Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229
IN THE FEDERAL COURT OF AUSTRALIA |
|
KEVIN ALBURY AND OTHERS ON BEHALF OF THE KARINGBAL PEOPLE #2 Applicant |
|
AND: |
STATE OF QUEENSLAND AND OTHERS Respondent |
DATE OF ORDER: |
|
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application, to the extent it relates to the “overlap area” as identified in the reasons for judgment published today, be dismissed.
2. Order 1 be stayed as follows:
(a) if no notice is given by the State of Queensland under order 3 below, until the time for the giving of that notice has expired; or
(b) if such notice is given by the State of Queensland under order 3 below, until the determination whether any further order should be made is published.
3. Grant leave to the State of Queensland to notify the Court and other parties within 7 days whether it wishes to seek a further order determining that native title does not exist in relation to the overlap area.
4. If the State of Queensland seeks such a determination, the State file and serve a short written submission in support of the making of such a determination with its notice in accordance with order 2 above.
5. Any other party wishing to be heard in respect of that application may file and serve a short written submission in reply within a further 7 days thereafter.
6. Any application for costs shall be made by interlocutory application to be filed within 14 days of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
GENERAL DIVISION |
QUD 216 of 2008 |
BETWEEN: |
BRENDAN WYMAN AND OTHERS ON BEHALF OF THE BIDJARA PEOPLE Applicant |
AND: |
STATE OF QUEENSLAND AND OTHERS Respondent |
JUDGE: |
JAGOT J |
DATE OF ORDER: |
6 december 2013 |
WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The application, to the extent it relates to the “overlap area” as identified in the reasons for judgment published today, be dismissed.
2. Order 1 be stayed as follows:
(a) if no notice is given by the State of Queensland under order 3 below, until the time for the giving of that notice has expired; or
(b) if such notice is given by the State of Queensland under order 3 below, until the determination whether any further order should be made is published.
3. Grant leave to the State of Queensland to notify the Court and other parties within 7 days whether it wishes to seek a further order determining that native title does not exist in relation to the overlap area.
4. If the State of Queensland seeks such a determination, the State file and serve a short written submission in support of the making of such a determination with its notice in accordance with order 2 above.
5. Any other party wishing to be heard in respect of that application may file and serve a short written submission in reply within a further 7 days thereafter.
6. Any application for costs shall be made by interlocutory application to be filed within 14 days of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
GENERAL DIVISION |
QUD 245 of 2011 |
BETWEEN: |
CHARLES STAPLETON AND OTHERS ON BEHALF OF THE BROWN RIVER PEOPLE Applicant |
AND: |
STATE OF QUEENSLAND AND OTHERS Respondent |
JUDGE: |
JAGOT J |
DATE OF ORDER: |
6 December 2013 |
WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The application, to the extent it relates to the “overlap area” as identified in the reasons for judgment published today, be dismissed.
2. Order 1 be stayed as follows:
(a) if no notice is given by the State of Queensland under order 3 below, until the time for the giving of that notice has expired; or
(b) if such notice is given by the State of Queensland under order 3 below, until the determination whether any further order should be made is published.
3. Grant leave to the State of Queensland to notify the Court and other parties within 7 days whether it wishes to seek a further order determining that native title does not exist in relation to the overlap area.
4. If the State of Queensland seeks such a determination, the State file and serve a short written submission in support of the making of such a determination with its notice in accordance with order 2 above.
5. Any other party wishing to be heard in respect of that application may file and serve a short written submission in reply within a further 7 days thereafter.
6. Any application for costs shall be made by interlocutory application to be filed within 14 days of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
GENERAL DIVISION |
QUD 301 of 2012 |
BETWEEN: |
CHARLES STAPLETON AND OTHERS ON BEHALF OF THE BROWN RIVER PEOPLE #2 Applicant |
AND: |
STATE OF QUEENSLAND AND OTHERS Respondent |
JUDGE: |
JAGOT J |
DATE OF ORDER: |
6 december 2013 |
WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The application, to the extent it relates to the “overlap area” as identified in the reasons for judgment published today, be dismissed.
2. Order 1 be stayed as follows:
(a) if no notice is given by the State of Queensland under order 3 below, until the time for the giving of that notice has expired; or
(b) if such notice is given by the State of Queensland under order 3 below, until the determination whether any further order should be made is published.
3. Grant leave to the State of Queensland to notify the Court and other parties within 7 days whether it wishes to seek a further order determining that native title does not exist in relation to the overlap area.
4. If the State of Queensland seeks such a determination, the State file and serve a short written submission in support of the making of such a determination with its notice in accordance with order 2 above.
5. Any other party wishing to be heard in respect of that application may file and serve a short written submission in reply within a further 7 days thereafter.
6. Any application for costs shall be made by interlocutory application to be filed within 14 days of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
GENERAL DIVISION |
QUD 310 of 2012 |
BETWEEN: |
KEVIN ALBURY AND OTHERS ON BEHALF OF THE KARINGBAL PEOPLE #3 Applicant |
AND: |
STATE OF QUEENSLAND AND OTHERS Respondent |
JUDGE: |
JAGOT J |
DATE OF ORDER: |
6 december 2013 |
WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The application, to the extent it relates to the “overlap area” as identified in the reasons for judgment published today, be dismissed.
2. Order 1 be stayed as follows:
(a) if no notice is given by the State of Queensland under order 3 below, until the time for the giving of that notice has expired; or
(b) if such notice is given by the State of Queensland under order 3 below, until the determination whether any further order should be made is published.
3. Grant leave to the State of Queensland to notify the Court and other parties within 7 days whether it wishes to seek a further order determining that native title does not exist in relation to the overlap area.
4. If the State of Queensland seeks such a determination, the State file and serve a short written submission in support of the making of such a determination with its notice in accordance with order 2 above.
5. Any other party wishing to be heard in respect of that application may file and serve a short written submission in reply within a further 7 days thereafter.
6. Any application for costs shall be made by interlocutory application to be filed within 14 days of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
GENERAL DIVISION |
QUD 23 of 2006 QUD 216 of 2008 QUD 245 of 2011 QUD 301 of 2012 QUD 310 of 2012 |
BETWEEN: |
KEVIN ALBURY AND OTHERS ON BEHALF OF THE KARINGBAL PEOPLE #2 First Applicant BRENDAN WYMAN AND OTHERS ON BEHALF OF THE BIDJARA PEOPLE Second Applicant CHARLES STAPLETON AND OTHERS ON BEHALF OF THE BROWN RIVER PEOPLE Third Applicant CHARLES STAPLETON AND OTHERS ON BEHALF OF THE BROWN RIVER PEOPLE #2 Fourth Applicant KEVIN ALBURY AND OTHERS ON BEHALF OF THE KARINGBAL PEOPLE #3 Fifth Applicant
|
AND: |
STATE OF QUEENSLAND Respondent
|
JUDGE: |
JAGOT J |
DATE: |
6 december 2013 |
PLACE: |
BRISBANE |
TABLE OF CONTENTS
REASONS FOR JUDGMENT
1 These reasons for judgment concern the following questions which on 7 May 2013 I ordered be decided separately from all other questions in the proceedings:
But for any question of extinguishment of native title:
(a) does native title exist in relation to any and what land and waters of the overlap area?
(b) in relation to any part of the overlap area where the answer to (a) above is in the affirmative:
(i) who are the persons, or each group of persons, holding the common or group rights comprising the native title?
(ii) what is the nature and extent of the native title rights and interests?
2 The “overlap area” is an area of land where the claims of the Bidjara (QUD 216 of 2008), the Brown River People (QUD 245 of 2011 and QUD 301 of 2011) and the Karingbal (QUD 23 of 2006 and QUD 310 of 2012) overlap. The overlap area includes the Arcadia Valley, Carnarvon Gorge and parts of Carnarvon National Park in Queensland. The area is shown on the map which is annexed.
3 The Bidjara and the Brown River People (or BRP) contend that they hold native title rights and interests in the whole of the overlap area to the exclusion of the other.
4 The BRP identify as Karingbal people but separated themselves from the Karingbal claim when they decided that an apical ancestor included in that claim, Jemima of Albinia, and her descendants were not in fact Karingbal.
5 The descendants of Jemima of Albinia, the active participants in the Karingbal claim, contend that they are Karingbal and, accordingly, enjoy the same native title rights and interests in the whole of the overlap area as claimed by the BRP.
6 The State of Queensland (the State) contends that while it is open on the evidence to find that the persons associated with the overlap area at sovereignty were a group of people who identified as Karingbal and that a group of persons who identified as Bidjara were, traditionally also associated with a part of the overlap area at sovereignty, being Carnarvon Gorge and Carnarvon National Park, an area which was co-held under the traditional normative system with the Karingbal / Garingbal people, the rights and interests now asserted to be held by the descendants of both the Karingbal and Bidjara ancestors in the overlap area are not capable of being recognised as “native title rights and interests” within the meaning of s 223(1) of the Native Title Act 1993 (Cth) (the NTA), because they are not rights and interests possessed under traditional laws and customs acknowledged and observed, substantially uninterrupted, since sovereignty.
7 As explained below, I have concluded that the State’s submissions should be accepted other than that the weight of the evidence supports the inference that at sovereignty Carnarvon Gorge and Carnarvon National Park, within the overlap area, were Bidjara country in which other tribes, including the Karingbal, had rights in respect of both burials and ceremonies.
8 In these reasons for judgment the following references are used.
Breen (1973): Breen, G Bidyara and Gungabula: Grammar and Vocabulary (Linguistic Communications 8). Clayton: Monash University.
Breen (2009): Breen, G 2009 The Biri Dialects and Their Neighbours. Transactions of the Royal Society of South Australia 133:219-256.
Cameron (1904): Cameron, A 1904 On Two Queensland Tribes. Science of Man 7(2):27-29.
Capell (1963): Capell, A 1963 Linguistic Survey of Australia. Canberra: Australian Institute of Aboriginal Studies
Curr (1887): Curr, E (ed) 1887 The Australian Race (Volume III). Melbourne: John Ferrer, Government Printer.
Davidson (1938): Davidson, D 1938 A Preliminary Register of Australian Tribes and Hordes. Proceedings of the American Philosophical Society: Appendix 13; and Davidson, D 1938 An Ethnic Map of Australia. Proceedings of the American Philosophical Society 79:649-679.
Holmer (1983): Holmer, N 1983 Linguistic Survey of South-eastern Queensland (Pacific
Linguistics Series D – No. 54). Canberra: Australian National University.
Rita Huggins and Jackie Huggins (1994): Huggins, R and J Huggins 1994 Auntie Rita. Canberra: Aboriginal Studies Press.
Jefferies (2006): Jefferies, T 2006 The Maric Dialects of Fitzroy River Basin (Part One) (Unpublished Report held by Queensland South Native Title Services, Brisbane).
Bill and Lynette Oates (1970): Oates WJ and L Oates 1970 A Revised Linguistic Survey of Australia, Australian Institute of Aboriginal Studies, Canberra.
Tennant Kelly (1935): Tennant Kelly, C 1935 Tribes on Cherbourg Settlement, Queensland. Oceania 4:461-474.
Terrill (1993): Terrill, A 1993 Biri: A Salvage Study of a Queensland Language (Unpublished BA Honours Thesis). Canberra: Australian National University.
Tindale (1940): Tindale, N 1940 Distribution of Australian Aboriginal Tribes: A field Survey. Transactions of the Royal Society of South Australia 64:140-231.
Tindale (1974): Tindale, N 1974 Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits and Proper Names. Berkeley: University of California Press.
Walsh (1999): Walsh, G 199 Carnarvon and Beyond. Carnarvon Gorge: Takarakka Nowan Kas Publications.
9 I also refer to the Bonzle Digital Atlas of Australia (©2013 Digital Atlas Pty Limited), accessible at http://www.bonzle.com/c/a (Bonzle). With the consent of all parties I used Bonzle to ascertain the relative locations of the places referred to in the evidence.
10 Otherwise, it should be noted that the spelling of various words in Aboriginal languages varies. I have usually adopted the spelling the witness has used except where clarity demands some other spelling.
11 I deal first with the preserved evidence in section 4. This comprises statements and testimony that was taken in 2001 in respect of two claims made by the Bidjara in circumstances where the primary witnesses were elderly and the evidence might otherwise have been lost. Section 5 deals with the evidence of all of the lay witnesses. Section 6 deals with historical material. Section 7 concerns the evidence of the anthropologists and section 8 concerns the archaeologists. Section 9 deals with some other miscellaneous material. After dealing with the statutory provisions and applicable principles in sections 10 and 11, I turn to my overall analysis in the subsequent sections.
12 In 2001, over a period of five days, Ryan J heard evidence in respect of two claims by the Bidjara (Proceeding No QG 6133 of 1998 and No QG 6169 of 1998) known as the Bidjara No 2 and No 4 claims. By consent this evidence was admitted in these proceedings. The evidence consists of statements of Reginald (Rusty) Fraser, often referred to as Uncle Rusty, Robert (Bob) Mailman, Elizabeth (Betty) Charlotte Saylor, and Ronald Thomas (Ritchie) Fraser, their oral evidence and certain maps. Exhibit Q1, a map marked up during Uncle Rusty’s oral evidence, cannot now be located. To assist in understanding these reasons for judgment I refer to these witnesses by the names most often used to identify them in other evidence. No disrespect is intended by doing so.
13 To the extent that it was submitted for the Bidjara that this evidence should be understood to have been limited to the areas to which those proceedings related, the submission should be rejected. The purpose of the taking of the evidence in 2001 was to preserve the evidence of Bidjara elders so that their evidence about Bidjara country (that is, all Bidjara country) and Bidjara laws and customs would be available and able to be used in all claims by the Bidjara for native title rights and interests.
14 Uncle Rusty’s evidence is important for many reasons. All of the Bidjara people who gave evidence during the hearing in 2013 acknowledged that Uncle Rusty was a highly respected and knowledgeable elder. They all accepted that Uncle Rusty knew Bidjara country. Keelen Mailman and Patricia Fraser, in particular, gave first-hand evidence about Uncle Rusty’s involvement in drawing up the boundaries of the Bidjara No 3 claim which extends in an easterly direction to Rolleston and beyond Injune into the Expedition Ranges. Keelen Mailman and Patricia Fraser also gave evidence that Uncle Rusty was very upset that he had to reduce the area of land claimed to be Bidjara country, apparently by (then) legal representatives. The thrust of this evidence was that Uncle Rusty should be understood to have been saying that Bidjara country extended east at least to Rolleston and, indeed, east again to the Expedition Ranges, thereby encompassing (and extending beyond) the whole of the overlap area.
15 The best evidence about Uncle Rusty’s identification of Bidjara country is Uncle Rusty’s own words. Uncle Rusty’s own words are available through his written statement and, more importantly, his oral evidence. Uncle Rusty’s oral evidence is a better source of information than his written statement for a number of reasons. Although the statement reads as it might be imagined Uncle Rusty would speak and thus shows little sign of drafting by lawyers, it is still a statement in writing rather than Uncle Rusty’s own direct speech. Keelen Mailman read the statement to Uncle Rusty (he could not read or write and at the time he lived at Mount Tabor which Keelen Mailman manages) and he swore it was true, but the fact remains that the words are written rather than spoken. This is not to say Uncle Rusty’s statement is not important. It is important. But if there is any inconsistency between the written statement and Uncle Rusty’s oral evidence, the oral evidence should generally be seen as more reliable.
16 Uncle Rusty’s oral evidence is highly reliable for a number of reasons. Uncle Rusty was giving the evidence on oath. He gave the evidence over five days on various locations throughout country he identified as Bidjara country. When he gave the evidence he regarded himself as being on Bidjara country. He was rarely interrupted giving the evidence. He had a full opportunity to speak and, it appears, took that opportunity. His evidence about Bidjara country is detailed and consistent. Although it might seem repetitive to examine the parts of his evidence which appear to deal with the same topic and unnecessary to the extent that he deals with land outside the overlap area, it is the very consistency of his evidence that lends it a high degree of reliability. I set out the evidence below so the detail and consistency of description should be readily apparent. It should also be apparent from these extracts that Uncle Rusty was describing all Bidjara country.
17 In his written statement Uncle Rusty described Bidjara country as follows:
Bidjara country starts around Beechal Creek and then goes to Adavale and then to Wyandra. It runs from Wyandra to Charleville, from Charleville to Augathella, Augathella up to Boggarella, and from Boggarella right up to Babbiloora, and from Babbiloora to Carnarvon Ranges – and that’s all Bidjara Country. And it runs right across to Blackall and towards Barcaldine. That’s Bidjara country. That’s where Black’s Palace is – on the other side of Aramac.
….
So Bidjara go from near Roma to Injune, from Injune to the turn off to the Carnarvon National Park. A different tribe own the country at Roma, going from Roma, that’s as far as we go then. Bidjara go into – go off the main road there – and go into the National Park, Carnarvon National Park, that’s Bidjara Land. Carnarvon National Park is Bidjara Land. We go from there then across to Mount Moffat, and then we go from Mount Moffat up to Lethbridge. That’s all Bidjara country. And you can go from the Arch, not far to the Lethbridge Pocket, that’s all Bidjara Country, that’s all on Mount Moffat country. And, coming back this way, - Mount Tabor is Bidjara, Babbiloora and Boggarella, all Bidjara. Babbiloora, Boggarella – all Bidjara country, right up to Carnarvon Ranges, that’s all Bidjara Country. That’s the lot.
…
I get upset about Carnarvon Gorge. It’s a special place. White people are walking all over it. I was there not long ago and a white person asked me what I was doing there, at Carnarvon Gorge. I said “what do you mean, this is my country”.
18 In his oral evidence Uncle Rusty returned to the extent of Bidjara country many times.
19 At Charleville, Uncle Rusty said:
That Mount Tabor Station, is that your country?---Yeah, belong to - yeah, our country. Yeah, that's Bidjara country, yeah, right up to Carnarvon.
…
Have you sung those songs at other places on your country?---Yeah, I sung - oh, yeah, sing Sydney. We sing in Sydney and everywhere with it. Go right down to what-d'ye-call-im - right up Blackall and right up to Longreach and all around there.
We dance all around Longreach and everywhere, around Barcaldine.
What about - - - ?---As far as the Bidjara country run through there, far as - as far as Barcaldine I think, Aramac.
What about Carnarvon Gorge? Do you sing those songs there?---Yeah, we sung there for four nights there.
…
But what about if an Aboriginal mob from New South Wales, right, wanted to come and do their songs and their dances in Carnarvon Gorge?---What you mean? What, they come into our country to dance?
Yes?---They can't do it, though.
…
What about - like, is Roma on your country?---No. Roma's in a different country.
Different country?---Yeah.
…
Yeah, that all Bidjara country runs right down from here, right down to Wyandra and across to Beechal Creek from there. Go right up to Mitchell. This is all Bidjara country, see…
Because I had to walk it. I walked it from - from Mitchell right to Beechal Creek, right past what-d'ye-call-im, past - we walked there. We had to watch our country, see. They can't go over the tribal ground, see. He want to go over the tribal ground. Bloke said, "We going to go" - "No," I said, "I'll ring the government people." They come out. "No," they say, "can't go over. That's a tribal ground, see. You can't go over it." "You can't go over the tribal ground," he says.
…
We're on Bidjara country. This is Bidjara country here. It run right past Adavale, right up - right up to what-d'ye-call-im, right up to - runs right up to Barcaldine, see. That's our boundary there. Finish then with our boundary. I don't know who owns that next lot then from there on. I don't know who owns that country then.
20 At a place called One Mile Gully near Augathella Uncle Rusty said:
This is our country. This is Bidjara country, you see.
21 In another location close to Augathella Uncle Rusty said:
…Yeah, I was working on Mount Playfair then. That's where that Water Snake is, on Mount Playfair.
MR MAURICE: Yes. Is that Bidjara country?
RUSTY FRASER: Eh?
MR MAURICE: Is that Bidjara country?
RUSTY FRASER: Oh, yeah, Bidjara country, yeah. Bidjara country run right back - right back to - right back to what-d'ye-call-im, I suppose, right back to Springsure.
…
This here land, it belong to us, belong to Bidjara land this is, yeah…
We can put a paddock up here. Well, they can't - no one can come in here, see, in this land, because it's Bidjara land, see. It belong to the Bidjara. The camps, old camps, see, they old Bidjara camps, see. They can't come into old Bidjara camps, see.
…
RUSTY FRASER: I worked on Chesterton, and I worked on Mount Tabor, and worked on Attica. I work all that country years ago, yeah.
…
MR MAURICE: Is that all Bidjara country?
RUSTY FRASER: Bidjara country, yeah, all Bidjara country. Bidjara country runs right up to Carnarvon.
22 At Caroline Crossing, to the north-east of Augathella, Uncle Rusty said:
MR MAURICE: Yes. Whose country is this?
RUSTY FRASER: It's Bidjara country. Belong to me.
23 On Mount Tabor Station, which is also to the north-east of Augathella, Uncle Rusty said:
This is the one we call the Rock City, this one here, the Rock City. That's where - the Aboriginals around here years ago, I suppose, when they travel all round this country around here. That's how they got the marks there, see. See all the marks there? They been put there thousand and thousands of years ago, I suppose. Those marks been put there by the Aboriginals. Bidjara mob, I suppose, been around here, see, years ago. All the Bidjara mob been around. They do all them what-d'ye-call-im there, see, through there, and marks there, all the marks.
All this country belong to the Bidjara, see. Bidjara country all this here. Bidjara land, see, because the olden time told me - the olden time Murris told me, old George Muthers and all those, this all country belong to us, see, belong to the Bidjara mob, see. No other people allowed to come up in this country, you know, what-d'ye-call-im. This is Bidjara country, see. But a lot of people come here, the tourists.
…
MR MAURICE: Who should look after this place?
RUSTY FRASER: Well, me, I suppose. I'm the eldest Bidjara, eh, so I'll have to look after it, I suppose, all the country and everything. I've been looking after it all the time. Me and Floyd [Floyd Robinson] been looking after it, all up in Carnarvon, up in Carnarvon National Park, Carnarvon National Park and all this.
…
Up at Carnarvon National Park they done it too, and I went for them because they had no - the bloke said to me, "What are you doing up here?" I said, "This is my country," I said. "This is Bidjara country." I said, "What you white fellas doing here," I said. "You shouldn't be here." I said, "This belong to Bidjara. This is Bidjara country." The Bidjara should be looking after it, eh. The Bidjara mob should be looking after it, not the other blokes looking after it.
…
I walked it right from Mitchell right up to - to Wyandra and out to - out to our boundary, see, out to Beechal Creek, our boundary there. I walked it, see.
24 On Babbiloora Station, which is also to the north-east of Augathella, heading towards the Carnarvon Ranges, Uncle Rusty said:
MR MAURICE: Whose country is this one?
RUSTY FRASER: This is Bidjara country.
MR MAURICE: Right.
RUSTY FRASER: Our country, right - right up to Carnarvon, right over to Springsure, our country, yeah.
…
RUSTY FRASER: This on Babbiloora, yeah. Babbiloora all Bidjara country, see, right through, right up to - Babbiloora and right over to what-d'ye-call-him, then it runs right across then, right across to - up to Blackall and around that way, Longreach and all around that way, you know.
…
And Barcaldine.
…
RUSTY FRASER: Mount Moffatt, see. You got to go past Dooloogarah and then you go past the arch then, big arch there, big mountain like that. They meet together like that. And not far from there to go up to the Lethbridge Pocket then. They wanted to take the country off us but they couldn't take it off us because it was Bidjara country, see.
…
See, "Lethbridge Pocket all our country," I said. Not far from Carnarvon, see, up there.
…
That's the Maranoa River, that one there, Maranoa River.
MR MAURICE: Who owns that river?
RUSTY FRASER: Eh?
MR MAURICE: Who owns that river?
RUSTY FRASER: Well, he supposed to be all belongs to Bidjara - all supposed to belong to Bidjara.
MR MAURICE: Yes.
RUSTY FRASER: But those what-d'ye-call-him, they claiming it. The Gunggari's claiming it, but they can't - they can't take it because what-d'ye-call-him. If it come to law, we can take the country off them, because we own - that's our country, see.
25 On Carnarvon Station, which is also to the north-east of Augathella heading into the Carnarvon Ranges, Uncle Rusty said:
Well, Bidjara mob. Bidjara mob owns the - owns the land. They own the land around here. That's Bidjara land here, see. It goes right across to Carnarvon - right across to what-d'ye-call-him - right over to - right over to what-d'ye-call-him, and out this way. You can go up this way too, across to Springsure. Right over to Springsure, that's Bidjara country all the way, see.
MR MAURICE: Yes. Are we in the Carnarvons now? These mountains here, are these the Carnarvons?
RUSTY FRASER: Carnarvon Ranges, yeah. This is Carnarvon - Carnarvon Ranges, all them mountain you see around. See them all?
26 This evidence continued as follows:
RUSTY FRASER: Mount Lambert, yeah. That one there. See that mountain there, yeah. That's Mount Lambert that one, yeah.
MR MAURICE: Yes. Has it got a Murri name?
RUSTY FRASER: Eh?
MR MAURICE: Murri name?
RUSTY FRASER: Yeah, that's the name of it, Mount Lambert, but Murri call - Murri got a name for it too. They call it - - -
BOB MAILMAN: Murrubu.
RUSTY FRASER: Eh?
BOB MAILMAN: Murrubu.
RUSTY FRASER: Murrubu. Murrubu mountain, see. Murrubu.
MR MAURICE: Say that one again?
RUSTY FRASER: Murrubu mountain they call it.
MR MAURICE: Murrubu?
RUSTY FRASER: Yeah, Murrubu, yeah, the Murri call this.
27 At Torres Park, to the east of Babbiloora and to the north of Boggarella (which is between Augathella and Babbiloora), Uncle Rusty said:
MR MAURICE: This country here. Who belongs to this?
RUSTY FRASER: Belong to Bidjara country. Belong to the Bidjaras. Go right around up to Carnarvon, right over to Springsure. That's all Bidjara country.
28 At Carnarvon National Park, Uncle Rusty said:
Well, this is Bidjara country.
…
Well, they had a look at the country, I suppose, Bidjara country.
…
[About the sewage problem at Takkarakka, just outside Carnarvon Gorge National Park] Destroying the Bidjara land here, see. Destroying the Bidjara land. And a lot of these tourist people come here and they go out here, out to caves out here. See, lot of caves out here, all them places where all these tourist go, and they writing their names. They're destroying that Bidjara land, eh, doing them sort of things. We went down to hold a court about that too, trying to stop them, you know, from doing them sort of things.
…
Mitchell is Bidjara country too, see. When we walked there, we walked it from there right down to Wyandra and across to - across to Beechal Creek, see. That's our boundary down there.
…
MR MAURICE: Which way is Springsure from here? Is that out towards the east?
RUSTY FRASER: No. Springsure is back here.
MR MAURICE: Back here?
RUSTY FRASER: You know where we come in the turn-off?
MR MAURICE: Yeah, off the main road.
RUSTY FRASER: Well, you go across and you come to what-d'ye-call-im. Then Springsure is further on then. Little town come there and then you go to Springsure and you can go to what-d'ye-call-im, this other way. You can go to Rolleston. You go from Rolleston, you can go into Springsure, and you can go back that way, and there's a turn-off into Woorabinda, and you can go straight on, you know, straight on, go straight on then into Rockhampton.
MR MAURICE: Right.
RUSTY FRASER: Go straight up to Rockhampton then.
MR MAURICE: This country out here going out towards Springsure, right - - -
RUSTY FRASER: Eh?
MR MAURICE: This country out here going out towards Springsure: whose country is that?
RUSTY FRASER: That's Bidjara country right to Springsure.
MR MAURICE: Is it?
RUSTY FRASER: All Bidjara country, yeah. This here - they call this Carnarvon Creek here. Well, he runs down, then runs down, and when he gets further down there they call it the what-d'ye-call-im. They call it what-d'ye-call-im then. It goes into Burnett then, Burnett country, see, up into what-d'ye-call-im. I don't know who own that country up that way then, see.
…
And he said to me - this fella said, "What are you doing up here?" I said, "This is my country here," I said. "I come up to have a look at my country here," I said. "You white fellas," I said, "shouldn't be in the country," I said. "This is our country," I said, "Bidjara country this," I said. John said - John Long said, "Get into them, Rusty," he said. "Uncle," he said, "get into them." He had to put me out, see, because I just come up to have a look around up here. He never said no more. He went inside then. He went inside.
MR MAURICE: You've got a right to be on your country, have you?
RUSTY FRASER: Oh, yeah, course I have. Must have a right. It's my country, eh. Got to look after your country.
…
MR MAURICE: Do you like coming back here?
RUSTY FRASER: Yeah, like coming back here, yeah. Well, it's my country, eh. It's my country, so I like coming back to it. Yeah, I like coming back here.
…
MS BOWSKILL: So, Mr Fraser, if you could walk us around the boundaries of what you call the Bidjara country?---Well, the boundaries - well, the boundary starts from - our boundary, the Bidjara boundary, starts from Wyandra to Charleville, Charleville to Augathella, and Augathella up to Babbiloora, and Babbiloora to - Boggarella to Babbiloora, and Babbiloora to Carnarvon.
HIS HONOUR: Just slow down a bit, Mr Fraser. It's a bit hard for everyone to keep up with this. I think we got up to Babbiloora.
MS BOWSKILL: Where next from Babbiloora?---Babbiloora to Carnarvon here.
And then going to the - where does it go to the east?---Carnarvon to - then it runs to Springsure. That's the last Bidjara country.
What about south from Springsure?---What's that?
Does the boundary go - where does it go south from Springsure?---What you say?
What you call Bidjara country, where's the next point in the boundary which is south of Springsure?---And it runs right across from - it runs right across from Springsure right across then to what-d'ye-call-im there - right across to - right across to Barcaldine. That's other side of Blackall, Barcaldine is.
All right. And does that describe the whole of the boundary?---Yeah.
And that area includes Mount Tabor?---Mount Tabor, yes. It's Bidjara country too, yes. It's just down from Carnarvon, what-d'ye-call-im is - Mount Tabor. We own Mount Tabor. That's our country. We own it too. We own the station too. It belongs to the Bidjara traditional owners, see.
Does the boundary include Mitchell, Mr Fraser?---What's that?
Does the boundary include Mitchell?---Barngo Lagoon?
Mitchell. Does the boundary include - - -?---Mitchell, yeah. Yeah, Mitchell is Bidjara country too, yeah. It belong to Bidjara too. They reckon it's not though, but it is though. It's Bidjara country, see. It's where I walked the pipeline, from old Amby, see, old Amby. There's a siding there, railway siding, and I walked it from there right through to - right to Wyandra and across to Beechal Creek. That's our boundary, Beechal Creek. That's our boundary that side then, see.
And Injune: is that part of the boundary?---Yeah.
Injune: is that part of the boundary of what you call Bidjara?---Beechal Creek is, yeah. That's the last boundary. We walked it right to there and then what-d'ye-call-im took it on then. Cunnamulla mob took it on and what-d'ye-call-im mob then. Some more mob come in then. I don't know where they went to, but Cunnamulla, see.
…
Could you tell the court why Mount Tabor is special to you? Mount Tabor - could you tell me why Mount Tabor is special to you?---Yeah. Well, it's Bidjara country, see, all Bidjara country right up to Carnarvon. Mount Tabor is Bidjara country.
…
And how would the Gungabulla feel about Mount Tabor? Is Mount Tabor important?---See, they can't take Mount Tabor because it belong to Bidjara, but they can take it too, I suppose. They got lot to do with it too, see. All the same, see. They're the same, same mob.
…
And did they [your grandparents] live on Bidjara country?---Oh, yeah. Used to work on Babbiloora when he was - when he worked there at Babbiloora he was only about 14 or 15. Worked on Carnarvon, see, Carnarvon Station.
…
Your mother, Ada: was her mother Bidjara?---Yeah. She born there. She Bidjara, yes. She Bidjara too.
And did she live on Bidjara country?---Yeah, lived on Bidjara - that's Bidjara country, that Yarrawonga. That's where they reared up there, Yarrawonga Station.
[About other people entering Mount Tabor] Got to ask me. I'm the boss of the country, see. I'm a Bidjara, see. I'm the boss of the country.
…
Did anyone ever tell you that you couldn't be on Mount Tabor?---No, no one can't tell me because I own they country. They can't hunt me off the country. Can't hunt you off your country, can they. If it's your country, well, they can't hunt you off it, eh.
…
You were born in Augathella?---I was born in 1921, yeah, in Augathella, yeah, on Bidjara country. That's where I born.
…
Mr Fraser, when did you first come to Carnarvon Gorge, this place? When did you first come here?---I don't know. When I was born. That's our country. That's our country there, Bidjara country, see. All Bidjara country. That's all Bidjara country here too.
…
When you used to come to Carnarvon Gorge, this area around here, it was when you were working?---Yeah. Used to belong to Carnarvon, all the country round here too. It's all Bidjara country, see.
…
How do you know where Bidjara country is?---Well, I know. You start from Wyandra, runs right up to - Wyandra to - Wyandra to Charleville, Charleville to Augathella, Augathella to - Augathella up to Carnarvon then, Carnarvon, Babbiloora and Boggarella and all them places, see, and it runs right over to - far as - past what-d'ye-call-im - runs out then far as other side of Blackall - what's that place there now - Barcaldine. I think that's as far as it goes, Barcaldine. Hey, Robert, it goes far as Barcaldine, doesn't it, Bidjara country? It goes far as Barcaldine.
…
We're here on Carnarvon Gorge?---Yeah.
This Carnarvon area, the Carnarvon Gorge?---Mm.
It was a meeting place for a number of tribal groups?---Eh?
It was a meeting place, Carnarvon Gorge?---Yeah.
Different tribes used to come here?---Yeah. Only one tribe come. No different tribes come.
And what was that tribe that came here?---Well, the Bidjara mob, see. Only the Bidjara mob can come there, see.
So no other tribes were in Carnarvon Gorge?---I don't know no other tribe. Only the Bidjara tribe. That's all. That's all I know.
The Karinbal tribe?---Eh?
The Karinbal tribe: weren't they in Carnarvon?---No.
What about the Nuri?---No.
Or the Kairi?---No, they don't come up there. They wouldn't be game enough to come up there anyway. They wouldn't come up there.
… So if I'm in Carnarvon Gorge, no other Aboriginal peoples apart from Bidjara can come into Carnarvon?---No.
Wasn't there other Aboriginal tribes in Carnarvon?---No.
…
Mr Fraser, there are markings in the caves here that aren't anywhere else in Bidjara country. Those markings were put by other Aboriginal tribes?---No, put there by Bidjara mob, I suppose. Bidjara mob put it in there, those marks. This country belong to Bidjara, see.
…
MR O'BRIEN: Mr Fraser, you talk about Springsure being Bidjara country?---Yeah, Springsure, yeah.
It's Kairi country, isn't it?---No, Bidjara country. Belong to Bidjara, Bidjara and Gungabulla. Gungabulla and Bidjara both own it, own that country.
You talk about Barcaldine. That's Wadjabanji country, isn't it?---No, no.
Blackall is also in Wadjabanji country?---Who reckon that?
Well - - -?---You reckon it? Well, you make a mistake then. It belong to Bidjara country.
I'm asking for what you think, Mr Fraser?---Well, it's Bidjara country. I'm telling you. It's Bidjara country. The Gunggari wanted to take Mount Moffatt. "You can't take Mount Moffatt. That's our country," I said, "Bidjara country." I said, "You can't take that country. If you carry on," I said, "then I'll take you to court." Soon as I mentioned the court, "No," they said, "you take the country. You own it." I said, "We own it all right," I said.
Mount Moffatt: it's Nuri country, isn't it?---No, it belongs to the what-d'ye-call-im - Bidjara country.
And where we are here in Carnarvon, that's Karinbal country.
MR MAURICE: I don't think he answered that, your Honour. He shook his head.
MR O'BRIEN: I was about to say - -
MR O'BRIEN: I was about to say - - -?---Who that tribe that owns that then you reckon?
Karinbal. Karinbal own Carnarvon Gorge, don't they? Mr Fraser, could you just indicate yes or no because - - -
HIS HONOUR: You have to say yes or no so we can record it?---No, they don't own it. It's Bidjara country. They don't own the country.
MR O'BRIEN: Augathella, Mr Fraser: that's Kunja country, isn't it?---No, Bidjara country.
And Charleville: that's also Kunja country?---No. I don't know this Kunja country. Kunja? Kunja? Who them people? I never ever heard of them. That's what they say in that paper there. That's only just say it on the paper, see, in that what-d'ye-call-im. I never heard the name before.
You've never come across those other tribes?---No, I never. They must have been here years and years ago. I know the Bidjara. That's all I know. Bidjara own the country. Bidjara own this country on Carnarvon and right down to Wyandra. They own that country. That Bidjara country, see.
…
Where is Gungabulla country?---Eh?
Where is Gungabulla country?---Well, Springsure, but they're the same. They talk same lingo as we talking now, see. We both talk the lingo. They talk the same - sing the same songs and everything.
They're a different tribe, though?---No, they're the same tribe. Gungabulla and Bidjara the same.
Gungabulla doesn't have - does Gungabulla have its own country?---Gungabulla the name of the tribe.
Do they have their own country apart from Bidjara?---No.
The Gungabulla tribe: where's their land?---Well, they must be here with us. Same mob as us, Gungabulla, Gungabulla and Bidjara.
…
These white fellas here shouldn't be here, see, up here, up at the what-d'ye-call-im up here. There shouldn't be any white fella working at all. Should be black people working, not white people work. This is Bidjara land, see.
…
Are there any other places that are significant to Bidjara people - - - ?---Yeah.
…
Only round Carnarvon here, round Carnarvon, and all round our country. That's all. There's no other places around.
…
Only around Carnarvon here, up here at Carnarvon, then you go down to what-d'ye-call-im, down to Mount Tabor and around there. That's the only places where you see the sites, all the Aboriginal sites. A lot of places in Mount Tabor there, a lot of caves there with a lot of what-d'ye-call-im, old camps and everything around there, you know. You see the nardoo stones and all that where they grind the what-d'ye-call-im on.
…
Talking about those boundaries of Bidjara country, right?---Yeah.
You've told us where that country is?---Yeah, I told you, yeah.
This lady over here, she asked you about Injune, right?---Yeah.
She asked you about Injune, whether that was in Bidjara country?---Injune?
Injune?---No, Injune not Bidjara country, no.
Not Bidjara country?---No, not Bidjara country, no. Bidjara country this side of that.
Just this side of it?---Yeah. Yeah just see that in your - you remember that written statement we did for you, that written statement?---Yeah, yeah.
It says there that:
Bidjara go from near Roma to Injune and from Injune - - -
?---Yeah, near Roma, yeah.
Continuing:
...to Injune, from Injune to the turn-off to the Carnarvon National Park.
?---Yeah.
But they don't actually go quite to Injune; is that right?---No. Out this side of Injune. I don't know how far out.
This side of Injune?---Good way out of Injune before you get to Bidjara country.
Let me get that clear. But definitely, definitely, Injune is not in Bidjara country?---No.
Okay?---No, not Bidjara county, not Injune is, no. Dundandanji [Mandandanji] or something name of - own that country.
…
And that snake: now he's at Mount Playfair?---He's over - yeah, over Mitchell Camp. We've got to go over there yet to have a look at that one, you know. Good hole that one, Mitchell Camp. Big hole there.
And that's on Bidjara country?---Yeah, Mitchell Camp, yeah. Big hole there. Not far from down there to go to Cungelella then. That's Mantuan Downs country then.
Is that Bidjara?---No, no - I don't know. Yeah, it would be Bidjara country.
…
Jimmy Lawton and Ted Lawton and Joe Lawton, right: are they Gungabulla?---Yeah, they all Gungabulla, all them Lawtons.
Gungabulla?---Yeah.
All those Lawtons Gungabulla?---But don't make no difference. They're Bidjara just the same. Well, Gungabulla and Bidjara the same, see.
I hear what you say?---They talk the same lingo and sing the same songs.
…
Is Mount Tabor their country?---No. They can't - they can't take Mount Tabor because Mount Tabor belongs to the - belong to us, see, belong to Bidjara.
Yes. What about - - - ?---The Gungabulla can't take it, see.
Right?---Can't take it, can't take the Bidjara country, see. Might be Gungabulla, but they can't take the Bidjara country, see.
What about Boggarella and Babbiloora?---No.
No?---They're all Bidjara country, see.
29 Burnett, which Uncle Rusty referred to, is best understood as a reference to the Burnett River. The Burnett River is many hundreds of kilometres to the east of the overlap area. Locations which Uncle Rusty said were not Bidjara country, such as Injune and Roma, are situated between the overlap area and the Burnett River. When specifically asked about Injune, it will be recalled that Uncle Rusty said “No, Injune not Bidjara country, no…[Not Bidjara country?]---No, not Bidjara country, no. Bidjara country this side of that”. It is obvious that by “this side of that” Uncle Rusty meant that Bidjara country was to the west of Injune. When asked about Roma, Uncle Rusty said “[a] different tribe own the country at Roma, going from Roma, that’s as far as we go then”. Together, this evidence clearly discloses that that Uncle Rusty was setting a very firm boundary for the eastern extent of Bidjara country. Bidjara country did not extend as far east as Injune or Roma but it did include Springsure and Carnarvon Gorge and Carnarvon National Park. The notion that Uncle Rusty was claiming the land between Carnarvon Creek and the Burnett River as Bidjara country is plainly untenable. It is also apparent that, when located in Carnarvon Gorge, Springsure (which Uncle Rusty was claiming to be Bidjara country) is to the north and, if anything, slightly west of the Gorge. The overlap area, in contrast, is to the east of the Gorge and to the east of the eastern-most extent of land Uncle Rusty described as Bidjara country.
30 The other witnesses who gave evidence in 2001 said a few things about Bidjara country but not in anything like the detail Uncle Rusty was able to give.
31 At Carnarvon National Park, Bob Mailman said:
I was only small, but they used to talk a lot about this country, and, well, Bidjara country, and many of the bushrangers, like when the Kenniffs were around here and duffing and all that, stealing cattle.
…
You say, Mr Mailman, that Mount Tabor and Carnarvon are part of Bidjara country. What do you understand to be Bidjara country? What are the boundaries of Bidjara country?---Now, well, that's where you got me, see. All I know is - I don't know where the boundary is, you know - well, the stones or the, you know, the fence line or the line, you might say. I don't know where they are, but I know it covers a fair bit of ground, from what I'm told, eh.
The Carnarvon Gorge - - - ?---Definitely Bidjara country.
It wasn't the Karinbal country?---Who?
Karinbal, Karinbal---Never heard of them.
Did you ever see any other Aboriginal tribes when you came - - - ?---No.
Any other Aboriginal people when you'd come to Carnarvon Gorge?---No. Well, it's only a few months ago - yeah, only a few months ago since I first come here.
So the first time you came here was a couple of months ago?---Yeah.
…
And Mount Moffatt: it's in Nuri country, isn't it? It's not Bidjara country?---Oh, I don't know. Couldn't tell you, see.
Right. Augathella: that's Kunja country, isn't it, Kunja country, Augathella?---No, Bidjara.
Bidjara country?---Yes.
What about Blackall? Blackall is Wadjabanji country, isn't it?---Well, that's what I say. I don't know the boundary fences, see, the boundary lines or anything.
Springsure: Springsure is in Kairi country, isn't it?---Well, I'm told it's in Bidjara country, eh. Could be. I don't know, see, as I said. Like black and white. There's a lot of half-castes, you know. The less you knew about the black fella law and country, like, the better.
32 This oral evidence must be weighed up when considering the statement that Mr Mailman provided in March 2001, which forms part of the preserved evidence. Mr Mailman said that said he was descended from Lucy Long and Charles Mailman on his father’s side and Nellie Combo and Bill Geebung on his mother’s side. He said they were all born and lived in Bidjara country. According to the records, Nellie Combo was born near Augathella and William Geebung was born near Springsure at Orion Downs and they lived mostly near Babbiloora Station, whereas Lucy Long was associated with the Upper Warrego area. These areas are all west of the overlap area on land which Uncle Rusty identified as Bidjara country.
33 Mr Mailman also said the largest artwork he had done was a painting which depicts the Mandagharra (the rainbow serpent) and its journey across Bidjara country. The journey starts at the bottom right hand corner representing the “16 mile and Carnarvon and the Pump hole near the head of the Warrego”. The head of the Warrego is in the Great Dividing Range (which I infer Mr Mailman referred to as “Carnarvon”), well to the west of Carnarvon Gorge and the overlap area. At the top left hand corner is the “water well at the Babbiloora mission”. Babbiloora is yet further to the west again. In the bottom left hand corner is a representation of the Barngo Lagoon. Barngo is located between Babbiloora and the head of the Warrego (that is, north-east of Babbiloora but west of the head of the Warrego). Across the middle of the canvas is the Mandagharra.
34 Mr Mailman said that there is a Bidjara legend about the Mandagharra that it had lived in Barngo lagoon but left it “when all of the blackfellas were killed, died, or moved off their land …in 1944 or 1945”. The water then all dried up in the lagoon. In the top right hand corner of the canvas is a representation of Lake Nuga Nuga near Springsure. This “is where the Mandagharra went and continues to watch the Bidjara country”. There are “small white dots around the painting representing the slithery movement of Mandagharra away from the area”. “Mandagharra’s tracks across the earth heading northeast away from Barngo Lagoon in the direction of Springsure can be seen in the landscape today”. There are also small black dots on the painting that represent the footprints of the Bidjara people.
35 Contrary to the submission that was put, I do not see this description as suggesting that Lake Nuga Nuga is part of Bidjara country. In fact, I consider that Mr Mailman was explaining that Lake Nuga Nuga was not Bidjara country. As I understand the legend he is describing, it is that the Mandagharra lived in Barngo Lagoon which is Bidjara country until the Aboriginal people were driven off their land. The Mandagharra then left Barngo Lagoon which had dried up and slithered to the north-east to Lake Nuga Nuga so the Mandagharra could continue to look over Bidjara country (that is, the country to the west of Lake Nuga Nuga). This is consistent with not only Mr Mailman’s description of Bidjara country (Babbiloora, Barngo Lagoon, the head of the Warrego) but Uncle Rusty’s description of Bidjara country running from the west up to but no further than the Carnarvons.
36 At Carnarvon National Park, Ritchie Fraser said:
MR MAURICE: So she told you she came over here?
RICHIE FRASER: Oh, yes, they used to come over here, apparently quite often, from the stories that she used to tell me. I can't remember the stories, but she used to always - I can remember stories that she used to tell us about Carnarvon Gorge.
MR MAURICE: Right. And did she say whose country it was?
RICHIE FRASER: Bidjara, all Bidjara country.
MR MAURICE: And how does it feel, coming here, for you?
RICHIE FRASER: Fantastic.
Mr Fraser, can you tell us the boundaries of Bidjara Station - of Bidjara property?---No, I cannot do that. I cannot do that.
Did you - - - ?---I know it goes from the Carnarvon homestead down to Augathella, back to Mitchell, Springsure, and I didn't think it got quite to as far as Barky.
That's Barcaldine, is it?---Barcaldine I meant, yeah, Barcaldine.
Yes, sorry?---I didn't think it got quite that far, but apparently it does, I hear, and then back up through Blackall and back to Tambo, that way.
Did your father tell you where Bidjara country was?---Not really, no. I can't remember. He could have done.
So you're not really sure of the areas that it covers?---No, only just what I told you then. I don't know what these other things they have drawn up since then. They've drawn maps everywhere, I think.
This Carnarvon Gorge: is it Karinbal country? Do you know whether it's - well, is it Karinbal country?---?---Who's Karinbal?
Karinbal is another tribe that was in Carnarvon Gorge?---No, no, never heard of them.
Springsure?---Well, I thought Springsure was in it but apparently it doesn't quite - it doesn't come in. I don't know. Could be wrong. As I say, when I first looked at it it was more or less straight-forward, but everything - there's more lines. There's more lines, I think.
37 There is no map in evidence which shows all of the locations and land features Uncle Rusty identified. Certain things are clear from his evidence. For example, Uncle Rusty was firm that Injune and Roma are not part of Bidjara country. He was equally firm that Bidjara country includes Carnarvon Gorge up to Springsure. The way Uncle Rusty consistently described Bidjara country when asked to do so is also apparent. He consistently described Bidjara country by reference to his current location, extending out from that location to certain boundaries. Locations described as boundaries are repeatedly identified as Beechal Creek, Blackall, Barcaldine, Wyandra, Mitchell, and the Carnarvons up to Springsure. When describing the boundary running between Wyandra and Carnarvon Uncle Rusty linked Wyandra to Charleville, Charleville to Augathella, Augathella to Bogarella, Bogarella to Babbiloora, Babbiloora to Carnarvon, Carnarvon to Springsure, with Springsure being “the last Bidjara country”. When asked to describe Bidjara country south of Springsure, Uncle Rusty described the boundary running back to the west from Springsure towards Barcaldine with Beechal Creek being the boundary on that (western) side.
38 The mapping service Bonzle shows the coherence of Uncle Rusty’s descriptions. Starting in the south, Wyandra is south of Charleville. Heading west from Wyandra you meet Beechal Creek which runs generally in a north-south direction. You can then travel in a generally northerly direction along Beechal Creek in the direction of Blackall and thence Barcaldine. Heading north and east from Wyandra you will reach Charleville. If you continue in a north-easterly direction you will travel through Augathella, Bogarella, Babbiloora, the Carnarvon Ranges including Carnarvon Gorge and thence to Springsure.
39 Some observations can be made about the eastern extent of Bidjara country as described by Uncle Rusty. As noted, Uncle Rusty was clear that neither Roma nor Injune were Bidjara country. He described the Maranoa River, however, as Bidjara country. The Maranoa River aligns generally north-south and extends from the Chesterton Range in the north to far beyond Mitchell (a southerly extent of Bidjara country in this location according to Uncle Rusty) in the south. Uncle Rusty said you had to be a good way out of (that is, west of) Injune before you reached Bidjara country. In context, this can only mean that Bidjara country ended to the west of Injune but to the east of the Maranoa River. If, as Uncle Rusty said, Springsure is a boundary of Bidjara land then it is a boundary to both the north and the east. Uncle Rusty said that the boundary from Springsure ran west to Barcaldine but he did not suggest the boundary extended any further to the east. Eastern locations mentioned by Uncle Rusty as Bidjara country, as noted, are the Maranoa River, Carnarvon Gorge, Carnarvon National Park and Springsure. While he mentioned Rolleston in describing locations Uncle Rusty did not say Rolleston was in Bidjara country. He expressly said Roma and Injune were not Bidjara country. Rolleston is to the east (and south) of Springsure. It is to the north of Injune but in a similar easterly location as Injune.
40 From this analysis it is apparent that Uncle Rusty’s evidence in his own words identifies the eastern-most extent of Bidjara country as ending, in the south, somewhere to the east of Mitchell (but not as far east as Roma), in the middle to the east of the Maranoa River (but not as far east as Injune), and in the north at Springsure. The only matter not clarified by his evidence is the location of the eastern boundary of Bidjara country somewhere to the east of Mitchell and running up to Springsure, other than that the Maranoa River is inside Bidjara country, as are Takkarakka and Carnarvon Gorge, whereas Injune and Roma are outside Bidjara country. If Uncle Rusty believed that Rolleston was part of Bidjara country it was apparent from his evidence he would have said so when he mentioned Rolleston. He had no hesitation in identifying what was and was not Bidjara country. Once his evidence is considered as a whole it is impossible to understand Uncle Rusty to be saying Rolleston is Bidjara country. He did refer to Carnarvon National Park in the context of Bidjara country. This is consistent with the fact that the majority of the national park is to the north-west of Injune and, in particular, Carnarvon Gorge and Takkarakka are west of Injune and Rolleston. All of Uncle Rusty’s evidence points to Bidjara country ending a good distance to the west of Injune and to the west of Rolleston, as well as at Springsure. This is consistent with the fact that Uncle Rusty does not mention, as part of Bidjara country, the Expedition Ranges, the Arcadia Valley, Lake Nuga Nuga, the Kongabula Range, or Rolleston. These places are all located to the east of the Carnarvon Ranges, Carnarvon Gorge, Takkarakka, as well as to the east of both Mitchell and Springsure.
41 Uncle Rusty’s evidence discloses his deep knowledge of Bidjara country. The difference in detail between his knowledge of the boundaries of Bidjara country and that of the other Bidjara people who gave evidence in 2001, Bob Mailman, Betty Saylor, and Ritchie Fraser, is obvious. When comparing the weight to be given to Uncle Rusty’s oral evidence given at various locations throughout Bidjara country compared to the evidence in his written statement and the inferences which should be drawn from his involvement in drawing up the boundaries of the Bidjara No 3 claim, it should be apparent that his oral evidence is far more likely to be reliable for many reasons. As noted, Uncle Rusty’s written statement was read to him. While he signed off on the statement as accurate he corrected it in his oral evidence by saying that Injune is not Bidjara country. The fact that Uncle Rusty could not read or write (as he said in his oral evidence) would have made it very difficult for him to use a map to draw up the boundaries of Bidjara country. By contrast, while on Bidjara country he could describe by direction, in a great level of detail, places that link one to the other, all generally moving from the western part of Bidjara country (Wyandra and Barcaldine) towards the eastern part of Bidjara country (up to the Carnarvons and Springsure). Uncle Rusty’s repeated descriptions of Bidjara country as extending “up to” the Carnarvons and Springsure, in the context of his evidence as a whole, can mean only that Uncle Rusty was saying that these places are the eastern-most extent of Bidjara country. Carnarvon Gorge and Takkarakka, which he referred to expressly as Bidjara country, are generally within the scope of this eastern-most scope of Bidjara country. However, they are located in the western part of the overlap area. The overlap area extends well to the east of Carnarvon Gorge and Takkarakka across the whole of the Arcadia Valley into Expedition National Park, east beyond Lake Nuga Nuga, east beyond the Kongabula Range and the Comet River and Clematis Creek, and to Rolleston. Uncle Rusty’s evidence cannot be understood on a rational basis as suggesting that these areas are Bidjara country. To the contrary, his words about Bidjara country going up to the Carnarvons and up to Springsure, in the context of moving from west to east, and not extending to or even close to Injune, confirms that Bidjara country as identified by Uncle Rusty does not extend as far east as Injune, the Arcadia Valley, Lake Nuga Nuga, or Rolleston. Bidjara country does extend as far east as the Maranoa River, the Carnarvon Gorge, Takkarakka, and the area which might be described as the western part of the Carnarvon Range.
42 In other words, the general shape of the boundary of the Bidjara claim, which extends further to the east in the southern part and then cuts back to the west towards Springsure in the northern part is consistent with Uncle Rusty’s evidence but the entire line representing the eastern claim boundary starts too far to the east to be consistent with his evidence. His evidence leaves work for inference about the actual eastern boundary of Bidjara country but, as I have said, Uncle Rusty clearly identified Mitchell in the south and Springsure in the north as two relevant locations being Bidjara country, the Maranoa River as being in Bidjara country, and Injune being quite a distance to the east of Bidjara country. This enables an inference to be drawn that Bidjara country, as identified by Uncle Rusty, must be west of the Carnarvon Highway, incorporating the main western parts of the Carnarvon National Park (and Carnarvon Gorge and Takkarakka) and the western parts of the Great Dividing Range in this area.
43 The hearing in 2001 also produced valuable evidence about Bidjara culture. Again, Uncle Rusty’s evidence is the most detailed of all of the witnesses. Given that Uncle Rusty was the eldest Bidjara at this time (80 years of age) this is perhaps unsurprising. It is also apparent that Uncle Rusty had the benefit of time with his father, a Bidjara man, and another Bidjara man who was much older than his father, George Muthers, as well as Uncle Billy Peters (a man with six fingers whom the Bidjara, including Uncle Rusty, associated with rock art in Bidjara country, including at Carnarvon Gorge). Uncle Rusty was taught how to hunt, sing and dance the Bidjara way by these men from when he was six or seven years old.
44 Uncle Rusty and other Bidjara people would hunt and eat kangaroo, wallaby, snake, emu, possum, porcupine, goanna, and collect burumu bushes (a wild currant), yika (a wild orange) and lots of other bush tucker such as emu eggs, witchetty grubs and fresh-water crayfish. Uncle Rusty could sell the skin but not eat possum, however. He explained:
He's my meat too, possum is. I can't eat the possum because it's my meat, see. They my meat, them fellas, the possum. And my father the red kangaroo.
45 Betty Mailman said her father told her that other people needed permission from the Bidjara to hunt on Bidjara country. All of Bidjara country was their hunting ground. Other people needed permission to cross Bidjara country as well, even if not hunting.
46 Uncle Rusty said he was possum from his mother and red kangaroo from his father. Bob Mailman was also red kangaroo from his father so their fathers were brothers. He also gave this evidence about marriage:
MR MAURICE: But tell me this, Rusty. Can a red kangaroo person marry a red kangaroo person? Is that right?
RUSTY FRASER: No, can't do that. No, you can't do it. You got to marry a different mob, see. Say that I want to get married now. Well, I can marry a what-d'ye-call-im. I can marry a red kangaroo, see. I can marry red kangaroo.
MR MAURICE: Because you're a possum?
RUSTY FRASER: I'm a possum, yeah.
HIS HONOUR: But no possum?
MR MAURICE: You can't marry a possum, Rusty?
RUSTY FRASER: I can't marry possum. No, you can't marry. They kill you for that. Years ago, even if you sit on your sister's bed or anything like that, they can kill you for that too. They point a bone. They get a bone from here. They point it at you like that and you're dead, dead in a few minutes. They kill you straight away with that thing.
…
RUSTY FRASER: Lot of them, they can bleed you - cut you there, that vein there, and they put it over the fire and sing this song then, sing a song, and you're gone then.
…
RUSTY FRASER: Oh, yeah, you're gone. You can go to all the doctors in the world. They can't cure it. They can't cure it because you got to get a bloke that's clever bloke to cure it. Doctor can't cure it. No chance, doctor.
47 Uncle Rusty later explained the rules about marriage in more detail, as follows:
You can't marry a Bidjara woman, you know. You got to marry a different tribe, see, different tribe. You can marry a different tribe but you can't marry a Bidjara. You can't marry into your tribe or your relation. See, lot of people now, they get married and they might be cousins or something. That's not the law, see. The law won't allow it, see. They kill you for that years ago. Years ago they kill you. If you went with your cousin or something like that, well, they'll put the bone into you or something, kill you, yeah.
48 Uncle Rusty said he had taught younger Bidjara men traditional songs and dances. These had been sung and performed in “Sydney and everywhere with it. Go right down to what-d'ye-call-im - right up Blackall and right up to Longreach and all around there. We dance all around Longreach and everywhere, around Barcaldine”, as well as at Carnarvon Gorge. Uncle Rusty explained that other Aboriginal people could not dance in Carnarvon Gorge unless they first asked the Bidjara as that is part of Bidjara country. So too Bidjara people would have to ask the Gunggari mob if the Bidjara wanted to dance in Roma as Roma is not Bidjara country. Near Carnarvon Gorge Uncle Rusty said people who were not Bidjara could not sing and dance with Bidjara. Uncle Rusty also said near Carnarvon Gorge:
Not many what-d'ye-call-im now, half caste, can sing a Murri song. I been taught by the olden times see, old George Muthers and my father. One of the best singers in the back country, them fellas. When they singing you can hear them miles away singing, them fellas, when they hit the bilkan, you know. They call him bilkan, you know. Hit him like that, sticks together. And making a fire, see. Lot of people - lot of white people die now if they went in bush. You got bush here, but Murri, they'll survive, Murri will, because he knows how to make the fire, see. You get that stick and make a fire. They made the fire the other day. You seen that?
…
Well, you can make it with any sort of stick too, but they made it with that bunbulbul. They call it bunbulbul. He grows here in the Carnarvon Ranges, see.
…
That's why you get that medicine from here. They call it mila mila medicine. You drink him up. I drink a lot of gumbi gumbi. I drink it all the time. That's why I'm well all the time, see. My nephew, he drinks it too, that fella over there. Sugar, he drinks it. Good stuff for you, gumbi gumbi. If you drink too much of it, it make you drunk too, but if you take him up there like that up there, that fine. Drink him up. Next thing, you right as rain. You get crook from the cold or any flu or anything, he kill him straight away. You got all cures here, all black fella cures.
49 At Ambathala Lake near Augathella Uncle Rusty explained that the Bidjara snake, Mundangarra, lived in the lake. This snake would not hurt Bidjara people as the snake was a Bidjara snake but would hurt other people if they went in the lake. The snake knew they were at the lake and caused a big whirlywind while they were there to let them know. The same Bidjara snake (the rainbow serpent) could be seen in the sky after it rained and also lived in other places such as at Boggarella and near Mount Playfair, as well as (in the past) Tambo Bridge. The snake was dangerous and would kill other people. At Tambo Bridge Uncle Rusty said:
Oh, well, you get crook. You might die. See, you'll die too. Oh, yeah, they can kill you. He can kill you, Mundangarra can. He's all colours of the rainbow, he is. You see when it rain? Well, that's him. He's up in the air - sky. But he went from here. I don't know where. He could have went to Mitchell Camp; he could have went anywhere, see. They travel around, you know.
50 Betty Mailman said:
That's the Rainbow Snake. When Aborigines used to see that snake, they used to be frightened. They used to get a terrible fright out of it, because it used to make them sick, Mundangarra. It was the Rainbow Snake. Aborigines was very terrified of that snake when they used to see it. You can go to a water hole - you see a water hole there, never been dry, because that's when you know when a Mundangarra is there, because that water hole will never dry up while that snake is there. That is true.
51 At Torres Park Uncle Rusty said:
Well, that used to be where that Mundangarra used to be. That's that what-d'ye-call-im. Used to be big spring there one time. Water running there. Used to be big spring there, but it all dried up now. I don't know what happened to it.
MR MAURICE: Was that Mundangarra there when you were working on the place?
RUSTY FRASER: Oh, yeah, he was there, yeah. When all the dark fella left, he might have left too. He might have went somewhere else. He might have went to Mitchell camp. He could've gone anywhere. They go anywhere, that Rainbow Snake. You heard Betty say this morning once they go in the water it never dry, the water. That Ambathalla never dry, you know.
52 Uncle Rusty said about the birds around them in one location:
[some birds]…They all black fella one time, these birds, here, yeah. See that crow then. He had a fight with a galah then, a galah. He threw the galah in the fire. That's why it's all red now, see. He's all red all over him now. That's from the fire, see, when they threw him in the fire. And the bowerbird and the happy family. They do it then. He chopped the bowerbird in the back of the neck there. When you see the red in the back of his neck there, well, that's where he chopped him with that - with a tommyhawk, see.
53 Uncle Rusty said nothing could be touched in a cave at Mount Tabor or else the person might get sick, and it is apparent that he believed no-one should go in the cave. Bidjara people who had died had been wrapped in Budjeroo bark and placed in the caves. Later Uncle Rusty said about the Lost City on Mount Tabor:
There's a lot of printing there too, but you can't go there. You know, you can't do what you like there. You can't go without - well, my nephew, Sugar's boy there, Robert, Robert's son what-d'ye-call-im in the cave there, he went in the cave and had a look, and it's a woman's cave, see. There's woman cave and men cave. It'll kill you, you know, make you sick. Well, he got in this woman. People walking around on the roof and all round there, you know. Haunted him all night. He reckons there's some fella in there, see, another Bidjara, see. If you're not Bidjara, well, you can't go in there, anything like that, or touch anything, you know. If you're not Bidjara, you'll get very sick or it'll kill you all right.
Is that Floyd that you're talking about?---Yeah, Floyd. He said to me, "Uncle," he said, "I don't know," he said. "This thing haunting me down here." He reckon there's things haunting him, walking round on top of the roof. I said, "It might have been a possum or something walking." "No," he said, "it's rock. You can hear him walking on it, see."
54 At Babbiloora Uncle Rusty looked for the six fingered sign he had seen before and explained why it was important:
Oh, yes. Must - might be my uncle, see. He got six fingers and six toes, my uncle, Billy Peters, see. He had - he had six fingers and six toes. He must have been up here too, see, draw the marks like that on the - on the rocks like that, see.
55 When a stone was taken from Carnarvon Gorge Uncle Rusty said it had to be taken back there. He said:
…they took one stone away. There's my nephew there now. There's Robert there now. They took one stone away from here and we had to bring that stone - my brother brought it right back here and give it over there to what-d'ye-call-im - Grahame Walsh. He still had that stone there when we come up here last time. I come up to see Grahame Walsh. He still that stone out at Takarakka there, see. I said, "Where's that stone?" He said, "I got it in here," he said. So he brought it out then and he showed it to us. I said, "That's the stone all right," I said.
…
Yeah, somebody took it away. Some of them tourist people took it away down New South Wales or somewhere down there, or Sydney somewhere. They traced that stone back. They knew where the stone come from, see. Come from here, so they bring it right back. You can ask him. Dusty brought it back then, eh? He sent Dusty back with it.
…
He still got it there. Grahame Walsh got that stone. It belong to here, see. That stone belong to here. I don't know whether they put it back in the cave again, but I don't think so. I think he still got it.
…
Belong to here. Belong to Bidjara. Belong to Bidjara mob. Belong to Bidjara mob, yeah.
56 He said also that there were lots of Jun-juddie (little hairy men) in the Carnarvon ranges. As Uncle Rusty explained:
Oh, well, if you camp anywhere and you make a fire anywhere - you might be having a yarn. If you left your tobacco, they take tobacco, anything. They take it on you, take him away and smoke him.
…
Mm. Another fella here too. He lay on top of you. Yunji. Yunji. He lay on top of you too. He kill you too. Same as the Rainbow Snake. When it rains, you see that rain. Well, you see him there in the sky, you know. In the night-time you can see him up here. Lot of them can't get along in the night-time, but I'm a better bushman in the night-time than what I am in the day-time, see.
57 Uncle Rusty then said:
Calliwong, yeah, what-d'ye-call-im. He's a calliwong, that fella. Murri call him karabarka. Karabarka, Murri call him, that fella singing out there. That's a calliwong, that one, calliwong. When the calliwong come flying down from the mountain, then they start dancing then, you know. That's what Murri said.
…
Yeah. Oh, they cheeky fellas, them fellas. That's the fella put the tommyhawk into the what-d'ye-call-im - cut the bower bird in the back of the neck there, and now you see the red. You get a bower bird and he got red in the back of the neck. Well, he chop him with a tomahawk.
…
Happy family chop him with a tommyhawk. Cheeky little bird, that one. They all black fellas one time, all them fellas.
…
Old Murri told me. All black fellas here.
…
That crow? He got all the gilayi. He got all the gilayi and he threw him in the fire and that's why he's all red now. He's all red now, see, from the fire.
58 The Calliwong you could eat but you could not eat the “happy family bird”.
59 The Curlew or Guylban, Uncle Rusty said, is:
…a death bird. If my people die, well, I know when they die because he come there. One on his own, he dangerous, because he tell you that - he'll go the same way. Where your people died, well, he'll sing out and go the same way, and he knock off then. He sing out about two or three times and he go the same way where the people die. Well, you know there's a death, see. He's a death bird, see. He's a death bird, see.
60 Uncle Rusty said:
Do you teach Floyd about the stories that George Muthers told you?---Yeah, yeah, sometimes I teach him. I try and teach him. See, somebody got to take this place when I die, see. I'm 80 years of age, see, and when I die, well, I got to get someone else to take over then, you know, to take over.
And who else do you teach?---I teach Floyd. He might be all right for that. You know, he understands.
Do you teach other young Bidjara people as well?---Eh?
Do you teach other young fellas as well?---Yes. I teach them everything, you know. I teach a lot of them dancing, Bidjara dances and everything. I teach them all how to dance.
Do you teach them the rules, Mr Fraser, the Bidjara rules?---Aboriginal rules are different than white people's rules, you know. Say that you wanted to sit on your sister's bed or anything. They can kill you over that too. They can point a bone at you too. They get the bone and point it at you like that and you're dead. You don't die straight away but you pine away to nothing. You won't eat nothing, you know. You can't eat nothing.
…
It got to be all Bidjara dance, though. Bidjara got to dance, you know. I got some that come from the highland, lot of my dances too. They come from down outside of what-d'ye-call-im - come from highland there. I have them dancing with me too. I teach them to dance. I teach all the boys to dance. And my nephew, he's got three boys. They're pretty good dancers too.
…
If I don't teach them to dance, well, it'll die out, you know. I got to keep it going. They know - they sing the songs and everything now, and they dance and everything. I don't interfere with them now.
…
Mr Fraser, do you teach the Bidjara law and the Bidjara rules - - -?---Oh, yeah.
- - - to the young fellas?---Oh, yeah.
Does anybody else teach?---I got to teach them up, you know. You got to teach them to keep it going, see - - -
Does anyone else teach?---- - - or it'll die out. It'll die out if you don't. There's lot of Bidjara people around, see. You got to teach the young fellas to do the corroborees and everything. I'm trying to teach what-d'ye-call-im now, see, Floyd, to carry on with the job. See, we look after all the - look after all the what-d'ye-call-im, all the artificial or anything like that. We look after them and put them away, you know, put all the what-d'ye-call-ims away. He's got a lot here now too, this what-d'ye-call-im. Make this what-d'ye-call-im up here. Put all the what-d'ye-call-ims in there.
The keeping place?---Keep in there, keep them inside.
Do other members of the Bidjara group also teach the young people?---Oh, yeah.
Who else teaches the young people?---Eh?
Who else teaches the young people about the Bidjara rules?---I do. I'm the only fella knows about it. See, none of these young fellas don't understand anything, don't know how to sing songs, don't know how to get tucker and all them sort of thing. You got to teach them all, you know, how to get them and everything.
Do any Bidjara women teach the rules?---Yes. Different rule, you know, in the what-d'ye-call-im.
…
Do you have to be initiated in order to teach the rules and tell the stories?---No, no, not now. Used to do long time ago. They cut you. When your tribe die or anything, they cut you. They put nicks in you, across your chest, all along there. You see them all the time. You can notice them soon as they put their shirt off. You see all the marks on them, see where they're cut. If you was away a long time and you went to - say you went to Springsure now, went to Springsure and met all men. Well, they all cut their head soon as they find you there, you know, all cry and they cut your head, let the blood run down. That's the law.
That doesn't happen now?---That's the law, see.
61 Uncle Rusty also said that the Gungabulla were the same as the Bidjara in these terms:
Gungabulla and Bidjara. Yeah, they same. They're the same. A lot of them come from Springsure, Gungabulla too, and lot of Bidjara round Springsure too, see.
…
Yeah, they come from - yeah, lot of Bidjara, see, lot of Gungabulla mob. Lot of Bidjara mob there too, see. All mixed up, see.
…
Gungabulla can come there [to Mount Tabor as] They the same mob, see. We the same mob.
[The Lawtons are all] Gungabulla.
62 However, the Gungabulla:
they can't take Mount Tabor because it belong to Bidjara, but they can take it too, I suppose. They got lot to do with it too, see. All the same, see. They're the same, same mob.
63 As to Carnarvon Gorge:
Only one tribe come. No different tribes come.
…
Well, the Bidjara mob, see. Only the Bidjara mob can come there, see.
…
don't know no other tribe. Only the Bidjara tribe. That's all. That's all I know.
…
So if I'm in Carnarvon Gorge, no other Aboriginal peoples apart from Bidjara can come into Carnarvon?---No.
Wasn't there other Aboriginal tribes in Carnarvon?---No.
64 As to Springsure:
Bidjara country. Belong to Bidjara, Bidjara and Gungabulla. Gungabulla and Bidjara both own it, own that country.
65 When asked where Gungabulla country was Uncle Rusty said:
Well, Springsure, but they're the same. They talk same lingo as we talking now, see. We both talk the lingo. They talk the same - sing the same songs and everything.
…
They're a different tribe, though?---No, they're the same tribe. Gungabulla and Bidjara the same.
Gungabulla doesn't have - does Gungabulla have its own country?---Gungabulla the name of the tribe.
Do they have their own country apart from Bidjara?---No.
The Gungabulla tribe: where's their land?---Well, they must be here with us. Same mob as us, Gungabulla, Gungabulla and Bidjara.
66 Mr Mailman was born in 1953 in Mitchell. His parents were Ada and Herbert Mailman. His father was Bidjara and his mother Gungarri. His father was born in 1911 at Mt Owen Station (which is north of Mitchell and west of Injune). His father spoke Bidjara as did his father’s brothers and sisters. In his statement Mr Mailman said his father taught him a lot of traditional ways useful for getting food and medicine. Mr Mailman has hunted for bush tucker all his life.
67 His father told him Morven, Mungallala, Charleville, Augathella and a lot more areas are Bidjara country. Morven, Mungallala, Charleville and Augathella are all west of the overlap area. Mr Mailman said his father also told him he worked around the Carnarvon Ranges (including at Mt Moffat) which was Bidjara country. Mount Moffat is also west of the overlap area. He also worked at Babbiloora and Bogarella and around Mitchell and Augathella. His father also used to talk about lots of places including Carnarvon Gorge. Mr Mailman’s Uncle Wally used to work in Arcadia Valley. His father would talk about lots of things with other elders but would chase the kids away. He talked about Mundagartta, the rainbow serpent, which moved between water holes including Lake Nuga Nuga and the stars and the Goori Goori bird. He said that the previous generation had “exceptional” knowledge of their lands and traditions.
68 Mr Mailman said that Bidjara mainly married within their own tribe, but that he has read that they should not. He said that he was not sure of the rule because his parents have been dead a long time and he only learns from what he reads or hears.
69 Mr Mailman was at the meeting in 2006 when “Bidjara elders” decided their claim, which included (relevantly) Springsure, Rolleston and Injune, should be extended to include other areas.
70 Mr Mailman does cultural heritage clearance work in the overlap area. He originally did that work with representatives of the Garingbal Kara Kara as that group had a claim over part of the area. He described having the feeling of communicating with spirits there (that is, in the overlap area).
71 In oral evidence Mr Mailman said that he had heard of the Charlie Victor Range and that Charlie Victor was his grandmother’s brother. The Charlie Victor Range is next to Carnarvon Gorge.
72 Mr Mailman also said that as far as he knew Gerry and Maxy Miller were Bidjara, spoke Bidjara, and they lived in Mitchell. Mr Mailman also knew Kevin Albury. According to Mr Mailman Kevin Albury told Mr Mailman’s older brother, David Mailman, that he (Kevin) was Bidjara. Also, Kevin Albury spoke what Mr Mailman assumed to be Bidjara because the conversation was with his father who spoke Bidjara. Mr Mailman himself is not fluent in Bidjara.
73 Mr Mailman agreed that he did not know where any sites of Aboriginal heritage were on the overlap area until they were located while inspecting the land on behalf of mining companies. He did not know much about the land until he carried out this work.
74 Mr Mailman described Uncle Rusty Fraser in these terms:
[A] very popular man, actually because he could sing a lot of songs – Aboriginal songs which he used to, you know, sing in Bidjara. He knew a lot about the country, a lot of stations, yes, he was a good leader to a lot of younger people that went out in the bush with him.
75 Mr Mailman disagreed with the suggestion that, according to Uncle Rusty’s evidence, Bidjara country did not extend into the overlap area other than Carnarvon Gorge. He said the Bidjara native title claim:
…it went down to Carnarvon – sorry – to the Carnarvon – what do you call it – Carnarvon Gorge, Wallaroo, down into the Arcadia Valley, up to the end of the Arcadia Valley and then it goes around behind Rolleston. That was our – that – that was the map that was drawn up from day one.
76 Mr Mailman had never heard of the Garingbal or Karingbal being a sub-clan of the Bidjara.
77 Mr Mailman also gave this evidence:
● Do you believe, as a Bidjara person, that everyone has the same rights everywhere or do you believe that some particular people have interests in particular areas?---No. We all – we all believe what is ours, is ours. You know.
● We don’t – not – not being slow or anything like that but it would sound silly to think that – to this ..... group or a tribe would have, what do you call it, different – different sort of thing for, you know, for – for the people in the tribe. I’m, you know – all go as one.
78 Mr Leslie is a Kamilaroi man who was born in 1953 and grew up in Charleville, where he was later employed as a community worker by the Department of Aboriginal Affairs. He later became a director of Sandalwood, a company which acted for traditional owners in their relations with mining companies.
79 Mr Leslie grew up with Bidjara people and one of them, Henry Gadd, lived with his family. All his life he understood Charleville, Wyandra, Augathella, Mitchell, Tambo, Blackall, Springsure, Alpha, Clermont and Barcaldine to belong to the Bidjara people. He also said he understood Rolleston and Injune were Bidjara country. These areas are all west of the overlap area, other than Rolleston.
80 Henry Gadd also told Mr Leslie that Carnarvon Gorge was Bidjara country. In 1983 Mr Leslie went with Stanley and Joe Lawton (who were Bidjara) and Garry Martin to visit Carnarvon Gorge and met Graham Walsh. Graham Walsh said Carnarvon Gorge was all Bidjara country.
81 Ms Waterton is a Bidjara woman through her mother, Iris Richardson, whose father was Johnny Richardson, a Bidjara man. Ms Waterton’s father was an Iman man. Iris Richardson was born at Murray Pinch, about 10km south-east of Springsure. Ms Waterton’s mother told her that they were from Springsure and that their totems were emu and possum.
82 In her oral evidence Ms Waterton said:
• traditional Bidjara burials involve wrapping the bodies in bark;
• Springsure is Bidjara country;
• her great great grandmother was Teresa Brown who was from Springsure;
• she had found out her family tree from government documents so she could tell her children and grandchildren:
where they come from, where they originate, where – because it’s very
important for their culture to know where they are and where they come from. They
can’t be marrying into their family. And that’s very important;
• her eldest sister’s uncle or grandfather was an Albury and her father was Amby Albury. They were sisters through her mother. Her eldest sister, Constance, was now deceased;
• on some government papers the Albury’s are identified as Bidjara but she could not recall what those papers were; and
• she understood the Karingbal and Brown River People to be Bidjara people as they came from the “same connection” as Bidjara and are a sub-clan of the Bidjara as “they all come back to the same apical ancestors”. As such, they have the same country as the Bidjara.
83 Mr Little is a Djakunda man whose wife, Rhonda Fraser, was Bidjara.
84 Mr Little was previously employed by the Goolburri Land Council as a field officer, a position in which he gathered statements and recordings from Bidjara elders. He did most of his work with Uncle Len Mailman and Uncle Rusty Fraser. Uncle Fred Lawton told him that the sign of the Bidjara was a V and the sign could be seen in the Carnarvons. Uncle Len Mailman told him of Billy Peters, a Bidjara man who had six fingers and six toes and that some of his descendants had the same. Uncle Len showed him sites of imprints of six toed feet and burial locations including at Carnarvon Gorge and numerous other places (all to the west of the overlap area). Uncle Len also showed him the site of the massacres at Hornet Bank (east of Injune) and Caroline Crossing (near Augathella), as well as the camp at Murray Pinch near Springsure. At Murray Pinch Uncle Len showed Mr Little a creek, perhaps Minerva Creek, where someone of the Geebungs was born. These places are all west of the overlap area.
85 According to Mr Little Uncle Rusty Fraser told him that Carnarvon Gorge is Bidjara country and that Uncle Rusty and others told him that Lake Nuga Nuga is Bidjara, “nugga” being Bidjara for “look”. In oral evidence Mr Little explained how this came up in these terms:
Can you tell me, as best you can, exactly what words he said. I know it’s a long time ago, but I’m just wondering if you can recall whether he was specifically talking about Carnarvons, Carnarvon Gorge, the ranges, or how this came up?---What happened before we went to the gorge with Ryan J, the Federal Court, we had previously started in Charleville and Withalla Lakes, or Withalla. And it was at – actually at Mount Tabor he decided to go to the gorge, and somebody put the question to Uncle Rusty, or they said something to the effect that someone was saying, “That’s not your country.” And he – Uncle Rusty was adamant; he said, “That our country.”
Okay. And you then go on to say that:
He and others told me Lake Nuga Nuga is Bidjara is Nuga Nuga is Bidjara
word for “look”.
?---Yes.
Was that something – I’m wondering whether they told you that that was the reason that they knew Lake Nuga Nuga was Bidjara country, or is that something you’ve worked out?---No, they – they – the story they told me was about somebody looking – saying, “Nuga,” which means “look” ..... means water, and Bidjara - - -
Right?--- - - - that’s the story I heard.
And because that person said “nuga” it must have been Bidjara country; is that the
way we work it out?---I just recorded it; yes.
Okay. Well, is what I’ve just said the way it was explained to you, that because the word “nuga” was used that must have meant that it was Bidjara country?---Well, Uncle Rusty always thought it was.
86 Uncle Len, Uncle Fred and Doreen Fraser talked about boundaries amongst themselves, talking about water going this way and that.
87 In oral evidence Mr Little said:
• in terms of the overlap area there were “[a] couple of places I’ve been through with Uncle Len Mailman. We’ve been through – just go through from Rockhampton to the Arcadia Valley. We went to Springsure. We went through Carnarvon Gorge once or twice, and I’ve also been to Carnarvon Gorge with uncle Rusty, with Ritchie Fraser, a few other elders, Bob Mailman, and we took the Federal Court through there, and I was also there with Floyd Robinson”;
• Uncle Rusty told him about the Bidjara “V” sign at Carnarvon Gorge during the previous Federal Court hearing and:
uncle Len and uncle Rusty showed me – there were dreaming stories and their star signs, Mundagadda, the star signs, and they talked about the – the gudi-gudi bird and the ..... and little stories. Those stories apparently come from uncle Fred Lawton;
88 Mr Little also gave this evidence:
Bidjara Number 3 was registered in 1997. Uncle Rusty passed away in 2003. Have you ever heard of uncle Rusty, in your dealings with him, ever criticising the Bidjara claim of Number 3, saying, “That wasn’t our country”?---No, he always claimed that
it was his country.
…
The paintings on the wall in Carnarvon Gorge. Did any of the elders ever tell you who painted them?---Uncle Rusty always claimed them as Bidjara. I wasn’t going to make any assumptions myself. I just record what they told me.
…
And when you there refer to “the Carnarvons,” do you include Carnarvon Station as part of the Carnarvons?---Carnarvon Station, Babbiloora, Gracevale – there were a number of places where I’ve seen burial sites.
…
Can you think of any other places they took you to see burial sites?---I’ve been here
through Carnarvon Gorge with them.
Okay?---Mount Moffatt.
Okay?---Few places on that side of the range.
Okay. When you say, “A few places on that side of the range,” you mean on the western or south western side of the range?---That’s right.
Is that what you’re talking about?---That’s right.
89 Carnarvon Station, Babbiloora, Gracevale and Mount Moffat are west of the overlap area. Carnarvon Gorge is within the overlap area on its western boundary.
90 Ms Lawton is Bidjara through her father, Fred Lawton. In her statement, Ms Lawton said that Bidjara elders had always told her Charleville, Augathella and Carnarvon were in Bidjara country. She grew up in Augathella and Charleville. Her family would go tracking and hunt every day for bush tucker, including for kangaroo, porcupine, goanna, bush fruits and honey. They would boil up gumbi gumbi for medicine.
91 Ms Lawton used to go to Mount Moffat a lot and tried to get back to her country as often as she could. She had taken young Bidjara people to Mount Moffat to show them Bidjara sites. She had been to Carnarvon Gorge as well, with Pat Fraser. Ms Lawton said you could feel it in your bones when you were on your own country and she had felt that at Mount Tabor, Mount Moffat and Carnarvon.
92 Great Uncle Fred was buried near Springsure. He loved that area and would tell stories about the land around Springsure.
93 Ms Lawton’s elders all spoke Bidjara but as young people they did not learn how to speak the language. They understood bits of it only. They had a copy of Breen’s Bidjara language book now and were trying to learn more of the language.
94 Her elders told her the story of the Goori Goori bird and the hairy men which frightened them as children. They were told about the Mundagutta when the river was flowing. But generally the children were not allowed to be with the adults who spoke amongst themselves.
95 She went to the Carnarvons as a teenager and her father told her it was Bidjara country. Her daughters had also been there to trace their ancestry.
96 In oral evidence Ms Lawton said:
• in terms of the overlap area, “[t]he only places I’ve been to is up to the Carnarvon Gorge, round Mount Moffatt/Springsure area and the Rolleston – right – like around there visiting”;
• when she referred to “the Carnarvons” she meant Carnarvon Gorge;
97 Ms Lawton also gave this evidence:
I notice at paragraph 70 you talk about stories about the hairy men. You say you couldn’t understand them, but they were enough to frighten young children. Was your understanding that those stories about hairy men were stories that were made up to frighten children, or was there more to it than that?---No. They were called the Junjun men, you know, like, true traditional customs, and there’s hairy men. It’s like – how can you explain it to white people? I don’t know, but it’s like a – they’re like a little thing that – a little man and – they either can be good for you or they can be bad spirit, bad – bad or good spirit.
…
Okay. Do you still believe that those hairy men are out there?---Yes, I do.
Okay?---Because I’ve had experience with.
Now, you’ve mentioned a story about a goori bird. Was that a story that you learned from a book written by Grahame Walsh?---To me, the goori bird is – one of the – we used to say “goori goori”, and that – you know, like, it works – to us, it was the same as what you’re saying, “goori goori”, but we used to say “goori goori”, and whether 40 that could be a ghost or could have been the bird.
Okay?---But – I have seen the book, but I’ve also been – heard the story and I’ve been told the story.
…
Okay. Do you know a story about an eagle and a place up near the Carnarvons?---The wedge-tail eagle?
Yes?---I do know about the story that I’ve been told by other people, and when we photographed it the other day, you can actually see a clear outline of that wedge tailed eagle, and I understand that’s part of a – my great-great-grandfather, Jimmy Lawton, was a part – was involved – like, he was a part of that story, involves – there. Like, he’s a clever man, sort of thing.
Okay?---But he was – he was a part of that up there in the Carnarvon.
98 Mr Robinson provided a lengthy witness statement and oral evidence. Both referred in detail to many locations including many outside (to the west of) the overlap area. This summary focuses on his evidence about Bidjara traditional laws and customs and the overlap area.
99 Mr Robinson is Bidjara through his father, who is Bidjara through his mother, Nell Fraser. He grew up in Charleville. He first went to Carnarvon Gorge National Park in 1981 when he was 8 years old. He went with all his Uncles, including Uncle Rusty and Uncle Dusty Fraser, and his grandmother, Nell Fraser. They stayed at Takkarakka and met Graham Walsh and visited lots of sites with him. Mr Walsh and Mr Robinson’s family wanted to set up a keeping place for Bidjara artefacts and burials at Carnarvon Gorge.
100 As a child he was told about the Jun Juddy, the little hairy men, who would get you if you played up. He was told this at Carnarvon Gorge by Uncle Rusty and Aunty Pat Fraser. He was also told about the Mundagutta who would get you if you went swimming by yourself. Later his grandmother told him that the Mundagutta and the Jun Juddy were Bidjara and would not hurt him as he was Bidjara.
101 Mr Robinson became a cultural officer for the Charleville Bidjara housing company and dealt with many people about cultural issues in that capacity. He returned to Carnarvon Gorge in 1999 because of issues with vandalism and sewage and took steps to protect the area. He took Uncle Rusty and other elders back there and Graham Walsh filmed them talking. They talked about Lake Wangan Wangan (the Bidjara description for Lake Nuga Nuga), the Hornet Bank massacre, Goorldathalla the place of the wedge tailed eagle, Bandanna station, King Chooky when the first aeroplane flew over the Carnarvons and a song Uncle Rusty had made up about it, the Mundagutta who created Carnarvon Creek and all the watercourses on Bidjara country. Mr Robinson helped Uncles Rusty and Lionel to arrange Bidjara dancing at Carnarvon Gorge National Park where the Bidjara dancers have now danced many times.
102 Mr Robinson spent a lot of time with Uncle Rusty Fraser and Bob Mailman and learnt from them. They told him stories about how the Galah became pink, about the Mundagutta, water holes and Bidjara country. Mr Robinson said that Uncle Rusty would always say that the Carnarvon was our country, Lake Nuga Nuga was our country, Bidjara people worked on Wallaroo which was our country and Bidjara country extended up to Rolleston and as far as Springsure and Clermont. Uncle Rusty taught him about acknowledging ancestors on certain land, that birds were Bidjara ancestors, the spirits on country and how you know they are there, the Bidjara V and star signs, and the six finger and toe carvings, as well as bush medicines (the Mila and Gumbi Gumbi bushes), and hunting. Uncle Rusty also told him about proper Bidjara marriage between different skins, possum and red kangaroo. A person cannot marry a person of the same skin or eat the meat of their skin.
103 Mr Robinson said that Murrubu, the Bidjara word for the Carnarvons, is sacred to the Bidjara. The Carnarvons extend from the Dawson headwaters in the east to the Expedition Ranges through the Arcadia Valley including the Kongabula Range (which should be Gungabulla, the Gungabulla being a Bidjara tribe) as well as Lake Nuga Nuga (which is Lake Wangan Wangan in Bidjara, “nuga” meaning “look” in Bidjara) and west to Mount Moffat, Mount Tabor, Dooloograh and Bullen Bullen.
104 According to Mr Robinson the heart of Bidjara country is the highlands of the Carnarvons where five rivers meet (the Warrego, Nogoa, Dawson, Maranoa and Nive rivers). The Mundagartta created Carnarvon Creek coming from the top of Mount Moffat using the same routes by which the Bidjara crossed the Great Dividing Range to the east and north. He was told about places in the overlap area including Lake Nuga Nuga, Wallaroo, Consuelo, Carnarvon Gorge, Carnarvon Creek and Rolleston.
105 In his oral evidence Mr Robinson said:
• There are two death birds in Bidjara culture, the curlew and the goori goori bird;
• “[B]udburra. That’s porcupine. It has always been a favourite tucker of the Bidjara tribe. I know how to kill it; I know how to clean it. I eat the guts; I eat the heart. I eat the liver the kidneys, intestines. I was taught proper way – I know how to track him ..... the old people and that”;
106 Mr Robinson also gave this evidence:
At Balloon Cave [near Carnarvon Gorge] there they had a certain type of artwork where – blown-on dots and that, associated with the stencil work there, and I was told by my elders – Uncle Rusty and Uncle Bob – that they relate to the carpet snake – the dots – blown-on dots and that;
…before we were people we were bird, Uncle Rusty told me. The old fellas took him out and sat him down around the fire and that when he was a young fella, him and other fellas and told them, when we came here with the rainbow serpent from the stars. He landed in the Carnarvons there and we were the birds before we were people;
Uncle Rusty’s story of – when we die, when white – before white man came we became the birds in the Carnarvons, when we passed away, our people and that;
Carnarvon’s relates to Dreaming story ceremonies, and that’s what connects all the neighbouring tribes, that’s what makes our pathways to certain animals. Where the Rainbow Serpent moved, certain places became creation places and story places for certain animals…;
See with Bidjara when you’re connected to country, you’re connected through your totems, you’re connected through a tree, stones, plants, all that. You have different – like totems we call ..... in Bidjara. There are certain things what connect you to country and that.
107 Mr Robinson recalled that:
One time I was 10 mile out of Charleville on the Warrego and me and my mates were in the river, we were having a couple of beers and we could hear this roaring coming. First, we thought it was a convoy of trucks coming we could hear this roaring coming. First, we thought it was a convoy of trucks coming along the highway, because the highway was just up above us, but it took too long. And then we thought it was a couple of planes coming and we looked down the other end, the wind was coming down and it was roaring and that, and I told Uncle Rusty this story and he told me that’s the mundagadda boy, that’s how he moves and you hear that noise and he moves along the rivers and that’s him…
108 Mr Robinson explained that he first went to Carnarvon Gorge because “my nana wanted to take us kids up there to show us where she grew up and that and what was important to us because we’ve heard so many stories through growing up about it”. He continued:
[H]e [Graham Walsh] had some remains of ours. Bidjara burial where people are wrapped in bark and that and some sites he wanted to take the old people to and that. And we travelled with them and that, but we really didn’t take notice of what they were talking about the sites, we were swimming in the creek most of the time because they were walking around and that. And we stayed there for about three days. The old people told us some stories in regards to the junjuddi, rainbow serpent, and other things there, in relation to, like, law you played up and that in those areas, the junjuddi will get you. My nana told me when we got older that was our people, they wouldn’t hurt us.
109 In respect of the same visit, he said:
Cathedral Cave, that’s the site we went to when we were eight years old. It was Bidjara Cave back then when I was young. That’s the only thing I heard, but didn’t know what they were talking about when we were there, we just knew we were going to Bidjara cave, as far as we walked – well, we swam all the way back.
110 Mr Robinson said he was not fluent in Bidjara but knew a lot of individual words, explaining that:
when I visit and travel on country I say buddarol, wadjanin, binanjella, murdi, yumba. Buddarol is your spirits; binanjella is travelling; wadjanin was walking; murdi – black man. Bidjara, yumba – camp home. That’s what I say when I walk country and when I go to certain sites – Uncle Rusty told me that. You acknowledge your spirits. They’re there; you feel them there. And part of you paying respect is acknowledging to them. Even if you can’t speak lingo, you just tell them. I used to do that when I went around taking photos or video – I told them why I was there. I didn’t – even when I had to visit women places, like when I come to a site, I realised was a woman’s place, and I apologise. But my purpose was being there was how to protect those things – places, and I would acknowledge that to them.
111 According to Mr Robinson “a lot of our old people – the Bidjara people – they only worked on their own lands and properties and that”, including “Wallaroo, Uncle Rusty, Uncle Dusty – they all worked there for years” and at Rewan and Bandana Station (which is in the Carnarvon Range south-west of Rewan). Further:
They all looked after bodies on Bandana and all that around there, same as Wallaroo and Uncle Rusty, Uncle Dusty.
112 Mr Robinson gave this evidence:
No, no. I’m talking about the - - -?--- - - - that’s not the Carnarvons to me.
- - - Expedition Range?---Yes.
You call that the Carnarvons - - -?---That’s all.
- - - as well?---Yes. This – the eastern – the western side of that, yes. All part of the Carnarvons, what I was told by my Uncle Rusty.
Right. And to you - - -?---That’s all the Carnarvons that area.
You also call the Staircase Range the Carnarvons, do you?---Staircase Range. That’s near Springsure, ain’t it?
Yes. Is that the Carnarvons as well?---Yes, I would say so. Springsure is all near the Carnarvons, all part of – no, I wouldn’t say Springsure. All that area is the Carnarvons. I can’t be actually specific, but it’s all that areas, what, west of there, the ranges, all the ranges. Not just one Carnarvon range, all the – going all the way over towards near Tambo, Blackall. The elders refer to that as Carnarvons going back to the top of Maranoa and Warrego and the top of Dawson, Arcadia Valley; that’s all the Carnarvons.
Okay. And so I understand that to be the Great Dividing Range. Is that what you understand as well?---Well, yes. That’s the Great Dividing Range, yes.
So all that area that is the Great Dividing Range is the Carnarvons?---Yes, is the Carnarvons.
And how far north does it go?---Like I said, up to near Blackall and places like that.
…
And what about down south. How far does it go there, along that Great Dividing Range?---Right top of Maranoa, top of the Dawson there.
Why does it stop there?---I don’t know. You would have to ask the elders there.
…
And do you consider Rolleston as part of the Carnarvons as well?---Mm.
You do?---Mm.
Because that didn’t look like a mountainous country to me when we went there last
week. You think that’s - - -?---I’m not saying it is.
But it’s part of the Carnarvons as you understand it?---Yes. To me it is, yes. Agree
it’s all the Carnarvons, all part of Carnarvons.
Okay. And does that – now, we’re getting on to this topic, does Springsure – is that
included in the Carnarvons as well?---I would say so.
113 According to Mr Robinson, Bidjara country went as far east as the Expedition Range, as “that’s what Uncle Rusty told me”… “Uncle Rusty told me we go to the Expedition Range”.
114 Mr Robinson also said that the fact that Lake Nuga Nuga was Wangan Wangan in Bidjara meant it was Bidjara country because “you don’t use language, your language on another country… You would be speared, knocked on the head, killed. You don’t go speaking language on other people’s country. You only speak it in your own”. Mr Robinson’s position was that if a place had a Bidjara name it belonged to the Bidjara. He gave this evidence:
Let’s say that the V sign was found in Victoria as a signifier – sorry, as a mark on caves. What would that mean?---My people have probably been to Victoria.
115 Mr Robinson said that “[y]ou’ve got different parts of country relate to different mobs, different bigguns, totems and things like that, or different families associated with different camps here and there, birthplaces, burial places, ceremony places” and Uncle Rusty, Uncle Bob, his grandmother and father had all told him this. While “[e]veryone is the whole Bidjara area” “But I won’t lay on someone else’s burial, someone else’s birthplace or certain ceremony places where certain things might be restricting, you know”. As to Carnarvon Gorge, he explained:
The gorge belongs to Bidjara; we’re the custodians of that area. But now and then we have a ceremony – we have a gathering, and that gathering is .....totems, bigguns. Different representation, different animals, and they would come together and they do their dances, like Christmas dinner your family comes home; your brother, sister – that family ain’t whole until everyone in that family is there, 30 and that’s that ceremony.
…
your understanding is Bidjara own the gorge – it’s in their country – but other people are associated with it, or in some way connected to it through the ceremonies?---Yes.
…
116 He also explained that:
The elders have got nothing to do with age, it’s all about knowledge and it’s all about connection to country, you know. People – you can call every old person an elder and this and that, you know. In the Bidjara tribe it comes to knowledge. They might be my elders and this and that but when it comes to speaking for certain parts of country and things, if they have got no knowledge about it, yes, I will step up to the plate; that’s where I’ve got knowledge. You mightn’t call me an elder. I don’t have that age and that but I’m a knowledge holder of that area, that country…
117 As to the Karingbal people, Mr Robison gave the following evidence:
When you were saying, “You don’t go east to Garingbal,” that means you recognise Garingbal as a mob of people. They’ve got their own country; would you accept that?---Yes.
Where’s their country?---The Mackenzie I thought, I was told.
…
Who told you their country was at the Mackenzie River approximately?---My uncles, the old people.
Which uncle?---Well, those uncles I’ve mentioned; Uncle Rusty, Bernie, Mailman, Joe Lawton – Uncle Joe Lawton, my father.
Is the Garingbal to whom you refer – are they one of the groups that have an interest in the gorge through these ceremonies?---Arcadia Valley. Let’s put it that way, since you’re putting everything – the gorge down ..... I put it down to Arcadia Valley. That’s the only place where their ceremony was, not the gorge. That’s the Bidjara. That’s Bidjara entirely and wholly. They only got relationship with Arcadia Valley there. That cave you got above Arcadia Valley – that’s where that ceremony and that is, where they gather with ..... emu and that. That’s only the ceremony – a party.
…
So Arcadia Valley is the emu mob’s?---It’s associated with the emu ceremony and that. Yes.
It’s their country, isn’t it?---No, it’s not their country; it’s Bidjara country, mate.
Well, the ceremony by which - - -?---Bidjara language, Bidjara thing; not Karingbal
language.
118 Mr Robinson also gave evidence as follows about the Karingbal:
Do you agree that there is a Karingbal or Garingbal People?---Yes, I do.
And you say that you think their country is out east of the Expedition Range?---Yes.
Another thing that is pleaded is that Karingbal are a clan or subclan of the Bidjara?---No.
Well, do you know anything about that? Are you able to comment on it?---No, they’re not a subgroup.
You don’t think that they are a clan or subclan of the Bidjara?---No. They were invited to ceremony, that’s about it.
Okay. They were invited to ceremony. Do you know what kind of ceremony that was? It’s okay if you don’t know?---No, I don’t.
119 Ms Mailman was born in 1966. Her mother was Betty Mailman, sister to Bob Mailman. She grew up at the Augathella yumba. She manages Mount Tabor station for the Bidjara people. Her grandchildren live with her and she teaches them Bidjara language, culture and traditions. Her mother taught her Bidjara women’s business and she is fairly fluent in Bidjara which she learnt from her mother. Her mother told her Carnarvon Gorge was Bidjara country and was a special place rich in meat, water, fruits and medicines and was also a burial place for mummified bodies. Her mother told her Carnarvon Gorge was the home of the Junjuty or hairy man who look after the Gorge and whom you cannot hide from. Uncle Bob Mailman also told her Carnarvon Gorge was Bidjara country, as was Springsure where his grandfather William Geebung was born. His father Dan Mailman rode from Augathella to Springsure to fight someone who said Springsure was their country.
120 Ms Mailman said also in her statement that:
Aunty Janeo Mailman was always told by the old people that the Carnarvon Gorge is Bidjara country. The upper Warrego River from Augathella right through over the range was one time ago known only as the Carnarvon Ranges she said before all the white fellas chopped up our country for themselves and what did the old blackfellas that own the land in the first place get nothing. She spoke of all the time with great anger of mining companies digging up our land where all our old ancestors are in caves, burials are all over there and how her father told her of the secret places that not a lot will ever see mummified bodies in caves with only a pin hole in the wall when you look in they still look alive sitting around. This was done by bee wax, fat and oil from the black wattle tree. She also told me about the Junjuty (hairy man) that he lived there and is watching you all the time even though you don’t know.
Uncle Frank Geebung was the last Bidjara to leave the Augathella Yamba after all the Bidjara families left and our family moved into town. Then old Uncle moved in with us. He loved playing cards, puppy was his favour, having his few beers and most of all he loved his pipe smoke and black tea. But old Uncle, Yocky we called him, loved to have a yarn. He talked about our country the upper Warrego River and called it the Carnarvon Ranges where all our people lived in big camps of our people and they work there too, a lot were born up all around the country and there are a lot of that are buried there just the same he said, we have the smart horsemen our mob, smarter than the white fellas we can track and we know our country better than anyone. Uncle Frank spoke of how he worked all around up Babbiloora, Boggarella, Mantuan Downs, Mount Play Fair, Calderdale, Brenda out of Augathella, up around Winton, so many to recall. Emerald, Springsure, Aramac, Cloncurry, Clermont. But said that the Carnarvon Gorge was a hard hilly country but Bidjara country with lots of bodies in Budjaroobark of the trees art work on the walls he said, Goordi Goordi, everywhere there looking after things clever stones in that place too will make you sick if you touch black fella things and take them bad spells left with them. This was all passed down to him also with the old people that the Carnarvon Gorge is Bidjara country.
…
But Uncle Fred Lawton talked about where he just come from and one day I remember him coming in with all this pretty green rock lots of it, we asked where he got it he said in the Carnarvon Ranges. He said in a cave there is a lot of it and 33 years after that day he gave me a bit of that green stone. I still have it and often wonder what part of the Carnarvon he found it. But at different times he talked he always said that the Great Carnarvon Gorge was our country Bidjara people. There’s a lot of things there girl burials of our people’s bodies in caves. Goordi Goordi (ghost). Art on the sandstone walls. You don’t touch things if you go there not good leave things alone or you will get punished. They will be watching you. The Goordi Goordi look over our old people’s things and bones, but that’s anywhere you go.
Uncle Fred always talked about where he worked around all the Upper Warrego River, Babbiloora, Boggarella, Mount Tabor, Binalong. All over the Carnarvon Ranges, Dooloograh, Bango, Attica, Mt Play Fair, Mantuan Downs there is so many to remember just all over the Bidjara country and he left a great name as the great stockmen or head stockmen boss. Nearly all the properties around the Springsure area this is all Bidjara country and he said he would go home to be buried on country. And he is buried in Springsure.
When my sister Dom and I would go out to Babbiloora for school holidays, an elder, Francis Gadd, was cooking; out there he took us to a lot of places, caves with burials and artworks. He told us that this was all Bidjara bodies, your people he would say. Also her they got their ochre chew it up then blew it to do all the art work. But he also went on and told us that the Carnarvons was our country too over the Range Carnarvon Gorge, beautiful country and there is a platypus, a real one in the fresh water. One day when you go there girls you might see it, I have never seen it. Goes a long way around he said. Bidjara people have big country.
…
But then I moved down to Goodna in Ipswich with my children, Uncle Norman also came to visit me there also Aunty Janeo that at the time lived in Gailes, not far away either so we lived pretty close. But I remember on one of these visits back in 1989 there about at 31 Caldwell Street, that my old Uncle sat with me on the front step, he talked about home Augathella, Yumba, Blacksprings on Babbiloora Boggarella, this is also the day he told me that I was Bombarra totem (Brown Snake) that’s the Geebung totem he said. There is so much more about our country and places he worked and lived but did not go on with the great Carnarvon Gorge and said to me mate that is all our country and don’t let anyone every tell you different. He made it quite clear that we needed to fight for our country there is evidence, we just needed to start gathering it at the time of what was passed down from the old people that told him all the things and stories of the Mundagartta (Rainbow Serpent) from Gorri Gorri Bird. He also asked me if I went to the Carnarvon Gorge yet but I told him not yet Uncle one day, and so sad he passed on and didn’t get a chance to tell all so with all my old people telling as I was growing up this was I believe the Carnarvon Gorge is our country.
Uncle Rusty Fraser lived with me at Mt Tabor for a few years before he died and was so active in our Bidjara Culture. Spoke the language fluently. He told me all the times of our people, where they came from, the families however they were related. He sang the Bidjara songs and went with the Bidjara Dancers. Uncle Rusty led the Federal Court on Country for our Bidjara Native Title of incidents.
And Uncle always told me that the Carnarvon Gorge is Bidjara country, about the art and all the sand stone walls, the caves over our country stories. He was a very strong elder and wouldn’t back down and said we always had to fight for our country. This was all passed down to him from all his old family. Uncle worked all over Bidjara Country, Carnarvon Ranges and Gorge. He always said it was Bidjara country. There’s so much more he told me as well.
121 In her oral evidence Ms Mailman said she was descended from a Bidjara ancestor Nellie Combo.
122 Ms Mailman explained that she had been involved in recovering the bodies of Bidjara people from the Queensland Museum for reburial on Bidjara country. She said:
[T]hrough all the flooding I had all our people’s remains home with me at the house for a period of six months, due to not getting back out onto country, but once I was able to get into the places I had Robert Geebung, Victor Coolahan and Fred Lawton, and we went out and… Yes. They’re all Bidjara people – all descendants –and we cut all the budgeroo bark off all the budgerro trees and placed the grass, and I hand-picked every bone out of every box and placed out in that coffin, and we tied it all up and placed them back out in their caves for their resting.
…
I conducted the smoking ceremony that particular day as well on country. I’ve also, for a numerous – a lot of places, because we also get the leaves from a sandalwood tree, and I do a smoking ceremony in houses because that also gets rid of bad spirits that are in places, so I – yes, I do know of that because I’ve conducted that myself….
On quite a few occasions I’ve done that, and I was taught how to do that and taught how to do that in language.
123 She explained that:
[A]long with me managing the property that I have for our people in respect to that, I’ve done a lot of voluntary work on behalf of our people for the significance of looking after our culture with bush heritage, and that has been going on for 11 years. So just wanting everyone to be quite clear that it’s not all about money, like people 40 might think, it’s about looking after our culture, it’s about looking after our people and our burials and our stuff that’s significant and sacred to us on our country.
124 In respect of Bidjara culture and laws Ms Mailman said:
[Y]ou’ve got the men and women’s business… you’ve got language which is very important to our people… my mother taught me growing up how to not only speak our language, pronunciation was a hundred per cent on the mark for her. Pronounce it properly, say it right, do it right or don’t say it at all, because it would be an insult. The other thing, to live off the land. I got to know all my bush fruits and how to live off the land and I’m proud to say that my mother taught me that, and gumby gumby, that’s something that I drink all the time as well… When Uncle Rusty come out there he lived with me all them years, he collected it every couple of days because the fresher you got it the better it was. So all my fruits and everything, I can tell you a lot about that if you – if anyone’s needing to know that or any language and at least I can be confident with what I was learnt and didn’t need no Gavin Breen book or tape to learn my language because I was taught it, and to live off the land so that I could survive if I was in trouble.
125 She also “calls out” to her ancestors all the time on country, saying:
I was taught also – when I look at burials, but referring to that, going into country I would be – when I would go in, if I’m going to a place, for instance, Mount Tabor knows I’m there. So to me all my spirits and ancestors know that I’m there every day I live there, but when I’m going out to caves and places and it’s very, very important when you’re going to burial sites you will get the feeling of being not wanted, I will know instantly not to touch, but when I approach, when I’m going out onto country, I will say, “Booderall, booderall, gum-Bidjara gumby wajina, nakina.” That means I’m calling out – booderall is the spirit, that’s of all my ancestors all around the country, nakila is language and Bidjara gumby is me and I’m letting them know nakina, I’m looking and protecting the stuff that’s out there. And I never touch anything on anyone else’s country and I always get that instant feeling, what people – it’s a spiritual thing, we belong to the land. We know when we’re on country.
126 About Bidjara dance and song Ms Mailman said Uncle Rusty was “strong and very passionate about that, to hand them down culture. To - you know, to our younger generations. To teach them the song and dance that – you know, that was something that was so strong and passionate and in his heart that it was the right way. Because it was the Bidjara way, the right way to hand down traditional cultural stuff, you know, to the younger generation”.
127 Ms Mailman said that her “great-grandfather, Billy Geebung Senior, was born there [Orion Downs]. That’s where he – he was born there, and spent a lot of years around all that area, and worked on the biggest majority of the properties that are around here”. Orion Downs is between Springsure and Rolleston, currently just north of the overlap area, but Orion Downs used to be a much larger property (in common with the other stations which had all been much larger and later subdivided). She also gave this evidence:
There have been suggestions in this court here that Uncle Rusty didn’t name the overlap area and that it’s not our country. What do you say to that?---That he didn’t? Yes?---That he didn’t do it?
Yes?---Uncle Rusty had to cut it short, that’s what I’ve got to say. He was very saddened. I mean, I don’t know whether people realise. I mean, I lived with this old uncle for a lot of years. I mean, he wasn’t my direct blood uncle but to me he was an uncle and he was an elder and he was someone that I respected very highly and he had to cut his country short and that saddened him that he wasn’t allowed – you know, he was told that he needed to cut his country. You know - - -
Who told him that?---Queensland South. People that worked with Queensland South and he told me that it wasn’t right, you know,… so how do you think it made my old uncle feel, and Uncle Bob and those old people when they were told they had to cut their country. You know, they even tried to cut our country right down to the core, to Mount Tabor Station, that’s an absolute disgrace.
128 Ms Mailman recalled that Uncle Rusty was very excited about the hearing in the Federal Court when he gave evidence. She said “because he [Uncle Rusty] goes, got to do the right mate. We’ve got to do the right thing now. We’ve got to bloody well get our country back. We’re not allowed to let them – they can’t take our bloody country. Whatyoumacallit done it last time. We’ve got to get our country back.”
129 Ms Mailman’s first visit to Carnarvon Gorge was during this hearing. She said:
It is a very spiritual thing that comes in connection with all of this, and whether people of the court or people around would like to believe that my ancestors come to me, and even particularly an example, at the Carnarvon Gorge. I wasn’t 100 per cent aware, but I will bring this to the attention, if you don’t mind, to the court, but it happened at Carnarvon Gorge where I was told by my ancestors that all the artefacts that were taken off country, they want them back and they want them back now.
Who took them?---Karingbal. Somebody from – a Karingbal archaeologist or somebody has taken them, or anyone else for that matter that has taken them, because, you know, special powers and different things are left with our objects when our people go, and they’re to remain on country, they’re not to be taken off country. If people had a bit of respect they would leave them on country, because bad things will happen. Bring them back.
So you know where they took those artefacts to?---I have no idea, but my ancestors told me to tell them to bring them back because they want them back, or they’re going to be – they’re going to cop it, that’s exactly the words, they’re going to cop it. So in blackfella law and spirits, if they’ve got any culture they will bring them back; if anything happens to them, they done the wrong thing and they shouldn’t of, so bring them back.
130 Uncle Rusty Fraser had lived at Mount Tabor with Ms Mailman for a number of years after first visiting in about 1975. Uncle Rusty told her all around Rolleston was “our country”, saying:
I did ask question about the Carnarvon Gorge because of the stories that I heard when I was growing up, and he said, “What are you talking about, girl?” He said, “That’s bloody our country, that’s Bidjara country, all right,” he said, “Ain’t no doubt about that.” All of Rolleston, he told me about the places that he worked and where, you know, even my old grandfathers and that worked with him, and it was all our country.
…
Wallaroo; not only Uncle Rusty told me, but I was also told from Uncle Bob that that was all our country, and I’ve never been to Wallaroo, I’ve got to honestly state that, but there’s a massive wall there that goes for a long way, and then later on I was told that there’s about 71 metres of actual rock artwork that’s all around there, so they worked and lived around those places. Warranalla – Warranalla [Warrinilla], I think in my – trying to pronounce it properly, but knowing of that from Uncle Rusty and Uncle Bob is where Lake Nuga Nuga [Aboriginal language], and that’s the home of the – resting place of the Mundagatta, the Rainbow Serpent. They also worked up around Planet Downs and a lot of places.
Did you know whether old Bill Geebung, your great-grandfather, lived and worked on Consuelo and Meteor Downs?---Yes. He did. From what I was told from Uncle Bob, that was, you know – that was Uncle Bob’s grandfather, and they lived and worked – he worked and lived up there, around there for a long time, even in Springsure, around those years, you know, I’ve even got a story, and it’s just sad that haven’t got the full name for the man to the court of my old grandfather, Mailman, you know, riding all the way from Augathella and through the Carnarvon ranges on horseback with a broken arm to Springsure to flog the so-called other Aboriginal fellow that come into our country, and he was apparently the pug of the town of the time, and my grandfather flogged him with one arm, broken arm, and he got back on his horse and rode all the way back home, and said, “Don’t ever come into my country and tell us that this is not Bidjara country.”
131 As to the “Carnarvons” Ms Mailman said:
Well, I call the Carnarvon Ranges over in the gorge, all that is sort of the Carnarvon Ranges, from Augathella right up – one time ago and my old Auntie Jano Mailman went to her grave calling all of that the Great Carnarvon Ranges.
132 She gave this evidence:
You just mentioned then, Lake Nuga Nuga and I wanted to ask you something because you mentioned that you know a story about Lake Nuga Nuga being a resting place for the Mundagatta?---Yes.
Can you tell me whether – is it part of what you know that some of these stories about how places were created, like the ..... ranges, that they cross over a few different groups. So a story might start in Bidjara country but it might finish up in someone else’s country?---No, no, Bidjara country, that’s it. It doesn’t cross over from another country into Bidjara country.
But do you know of other stories where a creation story might go from one person’s country to another?---No, not – I can’t speak for them, I can only speak for Bidjara. You know, Bidjara doesn’t take their stories over into another person’s country. You know, you don’t cross over into another country.
133 Ms Mailman explained that:
what everyone needs to understand is a lot of our old people are getting pretty fragile now and sadly to this day, you know, I reckon our old people, like Uncle Rusty, my mum and Uncle Bob and, you know, old Uncle Fred – all those old people would like to be here, but they’re all gone and a lot of them are fragile and that’s how – but no, I don’t class myself as an elder and I never would until I get old.
134 She also gave this evidence:
I know you talk about Uncle Rusty and Uncle Dusty and Uncle Bob, do you have any special terms that you use for people who are older than you that you use, other than Auntie and Uncle?---No. You’ve got to remember, we’ve moved into white man’s society here and, you know, to be quite polite on it, like, my Auntie is 61 and I know more language and how to live off the land than her because of the things that happened back then. They were told not to. It was just a privilege for me to get to learn to live off the land and track our foods and learn all our stuff, and our language. So, no, I didn’t have any other name apart from uncles and aunties, even to elders of the Bidjara people that were – say, for instance, my mum’s first cousin, she was still my Auntie. So, for instance, I could refer to, like, Betty Wyman. She was my mum’s first cousin, but I still called her Auntie. That’s respect.
135 Ms Mailman said that “to me all Bidjara people can hunt, camp and move around on Bidjara country” without distinction, even though the old people might have had different camps. Also, there were not sub-clans of Bidjara because “I’ve just always thought if you’re Bidjara, you’re Bidjara”. Ms Mailman had not heard of the Karingbal until native title came up at around 1997 when she moved to Mount Tabor. She had not heard of them being a sub-clan or group of Bidjara.
136 Mr Robinson was born in Brisbane in 1946. He is Bidjara through his mother, Nell Robinson (formerly Fraser). His mother’s father was John Fraser and her mother was Ada Lang, both being Bidjara. Uncle Rusty Fraser was his mother’s younger brother. From when he was one Mr Robinson grew up at the Charleville yumba and was taught Bidjara ways by his mother and aunties and uncles. He has been involved in Aboriginal organisations, both Bidjara and general, for many years in many different capacities.
137 In his statement Mr Robinson said:
The Bidjara names for Lake Warinilla is Wongan Wongan, which is known as Lake Nooga Nooga. My Uncle Dusty Fraser told me the story of how Lake Nooga Nooga got its name. He said there were two Bidjara males escorting a white party up a mountain. One Bidjara person was at the back, the other was in the front. The white people were in the middle. Uncle Dusty told me as soon as the Bidjara person up the front reached the top he looked down and saw the lake and all the water so he yelled to Bidjara person at the back of the white party and said in Bidjara language, nuka nuka, meaning look over there. He said “nuka nuka guma”: meaning water, and one of the white people pulled out a note book and wrote down Lake Nooga Nooga.
138 Mr Robinson also stated that:
Planet Downs is Bidjara country. The Bidjara language name for Planet Downs is Gan-Garri, meaning knife.
Kevin Albury’s mother is a woman called Maggie Shepherd who was Bidjara. She first had a child, William Snapper Barnes, that when they separated met up with Albert Albury, Kevin Albury’s father.
Snapper Barnes is a Bidjara ancestor on the Bidjara claim.
…
Kevin Albury mentions his brother named Ambrose Albury. I know Amby Albury and Sam Albury from around Charleville and Augathella. They both spoke Bidjara language and were as far as I know both Bidjara people. In fact, I use to call both of them uncle.
139 Mr Robinson said:
The story goes the Bidjara people came from the stars. Uncle Fred told me this story. From the stars by the Mundagartta, the rainbow serpent. Because every time mum used to see a rainbow in the sky after a storm she used to say that’s good luck. They believe that that’s the rainbow serpent coming back to look after the Bidjara people. They said they come from the stars. Uncle Fred said they used to have visit from people from the stars long before I was born and they never used to worship God they used to worship the people from the stars. That’s the story he used to tell me.
…
It goes to the other wide of Mitchell where the school is and then it goes to Ambi and from Ambi it goes across and takes in the Carnarvon Gorge, Springsure, Clermont, Alpha Barcaldine, and back to Adavale and up here to Bateman Station down around Wyandra.
140 Mr Robinson’s uncles told him about the Bidjara signs, the V, the star and the six toes which are across Bidjara country including at Carnarvon Gorge.
141 Mr Robinson considered that as other tribes, Wadygu and Gunggari, were using Bidjara language and had Bidjara ancestors they were Bidjara. He said the Gungabulla were Bidjara as well and Gungabulla, Uncle Fred Lawton told him, were not a tribe at all but a name created for the sake of marriage to enable some first cousins to marry.
142 Mr Robinson first became involved in protecting the Carnarvons in the 1980s when Bidjara remains were removed and displayed in Roma. His involvement has continued since then.
143 Mr Robinson’s oral evidence ranged widely and did not distinguish between evidence and submission. The following summary focuses on those parts of his evidence relevant to the overlap area and Bidjara culture and laws in particular.
144 In his oral evidence Mr Robinson said that Uncle Rusty’s evidence had to be understood as saying Bidjara country included everything in between the Carnarvon Gorge, Springsure and Rolleston. He also stressed that the Bidjara No 3 claim had been drawn up by Uncle Rusty, Pat Fraser, Joe Lawton and Bernie Mailman in 1996 and included the Arcadia Valley. Mr Robinson himself was not involved in this meeting in 1996. However, after that, Mr Robinson was involved in a meeting in Toowoomba at the Goolburri Land Council office which Bernie Mailman, Joe Lawton, Patricia Fraser and Uncle Rusty attended. This had been organised for all traditional owners by the Goolburri Land Council. Mr Robinson continued:
[T]here was Kuma, Mandandanji, Bigumbal, Kunja, Madigan, Kalali, Mandandanji, Yiman, and Bidjara. And we had all – we had a big map of all the areas they were claiming. Now, we have a fellow from ..... named John Anderson, who chaired that meeting. And John Anderson took them in this room, put the map up and they met there I think nearly all day, your Honour. I said, “When you meet there, work out between the lot of you what your boundaries are.” After they came out of the meeting, Uncle Rusty, Joe Lawton, Bernie Mailman and Pat Fraser, after they came out of the meeting Bidjara number 3 claim was born, because the next year Gulburi Land Council put in an application for Bidjara to claim that area, and it was registered in 1997. Now, there was no Karingbal there, there was no Kara Kara, there was no Garumbul, there was no Wongon Wongon Djangalinju, but there was Gungurri. And that’s our – that’s how the Bidjara number 6, I think we call it, number 6 claim became registered, and that was Uncle Rusty’s involvement in it…
145 Mr Robinson also made the point that:
when Ryan J held a hearing in Carnarvon Gorge, and he asked whether anybody else that opposed Bidjara and want to do – dispute the Bidjara claim. There was no Kara Kara, there was no Garingbal, there was no Karingbal, there was Yiman, there was no Wangan Wangan Jagalingou. It was only Bidjara. Then all of a sudden, all these people are coming out of the woodwork.
146 Mr Robinson noted that Bill Geebung Senior “worked on all those properties and lived on all those properties in the overlap area, like Rewan, Wallaroo, Quantalow, Meteor Downs, and Warrinilla” and Uncle Fred Lawton “when he was probably between 80 and 86, he lived in Injune so he could go and visit country, like Wallaroo, Carnarvon Gorge”.
147 Mr Robinson recalled that:
There was two Alburys. They’ve lived for many years around Charleville and – Charleville and Augathella. They were Ambee Albury and Sammy Albury, and I used to call these old fellows uncles. They spoke the Bidjara language very fluently and I used to listen to them.
148 Mr Robinson also said that:
Amy Miller said she was Wadja. Gavan Breen, when he was interviewing her, Gavan Breen, in his report, said that she was speaking Bidjara. Wadja in Bidjara means to go. Wagigu means gone. Wadjalong means walking .....Wadjalong, “that black fellow is walking”. Wajda is only a word out of the Bidjara language. In the Gavan Breen book you’ve got three Wajdigu. You’ve got Jessie – you’ve got Amy Miller, you’ve got Jessie Turner and you’ve got Fred Taten. Fred Taten is obviously Bidjara; he’s on tape speaking in the Bidjara language. Jessie Turner is my grandfather’s sister… Amy Miller, the other one, is she is Bidjara. Bob Martin and Gavan Breen both make the comment in a report that Breen has done that Amy Miller is Bidjara.
Jemima is Bidjara… Wadja is Bidjara.
149 According to Mr Robinson:
Now, wherever you see that V sign, that’s a signature for the Bidjara Country. Now, in this overlap area, there’s V signs everywhere you go. There’s a six-finger – six toes signs, six finger signs, and the star sign. They’re all over Bidjara Country. They’re like Bidjara signatures. You get them from Charleville to Augathella, to Blacks’ Palace, to Aramac, to Clermont, Springsure, right through them properties. All the properties, Mantuan Downs, Planet Downs, all them signs are there. Bogarella Station, Mount Abel Station, the signs are there. That is Bidjara Country, that’s our signature to Bidjara Country. That’s what Uncle Rusty told me; that’s what Uncle Fred told me; that’s what Uncle Dusty told me. My grandmother’s brother, Billy Peters, he had six fingers and six toes.
150 Further:
I would also like to say that we talk of many times of people visiting Carnarvon Gorge. There’s three Bidjara people born in Carnarvon Gorge: Jim Holt, Ruby Holt and Rita Huggins. And they all lived in Carnarvon Gorge for many years, 10 to 15 years. And Jack – Dr Jackie Huggins, Aunty Rita’s daughter wrote a book about it – “Aunty Rita”, and how she lived and get born in a cave in Carnarvon Gorge and lived in Carnarvon Gorge. And her brother, Jim Holt, and the sister Ruby were all born and lived in Carnarvon Gorge. Not visited, lived there and born there.
151 Mr Robinson understood the reference to neighbouring tribes in the book “Auntie Rita” to be describing tribes who were invited to ceremonies at Carnarvon Gorge by the Bidjara.
152 Mr Robinson agreed that other tribes might also have the same “V” sign as the Bidjara. He also agreed that Aboriginal people might speak the language of another tribe. He said he was not fluent in Bidjara. He knew words and some sentences. He said also that “Bidjara doesn’t give places names if it’s not Bidjara country”. Further, that:
On Wallaroo Station you’ve got 71 metre cliff, and in that cliff there’s about three or four caves, then they got bodies there wrapped up in Budjaroo bark and there’s paintings there and paintings on the walls. Well, you wouldn’t leave that out of your boundary, would you, because they’re your paintings and they’re your bodies, and so you wouldn’t leave them out of your boundary, would you?
153 Mr Wyman is Bidjara on both his mother’s and father’s side being descended from the Frasers, the Lawtons and the Geebungs, his mother’s grandmother being the Bidjara apical ancestor Nellie Combo. He was born in 1966.
154 In his statement Mr Wyman described Charleville, Augathella, Tambo, Alpha and Springsure as Bidjara country. He was told by his mother that his great grandfather, William Geebung, was born at Orion Downs near Springsure and worked on Bidjara country (Babbiloora, Mount Tabor and Carnarvon Station), as did his father Neil Fraser who worked at Babbiloora Station.
155 Mr Wyman has been taught his people’s ways since the day he was born when he was rubbed down with budburra (porcupine) fat which is a tradition for his people. He was taught how to hunt budburra and prepare it for cooking. He has passed this knowledge on to his son, nephews and others.
156 Mr Wyman recalled when he was working for the Aboriginal Legal Aid Office in Charleville a box turned up with a stone in it. They showed the stone to Uncle Rusty Fraser who said it belonged to Carnarvon Gorge. Mr Wyman and Uncle Stan Lawton arranged for the stone to be returned to Graham Walsh at Carnarvon Gorge. Mr Wyman said Carnarvon Gorge is of great significance to the Bidjara people with art works and places of significance to women and areas only women should attend. Uncle Rusty told him the Gorge contained women’s places but did not give him any details.
157 Mr Wyman’s grandmother told him stories about the Warrego River and the Mundagutta, the rainbow serpent, who was the keeper of the waterholes, and about a big scar tree that is still there. He was taught how to catch yabbies and hunt kangaroo. Mr Wyman said in his statement that:
I could hunt porcupine, kangaroo, and emu. If you are on another man’s country you can’t go and hunt on another man’s country. If he knows your there you got to let him know you’re there and that you want to hunt. And if you do get what you’re hunting for you got to share that with that fella or that traditional person. In most traditional societies regardless of what tribe you are you would always have a ceremony and at that ceremony you’d come there with your tucker and your dance and your song and you’d trade off and it might be a 2 or 3 night bloody shindig and then you’re right.
158 Mr Wyman said you see the Bidjara “V” sign all over Bidjara country, at Carnarvon Gorge, Wallaroo, and back towards Aramac and Black’s Palace. The Bidjara’s signs were the “V” sign, the star sign and the six toed sign. He described the Carnarvon Ranges as core Bidjara country. He also said:
My grandfather, Ben Fraser and grandmother, Florence Geebung, They told me where Bidjara country was. It’s that area because that’s where they worked. It was always that area. Up as far as Barcaldine across to Aramac, even as far as Winton out there, back down from Winton and all the way down to Morven, up to Mitchell and across to Injune.
West up to northwest up to Winton. Yeh out to Charleville back up to Wyandra across from Wyandra up to. Go from Wyandra up to Winton and back. Mainly from Barci across to Aramac and then across to Injune.
159 Of his family relations Mr Wyman said “[m]y father’s brothers and sisters, they’re my uncles and aunts on my mother’s side…and their siblings are my brothers and sisters on each side. That’s culture.” He also said:
You obviously can’t marry your blood. Yeh there’s a lot of Bidjara people around but most of them are related. There are different groups of people are Bidjara. So you just can’t marry your direct blood line. You got to marry outside that line. Yeh. You can’t marry your people. There are other families that are Bidjara but like I can’t go and marry me cousins. That’s direct line and that’s not right.
160 Mr Wyman said:
Our people believe that we come from the stars. That’s how we all started off. I learned a long time ago when I was with my grandmother, and I saw this Willy wagtail and I was showing off and she said take that bird back boy. She said that’s a messenger bird. He comes with good news or bad news. He lets you know what things are. So I took this bird back outside and when I went out to see if he was there late he was gone. He must have gone up and wagged it.
There’s also the Goori Goori bird. He’s the ghost bird. When somebody’s sick or dying or they’ve passed away. He’ll come to let you know, make a certain sort of noise, like a curlew.
161 According to Mr Wyman his totem is red kangaroo. On his grandfather’s side they are carpet snake.
162 Mr Wyman understood enough Bidjara language to know what was being said. He taught others what he knew. He also taught respect for elders.
163 In oral evidence Mr Wyman said he was never told about neighbouring tribes when he was growing up but he knew that to the south-west were “Cullalee, Boonthamarra, Wakka Wakka, Cooma” and to the south of Mitchell was Gungarri.
164 Mr Wyman did not consider himself an elder. He explained:
You’ve got to earn that right through your association with the knowledge, your customs, your beliefs and I’ve got a few more years to develop although I am – I know my rules, I know my laws, I know my connection to my country, I know the bush hunting, the bush tucker ..... activity stuff. I know that.
165 When asked to describe how the boundary of the Bidjara No 3 claim had been created he said “[w]e taken – we taken – identified land, landscapes, formations, rivers, creeks, ranges, ridges, hills”.
166 Mr Wyman described Uncle Rusty Fraser “as the last – more or less, the last remaining man that knew that stuff” (that is, tribal knowledge). Mr Wyman returned home after the other old people had died for that reason, because Uncle Rusty was the last person with knowledge remaining so Mr Wyman “had to get back home to keep my knowledge going, to re-affirm it, to reiterate stuff that I was told and taught”. At that time Uncle Rusty was living with Myra Fraser, Mr Wyman’s cousin, after he moved from Mount Tabor where he had been living with Keelen Mailman.
167 Mr Wyman did not believe any Bidjara person had greater or special rights in any part of Bidjara country, although he felt personally affiliated with Babbiloora where his uncles had worked whereas the Geebungs and Gadds were more associated with Springsure.
168 Ms Fraser was born in 1963. Her father was Archie (Dusty) Fraser (referred to by many as Uncle Dusty), a brother of Uncle Rusty Fraser, and a descendant of Ada Lang and John (Jack) Fraser. Her mother, Nellie Fraser (formerly Munn), was Mandandanji.
169 Ms Fraser’s grandfather Jack Fraser was born at Babbiloora in 1887 and was very strict and knowledgeable about Bidjara laws and customs. His traditional totem was the red kangaroo which he inherited from his mother Eliza Peters. Ada Lang’s totem was possum which was passed on to Ms Fraser’s father, Dusty Fraser. Ms Fraser’s father was also a stockman and worked on numerous stations. Ms Fraser recalled:
Wellclose, Bronte, Ambathala, Cungella, Mansion Downs, Mangalore, Alice Downs, Sommariva, Angellala, Babbiloora, Bogarella, Minnie Downs, Macfarlane Downs, Allan Dale, Fairview, Nive Downs, Consuelo, Mt Playfair, Wallaroo, Rainworth Canoe, Milo…
170 Of the locations mentioned Consuelo and Wallaroo are in the overlap area.
171 Ms Fraser said in her statement that:
I was taught from a young age about our Bidjara culture, traditions and language. It was important to my father to pass on the Bidjara traditional knowledge and to teach us about our customs. Although Dad never taught us to speak the Bidjara language, he always used Bidjara words (when naming plants, animals and special places) before using English words.
He taught us to track and find traditional food like Echidnas (Badbirda), Sand Goannas (Dhagany), Witcherty grubs (Dhambun), Wild Turkeys (Bun-gany), Yams (Guwa), Wild Orange (Yiga) and Wild Limes (Walbu). My brothers were taught a lot more than us girls as we were not allowed to go hunting or special places with Dad. Dad would pass information on to Mum and Mum would teach us girls, if certain customs required women’s business.
…
My mother (Nellie Melba Fraser) never knew about her traditional culture as she was removed when she was a little girl. She knew that she was a Mandandanji woman and her traditional totem was grey Kangaroo. Mum learnt more about Bidjara traditional culture through Dad’s teachings. We have inherited the totem of the grey kangaroo from our mother but identify with Bidjara’s culture and connection to land.
172 She also said:
Dad would not work outside his country, nor would he practice his traditional culture or hunt on another tribe’s traditional land. He believed in the punishment of the spiritual ancestors if you entered another tribe’s traditional country to hunt.
…
I lived most of my young life learning and living our culture on stations with Dad. As a very young girl, me and my siblings would take off from the station homestead in the early hours of the morning and not return until sunset. My Mum would never worry about us as she knew we could live off the land. We would dig for yams or eat the wild fruits and berries when we got hungry. I remember when I started school, I used to talk about eating and finding our traditional foods (as I thought everyone was the same as us), but they didn’t know what I was talking about and looked at me strange.
173 According to Ms Fraser’s statement:
My father gave me the most important thing in my life, my identity to my culture and my connection to my traditional land. Unlike a lot of Indigenous Australians, our family was lucky, we got to live and practice our culture.
174 Ms Fraser also said:
I was told by my father and my uncles through their stories, that Carnarvon Gorge was a very significant place to the Bidjara people; I grew up knowing just how special the Carnarvons are and will always dispute any other traditional connection. My father worked as a stockman on many of the stations mentioned in the overlap, properties including, Mantuan Downs, Wallaroo Station, Arcadia Valley, Warrinilla and many more in that area.
175 As to Carnarvon Gorge Ms Fraser said:
My father told us a story of the Mundagutta and how it created the Carnarvons and how its tracks could be seen from a plane when you flew over it. I have seen these tracks from a plane and it’s just how my father described it, it looks like a large snake carved it tracks as slid over the Carnarvons.
My Great Aunt (Jessie Turner) who use to stay with our family on some occasions, once told me about how and why the sandstone mountains of the gorge raised up and why a certain bird can be heard screaming through the Carnarvon Gorge. She said that a long time ago, the Bidjara people camped near a large wooded area, a little girl was playing with some bark off the trees, playing all day made her very tired, and she ended up going to sleep under some old bark, mean while the rest of the tribe were heading off to another camping area. The little girl was left behind and when she awaken, she cried as her mother, family and tribe were gone, she ran through the bush searching for them and her mother. When her mother realise she was left behind, she ran back to find her child, but it was too late as the little girl was no longer there. The mother screamed her name for days and would not leave as she knew her child was lost around there somewhere. As her body fell to the ground, she began to grow and grow until she turned into very tall mountain cliffs, so she can see where her child was, she can be seen today, the Cliffs of the Carnarvon Gorge and it is said that when wind blows a certain way through the Gorge you can hear her call the child’s name. Her child was running so fast through the bush (to try and find her mother) that she grew wings and turned into a special bird (don’t remember the name of the bird as I was only 4 at the time) her wings carried her up above the trees to search for her mother, the special bird can be heard today as it sounds like a child screaming.
When I was very little, out on the stations, my Dad used to tell us the story of the Goori Goori Bird when we used to look up and see the milky way.
176 Ms Fraser visited Carnarvon Gorge in 1981 on the same trip as Floyd Robinson. She said also:
My own experience was when I camped there in 2002, I felt such a spiritual connection and can feel my Bidjara ancestors speaking to me, the feeling of belonging is so strong when I am up there. More recently I stayed with Keelen at Mt Tabor and did a tour of the Carnarvon area.
177 Ms Fraser gave this evidence about Lake Nuga Nuga:
There are a number of places over the Overlap area that are to my knowledge important to the Bidjara People, especially Lake Nugga Nugga. I know that Mundagartta crawled across the land, leaving Carnarvon Gorge and Lake Nugga Nugga. I heard he created the Maranoa.
178 In oral evidence Ms Fraser explained that after the native title legislation was introduced:
They showed up one day. There was Uncle Reggie – Uncle Rusty, which is Reginald Fraser, Bernie Mailman, old Uncle Lenny Mailman, Joe Lawton, and they all showed up at the Land Council. I was actually in the office. When they came in and spoke to me they were talking about this Native Title claim, that the Bidjara were putting in a claim. And they sat around and they were – they showed me a claim which was a little bit different to what the claim is today; it was actually a lot bigger. And they were saying – Uncle Rusty said that they had just come back from talking with the elders to get this claim in, and then there was a bit of discussion about, you know, what they were claiming and why it was important. Then a few weeks later they actually came back because Bernie informed us that the Gulburi Land Council wouldn’t accept the claim because the claim was too large. And I remember being in the room with Uncle Rusty and old Lenny Mailman and Bernie and Joe Lawton, and Uncle Rusty went off. Like, he used some really bad terms on why people were cutting his country. Him and old Lenny Mailman actually got into an argument because Lenny said, “Well, you know, that’s plenty of country,” and Uncle Rusty made the point, “That’s not the point. You know, they’re telling where my such and such country is,” you know, “No one tells me where my country is. I know where my country is.” And, like, we had to try and settle him down and say, “Look, if it’s too big we will just look at what the core areas of country were, you know, make sure that we covered areas that were important to the Bidjara people.” So Uncle Rusty, Bernie Mailman – I don’t think Lenny went out the second time – but those three headed out and they looked at how they were going to cut the Native Title claim in half. But I think when Bernie – the way Bernie explained it, that they looked at the areas that were important to them and they made sure all that area was covered. And when they came back they were actually doing up the claim, because I remember sitting in the office and they were talking one part of the claim where they were drawing the line up. It had something to do with Exhibition Range.
…
I remember clearly because it was Expedition Range, but I said Exhibition, and like, they just cracked up because I called it Exhibition. Because I was trying to ask Uncle Rusty which side, because he was sort of talking, and Joe was talking, and Bernie was trying to do that lines, and I said, “Which side of Exhibition?” and they all started laughing, and it was actually Expedition Range. So yes, the map was actually created. They looked at it and they were quite satisfied that it included the significant areas within the claim, and then they looked at – because they’ve lost – they thought that they had lost time by going out again they were behind the eightball, so we decided to – me, Bernie and Joe, which was a core representative of families without – within the Bidjara people – we actually became the applicants and got the claim lodged and registered. And that claim was lodged in January 1997; it was accepted in 17 February, 1997. And then we went to an authorisation meeting in March ’97.
179 Ms Fraser also gave this evidence:
Do you know what areas were important to the various people that were interested in putting on that claim?---Well, I think they – well, I know the Carnarvon Gorge was, Lake Nuga Nuga.
Was it important to someone in particular or - - -?---No, it was important to the Bidjara people.
…
[Y]ou know, I was there when they were explaining this side of the Expedition Range, or you know, it went up around Lake Nuga Nuga and all this. I mean there were certain points or values or things that it went to.
180 At that point Ms Fraser had not heard of the Garingbal or Karingbal. She did not hear of them until about 2003. She had not heard of the Garingbal or Karingbal being a sub-clan or group of the Bidjara. As she put it:
Like I said, you know, we grew up being taught Bidjara stuff. We weren’t taught about the other tribes. We weren’t told who our neighbouring tribes were. I don’t know why but dad never told us.
181 Ms Fraser said her brother, Lionel Fraser, was involved in training the Bidjara dancers with Uncle Rusty. She explained that:
Lionel – because Lionel was involved with National Parks; he had quite a lot to do with the Carnarvon Gorge. When there were certain meetings or whatever, they would take the dance group – troupe up there. Uncle Rusty used to take them to areas around the Carnarvons, just to practise their dancing and that.
182 She said her father had worked in the overlap area so she knew it from when she was a child. Since the native title era she had been involved in cultural surveys of the area as well. She said that she had been to Carnarvon Gorge twice before this hearing:
First time I went there with Cheryl Lawton. It was our plan that we would actually go – because we went to Mount Moffat – it’s just a goal, as Bidjara people – we wanted to get back to country, and just visit the significant areas in our land. We went up – I’m sure it was in 2002, because when I was up there I was talking about – like talking to the ancestors and that, and I know for a fact – well, I was concerned about the overlap that we had at the time with Gunggari– not Garingbal, it was Gunggari. And they were the only group that was identified around that area as well as us.
183 Ms Fraser considered Breen to be confused when he talked about Jessie Turner nee Fraser (her grandfather’s sister) being Wadjigu. Ms Fraser said this was her “meat” or totem. She said that the tapes of Uncle Kruger Fraser talking about his meat:
[I]t’s so confusing and it’s very complicated, and he was trying to explain that if I was talking about someone, or talking to someone, and that person was the same totem as me, then I would use a certain name for them. But if someone else was speaking to them and they weren’t the same totem as me and they were different, they will use another name as well to describe that person, because in reality, we didn’t have aunts, uncles or brothers or sisters. It was all in relation to the vision and the totems, and that’s how they tried to explain what the relationships were.
184 When asked about Bidjara customs and laws Ms Fraser said:
● I was taught actually about how to clean an echidna, which is a budburra in our language, …
● I’m the totem of the grey kangaroo…inherited from my mother. I understand – like, my great-grandmother, Eliza Peters, who is a red kangaroo, grandfather Fraser was red kangaroo. Because he married tribally he had to marry either a sand goanna or a possum; he married a possum. All the kids then inherited Ada Lange’s totem which was possum, and what they were supposed to do was – traditionally, if they still lived the traditional life – they would have married back over into the red kangaroo, which was Fox division, but by then, you know, impact of non-indigenous people through Australia was quite great. So I do understand how the totem works and how we inherit it;
● The skin had four totems, four meats, but there was one name for that division and then there was names for those four totems, so – but I’m saying my totem when I inherited from my mother, but there is a whole – another complex system above that;
● I know the red kangaroo and the emu had to either marry the possum of the sand goanna;
● I’ve never seen people actually buried or wrapped in bark but I was informed [by her father and Uncle Rusty] that a part of our culture was, you know, when there was a passing, that they were actually wrapped in bark and put in tombs in the sandstone;
● My dad was pretty strict when it came to passing on culture. There were certain things that he wouldn’t tell girls but he would actually inform my mother how it all worked and mum would tell us, where dad would actually tell my brothers, but yes, when it come to the girls, we missed out on quite a bit because we didn’t have a Bidjara woman at our access like some people were;
● But there’s one story [her Aunty Jessie told her] about the gorge I think got my attention because it was actually about a little girl but all – it was very hard to understand but the outcome of the story was I know this little girl when to sleep under some bark and then the Bidjara people walked off and then the little girl woke up and she couldn’t find the tribe because they had moved on, so she wandered off looking for the tribe and by the time the mother realised the child was gone, she ran back to find the child but the child had already moved on and them mother turns into these big cliffs, or this huge cliff and the child turns into a bird. A bird that sounds like a child screaming and I remember her saying that if the wind was blowing a certain way that you could hear the – when the wind blows it’s like the mother calling out for the child and like I said, I can only – I remember bits and pieces but I understand the what his name of the story because I know the cliff walls were white because for the child to see the mother, but like I said, you know, she used a lot of Bidjara and being young, but it was in relation to the gorge.
185 Ms Fraser explained also that:
But the impact is over 200 years old, you know, the non-indigenous impact, you know, they’ve had the big changes. So indigenous people, like Bidjara changed, they modified themselves to the suit, you know, to make sure that we continued connection. Like, we were – we were moved off country. There was strict rules on whether we could speak language or, you know, carry on our traditions. We had the – our people were put under the Act, they couldn’t – they weren’t allowed in this because everything was kept secret. Like you said, we were lucky because dad never left country, he grew up on it and we practised and lived it every day. We had cattle and sheep but we also – he ensured we had bush tucker.
186 For these reasons the system of meats and skins was no longer followed.
187 When asked about her father not working outside his own country Ms Fraser gave the following evidence:
I remember once my dad got a job in Cunnamulla. We – I remember this because my dad and mum had a big fight over it and dad’s fight was pretty full on… it [Cunnamulla] was off Bidjara country …Now, the reason the fight was because we were starving, there was no food in the house and he was offered a job and he wouldn’t take it and it was because – he told mum it was bad luck. It wasn’t right for him to work in some other tribe’s country, so that’s how I know that’s true.
…
[Y]ou’ve got to remember that they were pretty strict and had a different attitude towards culture than what we did. They were brought up the old way and like, for them it might have been a law or something that they couldn’t go outside that country. Like, that was the old ways and around dad’s generation that was still happening, like, even through Uncle Rusty and them, but in reality the next generation, yes.
…
…Dad said that he had the best reputation as a stockman. The best black stockman in, you know, the Arcadia Valley so they – you know, land owners will tend to look to the people that have worked for them.
188 The Cunnamulla region is to the south of Charleville between Charleville and Bourke.
189 She gave this evidence as well:
What I want to suggest to you, which I think I already have, but just to be clear is that when your father was working on those stations, I want to suggest that he wasn’t working within Bidjara country, but was working not too far away; do you agree or disagree?---No. I disagree with that, because I know what my father said, and like I said if he could actually be physically violent with my mother and let us kids starve because he wouldn’t work in some other country, there’s no way that he would just slip over the border or someone else’s country to do it.
190 Ms Fraser knows Bidjara words but cannot speak the language because “it was like they weren’t allowed to speak it, but they did – everything was secretive”. Ms Fraser agreed that the fact that a person was speaking Bidjara in a particular location did not necessarily mean that the location was in Bidjara country. For her own part she had grown up only knowing Bidjara words.
191 In respect of other country she said:
…from my point of view, when I enter someone else’s country, I speak to the spirits and ask permission. I’m not saying that I know who they are. I just talk to the ancestors of that country.
192 In respect of women’s places Ms Fraser said they could be recognised by the carvings on the walls but would not describe the carvings as “it is sacred business, but there are certain symbols on the caves that indicate that it’s a birthing place or a sacred place that belongs to women”. She said Floyd Robinson’s photographs of a women’s place “wouldn’t have been allowed because women’s business is strictly for women’s business”.
193 Ms Fraser believed that no particular Bidjara person spoke for parts of Bidjara country. Every Bidjara had rights in Bidjara country.
194 Mr Mailman’s statement of 21 February 2008 was admitted into evidence, Mr Mailman now being deceased.
195 Mr Mailman said:
I am a Bidjara man. I am 74 years old and was born on 9 February 1934, at Augathella. My father was Dan Mailman and my mother was Cissy Geebung. My Great grandmother was Liza (a contemporary of Hector Thompson and other named apical ancestors of the claim). On my father’s side, my grandfather was Charles Mailman (also known as Miller) and my grandmother was Lucy Long. On my mother’s side my grandparents were Nellie Combo and Bill Geebung. My parents and grandparents were all born on and lived in Bidjara Country and were Bidjara People. I know this because throughout my life I was told this by them and also that they have been told by their parents and grandparents to whom it had been passed by previous generations. I was also told by them that I was a Bidjara man and throughout my life and I have been treated as such by all my relatives and community in which I have lived. Further, I was told by them that the Bidjara People operated as a cohesive society in the claim area for countless generations and we are the same People as before us and must carry out the same traditions as that society.
196 Mr Mailman explained that:
I say that the Bidjara People have a deep respect for their Elders. This is because Bidjara law requires that Bidjara people respect their elders. I say that from my personal knowledge of Bidjara society and my observations of non-Bidjara society, in which there is not the same level or nature of respect.
Bidjara People try to resolve disputes and friction internally by consulting elders such as myself rather than dealing with police and the judicial system wherever possible. The issue will be raised with some elders who will then consult the other elders. Decisions are by consensus and will be conveyed verbally. Whilst past punishments for breaches of Bidjara Law involved physical punishments as we are now prohibited by white law from doing that, the punishment is generally social ostracism. Generally parties act in accordance with the decision of the elders.
Our law is specific that there are certain sites that should not be visited by women and certain sites that should not be visited by men and certain sites that should be avoided by all people. Our law also requires that people not kill any animal or bird except for the purpose of consumption, it is against our law to kill animals for the sake of it.
197 Mr Mailman also said:
a) I grew up speaking the Bidjara language fluently as we spoke it in our family and my extended family and I know that they also passed on this knowledge to their descendants. For my part I taught Keelen Mailman the Bidjara Language.
b) The rules about marriage have evolved over time. Originally the Bidjara people were divided into sub groups. However that has now evolved into an interlocking system of family groups. The rules we have as to marriage remain much the same as in the past. If there is a breach of those rules then it is be dealt with by social ostracism. I know of some examples where people have married wrongly and I note that they then subsequently indicated they believe they came from a different group so as not appear to be in breach of the Bidjara Law. In the Carnarvon Gorge there is a two finger sign painted on the walls. I was told by my uncle Fred Lawton that this was a Bidjara sign.
c) I note that I have been asked on occasions to provide a Bidjara language name to the children of Bidjara People at the time of their birth. They then take on their registered Anglicized name and adopt the use of their own name for every day purposes.
d) I have some ability with Aboriginal Art using ochre and traditional methods. I depict the stories of the Bidjara People. For example, I have depicted the story of MANDAGMARRA as told to me by my father and my grandfather and taught by me to my nieces and nephews.
198 Mr Stapleton was born in 1949 at Rockhampton. He now lives at Lenore Hills near Bauhinia and Rolleston because it is the closest place to Karingbal country he can live.
199 Mr Stapleton described his family history in these terms:
My mother, Olive Beatrice Stapleton (nee Albury) was born about 1917 or 1918 on Consuelo Station. Mum’s father was Albert Albury (Jnr) and her mother was Maggie Shepherd, who was born at Planet Downs Station. She was a Kanalou woman. Albert Albury Jnr was born in about 1880 on Consuelo Station. My mother’s father’s father was Albert Albury (Snr) and he was born on Consuelo Station and was a full blood Karingal man.
Mum’s father’s mother was Maggie Suy/See and she is recorded as being born between 1830 and 1860 near Springwood. I was told by the old people that Maggie Suy/See was a full blood Karingbal woman and that she was born near Springwood Station, not Springsure as the white records show.
200 Mr Stapleton said that most of his knowledge about the Alburys came from his mother and his uncles Kevin and Tim. According to Mr Stapleton:
To be a Karingbal person you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country. The Karingbal people have to accept you as part of the Karingbal mob.
…
I believe that to be a Karingbal person you have to be descended from the old people who are from here. You can follow either side, mother or father, but to have a say about Karingbal country, you have got to have that connection, that is Karingbal blood connection.
201 Mr Stapleton said in his statement that:
The boundary of Karingbal country was told to me by uncle Kevin Albury. There is a map attached to this statement at ‘CLS 1’ where I have marked the boundaries. You have to follow the water the right way, the Brown River and the Comet Rivers and Clematis Creek, they all flow in together. They are all our boundaries on the east side. You also follow the Dawson River down south to the gap at Lonesome National Park. The southern and western side of Karingbal country is the Dawson River into the Carnarvon Range.
The northern part of Karingbal country is the point where the Comet River, north of Rolleston meets the Orion Creek. The Orion Creek is the boundary on the north west side and where it stops you then follow the Freitag Creek. We don’t call it the Freitag Creek we just know it as the creek that runs on the west side of Meteor Creek. I know Meteor Creek well as it flows from the mountains in the Carnarvon National Park, right through the north western side of Karingbal country and through Deepdale Station, Springwood Station and Meteor Park Station, Albinia Station and ends up at the Comet River north of Rolleston.
You have to know which way the water is flowing, whichever way the water flows is important. Along the top of the mountains on our eastern boundary is the water table. The water that flows east off those mountains, that is someone else’s country, The water that flows west off those mountains, that is our country. Then on the western side you have the opposite – the east flowing water means our country – the west flowing water means theirs. I don’t know anything about those countries – I only know about our Karingbal country.
202 In respect of Carnarvon Gorge Mr Stapleton said:
I have my own stories for how Carnarvon Gorge was created and I teach those stories to Karingbal people. I have to follow what the old people told me. The old people said that when people travelled through Karingbal country, they needed permission and that includes the Bidjara. I was told the Bidjara were on the west side of the Carnarvon Ranges. The Kanalou are on the east and the Iman are down the Lonesone National Park way in the south east of our claim area. Wadja are on the other side of Blackdowns Tablelands. The Gunaloo is on the other side of the Expedition Range. The Kara Kara people live around Springsure way.
People did come over the ranges for trade and ceremonies. I know this from the corroboree grounds like Tyson’s Nugget. Tyson’s Nugget is up on Meteor Creek. I know that Karingbal used to travel to other places for ceremonies. Uncle Tim told me that because he went to a big hill down at Bauhinia Downs Station with a flat top.
203 In respect of Lake Nuga Nuga he said:
Right from when I was a kid, we used to go out on Karingbal country a lot. We would just go look and camp. Old Tim would tell you where things were and you would go looking. There’s a big camp up at Lake Nuga Nuga. Mum and Tim told me about that one. We still go camping at Lake Nuga Nuga.
204 Mr Stapleton explained that the Karingbal language had largely been lost because:
My mother told me that her father Albert Albury (Jnr) was worried that if anyone, especially his children – spoke in ‘lingo’ that they would be taken away to a mission. By ‘lingo’ I mean their Karingbal language. Mum could still speak some of it with the old people like aunty Daisy (Freeman) but they did it quietly when white people were not around.
My brother Freddo (Frederick) and I still know some words Mum always used to use, but growing up we would be careful to make sure we only used words from ‘lingo’ when there were no white fellas around. Now I teach these words to young Karingbal kids and I use them every now and again when I am talking about Karingal country or things.
205 As a Karingbal person, he said:
Soon as you cross into Karingbal country you have to sing out the Karingbal words ‘Yumba Dgirami.’ This lets the old people know you are coming back. It means “I am back home” and that you belong there.
206 He also said:
● The spirits of the ancestors are all over Karingbal country. They are around the old camping grounds and they are in the emus and some other birds. That is why we call out when we come onto Karingbal country after being away and why we respect the emu by not touching it. The spirits expect you to do the right thing on country by protecting it and not letting miners and others destroy important places and sites. If we do not look after our places then the spirits will punish us or our family. That is why I get upset about people wanting the mining money but do not go out and look after their country. I go out because I want to make sure the country is looked after. It is not about money.
● Old Tim used to tell us about the eungies and the Mundagartta. Kevin knew about them too and I know he would pass on those stories to his family.
● If people from other groups want to come onto Karingbal country, then they should ask first. You usually ask the elders, you usually know who it is in a particular area that you should speak to. You know this because they are your neighbours. If you don’t know then you ask the people who it is you should seek permission from.
● In the old days if you didn’t ask you could get hurt by the people or spirits. The spirits are very strong in Karingbal country and they will still hurt you now. They can make you get sick or even make you die. They can mess with your head and make you go mad.
● The Mundagartta is the giant creator serpent that made all the creeks, rivers, swamps, lakes, hills and gorges all over Karingbal country. We have to respect the Mundagartta. We are not allowed to damage any lakes, waterholes and swamps where the Mundagartta lives now. This is another reason why me and other elders have to protect our special places because if we don’t the water will dry up.
● The old people told me that the ground was grumbling and Lake Nuga Nuga went dry in the 1800s and 1940s because the Mundagartta was angry. Uncle Tim told me that the Karingbal people ran away from the lake because the Mundagartta was angry. The whitefellas thought that Lake Nuga Nuga went dry because the Americans had bombed it. But our old people knew better.
● After the Mundagartta created the Gorge and that’s where he ended up there in the Lake. He created the Lake and that’s where he is now. Old Tim told us about the story, he was told it as a young kid.
● We are still monitoring who is getting close to people so people do not marry too close. If they do not listen to the elders we growl at them. People get punished by the spirits too if they marry too close.
207 Mr Stapleton referred to other things he had been told when growing up including:
● There’s a hill at Lake Nuga Nuga that we are not allowed to go up. Mum and Kevin they didn’t tell me why they just said, ‘Never climb it.’ I don’t think it has a name, but it’s just a big brown hill near the lake. It’s a good landmark for the lake. I will show the judge when we take her out to Lake Nuga Nuga.
● The old people told us that Rougemont Gorge is where the big massacres were. There is another massacre site at Graves End waterhole on Rougemont Creek, that’s the one they wrote about in the book ‘Dung on your Boots.’ I’ve been there, I’m the only Karingbal person allowed up there by the Serocold Station owner, old Jack Fletcher. There’s a steep cliff and at the bottom is a cave with paintings and hand prints. That’s where the white fellas drove all them Karingbal people off the cliff. There are sixty-eight bodies up in that cliff, they were taken there by Karingbal people to be buried after they were driven off the cliff. Old Tim told me about it but Kevin told me how many there were.
● Karingbal people should be able to be buried on country. I reckon we should still have that right. That’s why Kevin Albury wanted to be buried at Lake Nuga Nuga. Because of all the rules they’ve got now, he couldn’t be buried at the Lake so he got burnt first, the white fella way, and then we took his ashes back to spread around the Lake so he was in the place he wanted to be.
● It’s important to come back to Karingbal country to be buried so our spirits can return to the country. Our spirits come back to our country as an emu…We are not allowed to touch the emus or their eggs, it is a Karingbal rule. When we die, Karingbal people come back as emus. There is no way in the world that I would ever harm an emu. I teach this to the younger people. Everybody who comes onto Karingbal country is given an induction. They are told all about the emus and they are told not to touch them or their eggs or feathers. They are protected by Karingbal people. Emus can be seen everywhere on Karingbal country.
● Mum always said, that if you see a crow acting queer, you can always tell someone has died. Crows are always around when things are happening, for example, when I am getting cranky with someone on the phone I always see a crow. I feel as though Kevin is sending this crow to remind me of a promise I made to him before he died.
208 Mr Stapleton was keen to pass on his knowledge but concerned that only trustworthy Karingbal people should receive it. He said:
● I tell younger people stories about our Karingbal country and our people. When we leave this place that is where the stories are to stay. They are not to be shared with everyone else, unless I have given them special permission to tell somebody else.
● It is very important for me to be able to take younger people out so I can show them things. I feel this is one of my roles as a Karingbal elder. My Karingbal elders taught me and now I have to teach the younger ones.
● In the past, our special places have been damaged and destroyed by people who should not be there. I do not want the locations of our burial sites falling into the wrong hands. It is my role as an elder to protect our burial sites from being damaged and destroyed. I will keep the knowledge of their location secret. I will not reveal the exact locations of our burial sites.
● I keep an eye on people, give them a bit of knowledge, test them, see what they do with it and who they tell. If someone approaches me who wants to go out and see things, who is not ready, I say ‘Maybe in time.’
● Knowledge will be passed on down to both males and females, On Karingbal country there are a lot of female sites that males cannot know about. There are a lot of male sites that a female cannot know about. That is why it is so important that Katrina Cutting and Lavinia Saltner get to know these sites so that they connect to them and keep that female knowledge going.
● I take responsibility for caring and protecting these places on Karingbal country. I do this by visiting, caring for and protecting these places. I make sure that the location of these places, burial sites in particular, are kept secret. I have cultural restrictions placed on me about who I can talk to about and show these places to. Knowledge of their location is only made known to people who have been chosen and tested and proven that they can be trusted.
209 He described the burial of his Uncle Kevin’s ashes above Lake Nuga Nuga:
A white lady named Bloss Hickson who was trusted by uncle Kevin was asked to take his ashes up to a cave on the big hill at Lake Nuga Nuga. The cave looks right over the lake. It was Kevin’s request that he be buried out at the Lake. This is the closest we can get to doing it the proper way like the old people did because of all the restriction whitefellas have about burying people.
210 Mr Stapleton said:
I have a right to be on Karingbal country, to speak for and make decisions about things that happen on country. I have this right because I come from the old people who used to walk Karingbal country long before whitefellas turned up. I have a right to be buried on Karingbal country just as my ancestors have done.
211 In oral evidence Mr Stapleton described a place visited on the view as part of this proceeding near Moolayember Creek (which runs through the overlap area) which had a cave with burial remains in it before road works were carried out and the remains removed. He knew about this cave and the burials before the roadworks as his Uncles, Kevin and Tim Albury and Andrew, had told him about it. He said that above the cave there were paintings. He was not happy that the bones were removed to the Brisbane Museum. He described Lake Nuga Nuga as a sacred place for him. Uncle Kevin Albury wanted to be buried on country and the only way he could do so was to be cremated, which he did not want. His ashes were returned to a cave above Lake Nuga Nuga. Lake Nuga Nuga is also the home of the Mundagarra which still lives there. There are many caves in the hills surrounding the lake which were used for burials. Mr Stapleton said Consuelo Lake in the overlap area was also very special as all his old ancestors were born there. You could still see the scar trees around the lake. This knowledge was handed down by his mother and Uncle Kevin who had been told it by their elders. Albert Albury Snr was born there in the early 1800s. Mr Stapleton felt responsible for protecting this area. Mr Stapleton said also that he drank medicine made from the gumbi gumbi bush every day at home.
212 Mr Stapleton did not consider the Millers to be Karingbal. He said to be Karingbal you had to have a Karingbal parent and the Millers did not. He also said you had to know Karingbal ways and know the country, although he later accepted that children had to be taught these ways and about their country but were still Karingbal. He said he stopped being part of the Karingbal No 2 claim because the Millers were not Karingbal and none of them knew the country and he had to protect the country. He agreed that Kevin Albury was the senior Karingbal person until his death and had taken Sharlene and Marlene Leisha and Carol McLeod (descendants of the Millers) to Wallaroo on the overlap area to see sites but did not accept that Kevin was passing on traditional knowledge to someone that he considered to be a Karingbal person. According to Mr Stapleton when the Karingbal No 2 claim was being prepared he talked to Uncle Kevin and said the descendants of the Millers were not Karingbal and Kevin responded that he had been told by the solicitors the Millers could be part of the claim. Mr Stapleton considered that the fact that there had been marriages and other relationships between his family and the Millers (including one in which he was involved) proved the Millers were not Karingbal as such relationships would not have been allowed and his mother, who was strict, did not condemn his own relationship with one of the Millers. The rule his mother told him was that “you can’t marry in amongst your own people”. He did not know how it was that Albert Albury and Maggie Suy See married when they were both Karingbal but noted they came from different ends of the claim area. He thought Amy Miller was Wadja. Mr Stapleton accepted that Kevin Albury, as the elder at the time, had included the Millers in the Karingbal No 2 claim even though he, Mr Stapleton, did not agree with that decision. Mr Stapleton said:
…what he [Kevin Albury] said to me is that’s what he was told by the solicitors and the anthropologists could sort it out. So when you’re an Aboriginal mate, and you are not very well educated, you sort of rely on the people that you think have got the knowledge and they can direct you in the right way.
213 He also accepted that he had signed an affidavit saying he accepted the Miller’s ancestor, Jemima, as Karingbal because Kevin Albury had told him he had to sign it.
214 Mr Stapleton said he had not been part of the Garingbal Kara Kara claim as the claim included too many wrong people. They had had to come up with the name Brown River people because of the earlier Garingbal Kara Kara claim and the Karingbal No 2 claim but they, the Brown River people, were the true Karingbal or Garingbal people.
215 Mr Stapleton did not accept that his Uncles Amby and Sam Albury spoke fluent Bidjara. He also did not accept that his ancestor Maggie Shepherd was Bidjara, saying she was Kanalou.
216 When asked about his culture Mr Stapleton said:
● you have to be the right people for the right Country. Blood. You’ve got to know your country, you know your traditional laws and customs;
● you respect a lot of things on our country. The emu is our spirit. When we die, we come back as an emu. We go out there every year to the lake ..... or whatever you call it, 12 months after they die. We go out there and spend a couple of nights out there, we go camping up – all up through the gorge with no roads, probably none of you [Bidjara] people have ever been… I know them, but I’ve got to be careful who I tell them to;
● when you’ve got knowledge of country, you know everything about the country – all up the back country, where there’s no body ever been hardly…Where all the burials, all the big camp sites are up the back, where their tracks go through to the other side [the Deepdale area]… tracks they took for their hunting at different parts of the year, when they go back through to October Swamp;
● [in respect of burial sites] “[w]e go back and look after them and make sure they’re closed”
● [his mother told him] I couldn’t marry anyone close to our group…You can’t marry in amongst your own people [and he had never heard of marrying across moieties or the kinship system] but most of us were brought up with a bit of respect. Anyone older, they were called aunty, uncle;
● in the old days, there was mainly – most of the Karingbal married into the Kanalou. That was at a ceremony down at Bauhinia
● [Karingbal cannot kill or eat or touch any part of the emu because emu are their totem];
● [he] “always call out” to the old people [when on country to] “[l]et them know we’re from there, we’re coming home”;
● [eungies are found at Lake Nuga Nuga, which his mother told him about, but he does not go near them];
● you can’t show any place to anyone that’s not a Karingbal and “it has got to be someone you can really trust that’s not going to tell anybody because we’ve lost that many bodies from up in that country now, it’s not funny. Namely Grahame Walsh and then you had the Yanks that took them all out of the hill beyond Consuelo”.
217 Mr Stapleton said that adopted persons could be “reared on the country, and taught everything, [but] they still can’t speak for country”. Thus, while adopted persons could be Karingbal and part of a claim “[y]ou’ve got to be blood to talk for your country”. Mr Stapleton said he always had known the Freemans were Karingbal but they had not been involved in the claim until more recently.
218 Mr Stapleton said “in our claim at the moment, there’s not too many people know the country, the sites and we have, more or less, classed an elder as someone who knows all the sites, the burials and everything else” and he and his brother Fred had been taught these things back in the 1960s. Mr Stapleton had come back to Karingbal country, at Consuelo Station, to work with his Uncle Kevin in about 1964. The station was split up in about 1966 or 1967 and Mr Stapleton left to work at Warrinilla and then Mount Pleasant and Meteor Park which are all on Karingbal country. In about 1970 he went to work in New South Wales. He returned to Karingbal country in the 1980s for a while, over near Springsure. He left again for Brisbane and Melbourne and elsewhere for work in the 1990s.
219 Mr Stapleton believed Carnarvon Gorge was in Karingbal country but was shared with other tribes for ceremonies but did not know for sure because “I could not say yes or no to that because I don’t know who went there” and “[t]here’s no evidence of who done what there” but he had been told by Uncle Tim Albury and others that “a lot of tribes met up there”.
220 Mr Stapleton explained that when he said to be Karingbal a person needed to know Karingbal ways and country he meant older people. Younger people who were Karingbal by blood were Karingbal but they had to learn Karingbal ways and country. He said:
When you’ve got knowledge of country, you know everything about the country – all up the back country, where there’s no body ever been hardly… Where all the burials, all the big camp sites are up the back, where their tracks go through to the other side… I mean through the Deepdale area… And where they – tracks they took
for their hunting at different parts of the year, when they go back through to October
Swamp.
221 Mr Stapleton did not know whether being born on country gave a person any additional rights. However, to be Karingbal what was required was to be of Karingbal blood rather than to be born on country.
222 Mr Stapleton was born in Rockhampton in 1948. In his statement, he said the following things about his family background and Karingbal roots:
My mother Olive Beatrice Albury, was a Karingbal woman. Everyone called her ‘Beatty’. My dad was Charles Leslie Stapleton and he was a non-Aboriginal man from Capella.
…
My grandfather Albert Albury Jnr died before I was born. Albert Albury Jnr passed on cultural information about Karingbal country to his children including my mother Beattie. Mum was a great story teller, she passed knowledge on to me and my brothers and sisters.
…
A lot of what I know about my family background was taught to me by my mother. Also I learnt some information when I was growing up mixing with aunties, uncles and cousins. Some of the information like the dates of when people were born, I have learnt during the work we have all done on our native title claim. Mostly Mum told me where people were born. Being from Karingbal country was important and Mum was always able to tell who was from Karingbal country and who was not.
…
The Millers and their descendants are not Karingbal, they are Wadja and they do not know anything about our country. My brother Charles had a child with Amy Miller’s granddaughter, Gloria Leopard. If Gloria had been Karingbal my mother would have said something about it when Charles and Gloria got together, because they would have been marrying too close. Mum was very strict about these things. Mum approved of their relationship.
…
Old Tim told me that Mick Freeman and Albert Albury Snr were born on Consuelo Station around the same time. They grew up and knew each other as children. They may have also been related way back as they are both Karingbal.
223 He recounted his experiences of Karingbal country and those of his family in this way:
I had been to Karingbal country a few times when I was younger and then when I was 11 years old, I came back to Karingbal country with my father because I had run away from school. When I was about 11 years old I started working on the stations as a stockman. I lived and worked on Serocold Station and Wildhorse with my father. Those stations were east of Consuelo and on Karingbal country…We used to camp at an outstation on Consuelo. Consuelo Station is on Karingbal country and we would mostly camp around the station as we worked. I worked on stations on Karingbal country until 1969.
I worked on Warinilla Station on Karingbal country in 1963. I knew the Alburys had an old camp on Warinilla Station at the end of the lagoon. Uncle Amby told me about it and the Range that runs through the place and a cave on Warinilla Station. Uncle Amby told me that this cave was important to old Albert (Albury (Jnr) and he would look after the cave by putting planks in front of it to stop the bones falling out.
There was the Albury’s camp at Springsure too behind the Caravan Park in the late 1920s. Mum and her brother, Kevin went to school there because they couldn’t go to school in Rolleston because they would not accept Aboriginal kids there.
Uncle Tim Albury told me that according to an old Aboriginal man who used to live and work with him, the Albury’s country is also Deep Dale Station which has a different name now but was part of Meteor Downs and before that the much larger Consuelo Station in my grandfather’s day.
…
There are lots of places on Karingbal country where we would camp and the old people told us they had always camped there too. There is a big waterhole on Meteor Creek between Consuelo and Springwood Stations where the old people have always camped. My mum, uncle Tim and uncle Amby told me that. We always stopped at that place whenever we go out on country. There is also a big lagoon at Meteor Park Station where uncle Kevin Albury told us was a big camp. People were always camping at Lake Nuga Nuga. We still go to all these places and check them out by making sure they are being looked after and we go and camp or have a picnic and stop for a while.
Mum told me how her Dad, Albert Albury Jnr took all his kids to the Carnarvon Range and Moolayember to get away from the authorities in case they were taken away. Before this time Karingbal people would go up to the Range that runs into Rougemont Gorge and use it as a lookout to see if the white authorities were coming.
…
Karingbal families used to camp on Lake Nuga Nuga.
When Kevin Albury died he was cremated. Family members and friends were each given some of his ashes to spread around the Lake. A white lady named Bloss took her share of Kevin Albury’s ashes up to the top of the Mountain at Lake Nuga Nuga. Kevin wanted to be cremated so that he could be resting on his Karingbal country and because of the difficulties of burying people outside of cemeteries he couldn’t be buried on Karingbal country so putting his ashes on country was the next best thing. We generally come and camp at Lake Nuga Nuga at least every 12 months in October for the anniversary of Kevin’s death.
224 Mr Stapleton outlined the boundaries of Karingbal country in these terms:
The Brown River runs along our country on the eastern boundary until the Clematis Creek. At Rolleston the Brown River becomes the Comet River and goes north. Our boundary follows the Comet River up to junction of the Orion Creek and then it follows the Orion Creek south west and then west. On the western side of our country the Orion Creek finishes up and then boundary follows the Freitag Creek. I didn’t know the name of that Freitag Creek until I looked on a road map, I just know it as the creek to the west of Meteor Creek that is on Deepdale Station. I know Deepdale Station very well and go there often.
On the eastern side of the Comet River, Brown River and Clematis Creek is where Kanaloo are from and then the Wadja are further east and north east. Right in the south east side is where the Iman people come in.
The old people told me that when tribes were visiting they would set up their camp on the side of the river to show where they were from. I remember the Miller’s would set up their camp on the Wadja side of the Brown River on Kanaloo country. The Millers are Wadja people. Wadja country is east over the Expedition Range, 40 or 50 miles from Rolleston. Old uncle Kevin told me that the boundary between Karingbal and Kanaloo is the Clematis Creek, which runs into the Brown/Comet River heading north west.
The Karingbal boundary follows the Clematis Creek south into the Ranges then follows the ranges south until it hits the Dawson River. The southern boundary of our country follows the Dawson River right to the Carnarvon Ranges and the mountains along there. West of the Carnarvon Ranges is Bidjara country.
The north western boundary of Karingbal country toward Springsure is at the bottom of the Staircase Range where the water runs back our way along Orion Creek. We were told by the old people that is how our boundaries work, we just know which way the water flows and we know it is our country this side. The people who speak for the Springsure way are Lindsay Black’s mob. I don’t know the name of their tribe.
225 He described some spiritually and historically important sites on Karingbal country, saying:
Anyone can go on the west side of Rougemont Gorge, on the Rewan Road side. The women’s side is on the east side, on the other side of the mountain between Consuelo Creek and the Ranges to the east between the Carnarvon Highway. Uncle Tim told me that the men weren’t allowed to go on the woman’s side. On the eastern side of Rougemont Gorge is where the women were buried in caves.
…
October Swamp is another important place for Karingbal People. The old people would camp around there. Mum, uncle Tim and uncle Amby told us that there was a big fight there in the old days when some of the Iman came and stole some Karingbal young girls. They told us that the old people got those girls back in a big fight at Eagles Nest swamp. Eagles Nest Swamp is on Warinilla Station on Karingbal country.
…
Old Tim showed me some engravings on rocks near Rocky Creek on Consuelo Station. It looked like a noughts and crosses symbol on the keyboard. Uncle Tim said this symbol meant it was a good area for hunting. Uncle Tim told me that the old people used a bush to poison the fish. The old people didn’t use fish nets. I don’t believe that the noughts and crosses symbol has anything to do with fish nets like some people say it does.
…
Carnarvon Gorge and Lake Nuga Nuga are the main sites for Karingbal People. Carnarvon Gorge is a big place where people would camp together and it is a meeting place for tribes.
…
Graves End waterhole you get to by turning right at Rewan Station and turn off near Rougemont Gorge. Uncle Tim told me to never swim in that waterhole because there are dead bodies from the fight between a number of Murri tribes who were put in the waterhole. If you went in, or swam in the waterhole, you might be grabbed by something, be dragged in by the dead. Uncle Tim Albury told me that they had big corroborees near the waterhole. I am not sure which tribes were fighting but this place is on Karingbal country. I was 12 years old when I was told these things by Uncle Tim in 1960 and I had just started working on Consuelo Station. After he told me this I wasn’t game to go in the water. I will not swim in the rockholes where I know the spirits have been or are living. The old people told me to respect those places and not disturb the spirits.
There is another waterhole on Rocky Creek, which is on Consuelo Station in the Carnarvon Ranges. I used to muster up that way from the time I was 11 to 13 years of age. Uncle Tim told me not to go into this waterhole either. According to Tim the old Murris said that you shouldn’t go into the waterhole. Tim told me this because I was family and I was there at the water hole with him. There was no specific punishment that I knew of if someone did go into the water hole. You just wouldn’t do it. Uncle Tim was very strict and he wouldn’t let kids sit and listen to grown ups talk.
There are beautiful springs in the hills just behind Nianda Station, which used to be part of Consuelo Station, on Karingbal country. Uncle Tim said that the tribes used to camp in the hollows in the hills and they would go down to the swamps to collect swan eggs, water lily bulbs and fish. The swans would make reed nests that floated on the swamps. I was taught by the old people that you don’t eat the swans but you can get their eggs. Tim had been told this and shown this and he passed it on to me.
In the 1800s Murris were herded off a cliff like a mob of cattle, this was over at the back of Mount Carnarvon, it was Rougemont Gorge. This was done by white men. This is part of our general Karingbal knowledge that the old people have told us.
Although it is not on Karingbal country I was told that there is a meeting place at Bauhinia Downs where Murris would come from different groups for months and it took them four or five months just to travel there. The old people told me it was a ceremonial place for all the tribes. Uncle Tim went through the law at Bauhinia Downs.
There are burials right along the cliffs in most parts of Karingbal country. In some of those places you can see the long hair sticking out. As kids we were told that we could not go to burial sites as some people had died from Leprosy. When we got older we were taught to protect those burial sites and make sure they are not being disturbed. Our old uncles would show us where they are. If we see a burial site that is damaged we will fix it up.
…
There are burial caves all over Karingbal country but I do not want to give too much detail about their locations. The reason for this is that we have been taught by the old people to respect those places and protect them from people and animals disturbing them. We know of white people who have taken some of the bones away and that is not right. …
226 With regard to dreaming stories and spiritual beliefs, Mr Stapleton said:
Carnarvon Gorge is where the Mundagartta came out. He originally came out of the mountains. White men gave him the name Rainbow Serpent but Karingbal people call him the Mundagartta. This is how Carnarvon Gorge was created. The Mundagartta came down through the Gorge and wormed his way through the Gorge and created it as he went.
The Mundagartta created the Gorges along Carnarvon Creek and headed north east to the Comet River then went to Lake Nuga Nuga. As the Mundagartta travelled from Carnarvon Gorge east to Lake Nuga Nuga he was creating the creeks and gorges. He created all the Rivers and Gorges and afterwards he settled at Lake Nuga Nuga. He flapped around and made the lake and to this day he is still there under the Lake protecting it. That is why people are not allowed to swim in Lake Nuga Nuga because the Mundagartta is in there. I was only told what the Mundagartta did in my own country. Tim, Amby, Kevin and my Mum always talked about the Mundagartta. We were always told to respect the Mundagartta and not to do anything that would harm him. I get worried about the mining and what it may do to the Mundagartta.
The Mundagartta created all the creeks, rivers, lakes, hills and gorges in Karingbal country. I have been taught this by the old people like my mum and uncles and I teach this to the younger Karingbal generations. It is important they they have this knowledge about our country.
…
You can’t swim in Lake Nuga Nuga because you might wake up or disturb the Mundagartta. It is a sign of respect not to swim in the lake, but you can swim in waterholes that are on the creek that runs into it.
…
The old people told us that we can’t eat emu as this is our spirit animal. We believe that if we die we come back as an emu. To kill an emu would be like killing our ancestors. I believe that the emus are our old people, and you aren’t going to feel good if you think someone is killing your old people. …
…
The owl has a special spiritual significance for Karingbal people, I am not sure what it is but the old people told us not to touch them as they are a special bird for Karingbal people. I was told that owls are not to be killed or eaten. I don’t know of any other animals we are not allowed to eat other than the swan and the emu.
Eungies live in the mountain and they are little spirits. As they are coming down the mountain they knock rocks loose and the rocks roll down the side of the mountain, this is how you know they are moving around. They have a horrible stinking smell. The Eungies are only around at night. I have never known of them to harm anyone but they can torment people. Les and Tim Albury’s wives both went mad after camping where the Eungies were at Expedition Range on the way to Baralaba. I haven’t heard them myself, but people have told me about them. Mum used to always tell me about them. Mum told me that they used to have big fires going all night to keep the Eungies away from their camping area. She said they seemed to like the dark, the big fires kept them away. They seem to be around near waterholes. Murris always say that the Eungies are around rock holes because the animals around there seem to get spooked.
227 Mr Stapleton also described certain Karingbal traditions, in particular the role played by elders:
Uncle Tim told me that other tribes would always get permission to travel through an area and when you are travelling through someone else’s country you need to know good places to get food and water. You also have to be careful about where you are going so you don’t go to a place that may be dangerous if you went there. So you have to ask or you could get into trouble. Like that hill at Lake Nuga Nuga that my mum told me to stay away from. I haven’t been up the hill there so I don’t know what would happen. I think you might get sick or lost if you went up the hill. I tell the young people not to go up there. Kevin Albury also told me about this mountain and that we can’t climb it. The mountain has caves and there are probably burials in there as well.
…
It is a Karingbal rule that families must make decisions within their own families. Me or my brother Charlie can speak up for our Albury family. We are not allowed to speak up for other Karingbal families. The elders of each family have to make decisions first and then we get together and make decisions as a Karingbal group later. Each family has to make the decisions for their family like…
…
Letting the elders speak is the proper Karingbal way of doing things. I was taught never to speak up when the elders were not [sic] present, like mum, uncle Tim, uncle Amby or uncle Kevin. We had to let them do the talking. That is why I couldn’t be around when the young people and the lawyers went to Carnarvon Gorge because they would have sat back and let me do the talking.
…
To become an elder you have to have knowledge passed down from your own elders. It used to be that the eldest surviving son in the family would be the one who was passed cultural knowledge. …
In the old days women were never elders. They had their own things to know and teach about birth, food gathering and other things. Women didn’t speak about some of the law business – they would let the men make all the decisions about the country. The women were more on the food side of things and bringing up the kids. There are no women elders in our family and there wasn’t in the past. Women had no say about law business. Other families have to make decisions about whether women are elders or not, the Albury family can’t tell them what to do.
Now it is up to my brother Charles to pass on his knowledge to the next males who will come through and be elders. This could be one of his nephews, cousins or even one or more of his grandsons. Charlie has no sons. Charles has two or three grandsons, the oldest is in his twenties. I am helping with passing on what I know to the younger generations.
228 In oral evidence Mr Stapleton said that he did not:
have the privilege of learning our language. The only one in our family was Tim Albury, he could speak five different languages, but after that there the government officials, if you got caught speaking language and that you were sent to a mission and none of our family was ever sent to the mission.
229 He said to be Karingbal you did not need to be born on country “as long as you – it can be claimed back to them old people or – from Karingbal country”. To be an elder, though, you also had to have knowledge of country. An adopted person could be Karingbal - “they can be in the group, but they sort of can’t speak for country and that, make decisions or speak for country”.
230 In terms of handing on knowledge, he said:
we like to see the people be passionate about the country before we show them stuff and at the moment we are getting some people that are very passionate about the country and some people ain’t, so we’re just, sort of, sorting out which ones are passionate about the country and that.
231 He said he had learnt from Tim Albury that the boundaries of Karingbal country were set by the waterways. From the top of the Carnarvon Range, where the water flowed east, that was Karingbal country. To the west was someone else’s country.
232 He described a cave as very important to Albert Albury as follows:
…because there was a burial ground up over at October Swamp from the Warinilla Swamp there – from the lagoon there where they had the camp. And when I went there in – I’m pretty sure it was 1963 I worked there – and Mackay was up on the cliff there and the – well, someone – there was a log put across the front of the cave to stop the bones from falling out. And I was told that Albert Albury put that up there and used to look after that cave.
233 However, he thought all Karingbal had the same interests across all their country.
234 He said the Millers lived on the Wadja side of the river near Rolleston although it was really Kanalou not Wadja. He said:
Well, I used to knock around with all the – I work with all the Millers, and Tim told me they come from the – from further down the river from Rolleston there on the – down towards Comet, down that way somewhere, and Gerry and that – you know Gerry and Brian and Maxine, I work with them all and they never ever claim to be Karingbal people.
235 About the Freemans Mr Stapleton said:
And I had a lot to do with the Freemans, and Charlie Freeman, Daisy Freeman – and I can’t think of the other old girl – Ivy Freeman: they all called my mother “auntie,” and I don’t believe it was true respect, because they were all around the same age… They knew about them, but they spoke to Esmay Freeman who didn’t want to go on her father’s side; she wanted to go on her mother’s side. And no one spoke to the other Freemans out at Woorabinda, and they wanted to come on the father’s side.
236 He had heard talk that Carnarvon Gorge was a meeting place but said “[w]hat Tim Albury reckoned was more of a spiritual place: the Carnarvon Gorge. And the big meeting place was over in – near Bauhinia Downs”.
237 Mr Saltner was born in 1958 in Rockhampton. He lives in Laidley because there he can obtain the disability services needed by his children. His mother was Olive Beatrice Stapleton, a Karingbal woman (also the mother of Fred and Charles Stapleton). His father, Norman Saltner, was a murri [Aboriginal person] from Mundubbera.
238 In his statement, Mr Saltner underlined his family’s ties to Karingbal country in the following terms:
When I was with mum, no matter where we had been, we would always come back to Springsure because uncle Ambi, the second youngest brother of mums, was still alive then. So we would come back and spend time with him. His full name was Ambrose Albury. I knew him as Uncle Ambi. Mums brothers were Les, Tim, Ambi and Kevin.
When we lived in Rockhampton (Rockie), Mum would always come back to Rolleston to be near Karingbal country. She liked being around Rolleston and would be happy there.
We all keep coming back to Karingbal country no matter where we live, I still do as it is important to check out the country to make sure nothing is going on with it that we don’t know about it. My brothers are the same. Charlie lives close so he can check it out. He will let us know if there are any problems. Freddo does the same whenever he gets a chance.
239 He described Karingbal country thus:
I have been taught by uncle Kevin and my brothers about Karingbal country. Karingbal country is all those stations like Consuelo, Meteor Downs, Springwood. Deepdale, Warrinilla, Rewan Stations and down the Arcadia Valley. The boundary is the Comet River that changes its name to the Brown River at the bridge at Rolleston. The Brown River goes down and then the boundary follows the Clematis Creek to the ranges. Down on the western side is the Dawson River and the Carnarvon Ranges and then the boundary goes back up toward, but not all the way, to Springsure near the Staircase Range.
240 Mr Saltner recounted the process by which he has learned about Karingbal country, and the means by which he is passing on that knowledge to the next generation:
I came up to Rolleston when I was 13 years old. I was at school in Rockie then and Mum was cooking at Meteor Downs on Karingbal country and she got me a job there with the farmers. I was horse mad so they gave me a job as a stockman. That’s when I started going to Deepdale Station and around Tyson’s Nugget. This is the first time I started going out onto Karingbal country mustering.
…
Because I was about 10 years younger and had to stay with mum I didn’t get the same chances as Charlie and Fred to learn things from uncles Tim, Ambi and Kevin or any of them other Karingbal people who were working on the Stations in Karingbal country. Mum used to try and tell me stuff about things, but I was rebellious, when I was younger. When I had a family of my own I started getting really interested in learning things about our traditional country and really got into it. Fred and Charlie are teaching me things now.
…
Charles tells me about Karingbal country and teaches me about different sites. Charlie has told me the most about Karingbal country. He takes me out on country. I also know a few things about our country from what other people told me from when I had been working on the Stations in our Karingbal country.
…
Even though I had been to my country lots of times I hadn’t had the opportunity to bring my whole family out to country and teach them about their country all at once and for a long period of time. So one weekend in 2009 we took Charlie’s four wheel drive and my bus on a big trip. Charlie took us right up around Lake Nuga Nuga and up around Carnarvon Gorge, back down to Serocold Station and all these places around Karingbal country. We did a big circuit to introduce my kids and the whole family to Karingbal country. I also showed them where a few places were and stuff that I had learnt when I was a kid.
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A mob of us Karingbal people went camping again in late October last year to our country. We went to Carnarvon Gorge for 4 days and Arcadia Valley for 3 days during the school term. This time Edgar Freeman and his kids came too. There were about 15 Karingbal kids camping out on their country and learning from us about their culture and country. The Moura school mob came too.
…
We go out on country all the time checking it out. The trips I talk about above are just a few. We would have been out on country at least 100 times in the last 2 years. We went down to Lake Nuga Nuga to commemorate uncle Kevin’s passing in October 2011. We do this every year to remember his passing.
241 Mr Saltner said he believed that Karingbal country is where the spirits of ancestors are, explaining that:
When the time comes, I would like to be buried on Karingbal country near Lake Nuga Nuga. I never really thought about it before until we buried old uncle Kevin on Karingbal country and spread his ashes. I had a special feeling when I was at Lake Nuga Nuga.
…
Even if you are not buried on Karingbal country your spirit still returns to your country. My mum was buried in Rockhampton but I know that her spirit is back in Karingbal country.
Strangers to our country like other murri people, miners, the government or pastoralist should always come and ask Karingbal people for permission before they do anything on our country. If people are driving through our country or are staying the night in Rolleston, or something like that, they don’t have to ask. But if murris are going to camp, hunt or take some wood or something like that, they should ask permission from the elders.
…
The old people are spirits in our country and they know what we are up to. When we go down to our Karingbal country we know the spirits are there and see what we are doing. If we do the wrong thing by our country and don’t look after our sites and special places then the spirits will know. We have to respect the spirits of the old people and protect those sites and make sure they are not damaged. I have taught my children this.
242 About the Mundagartta dreaming he said:
The old people told us that the Mundagartta is the creator serpent that made all the lakes, rivers and creeks. The Mundagartta created Carnarvon Gorge and is now resting in Lake Nuga Nuga. We have been told by the old people that we are not allowed to swim in Lake Nuga Nuga because that is where the Mundagartta is living now. I was also taught that the hill behind Lake Nuga Nuga is somewhere to be avoided and you cannot climb up there. I have told my children not to go up the hill or to swim in the Lake. It is alright to fish in Lake Nuga Nuga.
243 He identified his totem, and referenced certain spirits:
My mum always told me that the emu is the Karingbal people’s special animal because the spirits of the old people go back to country and are in those emus. Wherever we go on Karingbal country we see the emus and it makes us feel good because we know the ancestors are there to greet us and keep us safe. We could never hurt or kill an emu because they are our old people. That is a number one rule with Karingbal people and I have taught all my kids this rule.
Other birds will have the spirits in them too sometimes to send living Karingbal people messages. When Uncle Kevin died Charlie saw a crow and knew it was Kevin’s spirit and Charlie took photos of them. We have to look out for these signs from birds to let us know what the spirits are doing.
My mum told me about the little hairy men called eungies. They are cheeky little buggers that will roll rocks down hills and scare people. They live around the hills.
244 Mr Saltner said he had been told by his mother a long time ago, before the claim, that the Millers did not belong to Karingbal.
245 When asked about his learning of Karingbal ways Mr Saltner said it was:
To have a better knowledge of the country until you get more knowledge and that from the elders and that and know to protect your burial sites, land use and all that.
246 He did not know Karingbal language, any song or dance or dreamtime stories. He showed his children sites, “the way the old people used to travel, what routes they used to take” and camps.
247 He said that there had been a debate within the claim group about adoption and that Kevin Albury wanted it to be blood only and “that was a rule that Kev made”. As such, an adopted person could not be Karingbal. He continued, saying:
[W]hat my mother told me was that the girls follow the father’s side if they’re both Murri, so they strengthen the father’s bloodline… Because to us the woman is the strongest bloodline in the clan
248 Mr Saltner agreed that because he is a boy, he followed his mother’s side, which is Olive Beatrice Albury, and she was a daughter of Albert Albury junior who was the son of Albert Albury senior and Maggie Suy See. Maggie Suy See was Karingbal and thus Albert Albury junior and his daughter are both Karingbal. This meant his sons followed their mother’s line and were not Karingbal. He said he had been taking his son Raymond to see Karingbal sites but Raymond did not speak for country. He gave this evidence:
Well, same rule. The boys would follow their mother. Like I said, all my kids coming out of my country.
Yes, they all come out on your country?---Yes.
But they’re not Karingbal?---Well, in my way they ain’t, no.
I’m sorry. I’m missing this?---The boys in my way, my boys are Karingbal.
So you’re not following the rule that your mother gave you?---I don’t think I’m breaking it either because I’m not sharing sites and that.
I’m asking you whether your sons, whose mothers do not appear to be Karingbal, are also Karingbal?---Well, they class themselves as Karingbal.
And do you class them as Karingbal?---Well, they’re my sons and I do but, like I say - - -
Right. So - - -?--- - - - they don’t talk for country and they don’t go to burial sites or anything like that.
Is that just because they’re young? What’s going to happen when they become and and you still think they’re Karingbal, will they be able to speak for country?---No.
They won’t be able to speak for country?---No.
Ever?---No.
Sorry?---I said yes, never be able to speak for country. Going to be up to the girls and my family that is.
Okay. But what I’m wondering is how you class them as Karingbal if your mother tells you that the proper way was to follow your mum’s side if you’re a boy and your father’s side if you’re a girl, if both parents were Murris? You’re not following the rule your mother gave you, are you?---I’m not breaking it either. You see, the main thing about it is if you’re full Karingbal you can speak for country - - - Yes?--- - - - and you get to look after the burial sites and that, where they don’t. Only my daughters.
249 Mr Saltner said he had a lot of involvement with the Freemans. He said:
There was a lady, Ivy, and a lady, Daisy – well, they used to call me cous, but because they was older and, like, wanted the respect - that anyone older than me I call uncle or auntie.
…
Well, the Aboriginal way – you would have to call him [Edgar Freeman] Grandad, because his mother calls me uncle.
250 He did not regard Rolleston as Karingbal country, as it was Kanalou.
251 Mr Freeman was born in Townsville in 1977 and lives in Rockhampton. He is Karingbal through his mother, Esmay Freeman, who is Karingbal through her father. His father, Lewis Saunders, is a Wakka Wakka man.
252 Mr Freeman said the following things about the spiritual dimension of Karingbal country:
Elders should speak up for country it is not for younger people to do it. I will leave it up to my mum, uncles and my mother’s uncles Charles and Fred Stapleton to talk about country. I love going to Karingbal country. I took my kids to Lake Nuga Nuga and Carnarvon Gorge camping recently with some elders and learnt a lot. We are constantly learning about our country. My mum and the other elders tell us about those stations where the old Karingbal ancestors were born, lived and worked like Consuelo, Rewan and Warinilla Stations.
Outsiders should ask permission from Karingbal elders, like my uncle Wallo, if they want to go hunting, camping or take something from Karingbal country. It is best to go out on Karingbal country with a Karingbal elder because the elders know where burial places and sacred sites are. These are places that should be avoided and if you don’t know and go to the wrong place you can get into trouble and get sick.
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If people come on to Karingbal country and they are being tormented by the spirits you can smoke that person with sandlewood and you talk to the spirits, explaining who that person is and where they come from. It is like introducing that person to the country and to the spirits of the country. The elders will still do this. My mum sprinkled us with sandlewood talcum powder to get rid of those evil spirits when were acting up. The old people will smoke houses with sandlewood when things are going strange or if something bad happens there.
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My uncle Wallo (Anthony Freeman) told me about someone who took some wattle from around Carnarvon Gorge. One week later the grandmother passed away and then another week later the mother passed away. Uncle Wallo said it was spiritual punishment for taking things off country. It is a strict rule not to take things away. I always teach my kids, nieces and nephews this rule. If people don’t follow that rule their whole family can be punished, not just the person who has done the wrong thing.
253 He said there were many spirits on Karingbal country, and described what he had learned about them in this way:
Old people always said that if you muck about the spirits of the old people will come and visit you. I have had spirits of dead people come and visit me when I was young a couple of times. I have been taught what to do by the old people to settle the spirits. I just call out to them and ask them what they want and tell them who I am and that everything is ok because I am a Freeman and they know me.
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Another rule I was told by mum and my uncles was not to do certain things at night or you will stir up the spirits. At night you can’t sweep and stir up the dirt, you can’t sing out and you can’t talk around the campfire if you are a younger person. Only the elders are allowed to talk around the campfire and you have to be quiet and listen. We are also not allowed to whistle at night because it brings in spirits.
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When I was a kid I was riding my horse around Woorabinda late at night. I saw a Tall Man near an old camping ground near the old gum tree there. The Tall Man came out of the shadows. I knew that Tall Man’s spirit was warning me to stop riding around late at night.
A tall man is from the old spirits. He is like a medicine man. Sometimes he is good and helps keep bad spirits away. Sometimes he is bad and punishes you if you are bad. If I muck up on someone else’s land their spirit man will come after me. They can make you sick or if you are really bad they could kill you. Our Tall Men do the same to people who muck up on our country.
I have always been taught by those old people that we cannot harm the emu. Uncle Raymond Saltner told me that the Karingbal word for emu is nuun.
…
Emus are old Karingbal people travelling around checking things out on their country. We see them a lot and if there is a funeral they always turn up for one of our relatives. If I hit an emu with my car I would talk to the emu and say I was sorry and that I didn’t see it and hope I didn’t get sick. The emu is the important spirit bird for Karingbal people.
I have always been told by the old people like my mother and her brother and sisters that the night owl is an important bird for the Freeman family. The night owl is our family’s totem. We are not allowed to touch that bird either.
I have been taught that if I hear a curlew squeal at night it is a sign that there are bad spirits around, something bad is going to happen or bad news is coming.
If my mum sees a willy wagtail she won’t travel, won’t get in the car. I wouldn’t go long distances if I see a willy wagtail.
Eungies or jingardjis are little hairy spirits and the old people always said that if you played up they would come to get you. People use the 2 words and they mean the same thing. They live everywhere around hills. I have 2 of my own and I will give them to my sons when they get older. …
254 Mr Freeman said this about the Mundagartta:
The old people have taught me about the Mundagartta that is a spirit snake that made all the waterways, gorges and hills on Karingbal country. Uncle Wallo told me that the Mundagartta lives in swamps and permanent waterholes. Raymond Saltner taught me that the Mundagartta lives in Lake Nuga Nuga. He lives there now and we have to protect him. The Mundagartta will make the lakes and rivers dry up if people do the wrong thing by the Lake there. Even if other people go there with you and do the wrong thing the spirits may come after you and torment you for not stopping those people doing the wrong thing. If someone else does the wrong thing you have to talk to the spirits and you might get punished too if you didn’t look after your land properly.
255 He emphasised the authority of elders, saying:
My mum always taught me that our elders are the ones that make all the decisions about family and country. This is what I was taught when I was growing up. Elders are the most important people to ask about ways of doing things and country. If I was not sure about an area, I would go and check with the elders like uncle Wallo, uncle Les Freeman, uncle Charles Stapleton and Freddo Stapleton. Elders should be asked first and not the young people. You should only talk to young people when there are no elders around to ask.
256 Mr Freeman explained the Karingbal rules of marriage thus:
I have been taught by my elders that I am not allowed to marry my relations. I was taught about who I was related to from my mum and her family so that I knew who I could not marry. We tend to marry outside the group to avoid marrying wrong way. My mum and the other elders are strict about this and people get growled at if they are getting too close to relations even if they are distant relatives. It is just not allowed.
257 He also described various hunting techniques, and said:
The first kill is important to a young boy. There is a special thing you have to do. You have to get the meat from the first kill and give it to your parents. My first kill was a carpet snake. I was about 10 years old. I went out with my Uncle Douglas Bairns night hunting and we came across it. I killed with a stick. I was very proud and took it home to my mum. She was very happy.
I do plenty of hunting and fishing. It is a rule that you don’t kill anything that you don’t eat. It is important that I provide food for my family and for elders who can’t get it themselves.
258 Mr Freeman had decided to learn about Karingbal ways in November 2011 but before that his grandmother had shown him the Gorge, Lake Nuga Nuga and some other spots in Arcadia Valley. He always knew he was from that area as his mother was Karingbal and had told him in 2011 to stick with her. Until November 2011 his mother and he identified as Wadja. His blood let him be both as his ancestors came from those places, although he also said to be Wadja you had to be born on Wadja country and he was not. His mother had not told him why she wanted now to identify as Karingbal. His elders were his mother and his Aunt, Dianne Evans. Uncle Wallo was an elder too, as were Charles and Fred Stapleton, and he would call them grandfather.
259 Ms Evans was born in 1950 in Woorabinda and continues to live there. Her father was John ‘Sonny’ Hill. He and his mother and his grandfather were Karingbal. Her great grandmother was Myra Sullivan, a Wadja woman.
260 In her statement, Ms Evans said the following about her family relations:
We always knew the Albury family as Karingbal people. My old aunties Daisy and Ivy, Grandad Bulbara’s daughters, were very close with Beattie Stapleton (nee Albury). My father, Sonny Hill, always said Beattie Stapleton was his auntie and we called her granny or Nana Beattie. We have always known the Alburys as Karingbal kin. Out of respect, we would always call the old people from the Albury family auntie and uncle. It was the same the other way round. The Alburys would always call the Freeman elders auntie and uncle or nanna. All the Alburys and the Freemans were born on Karingbal country in the old days on the stations like Consuelo, Rewan and Warinilla Stations.
Auntie Myrtle Holt (nee Hill) was born on Consuelo Station. Auntie Cora was born on Warinilla Station. I was told by the old people that many years ago when Nanna Effie was little black trackers came after Karingbal people and my great grandparents nana Myra and grandfather Mick hid her in an ants nest with some other children so they wouldn’t be shot. Nana and Grandad ran away and hid somewhere else.
261 She outlined the bounds of Karingbal country and the locations of its various neighbours in this way:
I was taught that just because you are born in one place does not mean you come from there. You have to come from the ancestors who walked the land to be from that country.
We know where our Karingbal country is. The old people always told us about those old stations like Consuelo, Rewan and Warinilla Stations. Those old people were born there and lived and worked there. Consuelo Station used to be a big station that now has been broken up into a lot of small ones. We go down there to the new stations like Springwood and Deepdale Stations and that is where the old Consuelo Station was too. We could be walking around anywhere where our old people were born. It makes us feel safe to know the spirits of those ancestors that were born there are in the country. We know some of their names but there are many generations of Freemans that have been living on Karingbal country for thousands of years. We know that Carnarvon Gorge and Lake Nuga Nuga are important sites for Karingbal people and always have been.
Old Kevin Albury told us that there was a big camp of Karingbal people at Rolleston. He said that Wadja and Kanalou people would come over to the camp at Rolleston for a corroboree. There were other places they would meet up too.
Up on the eastern side of the Expedition Range are the Wadja. In between my Karingbal country and the Wadja is the Kanalou. The Iman people are in the south-east of our Karingbal country, south of the Bigge Range, north of Bauhinia and the Bigge Range is Wadja country. I know the boundary of our Karingbal country is along the Carnarvon Range but I do not know which mob is west of that range.
262 About language, she noted:
We were told not to talk lingo (Karingbal language) or we would get into trouble. If the old people like aunty Daisy and aunty Ivy talked lingo they were punished by the whitefellas who ran Woorabinda and people’s movements were restricted. Both those old ladies could speak Karingbal language but they kept it quiet. When we went out bush hunting and camping on weekends they would tell us the words for plants and animals and parts of the body. …
263 Ms Evans enumerated various Karingbal rules and traditions, and how she observed them:
When strangers come onto Karingbal country they should always ask Karingbal elders whether they can camp for a while, hunt or take something from the country like wood for a boomerang.
…
It has always been a rule that you leave things the way you found them on Karingbal country. When we dig a hole for a fire, we have to cover it up and leave it flat just the way it was.
…
Another rule is that you are not allowed to take anything away from Karingbal country because if you do, you could get sick from the spirits in the country. I teach my children this rule.
You have got to have a spiritual connection to Karingbal country to be Karingbal. You feel this connection through the animals and the land. The spirits in a land will know who you are because you are from those people who are from that country and walked the land. I only get this feeling in Karingbal country because of the ancestors. I would not get this feeling in another place like the Northern Territory because it is not the country of my ancestors and those ancestor spirits from that country would not know me.
When I go on to country, I call out to the spirits of my ancestors and let them know that I am back and I am the daughter of Sonny Hill, the granddaughter of Effie Freeman and the great granddaughter of Mick Freeman. It is important to take your shoes off when you are near sacred places to get closer to the country. I was taught that by my aunties, Daisy and Ivy and other old people. I teach my children this rule.
…
We use smoking ceremonies to welcome people to country. We also smoke houses to get rid of bad spirits. Sometimes young kids will get smoked if they muck up. If someone passes away we will smoke the house to get rid of bad spirits coming back there.
When I was about 8 years old I saw Bulbura Freeman do the emu dance at Woorabinda. He was dressed in a special costume with ochre. The emu dance is an important dance for the Karingbal people. I have a lot of Karingbal kids at Woorabinda and they are learning the emu dance and other dances as well like the goanna and the eagle dance.
…
My old aunties Daisy and Ivy went out hunting all the time and would take us children with them. They would show us all the different fruits and foods that we could get out in the bush. …
264 With respect to Lake Nuga Nuga, she recounted:
Lake Nuga Nuga is a special place for Karingbal.
I was told by the old people that when you go to those special Karingbal places like Lake Nuga Nuga you should call out to the spirits and let them know who you are and that you are from that old Mick Freeman. Lake Nuga Nuga was a special place for my auntie Daisy and she used to talk about it a lot. Even when she lived in Woorabinda she always used to go back camping to that special place there at lake Nuga Nuga. She had a special place in her heart for Lake Nuga Nuga and her family had always lived around there when she was growing up around Consuelo, Rewan and Warinilla Stations.
When the Catholic Church at Woorabinda built a hall next door, they asked aunty Daisy who was a very senior elder at the time, whether she wanted to name it. She named the church hall Nuga Nuga after her special place on Karingbal country. Every time I walk past that hall I think of aunty Daisy and Lake Nuga Nuga. The hall is still named Nuga Nuga.
265 Ms Evans described her understanding of the Mundagartta and referred to various animals which have spiritual significance, saying:
I was told about the Mundagartta when I was a child by the old people. I cannot remember who but all the old people talked about it. You know where the Mundagartta lives because there is a permanent waterhole. There is like a spring or a swamp, something like that. The Mundagartta is the big snake that made the creeks, gullies, gorges, rivers and hills on Karingbal country. The Mundagartta made Carnarvon Gorge and ended up at Lake Nuga Nuga.
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Aunties Ivy and Daisy used to talk about having a eungies or jingardjis. They can coax away children at night. You cannot stay out at night unless you have got a big fire and lots of light around to keep them away. They can spook animals because the animals can sense their presence.
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We were always told that the emu was a special animal for Karingbal people. We always see lots of emus on Karingbal country, they welcome us. The spirits of the ancestors are in those emus and we are not allowed to harm or eat them. The old people, like my dad and aunties Daisy and Ivy, told me that and when you go to Karingbal country the emus are everywhere to greet you. We know the spirits of those old ancestors are in those birds and they are looking after us when we are on our country. We cannot kill an emu anywhere. That is a special rule for us. Karingbal people would die if they did.
If anybody hears a curfew crying at night we know someone has died. Dogs hear it too and they start howling.
The old people told me if I see a willy wagtail sitting on your fence it is a sign that visitors are coming and I should stay at home and wait for them.
The night owl is a protector for the Freeman family. It is a good sign to see one and I always see one outside Grandad Bulbara’s place. The spirits of the old Freeman ancestors are in that bird. There used to be one outside my sister Celeste’s house.
266 She explained the role of elders in this way:
Elders of each family make the decisions about their family and what happens with Karingbal country. The elders have the knowledge about their family and the country and have the knowledge from their old people and they know the decisions those old people made and they now try to follow their lead. There are rules and decision to make about marriage, country, sites, young people acting up. The elders growl at the young people if they are not doing the right thing. Elders have to be respected because the spirits will punish people who don’t listen to what they say.
It is a rule that only the elders can speak up for our Freeman family. We are not allowed to talk for other Karingbal families or other murris country. That is up to the other families and murris to talk for their mob.
267 Regarding the rules of marriage and kinship, she said:
The rules about marriage are pretty strict. You cannot marry your own family – not even if you are distantly related. Ever since I was small, I was told who was my family and who was not my family, and I know all of my relations now. I often tell young people who they are related to so they do not make a mistake about getting too close with someone. I am pretty good with all of the family trees. I have them in my head and some written down I can tell most people back three generations. Someone in our family got married the wrong way and it caused a lot of trouble. There is still a lot of tension around because of that, but I am not going to mention any names because I do not want more trouble caused.
I teach my children about marrying the wrong way so it does not happen. I have written out a lot of these family trees so I can explain it to people.
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Even if people are adopted and not blood related, but are raised by a family, they still cannot marry anyone who is related to that family.
I always ask people who their parents are and I can tell who their relations are. I never heard of Amy Miller or any of her descendants as Karingbal people.
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The sisters and brothers of your parents are like your mother and father too. They can tell you what to do and discipline you if you are doing something wrong. My nieces and nephews’ children are my grandchildren too. We look after everyone’s children and raise other people’s children when they need a hand. We often raise our grandchildren too. My elders did that and I do that now.
268 Ms Evans explained that Celeste Hill is her sister. Their mother was Kullilli. She had thought of herself as Wadja until recently and had been brought up the Wadja way. Fred Stapleton had contacted her to ask them to join the claim as they were descended from Karingbal and she had done so. She knew Auntie Esmay Freeman had been approached earlier and refused as they wanted to see what would happen with the Wadja claim first. She called her relatives Auntie and Uncle and also said “Auntie Gerry Freeman – she made Uncle Claude – well, I used to call her Mum. Mum Gerry. Mother Free. Mother Free”.
269 Ms Evans said you could not claim country just because you were born there but, if you could, you would like to be born on country. You had to be from that country through your ancestors. She was born in Woorabinda but was Karingbal and Wadja. She said:
● The Garingbal people used to go over to Wadja country, and Wadja people go over to Garingbal country, and they are a special place over on Garingbal country too – the Wadja people.
● Kevin Albury told me about those places … special place for Wadja, and special place for Garingbal over there.
● She had met Fred Stapleton in the mid 1980s and knew they were the same mob as he called Daisy his Auntie. She did not meet Charlies until 2011.
● Auntie Daisy had told her that Carnarvon Gorge and Lake Nuga Nuga were important to Karingbal people.
● Elders are for all Karingbal people not just one family.
● People become elders by age and knowledge.
270 Ms Hill was born in 1954 at Woorabinda and continues to live there. As the sister of Ms Evans, she too is Karingbal through her father’s side of the family as described above.
271 Ms Hill described what she had been taught about Karingbal country and its neighbours in this way:
We always knew that our Karingbal country was down on those stations where the old people had been born, lived and worked. Those stations were Consuelo, Rewan, Warinilla and up around Rolleston around Meteor Park Stations. The old people told us that the Carnarvon Ranges and the Carnarvon Gorge were our country and west of there was someone else’s country. Lake Nuga Nuga was another one that those old people, like Aunty Daisy, always talked about as being our Karingbal country. The old people always told us to protect our Karingbal country and make sure that the old camps, special places like Lake Nuga Nuga and Carnarvon Gorge, and burial sites were looked after and not damaged. We want to make sure that miners do not touch those special places.
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The Kanalou people are the neighbours on the Rockhampton side of Karingbal country. The Iman people are neighbours too but down in the south below the Kanalou. The Springsure mob are Kara Kara and the Wadja are on the Rockhampton side of the Expedition Range.
272 She noted with reference to language that:
We were taught not to speak language in front of white people or we would get into big trouble. Aunty Daisy and Aunty Ivy and the other old people used to speak the Karingbal language in secret. We know some Karingbal words like dunbun (witchetty grub), gundoonoo (children), gumbi gumbi (is a type of medical tree).
273 Ms Hill also related stories of the spirits and the significance of her family totem:
I always taught by the old people from my family that the emu is a special animal or totem for the Karingbal people. We are always relaxed around the emu because they are our family and the spirits of our ancestors are in those birds. Other tribes from other places always get disturbed by the emu and they run away from them because they are so big. They do not worry me. I see them on Karingbal country and they are like a welcoming sign for us. The old people always talked about the emu and the rules about it. I teach the younger generations about the emu too.
Our father always told us that the night owl was there for the Freeman’s protection and the spirits of the old people are in those birds. …
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Spirits also can appear in other birds like the Willy Wagtail. That bird gives us a sign when he is sitting on our fence that someone is visiting from a long distance.
The Peewee looks like a Magpie but he is smaller and the spirits come to us in the Peewee sometimes. When I see him around my place, I know that visitors are coming from a short distance. The old people taught us that and I teach my children.
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The eungies or jingardjis are little hairy men. They coax the children away from the camp in Karingbal country. They are mischievous. My mother used to talk about them and they become friends and protectors for some people. I have never seen one but I have heard that they are hairy and smelly.
274 About the Mundagartta, she said:
Aunty Daisy always used to talk about the Mundagartta that created all the waterways, hills and gorges in Karingbal country. She told us that the Mundagartta was living at Lake Nuga Nuga still. The Mundagartta came down the Karingbal gorge and made that gorge and still resides in permanent waterholes like lagoons and swamps all over our country. The Mundagartta is a special creator spirit for the Karingbal people and none of our beautiful country would be there if he had not created it a long long time ago.
If we do not make sure the Mundagartta is safe in those permanent waterholes then we will get punished by the spirits. The spirits are all over Karingbal country and they can see what we are doing. Those old people that we knew like aunty Daisy and aunty Ivy, they told us always to protect our country especially places like Lake Nuga Nuga.
275 She described certain traditions that relate to Karingbal country in this way:
If Aboriginal people from outside Karingbal country want to come onto Karingbal country, they need to ask one of the Karingbal elders first. They do not have to ask for permission if they are just driving through Rolleston to Springsure, or somewhere like that, but they have to ask if they are going to do something on the country like get some animals or camp or take some wood to make a nulla nulla or a boomerang. That is how we were taught by the old people to behave and if we were going to go onto another murris country, we would ask them if we could do it. It is a rule between different groups because it is our country and they should have to ask before they come onto it and take something.
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If a Karingbal person dies in a house then one of the elders will organise to smoke the house out to get rid of the dead person’s spirit and make sure it goes back to Karingbal country. It is good for people to get buried back on country if they are allowed by white authorities. If they can’t get buried back on country we know Karingbal people’s spirits will go back to their land.
276 She outlined the rules of marriage, saying:
When I was younger I was always taught by my female elders about who are the right and wrong people that you can marry. We were taught who was related to us and who was not. My sister Dianne is good at keeping a check of all our relations right back some generations and she has written some of them out so we know what to tell the young people about who they can marry. It is our duty as elders of the Karingbal family of Freemans to make sure everyone is aware of this so they do not marry the wrong way. If young people are getting too close we will go up and talk to them and if they do not listen us then we will growl at them and go and talk to the elder in their family.
277 With reference to the role of the elders, she explained:
The elders are the ones to speak up and make the important decisions about Karingbal country and Karingbal families. The elders have the knowledge about things like who are the relations like I was talking about.... The elders also have the knowledge about country like I was saying about aunty Daisy, aunty Ivy and my dad. I always had to listen to them and not talk out of turn. If we sat around the camp fire it was a rule that the young ones had to keep quiet or you would get a flogging. It is the same today. I teach my kids and grandkids to let the elders speak for the country and other important decisions. That has always been the way decisions are made in Karingbal families. Sometimes the elders from each family will get together and discuss things. But we do not ever talk for other Karingbal families. This is respect.
We have to look after our elders, so that if we go out hunting or fishing we have to share that fish or meat with the elders who can’t go out bush so much anymore. That has always been a rule. It is expected of our young people and I teach my grandchildren this rule.
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The old people always taught us that we did not take too much food. We were told only to take what we needed and to share it with other families and particularly the elders. I always teach my children and grandchildren to do this because elders cannot go out hunting when they are getting old.
278 Ms Hill said in oral evidence she had a Wadja side and a Karingbal side to her ancestry. She grew up mainly the Wadja way but her father had said they had a connection to Karingbal too. She first went to Karingbal country in 2010 or 2011 and was learning about Karingbal country and ways.
279 Ms Munns was born in Rockhampton in 1957. She is Karingbal through her mother, Myrtle Hill, her mother’s mother (Effie Freeman) and her mother’s father (Mick Freeman).
280 In relation to being Karingbal, Ms Munns said:
My mother always looked back to when she was growing up on Karingbal country. She always talked about the old Karingbal people and talked about the Carnarvon Ranges and Consuelo Station as her home. My mother told me that her grandfather Mick Freeman was born around Carnarvon and that was his country.
When I was little, I only ever heard of the Karingbal mob. I never heard of Wadja, Kanalou or Bidjara, I only heard about those mobs recently.
My mother always talked about the Alburys being Karingbal and recognised them and our family as close. We were all Karingbal. My mother was friends with Annie Miller when they lived in Springsure. She never talked about the Millers in the same way as the Alburys being close to the Freemans or being Karingbal.
281 She described the geography of Karingbal country in this way:
I was always told about Karingbal country by my old people like my mother. She told me about the Comet River and how that was a boundary for Karingbal country. The Comet River and the Brown River are the same river, they just change name at Rolleston. Apart from those stations I talked about.., Meteor Downs Station is another station on Karingbal country. There is a big lagoon there called Horseshoe Lagoon. There are lots of burials of the old people on Springwood Station and Deepdale Station. The old people always told me about Lake Nuga Nuga and told me that that was Karingbal country and so was Carnarvon Gorge.
To the west of the Carnarvon Range is the Karingbal boundary. I know that Springsure is not in Karingbal country.
282 In relation to language, Ms Munns said:
My mother told me that no one was allowed to speak Karingbal language when they were young or they would get into trouble with the white authorities. My mother’s elders were always worried the children would be taken away if anyone spoke language. Despite being told not to speak language we all learnt some Karingbal words that I use in this statement and I know other words like Dilli means eye and Munga means ears.
283 Ms Munns described her relationship with Karingbal land as a spiritual one, and referred to certain rules about the way one must behave there:
I feel very strongly about my Karingbal country. It is important to keep a connection to country and I always like to go out and visit it when I can. It is not always easy with work. I encourage my children to go out on country too. Terence Munns, my son, he has been out on survey walks with the Karingbal male elders going and checking out sites and making sure mining does not happen in the wrong areas. It is very important to protect our country by doing these walks and making sure nothing is damaged.
When I go down to Karingbal country onto stations like Deepdale or Springwood, I see scar trees and artefacts and I know that is where all my old Karingbal people have been living and gathering food for thousands of years. I do not want that destroyed or touched by miners or others. The old people always told us to protect sites and places that they said were important.
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Strangers should not go onto Karingbal country and hunt, camp or take things unless they ask a Karingbal person first. I would not go onto other Aboriginal group’s country to do something like that unless I asked an elder from that other mob. It is important to show respect to the elders from their country and let them know what you are doing there.
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When I come onto Karingbal country, I always talk to the spirits of the old people and let them know that I have come home. I call out to them and use the words ‘Yumba Dgirami’. Yumba means home in Karingbal language. If the spirits know who you are, who your ancestors are from that country, they will not harm you. I also talk to the spirits on stranger’s country to let them know who I am. It is like a safety precaution. I tell them I am Myrtle Hill’s daughter and the granddaughter of Effie Freeman and the great-granddaughter of Mick Freeman. That means they will know who I am and they will not harm me unless I do something wrong.
It is a rule amongst Karingbal people that you would not harm anything that is on the country and take it away from where it belongs. If you take anything away from country, the spirits will come after you, and you could get sick. It is not just something that might happen to you, it could happen to your family as well as punishment from the spirits. The spirits are all around Karingbal country and they see if someone is doing something wrong by the country.
284 She described various spirits, the most important being the Mundagartta, and the Freeman family totem:
I teach my children to respect the spirits and not to be frightened of them. The spirits look after you as long as you do the right thing. The old people taught me that you just have to talk to them and tell them what family you are from and that you are from that country and you will be alright.
Before I step on the ground, I talk to the ancestors and tell them I am home. If I do not do that, I do not feel comfortable. I always take my shoes off when I come onto country to be connected with it. The old people told me to do this.
The Mundagartta is the Karingbal people’s spiritual Dreamtime snake that made all the lakes, rivers, swamps, gorges and hills all over Karingal country. If the Mundagartta is affected by something it will dry up the watercourses and that will have a bad effect on our country. We have to look after the Mundagartta and all the watercourses otherwise we will not have any water or food. That is another reason why we worry about the mining because they pump a lot of things into the water system and that can affect the Mundagartta. The Mundagartta came right through Carnarvon Gorge and the old fellas say that the Mundagartta is living in Lake Nuga Nuga and some other permanent waterholes right now.
Eungies or Jingardjis are little hairy men that can be mischievous and can torment people if they are doing the wrong thing. The word is different but it means the same thing. They come out at night and you can sometimes hear rocks rolling down the hills when they are about. I have never seen one but people say they are very smelly. They often have an association with children who can see them. You should never follow a Eungies or Jingardjis as he will take you away.
My mother and the other old people told us that we are not allowed to eat emu because it is the Karingbal people’s totem. We believe that the spirits of the old people are in those emus. That is why we do not ever hurt them. When we go to Karingbal country we always see lots of emus and I know that the old people are coming to greet us. I teach my children to respect the emu and not be afraid of it as it is our protector. Emus always come around at funerals because they are the old people’s spirits checking things out.
My mother and the other Freeman elders told us that the night owl is the Freeman totem bird. The emu is the special bird for the Karingbal and the night owl is the special bird for the Freemans. Seeing the night owl can be a good sign or a bad sign depending on what time of day it is, how many you see and the weather conditions. Mostly it is a good sign to see a night owl and the Freemans know that the ancestor spirits are in the bird and are looking out for us and our family.
I was told by the old people that if you heard a curlew singing out it means that bad news is coming. When I was younger and my mother was still alive, my mother heard a curlew sing out and she said it was bad news. We got a phone call soon after that, her brother John Hill had died. When I hear a curlew call out, I worry that something bad has happened.
My old people taught me that if a willy wagtail comes around your house it is a sign that a visitor is coming.
When people die in a house, we always go in with a billy can and smoke the houses with sandalwood. This is to make sure that any bad spirits that may be there will not come back and torment you or anyone else if you go and live back in the house.
At funerals we do a smoking ceremony too. It is up to the elders to do it.
285 Ms Munns noted that elders provide vital guidance about Karingbal rules, for example about marriage:
Not anyone can become an elder, they have to earn it through knowledge and respect from the Karingbal people. Just because people are old doesn’t mean they are elder who can speak up for their family and country.
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I would always check with elders when I was young in case I was related to one of the fellas. The women in the Karingbal families always know how everyone is related so they know who people can marry and who people cannot marry. If the elders see people getting too close then they tell them that they are too close and they should stay away. If young people do not listen, then they get growled at. It could be a worse punishment if they do not listen because the spirits of the old people will know what is going on and they could get sick, or their children could be sick.
286 She also said:
Those old people like Auntie Daisy and Auntie Ivy who are my mum’s cousins, used to take us out camping on the weekends and around country teaching us about bush foods. They would teach us about digging up yams and how to find wild bananas and emu apples.
287 In her oral evidence Ms Munns said her mother “spoke about Karingbal and she showed – told me where she was born” at Consuelo.
288 Sean Cutting was born in 1975 in Rockhampton. He lives in Moura because it is close to Karingbal country. Mr Cutting’s mother, Phyllis Margaret Stapleton, is a Karingbal woman and the sister of Fred and Charles Stapleton.
289 Mr Cutting said in his statement that he is learning about Karingbal country from his Uncle Charles and that:
I am young in Karingbal culture and know I have a lot to learn. My uncles know that I am keen to learn. I show interest in it. I know I have to earn their respect and trust. Once you do that they start to tell you things and show you things. The old fellas worry about telling younger people things because some won’t take it seriously. I take it seriously because it is my country and my ancestors. Uncle Charles and uncle Freddo are also concerned that some of those other murri mobs like the Bidjara and the Miller family may steal the Karingbal cultural and country knowledge.
290 He recounted some of the trips he has made since his uncles started teaching him about Karingbal ways, and the impression they have made on him:
A while ago we went up to Deepdale Station camping for two nights. This was with uncle Charles Stapleton, Raymond Saltner Snr, me and my cousin Lavinia Saltner. Deepdale Station is up Springwood Road past Springwood Station up the back of the Carnarvon Gorge. Deepdale Station has burial sites. We travelled up there with uncle Charles to learn about the burial sites. The Deepdale Station owner has a good relationship with uncle Charles and they let him come on to his country anytime and so do the pastoralists at Springwood Station.
Before we got to the burial site uncle Charles told us we had to say “Yumba Djirami” and had to take our shoes off. At some distance from the site we took our shoes off and said “Yumba Djirami” to let the spirits of the old people know that we were the right people and we are coming in there. Uncle Charles had been there before and the knowledge of the site had been handed down to him.
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That whole trip was a very powerful experience for me and it makes me want to check up on sites to make sure they are all right. I have been back to Karingbal country regularly since then.
Another overnight trip I did with uncle Charles was to one of the properties up Arcadia Valley, near Lake Nuga Nuga. We were worried about some burial sites there and Charles wanted to check them out. Just the two of us drove in there and walked up the mountain and found the sites. I took my shoes off and called out “Yumba Djirami” and then approached the burial. It was wrapped up in bark up on a shelf in the cave. You had to climb up on a rock and it was on the shelf and you had to look in there. I could see it was wrapped up in bark and some kind of rope. It looked like it was human hair rope and to me looked undisturbed and like the day it was put there.
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It is important to me that I have his permission to talk about these things this way. It makes me feel so good to know that one day I can take Karingbal kids to these sites and hand down the knowledge as well.
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I am looking forward to spending more time with my uncle Charles and Freddo. They say that you just can’t take anyone up into those hills who you can’t trust. I want to learn more about Karingbal country, learn more of the sites so we can monitor them so that I know about them and can tell younger people when the time is right. I know my elders won’t be around forever and I don’t want the stories from the dreamtime to be lost. It is a cycle. When I think there are people I can trust I will take the younger ones there and show them.
This is Karingbal law that I am following. It is binding on me and even though I wish I learnt it years ago, it is so good to be learning it now. I wish I had learnt more from old Kevin – he was a beautiful man. He told me I would learn from uncle Charles and I have.
291 He noted the rules about entering Karingbal country, which he said were:
Other people must ask permission from the elders before they enter Karingbal country. People had to ask elders if they want something from someone else’s country. Otherwise something bad might happen, the spirits are always watching. Or if a Karingbal person sees them they will tell them off. Outsiders have to ask before they go on Karingal country. This is so even now. If people ask permission of the elders and show respect, they are usually allowed to do what they want.
292 Mr Cutting also recounted what he had learned about Karingbal spirits and the Mundagartta, in the following terms:
My uncles have taught me about the creator spirit snake called the Mundagartta. The Mundagartta made all the rivers. creeks, lakes, swamps, gorges and hills on Karingbal country. That big serpent made Carnarvon Gorge and Ranges and ended up in Lake Nuga Nuga and he is there still. Those waterways and land forms are very important to us and provide us with life giving water and animals for food.
We have taken lots of trips to Lake Nuga Nuga and I have been taught about the Mundagartta the serpent that lives in Lake Nuga Nuga. I know we are not allowed to swim in the Lake, or climb the hill that stands above the Lake. Uncle Charles taught me that there was a camp there from his Mum’s time. They couldn’t find it for a while but have found it now. Next time we go I will go to my grandmother’s camp.
I have been taught about the importance of emus to Karingbal people. Karingbal people know that when you die you come back as an emu so you never harm them. You can’t eat them, if you did it would be like eating your family and you just wouldn’t do it. When I see one I think ‘Look at the old people over there checking up on us”. Usually there are hundreds of them around but after all the floods last year I didn’t see them for a while because they seem to have known to go to higher ground. I went out recently to Karingbal country and the emus were back.
The crows are a messenger bird. If someone dies they can sit out on the fence and caw away to tell you. This happened to uncle Charles when uncle Kevin Albury died.
293 Mr Cutting reflected on his Uncle’s role as elder, and said:
It is up to Uncle Charles and the other elders to protect sites on country and to pass on their knowledge about them to younger Karingbal generations. This is one of their roles as elders. I acknowledge and respect their position as Karingbal elders. I will seek their advice about ways of doing things. I always check with uncle Charles before I speak up about important things. I won’t speak up if an elder is around but if an elder isn’t there and I have to I will do it. If I am grading my Karingbal land I don’t want to go near the wrong site. If I do that I could get punished by the spirits and get sick.
294 In oral evidence Mr Cutting said he did not know a lot about Karingbal ways but he was learning. He knew that “when you’re on country you’ve got to call out” and about the Mundagatta.
295 Mr Freeman was born in 1952 at Woorabinda and lives in Rockhampton. His father was Claude Freeman and his mother, Geraldine Roy, a Butchulla woman. He is Karingbal through his great-grandfather on his father’s side, Mick Freeman, and his descendants.
296 Mr Freeman described his being Karingbal in the following way:
It is good to be born on your country like my dad and his father and grandfather but it doesn’t give anyone rights. To be a Karingbal person you have to come from a Karingbal person who was walking Karingbal country before whitefellas came to our country. Just because people are born or worked on Karingbal country doesn’t make them Karingbal.
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I have always known I was Karingbal, all the old people would tell us that when we were growing up. I knew all those old Karingbal people when I was a kid like Bulbura Freeman, aunty Daisy, aunty Ivy and aunty Beatty Stapleton (Charlie’s mother).
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297 He recounted learning about Karingbal ways when he was young, saying:
My Dad took me to Rewan Station and Springsure when I was about 9 years old and again when I was 17 years old. I went up there myself when I was 22 years old. I just wanted to see my Dad’s country and keep in touch. I thought I would be right as soon as I seen it. I had curiosity about changes since the time I first saw it when I was a kid. By that time all of my family had sort of moved on because the big Stations had to start paying Murris proper wages so they had to leave and that’s when Taroom and later Woorabinda communities were set up. Before he passed on, my Dad said to me about my Karingbal country “that’s all your area here. This is your Grandfather’s place”. He was pointing to Carnarvon Ranges and Rewan Station up towards Springsure. When I was younger the old people took me to places I didn’t even know were there.
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Then my Dad and the old people taught us kids about getting bush tucker. We was all good at getting it, so we didn’t worry about the income from the government that was supposed to support us, but we would go out and catch anything like a kangaroo, wallaby or porcupine – anything that was suitable for us to eat. But I was told we couldn’t eat emu.
298 Regarding the boundaries and neighbours of Karingbal country, Mr Freeman said:
My dad showed me Karingbal country and told me that Warinilla Station, Rewan Station and Consuelo Station were all Stations on Karingbal country where my family were born, lived and worked. The Carnarvon Ranges are the southern boundary of Karingbal country and the northern boundary goes up past Rolleston to stations like Meteor Downs and Albinia Downs Stations just before Springsure. I know when I am coming into Karingbal country from Rockhampton because I cross over the Expedition Ranges and then about 40 kms later at Rolleston I am in Karingbal country.
The Wadja are on the east side of the Expedition Ranges and around to Springsure. The Kanaloo are the Karingbal neighbours on the east side. The Iman people are down the bottom of the Expedition Ranges in the south east of Karingbal country. Bidjara country is west of the Carnarvon Ranges.
…
The rivers are important. People might come over to our side of the river from another tribe to ask for water and we can go over their side if we need water, if there isn’t much around. They can come into our boundary and we, in theirs, providing we get permission from them and they get permission from us. Rivers are mostly our boundary.
299 About the Mundagartta, he said:
The old people told me that the Mundagartta lives in swamps and waterholes. The Mundagartta is a spirit snake that white people call the rainbow serpent. The Mundagartta created the rivers, lakes, creeks, swamps, gorges and hills in Karingbal country. He is an important spiritual creator for the Karingbal people. He made the Carnarvon Gorge too. The old people told me that the Mundagartta still lives in Lake Nuga Nuga and must be protected. For that reason we would not let anyone like miners do anything to Lake Nuga Nuga or to affect the water that goes into it from the Brown River.
300 Mr Freeman said that certain animals had significance as totems and spirits, and that spirits exist on Karingbal country:
I know how important emus are from the old people. Karingbal people know that when you die you come back as an emu so you never harm them. For Freemans they can come back as an owl too. My old people told me that the old ancestors can change from an owl to an emu so you can come back as both. There are some things that you can’t eat because of our tribal tradition such as emu.
Some people can’t eat possum if it is their special animal. My sister can’t eat owl because that’s a totem for her. The owl is a messenger. If you see a night owl then you know there is a death of a family member. That’s our belief from our ancestors. If I see an owl during the day, it will depend on the time and place, but it can be a good sign. It can mean that the old people are in that bird and they are watching over me and looking out for me and my family. It makes me feel good. My sister Esmay has an owl that lives in a tree near her house and it makes the whole family feel safe because we think it is our old grandfather.
When some people die they could come back as an animal from the bush. If you see that bird there watching you, like a crow, a night owl or a pee wee you know. If he is watching you, you know not to do something stupid because he is one of the old people.
…
A long time ago my grandfather Bulbura gave us all a totem. My brother Stephen, his messenger is a willy wagtail; the eldest, Norman – his totem is a plover; mine is a drake; Les is a little tiny bird. I forget the others but they know them.
…
There are spirits of the ancestors all over our Karingbal country. They are there to protect us and to punish us if we do not do the right thing. That is why it is so important for us to look after our country because those old people are there. When I arrive in Karingbal country I always call out to the spirits like my Dad did. It is important to do this so the spirits know you. We greet those ancestors when we go to our Karingbal country. We let them know who we are and that we are from Mick Freeman’s family so the spirits will not harm us.
When we were kids and we were naughty we would be stripped, rolled in dew and smoked with sandle wood to keep the evil spirits at bay. It is the same with babies who are troubled or houses where things are going wrong, you have to smoke them with sandle wood to get rid of the spirits.
Once I smoked my daughter when she was very young. The river was flooding and she went there when I told her not to. It was dangerous so I smoked her.
The Tall People walk around looking for people who have done the wrong thing. They will punish you if you do the wrong thing. If they catch them they don’t kill them by killing them, they will put a bone or something else in you to make you sick. They can take a strand of hair or clothes and do magic with it. They make Puri Puri. That’s the sound of their fingers clawing. When they sing they send out a song that will get you. It will make you very sick.
301 Mr Freeman related the following about going onto country:
Whenever people come into Karingbal country to take some wood or water, or anything like that, they should be talking to a Karingbal elder first about taking things from Karingal land. People just can’t take things from the land without asking. If they do take things they can get into trouble with elders and other Karingbal people. They also can get into big trouble with the spirits of the ancestors too who will make people sick as a punishment.
…
When we go on country we take our shoes off, particularly if we go to sacred areas like burial grounds or special sites.
One time we were up at Carnarvon Gorge in small groups. One girl came back with some wattle. We told her not to take it, but she took it back to Woorabinda. A week later her mother died and a week after that her grandmother died. She also ended up in hospital very sick.
We were always told never to take anything from the bush. It is not right, it is a rule that we can’t breach or we get sick.
302 He also noted that elders hold an important position, and give guidance on matters including marriage. He said:
Elders must make all the decisions about Karingbal country. We were taught from the moment we could listen to respect elders, don’t talk when they are around and always ask them about country and Karingbal ways. That is the way it has always been. Elders have the knowledge and they knew the old people who have now passed away. Those old people taught them about important places on country, Karingbal ways of doing things and where Karingbal country is. Young people can only speak up for country if there is no one else around.
…
Elders monitor how all the Karingbal people are related to each other and who can marry who. These rules are still about but people are not speared anymore like the old days. Now if people marry the wrong person they are banished and no one in the family will speak to them. People can also get punished by the spirits for marrying the wrong way and they can have babies that have something wrong with them or their marriages will fail because they should never have got together in the first place.
303 With reference to other Karingbal customs, Mr Freeman said:
There is some kind of initiation still done. It is done at night but some ceremony is in the day. It is very hard to explain it. I have been through some ceremony but it is secret so I do not want to talk about it in public. A lot of information we have should be kept for Karingbal people and our culture. …
My first kill was a wallaby and I was 11 years old. Your first kill is important and your parents should be given the meat from the first kill. Eating the tail of the wallaby is the best part. I cook him in the coals.
304 Mr McLeod was born in Mackay in 1967. His great grandmother was Amy Miller, daughter of Jemima of Albinia. He said this about his Karingbal ancestry:
Mum and Aunty Marl told me that Granny Amy was born at Consuelo and that she lived on country right up until a few months before she died of old age in 1972. It is also my wish to be returned to our country after I die because this is our land and I belong here. That’s where we started.
305 He described the boundaries of his country in this way:
Mum, my uncles and my aunties taught me our boundaries. The easiest way to describe our country is to follow the Brown River back up through Lake Nuga Nuga to the top of the range. Then you just follow the range all the way back around to where the Staircase Range meets the Comet River.
306 Mr McLeod recounted what he had been taught about the spiritual places on Karingbal country, saying:
My Uncle Richard Hulme stayed at my place in Rubyvale for a few months last year. He told me we were also known as the Brown River people back when Rolleston was called Brown Town, and our people were part of the Miller camp on the western side of the Brown River. He told me that we come from the Rolleston, Springsure, Carnarvon Gorge area. I was also told this by my Mum and my aunties and uncles when I was growing up.
My Nanna and Mum told me about the spiritual places like Jemima and Amy’s birthing trees. I wasn’t told about a particular tree, but that the creek it…is part of the women’s knowledge. The birthing trees are part of the women’s knowledge too. My cousin Terri, told me about the time she went out to Meteor Downs and was taken to the birthing trees.
Mum and Nanna also told me about Lake Nuga Nuga, the Carnarvon Gorge, Serocold, Wild Horse Swamp, the Miller camp at Rolleston, Staircase Range and burial and ceremonial sites. Uncle Richard told me when he was younger, they would go to Wild Horse Swamp to collect food.
Nanna was always talking about Lake Nuga Nuga. She would say that it has special meaning to us because it is where the Mundagartta rests. Kevin Albury also rests there. Nanna also told us of a special sparkly stone there. When Nanna was getting older she said to me she had to go back home, back to her country to her people, she was staying with one of her daughters in Gracemere and felt that the time was right so she moved back to Springsure.
Mum told me Jemima and Amy gave birth to their children on country and Jemima had all her kids there and delivered up to six of Amy’s kids and these places are very spiritual and sacred places to us.
307 He also mentioned certain spiritual customs of his people, including:
My first memory of traditional knowledge is as a boy nanna Kathleen Miller telling us stories of our tribe and that we were the emu people. The Gurrnjabool people are emu people. The emu is our totem and we were never to kill harm or eat them and if we did the Eungies would come and take us away. As kids we heard a lot about Eungies, Gorrie Gorries and Junjuddies. Eungies are little hairy men that live in the mountains and are spiritual beings that are there to protect us and our people.
Mum said that when she was a young girl, Granny Amy would warn them about approaching our burial sites saying the Eungies would get them if they disrespected our ancestors near the caves where our people rested. The Eungies were there to protect our people as well as to serve as a form of discipline.
308 Mr McLeod said that he had been learning his language from Breen’s tapes of Amy Miller and explained that he knew what language it was because:
My eldest brother Dean said Amy would hold his hands up in the air and say “Gurrinjabool”, “you are Gurrinjabool boy”.
…
We have been here since the beginning of time this is what I know this is what I have told my kids and this is what they will tell their kids. I have been teaching my kids language by writing on a whiteboard that I in Gurrnjabool and teach them the words.
309 In oral evidence Mr McLeod said he only knew Amy Miller up to when he was four as she died. She lived with them before that and he was close to her. Mr McLeod said:
● The experts have got some things wrong about Amy and where she comes from and I would like to refer directly to the Breen tapes and I acknowledged yesterday that it was Gavan Breen that said Jemima – Amy was a Wadjagal speaker. At authorisation meetings in 2011, it was put to us that Amy was a Wadja speaker and whilst that may be the case, that Wadja is a dialect of the Wadja tribe, we have no affiliation with the Wadja tribe or the Wadja people.
● Gavan Breen asks Amy about where the language Garingbul comes from and Grannie pronounces it Garrinjabull.
● I hadn't been to Lake Nuga Nuga until 2011. That’s the first time I went there. But I know of Lake Nuga Nuga from – from stories of – of my stepfather told me about my nanna and she used to tell – tell the family about how important it was the burial sites that are there and – and the presence of the Eungies. This – this is the area where the Eungies are the most.
● The Carnarvon Gorge and that range area there, from what my family tell me anything over there was Bidjara.
● As far as I know Karingbal don’t own Carnarvon Gorge. I – I don’t know anybody that has said to me that Karingbal own it outright ‘cause our – my understanding is we don’t own, we belong.
● Why Carnarvon Gorge is important to us is because, like I’ve testified earlier, to Herbie Mitchell, being the husband and the collector of cultural and traditional Aboriginal stuff, has imparted knowledge on to my brothers that Carnarvon Gorge is our women’s business. And – and that’s all I can really tell you about what our connection to that country is there.
● The Carnarvon Gorge was told to me by my mother, that the Mundagarra created it and I was also told a bit by Mark Albury as well.
● From what I know, that’s a shared area between us and the Bidjara [Carnarvon Gorge].
● His mother had told him Garingbal was pronounced Garinjabull. She said this was how Amy Miller said it. So did his brother, “he tells me that she was making him feel good and she would hold both his arms up and say, you’re Karingbal boy, you’re Karingbal”.
● When I was a little fellow, we knew that we were the Emu People and we knew that because we say Garingbal properly.
● The Carnarvon and The Staircase as well and Jerry Miller, that’s Grannie’s son, he was famous for, well famous, I don’t know about the famous being the right description, but he was well known for saying, he wouldn’t even go over there mustering, because that’s not his country. He wouldn’t go over the Range.
● It’s acknowledged by, like, the people from town, from Springsure, that Jemima belonged there.
310 Ms Bailey was born in Rockhampton in 1955. Her grandmother was Amy Miller. In her statement she recalled being told about her family background:
Mum would reminisce about the old days when she got older and would tell me we lived on the Brown River and Granny Amy would always say we were Brown River people. Mum and Granny Miller always said we were Rolleston people and were from the Brown River.
Granny Amy used to say she was Rolleston mob. She is not Wadja, because I know Rolleston is her home. The Brown River was their livelihood it’s where they were born and where they were raised. I have no doubt that Rolleston is our area where we are from. We just know that it’s always been Rolleston and the Brown River.
…
The Millers were at Meteor Downs and I remember being told by Granny that Jemima had a lot of contact with Alburys. I remember us being family with the Alburys. Ambi Albury, who was about the same age as uncle Bertie, was family to me and I remember everyone getting along well and working together and they were considered part of our group. I know the Alburys were our people and I remember that the Alburys were very big people (in physical stature) and all my uncles were big people. I remember the people from Rolleston were the big people and we were told they were the strong people, the warriors, the fighting people.
…
The people that Granny spoke of were the Alburys and the Stapletons. It felt to me that we were a family group and I remember seeing them all together playing cards all the time. They used to argue amongst each other but if anyone said anything to one of the group from outside they would be dead, they were a family. I remember there being Amby Albury and Kevin Albury, they were men when I was only a kid. I remember them working at Rolleston and at Meteor Downs too.
Mum always said the Freemans were our cousins too. The Freemans started out Rewan and they were part of our mob. Daisy Freeman used to say Cathy Freeman’s dad was a brilliant athlete. Daisy was family she used to be there for the card games. I know the names Albury and Freeman from childhood as being our mob.
311 Ms Bailey said the following things about what she knew of the boundaries of her country and its neighbouring Aboriginal groups:
Granny Amy and Mum just told us we belonged to the land, we knew the land and could wander through it freely. We knew the boundaries and we knew the free access areas.
The river and the ranges were the boundaries you just knew the boundaries and can wander all around inside the area. We used to wander around Meteor. I knew where a big tree was where Topsy rolled in the fire out there near the water. Granny Amy and Mum used to tell us which water holes we could go to and which ones not to go to. We were told by Mum and Granny about places in Meteor where other people said don’t go as it was haunted. We didn’t have to worry because it was ours.
The boundaries were just set by each group and were very strong, even though they were invisible. I know that after the round-ups though the boundaries were harder to define because we were forced to move and mix.
…
I know that the Pitjara (Bidjara) people were on the other side. I knew that they were Pitjara and were on the northern side. They weren’t around when I was growing up and I don’t remember the Pitjara people ever coming over to our side.
Kairi people of Springsure were the black mob there and we had nothing to do with them, that was their area not ours and we didn’t mix with them. I knew they were different.
312 She described significant places on her country, saying:
Granny Amy used to talk about Lake Nuga Nuga, she said that it was the place where things begin and start and that’s where you should go at the end. She would say that Lake Nuga Nuga was “the beginning and the end”.
Granny Amy talked about Mundagartta, our Rainbow Serpent. Lake Nuga Nuga is our Rainbow Serpent land, if people didn’t get permission to come onto our land then it was an invasion and there would be a big fight. Granny Amy told me about a big fight one time that went for days. It was a thing to be proud of because we were able to protect our land. Granny Amy told me there was a big number of people that were fighting, Granny said it was a long process but in the end our land was defended and our area remained our area. I think it was around the early 1900s. Granny Amy said it was before Mum’s birth.
…
I know at Carnarvon Caves there are handprints everywhere. Granny Amy and Mum would say that Carnarvon was sacred and that it had special significance because there were men things and women things. I was told that people would look at the pictures on the wall and that every area has its own colour ochre, the Carnarvon area had terracotta colour ochre. The markings in the caves were not always the same for men and women, you knew women’s markings were smaller markings and thinner. You also see images of boomerangs. The boomerangs that were used to hunt the birds were different to the ones used to hunt kangaroos. You knew that the boomerangs to hunt kangaroos were thick and rounded. Granny used to say that it was a woman’s place and the kids (when they were little) could also be there. There are also images of the emu foot. The emu is the animal that watches our people and there are emu footprints in the caves.
313 She also explained how her knowledge of language was affected by restrictions, saying:
Our language kept a lot of other mobs away from us. Mum used to make us speak white and act white because you weren’t accepted if you were black. So Granny Amy couldn’t really talk to us about much. Mum said that she belonged to the Guringbal language. Amy would say she spoke the Guringbal language but she wasn’t allowed to speak it with my mum. I heard Amy speak words but didn’t know what it was described as. Mum said that Amy spoke Guringbal.
314 Ms Bailey also mentioned spirits of which she had heard:
Granny Amy used to scare us talking about the Eungies who were going to get us. Uncle Gerry used to scare us that the little gorrie men would get them if they misbehaved.
315 She explained in oral evidence that:
My mum was a station cook so she moved around a bit, we were back in Springsure and yes, she went up to Rolleston, that time I was in the St Josephs Orphanage for 12 months until she finished working at the property. So as I said, back in those days in my early childhood my mother used to drink a lot, so we were nomads, I suppose, you know, I can remember being in many places and it wasn’t until I was seven that we went back to Springsure and remained there for a few years, but it was never being away from Springsure for ever longer than 12 – you know, 12 months was the most as a child, and that I would have been away from my home.
316 Her mother believed that:
…to fit in we had to be white, act white, and talk white, which we did, and she didn’t want ..... you know, teaching us too many – too much about the old culture because she wanted us, as I said, to be – to go on that – yes ..... the white people’s way.
317 She explained the:
…trouble between blood and family. Our family to me was whether they would be blood or not; family was family. And I don’t know whether you understand what I’m trying to say. Even, like, today people call their family, you know, aunty and it’s just, to me, that’s – you know, that’s just part of your family. That’s just what – you know, extended family.
318 Ms Bailey also said:
…our boundaries were marked by waters and mountains; that’s what I – you know, grew up with, that I’ve been known or that’s my understanding of our area, but there were groups and in those groups there were ..... groups and ours were along from the Brown River and still family with the other groups that would be out in the area, you know, going up the Carnarvon and further and even further to the east following – I don’t know whether you know Rolleston, but it’s – the town itself is built sort of north of the Brown River and above flood lines whereas our family – or where grannie had said to me when I was a child and take me down there, our group was – we were down further, not on the other side, but on a – I suppose the southern end.
319 Ms Bailey said she had not seen “Garingbal” (pronounced “Garrinjabool”) written down in a book as this was how Amy Miller had said the word. She remembered Amby Albury clearly and Raymond Saltner.
320 Ms Leisha was born in 1968 at Mount Morgan. Her great grandmother was Amy Miller. She said this about her experience of being Karingbal:
I know I am Karingbal because that is what my mother always told me when we were growing up. She said we were Gurrinjabool.
We lived in Mount Morgan and the Rockhampton region when I was growing up but I always knew that our land was out by Rolleston and Springsure and that area was our country.
My mother taught me about being Gurrinjabool. She told me stories about the Rainbow Serpent making the watering holes around Carnarvon Gorge and that the gorge and Lake Nuga Nuga were special places to us Gurrinjabool people.
321 Ms Leisha described a spiritual bond with Karingbal Country, and said this about its boundaries and significant places:
I knew that our land was at Carnarvon, all around the ranges up to Springsure and across to Rolleston. My mother and Aunty Carol told me when we were out on country.
…
I have a spiritual connection to Karingbal land. I know this because when I have been on country I see the spirits there. Kevin Albury took me to visit our country and took me to the ranges. I walked out onto the land by myself while Kevin stayed in the car. When I came back to the car, Kevin asked me if I heard anything. I told him yes I could hear the spirits they were talking to me in the language but I didn’t know the language. I felt at home there. I could see the sprits on the rocks up on the mountains looking down on us.
I was taught to let spirits know that I was Gurrinjabool and I talk to them, to let them know I am coming on country and I ask them to let us be okay when we are there.
…
My mother always told me that Carnarvon was a special place for the Gurrinjabool people. I was told by my mother and also later by Kevin Albury which land was Karingbal and that Carnarvon was Karingbal Land. I was told that you never cross the water boundaries as that was into other country.
My mother told me about Carnarvon when I was younger and told me that the rainbow serpent (Mundagartta) formed the gorge and then all the waters around there. I was told that Lake Nuga Nuga was a very sacred place. When I visit Lake Nuga Nuga I hear the spirits talking. I can see the spirits there and I feel them. I feel safe and I know I am home.
322 In oral evidence Ms Leisha said Kevin Albury had approached her family in about 2006 to be part of the Karingbal claim. Her mother had told her previously they were from that way, “around the Carnarvon and Rolleston”.
323 She said:
● From what I know that Kevin Albury used to live with my family and if he didn’t think that we were not Karingbal, as it is, I’m pretty sure he would have taken us out.
● No one had explained to her the Karingbal rules of descent.
● Her mother always told her when she was growing up that she was Gurrinjabool.
● Her mother said that was how her Granny pronounced Garingbal.
● She did not know of any Alburys who said the Millers were not Garingbal.
6. HISTORICAL AND LINGUISTIC MATERIAL
324 Dr Hutchings describes the impacts of European expansion around and into the overlap area, as does Professor Langton. Following Leichhardt’s passage over the Expedition Range in 1847 European influence spread rapidly. Settlers began to take up large tracts of land as their own in the late 1850s. By 1861 there were mounted police depots in the region to protect the European population from the local Aboriginal tribes who resisted European colonisation. Various outbreaks of violence followed by massacres of Aboriginal people in the region are recorded thereafter. The effects of the opium trade on Aboriginal people were also insidious. The Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld) enabled Aboriginal people to be removed from their lands and confined to missions, including at Cherbourg (Barambah) and Woorabinda. Many people were permanently displaced from their country by reason of this legislation. Others whose traditional way of life had been destroyed or fractured had to leave their land to find work on the stations. All in all there was vast disruption to the lives of the Aboriginal people in the region from the 1850s onwards.
325 By historical material I mean material created other than for the purpose of these proceedings, in particular, anthropological material. Whatever the methodological and other flaws apparent in this historical material it was brought into existence for purposes unrelated to these proceedings. As such, it is unaffected by the conscious and unconscious pressures which litigation or anticipated litigation creates not only in the mind of the author of the material but also in the minds of those providing source information. Much of the historical material is identified in Dr Sackett’s report. This is because Dr Sackett’s report involves a review of secondary sources rather than an attempt to obtain and analyse primary sources. While this means that Dr Sackett’s report is more limited in scope than those of, for example, Dr Hutchings, it also means that his report provides a useful database for review of the available historical material. Except where indicated to the contrary, Dr Sackett’s report provides the foundation for the following discussion.
326 Curr (1887) reports that Kanoloo or Kaangooloo, being a confederation of tribes which included the Karranbal, the Maudalgo, the Mulkaki and others held territory on the head of the Comet River, as well as the eastern slopes of the Expedition Range, the Lower Dawson, the Upper Fitzroy and Mackenzie Rivers and their tributaries. Curr also said the Peechera was the name of the Mungalella Creek tribe.
327 The Comet River runs through Rolleston and the eastern part of the overlap area. The Expedition Range is to the east of the overlap area, the lower Dawson River traverses the south-eastern part of the overlap area, the Upper Fitzroy River and the Mackenzie River are far more easterly again, whereas Mungalella Creek (now Mungallala Creek) runs north-south from near the Chesterton Range (to the north-west of Mitchell).
328 Cameron (1904) also reported the “Karingbool” as associated with the Mackenzie River. As noted, the Mackenzie River is well to the north-east of the overlap area.
329 Tennant Kelly (1935) identified the Khangalu and Kaingbul north-west of Springsure, the Bidjera north-east of Clermont and the Khungabula or Kungabula as east of Blackall and south of Emerald or south-west of Springsure. She also described the Bidjera and Khungabula as on the upper reaches of the Warrego River. She reported being told that the “Bijera” are on the upper reaches of the Warrego across to Springsure, 30 miles below the Khungabula or Kungabula, those two being close neighbours. She recorded also that the Khangalu had come from Emerald to Springsure and that the Khangalu, Kaingbul and Karangbul “ran together”. Tennant Kelly’s mapping has obvious problems but some of these descriptions are verbal rather than map-based.
330 Clermont is north-west of Emerald. The Warrego River runs between the western part of the Great Dividing Range through Augathella and Charleville. Between the upper reaches of the Warrego River and Springsure would approach the western edges of the overlap area. East of Blackall and south of Emerald would be to the north of the overlap area. South-west of Springsure would be to the west of the overlap area. The inconsistencies in the descriptions are real but Tenant Kelly places both Bidjera and Khangalu at least at or near Springsure.
331 Davidson (1938) analysed earlier sources and relying on those sources said Kaing-bul had country south of Emerald and the Kongalu west of the Mackenzie River, the Khunga-bula south-west of Springsure and the Bidjera north-west of Clermont. His mapping shows the Kaing-bul north of the overlap area with the Bidjera much further to the north and west again. Davidson relies heavily on Tenant Kelly but does not refer to her location of both Bidjara and Kaing-bul at or near Springsure (Bidjara country, in effect, travelling from the south and west and Kaing-bul from the north and east).
332 Tindale’s analysis (1940) included numerous interviews in and around the area and extensive data collection. He identified the Karingbal as separate from the Kangulu. He placed the Karingbal on the headwaters of the Comet River below Rolleston to the Carnarvon Range, west to Consuelo, east to Expedition Range and Bedourie, with the Kairi to the north, the Wadja to the east and the Kongabula to the south. The Kongabula he located at on the headwaters of the Injune and Dawson Rivers above their junction, east and north of the Dividing Range, south of Carnarvon Range. He placed the Pitjara to the west of the Karingbal on the headwaters of the Nogoa and Warrego Rivers, south to Caroline, east to Killarney and Chesterton, west to Nive River.
333 Tindale’s map shows the Pitjara and Karingbal as neighbours. By this map the Karingbal extend across at least the northern and eastern parts of the overlap area. The Pitjara land also extends across the Great Dividing Range but ends to the west of the overlap area. The Kongabula are mapped extending from the south into the southern part of the overlap area. The Nguri are shown as occupying the area west of the Kongabula, south-east of the Bidjara and south-west of the Karingbal. Another hand-annotated topographic map of Tindale’s reproduced in Professor Sutton’s report provides a better picture of the locations involved. This map shows the overlap area marked Karinbal. The Pitjara area encompasses Mount Tabor and Babbiloora but does not extend eastwards of about Mount Moffatt. Mount Moffat is to the south-west of the western-most extent of the overlap area
334 Tindale’s subsequent analysis (1974) shows the eastern-most extent of the Pitjara as Consuelo Peak joining the western-most extent of the Karingbal in that area. Hence, this also places the Pitjara to the west of the overlap area and the Karingbal in the overlap area with the Kongabula again shown as extending from the south into the southern part of the overlap area and the Nguri remaining between the Pitjara to the north-west and Kongabula to the east.
335 Capell (1963) relied on Tindale, as did Bill and Lynette Oates (1970), but the Oates also placed the Pitjara in the area bounded by lines joining Blackall to Springsure, to Injune to Augathella. Apart from the easterly extension of Bidjara country to Injune this description is similar to that of Uncle Rusty.
336 Walsh (1999) based his mapping on Tindale. Walsh’s map appears to align closely with Tindale’s 1974 map at least insofar as the Bidjara, Karinbal, Nguri, and Kongabula are concerned.
337 As Dr Sackett noted in his analysis of this material, it is Tindale that firmly places the Karingbal in the overlap area (with the Kongabula and Nguri also in or near the southern part of the area) and the Bidjara to the west of that area. Having regard to the internal inconsistencies of the material and the conflicts between commentators, as well as the highly derivative nature of much of the historical work, Dr Sackett concluded that the material was “too mixed a bag to base much on”. I agree other than to observe that the material supports the general notion of Bidjara country extending from the west (perhaps both in the south and the north) towards the overlap area and Karingbal country extending from the east and north towards and into the overlap area. Even Tindale does not identify the whole of the overlap area with the Karingbal given the presence of the Kongabula in the south. There is also evidence of a close relationship between the Kongabula and the Bidjara from Tennant Kelly and also perhaps the Karingbal and the Kangulu.
338 Breen’s 1973 publication, Bidyara and Gungabula: Grammar and Vocabulary showed the “Garingbal (?)” language east of the Brown River (that is, in the eastern-most part of the overlap area) and the Bidjara language extending from Augathella in the west to as far as Emerald and the Comet and Brown Rivers, Rolleston and Injune, with the Gungabula in the southern area between Injune and Dawson Creeks (that is, Bidjara in the western part of the overlap area and Gungabula in the south). The Wadyigu language (or dialect) area is shown to the north of the Garingbal and south-east of Rolleston. Both Amy Miller and Bob Martin identified the Garingbal language (or dialect) as coming from well east of Rolleston, around Baralaba which is to the east of the Expedition Range. Bob Martin and George Solomon, Bidjara speakers, identified Bidjara country (which might have meant where Bidjara is spoken) as extending from Charleville to Springsure and across to Tambo, with the Gungabula being over by Roma or Roma way. Breen noted that Gungabula was virtually identical to Bidjara and that the Gungabula regarded Bidjara country as also their country, theorising that the Gungabula must have been displaced from their country early in white settlement.
339 Breen (1973) records that:
There is very little information available on the locations of the Bidyara and Gungabula tribes at the time of white settlement, or on the neighbouring tribes, and present day informants can provide nothing reliable. Tindale(1), who is generally reliable, gives the Bidyara country (Pitjara in his spelling) as:
Headwaters of Nogoa and Warrego Rivers; south to Caroline; east to Killarney and Chesterton (2); west to Nive River.
(1) N.B. Tindale, Distribution of Australian Tribes: a field survey, Trans. Royal Society of South Australia, 64, 140-231, (1940). See in particular p 163 and p 170.
(2) These three names do not appear on most readily available maps. Estimated from Tindale’s map, Caroline appears to be on or close to the Warrego River, about 20 miles upstream from Augathella; Killarney a little to the west of Hoganthulla; Chesterton about 20 miles north-east of Killarney. Tindale’s map shows Bidyara country extending considerably further east than Killarney and Chesterton.
He gives as alternative spellings Bidjera and Peechera. The territory of the Gungabula (Kongabula, with Khungabula as an alternative) is:
Headwaters of Injune and Dawson Rivers above their junction, east and north of Dividing Range, south of Carnarvon Range.
Neighbouring tribes marked on Tindale’s map are (in the writer’s spelling in cases where he has first-hand knowledge of the name, with Tindale’s spelling, if different, in brackets):
Gunya (Ku:nja) south of Bidyara;
(Wadjelang) west of Bidyara;
(Wadjebangai) west of Bidyara, with only a very short common boundary
(Jagalingu) north-west of Bidyara
(Kairi) north-east of Bidyara
Garingbal (Karingbel east of Bidyara and north of Gungabula
(Ji:man) east of Gungabula
(Mandandanji) south of Gungabula
Nguri south-east of Bidyara and wdest of Gjungabula.
Bidyara and Gungabula have a very short common boundary at the north-western extremity of Gungabula country and approximately in the centre of Bidyara’s eastern boundary.
The map published by Wurm, Hale and O’Grady (1966) gives Bidyara a much smaller area and shows no common boundary between it and Gungabula.
…
Gungabula people now regard the Bidyara country as also their own, and have no knowledge of the country marked as theirs by Tindale. It appears that they must have been displaced from that country at a very early stage in the white settlement. Their language is now virtually identical to that of the Bidyara but the main informants agree that there were greater differences in the early days.
The northern (Clermont) group call themselves Bidyara and speak the same dialect (with isolated differences in vocabulary) but are generally referred to by the southern speakers as Wadyaningu or Wadyaninga. (Another version, Wadyami, may have been a mishearing.) It is not known whether this is a name used by the Bidyara on the inland side of the Great Divide for those on the seaward side, or whether it was a Bidyara name for a language to the north and is mistakenly applied to the Clermont people.
A related dialect, known to its last partial speaker as Wadyigu, was spoken around Rolleston. This does not seem to correspond to any of Tindale’s names; he places Garingbal in this area but present day informants do not agree.
340 Killarney and Chesterton, mentioned above as the eastern-most extent of Bidjara country, are well to the west of the overlap area.
341 Dr Sackett observed that the placement by the informants of Garingbal much further to the east might explain the question mark (?) Breen placed in the map when showing the location of the Garingbal language. Dr Sackett also notes the apparent merging of Gungabula with Bidjara which is first recorded by Breen and the identification of the Gungabula with Bidjara country rather than the country to the south earlier mapped as Kongabula.
342 Holmer (1983) identified Bidjara as spoken in the overlap area with Garangbal spoken in areas far to the north of the overlap area. Dr Sackett noted that Holmer’s work has been subject to extensive methodological and other criticism which suggests it must be treated with caution. Professor Sutton made the same point and also said that the identification of Garangbal being spoken to the north of the overlap area was not inconsistent with the language relating to two areas, the Mackenzie River and Brown River (see further below).
343 Terrill (1993) mapped the Bidyara and Garingbal languages as neighbours, Bidyara in the west and Garingbal in the east, with the boundary between them just east of Springsure. This would see the Garingbal language (or dialect) spoken in the overlap area and Bidyara to the west of the overlap area (in contrast to Breen).
344 Jefferies (2006) concluded that the Great Dividing Range was a language and physical barrier and, in effect, placed the Bidjara language to the west and the Gangulu (which includes Garingbal) to the east. Dr Sackett’s comment was limited to the following:
Jefferies arrived at his views after laying out and sifting through a great deal of linguistic material, principally word lists that have been collected over the decades. Not being a linguist, I am not in a position to address the approach he adopted. I do, though, note that Breen (2009:219), while appreciative of the efforts Jeffries put into his project, remarked that “The methods, aims and results of Jeffries’ analysis of his material differ from mine.” Whether they differ in a good way or a bad way I cannot say. However, it is safe to say that Breen, as suggested above, has invested much of his professional life in researching the indigenous languages of Queensland.
345 In 2009 Breen revisited his work, the results of which (in a greatly simplified form for my purposes) are the overlap area being a Wadjigu speaking area, Wadjigu being a Bidjara dialect, this area being close to Bidjara country to the west, and Gungabula south of the Wadjigu, the Gungabula having become indistinguishable from the Bidjara by the time of Breen’s study in the 1970s. Breen locates the language of the Brown River people to the east of the Wadjigu area, the Garaynbal being centred on Jellinbah on the Mackenzie River (well to the north and east of Springsure). Breen concluded that there was little evidence supporting Tindale’s location of the Garingbal language (or dialect) but considerable evidence supporting its location to the east on the Mackenzie River.
346 Dr Sackett again considered that there are so many inconsistencies in the linguistic evidence that not much could be made of it, but identified Breen as easily the most knowledgeable researcher in this area. Dr Sackett also noted that he did not read Breen as suggesting that the whole of the overlap area was Bidjara country when he identified Bidjara or Wadjigu (a Bidjara dialect) being spoken in that area with Garingbal much further to the east. Dr Sackett reads Breen as saying that the language spoken in the overlap area is a dialect of Bidjara including by people who did not identify themselves as Bidjara. Professor Sutton must be understood as sharing this view. Professor Sutton explained that many Aboriginal people might speak or have spoken a language without necessarily owning the language or the territory belonging to that language. This is particularly relevant to the position of the Bidjara. It is apparent that Bidjara or dialects of Bidjara were spoken by many people in and around the overlap area but, according to Dr Sackett and Professor Sutton, it cannot be assumed that a person speaking Bidjara is a Bidjara person. Nor can it be assumed that because Bidjara is or was spoken in the overlap area, the overlap area is Bidjara country.
347 The other important point made by Professor Sutton, and one which I understand was common ground between the anthropologists, is that it may safely be taken that (for example) the various versions of Bidjara (Pitjara, Bidjera etc) and Karingbal (Karranbal, Karingbool, Kaingbul, Garaynbal etc) are immaterial; they are different versions of the same word describing the same people. I infer the same might be said of the versions of Gungabulla (Khungabula or Kungabula etc) given Professor Sutton specifically notes that the languages of this region do not distinguish between “k” and “g”.
348 Professor Sutton analysed Tindale’s Woorabinda and Cherbourg 1938 genealogies and ascertained that people who identified as Karingbal associated themselves with either the Mackenzie River or the Brown River. He also noted one informant, Jessie Cotherstone, as the source of the information that the “Karaingbal i.e. the whole area from Clermont & Springsure to Arcadia”.
349 Professor Sutton analysed various linguistic sources and concluded from them that the language identified as Karingbal (or any of its variations), at least around the Brown River anyway, was also known as or subsumed by the language known as Kangulu (or any of its variations). Professor Sutton also analysed the difference in language between Tim Albury and his younger brother by 20 years, Kevin Albury. This analysis supports the conclusion that the age difference between them was significant to their language, with Kevin Albury’s language showing linguistic dominance by Bidjara, in contrast to that of Tim Albury’s Karingbal language.
350 Professor Langton also analysed Tindale’s Woorabinda and Cherbourg 1938 genealogies. This analysis shows people identified as Bidjara associated with areas in the upper Warrego catchment and Springsure.
351 Rita Huggins and Jackie Huggins (1994), mother and daughter, are Bidjara via “Lucy of Maranoa”, their genealogy being one of those recorded by Tindale at Cherbourg in 1938. The Maranoa River, as noted, runs from north of the Chesterton Range south to Mitchell and continues towards St George. Rita Huggins was born in 1921 and her memories are recorded both on tape and in a book “Auntie Rita” first published in 1994. In the book Rita Huggins says that her born country is the land of the Bidjara-Pitjara people now known as Carnarvon Gorge. She continues:
This is also the land of the Kairi, Nuri, Karingbal, Longabulla, Jiman and Wadja people. Our people lived in this land since time began.
…
There were huge cliffs and rocks, riddled with caves where many of my people’s paintings were. Most caves and rock faces showed my people’s stencilled hands, weapons and tools, and there were engravings here, too. Fertility symbols and the giant serpent tell us of the spiritual significance of the place. This place is old. My people and their art were here long before the whiteman came.
The caves were cool places in summer and warm places in winter, and offered shelter when the days were windy or when there was rain. They offered a safe place for the women bringing new life into the world. As had happened for my mother and her mother before her, going back generation after generation, I was born in the sanctuary of one of those caves. My mother would tell us how my grandmother would wash my mother’s newborn babies in the nearby creek, place them in a colliman and carry them back to suckle on my exhausted mother’s breast.
We lived in humpies, or gunyahs, that the men built from tree branches, bark and leaves. Gum resin held them together. We would sleep inside the gunyahs, us children arguing for the warm place closest to Mama, a place usually kept for the youngest children. More gunyahs would be built as they were needed in this serene valley that had nurtured my people since time began.
My mother, Rose, had a Bidjara-Pitjara mother known as Lucy Conway from the Maranoa River and a white father who was never married to her mother. I never knew who her father was. I don’t know much about the contact my mother had with whites. She had a whiteman’s name, but she also had a tribal name, Gylma, and she spoke language and knew the old ways.
…
My people were made to use English words at Cherbourg rather than our Pitjara language. If we used our own language in front of the authorities we would face punishment and be corrected in the Queen’s English. The authorities tried to take away all our tribal ways and to replace them with English ones.
352 Rita Huggins was removed from her country at a young age and confined at Woorabinda and then Cherbourg. She returned to her country in 1986.
353 Jackie Huggins said in the book:
Returning to my mother’s born country as she refers to it complemented my own sense of identity and belonging, and my pride in this. It was important that together we make this trip as she had been insisting for quite some time, pining for her homelands. … I began to gain an understanding of her obvious attachment and relationship to her country and how our people had cared for this place way before the Royal Geographic Society and park rangers ever clapped eyes on it. The way my mother moved around, kissed the earth and said her prayers will have a lasting effect on my soul and memory because she was paying homage and respect to her ancestors who had passed on long ago but whose presence we could both intensely feel.
The land of my mother and my maternal grandmother is my land, too. It will be passed down to my children and successive generations, spiritually, in the manner that has been carried on for thousands of years. Fate dictates that nothing will ever change this. As Rita’s daughter, I not only share the celebration and the pain of her experience but also the land from which we were created.
Like most Aboriginal people, it is my deeply held belief that we came from this land, hence the term ‘the land is my mother’. The land is our birthing place, our cradle; it offers us connection with the creatures, the trees, the mountains and the rivers, and all living things. There are no stories of migration in our dreamtime stories. Our creation stories link us intrinsically to the earth. We are born of the earth and when we die our body and spirit go back there. This is why land is so important to us, no matter where and when we were born.
354 Peter Sutton, Lee Sackett, Suzi Hutchings and Marcia Langton, anthropologists, gave evidence.
7.1 Overview of anthropological reports
355 Professor Langton holds the inaugural Chair of Australian Indigenous Studies at the University of Melbourne. She attained a Bachelor of Arts, First Class, degree with a double major in anthropology in 1984 and was awarded a Doctorate of Philosophy in anthropology and human geography in 2005. From 1995 to February 2000, Professor Langton was the Director of the Centre for Indigenous, Natural and Cultural Resource Management and Ranger Professor of Aboriginal Studies at the Northern Territory University (now Charles Darwin University).
356 Professor Langton has published on native title, Aboriginal land rights, resource issues, customary law, and cultural resource issues and Aboriginal art. She has worked for three of the major Aboriginal land councils, carrying out research for land claims and native title claims in the Northern Territory and Queensland. From 1995 to 1998 Professor Langton served on the Council for Aboriginal Reconciliation. She was a member of the National Indigenous Working Group on Native Title and a member of the Aboriginal native title negotiating team in 1993 that negotiated with the federal government and influenced the passage of the Native Title Act through Parliament. In 2001 Professor Langton was made Fellow of the Academy of the Social Sciences of Australia.
357 Professor Langton submitted three reports, the first two of which were incorporated into the third. Professor Langton noted the lack of funds available to enable her to carry out the necessary research to produce a report of the appropriate quality for these proceedings and, thus, her conclusions were qualified to this extent.
358 Nevertheless, Professor Langton considered that there was sufficient material available to support the view that Bidjara country extended into the overlap area. Professor Langton relied in particular on evidence that Bidjara people were born, raised and/or resided in the overlap area, that their Bidjara descendants continued to look after their country in culturally appropriate ways, and that these descendants hold traditional knowledge of spiritually significant places in the overlap area.
359 Professor Langton also considered that the Brown River claimants were in fact Bidjara, and that Jemima Lee was probably a Bidjara ancestor. Professor Langton noted that the evidence indicated Karingbal was not a traditional language of the overlap area, but rather had migrated from its original country in the Mackenzie River area. Professor Langton rejected watersheds and other ecological features as boundaries of Bidjara country and therefore identity. She stated that Bidjara identity today derives from the expressed views of senior Bidjara people who in turn based their views on socio-linguistic factors, kinship and descent, succession and a range of historical and residential factors.
360 Dr Hutchings was awarded a Bachelor of Arts (Honours) in social anthropology in 1983 and a PhD in social anthropology in 1995. From 1984 to the present Dr Hutchings has conducted business as an independent consultant anthropologist, including work on several native title claims as well as Aboriginal cultural heritage, site clearances, and land issues. Dr Hutchings is currently a Research Fellow, course co-ordinator and lecturer at the David Unaipon College of Indigenous Education and Research at the University of South Australia. Dr Hutchings has had professional experience in indigenous criminal, youth and family legal matters, as well as indigenous education, social justice and health policy, having prepared multiple expert reports for legal proceedings. From 2009 to 2010 she was a Research Fellow at the Yaitya Purruna Indigenous Health Unit at the School of Population Health and Clinical Practice at the University of Adelaide. She has published widely on indigenous issues.
361 Dr Hutchings submitted five reports, one of which was the primary source of her evidence, with the other reports being supplementary. Unlike Professor Langton it is apparent from the size and number of reports that Dr Hutchings prepared that lack of funding was not a similar constraint.
362 According to Dr Hutchings, the Brown River People have always referred to themselves as Karingbal, but had adopted the current name in distinction from the Karingbal No 2 claim group and as an identifier of the group of dialects spoken by Aboriginal people from the region from before the time of sovereignty.
363 Dr Hutchings concluded that the Brown River People (being Karingbal), as descendants of the apical ancestors Albert Albury Senior, Maggie Suy See and Mick Freeman, possess native title rights and interests in the overlap area. They form a distinct society with a continuing observation of traditional laws and customs. She considered that the Karingbal No 2 claim group as represented by the descendants of Jemima of Albinia not to be Karingbal, their tribe and language belonging outside the area of the current claim. In her opinion there was insufficient evidence to link the descendants of Jemima of Albinia to the Karingbal, and suggested they may be of Wadja identity. Dr Hutchings’ brief did not require her to comment on any Bidjara native title rights and interests in the land, and she did not do so.
364 Dr Sackett holds a Bachelor of Arts, an MA and a PhD, all in anthropology. His PhD field research was with Aboriginal people then living in and around Wiluna, Western Australia. In 1975 he was appointed a Lecturer in Anthropology at the then Western Australian Institute of Technology, Perth. After his PhD was awarded, Dr Sackett accepted a lectureship at the University of Adelaide. He remained there for 20 years, teaching blocks and courses on the anthropology of Aboriginal Australia, and supervising the work of Honours and Post Graduate students who were researching Aboriginal people and issues. In 1995 he accepted an appointment as Manager of Land Tenure at the Central Land Council in Alice Springs. In that capacity he provided anthropological advice to the organisation, co-ordinated the work of consultant anthropologists, supervised the work of members of the Land Tenure anthropological staff and engaged in land claim research. Since 1998 Dr Sackett has worked as a full time consultant. Since then, he has researched and reported on multiple native title claims around Australia. He is also a Fellow of the Australian Anthropological Society.
365 Dr Sackett prepared one report for the court. His conclusion was that there was an absence of evidence as to what tribe or language group traditionally occupied the overlap area.
366 Professor Sutton holds a PhD in anthropology, an MA (Honours) in linguistics, and a Bachelor of Arts (Honours). The subject of his PhD thesis was the traditional land ownership system of the Wik people and its contemporary political dimension. Since 2010 he has been Affiliate Professor of the School of Earth and Environmental Sciences at the University of Adelaide and of the Division of Anthropology at the South Australian Museum. He was an ARC Professorial Fellow at both institutions between 2004 and 2009. In 2008 he was Visiting Professor at the Department of Linguistics at SOAS (previously the School of Oriental and African Studies) at the University of London, and from 2003 – 2009 he was Honorary Research Fellow at the Institute of Archaeology at University College London. Professor Sutton has been a primary researcher on multiple land claims in the Northern Territory and Queensland, and provided secondary advice on many more. Since 1969 he has conducted field work at various remote Australian locations. He is a Fellow of the Academy of the Social Sciences in Australia. He has also published widely on ethnography, anthropology and linguistics relating to Indigenous Australians.
367 Professor Sutton filed two reports, the second of which was supplementary to the first. His opinion was that the Karingbal people forming the Brown River claim group did not constitute a distinct society but rather a sub-group of a wider society. Nevertheless, their identity, and its location on the Brown River, has persisted since colonial times. He concluded, however, that the Brown River people no longer practice most of the classical cultural traditions which they claimed as theirs.
368 He suggested that, while Jemima Lee had strong personal connections to the claim area, it is unclear what her language and country was, and her daughter Amy Miller’s descendants were most likely Wadja. Professor Sutton was satisfied that Bidjara country included the upper Warrego River System as far up as Carnarvon Gorge at sovereignty, but not the Brown River catchment or Planet Downs. He considered that Bidjara people continued to have a close connection to Carnarvon Gorge, but that Bidjara country did not extend further to the east.
7.2 Anthropologists’ joint report
369 All anthropologists agreed with Professor Sutton’s conclusion that the Bidjara traditionally identified with the Warrego River system as far up as the south western edge of Carnarvon Gorge and inside the Gorge, which is not in the Warrego River system, and with what is now Carnarvon National Park. Doctors Sackett and Hutchings agreed with Professor Sutton that the Bidjara identified with a large number of other places further to the west, including those identified in Rusty Fraser’s evidence. Professor Langton differed on this last point, finding the evidence of other witnesses persuasive about the extension of Bidjara country across the overlap area and to its east.
370 Professor Langton considered that Bidjara songs, dances and stories have continued since sovereignty and that any difference in practices through the generations is explicable and does not amount to a severance of continuity. She acknowledged there had been revitalisation of some traditions, but noted that this did not imply recent invention. Rather, revitalisation is a legitimate means of maintaining Bidjara culture within a contemporary setting. Professor Sutton agreed with this latter point, but required supporting evidence on the other points. Dr Hutchings also required supporting evidence, while Dr Sackett gave qualified agreement with some assertions of Professor Langton.
371 All experts agreed that the Brown River claimants no longer practice in their original form most of the cultural traditions Dr Hutchings identified in her report, but that a number continued albeit in varying degrees in a transformed, attenuated, or intact state. Dr Hutchings qualified this point with the identification of traditional practices such as understanding of kinship structures and relationships, ritual and spiritual beliefs and practices, which remain. Professor Sutton and Dr Sackett agreed that these practices remained practices of some Brown River claimants, while Professor Langton agreed with the caveat that very few members practiced those traditions.
372 Professor Sutton and Drs Sackett and Hutchings agreed that contemporary Brown River people in historical times have experienced different kinds of social milieus including pastoral stations, Woorabinda, town camps and cities. These differences have reduced the degree of sharing of norms and practices by comparison with the relative uniformity that one would have expected at sovereignty.
7.2.3 Descendants of Jemima Lee and Amy Miller
373 Professors Langton and Sutton concluded that Amy Miller spoke a language closely related to Bidjara. Professor Sutton and Drs Hutchings and Sackett agreed that the language was Wadjigu, while Professor Langton concluded that Amy Miller’s language was unclear. Professor Langton was of the further opinion that linguistic evidence suggests Jemima Lee could be included as an apical ancestor in the Bidjara claimant group.
374 The four anthropologists gave concurrent evidence during proceedings over two days.
7.1.1 Society and culture at sovereignty
375 Dr Hutching reiterated that Aboriginal pre-sovereignty society in the area of the Brown River People’s claim involved the following characteristics: a four section class system; exogamous marriage between two marrying classes or moieties; a combination of diverse totems associated with these marriage classes that were inherited matrilineally; transmission of rights and interests in language and country inherited through patrilineal descent; totemic beliefs; punishments and reprisals; trade with other groups; ceremonial meetings with other groups; male initiation practices; seasonal hunting practices; mourning practices including smoking ceremonies and the use of mud daubing and ritual cutting to indicate a period of mourning; increase rituals; female birthing practices; complex rituals associated with death and burial (burial caves; burial cylinders); rights to be buried on country; rituals related to appeasing spirits in country and ancestral spirits; and creation stories or mythologies. Dr Hutchings said that there was not enough evidence to be more specific about the system of land tenure at sovereignty, beyond that there was some sort of communal system. There would have been a differential distribution of rights among local groups but, again, more detailed evidence was lacking. Finally, she noted that, apart from language and geographical boundaries, the Karingbal and Bidjara systems of custom would have been similar at sovereignty. Dr Sackett and Professor Sutton essentially agreed with this enumeration of features. Professor Sutton added that the societies in question would have strong dynamics of seniority, an effective gerontocracy, being run “entirely” by elders with children learning through silent observation. I did not understand Professor Langton to disagree with these views, although she did emphasise the extreme nature of some of the mortuary practices of this region.
376 Dr Sackett noted that, although the primary method of recruitment to the group would have been patrilineal, there would have been other ways of recruiting members to a group, including adoption. Professor Sutton’s view was there was limited evidence on adoption practices at sovereignty, although its existence was a probability. Professor Sutton also added that other relationships to country, such as through the mother, mother’s brother, grandparents and spouse would be significant. These relationships would give rise to contingent rights, such as foraging on that country.
7.1.2 Continuity from sovereignty
377 Professor Langton considered that:
the Bidjara People really do know their cultural heritage despite the impact of settlement in the area, the impact of government decisions, the Aboriginal Protection Act, the removals…
378 Professor Sutton made the following general observation:
I think all of the groups represented here come to the court with a mixture of continuities with their ancient past, radical discontinuities with that past, transformations of things that were there and are still here but are changed in form or practice, and thirdly, what you might call restorative attempts in relation to the culture revitalisation…
379 Professor Sutton identified several absolute continuities from pre-sovereignty Aboriginal society apparent in all claimant groups in these terms:
● One’s primary entry into a land holding group remains that of descent from an ancestor. Every infant is born into some group or another …competence, presence, knowledge, responsibility are not about the entry point into the group but the rise to a strong position in the group.
● The interest in land is always communal and not individual, it’s shared. And the way it has been shared has changed through time in my view, but the basic principle of a communal entitlement to the estate remains unquestioned.
● The land is not considered to be a chattel, you can’t bequeath it in a will to your children, you can’t exchange it, you can’t sign up and pay your dues and become an owner. In other words, the estate itself is regarded as inalienable, it’s not a market object.
● All assert a spirit connection with the country, principally to their own ancestors and their old people.
● They believe they have a responsibility to protect the tombs of the old people within the area that is the subject of this matter.
● All assert an incest taboo of some sort.
380 Professor Sutton also identified several continuities which had been transformed to greater or lesser extents from pre-sovereignty Aboriginal society apparent in all claimant groups in these terms:
● All groups have an emphasis on extended family, that is a distinctively ancient thing. They have an emphasis on valuing kinship – kin-relatedness as a basic positive. An example of this is the development of the Auntie and Uncle titles which developed and evolved out of the old values, but it evolved in a modern situation where people are often – not actually sure how they’re related to someone or they haven’t been brought up to think of themselves as being specifically related, but represent a continuation of the shared norm of valuing both kinship and seniority.
● Seniority is another domain and we’ve heard evidence of the shared value of respect for elders.
● Some emphasis on super natural domains, which again is a continuity, [whilst noting that the “eungies” and other “little hairy men” referred to by witnesses] at are one end of the spectrum in terms of the power and profundity of spiritual beings in the ancient Aboriginal systems… the dreamings or stories, or histories as they’re called in far western Queensland, they’re not just going to frighten you at night or maybe do something good for you when you’re sick, they actually created the world. That’s the big difference, and they formed the rivers and the valleys and so on, and the story of a snake moving along the river system being specifically heavily located in a permanent water body, that’s all classical ancient Aboriginal thinking… It’s unsurprising that it’s here. [Specifically], there has been continuity of transmission of the rainbow snake entity and knowledge and respect for it and awe of it, with some break in the way the language was learned.
381 Discontinuities are also apparent, as Professor Sutton described:
● There is no evidence of those particular two structures [kin superstructures of skins and moieties] still operating as norms for the selection of marriage parties, although they are part of the cultural memory.
● Another area where there has been a lot of loss, and this applies to all groups, is in the ability to name places in the country in language… But for there to be such a loss of place names has to be put against whether or not there has been a loss of the meaning of input to those places; a separate issue.
382 When asked about the evidence of Raymond Saltner concerning membership of the Karingbal, Professor Sutton explained in these terms:
I read Mr Saltner’s statement of a rule and I say projection of his personal circumstances and ancestry. And that would be, in my experience of the east and western desert, that would be quite normal, and very traditionally minded people to take their own cases and then project it…This is different, and I do think that this variety of statements of rules does indicate a new degree of lack of sharing of common norms for assigning country
383 Nevertheless:
…it’s only one person saying that. And I am quite happy with Dr Hutchings’ analysis of the group as a whole, as one in which descent through either parent is the rule. And that in that, they have bonded together.
384 Professor Sutton also identified four types of social histories of Aboriginal people in this region since 1860. As he put it:
● One is a strongly pastoral based experience and some families have maintained that up until the present…
● Others were incarcerated into larger communities under the Act – and Woorabinda is the key one here. So those people’s experience of growing up and living together is very much more centralised, very much in terms of mixed family groups because there are hundreds of people instead of just six or 10 on the station… But their movements are very restricted. Moving between communities was controlled…
● Thirdly, there’s the tenant camps – in this case, they’ve been referred to as yambas or yumbas. These were the town reserves. Those people that were, in a sense, midway between the station people and the mission people and often moved between the two. Sometimes they were seen as a pool of labour and people would come and pick up labour just for the day, sometimes.
● Cities, Rockhampton and Brisbane particularly.
385 Professor Sutton observed that one thing missing from the evidentiary landscape in this case was any systematic study of the norms of kin relationships which made it difficult to assess the strength of this continuity or discontinuity. Only Dianne Evans gave evidence demonstrating that she “retains an ancient classificatory kinship system in her mind” whereas the balance of the evidence about this was very patchy, although the weight of it suggested that the system had not continued.
386 Professor Sutton also made this point (Professor Langton having made observations to similar effect):
[T]he identity of Bidjara seems to have persisted and Gungabula, which was still remembered obviously in the 1960s and seventies, and [Nguri] doesn’t seem to have been quite as strongly remembered. They seem to have both been, if you like, submerged in a greater Bidjaraness. And that kind of process has occurred all over Australia and I could cite a dozen cases of something similar and it’s often called – well, I call it conjoint succession. In other words – particularly when there’s radical depopulation, which has occurred virtually everywhere, the surviving people needed to – were more or less forced to get together…
387 Professor Sutton stressed that incorporation of other groups, in this case the Nguri and the Gungabula into Bidjara, had to be voluntary as “annexation of other people’s country is utterly contrary to Aboriginal law”.
388 Professor Langton stressed that over the last 100 or so years the Bidjara “have remained a very strong group” and acted to protect the cultural heritage sites they claim as theirs and to pass on traditional knowledge.
389 The experts agreed that Karingbal’s current practice of marrying outside the tribal group was a discontinuity with the pre-sovereignty practice of marrying by reference to one’s section but within the tribe. The anthropologists also said that there was not enough evidence of the contemporary system of kinship to say decisively whether it continued in its historical form. Dr Hutchings conceded that the transmission of Karingbal tradition whereby particular families have responsibility for certain parts of the country has been “uneven”. In response to a point in Professor Sutton’s report that the loss of knowledge about the boundaries of a group’s country can represent a departure from the observance of traditional law and custom, Dr Hutchings accepted this was a possibility, as did Dr Sackett, although he noted that members of the Brown River group appeared to have good knowledge of what they considered their country. Professor Langton did not agree with this proposition.
390 Other than Professor Langton the anthropologists considered the uniformity of the claimed rights and interests of all Bidjara people to all Bidjara country unusual, as most traditional Aboriginal societies were marked by notions of sub-areas in which particular groups had special rights and interests (for example if a person is born in a particular part of their country). Professor Sutton said:
Basically, the smaller the country, the fewer the – well, the less the likelihood of internal differentiation or subdivision. I know of distinct languages which have only one estate assigned to them. In other words, there’s no internal differentiation. So, in principle, it’s possible. And I’m talking, there, about the classical past, as recorded by old people, brought up in the 19th or early 20th century. In areas that have not been seriously, or such – so seriously impacted by external forces as this one – you would normally expect, in this part of Australia, for there to be a series of patrilineal claim estates in the area the size of the overlap. You might expect there to be, maybe, half a dozen or so in the area west of there, and the Bidjara area, maybe, 20 or 30.
…
But, as I said before, in the case of Wik Waya, which is north, in between the Archer River and the Embley River, all that internal differentiation collapsed due to population collapse and external impacts. And they maintain that area, very much, as a single entity with no internal differentiation. So I think it’s an expectable reaction to (a) population decimation, (b) cultural change, etcetera, that you do – you can end up with a single language area with no internal subdivisions, other than family history associations with particular parts of it.
391 All the experts agreed that, as multilingualism was common among Aboriginal people, particularly in the past, the language spoken by a person was not an indication of which tribe they were, unless the person so identified themselves. Nor was language necessarily only spoken on the country of the people to whom it belonged. Professor Sutton further explained that, while land and waters may have a particular linguistic identity, this would not be co-extensive with where the language was actually spoken. Language, however, does have important spiritual and cultural implications.
392 Professor Sutton explained that, under the impact of colonisation, many languages were wiped out and were replaced by one, surviving, language that spread through a region. It may be, therefore, that subsequent generations would speak a language which is different from their country identities. Professor Sutton said:
I suspect this explains why Kevin Albury’s speech, which he named Garingbal, actually, in my view, is a form of Bidjara but he grew up in an area where Bidjara had spread amongst that earlier generation and they were losing their own languages and Bidjara was going to be the survivor as a language spoken. We’re not here talking about territory.
393 Professor Sutton also made the point that:
Lake Nuga Nuga would obviously have been of regional significance. No matter who owned it at the local level, it stands out and the Gorge is the same, in my view. It stands out. If they didn’t have multiple names in the old days, I would be surprised.
394 Professor Langton agreed with the testimony of a number of Bidjara witnesses that Aboriginal people would not name places outside their own country in their own language, except in “extraordinary circumstances”. Doctors Hutchings and Sackett and Professor Sutton disagreed with this proposition.
395 In respect of the Breen tapes and the language of Amy Miller, Professor Sutton said:
It’s clear on the tape that she doesn’t say that [Gurrinjabool]. She pronounces it the way Gavan Breen says it, but he says it first. So there’s a possibility that she’s copying him. But she says she knows the term. So I think that’s unlikely. He pronounces it, “Gurringbal”.
396 Professor Sutton explained:
…she pronounces it “Gurringbal”. She doesn’t say, “Gurringibal”. It’s my view that the only source of that pronunciation of which I’m aware is a possibility is the spelling in a book by Professor Dixon on the languages of Australia, published in 2002, which as far as I know is unique in spelling the name of this language as – G-a-r-i-n-j-b-a-l – and that “j” equals “y” as in German “ja”. So its pronunciation actually is Garinjbal and that’s – G-a-r-i-y-n-b-a-l – if you want to use my particular form of script. It does not say Garinjbal or Garinjbal. Now, whether it has come from that literary source into that applicant group’s speech, I don’t know, but I do think that the absence of any other source than Dixon on that –as a possibility- as a source for that pronunciation, I think makes me doubt that they [ie the descendants of Amy Miller] did hear it.
397 Doctors Sackett and Dr Hutchings agreed.
398 When asked whether continuity of language was critical to the continuation of a group holding traditional laws and customs in common, Professor Sutton agreed that such continuity was present for the Bidjara and not for the Karingbal and said:
The difference is one in which – in one case, the evidence of continuity of a – of a – of a normative practice is there. In the other case, it’s not there. They’re not normative practices to do with things like the passing of rights and interests to the next generation, for example, nor about how does one acquire the authority to speak for the country. But it’s a behavioural reflection of – where it has – where it has continued, it’s a behavioural reflection of what I would regard as a very typical, classical view, which is that one’s possession of language means also one’s possession of the sacred estate that comes with the language. So it is not just a matter of continuity of secular culture.
399 Professor Sutton later returned to this issue saying:
[A]ll the groups in this case have put their claims on the basis of being a group that is defined in part as a language entity. In that sense, the claimants themselves have put language centre stage and, secondly, as I’ve said, although we don’t have anything really concrete in this case, but my understanding very generally from senior people elsewhere is that language is a sacred endowment, and to the extent that people subscribe to that identity through their ancestry, and those ancestors, most of them now are in the realm of spirits, language actually crosses over various cultural domains to do with the afterlife, to do with the founding of the world and those things, so language is – is very important in this case, and the reason why in the Aboriginal world generally, as I understand, you can’t take another person’s country is not just that it’s against the law – law to thieve or carry out theft; it’s actually about supplanting the spiritual identity of others, and that’s a most serious and heinous crime.
400 Dr Sackett said:
I think what we see in a number of instances in – more widely in Queensland, is the reduction in the knowledge of language, but the maintenance of an identity and relationship to that language name which becomes the tribal name in many instances. So I don’t see – to go back to your question, I don’t see that as fatal to native title.
401 Dr Hutchings agreed with Dr Sackett and observed that the emphasis in the evidence on language had been disproportional to its importance.
402 Professor Langton said:
I don’t believe, although I haven’t thoroughly read the transcripts, that we’ve heard any evidence in relation to places of religious significance from Garingbal – Garingbal People or people who assert themselves to be Garingbal. But we have heard evidence from Keelen [Mailman] and others about places, and they visited those places with elders who spoke the language. And we’ve all been trying during the lunch hour to listen to some of those elders speaking various languages actually. And, clearly, some of the Bidjara applicants were taught about these places in their language and that is very, very significant. It goes to the continuity of Aboriginal laws and customs.
403 Professor Sutton did not have any doubt about the Bidjara traditional interest in the location of former Nguri country so that Bidjara people can be regarded as traditional owners of the Carnarvon Gorge and the national park associated with it, probably being a shared interest with the Brown River people in that area – a so-called “company” area. This is because where there are two language areas coming together, typically the places that lie along the edge can either be one or the other, but frequently they can be both. As he put it:
So it would be completely unsurprising if the Carnarvon Gorge – being a spectacular place, permanent water, all the requirements for massive ceremonies, and I’m talking here maybe a thousand people at a time. What’s the other major requirement for a large ceremony that goes for two or three weeks? You’ve got to be able to fund it with food, and the macrozamias here were a hugely abundant primary source of food. It’s very, very rich in them and the archaeologist, John Beaton had made a whole study of the Carnarvon Ranges and people’s use of macrozamia, so it’s a sitter for it being of huge importance to more than one local group and of huge importance regionally. In other words people from all over the area could well have come there and I do think that’s what Auntie Rita’s comment [Rita Huggins] was about primarily.
404 Professor Sutton considered that the Brown River people, being the Karingbal, had the strongest evidence of traditional interests in the balance of the overlap area, although they “have some trouble establishing shared norms across a substantial number of domains”.
405 According to Professor Sutton, the Karingbal No 2 claimants, being the descendants of Amy Miller, “on the balance or probabilities could assert rights of interest in country through her in the area east of Rolleston and Bauhinia Downs, for example”.
406 Professor Sutton made this point about the historical maps showing tribal lands:
So Tindale’s map is really a religious map. Maps of that kind are basically religious maps. They’re maps of where every – those who created the world put the languages into the soil. So the land itself and the water in that land have a linguistic identity, character and spirit.
…
It’s one of the equivalents to country. Sometimes people will use country in the sense of where I’ve lived, but this is a much tighter, more permanent and less manipulable thing. It’s usually – people usually conceive of this as being fixed forever.
407 Further, that country in this sense is not necessarily co-extensive with where that language is actually spoken. He explained:
As I’ve said in my report, the evidence here, in this region, points to one’s primary language in the sovereignty period as coming from your father, but that doesn’t mean that you wouldn’t have very powerful and unfettered rights to make use of your mother’s language even if you didn’t say it was your country language. But it would be one that you can use and all four grandparents’ languages – I’ve heard people say to me, “I’ve got a perfect right to speak my father’s and mother’s language.” That doesn’t mean they’re claiming that country.
408 For Professor Sutton the key evidence for the Bidjara was that of Uncle Rusty Fraser. Professor Sutton said about this evidence:
[H[]e’s very specific and he’s quite systematic. He doesn’t jump around all over the place. He moves in lines and he goes from – I think from the Gorge to maybe Lethbridge Pocket, Mount Moffatt – he initially comes – he’s coming up. He comes up really from around – I think it’s .....Carnarvon and then he goes straight to Springsure. Now, for example – now, I’ve traced these out on maps and looked at the relationship between the pastoral station names and what he says and it’s clear to me that he does not leap over to the eastern side of the overlap area. He doesn’t go and name the stations he has said to have worked on in the Arcadia Valley, country with which he was obviously familiar through mustering and then he rams it home by saying, “That’s the lot,” twice, but in different terms. But he has actually also queried, what about the east? That is what about the green area? That’s my understanding of that. And he doesn’t take that opportunity if he needed it to make Bidjara claims over the Arcadia Valley.
409 Further, that:
Uncle Rusty’s evidence lines up very closely with the conclusions Tindale reached from speaking to the previous generation on more than one occasion. So there’s – the more you get a correlation and a close resemblance the more confident you feel about the conclusion. Now, this is again a balance of probabilities and conclusion, I said that quite clearly when I began my comments here by saying I had no dogmatic views in this area. The evidence is messy and fragmentary at one end and it’s fairly solid at the other end.
410 As to the Brown River people, Professor Sutton noted the following:
● There is a close correlation between the language that was recorded as the Brown River in the 1880s and that of Kevin Albury’s old brother, Tim – half brother. I put the two together in the comparison list and came out with the conclusion that they were a close dialect of the same speech rule. They were also very closely the same – almost the same as the language of Leo Freeman, which was written down by Tindale in 1938.
● It’s identified explicitly as Garingbal. Tim’s dialect is identified as Kamaru. I’ve argued in great detail in my report as to why in my view Garingbal can be an overarching name that includes Gurringbal, and they match – and there is a match with the Brown River list, which makes it in my view, because of the associations of those two with the Arcadia Valley, we’re here looking at Tim’s father, being identified with that place. If you put that together with the presupposition of patrimonial descent as the old rule then it makes it very, very likely that Tim Albury’s dialect, which he called Gundaloo, could also be known as Garingbal and also be that of the Arcadia Valley area.
411 However, he also noted the following:
There was one of the – one of the witnesses whose statements – because he had a long work history in the Gorge area from the 1980s, and he said that he didn’t see the Karingbal People there at that time. I said I was inclined to – I find his words credible. It may well have been that Karingbal People’s interest in that area or activities in that area were not focused on the Gorge, unlike those of other people. To the extent that the Bidjara Range has been learned, in part, at least, from childhood by some people, then that represents a cultural continuity with the Karingbal land, which is not in the – it’s not there.
412 Professor Sutton also explained that place of birth was not asserted by any group to be relevant to their identity. As he put it:
But if you’re born on someone else’s country, you’ve still got a personal rights and interests in that place, but you can’t claim it as your own country.
…
The trouble we have here is that the distinction between one’s inherited country as a fixed estate that’s held in common, as against one’s “run”.
…
People will sometimes use the term “country” for their run. That is the normal set up of stations, towns, reserves that they would visit and work at and stay with kin at. And I’ve heard people say that’s – you know, you say “where’s your country?” and they might give you their run and it takes some native title plans to clearly put in on the basis of the extent of travel and residence and work of the old people of the 1920s, thirties, forties. When it comes to the crunch, they usually end up withdrawing those claims to something that I would call the “sacred estate” not the biographical range.
413 Professor Sutton considered the evidence about Dusty Fraser explicable on this basis. According to his daughter Patricia Fraser, Dusty Fraser, who was Bidjara, apparently considered the Arcadia Valley to be his country and refused to work further afield in Cunnamulla. Professor Sutton said:
And because Bidjara country is like Arcadia Valley, in my view, he could well have seen it as part of his normal range where he would be free to go, he would not need permission, he would be a familiar person to others who lived in that area. Cunnamulla is a long way away, so that may have come into it. But having not heard the way he phrased it, it makes it a bit less easy to say much about it.
414 Professor Sutton also explained why the capacity to see Uncle Rusty’s own words in the preserved evidence lent that evidence more weight than, for example, the indirect reports of views of Dusty Fraser and others (including reports about things Uncle Rusty or Dusty had said). As Professor Sutton explained, when he was giving evidence, Uncle Rusty held the floor and had the right to speak alone, in distinction from the group context in which, for example, the boundaries of the Bidjara claim had been drawn up. The group context is a different social setting and involves “a certain amount of compromise”. Moreover, the record of Uncle Rusty’s preservation evidence is contemporaneous. The record of what he said elsewhere is both indirect (that is, is being reported by others) and not contemporaneous. The same is true of all evidence from witnesses about what someone said in the past. In respect of the indirect evidence in the witness statements of Bidjara people that Uncle Rusty had said Lake Nuga Nuga was Bidjara country, Professor Sutton said:
I think I’ve said in my report that where that has come up in affidavits or statements of the last few months, I’m inclined to wonder about whether the person remembered him saying that in a correct way. Rusty Fraser said all around up to Rolleston plus Waranella [sic] was Bidjara country. Again, the same applies.
415 By this Professor Sutton meant that context was critical as, for all such evidence, whether attributed to Uncle Rusty or others:
The same applies in terms of wanting to really hear that from clearly oneself in the context and whether he’s talking about his pastoral life as a stockman, as a ringer, and whether that’s part of it.
416 Dr Sackett agreed with these views about the difference between “country” and “run” and the potential for listeners to blur the two. A person’s country is the land to which they belong by tribal right and custom, derived from ancestry. A person’s “run”, as I understand it, is a post-colonisation concept which identifies the land on which the person and/or their family routinely worked and lived. Aboriginal people who worked on stations may have had “runs” different from or more extensive than their country.
417 Dr Sackett otherwise said:
To the extent that my views have changed it relates to Bidjara in the upper Warrego area and then coming over the range into the Carnarvon Gorge area and I would see that as a change, and that’s largely related…to evidence that has come to light that Rusty Fraser presented and what people have said about the evidence in that regard as well.
418 While Dr Sackett found the ethnographic record very “mixed” in relation to the overlap area he found Professor Sutton’s analysis convincing that the Brown River people or Karingbal had rights and interests in that area. He also made this comment:
Professor Langton mentioned Bidjara People being born and raised and resident in the overlap area. Yes, I would see that to be the case but that’s not the basis of anybody’s claim here, as I understand it, it’s more a descent from original ancestors and bloodlines.
419 Dr Sackett, however, agreed also with Professor Sutton’s view that the evidence suggested that the Karingbal did not seem to have a presence in the Carnarvon Gorge area from the 1960s to early 1990s (in contrast to the Bidjara). Dr Sackett said:
That Bidjara people were protecting the art and the history of Carnarvon Gorge is understandable, and that Karingbal did not seem to be in that area. They may have been doing something else or working on stations that – into the sixties we know, and then there’s that movement away from there. So it may be they didn’t have the same degree of presence. And I think the Bidjara language, it seems to have been picked up by some, but the Bidjara language has been maintained, if you like, through the Bidjara dictionary, and there is no Karingbal dictionary equivalent.
420 Dr Hutchings said that the evidence had confirmed to her that:
Brown River People have – as they’re called in this proceedings have rights and interests in the overlap, but base that on the fact that they don’t necessarily go beyond that area. They don’t go west of the Carnarvon Ranges or on to that site. So they’re very confined within that area, they have detailed knowledge of sites, of the country. It goes back through a number of generations. So from that point of view I think that that’s important that they’ve retained that and they don’t expand that sort of – they don’t expand beyond their boundaries. So from that point of view, I think that’s one of the most important things. That I do think that that Bidjara have rights and interests in – ceremonial rights and interests in the Carnarvon Gorge and that has come out in the evidence.
421 Dr Hutchings did not think the evidence indicated any traditional lands of the Bidjara further to the east than Carnarvon Gorge relying, in particular, on the evidence of Uncle Rusty Fraser.
422 Professor Langton confirmed her position that, while she had not been able to carry out the research necessary due to lack of funding, the evidence pointed to the Bidjara having traditional rights and interests not only in Carnarvon Gorge but also further to the east across the overlap area. She particularly relied on the evidence of the Bidjara people in the proceedings to support this conclusion including the fact that some Bidjara people regarded both the descendants of the Wadjigu and the Karingbal in fact to be Bidjara or indistinguishable from Bidjara. Further, according to Professor Langton:
I have to say that and I think just, you know, claiming on the basis of watersheds and mountains is really not the Aboriginal way of doing things, you know, you have to claim your estate on the basis of descent and I think Bidjara claimants have established on the basis of descent and being on country and their continuity with country, that they do have native title interests in the green area [the overlap area].
423 Professor Langton did not think there was evidence that Carnarvon Gorge was “company” or jointly held land. However, she did consider it probable that there were shared burial rights in the area. As she put it:
They don’t, you know, have membership of a clan, but they also belong to a family, and in that one family necessarily they would have, if you take a typical Aboriginal extended family with generations and four grandparents, eight great-grandparents, you’re going to have people with lots of different languages in the one family group, and they’re going to all get together to bury their dead. I don’t have any doubt that they shared those rights to bury their dead, but I doubt very much – I cannot agree on the evidence that this is shared country or company land.
424 As to Lake Nuga Nuga, Professor Langton referred to an extract in her report from Robert Graham in which Uncle Rusty is said to have explained that the lake is associated with the same rainbow serpent as Carnarvon Gorge, the name being derived from “naga” meaning “watching”. Professor Langton said:
I think that’s just telling us that according to Graham, Rusty Fraser is definitely putting Lake Nuga Nuga in Bidjara territory. He is following that Mundangarra across from Carnarvon, and I believe that, you know, the evidence shows that his descendants were taught that by him, and they’re explaining in their evidence what they were taught by him.
425 Professor Langton also did not accept that the evidence indicating the presence of the Karingbal so far to the west of the Mackenzie River was persuasive. To the contrary, she said:
All the way through these Woorbinda sheets done by Tindale, we have evidence of Bidjara ancestors living on the overlap area and saying that this is their country or their children’s country.
426 Professor Langton also made this point:
It is my experience that no elder would ever teach their children to dance and sing songs on somebody else’s country. Absolutely against the law right across Aboriginal Australia. No way in the world would that happen. But he took them to Arcadia Valley and Carnarvon Gorge to train them to dance and to teach them to sing, to teach them the songs. It was his country. Had to be. That’s how Aboriginal law works. True, you might attend a ceremony at somebody else’s country. That is, you know – something refers to them as alliance groups. People would perform initiations together, so the father-in-law has to cut the boy and all that. So, you know, the lateral relations have to attend. But that’s not what is being said here. He is not saying this is an initiation ceremony. This is not an alliance ceremony of any kind. He’s taking his own kids, his Bidjara folk, to these places to teach them to dance and sing. That’s a different matter. Never ever have I ever seen somebody teach somebody to dance traditional dance, sing a traditional song on somebody else’s country. It just wouldn’t happen.
…
Rusty Fraser said all around up to Rolleston, plus Wallaroo and Warinilla etcetera
was Bidjara country. Keelen [Mailman] gave that evidence. Yes. I believe that. That’s why the boundaries are where they are.
427 The anthropologists agreed that a group holding totemic or dreaming affiliations with particular animals did not necessarily live in proximity to the animal, and therefore that those affiliations were not a marker of a group’s boundaries.
428 Professor Paul Tacon and Mr Allan Lance provided the Court with a joint archaeologists’ report.
429 The experts agreed that the presence of rock art indicated an indigenous presence in the area. However, they also agreed that archaeology as a field of knowledge did not lend itself to answering questions such as which specific group of people produced the rock art, artefacts or burial sites in the overlap area, or occupied the region when they were produced.
430 Professor Tacon noted that “there is evidence in archaeology indicating that people from neighbouring areas sometimes left rock art behind on the land of other groups.” He added that some areas were observed to be shared between neighbouring groups, and that “sometimes aspects of the rock art record reflect this”. Mr Lance observed that as “clan territories change over time so the affiliation of one group in a particular area may shift.”
431 Regarding the “V” sign, Mr Lance attested to “a deeply held and almost mystical belief” which has been often brought to his attention by the Bidjara claimants. Professor Tacon pointed out that the signs are found in the rock art in many parts of Queensland, as are net/grid patterns. However, six finger/toe figures, according to Professor Tacon, are not common, although he has recorded a six-fingered figure in the Northern Territory and is aware of such figures in parts of North America.
432 Professor Langton interviewed a number of Bidjara people and recorded parts of the interviews in her fourth report. She interviewed Jackie Huggins, the daughter of Rita Huggins. According to Jackie Huggins, her mother showed her the moss garden in Carnarvon Gorge and said that it was a birthing place and a very important place in Bidjara country. Her uncle Robert Bundle said all that area (Carnarvon Gorge) was Bidjara country and he never mentioned the Karingbal. The identification of Carnarvon Gorge as Bidjara country is consistent with the evidence of Uncle Rusty Fraser.
433 Professor Langton also interviewed Olivia Robinson, the grand-daughter of Nellie Fraser. Ms Robinson said she spent a lot of time with her grandmother and learnt from her that “Bidjara country stretched from Charleville, Augathella, Springsure and Carnarvon National Park” and “…there’s no doubt in my mind that I’m Bidjara. I’ve grown up with an understanding that Bidjara country is what I have described – Charleville, Augathella, Springsure, over Carnarvon Ranges, Carnarvon National Park”. She said she did not know how many times she had been told Carnarvon was Bidjara country. She also described the stories of the Moondigarra her grandmother told her. She interviewed Uncle Rusty (her grandmother’s brother) for the Queensland Museum and he sang traditional songs to her. She described a ceremony the Bidjara held in August 2012 for the return of some remains from the Queensland Museum. The ceremony was held in Augathella and the remains returned to Mount Tabor. Ms Robinson’s description of Bidjara country is consistent with the oral evidence of Uncle Rusty.
434 Professor Langton interviewed Fred Conway, a Bidjara man who was employed by the National Parks and Wildlife Service (Qld). He worked in and around Carnarvon Gorge and Carnarvon National Park explaining Bidjara culture to visitors. His grandmother was Lucy Conway, recorded by Tindale as “Pitjara” of Maranoa, while his mother was born on Mantuan Downs between Tambo and Springsure. Fred Conway told Professor Langton that Carnarvon Gorge was a sacred place for the Bidjara containing both a birthing place and burial grounds. He understood there was a meeting place for Bidjara and Karingbal somewhere in the Carnarvon National Park. He spoke to Uncle Rusty Fraser who came to the Gorge to sing songs and said “the whole area around the Gorge and Rewan Station was Bidjara country”. Rewan Station is in the overlap area to the east of Carnarvon National Park. Uncle Rusty does not mention Rewan in his oral evidence as Bidjara country. Mr Conway also said that when he started working in the Gorge in the 1980s there were no Karingbal people. Mark Albury, Kevin’s son, first turned up in the mid 1990s and Mr Conway told him Bidjara stories about the gorge. Mark Albury did not have any Karingbal stories about the Gorge.
435 Ray Kerkhove holds an MA in history and religious studies and PhD in comparative religious studies He prepared a report in October 2010 entitled “Bidjara signs”. Mr Kerkhove was not available for cross-examination on his report. His report records what he has been told by Bidjara people about rock art and markings which are significant to the Bidjara. Dr Kerkhove associated “V”, “six fingered and toes” and other signs at places such as Aramac and Blackall (well to the west) with artwork at Carnarvon Gorge. Figure 19 locates artwork with Bidjara signs as far east as Lake Nuga Nuga and Rolleston. Dr Kerkhove described his own report as “at best a light and preliminary survey into a complex area of research” with the consequence that “a great deal more recording and analysis needs to occur” before anything could be “fully established”. The anthropologists, other than Professor Langton, did not accept the foundations of Dr Kerkhove’s analysis or his conclusions. His conclusions are also inconsistent with those of the archaeologists who agreed that archaeology as a field of knowledge did not lend itself to answering questions such as which specific group of people produced the rock art, artefacts or burial sites in the overlap area, or occupied the region when they were produced. Despite this Dr Kerkhove’s report does confirm the existence of strongly held beliefs amongst the Bidjara that certain signs or motifs are of great significance to Bidjara cultural traditions.
436 It is also relevant to note that since 1997 there have been numerous claims for native title by the Bidjara. For example, on 11 July 1997, a claim was lodged over land well to the west of the overlap area which included Barcaldine, Blackall, Bogarella, Babbiloora and Barngo and took as its western-most extent land near Bullen Bullen (still well to the west of Carnarvon Gorge). In this claim various Lawtons and Frasers as members of the Bidjara Council of Elders said their relationship with this country was acknowledged by others including “among Garingbal”.
437 Geoffrey Bagshaw, anthropologist, prepared an interim report to the court as a court-appointed expert in October 2002 in respect of the Bidjara No 2 and No 4 claims. Mr Bagshaw interviewed numerous people who identified as Bidjara. He reported that:
(1) All persons interviewed identified blood ties as the principal basis of their identification as Bidjara. This is consistent with the evidence in the present case.
(2) Marriage, residence and place of birth, of themselves, are insufficient for any culturally sanctioned assumption of Bidjara identity. This is consistent with the evidence in the present case.
(3) Adoption may also be recognised as a means of bestowing Bidjara identity. This is consistent with the evidence in the present case.
(4) Such identity can never be forfeited, abandoned or lost. I understand this to be consistent with the evidence in the present case.
(5) It is possible that Bidjara identity used to be conferred through patrifiliation (fathers) or matrifiliation (mothers) but, if so, the current position is that descent from a Bidjara mother or father is sufficient. This is consistent with the evidence in the present case.
(6) People identified as Bidjara via descent from their father or mother include Robert (Bob) Mailman, Reginald (Rusty) Fraser, Robert Raymond Robinson, Leslie Taylor, Keelen Mailman, Edward and William Lawton, Cedric Lawton, Neil Fraser, Jo-Ann Fraser, and Patricia Fraser. This is consistent with the evidence in the present case.
(7) All informants identified Mount Tabor as part of Bidjara country. This is consistent with the evidence in the present case.
(8) Most informants believed that all Bidjara could speak equally for all Bidjara country. This is consistent with the evidence in the present case.
438 Mr Bagshaw’s report also records people identified as Bidjara in the fieldwork of Tindale and Birdsell at Woorabinda and Cherbourg in 1938 including many by the names of Barnes, Bundle, Fogarty, Hill, Holt, Jack, Richardson, Punch, Solomon, as well as Jack Brown, Ned Collins, Adrian Conway, Willie Llanglo, Lucy of Maranoa, and others. Bagshaw sets out detailed genealogies of the Lawtons, the Mailmans/ Geebungs, the Turners, the Murphys, the Coulihans, the Princes/ Taylors, and the Frasers.
439 I also note that, in Mr Bagshaw’s experience, contested identity is common in Aboriginal Australia, usually directed at the obtaining or maximising of personal advantage and may be said to “constitute an integral dimension of local political life in much of contemporary Aboriginal Australia”.
440 Informants for the purpose of Breen’s work (1973) identified as Bidjara included Frasers, Solomons, Gadds, Geebungs, and Mailmans. Some Lawtons, a Thompson and a Mailman (who was unsure) identified as Gungabula. Under Wadyigu, Breen has identified as informants Amy Miller and Jessie Turner.
441 Dr Hutchings interviewed Kevin Albury in the presence of Marlene Leisha, Carol McLeod (who are descendants of Jemima of Albinia and Amy Miller) and Charles Stapleton on 1 October 2007, before the Karingbal No 2 claimants included the Freeman family and split into the Karingbal No 2 claimants and the Brown River people due to the dispute about Jemima of Albinia and Amy Miller not being Karingbal. The conversation as recorded concerned the Freemans. Kevin Albury referred to Philip Obah, the son of a Freeman, and said “he reckoned they [the Freemans] were all Wadja”. Kevin Albury did not know how his family was related to the Freemans saying only that “I wouldn’t be too sure on this but Mum had a brother and he might have married a Freeman”. Charles Stapleton added that his mother had told him something but Kevin Albury clearly thought this information wrong. Kevin Albury then said this about the Freemans “I can’t make head or tail of them…I am prepared to take them on if they think-if they think they’re Karingbal but my mother as related to ‘em…”.
442 Rosalind Kidd provided a report entitled “Karingbal People” to Queensland South Native Title Services Ltd in April 2011. In this report Dr Kidd does not disclose how the people considered were identified as Karingbal. Nevertheless, the report sets out the historical records which disclose any form of connection (birth, relatives, work, residence, marriage, death) between people and places within the overlap area. Families identified as “key” include Albury, Dutton, Freeman, Langlo, Leopold, Martin, Miller, Mummins, Prince Albert, Shepherd, Suy See, and White. Langlo is clearly the same Llanglo that Bagshaw identified as Bidjara. Others mentioned in this report that Bagshaw identified as Bidjara include the Bundles, the Barnes, the Solomons, the Bosuns, the Blacks, and the Holts, amongst others.
443 A booklet entitled “A Short History of Springsure and District” published in 1959 for the centenary of the town records that when white people invaded the tribal lands of Aboriginal people around Springsure in 1859, not unexpectedly, trouble ensued, leading to the creation of police barracks, then round-ups and displacement of Aboriginal people to missions. Prominent Aboriginal people from the area are identified including Jemima who “belonged to Consuelo” who is the ancestor of the Leishas and Millers.
444 Another booklet entitled “Springsure and Rolleston” records that the Aboriginal people of the area were fiercely territorial and fought for their lands which led to massacres on both sides (white and Aboriginal). It says also that the Arcadia Valley Aborigines were known as the Karingbal and they covered an area extending from Carnarvon Range to Rolleston.
445 Various tapes are in evidence including Breen’s interviews with Amy Miller and Kruger Fraser.
446 The State provided a useful summary of the relevant provisions and principles in its opening statement. The following three sections are derived from those submissions, supplemented by other observations made in the submissions for the BRP where appropriate.
447 Section 223(1) of the NTA provides as follows:
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
448 By s 225 of the NTA a determination of native title is:
…a determination whether or not native title exists in relation to a particular area (the determination area ) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease--whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
11. NATIVE TITLE – GENERAL PRINCIPLES
449 As the State submitted:
Whilst paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo (No. 2) [Mabo v Queensland (No. 2) (1992) 175 CLR 1; [1992] HCA 23 (Mabo (No 2) ], it is the provisions of the NTA which the Court must address in any determination of native title [Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward) at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58; (Yorta Yorta) at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 (Yarmirr) at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ].
450 As explained in Yorta Yorta, native title, being rights or interests in relation to land or waters, “survived the Crown’s acquisition of sovereignty and radical title” but such rights and interests “owed their origin to a normative system other than the legal system of the new sovereign power”, the normative system being “the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned” (at [37]). Accordingly, “it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system – the body of norms or normative system that existed before sovereignty” (at [38]).
451 As the State submitted:
All the elements of the definition of native title in s 223(1) must be given effect: Yorta Yorta at [33].
452 In Ward at [18] it was explained that:
The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land and waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by para (b) of s 223(1) is connection with the land or waters ‘by those laws and customs’. Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.
453 As to the meaning of “traditional” in the requirement of “traditional laws” and “traditional customs” referred to in s 223(1)(a) and (b), in Yorta Yorta at [46]-[47] it was said that:
[46]… ‘traditional’ is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, ‘traditional’ carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are ‘traditional’ laws and customs.
[47] Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.
454 As to laws and customs, in Yorta Yorta at [42] it was said that:
…because the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.
455 In this regard, “normative content” means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society (Akiba v Queensland (2010) 204 FCR 1; [2010] FCA 643 (Akiba) at [171]-[173]). The “body of persons united in and by its acknowledgment and observance of a body of law and customs” is thus said to be a society for this purpose (Yorta Yorta at [49]), albeit recognising that the word “society” does not appear in s 223 which focuses on “communal, group or individual rights and interests” (see Akiba at [162]-[165]). For the purposes of the NTA if a society ceases to be a body of persons united in and by its acknowledgment and observance of a body of law and customs, then the adoption of former traditional laws and customs by a new society will not make those laws and customs traditional, at least not for the purposes of the NTA (Yorta Yorta at [53]).
456 Continuity is a requirement inherent in the concept of “traditional” laws and customs and s 223(1)(c) (the latter as explained in Yorta Yorta at [74]-[77]), culminating in the observation at [77] that:
The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are "recognised" in the common law.
457 Accordingly, the question is “whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs” (Yorta Yorta at [56]). This question is not to be answered by a so-called “book-end” approach, as explained in Risk on behalf of the Larrakia People v Northern Territory (2007) 240 ALR 75; [2007] FCAFC 46 (Risk FC) at [82]:
In order to carry out this inquiry it will be necessary, in so far as the evidence allows it, to examine the course of the claimant group’s observance of traditional customs and acknowledgment of traditional laws from sovereignty to the present, in order to determine if they are the same laws and customs at both times. It will be insufficient merely to examine the laws and customs of the present day and compare them with those that existed at sovereignty. Such a ‘book-end’ approach has two significant dangers. First, it may lead to a conclusion that native title has continued throughout the period, when in fact the claimant group’s customs and laws have been discontinued and later revived. Second, … if the laws and customs of the present day are not the same as at sovereignty, the book-end approach fails to ask the critical question whether the traditional laws and customs have ceased or whether they have merely been adapted.
458 Adaptation of or interruption to laws and customs does not necessarily mean that those laws and customs are no longer traditional. As explained in Yorta Yorta:
(1) “‘Traditional’ does not mean only that which is transferred by word of mouth from generation to generation, it reflects the fundamental nature of the native title rights and interests with which the Act deals as rights and interests rooted in pre-sovereignty traditional laws and customs” (at [79]).
(2) “…demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant” (at [82]).
(3) “…demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?” (at [83]).
(4) “Interruption of use or enjoyment, however, presents more difficult questions. First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question” (at [84]).
(5) “…it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, "traditional" in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty” (at [86]).
459 These propositions culminated in the statements in Yorta Yorta at [87]-[89] that:
[87] For exactly the same reasons, acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned. They would be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe laws and customs of content similar to, perhaps even identical with, those of an earlier and different society.
[88] To return to a jurisprudential analysis, continuity in acknowledgment and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.
[89] In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification "substantially" is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.
460 As explained in Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 (Bodney) at [74] a society may continue to exist even though the traditional laws and customs of that society may cease to exist. Hence:
The Yorta Yorta formulation concentrates on continued acknowledgment and observance of laws and customs because the rights and interests the subject of a determination of native title (s 225) are the product of the laws and customs of the society. It is not the society per se that produces rights and interests. Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society’s normative system are those that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional. An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.
461 As reiterated by Gilmour J in Augustine v State of Western Australia [2013] FCA 338 (Augustine) at [214] - [215] it is also relevant to recognise that:
…a native title claim group is defined by the traditional laws and customs which confer rights and interests in a group. Any definition of a native title claim group should properly be based on an analysis of those traditional laws and customs and not on the contemporary state of relations between members of the group.
…The native title claim group has an existence independent of any determination application, which existence depends upon the traditional laws and customs which give the claim group common or group rights and interests.
462 Just as the requirement for continuity is not absolute, nor is the requirement for unity. In De Rose v South Australia (No. 2) (2005) 145 FCR 290; [2005] FCAFC 110 (De Rose FC) the Full Court explained at [58] that:
… s 223(1)(a) of the NTA requires a native title claimant community or group to establish that they have rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that community or group. This proposition does not mean, however, that a claim to communal or group native title rights and interests can succeed only if every member of the claimant community or group has acknowledged and observed the relevant traditional laws and customs. It is a question of fact and degree as to whether the definition of native title rights and interest in s 223(1) is satisfied. There are likely to be cases in which a claim by a community or group succeeds notwithstanding that not all members of the community or group have acknowledged and observed traditional laws and customs. In such cases the question is likely to be whether the community or group, as a whole, has sufficiently acknowledged and observed the relevant traditional laws and customs.
463 Further, at [62]-[63] in De Rose FC:
[62] It would read too much into s 223(1)(a) to require the claimants to show a continuing physical connection to the land. ‘Connection’ is dealt with in s 223(1)(b) and, as the High Court made clear in Ward (HC), at [64], para (b) is not directed to how Aboriginal peoples use or occupy land or water. It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them. It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.
[63] What sort of link, then, must be established between the rights and interests in relation to land or waters said to be possessed by a native title claimant community or group and its acknowledgement and observance of traditional laws and customs? In our view, it cannot be stated more precisely than that the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters… s 223(1)(a) does not necessarily require claimants to establish that they have continuously discharged their responsibilities, under traditional laws and customs, to safeguard land or waters. Of course, the traditional laws and customs may provide that the holders of native title lose their rights and interests if they fail to discharge particular responsibilities. But s 223(1)(a) does not impose an independent requirement to that effect.
464 Physical separation from land does not automatically break the existence of a connection with the land by traditional laws and customs as required by s 223(1)(b) of the NTA (Mabo (No 2) at 59-60). In Ward at [64] it was said that:
In its terms, s223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. S223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a "connection" with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question.
465 In Bodney the Full Court said:
(1) “While it may be the case in a given instance that the evidence necessary to establish connection will be the same as that used to identify the claimed rights and interests…s 223(1)(b) serves its own purpose in s 223(1) and is not rendered largely redundant by s 223(1)(a)” (at [165]).
(2) “…connection is not simply an incident of native title rights and interests as such. The required connection is not by the Aboriginal peoples’ rights and interests. It is by their laws and customs” (at [165]).
(3) “…because the connection inquiry is not tied to the rights and interests claimed — though their character and their exercise may be important in a given case in demonstrating connection by the traditional laws and customs — the inquiry itself is not contrived by the nature of the rights and interests (“communal”, “group” or “individual”) claimed in an application” (at [166]).
(4) “…the laws and customs which provide the required connection are “traditional” laws and customs. For this reason, their acknowledgment and observance must have continued “substantially uninterrupted” from the time of sovereignty: Yorta Yorta HC at [86]–[89]; and the connection itself must have been “substantially maintained” since that time: Ward FC at [241]” (at [168]).
(5) “…the connection inquiry requires, first, an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws as constituting a connection of the people with the land. It is often observed, as in Ward FC at [243], that connection can be maintained by the continued acknowledgement of traditional laws and observance of traditional customs. The reason for this is that the laws and customs themselves characteristically will, in significant degree, presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships” (at [169]).
(6) “…though the connection inquiry requires the formal characterisation of the laws and customs we have noted, it equally requires demonstration that, by their actions and acknowledgement, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs” (at [171]).
(7) “…an effect of European settlement on aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land …It may have subsisted at a spiritual and/or cultural level… and for this reason such evidence as there may be of attempts to overcome the absence of physical presence on land that is claimed is of real importance…” (at [172]).
(8) “…a requirement of connection “involves the continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and customs … which may be expressed by its physical presence there or otherwise”: [Sampi v Western Australia [2005] FCA 777 (Sampi) at [1079]; see also Neowarra [Neowarra v State of Western Australia [2003] FCA 1402] at [353]” (at [174]).
466 While physical absence does not necessarily prove lack of connection it is nevertheless evidence relevant to the issue of continuity. As explained in Risk FC at [104]:
A claimant group that has been dispossessed of much of its traditional lands and thereby precluded from exercising many of its traditional rights will obviously have great difficulty in showing that its rights and customs are the same as those exercised at sovereignty… It is not that the dispossession and failure to exercise rights has, ipso facto, caused the appellants to have lost their traditional native title, but rather that these things have led to the interruption in their possession of traditional rights and observance of traditional customs.
467 In Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135; (Alyawarr FC) at [92] the Full Court said:
It may be that not enough emphasis has been placed on the idea of continuity of observance as a manifestation of connection. The usage in Mabo (No 2) can constitute extrinsic material to aid in the construction of the statute. The use of ‘connection’ as emphasising a requirement to show continuity of association with the land by observance and acknowledgment of traditional law and custom relating to it gives proper recognition to its origins in the Mabo judgment. It involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs. This relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it.
468 As the State also submitted:
Importantly, the focus is not upon whether “the community that existed at sovereignty may have continued to exist over subsequent years”, or whether “social links between the several related families survived”: the focus is on whether there has been continued acknowledgment and observance of laws and customs [Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63; at [70]-[80] especially at [73], [74] & [80]) per Finn, Sundberg and Mansfield JJ].
469 In other words, the question is not merely whether a society has continued. The question is whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs of that continued society, albeit recognising that change, adaptation and interruption may not be fatal in that “[s]o long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional” (Bodney at [74]). Putting it another way, for the purposes of the NTA, it is the continued acknowledgement and observance of pre-sovereignty laws and customs that enables it to be said that the relevant society itself has continued.
470 As the State also submitted, because the question is the continued acknowledgement and observance of pre-sovereignty laws and customs:
Demonstrating (some or even much) knowledge of the content of the traditional laws and customs that were once acknowledged is not sufficient if the laws and customs themselves are no longer acknowledged.
471 Nothing in the NTA affects the onus or standard of proof. Accordingly, and as the State put it:
As to the existence, scope, content and continuation of native title, the applicants carry both an evidential onus and an ultimate onus, or burden, of proof [Western Australia v Ward (2000) 99 FCR 316 at [117] per Beaumont and von Doussa JJ; Daniel v Western Australia [2003] FCA 666 at [146]. The standard of proof is the civil standard - on the balance of probabilities.
472 It should be apparent that the provisions of the NTA involve a construct. That is, the provisions impose a set of requirements which bear no necessary relationship to contemporary Aboriginal Australia or, for that matter, what might ordinarily be considered to be a society and its continuance. Whether native title rights and interests can be established does not necessarily say anything about the existence of any contemporary Aboriginal society (in the sense of a body of persons united in and by its acknowledgment and observance of a body of laws and customs), the content or strength of any norms and values of that society, or the merits or otherwise of those norms and values.
473 In Sampi v Western Australia (2010) 266 ALR 537; [2010] FCAFC 26 (Sampi FC) at [48] it was said of the evidence of Aboriginal witnesses:
Their testimony about their traditional laws and customs and their rights and responsibilities with respect to land and waters, deriving from them, is of the highest importance. All else is second order evidence.
474 This does not mean anthropological evidence is unimportant. Contrary to the submissions put for the Bidjara, anthropologists are not simply restating what they might have been told by Aboriginal people, who may or may not be telling the truth. Anthropologists are trained in the methods of their discipline. This includes a close understanding of, for example, the importance of context in determining the meaning of and weight which might rationally be given to observed or reported behaviours and statements. The fruits of this training were apparent in the assessment the anthropologists, particularly Professor Sutton, made of the evidence of and about Uncle Rusty Fraser and others. Unsurprisingly, Professor Sutton gave the greatest weight to Uncle Rusty’s own oral evidence. As I have explained above, this was appropriate for numerous reasons including that, in his oral evidence: (i) Uncle Rusty had the right to speak freely when he was giving oral evidence and did so at various locations he knew well, (ii) Uncle Rusty understood this was his opportunity to have the whole of his evidence recorded and preserved for the future; (iii) Uncle Rusty understood that he was giving evidence in a serious context for a serious purpose, (iv) Uncle Rusty appears to have spoken freely and without inhibition, correcting both himself and others where appropriate and expanding on his evidence where necessary, and (v) the oral evidence is in Uncle Rusty’s own words.
475 By contrast, evidence of, for example, Uncle Rusty not having protested about the boundaries of the current Bidjara claim is circumstantial. It depends on drawing an inference that because Uncle Rusty did not protest he must have thought the boundaries of the claim were correct. However, the drawing of that inference depends on multiple elements of speculation including that: (i) the lack of evidence of any protest by Uncle Rusty means that he knew and understood what the boundaries drawn on the maps represented in circumstances where he did not read or write, (ii) if Uncle Rusty had thought the boundaries to be wrong he would have felt free to protest despite the fact that the claim was drawn up in a process which included Uncle Rusty and other respected elders, and (iii) the fact that none of the Bidjara witnesses heard Uncle Rusty say anything amounting to a protest about the claim boundaries means that he believed they were accurate.
476 A similar analysis can be carried out in respect of other examples of second-hand evidence. In respect of the evidence of Keelen Mailman (which I accept to be honest evidence) that Uncle Rusty was very upset at one point that in a claim Bidjara country had been cut down or reduced does not mean that Uncle Rusty was concerned that Carnarvon Gorge and the Arcadia Valley had been excluded. In the history of Bidjara claims different boundaries have been proposed and, in some cases, Bidjara country that Uncle Rusty expressly referred to in his evidence (around Blackall and Longreach) had been excluded. Hence, although I have no doubt that over the history of Bidjara claims Uncle Rusty would have been very disturbed by any claim that did not include parts of the areas he said were Bidjara country in his oral evidence, it is speculation to suggest that what Uncle Rusty had in his mind at the time he was very upset was a claim that excluded Carnarvon Gorge and the Arcadia Valley.
477 Similarly, the evidence of Patricia Fraser about her father Dusty Fraser not wanting to work anywhere but on Bidjara country is second-hand, in the sense that is based on her memory of a traumatic event in her childhood. In common with Keelen Mailman, I accept that Patricia Fraser was giving honest evidence of her recollection of what occurred. That does not alter the fact that the evidence was from an adult remembering an event from decades before in her childhood. Patricia Fraser was not only remembering the event but also remembering from her perspective as a child what her father had said. Hearing the evidence today, allowance has to be made for the way human memory works, the passage of time, and her age when the events occurred. Moreover, it is simply impossible to know exactly what Dusty Fraser said or the full context of the event. The contrast with the oral evidence during the hearing before Ryan J of Uncle Rusty should be obvious.
478 For these reasons the anthropological evidence was important. As Mansfield J put it in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539; [2004] FCA 472 at [89]:
Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.
479 While proof of the existence, scope, content and continuation of native title might give rise to evidentiary difficulties, it has been said in Gumana v Northern Territory (2005) 141 FCR 457 ; [2005] FCA 50 at [201] that:
…where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.
480 The Full Court approved of this approach to the drawing of inferences in Sampi FC at [63] – [65].
13. BRP – CULTURAL AND CUSTOMARY CONCERNS
481 Section 82(2) of the NTA provides that:
In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.
482 The BRP filed a statement of cultural and customary concerns identifying matters including: (i) the unease of witnesses in a court environment, (ii) the desirability of evidence being given on country, (iii) the need for simple language in questioning witnesses, (iv) the difficulty in eliciting responses where questions started with “if”, and (v) variance in level of knowledge and authority to share knowledge amongst members of the claimant group.
483 I consider these cultural and customary concerns apply equally to the BRP, the Bidjara and the Karingbal claimants and thus should be taken into account. To the extent that the submissions for the BRP indicated that the conduct of the other parties made for “a more than usually discomforting courtroom experience for BRP witnesses” two responses might be made. First, I do not consider that the experience for the BRP witnesses was any more discomforting than that experienced by many of the Bidjara and Karingbal witnesses. Second, unlike the Bidjara and Karingbal, the BRP had the benefit of legal representation. This does not mean that their cultural and customary concerns carry any less weight. But it does mean that the attempt in the BRP submissions to elevate the BRP to some special or particular level of supposed disadvantage, over and above that of the Bidjara and Karingbal, is unconvincing. Further, something must be said about the BRP submission that:
With the benefit of hindsight it may be that perhaps more could have been done to put witnesses at their ease. It would certainly have been preferable if elderly witnesses had been able to give evidence at bush locations on country, rather than within the confines of the courtroom.
484 The submission is gratuitous. Those responsible for the BRP submissions (about which I will say more next) know that it was intended that much of the evidence of Aboriginal people was to be given on country and the only reason this did not occur was the sudden illness of one of the unrepresented parties. It would have been grossly unfair, to the probable point of appellable error, to permit evidence to be given on country in the absence of the authorised representative of one of the parties. For this reason, plans had to be changed, the on country hearing became a view only, and all parties were required to give their evidence in court. In these circumstances hindsight about the desirability of giving evidence on country is unhelpful.
485 While I wish it were otherwise, in the interests of the future conduct of these matters, the written submissions of the BRP cannot pass without comment. As noted, the BRP were legally represented, as was the State. The Bidjara and Karingbal were unrepresented. The State filed and served written submissions of 105 pages with some annexures consisting of tables and some text. While lengthy, these submissions were proportionate to the length of the hearing and the issues in dispute. The BRP filed and served by email on the other parties, including the unrepresented parties, a submission of 245 pages with annexures including a detailed evidence summary of another 237 pages. When, unsurprisingly, the unrepresented parties did not have a copy of the BRP’s submissions at the hearing scheduled for the making of submissions, they were provided at the bar table with the full set of over 500 pages held together by what appeared to be an elastic band. No prior notice of the length of the written submissions and the issues to which they might give rise, particularly for the unrepresented parties, was given by the legal representatives of the BRP. No consideration appeared to have been given as to how the other parties, particularly the unrepresented parties, were supposed to download or print, let alone deal with the BRP’s written submissions. I considered rejecting the BRP’s written submissions given their potential to cause unfair prejudice to the unrepresented parties. Ultimately, I directed the BRP to identify each paragraph relevant to the unrepresented parties and adjourned the hearing of their response to the BRP’s submissions until another day.
486 None of the above is said by way of criticism of the BRP. The point is that the legal representatives of all parties in civil litigation are expected to assist the court to achieve the overarching purpose specified in s 37M of the Federal Court of Australia Act 1976 (Cth) (the Court Act) “to facilitate the just resolution of disputes”, according to law and as quickly, inexpensively and efficiently as possible. By s 37N(2) of the Court Act the lawyers for a party must take account of the duty imposed on the party to conduct the proceeding in a way that is consistent with the overarching purpose and assist the party to comply with the duty. This is a duty owed by legal representatives to the Court over and above their obligations to their client. In cases involving unrepresented parties, additional considerations arise. In the New South Wales Bar Association publication “Guidelines for Barristers on Dealing with Self-Represented Litigants” at para 31 the guidelines state that:
It is particularly important in such cases to avoid any suggestion, let alone reality, of a ‘trial by ambush’.
487 Attempting to serve an unrepresented party with a submission of more than 500 pages by email and expecting the party to be able to print a copy for the hearing is unreasonable. When asked, providing the unrepresented parties with a copy of those submissions at the bar table held together by an elastic band at the start of closing submissions, is unreasonable. Assuming that an unrepresented party will be able to deal with such submissions provided to them in this way and in an undifferentiated mass is unreasonable (and, in this regard, it should not be imagined that headings and sub-headings make the issue disappear). The length of the submissions, being manifestly disproportionate to the length of the hearing and the issues in dispute, is unreasonable. The importance of the case to the BRP, which I accept, is not a valid response to these concerns. The administration of justice is not served by excessively long written submissions in any case and is certainly not served by conduct which had the regrettable appearance and, indeed, the reality of “ambushing” the unrepresented parties. The conduct resulted in the need for a lengthy adjournment to enable the unrepresented parties to have the time and obtain the assistance they needed to understand what was being put against them and, thereby, to redress the “ambush” which the conduct created.
488 As I have said, not only is it obvious that none of these matters had anything to do with the BRP; it is also obvious that none of the conduct was deliberate. The legal representatives of the BRP did not intend their written submissions to do other than fully explain the BRP’s case. But this is where the overriding obligation to the administration of justice in accordance with the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible truly bites. The BRP’s case had to be fully explained in a manner and by a method consistent with the overarching purpose. The State, by filing and serving a submission of a length proportionate to the hearing and the issues, achieved the overarching purpose. The manageable length of its submissions meant that during oral submissions the State could clearly and concisely articulate its case and the findings it said should be made. The same cannot be said of the BRP for the reasons given, with the additional consequence of further delay in the conclusion of the hearing to redress the unfairness to which the unrepresented parties otherwise would have been subject.
489 It is convenient to deal with some other matters so that they do not distract from the discussion which follows.
490 The first potential distraction relates to language. The Karingbal language no longer exists except, perhaps, a few words. The Bidjara language continues to exist both in a form transmitted orally by parent to child (for example, Keelen Mailman learnt her language from her mother and is a relatively fluent speaker of Bidjara) and in a form which Breen documented in his work (Bidyara and Gungabula: Grammar and Vocabulary). Many of the Bidjara have used Breen’s work to acquire some Bidjara language, mostly words and simple phrases.
491 The potential distraction is the notion advanced by Mr Robinson for the Bidjara that the fact that a person might have spoken Bidjara means that the person was or must have been Bidjara. Apart from Mr Robinson’s assertions to this effect, all of the evidence is to the contrary. First, there is ample evidence that within living memory many Aboriginal people from these areas spoke multiple languages. Second, there is evidence that it is a relatively common pattern in Aboriginal Australia for many languages and dialects to have died out under the pressures of European colonisation, with only one or more languages surviving and becoming commonly used by different Aboriginal tribes. Third, there is evidence of this pattern occurring in this region with Bidjara being the surviving language. Fourth, there is evidence of very rapid change in language in this region with Professor Sutton’s analysis showing that Tim Albury’s language (Tim being the older brother of Kevin Albury by some 20 or more years) was different from that of Kevin Albury, the latter’s language being far more Bidjara than that of Tim. Fifth, there is evidence that none of the anthropologists would suggest that the mere fact that a person spoke a language meant that the person belonged to the tribe to which the language belonged unless the person themselves identified as part of that tribe. Sixth, the fact that Bidjara has survived whereas Karingbal has not, for the vast majority of the Bidjara who gave evidence, owes more to the work of Breen than the continuation of an oral tradition of the transmission of language. Keelen Mailman was an exception amongst the people who gave evidence and I infer that she would be representative of a number of Bidjara in the wider Bidjara community who have acquired their language through an oral tradition. However, it was clear that most of the Bidjara witnesses did not have the benefit of this oral tradition and instead were dependent on Breen’s work either first-hand or second-hand.
492 The result of this is that I do not accept any suggestion that the fact that one or other person was heard to speak Bidjara indicates that they were Bidjara when the balance of the evidence discloses that such a person did not identify themselves as such. This is plainly so in the case of the Alburys who spoke Bidjara or Bidjara dialects but did not identify as Bidjara themselves. To the extent that reliance was placed by Mr Robinson on Kevin Albury having allegedly admitted he was Bidjara, the same type of analysis about the weight which evidence can properly be given is required. The evidence is hearsay. It is about an event said to have taken place a number of years ago. The context is unclear. Kevin Albury did speak Bidjara. However, no contemporaneous record suggests that Kevin Albury ever considered himself to be Bidjara. To the contrary, by his own words and actions, Kevin Albury considered himself to be Karingbal. Moreover, all of the anthropologists rejected any notion that identity could be imposed by one tribe or person upon another. Membership of a group is based on descent and acceptance by the group of a descent-based entitlement to membership. A group, or person, cannot assert that another person is a member of that group unless the person identifies as such. Hence, Mr Robinson’s repeated assertions that many people who, on the evidence, identified as Karingbal were really Bidjara remained at the level of pure assertion, not entitled to any weight.
493 This brings me to the next potential distraction, which is Mr Robinson’s suggestion that the Alburys came from Albury-Wodonga and had nothing to do with the Arcadia Valley. This suggestion is based on a piece of hearsay of no evidentiary value. It is contrary to all of the other evidence in the proceedings. There is documentary and other evidence of the long history of the Alburys in the Arcadia Valley. Dr Kidd’s work shows Albert Albury Snr born at Springsure in about 1831, with his children born at Rolleston other than his son Albert Albury Jnr who is recorded as born at Consuelo. Albert Albury Jnr married at Rolleston. His children included some also born at Rolleston and he was referred to in an official record as “Albert Albury of Rolleston”. He died at Warrinilla Station. His children, and the children of other descendants of Albert Albury Snr, did not obtain exemptions from legislation permitting them to remain in the area and many were relocated including to Woorabinda, Rockhampton and other places. Fred and Charles Stapleton are the sons of Olive Albury, a daughter of Albert Albury Snr.
494 Although I have mentioned where people were born in the previous paragraph I have done so only for the purpose of showing the connection between that person, their family and a place. Another potential distraction introduced by Mr Robinson is the notion, at least insofar as it might apply to Mick Freeman, that where he was born is somehow determinative of his status as Karingbal or not. Mr Robinson made much of the fact that Mick Freeman was born outside the overlap area on Bauhinia Downs and thus, to the extent I understood it, he either was not Karingbal or it could not be said that the Freemans had any connection to the Arcadia Valley. Both suggestions are inconsistent with the evidence. All of the witnesses who gave evidence, lay and anthropologists, agreed that a person’s place of birth did not determine the tribe to which they belonged. Membership is based on descent not birth place. Birth place with other information might be relevant to showing a connection with a place but birth place alone was recognised by all (other than Mr Robinson in submissions about Mick Freeman) as a matter more of chance than anything else.
495 As with the Alburys, there is ample evidence of a long-standing connection between the Freemans and the Arcadia Valley. Mick Freeman was living on Consuelo Station with his wife and children when he died in 1909. Leo Freeman worked as a horseman at Rewan and had a number of children born at either Rewan or Springsure. Leo and his family were relocated to Woorabinda in 1930. Effie Freeman, Leo’s sister, married at Rolleston and had children born at Rewan, Consuelo Station and also at Woorabinda. Other Freemans were also relocated to Woorabinda and Palm Island during the 1930s and 1940s.
496 I have mentioned where people worked during the preceding paragraph but, as with where people were born, I have done so for the limited purpose of showing the connection between that person, their family and a place. Apart from the evidence given by Patricia Fraser about her father, which I have said above I accept to be truthful evidence but I do not accept establishes that her father believed the Arcadia Valley all to be Bidjara country, the evidence is inconsistent with the notion that an Aboriginal person would work only on their own country. The weight of the evidence is overwhelmingly to the contrary. An Aboriginal person might well have preferred to work on their own country but the evidence is that circumstances dictated that many took work where they could find it, hoping to obtain exemptions from the legislation which enabled them to be forcibly relocated to missions at Woorabinda, Cherbourg, Rockhampton, Palm Island and the like.
497 Another potential distraction relied upon by Mr Robinson is the names, Karingbal, Garingbal, and variants thereof, and the Brown River people. Leaving aside the Brown River people for the moment, it is apparent that Karingbal and Garingbal are mere variations of a known Aboriginal tribe, whether they be called Karingbal or Garingbal or any other variation. There is evidence that “K” and “G” are not distinguished in the languages of this region so the variations are immaterial. They are no different from the many variations of “Bidjara” that appear in the documentary records and all of which I take to refer to the same people, the Bidjara. Variations on Bidjera include Pitjara, Bijera and Bidyera to name but a few. As with the Karingbal these variations are immaterial. The Brown River people is a name that was chosen for the new Karingbal claim of the Stapletons because the name “Karingbal” had already been used on the Karingbal No 2 claim. The fact that the name is not Aboriginal is immaterial. It is clear that the claim is by a group who identify as Karingbal or Garingbal (the name difference is irrelevant). It is no different from the Bidjara being identified in historical records as the Warrego River people.
498 Yet a further potential distraction introduced by Mr Robinson was his reliance on contemporary institutions which he either established or was involved in such as the Bidjara legal service, the Bidjara housing company and the like. While these institutions show that a distinctive and vibrant Bidjara society exists and has existed since the 1970s when many of these institutions were founded, the NTA is concerned with different issues, focusing on the continuation of a group united by adherence to traditional laws and customs. Contemporary institutions relating to non-Aboriginal law and housing are of limited, if any, relevance to the issues which are at the heart of the NTA. It is for this reason I have described the NTA as establishing a construct which may not have any bearing on the reality of contemporary Aboriginal communities.
499 Another potential distraction was the focus of the unrepresented parties on Queensland South Native Title Service and their supposed breaches of undertakings to the Court not to act against the Bidjara, and other allegedly unlawful acts. These matters are all a distraction in the present case because the present case concerns only the question of native title claims to the overlap area. It is neither possible nor appropriate in the confines of this case, to which Queensland South Native Title Service is not a party, to consider any of the many allegations against that body raised in Mr Robinson’s submissions. Only one further comment is appropriate. Contrary to Mr Robinson’s submissions, Queensland South Native Title Service did not act against the Bidjara after the giving of any undertaking to the Court. The BRP were represented by solicitors other than from Queensland South Native Title Service. Whatever involvement Queensland South Native Title Service had in the funding of the BRP’s claim, it cannot be properly alleged that the Queensland South Native Title Service acted in breach of any undertaking to the Court.
500 I also do not accept Mr Robinson’s submission that the presence of Charles Stapleton on both the claims of the Karingbal and the BRP breached the NTA. The prohibition in s 190C(3) concerns the registration, not the making, of native title claims.
501 Further, I do not accept that the amendment of the claim of the BRP gives rise to any cause for concern about the validity of the BRP’s claim. The amendment was permitted based on the evidence then available about the erroneous omission of certain areas. It is not appropriate to revisit that question in dealing with the separate questions.
502 It is also appropriate to record that it might be easy, but would be wrong, to use aspects of Mr Robinson’s approach to the proceedings as indicative of discontinuities in the traditional laws and customs of the Bidjara. For example, the anthropological evidence discloses that important aspects of traditional Aboriginal society which might be inferred to have existed in traditional Bidjara society would have included knowledge of your own country and the country of your neighbours, respect for your neighbours, and a shared perception that any attempt to annex your neighbour’s country as your own would have been an anathema, contrary to all traditions about the nature of the connection of Aboriginal people to their land. Mr Robinson’s presentation of the case for the Bidjara repeatedly exhibited deep disregard for these traditions, to the extent of denying the existence of the Karingbal altogether as neighbours of the Bidjara (despite, for example, the evidence to this effect from his own people, such as Rita Huggins in “Auntie Rita”, let alone the consistent anthropological records showing the Karingbal as one of the Bidjara’s neighbours to the east), denying that the Karingbal had any culture of their own whatsoever and deriding their lack of language, song and dance, and dreamtime stories, and suggesting that just as the Bidjara had absorbed the Gungabula tribe so too they had absorbed the Karingbal. The critical difference which this latter submission overlooked was that the evidence indicated that the Gungabula had been voluntarily absorbed into the Bidjara. There is no suggestion that the Karingbal volunteered to become part of the Bidjara and the evidence is not only to the contrary, but also discloses that any suggestion of such forced annexation would be inconsistent with important norms of traditional Aboriginal, including Bidjara, society.
503 The reason that it would be wrong to use Mr Robinson’s conduct of the proceedings as undermining the Bidjara’s claims of continuity of traditional laws and customs is that the only reason Mr Robinson was left to present the case at all was the Bidjara’s claimed lack of funding to obtain legal representation for the hearing following a dispute with the lawyers who were meant to represent them at the hearing. One of the many effects of unrepresented parties having to conduct litigation, particularly complex litigation like the present over a number of weeks of hearing, is that the personality of the representative may have a disproportionate effect on the hearing and the perceptions of those involved it. The effect is disproportionate because the person is not only appearing as a witness but also conducting the litigation day-to-day. It would be unfair to use Mr Robinson’s conduct of the hearing as evidence of discontinuity of Bidjara traditional laws and customs because he is but one Bidjara person who had a disproportionate impact on the proceedings only because the Bidjara did not have legal representation. It follows that, to the extent that the other parties suggested discontinuity based on Mr Robinson’s conduct of the hearing (in contrast to his evidence as a witness), I do not accept that such an approach is appropriate.
504 I do not address these potential distractions again in the context of the discussion that follows as it is unnecessary to do so.
16. TRADITIONAL LAWS AND CUSTOMS AT SOVEREIGNTY
505 I accept the State’s submissions as follows:
15. The first key inquiry in this proceeding is as to what might reasonably be inferred to have been the normative system of law and custom, which applied in relation to the overlap area, at sovereignty.
16. This is because the (native title) rights and interests that survived the Crown’s acquisition of sovereignty and radical title, and which are defined in s 223(1) of the NTA, are rights and interests in relation to land or waters which find their origin in the body of laws and customs, having a normative content, that existed before sovereignty.
17. Sovereignty was acquired in 1788. However, it may be accepted that sustained European contact in relation to the overlap area did not occur until around 1860.
18. The State accepts that it is reasonable to infer that, as at 1788, indigenous people occupied the overlap area, and that the people who did so were united by their acknowledgment and observance of a body of laws and customs.
19. Whilst direct evidence of the laws and customs acknowledged and observed at sovereignty is “very thin for the specific overlap area”, the State accepts that it is permissible to draw inferences from “evidence for the wider regional system which, cumulatively, is more fully recorded” because “it would be highly improbable that the people of the Brown River catchment were a social isolate whose local and social organisation was fundamentally different from those of those who surrounded them”.
506 As already indicated, I accept also the evidence of the anthropologists that the societies of the Aboriginal tribes of this region at sovereignty were subject to a normative system of traditional laws and customs that included:
A four section class system;
Exogamous marriage between two marrying classes or moieties;
A combination of diverse totems associated with these marriage classes that were inherited (although I find unclear the evidence whether this occurred through the mother, father or both);
Transmission of rights and interests in language and country inherited through descent (although I find unclear the evidence whether this occurred through the mother, father or both);
Totemic beliefs;
Punishments and reprisals;
Trade with other groups;
Ceremonial meetings with other groups;
Male initiation practices;
Seasonal hunting practices;
Mourning practices including smoking ceremonies and the use of mud daubing and ritual cutting to indicate a period of mourning;
Increase rituals;
Female birthing practices;
Complex rituals associated with death and burial (burial caves, burial cylinders);
Right to be buried on country; and
Creation stories / mythologies.
507 The State submitted that to this list the following should be added which emerged from the reports of the anthropologists and during their concurrent evidence:
(a) that rights in relation to land could (probably) be acquired by adoption or rearing up;
(b) for membership of the landholding group, descent from an apical ancestor must be accompanied by recognition and acceptance by the other members of the group;
(c) the system of land tenure was characterised by the following:
(i) communal title;
(ii) inalienability;
(iii) the presence of a number of smaller, local groups or land-holding units within the overall area;
(iv) differential distribution of rights as between those local groups;
(v) a permission system (albeit subtle, as explained by Professor Sutton);
(d) a system of social organisation involving:
(i) descent groups; and
(ii) kindreds (ie a mixture of people to whom you are related by blood and people to whom you are related by marriage) and kinship rules (behavioural norms between kin; terms used to refer to kin);
(iii) matrilineal moieties in four sections (with Bidjara having an “additional complexity”);
(iv) marriage rules which were prescriptive governing the one section that one should ideally marry into, rather than prohibitive.
(e) respect for elders; and
(f) taboo on the names of the dead.
508 I accept this submission with the qualification that follows. Because of its subsequent importance in the State’s submissions, I should say something more about the system of land tenure involving “the presence of a number of smaller, local groups or land-holding units within the overall area” and “differential distribution of rights as between those local groups”.
509 First, Professor Langton said that the presence of place names ending in bara/bura and burra/buri indicated that the Aboriginal population was once organised into local groups with a name consisting of two parts, the first taken from unique features of their local area and the suffix bara/bura and burra/buri, as “[s]imilarly formed named local groups have been recorded over a wide region of southern Queensland”.
510 Second, Dr Hutchings referred to the lack of evidence of a single name for the southern section of the Arcadia Valley and the existence of some evidence that at least two local groups occupied the northern and southern regions of the overlap area.
511 Third, in oral evidence Professor Langton said that:
…yes, there were local groups, and there were language dialects, and
there were other ways of grouping people not – not to do with patrifiliation.
512 Dr Hutchings said she did not consider there to be enough evidence to describe the land tenure system at sovereignty other than that it was communal although, based on her experience, she would infer the differential distribution of rights across local groups, the local groups being based on families.
513 Dr Sackett considered that “the groups would have been primarily patrilines holding country. So you would have a number of these…across the areas.”
514 Professor Sutton said:
differentially distributed rights. As I said before, yes, if it’s a substantial area country, it would have consisted of a set of estates. And those estates would have had various formal links with each other. Local groups or land holding units: yes, probably. Subgroups: yes. Other than estates which are land holding groups based on descent, right through most of Australia where I’ve worked, you also get what I call environmental clusters. That is the people who come from the same environment. That is not where they live, but where their spirit country and their soul country is. And so there would have been environmental clusters like that; for example, you know, mountain people, forest people, people from the Bidjara country...
Now, those groupings frequently disregard language. In other words, they’re not subgroups of language groups. They are actually environmental clusters and they frequently include one, two, three, four different languages and tribal areas, if you like, in their memberships. They play a significant role because these are people that live in close proximity and therefore develop trust, regardless of differences of language ownership.
515 Fourth, the area of the claim of the BRP and Karingbal is far smaller than that of the Bidjara. The overlap area constitutes the majority of the native title claim of the BRP and Karingbal but only a small proportion of the claim of the Bidjara. In a region as diverse as that claimed by the Bidjara it is inconceivable that there would not have been a relatively large number of local groups based on familial and environmental factors. Even in the much smaller area claimed by the BRP and Karingbal there is, as Dr Hutchings said, evidence of at least two groups, one for the north and another for the south.
516 As the State also submitted:
The experts did not disagree on any of the above features being a part of the normative system. The experts (and each of the claimant groups) did, however, disagree about the identification and composition of the society which would have observed that system in relation to the overlap area at sovereignty.
517 The State submitted that:
…the anthropological evidence, based upon analysis of the ethnographic and linguistic records, supports findings that, traditionally (that is, at sovereignty):
(a) the overlap area was associated with people who identified as Karingbal (or Garingbal), and who were likely to have included Albert Albury Snr, Maggie Suy See and Mick Freeman;
(b) people who identified as Bidjara were associated with an area of land and waters to the west of the overlap area;
(c) people who identified as Bidjara were also associated with a part of the overlap area, being Carnarvon Gorge and Carnarvon National Park, with this area being co-held under the traditional normative system with the Karingbal (or Garingbal) people (notwithstanding that neither group now acknowledges or observes that fundamental aspect of the system).
518 I accept this submission subject to the one important qualification about Carnarvon Gorge and Carnarvon National Park explained at the start of these reasons for judgment (that Carnarvon Gorge and Carnarvon National Park within the overlap area were Bidjara country at sovereignty albeit subject to the rights and interests of other tribes for burial and ceremonial purposes). It should be apparent that the State’s submission is consistent with the weight of the evidence. It is consistent with the evidence of Uncle Rusty Fraser as to the extent of Bidjara country other than in respect of the co-holding of the Carnarvon Gorge and Carnarvon National Park with Karingbal. It is consistent with a rational understanding of Bob Mailman’s evidence of the extent of Bidjara country. It is generally consistent with the historical anthropological evidence. It is consistent with the contemporary anthropological evidence other than that of Professor Langton which Professor Langton herself acknowledged had shortcomings due to her lack of funding. It is consistent with the historical documentary record which shows the association of Alburys and Freemans with the Arcadia Valley until the forced relocation of many of them in the 1930s and later. It is consistent with the recognition of the Karingbal as her neighbours by Rita Huggins who was born in and had a close personal connection to Carnarvon Gorge. It is consistent with the express recognition of the Bidjara claimants in one of the Bidjara native title applications of the Karingbal as their neighbours.
519 The claim of the Bidjara that their traditional country extends to the east of Carnarvon Gorge is based on evidence that is extremely weak. Insofar as it is said to be based on the actual evidence of Uncle Rusty Fraser and Bob Mailman, the fact is that evidence forms no rational basis for the claim, as explained above. Insofar as it is based on hearsay about Uncle Rusty having said or done or not done things, the evidence is ambiguous and his own direct evidence is far more persuasive. Insofar as it is based on Dusty Fraser having worked in the area and refusing to work off Bidjara country, I have explained above why that evidence has to be weighed for what it is, an adult’s recollection of a traumatic childhood memory, the overall context of which and Dusty Fraser’s exact words now being lost to time. Insofar as it is based on other Bidjara people having lived and worked in the overlap area, it is unsurprising that they would have done so given the proximity of areas that Uncle Rusty did identify as Bidjara country (including Carnarvon Gorge and Carnarvon National Park, as well as Springsure) to the overlap area and the evidence that many Aboriginal people sought and obtained work on the stations in the overlap area hoping to avoid the forced relocations that occurred and accelerated in the 1930s and thereafter. Insofar as it is based on a notion that the Carnarvons are the “heart” of Bidjara country (rather than its eastern extreme) and that this country extends far to the east to the Expedition Ranges, the notion seems to be based on a contemporary idea or perhaps some otherwise unfounded idea about the effect of Uncle Rusty’s evidence. Insofar as it is based on Bidjara signs, the evidence does not enable a rational conclusion that the artwork in the overlap area is all or uniquely Bidjara in origin. And as the State pointed out in respect of the submission by Mr Robinson that these signs are “all over Bidjara Country. They’re like Bidjara signatures. You get them from Charleville to Augathella, to Blacks’ Palace, to Aramac, to Clermont, Springsure, right through them properties. All the properties, Mantuan Downs, Planet Downs, all them signs are there. Bogarella Station, Mount Abel [sic - Tabor] Station, the signs are there. That is Bidjara Country, that’s our signature to Bidjara Country. That’s what Uncle Rusty told me; that’s what Uncle Fred told me; that’s what Uncle Dusty told me”, none of these places are in the overlap area (they are all to the west). Professor Langton’s hypothesis that the Bidjara had once extended further to the east and were now reclaiming this land remains mere speculation and thus cannot be accepted.
520 Insofar as the Bidjara placed weight on the name of Lake Nuga Nuga, the evidence is also extremely weak. As the State put it about Lake Nuga Nuga (referring to the transcript of the preserved evidence as PET):
(a) At the preservation of evidence hearing in 2001, Rusty Fraser made no mention of Lake Nuga Nuga - even when asked specifically by counsel for the Bidjara, after talking about the snake being at Ambathalla Lake, whether "that snake, does he go anywhere else?" (PET p 25 line 42);
(b) In his Statement, Rusty Fraser said that the Mundagatta "belongs to this country, he belongs to Carnarvon and Babbiloora" which are at the western most and eastern most parts of Bidjara country as he had described it;
(c) In cross-examination Rusty Fraser was asked if there are any other significant sites (apart from the places the court travelled to during the preservation of evidence hearing). Rusty Fraser said (PET p 235 line 35): "Only around Carnarvon here, up here at Carnarvon, then you go down to what-d'ye-call-im, down to Mount Tabor and around there. That's the only places where you see the sites, all the Aboriginal sites. A lot of places in Mount Tabor there, a lot of caves there with a lot of what-d'ye-call-im, old camps and everything around there, you know…";
(d) The argument that Lake Nuga Nuga has a Bidjara language name and therefore must be within Bidjara country is unsustainable, particularly in light of the evidence that "this verb (nhaga - 'look', 'see') is one of the most widespread words in Queensland". Ray Robinson's counter-argument - that those other groups are "pinching Bidjara language" is unreasonable and not based in fact (T p 892 line 6). The Bidjara evidence - including that of Ray Robinson - was that the Bidjara name for the lake was Wangan Wangan. This appears to be erroneous. However, on many an occasion during his oral evidence, Ray Robinson would call the lake "Nuga Nuga" as well as, on one occasion, "Nooga Nooga";
(e) Further, in relation to the naming of a significant regional place like Lake Nuga Nuga, the State relies upon Professor Sutton's evidence, to the effect that it would be surprising if such a place (as well as the Gorge) did not have multiple names in the old days - which also militates against any conclusion, as to ownership of country, being reached on the basis of what such significant places might have been called.
521 Insofar as the Bidjara placed weight on the Bidjara dancers in which Uncle Rusty Fraser was involved having only danced on Bidjara country, again, the State’s submissions in answer may be adopted. The State said:
(a) According to Rusty Fraser, you can dance outside Bidjara country – you just need to “ask the other mob” - which explicitly recognises that dancing may occur outside one’s own country.
(b) For example, in his oral evidence, Rusty Fraser said if he wanted to dance in Roma, which is not Bidjara country, “I’ve got to get permission off them, yeah, permission off the Gunggari mob, see” and he has done that (PET p 20 lines 9-24).
(c) Note also Rusty Fraser’s evidence at PET p 200 lines 5-6 – “They dance down in – dance down in Sydney, everywhere, them fellas, all over the place here.”
(d) Both Professor Sutton and Dr Sackett gave evidence about this issue – to the effect that you’re not restricted to performing (dance etc) on your own country.
(e) Accordingly, the State submits that evidence of Rusty Fraser dancing at a place(s) within the overlap area does not support a finding that any such place is within Bidjara country.
522 The State also referred to other evidence being consistent with these conclusions including that of Olivia Robinson who described Bidjara country in terms substantially the same as Uncle Rusty Fraser used, namely, “Charleville, Augathella, Springsure, over Carnarvon ranges, Carnarvon National Park.” In addition to Olivia Robinson the State submitted (and I accept) that there is other evidence consistent with the eastern-most extent of Bidjara country being Carnarvon Gorge and Carnarvon National Park, being:
(a) Richie Fraser: “I know it [Bidjara country] goes from the Carnarvon homestead down to Augathella, back to Mitchell, Springsure, and I didn’t think it got quite so as far as Barky…. then back up through Blackall and back to Tambo, that way”;
(b) Bob Mailman’s evidence that the “Carnarvon Ranges” starts around Chesterton and then over to the Carnarvon Gorge;
(c) Rodney Mailman in his statement at [4] says that his father told him that “Mitchell and surrounds area such as Morven, Mungallala, Charleville, Augathella plus a lot more areas” are Bidjara country and at [25], he refers to the places his father always used to talk about. He refers to Carnarvon Station and Carnarvon Gorge National Park, but no other places within overlap area (or otherwise east of Carnarvon Gorge);
(d) The evidence of Keelen Mailman, referring to having a story about “my old grandfather, Mailman … riding all the way from Augathella and through the Carnarvon ranges on horseback with a broken arm to Springsure to flog the so-called other Aboriginal fellow that come into our country” . This is consistent with the “line” that Rusty Fraser identifies – travelling up from Augathella, through Carnarvon Gorge, and ending up at Springsure.
(e) Brendan Wyman, in his statement, describes Bidjara country by reference to Charleville, Augathella, Tambo, Alpha, Springsure; as well as Babbiloora, Mt Tabor and Carnarvon Stations (at [27]). At [56] he describes Babbilorra and Carnarvon Ranges as “our traditional country”. Also at [65] he states, “We could hunt anywhere and everywhere in our country, Augathella up round Mount Tabor, Carnarvon Ranges, Carnarvon Station I’ve done hunting up there, Mount Tabor down to Keiber Road, back to Augathella”. He further describes Bidjara land at [68]-[69] as “[m]ainly from Barci across to Aramac and then across to Injune”. He acknowledged in his evidence that this part of his statement is in his own words. His description does not capture the overlap area;
(f) Rita and Jackie Huggins who in the book “Auntie Rita” (exhibit A3.16) do not identify the overlap area as part of Bidjara country (other than Carnarvon Gorge, which they say is a shared area with a number of other groups).
523 The overwhelming weight of the evidence is that the Bidjara and the Karingbal were two tribes of this region who enjoyed a boundary at or near Carnarvon Gorge, with the country of the Bidjara extending up to and including Carnarvon Gorge and Carnarvon National Park from the west and the country of the Karingbal extending up to Carnarvon Gorge from Rolleston and the Brown River in the east of the overlap area.
524 This brings me to Carnarvon Gorge and Carnarvon National Park. The State’s submissions also fairly represented the anthropological evidence about these areas.
525 Adopting the State’s submissions about Professor Sutton’s evidence:
(a) Professor Sutton said that he was “satisfied on all the evidence that I’ve seen that Bidjara people can be regarded as traditional owners of the Carnarvon Gorge and the national park associated with it”;
(b) However, Professor Sutton considered that area was “probably was a shared area in terms of traditional rights and interests with the people of that part of the Brown River catchment that we’re talking about”; “it isn’t just shared in terms of occupation physically, its co-held in law. Therefore, it has two languages”;
(c) At T p 1077 line 45 to p 1078 line 7, Professor Sutton said:
“So it would be completely unsurprising if the Carnarvon Gorge – being a spectacular place, permanent water, all the requirements for massive ceremonies, and I’m talking here maybe a thousand people at a time. What’s the other major requirement for a large ceremony that goes for two or three weeks? You’ve got to be able to fund it with food, and the macrozamia here were a hugely abundant primary source of food. It’s very, very rich in them and the archaeologist, John Beaton had made a whole study of the Carnarvon Ranges and people’s use of macrozamia, so it’s a sitter for it regionally. In other words people from all over the area could well have come there and I do think that’s what Auntie Rita’s comment was primarily about.”
526 Dr Sackett basically agreed with Professor Sutton. Professor Langton said she did not consider there to be enough evidence to reach this conclusion about a shared area, observing that “there must have been shared rights about burials but not shared rights to own country”. Dr Hutchings, having heard the evidence of the Bidjara, said she now considered that “Bidjara have…ceremonial rights and interests in the Carnarvon Gorge”.
527 As discussed, I consider that the weight of the evidence lies in favour of the Bidjara on this issue. Uncle Rusty plainly believed Carnarvon Gorge and Carnarvon National Park to be Bidjara country. So too, in my view, did Bob Mailman. I consider Rita Huggins has to be understood as identifying Carnarvon Gorge and Carnarvon National Park as Bidjara country. Many Bidjara witnesses gave evidence to the same effect. Some had heard of the Karingbal. Others had not. There is evidence that Carnarvon Gorge was an area shared for ceremonial and burial purposes but, apart from Professor Sutton’s opinion in oral evidence and Dr Sackett’s agreement, no evidence of that land being co-held. The explanation of the basis for co-holding land in Aboriginal law was not detailed, presumably because the issue arose only in oral evidence. In common with Professor Langton I am not persuaded there is sufficient evidence to conclude that Carnarvon Gorge (and Carnarvon National Park if the co-holding was intended to extend beyond the Gorge, which is also unclear on the evidence) was co-held between the Bidjara and Karingbal in Aboriginal law. In contrast to the evidence which supported the traditional association of the Bidjara with Carnarvon Gorge (and Carnarvon National Park), there was little (if any) equivalent evidence from the Karingbal. That said, I accept Professor Sutton’s observation that Carnarvon Gorge is an obvious location for the ceremonial gatherings of tribes that the evidence indicates regularly took place before sovereignty. I accept also Professor Langton’s observation that it would have been shared for rituals associated with the dead and burials.
528 For these reasons I conclude that under the normative systems of law and custom which applied in relation to the overlap area at sovereignty, Carnarvon Gorge and Carnarvon National Park were Bidjara country, with Carnarvon Gorge being recognised by the Bidjara as an area in which other tribes, including but probably not limited to the Karingbal, had rights to enter to carry out burials and associated rituals and to look after their burial sites, and rights to enter for the purpose of inter-tribal ceremonies. Otherwise I conclude that the overlap area excluding Carnarvon Gorge and Carnarvon National Park, at sovereignty, was Karingbal country.
529 The next issue is the descendants of Jemima of Albinia. Consistent with an oral submission put by the State it must be said that the treatment of the descendants of Jemima of Albinia has been unfortunate to say the least. There is no doubt that Kevin Albury accepted them to be Karingbal. There is equally no doubt that they are no longer seen as Karingbal by the Stapletons largely because Charles Stapleton appears to have made a unilateral decision that they are not Karingbal when the anthropological evidence changed to suit this position. There is no doubt, moreover, that irrespective of the anthropological evidence, the position of the Stapletons, or the decision of this Court the descendants of Jemima of Albinia believe they are “Gurrinjabool” people who have long-standing connections to the overlap area. The latter facts disclose the potential for disconnect between the NTA and the reality of contemporary Aboriginal life.
530 Despite that disconnect, it is still necessary to determine the issues which arise under the NTA. One issue which does not arise under the NTA is the fact (and, on the evidence, it is a fact) that Jemima of Albinia and her immediate descendants lived and worked around and thus undoubtedly felt connected to the overlap area. The evidence is that Jemima of Albinia was a prominent Aboriginal woman in and around Rolleston. Her descendants knew the Alburys and other families who lived and worked in the overall area well. In this sense, the descendants of Jemima of Albinia have an understandable and justifiable sense of significant connection to the overlap area outside the context set by the NTA.
531 The NTA, however, is concerned with the traditional laws and customs of Aboriginal people at sovereignty. Under those traditional laws and customs, as noted, membership of a group was determined by descent and probably adoption and group recognition. On this basis the weight of the evidence is that Jemima of Albinia came from Rolleston and identified not as Karingbal but (possibly, but by no means clearly) as Wadja. She certainly did not identify as Bidjara as Mr Robinson claimed. Her daughter, Amy Miller, thought Bidjara to be “hard talk” and the fact that she used a language which has things in common with Bidjara, on the linguistic evidence, is immaterial. In Breen’s interview with Amy Miller there is no suggestion she identified as Karingbal or Garingbal. Even when the Karingbal or Garingbal language was raised Amy Miller placed it around Baralaba somewhere and did not suggest it was her language. More importantly, leaving aside language (which I accept cannot be determinative), she never suggested she was Karingbal or Garingbal. While she might be seen as having accepted that she was Wadja, the tape of her interview is sufficiently unclear that no such finding should be made. What is clear is that she did not identify, at least not in any traditional Aboriginal tribal sense, as either Karingbal or Garingbal or as Bidjara but that she and her mother had close personal ties to Rolleston. As nothing else is known of Amy Miller’s mother other than that she too was at Rolleston and lived and worked in the overlap area and nothing at all is known of her father, it is sufficient to conclude that the descendants of Jemima of Albinia are not members of the Bidjara (and do not claim to be and thus cannot be irrespective of Mr Robinson’s submission) and are not members of the Karingbal or Garingbal (because the evidence which is available about Amy Miller is inconsistent with such membership).
532 Insofar as the descendants of Jemima of Albinia, being the Karingbal No 2 claimants, relied on the evidence that one or more of them had heard Amy Miller identify herself or her grandson as “Gurrinjabool” no more need be said than that this evidence is second-hand in the sense that it is based on recollections of what Amy Miller said from, presumably, many years ago. Like the other hearsay evidence in this case the evidence does not have context and we cannot hear exactly what Amy Miller said. When these facts are combined with the uncertainties of human memory, this evidence cannot be given the same weight as the tape of Amy Miller herself speaking. Even though she was elderly at the time the issue of the “Garingbal” came up. Despite the submissions to the contrary, it is apparent that Amy Miller had heard of but did not identify with the “Garingbal” at all and, in my view, cannot be heard saying “Gurrinjabool” on the tape (as opposed to simply “Garingbal”).
533 On this basis the claim of the Karingbal No 2 claimants cannot be accepted under the NTA because they are not members of the Karingbal who, at sovereignty, were associated with the overlap area by traditional laws and customs and there is no evidence of what other traditional (as opposed to post-sovereignty and familial) connection they might have to the overlap area. For these reasons I do not propose to say more about the Karingbal No 2 claim, which must be dismissed.
534 The fact that the question is not merely whether a society has continued, but whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs of that continued society (as I have noted recognising that change, adaptation and interruption may not be fatal in that “[s]o long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional” (Bodney at [74])) is significant in the present case. One reason for this is that there cannot be any real doubt on the evidence that, outside the construct created by the NTA, a Bidjara society has continued. Despite the depredations of disease, violence, forced relocation, separation of families and suppression of culture wrought by colonisation the evidence indicates that a body of people continued to regard their primary identity as Bidjara since sovereignty and continue to do so today. If continuation of a society in this ordinary sense and pre-sovereignty connection to land and no more were the test for the existence of native title then the Bidjara would satisfy that test in respect of Carnarvon Gorge and Carnarvon National Park. But that is not the test for the existence of native title under the NTA. The Bidjara (and the BRP) must prove the continuation of the traditional laws and customs of their pre-sovereignty societies as the foundation for their connection with the overlap area.
535 The State submitted that the fact that there was evidence that the Bidjara and the BRP might be inferred to have continued to consider rights and interests in connection with land to be communal and inalienable (or what Professor Sutton described as the “very, very deeply distinct Aboriginal approaches to the whole idea of property belonging to territory”) should be seen as a fundamental incident of any form of native title and not as evidence of “the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned” within the context of that communal title (citing Yorta Yorta at [87]).
536 I do not accept this submission, at least not at the level of generality at which it is expressed. Yorta Yorta at [87] does not suggest a distinction between what might be described as basic or fundamental and other norms. Nor does it suggest that norms about rights and interests in land (such as the rights being communal and inalienable) are not themselves part of “the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned”. The foundational nature of these norms should not be permitted to distract from the fact that they are both a fundamental incident of any form of native title and an important part of the traditional laws and customs of Aboriginal people, including the BRP and the Bidjara.
537 I turn now to the question of the continued acknowledgement and observance of pre-sovereignty laws and customs of, first, the BRP and, second, the Bidjara. I use the submissions of the State as the framework around which the initial part of this discussion is structured, referring to the submissions of the BRP and Bidjara as appropriate.
538 The State’s basic submission about the BRP is as follows:
Professor Sutton concluded, in Sutton 2012 at [165] (on the basis of his discussion at [130]-[164]) that “the Karingbal applicants no longer practise most of the classical cultural traditions discussed by Dr Hutchings”. At the experts’ conference held on 11 May 2013, Dr Hutchings sought to identify certain “traditional practices” and “ritual and spiritual beliefs and practices” that she considered remain. Professor Sutton and Dr Sackett expressed the view that those beliefs and practices remain the beliefs and practices of some Karingbal People; Professor Langton was of the view that this could be said of only “very few members of the” group.
…
(a) In so far as the “beliefs and practices” identified by Dr Hutchings at p 7 of exhibit R18 are concerned, the evidence does not support a finding that any such beliefs and practices as might be observed by the Karingbal claimants find their origin in the body of laws and customs which it may be inferred united the ancestors of the Karingbal people, at sovereignty;
(b) The fact that some / very few members of the group might hold certain beliefs or observe certain practices, does not evidence the requisite continuity of the pre-sovereignty normative system;
(c) There is no other basis upon which to conclude that there has been continued acknowledgment and observance of the pre-sovereignty normative system of law and custom (even taking account of acceptable adaptations and changes) by each generation of the descendants of the identified Karingbal people; and
(d) Examination of the Karingbal claimants’ evidence supports the conclusion reached by Professor Sutton at Sutton 2012 [165].
17.2.2 The State’s threshold issue
539 In support of this submission the State first referred to what it described as the threshold issue of agreement as to the composition of the claim group. This submission focused on the inclusion and then exclusion from the Karingbal of the descendants of Jemima of Albinia and the ultimate inclusion of the Freemans as Karingbal in circumstances where, at all times before 2011, the Freemans had identified with the Wadja rather than the Karingbal, although they were aware of their familial connection to the Karingbal. This analysis culminated in the submission that:
The evidence supports the conclusion that the composition of the Karingbal/Garingbal society was an unresolved question when the Karingbal #2 application was filed in 2006, and that it remained an issue even after the filing of the Brown River Peoples’ application in 2011. As Dr Hutchings conceded, her research in relation to the Garingbal Kara Kara claim group was an investigative exercise rather than research of an extant claim group. In relation to the Karingbal #2 and Brown River Peoples’ claims, it is also apparent that the claim groups have moulded and changed as her research has progressed. The question is why the true claim group did not present itself with some form of unity and cohesiveness from the outset? The answer supported by the evidence is that the proceedings were not initiated by a society united in its perception of itself as a Karingbal/Garingbal landed identity. That is entirely consistent with Dr Hutchings’ evidence – and the Freemans’ own evidence - that the Freemans’ “focus was Wadja”. As the evidence reveals, after 2006, they did not actively pursue a Karingbal identity until approached to become part of the Brown River Peoples’ claim in 2011.
540 The concluding statement contains a number of concepts that require further analysis.
541 First, I do not understand the submission to be that in order for there to be native title rights and interests there must be a body of persons who are wholly united in their acknowledgment and observance of traditional laws and customs. To the extent that the BRP submitted that this is not what was meant in Yorta Yorta at [49] I agree, but I do not consider that to be the essential thrust of the State’s submission.
542 Second, I do not consider the mere fact that Kevin Albury included the descendants of Jemima of Albinia as Karingbal and others went along with it at the time in 2006 and for five years thereafter (including Charles Stapleton) and Charles Stapleton then decided to exclude them when more anthropological evidence emerged (thereafter maintaining that he always knew they were not Karingbal), of itself, to be material. It is unsurprising that Kevin Albury would not understand the criteria for the establishment native title created by the NTA. On the anthropological evidence it is unsurprising that he would see the descendants of Jemima of Albinia as part of the group of people who, for a very long time, had been connected with the Arcadia Valley. It is also unsurprising that Charles Stapleton, Kevin Albury’s nephew, would go along with the position that Kevin had established and change his position once more anthropological evidence indicated that Amy Miller, the daughter of Jemima of Albinia and thus Jemima of Albinia herself, did not see themselves as Karingbal. Of themselves none of these matters indicate anything much about the Karingbal.
543 Third, I also do not consider that the mere fact that the Freemans came very late to the claim, of itself, of any real significance. It is again unsurprising that in the 2000s Kevin Albury could not make head or tail of the Freemans given that the vast majority of them had been relocated away from the Arcadia Valley in the 1930s. The evidence overwhelmingly supports the conclusion that the Freemans are descended from the Karingbal via Effie Freeman, the daughter of Mick Freeman.
544 The real point in the State’s submission is that it appears that the investigative anthropological exercise which was carried out largely by Dr Hutchings has created a body of persons united in its perception of itself as Karingbal and that this circumstance is inherently inconsistent with the notion that a native title claim group is defined by the traditional laws and customs which confer rights and interests in a group and “has an existence independent of any determination application, which existence depends upon the traditional laws and customs which give the claim group common or group rights and interests” (Augustine at [214] - [215]).
545 The submissions for the BRP never directly confront this issue. It is not answered by the fact that native title rights and interests might be held by an individual or a single family group. The evidence is that, at sovereignty, the Karingbal constituted a group of families who saw themselves as Karingbal and who were connected to the Arcadia Valley with differential rights and interests, at the least, in the northern and southern parts of that area. The claim of native title is for the group comprising the descendants of Albert Albury Snr and Maggie Suy See and Mick Freeman. But there is not much doubt on the evidence that not only were the descendants of Mick Freeman physically separated from the Arcadia Valley since about the 1930s but also that they actively chose to identify themselves as Wadja. The Freemans have only very recently identified as Karingbal and are only now learning Karingbal ways. The fact that the Freemans knew that they had a Karingbal connection because they had been told about it and had even, in the case of Anthony Freeman, seen parts of the Arcadia Valley when younger, is not the point. The point is that, until 2011, it is clear that the Freemans identified and had been raised as Wadja not Karingbal. This leaves the descendants of Albert Albury Snr and Maggie Suy See as people who, potentially at least, have continuously acknowledged and observed their status as Karingbal and the traditional laws and customs of the Karingbal. The revived interest of the Freemans in their status as Karingbal and the traditional laws and customs of the Karingbal is precisely that; a revived interest.
546 It is not possible to reconcile the Freemans’ evidence of being taught traditional Karingbal ways as young people with their evidence of having been raised and identifying as Wadja until 2011. While I have no doubt the Freemans were taught some traditional ways as young people I consider it highly likely that what they were taught were Wadja ways. It could hardly be otherwise given their evidence that they were raised and saw themselves as Wadja. The fact that they knew of their Karingbal connection, and some aspects of Karingbal culture, does not support the claims of having been taught Karingbal ways before 2011.
547 It must be remembered in this regard that the evidence of pre-sovereignty society is very thin. It is largely based on the anthropologists’ extrapolation from their knowledge of Aboriginal societies generally in this region. One of those societies, albeit further to the east, was the Wadja. If a person is raised as Wadja (as the Freemans were) and identifies as Wadja for their whole life (as the Freemans did) then the fact that aspects (even many aspects) of their culture would most likely have been the same or very similar to the culture of the Karingbal does not mean that a person raised as Wadja was also raised as Karingbal because of the cultural similarities. Self and family identification is important and cannot be disregarded. This is not to say that a person and their family cannot identify and be reared in more than one culture. The point here is that the Freemans, on their own evidence, were raised the Wadja way and identified as Wadja until 2011. This casts an entirely different light on their evidence.
548 For example, Edgar Freeman described in his statement many aspects of traditional culture that he had been taught as he was growing up, interspersed with what he was now being taught by Charles and Fred Stapleton. However, it was clear from his oral evidence that he had decided to learn about Karingbal ways in November 2011 when his mother had told him they would now be identifying as Karingbal. This indicates that the things that Mr Freeman had been taught about traditional culture before 2011 concerned Wadja traditional culture not Karingbal traditional culture. The statements of Dianne Evans and Celeste Hill followed a similar pattern. The statements described many aspects of traditional culture said to be Karingbal but in oral evidence it became clear that Ms Evans and Ms Hill were raised the Wadja way and thought of themselves as Wadja until 2011.
549 For these reasons I accept that the BRP (meaning the Karingbal), insofar as they can be described as a contemporary society, have been constituted as such by anthropological research directed towards the making of a native title claim. Apart from this, the BRP confront other insuperable difficulties as discussed below.
550 The State referred to the observation in Bodney at [97] that “[t]here could not be a more important law or custom for the identification of rights and interests in land than that by which Aboriginal people are related to tracts of land”. According to the State, Dr Hutchings referred in her main report to the north-south divide of the overlap area including references to the following:
(a) The literature discusses two local groups in relation to the overlap area which Charles Stapleton also describes as three family groups (the Alburys, Freemans and Suy Sees);
(b) Charles Stapleton identifies the boundary between the northern and southern groups as Meteor Creek;
(c) The northern group comprises the “Albury family and Maggie Suy See being part of the northern local group” and the “Freeman family being a separate family which was also a part of the northern local group”;
(d) South of Meteor Creek, and identified by reference to the Moolayember Creek, were the Moolayember tribe, identified in earlier ethnographic literature, and being the local group for the southern area;
(e) According to Charlie Stapleton there was a fight between the Moolayember group and the other Karingbal over stolen women and the Moolayember were ostracised. Dr Hutchings found no information on the identity of individuals from the Moolayember tribe;
(f) The “descendants of Albert Albury Senior are now the local group…for the southern regions of what is now the Brown River Peoples’ claim”;
(g) This is apparently on the basis that family members identify Maggie Suy See as from the northern group. She is believed to have married into the southern group by partnering with Albert Albury Senior;
(h) Dr Hutchings expresses the opinion that the Albert Albury descent group’s association with the southern areas “in all probability occurred prior to the date of effective sovereignty in 1860”, apparently on the basis of contemporary evidence regarding work histories;
(i) Dr Hutchings also argues that the Albury family hold strong associations with the southern part of the claim, but also retain connection with the northern part of the claim (Dr Hutchings cites as her only example that Charlie Stapleton “… knows country around Lake Nuga Nuga and Meteor Downs on different parts of the boundary of Karingbal (S. Hutchings, interview with C. Stapleton, 24/11 /06, field notebook #2”);
(j) Senior members of the Albert Albury Senior descent group are said to recognise members of the Freeman family’s “greater association with the northern part of the claim”;
(k) But Charles and Fred Stapleton are “seeking out members of the Freeman family that may be suitable to learn cultural information” in the whole claim area; and
(l) Despite all of this, “all Karingbal people enjoy rights and interests across Karingbal traditional country”.
551 The State, not without justification, described this evidence as confused and internally inconsistent. More to the point, as the State noted, none of the witnesses supported any of the propositions in (a) to (j). As the State put it, the effect of the evidence was (and this I accept):
None of the witnesses gave any evidence of any knowledge of sub-groups, or a north-south division. None of the witnesses had any knowledge of any differential distribution of rights in country; or of a north/south division, save for Sean Cutting who said that he had heard from Charles Stapleton that places like Lake Nugga Nugga were more the Albury’s area but he did not know, or was not sure, whether the northern areas were more Freeman country.
552 Given this evidence I consider that weight should not be given to the aspects of Dr Hutchings’ evidence to the contrary. The State submitted that it followed that “there is no evidence of continuity of the pre-sovereignty normative system of land-holding on the part of the Karingbal people”, citing Bodney at [82] in support.
553 In response it was submitted for the BRP that its case does not:
depend upon establishing that there are individuals (or sub-groups) who are the direct genealogical descendants of those who held individual or sub-group rights in particular parts of the overlap area at sovereignty. To the extent that there may have been a time when the Brown River People incorporated sub-groups associated with particular territory that does not detract from the legitimacy of today’s “all inclusive” group as the group which holds rights to the whole of the overlap area. Just as the laws and customs of any people will change over time, so too will individual and subgroup rights and interests.
554 The BRP also said that:
where the native title rights and interests which are recognised by a Court are communal or group rights and interests, is it necessary to identify the rights and interests that may be or may have been exercised and enjoyed by particular individuals or subgroups within the native title claim group.
555 In respect of these propositions the BRP cited in support Mabo v Queensland (No.2) (1992) 175 CLR 1 (Mabo) at 61 and Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 at [205]-[206]. However, the point being made in the cited passages is different from the point the State is making. In the cited passages the point being made is that where a group is found to have native title rights and interests a declaration to that effect may be made which operates as against the world leaving it to the group itself to determine their respective rights and interests as against each other in accordance with their traditional laws and customs. Hence, the declaration in Mabo did not need to deal with the fact that the Meriam people under their traditional laws and customs acknowledged and observed a land rights system where individual members occupied and cultivated certain areas to the exclusion of others. The point that the State is making is that the anthropological evidence (particularly that of Professor Sutton, but also the other anthropologists) supports the inference that the BRP (and the Bidjara for that matter), pre-sovereignty, had traditional laws and customs regulating their relationship to land which involved differential rights and responsibilities for different areas, the essence of the differences being familial and environmental clusters. That aspect of the BRP’s (for which it should be understood I mean Karingbal’s) traditional laws and customs has disappeared. There is now no recognition of differential rights and responsibilities for different areas. Accordingly, this is a change or adaptation in respect of the fundamental matter of connection to land which must be taken into account in assessing the BRP’s claim.
556 In Banjima People v Western Australia (No 2) [2013] FCA 868 Barker J found that what had once been local groups with different rights and responsibilities had coalesced into two areas. However, the evidence was to the effect that there continued to be a right to “speak for” particular areas of Banjima country and to economically use or exploit Banjima country in customary ways. The facts in the present case are different.
557 I agree with the State’s submission. An important aspect of the way in which the traditional laws and customs of the Karingbal regulated their relationship to their country has been lost. The Karingbal no longer recognise, acknowledge or observe any concept of differential rights and responsibilities for different areas. Other aspects of their traditional laws and customs in respect of land remain, essentially, the location of Karingbal country in the Arcadia Valley, that land rights are communal rather than individual, and those rights are inalienable. For these reasons the State’s submission that “there is no evidence of continuity of the pre-sovereignty normative system of land-holding on the part of the Karingbal people” is overstated. There is evidence that aspects of the pre-sovereignty normative system of land-holding on the part of the Karingbal people have continued (location of Karingbal country, communal rights and inalienability) but another important aspect (differential rights and responsibilities for different areas) has disappeared. The fact that Karingbal country is not a large area (at least not compared to the claims of the Bidjara) does not negate this evidence of loss of tradition, or change and adaptation of tradition, which must be taken into account.
558 The State submitted that although it could be accepted that the probable shift from patrilineal descent as the criterion for membership (that is, descent through the male line) to the sufficiency of cognatic descent (that is, descent through both the male and female lines) represents an adaptation of the traditional norm, regard must still be had to “the way in which the cognatic descent model works and the other social rules by which the composition of the land holding entity was identified and regulated”. I agree.
559 The State’s first point in this regard related to the evidence of Raymond Saltner, a son of Olive Beatrice Stapleton and half-brother to Fred and Charles Stapleton. Mr Saltner said that he had learnt from his mother that boys follow their mother and girls their father. The reason for this was said to be that girls strengthen their father’s bloodline as the woman is the strongest bloodline in the clan. It was apparent that Mr Saltner was unaware of the implications of this rule. It meant that his sons were not Karingbal and that his daughters, who were required by another rule to marry non-Karingbal, would have children who were not Karingbal. Professor Langton described this as an “extraordinary” variation from the norm identified by the other Karingbal witnesses. In my view this description is warranted and, for the reasons the State gave, the evidence cannot be dismissed as immaterial because it was limited to Mr Saltner. As the State noted, the evidence is that:
(a) he was told of this rule by his mother, Olive Beatrice Stapleton, who is one of Albert Albury Junior’s daughters and the fact that it was passed down to him is evidence that this is not necessarily the unique perspective of a person at a particular generational level today;
(b) he agreed in his evidence that this rule came “down from traditional law”;
(c) that raises the inference that his mother had that same information passed down to her and so there is evidence that more than a single Karingbal/Garingbal person has held this view at any one time;
(d) Raymond Saltner has 12 children and when compared with other persons in the claim group such as Charles Stapleton and Fred Stapleton, there is a comparatively large section of the group to whom Mr Saltner’s understanding will be transmitted;
(e) Mr Saltner has four brothers and sisters. His brothers are Charles and Fred Stapleton. There is no evidence from their sisters and it is open to infer that they potentially could hold Mr Saltner’s view; and
(f) Edgar Saunders Freeman identified Raymond Saltner as the person from whom he is learning since the death of Anthony Freeman.
560 The other aspect of Mr Saltner’s evidence, not mentioned by the State, is that when the effect of his understanding of this rule was pointed out to him (for example, that his sons were therefore not Karingbal) it was apparent that Mr Saltner believed the rule to exist and be the traditional norm but did not acknowledge the effect on his own sons. He still considered them to be Karingbal although he also apparently considered that the rule meant that his sons would not be able to “speak for country”. It would be up to his daughters to do that. This, however, as the State pointed out, appeared to conflict with another traditional rule that women cannot be elders.
561 This evidence, as the State submitted, is not able to be dismissed as a mere anomaly. It “demonstrates a lack of a shared norm in another significant respect”.
562 The same conclusion is indicated by the evidence about adoption. The anthropologists did not doubt, and I accept, that adoption would have been a recognised and relatively common method of recruitment into Karingbal society pre-sovereignty. Dr Hutchings, for example, noted that “adoption was considered a legitimate avenue of inheritance of rights within pre-sovereignty society”. She considered that “adoption did not preclude acquisition of rights and interests in land” amongst pre-sovereignty Karingbal.
563 The evidence of the contemporary Karingbal is to the opposite effect. As the State set out, Charles Stapleton said that at the 2006 claim authorisation meeting the people at that meeting agreed that “the rule was no adoption” but then qualified this to suggest that the rule was that adopted people could be Karingbal but could not “speak for country” as only “blood” could “speak for country”. Fred Stapleton agreed. Raymond Saltner thought that Kevin Albury decided that adopted people could not be Karingbal at all. The descendants of Les Albury complicate the position further. Adopting the State’s description:
[I]t seems that Les Albury’s grand-daughters took the contrary view at the 2006 authorisation meeting for the Karingbal #2 claim. Dr Hutchings reports that Fred Stapleton remembers Les Albury being reared up, and says that Fred Stapleton recognises Les Albury as his uncle and remembers that Kevin Albury recognised Les Albury as his brother. Contrary to that, in his evidence at the trial Fred Stapleton said he did not consider Les Albury to be Karingbal because his father was white and his mother was Kanalou. Clearly, on Dr Hutchings’ presentation, there is a diametrically opposed view on the adoption rule between “the elder” of the previous generation and “an elder” of the current generation.
564 Despite Dr Hutchings’ description of Fred Stapleton’s view, in his evidence, Fred Stapleton, like Mr Saltner, thought that Kevin Albury had decided against adoption as a means of recruitment to the Karingbal. Again, using the State’s words:
Thus, Dr Hutchings and Fred Stapleton attribute different views to Kevin Albury. The state of the evidence is such that it cannot be inferred that there is shared norm concerning adoption and the rights which it confers which has been passed on from generation to generation from Albert Albury Junior to the current generation.
565 The response in the BRP’s submissions to this issue is unpersuasive. The BRP, apparently overlooking the evidence of Dr Hutchings to the same effect, criticise Professor Sutton for his opinions that “adoption would not have precluded membership of a landed group in pre-sovereignty society” and “that using evidence of adoption to preclude someone from a native title claim group would be contrary to Aboriginal tradition”. The BRP submitted that “Professor Sutton should not extrapolate the traditions from one Aboriginal group to another”. However, it is apparent that such extrapolation is a fundamental component of the anthropological method used by all of the anthropologists. Indeed, without such extrapolation it would have been impossible for any real description of pre-sovereignty Karingbal society to have been provided by Dr Hutchings. The BRP’s submissions thus attempt to take the benefit of inferences based on extrapolation by anthropologists when necessary to support their claim and to criticise when the application of exactly the same methodology exposes a real and obvious discontinuity. This inconsistent approach does little to support the persuasive power of the BRP’s submissions.
566 The State also pointed out what it described as an unusual aspect of the contemporary criteria for membership of the Karingbal, namely, the apparent conferral of power on “the” elder (or most senior elder) at a particular time to determine who is or is not a member of the group which, the State said, also “represents a significant shift from the pre-sovereignty normative system”.
567 This observation is material. It was apparent from the evidence that, for example, Charles Stapleton had effectively decided (as the elder of the Karingbal) that the descendants of Jemima of Albinia (and, for that matter, Les Albury) were not Karingbal despite Kevin Albury’s acceptance of them as Karingbal. Dr Hutchings could think of only one example of such power vested in a single elder, Dr Sackett could think of no examples, Professor Sutton said he too could not “think of a case where it’s occurred” and Professor Langton said “[i]t can’t happen as far as I know”. Yet in the present case it plainly did happen. Kevin Albury, the elder at the time, recognised the descendants of Jemima of Albinia to be Karingbal. The attempts in the evidence by Charles Stapleton (and others) to suggest that Kevin Albury was not really doing so were unconvincing and an obvious result of his own views that they were not Karingbal. When Kevin Albury died and Charles Stapleton became the elder of the Karingbal (despite being the younger brother, a separate issue discussed below) he decided the descendants of Jemima of Albinia were not Karingbal. Although he stressed his reliance on the anthropologists in this regard there cannot be much doubt that Charles Stapleton was determined to ensure that the descendants of Jemima of Albinia were not accepted by the group to be Karingbal.
568 Some other observations not confronted in the BRP’s submissions should be made. The evidence disclosed other sources of considerable confusion amongst all of the witnesses called for the BRP as to the operation of the criteria for membership of the Karingbal. Virtually all of the witnesses, using the same language, said in their written statements that to be Karingbal “you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country. The Karingbal people have to accept you as part of the Karingbal mob”. The similarity of structure and expression of the written statements of the BRP was striking in this and many other respects. It strongly suggests the written statements were created by a common hand. Nothing was made of this in cross-examination and I raise it only for the purpose of explaining that in the event of inconsistency between the written statements and the oral evidence, the latter should be given greater weight. In any event, it became apparent through the cross-examination that the requirements of learning about Karingbal ways and getting to know Karingbal country would, if applied, exclude most of the members of the claim group because, apart from Charles and Fred Stapleton and to a lesser extent Raymond Saltner, most of them were only just beginning to learn Karingbal ways and getting to know Karingbal country.
569 Ultimately, when this difficulty was exposed, the criteria for membership of the Karingbal changed as the evidence progressed. It emerged that the only real criterion to be Karingbal was to have a Karingbal parent. Learning about Karingbal ways and getting to know Karingbal country were not criteria for membership of the group. They were criteria for developing the right to speak for country. What also became clear is that Charles Stapleton maintained strict control over who might be eligible to learn about Karingbal ways and get to know Karingbal country. The evidence disclosed that as the main holder of the knowledge in this regard Charles Stapleton effectively decides who is worthy to be provided this knowledge. If not considered to be worthy, the knowledge is not passed on even if there is no doubt the person wishing to acquire the knowledge is Karingbal. In fact, the evidence disclosed that Charles Stapleton would prefer to pass on misinformation about Karingbal ways and Karingbal country to younger Karingbal if he thought them untrustworthy. He explained this as necessary to ensure that the knowledge was not passed on to the wrong people who might damage Karingbal country (for example, by removing artefacts and disturbing burial sites). The relevant point for present purposes is that it is Karingbal people themselves who are being excluded from or misinformed about Karingbal ways and Karingbal country. This indicates that even the elder of the group recognises a lack of acknowledgment of and adherence to traditional norms amongst the Karingbal. It is not simply that different Karingbal have different levels of knowledge. It is that the contemporary position is that some Karingbal only are seen as worthy recipients of any knowledge and others are seen as people who should not have any knowledge at all passed on to them as they cannot be trusted with the knowledge. This is fundamentally at odds with the concept of the passing on of traditional knowledge from generation to generation.
570 The State submitted that “[i]n almost all respects, the former laws and customs regarding social organisation have ceased to operate”. I agree with this submission, as explained below.
571 The State referred to the evidence of Professor Sutton, which I accept, that:
What is fundamental to any traditional Aboriginal way of life is actual and classificatory genealogical kinship. Kinship at sovereignty would have been not merely a way of speaking to or about relatives, but would have formed the most important basic plank in classical social organisation, as well as being a primary structuring device for determining everyday behavioural etiquette between persons, and thus rules and norms of the society. Aboriginal kinship terminology frequently - not always full…- reflects the prescriptive marriage system and incest taboos of each kind of kinship polity. It was in that sense an important element of that which bound people together in an organised society based on shared norms. An Aboriginal society at sovereignty could be legitimately described as a kinship polity…. The topic, in my opinion, is largely omitted from Dr Hutchings's reports [references omitted].
572 The State correctly noted that:
Raymond Saltner (of the Albury family) and Edgar Freeman and Dianne Evans (of the Freeman family) - gave evidence of the way that they classify kin. Of that evidence, Professor Sutton identified only Dianne Evans’ evidence as demonstrating that she classified kin in the way that her great, great, great grand-parents would have.
573 I have already noted above that the Freemans identified as Wadja until 2011. While they knew of their Karingbal connection their identification as Karingbal is a recent, and revived, occurrence. Dianne Freeman was born and raised in Woorabinda and Brisbane. She always identified as Wadja until recently. The State said that is “is quite conceivable that she learned the structure of the kinship system as a Wadja woman and from Wadja people”. I consider this to be not merely quite conceivable but highly likely. The same must be said of Edgar Freeman and Celeste Hill.
574 It is apparent that what must have been a rich and textured kinship classificatory system pre-sovereignty, a system that resulted in Aboriginal societies being a “kinship polity”, has been reduced to something much simpler, much less textured and with far less meaning. Older people are called Auntie or Uncle (a development that Professor Sutton said is itself recent, which I accept) and the concept of the extended family remains important. Beyond that the kinship system has disappeared.
575 The four section class system, which would have subdivided traditional Karingbal society into moieties and sub-groups for the purpose of further regulating kinship and permitted marriages, has disappeared entirely. As the State said, there is no evidence that the marrying classes or moieties have been retained or even remembered. What has instead occurred within the Karingbal is that the four section class system that would have existed in traditional society has been replaced by a requirement that Karingbal “marry out”, that is, marry non-Karingbal. Dr Hutchings described this as a reconfiguration of the traditional norm “without forgoing the basic principles that underpinned these laws and customs”. However, if the concept of reconfiguration is apt, then it cannot be doubted that the reconfiguration has been radical. There is a material difference between a complex set of rules embodied by a four class system which all of the anthropologists said would have been the norm in pre-sovereignty Karingbal society and the contemporary rule that Karingbal have to marry non-Karingbal. As best it might be said that the basic taboo against incest informs both rules but otherwise they bear no resemblance to each other. The transformation of the traditional norm seems to have been rapid. The evidence is that Kevin Albury thought that Karingbal had to marry non-Karingbal but, as the State noted, only one generation back Albert Albury Snr married Maggie Suy See, who is also regarded as Karingbal.
576 Professor Sutton described this rule as an innovation rather than a continuity of any kind. As he put it, the “present day rule of tribal exogamy is not likely to be an outgrowth of the former situation in Central Queensland, but is more likely to be a reversal of it”. I agree.
577 Accordingly, I accept the State’s submission that:
The contemporary stated norm of marrying outside of the Karingbal People constitutes a complete departure from traditional law and custom. Intra-tribal marriages were a feature of the traditional normative system.
578 The BRP’s submissions did not confront this material. The submissions stressed the rules about marriage amongst contemporary Karingbal (all expressed the need not to marry “too close” and the basic rule of marrying out of the group) but did not deal with the fact that those rules represent a radical difference from the traditional rules.
579 The State also noted that “[w]hile there is evidence of totems and totemic beliefs within the Brown River People, there is no evidence at all of any totems - singularly or in combination – associated with the marriage classes or how those totems were inherited” so that “[i]t is reasonable to conclude that the system of totems has passed as the marriage classes have disappeared”. I agree. The belief of the Karingbal in the emu totem and that the emu is a reincarnation of deceased Karingbal and thus cannot be harmed in any way appears to be the last remnant of what would have been a complex totemic system associated with the four section class system. Unlike the contemporary rule about marriage, I accept that contemporary Karingbal beliefs about the emu are a continuation of part of an aspect of what would have been a much more complex system of totemic beliefs. To this extent I found the State’s submissions about the level of doubt in this regard unpersuasive. Professor Sutton’s initial scepticism about a tribal-wide totem was ameliorated by the information from Tennant-Kelly’s research from Cherbourg in 1935 about the existence of tribal totems at least in south-east Queensland. Accordingly, I am prepared to accept this aspect of Karingbal beliefs as a manifestation of part of an aspect of a traditional norm. I stress that this is part of an aspect of a norm because I do not accept that the beliefs of the Freemans can be seen to be a continuation of any Karingbal traditions. The Freemans are discussed in more detail below.
580 Otherwise the State is correct that the evidence disclosed a lack of shared norms in this regard. The Freemans appeared to believe in the owl as a family totem although the acquisition of the totem was unclear. The Stapletons did not claim any personal or family totem. There is evidence that Kevin Albury claimed the emu as his totem and said that his father had the same totem whereas he claimed that his mother’s totem was bush turkey and said that people do not marry people of the same totem. As the State said this implies that totems were obtained from the father’s line and that Kevin Albury retained some knowledge of the role totems played in respect of marriage rules. If this is so, that knowledge has been lost. None of the contemporary Karingbal witnesses suggested that totems played a role in respect of marriage. All in all the State was right to rely on Professor Sutton’s conclusion that:
[T]he general picture for the Brown River applicants is therefore one of residual presence of totemic beliefs, some shared, some not, rather than a robustly continuing one.
581 The reliance by the BRP in their submissions on Dr Hutchings’ evidence about totems is misplaced. Dr Hutchings opined that there were various totems “associated with two matrilineal exogamous moieties or intermarrying groups, for people throughout central Queensland and northern New South Wales”. I accept that opinion. It is consistent with the evidence of the other anthropologists. Dr Hutchings also described the adherence of the Karingbal to the rule that a person could not eat their own totem. Insofar as this applies to the general totem for the Karingbal of the emu and the Freemans’ owl totem, I accept it. The relevant point, however, is that there are now no totems recognised by the Karingbal as associated with two matrilineal exogamous moieties or intermarrying groups. Moreover, only the Freemans have a personal totem and, as explained below, it must be inferred that this totem was acquired through the Freemans’ Wadja connection. If the Alburys had personal totems, which the evidence about Kevin Albury indicates is likely, then the system for transmission of that totem and all knowledge of the totems has been lost.
582 This analysis indicates problems with Dr Hutchings’ opinions, for example, that the rules about marriage and totems have been adapted to contemporary circumstances. The adaptation, if it can be called that, about marriage has involved radical transformation to the extent of reversal of the traditional norm. The traditions about totems have become disconnected from marriage for which they used to perform a critical function and, most likely, what was once a section totem, the emu, has become a totem for the Karingbal as a whole. It is true that it can be said that this represents an adaptation of one aspect of the traditional system. But it also represents a loss of the majority of the system and virtually all of its social significance. The BRP’s submission that “[t]he laws and customs of the totemic system as described in the literature that once operated for the pre-sovereignty society continue to be practiced by the contemporary society in modified form” simply do not address the reality of the relationship between contemporary and traditional norms disclosed in the evidence.
583 The State noted that the evidence about elders was inconsistent as between the Albury and Freeman families. This is correct. As the State described the evidence:
(a) Charles Stapleton generally recognises Kevin Albury with the title of “the” elder and Tim Albury before that. Not everyone respects the position of elder and he has to be watchful as to whether what he tells people will remain confidential.
(b) Fred Stapleton believes that families had their own elders but could not tell the court who the elders for the Freeman family were. He also stated that in the old days women could not be elders or have any say about Law business and that – presumably in keeping with that claimed tradition – there were no women elders in “our family”. He then said that other families had to make their own decision about that subject. He also referred to knowledge being passed on to the “eldest son in the family” in a way which appears contrary to that recorded by Dr Hutchings. As to that subject, Professor Sutton summarises as follows:
“209. At para 431 of Hutchings 2012a it is said that it is 'custom among Karingbal people that the position of senior for men is handed down to the first-born son within a family'. The examples provided are:
• Tim Albury's role as senior was passed to Kevin Albury; however, Kevin was the youngest of Tim's three brothers, not his eldest son (see genealogies) (para 432 (ibid.))
• Kevin Albury in turn attempted to maintain the tradition by passing information on to his son Mark Albury (para 432 (ibid.)); however, Mark is Kevin's fourth son not his eldest son;
• Fred Stapleton was handed the position of senior by his uncle Kevin Albury (para 435 (ibid.)); however, Fred was not only a nephew rather than a son, he was also a second son not a first son;
• Fred Stapleton ceded his senior role to Charlie Stapleton; however, Charlie was not Fred's oldest son but his younger brother (para 435 (ibid.))
210. All of these examples are at odds with the stated rule. As a result of this information, it is my opinion that the custom of handing seniorship to the first born son of a family is a rule that has become defunct.”
(c) The fracturing of that rule is consistent with the erosion of the process of transmission of knowledge from parents to children as can be seen from the following examples in Fred Stapleton’s own evidence:
(i) “Kevin Albury’s sons nearly all grew up away from the country and didn’t know anything about the country” and so Kevin did not pass on very much to his son Mark Albury who was not a witness in the trial; and
(ii) when interviewed by Dr Hutchings at Lake Nuga Nuga in 2011, he was asked who he was passing on his knowledge to and he replied that he took Raymond Saltner out when they went on [cultural heritage] walks, however, his son “doesn’t know anything”.
(d) Sean Cutting said that the elders for country in the north near Rolleston were the Freemans but that Charles Stapleton spoke for the whole area.
(e) The Freeman family thought that women could be elders. Rhonda Munns regarded Dianne Evans of the Freeman family as her elder but thought also that Dianne Evans could speak for the Albury or Stapleton families and that Charles or Fred Stapleton could talk for the Freeman family. Conversely, Anthony Freeman stated that “Karingbal families can’t speak for other Karingbal families”.
(f) Dianne Evans also thought that there were not different elders for different families of the Karingbal people and that she could be classed as an elder too. She gave evidence that she had given permission for someone to go to Carnarvon Gorge (which is in the southern region of the claim area). She also considered herself as “one of the people that somebody could ask before going on to Karingbal country”.
584 The BRP’s submissions gloss over the numerous inconsistencies in this evidence. The submissions identified respect for elders as a Karingbal norm but failed to grapple with the inconsistent evidence of the way in which this rule operates amongst contemporary Karingbal people. It is one thing to identify what is said to be a shared norm of “respect for elders”. It is another when the evidence discloses significant inconsistency about how a person becomes an elder, who may become an elder, or who is an elder for whom. What is clear is that if, as Dr Hutchings said, the traditional rule among Karingbal people was “that the position of senior for men is handed down to the first-born son within a family” then it is apparent that the rule was not operating when Kevin Albury became the Alburys’ recognised elder, was not operating when Charles Stapleton became the Alburys’ recognised elder, and may never have operated for the Freemans. Accordingly, this is another cultural domain which exhibits substantial difference and discontinuity.
17.2.6 Spiritual beliefs and practices
585 As the State acknowledged, evidence was given by Karingbal people of spiritual beliefs and practices including, in particular: (i) calling out to country so the spirits would know you were there, (ii) not removing things from country, (iii) not going to another’s country without permission, (iv) not killing one’s totem, (v) protecting burial sites, (vi) not going to certain places (such as not climbing the hill behind Lake Nuga Nuga), (vii) taking off your shoes before entering certain places; and (viii) seeing certain birds as protectors or messengers.
586 In respect of the evidence given by the Freemans about these matters I refer to the discussion above. Otherwise I accept that there was evidence of these shared beliefs and am prepared to infer that they represent some simplified form of continuation or adaptation of traditional Karingbal beliefs.
587 That said the oral evidence, as it emerged, did not support Dr Hutchings’ conclusions about “precise ritual protocols that must be followed by individuals if they are to steer clear of the potential dangers…spiritual forces may employ”. The rules were by no means precise. Their content was far more amorphous than Dr Hutchings suggests, the rules were not always followed, and the consequences of not doing so were by no means clear other than that bad things might happen or the person might get sick. Accordingly, Dr Hutchings’ statement that “[b]y following these rules a claimant instinctively links themselves with their country and the living identify themselves to their ancestors whose spiritual essence permeates the landscape” is too emphatic and generalised to be accepted as accurate given the oral evidence as it emerged. As the State noted, Kevin Albury had apparently removed artefacts from country to teach people about them and they remained off country for the purpose of training during the induction of employees of mining companies. This would have contravened the rule and the contravention continues. Fred Stapleton did not call out to country when he showed Dr Hutchings around and told her that most people “around here” did not even know this rule.
17.2.7 Eungies (Junjadis/Junjudis)
588 The evidence disclosed that Karingbal people believe in eungies or junjadis who are little hairy men or spirits. However, their beliefs were by no means uniform. As the State put it:
The Albury family regard junjudis and eungies as the same creature. The creatures:
(a) are hairy men who roll rocks down the hill at Lake Nuga Nuga where they are found;
(b) can be heard and smelled but not seen;
(c) are also a bird;
(d) are not known to harm anyone but they can torment them;
(e) are only around at night and can be kept at bay by fires.
589 Within the Alburys Sean Cutting did not mention eungies or junjadis. Raymond Saltner thought they were hairy little men that rolled rocks down hills to scare people.
590 The Freemans’ evidence about eungies or junjadis included:
(a) they are “little fellas” with a distinctly “bad” smell;
(b) some may take children away if they behave badly while others are known to keep things at bay;
(c) they can coax children away at night;
(d) eungies and junjudis are the “same but different” and “[o]ne looks after[you], the other [does] not;”
(e) the junjudis are generally considered to protect people, particularly children (and with whom they play and who are the only people that can see them ) although Dianne Evans said that children can see them better than adults;
(f) children may be given a junjudi which they keep until adulthood before passing them on to their children.
The evidence of the Freeman family accords in part with what is recorded, but there are several inconsistencies with what Dr Hutchings reports. Dianne Evans says that she was told by Auntie Daisy [Freeman] that eungies tried to take Fred Stapleton away when he was a boy and had they been successful he would have disappeared. Fred Stapleton does not mention this significant event; rather, he says that they would not harm you. In cross-examination, Dianne Evans says that they were seen in Woorabinda which is where Fred Stapleton lived for a time and so it appears that she was talking about the presence of those creatures in Woorabinda. Celeste Hill says that they become friends and protectors of some people.
Edgar Freeman knows them as little hairy spirits that would come to get you or torment you if you played up. Edgar Freeman owns two of the creatures and they rock his children to sleep at night. He will pass them on to his children. Edgar Freeman also says that his Uncle Wallo (Anthony Freeman) had three of the creatures that are like guardians at night time and that he got two of the creatures from Uncle Wallo when he was about 20 or 21. Significantly, Edgar Freeman said that the creatures were from the Wadja side and not the Karingbal side. Anthony Freeman does not refer to them in his statement at all. Edgar Freeman has also seen smoking done to a person tormented by eungies but, again, this occurred in Woorabinda and not in Karingbal country.
591 Consistent with the discussion above, it seems likely that the Freemans’ beliefs about eungies/junjadis are largely, if not exclusively, a result of their Wadja beliefs. The fact that Edgar Freeman’s personal little hairy spirits were inherited through his Wadja connection indicates that they have little, if anything, to do with his Karingbal connection. I draw the same inference about the other evidence given by the Freemans in this regard.
592 For these reasons I again find unconvincing the emphasis that Dr Hutchings placed on the shared belief in eungies/junjadis. As the BRP put it, Dr Hutchings said that the Karingbal “retain knowledge of these creatures and they continue to influence their behaviour, particularly when on country”. The evidence, however, disclosed inconsistent beliefs about these spirits, including such fundamental issues as their nature and their function.
593 It is also apparent, again as the State said, that eungies/junjadis are not any form of creation story. They are a far lower order spirit creature. As Professor Sutton said “they’re at one end of the spectrum in terms of the power and profundity of spiritual beings in the ancient Aboriginal systems…”. In terms of creation stories, only one remains amongst the Karingbal, the Mundagatta or rainbow serpent.
594 I again accept the State’s proposition that the oral evidence of the Karingbal people does not support the opinions Dr Hutchings expressed. Dr Hutchings described the Mundagatta as “part of the mythology held by the claimants that distinctly define the territory within the claim by describing the creation of significant places and internal boundaries according to rivers, creeks and mountains. The mythology explains the creation of Carnarvon Gorge, which is replete with painting sites and burial sites” and as “associated with initiation sites, many of which are located in the Gorge” and the “main mythology for the southern part of the claim”.
595 However, what emerged in the evidence of the Karingbal people was far less nuanced than this. Leaving aside the issues about the Freemans discussed above, the evidence was to the effect that older people had told younger people that the Mundagatta created Carnarvon Gorge before leaving to locate itself in Lake Nuga Nuga where it still resides. For this reason a person must not swim in Lake Nuga Nuga.
596 Professor Sutton said:
[A]s to the claimants having learned this word [Mundagatta] by continuous oral transmission, except perhaps between themselves after the word was rediscovered through reading, and would consider it likely to be a spelling - pronunciation based on the work of Gavan Breen, and thus a case of restoration rather than of continuity.
597 I accept this opinion.
598 It is also the case that Professor Sutton said that creation stories, in traditional societies, would have been “[f]ound everywhere in the country”. Yet what is left is a fragment of what would have been a rich culture of creation myths explaining all aspects of the country. The fragment is “a single story of the Mundagatta and the creation of the two main features of the overlap area, the Gorge and Lake Nuga Nuga”. Apart from the Mundagatta the evidence did not disclose any traditional creation narrative recognised by Karingbal people. The reason for this was clear from the evidence of Charles Stapleton – no such traditional narratives have survived other than a bare notion of the Mundagatta as the creator of the country. As the State said there was nothing in the oral evidence, to which the greatest weight must be given, of any connection between the Mundagatta and the internal boundaries that would have existed as environmental/familial clusters in traditional times, any initiation or other ceremonial or significant sites.
599 The State rightly emphasised a particular aspect of Professor Sutton’s evidence which I consider to be of significance to all of the proceedings. The evidence was this:
In a more traditional setting one expects different people to have different traditional stories to tell, as well as some held in common. There will be a pantheon of Ancestral Beings, huge sagas, a pharmacopoeia it would take a whole book to describe, a rich array of designs used in religious contexts, and hundreds of songs whose verses are linked to known and named places in the landscape. In a heavily acculturated or revival situation it is my experience that one comes across the same few stories being recalled or learned about the same few places, the same beliefs in little hairy men or similar goblin-like beings (in this case, the 'eungies' and 'junjuddies'), the same belief in messenger birds, the same beliefs in ghosts (here /guriguri/ or 'Goori Goori' etc), and the same few bush medicines (such as the `gumby-gumby' in this case). These will tend to be the small if widely shared remnant of what was once a very rich tapestry.
600 The evidence in these proceedings fits this pattern. Amongst the Karingbal, presumably as a result of the massive dislocation of their people after the 1930s, what is left of the “pantheon of Ancestral Beings, huge sagas, a pharmacopoeia it would take a whole book to describe, a rich array of designs used in religious contexts, and hundreds of songs whose verses are linked to known and named places in the landscape” are various inconsistent beliefs about eungies/junjadis and one story about the Mundagatta capable of expression in a single sentence.
601 The State’s submissions accurately summarise the available evidence as follows:
There is no evidence of contemporary ceremonial life, including any increase ceremonies. In cross-examination, Charles Stapleton’s attention was drawn to a statement in the Karingbal #2 claim (filed in 2006) for which he was an applicant that, at the time the claim was filed, members of the claim group were conducting traditional ceremonies on country. He was asked what those ceremonies were. He replied, “I was – I’ve never ever said that. So I don’t know where you got it from.”
Traditional initiation practices have ceased. Tim Albury was the last of the Albury family to have gone through initiation at the site on Bauhinia Downs around 1918. Although Anthony Freeman described an initiation practice in his statement, it was accepted by Dr Hutchings that this was not reflective of a traditional practice and therefore did not demonstrate any continuity of law and custom in this regard.
There is no evidence of shared norms regarding the traditional mourning practices or burial practices referred to by Dr Hutchings as comprising part of the pre-sovereignty normative system. There is evidence of smoking houses at Woorabinda, and evidence that Kevin Albury’s ashes were scattered at Lake Nuga Nuga by the local (non-Aboriginal) property owner Bloss Hickson in a contemporary ceremony that gave effect to Kevin Albury’s wishes to be “buried” on country. Rhonda Munns in her written statement gave the impression that “we” always smoke a house with sandalwood and that at funerals “we” do a smoking ceremony as though this was a Karingbal practice of which she had some experience. However, in cross-examination, she said that she has witnessed a single smoking at one funeral in Rockhampton.
602 The evidence, accordingly, cannot be reconciled with the opinion of Dr Hutchings’ that:
…although members of the claim group no longer practice the ceremonies associated with male initiation, aspects of the social laws and customs that underpinned these ceremonies continue to be known and practiced among them.
603 The evidence did not disclose any aspects of the social laws and customs associated with any traditional Karingbal ceremony that continue to be known and practiced among the Karingbal people. The highest the evidence went was the holding of some knowledge by some people (Charles and Fred Stapleton) of some former sites that were said to have been used for ceremonial purposes, but the content of those ceremonies and their social function has been lost.
604 I have made the point above that the BRP’s submissions, in many respects, fail to grapple with the reality of the evidence as it emerged during the hearing. Difficulties I have with the submissions, most of which I have already noted, include the following matters.
605 First, the submissions take at face value the written statements of the BRP even when they were demonstrably inconsistent with the oral evidence. This is a problem because it was apparent that the statements had been structured and expressed under the guidance of a common hand and, not infrequently, contained material which was not borne out in oral evidence. The strength of the common hand involved in preparing these statements is apparent from a few examples.
Being Karingbal
(1) Charles Stapleton: “To be a Karingbal person you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country. The Karingbal people have to accept you as part of the Karingbal mob”.
(2) Fred Stapleton: “To be a Karingbal person you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country. The Karingbal people also have to accept you as part of the Karingbal mob”.
(3) Dianne Evans: “To be a Karingbal person you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country. The Karingbal people have to accept you as part of the Karingbal mob”.
(4) Raymond Saltner: “To be a Karingbal person you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country… The Karingbal people also have to accept you as part of the Karingbal mob”.
(5) Edgar Freeman: “To be a Karingbal person you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country”.
Elders “growl” at misbehaving young people
(1) Charles Stapleton: “If they do not listen to the elders we growl at them. People get punished by the spirits too if they marry too close”.
(2) Edgar Freeman: “My mum and the other elders are strict about this and people get growled at if they are getting too close to relations even if they are distant relatives”.
(3) Dianne Evans: “The elders growl at the young people if they are not doing the right thing”.
(4) Celeste Hill: “If young people are getting too close we will go up and talk to them and if they do not listen us then we will growl at them and go and talk to the elder in their family”.
(5) Rhonda Munns: “If young people do not listen, then they get growled at”.
606 Where the written evidence is consistent with the oral evidence I have no concern about the similarities of structure and expression in the statements. But where the oral evidence was inconsistent with or, by inference, did not support the content of the the written evidence then reliance on the written evidence is misplaced. The BRP’s submissions do not weigh up the oral and written evidence but rely, indiscriminately, on both where it suits the BRP’s claims. This tendency makes it difficult to use the BRP submissions as a reliable source of information.
607 Second, the submissions take at face value the reports of Dr Hutchings even where the oral evidence of the Karingbal witnesses was inconsistent with or, by inference, did not support the content of Dr Hutchings’ opinions and conclusions. In the event of such inconsistency, again, I consider that the oral evidence of the Karingbal witnesses has greater weight. Again, this tendency makes it difficult to use the BRP submissions as a reliable source of information.
608 Third, the submissions fail to grapple with the difficulties presented by the evidence of the Freemans. In their written statements there is no mention of the fundamental fact that they were raised and identified as Wadja until November 2011. The statements present the Freemans as people who are and have always identified as Karingbal. In this sense, the written statements (no doubt unintentionally) are misleading. Even when the Wadja are mentioned as neighbours of the Karingbal, the statements do not mention the Freemans’ long-standing self-identification as Wadja. Further, information is presented in the statements without reference to the date when the witness became aware of it. For example, the first time Dianne Evans met Kevin Albury according to her oral evidence was 2008. Her statement refers to Kevin Albury having told her about Karingbal country but without any identification of the fact this could only have been imparted in 2008. While I accept that Dianne Evans, Celeste Hill and Rhonda Munns knew they also had a Karingbal connection and were told various things by their older relatives about the Karingbal as they were growing up it is difficult, if not impossible, from the statements to identify what aspects of claimed traditional beliefs and practices are associated with the Karingbal or the Wadja. In circumstances where the content of traditional beliefs is based on broad inference about likely social structures of a large region (including the land of the Wadja) and these witnesses agreed in cross-examination that they had been raised the Wadja way and always identified as Wadja until recently, I do not consider that their written statements can be taken at face value as evidence of the continuation of Karingbal traditional beliefs and practices. In the circumstances, a fairly detailed explanation of the inter-relationship of their growing up and identification as Wadja with the new-found identification as Karingbal was required for this evidence to be useful. For example, all of the Freemans emphasised birds additional to the emu, such as the curlew, willy wagtail and night owl as significant. Other than the emu I am not prepared to infer that those beliefs have anything to do with the Karingbal as opposed to the Wadja connection of the Freemans. The same applies to many other aspects of the Freemans’ evidence including about marriage, elders, eungies, dance, hunting and food gathering, calling out to country, and permission to enter country. In fact, even where the statements purport to be dealing with an exclusively Karingbal issue I doubt whether the statements can be taken at face value. For example, all of the Freeman statements mention not being permitted to talk in the Karingbal language at Woorabinda. The implication is that but for the suppression of Aboriginal languages at Woorabinda, the Freemans would have been speaking Karingbal. However, given that the Freemans were raised Wadja it is far more likely that an accurate description would have been that the speaking of any Aboriginal language, including Wadja, was discouraged at Woorabinda. The BRP’s submissions do not confront these difficulties but instead give the evidence of the Freemans full weight without regard to these issues of concern.
609 These observations disclose why it is unnecessary to deal with each and every point made in the submissions of the BRP. The indiscriminate use of the evidence makes most of the BRP’s submissions generally unpersuasive. Nevertheless, there are some issues raised in the submissions not yet addressed which require specific consideration.
610 The BRP submitted that “[a]s a consequence of the manner in which the proceedings were conducted, most of the evidence of the BRP Applicant is in writing. Most is also unchallenged”. It will be apparent from the discussion above that I do not accept this submission. It fails to recognise the significance of the cross-examination of the Freemans about their identification as Wadja and the cross-examination exposing inconsistencies between the evidence of Karingbal witnesses and their statements, as well as with the opinions of Dr Hutchings.
611 The BRP submitted that “the Aboriginal evidence has consistently favoured a particular set of laws and customs and in particular, a common set of laws and customs under which the BRP possess rights and interests in relation to and have a connection with, the land and waters of the application area”. For the reasons given above, I consider this to be an unsustainable overstatement of the effect of the evidence as a whole. The evidence at best, supports an inference that some people who identify as Karingbal recognise and acknowledge fragments of laws and customs some of which have a connection to parts of the overlap area.
612 The BRP also submitted that “it would be open to the Court to infer that the laws and customs described in the evidence have remained substantially intact since sovereignty or at least that any changes have been of a kind contemplated by pre-sovereignty norm”. Again, I find this unpersuasive. The evidence at best supports an inference that some fragments of laws and customs have continued to be known by some people, albeit in a heavily attenuated or adapted form since sovereignty (such as the location of Karingbal country, the Mundagatta belief, the emu belief, a generalised notion of respect for elders, a generalised notion of respect for burial sites, a desire to be buried on country, a taboo against incest) whereas most laws and customs have been lost entirely (including all ceremonies, all burial rituals, all other creation myths, all song and dance, the kinship system, differential rights and responsibilities in different areas, the language) or transformed beyond recognition (including the rules in respect of marriage, acquisition of status as an elder).
613 The BRP said that the evidence of the Karingbal was not all that different to the evidence which was given by the Aboriginal witnesses as referred to in Sampi FC at [58]-[63] and from which the Full Court held that the primary judge should have found that the Bardi and Jawi people shared one system of law and custom at least as far back as the latter part of the 19th Century”. I disagree.
614 First, in Sampi FC in the cited passages the Full Court was dealing with the evidence of the Bardi and the Jawi acknowledging the same laws and customs rather than different laws and customs.
615 Second, the balance of the evidence in Sampi about the continued acknowledgment of the single system of laws and customs bears no resemblance at all to the facts of the present case. The BRP’s submission that “[t]he middle aged and elderly BRP witnesses all gave evidence that they learnt about the laws and customs described in their evidence from their older relations – parents, grandparents and others in the parental or grand-parental generations” simply glosses over the reality of the evidence discussed above. It also pays no heed to the fact that there is no evidence of the continuation of any form of Karingbal society as such after sovereignty and certainly not after the forced relocations far from Karingbal country of the Freemans. At best the evidence discloses an awareness of descent from Karingbal that continued through Kevin Albury and the Freemans and an awareness of some fragments of what might be inferred to be Karingbal traditions. This is a case where, at least insofar as the Karingbal are concerned, inferring the continued existence of a society (in the native title or any other sense) is not supported by the weight of the evidence, let alone the existence of a society which acknowledged and observes traditional laws and customs.
616 For these reasons I do not accept the BRP’s submission that:
Whilst it is considered that there has been the loss of some ritual and ceremonial practices, nonetheless, the Aboriginal and the anthropological evidence in this case has described a body of rules “the constitutional status and elaborate nature” of which “make it improbable that the system arose in the relatively short period between sovereignty and the time of the witnesses’ ‘old people’” [Sampi v Western Australia [2010] FCAFC 26, (2010) 266 ALR 537 at [64].]. It is submitted that, inter alia, the evidence regarding the spirits of the ancestors, the creation of Karingbal country by the Mundagarrta and the totemic relationship with the emu are consistently held by all the BRP witnesses and must be rooted in a pre-sovereignty society.
617 The “body of rules” of the Karingbal, such as it is, is hardly elaborate and, on the evidence, it is probable that large elements of revival and recreation since 2006 and the making of the claim have occurred, particularly in the case of the Freemans. As to the Mundagarrta story, it is but a simple fragment likely, as Professor Sutton said, to involve elements of revival. The totemic relationship with the emu represents an adaptation, the rich social significance of which as part of the kinship system has been lost and the spiritual significance transformed. This is not a case of some understandable differences in evidence about norms. It is case where even contemporary norms are almost impossible to discern.
618 I accept the BRP’s submission that “Professor Sutton modified his view regarding social organisation towards a greater degree of continuity” in this domain than his initial opinion which was that the BRP “no longer practice in their original form most of the cultural traditions that Dr Hutchings identified in her reports”. I found Professor Sutton’s evidence extremely useful. I did not, however, find the oral evidence of the Karingbal pointed in this direction, at least not when the whole of the evidence is weighed having regard to the considerations set out above.
619 I accept also the BRP’s submission that the Stapletons in particular exhibited a far greater knowledge of at least the Arcadia Valley than any of the Bidjara witnesses. However, I do not consider that such knowledge is capable of supporting an inference of traditional laws and customs under which there are rights and interests in relation to the land when the weight of the evidence indicates, at best, the continuation of so few fragments of traditional laws and customs in such attenuated or radically revised forms.
620 For the reasons given above I am not satisfied that the requirements of s 223 of the NTA have been met by the BRP. I accept that as at sovereignty the overlap area excluding Carnarvon Gorge and Carnarvon National Park was Karingbal country with the Karingbal people having rights and interests in that land arising from their recognition, acknowledgment and observance of traditional laws and customs in connection with that land. I accept also that the Karingbal had rights and interests in at least Carnarvon Gorge and probably Carnarvon National Park in the overlap area for burial and ceremonial purposes even though that land was in Bidjara country.
621 I am not satisfied on the evidence that Karingbal society continued to exist in any sense after sovereignty and certainly not after the forced relocations from this area that occurred during the 1930s in particular. I am also not satisfied that the people who now identify as Karingbal possess rights and interests under traditional laws and customs which give them a connection with the land and waters of the claim area. First, I am not satisfied that any body of traditional law and customs, as opposed to attenuated or transformed fragments, have continued. Second, I am not satisfied that what has continued provides any connection to the land and waters of the claim area. This is not a case where the evidence supports the conclusion that Karingbal society has had “a continued existence and vitality since sovereignty” (Yorta Yorta at [47]). To the contrary, the evidence supports the inference that Karingbal society effectively ceased to exist until attempts were made to revive it from 2006 onwards as part of the native title claim. Even then the attempts have been fragmented and involved dispute despite the small size of the claim group. The reasons for the effective cessation of Karingbal society are not beyond surmise: European expansion into the Arcadia Valley, the displacement of the Karingbal by pastoralists, and the forced relocation and dispersal of many of them to Woorabinda and elsewhere. But the reasons do not alter the fact of the lack of substantial continuity of traditional Karingbal laws and customs. The loss of traditional laws and customs has simply been too great and what remains simply too different and too little to conclude that the people who now identify as Karingbal possess rights and interests under traditional laws and customs which give them a connection with the land and waters of the claim area. The evidence does not support the inference that the observance and acknowledgment of the pre-sovereignty laws and customs of the Karingbal people has continued substantially uninterrupted since sovereignty. Apart from the thread represented by Kevin Albury there is little evidence of the continuation of Karingbal laws and customs between sovereignty and the commencement of the Karingbal native title claim in 2006. The evidence of the contemporary Karingbal people is largely irreconcilable with the continuation of any material body of traditional laws and customs of the Karingbal people. Consistent with the conclusion reached in Risk v Northern Territory of Australia [2006] FCA 404 at [823]:
The firm impression I have is that the evidence does not reveal the passing on of knowledge of the traditional laws and customs from generation to generation in accordance with those laws and customs during much of the 20th Century.
622 It is also appropriate to note that this conclusion says nothing about the value or merit of the Karingbal people attempting to revitalise their cultural traditions. As Professor Sutton put it:
Restorative attempts in relation to the culture revitalisation, which is a field I have been very much involved with myself, helping families with the revitalisation of their languages now over some decades, and it’s something that I totally agree with but that’s not really particularly relevant here.
623 It follows that the separate questions relating to the BRP and Karingbal No 2 claimants must be answered in the negative and their native title claims insofar as they relate to the overlap area must be dismissed.
624 The State acknowledged that:
It was apparent from the evidence given for the Bidjara witnesses, that amongst those witnesses, there is a strong “Bidjara identity”.
625 I agree. In contrast to the position of the Karingbal, and perhaps purely as a result of an initial greater population, the evidence does support the inference that a Bidjara society has continued to exist since sovereignty at least in the common, rather than the NTA, sense of a society. That is, a distinct body of people who identify as Bidjara existed at sovereignty and may be inferred from the evidence to have continued to exist at all subsequent times. Unlike the Karingbal it cannot be inferred that the concept of a Bidjara society is largely the result of the native title claim process and the anthropological evidence required to be gathered in support. The Bidjara plainly existed as a distinct body of people who identified as Bidjara and who demonstrated a real interest in their own cultural heritage well before the era of the NTA. The issues for the Bidjara are whether their contemporary Bidjara society is united in its acknowledgment and observance of the traditional, that is pre-sovereignty, laws and customs of the Bidjara people and whether those laws and customs found their continued connection to that part of the overlap area which I have found was Bidjara country.
626 The State’s position is that this question must be answered in the negative for the Bidjara, albeit for different reasons from those that informed its position about the BRP. According to the State the evidence does not “demonstrate the requisite continued acknowledgment and observance of the body of laws and customs which it may be inferred united the ancestors of the Bidjara people, at sovereignty” for two basic reasons as follows:
(a) First, an absence of evidence. This topic was not addressed by Professor Langton in any of her reports. The focus of the written evidence, both of Professor Langton, and of the Bidjara witnesses, was upon assertions of the extent of the territory of the Bidjara people. In so far as there was oral evidence given by Professor Langton and/or the Bidjara witnesses, this was in response to questions put in the course of cross-examination about aspects of the normative system.
(b) Other than by adopting the “book end approach” - which the Full Court in Risk on behalf of the Larrakia People v Northern Territory (2007) 240 ALR 75 (Risk FC) at [82] said was not the correct approach – there is no evidence to support a finding of continued acknowledgment and observance of laws and customs. The Court has:
(i) No evidence of the Bidjara normative system – although it may be possible to make a finding on the basis of inference from the evidence put forward in relation to the Brown River area;
(ii) Some evidence from Rusty Fraser, a person who was born in 1920 and died in 2003; and
(iii) Evidence from contemporary Bidjara people, about some aspects, but not touching on many.
(c) Second, even if one assumes, favourably to the Bidjara People, that in so far as there are certain laws and customs acknowledged and observed now, they were transmitted from generation to generation, the contemporary laws and customs do not reflect fundamental aspects of the pre-sovereignty normative system.
627 I accept the State’s submission that the anthropological evidence about the pre-sovereignty system for the acquisition and enjoyment of communal rights in land of the Bidjara must have included differential rights and responsibilities based on familial/environmental clusters. That evidence has been identified above and need not be repeated here. The only additional observation which should be made is that the extent and geographic differences of the areas incorporated within Bidjara country (as described by Uncle Rusty let alone the more expansive claim that I have rejected above) are so vast that the notion that all Bidjara held all of the same rights and interests in the whole of Bidjara country under the pre-sovereignty traditional laws and customs of the Bidjara people is untenable.
628 The evidence supports the inference that this important aspect of the pre-sovereignty traditional laws and customs of the Bidjara people had been lost by the time of the generation of Uncle Rusty Fraser, Bob Mailman and Betty Saylor. As the State said, “no evidence of any continued acknowledgment or observance of these aspects of the law and custom was given by Rusty Fraser, Richie Fraser, Bob Mailman or Betty Saylor, at the preservation of evidence hearing in 2001”. While Floyd Robinson said he had been told that “[y]ou’ve got different parts of country relate to different mobs, different bigguns, totems and things like that, or different families associated with different camps here and there, birthplaces, burial places, ceremony places” it was apparent that the other contemporary Bidjara witnesses denied the existence of any such notions in their current dealings with each other. Even for Floyd Robinson, who had been told these things, the basic rule now was that the whole of Bidjara country belongs equally to all Bidjara, which is a stark contrast to the position that would have existed under traditional Bidjara law and customs. The passage of time, the displacement of Bidjara people from their country during European colonisation, the need to find work elsewhere, would all have impacted on the continued observance of this aspect of traditional law and custom but the relevant fact is that it has been entirely lost and was probably lost by the early 20th century.
629 For these reasons I accept the State’s submission that:
The idea that all 10,000 Bidjara people hold undifferentiated – and therefore unregulated - rights and interests in the whole of such area of land and waters as may properly be found to be Bidjara country is not consistent with what can reasonably be presumed to have been the normative system in place at sovereignty.
630 Similarly, the State was correct to point out that the notion advanced in the Bidjara’s claim that the Karingbal were a sub-clan of the Bidjara was not supported by the evidence of most of the Bidjara witnesses.
631 Other discontinuities in respect of the Bidjara’s relationship to land were noticeable. The contemporary Bidjara witnesses, unlike the Karingbal it must be said, seem to have lost any real understanding of (at least the eastern) boundaries of their country based on traditional knowledge. The expansive boundaries claimed to have been supported by Uncle Rusty Fraser, as explained above, are not supported by any rational view of the evidence and, more to the point, are not a result of the handing down by word-of-mouth of the knowledge of the traditional boundaries of Bidjara country. While most of the Bidjara witnesses grasped that Bidjara country was centred on the area west of the Great Dividing Range, traditional notions of country and the country of neighbours of the Bidjara appear to have largely been lost.
632 These conclusions are supported by the evidence. For example, Rodney Mailman said that he did not know where any sites of Aboriginal heritage were on the overlap area until they were located while inspecting the land on behalf of mining companies. He did not know much about the land until he carried out this work. Nor, for that matter, did any other Bidjara person who gave evidence.
633 It was apparent from the evidence of the Bidjara witnesses that the basic criterion for membership of the Bidjara is descent from a Bidjara parent, whether it be through the female or male line.
634 The State said, and I accept, that:
There has clearly been an adaptation over time, such that descent from either one’s mother or one’s father is acceptable. The State acknowledges that this is appropriately described as an adaptation; as opposed to a new rule.
635 The State also said, and again I accept, that:
The original rule of patrilineal or patrifilial descent operated within a broader network of marriage rules characterised by a four class section system and exogamous moieties which regulated the composition of the particular land holding entity whether it be an estate or smaller local group. The contemporary cognatic system appears to be unregulated, without any imposition of any kind of limitation on the reckoning of group membership which, as a consequence of the cognatic decent model, would be ever expanding.
636 It is true that Uncle Rusty Fraser said that “that “people who had moved away from Bidjara country as youngsters ‘gotta come back [to] prove themselves Bidjara’” but I do not consider that too much weight can be given to that isolated statement, the context of which is unknown, in circumstances where the bulk of the evidence was to the effect that descent from a Bidjara parent makes a person Bidjara and Bidjara identity can never be lost.
637 There is a lack of evidence about adoption as a criterion for membership of the Bidjara. The Bidjara’s claim relates to biological descendants and thus would seem to exclude adopted people which, on the evidence, would be inconsistent with traditional laws and customs. However, as the State noted, there is evidence in Bagshaw that adoption appears to be accepted and there was no evidence the equivalent of that given by the Karingbal that adoptees were excluded or could not speak for country. I am prepared to give the Bidjara the benefit of the doubt on adoption continuing to be recognised as a legitimate means of obtaining membership of the group.
638 That said, I accept the State’s submission that the expansive approach to group membership evident from Mr Robinson, who claimed that many people were Bidjara regardless of how they identified themselves (Amby Albury, Maggie Shepherd and the Miller family including Darren McLeod), is inconsistent with traditional laws and customs. So too was his position that if anyone spoke the Bidjara language they must be Bidjara. However, as explained above, I do not consider it fair to give real weight to the position of Mr Robinson, whose role as the advocate for the Bidjara, gave him a prominence in the proceedings disproportionate to the other witnesses few of whom made claims to similar effect. Hence, I am not prepared to use Mr Robinson’s advocacy as evidence of material discontinuity.
639 The State submitted that “[i]n almost all respects, the former laws and customs regarding social organisation have ceased to operate”. As set out below, I accept this submission
640 The State correctly noted that:
(1) There was no evidence from the Bidjara witnesses regarding kinship rules or a kinship system (such as behavioural norms between kin; terms used to refer to kin).
(2) Kinship terms are no longer used – older men and women are simply referred to as “Uncle” and “Aunty”.
641 Professor Sutton described this practice as one that had “evolved rapidly in the national Aboriginal domain in recent decades” and did not “reflect genealogical relationships but the recognition of status and gender”, with the consequence that the use of such terms:
… is a post-classical innovation and represents a departure from traditional kinship norms…
642 I accept this evidence.
643 As the State said, the anthropological evidence was consistent in supporting the existence of a “four class section system and exogamous moieties which regulated the composition of the particular land holding entity whether it be an estate or smaller local group” in pre-sovereignty Bidjara society.
644 There is evidence from a recorded interview with Kruger Fraser, a Bidjara man, in the early 1970s of knowledge he held of the “skin” names (which form part of the section system). Uncle Rusty Fraser also knew about the system of skins. He was possum from his mother and red kangaroo from his father and said people from the same skin or meat could not marry. He said also that Bidjara could not marry Bidjara but had to marry a different tribe. However, as the State noted, none of the contemporary Bidjara witnesses gave any evidence about knowledge, let alone continued observance of, any aspect of the four class section system except Patricia Fraser. Floyd Robinson said he had been taught about skins and meats by Uncle Rusty Fraser but gave no evidence about the substance of the rules in support of this claim. The State explained the context in which Patricia Fraser’s evidence was given.
The only evidence came from Pat Fraser who gave oral evidence on the last day of the lay evidence (Monday, 13 May). Pat Fraser with “Keelen Mailman, Cheryl Lawton and Mr Robinson” “did some research by listening to [Uncle Kruger Fraser’s] language tapes, and that was only over the weekend” (ie the weekend before she gave evidence). When they thought something was relevant, they would listen to it again. Pat Fraser’s evidence in relation to “meats” and “skins” was based on what she had heard on the tapes. Pat Fraser candidly admitted that this system is not something that continues to be followed by Bidjara People.
645 Consistent with the position of the State this evidence cannot be seen as suggesting any continued knowledge of the four class section system. To the contrary it suggests that the knowledge has been lost and some attempt at revival was made for the purpose of the hearing. As such, I do not accept Professor Langton’s opinion that this showed “very clear evidence of continuity”. I consider it shows clear evidence of loss of traditional laws and customs. I instead accept the evidence of Professor Sutton who said there was no evidence of continuation of section/moiety structures as norms for the selection of marriage parties. For example, Rodney Mailman said that while he had read somewhere that Bidjara should not marry other Bidjara most Bidjara now married within their own tribe and he did not know the rules about marriage.
646 The anthropologists agreed that traditional Bidjara society would have regulated marriage under the section system. The State was correct to note that, as the section system itself has disappeared, so too has the traditional law about marriage. The State said that, unlike the Karingbal, the Bidjara have not “gone so far as to introduce a (new) rule requiring marriage outside the group”. This is difficult to reconcile with that part of Uncle Rusty Fraser’s evidence in which he described an apparent traditional rule of a requirement to marry outside the Bidjara. Whatever the true status of the rule as described by Uncle Rusty Fraser it is clear that there is no currently observed rule of Bidjara marrying only non-Bidjara nor any contemporary observance, and almost no knowledge, of the traditional four section system. For example, as far as Brendan Wyman was concerned, while he knew his totem was red kangaroo, that knowledge had no significance for marriage or social organisation for him. He said that the only remaining rule was that you cannot marry your own blood. This cannot be reconciled with the statement of Bob Mailman of 21 February 2008 that the marriage rules remain much the same as in the past. Accordingly, the traditional laws and customs of the Bidjara in respect of marriage have disappeared, other than the basic taboo against incest.
647 I accept the State’s description about there being only:
fragmentary, and inconsistent, evidence given by some Bidjara witnesses regarding totems (“meat”): Rusty Fraser identified a person’s “meat” as coming from your mother; others referred to a family totem (eg Keelen Mailman), or inheriting a totem from your mother or your father.
648 I accept also that there is an element of continuity in the Bidjara’s continued respect for elders (just as there was for the Karingbal). Unlike the State I do not consider that the approach of the Bidjara to the Karingbal (such as that the Karingbal do not exist or are a sub-group of the Bidjara) is good evidence of this discontinuity because that approach has no doubt been affected by the litigation.
649 I agree with the State, however, that the weight of the evidence indicated that for all practical purposes the domains of separate men’s and women’s business has been lost. While (like the Karingbal) Bidjara witnesses were aware of the existence of men’s and women’s sites previously used for the distinct purposes of each, there was nothing in the evidence to suggest any continued practice of these distinctions. It is also true, as the State noted, that:
(a) Floyd Robinson gave extensive evidence referring to various photographs depicting places (outside the overlap area) associated with “women’s business”;
(b) When asked about this, Keelen Mailman said that it was not really the right thing for him to be doing, but suggested she had given him permission retrospectively;
(c) Keelen Mailman stated that there are some areas which are “exclusively ‘Women’s Business’” and that she teaches her girls about these areas and what they mean. There is no other evidence that explains this bare assertion or gives any information about the normative content of womens’ business or the basis upon which it is a shared norm within the community. Moreover, the content of the womens’ business itself is not identified. The oral evidence also contained references to women’s and men’s business, however, there is simply no evidence about what it is or the role which it plays other than vague and general references to marriage. Yet, as is apparent, the marriage system is no longer operative. It is therefore not possible to conclude that women’s business operates as a norm in that context;
(d) The formerly strict division between mens’ and women’s business has also become blurred. In the past, she could “never have imagined it being like Uncle Rusty looks after that specific stuff. It would have been men look after men’s stuff and women look after women’s stuff.” However, now, Keelen Mailman is a “keeper” of a male initiation site which she accepted was exclusively mens’ business. The explanation given appears to be that old people have died and it has become necessary for her to perform that role. However, that circumstance merely provides evidence of a loss of the norm that maintained men’s and women’s business as supposedly exclusive domains, and the reason for the loss. In any event, the mens’ site in question was an initiation site and initiations have ceased.
(e) Sheryl Lawton candidly acknowledged in her statement at [59] that “There was none of the women’s business stuff for me growing up. I think my mum’s education going to boarding school, she didn’t have that cultural background and not understanding the Bidjara language, she wouldn’t have been inclined to teach us because it wasn’t her language and she had the primary care of us because dad was away a lot of the time working”;
(f) Patricia Fraser’s evidence was that “Dad would pass information on to Mum and Mum would teach us girls if certain customs required women’s business.” This evidence simply does not give any useful detail of what women’s business is or of the “certain customs” that “required women’s business.” Moreover, her mother was Mandandandji and there is no evidence about how and in what circumstances a Bidjara man would pass on information to a Mandandandji woman or about the type of information that would be. The evidence is an assertion that such a thing as womens’ business exists but no evidence about its content or its normative quality. Under cross-examination, she said that womens’ business was hunting and gathering. However, there was evidence throughout the hearing that men also hunted. When further pressed, about whether womens’ business was passed on to her by her mother, she responded, ‘How could she pass on something she didn’t know?” The witness did then suggest that “birthing places” and “getting the young girls ready for marriage and all that” were womens’ business and that women’s places could be recognised by certain carvings on the caves. That evidence shows only a general knowledge about the topic. It does not demonstrate whether such birthing places are still used or if not, why they are not. There is no evidence that any place is used to prepare young women for marriage. There is no evidence of which particular places are womens’ places for those activities;
(g) Brendan Wyman in his statement referred to his first association with Carnarvon Gorge in the 1980’s when he came into possession of a sandstone artefact that was identified by Rusty Fraser as “women’s business”. He and his Uncle Stan were instructed by Rusty Fraser to take it to Graham Walsh (a European archaeologist) who was the “main bloke up there.” He said that no women were asked to take the object back (as it needed to be taken back urgently) and that he gave it Graham Walsh and he does not know what happened to it after that. This evidence does not support that womens’ business – which again in this evidence is vague and general – is observed as a shared norm within the claimant group.
650 Whatever the soundness of the reasons for it, this evidence indicates that there is no longer any practice within the Bidjara that maintains what would have once been a strict division of men’s and women’s business. The nature and content of any continuing rules is unknown on the evidence. The evidence either operates at the level of mere assertion without supporting detail or is inconsistent with the continuation of any norm in this regard.
651 I accept also the State’s submission that:
There is also doubt as to the knowledge of the Bidjara (and the Brown River Peoples) about the location of areas that might be sacred to either men or women in various parts of the overlap area. Rodney Mailman, in his oral evidence-in-chief, was asked about working with Garingbal and Kara Kara people, doing cultural heritage monitoring – “at that time, nobody knew about the sacred sites until we came across them”.
17.3.5 Spiritual beliefs and practices
652 I accept all of the State’s submissions about these issues, to the extent they were dealt with in the evidence. Accordingly:
(1) While “Keelen Mailman stated that “[o]ur law requires that no one take from the area any stones tools etc”, the rule does not appear to have the necessary quality of obedience to constitute a norm. Ms Mailman herself takes tools etc from Mt Tabor to Iman country for inductions – she says she has “permission form the spirits and my elders” to do that; they never leave the keeper’s hands – but the point is that the rule has given way to the demands of contemporary life.
(2) Professor Langton suggested that there was evidence of hand stencils being “updated” by families. No such evidence was given at the trial.
(3) The evidence of Rodney Mailman shows that the cultural heritage processes in which the Bidjara have been involved in the overlap area for the purpose of enabling mining was investigative rather than one by which known sacred sites were identified for preservation in advance of mining activities and the like.
(4) While some Bidjara witnesses gave evidence of calling out to the old people or spirits when entering country, others gave no evidence on the topic.
(5) Some Bidjara witnesses gave some evidence about spirit messenger birds and junjuddies, but others did not. Sheryl Lawton was one who referred to junjun men, or little hairy men, who was either a good or bad spirit. So was Floyd Robinson who referred to the little hairy men as spirits that would get you as a child if you played up. Keelen Mailman had been told about the junjuty too, and said their home was Carnarvon Gorge. This is consistent with Professor Sutton’s view of such spirit as at the lower end of the pantheon that once would have existed. Floyd Robinson had also been taught about messenger birds, the curlew and the goori goori being birds of death. Brendan Wyman also had some knowledge of messenger birds.
(6) Floyd Robinson gave evidence of traditional narratives including for example about the Galah and how he got his red feathers and the Wedge Tail Eagle, which it should be inferred from his evidence had been passed on to him by his elders.
653 The bottom line remains that identified by the State. The problem for the Bidjara in this regard is evidentiary. The focus of the Bidjara evidence was so much on establishing the extent of Bidjara country that little has been said about the continuation of traditional laws and customs as norms of contemporary Bidjara society. As the State said, even if it is assumed, for example, that other Bidjara also know the traditional narratives to which Floyd Robinson referred:
[T]he critical inquiry is how knowledge of those narratives demonstrates the maintenance today of the traditional normative system. The evidence does not directly address that inquiry. For example, do the stories relate to how rights and interests in land are held and regulated? Do they relate to particular sites? Do they convey information having a normative content? Are they known by most of the group or is knowledge of them confined in some way for any particular reason? The evidence simply does not permit of any answers to these questions.
654 Even the evidence of Floyd Robinson - who had spent a great deal of time with Uncle Rusty Fraser and thus had what should be inferred to have been the best opportunity to learn traditional laws and customs – lacked detail about the content of what he was taught. Typical is his description of, for example, dreaming stories where he said that “Carnarvon’s relates to Dreaming story ceremonies, and that’s what connects all the neighbouring tribes, that’s what makes our pathways to certain animals. Where the Rainbow Serpent moved, certain places became creation places and story places for certain animals…”. However, he did not explain the substance or content of any such story except the bare details provided about the Mundagatta (see below). He said also “[s]ee with Bidjara when you’re connected to country, you’re connected through your totems, you’re connected through a tree, stones, plants, all that. You have different – like totems we call ..... in Bidjara. There are certain things what connect you to country and that”. But no detail was given about any totem connecting any Bidjara person to any specific tree, stone or plant in the overlap area. The same might be said of Keelen Mailman’s evidence. She also spent a great deal of time with Uncle Rusty Fraser when he was older. While she said he had taught her “all the times of our people” the content or substance of what Ms Mailman was taught, apart from the location of Bidjara country, remains unclear. Given the balance of their evidence, this lack of detail cannot be inferred to be the result of cultural sensitivity. The inference which must be drawn is that the detail is simply not known.
17.3.6 Creation stories – Mundagatta
655 The Mundagatta creation story has continued within the Bidjara as it has for the Karingbal and BRP claimants.
656 The position for the Bidjara is the same as that for the Karingbal, namely, that there was nothing in the oral evidence, to which the greatest weight must be given, of any connection between the Mundagatta and the internal boundaries that would have existed as environmental/familial clusters in traditional times, any initiation or other ceremonial or significant sites. Moreover, the Mundagatta is a solitary fragment of what would once have been a rich tapestry of Bidjara creation myths relating to all aspects of Bidjara country. All that has disappeared. The reason for this emerges from evidence such as that of Sheryl Lawton who said that her elders told her the story of the Goori Goori bird and the hairy men which frightened them as children. They were also told about the Mundagutta when the river was flowing. But generally the children were not allowed to be with the adults who spoke amongst themselves. Not dissimilarly for Floyd Robinson the creation story had elements of control of children about it. The Mundagutta would get you if you swam alone as a child. That said, traditional elements remained, Floyd Robinson and Keelen Mailman both describing the Mundagutta as the creator of the rivers and water bodies around Bidjara country. However, unlike Floyd Robinson who recognised an aspect of the Mundagutta as a travelling being which connected Aboriginal people (which appears to have a source in traditional law based on the anthropological evidence), Ms Mailman thought that the Mundagatta was limited to Bidjara country (which is inconsistent with the anthropological evidence of the traditional creation myth as a shared and connecting belief of many tribes).
17.3.7 Taboo on the names of the dead
657 I adopt the State’s submission that:
In so far as the custom regarding taboo on names of the dead is concerned; the evidence from the Breen/Kruger Fraser interview shows that, at that time, this remained part of the customs of the Bidjara people. However, there is no evidence that this is still the case.
658 The State submitted that this aspect of normative behaviour is also lost. Insofar as this submission relates to the overlap area I agree. While mention was made of Carnarvon Gorge having been an important ceremonial location there was no evidence about the content of those ceremonies or their social function (other than burial rites) and no suggestion that any such traditional ceremonies have continued in living memory. As the State said:
There was no evidence that provided any detail about the content of any ceremony or the persons who would be involved, nor was there any evidence about any normative aspects of any particular ceremony. No witness gave evidence of any ceremonies - including increase ceremonies – that are conducted today. No witness gave evidence about any contemporary ceremonial use of the Gorge or any shared ceremonial use of the Gorge with any neighbouring group.
659 There was evidence that Uncle Rusty Fraser had a keen interest in traditional Bidjara songs and dances and, in his later years, took a leading role in transmitting his knowledge to the Bidjara dancers. In contrast to the State I am prepared to infer that while Rusty Fraser lived there would have been an element of continuity of Bidjara traditions in the songs and dances that he taught younger men. However, the State was correct to note that there was a lack of evidence that the dance now being performed was passed down or is conducted in any way that accords with any identified or identifiable aspect of the normative system. Uncle Rusty himself doubted that such continuation would be possible saying that “Oh they won’t ever keep that going because you’ve got to teach them to get the Bidjara dance going, see. A lot of people can’t sing the songs to get the Bidjara dance going, see”.
660 The notion that Floyd Robinson had some knowledge of these matters was undermined by his evidence. The relevant evidence did not go beyond the fact that there is a Bidjara dance troupe which, as the State said, “performs at various places, but the evidence falls short of demonstrating how or why dancing plays a role in either the traditional normative system or the role that it plays in any continuing acknowledgement and observance of the traditional normative system. The evidence also does not show that dance is a shared norm”.
661 As with the Karingbal, there was no evidence that initiation ceremonies play any role in the contemporary life of the Bidjara. Nor was there evidence (as opposed to submissions about) any ceremonies of the Bidjara as a group and, in particular, no evidence that any ceremonies represented the continuation of any traditional customs. In terms of individual ceremonies Keelen Mailman referred to smoking ceremonies as something she had been taught but it is clear that none have been conducted in or have any specific association with the overlap area.
662 Floyd Robinson’s evidence disclosed that his close contact with Uncle Rusty Fraser had given him more knowledge than many of his contemporaries but the knowledge was of laws and customs that are no longer practised. For example, he acknowledged that the Karingbal had a connection with Arcadia Valley. It may be inferred that somewhere he obtained knowledge of the Bidjara’s traditional eastern neighbours. However, he believed Carnarvon Gorge to be Bidjara with other tribes having rights to attend ceremonies only. But, as he also said, he had no knowledge at all of the type of ceremonies that might have been conducted at Carnarvon Gorge.
663 As noted, the Bidjara are in a better position than the Karingbal when it comes to the continuation of their language. Just as this was not an issue fatal to the claims of the BRP when considered in isolation so too the continued existence of a Bidjara language is not determinative in favour of the Bidjara’s claims.
664 The fact is that of all of the Bidjara witnesses only Keelen Mailman had acquired her language by traditional means (from her mother) and only she had any degree of fluency. For all other witnesses there was knowledge only of some words in circumstances where it may be inferred that knowledge of a number of those words had not been transmitted by traditional means but rather by access to Breen’s work. Claims that Floyd Robinson had some expertise in the language were inconsistent with his evidence. Sheryl Lawton’s evidence was that while her elders all spoke Bidjara, as young people they did not learn how to speak the language and understood bits of it only. However, they had a copy of Breen's Bidjara language book now and were trying to learn more of the language.
665 For these reasons I do not accept Professor Langton’s opinion that “continuity” (for the Bidjara) “can be seen in the extent of the lexicon that many people are still able to speak”. The Bidjara have a contemporary tool available to them in Breen’s work to enable a broader revival of their language but the notion that the language continues or has continued in any traditional manner is not supported by the evidence.
666 Many of the submissions have already been dealt with in the context of other issues above.
667 Otherwise, I accept that there is evidence (as there was for the Karingbal) of some knowledge of traditional foods and hunting techniques. I am prepared to infer that this knowledge has been handed down from generation to generation and thus there is an element of traditional Bidjara society that continues today. That evidence is insufficient to weigh against the much larger apparent losses and the lack of evidence of other claimed continuities.
668 One problem is that the documents I treated as written submissions of the Bidjara purport to contain additional evidence. They cannot be accepted as such. Their status is as a submission and as I made clear during the hearing to the extent they travelled beyond the evidence weight would not be given to them.
669 The State accurately identified that the basic problem for the Bidjara’s case is evidentiary. The Bidjara had to prove their case by evidence. As the State said:
(1) “The Bidjara case also suffers from the lack of evidence that the normative system was passed down to the current generation of claimants from generation to generation, even from the set of named apical ancestors of the claim group. There is evidence from a small number of witnesses, from a group said to number 10,000, representing descendants from less than half of the set of apical ancestors. In those circumstances, it cannot be inferred that the remaining descendants adhere to a normative system governing rights and interests in the overlap area”.
(2) “The Bidjara case focussed almost exclusively upon the question of identifying traditional Bidjara country rather than on identifying those aspects of the normative system that the group were united in acknowledging and observing. However, it is the latter that informs the former. Thus, there has been a radical departure by the current generation from an understanding of or adherence to the boundaries carved out by the Mundagatta, and acknowledged and observed by Rusty Fraser”.
(3) “Other characteristics of the Bidjara case are consistent with a substantial erosion of the fundamentals of the normative system including that the communal title under which the land was originally held was characterised by land holding units among whom rights were differentially distributed. The state of the evidence does not support a finding that Bidjara people are united in their acknowledgement and observance of any of the other features of the normative system identified by Dr Hutchings. No connection to the overlap area, by the relevant traditional laws and customs, has therefore been demonstrated”.
670 Moreover, to the extent that there was evidence about traditional laws and customs, the weight of the evidence indicates that the most important elements have either disappeared or been transformed into a much simpler and less detailed set of norms including, for example, the details of the land tenure system (now, all Bidjara have equal rights in Bidjara country which cannot have been the traditional law), the details of the marriage system (now, all Bidjara can marry as they see fit subject only to the taboo against incest which was not the traditional law), the creation myths (as for the Karingbal, only the Mundagarra story remains but in a form more threadbare amongst contemporary witnesses than even as recently as Uncle Rusty Fraser’s generation) and initiation ceremonies (all had disappeared long before the hearing to preserve evidence in 2001 according to Uncle Rusty Fraser). Otherwise, what remains appears to have largely involved revival (for example, the Bidjara language for most Bidjara has not been traditionally acquired, Keelen Mailman being the sole contemporary exception and Bidjara songs and dances which Uncle Rusty revived apparently almost single-handedly) or remnants (for example, the use of certain plants for medicinal purposes and some hunting and food practices).
671 This state of affairs is unsurprising given that, as Brendan Wyman said, Uncle Rusty Fraser was “the last – more or less, the last remaining man that knew that stuff” (that is, tribal knowledge). Uncle Rusty Fraser himself said that “I'm the only fella knows about it [traditional Bidjara rules]. See, none of these young fellas don't understand anything, don't know how to sing songs, don't know how to get tucker and all them sort of thing. You got to teach them all, you know, how to get them and everything”. While Uncle Rusty taught younger Bidjara including Floyd Robinson some things, Uncle Rusty’s evidence that he was the last and only remaining Bidjara at the time of the preserved hearing who had any detailed knowledge of traditional Bidjara laws and customs rings true. Moreover, it is apparent that even by the time of Uncle Rusty’s evidence most of those traditional laws and customs had disappeared.
672 For the reasons given above I am not satisfied that the requirements of s 223 of the NTA have been met by the Bidjara. I accept that Carnarvon Gorge and Carnarvon National Park was Bidjara country at sovereignty with the Bidjara people having rights and interests in that land arising from their recognition, acknowledgment and observance of traditional laws and customs in connection with that land. However, I am not satisfied that the people who now identify as Bidjara possess rights and interests under traditional law and customs which give them a connection with the land and waters of the overlap area because I am not satisfied that any body of traditional law and customs, as opposed to attenuated or transformed fragments of law and customs, have continued. While there continues to be a body of people who have maintained their identity as Bidjara, the connection of the Bidjara to the land and waters of the claim area including Carnarvon Gorge and Carnarvon National Park is not a connection which has as its source traditional law and custom. As noted earlier, these conclusions concern the requirements of the NTA. They say nothing about the fact of Bidjara identity or the existence of contemporary Bidjara society. Equally, these conclusions say nothing about the value of Bidjara efforts to continue, revive and protect aspects of Bidjara culture.
673 It follows that the separate questions relating to the Bidjara claimants must be answered in the negative and their native title claims insofar as they relate to the overlap area must be dismissed.
674 The separate questions should be answered as follows:
1(a) No
1(b)(i) and (ii) Do not arise.
675 The consequence is that each of the proceedings, to the extent the proceeding relates to the overlap area, must be dismissed.
676 The State requested the opportunity to consider applying for a determination that native title does not exist in relation to the overlap area. I propose to make directions permitting that application to be made.
I certify that the preceding six hundred and seventy-six (676) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. |
Associate:
Dated: 6 December 2013
Annexure
