Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15
FEDERAL COURT OF AUSTRALIA
Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15
corrigendum
1 The list of parties on the cover page, Orders and Reasons pages has been amended.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jessup. |
Associate:
Dated: 2 February 2015
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: | Melbourne |
THE COURT ORDERS THAT:
1. The questions referred to in the orders made on 30 October 2013 be answered as follows:
(a) No;
(b) Does not arise.
2. The proceeding be listed for further hearing in Brisbane at 2:15 pm on 11 February 2015.
3. Any party who, or which, proposes to submit that orders should now be made for the determination of the proceeding as a whole, file and serve a minute of the orders sought, and a brief memorandum in support of the making of the orders, on or before 6 February 2015.
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 586 of 2011 QUD 6196 of 1998 |
BETWEEN: | DESMOND SANDY, RUTH JAMES and PEARL SANDY ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE First Applicants CONNIE ISAACS and MAROOCHY BARAMBAH ON BEHALF OF THE TURRBAL PEOPLE Second Applicants |
AND: | STATE OF QUEENSLAND First Respondent BRISBANE CITY COUNCIL Second Respondent MORETON BAY REGIONAL COUNCIL Third Respondent REDLAND CITY COUNCIL Fourth Respondent TELSTRA CORPORATION Fifth Respondent GARRY MURPHY Sixth Respondent BRISBANE PORT HOLDINGS PTY LTD Seventh Respondent EDDIE RUSKA Eighth Respondent LOGAN CITY COUNCIL Ninth Respondent COMMONWEALTH OF AUSTRALIA Eleventh Respondent THE SHELL COMPANY OF AUSTRALIA LTD (ACN 004 610 459) Twelfth Respondent INCITEC FERTILIZERS LTD Thirteenth Respondent MOONIE PIPELINE COMPANY PTY LTD Fourteenth Respondent CENTOR AUSTRALIA PTY LTD Fifteenth Respondent |
JUDGE: | JESSUP J |
DATE: | 27 JANUARY 2015 |
PLACE: | Melbourne |
REASONS FOR JUDGMENT
1 This proceeding arises from the consolidation, on 18 January 2013, of the following applications under s 61 of the Native Title Act 1993 (Cth) (“the Act”), each seeking a first determination of native title:
QUD 6196/1998, an application originally made by Connie Isaacs on 30 September 1998 on behalf of the Turrbal People; and
QUD 586/2011, an application made by Desmond Sandy, Ruth James and Pearl Sandy (“the Yugara applicants”) on 7 December 2011 on behalf of the Yugara, or Yugarapul (but referred to hereafter as the Yugara), People.
2 The State of Queensland (“the State”) is a respondent pursuant to s 84(4) of the Act. There are twelve other respondents but they did not participate in the hearing of so much of the case as is the subject of the reasons which follow.
3 On 11 March 2008, Ms Isaacs’ daughter, Maroochy Barambah, was added as an applicant on behalf of the Turrbal People, and, on the death of her mother on 8 May 2013, she became, and remains, the only such applicant. Despite that circumstance, Ms Barambah strongly resisted any suggestion that her mother’s name be removed from the record as an applicant in the case. In that resistance, she had the support of counsel for the State. In the circumstances, and despite my misgivings, I took no step to effectuate any such removal.
4 The subject of the present phase of the proceeding is defined by the terms of orders made by the court on 18 January, 23 May and 30 October 2013. On 18 January, and again on 23 May, it was ordered that all issues apart from extinguishment of native title be heard and determined prior to the hearing of any extinguishment issues. Then on 30 October, it was ordered that the following questions be determined at trial:
“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 claim area?
(b) in relation to that part of the claim 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?”
5 The “claim area” is the area bounded by the dark blue line on the map in App A to these reasons. The Yugara application relates to the whole of that area. The Turrbal application relates to those parts of that area that are shown in brown on the map. As I understand the Turrbal case, the reason why parts only of the land bounded by the blue line on the map are claimed is the recognition that, in other respects, native title is likely to have been extinguished. Because I am not now concerned with the extent of extinguishment, Question (a) effectively requires me to take the same approach to the Turrbal application as I must in relation to the Yugara application. Ms Barambah contends that the question should be answered in the affirmative. She makes no discrimination as between different parts of the claim area. The effect of her submission is that, but for any question of extinguishment, native title exists in relation to all land and waters in the claim area. The Yugara applicants too contend that Question (a) should be answered in the affirmative, but they also make a submission in the alternative to which I shall come towards the end of these reasons. The State contends that Question (a) should be answered in the negative.
Native Title
6 What constitutes “native title” under the Act is the concern of s 223, subss (1) and (2) whereof provide as follows:
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
7 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (“Yorta Yorta”), Gleeson CJ, Gummow and Hayne JJ referred to the three paragraphs of s 223(1) as setting up three “characteristics” of the rights or interests there mentioned (214 CLR at 440 [33]-[35]):
The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law (Western Australia v Ward (2002) 213 CLR 1 at 66-67 [20]). It will be necessary to return to this characteristic.
Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have “a connection with” the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law.
Thirdly, the rights and interests in relation to land must be “recognised” by the common law of Australia ….
Their Honours said that the rights and interests referred to in s 223(1) –
… owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.
(214 CLR at 441 [37])
8 With respect to the laws and customs referred to in paras (a) and (b) of s 223(1), their Honours said (214 CLR at 443 [42]):
Nonetheless, 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.
And (214 CLR at 443 [43]):
Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
And (214 CLR at 444 [44]):
Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.
9 With respect to the quality of the relationship between the laws and customs referred to as they existed at sovereignty and the laws and customs now identified as the source of the native title claimed, their Honours said in Yorta Yorta (214 CLR at 444-445 [46]-[47]):
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.
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.
10 Their Honours referred to what they described (214 CLR at 445) as the “inextricable link between a society and its laws and customs”. They said (214 CLR at 445 [49]) that “[l]aws and customs do not exist in a vacuum”. Their Honours continued (214 CLR at 445-446 [50]):
To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.
And, a little later in their reasons (214 CLR at 446 [53]):
When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.
11 The following lengthy passage, to be found later in their Honours’ reasons, is also essential reading for any court concerned to decide a question such as Question (a) as posed in the order of 30 October 2013 in the present case (214 CLR at 456-457 [86]-[89]):
Yet again, however, it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, “traditional”' in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.
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.
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.
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.
12 I would add that, as a matter of construction, the “aboriginal peoples” referred to three times in s 223(1) are the same peoples, and must necessarily be co-extensive with the claim group which is relevant in a particular case. This follows from the requirement in para (a) that the rights and interests “are possessed … by the Aboriginal peoples”, namely, those peoples who are mentioned in the introductory passage in the subsection, and those peoples who have the connection required by para (b). Further, the Act does not recognise the notion of interests in relation to land or waters abstracted from the identification of those who are possessed of them. Absent the legitimate claim of some other group, the failure of an applicant in a particular case to establish the title which he, she or the represented group holds will mean that native title does not exist in relation to the land in question.
13 It will be noted that Questions (a) and (b) above reflect the structure of s 225(a) and (b) of the Act. Counsel for the State submitted that neither the questions nor the section imply or implies a particular sequence in the intellectual exercise which such a determination requires. Rather, they identify the elements of the determination as made, or, in the present case, of the questions as answered. In particular, it was submitted, it would be both inappropriate and artificial to attempt to determine whether native title existed in relation to particular land without at the same time considering who were the individuals or groups who or which held that title. I accept that submission. As I have indicated, rights and interests of the relevant kind must of their nature be possessed by some person, persons or group.
14 It is also important, and in the present case it is crucial, that the relevant rights and interests be possessed under the traditional laws and under the traditional customs, referred to in the definition of “native title”. That is to say, the applicants must establish what those laws and customs said, and continue to say, on the question of entitlement to such rights and interests, and bring themselves within those entitling provisions. The importance of these considerations, in the present case, lies in the fact that, at least for relevant purposes, it was filiation that grounded the transfer of interests in relation to land and waters from one generation to the next. Absent the continuous existence of a visible society some of whose members were possessed of the relevant interests, it is inevitable that the applicants, in both applications, would seek to make good their claims that they are the ones now so possessed by reference to their biological descent. The present case has become the occasion to test the viability of those claims.
The Basis of the Applicants’ Claims
15 Each of the applicant groups claims native title on the basis of their biological descent from peoples who, at and immediately after sovereignty, formed part of aboriginal society in south-east Queensland. As will appear below, an aspect of the laws and customs of that society was that presently relevant interests in land and waters were held by members of local tribal groups. That is to say, when biological descent is invoked as the basis of present entitlement – as it is in this case – those presently claiming must establish descent from members of local tribal groups who themselves held the relevant interests in land the subject of the claim. To be descended from a local tribe whose members did not hold such interests would not be sufficient, even if there were, for example, a common language or the acknowledgement of the same body of laws or the observance of the same body of customs. In practical terms, this means that the applicant groups in the present case must establish that they are descended from members of tribal groups which inhabited the claim area, or parts of it.
16 The native title group on whose behalf the Turrbal application is made is defined as follows:
Connie Isaacs and her biological descendants, being the only known descendants of the Turrbal man known as the “Duke of York”, and the only known descendants of those people who comprised the Turrbal People as at 7 February 1788.
As will appear, the Duke of York was undoubtedly the leader of a tribe, or clan, of aboriginal people who inhabited the area to the north of the lower Brisbane River. It is readily to be inferred that the situation which the early settlers observed in this regard had existed at sovereignty (although the Duke of York himself had probably not been born by then). Subject to establishing descent (and subject also, of course, to the issue of continuity), Ms Barambah’s case conforms with the conceptual model to which I referred in the previous paragraph, at least in relation to the area of land in which the Duke of York and his followers had relevant interests.
17 The position occupied by the Yugara applicants is not so clear. The native title group on whose behalf their application is made is defined as follows:
The biological and/or traditionally adopted descendants of the following people:
(i) Bilinba/Jackey (in particular Jackey Jackey/Kawae-Kawae and 3 wives Nellie, Mary and Sarah; and her brother-in-law Minnippi Rawlins)
(ii) Gairballie/Kerwalli/King Sandy (in particular his wife Naewin/Sarah)
(iii) Alexander/Sandy (Bungarr) and Paimba/Mary Ann Mitchell
(iv) John/Jack Bungaree (in particular his wife Mary Ann Sandy)
(v) Lizzie Sandy (in particular her husband William Mitchell)
(vi) Lizzie Sandy/Brown (in particular her son Billy Brown who married Topsy)
(vii) Kitty (in particular her daughter Molly and husband Ted Myers of Brisbane)
As will become apparent, there is a significant question as to the connection of these aborigines, or at least of most of them, to any land which lay within what is now the claim area. There are questions of descent in some cases, but in others the problem for the Yugara applicants is not so much the fact of descent as the relevance of descent to their claims in this case.
The Expert Witnesses
18 The subject of aboriginal society in the Brisbane area was dealt with in reports by anthropologists called by the parties. The Yugara applicants called Dr Fiona Powell, who graduated in 1968 with first class honours in anthropology and sociology, whose doctorate was awarded in 1976, whose special fields of interest are native title research, genealogical, historical and archival research, kinship systems and aboriginal history, whose areas of work experience include southern Queensland, and who has been the author of numerous reports on subjects within her area of expertise, including native title, since at least 1995. Despite the length of Dr Powell’s experience in relevant areas, it is clear from her curriculum vitae that she remains actively and regularly occupied in the provision of such reports.
19 In 2000, Dr Powell prepared a report for the FAIRA Aboriginal Corporation with respect to the connections of three indigenous families – Bell, Bonner and Sandy – to people and places in south-east Queensland, and to the Yugara language group. That report was in evidence in the present case. The Yugara applicants relied also upon two affidavits of Dr Powell affirmed in this case, one of 30 April 2012 and the other of 22 May 2012. The former was concerned substantially with answering Ms Barambah’s ancestry case (to which I shall refer in some detail below). The latter referred to the 2000 FAIRA report, and updated some details in relation to the Sandy family history. The most substantial – and, I would have to say, useful – evidentiary contribution made by Dr Powell, however, was her “Supplementary Anthropological Report” dated 3 December 2013, only eight days before she herself gave evidence and about a fortnight after the start of the trial. That dealt with a range of issues that were relevant to both major cases now before the court. I shall refer to it as required in my reasons below.
20 Ms Barambah called Dr Gaynor Macdonald, who graduated in 1981 in Social Science, whose doctorate was awarded in 1988, who is, and has since 1999 been, a senior lecturer and consultant anthropologist at the University of Sydney, whose work since 1981 has been focused within the Wiradjuri language territory and has involved research and publication primarily on contemporary aboriginal cultural and social life, with an emphasis on interpreting culture and change over time and the assessment of the extent to which traditions of aboriginal life have continued to impact on contemporary lives, who has conducted field work in diverse regions, including south-east Queensland, and who has published widely, and provided numerous research reports, in the area of her expertise.
21 Ms Barambah relied on a report dated September 2009 by Dr Macdonald titled, “The Boundaries of Turrbal-Speaking Territory: An Anthropological Assessment”, the subject of which is sufficiently indicated by that title. In June 2010, Dr Macdonald provided a further report on the subject “An Anthropological Assessment of Turrbal Connection”, which was also placed into evidence. That was a very substantial piece of work, and I shall refer to it as required below. Ms Barambah tendered a report, dated April 2011, which consisted of “Supplementary Details” with respect to Dr Macdonald’s earlier anthropological report. Dr Macdonald also provided a “Supplementary Anthropological Report” in October 2011, which was tendered by Ms Barambah. These three reports were prepared in the period when the Turrbal claim was the only relevant claim to the area now under consideration. Then, in the period subsequent to the filing of the Yugara application, Dr Macdonald affirmed an affidavit on 1 June 2012 in answer to Dr Powell’s affidavit of 30 April 2012. Finally, after the conference of the anthropologists, Dr Macdonald supplied a further supplementary report which was filed on 18 November 2013, about a week before the start of the trial.
22 The State called Dr Nancy Williams, who graduated (with distinction) from Stanford University, whose post-graduate degrees, including her doctorate, were obtained from the University of California (Berkeley), who has held a number of positions in universities and research institutions, most recently that of Associate Professor in the Department of Anthropology and Sociology at the University of Queensland, who is now an Honorary Reader in Anthropology in the School of Social Science at that university, whose field of expertise includes aboriginal systems of land tenure and resource management and has involved research with aboriginal groups over a large area of northern Australia, and who has published widely in that field.
23 Dr Williams was engaged by the State to review the reports which had been filed by the other parties and to provide her opinion upon specific questions considered relevant to the case, under the headings “the normative system of law and custom”, “the claimant groups”, “continuity” and “connection”. She did so in a report dated 8 August 2013, which was tendered by the State. Dr Williams provided a second report, also tendered by the State, dated 15 November 2013.
24 The anthropologists referred to above participated in two conferences, the first on 29 August 2013 and the second on 9-10 October 2013. They provided a report in the form of a table with three columns, one for the views of each of them. The occasions upon which they had reached a tripartite consensus were few. This was, therefore, a joint report only in the documentary sense. Nonetheless, the report has been a valuable resource for the court so far as it goes. It was placed into evidence by the State, with the agreement of the other parties.
25 The specifically historical dimension of aboriginal society in the Brisbane area was also the subject of a report by Dr Rod Fisher, a historian whose undergraduate qualification was obtained in 1962, whose master’s degree was obtained in 1970 and whose doctorate was obtained in 1974. That report was provided to the Turrbal claim group in November 2009, and was tendered by Ms Barambah. However, Dr Fisher was not available for cross-examination, in consequence of which Ms Barambah had little choice but to accede to the other parties’ redaction requests in relation to the report. As heavily redacted, the report was received into evidence without objection.
26 The Yugara applicants also called two linguists, Dr Margaret Sharpe and Dr Sylvia Haworth. Dr Sharpe is an Adjunct Senior Lecturer in Behavioural and Cognitive Studies at the University of New England, and is an expert linguist in aboriginal languages. In 2000, she wrote a “Report to FAIRA on the Linguistic Literature of the Brisbane Region”. A copy of that report is annexed to Dr Sharpe’s affidavit of 9 April 2013, which was admitted into evidence. An earlier affidavit, made on 17 April 2012, is also in evidence. In it, Dr Sharpe refers to her 2000 report, and reiterates her opinion that a single language was spoken over, and in some respects more widely than, the present claim area.
27 Dr Haworth obtained her doctorate in 1995 and is an independent researcher of aboriginal languages. In her affidavit of 18 June 2013, she reports on her examination of “almost all known language records from south-east Queensland that are in the public domain”. She expresses a conclusion about the conformity of words and expressions used in parts of south-east Queensland with those used in other parts thereof. I shall refer to her conclusions in due course below.
Aboriginal Society in the Brisbane area at Sovereignty
28 The State accepted that it should be inferred, from what we know of aboriginal life and society at and after the earliest days of white contact (in the 1820s) that, at sovereignty, the claim area was occupied by aboriginal people who were united by their acknowledgement and observance of a body of law and customs. So far as it goes, that also reflects the position taken by both applicant groups. It is also common ground that this body of law and customs would have been acknowledged and observed over a wider, probably a much wider, area.
29 The anthropologists were asked for their opinions as to the extent of the society which then existed, and specifically whether there was anything in the laws and customs which marked out the claim area as distinguishable from areas around it. Dr Williams said:
For me the most productive way to look at the area is in terms of networks of interacting groups. It’s an interactive network of groups, all of whom share the same laws and customs … from which their rights in the country were derived. … It was an area … in respect of this region which included the language groups, Wakka Wakka, Gubbi Gubbi, Yugara and the subgroups within there. … [Y]ou could see the limits of it in terms of all the people who attended the Bunya festivals. And they would have shared the same laws and customs that would have been operating through the region.
Dr Powell agreed that there was a “regional system of law and custom” which extended well beyond the claim area across the whole of what is now known as south-east Queensland. Within that region, there were “territorial groups”, each under a “headman”, but the content of the laws and customs was substantially uniform over the whole of the region. Dr Macdonald said that the people living in all of the territorial divisions potentially of present relevance were “part of a highly regionalised ceremonial and belief system”. Within such a system, there were local territories in which peoples were organised under their various headmen, but “they [were] all part of one society, one system of law and custom”. The anthropologists were agreed that, if there was something which marked out the claim area as different from the areas around, and outside, it, it was not the existence of a separate system of laws and customs.
30 For reasons which will become clear, the present case cannot be resolved by reference only to the conclusions reached in the previous paragraph. It will be necessary next to consider the local, or territorial, groupings which inferentially existed within, and surrounding, the claim area. Commencing at a high level of generality, one discriminator which was discussed extensively in the expert evidence was language.
31 The anthropologists agreed that language is an important aspect of any consideration of the composition of a pre-sovereignty indigenous society within a defined area. Usage of a common language implies both a common society, at least at a high level of identification, and a sense of attachment to the land in question. Dr Macdonald said:
So the language is not simply understood as a form of communication, which I think is what most of the discussion has been about; language is, in fact, an incredibly important form of identification regardless of whether you actually speak it or not. The land and language are one consubstantiated reality, if you like.
32 Dr Powell said:
From my experience, people who say they – who identify themselves as language owners, not necessarily users, but owners because it’s their right – they have a birth right that’s inalienable. They – it’s to own the language of their forebears. That’s what I mean when I say language groups, and they don’t necessarily have to be able to speak that language, but they have a right under Aboriginal law and custom to say that’s my language and they take their identity from it.
Asked about the relationship between the use of a language and connection to the land over which that language was used, Dr Powell said that use of a language was –
… demonstrating your ownership of a dual right to own that land … that connects you to that language country. You have a right. So, if you’re not – you have a birth right and it’s come – it’s one of the rights that have descended to you.
Dr Powell made it clear, however, that the fact that a common language was used in a known area did not, of itself, establish that everyone who used that language would have rights to land over the whole of the area. She said:
[It] will depend then … where your ancestors come from … because that’s how people take their country.
33 Dr Williams said:
Well, for a whole range of historical circumstances, some of which have only been implied, some of which have been assumed, historical changes in the context of Australian history, people have been dislocated, they’ve moved, but they still recognise that they own a language. So they may no longer be able to speak it, or maybe only a few words, but that’s their language. They own it. It’s a part of their patrimony, it’s part of what comes with the land with which they’re associated, and their ancestors have been associated.
34 In a paper written by FJ Watson entitled “Vocabularies of Four Representative Tribes of South Eastern Queensland”, published as a supplement to Vol 48 of the Journal of the Royal Geographical Society of Australasia (Queensland) in 1944, the author said:
In South East Queensland, that is, between the Pacific Ocean in the East, the Great Dividing Range in the West, the Burnett River in the North, and the Macpherson Range in the South, including Great Sandy, or Fraser’s Island and Bribie’s Island, but excluding Moreton and Stradbroke Islands, of whose people and language but little seems to have been recorded, there were but four distinct lingual divisions or tribes.
These tribes were the Kabi, Wakka, Yugarabul, and Yugumbir. The territory of the Kabi practically coincided with the basins of the Mary and Burrum Rivers, as well as those of the smaller streams that drain the Blackall Range on its eastern slope. It also included Great Sandy and Bribie’s Islands.
The Wakka tribe occupied the basins of the tributaries of the Upper Burnett River. The territory of the Yugarabul was the basins of the Brisbane and Caboolture Rivers, and that of the Yugumbir was the basins of the Logan and Albert Rivers.
The territories overlapped these areas in some places, but not to any great extent.
The names of these tribes, which were identical with the names of their individual languages, were derived from the negative word of each language, the words kabi, wakka, yugar and yugum each having the meaning of no, nothing, nowhere, etc.
….
The tribes were subdivided into locality groups, each group occupying a portion of the tribal territory which was generally recognised as its peculiar right.
Each group had a distinctive name, which, in many cases, was derived from some outstanding feature of the group’s territory, either of its geography, geology, flora or fauna.
An instance of this is the Taraubul group of the Yugarabul tribe, whose territory included the site of the City of Brisbane. This name has been rendered by historians, variously, as Turrbul, Turubul, Turrabul, and Toorbal, the difference in spelling being, no doubt, due to its peculiar pronunciation by the aborigines. The word tarau, which is common to the Yugarabul and Yugumbir tribes means stones, referring particularly to loose stones, and the name Taraubul is evidently derived from the geological nature of the Brisbane area, the formation of which is almost entirely of brittle schist.
35 Watson also prepared a map which showed the four broad “lingual divisions” to which he referred in his paper. That map is reproduced here. The “Kabi” and “Waka” divisions correspond very approximately with the “Gubbi Gubbi” and the “Wakka Wakka” language groups referred to by Dr Williams in the passage set out above (see para 29).
36 Dr Williams agreed with Watson’s map, at least as an approximation. So did Dr Macdonald, but only in the purely linguistic sense. She did not accept that the aborigines themselves, before or immediately after sovereignty, would have connected with their own territory in these terms. In particular, I understand Dr Macdonald to take issue with any proposition that would equate connection, in the native title sense, with the very large area of land marked as “Yugarabul” on Watson’s map. She stressed, quite appropriately in my view, the differences in dialect that seemingly existed within that area, and which had the capacity to indicate different centres of connection to land that might today be relevant to questions of native title. Dr Powell, too, as I understand her, was content to accept the broad outlines of Watson’s divisions, save that she had reservations about the reliability of his depiction of the Yugumbir division, a controversy which may be left for another day.
37 What Watson referred to as “the Taraubul group of the Yugarabul tribe” was a reference to the Turrbal people on whose behalf Ms Barambah makes her present application. She does, of course, contest the suggestion that this group was no more than a group within the Yugarabul division, but it is clear that Watson was referring to this group. Dr Sharpe expressed the view that Watson’s explanation of the origin of the name of the group as related in some way to the geology of the Brisbane area was most likely correct.
38 I mention next the historical writings of Constance Petrie, the daughter of Thomas Petrie who arrived as a six year-old with his parents at Moreton Bay in 1837. As a boy, he spent much time with the aborigines in that vicinity. In his adult life, he secured a property in the North Pine area, and again had extensive contact with the aborigines. He conversed with them in their own language. Based on conversations which she had had with her father, Constance Petrie contributed a series of articles about the aborigines in the Brisbane and North Pine areas which were published in The Queenslander. In 1904, these articles were collected together in a book under her name titled Tom Petrie’s Reminiscences of Early Queensland.
39 In a forenote to the book, there is set out a letter to the editor of The Queenslander by Dr Walter Roth, author of Ethnological Studies and, in 1904 at least, Chief Protector of Aboriginals in Queensland, as follows:
It is with extreme interest that I have perused the remarkable series of articles appearing in the Queenslander under the above heading, and sincerely trust that they will be subsequently reprinted. . . . The aborigines of Australia are fast dying out, and with them one of the most interesting phases in the history and development of man. Articles such as these, referring to the old Brisbane blacks, of whom I believe but one old warrior still remains, are well worth permanently recording in convenient book form – they are, all of them, clear, straight-forward statements of facts – many of which by analogy, and from early records, I have been able to confirm and verify – they show an intimate and profound knowledge of the aboriginals with whom they deal, and if only to show with what diligence they have been written, the native names are correctly, i.e. rationally spelt. Indeed, I know of no other author whose writings on the autochthonous Brisbaneites can compare with those under the initials of C.C.P. If these reminiscences are to be reprinted, I will be glad of your kindly bearing me in mind as a subscriber to the volume.
Although Petrie’s Reminiscences was the subject of some reservations on the part of the expert witnesses who gave evidence in this case, generally it was accepted as an authoritative account of the characteristics, habits and lives of the aborigines who inhabited the Brisbane area in the nineteenth century. I shall be referring to it in a number of contexts below.
40 Petrie consistently referred to a “Turrbal” language. In the first chapter of his Reminiscences, the following appears (remembering that this is in the hand of his daughter):
Queensland is a large country, and the tribes in the North differ in their languages, habits, and beliefs from the blacks about Brisbane. Father was very familiar with the Brisbane tribe (Turrbal), and several other tribes all belonging to Southern Queensland who had different languages, but the same habits, etc. The Turrbul language was spoken as far inland as Gold Creek or Moggill, as far north as North Pine, and south to the Logan, but my father could also speak to and understand any black from Ipswich, as far north as Mount Perry, or from Frazer, Bribie, Stradbroke, and Moreton Islands.
In the present case, there is a question whether the “Turrbal language” identified by Petrie was a language in its own right confined to the area to which he referred, or was a component within – perhaps a dialect of – the language spoken over the broader area identified by Watson.
41 The evidence of both of the linguists was to the effect that the same language was spoken over the whole of the claim area, and much to the south as well. Consistently with Watson, this has been referred to as the Yugara or “Yugarabul” language. In her 2000 report, Dr Sharpe said:
Firstly, the reader should note that I refer to the ‘language of the Brisbane area’ as Yagara. (The issue of what constitutes a language will be discussed below.) Yagara was the word for ‘no’ in some of the dialects of this language. Some sources call the whole language Turrubul, Turrbal, etc. This language in its various dialects was spoken in the Brisbane area, in North Stradbroke Island and southern Moreton Island, as far south on the coast as Pimpama, north and west of the Logan River, perhaps nearly to Beaudesert, in Ipswich area and down the Fassifern Valley to Boonah, and possibly as far west as Gatton.
Dr Haworth said:
My consideration of these materials found that the known lists associated with the region from the north bank of the Brisbane to the Pine River valley agree substantially, as regards vocabulary and syntax, with the lists collected from the area from the south bank of the Brisbane to the north bank of the Logan, and also from west as far as Gatton and south and west as far as Coochin Coochin station (Bell) and Hardcastle’s material, and with the material recorded from Stradbroke. They agree with those lists far more than they agree with anything else.
The linguists were prepared to accept that there were different dialects in different parts of the broad area over which this language was spoken, but they rejected the notion that the language as such differed in any part from that spoken in any other part.
42 To the extent that we may follow Watson and suppose that both language and tribe names as used by the aborigines themselves were linked to words used to denote the negative (albeit that none of the experts wanted to place too much store by this supposition), it may be noted that, in a short word list in the back of Petrie’s own book, the word for “no” is given as “Yaggaar”. Ms Barambah points out, with some justification, that there are indications that the word “baal” was sometimes used for “no” in the Moreton Bay area, but both of the linguists indicated that this was a word in use in the Sydney area, and the possibility that it had made its way to Moreton Bay overland, even as a result of usage by whites, cannot, it seems, be discounted.
43 On the basis of the evidence to which I have referred, I would accept that a single language, albeit probably involving different dialects, was spoken over a region much more extensive than the claim area. Petrie’s observation (in the passage to which I refer at para 44 below) is not inconsistent with that. Nothing turns on the name by which we may identify that language, but, if we follow the “sources” referred to by Dr Sharpe (of which, it seems Petrie himself was one) in calling the language “Turrbal” or similar, that should not imply that there was a separate language spoken by the aborigines in the claim area. As indicated above, I think that the better view is that there was not. To this extent, identifying the language as “Yugara” or similar would have at least have the advantage of implying a geographical spread of the language which recognises two relatively uncontroversial circumstances: that it differed from that spoken to the north by the Wakka Wakka and the Gubbi Gubbi peoples, and that its use extended well to the south of the claim area, broadly as indicated on Watson’s map.
44 From the very high level indications of identity provided by a common language, it is necessary to move to a consideration of the “interacting groups”, or “territorial groups” referred to by the anthropologists in the evidence mentioned in para 29 above. It is convenient to commence with Petrie’s description of such groups. In his Reminiscences, Petrie said (through his daughter Constance, whose contribution will henceforth be assumed rather than mentioned specifically each time):
Each tribe had its own boundary, which was well known, and none went to hunt, etc., on another’s property without an invitation, unless they knew they would be welcome and sent special messengers to announce their arrival. The Turrbal or Brisbane tribe owned the country as far north as North Pine, south to the Logan, and inland to Moggill Creek. This tribe all spoke the same language, but, of course, was divided up into different lots, who belonged some to North Pine, some to Brisbane, and so on. These lots had their own little boundaries. Though the land belonged to the whole tribe, the head men often spoke of it as theirs.
The outer boundaries of what Petrie here referred to as “the Turrbal or Brisbane tribe” provided at least an approximate guide for the definition of the claim area in the original Turrbal application in this proceeding.
45 It should be noted that Petrie used the term “tribe” in two senses: one to refer to the overall group of peoples who inhabited the area to which he gave approximate definition, and one to refer to the smaller groupings, eg “some to North Pine, some to Brisbane, and so on”. Petrie also noted that the North Pine tribe “formed a part” of “the old Brisbane or Turrbal tribe”. The distinction between the different senses of this term is an important one in the context of this case, and Petrie’s easy, story-telling, style is not calculated to make the discriminations which will be necessary. Subject to that qualification, one may see, in the passage set out above, a recognition of the existence of these smaller groupings and their significance as centres of identity in relation to rights and interests in land.
46 In his book published in 1983, Aboriginal Pathways in Southeast Queensland and the Richmond River, (which Dr Fisher regarded as “the most comprehensive and reliable work” on the history of aboriginal tribes, languages, boundaries and customs in south-east Queensland) JG Steele accepted Petrie’s statement of the scope of the Turrbal area. He identified five “clans” within that area (while acknowledging that other clans “no doubt inhabited the area”):
• the “Duke of York’s” clan, occupying the Brisbane metropolitan area on the north side of the river;
• the North Pine or Petrie clan;
• the Coorpooroo clan on the south bank of the Brisbane River;
• the Chepara clan of Eight Mile Plains; and
• the Yerongpan clan of Oxley Creek.
I have reproduced Steele’s map, on which are marked the locations of the five clans referred to, as well as the line marking the western boundary of the Turrbal country as he represented it. However, as stressed by the State in its submissions, this map cannot be regarded as anything more than indicative apropos Steele’s own identification of the clans. The anthropologists did not accept it as an accurate representation of the limits of the regions in which these clans existed. Subject to that reservation, the map is a convenient point of reference for a discussion of the evidence so far as it relates to the various aboriginal groups, and their leaders, who inhabited south-east Queensland in the early years after white settlement.
47 I will commence with the “Duke of York’s Clan”. Dr Fisher described the Duke of York as “the head man on the north side of the Brisbane River”.
48 According to the Australian Dictionary of Biography, Capt Foster Fyans became commandant at Moreton Bay two years after his appointment as captain of the guard on Norfolk Island, which was in early 1833. As an approximation, therefore, he may be taken to have become commandant in 1835. In September 1837, rather than return to India with his regiment, Fyans “sold out, and … sailed for Port Philip as first police magistrate of Geelong”. In 1853, by then retired and living on a property at Geelong, Fyans began what became “500 pages of instructive and entertaining recollections”. Relevant extracts of those recollections are in the evidence.
49 According to one entry in those recollections, there was a day at the Moreton Bay settlement on which “the tribe of natives came in”. As it happened, a group of Quakers were visiting at the time, and they were introduced to the natives. The latter consisted of a group of “fifty males, chiefly boys and young men”. They were led by the Duke of York, whom Fyans described as “the great chief of the now Brisbane tribe”. The “now” part of this extract reflects the circumstance, I would infer, that the area in question was not known as “Brisbane” at the time, but was by the time that Fyans came to write down his recollections in the period following 1853. Fyans proceeded to describe the Duke of York as “aged about forty years; … a stout-looking old fellow; … the elder of the tribe, but the remains of a fine old man.” No party suggested that Fyans was mistaken in what he said, from which it is safe to say that, in the mid-1830s and thereabouts, there was a tribe of natives in what we now know as the Brisbane area, and that they were under the leadership of a man known to the whites as the Duke of York.
50 The Duke of York was referred to in a report, published in The Colonial Observer, of an expedition to the north by two missionaries from a German Mission in August 1841. As will be evident from events at York’s Hollow in late 1846, the Duke of York was still about in the Moreton Bay area at that time. Then, in June 1853, the Moreton Bay Courier published a mistaken, premature, obituary of him in which it described him as “a well known Brisbane black” (for which mistake the Courier later published an apology).
51 There is, therefore, a reliable record of the existence of this aboriginal leader over a period of about 20 years from the 1830s to the 1850s. Curiously, he is not mentioned by name in Petrie’s Reminiscences, notwithstanding that Petrie must, for reasons to which I shall refer below, have known who he was. Regarding the extent of the territory over which he was the acknowledged leader, there is nothing in the evidence that would permit me to go beyond Dr Fisher’s assessment that this was to the north side of the Brisbane River, roughly as indicated by Steele. I understand that Fisher was here referring to the lower Brisbane River, or what Steele equated with what is now the metropolitan area on that side of the river.
52 The North Pine clan referred to by Steele is mentioned frequently by Petrie in his Reminiscences. It will be noted that Steele gives this clan an alternative name, the “Petrie clan”, doubtless because it was the area in which Petrie settled as a young man and thereafter spent the rest of his life. At about 28 years of age (ie in about 1859), Petrie was advised to take up land for cattle. He knew an aboriginal, then about 60 years of age, called Dalaipi, whom he described as “the head man of the North Pine tribe”. Dalaipi told Petrie that he should take his (Dalaipi’s) son Dal-ngang with him for the purpose of identifying suitable land, and “any you pick on I will give you…. When you make up your mind to settle, I will go with you, and protect you and your cattle, or any one belonging to you.” (Petrie quoting Dalaipi) Petrie said that Dalaipi often came to Brisbane (indeed, as a boy, Petrie played with his son), but it is evident that he had leadership over a clan, or tribe, in the North Pine area which was separate from that of the Duke of York and which involved interests in relation to land. According to Petrie’s Reminiscences, Dalaipi was as good as his word: Petrie’s property and his stock were always protected, and never subjected to raids or the like by the aborigines of the area.
53 With respect to the area south of the Brisbane River, the evidence does not clearly demonstrate the existence of the three clans demarked by Steele. There are indications that the Chepara clan was an entity of much wider significance than Steele’s map implies. A source quoted by Dr Powell in her supplementary report had it as follows:
The ‘Chepara’ was the head clan. Its district was to the south of Brisbane inland and chiefly coast – It was the clan from which all the clans derived their common name as a tribe.
And:
The principal clan, and gave its name to the whole tribe. Its country was to the south of Brisbane, somewhat inland, but also along the coast. … The names of the clans were derived from local associations, as, for instance, Chepara means the coast … The Chepara was, so tradition says, originally the whole tribe, but in consequence of internal feuds it became broken into the clans mentioned. This however seems, notwithstanding the positive assertions of the Chepara informants, to require some corroboration, which cannot now be given. The oldest of the native informants, a man of about fifty years of age in the year 1880, spoke with certainty of this tradition, and said that after a time the clans became again friendly, and had during the whole of his lifetime considered the Chepara the principal clan.
54 In App B to her supplementary report, Dr Powell reproduced an undated map which she placed in the early 1880s. She said that it showed the “Chepara” clan’s country as extending along the coast from Caboolture River to Point Danger, and (in Dr Powell’s words) “inland to encompass the Logan and Albert catchments and the middle and lower reaches of the Brisbane catchment”. It seems that the informant referred to in the extract above was an aboriginal man of about 50 years of age in 1880. He said that Chepara was the principal clan, and that the area was made up of subordinate clans which Dr Powell identified (doing the best she could in the cases of some records which were only in handwriting) as follows:
• Chepara (discussed above);
• Mungulkabultu [Uulgunkabultu] in the Pimpana [Pimpama] district;
• Munnadali [Uunnadali], about the sources of the Albert River [head of Albert River];
• Kuttibul, about the sources of the Logan River [head of Logan river];
• Yungurpan, in the Coomera and Merang [Nerang] districts;
• Birrin at the Tweed River;
• Burginmeri, in the Cleveland district; and
• Chermanpura, the district along the coast [coast district].
55 There is nothing else in the evidence to suggest that the Chepara clan extended as far north as Caboolture River, but it is possible that the distinction between a clan as such and a “head clan”, or “tribe”, might be relevant to that question. What is of interest for present purposes, however, is the circumstance, which appears tolerably clearly from all of the evidence, that, at least as an approximation, the area south of the Brisbane River was distinct from the area to the north under the Duke of York.
56 A significant aboriginal leader to the south of the river, was the man called Mulroben, a contemporary of the Duke of York. He had what Dr Powell described as “a huge area”, also extending to the west as far as Ipswich. Subject to Dr Powell’s expansive opinion, it seems tolerably clear that Mulroben’s clan was that described by Steele as the Coorpooroo Clan.
57 A correspondent to the Jubilee Number of The Queenslander, 7 August 1909, apparently speaking from his own recollection as a young man, spoke of the situation 60 years previously as follows:
Among the South Brisbane tribe of aboriginals were many quaint personalities: one tribe was up to fully 400 strong. They were then healthy and in the full possession of their native agility, prowess, and arts. Their head man, or fighting chief, was “Molrubin”; his dusky queen was called “Gulpin”. He was killed treacherously in a family feud.
Consistently, a correspondent to the Colonial Times and Tasmanian, writing on 18 May 1850, mentioned “Molrooben, a celebrated chieftain, whose hunting grounds extended from the Dividing Range to the Logan River”. (Of some interest on the question of the interactions between clans in the Brisbane area is this correspondent’s description of a “great fight” which took place between the coastal tribes and the mountain tribes. The former were led in the fight by the leader of the Amity Point tribe, EulopÈ, who had three seconds, including the Duke of York and “Molrooben”.)
58 With respect to the “Yerongpan” clan, Dr Powell referred to a word list compiled by Archibald Meston, the Southern Protector of Aboriginals for Queensland from 1898 to 1903, most probably on information provided by an aborigine called Yoocum Billy (or “Lumpy Billy”), whom Meston first met in 1870. On that list, “Yeerompan” was a reference to Browns Plains. Steele considered Meston’s Yeerompan to be the same clan (as he called it) as the “Yerongpan tribe” the subject of a paper presented by a Dr Joseph Lauterer to a meeting of the Royal Society of Queensland on 19 March 1891. The title of the paper was the “Yaggara dialect, spoken in the ‘sandy country’ (Yerongpan) between Brisbane and Ipswich”. The imprecision of these indications is, if anything, exacerbated by the terms of a letter by Meston’s son LA Meston to the Courier Mail published on 14 November 1935 (referred to by Dr Powell in her supplementary report):
The Yerong-pan tribe, whose territory was on the sandy country between Brisbane and Ipswich, and included Eight Mile and Brown’s Plains and Yeerongpilly, gave us Yeronga or Yarunga, meaning ‘sandy’ and Yeerongpilly, meaning ‘a sandy creek or gully.’
However indicative, and approximate, Steele’s map may be, it is difficult to advance any interpretation of it that would have Eight Mile Plains and Yeerongpilly in the territory of the Yerongpan clan. LA Meston’s letter was concerned substantially with language, as distinct from territory or tribal regions, and I would place little store by the passage extracted from it above, particularly having regard to the derivative character of the information on which it was based.
59 Making allowances for the difficulties facing the parties in establishing the nature, and placement, of the tribal divisions which inferentially characterised the claim area at and after sovereignty, I consider that the following findings might be made on the probabilities. I shall use the word “clan” as the relevant descriptor, not only because Steele did so, but because, as will become clear presently, Ms Isaacs herself used the word. The five clans identified by Steele were distinct from each other. The geographic lines of demarcation between them were not precise and, especially further south, cannot be known even to an approximation at this substantial remove in point of time, but distinct clans there were. The fairly extensive historical references to the “leaders” of at least three of these clans – North Pine, Duke of York and Coorpooroo – is consistent with no other conclusion. There were, I would find, the “interacting groups” to which Dr Williams referred in the passage set out at para 29 above, or the “territorial groups” under “headmen” referred to there by Dr Powell and Dr Macdonald.
60 It is uncontroversial that the clan regions just discussed would have shared the same laws and customs. What did those laws and customs have to say on the subject of rights and interests in relation to land and waters? In addressing that question, it will not be necessary to separate out, or to give specific attention to, the content of the rights and interests which presumptively then existed, for example, the right to be present on land, to cross over land, to hunt or fish on land, to harvest the fruits of trees and bushes on land, and the like. For reasons which will become clear, the present case is susceptible of resolution at a higher level than would involve an examination of these rights and the differences between them.
61 Rather, the critical issues in the case are, first, what was the nature of the connection with particular land that would give rise to rights and interests in it, and secondly, by what principle, rule or custom would such rights and interests be possessed by people coming later in time who may not have been part of the original community when it was in direct occupation of the lands in the traditional way. In other words, who originally possessed these rights and interests, and who were their successors in future generations?
62 As to the first issue, in the State’s closing written submissions it was contended that “rights in relation to land were not conferred generally across the whole of the language territory – rather, differential rights were held amongst local groups, and within local groups”. In a footnote, the evidence relied on for this contention was three pages in Dr Macdonald’s report of June 2010. For my own part, I cannot see the issue either clearly presented or clearly resolved in those pages, and the State’s oral submissions contained no relevant elaboration. Dr Macdonald was concerned to discuss the quality and content of the norms which related to land rights and interests, but, other than in relation to specific cultural rights, the identification of those who would enjoy them was assumed rather than articulated.
63 More directly on point was Dr Macdonald’s report of September 2009, which was concerned principally with the boundaries of Turrbal-speaking territory. Although presenting her analysis in the framework of her conclusion that the Turrbal-speaking people were part of a “Riverine cultural bloc” (which was not accepted by the other anthropologists), Dr Macdonald dealt in some detail with the attributes of what she called “local territories”. Such a territory was recognisable as being under the control of a “headman”. Dr Macdonald said:
There is a consistent picture in the literature of each local group having a clearly bounded territory within which economic activities were pursued and others had to ask permission to enter and, if staying, would be told where they could hunt. This territory is understood economically and politically, as a hunting and gathering territory over which particular people had rights. Within it are an individual’s sites.
And:
The headman had the right to exclude people, although would rarely do so. However, it was imperative that he be asked permission to enter, camp, forage or even pass through. It was this respectful recognition that affirmed his authority.
If a small company sought and obtained permission to travel through another tribal territory, they must of course not hunt for food while so passing through, and as evidence of their bona-fide that must keep very strictly in a straight line behind each other. Such a party would consist of only six, possibly ten, men (Langevad 1982:29).
Of course, such a group could also ask for permission to hunt. But not to ask a headman for permission was tantamount to a denial of his rights over the territory (cf. Myers 1982). Someone disregarding such fundamental etiquette did so at their own risk as it would be assumed they had dangerous intentions. Trespassers could be put to death in some cases and in all cases a fight would result. These local dialect areas therefore corresponded with economic and political rights. Only those identified as having primary rights (senior owners/custodians) had the right to extend usufractory rights to visitors. There would be people identified with other territories, such as spouses and in-laws, who were resident and had the daily rights of residents, but did not have the right to grant permissions. They too had to defer to those with the right to call themselves by the name of that territory.
Dr Macdonald was not challenged on these views.
64 On this subject, Dr Powell said:
[I]t is my understanding that each territorial group indeed did have a headman who handled matters within the area of each group. But there was an overarching organisation connected with the religious system, and the list [sic] was paramount … over all the groups. … [Y]ou could become like a local group, a territorial group headman, and then according to what I’ve read, you’ve got other men to help you and you formed a council of senior men who handled matters within the territory your group was associated with. But on top of that uniting all these different territories there was what was called the bora – in the literature the bora council, and they could – if one of these headmen wasn’t up to scratch, so to speak, they could have him removed.
However, with respect to the rights of people who were associated with a particular local territory to enter upon, and to exploit, land within another local territory, Dr Powell was more guarded:
I don’t have the information to say that. … I really don’t know. Moreover, Petrie does say that all these groups were linked to each other through intermarriages, so that – and that people quite happily moved from one area to another and were – were friends and hunted and gathered and did things together. So … I would hesitate to say that somebody who we might think is with the Chepara in that area had no rights and interests, say, up at the North Pine which was the Duke of York’s. We don’t – I don’t know.
65 The passage from Petrie’s Reminiscences set out in para 44 above is not free of ambiguity on this subject, in the sense that it is not clear whether the “tribe” first referred to was to be understood as the whole Turrbal tribe as Petrie described it, or as each of the local tribes which he mentioned elsewhere in the book (North Pine, Brisbane, etc). I think that the latter is the more natural sense of this passage, but because of the easy conversational style in which this information is rendered, and Petrie’s evident lack of concern with the distinction now under consideration, it would be unwise to place too much store by it. Dr Powell agreed in the interpretation proffered by counsel for the State, namely, that Petrie was “talking about an overall tribe and then, within that, … the smaller groups” but, for my own part, I confess to an inability to appreciate which interpretation Dr Powell was being asked to favour.
66 In this state of the evidence, I find on the probabilities that rights and interests in relation to land and waters were possessed by reference to membership of each local group, under the leadership of a particular headman, or what Steele would call a “clan”. Dr Macdonald was clear in her evidence that such rights and interests were not enjoyed more widely. Dr Williams, as I read her evidence, was substantially of the same opinion. Dr Powell was able to put it no higher than that she did not know. In concrete terms, this means, for example, that rights and interests in relation to land and waters immediately to the north of the lower Brisbane River were possessed by members of the Duke of York’s clan, that rights and interests in relation to land and waters to the south of the river were possessed by members of the Coorpooroo clan, and so on. Interestingly, this perspective has the strong support of evidence given by Ms Isaacs herself. In a statement attached to her affidavit of 20 January 2006, she said that, within the various tribes that existed years ago, there were “particular clanlands”. Special permission had to be sought from the relevant clan and tribal authorities to enter into their territories. She continued: “Clan rights of clan areas are stronger than the tribes”. Expressed in the lexicon of native title, what Ms Isaacs was here saying, in my reading of it, was that rights and interests in relation to land and waters were specific to the members of the clan which occupied, or had the relevant connection with, that land and those waters.
67 For example, a member of the Coorpooroo clan would not have rights or interests in relation to the land and waters occupied by the Duke of York’s clan. Any suggestion that rights and interests in relation to land and waters within the claim area were held by people whose only connection with that area was that they spoke a common language, or that they acknowledged common laws or observed common customs, must be rejected.
68 As to the second issue, it seems clear that the intergenerational rule of succession to rights and interests in land was filiation. Dr Powell and Dr Williams took the view that patrifiliation was the rule, while Dr Macdonald considered that “filiation (patrifiliation and matrifiliation) was the primary and non-negotiable way in which proprietary rights to country were acquired and transmitted.” I do not need to proceed henceforth on the footing that filiation was the inflexible rule. There may, it seems have been other ways to acquire rights and interests in land, such as marriage and the adoption of an erstwhile outsider into the tribe or community in question, but these special cases do not need to be considered here.
69 In her 2010 report, Dr Macdonald in particular stressed the importance of descent by blood in the transmission and acquisition of rights and interests of the kind presently of concern. She said:
Filiation was the ascribed and non-negotiable foundation for the acquisition of rights in a specific territory. No one could claim Turrbal, Gabi Gabi or any other territorially-based (spatial) identity except where it was known that his or her parent made such a claim and was accorded the right to do so. A filial relationship established a person’s right to identity as ‘Turrbal’ and thus the right to be known as a member of the Turrbal land-owning group.
By “filiation”, Dr Macdonald meant “rights obtained by virtue of birth to a father and/or mother who themselves hold such rights”. She distinguished between “filiation” and “descent” in the following terms:
Filiation required only the active identification with rights held by one parent. The filial relationship required no verification because one’s parent’s claims to Turrbal identity would already have been recognised/legitimised by both Turrbal and non-Turrbal kin. Most people would have known their grandparents, and know that at least one of them also claimed the same right, and was recognised as having done so, hence the right of the parent to do so. Beyond grandparents are the ‘ancestors’ from whom such rights descended. Identifying specific ancestors beyond grandparents was not culturally important.
However:
If the rule of filiation has been applied in every generation, it can be expected that a person will be able to trace filial relations in each generation to an ‘apical ancestor’. However, it is not customary that this knowledge is retained and to do so, most people today would be required to rely upon written records [of uneven quality] in order to test the application of the law of filiation over time.
I have referred to Dr Macdonald’s views particularly on this subject since, as will be seen, it represents a crucial aspect of the Turrbal case.
70 In the life of an existing, vibrant, aboriginal tribe or community, it may have been sufficient, for an interest in land to arise, for that interest to have been held by one’s parent. It may not, in Dr Macdonald’s words, have been necessary “to test the application of the law of filiation over time”. But this is a court proceeding held many decades after the disappearance of such tribes and communities in the claim area – a matter dealt with in the next section of these reasons. To know whether, over that period, the rule of filiation has been at work transferring rights and interests in land and water from one generation to the next, it will be necessary, as it seems to me, to look at what Dr Macdonald refers to as descent. This was the unambiguous premise by reference to which both applicant groups conducted their cases.
71 The other dimension of the content of traditional laws and customs in relation to rights and interests in land that must be considered is how those laws and customs dealt with land that had been depopulated. Such land is sometimes referred to as “orphaned country”, but the anthropologists in the present case were agreed that this was “a problematic concept”. In their joint report, they said:
… Aboriginal people don’t see country as orphaned. Land may be de-populated but this does not render country without ownership.
Ownership was assumed to be transmitted through filiation. Where this was no longer possible, other principles came into play, such as those arising from kinship and propinquity.
Aside from “kinship and propinquity” – which, because of the specific ways in which both claim groups define themselves, do not need to be considered in the present case – this passage keeps our focus on filiation, regardless of whether the various generation-to-generation holders of the rights and interests in question were actually inhabiting the claim area.
Continuity of Society
72 There seems no doubt but that the aboriginal tribes which occupied the claim area at the time of first white settlement had been displaced – either by whites or by other aborigines – by about the end of the nineteenth century at the latest. Indeed, on the probabilities, this had happened by, say, the end of the 1850s. Although the redactions in Dr Fisher’s report compromise to an extent its utility in this regard, the sense of his conclusion is clear enough:
My interpretation of this evidence is that, as white settlement expanded, the [redacted] people were increasingly repressed and excluded by whites and blacks alike. The Duke of York’s group was driven from their Yorks Hollow camping-ground by the early 1850s, followed by other [redacted] groups later in the decade. The early pastoralists aided by the Native Police force (est. 1848) were largely responsible in rural areas, including the Sandgate, Pine River and Logan districts, as well as the Fassifern [redacted] valleys further afield.
73 Dr Fisher wrote that, before “European settlement”, the aboriginal population in the area bounded by the Pine River, the Dividing Range and the Logan River was about 5,000. By 1861, this had fallen to 2,000. Of the Brisbane tribe itself, Dr Fisher wrote:
At the Native Police inquiry in 1861, businessman Capt. Richard Coley testified regarding ‘the Brisbane tribe’, which numbered about 250 in 1842: ‘They are all gone since then – they are all extinct’. At the same time Magistrate Richard B. Sheridan of Maryborough, who took a great interest in Aboriginal affairs, attested that ‘I have not seen one of the North Brisbane tribe since my arrival here this time’.
Turning to the [redacted] people as a whole, Tom Petrie testified in 1861 that the old Brisbane tribes ‘are nearly all dead now: there are only about five of them left’. Other less informed witnesses said likewise. By 1901, Petrie knew of ‘one or two old men being left alive’. By this he meant members of ‘the old original tribe who camped at North Brisbane, and who were boys when I was a boy’.
By the time that Petrie gave his daughter the benefit of his recollections, he was aware of only one of “the old Brisbane or Turrbal tribe, of which the North Pine formed a part” who was still alive.
74 In her report of November 2013, Dr Macdonald said that, by the end of the nineteenth century, “people living within Turrbal language-territory had suffered a massive population decline”. Even as at the 1850s, Dr Macdonald accepted that, “[e]verybody was driven out of what became central Brisbane”.
75 In her report of 8 August 2013, Dr Williams expressed the opinion that the material that had to that date been filed in this proceeding by the applicants did not demonstrate that the normative system of law and custom which inferentially existed in the claim area at and immediately after sovereignty had continued, substantially uninterrupted, down to the present time. She opined that the claim that there was a substantially uninterrupted history of the acknowledgement and observance of the original laws and customs was “difficult to perceive and … [could] not be accepted”. In the concurrent evidence session, the other anthropologists were invited to comment upon this conclusion by Dr Williams.
76 Dr Macdonald did not agree with Dr Williams. Doing the best I can with the very substantial amount of written evidence which was tendered over her name, and with the rather discursive evidence which she gave in the anthropologists’ joint session, I would say that Dr Macdonald approached the problem from three perspectives: first, some very high-level, conceptual, opinions as to the nature of aboriginal laws and customs, and what held people together in their acknowledgement and observance of them; secondly, her response to the proposition – which, in point of fact, she appeared to accept – that the original inhabitants of what we now know as the area around Brisbane had been displaced by about the 1850s; and thirdly, her thesis as to the means by which the Turrbal people specifically, as understood by Ms Barambah and her family, continued to acknowledge the relevant laws and to observe the relevant customs.
77 Dr Macdonald’s first (conceptual) perspective was most clearly articulated in evidence which she gave under cross-examination by counsel for the State. In a few lines here, I could not do justice to this perspective, but the following response to counsel’s question, early in this part of the evidence, whether she could point to anything that provided a basis for a conclusion about continuity in laws and customs since, say, the turn of the century (ie nineteenth to twentieth) was indicative of her approach:
I think we have to, obviously, identify what kinds of continuities would – are relevant to this particular context. The issue of identity, I believe, you – you raised before, but I’m – I’m not as interested in identity per se, because it’s – that’s a relational concept. You know, Aboriginal identity in native title is being constructed in relation to, you know, an Australian legal system. That’s not what I call law and custom. The fundamentals of – that I would look for to see whether aboriginal people are living a – a culture life in which I understand there to be a continuity of law and custom – which is an awkward kind of phrase that we – we’re kind of living with because of native title. How do they think about themselves as people? What kind of value system do they have? Do they – have they become the individuals of a western world, or are they still very much framed in terms of the social selves that have – of an intense kinship world. And kinship is not simply just structures, like moieties and sections and things like that. It’s a very different way of understanding who you are as a person in the world. And it’s not one that I live, except as I come to learn it, over many years, within Aboriginal communities. So kinship is also an experience of the world. I would look to see whether those Aboriginal people understood themselves in terms of an Aboriginal moral order, which has to do with expressions they use, such as “caring”, “looking after”.
While not depreciating the importance of these patterns of identity, values and understandings to the people who sense them and live by them, what Dr Macdonald was referring to is not recognisable as a normative system of laws and customs as explained in Yorta Yorta.
78 Dr Macdonald’s response to the reality that the Brisbane aborigines had been displaced by about the 1850s was constructed around the proposition that the geographical region over which a common system of laws and customs existed was not confined to the claim area. To the extent that Dr Macdonald was here making a statement about the situation at and immediately after sovereignty, I would accept what she says (but I would not accept, and the other anthropologists did not accept, that such a region was referable to the “Riverine Cultural Bloc” upon the foundation of which much of Dr Macdonald’s evidence was built). But to recognise that circumstance does not deal with the problem of continuity. In the first place, expanding the scope of the inquiry as proposed by Dr Macdonald does not disclose any more satisfactory evidence of continuity in the acknowledgement of laws and the observance of customs than appears with respect to the claim area itself. In the second place, ultimately, the present inquiry is concerned with what such a system of laws and customs would say about rights and interests in relation to land and waters in the claim area. If, as I would hold to be the case, aboriginal practices and observances within the claim area were not such as would bespeak the continued existence of a system of that kind, the prospect that such practices and observances elsewhere would do so must be regarded as an unlikely one.
79 In her evidence, Dr Macdonald said, “to be driven out of your country doesn’t stop you owning it, in Aboriginal terms”. In terms, so much may be accepted. As pointed out by the State, there is, in native title law, a distinction between the continued acknowledgement of laws and observance of customs which recognise rights and interests in relation to land, on the one hand, and the physical presence of those entitled to the rights and interests, on the other hand. But it remains the fact that, save arguably for some suggestion of practices at the Cherbourg Settlement on the part of Ms Isaacs, there is no evidence that, despite the physical displacement of the original inhabitants of the claim area, their descendants continued to acknowledge the laws and to observe the customs which gave rise to rights and interests in relation to the land and waters from which those inhabitants had been displaced. The following observation by the Full Court in Risk v Northern Territory (2007) 240 ALR 75, 101 [104] is directly applicable to the circumstances of the present case:
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. This is, in effect, what has happened to Larrakia in this case. 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.
80 Dr Macdonald next posited that, although the Duke of York’s clan may indeed have been driven out of the Brisbane area, others came to take their place. There was, she said, evidence of aboriginal presence in that area well after the middle of the nineteenth century. But the present inquiry is concerned with something larger, and more meaningful, than the presence of aborigines in an area. That aboriginal people were to be found in the Brisbane area over much of the period under investigation (but more so in the nineteenth century than subsequently) seems uncontroversial, but this is not the same as saying that these people continued, without substantial interruption, to acknowledge and to observe the laws and customs that prevailed in the area at sovereignty. If it was intended by Dr Macdonald to propose that there was continuity in this sense, the evidence falls, in my view, well short of the mark. In her 2010 report, Dr Macdonald makes it clear that, for the most part, she relies upon Dr Fisher for the historical basis of her anthropological opinions: “My focus here is not to replicate the historical study conducted of Turrbal history by Fisher (2009)”. Given the importance of that source, it is unfortunate, and it must be said unsatisfactory, that many of Dr Macdonald’s cross-references to Dr Fisher’s report were wrong and therefore of no use to the court. It is also unfortunate that Dr Fisher was not present to be cross-examined, since the heavily redacted form of his report has compromised its utility in a number of important areas. Subject to those limitations, I would say that the only indications of an aboriginal presence in the Brisbane area in the late nineteenth century were isolated ones from which no inference of the existence, much less of the vitality, of a society in the Yorta Yorta sense could safely be drawn. In Dr Fisher’s report, I could see no such indications since at least about the middle of the nineteenth century.
81 Finally in this part of her evidence, Dr Macdonald pointed to the existence of aborigines, including, possibly, direct descendants of the Duke of York’s clan, in parts of the claim area other than central Brisbane, such as Enoggera Creek. This, however, was not the subject of anything more than isolated references in the evidence. Neither applicant group undertook any systematic examination of the extent to which, and of the areas in which, aboriginal peoples continued to acknowledge the laws and to observe the customs which characterised their society at sovereignty. That is not to say, of course, that there did not continue to be places, within the claim area, where aboriginals were observed to be living in what appeared to be traditional ways. But the evidence of this is unsystematic and fragmentary. Dr Fisher said:
The historical evidence also shows me that the [redacted] people were not only divided originally into small groups but also driven increasingly from their traditional territory by whites and blacks alike from the 1850s onwards; drink, disease and death as well as dispossession caused their numbers to plummet within the increasingly settled claim area.
Despite continual statements from the 1860s onwards that the [redacted] people were practically extinct, my opinion based on other sources is that remnants were increasingly scattered within and beyond the bounds of settlement where they melted into the countryside and were later removed to institutions including homes, missions and reserves.
This is not, in my view, a picture from which the continued acknowledgement and observance, without substantial interruption, of a body of laws and customs could be inferred.
82 That brings me to the lower level issues of how the people from whom Ms Barambah herself claims to be descended continued to acknowledge the laws, and to observe the customs, that characterised society in the claim area at sovereignty, and of whether the facts in relevant respects disclose the continuation of a society defined by reference to those laws and customs in the Yorta Yorta sense.
83 The Turrbal case involved the proposition that, after the original inhabitants had been displaced from their lands in the claim area, they migrated inland and northwards, ultimately to secure employment on settlers’ properties in such areas as the Mary River Valley, while maintaining their tribal cohesiveness and, inferentially, continuing to acknowledge and to observe their traditional laws and customs. Then, with the commencement of the Aboriginals Protection and Restriction of the Sale of Opium Act on 1 January 1898, they were removed to settlements, most relevantly for the Turrbal case, that originally known as Barambah, and later re-named Cherbourg. That is where the family into which Ms Isaacs was born in 1920 found themselves. They, and Ms Isaacs after them, continued to acknowledge and to observe those laws and customs. In this sense their country, the claim area, remained the real concern of those laws and customs, which provided the normative system which governed, amongst other things, rights and interests in relation to land and waters. It did so notwithstanding the physical absence of the people concerned. This was the Turrbal case.
84 Even allowing for a degree of generosity in recognition of the difficulties associated with proving events which occurred long before the lifetime of any witness, and in relation to which even anthropologists and historians need to proceed by way of inference, the factual basis of the Turrbal case as outlined above does not, in important respects, rise above surmise. In particular, the thesis that it was the displaced tribe of the Brisbane area that constituted the indigenous population (or an important part of the population) of the Mary River valley in the second half of the nineteenth century is no more than a matter of conjecture. At this point Dr Fisher’s report is, with respect, insubstantial, although I allow for the possibility that an unredacted version of it might be more convincing. The primary materials to which Dr Fisher refers have, for the most part, been put before the court in support of the Turrbal ancestry case, and I shall refer to them below. The report, however, begs a number of important questions as to the links between the original inhabitants of the Brisbane area and those who, in the late nineteenth century, were working on stations in the Mary Valley and thereabouts. As tendered, I do not see in the report any reasoned conclusion to the effect of the thesis referred to here.
85 From about the first decade of the twentieth century, the Turrbal continuity thesis focusses upon practices at the Barambah (Cherbourg) Settlement. Amongst other places, it found expression in the following extract from Dr Macdonald’s November 2013 report:
The most significant evidence of the continuity of landed identity that people transferred with them to Barambah-Cherbourg was that they always camped as they did when travelling for ceremony, fighting or any other reason: in the direction of their own language-territory. Thus, if they were from the north east of Queensland, they camped in the north east of Cherbourg. Even when ‘remnant’ tribes throughout Queensland were removed to Barambah Aboriginal Settlement, they continued to camp in traditional groups. This is easily seen in the maps of [sic] produced by Blake (2001:202,204) for the 1910s and 1920s. It was also commented on by others at various periods through the Reserve’s history, for instance, Kelly (1935), Koepping (1976), and O’Sullivan (1985, 1986). The small number of Turrbal people meant that they were socially absorbed with Gabi Gabi and Wakka Wakka, camped in the ‘Wakka Wakka’ camp to the southeast.
To the extent that this extract is to be understood as proposing that the sources referred to in it disclosed the existence of a “small number of Turrbal people” – ie identified as such – at Cherbourg, it was wrong. As the discussion below demonstrates, none of the sources provides any justification for the proposition that there were, at Cherbourg, aboriginal people who identified as Turrbal.
86 The source referred to as “Blake (2001…)” was the book by Thom Blake, A Dumping Ground: A History of the Cherbourg Settlement, 2001, University of Queensland Press. The maps referred to depict the layout of the then Barambah Settlement in the 1910s and the 1920s respectively. Areas in which the aboriginal residents camped are shown in these maps, and it is true that they are shown as having done so by reference to traditional groups. But no group named as Turrbal, or otherwise having an apparent connection with the claim area, is shown. Further, I cannot see, in these maps, anything more than an indication that residents of Cherbourg camped in traditional groups. I cannot see, and Blake does not draw attention to, any apparent practice of siting camps “in the direction of their own language-territory”.
87 The source referred to as “Kelly (1935)” was the article, “Tribes on Cherbourg Settlement, Queensland”, Oceania, Vol.5, No.4, 461 (1935). The author, the anthropologist Caroline Tennant Kelly, had spent four months on the settlement at Cherbourg in 1934. Of the people amongst whom she worked on the settlement, she said:
These people are gathered in from all parts of Queensland, principally from those areas where tribal life has been broken up through the coming of the white settler. I was fortunate in finding many old people to whom the past was more real than the present with its disintegration of native social life. It is to these people I am indebted for the material which has enabled me at this eleventh hour to form some idea of the ritual and social life which obtained before the breakdown of their culture.
Kelly’s investigations were limited to the tribes on the settlement who came from an area bounded by an imaginary line drawn from Bowen to Cloncurry, thence to Thargomindah and across to Brisbane. She named these 28 tribes. Turrbal was not amongst them. On her map, none of the tribes was placed within what is before the court as the claim area. The closest was a tribe with a double-barrelled name, “Dunkubura and Dunkidjow”, the location of which appears to have been in the upper Brisbane River area around Moore and Kilcoy. The tribal designations “Waka Waka” and “Kabi Kabi” are placed on the map in areas that would make approximate sense to the parties in this case.
88 In the concurrent evidence session, it was put to Dr Macdonald that Kelly had not “come across anyone in Cherbourg who was identifying as Turrbal from Brisbane”. Dr Macdonald’s response was:
There was no group of people at that time in Cherbourg identifying as Turrbal because there weren’t that many people. The Turrbal people we know to have been on Cherbourg were camped in the southeast corner with Wakka and Gubbi people, and they were much more significant populations. You know, the Turrbal people who – who survived and have continued to be taught that they had country in – you know, in Brisbane, as it were – people such as Connie Isaacs herself – were part of that Wakka Gubbi section.
On Ms Barambah’s case, the only known survivor of the Turrbal people of the Brisbane area, in 1934, was her mother, then a 14 year-old girl. Dr Macdonald’s tendentious use of the expression “people such as Connie Isaacs herself” must, therefore, be approached with some reserve.
89 So far as I can see, Kelly said nothing in her article about the significance of the orientation of the sites on which residents camped at Cherbourg.
90 The source referred to as “Koepping (1976)” was an article by P Koepping, “How to remain human in an asylum: Some field notes from Cherbourg aboriginal settlement in Queensland” published in Anthropology Museum Occasional Papers, University of Queensland, 6:28-47. There is nothing in the article which deals in any way with the camp siting patterns which were believed to exist at Cherbourg. Interestingly, the author presents a map, somewhat similar to Kelly’s, of the tribal connections of those who were residents at the settlement at the time of writing (1976). Again, Turrbal is not mentioned. Indeed, there is no tribe shown between Badjala immediately to the south of Maryborough and Yugumbi in the area near Southport.
91 The sources referred to as “O’Sullivan (1985, 1986)” were two articles by Sr Delores O’Sullivan, “The Cherbourg Tribe: some of their beliefs” Nelen Yubu 24: 10-17 and “The Cherbourg Tribe: some of their ceremonies and customs” Nelen Yubu 27: 3-12 respectively. I cannot see, in those articles, any reference to the aboriginals at Cherbourg having camped in traditional groups.
92 It is apparent from Blake (although his sources are secondary ones) that:
The Wakka Wakka were indisputably the premier group on the settlement. They were not only the largest mob on the settlement but, significantly, the settlement was situated on their traditional territory. Therefore they were accorded a special status as the “owners” of the settlement.
(Blake, pp 203-205). Dr Macdonald’s supposition that there were, within this important tribal group, a “small number of Turrbal people” finds no support in the publications to which she referred, in Dr Fisher’s report as tendered in this case, or in the evidence otherwise.
93 It is necessary next to consider the evidence of Ms Isaacs and her family on this issue of continuity. Ms Isaacs was born at the Barambah Settlement (as it then was) in 1920. Much of her early understanding of aboriginal customs, beliefs and rituals came from what she was told by her mother, a woman from the Kamilaroi tribe in northern New South Wales, and her step father, Cobbo Williams, or “Barp” as she called him, a man from the Butchulla people of Fraser Island whom Ms Isaacs’ mother married after the death of Ms Isaacs’ father in 1923.
94 As a child, Ms Isaacs lived in the girls’ dormitory at the settlement. She “grew up with” (as she put it in her affidavit) the children of her mother’s step-sister. Their family was based at Hervey Bay, where Ms Isaacs spent much of her time as a child. With her cousins, she went “weekly – if not daily” to Urangan Point, where they searched for periwinkles in the wet sand on the beach. She was told by the Butchulla elders that there was a footprint in a rock at Urangan Point where “Bidhal” (God) stepped over to Fraser Island.
95 Barp passed on to Ms Isaacs ancestral stories about the Glasshouse Mountains, Beerwah, Mt Coot-tha, the Brisbane River, “the Rainbow Serpent and other places of cultural significance”. He told her about laws and customs “relating to the presence of spirits of the old people and other spirits in the Turrbal, Gubbi Gubbi and Butchulla countries”.
96 Barp was a powerful songman. There was an occasion, when Ms Isaacs was a little girl, when she saw “the mudman being sung up from under the spring in Muddy Flats”, an area at the settlement used as a corroboree ground. The mudman came up out of the earth to his waist, and was white-looking. Barp told Ms Isaacs not to be frightened, as the mudman was just coming up to see them. The old songmen and women told him that everything was fine, and he went back down into the ground.
97 At Cherbourg, Barp always made the corroboree. He and others did this with hollow logs, collected from fallen trees, placed in an upright position around the dancing area in a circular fashion. A fire was made in each log, such that the fire would spout through the top.
98 When Ms Isaacs was a child, she was “smoked” to protect her from evil. This involved her being tied to a tree, and a fire, made from particular wood, being lit in a circle around, and some distance away from, her position. She stayed there, being smoked, for most of the day, and was freed at sunset. She ascribed her subsequent healthy life to the fact that, because of this ceremony, no evil spirits could touch her. Another procedure which Ms Isaacs underwent as a child was administered because she had an illness related to fatigue. The elders dug a hole in the ground, and built a fire in it. When the fire had died down, the leaves of trees were placed over the ashes, and Ms Isaacs was placed on the leaves. The hole was then covered with a kangaroo skin rug, after which she recovered from the illness.
99 From her “earliest recollection”, Ms Isaacs was told by her mother and Barp that the name “Daki Budtcha” referred to her “grandfather’s role in the Gubbi Gubbi society as a ‘Gundir’.” Under Turrbal tradition, Gundirs were the people who communicated with the Rainbow Serpent. In big storms, Gundirs could ask the storm either to calm down or to become fiercer. The Rainbow Serpent lived in a big waterhole at Cherbourg called “The Rocks”. This serpent was referred to by Ms Isaacs “and other Gubbi Gubbi people” as “Mundaingarda”. She was told by her elders that Gundirs did not live in the same camp as the rest of the tribe, and that their movements were not known by the others.
100 Ms Isaacs said that the elders always told her who her relatives were, blood relatives being more significant than relatives through marriage. She and her contemporaries were told that it was taboo to have children with anyone who was close in blood. Blood relatives were “strictly avoided for marriages and offsprings”. Ms Isaacs herself was instructed not to marry a particular man who was interested in her because she was “too close in blood” to him. This kind of traditional knowledge was shared between the various tribes represented at Cherbourg.
101 Ms Isaacs was told by her mother and Barp that the Turrbal, Gubbi Gubbi, Butchulla, Wakka Wakka and Goreng Goreng peoples had the same laws and customs, but each had its “own separate boundary”. She said that someone had to be born (Ms Isaacs’ emphasis) into a tribe before he or she could assume the identity of that tribe. She continued:
Turrbal people own Turrbal country; Wakka Wakka people own Wakka country; Gubbi Gubbi people own Gubbi country; Yaggabul (Ugarapul of Ipswich) owned Yaggabul country and so on. If you do not have the connection through your bloodline to a particular tribe, then you are not a member of it. That is how it is.
102 Ms Isaacs said that she had “many tribal uncles, aunties, brothers, sisters, cousins, children and grandchildren and so on within the neighbouring groups” who were her father’s kin. She mentioned by name various families of the Gubbi Gubbi, Butchulla, Wakka Wakka, Goreng, Jandai, “Yagara” and Yugumbeh peoples to whom she was kin. She mentioned no Turrbal family or person. This was, of course, consistent with the Turrbal case, which was that she was, before the birth of her first child, the only known surviving member of the Turrbal people. But it is also significant because of Ms Isaacs’ comprehensive understanding of her own kin and her knowledge of the lands to which they were connected.
103 The main woman who taught Ms Isaacs was Ada Beckett, a Butchulla woman who would have been born before 1870. By a combined process of oral and practical instruction, Ms Isaacs was taught about what things could and could not be done, and how things were done, such as dancing, gathering, necklace-making, making grass skirts and clothing from kangaroo and possum skins, and female body painting.
104 Ms Isaacs said that there was a songwoman at Cherbourg called Sylvia Embrey who used to sing a particular song, the ending of which was now (ie in 2011) known by “hardly anyone”. But Ms Isaacs knew it. Speaking of the era in which she made her affidavit, Ms Isaacs said that she communicated with her ancestors daily by doing a “morning cry”. She sang her traditional songs at home daily.
105 Ms Isaacs was told by her mother and Barp that when Turrbal people died they were put in a tree, after which a fire was made under the tree to keep the body warm and to keep away the evil spirits. After the flesh had gone, the bones were collected and put into a special keeping place. The Butchullas, on the other hand, buried their deceased “in a scrunched-up, sitting, position” on the ground facing the direction of sunrise. In her affidavit, Ms Isaacs continued, “Today, when a Turrbal person passes away, we find a Gilbin tree and put it on top of the grave, or will sprinkle the seeds from a Gilbun [sic] tree on the grave.” It is unfortunate that Ms Isaacs was not alive at the time of the trial, in order to clarify this evidence. She spoke as though the passing of a Turrbal person was, in July 2011 when she made the affidavit, something which occurred at least from time to time, if not regularly, yet the only Turrbal people then known to her were herself and those descended from her. She might also have thrown some light on what was a Gilbin, or Gilbun, tree, a subject not otherwise, so far as I can see, dealt with in the evidence.
106 From the 1940s to the 1980s, Ms Isaacs worked as a domestic in Brisbane and other parts of Queensland. The places to which she referred specifically were stations in the Taroom area, Yalleroi Station, Kenmore, Moggill and Woolloongabba. Her first child was born in 1942, and it seems that her children were reared in the dormitory system at Cherbourg, with Ms Isaacs visiting them on such opportunities as she had to take leave from her various employments.
107 A section of Ms Isaacs’ affidavit of 21 July 2011 is headed “Continued Physical and Spiritual Connection”. Annexed to the affidavit was a map of dreaming tracks prepared by Ms Barambah in consultation with her mother in 2005/2006. Ms Isaacs said that the location of the tracks, and the stories about them, were told to her by her elders, particularly Barp. Barp died in 1955 at the age of 82. Fifty years, therefore, passed between the latest that he could have told Ms Isaacs about these things and the preparation of this map. To that circumstance must be added the facts that Barp was himself not said to have been of Turrbal ancestry and, at the time when the map was prepared, Ms Isaacs herself was 85.
108 As the State pointed out in its submissions, there are other reasons to approach this evidence of Ms Isaacs with caution. Even as advanced by Ms Barambah, the dreaming tracks, and the stories and songs associated with them, are unrelated to the acknowledgement of laws and the observance of customs. As it appears from the evidence, they are purely spiritual artefacts, concerned with beliefs as to the past rather than with norms which governed the behaviour of aboriginals over any period which might be considered relevant to the present case. I am not here, of course, depreciating the potential significance of spiritual elements as a basis for the existence of laws and customs, or as part of a connection case. Rather, I point to the inutility of purely spiritual beliefs about matters of the distant past in the construction of an evidentiary case about the much more concrete, and prosaic, question whether there existed in the more recent past (ie over about the last 200 years) a normative system of laws and customs that had practical relevance in the context of rights and interests in relation to land and waters.
109 In her oral evidence, Ms Barambah acknowledged that these dreaming tracks were part of a fundamental belief system which was important for all aboriginal people. They signified the courses followed by the spirits as they passed over the surface of the earth and created the features of the land. They had no particular significance for the claim area. They were not part of a specifically Turrbal belief system. They implied nothing about rights and interests in land, and make no contribution to the discriminations which are required in the present case.
110 I consider next the evidence of Arthur Isaacs, Ms Isaacs’ son and Ms Barambah’s half-brother. He was born in 1951 at the Esk Hospital. He was placed in, and grew up in, the dormitory system at the Cherbourg Settlement. His mother worked as a domestic at the Eskdale Station, the Taroom Stations and other stations in the same area. Between such periods of employment, she worked as a domestic in the dormitory at Cherbourg, which gave the opportunity to be with her son. Notwithstanding that, the substantial part of Mr Isaacs’ understanding of aboriginal law and culture was conveyed to him by elders with whom he had more regular contact. Foremost amongst them was a man described by Mr Isaacs as his “tribal grandfather”, a Gubbi Gubbi man called Dickie Nalbo, or Dickie Cobbo. He was 50 or 60 years old when Mr Isaacs was eight. Mr Isaacs was, as a boy, also in daily contact with two “tribal aunties”, one a Gubbi Gubbi woman and the other a Wakka Wakka woman.
111 Dickie Nalbo told Mr Isaacs about the times when aboriginal boys underwent initiation, at the age of 11 or 12, at the bora rings. He told him that the church had “put a stop to initiations when he was young” (ie, I would estimate, in about the first decade of the twentieth century).
112 When Mr Isaacs was a boy, the elders would take him and the other children to visit other family members in country as far away as Fraser Island. When travelling by train past places such as Gympie, Cooroy, Nambour and Caboolture, the elders would state what these places meant, and whose land it was. For example, when passing the Glass House Mountains in Gubbi Gubbi country, the elders would tell stories of the mountains and about Pine River where the carpet snake and the black snake travelled.
113 Dickie Nalbo and Mr Isaacs’ mother taught him “the boundaries of Turrbal country”, which he described generally as the Logan River, Moggill Creek, Mount Glorious, Redcliffe, Pine River and the sea. The elders informed Mr Isaacs as a boy that the area now known as the Exhibition Grounds was part of his mother’s country. They told him that Woody Point, Humpy Bong and Kangaroo Point were in country belonging to his mother’s mob.
114 From the time that Mr Isaacs was 11 or 12, Dickie Nalbo would take him to significant sites in Turrbal country, telling him that Turrbal country was his country. This occurred during trips from Cherbourg to Brisbane for the purpose of attending corroborees which were also attended by aboriginal people from many districts. When Mr Isaacs was in grade six or seven, he participated in a corroboree at York’s Hollow, and listened to the elders telling stories. He was brought to the showgrounds at Bowen Hills as a dancer, which he was told he had no choice but to do because it was his “mother’s mob’s country”.
115 On occasions on these trips to Brisbane, Nalbo would ask the driver of the truck in which they were travelling to pass by known places in the area, so he could teach Mr Isaacs about them. He explained the significance of various sites. He told Mr Isaacs that it was his country, and that he had an obligation to look after the sites that were pointed out. These places included “bora rings at Samford, Moggil [sic] Road, Redcliffe, Ferney’s [sic] Grove, Ninghy [sic], Nudgee … and … Mount Cootha [sic]”.
116 At Cherbourg, Dickie Nalbo taught Mr Isaacs the laws governing hunting and fishing, although they were not laws that applied to Turrbal country specifically. As an example, Mr Isaacs referred to laws relating to the killing of kangaroos: never kill one only of a male/female pair travelling together, and, once a kangaroo has been killed, always clean it on the spot and bury the stomach. Mr Isaacs was taught also by a man at Cherbourg called Jack O’Chin, matters such as techniques for fishing and the making of various artefacts such as spears, boomerangs, nulla nullas and rugs. Where it remains possible to hunt in Turrbal country, Mr Isaacs considers that he may do so without obtaining the permission of anyone. But if he wanted to hunt in Wakka Wakka or Gubbi Gubbi country, he would need to ask permission.
117 According to Mr Isaacs, when there were funerals at Cherbourg, shells would be placed on the graves. In his evidence, he said nothing of the Turrbal funerary practices referred to by his mother (see para 105 above); and she, correspondingly, said nothing of the practice of placing shells.
118 At about the age of 16, Mr Isaacs left Cherbourg for the purpose of undertaking his apprenticeship in carpentry, which he did in Brisbane. At about the age of 23, he moved to Mornington Island and worked there as a carpenter. He spent much of the next 25 years on Mornington Island, during which time he made frequent visits to Brisbane to visit his mother. At such times, he would hunt and fish in forest reserves and on private land, with the owners’ permission.
119 The particular hunting areas to which Mr Isaacs referred in his affidavit were Samford and Mount Mee, only the latter of which is in the claim area, and Mount Nebo and Mount Glorious, each of which is slightly west of the claim area. He had a carpenter friend who said that he was always welcome to hunt on his property at Burpengary – again, not in the claim area. However, Mount Coot-tha is undoubtedly in the claim area, and it was here that Mr Isaacs used to gather honey from the native beehives, using the techniques taught to him as a boy at Cherbourg.
120 Turning to the evidence of Ms Barambah herself, she was born in 1955 at Cherbourg. She was raised in the girls’ dormitory, and attended primary school, there. She had a two-week holiday at Clontarf on the Redcliffe peninsula when she was seven years old, and, from 1963 to 1966, she spent her Christmas holidays at Milton and St Lucia. After one year of High School at Murgon, in 1968 she was fostered to a non-aboriginal family in Melbourne, where she attended secondary school, studied classical music at the Melba Conservatorium of Music and, in 1979, graduated in Dramatic Arts at the Victorian College of the Arts. She lived in Brisbane between 1984 and 1986, and has done so since 1994.
121 While she was a child at Cherbourg, Ms Barambah was told where Turrbal country was, and was taught about laws and customs which applied to that country and to Turrbal people by her mother and by three female elders, two of whom were Gubbi Gubbi and the third of whom was Wakka Wakka. Her mother told her that Redcliffe, Kangaroo Point and Victoria Point were her country, and that she (the mother) had in turn been told that by Barp.
122 In her affidavit affirmed on 27 September 2011, Ms Barambah made it clear that singing was her life. Combined with her strong aboriginal consciousness and identity, this has led to her performing aboriginal songs in a variety of settings, including (since 1996) ceremonies of welcome to country. In that affidavit, she said:
I have observed a tendency among people today to not become actively engaged with their rights and responsibilities as landowners until their 30s and 40s; younger people will want to experience the wider world, and will only become more involved in Aboriginal community life as they get older. A common exception to this which I have observed is with people in the arts, including painters, singers and dancers – it has certainly been my own experience that being a professional singer kept me grounded in my own culture. In my experience, all artists draw heavily on their personal influences, and an Aboriginal person’s traditional culture will obviously be a major influence for him/her.
123 In that affidavit, Ms Barambah also said that, in 1992, the ABC engaged Ernie Dingo and herself to make recordings of some aboriginal dreamtime stories. The sources of the stories were not identified. Ms Barambah refused to sign the releases necessary to allow the project to go ahead because express permission to use the stories had not been obtained from the peoples to whose country the stories related.
124 Also in 1992, Ms Barambah recorded a version of the song “Gurringindi Narmi”, originally composed by a Gubbi Gubbi couple and taught to her by her mother, but she was not prepared to allow it to be released without the permission of the composers’ granddaughter. That permission, once sought, was readily given.
125 In February 1990, the aboriginal musical Bran Nue Dae opened in Perth. Ms Barambah played the part of the mother, Aunt Teresa. In the lead-up to that opening, she was interviewed by Prue Dashfield for The West Australian Magazine. In that interview, Ms Barambah presented as a passionate aboriginal woman, stating that, in her singing, she had found her mountain and she proposed to climb it. She described herself as an “activist”, and it was obvious that her aboriginality and her sex were very important to her in a world of discrimination. She said nothing about any personal identification as a Turrbal woman. Indeed, Ms Dashfield reported as follows:
An Aboriginal of Sri Lankan, Afro-American and Scottish heritage, she was born at Queensland’s Cherbourg Aboriginal community, where her tribe was rounded up and taken two generations before. “There’s a stigma about mission blacks, but I just feel proud I’m from Cherbourg” and she recites the names of the community’s success stories – opera singer Harry Blair; cricketer Eddie Gilbert who bowled Bradman for a duck; and three or four boxers.
Cross-examined about the omission of any reference to the Turrbal people in that interview, Ms Barambah said:
I identify as a Turrbal, Gubbi, Wakka woman so I wasn't getting into A, B, C or D. I was proud to just be an Aboriginal person. You must realise at the time the – the platform for which Aboriginal people could do anything, let alone get a write-up in the papers, was quite thin, you know what I mean.
126 Aside from what Ms Barambah had been told by her mother and others about her own ancestry, to which I shall turn below, the picture which this evidence paints down to 1990 at least is that of a young woman who was proud of her aboriginal blood and conscious, to an extent, of the regions from which her ancestors hailed. But she did not live her life by reference to the traditional laws and customs upon which she now relies. Her own circumstances provide no sustenance for the thesis that those laws and customs had an uninterrupted vitality over the whole of the period with which the court is concerned.
127 In considering the evidence of Ms Isaacs, Mr Isaacs and Ms Barambah set out above, I should commence by making it clear that it was no part of Ms Barambah’s project to establish the continuous existence of the relevant society through the lives and doings of the Gubbi Gubbi people. Ms Barambah called Nurdon Serico, a Gubbi Gubbi elder of about 80 years of age, and his evidence has been valuable in a number of respects to which I shall refer. But his evidence did not deal, other than possibly by way of minor, passing or fragmentary references, with the question whether the Gubbi Gubbi people could establish, for themselves, the kind of continuity required by Yorta Yorta.
128 That circumstance is of some significance because, even on Dr Macdonald’s interpretation of the historical record, it could not be seriously suggested that the Turrbal people themselves, as defined in Ms Barambah’s application in the present case, had or have either the numbers or the patterns of behaviour, rooted in normative laws and customs, to constitute a society in their own right. As mentioned earlier, it is common ground that the society which existed before sovereignty most probably extended well beyond the claim area and incorporated more tribal groups than those which had recourse to that area. So the tiny size of the Turrbal claim group and those from whom they claim to be descended would not be disqualifying, if the (larger) society of which they were a part displayed the continuity required by Yorta Yorta. Because of the indigenous community in which Ms Isaacs’ was brought up at Cherbourg, the Gubbi Gubbi people would be the most obvious candidates as constituting the core of such a society. But, if they have a continuity case of their own, the present has not been the occasion to make it good.
129 I would not hold that the patterns of behaviour which is revealed by the evidence of Ms Isaacs, her son and her daughter bespeak the existence of a society characterised by a normative system of laws and customs in the Yorta Yorta sense. To have been told, as these witnesses were, about traditional customs, even those implying obligation, is not enough. “Their content may be known, but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests ….” (Yorta Yorta 214 CLR at 445-446) To have visited places of traditional interest, when in the claim area for other reasons, which Ms Barambah and her brother did, is not enough. And to have witnessed or participated in ceremonies, rituals and the like, which Ms Isaacs and her son did many years ago, is not enough. Each of these circumstances and activities would be expected to be part of a living society, but they do not, either separately or in combination, constitute, or require the court to infer the existence of, a society.
130 Looking beyond Cherbourg, from what the evidence shows, in Ms Isaacs’ case from at least about 1940 when she was no longer spending the majority of her time in the company of the elders and other senior aboriginal people at Cherbourg, in her son’s case from at least about the time when he went away to do his apprenticeship, and in her daughter’s case from at least about the time when she was sent to Melbourne for her secondary education, the normative system of laws and customs which regulated their lives was a contemporary one deriving its content from post-sovereignty institutions. It was not a traditional system.
131 Taking all of the evidence into account, I am not satisfied that there has been an uninterrupted acknowledgement of traditional laws, or observance of traditional customs, under which rights and interests in the land and waters of the claim area might arise, since sovereignty, on the part of the Turrbal group and those from whom they claim to be descended. Indeed, on the evidence in this case, I would hold the contrary to be the situation.
132 Turning next to the Yugara applicants’ case on continuity, I commence with Dr Powell’s response to Dr Williams’ opinion referred to in para 75 above: she said that she had not carried out any research on the question. She did not, therefore, offer an opinion on it. Some of those from within the Yugara claim group, however, gave evidence from which, as I understand their case, they would want it to be inferred that the aboriginal society which existed at first white settlement in the Moreton Bay area had continuity in the Yorta Yorta sense down to the present time. That evidence must now be considered.
133 Des and Pearl Sandy were born in Beaudesert, Mr Sandy on 19 January 1942 and his sister Pearl on 26 March 1952. In 1954, the family moved to Brisbane, where they lived at Victoria Park. The family later moved to Thornlands, and later again to Victoria Point, where they lived with many other families.
134 Mr Sandy gave evidence of his doings as a boy in the Beaudesert area. He spent a lot of time as a boy with an elder called Robbie Logan, who told him many stories. Another elder, Les Hill, told him that he and his parents used to walk from the Woodenbong Aboriginal Mission Station to either Hillview, “Buddai” Blacks Camp in Migunberri, or through the pathway further to Beaudesert “Muninjarlie” country. Hill said that the most daunting part of the journey was between Mt Lindesay and the other side of Mt Barney: they had to get past this part of the journey before dark because of the bad spirits that lived in that area. The same applied to the pathway through the border ranges to Migunberri country.
135 When the Sandy family lived in “The Lane” at Beaudesert, Ida Fogarty would show the local children the way to go fishing in Spring Creek. She would pick up some sand or soil while speaking in lingo, to pacify the spirits that were in the water there. There were some waterholes to which the children were advised not to resort, lest they catch “some mysterious sickness”. If that happened, the only people who could help were “clever” men or women: white man’s treatment or medicine would not work.
136 Mr Sandy was taught by the elders what to look for when a certain tree blossomed, how to tell the time of year by the sight of the bark of a certain tree falling off or floating down the river, when the fish and animals were fat, when certain species of fish and animals could not be eaten, what fruit, berries and nuts could be eaten, what trees and plants to keep away from, or not to touch, the totems to which particular fish, trees and birds belonged, and the signs that represented rain and thunderstorms. He was taught to observe any peculiar or uncharacteristic behaviour on the part of birds and animals, including domestic ones, since that would be a warning that he should get out of the place and go home.
137 Mr Sandy was taught how to trap animals in the bush, and when fish were ready to be eaten. He used to go hunting, and to gather fruit and nuts along the Logan River, Spring Creek and Teviot Brook. The elders taught him the etiquette of where he could go in country, the places that were taboo, and the waterholes in which they could not swim.
138 After Mr Sandy’s parents and their family moved to Victoria Park in 1954, he attended the Kelvin Grove primary school for a further two years, and then entered the workforce. He used to hunt for bush tucker in the area between Victoria Park and Kelvin Grove. In the 1960s he continued to hunt and to fish and to keep in contact with his elders.
139 Otherwise, Mr Sandy’s affidavits related what he knew about his forebears – a subject to which I shall come in detail in a later section of these reasons – and the conditions in which he and his family lived in various places.
140 Turning next to the evidence of Ms Sandy, her grandmother Violet Murphy taught her some “tribal ways”. She taught Ms Sandy how to fish, and how to tell what was the right time to catch particular kinds of fish. When fishing at night, she taught her to make a fire from the mangrove trees to keep the sand flies and mosquitos away. She instructed her not to take female mud crabs, but to throw them back so they could breed again. She (Murphy) told Ms Sandy and the others how to catch, prepare and cook porcupine. She would make a fire of coals on which Ms Sandy and the other children would throw the wild yams that they had dug. She taught Ms Sandy about bush medicine, such as how to make soap from parts of a particular tree.
141 Ms Sandy was told by her elders that witchety grubs were good to rub on babies’ gums when they were teething. She was told not to pick up stones or shells and take them away, not to step over people, and not to sweep after dark (which would wake the spirits). She was told always to acknowledge the elders of another tribe’s country when entering it, and to ask them permission regarding cultural practices.
142 Turning next to the evidence of Ruth James, she was born on 30 November 1949 in Beaudesert, and has been living there for about the last 18 years. She still lives there. However, a large part of her life was spent on a property owned by the Tilley family at a place called The Hollow, where her family moved when she was nine years old. This property was to the north-east of Kooralbyn, near Mt Tilley. For many years, she and her family were permitted to camp, to hunt, to gather food and water, to wash, to make tools, to dance, to sing and to undertake spiritual healing and story-telling on this property. Mrs James has always regarded this area as “home”: it is, she said in her evidence, where her heart is. In one of her affidavits, she said that she had lived on country for most of her life: it was the country between Beaudesert and Kooralbyn to which she was referring.
143 As a girl and young woman, Mrs James stayed with relatives at Spring Hill, Red Hill and Victoria Point, where she worked picking strawberries. Subsequently, she lived at West End, Woolloongabba, Highgate Hill, New Farm and South Brisbane. She worked at Kenmore and Thornlands. She married in 1968, after which she and her husband lived at Rochdale, East Brisbane and New Farm. However, even after she was married, she always returned to the property at The Hollow to heal herself.
144 In her affidavits, Mrs James gave much evidence of what she was told by, and learnt from, her elders. In her oral evidence, she explained that an elder, in the sense that she used the word, was the leader of a family. She is now the elder of her family in relation to women’s business and jointly with her brother John for important decisions that affect both men and women. In referring to her evidence below, I shall use the word in the same sense.
145 Mrs James said that elders directed business in marriage (only by, for example, advising against marriage to a person too closely related by blood), blood lines, trade, ceremonies, travel, traditional lore, hunting and gathering, births, deaths, authority, customs and protocols, sacred places, general living, food preparation and fire.
146 At The Hollow, Mrs James’ family made humpies “from materials that were around”. They took water from a nearby creek. To make fire, they rubbed two sticks together. They practised bush medicine. They ate echidna, goanna, turtle, mullet, catfish, eel, witchety grub, yabbies, wild raspberries, wallabies, possum, ground apples, yellow berries, wild figs, gooseberries, bunya nuts, pig weed, native honey, yams, kangaroo grass, fresh water jew, wild cucumber, wild cherry, bush lemons “and more”. She was told carefully to remove a “certain gland” from animals and fish before they could be eaten. She was told what animals were edible (eg the sand goanna) and what were not (eg the black tree goanna).
147 Mrs James referred to singing, dancing and ceremonies. She was told by her grandfather that it was disrespectful to laugh during ceremonies. When her grandmother came to visit and they went fishing, they would throw sand around the corks on the fishing lines and sing a particular song which induced the fish to bite.
148 Mrs James was taught by her elders to respect everything about the land, not to destroy it in any way, and to kill animals only for the purpose of eating. There were certain places that were deemed sacred and spiritual where Mrs James and others were forbidden to go. Burial sites were sacred, and should be walked around.
149 Mrs James was told by her elders about many spirits, which she named in her affidavit. One on which she elaborated when questioned by counsel for the State was the bunyip which lived in “Il Bogan Lagoon” outside Beaudesert. Her grandmother told her that it was possible to hear the bunyip travelling under the ground between different waterholes: this was “the Spirit thunder”. Using the English equivalents, the other spirits mentioned by Mrs James were the Sky-god (or “great spirit”), the Creator spirit, the “bad feelings/leave that place” spirit, the “ghost/spirit”, the “little hairy men” spirit, and the old spirit witch of the mountains. The two last-mentioned of these would grab children and take them away from their parents if they broke the law.
150 There were haunted spirit places, such as Mt Lindesay, where Mrs James’ father advised her not to go. She was advised to leave any place where “the spirit wind starts up”, or at least to behave herself there. She was advised by her mother not to look behind when walking in the dark, lest she “get caught”. She was told that there were places where only men or women should go, places to avoid altogether after dark, and places where the spirits “throw stones at you”.
151 Mrs James learnt how certain things came to be: how the magpie got its call, how the robin got its red chest, how mussels got their markings, how echidnas came to be, and how the cockatoo got its crest, for example. She learnt why particular mountains, or even particular rocks, came to look the way they do. Prompted during cross-examination, she gave the example of some rocks which had been formed when some men had been turned into stone by the administration to them of a curse on account of them having made off with, and then cooking and eating, other men’s dogs.
152 There were other witnesses called by the Yugara applicants whose evidence was, I assume, meant to be understood as supporting an inference of continuity in the acknowledgement of laws and the observance of customs, but the general tenor of the Yugara evidentiary case, in these respects, is sufficiently indicated in what I have written above. The only other aspect of the Yugara evidence which, so far as I can see, might possibly be pressed into service on the continuity point was one which was mentioned in the outline filed on behalf of those applicants. I refer to the song of which Jackey Jackey was said to be very fond in 1894: see para 268 below. From the publication in The Queenslander, it was said that it should be inferred that this song had been in use by relevant tribal leaders since the 1830s. However that may be, the use of a song, which itself is not said to have been of normative significance, goes nowhere to establishing continuity of laws and customs.
153 Neither does the other evidence to which I have referred in summary above. Much of this evidence is concerned with stories, beliefs, fears, taboos, habits and activities which have relevance at the personal or family levels, and which might be expected to be present in an indigenous society having continuity in the Yorta Yorta sense. But they are not circumstances from which the continued existence of the society which existed at sovereignty might be inferred. In point of content, the matters to which I have referred above do not bespeak the existence of a normative system of laws and customs. Further, and crucially, the evidence does not cover anything more than a fraction of the period with which the court must be concerned: even to go back to the grandparents of the oldest of the Yugara applicants, there remains the better part of a century with respect to which the court does not have any relevant evidence.
154 The conclusion which I have reached in this part of the case is a most obvious one. Although I have, for the sake of holding up to the light the nature of the evidence on which the Yugara applicants relied, canvassed much of that evidence, I do not think I should say anything more about it than I have. As will become apparent, what is most striking is that, for the most if not the whole part, the evidence related not to the claim area at all but to areas to the south and south-west of the lower Logan, and around Beaudesert. Although it was the Yugara case that the area in which they hold native title extends as far north as the Pine, at the point of bringing forward concrete evidence from which, even arguably, continuity might be inferred, everything occurred at, or to the south of, the Logan/Beaudesert area. That in itself would not be fatal to the Yugara case, but it provides a ground for the court not to say anything more on the subject than is necessary to decide that case, concerned as it is with the claim area. In particular, I would not want to say anything that might later be used to compromise any claim to other parts of south-east Queensland that the Yugara people, or others, may wish to make.
155 In the circumstances, continuity has not been established, and the Yugara case on that aspect must be rejected.
The Turrbal Ancestry Case
156 It will be noted that the Turrbal ancestry case is a very specific one. It proposes that, before Ms Isaacs had any children, she was the only known descendant of the Turrbal people as they existed at sovereignty. Further, it became clear in the conduct of the Turrbal case in court that the two limbs of the group definition (see para 16 above) are not to be understood as alternatives. The conjunctive “and” is just that: Ms Isaacs’ connection to the original Turrbal people, as claimed in this case, is by way of her descent from the Duke of York, and not otherwise. As Ms Barambah put it while under cross-examination, “we’re only claiming Turrbal via our Turrbal blood to the Duke of York”. The integrity of the line of biological descent between the Duke of York and Ms Isaacs was crucial to Ms Barambah’s case. It was highly controversial at the trial of the proceeding.
157 Ms Barambah’s understanding of her line of descent was described in a written statement made by her on 22 April 2005 and exhibited to an affidavit made by her for the purposes of an interlocutory application in the Turrbal proceeding on 27 January 2006. In that statement, Ms Barambah said that the Duke of York had a daughter called Kulkarawa who was also known as Kitty. She in turn had a daughter by a Ceylonese man, known as Marri-dai-o, who had been adopted into Turrbal society. That daughter was known as Lizzie, later nicknamed “Saturday”, and she married a Duncan Crowe. They had a daughter called Bella (the “Bala” referred to in para 162 below), who married a Jimmy Isaacs (the “Daki Budtcha” referred to in para 99 above). Their son was called Billy, Ms Isaacs’ father.
158 Ms Isaacs was born on 27 March 1920 at the Barambah Settlement, about 200 km north-west of Brisbane. On Ms Isaacs’ birth certificate, the identity of the father was given as “Billy Isaac Isaac” (just thus, with a space between the two Isaacs), the explanation for the repetition no doubt being some confusion introduced by the requirement of the pro-forma to state the “name and surname” of the father. According to the certificate, this man was born at Goomeri, and was 40 years old at the time of the birth of his daughter. This would date his birth in 1879 or 1880.
159 From what Ms Isaacs learnt from her mother and step-father, Billy’s family worked on the Barambah and Kenilworth Stations, which were from the 1860s in the proprietorship of one Isaac Moore, from whose first name, according to Ms Isaacs, her own family came by its surname. In her affidavit, Ms Isaacs said:
Every now and then he (Mr Moore) of his mothar (whitefella) workers would go down to Brisbane for supplies and members of our family would sometimes travel down with them and while there our old people would camp with our other Turrbal & Gubbi families in the blackfella camps around Brisbane. On one of those trips my mother told me that my father was picked up at the Sandgate blacks’ camp in the 1880s and put into the Nudgee children’s home.
160 For Billy Isaacs to have been taken to the Nudgee Children’s Home in the 1880s, he would then have been less than 10 years old. No record of his admission to, or of the length of his stay in, that home is in evidence. However, he would not have been held there for more than seven years: Industrial and Reformatory Schools Act of 1865 (Qld), s 8. In her affidavit, Ms Isaacs went on to say:
My father also worked on Imbil Station and Widgee as well as being part of the Aboriginal families who lived at Kenilworth, Barambah, Boobyjin, Widgee, Miva & Imbil Stations. Imbil is a name of some of our ancestors. I was told this by my mother, my stepfather Cobbo Williams and my tribal grand-father Paddy Miva.
161 In a statement attached to Ms Isaacs’ affidavit made in January 2006, she said that, as a child, she was “always told by [her] elders that some of [her] ancestors came from Kangaroo Point way (the Turrbal tribe) and Woody Point way (the Ningy Ningy clan)”. Had Ms Isaacs been available to give oral evidence, the question whether these parenthetical insertions reflected something she was told as a child, or were editorial additions by her in the preparation of her affidavit, might have been explored. As matters stand, however, I am left to make of it what I can, in which respect I would observe that the latter interpretation of the passage is, grammatically, the more natural one.
162 Ms Isaacs said that her father was the great-great-grandson of the Duke of York. This claimed descent was elaborated upon in her affidavit made in July 2011. Elders, and her mother, had told her that Daki Budtcha’s wife “Bala” was the great granddaughter of “Dakki Yakka”, nicknamed the Duke of York by the early European settlers. Ms Isaacs does not suggest that she ever knew her grandmother Bala or, for that matter, her grandfather Daki Budtcha. Indeed, in a letter to Ms Barambah dated 14 January 1998, the Senior Policy Officer, Community and Personal Histories, of the Queensland Department of Families, Youth and Community Care stated that she had been “unable to locate any information regarding the parents of [Ms Isaacs’ father]”. The source of Ms Isaacs’ information about her grandparents could not have been Ms Isaacs’ father himself, as he died when she was three years old. It was, it seems – and I do not understand there to be any doubt about this – Ms Isaacs’ Kamilaroi mother, her Butchulla step-father Barp, and perhaps other elders of the Gubbi Gubbi people, who gave Ms Isaacs to believe that she was related, through her father and his mother, to the Duke of York.
163 There are two other matters referred to by Ms Isaacs in her affidavit made in July 2011 that I would mention at this stage. The first is that she claimed to have seen “the graves of some members of the Turrbal People who sought refuge at the Kenilworth Homestead” at a reunion there in 1997. As I have earlier mentioned in these reasons, the proposition that there were, in that part of Queensland in the late nineteenth century, aboriginal people who had migrated from the Brisbane area in the face of creeping white settlement is no more than surmise. I do not say that it did not happen, but there is no evidence in this case from which it could be inferred, and the Turrbal historian, Dr Fisher, said nothing to that effect. Ms Isaacs did not say what form these “graves” took, but I presume that, for her to have been able to identify the deceased people concerned as Turrbal, there would have been headstones or some equivalent markers giving names; that is to say, a permanent record of sorts. No evidence of any such record, and no evidence of the grave of any person at Kenilworth who could be identified as having been a Turrbal person, was led in this case.
164 The other matter mentioned by Ms Isaacs was that her mother told her that her (Ms Isaacs’) father was “part Ceylonese and Indian”. Her mother told her that some people thought that her father was a full blood aborigine, but that was not so. This otherwise trivial piece of information wove itself into the Turrbal ancestry case at the point where Kitty, the Duke of York’s daughter, is claimed to have had a daughter of her own by a Ceylonese man, as mentioned in para 157 above. There is no suggestion, however, that Ms Isaacs’ mother filled in that part of the detail: it seems to have been something constructed by Ms Barambah as a result of reading Petrie’s Reminiscences. I shall return to this subject below.
165 Further evidence about Ms Isaacs was given by Nurdon Serico, an Elder of the Gubbi Gubbi people. He was born at Brisbane in 1933, and has lived in the Ashgrove area since 1939, and at the The Gap since 1959. His mother Evelyn was born at Tuchekoi in 1906, and was a very knowledgeable Gubbi Gubbi woman. She, and her mother Lucy Monkland, had helped with the care of the young Connie Isaacs at Cherbourg in what I take to have been the 1920s. Mr Serico said that he had learnt from his mother’s brother Cliff Monkland that the North Pine River was the southern boundary of Gubbi Gubbi country. At a wedding at Redbank in the 1940s, Mr Serico met Ms Isaacs. His mother told him that she (Isaacs) was Turrbal, and that she was their sister (the latter word, of course, being understood in a traditional, rather than in a literal, sense). She added that the Turrbal were “the Brisbane River people”. Some years later, Mr Serico’s mother explained to him that the Turrbal were the Gubbi Gubbi’s neighbours to the south. Although Mr Serico lived nearly all his adult life in what he understood to be Turrbal country, he did so, as he understood it, because he had Ms Isaacs’ permission.
166 Indirect though it was – and no objection was made to the receipt of this evidence – Evelyn Serico’s understanding that Ms Isaacs was a Turrbal woman should be accorded some weight because she would have been about 14 years old when Ms Isaacs was born, and about 17 years old when Ms Isaacs’ father died. Having done so, however, I am still left with nothing more than some corroboration of Ms Isaacs’ own evidence that she was of Turrbal and Gubbi Gubbi descent. That was her understanding, conveyed to her in the ways I have described above, and, unsurprisingly, it was also the understanding of the young woman who spent much time with her at Cherbourg in the 1920s.
167 Relevantly to the point presently under discussion, the evidence of Ms Isaacs and Mr Serico is highly derivative. We are here concerned with genealogy rather than with laws and customs, so ss 72 and 78A of the Evidence Act 1995 (Cth) have no operation. This evidence was given without objection and, in my view, appropriately so. But questions of reliability and weight remain. It is implicit in the evidence of Ms Isaacs that it was from her father Billy that her mother Bella learned of Billy’s Turrbal antecedents. However, from what is known about Billy – referred to in more detail below – he did not himself hail from the claim area. On the probabilities, he could only have come to the belief that his ancestors were from the Brisbane area from something that he, in turn, had been told by others, most likely his parents. But nothing is known of them.
168 In her affidavit sworn on 27 January 2006, Ms Barambah said: “My great grandfather (now deceased) was Daki Budtcha, also known as Jimmy Isaac, a Dippil man.” She said that, from the time of her earliest recollection, her mother had told her that the name “Daki Budtcha” referred to her great grandfather’s position in the Dippil society as a “Gundir”. From conversations which she held with many elders, and with her mother, Ms Barambah had been informed since her earliest recollection that Daki Budtcha’s wife was “Bala”, who was the great granddaughter of “Daki Yakka” (or “Dakkiyakka”), the Duke of York. Her mother, and those elders, always told Ms Barambah that the Brisbane/Redcliffe region was the country which belonged to her “old people”, namely, her “Turrbal ancestors”. Her mother always told her that their ancestor was “the boss of Brisbane”.
169 Ms Barambah, who also claims Gubbi Gubbi ancestry, said while under cross-examination by Pearl Sandy:
No, my mother told me that I was from this country. We didn't get into languages really. She says, “Your country is Redcliffe, Kangaroo Point, Victoria Point.” She also told me Noosa Heads, Kenilworth, Motham Mountain which is up in the Gubbi country. My mother also told me Barambah was our original place too. We didn't get into language groupings or whatever like Turrbal, Gubbi, Wakka. We were told we belong to that – those country place – those places of identity, and it was my understanding we are traditional owners of those identities as clan members for those specific areas.
Ms Barambah’s evidence was, it must be said, a mixture of what she had been told by her mother and what she had learnt from her own researches, undertaken in circumstances to which I shall refer. The assignment to Daki Budtcha of the European name “Jimmy Isaacs” (or “Isaac”) was not mentioned by Ms Isaacs in her affidavits. Neither did she assign the European name “Bella” to her paternal grandmother. I think it unlikely that either of these equivalents was known to Ms Isaacs, or mentioned to her daughter. As will appear, Ms Barambah came by them in other ways. Otherwise, her evidence about the identity, and the forebears, of her mother’s father Billy is derivative, and adds nothing to what is set out in the affidavits of Ms Isaacs herself.
170 It was in a chance meeting with the then proprietors of Kenilworth Station, Jim and Jennifer Rowe, in 1996 that Ms Barambah came across some notes that had been made by Jim’s mother Frances Rowe about the people, including the aboriginal people, who worked on the station in the early years of the twentieth century. As Ms Barambah interpreted them, they provided evidence about her forebears which has been a significant foundation stone in her case in this proceeding. Ms Barambah’s interpretation is not accepted by the other parties. However, it is palpable that, as her grasp of the detail of the historical record – as she interprets it – has grown over the years since 1996, it has become more natural that she should give emphasis to anything said by her mother, and the Gubbi Gubbi and Wakka Wakka elders, when she was a girl about her roots being in the Brisbane area, and, correspondingly, less realistic to expect her to dissociate what she was told by them from the results of the reading and research which she had undertaken. Her evidence as a witness must be received in this context. Her answers were, generally, given with a confidence and assurance of one who was thoroughly on top of her subject. There is nothing wrong with that, of course, but it must be recognised that Ms Barambah’s evidence was always informed by and, I would have to say, at times crafted to be consistent with, the material to which she has been exposed since about the mid-1990s in anticipation of, or in the prosecution of, her native title claim.
171 Led in cross-examination by counsel for the State using a genealogical chart showing Ms Isaacs’ ancestors as Ms Barambah contended, Arthur Isaacs (Ms Barambah’s half-brother) confirmed that his mother’s parents were Billy Isaacs and Bella. He said that he thought that Billy’s father was Duncan Crow and that his wife was Lizzie. It was apparent from the way, and the terms, in which Mr Isaacs answered these questions, however, that he was very unsure about the subject inquired of. It was not dealt with in either of his affidavits. As will appear in due course below, it was not part of Ms Barambah’s case that Billy’s father was Duncan Crow. What is significant is that, even prompted by the chart, Mr Isaacs did not confirm that Billy’s father was a man called Jimmy Isaacs. When he was asked whether he knew anything of the people in between Duncan and Billy, Mr Isaacs said, “yes, that mum having … a half-brother too to a white fella and that – and he’s – that was grandfather Billy I think.” From what is known from the objective record – referred to below – it can only be concluded that Mr Isaacs was very confused about his ancestry back beyond his mother’s parents.
172 Aside from the specific genealogical material to which I refer below, it is hard to identify any firm basis to give credibility to the notion that Ms Isaacs was of Turrbal descent and, moreover, was descended from the “boss of Brisbane” specifically. I do not gainsay that she was told so in the circumstances to which I have referred, but a court would normally look for something more solid upon which to found a finding that the Duke of York himself was her blood ancestor. This is a very important question, the answer to which will have the potential, together with other matters, to entrench rights and interests in places where they would not otherwise be, to the advantage of Ms Barambah and her family and to the detriment of others. In these circumstances, it is unsurprising that Ms Barambah should have sought to base her ancestry case on more reliable, more objective, evidence, and it is, if I may say so, a credit to her that she has proceeded in this way.
173 The occasion has now arrived to examine, and to test, that objective evidence. I commence at the more recent end of the proposed genealogical record, that is, with Billy Isaacs himself.
174 There is nothing in the objective record to connect Billy Isaacs with Brisbane or with any part of the claim area. As mentioned, he was born at Goomeri. At that time, that birthplace cannot have been the result of his parents’ residence at what was later the Barambah Settlement. Indeed, as noted above, it is assumed that they worked on the Barambah and Kenilworth Stations. But we do not know who they were. There is a 1903 list of residents at the Barambah Mission (as it was at the time) on which appears the name “Isaac”, together with the age of 24 years. It is possible that this was a reference to Billy Isaacs. There is a newspaper report that “W. Isaacs (aboriginal), Gympie” won the final heat of the Sheffield Handicap over 130 yards on 23 February 1904. There is a letter dated 26 June 1905 over the hand of the superintendent at the Barambah Settlement noting that “Billy Isaac” had been ordered off the settlement for being lazy and disobedient. A further letter dated 17 June 1905 contains the suggestion that Isaacs had gone to, and was working satisfactorily at, the Deebing Creek Settlement. There are entries in the inwards correspondence register of the Chief Protector of Aboriginals (the correspondence itself no longer being available) that suggest that Billy Isaacs was working at Dunwich in September/October 1907. The entry for 23 September 1907 reads: “That Billy Isaacs returning to Barambah”.
175 A little more information about Billy Isaacs appears from such evidence as there is about his wife, Bella. In her affidavit affirmed on 21 July 2011, Ms Isaacs said that her mother was Bella whose maiden surname was “McLean or Kirk or Myers”. Bella was born a Kirk, and married a man called McLean, by whom she had a daughter (Doris) and a son (David). It was under the name “Bella McLean” that an order was made for her removal from Brisbane to the Barambah Settlement on 7 April 1908. The relevant entry in the removal register notes that she had two children, and Ms Isaacs understood that the younger of them, David, was then newly-born. Notwithstanding the paternity of that baby, the register is also endorsed “Married Billy Isaacs”. All this is rather confusing, not least because a lot seems to have been happening in about 1908. But it does explain how Bella was described as having had two maiden names apropos her marriage to Billy, Kirk and McLean. More of a mystery, and perhaps one that does not need to be resolved, is how Billy Isaacs came to believe that his wife’s maiden surname was “Meyers”. That he did so believe is evident from an entry to that effect on Connie Isaacs’ birth certificate, in relation to which Billy was the informant.
176 The picture of Billy Isaacs which thus emerges is of someone who was born in Goomeri (to the north-east of what was later the Barambah Settlement), whose family worked both on the Barambah Station as such and on the Kenilworth Station in the Mary Valley, who happened to be in Brisbane as a boy of less than 10 years when accompanying some adults who had gone there for supplies, who was sent to a children’s home in Nudgee for some unstated period, who may have been resident at the Barambah Mission in 1903, who was described as having been from Gympie in 1904, who was dispatched from the Barambah Settlement in 1905, who was returned to the settlement after working in Dunwich in 1907, who became the husband of a woman who was removed to the settlement in 1908, who worked in the areas where he grew up, including at the Barambah Station itself, in the Mary Valley and in various areas generally well to the north-west of the claim area, and who was present to testify to the birth of his daughter at the settlement in 1920.
177 Quite clearly, the movements and whereabouts of Billy Isaacs, to the extent that they are known, would not justify a conclusion that he had a relevant connection with the claim area. He spent some time in the claim area, but that arose from what appears to have been visitations rather than residence or any kind of permanent association. Any objective assessment would see him, by his whereabouts, his work and his relationships, as a man of the Gubbi Gubbi or Wakka Wakka rather than of the Turrbal. However, in her affidavit, Ms Isaacs said that she was told by her mother and by her step-father that the Isaacs family was “of Turrbal and Gubbi Gubbi ancestry”. The Turrbal aspect of this was a reference to the woman who was claimed to be Billy Isaacs’ mother, Bella, and thus to Billy himself.
178 There is no documentary evidence that Billy Isaacs’ mother was someone called Bella. Ms Isaacs did not so state in either of her affidavits, notwithstanding her having made reference to many of her ancestors on her mother’s side (a qualification I add in recognition of the sensitivity which is conventionally associated with the mention by name of the departed forebears of aborigines). But Ms Barambah did submit that Billy’s mother was the Bella referred to in para 157 above, descended from the Duke of York.
179 Neither is there any documentary evidence that Billy Isaacs’ father was a man called Jim, or Jimmy. I have mentioned the reference in Ms Isaacs’ affidavit of 21 July 2011 to her paternal grandfather Daki Budtcha. Under cross-examination, Ms Barambah said that Daki Budtcha was “Jimmy Isaacs”, or (in another answer) “Isaac Crow or Jimmy Isaac”. In her own affidavit, Ms Isaacs did not identify her grandfather by name, that additional step being taken only by Ms Barambah.
180 When Ms Isaacs made her affidavits, she was an applicant in this proceeding, and her father’s biological links to the Turrbal tribe of the 1830s and 1840s were an essential part of her case. At the time, she was represented by solicitors, who filed the affidavits. Had Ms Isaacs been told, by her mother or anyone else, that Jimmy Isaacs was her father’s father, it is difficult to accept that she would have omitted to mention the fact. The conclusion I draw is that so much of the Turrbal case as relies on Billy Isaacs’ parents being Jimmy and Bella Isaacs is not based on anything known or believed by his daughter Connie.
181 Ms Barambah herself was cross-examined on her understanding of her ancestry, in the course of which it became clear that her belief that Bella married Jimmy Isaacs derived from an interpretation of two written sources to which I shall refer below, in their proper chronological place. As will appear, I do not accept Ms Barambah’s interpretation.
182 It is necessary now to turn to the documentary source material which is relevant to the biological ancestors of Billy Isaacs, and I propose to do so, to the extent possible, chronologically, commencing with the Duke of York. From the material to which I shall refer below, it is established that he had a daughter called Kitty. Her date of birth, and any other useful biographical details, are not known, but it is apparent that she was of child-bearing age by 1846 at the latest. She is a critical link in the Turrbal case on ancestry, which has it that Kitty had a baby by an Indian convict called George Brown. That baby was Lizzie, later referred to as “Saturday Lizzie”. One of a number of questions raised by the Turrbal case, therefore, is whether Kitty did have a daughter by such a convict.
183 In this area of her case, Ms Barambah relied upon a passage in Petrie’s Reminiscences about an incident involving the Moreton Bay aborigines when Petrie himself was still a boy. Dr Macdonald placed the incident in the late 1830s, although it must be said that she had no firm foundation for doing so. The relevant passage from Reminiscences (pp 25-27) is as follows:
Another good corrobboree was based on an incident which happened when my father was a boy. This time it had reference to a young gin – Kulkarawa – who belonged to the Brisbane or Turrbal tribe. A prisoner, a coloured man (an Indian), Shake Brown by name, stole a boat, and making off down the bay, took with him this Kulkarawa, without her people’s immediate knowledge or consent. The boat was blown out to sea, and eventually the pair were washed ashore at Noosa Head – or as the blacks called it then, “Wantima,” which meant “rising up,” or “climbing up.” They got ashore all right with just a few bruises, though the boat was broken to pieces. After rambling about for a couple of days, they came across a camp of blacks, and these latter took Kulkarawa from Shake Brown, saying that he must give her up, as she was a relative of theirs; but be might stop with them and they would feed him. So he stayed with them a long time, and the bon-yi season coming round, he accompanied them to the Blackall Range, joining in the feast there.
Before the bon-yi gathering had broken up, Shake Brown, grown tired of living the life of the blacks, left them to make his way to Brisbane. He got on to the old Northern Road going to Durundur, and followed it towards Brisbane. Coming at length to a creek which runs into the North Pine River, there, at the crossing, were a number of Turrbal blacks, who, recognising him, knew that he was the man who had stolen Kulkarawa. They asked what he had done with her, and be replied that the tribe of blacks he had fallen in with had taken her from him, and that she was now at the bon-yi gathering with them. But this, of course, did not satisfy the feeling for revenge that Shake Brown had roused when he took off the young gin from her people, and they turned on him and killed him, throwing his body into the bed of the creek at the crossing. A day or two later, men with a bullock dray going up to Durundur with rations, passing that way, came across Brown’s body lying there, and they sent word to Brisbane, also christening the creek Brown’s Creek, by which name it is known to this day.
Kulkarawa, living with the Noosa blacks, fretted for her people, and she made a song which ran as follows: “Oh, flour, where oh where are you now that I used to eat? Oh, oh, take me back to my mother, there to be happy, and roam no more.” She evidently missed the flour which her own tribe got from the white people. The Noosa blacks made a dance to suit the song, and the corrobboree was considered a grand one.
Kulkarawa, after living with the Noosa blacks for about two years, was at length brought back to her own people. Father happened to be out at the Bowen Hills or “Barrambin” camp, with two or three black boys, looking for some cows, at the time she arrived. The strange blacks bringing her, both went and sat down at the mother’s hut without speaking, and the parents of the young gin, and all her friends, started crying for joy when they saw her, keeping the cry going for some ten minutes in a chanting sort of fashion, even as they do when mourning for the dead. Then a regular talking match ensued, and Kulkarawa was told all that had happened during her absence, including the finding and murder of Shake Brown (or “Marri-dai-o” the blacks called him), on his way to Brisbane. Then she told her news, and Father heard afterwards again from her own lips of her experiences.
The young gin referred to was, according to the Turrbal case, the Duke of York’s daughter, and “Shake Brown” was the “Marri-dai-o” by whom she had a daughter, Saturday Lizzie. Dr Macdonald formed the view that Saturday Lizzie was both conceived and born in the period during which Kulkarawa, or Kitty, was absent from the Brisbane tribe.
184 These propositions were put strongly in contention by the other parties. Although they accepted Petrie’s account so far as it went, they submitted that it was speculation to say that Kulkarawa was the Duke of York’s daughter and/or that Kulkarawa was the mother of the child later referred to as Saturday Lizzie. Those submissions must be accepted. As a boy, Petrie spent a lot of his time with the aborigines of the Moreton Bay area. As will be mentioned below, he interpreted when the Duke of York himself was a witness in a Police Magistrate’s inquiry. Apart from the absence of anything positive from which it might be inferred that Kulkarawa was the Duke of York’s daughter, it is, in my view, almost unthinkable that Petrie, who otherwise laid out his reminiscences in great detail – including references to the parents of the girl “crying for joy” on her return – would have omitted to mention that the kidnapped girl was the daughter of the chief of the tribe of which she was a member, had that indeed been the situation.
185 Neither is there any mention of Kulkarawa having a baby with her when she returned to her own tribe after having been with the “Noosa blacks for about two years”. If Dr Macdonald is correct, the baby could not then have been more than about 18 months’ old at the most. It is possible that she (the presumed baby) might have been left with the Noosa tribe when Kulkarawa returned to Brisbane, but, at best for the Turrbal case, it can only be said that there is no evidence whatever of such a baby having been born at the time claimed by Dr Macdonald.
186 Another issue concerns the identity of “Shake Brown”, the Indian prisoner referred to by Petrie as the kidnapper of Kulkarawa. According to Dr Macdonald, this was a man called George Brown. His circumstances were related by Mamie O’Keefe, Librarian of the John Oxley Library in Brisbane, and of the Royal Historical Society of Queensland, in a paper read to a meeting of that society on 22 April 1976, as follows:
George Brown per Ocean 1 arrived on 24 January 1829. He ran in August 1830 for six weeks, in January 1831 for five months, again the following January for another five months, in September 1833 for a year and nine months and in the following January, after only being back for six months, he took off again for one year and three months. He was discharged free on 3 November 1838 and remained at Moreton Bay as a constable, being said to have considerable influence with the aborigines.
If this account is correct, Brown was at large in the periods August – September 1830, January – June 1831, January – June 1832, September 1833 – June 1835 and January 1836 – April 1837. Brown was back in custody in April 1837, the year that Petrie arrived at Moreton Bay as a six year-old.
187 Extracts from the Colonial Secretary’s record relating to George Brown were placed into evidence by Ms Barambah. They included a list of the convicts transported on the Oceans 1 which arrived at Sydney on 30 January 1816, which list included Brown’s name. That was not the occasion mentioned by O’Keefe in her paper to the historical society. The inconsistency is explained by the Colonial Secretary’s record. Brown was convicted and transported twice: once on 25 March 1815 at the Lancaster Assizes, and once on 16 October 1828 at the Quarter Sessions at Windsor. O’Keefe refers only to Brown’s circumstances following the second sentence.
188 On 20 June 1838, Brown petitioned the Governor to be permitted to remain in the colony at the expiration of his sentence. In that petition, he described himself as “a Native of Trichinopoly and a Man of Color [sic] [who] after his Arrival at Moreton Bay absconded and lived with the Aborigines for three years, and havess [sic] a Family by one of them [and] he is anxious to join them on the expiration of his Sentence.” Brown claimed to have “great influence” over the natives and a “knowledge of their language” which would enable him to assist shipwrecked seamen and surveyors if he were allowed to remain. His petition secured the recommendation of the then commandant at Moreton Bay, a Maj Cotton. The petition was granted. On the expiration of Brown’s sentence on 30 August 1838, he was permitted to remain at Moreton Bay.
189 The next aspect of the George Brown narrative was his appointment, on 27 March 1839, as a constable, on the recommendation of Maj Cotton. That recommendation, dated 15 March 1839, noted Brown’s influence over the natives, and his assistance in the capture of bushrangers. It was suggested that Brown might be employed, in the first instance at least, as a “bush constable” with a small salary, shop clothing and rations, with the expectation of a later increase in salary upon the rendering of faithful service. While the Governor approved of the appointment, he did not indicate the amount of the initial salary that should be paid to Brown. That omission was followed up by Cotton in a letter of 3 July 1839, which repeated the writer’s most favourable impressions of Brown. Save for what may be inferred from the above, there is no evidence of the timing or terms of Brown’s actual appointment as a constable, assuming that such an appointment was made at all.
190 J G Steele, in Brisbane Town in Convict Days 1824-1842 (University of Queensland Press 1975), tells of an incident in about 1841 in which a party of aborigines entered a sheep-yard on George Mocatta’s station and stole 70 sheep which, according to Steele, they “proceeded to barbecue … at their camp”. Discovering this, Mocatta’s superintendent, “Cocky” Rogers, rode with a group of armed men into the aborigines’ camp. Brown was amongst the aborigines, and pleaded to be spared. He was spared, but was accused of inciting the aborigines to steal the sheep (and to kill some shepherds in a previous incident elsewhere). He was taken prisoner by Rogers and handed over to the authorities at Brisbane. According to Steele, Brown thereupon “set about trying to incriminate Rogers”, accusing him of shooting the natives. Brown made these accusations in a report to the commandant of 13 January 1842, the result being an expedition to arrest Rogers. In the course of discussing this episode, Steele mentions work which Brown had done in the bush with the authorities in 1839 and 1840.
191 Although the reliable historical record is rather patchy, several conclusions may safely be drawn, if only on the balance of probabilities. First, the three years during which Brown was with the aborigines, and in which he had a family with one of them, were most probably the interrupted period September 1833 – April 1837 referred to by O’Keefe. Secondly, as mentioned above, there is no suggestion that Brown was at large at any time between April 1837 and the expiration of his sentence in August 1838. And thirdly, Brown was thereafter engaged in some capacity by the administration which appears to have given him scope to reside with the aborigines in their camps. Notwithstanding the ambiguous nature of that engagement, it seems that Brown was still regarded as a trusted source of assistance until at least early 1842.
192 Dr Macdonald placed the kidnapping of Kulkarawa in the mid to late 1830s. She did so, as it seems to me, without the benefit of having read the O’Keefe paper. She interpreted the “incident which happened when my father was a young boy”, mentioned in the first sentence in the extract from Petrie’s Reminiscences mentioned above, as a reference to the return of Kulkarawa to the Turrbal camp when Petrie was at “Barambin” with three black boys looking for cows. She said in her evidence that she believed that the story of Kulkarawa having taken by Brown was something that Petrie did not experience first-hand, but had been told by others – it had become “folklore” at the time. This enabled Dr Macdonald to place Kulkarawa’s kidnapping within a period which predated Petrie’s arrival at Moreton Bay, albeit that her return, about two years later, must have post-dated that event. Dr Macdonald also confirmed that it was during Brown’s three-year absence with the aborigines that he had the liaison with Kulkarawa which produced the child later to be known as Saturday Lizzie.
193 Chronologically, it is possible that such a liaison occurred in the period before April 1837 when Brown went back into custody, and that it was only after Petrie’s arrival that Kulkarawa herself returned from the Noosa tribe. The difficulty with that construction of events, however, is the inconsistency between Brown’s recorded history subsequent to April 1837, to which I have referred above, and reports, from more than one source, that whoever it was that kidnapped Kulkarawa met his end at the hands of the natives before he returned, or as he was attempting to return, to the Moreton Bay area. Petrie’s own account is clear enough in this respect. It derives some corroboration from an article which appeared in the Moreton Bay Courier on 6 February 1847, dealing editorially with what was said to be an imbalance in the authorities’ reactions to crimes and atrocities committed by the aborigines and the settlers respectively. In the course of that article, the writer referred to “the case of Sheik Brown and a bullock-driver, who were killed by the natives within thirty miles of the settlement, and whose bones are now bleaching near the road to Messrs Joyner and Mason’s station on the Pine River”. That is consistent with Petrie’s account of the death of “Shake” Brown at a creek which ran into the North Pine River, at the hands of members of the Turrbal tribe.
194 Dr Macdonald’s response to the reported death of Kulkarawa’s kidnapper was to say that it did not happen, and that Petrie was mistaken in this regard. However, while I would agree that George Brown did not die in the circumstances recounted by Petrie, the problem lies on the other side: there is no evidence at all that would sustain the inference that he was the kidnapper of, or had any kind of liaison with, Kulkarawa. What Dr Macdonald’s evidence amounts to is no more than a surmise as to how events might have been.
195 If not George Brown, then, who was “Shake” Brown? According to O’Keefe, there were two convicts called Brown, both of Indian origin, and both frequent absconders. The other one was John Brown, colloquially known as “Sheik” (or some version of that word) Brown. He arrived at Moreton Bay on the Asia 5 on 2 June 1826. I have referred to an item in the Courier about him above. If O’Keefe’s researches are to be accepted, this Brown was not only an absconder but something of what would today be described as a conman. The record of his comings and goings is not so complete as in the case of George Brown, but, to the extent placed before the court, O’Keefe’s account has him back in custody in Moreton Bay (after adventures which appear to have taken him to the west coast of the continent) in May 1834.
196 What immediately stands out with respect to John Brown is the circumstance that his nickname is the phonetic equivalent of “Shake”, the name given by Petrie to the Brown who kidnapped Kulkarawa. In one of her reports, Dr Macdonald said that there was “strong evidence that George Brown frequently used aliases, including ‘Sheik’”, but she referred only to an unpublished manuscript (not of her own) in this regard, which was not placed before the court. I am, accordingly, in no position to assess this evidence or the strength of it. There is no evidence of any contemporary confusion as between the two Browns and, until the evidence of Dr Macdonald in this case, no suggestion of any such confusion in the historical materials. O’Keefe’s paper, which distinguishes between them uncontroversially, was the subject neither of the cross-examination of Dr Powell (who relied on the paper in one of her reports) by Ms Barambah, nor of adverse comment by Dr Macdonald.
197 At this point I should also mention an historical piece by Archibald Meston about Bribie Island published in The Brisbane Courier on 21 September 1891. In part, it read:
In Moreton Bay there were no less than five dialects: “Oondoo,” at Bribie; “Coobenpil” at Lytton; “Balloongan,” at Dunwich; “Noonuccal,” at Amity; and “Gnoogee,” on Moreton Island, the latter differing considerably from all the others. The negatives were: Cabbee, janderr, moonjine, yuggar, and goa. Intermediate tribes formed connecting links of communication. The Brisbane blacks could only talk to those of Dunwich through those of Lytton and St. Helena. The Bribie blacks were the interpreters between the Bay tribes and those of Wide Bay. To show how this system worked, I may mention the following incident:— In the year 1844, an ex-Brisbane convict, a Calcutta half-caste named John Brown, and three others started from Cleveland for Wide Bay in a whaleboat. When leaving they forcibly took away a couple of gins from Cleveland. The Cleveland blacks reported to Lytton, Lytton to Dunwich, Dunwich to Amity, Amity to Moreton Island, Moreton to Bribie, and Bribie to Wide Bay. When Brown arrived in Wide Bay he and all his party were instantly killed, the two gins being sent back unharmed to Cleveland, overland. This was, of course, described as a “brutal and unprovoked murder by the Wide Bay blacks!”
In one of Dr Powell’s reports, she noted that this account differed from that of Petrie “in some details”, but nonetheless considered that there were many parallels as between the two accounts, and that, most probably, they were speaking of the same event. For my own part, I consider that the differences are such as to make such a conclusion, even on the balance of probabilities, problematic. Whether Cleveland was in the area which belonged to what Petrie described as “the Brisbane or Turrbal tribe” is one difficulty. Whether Noosa (Petrie) may be equated with Wide Bay (Meston) is another difficulty. The number of young women involved is a third. The prompt sending of them back to their tribe at Cleveland, as described by Meston, by comparison with Kulkarawa’s two-year sojourn with the Noosa tribe, as reported by Petrie, is a fourth. And Brown’s own apparently harmonious stay with the Noosa tribe, as reported by Petrie, compared with his summary execution upon arrival at Wide Bay, as reported by Meston, is a fifth. A distinct advantage of being able to accept Dr Powell’s evidence that Meston and Petrie were probably speaking of the same incident would be that the incident would then have a date: 1844. However, for the reasons I have given, I am not prepared to accept that evidence.
198 I would find that the Brown who kidnapped Kulkarawa was John, not George. There is nothing, either in Petrie or elsewhere, from which we might give a date to the kidnapping, but, from the report in the Courier of 6 February 1847 to which I have referred, it must have been before that date, most probably (from the tone of the report and the bleaching metaphor used) no less than, say, a year or so before then. On the other hand, the editorial writer in the Courier was complaining about the then current policy of the administration, and providing Sheik Brown’s death as an example of double standards. The further back in time from the date of the report that one goes, the less persuasive would be the ring carried by such a complaint. In my view, the strong probabilities are that Sheik Brown met his end subsequent – probably some years subsequent – to 1840. It should also be borne in mind that the further back one goes in time with the return of Kulkarawa to her own tribe, the less likely it is that Petrie would have been occupied with a group of black boys looking for cows: Petrie did not celebrate his own tenth birthday until some time in 1841.
199 There is nothing in the evidence that would place Kulkarawa’s kidnapping before April 1837. For reasons given above, I think the more likely possibility is that it occurred in the early 1840s. If so, that George Brown was the perpetrator must be regarded as highly improbable. The evidence that the perpetrator was John Brown is, in my view, both stronger and more consistent all round. He met his end on a creek running into the North Pine River as described by Petrie. Although not suggested as part of the Turrbal case, it is possible that, by then, Kulkarawa was either pregnant, or had had a child, by him. At the time of Brown’s death, Kulkarawa was still with the aborigine tribe at Noosa. Some two years after her arrival (with Brown) at that tribe, she returned to the Brisbane tribe from which she had been taken. There is, however, no evidence that, or from which it may be inferred that, she had in fact had a child by John Brown or that she was in any way related to the Duke of York.
200 With respect to George Brown – upon whom the Turrbal application specifically relies – I would go further and make a positive finding on the probabilities that he was not the man who kidnapped Kulkarawa, and that his circumstances were irrelevant to the ancestry of Ms Isaacs.
201 The next aspect of the Turrbal case on ancestry which requires consideration is the submission made against that case that the “Kitty” later referred to, who was, apparently, the mother of Saturday Lizzie, could not have been the same Kitty as was the daughter of the Duke of York. The latter, it was submitted, died in the Duke’s own camp in late 1846 or early 1847.
202 According to what appears to be a comprehensive report in The Moreton Bay Courier for 13 February 1847, the Attorney-General had ordered an inquisition into the alleged shooting of aborigines at York’s Hollow (by common consent the location of the Duke of York’s camp) on 20 December 1846. The inquisition was conducted by the Police Magistrate. What follows is taken from the evidence given to him by various witnesses, as reported in the Courier.
203 The incident had its genesis in an attempt by two police constables, Thomas Connor and Peter Murphy, to apprehend an aborigine called Jackey Jackey, who was wanted for murder. Connor had been told by an aborigine called Jackey that Jackey Jackey was at York’s Hollow. At about 11 pm on 20 December, Connor and Murphy went there in company with Jackey and a prisoner attached to the Survey Department called Henry Grattan. According to Connor’s account (which was corroborated by Murphy), there were 300-400 aborigines at the camp at the time. Jackey was sent into the camp to discover the whereabouts of Jackey Jackey, and found him lying under a tree by himself, a short distance from the other aborigines in the camp. Jackey was then given a rope with a running noose, with the object of securing Jackey Jackey, but the latter was roused and made off. Some shooting followed, which caused the aborigines in the camp to run off. It was not known whether Jackey Jackey was hit: according to Jackey’s account, Jackey Jackey was not hit, and was seen “a little time after in the three-mile scrub”.
204 In the course of his investigation of this incident, the Police Magistrate was told about the circumstances of the Duke of York’s daughter, Kitty. Neither Connor nor Murphy mentioned her, but a number of the other witnesses did. I mention first the Assistant Surveyor, James Burnett. His evidence was third-hand. He said that he had been informed by a Mr Thornton that the Duke of York had told the Sub-Collector of Customs, WA Duncan, Esq, that his (the Duke’s) daughter had been shot by white men, that she had three balls in her and that she was either dead or dying. Burnett told Thornton that he disbelieved it. Burnett enquired of aborigines working for him what was the matter with the Duke of York’s daughter, and they told him that she was very ill from some complaint in the belly, giving Burnett to understand that the illness arose from some circumstance connected with her pregnancy.
205 In a letter published, at the behest of Duncan, in The Sydney Morning Herald on 23 February 1847, and appended to a version of the report of the inquisition by the Police Magistrate, Thornton emphatically denied that he had told Burnett that the Duke of York had told Duncan that his daughter had been shot by white men, and had three balls in her. Thornton said that “about two months back” (ie directly after the events in question) he had told Burnett what the Duke of York had reported to Duncan, namely, that “the woman in question was then either dying or dead in premature labour, caused by fright”, which he (Thornton) had heard from Duncan “a few minutes previously”. Thornton added that, although he might have alluded to a rumour then prevalent that the woman had been shot, he did not attribute such a statement to Duncan.
206 Returning to the inquisition as reported in The Moreton Bay Courier, I refer next to Duncan’s own evidence before the Police Magistrate. He said that he had been approached by the Duke of York with the complaint that whites had fired at the aborigines in their camp, and shot two of them, including Jackey Jackey. He said that the Duke of York had related that his daughter “was taken in childbirth – picaniny tumbled down – and that she herself was very sick”. Duncan sent his messenger with the Duke of York to the camp, and the former returned with confirmation of what the latter had said about his daughter. Duncan also mentioned this matter to the Rev Hanly, who went to the camp the following morning with a view to having Kitty taken to hospital, but the aborigines in the camp “refused to give her up”. A day or two later, Duncan went to the Windmill to see the aborigines, and observed that a number of them were carrying wounds to the legs, which they said arose from contact with trees in running away from the white men in the night.
207 Another witness was a boatman attached to the Customs Department, James Macalister. He was, I infer, the messenger to whom Duncan referred. On the morning after the incident at the camp, he had spoken to Connor and Murphy about the matter. A few days later, the Duke of York came to his house, and complained to him about the burning (presumably by the constables) of the aborigines’ weapons and equipment. He also said that Kitty was “bong”. She had been frightened by the shots and had fallen down (as to which Macalister added “that was what I understood”). Duncan sent Macalister to the camp with the Duke of York. When he got there, Macalister “found Kitty lying down, and her mother sitting at her head”. He asked if Kitty was “in the family way”, and received a shake of the head by way of reply. This he took as an indication that “the pickaninny was dead”. On his return from the camp, Duncan instructed Macalister to take the Duke of York to the Police Magistrate to let his complaint be known. This was done, but the Police Magistrate (according to Macalister) said that there was no dependence to be placed on what was said by the Duke of York, as he was so great a liar. Macalister also accompanied Hanly to the camp the next morning, and confirmed that the aborigines would not allow Kitty to be taken to hospital.
208 These versions of Kitty’s circumstances in the days following the incident on 20 December 1846 need to be considered alongside those given by Jackey and by the Duke of York himself, each of whom also gave evidence to the Police Magistrate. Jackey said (and there is no reason to doubt) that Kitty had been in the camp when he tried to take Jackey Jackey. She was killed “seven days later” when hit with a waddie by an aborigine called Jemmy. It is not clear whether Jackey was a witness to the latter event – save for Jackey’s own evidence, there is no suggestion that he was. He added that, after Kitty had been killed, her body was “put up in a tree with the pickaninny”.
209 The Duke of York (who gave evidence through the interpretation of Thomas Petrie, then aged about 15 years) said that Kitty had run away from the camp at the sound of a gun, that she had been pursued by Jemmy who had hit her with a waddie, killing her, “out of some spite”. Although that suggests approximate contemporaneity as between the incident at the camp and the death of Kitty, the Duke of York also said that Kitty was struck and killed “some time after the night in question”. The Duke of York said that he saw Jemmy strike and kill Kitty. At the time, Kitty was “in the family way”. After her death, her body was put in a tree.
210 These accounts of Kitty’s circumstances have their inconsistencies, of course, but it must be recognised that the Police Magistrate’s main concern was with the allegations of wrongdoing by the constables on the night of 20 December. It seems clear that Kitty was not killed on that occasion. A few days later, she was in the camp, alive but not well. The cause of her indisposition is a matter of uncertainty, but the evidence of Hanly and Macalister, who called upon Kitty within about 48 hours after the incident, provides most obvious support for the thesis that the panic of her flight from the shots fired by Connor and Murphy gave rise to complications with her pregnancy, which might have been interpreted as – and might in fact have amounted to – a miscarriage. Here it must be remembered that the flight occurred in the middle of the night, and that, as observed by Duncan, some of the men had been wounded in the legs as a result of contacts made by them in the course of it. Whether Kitty in fact miscarried on that occasion was never determined, since she refused to be taken to hospital.
211 If the accounts given by the Duke of York and Jackey are to be believed, Kitty’s subsequent death had nothing to do with the events of 20 December; moreover, she was still pregnant at the time of her death. Even at this remove in point of time, there is cause to be sceptical about the accuracy of those accounts. This Jemmy was a notorious lawbreaker, for whose capture a reward had been offered: see Petrie, Reminiscences, pp 166-170. It would have been very convenient for Jackey and the Duke of York to invoke the spectre of a murderous act by Jemmy, if otherwise they were, for whatever reason, disposed to provide an explanation for the death of Kitty which did not involve the conduct of the police constables. However, the very fact of these aboriginal witnesses feeling obliged to devise a story about the circumstances in which Kitty met her end, if that is indeed the construction to be placed on their evidence, presupposes that she had died. Otherwise, it would have been a complete answer to the rumour circulating at the time that Kitty had been shot by the police to produce the lady herself before the magistrate. I cannot see any motive that the Duke of York would have had to tell the Police Magistrate that Kitty was dead if she were not so.
212 There seems little doubt but that Kitty was very unwell in the days following the fracas at York’s Hollow. An apparently serious view was taken that she should be hospitalised. If there were other reliable evidence of Kitty being alive at a later stage, of course, one would hesitate before rejecting it on the ground that she must have died in December 1846 or thereabouts. There is, however, no such reliable evidence. In the circumstances, the likelihood is that the Duke of York’s daughter Kitty did die in December 1846 or thereabouts.
213 For the Turrbal case on ancestry, it is essential that Kitty not have died at that time. That is not because her then death would have meant that her daughter Lizzie was never born: on the Turrbal case, Lizzie was born well before 1846. It is because the presence of Kitty as an actor in her own right much later in the nineteenth century is very much a part of that case. It is therefore, necessary next to consider how Ms Barambah traces her ancestry forward from Kitty, assuming the latter not to have met her end at the time that I think it likely that she did. This is done by a series of seemingly unconnected references in various published and unpublished sources.
214 Chronologically, one commences with the memoirs of Mary McConnel, Memories of Days Long Gone By. She and her husband David McConnel ran a station called Cressbrook, situated in the area of Queensland that now bears that name, and also had a property, and a residence, on the Brisbane River in the area now known as Bulimba. The following passage, taken from p 43 of that book, was controversial in ways to which I shall refer, and should be set out in full:
This will be a good time to make my remarks on the natives generally. They were divided into many tribes, each with its chief, chosen on account of his bravery. The men of one tribe chose their wives from the women of another tribe, and often only secured them by hard fighting. I do not know the number of the tribes (I do not think there were very many), that lived on the land that my husband took up and called Cressbrook, but he set himself at once to make friends with them, and they soon got to like and trust him. He never failed to do what he promised. I know that one or two of the men were treacherous, that they speared cattle, once an imported bull from England, but of course they had no idea of the value of the animal. When the tribe behaved badly my husband would not allow them to come up to the head station, nor give them presents, – a shirt, or red pocket-handkerchief, tobacco or a pipe; when they did no work they got no rations, but little was expected of them, for they loved wandering to the Bunya Mountains, when the nuts were ripe, or to a Corroboree, or a fight; but that was all quite natural. My little Harry as a baby was very fond of one woman, “Long Kitty”; she was very affectionate and liked to have charge of him, so I made her go to the river and bathe; I gave her a comb and a loose red gown, and she would come up very smart, with her hair parted – ‘likit missus’ – and ask for the baby. She would look proudly over the country and say, stretching out her arms, “All this ‘yarmen’ (land) belonging to me.” It did seem hard to have it all taken from them, but it had to be. They cultivated nothing; they were of no use on it.
According to the Turrbal case, “Long Kitty” was the same person as Kitty the Duke of York’s daughter, and the country to which she referred towards the end of the above passage was the Brisbane area.
215 On 18 April 1850, Mrs McConnel gave birth to a son whom she and her husband named James Henry. This was the baby referred to as “my little Harry” in the above passage. For Dr Macdonald, the birth of Harry – reported in the Moreton Bay Courier of 20 April 1850 – provided both a time and a place for the occasion upon which Long Kitty made her sweeping claim to land, as reported by Mrs McConnel. The time would have been the early 1850s, and so much may be accepted. The place, according to Dr Macdonald, was the McConnels’ property on the Brisbane River. The Bulimba area was, apparently, then referred to as Toogoolawah, which was named in the Courier as the place where the baby Harry was born. From there Dr Macdonald supposes that Mrs McConnel and her baby would still have been at her Brisbane property when Long Kitty made the statement referred to. The river in which she is said to have bathed was the Brisbane River at Brisbane.
216 That there was an aboriginal woman called Kitty in the Bulimba area at about this time is, according to Dr Macdonald, corroborated by a piece (by an unidentified writer) in the Queenslander for 26 February 1910 which marked the occasion of the passing of the widow of a James Johnston who (according to the piece) “was for a time in the employment of Mr D C McConnel, and eventually secured a farm of his own at Bulimba ….” The writer noted that “the blacks in the early days were very numerous but friendly, and were very useful in assisting.” One of them, Jimmy Wogen, was a wood collector for the Johnston family, together with “old Kitty and Sally”. Dr Macdonald infers that this was the same Kitty as referred to by Mrs McConnel in the passage extracted above.
217 That they lived in the Brisbane area in the early 1850s and were called “Kitty” are the only grounds upon which Dr Macdonald proposes, as she does, that the woman referred to by Mrs McConnel and the woman who collected wood for the Johnstons were one and the same and were, moreover, the Duke of York’s daughter. In my view, the proposition rises no higher than a matter of surmise, and is not open as an inference from the grounds referred to. There is nothing in the evidence which would sustain a finding on the probabilities that there was only one aboriginal woman around Brisbane at that time who went by the name of Kitty.
218 There is, moreover, a more fundamental difficulty with Dr Macdonald’s position with respect to Long Kitty. On any fair reading, in the passage which I have extracted above, Mrs McConnel was speaking of events which occurred at Cressbrook, not at Bulimba. In her oral evidence, Dr Macdonald accepted that, at least down to the clause “when they did no work they got no rations”, Mrs McConnel was speaking of the natives at Cressbrook. When asked about the Bunya Mountains, Dr Macdonald said that Cressbrook was “quite close”. But when it was put to her that Long Kitty was a woman from the tribe at Cressbrook being referred to, Dr Macdonald responded “I don’t think it’s necessary to link that”, and proceeded to refer to the circumstances, mentioned above, from which she would infer that Kitty looked after Harry at Bulimba. I do not accept Dr Macdonald’s interpretation of Mrs McConnel’s description of these events. It is as clear as may be that Mrs McConnel was writing about events at Cressbrook, and that the land to which Long Kitty sweepingly referred was land at Cressbrook, not at Bulimba. The river in which Long Kitty bathed may well have been the Brisbane River, but the relevant section was nowhere near the claim area.
219 For the above reasons, had there been no evidence of the death of Kitty, the Duke of York’s daughter, in 1846/47, I would nonetheless have remained unsatisfied that that Kitty was one and the same person as Long Kitty mentioned by Mrs McConnel.
220 The next step in the Turrbal argument is to locate the Kitty upon whom they rely (ie the Duke of York/Bulimba Kitty discussed above) at Kenilworth Station in the Mary Valley in the mid-1870s and subsequently. Dr Macdonald concludes that Kitty was at Kenilworth in 1875 because of the following entry in a diary for that year maintained at the station and reproduced, in part, in a publication to mark the centenary of Kenilworth in 1950: “16th August: Longshanks very much broken hearted after his wife Kitty running away from him.” There is nothing in the evidence that would give context to this event. Both names – Kitty and Longshanks – are mentioned with reference to a later period at Kenilworth, but, aside from the name as such, there is nothing to link the Kitty who was at Bulimba with the Kitty who ran away from Longshanks at Kenilworth some 20 years later.
221 So far as I can see, the only reference in the evidence to the whereabouts of the 1875 Kitty (as I shall call the one who ran away from Longshanks) over those 20 years is in a passage in the report of Dr Fisher. He referred to sources (not put into evidence) which mentioned that a settler called Richard Westaway had observed “Kitty herself at his property of Maradan Downs (now Meridan Plains, west of Caloundra)”. Because of the redactions, and because the sources were not tendered, it is not possible to discern the context in which this reference was made, or to assess the reliability of it.
222 The next evidence upon which the Turrbal case relies relates to the late 1890s and the first decade of the twentieth century. In his book Sunshine Coast Heritage, published in 1994, Stan Tutt sets out lengthy extracts from an account of the early days in the Mary Valley written by Bill Sims in 1971, Our Original Inhabitants as I Saw Them. Tutt commences by recounting the story of Sims’ father, Richard Sims, who secured 320 acres, “a portion of Kenilworth station” in the early 1890s. After being destroyed by the floods of 1898, Richard Sims and six other settlers formed a syndicate for the production of cream, the business of which secured “satisfactory returns” for the next three years. Bill Sims was born in 1894, and, as a boy, spent time with the local aboriginal children of his generation. From what he says in Our Original Inhabitants, it is clear that he held the aborigines in high regard.
223 Speaking of the aborigines in the Mary Valley with respect to the period before about 1910 when most of them were taken to the Barambah Settlement, Sims said:
The oldest of the ones I knew was ‘Old Kitty’. She claimed she was in Brisbane when the first buildings were erected at Humpy Bong which was thought to have been the city of Brisbane but was later moved up the river on account of the difficulty in finding moorings. I cannot vouch for the truth of this but Kitty cleared off into the scrub when the rest were taken away.
Lizzie was Kitty’s daughter and her husband was Duncan. Bella was Lizzie’s daughter and her husband Isaac at one time worked for the Fritz family.
It is Dr Macdonald’s opinion that the “Old Kitty” referred to by Sims was one and the same woman as the 1875 Kitty and the “old Kitty” who worked with Sally collecting wood for the Johnstons at Bulimba, mentioned above. Although Sims could not vouch for the truth of Kitty’s claim to have been present when the first buildings were erected at Humpy Bong (in 1824), if the claim is accepted at face value, she would have been old enough to have been collecting wood for the McConnels and might well have been in Brisbane at about that time. Although that would have made her about 90 in 1910 when, according to Sims, “the locals were taken away to Barambah Mission Station [sic – by then it would have been the Barambah Settlement]”, she was not, it seems, too old then to have “cleared off into the scrub”, as Sims related.
224 To this point in the Turrbal narrative, Sims’ reference to the old woman called Kitty having claimed to be at Humpy Bong when the first buildings were erected there is the only, albeit slender, basis upon which to link Kitty the Duke of York’s daughter with the Kitty who made that claim. Aside from the name, there is nothing to connect the Bulimba Kitty with the Mary Valley, and nothing to connect the 1875 Kitty with the claim area. Further, to the extent that the claim made by the Kitty referred to by Sims was to be understood as involving the proposition that she saw, and remembered that she saw, the first buildings being erected at Humpy Bong (the natural sense of what Sims wrote), there must be some doubt over either that claim or Ms Barambah’s case that her Kitty was born in about 1820.
225 Taking all of the evidence and material to which I have referred to date into account, the Turrbal contention that Kitty, the Duke of York’s daughter, was the same person as the Kitty to whom Sims referred can only be regarded as a very frail one. If the resolution of the Turrbal claim turned on that contention, I would be disposed to reject it. However, it is necessary now to turn to the remaining major component of the Turrbal ancestry case, namely, that Ms Isaacs’ father Billy was a direct descendant of the Kitty referred to by Sims.
226 One of the runs in the Mary Valley was Mt Ubi Station, managed by James Hassall from 1898. His daughter Frances was four years old when their family arrived there in that year. Many years later, now Mrs Rowe, Frances was, it seems, guest speaker at a CWA meeting somewhere. A photocopy of what were said to be her speaking notes for that meeting was placed into evidence without objection. They tell of the early years at Mt Ubi Station. They contain a colourful description of an aboriginal woman called “Old Kitty”. It seems that she enjoyed smoking a pipe, but would not always have a light. According to Mrs Rowe, when the men would not provide her with a match, Kitty “would coax by promising to do a corroboree. That was a kind of hula-hula, a great wobbling of her body and chanting”. This account, like that of Sims referred to above, most likely referred to events of the first decade of the 1900s. To the extent that they both refer to an “Old Kitty” in the Kenilworth area at that time, there is an obvious consistency between them.
227 Such consistency appears also from a list of names which was, ostensibly at least, appended to Mrs Rowe’s notes. The following is a scanned copy of the original of the list.
228 Subject to the reservations to which I shall turn in a moment, there is every reason to accept the authenticity of at least most of the names on Mrs Rowe’s list. The names on the list corroborate what was said by Sims, and vice-versa. Sims refers to “Billy and Arthur Monkland”, who were of an age with him. They are also referred to on Mrs Rowe’s list (although the former is here “Willie”), bracketed with two who may have been their sisters, Doreen and Maryann, and put alongside the note: “Monkland Joe [and below that] Lucy”. Sims refers to a “Matty Davie”, who appears to have been very athletic, to his three sisters Maudie, Ethel and Mabel and to their parents Davey and Annie. They (except Mabel) are referred to as a group in Mrs Rowe’s list (which gives their surname as “Davies”). Sims relates that, when Mabel was a baby, Annie “decided to change husbands” and married one Andrew Ball. The words “Annie Andrew” appear on Mrs Rowe’s list. Sims mentions another two whom he describes as a “couple”, namely, Darby and Polly. He says that they worked on Kenilworth station in 1875. The words “Darby & Nellie” appear on Mrs Rowe’s list. There is nothing in either source which would resolve the question whether Darby’s partner was Polly, Nellie, had been Polly but became Nellie, vice-versa, or someone else altogether.
229 Turning to the people more directly of interest, both Sims and Mrs Rowe refer to Kitty, Lizzie, Duncan and Isaac. What is to be made of the relevant entries is far from clear, and has become the subject of intense controversy. This issue is critical in the Turrbal case on Billy Isaacs’ ancestry.
230 The Turrbal case is that the last two sentences in the extract from Sims set out in para 223 above are to be understood as follows. Kitty had a daughter called Lizzie. Lizzie had a husband called Duncan. Lizzie and Duncan had a daughter called Bella. Bella had a husband called Isaac (actually, Isaacs as a surname, an aspect to which I shall come presently). The Turrbal case is that the second and third lines of Mrs Rowe’s list are to be understood as follows. The Duncan referred was Duncan Crow. He was Lizzie’s husband and Kitty’s son-in-law. The entry on the third line that reads “Jim Isaac” was a reference to Jim Isaacs, and the entry on the same line that reads “Bella Crow” was a reference to his wife, identified by her maiden surname.
231 As mentioned above, Ms Barambah said in her evidence that Jimmy Isaacs was also known as Isaac Crowe. Whether or not this was to lay claim to an “Isaac Crowe” who died on 19 March 1913 as part of the Turrbal history is now moot. But there was such a man, and a certified copy of his death certificate is in evidence. His widow was called Bella. The Turrbal contention was supported by Dr Macdonald both in her anthropological report of June 2010 and in her final report of November 2013. However, Isaac Crowe’s death certificate gives 37 as his age in years at the time of his death, which would mean that he was born in about 1876. Billy Isaacs was born in about 1880, and could not have been the son of a man born in about 1876. But the death certificate also shows that Isaac Crowe was 39 years old at the time that he married Bella. Clearly one of the ages on the certificate was wrong. In her final report, Dr Macdonald took the position that the age of death was wrong because the 39 years was a mistaken reference to the length of time that Isaac was married to Bella. Under cross-examination, Ms Barambah said that Isaac Crowe, her great-grandfather, was born in 1857. She said: “I honestly believe that’s my great-grandfather”.
232 Material annexed to Dr Powell’s supplementary report, however, provides strong support for a finding that Isaac Crowe was indeed aged 37 years at the time of his death in March 1913. There is an application, dated 11 March 1913, for his admission to the Diamantina Hospital for Chronic Diseases which records his age as 37 years. The application also gives 32 years as his age when he married Bella. This document was not put to Ms Barambah when she was under cross-examination, but it was put to Dr Macdonald, in the course of the anthropologists’ concurrent evidence, by counsel for the State. By then, Dr Macdonald had read Dr Powell’s supplementary report, and had reached the conclusion, based on the application for admission, that this Isaac Crowe could not be Billy Isaacs’ father. She said:
Can I perhaps short cut this by saying that I’ve since seen that hospital admission record with it, and I have satisfied myself that Jimmy Crowe is not – sorry, Isaac Crowe is not Jimmy Isaac. I have come to the conclusion that they are two different people.
As will become apparent, however, the question is whether there ever was a person called Jimmy Isaacs.
233 Isaac Crowe’s hospital admission application gave Kelly as his wife Bella’s maiden surname. It is, therefore, established with a high degree of probability that there was a man called Isaac Crowe whose wife was Bella, nee Kelly, and who died at the age of 37 years in 1913. In Dr Macdonald’s more recent view, however, there were two Bellas, and the Isaac Crowe who died in 1913 was not the Isaac who married Lizzie’s daughter Bella. Dr Macdonald supported the contention of Ms Barambah that this Bella’s maiden surname was Crowe (or Crow) because that was the surname of her father, Duncan.
234 At this point it is necessary to return to the list of names in Mrs Rowe’s notes. It was a central part of the Turrbal evidentiary case on ancestry. Dr Macdonald used it as a basis for her conclusion that the “Duncan” referred to by Sims as Lizzie’s husband was Duncan Crow, and that the “Isaac” referred to by Sims was the “Jim Isaac” seemingly mentioned by Mrs Rowe in her notes. Although it was his wife, Bella, who provided the ancestral link (via Kitty and Lizzie) from the Duke of York, it was the surname “Isaacs” which, it was said, grounded the inference that Billy Isaacs was their son. As the evidence emerged, however, it became clear that Dr Macdonald’s (and Ms Barambah’s) interpretation of Mrs Rowe’s list was most probably wrong.
235 Although the list, as originally tendered, was part of the photocopy referred to in para 226 above, it transpired, when the original was later produced, that the list was on two small sheets pasted on to a piece of unlined A4 paper. The upper sheet, 147 mm in width x 119 mm in length, was a section of lined paper seemingly cut off at the bottom. This sheet went down to, and included, the line on which the entry “Annie Andrew” appears. It did not include the entries on the left, beneath and in line with the asterisk, which were editorial additions made by some person unknown at some unstated time. The lower sheet, 94 mm in width x 133 mm in length, was a piece of blank, heavier gauge, unlined paper. It commenced with the words ‘Kitty – Saturday Duncan” and went down to, but not including, the note “Recorded by Frances Rowe [etc]”. It did not include the notations to the left of the list – that in the box (“Hand writing [etc]”) and what follows directly below. Having been photocopied for the purpose of the exhibit, the fact that these two sheets were not a single page was not then self-evident.
236 After the evidence in the case had closed, but before final submissions were made, I permitted the Yugara applicants to re-open their case to tender a report, dated 24 March 2014, by Trevor Clinton Joyce, a forensic document examiner. Mr Joyce was not required for cross-examination, and no question was raised as to the sufficiency of his qualifications and experience for the purposes of his report. The subject-matter of the report was the original of Mrs Rowe’s list.
237 In his report, Mr Joyce stated that the pasted upper sheet of Mrs Rowe’s list contained at least three writing inks, as follows:
Ink A, the following names:
Darby & Nellie
Duncan & Kitty
Isaac and Bella
Joe & … Monkland
Willie Arthur Maryann
Davy & Annie Davies
Mattie Maudie & Ethel
Mentone [?] Jack
Andrew Polly
Ink B, the following names:
On the first line, “Saturday”
At the start of the second line, “Crow”
At the end of the second line, “Lizzie & Bella”, and above that, “Sat”
At the start of the third line, “Jim”
On the third line, an apparent overwriting of the first “a” in “Isaac”
At the end of the third line, “Crow Jackie”
On the fourth line, “Lucy”
At the end of the fifth line, “Doreen”
At the end of the seventh line (ie after “Ethel”), “(May)”
At the end of the ninth line, “Darby & Nellie”
The remainder of the sheet, ie “Peter … Andrew”
Ink C, the word “Piper” at the end of the fourth line.
Mr Joyce was unable to express a firm view about the ink used to write the word “Lizzie” in the top, right-hand, corner of the sheet, but said that “it appears that two inks have been used”.
238 What is of foremost significance in the report of Mr Joyce is the circumstance that the word “Jim” was written in an ink different from that used to write the word “Isaac”. Only slightly less significant is the circumstance that “Isaac” was one of a list of names written in Ink A, which list has a natural left alignment which does not include the words written in Ink B, “Crow” and “Jim”. It is possible that, when she was originally writing this list, Mrs Rowe used different pens, but it seems clear that she did not write the full name “Jim Isaac” at the one time, with the words in their natural order. It is a strong, not merely a probable, inference that the word “Jim” was inserted subsequently.
239 It is here that I must refer to the evidence of Elvira White, Mrs Rowe’s granddaughter. She obtained her grandmother’s notes when going through the papers of her mother, Jennifer. She said that Jennifer had “a very distinctive handwriting” and, with respect to Mrs Rowe’s list, that “that word ‘Jim’ just jumps out at me as being her handwriting”. She said she was certain of it. This evidence was given without objection, and was not seriously questioned by any party. I would find, therefore not only that the word “Jim” was added subsequently to the names written in Ink A, but also that it was written not by Mrs Rowe, but by her daughter (who was, I would infer, born some years after the events to which the notes refer).
240 Mrs White was not so certain that the word “Crow”, at the start of the second line of the list, was in her mother’s hand. She thought it might be in her father’s hand, but she also allowed for the possibility that it was her grandmother’s writing. Mrs White did not have the advantage, which the court has, of the report of Mr Joyce. The fact that “Crow” and “Jim” were written in the same ink – as were a number of other entries which, by their placement on the sheet, have the appearance of being later additions – justifies the inference, which I draw, that “Crow” was written on the sheet by Jennifer at some point subsequent to her mother having made the original list using a pen with Ink A. I also infer that the entries written in Ink B were added by Jennifer as a result of conversations which she had had with, or knowledge which she had obtained from, her mother. There seems little doubt but that, to the extent that entries were made by Jennifer, her mother must have been the factual source of them.
241 The question remains: if the first two entries on the third line of this list were not a reference to a man called “Jim Isaac”, what were they? To address this question, it is convenient next to turn to evidence that was given under cross-examination by Mr Serico. As mentioned earlier in these reasons, his mother Evelyn Serico was the daughter of Lucy Monkland, nee Crowe. That Lucy became a Monkland is consistent with Mrs Rowe’s jottings, which mention “Joe and Lucy Monkland”. Lucy’s parents were Maggie and Jim Crowe, whose other children were two boys, named Isaac and Jim. Mr Serico explained that Isaac came to be named such because the station proprietor at Kenilworth was an Isaac Moore. He treated the aborigines who worked for him very well and was much respected by them.
242 If the evidence of Mr Serico is to be accepted – and no suggestion was made that it should not be – Isaac was the first name of a member of the Crowe family, whose siblings were Jim and Lucy. An alternative interpretation of the first two entries on the third line of Mrs Rowe’s list is that “Jim” and “Isaac” were the brothers Crowe. We know (from Sims) that Isaac was Bella’s husband, and here there is, on Mrs Rowe’s list, the names “Isaac and Bella”. Beneath that is a reference to “Joe and Lucy” who were, in all probability, Lucy Crowe and her husband Joe Monkland, as mentioned by Mr Serico. An interpretation of Mrs Rowe’s notes that must be regarded as strongly viable, in my view, is that, initially (in Ink A), she wrote a list of the names of people associated with each other, eg by marriage, using their first names, and that, later, her daughter (in Ink B) added such extra details as were then known to her, including the name of the Crowe who had not previously been mentioned, Jim. Thus Jim’s name was added on the second line because he was Isaac’s brother.
243 To this point in my consideration of the matter, I consider it quite unlikely that Mrs Rowe was referring to a man with the name “Jim Isaac”, the husband of Bella. I consider it more likely that, consistently with Sims, she was referring to the husband of Bella, but that the man concerned had “Isaac” as his first name. He was not called “Jim”: his brother was.
244 At this point, I should return to Bella, whose circumstances I left at para 233 above. As mentioned, the Bella referred to by Sims was the daughter of Duncan and Lizzie.
245 Was Duncan’s surname Crowe (or Crow)? There are two indications that would suggest an affirmative answer to this question. The first is the presence of the word “Crow” at the start of the second line in the uppermost section of of Mrs Rowe’s list. As mentioned above, this word was inserted subsequently. What was meant by it? Without that word, the first couple would simply have read “Duncan and Kitty”. This raises the possibility that Duncan was Kitty’s husband, which, it must be said, is open on the way Sims expressed the penultimate sentence in his recollections set out in para 223 above: perhaps the “her” was a reference to Kitty, not Lizzie. No-one suggested that this sentence should be understood this way. For consistency with the way the final sentence was understood by all parties (that is, that Isaac and Bella were husband and wife), the penultimate sentence can only be read as a statement that Duncan was the husband of Lizzie. It does, however, have the somewhat odd consequence that Mrs Rowe, who otherwise seems to have listed couples, mentioned Duncan in conjunction with his mother-in-law. As mentioned above, someone, probably her daughter Jennifer, later added Duncan’s wife and daughter on the same line. Subject to these confusions, I would accept that the word “Crow” at the start of the second line does provide some, though not particularly convincing, support for a finding that that was Duncan’s surname.
246 The second indication is a record from the Gympie Cemetery Trust of the burial in 1907 of the body of one “Duncan Crow”. This is not a death certificate, and no other details of the deceased are provided. Dr Macdonald said that it was the practice for aboriginals who desired to have their deceased relatives’ bodies interred in a cemetery to go to Gympie for the purpose. There was, she said, every reason to believe that this Duncan Crow came from the areas around Gympie, and that the burial record proves at least that there was someone in those areas called Duncan Crow who might well have died in 1907. I accept that proposition so far as it goes, but it justifies nothing more than surmise that the deceased man referred to was Kitty’s son-in-law.
247 As against these considerations, Dr Powell thought it no less likely that Duncan’s surname was Kelly. We know that Isaac Crowe – the Isaac now eschewed by Dr Macdonald – died in 1913. He left a widow called Bella, whose maiden surname was Kelly and whom he had married in 1908, at Imbil. Queensland Government removal records for 1915 show that, at apparently the same time in 1915, a Lizzie Kelly and a Bella Crowe were removed from Imbil to the settlement at Taroom. Dr Powell’s contention was that there is every likelihood that these women were Isaac’s mother-in-law and widow: mother and daughter. That too is a matter of surmise, but the time, place and names make it, in my view, an attractive one. Moreover, it corresponds with the interpretation given to the available records by Dr Fisher, whose report was tendered by Ms Barambah:
In 1915 [redacted] Bella Crowe was transferred north from Imbil, one of the family bases in the Gympie district, to the Taroom Settlement (est. 1911), west of Maryborough. According to the official register, her mother Lizzie Kelly, formerly Mitchell (aka Saturday Lizzie) and Polly Carver were likewise removed as well as Jerry Carver and Frank Imbil.
On this view, the married surname of the Lizzie mentioned by Sims, and the maiden surname of her daughter Bella, was Kelly.
248 Also in evidence is a death certificate for one Alexander Sandow who died in May 1958 at the age of 60 years. He had been born in “Tiaro or Childers” to Tom Sandow and Bella Kelly. Dr Powell’s view was that Bella Kelly “was most probably married first to Sandow and then to Isaac Crowe”. Whether or not Alexander Sandow’s mother was ever married to his father, the fact is that he was born in about 1898 and a Bella Kelly married Isaac Crowe in about 1908. The course of events proposed by Dr Powell is, therefore, viable, but I would not go so far as Dr Powell in describing it as most probable. Dr Macdonald accepted that this Bella was most probably the mother of Alexander Sandow, but she contended that the latter’s birth at Tiaro or Childers made it improbable that the former was the same Bella as referred to by Sims and Mrs Rowe (who spoke of personalities in the Kenilworth / Ubi Station area). The evidence would not justify me in describing Dr Powell’s thesis in this respect as improbable, but I would agree with Dr Macdonald to the extent that she contends that the prospect that the Bella presently of interest was originally the partner of Tom Sandow cannot be regarded as anything more than surmise.
249 But, on balance, the other evidence to which I have referred justifies a finding on the probabilities that Saturday Lizzie’s married surname was Kelly, and that this was, therefore, the maiden surname of her daughter Bella. Here I refer particularly to the evidence of Dr Fisher, Ms Barambah’s own witness. We know that the widow of Isaac Crowe, who died in 1913, was Bella, nee Kelly. The strong probabilities are that this couple were the same Isaac and Bella as were referred to by Sims, and as were mentioned in Ink A by Mrs Rowe. Billy Isaacs could not have been their son.
250 In the result, the position reached is that the court knows nothing of the parents of Billy Isaacs, or of either of them. Once the possibility of him having been the son of Isaac and Bella Crowe is dismissed, there is not even a hypothesis which might point to the identity of his parents. There is nothing which might link him to the Lizzie, or her mother Kitty, upon whom Ms Barambah relies. It is not as if we know, or might infer, that Billy’s parents were connected to the claim area in some way other than through the claimed lineage discussed above, since all we know, objectively, is that Billy was born at Goomeri. Absent any knowledge of who these parents were, this limited information is quite unhelpful for the Turrbal case.
251 To the extent, therefore, that the Turrbal case on ancestry would have it that the old woman called Kitty who undoubtedly lived in the Mary Valley in the later years of the nineteenth century and the earlier years of the twentieth was the Duke of York’s daughter, I would find that Billy Isaacs was not descended from her. For that reason alone, if for no other, to the extent that it is based on objective, historical, evidence, Ms Barambah’s claim that her mother was descended from the Duke of York must be rejected.
252 But, as mentioned above, there are other reasons. First, it is not established that the Duke of York’s daughter Kitty was one and the same as the Kulkarawa who was kidnapped by a convict called Brown. Secondly, there is an apparently reliable historical report of the death of Kitty in late 1846 or early 1847. Thirdly, if Kitty did not die then, and if it matters (and I do not think it does), it is not established that she was the same Kitty as the one who worked for the McConnels in the 1850s. Fourthly, again if it matters (and again I do not think it does), it is not established that this was the same Kitty as the 1875 Kitty who deserted Longshanks. And fifthly, if Kitty did not die in late 1846 or early 1847, it is not established that this was the same Kitty as was an old woman in the Mary Valley in the 1890s and the 1900s.
253 At base, the difficulty with Ms Isaacs’ understanding that she was, in part at least, of Turrbal ancestry is that, from what is known objectively, her own father, an essential link in the ancestral chain, most probably did not have the ancestry required for the case to be viable. It is most unlikely that Billy Isaacs was descended from the Duke of York. There may have been an explanation for why the objective record is misleading, and for why Ms Isaacs’ understanding should be preferred, but neither the evidence nor the submissions in the Turrbal case contains such an explanation. I am not prepared to put aside the objective evidence in favour of the less reliable, and generally more equivocal, oral history set out in the affidavits of Ms Isaacs, of her children and of her friend Nurdon Serico.
254 For the above reasons, I reject the Turrbal case on biological descent.
The Yugara Ancestry Case
255 I shall address the Yugara ancestry case by reference to the list set out in para 17 above, commencing with the people identified in item (i). They are said to be amongst the forebears of Des Sandy and his sister Pearl, each of whom is an applicant in the Yugara case.
256 Des and Pearl Sandy’s parents were Alfred, or Albert, Sandy and his wife Daisy, nee Murphy. There is an ambiguity about the father’s first name, the details of which do not need to be explored: for present purposes, I shall refer to him as Alfred. He was born in 1912 or 1913 (he died on 26 February 1965 at the age of 52 years). According to his death certificate, he was born in Beaudesert, but Mr Sandy’s affidavit evidence was that his father was born in Tabooba, and I gathered from his oral evidence that this was to be taken as a reference to the general area around Tamrookum and Tabooba. Alfred married Daisy in about 1940 at Beaudesert.
257 Alfred’s father was Lindsay Sandy, who, with his twin brother Norman, was born in about 1883 (Lindsay’s death certificate shows that he died on 27 March 1959 at the age of 76 years) at Southport. Lindsay married Lily Williams at Beaudesert on 5 August 1911, and they lived in that area until some time in the 1950s. Lindsay was at Coopers Plains when he died in 1959. Lindsay’s ancestry is a subject to which I shall return below.
258 Lily Williams married Lindsay Sandy when she was 23 years of age. She was, therefore, born in about 1888. Her parents were William and Emily (nee Logan) Williams. Emily was born in about 1853 (she died on 24 June 1929 at the age of 76 years) at Waterford. She married Williams at Beaudesert (on an unknown date, but I note that she was 24 years older than the oldest of the 12 children who survived her). In evidence is a photograph of William and Emily, dated “c.1910”, in the caption to which it is noted that they were “from Tamrookum”. Des Sandy agreed that this couple lived and had their family in the Tabooba – Tamrookum area. It is recorded that Emily died at Tabooba, and Mr Sandy said that both she and Williams were buried at the Catholic church at Tamrookum.
259 According to the death certificate for Emily Williams, her father was “John Logan, Labourer”. Her mother was “Nellie”. The Yugara applicants claim that John Logan was also (indeed, more commonly) known as “Jackey Jackey”, as “King Jackey”, as “Bilinba”, and as “Bilin Bilin”. I shall refer to him as “Jackey Jackey”. Subject to some uncertainties as to identity to which I shall refer, there was a man known by these names, and he did have a wife, the first of three, called “Nellie”. So far as I can see, there is no documentary record – whether official or otherwise – to link this man with Emily’s father John Logan. Dr Powell accepted that they were one and the same. With respect to Jackey Jackey himself, there is no shortage of references in the printed materials that were put before the court, but, on the specific point whether he was Emily’s father, the only printed evidence, so far as I can see, is the following passage on p 65 of an attractive coffee table book written by Rory O’Connor, published in 1997, The Kombumerri: Aboriginal People of the Gold Coast:
Bilin Bilin (also called Kawae Kawae, anointed by authorities Jackey Jackey – King of Logan and Pimpima, and also called John Logan) was a leader amongst the Yugambeh and Kombumerri people during a time of tremendous change. Born in the early 1800s, he would have reached adulthood before the first permanent white camps in the area.
Although he provides references for some of his subsequent statements in relation to Jackey Jackey, O’Connor does not cite the source for his information that this aboriginal leader was also known as John Logan. Otherwise, it seems that Dr Powell proceeded only on the beliefs of the members of the Sandy family with whom she conferred. She was not, however, challenged on this aspect of her evidence and, because of the way the case was run, I propose to proceed on the basis that John Logan was Jackey Jackey.
260 That being so, it may be taken as established that Jackey Jackey was the father of a baby girl who was born at Waterford in about 1853. The mother was Jackey Jackey’s first wife Nellie. Making the usual assumptions, it may be inferred, therefore, that Jackey Jackey lived, or at least was present, in the Waterford area at that time.
261 From there I would refer to a 1998 monograph by Neville Love held in the Beaudesert Museum Library entitled Christmas Creek Valley. Love’s sources were, apparently, his mother (who lived in the area now known as Hillview from 1893 to about 1957) and (probably via his mother) her father E W Hill, who had a farm and then a grocery shop in that area. Love said that the first settlers arrived in that area in 1875. There was, he said, a small flat area on a hill out of flood reach, overlooking Widgee Creek, where the aborigines, who “were roaming the Christmas Creek valley before white settlers arrived”, had their camp. They called this area “Ngulaar Boanoloa”, meaning “flood rises”. The camp was “a rather big camp with permanent residents and others staying there for a few days en route south to the border or to Beaudesert”. In this respect, it is apparent that Love spoke of what his mother had actually observed, which would place the events subsequent to 1893.
262 After referring to the friendly relations between the aborigines and the settlers in the Christmas Creek area, Love continued:
Also living in the district in that particular era, were a number of full blooded Aborigines, both wild and semi civilised. Among them were Naygir (Williams), Bilinba (Jacky), Boonbeal (Culhan), Eygaa (Joey Hagger), and according to Joe Culhan these were the four last elders of the tribe. With them was Bundai (who never became civilised) and Muyuwaayan or Moewaasyan, Fred Yarry and his family. Also there were the families of the elders and of Maryann, Billy Price, Billy Mitchell, Fogarty, Coolwell and Clark.
It is not known who Love’s informant “Joe Culhan” was. On the Yugara case – and this is not seriously contested – the “Bilinba (Jacky)” here mentioned was Des and Pearl Sandy’s great great grandfather. He was, on this information, an elder of the tribe which based itself at the camp at Widgee Creek.
263 Next I would refer to an item by F W Hinchcliffe in The Beaudesert Times for 12 June 1931. To understand what Hinchcliffe there said, however, it is necessary first to mention two items which appeared in the Brisbane Courier in March of that year.
264 The first item, from an unidentified correspondent, was published on 20 March 1931, and was in the following terms:
King Jacky.
I was interested in Mr. Hugh G. Hood’s letter relating to the origin of the word Degilbo, which appeared in Wednesday’s “Courier,” writes a correspondent. The writer makes reference in his letter to an old blackfellow named King Jacky, who always wore a brass plate around his neck; a talisman given to him by the late Mr. W. J. Walsh. King Jacky was a well-known identity of the Logan district, to which his customary wanderlust led him in periodical visits to the abo. camps that were scattered throughout the district. When near the century mark he died in a black’s camp on a Logan grazing property known as Buddai. At that time Buddai was owned by my father, who did everything in his power to prevent the passing of King Jacky. It is generally believed that the old abo. died with the brass plate around his neck, but that fact is not vouched for, as the morning following his death all signs of the camp and its occupants had vanished into thin air, and the resting place of King Jacky is probably among the surrounding mountains, and known only to the surviving members of his tribe.
A reader of this note in the Courier would infer that the King Jacky referred to was peripatetic indeed: Degilbo is to the west of, and on about the same latitude as, Maryborough, while Buddai was a grazing property on Christmas Creek, which rises in the Jinbroken Range and joins the Logan near Tamrookum, about 20 km south of Beaudesert.
265 The second item was a letter from one A Rick, which was published on 25 March 1931:
Sir – I have read with great interest Mr. Hugh G Hood’s letter in Wednesday’s “Courier” regarding the word Degilbo, and the mention of the name of old King Jacky, and another interesting letter in to-day’s “Courier” mentioning the old fellow, who was well known by many in the Logan and Albert. King Jacky also was well known in Waterford, and camped here for many years only leasing for short spells. He was a fine, honest character, and was respected by the then schoolchildren and the adult residents alike. His little tribe had their camp in Waterford in the early days, and set an example of honesty to many of the whites. The last time I saw the old chap was about 1897. He was then by himself suffering from an incurable disease, and camped at the creek in Waterford. He mentioned that all the others were dead. Some of the others of the tribe who made Waterford their home were Johnny Logan, who claimed King Jacky as his father, and was a good singer and horseman; Minipy Rawlings, a king with a brass plate; and “Lumpy Billy” who always wore a red handkerchief around his face and had a cancer on the jaw, from which he died. He was a great boomerang thrower and the navvies employed on the Brisbane to Beenleigh railway construction work in 1854 gave him many a coin to see him throw the boomerang in front of the Waterford Arms Hotel on Sunday afternoon. Nangie, another of the tribe I knew well, he was a great horse-breaker and rider on racecourses, and was well-known in the Logan and Albert districts. He died in Waterford years ago, and his last resting place in Mr. Schneider’s paddock is about 100 yards from my place. Among the gins were Nellie, King Jacky’s wife, Mary Ann, and Lizzie, all died long ago. – I am, sir, &c
A. Rick
266 That brings me to Hinchcliffe’s piece in The Beaudesert Times. Relevantly to the present issue, he said:
“Jackey Jackey.”
King of the Logan and Pimpana.
(by F.W. Hinchcliffe).
Re the contents of a letter in a recent metropolitan journal, from Mr Hugh G. Wood, of Urangan, in which he mentions in reference to the “Degilbo,” – that a Mr Hastings (who had been an employee of that station) has got the information from an old blackfellow ([named] King Jacky, who wore a plate given to him by the then owner W. H. Walsh), and that the station was known to [be] there, before 1855 when the then house was burnt down.
….
Two correspondents, who since have made reference to the above-mentioned writer (Hood) is A. Rick, Waterford, and the other from Buddai, Upper Logan. Both these are wrong in confusing the Degilbo King Jacky with that of the Lower Logan Jackey, and more especially borne out by the year date. The Logan royalty did not attain plate dignity until about 1875, although succeeding to the headship of the tribe about 1863. His brass plate read: “Jackey Jackey King of the Logan and Pimpana.” This confined his aboriginal domain. Brisbane was the nearest point that this son of the soil was ever to Degilbo. And I have never heard, even from himself, that he was ever further up the Upper Logan than Beaudesert. To this later place he did not go until 1887 when a “railway free pass” was obtained for him. His visits to Beaudesert was to see his daughter by his first wife Nellie. He had married thrice. This daughter had married about 1878 with one of the Beaudesert clan: and with her went several orphan children of late members of the Logan tribe who had placed then under her care. Old Coolum (Beaudesert) became head of this lot about that time. Their offsprings are fairly numerous to day and well respected residents of that part.
It has always been understood that both Jackey Jackey and Billy had passed their last days at Purga Deebin Creek. Billy came and told me that he and Jackey were too old to travel about and that Mr Meston had at last caught them to go to Deebin. They were always frightened that Meston would send them to Fraser Island. ….
Two, who were only periodically with the tribe up to the eighties, were Mark and Harry. They were King Jackey’s brothers. Mark was a fairly good singer. Both he and his brother in their young days were attracted towards the city where they learnt to speak English passably. At a corrobberee to which the first Waterford settlers were invited in the later part of 1864, and held in the Broomhill paddock – this was always their camping location – at which aborigines from the now Pimpana, Coomera and Tamborine districts took part to the number of about 300…. Johnny Logan was Jackey’s son by the second marriage. None of the other aboriginals mentioned by Mr Rick were of the Logan tribe.
Minnippi Rawlings, King of Tingalpa, was on his plate and his territory adjoined that of the Logan black’s domain…. Minnippi and Jackey Jackey on return from one of their trips to Brisbane, got as far as the north side of Waterford, when the former took sick and they decided to camp in Eden’s disused house, which was the first hotel at Waterford and in the early coaching days was a change station…. Minnippi died after a few day’s [sic] illness. His body was disposed of at night by Jackey who never divulged how or where, and no one has ever found his resting place. It is only a fluke whenever a burial of and by an aboriginal is found out. All writings on the subject notwithstanding. The Buddai King Jackey’s resting place is not known: and also took place at night. The Jackey mentioned by Buddai as having died at that place – his father’s residence was evidently of a tribe from over the border to the head of the Clarence, who died when on this side of the range (what was known in the early Tulemon station days as the Yellow Waterholes) which was a favourite camping place of any of those who came from the other side. Minnippi was Jackey Jackey’s brother-in-law – his third wife, Sarah. She had married into the Coomera tribe, and had one child, Lizzie. Her lord and master had been dead about eight years when she became Jackey’s last queen.
Billy, was of the Dyambarin (Albert River tribe)…. The prefix “Lumpy” was given to him on account of having a tumerous growth under his jaw, which in no way impaired his health – not a cancer – which also served to distinguish him from the other “Bill”, who now and again rounded with them. Billy was King of the Albert.
….
Disease, in the accepted term, did not in any way account for the death of any of the Logan tribe.
267 According to Dr Powell, Hinchcliffe spent some time before the turn of the century collecting examples of the languages used by aborigines in the lower Logan River area, and got to know them. Dr Powell placed some store by a sentence in an introductory passage to a word list which Hinchcliffe had published in The Queenslander on 27 December 1890:
I append a list of general words, which are in use among the Logan blacks, whose district extends from Ipswich to Brisbane, and from Beaudesert to Pimpama and Moreton Bay.
Dr Powell used this passage, and the credibility which it attracted from having been written by Hinchcliffe, to support the proposition that the group of aborigines with which Jackey Jackey was associated inhabited an area that was not confined to the Logan River area as such, but which extended northwards to Brisbane and Moreton Bay.
268 While on the subject of language, Dr Powell referred also to the Lauterer paper which I have mentioned in para 58 above. In that paper, as an example of proper names which had no meaning, Lauterer gave the following:
The old ‘King of the Logan and Pimpana,’ Jackey-Jackey, who is often to be seen in Stanley street (suffering from cataract in both eyes, poor fellow!) is called by his tribe Kawae-Kawae (Sweet-Sweet) because, more than forty years ago, he uttered this word when he tasted the first glass of sweetened rum.
On 24 November 1894, there was published in The Queenslander a report of a further presentation given by Lauterer to the Royal Society, this time about the songs sung by the aborigines. He referred to a two-line song of which, he said, Jackey Jackey was very fond, which his (Jackey Jackey’s) father was supposed to have “invented” 60 years previously.
269 I refer next to an extract from the Brisbane Courier of 5 July 1930, being an article (the author of which was not identified in the extract) on the subject of the “Phenomenal Growth of Holland Park”. It was there noted as follows:
KING BILLY AND QUEEN MARY
In the early eighties a handful of aboriginals, under the rule of “King Jacky” and “Queen Mary”, with “Lumpy Billy” as one of the chief subjects, held sway on the creek at the approach of the Holland Reserve. Although they were harmless, few residents ventured abroad after dark, as out of the black night an aboriginal would jump on the passer-by, shrieking “Baccy, baccy.” Old residents still have vivid memories of a corroboree held at the creek by some 200 to 300 blacks who came from as far as Ipswich. The corroboree lasted a fortnight, and hundreds of people travelled from Brisbane to witness it. Shortly after that great event the blacks shifted camp and never reappeared in the district.
In the opinion of Dr Powell, this record provides a basis for the view that Jackey Jackey’s domain extended as far as Brisbane.
270 Dr Powell attached to one of her reports a return of the listing of aborigines to whom blankets had been distributed at Cleveland in May 1882. The names on the list included “Jacky Jacky” (according to Dr Powell, Jackey Jackey), “Nelly” (according to Dr Powell, his first wife Nellie), “Tommy Rawlins” (according to Dr Powell, Minnippi Rawlins, Jackey Jackey’s brother-in-law), and “Mark” and “Big Harry” (according to Dr Powell, Jackey Jackey’s brothers Mark and Harry). Allowing for some slight variations in spelling, these identities are corroborated by Hinchcliffe’s letter to The Beaudesert Times of 12 June 1931.
271 Hinchcliffe’s report that Jackey Jackey and Lumpy Billy were removed to the Deebing Creek Mission in their old age derives some corroboration, at least in relation to the former, from a photograph which is held by the John Oxley Library (Negative No 73911) of an old man sitting in front of a humpy, wearing a crescent-shaped breastplate supported by a chain or rope around his neck. The caption contains the words: “Aborigines – Deebing Creek Mission, c1900”, and, beneath that, “Jackey Jackey”. Part of the same collection, I presume, are two other photographs (Negatives Nos 63306 and 21309) of an old aboriginal man wearing such a breastplate, where the chain around his neck may more clearly be seen. In No 63306, the word “JACKEY” may just be made out on the breastplate, as obviously the second of two words, and, under that, the word “KING”. The caption reads: “Aborigines – Logan River, c1890” and, beneath that, “Jackey Jackey”. In No 21309 the caption reads: “Aborigines – Logan District, c1895” and, beneath that, “Jackey Jackey”.
272 The first of these photographs was reproduced in a publication, a copy of p 40 of which is set out in the attachments to one of Dr Powell’s reports, but not otherwise identified. In the text which there accompanies the photograph, it is said that “Jackey spent some time with the Lutherans who arrived in the 1860s and established Bethesda Mission on the Albert River near Beenleigh.” That mission was in the valley near where the Albert joins the Logan, about half way between Waterford and the coast.
273 In the Sandy family, it is believed that Jackey Jackey was buried, at his own request, on the Jinbroken Range. Whether that belief is based upon what was reported by the unidentified correspondent in the Courier on 20 March 1931 (see para 264 above), it does derive some corroboration from that source.
274 The fragments of evidence to which I have referred above must now be used, to the extent that they can be, to resolve some questions which arise in the Yugura case in the present proceeding. The first is whether the evidence refers to one, or to more than one, person who lived in the second half of the nineteenth century. Here it is a pity that we do not have a copy of the letter from Mr Hood which was published in the Brisbane Courier on 18 March 1931. However, at least to the extent that it distinguished between the Degilbo Jacky and any person of a similar name who inhabited the Logan area, the response of Hinchcliffe, published in The Beaudesert Times on 12 June 1931, is corroborated by other information. Although unexplained in the text, there is in Petrie’s Reminiscences a photograph of an aboriginal man wearing a breastplate inscribed “JACKIE – MENVIL WANMAURN – KING OF STONEY CREEK – CABOOLTURE”. The caption is “JACKIE (BURPENGARY CREEK)”. This man is the subject of another photograph produced by Dr Powell, said to have been taken in 1897 and identified as Negative No 17382 (although not apparently part of the same collection as to the other photographs referred to above). The heading is “ABORIGINES – Brisbane – Enoggera 1897”, and the place of the setting is said to have been Newmarket Camp. There is also a reference in a 1998 publication edited by Lawrence S Smith, Tracks and Times: A History of the Pine Rivers District to an aboriginal who wore a breastplate marked “JACKY – KING OF DELANEY’S CREEK”. A further publication referred to by Dr Powell, FROM Spear & Musket – 1879–1979 – CABOOLTURE CENTENARY records that Jacky Delaney was the same man as the Menvil Wanmaurn mentioned in Petrie’s Reminiscences. The places with which this Jacky was associated are somewhat to the south of Degilbo, but still much closer thereto than any of the places associated with Jackey Jackey of the Logan and Pimpama. In other (ie non-Jackey Jackey) aspects of her Supplementary Report, Dr Powell treated this Delaney/Wanmaurn Jacky as someone other than the ancestor referred to in item (i) of the Yugara list of ancestors. On all of the material available to the court, that is a strong likelihood. I would find, therefore, that Jackey Jackey was confined in his domain, his life and his travels to areas to the south of Brisbane, and I shall proceed by reference to such a limitation.
275 From there, the remaining areas of uncertainty about Jackey Jackey concern the extent of his relationship with the Christmas Creek area and the relevance of his presence, occasional though it may have been, in Brisbane. As to the former, Hinchcliffe was adamant that Jackey Jackey was never “further up the Upper Logan than Beaudesert”. That assertion is directly inconsistent with Love’s statement that “Bilinba (Jacky)” was one of the full-blooded aboriginals who lived in the Christmas Creek area. It is, of course, Bilinba whom Des and Pearl Sandy identify as their great great grandfather. It is also part of the Yugara case that Jackey Jackey chose to pass his last days (somewhere, I would infer, about the turn of the century) at the Jinbroken Range because that was the country of his upbringing. O’Connor said (The Kombumerri, p 65):
Bilin Bilin died in 1901. It is believed he was buried seated in an upright position, in a high rocky shelter overlooking the Albert River in the nesting place of Eagles.
Allowing for a degree of imprecision, this is consistent with Love and with the Yugara applicants’ understanding. It is not consistent with Hinchcliffe: indeed, Jackey Jackey’s choice of burial place is consistent only with an association with country that would be denied by Hinchcliffe. Since this aspect of Jackey Jackey’s circumstances is only tangentially interesting in a proceeding concerned with the area around Brisbane, I would prefer not to make any finding about it, lest that finding become an embarrassment in a future proceeding about the area around and to the south of Beaudesert. I would, however, say this much. For a white observer such as Hinchcliffe to recount something positive which he heard or saw may be one thing: for him to exclude an event on the basis that he was not aware of it would be another thing altogether. Had the issue been significant, I would have treated Hinchcliffe’s assertion that Jackey Jackey was never further up the Logan than Beaudesert with some caution.
276 As to Jackey Jackey’s presence in Brisbane, there are three matters to be considered. The first is the extract in the Brisbane Courier about Holland Park. The author being unidentified, it is difficult to know with what authority he or she spoke. I think it unlikely, however, that the reader was supposed to conclude that the area was generally or customarily under the domain of Jackey Jackey. In my view, the reference is more likely to be, as the closing lines imply, to a corroboree or other special place of meeting for aborigines from various districts. The presence of Lumpy Billy, to whom Hinchcliffe referred as “the King of the Albert”, is consistent with such an inference. Additionally, this unidentified author was here speaking of the early 1880s, by which time Jackey Jackey’s presently relevant daughter Emily would have been in her late 20s and would, I infer, have been living with Willie Williams in the Tabooba – Tamrookum area.
277 The second matter is Hinchcliffe’s reference to Jackey Jackey and Rawlins being “on return from one of their trips to Brisbane”. As I understand it, Dr Powell would take this to imply that Jackey Jackey made such trips on a basis that was at least reasonably regular. Dr Macdonald, by contrast, said in one of her reports:
The evidence of [Jackey Jackey’s] presence in Turrbal country (as opposed to parts of Yugumbeh country which are currently included in the Turrbal native title application) from time to time is not unusual, and would probably indicate close Turrbal kin. But the same could be said of almost all people of this entire region.
While Dr Macdonald’s characterisation of Brisbane as “Turrbal country” might be viewed as tendentious, the point she makes is, in my view, a valid one. That aboriginal leaders – before as well as after white settlement – would have occasion to visit areas and lands that were not their own in the native title sense from time to time was an uncontroversial assumption on which much of the present case was conducted. I would not follow Dr Macdonald in inferring a particular reason for Jackey Jackey to have visited Brisbane, but I do accept her point that visits such as this do not provide a basis for an inference which is relevant to questions of native title.
278 The third matter was Lauterer’s statement that Jackey Jackey was “often to be seen in Stanley Street” in early 1891. Sadly, the context did not show Jackey Jackey in the favourable light that was merited by his earlier pre-eminent status in the aboriginal community as such. I would not draw any conclusion about the land with which Jackey Jackey was associated from the circumstance to which Lauterer referred. As mentioned in the previous paragraph, Jackey Jackey’s occasional – even regular – appearance in Brisbane (which was by then, of course, a city of some size) would not be the kind of event that would justify a finding of association with that area in the native title context.
279 As against these very weak indications, we have the strong evidence that it was with the area around the Logan, particularly the lower Logan, that Jackey Jackey was associated in a way that would now be recognisable as relevant to a claim for native title. As Hinchcliffe put it, Jackey Jackey’s breastplate, “King of the Logan and Pimpana … confined his aboriginal domain”. It is true that, in 1890, Hinchcliffe himself said that the district of the “Logan Blacks” extended “from Ipswich to Brisbane, and from Beaudesert to Pimpama and Moreton Bay”, but, to the extent that this assertion (which was, I would add, made in the context of a discussion about language rather than dominion) referred to Brisbane and Moreton Bay, it could not, consistently with the bulk of the evidence in the case, be taken as implying anything about Jackey Jackey’s country. There is no suggestion that any of the major events in Jackey Jackey’s life – his own birth, his upbringing, any of his three marriages, the birth of his daughter Emily, her marriage to and subsequent life with Williams, for example – occurred in the claim area. Hinchcliffe, who knew the man, was emphatic that his region was the Logan, and the lower Logan at that. Consistently, when Jackey Jackey apparently found the work of missionaries of some interest, it was the Bethesda Mission in the lower Logan area to which he resorted.
280 For the reasons I have given, I find that Jackey Jackey was an ancestor of Des and Pearl Sandy, but I am not satisfied that that circumstance makes any contribution to their group’s claim to native title in respect of the claim area in the present case.
281 Whilst on the subject of the forebears of Des and Pearl Sandy, I shall deal with item (iv) on the Yugara ancestry list. Lindsay Sandy’s parents (as noted on his death certificate) were John and Mary Ann Sandy. It is believed by Des Sandy that John Sandy was originally known as John Bungaree, but was, apparently, obliged, under some unstated authority, to change his surname to Sandy. However that may be, it does seem that this man was known, at various times, by one or other of these surnames. In evidence is a death certificate in the name of “John Bungaree”, who died at Tweed Heads on 6 August 1943 at the age of 84 years. It is there noted that this man had two surviving sons, Lindsay and Norman, both aged 60 years at the time. It is probable, therefore, that this man is one and the same as the John Sandy named on Lindsay Sandy’s death certificate. He would have been born in about 1859. I shall refer to him as Bungaree.
282 There is no record of, or from which can be inferred, the place of John Bungaree’s birth. In an interview with Dr Powell in June 2000, a senior aboriginal whom Mr Sandy described as “a walking archives”, Aileen Prince, said that she had been told by an older man again, Jack Saltner, that Bungaree had been born in the area which is now the Botanic Gardens in Brisbane. Dr Powell could not, however, verify that from any objective material, and had not investigated the question whether there was an aboriginal camp in that area in 1859.
283 Bungaree’s marriage to Mary Ann (when he was 23 years of age and, therefore, in about 1882) took place at Southport, at which place also, as noted above, the twins Lindsay and Norman were born in 1883. In evidence is a police report, dated 8 July 1940, in which Alfred Sandy stated that his grandfather John Bungaree (although spelt “Bungreey”) was still living at Glen Innes, in New South Wales. According to Dr Powell, Bungaree lived “in different places including the Tweed Valley, Nerang River, Southport, Logan River, the McPherson Ranges, Warwick, and Allora”.
284 All of the places mentioned by Dr Powell are well outside the claim area, as are the recorded places of Bungaree’s marriage and death, and the place where his twin sons were born. The only suggestion that he had anything to do with any place within the claim area is that he himself was born at the Botanic Gardens. That suggestion comes to the court by way of double hearsay (probably even more than that, given that it may be taken that Saltner was not present at the time), and the court is in no position to assess the credibility of it through the evidence of whoever it was who actually knew, by direct involvement, the existence of the fact concerned. As pointed out to Dr Powell by counsel for the State, the suggestion stands out as a single instance contrary to what otherwise appears as a consistent pattern, namely, that Bungaree lived well to the south, or to the south-west, of the claim area.
285 Bungaree’s wife Mary Ann is the subject of some uncertainty in the evidence. That name for her is taken from the death certificates in respect of her twin sons Norman and Lindsay. On Bungaree’s own death certificate, however, she is referred to simply as “Mary”. That minor curiosity may be put to one side. Of more interest is her maiden surname. Norman died on 2 July 1958, and on his death certificate his mother’s maiden surname is given as “Mary Ann Mitchell”. The informant was a “T Preston”, unrelated to the deceased. Lindsay died on 27 March 1959, and on his death certificate his mother’s maiden surname is given as “Mary Ann Sandy”. The informant was one of Lindsay’s sons, Des and Pearl Sandy’s uncle. At first blush, one might think that the latter certificate contained a mistake, in that it gave the mother’s married surname (that is, the dead man’s surname) where the pro forma required the maiden surname to be provided. Since we believe, however, that Bungaree was himself, at some point, obliged to change, or did change, his own surname, the possibility that he adopted his wife’s maiden surname could not be excluded. But no party, and none of the experts, in the case was prepared to go further than to acknowledge this as a possibility.
286 The matters just discussed would be no more than trivialities were it not for the suggestion on Norman Sandy’s death certificate that his mother’s maiden surname was Mitchell. If it was, there is a possibility that she was the same Mary Ann Mitchell as I refer to below in the context of Ruth James’ ancestry. However, whatever Mary Ann Bungaree’s background may have been, there is no suggestion in the evidence that she lived within, or had any other relevant association with, the claim area.
287 The other witness whose evidence related to Bungaree was Carol Ann Kennedy. Her parents were Arthur and Ida Currie. Ida is of no present interest. Arthur was born at Beaudesert in 1908, the son of Charles and Annie Currie. Charles was born at Laidley in 1871. His circumstances are not said to be relevant to the Yugara case. Annie was born at Coomera on an undisclosed date. She was, according to Mrs Kennedy, the daughter of George and Mittie Fogarty. George was a stockman and drover whose only relevance is that he married Mittie. It is Mittie’s circumstances upon which the Yugara applicants rely. According to Dr Powell’s research, Mittie was reared from infancy by the McDonald family on the death of her mother. In her oral evidence, Dr Powell said:
She was brought up Bromelton because … there’s a settler family there in 1860 and they record in their account of events that a mother comes for help and she’s dying and she does die, and – but they discovered there’s a – the baby has been left out in the paddock. And they bring that baby in and care for her, and that’s Mittie, Mittie Sandy.
As is apparent from this evidence, Dr Powell’s researches gave this baby the surname “Sandy”.
288 In her witness statement, Mrs Kennedy said that she was told by her sister that Mittie “was from a Sandy line”. In her oral evidence, Mrs Kennedy explained what this meant: Mittie was the sister of John Bungaree (Sandy), Des and Pearl Sandy’s great grandfather. When asked how she came by that information, Mrs Kennedy said that, before she had the archives and records, she was told that. Then she became curious, and asked for all the histories. She said that she had a piece of paper that indicated that John Bungaree had a sister called Mittie, and agreed to bring a photocopy of that paper to court. I was subsequently told by counsel for the State that Mrs Kennedy had provided some documents, but they threw no light on the asserted relationship. No document, or copy document, that supported the existence of such a relationship was ever tendered. Dr Powell was asked by counsel for the State whether she had “ever read anywhere in [her] research anything to suggest that somebody called Mittie could be a sister of John Bungaree”, and answered in the negative. In the circumstances, I would hold it not to have been established that the Mittie who married George Fogarty, from whom Ms Kennedy is descended, was related to John Bungaree.
289 For the sake of completeness, there is some suggestion in the final written submissions of the Yugara applicants that an aboriginal leader known as “King Bungaree” was one and the same man as the John Bungaree who changed his surname to Sandy. The former was reported in the Moreton Bay Courier for 9 October 1847, to have been a member of a party of aborigines which waylaid someone at the Rosewood Scrub. On no view of the evidence would John Bungaree have been alive in 1847. As Dr Powell accepted, these two men were obviously different people, and there is nothing to link King Bungaree with the Yugara applicants.
290 Turning next to the people referred to in item (ii) on the Yugara list of ancestors, there was a man whose aboriginal name was Kerwalli and who was, in his later years, known as King Sandy. Petrie recounts an episode, in 1862, in which he took a party of 25 aborigines to cut cedar. This was in the North Pine area, where Petrie had his property. The aborigines insisted on having Petrie cut a brand – the upper case letter “P” enclosed in a circle – into their arms. Kerwalli was one of these. In evidence is a memorandum written from Maroochy by Petrie himself on 31 May 1862 requesting (from an official whose name on the document as tendered had been obliterated by some subsequent filing expedient) the forwarding of blankets in respect of a lengthy list of aborigines who “had been working for me, and who were absent from Brisbane … when the usual distribution of blankets took place”. Each aboriginal on the list was identified by his or her native and English names. First and second on the list were “Kirwallie” (English name Sandy) and his wife “Naewin” (English name Sarah). From these sources, it may be taken that Kerwalli (to use the Yugara applicants’ adopted spelling) was working with Petrie some distance from Brisbane – most probably at or about Petrie’s property on the North Pine – in 1862, and might otherwise have been expected to present himself in the Brisbane area to collect his blanket.
291 In Petrie’s Reminiscences there is a photograph of this man, above the caption “KING SANDY OR ‘KER-WALLI’ (TOORBAL POINT OR NINGI NINGI TRIBE)”. If this was a description of the land with which he was associated, whether as a leader or otherwise, it would be well to the north of the claim area. As against this, Dr Fisher referred to Craig, JW, Diary of a Naturalist: Being the record of three years’ work collecting specimens in the south of France and Australia, 1873-77, 1908, at page 147, which records the visit of the author to a “small Sandgate camp in 1875” (Fisher’s words). Craig met with Kerwalli, who told him that “he was the king of the tribe where Brisbane now stands, and that the Government had taken his land from him, and given him the brass plate instead.” (Craig’s words). Petrie also mentions that Kerwalli was the last of the 25 aborigines who had been branded in 1862 to die, which he did, at Wynnum, in 1900. By then he had become known as “King Sandy”.
292 But the evidence discloses no kind of ancestral or other relevant connection between King Sandy and the Yugara applicants. The latters’ perception that they were descended from Kerwalli was based on information which was second-hand at best, vague and, in some respects, confused. Each of those applicants was able to trace his or her ancestry back to around the nineteenth century, and no reference to Kerwalli was to be found therein. Dr Powell examined all of the possibly relevant materials on this subject and concluded:
None of these materials contains the necessary information such as parents’ names, that might establish the connections of the Yugara/Yugarpul forebears carrying the last name ‘Sandy’ to the Yugara/Yugarpul ancestors Gairballie/Kerwalli/King Sandy and Naewin/Sarah.
293 Turning to item (iii) on the Yugara ancestry list, the relevant evidence was given by Ruth James. Her parents were Robert Long and his wife Mary, nee Geary. It is Mary Geary’s ancestry which is relevant to the present case but, for the sake of completeness, I shall note first what is known of the ancestors of Robert Long. He himself was born in 1921. His father Peter Long was born in about 1891 (the certificate of his marriage to Queenie Priestly on 7 October 1915 gives his then age as 24 years). Peter’s parents were William Long and Maggie McCarthy, but nothing further of any relevance is known about them.
294 Turning to Mrs James’ ancestors on her mother’s side, her mother Mary Long was born in 1926, the daughter of John and Adelaide Geary. John’s ancestry is not presently relevant. Adelaide Geary, also known as “Warri”, was born in about 1897 (her mother’s death certificate, dated 26 September 1925, notes that Adelaide was then 28 years of age). Adelaide’s mother was Mary Ann Sandy, the date of whose birth can be calculated at 1859 by reference to her death certificate, which records that she died on 26 September 1925 at the age of 66 years, or at 1866 by reference to her marriage certificate, which records that she married one William Drumley on 26 August 1913 at the age of 47 years. Both certificates give her parents as Alexander Sandy and Mary Ann Mitchell. There appears to be a record – a second-hand reference to which was tendered by Mrs James without objection – that Mary Ann Mitchell was 46 years old in 1894, which would place her year of birth at about 1848. That her daughter was born in 1859 must, therefore, be treated as highly unlikely. I think that 1866 is much more likely to have been the year in which Mary Ann Sandy was born.
295 Dr Powell expressed the tentative opinion that Mary Ann Mitchell might have been the woman who married Bungaree in about 1882. A plausible explanation for the confusion in the matter of her maiden surname as between the death certificates of Bungaree’s twin sons Norman and Lindsay would be that her original maiden surname was Mitchell and that, having married (or become the partner of) Alexander Sandy at some point, Sandy was then treated as her maiden surname (at least by Des and Pearl’s uncle who provided the information on which Lindsay’s death certificate was based) when she married Bungaree. Perhaps the age differential between this Mary Ann and her new husband in 1882 (about 11 years in favour of the former) should not be regarded as sufficient to exclude the hypothesis advanced by Dr Powell. As I understand Dr Powell’s position, however, she would not put this any higher than a hypothesis, and she would need to make more inquiries before being able to advance it as a probability.
296 Alexander Sandy is referred to also as “Bungaree” on the Yugara ancestry list because Ruth James originally thought he was the “grandfather Bungaree” to whom her mother often referred. As Mrs James understood it, her mother had met this man. However, by the time she came to give evidence in the case, she had realised that her mother could not have met her (the mother’s) great grandfather, as he died before she was born. Mrs James ultimately accepted that she knew nothing about Alexander Sandy, and Dr Powell, who had, apparently, undertaken such research as was possible, said that the only available record about this man was his name as the bride’s father on the marriage certificate of Mary Ann Sandy to William Drumley in 1913.
297 Mary Ann Mitchell is referred to also as “Paimba” on the Yugara ancestry list not because it represents a name used in the oral history of Mrs James’ family, but because Mrs James found the name given as the aboriginal equivalent of “Mary Ann” in a list published in 1947, under the name of Thomas W Hardcastle, described as “Names of Aboriginals I Knew”. Hardcastle’s authority on aboriginal language was not questioned, and Dr Haworth said that his word list would have been based on his contacts over at least 40 years. So the person to whom he referred as “Paimba” may well have been the Mary Ann Mitchell who was born in 1848. But nothing turns on it.
298 There is no suggestion in the evidence that either Alexander Sandy or his wife, or partner, Mary Ann, had any connection with the claim area.
299 Items (v) and (vi) on the Yugara ancestry list may be considered together. They both refer to a Lizzie Sandy, in one case as having a husband called William Mitchell and in the other case as also being known as Lizzie Brown and having a son called Billy Brown who was married to Topsy. Here I would commence with the evidence of Valentine Brown.
300 Mr Brown was born at Bundaberg on 18 May 1950. His parents were Syd Brown and Ivy Broome. It is Syd’s ancestry which is presently relevant. He was born at Beaudesert on 4 October 1920, the son of Herbert (“Bertie”) and Lena (nee Ross) Brown, who were married on 11 November 1918. Again, it is Bertie’s circumstances which are relevant here. According to the record of his admission to the Cherbourg Settlement in September 1946, Bertie was born at Ipswich on 11 April 1889, although I note that an extract from the register of his marriage to Lena in 1918 gives his then age as 25 years. His parents were Billy Brown and Topsy Nerang. According to that register, Billy was born at “Tweed River NSW or QLD” and married Topsy, at Deebing Creek, on 24 July 1895 when aged 25 years: this would mean that Billy was born in about 1870. His mother was “Lizzie”, that is to say, the woman referred to in item (vi) on the Yugara list. It is not established how Billy acquired his surname: conventionally, it would be assumed that he was the son of a man called Brown, but, since nothing is known of Billy’s father, the prospect of this surname having been Lizzie’s, or something else again, cannot be excluded. Topsy was born at Cressbrook and was 23 years old when she married Billy: she was, therefore, born in about 1872. Her usual place of residence (ie presumably when her son Bertie was married in November 1918) was given as Deebing Creek, and her parents were named as “Nerang and Kitty”.
301 The evidence to which I have referred so far provides no basis for a supposition that Lizzie was a Sandy, as advanced, at least in the alternative, by the way item (vi) on the Yugara ancestry list is expressed. In the course of her evidence, Dr Powell was asked about “a person called Lizzie Sandy or Lizzie Brown”. Counsel for the State put it to Dr Powell that she (Powell) had referred to this Lizzie as “having lived in a place called Tabooba, … and having died at Boonah”. Dr Powell said that there was a record of that. She said that Lizzie was the daughter of “Sandy and Nancy”. Her evidence continued:
But she’s a Sandy. So, we don’t know if that’s – who that Sandy is, whether it is John Jack Bungali [sic – Bungaree] Sandy or what. We don’t know. Or is that another Sandy, another person with the name Sandy? We do know that she married Billy Mitchell and she had lots and lots of, you know, like descendants. And she married also Jack Bungai [sic – Bundi]. That’s how we got her records because they were legally married, so we’ve got a good written record of – but unfortunately they didn’t put her – they just said she was over 21, so she probably refused to give her age.
302 The records to which Dr Powell was here referring would sustain a finding that there was a Lizzie Sandy who married a William Mitchell. They had at least six children, namely, Sam, who was born at Beaudesert somewhere in the period 1890-93, Agie, who was born about 1896, Julia, who was born at Beaudesert about 1899, Ethel, who was born about 1903, Nelly, who was born about 1904 and Frank, who was born somewhere in the period 1908-10. In relation to Sam at least, some corroboration of this story is provided by a record of the death, in September 1949, of one Samuel Mitchell, whose mother’s name is given as Lizzie Sandy. He was aged 59 years when he died, which would mean that he was born in about 1890. His mother, Lizzie, is the woman referred to in item (v) on the Yugara ancestry list.
303 William Mitchell died on 27 August 1911. About a year later, on 31 August 1912, it seems that his widow Lizzie remarried, at Deebing Creek, this time to one Jack Bundi. According to the relevant marriage register, Jack was then 39 years of age. Lizzie was said to be “over 21”, and to have been born at Hillview. In a report by a member of the Police at Beaudesert on 31 October 1911 referred to by Dr Powell, it was said that Lizzie did “not belong to Hillview camp but to a place called Tabooba [where] she has friends there and they were old employees of Mrs Collins, Tamrookum”. There is a record of the death, at the Boonah hospital on 22 February 1925, of an aboriginal woman called “BROWN or MITCHELL Lizzie”. Her age at death is not stated. This is not a death certificate, and does not contain the more fulsome details conventionally associated with such a document.
304 The existence, and some other details, of Lizzie Sandy/Mitchell/Bundi are, therefore, a matter of record. The relationship between this person and the Lizzie whose son was Billy Brown, the great grandfather of Valentine Brown, is, however, problematic. That there were two Lizzies does seem to be the premise upon which the Yugara applicants’ group definition is based. But the questions put to Dr Powell by counsel for the State, and Dr Powell’s responses, effectively merged the two into one person. Regrettably, Dr Powell was not asked to confirm, and she did not state in terms, that she was satisfied that these Lizzies were one and the same woman. She was unable to venture an opinion as to why Brown was given as the, or as a, surname on the record of Lizzie’s death. She did not suggest that Lizzie had married someone called Brown before she married William Mitchell. Apparently nothing to that effect was said by Mrs Prince, the daughter-in-law of Lizzie Mitchell.
305 The direct evidence being in this uncertain state, what may be inferred on the probabilities? As I have said above, Billy Brown was born in about 1870. For the one woman to have been both his mother and the mother of the six Mitchell children would have meant that she was no younger than, say, her late 30s when she gave birth to Sam and her late 50s when she gave birth to Frank. It would have meant that she was about 60 years of age when she married Jack Bundi, then aged 39 years. I do not suggest that this could not, in both respects, have been the case, but for her to have been about 20 years younger does strike one as the more probable situation. If so, she could not have been the mother of Billy Brown.
306 As against that, there are only two indications that these two Lizzies might have been the one person. Each is either weak or ambiguous. The first is the common first name, Lizzie. I would not, however, find it in the least surprising that there was more than one aboriginal woman in the relevant area with this name, especially if we are looking at people with ages up to about 20 years apart. The second indication is the rather oddly expressed record of Lizzie’s death in 1925. I would not read that as a necessary indication that the relevant government official knew that the deceased woman had been called both Brown and Mitchell in sequence. It is no less likely, in my view, that there was some uncertainty as to the identity of the woman, and it may have been known that there was, or had been, both a Lizzie Brown and a Lizzie Mitchell in the relevant area at that time.
307 The position is, therefore, that I could not be satisfied that Lizzie, the great great grandmother of Valentine Brown, was born a Sandy. On the other hand, I accept that Lizzie Mitchell/Bundi, the mother of Mrs Prince’s first husband Frank, was so born, but, as Dr Powell conceded, we know nothing of her parents or forebears. There is no evidence of any living descendant of this Lizzie. Further, there is nothing in the evidence to suggest that either Lizzie Brown or Lizzie Mitchell lived in, or had any other relevant connection with, the claim area.
308 I turn next to item (vii) on the Yugara ancestry list, in respect of which the relevant evidence was given by Danny Doyle. His parents were Richard and Marva (nee Green) Doyle. Richard was born in 1944 to Harold and Violet Doyle. Violet, whose surname appears to have been Doeblien at the time of her death in 2008, was born in about 1919. On her death certificate, her mother is recorded as Elsie Myers and her father as Andy Richards. Andy was born in 1877 and married Elsie (his second wife) in 1924. Although nothing is known of Elsie’s date of birth, because of the date of her marriage I shall, for the present, adopt a working hypothesis that she was born not later than 1906. Elsie’s parents were Ted and Molly Myers. Ted was born at Esk in about 1884, married one Agnes Breckenridge at Coraki in New South Wales in 1919, and died at that place at the age of 41 years in 1925. It may be inferred, therefore, that Molly was his wife, or at least partner, earlier in time than Agnes.
309 The objective information, such as it is, is based upon Dr Powell’s 2000 FAIRA report, upon official records and upon an extract from the “Woorabinda” section of unpublished genealogical charts prepared by Norman B Tindale in 1938-39 in the course of what is described (in Dr Powell’s list of references to her 2000 report into the Sandy, Bonner and Bell families) as “the Harvard and Adelaide Universities Anthropological Expedition”. These charts are in handwriting and, I would have to say, have the appearance of a draft, or of jottings, as to the subjects with which they are concerned. Nonetheless, they show that Elsie Myers was married to Andy Richards and that Violet was one of their children. That much is apparent from other, official, records. The relevant chart also shows, however, that Elsie was the daughter of Ted and Molly Myers. Written above Ted’s name, in a kind of superscript, is the endorsement: “Jagera fb.?”, which I take to indicate an association with the Jagera aboriginal group and a query as to whether Ted was full blood. Correspondingly written above Molly’s name is the endorsement “Jagera Tr ½”, which I take to indicate a like association (the abbreviation “Tr” possibly standing for “Tribe”) and a suggestion that Molly might be a half-caste. Written beneath Ted’s name, in a kind of subscript, are the words “Brisbane district”.
310 That is as far as the Tindale records relevantly go. There is no information about the parents of Molly or Ted. The Yugara applicants say nothing about Ted’s parents, but they contend that Molly was the daughter of a Jimmy Crowe and his wife or partner Kitty (not claimed to be the same as any of the other Kittys referred to in these reasons). Mr Doyle, who was the only member of this claimed line of descent to give evidence, said: “[M]y ancestor that I’m claiming for really is Kitty”; and: “[O]ur apical ancestor is Kitty”, who, according to Mr Doyle, came from somewhere that his family described as “this area”, which he understood as the area of the Jagera, namely –
… our cultural area … from the Toowoomba area and … down towards the Caboolture River area, and … [along] the coastline all the way to Cleveland and Victoria Point and Logan River, and … back towards Toowoomba.
Kitty’s husband Jimmy was, according to Mr Doyle, from a different area and not relevant to his claim.
311 The only documentary evidence of the existence of Jimmy Crowe and his wife, or partner, Kitty was what was said to be a copy extract from a letter between two property owners on the Darling Downs, written in 1983. Only the few lines in the letter that related to Crowe were copied. The copy was annexed to a witness statement which was affirmed by Mr Doyle on 1 August 2013. Other than to state that certain documents (of which the extract was one) were so annexed, and to state that he gave permission for the court and some others to view the documents, Mr Doyle said nothing of relevance about the matter. The extract reads as follows:
… over 20 years. I used to see Jimmy Crowe a lot & he used to come to mother for meals. I do not remember where he died but he is buried near the railway in the old cemetery Dalby. After he came to “Warmga” commonly called “Wonga” his wife ? Kitty died. He also has two daughters, Molly and Eva [or Eve] they married, one to Teddy Myers, the other Cob Query. His wife their mother Kitty was buried at Warmga. – In my time I do …
Mr Doyle said that he would assume that “Warmga” was a station, “because everybody was sent out to go and work on stations”. There is nothing in the evidence that would identify the location – even approximate – of this assumed station, but Dr Powell did opine that the place of Jimmy and Kitty’s death was at a place further to the west than any part of the claim area.
312 In her written reports, Dr Powell said nothing of Jimmy and Kitty Crowe. In her oral evidence, she confirmed that nothing was known about this Kitty or any association she might have had with the claim area.
313 The link between Kitty and Mr Doyle’s own ancestors upon which he relies is the statement by the property owner that there was, at some unidentified time in the past, a woman called Kitty whose daughter Molly married one Teddy Myers. The coincidence of names is certainly strong, but it would require the joining of a number of dots before it could be concluded that this Ted and Molly were the same as were the parents of Elsie Myers. There was no evidence of the period about which the property owner was speaking. However, if Elsie was born no later than 1906, Molly presumably married Ted at or before that time. The property owner may not have been an observer of those events as a boy or a youth, but the more obvious sense of the passage above is that he was. If he was, say, 10 years old in 1905, he would have been 88 years old when he wrote the letter referred to above. In this analysis, I have stretched the envelope in two respects to make Mr Doyle’s hypothesis a plausible one. If Molly married Ted earlier than 1906 and/or if the property owner were older than 10 years when this marriage took place, the hypothesis becomes less plausible. It may be that I have misread the sense of the letter, and that Molly had married Ted some years before the property owner, as a boy, made their acquaintance, but it must be remembered that Ted himself had been born only in 1884.
314 Even allowing for the difficulties facing the Yugara applicants in the establishment of matters of fact after the passage of so many years, I am not satisfied that the Kitty referred to in the property owner’s letter was the mother of Molly Myers, Mr Doyle’s great great grandmother. More importantly – and here no amount of generosity in approach would make any difference – there is no evidence that this Kitty lived in, or had any association with, the claim area.
315 For the above reasons, I reject the case of the Yugara applicants that they, and the group they represent, are descended from people who had any relevant rights or interests in land or waters in the claim area. My reasons for doing so are less straightforward than in the case of the Turrbal claim. To summarise my findings by reference to the Yugara group definition set out in para 17 above:
(i) Des and Pearl Sandy are descended from this man, but neither he nor any of the others mentioned in parenthesis had any relevant rights or interests in land or waters in the claim area;
(ii) no member of the Yugara claim group is descended from this man or his wife;
(iii) Mrs James is descended from this couple, but they had no relevant rights or interests in land or waters in the claim area;
(iv) Des and Pearl Sandy are descended from this couple, but they had no relevant rights or interests in land or waters in the claim area;
(v) no member of the Yugara claim group is descended from this woman or her husband, and they had no relevant rights or interests in land or waters in the claim area;
(vi) Valentine Brown is descended from this woman, but neither she nor her son had any relevant rights or interests in land or waters in the claim area;
(vii) Danny Doyle is descended from the couple referred to in parenthesis, but it is not established that Molly was the daughter of Kitty, and neither of them had any relevant rights or interests in land or waters in the claim area.
The Answers to the Questions
316 For the reasons given above, the cases – both Yugara and Turrbal – that members of the claim groups possess communal, group or individual rights and interests in relation to any land or water in the claim area must be rejected. In short, that is because there has not been a continued, substantially uninterrupted, normative system under which the traditional laws and customs which would sustain those rights and interests were acknowledged and observed, and because no member of either claim group would, under those laws and customs as they existed at sovereignty and immediately thereafter, be recognised as possessed of those rights and interests.
317 It was submitted by the Yugara applicants that, because they had not had an opportunity to cause a thorough, professional, assessment of their connection, and the connection of their ancestors, to the lands and waters of the claim area to be carried out, the court should not answer Question (a) in the negative, but should, if it did not answer the question in the affirmative, provide no immediate answer at all and leave the matter of native title undetermined until such time as they had had such an opportunity. I reject that submission. It was not made until the final stages of the hearing, in which the Yugara applicants participated on the merits. I am required to answer Question (a) by the order made on 30 October 2013, and I propose to do so.
318 For the foregoing reasons, I shall answer Question (a) in the negative. In those circumstances, Question (b) does not arise.
I certify that the preceding three hundred and eighteen (318) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. |
Associate:
Appendix A
