FEDERAL COURT OF AUSTRALIA

Fulton v Northern Territory of Australia [2016] FCA 1236

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth) the Fourth Respondent, Kevin John Kingston, cease to be a Respondent in the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    This judgment is the determination of a separate question arising in an application for the determination of native title filed on 12 November 2013.

2    The application concerns the land covered by the Nutwood Downs Pastoral Lease in the Northern Territory. Schedule A to the application identifies the persons on whose behalf the application is made.

3    First, there are those persons who are members by descent of one or more of five estate groups or who have been accepted by senior members of one of those estate groups as members of that estate group. The estate groups are: Mambali Amaling-Gan, Murungun Igalumba, Murungun Milgawirri, Budal Yuwaran and Guyal Bardi Bardi Dumnyun-Ngatanyana. Each of the estate groups comprises all the persons descended from identified apical ancestors (the application lists some of the descendants). The application describes these persons as “the Primary Native Title holders”.

4    Secondly, the application is brought on behalf of “other Native Title Holders” identified in para 14 of Sch A to the application as follows:

[14]    The other Native Title Holders in relation to the area claimed are, in accordance with traditional laws and customs, other Aboriginal people who have rights and interests in respect of the determination area, subject to the rights and interests of the estate group members, such people being:

(a)    members of estate groups from neighbouring estates; and

(b)    spouses of the estate group mem[bers].

5    Mr Kevin Kingston asserts that he is a member of the native title claim group because he is a member of the fifth estate group which, for convenience, I will refer to as “Guyal”. On 16 October 2014, Mr Kingston filed a notice of intention to become a party to the application. By virtue of s 84(3) of the Native Title Act 1993 (Cth) (the NT Act), Mr Kingston then became a party to the proceedings as a respondent. A Registrar of the Court made an order to that effect on 23 October 2014.

6    In the notice filed on 16 October 2014, Mr Kingston gave details of the interest he claimed. In summary, he asserted:

(a)    his connection to the country arises from his grandmother Violet Elizabeth Mary Farrar/Tybell/Ross (DoB 1917), her sister Nancy Mary Elizabeth Farrar/Damaso (DoB 1915) and their brother David Nutwood Farrar (DoB 1911), all of whom were born on the country;

(b)    Violet’s mother was Cygnet (sometimes “Signet”) Ada McLennan who was born in 1898;

(c)    custodianship of the country comprising Nutwood Downs had been handed to him by his “father” Cecil Farrar/Damaso before his death in 2013;

(d)    the country had also been handed to him by “Dad” Barney Ellaga who had been caring for the country at a time when his “father” Cecil had been living off country. Mr Ellaga is now deceased.

7    As to (c), I note that Mr Kingston’s father is Alfred Peter Kingston, a non-Aboriginal man. Cecil Farrar/Damaso is a child of Nancy. As to (d), there is no relationship by blood between Mr Kingston and Mr Ellaga.

8    The Applicant for native title (comprising five persons) disputes Mr Kingston’s claims. That dispute has been the subject of conferences, a mediation and case management hearings but the issues remain unresolved.

9    On 3 March 2016, a Registrar ordered:

The question “whether Signet/Cygnet Ada McLennan and her descendants are members of the native title claim group over the area known as Nutwood Downs Pastoral Lease, the subject of NTD 20/2013” be listed for hearing on a date to be fixed.

This had the effect of an order pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) that a question arising in the proceedings be heard separately from any other question. In addition, the Register made programming orders.

10    Mr Kingston has not had legal representation and did not have such representation at the hearing of the separate question. I permitted him to be assisted in the hearing by his wife, Ms Marisa Kingston.

11    As Mr Kingston’s assertion that he is a member of the native title claim group is the affirmative proposition, he has, at the least, an evidential onus of establishing that membership. Nevertheless, the Applicant, who is represented by the Northern Land Council (NLC), agreed to go first at the hearing. The Applicant acknowledged the correctness of many of the facts asserted by Mr Kingston and, in addition, relied upon the evidence of Ms English, an anthropologist.

12    Mr Kingston gave evidence himself and led evidence from his son Haydon. He also proposed to lead evidence from his wife. However, I disallowed that evidence because it concerned the content of some of the discussions at the Court ordered mediation directed to exploring a possible consensual resolution of Mr Kingston’s claims, and is therefore excluded by s 131 of the Evidence Act 1995 (Cth).

13    The determination of the separate question requires the Court to consider three principal issues:

(a)    whether Cygnet (Signet) Ada McLennan (Cygnet) and her descendants are members of one of the estate groups listed in the application for native title by virtue of descent from one of the named apical ancestors;

(b)    whether Cygnet and her descendants have been accepted as members of one or more of the listed estate groups by virtue of a non-descent connection to an estate group;

(c)    whether Cygnet and her descendants are “… other Native Title Holders” to whom para 14 of the application of the native title claim group refers.

I will also consider Mr Kingston’s claims summarised in (c) and (d) above and some other matters upon which he relied for his claim of membership of the Native Title Claim Group.

Anthropological background

14    As mentioned, the NLC, representing the applicant, relied on a report of Ms Gay English. Ms English is an appropriately qualified anthropologist, having obtained a Bachelor of Arts with First Class Honours in Anthropology from Charles Darwin University in 2004 and a Bachelor of Arts with a double major in Anthropology from the Northern Territory University in 1995. Before that, Ms English had obtained a Bachelor of Applied Social Science from the Western Australian College of Advanced Education (in 1989).

15    Ms English has worked as an anthropologist in the Northern Territory since 2002 and had a number of Aboriginal community related employments before then. Her work as an anthropologist has included research in the Roper River region with, amongst others, people of the Alawa Language group. This included research in relation to native title claims concerning a number of pastoral leases in the Roper River area including pastoral leases which adjoin or surround Nutwood Downs. Ms English said, and I accept, that she has worked extensively with senior Alawa informants over a long period of time and that she had formed her opinions relying on their information regarding Alawa country, law, ceremony and ownership of land. Ms English provided the report to the NLC concerning the underlying claim for native title over Nutwood Downs.

16    Mr Kingston raised an issue concerning Ms English which it is appropriate to address before making my assessment of the reliability of her evidence. The issue arises from statements which Mr Kingston attributes to Ms English on the first occasion they met, which was at Hodgson Downs (Minyeri) on 14 August 2011. There were significant differences between the accounts of Mr Kingston and Ms English as to what occurred during this meeting.

17    Mr Kingston’s account was that, at the time, he was visiting Hodgson Downs with his son Haydon and another. He was speaking to Mr Ellaga at his home. Mr Ellaga was an elder in the Guyal estate group. Mr Kingston said that Ms English arrived while he was talking to Mr Ellaga. She had some maps and was seeking the assistance of Mr Ellaga in relation to site surveys she was carrying out on the St Vidgeon Pastoral Lease. Mr Kingston said that he raised his own position with Ms English and provided her with some information, including that his grandmother, Violet, was one of three mixed blood Farrars born at Nutwood Downs. He said that Ms English then told him that “I was only chasing royalties and the evidence I was providing does [not] assist with any claim as the genealogy goes back to[o] far”. Mr Kingston said that Mr Ellaga reacted to this statement in a way which indicated that he did not regard Ms English’s statement as being appropriately respectful.

18    Mr Kingston’s son Haydon gave evidence which was, in essential respects, corroborative of his father’s account. He said that Ms English had said that they had “not been recognised for any land matters”; that “Nana Violet goes back too far”; and that “Kevin is only here for the royalties”. Haydon said that Mr Ellaga had become upset on Ms English making these statements.

19    Ms English denied the account of Mr Kingston and Haydon. Her evidence was to the following effect. In August 2011, she had been carrying out an anthropological survey of sacred sites on St Vidgeon Station. Normally, because of his status as an elder and his knowledge, Mr Ellaga would have assisted with that work by travelling in the helicopter with her. However, by reason of recent surgery, he was unable to do so. She knew Mr Ellaga well and was on friendly terms with him. Knowing that he could not accompany her, she was seeking his assistance by reference to maps. She could not recall whether Mr Kingston arrived while she was speaking to Mr Ellaga or whether he was already present. In either event, while they were speaking, Mr Kingston raised concerns that he was not recognised by NLC as a traditional owner of Nutwood Downs. This was the first occasion upon which she had met Mr Kingston and she did not understand what his genealogical or other connection may be. In accordance with her usual professional practice, she asked questions about his background and began drawing his ancestry.

20    Ms English made notes of what she was told. Almost nine months later, she prepared (using her notes) a formal memorandum recording her discussion with Mr Kingston and Mr Ellaga and provided it to the NLC. Nothing had occurred in particular to prompt her to prepare the formal note, it was just that preoccupation with her case load had precluded her doing so before 10 May 2012. Ms English’s memorandum was tendered at the trial. Ms English recorded in the memorandum that Mr Kingston had said that he and Cecil Damaso were related to Mr Ellaga and the Farrar family and, as such, should be recognised by the NLC as traditional owners of Cox River. Ms English discussed that claim with Mr Kingston and Mr Ellaga. The latter provided information regarding his own genealogy and that of Mr Kingston.

21    Ms English’s memorandum concluded with the following:

Barney Ellaga stated that “they [Cecil Damaso, Kevin Kingston and their families] all fit in through Bob Farrar and his son Brian Farrar. When questioned specifically about this connection, Barney acknowledged, as did Kevin Kingston, that the primary, but distant, connection between the patrilineal members of the Dumnyun Ngatanyan Guyal Group and Cecil Damaso is Ruby’s son, Brian Farrar. Barney also acknowledged that this is a family connection which does [not] give Mr Kingston or Mr Damaso any basis in which to claim Mingirringgi, Junggayi or Darlnyin relationships to the Dumnyun Ngatanyan Guyal country. These traditional role relationships and the definition of Traditional Owners in the ALRA (1976) NT were explained to Mr Kingston by both myself and Barney Ellaga in an attempt to explain why their broad family links do not entitle them to be recognised as Traditional Owners or to receive royalty monies. Refer to the attached partial genealogy compiled by myself with Barney Ellaga and Kevin Kingston (August 2011) for details of the names John and Bob Farrar’s wives and children.

In response to our discussion, Mr Kingston stated that he and Mr Damaso were not seeking any royalty monies. He continued to express concern that the NLC does not recognise the family connection he and Mr Damaso have to Barney Ellaga and the Farrar family. I explained that the NLC is a statutory body that represents [and recognises] those people with traditional land interests in Alawa ALT, and is not required to document such family connections.

Ms English attached a typed version of the genealogy to which she referred at the end of the first paragraph.

22    As can be seen, Ms English confirmed that there was some discussion of Mr Kingston’s genealogy in their meeting on 14 August 2011 and that the topic of royalties had been raised. She said, however, that this was in the context of her explaining the rights of Aboriginal traditional owners under the Aboriginal Land Rights Act (Northern Territory) Act 1976 (Cth).

23    Mr Kingston submitted, in effect, that I should reject Ms English’s account. The NLC, on the other hand, submitted that I should accept the evidence of Ms English as reliable.

24    In the assessing these submissions, I keep in mind a number of matters. First, the effect of the evidence of Mr Kingston and Haydon (if it be correct) is that Ms English had departed, in a significant way, from the appropriate standard of conduct to be expected of a professional anthropologist. That is to say, that she had been dismissive of a genealogical claim because it went back “to[o] far” and, further, she had, in effect, adopted a partisan view of Mr Kingston’s claims rather than addressing them in an impartial way. The statement imputed to Ms English that Mr Kingston was interested only in royalties implies a pejorative value judgment on her part, rather than being a statement of a detached anthropologist. I consider it unlikely that an anthropologist, acting responsibly, would adopt such an attitude. There is no other indication that Ms English was acting irresponsibly. She was present in connection with the survey of St Vidgeons for which she had been retained. She was in the presence of an acknowledged elder of the Guyal. To my mind, this makes it implausible that Ms English would have made the statements of the kind now attributed to her.

25    Secondly, it seems implausible that Ms English would have made the statement that the Kingstons could not establish appropriate connection because their ancestry went back “to[o] far”. To my mind, it is inherently unlikely that an anthropologist would make such a statement.

26    Thirdly, Ms English seems to have been at pains to understand the genealogy of Mr Kingston. That is evident in her recorded memorandum and in the partial genealogy which she prepared. To my mind, this is inconsistent with the dismissive attitude which Mr Kingston sought to impute to her.

27    Next, I note that although Ms English prepared her memorandum almost nine months after the conversation, she did so as part of her regular professional practice and before it was known that there was any issue of the kind now raised.

28    Finally, I consider that there is the potential for some misunderstanding or reconstruction on the part of the Kingstons. Haydon said that it had been only this year, or perhaps last year, that he had been first asked to recall the conversation. The possibility that he has been influenced in his recollection by his father cannot be overlooked. Given that the topic of royalties was raised, there is the potential for what was said to have been misunderstood or, because of Ms English’s (and Mr Ellaga’s) attempts to explain to Mr Kingston that he could not be regarded as a traditional owner, for Mr Kingston to have developed feelings of resentment towards her. This may have led to some colouring on his part of his recollection of what occurred.

29    For these reasons, I prefer Ms English’s account over that of the Kingstons as to what occurred at the meeting on 14 August 2011. I find that her memorandum is an accurate account of what occurred. The evidence of Mr Kingston and his son Haydon about the meeting does not cause me to have doubts about the reliability of Ms English’s evidence more generally.

30    Mr Kingston was also critical that Ms English had not thought it appropriate to interview him and his family in connection with her report. I do not regard this as being a criticism of substance. The information available to Ms English did not contain any indication that Mr Kingston was, or could be, a member of the native title claim group. That being so, it is understandable that she did not consider it necessary to conduct an interview with him. Further, and in any event, Mr Kingston did not adduce at the trial any evidence of a material fact which overlooked in the preparation of her opinion. He did, however, put to Ms English that, contrary to her understanding, Cecil Damaso’s paternal grandmother was a “full-blood” Aboriginal (and his paternal grandfather a Filipino) and Ms English appeared to be willing to accept that that may be so. Mr Kingston did not contend that this made Cecil Damaso an Alawa man, perhaps because Cecil’s paternal grandmother came from Borroloola.

31    I am satisfied that, for the purposes of the determination of the separate question, it is appropriate to accept Ms English’s opinions concerning the background to the Alawa social relationships and to the rights and responsibilities of land. I emphasise, however, that this is for the purposes of determining the present question, while at the same time noting that many of the principles relating to traditional rights and responsibilities of land which are relevant presently, appear to be well documented and to have been accepted in other matters.

32    Relying on Ms English’s evidence, I proceed on the following basis. The five estate groups who comprise the applicant in the proceedings are within the Alawa Language Group, which in turn is part of a wider cultural bloc comprising a cluster of language groups known as Luralindji. Each of the estate groups is associated with particular areas within the claim area. The association of an estate group with a particular area of land has been recognised in native title determinations in respect of adjoining or nearby land. See, for example, Wandarang, Alawa, Marra, and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923, (2000) 104 FCR 380 (St Vidgeon’s); Ellaga v Northern Territory of Australia [2012] FCA 670 (the consent determination concerning the Kalala Pastoral Lease); Ellaga v Northern Territory of Australia [2012] FCA 665 (the consent determination concerning the Maryfield Pastoral Lease); Fulton v Northern Territory of Australia [2013] FCA 1088 (the consent determination concerning the Tanumbirini Pastoral Lease).

33    The Alawa People consist of four categories called semi-moieties, namely, Budal, Guyal, Murungun and Mambali. These four semi-moieties are fundamental to the definition of rights to land for Alawa People. Membership of semi-moieties is inherited patrilineally. The primary function of the four semi-moieties is to codify relationships, particularly in the context of ritual and prescriptions to marriage, and to provide a framework for inter-group relations and alignment. All individuals within the Alawa kinship system are classified into one of eight subsection categories (commonly referred to as “skin names”).

34    Each area of Alawa “country” is assigned to a semi-moiety and one or more such areas (which are not necessarily contiguous areas of land) constitute a “country”, the land belonging to a local patrilineal descent group.

35    A patrilineal descent group contains three classes or categories of people, each of whom has a distinct role to play towards that country and ritual property. Those who inherit membership of the estate group through their actual or adopted father’s father are termed Mingirringi. Those who inherit membership through their mother, or in certain cases, their father’s mother, are termed Junggayi, and those who inherit membership through their mother’s mother are termed Darlnyin. Each individual will belong to three such groups; that of their father’s father, that of their mother’s father or father’s mother, and that of their mother’s mother. The three categories have common spiritual affiliations to sites in the estate area and each performs a different (but complementary) role in relation to the estate. These lines of descent were recognised by Kearney J as Aboriginal Land Commissioner in his report to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory on the Cox River (Alawa/Ngandji) Land Claim in November 1984 at [21]-[24] and in the St Vidgeon’s determination, at [47]-[53].

36    Ms English describes the roles of Mingirringgi, Junggayi and Darlnyin as being different but with complementary rights and responsibilities. She describes those rights and responsibilities in her report but it is unnecessary for present purposes to outline them.

Issue 1: Membership by descent

37    As already noted, Mr Kingston claims that he is entitled to be a claimant for native title in respect of the area of the Nutwood Downs Pastoral Lease by reason of his descent from Cygnet. The evidence discloses the following regarding Mr Kingston’s genealogy.

38    Cygnet was born in around 1898 at Elsey Station near Roper River. Her father was John McLennan, a non-Aboriginal who was the manager of Nutwood Downs from about 1896 to 1902. Those matters were common ground.

39    There is, however, disagreement as to the identity of Cygnet’s mother. Mr Kingston deposed that Cygnet’s mother was Minnie Bordatarr. He relies on information concerning Minnie Bordatarr contained in the Register of Wards published in the Government Gazette of the Northern Territory on 13 May 1957. This shows Minnie Bordatarr to be a member of the Bulainjan Group and of the Ridarrngu Tribe. It also shows that she was born in 1927, making it impossible for her to have been Cygnet’s mother. When this was pointed out to Mr Kingston in his cross-examination, he queried the reliability of the recorded date of birth. However, Minnie Bordatarr was well known in contemporary communities. She is known to have died in the 1990’s. This makes it improbable that she had been able to bear a child in 1898.

40    The identity of Cygnet’s mother was considered by Gray J as the former Aboriginal Land Commissioner in his report and recommendation to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Administrator of the Northern Territory on the Kenbi (Cox Peninsula) Land Claim No 37 in December 2000. In that report, Gray J made detailed findings of the genealogies of members of the Larrakia Group. Relevantly, Gray J reported:

[4.10.6]    The McLennan family is a large one. Its Larrakia ancestor is a woman called Minnie Lily, who married John McLennan, a non-Aboriginal man. They had two children, William McLennan and Cygnet Ada McLennan, both now deceased. …

…

[4.10.10]    The late Cygnet Ada McLennan first married a man called Jack Farrar. They had three children, of whom two survive, Nancy Farrar and Violet. Nancy has three children, John, Cecil and Nancy Damaso. … Cygnet Ada McLennan’s other daughter, Violet, whose surname was not the subject of any evidence, has two children, Faye Kingston and William Ross. Faye had four children, Christina Caruana, Alan Kingston, Eileen Parker and Kevin Kingston. … Kevin has two children, Timarah and Haydon Kingston. …

[4.10.11]    Cygnet Ada McLennan’s second marriage was to Franklin Johns. They had eight children, Hannah Talbot, Lorna Motlop, Franklin Johns, Victor Johns, Sylvanous Johns, William Johns, Harold Johns and Llewellyn Johns. …

41    As can be seen, Gray J considered Cygnet’s ancestry to be Larrakia.

42    In Risk v Northern Territory of Australia [2006] FCA 404, Mansfield J also considered the genealogy of the Larrakia people. His Honour made detailed findings concerning the McLennan family as follows:

[506]    The McLennan family group is relatively easy to outline compared to some of the larger family groups. The group comprises the descendants of a Larrakia woman named Minnie Lily, who married a European man, John McLennan. Dr Walsh estimated that Minnie Lily was born towards the end of the nineteenth century. Their children were William McLennan and Cygnet Ada McLennan. William McLennan was married twice. He fathered ten children, including Reginald Danny McLennan, William Thomas McLennan, Frances Susan May, Ada Ethel Bailey, Deborah Delores Ann Bayless, John Dominic McLennan, Wilfred McLennan, Joseph Steven McLennan (George), Llewellyn Alfred McLennan and Valerie May Parkes. In total, the descendents of William McLennan include members of the following families: McLennan, Young, Franz, Farrow, Rawson, Davey, May, Bailey, Bayless and Parkes, all of whom are members of the first applicants group.

[507]    Cygnet Ada McLennan had 11 children, listed on the genealogies as including David, Nancy Farrar, Violet, Hannah Lawrence Talbot, Lorne Raye Motlop, Franklin James Johns, Victor George Lewis Johns, Sylvanous Price Johns, William Parry McLennan Johns, Harold Havelock Baker Johns and Llewellyn Richard Johns. Cygnet Ada McLennan’s descendents therefore include the Damaso, Ross, Talbot, Motlop and Johns families, all of whom are members of the first applicants group.

43    Thus, Mansfield J also found that Cygnet’s parents were John McLennan and Minnie Lily.

44    The Court may adopt the findings of Gray J and Mansfield J. That is the effect of s 86 of the NT Act, which provides:

86 Evidence and findings in other proceedings

(1)    Subject to subsection 82(1), the Federal Court may:

(a)    receive into evidence the transcript of evidence in any other proceedings before:

(i)    the Court; or

(ii)    another court; or

(iii)    the NNTT; or

(iv)    a recognised State/Territory body; or

(v)    any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b)    receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

(c)    adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

(2)    Subject to subsection 82(1), the Federal Court:

(a)    must consider whether to receive into evidence the transcript of evidence from a native title application inquiry; and

(b)    may draw any conclusions of fact from that transcript that it thinks proper; and

(c)    may adopt any recommendation, finding, decision or determination of the NNTT in relation to the inquiry.

45    As can be seen, subs (1)(c) authorises the Court to “adopt any … finding, decision or judgment of any court, person or body of a kind mentioned in any of the subs (a)(i) to (v)”.

46    Section 86 permits but does not bind the Court to adopt the findings of an identified body. One circumstance which may make it inappropriate to adopt a previous finding would be the presence of evidence casting doubt on its reliability.

47    The Court did not receive any evidence or submission in the present case to the effect that it would be inappropriate for the Court to adopt the findings of Gray J and Mansfield J (other than that their conclusions are inconvenient for the case Mr Kingston puts forward). Further, the conclusions of Gray J and Mansfield J are supported by the ethnographic surveys conducted by Ms English. In April 2015, Ms English interviewed three of Cygnet’s then surviving children, Franklyn Johns (born in 1924), Harold Johns and Lorna Motlop (Johns). They confirmed to her that Cygnet’s mother was Minnie Lily and that they understood Cygnet to have been born around 1898. Further still, they recognised Minnie Lily and her descendants (including themselves) as being matrilineal members of the Larrakia McLennan group.

48    It is appropriate to record some further genealogy. These matters were common ground or, at least, not disputed. Cygnet had three children to John Samuel Farrar (Jnr) (a non-Aboriginal man). The three children were David Nutwood Farrar (born 1911), Nancy Mary Elizabeth Farrar (born 1915) and Violet Elizabeth Mary Farrar (born 1917). All were born on Nutwood Downs. In 1916, David Nutwood Farrar was taken by his white grandparents to Maryborough in Queensland and did not return to Nutwood Downs until about 1947.

49    In 1918 or 1919, Cygnet and her two daughters Violet and Nancy were removed to Darwin and then to Bathurst Island. Cygnet died in Brisbane in 1943, having been evacuated there in 1941 following the bombing of Darwin.

50    Violet Elizabeth Mary Farrar married Reginald Tybell in 1933. Mr Tybell was non-Aboriginal. Violet had two children: Faye whose father was Reginald Tybell, and William Ross Junior whose father was William Ross Senior, also a non-Aboriginal man. Faye had four children to a non-Aboriginal man named Alfred Peter Kingston. Mr Kingston is one of those children.

51    Nancy Mary Elizabeth Farrar had three children by Basilo Damaso. They were John, Cecil and Nancy Damaso.

52    The fact that the fathers of Cygnet, her daughters Violet and Nancy, and their descendants were all non-Aboriginal means that none of their children can be patrilineal descendants of the apical ancestors in the native title claim group, as described in Sch A to the application for native title.

53    I find therefore that neither Cygnet nor her descendants through Violet and Nancy have inherited Mingirringgi rights and responsibilities to one or more of the five estate groups for Nutwood Downs by virtue of patrilineal descent. Mr Kingston accepted that this was so. Instead, he asserts a matrilineal affiliation originating with Cygnet.

54    I have already mentioned the fundamental difficulties in accepting that Minnie Bordatarr, as identified by Mr Kingston, was the mother of Cygnet. There is another difficulty, that being that the evidence (which I accept) indicates that Minnie Bordatarr did not bear any children.

55    I consider it appropriate to adopt the findings of Gray J and of Mansfield J. There is no evidence in the present proceedings giving cause to doubt their reliability. I accept the evidence of Ms English concerning what she was told by Franklyn Johns, Harold Johns and Lorna Motlop. There is no reason to doubt its reliability. In saying that, I am not overlooking that the evidence does not explain how Minnie Lily, a Larrakia woman, came to be on Nutwood Downs in about 1898 and in a relationship with John McLennan. However, the absence of explanation does not render implausible the findings and evidence as to the identity of Cygnet’s mother to which I have referred.

Membership by non-descent

56    There are mechanisms by which individuals can be recruited and recognised as members of an Alawa estate group other than by descent. The description of the claim group in the application for determination of native title recognises that that is so.

57    The principal method of recruitment and recognition is by formalised adoption. Ms English addresses what she describes as a “well established and continuing practice of formal adoption of individuals, by and between senior Alawa men and women, into patrilineal estate groups”, at [35].

58    Ms English’s research indicates that adoption by itself is usually insufficient, as induction into ceremonial roles associated with the patrilineal estate group’s “country of adoption” is also important. Ms English gave examples of persons who had been adopted into a patrilineal estate group. These include Brian Farrar to whom I will refer later. It is pertinent that her field work concerning this topic included an interview with Mr Ellaga who at that time was the senior Mingirringgi of the Guyal group.

59    Another means by which a person may be recruited to a patrilineal estate group is succession. This occurs when, by reason of demographic accident, effects of disease, forced movement or other causes, there is a dramatic reduction of Mingirringgi associated with a patrilineal estate group. In circumstances of that kind, the Junggayi and/or senior knowledgeable people will recruit, from an adjacent (neighbouring) patrilineal estate of the correct semi-moiety, some young Mingirringgi to be inducted into ceremonies of the depleted group. Ms English describes succession as often occurring when the estate group or “country” lacking Mingirringgi eventually become merged with a contiguous one (on the same dreaming track), so that one land holding group assumes responsibility for what were formerly two distinct estate groups linked by the same ancestral (dreaming) tracks.

60    Finally, Ms English describes a process by which Mingirringgi rights in a “country” may also be gained by a person whose “animating” (conception) spirit was “found” in a “country” other than that of his father and father’s father, providing that this claim is approved by the relevant and senior Mingirringgi, Junggayi and Darlnyin.

61    Ms English considered the possibility of Mr Kingston or his ancestors having been incorporated into an Alawa estate group by adoption, succession or concept affiliation. In addition to relying on her own ethnographic research, Ms English reviewed the body of anthropological research pertaining to land and native title claims identifying estate groups associated with the Alawa Language Group and the neighbouring Ngandji Language Group. Ms English reports that “[t]here are no anthropological records of Cygnet Ada McLennan, or her daughters Violet Annie Elizabeth Farrar Ross and Nancy Mary Elizabeth Farrar or any of their descendants, including Mr Cecil Damaso and Mr Kevin Kingston, as being members of one or more of the five estate groups for Nutwood Downs pastoral lease by virtue of adoption or non-descent connections”. Ms English goes on to report that there is no record of any one of these people being members of a neighbouring estate group by virtue of adoption or non-descent connection, at [78].

62    Although Ms English’s informants, who included Mr Ellaga, detailed the adoption of some individuals, and succession arrangements in relation to two groups, no one made reference to Cygnet Ada McLennan, Violet Annie Elizabeth Farrar Tybell Ross and Nancy Mary Elizabeth Damaso or any of their descendants being Mingirringgi through adoption or through any mechanism of non-descent connection of one or more of the five estate groups claiming native title over the Nutwood Downs Pastoral Lease area.

63    Accordingly, Ms English concluded:

[84]    My ethnographic data is consistent with accepted anthropological research … that Cygnet Ada McLennan and descendants of her children, Violet Annie Elizabeth Farrar Ross and Nancy Mary Elizabeth Farrar Damaso, including Mr Kevin Kingston and Mr Cecil Damaso, are not recognised, thereby not recorded, as members of one or more of the five estate groups for Nutwood Downs by virtue of adoption, or as being a member of one or more neighbouring Alawa estate groups by virtue of adoption. Accordingly, any one of these people could not have acquired:

(a)    Junggayi rights and responsibilities through an adopted father’s mother for one or more of the five estate groups;

(b)    Mingirringgi rights through succession to one or more of the five estates.

64    In his cross-examination, Mr Kingston acknowledged that he had not been adopted into an estate group by any senior member in a ceremony. He emphasised instead that he had been accepted by Mr Ellaga and some others as being “family”. Mr Kingston was, however, unable to say, one way or the other, as to whether he was Mingirringgi for the Guyal estate group, saying, “I’m still learning”. He was also unable to say, one way or the other, whether his grandmother Violet was Mingirringgi, Junggayi and Darlnyin for the Guyal estate. In general, it was evident that Mr Kingston has only a limited understanding of the social organisation within the claimant group. It was also evident that Mr Kingston did not know where the Guyal estate is within the area of Nutwood Downs.

65    Mr Ellaga’s acceptance of Mr Kingston as “family” did not, on the evidence, involve the processes of induction or reception described by Ms English. Her memorandum indicates that Mr Ellaga had appreciated that that was so.

66    Having regard to these matters, I conclude that Mr Kingston is not a member of the native title claim group by reason of adoption, succession or concept affiliation.

Other native title holders

67    The third alternative by which Mr Kingston may be a member of the native title group is if he is an “other Native Title Holder” as described in [14] of Sch A to the application. To be a native title holder of this kind, Mr Kingston would have to be a person who, in accordance with traditional laws and customs, has rights and interests in respect of the claim area, subject to the rights and interests of estate group members and either a member of an estate group from neighbouring estates or a spouse of the estate group members. There is no evidence supporting the conclusion that Mr Kingston, or his genealogical ancestors, are members of a neighbouring estate group, or the spouse of members of the five estate groups. Mr Kingston does not claim that his wife, Marisa, is a member of the native title claim group as described in Sch A of the application. In his cross-examination, Mr Kingston acknowledged that he did not claim to be a member of any neighbouring estate group.

68    I conclude therefore, that Mr Kingston is not a member of the native title claim group by virtue of [14] of Sch A to the application.

Miscellaneous

69    Mr Kingston feels a form of connection to Nutwood Downs. I accept that that feeling is genuine. It arises from the circumstance that his grandmother and her two siblings were born on Nutwood Downs and, as Mr Kingston understands it, under a tamarind tree. Although each member of that generation was removed from Nutwood Downs at a tender age, and their connections with the country since then appear to have been limited, Mr Kingston nevertheless has a strong feeling of connection. He has been exploring his family connections to Nutwood Downs since 2006. It has been gratifying to him that on his occasional trips to Nutwood Downs, he has been welcomed and recognised as a descendant of Violet. Mr Ellaga and others (including Brian Farrar and Moses Silver) have welcomed him as family.

70    However, this is insufficient for Mr Kingston to be a member of the native title claim group. His evidence and his submissions did not recognise the distinction which Mr Ellaga himself had drawn between a “family connection” on the one hand, and status as a member of an estate group, on the other. Accordingly, although I accept Mr Kingston’s evidence that he had been welcomed by members of the native title claim group and treated in some respects as “family”, this does not mean that he has thereby acquired the status of a traditional owner so as to come within the native title claim group.

71    Mr Kingston relied in particular on evidence that he has been welcomed as family by Brian Farrar. He calls Mr Farrar “Dad” and said that he has been introduced by Mr Farrar as his “Son”. Attached to Mr Kingston’s affidavit filed on 17 June 2016 is a typed note dated 31 May 2016 which reads:

We as the family of Kevin Farrar-Kingston recognise him & descendants through their grandmothers Violet Farrar & Nancy Farrar who were removed from Nutwood Downs because of mixed bloodline (Aboriginal) in 1918/19 to Bathurst Island.

72    The note appears to be signed by Brian Farrar, Brian’s sister in law, Shelia Conway, and by Shelia’s carer, Simone Baker. However, Mr Kingston acknowledged in cross-examination that the “common family link” between him and Brian Farrar exists because of the non-Aboriginal brothers, John Samuel Farrar Jnr and Robert Farrar. Mr Kingston’s great grandfather (Violet’s father, John Samuel Farrar Jnr) was a brother to Robert Farrar (Brian’s father). Brian Farrar is a Mingirringi of the Guyal estate group through his adoption by Tommy Yananyinginu, but his Mingirringi rights and interests extend only to his children. They do not extend to descendants of John Samuel Farrar (Jnr) who was a non-Aboriginal man. I accept the evidence of Ms English about these matters. Mr Kingston acknowledged in his cross-examination that he does not rely on his relationship with Brian Farrar as a basis of membership of the native title group.

73    I conclude that the evidence of Mr Kingston’s connection with Brian Farrar is not evidence that he has been adopted in the relevant sense so as to come within the native title claim group.

74    As noted earlier, the notice filed by Mr Kingston on 16 October 2014, included the statement that “custodianship of this country was handed back to me by my father, head Junggaiy to Nutwood Downs/Cox River Cecil Farrar/Damaso before his passing in 2013”.

75    Mr Kingston does have a biological relationship with the late Cecil Damaso as Cecil’s mother and Mr Kingston’s grandmother were sisters (Violet and Nancy). There are, however, at least two difficulties with Cecil Damaso providing a basis upon which Mr Kingston could be regarded as a member of the Native Title Claim Group.

76    First, Mr Kingston did not give any evidence that the matters said to constitute the “handing back” to him of country by the late Cecil Damaso.

77    Secondly, Ms English, whose evidence I accept, had investigated specifically Mr Kingston’s claim to membership of the Native Title Claim Group on this basis. This included “a series of group interviews involving senior, middle and junior ranking Mingirringgi, Junggayi and Darlnyin of each of the five estate groups, including Barney Ellaga and Brian Farrar, and members of the neighbouring Alawa Estate Groups”.

78    Ms English summarised the results of these interviews as including:

[83]    (a)    There was consensus among Aboriginal informants that Minnie Lily, Cygnet Ada McLennan, Violet Annie Elizabeth Farrar Tybell Ross and Nancy Mary Elizabeth Farrar Damaso are unknown to Alawa people.

(b)    Aboriginal informants, including Barney Ellaga, Brian Farrar and Bradley Farrar, unanimously rejected any claim that these women, or their descendants, including Mr Kevin Kingston and Mr Cecil Damaso, have been adopted, under any arrangement, as Mingirringgi for one or more of the five estate groups for Nutwood Downs pastoral lease, or as Mingirringgi for any other estate group associated with the Alawa language group. Neither Mr Kevin Kingston nor Mr Cecil Damaso have been ‘given’ an Alawa name or given a sub-section (‘skin’ name) and thereby classified into semi-moiety category.

Ms English said that she had been told this “consistently” by her Alawa informants.

79    Ms English went on to report that her own ethnographic data was consistent with accepted anthropological research which indicated, amongst other things, that Cygnet Ada McLennan and the descendants of her children Violet and Nancy, including Mr Kingston and the late Cecil Damaso, are not recognised as members of one or more of the five estate groups for Nutwood Downs by virtue of adoption, or as being a member of one or more neighbouring Alawa estate groups by virtue of adoption.

80    Finally, Ms English concluded:

[93]    I have considered the relevance of Mr Kingston’s asserted relationship with Mr Cecil Damaso. Mr Kingston has a close biological relationship with Mr Cecil Damaso who is a son of Nancy Mary Elizabeth Farrar-Damaso and her non-Aboriginal husband Basilo Damaso. Mr Kingston’s mother, Violet Annie Elizabeth Farrar Tybell Ross is the sister of Nancy Mary Elizabeth Farrar-Damaso. Paragraphs [58-85] set out the facts, accepted anthropological research and ethnographic data obtained from my field research I have considered in reaching my opinion that Mr Cecil Damaso is not a member of the native title claim group for Nutwood Downs pastoral lease by virtue of descent including adoption. Accordingly, Mr Cecil Damaso is not a primary native title holder as described in Schedule A and therefore has no rights to speak for ‘country’ in relation to Nutwood Downs pastoral lease. In my opinion Kevin Kingston’s biological relationship with Mr Cecil Damaso is not relevant to the claim that he or any one of Cygnet Ada McLennan and descendants of her children, [Violet and Nancy], are members of the native title claim group for Nutwood Downs pastoral lease.

81    Thus, Ms English’s anthropological opinion does not support this basis of Mr Kingston’s claim. I have indicated previously that I accept Ms English’s evidence.

82    Mr Kingston’s notice of 16 October 2014 also referred to the country having been handed to him by the late Mr Ellaga. For the reasons already stated, I accept that Mr Ellaga may have welcomed Mr Kingston as “family”. However, more than such an acceptance would be required in order for Mr Kingston to be a member of an estate group in accordance with the laws and customs of the Alawa People. The evidence does not support that conclusion.

Summary

83    In summary, for the reasons stated above, I am satisfied on the evidence that Mr Kingston is not a member of the native title claim group as described in Sch A to the application for the determination of native title. The separate question should, accordingly, be answered in the negative. I will hear from the parties as to the orders which are appropriate to give effect to that conclusion.

Associate:

Dated:    18 October 2016

SCHEDULE OF PARTIES