FEDERAL COURT OF AUSTRALIA

Brooks on behalf of the Mamu People v State of Queensland (No 3)

[2013] FCA 741

REASONS FOR JUDGMENT

THE APPLICATION

1    In these proceedings Stephen Brooks, Alfred Joyce, Victor Maund and Dean Purcell seek, on behalf of the Mamu People, a determination as to the existence of Native Title pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”). I shall hereafter refer to those persons collectively as the “applicant”. The original application was filed on 6 April 2001 and was notified pursuant to s 66(3) of the Native Title Act. Pursuant to s 66(10):

A notice under paragraph 3(a) or (d) must also include a statement to the effect that:

(a)    …

(b)    in the case of any native title determination application – as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account that person’s native title rights and interests in relation to the area concerned;

(c)    in any case – a person who wants to be party in relation to the application must notify the Federal Court, in writing, within the period of three months starting on the notification day (as defined in sub-section 8), or, after that period, get the leave of the Federal Court under sub-section 84(5) to become a party.

2    The notification period expired on 27 February 2002. The present respondents are the State of Queensland, the Cairns Regional Council, the Cassowary Coast Regional Council, the Tablelands Regional Council, Ergon Energy Corporation Limited and various people involved in the fishing industry (the “fishing parties”).

THE CLAIM GROUP

3    In an application for a determination that Native Title exists, the applicant must identify the persons who, according to their traditional laws and customs as claimed, hold the common or group rights and interests which comprise the claimed Native Title. Such identification is fundamental to all relevant enquiries. This group of persons is usually described as the “claim group”. Commonly, claim groups are defined by reference to “apical ancestors”. An apical ancestor is a person who is recognized as an ancestor of a family, the members of which are currently recognized as members of the community which proposes to claim native title, and thus are to be members of the claim group. The applicant must then establish that claim group’s claim to the relevant land and waters according to traditional laws and customs.

4    In this case, the original claim group comprised the descendants of 53 named apical ancestors. During 2010 and 2011 Ms Caroline Daniell, an anthropologist, conducted further research as a result of which she recommended that the description of the claim group be amended. On 9 December 2011, the claim group agreed to amend the list of apical ancestors so that it reflected Ms Daniell’s work. Pursuant to the amendment, the claim group was described as:

… the persons who are descendants of the following ancestors:

i.    Bambun;

ii.    Paddy Brooks (Dungginyu);

iii.    Paddy Brooks (Dungginyu) and Maggie;

iv.    Bombetta Wa-Way (aka Bombita, Bumbida, Betsy, Betty);

v.    Charlie Deagon and Kitty;

vi.    Charlie Deagon and Jinny (aka Jenny, Jeanie);

vii.    Emily Purcell/Deagon;

viii.    Nellie Deagan; or

ix.    Polly Watson;

x.    Kitty Christmas;

xi.    Annie Innisfail;

xii.    Polly Armie (Armi);

xiii.    Lizzie Romello;

xiv.    Bella Abasene/Epong/Armie/Drahm;

xv.    William Weare;

xvi.    Sandy Millay Millay.

5    The original list of apical ancestors had included a woman named Annie Musycon. She seems to have been the daughter of Polly Armie (Armi) (“Polly”) who may have been the sister of Bella Abasene/Epong/Armie/Deakin (“Bella”). On Ms Daniell’s recommendation, Annie Musycon’s name was deleted and Polly’s added. On Ms Daniell’s recommendation, Bella’s name was also added.

THE CLAIM AREA

6    The claim area is not large. It is of irregular shape, but probably no wider than about 50 kilometres in a direct line from north to south and east to west. The eastern boundary is the Pacific coast, between Cooper Point in the north and North Maria Creek in the south. The western and southern boundaries are of no present relevance. The northern boundary follows a number of natural and artificial features, together with some metes and bounds.

7    At 3.8 of their 2004 report (Mamu Native Title: Anthropological Report) Weiner & Heijm state:

Mamu country centres on the watersheds of the North and South Johnstone Rivers and their major tributaries such as the Beatrice and Russell Rivers. It extends as far north as Cooper Creek, as far south as North Maria Creek and as far west as Milaa Milaa.

In the north their neighbours are the Lower Coastal Yidinji, in the north-west, the Ngadjon Jii and Jirrbal, and in the south, the Djiru.

The Mamu native title claim area accords with both Tindale’s (1974) and Dixon’s maps of that country (eg, 1976), probably because they both used George Watson as an informant as to the extent of Mamu country.

8    It may not be strictly correct to refer to the Russell River as a tributary of the North and South Johnstone Rivers. However, at some points the Russell and North Johnstone Rivers flow near to each other. The Lower Coastal Yidinji is the group now known as the Wanyurr Majay People.

9    In a draft report dated December 2003 Weiner and Heijm were a little more specific. They said at pp 45-46:

Mamu country centers (sic) on the watersheds of the North and South Johnstone Rivers and their major tributaries such as the Beatrice and Russell Rivers.

In the north, their neighbours are the Lower Coastal Yidinji. The Mamu and Lower Coastal Yidinji agree with the Mamu with respect to boundaries: The Lower Coastal Yidinji go west from Palmer River, south to Eubangee (sic) Swamp and south Mount Bartle-Frere. The Mamu consider Cooper’s Point to be the boundary between themselves and the Lower Coastal Yidinji. The Lower Coastal Yidinji also call themselves the “Russell River Tribe”.

In the north and west, the upper reaches of Dirran Creek is the boundary between the Mamu and the Ngadjon-Jii People and between the Mamu and the Djirrbal People. The Millaa Millaa lookout is considered by Willie Messina to be the Mamu-Djirrbal boundary.

In the south, the boundary between the Mamu and Djiru People is Big Maria Creek. One can see the Moresby Range as it continues right down to the coast at the turn-off from the Bruce Highway to Mission Beach. This range separates Mamu and Djiru Country.

NEGOTIATION AND RESOLUTION OF THE CLAIM

10    As was once common in Native Title cases, for some years after the filing of the present application, little was done to achieve resolution of it. In more recent years, active case management has produced considerable progress in that direction. In practice, applications of the present kind are often resolved by negotiation between the applicant and the State, with other respondents being involved only to the extent of their particular interests. By April 2011 the present applicant and the State were negotiating in the hope of achieving a consent determination. Bella’s status as an apical ancestor arose in the course of those negotiations. The State eventually accepted that she should be included as an apical ancestor. Negotiations continued, and other parties became involved.

SECTION 87A

11    On 25 July 2012 the terms of a proposed consent determination were filed pursuant to an agreement reached between the parties as contemplated by s 87A(1)(b) and 87A(2) of the Native Title Act. As a consequence of that filing, the power conferred upon this Court by s 87A(4) was enlivened. That subsection provides:

The Court may make an order in, or consistent with, the terms of the proposed determination of Native Title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(a)    an order in, or consistent with, the terms of the proposed determination would be within its power; and

(b)    it would be appropriate to do so.

12    Section 87A(1)(c) lists the persons who must be parties to any such agreement. The State is one such party.

13    Section 87A seems to authorize a considerable departure from the usual requirement that the Court should conduct its business in public. However, in practice, the Court generally makes consent determinations at public sittings held in or near to the relevant claim area. As far as I am aware, the Court has not considered the extent to which s 87A dispenses with the usual requirement to which I have referred. Section 17 of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”) provides:

(1)    Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

(2)    The jurisdiction of the Court may be exercised by a Judge sitting in Chambers in:

(a)    a proceeding on an application relating to the conduct of a proceeding;

(b)    a proceeding on an application for orders or directions as to any matter which, by this Act or any other law of the Commonwealth, is made subject to the direction of a Judge sitting in Chambers; and

(c)    a proceeding on any other application authorized by the Rules of Court to be made to a Judge sitting in Chambers.

(3)    A Judge may order a proceeding in Chambers to be adjourned into court.

(4)    The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice.

14    Rule 39.11 of the Federal Court Rules 2011 (the “Rules”) provides:

(1)    A Judge may make an order in accordance with the terms of the written consent of the parties by initialling it or otherwise annotating the consent and placing it in the Court file.

(2)    The Order must state that it is made by consent.

(3)    The Order has the same force and validity as an Order made after a hearing by the Judge.

15    Section 87A of the Native Title Act is clearly “another law of the Commonwealth” for the purposes of s 17 of the Federal Court Act. The combined effect of both sections is that the Court’s jurisdiction under the Native Title Act must generally be exercised in open court, save for any statutory exceptions. Section 87A creates such an exception by providing for a determination without a hearing. However the word “hearing” may bear more than one meaning. In Green v Lord Penzance (1881) 6 App Cas 657 the House of Lords considered a statute which provided that the Archbishop of Canterbury, in connection with his ecclesiastical jurisdiction, could “require the Judge to hear the matter … at any place within the diocese or province, (of the Church), or in London or Westminster”. The question was whether that provision extended to the whole of the proceedings in question, or some part thereof. At 669 Lord Selborne LC said:

It appears to me that the whole determination of the matter of the representation with all its necessary antecedents and proper consequences is intended by and included in that power, … . There are various things to be done by him under the Act before the hearing and preparatory to it; orders as to evidence, orders as to attendance of witnesses, notices, orders for the production of documents. Technically those are not a part of the hearing, but I entertain no doubt whatever that those things and every other thing, preliminary and antecedent to the hearing, are covered by and are included in the authority to “hear,” which I consider means to hear and finally determine “the matter of the representation” which I consider to be equivalent to the cause – the whole matter. Those antecedent things are in my judgment within that authority and the “hearing” within the meaning of these words does not appear to me to terminate till the whole matter is disposed of; therefore it includes not only the necessary antecedents, but also the necessary or proper consequences.

16    At 678 Lord Blackburn said:

Now comes the question, what does “hear” mean? It was disclaimed, and no doubt justly disclaimed, that it was ever intended to argue that it only meant to hear what was said, and that it did not include determining. Unless there be something which by natural intendment, or otherwise, would cut down the meaning and intention of the Legislature and make it less, I apprehend there can be no doubt that the Legislature, when they direct a particular cause to be heard in a particular Court, mean that it is to be heard and finally disposed of there. And further, when they say that it is to be heard ( meaning heard and finally disposed of) in a particular Court, they mean, unless there was something in the context which either by natural interpretation or by necessary implication would cut it down, that in all matters which are not provided for that Court is to follow its ordinary procedure.

17    In Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 407 Hill J considered s 50 of the Federal Court Act, which section has since been repealed. It authorized the Court to make an order, “during or after the hearing of a proceeding”, forbidding or restricting the publication of evidence. Concerning the word “hearing” his Honour said:

The word “hearing” in section 50, in my view, is not limited to the trial of a proceeding. It will include the hearing of any motion or application before a Judge or Registrar from the first directions hearing to the final determination of the application to the Court.

18    The extracts from Green cited above suggest that the word “hearing” may have a broader or narrower meaning. In Patton v Buchanan Borehole Collieries Proprietary Limited (1993) 178 CLR 14 the High Court considered certain provisions of the District Court Act 1973 (NSW). The question was whether the word “tried” meant “heard” or “heard and determined”. At 18 Mason CJ, Deane and Dawson JJ seem to have acknowledged a possible distinction between hearing a matter and determining it, but the decision does not bear upon the present question.

19    It may be that s 87A should be read as authorizing a determination being made in open court, but without a hearing. Alternatively, the section may also authorize the Court to make a determination “on the papers” and not in court. It seems unlikely that Parliament meant to prescribe a process in which the Court was not required to hear evidence or receive submissions, but nonetheless was required to call the parties together in order formally to proclaim the effect of their agreement. In my view the clear intention of s 87A is that the Court be authorized to dispense with any hearing, and to make appropriate orders “on the papers”. However s 87A leaves to the Court the process to be followed after filing of the proposed determination. The discretion conferred by s 87A(4) is wide enough to permit a hearing of some or all of the case, should the Court wish to clarify some aspect of the matter.

20    As I have said the practice of the Court in Native Title consent determinations has been to pronounce such determinations in open court. The practice may reflect a number of factors, including the common law’s long tradition of orality and the associated perception that justice should be administrated in public. Other factors may include the Judge’s possible need for assistance in understanding the terms of a proposed consent determination and/or the extent to which it is supported by the available evidence. Finally, experience has taught us that the actual determination is an occasion of great importance to indigenous people and to the wider community. Thus it is appropriate that the ultimate resolution of each claim occur in public, preferably at a place at which it is practicable for interested parties to attend. However the practice of the Court does not limit the operation of s 87A. I conclude that s 87A authorizes a consent determination being made “on the papers” and without a hearing.

STEPS LEADING TO THE PROPOSED CONSENT DETERMINATION

21    This matter was originally set down for consent determination on 3 September 2012. At a directions hearing on 16 August 2012 Mr Martin Doré, a solicitor employed by the North Queensland Land Council, indicated that there was some concern about the inclusion of Bella as an apical ancestor. He also indicated that another indigenous group, the Wanyurr Majay People, might assert an interest in an area in the north of the claim area (the “disputed area”). Mr Bruce White, an anthropologist, has prepared a map which is attachment 8 to his report. It shows the Mamu claim area “with shading showing the estimated area over which the Wanyurr Majay People may hold native title rights and interests”. As best I can tell, the disputed area is bounded in the north by the boundary of the Mamu claim area, running irregularly from Cooper Point to a point just west of Mt Chalmynia. It then follows a water course, possibly the North Johnston River in a south-easterly, and then westerly direction, south of Belvedere, then in a north-westerly direction passing just south of Daradgee, then north-easterly to a quarry, then southerly to a point south-west of Innisfail and then easterly to the coast.

22    The Wanyurr Majay People are a sub-group of a larger group known as the Yidinji People. The Yidinji People have made successful claims to native title over lands to the north of the Mamu claim area. Amongst those successful claims is the Wanyurr Majay People’s claim over an area to the north of the Mamu claim area, but not adjoining it (the “Wanyurr Majay determination area”). This area is land-locked. Whilst the Wanyurr Majay People speak variations of a distinctive Yidinji language, the Mamu People speak a variation of a language known as Dyirbul. Other Dyirbul speaking peoples are the Girramay, Ngadjon-Jii, Djirrbal and Djuru. I shall use the spelling “Dyirbul” to identify the wider language bloc and the spelling “Djirrbal” to describe one of six “tribes” which make up that bloc. The Court has determined that the Ngadjon-Jii People hold Native Title over lands and waters to the west and south of the Wanyurr Majay determination area. I shall refer to that area as the “Ngadjon-Jii determination area”. Djuru land lies to the south of the Mamu claim area. The Djirrbal People’s land lies to the west of the Mamu claim area.

23    As a result of Mr Doré’s information, I vacated the consent determination date. At a further directions hearing on 19 October 2012 the consent determination was set down for hearing on 25 March 2013, in the expectation that the difficulties identified by Mr Doré would, by then, be resolved. On 6 December 2012 the Court established a timetable leading to a proposed consent determination on that date.

24    On 18 October 2012 the State wrote to the parties concerning Bella’s status and the possibility of a claim by the Wanyurr Majay People. At that time, there was no suggestion that the two questions were related. The State indicated that it had seen no evidence which supported the Wanyurr Majay claim. On 11 January 2013 the applicant provided to the State three further anthropological reports, one by Dr Glass and two by Dr Mayo, seeking the State’s consent to the removal of Bella as an apical ancestor.

25    On 11 February 2013 the State sent two letters to the solicitors for the applicant. One letter referred to the Mayo and Glass reports, indicating that on the basis of those reports, the State had no objection to the removal of Bella as an apical ancestor. On 23 February 2013, the claim group approved such an amendment. The other letter, also dated 11 February 2013, referred to an application in this Court, made on 6 February 2013 by Messrs A Murray and G Ah Kee, seeking that they be joined as respondents to these proceedings for the purpose of protecting the alleged rights of the Wanyurr Majay People over the disputed area. The State indicated that affidavits filed in support of that application suggested that the Wanyurr Majay interests might be affected by a determination in these proceedings, and that it was therefore “in the interests of justice” that Messrs Murray and Ah Kee be joined. The State indicated that it was seeking access to a report by Redmond and McCarthy dated July 2006, in order to review the evidence and compare it with the connection material provided by the applicant. I infer that this report was prepared for the purposes of the Wanyurr Majay claim over the Wanyurr Majay determination area. Although extensive extracts from this report have been quoted in these proceedings, the report itself is not in evidence.

26    On 25 February and 1 March 2013 I heard the application for joinder and dismissed it. I gave reasons for this decision. It is not necessary that I set them out here. In effect I considered that insufficient basis had been demonstrated for allowing joinder at such a late stage, particularly in the absence of any satisfactory explanation of the delay.

27    At the hearing on 1 March 2013 the State indicated that it proposed to seek an adjournment of the consent determination hearing, scheduled for 25 March 2013, in order to consider the Wanyurr Majay claim and/or to conduct further research. On 20 March 2013 the State advised that it was withdrawing its consent to the proposed determination and sought an order vacating the hearing dates. For various reasons it was difficult and possibly inappropriate to hear that application prior to 25 March 2013. I ordered that it be listed for hearing on that date in Innisfail. At the hearing the State maintained that it had withdrawn its consent to the determination in favour of the applicant, submitting that there should be an opportunity for further investigation and consultation with the anthropologists.

28    In the course of argument, it emerged that the State’s primary concern was the possible interest of the Wanyurr Majay People in the disputed area. This concern was based partly upon the Glass and Mayo reports, and partly upon a re-assessment of earlier reports. In the course of argument, the State indicated that the removal of Bella as an apical ancestor seemed to weaken the applicant’s claim to the disputed area. The basis for this assertion was that Bella had a strong association with that area. However Polly, thought by some to have been Bella’s sister, also had a close association with the disputed area. There had previously been no expressed doubt concerning the inclusion of Annie Musycon’s descendants in the claim group, or Annie’s subsequent removal and replacement by Polly. As I have said, Annie was Polly’s daughter. However counsel for the State suggested that Polly’s position might now need reconsideration. In effect the State suggested that if Bella was not Mamu, then she must have been Wanyurr Majay, so that her association with the disputed area supports the latter group’s claim. Part of the problem seems to have been caused by the inclusion of Bella and Annie as apical ancestors in the earlier Wanyurr Majay claim. The State suggested that any doubt about Polly’s status might also favour the Wanyurr Majay claim.

29    In view of the long-standing acceptance of Annie Musycon, and then Polly as an apical ancestor, there is a certain artificiality about this line of reasoning. The original Native Title application identified Annie Musycon as an apical ancestor. In her draft report dated September 2010, Ms Daniell states that the relevant descent line was from Annie’s mother. Weiner and Heijm’s 2004 report at para 3.4 may be the source of this statement. However the original application named Annie as the apical ancestor, not her mother. Ms Daniell appears to have accepted that Polly was Annie’s mother and should, therefore, be included as an apical ancestor in place of Annie herself. It seems that less is known about Polly than about Bella. It is important to note that Annie and her descendants’ Mamu status does not depend upon Polly’s affiliation. Rather, Polly’s status as an apical ancestor depends upon her being Annie’s mother, Annie’s descendents, the Edwards family, being unequivocally accepted as Mamu.

30    The relationship between Bella and Polly is far from settled. Even if the existence of some sort of relationship were confirmed, any doubt about Bella’s Mamu status would not necessarily lead to the conclusion that Annie’s status was doubtful. The possibility that the relationship was other than that of full sisters would significantly undermine such a proposition. It may be that if both Bella’s Mamu status and her relationship to Polly were established, then Polly’s Mamu status might be enhanced. However any failure to establish either matter would not detract from the general acceptance of Annie’s mother’s descendants as Mamu.

31    Further, Bella’s status as Wanyurr Majay is far from settled, notwithstanding her inclusion (with Annie Musycon) in the claim group for the Wanyurr Majay determination. Much of the documentary evidence to which Ms Daniell refers and Bella’s long association with Mamu country and people suggest otherwise. The evidence may favour the conclusion that she was Wanyurr Majay, but there is still a possibility that she was Mamu or Wanyurr Majay/Mamu. Later in these reasons I shall return to Ms Daniell’s work and to the State’s submissions.

SECTION 87A, AGREEMENT TO A PROPOSED DETERMINATION AND ORDERS GIVING EFFECT TO SUCH AGREEMENT

32    There are three aspects to the process contemplated by s 87A. One is agreement amongst the parties. The second is the filing of a signed proposed determination. The third is the making of orders by the Court. There may be a question as to whether the section requires that any relevant “agreement” have contractual effect, or whether a non-contractual arrangement or understanding is sufficient. In the context of litigation, an agreement to compromise almost invariably constitutes a legally binding agreement, involving an exchange of promises supported by consideration. The consideration is generally each party’s promise to concede or forego some of the matters in dispute, thereby conceding or foregoing part of the relief sought. In the present case, the agreement is contained in a document headed “Agreement Under S 87A of the Native Title Act 1993 (Cth)”. It provides as follows:

Each party appearing below consents to orders being made in the following terms:

1a.    The draft Order annexed hereto and marked “A”.

1b.    The National Native Title Tribunal is to notify the Court and the parties of the registration of the Mamu People Land Exchange Indigenous Land Use Agreement within 7 days of registration of same.

1c.    In the event that the Applicant has not withdrawn the application within 21 days of the notice provided for in 1b, the matter is to be re-listed for directions.

33    Whether or not s 87A requires a legally enforceable agreement, it is fairly clear that the agreement in this case was contractual in nature. Thus, in my view, all of the parties continue to be bound by it unless it has been rescinded, declared void or otherwise terminated in accordance with law. Although the State asserts the right to depart from the terms of the agreement by withdrawing its consent to the proposed determination, it points to no legal basis for so doing. It claims that it has now seen evidence which causes it to have doubts about the appropriateness of the proposed determination, but it does not suggest fraud or other actionable misrepresentation. It does not rely upon any other basis for escaping the terms of the agreement, save for the implicit assertion that, as the State, its views are of considerable importance in litigation of this kind. I shall return to that question.

34    Quite apart from any contractual rights and obligations as between the parties, the proposed determination is a document contemplated by the Native Title Act as a possible incident of Native Title litigation in this Court. The effect of filing such a document is that the Court may exercise its discretion to make the proposed determination without hearing evidence or submissions from the parties. Quite apart from any contractual obligations, the filing of a proposed determination is obviously a matter of considerable significance in the conduct of Native Title litigation. The State points to no authoritative basis for the proposition that it can withdraw its consent after filing. It simply asserts that it must be able to do so in the event that it has second thoughts about the appropriateness of its consent, brought about by information of which it subsequently becomes aware.

35    In support of its asserted entitlement to withdraw from the agreement and to withdraw its consent to the proposed determination, the State relies upon statements made by members of this Court in the course of other consent determinations. Not infrequently, Judges have indicated that they were willing to make consent determinations, at least partially because the parties, particularly government parties, had agreed to it. I have generally understood such observations to mean that the Judge in question has assumed that government has performed its duty to its relevant constituency to act in the best interests of that constituency, and that he or she may therefore accept the proposed determination as being appropriate. The various States are generally more closely involved in Native Title cases than are other levels of government. There are three reasons for this. First, the relevant State is generally the source of all non-indigenous title to alienated land and, itself, the holder of substantial areas of land. Secondly, the State generally holds relevant records concerning European settlement and observations made by early settlers concerning indigenous people. Thirdly, it generally holds records concerning alienation of land and other actions which may have extinguished Native Title.

36    The Court, in making a consent determination, may find comfort in the assumption that the State has faithfully discharged its public duty, but it is nonetheless the Court, and only the Court which must be satisfied as to the appropriateness of such an order. The State participates in Native Title litigation as a party. Save to the extent that the Native Title Act provides otherwise, the State has no privileged position before the Court. It is bound by the Court’s ultimate decision. It is also bound by the Court’s orders made in the course of case management and otherwise in the proceedings. Further, the State has duties to both indigenous and non-indigenous citizens. It may not always be easy to take into account and protect the rights and expectations of both groups, or all members of either group. In the end, it is the Court, and not the State, which is responsible for doing justice to all.

37    The State does not act as a gate-keeper in the process prescribed by s 87A or otherwise in connection with any determination as to the existence of Native Title. The State must be a party to any proposed determination, but there is no requirement that it be satisfied as to any particular matter. The State may choose to consent even if it is not satisfied as to matters strictly essential to a proposed determination. Pragmatic considerations frequently govern decisions made in the conduct of litigation. Sometimes, a party may see benefit in not insisting upon strict compliance with the law or a stringent approach to the facts. The parties (including the State) must make their own decisions as to such matters, but they must do so in any time-frame imposed by the Court.

38    It is not unusual for parties to find themselves in positions similar to that in which the State finds itself in this case. Where a party wishes to withdraw a formal admission, it must generally seek the Court’s leave to do so. Where a party wishes to vary or resile from a consent order, it must obtain leave. These situations are very similar to the present case. The decision of the High Court in Harvey v Phillips (1956) 95 CLR 235 provides another example of a similar situation. That case involved a claim for damages for personal injuries against a medical practitioner. At the trial counsel for the plaintiff eventually obtained instructions to settle, although the plaintiff had apparently been very unwilling. The terms of consent were signed, and the Judge adjourned the Court. Thereafter, the plaintiff asserted that she had not given her consent to the settlement and applied to the Full Court of the Supreme Court of New South Wales to set aside the judgment. Judgment had not, at that time, been signed or entered. The Full Court dismissed the motion. The High Court acted upon the finding of the Supreme Court that the plaintiff was bound by the settlement pursuant to the instructions which she had eventually given to her counsel, who had acted with her authority. At 242-243 the Court (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ) said:

The learned Judge authorized the entry of judgment in accordance with the terms of the settlement drawn up. Judgment has not in fact been signed or entered, so we were informed. Had judgment been signed it may be doubted whether it was open to the plaintiff to attack it by making an application to the Full Court in the action to set aside the judgment and compromise. No objection was made on this score. But the difficulty which confronts the plaintiff is that her counsel when he signed the terms of settlement acted in accordance with the authority which she gave in the manner described by Mr Beard. If the question whether the compromise should be set aside was a matter depending upon the discretion of the court, the course of events which led her, after she left the judge’s chambers, at length to give way and express a consent might be very material. But in the circumstances of this case it does not appear to us that the Court possesses a discretion to set aside the compromise or to intercept the formal entry of judgment. It is not a case of misapprehension or mistake made by counsel and consenting to an order or settlement … . It is not a case where the assistance of the Court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In such a case the assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract. It is not a case where a compromise has been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client’s instructions or an excess of some limitation that has been expressly placed on his authority. In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the court to refuse to give effect to or act upon the compromise and perhaps to set it aside … .

39    The present case is an example of one of the exceptions identified by the High Court. The parties’ compromise cannot be enforced without the assistance of the Court in that the Court must decide to exercise its discretion to make the proposed determination. Harvey v Phillips establishes that in such a case the Court may refuse to give effect to the compromise on grounds “not necessarily sufficient to invalidate a simple contract”. Clearly, the matter is within the Court’s discretion.

40    In signing the proposed determination and allowing it to be filed, the State effectively admitted the applicant’s claim to the extent to which it was reflected in that determination. No doubt the State exercised great care in so doing. It must have considered whether there was sufficient evidence to justify the decision, whether further investigation should be undertaken and whether, on the available evidence, it was appropriate that it consent. Such matters are regularly assessed by parties to litigation in considering whether to settle a case or proceed to trial. Once agreement is reached, there can generally be no turning back.

41    Courts frequently fix time-frames within which parties to proceedings must make decisions about their conduct of the case. Such decisions are generally binding, unless the court otherwise orders. That process is an essential element of case management. On some occasions the need to make a decision within a time frame imposed by a court will result in the decision being made on incomplete information. In some cases full information may never be available. However all cases must proceed to ultimate resolution within acceptable time-frames. In consenting to the proposed determination the State committed itself contractually to the other parties, particularly to the applicant. By permitting it to be filed, it committed itself to the Court. These commitments were unconditional, at least once the proposed determination had been filed. Section 87A does not contemplate departure from any relevant agreement or consent to a proposed determination. Once the proposed determination has been signed, any party may file it, setting in train the process pursuant to which the determination will be made. Were the State able to walk away from such an agreement then presumably, any other party might also do so. If such conduct were permissible then the process contemplated by s 87A would be easily derailed.

42    There is another aspect which I should mention. As I have said, on 1 March this year I denied an application by Messrs Murray and Ah Kee to be joined as respondents. Their purpose was to oppose the making of a determination in favour of the Mamu People, to the extent that it might be inconsistent with rights and interests allegedly held by the Wanyurr Majay People. I rejected that application on well-settled principles. In seeking to defer the consent determination, the State seeks to achieve the same result as would probably have flowed from the joinder of Messrs Murray and Ah Kee as respondents: disruption of an agreement, freely made by the parties who have been engaged in these proceedings for many years, thus depriving the Mamu People and other parties of the expected benefit of such engagement. Messrs Murray and Ah Kee, and/or the Wanyurr Majay People could have taken appropriate action to assert their claims at any time after the filing of the Mamu application. There is no suggestion that they were unaware of it. It is inconceivable that the Wanyurr Majay People, or their leaders, would not have been aware that their southern neighbours, the Mamu People, had filed an application. If they did not enquire as to its boundaries, it was their own fault.

43    Even now, the Wanyurr Majay People could, by lodging a properly prepared and authorized application, compel consideration of their claim. See s 67 of the Native Title Act. It has not been suggested that such an application is being prepared, has been authorized or is imminent. The Wanyurr Majay People have the experience inevitably acquired in connection with one consent determination. They know what is involved and what is at risk.

44    Counsel for the Mamu People submit that the conditions precedent to my making the proposed determination pursuant to s 87A have been satisfied, subject only to my forming a view as to whether it is appropriate to make that determination. They submit that the State cannot, in any effective way, withdraw its consent to the proposed determination, although they concede that the State may seek to explain why it now considers it inappropriate that the proposed determination be made.

45    I should point out that the proposed determination as originally filed has been amended in some respects, so that the orders now sought may not be precisely as originally agreed. The parties have not addressed the question of whether the presently proposed orders are “in, or consistent with” the terms of the originally proposed determination. However the State generally takes no point with respect to such amendments. No doubt it has agreed to them. The State’s concern is based upon its consideration of the new reports and its reconsideration of material which it had previously considered. The reports are “new” only in the sense that to some extent, they refer to relatively recent interviews with persons who might have relevant knowledge and opinions as to relevant inferences which might be drawn from that and other available material. The removal of Bella as an apical ancestor or, more accurately, the circumstances which have caused such removal is also relevant to the State’s concern. I shall deal with that matter separately.

46    I do not understand the State to have made an application for leave to withdraw its agreement to the proposed consent determination. It has rather asserted a right to do so and otherwise submitted that I should not exercise the discretion conferred on me by s 87A(4). In any event, the considerations which would arise in considering any such application for leave would be similar to those arising in considering whether, in all the circumstances, it is appropriate to make an order in terms of the proposed consent determination. I turn to that question. Perhaps unfortunately, this matter cannot be resolved without detailed reference to at least some of the voluminous anthropological material. I shall, as far as possible, limit my consideration to that material which concerns the question of Bella’s affiliation, Polly’s affiliation and the competing claims to the disputed area.

47    In the evidence, there are many variations in the spelling of place names and other words, no doubt reflecting various attempts to represent in writing, words which otherwise only exist orally. With the exception of the Dyirbul-Djirrbal distinction to which I have previously referred, I shall not attempt to standardize spelling. Rather, I shall adopt the spelling used in any document to which I am currently referring.

THE CLAIM GROUP

48    In their report of October 2004, Weiner and Heijm say at 3.4:

As we stated in the Introduction, Mamu is one of six contiguous named languages – Girramay, Djirrbal, Gulnay, Djiru, Mamu and Ngadjon-Jii – that comprise a regional language group called “Dyirbal” by Dixon. Territorially, the Dyirbul languages extend from approximately Cardwell to approximately Herberton and includes most of the drainage basins of the Russell, Johnstone, Tully, Murray and Upper Herbert Rivers. Mamu is the language primarily associated with the North and South Johnstone River countries … .

Affiliation with Mamu and its territory distinguishes the claimant group from neighbouring tribal groups. Mamu People recognise that the use of “tribe” refers to a common ownership of Mamu language, but also to their mutual acknowledgement of traditional ownership rights in the country with which Mamu is affiliated. This corresponds with classic usage of the name Mamu. It is clear that people spoke more than one language and that within each language represented as distinct, dialects were also recognised. In line with the general Aboriginal culture of opposition-making described above, Dyirbal peoples’ tribal identity was not based solely on language use, but on the deliberate identification with one language and/or dialect as their own in opposition to all other locally identified languages and ways of speaking.

49    It is important to note that the basin of the Russell River is said to be within the area associated with the Djirbal language.

50    At 2.2 and 3.9, Weiner and Heijm point out that use of the suffix “barra” (or “bara”) in Queensland indigenous languages has a particular significance. The suffix is generally found in conjunction with a word describing a particular geographical feature. The combined word then identifies a particular area associated with that feature. One “barra” word in the Mamu language is Dulgubarra, which is the name of the Jordan Creek area. The word “dulgu” means “thick scrubby country”. Waribarra denotes country along the North Johnstone River, “wari” being the word for “gorge”. Such words may also be used to describe people who identify with, or are identified with a particular area. Thus such a term denotes both an area and a group of people. Five such groups comprise the Mamu “People”. They are Waribarra, Dulgubarra, Bagirbarra, Wabubarra (or Mandubarra) and Dyirribarra. They identify with the following respective areas:

Waribarra: gorge country of the North Johnston River north of the Palmerston Highway (which follows traditional paths for much of its length) and the North Johnstone River country west to about Millaa Millaa;

Dulgubarra: the thick scrub country in the area around Jordan Creek, south of the Palmerston Highway and north of the South Johnstone River;

Bagirbarra: the country between the North Johnstone and Russell Rivers;

Wabubarra (or Mandubarra): the area around Silkwood and Japoonvale, between Liverpool Creek and the South Johnstone River in the north, Downey Creek in the west and North Maria Creek in the south;

Dyirribarra: the area from Innisfail and the Johnstone River in the north to Liverpool Creek in the south.

51    As I understand it, the disputed area is primarily the area described as Bagirbarra. Weiner and Heijm reported that no Mamu family group was currently specifically affiliated with Bagirbarra. However in Daniell’s 2010 draft report she identifies two families who are so associated, the Edwards family and the McCarthy family. The Edwards family claims descent from Polly Armie, one of the apical ancestors. The McCarthy family previously claimed Mamu descent through Nellie Cavoo. However, on Ms Daniell’s recommendation, they now claim such descent through Bella Abasene, who was previously added as an apical ancestor, but has subsequently been removed. Thus the Edwards family is presently included in the claim group, but the McCarthy family is not. The McCarthy family continues to assert that it is Mamu by virtue of its descent from Bella. However it may also continue to claim such descent through Nellie Cavoo. Neither basis has been accepted by the Mamu claim group. I shall return to this matter. It seems that the McCarthy family has, for many years, been closely associated with the Mamu People, particularly the Edwards family.

52    According to Weiner and Heijm the families associated with the other “barras” are:

Waribarra: the Brooks family and the Maund family;

Dulgubarra: the Watson, Major and Russell families and ancestors of Robert Major;

Wabubarra (or Mandubarra): The Epong family, including William Tinkum; and

Dyirribarra: the Edwards family.

BOUNDARIES OF THE CLAIM AREA

53    Weiner and Heijm seem to assume, rather than seek to prove that the Mamu People are traditional owners of the claim area as described in the application. Their reports are very informative and helpful in other ways, but this assumption seems, at first blush to be surprising. Further, the claims made by Messrs Murray and Ah Kee challenge it. However the basis for the assumption appears at para 3.7 of the 2004 report as follows:

The native title boundary demarcated in the Mamu People native title determination application …. represents the point that had been reached in a consensual decision-making process at the time the application was made. The process has been a long-term one: Mamu People have been consulting with their neighbours about the boundary for a native title claim for several years. On 30 March 2001, a workshop was held at Innisfail that was intended to be the first stage of formalising a demarcation of boundaries with contiguous tribal groups. The workshop was attended by elders of the Mamu and those of the adjacent Djabugay, Ngadjon-Jii, Jirrbal, and Djiru peoples. The workshop was organised in Aboriginal Law in anticipation of respective native title determination applications of the participants. At that time, boundaries were drawn upon a map that was signed by the workshop participants. The boundaries became those of the claim area specified in the Mamu People native title determination application. They were the best indication of agreement available at the time and for the most part followed the agreements that Mamu People had already made with the other groups.

The workshop was held as a provisional “without prejudice” sounding out of where boundaries ought to be drawn. This was explicitly stated at the workshop. The participants expected that any boundaries drawn would be referred back to larger meetings of participating tribal groups before they could be ratified. It was anticipated that some boundaries would need to be re-drawn. These issues aside, a comparison of the Mamu claim boundaries with the delineation of Mamu country in anthropological research demonstrates a substantial congruence about the extent of Mamu country.

54    See also the report at para 4.3. Accepting that any arrangement or understanding reached at the March 2001 meeting was provisional, I nonetheless infer that those attending were equipped to reach a considered, if provisional view as to traditional boundaries. In particular, I infer that those attending had knowledge of the subject matter, and that they represented most, if not all interested parties. There is no reference to attendance by the Wanyurr Majay People. As appears from Dr Pannell’s report, they were then known as the Lower Coastal Yidinji. At 3.1 of her report she suggests that at p 8 of a 2002 report which is not in evidence, Heijm referred to the 2001 meeting as being between the Mamu claimants and neighbouring Aboriginal groups, including Ngatjan, Yidinydji and Djirbal people. Weiner and Heijm refer to those attending as being Mamu, Djabugay, Ngadjon-Jii, Djrirbal and Djiru people. The Ngadjon-Jii are, as I understand it, Dyirbal speakers. The Djabugay are apparently Yidinydji. See the report dated 19 February 2013 by Bruce White at para 6.

55    Notwithstanding that uncertainty, and the provisional nature of the arrangement or understanding, it is reasonable to infer that the boundaries of the Mamu People’s claim generally reflect the Mamu case as put at that meeting, apparently without significant opposition. In those circumstances it is understandable that Weiner and Heijm treated the boundaries as settled, particularly as the Wanyurr Majay had made no claim.

FIRST EUROPEAN CONTACT AND THEREAFTER

56    As is well known, in 1770 Cook sailed from Botany Bay, north up the eastern coast of Australia. However he seems not to have made any relevant record concerning this part of the coast. Weiner states, in a supplementary report dated February 2007, that in 1848, the vessel Rattlesnake sailed up the coast, passing close to the mouth of Maria Creek. A party went up the creek, meeting about 20 indigenous people. They saw huts near the mouth of the creek. The huts were roofed with tea tree bark. In 1872, the Brig Maria was lost off the coast of the claim area, with some survivors making land. A few of them landed at Cooper Point and were looked after by Aboriginal people. Dr Weiner describes those people as Mamu. The survivors eventually reached the Johnstone River and were rescued by HMS Basilisk. There appears to have been no suggestion that they crossed tribal boundaries in their travels. Other survivors were killed by indigenous people, again said to have been Mamu. As a result there was significant retribution against them. Such retribution has become part of Mamu folk lore. It occurred on Banana Island at the mouth of the Johnstone River, east of Innisfail, but south of the river. Banana Island is a site of significance to the Mamu.

57    In 1873 Dalrymple explored the Johnstone River area, naming numerous features, including Seymour Range, Flying Fish Point, Gladys Inlet and Coquette Point. Dalrymple and Henry Nind, a member of his party, saw a large number of indigenous people “on both banks” of the Johnstone River and a “bora ground, trodden hard and smooth by successive generations of native men”. There were many rafts made of light logs or banana stems, lashed together with lawyer vine. Between 1882 and 1884 Palmerston visited the North and South Johnstone Rivers and the Russell River, effectively opening a route from Innisfail to Herberton, relying upon an existing track system. He recorded various areas of habitation and bora grounds, some apparently having recognizably Mamu names. Because of his violence towards them, Palmerston is also recalled unfavourably in Mamu folk lore. Again, there seems to have been no reason to believe that the North Johnstone River was a boundary between different groups.

58    In 1889 Archibald Meston reported on his scientific expedition to the Bellenden-Ker Range area. He subsequently compiled lists of the dialects of the Russell, Mulgrave and Johnstone River areas. According to a subsequent linguistic researcher, RMW Dixon, the words associated with the Russell and Johnstone Rivers were “entirely Dyirbul”, in contrast to the list of words derived from the Mulgrave River, of which some were Dyirbul and some, Yidinji. This finding seems to suggest that at the time of Meston’s expedition, the area around the Johnstone and Russell Rivers was peopled by Dyirbul-speakers, and that the influence of that language extended to the Mulgrave River. It may follow that any “shared” area (between Dyirbul- and Yidinji-speakers) was north of the Russell River. Dr Pannell suggests that the first description of indigenous people as Mamu was by the Reverend JB Gribble who established the Yarrabah Anglican Mission. In a diary entry dated 1891, he referred to the “Russell Tribe” as “Mam-oo”. Thus, at that time, the Dyirbul language was the language of the Russell River, and the Dyirbul-speaking Mamu People were associated with that river.

TINDALE

59    In 1938 Norman Tindale, Joseph Birdsell and their wives undertook anthropological field work at various missions and government settlements in Queensland, including Gribble’s Anglican Mission at Yarrabah, Mona Mona and Palm Island. They interviewed a number of Mamu-identifying persons and recorded genealogical and socio-cultural information about them. Two persons who identified as Mamu claimed affiliation to the Russell River area. See Dr Pannell’s report at para 75. Another person who was interviewed, Mick Tiger, claimed to be from Innisfail but associated with the Wanjuru tribe, presumably a group through which the present Wanyurr Majay People claim. In his journal Tindale located the Wanjuru tribe on the banks of the Russell River, from the mouth to Babinda, well north of the present claim area. (See Pannell at paras 75-76.) Over the course of many years Tindale conducted further research into the various tribes. In a 1940 publication he identified the Mamu as:

Loc: Johnstone River; at Innisfail; inland to Neradah and Coast Range; south to Murdering Point (rain forest dwellers) … .

60    He produced various maps in the course of his research. Many of them appear in the reports prepared for this case, particularly in Dr Pannell’s report. In a map dated 1938, he showed the Mamu tribe as occupying an area almost as far north as Babinda, well past the present northern boundary of the claim area. According to Dr Pannell, in a 1940 map Tindale showed the Mamu territory in much the same area. I have some difficulty in reading that map as reproduced in Dr Pannell’s report. Both maps show the Wanjuru tribe to the north of the Mamu area. In a third, undated map (which Dr Pannell dates at 1938-1939) the northern Mamu boundary is shown at the southern end of Bramston Beach, north of the northern boundary of the Mamu claim area. Again the Wanjuru People are shown as being located further north. In 1941 Tindale and Birdsell published an article in which the Mamu were said to occupy the area “from the coast at Russell River south to Murdering Point”. Murdering Point is in the south of the present claim area. The “coast at Russell River” may describe the mouth of the Russell River which is to the north of Bramston Breach. Alternatively, it may describe a point on the coast at about the same latitude as that part of the Russell River which flows from west to east.

61    In Dr Pannell’s words, in 1963 Tindale “discovered” the Mandjandji tribe. I infer that the Wanyurr Majay People also claim through the Mandjandji. On Palm Island Tindale interviewed a man called Nelson. He was born near Alooma which is north of the Wanyurr Majay determination area. He said that Yidinydji speakers occupied the coast near Alooma and down “the river”. Dr Pannell understands this to be a reference to the Mulgrave River. Nelson identified the Mamu as being at Innisfail and the Madjandji, at Babinda.

62    At Palm Island, Tindale also interviewed George Watson, a Mamu “antecedent”. He was an important informant for both Tindale and Dixon, but his information seems to be largely irrelevant for present purposes. He identified four “hordes” in the Mamu tribe. They were the Tulkubara (or Dungubara) at Jordan Creek, the Mandubara on the South Johnstone River, the Djiribara near Mourilyan and the Wardibara in the dense rain forests along the North Johnstone River and in the gorges of the main range.

63    According to Dr Pannell, in 1972 Tindale prepared a working draft which was the basis for his 1974 map. The draft shows the northern coastal boundary of the Mamu claim area as being just north of Innisfail, with the Wanjuru to the north and the Mandgandji further north again. The map in Tindale’s 1974 publication is a very small scale, but probably reflects the 1972 draft. However, in the text of his 1974 work, Tindale described the Mamu areas as follows:

Loc: on the Johnstone River; at Innisfail, inland to Nerada and on the Coast Range to Tolga; south to Murdering Point; Rain forest dwellers … There are five or more hordes; Mandubara, Tulkubara, (Dulgabara), Bagirgabara, Waribara (Wardibara), and Djiribara. The Waribara were reputed to be of smaller stature than the others and to live in the dense forests along the Johnstone River and in the gorges of the main range ... They were claimed by my informant to speak the language heavily, “like the Idinji”. … The Djiribara were near Mourilyan; the Tulkubura (Dulgabara) at Jordan Creek were the purest speakers. The Mandubara were on the South Johnstone River … .

64    In that work he described the Wanjuru area as:

Wanjuru

Loc: South of the mouth of Russell River; inland toward Babinda; south to Cooper Point and Innisfail; rain forest dwellers;

65    He described the Madjandji area as follows:

Loc: North of mouth of Russell River and inland at Babinda; north toward Deeral. A small rain forest dwelling group speaking Matjai, a speech related to Kongkandji. They are close to the Wanjuru who live farther south toward Innisfail. One Indindji informant in 1963 said they were “the same” as Ngatjan, implying they were closely related to people of that tribe. This is perhaps the Mooka tribe of Parry-Okeden.

66    Although Tindale identified the Bagirbarra as a Mamu “horde”, he did not otherwise discuss or locate them. However there seems to be little doubt that they are, and were part of the Mamu People. The only likely area for them seems to be the disputed area. It may be that the rather Delphic reference to the Wanjuru country as stretching south to Cooper Point and Innisfail reflects uncertainty as to the southern boundary, particularly in view of the location of the Mamu “on the Johnstone River” and “at Innisfail”. As Dr Pannell suggests the 1974 map may not accurately reflect Tindale’s description in the text of the Mamu and Wanjuru countries. In a 1972 map, Dixon, to whom I have previously referred, located the Bagirbarra to the north of the North Johnstone River and along the coast, possibly as far north as the mouth of the Russell River. I shall return to Dixon’s maps. However, as far as I can see, the only location ever suggested for the Bagirbarra is in the north-east of the present claim area although, of course, Dixon’s 1972 map suggests a much wider area extending further to the north and west. It is curious that these two researchers, who collaborated to some extent, should have produced such different research results at much the same time. A further difficulty in Tindale’s work is that Tolga is well inland, but north of Babinda, suggesting that neither the North Johnstone River nor the Russell River was the northern boundary of Mamu country.

67    No explanation has been offered for Tindale’s relocations of the northern Mamu boundary between 1938 and 1974. No doubt he had done more research. No doubt, too, there had been population movements over that time. Tindale may have been seeking to identify traditional boundaries, but the passage of time cannot have made that task easier. Further, one cannot overlook the association between the Mamu and Russell River which was recognized by Gribble and reflected in Meston’s word lists and Palmerston’s place names. Further, Tindale’s reference to Cooper Point in describing the Wanyurr’s southern boundary suggests that it had some significance in that context.

DIXON

68    As I have said, Dixon and Tindale collaborated, at least to the extent of sharing sources of information. However Dixon’s work is based upon language and, in particular, the Dyirbul language. He has produced a number of maps showing language distribution in the claim area and surrounding regions. Many do not show boundaries. In a 1966 map Dixon shows the Mamu language area as lying to the west of Innisfail, but apparently including the coast. The Wanyurr language area is to the north, possibly at, or north of Cooper Point. In a 1970 map he shows the Mamu language area in the same location and the “Madyay” language area north of Cooper Point. No Wanyurr language area is shown.

69    In the 1972 map, to which I have already referred, Dixon locates the five “barra” dialect areas of the Mamu language area. He shows the Bagirbarra as occupying an area to the north of the North Johnstone River and, arguably, stretching as far north as the mouth of the Russell River. Again, the Wanyurr language area is not shown. The Madyay area appears to be located north of the mouth of the Russell River, but may extend further south. However in two maps dated 1976, Dixon shows the northern boundary of the Mamu language areas as being just north of Innisfail, with the Wanyurr language area to its north. In a map dated 1977, the boundary between the Wanyurr language area and the Mamu language area seems to have moved north towards Cooper Point. In a 1984 map Dixon shows the boundary between Yidinji-speaking and Dyirbul-speaking areas as being just north of Heath Point. In a 1990 map the boundary has moved further north, towards Cooper Point. In a 1991 map the boundary between the Dyirbul language areas and the Yidinji language area passes just south of Babinda and well north of Cooper Point. As there is no claim to this area by any other Dyirbul-speaking group, the boundary line would seem to represent the boundary between Wanyurr and Mamu. However, in a 1996 map by Dixon and Koch, the relevant boundary is again located just north of Innisfail.

70    These maps are in small scale and are unlikely to be precisely accurate. No explanation has been provided for the repeated revision of boundaries. To some extent, the changes probably reflect Dixon’s findings at different points in time. It is possible that the shifting language areas reflect margins of error and/or shifting population.

THE MAMU TUMRA REGION

71    There is a document which suggests that at least some of the Wanyurr Majay People accept the claimed northern boundary of the Mamu claim area. It is a map showing the coastline of the claim area and areas north and south of it. At or about Cooper Point, a straight red line has been drawn out into the ocean. A similar line appears at or near the mouth of North Maria Creek. The area of ocean bounded by those lines, the coastline and another straight line running from north-north-east to south-south-west, and about 70 kms from the coast, is said to be the “Mamu TUMRA region”. The document is marked as a “draft” but has been signed or initialled by a number of people including Mr Murray who, with Mr Ah Kee, sought to be joined in these proceedings. It is dated 25 February 2008. The document seems to acknowledge a maritime area of interest to the Mamu People.

72    A number of Wanyurr Majay people, including Mr Murray have sworn that the map was not intended to acknowledge the land boundaries of the Mamu claim area. They say that it relates only to the maritime area and reflects some unspecified arrangement for the sharing of marine resources. These explanations are, in themselves, quite unconvincing. It is difficult to accept that, by a co-incidence, the parties agreed that the northern and southern boundaries of this maritime area should co-incide with the points at which the northern and southern boundaries of the Mamu claim area meet the coast. The Mamu claim area boundaries have been known since 2001 and were apparently agreed provisionally at the March 2001 meeting. A more likely, indeed almost irresistible inference is that the sea boundaries drawn in 2008 reflect the agreed land boundaries.

NATURAL BOUNDARIES

73    Dr Pannell, at pp 23-26 of her report, suggests that Tindale considered that there was a high degree of correlation between ecological and geographical boundaries and tribal boundaries. Dr Pannell seems gently to chide Tindale for not giving sufficient emphasis to “cultural, social and linguistic values”. She also points out that although Dixon’s focus was on linguistics, he also had regard to physical boundaries. In the case of Dixon, expressly, and in the case of Tindale, by implication, Dr Parnell suggests that the boundaries on their maps should be treated as being approximate rather than definitive. This suggestion is undoubtedly correct. Nonetheless, it seems to me that human beings have, throughout our existence, used natural features as boundaries between areas of particular interest to different groups. The border between New South Wales and Victoria is an example of this, as is the coastal boundary between Queensland and New South Wales. In earlier times, rivers or mountain ranges posed more serious obstacles to movement than they now do. As is demonstrated by some of the evidence in this case, groups may evolve to meet special aspects of their environment and thereafter, find such environment to be congenial to their evolved physical characteristics, social values and developed skills. Natural features such as rivers and the coastline may also provide valuable resources.

74    In the present case, there are both physical and cultural boundaries. Culturally, the major distinction is that of language. In the area under consideration, the Yidinji-speaking and Dyirbul-speaking People meet. The evidence suggests that the Yidindji were fearful of the Dyirbul, the latter being more war-like and aggressive than the former. Keeping in mind this fear, it is perhaps significant that the Wanyurr Majay determination area is bordered in the west and south by the Dyirbul-speaking Ngadjon-Jii People’s determination area which, in turn, abuts the north of the Mamu claim area, in some places in the vicinity of the Russell River. In other words, the Wanyurr Majay People were hemmed in by the more aggressive Dyirbul-speakers on two sides. The Wanyurr Majay now assert that their traditional coastal country extended further south than did the inland area, allegedly extending at least to the North Johnstone River. Yet it is clear that Gribble considered that the Mamu had been associated with the Russell River since before 1891. Further, Meston had compiled word lists from the Russell and Johnstone Rivers which were “entirely Dyirbul”, and a word list for the Mulgrave River, much further north, which contained both Dyirbul and Yidinji words. Dr Mayo noted that the Mamu had names for the Johnstone River, Flying Fish Point, Cooper Point and other sites. I have already referred to the two Mamu-identifying persons encountered by Tindale on Palm Island in 1938, who claimed to be of the Russell River tribe, a similar expression to that used by Gribble in 1891. It seems to follow that prior to first European contact, the Mamu were located on the Russell River and further south.

75    The Wanyurr Majay’s attempt to claim country as far south as the North Johnstone River is inconsistent with the early view that the Mamu were located on that river and the Russell River. There is no suggestion in the historical documents or the works of Tindale and Dixon that they were only on the southern bank of the North Johnstone River. Once it is accepted that the Mamu were located on the north bank of the North Johnstone River, a question arises as to where any boundary with the Yidinji or Wanyurr Majay may have been. Likely natural boundaries might be obstacles to north-south movement. The Russell River, the Eubenangee Swamp and the Seymour Range, running down to Cooper Point are likely examples.

DR POWELL’S REPORT

76    In a report prepared by anthropologist Fiona Powell and dated May 2003, the lower coastal Yidinji People (now the Wanyurr Majay) were recorded as describing their country as:

… going from Palmer Point southwards to at least Cooper Point. Eastwards, their country includes the Frankland island … . The northern limit of the country is described as going from Palmer Point, through Aloomba, to the southern flanks of the Pyramid, a sacred site they share with other groups … .

77    The words “at least” suggest reduced confidence in any claim to lands lying south of Cooper Point.

VIEWS OF THE WANYURR MAJAY PEOPLE IN 2006

78    Amongst the Wanyurr Majay People, opinions concerning their boundary with the Mamu are divided. Dr Pannell points out that in their 2006 report, Redmond and McCarthy describe the area over which the Wanyurr Majay then asserted a range of rights and interests as follows:

An area situated from between the North Johnstone River in the vicinity of Upper Daradgee (and in some accounts from Eubanangee Swamp) in the south, eastwards towards Cooper Point, north along the coast through Bramston Beach, then north to Palmer Point (and in the view of some lower coastal Yidinji people further north again to Badabadu sic, Oombunghi and Wunggu) (Deception Point), this being an area of shared interests with Mandingalbay Yidinji and Gunganyji people), including the Frankland and High islands and associated reef areas, then westwards to the saddle-back between Bell Peak North and South, west towards Walsh’s Pyramid, south-west to Mount Massey, south to Mount Bellenden Ker, then continuing to Bartle-Frere South Peak and past Josephine Falls and Golden Hole to the point known as Broken Nose then east to the initial point on the North Johnstone River (or Eubanangee Swamp) [sic] … .

79    This description poses problems. The starting point is either a point in the vicinity of Upper Daradgee or the Eubenangee Swamp. Upper Daradgee is to the west of Belvedere which is, itself, west of Innisfail. Eubenangee Swamp is about ten kilometres further north. Cooper Point is east-north-east of Eubenangee Swamp but unquestionably north-east of Upper Daradgee. In either case, the coast south of Cooper Point, including Innisfail and the lower reaches of the North Johnstone River would be excluded from Wanyurr Majay country. Similarly, as I understand the location of Broken Nose (to the west of Josephine Falls and in the Ngadjon-Jii determination area) Eubenangee Swamp is east of it, but Upper Daradgee is unquestionably to the south-east. If Eubenangee Swamp is taken as the start and finish point of the description, then there is no overlap between the boundaries of the Mamu claim area and Wanyurr Majay country. Indeed, there would be a distinct buffer region between the two areas. In that case many sites which are claimed by both Mamu and Wanyurr Majay (eg Daradgee, Eubenangee and Garradunga) would not be in Wanyurr Majay country. Even if the start point is Upper Daradgee, it is not clear that a boundary running north-west to Cooper Point would pass south-east of Daradgee, thus including it in Wanyurr Majay land, or north-west of Daradgee, excluding it from such land.

DR PANNELL’S 1997 RESEARCH

80    During 1997, in connection with the Ngadjon-Jii Native Title application, Dr Pannell interviewed senior members of neighbouring groups. At p 15 of her report, Dr Pannell provides a list of persons to whom she spoke, and their comments concerning the boundaries between the various areas of interest. A group of Mamu women said that that the Russell River divided Mamu and Ngadjon-Jii land. A Mamu man said that “rivers are the boundaries”. Although he did not refer specifically to the Russell River, he said that the Eubenangee Swamp belonged to a “different tribe”. That comment suggests that the Eubenangee Swamp is close to the boundary and therefore deserving of particular mention. A Ngadjon-Jii man said that Mamu country “went up to Waugh’s Pocket”. I understand Waugh’s Pocket to be on the northern boundary of the claim area at the point at which it passes to the south of the Eubenangee Swamp National Park. Annie Wonga, a Yidinji/Madjanydji (ie Wanyurr Majay) woman said that the Madjanydji area included Eubenangee Swamp up to Bramston Beach, following the foothills of the Great Dividing Range, and around to the north of the swamp, included the Lower Russell River, Babinda and Babinda Boulders. It is difficult to understand how the Eubenangee Swamp could be included in Madjanydji land if the boundary actually passes to the north of it. Further, it is not clear whether the line from Eubenangee Swamp to Deeral is the eastern or western boundary of the area in question. Deeral is due west of the mouth of the Russell River. It is not clear whether Annie Wonga meant to imply that the boundary which she described was the boundary between Wanyurr Majay and Mamu or Madjandji and Wanyurr.

DR PANNELL’S 2011 RESEARCH

81    During 2011 Dr Pannell interviewed a number of Wanyurr Majay People. Some asserted that their traditional land extended to the North Johnstone River. For example, Robert Murray asserted that it extended south to Cooper Point, and further south again to the North Johnstone River. This “two-stage” approach is a little difficult to understand. One would expect the southern limit to be at one place or the other. This description may suggest uncertainty about the area south of Cooper Point. Joe Mow, a “senior and culturally knowledgeable member of the group” indicated that Wanyurr Majay country extended as far north as Palmer Point and as far south as Bramston Beach, well to the north of the Mamu claim area. The most senior Wanyurr Majay applicant and acknowledged group elder, Annie Wonga, indicated that the traditional country of her ancestors did not extend north of the mouth of the Russell River and extended as far south as Eubenangee Swamp.

82    At best for the Wanyurr Majay People they appear to be divided as to the southern boundary of their area of interest. Their differences may well be the reason for their not having commenced proceedings to establish recognition of any claim to traditional ownership over the disputed area.

MR WHITE’S REPORT

83    I should also refer to an anthropological report prepared by Mr Bruce White. To a large extent that report relies upon material prepared in support of the earlier Wanyurr Majay People’s application to which I have previously referred. In particular Mr White relies on the report by Redmond and McCarthy. I have not seen this report. However there are numerous references to it in the anthropological evidence. Redmond and McCarthy suggest that the Wanyurr Majay claim rights and interests over an area which extends south to the Johnstone and North Johnstone Rivers. As I have previously pointed out, Dr Pannell reports that Redmond and McCarthy said that some information fixed the southern Wanyurr Majay boundary at Eubenangee Swamp. Redmond and McCarthy also reported that the boundary then ran eastward towards Cooper Point, and then north along the coast “through” Bramston Beach. Mr White seems to concede that Mamu claims to areas north of the North Johnstone River may reflect rights and interests recognized by Dyirbul traditional laws and customs, which rights and interests may conflict with those claimed by the Wanyurr Majay. In effect, Mr White suggests that there may be a shared area held by both Mamu and Wanyurr Majay. He considers that historical material indicates that the location of the boundary between Wanyurr Majay and Mamu lands is uncertain, but may be somewhere between the lower Russell River and the lower Johnstone River. He points out that Dr Weiner, in a report entitled Anthropological Assessment of the Claim by Gerald and Steve Appo over the Daradgee Area, indicated that the Mamu People were unsure of their connection to country north of the Johnstone River.

84    Mr White reports that Wanyurr Majay folklore includes the story of a Yidinji ancestral being named Budabi. Budabi took the form of a snake and travelled in a westerly direction towards the mountains, forming the North Johnstone River and leaving it as the Yidinji boundary. Mr White also reports that Wanyurr Majay People and their neighbours, in considering Dyirbul rights and interests in the disputed area, refer to particular bora grounds or meeting places where Yidinji and Dyirbul rights and interests are thought to begin or end, including Eubenangee, Waugh’s Pocket, Garradunga and Daradgee. Of these four locations Eubenangee is very close to the northern boundary of the Mamu claim area. Waugh’s Pocket is on the boundary. Garradunga lies south-east of Eubenangee, but still within two or three kilometres of the northern boundary. Daradgee is about five kilometres from that boundary. Mr White refers to statements by Ralphy Watson, an elderly Mamu man, that “one crosses into Yidinji country north of the North Johnstone River then to Russell River”, and that Daradgee is located in Yidinji country. Clearly, Mr Watson understood the boundary to be to the north of the North Johnstone River. His meaning concerning the Russell River is unclear. He may have meant that the border was, at some places, north of the North Johnstone River and, at others, the Russell River. Some Mamu people also claim association with Daradgee.

85    Mr White quotes Robert Murray, a Wanyurr Majay man, as saying that although Eubenangee was on “our” land, the Mamu had an interest in a bora ground there. Mr Murray said that the Wanyurr Majay “real boundary” runs down from the top of Broken Nose to the North Johnstone River. As I understand it Broken Nose is in the Ngadjon-Jii determination area, lying to the south of the Wanyurr Majay determination area. It is near Josephine Falls. Many Mamu people originate from that area. Mr Murray does not indicate the direction in which the boundary runs from Broken Nose. Thus it could meet the North Johnstone River at any point along its length. Mr White also reports that Freddy Wonga, a Wanyurr Majay man, regards Mirriwinni, Pawngilly and Waugh’s Pocket as “the last places on his country”. Mr White suggests that Freddie Wonga was describing the boundary with the Ngadjon-Jii. Miriwini lies due north of Pawngilly. Both are near to the eastern boundary of the Ngadjon-Jii determination area, north of the northern boundary of the Mamu claim area and south-east of the Wanyurr Majay determination area. Waugh’s Pocket lies further south. It is west of Eubenangee and on the boundary of the Mamu claim area. It is difficult to see any connection between Waugh’s Pocket and the Ngadjon-Jii determination area. It is more likely that the informant meant that Waugh’s Pocket was on the Mamu boundary. Freddy Wonga’s statement therefore supports the Mamu People’s claim as to the location of their northern boundary at that point. Further, Redmond and McCarthy record Freddie Wonga as saying that the lower coastal Yidinji People’s boundary is at Canal Creek and then runs towards the coast at Cooper’s Point, including country north of the Russell River but not Eubenangee Swamp. The northern boundary of the Mamu claim area runs through Canal Creek from Mt Chalmynia to the boundary of the Eubenangee Swamp National Park.

86    Mr White reports a discussion between Joe Mow, a Wanyurr Majay man and Victor Maund, a senior Mamu man in which they are said to have agreed that the area between Eubenangee Swamp and the North Johnstone River had probably always been shared country. If Mr Maund so agreed then he has either changed his mind, or his view is not shared by the broader Mamu claim group. Mr Maund is a member of the applicant. Redmond and McCarthy record that Joe Mow told them that Cooper Point was his group’s southern boundary, and that the Mamu “take over from Eubenangee Swamp”.

87    The Wanyurr Majay People’s claim, at its most expansive, penetrates deep into the Mamu claim area, but the real focus appears to be on the area immediately south of the northern boundary of the claim area, particularly the area which includes Daradgee, Waugh’s Pocket, Eubenangee, Eubenangee Swamp and Garradunga. Mr White refers to various bora grounds which, he says, are Wanyurr Majay. He suggests that such bora grounds may lie at “places where … the Yidinji were regularly required to defend themselves against Mamu and Dyirbul incursions into Yidinji/Wanyurr Majay territories, crossing the North Johnstone River”. The reference to crossing the North Johnstone River is simply a repetition of the claim that it was the traditional border between Mamu and Wanyurr Majay lands.

88    Mr White then refers to a number of Wanyurr Majay people who are said to be, in some way, connected to the disputed area. They include Annie Edwards and Bella Armie. Annie is said to have been identified with Wood Camp and Daradgee. Mamu people also claim association with those places and have long accepted Annie’s descendants as Mamu people. Bella is said to have lived in the Johnstone River area, north of Innisfail. The Ah Kee family claims Wanyurr Majay affiliation through descent from Bella, whilst the Epong family claims Mamu affiliation through such descent and on other bases. The McCarthy family claims Mamu descent through Bella and on another basis, neither of which bases has been accepted by the Mamu claim groups. Nonetheless it is clear that the McCarthy family have long been associated with Mamu people and Mamu country.

89    Mr White reports that Annie Wonga’s mother, Minnie was born in 1911 at Daradgee “which appears to be in the general area of a boundary between Yidinji/Wanjurr Majay and Mamu country”. Minnie’s father was born in 1865 on the Russell River and her mother, in 1878 on the south bank of the North Johnstone River. At this point, Mr White seems to be quoting from an earlier report, possibly that of Redmond and McCarthy. The statement that Daradgee “appears to be” in the area of the boundary hardly detracts from the Mamu claim.

90    Mr White reports that Clara Mow claims to speak for all country between Deeral (west of the mouth of the Russell River) and the Johnstone River. As a child she visited Bramston Beach and walked along the coast to Flying Fish Point. Her grandson, Shane Cassidy, claims that there are bora grounds at Golden Hole and Cooper Point. I understand Golden Hole to be in the Ngadjon-Jii determination area.

91    At paras 28 and 29 of his report Mr White concludes as follows:

28.    In relation to the Wanyurr Majay people and the extent to which they may hold native title rights and interests in the North Johnstone area then, noting the kind of detail required by the Federal Court and National Native Title Tribunal, it can be seen from the information outlined above:

(i)    [Factual Basis 1]: the Wanyurr Majay People are a clearly defined, formally recognised native title holding group who are descended from a ‘pre-British sovereignty’ Yidinyji language speaking group who have been long associated with a southern lower coastal Yindiyji region (otherwise referred to as Wanyurr Majay country) the southernmost extent of which would seem, from the information available, to reach into the North Johnstone area.

(ii)    [Factual Basis 2]: the Wanyurr Majay People already hold determined native title rights and interests to a portion of their southern lower coastal Yidinyji region (or Wanyurr Majay country) being native title confirmed to arise out of an existing Yidinyji et al normative system of traditional law and custom, the southern most extent of which would seem, from the information available, to reach into the North Johnstone area including into bora grounds such as Daradgee in that area

(iii)    [Factual Basis 3]: while there is only limited information available within the Wanyurr Majay anthropological reports as to the full nature and extent of particular Wanyurr Majay families connections to the North Johnstone area (including, Daradgee, Eubanangee, Flying Fish Point, Cooper Point, and North Johnstone River), it remains clear from that information that there are Wanyurr Majay People physically connected to the North Johnstone ‘overlap” area who are continuing to exercise rights and asserts interests in that area in accordance with the existing Yidinyji et al normative system of traditional law and custom

G.    Summary of Findings and Associated Conclusions

29.    From my research and the information available to me as summarized and outlined above, for the reasons above (including particularly the reasons outlined in section F above, I conclude:

(i)    there are identifiable Wanyurr Majay families particularly connected to North Johnstone areas currently the subject to an application for a native title determination by the Mamu peoples …

(ii)    the identified Wanyurr Majay families connected to North Johnstone ‘overlap’ areas, do so in accordance with the Yidinyji et all normative system of traditional law and custom that stretches into the North Johnstone areas including, in particular, the Daradgee bora ground and surrounds

(iii)    the identified Wanyurr Majay families connections to the North Johnstone Area including places like Daradgee, Eubanangee, Flying Fish Point, Cooper Point, and North Johnstone River, constitutes both physical connections plus ongoing, continuing exercising of rights and interests held under their Yidinyji et al system of traditional law, the full nature and extent of which still needs to be fully investigated in much greater detail (ie detail sufficient to prove their native title)

(iv)    should the Mamu People’s native title application proceed to a determination over North Johnstone area prior to Wanyurr Majay families rights and interests being acknowledged and more fully investigated, then probable generations and lifetimes of Wanyurr Majay families’ rights and interests in the area will be overridden by a different People under a different system of traditional law and custom, before Wanyurr Majay families are provided opportunity to prove their native title.

92    Concerning this summary of the Wanyurr Majay claim, I make three points. First, the evidence says very little about the Wanyurr Majay or their predecessors prior to Tindale’s 1938 research and map. On Palm Island Tindale encountered Mick Tiger who claimed to be a Wanjuru man from Innisfail. At that time Tindale located Wanjuru country north of Babinda. Obviously, Tindale did not accept that Innisfail was in Wanjuru country. In fact he described the Wanjuru as located on the banks of the Russell River from its mouth to Babinda. Secondly, from the Mamu point of view the Wanyurr Majay have had adequate opportunity to raise any opposition to the Mamu claim. Even if I were to accept at face value the alleged lack of support from the North Queensland Land Council, the Mamu People should not suffer because of it. Thirdly, even now, it seems that the Wanyurr Majay claim has not been “fully investigated”.

BORA GROUNDS

93    Much of Mr White’s work and the Wanyurr Majay “case” focuses on bora grounds. Weiner, in his 2007 report, discussed the subject in some detail. At pp 98-100 of his report he says:

Bora grounds, whether they are still to some extent intact or whether Mamu People retain only the knowledge that one previously existed but is now destroyed, are critical places in the maintenance of Mamu identity, continuity to law and custom, and custodianship of country in the most comprehensive sense:

1.    It is well documented that bora grounds were places where, among other things, law was passed on, boys were initiated and, disputes resolved according to law and custom. The two most common things disputed were arguments over rights in women, and accusations of sorcery leading to the death of people … . In this way, the passing on of law and custom and the maintenance of social order was integrally a function of being in and on certain sacred places in country.

2.    Throughout Mamu history, they have endeavoured to bury their dead on or near bora grounds, as an attempt to maintain the continuity of the authority of the elders with the sacred authority manifested in the complex of politico-religious practices surrounding the bora grounds. As Dean Purcell put it (10-10-06), having the spirits of the dead near bora grounds enhances the spiritual power of such grounds in settling disputes and making decisions.

3.    Knowledge of bora grounds and their history is an important component of the Mamu people’s assertion of unique proprietary interest in country. That is, their special and in-depth knowledge of bora grounds affirms that the country is Mamu country.

4.    Protecting important spiritual sites such as bora grounds from further disturbance, from desecration (inadvertent or otherwise) or obliteration, represents one of the most important ways in which the Mamu, like many other Aboriginal groups, attempt to assert their custodial and proprietary rights over country.

5.    I speculate that there were at least two types of bora grounds in this region, and this speculation was also confirmed by the Mamu themselves (e.g. V. Maund interview 18-10-06). One type was characteristically located on the border between two tribal polities. These grounds served as meeting places between distinct politico-territorial units and were places where trade, marriage, dissemination of news, dispute resolution, and shared religious responsibilities could occur. Another type of bora ground was located more in the heartland of the politico-territorial unit and can be thought of as the place where law that was distinct and unique to the tribal unit was revealed, publicly enacted and passed on to initiates. These were the grounds near where people sought to be buried.

Johnstone … made a clear distinction between what he called corroboree grounds and bora grounds, which accords with the distinction made above. “… in all my experience I have never known a corroborree and bora bound being together, or in the close vicinity of each other” … “’The corroborree ground’ is simply a place of amusement, being the theatre or opera house of the aboriginal; but the bora ground is always in some secluded spot, and I have never seen a gin near one, but have often known them to go round them out of sight, and will not speak of them”.

To conclude, bora grounds that are recognized, both within the Mamu group and by their neighbours as being in Mamu country, constitute a focal catalogue of places which continue to anchor Mamu people to country both in their historical and contemporary manifestations.

94    In his report Weiner identifies a number of bora grounds throughout the claim area. I need not identify all of them. However on p 97 at item 14, it is said that there was:

A bora ground near the intersection of Dinner Creek and Garadunga Road. Ellie McGowan, now deceased, lived near there all her life and remembers as a child seeing large number of Aborigines en route to this bora ground. It is at the edge of Mamu country near Eubanangee Swamp and it could be that many of the people who attended that bora ground were neighbouring Yidinji from above the Russell River … Like Ticham, it could likely have been a main inter-tribal bora ground.

95    Weiner then refers to the work of D Jones, Hurricane Lamps and Blue Umbrellas: a History of the Shire of Johnstone to 1973, saying:

Jones … wrote of the Mamu claim area that “the district appeared to be more than usually thickly populated by aboriginals and bora and corroboree grounds abounded in the ranges”. She lists the following: “… on the old road to Cairns slightly beyond Garadunga between Eubanangee and the road [this is no. 14 on the above list]”; “the one at the mouth of Victory Creek”; one near Mundoo”, “one in Waugh’s Pocket”, one at the junction of the two Liverpool Creeks”, one in Japoonvale on the terraces up No. 3 branch near the Stratvell school”, and “another up the Utchee Creek road” (ibid.).

Jones also mentions Kootaka bora ground, “thirteen miles south west of Geraldton” (which she obtained from Christie Palmerston’s diary dated July 12, 1886 on one of his Russell River expeditions …, and Ooypoolar bora ground, a short distance from Kootaka, where Palmerston and his party dispersed a large number of aboriginals on July 13, 1886 … Descending to the South Johnstone, they reached Tchuken bora ground the next day (ibid.). On the map that Savage provides for the routes of Christie Palmerston’s various exploratory trips, he shows that Koorkakoorka is also the name of a bora ground (as reported by Palmerston on October 26, 1886) and is near Toonpan bora ground (reported October 18, 1886), and that both are on the west slope of Mount Bartle-Frere. “Koorkakoorka” is the Mamu name for Mt. Bartle-Frere, as Victor Maund told me in October 2006.

96    In other words there were Mamu bora grounds north of the northern boundary of the Mamu claim area. Mr White suggests that bora grounds to the south of Eubenangee Swamp (Daradgee, Eubenangee and Garradunga) may be located at points where the Wanyurr Majay habitually engaged in battle with the invading Mamu. I find it difficult to understand why bora grounds would be located in such an area. Dr Weiner’s suggestion that they were corroboree grounds where neighbouring tribes met peacefully is more easily accepted, although the Wanyurr Majay fear of the Mamu seems inconsistent with either view.

MS DANIELL’S REPORTS

97    I turn now to Ms Daniell’s work. She was initially asked primarily to address the question of continuity of observation and recognition of traditional laws and customs in the claim area, but also to determine whether the McCarthy and Surha families should be included as members of the claim group. She was also asked to update and build upon the genealogies provided by Weiner and Heijm. Ms Daniell conducted numerous interviews with Mamu People and, as far as possible, interviewed representatives of families associated with each of the “barra” groups. Ms Daniell noted that some Mamu People did not associate themselves with any particular area, and did not acquiesce in the idea that specific areas were the responsibilities of particular family groups. Rather, they believed that Mamu country, as an entity, was the responsibility of all Mamu People, and that people would migrate across country dependent upon the seasons. She found that both the McCarthy and Edwards families identified with the Bagirbarra area. The families are closely related.

98    Ms Daniell concluded that there was insufficient evidence to support the proposition that the McCarthy family derived Mamu affiliation through Walter McCarthy and, through him, Nellie Cavoo. That claim depended upon Walter’s being Nellie’s son, a fact of which Ms Daniell was not satisfied. Ms Daniell’s research disclosed that the Edwards family and the McCarthy family had connections to the disputed area, including Ella Bay and Flying Fish Point, the Edwards family, through Polly, and the McCarthy family, through Bella. To some extent, Ms Daniell’s recommendation that Bella be included as an apical ancestor in the Mamu claim was prompted by her recommended inclusion of Polly in place of Annie, and the possibly close familial connection between Bella and Polly. Ms Daniell concluded at p 108 that:

An analysis of all the above information concludes that Bella had a strong presence in the Mamu claim area throughout her life, from her birth in 1887 to 1968, when she passed away at Daradgee.

99    In a supplementary report dated June 2011, Ms Daniell provided clarification of her earlier report. In particular, she identified Annie’s parents as Polly Armie and Charlie Musycon, a Malayan man. Thus, if Annie Musycon was Mamu, it must have been through Polly. The original application referred to the “descendants” of Annie Musycon. It is theoretically possible that the Mamu identity of Annie’s descendants was derived from her husband and their father, rather from her. However there seems to have been no suggestion to that effect.

100    Although Ms Daniell identifies community and personal history records which suggest that Bella may have been Mamu, it is clear that a substantial factor supporting the recommendation that she be included as an apical ancestor was the inclusion of Annie Musycon and the contemplated replacement of Annie by Polly, having regard to the possibly close familial relationship between Bella and Polly. A further factor was Bella’s long association with the claim area. I should add that Henry Epong and his son, James Henry Epong both claim Mamu affiliation through Bella and assert her Mamu affiliation. However both have another, uncontroversial basis for claiming such affiliation.

101    In Ms Daniell’s 2010 report she indicated that the northern boundary of the Mamu claim area might require further examination. In her report dated June 2011 she indicated that the question had arisen as a result of her learning, toward the end of her research for the 2010 report, that the Wanyurr Majay might claim territory south of the Russell River and as far south as the North Johnstone River. In her interviews with the various families associated with the five “barra” groups, each had clearly identified with its country and plainly displayed knowledge and connection to it. In those circumstances, and because of the evidence as to Bella’s association with Mamu country, in particular the Bagirbarra country, she decided to submit the 2010 report, adding the proviso that the north-eastern boundary might require re-drawing. However, following further research, particularly by reference to Dixon’s research, and his identification of the five barra dialect groups, she concluded that the north-eastern part of the claim area must have been Bagirbarra country. Ms Daniell considers that Dixon’s research on the Dyirbul language was “easily the most extended social science study of the region that has so far been made”. Hence she considered that his indication that the Bagirbarra group was associated with the north-eastern part of the claim area (which is substantially the disputed area) was a sufficient basis for her to conclude that the boundary was in the correct place.

DR GLASS’S REPORT

102    In the course of preparing these reasons, it emerged that there are two versions of Dr Glass’s report, both dated 31 October 2012. One (the “shorter Glass report”) is exhibit 4. The other (the “longer Glass report”) is exhibited to the affidavit of Jennifer Sue Jude filed on 28 February 2013. As I understand it, the shorter Glass report is to be treated as the relevant version for present purposes. However Dr Mayo referred to certain passages in the longer Glass report. Those passages are also to be treated as evidence in the case.

103    Dr Glass’s task appears to have been to consider relevant material and conduct interviews with Bella’s descendants and others in order to determine whether such descendants are Wanyurr Majay, Mamu or both. In her report Dr Glass is very critical of Ms Daniell’s methodology, arguing that she placed too much emphasis upon community and personal history records in forming her view that Bella was of dual Wanyurr Majay and Mamu identity. At para 48 Dr Glass asserts that:

… (a) there is nothing to substantiate [Ms Daniell’s] conclusion of a dual identity other than that these archival records situate Bella Armie/Epong into an area of country that is under the Mamu claim. (b) Daniell … provides no detail of where this dual Wanyurr Majay/Mamu identity originates, that is, whether this supposed Mamu bloodline flows through Jenny Abasene’s mother or her father. (c) Furthermore, her assessment of CPH records to impose a traditional identity is simply a flawed researched process, and (d) Daniell … clearly invalidates the guidelines and cultural protocols followed by previous Mamu anthropologists Nick Heijm and Dr James Weiner … .

104    However it is clear that Ms Daniell sought to interview representatives of all families associated with each of the barra groups. She identified the Edwards family’s association with the Bagirbarra area, a fact which had not previously been discovered. She also identified the McCarthy family’s close association with that area and with the Edwards family. Whilst it is true that in dealing with Bella’s affiliation, Ms Daniell focuses upon community and personal history to the extent that it is available, she also makes reference to information derived from family members as to Bella’s association with the claim area and her places of residence. Further, under the heading “Genealogical Report – Descendants of Polly Armie and Bella Armie”, there is substantial information derived from members of the Edwards family who claim descent, through Annie Musycon, from her mother, Polly. In another part of the report, under a similar heading, there is an analysis of genealogical data collected during interviews with the McCarthy family. In Ms Daniell’s assessment of Bella’s affiliation, she assesses the community and personal history records in conjunction with the obviously well established positions of both the Edwards and McCarthy families in the Mamu People. Ms Daniell appears not to have spoken to many of the people to whom Dr Glass spoke.

105    Dr Glass concludes that Bella was a Yidinji woman, born at Babinda Boulders. However Dr Glass also acknowledges that the Edwards family, descendants of Annie, “have long been acknowledged by Mamu People as part of their claim group description”. Dr Glass also seems to accept the identification of Polly as Annie’s mother and the “strong affiliation” of the Edwards family with Flying Fish Point and Cooper Creek. She accepts that Anthony Edwards has speaking rights for the Flying Fish Point area.

DR MAYO’S REPORT

106    Dr Mayo provided one report on 20 December 2012 and a revised report in February 2013. The revision was the result of Dr Mayo’s having spoken to representatives of the McCarthy family. He had not previously been able to do so. In his February 2013 report, Dr Mayo states at p 3 that:

The purpose of this report was to outline the traditional identity/ies of the McCarthy family, in particular, ascertain whether or not they have a traditional Mamu identity. The particular focus of this enquiry was the McCarthy antecedent Walter/Wallice/Wally/Wari McCarthy Snr.

107    Dr Mayo explores the McCarthy family’s claim to Mamu affiliation through Bella and through Walter McCarthy Snr and his mother, Nellie Cavoo. He concludes that the preponderance of archival material suggests that Bella was from the Johnstone River district. There is a strong suggestion that she was related by marriage to the Edwards family. In the McCarthy family oral history Walter McCarthy is “strongly associated with the Ella Bay area in the north-eastern area of the Mamu claim”. Dr Mayo notes that, as Ms Daniell observed, Dixon considered this to be part of the Bagirbarra dialect area. Dr Mayo also notes at p 18 that in a 2007 cultural heritage report for Ella Bay Developments (a company) and the Mamu People conducted by Phillip Pentecost, it was said that:

Interviews were held with John Edwards, a Mamu elder and Joe Elia a long term resident with links to both the ‘Islander’ and Aboriginal communities extending back to the 1920s. Joe Elia said that the Ella Bay area belonged to Jimmy Hart, Wari McCarthy and Jack Edwards (John’s father), all closely related to each other and to himself.

108    Jack Edwards may have been Annie’s husband. There seems to have been no examination of his affiliation. Joe Elia was the son of Annie Kukai, the daughter of Harry and Annie Cavoo. Presumably, Harry Cavoo was related to Nellie Cavoo and was therefore Mamu. It seems, however that Mamu men Victor Maund, Harry Epong and Andrew Appo considered Walter McCarthy to have been a Yidinji man. The McCarthy family told Dr Mayo that they had originally claimed Mamu affiliation through the marriage of Nancy Cuthill to Harry Epong. The McCarthy family provided Dr Mayo with a copy of a 2005 article from the Innisfail Advocate in which the 93 year old Nancy Epong (nee Cuthill) provided an account of her life. She said that she had been born at Daradgee in 1917 and described her husband Harry Epong as “a Mamu man”. Harry’s elder full sister, May had married Walter McCarthy, an ancestor of the current McCarthy family. Bella was the mother of both Harry and May.

109    The McCarthy family suggested that rather than Bella, Bella’s mother Jenny (Sinie) should be recorded as an apical ancestor. They also asserted that if Polly was an apical ancestor for the Edwards family, and was included on the claim, then Bella could not be excluded. That proposition depends upon there being a relationship between Bella and Polly. The McCarthy family provided other evidence concerning such relationship. Dr Mayo records the day-to-day involvement of the McCarthy family in Mamu activities. He concludes that the weight of community support for Bella’s being a Yidinji woman, associated with the Boulders, outweighs the archival records referred to by Ms Daniell. He suggests that in those circumstances, it would be necessary to consider further research in order to ascertain whether that conclusion affects the Edwards family’s claim to Mamu identity.

110    Dr Mayo also concludes that the McCarthy family might be able to claim connection through Walter McCarthy Senior and his mother Nellie Cavoo/Caboo, which possibility was discounted by Ms Daniell. He finds conflicting views concerning the affiliation of Walter McCarthy Senior, some suggesting that he was Yidinji and others, that he was Mamu. At p 34 of his report Dr Mayo concludes:

While the archival record for Walter McCarthy Snr does not support a Mamu identity, it is apparent that the McCarthy family have a long association with the Mamu claim area especially the area referred to as Bagirbarra. This is strongly supported by Joe Elia/Allia’s, albeit brief, comment that the Ella Bay area “belonged to Jimmy Hart, Wari McCarthy and Jack Edwards”. If the oral history is accepted that Walter’s mother was a Cavoo/Caboo, probably Nellie Cavoo/Caboo, then the available archival records neither clearly extinguishes [sic] nor confirms the possibility of a Mamu identity through Nellie Cavoo/Caboo and her mother Bam-bi-e/Bambil/Bambi. Further research, including the production of a genealogical sheet could be conducted to try to clarify the complex relationships involved and to determine wider genealogical implications, though it is possible that the matter would not become any clearer.

While I recommend further research, on the basis of the material presented in this report, Nellie Cavoo/Caboo or her mother Bam-be-i/Bambil/Bambi could be considered by the claimant group as an apical ancestor on the Mamu Native Title claim.”

111    As I understand it, there is no current proposal for any further amendment of the claim group description to include the McCarthy family, either by virtue of their descent from Nellie Cavoo/Caboo and her mother Bam-bi-e/Bambil/Bambi, or by virtue of their descent from Bella. Although Dr Mayo suggests further research concerning the Edwards family, I doubt whether such a step would be desirable or helpful. First, the Mamu claim group accepts that family as part of the claim group, but does not accept the McCarthy family. No clear sibling relationship has been established between Polly and Bella. The doubts surrounding Bella’s affiliation do not, to my mind, necessarily detract from the claim group’s clear acceptance of the Edwards family. Nobody suggests that the Edwards family is other than Mamu. Secondly, Dr Glass and Dr Mayo found the McCarthy family and members of the claim group to be reluctant to participate further in interviews concerning this matter. Such reluctance is entirely understandable in view of the long history of enquiries in connection with it. Finally, there has already been substantial research concerning the Mamu, the Wanyurr Majay and the Ngadjon-Jii Peoples. Much of the present difficulty seems to arise out of different interpretations of the available evidence rather than the discovery of new evidence. I very much doubt that any more reliable information or more persuasive interpretation of such information will emerge from further investigation or consideration.

APICAL ANCESTORS AND THE CLAIM GROUP

112    I should say a little more about the use of apical ancestors in describing the claim group. Section 61(1) provides that an applicant for a determination of Native Title must be authorized by the persons who, according to their traditional laws and customs, hold the communal group rights and interests comprising the particular Native Title claim. This group is the Native Title claim group. Section 61(1) contemplates a group which shares a body of traditional law and customs pursuant to which the group holds common or group rights and interests which comprise the Native Title to be claimed. Pursuant to s 251B, the authorization process must comply with any relevant procedural requirements of the group’s traditional laws and customs or, absent any such requirements, be in accordance with a decision-making process which has been agreed to and adopted by the group. It follows that membership of the claim group must be determined in accordance with traditional laws and customs, using either of the processes identified in s 251B.

113    At some stage, a claim group must settle upon a description of itself, or authorize the applicant to do so, in order that the proposed application will comply with s 61(4). The use of apical ancestors is a method of so doing. Identifying the claim group as descendants of named ancestors makes it possible to identify the members of the claim group at the time of the application and thereafter.

114    The Native Title Act does not require that apical ancestors be identified, or that there be any mention of them. In particular, there is no requirement that they be former members of the group holding the relevant rights and interests pursuant to relevant traditional laws and customs, although they generally will be such people. It is possible, for example, that an apical ancestor may have been known to have had his or her children with an unidentified spouse who is understood to have had an affiliation through which his or her descendants may claim relevant affiliation. Some families may simply be accepted as members of the claim group without it being possible to identify the basis for such membership. Nevertheless it may be convenient to describe that family by reference to a known apical ancestor, even if that ancestor is not known to have been a member of the group holding the relevant native title during his or her life time. In the present case, the applicant asserts that the group members are descendants of identified persons but does not assert that such persons were, themselves Mamu. Most of them probably were.

115    Knowledge concerning apical ancestors may be relevant to the proof of other aspects of the claim. To the extent that there is evidence concerning their lives, their geographical locations and their statements, they may demonstrate traditional rights and interests exercised over relevant areas and the nature of such rights and interests. That evidence may assist in establishing traditional ownership of such areas and continuity of connection.

116    In my view the composition of the claim group, per se, is a matter for the claim group. However, once it has been defined, the applicant must prove that, pursuant to traditional laws and customs, that group holds native title over the claimed lands and waters, and that it does so pursuant to traditional laws and customs passed down through the generations. It must also be shown that over the relevant period, connection to the relevant land has been maintained. The applicant need not show that each member of the claim group is descended from a person who was part of the group holding native title over the relevant area at the time at which British sovereignty was claimed. As Brennan J said in Mabo v State of Queensland (No 2) (1992) 175 CLR 1 at 61:

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

117    Similarly, 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 one set of laws and customs or normative system.

118    It follows that the first step in a Native Title claim is to identify the group which claims presently to hold Native Title over the relevant lands and waters pursuant to that group’s traditional laws and customs. In other words, an existing group must identify those who are members and those who are not. Almost certainly, that exercise will not commence with the identification of persons who were in a group which held Native Title at the time of assertion of British sovereignty, followed by identification of succeeding generations. More likely, the exercise will commence with identification of those who comprise the present group, their traditional laws and customs, the lands and waters over which they claim Native Title and the content of such Native Title. It will then be necessary to consider such evidence as is available in order to link the claim group and its claim to times prior to British sovereignty (or first European contact) and thereafter. The process may involve the description of particular families or sub-groups, perhaps by reference to apical ancestors. Such an approach will help to identify, in a consistent way, past, present and future group members.

119    In some cases the circumstances in which a particular family came to be recognized as a member of the group may not be known, although its membership is beyond challenge. In that case, the absence of knowledge of the basis for membership may not matter. Where there is doubt, more research (amateur or professional) and close examination of claims may be necessary. In this case the different attitudes to the apical ancestors of the Edwards family and those of the McCarthy family may spring from the fact that the Edwards family is firmly accepted by the group whilst the McCarthy family is not. In the case of the Edwards family, there seems to be little concern about the identity of the ultimate apical ancestor. In the case of the McCarthy family, the identity and status of the apical ancestor appears to be of critical importance, presumably because group members have not firmly accepted the family as being Mamu.

120    Whilst the identification of the claim group may be a matter for the claim group itself, such identification may affect capacity to establish its claim to hold Native Title. An applicant must show:

    continuing acknowledgement of relevant traditional laws and customs, traced back to a time prior to British sovereignty; and

    continuing connection of the group to the relevant lands and waters since that time.

121    Inability to show continuity of composition of the group (in the sense of familial succession) may lead to an inability to show connection between the claim group and the pre-sovereignty group which held Native Title over the relevant lands and waters and/or continuity of connection thereafter.

122    In the present case, a great deal of attention has been given to Bella’s affiliation as the basis for the McCarthy family’s claim to membership of the claim group. However, in my view, the status of that family has been decided by the claim group itself. Some time has also been spent on the question of Polly’s affiliation and her relationship to Bella. There is at least a suggestion that further efforts should be made to ascertain the status of the Edwards family as members of the claim group. Again, in my view, that question has been settled by the claim group. The outstanding question, as I see it, is whether the claim group, as presently constituted, can demonstrate that it is the traditional holder of Native Title over the disputed area.

123    I should make one further comment concerning the claim group’s right to determine its own composition. Dr Glass, in her report, referred to my decision in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625, particularly to a passage concerning the claim group’s right to determine its own composition. In that case, the description of the claim group differed from the description in the present case. In particular, the amended description required descent from apical ancestors, together with self-identification and group recognition. Adoption was also recognized as conferring group membership. In the present case membership of the claim group depends solely on descent from identified ancestors. Nonetheless, there can be no doubt that it is for the claim group to determine its own membership. I need not consider the consequences of bad faith or the other matters canvassed in Waanyi at [270].

THE JOINDER APPLICATION

124    When the respondents agreed, in July 2012, to the proposed determination and allowed it to be filed, they conceded that the claim group, as then constituted, was able to demonstrate its entitlement to Native Title over the whole claim area, including the disputed area. The State now asserts that I should not make the proposed determination because of:

    Bella’s removal as an apical ancestor;

    the claim by Messrs Ah Kee and Murray;

    the reports of Dr Glass and Dr Mayo; and

    the other available material, including the State’s views concerning all of these matters.

125    In a sense, the State invites me to revisit my refusal to permit the joinder of Messrs Ah Kee and Murray as respondents to these proceedings. They applied for joinder in order to oppose the Mamu application to the extent that it may encroach upon their perceptions as to Wanyurr Majay traditional rights and interests. The effect of such joinder would have been deferral of the proposed consent determination to allow investigation of the claims to the disputed area, possibly followed by a hearing. The State seeks adjournment of the consent determination in order to carry out a similar process, with the same potential for further delay.

126    As I understand it, Messrs Ah Kee and Murray did not seek to establish, in these proceedings, any individual Native Title rights and interests to which either of them might be entitled. They rather sought to safeguard either communal Native Title rights and interests held by the Wanyurr Majay People or their own rights as Wanyurr Majay men to enjoy the rights and interests of that group. The involvement of individual indigenous persons in proceedings pursuant to s 61 of the Native Title Act poses substantial procedural problems. First, the Court will not usually permit some of those entitled to the benefit of rights and interests to enforce them. Generally all persons so entitled must be joined. Secondly, the combined effect of ss 13, 61, 213 and 225 of the Native Title Act is that a determination as to the existence of Native Title may only be made in this Court on the application of a duly authorized applicant, and in accordance with the provisions of Pt 3 of that Act. See Commonwealth v Clifton (2007) 164 FCR 355. Neither Mr Ah Kee nor Mr Murray individually comprises, nor do they together comprise such an applicant. Thus the Court cannot in these proceedings, even with them as parties, make a determination as to the existence of the Native Title which they claim to be vested in the Wanyurr Majay People. It may, in theory, be possible for them to seek to disprove the Mamu claim by disputing the facts on which it is based, but without relying upon the putative Wanyurr Majay claim. However, in practice, it seems unlikely that they could successfully prosecute such a “defence”.

127    I have previously observed that the present application was filed in 2001. The evidence indicates that such filing followed discussion amongst various indigenous people who were likely to be involved in future native title claims over areas between Trinity Inlet and Innisfail. The boundaries of the Mamu claim area were identified in the application which was subsequently registered and notified. The notification process prescribed by the Native Title Act is intended to give notice of each claim to all who may be affected by it. It seems probable that individual Wanyurr Majay people had notice of the Mamu application from, at the latest, some time in the second half of 2001. It is now suggested that some of them may not have been aware of the precise area over which the claim was made. This seems unlikely and, in any event, they had only to enquire. They are, after all, neighbours of the Mamu. At least by 2006 they had access to Redmond and McCarthy’s report which sets out the extent of their own claims. Presumably, they or those advising them also had access to the historical documents identified by Weiner and Heijm, Daniell and Pannell, together with the works of Tindale and Dixon. It may be that they were, at one stage, advised to focus on the undisputed part of their overall claim area, but it is incomprehensible that until 2012, no indication was given to the Mamu People that their application was contested. On that date, Mr Doré first raised the matter in Court, after the date for a consent determination had been fixed.

ASSESSMENT OF THE MAMU AND WANYURR MAJAY CLAIMS

128    The Mamu case is very strong. There is no doubt that in 1871 there were indigenous people at Cooper Point and further south. Some of the survivors of the wreck of the Maria reached the Johnstone River. There is no suggestion that the inhabitants of that area appeared to belong to a different tribe from that of people who had been encountered at Point Cooper. The subsequent retaliation is recorded in Mamu folklore. Banana Island, where the reprisals occurred, remains a sacred site. Palmerston’s violence towards indigenous people is also recorded in Mamu folklore. In his 1882 and 1886 exploratory trips to the North and South Johnstone and Russell Rivers, Palmerston identified Mamu place names. In Meston’s 1889 word lists he lists Mamu words found on the Russell River. His 1904 list of words for the Johnstone River were entirely Dyirbul whilst words for the Mulgrave River were mixed Dyirbul and Yidinji. In 1891 Gribble identified the “Russell tribe” as “Mam-oo”. In 1938 Tindale identified two Palm Island residents who identified as Mamu and claimed affiliation to the “Russell River tribe”. Other Mamu people on Palm Island identified with Innisfail, Cardwell, Silkwood, Tully, Jordan Creek and Jumbaroomba.

129    Tindale’s 1938 map placed the Mamu as far north as Babinda, with the Wanjuru to the north. His 1940 map was to similar effect. In 1963, on Palm Island, Nelson informed him that the Madjandji tribe was at Babinda. He said that the people at Innisfail were the Mamu. It may be significant that he was not asked about the location of the Mamu or the Wanjuru. He was simply asked to identity the people at Innisfail.

130    Tindale’s 1974 map seems to fit the Madjandji into part of the area previously assigned to the Wanjuru, whilst the Wanjuru are located further south, in territory previously identified as Mamu country. None of the anthropological evidence seems to explain Tindale’s variations to the boundaries in this area. In his text the description of the Madjandji suggests locations north of the mouth of the Russell River and at Babinda and northwards towards Deeral. It is said that they are “close” to the Wanjuru “who live farther south toward Innisfail”. The Wanjuru are located south of the mouth of the Russell River, inland to Babinda, and south to Cooper Point “and Innisfail”. This description seems to differ from the earlier suggestion that the Wanjuru were “toward Innisfail”. The Mamu are “on the Johnstone River” and “at Innisfail”. The notion of their being “on the Johnstone River” suggests that they were on both sides of it, placing Innisfail in their territory. This suggests that Tindale was uncertain as to the extent to which the Wanjuru territory extended south past Cooper Point and as to where, north of the Johnstone River, any boundary was located. To the extent that Tindale puts the Wanjuru-Mamu boundary south of Cooper Point, his view should be treated as speculative, at least in the absence of any explanation as to the basis for that view.

131    Dixon’s work reflects a similar southward shift of the border between the Yidinji-speakers and the Dyirbul-speakers. However it is clear that as late as 1972, he located the Bagirbarra group of the Mamu People in the disputed area, extending north to Cooper Point and beyond. Thereafter the border seems to have moved between Cooper Point and a point just north of Innisfail, save in the 1991 map. It placed the southern boundary of the Yidinji-speaking people just south of Babinda and on the coast, at Bramston Beach. In the 1996 map the boundary has again moved south, almost to Innisfail.

132    It may be that Dixon was, to some extent, influenced by Tindale’s accommodation of his “discovered” Madjandji tribe. It may also be that the population was moving. In the end, I have no doubt that like Tindale’s work, Dixon’s work has much value, but it was not prepared for my present purpose. Given that the focus must be, to some extent, upon the pre-sovereignty position, there is much to be said for the earlier, rather than the later work. I should say that the Wanyurr Majay People have not suggested that they have succeeded to the traditional ownership of any territory held by the Mamu at the time at which Britain claimed sovereignty.

133    Although it would be dangerous to place too much emphasis upon the 2001 meeting and its apparent outcome it is, nonetheless, an event which supports the Mamu People’s identification of their boundaries. It seems likely that the Mamu advanced their identification of the northern boundary, and that there was no immediate adverse reaction to the claim. That claim was presumably reflected in their application. Whatever the Wanyurr Majay may have said privately, there seems to have been no public disagreement until possibly 2011 when Ms Daniell apparently became aware of a problem, or 2012 when Mr Doré raised the matter. I accept that the matter may have previously been raised with the North Queensland Land Council, although I would have thought that if it had been raised regularly and/or with any force, something would have been done about it. By itself, the Wanyurr Majay’s failure to act suggests either that they did not consider that they had a strong claim, or that there was dissention within the claim group as to such claim. The latter position is suggested by the apparently different opinions amongst the Wanyurr Majay revealed in the anthropological reports. The draft TUMRA map also supports the Mamu claim that their northern boundary crosses the coast at Cooper Point.

134    I turn to the evidence from indigenous people as to the location of the boundary between the Mamu and Wanyurr Majay Peoples. Dr Powell, in her 2003 report, said that the Wanyurr Majay claimed that their country extended southward, to at least Cooper Point. In their 2006 report, Redmond and McCarthy said that the Wanyurr Majay put their southern boundary at the North Johnstone River in the vicinity of upper Daradgee or Eubenangee Swamp, and east to Cooper Point. During 1997 Dr Pannell was told by a Mamu man that the “rivers are the boundaries” but that Eubenangee Swamp belonged to a “different tribe”. A Ngadjon-Jii man said that Waugh’s Pocket was in Mamu country. Annie Wonga, who apparently now identifies as a Wanyurr Majay woman, fixed the Madjandji boundary as including Eubenangee Swamp “up to Bramston Beach”.

135    In 2011 Dr Pannell spoke to Wanyurr Majay People. Joe Mow, a “senior and culturally knowledge member of the group” said that Wanyurr Majay country extended south to Bramston Beach. Robert Murray said that it extended to Cooper Point and “further south again to the North Johnstone River”. Annie Wonga, “the most senior applicant and acknowledged group elder” said that the traditional country of her ancestors extended as far south as Eubenangee Swamp. I should add that Dr Pannell reasserts her previous findings, expressed in earlier reports, that “there is no evidence in the secondary sources, dating back to the 1880s to support the broad claim of the Wanyurr Majay to traditional ownership from Deception Point in the north to Mourilyan Harbour in the south”.

136    Clearly, the Wanyurr Majay People claim that their traditional lands extend to the North Johnstone River. However it is also clear that the Mamu have, probably since at least 1871, but certainly since the 1890’s been recognized as located on the North Johnstone River and on the Russell River. In effect, the Wanyurr Majay claim is limited to the coastal region, extending no further west than the western boundary of the Ngadjon-Jii determination area and Mt Chalmynia. Further, they seem particularly to claim a special interest in the area south of Eubenangee Swamp, as far south as Daradgee, together with some claimed interests in coastal areas between Cooper Point and the mouth of the Johnstone River.

137    It is important to keep in mind that rights and interests pursuant to traditional law and custom must generally be sourced in rights and interests so held as at the time of first assertion of British sovereignty. In the present case, the evidence is generally of events since the loss of the Maria in 1871, although there is reference to the earlier visit by the party from the Rattlesnake in 1848. In any event, it is reasonable to infer that the indigenous groups which, in 1871, held rights and interests in the area pursuant to traditional laws and customs, had held those rights and interests prior to 1788 and continued to hold them after 1871, save to the extent that they were disrupted by European settlement. I do not overlook the possibility that one indigenous group may, pursuant to traditional law and custom, have succeeded to rights and interests previously held by another group. Nonetheless, I do not understand either the Mamu or the Wanyurr Majay to assert any claim on that basis. However I suspect that at least some of the disagreement with which I am presently concerned has arisen as the result of the movement of indigenous people since 1871 and up until the present time.

138    A great weakness in the Wanyurr Majay claim is the absence of any suggestion in secondary sources that they occupied any part of the Mamu claim area prior to 1972 when Tindale prepared his draft for the 1974 map. Even in 1974 Tindale’s description suggests an uncertainty which does not appear in the map. On the other hand, Gribble’s reference to the Russell Tribe as the “Mam-oo” is a clear indication by a person, known to have lived in close proximity to indigenous people, that the Mamu were located on the Russell River. Further, Meston’s vocabulary offers firm support for the Mamu traditional claim to the Russell River and perhaps further north. The March 2001 meeting suggests some degree of acceptance of the Mamu boundary as claimed, as inevitably does the Wanyurr Majay’s failure to speak out against it. The TUMRA map offers further support to the Mamu claim. Dr Weiner’s source identifies Mamu bora grounds north of the northern boundary of the claim area.

139    I also place considerable weight upon the fact that in discussions concerning the boundaries of Mamu and Wanyurr Majay lands, the Eubenangee Swamp and Cooper Point are regularly mentioned, apparently by both Mamu and Wanyurr Majay People. The Mamu have formulated their claim and so may be held to it. However there is evidence which would support a Mamu claim to land even further north than the present northern boundary. Tindale and Dixon both, at times suggested that the Mamu or Dyirbul-speakers’ boundary should be further north.

140    Unlike the Mamu, the Wanyurr Majay have not yet firmly identified their southern boundary, save to claim all land north of the North Johnstone River, at least in the coastal region. This claim seems unsustainable, given the historical association of the Mamu with the North Johnstone and Russell Rivers. Indeed, as I have said, the Wanyurr Majay seem to have, in practice, focussed on a more limited area, south of Eubenangee Swamp, north of Daradgee and east to the coast. Clearly, both Mamu and Wanyurr Majay People claim to have, in relatively recent times, enjoyed access to coastal areas such as Cooper Point and Flying Fish Point, but such enjoyment may say little about rights and interests pursuant to traditional laws and customs. I accept, at least for present purposes, that the Wanyurr Majay People have attended indigenous gatherings at sites such as Eubenangee Swamp, Daradgee and Garradunga. Again, attendance does not necessarily establish traditional ownership. Both groups claim ongoing association with the area.

141    If the claimed northern boundary of the Mamu claim area is accepted, then it may be that the Wanyurr Majay are nonetheless entitled to some traditional rights and interests in what is otherwise Mamu land. However no attempt has been made to identify such rights. Alternatively, if the claimed northern boundary is not accepted, then the Wanyurr Majay People may be the traditional owners of the disputed area. If so, the Mamu may have lesser traditional rights and interests in that area. I am not presently concerned to determine these issues. I must rather decide whether I should make a consent determination upon the basis of the filed proposed determination as amended. I effectively determined a similar question when I refused to join Messrs Ah Kee and Murray as respondents in these proceedings. In effect, I am now asked to adjourn any consent determination to allow further enquiries to be made concerning their claims that the Wanyurr Majay have interests in the disputed area.

THE BOUNDARY DESCRIPTION

142    The map attached to Mr White’s report suggests that the disputed area starts at Mt Chalmynia which is on the boundary of the Mamu claim area. From that point the claimed boundary of the Mamu claim area follows the centre of Canal Creek (identified by Freddy Wonga as the boundary of Wanyurr Majay country) to the southern boundary of Eubenangee Swamp National Park (Eubenangee Swamp being claimed by at least some of the Wanyurr Majay People). In so doing the boundary passes through Waugh’s Pocket, said by at least one informant to be the limit of Wanyurr Majay country. It then follows the southern boundary of the National Park to the south-eastern corner of an identified parcel of land. From there, it follows a compass bearing (71 deg 26 mins 41 secs) for 4,063 metres. This seems to be the straight section travelling west-south-west to east-south-east in the vicinity of Ella Bay National Park. It then follows the boundary of another allotment to a point on the Seymour Range, which point is at the north-eastern corner of yet another allotment. From that point it follows the watershed of the Seymour Range to Cooper Point. In Native Title cases, the use of surveyed subdivision boundaries may reflect extinguishment of Native Title over those allotments by alienation or some other form of extinguishment. It may also reflect an actual or expected arrangement with the State concerning the transfer of State land, including national parks, to a Native Title claim group or other indigenous group according to some process which is independent of the Native Title Act.

143    Canal Creek, the Eubenangee Swamp and Cooper Point have all been recognized by one or more Wanyurr Majay people as being associated with the boundary between their country and that of the Mamu People. By itself, such recognition may not disprove the Wanyurr Majay People’s claim to the disputed area. However it is clear that Wanyurr Majay people do not all share the views expressed by Mr White and Messrs Ah Kee and Murray that the Mamu northern boundary is on the North Johnstone River, or somewhere between that river and the presently claimed boundary. Further, the claims by Messrs Ah Kee and Murray are undermined by Dr Powell’s report and, to some extent by that of Redmond and McCarthy. The March 2001 meeting and the TUMRA map also pose problems which must be overcome.

144    All of this suggests that the Mamu People have a strong claim to the area south of the boundary as presently claimed. Their claim has been in place since 2001. The Wanyurr Majay have not, in public at least, disputed it until very recently. Even now, the basis for any claim to the disputed area is unclear. No Wanyurr Majay claim has been filed or even authorized and there is no suggestion that any authorization is imminent. The Court, the Mamu People and the respondents have all afforded the Wanyurr Majay People more than adequate opportunity to formulate and present their claim. They have not done so. I see no basis for expecting that they will do so at any time in the future. Even if a reason for their failure to advance their claim is lack of resources, there is no basis for expecting that such resources will become available. More importantly, neither the Mamu People’s right to a determination on the merits nor the Court’s process should be displaced by the vague possibility of some future financial or other support.

THE EDWARDS AND McCARTHY FAMILIES

145    To this point I have limited my consideration to the dispute between the Mamu People and the Wanyurr Majay People as to their shared boundary. However the State seems to suggest that doubts about the affiliations of the Edwards family and the McCarthy family, and their respective associations with the Bagirbarra area may weaken the Mamu claim to the disputed area and/or strengthen the Wanyurr Majay claim. However the Mamu People claim the whole of the claim area. The evidence suggests that within the claim area some families have particular interests in specific sub-areas. Although both the Edwards family and the McCarthy family are said to have interests in Bagirbarra, the applicant seems never to have relied on such interests in support of its claim. The present application asserts that there is no affiliated descent group for that area. It identifies the Edwards family as being affiliated with Dyirribarra country, as indicated by Weiner and Heijm in their 2004 report. This country lies between the Johnstone River and Liverpool Creek in the heart of Mamu country. The connection of both the Edwards family and the McCarthy family to Bagirbarra was subsequently discovered by Ms Daniell and seems not to be disputed. It is difficult to see how any doubt can be cast upon the Edwards family’s Mamu status, given the general acceptance of them and their association with Dyirribarra. The association with this area is reinforced by Dr Glass who says that many of Jack Edwards and Annie’s descendents live in Innisfail. According to Dr Glass Annie was born at Goondi. Her descendants say that she was born at Innisfail, but there is no significance in the distinction. Goondi is very close to Innisfail.

146    The State asserts that if Bella is Wanyurr Majay then Polly may also be Wanyurr Majay. The State submits that it may therefore be arguable that if either the Edwards or the McCarthy family holds any interest in Bagirbarra, it may be by virtue of Wanyurr Majay affiliation, thus strengthening the Wanyurr Majay claim to the Bagirbarra and weakening the Mamu claim. In the case of the McCarthy family, this argument assumes that the family derives any interest in Bagirbarra from Bella through her alleged Wanyurr Majay affiliation. However we know that there is at least one other possible source of such interest, namely descent from Nellie Cavoo. As to the Edwards family, the argument assumes either of two possibilities. The first is that as Bagirbarra is Wanyurr Majay territory, the Edwards family’s interest in it justifies an inference that the family has Wanyurr Majay application. Thus Polly must have been Wanyurr Majay. The second is that as Polly was Bella’s sister, and Bella was Wanyurr Majay, Polly was Wanyurr Majay and, therefore the Edwards family is Wanyurr Majay. Thus Bagirbarra is Wanyurr Majay territory. In other words, either the family is Wanyurr Majay because it has an interest in Bagirbarra which is Wanyurr Majay territory, or Bagirbarra is Wanyurr Majay territory because the Edwards family has an interest in it.

147    Both arguments overlook the fact that the Edwards Family is clearly Mamu and the evidence which suggests that Bagirbarra is probably Mamu country, whether or not any Mamu family has a specific interest in the area, and whether or not the Wanyurr Majay have some lesser interest there. Further, as to Bella’s affiliation, I accept that Dr Glass and Dr Mayo consider that on balance she was Wanyurr Majay. I accept also that community and personal records may be unreliable, and that Ms Daniell may have placed too much emphasis upon them. However such records cannot be treated as entirely unreliable simply because they differ from individual recollections.

148    In the judicial process a court must make what it can of fragmentary and contradictory evidence. If a decision is necessary in order to quell a dispute in respect of which the court’s jurisdiction has been invoked, the relevant factual matters must be resolved, having regard to the relevant burden and standard of proof and the evidence. However the court must decide only the matters which are necessary to such resolution. Given that Bella is no longer named as an apical ancestor, there seems to be no real reason for any consideration of her status as Mamu, Wanyurr Majay or otherwise. However the State seems to suggest that doubts about Bella’s status may raise doubts about Polly’s status and, therefore, about that of the Edwards family.

149    I do not understand that any such argument is raised on behalf of the Wanyurr Majay People. They may claim that Bella was Wanyurr Majay, and that some or all of the claim area north of the North Johnstone River is Wanyurr Majay country. However I do not understand them to assert that either the Edwards family or the McCarthy family is Wanyurr Majay. Ms Daniell seems to have been the first to suggest that the McCarthy family might be able to claim Mamu affiliation through descent from Bella rather than from Nellie Cavoo, Ms Daniell having rejected the latter basis for the claim. The proposed inclusion of Bella as a Mamu apical ancestor raised concerns amongst some Wanyurr Majay People. She had been included as an apical ancestor of the Wanyurr Majay clan, as had Annie. However the Wanyurr Majay seem not to have been concerned by Annie’s inclusion as a Mamu apical ancestor. She had been included since the commencement of the proceedings in 2001.

150    According to Weiner and Heijm, the Edwards family was affiliated with the Dyirribarra area, and there was no family associated with the Bagirbarra area. Ms Daniell, however, found that both the Edwards and McCarthy families identified with the Bagirbarra area. The Mamu application, in its amended form, asserts at p 17 that there is no descent group affiliated with Bagirbarra. At the same page, the application seems to imply that there is a descent group affiliated to the Dyirribarra. It seems that it must be the Edwards family. See the application at p 35. In this regard it is important to note the following statement at p 15 of attachment F1 to the application (to which I have already made passing reference):

The native title claim group that is described in the Mamu people application for determination are the members of six major component Mamu descent groups. In the original application for registration of native title, the claim group membership is defined in terms of descent from people a generation antecedent to senior living members, rather than in terms of descent from the apical ancestors of the descent groups. This was done in order to facilitate the inclusion of people who belong to one group or another, but whose genealogical links to apical ancestors are unknown. It reflects the fact that family groups, though constituted by descent from a recognised ancestor, are not constituted strictly through genealogy but are also based on the practical social acknowledgement of membership. The distinction reflects the affiliation of only a small number of individuals in some family groups. The large majority of members of each descent group do have a known genealogical connection to the apical ancestor who “founds” the group.

151    Dr Glass recognizes this point at para 54 of her report where she observes that her experience suggests that Djirbal families:

… did not recall what is known in native title research as “apical ancestors”, who were born circa 1870, let alone the precise genealogical links between certain ancestors, which was sometimes only revealed through [community and personal history] searches.

152    It is clear from Schedules F and M to the application that the claim focuses upon the claim group as described. Once it is understood that the Edwards family is unarguably part of the claim group, the question is whether that claim group can demonstrate the necessary connection with the claim area before the assertion of British sovereignty and thereafter.

153    There is substantial evidentiary support for the Mamu People’s claim to the whole claim area. Although in some of its forms, the Wanyurr Majay claim extends deep into the Mamu claim area, the evidence generally suggests only a much smaller area of interest, located to the south of Eubenangee Swamp, together with some coastal areas. Given the strength of the Mamu claim to the whole area, it seems that the Wanyurr Majay claim must be to some shared or usufructuary interest. However no clear description of the Wanyurr Majay claim has yet been produced, despite the long period of time which has passed since the filing and notification of the Mamu People’s application. Even now, it is not clear that the Wanyurr Majay People are united in their resolution to make a claim. In those circumstances, it is impossible to see any proper basis for delaying further the resolution of the Mamu People’s claim. There is simply no guarantee that there will ever be a claim by the Wanyurr Majay People. Indeed, their conduct to date suggests that there will be no such claim.

154    After so much delay and so much effort, the Mamu People are entitled to a final resolution of their claim. The Wanyurr Majay People have, by the delay to date, forfeited any right to further consideration of any claim which they may have. At some earlier stage in the proceedings, it may well have been appropriate for the State to concern itself with the possible interests of groups which had not chosen to become involved in the proceedings. Inevitably, the time arrived at which a decision had to be made on the available material as to whether there should be a consent determination or a trial. The State made its decision and should now be held to it, at least in the absence of any suggestion that it was misled by the applicant. It must accept that I have refused to allow the joinder of Messrs Murray and Ah Kee, and that there has been no appeal against that decision. The State also must accept that there is no actual or imminent application by the Wanyurr Majay People for a further Native Title determination. The Mamu application must therefore be disposed of on the basis of the proceedings as presently constituted and in accordance with the evidence.

155    In Native Title cases, it may sometimes be difficult to adopt directly the approach identified by the majority of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (at [112]-[113] as follows:

112    A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

113    In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

156    However the underlying principles apply. Those principles are applicable to an application by a non-party to be joined where the application is made at a late stage in the proceedings. They also apply to an application by a party to resile from an agreement to a proposed consent determination pursuant to s 87A of the Native Title Act.

157    I shall proceed to a consent determination pursuant to s 87A and the proposed consent determination which has been filed, subject to such amendments as the parties have agreed. I shall hear submissions as to costs, should there be any application in that regard.

Associate:

Dated:    31 July 2013