Federal Court of Australia

Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 2, the parties confer and prepare a determination of native title consistent with their prior agreements and the Court’s reasons for judgment delivered today.

2.    If any party wishes to contend that the determination of native title to be made by the Court not include a non-exclusive native title right expressed as “to access and take for any purpose resources in the claim area”;

(a)    each party so contending file and serve written submissions limited to 5 pages on or before 5 November 2021;

(b)    any other party file and serve written submissions limited to 5 pages as to its position on or before 26 November 2021.

3.    The proceeding be listed for the making of final orders on a date to be fixed.

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

REASONS FOR JUDGMENT

TABLE OF CONTENTS

RARES J:

1    The Kurtjar people seek a determination under s 225 of the Native Title Act 1993 (Cth) of non-exclusive native title over a large area of land and waters. The Kurtjar people’s traditional land and waters are located in the south-west of Cape York, extending inland from the Gulf of Carpentaria in the State of Queensland.

2    One of the three issues in this proceeding is whether the Kurtjar people have been the traditional owners of, either since before 26 January 1788, when Capt Arthur Phillip claimed British sovereignty or, and by what process, have succeeded to, the land and waters, included in a large pastoral lease holding, Miranda Downs, to the east of what is undisputed Kurtjar country (the succession issue). The Kurtjar people and the State accept that Kurtjar country now includes Miranda Downs, but the holder of the pastoral lease over it, Stanbroke Pty Ltd, disputed this at all times until 9 July 2021 when it sold its interest to Hughes Holdings and Investments No 700 Pty Ltd, which became a respondent under s 85(4) of the Act. By consent on 28 September 2021, Hughes agreed that it would be bound by previously agreed statements of fact on extinguishment and would only make submissions as to the form of any orders to give effect to these reasons.

3    The essential dispute involved in the succession issue centres around whether the connection that the Kurtjar people now have in managing and exercising control over the spiritual potency of Miranda Downs has been continuous since before sovereignty, as they contend, or has evolved, as the State and, alternatively, the Kurtjar people contend. In contrast, Stanbroke contends that the Kurtjar people’s connection with Miranda Downs, needed to, but did not, evolve, by a process of licit or normative succession to the rights and interests of one or more now extinct indigenous peoples (the Walangama people, and or the people variously called the Ariba, Aripa or Rib people) who, pre-sovereignty, held native title rights and interests in the land and waters of Miranda Downs.

4    The other issues are:

(1)    whether, as the applicant (comprising Joseph (Joey) Rainbow, Irene Pascoe and Shirley McPherson) contends, eight persons should be included as apical ancestors of the Kurtjar people in the description of the present common law holders of the native title rights and interests of Kurtjar country (the apical ancestor issue); and

(2)    the correct description of one non-exclusive right and interest that will be recognised in a determination of native title, namely “the right to access natural resources and to take, use, share and exchange those resources for any purpose” with, or without, a limitation for which the State contends constraining commercial exploitation (the right to take resources issue).

5    There have been several spellings of the English language rendering of “Kurtjar”, including “Kurtijar”, used earlier in this proceeding, but I will use in these reasons the version that the applicant has now adopted.

1    Preliminary matters

1.1    Brief chronology

6    The Kurtjar people’s first contact with Europeans was when Ludwig Leichhardt’s expedition arrived in 1845. One of his party, John Gilbert, a naturalist, was killed in an attack by Aboriginal people and the Gilbert River was named in his memory. In 1868, the township of Norman River was established, which later was called Normanton. The impact of European settlement, which began in the mid to late 1860s, in the Gulf country was profound, as it has been in most of Australia.

7    In the late 1960s, the Queensland Government moved many first nations persons then living in camps on pastoral stations into a reserve at Normanton (the Normanton reserve).

8    In the 1970s, a linguist, Dr Paul Black, conducted linguistic research with Kurtjar speakers, including an elder, Rolly Gilbert, who appears to have been one of Dr Black’s principal informants. Dr Black supported the attempts of Kurtjar people to obtain ownership of a pastoral lease of Delta Downs station. In the course of those efforts he made a map with Rolly Gilbert (the Black and Gilbert map) that purported to identify Kurtjar country as centred on Delta Downs. Stanbroke emphasised that this map did not include, as Kurtjar country, Miranda Downs and other large parts of what is now the claim area to its east.

9    In 1982, the Aboriginal Development Commission of the Commonwealth acquired the lease of Delta Downs on behalf of the Kurtjar people. In 2002, that lease was transferred to Morr Morr Pastoral Company Pty Ltd which continues to hold it for the benefit of the Kurtjar people.

10    Below is a map of the claim area with pastoral lease boundaries and annotations of significant sites recorded by Dr Richard Martin, who was the applicant’s expert anthropologist.

11    The Miranda Downs pastoral lease is in the south-east of the claim area, below the Vanrook pastoral lease to its north. Vanrook station also extends along the western boundary of Miranda Downs. The southern boundary of Miranda Downs is also within the claim area. Stirling/Lotus Vale station (the two stations are now merged) is a smaller holding between Delta Downs on its west, Vanrook on its north-east and Miranda Downs on its east and south-east. The Dorunda pastoral lease is located in the north-east of the claim area, south of the Staaten River. Delta Downs station is located to the west of the claim area.

12    The parties’ expert anthropologists, Dr Martin, Dr Kingsley Palmer, retained by the State and Dr Ron Brunton, retained by Stanbroke (with Dr Kevin Murphy, who had been retained by the owners of the Vanrook, Stirling/Lotus Vale and Dorunda pastoral leases, namely, Vanrook Station Pty Ltd, Stirling/Lotus Vale Station Pty Ltd and Dorunda Station Pty Ltd (the Gulf Coast parties)) met together on 28 and 29 March 2019 and again on 16 April 2019, and, with the assistance of the Registrar, prepared two joint reports.

13    On 16 August 2019, the solicitors for the Gulf Coast parties emailed the other parties and the Court to advise that the Gulf Coast parties would no longer contest the claim of the Kurtjar people to non-exclusive native title rights and interests in the area of each of Vanrook, Stirling/Lotus Vale and Dorunda stations. That occurred shortly before the on country hearing began on 27 August 2019. The Gulf Coast parties changed their position after I refused them leave to adduce further evidence from Dr Murphy, in which he sought to withdraw from the position he had agreed with the other experts in the second joint report, namely, that the Kurtjar people held rights and interests in the land and waters of Vanrook, Stirling/Lotus Vale and Dorunda stations: Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1638.

14    The Court sat on country at the Delta Downs homestead when not visiting sites in the claim area.

1.2     Agreed facts

15    The parties filed a statement of agreed facts and substantive issues in dispute as to connection on 23 July 2019. Much of the basis for the agreement on those facts came about from the two joint expert reports.

16    The parties agreed as facts that:

    prior to sovereignty, and at effective sovereignty (i.e. when European settlement occurred in the claim area), there were Aboriginal peoples in occupation of the claim area;

    those peoples acknowledged and observed a common body of normative laws and customs by which they held rights and interests in, and had connection with, the claim area (pre-sovereignty laws and customs) that are likely to have included those claimed in the application, including (relevantly, to the right to take resources issue) “the right to access natural resources in those areas and to take, use, share and exchange those natural resources for any purpose”;

    the Kurtjar people and their ancestors have continued to acknowledge and observe at least some of the pre-sovereignty laws and customs;

    the Kurtjar people’s contemporary system of laws and customs under which rights in land are held remains rooted in the pre-sovereignty system of laws and customs, notwithstanding that parts of the system have undergone varying degrees of adaption, loss and change;

    the rights and interests so held in land and waters are inalienable and held communally;

    since effective sovereignty, it is likely that estate groups (i.e. a group with native title rights and interests in the particular land and waters) in relation to parts of the claim area have become extinct and those areas are now included in the claims of the Kurtjar people;

    the pre-sovereignty laws and customs provided for succession to country in situations in which a group holding rights became, or was becoming, extinct;

    succession did not necessarily occur on the basis that the neighbouring clan estate would succeed to the country of the extinct or nearly extinct clan estate; and

    a critical component of succession in the region in which the present claim is made was that the succeeded and the succeeding clans had to share spiritual correspondence, such as totemic commonality, shared dreaming tracks, spirits and associated rituals.

1.3    Proof of historical matters

17    Both the common law and the Evidence Act 1995 (Cth) address the question of how to prove what laws and customs once existed and their content, even though no-one is now alive who can testify about what occurred in the past and there is no written documentation of that subject matter, as is often the case with cultures that, like Australia’s First Nations peoples, had no written tradition.

18    First, s 74(1) of the Evidence Act provides that the hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right. Secondly, s 140(2) requires a court, in deciding whether it is satisfied that a party has proved its case on the balance of probabilities, at a minimum, to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. At common law, evidence of rights and events alleged to have existed or occurred beyond living memory can be proved by both expert evidence and lay evidence of living persons, including members of groups claiming to hold native title or similar rights (which Lord Cohen, giving the opinion of the Judicial Committee comprising Lord Normand, Lord Reid and himself, termed “traditional evidence”: Stool of Abinabina v Chief Kojo Enyimadu [1953] AC 207 at 216).

19    In Gumana v Northern Territory (2005) 141 FCR 457 at 510–511 [194]–[201], Selway J discussed the method of proving custom and genealogies by oral evidence where there is no, or limited, documentary evidence or where the fact to be proved occurred at a “time immemorial”. He said that the difficulties in obtaining evidence from times well past “were ameliorated by the readiness of the common law courts to infer from proof of the existence of a current custom that that custom had continued from time immemorial” (at 511 [198]).

20    In Sampi (on behalf of the Bardi and Jawi People) v Western Australia (2010) 266 ALR 537 at 558 [63], North and Mansfield JJ said:

On the basis of this and like evidence the primary judge should have found that the Bardi and Jawi people acknowledged the same laws and observed the same customs concerning rights and interests held in land and waters at least from the present back until the time of these witnesses’ “old people” or grandparents, namely, the latter part of the 19th century.

The question then arises whether the court can infer the existence of that acknowledgement and observance from about the latter part of the 19th century back to sovereignty. Selway J addressed this issue in Gumana v Northern Territory (2005) 141 FCR 457; 218 ALR 292; [2005] FCA 50 and said at [201] by reference to the history of the approach of the common law to the proof of custom:

[201] … where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.

In the present circumstances the constitutional status and elaborate nature of the rules in question make it improbable that the system arose in the relatively short period between sovereignty and the time of the witnesses’ “old people”…

(emphasis added)

21    And, in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 at 99–100 [341]–[343], Lindgren J applied Gumana 141 FCR at 510–511 [194]–[201], noting that an inference should be drawn by applying logic and human experience to the facts proved by admissible evidence: see too Isaac (on behalf of the Rrumburriya Borroloola Claim Group) v Northern Territory (2016) 339 ALR 98 at 133 [222] per Mansfield J; Mason v Tritton (1994) 34 NSWLR 572 at 586E–588E per Kirby P, 604D–F per Priestley JA with whom Gleeson CJ agreed at 574C; The Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 at 137–138 per Isaacs J.

22    In reaching his conclusion in Gumana 141 FCR at 510–511 [194]–[201], Selway J drew on the lucid exposition by Sir George Jessel MR in Hammerton v Honey (1876) 24 WR 603 at 604 of the principles that applied at common law to determine whether a right could be claimed by custom, as opposed to by prescription. Jessel MR explained (at 603) that at common law:

… A custom… is local common law. It is common law because it is not statute law; it is local common law because it is the law of a particular place as distinguished from the general common law. Now, what is the meaning of local common law? Local common law, like general common law, is the law of the country as it existed before the time of legal memory, which is generally considered the time of Richard I.

(emphasis added)

23    Jessel MR said that the common law of a place, as a general rule, was proved by usage. He held that any usage to prove a custom as an exception to the general common law had to be both reasonable and continuous, that is “there must be long, continuous, habitual usage without interruption”. He explained that this conclusion followed from the fact that people do not usually acquiesce in the disturbance of their rights (at 603–604). As Jessel MR recognised (at 604):

It is impossible to prove actual usage in all time by living testimony. The usual course taken is this: persons of middle or old age are called, who state that in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that the usage has prevailed from all time.

(emphasis added)

24    The Master of the Rolls said that there were two kinds of countervailing evidence, namely, first, that of other old persons who testify to the contrary of what their counterparts had said and show that there was interruption to the usage, or, secondly, evidence that, based on the nature of the case, there was a legal difficulty or obstacle that made the alleged assertion of the right impossible. And, as Jessel MR recognised, both prescription and custom “are legal fictions invented by judges for the purpose of giving a legal foundation or origin to long usage” (at 604).

2     The lay evidence

2.1    Kurtjar evidence

2.1.1    Fred Pascoe

25    The Kurtjar people have a traditional custom or ritual of “warming up” persons who are strangers to their country. This consists of the Kurtjar person rubbing sweat from his or her underarm on the stranger’s face and body. The purpose is to inform the Kurtjar spirits, that might otherwise harm the stranger, that he or she has come onto Kurtjar country properly (i.e. with permission from a Kurtjar person able to grant such authority). In addition, as Fred Pascoe, who was born in 1967, said:

When I go to places that I haven’t been before on Kurtijar country, if I’m there with old people they sing out. Otherwise I sing out and introduce myself, say who I am and where I come – well, what I’m there for.

26    Fred Pascoe said that, as a Kurtjar, he could go anywhere on Kurtjar country “as long as I sing out to… the spirits of my ancestors”. He tells them who he is in Kurtjar language, to whom he is connected and what he is there for, such as “to get wanthork (fish), or yaangirr (turtle)”.

27    His mother, Irene Pascoe (a member of the applicant), was Kurtjar, but his father was not. He said that when his grandfather, Jubilee Slattery, an elder and leader of the Kurtjar people, or another took him to a place on Kurtjar country for the first time or to one that the person did not visit regularly, his grandfather (or other old people) would call out in Kurtjar language to let the spirits know who they were, what they were doing there and why they had come.

28    Fred Pascoe’s grandfather, Nardoo Burns, gave his totem, the black cockatoo, to Mr Pascoe and later told him: “That’s all our old people, that’s our totem, that’s where we go when we finish… we come from the Smithburne [River]”. He said that his grandparents had explained to him that the significance of having a totem was that “[i]t ties me to that country… to the animals of that country” and that “the red black cockatoo is our ancestor, so he ties me to this country” as an aspect of the Dreamtime, when “the animals walked this earth in that time as our… ancestors”. Fred Pascoe told Dr Martin that Nardoo Burns had said that the black cockatoo was the totem of his brothers, most of whom were born on the Smithburne River, and that their family came from the Smithburne River. Fred Pascoe also said that Nardoo Burns had told him that Judy and Biddy Captain were both born and reared on the Smithburne River and that they married two Staaten River men; namely Tommy Burns (Nardoo Burns’ father) and Rainbow Christie. He said that Nardoo Burns did not tell him how the family got the black cockatoo as its totem. Fred Pascoe also told his children that it was their totem and whenever he sees one flying he tells his children: “That’s our old people flying… don’t be afraid because that’s our old people who have gone before”.

29    Fred Pascoe grew up at the bottom camp on the Normanton reserve at which only Kurtjar people lived. The reserve was established in 1948 for Aboriginal people. Its population increased in the 1960s when indigenous stockmen and their families were forcibly removed from the pastoral holdings on which they worked. The reserve was discontinued in about the late 1970s or early 1980s. It was not on Kurtjar country. Fred Pascoe said that he and others living at the reserve would swim and, depending on the season, fish various species in the Norman River. He said that a mixture of Aboriginal persons, including Kurtjar, Gkuthaarn and Kukatj, lived at the top camp at the reserve because of inter-marriages. He remembered corroborees occurring regularly outside Jubilee Slattery’s house. He said that these kept Kurtjar culture active with, mainly men, singing old songs in Kurtjar and dancing traditional dances. He said that the children participated and learnt the songs and dances.

30    Jubilee Slattery and his wife, Lily, took their grandchildren, including Fred Pascoe, and others hunting on Kurtjar country, including, relevantly, on Miranda Downs, at Glencoe and Picnic Waterhole (both located at or around the western edge of Miranda Downs). They visited the Mail Chain Yard (which was used to hold or receive mail), near Walker’s Creek and Kitty’s Hole, both of which are located well inside Miranda Downs. Fred Pascoe said that his grandfather “would always sing out to our old people at those places”.

31    Fred Pascoe recognised that, as with him and his family in respect of Myra Vale station on the Smithburne River (which is now an outstation on Delta Downs), some families have a particular connection with an area on Kurtjar country. Where that is the case, if he intends to visit there, he will inform that family, or one of its members, both as a courtesy and because “it’s more so to protect me as well in case being younger… I might not have the intimate knowledge of that country that someone who’s senior… would have”. This is necessary to ensure that where he wants to visit is not, for instance, a bora ground, a burial ground or an area where Kurtjar law prohibits some activity or there is spiritual danger.

32    Fred Pascoe explained that in the early 20th century, Kurtjar and other Aboriginal peoples were rounded up and put into camps to live on cattle stations or, if they did not go into the camps, the pastoralists shot them. Thus, each of the pastoral leaseholdings, like Delta Downs and others that are within the claim area, namely, Miranda Downs, Vanrook, Stirling/Lotus Vale, and Macaroni (which was in the north-west) had camps filled predominantly with the Aboriginal clan or tribe on whose country the station was located. Because those people knew their country well, the pastoralists could use them as ringers and stockmen.

33    As a child, Fred Pascoe was a frequent visitor to a camp of Kurtjar people at Glencoe after it had become part of Miranda Downs station in the 1970s. He remembered that Fred and Jane Midlan, Barney Rapson (senior) (being the husband of Doris Rapson, née Buckley: various witnesses spell his name as either “Barnie” or “Barney” and I have used “Barney” in these reasons to signify this person), his brother, Royal Tommy, and Katie Tommy (née Burns, who was Mr Pascoe’s grandmother) were working there. Mr Pascoe said that the then manager of Miranda Downs, Phil Schaffert, was supportive of using Aboriginal ringers who lived in the camp at Glencoe. Mr Pascoe worked with lots of older Kurtjar men, including his grandfather, Nardoo Burns, Fred Midlan and Sandy Rainbow, as well as his uncles, Roy Beasley, Rolly Beasley, Warren Beasley, Paul Casey, Hector Casey and Frank Casey, who told him about Kurtjar sites not only on Delta Downs, but also on other stations including Miranda Downs. They told Fred Pascoe, from the time he was a child, that Miranda Downs was Kurtjar country and took him there to fish and hunt. When they went onto Miranda Downs:

… whether it was with Jubilee Slattery or with some of the other elders, they’d – you know, they’d sing out in our language and told the spirits that we were there, our old people….And they used to tell us kids, “This is your country, you’re right to come here and you can fish at this waterhole and you can shoot that wallaby off that land, and you can hunt and fish.”

34    Mr Pascoe recounted that the “old fellas” with whom he worked on cattle stations always talked about a senior lawman, Saltwater Jack, who was an acknowledged Kurtjar tribal leader. The old fellas described Saltwater Jack’s status and travels around Kurtjar country. They told him that Saltwater Jack swam in the Gilbert River in flood (in the south of the claim area), went to visit Kurtjar people on Macaroni station (in the north-west) for ceremonies, the Staaten River area (in the north) in the wet season to participate in Kurtjar corroboree and would walk through to Vanrook and Miranda Downs stations to see family. Mr Pascoe had always been told that the Kurtjar people’s southern boundary was the Norman River.

35    Importantly, Fred Pascoe said that he believed that, under Kurtjar law, he had a right to the resources of his country without limitation and “I can take what I want as long as I don’t break the laws of my country – my people” and “I have the right to take those resources… as long as I don’t break my laws in doing that… That’s my resource. That’s my country”.

2.1.2    Warren Beasley

36    Warren Beasley was born under a tree in 1947 on Myra Vale station. He calls the tree, which is still standing, “mil ntoong, my home. It means that’s mine”. He was a knowledgeable Kurtjar elder and a laakinchargh or witchdoctor. He gave detailed evidence at the hearing. His father was Beasley Bumble, who was the son of Bumble B. Bumble B was the equivalent of a king of the Kurtjar.

37    Bumble B was a ringer who spoke Kurtjar and taught his grandson, Warren Beasley, about his family. Warren Beasley had retired by the time of the hearing and lived at Delta Downs. Over the years, he worked with many senior Kurtjar men on various stations in Kurtjar country who showed and told him of how far Kurtjar country extended, important Kurtjar places, secret places, poison grounds and Kurtjar laws. Warren Beasley said that, when he was young, Bumble B told him that he had worked at, and knew a lot about, Miranda Downs and that he (Warren Beasley) should see Miranda Downs for himself. In his youth, Warren Beasley worked a lot with Bumble B on stations.

38    When Warren Beasley worked as a ringer and stockman on Miranda Downs, Bumble B visited him from his home on Myra Vale. They rode to places over a week or so at a time, where Bumble B showed Warren Beasley burial, bora, poison, dangerous and secret grounds. Bumble B showed his grandson areas to which he warned him not go on his own because “you won’t come back”. They went riding with Royal Tommy to the junction of the Einasleigh and Gilbert Rivers, which was near the old Miranda Downs homestead, and both older men told Warren Beasley that the extent (in effect, the eastern boundary) of Kurtjar country was up to the Einasleigh River and that on the other (eastern) side of the junction was Tagalaka country. The older men told Warren Beasley that he could not go across that boundary. They also showed him burial sites nearby. In video evidence, Warren Beasley pointed out where Bumble B and Royal Tommy had told him that two Kurtjar men were buried at a site near the current Miranda Downs’ homestead.

39    Bumble B and Royal Tommy told Warren Beasley that as the Gilbert River flowed west towards the sea, it ran through Kurtjar country, traversing, among other land, Miranda Downs. Warren Beasley said that the Smithburne River (which runs north-west towards the Gulf a relatively small distance south of the Gilbert River) was also on Kurtjar country. They showed him the out camp at (Wild) Rice Lagoon (which is north-west of the junction of the Einasleigh and Gilbert Rivers), where Warren Beasley’s younger brother, Rolly, worked as caretaker when Warren Beasley also worked on Miranda Downs. The older men told Warren Beasley that this was also Kurtjar country.

40    Bumble B and Royal Tommy also took Warren Beasley to numerous places along Walker’s Creek (which runs south-west towards the Gulf, further south again from the Smithburne River), including Rocky Waterhole, Kitty’s Yard (an old bronco yard) and Kitty’s Hole. Warren Beasley said that there was a permanent waterhole at Kitty’s Yard with the Kurtjar name Injerrilk. There were spirits of old fellas all around there. Royal Tommy, Bumble B and his parents also told Warren Beasley that the country between Rocky Creek (that flows into the Carron River, well south of Bayswater waterhole) and Walker’s Creek to its north was Kurtjar country. That area lies to the south and west of the old Miranda Downs homestead, and Rocky Creek and the Carron River both flow west, south of Kitty’s Hole.

41    The southern boundary of the claim area for this application follows the Carron River from the extreme south-west point of the western boundary and then follows Rocky Creek to the east for some distance until the boundary heads north-east below Kitty’s Yard.

42    Warren Beasley said that old Tagalaka men were also working on Miranda Downs when he was there with Royal Tommy, Bumble B and Beasley Bumble. The elders told him that he had to protect and visit Miranda Downs “and I also even talk Kurtjar – because they’re all Kurtjar and the spirits understand what I mean”.

43    Warren Beasley visited Kitty’s Yard, on Walker’s Creek, with Joey Rainbow, Lance Rapson, Irene Pascoe, two of his grandchildren and the applicants’ lawyers where they made a video that was in evidence. During this video, Warren Beasley explained that when they arrived, because they had not there before, he had warmed up both his grandchildren and the lawyers by putting his underarm scent over them and blowing in their ears “so they don’t get sick… and they won’t be annoyed by the old fellas”. As Joey Rainbow explained, it was necessary for Warren Beasley to warm the grandchildren up, even though they were Kurtjar. That was because Kurtjar law and custom required a Kurtjar person who had not been to a site before to be introduced, to let “the old people know that we [were] bringing them young ones through… [w]hen they first visit”. He said that Kitty’s Yard was Kurtjar country and there was a chacharr in the waterhole there as well as spirits of old Kurtjar ancestors.

44    A chacharr is a rainbow serpent or spiritual being that Kurtjar people believe lives in waterholes. They believe that if they go to a waterhole where a chacharr is, they must be quiet and show respect else the chacharr will make them sick, cause them to become lost or, as Warren Beasley described it, “you will walk away and not know how to come back”. He said that one could not dig, make a disturbance or throw matter into the waterhole because that would upset the chacharr, which would then leave and cause the waterhole to go dry. As Warren Beasley explained, if a stranger wants to visit a waterhole where a chacharr is, he or she needs to get permission and must be warmed up by a Kurtjar person, who then also rubs wet mud on him or her and blows in the person’s ears to protect them. If that occurs, the stranger can then safely go into the water.

45    The Kurtjar also believe that one cannot take greasy food or have greasy hands near the water because if the chacharr smells the grease, it will make the person sick. However, a Kurtjar person can wash or clean his or her hands with mud from the bank before going near the water without needing to be warmed up properly, as a stranger would need to be (using the ceremony described above). In addition, Kurtjar people believe that pregnant women must not go into waterholes where a chacharr is because it will smell her and both she and the baby will become sick, unless she is protected by having mud rubbed all over her. Warren Beasley said that all Kurtjar women are told this story.

46    Moreover, Warren Beasley, as a witchdoctor, can use a chacharr to help a Kurtjar woman fall pregnant when a couple is having trouble conceiving. The male tells the laakinchargh and he gets the couple to go into the water at a waterhole where a chacharr is present. The woman will be unaware of the chacharr, which will then bite her on the stomach. She will say that something in the water bit her there, and the laakinchargh will tell her that it was something such as a little fish, but, in fact, will know that the chacharr put a baby there. Importantly, once the woman is pregnant she cannot go back into the water.

47    Warren Beasley became a laakinchargh like his father and grandfather (Bumble B). This occurred when Warren Beasley was being chased by another dangerous spiritual creature, a red legged (or leg) devil (dhaarrichergh). The chacharr protected him by swallowing him until the red legged devil went away, when it regurgitated him. After this, he had healing and other powers. Warren Beasley said that a red legged devil would not come to a waterhole which had a chacharr if it wanted to harm him because the chacharr would protect him. He said that he is the only laakinchargh. Warren Beasley believed that, as a laakinchargh, he could make it rain during the dry season by going to a waterhole where a chacharr is and either breaking its tail (dhoon) in half or, if he had a spear, spearing it anywhere along its body. If he breaks the dhoon, the crack of the bone on its break creates a big wind and then rain. If he spears the chacharr, the spear will shake and then he has to retrieve the spear and get away. The aftermath of the spearing is that the chacharr becomes very upset, raises its head and a wild thunderstorm, with wind and dust, ensues.

48    On the first occasion that Warren Beasley worked at Miranda Downs, Bumble B visited him and took him on horseback to Rocky Waterhole on Walker’s Creek. They went there with Royal Tommy and Gordon and Sandy Rolly. The old fellas told him it was Kurtjar country and that a waterhole with plenty of water and a chacharr was there. Bumble B told him its Kurtjar name was Milkarr and that it was a secret place that was not safe to visit without permission, because of the chacharr there. Bumble B said that one had to have a lawman perform a special ceremony and have mud from the waterhole rubbed on him or her.

49    Warren Beasley gave further video evidence on a visit to Milkarr. He said that the Kurtjar call the chacharr that lives at Kitty’s Hole Mirran.gan. He said that he needed no permission to go there because it was Kurtjar country but if others, such as a Tagalaka person, went there without permission they would get sick because the chacharr would smell them. He said that the spirits, including Royal Tommy’s, were there too.

50    Bumble B also took Warren Beasley to other waterholes including one south of Milkarr called Warrkil Warrka and another to the south-west of Milkarr called Wanggarich (on Jerry Creek near the boundary between Miranda Downs and Ashbourne Station) at both of which the chacharr lived.

51    He said that his father and Bumble B told him that they had been to corroborees at a large corroboree or bora ground at a place near Kitty’s Hole that was about a kilometre south of Walker’s Creek. Warren Beasley said that there was also a Kurtjar burial ground near this bora ground.

52    The Kurtjar call the spirits of their ancestors mighath, also called rrorkird, and must pay them respect else the mighath “will go against you”, as Warren Beasley said. Under Kurtjar traditional customs, when a person successfully hunts or fishes, he must leave a portion of the spoils for the spirits of the ancestors at the place where he found the food. The mighath, if upset, can cause a person to lose their way, prevent him or her catching any fish or animals or follow the person home and choke him or her. The Kurtjar believe that they need to be quiet in the bush to pay respect to the mighath. They have to sing out to the mighath when they want to fish at a waterhole telling them that they have come for fish and turtle and have nothing. Warren Beasley explained an important Kurtjar custom, namely that “you can’t take too much and you have to cook and leave some for the mighath. If you don’t, next time you come you will get nothing”.

53    When giving evidence on country at Halfway Waterhole at Glencoe, just to the west of the western boundary of Miranda Downs, Warren Beasley said that that was Kurtjar country. He said that a chacharr was in the waterhole there and, because of its presence, it would never go dry. He said that the waterhole contained plenty of fish and turtle to eat. He pointed to a bank on the other side of the waterhole from where he was giving evidence and said that was where Kurtjar ancestors were buried. He said that Bumble B and Royal Tommy had told him that Halfway Waterhole was a meeting place where Tagalaka people would come for meetings at the invitation of the leader or “king” of the Kurtjar people, such as Bumble B. He said that Bumble B sent a messenger with a stick east to find the leader of the Tagalaka people to invite them to a corroboree at Halfway Waterhole. The Tagalaka made their way there by following Walker’s Creek west from their country to Halfway Waterhole, where the two peoples had a big meeting at which several activities occurred. Warren Beasley was present, in his youth (when he was about 14, 15 or 16 years of age and before he began working there) when one such meeting occurred. The Kurtjar elders would warm the visitors up and welcome them. The elders of both peoples would talk to each other. They would then spear fish and turtle in the waterhole for all those present to eat after cooking them over a big fire. Warren Beasley said that after the “big feed” or feast the two tribes would “shake a leg” together, play music, sing, dance and have a corroboree together, where each tribe would swap (or, I infer, trade) weapons, such as spears and boomerangs, for grinding stones or shields. Warren Beasley said that the laakinchargh would break the chacharr’s tail at Halfway Waterhole during the corroboree with the Tagalaka people “to show them what a Kurtjar can do, and they show us something now what they can do”.

54    Because of the significant influence of the tropical wet and dry seasons on the land and waters in the Gulf of Carpentaria, the ability of indigenous peoples to manage the spiritual dangers of places involving water can be seen as fundamental. Much of the on country evidence reinforced the importance to Kurtjar witnesses of the ability to know of and manage the presence of a chacharr, if present, at any waterhole and other spiritual beings or influences at particular places.

55    Wilson’s Hut was a main stock camp located in Miranda Downs on the Gilbert River, to the south of Rice Lagoon. Warren Beasley said that it was also in Kurtjar country. To the north-west of Wilson’s Hut is Fred’s Hut, which is on the Gilbert River, and also on Miranda Downs, close to its north most boundary with Vanrook station. Warren Beasley said that Fred’s Hut was also in Kurtjar country. South-west of that, near the western boundary of Miranda Downs with Lotus Vale station, is Bayswater waterhole, another permanent waterhole, which Mr Beasley said in video evidence Royal Tommy, Bumble B and other old fellas, who worked on Glencoe and Miranda Downs, had told him was also Kurtjar country.

56    He said that there was a water fairy or water gin at Bayswater waterhole, as well as a chacharr. He said that the water gin lived in rocky waterholes and was like a mermaid, namely, she had long hair, a woman’s head and torso and a lower body in the form of a fish’s tail. The old fellas told him that a water fairy had powers like a laakinchargh. He said his old people had told him that people had to be careful of the water gin. If a man jumped in the water to catch her, she would create a whirlpool, pull him under, he would never resurface and his body would never be found. However, if the man caught her on the bank of the waterhole, he had to cut and burn her hair, warm her up and smoke her. If the man did that, her tail would fall off and she would become an ordinary woman who would be his wife for life, have children with him and give him the special healing powers of a laakinchargh. Moreover, if the man did not destroy her hair and she ever retrieved it, she would return to the waterhole and become a water gin again.

57    The old fellas told Warren Beasley that Bayswater waterhole would never dry out because of the presence of the water fairy. He said that if a stranger went there without a Kurtjar person to warm him or her up and speak to the water fairy, the stranger would get very sick. If the stranger went near the water, either the chacharr or water fairy would use its tail to swipe him or her into the water as powerfully as a crocodile. The spiritual being would then create a whirlpool, take the stranger underwater and his or her body would never be found.

58    Warren Beasley gave evidence at a site called warrgi’s (or black dingo) dreaming adjacent to a road on Delta Downs station, north-east of the homestead. He said that Bumble B and Beasley Bumble (his grandfather and father) and another elder, “old Midlan”, had told him of this place and its significance. He said that dingos had two names in Kurtjar, warrgi and ruaak, the former being black and the latter white or red. He said that he was told that, at this dreaming site, a warrgi mated with a ruaak after they had travelled there from Shell Ridge (which was well to the south on Delta Downs). After the mating, the ruaak turned black, returned to Shell Ridge and had a litter of red and white pups. The warrgi went north to Kowanyama country. Since then, the location of the warrgi dreaming was the place where dingos mated in the season. Because he was responsible for the site, Warren Beasley created a song and dance to memorialise the events that occurred there and caused a fence to be erected around the site to protect it as the home for the dingos. He said that it was like a bora or poisoned ground, in the sense that if one hurt a dingo there “you’re crippled for life”. But this is not a bora ground, that’s a difference place. But this is the place belong to that warrgi, the dog”. He said that dingos could not be killed there.

59    Warren Beasley said that Kurtjar have magic men, being a laakinchargh, as I have noted, and also a wherrte (fireman). He was also a wherrte, which means “I am the boss of fire”. Four Kurtjar men can be in a fire ceremony. The knowledge of what a fireman does is secret and can only be passed on to an appropriate elder. Firemen can also use a smoking ceremony to cleanse the spirit of a dead person from a house so that someone can live there.

Stanbroke’s challenges to Warren Beasley’s evidence

60    At one stage on the morning of the fourth day of his oral evidence, Warren Beasley said that his grandfather, Rolly Gilbert, had not talked to him about the boundaries of Kurtjar country. He said that the only people who had were Royal Tommy, Bumble B and his father and that they had told him that the boundary went to “Walker’s Creek that runs, leave the Gilbert, that’s our boundary”.

61    Stanbroke submitted that this evidence supported its contention that the boundary of Kurtjar country was considerably north of the claim area boundary of Rocky Creek. However, I understood Mr Beasley’s answer to refer to the eastern extent of Kurtjar country because, first, the question was about where the boundary went to, and, secondly, the answer referred to the junction of the Gilbert River and Walker’s Creek, which is near Wilson’s Hut and the junction of Gilbert and Einasleigh Rivers. I also observed that Mr Beasley, who was elderly, appeared to be tired when he gave that answer.

62    Stanbroke also placed considerable reliance on what Dr Martin had recorded in his first report, namely, that very early during his fieldwork on 20 July 2015, Warren Beasley had told him “how Kurtjar people had come to ‘keep an eye on’ Miranda Downs station. Dr Martin recorded Mr Beasley saying:

Tribe here [at Miranda], they’re all gone…. I just forget them…. Lance [Rapson] mob know ‘em … from Croydon. Tagalaka people, like Lance [Rapson] now, his father [Lance Owens] from up around there…. They all gone from over here. They call ‘em Tagalaka… But they don’t worry about this country see…. Some went away and I don’t know the rest they might have buried them here. There’s a lot of place here that I don’t know around here. There was half of them mob sort of married into the family. Casey mob, and the Beasley and the Bynoe, see they all mated up with their mob in the family. They married their way into Kurtjar then they sort of come to their country, to Normanton, we all sort of went together…. Where they went out … we keep an eye on it, Kurtjar keep it, in my line with the Kurtjar, even though they gone out, we keep it going, don’t want to let it go to nothing. Like Kurtjar, me, if I let it go to the pack [i.e. fail to look after it], then no-one’s gotta think about it. They’ll say, ‘oh well, there’s a place there where them old people was’, but they won’t worry about it, that’s why I like to keep go on with it, keep an eye on it and carry that name for it…. I reckon, see like a place where they all gone I reckon like you say to me, if I keep it going save letting it go to nothing, you understand? When they talk, they Tagalaka mob, I can understand a fair bit of it, I understand what they mean and what they’re talking about. If I talk language, they understand what I’m talking about.

(emphasis added)

63    Dr Martin characterised what Warren Beasley told him on that occasion as “an ambiguous example of a historical succession event”. In his report, he opined that Mr Beasley was referring to Lance Rapson’s father, Lance Owens, who was a member of the Tagalaka Aboriginal Corporation Registered Native Title Body Corporate (RNTBC). Dr Martin said that it was not his view that Mr Beasley referred to the area on Miranda Downs as having been originally Tagalaka and wrote:

Rather, in my view, Warren Beasley is here illustrating what is described in the anthropological literature as ‘strategic amnesia’ based on ‘the brief reach of history and limit of recall’ (Sansom 2001, 2006). As I discuss in my August 2017 Report at [233] and [234], such examples of ‘strategic amnesia’ are to be expected in the context of succession, as contemporary research participants come to see areas into which their forebears succeeded as simply always belonging to their group, as previous groups’ histories are forgotten.

(emphasis added)

64    Dr Brunton said that the term “strategic amnesia” was not generally accepted in anthropology, but said that it was considered that there is, in Aboriginal peoples, “amnesia about earlier generations in genealogies” and that the correct term was “cultural amnesia”. However, importantly, he did not disagree with Dr Martin’s reasoning, saying that “it certainly occurs”. Dr Palmer also expressed doubts about the expressions “strategic amnesia”, “cultural amnesia” and “amnesia” in this context, but said that it was generally accepted by a number of anthropologists that:

… when the process of succession is complete, then there is no knowledge within the group who have taken over that it was anything other than their own country. How long that takes is another matter and is probably context driven.

65    The experts agreed that Aboriginal peoples’ oral histories, or oral traditions, have a shallowness over three or more generations. I will return to this topic in discussing the succession issue below. However, I consider that Warren Beasley’s evidence that the boundary of Kurtjar country went to where Walker’s Creek left the Gilbert River is an illustration of the shallowness or frailty of orality in recording histories and traditions. I formed the view that his other evidence, to which I have referred, more accurately reflected his belief about the historical information that his old fellas or elders had passed onto him as to the extent of Kurtjar country going further east to the junction of the Einasleigh and Gilbert Rivers. I accept the evidence of Dr Martin and Dr Palmer that what and how Warren Beasley told Dr Martin on the 2015 field trip about country “we keep an eye on” is some evidence of the loss of traditional memory about earlier land ownership in the Miranda Downs area.

2.1.3    Joey Rainbow

66    Joey Rainbow, who is a member of the applicant, was born in 1960 on Myra Vale station. His father, Sandy Rainbow, was Kurtjar, his mother, Sheila, was Kukatj and his grandfather, Rainbow Christie, had been born on Dorunda station. Joey Rainbow’s grandmother was Biddy Captain, who was the daughter of two Kurtjar, Captain and Rosie. In about the mid-1960s, the family and all the other Kurtjar living on Myra Vale and other stations were moved to the Normanton reserve.

67    Rainbow Christie and other old fellas told Joey Rainbow that the Norman River is the southern boundary of Kurtjar country and to its south was Kukatj country (being outside the claim area). Joey Rainbow also said that, when he went there in his youth with Rainbow Christie and his father, they told him as they headed eastwards along, and north of, the Carron River, Fish Hole, and Rocky and Willis Creeks, that Kurtjar country was on the north side of those water courses. His grandfather and father told him of places to which he could not go or which were sacred sites as they went there to hunt and fish with a spear (because, in those days “none of our people were allowed with a gun”).

68    After he left school in about 1974 or 1975, Joey Rainbow worked as a stockman. In about the early 1980s, Joey Rainbow was droving cattle from Stirling Station (which is on the western side of Miranda Downs and south of the Gilbert River) to Strathmore Station (which is on the eastern boundary of Miranda Downs) towards old Miranda Downs homestead, which is on Miranda Creek near the junction of the Einasleigh and Gilbert Rivers on the eastern boundary of the claim area. On that occasion, Joey Rainbow worked with Sandy Rolly, Gordon Rolly, Alec McDermott, Lester George, Percy Midlan and Lionel Bee, who were all Kurtjar men. Alec McDermott was an old fella who would ride next to Joey Rainbow from time to time as they worked the cattle east. Alec McDermott told Mr Rainbow to avoid some areas because they were burial sites for old Kurtjar, being stockmen and persons before there were stockmen (which I infer was before European settlement). On the cattle drive, old fellas told Mr Rainbow, when around the old Miranda Downs homestead, that it was Kurtjar country up to there but on the eastern side it was Tagalaka country. Alec McDermott, Sandy Rainbow and Gordon Rolly pointed out massacre sites that were important for Kurtjar in the vicinity of Kitty’s Yard or Hole and going north-westwards up from there towards the Staaten River. Just west of the most eastern point on the claim area boundary, north-east of the junction of the Einasleigh and Gilbert Rivers, there used to be a trading post for Cobb & Co.

69    Joey Rainbow said each of Alec McDermott, Sandy Rainbow and Gordon Rolly told him that, as one went eastwards, the country to the north of the Carron River and Rocky Creek (which run along parts of the southern boundary of the claim area) is Kurtjar, to the south is Tagalaka and north of Tagalaka country on Strathmore station (which is the east of the claim area) is Ewamian country.

70    In a video taken at Station Waterhole, Joey Rainbow said that a water gin lived in that site. He said that a water gin was a “very sacred thing”. He explained that she would flap her tail on the water at night to coax a single man, because a water gin was “always looking for a husband”. However, if she could lure him into the water, she would kill him instead. He said the man had to convince a water gin that he wanted her to be his wife and persuade her to get out of the water and, if he did so, he had to warm her with leaves, her tail would fall off and she would assume the body of a woman who would never leave the man. He also said that the successful male would “become a very clever man” like a laakinchargh. Mr Rainbow also said that some people cut the water gin’s hair, others did not, and that if the man did so he could not give her hair back to her. He also said that he knew of numerous waterholes where there was a water gin, including Evergreen (in the Staaten River National Park, Bayswater, Kitty’s Hole and Rocky’s Hole. He too emphasised that it was essential to get and keep the water gin away from the waterhole whence she came. Mr Rainbow said that Kurtjar people had a duty to look after and protect the sacred place so that they and others would not get really sick.

71    Prior to the experts agreeing during their concurrent evidence that Tommy Burns was a “top end” apical ancestor of the Kurtjar people (i.e. from the north of Kurtjar country), his status was in dispute. There was video evidence that recorded Warren Beasley, his nephew, Lance Rapson and Joey Rainbow, visiting the burial site of Tommy Burns on Dorunda Downs station, in the north of the claim area. Warren Beasley pointed out a mark placed by Tommy Burns’ family (including Warren Beasley’s uncle, Royal Tommy, who was the deceased’s son in law) on an old tree adjacent to a stockyard that indicated where the site was. He said that Tommy Burns’ spirit was at the site and moved around its immediate environs, including to some nearby dongas. As they left the site, Warren Beasley spoke a loworr, a ritual in Kurtjar language. He spoke to the spirit as if it were a son of his to comfort and inform it that it could now go to sleep.

72    The group involved in that video evidence walked to Station Waterhole close to Tommy Burns’ burial site. As they did so, a large goanna followed them. Mr Beasley, Mr Rapson, and Mr Rainbow said that this was unusual behaviour because normally a goanna would stay away from people. The three men explained that this creature was a rrorkird, or as Mr Beasley explained “he belongs to that old fella up there”, namely at the burial site. Mr Rainbow said that the goanna’s behaviour was attributable to the spirit of Tommy Burns coming to “welcome us back on country”. The three men said that it was not possible to hurt an animal that behaved like that goanna because such an animal was the totem of a deceased’s spirit. Warren Beasley said in the video made the next day at Kitty’s Hole (see [43] above) that he had dreamt overnight about the goanna that had followed them at Station Waterhole the day before and realised that it “was the spirit of my old boy”, Tommy Burns.

73    During his oral evidence, Joey Rainbow expanded on the significance for the Kurtjar of animal totems, also called dreamings. He said that under their laws and customs every person has such a totem and that “when they come up, they are all a part of us”. A baby is given a totem at birth, “when they take your navel cord”. As a consequence, a Kurtjar person cannot eat the creature that is his or her totem. For example, Mr Rainbow said that the barramundi was the totem of his grandfather, Rainbow Christie, and the albino saltwater crocodile was his totem. He said that, under Kurtjar law and custom, his totem connects him to not only Kurtjar country but also other people with the same crocodile totem.

74    Joey Rainbow said that his crocodile totem connected him to Kurtjar country and to the “whole crocodile family”. Rainbow Christie had given him that totem by taking his navel cord and smoking it with ironwood “so I would stay true to the law and so that smoke would form the shape of my totem”. Rainbow Christie told Joey Rainbow that he, his grandmother Biddy and other “old grannies” gave him his albino crocodile totem at Dorunda Lakes. He said that he cannot eat any species of crocodile because of the nature of it being his totem. When Joey Rainbow goes to the river he talks to the crocodiles and believes that they are not a threat to him nor he to them. He said that Dorunda Lakes was a special space for him because of his totem but he could not disclose the story of the saltwater albino crocodile because it was “secret stuff”:

I can just tell you that when I go there… I can talk to it, and know that he can understand me and I can understand him.  It’s that connection for me to that – and of that animal to me.  We have that special connection and that.  And it’s hard to explain. And plus there are things I cannot and will not say about it.

75    He explained that his grandfather’s barramundi dreaming related to both the saltwater and freshwater fish wherever it was on Kurtjar country. Thus, if a person who had the barramundi as his totem, like his grandfather, caught a barramundi, he or she could not eat it because “that fish is very sacred to him”, but any other Kurtjar person could cook and eat it. Joey Rainbow said, in response to a question about whether there was a comparable place on Kurtjar country where Rainbow Christie’s totem or barramundi dreaming was, like Dorunda Lake for his albino crocodile, that “there’s a lot of stuff I can’t say. All I can say is that is his dreaming”. Joey Rainbow added that for his grandfather “it’s not only his dreaming, that’s his totem… it’s only just related to that fish. He can’t eat him… But it’s just to the fish; can’t eat it and, no, there’s no particular dreaming area. It’s about that fish”.

76    Joey Rainbow was a director of Morr Morr Pastoral, the owner of Delta Downs station. He was a chairman of both the Kurtjar Land Trust Aboriginal Corporation and of the shareholder of Morr Morr Pastoral’s issued shares, Morr Morr Kurtjar Aboriginal Corporation (KAC). He said that KAC was established “to look after the Kurtjar community”. He explained that, while the use of Kurtjar country to run the business of Morr Morr Pastoral was not traditional, Kurtjar people had the right to do so on their country and that the conduct of such an enterprise was not contrary to their traditional laws and customs. He said:

It's an opportunity there for Kurtijar mob as an employment – like, with the sandalwood, the fishing, even, you know, pig shooting or something, you know? That sort of thing will create employment because not everyone can be employed at one place. You know, you can't have hundred people running round on the station, you know?

If there's a enterprise set up there, we'd have a lot more on country employed doing these things, you know, instead of being in town as a lot in the news say, “You fellas are looking for handouts”, you know, welfare-dependent. We can be getting back and creating our own employment for our own mob. And this is all starting to fall into place now, as we going along.

…

These resources, yes, of course we could use it.

(emphasis added)

77    He explained that the sandalwood tree is a source of bush medicine, but that Kurtjar traditional laws and customs allow Kurtjar people to “harvest the older trees, not the younger ones… So you’re not getting rid of all your resources”. He said that Morr Morr Pastoral distributed some of its profits to the Kurtjar community and to the Kurtjar Land Trust and that these funds could be used to buy businesses, create employment or take other steps to help the Kurtjar people become self-sufficient using the natural resources of their country. Similarly, he said that it would not contravene their traditional laws and customs if the Kurtjar people set up commercial fisheries to use the abundant fish in the rivers on their country in the same way as Morr Morr Pastoral ran Delta Downs station.

78    Joey Rainbow said that Kurtjar people can camp, hunt, fish and take things for food or medicine all over Kurtjar country, but cannot be too greedy and must ensure that they both have left some for the next person and “leave the big breeders so that there is always some for next time”. He said that he was taught by the old people that one never took more than enough for oneself and one’s family and one had to share it with the spirits. He said “you never rape your country for everything” and that this rule applied to all resources.

79    He said that his father (Sandy Rainbow) and grandfather (Rainbow Christie) told him that Kurtjar, including themselves, would trade with the Gkuthaarn and Kukatj at points along the Norman River. He said that they traded sugarbag (which was, as I understood the evidence, honey harvested in a wallaby’s bladder) from the wild native bee. Kurtjar traded the sugarbag for rocks, boomerangs and spears, or gidgi (wattle) gum. He said his father, grandfather, Uncle Kenny Jimmy and Fred Midlan told him that, in the past, there were trading points all along the Gulf coastline where they met people using small canoes from the Northern Territory, Cape York and Mornington Island. He said that Fred Midlan told him the old people had taken him to see such trading. Joey Rainbow said that when he was working in that area, Kowanyama persons told him that the Kurtjar had trading points with the Kowanyama north of the Staaten River at a big waterhole called Gum Hole where they also had corroborees and marriages.

80    He also said that his father and Sandy Rolly told him that Kurtjar traded with the Tagalaka and Ewamian at places around Red River, the old Miranda Homestead, Bobby Town and Maytown. He said that the Tagalaka had good stone for axes and spears that was lacking on Kurtjar country. He said that his father and grandfather also told him that on Pandanus Creek in the Staaten River National Park, Kurtjar traded with the mob from Chillagoe side (a town to the east).

2.1.4    Other Kurtjar witnesses

81    Merna Beasley was born in 1951 to a Kurtjar mother, Ethel Hayes (née Gee), the daughter of Alice Gee, and a Tagalaka father. She married Rolly Beasley, Warren Beasley’s brother, in 1972. Her husband worked for the then owner of Magowra (which is not on Kurtjar country) and Miranda Downs stations. Her husband worked as a grader driver and they lived on Miranda Downs, usually near the main homestead but sometimes they stayed at an outstation at Rice Lagoon, which her husband said was on Kurtjar country. She said that her husband used to tell her “about where our old Kurtjar people were on Miranda Downs”. He did not talk about Magowra station because it “wasn’t our country” and he was always much happier to be on Miranda Downs because “[h]e called it his country”. Her mother (a Kurtjar) and mother in law, Daisy Tommy, told her when she was about 18 that the boundaries of Kurtjar country went from Miranda Downs up to Delta Downs.

82    Their children lived at Normanton but, when they came to visit, Merna and Rolly Beasley took them fishing and hunting to Cobb & Co (near the junction of the Einasleigh and Gilbert Rivers) where there was a little waterhole, Boat Crossing (near Wilson’s Hut), Policeman Waterhole (to the north-west of Wild Rice Lagoon, which is slightly to the west of the eastern boundary of the claim area, north of Wilson’s Hut), Kitty’s Hole (on Walker’s Creek) and old Miranda Downs homestead. When they arrived at those places, Rolly Beasley always got out of the car first and went a little way talking language and calling out to the old people to let them know of the family’s presence. Her husband told her that the country to the west of the junction of the two rivers on Miranda Downs was Kurtjar and that to the east, on Strathmore station, was Tagalaka country. She said that this junction was near to where Tagalaka and Kurtjar met.

83    Merna Beasley said that when they caught fish and cooked them at the waterholes, before they left, they had to “leave some there for the old people”. She also said that if they had greasy hands they had to rub them with dirt or sand before putting them in the water “for the rainbow serpent” and that “[y]ou always know it’s there if you come from that country”.

84    Merna Beasley said that when she followed her husband’s grader in their car with fuel for the grader in forested areas on Miranda Downs, he would tell her to keep up with him and not stop or stay too long in those places because of the danger from red leg devils. He told her they could hurt or kill her.

85    The late Bernie Rapson swore an affidavit on 11 July 2017 that was read at the trial. He was born at the homestead on Miranda Downs station in 1948 and lived in a camp near there until he was about ten. He returned to Miranda Downs in 1962 to work as a stockman on horseback for about eight years. Royal Tommy, Caesar Rolly, Roy, Warren, Phillip and Rolly Beasley, and Nardoo, Don, Noble, Bob and Neville Burns were there and Bernie Rapson spent a lot of time in the bush with them. They told him that Miranda Downs was Kurtjar country. His father, Barney Rapson, whose brother was Royal Tommy, was also working on Miranda Downs but Bernie Rapson did not see much of his father when he worked there.

86    Bernie Rapson worked a lot at Glencoe but he also had to look after the stock camps at Burke’s Hut (which is to the north of Miranda Downs homestead) and Wilson’s Hut. He said that Royal Tommy and the Beasley and Burns brothers knew a lot about the country around Burke’s Hut and showed him where to catch bream, catfish and turtle in the nearby Maxwell Creek. He said that he spent a fair bit of time with Royal Tommy on Miranda Downs, who showed him “story places”, including bora grounds near Yellow Dinner Camp Lagoon in sand ridge country (about seven to eight kilometres east of Kitty’s Yard), which Royal Tommy warned him not to go to, and another at Wire Yard (which is west of Glencoe) which he was also told was “poison ground”. Royal Tommy told Bernie Rapson that another story place was at Goosey Dam (which is east of Glencoe on Bayswater Creek) where there used to be big corroborees with Kowanyama, Coen, Tagalaka and Kurtjar lawmen.

87    Royal Tommy also told Bernie Rapson that he had to be careful around waterholes and that he could not go to some places without a lawman to warm him up. The old men also told him that when he went on country he had to sing out to the old people’s spirits to let them know he was coming.

88    Lance Rapson was born in 1980. His father was Lance Owens, a Tagalaka, and his mother, Tessie Rapson, is Kurtjar and the daughter of Barney and Doris Rapson. Warren Beasley, Barry Casey and Bernie Rapson are uncles of his. He has spent a lot of time with Warren Beasley, who is passing knowledge of Kurtjar laws, customs and places to him so that he will be able to look after Kurtjar country in the future.

89    He said that Kurtjar neighbours are the Kowanyama to the north of the Staaten River, the “Red River mob” to the east on Strathmore Station, the Ewamian (also to the east), the Tagalaka in the south-east and the Gkuthaarn and Kukatj to the south-west. Lance Rapson said that his mother, her family and his grandmother, Doris Rapson’s first cousins, Barbara and Janet Casey, told him that Kurtjar country went from the Norman to the Staaten Rivers and that Bernie Rapson had told him Miranda Downs was on Kurtjar country. His late uncles, Mervyn and Freddie Edwards, and Warren Beasley had told Lance Rapson that the boundary between Kurtjar and Tagalaka country was “[f]rom the Walker’s past Rocky”.

90    Lance Rapson said that, if he wanted to hunt or fish on Kurtjar country at a place for the first time, he had to see a senior elder to ascertain whether there were sites or concerns at his proposed destination, such as a bora ground or burial places.

91    Barbara Casey told Lance Rapson, when he was in his late 20s, that in the old days, her mother’s generation of Kurtjar, Kowanyama, Tagalaka and the Red River mob traded items like boomerangs and spears. He said that there were grinding stones on Delta Downs station that were from a type of rock that did not belong to Kurtjar country. He said that it was important for Kurtjar people to look after and control how much is taken from their country. He explained that, when one went fishing or hunting, one only took what was needed and that it was important to leave some for the spirits. Similarly, he said that if one wanted to take sandalwood, one could take a proportion, but “not too much”, because it is a medicine.

92    Harold Banjo was born in 1959. He followed his father (also named Harold) who was a Kurtjar by adoption and grew up on Macaroni station. Harold Banjo’s father told him that Kurtjar country goes from the Staaten River down to the Norman River and includes Miranda Downs, Vanrook, Lotus Vale/Stirling, Delta Downs, Dorunda and a small portion of Strathmore stations.

93    Harold Banjo worked on Miranda Downs for about four years from when he was about 19 years old. He mustered cattle with Charlie and Noel Bumble, Stanley Bynoe, Hector and Frank Casey, Norman, Warren and Neal Beasley, Alec George, as well as Alec and Dudley Sailor.

94    Kitty’s Hole was a special place for him. That was because, before he was born, his father, mother and Ernest Teddy, his maternal Kurtjar grandfather, who also was working on Miranda Downs, were fishing there, whistling for turtle and then spearing them when their heads appeared above the surface. His father saw a barramundi swim past and speared it behind the gill. When Harold Banjo’s father pulled the fish onto the bank, his grandfather told his parents that the barramundi “is a baby”. He said that this was because no-one ever caught fish at Kitty’s Hold and they only caught turtles. Soon after, his mother fell pregnant and the barramundi became Harold Banjo’s totem.

95    Jenice Bee was born in 1968. Her parents were Rolly and Merna Beasley, both of whom were Kurtjar. She grew up in Normanton. In her teenage years, when Merna Beasley joined her husband to work on Miranda Downs, Ms Bee and her siblings went to that station every Friday to be with their parents. They went fishing and hunting as a family in the late 1980s and early 1990s at various places on Miranda Downs, but principally in the east of the claim area at Kitty’s Hole, Cobb & Co, H Lagoon, Wilson’s Hut and Boat Crossing. Her parents told her that Miranda Downs was Kurtjar country. They hunted goanna and foraged for bush tucker such as water lily and bush fruit. Ms Bee said that, although her father was born at Myra Vale, “Miranda was his country. He had been taught by the old people for that country. It was where his heart was”. She said that her father was a quiet person when he was not on Miranda Downs, but when there “he would be talking all the time. He said it was because he was home”. She said that he told them where three young Kurtjar people were buried on the way to Kitty’s Hole.

96    Ms Bee said that whenever he arrived at places with his wife, children and grandchildren to fish and hunt, Rolly Beasley always got out of the car before anyone else and walked off “talking language”. He then returned to the car and reminded the family that they had to “look after, tidy your land up, leave some fish there beside the fire there for them old people”. He told her that he was speaking language to the old people. Ms Bee still speaks to the old people when she visits places on country, but in English as she does not speak Kurtjar. She does this to show respect for the spirits and because, if she did not, the next time she visited she would not be able to get anything. She also always leaves some food behind for the old people when she leaves. She teaches her children those customs.

97    Rolly Beasley told Ms Bee that Fred’s Waterhole was a special place for him. She said that after visiting her parents at Miranda Downs for years, one day her father told her and her husband “I found it” and took them to Fred’s Waterhole. She said that when they arrived, he walked off and that she had never seen him as emotional as then. He told Ms Bee and her husband that when he was young he met up all the time there with Halo and Comet Ward and Stewart Nimble. Rolly Beasley said to his daughter that those three men and Royal Tommy had told him that Miranda Downs was Kurtjar country and that, when he was young, “all of these old people taught me [Rolly Beasley] what I know today” when they met up at Fred’s Waterhole.

98    Jenice Bee had been told that red legged devils were on Miranda Downs and Delta Downs. She said that they were in forested areas on Miranda Downs and that “[s]oon as you go in that country, you can just feel it… It’s no good place”. She had been told not to go in there and believed that she had to respect that prohibition. She learnt of the chacharr when she was about five, when she went fishing with her father’s parents. They told her that, before she put her hands into the waterhole or Willis Creek, she had to wash them with mud or sand.

99    Mildred Burns was born in 1956. Her mother, Betty Harold (née Bynoe), was the daughter of Bynoe B and Sarah Bynoe, all of whom were Kurtjar. Ms Burns married Claude Burns who is also Kurtjar. His parents were Sandy Rainbow and Vera Midlan, the daughter of Jimmy and Judy Midlan. Ms Burns grew up at the top camp in the Normanton reserve because, like her father, her paternal grandparents, with whom she lived, were Gkuthaarn.

100    In her childhood, she spent a lot of time at the bottom camp around Jubilee and Lily Slattery’s home. She said that corroborees were held around that home frequently and there was always singing and playing the drum. She said that Warren Beasley and Fred Midlan both sang in Kurtjar at the corroborees. She said that the songs always had a meaning and a dance often accompanied the songs which could be about animals, like wallabies, or different birds. The old people explained what the songs and dances were about and Jubilee Slattery also joined in the corroborees.

101    In 1978, Ms Burns and her husband went to Miranda Downs where he worked as a ringer and she as a housemaid. They lived at an outstation at Glencoe at the same time as Royal Tommy, Fred Midlan and Roy Beasley (Warren Beasley’s brother) and their wives were there. She said that the men were very knowledgeable about the country on Miranda Downs and spoke about it among themselves. She said that the men spoke to the spirits of the old people and knew all the places to go. She, with the other women, accompanied the men to get bush tucker at water bodies down the Gilbert River such as Two Mile and Four Mile Waterhole, Bayswater Creek, Picnic Waterhole (near Glencoe), Goosey Dam, Toby’s Waterhole (which is near Mail Change Waterhole), Jam Pot Waterhole (which is about half way between the western and eastern boundaries of Miranda Downs) and, further to the east of Glencoe, Kitty’s Hole. When they went there they always sang out to the spirits and talked in language saying who they were, who they were with, that they were family and what they wanted to eat. She said that if they caught something, their custom was to cook it and leave some for the old people to show respect. If they did not leave something, “you won’t have luck the next time”.

102    Ms Burns said that Warren Beasley told her about when old people were fishing on the Gilbert River and were chased by a red legged devil. Ms Burns also recounted the Kurtjar customs concerning the need to seek permission to go on Kurtjar country, to ask about the locale (so as to find out about any dangerous places), to show respect and to have a totem.

103    Harry Daphne, who was born in 1965, lived with Jubilee and Lily Slattery at the bottom camp on the Normanton Reserve. He recalled lots of corroborees there, sometimes with “waltzing”. He said that Jubilee and Lily Slattery took him out to get food at various places including Walker’s Creek and Glencoe. They taught him to be careful and to have respect when on Kurtjar country and that there were places that were poison ground.

104    The late Fred Edwards affirmed an affidavit on 4 September 2017. He was born in 1939 and both his parents were Kurtjar. His late elder brother, Mervyn Edwards, born in 1937, affirmed an affidavit on 3 March 2017. Their father, Albert Edwards, was a stockman who worked all over Kurtjar country, including on Miranda Downs. Mervyn Edwards was familiar with the danger from the chacharr and going into waterholes with grease on his skin.

105    Fred Edwards said that his father was “under the Act”; i.e. under the Aboriginals Preservation and Protection Act 1939 (Qld) and under the control of a “protector” appointed under that Act. No-one was entitled to employ an Aboriginal person without permission of a protector by force of s 14. That Act subjugated Aboriginal and Torres Strait Islanders under Queensland law to the effective and pervasive control of the protector and other State officials. The Act denied them the respect, dignity and autonomy that any human being ought to have been able to enjoy as of right. The legacy of that and similar legislation in other States and Territories has continued to have profound, shameful and adverse social consequences for the First Nations people of this country. That Act remained in force until its repeal in 1966, despite Australia having been one of the nations that voted to approve the Universal Declaration of Human Rights in the United Nations on 10 December 1948. As Fred Edwards recounted: “The Protector would tell [Dad] where he was going to work. The Protector would tell us all we had to go with Dad. We were not allowed to go into Normanton. Same with many of the other Kurtjar people living out on the stations”. He said: “I was taken away by the Protector once”.

106    He said that the stations “gave us rations, but they didn’t pay us anything. Kurtjar people also lived on bush food from their country. We lived off the land”. The people living on stations who were too old to work would show others where the waterholes and best fishing places were. Fred Edwards said that, if the “old-timers” sang out in language to the spirits of the old people asking for fish, “we would catch a lot of them”. The “old-timers” said that spirits were responsible. They left some fish behind for the spirits. He remembered corroborees on Lotus Vale, Myra Vale and Delta Downs stations.

107    Fred Edwards worked on Miranda Downs as an adult. Because he was “under the Act”, he had to sign up for a year. Royal Tommy and Barney Rapson senior were then working with him there. Royal Tommy told Fred Edwards that he was born on Myra Vale but grew up on Miranda Downs and said that he belonged to it (Miranda Downs) as his country.

108    Fred Edwards said that the old people told him where Kurtjar country was. He said that the Norman River, the Carron River and Rocky Creek form the boundary. He said that there is a Kurtjar bora ground just after the Corduroy River (scil: Corduroy Crossing in the south-west of the claim area, well away from Miranda Downs), being a place where the old men trained the young men and taught them “the old ways [t]o make them a man”. He said that Kowanyama country stopped north of the Staaten River and to its south is Kurtjar. He said that Miranda Downs is Kurtjar country and that Wilson’s Hut is in Kurtjar country. He said that on Miranda Creek (which flows north-west from Strathmore station close to old Miranda Downs homestead and into Walker’s Creek, near Kitty’s Hole) there was a stock camp called Eight Mile Hole, which was east of H Lagoon (south of Walker’s Creek), all of which were Kurtjar places. He said that Kurtjar country stops at old Miranda Downs homestead, and to its east is Tagalaka country.

109    Fred Edwards recounted that once, when he was young, he and others cut down a tree to get sugarbag and honey went all over them. They jumped in the water without first using mud to clean the honey off. He said that suddenly, a big wind began blowing and he and his companions began ducking and diving. Fred Edwards said “[t]hem old fellas told us we had upset the rainbow” (i.e. the chacharr).

110    Fred Edwards said that all Kurtjar can live on Kurtjar country, use and take what resources are there, such as fish, turtles, goanna and sugarbag, and have to look after their country. They have to sing out to the spirits if they want to fish or hunt and ask them so that they will get plenty. He also said that one had to leave a portion for the old people. He said that the elders should have a say about what happens on Kurtjar country and that “[i]f a mining company wants to come onto places like Delta, Vanrook or Miranda Downs, the elders need to have a say. It’s up to us to say whether we agree or not”.

111    He said that, if he was going to a place on Kurtjar country that he did not know, he would ask an elder about that area “to make sure I don’t go to the wrong places. It’s about respect, and if you don’t show respect, you could get sick or lost”.

112    The late Barbara Casey, in a statement she made on 21 November 2012, explained that a Kurtjar custom is that grandparents of the same sex as a grandchild, not the parent, would pass on stories in Kurtjar about “women’s ways” or men’s. She said that “there is shame in my mother and auntie telling me”. She was taught how to hunt and said that the custom was that women hunted together without men, who would hunt separately. The women could not hunt for goanna, wallaby or pig. In the early days, before they had guns, she saw men hunt goanna with spears and woomera. She said that her mother, Sarah Bynoe, taught her about the barramundi dreaming. When they caught barramundi her mother said that there could be spirits around the place. She said that there were spirits at waterholes and that “if we belonged to that country the spirits would look after us and we would catch lots of fish”. They would eat some but leave a portion on a leaf or piece of bark for the spirits. She was taught that if they did not do that the next time they returned there they might not get anything.

113    Janet Casey was a sister of Barbara Casey and made an affidavit on 2 August 2017. She was fostered with Jubilee and Lily Slattery in Normanton when she was eight years old because her parents were working at Glencoe while Barbara went with them. Janet Casey said that Lily Slattery taught her how to live off the land and Jubilee taught her to leave some food for the old people when they caught fish so that they would have luck the next time. She said that Miranda Downs is Kurtjar country. She said that Lily Slattery taught her about the chacharr and the need to wash grease off one’s hands with mud before entering the water, else the rainbow serpent will smell the grease “and bite you on the tummy” and make one sick. She said that it happened once to her and she got a stomach pain.

114    She said that the spirits of the old people who had died (rroorkird) were on Kurtjar country and that whenever she goes to Delta Downs she can feel them and gets goose-bumps. She said that it was important to respect the elders.

115    Janet Casey also said that strangers had to show respect and ask Kurtjar people for permission to come onto their country and so that they could tell the spirits about the strangers and protect special places. She said that because she was Kurtjar she could go onto Kurtjar country, fish, take and use foods and plants.

116    Agnes Gilbert was born in 1948. Her father was Rainbow Christie and her mother was Biddy Rainbow. She said that Miranda Downs was Kurtjar country. However, when she was seven, she and her six year old brother, Steven, were taken away from their parents at Vanrook station to go to school in Kowanyama. Although she saw her parents at Christmas holidays, when they could leave their stations, she did not return from Kowanyama to live on Kurtjar country. She said that the minya (or chacharr) was in the spring behind the yards at Vanrook station and that it was necessary to be careful of it, be clean and not have greasy hands, else it would smell the person and “[p]ut its teeth inside you and make you sick”. She got sick from that water once and needed her uncle, Boyang Charlie, who was a laakinchargh, “to fix me up”.

117    Agnes’ son, Leslie Gilbert, followed his father’s side and is Koko Bera. He said that his grandfather, Rainbow Christie, and grandmother, Biddy Rainbow, talked to him about Kurtjar country. Rainbow Christie told him that at Dorunda Lagoon, where he was born, a water fairy comes out of the water on a full moon and sits on a rock with two big dogs.

2.2    Tagalaka evidence

118    Garry Owens is a senior Tagalaka person and a director of Tagalaka Aboriginal Corporation RNTBC. He was born in 1958. He said that Tagalaka people have similar laws and traditions to Kurtjar people, such as warming up strangers when they come onto country. They also know of red legged devils. He said that the country on the south side of Rocky Creek and the Carron River is Tagalaka and on the north side was Kurtjar. He said that at the junction of the Einasleigh and Gilbert Rivers, the Miranda Downs side was Kurtjar country and that it was Tagalaka on the other side. He gave evidence that his father, Mannie Owens and “my old fellas who already gone” had taught him that.

119    Garry Owens said that when the Tagalaka native title claim was first made it had overlapped substantially into Miranda Downs because of a misunderstanding. He said that the Tagalaka claim group subsequently had recognised that they “just might have overstepped a little bit” and drew the boundary of their claim back to, I infer, where he said in his evidence the boundary between Tagalaka and Kurtjar country is.

120    Mr Owens explained that under both Tagalaka and Kurtjar traditions and customs a stranger cannot go onto another people’s country without asking permission from a person whose country it is and who can speak for it. He said that he could get into trouble if he went onto Kurtjar country without asking because he was a stranger to it. Mr Owens said “I get sick if I go onto someone else’s land without… their say so, or getting an invite… We were taught by our old people that you just can’t wander onto someone else’s land… and go fishing”. He said that the Tagalaka people’s belief is that if he or his family did so “the spirits of Kurtjar people makes us sick”. And, similarly, if a Kurtjar person or another stranger went onto Tagalaka country without asking permission, “our belief is the same”.

121    Old Barney Rapson was Kurtjar and the father of Mr Owens’ sister-in-law. Barney Rapson had introduced Mr Owens to the country at Glencoe on Miranda Downs when he was about 20. Royal Tommy was there on his first visit. Mr Owens’ grandfather, Edmund Miles, was Tagalaka and worked on Miranda Downs for many years as head stockman. Barney Rapson warmed up Mr Owens on his first visit to Miranda Downs by rubbing sweat from under his arms onto his palms and then all over Mr Owens, before calling out to the old people (spirits) to let them know Mr Owens was there and a stranger to country. Mr Owens understood that this was the Kurtjar custom. Mr Owens subsequently visited his grandfather there a few times. On an occasion in his early 20s, after the first time he went onto Miranda Downs, they went to pick someone up. His grandfather told Mr Owens to stay in the car because they were on other people’s country and “I hadn’t been welcomed there yet”.

122    Barney Rapson took Mr Owens fishing at waterholes on Miranda Downs, including Kitty’s Hole, and “introduced me to the land, to all the spirits” by calling out to them. Mr Owens went onto Miranda Downs about four or five times in the 1980s after his grandfather had retired and had left the station. Mr Owens lived with Barney Rapson for four or five years when he was an old man in Normanton.

123    Importantly, Mr Owens recalled his father and uncles, Reggie and Jack Douglas, had talked about the Walangama. He said:

… [B]ut they’ve been gone a long time. They were the go-between for the Kurtjar and Tagalaka peoples. They could understand both ways. No-one says they’re Walangama these days, just Kurtjar and Tagalaka.

124    Mr Owens first heard of the Walangama when he was at school. He recollected being told by the old people only on the one occasion that there was “another mob belong to us, mixture of us down there… somewhere”, being, he understood, a mixture of Kurtjar and Tagalaka. But, he did not have a clear recollection and thought that they could be traders or ambassadors. He said that the Walangama could understand and shared many or similar customs of both the Kurtjar and Tagalaka. He had heard his old people say that the Walangama were a mix of Kurtjar and Tagalaka. He did not know any Walangama families or where their country was.

125    Old Barney Rapson told Mr Owens about corroborees occurring on Glencoe (which was, at an earlier time, a separate pastoral lease from Miranda Downs) and Miranda Downs. Mr Owens said that his mother had told him that his father had “copped a flogging for going dancing… with people from down their side and Mitchell River people, and they all worked together. They would have done the men’s business and… dancing” on Strathmore station.

2.3    Other instances of Kurtjar law and customs

126    Warren Beasley said that if a person had one parent who was Kurtjar, and the other who was not, he or she could choose to “follow” or identify as Kurtjar, but having done so the person could not also “follow” the non-Kurtjar tribe and vice versa. Under traditional Kurtjar law and custom, a baby, usually male, had to be smoked with ironwood leaves, although Warren Beasley observed that this ceremony is not usual now. He explained that, traditionally, the customs for marriage were that:

    first cousins could not marry;

    the proposed spouses had to be the right “skins” for each other;

    the intending groom would ask his grandparents to arrange matters for him with the intended bride’s family;

    the groom had to make a gift of bush tucker to the bride’s family;

    if the intended bride’s family agreed, they tied the proposed couple by the arms with bushrope or vine;

    when the bride was about 18 or 19 the marriage would occur and there would be a corroboree with lots of bush tucker;

    the new wife would move to be with the husband’s family.

127    Both Warren Beasley and Fred Edwards said that, at the present time, Kurtjar customs have changed, so that:

    while marriage between first cousins is still prohibited, people no longer observe the need to be the correct “skin”;

    people who fall in love marry in a church or civil ceremony;

    the intending groom asks the intended bride’s family for permission and gives them bush tucker.

128    Relevantly, for the apical ancestor issue, Kurtjar people recognise that a Kurtjar person can adopt an individual, with the approval of the elders, so that he or she becomes Kurtjar under Kurtjar traditional law and customs. Lance Rapson, Joey Rainbow, Fred Pascoe, Bernie Rapson, Fred Edwards and Harold Banjo gave unchallenged evidence of this occurring. Harold Banjo said that his father had not been born Kurtjar but, subsequently, he had been adopted. He also said that his mother became Kurtjar by marrying his father.

129    In addition, in his first report Dr Martin collected other instances of Kurtjar recognising adoption as a licit form of recruitment to the group. For example, Joey Rainbow adopted the five children of his Gunggandji wife who, he said, are known and accepted by Kurtjar people. The children can chose to follow him or his wife, but “can’t go both ways”. Dr Martin’s work on genealogies of the persons whom the Kurtjar claim are apical ancestors revealed similar instances of recognised adoptions, including by the apical ancestor, Billy (or Willy) Sailor, who, with his wife Ivy, adopted Ned Bowyang.

130    Warren Beasley said that there needed to be respect between generations. He said that elders, as old people, knew about the country that they could speak for and needed respect. An elder can also speak for his or her family, which will listen to and respect that elder. Warren Beasley also said that, when he was young, Kurtjar people used to conduct initiation ceremonies called rbhaangk on Myra Vale station at a bora ground that was a sacred place. He said that initiation no longer occurs and instead the elders now “look at what a person knows and what their experience is”. He said that an elder nowadays is a person who “knows a lot about Kurtjar country and law and culture”.

131    Warren Beasley said that anyone who is Kurtjar belonged to and could hunt, fish and camp anywhere on, Kurtjar country. Fred Pascoe and Joey Rainbow gave similar evidence. However, individual families are closer to particular areas on Kurtjar country, even though their ancestors moved about the land area. Thus, some individuals are more knowledgeable about and can speak for a particular part of Kurtjar country than others. That may be because their ancestors passed down knowledge and stories within their family, and or they grew up at, and or worked at the specific locale.

132    Fred Pascoe, Joey Rainbow, Warren Beasley and other witnesses explained that some members of a Kurtjar family, therefore, were more knowledgeable about a particular area and that other persons, including other Kurtjar people, should show such family members respect and ask before hunting or fishing on that family’s country. That was because the unfamiliar person may not have local knowledge about areas of “poison ground” or spiritual dangers. They also explained that when Kurtjar people have to make decisions about matters concerning their country, they have to show respect by following what their elders say. Warren Beasley said that it is important to pay respect to the spirits of old people who have passed away at many burial sites on Kurtjar country. That was because the consequence of a person failing to pay respect there or disturbing a burial site would be that he or she could become sick or die.

133    I am satisfied on the evidence that Kurtjar traditional custom and law requires a Kurtjar person, whenever they go hunting, fishing or take other resources from their country, to call out to the spirits of the old people to inform them of their presence and tell them what it is that they are there for, for example, "there is a big mob of wooy or wanthork (fish) or yaangirr (turtle) I want to get here". Once the person has told the spirits why he or she is at the place, he or she can then hunt, fish or collect as intended but, as Warren Beasley emphasised, "you can only take so much and you must leave some for the old people. They will come out and get it once you go". That included leaving a portion of any cooked food for the ancestors. If the person did not leave some of the catch or collected matter for the spirits, he or she would not get anything the next time he or she returned. Kurtjar people also believe that they should share what they catch or collect with their hunting, fishing or collecting companions and, on returning home, with their family and elders.

2.4    Difficulties with access to Miranda Downs

134    After the displacement of indigenous populations that occurred following European settlement, indigenous people sought to preserve their connection to their country by working on stations such as the large pastoral leases in the region of Cape York where the claim area is. Warren Beasley said that, until a big flood in 1974, many Kurtjar people who had previously worked and lived on cattle stations and then had been forced off, lived at the Normanton reserve. The old people organised corroborees there and Kurtjar “law was very strong then, and so was the language”. They were still able to visit, and observed customs on, Delta Downs and Myra Vale stations without much difficulty. After the Commonwealth assisted the Kurtjar people in the 1980s in the acquisition of Delta Downs station and its transfer in 2002 to Morr Morr Pastoral they have had ready access to its land and waters.

135    In more recent years, Kurtjar people could not always visit, hunt, fish, gather and camp on, or use land on other stations in the claim area, including Miranda Downs, Vanrook, Stirling/Lotus Vale and Dorunda. Access to those stations depended on the attitude of their managers or owners, although they became more helpful since this application was filed, including allowing site visits with Dr Martin to prepare evidence.

136    Jenice Bee had difficulties with accessing places on Miranda Downs in recent years and has not been there because she and her family did not receive permission from the station manager. For example, she said that when she telephoned the manager of Miranda Downs to seek permission for her family to fish and hunt, she was refused access and, when her younger brother, Clayton, was working there, she and her family were not allowed to visit him and could only drive him to work there. Mildred Burns, Fred Edwards and Fred Pascoe gave similar evidence that they had, and knew of, difficulties accessing stations in the current claim area. Indeed, the late Fred Edwards said that “[t]hey even use choppers to come down and chase you. My heart goes out to all the places we can’t go”.

137    Dr Martin recorded in his first report dated 17 August 2017 that restrictions on the Kurtjar people’s access to Miranda Downs, arguably, had contributed to some ambiguity about the eastern extent of Kurtjar country.

138    The applicant tendered parts of a statement dated 8 February 2019 by Karina O’Neil, the director of operations of the Gulf Coast parties since 2011, which were the leaseholders of Vanrook, Dorunda and Stirling/Lotus Vale stations. She had also been manager of Vanrook station since 2016. Those stations cover over 825,000 hectares. She said that the Gulf Coast parties had a policy of requiring any visitors, other than employees and contractors, to be accompanied by authorised staff at all times. She attached photographs of large signs at entrances of the stations that stated “PRIVATE PROPERTY. Entry is prohibited without prior permission from the station manager”. Ms O’Neil said that the Gulf Coast parties’ stations made this clear by displaying the “NO TRESPASSING” sign depicted below at every physical point from which entry by road to the stations was possible:

139    Fred Pascoe said that he had seen those signs on the Gulf Coast parties’ stations. He said that, because he had not been allowed to visit Miranda Downs stations, he had not seen what, if any, signage was displayed there “but I’ve heard they’re there and it’s common knowledge that you’re not allowed to go out there regardless”. I accept that evidence that the general position of Kurtjar people was that they are not able to access much of the claim area, including Miranda Downs.

140    In contrast to this position, Joey Rainbow said that he had never had trouble accessing Vanrook and Miranda Downs stations and that he telephones there and asks for permission to visit. However, I am satisfied that he was treated differently and exceptionally from other Kurtjar people, perhaps because of his position and status with Morr Morr Pastoral. As a carefully phrased question in Stanbroke’s counsel’s cross-examination revealed, consistent with Stanbroke’s closing submissions, Joey Rainbow’s experience was far from common:

So I’m not talking about other Kurtijar people, but I’m talking about you. You don’t have any problem getting on Miranda Downs because you just call up and ask; that’s right, isn’t it? --- I call up.

141    Stanbroke addressed the comparative lack of Dr Martin’s recordings of Kurtjar sites on Miranda Downs as compared to his much more abundant recordings of those sites as one went farther west towards the coast in the following closing submission:

This lack of evidence cannot be excused or explained by a purported difficulty in accessing Miranda Downs. There is no evidence to support any inference that the Kurtijar people were prevented from accessing Miranda Downs in preparing for this case. Indeed, Kurtijar elders, their anthropologist and legal counsel had repeated access, including by helicopter, to the station. Further, the evidence of Joseph Rainbow was that he only needed to “call up” to access Miranda Downs.

142    I reject that submission. I accept that Stanbroke allowed Joey Rainbow access and provided access for the purpose of the Kurtjar people, with their lawyers, obtaining evidence to use in this proceeding. However, that was not the general position. Stanbroke could have, but did not, give evidence to contradict the evidence that Kurtjar people were, and were entitled to think that if they sought they would be, refused access to Miranda Downs station. I find that Stanbroke did routinely refuse access to Kurtjar people in the same way as the Gulf Coast parties did for their stations.

3    The succession issue

3.1    The anthropological evidence – introduction

143    The experts agreed that, in contrast to the greater number and richness of the nature of sites in the western part of the claim area, the sites that Kurtjar people are now able to identify as significant to them on Miranda Downs station are more limited. On the evidence, those areas on Miranda Downs are primarily associated with water and, typically, are ones where the Kurtjar stockmen would have had to take cattle as they mustered or looked after the animals. The evidence did not disclose any increase sites on Miranda Downs. However, the evidence of spiritual sites on Miranda Downs included the water fairy at Bayswater Waterhole, the presence of red legged devils in forested areas, the chacharr or rainbow serpent in waterholes and the ancestral Kurtjar spirits of stockman or ancestors buried at or near some of the same sites as the chacharr occupied. The experts also agreed that the anthropological evidence showed that two groups, the Walangama (to which Garry Owens made reference) and the Rib, occupied parts of the area now covered by Miranda Downs but became extinct since European settlement.

144    The succession issue raises two substantive questions if Miranda Downs were not always Kurtjar country, namely: first, were the traditional laws and customs of the Rib and Walangama part of the overarching laws and customs of a larger society of which the Kurtjar were also a part (as the Kurtjar primarily contended) or, secondly, if not, have the Kurtjar either licitly succeeded according to their traditional laws and customs to the land and waters previously held by the Rib and Walamgama (as Queensland, and the Kurtjar in the alternative, contended) or illicitly asserted authority over that area (as Stanbroke contended)?

3.2    The statutory scheme

145    Relevantly, the Act provides:

4    Overview of Act

Recognition and protection of native title

(1)    This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.

…

10    Recognition and protection of native title

Native title is recognised, and protected, in accordance with this Act.

11    Extinguishment of native title

(1)    Native title is not able to be extinguished contrary to this Act.

…

Division 2 – Key concepts: Native title and acts of various kinds etc.

223    Native title

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.

…

225    Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

3.3    Legal principles

146    In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ identified some fundamental principles that apply to the recognition of native title rights and interests by the common law of Australia pursuant to s 223(1) of the Act. They said (214 CLR at 453 [76], with the agreement of McHugh J at 467–468 [127]–[128], [134]):

… It follows that the reference in par (c) of s 223(1) to the rights or interests being recognised by the common law of Australia cannot be understood as a form of drafting by incorporation, by which some pre-existing body of the common law of Australia defining the rights or interests known as native title is brought into the Act. To understand par (c) as a drafting device of that kind would be to treat native title as owing its origins to the common law when it does not. And to speak of there being common law elements for the establishment of native title is to commit the same error. It is, therefore, wrong to read par (c) of the definition of native title as requiring reference to any such body of common law, for there is none to which reference could be made.

(italics emphasis in original, bold emphasis added)

147    Gleeson CJ, Gummow and Hayne JJ held that the Act’s references to the traditional laws acknowledged and the traditional customs observed in the definition of native title rights and interests in s 223(1) comprised rules of a society that have normative content. That is, the rights and interests concerned must originate in, and owe their existence to, a normative system that existed at sovereignty and at that time were also recognised by the common law: Yorta Yorta 214 CLR at 443–444 [42]–[44]. Their Honours held:

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.

That is not to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be “significant adaptations”. But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. 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.

(citations omitted; bold emphasis added)

148    They explained that the word “traditional” is “apt to refer to a means of transmission of law and custom” and that a traditional law or custom is one that has been passed from generation to generation within a society, usually orally and by common practice (214 CLR at 444 [46]). However, as used in the Act, the word carries with it two additional elements, being, first, that the origins of the laws and customs must be in the normative rules of the First Nation people’s society that existed before sovereignty and, secondly, that the normative system, namely, the traditional laws and customs, under which the rights and interests are possessed, has remained in place since sovereignty as a system with continuous existence and vitality (at 444–445 [45]–[47]). Their Honours said (at 445 [49]) that:

… [l]aw and custom arise out of and, in important respects, go to define a particular society… [being] a body of persons united in and by its acknowledgement and observance of a body of law and customs (We choose the word “society” rather than “community” to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group).

149    Gleeson CJ, Gummow and Hayne JJ held that if the society out of which the relevant body of laws and customs arose ceases to exist, those laws and customs cease to have continued existence and vitality (at 445–446 [50]). They recognised that the identification of a society in which traditional laws and customs have a continuing existence and vitality in many cases “will… be very difficult” but emphasised that such laws and customs cannot exist in a vacuum, independently of the ongoing existence of the pre-sovereignty society. They held that (at 446–447 [52] and [54] and see too at 447 [56]):

the relevant rule of recognition of a traditional law or custom is a rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty. It is not some later created rule of recognition rooted in the social structures of a society, even an indigenous society, if those structures were structures newly created after, or even because of, the change in sovereignty.

(emphasis added)

150    Their Honours explained that continuity of the laws and customs of a pre-sovereignty society was critical to the recognition of native title under the Act. That was because the interposition of a new society that subsequently observed or adopted the laws and customs of an extinct society was not possible. The principle of the common law which the Act embodied was that only native title that existed at sovereignty was capable of recognition and that the consequence of the interposition of a new society (even if it later adopted the extinct one’s laws and customs) would create a new basis for assertion of native title that could not be recognised in the scheme of the new sovereign’s legal order. That was because such a title was not pre-existing in those who adopted the laws and customs of the extinct society (at 445–447 [50]–[56]).

151    This means that, in approaching the issue of succession, it is critical to identify whether the group currently seeking to assert native title rights and interests as a successor to an extinct group is a part of the overall society in which both the current and (until it ceased to exist) extinct group acknowledged the same traditional laws and observed the same traditional customs continuously since before sovereignty, with acceptable adaptations, in the sense explained in Yorta Yorta 214 CLR 422 which I discuss below. In other words, a group that at sovereignty was not a part of an existing society but subsequently adopted laws and customs of that society cannot assert native title rights and interests in land and waters that at sovereignty a now extinct group, that then formed part of the society, possessed.

152    Importantly, their Honours held that the traditional laws and customs that existed at sovereignty can be adapted in response to the impact of European settlement. They noted that the assessment of, first, the significance of the change or adaptation and, secondly, precisely what was changed or adapted, can raise difficult questions of fact and degree for which there is no bright line test. They explained (at 455 [83]–[84]):

What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?

… Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

(italics emphasis in original, bold emphasis added)

153    Accordingly, Gleeson CJ, Gummow and Hayne JJ held that the acknowledgement and observance of the traditional laws and traditional customs must have continued substantially uninterrupted since sovereignty. They said that the qualification “substantially” (214 CLR at 456–457 [89]):

… 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.

(emphasis added)

154    It follows that the present ability of Aboriginal peoples or Torres Strait Islanders to assert communal, group or individual rights or interests in relation to land or waters within the meaning of the expressions “native title” or “native title rights and interests” as defined in s 223(1) of the Act depends on them establishing that:

(1)    at sovereignty, a society existed;

(2)    that society had normative rules, being a body of traditional laws and traditional customs, under which those communal, group or individual rights and interests were possessed;

(3)    the society has continued substantially uninterrupted and acknowledged those traditional laws and observed those traditional customs that comprise the normative system at sovereignty to the present time; and

(4)    despite any changes to or adaptations of the laws and customs since sovereignty, the normative basis in the present society for the possession of those rights and interests is still rooted in the traditional laws acknowledged and the traditional customs observed by it.

155    What is of present significance is that Gleeson CJ, Gummow and Hayne JJ (with McHugh J’s concurrence) recognised that traditional laws and traditional customs can have changed and adapted over the centuries since the disruptions caused by European settlement, yet retain their inherent normative content to the present day: Yorta Yorta 214 CLR at 455–457 [82]–[89].

156    In Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia (2017) 365 ALR 624 at 640 [33], I discussed the task of assessing evidence as to the continuity of traditional laws and customs, saying:

The adducing and assessment of the evidence of individuals as to the existence, continuity and observance of traditional laws acknowledged and traditional customs observed must take account of several factors, in addition to those ordinarily applicable in a court’s resolution of issues of fact. First, the indigenous inhabitants of Australia did not have any written record of their history, laws or customs. Accordingly, those matters passed down orally from indigenous generation to generation, and recordings in such contemporaneous written records that European settlers or others made of their interactions with, or observations of, indigenous people. Secondly, indigenous societies did have forms of social organisation, in at least some of which, among other matters, one or more individuals in a community or group had principal responsibility for interpreting or possessing knowledge of the traditional laws and customs. As with any situation involving human recollection of a particular fact (including the content of traditional laws or customs passed down orally over generations within not just the wider society but a family unit), there will be differences in recollections, perhaps compounded by their recitation in discrete groups, so that to expect complete coherence in individual accounts of those matters today would be unrealistic. Indeed, it would be contrary to the lived experience of life. Thirdly, indigenous peoples are very often no longer living on their country or able, continuously, to observe their traditional lives. Rather, European settlement brought about substantial dispossession of most indigenous societies from not only their traditional land and waters, but, in some instances, of the individual members from each other. In those circumstances, the Australian common law must make appropriate allowances for practical adaptation of traditional laws and customs, as well as the potentially differing understandings of individuals within a claim group about their content and contemporaneous acknowledgment or observance.

157    In Western Australia v Sebastian (2008) 173 FCR 1 at 28 [84], Branson, North and Mansfield JJ held that it is not necessary that each member of the society or group has precisely the same knowledge, or comprehension of the operation, of the body of traditional laws and customs. Their Honours affirmed the reasons of Merkel J, as the primary judge, that the issue of succession of one society or group to another’s native title rights and interests did not arise in that proceeding because there was always only one society (173 FCR at 33 [100]). Their Honours found it unnecessary to decide whether succession occurred as one group or clan declined in population (but had not become extinct) and the other succeeded overtime in accordance with the common traditional laws and customs of both clans or that the second clan had “imperialistically” taken over the diminishing clan’s area (at 33–34 [103]–[104]). However, the Full Court said that it inclined to the view that Merkel J’s finding, that succession had occurred, was available on the evidence. Branson, North and Mansfield JJ referred to the anthropological expert evidence which, there, supported the proposition that succession can occur where the traditional laws and customs of both groups or clans allowed it (at 31–33 [97]–[102]).

158    Earlier, in Dale v Moses [2007] FCAFC 82 at [120], Moore, North and Mansfield JJ had said, again in obiter dicta, that the discussion by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta 214 CLR at 442–444 [41]–[44] was “probably directed to intergenerational transmission of rights and interests” in the same society. Their Honours said that:

The observations of the members of the High Court do not establish a principle of the type apparently relied on by the appellants, namely that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest can ultimately be recognised as rights and interests of the transferee society for the purposes of the NTA.  The primary judge was probably correct in rejecting this contention.  However it is not an issue which it is necessary for us to explore as the legal proposition, if correct, would only be engaged and operate in the appellants favour if certain matters of fact were established.  In the present case, the required factual foundation is lacking in several important respects.

159    In Croft (on behalf of Barngarla Native Title Claim Group) v South Australia (2014) 325 ALR 213 at 336–337 [715]–[716], Mansfield J noted that, earlier, in AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193 at 328–329 [577]–[579], Bennett J also discussed, but did not need to decide, whether there were differences between the obiter dicta in Sebastian 173 FCR 1 and Dale [2007] FCAFC 82 on the question of whether a different society could succeed the native title rights and interests of another group. Mansfield J said (at 337 [717]):

In my opinion, there is no inconsistency between the views expressed in Dale v Moses and Sebastian. A society for the purposes of native title jurisprudence is merely a “body of persons united in and by its observance and acknowledgment of a body of law and customs”: Yorta Yorta at [52] per Gleeson CJ, Gummow and Hayne JJ. If there are two groups that share a common or closely similar body of law and customs, then they are one “society” for the purposes of native title. It is certainly possible for one group within a single society, in respect of land formerly possessed by another group within that society, to have obtained rights and interests in that land which are rights and interests possessed under traditional laws and customs. There is no reason why a society’s traditional laws and customs could not provide for such “transmission” or “succession” between groups in particular circumstances. However, if two groups’ traditional laws and customs vary to an extent such that they cannot be considered one “society”, then it is difficult to see how the “transmission” of one group’s country to another group, or the “succession” to one group’s country by another group, could lead to the “transferee” group’s obtaining rights and interests in the relevant land that could be said to be possessed under traditional laws and customs.

(emphasis added)

160    I am of opinion, contrary to the passing remark in Dale [2007] FCAFC 82 at [120], that Gleeson CJ, Gummow and Hayne JJ were not limiting themselves to issues of intergenerational transmission in Yorta Yorta 214 CLR at 442–444 [41]–[44]. Rather, their Honours were discussing, as the whole of their reasons reveals, at a level of principle, the nature of the normative content of the traditional laws and customs at sovereignty and at the time of the relevant events being determined that had to exist continuously for native title rights and interests to be capable of current recognition in accordance with s 223(1) of the Act. In any event, there does not appear to have been any case that has decided the question of whether and, if so, how, succession can occur. But, none of the cases, including Yorta Yorta 214 CLR 422, discussed the different question of whether another people who are not part of the society of an extinct people can succeed to the extinct people’s land and waters under pre-sovereignty laws and customs that both the extinct and current societies observed as a normative system that would operate because of such an extinction occurring. The experts all agreed, as I explain at [201] below, that all or virtually all Aboriginal groups would have had such a process. However, because of the findings that I have made, it is not necessary to explore this issue in these reasons.

161    In Western Australia v Ward (2002) 213 CLR 1 at 64–65 [14], Gleeson CJ, Gaudron, Gummow and Hayne JJ explained the essentially spiritual nature of First Nations’ people’s relationship to their country. Their Honours said:

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd [(1971) 17 FLR 141 at 167], Blackburn J said that: “the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”. It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a “non-exclusive agricultural lease” or a “non-exclusive pastoral lease”, whether the native title rights and interests “confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others”.

(emphasis added)

3.4    Stanbroke’s submissions

162    Stanbroke argued, principally based on Dr Brunton’s evidence, that the following nine features of the evidence weighed against a finding that the Kurtjar have established that licit succession occurred in the area of Miranda Downs, namely:

(1)    the general lack of sites on Miranda Downs;

(2)    the absence of dreaming, ceremonial or increase sites;

(3)    the inference and overly general nature of the evidence about the chacharr;

(4)    the pastoral, rather than traditional, origin of sites that the Kurtjar relied on to establish connection to Miranda Downs, such as the location of various huts and camps on stock routes or at waterholes for cattle;

(5)    the absence of reliable evidence as to a “succession event”;

(6)    the inconsistency in, and lack of, evidence as to totemic belief and any connection of that belief to Miranda Downs;

(7)    the inconsistency in evidence as to, first, dangerous spirits on Miranda Downs and, secondly, the ability of the Kurtjar to manage those spirits;

(8)    the inconsistency in evidence as to the traditional boundaries of Kurtjar country, in particular in the context of the Black and Gilbert map; and

(9)    the lack of evidence or explanation about the overlap from the original Tagalaka native title claim.

163    Stanbroke contended that these factors, which it supported with references to the evidence, or lack of it, on which it relied, when assessed cumulatively, weighed strongly against the occurrence of licit succession. It urged that Dr Brunton’s evidence on connection should be preferred to Dr Martin’s and Dr Palmer’s.

3.5    Expert evidence

164    In their first joint report (prepared before the trial), the experts accepted what Dr Lauriston Sharp had written, namely, that “spiritual correspondence” (indicated by matters such as totemic commonality, shared dreaming tracks, spirits and associated rituals) was a critical component of succession in this region of North Queensland. However, at that stage the experts said that they would be assisted by further evidence of ancestral connection and assertion of rights in addressing the “complex issue” of whether the Kurtjar people had acquired rights and interests in land and waters within the claim area from a now extinct group in accordance with traditional laws and customs.

165    In their second joint report (also prepared before the trial) the experts agreed that the use today of labels such as “Kurtjar” and “Ariba” represents the “ossification of more labile forms of identification relating to Aboriginal identity, country, language and dialects at the time of effective sovereignty”. They explained that research had shown that, historically, Aboriginal people spoke multiple languages and that “language was a marker of shifting social identities in country”. They said that, more recently, there has been a move to “greater corporatisation of Aboriginal identity”. That had occurred partly as a result of Aboriginal groups having to engage in the wider Australian society and assimilating anthropological concepts such as “the tribe”.

166    The experts explained that historical mapping of a First Nations people’s country was sometimes based on a priori concepts of tribal boundaries and that this had influenced contemporary views. They also said that, in addressing the allocation of rights and interests at sovereignty, it was not useful to enquire into ‘tribes’ and ‘boundaries’ and that they would address this issue by considering the countries of apical ancestors included in the claim group description. I deal with the apical ancestor issue below, but many of the differences that the experts expressed in their various reports resolved during their concurrent evidence. The experts identified several maps, some of which were historical, as relevant to their opinions and discussed these during their concurrent evidence.

167    In 1996, Dr Black prepared the map below for his draft of a Kurtjar dictionary (the Black and Gilbert map):

168    In his notes on the Black and Gilbert map, Dr Black wrote (identifying that Rolly Gilbert was his principal source of what it depicted):

The Kurtjar boundary was worked out as carefully as possible on the basis of Rolly Gilbert’s information, and this agrees in general terms with other information available. Obviously, however, the boundary cannot be considered as reliable as one mapped by a trained cartographer working on location with numbers of authoritative Kurtjar and representatives of neighbouring groups. In any case, note how the available information suggested that the southern boundary distinguished “proper” (or perhaps “core”) Kurtjar country from that shared by the Kurtjar and the Kuthant — hence “Kurtjar and Kuthant mixed”. Other information suggested that the Kurtjar may also have shared the country along the eastern boundary north of the Gilbert River with other groups.

(emphasis added)

169    Dr Brunton prepared the following map which illustrates some of the disparities between the mapping attempts of one well-known anthropologist, Norman Tindale, and the attempt in the Black and Gilbert map, which is superimposed over the pink coloured claim area (the map should also be understood on the basis that the Kurtjar area on the west coloured white covers the Delta Downs station).

170    During their concurrent evidence the experts discussed the relatively sketchy and inconsistent historical materials that various anthropologists and the linguist, Dr Black, had written about the locations of Kurtjar country, its boundaries and those of their neighbours. Because of the significance that Dr Brunton placed on the Black and Gilbert map, the expert evidence went into some detail about Dr Black’s work and how it could be interpreted.

171    Early in his field work, Dr Black prepared a report in January 1975 which included the map below:

172    As the agreed facts recorded, summarised at [16] above, since effective sovereignty it is likely that, first, estate groups in relation to parts of the claim area have become extinct and those parts are now included in the claims of the Kurtjar people and, secondly, the pre-sovereignty laws and customs provided for succession to country in which a group holding rights became, or was becoming, extinct. Warren Beasley’s statement to Dr Martin as to how Kurtjar people had come to “keep an eye” on Miranda Downs station, that I set out at [62] above, referred to “tribe here [at Miranda], they’re all gone”. This appears to accord with the historical anthropological writings that referred to or discussed the now extinct Rib and Walangama language speaking people or groups occupying parts of Miranda Downs in the past.

173    While I found that each of the experts was endeavouring to give his evidence honestly, I formed the view that Dr Brunton was prone to search for reasons not to make obvious concessions. For example, Dr Brunton relied in his report and oral evidence on the Black and Gilbert map as significant evidence that Kurtjar country was well to the west of Miranda Downs. In response to an earlier report by Dr Brunton, Dr Martin set out in his first supplementary report statements that Dr Black recorded in his 1974, 1975 and 1977 field notes that showed that the Black and Gilbert map relied on Rolly Gilbert without taking into account statements by other contemporary, knowledgeable Kurtjar elders as to the eastern extent of Kurtjar land, in the following paragraph:

Further, I note that Black’s reliance on Rolly Gilbert skews his data somewhat (a point which could also be made about Norman Tindale’s mapping efforts in the region). At the time of Black’s research, Kurtjar people maintained a variety of views about the location of Kurtjar country. These views generally suggests that Kurtjar territory expanded beyond the boundaries identified by Black. For example:

a. Halo Ward told Paul Black: ‘All Kurtjar country, right up to Stirling, Miranda … Strathmore’ (Black 1977: 40).

b. Billy Adam told Black: ‘Kurtjar, they’re just … just the part of the country here [at Normanton?]…. Around Delta, an’ all them places, around the Gilbert River … That’s the … that’s the real centre the … centre the … tribe of the Kurtjara’. In response to questioning from Black, Adam expresses the view that Kurtjar people came south of Walkers Creek ‘right through … back here to Normanton’, ‘right down the Gulf, right on the coast there’, past the Gilbert ‘just about … far as the … Macaroni … an’ then … back … from there … back … further up …. At the other end been … uh … this … this … (Kunjun), an’ (Kokobadig) and all the people up there further … An’ back around, back this way [i.e. to the east] it’ll be (Kumunmur) ‘n’ … ‘nd, uh … (Takalak), all them people, back this way, towards Croydon ‘n’ Georgetown’ (Black 1974, Fieldbook V: 20-22). Asked how far inland, Kurtjar people’s country went, Adam told Black ‘as far as the … forest … I know … is far as … between … between Gerogetown an’ Croydon’ (ibid: 22).

c. Peter Campbell told Black that Kurtjar territory included Normanton, Maggieville, Double Lagoon, Myra Vale, Lotus Vale, Miranda Downs, Glencoe (Black 1974, Fieldbook V: 47).

d. Robert Kettle told Black that Kurtjar territory was ‘down to the north side of the Norman at Normanton … “up” (inland) as far as Miranda, Vanrook … Strathmore … (kumulmar/takalak at Croydon) … Glencoe, all around Maggieville; north to Dunbar’ (Black 1975, Fieldbook XI: 46).

e. Toby E told Black that Kurtjar ‘between the Gilbert and Walkers Creek …. [and the] Staaten’ (Black 1974, Fieldbook V: 33).

(emphasis added)

174    During the concurrent evidence, Dr Brunton became evasive about what those informants meant, saying “it’s not clear whether they’re talking about country that they’ve worked, and which they see themselves as having particular association with”. He gave the following evidence:

MR HUGHSTON: Halo Ward told Paul Black: All Kurtijar Country right up to Stirling, Miranda, Strathmore. What’s the ambiguity about that statement? - - - Well, it’s puzzling because Strathmore is to the – to the east of – of Stirling and Miranda.  “Right up to” does not necessarily say “includes”.  I just don’t know just what he was – what he was seeing the extent of country and what he actually meant whether he was – and I go back and have to repeat myself – whether he was referring to traditional country or whether he was referring to country with which Kurtijar had to be associated.  Certainly, the extensive list of place names that Paul Black recorded from Halo Ward is limited to the, sort of, coastal strip.  I think except for one – maybe Dorunda – he – none of those place names extend over to what he supposedly included.

HIS HONOUR: I’m not following the geography.  If we look at your map 10 on page 1686 [being the map reproduced at [171] above], Strathmore seems to be at the east - - - Yes.

- - - of Miranda Downs, so if it goes right up to Strathmore, it would seem that Halo Ward is suggesting – assuming that Strathmore constitutes the western boundary of the land – it includes Miranda. - - - Your Honour, Strathmore is a very large station.  What he has indicated there is the homestead.  So it – you know, Strathmore could well include any – I don’t have the dimensions, but it really could include a very large area, so he may have been thinking of, sort of, zigzag kind of boundaries.  I just don’t know…..

MR HUGHSTON: Now, irrespective of how far into Strathmore he might be saying Kurtijar Country is, you can’t get to Strathmore until you’ve gone through Miranda Downs.  So he’s clearly including Miranda Downs as Kurtijar Country. - - - The – I just – I mean, I can’t respond to it because I just don’t have the – the boundaries and geography of the map and the roads in my mind.  But it’s a possibility.

Well, how about what Peter Campbell said when he names, in that same paragraph, Double Lagoon, Myra Vale, Lotus Vale, Miranda Downs, Glencoe. - - - Yes, I accept that he said that.  And as – the question is, what did he mean by that?  Was he referring to traditional boundaries, or was he referring to country which Kurtijar – or mean Kurtijar had come to be associated with through working on pastoral stations.

Well, they’ve all been asked where do they consider Kurtijar Country to be.  Isn’t it the most obvious interpretation of that, that he’s asking him where his traditional country is?  The country associated with Kurtijar People. - - - These are questions that are asked at very different times.  It’s not as though we – the – it’s the one sort of question that has been taken from a – you know, a formal list.  We just don’t know – 74, 75, 77.

(emphasis added)

175    Both Dr Martin and Dr Palmer were experienced as anthropologists in obtaining information from Aboriginal informants about the extent of their country. Dr Martin said that “informants will tend to move through country” and Dr Palmer, agreeing, said “the Aboriginal people tend to describe their country as a journey through it”. Dr Brunton, subsequently to his evidence that I have quoted above, revealed that he did not have enough experience in cultural mapping with Aboriginal people to express a view as to how they describe their country. In my assessment, Dr Brunton’s lack of experience in this regard is likely to have caused him not to have appreciated the significance of statements such as those of Halo Ward and other knowledgeable Kurtjar elders and instead to have placed too much reliance on documents produced by Dr Black as to the location of Kurtjar country.

176    From an anthropological perspective, as Dr Palmer explained, because a language group is neither a territorial group, nor a society, there is no direct correspondence between the location of the speaker of a language and the extent of the territory of a society. Dr Martin explained that anthropological methodology for the cultural mapping of land interests involves the researcher recording in field notes what various Aboriginal informants state as the location of their land interests and then accompanying each person to the area he or she described. He said that Dr Black had not appeared to have done this for other informants who said that Kurtjar country was more extensive than the places that he visited with Rolly Gilbert and Butcher Pallew. Thus, while Rolly Gilbert was very knowledgeable about areas in the north (near the Staaten River and Macaroni station, with which he had a totemic attachment), Dr Martin said that Dr Black had made a field note that Rolly Gilbert’s knowledge diminished in other areas where Dr Black had to rely on different informants. That experience is very common, namely, particular members of a group will have detailed knowledge of (and sometimes authority to speak for) country in one location, while others can do so for various different locations within a larger area associated with a land owning group or society. Dr Palmer instanced that a totemic attachment could give an individual a right to speak about a particular locale, which accords with the lay evidence to which I have referred at [133]–[134] above.

177    I do not accept that Dr Brunton was unable to understand that the whole of Strathmore station was east of Miranda Downs. He had been the expert witness for Stanbroke not only in this proceeding but in an earlier proceeding involving a Tagalaka native title claim (being the one that, at one stage, made the claims over Miranda Downs that Garry Owens attributed to a ‘misunderstanding’ (see at [119] above)). Dr Brunton was very familiar with the boundaries of Miranda Downs. In my assessment, he was clutching at straws to avoid acknowledging, what I find to be, his excessive reliance on both the Black and Gilbert map as being “the most detailed map of Kurtjar boundaries available” and his criticism of Dr Martin’s contextualisation of how the Black and Gilbert map and another document that Dr Black had prepared in 1980, entitled “About Kurtjar Land”, came into being.

178    There are two versions of About Kurtjar Land in evidence. I admitted those two documents into evidence but limited their use under s 136 of the Evidence Act to evidence of documents considered by the experts but not as evidence of any of the facts asserted. One contained four unheaded and undated pages of names and purported signatures. Some names appear twice and some signatures are in the handwriting of the same person who wrote other names and signatures. This version does not include the map that the second paragraph on its first page anticipates in saying “the map on the next page of this paper shows where our land is”. The other version contains a map on the second page that is reproduced below:

179    The legend for this map notes that its place names are spelt phonetically and so would be meaningless to a non-expert linguist. It states that the map was drawn in Canberra in 1980 by Dr Black and Rolly Gilbert. It also has numerous place names east of the north-east boundary line below the Staaten River. That indicates that Dr Black and Rolly Gilbert were apparently going into some detail about sites that were not shown as Kurtjar on the map.

180    Much of the area of Kurtjar country depicted in both the Black and Gilbert map and the map in About Kurtjar Land came to be included in Delta Downs station, as the map below shows (the Black and Gilbert boundary is the red dotted line and the solid blue line is the boundary of the claim area, thus, land to the west of the blue line includes Delta Downs station):

181    I accept Dr Martin’s and Dr Palmer’s evidence that Dr Robert Layton, the anthropologist who accompanied Dr Black on his field work, recorded that he, Dr Black and Warwick Dix (all of whom were working at the Australian Institute of Aboriginal Studies) recorded that they only visited the areas depicted as Kurtjar in the Black and Gilbert map. In a 1974 field note, Dr Black recorded that Rolly Gilbert told him that Kurtjar country extended out as far east as Strathmore on the Einasleigh River, but the eastern border was not clarified. In 1975, Dr Black made a field note in which he recorded that Rolly Gilbert responded to his asking “tell me all the dinkum Kurtjar places you can think of” (where ‘dinkum’ seemed to mean pre-sovereignty occupation):

Delta … /marivayl/ [i.e. Myra Vale] … an’ … Lotus Vale … an’ Stirling … an’ Miranda is kumulmar [Gilbert seems to have used this term interchangeably for Rib and Walangama]…/Vanrook … all in the … that’s the kumulmar … mixed with the kunjin … Staaten … Koko-bera … an ‘kunjin … olkol all mixed, three lots of ‘em/ Macaroni ... he’s a belong to Kurtjar … dinkum Kurtjar

(emphasis added; Dr Martin’s annotations of this note are in the square brackets)

182    Dr Martin noted that this description was ambiguous. However, on one view, Rolly Gilbert could have been referring to an overarching society comprising the other language groups or tribes as all “dinkum Kurtjar”. Importantly, on the 1977 field trip, Dr Layton made the following note:

Rolly states that Walker Creek is Kurtjarr boundary in south; & that this morning he also mentioned it as s[outhern] boundary of Delta Downs – the Station he wants the Kurtjarr to have. The D[elta] Downs/Lotus Vale boundary was also given as a Kurtjarr boundary yesterday … may be some contemp[orary] political significance in his specifications.

(emphasis added)

183    Dr Martin observed that those “political” considerations may have influenced the mapping based on Rolly Gilbert’s concern to secure Delta Downs station for the Kurtjar people. Dr Palmer also observed (with Dr Martin’s agreement) that the field trips were on the western parts of the claim area where they were collecting information and site details and “we don’t really know what their views were about this eastern area. It’s not in the material per se”. Dr Palmer added that in 1975 in his hand written report for the Institute (in which the map at [171] appeared), Dr Black referred to the Walangama in a list of other languages. Dr Palmer said that this report mixed up (Dr Black’s interest in) language with ancestry, which was related to a language identity. Dr Martin agreed, saying that the hand-drawn map (at [171]) was of language territories and that Dr Black was working in a conceptual framework that associated language groups with rights bearing entities.

184    In addition, Norman Tindale recorded in 1963 that Rolly Gilbert had told him that “Delta Downs is the centre to which his people drifted”. I infer that Dr Layton’s observation about the “political significance” of Rolly Gilbert’s focus on Delta Downs in his interactions after 1974 with the Institute personnel is correct and that that focus and the presence of large numbers of Kurtjar people on Delta Downs influenced the mapping of what was said to be Kurtjar country.

185    Importantly, Dr Black’s hand-drawn map (at [171]) depicts that the Kurtjar and Rib areas overlapped in the east. Dr Palmer said that this drawing conformed to the view Dr Black expressed in his 1975 report, namely that the Rib and Kurtjar were virtually indistinguishable and the Rib might have been a subgroup of an overarching society that also included the Kurtjar. Of course, as Dr Palmer noted, by 1977 Dr Black had learnt much more and may have changed his view when writing About Kurtjar Land.

186    As Dr Martin observed, Dr Brunton had chosen, in effect, to prefer Rolly Gilbert, Butcher Pallew and Willy Sailor over the other Kurtjar persons who made statements that Dr Black recorded in his field notes as to their understandings of the extent of Kurtjar country. In my opinion, that preference affected Dr Brunton’s consideration and evaluation of the other material in evidence so that he discounted indicia that suggested that Kurtjar people had connection with or had succeeded to areas to the east of those in the Black and Gilbert map. There were indicia in About Kurtjar Land itself that Dr Black wrote it based on information from Rolly Gilbert and Butcher Pallew to assist them in garnering support for the acquisition of Delta Downs for the benefit of the Kurtjar people. It is not difficult to infer that, in the context of that period, elders like Rolly Gilbert and those who supported their cause, like Dr Black, did not wish to raise more extensive claims because of concerns that the efforts to promote the acquisition of Delta Downs might be derailed if it appeared that the Kurtjar people had claims to a much larger area. The account in About Kurtjar Land presented a strong case (as was common ground both with the experts and the parties) for the Kurtjar’s continuous connection to the area centred on and immediately around Delta Downs. The document, although phrased in places as if it were written by Kurtjar people, was Dr Black’s version of information. It contained phonetic spelling of Kurtjar words that cannot be spelt or read unless one is trained in that skill. For example, it stated:

187    The document also recorded that over the previous 10 years “quite a lot of white people have been coming through Normanton saying that they want to help us in different ways”, including by trying “to get us one piece of land”. It stated that Rolly Gilbert had been “going round for years to places as far away as Canberra to tell people about these things… Maybe there’s no way we can get our land back today, we don’t know”. One of the versions of the document in evidence had a cover sheet written by Dr Black with his suggestions about how to get it signed and then sent to various persons, including members of Parliament, government bodies, other Aboriginal groups and the media “to kelp Kurtjar get their land back”.

188    In his first report, Dr Martin observed that he had recorded many conflicting opinions of Kurtjar individuals as to the eastern boundary of Kurtjar country. As he and the other experts agreed, there is usually a fluidity of where exactly First Nations people locate their territorial boundaries that cannot match the skill of a cartographer. Dr Martin said that the Kurtjar people’s strong association with Delta Downs “clearly complicates the question of boundaries in the east” because they have come to identify it so readily as their country. And, the restrictions on access that, among others, Miranda Downs station, imposed over many years has contributed to some ambiguity among Kurtjar people about the eastern boundary of their country.

189    Dr Martin also opined in his first report that the geographic flexibility of Kurtjar individuals in identifying the eastern boundary “is also complicated by what appears to be the operation of a completed process of licit succession by Kurtjar peoples to part of what was previously Walangama and Rib country with the demise of those language groups” and that Tagalaka country is further to the east.

190    Dr Martin explained in his first report the anthropological significance of Warren Beasley’s ambiguous statement to him that I have quoted at [62]. He said that, there, Warren Beasley had used “Tagalaka” uncertainly to refer to Aboriginal groups previously associated with country to the east of the Kurtjar people’s land and waters. Dr Martin said that Dr Black, in a 2017 paper, discussed what Johnny Casey (born in 1909) had told him of the similarities between the Kurtjar, Rib and a Croydon language. Croydon is a town to the east of Strathmore Station which is associated with the Tagalaka. Dr Martin opined that the Croydon language to which Johnny Casey referred was presumably Walangama because, although they spoke a different language, he (Johnny Casey) could understand it. Dr Martin said that, having been born in Croydon, Johnny Casey married Melba Duncan at Delta Downs and his children included Edith Casey, Mervyn Edwards’ wife. He said that this family identified solely as Kurtjar and expressed no connection with Rib, apparently having “retrospective[ly] prun[ed]” knowledge of Johnny Casey’s distinct identity. However, some knowledgeable Kurtjar, including Warren Beasley and Barbara Bynoe, continued to associate Johnny Casey with another unnamed group to the east of Kurtjar country. He said, however, that this was an ambiguous example of a succession event. Similarly, the descendants of Bynoe B (the son of Kangaroo, who was associated with the Gilbert River, and Molly, who was associated with Croydon, both of whom the experts agreed were apical ancestors of the Kurtjar people), all identify as Kurtjar. But many Kurtjar individuals remember Bynoe B as coming from Croydon (where his parents then either lived or to which he had been removed).

191    Dr Martin said that in 2017 Dr Black had changed his earlier view and by then considered the Rib people were distinct from the Kurtjar. However, Dr Black considered that all three languages had cognate or closely cognate section or “skin” terms (i.e. terms that divided persons, animals and things into categories for which traditional laws and customs prescribed rules about, for example, marriage and avoidance). Indeed, Dr Black considered that Kurtjar and Rib languages were very much alike, with only occasional suggestions of difference.

192    Dr Martin referred to Dr Layton’s field notes of information that Rolly Gilbert imparted. He said that the Kwanthara (so named by, or based by Dr Layton on, Norman Tindale), who lived at the north of Kurtjar country below the Staaten River, had sites on Staaten lagoons that had Kurtjar names. As the Kwanthara were “dying off”, the Kurtjar moved into their country up to the Staaten River, and another tribe, the Koko Bera, moved into it north of that river. Rolly Gilbert described Kwanthara and Kurtjar country going towards the Staaten River as “mixed up”. He said, recounting a story that he had been told, that the white settlers were “knocking us back” and that the Kurtjar had to hide in swamps but that “white were bought off by giving them Ab[original] girls as ‘wives’”. Dr Palmer thought that the available material left unclear what process occurred by which the Kurtjar came to occupy Kwanthara country, while Dr Brunton thought the process was consistent, at least, with succession.

193    Dr Martin concluded in his first report that the Kurtjar had succeeded to country in the south-east and north-east of the claim area that previously had been associated with Walangama, Rib and Kunjen (Ogh Undjan) through operation of their continuing system of laws and customs.

194    In his second report, Dr Martin described indicia of succession as including territorial proximity, shared traditional law and custom or pre-existing systemic grounds for territorial amalgamation such as:

    a categorical system to connect the extinct and incoming groups through kinship, marriage and historical association that confers ‘secondary rights’. Secondary rights can arise because of facts such as the place of a person’s conception, birth, death and burial as well as ritual ties. Secondary rights can transform gradually over decades into primary rights;

    examples of succession ‘events’;

    the incoming group assimilates the new area into its existing cultural landscape, which can involve considerable simplification;

    the contemporary First Nations’ people (i.e. descendants of the original incoming group) not identifying with historical labels (i.e. of the extinct group) so that there is an absence of dispute relating to the succession (of the incoming group).

195    Dr Martin opined there would be licit succession where the contemporaneous First Nations people view the present situation as resulting from the continuation of traditional laws and customs or as not involving anything having taken place, in the sense that they understand that the land and waters had always been the country of what is, in reality, the incoming group. This is the concept that Dr Martin and Dr Brunton described with the controversial label “strategic” or “cultural amnesia” to which I referred at [63]–[64].

196    Dr Palmer did not agree that the incoming group immediately “forgot” the extinct one. Rather, referring to Lauriston Sharp’s observation that the incoming group retained knowledge of the past for quite a long time, he said this involved the incoming group, at the outset, being open to the fact that the extinct group had died and that they were the right totemic group to succeed. However, over time and generations, as a feature of oral traditions and in particular contexts, this knowledge will come to be “forgotten”. Both Dr Martin and Dr Palmer emphasised that succession occurred between land holding, as distinct from language groups, who maintain spiritual correspondence with the area. They said, and I accept, that this distinction is fundamental and the two types of group should not be confused.

197    In his third report, which Dr Palmer prepared after the on country phase of the trial, he referred to Warren Beasley’s statement to Dr Martin set out at [62] above. Dr Palmer noted that in his second report he had criticised Dr Martin’s analysis of the data by which he (Dr Martin) had reasoned that the Kurtjar had succeeded to the eastern part of the claim area, including Miranda Downs. Dr Palmer considered that, when Dr Martin had written his reports, the data did not reveal a process that sufficed for succession. Dr Palmer characterised succession as a process in which the incoming group asserted rights to the country of the extinct group in the eastern part of the claim area and exhibited knowledge of the totemic geography necessary both to manage its spirituality and as a prerequisite of land ownership.

198    However, by the time of his third report, Dr Palmer considered that the ethnographic materials, especially the video evidence played at the hearing, that included videos taken on Miranda Downs, had remedied substantially the deficiencies in the data available to Dr Martin in respect of succession. Dr Palmer explained that the witnesses’ evidence supported his revised opinion that the Kurtjar people believed that spiritual beings that they comprehended, such as the chacharr, water spirits (scil: water gins), red legged devils and spirits of deceased Kurtjar ancestors, inhabited particular places within the southern portions of the claim area, including Miranda Downs, and that they had the ability to manage the spirituality of those portions, including Miranda Downs. He opined that the Kurtjar believed that they hold totemic affiliations which link them in a general sense to the country of the claim area, including in Miranda Downs and that the spirits of their ancestors now manifest as totemic animals or birds. He gave, as examples, in that report and in his oral evidence, Joey Rainbow’s descriptions of how his totem of the saltwater albino crocodile and his grandfather’s totem of the barramundi connected the individual to all fresh and saltwater manifestations of that totem and to all of Kurtjar country. Dr Palmer said that, as Joey Rainbow had put it, the totem or dreaming was not about a place but “it’s about the fish” (see [75]). Dr Palmer understood this as signifying that “he has that intimate relationship, spiritual relationship with the fish within the countryside”. He also referred to Harold Banjo’s evidence of his totemic relationship with barramundi ([94]) and Fred Pascoe’s and his brothers’ with black cockatoos ([28] above).

199    Dr Palmer opined that the Kurtjar consider that they have a spiritual correspondence with the southern and eastern portions (including Miranda Downs) of the claim area that “equip[s] them to enter the country, use it and manage its resources, both physical and spiritual”. He referred to the lack of recollection that Kurtjar witnesses at the trial and informants to Dr Martin had about any prior group occupying the southern and eastern portions of the claim areas as an indication that the process of succession was near to completion.

200    Dr Palmer also referred to the evidence of Garry Owens, who as a Tagalaka, recognised that Miranda Downs was Kurtjar country and that he was a stranger on it who could not manage its spiritual forces (see [118]–[125] above). He also noted Mr Owens’ evidence that he had heard of the Walangama from his old people and that they were a mixture of Kurtjar and Tagalaka and shared many or similar laws and customs. Dr Palmer acknowledged that there was considerable uncertainty in Mr Owens’ account but opined that it reflected Mr Owens’ understanding that the Walangama once had occupied land and waters between Kurtjar and Tagalaka country.

201    In Dr Palmer’s opinion, the absence of surviving members of the Walangama and Mr Owens’ evidence supported an inference that the Kurtjar had succeeded to their country and shared their laws and customs. He considered that their own traditional laws and customs enabled the Kurtjar “to leverage their knowledge of the supernatural world to assert the command of rights in that vacated country”.

202    Both Dr Martin and Dr Palmer agreed that the process of succession of the Kurtjar people to the land and waters in the south, south-east and east of the claim area of the former occupants (the Walangama and Rib) was near completion. That was because the First Nations’ peoples still had some recollection of, at least, the Walagama or another group having once occupied those areas. In Dr Palmer’s view, the actual event of succession (as opposed to the process by which it occurred) was when the last survivor of the extinct group died, but that the process to complete the succession might take several generations. The process would continue until the succeeding group’s, and their surviving neighbours’, knowledge and oral history no longer memorialised or referred to the extinct group, so that all of them conceived of the succeeding group as, in effect, having always occupied the relevant land and waters as their country. I accept that evidence.

3.6    Licit succession

203    Dr Brunton’s different view as to what constituted succession was “the process of transmission, which would require something akin to title deeds or ritual estate” moving so that the incoming group had knowledge of the “totemic geography of a particular place”. He said that he intended to use the expression “title deeds” as equivalent to the ritual estate comprising the dreaming stories, songs, dances and physical paraphernalia relating to that estate.

204    In the first joint expert report, Dr Brunton postulated that the process of licit (i.e. non-expropriatory) succession or non-opportunistic annexation under traditional laws and customs would only have been likely to have occurred at the clan estate level before sovereignty. He considered that there needed to be a distinct process under which the successor clan received from the diminishing or extinct original occupants a transfer of sacra, stories and the like. He said that there was no evidence of such a transfer to the Kurtjar of those incidents of the ritual estate in Miranda Downs so that, regardless of their belief as to their ability to manage its spiritual potencies, they could not have succeeded to Miranda Downs in accordance with traditional laws and customs. Rather, Dr Brunton thought that they were asserting the possession of native title rights and interests on the basis of their historical association with pastoral stations to the east of the area covered in the Black and Gilbert map. In other words, he said that what had taken place did “not demonstrate that licit succession has occurred, as against attempts to retrospectively legitimate some form of encroachment onto vacant country and its annexation”.

205    In my opinion, Dr Brunton’s insistence on there being some more precise or defined process for licit succession did not account for the recognition by both the Kurtjar themselves and strangers to, or non-members of, the Kurtjar people that the Kurtjar could protect a stranger or non-member from the spiritual forces on, relevantly, Miranda Downs.

206    Both Dr Martin and Dr Palmer disagreed with the formalistic approach that Dr Brunton postulated was necessary to achieve licit succession. Dr Palmer said that there was no requirement for any formal agreement, although there have been instances where this had occurred. He said that in some historical contexts, such as cases of extreme frontier violence, there may not have been time or opportunity for groups to engage in formalities before one group became extinct. He also made the important point that in anthropology, the absence of data does not entail that the absent event or subject did not occur or exist in the past as opposed to the conclusion that evidence of it has not been collected or observed. In his opinion, the fundamental question was whether the incoming group “leveraged their relationship to country which was not theirs through a process of succession that can be understood to accord with the traditional laws and customs of their society”. Dr Martin expressed a similar view. As Dr Palmer and Dr Martin observed, the belief in the chacharr as a spiritual being, and its association with water, was a very powerful ideology that underpinned the Kurtjar’s belief system. He described it as an imbuement of the landscape, capable of both remaining in place where the water hole had dried out, or moving to another place where there was water.

207    In my opinion, Dr Brunton’s ultimate reason, in the concurrent evidence, for disagreeing with the views of Dr Martin and Dr Palmer about the process of succession of the Kurtjar people to the extinct group or groups in Miranda Downs was based on his unwillingness to depart from his earlier position before the on country hearing. This was despite the more detailed evidence given on country and his obvious error in placing excessive reliance on Rolly Gilbert’s views and not giving consideration and weight to the other contemporaneous and later information of knowledgeable Kurtjar informants. He was grudgingly prepared to concede that the Kurtjar’s belief that they could manage the spiritual potencies of Miranda Downs was “partly consistent” with licit succession. But, he said, this fell short of his requirement for the Kurtjar to have site names in their language for places and for more than the presence of the chacharr. He said that “the only spiritual dangers that would seem to be on Miranda Downs are the chacharr” and burial sites. But, he questioned how people knew about the presence of those two dangers and said that the burial sites were “fortuitous results of historical circumstance” (i.e. close to where the deceased had died when working there), not “a traditional location were people would actually be buried”. After I asked him to comment on the Kurtjar’s knowledge of the presence of the water gin at Bayswater, he responded that it was “consistent” but he found it “perhaps rather strange” because it did not have an Aboriginal name. He also overlooked the evidence about red legged devils given by Merna Beasley [84] and Jenice Bee [98].

208    I prefer the evidence of Dr Martin and Dr Palmer that licit succession is manifested when the incoming group, that is a part of a larger overall society of which the extinct group was also part, is able to deal with the spirituality of the countryside, including its actual or postulated spiritual dangers, according to traditional law and custom. In my opinion, the reasons that each of Dr Martin and Dr Palmer gave for that conclusion explained the interrelationship necessary for the process of succession to occur based on the data available to an anthropologist performing such an evaluation. I formed the opinion that Dr Brunton was seeking to find reasons to justify his view that succession had to follow a prescriptive set of rules that had no evident relationship to lived experience. For example, Dr Brunton asserted that the Kurtjar’s ability, under the traditional laws and customs that operate in the claim area, to control the spiritual forces acknowledged to be present in the country, was “a possible element but I think the ritual estate is a much broader concept”. I reject that evidence. Dr Palmer, with Dr Martin in agreement, retorted that this ability is fundamental because it reflects the belief that the person has an intimate correspondence with the country and has the knowledge and skill to deal with those aspects that may be unpredictable or dangerous. Dr Palmer explained that fundamental to Aboriginal spirituality and belief is that country “is not even in its temperament”, that there are parts that are quite dangerous and:

… that’s why it’s important for the country to know the persons who get these references to smelling the arms, you know, the sweat of a person or having knowledge of their saliva.  … it’s a deeply personal kind of relationship which goes to the relationship between a person as a hunter and gatherer – we go back to its basics – who needs to be able to exploit and deal with country in terms of gaining a livelihood, but also that it is defensible against others, and this forms a very effective mechanism for doing that according to the normative system.

(emphasis added)

209    Dr Brunton was not aware of any other First Nations group than the Kurtjar who claimed to have any interests in Miranda Downs. Yet he baulked at accepting, however truthful Garry Owens’ account was of Barney Rapson warming him up about 40 years earlier, when he first came to Miranda Downs, that this ritual reflected that the Kurtjar’s claim had historical depth. Dr Brunton was prepared only to say that “if this occurred at the time, then one has to make the inference that” both Mr Owens and Barney Rapson believed that they were on Kurtjar land. I do not accept that evidence. First, as Dr Brunton went on to say, he was influenced, in his view, by the About Kurtjar Land document which he thought Barney Rapson may have signed. I asked him:

HIS HONOUR: Well, if we assume that in the mid-1970s or late 1970s Mr Rapson took this man, Mr Owens, onto Miranda Downs and warmed him up, are you telling me you think Mr Rapson could be mistaken that he was on Kurtijar land at that time as a man who was by then in his 60s? - - - It’s possible, your Honour.  I obviously can’t – can’t go any view.  I’m just saying I don’t know, it’s possible, but I’m simply saying there’s that tension between that statement that Mr Owens made and the – the documents from that time

(emphasis added)

210    I accept Garry Owens’ evidence. Barney Rapson would not have warmed Mr Owens up on Miranda Downs in the 1970s if he were in any doubt that that act would be effectual to control or manage the effects of the spiritual forces on that station in order to protect Mr Owens from danger. It makes no sense that both men would engage in a significant traditional custom that had the purpose of protecting Mr Owens as a stranger to Barney Rapson’s country, if either was in doubt about the inherent ability of Mr Rapson to provide that protection.

211    Secondly, Dr Brunton fixated on Dr Black’s interpretation of what his chosen informants had told him, irrespective of Dr Layton’s views, and those other informants whom Dr Black had recorded that Dr Martin summarised ([173] above) and the reality of Barney Rapson’s contemporaneous conduct. Dr Brunton acknowledged that Dr Layton was convinced that Rolly Gilbert appeared to be determining the boundaries of Kurtjar country for political purposes by reference to the boundaries of Delta Downs. Yet Dr Brunton appeared to regard Rolly Gilbert’s information as conveyed to Dr Black in that possible context as substantially more reliable than Barney Rapson solemnly warming Mr Owens up, regardless of the spiritual consequences for both of them if that customary act were performed without Miranda Downs then being Kurtjar country or country whose spiritual potencies Mr Rapson could then manage in accordance with the country’s traditional law and custom.

3.7    Consideration

212    I have considered Stanbroke’s submissions in assessing the expert evidence and making findings above about that evidence. I have not found Dr Brunton’s evidence persuasive generally, or where it conflicts with Dr Martin’s or Dr Palmer’s in particular. I have rejected the need for there to be a “succession event” (see [203], [208]). I have found that the comparative lack of evidence of sites, and the Kurtjar’s knowledge of sites at which pastoral activity occurred, is not a reason, of itself or in combination with Stanbroke’s other submissions, to reject the claim (see [218]–[223] below).

213    As explained above, Gleeson CJ, Gummow and Hayne JJ held in Yorta Yorta 214 CLR at 443–444 [42]–[44] that there is a distinction between the creation of native title rights and interests after sovereignty and their transmission in accordance with traditional law and custom. They held that only the latter mechanism (i.e. transmission) can be recognised as the means by which native title can be possessed by a different group than held it at sovereignty (see [146]–[150] above).

214    When it is necessary to consider the issue of if, and how, transmission of native title may have occurred from the extinct to the incoming group, it will often be the case that little will be known of the extinct group’s laws and customs. However, here, the evidence reveals that both the Walangama and Rib mixed with the Kurtjar and must have been aware that, as their members depleted, the Kurtjar were filling the void. Although Dr Brunton advanced a theory that the Kurtjar had assumed their role over Miranda Downs by “opportunistic annexation”, that theory did not engage with the history of the Kurtjar’s unopposed conduct while there were still Rib and Walangama people alive whose spiritual duty to their traditional land and waters would have been to oppose any such illicit annexation.

215    In my opinion, the inference that should be drawn is that the diminishing members of each of the Walangama and Rib peoples were aware that, first, they were losing the capacity to speak and care for their respective country and, in accordance with their traditional laws and customs there had to be a transmission by succession of their native title rights and interests to others, in the same overarching society who were also bound by the same laws and customs, to whom the country and the management of its spiritual potencies should be given. All the experts agreed that there is a general acceptance among anthropologists that all, or virtually all, Aboriginal groups would have had such a process that ensured when a group became (or was becoming) extinct, its land and waters, including the rights and concomitant ability to manage its spiritual potencies, could be transmitted. This is reflected in what Lauriston Sharp wrote, that Dr Martin and Dr Palmer cited:

If the human organisation of the clan becomes extinct, the other elements of the totemic complex of the clan may continue in existence for a generation or so, the relationship of the land to the ancestors, totems, rights and other totemic traits being consciously retained in the native memory.  Another clan usually assumes control of the domain of the extinct clan and that the control gradually becomes fully fledged ownership.

(emphasis added)

216    As Dr Palmer observed, Dr Sharp created a distinction, in that passage, between the “human organisation” of a clan and its other elements. Dr Palmer said that Dr Sharp there recognised that the human beings who constituted the clan were only a part of its total membership, the balance being comprised of “some kind of spiritual totemic bodies which made up the fundamental component of those [Aboriginal] people who owned the particular… area concerned”. Dr Palmer then reasoned that, from an anthropological perspective, the question of succession relates to the spiritual relationship between a group and the country reflected in traditional law and custom. This meant that whether there would be succession from an extinct to any incoming group needed to be assessed having regard to the proximity of their lands, similarities between their laws and customs and some degree of knowledge of the dreamings “as they perhaps traversed the land”. Dr Palmer opined in his second report that customary Aboriginal belief is essentially totemic. Such a belief is that an individual is both imbued with the spirit of his or her country and a living manifestation of that spirit. He considered that Dr W.E.H Stanner, an anthropologist who had written extensively on Aboriginal religion, captured this concept in the following passage:

... the corporeal and spiritual elements were believed to cohere so indissolubly that, as a necessary condition of the continuity of life, each person was with or of a locality, or a locality with or of him or her. The conceptions of person and clan or similar groups thus included land or territory as intrinsic to their definition.

… for each and every person of a clan or similar group there was unity of title, of possession, of interest and of time (except that the unity of time extended to the unborn and the dead, as well as the living).

217    In my opinion, the anthropological evidence established that the critical test for whether succession has occurred is whether the incoming group is confident in its ability to manage the spiritual potencies of the particular area of land and waters. As Dr Palmer noted, in anthropology, the assertion of rights in an area is based on myth; but myth is hard to quantify. Thus, the prescription of some check list of criteria to establish that licit succession has occurred (such as I think was Dr Brunton’s general approach) may involve an inapposite concentration on form over substance.

218    Warren Beasley and the other Kurtjar witnesses’ evidence gave significant detail as to their knowledge about sites and spiritual beings on Delta Downs and areas to the west of Miranda Downs. Stanbroke submitted that this contrasted with the lesser detail of their evidence about sites and spiritual beings on Miranda Downs and that their knowledge of spiritual beings was limited to the presence of mighath, particularly at stockmens’ camp sites, and chacharr and water gin at waterholes. However, as I noted above in dealing with Dr Brunton’s evidence, on which Stanbroke relied, that submission overlooked the evidence of Merna Beasley and Jenice Bee about the presence of red legged devils on Miranda Downs (see [84], [98]).

219    I reject Stanbroke’s submission based on Dr Brunton’s evidence that it would be rare for claimants to believe that “country was theirs but thought they could not manage its dangers”. The evidence went much beyond the Kurtjar merely “thinking” that they could manage the spiritual potencies of Miranda Downs. I was impressed by the confidence of the Kurtjar witnesses’ ability to deal with the spiritual dangers that Miranda Downs held, which reflected the essentially spiritual relationship between Aboriginal peoples and their country. Indeed, Dr Palmer changed his expert opinion as a result of his seeing and hearing the on country evidence that elaborated and enriched what appeared to be the somewhat dryer written evidence. That richness developed as the various witnesses testified orally about their knowledge and experience of Miranda Downs. I formed the opinion that persons such as Fred Pascoe, Warren Beasley and Joey Rainbow, as elders and knowledgeable Kurtjar persons, could only be in a position to manage the spiritual forces on Miranda Downs if the Kurtjar, acting in conformity with their traditional laws and customs, were the guardians of and had responsibility for those lands and waters at the present time. In addition, the statements of the elders to which those witnesses referred are consistent with other statements made in 1975 and 1977 as to the extent of Kurtjar country by the then elders who were Dr Black’s and Dr Layton’s informants that Dr Martin summarised in the passage from his first supplementary report that I have set out at [173] above.

220    Dr Palmer made the telling point that the incoming group may not be able to manage the new area without difficulty, including because in the circumstances there is missing or attenuated knowledge, such as of what sites the extinct group had identified as having spiritual significance. Thus, the incoming group must believe that they can exercise rights and interests in the new area because the source of those rights and interests is in the traditional law and customs that they shared with the extinct group. That factor enables them to be confident in their ability to manage the spiritual potencies of that country, despite any deficiency in their knowledge about the new area. As Dr Palmer put it, the most important aspect is the incoming group’s feeling or belief that “we are able to exercise those rights because we are confident in the country”.

221    Given the displacement, and sometimes extermination, caused by European settlers forcing the traditional inhabitants off their land and waters, there often will be an absence of contemporary detailed knowledge about particular areas, such as dreaming, ritual, increase or burial sites, that an incoming group will not possess. That is why it is critical that there be a sufficient correspondence between the traditional laws and customs of the extinct and incoming groups, as members of a broader overarching society to which both belonged, from which the incoming group derives the ability (or their belief in the ability) to manage the spiritual potencies of the country in accordance with those laws and customs. As the experts agreed, such spiritual correspondence is a critical component of succession (see [164] above). And, the spiritual relationship between First Nations people and particular land and waters is of the essence of native title: Ward 213 CLR at 64–65 [14] (see [161] above).

222    This concept of confidence in an Aboriginal people’s ability to manage the spiritual forces of an area is a fundamental aspect of their traditional laws and customs. That is because of the spiritual essence underlying the relationship between Aboriginal peoples and their country. In my opinion, a powerful manifestation of that was Barney Rapson warming up Garry Owens when the Tagalaka man first came to Miranda Downs. Both men believed that a stranger to another people’s country would be inevitably in grave danger from the spirits unless the stranger had permission (and any appropriate warnings about dangerous places) from persons whose country it was. That is because of their belief that the ability to manage the spiritual potencies resides in those whose country it is.

223    The evidence was reinforced by what I have found other witnesses experienced of the spiritual potencies when they went to Miranda Downs with their elders or on their own visits (such as Fred Pascoe [33], Warren Beasley [43], [44], [48], [49], [53], [56], [57], Merna Beasley [84], Bernie Rapson [86]–[87], Jenice Bee [96], [98], Mildred Burns [101], [102], Harry Daphne [103], and Fred and Mervyn Edwards [106], [109], [111]). This included evidence about the water gin or fairy at Bayswater ([56]–[57]), red legged devils in forested areas ([84], [98]) and Harold Banjo’s conception site at Kitty’s Hole ([94]). I reject Stanbroke’s submission that the fact that no on country evidence was given on Miranda Downs itself was “extraordinary”. There was cogent video evidence taken at sites on Miranda Downs. The western boundary of Miranda Downs station was a significant distance to the east of Delta Downs where the Court sat, and numerous sites on Miranda Downs referred to in the evidence were well towards its eastern parts. The video evidence of more remote sites and in person witness evidence was more than sufficient.

224    The Kurtjar submitted that the Walangama and Rib occupied eastern parts of the claim area in the locale of Miranda Downs at sovereignty and observed the same normative traditional laws and customs then as did the Kurtjar so that all three groups were part of one overarching society. However, it is difficult to assess whether the Walangama and or Rib were, as the Kurtjar argued, part of the same society as the Kurtjar, or they were a separate society. That is because, apart from language similarities and the relatively easy way in which the three groups mixed and intermarried, there is a paucity of data about the laws and customs of the Rib and Walangama.

225    Although there is no express evidence of what laws and customs the Walangama or Rib had, those laws and customs are relevantly manifest in the process by which, while they were becoming extinct, they transmitted their native title rights and interests in Miranda Downs to the Kurtjar. The presence of some shared traditional laws and customs between the Walangama, Rib and Kurtjar allowed the Kurtjar, without opposition, to assume responsibility for the spiritual management, of the countries of the others. That suggests that they were all groups within the one overarching society that has continued to exist since before sovereignty to the present day. I infer that this was the case for the following reasons.

226    Aboriginal people’s belief systems and their laws and customs place particular significance on the need for strangers to have permission to enter and engage in activity on a particular people’s country. This is because of the spiritual potencies and dangers posed for unauthorised strangers on the land and waters. In this context, it is unlikely that, as the Walangama and Rib were becoming extinct, the Kurtjar would, or could, have entered the others’ countries safely unless they were all members of an overarching society.

227    This follows from the fact that not only must the Walangama and Rib have regarded the Kurtjar, under each of their respective normative traditional laws and customs, as people to whom the management of the spiritual potencies of their countries could be entrusted, but the Kurtjar too must have regarded themselves as capable of doing so in accordance with their normative laws and customs. I am comfortably satisfied that since well before 1975 the process of transmission was underway, as the quotations from Dr Black’s informants set out at [173] show. I do not think it is necessary to decide whether that process is accurately described as “succession” or “transmission”, in the sense that Gleeson CJ, Gummow and Hayne JJ explained in Yorta Yorta 214 CLR at 443–444 [42]–[44].

228    No other First Nations’ people oppose or challenge the claim that the Kurtjar now make. As I have found, the Kurtjar are confident in their ability to manage the spiritual potencies of the land and waters of Miranda Downs and the balance of the claim area. That situation has been evident since at least before the mid-1970s when Dr Black first interacted with Kurtjar individuals and some told him then that Miranda Downs was part of Kurtjar country. Those statements were mirrored in the evidence of what their elders had told witnesses in this proceeding at around the same period.

229    I am satisfied that the native title rights and interests of the Walangama and Rib peoples in the claim area, including Miranda Downs, have been transmitted to the Kurtjar people in accordance with the normative pre-sovereignty traditional laws acknowledged and customs observed by each of those three groups and, until the former two became extinct, that continue to be reflected in the laws and customs of the Kurtjar people.

230    Although it is not necessary to my conclusion, I would have found this whether or not that situation came about because the Kurtjar were part of the same overarching society and, since pre-sovereignty times, have shared the same normative laws and customs (as I have found), or because the process that I have described above was what the anthropologists term “succession”.

3.8    Conclusion

231    For the reasons above, I am satisfied that Miranda Downs is Kurtjar country in which the Kurtjar people possess group rights and interests under both their traditional laws and customs and those of the wider society of which they form part (including those transmitted from the Walangama and Rib peoples), that by those laws and customs they have a connection with its land and waters and that the common law recognises those rights and interests (including the right to take resources as I have determined later in these reasons). Accordingly, the Kurtjar people have native title rights and interests in Miranda Downs within the meaning of s 223 of the Act.

4    The apical ancestor issue

232    During the course of the concurrent expert evidence, the parties narrowed the number of disputed apical ancestors, from whom those comprising the Kurtjar people are descended, to the following eight persons in five categories:

233    Dr Martin compiled the initial versions of genealogies in his first report based on interviews with hundreds of Kurtjar and other knowledgeable people at Normanton, Mt Isa, Burketown and Doomadgee over many years, cross-checked the data extensively with living Kurtjar and other Aboriginal people and had regard to secondary sources, including birth and death certificates, police records, inquest reports, records of persons working at various stations, family history documents, funeral notices and funeral service documents, field notes and writings of Drs Sharp, Tindale, Black, Layton and others.

234    The State contended that there was no cogent evidence that in the second category of Billy and Lucy, either was an apical ancestor. But, the State accepted that the evidence established that their daughter, Alice Reid, was, or identified and was accepted contemporaneously and later as a Kurtjar person. The Kurtjar agreed to amend the description of Billy and Lucy simply to “Alice Reid, daughter of Lucy”.

235    The State submitted that Dr Martin had not identified any specific named person who identified how (3) Lucy or (4) Judy were Kurtjar. The State argued that because the evidence in support of (3) Lucy and (4) Judy was so vague, the mere fact that the authorisation meeting under s 251A of the Act that approved filing of the current, further amended Form 1 originating application that contained their names was insufficient to prove, as a fact, that either was an apical ancestor. Stanbroke argued that there was insufficient evidence to justify any of those eight being named as an apical ancestor.

4.1    Consideration

236    The evaluation of the evidentiary worth of the contested genealogical material prepared by the experts, in particular Dr Martin, to support a conclusion that a person should be included as an apical ancestor is complicated by the absence of historical records. However, this is an age old problem that the Evidence Act and the common law recognise must be approached in a realistic and pragmatic way. First, s 73(1) of the Evidence Act provides that the hearsay rule does not apply to evidence of reputation concerning family history or a family relationship, a person’s age or whether a person was married at a particular, or any, time, or two people cohabitating at a particular time were married. Secondly, as I noted above at [18], s 74(1) permits a party to lead evidence of reputation concerning the existence, nature or extent of a public or general right and s 140(2) deals with the cogency of proof on the balance of probabilities. I also explained at [17]–[24] the applicable common law principles to the proof of matters that occurred before living memory.

237    Here, the proof of genealogies of families at times before the State’s authorities recorded details of Aboriginal births, deaths and marriages necessarily must be by oral evidence and proved in the same way as custom or, as ss 73(1) and 74(1) of the Evidence Act envisage, by reputation.

238    The Native Title Act does not prescribe how the “common law holders” of native title, to whom s 56 applies, can be ascertained. Rather, s 56 gives those persons the right to hold any native title as determined by the Court in their own names or to have it held on trust. As Wilcox, Sackville and Merkel JJ noted in De Rose v South Australia (2003) 133 FCR 325 at 388 [200]–[201], the Act does not require that the common law holders be biologically linked to the persons who, at sovereignty, held native title rights in the land and waters the subject of the claim. They held that there must be a sufficient link under the traditional laws and customs between the claimant group and the members of the society on whose traditional laws and customs they rely to establish their claim to native title.

239    The parties agreed that effective sovereignty in the claim area occurred when European settlement there began in the mid to late 1860s. Normanton was established by 1868. As Dr Martin said, the impact of that process on the people in the claim area was immediate and severe, accomplished by considerable violence as Europeans asserted control over that area. The experts agreed that the closer a contemporaneous record was to the time of effective sovereignty, which located a particular individual at a place (such as a pastoral station), the more likely it was that he or she was born there and was a member of the group that held native title rights and interests before the arrival of the Europeans.

240    As I have noted earlier, the oral history of the witnesses and other informants of anthropologists or linguists, like Dr Black, needs to be assessed with caution, having regard to the frailty of human memory. However, as both Dr Martin and Dr Palmer observed, where, as here, many of the witnesses and other informants as to genealogies had been living in close proximity and association with each other on the Normanton reserve, their knowledge of the various family lines is likely to be stronger and more reliable than in other circumstances. Dr Martin said that many of the claim group families and other Aboriginal groups had stayed living together on stations and subsequently at the Normanton reserve and there had been intermarriages from which individuals learnt about various family genealogies and histories. Dr Martin said that this resulted in people knowing each other and their respective family histories “because they’ve had multiple generations of living next door to each other or on the Normanton reserve in very close association with each other”.

241    In assessing the disputed genealogical evidence, I have accepted the experts’ view that the closer to effective sovereignty a record (or recollection) of the association of an individual with a place is, the greater the likelihood that he or she was a member of the group with whose traditional land or waters the record or recollection associated him or her. Thus, by 1880, the dislocation from their country wreaked by Europeans on Aboriginal families and individuals would tend to make it less certain or likely, as opposed to fortuitous, that a person was on his or her group’s traditional land or waters.

242    In my opinion, the evidence establishes that the traditional laws and customs of the Kurtjar allowed for adoption into the group, at least at the time of the generation of the apical ancestor of the Gilbert family, Billy Sailor (whose date of birth and location is not known). That happened when Billy Sailor and his wife, Ivy, adopted Ned Bowyang and also when Harold Banjo’s father was adopted into the Kurtjar people (see [92] above). The practice of adoption is likely to have been accepted as part of the pre-existing traditional Kurtjar laws and customs dating to before sovereignty, given the recognition of such a custom from early memory after European settlement: Hammerton 24 WR at 604; Gumana 141 FLR at 510–511 [194]–[201] (see [17]–[24] above).