was a basis for being a Waanyi person.  Ms Phillips invites the inference that those at the meeting generally accepted that proposition, save for Ms Chong.  Of course, much may depend upon the precise purpose of the meeting and the circumstances in which Mr King made his claim. 

174                                       Ms Phillips also refers to statements made at the meeting by Mr Oliver from the Queensland Department of National Resources concerning membership of the proposed Waanyi Aboriginal Land Claim Association (“WALCA”) and its draft rules.  This body was to make a land claim on behalf of Waanyi people.  He said that membership would depend on “Waanyi blood” or descent.  The meeting agreed to establish WALCA.  An interim steering committee had already been established.  At the meeting representatives of two families were added, those descended from Minnie and those descended from Urmudi.  The rules adopted by WALCA provided that Waanyi descendants, accepted as such by Waanyi elders, were eligible for membership.  Again, Ms Phillips invites the inference that by appointing a representative of the Minnie family to the committee, the meeting tacitly accepted that Minnie’s descendants were Waanyi people.  I have previously explained and accepted Professor Trigger’s view concerning that proposition.  Nonetheless, the apparent attitude of those attending the meeting to the Minnie family suggests some acceptance amongst the wider Waanyi community although, as Professor Trigger opines, not necessarily by that community as a whole.

175                                       Ms Phillips’ attention was directed to annexure B to the affidavit of Simone Archer filed on 7 July 2009, which is a letter dated 30 July 1999, apparently from Hayley Iles, the president of the Minnie Group Aboriginal Corporation, to Mr Murandoo Yanner.  I have previously referred to this letter.  It refers to a proposed amalgamation of unidentified Native Title claimant groups “into one land claim within the Waanyi/Gangalida Gulf region.”  The letter asks that the Minnie Group Aboriginal Corporation be represented in the new claim group and continues:

As we are just commencing our journey of finding our heritage we would appreciate any information you may have within the Carpentaria Land Council about our families: Minni Mygoobungie, Chongs, Nings, Trindles, Turners, Yamaguchi, Ah Kits and Kings.

We look forward to working closely with you and any updated information on previous proceedings as well as your response to our request at your earliest would be welcome.

176                                       Although the name “Hayley Iles” is typed at the foot of the letter, it appears to have been signed by Ms Phillips. Ms Iles is Ms Phillips’ niece.  Ms Phillips said that the letter represented her understanding of the position at the time. 

177                                       Ms Phillips says that at the Camooweal meeting in March 1998 there was discussion concerning four claims made under Queensland legislation for different parts of Waanyi country.  The meeting was convoked by the Queensland government with a view to combining claims.  There was not enough money to fund all of them.  Ms Phillips says that about 50 members of the Minnie family attended.  She agrees that WALCA’s main function was to prepare and lodge a combined claim under the Queensland legislation.  It did not deal with any claim pursuant to the Native Title Act.  She subsequently learned that a separate body was dealing with a Native Title claim.  It may have been called the Waanyi Steering Committee.  At some stage, perhaps in 2002, she read a letter addressed to Rose Iles which disclosed that there had been a decision that the Minnie family not be recognized as Waanyi people for the purposes of the Native Title claim.

178                                       In re-examination Ms Phillips identified her siblings as Jessie Nissen, Ann Ning, Alex Ning, Nancy Ning, Don Trindle, David Trindle, Ben Trindle, Fred Trindle, Frank Trindle, Irene Bruce, John Turner, Rose Iles and Mary Cotteril.  All had the same mother.  The youngest in the family was born when Ms Phillips mother was in her 50s.  The eldest would have been born when she was in her teens or early 20s.   

179                                       During the mid 1990s Ms Phillips was employed as an Alcohol and Drug Community Worker.  Her employment required that she spend one week each month in Doomadgee, a township in Waanyi country (although not within the claim area).  As a result of scarce accommodation in the area she often stayed at the aged care hostel.  During her visits she came to know a number of Waanyi elders including Jimmy O’Keefe.  She discussed her family’s history with them.  Some Gangalidda women, including Inez Diamond, Eva Gilbert and Clare Foster, told her that her family was Gangalidda.  Others said that her family was Waanyi.  Ruth Jacobs (Eddie Jacobs’ mother) insisted that they were Waanyi.  Archie Black (Ruth Jacobs’ uncle) told her that her mother would carry him around at Gregory when he was a boy.  Ms Phillips says that in 1994 she took Henry Aplin and others on a two week tour of outstations in the Northern Territory.  Mr Aplin is a member of the claim group.

180                                       Ms Phillips says that there are probably hundreds of Minnie’s living descendants.  Her family did not become involved in negotiations concerning the Century Zinc Mine which is on Waanyi country.  The negotiations seem to have started in the early 1990s.  The ultimate agreement was made in 1997.

Debbie Chong

181                                       Debbie Chong was born at Burketown in 1958.  She claims to be a Waanyi person.  Her father was Jack Chong.  Her paternal grandmother was Sarah Chong, Minnie’s daughter.  Ada Walden (who is a member of the applicant group), is her half sister, Jack Chong being her father.  Ms Chong grew up in Burketown near the river.  Her sister, Mandy, is married to a Waanyi man, Rex Hookey.  They married in 1972.  One of their children, Tanya Hookey, is married to Travis Cotterell, a grandson of Ms Chong’s paternal grandmother’s sister, Bessie.  Ms Chong’s deceased first husband, the father of her three children, was a Kalkadoon man.  Her son married a Mitakoodi woman from Cloncurry.  Her daughters both married men from the Northern Territory, one a Gumatj man, the other a Wurrundji man.

182                                       Ms Chong says that her grandmother never discussed the identity of their tribe.  However she taught her certain rules which she had to follow.  She was not allowed to eat dugong or sea turtles because, as her grandmother said, “We are inland people, not sea people”.  Ms Chong has taught those same rules to her own children.  It may be that the reference to “inland people” would not include the Gangalidda and Garawa peoples as they claim coastal land.  However the Garawa people also have inland interests.  Ms Chong knew Phillip Yanner, a Gangalidda man, from the time when she was a young girl.  He identified her family as “Waanyi people”.

183                                       Ms Chong attended a claim group meeting and mediation session concerning the acceptance of Minnie’s descendants into the Waanyi claim group.  It was held at Adel’s Grove on 12 and 13 September 2007.  The minutes of that meeting are ex SMA 7 to Ms Archer’s affidavit filed on 24 August 2009.  It was an “authorization meeting”.  As appears from other evidence, the meeting did not authorize inclusion of the Minnie family in the claim group.  Ms Chong attended because she was upset at people claiming, in connection with the Century Zinc Mine, that “You Chong mob are Chinamen”.  She had not previously had any involvement with Mr Phillips or other members of the Granny Minnie Corporation in their assertions of Waanyi identity.

Kevin Chong

184                                       Kevin Chong was born at Burketown in 1944.  He claims to be a Waanyi man.  He is the son of Tommy Chong Jnr and Dolly Attenborough.  His father’s parents were Tommy Chong Snr and Sarah Chong, Minnie’s daughter.  His grandfather arrived from China during the gold rush.  His grandmother, Sarah, taught him “strange rules” such as not cooking meat and fish on the same fire.  During the early 1950s Kevin Chong went with his grandmother to visit her sister, Janie Ah Kit, in Camooweal.  On that trip his grandmother prevented him from swimming in a waterhole with his second cousin, Alfie Ah Kit, because he was “not from that country”.  It will be recalled that Mr Hookey also had a connection to Janie Ah Kit.

185                                       Mr Chong made some comments concerning the content of Mr O’Keefe’s affidavit.  However, in the end, the relevant paragraphs were not received into evidence.

George Chong

186                                       George Chong was born at Burketown in 1950.  His father was Jack Chong, the son of Sarah Chong, Minnie’s daughter.  Ada Walden is his half sister, Jack Chong also being her father.  Mr Chong claims to be a Wannyi man.  George Chong called his great-aunt, Laura Yamaguchi (Sarah Chong’s sister) “Granny Yamaguchi”.  He visited her regularly before she died.  On more than one occasion she said “Boy, we Waanyi”.  He claimed that the “Connolly mob”, who are Waanyi by descent from Lizzie Daylight, sent their children to school during the 1950s in Burketown.  They lived there with Granny Yamaguchi.  I assume that Mr Phillips invites the inference that such arrangement suggests a connection of some kind.

Sharon Oliver

187                                       Ms Oliver was born at Cloncurry in 1960.  Her mother was Irene Oliver (nee Hookey), the daughter of Charlie Hookey and Ethel Hookey (nee Samardin).  It seems that Irene was Yuen Hookey’s sister.  Ms Oliver must be his niece.  Charlie Hookey’s mother was a Waanyi woman named Violet Darby.  Ms Oliver attended the Adel’s Grove meeting on 12 and 13 September 2007.  She was present when the meeting decided to accept the descendents of a lady called “Opal” as being Waanyi.  Ms Oliver says that the discussion preceding the decision made no reference to what any “elders” may have thought.  Ms Oliver says that “[t]he younger ones present had more of a say”.  This evidence seems to have been intended to contradict any assertion by the claim group concerning the pre-eminent role of the elders in decision-making.

Yuen “Hully” Hookey

188                                       Mr Hookey is a Waanyi man.  I have already said a little about his evidence.  I need only add a few further comments. 

189                                       In 1949 Mr Hookey moved to Cloncurry where he commenced work.  He had a number of different jobs, the first of which was “peeling spuds in the pub”.  He then worked as a stockman on stations, most of which were located on the Leichhardt River, and on truck runs to various stations in the area.  He visited Lawn Hill Station and was, at one stage, employed on Lorraine Station.  He lived in Cloncurry for 50 years or more, although he returned to Burketown on a few occasions: see TS 468-469.  He now lives in Charters Towers.  In 1957 Mr Hookey was working on Wernadinga Station where he met Billy Foster.  He does not recall ever meeting Roy Seccin or Arthur Peterson.

190                                       Mr Hookey attended the meeting at Camooweal in 1998.  The meeting involved “introductions”.  There was no real debate about whether Minnie was Waanyi, although somebody disputed the matter.  He went to Doomadgee for the first time in 2000 in order to attend a meeting.  He said that Hookey’s Hole and Burketown are not in Waanyi country which is further to the west.  Mr Hookey seems to have picked up some of his Waanyi knowledge in the course of these proceedings.  He does not know much about Waanyi law.  He knew Henry Aplin’s parents and knows Freddy O’Keefe and his father, Tommy.  Mr Hookey’s uncle is married to Laura O’Keefe.

191                                       He knows little of the skins system or marriage rules, although he recalls such matters being discussed when he was younger.  He identifies Waanyi country as around Lawn Hill, Gregory River and possibly Banja.  Doomadgee is in Waanyi country.  Parts of the Northern Territory are also in Waanyi country, especially the Nicholson River and Wollogorang.  Again, he appears to have acquired some of this knowledge quite recently: see TS 475 l 9. 

192                                       He accepts that other, older Waanyi people may know more about Waanyi laws and customs than does he.  Of course such a concession, by itself, means very little.  He has heard something about a land claim on the Northern Territory side of the Northern Territory/Queensland border at a place called Nudgaburra.  He has heard of the China Wall, also in the Northern Territory, but he has never been there.  He has not heard of a land claim made in 1982.  He was not involved in the Century Zinc negotiations in the late 1990s.  He was in Cloncurry in 1982 and during the 1990s.  I should point out that at TS 480 l 24, Mr Hookey seems to say that Violet Darby died when he was two years old.  He also says that she died in 1942.  He was born in 1935.  Either he is in error or there has been a transcription error.

193                                       Mr Hookey attended the authorization meeting at Adel’s Grove in 2007.  This was a meeting of the claim group.  In conjunction with it, the Tribunal conducted a mediation of which I know little.  Although those conducting the proceedings appear to have tried to keep the two activities separate, it is probable that they overlapped, at least in the sense that information supplied at one was relied on in the other.  However mediation proceedings are generally confidential.  As a result, it is a little difficult to form a reliable understanding of proceedings at the meeting.

194                                       Mr Hookey agrees that at some stage, a resolution was proposed to the effect that the Minnie family be admitted into the claim group.  Nobody formally moved adoption of that resolution, and so it lapsed.  It may be more correct to say that the possibility of considering such a motion was raised but not pursued by those at the meeting.  Mr Hookey said that he had not proposed the motion because nobody else had.  Subsequently, there was a motion that the Carpentaria Land Council be instructed that the claim group did not accept Minnie as a Waanyi ancestor for the purposes of the claim.  That motion was passed with no opposition.  Mr Hookey was waiting for others to oppose it before he did.  Following discussion concerning a family descended from Opal, the meeting resolved that the applicant instruct the Land Council that Opal be listed amongst the other ancestors of the Waanyi people in the claim group.  Mr Hookey did not oppose the motion.  He recalls the list of ancestors being put up on a whiteboard.  Minnie’s name was on the list but was crossed out. 

195                                       The meeting also resolved that an adopted person might be identified as Waanyi and that the amended description of the claim group was the correct description of the Waanyi people.  I am not quite sure of the version in question, but it does not matter.  That motion was moved by Eunice O’Keefe and seconded by Mr Aplin.  It was passed on a show of hands with no opposition.  Mr Hookey agrees that Ada Walden, Kathy Willetts and Richard Suttor are senior Waanyi persons.  He also agrees that Eunice O’Keefe is a senior Waanyi woman.  They are all much younger than he is.  Mr Aplin is also younger than Mr Hookey, but a knowledgeable person. 

196                                       A number of members of the Minnie family attended the meeting, including Mr Phillips, Mona Phillips, George Chong, Rose Iles, John Turner and others.  Mr Blackwood also attended. 

197                                       Mr Hookey says that after the Minnie family members left the meeting (prior to a mediation conference) the “young ones” did all the talking.  He sat with the other old Waanyi men and listened.  If an older person tried to say anything, “the younger ones would butt in, talking as if they knew everything. You couldn’t get a word in”.  Some of the “young ones” included Freddy O’Keefe and Troy Hookey: TS 501 l 4.

198                                       Mr Hookey said that all of the descendants of Minnie, including the Kings, Ah Kits and Chongs, are Waanyi because they are the “right blood”, suggesting that he understands Waanyi identity to depend upon descent.

Eunice O’Keefe

199                                       Ms O’Keefe was born in 1951 at Doomadgee Hospital.  She now lives at the Boodjamulla National Park where she works as a ranger.  Her parents were Sally and Jim O’Keefe.  Sally’s parents were George and Polly Alroy.  Her father’s mother was known as “Minnie”, a Garawa woman.  She was not the Minnie named as Mr Phillips’ ancestor.  Ms O’Keefe had six brothers and five sisters.  She has six children of her own, their father being Les Gallagher.   

200                                       Ms O’Keefe and her parents left Doomadgee when she was quite young.  She grew up around Malbon, a railway siding between Mount Isa and Cloncurry.  She went to school there, at Kajabbi and in Mount Isa and grew up in that general area.  She lived for some years in Mount Isa, married there and had her children there.  When she and her husband separated, she took the children to Doomadgee where they were raised by her parents.  They were then of school age.  Ms O’Keefe went to Borroloola and lived there for about 15 years.  She worked on stations around Borroloola and Bedourie as a station cook.  She also worked in child care, in old people’s homes and at Meals on Wheels.  She returned to her country to be with her children, grandchildren and siblings. 

201                                       Ms O’Keefe is a Waanyi woman and was told by her mother that her skin is Nangalama.  Her mother, Sally, was a Waanyi woman through her mother, Polly.  Her grandfather, George, was a Warramunga man from the Northern Territory.  Ms O’Keefe’s mother’s country included the Lawn Hill and Riversleigh areas which had been her grandmother Polly’s country, she having been born around Lawn Hill.  Ms O’Keefe’s mother showed her all of the places where she used to walk as a young girl.  Ms O’Keefe’s father was a Garawa man.  His country was in the Northern Territory.  Ms O’Keefe chose to take her mother’s “side” and does not think of her father’s country as being hers.  Her husband is a Waanyi man.  His father was Harry Gallagher.  Ms O’Keefe’s children are Waanyi because she and her husband are Waanyi.  Apart from her mother, Ms O’Keefe was told about her country by Nancy Carlton, Nancy Gregory, Libby Peters, Pat Bell, Robert Doolan and Reggie Carlton.  They knew about her family history because they had grown up and walked the country together.  They were tied to the country and used to walk it.  The families were connected to the Lawn Hill and Riversleigh areas.  Other families with strong ties to those areas are the Doolans, the Wilsons, the Burgens, the Carltons and the Dicks.  They all have the same “say” over that country.

202                                       In her work at the national park, Ms O’Keefe acts as a liaison officer between the Waanyi people and the relevant government departments and visitors.  If there is a need to inspect work in progress, she arranges for the elders to attend.  She consults with the elders, particularly her mother and Robert Doolan, Pat Bell, Reggie Carlton, Tommy Savill, Eric King, Archie Black, Libby Peters, Nancy Gregory and Nancy Wilson.  Some of these people have now passed away.  Prior to her starting this work she was told by her mother and some of the other women where she could and could not go.  Men’s sites were identified.  She does not visit them because of what she was told by the old people.  She gets the old men to attend to any work in those areas.  If the work is in a women’s site she attends to it personally.  She does not speak about men’s places in the park.  She may speak about some things to do with women’s places, but not all.

203                                       Although Ms O’Keefe claims to be a traditional owner of all of Waanyi country, the main areas for her family are Lawn Hill and Riversleigh.  She does not “talk for” the other places.  For example, Elizabeth Creek and Blue Hole are in Waanyi country, but the families having the “say” with respect to those areas are the Diamonds and Ossie Punjaub’s family.  She has never known the Waanyi people to disagree about which family comes from which part of Waanyi country.

204                                       Ms O’Keefe fishes “down past Adel’s Grove” which is part of her country.  She also fishes at Riversleigh.  If she is in Doomadgee she goes fishing at Blue Hole and at Bella, an outstation belonging to Lawn Hill Station.  It is a waterhole on Lawn Hill Creek.  If she wants to go fishing on the coast north of Doomadgee, in Gangalidda country, she asks her sister-in-law, Katherine O’Keefe, who is a Gangalidda woman.

205                                       When Ms O’Keefe fishes she catches enough to feed herself and cooks and eats it.  She does not waste it.  She was taught this by her mother.  Her mother also taught her that when she has finished eating fish or turtle she should burn the bones:

So that it will be good next time you go back fishing.  You’ll catch more fish, or the turtle or fish will be fat.  That’s the law, you have to burn their bones.  If I didn’t do this, when I returned to that place I won’t catch any fish.  My mother also taught me that meat and fish had to be cooked on separate fires. 

206                                       In the event that somebody claimed that he or she was Waanyi, she would ask the person to identify the persons to whom he or she was related, his or her family name and the identity of his or her grandparents.  She would also ask that he or she identify his or her skin, the country from which he or she comes and the places which he or she knows in that country.  She would ask those questions in order to make sure that the person was not telling lies about being Waanyi, and so that she could trace his or her family.  To find out if a person is Waanyi, it is important to find out how he or she fits into the other Waanyi families and into the country.  If Ms O’Keefe was unable to work out for herself how the person fitted in, she would discuss the matter with old people who might know more about the family and where it came from.  If they could not “fit them in, and if the old people could not identify the person’s family, she would not know whether the person was Waanyi or not.  He or she might be, but the Waanyi people would not know.  If the old people worked out who the person was, his or her family and country and could “put them on Waanyi country”, then the Waanyi people would accept the person.  She said:

We cannot turn them away.  That would cause a big fuss.

207                                       When Ms O’Keefe was living in Mount Isa she was friends with Mona Phillips and Margaret Body.  Margaret Body is now her daughter’s mother-in-law.  Her daughter, Kerri-Anne lives with Margaret Body’s son.  Margaret Body’s maiden name was Ah Kit.  Ms O’Keefe believes that she is Janie Ah Kit’s daughter.  She would see Mona and Margaret in town in Mount Isa and talk to them as friends.  She did not hear them claim to be Waanyi.  The subject never came up.  She does not know if they knew that she was Waanyi.  Ms O’Keefe also knew the Yamaguchis who lived in Burketown.  She knew them when she was growing up there.  She was about 10 or 11 years old.  Her parents knew them.  She saw “old Mrs Yamaguchi” at Woods Lake in Burketown, but did not know her background or where her mother had come from.  Her parents did not say that the Yamaguchis were Waanyi or Gangalidda or anything else.  She did not ask.  She was very young at that time.

Fredrick Charles O’Keefe

208                                       Mr O’Keefe was born in 1956 at Mount Isa and has lived all his life in Doomadgee.  He went to school there and then went away to do stock work.  He was at Lawn Hill for four years and then on surrounding stations.  When he was not working he returned home to Doomadgee.  He has also worked at Century.  He is the mayor of Doomadgee Shire Council.  His father is Tom O’Keefe and his mother, Ruth O’Keefe.  His father’s mother was Mary Starr, but her name was “really” Namura.  Her country was Najabarra.  He grew up knowing her.  King George and Murandoo were his grandmother’s brothers.  He thinks that his grandfather was white.  He did not know him.  His brothers are Thomas and Rodney (both deceased), Edwin, Lloyd and Dwayne.  He has sisters, Elanore, Delwyn, Christine and Isabelle.  His wife, Anne, is an Aplin.  They have three children, Kahli, Fredrika and Adriel.

209                                       Namura, his grandmother, was a Waanyi woman.  His father is a Waanyi man, as is he.  He grew up knowing this because his grandmother had told him.  His wife and her family are also Waanyi people.  He has never heard anybody say otherwise.  Najabarra country, within the Waanyi country, is his father’s country and his.  On the other side of the Northern Territory border, there is an outstation called Najabarra which takes its name from a rock hole called Najabarra with rainbow dreamings.  However the country called Najabarra is much more extensive, being on both sides of the border.  It extends into Queensland as far as Gorge Creek.  He was told of these boundaries as he was growing up, mainly by his grandmother and two aunts, Shirley Johnny and Ada Walden.  His family shares the Najabarra country with other families including the Cameron family, the King family, the George family and Ada Walden.  They are all part of his extended family and are descended from his grandmother’s brother, King George.  His family also shares the country with the Rockland family.  Together, all of those families are described as “Top End Waanyi”.  The people of Gregory are referred to as “Bottom End Waanyi”. 

210                                       Mr O’Keefe’s maternal grandmother, according to his mother, was Thelma Jacob, a Gangalidda woman.  Mr O’Keefe’s mother showed him and his siblings her country, Gunamulla on the coast in Gangalidda country.  They told him a lot about that area, identifying sacred areas and the swamps which were safe for swimming and those which were not.  Although Mr O’Keefe goes to Gangalidda country to hunt, he does not consider himself to be Gangalidda.  He has followed his father and is Waanyi.  He does not have much “say” over what happens on Gunnamulla country.  His wife’s country is around Gregory.  He has never heard anyone say that the Aplin family is not one of the right families for Gregory.  The other main families for Gregory are the Gregory family, the Donaldsons, the Doolans, the Jacobs and the Johnnys.  The main families for Riversleigh are the Doolans, the Carltons, the Georges, Peter O’Keefe’s mob and the Dicks.  The main families for Lawn Hill are the Darby and Cubby families through old King Darby and King Pedro, the Hookeys and the Kings.  The Willetts and Chongs are also from that area.  For Elizabeth Creek the “right” people are Ossie Punjaub’s family, the Brown family, the Diamond family and the Douglas family.  He has never heard disagreement about these matters. 

211                                       He knows almost everybody who owns Waanyi country.  He gained most of this information from his father and grandmother, but also from others.  He worked with many Aboriginal people on the stations and derived information from them.  In particular he remembers working with Barry Dick, an old Gangalidda man called Wilfred Walden who is now deceased, Len Dick, an old Waanyi man, Percy Gilbert who is an old Gangalidda man and Pic and Beryl Willetts from a place called Watson and the Punjaub area.

212                                       Mr O’Keefe’s skin is Burralangi.  Gangalidda people, Yanyula people and Garawa people all have the same skin lines as Waanyi people.  People with different skins have different areas of country.  For example, Fish River country is Mambaliya country.  Being Waanyi means belonging to Waanyi country.  A person will be Waanyi if his or her parents are Waanyi.  If one parent is Waanyi, and the other is from another language group, then Mr O’Keefe considers that the person should follow his or her father.  Nonetheless Mr O’Keefe is aware that Waanyi people accept that people may follow their mother and be Waanyi.  A person cannot be Waanyi unless he or she has ownership of part of Waanyi country.  A person born in Waanyi country is not necessarily a Waanyi person, nor is long term residence necessarily a qualification.  There must be a link to the country.  If a person unknown to Mr O’Keefe asserted that he or she was Waanyi, an owner of Waanyi country and linked to that country, he would ask the person to identify his or her grandparents, their country and great-grandparents.  He would try to link the person with other Waanyi families and with country.  In that process the opinions of Waanyi people are significant.  He said:

People “get angry” if you try to cross the boundary, that’s what we call it.  It’s when you try to say that you belong to a particular country and tribe, when the people of that tribe know that you don’t, they all get upset and say things like, “You don’t belong to this tribe!  Go find your own tribe!  Go back to your own country!”

213                                       Such disputes occur from time to time.  They are usually resolved by the elders putting such offenders “back in their place”.  There have been disputes with Gangalidda people concerning boundaries.  They were sorted out by the “old people”. 

214                                       Mr O’Keefe is aware of three different Minnies.  One was Minnie Pluto.  She was a Garawa woman, related to Ted Pluto.  Mr O’Keefe knew her personally.  A long time ago, there was another Minnie living on the Nicholson River at Doomadgee, married to a man known as Jumbo.  Her name was Minnie Jumbo.  He saw her when he was at school.  He was told that she was a Yanyula woman.  He seems to have understood that Laura Yamaguchi, whom he met when he was about 14 or 15, was descended from a third Minnie, many of whose descendants live in Cloncurry and Mount Isa.  He met Mr Phillips at the Adel’s Grove meeting in September 2007. 

Henry Aplin

215                                       Mr Aplin is sometimes called Harold.  He was born on Gregory Station in 1951.  His parents were working there, his mother doing housework and his father doing stock work.  His father was Morris Aplin who was born at Louie Creek on Lawn Hill Station, not far from the Chinaman’s Garden.  People living and working at Lawn Hill Station would camp on Louie Creek during their vacations from the station.  Mr Aplin’s paternal grandfather was white or Afghan.  Mr Aplin never met him.  His father had a sister who was removed from her family at Lawn Hill because she was “half-caste”.  She was sent to Mapoon and may have died there.  His brother, Freddy, met her in Cairns some years ago.  She had grandsons in that area.  Mr Aplin’s father had another brother who was deaf and dumb.  That brother grew up at Lawn Hill.  Mr Aplin’s father grew up with white people at Gregory.  He was reared by the Clarke family and, at a later stage, by the Foster family.  The Fosters owned the hotel at Gregory.  It seems that, on Gregory Station, his father was not treated as an Aboriginal person, perhaps because of the way in which he had been reared.  In particular, the family did not live in the reserve with other Aboriginal people.

216                                       Mr Aplin’s mother was Doris Aplin (nee Riversleigh).  She grew up at Gregory and was born either there or at Riversleigh.  Her parents were Jack and Lorna Riversleigh (nee Jackson).  They were both Waanyi people.  His mother had a sister called Mavis Foster who still resides on Palm Island.  She is Bradley Foster’s grandmother. Mr Aplin’s grandmother also had a brother, Henry Jackson.  Jack Riversleigh was born at Lawn Hill Station, but Mr Aplin is not sure where his parents were born.  Lorna Jackson’s parents were Waanyi people from the Northern Territory.  Mr Aplin does not know exactly where they came from.  His mother had a sister, Vera Johnny, who is now deceased.  She had two other sisters who had different mothers but the same father.  They were Annie King and Elaine Cairns.  Mr Aplin had four brothers and four sisters. One brother died when he was very young.  Mr Aplin’s wife was Pam Aplin.  She is deceased.  They had seven children and “plenty of grandchildren”.

217                                       Mr Aplin says that a person is Waanyi if his or her parents are Waanyi.  If only one parent is Waanyi, then the person may choose which parent to follow.  Other Waanyi people will not choose for such a person.  Usually, people follow their fathers.  Mr Aplin’s father was a Waanyi or Garrawa man through his mother.  His father’s country was in the Northern Territory.  Mr Aplin is not exactly sure of the location.  He does not know much about his paternal grandfather.  His father was Jack Shadforth’s brother.  He did not meet his father’s mother.  She died on the Macadam Plain whilst walking from Lawn Hill to Gregory with Mr Aplin’s grandfather and father, the latter being then a child.  She was buried there.  His father showed him his grandmother’s burial place. 

218                                       Mr Aplin is a Waanyi man.  He grew up knowing this, and has always believed it to be so.  Gregory Downs Station is on Waanyi country.  He has learnt about Waanyi country from various people including his parents, Bubi Dick, Albert George, Don George, Blue Bob and others.  He also learned much about the subject whilst working on stations.

219                                       Different Waanyi people or families own different parts of Waanyi country and therefore have a bigger “say” concerning those areas than do other Waanyi people.  The Diamond family and the Douglas family are the main families for Top Elizabeth.  Ossie Punjaub’s descendants and the George family (through Tommy George’s wife) own the bottom end around Bluewater.  That is Wirrigadjigadji (or catfish) dreaming country.  Old Sydney Punjaub (Ossie Punjaub’s grandfather) was called “Old Catfish”.  The main people for Gregory are Mr Aplin’s family, the Doolan family, the Gregory family, the Carlton family and the Bells.  He has fished and hunted all over his country and knows it very well.  Visiting his country is important to him.  He expects to be buried there when he dies.  The main people for Riversleigh are Peter O’Keefe’s family, the Burgens, the Dicks and the Carltons.  The main people for Lawn Hill are the Darby family (including Roy Seccin who is deceased), the Pedro family (including Len Cubby whose father was Cubby Pedro), the Mooreland family and the Dick family, a different family from Barry Dick’s family.  The Lawn Hill Dicks include Tommy Dick, Archie Dick and Charlie Dick who has passed away. 

220                                       Mr Aplin remained on Gregory Station until he was old enough to go to school.  The people there were mainly Waanyi, particularly the Doolans, the Carltons and the Georges.  He and the other children would spend their days fishing and hunting in the vicinity of the river.  They would go out with an old police tracker called Willy and his wife, Gypsy.  He understood the tracker to be a Waanyi man.  Willy would take a wooden spear when he went fishing.  Mr Aplin’s mother also used to take him fishing in the Gregory River to catch bream, catfish and turtles.

221                                       Mr Aplin went to school in Burketown and then in Doomadgee.  In Burketown he camped with Jack Shadforth, his uncle.  He understands that when he was about ten years of age, his father could not afford to keep him at school in Burketown.  As a result, he was sent to school in Doomadgee where the missionaries accommodated and fed children.  He remained in Doomadgee until he turned 15 when he left school to work.  Whilst he was at school, he would return to Gregory for school holidays.   

222                                       For seven years after he left school, he went mustering and droving with Arthur Anderson, up and down the Leichardt River.  He worked on various stations including Planet Downs, Lawn Hill, Riversleigh, Gregory, Morestone, Split Rock, Barkly Downs and Punjaub.  He worked with Barry Dick’s father, Bubi Dick, Eric Gypsy (the son of the old police tracker, Willy and his wife, Gypsy), Archie Black, Gordon Douglas and Albert George.  He met them at either Riversleigh Station or Gregory Downs Station.  He understood them all to be Waanyi men.  At Punjaub Station he worked with Albert Daley, David Escott, Richard Brookdale and many others.  His last job as a ringer was at Planet Downs.  He stopped working there when the Carrington family sold the property.  He then moved to Doomadgee and worked in the butcher’s shop and as a police liaison officer.  He later lived in Camooweal for a while where he again worked in a butcher’s shop.  He returned to Gregory Downs.  At that time Aboriginal people were still camping as there were no houses.  Later, he worked in Doomadgee for the Carpentaria Land Council, and then as a ranger at Lawn Hill National Park.  He was subsequently involved in cultural heritage site clearances in connection with the development of the Century Mine.  He performed that work with other Waanyi men including Don George, Peter Bell, Robert O’Keefe, Rex Jacob and an old Garawa man, Blue Bob.  He regularly goes bush for fishing and hunting.  At one stage he went every day, but now he goes about once a week. 

223                                       Mr Aplin would decide whether to accept a person’s claim to be Waanyi in much the same way as is outlined in other evidence.  In the event that he could not satisfy himself one way or the other, he would ask the old people and adopt their decision.

224                                       He knew Laura Yamaguchi.  She was living in Burketown when he was about nine years of age.  He went fishing with her.  She spoke to him in English.  He did not know that her mother was called Minnie.  He also knew Arthur Yamaguchi who was running the mail service in Burketown.  He knows Nellie Chong who used to live at Woods Lake near Burketown.  He does not know whether she is Gangalidda, Garawa or Waanyi.  He has never asked her and has not heard it from anybody else.  He met Mona Phillips in Mount Isa about five years ago.  He stayed with her for a couple of nights.  He was with Jason Ned who knows her.  He did not talk to her much.  He had not previously met her.  He saw Mr Phillips at a meeting at Adel’s Grove. 

225                                       He was told that Kenny Booth in Burketown is descended from Minnie.  He knows him but does not know whether he is Waanyi or Gangalidda or “anything”.  He has never asked.  He has not heard anything to make him think that Laura Yamaguchi, Arthur Yamaguchi or Nellie Chong were, or are, Waanyi people.  He does not know where they came from.

FACTUAL FINDINGS

226                                       This case is primarily about Minnie’s language affiliation and that of her descendants.  From the applicant’s point of view, the case is very much about the views of Waanyi people and other indigenous people who had, or have close connections to Waanyi people.  The applicant effectively submits that Waanyi identity depends substantially, if not entirely, upon acceptance by other Waanyi people that the person in question is of Waanyi descent.  Mr Phillips submits that Waanyi identity depends upon biological descent or adoption and acceptance of that fact by one or more senior Waanyi persons.  No question of adoption has been raised in this case, but there is always the chance that a relevant person’s affiliation may have been based on adoption, although such fact may no longer be known.  Biological descent is now capable of scientific demonstration, but this case has not been conducted upon the basis that a person’s Waanyi identity must be established in that way.  Although Mr Phillips asserts reliance upon biological descent, he seems to accept that such descent will generally be reflected in a person’s views as to his or her affiliation and the views of family members and others.     

227                                       People form and express views in varying circumstances.  They may hold or express those views with varying degrees of conviction, and with varying degrees of justification.  Where a witness gives evidence of his or her views, those views can be tested in cross-examination in the same way as evidence as to facts can be tested.  Reported views cannot be so tested.  For that reason one would normally be inclined to prefer the views expressed by witnesses over those of others which are merely reported by witnesses.

228                                       However, in the present case, the views of all witnesses as to relevant affiliations are almost certainly based upon the views of others.  I infer that those views have been passed down to the witnesses, in some cases over many years and through numerous generations.  Those “inherited” views cannot really be challenged in cross-examination.  On the other hand, the reported views of non-witnesses may be of great value, notwithstanding the fact that their views cannot be tested in cross-examination.  In this case, it is likely that earlier generations had a clearer knowledge of Minnie’s roots than do present generations.  Where there is unchallenged evidence that a relevant opinion was expressed, it may still be necessary to consider its reliability, having regard to the particular person in question, the likelihood that he or she would have had a reasonable basis for the opinion, and whether it is likely that he or she was being truthful and was otherwise reliable.  Much may depend upon the circumstances in which the opinion was expressed.

229                                       Of the witnesses, only Yuen Hookey had actual contact with Minnie.  However some of the reported opinions are of people who knew her.  Roy Seccin knew her and asserted that she was Waanyi.  Nellie Chong saw Minnie (her grandmother) once, during the Second World War.  In 2000 she told Ms Fietz that her mother and grandmother were Gangalidda women.  However, in 2006, she told Professor Trigger that “nobody knew for sure where [Minnie] came from”.  She told Mr Blackwood that she did not know the Aboriginal identity of her mother or her grandmother.  Professor Trigger considers that she tended to stress the places where people were “bred and born” as determining Aboriginal identity.  She did not suggest to Professor Trigger that her views as to her own Gangalidda identity, or her mother’s, were based on any view as to Minnie’s affiliation, nor that she had derived any information on that topic from within her family or from those with whom Minnie was living.  Indeed, she said that her family was reluctant to discuss its background.  Although the identification of her mother and aunts as Gangalidda might suggest that Minnie was Gangalidda, Nellie did not so assert to Professor Trigger or to Mr Blackwood.  It is possible that her assertion to Ms Fietz was an assumption which she reconsidered when pressed on the matter by Professor Trigger.  There is also the possibility that her view that her mother and aunts were Gangalidda was based on their long association with Burketown.  The evidence suggests that some or all of them may have spoken Gangalidda.  That matter is potentially of some significance.  However it may have been the consequence of growing up and living in Gangalidda country rather than of Gangalidda descent.  I observe that affiliation is not directly related to geographical factors such as place of birth or residence.  However those matters may provide a basis for inferences as to affiliation.  Nonetheless, it is important to keep the distinction in mind.  Understandably, many of the lay witnesses did not always do so.  I suspect that on occasions, the anthropologists also failed to do so.

230                                       Mr Blackwood’s report suggests that Clara Foster knew Minnie’s family well.  One might have inferred that she knew Minnie.  However there is no clear assertion to that effect.  Clara told Ms Fietz that Minnie was Gangalidda, but she told Mr Blackwood that she did not know her background.  Other witnesses may have had some contact with Minnie, but there is no suggestion of any relevant information derived from such contact.

231                                       I have previously referred to the tape recording of the conversation between Mr Phillips and Mr Arthur Peterson, a senior Waanyi man, which conversation occurred in early 1991.  Mr Phillips was then a student.  The discussion concerned his grandmother, Bessie, who was one of Minnie’s daughters.  Although the context is not entirely clear, it seems that Mr Peterson identified Bessie as Waanyi, although he suggested that she was born in Injilarija country.  He particularly identified a place called Kilgirri or Kilbilli Station.  Mr Peterson was a senior Waanyi man whose views would normally have been respected.  However the applicant submits that there is room for uncertainty as to whether he meant to identify Minnie as Waanyi or, if he did so, whether he may have done so out of a desire to tell Mr Phillips what he thought that he wanted to hear.  I see little or no evidence in support of either submission in the transcript of the tape, although I am willing to concede that the tape is, itself, not entirely easy to understand.  It must be accepted that Arthur Peterson was willing to ascribe Waanyi affiliation to Mr Phillips, knowing that he was Mona Phillips’ son.  She seems to have been well known to him.  He refers to her as “the boss of all this house”, apparently referring to the house at which the interview was being conducted.  I note the criticisms made as to the persuasiveness of this evidence by both Professor Trigger and Dr Martin.  However I do not consider that I should dismiss it out of hand. 

232                                       The evidence of Mr Hookey is also of particular importance.  As I have said, Mr Hookey is of Waanyi descent through both his father and his mother.  His paternal grandmother was Violet Darby who was Roy Seccin’s aunt (his father’s sister).  Mr Hookey has lived most of his life away from the major Waanyi population centres, but that is not a basis for discounting his childhood memories.  He grew up with his mother and grandmother who were both Waanyi people.  Minnie was living next door to them in Burketown and they recognized her as Waanyi.  Although Burketown is not within Waanyi country, Professor Trigger recognizes it as an area in which Waanyi people have historically resided.  That one Waanyi family living in Burketown, and in close proximity to Minnie recognized her as a Waanyi woman may not necessarily demonstrate that she was Waanyi, or that she was so recognized by the broader Waanyi community.  However it is a basis for drawing those inferences.  It seems unlikely that in a relatively small community, one Waanyi family would have held views which differed substantially from those held by other Waanyi families in the area.  It is true that other present day Waanyi people, including some of Minnie’s descendants, have no knowledge of any such Waanyi affiliation.  On the other hand many of those people either do not know her affiliation or assert Gangalidda affiliation, at least for her daughters.  The latter possibility cannot be totally discounted, but there is the concern expressed by Professor Trigger that Nellie Chong’s views may be based on their geographical location (in Burketown).  That risk may not be limited to Nellie Chong. 

233                                       The fact that those living close to Minnie considered her to be Waanyi is a basis for inferring that she, herself, identified in that way.  Thus Mr Hookey’s evidence is much more important than it may, at first blush, appear.  If it is accepted as credible and reliable, then it may be the basis for significant inferences concerning both Minnie’s view of herself and the views of her Waanyi contemporaries, or at least of those living in close proximity to her.  If Minnie believed herself to be Waanyi, it was probably because she believed that at least one of her parents was Waanyi.

234                                       As to the question of credibility and reliability, I see no justification for doubting Mr Hookey’s evidence in either respect.  He seemed to me to be an intelligent and straight-forward person who was trying to give his best recollection of events which occurred many years ago.  The primary attack upon his evidence was based upon his failure to speak out at Waanyi meetings concerning the Minnie family.  However, in my view, his reticence has to be seen in the context of his own history.  Much of his life has been spent away from Waanyi people.  It seems that notwithstanding his advanced years, he may not be accepted as an elder in terms of the influence which he is able to exercise.  This was certainly the line taken by counsel in Mr Hookey’s cross-examination.  Mr Hookey concedes that others may know more about Waanyi business than does he.  In those circumstances it is not surprising that he should have chosen to sit mute rather than participate in a debate in which his views may have been given less weight than, perhaps, they deserved.  I accept his evidence as being both honest and reliable.  It is, I consider, evidence which should be given considerable weight.  Very few of the other witnesses were able so clearly to identify the bases upon which they attributed a particular affiliation to Minnie.  Further, his views are based on direct contact with Minnie and those with whom she lived.  His account of staying with one of Minnie’s daughters in Camooweal in 1944 might also suggest a close association between the families, perhaps based on shared Waanyi affiliation. 

235                                       Mr Seccin’s evidence must be seen in a similar light.  He was the son of Violet Darby’s brother, King Darby.  He has been treated by all anthropologists as being a senior Waanyi man, very knowledge about Waanyi affairs.  However he seems not to have discussed the Minnie question other than with Mr Blackwood.  Mr Blackwood spoke with him in 2004.  He was then about 86 years of age.  Mr Seccin was born at Lawn Hill, presumably in about 1918, and grew up there.  Professor Trigger suggests that although Minnie lived and worked at Lawn Hill, this was probably from about 1888 to about 1916.  Professor Trigger observed in re-examination that during the 1880s and into the 1920s, there were many language groups at Lawn Hill.  If Minnie was born at Lawn Hill, it was probably in the early 1870s, before the arrival of other language groups.  Another possibility is that she came as part of the incursion by those groups or from another part of Waanyi country.  The date of Minnie’s departure from Lawn Hill is based upon the fact that Minnie’s daughter, Bessie, was born at Woods Lake in 1916.  If Minnie left Lawn Hill in 1916 or a little later, Mr Seccin could not have known her there.  Further, his recollections of her involve her second husband, Alajay.  Although Alajay may have travelled to Lawn Hill from time to time, he and Minnie lived together in Burketown.  Thus it seems that Mr Seccin’s contact with her probably occurred there rather than at Lawn Hill, although whilst he was still living at Lawn Hill.

236                                       Mr Seccin left Lawn Hill during the Second World War, moving to Creswell Downs in the Northern Territory.  Mr Seccin’s clear identification of Minnie as being a Waanyi woman is attacked by counsel on behalf of the applicant.  Both Professor Trigger and Dr Martin doubt the reliability of that view.  It is reasonable to infer that Ms Fietz also did not consider that the evidence supported that conclusion.  However I find it difficult to discount Mr Seccin’s opinion, given the high regard in which he was otherwise held as a senior and knowledgeable man.  There was some suggestion that he may have been confused for one reason or another.  But there is no clear evidence of that.  It is merely a theory.  I do not understand there to be any direct challenge to Mr Blackwood’s evidence that he had the conversation with Mr Seccin, although there is some challenge to the accuracy of his report of it, based on variations between that account and his field notes.  Notes are often designed to prompt memory rather than to be, themselves, a precisely accurate account of the events in question.  The way in which notes are taken and used varies very much from person to person.  In general, I accept Mr Blackwood as an accurate reporter.

237                                       I have already dealt with some of the criticisms of Mr Seccin’s views.  I have discounted Dr Martin’s suggestion that the identification of Minnie’s father as being from Lawn Hill is not a reliable indication that he was Waanyi, given that, in Dr Martin’s view, Lawn Hill was not in Waanyi country at his likely date of birth.  I have demonstrated by, reference to the evidence of Professor Trigger and Ms Fietz, that parts of Lawn Hill were, in fact, within traditional Waanyi country prior to the eastern migration.  Dr Martin accepts that Mr Seccin’s discussion of Minnie’s background is consistent with his observations as to the skins system.  Dr Martin argues that such consistency may be the result of a rationalization designed to support Mr Seccin’s assertion that Minnie was Waanyi.  However there is no evidence suggesting a motive for Mr Seccin’s making any assertion which he did not believe to be true, let alone engaging in such a process of subterfuge.  It seems unlikely that a person noted for his seniority and knowledge would compromise himself in that way. 

238                                       Professor Trigger’s criticism of the evidence is more persuasive, pointing to the unlikelihood that the woman, Opal, was Minnie’s sister and the surprising fact that much of the other evidence concerning Minnie’s father had not previously come to his attention or the attention of other researchers.  He also suggests that the use of the term “Ganggu” by Mr Seccin is not consistent with other known facts. 

239                                       I do not necessarily accept that Mr Seccin’s account was, in all respects, accurate.  However I see no reason to doubt that he believed that Minnie was a Waanyi woman.  He associated Minnie with Lawn Hill and identified her second husband.  He also seems to have known her daughter, Sarah.  I accept that Mr Seccin knew Minnie whilst he was at Lawn Hill and she was in Burketown.  Had there been, in either place, any dispute about her affiliation, one might have expected Mr Seccin to have known of it.  He knew her when he was quite young, although after she had left Lawn Hill and was living in Burketown.  Nonetheless, if she left Lawn Hill in about 1916, one would expect memories of her to have been relatively fresh during Mr Seccin’s early years.  Minnie had lived at Lawn Hill for many years prior to her departure.  He was born in about 1918.  It is difficult to resist the inference from Mr Seccin’s evidence that during his time at Lawn Hill, the Waanyi people there accepted her as a Waanyi person.  Such acceptance must have pre-dated her departure from Lawn Hill and may have dated from 1888 or earlier.  It follows from Mr Seccin’s views, using the logic which I have previously used in connection with Mr Hookey’s evidence, that Minnie identified as a Waanyi woman.  It also follows that at the time at which Mr Seccin knew her, she was probably accepted as a Waanyi woman by the Waanyi community in Burketown.  The evidence does not disclose the frequency of their contact, and so we do not know whether it continued until his departure from Lawn Hill during the Second World War. However Mr Hookey’s evidence also supports the inference that she was accepted as Waanyi by the Waanyi people at Burketown until her death in 1943.  Mr Seccin lived his life as a Waanyi man.  I infer that throughout that period, he accepted that Minnie was a Waanyi woman.  It is reasonable to infer that those Waanyi people with whom he had contact throughout his life, and from whom he derived information about Waanyi affairs, provided him with no basis for departing from that view.

240                                       Mr Seccin and Mr Hookey were, in my view, the people whose views concerning Minnie were most likely to be reliable.  They both knew her.  Their respective Waanyi identities do not depend upon her status as a Waanyi woman.  When one also takes into account Mr Peterson’s statement, it is difficult to resist the conclusion that the reason for this shared view is that it is based in truth.

241                                       That is not to denigrate the evidence of others.  There are obviously substantial differences of opinion on the subject, but one cannot overlook certain unchallenged facts.  Minnie had a long historical association with Lawn Hill.  Professor Trigger considers that she was living and working there from 1888.  If she was in her late 60s when she died in 1943 then she commenced work there at about age 13.  That fact may justify the inference that she was born there.  Birth at Lawn Hill would not necessarily prove her Waanyi identity, but it may support that inference, particularly as such birth would have pre-dated the arrival of other language groups in the 1880s.

242                                       I should say something more about the significance of Minnie’s marriage into the Chinese community.  At least some of her daughters married Chinese men and lived at Woods Lake in Burketown, that area apparently being an enclave for people of mixed descent.  As the evidence demonstrates, where a person is descended from two different cultural groups, he or she may have to choose the group with which he or she will primarily identify.  There may have been good reason for a person of mixed Chinese-indigenous descent to choose to identify with his or her Chinese side rather than the indigenous side, given conditions prevailing in the late 19th and early 20th centuries.  It might not be surprising that a person should have chosen to suppress his or her indigenous affiliation.  It may be that part of the difficulty with which we are presently faced arises, as Nellie Chong suggests, from the fact that members of a particular generation of Minnie’s descendants were discouraged from enquiring as to the family background.  That discouragement may have led to varying degrees of speculation in the search to identify family roots, a search which we all undertake, at one time or other. 

243                                       The other factor which must be kept in mind is the so-called Diaspora of the Aboriginal peoples.  Although the Waanyi people may not have been as adversely affected as their neighbours by the violence which marked the latter years of the 19th and early 20th centuries, they were nonetheless dispersed, as Professor Trigger reveals in his identification of the various Waanyi population centres.  Again, I must keep in mind the conditions of the time and, in particular, the absence of easy communication between geographical areas.  It is, for example, possible that a family might have been recognized at Lawn Hill or in Burketown as being Waanyi, but not at Doomadgee or Borroloola, simply because the relevant information had not travelled to those locations.  No doubt there has always been movement to and from those locations, but that would not guarantee that all knowledge was shared.  There were also people, such as Mr Hookey, who left Waanyi country to work elsewhere, taking his knowledge and memories with him. 

244                                       When all of these factors are taken into account, it becomes easier to understand the problems which Mr Phillips and the Minnie family have faced in trying to prove their affiliation.  They were fortunate that there was still an opportunity to garner relevant information, particularly from Mr Seccin, Mr Hookey and Mr Peterson. 

245                                       The most likely alternative to Waanyi affiliation appears to be Gangalidda affiliation.  A third possibility is Garawa affiliation.  Minnie’s presence at Lawn Hill at age 13 seems at least marginally more consistent with her being Waanyi than either Gangalidda or Garawa.  A number of witnesses have suggested that her daughters were all Gangalidda, although few, if any, ascribed that opinion to any direct statement by any of those women.  There is some suggestion that Minnie may have had an indigenous husband prior to her Chinese husband, but the better view seems to be that those daughters who had children were all, themselves, of mixed indigenous-Chinese descent.  Thus any indigenous affiliation must have been derived from Minnie or by adoption.  One cannot overlook Nellie Chong’s claims that at least in her family, the children were discouraged from discussing their backgrounds.  The possibility of uninformed guesswork cannot be completely discounted.  According to Professor Trigger, Nellie seemed to attribute affiliation to geographical location rather than descent.  It is quite likely that, at some time between the early 20th century and the present time, somebody has attributed Gangalidda affiliation to Minnie’s daughters simply upon the basis that some were born in Burketown, all resided there for substantial periods of time and some or all spoke Gangalidda.  It is not possible to identify the point in time at which the question of Minnie’s affiliation and that of her descendants first became the subject of serious enquiry.  Probably, it was quite recently.  My reason for placing substantial weight upon the evidence of Mr Hookey and Mr Seccin, rather than upon that of other witnesses, is that they identify the time at which each of them first learned that Minnie was Waanyi.  In each case the relevant view was formed during Minnie’s lifetime and was, I infer, based upon information received in an environment in which any contrary view would probably have been apparent. 

246                                       There is also some direct evidence as to statements made by Minnie’s daughters suggesting Waanyi affiliation.  Bessie, Ms Phillips’ mother, said that the family was Waanyi.  Sarah told Debbie Chong that they were “inland people, not sea people”, arguably excluding Gangalidda and, possibly, Garawa affiliation.  I again acknowledge that the Garawa people appear to have some inland interests in the Northern Territory.  Laura Yamaguchi told George Chong that the family was Waanyi.  These statements, by themselves would not be sufficient to persuade me to find that Minnie identified, and was accepted as Waanyi.  Nonetheless they give support to the views expressed by Mr Seccin, Mr Hookey and Mr Peterson.

247                                       I do not discount the evidence of Professor Trigger or Dr Martin.  Nor do I base my conclusions upon a general acceptance of Mr Blackwood’s evidence and opinions to the exclusion of the evidence and opinions of the other anthropologists.  Indeed, it must be accepted that the resolution of the case depends substantially upon general acceptance of the research done by Professor Trigger and Ms Fietz, supplemented by the relatively small amounts done by Dr Martin and Mr Blackwood.  As I understand it, neither Professor Trigger nor Ms Fietz excludes the possibility that Minnie was a Waanyi woman.  Rather, they conclude that the question is unresolved.  Professor Trigger seems to be appropriately concerned not to intrude upon the decision-making process of the Waanyi people.  He places significant weight upon the fact that his own previous research had not identified Minnie as a Waanyi ancestor.  One might reasonably have expected that such research would have raised the question.  However Professor Trigger concedes that indigenous genealogical tables are always subject to the prospect of future adjustment.  The status of Violet Darby was apparently in dispute for some time before it was finally resolved by Roy Seccin.  It is significant that notwithstanding his status as a trusted informant, the affiliation of his own aunt should have been resolved at a relatively late stage.   

248                                       As to Dr Martin’s views, I have already said something about his discounting of the possibility that Minnie’s father could have been Waanyi if he were born at Lawn Hill on his probable birth date.  I consider that the exercise which he undertook was based upon a misconception as to the views expressed by Professor Trigger and Ms Fietz concerning the extent of traditional Waanyi country prior to the eastern migration.  I have discarded his suggestion that Mr Seccin may have tailored his views concerning the operation of the skins system to reflect the view which he expressed concerning Minnie’s Waanyi identity.  There is a possibility of such reconstruction, but it falls away as a relevant consideration given the absence of any motive for such conduct by Mr Seccin. 

249                                       In a society which does not rely on written records, questions of descent will be largely matters of opinion.  In those circumstances, it would be foolish to discount such opinions.  It is true that many people believe that Minnie was Gangalidda or Garawa.  Others simply do not know her affiliation.  In the time frame with which I am presently concerned it is to be expected that some people may not, at the present time, know her as Waanyi.  That fact proves nothing, one way or the other.  The possibility that Minnie was Gangalidda or Garawa must also be considered.  However there is the risk that the Gangalidda possibility arose as the product of her residence in Burketown, her daughters’ residence there and the fact that they, or some of them, may have spoken Gangalidda.  As I have said, the latter fact may simply have reflected their long residence in Burketown.  Once it is accepted that Minnie came to Burketown from Lawn Hill, the persuasive value of that Burketown/Gangalidda evidence is reduced.  One must also keep in mind the common occurrence of mixed descent and the difficulties in identification and self-identification which it may pose. 

250                                       On the balance of probabilities, I make the following factual findings:

·                    during her life, Minnie identified herself as a Waanyi woman and asserted such affiliation;

·                    such self-identification was based on her belief that she had at least one Waanyi parent;

·                    Mr Seccin met Minnie in the early to mid-1920s at Burketown whist he was living at Lawn Hill;

·                    From that time he understood that she was a Waanyi woman;

·                    He left Lawn Hill during the Second World War, moving to the Northern Territory;

·                    Mr Hookey resided next door to Minnie in Burketown and, in about 1942, was told that she was a Waanyi woman;

·                    From that time he understood her to be a Waanyi woman; and

·                    He left Burketown in about 1944, returning in 1945 and residing there until 1949.

251                                       In my view these findings support further inferences, based upon the fact that neither man apparently perceived any reason to change his view concerning Minnie’s affiliation.  I infer from this fact that neither became aware of any dissent concerning the question within his family or the Waanyi community in which he was living, or in which he had learnt of Minnie’s Waanyi affiliation.  Although there was a gap between Minnie’s departure from Lawn Hill and Mr Seccin’s first meeting with her, it is reasonable to infer that views at Lawn Hill did not change during that time.  She was a long-standing resident at Lawn Hill.  It is unlikely that she was quickly forgotten.  I therefore infer that:

·                    From 1888 until at least 1939, Minnie was recognized by the Waanyi people at Lawn Hill as a Waanyi woman; and

·                    From about 1916 until her death in 1943, Minnie was recognized by the Waanyi people at Burketown as a Waanyi woman.

MEMBERSHIP OF THE CLAIM GROUP

252                                       The term “native title claim group” is defined in s 253 of the Native Title Act to mean relevantly:

in relation to a claim in an application for a determination of native title made to the Federal Court – the native title claim group mentioned in relation to the application in the table in subsection 61(1); …

253                                       In the table which forms part of s 61(1) the persons who may make application for a determination as to Native Title are:

A person or persons authorised by all the persons (the native title claim group) who according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; …

254                                       Thus the native title claim group must be the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprised in the claim. 

255                                       Pursuant to s 251B:

For the purposes of this Act, all the persons in the native title claim group … authorise a person or persons to make a native title determination application … and to deal with matters arising in relation to it, if:

(a)        where there is a process of decision-making that, under the traditional laws and customs of the person in the native title claim group …, must be complied with in relation to authorising things of that kind—the persons in the native title claim group … authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)        where there is no such process—the persons in the native title claim group …  authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group … in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

256                                       Inevitably, these requirements lead to the conclusion that for the purposes of the Native Title Act, it is the claim group which must determine its own composition.  Any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B.  The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area.  It is not necessary that all of the members of the claim group be identified in the application.  It is, however, necessary that such identification be possible at any future point in time.  A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member.  As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs.  As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt. 

257                                       In Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, Brennan J said at 61:

But so long as the people remain an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.

258                                       In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 at [108] the Full Court of this Court adopted that passage insofar as it concerns mutual identification.  In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ made certain criticisms of the Full Court’s decision but appear not to have challenged the observations of Brennan J in Mabo.  The passage demonstrates that the existence of a relevant society depends upon mutual recognition within the group, this being a necessary characteristic of a society.  It follows that membership of the claim group depends upon similar recognition.  In Sampi v State of Western Australia [2005] FCA 777, French J said at [820]:

There are “emic” bases of identification as Bardi or Jawi.  The term “emic” refers to a perspective which is internal to the culture.

259                                       On appeal in Sampi v State of Western Australia [2010] FCAFC 26 the Full Court (North and Mansfield JJ) said at [45]:

A relevant factor among the constellation of factors to be considered in determining whether a group constitutes a society in the Yorta Yorta sense is the internal view of the members of the group – the emic view.  The unity among members of the group required by Yorta Yorta means that they must identify as people together who are bound by the one set of laws and customs or normative system.  …

260                                       These cases clearly demonstrate that membership must be based on group acceptance.  That requirement is inherent in the nature of a society.  However the society may accept the views of particular persons as sufficient to establish group acceptance.

261                                       Eunice O’Keefe, Frederick Charles O’Keefe and Henry Aplin demonstrate the process by which a Waanyi person would assess another person’s claim to Waanyi identity.  A Waanyi person will make his or her own enquiries concerning the other person’s descent, country, skins and dreamings.  The matter might also be referred to the older people whose memories will go back further.  The ultimate question is as to descent, the other matters being evidence of such descent.  Although these witnesses spoke of individual enquiries, the decisions mentioned above demonstrate that membership of a society cannot be the product of acceptance by one other member.  Acceptance must be by the community at a more general level.  It is in that sense that one must consider the anthropologists’ evidence that a person may be accepted gradually as more and more people accept his or her claim to Waanyi descent.  In some communities that process will be an informal one, involving gradual acceptance.  However, in some cases, the process may become more formal as has occurred in this case.

262                                       It is of some significance that Professor Trigger does not attribute the ultimate decision to “senior” Waanyi people.  The test is community acceptance.  However such acceptance may be demonstrated by the absence of opposition from senior people.  Mr Blackwood asserts that a claim to Waanyi identity may be validated by its being accepted by one senior person.  This view seems to be based upon his perception that in individual cases, one senior person’s view has apparently been determinative of the question.  However such acceptance does not demonstrate that the person is the ultimate decision-maker.  It may simply reflect an informal willingness to accept the view.  It seems unlikely that any one senior person could resolve such a question on behalf of the group.  The three witnesses (Mr O’Keefe, Ms O’Keefe and Mr Aplin) do not suggest that the question would be referred to one older person, but rather to the older people collectively.

263                                       I accept Professor Trigger’s evidence that acceptance of a claim to Waanyi identity depends upon recognition by other Waanyi people that the relevant candidate is descended from a recognized Waanyi person.  This wording is not precisely in accordance with the wording of the proposed amended description of the claim group which requires that a person be recognized as being a Waanyi person.  That wording would, itself, necessitate a decision as to the meaning of the term “Waanyi person”.  The amendment is intended to define that term.  It can hardly do so by reference to the term itself.  Fairly clearly, the intention is that the person must be recognized as being of Waanyi descent.

264                                       That leaves for determination only the asserted requirement for self-identification and, possibly, assertion.  The proposed amended description requires only self-identification.  As I have inferred that Minnie identified as a Waanyi person and asserted as much, and as many of her descendants so assert, the need to determine whether self-identification is a necessary part of Waanyi identity does not directly arise.  Nonetheless, the question should be resolved prior to any consent determination.  I will seek to explain the position as I see it. 

265                                       Mr Blackwood takes issue with the proposition that assertion and self-identification of Waanyi identity are parts of the qualifying test for such identity.  I doubt whether there is any real distinction between assertion and self-identification.  Professor Trigger concedes that for many people, no overt assertion is necessary because the proposition will have been accepted by those with whom he or she lives and has day-to-day contact.  Assertion and/or self-identification may be relevant where a person must choose between the different affiliations of his or her parents.  That question does not directly concern me for present purposes.  Public assertion may also be necessary where a person has not previously been recognized as Waanyi or asserted such affiliation.   That situation would arise if he or she had been absent from the centres of Waanyi society, perhaps since birth.  The evidence establishes that such a person may re-establish his or her affiliation.  In the case of a person believed to have been born to a Waanyi parent in a Waanyi community, descent would never be in doubt.  For as long as the person did not assert another identity, that situation would continue. 

266                                       I am inclined to the view that a person who has not previously been recognized as being Waanyi must demonstrate that he or she identifies as Waanyi, either by assertion or by virtue of the way in which he or she conducts him- or herself.  Living according to Waanyi laws and customs may be sufficient.  When a person has one Waanyi and one non-Waanyi parent, it may be sufficient that the person has not chosen to abandon Waanyi identity.  When a person is born of two Waanyi parents the question of self-identification may never arise.  Only in this very wide sense, it is necessary to identify oneself as Waanyi or assert such affiliation.

IS MINNIE RECOGNIZED AS A WAANYI PERSON?

267                                       This question is more difficult to answer.  As a matter of fact I have held that Minnie identified as a Waanyi person (believing that she was descended from at least one Waanyi parent) and was accepted by Waanyi people at Burketown and at Lawn Hill as being Waanyi.  However the case really addresses the entitlement of Minnie’s descendants to Waanyi identity.  That question depends upon group acceptance of each of them as being of Waanyi descent which question, in turn, depends primarily upon whether the present Waanyi people accept that Minnie was a Waanyi person.  As the applicant asserts, the claim group must determine that question.  To date they have refused so to recognize her.  I cannot take that decision for them.  Nor can I find that during her lifetime, the Waanyi people, as a whole, accepted her as being Waanyi.  My findings as to such acceptance are limited to the position as it was at Lawn Hill and at Burketown.  It is for the claim group to determine whether that is a sufficient basis for accepting that she was a Waanyi woman, descent from whom is a basis for Waanyi identity.  However I should make a few comments about how the matter might be addressed. 

268                                       In my view the present problem has arisen in a way which makes it difficult to resolve rationally.  At a time when a Native Title determination is imminent, the members of the Minnie family have emerged as possible members of the claim group.  There are many of them.  For reasons of history, mixed descent and geographical dispersal, many Waanyi people do not recognize the family as Waanyi.  There are conflicting views on the subject.  It is no doubt difficult for the claim group to marshal the various views in order to assess their persuasiveness.

269                                       To my mind a meeting of the claim group is unlikely to give the necessary measured consideration to the question in order to arrive at an informed and fair decision.  The politics of the situation are likely to confuse and distort views of the evidence which must be considered in order to make that decision.  I suggest that those advising the members of the claim group encourage them to seek the considered views of a small committee, perhaps made up of those who presently constitute the applicant.  The task would be to examine the evidence in the light of my findings (by which they will be bound) and subject to such legal or other advice as they may deem appropriate.  The committee should be asked to formulate a recommendation for adoption by a subsequent meeting of the claim group.  I suggest that careful consideration be given to the recorded views of Mr Hookey, Mr Seccin and Mr Peterson and the likely bases of those views.  Such views should not be dismissed out of hand merely because they do not comply with preconceived notions concerning the Minnie family.   

270                                       Although resolution of this matter is primarily for the claim group, any decision may not necessarily be beyond review, given its significance under the Native Title Act.  There is, as far as I am aware, no precedent upon which to base a decision as to the availability of judicial relief in the event that persons who, according to traditional laws and customs, are entitled to Native Title rights and interests, are wrongfully excluded from membership of the claim group.  Relief may be available, perhaps by analogy to that available for fraud on the power.  See Ngurli Ltd v McCann (1953) 90 CLR 425 at 438, Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 at [74] and Gambotto v WCP Pty Ltd (1995) 182 CLR 432.  In the latter case, McHugh J identified the fact that the doctrine had been used as the basis for granting relief against oppression of the minority of company shareholders.  See also Alexander v Automatice Telephone Company [1900] 2 Ch 56 at 69 and Menier v Hooper’s Telegraph Work (1873-74) LR 9 Ch App 350 at 353-4.  Statutory relief has long been available for oppression of minority shareholders, thus removing the need for further development of equitable doctrine in that area.

271                                       I will entertain any requests for further findings of fact and submissions as to appropriate orders.

 

I certify that the preceding two hundred and seventy-one (271) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:         18 June 2010