FEDERAL COURT OF AUSTRALIA
Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland (No 5) [2023] FCA 135
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The questions reserved for consideration be answered as follows:
Question (a)
(a) But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, lands and waters of the claim area?
Answer
Yes, native title exists in all of the claim area.
Question (b)(i)
(b) In relation to that part of the claim area where the answer to (a) above is in the affirmative:
(i) who are the persons, or each group of persons, holding the common or group rights comprising the native title?
Answer
The persons who hold the native title referred to in the answer to question (a) are the group members of the Badulgal and Mualgal Peoples, such group membership being determined in accordance with their traditional laws and customs.
Question (b)(ii)
(b) In relation to that part of the claim area where the answer to (a) above is in the affirmative:
…
(ii) what is the nature and extent of the native title rights and interests?
Answer
The Badulgal and Mualgal Peoples hold a single native title over the claim area, in the same way as they do over the islands in the determination in Nona and Manas v State of Queensland [2006] FCA 412.
The native title rights and interests are exclusive in nature.
2. The proceeding be listed for case management hearing in the week commencing 3 April 2023, at a date and time to be fixed in consultation with the parties.
3. On or before 4.00 pm (AEDT) two (2) working days before the case management hearing, the parties are to propose orders to give effect to the Court’s reasons for judgment dated 27 February 2023, including any proposed order relating to how the native title rights and interests in the claim area should be described in any determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The Court’s orders and reasons arise from separate questions stated by the Court about two islands in the Western Torres Strait, Warral and Ului. There is presently a claim under s 61 of the Native Title Act 1993 (Cth) over these islands, on behalf of three groups. The claim is made on the basis that the native title to those islands is a shared title between the three groups, either as members of one “society” or (alternatively) as members of two “societies” which have under their customary laws shared the islands, since before colonisation. Those groups are the Badulgal, Mualgal and Kaurareg Peoples. In these reasons, I will describe this as the shared ownership claim.
2 Since March 2020 there has been a challenge to the shared ownership claim, by five Badulgal men. They were joined as respondents to the shared ownership claim. Mediation has not been able to resolve the different views.
3 What has happened in this proceeding in some ways reflects the tragedy of having to recognise native title by fitting it into the straitjacket of Anglo-Australian law as reflected in the NTA, and the realities for First Nations peoples today in finding a way through that system. Eliziah Wasaga, a Kaurareg man, summed up in his evidence the long struggle and the tensions imposed by the native title system:
And so much has changed over the years that laws have changed. And, you know, when Mabo came into the sea it put a lot of effect on everybody. And it was only a case that was for, you know, Mer Island. But then that ricocheted globally. So, by giving power back to indigenous people, it was like a threat.
But all we wanted to do was just to manage our country and have rights to practise our – and exercise our cultural rights, you know? So – but also an identity factor because we’d identify ourselves as the Aboriginal people of this region and, you know, it’s been such a long, you know, struggle, because somebody gets into power and the policy changes. We’re governed by policy. It’s always hard. So the more we talk about policy, policy, our law is starting to, you know, get distance. And it’s not fair on our future generations. So we need to be, you know – we need to get all parties together. Let’s talk. And that’s proper way.
4 I have said this at the start of the reasons to emphasise that the Court is conscious of the tensions, and the apparent unfairness, the native title system can impose on First Nations peoples. The legal transformation wrought by Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 set Australia on a path towards recognising that land and waters on this continent have always belonged to First Nations peoples. The path is far from complete. And it can be torturous.
5 As all parties to the separate question proceeding acknowledged, the Court must decide not only whether the applicant has proven its case of shared ownership, but, if not, must also decide what the evidence establishes on the balance of probabilities is the correct answer to the separate questions about who has native title in Warral and Ului. If the Court finds the applicant has not discharged its burden of proof on the shared ownership claim, that does not mean the Court must dismiss the native title application. All parties accept that the Court should decide whether it is more likely than not that one or more of Badulgal, Mualgal or Kaurareg hold native title over Warral and Ului. All parties accept that the islands belong to one or more of these groups, and not to anyone else. The questions the Court must answer have been structured to allow for this possibility.
6 That said, the purpose of these separate questions is no wider than Warral and Ului. Given the state of claims and determinations in the Torres Strait and Northern Cape York region under the NTA, especially in the Western Torres Strait, I consider it is important the Court does not go further in its findings than is necessary to answer the questions posed and resolve the dispute over Warral and Ului. While some of the findings in these reasons may affect, or be seen to affect, other claims yet to be resolved, the Court’s findings are based on the evidence before it and the submissions made, all of which have been directed at what are narrower and different issues than those which may arise in some of the other claims.
7 The claim area tracks the land masses of Warral and Ului closely, but includes small islets along the north-western coast of Ului, as well as some beaches, and perhaps parts of sandbanks and reefs adjacent to each of those islands, but only as far as the mean high-water mark at spring time. Thus, it is treated as principally a claim to land, and not to the sea, nor to reefs below the mean high-water mark at spring time, a matter which is important to remember when reading the Court’s reasoning. Maps of Warral and Ului showing the claim area are at attachment 1 and attachment 2 to these reasons, respectively. These maps were tendered as agreed maps by the parties.
8 Native title in the sea around Warral and Ului – that is, areas below the mean high water mark at spring tide – has not been recognised yet under the NTA. Native title in the sea has been recognised in a significant area north of the claim area, under what was called the Torres Strait sea claim: Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth [2013] HCA 33; 250 CLR 209; Akiba on behalf of the Torres Strait Regional Seas Claim Group v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1. The separation of the Torres Strait sea claim, which occurred during the trial of Akiba, into a Part A and a Part B claim, assumes some significance in this proceeding.
9 What was described as the Part B sea claim, and includes the sea around Warral and Ului, and the sea between those islands and Badu and Mua, and between Warral and Ului and the Kaurareg home islands, has not been determined. The Part B sea claim, and a number of other unresolved and partly overlapping sea claims, and one terrestrial claim, are currently being managed together with this proceeding (see Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983 at [11]).
10 On 30 November 2022, native title was recognised by this Court in a large area of sea country mostly to the east of the current claim area, including large parts of the Part B sea claim. However, the sea around Warral and Ului, and indeed all of the sea in the western part of the Part B sea claim, was excluded from this determination, principally because of this current proceeding: see David on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2022] FCA 1430.
11 The first native title claim over Warral and Ului was filed on 4 March 2002 and eventually became this proceeding, QUD9/2019. Initially, the claim was made only on behalf of the Badulgal People. The Akiba claim had been filed in November 2001. In March 2002 a number of the home island and shared islands claims in the Western Torres Strait were filed within a few days of each other. On 28 November 2003, three Kaurareg respondents were joined to the (then) Badulgal claim over Warral and Ului. That joinder was on the basis that Kaurareg People asserted native title in the islands. This was consistent with the claims made by the Kaurareg People in Akiba to the sea extending north from their home islands and into the area of the sea between Warral and Ului, and Badu and Mua. No Mualgal people had sought to be joined as respondents at this point, but their assertion of interests in the islands was well understood in the region. Over the next decade or so, the home and shared islands claims were resolved, and the Akiba claim was litigated. The claim over Warral and Ului was not resolved.
12 On 17 March 2014, Greenwood J referred representatives of the Badulgal, the Mualgal and the Kaurareg Peoples to mediation in an attempt to resolve these disputes. As I noted in Nona at [13]-[15], this mediation was held in February 2015. The outcomes of the mediation included an agreement to amend the application and replace the applicant so as to reflect the shared ownership claim. In these reasons I will describe this as the 2015 agreement. The amended claimant application and the replacement of the applicant was authorised in February 2020, and the amended claim was certified by the Torres Strait Regional Authority in April 2020. It was the authorisation process that prompted the formal expression of disagreement from some within the Badulgal community.
13 On 4 March 2020, an interlocutory application was filed in this Court seeking orders to join five Badulgal men as respondents to this proceeding (the Badulgal respondents). The Badulgal respondents contended that under customary law, the islands of Warral and Ului were in the exclusive domain of the Badulgal, and the 2015 agreement and consequent shared ownership claim were wrong, and would lead to the diminishment of the Badulgal’s customary rights in favour of the Mualgal and Kaurareg Peoples.
14 On 15 July 2020, for the reasons set out in Nona, this Court granted leave to replace the applicant so that members of each of the three groups constituted the applicant, and leave to the newly constituted applicant to amend the s 61 application to make the shared ownership claim. The Court also granted the Badulgal respondents’ application for joinder.
15 The separate questions were stated in Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland [2020] FCA 1353 (Nona (No 2)). The active parties on the separate question hearing were the applicant, the State, the Commonwealth and the Badulgal respondents.
16 The wider regional area of the Western Torres Strait, as relevant to the evidence on the separate questions, can be seen in the agreed map at attachment 3, tendered in the separate question proceeding.
17 The separate questions were set out in full in paragraph 1 of the orders made by the Court in Nona (No 2):
Pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth), the following questions are to be determined separately from any other questions in the proceeding (including questions arising under s 225(c), (d) and (e) of the Native Title Act 1993 (Cth) (the NTA)):
(a) but for any question of extinguishment of native title, does native title exist in relation to any and, if so what, lands and waters of the claim area?; and
(b) in relation to that part of the claim area where the answer to (a) above is in the affirmative:
(i) who are the persons, or each group of persons, holding the common or group rights comprising the native title?; and
(ii) what is the nature and extent of the native title rights and interests?
18 All parties agreed this form of questions enabled the Court to make findings, and a determination of native title, on a basis other than the one in the shared ownership claim. For the reasons set out below, the Court has found native title exists in all of the claim area, and it is held by the Badulgal and Mualgal Peoples.
19 This trial has been challenging in terms of logistics. All parties, their witnesses and supporters, their legal representatives, the relevant representative bodies (TSRA and then Gur A Baradharaw Kod Sea and Land Council Torres Strait Islander Corporation) and their staff, have worked cooperatively and positively to make each stage of the trial run as smoothly and efficiently as it could. Careful attention has been paid by the TSRA and GBK to ensuring that members of the three communities could attend the separate question hearing. The Court expresses its gratitude to them all. The Court is grateful to the communities of each of Waiben, Mua and Badu for their warm hospitality during the conduct of the hearing. I express my personal gratitude to my Associates at various stages of the trial – Rosie Cham, Ganur Maynard, Michael McArdle and Sophie Ward, to Judicial Registrar Simon Grant and his assistant Melinda Carr, to the Court’s remote hearing officers Neil Warner and Jared Lane, and to Dave Oldland and Merryl Alexander from Transcript Australia. I also thank Wendy Chen, who provided proofing assistance over the weeks leading up to today. The Court is grateful to the owners and staff at the Cairns Business Hub (formerly known as the iiHub) for providing a culturally appropriate, comfortable and welcoming venue for the Cairns-based parts of the hearing.
20 The Court also extends its sincere gratitude to Mr Cyril Repu, from Mabuiag, who acted as an interpreter for the lay witnesses where required. This was an important and difficult undertaking, that required skill and concentration. Mr Repu performed his task with good humour and patience, affording respect to all witnesses, and the Court is grateful to him.
21 The Court acknowledges the cooperative and good natured way in which all legal representatives conducted the trial. Lastly, as I said on several occasions during the trial, the Court is conscious this proceeding has been very difficult at a deeply personal level for members of the three communities, and especially for witnesses. All conducted themselves with great respect and dignity for the most part. The Court is grateful for the respect and restraint shown by all those who participated in or observed the conduct of this proceeding.
22 These reasons commence with some matters of terminology. I then describe in brief terms the adversarial context for this proceeding and what it means for how the Court decides the answers to the separate questions. Next, I set out a summary of the evidence relied upon, and introduce all of the lay and expert witnesses who gave evidence. The documentary evidence was voluminous, and I give no more than a brief summary of the categories of documentary evidence before the Court. Where it is material to my findings, I refer to the documentary evidence later in my reasoning. Next, I turn to a conceptual matter which informs the overall approach I have taken, and the conclusions I have reached. A number of essentially historical factual matters must then be explained, especially about previous native title determinations in the region.
23 I then turn to some matters which involve some questions of law, and which are material to answering the separate questions. In this section, I work through in detail my findings about the nature and significance of the lay evidence given in Akiba. I also explain the matters I do not consider the Court needs to, or should, decide, even though some of them were the subject of submissions by one or more of the parties. Next, I explain my approach to some of the factual issues, and my approach to various categories of the evidence.
24 The final section of the reasons sets out my principal factual findings. There are two parts to that section. First, I set out my approach to, and findings on, certain factual matters that arose during the trial, each of which informs my reasoning on the key disputed questions of fact and the answers to the separate questions.
25 Second, I then turn to making ultimate factual findings necessary to the determination of the answers to the separate questions, on which the parties’ respective cases and submissions concentrated, and explain my answers to the separate questions.
26 In the terminology used in these reasons I have tried to be faithful to the lay evidence in particular, because that is the language used by the native title claimants themselves.
27 Some terms and descriptions are unavoidable, even though they carry the baggage of colonisation. For example, Eliziah Wasaga reminded the Court in his evidence that to identify as a “Torres Strait Islander” involves the use of a settler name, Torres.
Names used to identify the people of various home islands
28 In his supplementary report, Mr Ray Wood, one of the anthropologists called on behalf of the applicant, explains the usage of prefixes and suffixes to identify members of different home island groups. At [17]-[20] he explains:
Turning to Torres Strait social group nomenclature, group names consist of a stem and suffixes, the stem being either:
(i) the name of a home island; or
(ii) the personal name of a notable mythological figure.
To this is added a combination of suffixes which together mean ‘(people) of/belonging to/owners of’ that island or mythological figure. Original dialect variation is largely lost and the forms of the combinations are now standardized as -laig/-raig (singular or small group) and -lgal (mass plural, communal). The names denote not merely residence on an island, but ownership of it (see below). I note in the transcript that the Court is already familiar with Badulaig/Badulgal and Mualaig/Mualgal, and other examples are Purmalgal and Saibailaig, based on the home island names Badu, Mua, Purma (Poruma), and Saibai respectively.
Differing from these cases, the stem of the name now long written as ‘Kaurareg’ is not a placename, but derives from Kauraru, one of the names of the hero Waubin, and derived from kaura ‘bird (sp.),’ which in one version of the Waubin myth animates a headless body which grows into the giant body of Waubin. The origin of the name is thus a reference to the people of Kauraru alias Waubin. The Kaurareg were also often referred to by others as the Muralag people, after their core home island, a usage which Haddon and others before him picked up and followed.
‘Kaurareg’ is not the only group name based on that of a mythological personage. There is also the Central Islands name Kulkalaig/Kulkalgal, in which the stem Kulka is the personal name of a focal mythological hero Kulka from Cape York Peninsula who travelled through the Central Islands and settled at Aurid. The Central Islanders are called Kulkalgal after him. During the hearing Alick Tipoti (T849-15), Badhulaig, referred to the Kulkalgal (the transcript’s ‘Kulkulku’ at T673.15) as the Central Torres Strait Islands as still current usage.
A somewhat hybrid case is Goemulgal (aka Gumulgal), the stem of which is a placename on Mabuiag, Goemu, but also a reference to the mythological hero Kwoiam, for Goemu is the site where Kwoiam made his home, as Sydney Ray, a member of the Haddon expedition was told at Mabuiag (Haddon 1904:2). Goemulgal thus was often used as an indirect identifier of the Mabuiag people, and a higher level, Mabuiag and Badu together, as the people of/associated with Kwoiam. Wilkin (1904:286) observes that “Badu counted for all practical purposes as part of Mabuiag,” and at other points he and others use the name Goemulgal/ Gumulaig as a collective one for the Badu and Mabuiag people as single community, as in the passage I cite in Wood 2022 at [52].
(Footnotes omitted.)
29 When in these reasons I am describing the wider group of people from a particular home island, I use the terms Badulgal, Mualgal and Kaurareg People.
30 For the people of Mabuiag, the island to the north of Badu, which features in the evidence at various points, some lay witnesses use the term Gumulgal, which is the term used by another of the applicant’s experts, Dr Murphy. However, other lay witnesses use Mabuiagulaig or Mabuiag People. In these reasons, I refer to the people of Mabuiag as the ‘Mabuiag People’.
31 There are English names for Warral and Ului which appear in some of the material, but which I otherwise do not use in these reasons. Dr Murphy in his 2015 connection report for Warral and Ului at [44] explains how these English names were assigned:
Ului was named West Island by Bligh in 1789, but he sighted it at a distance of 3 or 4 leagues (9-12 nautical miles) from the south by his own reckoning, and did not land there. Waral was named Hawkesbury’s Island by Edwards in 1791, but like Bligh with Ului, he named it from a distance and did not land there.
(Footnotes omitted.)
32 Dr Murphy repeated this explanation at [66] of his amended report in this proceeding.
33 The home islands of the Kaurareg People often remain identified by names given after colonisation. I have attempted in these reasons to use the Kaurareg names for their islands. Thus, I have used Waiben for Thursday Island, Ngurapai for Horn Island, Kirriri for Hammond Island and Muralag for Prince of Wales Island.
34 Where words are given different spellings in either the source materials, lay or expert evidence, or in prior judicial decisions, I have generally chosen the spellings consistent with prior judicial decisions.
35 There are various spellings for the names of some places. Mabuiag is spelled Maubiag in Dr Powell’s 1998 report. Ngurapai is spelled Ngurupai in Michael Southon’s 1997 report and by Drummond J in the Kaurareg determinations (Kaurareg People v State of Queensland [2001] FCA 657). Kirriri has sometimes been spelled as Kerriri in the academic documents tendered in evidence and appears as Kiriri in Mr Ray Wood’s 2022 report. Muralag has been spelled Murulag in previous decisions in this Court. For each of these place names, in these reasons I have used the spellings bolded above.
36 Warral is often spelled Waral. In Attachment 1 to Akiba it is spelled with one ‘r’. In his 2015 connection report, Dr Murphy spelled it as ‘Waral’ and Mr Wood also uses that spelling in his expert report. In the written outlines of evidence by lay witnesses filed by the applicant and respondents in this proceeding, however, ‘Warral’ is used. In these reasons, I have used ‘Warral’.
37 The island of Mua is sometimes spelled “Moa” in the materials. In his 2020 report, Dr Hitchcock states:
Mua is the correct language name for Moa Island, and the island is referred to as such throughout this report (see Powell 1998:4).
38 In these reasons I use ‘Mua’. That is also the spelling used in Akiba.
39 The name of the island(s) just to the north of Warral (on the map at attachment 1, shown as two main land forms), Sunswit, was often spelled differently in the material before the Court (as Sansuit, Sunsuit, or Sanswit). On the tendered maps, the spelling used is “Sunswit”, so I have adopted that spelling. I have also used the singular, as all the evidence did, even if geographically there may appear to be more than one landform on the agreed maps.
40 Muknab Rock, which is located to the south of Mua and east of Warral, is spelled in Akiba as “Mokanab”, on the map in map 7 of exhibit A1 as “Mukanab” and in the prior decision Manas v State of Queensland [2006] FCA 413 as “Muknab”. I have used ‘Muknab’.
41 Murabar or Murbayl, identified by the English name of Channel Island, was covered by the 2006 Mualgal determination (see [213] below), along with Muknab.
42 The spelling for the names of historical and mythological figures sometimes varies. The hero Kwiam is spelled Kwoiam in Akiba and is spelled in other sources as Kuiam. I have used ‘Kwiam’ in these reasons, as this is the spelling that accords with the lay witness evidence given in this proceeding.
43 There are various spellings for a central Kaurareg figure, Pithalai. Across a number of sources, his name is variously spelled Pithulai, Pihulai, Puthulai, Pitalai and Pithulay. I have used ‘Pithalai’ in these reasons, according with the lay evidence given in Akiba.
44 The Badulgal apical ancestors Waii and Sobai are referred to by various spellings in sources as Wai and Sorbai. I have used the ‘Waii’ and ‘Sobai’ spelling, as that accords with the spelling in the written outlines of evidence by the lay witnesses in this proceeding.
45 The people of Naghir have been referred to by the variants Kulkalgal, Kulkalagal, Kukalgal and Kulkulgal (see, for example, the 1997 Southon report and Mr Wood’s supplementary report). I have used ‘Kulkulgal’, as this spelling accords with the spelling used in Akiba.
46 In Akiba, Finn J used the term “Islander” and “Islanders” to refer to the members of the 13 communities in the Torres Strait who comprised the claimants in Part A.
47 In his Honour’s reasons, Finn J generally distinguishes between “Islanders” and “Pacific Islanders”, and sometimes uses the term “Torres Strait Islanders”. As I read the reasons, his Honour uses “Islanders” as a shorthand for “Torres Strait Islanders”. As his Honour acknowledges at [182], “Torres Strait Islanders” is a term defined in s 253 of the NTA as “a descendant of an indigenous inhabitant of the Torres Strait Islands”. The term “Torres Strait Islands” is not defined in the NTA. In attachment 1 to Akiba, Finn J lists the islands, islets, cays and reefs of the Torres Strait that are within the claim area, with their language and English names. His Honour includes the Kaurareg home islands such as Kirriri, Ngurapai, and Waiben, as well as Warral and Ului.
48 In discussing the parties’ alternative conceptions of “society” for the purposes of their arguments in Akiba, at [175] his Honour says:
During the hearing of this matter I directed the applicant to provide “a plain English description of the different possible societies” which could support the claims made by it. Five such societies were identified. They were, in descending order of scale and put in short form (omitting genealogical qualifications):
(i) the larger regional society which extends from the southern mainland coast of Papua New Guinea where it includes some people of that area; it includes all Torres Strait Islanders (including Kaurareg, whether or not they regard themselves as Torres Strait Islanders); and extends to the northern coast of Cape York Peninsula where it includes some people of that area.
(ii) the one society which is that body of persons who are Torres Strait Islanders, whether or not including Kaurareg — this is the applicant’s society though it does not disavow a larger regional society;
(iii) the two language groups, Eastern and Western — a grouping the applicant attributes to Haddon;
(iv) the Torres Strait Islanders of four regional cluster groups of islands — the Commonwealth’s societies; and
(v) the Torres Strait Islanders of each, several, inhabited island — the State’s societies.
(Original emphasis, citations omitted.)
49 It is tolerably clear, in my opinion, that at many points in his Honour’s reasons, Finn J uses the term “Islanders” inclusively of Kaurareg People, but not of any mainland peoples such as Gudang. See, for example, the narrative about governmental regulation at [45]-[50], which expressly includes Kaurareg.
50 I do not use the term ‘Islander’ very often in these reasons, although it is used frequently in the source material I extract. I do use ‘Torres Strait Islanders’ and I do so without positively excluding or including the Kaurareg People. I accept this is a sensitive issue. The evidence in this proceeding conveyed the strong Kaurareg self-identification as Aboriginal People rather than Torres Strait Islanders, notwithstanding close and sometimes multiple kinship connections with the Torres Strait, but this is not a matter I need make any findings about, and I make none.
51 A number of language terms will be used throughout these reasons, being unique concepts that are best expressed in their original terminology. I provide an explanation of them below.
52 Sarup – Many witnesses spoke of sarup. It was and remains a lived experience, and a lived apprehension about having to travel across the sea. Sarup denotes the state of being “stranded”, “stuck” or “shipwrecked” on an uninhabited island. Lay witnesses in the proceeding attest to a shared cultural practice of anticipating or provisioning for the possibility of people becoming sarup by practices of planting coconuts on islands so that if someone is sarup, they will have something to eat and drink. Fr Paul Tom described sarup this way:
Well, if there’s a coconut on the island, you have to be survive. You have to climb up without asking anybody, otherwise, who you going to ask? You know. When you on a position like that, anything you find on the beach growing, whether food or coconut, you have to knock it down because that’s the only food that you can eat when you sarup. I mean when you struggled, stranded.
53 Adhi – In the evidence in this proceeding, adhi were principally employed as a Kaurareg concept, though were referred to also by Mualaig and Badulaig witnesses. The adhi sites (adhilgal) may function as ‘mark posts’ or a ‘boundary mark’ demarcating the boundaries of country. Thomas Savage explained it is important to acknowledge and pay respect to adhi:
THOMAS SAVAGE: Because still is adhi, that adhi know is law and because it’s - for us Kaurareg it’s a must, you must acknowledge those adhi, that’s the law. There’s no way around it, no ifs and buts about it, that’s the law, yeah.
54 Respecting adhi is, as explained by Mr Savage, an essential practice of protocols of respect. It is like:
THOMAS SAVAGE: I go to your place I knock on your door. That’s … to you. That’s what we do.
55 Gud pasin – This concept is a shared one across the Torres Strait. It expresses notions of sharing with others, kindness, humility and respect. Some witnesses connected it to, or saw parallels with, Christian teachings, others did not. Eliziah Wasaga, a Kaurareg witness for the applicant, explains:
ELIZIAH WASAGA: Well, gud pasin is, you know, like – well, my grandmother taught me that – she talks about this thing called thubud system. Thubud system is like part of that kinship system, like, if you come to my country I look after you. I feed you. I house you. I clothe you. You know, I make you feel good. Because when I go to your country you got to return the favour. So that is the importance of that thubud system again that my grandmother taught me. But when that gud pasin become … it sort of complemented that and when you sort of complemented that – because I – as I grew older and I start to and understand, and I’d research and I’d read and, you know, when Christianity came in to this region, we were very badly impacted.
But when our people saw it – that these white men come with this boat and talks about the spiritual, we live the spiritual too. So we share. Because sharing represents love. And if you love, you give, and you get blessed.
56 Geiza Stow, a Badulgal witness for the applicant, describes gud pasin behaviour as follows:
GEIZA STOW: Well, it’s been handed down and it’s a respect gud pasin. That you do not go to a place without you know, they have got people on that place there so you would …
MS PHILLIPS: How does it make you feel when you do ---
GEIZA STOW: Because they will look after you and they will look after you while you there and then while you coming back. So that has been instilled, the values, that were handed down.
57 Tommy Tamwoy, a Badulgal witness for the respondents, puts gud pasin succinctly as:
TOMMY TAMWOY: It’s the respect for everybody and anybody.
58 Ailan pasin – This concept is connected to gud pasin. Some witnesses described it as the same concept. “Ailan” means “island”. In his evidence given in Akiba, the late Walter Nona explained it this way:
MR BLOWES: Alright. Now, what about the word “ailan pasin”? Is that - do you know those words, “ailan pasin”?
WALTER NONA: Yes.
MR BLOWES: And how do they fit in? What do they mean?
WALTER NONA: That mean – “ailan pasin”, got to follow - nearly the same. All the same. There’s gud pasin, mina paua. So the children can adopt that gud pasin. That’s what “ailan pasin” mean.
MR BLOWES: So when you said - you said ailan pasin, and you said mina paua. Are they the same things, or are they different things?
WALTER NONA: They’re the same things, yes.
59 Similarly, in her lay evidence given in Akiba, Lilian Bosun says:
Ailan pasin is the same as gud pasin. That’s respecting people and gud pasin is the same all across the Torres Strait.
60 Both ailan pasin and gud pasin are traditional concepts, as Finn J explained in Akiba at [238]-[239], rejecting a Commonwealth contention that they were Christian concepts:
In Anna Shnukal’s 2004 Dictionary of Torres Strait Creole, “ailan pasin”, a noun, is defined to mean “island fashion, island custom. The way Islanders have long done things”. “Gud pasin”, an adjective or an adverb (though often used in evidence as a noun), is defined to mean “polite, generous”. Almost all of the Islander witnesses addressed the subject of ailan pasin in their affidavits. Gud pasin is the recurrent formula used in their descriptions of it. While ailan pasin has not been the subject of discrete address in submissions, it warrants present mention. It reflects the outlook, the cast of mind, of the witnesses. It gives vitality and coherence to what otherwise is treated discretely in written submissions on laws and customs.
The Commonwealth has suggested that aspects of ailan pasin owe some debt to the activities of the London Missionary Society and to the Islanders’ embrace of Christianity. I consider its provenance clearly predates sovereignty. Such is the view of some number of the Islanders, for example, Kapua George Gutchen, Mareko Kebisu, Bully Saylor; see also Professor Beckett, 2008A, [79] ff and Professor Scott, 2008, [99]. Its practice in some respects, though, was probably affected before sovereignty in inter-island relations by suspicions born of warfare and raiding: see Beckett, 2008B, [13]; and after sovereignty, as a result of the demands and influences of church, government and the marine industries: Beckett, 2008A, [103].
61 Mina pawa – Alternatively transcribed as mina paua, this is an equivalent concept concerning right behaviour, including respectful sharing and generosity in relation to other people, especially people from other groups or that one does not know. In his lay evidence given in Akiba, excerpted at [367]-[368] below, the late Tom (Jack) Baira illustrates how this concept works in practice. In his lay evidence given in Akiba, Walter Nona succinctly sums up the concept as “the right way to go”:
MR BLOWES: Alright. And I just want to ask you one word - is there a language word mina paua?
WALTER NONA: Yes, that’s mina paua, that’s gud pasin.
MR BLOWES: Yes?
…
MR BLOWES: Yes. And what’s that mina paua got to do - has it got anything to do with thubud, anything to do with friend?
WALTER NONA: Well, that’s gud pasin, you know, so the children may see those mina paua to follow when they come - when they grow big, they have to follow the right way to go.
MR BLOWES: So that - - -
WALTER NONA: That’s what mina paua is.
MR BLOWES: That’s the right way to go.
WALTER NONA: Yes, right way to go.
62 Ronnie Nomoa in his evidence in this proceeding also explained mina pawa:
MR BLOWES: Yes. And when you talked about mina pawa and you were talking in there about the Kubin meeting in 2005 to Two Thousand and – or Two Thousand and Five or Six, and you gave the illustration of the $5 note, is the point of that, that if you and somebody asked you for $5, and you give it to them, you expect it back?
RONNIE NOM[O]A: No, because that’s mina pawa, a person who don’t know you, or person who know you, if he asks you for $5, you know he need money and you give it without replacing by, and that’s mina pawa. It belongs to people of Torres Strait.
MR BLOWES: Yes. And if at some later time you come across that man and you need $5 - - -
RONNIE NOM[O]A: It’s up to the person now. If he got to think he look at you, “Oh, this person who give me $5”, and if he give you back $5, well that’s up to him.
MR BLOWES: Okay. Alright. That’s a very generous custom.
RONNIE NOM[O]A: That’s our custom and it will never fade out.
63 Pithalai – Pithalai is an actor who features in the Waubin myth or narrative, which I discuss in detail in these reasons. The place Waubin narrative in Kaurareg traditional law and custom about rights to country is central to some of the issues arising in the separate questions.
64 Chuktalk – This activity is a norm practised again across the Torres Strait. It involves paying respect towards ancestors when approaching or visiting in certain places. Geiza Stow described it this way:
GEIZA STOW: We have always had values of when you go to another man’s place, you must acknowledge the ancestral place, and yamulin – chuck talk. Talk to them.
MS PHILLIPS: So if you go to Warral, what do you do?
GEIZA STOW: Even when you – before you land, you might be in the boat outside the water, you would face and talk to the land. Why I’m here. Whether you got dinghy full of people, or your family, that we come in peace and we are not going to disturb and we are not going to destroy anywhere.
MS PHILLIPS: And you used that phrase chuck talk?
GEIZA STOW: Yes.
MS PHILLIPS: What is chuck talk?
GEIZA STOW: Talk.
MS PHILLIPS: Who are you talking to?
GEIZA STOW: To the spirit of the place.
MS PHILLIPS: Whose spirits are there in that place?
GEIZA STOW: That place is all ancestral, it could be Badulgal, whoever went there or whoever went passing there, but we were always, passed down that you do not just walk in and walk out, you must respect, and this is the values that I was taught and I handed down to my kids.
MS PHILLIPS: Do they do that too?
GEIZA STOW: Yes.
65 Coming of the Light – Although this is an English expression, I include it here because it is used by Torres Strait Islanders. The phrase refers to the point in history when Christian missionaries established churches and missions in the Torres Strait. It is used to indicate the point in time when Christianity was introduced to Torres Strait Islanders.
Names of claimants and their ancestors
66 To make these reasons intelligible, it will be necessary to use the names of people who have died. I intend no disrespect by doing so. Where there are spelling discrepancies as to names, I have attempted to remain faithful to the lay evidence. For the names of people, living or deceased, I have made my best effort to be faithful to the way lay witnesses spelled their names, especially their spelling of those related to them.
67 The separate questions require the Court to examine the contemporary situation in respect of these islands, but the focus is really on what the situation was before colonisation. I prefer to use the term “before colonisation” or “pre-colonisation” to “pre-sovereignty” not because there can be any dispute about the assertion of British sovereignty, and its consequences, legal and factual, but rather because in my opinion an honest account of the history of this nation must include acknowledgement that what settlers did to First Nations peoples was to attempt to colonise them, subjugate them to a new and foreign system of law and government, including with regard to land ownership and tenure. Colonisation was neither wanted nor welcomed by First Nations peoples; it was imposed upon them, with tragic consequences, some of which have featured in the evidence in this proceeding, especially about the Kaurareg People.
“PROVING” NATIVE TITLE EXISTS AND SHOULD BE RECOGNISED
68 By the time of final submissions on the separate questions, all active parties agreed the answer to question (a) was ‘Yes’. On the evidence, that is plainly correct. Therefore, the real dispute is about who holds that native title, and on what basis.
69 This separate question trial occurs within an adversarial system of justice. The Court is not conducting an inquiry, but resolving a dispute between parties, and so the Court relies on the evidence and arguments presented by the parties. The parties make forensic decisions about what evidence to adduce. For example, what lay witnesses to call, and what documents to tender. They make forensic choices about what questions to ask of witnesses, and what not to ask. They choose what to emphasise, and not to emphasise.
70 The moving party – the applicant – has the burden of proof. An applicant party must give the Court enough evidence to persuade the Court on the balance of probabilities about what are the correct and relevant facts, and the conclusions to draw from them. This means the Court is deciding which facts are more likely than not to be the correct material facts.
71 In this proceeding, the applicant has the burden of proving the shared ownership claim. The Badulgal respondents do not have a legal burden of proof. Nor do the State or the Commonwealth. The Badulgal respondents correctly accepted they do have an evidentiary burden – that is, if they seek to persuade the Court that the applicant’s shared ownership case is wrong, and the islands belong only to Badulgal, they will need to persuade the Court of those propositions through the evidence.
72 The applicant and the Badulgal respondents relied on expert evidence as well as evidence from claimants. The role of expert witnesses in a proceeding is to assist the Court to understand evidence before it, and/or to explain matters to the Court, often matters about history, customary law and traditions, which may contribute to what the Court must decide. In doing so, they will express opinions about the facts they have gathered together.
73 Here, all four experts who gave evidence are anthropologists. Each is very experienced and the Court finds they gave their evidence in a genuine attempt to assist the Court. The Court does not have to agree with an expert’s views or opinions, even if the expert is highly qualified or experienced. The views and opinions of an anthropologist do not carry any greater weight than the evidence of the claim group members, just because they are anthropologists.
74 The Court must consider and weigh all the evidence put before it, and then decide two basic issues:
(a) Has the applicant proved it is more likely than not that native title in Warral and Ului is held jointly by the Kaurareg, Badulgal and Mualgal Peoples? If yes, then should the Court recognise a shared native title in Warral and Ului, or is there more than one native title between the three groups?
(b) If the applicant has not proven the shared ownership of Warral and Ului is more likely than not, then the Court must decide if the evidence shows it is more likely than not that native title is held by one, or more, of the Badulgal, Mualgal or Kaurareg People. If more than one group, then should the Court recognise this as a shared native title in Warral and Ului, or two separate native titles?
75 In this proceeding, one feature distinguishing it from many other native title cases is the important role of this Court’s previous decision in Akiba. The parties tendered a transcript of some of the witness evidence before the Court in Akiba, as well as relying on findings made in that case. There was some debate about what the tendered Akiba evidence proved, and what the Court’s findings in Akiba meant. In these reasons, I explain my conclusions about what was decided in Akiba, the relevance and weight of the evidence in Akiba tendered before this Court, and how much of the issues in this proceeding are determined by what the Court found in Akiba.
76 In its case management of this proceeding, the Court split the hearing of lay evidence and expert evidence in the trial of the separate question. The Court prioritised the lay evidence so as to understand how the claimants themselves explain their connection through traditional law and custom to the islands, and explain how their family and community histories of occupation and use of the islands, and the surrounding islands and waters, bear out or support the claims of native title. The Court’s view was that it would be assisted in understanding and evaluating the expert evidence if the lay evidence had been completed first. The Court’s expectation was that the experts would also be assisted by the lay evidence. That expectation did not prove to be entirely well-founded.
77 During the hearing of lay evidence, the Court undertook a view of Warral and Ului at the request of the applicant and the Badulgal respondents, because of the critical importance of the physical features of the islands and their surrounds to the parties’ evidence. The view was of considerable importance to my understanding of the evidence.
78 The hearing of the lay evidence commenced at the Waiben courthouse on Wednesday 6 October 2021, where the Court heard from the applicant’s Kaurareg witnesses over a span of three sitting days. After the weekend, the Court resumed on Monday 11 October at the community hall on the island of Mua, where the applicant’s Kaurareg lay evidence concluded and its two Mualgal witnesses gave evidence over two sitting days.
79 The Court conducted its view of the islands on Wednesday 13 and Thursday 14 October 2021.
80 The Court resumed lay evidence at the community hall on Badu, completing the applicant’s lay evidence with testimony from Badulgal witnesses on Friday 15, Saturday 16 and Monday 18 October 2021. The Badulgal respondents began their lay evidence at the same location on Tuesday 19 October 2021, and continued until the end of the Court’s final sitting day in the lay evidence hearing on Friday 22 October 2021.
Claim group members: the applicant
81 What follows are my findings of fact about each lay witnesses, their background, ancestors and relevant family relationships. I deal with the witnesses in the order in which they were called.
82 In the briefest of summaries, the lay evidence covered the following topics, aside from the family history and identification of each witness: travel to, and in the vicinity of, each of Warral and Ului both by the witnesses themselves and their families, and what they have been told about travel by their elders; the concept of sarup and the use of the islands for this purpose, but also the use of Sunswit; use of waters around the claim area, and the beaches in and outside the claim area, for gathering of marine resources; use of the land for gardens; the location of water and other resources in the claim area; who has rights to make gardens and/or build structures on the islands and who has done this; burning practices; stories said to be associated with the claim area, including the Waubin and Pithalai stories and the story of Waii and Sobai; the role of adhi; grave sites; historical accounts of clashes and warfare between various groups in the Western Islands; the removal of Kaurareg People to Mua; the concept of gud pasin; the concept of chuktalk; the work done in the Western Torres Strait by elders on pearl luggers and in the trocus and crayfishing industries; family relationships and connections between the people of Badu, Mua and the Kaurareg home islands, including aspects of culture and convention that are common among the groups; the Coming of the Light and what it meant for the practice of culture; the 2015 mediation and the concept of sharing of uninhabited islands.
83 I refer in more detail to the lay evidence in my findings.
84 Fr Paul Tom was the applicant’s first witness in the lay evidence hearing. He gave his evidence on Waiben. He identifies as Kaurareg and Mualaig. His father, Elikiam Tom, was a Kaurareg and Gudang man from Mount Adolphus, Muri Island. The Gudang People are from Cape York, and identify as Aboriginal. Fr Tom’s mother, Weiba Tom (née Makie), was a Mualaig woman from Mua.
85 Fr Tom’s paternal grandfather was the son of Tam Muri, from Muri, and Mudaunai, from the Kaurareg People. Mudaunai’s father was Koberis, who was the son of Makaku and Buia, from the Kaurareg People. Fr Tom’s evidence was that every Kaurareg person is a descendant of Makaku and Buia in one way or another.
86 Fr Tom was born in Kubin on Mua on 25 January 1947. This was a little more than 20 years after the Kaurareg People were forcibly removed to Mua by the Queensland government. In his 1997 report in support of the Kaurareg native title claims over some of their home islands, Michael Southon traces the forced removal of Kaurareg People from Kirriri to Mua, and some of the explanations given for it. I return to the forced removal later in these reasons.
87 Fr Tom attended school on Ngurapai and then on Waiben, where he completed grade 10 at the end of 1962. After his schooling, Fr Tom worked on pearl luggers in the Western Torres Strait, including the pearling grounds near Badu and northwest of Waiben. During this time, Fr Tom worked with members of the Nona family, from Badu. He moved to Townsville to work on the railways at the end of the 1964 pearling season. He married Rebecca Luffman, a Mualaig woman, in 1970, and moved around Queensland and Western Australia working in various jobs. Fr Tom returned to Kubin in 1986. He worked for the Kubin Council and was elected as a Councillor for Kubin in 1994, a role he held from that time until the Mua Island Council was amalgamated into the Torres Strait Islands Regional Council in 2007. Fr Tom was ordained as a deacon in the Anglican Church in 1999. He was ordained as a priest on 26 January 2015.
88 The applicant’s second lay witness was Thomas Ned Savage. He also gave his evidence on Waiben. His father, Nadaiaga Guy Savage, was a Mualaig and Kaurareg man born at Poid. Mr Savage’s paternal grandfather, Erimia Nagibu, was also Mualaig and Kaurareg, and his paternal grandmother, Bakari Kanai, was Mualaig. Mr Savage’s mother, Mrs Ellen Pia Savage (née Namai), has connections to several communities, including the Kaurareg People, Gudang and – by traditional adoption – the Mualgal.
89 Through his mother, Mr Savage is the grandson of Wees Nawia, an influential Kaurareg elder and a common relative of many of the applicant’s lay witnesses. Ultimately, Mr Savage traces his Kaurareg identity through to his great-great-great-grandfather, Makaku, who is one of the Kaurareg People’s apical ancestors, as Fr Tom explained.
90 Mr Savage was born on 16 April 1970 and grew up on Ngurapai, before attending primary school on Waiben. He completed primary school and started secondary school in Cape York, leaving in Year 9 to work as a bricklayer in Weipa, on the western side of the Cape York Peninsula. Mr Savage left Cape York to work as a builder’s labourer for the Kubin Community Council on Mua. He has since returned to Cape York, where he currently lives and works.
91 Enid Tom identifies as Kaurareg, and gave her evidence on Waiben. Her father was Billy Wasaga, a Kaurareg elder, the original first named applicant for the Kaurareg native title claims, and her mother was Alice Tom.
92 Ms Tom’s paternal grandfather was Wasaga Billy and her paternal grandmother was Tam Bosun. Ms Tom’s maternal grandfather was Elikiam Tom, which makes her in European terms the niece of Fr Paul Tom. Ms Tom’s maternal grandmother was Weiba Tom, from Kubin. Ms Tom’s evidence is that her Kaurareg ancestry is ultimately derived from Zagra, her paternal great-great-grandfather.
93 Ms Tom was born on 25 July 1962 on Waiben. She completed primary school on that island, but for secondary school moved to the Tablelands region southwest of Cairns. Her evidence is that nobody spoke her language in the Tablelands, so she became homesick and returned to Waiben after grade 10. She worked as a nurse on the island from 1979 until 1988, when she moved to Ngurapai to help establish a medical aid post there. At the end of 1988, Ms Tom moved to Darwin, where she would live for nine years, studying Aboriginal and Torres Strait Islander women’s studies at university. She returned to the Torres Strait in 1997 to help with the Kaurareg native title claims, and worked for the Kaurareg prescribed body corporate after the Kaurareg native title determinations were made. She remains a director and an administrator of the Kaurareg Native Title Aboriginal Corporation, and now lives on Ngurapai.
94 Eliziah Wasaga identifies as Kaurareg, and gave his evidence on Waiben. His father, Samuel Wasaga, was a Kaurareg man and the first chairman of the Ngurapai Community Council. His mother, Lency Aken, was a Kaurareg and Mualaig woman. He was traditionally adopted by Eselina Nawie, a Kaurareg woman who traced her identity to the apical ancestor Bagie, but was taken back by his mother after his father’s death in 1974.
95 Mr Wasaga’s paternal grandfather was Wasaga Billy and his father’s mother was Tam Bosun, which makes Mr Wasaga in European terms the cousin of Enid Tom, but in Kaurareg custom, she is Mr Wasaga’s sister. Mr Wasaga’s maternal grandfather was Katua Namai, a Kaurareg man and a descendant of Makaku. His mother’s mother, Kaki Aken (née Kanai/Kaitap) was Mualaig and Mualgal.
96 Mr Wasaga was born on 10 April 1969 on Waiben but commenced his early schooling in Weipa. From 1975, Mr Wasaga lived with his biological mother in Townsville, where he completed primary school and started secondary school. Mr Wasaga left school to return to Ngurapai, where he lived with his traditional grandmother, Eselina Nawie. In the late 1980s, Mr Wasaga lived for a short time on Mabuiag Island with his uncle, Frank Genai. He married a Kaurareg and Gudang woman, Ivy Wasaga (née Rattler), and raised seven children on Ngurapai. Mr Wasaga studied Indigenous community management in Perth and now works as a mental health worker in Townsville. He was formerly the chairperson of the Kaiwalagal Aboriginal Corporation – a Kaurareg prescribed body corporate – and now holds the positions of director, secretary and public officer of the Kaurareg Native Title Aboriginal Corporation (RNTBC).
97 Naton Nawia identifies as Mualgal through his mother, Lizzie Nawia (née Savage), and Kaurareg through his father, Wees Nawia. Wees Nawia is a person whom the evidence, both oral and documentary, mentioned frequently in many contexts. Naton Nawia gave part of his evidence on Mua, part of his evidence on Ului, part of his evidence on Sunswit and part of his evidence on Badu. Mr Nawia is in European terms the uncle of Thomas Ned Savage and the brother of Lillian Bosun, who gave evidence in Akiba.
98 Mr Nawia’s paternal grandfather was Nawia Galgaberi and his paternal grandmother was Garagu, both of whom were Kaurareg. Mr Naiwa’s maternal grandfather was Aluwa Savage, from Mua, and his maternal grandmother was Matilda Stafford, an Aboriginal woman from the Queensland gulf country.
99 Mr Nawia was born on 10 November 1957 on Waiben. He was raised by his mother on Mua, where he attended primary school. After finishing school, Mr Nawia worked on pearling luggers around Waiben. When the pearling industry declined, Mr Nawia became a crayfisher, an occupation he had until his retirement about ten years ago.
100 Mr Nawia gave evidence about the trips he made to Warral and Ului, and the provenance of a Kaurareg song about travelling to Ului. He testified that the song originates from the heyday of the pearl lugging industry in the Western Islands.
101 Nazareth Adidi identifies as Italaig, which she explained is a name that some use for the people from Mua, the more common name being Mualgal. She was traditionally adopted by Wees Nawia and Lizzie Nawia (née Savage), which makes Mrs Adidi in European terms the sister of Naton Nawia and the aunt of Thomas Ned Savage. Mrs Adidi’s evidence was that all of the children of Wees and Lizzie Nawia were adopted. Mrs Adidi gave part of her evidence on Mua, part of her evidence on Ului, part on Sunswit and part on Badu.
102 Mrs Adidi was born on 6 September 1952 in Kubin and was raised there by her parents. She attended school on Mua, Waiben and Ngurapai. She married a Kaurareg man, James Kanai, who worked as a miner on Mua. In 1976, she and her husband moved to Townsville, where her husband worked with her biological uncle, Eddie Koiki Mabo, on land rights in the Torres Strait. Mrs Adidi worked in health care, and helped establish a centre that advocated for women’s rights and provided shelter to women escaping domestic violence. In 1990, her husband passed away, and she relocated to Waiben in 1992. Mrs Adidi remarried a man from Saibai Island, John Adidi, and studied theology and health care in Perth from 2004 to 2014. Mrs Adidi is now retired and lives on Waiben.
103 Mrs Warria identifies as Mualgal and Kaurareg, and she also considers herself part of the Badulgal community through her family. Mrs Warria gave part of her evidence on Mua, part on Ului, part on Sunswit and part on Badu. Her father was Oza Namai Bosun, whose mother, Bau Namai, was the daughter of Anu Namai, a Mualgal chief and descendant of the Mualgal ancestor Maga. Oza Namai Bosun’s father was Makeer Bosun, the son of the daughter of the chief of Kiriri (Hammond Island) – a Kaurareg man.
104 Mrs Warria’s mother is Lillian Bosun, who was adopted and raised by Wees Nawia and Lizzie Nawia (née Savage). Mrs Lillian Bosun gave evidence in the Akiba trial and some of her evidence has been tendered in this proceeding.
105 In European terms, Mrs Warria is the niece of Naton Nawia and Nazareth Adidi, and the cousin of Thomas Ned Savage. All these people were witnesses for the applicant.
106 Mrs Warria was born in 1967 on Waiben. She began primary school on Mua but, when she was still young, Mrs Warria was adopted to Ngailu Bani (from Mabuiag) and Cessa Bani (née Joe, from Badu). Mrs Warria moved to Badu to live with her adopted parents and spent much of her childhood on that island. She returned from Badu to her biological parents on Mua when her adopted father fell ill and moved to Waiben. She was sent to secondary school in Warwick, a town in southeast Queensland. Mrs Warria returned to the Torres Strait and married her husband, Milford ‘Moses’ Warria, who is from Masig, one of the central Torres Strait islands. With their children, Mr and Mrs Warria moved between Mua and Masig until 2009, when she settled on Mua.
107 Pastor Opeta James Kaitap identifies as Mualgal through his father, Suma. Suma Kaitap’s mother was Elion and his father was Inagi, both of whom were Mualgal. Pastor Kaitap’s mother was a Kaurareg woman named Joyce Kaitap (née Kanai). However, Pastor Kaitap explained that he does not identify as Kaurareg because, in his culture, a wife moves to her husband’s country. Therefore, Pastor Kaitap’s family stayed with his father’s side on Mua. Joyce Kaitap’s father was Opeta Kanai and her mother (Pastor Kaitap’s maternal grandmother) was Niceone Bosun, a sibling of Wees Nawia. Pastor Kaitap is thereby related to Naton Nawia, Nazareth Adidi, Thomas Ned Savage and Flora Warria. Pastor Kaitap gave part of his evidence on Ului, part on Sunswit, and part on Badu.
108 Pastor Kaitap was born on 22 January 1963 on Waiben. He was raised on Mua and attended primary school there. He moved to Townsville for secondary school and returned to the Torres Strait to work in the crayfish industry with his father and uncles, including around Dollar Reef and Warral. Pastor Kaitap now works as a machine operator and a religious pastor on Badu. He lives on Mua with his wife, Rita (née Nona, from Badu), with whom he has four children.
109 Mr Tipoti identifies as a Badulaig, and he gave his evidence on Badu. His mother was Phyllis Kusu and his father was Leniaso Tipoti, who was also known as Argan Besai, a Badulaig and Mabuiag man. Leniaso Tipoti’s mother was Dagum Tipoti, the daughter of Nomoa and Kaidi. Mr Tipoti’s paternal grandfather was Waipila Tipoti, the son of Kiriz and Alis Monday (also known as Alis Tipoti).
110 Mr Tipoti was born on 28 November 1975 on Waiben. He grew up on Badu and attended primary school there. He spent a lot of his childhood with his father, travelling around and between the islands and reefs of the Western Torres Strait, as well as to the island of Saibai, which lies further north. He learnt singing, dancing, art making, fishing and hunting on Badu, but moved to Waiben for schooling when he was about twelve years old. Mr Tipoti is now an internationally renowned professional artist, with tertiary qualifications from the Thursday Island TAFE, the Cairns TAFE and the Australian National University. Since October 2015 he has lived on Badu, where he produces art and works at the local art centre.
111 Geiza Stow identifies as a Badulaig, through her father, Aidan Laza, and she gave her evidence on Badu. Aidan Laza was the son of Bagari, a Badulaig man, and Tuigan, a woman from Saibai. Ms Stow’s mother, Naianga Blanket, was also Badulgal. Her maternal grandmother, Geiza Tamwoy, was a descendant of the Badulgal apical ancestor Sagul, and her maternal grandfather, Daniel Blanket, was a descendant of Wairu and Kaim.
112 Ms Stow was born on 17 June 1957 on Waiben. She grew up on Badu, attending primary school until grade 5, when she moved to Waiben. Ms Stow finished secondary school on Waiben in 1973, and completed a year of training at a TAFE college in Brisbane thereafter. She returned to Waiben and worked as a shop assistant for five years. She married her husband, Steven Stow, in 1982, and travelled around Queensland doing various jobs and completing further training at TAFE. During this time Mr and Ms Stow had four children, including Troy Laza, who is another witness for the applicant. Ms Stow divorced her husband in 1997 and returned to Badu in 1999 to be with her father. She worked as a housing officer for Badu Island Council for ten years. She currently works as a casual student welfare officer at the Badu School.
113 One aspect of Ms Stow’s evidence that became material during the trial was a map she told the Court about in her oral evidence, which she then produced. It was a very large map, rectangular in shape and all hand drawn. According to Ms Stow, the map was drawn by her father not long after the High Court decision in Mabo (No 2). A digital copy of the map was tendered as an exhibit in the hearing. I discuss the map in more detail later in these reasons.
114 Like his mother Ms Stow, Mr Troy Laza identifies as a Badulaig and gave his evidence on Badu. He was born on 11 March 1978 and is currently employed as the senior natural resource officer for the Torres Strait Islander Association’s western rangers division.
115 The applicant’s twelfth and final lay witness was Titom Nona, the first named member of the applicant. Mr Titom Nona identifies as Badulgal through his father, Philemon Nona, who was the son of Solomon Nona. He gave his evidence on Badu. Mr Titom Nona also considers that he could identify as Mualgal or Kaurareg through his mother’s side of his family tree. His mother was Flora Nona (née Savage), the daughter of Powanga Savage, who came from Mua, and Iaga Savage, who was originally from Normanton but moved to Mua with Powanga. His paternal grandfather was Solomon Nona.
116 Mr Titom Nona was born on 16 August 1957 on Waiben. He was raised on Badu and attended primary and secondary school there. After finishing grade 10, Mr Titom Nona fished for barramundi in Papua New Guinea for almost a year, and then worked as a crayfisher and on pearling luggers around the Western Torres Strait. He has lived on Badu for most of his life, and worked for the Australian Quarantine Service for 26 years.
The Badulgal respondents’ lay witnesses
117 Mr Nomoa is the third named Badulgal respondent. Mr Nomoa gave part of his evidence on Ului and Sunswit, and the remainder of his evidence on Badu.
118 Mr Nomoa’s mother’s name was Phoebe Lui, the daughter of a woman from Mornington Island named Daisy and a man from Samoa named Lui Samoa. His father’s name was Young Nomoa, the son of a woman named Koidei and a man named Numa (also known as Nomoa), both from Badu. Mr Nomoa ultimately traces his Badulgal heritage to the apical ancestor Uria.
119 Mr Nomoa was born on 10 August 1944 on Badu, in the bush of the centre of the island, where his family was relocated during the Second World War. In 1945, six months after the end of the war, Mr Nomoa and his family moved to the village of Wakaid, on the island’s south-eastern coast. He grew up in Circle V, which used to be known as Kona Village, where Mr Nomoa lived until his marriage in 1972. He was raised by his mother while his father worked on pearling luggers. Mr Nomoa worked his family’s gardens. He attended the Dogai school in Kona village until 1958, and began work on a pearling lugger after finishing grade 7; that is, when he was about fourteen. He worked the annual pearling seasons from April to January each year. After marriage, Mr Nomoa moved to Yallawar, on Badu, to be with his wife’s family. He moved into his current house on Badu in 2004, after his wife passed away. Mr Nomoa is now retired.
120 George Henry Nona is the second named Badulgal respondent. Mr George Nona gave part of his oral evidence on Sunswit, and the remainder on Badu.
121 Parts of Mr Nona’s evidence of his early family life are the subject of a suppression order.
122 Mr George Nona was born on 22 December 1971 on Waiben. He grew up in a house in Geia village, on Badu, and attended primary school on the island. He moved to Waiben to begin secondary school, and finished his secondary education in Redcliffe, a suburb in north-eastern metropolitan Brisbane. In early 1992, Mr George Nona went to Palm Island and then to Melbourne for tertiary studies. He worked for the Ipswich City Council in Brisbane, obtaining qualifications in bricklaying, but returned to Badu in 1998. In 2002, Mr George Nona researched traditional headdresses as an artist, living in Brisbane and Melbourne. He also spent two years living and researching art in Canberra. From 2008 to 2014, Mr George Nona lived on Kirriri (Hammond Island). He now lives permanently on Badu, working as an artist.
123 Mr Wolfgang Laza is not one of the Badulgal respondents, but he supports their contentions in this proceeding, although he is also a member of the applicant’s native title claim group. He gave his evidence on Badu.
124 Mr Wolfgang Laza’s father was Aidan Laza, which makes Mr Wolfgang Laza in European terms the brother of Geiza Stow. Mr Wolfgang Laza’s evidence was that Aidan Laza’s father’s name was Bagauer, who was the son of Bainu. I note the name “Bagauer” is slightly different to the name Ms Stow gave for her paternal grandfather, but nothing turns on this difference. According to Mr Wolfgang Laza, Bainu was the son of Wakie, who was the son of Baudu. Baudu’s father was Pithai, the son of the Badulgal apical ancestor Waii. In his evidence, Mr Wolfgang Laza traced his ancestry further back than Ms Stow did.
125 Mr Wolfgang Laza was born on 21 November 1965 on Waiben, but he was raised on Badu. When he was young, Mr Wolfgang Laza worked as a pearler in the Western Torres Strait, including in the area north-west of Ului. He started work for the Australian immigration authorities in 1996 and, aside from a period from 2000 to 2005, he has worked for the Australian Border Force ever since. He currently lives on Badu, on the same street as Mr Nomoa.
126 Pastor Walter Tamwoy is the fourth member of the Badulgal respondents. He gave his evidence on Badu.
127 Pastor Tamwoy’s father was Titom Tamwoy and his mother was Louisa Tamwoy (née Nona), both from Badu. His paternal grandfather was Taum, from Badu, and his paternal grandmother was Eccles, from Erub (Darnley Island). Taum’s father was Simi, a descendant of Pithi, from the Badulgal apical ancestors Waii and Sobai. Pastor Tamwoy’s mother’s father was Tipot (or Tipoti) Nona, from Samoa, and his father’s mother was Ugari Nona (née Usia), from Saibai.
128 Pastor Tamwoy was born on Badu on 11 March 1946. He was raised on the island and attended school there until 14 years of age. After school, he began work as a cook on pearling boats. At 16 or 17 years old, Pastor Tamwoy moved to mainland Queensland to work on the railways and in the fruit-picking industry. He then worked for eight years as a diver in the pearling industry, and then as a diver on crayfishing boats. In 1987, Pastor Tamwoy became a pastor in a Pentecostal church in Western Australia. He returned to Badu around 1991, where he still lives and works as a pastor today.
129 The Badulgal respondents’ fifth and final witness was Tommy Willie ‘Dinto’ Tamwoy. Mr Tommy Tamwoy is also the fifth member of the Badulgal respondents. He gave part of his oral testimony on Ului, and the remainder on Badu.
130 Mr Tommy Tamwoy’s parents were Titom and Louisa Tamwoy. He is the younger brother of Pastor Walter Tamwoy.
131 Mr Tommy Tamwoy was born on Waiben, but raised on Badu. He finished school when he was 14 or 15 years old, and started work as a deckhand on a pearling lugger. He worked throughout the islands of the Western Torres Strait, including at Cooks Reef, west of Ului. His work spanned many different luggers, including ones owned by Victor and Phillip Nona. In 1968, when he was about 21 years old, Mr Tommy Tamwoy moved to mainland Queensland to work on the railways. He continued this work on the mainland for about six years, which included a period of time in the Northern Territory. Mr Tommy Tamwoy returned to Badu in 1974 and has lived there ever since. He is now a crayfisher and although he was in his late seventies at trial, gave evidence that he still enjoys free-diving for crayfish.
132 The Court was invited by the applicants and the Badulgal respondents to undertake a view of several sites around Warral and Ului. The Court made an order pursuant to s 53 of the Evidence Act 1995 (Cth) to facilitate this course of action. It was agreed that the view would be conducted from the decks of boats navigating around the islands. The parties’ counsel and several witnesses who were to indicate specific sites during the view all travelled on one boat, although at one point the Court party and accompanying persons moved from the ‘Court boat’ to the ‘State boat’. Other legal representatives and witnesses followed on other boats. Other witnesses and claim group members followed in their own boats. My associate prepared a record of the view, including photographs of the sites that were pointed out by witnesses, GPS locations of the boat and bearings of the photographs taken and summaries of the descriptions or notes of the witnesses that were given during the view. The parties reviewed the record and confirmed that they took no issue with its contents. The record was then marked as exhibit A58.
133 The view was conducted over two days. On 13 October 2021, after hearing evidence on Ului, the Court was shown a beach on Ului’s eastern coast, which Mrs Adidi said contains the site of a former garden and Mrs Warria said contains a picnic site. Slightly south of that site the Court was shown a site at which Mr Savage said he used to crayfish and Mrs Warria said her father used to crayfish.
134 On 14 October 2021, the Court was shown several sites around Warral. First, the Court was shown a beach on Warral’s north-eastern coast, which Mr Nawia said contains the site of a campsite he once visited with his father, and the site of a garden his father once had on Warral. Second, Mrs Adidi showed the Court a crayfishing area in the water east of a reef off the eastern coast of Warral. Third, Mrs Warria pointed out a site she claimed to be Warrior Lookout, located approximately in the middle of Warral’s eastern coast. Fourth, on the south-eastern part of the coast, Mr George Nona showed the Court a site he said once hosted a garden of his great-grandfather. Fifth, at Warral’s southern tip, the Court was shown the two rocks said to be part of the Pithalai story, about which there is a factual dispute in this proceeding.
135 One rock, pointed out by Mrs Warria, lies in the water. The evidence also describes this as Squat Rock. On attachment 1, especially by the inset, it can be seen as lying outside the claim area, in the water. At 12.14 pm, when the Court visited the site, the tide was high and only a small part of the rock could be seen. Thomas Savage pointed out the other rock said to be Pithalai, on the southern beach of Warral, and indicated to the Court that there is a design painted on that rock.
136 Sixth, after visiting the Pithalai rocks and while off the southern coast of Warral, Mr George Nona identified all islands visible from the Court boat’s deck. Starting facing northwest and turning clockwise, the islands were described as Badu, Mua, Murbayl, Naghir, Wednesday Island, Horn Island, Goodes Island, Prince of Wales Island, White Rocks and Booby Island. Seventh, viewing the beach immediately west of the Pithalai rocks, Mrs Warria pointed out square rocks that she said were painted with designs. Eighth, further west of that beach, Mr George Nomoa pointed out a bay that he claimed was once occupied by his grandfather, Jackonia, and a woman named Mary.
137 Ninth, while the boat was off the south-western coast of Warral, Mr Nomoa identified the islands visible from deck. Once again in a clockwise rotation starting while facing northwest, these islands were described as Ului, Salgai, Jerry Island, Dadalai, Football Island, Duncan Island, Kanig, Mabag, Jackson Island, Kulbai Kulbai, Zurath and Sunswit. Tenth, while facing the south-western coast of Warral, Mr George Nona pointed out what he claimed was Warrior Lookout or Turanagai Dagamurr. Eleventh, and finally, Mrs Warria pointed out a creek on Warral’s western coast, which Mrs Warria says leads to a bay on the north-western coast. Mrs Warria told the Court that her brother once caught a dugong to the north of the site, and brought it back to a beach on the other side of the bay.
138 There was no challenge to the qualifications and expertise of any of the anthropologists called by the applicant and the Badulgal respondents. That position means it is unnecessary to rehearse their respective qualifications. There were submissions made on behalf of the applicant contrasting the experience of Mr Wood, Dr Hitchcock and Dr Murphy in this region with the comparative lack of experience of Mr Leo. The experiential difference in this region as between Mr Leo and the other experts can be accepted. That does not necessarily make material parts of Mr Leo’s evidence any less persuasive, as I explain. Where appropriate, later in these reasons I refer to the experience of Mr Wood, Dr Hitchcock and Dr Murphy when discussing their opinions.
139 Mr Wood has worked as a linguistic researcher, an anthropologist and a consultant for various organisations, including the Cape York Land Council and the TSRA. Over the past 26 years, he has produced more than 40 anthropological reports in connection with native title claims in this Court, including reports in relation to Waiben, Muralag and other Kaurareg islands, and Mua. In the Expert Report he prepared for this proceeding, Mr Wood referred extensively to his 2015 Report on Kaurareg Rights and Interests in the Waral-Ului Islands and Waters. Mr Wood has extensive experience with the Kaurareg People.
140 Mr Wood’s opinion is that the Badulgal, Mualgal and Kaurareg People form three parts of a single society, in the sense that term is used by the High Court in Yorta Yorta: see Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422. He considers there is a single society spread across a wider body of Torres Strait communities and united by a shared cultural history, including a unitary body of laws and customs governing rights to lands and waters. Mr Wood could not identify anything in the body of laws and customs of the three claimant groups that is not common to all three. Even if the Badulgal acquired exclusive control of Warral and Ului by conquest (an assertion Mr Wood did not agree with), Mr Wood’s opinion is that the seizure of lands by force does not form part of the single body of law and custom that gives rise to rights in land and waters in the Torres Strait. His view was that the expropriation of land by force was “unthinkable” as between members of the same society.
141 Rather, Mr Wood’s view is that the disputes between the Badulgal, Mualgal and Kaurareg People are attributable to political and personal rifts that can be traced back to the 19th and early 20th century. The colonisation of the islands created inequalities of political power, wealth, prestige and self-confidence between the three communities, which are the real root of disputes between the Badulgal, the Mualgal and the Kaurareg People, rather than any pre-colonial history of land contest in the region. Mr Wood also found ample evidence in the documentary material and testimony of the applicant’s lay witnesses to support a finding that all three groups extensively used Warral and Ului prior to colonisation.
142 Dr Murphy has worked as an anthropological researcher and consultant for a variety of organisations since 1996, and is currently the manager of the Cape York Land Council’s Anthropology and Research Unit. He has produced numerous anthropological reports in connection with native title claims in this Court, including three reports in Akiba. In Akiba Dr Murphy was examined and cross-examined over four days in February 2009. Dr Murphy was engaged on behalf of the applicant in Part B of the Torres Strait Regional Seas Claim proceeding in August 2013 (before the present proceeding was split off). As part of his retainer in that proceeding, Dr Murphy conducted a two-week field trip to Badu in July 2014, which included a visit to Warral and Ului in the company of some Badulgal men, a one-week trip to Ngurapai and Mua in October 2014, and a visit to Townsville and Innisfail with Alick Tipoti to interview Badulgal elders. Dr Murphy produced a connection report in September 2015, before visiting Badu and Mua again in 2016 to conduct genealogical research for the claim group description for the Badulgal and Mualgal in Part B of the Regional Seas Claim.
Key opinions
143 Dr Murphy’s opinion is that there is no evidence of substantial differences between the law and customs of the Badulgal, the Mualgal and the Kaurareg People; they belong to the same regional society as that identified by Finn J in Akiba. According to Dr Murphy, it is likely that all three claimant groups possessed traditional rights and interests in the claim area, none to the exclusion of the other two but taken together to the exclusion of other Islanders, with the possible exception of the Mabuiag People because of their interrelationship with the Badulgal. The position of the Mabuiag People about the islands of Warral and Ului was somewhat curiously absent from the evidence.
144 Dr Murphy’s view of the lay evidence in this proceeding, taken as a whole, is that members of each of the three claimant groups believe that Warral and Ului belong to their own group, but that none of them objects to members of the other two groups using the islands. Thus, Dr Murphy found nothing in the lay witnesses’ oral testimony which required him to change the views he had formed about shared ownership of the claim area.
145 Dr Murphy noted that available historical and anthropological evidence indicates that, at the time of the British declaration of sovereignty, and for several decades before then, there were hostilities between the Badulgal and the Mabuiag People on one side and the Mualgal, the Kulkulgal (of Naghir) and the people of Muralag on the other. However, Dr Murphy is of the opinion that the hostilities were not motivated by land acquisition, but rather by a series of raids and reprisals between the two sets of allies from the 1840s to the 1870s.
146 On the focus in the lay evidence on the establishment and significance of gardens on Warral (in particular) and Ului (to a lesser extent), Dr Murphy’s view is that in the early colonial period in the Western Torres Strait,
the fact that a person makes a garden in a place is no evidence at all that they own the land.
147 Like the other anthropologists, I consider Dr Murphy’s specific opinions in more detail later in these reasons.
148 Dr Hitchcock is a sociocultural anthropologist who has worked in the Torres Strait since 1999, including as a staff anthropologist at the TSRA from September 1999 to January 2003. Dr Hitchcock produced a 2005 connection report on Buru (Turnagain Island) and Warul-Kawa (Deliverance Island) for a Saibai, Dauan, Mabuiag, Badu and Boigu claim (which led to what I describe in these reasons as the first shared islands determination – see [233] below). He also produced a 2005 connection report about Badu and Mua which led to the Badulgal and Mualgal determinations, and a 2005 connection report for a second Mua native title claim (which led to the 2006 Mualgal determination). He has also produced reports between 2007 to 2009 for the Torres Strait Regional Sea Claim and a 2020 report on the Mualgal rights and interests in Warral, Ului and Sunswit, prepared to support of the inclusion of the Mualgal in the claim group. Dr Hitchcock is also engaged as a consultant anthropologist by the applicant in Part B of the Torres Strait Regional Seas Claim.
149 Dr Hitchcock’s filed report annexed a copy of his 2020 report on Warral, Ului and Sunswit.
Key opinions
150 Dr Hitchcock’s 2020 report expressed the view there was clear evidence that the Mualgal have a continued traditional connection with the claim area and can demonstrate that they hold native title rights and interests in the claim area. These rights and interests found expression in activities such as visiting and camping on the islands, hunting, fishing and foraging on the islands, consuming, sharing and trading resources from the islands, building, maintaining and using structures on the islands, travelling and regulating travel across the claim area, maintaining cultural sites and information in the claim area and asserting rights to perform these activities to the world at large.
151 His view is these rights and interests derive from a system of traditional laws and customs that is common to the Mualgal, the Badulgal and the Kaurareg People, often described by the modern-day terms gud pasin, ailan pasin or ailan kastom. Dr Hitchcock maintains these views in his 2022 report and states that nothing in the lay evidence adduced in this proceeding has caused him to change his views.
152 In the 3 May 2022 amendment to his report, Dr Hitchcock acknowledged that anthropological research published in 1904 describes one instance of the Mabuiag People’s conquest of land in Mua in the late 19th century, and that there is other evidence that the Badulgal gave the Mabuiag People land in recognition of assistance that they had rendered. However, Dr Hitchcock does not infer from this material the conquest of land in wartime formed a part of the customary system of tenure in the Torres Strait.
153 Mr Leo was called by the Badulgal respondents. He has worked as an anthropologist for the Northern Land Council, the Northern Territory’s Aboriginal Areas Protection Authority and the National Native Title Tribunal. Since 2010, he has worked as a consultant anthropologist, producing connection reports for mediation, expert reports for litigation, and various other reports, into 15 native title matters in Queensland. He also has extensive experience in Aboriginal cultural heritage protection. The Badulgal respondents filed an expert report by Mr Leo on 29 June 2022, to which each of the applicant’s expert witnesses provided a response.
154 Mr Leo’s report took a different form to the reports filed on behalf of the applicant. First, it was produced under considerable time constraints, not all of Mr Leo’s making, but related to the floods in New South Wales. Next, and of some importance, Mr Leo did not speak to any informants directly, whereas each of the applicant’s three experts had at some point(s) in time (mostly for some of their previous expert work) spoken directly and often at length to various informants from one or more of the three groups. What Mr Leo did was to review the material adduced by the applicant, and by the Badulgal respondents, including some of the most relevant previous expert reports (eg Michael Southon’s 1997 report on Kaurareg and Dr Murphy’s 2008 report for the sea claim) and the lay evidence. Mr Leo provided a critical assessment of the material. The applicant objected to Mr Leo’s report in its entirety. That objection was overruled. Further objections to parts of the report were also overruled and the report was admitted in its entirety.
Key opinions
155 Mr Leo’s opinion is that it is likely that a Badulgal ‘tribe’ or ‘clan’, plus certain Badulgal individuals, held rights and interests in Warral and Ului and the surrounding sea at the time of the British assertion of sovereignty. In his view, it is highly unlikely that any Kaurareg ‘land-owning entity’ held any such rights, and possible – but unlikely – that any Mualgal ‘tribe’, ‘clan’ or individual held any such rights at sovereignty.
156 His opinion is based on his understanding that the primary source material indicates that Warral and Ului were occupied, or at least regularly accessed, by Badulgal people prior to sovereignty, and that the Badulgal had a practice of acquiring land by force prior to sovereignty. He also draws on the lay evidence adduced in this proceeding, which he finds to be indicative of the Badulgal’s historical acquisition of land by force, and the continuance of Badulgal gardens on Warral and Ului since prior to sovereignty. Mr Leo also criticises the applicant’s expert evidence, which, according to Mr Leo, fails to prove that Kaurareg People enjoyed anything greater than contingent, usufructuary rights in relation to Warral or Ului prior to sovereignty, and erroneously understates the significance of the Badulgal’s warfare practices.
157 Mr Leo sees the lay evidence in this proceeding as indicating that Pithalai must be the rock in the sea off southern Warral, and so any Kaurareg spiritual emplacement does not extend to Warral.
158 Mr Leo also expressed a different view to the applicant’s three experts on the ‘society’ issue. His view is that both before and since the British assertion of sovereignty the regional society as explained in Akiba has included the Badulgal and Mualgal, but not the Kaurareg People. Mr Leo notes that the primary and distinctive feature of the regional society’s laws and customs relating to land is that they provide for communal and individual rights relating to gardens and natural resources, whereas Kaurareg laws and customs distinctively provide for communal rights in relation to places of spiritual significance. In his opinion, the intermarriage and consociation of the Kaurareg People and the Mualgal began in 1921, with the forced removal of Kaurareg to Mua, and did not result in the Kaurareg People adopting Mualgal laws and customs in relation to land and waters.
159 Finally, Mr Leo’s opinion is that since 1872, Badulgal society has adapted so that its basic units are no longer ‘patri-clans’ associated with specific totems and particular estates, but rather cognatic descent groups or ‘families’ who all belong to the same overarching group. While communal rights may once have been allocated within the estates of the various Badulgal patri-clans, contemporary Badulgal society collectivises communal rights between all Badulgal families. However, certain Badulgal families have ownership rights and interests in the gardens and groves their ancestors created on either Warral or Ului.
Some general findings about the expert evidence and my approach
160 The splitting of the lay and expert evidence, and the scheduling of the lay evidence first had some consequences which have been significant to my conclusions.
161 First, the lay evidence was not entirely consistent with what the three applicant experts sought to draw from either their previous work with informants in the region or from earlier reports. The three experts had various reactions to this situation, and various levels of familiarity with the lay evidence as given in this proceeding. Dr Murphy sat through all the lay evidence and had a high degree of familiarity with it. Mr Wood admitted in cross-examination that he hadn’t read all of the transcript of the lay evidence, and that he did not attend the lay evidence hearing. He said:
I’ve relied heavily on my past experience but in relation to the transcript I read all the evidence of the Kaurareg witnesses and a number of the Badu witnesses as well including Mr Ron Nomoa, Alick Tipoti, Troy Laza, a number of the others and bits and pieces of Enid Tom’s, obviously she’s Kaurareg, and chunks out of - particularly as, you know, they are referred to in other reports of the rest of it but I just simply didn’t have the time to go through the whole 1600 pages.
162 He also accepted he had focussed on the Kaurareg evidence.
163 Dr Hitchcock admitted he had only read the transcripts of the Mualgal witnesses. He said:
DR HITCHCOCK: When I received the bundle from David Knobel, I read - as I said, I went through all of the exhibits. I read all of the Mualgal ones and I skimmed through, I guess you’d say, the Badu and Kaurareg ones. I certainly did read some of the material, yes.
MR SMITH: You skimmed transcripts of the Badu witnesses?
DR HITCHCOCK: I read some of the material, not all of it due to time constraints.
MR SMITH: And did you read the - you skim read the transcripts of the Kaurareg witnesses; is that your evidence?
DR HITCHCOCK: If you want to put it that way, yes.
164 There were at least three features of the lay evidence which in my view stood out as somewhat inconsistent with the applicant’s expert evidence, and with its overall case. First, the prominence given in the Kaurareg evidence to the Waubin and Pithalai stories, and adhi, as the method by which Kaurareg People claim they have rights and interests under traditional law and custom in the islands. It appeared to me that, as part of advancing their ‘one society’ thesis, the applicant’s experts were keen to place less emphasis on these accounts, and more emphasis on ancestral occupation and use as a primary source of rights and interests under traditional law and custom, so as to better fit the position of the Kaurareg People into the findings of Finn J in Akiba, being the applicable law on how the 13 community groups in Akiba hold native title interests in land and waters.
165 Second, the almost complete absence of any lay evidence on behalf of the applicant which indicated that under traditional law and custom the members each of the three groups saw the islands as belonging to all three groups, and acknowledged the rights of others under traditional law. Instead, almost all of the applicant’s lay witnesses gave evidence that the islands only belonged to their group.
166 Third, the lay evidence about the Pithalai story did not all sit comfortably with the account that Mr Wood urged the Court to accept.
167 There were points at which it appeared to me the applicant’s experts, in particular Mr Wood, sought to encourage the Court to disregard the lay evidence it had heard, a situation I found somewhat unusual. That is, an anthropologist expressing a view that the Court should not accept the evidence of those people who either had in fact been their informants or were from the same group, where there was no suggestion they were not the right or knowledgeable people from that group, and where they had been specifically selected on behalf of the applicant to give evidence. For example, there was this exchange in cross-examination:
MR McAVOY: You are aware that throughout the course of this hearing there’s been a lot of evidence about whether Pithulai is a rock on top of a reef or a rock formation in the water to the south of Warral, often referred to as Squat Rock?
MR WOOD: I’m aware of that.
MR McAVOY: Are you aware that there was evidence from a number of people to the effect that the placement of Pithulai on the reef or in the water was significant in terms of the connection between the adhi and the island of Warral?
MR WOOD: I’m certainly aware that such an argument is put forward. I personally think that it was a bit of latter day extemporisation.
MR McAVOY: So you’re saying by the expression “latter day extemporisation” that you are saying that some people have embellished this story?
MR WOOD: No, I’m saying that that type of argumentation about “oh if Pithulai was – that island belonged to him, he would’ve come up and sat on the hill”, the great majority of boulders which are the metamorphous bodies of mythological actors, where they turn to stone and there are stone men, are actually right on the shorelines. Quite a lot of them are out in the water. Waubin himself is in the water. Farewell Rock at the Thothulay site on the north coast of Mua, I was shown that some rocks are on the land and some march out into the water.
168 While at other points, Mr Wood gave other explanations for the discrepancies – such as the questions the lay witnesses were asked – I am not persuaded by that explanation either. The forensic decision about what questions to ask witnesses was a matter for the applicant. Experienced and well prepared counsel adduced the evidence. Subject to some specific qualifications which I explain later in these reasons, I consider the lay witnesses gave honest and reliable evidence to the best of their ability. They were describing their country, their ancestors, their traditional law and custom, as they understood it and have been taught. There is no basis to place less weight on their evidence simply because it does not fit the hypothesis being advanced by the applicant, or by its experts.
169 Where there is a conflict between the lay evidence and the opinions of the applicant’s experts, I generally prefer the lay evidence as that is the primary evidence of those who say they hold native title in the islands.
170 There were some criticisms made by the applicant of Mr Leo’s evidence, especially his lack of field experience in the Torres Strait. The differences between Mr Leo’s experience in the field, and the experience of the applicant’s three experts can be readily accepted. Where fieldwork and long experience may objectively contribute to the weight to be given to an opinion, then generally I am satisfied I should prefer the opinions of the applicant’s experts, and/or those expressed by similarly experienced experts in the documentary material (such as Dr Beckett or Mr Southon).
171 However, Mr Leo’s opinion evidence performed a different kind of function. He undertook a critical analysis of the other expert opinion and the material it was based on. I found his approach helpful, and I found that he was ready to make reasonable concessions about his method and the material. I have accepted and relied on his opinions at some points in my reasoning on the separate questions.
172 On 16 October 2021, the applicant also tendered a book of excerpts from the transcript of the hearings in Akiba that the parties intended to rely on in this proceeding. There was no objection to the tender and indeed ultimately some of the other parties also relied on evidence from the Akiba transcripts. The evidence was admitted pursuant to s 86(2) of the NTA.
173 Running to 1,198 pages, the excerpts included passages from the testimonies of Nelson Gibuma (from Boigu), Fr John Manas (from Mua), Walter Nona (from Badu), Megai Warusam (from Saibai), Alo Tapim (from Mer), George Mye (from Erub), Bully Saylor (from Erub), Nelson Billy (from Warraber), Jack Billy (from Poruma), Kris Billy (from Warraber), Ethel Bob (from Warraber), George Lui (from Poruma), Kapua Gutchen (from Erub), Lizzie Lui (from Iama), Alick Seriba Tipoti (from Badu), Paletta Doreen (Sophie) Luffman (from Mabuiag), Lena Lillian Bosun (from Mua), Tom Jack Baira (from Badu) and Patrick Whap (from Mabuiag).
174 In Akiba the witnesses from the Western Islands were identified as Alick Tipoti (Badu), Paleta Doreen (Sophie) Luffman (Mabuiag); Patrick Whap (Mabuiag); Lena Lillian Bosun (Mua), Tom Jack Baira (Badu); Fr John Manas (Mua) and Walter Nona (Badu): see Akiba at [96]-[97]. The transcripts as tendered contained the evidence of other witnesses, but as it turned out, there were few passages of this evidence to which the parties directed the Court’s attention in final submissions. The point of the tender of so much of the Akiba evidence outside the witnesses I refer to in this paragraph escapes me.
175 I have given careful consideration to the Akiba evidence, especially that of the witnesses from the Western Islands. It should be given some real weight, as it predates the dispute in this proceeding and witnesses were giving their evidence in a different context. In that sense I consider it more objective. Akiba was mostly a proceeding that pitted claimants against government parties. This is a proceeding between claimants. The Akiba evidence is less affected by the deeply personal and acutely felt divisions that were apparent in the present proceeding.
176 In addition to the seven expert reports filed by the applicant and the Badulgal respondents in this proceeding, the Court had before it a total of 111 exhibits admitted into evidence. These exhibits included the 17 outlines of the evidence of the lay witnesses of the applicant and the Badulgal respondents, as amended and marked to indicate the passages in the outlines that were not required to be led orally. They also included various maps, photographs, documents and audio and visual media that were shown to the lay witnesses during oral examination or cross-examination. Many of the maps contained markings made by the lay witnesses to help illustrate their oral testimony.
177 Among the exhibits was a book prepared by the applicant of the maps and determination plans in the previous local determinations (exhibit A1).
178 In Akiba at [102], Finn J observed:
I would also emphasise that this case is uncharacteristically one in which there is, by comparison with the usual native title claim, an uncommonly large and informative historical record. Further, some at least of the islands have been the subject of extensive anthropological field work: on the evidentiary significance field work may have, see Gumana v Northern Territory (2005) 141 FCR 457 (Gumana TJ) at [156]-[161]. In these matters, but not only in them, the opinions of experts — anthropologists, historians, linguists and archaeologists — have an uncommon explanatory significance. Expert evidence from all four of these disciplines has been important in identifying the relevant “society”: see Neowarra v Western Australia [2003] FCA 1402 (Neowarra) at [395]. In this regard I would reiterate what Mansfield J said of anthropological evidence in Alyawarr TJ at [89]:
… [it] may provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgement and observance of traditional laws, customs and practices: per Lee J in Ward at first instance at 531. Not only may anthropological evidence observe and record matters relevant to informing the Court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences.
179 That observation can be applied to the evidence in this proceeding. Demonstratively of his Honour’s point about the amount of available material, the parties tendered two large bundles of material that had been referred to by the expert witnesses in the preparation of their reports, or was otherwise considered relevant. Exhibit A59 comprised eight export reports that had been prepared for other proceedings, and 20 documents or extracts of documents referred to by the applicant’s expert witnesses. It totalled 2943 pages and was accepted absolutely. Exhibit A67 comprised a further 140 further documents referred to by the applicant’s experts in their reports, as well as three documents referred to by Mr Leo in his report for the Badulgal respondents. It totalled 10,872 electronic pages and was also accepted absolutely.
180 Rather than attempt myself to summarise the extent of early ethnographic accounts and later research about this region, I respectfully adopt Dr Murphy’s summary of the research and documents produced about the Torres Strait by a range of people from the 20th century onwards. While his summary is lengthy, I reproduce it here because it gives a helpful picture of the range of work which is before the Court either as part of exhibit A67 or as annexures to the various expert reports (or both).
20th Century Anthropological Accounts
Following the Cambridge Expedition, it was another 60 years before any further anthropological research in Torres Strait, when Jeremy Beckett conducted doctoral fieldwork in 1958-61. Beckett’s PhD focused on local politics at Mer, Saibai and Badu in a social context that was profoundly affected by the intensive regulation of Islanders’ lives by authorities of the Queensland government. His research was centred on the issue of social change, and the engagement between Torres Strait Islanders and government, industry and church. Beckett has made several subsequent visits to Torres Strait and has also worked with Islanders resident in mainland Australia, and has published a book and numerous scholarly articles on a variety of issues relating to Torres Strait Islanders. Beckett was also an expert witness in the Mabo land rights case that established the existence of native title in Australian law, and in the TSRSC-A trial.
Shortly after Beckett’s initial fieldwork, the ethnomusicologist Wolfgang Laade spent an extended period in Torres Strait, and he collected some ethnographic information in the course of his research. He spent most of his time at Boigu, Dauan and Saibai, but he also travelled to several other islands and published articles on the mythology of the legendary hero Kwiam at Mabuiag, and Islanders’ traditions about the origins of their ancestors at several islands. Copies of his fieldnotes and other papers are held at AIATSIS, and there are some relevant notes pertaining to Badulgal, Mualgal and Kaurareg people in relation to Warral and Ului that are cited in this report.
Margaret Lawrie was a schoolteacher who published a volume of myths and legends from all of the Torres Strait island communities which she had recorded from senior people on each of the islands. She had no training in anthropology, but her publication provides versions of some myths associated with Badulgal, Mualgal and Kaurareg people that are useful in analysis of similarities and differences of versions recorded over time.
Nonie Sharp did a PhD in sociology at La Trobe University based on interviews conducted during several visits to Torres Strait from 1978 to the early 1980s. Her thesis was later written up as a book, Stars of Tagai, which focuses on cultural continuities, in explicit contrast to Beckett’s preoccupation with social change. One of her ten key informants, given the pseudonym “Uncle” in her book, was Wees Nawia, a Kaurareg man who lived at Kubin, another of her informants was a Badulaig man given the pseudonym Nau Mabaig. Sharp was closely involved in the preparation of the Mabo case, and has since produced several publications concerning Torres Strait Islander society and culture.
Several other anthropologists have conducted extended fieldwork in Torres Strait, some of whom have produced PhD theses, others scholarly publications. Many of these have produced materials that are relevant to consideration of the traditional laws and customs of the region within which the “relevant population” of Badulgal, Mualgal and Karuareg people are located. These include Judith Fitzpatrick (formerly Fitzpatrick-Nietschmann) whose fieldwork was at Mabuiag in 1976-77, along with her former husband Bernard Nietschmann who also produced relevant publications. Maureen Fuary did doctoral fieldwork at Yam Island in 1980-82, completed her PhD thesis in 1991, and has published some scholarly articles concerning Torres Strait Islander society and culture. David Lawrence’s 1989 PhD thesis was on the system of traditional trade throughout Torres Strait and adjacent mainlands, and involved both archival and field research in Torres Strait and mainland Papua New Guinea. He has published several scholarly articles on the traditional trading system of Torres Strait Islanders.
Richard Davis did fieldwork at Saibai in 1992-93, and produced a PhD thesis and several academic publications. Julie Lahn did doctoral fieldwork at Warraber in 1996-97, and submitted her PhD thesis at James Cook University in 2003. The husband and wife team of Colin Scott and Monica Mulrennan have made several research visits to Erub from 1996, and published several academic papers from this research, including some concerned with Torres Strait Islanders’ traditional ecological knowledge, marine resource management, and customary land and marine tenure. Scott was also an expert witness in the TSRSC-A trial.
Michael Southon worked with Kaurareg people to assist them in the preparation of a native title claim over some of their islands, and co-authored a publication with Kaurareg elders on Kaurareg customary marine tenure; this publication has direct relevance to the question of who holds native title rights at Warral and Ului.
Linguistic research
Sidney Ray, one of the members of the Cambridge Expedition, was the first linguist to conduct research in Torres Strait, and he was the primary author of Volume 3 of the Reports.
Anna Shnukal is a linguist and historian who has worked in Torres Strait since 1981. She has made many field visits, and published extensively on Torres Strait Creole language, and the colonial history of Torres Strait Islanders.
The husband-and-wife team of Rod and Judy Kennedy conducted long term linguistic fieldwork at Saibai during the 1970s under the auspices of the Summer Institute of Linguistics. Their publications are based on their extensive field research, and include some perceptive insights into Torres Strait Islander society and culture, including their normative system.
Nicola Piper is a linguist who produced an MA thesis on the Miriam Mir language at the Australian National University, and she also gave evidence in the TSRSC-A trial. Rod Mitchell is a linguist who produced an MA thesis focussed mainly on the Western Torres Strait language at James Cook University.
Dana Ober, a Saibailaig man, trained in linguistics at the Australian National University, and has co-authored publications on Kala Kawaw Ya, the dialect of the Western Torres Strait language spoken in the North-Western Islands. Ephraim Bani, from Mabuiag, trained in linguistics and anthropology at the University of Queensland, and published numerous articles in the local Torres Strait newspaper, the Torres News. He published a couple of brief scholarly papers, and he also produced several unpublished manuscripts on the languages, culture and society of Torres Strait.
Archaeological research
Over the last 25 years there has been extensive archaeological research in Torres Strait, which, building on the data obtained since the 1970s, has led to well informed hypotheses regarding the long term occupation history of the region.
The earliest professional archaeological research in Torres Strait dates from the early 1970s, with Ron Vanderwal working on several islands, including Muralag, Badu and Mua, in 1972, while David Moore, in a separate project, excavated sites at Muralag and Somerset in 1971 and 1973.
In the 1980s, David Harris, Tony Barham and Barbara Ghaleb conducted archaeological research at several of the Torres Strait islands, including Mua, Muralag and Mabuiag. Mike Rowland worked at Mua and Naghi in 1981, and Ron Coleman and Richard Robins surveyed Niangu (Booby Island) in 1985 and 1990.
The Murray Islands Archaeological Project commenced in 1998, with Peter Veth, Doug Bird, Rebecca Bleige-Bird and Melissa Carter publishing a substantial number of academic papers, and with significant archaeological data.
From 2000, archaeologists Ian McNiven and Bruno David commenced working in Torres Strait, and they have led several projects since then, still ongoing, and have supervised several PhD candidates through research focussed in Torres Strait, including Liam Brady, Duncan Wright, Joe Crouch, Jeremy Ash, Cassandra Rowe and others. McNiven gave evidence in the TSRSC-A trial in the form of three reports, but was not called to give oral evidence.
Historical research
Several historians have published accounts of pre-colonial Torres Strait Islander society, including Steve Mullins, Regina Ganter and David Moore. Mullins produced two reports that were filed as evidence in the trial of the TSRSC-A.
(Footnotes omitted.)
181 The importance of the work undertaken by Dr Jeremy Beckett should be noted, especially since Dr Beckett passed away in December 2022, much to the sadness of many members of the Torres Strait communities who knew him, and to the sadness of his colleagues.
182 A large aerial map of the Torres Strait Islands, obtained from the National Native Title Tribunal, was tendered at the request of the Court (exhibit C1). While the applicant’s counsel emphasised this map did not show all of the islands of the Torres Strait, it did show all of the Torres Strait region. I have found it very useful as a general reference to understand the geography of the region of the Torres Strait, to understand the places referred to in Akiba, and to understand references in some of the ethnographic and research evidence tendered in this proceeding.
183 Also admitted was a complete physical copy of David R Moore’s book Islanders and Aborigines at Cape York (Humanities Press Inc, 1979). In its subtitle the book is described as “An ethnographic reconstruction based on the 1848–1850 ‘Rattlesnake’ Journals of O.W. Brierly and information he obtained from Barbara Thompson”. In the preface to the book, Dr Moore describes his objective, commencing around 1963, of collecting and collating all the information he could find about the “tribes about Cape York”. Dr Moore describes how he came to understand the significance of the manuscripts of O.W. Brierly, an artist who journeyed through the region on the HMS Rattlesnake during the period 1848–1850. He states:
The particular relevance of the Brierly manuscripts is that, in addition to recording detailed observations and linguistic material on the mainland Aboriginal groups, he interviewed in much greater depth than anyone else a young Scots woman called Barbara Thompson, sole survivor of a wreck in Endeavour Strait late in 1844, who lived with the Kaurareg people of the Prince of Wales group of islands for nearly five years, until her rescue by the Rattlesnake expedition in October 1849.
184 Dr Moore describes his aim of keeping the transcripts reproduced in the book in a form as close as possible to the original.
185 While initially the parties might have been content with excerpts from Dr Moore’s book, I considered on reflection by the end of the trial that it was preferable for the whole book to be tendered, so that any particular passages had their full context. No party objected to this course.
RIGHTS IN HOME OR INHABITED ISLANDS, RIGHTS IN UNINHABITED ISLANDS AND RIGHTS IN THE SEA: THE UNIQUENESS OF THE TORRES STRAIT
186 In his evidence in Akiba, Mr Alick Tipoti gave a useful overview of the peoples of the Torres Strait:
ALICK TIPOTI: Now, Torres Strait I see through my eyes, what I’ve been educated by my elders, is, they are groups of islands in the Torres Strait. The Top Western Islands, in our language we call it Guda Maluiligal, G-u-d-a M-a-l-u-i-l-i-g-a-l. That is Boigu, Dauan and Saibai. Then you come to the Western Islands, the Mid Western Islands, which is Maluiligal, Badu, Moa and Mabuaig. And then you go to the Kulkalgal in the Central, Naghir, Iama, Warraber, Poruma, Masig; and then you go to Kemer kemer Meriam, which is Murray Islands, Erub and Ugar.
187 He did not include Kaurareg, however the explanation for that might be the contextual setting of the then only Part A sea claim, by the time Mr Tipoti gave his evidence. Or, there may be a more substantive reason.
188 In the expert report he prepared in support of the consent determination over the home island of Badu in 2000, Dr Kevin Murphy gave this helpful description of the geology and geography of the Torres Strait. He repeated it to some extent in his expert report filed in this proceeding. These extracts are from Dr Murphy’s 2000 Badu report, and I accept the opinions there expressed (at pp 3-4):
History of Torres Strait
Before the impact of colonialism
The Torres Strait was formed around 8000 years ago when the area between what are now the Australian and Papua New Guinean mainlands was submerged by rising sea water levels after the last ice age. There are over a hundred islands throughout Torres Strait, and each can be described in geomorphological terms as belonging to one of four types: in Eastern Torres Strait there are small, fertile volcanic islands; the Central region is made up of small infertile islands built up on coral reefs; in the Northwest are large swampy islands made from alluvial soil carried down the rivers of the Papuan mainland; and the islands of Western Torres Strait, including Badu, are those parts of the Australian Great Dividing Range that remained above the new sea level when the land bridge between Australia and Papua was submerged.
There have been people living on the islands of Torres Strait for at least 2000 years. Little is known about the people who were there at that time and before, but when Captain Luis Baez de Torres sailed through the strait that now bears his name in 1606 he reported seeing people who had turtle shell masks, outrigger canoes, and bows and arrows (Hilder 1980). Beckett notes, ‘there can be little doubt that these were the ancestors of today’s Torres Strait Islanders’ (1987:25).
The economy of the Islanders involved hunting for terrestrial and marine animals, fishing, gardening, foraging for wild vegetable foods, and trade in a wide array of manufactured items and ceremonial objects. Foodstuffs were also extensively traded between people from different islands according to the specialisations that developed out of the opportunities and restrictions inherent in the variety of ecological zones throughout the Strait.
Badulgal, indeed all Torres Strait Islanders, were a maritime people, obtaining large canoe hulls from neighbouring Papua and combining them with the double outrigger technology for which the Islanders were renowned. This technology enabled them to exploit the rich resources of the shallow reef strewn waters of Torres Strait, to travel from their home islands to outlying small islands to garden, hunt and forage, and most importantly, to participate in an extensive network of trade relationships stretching from well down Cape York Peninsular on the Australian mainland to the Papuan coast and including all islands in between (cf Lawrence 1994). The canoes also allowed another, less friendly form of communication between neighbouring groups, being warfare.
On the basis of cultural and linguistic affinities and differences the islands of Torres Strait can be distinguished at a number of levels of inclusiveness. In some respects it makes sense to group the whole of Torres Strait together, particularly in light of developments since the 1860s when sustained contact with Europeans, Pacific Islanders and others commenced in earnest. The main distinction in pre-colonial times was between the fertile volcanic Eastern islands on the one hand and the rest of Torres Strait on the other. The people of the Western and Central groups of islands speak various dialects of Kala Lagaw Ya, while those of the Eastern group speak Miriam Mir.
Further discrimination divides the Torres Strait Islands into five regional groupings. As illustrated on the map at page 5, these groups are known as Eastern, Central, Top Western, Central Western and Inner Western. Within each of these groups there has been and still is a good deal of inter-marriage and residential mobility. Although ideally a newly married couple should establish an independent household, there is no simple tule of residence, their choice depending on a number of social and economic contingencies. So when they come from different islands they may choose to live with the wife’s family, the husbands, that of a close relative of one of them, or somewhere else altogether. Consequently families have members spread among many islands, and given the high degree of intermarriage within each of the groups of islands, dense networks of kin and affines link the people of each together.
(Original emphasis.)
189 An account of the geography of the Torres Strait is also given by Finn J in Akiba at [18]-[22]. That account is consistent with the evidence in this case, and I respectfully agree with it.
190 In my view, it is critical to understand at least the broad propositions about the geology and geography of the Torres Strait region as a whole, and how it came to be settled. These are matters to be borne in mind in assessing the more specific evidence about the claim area. The assessment of how native title exists in the Torres Strait region is unlike the assessment that applies to any other region of Australia. The differences can be explained at least in part by its geographic features and what this means for the way people live and sustain themselves in an island region, and have done so for more than 2000 years.
191 The people of this region, and the way they have interacted with the environment in which they live, are unique. Since the advent of native title, a consequence of this unique way of life has been the need to articulate characterisations of rights and interests in home islands, in uninhibited islands and in the sea. If one steps back and reflects on the whole of the lived experiences of people in this region, and how they depend on, interact with and use their environment, especially their marine environment, the challenges in articulating such characterisations are apparent. Nevertheless, the different ways people may see their traditional rights and interests in different parts of their environment is also entirely understandable in a region such as this.
192 This is not a sea claim; it is a claim to land above the mean high water mark at spring tide. Warral and Ului are best described as uninhabited islands. They are not ‘home islands’. They are like surrounding islands such as Dadalai, Tuin, Zurath and Murbayl, islands where people may stay for short periods, or where historically and occasionally, individuals may have lived for longer periods. Predominantly they are islands that people will visit, for a range of purposes.
193 However, they are also bigger than many of the other uninhabited islands. This is especially true of Warral. There was little or no evidence about use of the hinterland and central parts of either island. The country in the centre of Warral is mountainous and rugged. There was some evidence about specific sites towards the top of Warral, but in general the evidence concerned occupation and use of the flat sections of Warral, locations where there are wells, and use of the beaches and the land just behind the beaches. The same is true of Ului, although as I explain there was proportionally much less evidence in general about Ului.
194 Although this is not a sea claim, the Court heard a lot of evidence about the use of the sea, and the exploitation of its resources since pre-colonisation, not just for sustenance but also for trade. That evidence needs to be taken into account in understanding what is meant by “occupation” and “use”, in the context of uninhabited islands, or non-home islands. In that sense it is important to recall the findings of Finn J in Akiba at [638]-[640], [642] and [651]:
Certain matters are, in my view, beyond serious question notwithstanding the State’s contrary contentions on some of them. First, the primary holding groups of marine estates are the group members of the individual island communities. Such estates are held severally by an island community or, for certain areas, are shared. The estates radiate out from the inhabited islands which provide the primary point from which the extent of the estates are respectively measured.
Secondly, there is no land-sea dichotomy. The evidence clearly establishes that the estates are spatially projected out from the shores; they do not stop at the edge of fringing reefs or when deep waters are met. I accept the Islanders’ evidence on this and reject the State’s “adjacent areas” contention to the contrary. Areas of deep waters, no less so than shallow ones, are claimed and used.
Thirdly, save for the extremities of the claim area, a “tenure blanket” covers Torres Strait. Under the Islanders’ laws and customs, a community’s estate extends outwards until it meets the estate of another community in what characteristically is a shared area. I have referred to various indicia that are used to identify the boundaries of marine estates and will not repeat them here. I accept the expert evidence, which was supported by some Islander evidence, that there are no “gaps” between marine estates. Everything is considered to be owned. There is no “commons” open to all, although certain areas may be widely shared, be this shared ownership or, more commonly, shared use by a number of communities. I would, for example, instance the sharing of their respective open waters in the Top Western area by Boigu, Dauan and Saibai and the extensive sharing of often distant areas by the Central Islands and by Masig and Erub and Mer.
…
Fourthly, I am satisfied that the Island communities have had, and do have, differential regard for the areas of their marine estates as they radiate outwards. To paraphrase Professor Scott, the nearer one is to the shore, the greater the intensity of feeling about defending one’s estate, the further from it, the easier the acceptance of comingling and of having overlapping or shared rights with neighbouring communities.
…
Professor Beckett referred to “the essentially maritime character of the Islanders’ occupation of the region”. I accept this characterisation. It is reflected in much of what they have done and do. It is reflected in the rhythm of their lives. And it is both presupposed by, and suffuses, much in their laws and customs. To give minor examples, I have found feasting to be a custom of the Islanders. Not only are feasts marked by the sharing of seafood with an emphasis on turtle and dugong, they also are often related directly to marine events such as a child’s first turtle or first dugong. As Professor Scott put it, the sharing of seafood “is inscribed in ceremonial life generally, and in traditional rites of passage”. I equally have found there to be laws and customs relating to song and dance. The Islanders’ evidence demonstrated that both song and dance have an obvious marine orientation and often embody maritime knowledge or relate to particular marine areas. I have not found that song and dance can be used to solve the Geography issue. However, I do consider that they are activities that in a general way reflect the reality of Islander connection to their waters.
195 Those findings are consistent with the evidence in this proceeding and I respectfully adopt them.
196 Justice Finn’s findings at [639] above are consistent with Dr Murphy’s opinion in his 2015 Warral and Ului report at [150]:
Uninhabited space is made into occupied place by human activity. In procuring resources to sustain their livelihood and in order to engage in the full range of social practices, Torres Strait Islanders’ activities occur on land, sea and intertidal areas. Activities by which Islanders occupy places are not limited to practical or physical actions; they also include the assertion, negotiation and recognition of rights and interests in particular places. In my understanding, there is no essential difference between land and marine tenures in Torres Strait Islander law and custom; land, sea and intertidal zone are all subject to human occupation. For Torres Strait Islanders, historical occupation by ancestors, and ongoing occupation by their descendants, is the fundamental basis of the assertion, negotiation and recognition of rights and interests in all types of places; land, sea and intertidal.
197 I accept that opinion and consider it of some significance in the resolution of the separate questions.
198 The population levels in the Torres Strait region should also be borne in mind. Comparatively, the region was not intensely populated. In his chapter on “Mission, Church and Sect”, Dr Jeremy Beckett says (at 152):
At the beginning of intensive contact — around 1860 — they numbered some four thousand, falling to about half that figure by the turn of the century, but thereafter increasing to a present figure in excess of eight thousand.
199 More specifically, in his 2000 Badu report, Dr Murphy’s view (which I accept) is:
On population numbers, Mullins (1995:234;fn64) writes ‘there are no early figures for Badu but it is unlikely the population exceeded 200 before the measles epidemic [of 1875]; in 1907 it was a little over 200 (Evidence of F. Walker to 1908 Royal Commission, p.206.)’. Mullins (1992) considers three sets of population estimates of Torres Strait prior to circa 1871 — those of Beckett (1972), Harris (1979) and Beckett (1987). He concludes that the population of Badu was 150-200 and Mabuiag was 300.
200 In assessing the evidence, I consider it important to look at the Torres Strait region as a whole in terms its geographic and seasonal features, and what the evidence reveals (as Finn J explained) about ownership radiating outwards from the home islands of various groups. I consider the geographic and seasonal features, including the way that pre-colonisation various groups had to navigate through the seas, and the purposes for which they did so, informs the correct view of the evidence about ownership of the two islands pre-colonisation. The evidence about navigation throughout the region – both navigation for the purpose of moving between inhabited islands, and for the purpose of gathering and accessing marine resources – is in my opinion contributing evidence to the question of ownership. There are examples in this proceeding, and also in Akiba, where particular groups are recognised as ‘owning’ uninhabited islands, or reefs or cays, some distance away from their home islands, because those areas are ones that, traditionally, have been used and occupied by a particular group and are recognised as therefore belonging to that group. The reasons why this is the case are likely to be closely related to matters such as weather, seasons, currents, winds, kinds of marine resources available to a group, what those reefs, cays or islands provide, landscape features of those places and mythological or ancestral significance. Thus in looking at the evidence about Warral and Ului, I have attempted to still retain a regional focus as well.
201 Before leaving this section, it is important to mention something about the role played by the Mabuiag People in the Western Torres Strait. No people from Mabuiag gave evidence in this proceeding, although Mr Repu, the interpreter, is a Mabuiag man. Mabuiag featured as the predominant place of study for Haddon, during the Cambridge expedition. See Haddon A C (ed), Reports of the Cambridge Anthropological Expedition to Torres Strait (Cambridge University Press, 1935). Many Badulgal not only have connections to Mabuiag but their ancestors came from Mabuiag to Badu. There is less connection between Mabuiag and Mua. As the experts recognise, in pre-colonial times there was something of an alliance between the Badulgal and the Mabuiag People, against the Mualgal and the Kaurareg People.
202 In Akiba, the Badulgal elder Mr Tom Jack Baira gave obviously heartfelt evidence about the importance of Mabuiag in the history of the Torres Strait:
TOM JACK BAIRA: I see - crocodile on Boigu, Dauan, Saibai, Yam Island, Coconut, Warraber, Masig, at Yorke. I still see them crocodile on those island. Because their branches are from Mabuiag.
MS WEBB: Yes.
TOM JACK BAIRA: Like, this is the Mabuiag, is the branches going out, see?
MS WEBB: Yes.
TOM JACK BAIRA: That’s where our ancestor was getting married, they going out.
MS WEBB: Yes. That was that old lady - - -
TOM JACK BAIRA: Yes, when you - when you coming back, follow that family tree, you going back and you still based on Mabuiag.
MS WEBB: Yes.
TOM JACK BAIRA: Mabuiag is the light on home island of Torres Strait.
MS WEBB: Mabuiag is the home island of the Torres Strait.
TOM JACK BAIRA: All mother land. It’s mother land.
THE ROLE OF PREVIOUS LOCAL DETERMINATIONS IN ANSWERING THE SEPARATE QUESTIONS
203 Since 1992, a series of determinations, mostly by consent, have recognised a range of rights and interests in the Torres Strait islands and waters, ranging between rights and interests in ‘home’ islands, in uninhabited islands or in the sea. Most were made before the contested determination in Akiba, although some came after it. The significance of prior consent determinations over land within the sea claim area before him was also a matter Finn J had to consider in Akiba: see [147]-[159].
204 The determinations of course reflect the content of the various native title applications including any area or group limits on those applications, and connection material prepared in support of them. As I said to the parties during final submissions, one of the challenges for the Court in this proceeding is to ensure its reasoning and conclusions are compatible with those previous determinations about native title in the Torres Strait, unless there is a rational, reasonable and probative basis for a determination which might otherwise be, or appear, incompatible.
205 To be specific, the questioning that emerged during the hearing, especially about the islands of Dadalai and Sunswit, may suggest some apparent incompatibility in the shared ownership claim. Sunswit is not the subject of a current native title application, and was consciously omitted from the shared ownership claim, despite it being all but physically connected to Warral.
206 Dadalai is part of the second shared islands determination (see below) in favour of Badulgal and Mualgal. It is so close that three lay witnesses (Thomas Savage, Naton Nawia and Ronny Nomoa) gave evidence you could swim from Warral to Dadalai. The cross-examination of both lay and expert witnesses about Dadalai (especially by the State) illustrated a potential incompatibility in the shared ownership claim. I do not consider that incompatibility was ever properly or satisfactorily explained in the applicant’s evidence or submissions. The State submitted:
No lay witness could provide any explanation as to why Warral under traditional laws and customs would not be owned by the same people who owned Dadalai.
207 I accept that submission. The incompatibility of the shared ownership claim with the second shared islands determination is of material significance in my reasoning.
208 There are other determinations which demonstrate that ownership of uninhabited islands is not always shared.
209 Although the reasons of the Court in the previous consent determinations are often brief, some of the decisions involving Badulgal and Mualgal rely extensively on anthropological reports prepared by two of the witnesses in this proceeding: Dr Hitchcock and Dr Murphy, as well as Dr Fiona Powell, whose report was tendered in this proceeding. I consider previous determinations involving uninhabited islands are of considerable importance in assessing the competing arguments in this proceeding. They do not control the outcome, as the Court must assess the evidence adduced in this proceeding, and be mindful to examine how it applies to each of Warral and Ului.
210 The Kaurareg determinations rely on connection reports prepared by Mr Southon and Mr Wood, which were tendered in the separate question proceeding. The evidence and reasoning in these determinations, and the connection reports supporting them, must be examined for their consistency with the position put on behalf of the Kaurareg People, through the applicant, in this proceeding. While any lack of consistency might be explicable, and not fatal, it might also be a marker supporting the arguments of the Badulgal respondents or the State.
211 In Mualgal People v State of Queensland [1999] FCA 157 (the 1999 Mualgal determination), this Court determined, by consent, that native title exists and is held by the Mualgal in relation to Mua Island, except in certain limited areas on the island, which include public schools and landing ground for aircraft. Mua had been the subject of two deeds of grant in trust under the Land Act 1962 (Qld): one to Kubin Island Council, the other to the St Pauls Island Council. The common law holders were defined by reference first to descendants of specified apical ancestors, and second by reference to “such other persons” as those descendants “regard as being members of the Mualgal people provided each is a ‘Torres Strait Islander’ or a member of the ‘Aboriginal peoples’ within the meaning of those terms in the Native Title Act 1993 (Cth)”. Traditional rights of non-Mualgal were recognised, for example:
the interests of indigenous Papua New Guinea persons in having access under Ailan Kastom to the determination area for traditional purposes[.]
212 The 1999 Mualgal determination was the first native title determination in the Torres Strait since the common law decision of the High Court in Mabo (No 2), and the first determination in the Torres Strait under the NTA. The Court decided the native title rights and interests were to be held by the common law holders, and a representative of the common law holders was to nominate the Mualgal Torres Strait Islanders Corporation to be the prescribed body corporate.
213 In Manas v State of Queensland [2006] FCA 413 (the 2006 Mualgal determination), this Court determined, also by consent, that native title exists and is held by the Mualgal over numerous uninhabited small islands, islets and rocks located in the vicinity of Mua. At [14] of the reasons for the determination, Dowsett J held:
… the objective facts of the case demonstrate the probability of continued connection between the people resident on Mua and the various islands, islets and rocks in the determination area. The Mua people were, and are, seafarers, able to travel to these features and further afield. There was, and is, good reason for them to visit them on a regular basis. Food is available there. It would be inconsistent with one’s experience of human nature if, over the centuries, successive generations had not come to view these islands, islets and rocks as their own. No doubt, over those same centuries, there have been challenges to their claims, but any such challenges must have been resolved in favour of those of whom the claim group are successors.
214 The islands covered by the 2006 Mualgal determination were mostly to the north east of Mua. However, two were to the south, and thus to the east of Warral. The two to the south were identified in the determination maps as Muknab Rock and Channel Island (Murbayl). The Mualgal were recognised as having exclusive possession of these two islands (as they were with all the islands in the determination): see [2] and [4] of the Court’s reasons for the 2006 Mualgal determination.
215 Acceptance by the State of native title in these islands (and also by the Court) was based, as Dowsett J recognised at [7]-[13], on a report by Dr Hitchcock, building on the work done by Dr Powell in support of the 1999 Mualgal determination.
216 Dr Hitchcock’s report was tendered in this proceeding. Muknab was said to be used by Mualgal for collecting trochus. Dr Hitchcock’s view was that although trochus is found in the sea:
the implication is that the adjacent islands are frequented when people carry out fishing for them. Such behaviour is confirmed by Mualgal elders Oza Bosen, Fr John Manas and Joshua Nawie, as well as by participants in a joint sitting of the Kubin Island Council and Mualgal (Torres Strait Islanders) Corporation on 4 April 2005, at Kubin.
217 He then said:
It should be clear from the foregoing account that the claimants voyage to, and set foot upon and occupy, the claim area. Such visitation is regulated by seasonal weather conditions and resources, distance and the physical characteristics of the claim area. Nonetheless, this is a traditional right that has been exercised by the traditional owners since before the assertion of British sovereignty (witness Bligh’s crew finding evidence of visitation at Kulbi in 1792), and one that has continued up to today.
218 As to Murbayl, Dr Hitchcock said:
Of the places claimed here, Murbayl lay directly on the route between Mua and Muralag of the Kaurareg. Mualgal informants state that today that, in addition to their use of Murbayl as a camping place from which to exploit its reef, this island is still a staging point for trips, now undertaken by dinghy, between Kubin village and Thursday Island.
219 I note there was little evidence given in this proceeding by Kaurareg or Mualgal witnesses to this effect, although there was some in the Akiba evidence. Pastor Kaitap did give some evidence to this effect.
220 Dr Hitchcock also noted the island was used for crayfishing.
221 There was no attention paid in this proceeding to the status of Murbayl. It is not very far to the east of Warral, and not much further east of Warral than Ului is west of it. Like Warral, Murbayl sits to the north of the three reefs that must be crossed, or circumnavigated when boats are coming from the Kaurareg home islands.
222 Of some significance to the present proceeding, Dr Hitchcock also expressed the opinion that:
As previously mentioned, under the terms of Gud Pasin, the modem-day gloss for the normative system of traditional law and custom of Torres Strait Islanders, outsiders (non-members of the claimant group) are expected to seek permission before visiting these islands from elders. Some members of the Kaurareg and St Pauls communities may, however, visit the islands without first seeking permission from Mualgal, where these people identify as Mualgal on account of having Mualgal apical ancestors, and are accepted as such by the wider Mualgal community.
223 He was not cross-examined about this opinion in the present proceedings, although there was some general cross-examination about gud pasin and permissive use. I infer it remains his opinion but it is another example of a matter not brought to the front of the debate in the present proceeding as a possible explanation for Kaurareg use of the present claim area.
224 In terms of the Court’s objective of compatibility with previous determination, absent a persuasive justification for incompatibility, the significance of this determination in favour of the Mualgal people only, especially in relation to Muknab and Murbayl, is that it is clear that in the Western Torres Strait region there are uninhabited islands that are recognised as belonging only to one group. That is so even though, as part of gud pasin, other groups may use them, especially for the purposes of travel or gathering resources. That may occur without permission being sought, depending on the closeness of family relationships. What in my opinion this determination demonstrates is a rebuttal of an underlying theme that emerged from time to time in the applicant’s case; namely, that simply because of their geographic location more or less equidistant from the three islands, and because of post-colonisation patterns of use of them, Warral and Ului should be understood to be, under traditional law and custom, the subject of shared traditional ownership. The situation with Murbayl and Muknab emphatically demonstrates that is not necessarily the case.
225 In Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578 (the Badulgal determination), this Court determined, by consent, that native title exists and is held by the Badulgal in relation to Badu Island, except in certain limited areas on the island. At [9]-[11] of the reasons for the determination, Cooper J held:
… before the impact of colonialism, the available evidence indicates that the Badulgal society was organised into ‘totemic clans’ with the basic building blocks of social organisation being patri-clans with membership normally inherited from the father. While tracing the date of the first indigenous inhabitation of Badu Island has not been an easy task for anthropologists, it is well known by the Badulgal themselves in their oral history, as well as in the written historical record, that their ancestors were at Badu long before the assertion of sovereignty by the British Crown in 1872.
The Badulgal were, and continue to be, a maritime people living off the land and waters and engaging in trade with neighbouring island communities. The first European contact with the people of the Torres Strait came in 1606 when Captain Luis Baez de Torres sailed through the strait that now bears his name. Murphy records that after Torres’ passage through the Strait, there was very little in the way of European traffic until the establishment of a British colony at Port Jackson in the colony of New South Wales, and the charting of a safe passage through the dangerous waterway by Captain Bligh in 1792, made the Torres Strait a regular route for ships travelling between Asia and the Pacific, and the new colonies in Australia.
As the documentary evidence shows, the Badulgal still maintain a system of traditional land ownership which is continuous with the system as it operated before sovereignty. Relationships within the Badu Island community are expressed in the idiom of kinship and identification with a particular family provides the main avenue by which any individual claims ownership of land. The continuing connection between the Badulgal and the determination area is well recognised.
226 At [4], Cooper J notes that the Badulgal claim originally included Warral and Ului. It also included other uninhabited islands that were to become the subject of the second shared islands determination with Mualgal, including Dadalai but not including (at least expressly) Sunswit.
227 The connection report for this determination was prepared by Dr Murphy. It is dated 2000. That report was tendered in this proceeding. In the introduction to that report, Dr Murphy explains the withdrawal of Badulgal-only claims over Warral, Ului and other islands in the following way:
The current native title application covers the island of Badu and a number of outlying uninhabited islands, including Warral and Ului. This report applies to all of these islands except Warral and Ului, which will be the subject of a separate report. The reason for this is that the claim to Warral and Ului is contested by the neighbouring Kaurareg people, while the rest of the claim is uncontested by neighbouring groups. A number of small islands between Badu and Moa were until recently claimed exclusively by Badulgal and Mualgal, but both groups have acknowledged the interests of the other and have agreed to withdraw their overlapping claims and lodge a new claim on behalf of the two groups combined. This claim will also be dealt with in a separate report.
228 A report about Warral and Ului by Dr Murphy is before the Court. It is dated September 2015. This seems a long time after Dr Murphy made this statement in the introduction to his 2000 Badu report. It is unclear whether there was an earlier report by Dr Murphy about Warral and Ului. If there was, it has not been produced.
229 In Kaurareg People v State of Queensland [2001] FCA 657, this Court made five consent determinations in favour of the Kaurareg People in relation to Ngurapai (also known as Horn Island), Muralag (Prince of Wales Island), Zuma (Entrance Island), Yeta (Port Lihou Island), Tarilas (Packe Island), Mipa (Turtle Island) and Dumaralug Island, except in certain limited areas.
230 At [2] of the reasons for the determinations, Drummond J held:
On the material available to the Court, the claims of the Kaurareg to be recognised as the traditional owners of these seven islands is well established. That there has long been identified in the historical records of Australia the existence of a separate people known as Kaurareg is demonstrated by the evidence available to me. These records show that the Kaurareg were the original inhabitants of the islands of the Kaurareg Archipelago prior to and at the time of the claim of sovereignty made on behalf of the English Crown in 1770 by Captain Cook and thereafter. It is enough to refer to a few of these records.
231 Drummond J then gave an account of the hardships imposed on the Kaurareg People by colonisation, and specifically gave an account of their forced removal to Mua (at [8]-[12]):
European commercial activity and expanding settlement in the Torres Strait that increased from the last third of the nineteenth century, placed great pressures on the Kaurareg. Much hardship has been endured by them in consequence. Those hardships that extended well into the twentieth century. Armed conflict took place in the late nineteenth century between the Kaurareg in defence of their islands against European and other commercial interests and against the Queensland authorities. Imported diseases took a heavy toll of the Kaurareg. The great measles epidemic of 1875 took many of them. Their numbers steadily declined.
In 1881, in response to the pressures imposed on the Kaurareg by increasing European activity in their area, a reserve was established on the northern end of Kirriri, where the Kaurareg continued what has been described as a precarious existence until 1922. Mr Wasaga has spoken today of what took place then. The Queensland Government forcibly removed the remaining Kaurareg from Muralag to exile on Moa. The Kaurareg strongly opposed this removal. They sought to have it reversed. An article relating to the Government’s action appeared in the Queensland Newspaper on 11 March 1922 under the heading “Evicted native protests - We want to stop on our own place,” the report read. The present Kaurareg claimants are descended, as I understand it, from three Kaurareg who actively took part in the protests and who were forcibly removed to Moa on 8 February 1922, some time before the remaining Kaurareg were similarly removed there.
There they remained as a group, although their traditional links with the homelands remained strong. The forced removal of 1922 was not able to prevent various Kaurareg from time to time going back to their islands. They were all taken back to Moa. The war brought great changes in the Torres Strait. One of the consequences of the upheavals that then occurred was that a number of Kaurareg left Moa and returned to Ngurupai (Horn Island) in 1946. They established what is now the Wasaga Township there and gradual recognition came to them.
By 1949 the settlement contained thirty-three Kaurareg and, with the encouragement of the Anglican Bishop, the Department of Native Affairs was urged to declare Ngurupai a reserve to give the Kaurareg some security of tenure where previously they had not been recognised as having any. There was a proposal soon afterwards by the Government to move the Kaurareg to Red Island Point on the mainland. That was rejected by them. Though ultimately the recommendation for a reserve on Ngurupai was not accepted by the Government, the Kaurareg who had come back to settle there from 1946 were not removed. The numbers steadily increased. Some recognition of the demands of the Kaurareg to live on their traditional lands came in February 1969 when the Government established the Horn Island Village Council.
That process of return to the islands, after the 1922 removal, has culminated today in the applications to this Court for the five consent determinations.
232 These events are material to my reasoning on the separate questions. Although Drummond J does not refer expressly to any connection material, it was common ground in this proceeding that the 1997 report of Mr Southern was relied upon for the State’s agreement to the five consent determinations. That report is in evidence in this proceeding.
The first ‘shared islands’ determination
233 In Nona v State of Queensland [2005] FCA 1118 (the first shared islands determination), this Court determined, by consent, that native title exists in relation to Buru (also known as Turnagain Island), Warul Kawa (also known as Deliverance Island), Kerr Islet and Turu Cay, and that native title is held jointly by the Saibai, Dauan, Mabuiag, Badu and Boigu Peoples. These islands lie to the north-west of Badu and Mabuiag, and to the south-west of Boigu, in relatively open water and not adjacent to any of the home islands.
234 Black CJ noted at [10] that the determination was supported by a report by Dr Hitchcock dated April 2005. This report is in evidence in this proceeding. Victor Nona and Titom Nona are listed as informants.
235 Relevantly, Black CJ held at [12]-[13] in the reasons for the determination:
The continuous physical, cultural and spiritual connection of the Saiban, Dauan, Mabuiag, Badu and Boigu peoples with the land the subject of the claims is common ground. In his report, Dr Hitchcock explains that the influx of Europeans and others into the Torres Strait and annexation of the Torres Strait Islands did not disposses[s] the Islanders of their home islands or their other territories. On the contrary, he states that the continued participation of Islanders in fishing industries enabled them to visit the claim islands and fully maintain their connection with them.
Dr Hitchcock also explains that Buru and Warul Kara are of significant spiritual significance to the Saiban, Dauan, Mabuiag, Badu and Boigu peoples, who consider the islands to be sacred to their belief system. It is common ground that the claimants acknowledge and observe a body of traditional laws and customs which are laws and customs that connect them to the islands the subject of the claim and have done so well before the assertion of sovereignty by the Crown. In particular it is accepted that there is a normative system of laws which have force in the peoples’ lives and which regulate their access to and use of the islands. This is supported by evidence of the continued use of the area, including for hunting, fishing and foraging and, in the case of Warul Kawa, camping. The islands provide rich resources of marine, plant and bird life.
236 Some matters of note about this determination. The five groups whose native title was recognised are geographically widespread: Saibai is some way to the east of the closest of the uninhabited islands (Buru), Badu is quite some way to the south, as is Mabuiag. All five home island groups are geographically some distance from Turu Cay, Kerr islet and Warul Kawa. Yet standing back and looking at the navigation patterns, and the use of marine resources, it is rational to see how those islands far to the west in the Torres Strait may have been traditionally occupied or utilised by those groups.
237 Of particular note, this determination does not include the Mualgal, who are not recognised as holding native title in these islands. Like the 2006 Mualgal determination over Murbayl and Muknab, geographic location of home islands, and navigation routes, do not necessarily tell the whole story about native title to uninhabited islands. In my opinion the content of this determination is another, and different, illustration of how the geographical proximity of Mua and Badu to each other does not necessarily inform the way rights and interests in uninhabited islands are held, nor who, if anyone, title is shared with.
The second ‘shared islands’ determination
238 This is an important determination for the purposes of resolving the separate questions. The State’s and Commonwealth’s submissions particular acknowledged this fact, and I agree.
239 In Nona and Manas v State of Queensland [2006] FCA 412 (the second shared islands determination), this Court recognised native title in relation to fifteen small islands, islets and rocks near Badu and Mua, including Kanig Island, Zurat (also known as Phipps Island), Kulbai Kulbai (also known as Spencer Island) and Dadalai (also known as Canoe Island). Native title was recognised as held jointly by Badulgal and Mualgal.
240 Dr Hitchcock produced a connection report in support of this consent determination. That report is in evidence and I consider its contents of some importance in the resolution of the separate questions.
241 Relevantly, at [19] of the reasons for the determination, Dowsett J held:
The evidence demonstrates that the claim group members are descend[a]nts of people who have lived on their respective islands for a very long time. They were, and are, seafarers who would almost certainly have visited neighbouring islands, islets and rocks, searching for food. It is probable that over the centuries, they have come to regard the determination area as being theirs. The anthropological evidence supports this view, but it is really based on observations of human nature. This connection pre-dates the first assertion of British sovereignty.
242 Titom Nona gave some evidence in this separate question proceeding about the native title process leading up to the second shared islands determination. The examination-in-chief sought to suggest that leading up to this determination there was some debate about whether the native title to these islands was traditionally shared, or not. However Mr Titom Nona’s evidence was highly generalised, and his recollection was not strong, so there is nothing in his evidence which has assisted me in understanding the background to the second shared islands determination.
243 I discuss this determination in more detail later in these reasons. For the present, the other matter to note is that the Kaurareg #1 claim (filed in August 2008) extended into the sea and covered at least two of the islands which were then covered by this consent determination. Isaac Savage, Paul Tom, Pearson Wigness, Harry Seriat and Milton Savage were the Kaurareg people nominated to be members of the Kaurareg #1 applicant. Each swore an affidavit in support of the application.
244 In that application, which I discuss in more detail below because of its wholesale reliance on the myth of Waubin as the basis for the rights and interests of Kaurareg People in sea and islands emanating out from their home islands, the Kaurareg People asserted that:
in the north the Kaurareg Aboriginal people’s sea extended as far as the channel between Waral and Dollar Reef.
245 In attachment J the Kaurareg claim area was, relevantly, described as being the area of land and waters and the seabed:
located between the southern boundary of the Torres Strait Sea Claim proceedings QUO 6040 of 2001 and Dollar Reef, the northern boundary of which comprises a line passing between Dadali Islet and Gainaulai Islet to the west and slightly north of Mukanab Rock to the east; as well as that part of Kagar Reef and surrounding waters which intersects with the southern boundary of the Torres Strait Sea Claim proceedings QUO 6040 of 2001.
(Emphasis added.)
246 Despite that description, and because those areas were already determined (for Mualgal, Muknab Rock; and Dadalai in relation to the second shared islands determination), Schedule B to the Kaurareg application expressly excludes a claim over those areas. Nevertheless, the general assertion on behalf of the Kaurareg People about the extent of their native title to sea country extends considerably north and north east of Warral.
THE ROLE OF EVIDENCE, FINDINGS AND REASONING IN AKIBA
247 In the applicant’s final written submissions about the relevance of Akiba, the applicant contends (at [14]), having noted the difference in size and complexity between this proceeding and Akiba:
It is unnecessary to reinvent the wheel. By comparison, this case is about 2 relatively small and uninhabited islands of Torres Strait and is to be decided consistently with the Akiba findings and determination, with the existing consent determinations, and in a way that will not prejudice for any party, the outcome of the united claim to the adjoining waters.
248 That submission can be accepted, subject to one qualification. This proceeding is about who holds native title in Warral and Ului, but all parties accepted the Court’s findings may have ramifications for other yet to be finalised claims, as the last part of this paragraph recognises.
249 No party in this proceeding sought to invite the Court to depart from the material findings of fact in Akiba, or suggested any findings were wrong, given the evidence in this proceeding: cf a contention made in submissions and evidence in support of the recent consent determination in the Part B Sea Claim: see David at [124]-[128]. Nor did any party suggest that there were any legal issues decided, or legal principles applied, in Akiba that this Court should revisit for the purposes of taking a different approach. In other words, while the parties sought to emphasise different parts of the reasoning in Akiba, and different findings by Finn J, all parties accepted the reasoning was correct insofar as it may be applied to resolve the separate questions in this proceeding.
250 Akiba concerned a claim for native title in the seas of the Torres Strait. It was originally filed in November 2001. As Finn J noted in his Honour’s reasons for judgment at [59], the claim area was difficult to describe. It included a vast section of waters from the Arafura Sea in the west, stretching across to beyond the island of Mer in the east, into the Coral Sea. Rather than attempting to describe it, I have included the paragraphs and map from Akiba at [60]-[61]:
The continuous white lines — circular and linear — in the map below mark out the external boundaries of the combined Part A and Part B sea claims. It is unnecessary to distinguish the two claims for present purposes. I will explain the references on the map to “1872” and “1879” below.
The long white line running north-east (ie left to right) across the central area of the map which intersects the Western and Top Western islands, represents, save in one respect, PNG’s Seabed Jurisdiction Line. The excepted respect relates to the bulbous extrusion on the line. The explanation for the bulb is that in its centre, in PNG waters, is an Australian island — Guchen Sandbank. The circular line around its northern side represent the island’s territorial (ie Australian) waters. All of the encircled islands lying north of the PNG Seabed Jurisdiction Line are Australian. The circles around them delimit their respective territorial seas which includes sovereignty over the seabed in their territorial seas. There is an area enclosed by the two vertical lines in the top centre of the map which run from the Seabed line up to the west side of Boigu and the east side of Saibai and then join on the northern side of the two islands just short of the PNG mainland. By virtue of the Treaty, in this area Australia has fisheries jurisdiction but the seabed is PNG’s save for the territorial seas around Boigu, Buru, Dauan and Saibai. This area is referred to colloquially in this proceeding as the “Top Hat”.
251 Native title claims were advanced in relation to these areas on behalf of a claim group that Finn J described as having “four cluster segments” from the 13 inhabited islands: at [55]. Notably, the claim did not include the Kaurareg People, who had their own, separate claims (as did the Gudang People from northern Cape York).
252 One of the main issues at trial was how to characterise the “society” whose traditional laws and customs gave rise to native title rights and interests. Finn J describes the parties’ different approaches at [56]-[57]:
There is fundamental disagreement between the parties as to who constituted the “society” under whose laws and customs at sovereignty and now, native title rights and interests in the claim area existed and have continued to exist. The applicant’s primary case is that the members of the native title claim group comprise, or are members of, and their ancestors at sovereignty comprised or were members of, “one society” for NT Act purposes. In the alternative, the applicants propose a variety of alternatives which it is unnecessary to describe here.
The Commonwealth’s contention is that the evidence is consistent with a finding of four regional societies being the four cluster groups. The State in turn contends that the relevant laws and customs, as also the consent determinations, are consistent with the “societies” being individual island based societies.
253 At [57], in a finding which in my opinion is relevant to the present proceeding and explains why this Court does not need to determine whether Kaurareg People form part of the same society as Badulgal and Mualgal, Finn J said:
Surprisingly perhaps, what has emerged as common to the parties is that, whosoever might constitute the relevant society, the native title rights and interests held under the “society’s” laws and customs are held, in substantial part, at the individual island community level by claim group members of that community. The parties diverge in their respective explanations of the phenomenon of land and waters areas “shared” by two or more island communities and in the extent to be given to the sea areas of the individual island communities. Where they disagree sharply, as I will indicate below, is in relation to what the applicant describes as “reciprocal rights”. These are based on the relationship a person or persons has or have with an Islander who has what are called “emplacement based” (or ownership) rights. It is primarily on account of this bifurcation of right types that the applicant asserts the need for a finding that the native title claim group itself holds the native title rights and interests in the claim area (Response [27](d)) although paradoxically it does not suggest any “over-arching title” held by the claim group as such: Response [648].
254 I return to this “society” issue below. This concept of “emplacement” is also something which arose in the expert evidence in the current proceeding. In this proceeding the parties accepted Finn J’s approach in Akiba should be adopted in the present proceeding. However the “society” is defined, “the native title rights and interests held under the ‘society’s’ laws and customs are held, in substantial part, at the individual island community level by claim group members of that community” (emphasis added). That is what the evidence in this case also demonstrated. Badulgal assert native title in Warral and Ului based on rights and interests held, and passed down, at the level of those who are members of the Badulgal community, by descent or traditional adoption. The same is true of Mualgal. The Kaurareg People also assert holding of rights at their island community level – that is, the people of the Kaurareg home islands, although I find the basis or source for their asserted rights in Warral and Ului to be different from the other two groups.
255 At [488]-[491], Finn J expressed his conclusions on the “society issue”:
In consequence I consider that the evidence supports the conclusion of Professor Beckett that the role of the Central Islanders between the Groups before sovereignty was such that there could be said to be a single society. They did not act as an “integrated polity” (Scott, 2008, at [112]), but had no need to. What they did, island by island, was to observe and acknowledge a body of traditional laws and customs. That body, though, was a single one. It admitted of some local differences both in content and in applicable laws. I do not consider that any one reason can explain those differences. I have referred to some number of possible causes of difference. The differences were not, in the scheme of things, of real moment for present purposes. For the most part, the laws and customs had, and have, local application. The exercise of local autonomy ought be expected to have produced some variances in practices and understanding over times.
What needs to be emphasised is that it was not only local applications of the body of laws and customs that were observed by Islanders. The observance of those that had inter-island applications has been well established. The two enduring symbols of the recognition of the bodies of laws and customs as such were the seeking of permission to take from another’s land or marine territory and the practice of ailan pasin.
As I commented earlier in these reasons, if one were minded to give an analogy for the body of laws and customs — and it is a quite imperfect one — it would be of a quilt (to use Professor Beckett’s metaphor) of united parts. The laws and customs which regulate the internal (or “domestic”) workings, relationships, etc of each island community largely replicate those of other communities though not entirely or in all respects. The communities themselves are linked each to the others not only by these largely common “domestic” laws and customs, but also by common laws and customs which govern the relationship of one community’s members to the members of another, both within and beyond the former’s own land and waters.
In light of my conclusions and the concessions of the State and the Commonwealth, I do not understand there to be any abiding dispute as to continuity of the laws and customs found or as to these being “traditional”.
256 Insofar as Badulgal and Mualgal are concerned, the Court applies these findings to those two groups. As I explain below, I consider it is unnecessary to decide at a broad or holistic level whether that description can be applied to the Kaurareg People.
257 Aside from the “society” issue, there were other principal issues which were identified as grounding the opposition of the State and the Commonwealth to the claim in Akiba as framed. There was what Finn J called the “rights” issue. There were two parts to this issue – first, whether there were “reciprocity based rights and interests” which were part of the content of the native title rights and interests enjoyed by the claimants, and were separate from “occupation based rights”: see [493]. The State and Commonwealth contended such rights were “purely individual and personal”. Ultimately, Finn J agreed with the State and the Commonwealth: see [507]-[510]. Second, whether some of the rights claimed by the applicant formed part of the claimants’ native title rights and interests, such as claimed rights to livelihood, to take resources for commercial purposes and the so-called right to protect: see [516]. Finn J accepted some of these existed (such as the right to take resources for commercial purposes, or more accurately for all purposes) and rejected others (such as the right to protect marine resources). Most of Finn J’s consideration of the rights issue is not relevant to the resolution of the separate questions.
258 There was also the “geography issue”, which Finn J described at [544] as “how far those rights and interests extend across Torres Strait”. Finn J made extensive findings about these matters, which involved issues of connection and continuity. His Honour’s conclusions are located at [637]-[641], and are also represented in attachment 8 to the reasons for judgment. In reaching these conclusions, Finn J rejected the State’s contentions that there were “gaps” between marine estates of the various communities: see [642]. Building on these findings, Finn J then made findings about connection and continuity, and what “occupation” should be understood to mean: see [645]-[657].
259 This aspect of Finn J’s reasoning is relevant to some of the issues arising on the separate questions, especially the distinction between “use” and “occupation” emphasised by the State.
260 Lastly on the geography issue, Finn J rejected parts (but not all) of the claim to what he called the “extremities” of the claim area: see [659]-[685].
261 Finally, there was the “sovereignty issue”. This issue dealt with what Finn J described as the fact that, in respect of the claim area “on five separate dates spanning over 130 years, British and then Australian sovereignty was acquired over distinct areas of territorial seas, the airspace over them and their respective seabeds and subsoil”, as well as the effect of Australia’s agreements with PNG and the setting of the outer limits of Australia’s EEZ in 1994 by the Seas and Submerged Lands Act 1973 (Cth): see generally [687]-[689]. There were a number of further arguments between the parties about the nature of the native title rights claimed, about extinguishment, and about other matters such as how native title could be recognised consistently with the claims of what his Honour called “the PNG parties”. None of these issues are relevant to the resolution of the separate questions.
262 Evidence and submissions in Akiba were heard on the islands of Boigu, Mua, Badu, Saibai, Mer, Erub, Poruma, as well as in Cairns and Brisbane over several sitting periods from September 2007 to July 2009.
263 Partway through the trial, in September 2008, the Court determined that the Akiba proceeding would be split into two parts: see Akiba on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 4) [2008] FCA 1446. The newly created Part B of the proceeding was to comprise the waters in the original claim area south of Long Reef, including Ului in the northwest and Nelgee (Twin Island) in the southeast, which were subject to overlapping claims by the Kaurareg People, and waters in the original claim area as well as the waters in the original claim area south of latitude 10°30’S, which were subject to an overlapping claim by the Gudang People. The rest of the claim area continued in Part A. A map of Parts A and B of the sea claim, which can be found in Attachment 6 to Akiba, is reproduced as attachment 4.
264 The division occurred to facilitate a timely native title determination in Part A, since the overlapping claims involved in Part B were “not nearly ready for hearing” at the time Part B was partitioned off, because of overlapping claims advanced on behalf of the Kaurareg People and on behalf of the Gudang People in that region. Nevertheless, in Akiba at [451], Finn J lamented that the proceeding had been split despite the relevance of the history of the Kaurareg People’s participation in the life and culture of the Torres Strait:
It is unfortunate that the sea claim had to be split into two parts. Given the obvious connectedness of the two, and the present and historical participation of the Kaurareg community in particular in the life and culture of Torres Strait (I note its apparent past alliance: Haddon, 1935, p 410; and its shared language with Mua), a more complete evidentiary base would have made for more sure-footed findings, both historical and contemporary about a range of matters in this proceeding. I advert to this because of the quite ambiguous attitude demonstrated by the applicant to the Kaurareg. I would add that, to the extent the splitting somewhat artificially contrives the claim if not the claim group, that is a consequence of s 67 of the NT Act. I also indicated in my opening comments that the splitting of the sea claim precluded my expressing any view on whether the Kaurareg or the Gudang peoples belong to “the society” that is, on the applicant’s case, in issue in this proceeding.
265 And then at [492], Finn J said:
My conclusion is, then, that the applicant has established its one society case. There is an irony in this. The issue of authorisation apart, the answers to the question of native title rights and interests — which is, after all, the concern of the NT Act — would in all probability be the same whether my conclusion had been one, or four, or 13 societies.
266 The applicant relies on the combination of these two paragraphs to submit that even if (contrary to its case) Kaurareg are found to be a separate society, they may nevertheless be found to hold native title along with Badulgal and Mualgal over Warral and Ului.
267 That proposition should be accepted. As I explain below, I consider the “society” question is a distraction, and need not be decided. Even if I had decided it, the way it was to be decided (ie that Kaurareg are or are not part of the same regional society as that identified in Akiba), would not have affected my conclusions about who holds native title in Warral and Ului. Whether one or two ‘societies’, whether on the Waubin narrative or on ancestral occupation (or both), I am not persuaded the evidence establishes on the balance of probabilities that Kaurareg hold native title in Warral or in Ului.
Parties’ contentions about the relevance of Finn J’s findings to the separate questions
268 In their pleadings and submissions, the parties contended that a number of Finn J’s findings in Akiba were relevant to the determination of the separate questions.
269 Each party noted that the Mualgal and the Badulgal were recognised in Akiba as members of the regional society, but that the Court has not yet determined whether the Kaurareg People are members of that society: see Akiba at [9], [451], [479], [492].
270 The State submitted that Finn J found little in the shared laws and customs of the regional society that has any informing spiritual dimension at all (at [172]), and that the island communities are not unified by a common mythology, a creation myth, or a common traditional language. Nevertheless, in the context of landmarks that belong to a community, Finn J determined that mythological connection and song could, in some (albeit few) cases, form part of the indicia of belonging: see Akiba at [392], [441], [607]. I understood the relevance of this to be to the State’s ultimate contention that Kaurareg should not be found to be part of the same society as Badulgal and Mualgal. The Badulgal respondents also emphasised this finding in Akiba, and I understood them to contend it demonstrated why Kaurareg must be found to be outside the regional society identified in Akiba.
271 The State also submitted that the primary holding groups of land and marine estates are the group members of the individual island communities, except for in relation to shared land and waters: Akiba at [455], [638]. This is a matter I have noted above and a matter I agree is material to the answers to the separate questions.
272 Both the applicant and the State submitted that largely, but by no means exclusively, it is a patrilineal descent rule that provides an island (or community) identity, one’s place in the social organisation of that community and the basis for acquiring native title rights and interests in a place that belonged to one’s ancestor. Exceptions to the patrilineal rule include matrilineal descent and rules on adoption: Akiba at [182], [201], [247]. I accept this was part of Finn J’s findings in Akiba, and it is relevant in a general sense to an understanding of the evidence in this proceeding, and its emphasis on knowledge about ownership, occupation and use being traditionally passed from fathers to sons, even if there have been some post-colonisation adaptions to the customary practices.
273 The State and the Commonwealth emphasised that the fundamental criteria of “ownership” of a place are ancestral occupation and use of that place and subsequent and continuing acceptance thereof by other members of the relevant community or communities (ancestral occupation-based rights). Mere use, even repeated use, does not necessarily lead to the conclusion that the place so used belongs to the user’s community: see Akiba at [611]:
The fundamental criteria of ownership of a place, as has been already discussed at length, are ancestral occupation and use of that place and subsequent, continuing Islander acceptance thereof. It is recognised that mere use, even repeated use, does not necessarily lead to the conclusion that the place so used belongs to the user’s community. The marine industries were conducted on precisely this basis and Kris Billy’s evidence on working in another community’s area exemplifies this. More is needed.
(Emphasis added.)
274 This is an important finding from Akiba that can and must be applied to the resolution of the separate questions.
The way the parties ultimately sought to use Akiba
275 During final oral submissions, I asked counsel for each of the parties to clarify what they submit the Court can make of Akiba and how Finn J’s reasoning and findings factor into the resolution of the separate questions.
276 Senior counsel for the applicant responded in this way:
Generally we say we rely on the findings of his Honour, particularly as to one society and as to things like his findings about the nature and extent of the traditional rights and interests. There are interim findings along the way, which we say perhaps, are not binding but they’re nevertheless findings, which the applicant would be asking this Court to have clear and sympathetic regard to.
277 Senior counsel for the Badulgal respondents put his clients’ position on Akiba in this way:
Firstly, the Badulgal respondents say that the findings of Finn J are not binding on the Court but the Court needs to seek consistency, and I think we’re in agreement with the applicant on that point.
However, there are limitations to the need to seek consistency because, of course, as your Honour has pointed out, the decision in Akiba was in relation to marine tenure and it was made on different evidence. But what Finn J found in Akiba in respect of marine tenure was that for the purposes of that case, there was a single mechanism for, or originating basis for the tenure which he called “emplacement”.
Now, the notion of there being a single originating basis based upon ancestral occupation was run in tandem with the issue of reciprocity which Finn J rejected, but in dealing with the ancestral occupation the summary to the decision, which we accept is not authoritative but nevertheless instructive, the summary to the decision says:
Unlike in Native Title claims in Aboriginal Australia, the laws and customs advanced by the communities do not reflect an overarching spiritual connection with the waters. There is no creation story. Yet there are still some, for the most part minor, traditional spiritual beliefs revealed in the evidence. In consequence, the laws and customs of present concern are informed in quite some degree by considerations of utility and practicality.
So it’s our submission that the judgment reflects that understanding and that approach, your Honour.
…
Finn J was very aware that in accepting that there was a basis for an originating tenure which was ancestral occupation, he was departing from the body of jurisprudence and law in respect of Aboriginal Australia about the need for some underlying spiritual fabric to the law and custom. He’s clearly aware that that’s what was happening. That’s what he was doing. That’s what he was asked to do and that’s what he was doing.
He found that the term “emplacement” was a label that he could use, your Honour, and that the act of original occupation, accompanied by descent, founded the present day rights and interests, and he drew that expression at paragraph 248 of the judgment from some writings from Haddon and they’re quoted at paragraph 248 of Akiba …
…
The applicant may put it as ancestral occupation but the evidence itself, in our submission, goes to a mythological foundation of the type that is referred to in the summary of the Akiba judgment as a creation story, and in the nature of an overarching spiritual connection. The difficulty we think that your Honour will face is whether your Honour’s satisfied on the evidence and thinks that it’s available at law that the dual mechanisms of both mythological emplacement and ancestral occupation can be accommodated within a single society for the purposes of Native Title.
278 Counsel for the State put the State’s case on Akiba in the following terms:
In terms of what to make of the Akiba decision itself, there’s a number of bases upon which it’s relevant. The first is as a straight piece of legal authority that establishes important legal principles in a Native Title context. Although it appears that there is some disagreement between the parties as to some of those principles, those are to be resolved in the usual course. So that’s the first way it’s relevant.
The second is that it’s factually relevant in this case, because of the manner in which the parties have conducted this case, and that is on the pleadings and the admissions in the pleadings. It’s admitted that the traditional laws and customs regarding rights and interests in land for the Badulgal and the Mualgal people are those identified in Akiba. To put it another way, the originating basis for Badulgal and Mualgal rights is ancestral occupation and use. So it’s not so much saying that Akiba binds in some sort of an estoppel sense, but rather it’s because of the admissions that the parties have made in this proceeding, the findings in Akiba about Badulgal and Mualgal laws and customs can be adopted by this Court in this proceeding. And certainly the applicant shouldn’t be allowed to depart from that and contend that there is some other basis for Badulgal and Mualgal rights in land.
[after making a further point about the findings of no native title made by Finn J in certain areas of the sea claim]
… The other point to note about Akiba is that whilst there was a finding of a single society, what his Honour found was that group title exists at an island community level. And what his Honour actually did was identify, with regards to marine territories, which of course was all that was in issue, areas of exclusive marine tenure and shared marine tenure for each of the island communities. It was not the case that all 14 groups share the entire claim area and that’s set out in Attachment 8 to the judgment. …
…
And then if I can take the Court to Attachment 8, which appears at the end of the judgment. There his Honour identifies and goes through each relevant island community and identifies where their exclusive and shared estates are. And if you scroll down at (ix) and (x), are the findings about Mua and Badu.
And your Honour will note that with respect to Mua, particular reference is placed on the Shared Islands Consent Determination, and his Honour makes a finding that there is exclusive marine territory for Mua and there is also areas that are shared with Badu. Now obviously when his Honour is using “exclusive” in this sense, he’s using it in a traditional laws and customs sense, because being a sea claim it was not possible to recognise exclusive possession over the sea. But it’s a very important aspect of Akiba that needs to be emphasised.
And the other part to be emphasised is that whenever his Honour is talking about “shared ownership” in Akiba, he means “joint ownership”. And that’s made good by an oft-quoted passage at paragraph 262, where his Honour explains the different categories of sharing and there’s four categories, but it’s only the first, which is shared use and shared ownership of an area by two or more communities that give rise to Native Title rights.
…
And it’s particularly important because, as I understand from things that Mr Blowes said yesterday, the applicant’s case is now that it wants a determination that mirrors Akiba or it is trying to have something that matches Akiba. And if that is the case, then this question is potentially fatal to that part of the applicant’s case. Because contrary to the evidence that Finn J had before him in Akiba, in this case there is no mutual acknowledgment of the other group’s title. And well that’s certainly the submission that the State makes.
279 Senior counsel for the Commonwealth made the following submission:
As to the relevance of Akiba, in the first place, all parties agree that this matter is to be decided consistently with the Akiba determination and any relevant findings, and a relevant finding is that of a Torres Strait Islander society under whose laws and customs the part A Native Title holders hold Native Title rights and interests in the seas in that determined part A area. And there’s two consequences that follow from that. The first is that the Badulgal and Mualgal are necessarily part of that society. And the second is that any rights and interests of the Badulgal and/or the Mualgal in Warral or Ului will also arise from the normative system of that society.
That finding doesn’t preclude Kaurareg rights and interests also arising from that normative system. That’s a matter for the evidence in this case. What we relevantly know from Akiba is that the fundamental criteria of ownership of a place are ancestral occupation and use of that place and subsequent continuing islander acceptance thereof, and that’s set out in paragraph 611 of Akiba – that is, ancestral occupation is the originating basis for ownership under the traditional laws and customs of the society of which Badulgal and Mualgal are part. And the evidence before your Honour for those two groups and their connection to land and waters is consistent with that finding.
The third matter is that Finn J did consider the role of mythology in the Torres Strait and he acknowledged a heritage of mythological stories, particularly myths of a cult hero, but his Honour found that there was no origin myth. Nor did he find that the islanders were unified by a common mythology or a Creation myth.
…
… he found that ancestral occupation and use was also the basis for connection to land, because he considered some of the uninhabited islands in his determination in order to work out how he should be approaching the sea around it. And he did say that the same principles that are applying in relation to the sea also applied in relation to the land.
…
[Finn J] has not said that all of the communities together hold Native Title over the whole of the Torres Strait. He’s said that each of those communities hold Native Title in respect of their own marine territory, whether it’s exclusive to them or shared with others. That’s the effect of the determination.
280 I return to the way each party relied on Akiba where necessary below, but I repeat what I observed at the outset of this section – no party has submitted any aspect of Akiba is wrongly decided, or incorrect. The differences are matters of emphasis, and interpretation about what Finn J meant, or found.
Finn J’s findings about sharing of areas between communities
281 The criteria for ancestral occupation-based rights apply to ownership by a particular community, or by several communities jointly: Akiba at [254]. Insofar as joint ownership is concerned, Finn J found that traditional law and custom amongst the 13 island communities provided for four different forms of sharing of land and sea areas by more than one island community. The State and Commonwealth submitted that Finn J found that the only form of sharing which gives rise to native title rights within the meaning of s 223 of the NTA is shared use and ownership of an area by two or more communities. The applicant’s submissions initially appeared to agree with this proposition, but it is not clear if by the end of the applicant’s oral reply this remained the case.
282 The other forms of sharing identified by Finn J at [262] are:
(a) where an area is owned by one community but its use is shared with one or more other communities – the practical difference between this and the first form of sharing is that the area “belongs to” only one of the communities which, in turn, is responsible for the area. One example of this form of sharing, at [673]-[677], is in relation to Cook Reef, which Finn J found was owned by Badulgal, but permissively shared with Mabuiag People and Mualgal after the advent of pearly luggers;
(b) “known and accepted permissive sharing” of the use of one community’s marine areas by another community or communities (eg productive off-shore reefs) – which Finn J found difficult on occasions to differentiate from the second form of sharing immediately above. Both are forms of “permissive use”, are reciprocity based, and do not constitute native title rights. Finn J gives this example (at [262]):
This form of sharing found considerable expression in Islander evidence where it would be said, for example, “the reefs belong to Mabuiag but we share with others”: Sophie Luffman.
(c) “tolerated” sharing – this is where a community’s area is used without permission but the particular instance is tolerated commonly for reasons of gud pasin (respect and reciprocity) Finn J gives this example:
As Jack Billy said, “everybody got to look for their belly full”; to deny anyone a meal — “That’s not gud pasin”. Similarly, Walter Nona would not object to another Islander “looking for food for their family”.
283 Finn J concluded at [264]:
What probably can be said of all but the first form of sharing, for present purposes, is that they represent differing levels of ailan pasin being accorded by a community to others in their use of its marine territory, those levels having their own explanations.
(Emphasis added.)
284 It is this passage which is said to support the submissions of the State and the Commonwealth that only the first kind of sharing gives rise to native title rights and interests in both groups. I accept that submission.
285 The applicant submitted (final submissions at [25]) that Warral and Ului are an instance of the first variety of sharing. However, it made an alternative contention “if necessary” that:
the circumstances here are distinguishable and did not arise for consideration or argument, and that it is nevertheless entitled to a conclusion of shared ownership: see [250] below.
286 At [250]-[253] of its closing submissions the applicant contended:
… Alternatively, it is a situation not considered by Finn J though it is closer to his first than his second varieties of sharing. Here, before the three communities became engaged in inter-community consideration of ‘ownership’ of Warral and Ului, it was their common understanding that they shared the use of those islands, and each regarded their own use as involving the exercise of rights (i.e., without permission and without the need to give or receive permission). Finn J considered that shared use could give rise in all participating communities to rights in areas of shared use, but he only envisaged the situation where one of them was the owner.
Finn J had no need to envisage, and was not confronted by, and did not receive arguments about, a situation, as here, where each community has used Warral and Ului without permission and without acknowledging any need for permission. Such use is akin to ‘rights-based use’, use ‘as of right’ or use under ‘claim of right’. It is but a small step to regard or acknowledge that situation as one involving shared ownership. The sharing parties might never formally come to that realisation without the need to do so, e.g., in the face of a threat that affects their rights, or the NTA.
The evidence relied on for this alternative argument is the same as for the argument that relies on the “first variety” of sharing. Evidence about the absence of permissions and permission requirements can be identified by searching this outline for the word “permission”. Such evidence provides explanation of the sharing. No evidence suggests use by any of the communities has been the result of a bestowal of gud pasin by one or both other communities.
Finn J, at Akiba [614] noted that the evidence of Islander explanation of sharing of marine estates was “slight” but he found that instances of shared ownership (of identified landmarks) “occur characteristically both in areas where the marine areas of two or more communities meet up or in areas distant from inhabited islands.” Warral and Ului have both of those characteristics. Finn J noted that “pragmatic consideration would seem to account for these”. What he regarded as “very significant” in the lay evidence was first, the witnesses’ “appreciation of the areas that did not belong to their respective communities but which were shared or belonged to another community” and second, “the need to seek permission when using an area that was not theirs or shared”: Akiba [613].
287 I consider and deal with these contentions in more detail later in these reasons. I note them here because, as I understand it, it is this alternative contention which the State in particular submitted misunderstood or misread or misapplied Akiba. The State appeared to submit this alternative contention was precluded by Akiba. I tend to agree.
288 The applicant also contended that both the State and the Commonwealth misunderstood, or invited this Court to misapply, Akiba: see, for example, the applicant’s reply submissions at [37], [42] and [55]. Again, where necessary I deal with the applicant’s criticisms later in these reasons.
289 Generally, I do not accept the applicant’s submissions. I consider that the evidence discloses the kind of “permissive use” by the Kaurareg People of Warral and Ului which is described by Finn J. That evidence is almost entirely post-colonisation, but insofar as it says anything about the situation pre-colonisation, it does not advance or assist the shared ownership claim.
A notable omission from the Akiba evidence
290 There was evidence in the Akiba trial about Warral and Ului, more proportionally about Warral. While the present claim area was excised from the determination area in Akiba, evidence about the islands was taken, including from highly respected elders.
291 Nowhere in the Akiba evidence does any witness give evidence that the islands are jointly owned by, or shared in an ownership sense by, Kaurareg, Mualgal and Badulgal. Not a single witness from Badu or Mua gives this evidence. Nor do the Mabuiag witnesses. Key witnesses give evidence that is directly contradictory to this proposition.
The evidence of relevant witnesses from Akiba
292 Before I refer specifically to Fr Manas’ evidence, it will be apparent from the extracts below that there was a considerable number of leading questions asked of him. Finn J does not make any finding that this affected the reliability of Fr Manas’ evidence, nor that of any other witness. I have indicated where the leading nature of the questions affects my assessment of the reliability of Fr Manas’ evidence as recorded. The same is true of other Akiba witnesses. In the present proceeding, counsel were careful not to lead unless on matters that were not controversial.
293 Fr Manas identified as a Mualaig. He gave evidence about the route taken from Mua to Waiben, across the reefs at high tide, through Umaiyabu and then Murbayl and Dollar Reef. He did not give evidence about Mualgal using Warral as part of their route to Waiben. Use of a passage around Murbayl is consistent with the second Mualgal determination to which I referred earlier. However, he then also gave evidence that Badulgal come across Dollar Reef, but that Dollar Reef belongs to Mualgal. Fr Manas also gave evidence that the islands to the south and west of Badu (such as Zurath, Kanig and Maitka) belong only to Mualgal.
MR KEELY: So what do you say about all that western end of Dollar Reef and the - the islands around about? Who do you say they belong to, in your custom?
FR JOHN MANAS: Well, they Moa. Moa.
MR KEELY: They belong to Moa.
FR JOHN MANAS: Moa, yes.
MR KEELY: Is there anything wrong with Badu using those areas? Are they allowed to, or not allowed to?
FR JOHN MANAS: They are allowed to come there.
MR KEELY: And why are they allowed to come there?
FR JOHN MANAS: Because that area something like when hunting turtle, they might go up in TI somewhere, go this way, they catch turtle there.
294 He gave the same evidence about Goenwali, although in relation to Dadalai he seemed to indicate it belonged to both Badulgal and Mualgal:
FR JOHN MANAS: Yes, Dadalai too. Dadalai where our forefathers been work there.
MR KEELY: So Mualgal forefathers were there?
FR JOHN MANAS: Wa. Like, all Mualaig together. Badu and Moa.
MR KEELY: Badu and Moa - - -
FR JOHN MANAS: Badu and - Badu and Moa.
MR KEELY: Together.
FR JOHN MANAS: Together.
295 Fr Manas was then asked about Warral:
MR KEELY: Now, can I ask you about Warral. That’s quite a big island.
FR JOHN MANAS: Wa.
MR KEELY: What do you say about - on the Stories that are handed down to you, or have been handed down to you, what do you say about who has been using that place in the past?
FR JOHN MANAS: Well, they got Pithalai there.
MR KEELY: There’s Pithalai there.
FR JOHN MANAS: Pithalai, wa.
MR KEELY: Now, who’s got Pithalai there?
FR JOHN MANAS: From Kaurareg.
MR KEELY: So Kaurareg have got Pithalai there.
FR JOHN MANAS: Was.
MR KEELY: Now, is that – that’s a place.
FR JOHN MANAS: Mm.
MR KEELY: Which side of Warral is that - - -
FR JOHN MANAS: On the south side.
MR KEELY: On the south side of Warral - - -
FR JOHN MANAS: Yes.
MR KEELY: - - - is Pithalai.
FR JOHN MANAS: Yes.
MR KEELY: And that Pithalai: is there a Story about that?
FR JOHN MANAS: Yes. Together with the Waubin.
MR KEELY: So it’s part of the Waubin Story?
FR JOHN MANAS: Waubin, yes. Yes.
MR KEELY: So Kaurareg have got a place on that south side?
FR JOHN MANAS: Wa.
MR KEELY: And what about your forefathers? Did they use Warral?
FR JOHN MANAS: Wa. They - they use Warral too, our forefathers.
MR KEELY: So Mualgal forefathers - - -
FR JOHN MANAS: Yes.
MR KEELY: - - - and Kaurareg?
FR JOHN MANAS: Wa.
MR KEELY: Did Kaurareg use it too?
FR JOHN MANAS: Wa.
MR KEELY: And Badu? What about Badu?
FR JOHN MANAS: Badu, too.
MR KEELY: So three people using that one.
FR JOHN MANAS: Yes, three. Yes.
MR KEELY: Does the - does the island there, the ground - - -
FR JOHN MANAS: Yes. Mm.
MR KEELY: - - - does that belong to anybody in your custom?
FR JOHN MANAS: Oh, well, it’s – it’s maybe connected on Moa.
MR KEELY: It’s maybe connected on Moa.
FR JOHN MANAS: Moa, yes.
MR KEELY: And why is it connected on Moa?
FR JOHN MANAS: Because it’s near to Murbayl.
MR KEELY: It’s near to Murbayl - - -
FR JOHN MANAS: Yes.
MR KEELY: - - - and that’s a Moa place - - -
296 Finn J made no findings about Warral. However, on any view, Fr Manas’ evidence did not suggest the first kind of sharing of Warral by all three groups. It suggested use by all three, but (tentatively) ownership by Mualgal.
297 Fr Manas was then asked about Ului:
FR JOHN MANAS: Well, yes, same as Ului, too, but I always know about Warral. Warral. Yes, Ului - Ului same, too.
MR KEELY: Ului same, too.
FR JOHN MANAS: Yes. Because boats and dinghies from here, they must call on Warral and Ului.
MR KEELY: Boats and dinghies from here - - -
FR JOHN MANAS: Yes.
MR KEELY: - - - must call on Warral - - -
FR JOHN MANAS: Yes.
MR KEELY: - - - and Ului.
FR JOHN MANAS: Yes.
MR KEELY: What - what for?
FR JOHN MANAS: Sailing dinghy.
MR KEELY: Sailing dinghies went down there?
FR JOHN MANAS: Yes. Yes, when come back, they maybe get turtle egg. Turtle egg and turtle.
MR KEELY: Okay. Sailing dinghies from Moa - - -
FR JOHN MANAS: Moa.
MR KEELY: - - - go down there, get turtle egg or something like that - - -
FR JOHN MANAS: Wa.
MR KEELY: - - - and - - -
FR JOHN MANAS: On their way.
MR KEELY: - - - and come back.
FR JOHN MANAS: Yes.
MR KEELY: Or you said on their way.
FR JOHN MANAS: On their way.
MR KEELY: To TI?
FR JOHN MANAS: On their way to TI, and come back.
MR KEELY: Yes.
FR JOHN MANAS: They maybe call on Warral. Mm.
MR KEELY: Okay. So you believe your forefathers have done that and - - -
FR JOHN MANAS: Wa. Yes.
MR KEELY: - - - what about you? In your early days, have you used those places?
FR JOHN MANAS: Yes.
298 Finally, counsel asked Fr Manas again a rolled up question about the two islands, to which Fr Manas gave a somewhat different answer, but one which seemed more emphatic than some of his previous ones, which had taken the form of agreeing with the questioner:
MR KEELY: So - and you - so just to finish with Warral and Ului, those two places: what do you think - like, under Islander law, under Islander custom - - -
FR JOHN MANAS: Yes.
MR KEELY: - - - who do they belong to?
FR JOHN MANAS: Wa, they might be come under Moa and Badu.
MR KEELY: Moa and Badu?
FR JOHN MANAS: Wa. Overlap.
MR KEELY: Anyone else?
FR JOHN MANAS: No.
MR KEELY: How about Kaurareg?
FR JOHN MANAS: Well, Kaurareg can - Kaurareg can come in.
MR KEELY: They can come in.
FR JOHN MANAS: Yes.
MR KEELY: So it’s like a shared place?
FR JOHN MANAS: Shared place - - -
(Emphasis added.)
299 The answer to the last leading question from counsel ought in my opinion to be disregarded. Fr Manas was in my opinion clearly indicating, when he was given the chance to express himself without leading questions, that Warral and Ului “came under” Mualgal and Badulgal, and that Kaurareg could “come in”, but in the sense of permissive use not ownership. I consider this is clear from his evidence to this point.
300 The following day, and later in his examination-in-chief, counsel return to Warral and Ului (and Dadalai). Fr Manas’ evidence is different:
MR KEELY: And have you heard anyone say, at least until recently, that that Dadalai is other than shared by Badu and Mualgal? I’ll ask that through Mr Mitchell.
THE INTERPRETER: [Speaking in language]
FR JOHN MANAS: Yes, they all ---
THE INTERPRETER: [Discussion in Language]
THE INTERPRETER: It is Moa and Kaurareg territory.
MR KEELY: So Dadalai ---
FR JOHN MANAS: Wa.
MR KEELY: --- you say is Moa ---
FR JOHN MANAS: Wa.
MR KEELY: --- and Kaurareg.
FR JOHN MANAS: Wa.
MR KEELY: Right. And Warral and Ului?
FR JOHN MANAS: Warral and Ului, yes.
MR KEELY: Is that the same or different?
FR JOHN MANAS: Same.
MR KEELY: Same. So those three places.
FR JOHN MANAS: Wa.
301 It is common ground that the word “Wa” means “yes”, or indicates agreement.
302 Fr Manas was cross-examined about the Pithalai story by Ms Pritchard acting for the Kaurareg People. He gave this evidence:
FR JOHN MANAS: One was - I can’t - I can’t remember that story but I remember what he was - he was fighting with. Pithauli. Then Pithauli was come from Hammond Island and he run away from there from Waubin and on the side of Hawkesbury Island - rock - Pithauli. They were fighting.
MS PRITCHARD: So the rocks on the southern side of Hawkesbury Island.
FR JOHN MANAS: Yes.
MS PRITCHARD: Warral Island.
FR JOHN MANAS: Yes.
MS PRITCHARD: Represent Pithauli.
FR JOHN MANAS: Wa.
MS PRITCHARD: The warrior ---
FR JOHN MANAS: Yes.
MS PRITCHARD: And those rocks, they are an Adhi site?
FR JOHN MANAS: Wa.
MS PRITCHARD: An Adhi site?
FR JOHN MANAS: Mmm.
303 He was asked about the story of Waubin’s blood, which he agreed he knew about, but could give no details about:
MS PRITCHARD: Okay. But you’ve heard someone tell you that Waubinin Malu means everywhere that Waubin’s blood went?
FR JOHN MANAS: Wa.
MS PRITCHARD: You’ve heard that.
FR JOHN MANAS: Yes.
304 He was shown the photos of the rock at the southern end of Warral, said to be Pithalai, that I infer also included ones tendered in evidence in this proceeding. However, his evidence was as follows:
FR JOHN MANAS: Yes, I been there on Warral.
MS PRITCHARD: You’ve been there, okay.
FR JOHN MANAS: But I never been going on - on the other side where Pithauli was.
305 Fr Manas was then cross-examined about pre-colonisation relationships between Badulgal and Mualgal (or lack thereof), and fighting between them. Counsel for Kaurareg then returned to the subject of Warral. She asked, and Fr Manas confirmed, that Mualgal have no story sites on Warral, but that Pithalai is a Kaurareg story site on Warral. There was then the following exchange about ownership of Warral:
MS PRITCHARD: Yesterday Mr Keely asked Father Manas who owns Warral?
THE INTERPRETER: [Speaking in Language] Yes.
MS PRITCHARD: And Father Manas said yesterday that Badulgal and Mualgal owned Warral.
THE INTERPRETER: Yes.
MS PRITCHARD: And today Mr Keely asked that same question again, “Who owns Warral” and Father Manas said it’s owned by Moa and Kaurareg.
THE INTERPRETER: [Speaking in Language]
MS PRITCHARD: Okay?
FR JOHN MANAS: Wa, Kaurareg.
THE INTERPRETER: Kaurareg, yes.
FR JOHN MANAS: Wa, wa.
THE INTERPRETER: That’s right, yes.
MS PRITCHARD: So it correct, Father Manas, that Kaurareg have title, own Warral?
THE INTERPRETER: [Speaking in Language]
FR JOHN MANAS: [Speaking in Language]
THE INTERPRETER: He doesn’t - hey?
FR JOHN MANAS: [Speaking in Language] I don’t know.
THE INTERPRETER: He doesn’t know.
MS PRITCHARD: He doesn’t know.
THE INTERPRETER: Mmm-hmm.
MS PRITCHARD: But Kaurareg have a story site?
THE INTERPRETER: Yes, that’s right.
(Emphasis added.)
306 Counsel appears conspicuously not to have mentioned Badulgal. I infer that Fr Manas’ answer that he “doesn’t know” is indicative of a reluctance to agree with the proposition put. I infer that especially because of the evidence he had earlier given, which in my view was quite clear. Here, Fr Manas does not appear, I infer, to directly wish to contradict the questioner but he will not agree with the proposition about Kaurareg ownership of Warral. That is consistent with his previous evidence about permissive use of the island by Kaurareg People. Fr Manas was a senior Mualaig elder. It is inconceivable that he did not have a clear understanding about which groups owned Warral, a key uninhabited but frequently visited island just to the south of Mua.
307 In relation to Ului, the cross-examination went like this:
MS PRITCHARD: And you told Mr Keely today that Kaurareg and Moa both own Ului; is that correct?
THE INTERPRETER: That’s right, yes.
MS PRITCHARD: That is correct?
THE INTERPRETER: Mmm-hmm.
308 That answer through the interpreter is equivocal, given the evidence above. It could indicate agreement with the historical proposition only – about what was said. It could be gratuitous concurrence. There is no further exploration of Fr Manas’ previous ‘I don’t know’ answer. I consider what Fr Manas said in examination-in-chief to be the more reliable answer. The evidence ‘they can come in’ was genuinely volunteered by Fr Manas. His answer ‘I don’t know’ was also given without leading. The conflicting evidence was in my view responsive to leading questions, and some of it (like the passage immediately above) is equivocal. The conspicuous absence of any question about Badulgal also leads me to give this answer less weight.
309 Those conclusions are reinforced by the corrections made later by Fr Manas in relation to Dadalai:
MS PRITCHARD: And you told Mr Keely this morning that Moa and Mualgal and Kaurareg both own Dadalai; is that correct?
THE INTERPRETER: [Speaking in Language]
FR JOHN MANAS: Dadalai [Discussion in Language]
THE INTERPRETER: Dadalai is Mualgal territory, not Kaurareg.
FR JOHN MANAS: Mmm.
MS PRITCHARD: This morning Father Manas told Mr Keely that Dadalai is owned by Kaurareg and Mualgal. Which is correct?
THE INTERPRETER: Mualgal.
310 There was then a debate about the interpreter’s translations, and the questioning commenced again, but Fr Manas gave the same definite answer:
FR JOHN MANAS: Mualgal lag[.]
THE INTERPRETER: It is Mua territory.
MS PRITCHARD: No - can Father Manas confirm he says now that there is no Kaurareg title to Dadalai?
THE INTERPRETER: [Speaking in Language]
FR JOHN MANAS: Wa.
THE INTERPRETER: [Speaking in Language]
FR JOHN MANAS: Wa.
THE INTERPRETER: That’s right, yes, he confirms.
311 Again, it is conspicuous that Fr Manas is not asked about Badulgal interests. It is true he volunteers nothing about Badulgal interests. That is a pattern repeated in the present proceeding by Mualgal witnesses.
312 After some further questioning about stories related to Dadalai, there is the following exchange:
MS PRITCHARD: So is Father Manas now saying Kaurareg have rights to Dadalai?
THE INTERPRETER: He doesn’t know.
MS PRITCHARD: He doesn’t know. Do Kaurareg people have right - are they free to go to Dadalai?
THE INTERPRETER: [Speaking in Language]
FR JOHN MANAS: Wa.
313 Of course, Fr Manas has just been very clear that Kaurareg do not have rights in Dadalai. That reflects the position from the second shared islands determination. I consider he was again here being overly deferential to the questioner.
314 Fr Manas was then asked some questions by Ms Phillips, who was acting for the Gudang People:
MS PHILLIPS: From Injinoo. And I have just a few questions for you. You have described for us the places that are Mualag and Badulag. They form a ring around Moa and Badu. Is that correct?
THE INTERPRETER: [Speaking in Language] Badu, Moa [Speaking in Language]
FR JOHN MANAS: [Speaking in Language]
HIS HONOUR: Ms Phillips?
THE INTERPRETER: [Discussion in Language]
FR JOHN MANAS: [Discussion in Language]
THE INTERPRETER: [Speaking in Language] like together. Yes, that’s right, yes.
MS PHILLIPS: Thank you. You’ve told us that Badu people and Mabuiag people and Moa people can go there and they don’t have to ask anybody; is that correct?
THE INTERPRETER: [Speaking in Language] Badulgal, Mabuiagal [Speaking in Language] and Mualgal [Speaking in Language] anything [Speaking in Language]
FR JOHN MANAS: Wa.
THE INTERPRETER: That’s correct, yes.
MS PHILLIPS: Thank you. You’ve told us that the rules for Moa and Badu and Mabuiag people they are the same.
THE INTERPRETER: [Speaking in Language] Badu, Moa, Mabuiag.
FR JOHN MANAS: Wa.
315 Again, it is difficult to tell how much of Fr Manas’ answers involve some deference to the questioner and how much do not. However, with these questions Fr Manas seems to give straightforward answers, and does not volunteer that Kaurareg have any interests in the islands around Badu and Mua.
316 Ms Webb for the Commonwealth then cross-examined Fr Manas about growing up in Kubin and Poid, and the closeness of Mualgal and Kaurareg People there. She cross-examined Fr Manas for some time about many topics, none of which are presently relevant. However, there was the following exchange, about the difference before and after the Coming of the Light:
MS WEBB: Yes. Fr Manas, we talked about those raids and those fights between the islands before time; do you agree that the idea of sharing between islands is something that came after the missionaries?
FR JOHN MANAS: [Discussion in language]
THE INTERPRETER: When God’s word arrived our life was like that and we welcomed God’s word and - - -
HIS HONOUR: Could you repeat that answer again please; I’m sorry I missed the middle part of it.
THE INTERPRETER: Start again? When God’s word arrived [Discussion in language] I asked him to repeat.
FR JOHN MANAS: Wa. [Discussion in language]
THE INTERPRETER: Okay, when the word arrived, when the Light arrived and it shone - - -
FR JOHN MANAS: Wa. [Discussion in language]
THE INTERPRETER: - - - the word, giving the word, like this, share, to share.
FR JOHN MANAS: Share, wa.
MS WEBB: Thank you. And Fr Manas, just to be clear, before that Light arrived and gave the word that’s when the battles were; is that right.
THE INTERPRETER: [Speaking in language]
FR JOHN MANAS: Wa.
317 Again, this evidence is consistent with some of the evidence given in the present proceeding, although it was a topic the applicant sought to downplay, and the Badulgal respondents sought to emphasise. What can be said about Fr Manas’ evidence in Akiba is that it tends to support the Badulgal respondents’ position that pre-colonisation there was a considerable degree of conflict between Badulgal and the Mabuiag People on the one hand, and Mualgal on the other.
318 Counsel for the State then asked Fr Manas about the second shared islands determination:
MR WATERS: Okay. Now in - just excuse me, in - there was one other Federal Court application I should mention. You had another case which I think was finished on the same day with Dowsett J last year and it related to some islands that you shared with the Badu people and I think - no, I think it was just the Mualgal and the Badu people. Is that right? There was another claim to some islands that was finished last year?
FR JOHN MANAS: Yes. Yes.
MR WATERS: And I think one of those islands was Math and Kanig was another?
FR JOHN MANAS: Yes, that’s far, far away from here.
MR WATERS: And they’re on the, over on the Badu side.
FR JOHN MANAS: Badu, yes.
MR WATERS: And those are islands I think that you, or the Mualgal people share with the Badu people; is that right?
FR JOHN MANAS: Yes, that’s on other side of Badu, Kanig
MR WATERS: But all of those islands, are they all shared with Badu people?
FR JOHN MANAS: Yes.
MR WATERS: And in those - - -
FR JOHN MANAS: Shared, that’s from before time, share with Badu people and Kaurareg people; them Kaurareg they shouldn’t been here.
MR WATERS: Okay.
FR JOHN MANAS: Married, inter-married on Poid, that time, when I was a small boy. I was a boy.
319 Now, clearly Kaurareg were not part of the second shared islands determination in their own right. However, here again in my opinion Fr Manas is making his own position clear as a Mualaig elder, that Kaurareg have no traditional rights in this region, to either the uninhabited islands or the sea country, although he appears to recognise that through inter-marriage they may be regarded as having some kind of rights. I consider this may be rights of the reciprocal or permissive kind to which Finn J referred.
320 That he held that opinion about Kaurareg is confirmed by the next piece of evidence:
MR WATERS: And do you say in relation to that case that the people that have been accepted for the land are the same people for the water; is that the way you see things should be around those islands?
FR JOHN MANAS: About?
MR WATERS: Those islands that are shared that we just talked about - - -
FR JOHN MANAS: Yes.
321 Fr Manas’ view is that rights acquired through inter-marriage are different from traditional rights in the land and sea in the Western Torres Strait. That is demonstrated by his next piece of evidence about Wees Nawia, when he was asked about who people need to seek permission from, including in the “old days” before the Mua Island council existed:
MR WATERS: Now, just last thing. You mentioned a couple of times that different people should see the Chairman or the council if they want to do things; do you know what the position was back in the old days before the council was there? Do you know anything about what happened before there was a council. I think that’s before your time; maybe somebody has told you?
FR JOHN MANAS: Well, before time, a person who stay there, like a Chief, for that island, like Poid Moa Island then come to here, Kubin Moa Island.
Kubin based on Moa, it’s a new village. Poid Moa Island so we got the Chief in there already from Poid, come here. Mr Nawia, he’s come from Kaurareg.
MR WATERS: Yes.
FR JOHN MANAS: He was married on Poid woman, so they’re inter- married, when peoples come from Kaurareg.
MR WATERS: Okay.
FR JOHN MANAS: They been here for a long time and he was married, Kubin woman, Moa woman then come to here, then he make himself, we make himself other Chief.
MR WATERS: He made himself a Chief?
FR JOHN MANAS: Yes. From there and come here.
MR WATERS: Right.
FR JOHN MANAS: He led the people from there, like an eagle like peoples. From there, come to here.
MR WATERS: And was he a Christian?
FR JOHN MANAS: Wa.
MR WATERS: And he was like leading his flock from Poid to Kubin.
FR JOHN MANAS: Yes. Kubin.
MR WATERS: Yes, and that was how Kubin here got established?
FR JOHN MANAS: Yes.
(Emphasis added.)
322 In re-examination, Fr Manas was asked some further questions about Mua and Kaurareg boundaries, in terms of what Fr Manas knew from two other elders:
MR KEELY: Yes. Can I ask you whether, did you ever hear anything from Mr Wees Nawia about any boundary between Kaurareg people and Moa people; did he ever talk about a boundary or didn’t he say anything?
FR JOHN MANAS: Here, or?
MR KEELY: I’ll ask again. Mr Wees Nawia, did you ever - you spent a lot of time with him?
FR JOHN MANAS: Yes.
MR KEELY: Did he ever talk to you about, did you ever hear from him about boundary between Kaurareg and Moa, or he didn’t talk about boundary?
FR JOHN MANAS: Yes, I never heard that from - - -
MR KEELY: What about Mr Billy Wasaga, did you ever hear him talk about boundary between - - -
FR JOHN MANAS: Yes, I heard about him, he would say mean like a boundary line.
MR KEELY: Well, you said before, you used the expression “they make a new boundary”?
FR JOHN MANAS: Yes.
MR KEELY: When was this new boundary made?
FR JOHN MANAS: Well, since Mr Wasaga still alive.
MR KEELY: Mr Wasaga is still alive so how long ago was the new boundary worked out?
FR JOHN MANAS: Well, he say that when he’s been here for that meeting, for the Native Title meeting, he was saying that.
MR KEELY: The Native Title meeting?
FR JOHN MANAS: Yes.
MR KEELY: Before that meeting did you ever hear anybody, anybody at all, talk about boundary - - -
FR JOHN MANAS: No, no.
MR KEELY: - - - between Kaurareg and Moa?
FR JOHN MANAS: No.
323 This evidence is of some significance. It tends to prove that the notion of Kaurareg People independently holding rights and interests in the north-western Torres Strait came to the fore after the NTA was enacted and claims were being made. I infer that is because, since at least the 1920s when Kaurareg were forcibly removed to Mua and there was a considerable inter-marriage between Kaurareg People and Mualgal, those Kaurareg People living on Mua, or with connections to Mua, did not as a practical and pragmatic matter, in terms of their daily lives, ever have to worry about having access to the uninhibited islands, the reefs and the sea further north from their home islands, including Warral and Ului and the shared islands, and places like Muknab and Murbayl, because they were considered part of the Mualgal community.
324 Finally, Fr Manas in re-examination demonstrated again that his understanding of traditional law and custom was that land and reefs proximate to Mua belonged only to Mualgal. He was asked about Prakal Maza Reef, which is the reef to the east of Warral and in front of Murbayl Island. After clarifying with Fr Manas that the question was about the “old laws and customs”, not native title, Fr Manas gave the following evidence:
MR KEELY: That reef and the waters around it, under your custom, your old customs, who does it belong to, anyone? Who does it belong to?
FR JOHN MANAS: Mua custom, Mua.
MR KEELY: Moa custom?
FR JOHN MANAS: Moa, yes.
MR KEELY: So it belongs to Mualgal?
FR JOHN MANAS: Yes. I just say when come to Moa they always talk to me and we go hunting turtle there.
MR KEELY: Who always talked to you?
FR JOHN MANAS: Them boys, hunting boys.
MR KEELY: Hunting boys?
FR JOHN MANAS: Yes.
MR KEELY: So you’ve been out there getting - - -
FR JOHN MANAS: Yes, I been hunting them.
325 Fr Manas was then asked about the three reefs to the south of Prakal Maza (and to the south of Warral), sometimes called 1, 2 and 3 reefs but on the maps in evidence in this proceeding called (moving from the north towards the south) Giai Maza, Dadatiam Maza and Zugin Maza:
MR KEELY: You said, as my note records, that - you said Moa people, you were asked about No.1, No.2, No.3, and you said, and you were asked who owns, who owns them, and you said Moa people worked there first; do you remember that?
FR JOHN MANAS: Mm.
MR KEELY: What does it mean if you work there first? I’ll withdraw that. I’ll start with an earlier question. When you say Moa people worked there first, which Moa people worked there? Are you talking about current generation or old people?
FR JOHN MANAS: Old generation.
MR KEELY: Forefathers?
FR JOHN MANAS: Forefathers because hunting.
MR KEELY: Hunting there?
FR JOHN MANAS: Hunting dugong there.
MR KEELY: And what does it mean for you, today, if your forefathers worked, hunted and looked for fish and dugong and turtle in that area?
FR JOHN MANAS: For today?
MR KEELY: Yes. When you look at No.2, No.1, No.3 reefs today and you’re asked do you have some interest there, what your answer was that you talked about old people using those places?
FR JOHN MANAS: Yes.
MR KEELY: Old Mualgal?
FR JOHN MANAS: Mm.
MR KEELY: So what does that mean for you today? Are you allowed to use those places today?
FR JOHN MANAS: Well, I’ve been told allowed to use.
MR KEELY: And why are you allowed to use it?
FR JOHN MANAS: Because Kaurareg were together, together with us.
MR KEELY: Yes. You’re talking about at Poid?
FR JOHN MANAS: Poid, yes.
MR KEELY: And Kubin here too?
FR JOHN MANAS: Yes. Because from Poid they go there, catch turtle, dugong from No.1, No.2, No.3.
MR KEELY: So Kaurareg hunted there?
FR JOHN MANAS: Yes.
MR KEELY: And old Mualgal people hunted there too?
FR JOHN MANAS: Wa.
326 Again, I consider this is important evidence given by Fr Manas. It again tends to prove that interests in some of these areas has a post-colonisation aspect, arising from the Kaurareg People’s removal to Mua, and the inter-marriage that occurred. In this case, Fr Manas seems to be suggesting those three reefs may be regarded as belonging to Kaurareg, but Mualgal can permissively use them. As I explain below, other witnesses gave different evidence about these reefs. For present purposes, it is the relationship between the Mualgal and the Kaurareg People after their removal to Mua, and how that affected use of the uninhabited islands, reefs and seas in this region, which I consider material.
327 Walter Nona was a Badulaig, although his father was originally from Samoa. His mother was also not from Badu, but his parents made Badu their home. He was born in 1923, so is one or possibly two generations away from the pre-colonisation era. In describing the small islands to the west of Badu, and who they belonged to, in examination-in-chief Walter Nona gave the following evidence:
MR BLOWES: Yes? Okay. I’ll just do - oh, yes. Now, those places: do you know where those names came from, who put those names? You heard?
WALTER NONA: Yes, was by ancestors.
MR BLOWES: Yes? From which island?
WALTER NONA: From Badu.
MR BLOWES: And how did you learn those names?
WALTER NONA: I learn from those ancestors. They have them words. People like that Sagigi, like all the Moa, the older people.
MR BLOWES: Yes? So, now, all of those places: did they tell you anything about whether they ever went to any of those places? Did they go to those places, did you hear, or not?
WALTER NONA: Most of those Badu people always plant gardens on those little islands. That’s how you can see all those wild yams, planting coconuts. If the dinghy sank, you got a coconut there, if no water. If you know how to go up, climb up, you can break those branches down, drink water. Or if you don’t know, you can just skin the coconut, a dry one, underneath.
MR BLOWES: Yes.
WALTER NONA: You can take water from there. That’s the same idea.
328 I consider this evidence of some significance because it indicates that when a Badu elder like Mr Walter Nona is thinking about what makes the islands belong to Badulgal, he talks about how they have been cultivated by Badulgal, and why. He gave some detail in his evidence in cross-examination by the State:
MR WATERS: Okay. Now, going back to when you went to those small islands, when you went there with old Sagigi - one of the islands, for example, you talked about was Yor. Do you remember talking about going to Yor and getting a garden going?
WALTER NONA: Yes.
MR WATERS: Was there any garden there when you first went there?
WALTER NONA: Sagigi already had a garden there.
MR WATERS: He already had a garden did he?
WALTER NONA: Yes.
MR WATERS: Okay. What about at Tuin?
WALTER NONA: Tuin, yes, the people living there and my Dad put a garden there as well and the other people also.
MR WATERS: Other people already had gardens there?
WALTER NONA: Yes.
MR WATERS: Okay. How old were you when you went to Tuin with Sagigi and they already had the gardens?
WALTER NONA: I was 7 or 8.
MR WATERS: Okay. Do you know who owned those gardens there in, say, Tuin?
WALTER NONA: Beg your pardon?
MR WATERS: Do you know who owned the gardens on Tuin at that time?
WALTER NONA: I know it’s Tamwoy family - - -
MR WATERS: Right.
WALTER NONA: - - - my Dad and Mum, Biara’s. Not only them, there’s lots - - -
MR WATERS: Okay.
329 The Badulgal respondents are correct to emphasise the importance of gardens as an indicia of ownership of islands, as I explain below.
330 Later in his evidence, Mr Walter Nona was asked about Dollar Reef, or Koey Maza, which is the large reef immediately to the south of Mua. Mr Walter Nona described how part of the reef, the part “in front of” the island of Tuin (one of the shared islands in the second shared islands determination), is called Maksinin Gud. He then gave this evidence:
WALTER NONA: I think that’s - from there going down is ours.
MR BLOWES: So from Tuin going down to Maksinin Gud, that’s Badu.
331 He then gave this evidence, following along Dollar Reef in an easterly direction:
WALTER NONA: Yes, we got those reefs there, Peta Na Lag, Ruku, Koey Kut
MR BLOWES: Yes.
WALTER NONA: There.
MR BLOWES: All that’s Badu, you say?
WALTER NONA: All them Badu areas.
MR BLOWES: And east from Maksinin Gud, along that Dollar Reef in front of Moa?
WALTER NONA: Moa.
MR BLOWES: Moa. Alright. And - - -
WALTER NONA: But we’re using it together now.
MR BLOWES: Yes. So Badu people, so you’re using it together; you mean all of it, or only - -
WALTER NONA: We work together on those reefs.
MR BLOWES: Yes. What about on that eastern end in front of Moa?
WALTER NONA: What side you meaning?
MR BLOWES: Well, in front of Moa, along east from Maksinin Gud; is that part of it that you use together?
WALTER NONA: Yes, yes, we’re always there.
MR BLOWES: And west from Maksinin Gud?
WALTER NONA: They, you know, they go hunting, you know, the tide is running here in difference; when it’s running west, the high tide there and the low tide from Maksinin Gud going down, the tide is low. When the tide’s running up to the east here now will be high tide and going that way will be low tide, so when anyone’s looking for turtle, you got to look for turtle when it’s high tide on the reef. That’s how we always travel; if it’s high tide we go on that side looking for turtle, for dugong; when it’s low tide, when the tide’s running up, this side now going be water coming up, high tide, so we’re chasing that up for dugong and here behind now from rockhole like that.
MR BLOWES: So - - -
…
WALTER NONA: They’re different tides in here. This tide in our language we call kulis, and in our language there’s another tide they been call him, call that tide, not ura, usalai, that tide afternoon tide that’s running up. Once that’s tide running up, Moa will be low water; Badu will be full tide, there’s a difference.
MR BLOWES: Alright. So along that reef there’ll be different tides flowing?
WALTER NONA: Yes, same. Same.
MR BLOWES: And do Moa people use the tides in the same way as Badu people; do you know that?
WALTER NONA: The same way as Badu people.
MR BLOWES: Alright. And they use that reef right along there?
WALTER NONA: Mm. Very few people know the tides, like Badu high tide tell us when time to east, Badu high tide; Mabuiag low tide, they know how, Mabuiag low tide, and they know it where Koteid is, Koteid is on the low tide.
332 In this evidence Walter Nona is describing how the ebb and flow of the tides affects the way the reefs are used and accessed. He is describing areas shared between Badulgal and Mualgal because how the area is used depends very much on tide and wind.
Walter Nona then gave some evidence about Dadalai:
MR BLOWES: Okay, alright. And what about Dadalai?
WALTER NONA: You can, we can see Dadalai.
MR BLOWES: Yes.
WALTER NONA: We can see Waral.
MR BLOWES: And this, you said there’s a lot of Badu people buried on Dadalai, and you mentioned some - - -
WALTER NONA: Yes, there’s one was there, there’s tombstone is built there.
MR BLOWES: Yes. And like, you mentioned too, lot of people buried on Tuin after that big sickness, that killed that - - -
WALTER NONA: Oh yes, after sick, my dad’s first wife, she’s die there, and my brother Michael Benton also buried there, on that Dadalai.
333 He was then asked about the rest of the islands in the second shared islands determination, and gave this evidence:
MR BLOWES: And you’ve been fishing there, pearling there, swimming for trochus, all around those places, and I just want to ask you about those names, those names. Do those names come from any island or - - -
WALTER NONA: Those names come from our ancestors.
MR BLOWES: Whose ancestors?
WALTER NONA: Badu ancestors; they named those places. What I learnt from Sagigi - - -
MR BLOWES: Just wait a bit till, they’ve got to change the tape. Wait a minute Walter he’s got to change the tape. Alright. You were telling us I think that you learned those places from Sagigi?
WALTER NONA: Sagigi and the other elders.
MR BLOWES: Yes.
WALTER NONA: No moa, the others.
MR BLOWES: Now, so all those places got Badu names?
WALTER NONA: Yes.
334 This evidence is consistent with the case of the Badulgal respondents.
335 Walter Nona then gave some evidence about Ului:
MR BLOWES: Did those old men tell you which people used to live on those places and work there and fish there and hunt, use those areas?
WALTER NONA: Well, in Ului there were Nomoa and his relations, they were there, used to live there. There a water there, spring water is called Mokain Muki, I think I’ve got in my what’s-a-name there, the water there.
MR BLOWES: All of those places we’ve called out just now, you said they’re Badu names?
WALTER NONA: Yes.
MR BLOWES: So do you have any understanding, under your custom, whether anybody, whether those places belong to anyone?
WALTER NONA: Well, I know they belong to Badu.
MR BLOWES: And what about the waters all around them as well, in the sea around them, those places?
WALTER NONA: Well, it is ours, the seas would be ours also.
MR BLOWES: Alright. And what about, is it, which people if any - so Badu people can use them; are there any other people who can use them right way?
WALTER NONA: Yes. Nothing to stop them because we are one, I been said that before.
MR BLOWES: One with who?
WALTER NONA: One people for Torres Strait. With Moa, Mabuiag and the other Torres Strait islands.
MR BLOWES: Right.
WALTER NONA: That’s where thubud is coming in.
336 A little later he was asked more questions about Ului and gave this evidence:
MR BLOWES: Alright. And then you mentioned, we’re going to ask you also about Ului, that west island and there’s a well there called Mokani Nguik.
WALTER NONA: Mokani Nguik, yes.
MR BLOWES: And very close to Ului is an island you call Duwandad?
WALTER NONA: Duwandad, yes.
MR BLOWES: Which is good for dugong at high tide?
WALTER NONA: Mm.
MR BLOWES: Now can you tell the Judge whether, which people used to live on that island, where were people from?
WALTER NONA: From Badu, the same family, Nomoa, Manuel’s father, Manuel’s grandfather, great-grandfather. They stay there.
MR BLOWES: Which place did they stay?
WALTER NONA: Ului.
MR BLOWES: Ului?
WALTER NONA: Ului, that’s on west island.
MR BLOWES: Yes. Any other people you know who lived on Ului?
WALTER NONA: I know there’s someone lives there also, but I’m not sure, otherwise I’d give the name which is not right.
337 This evidence is important. It is consistent with the case of the Badulgal respondents, and inconsistent with the applicant’s case. Walter Nona was a very senior Badulaig. His evidence was given prominence by Finn J. I consider I should also afford it weight. He is clearly saying that Ului belongs to Badulgal, and that Badulgal will allow others to use it as they “are one”.
338 In his cross-examination by the Commonwealth, Walter Nona was prompted more expressly to associate the sharing with post-colonisation changes:
MS WEBB: Yes. And did you hear from those old people that before the missionaries came people were very protective of their islands and there was fighting between islands in the Torres Strait?
WALTER NONA: Yes.
MS WEBB: And then after the missionaries came did they tell you that that fighting stopped?
WALTER NONA: Stopped. No more fighting when the missionaries settled down.
MS WEBB: Yes. And do you remember the old people saying why that fighting stopped?
WALTER NONA: Well, the light come to Torres Strait.
MS WEBB: Yes. Was that because the church was saying - - -
WALTER NONA: The church was built and people know that there is a God in heaven and that’s it.
MS WEBB: Yes. And was the church teaching that - - -
WALTER NONA: Teaching us better ways to go.
MS WEBB: Better ways to go, to share with other islands?
WALTER NONA: Share each other.
339 Mr Nona was then asked about Warral. This is his evidence in examination-in-chief on the subject:
MR BLOWES: We’re going, you said it’s the same to the south of those places including the reefs and waters around Waral, Hawkesbury Island.
WALTER NONA: Yes.
MR BLOWES: You said when people went by sea to Thursday Island they camped at Waral, and they could go up the hill to see if it’s clear, and you mentioned Uria, that Badu man lived on the south side of Waral?
WALTER NONA: Yes.
MR BLOWES: And Samat Laza’s father, Adain Laza?
WALTER NONA: Yes, Laza.
MR BLOWES: Or grandfather Bagari lived on that north side of Waral. You said there’s a lagoon on the island that crocodiles go up, and Seurl is that southern point on Waral on the reef, on the reef there to the south of it, Seurl. You got that one, S-e-u-r-l. You hearing me?
WALTER NONA: That’s the reef, Seurl.
MR BLOWES: Seurl, alright.
WALTER NONA: Seurl, that one.
340 This evidence is again consistent with the case of the Badulgal respondents, as Walter Nona is describing only Badulgal occupying Warral. I note that the reef Walter Nona refers to is not one I understand has been referred to by that name in this proceeding.
341 After being asked again about Ului, he was then asked who he knew had lived on Warral:
MR BLOWES: What about on Waral?
WALTER NONA: Waral, there’s Uria living there, his family, and Laza living there.
MR BLOWES: Anyone else you know?
WALTER NONA: In the old - when you go to like Ului, what’s that, Waral, behind side of the hill there’s a big opening; that’s where they got their houses there. They’re still today, the same old things still there, where they been leave.
MR BLOWES: Where was Adain Laza from?
WALTER NONA: Adain Laza from Badu.
MR BLOWES: And Bagari?
WALTER NONA: What Bagari?
MR BLOWES: That grandfather, Bagari? Samat Laza’s father Adain or grandfather Bagari. I may not - - -
WALTER NONA: He’s might, but I’m not too sure.
MR BLOWES: Okay.
WALTER NONA: Because I’ve got one old fella, old Solomon Getawan - he wrote to me in language about Laza. He said Laza is the third son from (Kwiam).
MR BLOWES: That third son from Kwiam?
WALTER NONA: Kwiam, yes, and so he’s the only son, from third son, no sisters. They was taken by Babia family to Badu, so he been here, grow up in Badu.
MR BLOWES: Who’s that Kwiam?
WALTER NONA: Kwiam, that’s in the fighting warriors, been in Mabuiag. I think I know he’s from, I think he’s from Mabuiag but I’m not too sure. Don’t want to tell you lie. I might say he’s from Mabuiag there, maybe I lie. So all I know is that.
MR BLOWES: Yes.
WALTER NONA: Ancestors told me they never mentioned anything more.
MR BLOWES: So they are the people - sorry, who did you learn from about those people who were living on Waral and Ului?
WALTER NONA: I learnt from those ancestors like Sagigi, Nomoa and then there’s all those like Kokowa and they said there’s a warrior who’s living on the south side, and Laza family on the north side.
MR BLOWES: And his family on the north side, right. That word Waral, for that name, do you know what language that is?
WALTER NONA: I can’t tell you that language. I know that’s how ancestors call that place, Waral, and Ului, they named those places and Dadalai the same.
MR BLOWES: Alright.
WALTER NONA: But there’s a small valley, you know, the coconuts there, we call Sunsuit Island; that place used to be Baira and his family live there; you can see the coconuts still there, growing.
MR BLOWES: Which family is that?
WALTER NONA: Baira family.
MR BLOWES: Baira family at - - -
WALTER NONA: That big family here at Badu.
MR BLOWES: At Sunsuit, alright. Now those places we’re talking about now, Waral and Sunsuit and Ului, do you have any, did you learn anything from anybody about whether they belong to someone, belong to anyone?
WALTER NONA: Well, I learn from the ancestors they’re our islands.
MR BLOWES: And when you say our islands?
WALTER NONA: That’s Badu. Because you can see the people living there and they die there.
342 Kwiam was an ancestor about whom Haddon’s Mabuiag informants told quite a long story, which is recorded in the extracts from the Cambridge expedition in evidence. It appears he was from Mabuiag. In Dr Murphy’s 2000 Badu connection report he states:
Badulgal were participants in the cult of Kwiam at Mabuiag, and in essence this was a cult of warfare and headhunting (Haddon 1904:67-83, 298-307).
343 This evidence is entirely consistent with the case of the Badulgal respondents. Walter Nona does not volunteer that any other group has an interest in these islands. He does not volunteer any stories about any people other than Badulgal occupying those islands or being buried there.
344 Mr Blowes then asked Walter Nona about Mualgal:
WALTER NONA: Moa can come there, because I know before, I not be there, they have the big meeting between Badu and Moa; Badu people said Moa can use those islands. They belong to Badu but Moa can use it.
(Emphasis added.)
345 This evidence from a very senior Badulaig could not be clearer. It is persuasive evidence in favour of the case for the Badulgal respondents. Mr Blowes then asked Walter Nona to focus on times before the meeting he referred to. Walter Nona answered:
WALTER NONA: Before that meeting believe it is Moa and Badu people, wasn’t with here. And they said, those place it belongs to Badu, but Moa can use it.
346 It is difficult to understand this answer, with respect. I do not consider Walter Nona is saying that Warral was originally considered to be owned jointly by Badulgal and Mualgal. I consider the position he described in the extract I have quoted in bold is his genuine belief about the position under traditional law and custom.
347 Mr Walter Nona was then asked about the three reefs to the south of Warral. Again, he described how and why he understood from his ancestors that those reefs belonged to Badulgal.
MR BLOWES: You mentioned, this is a paragraph 323, you’ve mentioned Badu fishing grounds go down towards Thursday Island, far as and including Zuguin Maza.
WALTER NONA: Yes.
MR BLOWES: That’s No.1 reef, and you’ve said there are some small reefs in front of it called Kazarigad?
WALTER NONA: Yes, that’s right.
MR BLOWES: And No.2 reef, Dadatiam and No.3 reef Giai Maza?
WALTER NONA: Mm
MR BLOWES: And that No.3 reef you said is not far south of Waral and there’s an open passage there, but I’ll ask you, that name Giai Maza, do you know where that name comes from?
WALTER NONA: That’s from Badu people. All those reefs that are laying across from Karal Gat just so when Badu peoples name.
MR BLOWES: And what do you know, if anything, about who put those names?
WALTER NONA: Those names come from the ancestors, because why they call that (Karalga), that’s a (zamini) that’s a tool, person been sent by Kwiam to get hawksbill turtle. They been kup mari that hawksbill turtle in Mauai, that’s Wednesday Island; they took it back to Mabuiag. When the Kwiam saw it, he want every shell got to be there, says missing one shell, missing. He told them go away, go and look for the shell, so they go back, they go to that Wednesday Island, coming back, till they find that shell on that reef, so they call it Karal Gat. They take that shell and take it back to Kwiam.
MR BLOWES: And that Karal Gat, where’s that place?
WALTER NONA: That’s round, south of Mukanab.
MR BLOWES: In the south of Mukanab.
WALTER NONA: Karak and Mukanab, Karak and Karal Gat. Then Giai Maza, Dadatiam and Sunsuit.
MR BLOWES: Okay, alright. Now, what you’ve just been telling us, including that there’s Badu names for those No.1, No.2, No.3 reefs, where did you learn that from, who did you learn that from?
WALTER NONA: I learned that from ancestors.
MR BLOWES: Can you tell us which ancestors you learnt that from?
WALTER NONA: That’s Sagigi, those fellows I name, Nomoa, those ancestors, Kokowa, Tanu.
MR BLOWES: Okay. And did they tell you about whether those areas, those three reefs whether they belonged to anyone?
WALTER NONA: Which reef do you mean? I’m talking about - - -
MR BLOWES: We’re talking about Zuguin Maza, Dadatiam and Giai Maza.
WALTER NONA: They said those reefs are Badu, because that’s why Badu people named those places.
MR BLOWES: Yes. And did they tell you anything about, alright, their Badu places but whether only Badu can use them or other people; what did they - did they tell you anything about who can use them?
WALTER NONA: Well, I was telling before, the others can use these reefs as well.
MR BLOWES: Which others?
WALTER NONA: Yes.
MR BLOWES: Which other people?
WALTER NONA: From Moa, Mabuiag, the other Torres Strait Islanders.
(Emphasis added.)
348 After this emphatic evidence, Mr Blowes asked Mr Water Nona about Kaurareg, and whether they could use the reefs. This was his evidence:
MR BLOWES: Did you ever hear them talk about Kaurareg people?
WALTER NONA: Yes, I heard that, but I’m not too sure.
MR BLOWES: Right. You’re not too sure?
WALTER NONA: Yes.
MR BLOWES: Can you say at least what you heard from those old people; might not be much, might be a lot, I don’t know, but just tell me - - -
WALTER NONA: They only been mentioning about that, all the reefs named they can, those are ours, belongs to Badu.
MR BLOWES: So all the - - -
WALTER NONA: They never mention anything about Kaurareg.
MR BLOWES: So you, when other people can come in there and use that area, the people that you’ve mentioned, Moa and other Torres Strait Islanders - - -
WALTER NONA: Yes, they can - - -
MR BLOWES: - - - under your custom, as you learnt it from those old people, do they have to ask anybody or behave in a certain way or anything when they’re down in that Badu area?
WALTER NONA: Well, long as they work and they damage nothing, that’s it.
…
WALTER NONA: Well, all I know is that they only told me, they never mentioned the rules, just that the reefs are Badu, that’s all.
…
WALTER NONA: I’m not talking for myself like this; got that from our ancestors, that’s all they gave me, that’s what.
349 Mr Blowes pressed Mr Walter Nona again about the situation about Kaurareg. Mr Walter Nona began answering by reference to recent meeting and Mr Blowes asked him to go back to the “old men”. Mr Walter Nona then gave this answer:
WALTER NONA: Well, they don’t, when they told that they never mention about Kaurareg.
…
MR BLOWES: Alright. Now, do you have any understanding from information passed down to you from your ancestors about Kaurareg people or where they’re from? What’s your understanding?
WALTER NONA: When they talk to me they never mention about Kaurareg people
350 Thus, Walter Nona’s understanding about these three reefs differs from that of Fr Manas. Ms Pritchard, for the Kaurareg, cross-examined Mr Walter Nona about his knowledge of Kaurareg and what he said in examination-in-chief about the limits on their sea country (and island country). In his first few answers, Mr Walter Nona was adamant all he had been told by his elders was that Kaurareg were from Mt Adolphus. When pressed about whether Kaurareg were also from Horn Island, he responded:
WALTER NONA: They’re staying on Horn Island, that’s right.
MS PRITCHARD: You know that that island belongs to Kaurareg people?
WALTER NONA: No.
351 When asked about Wees Nawia and whether he was Kaurareg, Mr Walter Nona said:
WALTER NONA: I thought he was a Poid. I don’t know about Kaurareg.
MS PRITCHARD: Did you ever hear the story about - - -
WALTER NONA: Because that’s last time before I come to know today.
MS PRITCHARD: I’m sorry I didn’t hear that answer. What did you come to know today?
WALTER NONA: Yes, he’s from Kaurareg.
MS PRITCHARD: You only heard that today?
WALTER NONA: Yes, because I heard what Manas was talking about.
352 Ms Pritchard later asked Mr Walter Nona about the story of Zurath, which was determined as one of the shared islands with Mualgal prior to Mr Walter Nona giving his evidence. Mr Walter Nona then told the story of Dogai, who lived at Zurath. Ms Pritchard then asked him about the story of Waubin:
MS PRITCHARD: Thank you. The story of Waubin, do you know that story?
WALTER NONA: I don’t know nothing about that and even I don’t know Waubin.
MS PRITCHARD: Did you ever hear Wees Nawia tell that story?
WALTER NONA: No, he never give me that story.
MS PRITCHARD: Or you never heard Billy Wasaga tell that story?
WALTER NONA: No.
MS PRITCHARD: Did you hear Father Manas tell that story at Moa the other day?
WALTER NONA: Yes, I heard that.
…
MS PRITCHARD: Have you ever heard of Waubinin Malu? Does that mean anything to you?
WALTER NONA: I don’t know. I can’t answer the question. I don’t know.
353 I infer Mr Walter Nona, by these answers, was indicating he did not want to answer these questions, or it was not appropriate for him to do so, not being a Kaurareg person. Ms Pritchard then turned to the subject of Warral. Mr Walter Nona was cross-examined about how many times he had been to Warral, what parts he had been to, and the rocks in the south with engravings, which Mr Walter Nona said he had not seen. Warral came up again a little later in one of Mr Walter Nona’s answers:
MS PRITCHARD: Thank you. Now, I’ve just a few questions. I want to understand the concept of Badu sea territory. They’re my next questions, Mr Nona. Law and custom ways how do Badu people know what is Badu sea country?
WALTER NONA: Because they’re travelling every time by canoe. Waral is their resting place. They travel from here and rest in Waral. And the scout got to go up and look. If it’s open, or no-one, they rest there for the day. The next day they go across, because there’s inner islands, there’s Prince of Wales, those other islands, go across there.
MS PRITCHARD: So, do I understand that law and custom way, wherever Badu people go fishing, that is Badu sea country?
WALTER NONA: Yes.
354 He was then asked about how he knew which places were shared and which were owned only by one group:
MS PRITCHARD: And how do you know law and custom way which places are owned by Badu and by Moa?
WALTER NONA: Both the islands, the reefs across from - between Badu and coming - that Dollar Reef there we used to work together there. Old people allowed us to work there and we worked there and they worked there also.
MS PRITCHARD: And that’s the law and custom from the time of the ancestors?
WALTER NONA: Before there.
MS PRITCHARD: And in the time of the ancestors there was not much mixing between Badu and Moa was there?
WALTER NONA: Well, during - when - the light not coming to Torres Strait. When the light comes everyone join together, should be one. You know what I mean?
MS PRITCHARD: Thank you. And - - -
WALTER NONA: When the Christianity come in.
MS PRITCHARD: Thank you, Mr Nona. Does it also have something to do with intermarriage?
WALTER NONA: Yes, intermarriage. We’ve got a lot of Moas who marry Badu and Badu and Moa.
355 Ms Pritchard also asked about Dadalai but in my opinion nothing in the cross-examination alters the reliability of Mr Walter Nona’s evidence in examination-in-chief.
356 He was then asked about who lived on Warral and gave this evidence:
MS PRITCHARD: Thank you. And you’ve told us that a Badu man called Uria lived on the south side of Waral. Is that correct?
WALTER NONA: That’s correct.
MS PRITCHARD: About when was that?
WALTER NONA: Well, that’s – he’s lived there all his life in Badu. When Badu people got there. He’s there. But when the Christianity been coming in, they coming back to the island.
MS PRITCHARD: Is Mr - is Uria still alive?
WALTER NONA: He’s dead.
MS PRITCHARD: He’s dead. When did he die approximately?
WALTER NONA: I can’t tell you. You can ask the devil.
MS PRITCHARD: Okay. And Grandfather Bagari - Bagari, is that how you pronounce it?
WALTER NONA: I can’t answer you the question.
MS PRITCHARD: Samat Laza’s father?
WALTER NONA: Yes, Samat Laza’s father, yes. His brother was live there too on the north side of Waral.
MS PRITCHARD: And can you tell us when approximately that was?
WALTER NONA: These two people, their families live there on Waral.
MS PRITCHARD: And I think you said the houses are still there aren’t they?
WALTER NONA: What?
MS PRITCHARD: Are the houses still there on Waral where the families lived?
WALTER NONA: Only the place where they been build a home.
MS PRITCHARD: Okay.
WALTER NONA: You can see that Waral at the back of the hill, a big opening.
MS PRITCHARD: Mr Nona, what people have you been to Waral with? Who have you been there with?
WALTER NONA: I’ve been there many times myself.
MS PRITCHARD: Yes, I know.
WALTER NONA: Myself and with someone else. What more name I can give?
MS PRITCHARD: Alright, I’ll ask another question. Have you ever been to Waral with any of the elders?
WALTER NONA: I always travel by myself but not the elders, younger people.
357 Mr Walter Nona was asked about Ului. He said:
MS PRITCHARD: Thank you. You just mentioned Ului. Have you got any Badu stories for Ului?
WALTER NONA: Well, we’ve got water there that’s called Mokani Nguik. That’s how our people living there.
MS PRITCHARD: But there’s a well there isn’t there?
WALTER NONA: Yes, there is.
MS PRITCHARD: And that’s good for planting coconuts?
WALTER NONA: Yes, that place is good. Yes, that’s good. Anywhere you can plant coconut.
358 Finally, Ms Pritchard cross-examined Mr Walter Nona about the three reefs south of Warral:
MS PRITCHARD: Did you ever go to any of those reefs with Badulgal elders?
WALTER NONA: Yes, because they named those places. I told you before.
MS PRITCHARD: Yes, but I asked you did you ever travel to those reefs with any of the elders?
WALTER NONA: Yes, we’re always looking for - like dugong and turtles always there. When we cross to TI always there fish before we go to island - our Thursday Island. Get fish to our families here. It’s what we always do.
MS PRITCHARD: Which elders did you go to those reefs with?
WALTER NONA: Badu elders. They named those places.
MS PRITCHARD: Those reefs are a lot - - -
WALTER NONA: Ancestors.
MS PRITCHARD: Those reefs are a long way from Badu aren’t they?
WALTER NONA: But they named those places.
MS PRITCHARD: Did you seek permission from anyone to go to those reefs?
WALTER NONA: What we got to get permission for?
MS PRITCHARD: Does Badulgal have any stories for those reefs, Mr Nona?
WALTER NONA: I think so because that’s why they named those places but I don’t know the story. But they know - the places were named by Badu people.
MS PRITCHARD: One final question, Mr Nona: can Kaurareg people use those reefs?
WALTER NONA: I can’t answer you that question, otherwise I think if I said yes, Badulgal maybe will get sad with me. I’ve got to go back to them and ask. If they said yes, I said yes. If they said no, I said no.
359 As a senior Badulaig, Walter Nona’s evidence is consistently, substantively and clearly in favour of the case being put in this proceeding by the Badulgal respondents. I attribute it weight. Further, Walter Nona was emphatic about the position under traditional law and custom in terms of Kaurareg not having rights and interests of a primary kind in both Warral and Ului, and in the reefs south of them. He had been told by his elders that Kaurareg did not.
360 Walter Nona also emphasised that, post-colonisation, inter-marriage has meant that, in effect, more reciprocity and permissive use occurs:
MR BLOWES: Yes. What about, you didn’t - did you know or was there any stories about people trading things with Moa people?
WALTER NONA: No.
MR BLOWES: Buying things from each other that way?
WALTER NONA: No. They don’t trade nothing. I never heard.
MR BLOWES: Alright. But if you want something from Moa people, can you get something from Moa people?
WALTER NONA: That’s, well I can’t answer you that question.
MR BLOWES: Alright. If you ask people on Moa for something, is there an answer they should give if Badu people ask Moa people for something, under your custom is there an answer they should give? Like you ring up over there and you want something from their place?
WALTER NONA: Well, no, because they is different; I been mentioning that before. Inter-marriage bring us together.
MR BLOWES: And when inter-marriage brings you together, what does that mean if you want something from over there or they want something from over here?
WALTER NONA: If they ask for something we give them; if they ask for something we give them. That’s thubud, or a gud pasin or a kozan.
(Emphasis added.)
361 In cross-examination by the Commonwealth, Walter Nona was asked to confirm that the Tamwoy family he spoke about in connection to Warral and Ului were South Sea islanders originally. He agreed. He then gave this evidence:
WALTER NONA: - - - but Biara belongs to Torres Strait.
362 Counsel also asked him about what happened to gardens when people pass away:
MS WEBB: Yes. And when they get passed on, is that the rule for Badu: they get passed on to the eldest son?
WALTER NONA: That’s right.
363 Counsel also asked Walter Nona about gud pasin:
MS WEBB: Okay. I just want to ask you just a quick question about that word “gud pasin”. That gud pasin you’ve talked about - - -
WALTER NONA: Yes.
MS WEBB: - - - that’s a Creole saying you told us?
WALTER NONA: Mm.
MS WEBB: Yes. Just to check with you, is there a language saying for that gud pasin?
WALTER NONA: Yes, mina paua.
364 There was nothing in any of the cross-examination of Walter Nona which has caused me to depart from my views that his evidence in examination-in-chief was reliable. That is the view Finn J took of his evidence, and I agree.
365 Walter Nona was also clear in his evidence during cross-examination by the State that so far as the sea was concerned, there was more wholesale sharing, from times before colonisation, although he persisted in identifying areas of the sea as belonging to Badulgal:
MR WATERS: Okay. So when you say they’re Badu but those other people can use them, do you mean that they’re shared?
WALTER NONA: Share, yes, that’s right.
MR WATERS: Okay. And is everybody equal about the sharing or is there someone that’s sort of the special owner of those?
WALTER NONA: No, if someone wants to work they can work there. Nothing to stop him.
MR WATERS: Okay, that’s in the sea we’re talking about?
WALTER NONA: That’s in the sea.
HIS HONOUR: That was the clarification I was just about to ask for.
MR WATERS: Thank you. And when you say if other people want to work those areas, I’m just going to ask you about different people. If say Saibailgal people come down, is that okay for them?
WALTER NONA: Well, they come and see us and just let them know we want to work there, and that’s it.
MR WATERS: Okay. And do they always do that?
WALTER NONA: Yes.
MR WATERS: And if they don’t does anything happen?
WALTER NONA: No.
MR WATERS: Is that just good manners?
WALTER NONA: Yes, good manners, that’s all.
MR WATERS: And that good manners, when did that start up?
WALTER NONA: Well, when I was living there I heard that. That’s before me.
MR WATERS: So, before your time?
WALTER NONA: Yes.
366 Mr Baira was a Badulaig. He was the person said to have had one of the gardens on Warral.
367 In examination-in-chief, he was asked about the traditional practices, as he understood them, for taking resources, such as crayfish, from the sea around the islands to the north and west of Badu:
MR BLOWES: Yes. Inside your area can somebody from Moa, if it’s somebody from Moa?
TOM JACK BAIRA: Yes, Moa and Mabuaig, if I find Moa dinghies, Mabuaig dinghy working on the back here - - -
MR BLOWES: You’re pointing to the north side and the west side.
TOM JACK BAIRA: - - - it’s alright, because we all share, shared area, even from, we share from Badu right up to No. 3 Reef, Waral.
MR BLOWES: I’ll come to that.
…
MR BLOWES: So someone, we’ve heard some evidence someone like Keith Pabai in his dinghy going from TI up the back of Badu, and around Mabuaig. Your understanding of how that works under your laws is what, he can just go or did he call in, should he call in, or how would that work?
TOM JACK BAIRA: Sometimes he call in, sometimes they just go straight past.
368 Mr Baira was then asked about another example:
MR BLOWES: Alright. And when you were talking about sharing before – I’ll come back to that. Let’s ask you this, I’ll ask you this one: out the back there of Gaubuth just close by, close by Badu, what if it’s somebody from Murray Island, you come across a dinghy and the Murray Island people are there, they’re getting crayfish and that; how would that work under your way of looking at it, your laws and customs? They haven’t called in or anything? If they haven’t called in there first?
TOM JACK BAIRA: Well, they have to come out the front and see the elders.
MR BLOWES: And why should they do that?
TOM JACK BAIRA: Respect.
MR BLOWES: Yes?
TOM JACK BAIRA: Mina pawa.
MR BLOWES: Okay. And once they’ve, if they do that?
TOM JACK BAIRA: They free.
MR BLOWES: And is that just good manners or - - -
TOM JACK BAIRA: Yes.
MR BLOWES: Yes? And if they don’t do that?
TOM JACK BAIRA: We send them off.
369 Mr Baira gave many more examples in examination-in-chief, including relating to the sea and uninhabited islands to the north of Badu, which he said was shared between the Mabuiag People, Mualgal and Badulgal, about the need to ask permission from the groups to whom the area belonged. It is not necessary to set out that evidence here, but simply to note the clarity of it.
370 Mr Baira was then asked by Mr Blowes, and by reference to a map, to look down the west and south west and south of Badu Island and identify which islands he said “are ours” (ie Badulgal). Mr Baira referred to Kanig, one of the islands in the second shared islands determination. The second shared islands determination occurred in 2006, and Mr Baira was giving this evidence in 2008.
MR BLOWES: You’re moving your hand across the map, down - - -
TOM JACK BAIRA: Across Dollar Reef.
MR BLOWES: Across Dollar Reef?
TOM JACK BAIRA: At the back - yes, towards Waral. They still ours, because we share - Badu and Mua share that one – that’s all, those small islands.(sf1,49:43)
MR BLOWES: When you share them, what do you mean? They belong to someone really, or what?
TOM JACK BAIRA: Yes, they belong to us. Those - our ancestor was working to that island, making garden.
MR BLOWES: When you say “us” you mean - you talking about Badu or - - -
TOM JACK BAIRA: Badu and Mua.
MR BLOWES: Alright. And those small islands that you’ve been talking about: anybody live on them - like, got a house there, living there all the time?
TOM JACK BAIRA: Any - - -
MR BLOWES: On any of those small islands that you’ve been talking about
TOM JACK BAIRA: Before - before, on Waral, there was people living there for - for garden.
MR BLOWES: Living there for gardening.
TOM JACK BAIRA: Yes.
MR BLOWES: Yes? Who - do you know which people?
TOM JACK BAIRA: No, I just heard that.
MR BLOWES: Alright. And any other - do you know where they are from, those people who were at that gardening area on Waral?
TOM JACK BAIRA: Badu.
MR BLOWES: From Badu.
TOM JACK BAIRA: Badulaig, yes.
MR BLOWES: Yes? Any of those other small islands - you heard about people using them for - for gardening?
TOM JACK BAIRA: Yes.
MR BLOWES: Yes? What - can you just call out some of them that you’ve heard about been used for gardening?
TOM JACK BAIRA: Zurath, Maitak, Tukupai, Yor Island, Tuin.
MR BLOWES: And all those islands: they belong to someone really?
TOM JACK BAIRA: Yes. The people who making they own garden there, they gardening.
MR BLOWES: Yes? Where from?
TOM JACK BAIRA: From Badu.
MR BLOWES: And what about the - the - the beaches on those islands? Do those beaches belong to someone?
TOM JACK BAIRA: Belong to Badulaig.
MR BLOWES: And reefs and - - -
TOM JACK BAIRA: Reefs, yes.
MR BLOWES: - - - water?
TOM JACK BAIRA: Water.
MR BLOWES: What about things that are in the water, amongst all those islands?
TOM JACK BAIRA: Fish, that belongs to us.
(Emphasis added.)
371 This evidence is consistent with the case for the Badulgal respondents.
372 Later in his evidence in examination-in-chief, Mr Baira clarifies how Badulgal “get” ownership, and what he says is clearly referable to pre-colonial traditional law and custom:
MR BLOWES: Right. I think we’re getting close to finishing. When you talked about Badu area and you talked about the small islands and the sea around there, and all the way out west there, so Badu - Badulgal, today, have got Badulgal area. Who did they get that from? Who did Badulgal people this generation get Badulgal area from?
TOM JACK BAIRA: It was handed down by our fathers.
373 Finn J then asked Mr Baira to clarify what did appear to be an inconsistency in parts of his evidence, concerning the place of Mualgal in these islands and the sea around them:
HIS HONOUR: - - - I’m slightly confused. When you put your hand down here before, you said – that’s the area going south of Dollar Reef to Waral, you said Badu and Moa. When you go across towards Tuin, you were saying Badu only, or you were saying Badu and Moa?
TOM JACK BAIRA: Yes. Badu people - all they - make they gardens.
HIS HONOUR: Yes, and people from Moa?
TOM JACK BAIRA: Yes, people from Moa also on Tuin. Yes.
MR BLOWES: So the places where you’ve mentioned about gardening, can - under your rule, your laws and customs, can Moa people use those areas, too, or are they only - - -
TOM JACK BAIRA: Yes. Yes. Because on those islands - when we go to the small islands, when we see a drooping coconut on the beach, we got new fruit coming out, we always take them coconut and plant, in case, if the dinghy in trouble and the engine, engine running without petrol, if they land on the island, they know they survive. They got something to eat. That’s why we open those island. We just sharing. If I got a garden on the island and they land on that island, they can do it what they ever like, because they sarup. That’s what we call the sarup; they lost.
MR BLOWES: If they’re sarup - what if they’re not lost and they’re just going there, taking things from that garden
TOM JACK BAIRA: Then that’s stealing.
MR BLOWES: Hey?
TOM JACK BAIRA: That’s stealing.
MR BLOWES: That’s stealing.
TOM JACK BAIRA: We call that puru, puru ayman. Mean taking somebody’s something.
MR BLOWES: Alright. In that area you’ve talked about, in - south of Badu all the way down to Waral, you including Ului in that, or - - -
TOM JACK BAIRA: Yes, Ului also.
374 Emphatically, this is Mr Baira as a Badulaig, an elder, in this case representing the Badulgal people’s position that these islands, including Warral and Ului, belong to Badulgal. He recognises that by customary law people who are sarup on these islands can and should take what they need. Otherwise, he describes any taking by non-Badulgal as “stealing”.
375 However, Mr Baira then qualifies his evidence, but in a specific way, in relation to Mualgal.
MR BLOWES: Alright. And in that area you’ve been talking about, around the small islands, if you go to any of those places, or use any of those places or any of that water, can you just go, or do you need permission from somebody, or how does it work under your law, for you, Tom Jack?
TOM JACK BAIRA: I just go.
MR BLOWES: How come?
TOM JACK BAIRA: Because I’m a Badulaig.
MR BLOWES: And is it the same for other Badulaig or only you?
TOM JACK BAIRA: Yes.
MR BLOWES: And - - -
TOM JACK BAIRA: Because Saint Paul, Kubin, Moa, we - we just like one buai, in one family. Because we are intermarried.
MR BLOWES: Alright.
TOM JACK BAIRA: Real close.
MR BLOWES: And when you’re in that area, do you understand that somebody else from Badu or Moa or Mabuiag could tell you to leave that area?
TOM JACK BAIRA: No.
376 There are then some wider questions asked about who a person like Mr Baira can tell to leave these islands, but Finn J intervenes and suggests the questions are ambiguous and Mr Blowes agrees, and leaves the evidence as it is.
377 In my opinion, the correct understanding of Mr Baira’s evidence is this. He is adamant the islands to the southwest and south of Badu, including what are now determined as shared islands, and Warral and Ului, belong to Badulgal. He volunteers (one of the few times this occurs) that he (and Badulgal) must include Mualgal because they are one family, and are intermarried.
378 Mr Baira was then asked about the three reefs south of Warral and towards Muralag. He gave this evidence:
MR BLOWES: Alright. Now, I think you’ve – you’ve already mentioned about coconuts, and planting coconuts. Now, you mentioned just then Zuguin. Perhaps you could - look at the Map 2 again, the one that’s underneath that one. Yes, put that Map 2 on the top of that. You mentioned Zuguin. I just want to ask you - in about that area, down there, does that belong to somebody in your laws and customs?
TOM JACK BAIRA: Yes. Like, I heard before from my great - ancestors were travelling from - in the warrior time, from Badu to Prince - Prince of Wales. That’s what they call Muralag. That’s a Badu language name. And all those reef - Zuguin, Dadataim Island, Giai Maza – that’s the Badu language.
MR BLOWES: And - - -
TOM JACK BAIRA: And they used to be travelling from Badu to Prince of Wale and go - go by canoe.
MR BLOWES: And do you have a belief about who those reefs belong to?
TOM JACK BAIRA: Probably Badu people.
MR BLOWES: When you say “probably” Badu people, what do you mean?
TOM JACK BAIRA: Because Kaurareg want to get this are[a], but we said no, these reef are named by our ancestors; it’s probably ours.
(Emphasis added.)
379 This is the first time Mr Baira has mentioned the Kaurareg People as possible claimants under traditional law and custom of reefs, or uninhabited islands in the Western Torres Strait, beyond the area of their home islands. This is the significant aspect of his evidence on this issue for the present proceeding. Kaurareg have not featured in his world view of the pre-colonisation situation until he is asked about these three reefs. Then he speaks in a contemporary sense about Kaurareg aspirations, not the pre-colonial position.
380 Mr Baira was certainly not asserting every island and area of the sea belonged to Badulgal. He was asked about Naghir (Mt Ernest), which is located in the open sea to the east of Mua, and gave this evidence:
…now about that Naghir area - Naghir and Gitalai and Sauraz. Again, that same question: from what you’ve learned from - handed down to you, do those - does the sea in those - in that area belong to anyone - in Naghir, Sauraz, Gitalai area and back towards Moa and Badu?
TOM JACK BAIRA: They belongs to us.
MR BLOWES: Belong to who?
TOM JACK BAIRA: Belong to us.
MR BLOWES: Who’s “us”?
TOM JACK BAIRA: Moa.
MR BLOWES: So - - -
TOM JACK BAIRA: Moa and Badu.
MR BLOWES: - - - you include - yes, alright. Moa and Badu. And do you have - what about Naghir itself? Have you heard anything about people from Naghir and - or where - who - who does Naghir belong to?
TOM JACK BAIRA: Naghir belongs to Moa. What I heard from my parents, the olden - olden times, like time before, when the warrior - warriors were still fighting, when the warriors from Mabuiag and Cook - Badu, come over to Moa, they always take their children, their wife, put them in the canoe, they bring them to Naghir. They hide them – what’s-a-name - kids and wife - they wife, al the woman, in Naghir.
…
TOM JACK BAIRA: Yes, Kulkalgal, relation to Naghir through they intermarry. Naghir - Mills family getting married into Kulkalgal
381 Mr Baira was cross-examined by Ms Webb for the Commonwealth about Warral:
MS WEBB: Long time. Okay. That Warral - that place Warral: do you know a story for that place?
TOM JACK BAIRA: Yes, I know that my great grandfather, the one - the one who come from Mabuiag, he used to make garden on - behind a small island that nearly to Warral. They call it Sunsuit Island.
MS WEBB: Yes.
TOM JACK BAIRA: This is a long time.
MS WEBB: Yes. Okay.
TOM JACK BAIRA: He plant them coconuts, but the coconut was still there, today.
382 Ms Webb then asked Mr Baira about the Kaurareg story of Pithalai:
MS WEBB: Okay. Do you know a story about somebody called Pitalai, who came to Warral?
TOM JACK BAIRA: Pitalai.
MS WEBB: Pitalai.
TOM JACK BAIRA: Yes, I heard that story. I went to the Native Title meeting that Ngurapai against Badu.
MS WEBB: Yes.
TOM JACK BAIRA: They want to put their line from Crab Island to Dollar Reef.
MS WEBB: Right.
TOM JACK BAIRA: They said, “This is our area”.
MS WEBB: Yes.
TOM JACK BAIRA: So we end up in Native Title meeting and said, “No”.
MS WEBB: Yes.
TOM JACK BAIRA: “This is our part. We can claim that Prince of Wales because that had our name”. Warriors from Badu came to Prince of Wales before and pick Barbara Thompson up - - -
MS WEBB: Yes.
TOM JACK BAIRA: - - - bring her to Badu.
MS WEBB: Yes.
TOM JACK BAIRA: That name given by Badu Island people.
MS WEBB: Yes.
TOM JACK BAIRA: So they said no. There was stone - big stone on the other side of Warral. That Pitalai.
MS WEBB: That’s Pitalai.
TOM JACK BAIRA: Yes.
MS WEBB: Yes. Yes.
TOM JACK BAIRA: Because they be draw their line from Zuguin Reef, Crab Island, Booby Island, then West Island, straight front of Warral.
MS WEBB: Right.
TOM JACK BAIRA: Straight out.
MS WEBB: Yes.
TOM JACK BAIRA: They said, “This is our area”.
MS WEBB: That’s that Kaurareg people.
TOM JACK BAIRA: Yes. Then after they said - the other meeting we have, they said, “Here, this is our line here”, on Dollar - they said.
383 After confirming he understood Pithalai was a Kaurareg story, Mr Baira confirmed there was “no Badu story” for Warral, but that “people used to be - work - work that area for a garden”.
384 Again, this evidence is significant not so much for any tendency to prove the likely accuracy of Kaurareg assertions, but rather for what it says about Mr Baira’s knowledge of Kaurareg interests in relation to Warral and Ului, and Sunswit. It demonstrates that in his world view, including in his understanding from his elders about the pre-colonisation situation, the Kaurareg People were not rights holders in these islands, or the waters around them. Rather, in his world view, their assertions came after the NTA.
385 In summary then, Mr Baira’s evidence is supportive of the case put by the Badulgal respondents, and tends plainly against the shared ownership case put by the applicant. There are aspects of his evidence which support the positions advanced by the State, namely that the islands are shared between Badulgal and Mualgal, although I do not consider his evidence was entirely clear on this. Rather, he appeared to explain that he had been taught the islands belonged to Badulgal, but there was a need, a customary need, to share them with Mualgal because of inter-marriage and being one family. It is not clear whether he was describing more than permissive use. If his description is understood as more than permissive use, then that may support the State’s ultimate propositions on the separate questions.
386 Mrs Bosun had connections to Mer, and described herself as a Meriam Le through her father Daniel Passi and her paternal grandfather George Passi. One of the topics of her evidence in Akiba was the Gelam story, a story travelling from Mua to the central islands and onto Mer. Mrs Bosun described in her affidavit in Akiba how her father died when she was just a few days old, and her mother moved to Mua to live with her own mother, her aunt and her aunt’s husband, who was Wees Nawia. Her biological mother, Nazareth Passi, died when Mrs Bosun was about 12 years old. Traditionally, Mr and Mrs Nawia were her mother and father. Mrs Bosun agreed that Wees Nawia’s parents were Kaurareg. She described what she had heard from Wees Nawia about the forced removal of Kaurareg People from Kirriri to Poid:
LILLIAN BOSUN: Yes, they been move to Poid, yes. They been move - move from - the white man they move - move them out, yes, all of them, yes.
MS KEELY: The white man moved all of them out?
LILLIAN BOSUN: Yes, yes, move them from Hammond Island to Poid, Moa.
MS KEELY: Right
LILLIAN BOSUN: At the gunpoint, yes.
MS KEELY: At gunpoint. And did your father Wees Nawia tell you about that?
LILLIAN BOSUN: Yes, he - he told me he was 18 year old at the time, yes. The gun was point - pointing on - on his chest.
MS KEELY: The gun was pointed on his chest.
LILLIAN BOSUN: Yes.
387 Mrs Bosun agreed that Mrs Nawia, formerly Lizzie Savage, was Mualaig.
388 Mrs Bosun agreed that Wees Nawia was Chairman of first the Poid Council, then the Kubin Council, from 1935 to 1981.
389 Mrs Bosun herself married a Mualaig man, Oza Bosun. She gave evidence about the four clans on Mua, amongst other matters, and then she was asked about Warral:
MS KEELY: Keep going. Now, can I ask you a few things about fishing and these come from various places, your Honour, but I’ll indicate the paragraph numbers. You’ve said in paragraph 275(a), you’re talking about Warul and you say you go there school holidays camping and things. What sort of things do you - what do you go there for? Or when you’re there, what do you get there?
LILLIAN BOSUN: Yes, my - my mum and dad used to take me with the sailing dinghy all over. For the school holiday we live there. We go for fishing, turtle egg, and work outside the reef pick up all the clam shells, you know, trochus shell.
INTERPRETER: Clams, trochus shell.
LILLIAN BOSUN: Yes.
MS KEELY: Clam shells and trochus.
LILLIAN BOSUN: Yes.
MS KEELY: And what about the men, were they doing things there too?
LILLIAN BOSUN: Yes, they diving, you know.
MS KEELY: And what were they diving for?
LILLIAN BOSUN: Diving for the crayfish - crayfish and trochus, yes.
…
LILLIAN BOSUN: Well, you got certain time for go hunting, yes.
MS KEELY: At certain times they’d go hunting?
LILLIAN BOSUN: Certain time, yes.
MS KEELY: And what would they be hunting for?
LILLIAN BOSUN: Hunting for turtle and dugong.
…
LILLIAN BOSUN: I go with my father as a crew because we got no boys. All boys go out in the pearling - pearling divers and trochus work, got no – no one leave back home. Only all the girls here. I used to go out and my dad.
390 She was not at this point asked any questions about who Warral belonged to.
391 However, she was asked this question about Dollar Reef:
MS KEELY: Who owns that area, Dollar Reef?
LILLIAN BOSUN: Moa.
MS KEELY: And who told you that?
LILLIAN BOSUN: From my mum, our dad yes.
MS KEELY: From your mum and father, did you say?
LILLIAN BOSUN: Yes.
MS KEELY: Alright. And if other people, say other Torres Strait Islanders want to come fishing in Dollar Reef, what should they do?
LILLIAN BOSUN: Yes, they - yes, they can ask, you know.
MS KEELY: They can ask.
LILLIAN BOSUN: They ask for respect, you know.
MS KEELY: They ask - - -
LILLIAN BOSUN: Proper way of respect.
392 Mrs Bosun was then asked to work through all the islands surrounding Mua, beginning on the north side. It is unnecessary to relate that evidence in detail until her evidence about the south side. She confirmed that Naghir belonged to Mualgal “from long time, ancestor time”.
393 The examination-in-chief in this part initially consisted of little more than asking Mrs Bosun to name the islands concerned, including the second shared island determination islands and Warral and Ului, as well as Prakal Maza. Then there was this exchange:
MS KEELY: Did you? I missed that, sorry. And okay, so Ului, Warral, Prakal Maza, Mokanab, all those places you’ve talked about, who do they belong to?
LILLIAN BOSUN: All Moa.
MS KEELY: And who told you they belong to Moa?
LILLIAN BOSUN: My mum and dad and grandmother. But all - all of us we use that one, Mabuiag, Badu and Moa.
MS KEELY: Alright.
LILLIAN BOSUN: We share each other.
MS KEELY: You share it.
LILLIAN BOSUN: Yes.
MS KEELY: So Mabuiag and Badu use those places too?
LILLIAN BOSUN: Yes.
MS KEELY: Do they own them too? Who owns that place like Warral and Ului?
LILLIAN BOSUN: Warral and Ului, that’s Moa. Moa.
MS KEELY: That’s Moa.
LILLIAN BOSUN: Yes.
394 Mrs Bosun was then asked about Dollar Reef:
MS KEELY: And what about Dollar Reef?
LILLIAN BOSUN: That’s belongs to Moa.
MS KEELY: That belongs to Moa.
LILLIAN BOSUN: Because he was close to Moa or Kubin.
395 Mrs Bosun responded to sharing questions about Dollar Reef by saying she did not know if any part was shared. Asked then about the three reefs south of Warral, Mrs Bosun said they have Mualgal names and that her dad and Fr Manas told her they belonged to Mualgal, although in terms of use, Mrs Bosun said:
LILLIAN BOSUN: No, everybody. Everyone, yes. From Kaurareg, Badu, Moa, Mabuiag and for all island, yes.
396 The questioning then returned to the topic of Warral. Mrs Bosun gave the following evidence:
LILLIAN BOSUN: Yes. I always ask question. I ask - ask my dad, “You take - take me for camp there. That’s your place Hawkesbury Warral?” He answer, “No, that’s for holiday. This Warral here, he belongs to Moa.”
MS KEELY: Okay.
LILLIAN BOSUN: For Mualgal.
MS KEELY: Okay. So your father - - -
LILLIAN BOSUN: Uwa, so he - - -
MS KEELY: And just to remind the Judge, what was your father? Was he Mualgal? Where was he from?
LILLIAN BOSUN: He’s a Kaurareg, yes.
MS KEELY: He’s a Kaurareg.
LILLIAN BOSUN: Yes.
MS KEELY: And he said, “That’s not my place.”
LILLIAN BOSUN: Yes, “That’s not my place. That’s belong to Mua, Mualgal”.
(Emphasis added.)
397 This piece of evidence is clear about the exclusion of Kaurareg, so far as Mrs Bosun understood. This evidence is material, and tends against the applicant’s shared ownership case.
398 Mrs Bosun was then asked about Pithalai:
LILLIAN BOSUN: Pitalai, yes. His name was Pitalai. He been got a big fighting at Hammond Island. Badani, the one name - man named Badani, Badani been cut - cut the leg off - Hammond - from Waibin, one leg out. The same one that they got at Baidaumalbaba there. Cut his legs off. Pitalai, they run away from Hammond Island, go across for the Hawkesbury.
MS KEELY: Is that the other name - is that an English name for Warral?
LILLIAN BOSUN: Warral, he Hawkesbury, yes Warral.
MS KEELY: He went to Warral.
LILLIAN BOSUN: Uwa, went to Warral and dad told me, “Here’s the place he belongs to - belongs to Kaurareg. Pitalai no supposed to have been stand outside, he should stand up on the top of the hill.
MS KEELY: Okay.
LILLIAN BOSUN: Because he’s not – he’s not Kaurareg place that we - Pitalai been stand - stand outside and turn to rock.
MS KEELY: “He stand outside and turn to rock.”
LILLIAN BOSUN: Yes.
MS KEELY: And which way is Pitalai, that Pitalai rock facing?
LILLIAN BOSUN: Facing that way.
MS KEELY: Is he facing towards Warral or the other way?
LILLIAN BOSUN: Well, that way, front way.
MS KEELY: Away?
LILLIAN BOSUN: Yes.
MS KEELY: Alright. And that’s your father Wees Nawia - - -
LILLIAN BOSUN: Yes.
MS KEELY: - - - explained that to you when you were there?
LILLIAN BOSUN: Yes, daddy taught me, yes, yes, when - - -
MS KEELY: Alright. And is that why you understand - - -
LILLIAN BOSUN: Yes.
MS KEELY: - - - Warral is a Mualgal place?
LILLIAN BOSUN: Yes, from my question - I do question all the time, I get the answer.
399 The account above is consistent with the account given by Naton Nawia in the separate question proceeding: namely, that Pithalai stands outside Warral, in the sea, and is facing the Kaurareg home islands. Mrs Bosun was then asked about Ului:
MS KEELY: Right, yes. It’s a good way to get answers, yes. Now, just to
check again. So Ului, whose place is Ului?
LILLIAN BOSUN: Belongs to Moa what dad - dad been told me, yes.
MS KEELY: That dad.
LILLIAN BOSUN: Yes.
MS KEELY: And when you say “dad” you mean - - -
LILLIAN BOSUN: Yes.
MS KEELY: - - - Wees Nawia told you that; alright. If - - -
LILLIAN BOSUN: But we share together, Badu and Moa.
MS KEELY: Badu and Moa share.
LILLIAN BOSUN: Or even Mabuiag, more dinghies can go there.
400 I note Mrs Bosun did not volunteer the same ‘sharing’ qualification about Warral.
401 When then asked about whether Kaurareg People had interests, Mrs Bosun denied they did. She offered an explanation that after the Kaurareg were moved to Poid:
LILLIAN BOSUN: They don’t want to hurt them or say “no” now.
402 She went on to elaborate:
MS KEELY: Alright. And when that chief welcomed those Kaurareg people there and told them - got them houses and told them they could go fishing, do you think that was gud pasin from him?
LILLIAN BOSUN: Yes, that’s gud pasin, yes.
MS KEELY: Right.
LILLIAN BOSUN: Well, they been come - come in, even build up the hold houses for them, Badu and Kubin. Badu been help out. Badu and Moa, Badu been help Moa.
MS KEELY: Badu helped Moa - - -
LILLIAN BOSUN: Yes.
MS KEELY: - - - do that, did they?
LILLIAN BOSUN: Yes.
MS KEELY: So did they come across and help build the houses?
LILLIAN BOSUN: Yes, build up all them houses, yes.
MS KEELY: Alright. And those old Kaurareg people that were forced to move back in - before 1935 I think you said - are any of those Kaurareg people still alive?
LILLIAN BOSUN: No, everyone gone. No one left here.
MS KEELY: They’ve all passed away. So the Kaurareg people that were living on Mua, are they - have they all stayed there or what’s happened to them?
LILLIAN BOSUN: No, someone will pass away, only there be some – some Kaurareg people been moved back to Horn - Horn and pass away, yes.
MS KEELY: To Horn Island. And have there been marriages between Kaurareg and - - -
LILLIAN BOSUN: Yes, inter-marriage, yes.
MS KEELY: Inter-marriage too. So if Kaurareg people married a Mualgal person, what would their children be?
LILLIAN BOSUN: Yes, both Moa and Kaurareg.
MS KEELY: Mua and Kaurareg, alright. So does that mean those children can go fishing in Mualgal places, the same as other Mualgal people?
LILLIAN BOSUN: Yes, we are one.
403 While again there is a great deal of leading in this questioning, I am satisfied that nevertheless Mrs Bosun was giving reliable answers from her own memory.
404 In cross-examination by the State, Mrs Bosun agreed that Dollar Reef was a place where Badulgal, Mualgal and Mabuiag People had “equal rights”, and this was “from our ancestor time”, although she added “and the intermarriage”. The qualification again is important, because when pressed, she went on to say:
MR WATERS: And Badu people say they also own that area?
LILLIAN BOSUN: No, they won’t - that belongs to Moa, but we nearest island here.
MR WATERS: Because you’re the nearest?
LILLIAN BOSUN: Intermarriage, from long, long time.
MR WATERS: Okay.
LILLIAN BOSUN: We been use that Dollar Reef all the time.
MR WATERS: When you say, you just said it belongs to Moa, I think because we’re the nearest island, is that why you see it as belonging to Moa even though those three islands all use it?
LILLIAN BOSUN: Yes, we’re sharing, yes.
MR WATERS: You’re sharing?
LILLIAN BOSUN: Yes.
MR WATERS: Is there anything that people from Moa can do in that area that people from Badu say can’t do?
LILLIAN BOSUN: No.
MR WATERS: Okay, so that everything that a person from Moa can do at Dollar Reef, a person from Badu can also do?
LILLIAN BOSUN: Yes.
MR WATERS: Could people from Moa, if they wanted to, permit other people from a long way away to go to Dollar Reef and do things?
LILLIAN BOSUN: You want to talk Torres Strait, we all, the other Torres Strait Islander here.
MR WATERS: Can Kaurareg people also use that area sometimes?
LILLIAN BOSUN: Yes. Yes.
MR WATERS: And that’s okay?
LILLIAN BOSUN: Yes, that’s okay from long, long time, ancestor time, forefathers’ day, yes.
405 She gave what I consider to be an explanation for her evidence a little later:
LILLIAN BOSUN: Yes, because Moa people been accept Kaurareg people.
406 That is, I find, a reference back to her earlier evidence about how Mua helped Kaurareg when they were forcibly removed to Poid.
407 The material aspect of Mrs Bosun’s evidence is that the pattern of her evidence mirrors the pattern of the Mualgal witnesses in this proceeding, just as Mr Baira’s and Mr Nona’s did for Badulgal and Fr Manas’ did also for Mualgal. The witnesses claimed the islands as their own, but also admitted (generally) to some ‘sharing’. Usually there were terms or justifications around the ‘sharing’ which did not concede the position of primary ownership and, as I have explained, I consider some of the ‘sharing’ narrative is a post-colonisation, Christian influenced narrative, arising in large part from post-colonisation events. That is especially true of Mrs Bosun’s evidence about Kaurareg People. Some of it, as Finn J found in Akiba, also referred to gud pasin in a traditional conceptual way, as a pre-colonisation description of permissive use.
408 What is again consistent is that Mrs Bosun was clear in her denial that Kaurareg had any interests under traditional law and custom in Warral or Ului. Her evidence has some particular reliability because she was told that by Wees Nawia, her father, a Kaurareg man himself, who on her account expressly disclaimed any Kaurareg interest. That is important evidence, and consistent with evidence in the separate question proceeding.
409 Alick Tipoti is the only witness to have given evidence both in Akiba and to the Court in this proceeding. He is a Badulaig. His evidence was that the Torres Strait Islands he knows best are Mua, Badu, Saibai, Mer, Erub. When describing the Torres Strait Islands he did not refer to the Kaurareg islands.
410 Mr Tipoti was at the time of giving his evidence in Akiba still a relatively young man. He is an artist, and well travelled. His English is extremely fluent. He might be said to walk comfortably both in the world of the Torres Strait and the non-Indigenous world. These attributes were apparent in the way he gave his evidence to Finn J, and the way he gave his evidence in the current proceeding.
411 In examination-in-chief, Mr Tipoti was asked about his understanding of “law” in the traditional sense. He used gardens as an example:
ALICK TIPOTI: In my culture as a law an example would be a garden, we call apaw lag, it’s a garden, and a law in our language, which is the language Kala Lagaw Ya for Western Islands, would be wara mabaigaw boerdhar, other persons’ land; sewki mabaw maig, do not walk through there. That is regarded as a law in my community
MR BLOWES: And if that law is broken have you got an example in your own experience of the breaking of that law?
ALICK TIPOTI: Yes. I have once experienced that when I was round about 11, 12. Me and a bunch of my friends decided to pick some watermelons from an uncle’s garden without seeking permission. I think it was after a long day of hunting for pigs, on the way back to the village and we decided to pick some watermelons. Later it was discovered and we were identified as the people who took those watermelons, so my father called, my father was approached by his cousin brother and another elder of the community, of that part of that village on Badu, and they had a discussion and I was instructed by my father to apologise to the owner of that garden and I was, you might say I wasn’t allowed to go out fishing for about a week. I wasn’t allowed to use my spear for about a week. That was like a consequence that I had to undertake at the time.
412 Mr Tipoti described the relationship between Mua, Badu and Mabuiag in this way:
ALICK TIPOTI: It is always hard to point out different things between these three particular island, Moa, Badu and Mabuaig, because all the dancing and the singing, are the same. I can give an example of, there’s a slight, not a dialect, but the way you tune yourself when you talk. I can identify, oh, he’s from Mabuaig or he’s from Moa, or he’s from Badu. I can identify someone, if there was three different, three people from different islands spoke to me I can identify which is which.
MR BLOWES: Right. And Mabuaig, the relationship between Badu and Mabuaig?
ALICK TIPOTI: The relationship between Badu and Mabuaig is very close as well; it is simply for example my genealogies shows that my bloodline comes form Mabuaig.
MR BLOWES: And culturally?
ALICK TIPOTI: Culturally it is the same.
413 Mr Blowes asked Mr Tipoti about rights in land and sea:
ALICK TIPOTI: Land or, land in particular is inherited. As you can see there is more sea than land in the Torres Strait. I inherited land from my father; he inherited from his father before him, and so on and so forth. We have, when my father took me through the land, through my land he showed me the boundaries, the trees that have been planted probably by his grandfathers or before him, or before them, mango trees, coconut trees. So that’s how land, or even piles of rocks, that’s how our lands are marked.
MR BLOWES: And sticking with land for the moment, how, in your laws and customs is it proven that you own land? How do you prove that you own that land if you have to?
ALICK TIPOTI: Well, if the whole community came together and you would be asked to prove yourself, then the first thing you would say, you would name your father, his grandfather and his grandfather before him, and that will prove to anybody, everybody, that you are the rightful owner of that land, because they have occupied it way before you came out.
MR BLOWES: And if there was any dispute after that?
ALICK TIPOTI: Dispute about?
MR BLOWES: About who owned it, after you’d given your father’s name and so on.
ALICK TIPOTI: I have never experienced a dispute once I’ve proven that it is my land. The only dispute I have come across or I have seen would be a misunderstanding of, you know, a wrong tree was identified as the mark or the boundary and therefore the elders would get together, being the elders they’ve, you know, lived from the past, and they would discuss and talk about where is the true, the proper boundary, and it will be settled there and then.
MR BLOWES: So on Badu land that’s how things work?
ALICK TIPOTI: Yes. Yes.
MR BLOWES: And does that system go on to the beach or into the water at all around Badu or is it different when you get into the water.
ALICK TIPOTI: Well, I know that on Koteid or Kotinab and there are boundaries and I know the exact boundaries because I have been told by my father and my uncle. Koteid and Kotinab is on the north-east side of Badu, long beaches. On the sea we’ve never been told that that island, the sea around this island or the small island in sight is not ours, our fathers worked there, our forefathers worked there, so therefore to our understanding it is ours from the beginning.
MR BLOWES: And just coming - - -
HIS HONOUR: Could I just clarify that, when you say, what do you mean by “our”, are you talking about people from Badu or your own family?
ALICK TIPOTI: Yes, your Honour, Badualgal, people from Badu.
414 Mr Tipoti went on to give more evidence about boundaries on Badu Island itself between different clans or family groups, and later in his evidence in examination-in-chief he described what he meant by using the English term “territory”. He did so by reference to Tuin and Sarbi, two of the islands in the second shared islands determination:
ALICK TIPOTI: Territory, it’s not really like boundary, like a line; it’s just, from my experience and from what I’ve heard from my elders, that when we travel to all those surrounding smaller islands it is part of Badu that is our territory
Now when you look at maybe Tuin or - - -
MR BLOWES: Which is an island just to the south of Badu.
ALICK TIPOTI: Yes, south of Badu, next to Moa, and Sarbi, which is north of Moa, now those islands are shared. For example, Sarbi is shared by Moa, Badu and Mabuaig and Tuin is shared by Badu and Moa.
MR BLOWES: What do you mean by shared?
ALICK TIPOTI: Well, I have heard, I haven’t seen but I have heard elders of Moa used to garden there on Tuin. Now in terms of Badu I have experienced because I was a little boy when I went with my grandparents to Tuin when they gardened and I used to just swim all day while I wait.
MR BLOWES: And say with Tuin, is that, if you wanted to go to Tuin is that a place which you could go to or would there be protocols or people to ask.
ALICK TIPOTI: To my understanding I can, I can go there without seeking permission because most of the people on Badu know that my grandfather and his wife and my family used to garden there.
MR BLOWES: And what about people from Moa going there; do you know whether they need to, whether there are any protocols for them?
ALICK TIPOTI: I think it’s the same when they come from that side, depending on which family. I’m not sure which family used to come and garden there, but I heard that they did garden there.
MR BLOWES: And Sarbi?
ALICK TIPOTI: Sarbi? Yes. I know, yes, I know my uncle and his cousin brothers used to always go to Sarbi and they fish around there, they collect wangai or ubar that is the white plum.
MR BLOWES: And going back to Tuin now, so you say that’s a shared area; what about the beaches around Tuin, are they shared too or do they belong to someone?
ALICK TIPOTI: To my understanding it is shared.
MR BLOWES: And is there a reef around Tuin?
ALICK TIPOTI: There is, yes, there’s a little home reef, yes. I have dived there many times.
MR BLOWES: And where does that reef area fit in to whether it belongs to anyone?
ALICK TIPOTI: To us it’s the same as the land, but both from Moa and Badu share that, the reef.
MR BLOWES: And the waters between Tuin back towards Badu?
ALICK TIPOTI: Yes, to us it belong to us, because we travel through the waters, on the waters.
MR BLOWES: And what about the waters back towards Moa from Tuin?
ALICK TIPOTI: Yes, they travel on that particular water to get to Tuin, yes.
MR BLOWES: And who, in your laws and customs who, does that water between Tuin and Moa belong to anyone? Or is that shared or is that little bit of - - -
ALICK TIPOTI: It was shared because we, when we go from Badu to Kubin Village we go through that passage which is shared by all, yes, by us, the Moa and the Badualgal.
415 Again, it is important to recall that this evidence is being given after the second shared islands determination. I infer that Mr Tipoti was aware of that determination.
416 Mr Tipoti also explained how traditional ownership encompasses not only islands but the sea and all the marine resources. This may be the kind of evidence which led to Finn J’s finding that Islanders do not distinguish between land and sea:
MR BLOWES: So is it just the islands themselves that have, that are part of Badu area?
ALICK TIPOTI: The sea country as well, yes, the sea area as well.
MR BLOWES: When you say sea country or sea area, what do you include in that? For example, does that include beaches?
ALICK TIPOTI: Yes, the beaches, everything that’s in it to my understanding it belongs to us because we have fished there for many years, we have occupied it for many years.
MR BLOWES: What about living things that are swimming in the sea like dugong, when they’re in that area?
ALICK TIPOTI: Yes, they all come as under belonging to Badualgal.
MR BLOWES: So if there’s a dugong swimming in what you regard as Badu area - - -
ALICK TIPOTI: Yes.
MR BLOWES: - - - who does it belong to when it’s in the water?
ALICK TIPOTI: It belongs to Badualgal because it is in our area.
MR BLOWES: And if somebody gets it, for example, if it’s you that gets one, whose is it then?
ALICK TIPOTI: It still belongs to, oh, it belongs to me as a Badulaig, yes.
…
MR BLOWES: Right. What about the deep waters? Is that any different? The deep waters inside Badu area?
ALICK TIPOTI: Inside Badu areas, yes, no, that is no difference. The waterways between the, the Badu the island itself and those surrounding islands, the deep and shallow waters, to my knowledge it belongs to people of Badu.
417 A little later, Mr Blowes turned to the topic of Warral. This was Mr Tipoti’s evidence:
ALICK TIPOTI: Waral is that island south on Map 1. I always used to go there with my father fishing around there, turtle hunting, and when I was taught to hunt by myself I would go there, and I know, and I’ve heard from the elders that there is a Badu man buried on that island. I think he lived there. His name is Athe Warukaz, Athe is A-t-h-e W-a-r-u-k-a-z, and that term is our language for a young turtle, or small turtle.
MR BLOWES: And did your father ever tell you anything about whether Waral is in somebody’s area or belonged to somebody?
ALICK TIPOTI: No, in my understanding that is part of Badu and Moa.
MR BLOWES: And what’s your, how did you reach that understanding? In other words, who told you, how you learnt that?
ALICK TIPOTI: I’ve heard it many times not only from my father and stories you hear about people from Badu and Mua going fish around there.
MR BLOWES: Have you visited that area with your father, that place?
ALICK TIPOTI: Yes.
MR BLOWES: And along the way, when you travelled with your father, how was it? Were you just sitting - - -
ALICK TIPOTI: Yes.
MR BLOWES: - - - not speaking in the boat or - - -
ALICK TIPOTI: Oh no. There was always, that’s how I became to understand the name Koey Maza, which is Dollar Reef, (Parak) which is just a strip north, east of Waral on the bottom right of the map, Mokanab, those little islands. That’s how I knew all the islands because I’ve heard it over and over from uncles and my father.
418 This evidence was clear, and like his earlier evidence, located squarely by Mr Tipoti in what he had learned from his elders. It was, I find, his understanding of the ownership under traditional law and custom of Warral. Unlike some of the previous Akiba witnesses, he volunteered immediately that it belonged to both groups, without any leading questions or prompting.
419 He was then asked by Mr Blowes to undertake what Mr Blowes recognised was probably not a very “traditional” exercise, by drawing a line on a map exhibited to his affidavit, about the extent of Badulgal country, whether land or sea. This is what Mr Tipoti described:
ALICK TIPOTI: Yes. If I was to put a line around which area considered to be part of Moa or Badu, and Badu it would cover all the three reefs to the south on the bottom of the map, Giai Maza, Dadatiam and Zuguin Maza, and including Mokanab which is that little island just up a bit; there’s Poerakal Maza, Murbayl; I’ve learnt all those names for many, I’ve heard it so many times that we know it’s, because it’s part of our language.
MR BLOWES: And when you refer to those three reefs including Giai Maza and Zuguin Maza, did you refer to them by reference to both Badu and Moa? Are they shared or are they regarded as - - -
ALICK TIPOTI: No, they are shared, they are shared. From Koey Maza, Giai Maza and - the terms we use today are marked as well, they’re No.1, No.2, No.3, and Dollar Reef, all those three reefs are shared by Mualgal, Badualgal.
MR BLOWES: And is there any idea of an area to the south of Badu which just belongs to Badu, in the sense that it’s not shared in that way?
ALICK TIPOTI: Yes. No, not that - sorry, come again, can you rephrase that question.
MR BLOWES: Perhaps if you could look at Map 1 or Map 2, whichever you prefer. You mentioned at least that those three reefs were shared by Badu and Moa; is there an area on either of those maps which you would identify from what you know as only belonging to Badu?
ALICK TIPOTI: To Badualgal.
MR BLOWES: Not shared with Moa.
ALICK TIPOTI: To the south of Badu I think the islands maybe to the, the islands to the west, all I know is the small islands close to Badu and Moa are shared; Waral is shared and so geographically speaking the ones that are close to both islands are shared, whereas the ones that are close to Badu are mainly occupied by Badualgal. And therefore it would be classed as owned by Badualgal.
MR BLOWES: Where would you put Ului into that?
ALICK TIPOTI: Ului would come under, probably shared, from a birds eye view. It’s different when you’re looking from a dinghy.
MR BLOWES: In what way is it different? When you look at it from a dinghy is it shared or not shared?
ALICK TIPOTI: It is like, it would be, you could see Badu, you could see Moa, so yes, I suppose it would be shared.
MR BLOWES: Are there any - no, I’ll come to that later. When you, do you remember when you lived on Horn Island being told something by your father about those No.1, No.2, No.3 reefs?
ALICK TIPOTI: Yes. When I lived on Horn Island I would still go out to the three reefs, No.1, No.2, and No.3 and hunt, and every time I caught a turtle or even a dugong on those reefs and I would tell my father what I caught and he would acknowledge yes, you can do that, you are allowed; he always used to say to me that yes, you can, you can do that because it is part of Badu. He always, I remember those words, and just what makes me say that those reefs belongs to us.
420 At least three matters of real significance emerge from this evidence. First, again Mr Tipoti clearly volunteers the shared nature of the ownership of the land and sea he is describing, and he re-affirms – without prompting – the shared ownership of Warral. Second, Mr Tipoti appeared far less certain about Ului, but included it as shared. He makes no reference to Kaurareg People as sharing in the ownership of either island. Third, even in relation to the three reefs south of Warral, there is no reference by Mr Tipoti to Kaurareg People. By this stage the Kaurareg #1 claim was filed. Mr Tipoti is, as I have said, at this stage a younger man, more well-versed in non-Indigenous matters than some of the other witnesses. I infer he was likely to be aware of the Kaurareg #1 claim when he gave this evidence.
421 Mr Tipoti was then asked about the area to the north and east of Badu, and it is not necessary to set out that evidence. He was asked more about Koey Maza, or Dollar Reef. One aspect of his evidence about Koey Maza that I consider important is who he identified as the source of his knowledge about it:
ALICK TIPOTI: Yes, that area belongs to Mabiagulgal, it is occupied by Mabiagulgal, but it is shared between Moa, Badu and Mabuaig, Saibai, Boigu, Dauan.
MR BLOWES: And what about Buru itself?
ALICK TIPOTI: Buru is a shared island. I’ve never set foot on Buru, but I went past it many times and it is to my understanding, I’ve been told that it is shared between those islands.
MR BLOWES: Alright. Now, what’s your understanding based on, in terms of who told you?
ALICK TIPOTI: My father told me that. My uncle told me that?
MR BLOWES: Which uncle?
ALICK TIPOTI: Uncle, on my - Uncle Ronnie Nomoa, he’s a fisherman, he used to tell me stories about diving along that island, the island and along the reefs from Numar Beka and Koey Maza.
MR BLOWES: And Koey Maza?
ALICK TIPOTI: Koey Maza, yes, all of those.
MR BLOWES: By all of those you mean all of the same people, all of the same reefs.
ALICK TIPOTI: Oh. Uncle Ronnie told me many stories of his time when, for example, they found a dugong on Beka and they chased it; he would tell me stories like that and he would describe that how maybe they’d chase the dugong, they’d come across a herd of dugong on Beka and then come across another herd on Koey Maza and stories like that.
MR BLOWES: And did that, those stories include, or what those people said, did that include any information about whether it belonged to anyone, the Koey Maza area?
ALICK TIPOTI: Yes. See, Uncle Ronnie, his last name is Nomoa, and that’s how we connected back to Mabuaig and he always say those reefs are occupied or, by all of us, but belong to Mabiagulgal.
422 Ronnie Nomoa is of course one of the Badulgal respondents. In Akiba, it is clear Mr Tipoti volunteered him to the Court as a person from whom Mr Tipoti had acquired significant traditional knowledge.
423 At the end of his evidence in examination-in-chief, Mr Tipoti was asked about his understanding of Kaurareg access to the islands and waters he had been describing:
MR BLOWES: Just two - one last question now - paragraph 278, your Honour. You’ve talked about other people I think whom you’ve included in - as being from communities in the Torres Strait Islands. What about somebody using Badu sea area, as you’ve described that, and that person is a Kaurareg person, what would be the laws and customs that would apply in that context?
ALICK TIPOTI: They would come to Badu and seek permission to use the waters around Badu because they do know that the water surrounding Badu belongs to Badulgal.
MR BLOWES: And who told you that or who did you learn that from?
ALICK TIPOTI: I - that is - that is - everybody knows that. I know because I’ve heard it from so many people. My father told me that, and the Kaurareg people talk about that.
MR BLOWES: And is that something just in - that your father’s told you for your generation or do you understand that - - -
ALICK TIPOTI: No, it’s been handed down from his father and his grandfather - generations before him.
424 In his answers in cross-examination, Mr Tipoti remained clear on this point:
MR WATERS: - - - let me know and I’ll make sure that we understand. Just in relation to that last matter you were asked about, the Kaurareg people.
ALICK TIPOTI: Yes.
MR WATERS: Do they have rights in relation to those three reefs?
ALICK TIPOTI: To the best of my knowledge, my father told me “no”.
425 This evidence, combined with the absence of any evidence from Mr Tipoti to this point about Kaurareg interests, is important. It illustrates that when Mr Tipoti gave his evidence in Akiba, and spoke at length about his clear understanding of rights and interests in islands and sea under traditional law and custom, he plainly understood that Kaurareg People sat outside those rights and interests, and he emphasised this as being a traditional understanding.
426 In cross-examination, Mr Tipoti made a point about the use of Badu language for naming many of the islands and reefs, and how this was relevant to ownership:
ALICK TIPOTI: Well, to my understanding the islands named on the map belong to Badu because is - it is part of our language. Yes, you are right when you say that the name wouldn’t say that it doesn’t belong to Mua and it belongs to Badu, but Badulgal speak the language fluently. Now, only elders to this day speak the language. Young people on Mua they know the language but the Badulgal, my generation, I speak very fluently because I’ve spent so many times with elders, and to my understanding these islands belong to Badulgal.
MR WATERS: But just to perhaps go into that a little bit more. I’m not suggesting that because the language is the same for both islands that the island must be owned by both, but what I’m just wanting to say is that the name alone, if you don’t know other things, doesn’t necessarily tell you which of those two islands, or both of them, are the right people for that island?
ALICK TIPOTI: Yes, it doesn’t.
427 My understanding of this evidence is that Mr Tipoti remains of the view that the fact the islands have Badu language names, and Badulgal still speak Kala Lagaw Ya more so than Mualgal, is relevant to ownership but not decisive.
428 Amongst other matters, Ms Webb asked Mr Tipoti about who he identified as the Badulgal elders he had learned from. Mr Tipoti listed the following people: Aidan Laza, Walter Nona, his father Lenaiso Tipoti, his grandfather and his grandfather’s brother, and finished by saying “[t]here’s many, yes, there’s heaps”. Mr Tipoti described three elders in these terms:
ALICK TIPOTI: They might do both but - and vice versa for the elders on the - on the garden - the elders of the garden.
MS WEBB: Okay. Okay. So for Badu, who would you have recognised as the elders for the sea?
ALICK TIPOTI: Elders for the sea, Aka Aidan Laza. He was a gardener and a hunter.
MS WEBB: Right.
ALICK TIPOTI: Yes.
ALICK TIPOTI: Uncle Ronnie Nomoa, he is of the sea.
MS WEBB: Yes.
ALICK TIPOTI: My father, he is of the sea and the garden, and many more.
429 As I understand, Mrs Luffman was from Mabuiag.
430 Mrs Luffman was asked about the three reefs south of Warral. This was her evidence:
MR KEELY: Do you know reefs called Number 1 Reef, Number 2 Reef and Number 3 Reef?
SOPHIE LUFFMAN: Yes
MR KEELY: Do they have language names?
SOPHIE LUFFMAN: Yes, I believe they do.
MR KEELY: Are you able to say what they are?
SOPHIE LUFFMAN: I’m not really familiar with those names, but I refer to them always as 1, 2 and 3.
MR KEELY: Okay. If you don’t know the answer to this, you just tell us, alright? But under your way of seeing things - I withdraw that. In your belief under your law and custom, do they belong to anyone?
SOPHIE LUFFMAN: Well, I believe they belong to Moa and Badu.
MR KEELY: What can you say about - in general terms what can you say about any relationship between Kubin people and Kaurareg people?
SOPHIE LUFFMAN: Oh, it’s more like they are more connected closely because some of the families who are living at Kaurareg, they belong to Kubin people.
MR KEELY: As - - -
SOPHIE LUFFMAN: The majority.
431 Mrs Luffman identified as neither Badulaig nor Mualaig. So her evidence was evidence from outside those groups about an area recognised by her as owned by those groups. Her evidence about the relationship between Mualgal and Kaurareg People is again recognition of the post-colonisation bonds forged because of the Kaurareg forced removals.
Conclusion regarding the Akiba evidence
432 I reiterate that no witness volunteered that Warral and Ului were islands that belonged to all three groups. Several witnesses expressly denied Kaurareg interests in Warral and Ului when questioned about it. All recognised that, as a matter of gud pasin, Kaurareg People might use the islands, as other Torres Strait Islanders might do. Some witnesses were prepared to place Kaurareg People in what appears to be a different category from other non-owners of Warral and Ului, because of their close relationships to Mualgal. I consider the evidence, considered holistically, paints a picture of this special category for the Kaurareg People being a post-colonisation phenomenon. The evidence from some of the relevant Akiba witnesses about wider ‘sharing’ of uninhabited islands such as Warral and Ului and their marine resources suggests gud pasin or permissive use, not ownership.
433 Several witnesses expressly denied, or refuted, Kaurareg interests in the three reefs south of Warral. This proceeding is not concerned with native title rights and interests in those reefs. Nevertheless, I consider this evidence of some weight in resolving the separate questions, because these areas are south of Warral, in between the Kaurareg home islands and Warral and Ului. On the evidence in the present proceeding, those reefs are used and travelled over by Kaurareg People. Yet in Akiba, almost every relevant witness said they belonged either to Mualgal and Badulgal, or one of those groups, although Kaurareg People could use them. Only Fr Manas suggested the Kaurareg People might also own them. If that was the understanding of the Akiba witnesses, at the time of the evidence in Akiba and well before the claims over Warral and Ului became seriously agitated and contested, then there is a consistency with their evidence about Warral and Ului themselves. In other words, the Waubin story was not seen by non-Kaurareg People as giving Kaurareg People rights and interests in those reefs, let alone in Warral and certainly not in Ului. The Akiba witness evidence about Ului tended much more strongly to favour the case of the Badulgal respondents as put in this proceeding. There was scant evidence about Mualgal interests, although there was some which appeared to me to stem more from a tendency to reason from ownership of Warral, and/or the ability to see Ului from Mua, to an inevitable situation about Ului.
434 There was, as I have demonstrated, some answers in cross-examination, or answers to leading questions, which disclose internally inconsistent positions by one witness about not only these islands but some of the surrounding reefs. I have made findings about what parts of each Akiba witness’ evidence I consider reliable.
435 On any view, the Akiba evidence weighs heavily against the applicant’s shared ownership case. That was the submission of the State and I accept it.
436 Counsel for the State also submitted that the timing of each Akiba witness’ evidence needed to be understood:
But in particular, the State would note that it is particularly relevant that some of those witnesses, Walter Nona and Lillian Bosun, in particular, gave evidence at a time when Kaurareg were represented and active contradictors to the case. In that same vein, it is particularly relevant that Walter Nona was cross- examined by Kaurareg counsel and that Lillian Bosun wasn’t. And the inference is – can only be that was a choice that Kaurareg counsel made. Similarly, it is relevant that other witnesses, such as Alick Tipoti were – gave evidence after the division of the claim, so at a time when Kaurareg were no longer active parties to the proceeding.
437 I also accept that submission. In any event, I do not consider the cross-examination by counsel for Kaurareg, or indeed the cross-examination of any of the Akiba witnesses by other counsel, materially impugned their evidence in examination-in-chief, or cause it to be objectively less reliable.
438 The Akiba witnesses were, I infer, carefully chosen. Most were very senior and knowledgeable Badulgal and Mualgal individuals. While Alick Tipoti was a younger man, he was obviously knowledgeable and articulate, and perhaps had learned proportionately more about traditional law and custom than many people his own age because of his artistic work.
439 Finn J did not make any adverse findings or observations about the evidence of any of the witnesses I have outlined above, in terms of the evidence they gave that is relevant to this proceeding. To the contrary, in relation to Walter Nona, Finn J found that his evidence was especially reliable because of his seniority: see for example at [612], [654] and [672].
440 The evidence given in Akiba, well before this dispute arose but at a time when there were claims over Warral and Ului by the Badulgal and Kaurareg People, is in my opinion probative of the position that the three groups have not, under their traditional law and custom, mutually acknowledged and accepted the shared ownership of Warral and Ului. The Akiba evidence is particularly persuasive as it was given in the context of a different dispute, away from the heat and controversy of the present one.
MATTERS THE COURT NEED NOT DECIDE
441 There are a number of matters which all featured in the evidence and argument to some extent, about which I make no concluded findings. For some matters, that is because of the other material conclusions I have reached. For others, it is because I have accepted a submission that they do not need to be decided in order to answer the separate questions.
442 Sunswit is the small island (or islands) which lies just to the north west of Warral, outside the claim area: see attachment 1. Some witnesses gave evidence that at low tide it is possible to walk from Warral to Sunswit:
MR BLOWES: […] Now, can you tell the Court something about Sunsuit. What is Sunsuit?
THOMAS SAVAGE: It’s - it’s a rocky outcrop out from Warral with a bit of sand beach on it. Sand beach, rocky - like a rocky island just off Warral.
MR BLOWES: Is it connected to Warral? Can you walk there low tide for example or is it separate, do you know?
THOMAS SAVAGE: You can - you could swim out there, like walk out at low tide, yeah.
443 The Court took evidence on Sunswit during the trial: that was by the election of both the applicant and the Badulgal respondents.
444 There is no claim under s 61 of the NTA over Sunswit above the high water mark. The sea around Sunswit, that is below the high water mark, is part of the Part B Sea Claim and remains undetermined. It is also subject to the Kaurareg #1 claim.
445 The omission of Sunswit from any native title claim is, as far as the evidence demonstrates, a conscious choice by the claimants within, at least, the three groups participating in this proceeding. I do not rule out that other groups might wish to be heard. Indeed, senior counsel for the Badulgal respondents hinted at this in closing oral submissions:
MR McAVOY: The difficulty however your Honour, may be that other parties who were not notified raise their head, and so that may have an effect in terms of being able to successfully reach a determination on the matter.
446 The Badulgal respondents’ initial position was that findings could be made about native title in Sunswit, in particular because whoever has native title in Warral must, on their contentions, be found to have native title in Sunswit. However, after some reflection, Mr McAvoy informed the Court that:
Your Honour will see that the concluding remarks at paragraph 118 of the Badulgal respondents’ submissions, we don’t press that submission in relation to Sunswit your Honour. So that submissions is additionally – your Honour could make findings as to the ownership of Sunswit noting that the owners of Sunswit will in Badulgal respondents’ submission also be the owners of Warral but not necessarily Ului.
HER HONOUR: So you say that is not pressed?
MR McAVOY: Not pressed, your Honour. As desirable as it would be your Honour, to have the issue of Sunswit resolved in terms of factual findings through this process given all of the evidence that’s been heard at Sunswit and as touched upon it, the procedural requirements of the Native Title Act we think limit your Honour to the findings in relation to the claim area itself.
447 After this submission, because Sunswit featured relatively heavily in the evidence, and since the Court took evidence on the island, I considered it was appropriate to invite the parties to try to reach agreement about what approach the Court should take in its findings about Sunswit.
448 It appeared no agreement was reached, or at least no agreement was communicated to the Court.
449 The State made the following submission:
… the State’s view is that whilst your Honour would not be, and has indicated that you won’t be making a determination over Sunswit, the State has certainly understood that the evidence about Sunswit was intended to be probative about Warral, and indeed the State says that is and should be probative about Warral, and your Honour shouldn’t be precluded from making any findings of fact that are necessary for your Honour to reach conclusions in this case.
450 The Badulgal respondents ultimately took a similar position to the State. In reply, the applicant submitted:
Your Honour, after that, Sunswit and what should be done about it, well the applicant would say that your Honour could do everything but make a determination. Your Honour can have regard to the evidence, you can make findings of fact, draw inferences in relation to the claim area and whatever, but just not make a determination of Native Title because there’s no jurisdiction.
451 The Commonwealth made no submission.
452 I accept the express position put by the applicant, the State and ultimately the Badulgal respondents. Sunswit was relied on in the lay evidence at various points, and the Court took evidence on the island at some parties’ invitation. The arguments of the Badulgal respondents in closing submissions made frequent reference to evidence about ancestral occupation of Sunswit as part of their case, contending that evidence about who occupied Sunswit could ground inferences about who occupied Warral and, in both cases, who had native title in those islands.
453 Given their geographical proximity and connection, and given the content of the lay evidence about how Sunswit and Warral are conceived by the groups who use them as connected, evidence about Sunswit is plainly capable of being probative about who has native title in Warral. Less so in the case of Ului in my opinion, but the Sunswit evidence may still be relevant. As the shared islands determination demonstrates, at least on the applicant’s case, geographic proximity of islands to one another may not tell the complete story about who has rights and interests under traditional law and custom.
454 Therefore, given there is no claim under the NTA over Sunswit, I accept the Court needs to be cautious, and restrict itself to considering evidence about Sunswit in terms of its probative value for who has native title in Warral and Ului. That is the approach I have taken.
“Society” and native title in this proceeding
455 The term “society” is not found in the NTA. For native title, it is a concept originating in the reasons for judgment in Yorta Yorta. Finn J made the same point in Akiba at [162]. It is revealing that many judges in this Court, working at trial and appellate level in native title, are not enthusiastic about the concept in their published reasons. The concept tends to distract from the questions asked by the NTA. The distraction is very much evident in the expert evidence in this case.
456 The dominance and utility of this concept in native title law might well be open to question. With respect, as Finn J also noted, an understanding of it is best expressed by reference to the Full Court’s decision in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 at [78]. It is:
… a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes.
457 As the State noted in its submissions, a finding of ‘one society’ does not inevitably lead to a conclusion that a group holds native title in an undifferentiated and single way across the whole of a particular area of land and waters. That was the point made by Finn J at [164]:
What is to be noted in this is that, while it is the society whose laws and customs are to be acknowledged and observed, that society as such may not hold communal native title rights and interests under those laws: see Alyawarr FC at [79]-[80]; Bodney FC at [149]-[153]. All depends on the body of normative rules of the society which gives rise to native title rights and interests: De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose (No 2)) at [31].
458 Indeed, Finn J’s conclusions in Akiba demonstrate his Honour found that native title was held in the sea at the island community level, despite the normative system which gave rise to that title being a single system across the Torres Strait: see, for example, at [638] and [641].
459 As I explained at the start of these reasons, there are still several active native title claims by the Kaurareg People which remain undetermined, including land and sea claims. There is also the recent consent determination in David, which recognised native title held by the Kaurareg People in parts of the Arafura Sea, the Torres Strait and the Endeavour Strait.
460 In David, I made it clear that despite all of the Kaurareg affidavit deponents in David also being witnesses in this proceeding, the Court made no findings of fact about Kaurareg native title beyond the very limited ones necessary to decide if a consent determination in the form proposed was within the power of the Court and appropriate: see David at [15] and [90].
461 As the State submitted, on the applicant’s case as initially presented, the shared ownership claim depended on this Court making a finding of the kind made by Finn J in Akiba – namely, that the three groups held native title jointly in Warral and Ului. That does involve, as a necessary premise, that the same normative system of law and custom as that identified by Finn J in Akiba for Badulgal and Mualgal is the source of Kaurareg native title in Warral and Ului. In other words, conceptually, the three groups are part of the ‘one society’.
462 In its amended concise statement at [9], the applicant framed its case in this way:
At all times since sovereignty, the Badulgal, Mualgal and Kaurareg Peoples have been members of that same society and have continued without substantial interruption to acknowledge and observe the laws and customs of that society, and the claimants continue to do so today. Accordingly, the laws and customs acknowledged and observed by the claimants are “traditional”. While those traditional laws and customs are the laws and customs of one society, there are some minor variations in their emphasis and application across the society.
463 As the State submitted, the applicant’s opening supported this contention, but by closing addresses, the position was put differently. The State relies on the following closing submissions by Mr Blowes:
It’s group Native Title. In our respectful submission, it would be similar in terms to the determination made by his Honour Finn J.
…
The group rights would be held by the three groups, thereby indicating that they were overlapping rather than somehow amalgamating people and rights within the claim area. The evidence just doesn’t support an amalgamation of groups and a single right, your Honour. The evidence clearly is that people regard the territory as subject to their rights.
464 I agree that by closing final submissions, the applicant’s case was not being put as simply as it was put in the amended concise statement. I find that is because of the content of the lay evidence.
465 In closing oral reply submissions, there was the following exchange between me and Mr Blowes:
MR BLOWES: Your Honour, moving on to another matter, a more general matter initially. Your Honour noted, I think it might’ve been yesterday – made reference to a word that doesn’t appear in the Native Title Act, one that we’re all familiar with, the word “society”. And, your Honour, it’s perhaps unfortunate that that word – it’s part of the jurisprudence now and it’s – and in Yorta Yorta, though, the original intent of it was simply to identify – was simply to provide a device to ensure a reasoning process whereby it could be made clear that rights and interests were possessed under traditional laws and customs. In other words, that a normative system needed to be identified such as could provide a basis for the possession of rights and interests.
HER HONOUR: And had continued, that being the issue in Yorta Yorta.
MR BLOWES: Questioned in Drury, your Honour, as to whether it’s been extended in any way to become perhaps more complicated than it already has, but that’s not a matter for here. But I would say that in this case the word has been – is being used to try and unlink Kaurareg – from Mualgal, for example –notwithstanding the close connection there and, admittedly, a common body of laws and customs subject to the question about – the distinction which your Honour needs to grapple with about one aspect of one law and custom.
HER HONOUR: On the other parties’ submissions, the one that’s central to rights and land and waters, though.
MR BLOWES: Yes, your Honour, but the question – to broaden the question to make that determinative of a question about whether there’s one society or two, we say, goes far. There can be that distinction without – and it can be - - -
HER HONOUR: Well, I’m not sure, Mr Blowes, in fairness, that other counsel have urged a broad finding on the Court about that and Kaurareg. And you will’ve heard me say already that, as far as I can see, the question for the Court – and it is important to remember that all the court is doing in this case is answering separate questions. And, in order to answer those separate questions, the court does have to make findings about the basis for Kaurareg rights and interests in these two islands.
And it might be that the Court doesn’t need to go much further than that. The Court’s been addressed more broadly than that but I’m not sure that anyone is urging the Court to make some kind of – if I can put it this way – big picture statement about how Kaurareg people fit into this region. And I would need a lot of persuasion that I need to do that.
MR BLOWES: Well, we’re comforted by that, your Honour.
466 After reflecting on the matter, I remain of this view. However, it is clear that the State and the Badulgal respondents do urge a ‘big picture statement’ so to speak on the Court. And it is also clear that the applicant’s ‘ancestral occupation’ case requires the Court to make findings whether the Waubin narrative can or cannot be accommodated within the concept of ancestral occupation as that concept is explained in Akiba.
467 Counsel for the State submitted:
The reference to mythology as being either a differing basis or perhaps just a difference in detail is the factual question that your Honour is going to have to determine. And your Honour will note that that’s precisely how Ms Kidson opened. And I should note that, if the applicant, as seems to be suggested in the reply submissions that, in the absence of any express CF by the State that we should be regarded as otherwise agreeing, that’s simply not the case. But to frame the society question in this case, it’s useful to go back to Akiba, and specifically at paragraph 260.
And this forms part of his Honour’s findings about the society, but I’d emphasise the final two sentences where his Honour says:
Moreover I accept the evidence of the applicant’s anthropologist that all of the islanders’ laws relating to tenure derive inter alia from the emplacement principle.
So that’s an important aspect of Akiba when it’s being compared to this case, because nobody in Akiba, not Finn J, not Professor Beckett, or Dr Murphy or any of the anthropologists, were dealing with circumstances where one of the groups was putting forward a basis of tenure that was fundamentally different.
And we would say, ultimately, the question is in this case, is Kaurareg’s originating basis under their traditional laws and customs – firstly, what is it, because that hasn’t been determined and your Honour will need to determine it.
HER HONOUR: For these islands.
MR McKECHNIE: For these islands. And, secondly, is it of such a difference that it would be destructive of that contention that they are part of the same society as Badulgal and Mualgal. And that issue has loomed large over this proceeding. And the State says that, in going into the detail of addressing the content of laws and customs that give rise to rights in land, that is not turning the Yorta Yorta requirement on its head; that is doing precisely what the Yorta Yorta requirement requires, which is to identify what the laws and customs are and then determine whether or not the groups are united by or in those traditional laws and customs that give rise to rights in land.
… the State’s submission is, if your Honour finds that there is a difference, if your Honour finds, as the State says that your Honour should, based on the evidence, that the originating basis for Kaurareg having rights in land is based in the Waubin myth, then that is such a significant difference that it is destructive of a one society case. And no amount of canoe similarity or trade or cultural interaction can save that, because it’s just so fundamentally different.
468 Mr McAvoy for the Badulgal respondents in oral reply submissions indicated his clients’ agreement with the position put by the State.
469 Senior counsel for the Commonwealth supported the same approach to the evidence, without urging any specific conclusion on the Court:
So while it might be the applicant’s case that the Waubin myth is emically understood as a form of ancestral occupation so as to equate the basis for Kaurareg connection to land and waters with that of the Badulgal and Mualgal, we would say that’s not the effect of the evidence before your Honour. Now, other counsel have addressed your Honour on that evidence as to the role of mythology and Waubin as the Creator of Kaurareg country. I won’t add to that.
What I would say is that a different basis for connection with land and waters undermines a common connection to land and waters under traditional laws and customs which provides the basis for Native Title. If Kaurareg have a different basis for connection to land and waters from the Badulgal and the Mualgal – that is, there is no common connection under the laws and customs acknowledged and observed – then we would say the three groups cannot hold one Native Title, as was explained in Drury.
470 If I had been persuaded that, first, it is more likely than not that the Kaurareg People had rights and interests in Warral and Ului (or one of them) under traditional law and custom, then I accept it may have been necessary to at least go some way towards a broader finding about whether the normative system under which those rights and interests arise was the same normative system as that shared by Badulgal and Mualgal, as explained in Akiba.
471 Since I am not persuaded of the first contention, it is not necessary for the Court to go further than identify what I consider the evidence demonstrates is the basis alleged for the putative rights and interests of Kaurareg People in Warral and Ului and make findings about what the applicant has or has not proved by that evidence.
472 This case was by no means a full and exhaustive inquiry into the normative system that underpins Kaurareg rights and interests in land (or waters). In my opinion, since there remain many undetermined claims by the Kaurareg People, some overlapping with other claims, the Court should not go further than it has to in order to answer the separate questions.
Can there be exclusive possession where there are two overlapping native titles
473 This issue is not expressly part of the separate questions, but might be seen to be a component of question (b)(ii). It arises because of the final submissions made on behalf of the State. The reasoning of the State commences with the following proposition in its closing written submissions:
The State submits that a striking feature of the lay evidence in this matter is that the witnesses, almost exclusively, gave evidence that Warral and Ului were owned in a traditional sense by their group and not owned by the other groups.
474 This feature included, on the State’s submissions, the evidence of the Badulgal and Mualgal witnesses. The State went on to submit that the ‘sharing’ of which most witnesses spoke was one necessitated by the native title process. This led the State to submit:
In the absence of mutual acknowledgement by the groups in question that Warral and/or Ului equally and simultaneously belong to all of them, there cannot be recognition of a single jointly held native title: Akiba at [274], [500]. There can, however, be recognition of separate and distinct native titles, which wholly overlap one another.
If the Court finds that the native title that exists in the claim area is held as separate and distinct native titles by more than one group (in accordance with the principles in Drury), then no group could be recognised as holding exclusive native title rights. In the State’s submission, only non-exclusive native title rights are capable of being recognised in a determination of native title in respect of an area of overlap.
That is because the common law cannot recognise separate and distinct native titles held by different native title groups in relation to the same area of land if the existence of one group’s native title rights would be inconsistent with the existence of the others.
475 The Commonwealth supported these latter propositions. The Commonwealth made a different submission about the Badulgal and Mualgal having separate and distinct native title, contending it was open for the Court to find on the evidence that the two groups hold native title jointly. The Commonwealth’s submissions recognise it could be a problem if the Court found Kaurareg People had native title in Warral and Ului, but under a different normative system. It was sometimes, with respect, difficult to understand precisely where the Commonwealth stood on many material matters by the end of the proceeding.
476 It remains unclear to me whether the Badulgal respondents took a position on what was the nature of the native title if the Court were to find it held by both Badulgal and Mualgal. Rather, their position remained that there is insufficient evidence to justify a joint or shared native title. Instead, the evidence bears out the situation described by Finn J as ownership by one group (Badulgal) and permissive use by others (Mualgal). This submission relied on the evidence of Walter Nona in Akiba:
but it’s the Badulgal respondent[s’] submission overall that there can be a distinction drawn between the Shared Islands Determination Area and Warral and Ului based upon the foundation for that decision and so being the - - -
HER HONOUR: That’s the Gud Pasin argument?
MR McAVOY: Yes.
HER HONOUR: Right.
MR McAVOY: And the clear lack of agreement between the parties and the assertion of ownership by Mr Nona and then other people in this case and we submit that your Honour can accept that there hasn’t been evidence that would permit a sharing-type CD determination with Mualgal other than of the type that Justice Finn referred to of being ownership with permissive use by others which is what Mr Nona is giving evidence of in the transcript.
477 The applicant submitted that if the Court made findings which supported the existence of two distinct native titles (which of course was not its primary case, its primary case being shared ownership), then the Court should decide the issue raised by the State – namely, whether distinct native titles over the same area can give rise to the recognition of exclusive possession in each native title holding group. Mr Blowes did not develop any argument on behalf of the applicant about this issue, but rather said:
MR BLOWES: I only raise that, your Honour, as to concern about whether it does come within the separate questions because of the reference to Native Title in the separate questions. I know your Honour’s inclination was to deal with it perhaps otherwise than immediately in your Honour’s judgment. The applicant is in your Honour’s hands about that but would prefer to see a final resolution of the separate questions in this case as soon as possible.
HER HONOUR: Yes, well, I think that’s a sentiment everybody shares, Mr Blowes.
MR BLOWES: If your Honour is minded to seek to hear argument in another case about that, then there may need to be some procedures to ensure that the parties in this case had an opportunity to participate in that argument
478 The “other case” Mr Blowes refers to is the Cape York United #1 claim (Michael Ross & Ors on behalf of the Cape York United #1 Claim Group v State of Queensland & Ors, QUD673/2014), where this issue is listed as a separate question for determination in the first half of 2023.
479 The parties’ positions were fluid. Only the State very clearly developed both its position and the premises to that position.
480 As I explain later in these reasons, in my opinion, Badulgal and Mualgal hold a common or shared set of rights and interests in Warral and Ului which arise under the same normative system of traditional law and custom. The way each group has occupied and used the islands, including prior to colonisation, and certainly after it, has varied, and the use of the islands by Badulgal has been more intensive. Therefore, I do not accept the State’s submissions that the correct finding on the evidence before the Court is that Badulgal and Mualgal have separate and distinct native titles in Warral and Ului, meaning that there could be a “clash” of exclusive possession rights. It is unnecessary to enter into the debate which will be heard by the Court in a different proceeding in the first half of 2023.
APPROACH TO ASPECTS OF THE EVIDENCE
481 In this section of my reasons I set out a number of matters which have varying significance for my ultimate reasoning in the following sections. They are something of a ‘grab-bag’ of topics that need to be addressed before turning to my conclusions and explanations on the components of the separate questions.
Looking at the evidence about Warral and Ului separately
482 This was a point made most clearly by the State, both in its cross-examination (especially of the experts), and in submissions. It is a worthwhile caution. The evidence about each of the islands was different as to its quantity and quality. The islands themselves are geographically quite different, and the evidence about the way they were used is also different.
483 The applicant must discharge its burden of proof on the shared ownership case in respect of each island, separately. It would be inappropriate for the Court to take the materially larger proportion of evidence about Warral and simply apply it to Ului. Each island must be considered separately, and by reference to the evidence that pertains to that island. As senior counsel for the Badulgal respondents accepted, the Court could conceivably make different findings about native title for each island.
484 Like the evidence about Sunswit, it may be that evidence about Ului has some probative value in respect of native title for Warral, and vice versa. Overall, however, I consider it is important to treat the islands separately. Mr Blowes’ note of caution in oral submissions about not inferring too much from geographical proximity of islands to one another (referring to Dadalai) is a salutary reminder, as is much of the evidence from the Akiba transcript.
485 There was apparent agreement that from 30 May 1872 the Imperial Crown had acquired sovereignty over the claim area. It is unclear to me whether Warral and Ului are properly considered as falling to the Imperial Crown from July 1879, on the basis they lie further than 60 miles from the coast of Queensland: see Akiba at [62]. The State was the only party that did not expressly nominate May 1872 as the date of acquisition of sovereignty. In my opinion, whether 1872 or 1879 is the correct date is immaterial in answering the separate questions, as the evidence does not suggest any change, let alone a material one, in the traditional law and custom, or the use and occupation of the claim area, between 1872 and 1879.
486 There was also agreement that prior to and continuously since the 1870s the ancestors of the Badulgal and the Mualgal belonged to a regional society, whose members observed a normative system of laws and customs: see Akiba at [9], [491]. By orders dated 23 August 2010, the Akiba determination described the Badulgal at [4(1)(i)] and Sch 5 (cl (2)(i)) and the Mualgal at [4(1)(h)] and Sch 5 (cl (2)(h)).
487 In his report for this proceeding at [29]-[33], Dr Murphy describes the sources of early European records about the people of the Torres Strait. That is a reduced account of what had appeared in one of his earlier report, which I have extracted earlier: see at [188] above.
488 The parties and their experts (and the earlier expert material) rely most on the Moore book and the Haddon material. I accept those are the two most often cited, early European sources about the situation at, close to or prior to colonisation. While I accept they have some probative value, I do not consider they provide any decisive or overwhelming basis for a conclusion one way or another on any of the separate questions.
489 Evidence of pre-colonisation circumstances can be found in a number of sources. It can be found in the accounts of claim group members about what they have been told by their parents, grandparents and great-grandparents. It can be found in accounts of elders now passed away who may have been of a generation living at the time of colonisation, or whose parents were living at the time of colonisation. It can be found in pre-colonial accounts of settlers and non-Indigenous people who visited, or lived, in the Torres Strait at various times. It can be found in accounts given to settlers and non-Indigenous people by people of the Torres Strait, which those non-Indigenous people then recorded. The Court can draw inferences from all these sources where there is no direct evidence.
490 The Court can also rely on the opinions of the anthropological witnesses, drawn from their own research both scholarly and in the field, and drawing on the work of other persons with expertise. It can also rely on the work of other experts such as linguists, ethnographers, and archaeologists, some of whom might have been working with Torres Strait Islanders who were alive at the time of colonisation or shortly after it. The Court can draw inferences from these sources as well.
491 In this case, I have found the pre-colonisation evidence drawn from non-Indigenous sources to be of variable reliability. The applicant and its experts tended to emphasise these sources perhaps more than I found persuasive, but as the proceeding developed, I consider that was because the applicant and its experts became more conscious than they might have been at the start of this proceeding that a greater focus on the pre-sovereignty position was required because the more contemporary position about shared ownership might justifiably be seen as a substantial modification of the position under traditional law and custom.
492 While I found the anthropological evidence helpful in many ways, I find the applicant’s three expert witnesses tended to gloss over evidence that was inconvenient to their respective theses on shared ownership. I also find that, contrary to Mr Leo, they did not distinguish as persuasively between the reliability of the pre-colonial evidence, but rather tended to take it all at face value, an approach with which I respectfully disagree. That said, there were some pieces of evidence from non-Indigenous people in the pre-colonial period which I have found persuasive, and probative.
493 I find the most persuasive evidence about the pre-colonisation situation in respect of Warral and Ului comes from direct evidence of elders now passed away, but recorded, and the evidence the Court heard from the present generations of Torres Strait Islanders. This includes much of what appears in the Akiba transcripts.
494 In his 2015 Warral and Ului connection report, Dr Murphy expressed this opinion about the pre-colonisation situation at [48]:
These sources allow for a reasonable degree of confidence in making inferences about the relationships between the Kaurareg, Mualgal and Badulgal peoples in the period of several decades before, and at the time of, annexation. Although there are few specific references to the islands of Waral and Ului in these sources, on the basis of inferences about the relationships between these groups, and the geographical location of these islands mid-way between the Kaurareg islands in the south and Moa and Badu in the north, it is reasonable to infer that all three groups were likely occupying these islands intermittently up to the mid-1840s in the course of travelling between the three main island groups.
495 The reference to “these sources” is in substance a reference to Haddon and Thompson’s account as recorded by Brierly. This was the underlying thesis of Dr Murphy’s opinion in his reports and evidence in this proceeding as well. He produced a modified version of this paragraph at [69] and [85] of his amended report:
These sources allow for a high degree of confidence in making inferences about the relationships between the Kaurareg, Mualgal and Badulgal peoples in the period of several decades before, and at the time of, the colonial annexation of the claim area. They provide a clear depiction of alliances between the people of Badu and Mabuiag, and between those of Mua, Naghir and Muralag, and of hostilities between the two sets of allies; they also contain sufficient detail to demonstrate that the relationships between the two groupings was more complex than a situation of all-out war, and that the fighting was not motivated by ambitions of territorial expansion.
Although there are few specific references to the islands of Warral and Ului in these sources, on the basis of inferences about the relationships between these groups, and the geographical location of these islands mid-way between the Kaurareg islands in the south and Moa and Badu in the north, it is reasonable to infer that all three groups were likely occupying these islands intermittently up to the mid-1870s in the course of travelling between the three main island groups.
496 Between [65] and [85] of his amended report, Dr Murphy discusses some of the historical evidence about conflict between the groups and concludes it did not concern rights to land (or waters), and that relationships were not always hostile.
497 It is clear that Dr Murphy has moved, between 2015 and 2022, from a “reasonable” degree of confidence to a “high” degree of confidence about these early sources. He was not cross-examined about this change. I infer this is but one example of how the now sustained conflicts over Warral and Ului, and the effective taking of sides by the applicant’s three experts, have – even if subtly – affected the way they express their opinions.
498 I do not accept Dr Murphy’s basic thesis. I do not consider the evidence about the pre-colonial situation demonstrates “all three groups were likely occupying these islands intermittently up to the mid-1870s”, if by “occupying” Dr Murphy is intending to suggest, as I infer he is, that all three groups demonstrated rights of an ownership kind in the islands in the times before the mid-1870s.
499 To the contrary, I find there is little or no evidence of Kaurareg ‘occupation’ of any kind (let alone of the ownership kind) up to the mid-1870s, and no evidence of Kaurareg assertions of ownership, or conduct consistent with assertions of ownership of the islands. There is little evidence in respect of Mualgal, but there is some. There is such evidence in respect of Badulgal. These matters I deal with in more detail later in these reasons.
The relevance of the 2015 mediation in this proceeding
500 The parties differed about the relevance of the process and outcome of the 2015 mediation, which was held in Cairns, and conducted by the Honourable Stanley Jones AO QC and this Court’s then National Native Title Registrar, Christine Fewings. The State submitted that no copy of the mediation agreement was tendered, but there were two copies annexed to Dr Hitchcock’s report. The evidence about the mediation nevertheless remains incomplete. Obviously, aspects of the negotiations were confidential and therefore not the subject of evidence.
501 All three groups were represented, but there is no evidence recording a comprehensive or complete list of the attendees for each group. Some lay witnesses gave some evidence about who attended. I find that the group of representatives for the Kaurareg People included Fr Paul Tom, Thomas Savage, Eliziah Wasaga and Naton Nawia. The group for Mualgal included Fr Tom, Naton Nawia and Nazareth Adidi. The fact that two Kaurareg-identifying people (who gave evidence in that capacity in this proceeding) were also amongst the Mualgal representatives is not insignificant in my opinion. It is probative of the contemporary close relationships and mutual interests between Mualgal and Kaurareg People.
502 The group for the Badulgal included Alick Tipoti, Titom Nona and Ronnie Nomoa.
503 The evidence suggests that none of the other lay witnesses participated in the mediation. Fr Paul Tom gave evidence that a person called “Troy” attended, but Troy Laza gave clear evidence that he did not attend the mediation.
504 Various lay witnesses were asked to identify who else was at the mediation. The names given are sometimes difficult to match up with other evidence about the identities of individuals. Doing the best I can, and taking the two pages of the document headed “Mediation Agreement QUD6005/2002 (Warral & Ului Claim)” that are attached to Dr Hitchcock’s report, I find:
(a) The people in attendance whom I can ascertain from other evidence are Kaurareg and Mualgal identifying people were Thomas Savage, Eliziah Wasaga, Milton Savage, Galgo Sinazi, Fr Paul Tom, Naton Nawia, Nazareth Adidi, Garagu Kanai, Saila Savage.
(b) The people in attendance whom I can ascertain from other evidence are Badulgal-identifying people were Laurie Nona, Alick Tipoti, Victor Nona, Tala Nona, Ronnie Nomoa, Richard Bowie, Manuel Nona (deceased), Alec Sapowa (deceased) and Tom Jack Baira. Mr Titpoi’s evidence was that Malawap Nona and Alan Nona also attended. Generally, I found Mr Tipoti to have good recollection, so I am prepared to accept his evidence on this.
(c) There is insufficient evidence about the following people to identify them as belonging to one group or another (or more than one group): Clara Newie, Kara Savage, Louise Manas, Bow Wagala and Isaac Makaku. I note, however, Issac Makaku is an individual who made an interlocutory application prior to the Court’s consent determination in David and in his affidavit material he identified himself as a Kaurareg man.
(d) There may have been more people who attended. There are signatures on the two documents annexed to Dr Hitchcock’s affidavit with no names printed next to them.
(e) Further, I infer that not all individuals present signed this mediation agreement.
505 What follows is Alick Tipoti’s description of the outcome of the mediation:
MR BLOWES: In your understanding did that agreement result in – or would the implementation of that agreement result in some change to the way that Warral and Ului are regarded?
ALICK TIPOTI: Not really, simply because, as you’ve heard from previous witnesses and general knowledge throughout every island, we utilise those islands together. It – it’s – I’m speaking from a Badulaig perspective. I feel it’s – because I don’t know the – the closeness of the grandfathers because I was – we’re too little to understand, but we carry those closeness today, especially with Mua from myself personally. So, I’m not talking for Mua, but I believe it is the best for all of us.
MR BLOWES: And did you agree with it just because it’s your view that it’s best for all of us, or did you have any other reasons for it?
ALICK TIPOTI: At this time I only – I feel that it is best for all of us, and for our children’s children.
506 This is evidence to which I attach considerable weight. Mr Tipoti gave his evidence with great feeling, and I consider he was honest and genuine in his evidence to the Court. He is clearly a dedicated supporter of a shared ownership outcome for these islands.
507 In his evidence in Akiba, as I have set out above, he clearly said it was his understanding that Warral and Ului belonged to the Badulgal and Mualgal, that he had “heard it many times not only from my father and stories you hear about people from Badu and Mua going fish around there”.
508 In other words, in his evidence in this proceeding about the mediation, Mr Tipoti is clearly describing an arrangement that has been reached, which he considers is in everyone’s best interests, but it is a contemporary arrangement. It is not regarded by Mr Tipoti as reflecting the ‘letter’ of traditional law and custom; it reflects – as he says – his view about what “is best for all of us, and for our children’s children”.
509 The applicant appears to use the 2015 mediation agreement as evidence of a consistency between that event and the shared ownership claim. The applicant says the evidence about, and the outcome of, the 2015 agreement:
complements all the other evidence and arguments relied upon by the Applicant to support a conclusion that each group satisfies the acknowledged and observed laws and customs requirements for ownership.
510 The applicant also appears to contend the 2015 agreement is evidence of mutual acknowledgment of ownership: see [98] of the applicant’s reply submissions.
511 No other party sought to rely on the 2015 agreement for any material factual purpose.
512 Counsel for the State made this submission in closing oral submissions:
MR MCKECHNIE: There was plainly - and this is in the written submissions - when the witnesses gave evidence about the 2015 agreement, there was in some cases expressly an understanding that that was happening because of Native Title being Commonwealth law regarding Native Title which would include this litigation and not necessarily what is traditional laws and customs.
513 I agree with that submission. It is consistent with the evidence of witnesses such as Mr Tipoti. The applicant’s reliance on the 2015 agreement involves a bootstraps argument. The shared ownership claim only arose because of the 2015 mediation. There was never such a claim before that mediation outcome. There were claims by individual groups – notably first Badulgal, then Kaurareg and only very lately Mualgal. The evidence in Akiba does not support a shared ownership claim.
514 Further, it was the 2015 agreement, and the authorisation process to implement it, which gave rise to the joinder application by the Badulgal respondents. I do not consider the evidence about how the 2015 mediation agreement came about, who said what or took what position, is probative of any issue to be decided in this proceeding. This proceeding is about native title held in accordance with traditional law and custom. The 2015 mediation was avowedly a recently developed compromise. The evidence in this proceeding about what was discussed, even where it touched on traditional matters like the Waubin myth, was so mixed in terms of its context and purposes, and peoples’ good intentions to attempt a resolution, that I do not consider it is reliable in terms of tending to prove the situation under traditional law and custom. The existence of the 2015 mediation agreement does not preclude the shared ownership claim being made out, but to use it as support for the claim is to put the cart before the horse.
Relevance of ‘Coming of the Light’
515 In his article entitled “Mission, Church and Sect”, Dr Jeremy Beckett describes and analyses the influence of the various Christian churches who have operated in the Torres Strait. He describes the ‘Coming of the Light’ in the following way:
In 1871, the Reverend Samuel McFarlane and the Reverend AW Murray arrived with eight Loyalty Island teachers. The teachers were to do the pioneering work of evangelisation in the islands and along the Papuan coast, while their white directors set up the headquarters, which were to be the springboard for the Papuan campaign.
The teachers were themselves recent converts, but McFarlane argued that on this account they were better able to ‘get at the heathen of their class’ (McFarlane 1888, p. 138). Certainly there was a ready response. Just one year later, Murray declared that the Murray Islanders must be a people ‘prepared of the Lord’ (London Missionary Society [LMS] Reports 1872, p. 33):
The entire population … have attached themselves to the teacher. They treat himself and his family with great kindness, supplying their wants without charge so far as they are able and seeming ready to yield themselves implicitly to his guidance. No work is done on the Sabbath and the people come together from the three islands to attend the services, which except for the hymns and reading of the scriptures are conducted in the native tongue.
The work of the teachers was not everywhere so easy, and even the Murray Islanders had their moments of backsliding; seen in the long view, though, evangelisation progressed steadily.
Present-day islanders describe the ‘coming of the Light’ as though ‘heathen darkness’ was dispelled in an instant. Closer inquiry indicates that, although the missionaries claimed a religious monopoly, Christianity coexisted with Indigenous beliefs for a long time. But the teachers destroyed the old shrines, took away the sacred paraphernalia and put an end to the cults. By 1898, Haddon found difficulty in eliciting this kind of information, and concluded that much had already been lost.
516 In his Badu connection report, Dr Murphy explains the importance of the introduction of Christianity to Badu:
Badu was among the last of the permanently inhabited islands of Torres Strait to receive a London Missionary Society evangelist into their community, but they had had intermittent communication with agents of the colonial government for several years before this occurred. The first missionary to arrive at Badu, in 1874, did not stay, deciding instead to move to Moa because he could not induce the Badulgal to settle permanently in one place.” By 1884 they decided to invite a missionary from Mabuiag to live at Badu, and agreed to the LMS condition that they settle in a single village site (Beckett 1987:152). This event is commemorated in a monument at Makankula, on which it is recorded that Dorake was the person who brought the gospel to Badu.
517 Underlying much of the Badulgal respondents’ case is the theme that the present emphasis by the lay witnesses on sharing, and indeed the whole shared ownership claim made by the applicant, is a post-colonisation approach, which is likely to have its origins in the teachings of the Christian Church, and the genuine and dedicated views of many Torres Strait Islanders that the correct way of life involves putting conflict aside and adhering to a more co-operative model of property ownership.
518 Mr Leo put it this way in his report at [124]:
Note that those who argue for shared Rights & Interests in Warral and Ului almost always locate this within pax christiana, gud pasin (and the like), and/or recent native title processes such as claimed ‘agreements’ (that are significantly contested). As such, they do not relate to the period ‘at sovereignty’ that Question 1 calls for addressing.
519 In Akiba, Walter Nona described the islands to the west of Badu, close to Badu Island itself, as belonging to Badulgal, but that Mualgal and Mabuiag People could “come in” and use them but would need to ask. As the Badulgal respondents contended, Walter Nona’s evidence is highly supportive of their case, that both the islands in the shared islands determination and Warral and Ului belong only to Badulgal. Walter Nona then said (I have extracted this earlier but repeat it here):
You know, I mentioned that before: we are one. Those days been happening before. Now, today, we become one.
520 After Christianity and its teachings were introduced to the Torres Strait Islanders, the evidence suggests they were encouraged by the missionaries not to engage in conflict, but rather to tolerate and “share”.
521 In my view, lay witnesses in this proceeding such as Fr Paul Tom also sought to identify a change in attitudes to ownership of country as coming about because of Christian teachings. While being asked about the 2015 mediation, and having expressed the view that the mediation outcome “settled that matter”, Fr Tom gave the following evidence (amongst some leading questions, which I have put to one side):
MR BLOWES: Do you remember anything said by anybody about whether those areas were shared in the past?
FR PAUL TOM: Was in the past up to the civilisation.
MR BLOWES: Always in the past.
FR PAUL TOM: When the island war was settled down, everybody know when the Christianity been come up, so we all shared that land without.
(Emphasis added.)
522 Fr Tom was then asked a different question and did not complete his answer. Nevertheless, this is but one example of what I consider to be a relatively consistent theme amongst the applicant’s witnesses of referring to sharing of islands such as Warral and Ului because this is what Christian teachings require.
523 In my view, the evidence suggests this Christian notion of ‘sharing’ is different from gud pasin and ailan pasin.
524 I respectfully adopt the finding of Finn J that the principles of gud pasin and ailan pasin are normative traditional principles, at work in the region well before colonisation. They involve, but are not limited to, concepts of sharing of resources. They did not extend to sharing as a modification to ownership rights in country, whether land or sea, although they may well have been responsible for what Finn J called “permissive use” of land and sea country, a term I have respectfully adopted. Therefore, in the lay evidence it is important to distinguish between what is evidence of permissive use (under traditional law and custom) and what is evidence of post-colonial, Christianity-influenced wider concepts of sharing.
525 In my opinion, the changes wrought by the introduction of Christianity, and Christian teachings, to the lived experiences of Torres Strait Islanders are relevant to the evidence the Court has heard from the lay witnesses. That is no criticism of the witnesses, who were obviously dedicated to their Christian beliefs. The Court acknowledges and respects those beliefs. What I observed, however, was a reluctance to acknowledge or talk about pre-colonisation events involving conflict of any kind, violence, war between Islanders, and in particular head hunting and like practices. There was a general preparedness to downplay both the place of this kind of conduct in pre-colonisation communities and its frequency. This led to several witnesses extending the ‘sharing’ narrative to pre-colonisation times in a way which had no real factual basis.
526 I have set out my findings about this map in a separate section because of the unusual way in which it came into evidence, and because of what I consider to be its significant probative value.
527 On 16 October 2021, towards the end of the lay evidence hearing and during the evidence of Geiza Stow, Ms Stow volunteered that her father had prepared a map, in 1995, of Badulgal country in the sea and on the islands. This was her evidence:
MS PHILLIPS: So whose family has made a garden on Warral?
GEIZA STOW: I believe my Athe Laza. Laza’s got a garden bed there. Like I said, dad did the map and looking at the map, it’s on the ---
MR McKECHNIE: I object. If there is a map, then the map ought to have been provided and included in the outline. There’s nothing in the witness’ outline that even identifies the existence of the map.
HER HONOUR: Ms Phillips, you may need to develop that ---
MS PHILLIPS: Yes, indeed your Honour. I’ll do it through maps that we already have.
HER HONOUR: Well, now that that map has been mentioned though, you may need to lead some evidence without leading ---
MS PHILLIPS: Yes.
HER HONOUR: --- about whether it still exists and the like.
MS PHILLIPS: Certainly, your Honour.
HER HONOUR: You can’t kind of leave that hanging I think.
MS PHILLIPS: Thank you, your Honour. Can you produce – lets go back a step. We need to know more about the map that your father did. Does it still exist?
GEIZA STOW: Yes.
MS PHILLIPS: Do you have a copy?
GEIZA STOW: Yes.
MS PHILLIPS: Do you have a copy here?
GEIZA STOW: Yes.
MS PHILLIPS: May we show the Court and the other parties a copy of that map?
GEIZA STOW: Yes, because that map I helped my dad on Thursday Island when I was working for Far North Queensland TAFE from 1989 to 1996, so it was ---
MR SMITH: Your Honour, I now take objection to going any further, we’re going to go into voir dire because quite frankly this material under the orders ought to have been produced in May and I want to at least this document to understand more about it, and take some instructions before we start getting more evidence onto the transcript.
HER HONOUR: Well, I overrule that objection and I’m going to allow the witness to give the evidence about it.
MR SMITH: If it please the Court.
HER HONOUR: Then if counsel need time to take instructions and form a position about it, or you cross-examine about it, given that time but it seems to me the evidence is relevant. It’s direct evidence from this witness’ experience. It is, to put it mildly, unfortunate that it has not been produced in the way contemplated by the orders, but it is clearly relevant and it is clearly evidence from this witness’ direct experience, so I propose to allow it. Yes, Ms Phillips
528 The map was then disclosed to all parties, and junior counsel for the Badulgal respondents cross-examined Ms Stow about it. A digital copy of the map was tendered during her cross-examination. The Court was shown a photocopy of the original in Court during Ms Stow’s evidence. It was very large (approximately two metres long and one metre wide), and had been laminated.
529 As Ms Stow testified, and as was plain from the original and the copies, Ms Stow’s father had drawn the map by hand. She also gave evidence in cross-examination by the State to this effect:
MR McKECHNIE: You had told Mr Smith that when your father had drawn that map he was mapping out Badulgal country, the islands and the seas, yes? Can I please ask you say yes?
GEIZA STOW: Yes.
MR McKECHNIE: It’s being recorded so the recording won’t pick up a nod.
GEIZA STOW: Yes, yes.
MR McKECHNIE: Thank you. And when you say that that’s Badulgal country, that’s another way of saying that these other seas and islands Badulgal own?
GEIZA STOW: That’s right.
MR McKECHNIE: According to your traditional laws and customs.
GEIZA STOW: That’s right. When my dad did this it was at my place on Thursday Island. He had no other way to do the map of Badu and then all the coast around, all the little sand bank. He had it all locked in in his head.
…
MR McKECHNIE: Yes. And it looks like what has happened is that your father has drawn a map on different sheets of paper that have been stuck together?
GEIZA STOW: That’s right. That’s right. He had a butcher paper which was only - yeah, that’s right.
MR McKECHNIE: It must have taken him a long time to draw.
GEIZA STOW: That’s right.
MR McKECHNIE: And you were helping him.
GEIZA STOW: Yes. Some of them are my spellings, my handwritten. I’ll tell you what. There’s a story to this. As we were doing it then we didn’t put a north, south, east and west, so that’s how you see the map, but dad did it from his inside knowledge, and it did take a while.
…
MR McKECHNIE: But this map, just to confirm, I think you said before it was all done from his memory.
GEIZA STOW: Mmm.
530 I infer that last response was an affirmative answer from Ms Stow.
531 During cross-examination, Ms Stow pointed to the map to show the Court where it depicted Warral (spelled “Warar” on the map) and Ului (“Uluia”). On Warral as shown on the map, Ms Stow explained that “Kurasar” on the left-hand side (apparently, the south side of the island) means “rock”. On Ului, Ms Stow explained that “Makanig Nguik” must have been a place where Aidan Laza thought there was water, because “Nguik” means water. This equates to the name used by Walter Nona in his Akiba evidence. Ms Stow was unable to explain what Wiia Buth or Duug Buth meant. At my request, Ms Stow also indicated to the Court where Sunswit and Dadalai were depicted on the map.
532 Troy Laza, who it will be recalled is Ms Stow’s son, gave evidence that he had made a physical and a digital copy of the original map, which was drawn on several sheets of butcher’s paper taped together, by sending the map to Cairns “seven or eight years ago” as part of a traditional ecological knowledge project that Mr Laza worked on as a ranger. After Mr Laza got the map back, the physical copy of the map remained in the rangers’ office until August or September 2021, when Mr Laza gave it to a relative to look at.
533 Mr Laza took the map back and gave it to his mother on 14 October 2021, after the viewing around Warral. He sent the digital copy of the map to the applicant’s solicitor on 16 October 2021, after Ms Stow’s evidence in examination-in-chief.
534 Ms Stow gave evidence that her father created the map from his memory. She testified that he had drawn the map following the High Court’s decision in Mabo (No 2), “when native title came through the Torres Strait”. In cross-examination, Ms Stow gave evidence that the map shows which islands and seas Aidan Laza believed belonged to the Badulgal. She testified that her father outlined the islands and marked places of interest on them, while she handwrote some of the labels for the names of those places. Ms Stow testified that she did not know the meaning of some of the names, but that her father would have known what they meant.
535 It will be recalled that Wolfgang Laza is Ms Stow’s younger brother, a member of the applicant’s native title claim group, but a witness for the Badulgal respondents. Mr Wolfgang Laza gave evidence about a photo that he took of his father “somewhere around” 1998, which shows Aidan Laza working on the map. Thus, Mr Wolfgang Laza was also present when his father was making the map. In examination-in-chief, Mr Wolfgang Laza’s evidence was that he had custody of the original map since its completion; in 2000, he had given Mr Tipoti the map to make copies of it and laminate it in Cairns and, after it was returned to him, the map was “hidden and put away in my cupboard for quite some time”.
536 Mr Wolfgang Laza’s evidence was that he did not show the map to the legal representatives of the Badulgal respondents until 21 October 2021 because, after his father passed away, he was disappointed that his father’s aspirations for native title had been frustrated, and he became disengaged with the native title system:
When native title, the Mabo case was passed down, my father was very excited, and I can see his face lit up and his eyes shine. It was like an opportunity for TOs to gain recognition for their traditional land. But throughout the years it didn’t go good, and me and my father and the other TOs we come across a lot of obstacles. And my father just at the end gave up hope and he died of cancer, so shortly after that I resigned from native title and I put all these documents and all these maps that he drew during his time and I put them away and I never looked at it again.
537 Similarly to Ms Stow, Mr Wolfgang Laza’s evidence was that the map shows all of the islands that belong to the Badulgal. Mr Wolfgang Laza listed off all of the islands noted on the map, including Warral, Ului, Sunswit and Dadalai. In cross-examination, he gave evidence that “Buth” means beach, and that he knew where Wiia Buth and Duug Buth are on Warral. He said that he did not know what “Kurasar” meant, but speculated that it “could be mean large rock”, and that he was told growing up that the Kurasar as shown on the map of Warral was Pithalai. Like Ms Stow, Mr Wolfgang Laza said that the “Makanig Nguik” label on Ului showed where there was water – or a well – on that island. Mr Wolfgang Laza agreed that his father had not marked any gardens on the map of Ului, despite Mr Wolfgang Laza’s evidence that his grandfather had once had a garden there.
538 The lay evidence is consistent and persuasive. I find this was a map drawn by hand by Aidan Laza, a respected Badulgal elder, and the purpose of drawing it was to record the extent of Badulgal country after the High Court’s decision in Mabo (No 2). I accept Mr Aidan Laza was buoyed by the prospect of Australia’s First Nations peoples having their land (and sea) ownership formally recognised by the Australian legal system. I find he wanted to ensure that Badulgal could take advantage of the Mabo (No 2) decision and the enactment of the NTA. In other words, he set about creating a detailed record of Badulgal country. I find he constructed the map from memory, a hugely significant feat which demonstrates his intimate knowledge of the land and sea he understood to belong under traditional law and custom to Badulgal.
539 I accept the submission of the Badulgal respondents that the creation of this map may explain the original native title claims made by the Badulgal, including their claim to sole ownership of Warral and Ului.
540 There is no clear explanation why this map was not initially produced to the Court by the applicant. In a sense it does not matter, because Ms Stow genuinely and freely volunteered evidence about its existence and it was tendered. I accept her evidence, and the evidence of her son Troy and her brother Wolfgang/Samat about how it was copied and stored, and then eventually disclosed for the purposes of this proceeding. I find the witnesses for both the applicant and the Badulgal respondents themselves appear to have become aware at some stage, possibly during the lay evidence itself, that the map would be of significance to the proceeding. I accept it is a very important family heirloom and all members of the Laza family were concerned that the original not be surrendered and remain within the family. That is appropriate and that is why the Court was prepared to accept a digital copy as evidence.
541 During his cross-examination by counsel for the Badulgal respondents, Dr Murphy gave some evidence about his knowledge of Aidan Laza’s map. Dr Murphy testified that he had been shown the map by Aidan Laza himself, as well as by Mr Wolfgang Laza, but that he could not recall whether either man had told him that the map showed which islands belong to the Badulgal. Dr Murphy gave evidence that he knew that Aidan Laza was “one of the knowledgeable old men and women” of the Badulgal. His evidence was that in 1999, when he was preparing the connection report for the proposed Badu consent determination, Dr Murphy sat down with Aidan Laza and Mr Laza explained to him that the map was “his knowledge put onto paper in the context of native title”. I find it is more likely than not that Dr Murphy has known about the Aidan Laza map since approximately 1999.
542 Dr Murphy also prepared a field note in 17 July 2014 of a conversation he had with Mr Wolfgang Laza about Aidan Laza’s map, which included Dr Murphy’s sketch of part of the map. A copy of the field note was tendered as exhibit B40. In cross-examination by junior counsel for the Badulgal respondents, Dr Murphy gave the following evidence:
MR SMITH: You think that’s correct? I ask if you can bring up exhibit A51 please. On exhibit A51 you can see “Uluia” spelt U-L-U-I-A; do you agree with that?
DR MURPHY: Yes. Now, I’ve just seen on the first page of that on my note that says, “map from his” - referring to Samat [Mr W Laza] – “his father Aidan (photograph section of Warral and Ului)”.
MR SMITH: And you took a photograph because you identified when you first saw this document – I’m sorry, when you saw this document that Samat provided you, it had quite a lot of information on it that was relevant to the Determination of the Native Title of Warral and Ului; do you agree with that?
DR MURPHY: Sorry, can you say that again.
MR SMITH: You took a photo of this map because you - the diagram - you took a photo of the map and you made the diagram of part of the map being the part that is Warral and Ului because when you first saw it you considered the map was potentially significant in respect of the Determination of the Native Title for Warral and Ului; do you agree or disagree with that proposition?
DR MURPHY: Yes, I agree with that.
MR SMITH: And what is particularly noticeable about this map is the level of detail about certain locations on that map; is that correct?
DR MURPHY: Yes, it’s a detailed map.
MR SMITH: Taking on Ului you’ve got Mokan Nguk; is that right?
DR MURPHY: Yes.
MR SMITH: And that means “well”, doesn’t it?
DR MURPHY: Yes.
MR SMITH: No-one else had ever told you or had identified or shown you a well at Ului before you saw this map; is that correct?
DR MURPHY: It’s possible. Ronnie Nomoa took me there and showed me a well. I don’t know whether that was before or after this.
543 Dr Murphy gave the following evidence in cross-examination by junior counsel for the Badulgal respondents:
MR SMITH: In the time that you had been undertaking research and fieldwork in respect of Warral and Ului, nobody else had provided you with a map of the region including Warral and Ului with the level of detail contained in this map; is that correct?
DR MURPHY: Correct.
MR SMITH: Yet you didn’t include it in your 2015 report, that’s right isn’t it?
DR MURPHY: Yes, I don’t think I made reference to it.
MR SMITH: And you didn’t make reference to it in your amended expert report for this proceeding?
DR MURPHY: That’s correct.
MR SMITH: And you have already agreed the person who prepared this report was someone who you considered to be an elder of the Badulgal who had extensive knowledge of the law, traditions and customs of the Badulgal; you agree with that?
DR MURPHY: Yes.
MR SMITH: So can you help me, Dr Murphy, why didn’t you include reference to this report or reference to this map in your report?
DR MURPHY: In my 2015 report or my recent one?
MR SMITH: We’ll start with the 2015 report.
DR MURPHY: Well, I took this as one person’s interpretation of cultural information but in the context of the 2015 report that was written in light of an agreement that had been reached between the three groups that acknowledged each other’s rights and I didn’t think it was appropriate to privilege one person’s point of view.
MR SMITH: And why did you not include it in the - why did you not refer to it and deal with it in your amended expert report you filed in this proceeding - -
DR MURPHY: Yes, I guess that’s an oversight. I probably should have.
MR SMITH: You saw this map again last year at the hearing, did you not?
DR MURPHY: I did.
MR SMITH: You had time to inspect it and review it?
DR MURPHY: Yes.
MR SMITH: That’s a very large oversight, is it not, to leave reference to this map out of your amended report.
DR MURPHY: It’s an oversight.
544 I found Dr Murphy’s evidence about this map difficult to accept at face value. He is an extremely experienced anthropologist, not simply in academic terms, but in practical terms. He has a very high degree of familiarity and experience with native title claims, including with the intra-Indigenous disputes that arise within them.
545 I find that in any other context, if Dr Murphy had been presented with a map like this, hand drawn from memory by an elder of a claimant group, it is likely he would have given it real prominence in any opinions he expressed about a claim, and if he was to prepare a report, a map like this would have been likely to assume some prominence in such a report. I find it difficult to believe Dr Murphy would not have given a map like this significant weight as a relatively early and important account of country by a knowledgeable elder.
546 His failure to address the map at all, in any of his reports or in his evidence, is not accurately described as an oversight. I find it is another example, a clear and cogent example, of Dr Murphy (like his two colleagues called as experts for the applicant) pursuing a line of preparation, research and reasoning which was calibrated to advance the shared ownership claim. I do not find he did so dishonestly or disingenuously; rather that he has been so closely involved in the shared ownership claim as it has taken shape that it seems to me he has lost some of his objectivity, perhaps unconsciously.
547 I find that by the time he was under cross-examination, Dr Murphy sought to downplay the importance of this map. The reasons for him doing so are not relevant and I make no findings about them. It was clear to me he was trying to downplay its significance. I reject his opinions about the map not being significant, or being able to be dismissed as “just” the opinion of one person.
548 In summary, I accept the submission of the Badulgal respondents that this map is a highly significant piece of evidence. Its existence was a spontaneous and genuine volunteering of information to the Court by Ms Stow, whom I considered to be an impressive witness. The map was drawn by hand shortly after Mabo (No 2) and the enactment of the NTA. It was drawn from memory by a senior Badulaig man. It is broadly consistent with Walter Nona’s evidence in Akiba. I reject the applicant’s characterisation of the map as showing no more than a “community-centric” view of country designed to “enclose” the Badu claim area. I consider it was clearly an account by Aidan Laza of land, inhabited and uninhabited, and the seas, that he had been taught, and knew, belonged to Badulgal.
549 I have found the earlier connection reports in evidence for each of the home island determinations, and the connection reports for the second shared islands determination, of considerable assistance in resolving the separate questions. Some are by the same experts as appeared in this proceeding, some are not. The home island connection reports reveal a more intense focus on the history and characteristics of each of the groups concerned, devoid of the overlay of the debates in the present proceeding. The shared islands connection reports present an anthropological analysis of a not dissimilar situation to the present proceeding, but again without the overlay of the tensions that have here arisen.
550 In both cases, the earlier reports have a focus which I consider more objective than the expert reports in this proceeding, which have been produced in a situation of heated contest. The applicant’s three experts are deeply entrenched in this region – with, I accept, only good intentions and care for the interests of the people they have supported for decades. However, I did find that in their evidence in this proceeding each of them tended to slip, to various degrees, into a defensive position in favour of the group they had worked with, and in favour of the shared model from the 2015 mediation which they were all keen to defend. As I observe at various points in these reasons, their opinions were in the past sometimes differently expressed, and did not always reflect the factors they sought to emphasise in this proceeding.
551 The following sections set out opinions drawn from earlier reports which I consider material to the resolution of the separate questions and which I agree with and adopt in my reasoning.
552 In his 2000 Badu report, and relevantly to the issues on the separate questions, Dr Murphy gives this general overview of the Badulgal and their way of life pre-colonisation:
The economy of the Islanders involved hunting for terrestrial and marine animals, fishing, gardening, foraging for wild vegetable foods, and trade in a wide array of manufactured items and ceremonial objects. Foodstuffs were also extensively traded between people from different islands according to the specialisations that developed out of the opportunities and restrictions inherent in the variety of ecological zones throughout the Strait.
Badulgal, indeed all Torres Strait Islanders, were a maritime people, obtaining large canoe hulls from neighbouring Papua and combining them with the double outrigger technology for which the Islanders were renowned. This technology enabled them to exploit the rich resources of the shallow reef strewn waters of Torres Strait, to travel from their home islands to outlying small islands to garden, hunt and forage, and most importantly, to participate in an extensive network of trade relationships stretching from well down Cape York Peninsular on the Australian mainland to the Papuan coast and including all islands in between (cf Lawrence 1994). The canoes also allowed another, less friendly form of communication between neighbouring groups, being warfare.
553 The next following general opinion is consistent with the lay, expert and documentary evidence in this proceeding, and with the evidence from Akiba I have set out earlier in these reasons. It illustrates a fundamental pre-colonisation alliance between Mabuiag and Badu that did not include Mua. It is consistent with my view of the evidence post-colonisation about the closeness of Mualgal and Kaurareg being cemented after the forced removal of Kaurareg People to Mua in the 1920s.
Although geographically closer to Moa, in terms of socio-cultural characteristics Badu is classified with Mabuiag to the north to make up the Central Western group. Historically there was great animosity between the Mualgal and Badulgal, but over the last 130 years the relationship has become much closer, although the historically closer relationship between Mualgal and Kaurareg remains, as does that between Badulgal and Gumulgal of Mabuiag. Indeed the distinction between Badu and Mabuiag in former times was minimal to the point where until the arrival of missionaries and settlement in permanent villages in the 1880s the two are more appropriately grouped together as a single social system. Since that time quite separate identities have come to be maintained by each.
554 There is a footnote to the end of the third sentence which should also be reproduced:
The story of the last war between the people of Badu and Mabuiag against those of Moa is widely known among descendants of the survivors. This occurred shortly before the Coming of the Light. The people of Badu discovered a wrecked ship on the reef near Ului, and salvaged a number of steel weapons. With these they attacked the Mualgal and decimated their population.
555 Dr Murphy returns to the pre-colonisation evidence of this closeness between Badu and Mabuiag, and it is a theme of that part of his report dealing with pre-colonisation times. This observed feature of the pre-colonisation relationships between people on the Western Torres Strait Islands illustrates why it would not be irrational, or incongruent, for Badulgal to have rights and interests under traditional law and custom in islands geographically closer to the Badu, which were rights and interests not shared with Mualgal. Indeed, that is the thrust of some of the Akiba evidence to which I have referred above.
556 Another consistent expert source is quoted by Dr Hitchcock in his expert connection report for the first shared islands determination. In discussing the closeness between Badu and Mabuiag, he gives this extract:
Fitzpatrick, in her doctoral thesis, also states:
Young men from Badu and Mabuiag often were initiated together and in all probability they formed partnerships for trade with Daudai (Papua New Guinea), exchanged sisters in marriage arrangements, and conducted warfare together. If they died together as fierce Western Torres Strait warriors their relatives would gather at Pulu, the small, granite studded islet on the western side of Mabuiag and commemorate their spirits in the death dances of the Markai Tai Ceremony (Fitzpatrick-Nietschmann 1980:138).
557 The traditional relevance of gardens to rights in land is also apparent from Dr Murphy’s general introductory opinions in his 2000 Badu report:
Difficult and uncertain a task as it is, speculative reconstructions of Badulgal society before the Coming of the Light describe the people as organised into ‘totemic clans’.
Beckett writes:
Badu’s social organisation was continuous with, if not an extension of Mabuyag’s. The basic building blocks of social organisation were patri-clans, each identifies with a number of totemic species. ... membership was normally inherited from the father. Clans claimed joint rights to fetishes, sacred places and ritual offices, as also to stretches of foreshore, off-shore islands and tracts of land in the interior. However, certain garden places were associated with individuals, or their immediate descendants. Adjacent totemic clans were further grouped into three districts, called ‘tribes’ in the post-contact period, namely Badu, Argan and Wakaid (Beckett 1987:150, references omitted).
The people had no fixed villages, moving between a number of residence sites depending on seasonal availability of resources, weather conditions, trading opportunities and the vagaries of the warfare endemic throughout Torres Strait and Papua at the time, and in which the Badulgal were enthusiastic participants.
Indeed the Badulgal had a reputation for being particularly aggressive and successful in headhunting, especially when working in concert with their Gumulgal kinfolk from Mabuiag. Badulgal were participants in the cult of Kwiam at Mabuiag, and in essence this was a cult of warfare and headhunting (Haddon 1904:67-83, 298-307).
558 Kwiam was described by Walter Nona in his Akiba evidence as one of the “fighting warriors” from Mabuiag, and Mr Nona later in his evidence tells one of the stories about Kwiam, which on his evidence discloses how the three reefs south of Warral came to have Badu names.
559 Later in his report, when discussing how rights in land are traditionally acquired and passed on, Dr Murphy expresses this view:
The abstract question of how somebody comes to own land is most often answered by an assertion that sons inherit land from their fathers. This is considered the strongest of grounds on which a claim of ownership can be substantiated.
…
In terms of general principles of land ownership it should be noted that there are several types of rights in land, and that a person with full ownership rights may vest limited rights in the land while still retaining ownership.
For example, a landowner may give permission for somebody to garden on his or her land. While the land is being used for this purpose the right to garden on that piece of land remains with the person to whom it was given, but when the land is no longer used for gardening full ownership is commonly said to be retained by the original landowner. Similarly, a person may be given land on which to reside, and while they remain living on the land they have the right to stay there. If they leave however, the land is said to be resumed by the original owner. This right to reside on land is transferable to the descendants of the person originally given it. There are also some instances where full ownership of land is said to have been given by one family to another.
560 Dr Murphy was of course speaking of rights in land on an inhabited, ‘home’ island. Nevertheless, neither in this report, nor in his report for this proceeding, nor in his oral evidence, did Dr Murphy explain that this practice of retaining ownership but permitting use by another was inapplicable to uninhabited islands such as Warral and Ului.
561 Again on the topic of gardens, later in his report Dr Murphy returns to their importance:
There have been gardens on Badu for a very long time, and there still are. With access now to store goods, the people of Badu no longer depend on garden foods and therefore do not grow them in the quantities that they once did. Most households have some garden plants near their house, and some people have more extensive gardens away from their houses. Knowledge about gardening has been passed down through the generations and includes land management techniques for efficient and sustainable exploitation of land and prevention of degradation. For example, crops are not grown continuously in the same place, the land being left fallow between crops in order to regenerate.
The right to make a garden on any particular area belongs to the owners of that land. Permission may be and sometimes is given by an owner to another person to garden on the owner’s land.
(Emphasis added.)
562 In contrast, in this proceeding Dr Murphy sought to downplay the importance of gardens, which was a key theme of the case of the Badulgal respondents.
563 Dr Murphy expresses the following opinion about how people came to settle on Badu:
It is possible that there were populations of people at Badu long before the ancestors of the current population migrated from Mabuiag. For the purpose of their native title claim however this is largely irrelevant, for it is well known by Badulgal themselves in their oral history, as well as in the written historical record, that their own ancestors were at Badu long before the assertion of sovereignty by the British Crown in 1872.
564 The settlement of Badu, however long before colonisation it occurred, but including the settlement of it pre-colonisation by people from Mabuiag, illustrates in my opinion that, in terms of the way traditional law and custom allocated rights and interests in land before colonisation, what was at work was more than mere use. Rather, rights in land came through more enduring forms of settlement – establishing a more contiguous occupation of an island, and once that was established, the island could properly be described as belonging to those who had occupied it in that more enduring and contiguous way. Of course, the differences between ‘home’ islands and other islands must be recognised. But nevertheless, there is a consistency in these accounts of how parts of the island of Badu came to be recognised as belonging to certain family groups of people pre-colonisation that resonates with the evidence of Badulgal about Warral and Ului, both in this proceeding and in Akiba. Connections to particular land became intergenerational and enduring.
565 The population size of Badu pre-colonisation was, certainly in modern terms, estimated to be relatively small. Dr Murphy states:
On population numbers, Mullins (1995:234; fn64) writes ‘there are no early figures for Badu but it is unlikely the population exceeded 200 before the measles epidemic [of 1875]; in 1907 it was a little over 200 (Evidence of F. Walker to 1908 Royal Commission, p.206.)’. Mullins (1992) considers three sets of population estimates of Torres Strait prior to circa 1871 — those of Beckett (1972), Harris (1979) and Beckett (1987). He concludes that the population of Badu was 150-200 and Mabuiag was 300.
566 Later in his report, Dr Murphy states that Dr Beckett, working in the 1950s and 1960s, described the Badulgal as comprising only 25 families. Population size has at least one kind of probative significance in assessing the current evidence. The older Badulgal witnesses in Akiba, especially Walter Nona and Tom Jack Baira, when they were describing what they observed and saw from their own elders, were likely to be describing those individuals who were the key elders in what was in the late 19th century a very numerically small community. Growing up and being part of a numerically small community of that nature, it is unlikely that there were people whose traditional knowledge was not familiar to those Akiba witnesses. If there were contrasting views in a traditional sense about how rights in uninhabited islands and the sea were acquired, it is likely these witnesses would have volunteered it.
567 While in his oral evidence in this proceeding Dr Murphy sought to distance the conduct of warfare pre-colonisation from any connection to the acquisition of rights and interests in land, and to say that there was no feature of pre-colonial Western Torres Strait traditional law and custom that included conquest as a way of acquiring territory, in his 2000 Badu report, Dr Murphy certainly did recognise warfare as a traditional and customary way of defending territory:
Badulgal before the Coming of the Light had to maintain their territorial integrity by force of arms. There was an ever-present threat of attack by outsiders, and the alliance with the people from Mabuiag served to strengthen the defences of both communities. There is no longer a need for defence against raiding warriors since headhunting practices have ceased in the region, but the right to decide who is to be allowed to enter onto and remain on the island is maintained in accordance with traditional law and custom.
568 Specifically, this opinion has some relevance to the factual debates around the significance of the pre-colonisation conduct of Badulgal in relation to a European ship wrecked off Ului.
569 There are two source reports of relevance to Mua: the 1998 connection report of Fiona Powell (later, Dr Powell), relied on for the Mua consent determination, and Dr Hitchcock’s 2005 report entitled “Mua Uninhabited Islands”, used for the consent determination of islands in which Mualgal hold native title alone. In his 2005 report for the Mua islands claim, Dr Hitchcock acknowledges:
However, it is Powell’s (1998) work in support of the Mua claim that has contributed most to our understanding of the Mualgal.
570 In the executive summary of her 1998 report, Dr Powell gives an overall picture of the inhabitants of Mua prior to and after colonisation:
Official records and oral histories describe how Mua was populated in the last century by indigenous people who were agricultural fisherfolk. They lived in small villages along the coast and in the interior where they had extensive gardens; and shifted residence from coast to interior according to the agricultural calend[a]r. In addition, these people travelled to surrounding islands for social, cultural and political reasons. They had a diverse economy, based on shifting subsistence agriculture, freshwater, coastal and deep sea fishing and hunting. The island was divided into broad territorial divisions, each inhabited by clan or buai groups who maintained permanent villages and well established gardening areas. The clans were connected to each other and to people on other islands by a complex web of kinship, trading and exchange relationships. The clans were exogamous, and polygyny was permitted, reflecting the wealth and status of men.
Children and women were part of an exchange system which enabled clans to form lasting alliances with more distant groups. A rich cosmology connected the Mualgal with their surroundings, and linked them to the historical past, as well as the continuing spiritual present. Parts of the landscape were attributed with cosmological powers, some topographical features were the manifestations of totemic and legendary beings.
In the last century, the Mualgal were involved in internecine warfare with the neighbouring islands of Badu and Mabuiag. This warfare continued over several generations with the population becoming severely depleted. The advent of European missionary and commercial ventures into the region ended these hostilities.
By the early 1870s the Mualgal and their warring island neighbours of Badu and Mabuiag were under the control of the London Missionary Society teachers, as well participating in European beche-de-mer and pearl shelling industries.
Around 1905, a small group of Pacific Islanders was given permission by a senior Mualgal man, Anu Namai, to stay on the east coast at a place called Wag. In 1908, the Anglican Church began a small mission at Wag for Pacific Island workers who were exempt from deportation. A reserve for Pacific Islanders on Mua of 500 acres was gazetted in 1908, and the community became known as St Paul’s Anglican Mission. A larger reserve of 3800 acres was gazetted shortly after in 1910. The rest of the island was declared a reserve in 1912.
The indigenous Mualgal continued to live on Mua, in villages outside the Pacific Island reserve area. Eventually, under encouragement from the Anglican authorities, they congregated in a village on the western coast, known as Adam/Poid. In 1922, the population of this village was augmented overnight with the relocation to Mua of the indigenous people of Hammond Island, who had been forcibly removed from Hammond Island. During World War II the people of Adam/Poid were advised to abandon their village because of its unhealthy environment. Many deaths had occurred and there were fears that the water supply had been contaminated. For a time, the Mualgal lived in small bush camps. Eventually, they resettled at a new village site on the south-west coast at Arkai. The new village was named Kubin, which is where most of the Mualgal in Torres Strait live today.
571 Dr Powell gives a description of three different communities on Mua: the traditional Mualgal, whose base on the island is Kubin; those descended from Pacific islands, whom Dr Powell explains Mualgal call “historical people” and whose base is at St Paul’s on Mua; and those Dr Powell calls the “Hammond Island People”: namely, the Kaurareg People. This is how Dr Powell describes the “Hammond Island People”:
In addition to the people of Pacific Island descent, the Mua population contains a significant group of people whose ancestors came from Hammond Island. As will be described below, this group has become closely linked to the Mualgal. Members of each consider that both are part of the Kaurareg peoples. Like the Mualgal, the older members of the Hammond Island group speak a dialectical variant of Kala Lagaw Ya. As one Kubin Elder explained: “same language, but different tune”.
Also, like the Mualgal, they use Island Creole as a general lingua franca. After World War II ended, some Hammond Island people began to move back to the inner Kaurareg islands. Many of them have settled on Horn and Thursday Island. Although their forebears belonged to islands close to the mainland, the Hammond Island group are not considered by the Mualgal to be historical people. Before their resettlement on Mua, the Hammond Islanders were linked to the Mualgal by kinship and traditional socio-economic alliances. After their removal to Mua, they were adopted into the Poid community. This adoption, and the consequent high incidence of intermarriage between the Hammond Islanders and the Poid Mualgal that followed, further cemented these bonds between these two groups so that they became a single community,
572 Later in the report, Dr Powell expresses this opinion:
From ethnographic and historical information during the pre-colonial and early colonial period the Mualgal had closer relations based on intermarriage with the southerly Muralag and other Kaurareg people than with any other island groups in Torres Strait. There was some trade and intermarriage between people from Mua and people from Badu and Mabuiag, but this was not as frequent as marriages with Kaurareg persons.
(Footnotes omitted.)
573 The source given for this is Haddon vol 5, 1904:61. Dr Powell repeats this theme a little later in her report:
This resettling [of Kaurareg People] has had long term social consequences. Adam became known as Poid or Adam/Poid and two formerly autonomous indigenous groups were through administrative intervention, physically, culturally and spiritually united. The Hammond Islanders were baptised into the Poid congregation. Intermarriage between the two groups occurred to the extent that the two became so closely connected that today they consider themselves part of the larger Kaurareg group. As one Mualgal said, “after 1921, the line between us became invisible”. Mualgal people today can trace kinship connections to ancestors who were inhabitants of either Mua or one of the Kaurareg islands.
574 Dr Powell also includes gardens as an important aspect of pre-colonisation times on Mua:
Oral histories describe how, in the first half of the last century, Mua contained many small villages. There was much gardening along the coast and in the interior of the island, using shifting cultivation techniques. In addition, people farmed marine resources intensely. Fish were trapped around the coast, shellfish regularly gathered, and dugong, turtle and larger fish hunted.
575 Later, Dr Powell expresses the opinion that:
Land, especially for gardening plots, has always been particularly important to the Mualgal.
576 She expands on the gardening practices of Mualgal a little later:
Until relatively recently, many people maintained garden plots outside the immediate vicinity of Kubin Village. Gardening was a means of subsistence until there came a steady cash flow from employment and social security benefits. Even after World War II, when the Mualgal were resettled at Kubin, people travelled out from the new village site to work their gardens in the country some kilometres away. Some older and middle aged people continue to garden, but have reduced their plot sizes and the distance of these from the main settlement of Kuhin. Traditional large garden areas are regularly visited on camping and hunting trips, and the crops of these - bananas, mangos, yams, cassava, are gathered. “Wild foods” such as four varieties of yams; many native fruits and edible berries; coconuts, wild bananas and mangoes can be found in the bush, near Kubin and St Paul’s settlements. They are the remains of temporarily abandoned settlements and gardens.
Older people have passed on their horticultural knowledge to their younger family members. Traditional agricultural techniques are still employed. Like their forefathers, the Mualgal regularly burn off in September in order to promote new growth and clear areas for gardening. Older people plant in plots nearer to the main settlements. Some of them have plans to resume working their forefathers’ traditional areas after the Native Title process has concluded. A significant number of these sites and their tenure histories were recorded during fieldwork.
577 Of the system of land ownership, Dr Powell states:
The traditional system of land tenure on Mua is considered to have been similar to that recorded on Mabuiag where the Haddon Expedition noted that:
“it seems to have been universally the custom that before the conception of restricted property in land was established, a local group had collecting rights over a well-defined area in which all the members of the group were at liberty to collect vegetable food or hunt ..... In Mabuiag there were buui or clans that held land in group ownership; they constituted more or less as corporate groups and even had recognised heads; the distinction between land owned by a family and that owned by a buui is no longer clear...”
During the early contact period, with the rapid population depletion that accompanied the measles epidemic of 1875, this clan organisation was seriously undermined, with some clans being reduced to single families, or becoming extinct. In these cases, clan lands would come under the care of the closest surviving relatives. It is probably through such developments that much of the land of Mua by the beginning of this century came in the custodianship of its comparatively small population, which in the eastern region was under the stewardship of Anu Namai. In these circumstances, certain sections of the island became associated with specific individuals, who settled on them and established and maintained gardens. These areas have been inherited by their sons or closest male and or female relatives.
(Original emphasis.)
578 Dr Powell describes in some detail the warfare and feuding between the people of Badu and Mabuiag on the one hand and the Mualgal on the other, attributing it to:
several [reasons], including the kidnapping of women, the illegal taking of garden produce and revenge for the killing of relatives.
579 Seven years later, Dr Hitchcock provided a report which again, devoid of the heat and contest of the present disputes, undertook a focused examination of Mualgal traditional law and custom as it related to the uninhibited islands off Mua.
580 In his introduction, Dr Hitchcock describes the subject of his connection report in this way:
The present claim is over a number of offshore islands located to the north, south and west of Mua, in which the Mualgal, and Mualgal alone, possess exclusive native title rights and interests. These rights and interests are recognised by all other Torres Strait Islanders.
(Emphasis added.)
581 Later in the report, Dr Hitchcock describes the islands in the claim area in the following way:
The claim islands are located off the north, south and west coast of Mua, in western Torres Strait. They are small rocky features or boulder-strewn granitic islets, which in some cases support windswept vegetation. Several of the larger islets have small sandy beaches and fringing reefs. The claim is concerned only with those areas of claim area above the high water mark, and is a combined total area of approximately 38 hectares.
582 The islands in the Mualgal islands determination which were the subject of Dr Hitchcock’s report are: Murbayl, Muknab, Kulbi, Zagarsup, Iem, Sarbi, Kapril and Tarpural Kula. Dr Hitchcock describes the islands (which he refers to as “small rocky features or boulder-strewn granitic islets”) in his report, noting many had resources such as turtle and seabird eggs, some had camping places, and some had sandy beaches. Some are described as “small rock[s]”. The largest is Iem, at 12.18 hectares. Murbayl is 3.5 hectares, and Muknab less than a hectare. He later notes there are no potable water sources on any of the islands so that it is unlikely they have ever been permanently inhabited.
583 In describing some of the pre-colonisation observations (including by reference to Barbara Thomson), Dr Hitchcock says:
Of the places claimed here, Murbayl lay directly on the route between Mua and Muralag of the Kaurareg. Mualgal informants state that today that, in addition to their use of Murbayl as a camping place from which to exploit its reef, this island is still a staging point for trips, now undertaken by dinghy, between Kubin village and Thursday Island.
(Emphasis added.)
584 This is important evidence. It confirms, and is consistent with, what I have described earlier in these reasons from the Akiba lay evidence about the route taken to get to the Kaurareg islands by Mualgal – namely a route that went south east from their home island; rather than south west towards Warral. This was not a feature of the applicant’s expert evidence given in the present proceeding. Some Mualgal witnesses gave some evidence about the use of this route. For example, Pastor Kaitap said:
MR BLOWES: And is there some place - no, we’re talking about travelling to - I’m just talking about travelling from Kubin to TI along the front side of Warral.
OPETA KAITAP: Yeah.
MR BLOWES: Is there any place where you can look back and see Kubin?
OPETA KAITAP: Well, there’s Murbayl in front of us, Murbayl, and when you’re travelling to TI there’s Murbayl, and looking back.
MR BLOWES: So from Murbayl you can see Kubin.
OPETA KAITAP: See Kubin, yeah.
585 Mrs Adidi gave the following evidence:
MR McAVOY: Mrs Adidi, lots of islands in this area have mangroves, don’t they?
NAZARETH ADIDI: Well, we used to go to Murbayl, the same. They got plenty of thupmul there.
MR McAVOY: Mrs Adidi, what age do you say you were when you went there and saw those mangroves?
NAZARETH ADIDI: About eight.
MR McAVOY: How old?
NAZARETH ADIDI: Eight year old.
MR McAVOY: Eight year old?
NAZARETH ADIDI: Yes.
586 Like Dr Powell before him, and indeed referring to her work, Dr Hitchcock notes the longstanding relationship between Mualgal and Kaurareg, implying it was a pre-colonisation relationship:
The Kaurareg, as allies of the Mualgal, had a long-standing tradition of cooperation and exchange of women and goods. These links were made ever stronger with the two groups now living together at Mua. Intermarriage was common, with the result that many people have Mualgal and Kaurareg ancestors. (Powell 1998:36-37).
587 As others have, Dr Hitchcock emphasises the importance of the oral tradition in understanding which peoples have native title to uninhibited islands:
It should also be noted that until recently, there existed little ethnographic and historical documentation about uninhabited islands in Torres Strait. This means that oral testimony from Torres Strait Islanders, as well as inferences based on what is known and documented about Torres Strait Islander society, culture and history - in this instance, what is known and documented about the society, culture and history of Mua - forms a key component of evidence in support of claims for recognition of native title over such areas. Information relating to uninhabited islands elsewhere in Torres Strait-such as that contained in native title connection reports for the Aureed (Lahn 2000), Garboi (Fuary 2005a), Sassie (Fuary 2005b), Yarpar and Uttu (Fuary 2005c) and Buru and Warul Kawa (Hitchcock 2005) native title claims, may likewise form the basis of inferences about the present claim area.
588 Dr Hitchcock describes the likely use of the uninhabited Mualgal islands pre-colonisation as being for subsistence purposes, and as having likely been seasonal, depending on the monsoon and when eggs and the like were available on them. He refers to Haddon’s general observations about use of uninhabited islands for such purposes, as well as to some accounts by Mualgal elders, and:
observations of camping shelters and the remains of meals of turtle, made by members of William Bligh’s crew at Kulbi in 1792, in particular by Matthew Flinders (Lee 1920:193-196).
589 Dr Hitchcock includes a useful description of the practice of ‘sharing’, as understood traditionally, which is consistent with Finn J’s findings in Akiba, and my own conclusions:
Islanders consistently invoke the concept of Ailan Pasin when discussing traditional land and sea tenure in Torres Strait. In these instances it refers to the assertion and expected acknowledgement of proprietary rights in lands and seas and the extension of use-rights to others who are not members of the group (glossed as ‘sharing’). Sharing is reciprocal, has a moral force, and is also highly adaptive, as those who give help to others, will themselves be assisted at a later date. The reciprocal nature of this was highlighted by Mualgal elder Joshua Nawie in the following terms:
if they come and ask you, kapu paua .... Good way, you come and ask, they give you good. We give them [i.e., in turn]. Good way, kapu paua (pers. comm., 23 April 2005).
Another key element of Ailan Pasin is the expectation of owners that those with secondary or use-rights in land will either ask permission to visit a particular island, voice their intention to visit it, or voice the fact that they have already done so at a later date (Oza Bosen, pers. comm., 5 April 2004; Joshua Nawie, pers. comm., 23 April 2005). All three practices are customary forms of permission, and are always highlighted by claimants as embodying ‘respect’, which is a critical component of Torres Strait Islander forms of interaction, whereby the native title rights and interest of owners are acknowledged and upheld by others. Expectations with regard to the forms of permission required are contingent on kinship; it is usually the case that those with distant, or no kin links to a community, must seek formal, prior approval, while those socially closer may utilise notification.
With respect to the claim area, Mualgal elders Joshua Nawie and Fr John Manas stated that St Pauls residents were welcome to use the islands in accordance with Ailan Pasin, on account of the long-standing historical links between their communities. However, it was made quite clear that these were use-rights only. Kaurareg people would similarly be allowed to exercise use-rights upon the claim area in the same way, given the close traditional and historical relationship between their peoples (see Powell 1998:37,69).
590 This passage reflects a difference between use rights and ownership rights, a matter emphasised by the State, and by Finn J in Akiba. For these Mualgal islands, despite the very close relationship between Mualgal and Kaurareg, Dr Hitchcock is very clearly locating Kaurareg as having only use rights, in other words, permissive use rights dependent on Mualgal permission.
591 In my opinion, as I explain below, at its highest, this is the kind of relationship that Kaurareg People in current times have with Warral, and less obviously so with Ului. Pre-colonisation, I am not persuaded it is more likely than not that they had a right of this kind to any greater extent than any other island community in the Torres Strait.
592 After quoting a passage from Dr Beckett, Dr Hitchcock expressed the following view:
To find in his assertion that ‘control was nominal’ an inability to assert exclusive possession would be to misunderstand Torres Strait Islander forms of land ownership and associated acceptable practice. The ‘right to include’, to engage in sharing and reciprocity, was and continues to be a fundamental part of Torres Strait Islander life. It might be thought that in the case of uninhabited offshore islands, perhaps only irregularly visited, and hence not closely monitored, that it would be impossible to enforce permission or exclusion. That is not necessary. Gud Pasin is an expectation of all; to uphold it, and grant permission, entry and use to others, is to in turn be granted access and secondary rights to a wider territorial domain (i.e. range) than one’s own estate. Access to other resources in this way was necessary to survival in Torres Strait (Barham 2000; Harris 1979).
593 Again this opinion is of some weight to the resolution of the separate questions. Warral and Ului are in the same position as these Mualgal islands – uninhabited, unable to be “closely monitored” by their owners. This explanation by Dr Hitchcock, not given in such clear terms in his evidence in this proceeding, further supports my view of the evidence as a whole, which is that the Kaurareg People have post-colonisation use rights over Warral, and possibly also Ului, stemming from gud pasin, from the overlaid, wider Christian notions of ‘sharing’, and the now much closer family relationships between all Western Islanders.
594 While, as I find below, the current lay evidence suggests there is less acknowledgment of any need to ask permission, I find that is more a product of the uncertain and disputed native title situation than anything else. The contrast with the Akiba evidence illustrates this.
595 In this 2005 report, Dr Hitchcock uses an informant’s broad description to support Mualgal ownership of the claimed islands:
And people all time go, Mua people all time go and come, go and come. Exactly. Them island lo [belong to] Mua ... We all, me myself too, we all sail in small boats, small dinghies, sailing boat [to those islands]. Just for picnic ground, fishing ground (Joshua Nawie, pers. comm., 23 April 2005).
(Emphasis added.)
596 Then, on further inquiry this is explained by informants by reference to broadly two categories of facts – first, ancestral information, sometimes during visits to the islands or when out at sea, sometimes in stories told on home islands; and second, accounts of visits and use, which may or may not be distinguishable in terms of the activities during visits from the activities of those Dr Hitchcock calls “secondary rights holders”:
Furthermore, land tenure rights and responsibilities are transmitted within and between generations through oral instruction. Thus may occur through biographical narratives, genealogies, stories, myths and legends, or occur in the exercise of those rights. For example, young men will accompany older individuals on visits to the claim islands for subsistence purposes, and in so doing learn what their rights, obligations and responsibilities are in relation to the claim area.
People inherit knowledge from their parents and grandparents about ownership, and the responsibilities that this entails. As Powell (1998:72) notes, ‘with their knowledge and wisdom, they can explain the cultural significance and history of the island and its population to younger members’.
597 The point is that, in this 2005 report, these broad assertions or descriptions – ‘x island belongs to Mualgal’ – are given some weight by Dr Hitchcock. Yet, together with the applicant’s other two experts, when lay witnesses in the separate question hearing gave such broad descriptions (usually limited to their own people being the owners of Warral and Ului), the experts encouraged the Court not to accept that evidence at face value, despite it usually being accompanied by the same kind of further information I have set out immediately above. The difference in approach is a further example of why I have been careful about the evidence of the applicant’s experts in this proceeding.
598 There are two connection reports which I have found useful and informative: Mr Southon’s connection report from 1997 for some of the Kaurareg home islands and Mr Wood’s 2015 report about Kaurareg interests in Warral and Ului, produced shortly after the mediation for the purposes of the shared ownership claim.
599 Mr Southon’s report for the Kaurareg claim over Muralag, Dumaralag, Yata, Mipalag, Zuna and Ngurapai was prepared in January 1997. The report was prepared less than a year after the Kaurareg claims were filed. Mr Southon’s report was prepared approximately 11 years before Kaurareg made a native title claim over Warral and Ului (in 2008).
600 Understandably, Mr Southon’s report commences, in its summary and then in its introductory part, with significant emphasis on the forced displacement of the Kaurareg People since colonisation, a feature of the lives of many generations of Kaurareg People not endured to the same extent by other groups in the Torres Strait region:
The original native title holders to Muralag, Ngurupai and Zuna were moved off Muralag in the 1880’s and 1890’s, as that island became the focus of the European pearl-shelling industry in the Torres Strait. They were moved to Kirriri, an island which was part of Kaurareg country.
In 1922, the Kaurareg were removed from Kiriri to Moa, an island outside Kaurareg country, 40 kilometres to the north.
The Kaurareg lived on Moa for the next 25 years. Some of them began to move back to Kaurareg country - to Ngurupai - in 1947.
…
The Kaurareg people bitterly resisted their removal from their country to that of their neighbours on Moa in 1922; this can be seen in a contemporary press report (The Queenslander, March 11, 1922) as well as official communications relating to the event.
Throughout their 25 year sojourn on Moa, the Kaurareg maintained a fervent desire to return to their country. This was despite Government regulations which prevented them from making visits to the Prince of Wales group of islands and which attempted to assimilate them to the Moa population by forbidding them to speak the Kaurareg language. A Government school teacher on Moa recorded in 1936 that the Kaurareg people’s desire to return to Hammond Island was so strong that it was “their idea of the Millennium”. During this period the Kaurareg kept alive the traditions, spiritual links and subsistence knowledge of their lands and surrounding seas.
In 1947 the Kaurareg defied Government authorities and went back to Horn Island. They lived on the island without any formal tenure recognized by the Government. They established a thriving community on the Island, in the face of Government opposition.
601 Mr Southon has a section in his report entitled “Extent of territory”, where he records the “general consensus” amongst early observers that Kaurareg occupied the group of islands off the tip of Cape York. He does not in this section refer to any islands further north into the Torres Strait. He expresses the view that Kaurareg moved seasonally between their home islands, following the availability of food sources, camping for some of the wetter months in one place. The source for much of Mr Southon’s opinions is the account given by Barbara Thompson. Further in his report, Mr Southon turns to land tenure, noting the Kaurareg “were not cultivators” (my emphasis). Mr Southon then explains that canoes were of great importance to Kaurareg, and that they obtained their hulls from islanders to the north, who in turn obtained them from Papua. He describes Kaurareg as part of an “extensive trade network”:
The Kaurareg were not cultivators. Though Barbara Thompson does record that some Kaurareg had yam gardens, Moore concludes from her evidence that “there was no general horticulture” (Moore 1979:279). Neither were the Kaurareg land hunters; Moore notes that none of the “authorities mention any land hunting of large game by the Kaurareg and it seems likely that the larger marsupials were not present in the Prince of Wales group” (1979:276). The Kaurareg, like other Islanders, lived predominantly on the foreshores. It was on the foreshores that they received guests from other islands. Land ownership along the foreshores was probably much more clearly defined, and much more based on ownership of economic resources, than was ownership of the interior.
A corollary of the absence of horticulture and hunting amongst the Kaurareg is the importance of trade in their subsistence pattern. Canoes were of great importance to the Kaurareg, and their ownership was probably as important as the ownership of land (Moore states that information on canoe inheritance is lacking for the Kaurareg (1979:262) but notes that Haddon recorded that on Maubiag canoes were inherited by all sons, the eldest son being the captain of the canoe).
Kaurareg obtained their canoe hulls from other Islanders to the north, who in turn obtained them from Papua. The Kaurareg were part of an extensive trade network. Indeed they were strategically positioned, since their islands lay on the direct route of foreign shipping (the Prince of Wales channel and Endeavour Strait); from the numerous shipwrecks that occurred they were able to obtain iron (nails from the hulls) which became an important item in the trade network between Australia and Papua.
602 Mr Southon goes on to describe the two “quite different models” of land ownership from the early sources:
In these accounts of Kaurareg land tenure there are two quite different models of ownership: Haddon emphasizes clan-based ownership (though he does make a reference to individual ownership [vol V:284 fn]), while Barbara Thompson’s account emphasizes individual ownership. It is not clear how these two different models are reconcilable, or which of the two is more accurate. However, it should be noted that Haddon was a trained anthropologist while Barbara Thompson was not.
603 In the next section entitled “relationships with neighbouring tribes” and consistently with the other connection reports to which I have referred, Mr Southon describes the “intermittently hostile” relationships Kaurareg had with their neighbours, except the Kulkulgal of Naghir (to the north east), and he recites a history of those hostilities, and attempts at peace. I reproduce accounts of that history elsewhere in these reasons. However, Mr Southon draws a slightly different conclusion:
The Kaurareg appealed to the Europeans in the newly established settlement at Somerset to assist them in brokering a peace with their enemies to the north, “the much dreaded Bardoolegas” (Badulaig). On 6th October 1867, a large party, consisting of the missionaries Kennett, Jagg, Ralph, two visiting naturalists, and about forty or fifty Gudang, Kaurareg, Kulkalaig, and Moa-It, left Muralag bound for Badu (Mulgrave Island). They stopped at Waibene (Thursday Island) on the evening of the 6th where they heard news that a large party of Badulaig had left Badu on its way to Keriri. The next day the Muralag party left Waibene and crossed over to Keriri where, amid much apprehension on both sides, the two parties met. On the morning of 7th October “peace was concluded in a formal manner” (Kennett op. cit. :248) between the two parties, the Kaurareg and the Badulaig.
This incident clearly shows that the Kaurareg were regarded as the rightful owners of the Prince of Wales group of islands, not only by the Badulaig with whom they made the peace agreement, but also by the tribes that accompanied them and witnessed the peace agreement: the Gudang (from the mainland), Kulkalaig (from Naghir or Mt. Ernest Island), and Moa-It (from Moa).
604 For the purposes of the present proceeding, what is notable is that again there is no mention by Mr Southon, or by the sources he relies upon, of any Kaurareg country further to the north than this group of home islands. Nor is this account framed as if, were the Kaurareg to sail north up to Badu, and on their way past Warral and Ului, they would still be travelling in their own country. If anything, this account suggests that the Badulgal came down, out of their country, and into Kaurareg country.
605 Mr Southon then charts the series of forced removals and relocations to which the Kaurareg were subjected by Europeans, including their removal to Mua, and the enduring desire of the Kaurareg People to return to their own country, which persisted against all the oppression they underwent. Mr Southon relates the particularly famous incident in 1950 where Kaurareg elders who had returned from Mua to Ngurapai against the government’s will and were again being told they could not stay there all greeted the then Departmental officer in charge (one Killoran) by standing in silence on one leg, as Mr Southon describes it:
in imitation of the Kaurareg warrior and culture hero Waubin … a strong and eloquent statement of their spiritual connection to the land.
606 This is a particularly vivid example of the prominence of the Waubin story in the traditional law and custom of Kaurareg People, a matter I return to below.
607 Further on in his report under the heading “Sea tenure”, and then under the heading “Extent of territory”, Mr Southon gives some descriptions of Kaurareg territory in the sea and on land that has relevance to the present proceeding. It is a lengthy extract but should be reproduced in full:
(iv) Sea tenure
In addition to ownership of land, Kaurareg also have well developed notions of ownership of the sea. Indeed, ownership of land is predicated upon ownership of the sea, since the Kaurareg regard all those islands enclosed by Waubinin Malu or the Sea of Waubin, as belonging to them. Kaurareg ownership of the marine environment can only be understood in the context of their beliefs about ancestral spirits and the supernatural order. Central to Kaurareg marine tenure is the mythological figure Waubin, whose exploits provide the charter for Kaurareg tenure of both land and sea. Waubin was a warrior and a giant who came from Central Australia to the island of Muralag which was already inhabited by a number of other mythological figures, also warriors. Waubin either killed these individuals or chased them out to sea, acquiring their wives in the process. Waubin was turned into stone and his metamorphosed body lies off the northeast end of Kirriri as a rock named Waubin (Hammond Rock). There, as an outpost of Kirriri, Waubin protects the islands to the south from intruders. He sends a strong current through the Prince of Wales channel which is said to discourage outsiders from venturing further south into the Kaurareg area. This deep channel, which runs along the north side of Kirriri, is known as Waubinin Malu, or ‘The Sea of Waubin’. Billy Wasaga explained the role of Waubin in the following way:
“Ship not supposed to come in through that water, this channel, that’s why they call him, this channel, Waubinin Malu, that’s mean ‘Sea of Waubin’, Waubin was out there, that’s why he went out over to that Hammond Island other side and walk out to the reef, why was he doing that? Because he don’t want nobody to come to the shore of that island, to have Muralag island, area.”.
Though Waubinin Malu refers specifically to this channel on the north side of Kirriri, Kaurareg people also use the term in a more general sense to refer to the whole Kaurareg sea territory. During his battle with the warriors on Muralag, Waubin encountered Badanae - a warrior of very small stature - who darted between Waubin’s legs and sliced off his right leg with the bamboo knife upi (Sharp 1992:105). The blood from Waubin’s leg was carried by the currents throughout the waters surrounding the Prince of Wales group of islands. Wherever the blood from Waubin’s leg was taken became Waubin’s territory; thus it is that the whole sea enclosing the Kaurareg islands is called Waubinin Malu.
Kaurareg do not have a concept of a clearly-defined boundary around Waubinin Malu, but there are certain points that act as markers, defining the limits of the Sea of Waubin. In the north the Kaurareg sea extend[s] as far as the channel between Warrar (Hawkesbury Island) and Dollar Reef (Dollar reef belonged to the people of Moa).
On the south side of Hawkesbury Island is a rock which represents Pitulai, a warrior who fled Muralag Island, driven by the ever-jealous Waubin. On the west side of the island lies another rock which represents Ibibin, another warrior who fled Muralag for the same reason. These two mythological figures are said to mark the northern extent of the Kaurareg sea territory:
He (Waubin) sent them (Pitulai and Ibibin) out to the island, they in that place, that’s identification for Muralag ... that Pitulai and Ibibin. (Billy Wasaga, Kaurareg tribal elder).
In the west, Kaurareg sea extends as far as Booby Island where there is a rock that represents Ngiangu, another warrior who was chased off Muralag by Waubin. Billy Wasaga described the role of Ngiangu as a boundary marker:
That what he stand there for, stop there, that’s Kaurareg district, let the other people know that as a far as boundary, you know, for this way boundary. (Billy Wasaga, Kaurareg tribal elder).
The southern boundary of Waubinin Malu is less clear, perhaps reflecting the fact that in pre-contact times the Kaurareg had much better relations with their southern neighbours than with the peoples to the north (Singe 1979:164). For example, the turtle hunting grounds on the islands south of Muralag, though they belonged to the Kaurareg, were shared with the Gudang people of the mainland.
Though Kaurareg conceive of their boundary as a number of significant sites rather than a line, Kaurareg say that their ancestors always knew whether or not they were in their own sea territory or that of a neighbour. For example, Billy Wasaga stated that in pre-contact times Kaurareg would not fish or hunt north of Warrar (Hawkesbury Island), and would not tolerate anyone from the north who fished or hunted south of Warrar.
Kaurareg people state that the waters within the Kaurareg sea territory were regarded as a common resource to be shared by all Kaurareg, but the institution of gangarr shows that on an informal level there was (and is) some kind of individual tenure of the sea. A gangarr is a fishing spot where a particular individual regularly fishes. Some gangarr are a closely guarded secret and are handed down to a man by his father, together with a spell or magic formula that ensures good fishing. A further example of marine tenure below the level of Waubinin Malu was the ownership of stone fish-traps. There were at least two stone fish-traps in Kaurareg waters: one in the Bay of Siziri on the north side of Kirriri and another at Tani butu (butu means ‘beach’) on the south side of Kirriri.
(Emphasis added.)
608 This account is also not consistent with the applicant’s primary case in this proceeding about the source of Kaurareg native title in uninhabited islands and the sea.
609 A little further on in his report, under the heading “Spiritual connections with totems and culture heroes”, Mr Southon discusses the Waubin narrative again. He states:
Kaurareg people find their strongest spiritual connection with the culture hero Waubin. As senior elder Billy Wasaga stated to the author, “We are Waubins”. This connection to Waubin was expressed most graphically in the 1965 protest against the proposed removal from Horn Island, when the Manager of the Department of Native Affairs, P. J. Killoran and other DNA representatives were met by Kaurareg men standing silently on one leg in imitation of Waubin, who lost his right leg in battle with the mythological figure Badanae
…
As with other warriors he encountered on Muralag, Waubin chased Kiwain off the island. In his flight from Waubin, Kiwain turned himself into a Shovel-nose Shark (Kaigas) and swam from Long Beach to the northeast Point, where he was metamorphosed into the oblong rock. Billy Wasaga has related the story of Kiwain:
“So he went out that way, long way, Waubin don’t see him no more. AfterWaubin come out from this place called Raba Nguki, he walk around come out to Bada Kut, go all along the beach waiting for them kerrnge. This place, Long Beach, nobody been there then. Other one (Kiwain) went down swimming in the water, turned into Shovelnose Shark, Kaigas, then went swimming and stay under the water, where he (Waubin) don’t see them. Waubin been chasing them because of his woman, he don’t want no one to take his woman away from him.
MS: So who became the Shovel nose Shark?
BW: Kiwain, then he swim along, hide himself, go right up to this Point, Bluefish Point.”
…
Rabau Nguki; a water-hole in the bills behind Yirrki, the only permanent water source on Muralag. Rabau Nguki is the most important sacred site on Muralag; it was the home of the Kaurareg culture hero Waubin. From Rabau Nguki, Waubin set out for Yirrki, Gaibaiyat, Muiarpui, Dak, Yata, and Aiginisan in search of warriors to kill. After defeating Kiwain, Waubin took Kiwain’s wife to Rabau Nguki. The following day, Waubin travelled eastwards and fought with the warrior Badanae, who cut off Waubin’s right leg at the knee. Waubin returned to Rabau Nguki accompanied by his wives, who cared for him there.
…
Haddon records that one of the augud or totems of the Kaurareg was the culture hero Kwoiam who passed through Muralag on his way to Maubiag, which was the focus of his activities (Haddon vol V:80).
Another Kaurareg culture hero is Waubin. Waubin differs from Kwoiam in that he is a uniquely Kaurareg figure, emblematic of Kaurareg identity, whereas Kwoiam is is significant throughout the Torres Strait. Waubin is said to have been the first Kaurareg (Sharp 1992:105). His exploits provide the charter for Kaurareg ownership of land and sea and he is the basis of Kaurareg identity. As Billy Wasaga stated: “We are Waubins (Waubin nin gal)”. In 1950, when the Manager of the Department of Native Affairs-P. J. Killoran - arrived on Ngurupai to inform the Kaurareg of their eviction from the island, he was met by Kaurareg elders standing in silence on one leg, in imitation of the culture hero Waubin - a strong statement of their spiritual connection to the land
Unlike Kwoiam, who left no traces of himself in the landscape, Waubin and the people associated with him were metamorphosed into various physical features. The site Raba Nguki, on Muralag - which is the main mythological site of the Kaurareg people - is the place where Waubin’s wives bathed his wound after his right leg had been cut off by the warrior Badanae. Hammond Rock, off the northeast end of Kirriri represents the body of Waubin, after he fled into the sea and drowned. The wild fig trees that used to grow on top of Hammond Rock (they were cut down to build the light house) were said to be Waubin’s hair. The group of rocks situated off the north coast of Kirriri are said to be the metamorphosed bodies of Waubin’s wives. On the top of a hill at the eastern end of Kirriri is a hole in the ground that represents one of the women accompanying Waubin. Waubin noticed that this young woman was still a virgin and so had sexual intercourse with her at this site. Ron Wasaga said that a vein of quartz running down the hill into the sea represents Waubin’s semen. The weapon that Waubin used in his battles with the various warriors he encountered in the Prince of Wales group of islands was the distinctive Baidamal Baba, a weapon lined with shark teeth. Baidamal Baba takes its name from Baidam, or shark, which was the chief totem or augud of Waubin. Waubin threw this weapon into the sea near Goba Ngaur, a rocky headland of Kirriri, where it became a reef, “its edges sharp and jagged like the teeth of Baidam’s jawbones” (Lawrie 1970:8). Baidamal Baba is today regarded by Kaurareg as an icon of their identity. Billy Wasaga states that the deep channel flowing along the north side of Kirriri is ‘Waubin’s Sea’ or Waubinin Malu.
Spiritual connection with Waubin encompasses all Kaurareg and is not restricted to particular clans; as Ron Wasaga said, Waubin is “just one story for everyone”. Ron added that each Kaurareg person has a ‘personal place’ and a ‘common place’. Someone’s personal place is the place where they live or where they were born; their common place refers to all the Kaurareg islands, to which they are connected by virtue of their spiritual connection to Waubin.
(Emphasis added.)
610 What this material shows very clearly is that in this connection report, Mr Southon is characterising Waubin as a mythical figure, not an ancestor. It is clear that is how his informants explained Waubin to him, and his own opinions reflect that characterisation, including putting the main account of Waubin under “mythology”. Although it is also clear from the earlier parts of his report that Mr Southon’s informants told him, and he accepted, that the Waubin myth was a method by which, traditionally, Kaurareg explained the limits of their sea country. So in that sense I accept and find the Waubin myth is a traditional explanation of Kaurareg rights and interests in sea country radiating away from the Kaurareg home islands, and the uninhabited islands found in that sea country. I explain this in more detail below. For present purposes, the important matter demonstrated by Mr Southon’s comprehensive and careful report is the characterisation of Waubin as a mythological figure.
611 Mr Southon then explains the place of Pithalai in Kaurareg mythology:
Other culture heroes in Kaurareg mythology are Badanae, Ngiamu, Pitulai, lbibin, and Putukain. Ngiamu was defeated by Putukain in a battle on the west coast of Muralag. Putukain defeated Ngiamu in a battle and then told Ngiamu to keep walking out to sea until he was only visible as a dot on the horizon, whereupon Putukain told him to stop. Ngiamu stands there today as Booby Island, guarding Kaurareg territory from the west. Pitulai and lbibin were defeated by Waubin, also on Muralag. Waubin sent Pitulai and lbibin out to Warrar (Hawkesbury Island) to guard Kaurareg territory from the north.
(Emphasis added.)
612 Finally, at the end of the report Mr Southon sets out a list of other islands that he describes as islands that in “pre-contact times” were “owned” by Kaurareg. I infer this is a list gathered from Mr Southon’s then informants. The list of uninhabited islands is as follows:
(*) Meggi Muri (Mt. Adolphus Island)
(*) Kei Muri (Little Adolphus Island)
(*) Ului (West Island)
(*) Warrar (Hawkesbury Island)
(*) Mawai (Wednesday Island)
(*) Tuesday Islets Kudulug
(*) Zuna
(*) Tarilag
Ngiamu (Booby Island)
Dumarilag
Kei Yelubbi (Woody Wallis Island)
Meggi Yelubbi (Red Wallis Islet)
Nelgi (Twin Island)
613 Dadalai is not in this list, but appears in the Kaurareg native title claims, as I explain below. Ului and Warral are by a considerable distance the most northern of the islands in this list. Aside from Warral and Ului, only some of these islands are at the time of these reasons the subject of native title determinations.
614 I turn now to Mr Wood’s 2015 report. It was prepared after the 2015 mediation and for the purpose of advancing the shared ownership claim, while taking into account the three relevant existing native title claims – the Part B Sea Claim and the overlapping Badulgal and Kaurareg applications over Warral and Ului. Mr Wood describes the report as setting out the:
nature and bases of the Kaurareg claim on customary rights and interest[s] in the islands of Warral and Ului and a number of islets, reefs, and surrounding waters including the three large reefs known as Zuguin Maza, Dadatiam Maza, and Giaia Maza.
615 These are the three reefs to the south of Warral, between Warral and the Kaurareg home islands. Mr Wood describes the presenting issues in the following way:
The background to my 2001 and 2003 reports was the Kaurareg people’s decision not to participate in the Torres Strait Regional Seas Claim in favour of pursuing a separate sea claim of their own, leading to a need to determine a southern boundary for the Torres Strait claim. Freely shared access to and use of resources on the Waral islands and adjacent seas by members of the three groups – in something of the character of a commons – were the long standing facts as far as I could see, and was not really contested. However, the three groups were in variable measures of dispute as to whether one of them held root ownership of the area and the others contingent use rights, or whether root ownership was shared. I say variable because there was much less tension between the Kaurareg and Mualgal groups and, I gather from members of the Mualgal, between themselves and the Badhulaig over this question than there was between the Kaurareg and Badhulaig.
616 Then at [9], he repeats some of these opinions:
The Kaurareg have, since the first work I did in relation to their land claim in 1999, asserted root ownership of the Waral islands and waters. However, they also asserted that the Moa community had unfettered use rights, and depending on the context of discussion, that the Badu community had something that ranged between that and permissive use of the area. Their basis for these positions was the history of inter-marriage between the three communities, which under the regional law and customs gives rise to exchange of use rights in each other’s marine estates (inclusive of reefs and islets enclosed by them), and which is a right in the sense that such exchange cannot really be denied. However, there are much fewer intermarriage linkages between the Kaurareg and Badhulaig. Nonetheless, the difference between permissive access and exchange of standing license to use what is effectually a common area seems in my observation a rather thin one, with people varying their interpretation depending on the state of relations or tensions between them. Further underlying this is a society-wide title to the regional seas and a regional ethos that places a high moral value on co-operative tolerance of use and sharing of sea space and resources. The matter really only becomes heated if the issue of root title is raised, conceived of by the Kaurareg – and I think the model is held at least as an abstract one by all three parties – as distinct from these usufruct rights generated by the customary norms of exchange. The Kaurareg together with the two other parties have recently agreed to settle the native title as a joint title.
617 These passages and the opinions they contain are important. First, in respect of these islands (and the reefs) Mr Wood distinguishes between “access” and “root ownership”. That distinction is consistent with the lay evidence in this proceeding, and in Akiba. It is consistent with Finn J’s findings in Akiba, which I am applying in this proceeding. Secondly, Mr Wood identifies the key “tension” as being between Badulgal and Kaurareg, which is consistent with the alignment between Mualgal and Kaurareg disclosed by much of the evidence, and also consistent with what the evidence says about Badulgal and the people of Mabuiag being close to each other, from pre-colonisation times.
618 He then goes on to explain his understanding, I assume as at 2015:
This led to dispute between the latter two as to the basis of shared access which I believe would otherwise not have arisen: the Kaurareg asserted that Badhulaig use was permissive in nature whereas Mualgal shared joint access rights with Kaurareg due to more substantive intermarriage and kinship ties. As I was given to understand from abbreviated accounts from third parties, the Badhulaig position inverted this to assert that root ownership lay with them. By contrast, most Mualgal favored settling the matter as a three-way joint title.
619 Again, this is an important passage. It demonstrates that the application by the Badulgal respondents in 2020 was no new idea, and the position they advanced was a position well-known in 2015: namely, that the islands belonged to Badulgal only. That position was also apparent from the Akiba evidence.
620 In this report, Mr Wood frames the source of Kaurareg rights and interests in the following way (at [10]), and after these passages he expresses his agreement (at [11]) with these matters as the correct basis for Kaurareg rights and interests in the area under consideration:
The bases in regional law and custom on which the Kaurareg base their claims on area B are a combination of ancestral occupation and use of the area, and legitimation of root title by reference to more ancient mythologized occupation. In summary their position is:
(a) The area was part of the Kaurareg pre-colonial marine and outer islet estate, occupied in the sense that it was annually exploited by them in the course of their hunting-gathering seasonal cycle, especially for the native yam and turtle egg resource of the islands and as a base for fishing and marine hunting, while the three reefs Zuguin Maza, Dhadhatiam Maza, and Giaia Maza were their major source of reef resources. Waral and Mukanab were also used as a stopover, safe anchorage, and water source for Kaurareg canoe traffic between Hammond Island and Moa’s south coast;
(b) Living and recently deceased Kaurareg have continued to act on this presumption, especially in the period when they were exiled to Moa. In that period the Kaurareg Wees Nawia and his wife had a hut and garden on Waral and continued to use it to a lesser extent after the war, while other Kaurareg camped and gathered yams and turtle eggs on the islands and hunted dugong and turtle both and over the three reefs and all of area B. More recently Waral has been used as a lee haven for dinghy travel to Kubin, and as bases for gathering crayfish for the commercial market;
(c) Today’s senior Kaurareg were explicitly taught by their parental and grandparental generations that these islands and reefs are Kaurareg, and were taken to Waral as children and teenagers and shown the freshwater and food resources and mythological sites there; and
(d) The Kaurareg hold that their mythology especially legitimizes all this in that it establishes a foundational ancestral occupation in the form of the mythological figure Adhi Pithulai at Waral. According to the Kaurareg founding myth of Waubin, the latter – or in some accounts another mythological actor – chased Pithulai from Murulag Island via Hammond Island out into the sea, where he was transformed into a large boulder on Waral and, in the accounts of a number of Kaurareg, more generally into the island as a whole. They were told that there is also a related mythological site at Ului but that details of the narrative are now lost. Other mythological references relating Mukanab and Nelgi to the east.
(Emphasis added.)
621 I make the following findings about these passages. First, the “ancestral occupation” advanced is a kind of occupation specific to uninhabited islands. It refers to regular seasonal exploitation of the resources of the islands. Mr Wood does not highlight any activities beyond seasonal and occasional use dating from pre-colonial times, or even early post-colonial times. The prominence of use while Kaurareg were living on Mua is consistent with other evidence; namely, a post-colonial activity. It is during this period that Mr Wood highlights one garden, said to be established by Wees Nawia. Next, Mr Wood is clear that Waubin is a mythological figure, but describes the Kaurareg approach to the myth as “legitimiz[ing]” what they have been told by their elders. Unlike Mr Southon, he does not describe the Waubin myth as the source of rights and interests.
622 At [12], Mr Wood refers to two other matters, one of which needs some consideration in light of the evidence in this proceeding:
The Waral group and the three reefs ‘belong to’ and are ‘part of’ Hammond Island because they are in clear view from Hammond and others of the Kaurareg home islands (the Prince of Wales group). The rationale is along the lines that small pieces of land, rock, reef, or sandbar in visible proximity of a home island are outliers of it, in some ways analogous to the continental shelf principle in Australian and international conception. Further broad principles are ‘what we can see from our home island is part of it’, and the limits our proprietary domain is the horizon. As discussed below, in many such cases there is often also mythology that further identifies outlying features with the soil or other substance of the home island[.]
623 This “horizon” approach as a basis for native title was expressly considered by Finn J in Akiba. His Honour rejected the State’s argument in Akiba that the horizon represented some kind of boundary for native title in the sea: at [643]. He did find that what could be seen on the horizon from home islands was likely to be, in terms of sea country, a kind of “policing zone” for the community on the home island, but this issue runs into and needs to be considered with his Honour’s findings about different types of sharing between island communities: see at [642].
624 What can be said in terms of the evidence in this case, and also in terms of the consent determinations made, is that visibility on the horizon has not been, and could not be, used as a probative basis to support native title in the Western Torres Strait region. It is not compatible with many of the consent determinations in the area.
625 Mr Wood then goes on to describe the northernmost line of what Kaurareg claim, as at 2015:
The approximate northern boundary the Kaurareg nominated to Southon (1997, 1998) runs on an east-west axis from the strait between Gainaulai Island and Dadalai Islands on the west, and on eastwards to pass midway between Murbayl (Murabar Islet) and Dollar (or Long) Reef – that is, approximately along the 57th grid line on the 1:100,00 topographical sheet. I have many times since 1999 heard this same line stated. It allocates primary title as follows:
• Ibibin (White Rock), Ului, Dhadhalai, Waral, Murabail, Mukanab and Nelgi (Twin) Islands to Kaurareg;
• Gainaulai Islet, Tuft Rock, and all the islets north of them to Badu title in some cases and Mualgal title in others;
• Dollar Reef and small islets close to Moa to Mualgal title; and
• Since my own involvement in 1999 the Kaurareg have disavowed any interest in Gainaulai and all other islets north of it and in Dollar Reef as firmly as they have asserted primary title in the Waral-Ului area.
(Emphasis added.)
626 Obviously this assertion by Kaurareg, through Mr Wood and reportedly still being made in 2015, is incompatible with previous determinations. It is not consistent with the list attached to Mr Southon’s report. It post-dates the second shared islands determination where native title in Dadalai was found to be held by Badulgal and Mualgal. It post-dates the second Mualgal determination in which native title in Murbayl and Muknab was recognised as held only by Mualgal. It will be recalled that Dr Hitchcock in his Mualgal islands report stated there was no opposition to this outcome, and there was recognition that the islands belonged to Mualgal. Why the Kaurareg People’s claims are still being made on this basis in 2015, supported by Mr Wood, well after these other consent determinations, is not explained in the evidence.
627 From [15], although Mr Wood expresses some doubt about how “crisp” the sea boundaries were in pre-colonisation times, he appears broadly to accept and support the Kaurareg claims to the uninhabited islands. In my respectful opinion, just as in the evidence in this proceeding, the basis in the source material is thin, and very much post-colonisation, with other rational explanations for Kaurareg presence on and use of Warral during the post-colonial period, and no probative evidence about Kaurareg presence on or use of Ului, even in these post-colonial times.
628 Without reproducing it, the arguments made by Mr Wood at [16], which were similar to those made by the applicant in the present proceeding about Kaurareg mobility, in outrigger canoes in pre-colonisation times, were of little persuasive value. That is because none of this recorded mobility expressly involved Warral and Ului. All involved travel to Mua (at best, and this appears to be no more than one or two isolated accounts by Barbara Thompson) and Cape York – in other words, well to the east of Warral, let alone Ului. This is consistent with other evidence I have extracted earlier; the Kaurareg routes north trended east, not west.
629 At [17], Mr Wood describes the resource rich nature of the two islands, and then attempts to marry that up with other evidence about Kaurareg moving seasonally, depending on resources. The latter proposition features strongly in Mr Southon’s 1997 report, but it is confined to the Kaurareg home islands. It is, with respect, no more than speculation that Kaurareg also used the resources of Warral, let alone Ului, islands which were a considerable distance away, in circumstances where their pre-colonisation use pattern around their numerous home islands, and south to Cape York, is well established in early material. Mr Wood then recounts much of the same kind of evidence that the Court has heard in this proceeding, centring on a hut and garden made on Warral by Wees Nawia, but also increased visits from Kaurareg People while on Mua. Mr Wood states:
These recollections reflect the fact that after the Kaurareg were exiled to Poid in 1922 engagement with the Waral areas intensified, as it was one island they especially considered to be Kaurareg which could be readily accessed from Poid and without opposition from officialdom.
630 I make two findings about this opinion. First, it is limited to Warral. Second, Mr Wood does not appear to consider the alternative explanation, found in much of the lay evidence, and again especially in the Akiba lay evidence, that Mualgal felt they needed to be hospitable to Kaurareg when they were forced to live on Mua, and shared freely the resources of reefs and uninhabited islands that they considered owned by Mualgal. That was gud pasin. This explanation also explains a feature of Mr Wood’s informants’ knowledge upon which he relies in his 2015 report – namely, the familiarity of his informants with the land and sea resources on and around Warral. Again, the emphasis is on Warral, and Ului is hardly mentioned.
631 Mr Wood then turns to the Waubin narrative, from [31]. He introduces this topic in the following way:
The Kaurareg claim on the root rights and interests in the Waral islands appeals to their founding reference myth of a heroic adhi named Waubin. Although the myth is specifically Kaurareg and many details are retained among themselves and not readily disclosed to others, some knowledge of its core features are well known to the Mualgal community and have a scattered distribution within the Thursday Island community and the Cape York community of Injinoo.
632 This observation is also consistent with the evidence in this case – Badulgal knew, or would say, very little about this myth. It was the same in the Akiba evidence. Some Mualgal witnesses in this proceeding and Akiba were more forthcoming.
633 Mr Wood then gives an account of the myth that is not necessary to reproduce, given I have extracted the one from Mr Southon’s report above. The applicant in this proceeding submitted, and I generally agree, that differences in the telling and re-telling of the myth are not matters about which this Court should make any findings for the purpose of definitively establishing a “correct” version of the narrative. Of course, it is necessary to make some findings about the differences in the lay evidence in this proceeding about where Pithalai sits, but the purpose of those findings is not for the Court to pronounce on a ‘correct’ version in any general sense, but rather to assess the reliability of the various versions in the evidence (especially the lay evidence), and what the fact of the differences might say, if anything, about native title in Warral. However, I note that in the version given by Mr Wood, he adheres to the opinion he expressed in this proceeding – namely, that on the accounts by his informants:
Adhi Pithulai similarly flees into the sea to be transformed into Waral Island, most focally as a large rock standing on its south beach.
(Emphasis added.)
634 It can be observed that in this version, the whole island of Warral is said to be Pithalai, with the rock on the beach at the southern end being no more than representative of him. That is not what the version in Mr Southon’s report recounts, although it is how some witnesses in this proceeding described the outcome of the Pithalai narrative. In other versions, it is the rock on the beach, or in the water, and only the rock, that is said to be Pithalai, as a boundary marker.
635 In this report, Mr Wood linked the Waubin myth to ancestral occupation more expressly than he did in an earlier report he had prepared, in 2003. Extracts from that 2003 report were quoted extensively in Dr Murphy’s 2015 Warral and Ului report. Mr Wood was cross-examined by the State about these opinions. In the 2003 report he said:
The Kaurareg believe that the actions of totemic deities in the regional creation mythology inscribe group titles in all land and sea space in the Straits and Northern Peninsula region. Kaurareg refer to these mythological actors as ‘adhi’, or by the equivalent term in the regional Creole, stori. These are terms common to the region, and generically denote both myths and the shoreline boulders and islets into which mythic actors are held to have been transformed.
…
Although a group’s activity history on an outer island is also important as a basis of claim for the Kaurareg, they rights founded on affiliation to an adhi site as much deeper.
…
Since the Kaurareg claim on the customary title to the Waral group relies on the founding reference myth of Waubin, an outline of that myth is set out here.
(Emphasis added.)
636 I was not persuaded by Mr Wood’s explanation in this proceeding for the way his opinions are differently expressed.
637 In his 2015 report, Mr Wood then explains a theme which emerges in other evidence in this proceeding – namely, that Kaurareg People have asserted that their title is exclusive, when it derives from the Waubin myth. Mr Wood explains this perspective with, in my respectful opinion, considerable insight:
In my experience Kaurareg share the view of other people in the Torres Strait region that activity history on an outer islet – in the form of hunting, fishing, and gardening – is one form of validation for claim rights on it. However, they hold that this cannot take precedence over adhi sites, which they view as establishing the underlying title or something akin to the English notion of a ‘better’ title. The proposition that adhi beings were there first is central to how they construct notions like ‘occupation’ and ‘lawful occupant’: in the words used of Waral by Kaurareg speakers in meetings in 2001 at Moa and Badu, ‘i gad Kaurareg man stanap there’, that is, the Kaurareg adhi Pithulai is standing on Waral in the form of a boulder and is thus in primordial occupation and possession.
638 And later at [56]:
Another Mualgal man, albeit whose wife was Kaurareg and who spent much of his life with them, the late Wap Charlie, told me that the truth or otherwise of what one or other person may assert is hard to assess whereas adhi, metamorphosed in stone, are visibly there in person:
[suppose] This fella bi tell me, [well] he might be liar. ‘Nother fella might be true …but this rock, i Pithulai stanap. [his emphasis]
[Translation: Some might tell me something, but he may not be telling the truth, another might say something that is the truth, we can’t be sure from their words alone, but this stone the adhi standing, is a visible verifiable fact.]
The act of transforming oneself into stone is seemingly also considered an authoritative statement made by the adhi himself.
This logic leads the Kaurareg to view others’ use of land or waters identified with their adhi as trespass, and to reject claims that hunting, gardening, or any such surface activity can by itself give rise to entitlements that could reverse or take precedence over the presence of an adhi, or that occupation of any place by a group by force or by opportunity during absence of the legitimate group – as during the Kaurareg exile on Moa in the 1920s to 1940s – can undo what they regard as the immutable ‘facts’ embedded in the place itself.
It should be added that, although in their view the root title to the Waral islands is exclusive to themselves, it does not necessarily entail exclusion of others in practice from visiting and fishing at the islands. What is exclusive in their construct is the underlying group identity of the islands and the right to determine disposition of them, including surface access and use by non-Kaurareg. They took the same view in their land claim on the central islands.
(Original emphasis, annotations to text in original.)
639 Mr Wood’s linking of this strongly held view to the repeated exile of the Kaurareg People from their home islands is an opinion I accept: see [70]-[71] of this report.
640 Mr Wood also makes some insightful observations at [75] in this report about the emphasis of non-Kaurareg on gardens:
Also in play is cultivator versus non-cultivator values in an unspoken but often gestured hierarchy of occupation and use incidents: non-Kaurareg more often treat the matter of who made a garden at a place as a weightier index than hunting and gathering use, noticeably in my observation even in the Mualgal community densely kin-related to the Kaurareg. Although today’s Kaurareg ancestors indignantly told the Europeans on the Rattlesnake in 1848 that they were cultivators and Barbara Thompson confirmed it, today’s Kaurareg often assert pride in the primary place of wild foods in their indigenous economy and skills. As shown in section 4 above, the Kaurareg do appeal to use and occupation history – their own – in area B. In my observation they rely even more on it in areas where there are few or no defining mythological reference points or they are lost from memory, such as waters and islets south and east of their home islands. Gardens are a more visible, tangible mnemonic than use of wild resources, but not more meaningful for everyone in the region. Even on Mer where horticulture was prominent some people were mostly marine hunters and foragers and their prestige was invested in it.
(Footnotes omitted.)
641 The earlier connection reports about Kaurareg native title provide a less than consistent picture of how their native title in the sea and in the uninhabited islands in the sea is said to arise. They reveal expansive claims, even in the face of other consent determinations. The changes in Mr Wood’s reports as they approach the time of the 2015 mediation, and after it, are consistent with an increased focus on supporting the shared ownership claim. Of all the material, and aside from those parts of Mr Wood’s 2015 report dealing with the links between the exile of the Kaurareg People and how they assert their native title (which I agree have some force), I prefer to be guided by the earlier report of Mr Southon.
WHAT IS THE SOURCE OR ORIGIN OF RIGHTS FOR KAURAREG IN WARRAL AND ULUI?
642 The applicant’s primary case on this issue can be found at [242] of its closing submissions. The overall proposition (#3) is that “Badulgal, Mualgal and Kaurareg each satisfy the ancestral occupation and use requirements in relation to Warral and Ului”. It is then submitted:
Akiba does not suggest that Kaurareg need abstain from reliance on Waubin, Waubinin malu [(Waubin’s sea)], or Pithalai and elect to rely only on the activities of their non-story, non-spiritual ancestors for ancestral occupation. That they could do so makes a nonsense of the idea that they must be members of a different society than Badulgal and Mualgal simply because their story of a mythological ancestor happens to overlap with activities of human ancestors. The evidence relied on to support Proposition #3, also supports Proposition #6. Kaurareg acknowledgment and observance of traditional laws and customs about the originating basis for ownership of a place is no different than that of Badulgal and Mualgal. No lay witnesses has suggested that Kaurareg reference to their story as well as to known, remembered, and passed down knowledge of, human occupation and use, is not a traditionally proper basis for a claim of ownership notwithstanding that there are known variations and different interpretations of the story that they contest. There are also known variations and different interpretations of the ‘history’ of ‘human’ occupation and use. That a particular geographical circumstance may involve the presence of a mythological ancestor of one community but not the others, does not entail that the laws and customs are not the same. It is simply that in that circumstance, one community has an additional element of ancestral occupation that it may rely on.
(Original emphasis.)
643 The applicant put this as a “society” question but, as I have explained, I do not consider that is a helpful or appropriate prism for the Court’s findings, especially because there was no comprehensive examination of Kaurareg traditional law and custom in this case. I confine myself to findings about what the evidence shows is the claimed source of Kaurareg native title in Warral and Ului.
Reliance on ancestral occupation
644 In final submissions, to make good an ancestral occupation basis and, I find, to reduce emphasis on the Waubin myth, the applicant referred to a passage from Fr Paul Tom’s examination-in-chief as evidence that Kaurareg traditional law and custom prescribes that ancestral occupation is the originating basis for rights of ownership of land:
MR BLOWES: Okay. So in your understanding of things, is Hammond Island part of Kaurareg country or somebody else’s?
FR PAUL TOM: Yeah, it is. Yeah I believe, yeah.
INTERPRETER: Yes.
MR BLOWES: And again from what you’ve learnt from your father and other old people, why is it that Hammond Island, Keriri, is part of Kaurareg country?
FR PAUL TOM: That’s where he live always from day one.
645 In the applicant’s submission, Fr Tom was referring to his Kaurareg ancestors when he said “That’s where he live always from day one”. The applicant also relied on the following passage from Fr Tom’s cross-examination by the State, which it submitted was evidence of a clear acknowledgement of a law that land can belong to the Kaurareg People on the basis of ancestral occupation without the presence of adhi:
MS KIDSON: But when your father was telling you about the places that are adhilgal - and I might not be saying that properly - he’s never said Ului was one of those places; is that right?
FR PAUL TOM: Adhilgal is where the adhi is but like - something like when I’m talking about fish trap, when you go to Wednesday Island it’s not adhilgal but it’s the Kaurareg and you see all the fish trap there, and I always forget about that. I shouldn’t be saying that. Wherever you see there’s a fish trap, it’s Kaurareg must have been there. Just like Murray Island, they got all the fish trap, like the island like Wednesday Island.
646 I accept that in this passage Fr Tom is emphasising that there may be country of the Kaurareg People which do not have a specific adhi associated with them, but are nevertheless Kaurareg country because of ancestral occupation. In my opinion, however, Fr Tom was talking about the home islands. That is in my opinion the point being made by Dr Murphy in cross-examination upon which the applicant relies at [63] of its reply. Dr Murphy said that at the chapter headed “Land Tenure” in Mr Southon’s 1997 report:
there are page after page after page of descriptions of occupation of inheritance and then it’s right at the end he gives the Waubin story, and this is, it seems to me, an additional kind of thing that Kaurareg put up as “here’s our evidence”.
647 I accept that ancestral occupation in the way that term is used in Akiba, and used by the State and Badulgal respondents here, is what Mr Southon’s report was concerned with on the Kaurareg home islands. Intertwined with that was the Waubin narrative. Further, for sea country and for the uninhabited islands in that sea country, the source identified by Mr Southon was the Waubin narrative. It is far from an afterthought, if that is what Dr Murphy was suggesting, although I do not think he was. His own earlier reports reveal a clear consciousness about the prominence of the Waubin myth in Kaurareg accounts in support of native title.
648 By closing submissions the applicant contended the Waubin myth itself was evidence of Kaurareg ancestral occupation of Warral and Ului, with the figures in the Waubin and Pithalai story being real people whom the Kaurareg regard as their ancestors. The applicant relied on Fr Tom’s evidence that adhi, like Pithalai and Waubin, were real people, and not purely mythological figures. In cross-examination, Fr Tom gave the following evidence:
MR McAVOY: And adhi is not a real person, no?
FR PAUL TOM: It was, million years ago, I think. That’s what they believe. He was a person.
MR McAVOY: Can I say it this way: he was a Story person that was turned to rock?
FR PAUL TOM: Well, you have to tell story something that been happen before, long time ago. You can’t tell story without nothing been happen. Can you do that?
MR McAVOY: Well, it’s your evidence, Father Tom.
FR PAUL TOM: Yes.
649 I consider Fr Tom’s answer was something of a retort to what he perceived as an inappropriate question from Mr McAvoy, somehow questioning Kaurareg beliefs.
650 In Fr Tom’s examination-in-chief the applicant contended Fr Tom had made a similar point:
MR BLOWES: So those rocks, adhi, what does word “adhi” mean?
FR PAUL TOM: It’s a long time story, what do you call it - what I call them is historical warriors. The story go that they been fighting before between the season, people - I don’t know - that time that’s what the story said. And we mentioned - I always say that they are historical warriors like that story to our land.
MR BLOWES: And that word “adhi” do you use that when you’re talking about some person in - - -
FR PAUL TOM: Yeah. Yes.
MR BLOWES: What does that mean when you’re talking about a person?
FR PAUL TOM: Adhi, that’s our adhi, well he be coming, when it’s somebody you don’t know, he would tell you - that’s our adhi.
INTERPRETER: (Kala Lagaw Ya spoken)
MR BLOWES: Can you interpret, please.
INTERPRETER: What’s Father Tom is saying those are our stories. Those are our places. Those are our islands or these are our islands. Adhi refers to a person who is mentioned in the story like Father said.
…
FR PAUL TOM: That’s Waubin. So Waubin walked all the way from there across the Prince of Wales and that’s where they cut his leg off, he cut his leg off and that leg is on top of the hill there, that water, that is called Rabaul Ngukie, Rabaul Ngukie, that’s his leg his on the water. Today people call that water (dwork) story, but that story was told to us that water was Rabaul Ngukie. Rabaul was his wife, so he took all them nine wives, he walk around here and they tried to walk behind him. There was Kiwaini, Mutukaini, Yemu, Wagani.
MR BLOWES: They old people?
FR PAUL TOM: They old people at that time, this story was told they was people that time …
651 In my opinion it is not clear Fr Tom was at this point saying each adhi was a real, human ancestor. He was re-affirming the importance of the Waubin story for Kaurareg People, that it had been passed down from the elders, that it was an accurate account of how Kaurareg People came to have their country, and to be united as one people. In one sense, it matters not whether what Fr Tom was trying to say was that as a Kaurareg person he believes that, back in deep time, Waubin was a human being. On any view, he was explaining that Kaurareg traditional law and custom marks boundaries, especially beyond inhabited home islands, by the boundaries of the Waubin story. And it is because of that story that Kaurareg People assert they have exclusive ownership rights beyond their home islands, in sea country and in the uninhabited islands in that sea country. That is not an account dependent on ancestral occupation as that concept is explained in Akiba.
652 Fr Tom’s evidence was in my opinion similar to that given by Eliziah Wasaga:
MS PHILLIPS: Okay. I’m going to look now at some of the ways in which people get their country. So how do Kaurareg get their country? Who does it come from?
ELIZIAH WASAGA: Well, it come from Waubin, I believe, because he’s the Creator of this region.
653 Mr Wasaga was describing the Waubin story as a creation story. He was not talking about being descended from Waubin, or knowing that other Kaurareg were descended from him, and knowing what was Kaurareg land because Waubin occupied it. This is quite a different kind of account. No less valid, but different. I consider his following evidence should be understood in the same way:
MS PHILLIPS: And you – you mentioned that Kaiwalagal. What does the Pithalai site mean in terms of what is and isn’t Kaiwalagal?
ELIZIAH WASAGA: I think Pithalai is the boundary that represents our region that Waubin, our warrior, occupied. And they resembled the boundary where we know that we can go and exercise our traditional rights.
MS PHILLIPS: And so you mentioned there the Waubin Story. And have you been in court today?
ELIZIAH WASAGA: Yes.
MS PHILLIPS: And you’ve heard that there are – people have told some of the Waubin Story. Would you like to tell the court briefly what you know about that Waubin Story?
ELIZIAH WASAGA: Well, Waubin’s our – our blood, our adhi.
654 I do not consider that Mr Wasaga meant literally that Waubin was his human ancestor. That is apparent from this evidence he gave in cross-examination, where he is clearly relating a creation story, rather than an account of what one of his human ancestors did:
MR McAVOY: And do you have any knowledge of the concept of the Sea of Waubin? Sea of Waubin?
ELIZIAH WASAGA: Yes.
MR McAVOY: How did that come to your knowledge?
ELIZIAH WASAGA: Well, we refer to Kaiwalagal as the region. That – the sea that’s in that region we refer to as Waubinin Malu, because that’s his sea, because that’s the sea that he protected.
MR McAVOY: And is it just simply defined by where the adhi area or is there another method of definition?
ELIZIAH WASAGA: I think when he had his leg cut off at Rabau and he walked out there, you got that … going east and west. Obviously the blood from his leg went that way.
MR McAVOY: Went west.
ELIZIAH WASAGA: West and east.
655 Mr McAvoy then tested the logic of what Mr Wasaga was relating in terms of the working of the tides in that region, and which way blood would be carried:
MR McAVOY: But the tide flows from east to west, doesn’t it, and west back to east?
ELIZIAH WASAGA: Yes but you could imagine could’ve been windy that day or – you don’t know what the weather conditions were back those days but from the stories handed down that we refer to the Kaiwalagal region and the ocean within Kaiwalagal, that is …
656 The rationality of a creation story such as this is not the point. Indeed, creation stories are often designed to defy the bounds of rationality; they require belief. However, the relevant point is that the way Mr Wasaga answered the question was to re-frame his explanation as a mythological narrative – “from the stories handed down”. In my opinion he was not describing a human ancestor, even back in deep time.
657 Otherwise, no other Kaurareg lay evidence sought to make a connection between the Waubin narrative and ancestral occupation. The rest of the lay evidence relied only on the Waubin narrative as the source of Kaurareg native title. Based on that starting proposition or source, the Kaurareg lay evidence then gave accounts about the use of the resources on Warral (and to a much lesser extent if at all, Ului) when people were visiting, and were looking for food, or sometimes other resources like black goanna skins for drums. If this is equivalent to “ancestral occupation”, then the applicant is correct that there was a great deal of evidence about it. However, as I explain below, I do not consider this evidence is evidence of ancestral occupation in an ownership sense, as opposed to permissive use. Nor is the evidence probative even of this kind of use pre-colonisation. The State is correct to make the distinction it did between ownership and permissive use.
658 As I have just noted, the applicant’s Kaurareg lay evidence was replete with accounts of the Waubin myth establishing that Warral is part of Kaurareg country or ‘Kaiwalagal’. Fr Tom explained in cross-examination by the State that the presence of adhi on Warral makes the island part of Kaurareg country:
FR PAUL TOM: Before the Native Title come up, you got to learn where you live, our culture, everything and the boundary. So that been taught before the Native Title come up.
MS KIDSON: And I gather that your father never really thought of using those types of words, did he? He didn’t talk about boundaries; is that right? Or did he actually tell you about the boundary of Kaurareg country?
FR PAUL TOM: Yeah, he was talking about kaiwalagal, the boundaries.
MS KIDSON: And so did he say that that was marked by all the adhi sites; is that how you - - -
FR PAUL TOM: Yeah. When we used to go all around the island, he always said, “Son - island - this is our island” wherever we go. And that’s what he said.
MS KIDSON: So he would say, “This island belongs to our people”?
FR PAUL TOM: Kaurareg, the Kaurareg, kaiwalagal what he call it.
MS KIDSON: Did he ever actually say that Warral belongs to Kaurareg people?
FR PAUL TOM: Yeah, in that time like, you know, because when we went through there, he was talking to the rock and he said [Kala Lagaw Ya Spoken] He got that name for islands there, waralsina.
MS KIDSON: I’m going to need to have that translated.
HER HONOUR: Mr Repu, you’re going to have to translate.
FR PAUL TOM: [Kala Lagaw Ya Spoken]
INTERPRETER: What Father Tom is trying to say is Warralsina is a type of terminology used in expressing that there is Warral, or another one is Warral.
MS KIDSON: Is that saying there is another adhilgal or is it another site? Is it another adhi site?
FR PAUL TOM: Like he said, “This is kaiwalagal. It’s the kaiwalagal Warralsina.”
INTERPRETER: These are - - -
FR PAUL TOM: That’s the language, yeah.
INTERPRETER: These are the kaiwalagal. Warral is there.
FR PAUL TOM: Because of that adhi, anyway.
MS KIDSON: Because of the adhi?
FR PAUL TOM: Yeah.
MS KIDSON: So is it because of the adhi, is it that these are places in the Waubin story? Is that what makes them Kaurareg country?
FR PAUL TOM: Well, according to - according to them, [Kala Lagaw Ya Spoken]
MS KIDSON: Could you translate.
INTERPRETER: According to the people of that time, those adhis are as marks of the Kaurareg boundary.
MS KIDSON: Yes. So is it that those mark Kaurareg country even if Kaurareg people haven’t gone there? Is it still Kaurareg country because the adhi site is there?
FR PAUL TOM: Yes, because of that adhi.
MS KIDSON: And if the adhi sites mean it’s Kaurareg country, can that country belong to anyone else except Kaurareg people?
FR PAUL TOM: Used to be. Like I was saying before, used to be everybody - wherever everybody, they want to go but when Native Title been come up, then the boundary come up and people tried to say to people, “That’s our boundary. That’s our boundary. That’s our boundary.” Now, it’s happening today. Now, we tried to solve that boundary but what we know from our - our past, told by our fathers so we know where our boundary is.
….
MS KIDSON: So if there’s an adhi place, even Kaurareg people haven’t actually gone there, it’s still Kaurareg country because of the adhi place; is that right?
FR PAUL TOM: Yes.
MS KIDSON: And so Kaurareg country, if it’s from the stories that make it Kaurareg country, can that same country belong to anybody else even if they don’t share that story?
INTERPRETER: [Kala Lagaw Ya Spoken]
FR PAUL TOM: No, that’s still adhilgal like today is still like I been said before, it’s a mark post, it’s a boundary mark, something like that, and he’s been marked. So at that time, anybody can go there but the Kaurareg people know their culture. They talk to - you know, they talk to adhi before we go there. If they jump on the other island, like (Kuara) every island they always talk to the spirit.
(Emphasis added.)
659 In cross-examination, Mr Thomas Savage explained that the presence of adhi makes Warral the exclusive domain of the Kaurareg:
MR McKECHNIE: So, from your point of view following Kaurareg law, are Kaurareg the only people that own Warral?
THOMAS SAVAGE: I would say from my – my knowledge, yes, because of – because of Adhi, yes.
MR McKECHNIE: But you’re happy to share it from a native title perspective with the Mualgal and Badulgal?
THOMAS SAVAGE: So, going back to what Uncle Paul said, since native title, you know, showed itself, this is when we have this division. But from a Kaurareg point of view, Adhi has always been there and we always practise that.
(Emphasis added.)
660 Mr Savage also gave this evidence:
MR McKECHNIE: Yes. It’s the same area. Now, is Waubinin Malu the reason - like that story, is that the reason why Kaurareg own these places?
THOMAS SAVAGE: Because of that Adhi.
MR McKECHNIE: Because of that Adhi?
THOMAS SAVAGE: Adhi.
MR McKECHNIE: Are there any places outside of that story that Kaurareg own?
THOMAS SAVAGE: No, just within those boundaries.
THOMAS SAVAGE: Because of the Adhi, yes.
661 Like Fr Tom, Mr Wasaga’s evidence was that the Waubin myth establishes the boundary of the Kaurareg People’s traditional lands and waters:
MS PHILLIPS: Now, these Stories that you told us, not only the Pithalai Story but the Makaku Story, your explanation of what Adhi means and Adhi Lagaw – Adhi Lagaw – sorry – how do they connect Kaurareg people to Kaiwalagal, these Stories?
ELIZIAH WASAGA: Well, Kaiwalagal is the region. Kaurareg is the tribe. And that’s – that us. And from these Stories we are guided by that boundary where these landmarks are presented, and that’s how we know who we are in this region. That’s Kaurareg country.
(Emphasis added.)
662 Enid Tom’s evidence was to similar effect:
MR BLOWES: Okay. Now, so Kala Lagaw, that talks about the Kaurareg home islands, community islands, and does it go any – and you said it includes the islands and the seas around. Have you got anything that’s come down to you from the ancestors about how far out from the Kaurareg home islands, that Kala Lagaw goes?
ENID TOM: Yes. I been told by my dad the boundary of the Kala Lagaw region, and why those are the – are these – like, Pithalai and Ibibin and all them are standing in different areas, why that was.
MR BLOWES: So you understand that the home islands are Kala Lagaw and the seas extending out to where those Kala Lagaw are.
ENID TOM: They are Kala Lagaw regions there.
Expert evidence
663 I consider the expert evidence, both in terms of the evidence given specifically for this proceeding, and the evidence tendered, supports the proposition that the way Kaurareg People account for Warral and Ului belonging to them is by reference to the Waubin myth. That is their traditional account of how and why Warral and Ului belong to them. There was some effort made by the applicant’s three expert witnesses to put a different slant on the Waubin narrative, but that is in stark contrast to both their own earlier opinions and those of other anthropologists such as Mr Southon.
664 The applicant submitted that the evidence of its three experts was consistent with the contention that the Kaurareg People’s reliance on the Waubin myth does not differ as a source from the source of the Badulgal and Mualgal’s native title rights in Warral and Ului. The applicant referred to a section of Mr Wood’s 2022 report that deals with the role of mythology in the assertion of rights in the Torres Strait:
Appeal to different criteria in some of the disputes that the native title claim process has highlighted – such as appeal to mythological authority versus the authority of physical occupation and use of recent human ancestors – does not add up to a different body of laws and customs. Rather it can be shown that each party appeals to a different element of the same body of laws and customs. That is, the selection of criteria depends on what each party considers their strongest point in a menu of criteria, not on differing menus.
665 The applicant also referred to certain passages of Mr Wood’s cross-examination, in which Mr Wood suggested that the actors in other myths were real people:
MR McAVOY: So, what role does the mythological connection to a place have to do with the concept of emplacement in your view?
MR WOOD: As those people in the islands in Cape York have explained it to me the mythological actors are amongst the very earliest beings that are there.
But they run mythological time into historical time so, for example, this was recorded by Haddon in relation to the hero Kwoiam that people on Mabuiag regarded him as a historical person who’d actually been there quite recently even though parts of the topography were magical transformations that anthropologists really regard as – and they themselves will vacillate between the term story, adhi, so the human ancestors just merge into the mythological ones.
666 Mr Wood’s opinion in his 2022 responsive report reveals the same kind of approach, trying to emphasise the human side of any account (at [80]-[81]):
Southon’s (1997:75-79) examples make no real distinction between addressing ancestral spirits and addressing mythological beings, and I have recorded like data (see 29 of my fieldnote copies already provided). My Mualgal informants, already found to be members of the same society as the Badulgal, said the same of Mualgal, Kaurareg, and Badulgal mythological figures, attributing to the many small islets in the Kanig and other groups south of Badu, Badulgal spiritually embedded rights and interests in those islets (see my field note copies pp. 30-38 already provided). The emplacement of a group’s mythological figure at such an islet was spoken of as ancestral occupation itself, for example:
All them adhi (mythological ancestors), Legend Stori, who be there pas?! Them! Same with Seven Brothers [mythological figures of the Central Islands], and Thotalai [a Mua mythological site], and Waubin Stori, and Farewell Rock [another Mua site], they bi there pas, we just lately, and grave and all. That Stori [beings] first. (John Manas, Mualagal, p. 30 of field notes already provided.)
That’s, then small island far away from us [Mualgal], Kanig and all, so they gotta claim it. They got Stori there, warrior Sobay and Wayi, they in Kanig, they [are] stone there. They, Badhu people, make a dance for those two – they came from Badu to Kanig – that Stori made into dance, with bow and arrow, stone club, very nice, like dancing for Waubin. (John Manas, see 32 of notes)
These are just a small sample of such statements I have heard from Kaurareg and Mualgal people alike (see others in Wood May 2022), and they closely match the Maizab Kaur case and others I detail in Wood (May 2022). From them I infer that mythological ancestral figures and their sites are read in the regional indigenous view as a major factual proof of ancient ancestral occupation.
(Emphasis added.)
667 The applicant did attempt to draw the Waubin myth into the realms of ancestral occupation by suggesting Kaurareg People themselves saw Waubin and his fellow actors as their human ancestors. The State responded (at [41]), in terms with which I agree:
The Applicant’s proposition that the actions of adhi beings are emically understood by Kaurareg people “as a form of ancestral occupation”—so as to deny that the Waubin myth evidences a different originating basis for the possession of rights in land and sea—is not borne out by the evidence (cf. AS [53]). As Mr Leo observed, the “people” in the stories are giants with supernatural abilities; Kaurareg people talk of Waubin as the origin of all Kaurareg people, not as a known antecedent in a descent line. Nor is the Applicant’s proposition supported by Mr Wood’s evidence (cf. AS [199]. Mr Wood was clear that when he referred to human ancestors merging into mythological ones, he was speaking from an external (etic) anthropological observer’s point of view that “mythology is mythologisation of first human occupation” (an observation applicable to mythology more generally, not just Kaurareg people), and he was not suggesting that there is no difference between “ancestral occupation” and “mythological emplacement in the landscape”.
(Original emphasis, footnotes omitted.)
668 It can be accepted that the evidence strongly demonstrates that each generation of these three groups (and through Akiba, other community island groups in the Torres Strait) has stories told to them by their elders about their sea and island country, how people travelled around it and what they did, and about who used to occupy it. Some of these stories on the evidence plainly involve human ancestors, like Waii and Sobai for Badulgal. Some witnesses, like Mr Wolfgang Laza, could trace their genealogy back many generations to these warriors. Whether or not that evidence is accepted at face value, it indisputably illustrates that traditionally these figures are regarded as human, not superhuman.
669 Other stories from the region, such as the Gelam story that links Mua and Mer, and was told to the Court by Mrs Warria, and also by Mr Eliziah Wasaga, appear to involve mythical creatures, or to have mythical or supernatural aspects. Yet others, like the Waubin story in my opinion, plainly involve the supernatural, and are intended to do so. The Waubin narrative is a landscape-scale story designed to explain the scope of all of Kaurareg country, relevantly their sea country and the uninhabited islands in that sea country, away from the home islands. It does this by equating Waubin’s blood with the sea, for example – a truly supernatural concept. I accept the Waubin story is also used to explain aspects of Kaurareg home island country as well. To describe stories, myths or narratives as ‘supernatural’ is not to diminish them, only to signify their different conceptual origin and sometimes different purposes. As the cross-examination of Mrs Warria sought to establish, the Gelam story, despite giving an account of how fertile soil was brought from Mua to Mer, thus linking the islands, is not a story that gives Mualgal any rights in land on Mer. On the other hand, the supernatural narrative of Waubin is employed as a source of title to land and sea.
670 I find the applicant’s three experts strained to re-classify the Waubin myth as relating to ancestral occupation. None of them had done this so comprehensively in their earlier reports. Neither had experts like Mr Southon, who had reported separately on Kaurareg accounts of seasonal ancestral use and occupation and then the ‘legitimization’ of this through reliance on the Waubin myth. I understand this to mean that the Waubin myth gives Kaurareg People title, and they demonstrate that to the outside world by their seasonal use and occupation. While this proposition could be inverted, that is not in my opinion the thrust of the expert material or the informant sources it relies upon. This understanding is consistent with the lay evidence in this proceeding, and what informants told people such as Mr Southon. The Waubin narrative was a traditional and customary explanation of how to identify Kaurareg country, and it was supernatural in nature. That does not mean it is any less real, or vital, to Kaurareg People. But the evidence in this proceeding suggests they do not understand it as simply describing the human activities of their ancestors. It is a creation story for all Kaurareg country.
671 I accept Mr Leo’s opinion that the better view of the lay evidence is that Kaurareg do not see Waubin and other adhi as real people or ‘known antecedents in a descent line’, but rather mythological beings through whom they assert rights to land on a basis different to that of ancestral occupation:
MR BLOWES: So, your view of spiritual emplacement is the spiritual emplacement of people, not the myth?
MR LEO: Of myth, yes. This wider myth is about - - -
MR BLOWES: Is it the people or is [it] the actors and the myth?
MR LEO: The myths, yes. Who are said to be people, but then they’re giants. They have these abilities that are supernatural, they are not actual people people.
MR BLOWES: All right.
MR LEO: Who are known forebears, as in I don’t recall, I just recall that from the lay evidence and the expert reports. When people talk, when Kaurareg people talk of Waubin, he is the origin of all people. They do not recount that they are, for instance, like Samat does in regards to Waii and Sobai as being his father’s being the seventh generation down. People don’t say “I am a twelfth generation descendent of Waubin”. We are all of Waubin.
MR BLOWES: No, but they say he was their ancestor.
MR LEO: Of all.
MR BLOWES: The Kaurareg ancestors.
MR LEO: Yes, but that is not in the sense that, oh well he is – I can tell you my twelve generation descent from that person, from that myth being, who is a giant, who has incredible powers and ability.
672 The State submits that Mr Southon’s report indicates that the Kaurareg People source their rights in Warral and Ului through the Waubin myth. I have extracted these passages at [608] and [610] above and I accept that submission. I also agree that Mr Wood’s 2003 report frames the account of Kaurareg rights and interests as arising under traditional law and custom from the Waubin myth. Mr Wood’s 2015 report and Dr Murphy’s 2015 report both begin to re-align the Waubin story inside, or alongside, the Akiba concept of ancestral occupation, and that is in my opinion because of the existence by that time of the shared ownership claim, or proposal.
673 While I also accept (as Dr Murphy pointed out in cross-examination) that in relation to the land tenure of the Kaurareg home islands, in his report Mr Southon describes a system of occupation and inheritance, I consider that is largely explained by the fact that people are describing where their communities have always resided, as opposed to areas they may consider Kaurareg country but which are not permanently inhabited, or which they use, such as the sea. For these areas, more reliance is placed on the Waubin myth, radiating out from the home islands. Some of Mr Wood’s observations about why this narrative is so prominent may have force. The reason is less important than the objective fact that Kaurareg People themselves very clearly explain their title to Warral and Ului by reliance on the Waubin narrative.
674 The main point is that, prior to the shared ownership claim, where expert observations were expressly directed at asserted Kaurareg title in sea country and in uninhabited islands in that sea country, they did not frame their discussion in terms of ancestral occupation. They framed it by reference to the Waubin story.
675 It does seem to me, with respect, that Dr Murphy’s opinion has changed somewhat to reconcile the Waubin myth with the occupation-based findings in Akiba. At [101] of his report in this proceeding he suggests the Waubin myth is no more than an “alternative” basis suggested by Kaurareg People:
There is extensive archaeological evidence that islands which were not permanently occupied were, nevertheless, occasionally and temporarily occupied, including evidence at Warral. In my experience, the discourse of Islanders in making assertions to hold rights in particular places, including intermittently occupied islands, lays great stress on their belief that their ancestors previously occupied the islands, and that they have inherited their rights from those ancestors. In my experience, particularly in relation to Kaurareg people and their assertions of rights in Warral, there has been an additional – but not alternative – element to their assertions, which has involved deployment of the story of Waubin and Pithulai.
(Footnote omitted.)
676 This opinion is not consistent with the lay evidence in this proceeding. It is not consistent with earlier expert reports. Indeed it inverts the emphasis from the Waubin narrative to a narrative about occupation by ancestors. I do not of course suggest that the Kaurareg witnesses omitted evidence about visiting Warral (and Ului, less so); but in my opinion this was not evidence given about the source of their rights in the islands and the witnesses did not frame it like that. They framed it as visitation and use of resources, with their title deriving from the Waubin story. When pressed about why the islands belonged to Kaurareg and therefore why they could take resources, the witnesses did not fall back on the fact their ancestors before colonisation had been doing the same thing. Rather, they fell back onto the Waubin narrative, as the extracts above demonstrate.
677 In his 2008 report provided to this Court in Akiba, Dr Murphy provided a differently emphasised opinion about the role of the Waubin myth in the establishment of the Kaurareg People’s connection to lands (at 475-76):
Dr Sackett notes Southon’s account of the story of the Kaurareg ancestral figure Waubin, and Scott and Mulrennan’s account of the story of Rebes, and argues that these stories “ground and substantiate” claims by people to rights in the places referred to in the stories. He goes on to state:
It may be that not every island population had, has, or retains, such myths. If and where other island populations tell such myths, though, they profitably could be used to add substance to claims regarding extended sea country, and better fill apparent gaps in the picture for the Torres Strait as a whole.
In my opinion, myths do sometimes serve an effective function in arguing for one’s ancestral history of occupation of a place, and I have many times heard them used by Islanders and New Guineans in this way. It is not the case however that myths function as analogous to “title deeds.” Throughout Torres Strait and the southern coastal region of New Guinea there are many myths which are alternative versions of the same or similar events, often involving characters with the same or similar names. The characters in the myths move from place to place; and the same or similar events involving the same or similar characters occur in different places with no other explicit connection between them. Such mythical connections may provide the basis of a relationship, and in some cases are asserted and accepted as demonstrating that a particular group possesses rights in a particular place. In my analysis this should not be generalised as a “rule.” Myths may only function in this way in relatively unusual circumstances — ie where there are no strong competing claims of historical occupation of the place. In my analysis, the myth serves as evidence of historical occupation; in and of itself it is not determinative of the possession of exclusive rights, even though it may be argued by the group that it should do so. The most obvious example of this is the case of the Kaurareg myth of Waubin. Some Kaurareg people assert that this myth is evidence that they possess exclusive rights in a portion of the claim area. Other Islanders point to the history of occupation of the area by their own ancestors in arguing against the exclusivity of the Kaurareg rights. To repeat: the myth is evidence of historical occupation by a particular group; but does not confer exclusive rights, as other forms of evidence of historical occupation by other groups may exist in the same place.
(Footnotes omitted, emphasis added.)
678 This opinion was obviously in part directed at the question of exclusivity, but what it also demonstrates is not that a narrative about ancestral occupation and a narrative about Waubin are alternatives, but rather that the latter is used as evidence of the former.
679 There are three difficulties in the context of the present proceeding with this approach. First, it is directly contrary to the lay evidence and would require the Court to discount entirely the basis of rights explained to the Court (sometimes emphatically) by the Kaurareg claimants themselves. Second, if the Waubin narrative, and its Pithalai component, are no more than “evidence of historical occupation”, then on the way the narrative was variously explained in the evidence before this Court, it is insufficiently probative of occupation of the whole of Warral, and it is not probative of any occupation of Ului.
680 Third, there is barely any positive ancestral occupation evidence in favour of the Kaurareg People which could (on this approach) be confirmed or corroborated by the Waubin narrative, even if there was a consistent version of it about Warral. There simply was no factual evidence at all about Kaurareg occupation of Warral and Ului prior to colonisation. There was no evidence about even use of Warral (let alone Ului) prior to the forced removal of Kaurareg to Poid. The evidence comes from times after the early 1920s.
681 In that way, Dr Murphy’s revised opinions may make the Kaurareg case even harder.
682 In relation to Mr Wood, and the suggested differences between his opinions in 2003 and 2015, and his opinion in this proceeding, which sought as I have described it to downplay the role of the Waubin narrative, I found his answers in cross-examination to Ms Kidson to be perplexing.
683 There was this evidence:
MS KIDSON: Well, in terms of actual law and custom, the way in which Kaurareg see their rules and how they obtained their rights and they were able to then pass them on, I take it you’re not saying that you don’t believe that mythology has a role, or actually operates as an originating basis, I understand you to say it’s not the only one?
MR WOOD: I’m not saying that it always does. I’m saying that it’s got a latent and – insipiently available – the situations in which any group in dispute with others will advance what they think is their strongest point, and in some of these situations in this region that would be an appeal to mythological criteria.
684 This opinion seems to suggest that claimants such as the Kaurareg People will pick and choose what narratives they present, and that the account they give of the source for their title to country may not be the “true” or “correct” account. That is a proposition I find difficult to accept. I did not assess any of the Kaurareg witnesses in this proceeding as tailoring their evidence to their “strongest” point. They were intent on defending the outcome of the 2015 mediation, that was clear. But they did so, in my assessment, because it accorded with their own honest and firmly held account of what was the source of Kaurareg rights in Warral (and Ului, to a lesser focus). And to a person, they nominated the Waubin myth and the adhi of Pithalai as that source.
685 Mr Wood also gave the following evidence continuing on the same theme as the previous extract:
MS KIDSON: I understand that, Mr Wood, but in your current report you’ve said that you have not substantially altered your opinions from those expressed in your 2015 report?
MR WOOD: My opinion is about different things. The 2015 opinion is a report on what the Kaurareg say. My opinion about what the situation was that I reported on in 2015 has not altered. But my anthropological opinion about the role for example, as I’ve just said, the availability of mythology as a basis of appealing in contestation is somewhat different. So my opinion in 2015 is really not all that of an opinion. It’s a statement of factual matters and information that I obtained from the Kaurareg and Mualgal supporters. The opinion that I’m talking about in 2022 which Kevin was talking about there is from a stand back anthropological analysis of our own, I agreed quite strongly with Kevin’s position and I think that – like in dealing with people from Mua, it would be a pretty had road to state the extent to which they identify with Gelam as their – there’s other mythology there, but they particularly select Gelam and say “we are Gelams”. I’ve had people say that when a Mua man dies his body will go through various motions which is underlying to totemic identity of Gelam. So I think that this is quite widespread in Australia. It’s just that Mua hasn’t been thrown into any contestation in which the Gelam mythology is featured as a basis for an appeal.
…
they alone of all island groups were marginalised in their own islands and then finally they were expelled from them and removed to another island where they were outsiders.
686 Mr Wood gave similar evidence after this, in response to further questions from Ms Kidson. It is not necessary to set it out. He accepted he was expressing the same view in different language.
687 I do not accept the analogy with Gelam. The Gelam story, as Mrs Warria freely admitted, has nothing to do with title to Mer, or to the sea country and uninhabited islands between Mua and Mer. The Gelam story does connect the islands of Mer and Mua, but no witness gave evidence it formed part of traditional law about how people acquired title in land (or sea).
688 I consider Mr Wood has modified his opinions, at least in emphasis and characterisation, as has Dr Murphy, in order to support the shared ownership claim. They may each regard the shared ownership claim as a plausible claim in terms of customary rights, but neither of them were willing squarely to face the inconsistencies with previous expert opinion, including their own.
689 As I have observed earlier, Mr Wood may be correct to see the inhumane forced exile of the Kaurareg People from their home islands in the 1920s and for decades thereafter as a factor in why Kaurareg claimants resort so readily, forcefully and adamantly to the Waubin narrative. It is a more radical proposition to suggest that informant accounts relying on the Waubin narrative, back to when Mr Southon commenced his work, do not reflect the true basis of Kaurareg traditional law and custom about rights in land and waters. Kaurareg accounts of title based on the Waubin narrative have formed the basis for consent determinations, granting property rights that are recognised by, and enforceable under, Australian law. Until this case, there does not ever appear to have been a suggestion that Kaurareg People rely in some secondary way on the Waubin narrative for their title to country, and as reflecting their traditional law and custom about rights in country.
690 At least insofar as this Court must address the source of Kaurareg title for the purposes of answering the separate questions, I find it may undermine this Court’s previous native title determinations in favour of the Kaurareg People to depart from the proposition that the Waubin narrative is the primary asserted source of Kaurareg native title in Warral and Ului.
Conclusion on source or origin
691 It is regrettable that the Court has had to descend into detailed fact-finding about the Waubin narrative, but that is squarely because the primary case of the applicant revolved around fitting the Kaurareg People into the framework of Akiba, with the source of their rights in country relying on ancestral occupation. Had that not been attempted, these reasons would not have needed to engage so much with the Waubin narrative, and could have dealt only with the application of the narrative to Warral and Ului.
692 I find that the evidence comfortably establishes it is more likely than not that the asserted traditional source of Kaurareg native title in Warral and Ului is the Waubin narrative, specifically for Warral that part of it concerning Pithalai. For Ului, there is some reliance on the part of the Waubin narrative concerning Waubin’s wives, evidence about which was very thin indeed. I find the evidence establishes on the balance of probabilities, contrary to the more contemporary accounts by the applicant’s experts and by the applicant’s arguments, that the Waubin narrative is the normative rule for how the Kaurareg People justify their native title claim over these two islands.
693 Indeed, that is the basis pleaded on behalf of the Kaurareg People in their own 2008 s 61 claimant application for land and waters including Warral and Ului. Fr Tom was named as a member of the applicant when this was filed. The application relied on Drummond J’s 2001 determination, which was the determination for which Mr Southon produced his connection report. In attachment F to the applications, at [1.12]-[1.21], the following contentions are made:
Central to the association of the Kaurareg with the claim area is the traditional Kaurareg belief in and adherence to the mythical figure Waubin, whose exploits provide the charter for Kaurareg land and sea tenure. Waubin, unlike other cultural heroes associated with the Torres Strait, is a uniquely Kaurareg figure, emblematic of Kaurareg identity.
The central belief of Waubin and his associated story sites in and around the claim area provide, under traditional Kaurareg law and custom, the title deeds to the claim area and the founding Charter of historic and contemporary rights and interests in the application area and adjacent sea country.
Significantly, it is the blood of Waubin, flowing as a result of his various battles with other cultural heroes, which infuses the waters the subject of the present claim. The term “Waubinnin Malu” refers both to the deep channel running along the north side of Hammond Island (the Prince of Wales Channel) as well as to the broader Kaurareg sea territory (which includes the present claim area). Wherever the blood from Waubin’s legs was taken became Waubin territory, the whole sea enclosing the Kaurareg islands of the Prince of Wales Archipelago is called Waubinnin Malu.
Details of the Waubin myth are set out at Attachment F2 to this Schedule. Portions of the story were first recorded in 1852 in Macgillivray’s Voyage of HMS Rattlesnake and by Haddon 1988. A portion of the story was also told to and recorded by Margaret Lawrie in 1967 by Kaurareg elder, Wees Nawia.
Kaurareg identity, both in present day and over preceding generations, is intrinsically linked with Waubin: Kaurareg refer to themselves as “We are Waubin” as a means of selfidentification and differentiation from neighbouring groups. For example, in 1950, when the Manager of the Department of Native Affairs arrived on Nurupai to inform the Kaurareg of their proposed eviction from the island, he was met by Kaurareg elders standing in silence on one leg, in imitation of Waubin.
(c) Extent of Marine Territory
The traditional marine territory of the Kaurareg Aboriginal people encompasses the claim area.
The extent of Kaurareg sea country is, as noted above, founded in the travels of Waubin and the boundary markers left by him and the associated mythological warriors. Waubin provides the title deeds to Kaurareg country and to the present application.
Key parts of the Waubin story in the vicinity of the claim area include the Adhi Pithulai site on Waral Island. Also on that island is a rock representing lbibin. As noted in Attachment F2, in the north the Kaurareg Aboriginal people’s sea extended as far as the channel between Waral and Dollar Reef.
Kaurareg Aboriginal people’s sea country also extends to Mt Adolphus Island and Kagar Reef.
Central to the myth of Waubin is the notion of exclusivity of Kaurareg territory. Waubin’s weapon, the baidamal baba, used to fight off intruders to his territory, continues to be made from traditional natural materials by present day Kaurareg men.
(Footnotes omitted.)
694 While Dr Murphy expressly rejects this characterisation of “title deeds” for the purposes of the resolution of the separate questions, the Court simply cannot ignore the formal, pleaded basis on which the Kaurareg People, ably represented by experienced lawyers, put their native title claim to areas that included Warral and Ului, and specifically mentioned Pithalai. The contentions of the Kaurareg People themselves have remained consistent with what is in this s 61 application. I do not consider that some more recently formed anthropological and legal modifications since the shared ownership claim was proposed, would be a proper basis to override, or substitute, a different argument about the source or basis for Kaurareg native title rights and interests.
695 Whatever may be the position about how the Kaurareg People explain their rights and interests under traditional law on their home islands, where I accept there appears to be some substantive reliance on ancestral occupation, in my opinion the evidence overall clearly demonstrates that when Kaurareg People come to articulate how it is, before colonisation, their ancestors had traditional rights in the sea away from their home islands, and in uninhabited islands away from their home islands, they rely on the Waubin narrative. That might be unsurprising because it is a narrative about Kaurareg rights, and Kaurareg People themselves in a symbolic sense, radiating out from their home islands. Conceptually, the ‘radiating out’ has similarities to the circumstances Finn J found existed in the Torres Strait communities his Honour was dealing with.
696 Possession of that narrative as the source of traditional rights in the sea and in uninhabited islands may distinguish Kaurareg traditional law and custom from Badulgal and Mualgal traditional law and custom. However, this proceeding is not an inquiry into Kaurareg traditional law and custom in some comprehensive way, and the applicant disavowed that it should be. Whatever might be the explanation for the prominence of the Waubin narrative in Kaurareg accounts of why they have native title in islands such as Warral and Ului, the evidence before me firmly establishes that when Kaurareg People explain their rights to sea country away from their home islands, and to uninhabited islands away from their home islands, they do so by reliance on the Waubin myth.
697 That, in my respectful opinion, is the import of Mr Southon’s article in evidence entitled “The Sea of Waubin: The Kaurareg and their Marine Environment”. Mr Southon says at the start of this article:
The traditional use and control by the Kaurareg of their marine environment can only be understood in the context of their beliefs about ancestral spirits and the supernatural order. Central to Kaurareg marine tenure is the mythological figure Waubin, whose exploits provide the charter for Kaurareg tenure of both land and sea.
(Emphasis added.)
698 Mr Southon then narrates the story of Waubin, and the sea of Waubin, and describes Kaurareg territory, as he did in his 1997 report, as extending:
as far as the channel between Warar (Hawkesbury Island) and Dollar Reef (which belonged to the people of Moa) On the south side of Hawkesbury island is a rock which represents Pithulai a warrior who fled Murulag Island, driven by the ever-jealous Waubin. On the west side of the island lies another rock which represents lbibin, another warrior who fled Murulag for the same reason. These two mythological figures are said to mark the northern extent of the Kaurareg sea territory
He (Waubin sent them (Pithulai and lbibin) out to the island, they in that place, that’s identification for Muralag … that Pithulai and Ibibin (Billy Wasaga, Kaurareg tribal elder).
699 The State made the following submission at [40], which I accept:
As for the first question, the State submits that the evidence, taken as a whole, strongly supports a finding that, under Kaurareg traditional law and custom, the area of land and sea which constitutes the traditional domain of the Kaurareg people was established by the supernatural activity of Waubin and the other actors in the Waubin stories. Put another way, mythological emplacement of Kaurareg identity in the landscape is an originating basis for the possession of rights. It is not a matter of uninhabited space being made into occupied place by human activity, or of adhi sites simply reflecting after the fact where human occupation has occurred (cf. AS [48]). Rather, for Kaurareg people, the adhi beings established the “primordial occupation and possession” of the area in which their human ancestors could exercise traditional rights and exert traditional authority—and thereby occupy the area.
700 The Kaurareg lay witnesses made the position very clear, in my opinion. For example, in the evidence of Naton Nawia:
MS KIDSON: When you talk about a story place, do you know the word adli, is that the same as an adli site?
NATON NAWIA: (Kala Lagaw Ya spoken)
INTERPRETER: Yes.
MS KIDSON: What words did your father use, did he use story place?
NATON NAWIA: Adhidlgal.
MS KIDSON: He used adhidlgal?
NATON NAWIA: Yes.
MS KIDSON: And those are places where there’s a stone or a rock, is that right?
NATON NAWIA: Yes.
MS KIDSON: So he did explain under Kaurareg law, do the story places or the adli sites, do they tell you where Kaurareg country is or where it goes to?
Do they show you, do they show you where Kaurareg country is?
NATON NAWIA: Yes. (Kala Lagaw Ya spoken)
INTERPRETER: Yes, the adli’s tell us, tell you where the boundary is.
…
MS KIDSON: So you just said, tell you where the boundary is, so did your father describe it that way?
NATON NAWIA: Yes.
MS KIDSON: Did he say that adli sites tell you where the boundary is?
NATON NAWIA: Yes, with wandering, we don’t go near – stay outside.
701 Mr Nawia went on to say that where an adhi is on an island, the whole island is Kaurareg. This, as I understood his evidence, was what he suggested initially was the position with Warral, although later in answer to some further questions from Ms Kidson, Mr Nawia said his father told him differently:
NATON NAWIA: Yes. My father told me Warral belongs to here.
MS KIDSON: I’m sorry, I didn’t hear you Mr Nawia.
INTERPRETER: (Kala Lawal Ya spoken) Yes, that’s what his father said. Warral belongs to the Mualgal because Pithalai stands outside.
MS KIDSON: So your father didn’t see Warral as belonging to Kaurareg people?
NATON NAWIA: Yes.
MS KIDSON: Are you saying this because you agree with that statement, is that correct, your father didn’t think that Kaurareg people owned Warral?
NATON NAWIA: Yes, because that rock is on the side there, on that edge.
702 I am satisfied that in this passage Mr Nawia was genuinely relating what his father had told him. That account conflicts with his earlier account about the whole island belonging to the Kaurareg People. The two pieces of evidence could be rationalised because in the second instance Mr Nawia is clearly explaining his father told him Pithalai stands outside Warral and not on Warral.
703 With the sole exception of the one piece of evidence from Fr Tom about fish traps, the Kaurareg lay witnesses all turned to the Waubin narrative, and Pithalai in particular, for their explanation about the source of their native title in Warral.
704 One matter that Dr Murphy explains in his 2015 Warral and Ului connection report is revealing about the attitude of the Kaurareg to their claim over the two islands. At [69] he says:
At the meeting the claim group representatives acknowledged that it was important that my connection report contain some account of the dispute that had existed over the question of who holds rights and interest in the claim area, however they were reluctant for me to include a critical analysis of the Kaurareg mythology of Waubin and Pithalai, and of the function that myth has in the normative system by which rights and interests in lands and seas are distributed between groups. The reason for this reluctance was that the formerly disputing groups have agreed to set aside their differences and acknowledge that each of the others also has the same rights as themselves in the formerly disputed area, and there was concern that if the former differences were to be a focus of this report it may endanger the acceptance of the agreement among the broader groups at some future point in time. Given the central place that the Waubin story holds in the constitution of the Kaurareg cultural and social identity, a critical anthropological and historical analysis of this myth complex may also be taken to be insensitive and offensive.
705 Dr Murphy was not cross-examined on this account in the present proceeding. What this passage reveals is that there was a real consciousness amongst Kaurareg People, their representatives and experts such as Dr Murphy about the challenges of establishing, if they needed to, that by their traditional law and custom their rights in land and waters had the same source as other Torres Strait Islanders. These kinds of past acknowledgments of the challenges were absent from the evidence in this proceeding, or glossed over, as were many of what I have found to be the insightful features of Mr Wood’s 2015 report.
706 Indeed, at the end of his 2015 report, Dr Murphy refers to his earlier “critical analysis” of Mr Wood’s account of the Waubin myth, and then expressly declines to repeat it, or bring it into consideration in the 2015 opinions. He explains that is because (at [116]):
I have not reproduced that analysis here for several reasons. Firstly and most significantly, to subject the myth of Waubin to critical scrutiny is potentially offensive to Kaurareg people, for whom Waubin is very much more than mere story – as Wood describes above, Waubin is integral to Kaurareg self-conceptualisation and social identity. Following from this, in a context where the Badulgal, Mualgal and Kaurareg peoples have come to an agreement that recognises all three as holding rights in a formerly disputed area of land and seas to intervene with an anthropological argument could endanger the agreement by antagonising one or other of the parties to it. Thirdly, this report is intended to go to the State of Queensland for their assessment before entering into substantive negotiations on the terms of a potential consent determination in favour of all three groups together. The analysis of the myth of Waubin which I set out in my previous report would not be accepted by the Kaurareg people and is not agreed by Ray Wood. For the purpose at hand it is also unnecessary.
707 That analysis was not repeated by Dr Murphy in this proceeding either, and he was not cross-examined about it. As I have found, it is not necessary for the Court to make findings about what is the ‘correct’ account of the Waubin myth. The Court must make findings about what the evidence establishes in terms of the Pithalai narrative and how it gives rise to Kaurareg rights in Warral (putting Ului to one side), but in doing so the Court takes the evidence before it, rather than pronouncing on any ‘correct’ version of the narrative.
708 What these passages from Dr Murphy illustrate is that the applicant’s experts have at times de-emphasised opinions, or analyses, that may not be as supportive of, or consistent with, the shared ownership claim. I do not criticise them for this shift; it is understandable at a human level. These passages support my view that the shared ownership claim is the result of a post-colonisation agreement and does not reflect the position which is more likely than not to have prevailed before colonisation.
The application of the Waubin narrative to Warral and Ului
709 Having concluded that the correct way to approach the evidence in terms of whether Kaurareg People have native title in Warral and Ului is through the Waubin narrative, it is then necessary to make findings about what the evidence establishes in terms of the account about Pithalai.
710 One of the main features of all the evidence about Pithalai is the lack of consistency in the narrative about this aspect of the Waubin myth. I consider I should take that lack of consistency into account. There may be many larger questions of how the Waubin narrative does or does not support Kaurareg native title claims to the sea and to uninhabited islands away from the home islands. For example, the Badulgal respondents submitted in this proceeding that:
There is insufficient evidence to be satisfied that the existence of an adhi has any normative function as a marker of possession of the either the adhi itself or any adjacent or surrounding island or reef.
711 These are large questions which I do not consider it is necessary or appropriate to incorporate into my reasoning in answering the separate questions. I am firmly persuaded on the more specific evidence about Warral and Ului, without delving into these larger questions.
712 There are at least two competing narratives in the evidence about whether the Pithalai aspect of the Waubin myth does or does not give Kaurareg native title in Warral. These narratives come from different groups of lay witnesses. This division existed despite each group including people who identify as having Kaurareg connections, and despite all these witnesses giving evidence that they support the shared ownership claim. The lack of consistency itself is probative against the proposition that Warral belongs to Kaurareg People under their traditional law and custom, let alone whether it traditionally belongs to the Kaurareg People as country shared with Badulgal and Mualgal.
713 I accept the State’s submission that in one group were the Mualgal-identifying witnesses who were descendants of Wees Nawia, a Kaurareg man. Mr Wees Nawia was removed to Mua when he was 17, grew up on Mua, became the long-serving Chairman of the Kubin Council, and on all the evidence was a powerful and influential figure in this region. These descendants gave evidence that Pithalai stood ‘outside’ the island of Warral, and for this reason, Kaurareg did not own Warral; it was not their country. They were Naton Nawia, Flora Warria and Nazareth Adidi. To this list can be added Lillian Bosun, a witness in Akiba.
714 There is also Pastor Kaitap, whose evidence on this issue was derived from what he was told by Wees Nawia.
715 I have extracted Mr Nawia’s evidence at [700]-[702] above. There was some confusion in aspects of his evidence, but I consider what he told the Court about Pithalai was his honest and reliable account of what his father had told him. Like the other witnesses, I consider Mr Nawia took very seriously giving an account of what his elders had told him, especially someone like his father.
716 I found Mrs Warria to be a persuasive witness, and reliable. She is a granddaughter of Wees Nawia. On this matter her evidence was as follows:
MS PHILLIPS: And when – are there other – excuse me, I withdraw that. Are there other family – who out of your family have you been to Warral with?
FLORA WARRIA: With my siblings and Granddad Wees and Aka Lizzy. And one time we went to – went with them on the dingy to TI which was calm weather. We went there and he showed us. We went to Waubin and touched the rock, and he said, “This one I think Waubin.” And he showed us where the baidamal baba was that his weapon that he fought with. And then we – he went over – we went over to Horn Island to see (Ataila Kiatom), and that’s – that’s Uncle Pioto’s dad. And then on the way coming back we came through number 1 and we went there and he showed us Pithalai, and he said Pithalai is out here on the sea.
MS PHILLIPS: So, that was a trip with your grandfather - - -
FLORA WARRIA: Yes.
(Emphasis added.)
717 Later in her examination-in-chief, Mrs Warria expanded on this:
MS PHILLIPS: And what’s the position for Kaurareg in relation to Warral and Ului?
FLORA WARRIA: That position probably is because of Pithalai.
MS PHILLIPS: And does that give them a connection there?
FLORA WARRIA: Well, he’s standing outside on – in the sea. I don’t see why. Because if it was his land or his island, he would have gone way up into the land, you know, up to the hills or something because that’s another story that I don’t want to – but if I have to.
MS PHILLIPS: Well, just – we’re just talking about Pithalai. Whose story is that?
FLORA WARRIA: The Kaurareg.
(Emphasis added.)
718 Mrs Warria in my opinion is, diplomatically, confirming that her understanding is that Kaurareg rights through Pithalai stop short of Warral.
719 She confirmed this account in cross-examination, in more detail:
MR SMITH: Yes. That happens doesn’t it? He – but he didn’t go up onto the island, that’s what your grandfather told you, that island being Warral, is that correct?
FLORA WARRIA: Yes.
MR SMITH: Because Pithalai could not go up onto the island, he stood in the sea? That’s what your grandfather told you?
FLORA WARRIA: Yes.
MR SMITH: And he told you that – he told you that – he actually told you that Pithalai could not even put a leg on the reef, is that right?
FLORA WARRIA: Yes.
MR SMITH: And the reason is, is because Warral is not Kaurareg country, is that right?
FLORA WARRIA: Yes, that is because of the (cord) of the tetel malki malki.
720 I find the word “cord” is a typographical error. I find it is more likely than not that Mrs Warria said “law”. This rule – tag malki malki tetel malki malki – was explained by Mrs Adidi in evidence as “[y]ou don’t - you can’t walk on the other man’s island and thou shalt not steal”. Mrs Warria confirmed this herself, with a slightly different translation, later in her evidence:
It means that you do not touch what – what isn’t yours and you cannot enter into an area that is not – that doesn’t belong to you.
721 Mrs Bosun, in Akiba, gave evidence that was consistent with this account: see [386]-[405] above. The State summarised her evidence in its submissions at [65] and I accept her evidence is very clear on this issue. Although I did not observe her evidence, Finn J treated it favourably, and no basis was advanced to doubt it, especially since the evidence in Akiba was further removed from the heat of the evidence in this proceeding.
722 Mrs Adidi’s evidence was, at times, less clear. It is summarised in the State’s submissions at [67]. I accept Mrs Adidi was doing her very best to respond to the questions she was asked, although my impression was she found giving evidence a somewhat daunting task at times, especially in terms of concentration and understanding in English and through an interpreter. This is the extract from her cross-examination by Mr McAvoy, where he attempts to have her clarify what her understanding was from her father:
MR McAVOY: Mrs Adidi, I’d just like you to tell me and the Court what your father said about Pithalai to you and your brothers and sisters.
NAZARETH ADIDI: Yeah, well he just yarn about Pithalai like Adhi is standing below Warral because we ask him, “Dad, how come them big rocks”, one with like a - when you look a lot it’s like a human there. You can look that head on top and you can see solid and then he said, like, that one Pithalai. He just like Waiben on Booby Island, them Adhi.
MR McAVOY: Did he tell you where Pithalai stands?
NAZARETH ADIDI: Yeah.
MR McAVOY: Did he say that Pithalai stands outside Warral?
NAZARETH ADIDI: No, that one, that’s an island rock stand outside. Pithalai is on that land bit close to the water when high water was taking you can get to Pithalai.
723 To this point, Mrs Adidi is explaining, in my view, that Pithalai is the rock on the beach, not the one out in the water. She then says that specifically:
NAZARETH ADIDI: No, he now say it’s standing there, the beach one on this side.
724 Mr McAvoy then sought to put her brother Naton Nawia’s (different) evidence to her. This did not go smoothly. Mr McAvoy changed tack a little and asked Mrs Adidi about her understanding (in evidence given earlier) that Warral belonged only to Mualgal, then asking her how that sat with her account of the Pithalai story. Again, this line of questioning was not smooth sailing, although both counsel and Mrs Adidi were doing their best, I accept:
MR McAVOY: Do you say - you’ve given evidence today that Warral belongs to Mua.
NAZARETH ADIDI: Mualgal people them island were down.
MR McAVOY: Warral belongs to Mua.
NAZARETH ADIDI: Yeah.
MR McAVOY: Not to Kaurareg.
NAZARETH ADIDI: That one belong Mua, Mua people.
MR McAVOY: So it doesn’t matter that it’s that Pithalai is on top of that Warral?
NAZARETH ADIDI: We don’t mind.
MR McAVOY: You don’t mind.
NAZARETH ADIDI: Yeah, stand up there because when you diver, what do - the Mualgal talk, you know that.
MR McAVOY: This is a very important question, Mrs Adidi. Under Mualgal law and custom, Mualgal own Warral and not Kaurareg even though Kuarareg have Adhi at Warral. Is that right?
NAZARETH ADIDI: What do you mean by that?
MR McAVOY: Sorry, I’ll put it another way. Mualgal owns Warral; that’s your evidence?
NAZARETH ADIDI: Yeah.
MR McAVOY: And so where Pithalai is doesn’t matter because it’s owned by Mualgal.
NAZARETH ADIDI: It doesn’t matter whether Mualgal or Kuarareg people because we intermarried.
MR McAVOY: I’m asking you about Mualgal law. I know you have a Mualgal responsibility.
NAZARETH ADIDI: Yeah.
MR McAVOY: And a Kuarareg responsibility.
NAZARETH ADIDI: Yeah.
MR McAVOY: I’m asking you about Mualgal responsibility now – Mualgal law. Your evidence is Mualgal owns Warral. You’ve said that many times.
NAZARETH ADIDI: Yeah, the island.
MR McAVOY: That island.
NAZARETH ADIDI: Mmm.
MR McAVOY: And Kuarareg doesn’t, that’s right?
NAZARETH ADIDI: I don’t say Kuarareg doesn’t. It doesn’t matter. Kuarareg people own that and Mualgal own that because Kuarareg are one people because dad said these islands is ours. He’s a Kuarareg man.
MR McAVOY: Yes, but Wap Charlie also said this is our island.
NAZARETH ADIDI: Yeah. That’s from - Mr Nawia made that, Wees Nawia.
MR McAVOY: Is your evidence now that Mualgal don’t own Warral?
NAZARETH ADIDI: No, I didn’t say that. Mualgal own. That’s goes to Kuarareg people. We not going to give Kuarareg.
725 Mrs Adidi was, in my overall impression of her, a staunch supporter of the shared ownership claim, but as this evidence demonstrates, that is because of the close family ties between Kaurareg and Mualgal, and the fact her father was Kaurareg. I find that her understanding of the traditional, pre-colonisation position was that Warral belonged to Mualgal. I find she was not especially clear in her own understanding about the Pithalai story for two reasons. First, the direct accounts she heard from her father were as a young child and she is now a person of mature years. Second, because, to her mind, it did not matter so much. Since her father’s time, Kaurareg and Mualgal were so closely connected that Warral should be treated as belonging to them both. That is what I take from her evidence. So I do not consider her evidence is as clear on the ‘Pithalai stands outside’ proposition as the State might suggest.
726 The last witness the State put in this ‘Pithalai stands outside’ grouping was Pastor Kaitap. His evidence was the subject of challenge by the Badulgal respondents, but, as I understood it, this was more in relation to his evidence about Ului, which I discuss below. Pastor Kaitap’s evidence was that what he knew about Pithalai came from Wees Nawia. Wees Nawia is his maternal great grandfather.
727 This was the extent of his evidence:
MR SMITH: Okay. You spoke to Wees Nawia about Pithalai, is that right?
OPETA KAITAP: I never spoke to – he speak to us and he let us know. I didn’t speak to him about Pithalai.
MR SMITH: So, he never spoke to you about Pithalai?
OPETA KAITAP: No. Like, he just mentioned that there’s Pithalai at Warral.
MR SMITH: And he told you that it was the rock off the shore, not on the shore?
OPETA KAITAP: That’s what he just told us that Pithalai is at Oxbury.
…
MR SMITH: And in telling you that story, he told you about Pithalai?
OPETA KAITAP: Pithalai not much, but Pithalai is – like, he just tell us that Pithalai is in front of – in Warral, and that’s all I heard from him
MR SMITH: He didn’t tell you that after a battle between Pithalai and Waubin, Pithalai ran away from Hammond Island?
OPETA KAITAP: No, he just been told me a story about Waubin and how Waubin fight and he take womans and stuff like this, and that’s what he told me, but not much about Pithalai.
MR SMITH: In answer to a question you told the court that Warral is country of Mua, is that right?
OPETA KAITAP: That’s correct.
MR SMITH: And not Kaurareg country?
OPETA KAITAP: No.
728 It was the parties’ common position that references to “Oxberry” in the transcript were typographical errors, and were instead references to Hawkesbury (that is, Warral). I infer that the same is true for this reference to “Oxbury”. Whatever Pastor Kaitap said, it does not change my view of his evidence. I found he had little depth or reliability to his evidence about Pithalai. His recollection seemed vague, understandably so because he was only a young teenager during these conversations with Wees Nawia. On his own evidence, he was not told much about Pithalai. He identifies as Mualgal so it is not his story. However, his last answer confirms that, whatever he was told, it did not lead him to have any understanding that Kaurareg had traditional rights in Warral.
729 All Pastor Kaitap had said in examination-in-chief was this:
MR BLOWES: You mentioned down on the sound end of Warral the word “Pithalai”. Do you know anything about that story or that - - -
OPETA KAITAP: Not - like never been handed down about what’s Pithalai but we know that Pithalai is at Warral and - but not know about these stories.
MR BLOWES: Do you know whose story it is?
OPETA KAITAP: Well, actually we know from our forefathers they was telling that you know Pithalai is from Kaurareg.
730 I do not find Pastor Kaitap’s evidence about Pithalai persuasive one way or the other. I am not persuaded his evidence is properly described as fitting into the ‘Pithalai stands outside’ group.
731 Nonetheless, I accept the State’s submissions that there are three witnesses – Lillian Bosun, Naton Nawia and Flora Warria – who have all given a reliable, volunteered account about Pithalai that comes from Wees Nawia and which places Pithalai ‘outside’ Warral. I accept that this indicates that under traditional law and custom Kaurareg do not have rights in Warral. Mrs Warria’s invocation of the rule tag malki malki tetel malki malki is especially telling.
732 On the other side of the debate are the Kaurareg witnesses, most of whom located Pithalai as the rock on the beach at Warral, and relying on this, gave evidence that their understanding was that this location meant that, traditionally, Kaurareg People had rights in the whole island of Warral. This was an account with which Mr Wood agreed, including because of the field trip he took with Kaurareg informants in 2001.
733 During re-examination, Fr Tom was asked to clarify his understanding about Pithalai, because in examination-in-chief he had said that as a boy his father had pointed Pithalai out to him as a rock in the water:
MR BLOWES: I just want to ask you this question and maybe the interpreter will need to interpret it for me. Does it make any difference to the meaning or the importance of the story whether it’s on the beach or in the water? Perhaps you could translate?
INTERPRETER: [Kala Lagaw Ya Spoken]
FR PAUL TOM: Well, I believe that when my daddy first time to the rock, I thought that was the rock but you know when Native Title thing started and high water mark or low water mark - low water mark. Well, if he’s on the reef of the island, that’s - he can be part of the island.
MR BLOWES: Yes. But from the story that you learned about Waubin and all those warriors and where they been go to and stop there, does it make any difference whether he stops on the water or stops on the beach?
FR PAUL TOM: [Kala Lagaw Ya Spoken]
INTERPRETER: The home reef from the island. If that adhi is on the home reef it’s part of the land, and it shouldn’t make any difference.
734 Fr Tom had earlier given evidence that his father had explained to him about Kaurareg boundaries and that Warral was Kaurareg country:
FR PAUL TOM: Yeah, he was talking about kaiwalagal, the boundaries.
MS KIDSON: And so did he say that that was marked by all the adhi sites; is that how you - - -
FR PAUL TOM: Yeah. When we used to go all around the island, he always said, “Son - island - this is our island” wherever we go. And that’s what he said.
MS KIDSON: So he would say, “This island belongs to our people”?
FR PAUL TOM: Kaurareg, the Kaurareg, kaiwalagal what he call it.
MS KIDSON: Did he ever actually say that Warral belongs to Kaurareg people?
FR PAUL TOM: Yeah, in that time like, you know, because when we went through there, he was talking to the rock and he said [Kala Lagaw Ya Spoken]. He got that name for islands there, waralsina.
MS KIDSON: I’m going to need to have that translated.
HER HONOUR: Mr Repu, you’re going to have to translate.
FR PAUL TOM: [Kala Lagaw Ya Spoken]
INTERPRETER: What Father Tom is trying to say is Warralsina is a type of terminology used in expressing that there is Warral, or another one is Warral.
735 Thomas Savage’s understanding is that Pithalai stands on the beach at Warral’s southern end. Mr Savage believes that the presence of adhi on Warral makes that island and its adjacent areas part of Kaiwalagal:
MR BLOWES: I just ask you a couple of more questions. Do you use that word “kaiwalagal”?
THOMAS SAVAGE: Kaiwalagal.
MR BLOWES: And what do you understand that word to mean?
THOMAS SAVAGE: Kaiwalagal means places for Kaurareg, boundaries, areas, Dreamings, islands for Kaurareg region. You know, kaiwalagal means a region, yeah.
MR BLOWES: Is it only of that land or is it also about sea and reefs and islands and so on?
THOMAS SAVAGE: Yeah, sea, reef, island, rock, sky space if you want, yeah.
MR BLOWES: Are there any gaps in that area or is it like a blanket covering the whole area?
THOMAS SAVAGE: It’s a blanket covering the whole area.
MR BLOWES: Now, where you’re talking about the Kaurareg community islands like Horn Island and Prince of Wales and so on, how come - what do Kaurareg people say about them? In other words, why do Kaurareg people say “Well, they’re our islands.”
THOMAS SAVAGE: Because of, you know, adhi Waubin where he - where he’s situated and adjacent to, yeah.
MR BLOWES: And which people have - are there some people who have always lived on those islands on kaiwalagal?
THOMAS SAVAGE: Yeah, Kaurareg people there.
MR BLOWES: So Kaurareg ancestors?
THOMAS SAVAGE: Ancestors, yeah. Take it right back, yeah, to ancestral times.
MR BLOWES: And is that important in understanding those islands and where Kaurareg come from?
THOMAS SAVAGE: Yes, very important.
736 Neither Enid Tom nor Eliziah Wasaga gave evidence of any clear understanding about the Pithalai story, nor where Pithalai was said to be located, although when asked to draw its location Ms Tom located Pithalai on the beach rather than in the water. Without any disrespect to either witness, I do not consider their evidence displayed a sufficient clarity of understanding from their elders about this matter.
737 Thus, not only is the lay evidence for the applicant capable of falling into two groupings, on the Kaurareg side, there is relatively clear evidence only from Fr Tom and Thomas Savage.
738 I do not accept the State’s submissions (at [75]-[77]) that the expert evidence does not assist the resolution of the question to any great extent.
739 Mr Wood’s account of the significance of the Waubin myth and the location of Pithalai in his 2022 report is as follows:
Which stone at Waral is Pithulay?
I am aware of differing versions among at least Kaurareg and Badulgal of which rock at Waral is the metamorphosed body of Pithulay (alt. Pithulai), spelt occasionally in the transcript as Pithulai but most often misspelt as “Pithalai” and “pithalia.” In one version it is a large upright boulder on top of rocks on the edge of the beach, dry at low water but surrounded by shallows at high tide, and another off the beach on the edge of the reef, the top of which is emergent at low water. The two rocks can be seen in Figure 3 below. I notice this variation in the versions of the witnesses in the Thursday Island hearing, some by the same witness, while some are undecided, seeming to say one thing in one utterance and the other in the next (e.g. Paul Tom T148, T154, T171; Thomas Savage T273 to 278; Eliziah Wasaga T365-6; Naton Nawia at TT476, T489-49; Nazareth Adidi T599; Flora Warria T650, 654; Titom Nona T1077-8).
The only version I was aware of from 2001 to 2015 is the boulder on the beachline, because it is the rock pointed out to me, Kevin Murphy, John Burton, and a number of Kaurareg men on a visit to the island on October 15, 2001 by the late Billy Wasaga and Brian Namai. Other informants who identified Pithulay as this boulder to me include the late Wap Charlie, who was Mualayg, and the late Palerina Bagi, also Mualayg, who told me (pers comm Oct 18, 2001) that Pithulay is “ston stanap deya lo front Waral, name blo dat ston Pithulay.”
While at Waral on October 15, 2001, Brian Namai sang part of a song he learnt in his youth about the current running and rising up onto Waral, and containing the words adhilag and adhi maalu (adhi-animated ground and water respectively), and told me that according to this song the whole island:
Pithulay, em adhi, this island, that[s] him – so this island, [is] adhilag.
I note that Naton Nawia said the same in the Thursday Island hearing (T487).
Hence it was a surprise to me to find in 2015 that there is another candidate for the correct rock, namely one submerged at high water just off the beach’s fringing reef, which has an English name, Squat Rock. I had been told Squat Rock is the metamorphosed body of a mythological animal, my main two informants being Brian Namai (pers comm, in situ at Waral, October 15, 2001), and Pearson Wigness (pers comm, Horn Island, Aug 14, 2014). Brian’s information was scanty: just before the helicopter was to leave, I found him at the water’s edge looking at the rock in the water, of which he told me, ‘that’s a Story too,’ adding it is a marine animal. He seemed unsure which animal, leaving me to wonder if it was a mythological creature rather than a known species, but I forgot to follow this up with him later.
On October 18, 2001, Palerina Bagi gave me the name Mudhulai or Moedhalai for Squat Rock, citing her deceased Kaurareg husband Lou Bagi. The name is rather like Mudulai, a rock in the water off Poid, Moa. I checked it with her several times and she maintained the dental stop /dh/, but I have not had the opportunity to check whether the Moa site name is the same. Her production recalls the word moedhalai ‘turtle (sp.)’ sometimes said to be the Olive Ridley Turtle, but glossed by Kennedy as ‘female turtle.’ Palerina may have conflated this name with a similar name and site constituents on Moa, although she was certainly attributing it to Waral at the time.
In August 2012, Wigness Pearson told me unhesitatingly that Squat Rock is a kaygas ‘Shovel Shark,’ and is connected with the Waubin and Pithulay narrative. In addition, prior to our visit to Waral, on October 1, 2001 at Horn Island, Billy Wasaga mentioned Squat Rock, leading me to seek clarification as to whether that is Pithulay, to which he said no, Pithulay is on shore, but Squat Rock is “part of the same Story,” and he would show me once we got there. Earlier again I notice that in my notes Pearson Wigness (pers comm May 22, 1999 at Horn Island) told that Pithulay and Squat Rock are at Waral and are part of the Waubin Story.
Considering that most if not all mythological narratives in the Strait zone have multiple versions – versions as disparate as one that has some actors coming from Cape York and another has them coming from the Fly Delta or from west Papua – the existence of two versions about Pithulay is unsurprising. Even versions collected over 170 years from Kaurareg informants themselves exhibit differing versions – see those cited in Brierly and Haddon above, and Lawrie’s (1970:6-8) version differs in some details from any that Southon or I have encountered, while Wap Charlie (pers comm Oct 10, 2001) gave me a version in which it is not Badhane who steals the baydhamal baba and cuts off Waubin’s leg, but Pithulay. The details of the two versions under attention at present show how easily they can have diverged over time among mixed lugger crews and at Badu and Poid, and especially as even the large boulder is surrounded by water at times and could be seen to be from a boat, and both rocks are held to be associated with the Pithulay narrative by some Kaurareg. Even then, all versions are closely cognate. This is in the nature of oral mythology, as long as it remains a living tradition in active transmission.
During a meeting at Kubin on August 14, 2015, and in subsequent discussion with Kevin Murphy and with some Kaurareg people on dates I do not recall, I became aware that some Badulgal and some Kaurareg differ about whether it is significant that Pithulay is the rock in the water or is the boulder on the beachline, and if the former then it means he stayed away from what he recognized as Badu property, or if on the beach it means it is his property. I never heard either position put prior to 2015. I notice that in the transcript of the Thursday Island hearing, these two varying meanings are implicit at several points, such as on T365-6, where My McAvoy puts it to Eliziah Wasaga to assume for a moment that Pithulay is in the water, and T1078 at [20] where Titom Nona mentions that during his movements to and from Thursday Island he learnt that people had varying views about which is the Pithulay stone.
I am not persuaded that anything of (customary-)legal weight hangs on the identification of these two rocks. Once the matter is placed in the context of similar myths and their sites in the region, the proposition that whether the rock is in the water or not is determinative appears very weak.
For example, the transformation site of Waubin himself, as detailed above, is Hammond Rock, standing well out in the water off Hammond Island as can be seen in Figure 4, and all the other characters and objects are below high water. Yet he is still the guardian and original owner of the whole of the Kaurareg islands, and which Kaurareg often abbreviate to simply ‘Hammond,’ in which Hammond Island and Hammond Rock are not distinguished. For example, when the late Palerina Bagi spoke with me on October 18, 2001, she characterized what her Kaurareg husband told her regarding all Waubin sites, including Waral, White Rock, and Nelgi as “blo Hammond,” and Kaurareg people as “Hammond people,” where her “Hammond” stands for the Kaurareg islands as a whole.
Paul Tom (T77-8, 96 to T117) says his views derive from a poorly remembered incident in his early childhood when his father pointed out a rock which he seems to most think was in the water, but which he was not strongly attentive to, and his view is influenced by his knowledge that adhi sites “would usually stand on the [seaward] edge of the reef of the island.” Yet he also says “every adhi, they start on the edge of the land, on the sea.” He thinks his father might have indicated Pithulay is in the water, but still holds that it means Waral is a Kaurareg place (T74), and he accepts Billy Wasaga as having clarified that he’s the big boulder on the beachline, and then also says his father said “its right up there,” suggesting, in my reading, that it was much more visible, and that (T117). His father was talking about “washing that rock,” which means the waves washing over Squat Rock, or a rite involving water at the boulder on the beachline. His information is ambivalent about the location, and the in-the-water and edge-of-beach options indistinct.
For further comparative context, when I was taken by Fr John Manas to the Thothalay site on the north coast of Moa, I saw that some of the boulders comprising the characters in the myth of Thothalay are on shore, and some go out into the water. Yet it is not said that this seaward progression means that the Moa mythic ancestors are marching into the sea to join the community of the sarupal (deranged shipwreck dead at the bottom of the sea), and thereby stating that they abandon Moa to the Badu and Mabuiag allies of the 19th century.
There are also the cases of Booby Island and Maizab Kaur, which are so low-lying and far out to sea as to be out of sight of their respective home Islands, and in their mythological narratives they stop at points, but are told they are still visible and are directed to keep going until they are no longer are (see [79] and [97] above). Yet in both cases these sites are held to attach and secure, by supernatural power, the islet and reef features and surrounding waters to their home island source. Numerous other examples in the region could be listed.
(Original emphasis, figures omitted.)
740 I accept Mr Wood’s own evidence that his understanding from the field trip was that Pithalai was the rock on the beach. Mr Wood is an experienced anthropologist in this region, and has a long relationship with Kaurareg People. Despite the State’s criticism of his field notes, I consider it is appropriate to give some weight to his own understanding of the outcome of that field trip, and to his explanations in the extract above.
741 In his report in this proceeding, Dr Murphy said:
When I went to Badu in July 2014 to conduct research specifically directed at the issues of concern in this report I found that there was a common understanding among the Badulgal people there that the rock which the Kaurareg people identified as Pithalai was Squat Rock, standing in the sea off shore from the southern end of Warral. At a meeting of several Badulgal elders I told them that this was not my understanding, that the rock which Billy Wasaga had identified as Pithalai to me was on the island itself, and was unique and easily identified by the fact that it had rock art on its side. They were evidently shocked to hear this, and told me that at a meeting which Kaurareg people had attended at Badu some years before to discuss the issue they had asked them which rock they were referring to and were told that it was the rock standing outside the front of the island.
742 I am unable from the state of the evidence to make a finding as to whether the presence of rock art on the rock on the beach is probative of a pre-colonisation Kaurareg presence on the island, or of a connection between the Waubin narrative and Warral, or indeed even whether the rock art has any connection to the Kaurareg People. Troy Laza’s evidence is that his uncle identified the rock art as belonging to Kaurareg. Eliziah Wasaga also identified the art as associated with Pithalai, but in cross-examination by Mr McAvoy, he said he was not aware about rock art from the Torres Strait Islands.
743 Mr Wood was cross-examined about rock art by reference to Mr Bruno David’s archaeological report. Mr Wood was not familiar with Mr David’s report and said he had only had a “fast read” of it. He agreed it dealt with the art he had seen on the rock on the beach to the south of Warral in 2001. His evidence was that during this visit the art was “interpreted in conversation as a snake”. He agreed with Mr McAvoy that, going from the pictures in Mr David’s report, which identified a “snake painting” and a “personal spirit painting”, that the “snake” was “very similar” to a picture in the report of a tabu scar design from Mabuiag. He also agreed that snake motifs were found widely across the region, including Cape York, and that he couldn’t discern from the image who the artists were. I do not consider that there is sufficient probative evidence to connect the rock art with the Kaurareg People, nor with the Waubin narrative.
744 On Mr Wood’s account, the rock further out in the water to which the Mualgal witnesses referred, which he called Squat Rock, has its own story related to Pithalai. No lay witness told such a story. There is insufficient probative evidence to add a second story about a second rock at the southern end of Warral as part of the Waubin narrative supporting the claimed source of Kaurareg title in Warral. Squat Rock is in any event outside the claim area. However, this illustrates the lack of consistency in the evidence about the Pithalai narrative as it relates to Warral.
745 I agree with Mr Wood’s opinion that the placement of Pithalai may not be quite as critical as sometimes suggested during the proceeding. However, I see the consequences of that statement as being different from how I understand Mr Wood might see them. Mr Wood observed, and I agree, that both the rock on the beach with the art on it, and the rock in water outside the claim area (Squat Rock), can end up being surrounded by the sea on some tides. Both rocks might be, at any given time, ‘in the water’. Subject to the precise claim area boundaries, but looking at attachment 1 to these reasons, the latter point might even mean that neither of the rocks falls within the claim area itself, because the boundary of the claim area is the mean high water mark on spring tide.
746 Putting that last point to one side, in my opinion, what is more significant is that this general location – a rock at the very southern point of Warral – is identified in the telling of the Waubin story as where Pithalai turned to stone. All witnesses who gave evidence on the topic of Pithalai agreed there was a rock, and that it was where Pithalai turned to stone. The versions of the Waubin narrative in earlier sources relating to Pithalai are broadly consistent with this account. From the Court’s viewings around Warral, it is clear there are plenty of other rocks around the island – but no evidence has been given in the same way about stories attaching to any other rocks, apart from this rock and Squat Rock. Therefore these basic elements of the Waubin narrative about Pithalai can be accepted. They do not assist the applicant’s shared ownership case, however.
747 I find it is more likely than not that, whichever of the two rocks is identified as being the place where Pithalai turned to stone, it is understood as a Kaurareg country boundary marker. That is the firm impression I have from cumulatively considering the evidence about the Waubin narrative. The placement of the Waubin story on one of those rocks, at the very southern end of Warral after the sea of Waubin has radiated out from the Kaurareg home islands, and that part of Warral being the first part those journeying from the Kaurareg home islands encounter if they take a route in a westerly direction rather than easterly around Muknab, suggests it is a boundary marker. It is a limiting feature, locating the external-most reach of Kaurareg country. Although Mr Wood advanced a thesis about this narrative really being a way of attaching (under the sea and through the reefs and other seabed features) Warral to the Kaurareg home islands, and Fr Tom made a similar observation, this mechanism for ascribing ownership to an entire island was so under-developed in the evidence that I cannot accept it.
748 Even on the bare narrative in [746] above, the evidence as a whole tends against the Kaurareg People having native title in Warral itself, rather than their (sea) country stopping at a point just short of the island of Warral. This outcome is consistent with the reliable evidence of the Mualgal witnesses, which I prefer. I also consider it of some weight that Mualgal witnesses, otherwise aligned with Kaurareg, denied the Pithalai story as a basis of Kaurareg rights in Warral, and denied Kaurareg ownership of Warral.
749 As I explain below, the other aspects of the evidence on the separate questions, aside from the Waubin narrative, whether taken singly or cumulatively, do not persuade me that the applicant has discharged its burden of proof about Kaurareg rights in Warral.
750 The evidence of how any aspect of the Waubin myth might give rise to native title in Ului for Kaurareg People was almost non-existent. There was brief evidence suggesting some rock reefs around Ului were associated with a story about Waubin’s wives, but this evidence (from Naton Nawia) was insufficiently persuasive.
751 The main Kaurareg witnesses said there was no adhi place at Ului, but asserted there were fish traps there. Fr Tom’s evidence was:
MS KIDSON: I just want to ask you a couple of things about Ului, okay, so that other little island Ului next to Warral. I think you’ve already answered a question from Mr McAvoy that your father never told you a story, there’s not a story for Ului; is that right?
FR PAUL TOM: Yeah.
MS KIDSON: And your father never told you about any adhi site on Ului, did he? There’s no adhi place?
FR PAUL TOM: No.
MS KIDSON: And so Ului isn’t - I think you call it adhilgal? Is that right, an island with an adhi site is adhilgal?
INTERPRETER: [Kala Lagaw Ya Spoken]
FR PAUL TOM: [Kala Lagaw Ya Spoken] fish trap on [Kala Lagaw Ya
Spoken] fish trap [Kala Lagaw Ya Spoken] There’s a fish trap there.
…
FR PAUL TOM: Well, probably only when we go to Wednesday Island, you see fish trap there and the fish trap all over wherever the Kaurareg people there. They put all fish trap around.
MS KIDSON: So the fish traps just built by people who are catching fish?
FR PAUL TOM: Yeah, when high tide fish go in; when low tide, fish get trapped.
MS KIDSON: But when your father was telling you about the places that are adhilgal - and I might not be saying that properly - he’s never said Ului was one of those places; is that right?
FR PAUL TOM: Adhilgal is where the adhi is but like - something like when I’m talking about fish trap, when you go to Wednesday Island it’s not adhilgal but it’s the Kaurareg and you see all the fish trap there, and I always forget about that. I shouldn’t be saying that. Wherever you see there’s a fish trap, it’s Kaurareg must have been there. Just like Murray Island, they got all the fish trap, like the island like Wednesday Island.
MS KIDSON: So people besides Kaurareg people build fish traps on the island?
FR PAUL TOM: Yes.
MS KIDSON: So why do you think the fish traps at Ului must be Kaurareg people fish traps?
FR PAUL TOM: That’s the experience they got to caught - caught fish, because in that time there was no line, and some using spears to spear fish. Well, fish trap was the good idea sometimes.
MS KIDSON: But didn’t lots of the island communities build fish traps?
FR PAUL TOM: I don’t know the other islands but I know there where - where Kaurareg people been and they put all that fish traps.
MS KIDSON: And did someone tell you that Kaurareg people had made those fish traps or is that something you think must have happened?
FR PAUL TOM: Well, somebody found that, all them fish trap there, so I might be talk like, you know, that’s all the - only people doing is Kaurareg people and Murray Islanders.
752 This was the only evidence about fish traps at Ului. Mr McAvoy submitted it was no more than an assumption from Fr Tom that the fish traps belonged to Kaurareg. I accept that submission. The Court’s attention was not drawn to any earlier anthropological or archaeological evidence about fish traps on Ului, and none about them being capable of identification as Kaurareg fish traps. There was also no evidence from the Badulgal respondents about fish traps generally, or on Ului, despite what I find to be the much greater familiarity of all the Badulgal witnesses with Ului. There is an insufficient basis to find it is more likely than not that in pre-colonisation times Kaurareg People ventured all the way to Ului to lay fish traps, and were the only people who did so.
753 Thomas Savage was asked about adhi on Ului, but as far as I can see he gave no positive evidence that he knew of any. The State submitted (at [84]):
Thomas Savage did not identify any adhi at Ului but thought the island may be “adjacent” to the Pithalai adhi at Warral because the “continental structure of it” is two peaks on one mountain (T 241.17–24). However, Mr Savage accepted that all the small islands between Badu and Warral and Ului are connected to the Great Dividing Range from Cape York, and that he did not know anything about people living on those islands in the past (T 265.21–266.6).
754 I accept that submission, and it seems to me there was a measure of speculation in Mr Savage’s evidence.
755 Naton Nawia did mention Waubin’s wives, but with little detail:
NATON NAWIA: Yeah, we all will say for that agreement. We all can use, you know, use that island.
MR BLOWES: Was there any talk about whether any ancestors used that?
NATON NAWIA: Yeah, you got the wives there, Waubin’s wives.
756 In cross-examination he said he heard that story from his father, Wees Nawia, about Ului, and that the wives were “standing on top, on the side”. In answer to some questions from Ms Kidson, he repeated that Waubin’s wives were “at Ului”, and that they “all talk in the reefs, yes”.
757 He then gave this answer, through the interpreter, Mr Repu:
INTERPRETER: (Kala Lagaw Ya spoken) His father said that Warral belongs to the Mualgal and Ului belongs to Kaurareg because of Waubin’s wives on Ului.
758 This account is difficult to accept, or give any real weight to, because of the prominence in the evidence about Pithalai, and the contended source of Kaurareg rights in Warral that this story gave Kaurareg People. It is difficult to follow why a much vaguer, apparently less well-known story about Waubin’s wives would be the source of Kaurareg rights in Ului, but Pithalai would not give Kaurareg rights in Warral, which according to Mr Nawia belongs only to Mua. Mr Nawia’s account was not supported by other witnesses such as Fr Tom or Thomas Savage, nor by any of the anthropological evidence to which the Court was taken. Indeed, Dr Murphy’s evidence was that although there is a story about Waubin’s wives turning to stone, until Naton Nawia’s evidence he was not aware of a version that placed Waubin’s wives at Ului. My impression was that Mr Nawia may have become a little confused at this point of his evidence, and concentrating through an interpreter was, I observed, at times difficult for him.
759 Mr Wood’s oral evidence confirmed there was little if any source material available about Kaurareg rights in Ului generally, let alone based on the Waubin narrative:
MS KIDSON: In relation to Ului, would you agree that in the evidence actually before the Court there’s again almost a complete absence of any evidence of the kind that Thomas Savage gives, although Thomas Savage I understand gives that evidence. Again Father Paul Tom, his father had never told him about Ului. He’d been there once for a picnic on a Nona boat and that Tom had never been to Ului, Eliziah Wasaga had never been to Ului and also the evidence was that it’s not been used as a stopover place by anybody, nobody travels there, it’s not on the way to anywhere. So there’s not even a stopover evidence that one has for Warral. I know that in your report you, albeit at a higher level, indicated that you heard less about Ului. So again I’m really asking you, is there any aspect of the evidence in this proceeding that causes you to alter your opinion?
MR WOOD: No, it’s entirely consistent with what I heard from the Kaurareg. I deliberately raised it a few times and said I see that you’re equally strongly claiming Ului, what did you do there and I’d heard people assert that there’s a mythological adhi also there but they said to me it hadn’t been passed down to them and that it was therefore – the information was lost except that they remembered that there was a story there. The only person who told me that I can remember that he went to Ului basically cray fishing was Brian Namai and so the evidence there is consistent with what I was told when I raised it. They said, no, we’ve somewhat lost contact but it’s still part of our ancestral estate, you know. They were much less strong on claiming exclusivity of rights over Ului so, no, there’s nothing in the evidence that leads me to change my opinion. I think it’s quite consistent with what I heard from them outside the court hearing.
(Emphasis added.)
760 I add here that this is another example of Mr Wood choosing to downplay the lay evidence in this proceeding by referring to information he claims to have been given outside the proceeding.
761 I find there is no persuasive evidence confirming that any aspect of the Waubin narrative gives Kaurareg People traditional rights in Ului. As I explain below, the remainder of the evidence, outside the Waubin narrative, does not persuade me Kaurareg People have traditional rights in Ului.
762 I turn now to other topics in the evidence said by the parties to be probative of native title in Warral and Ului. There is the evidence about use of the islands themselves and their surrounding reefs and marine resources and about occupation, through activities such as gardening. There is the role to be played by evidence about permission and by the other shared islands determinations. The Court must look cumulatively at all the evidence before reaching its conclusions. I commence with the evidence about permission, and the debate about what to draw from it.
763 I have separated this out as a topic because often, in native title claims, the granting and withholding of permission, and the ability to exclude others, is a cornerstone of claimant and expert evidence. It is of course often an indicia of exclusive possession, although how it manifests itself in various systems of traditional law and custom may vary, and it is not to be approached with Euro-centric eyes: see Griffiths v Northern Territory of Australia [2007] FCAFC 178; 165 FCR 391 at [127]; Banjima People v State of Western Australia [2015] FCAFC 84; 231 FCR 456 at [33]-[34], [38]-[42]; Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350 at [281]-[285].
764 As Finn J’s findings in Akiba demonstrate, in the Torres Strait both before and after colonisation, where customary rights are concerned, when permission is positively required is less clear in terms of the sea, reefs, cays and uninhabited islands. Survival and sustainability meant that marine resources needed to be widely available. Traditional norms like gud pasin made for successful and sustained communities on home islands, with the full understanding that marine and land resources beyond home islands were an integral part of life, trade and sustenance in the Torres Strait for all communities. Different norms applied.
765 In the Torres Strait, exclusivity gives way to or is qualified by sharing in many circumstances, but there was, as Finn J found, a normative structure to custom and practices about what was shared, and on what terms, and what if anything sharing said about ownership. Of course, this also comes into the related issue I consider below, about distinctions between occupation and use.
766 Added to this, in my opinion, are the post-colonisation overlays which have affected how people understand and apply normative customs about seeking permission, and about use of islands such as Warral and Ului. As I explain throughout these reasons, in my opinion those post-colonisation overlays are of at least two kinds: first, the overlays arising from the forced removal of the Kaurareg People to Mua, and the changes that brought in how both communities lived, as well as increasing their close relationships. Second, the overlays associated with the dispute about these islands, now more than 20 years old. Added to this are the ongoing disputes about other uninhabited islands in this Western Torres Strait region. Twenty years may be around, or more than, a third of the adult lives of many of the witnesses in this proceeding, and it is those 20 years that are their most recent lived experience. Gud pasin and what in my view is the remarkable tolerance of people living in the Western Torres Strait to each other and to different views has meant that there has been a high level of tolerance of wide use of islands such as Warral during the last few decades.
767 A good example of the contemporary approach to permission was given in Troy Laza’s evidence:
TROY LAZA: Yeah, everybody you know sort of uses that as - because it’s halfway between all the islands, if there are big southeasterlies blowing, that’s the sheltered route to get from Mua from Badu to TI. I think as much as – and that would – that would have started from the times of, you know, little powered outboards to sailing boats and then the 6 horse outboards and the, you know, 10 horses and then the sailing boats are well before my time but that’s the route. That’s the – that’s the track that in the heavy south-easterly winds that people – people would go, and then they would shelter at Warral and then they’d wait for the turning of the tide to get better tides, you know, so that they can be pushed quicker up the side to TI or pushed quicker to Warral. It’s all weather dependent and for what reason, but they have been before my – you know, I seen myself and then people have used that part.
MS PHILLIPS: And in your time as well?
TROY LAZA: Yes.
MS PHILLIPS: Do any of them need permission to do that?
HER HONOUR: I’m sorry, I missed that question, Ms Phillips. You also need to keep your voice up.
MS PHILLIPS: Whose permission did they need to – do any of those groups need to do what you’ve just described sheltering at Warral?
TROY LAZA: So after – after the conflict, I don’t think any of us really need to ask permission. I haven’t seen – seen people asking permission to use that island. It’s a given that those islands are used for that purpose.
MS PHILLIPS: And when you say “any of us” who do you mean?
TROY LAZA: Kaurareg, Mua, Badu.
768 Although counsel worked hard to relate this back to pre-colonisation times, or time at colonisation, I am confident that Mr Laza was, genuinely, giving his understanding about post-colonisation times, and that his references to “sailing boats” were rather speculative on his part.
769 Senior counsel for the Badulgal respondents made the following submissions:
HER HONOUR: What do you say is the state of the evidence about permission being sought by either Mualgal or Kaurareg people to stop to go fishing, to go crayfishing and, perhaps more broadly, evidence about permission generally in relation to the use of those two islands?
MR McAVOY: So the evidence is this your Honour, that people using the waters around Badu and Ului don’t need to seek specific permission. There’s no evidence that people – that any people are required to obtain permission to fish, not that I can point to. But that in the Badulgal respondents’ submission is a post-sovereignty development and that at sovereignty - - -
HER HONOUR: It’s not just fishing though. I mean, it’s stopping.
MR McAVOY: Sorry?
HER HONOUR: It’s stopping on the islands.
MR McAVOY: Yes, and so that’s a – it seems to be a common and permissive practice and it - - -
HER HONOUR: Turtle eggs, I think I heard quite a bit of evidence about turtle eggs.
MR McAVOY: Turtle eggs, goannas in some places on Warral, cooking food on the beach. Those types of activities which are undertaken in the Badulgal’s submissions are largely contained on the beach. There’s not much that any of the other groups did in the way of going inland from the beach and that’s, it’s submitted, a common use by the people that traversed the area. It’s accepted that that type of use by Kaurareg and Mualgal would fit into the description of gud pasin but the evidence of those activities is post-sovereignty and the evidence about any pre-sovereignty or at sovereignty use of those islands is very limited your Honour except that, as I’ve taken your Honour to, the evidence from Mr Laza and Mr Nona about what they were told, Mr George Nona, about what they were told how the islands were used pre-sovereignty or by their ancestors and the evidence that we have about the very volatile nature of the region and the dominance of the islanders from Badu in the region. When all of those factors are taken together, your Honour, the finding can be made that whilst there is evidence of a whole range of permissive uses post-sovereignty, that that does not necessarily translate to Native Title rights and interests possessed at or pre-sovereignty.
770 The applicant’s primary position is that none of the groups acknowledges a requirement to obtain the others’ permission to visit and take resources from Warral or Ului. This, the applicant submits, is consistent with shared usufructuary rights and shared ownership of the two islands.
771 The applicant gave a large number of references to the evidence to make good this point. I accept that many of the applicant’s witnesses gave evidence to the effect that they did not seek permission, and did not need to seek permission, to stop on Warral, to gather resources from it (whether in the sea and reefs around it, or on the beach, such as turtle eggs), or to camp overnight there.
772 The evidence given by Thomas Savage is a good and typical example. In examination-in-chief and by reference to a map of Warral, he indicated all the places he and his cousins went on a particular trip – diving along the edges of the reef, taking turtle eggs from the beach, collecting crayfish and fish. He then gave this evidence:
MR BLOWES: And before you left Kubin or any other time on that trip, did you ask anybody whether you could go to Warral?
THOMAS SAVAGE: Like amongst our family. Like we already have – you know have the idea of, you know, to go out there and hunt rather than seeking consent, yeah. If that’s what you’re asking.
MR BLOWES: Did you tell somebody you were going?
THOMAS SAVAGE: Yeah, we talk to, you know – sometimes when we go out to places to hunt for food and you don’t want to talk to others, otherwise they’ll go and beat you to it, so there are these – these games that, you know - -
MR BLOWES: So you don’t tell people your best fishing spot?
THOMAS SAVAGE: Yeah.
MR BLOWES: Okay. And did you have a good catch that day?
THOMAS SAVAGE: Yeah.
MR BLOWES: And who did you distribute it to?
THOMAS SAVAGE: We distribute it to the whole family back home, like just for consumption, ordinary consumption.
MR BLOWES: Kaurareg family or Mualgal family?
THOMAS SAVAGE: Mualgal family, yeah.
MR BLOWES: And any other trips from Kubin to Warral where you got off – perhaps I’ll withdraw that and ask you this. How many of those kind of trips were a bit like that one you just described? Can you recall whether you did that only once or a lot of times?
THOMAS SAVAGE: Since nineteen, what, 1986 when I went out to Kubin, I stayed out there, I lived out there with the families and we – that’s when we, you know, been out to the reefs working and Warral and Ului, you know diving and collecting food, or even turtle hunting, yeah.
MR BLOWES: So trips like you’ve just described, only once or once a week or once a year or how many? Give us an idea of how frequent or how infrequent you did that trip?
THOMAS SAVAGE: Very frequently, like you know, every week, four weeks we’d go out say four or five times a month, you know, we’d get out there and gather. Depends on the tide and the type of – yeah.
MR BLOWES: For that same purpose or different purposes?
THOMAS SAVAGE: Generally for like you know same - same purpose. Sometimes for cultural events like opening or occasions like big occasions, weddings, funerals or things like that.
(Emphasis added.)
773 Mr Savage, a Kaurareg witness with Mualgal connections, volunteers that food caught around Warral is shared with Mualgal family, not Kaurareg family. He is also describing his use of Warral while living at Kubin on Mua. He is not describing hunting trips from the Kaurareg home islands. This evidence is a good example of what Fr Manas described in Akiba: once Kaurareg People were living on Mua, integrated into the Mua community not only by presence but also by increasing family ties, the Mualgal shared what they had with Kaurareg. That included the marine resources of their country around Mua. Which in turn, in my opinion, included Warral to a greater extent (because of its proximity to Mua and its richness of resources) and Ului, to a lesser extent.
774 Some of the Kaurareg evidence was from several decades ago – Enid Tom described visits to Warral in the 1970s, Eliziah Wasaga described visits in 1997/1998, Naton Nawia and Nazareth Adidi were also describing visits from their younger days. Nevertheless, I accept they all gave evidence to the effect that they did not need permission, and did not seek any permission, nor did their elders they travelled with (at least as far as they knew).
775 However, I consider with most of this evidence, as Thomas Savage’s evidence illustrates, there is often or usually some connection, and indeed often multiple connections, with the Mualgal community attached to the visits. There is no evidence of Kaurareg People, with no Mualgal connections, going to Warral to engage in activities which might be characterised as only those an owner could do – building more permanent structures, for example. There is no evidence of visits out and back from the Kaurareg home islands, on the basis that Warral was Kaurareg country, with resources available for Kaurareg People, and that was the only reason for going there. There is no evidence about Kaurareg use or visitation to Warral in pre-colonisation times. In post-colonisation times the evidence demonstrates that use and visitation has been of the kind that falls within the concept of gud pasin, or permissive use, and generally if not always is connected to Mualgal use of the island. The absence of any Kaurareg-specific evidence, devoid of connections to Mua and Mualgal, is even clearer for Ului.
776 Thus, the lay evidence about no need for permission, post-colonisation, fits with gud pasin and permissive use being extended to the Kaurareg People, as well as with the post-colonisation deep connections between Mualgal and Kaurareg.
777 The Badulgal applicant witnesses explained clearly why they do not need permission. Consistently with his evidence in Akiba, Mr Tipoti told the Court that:
MR BLOWES: And have you heard from your father whether Warral is regarded as part of any community, or belong to any community?
ALICK TIPOTI: Yes. Those experiences when I bought my – when I got my first – or my second boat, which I still have now, me and my father come trawling, fishing, and when I go turtle hunting with the boys and I come back home with turtle to Horn Island, and we talk – he ask me where I went and when I identified those reefs in Warral, he always tell me and I remember very clearly, and I quote [Kala Lagaw Ya Spoken], referring to Badulgal alone.
…
MR BLOWES: What’s your understanding then - - -
ALICK TIPOTI: My understanding, yes.
MR BLOWES: - - - about Ului?
ALICK TIPOTI: My understanding about Ului, are you referring to back then or now?
MR BLOWES: Back then.
ALICK TIPOTI: Back then, yes.
MR BLOWES: As to – well, for a start, who do you know has – which communities use those – use that?
ALICK TIPOTI: Oh, yes. From my experience back then, it was only Badulgal, but I also have knowledge of Mualgal utilising that island, so - yes.
MR BLOWES: Is that different for Warral?
ALICK TIPOTI: No, it’s the same, the same, yes.
MR BLOWES: Okay. And is it – what’s your understanding then as to – as between Badulgal and Mualgal whether there’s any requirement for permission or asking anybody to go there?
ALICK TIPOTI: Not to my knowledge.
(Emphasis added.)
778 Geiza Stow’s evidence was:
GEIZA STOW: You ask for your safety, and when you coming back you would (essopaise). Because Warral is midway, so when you get to Warral you know you are halfway home, or you halfway to TI, so that is halfway. Everybody knows that, so you are (paise) because crossing from TI over, the seas can be rough so you know, you get to Warral, which we normally go stretch our leg because at that time now the tides are low and it’s not a good anchorage place, so we just press, cruise past. Yes.
MS PHILLIPS: But when you left Warral what did you say back to the spirits?
GEIZA STOW: Esso wia and me in the home waters now, yes.
MS PHILLIPS: What does esso mean?
GEIZA STOW: Thank you.
MS PHILLIPS: What language do you use when you speak to the spirits?
GEIZA STOW: Kala lagaw ya.
MS PHILLIPS: Do you need any permission to go there from anyone?
GEIZA STOW: Well, not that I know of. I mean, I’m 64 and I didn’t ask any time in my life for permission.
MS PHILLIPS: I’m taking you back a little bit. You were talking about your dad. What did your father say about Kaurareg connection to Warral and Ului?
GEIZA STOW: At kala we call (Kala Lagaw ya spoken), but exactly, but dad told me that he told Kaurareg elders that Warral and Ului in time to come for claim, you – it’s not yours, and dad said that.
(Emphasis added.)
779 The applicant submitted that when Ms Stow spoke of her father’s view, Aidan Laza was just expressing a personal view. This is another example of the way the applicant’s case sought to downplay the role of Aidan Laza, a senior Badu elder and on the evidence a man of great knowledge. It is ironic the applicant sought to do this while relying on the evidence of several of his descendants. I find that what Ms Stow was describing was not a “personal view” of Aidan Laza. It was his expression of his understanding traditional law and custom in these islands, and it is consistent with what he put on the map he created.
780 There was the same kind of evidence given by Badulgal about Ului. Troy Laza’s evidence was:
MS PHILLIPS: Is there anyone you need to ask in order to go to Ului?
TROY LAZA: No.
MS PHILLIPS: And you will have to say - - -
TROY LAZA: No.
MS PHILLIPS: Okay. So how do you feel when you go to Ului to hunt thupmul?
TROY LAZA: Yeah, because - because of my uncles and it’s a place that over time we’ve gone, I’ve never been told that we need to ask any specific person or people to go there because they’re out - that’s our place.
MS PHILLIPS: So how do you feel when you’re there?
TROY LAZA: Feel? You know, like I allowed to be there.
MS PHILLIPS: And is there something that you do before you go there or shortly after you arrive?
TROY LAZA: Yeah, when we - on the way to - on the way to Warral and Ului, the passages between Dadalai, in the front of Dadalai and Kulbai, because they narrow they get really rough, and over time you know we’ve lost - we’ve lost families through there and over generations and stuff. So when I was young we’d always have to maybe pull up for water, light a smoke, put out a smoke and if we got food, sometimes we don’t have food but we - you know, scones or damper or bread, then you go - if we’re going up on to the islands and when we right up in the shallows, you know the big ones say words and talk.
781 I have included the last part of Mr Laza’s evidence because it is indicative of the qualitative differences I observed in the evidence from all Badulgal witnesses about this area. They were never talking about occasional visits, or stopovers. They were talking about sustained, and regular, use of the sea and these islands as part of the territory that was treated as their own. Their descriptions always had a longer-term flavour – since “before time”. This was the strong impression I gained from all the Badulgal witnesses’ evidence in the way they gave their evidence, irrespective of whether they were called by the applicant, or the Badulgal respondents. I was impressed by their tone, the depth of feeling in what they said, the instinctiveness in the way they described being in the seas around these two islands, and being on these two islands, indeed in that whole area including and extending beyond the shared islands determination area. I had the very strong sense when listening to all Badulgal witnesses that, deep down, they were describing their own country, and country that had since “before time” been only theirs.
782 The State submits that evidence of the use of Warral or Ului by one of the three groups without seeking permission from any other group does not necessarily indicate that any group acknowledges or accepts that any other group has ownership rights in that place. In the State’s submission, the claimants’ evidence about the permission required to conduct activities that disturb the ground on the islands (such as gardening or putting in place permanent structures) indicate ownership rights.
783 I accept the distinction made in the State’s submissions, and explore that in more detail below, in the section on gardens. However, that is not the only matter I find persuasive. As I have explained above, the manner in which the Badulgal witnesses gave their evidence, whether called for the applicant or for the Badulgal respondents, was something I found highly persuasive.
784 The expert evidence in this proceeding about permission is generally consistent with the findings I have made, although the topic was not addressed in much detail. However, I consider the following passages from Dr Hitchcock’s second shared islands connection report aptly capture the circumstances as I have assessed them on Warral in particular, and as I have less confidently assessed them on Ului: namely, that Badulgal and Mualgal have traditional rights of ownership in these islands, but they extend permissive use of the resources of the islands to Kaurareg:
Islanders consistently invoke the concept of Ailan Pasin when discussing traditional land and sea tenure in Torres Strait. In these instances it refers to the assertion and expected acknowledgement of proprietary rights in lands and seas and the extension of use-rights to others who are not members of the group (glossed as ‘sharing’). Sharing is reciprocal, has a moral force, and is also highly adaptive, as those who give help to others, will themselves be assisted at a later date.
Another key element of Ailan Pasin is the expectation of owners that those with secondary or use-rights in land will either ask permission to visit a particular island, voice their intention to visit it, or voice the fact that they have already done so (e.g. Fred Anau, Boigu, pers. comm., 20 October 1999). All three practices are customary forms of permission, and are always highlighted by claimants as embodying ‘respect’, which is a critical component of Torres Strait Islander forms of interaction, whereby the native title rights and interest of owners are acknowledged and upheld by others. Expectations with regard to the forms of permission required are contingent on kinship; it is usually the case that those with distant, or no kin links to a community, must seek formal, prior approval, while those socially closer may utilise notification.
Writing on this subject, Beckett (1983:205) states that
What Barbara Thompson said about Prince of Wales Island was true for all Torres Strait: every inch of ground, including reefs and rocks, was owned, whether or not it had economic significance. In the case of scarce resources, for example prime garden land on Murray, or cult sites, ownership was a matter of exclusion, But often it was a matter of the right to include...In the case of isolated reefs or islets, control was nominal, but it was understood that a kinsmen or friend who collected eggs or fruit there would leave a sign, indicating who had been there. In short, ownership related not just to direct use but to exchange: the complex network of economic, social and religious prestations on which physical safety and survival, and general well being depended.
To find in his assertion that ‘control was nominal’ an inability to assert exclusive possession is to misrepresent Torres Strait Islander forms of land ownership and associated acceptable practice. The ‘right to include’, to engage in sharing and reciprocity, was and continues to be a fundamental part of Torres Strait Islander life. It might be thought that where islands are distant and irregularly visited, and hence cannot be seen and closely monitored, that it will be impossible to enforce permission or exclusion. That is not necessary. Gud Pasin is an expectation of all; to uphold it, and grant permission, entry and use to others, is to in turn be granted access and secondary rights to a wider territorial domain (i.e. range) than one’s own estate. Access to other resources in this way was necessary to survival in Torres Strait (Barham 2000; Harris 1979).
Observance of the above practices by those with non-primary (i.e. non-proprietary) rights is tacit recognition of exclusive ownership. It is very rare that permission will be withheld, but the understanding of the claimant group, and other Torres Strait Islanders, is that this injunction can ultimately be exercised. Where improper behaviours are engaged in (such as unauthorised visitation, and/or rampant resource exploitation), this sanction may well be activated. Often, normative injunction of this kind does not take the form of open allegation or refusal. To do so would create inter-community conflict, and shame the perpetrators. This is against Gud Pasin, and to be avoided at all costs. Rather, it often takes the form of indirect complaints that a particular island or reef is being heavily exploited, and that certain (unidentified) people have failed to ask permission (i.e. failed to ‘let them know’). Depending on the case and the degree of dissatisfaction of the owners, these observations amount to either notification that future entry to secondary-right holders is no longer welcome (i.e. implicit refusal—note again the desire to avoid asserting this outright), or communication that future visitation is contingent on a return to Gud Pasin, i.e. customary permission-seeking practices and respectful usage.
785 Dr Hitchcock’s answers in cross-examination to Mr McKechnie followed a similar line:
MR McKECHNIE: Would you accept that an action such as going onto a beach and getting turtle eggs is the type of action that is consistent with what we were talking about before, those rights that are required through relationships? Permissive, permissive use.
DR HITCHCOCK: Possibly or it might be that the person owns that island.
MR McKECHNIE: Yes, but the mere fact that somebody goes to a beach and takes turtle eggs in and of itself, you can’t distinguish whether or not that right is exercised because of ownership or because of permissive use?
DR HITCHCOCK: The permissive use is an aspect of ownership because the owner has granted the use.
MR McKECHNIE: Yes, but if it’s a different group that doesn’t own the island and is gathering those turtle eggs through that relationship based rights, not through ownership.
DR HITCHCOCK: Usually it’s the case that at some point the person at a prior time perhaps has indicated that they want to do that or often it will be after the event. People often say, oh, you know, I just – hey, you know, I went to that island, I got some turtle eggs. Oh yeah, that’s okay. It’s that kind of – it’s letting them know and it’s still – in doing that you’re paying respect to the owner.
MR McKECHNIE: But it’s not the same as owning?
DR HITCHCOCK: That’s right, it’s not the same but it’s a recognition of ownership.
786 Mr Leo’s views were also similar:
MR McKECHNIE: Will you accept that when you’re talking about activities such as going on to a beach and collecting turtle eggs, that simply from the activity itself it’s not possible, or at least it’s difficult to distinguish whether or not that’s being done because of permissive use or a claim based on ownership.
MR LEO: It is hard unless it is accompanied by statements along those effects, but even then it’s not in and of itself definitive. I don’t know if that’s the best way to express it.
MR McKECHNIE: You place emphasis in your report on - in fact, I’ll take you to paragraph 259 of your report.
MR LEO: Yes, I’m there.
MR McKECHNIE: And down on to the next page, please, and particularly the part about Warral being a common place to stop for a rest and refuel when travelling by dinghy. And I think Mr Blowes asked you about this, but you would accept that that happens in the other direction as well, that to the extent that there might be travel from the Thursday Island chain up north past Warral that there would be stopovers happening?
MR LEO: I believe I expressed this yesterday in terms of my reading and understanding of especially the lay evidence is that there tended to be a lot more traffic from north to south because Thursday Island was the administrative capital and had other stores and other stuff going on. And so whereas, from the other direction people talk more about they were going up there for special events, tombstone opening for instance, and it was less frequent.
MR McKECHNIE: Would you accept that activities relating to stopping over at Warral fall into that same category that we talked about before where it’s difficult to distinguish whether or not it’s happening under permissive use or a claim of ownership?
MR LEO: Yes, stopping off, and the kind of stopping off genre, if you’d like to - for lack of a better word - people talk about doing it because they’re working, they’re doing pearling, they’e on a lugger, pearling and crayfishing, and so it’s part of, you know, they’re on boats doing that work. Then there’s the transiting, stopping off up and down, back and forth from - and I do distinguish that from where people were actually going there to picnics, they’re day trips, and then going back. That’s certainly not staying on; that is, you know - but yes, it’s - it is in and of itself hard to distinguish.
787 Granting or withholding of permission in respect of the use of Warral and Ului has become mixed with post-colonial practices of sharing, and more traditional gud pasin. It has also become affected by the increase in travel between the Kaurareg home islands, especially the Torres Strait administrative centre on Waiben and Ngurapai as the regional airport location. This is particularly apparent in relation to Warral because of its geographic location. The evidence about Warral’s use as a stopping-off point is evidence about use in post-colonial times, since the advent of motored boats, larger dinghies and luggers as forms of transport and for commercial fishing. The presence for the last 20 years of a native title dispute over the islands has in my opinion contributed to the attitude that permission is not sought, nor seen as required. Therefore, accepting the distinctions made by Dr Hitchcock (consistently with the findings in Akiba), it is difficult to separate out evidence about contemporary use of the islands into use by owners, and permissive use by reference to the seeking and obtaining of permission, as might occur in other claims. The Court needs to look at other evidence to determine what the evidence establishes about that distinction.
THE DEBATE OVER OCCUPATION AND USE
788 In terms of how claimants in the Torres Strait come to know about rights of access and ownership under traditional law and custom, I found this explanation by Dr Hitchcock in the first shared islands connection report very helpful:
Land tenure rights and responsibilities are transmitted within and between generations through oral instruction. This may be oral, through biographical narratives, genealogies, stories, myths and legends, or occur in the exercise of those rights. For example, young men will accompany older individuals on visits to the claim islands for subsistence purposes, and in so doing receive knowledge regarding their rights and responsibilities.
People inherit knowledge from their parents and grandparents about ownership, and the responsibilities that this entails. As Fitzpatrick (1999:40) notes,
people visit their territory to show it to their children, just as their parents and grandparents instructed them about the location, history and responsibilities associated with buai plots, sacred sites and fishing areas. It is a moral imperative and responsibility to preserve this knowledge and pass it on to the new generation.
789 This account is consistent with the lay evidence the Court heard, and especially consistent with the Akiba evidence. Here I am thinking especially of the evidence of Alick Tipoti and Walter Nona. This account illustrates the differences I observed in the lay evidence, in terms of the quality and depth of the evidence, and its relationship to activities on the islands that were more persuasively evidence of ownership, of knowledge of possession of that island as belonging to one’s community, than activities which were more related to sustenance and permissive use. In other words, how people described what they had been told varied in its content – some witnesses only described being told about visits, and food or resource gathering. Others were able to describe being told about visits that involved much more than that, and being told about stories or narratives which showed a connection of a deeper and ongoing kind with these islands. I found Mr Leo’s opinions on this persuasive – he looked for activities of a more enduring and intergenerational kind as indicative of a sense the island belonged to people and they could do as they pleased there – that is the impression I also had of the differences in the lay evidence. The accounts of intergenerational use I consider especially important because it is comparable and consistent with traditional practices of handing down rights and knowledge.
790 To some extent all parties accepted there were some choices to be made from the evidence about what could be said to be evidence of ‘ancestral occupation’ before colonisation, what could be said, post-colonisation, to be evidence of ‘occupation’ in the sense of ownership and what should be characterised as permissive use. Even the applicant appeared to accept there was a category of evidence that might disclose “mere use”. In its reply at [13], it submitted:
Measuring ‘occupation’. Not a competition about the nature or extent of activity except that activity must involve more than ‘mere use’ (permissive use, use solely depends upon the bestowal of gud pasin and so on).
791 The applicant’s submissions then criticised the Badulgal respondents for “prioritising” certain kinds of activities, but in my opinion the Badulgal respondents were correct to take this approach.
792 Once again it was the submissions of the State which I found of the most assistance on this central issue. While the Badulgal respondents freely used the term “occupation” in their submissions, they did not spend much time expressly articulating what evidence might be properly seen as demonstrating occupation in an ownership sense, rather than permissive use. In contrast, the State made this issue a feature of its cross-examination of the lay witnesses, and the experts, as well as its final submissions.
793 At [89]-[93] the State made the following submissions about the correct approach in principle:
A significant issue in this matter is the variety of evidence that was provided in terms of activities that may be considered “occupation” or “use” and the question of what weight to place on those activities relative to each other.
The issue is described in the Applicant’s submissions as “apparent use competition” and is contended by the Applicants to be largely, if not wholly, irrelevant, on the basis of the findings in Akiba at [630]: cf. AS [34].
That position is not supported by a wider reading of Akiba. As Finn J emphasised (at [254]), mere use of an area by an Islander, even repeated use, does not necessarily lead to the conclusion that that person (or his or her community) has native title rights in that area. More is needed. In addition to identifying a number of considerations that may affect how, and how often, a marine place may have been used and occupied prior to annexation and thereafter, Finn J added that “like issues” can arise in relation to land — is it accessible, usable other than for bare passage, is its productivity exhausted, etc?
Such matters merely raise questions concerning what use and occupation, if any at all, can reasonably be expected to have been made by prior ancestors — and today — of a particular place or area that their descendants claim. The answer, as with particular areas of land, may be intensive or regular use. But equally it could well be none at all, occasional, or only for passage over it. However, that is not to say it could not still be an area of a particular community, when that area is viewed in its setting.
More specific assistance is to be found in Finn J’s application of the above approach to two unresolved land claims over uninhabited islands. Although his Honour was not required to actually determine the land claims, in order to form a view as to who owned the surrounding marine areas, his Honour had to form a view as to who owned the islands. The two claims were in relation to:
(a) Zuizin (Halfway Island): see [417]-[419];
(b) Naghir: see [420]-[429].
His Honour’s discussion of Naghir, in particular, suggests the evidence in that case presented some of the complexities that are present in this case. Also of interest is Finn J’s emphasis on the fact that his findings in relation to non-exclusive marine areas could tolerate a certain level of under-inclusiveness or over-inclusiveness because his Honour was not concerned with rights and interests in land.
(Original emphasis, footnote omitted.)
794 I accept and agree with those submissions. I agree that there is a useful parallel with Finn J’s discussion about Naghir in Akiba. Naghir is, as Finn J found, “high and rocky, relatively fertile and visible from two home islands” – Warraber and Mua. It remains without a determination of native title over it, and is not far from the islands in dispute in this proceeding, being recorded on the map at attachment 3 to these reasons. His Honour had considerable evidence from a variety of community groups about who these islands belonged to. He discounted some of it, and found other witnesses’ evidence more reliable. My reading of his Honour’s reasoning is that, unsurprisingly, he looked for continuity of use from before colonisation to the present day, and he looked for evidence from those who might have first-hand knowledge of such continuity of use. Since he was not determining title to land, the types of use were of less concern, and since he was determining title to sea country, use of the sea was given some prominence.
795 In this case, on the basis of attachments 1 and 2 to these reasons and the claim area description, we are concerned with land above the mean high water mark on spring tide. In my opinion, evidence about use of the land itself, and not just the sea around it, is of greater probative value in terms of establishing pre-colonisation rights which can be characterised as rights of ownership.
796 The State emphasised both “quality” and “quantity” of use and occupation in terms of assessing the evidence, and I find that both characteristics can be probative. Frequency and regularity of use may be probative of an assumed right to exploit and also of a long-standing connection in terms of feeling a need or obligation to return to an island. Frequency and regularity of use may also say something about accessibility, which in turn in this region I am satisfied may also say something about ownership from before colonisation when travel was by canoe, as many of the other determinations about the uninhabited islands demonstrate.
797 The State’s cross-examination sought to demonstrate that the lay witnesses understood and accepted a difference between owning an uninhabited island and using it. This line of cross-examination was sometimes productive, and other times not. In other words, not all lay witnesses recognised a difference, or perhaps sufficiently understood the point that was being made, to give an answer really directed at whether they agreed or disagreed that there was a difference. Some of these concepts are, in my view, seen as somewhat artificial to present day Torres Strait Islanders, and of course are products of the legal content of native title.
798 The line of cross-examination elicited two kinds of probative evidence.
799 At least two witnesses, whose evidence I consider overall to be highly reliable, indicated that there was a difference, and that the difference could be seen in the kinds of activities that people might engage in on an island such as Warral (or Ului).
800 Troy Laza’s evidence was the clearest on this:
MR McKECHNIE: Is there a difference between owning a place and using a place?
TROY LAZA: Yes.
MR McKECHNIE: Just because a group owns an island doesn’t necessarily stop another group from coming there and taking turtle eggs or using that island, does it?
TROY LAZA: No. That happens all the time here.
MR McKECHNIE: Would you say that that’s an example of gud pasin?
TROY LAZA: Yes.
MR McKECHNIE: Being able to use an island as a stop over point when you’re travelling from one place to another ---
TROY LAZA: Yes.
MR McKECHNIE: --- is not the same as owning an island, is it?
TROY LAZA: When using it just as a stopover ---
MR McKECHNIE: Yes.
TROY LAZA: --- and only that, depending on where the island is? Probably not.
MR McKECHNIE: You gave evidence that growing up you always had a strong feeling that Warral and Ului was just Badu?
TROY LAZA: Yes.
MR McKECHNIE: That was your evidence, wasn’t it?
TROY LAZA: Yes.
MR McKECHNIE: When you were talking about that, that’s another way of talking about ownership, isn’t it?
TROY LAZA: Yes.
801 I consider this evidence both persuasive and probative. Mr Troy Laza was a genuine, insightful, and careful witness. His evidence demonstrated that he understood many of the subtleties in questions being put to him. He was a Badulaig man called on behalf of the applicant, in support of the shared ownership claim. But I find he was true and faithful to his traditional knowledge, handed down to him, even though this tended against the applicant’s case. That was not an easy position for him. But he bore it with care and dignity. In this evidence, as in other parts of his evidence, I find he was telling the Court what he had been told by his elders, and what he had been taught was the position before time.
802 Alick Tipoti gave evidence to similar effect, if rather more qualified:
MR McKECHNIE: - - - there’s a difference between owning an island and using an island
ALICK TIPOTI: I guess, yes.
MR McKECHNIE: And you spoke about how your father had told you that those islands, Warral and Ului, belonged to Badulgal only?
ALICK TIPOTI: Yes.
MR McKECHNIE: He was talking about ownership when he was telling you that.
ALICK TIPOTI: Yes. Except, (Malku) – because Malkulaga, he’s talking to me, he’s including the listener for the Malkulagal, and then he said Badulga lagal, so I only know that.
803 No-one clarified the last part of Mr Tipoti’s answer, whether in re-examination or in submissions.
804 However, Mr Tipoti’s evidence in Akiba was unequivocal about Badulgal ownership of these islands, and that was in a far less heated setting. I find his evidence about ownership of the islands highly probative of the traditional situation, and probative of the case put by the Badulgal respondents. What then remains, as I explain in more detail below, is whether other evidence sufficiently justifies a finding of shared ownership with Mualgal.
805 From other witnesses such as Mrs Adidi (see the State’s submissions at [147]), there was an understanding that ownership was exclusive – “It’s our cake. We give them a piece of the cake”. Mrs Adidi was here talking of Mualgal ownership of Warral, and emphasising, I find, her own understanding of the difference between ownership and (permissive) use. Recalling Thomas Savage’s evidence about going to Warral from Mua, and sharing what was gathered with Mualgal family, this evidence is all compatible with the conclusions I have reached.
806 As I explain below, while it is challenging to separate out the evidence which might be said to be evidence of ownership and the evidence which might be said to be evidence of permissive use, I consider there is enough evidence to make that distinction, and in making that distinction, the Court is able to be satisfied on the balance of probabilities about the traditional ownership of the islands, rather than only being able to be satisfied about which groups have used the islands.
807 I find that the Kaurareg People have permissive use of Warral inside the claim area. The evidence about use of the waters immediately around Warral and Ului (including reefs) is likely also to suggest permissive use in a traditional sense (whatever might be the current use), but that is not a conclusion I need to make a formal finding about on the balance of probabilities to answer the separate question.
808 I am satisfied that, before colonisation, Kaurareg People did not enjoy even permissive use of the land within the claim area on Ului itself. Fundamentally, I am not persuaded the Kaurareg People even visited Ului in any seasonal or regular sense. There is no real evidence of Kaurareg People going near or to Ului pre-colonisation, nor any rational inferences in their favour to be drawn from what evidence about pre-colonisation use of Ului does exist. I do not accept there is a rational basis to find that pre-colonisation Kaurareg People had even rights of permissive use of the waters around Ului, including its reefs.
809 Nevertheless, in contemporary times, I doubt Kaurareg People would be denied permissive use of either Warral or Ului, or the waters around them, especially because of their close relationships to Mua and Mualgal. There is no suggestion they will not continue to enjoy the use of the islands and the waters around them for ‘stopping over’ and for fishing and hunting in the way described in the lay evidence.
810 This topic needs some separate attention because of the role it played in the case of the Badulgal respondents. They were criticised at various points, especially by the applicant, for their emphasis on gardens, but ultimately I find that emphasis to be justified, and probative of ownership.
811 The Badulgal respondents submit that the traditional law and customs that apply to Warral and Ului meant people could only build structures and create gardens on their own lands. They referred to numerous passages from their witnesses’ evidence in support of this submission, and also at the Court’s request prepared a document collating the evidence about gardens. It was, I am afraid, not an easy document to follow in terms of understanding which gardens all of the references pertained to. What it did make good, however, was the sheer volume of evidence about gardens. In these reasons, I extract a considerable amount of evidence about gardens, because of the prominence it had during the hearing and because of its probative value.
812 This category of evidence has probative value for the following reasons. It concerns activities that involve more than just gathering resources that exist naturally. It involves changing the landscape, whether to a small or a greater extent. It involves some seasonal, and therefore repeated, use. It involves disturbing the soil. It involves making food resources available that were not otherwise available at that location. It takes human effort over a considerable period of time, not opportunistic but planned and deliberate. It involves maintenance activities, again whether to a smaller or greater extent depending on the crops. It is an externally visible sign of ownership to these who visit or pass by, and with some crops, like coconuts, I find the evidence suggests it is intended to be an externally visible sign of ownership. Gardening demonstrates rules about permission and about occupation. It is intergenerational, both in the activity and in the knowledge about where gardens are located and to whom they belong. All of these are characteristics of a kind of possession of land compatible with ownership and an assertion to others, outside, of that ownership.
813 I commence with Ronnie Nomoa’s evidence, a witness whom I found to be reliable, and knowledgeable about traditional law and custom. I found him to be a very proper kind of gentleman in his approach to his evidence, and most sincere.
MR McAVOY: Under island law can somebody from another island build a house on a Badulgal island?
RONNIE [NOMOA]: Do what?
MR McAVOY: Build a house.
RONNIE [NOMOA]: No.
MR McAVOY: Can they make a garden?
RONNIE [NOMOA]: No, they can’t. If they ask, well, it’s up to the council or to the elderly people of the island.
…
MR McAVOY: What do you think about whether your grandfather might plant a garden on an island belonging to someone else?
RONNIE [NOMOA]: Well, if that island not belongs to Badu, why he plant it there? So if he plant there, that they know they are Badulalaland.
814 Wolfgang Laza’s evidence was:
MR McAVOY: Do you know about your family or other Badulgal people having gardens on other islands as well?
WOLFGANG LAZA: Yes, Durak and then the Duncan Islands, and all that little islands as well. Well, if you can just think about it, I mean people back here at Badu was much more – a lot – a lot of people here then it is today.
And, like, Uncle Ronnie said, because of the hard life, people had to go away and occupy those islands. So, Warral and Ului was not only the islands that was occupied by Badulgal. All these little islands from there up to that point was also occupied. Those families in different islands at different – they had their gardens there, and every family knew where this family garden was. So, you had to pick a place where it’s not occupied and use that. So, all those islands had gardens.
MR McAVOY: Do you have a garden now?
WOLFGANG LAZA: I’m not a garden man.
MR McAVOY: If – can I ask you if you were going to build a garden at your grandfather’s site, what would you have to do? Is there anything you have to do before that?
WOLFGANG LAZA: I would just build it. I don’t think at this point because of the sharing factor I just build it there, and I’ll build it where my grandfather had his garden because if you guys seen it the other day from the boat, it’s ideal where that location is. It’s in the valley and the rivers coming down from the hills, and during the monsoon season it removes all that topsoil and settle it down on the bottom there. And yes, I think my grandfather found a very ideal place. And, yes, it wouldn’t make sense going somewhere else.
MR McAVOY: And what do you understand if somebody from Kubin or a Mualgal person wanted to plant a garden in that space, what should they do?
WOLFGANG LAZA: Well, it’s respect. I mean I respect our neighbours on the other islands, but in a sense if that was occupied by my grandfather in the past, then maybe it would be by respect if they knew, of course, that that – that particular area that they wanted to plant or make a garden was – was occupied by another family from Badu. Yes, it would make sense. Yes, I mean, you would go and sit with that family and just tell them what your intentions are.
MR McAVOY: And is that the same for Kaurareg people?
WOLFGANG LAZA: Yes.
…
MS PHILLIPS: What if another family had come and said – and you note another family was building gardens in your Laza family area, would they have to ask?
WOLFGANG LAZA: Another Badu like family?
MS PHILLIPS: Yes.
WOLFGANG LAZA: Yes.
MS PHILLIPS: They would have to ask?
WOLFGANG LAZA: No.
MS PHILLIPS: No. So, the fact that there were families with gardens in the Laza family area, they were Badulgal and they didn’t have to - - -
WOLFGANG LAZA: Yes.
MS PHILLIPS: And they could just build their gardens there?
WOLFGANG LAZA: They could build anywhere on Warral.
MS PHILLIPS: So those children of Tanu Nona, they had their interests in that garden through their mother?
WOLFGANG LAZA: Yes, you could say that.
MS PHILLIPS: Right. Do you say that?
WOLFGANG LAZA: Yes, I do.
…
MS WEBB: Mr Laza, just I wanted to ask you about some questions Ms Phillips had for you about – and I think you used the word “privilege” to build a garden on Laza family land on Warral?
WOLFGANG LAZA: Yes.
MS WEBB: And you said it was through intermarriage - - -
WOLFGANG LAZA: Yes.
MS WEBB: - - - island custom and gud pasin?
WOLFGANG LAZA: Yes.
MS WEBB: So, if somebody married into your family - - -
WOLFGANG LAZA: Yes.
MS WEBB: - - - they would be able to build a garden?
WOLFGANG LAZA: Yes.
MS WEBB: Ms Phillips also read to you a passage from Mr [Nomoa’s] evidence?
WOLFGANG LAZA: Yes.
MS WEBB: And you said that was about making decisions about land?
WOLFGANG LAZA: Correct.
MS WEBB: And the right way to make decisions about land?
WOLFGANG LAZA: Correct.
MS WEBB: Is there a difference between making decisions about land and being able to build a garden on family land?
WOLFGANG LAZA: There’s really no difference because a parent has to provide food for the family and you cannot disallow any parent that access to cultivate and to provide food for the family.
MS WEBB: That’s to the garden?
WOLFGANG LAZA: That’s to the garden.
815 Tommy Tamwoy gave the following evidence:
MR SMITH: And did you ever go gardening with your grandfather?
TOMMY TAMWOY: Yes, Eccles Tamwoy.
MR SMITH: And where did you go with your grandfather to do gardening with him?
TOMMY TAMWOY: I always go with him to Tuin Island to garden there and plant coconut, and he always tell me, “Where you plant coconut, that’s your boundary line.”
MR SMITH: And when you were a child, what would happen if you went into someone else’s gardens and took something from that garden without asking first?
TOMMY TAMWOY: My uncle told me all the time as I been grow up never to go trespassing on anybody garden without asking.
MR SMITH: And what would happen if you did?
TOMMY TAMWOY: Once they find out you steal from the garden, they’ll whip you with a belt or the stick.
…
MR BLOWES: If you wanted to make a garden there [on Tukupai], you could do that?
TOMMY TAMWOY: I can make a garden there if I like.
MR BLOWES: What about a Mualgal person, can they go there and make a garden?
TOMMY TAMWOY: I can’t tell you. I don’t know.
MR BLOWES: You don’t know, okay. If you wanted to put up like a permanent camp there, some structures and poles in the ground and that kind of thing, would you have to ask or consult anybody?
TOMMY TAMWOY: No.
MR BLOWES: So you wouldn’t ask Badu elders?
TOMMY TAMWOY: Only Badu elders.
MR BLOWES: Would you ask Mualgal elders?
TOMMY TAMWOY: No.
…
MR BLOWES: If you went to work in that same garden now [the garden of the witness’s grandfather, on Tuin], or you wanted to extend it, would you consult with anybody or talk to anybody before.
TOMMY TAMWOY: We had coconut, that’s the boundary line. You not plant in any other places beside that.
816 The Badulgal respondents also submit that post-colonisation gardening practices on Warral and Ului are evidence of Badulgal ancestral occupation of those islands. In his report for this proceeding, Mr Leo summarises the lay evidence about eight different gardens tended by Badulgal on Warral and Ului: the Laza family garden, the Nona family garden, the Jackonia garden, the Tamwoy family garden, the Segigi garden, Buzi or Baira Grove, the Nomoa garden and the second Nona garden. I found Mr Leo’s summaries very helpful and they were not challenged by the applicant. Rather, the applicant sought to downplay the importance of the gardening evidence, which I do not agree is justified.
817 In their written submissions, the Badulgal respondents refer to the following passages from the lay evidence in this proceeding in relation to the eight gardens. Flora Warria gave the following evidence:
MR SMITH: You’re aware that Athe Laza and Athe Tamwoy they dug one of the wells on Warral didn’t they?
FLORA WARRIA: Yes, I knew that - - -
MR SMITH: And - - -
FLORA WARRIA: - - - because my father told you.
MR SMITH: Your father told you. And the Laza family, they planted gardens there too, that’s right isn’t it?
FLORA WARRIA: Yes.
818 Ronnie Nomoa’s evidence was:
MR McAVOY: Yes, okay. And from here, if we look in a south-easterly direction, is it – what can you see there?
RONALD NOMOA: I can see Warral.
MR McAVOY: Okay. And can you tell her Honour anything about what you can see of Warral from here?
RONALD NOMOA: Well, when I look from here because some of the Badu families, they’ve been making garden here, but not my family. My family in Ului. So – but I heard Byra [sic – Baira], Tamwoy, Segigi, and also Laza and there may be some other families, and Jackonia on the south of the Warral.
MR McAVOY: On which – on a particular side of Warral or just at the south end?
RONALD NOMOA: When you go from here to TI and you go around that point and before come to Pithalai, it’s there.
819 Alick Tipoti gave the following evidence:
MR McAVOY: Had you heard about the Nona family having a garden at Warral?
ALICK TIPOTI: Yes.
MR McAVOY: You knew about that?
ALICK TIPOTI: I heard about it.
MR McAVOY: Alright. And who did you hear about that from?
ALICK TIPOTI: I don’t recall.
MR McAVOY: And have you heard - - -
ALICK TIPOTI: But it’s general knowledge, to be honest.
MR McAVOY: Yes. Have you heard about the Laza family - - -
ALICK TIPOTI: Yes.
MR McAVOY: - - - having gardens at Warral?
ALICK TIPOTI: Yes.
MR McAVOY: Yes. And you don’t recall who you heard that from?
ALICK TIPOTI: I don’t recall who I heard that from, yes.
MR McAVOY: Alright. Have you heard about the Jackonia family having a garden - - -
ALICK TIPOTI: Yes.
MR McAVOY: - - - at Warral?
ALICK TIPOTI: The Jackonia family, I specifically heard from Baba Ronnie.
MR McAVOY: Oh - - -
ALICK TIPOTI: I remember hearing that. But I can’t remember if I had the – if I knew – I had knowledge of the Nona and the Laza prior to Uncle Ronnie heard about it before.
MR McAVOY: You heard about it before - - -
ALICK TIPOTI: Yes.
MR McAVOY: - - - the meeting?
ALICK TIPOTI: The Nona and the Laza.
MR McAVOY: So you’re saying it was mentioned by your Uncle Ronnie?
ALICK TIPOTI: Yes, I heard – yes.
MR McAVOY: But you think you heard about it before - - -
ALICK TIPOTI: No, no, no, no, no.
MR McAVOY: You - - -
ALICK TIPOTI: I heard from Baba Ronnie, the Jackonia family. Okay? But I can’t recall if I already had knowledge of Nona and Laza prior to Baba Ronnie telling me about the Jackonia family. You understand that?
MR McAVOY: Yes.
ALICK TIPOTI: Yes.
MR McAVOY: Do – did - - -
ALICK TIPOTI: So I do believe and I do acknowledge that there were gardens there but – yes.
MR McAVOY: Did you hear about – have you heard about the Tamwoy family having gardens at Warral?
ALICK TIPOTI: Recently I have, yes.
MR McAVOY: But it’s not something that you heard growing up?
ALICK TIPOTI: No. No. No. No.
MR McAVOY: And in respect of Sunsuit - - -
ALICK TIPOTI: Yes?
MR McAVOY: - - - do you know about any Badulgal family that had gardens or had coconuts there?
ALICK TIPOTI: Yes. I – we call it edible plantation - - -
MR McAVOY: Yes.
ALICK TIPOTI: - - - and I believe it was mentioned by the Baira family or, to my knowledge, the name comes to mind is Wuzi.
MR McAVOY: Wuzi family.
ALICK TIPOTI: Yuwa. Yuwa.
820 Troy Laza’s evidence was as follows:
MR SMITH: You’ve given evidence that you were aware of gardens – the Jackonia family had gardens on Warral?
TROY LAZA: Yes. It’s a big day because I’m thinking either Jackonia or Panuel families.
MR SMITH: You said in your evidence you recently came to understand where the Laza gardens were located. How recently?
TROY LAZA: Say about three weeks ago.
MR SMITH: You said you asked one of your uncles where that garden is located?
TROY LAZA: Yes.
MR SMITH: Which uncle did you ask?
TROY LAZA: Tanu Laza.
MR SMITH: You mentioned that you are aware of at least one other family that have a garden on Warral?
TROY LAZA: Yes.
MR SMITH: Who was that other family?
TROY LAZA: So before, before this proceeding it was either those two names that I mentioned to you. Panuel or Jackonia.
MR SMITH: After you became aware of this proceeding?
TROY LAZA: Yes. Other names come forward, like – this is before this sitting in TI, Mua here, but Athe Buzi I think, talking about Sunsuit Island.
MR SMITH: So you found out before the hearings up here ---
TROY LAZA: Yes.
MR SMITH: --- that there was a garden on Sunsuit?
TROY LAZA: Yes.
MR SMITH: Owned by the Buzi family?
TROY LAZA: Yes.
MR SMITH: You were also told that there were coconut trees planted on Sunsuit by the Buzi family?
TROY LAZA: Yes and no. I just made the connection.
MR SMITH: Made the connection, based on what you saw?
TROY LAZA: Mm.
MR SMITH: Are you aware of Morris Nona having gardens on Warral?
TROY LAZA: No.
MR SMITH: When you say you saw, there are coconut trees on Sunsuit, are they the ones that you understand to have been planted by the Buzi family?
TROY LAZA: Possibly – or the next generation of those, you know the families that have been there.
MR SMITH: Someone from the Buzi family, is that right?
TROY LAZA: Possibly.
821 Ronnie Nomoa gave the following evidence:
RONNIE [NOMOA]: Okay, alright I remember, sorry. Yeah, to that small bay on the southwest of Warral and that’s where Jackonia used to be - Jackonia.
MR McAVOY: Yakonia [sic]?
RONNIE [NOMOA]: Yeah, Jackonia, yeah.
MR McAVOY: Jackonia. And what was there for Jackonia?
RONNIE [NOMOA]: He and his wife also, they first married they went there. He like to plant a garden there on the valley of that area. They stay there for a while. When Aka marry his wife, when she first pregnant she go TI, born, then went - she came back. They come home Badu. They never go back because they had baby.
822 Pastor Tamwoy gave the following evidence:
MR McAVOY: Why’s that? I withdraw that. Just if we can go to Warral for a minute, Pastor Tamwoy. Do you know about gardens on Warral?
PASTOR TAMWOY: Yeah.
MR McAVOY: Can you just tell the Court who had gardens on Warral that you know about?
PASTOR TAMWOY: Athe Laza’s garden.
MR McAVOY: Sorry?
PASTOR TAMWOY: Athe Laza.
MR McAVOY: Athe Laza?
PASTOR TAMWOY: Yeah.
MR McAVOY: Where was that garden?
PASTOR TAMWOY: Front side, near this - that side there, front.
MR McAVOY: Front side?
PASTOR TAMWOY: Yeah.
MR McAVOY: On the - so is that - - -
PASTOR TAMWOY: East side.
MR McAVOY: Towards the top or the bottom? Towards the north or the south?
PASTOR TAMWOY: South. South side, yeah.
823 I infer here that Athe Laza is Aidan Laza, Ms Stow’s and Mr Wolfgang Laza’s father, the author of the Laza map. The evidence continues:
MR McAVOY: Anybody else?
PASTOR TAMWOY: Uncle Tanu but Bala Morris he look after Nona.
MR McAVOY: You said Uncle Tanu?
PASTOR TAMWOY: Yeah.
MR McAVOY: But Bala Morris.
PASTOR TAMWOY: Yeah, his son look after the garden.
MR McAVOY: Anybody else on Warral that you know about?
PASTOR TAMWOY: Uncle Peo Tamwoy.
MR McAVOY: Where was his garden?
PASTOR TAMWOY: See that - this side.
MR McAVOY: Anybody else have a garden there?
PASTOR TAMWOY: Yeah, there was old Segigi, I heard. I just heard Segigi garden but come just out of the back where old Jackonia is.
MR McAVOY: So you said Jackonia?
PASTOR TAMWOY: Yeah.
MR McAVOY: There was a Jackonia garden.
PASTOR TAMWOY: Yeah. His name is Tom.
MR McAVOY: Tom.
PASTOR TAMWOY: Yeah, I think Tom Jackonia live there. His first son born 1919.
MR McAVOY: Whereabouts?
PASTOR TAMWOY: I don’t know, maybe Warral because we got our own woman. What you call woman to take our babies? Yeah, midwife.
MR McAVOY: That’s a lot of gardens that you’ve talked about, Pastor Tamwoy. How do you know about those gardens?
PASTOR TAMWOY: Big people show us. We go there. Every time we travel big people show us this is our island, this is garden. We pass by words. We don’t use paper.
MR McAVOY: Did you go to any of those gardens yourself?
PASTOR TAMWOY: Yeah.
MR McAVOY: Did you go to all of those gardens or some of them?
PASTOR TAMWOY: Some of them, I go Uncle Peo’s garden.
MR McAVOY: You said you went to Uncle Peo’s garden?
PASTOR TAMWOY: Yeah.
MR McAVOY: Did you go to your family’s gardens?
PASTOR TAMWOY: Yeah, because we family.
MR McAVOY: Did you go to the same gardens all the time or different gardens?
PASTOR TAMWOY: No, to different garden.
MR McAVOY: Why would you go to different gardens?
PASTOR TAMWOY: Because sometime weather no good. You don’t go there every time in rough wind. Sometimes you go Tuin our grandad’s garden, yeah.
MR McAVOY: Can you tell the Court what sort of things were grown in the gardens that you went to?
PASTOR TAMWOY: Only yam.
824 And Tommy Tamwoy gave evidence as follows:
MR SMITH: And do you know of any gardens on Warral?
TOMMY TAMWOY: Only I heard about it.
MR SMITH: And what – do you know whose gardens have you heard about being on Warral?
TOMMY TAMWOY: South side belongs to Athe Jackonia.
MR SMITH: Permission to approach the witness, your Honour? Thank you, your Honour.
Can I just get you to mark with an X for me where you say the garden of Jackonia?
HER HONOUR: So, this is a copy of TT1?
MR SMITH: Yes, your Honour.
TOMMY TAMWOY: Just put a white dot?
MR SMITH: A big X for me. I think you said Jackonia. Have you heard that pronounced another way by English speaking people?
TOMMY TAMWOY: No.
MR SMITH: No. And are you aware of any other gardens on - - -
TOMMY TAMWOY: On the north side?
MR SMITH: Yes.
TOMMY TAMWOY: Well, there’d be a garden, Horace Nona, my cousin and Tanu Nona.
MR SMITH: And looking at this map can you tell me is there any marking on this map to sort of identify the area where those gardens are or you understand them to be?
TOMMY TAMWOY: No. All I know it’s on the north side.
MR SMITH: Right. But you’re not sure of the location?
TOMMY TAMWOY: No, not really.
MR SMITH: Are there any trees with fruit around and near - - -
TOMMY TAMWOY: Wongai trees.
MR SMITH: - - - Jackonia? Is that Jackonia garden?
TOMMY TAMWOY: Wongai trees.
825 The references in the evidence to gardens on Warral are voluminous. There is much more evidence about Warral than Ului, but there is still reasonable evidence about Badulgal gardens on Ului. In the parties’ submissions there were other references than the ones I have given above, however the extracts above give a sufficient indication of the quantity and quality of the evidence. The witnesses were honest about the limits of their knowledge, but were also firm about the existence of these gardens. Of course the word “gardens” is used in the sense in which it is meaningful to the people of the Western Torres Strait Islands, not to Europeans. The gardens spoken of in the evidence were areas cultivated for food, not aesthetics. They were intended to produce sustenance for the communities on the home islands. Sometimes, as the witnesses said, because of the absence of feral animals like pigs. I accept that may be a post-colonisation phenomenon, but it is hard to be certain. Plots on uninhabited islands may have had a number of other advantages, including being available for particular families, being able to be harvested at different times or used when food on home islands was short, or being useful when people were otherwise camping on the islands or using the islands.
826 I am comfortably satisfied that evidence about gardens is probative evidence about ownership of these two islands. The gardens evidence is overwhelmingly probative of Badulgal ownership of both islands.
827 The Badulgal respondents submit that there was no evidence from the Kaurareg witnesses of any knowledge of gardens on Ului, and note that Enid Tom and Eliziah Wasaga had no knowledge of any gardens on Warral. I accept that submission. Further, I did not find most of the applicant’s Mualgal evidence about gardens especially persuasive, for reasons I now explain.
Applicant evidence about gardens and my findings about it
828 The key applicant evidence about Mualgal gardening on the two islands is found in the testimony of Nazareth Adidi, Naton Nawia and Pastor Kaitap. Most of it was spontaneous, and not in the witness outlines of these witnesses. In that sense, it took all by surprise to some extent.
829 During the on-country evidence on Ului, Mrs Adidi gave evidence about a garden on the island that her sister and her sister’s partner established:
MS PHILLIPS: Thank you, your Honour. Nazareth, can you tell her Honour when you have been here? You remembered something, can you tell her Honour?
NAZARETH ADIDI: That’s been remind me when we come in here and I looking everywhere – where that another beach, sand beach, but when we go that way I look them mangrove and it’s remind me, like my dad always went in that (magaicluk) he had one, just one, he spear them. It’s a fish, he really like tasty fish and when he come up, I know, I know I been here because when it’s like – when he asks you, you say you been there, you forgot about it. And on my statement I talk about my sister and my uncle. There’s a small beach on this side here facing Warral, that’s where they plant the garden there. Because of the husband is a grandson of Ate Ella.
MS PHILLIPS: This is your sister’s husband you’re talking about now?
NAZARETH ADIDI: Yes, that’s why they been come and make garden around. Not only that, Telita, my sister she’s Mualgal and we got Opeta. His mum and dad, they make garden on this side. Kuki side. Kuki side on this side, their camping area. (Kala Lagaw Ya spoken).
MS PHILLIPS: What did your sister and her husband and your uncle, what did they catch in this area?
NAZARETH ADIDI: Not on this area here, you can see, no got nothing. You have to – we get fish when we go to the rock side.
MS PHILLIPS: You pointed over to the east?
NAZARETH ADIDI: On other side here.
MS PHILLIPS: That’s on the eastern side facing Warral?
NAZARETH ADIDI: Yes, facing Warral.
MS PHILLIPS: What did they catch, and what did you catch there?
NAZARETH ADIDI: There’s all kind of fish over island.
MS PHILLIPS: Fish. Anything else that they would catch there?
NAZARETH ADIDI: No, they were making garden.
MS PHILLIPS: I see.
NAZARETH ADIDI: You see the first time when we come to the island, the first time is first you have to look for food before you do things, or what you got, we have to feed all our kids, we cook, maybe ashes damper or make like (boaway) and you roast on that, and fish then, we can start gardening.
MS PHILLIPS: What did they grow there, do you know?
NAZARETH ADIDI: Yes. Saba and sweet potato.
MS PHILLIPS: Saba and sweet potato?
NAZARETH ADIDI: Yes.
(Emphasis added.)
830 Mrs Adidi is a formidable woman, in my respectful view. She made her displeasure about the position of the Badulgal respondents very clear throughout her evidence. She was especially put out during her cross-examination by Mr McAvoy. I do not criticise her for that: the issues in this proceeding are matters she cares deeply about, and had firm views about. It is human for those feelings to come through in a person’s evidence. Nevertheless, as a key witness for the applicant, and after the emphasis on gardens had been made clear from the very outset of the case for the Badulgal respondents (including in their joinder application), it is difficult to accept that neither the witnesses themselves, nor the applicant’s legal representatives and closely involved experts such as Dr Murphy, sought to confirm that there was no additional evidence about Mualgal gardens that should be adduced and notified to the other parties.
831 If these are traditionally the islands of Mualgal as much as anyone else, there has been nothing stopping any Mualgal witness refreshing their memory over the several years this case has been in active preparation by visiting the islands. In saying that I do take into account that Mrs Adidi is now an older woman, and not very mobile. Nevertheless, she determinedly accompanied the Court on the view and was an active participant that day. It is clear she has a supportive family around her. I find it inconceivable that she had not been asked, and invited to work hard to recall, what she knew about her family having gardens on either island. The fact that, out of the blue, she volunteered this quite critical new information (apparently first to counsel ahead of the evidence, going by Ms Phillips’ question) does not encourage me to consider it is an active recollection. It rather seems to me to be an enthusiastic attempt to assist the shared ownership claim, in which I find Mrs Adidi believes. I do no find this aspect of her evidence sufficiently reliable to be probative of the fact it asserts. I do not consider the applicant has proved Mrs Adidi’s family had a garden on Ului.
832 At Ului, Naton Nawia gave the following evidence:
MR BLOWES: Can you point to any places around here where you’ve been or you camped or you’ve used this place?
NATON NAWIA: Yes. We always come here, anchor boats, dinghies.
MR BLOWES: Doing what?
NATON NAWIA: We just anchor here because it’s a safe place, you know.
MR BLOWES: Only doing that? Any camping or anything?
NATON NAWIA: Yes, we camp here.
MR BLOWES: Camp here at this place that we’re sitting down now?
NATON NAWIA: Yes.
MR BLOWES: How long ago did you first camp here?
NATON NAWIA: Long time, very young.
MR BLOWES: So you working here or coming for picnic or holiday or what?
NATON NAWIA: Well, my dad make gardens on the other side, up here.
MR BLOWES: On the other side. You’re pointing sort of south-east according to my reckoning. On the other side?
NATON NAWIA: Yes, on the other side, just here.
MR BLOWES: On the other side of this hill here?
NATON NAWIA: This side where we grow yam.
MR BLOWES: You can estimate, you been here a lot of times or only a few times?
NATON NAWIA: When I become big boy now, I will come every time.
MR BLOWES: Did your father tell you about whether he came here before you born?
NATON NAWIA: Yes, I think so, yes.
MR BLOWES: Did he say he been here many time, or just few time?
NATON NAWIA: Yes, he been here many time.
833 Mr Nawia was cross-examined about this evidence. Mr McAvoy suggested to him that he had made this evidence up:
MR McAVOY: I suggest to you that you never told anybody before that, about those gardens at Ului?
NATON NAWIA: Yes, my sister know, yes.
834 This appears to be a reference to Mrs Adidi. The cross-examination continued:
MR McAVOY: Who told you your father had gardens at Ului?
NATON NAWIA: Well, I been very young, I only ---
MR McAVOY: Sorry?
NATON NAWIA: I been young boy, I always go over there with my dad, my mum.
MR McAVOY: You already go there?
NATON NAWIA: Yes. We all go. My sister.
MR McAVOY: You’d forgotten about that?
NATON NAWIA: What – yes, that’s long time, I been young.
MR McAVOY: How small?
NATON NAWIA: About maybe 5.
MR McAVOY: Five years old?
NATON NAWIA: Seven, yes, somewhere – six, yes.
MR McAVOY: Mr Nawia, I put it to you that you were at a different place when you were five years old, and not at Ului?
NATON NAWIA: I been there in Oxberry, yes.
MR McAVOY: I’m suggesting to you that you might have been somewhere else, you made a mistake about Ului?
NATON NAWIA: No, no. I know. I know the place, yes.
835 The parties’ common position was that references in the transcript to ‘Oxbury’ were references to Hawkesbury (that is, Warral). As I have found elsewhere in these reasons, I consider Mr Nawia was not always clearly following the line of questions asked of him, and he sometimes became confused. He was not confused in this piece of evidence, but I also find he was not speaking from a clear recollection. It is telling he could not answer Mr McAvoy’s question about who told him this information. That is a question lay witnesses in these kinds of proceedings are well used to hearing, and answering. Usually it is a reliable way to establish that information has been handed down through generations. That is established by Dr Hitchcock’s evidence I have extracted earlier. There was a great deal of evidence in this proceeding about knowledge handed down. By and large it did demonstrate, especially when it was intergenerational to more than one generation, that people had been taught knowledge by their elders, and this was what they were recounting to the Court.
836 I do not consider this evidence from Mr Nawia falls into that category. It is not necessary to say much more than that. It would not be surprising if he had spoken to Mrs Adidi about this topic; that is what he seems to be suggesting. I consider it was his way of showing support for the shared ownership claim.
837 On Badu, Pastor Kaitap gave evidence that his mother planted a tree and his father made a garden on Ului:
MR BLOWES: Can you mark the spot there where we stopped and gave that first lot of evidence. Just put a cross there maybe. And then we walked along the beach in a direction. Perhaps you could mark for us where we walked. And stopped there. And then when we were going back through the cleared ground, you pointed out something to me.
OPETA KAITAP: Yes. I was looking for a tree. I remember my mum and dad they always were gardening there. I was looking for this tree, a nipa, and I saw it because my mother took a nipa tree, a little nipa tree from Kubin because our law at Kubin it’s called a nipa yabu and she took that nipa and planted there, and that nipa is growing there. That’s why I was looking for that nipa.
MR BLOWES: And have you spent any time at that place from when you were small near that tree? Was that a place that you - - -
OPETA KAITAP: That’s the place she plant that tree there.
MR BLOWES: Can you just mark, roughly mark the spot. Perhaps again just put an X with the centre out in the middle of it so that we can find it. Just put the number 2 there. Now, can you tell us anything about you and your family being there or doing things and where and when did it - - -
OPETA KAITAP: Actually, like when my father took us there and he plant the garden there, so I believe like what my father’s was doing was passing that knowledge to me to know that, you know, he had done something there, and I believe that was handed down to him by his forefathers because his dad was a chief and garai, old Gara Kaitap and I believe that - that was handed down to my dad.
Maybe they was hunting something in that area. So it just like a knowledge of - you know, that following day from the generation coming down to our generation, so from my father’s father coming down, and I believe because I’m the eldest son and my father told me.
MR BLOWES: And did you have any information about what was planted there and over what period of time?
OPETA KAITAP: Yes, they planted, we call it yam, gabal, and some bananas and what you call them, (manupa) we call it, cassavas, yeah, but some you know grow well, some maybe don’t like it, yeah. But in that time they always got big yams there. They always take yam coming across to Kubin when it’s time to - like big celebration they - they go over and you know dig up all the yams and yeah, cassavas from there.
(Emphasis added.)
838 Pastor Kaitap also gave evidence about a shack his father built on Ului:
MR BLOWES: Okay. And are you able to say roughly how many times through your life you’ve been - when your father was alive, say, how many times you went there with your father while he was alive?
OPETA KAITAP: My father and my mother, they like gardening, you know. They don’t - they don’t want to stay too long at Mua. When there is time that they made - they have plans and that they just jump in the dinghy, take all their garden stuff, everythings, kaikai, something, and they just move on. And my dad he is a carpenter, and when he build that shack there, he built it properly. It was like a flooring. We was, you know, sleeping on the flooring.
MR BLOWES: Are you saying that he built something there?
OPETA KAITAP: Yeah, he built a shack but with like - a shack but underneath he made a flooring. We put our stuff on the flooring.
MR BLOWES: And how old were you when that happened?
OPETA KAITAP: I was around about 12 - 12 years old, 13.
MR BLOWES: And did your father take the materials from Kubin or did he use local material?
OPETA KAITAP: No, he just take the timbers from Kubin but he use local stuff like other trees that he may want to use it, take it from - take timbers for flooring from - from Kubin.
MR BLOWES: And do you know what timbers he used from that area?
OPETA KAITAP: Just mangroves, just the mangroves like.
MR BLOWES: And what were the mangrove timbers used for in that?
OPETA KAITAP: You know, before houses we made our mangrove timbers.
(Emphasis added.)
839 Neither the evidence about a garden, nor the evidence about a hut, were in Pastor Kaitap’s outline of evidence. As I have noted already, Pastor Kaitap’s credit was the subject of challenge by the Badulgal respondents. However, the State also cross-examined him about why this key evidence was missing from his outline.
MS KIDSON: I think a couple of days ago when you were going to give evidence, did you sit down again with a lawyer and go through and check the outline of evidence, make sure it was all correct?
OPETA KAITAP: That’s correct.
MS KIDSON: There’s nowhere in your outline of evidence where you have referred anywhere to your parents having a garden at Ului, is that right? Do you agree with that?
OPETA KAITAP: Yes, I agree with that.
MS KIDSON: There is nowhere in your outline of evidence where you refer to your mother planting a nipa tree or planting any tree of any kind, do you agree with that?
OPETA KAITAP: I agree with that.
MS KIDSON: There is nowhere in the outline when you referred to a shed being built by anyone in your family on Ului?
OPETA KAITAP: Yes, but no-one asked me that one.
MS KIDSON: Do you agree with that?
OPETA KAITAP: I agree with that, yes.
MS KIDSON: Nowhere in your outline is there reference to knowing about a well on Ului?
OPETA KAITAP: I know about a well.
840 The State’s submission about this evidence is:
While the Court would be cautious about accepting that evidence, it is ultimately not material as there is otherwise sufficient evidence to establish Mualgal occupation.
841 In cross-examination by Mr Smith, the unreliability of Pastor Kaitap’s evidence was, in my view, demonstrated:
MR SMITH: And when we were at Ului, you didn’t mention the well did you?
OPETA KAITAP: Because no-one asked me about that well.
MR SMITH: Have you ever told anybody else about the well?
OPETA KAITAP: I keep to myself and my generation coming through.
MR SMITH: You’ve never told anybody about a shed that your father built on Ului?
OPETA KAITAP: Yes, they built a shed there.
MR SMITH: Yes, but I asked well, you’ve never told anybody about that shed being built on Ului, have you?
OPETA KAITAP: Everyone knows that from Mua. Everyone knows about that.
842 A recording of what Pastor Kaitap told Dr Hitchcock in 2019 was also put to him, with that recording being tendered. It is clear that he told Dr Hitchcock that he had not camped at Ului. It appears he also did not tell Dr Hitchcock about the well on Ului, or his family’s garden or hut.
843 Despite the challenge from the Badulgal respondents, I consider Pastor Kaitap was doing his best in his evidence to recall the 2019 conversation with Dr Hitchcock. I find he had no active recollection of it. He may have started to guess at what had been said. I do not consider he was being evasive or dishonest during the cross-examination about what he told Dr Hitchcock. I am unable, however, to find his evidence about the hut, the garden and knowing about the well on Ului and cleaning it out, reliable. It was not apparent to me he was speaking from a clear recollection of those events. Again, it is inconceivable in a case with the subject matter of the present one that Pastor Kaitap would not have been encouraged to provide this information during witness preparation. There is no record of this kind of information by either Dr Murphy or Dr Hitchcock. These topics are central to this dispute and Dr Murphy in particular prepared an entire report about the islands in 2015. I am confident if Pastor Kaitap had an active recollection of these matters, he would have volunteered the information, and would not have waited to be asked a particular question. He struck me as an intelligent person who is capable of appreciating the significance of this evidence. In any event, I infer he was asked about these topics in proofing, because other witnesses gave evidence about gardens and because it was one of the most prominent aspects of the case of the Badulgal respondents. Given the contents of his outline, it is clear he did not say anything about these matters. I make no findings about how his oral evidence came about. I simply do not accept it as probative because I do not find it reliable, and I will leave it at that.
844 Titom Nona’s evidence is consistent with my conclusion that there is no real evidence of Mualgal having gardens on either island, and certainly not intergenerational gardens.
845 His evidence was:
MR McAVOY: And you haven’t heard anything about gardens owned by Badulgal people on Warral.
TITOM NONA: No. Only people – what people saying. Because beside what we do we got some other things to attend to, like - - -
MR McAVOY: You - - -
TITOM NONA: - - - it’s not only Warral and Ului. We got so many things to do.
MR McAVOY: I understand. You’re - - -
TITOM NONA: Mm.
MR McAVOY: - - - a busy man.
TITOM NONA: Yes.
MR McAVOY: But you’re the applicant on this claim.
TITOM NONA: I’m the applicant, yes.
MR McAVOY: And I just want to confirm, you hadn’t heard anything about those gardens.
TITOM NONA: Well, to tell you the truth, I didn’t hear anything about Tamwoy, didn’t hear anything about Nonas; I only hear things about – garden about Lazas and Jackonias and one belongs to my uncle Morris on Ului.
MR McAVOY: Your Uncle Morris from – Nona.
TITOM NONA: Yes.
MR McAVOY: And have you heard anything about a [Nomoa] garden?
TITOM NONA: I don’t know - - -
MR McAVOY: - - - on Ului?
TITOM NONA: Only I heard some stories when Uncle Ronnie tell us story, yes.
MR McAVOY: And when did you hear that?
TITOM NONA: Oh, not most of the time; sometimes. Like when we sit down and having a yarn, that’s where all the conversations . . .
MR McAVOY: And you haven’t heard anything about any Mualgal gardens on Warral, have you?
TITOM NONA: No, I haven’t heard anything.
MR McAVOY: Or Mualgal gardens on Ului?
TITOM NONA: No, I haven’t heard anything.
(Emphasis added.)
Expert evidence
846 In his report, Ray Wood expresses a general opinion about how Badulgal and Kaurareg ancestors gardened on Warral prior to the British assertion of sovereignty:
None of the three communities were in permanent occupation of the Waral and Ului islands, if ‘permanent occupation’ is given the meaning of continuous transgenerational residence, but there is good evidence that the area was extensively used and its resources valued prior to sovereignty. There is evidence from informant accounts that individual families from Badu and Kaurareg had houses and a garden on Waral, over discontinuous periods. Stone fish traps visible around the coast of Ului from the air suggest the possibility that there was a village there at some period in prehistory, but there was none by the time Europeans entering the region in the 19th century recorded their observations.
Claimant accounts from all three groups includes clear evidence that members of all three communities have historically and made use of the islands’ resources and continue to, and that the islands and reefs around them are valued highly for their, turtle eggs, wild tubers, and crayfish, and as a waystation during trips between the main islands of Badu, Moa, and Hammond Island.
847 I note Mr Wood does not specifically attribute these fish traps to the Kaurareg People. I note he also does not mention Mualgal gardens.
848 In cross-examination, Mr Wood was asked about the identity of his informants about Badulgal and Kaurareg gardens, to ascertain who had told him about the Kaurareg gardens on the two islands. He gave this response:
MR WOOD: Yes, no – look I can see that doesn’t conform to normal standards but it’s a product of haste. But I’m just acknowledging that both in speaking with Badu people, but in the transcript, you know, there’s quite a bit of evidence brought forward by Badu witnesses that their people did - and indeed I’m just acknowledging the broad status of the evidence that Badu and the Kaurareg one of course is the Wees Nawia case where Mrs Nawia, who I had tea and scones with several times at Kubin, told me this - and in very warm recollections of it all and so I find no basis for the scepticism about her evidence on that point. Nor would the Badulgal people - - -
849 Thus, in reality the only piece of evidence about gardens on Warral can be traced to a story about a garden belonging to Wees Nawia. Mr Wood became in my opinion a little enthusiastic in generalising beyond this.
850 Mr Leo’s view of the lay evidence was that Badulgal were gardening on the islands prior to the British assertion of sovereignty:
Another set of witnesses’ accounts set out below pertain to gardens and groves on Warral and Ului. This oral history tells of it occurring into the early to mid-1900s, and tells of such in terms of three generations of gardening that evidently goes back into the late 1800s. Considering a generation can conservatively be regarded as a 30-year period, then a three-generation garden can exist for 90 years. This means that it is likely that some of those eight gardens and groves date back close to, if not before, Effective British Sovereignty. Most relevantly, all eight belong to Badulgal families. In my opinion, this is highly supportive of numerous Badulgal individuals having Rights & Interests in Warral and Ului at sovereignty, and in turn, is highly supportive of a Badulgal clan(s) and/or tribe(s) having collective Rights & Interests in Warral and Ului at sovereignty.
(Emphasis omitted.)
851 I accept this evidence. As I have said elsewhere, I found Mr Leo’s evidence to be very helpful. He was objective, careful, and insightful. He was interpreting the lay evidence, that can be accepted, but he was doing so as an anthropologist and I found what he said consistent with the views of the evidence that I have formed. His emphasis on matters such as intergenerational activities as manifestations of likely more traditional practices were opinions I found persuasive.
852 In contrast, Dr Murphy’s view in his report for this proceeding is that gardens were not made at Warral and Ului prior to sovereignty, since the historical evidence appears to relate to the early post-sovereignty period. Dr Murphy also considers the significance of gardens has increased post-colonisation:
There is one matter not addressed in my previous reports but which has been a topic of evidence in the present proceeding; that is changes in the practice and significance of gardens.
Pre-sovereignty gardens at each of the three relevant island groups were probably fairly basic, with gathering and replanting of wild yam suckers, and cultivation of coconuts, sugar cane and bamboo reported among the Kaurareg. Beckett states that at Badu there was:
cultivation of sweet potato, bananas and yams, as well as taro. But the indications are that the people relied mainly upon wild yams and other tubers, wild plum and, in the wet season, mangrove pods, from which an edible paste called biyu could be prepared. (According to tradition it was this last food that attracted settlers from Mabuiag before colonisation.)
In the early colonial period, influenced by Pacific Islander missionaries and other immigrants who arrived, there may have been an increase in gardening activity for a period of time, but by the late 1950s there was very little gardening, with most subsistence commodities obtained in the cash economy. The stories of gardens at Warral and Ului that told by the witnesses in the current proceeding evidently date to sometime before the late 1950s.
In my research on the PNG mainland in 2002-2005, in the coastal region adjacent to Torres Strait, where hunting, fishing and gardening continues to provide the main source of food, I found that it was commonplace for people to make gardens on other people’s land. It was always done with permission, but the fact that a person makes a garden in a place is no evidence at all that they own the land. I consider it likely that a similar situation pertained in Torres Strait when gardening was common practice.
If that is the case, there appears to have been a change in the significance of having a garden in a particular place, as an assertion that an ancestor made a garden is commonly put forward as evidence for making a claim to ownership of that place.
853 I do not accept this opinion as conclusive. I certainly do not accept Dr Murphy’s opinion, transposed from other experience, that it was “commonplace” to find gardens on other people’s land. There is no support at all for that opinion in the lay evidence. No witness gave evidence to that effect. All spoke in quite a proprietary way about their family’s gardens. The earlier connection reports to which I have referred earlier in these reasons support my conclusions, and are not consistent with Dr Murphy’s opinion. As for the somewhat bald assertion that it was Kaurareg who were engaged in pre-sovereignty gardening (including implicitly on these islands), that assertion is directly contrary to Mr Southon’s analysis in his 1997 report, which I found more objective. It is also without any evidentiary base whatsoever in relation to Warral and Ului. It borders on irrational that during times when travel was by canoe, Kaurareg People would establish gardens for themselves all the way north on Warral and/or Ului, when they had a number of home islands. There was no evidence different produce could be grown on Warral and Ului from the Kaurareg home islands. It would need considerable probative evidence for the Court to accept that establishing and tending to such gardens, getting to them by canoe, and then travelling back with produce to the Kaurareg home islands when the Kaurareg People had much closer islands accessible to them was a likely, or even possible, account of pre-colonisation activity by the Kaurareg People. I find this is another example of the applicant’s experts seeking to diminish evidence that was, objectively, significantly probative against the shared ownership claim.
854 Although I do not place great weight on it, in Haddon vol 5, in Anthony Wilkin’s accounts about traditional practices on Mabuiag, there is a list of gardens “owned” by individuals: see Haddon vol 5 at p 290. Given the recognised pre-colonisation relationships between Mabuiag and Badu, it can certainly be said this source is consistent with gardens as a manifestation of ownership.
855 Fr Tom also gave evidence that two Kaurareg people, Rue Buggy and his wife, lived on Warral and had a garden there. However, as the State submits, this is the only mention of these persons or this activity in the evidence before the Court.
MR McAVOY: And other garden plants: do you remember whether your father found any other garden plants at Warral?
FR PAUL TOM: No.
MR McAVOY: No.
FR PAUL TOM: But I – can I add something to that? I heard that there was – my uncle, who is Naghir – he was – he went there, he lived there, and he plant his garden there, and even Rue – Rue Buggy, and his wife. They went there too. They camp there and they plant garden there.
MR McAVOY: And who told you this?
FR PAUL TOM: And – because they – they both are Kaurareg men.
MR McAVOY: And who told you that, Father Tom?
FR PAUL TOM: Oh, Mrs Boson, Lillian Boson. One time she spoke up in the meeting. I heard her say that.
MR McAVOY: And which meeting was that?
FR PAUL TOM: That Mualgal meeting.
MR McAVOY: Mualgal meeting.
FR PAUL TOM: About Warral.
856 I do not consider this evidence can be given any real weight. It is Fr Tom’s account of something that Lillian Bosun, a Miriam Mer woman who was brought up on Mua by Wees Nawia, said at a claim group meeting in the relatively recent past. Plainly, it was said in the context of the debate which has resulted in this proceeding. All sorts of assertions might be made in that context, understandably. Mrs Bosun gave no such evidence in Akiba when asked about Warral and Ului. Even putting that matter to one side, the absence of any other records of gardens on Warral by these individuals, or any other Kaurareg People, in the comprehensive anthropological work that has been done, and in the lay evidence here and in Akiba, does not persuade me this is reliable evidence.
857 I have found the State’s summary of the Kaurareg lay evidence at [111]-[116] and [136]-[140] of its written submissions useful. Of course, this evidence is all about post-colonisation use by Kaurareg. There was no evidence about gardens being established by Kaurareg People on Warral. That perhaps is unsurprising given the other evidence which suggests Kaurareg People did not traditionally engage as actively in establishing gardens outside their home islands, and perhaps not even on their home islands.
858 The weight of the evidence in this case, together with the opinion evidence not only in this proceeding but in previous reports, and the Akiba evidence, support the proposition that the establishment of gardens was part of a traditional understanding of ownership, and that establishing gardens on uninhabited islands located within the sea country of various groups was a manifestation of ancestral occupation, and of ownership rather than permissive use. I make that finding comfortably in respect of Badulgal, as well as accepting that the evidence in Akiba suggests such a practice was widespread across the Torres Strait.
859 In relation to Mualgal, there is barely any probative evidence about gardening. There is no real suggestion that gardening as a traditional practice was unfamiliar to Mualgal, quite the contrary as Dr Hitchcock’s earlier work demonstrates. The references I have extracted earlier from Dr Powell also confirm the importance of gardens to the Mualgal on Mua, prior to colonisation.
860 The preponderance of evidence that it was Badulgal who made and maintained gardens on these islands provides considerable support for the case of the Badulgal respondents. There is no indication in the Akiba evidence that any of the Akiba witnesses knew about Mualgal gardens on either of these islands.
861 There is no probative evidence at all linking gardening as a traditional activity by Kaurareg People with either Warral or Ului. In my opinion, the applicant has not established on the balance of probabilities that gardening on uninhabited islands, and perhaps not even on home islands, was a traditional practice of the Kaurareg People prior to colonisation. The applicant has also not established on the balance of probabilities that even post-colonisation the Kaurareg People established gardens on Warral and Ului in their own right, rather than simply being aware of gardens on the islands, and perhaps seeing or visiting them, as an incident or characteristic of their relationship with Mualgal.
862 The fact that Wees Nawia, as a Kaurareg individual, may have had a garden on Warral for a limited period of time while he lived on Mua, and while married to a Mualaig woman, is said by the Badulgal respondents to stem largely from his powerful position as Chairman of the Kubin Council. There is some force in this submission, or at least that the slight but present evidence about structures or activities like gardening by Wees Nawia and his family is explained by reasons other than traditional ownership of the island.
863 Post-colonisation, any number of reasons might explain one particular family group from Mua undertaking these activities for limited periods of time. It is correct, however, as far as the evidence suggests, that there was no objection to the Nawia family establishing a hut or a garden. Given the paucity of evidence about the establishment of this hut and garden, aside from an assertion of its existence, in my opinion the evidence does not establish it was any kind of manifestation of Kaurareg ownership. It is much more likely to have been a form of permissive use, stemming from Wees Nawia’s prominent position on Mua, his marriage to a Mualaig woman, and also from continuing Mualgal acknowledgement of the difficult circumstances of Kaurareg People.
864 I also accept that in the lay evidence there was, as the Badulgal respondents put it, some “social acceptance” by members of the other two groups about Badulgal gardens on the islands, when witnesses gave an answer such as ‘I have heard of that’. I agree that is of some importance as an acknowledgement. In contrast, no other witnesses were asked whether they knew about Pastor Kaitap’s asserted family garden.
865 The applicant made this submission:
Pastor Walter Tamwoy’s evidence provides an insight into the realities of activities that constitute gardening on outer islands such as Warral. Gardening ordinarily involved planting types of yams that did not need tending, watering or replanting, and the main activity was to go there to collect the food opportunistically as marine conditions permitted. Coconuts were the only trees planted: T1434.42–1436.35. This is not at all to diminish the evidence of gardening as evidence of “occupation and use”, but it does indicate that on islands as remote as Warral, the intensity of human activity involved was not high; and certainly not at all like the activity shown in Ex B24.
866 I accept there is some force in that submission. It may well be the case that the intensity of cultivation on these uninhabited islands is not comparable to home islands. Nevertheless, the evidence demonstrated cultivation; it was an act of modifying the land. It was done for the purpose of making food available, in that sense just as on the home islands. It was intergenerational and knowledge about these activities were handed down. I consider that the activity has the attributes of ownership.
Claimant evidence
867 This was again a matter of emphasis for the Badulgal respondents. As I understood it, they placed some emphasis on this activity because, even more so than gardening, it is an activity that alters the landscape and they contend it is not the kind of activity that, traditionally, would be undertaken unless those undertaking it were doing so as owners of the land concerned. Again, Mr Leo’s report contains a useful summary of the lay evidence about burning, and again he was not challenged about the accuracy of that summary. I accept that summary, and find it probative of the fact traditional burning is more likely than not to have occurred on the two islands.
868 George Nona was the witness who gave the most detailed account of burning grasses on Warral. In closing submissions, senior counsel for the Badulgal respondents referred to the following passages of George Nona’s evidence to support this position:
GEORGE NONA: That’s Warral.
MR SMITH: And from here is there anything that you can see that you can tell her Honour about about [sic] that island?
GEORGE NONA: Yes. Now, when I was young we travel along here a lot and we mainly took this route around here and this one here, and when we went past here my father would pull up into that beach over there, and if you see one, two, three hills, he pointed – he burnt grasses there on October that time, August, October going up to Christmas. He used to burn grass there. And one time he told me that he had a garden there towards that hill, that third hill, and there’s a creek there. And he said towards that hill he had a garden there, and there was a garden of other families here, Badu families, and he said it was – he called them Sagi and not Segigi. He said Sagi and Bairas and the Tamwoy, Aka Tamwoy he said, and he didn’t point out where. No, I don’t – I don’t want to talk about that inside.
MR SMITH: Other families, yes?
GEORGE NONA: Yes, that’s there.
MR SMITH: You just directed – you said you come around this way and you come around this way?
GEORGE NONA: Yes.
MR SMITH: Can you tell me what direction you said what the directions are you’re coming from? You’re coming from where?
GEORGE NONA: Well, one time we came from TI. We came there and he burnt it, but when we’re coming from this way, you come around there and if it’s high tide we go up there, and he’d look at the grass. You can tell the grass from out there if it’s brown. And he burnt that. He back burnt on October and going that season.
MR SMITH: Okay.
GEORGE NONA: That’s how I learnt to do back burning and stuff.
869 He also gave this evidence:
MR SMITH: I understand. Did he tell you why he lit fires other than that it was his garden, why he was lighting fire?
GEORGE NONA: Well, my father teach us to backburn - back when the wind going this direction and he burnt from behind, and he burn slowly forward. It doesn’t rapid burn and kill everything, trees and everything. And it reduce snakes on that island, Warral. I’ve seen it myself. It’s full of death adders. There’s a lot of death adders on that island.
MR SMITH: Did you ever see your father go to islands owned by people other than Badulgal and light fires?
GEORGE NONA: No, not on other islands.
870 The applicant’s response to this was that while burning can be consistent with ownership, the evidence that the Badulgal burned grass on the islands does not imply that they are the only owners of the islands. In other words, Mr Nona’s evidence was not challenged at a factual level.
871 The State also submitted this evidence was probative of Badulgal occupation. The Badulgal respondents also submit that Nazareth Adidi agreed in cross-examination that Badulgal have burned grass on Warral. In the applicant’s submission, Mrs Adidi did not concede that the Badulgal did this because the island belongs to them only. The relevant passage from Mrs Adidi’s evidence is:
MR McAVOY: Do you know that sometimes people light fires at Warral to burn?
NAZARETH ADIDI: They don’t burn, only like sarup time or people - or people eat there. Our family have to go and check if they okay.
MR McAVOY: You’ve never heard about people burning the grass at Warral?
NAZARETH ADIDI: Yeah, only them don’t care people, they burn grass there. They just … with the area. When our boys who go to check because only sarup people, always them kind.
MR McAVOY: Perhaps earlier there was - I’m suggesting to you that Badulgal people burnt areas on Warral, burnt the grasses on Warral.
NAZARETH ADIDI: Mmm.
MR McAVOY: You’ve heard of that?
NAZARETH ADIDI: I always see from here. I born here and I brought up here. I see things around here.
MR McAVOY: Is there a rule for Mualgal people that you don’t burn other people’s area?
NAZARETH ADIDI: Yeah, but because of we been sharing all the time. I told you when we fire like that we have to go and just find out who set. Must be sarup, somebody sarup.
MR McAVOY: But Mualgal people don’t burn on Warral, do they?
NAZARETH ADIDI: We respect that.
MR McAVOY: So the answer is you’re saying to me that you don’t know about any Mualgal person burning the grasses on Warral?
NAZARETH ADIDI: They also do, them young people too.
MR McAVOY: Who, the people that are what you call the rangers?
NAZARETH ADIDI: Young boys. No, rangers only not long been come.
MR McAVOY: But do you know Badulgal people have been burning the grass?
NAZARETH ADIDI: Yeah, I know they do that, because that’s the way when it’s rough you have to go run behind the Warral (bilo) for TI.
MR McAVOY: Badulgal people - for some Badulgal people Badulgal say that they burn those grasses because they own that island.
NAZARETH ADIDI: Mmm-hmm.
872 These passages reveal Mrs Adidi’s somewhat begrudging approach to her cross-examination by Mr McAvoy. Ultimately, she did concede that she knew about Badulgal burning on Warral. It took quite a long time for her to make that concession. I find she understood the significance of the evidence and was reluctant to acknowledge it. However, I also accept her evidence that traditional burning might be undertaken by one group who shares an island with another group. In some ways, her accounts of Mualgal “boys” being sent to check confirms this.
873 Fr Tom was also cross-examined about burning on these islands and accepted he had seen smoke on the islands from Kubin. However, he denied it was significant to the question of ownership.
874 While the applicant also sought to rely on Pastor Kaitap’s evidence about his father burning grass at Ului to clear ground for the shack he built, I have explained why I do not consider these aspects of Pastor Kaitap’s evidence to be reliable.
875 None of the anthropologists engaged with the topic of traditional burning, or even post-colonisation burning, in detail. The three applicant experts did not refer to the topic in their reports. Mr Leo referred to the lay evidence about burning as: (1) an example of the more detailed and precise quality of the Badulgal witnesses’ evidence about the use of the islands (at [21h], [21i]); (2) an indication that a group owns land, since one does not burn other people’s country (at [344e]); and (3) a practice associated with gardening, as it can be used to clear land (at [344w]). The anthropologists were not asked detailed questions about burning during their oral evidence.
876 I find the evidence from George Nona reliable and I accept it. I agree that burning is an activity demonstrative of traditional ownership over land. I agree that under traditional custom it is unlikely to be an activity carried out on the land of other communities, unless done in conjunction with them and with their permission. While it was a relatively small aspect of the evidence, it is a probative aspect in favour of the case of the Badulgal respondents, and ironically, given Mrs Adidi’s somewhat begrudging evidence, also in favour of Mualgal.
Other source materials about burning
877 In closing submissions, senior counsel for the Badulgal respondents referred to a passage in Moore’s Islanders and Aborigines at Cape York, from which the Court might infer evidence of a Badulgal practice of burning on Warral in 1849, well before the British assertion of sovereignty:
… the Badthoos [people of Badu - Mulgrave Island] had lighted fires up on the islands, he did not know exactly what for, thought it was either in a friendly way as a signal that they were coming over to Morolag, or else it was to invite the boats which they saw to come on shore, and Mrs Thompson said it might perhaps be that there had been some row between the Rattlesnake’s boats and these people.
878 Senior counsel noted that the burning is recorded in the month of October, a month which George Nona identified as suitable for back-burning, and that, looking out from Muralag, the islands referred to in the passage are likely to have included Warral.
879 Again this is a small aspect of the evidence. The passage relied upon indicates fires are being lit for a different purpose – one of communication. However, it is the Badulgal who are identified as the lighters of the fires, so this evidence is in the category of relatively rare pre-colonisation evidence about occupation and use of Warral by Badulgal, and more than permissive use. It has some real probative value in that context.
WARFARE AND ITS ROLE PRE-COLONISATION, IF ANY, IN ACQUIRING RIGHTS AND INTERESTS IN LAND
880 The Badulgal respondents contended that, in some circumstances before colonisation, rights in land may also have been acquired through conquest, after active warfare. The victors would then enter occupation and again the system of passing down rights through ancestral occupation would continue. There was a debate about whether this happened on Mua, especially in the period just before colonisation, when there is at least one account of Mabuiag seizing land on Mua and not surrendering it until the colonisers arrived: see Anthony Wilkin’s account in Haddon vol 5 at pp 288-289. Mr Wood did not think much of these assertions: see his report at [85]. In the applicant’s submission, the evidence does not suggest that violent conquest was a basis for possessing rights under the prevailing laws and customs.
881 I accept there is insufficient evidence in this proceeding to accept that land was acquired, and kept, by conquest in the Western Torres Strait. More importantly, the evidence does not suggest this happened in respect of Warral and Ului.
882 Senior counsel for the Badulgal respondents also submitted that the evidence showed that the conflicts between the Badulgal and the Mualgal from the 1840s to the early 1870s influenced the routes taken by Kaurareg canoes on their way north to trade with the people of what is now Papua New Guinea. The inference the Court is asked to draw is that the Kaurareg People were unlikely to have occupied Warral and Ului as stopover islands pre-colonisation.
883 Senior counsel for the applicant submitted the Badulgal respondents’ emphasis on the occurrence of war between the Badulgal on one hand, and the Mualgal and the Kaurareg on the other, before the British assertion of sovereignty was misplaced. Further, it was submitted on behalf of the applicant that the conflicts in the region were transient and, even during conflict, social and commercial relations between the warring parties persisted.
884 I consider the applicant’s submissions have missed the (second) point of the Badulgal evidence on this issue, as I understood it. The point was not to prove acquisition of Warral and Ului by conquest. It was to prove the pre-colonisation conflict between Badulgal and Mabuiag on the one hand and Mualgal/Kaurareg on the other. As I have explained earlier in these reasons, I consider the evidence does establish such conflicts were prevalent, and did result in a division between those two sets of communities, although I also consider that pre-colonisation there is very little evidence about Kaurareg doing any more than trading and passing through this upper Western Torres Strait region.
885 The Badulgal respondents referred to Fr Tom’s cross-examination about warfare and its effect on the trade between Kaurareg and what is now Papua New Guinea:
MR McAVOY: Father Tom, when you were being asked questions by Mr Blowes earlier, you talked about there being war before civilised times. Do you remember that?
FR PAUL TOM: Yes.
MR McAVOY: And it was during that time of war that – I think you said Kaurareg travelled to Papua New Guinea for trade. Yes?
FR PAUL TOM: Yes.
MR McAVOY: And Kaurareg – they traded heads. Is that right? Skulls?
FR PAUL TOM: Yes.
MR McAVOY: With Papua New Guinea. That’s correct?
FR PAUL TOM: Yes. For the canoes.
MR McAVOY: For the canoe.
FR PAUL TOM: Yes.
MR McAVOY: For the canoe wood.
FR PAUL TOM: Yes. For the canoes. They built canoes.
MR McAVOY: And the wood they used for those canoes is up in Papua New Guinea.
FR PAUL TOM: In Papua New Guinea.
MR McAVOY: Not on POW or Ngurapai.
FR PAUL TOM: (Kala Lagaw Ya spoken). No.
MR McAVOY: No.
FR PAUL TOM: No.
MR McAVOY: And – sorry?
FR PAUL TOM: Sorry. I said no.
MR McAVOY: No. And do you know which way the canoes – the Kaurareg canoes travelled to PNG?
FR PAUL TOM: They go from Mua Island – from Muralag, front of Mua Island, go right up to Papua New Guinea and back in because they was bust up between Mualgal, Kaurareg and New Guinea people. Because they were sheltered by the Aboriginal people used to live at Nagir. And my grandfather, Muri, was a kid that time. They was living at Ngiangu that time. Ngiangu warriors.
MR McAVOY: So the safe way to travel to Papua New Guinea was up past Nagir?
FR PAUL TOM: Yes.
MR McAVOY: And out on the front side of Mua.
FR PAUL TOM: Yes.
MR McAVOY: To the east of Mua.
FR PAUL TOM: Yes, going that way to New Guinea.
MR McAVOY: Not through Badu - - -
FR PAUL TOM: No.
MR McAVOY: - - - and Mabuaig and up that way?
FR PAUL TOM: No.
MR McAVOY: Because it was dangerous?
FR PAUL TOM: Yes. Because they was enemies.
MR McAVOY: Enemies, and war.
FR PAUL TOM: Like, I been said – one time I said Story like that water was a war zone.
MR McAVOY: That - - -
FR PAUL TOM: You lucky to be cross.
MR McAVOY: That water - - -
FR PAUL TOM: All the water between that area.
MR McAVOY: So all the western islands were a war zone?
FR PAUL TOM: Sorry?
MR McAVOY: All of the western Torres Strait Islands were a war zone?
FR PAUL TOM: Yes. Like, island against island.
MR McAVOY: And who told you about that? It was before your time, so who told you?
PAUL TOM: I told of Stories from my mother about Mua Island. How Mua Islanders or [Badulgal] been fight one another, even (Mabubla) from Mabuaig Island come over to fight with Mualgal. And I know them Stories. And that’s how I been told, because they fight one another for woman, they try to kill the woman or take over their land, or island.
MR McAVOY: Yes.
FR PAUL TOM: That’s what the war is all about.
(Emphasis added.)
886 This evidence is consistent with, and probative of, the conclusions I have reached. I find Fr Tom was describing knowledge he had acquired traditionally.
887 There was some evidence from Pastor Kaitap about pre-colonisation conflict, but I am not persuaded it takes the matter any further. Flora Warria did give some evidence about use of Warral as a lookout by Mualgal, because of the conflicts:
MS WEBB: Okay. Do you know anything about those lookouts, anything else about those lookouts up on the top of Warral?
FLORA WARRIA: Yes, my dad said those are the lookouts for when all the Mualgal people always go and gardening there, and those who are the warriors who were there with them, they will come after and claim up those markers, and they would have (bush shells). So, if there’s a trading party coming through, especially from Badu, they …
MS WEBB: And whose warriors were on those lookouts?
FLORA WARRIA: Mualgal warriors.
MS WEBB: They - - -
FLORA WARRIA: The ones that go with them.
MS WEBB: Yes.
FLORA WARRIA: Yes, because they were more of gardeners. They were fighters but only when it was needed to protect.
MS WEBB: And you said there were some ancestors on Warral who were killed by Badulgal raiders?
FLORA WARRIA: Yes.
MS WEBB: Were they those warriors?
FLORA WARRIA: Those warriors.
888 Mrs Warria was a reliable witness and I accept she is here recounting what her father (Oza Namai Bosun) told her, and in that sense this is traditional knowledge about pre-colonisation times. It is consistent with Mualgal pre-colonisation occupation of Warral, which, although the quality and quantity of the evidence is less than for Badulgal, I am prepared to accept.
889 I found Mr Leo’s summary of the lay evidence about pre-colonisation conflict to be a very useful source. It was not referred to by the parties but I have found it persuasive. Mr Leo was not challenged on its accuracy. He says (at [125]-[138]):
A total of 12 of the 17 witnesses recounted warfare lore generally and/or pertaining to Warral and Ului. To begin with, Paul Tom (date of birth unsaid) recounted of the following:
one time I said Story like that water was a war zone … [because] Mua Islanders or (Badula) been fight one another, even (Mabubla) from Mabuiag Island come over to fight with Mualgal. ...And that’s how I been told, because they fight one another for woman, they try to kill the woman or take over their land, or island. (LET:162; italics mine)
He also knows that the Badulgal had (Spanish) swords, and thus the Kaurareg warriors ‘turned back’ to avoid them (LET:163). Paul also told of how the Badulgal massacred the Mualgal (LET:162–163).
Naton Nawia (born 1957) affirmed that he has heard stories about battles between Badulgal and Mualgal, and that the former had (Spanish) swords (LET:478).
Nazareth Adidi (born 1952) is aware of conflict between Badu and Mua that occurred “many, many years ago” (LET:523). It is ‘wrong’ according to the Bible (LET:524).
Flora Warria (born 1967) added that the ‘old people’ made a ‘treaty’ to ‘cease the hostility’ that existed between those two islands (LET:648–649). Before then, “most of the Mua people lived inland because of the tribal war that was happening” (LET:640–641), and which included attacks on Mua by Gumulgal and Badulgal who were in alliance, and which saw the killing of Mualgal warriors at Poid (LET:641–647). The Poid battle was the ‘last war’, it occurred ‘prior to 1871’, and involved Spanish swords (LET:676). Further to this:
they found the shipwreck with the “Spanish swords”. And then there was men among the Badulgal and his name was Billy, or sometimes we call him Ronnie. He taught the Badulgal and the Gumulgal the art of war. And that’s how – that’s how the last war ended. (LET:645)
Most notably, the war ‘started’ when a ‘hunting party’ came to Mua and “took the garden for which did not belong to them” (LET:647; italics mine).
Flora Warria said there were other gardens on Warral before those made by Badulgal men ‘Athe Laza’ and ‘Athe Tamwoy’. Of these prior gardeners, “some of them got killed… By maybe parties from Badu” during the ‘period’ of the ‘tribal war’ (LET:678; see also 684).
Opeta Kaitap (born 1963) similarly recounted how, “before Coming of the Light... they had a big like, you know, war between Badu, Mua and Mabuiag” (LET:759). Unlike two other witnesses above, Opeta maintains that, “It wasn’t about the land” (LET:759).
Ronald Nomoa (born 1944) recalled being told stories by Badu ‘old people’ when ‘very young’ (LET:1130). One is about brothers Waii and Sobai, who had a son called Pithai, and who fought Kulkagal warriors attacking Badu during a “tribal war between the islands” (LET:1132–1134). It was before the Coming of the Light, and maybe in the early 1800s (LET:1197–1199). Ronald also recalled that Badu warriors “stay at the beach, north-west” part of Warral “from Sunsuit Island because of there’s plenty of rocks, so if any canoes go outside, they hardly to see the canoes” (LET:1245).
George Nona (date of birth unsaid) indicated that warriors did fight to take over other people’s land, but generally they conducted raiding (LET:1286). For example, ‘Baba Isaac Charlie’ taught him that “Badu warriors would go from Warral to Muralug” and, “He called that island ar purka lagal, dawn [?] what he called was the Aborigines” (LET:1250). Once at Muralag, they would “go on head-hunting party” (LET:1251). This was ‘continuous’ raiding and not just a one-off, and the “last war was with Mua, the sword fight” (LET:1288). George noted that Waii and Sabai were two such warriors who “roamed that way and kept people at bay, kept them away from them islands”, that is, from Warral and Ului (LET:1281).
George Nona confirmed that in a photograph taken on Day 7 of the hearing, he was pointing to a hill on Ului called ‘Turanagai Dagamurr / lookout for warrior’ (LET:1240; see also 1241–1245). He was last at this lookout a ‘few weeks ago’ (circa October 2021) and made a video on his phone that was played in court (LET:1241). Before then, George went to its summit and found a trumpet shell, adding: “trumpet shells were on top of the hill for the warriors to blow to give a warning siren if enemies are to come” (LET:1244). He observed that lookouts face towards enemies, and hence that one on Ului faces Muralag.
Geiza Stowe nee Laza (born 1957) also recounted the ‘war’ that occurred “before the Christianity… in 1871” (LET:900; see also 931–932). It began when a Mualgal ‘raiding party’ attacked and ‘wiped out’ Badulgal at ‘Ului Beach’ (italics mine). That was the start of the ‘bad blood’. The Badulgal “called upon Gumulgal, Mabioc” and, “So there was that war, battle 1 and battle 2”. The battles happened on the “eastern point of Mua”. Eventually missionaries convinced the Badulgal and others to ‘put their weapons down’ (LET:902).
Referring to his mother’s father, Troy Laza (date of birth unsaid) remembered that, “Athe Aidan [Laza] also tells a story of Badu that when... the tribe on Badu was small and… the tribe was killed... and then the island repopulated” (LET:978). His grandfather also told him about the “wars… between the two islands”, Badu and Mua, that ‘Badu won’ (LET:972; see also 993–994). It started when “Mua killed one of our warriors” (LET:973), and Badu warriors then found a shipwreck with Spanish swords that they used against the Mualgal (LET:994). Hence by the 1870s the Badulgal owned Warral and Ului because they were now ‘dominant’ (LET:1000). Thus: “for Mua to come out and actively be out and about because it was still in time of warring, so you know they stay on… their island” (LET:972).
Titom Nona (born 1957) said that Badulgal attacks on Kaurareg were not for land, rather, they were for head hunting (LET:1041). He then indicated that Gumulgal acquiring land on Badu was a by-product of their alliance against the Mualgal:
one of the [Badu] warrior’s son get killed at Mua, and... Badu invited Mabuiag to come across to fight with them because of the death of that warrior son. And they fight against Mualgal and won the battle, and that’s it. So, on – when they return here [i.e. Badu], they didn’t say, “We want the land.” [but] Badulgal give them a land that our piece of Badu belongs to Mabuiag.” (LET:1041)
Wolfgang Laza (born 1965) explained that stories about Waii and Sobai were passed down his father’s line (LET:1313). They tell of how the two warriors “were very close allies with warriors from Mabuiag, the Gumalgal” and the “two groups of people used to patrol their boundary keeping other tribes at bay away from entering our territory” (LET:1304; see also 1380–1381). Warral was where “they would rest and prepare themselves to continue the voyage further down south” (LET:1305), and where “Waii and Sobai and other warriors, along with their family members would go… and stay there for some period of time until they were summoned to come back to Badu” (LET:1305). As for Ului, the large bay on the north coast was where a boat with (Spanish) swords was found by Badulgal (LET:1317–1318). Because it is a Badulgal island, “it automatically becomes our property”, so they would have taken the swords ‘without any hesitation’ (LET:1318).
Lastly, Walter Tamwoy (born 1946) reprised the matter of lookouts, this time in relation to Warral. He said that, “There is a place on top there, people that can watch for enemy like dark time warriors watch for enemies. You got that bush hills, looking in bush” (LET:1451; see also 1524–1525).
(Original emphasis.)
890 The Badulgal respondent witnesses were not challenged on their factual accounts. I accept George Nona in particular has a genuine and serious interest in the archaeology and history of the islands in the Western Torres Strait and he has acquired knowledge about those matters. It may not all have come from a traditional source, but it was not challenged and I consider it was honestly given. Some of it, as recounted in Mr Leo’s summary, may involve some speculation and some drawing together of threads where there may be other explanations, or where there may be too little evidence, but the relevant point from my perspective is that the subject matter of this is all pre-colonisation, and it centrally involved, on the accounts given, these two islands. The Badulgal witnesses were well acquainted with the head hunting purposes of some of this conflict and did not shy away from this subject matter. Again, this evidence is not about land acquired through conquest, but rather about the way the uninhabited islands, and the seas around them, were used by Badulgal (and Mabuiag) pre-colonisation. Some of the evidence is expressly tied to present day Badulgal, and was tied in this way without challenge by the applicant. Wolfgang Laza and Geiza Stow are eighth generation descendants of the warriors Waii and Sobai.
891 The evidence is relatively extensive, persuasive and probative of Badulgal native title in both islands.
THE SHARED ISLANDS DETERMINATIONS
892 In response to a question I asked during closing submissions, senior counsel for the applicant addressed the relevance of the inclusion of Dadalai in the second shared islands determination, which recognised the native title of the Badulgal and Mualgal, but not the Kaurareg People, over that island. The position of Dadalai can be seen on attachment 3 to these reasons. Senior counsel submitted that, while Dadalai is close to Warral, that does not necessarily mean that the native title holders for Dadalai should be the same as those for Warral. He noted that Warral’s location and the shallowness of its shores made it a more desirable stopover point than Dadalai, such that the Kaurareg People were more likely to have visited Warral than Dadalai.
893 Somewhat ironically, the Badulgal respondents also submit that the Court should distinguish the findings about the ownership of Dadalai and other islands in the second shared islands determination because of the different geography of Warral. In the Badulgal respondents’ submission, the existence of permanent water on Warral and its size facilitated gardening and residence in a way that was impossible on the smaller islands. It follows (they contend) that the Court is free to make a finding about the holders of native title on Warral that differs from its finding in the second shared islands determination.
894 For its part, the State’s position is that the second shared islands determination is plainly relevant to the current proceeding, and the Court should ensure that its findings on the separate questions are consistent with the findings in that determination, unless there is a logical reason for inconsistency. The State emphasises that the second shared islands determination was supported by evidence of use of those islands by camping, building structures, gardening and taking resources. While the Commonwealth’s written submissions suggested that it did not consider that the findings in consent determinations of native title in the region were relevant to the determination of the separate questions, in closing submissions senior counsel for the Commonwealth submitted that the Court should determine the separate questions consistently with the findings in those consent determinations, including the second shared islands determination, unless there is a rational basis for distinguishing them.
Claimant evidence about the Badulgal and Mualgal shared islands, especially Dadalai
895 The State submits that Flora Warria, Alick Tipoti and Wolfgang Laza each confirmed that there was no material difference between Dadalai and Warral in terms of who owns those islands under traditional laws and customs. However, the State also submits that Mrs Warria gave evidence that Dadalai was owned by Mualgal exclusively, notwithstanding the existence of the second shared islands determination. The relevant passages of lay evidence are the following. In relation to Flora Warria:
MR McKECHNIE: A final question – a final series of questions, but do you know about the island Dadalai?
FLORA WARRIA: Yes.
MR McKECHNIE: Have you ever been there?
FLORA WARRIA: Yes, three years ago I took my husband there and my other – other children and we’d have our turtle eggs there. It’s a place where we pick up orchids. Now, the secret is out.
MR McKECHNIE: Do you know that there’s been a determination of native title over those small islands including Dadalai, and that determination is for both Badulgal and Mualgal?
FLORA WARRIA: No, this was the first I heard it today.
MR McKECHNIE: Is there any difference on the Mualgal law, in terms of who owns the islands? Is there any difference between Dadalai and Warral?
FLORA WARRIA: No, because it will be a Mualgal place and in the boundary of the Mualgal people.
896 Alick Tipoti’s evidence was as follows (allowing for some rather confusing questions):
MR McKECHNIE: You – we’ve heard about Dadalai - - -
ALICK TIPOTI: Dadalai, yes.
MR McKECHNIE: - - - in the evidence. You know that Dadalai is one of those islands that have been recognised - - -
ALICK TIPOTI: That is correct.
MR McKECHNIE: - - - as being Mualgal and Kaurareg – oh, Mualgal and Badulgal?
ALICK TIPOTI: Badulgal, yes, not Kaurareg.
MR McKECHNIE: Is there any difference Badulgal law and customs as to how the Badulgal see Dadalai as opposed to Warral?
ALICK TIPOTI: I don’t see – in relation to Mualgal or Mualgal and Kaurareg?
MR McKECHNIE: In relation to the question of who owns that island.
ALICK TIPOTI: It’s Mualgal and Badulgal or Badulgal and Mualgal, whichever way you say it. So they – the question is, would Warral be any difference, right?
MR McKECHNIE: Yes.
ALICK TIPOTI: I don’t see a difference.
(Emphasis added.)
897 And Wolfgang Laza’s evidence was:
MR McKECHNIE: What about Dadalai, under Badulgal law is Dadalai treated any differently to Warral?
WOLFGANG LAZA: No.
MR McKECHNIE: So, under Badulgal law is there any difference or reason why Warral would not belong to the same people that Dadalai belong to?
WOLFGANG LAZA: No.
898 The evidence of all three witnesses is probative of the State’s contentions about there being no rational basis to distinguish ownership of Dadalai from ownership of Warral and Ului. Mr Tipoti’s evidence supports joint Badulgal and Mualgal ownership. Mr Wolfgang Laza is implicitly, I find, contending these islands all belong traditionally to Badulgal. Mrs Warria holds the same single ownership view, but in favour of Mualgal.
899 The main point is that none of these three reliable witnesses (two of them being applicant witnesses) give any rational justification for a different approach to traditional ownership of Dadalai, and ownership of Warral and Ului.
900 I confess it is almost impossible to understand how the second shared islands determination came to be made by consent while there remained an outstanding dispute about Warral and Ului, let alone Sunswit. The forensic problems that consent determination throws up in this proceeding are real. With the benefit of hindsight, if native title in Warral and Ului could not be resolved by consent, a more rational and consistent approach would have been a trial over all these areas, including Sunswit. I consider that is likely to have produced better quality evidence and to have imposed a rigour on lay and expert witnesses which was absent from this trial. Nevertheless, the Court must do its best in the forensic situation presented to it.
Expert evidence
901 The State referred to a passage from Dr Hitchcock’s cross-examination as evidence of an expert opinion that, under Mualgal traditions and customs, Dadalai is treated in the same way as Warral:
MR McKECHNIE: We’ve heard a lot about Dadalai. You accept that of those shared islands Dadalai is the closest to Warral and Ului?
DR HITCHCOCK: I believe it is.
MR McKECHNIE: It’s quite close. The evidence was that you could swim to it from Warral.
DR HITCHCOCK: It’s just, I think, to the north-west of Warral.
MR McKECHNIE: I’m interested in your opinion firstly under, just under Mualgal law and custom, is there any difference between Warral and Dadalai?
DR HITCHCOCK: For the Mualgal?
MR McKECHNIE: Yes.
DR HITCHCOCK: [Not] that I’m aware of.
MR McKECHNIE: So is there any reason why the groups that have rights under Dadalai, the traditional laws and customs, would not also have rights in Warral?
DR HITCHCOCK: Well, Dadalai wasn’t claimed by Kaurareg, it was claimed by Badu and Mua together, so my understanding is, we’ve seen that Kaurareg – that’s the northernmost part of their ancestral domain so Dadalai did not include that area. So we’d see a shifting from an area, in my opinion, of Badu and Mua sharing multiple islands as we saw in a consent determination, down to an island nearby where we have three communities saying that they have rights and interest in the island.
902 Dr Murphy gave a similar answer in cross-examination to Ms Kidson – “because Kaurareg didn’t claim it”. Neither expert gave any other justification for the difference. It is not correct that Dadalai was not ‘claimed’ by Kaurareg. In the earlier reports of Mr Wood, his informants included Dadalai and the waters around it as Kaurareg country, the sea of Waubin. In Mr Southon’s reports, he included waters all around Dadalai as Kaurareg sea country though did not list the island itself. While Dadalai was formally excluded from the Kaurareg #1 claim, that was because the second shared islands determination had been made, and it was accordingly not available. Nevertheless, in the body of the claim itself Kaurareg country was asserted to go up this far.
903 I reject the opinions of Mr Wood and Dr Murphy that the simple assertion of native title under the NTA is probative of a difference between who traditionally owns Dadalai and who traditionally owns Warral and Ului. In any event their opinions fail to take proper account of the true reach of the Kaurareg native title claims.
904 This ‘divide and conquer’ kind of approach that the splitting off of claims about Warral and Ului from the shared islands, and from Sunswit, has encouraged, makes the Court’s task in reaching the correct conclusion on native title significantly harder.
905 In his report on Buru and Warul Kawa, uninhabited islands further to the north of the claim area, and part of the first shared islands determination, Dr Hitchcock made this observation:
Indeed, it should be carefully noted that the existing ethnographic and historical documentation contains very little information about uninhabited islands in Torres Strait. This means that oral evidence from Torres Strait Islanders, as well as inferences based on what is known and documented about Torres Strait Islander society, culture and history—in this instance, what is known and documented about the society, culture and history of Boigu, Dauan, Saibai, Mabuiag and Badu—form a key component of information and evidence in support of claims for recognition of native title over such areas. What information does exist relating to small, uninhabited islands elsewhere in Torres Strait likewise may form the basis of inferences about the claim area.
906 That observation is consistent with my view of the evidence in this proceeding. It is a sentiment echoed by other experts in various reports. This feature of the available material has some material weight in the Court’s fact-finding, and explains in part why I have placed such emphasis on the lay evidence, and especially the Akiba lay evidence. All these uninhabited islands appear to have been of very little interest to the colonisers. They were of vital interest and significance to the people of the Torres Strait for all the reasons the evidence I have referred to in these reasons establishes. There was no one reason for their importance – the uninhabited islands were as much a part of people’s lives on a regular and seasonal basis as the inhabited ones. But the stories of who the various islands belong to, and why, lie very much within the knowledge and memories of Torres Strait Islanders themselves.
907 Dr Hitchcock explained how the focus on ‘home islands’ came about:
Today, the community or home island is a primary focus of identity for Torres Strait Islanders. This is in part a result of historical factors. Examples include the establishment of sedentary settlements by the London Missionary Society and colonial administration, the fostering of inter-island rivalry through the company boat scheme, and some past restrictions on inter-island travel by government school teacher-administrators, Island Councils, and local Protectors (e.g. Beckett 1987; Fuary 1993:170; Laade 1962-1964; Mullins 1995:173, 1997).
The contemporary existence of seemingly self-contained, autonomous Island communities, each with their own Island Council (since 1936) and now in the native title era, their respective Prescribed Body Corporate, can obfuscate the traditional relationships that have existed, and continue to exist, between these sociocultural groups. At a higher level of inclusiveness, and one that is directly linked to commonly observed laws and customs, the five communities fall into two dialect groups, which were identified in the fifth volume of the Cambridge Reports as the ‘Saibailaig’ (comprising the people of Boigu, Dauan and Saibai) and the ‘Gumulaig’ (comprising the people of Mabuiag and Badu). I now turn to a closer consideration of the nature of these entities.
(Footnote omitted.)
908 Mualgal were not part of this first shared islands determination, just as Badulgal were not part of the determinations over the group of islands including Muknab and Murbayl. Again, this illustrates the differences between Badulgal and Mualgal. But the point Dr Hitchcock makes about “home island[s]” being a post-colonial phenomenon in some ways, and tending to obscure traditional relationships between islands, and with islands, is also important. In my opinion, in the absence of any substantive explanation by reference to ancestral occupation and use, it increases the difficulty in understanding what rational difference there could be in traditional law and custom between Dadalai, Ului, Warral and Sunswit.
909 Drawing on the first shared islands determination, the evidence I have read leads me to respectfully agree with and adopt what Dr Hitchcock says about the way, traditionally, Western Torres Strait Islanders used the marine areas and resources available to them, an approach which places less emphasis on the ‘home islands’ than the contemporary situation might suggest:
Physical connection was enabled by the seafaring technologies, knowledge and traditions that have been possessed by the native title claim group since before the assertion of British sovereignty. Indeed, recent archaeological research demonstrates that such watercraft and accompanying maritime lore and seamanship were not only a necessary prerequisite to the successful colonisation of the Torres Strait Islands, but that the continuing viability of populations on islands such as Boigu, Dauan, Saibai, Mabuiag and Badu was contingent upon access to a wide range of resources found elsewhere on other islands (and New Guinea and mainland Australia), as well as the reefs and waters within their marine estate, and engagement in inter- and intra-group customary exchange (Barham 2000; Lawrence 1994). As Harris (1979) notes, economic interdependence was a necessary fact of life in Western Torres Strait, and alliances and intermarriage, such as those documented between the communities comprising the claimant group, were essential to societal and biological reproduction.
910 The findings of Dr Hitchcock about which groups had traditional rights and interests in these islands reflected rights that spread over a large geographic area, but made rational sense in terms of pre-colonial navigation, seasonal access to marine resources and other traditional uses of uninhabited islands (look outs, burials, and access to materials for drums being but a few examples from the evidence). Dr Hitchcock’s opinions were based largely on his informants, and the knowledge passed down to them.
911 The point of spending some time on Dr Hitchcock’s connection report and the approach to his tasks is to illustrate, once more, that there is no obvious traditional umbilical cord between Badu and Mua, in terms of ownership of other islands, just because as between each other they are geographically proximate. The evidence strongly suggests Badulgal interests radiated outward south and west, and Mualgal interests radiated outward south-east and east.
My conclusions
912 I agree with the State’s submission that the shared islands determinations, especially the second shared islands determination, are important to the correct conclusions on the separate questions. At [99]-[100], the State submitted:
As set out further below, the lay witnesses in this matter consistently agreed that the traditional laws and customs that applied to Warral (and by logical inference Ului) would be the same as those that applied to islands in the Shared Islands CD such as Dadalai. The State submits that the evidence in this proceeding, and in particular the Shared Islands CD, supports the following propositions:
(a) what is required to “occupy” an uninhabited island can be a wide variety of activities;
(b) no single activity, even gardening or the building of permanent structures, is sufficient in and of itself to support a claim of sole occupation or ownership by a single group, because such activities remain consistent with shared ownership (as is the case in the Shared Islands CD); and
(c) use and occupation for each group must be considered in light of the way in which that group uses and occupies land. For example, an absence of gardening activity cannot establish a lack of use, or lesser use, of land, in relation to a group that does not undertake gardening activities.
What this means is that the concept of “apparent use competition” is a relevant, but not absolute consideration in this matter. Some activities (such as gardening or the construction of structures) can readily be accepted as evidence of ownership, whereas activities such as collecting turtle eggs can reflect the exercise of ownership rights or permissive use. However, no one activity is dominant or indicative of exclusive ownership. Perhaps the more important point in this case is that the use of an island by one group (for non-intrusive activities) without seeking permission from any other group, does not necessarily mean that any group acknowledges or accepts that any other group has ownership rights in that place.
(Original emphasis.)
913 I accept those submissions. To them I add my findings about the lay evidence rejecting any differences at a traditional level between Dadalai on the one hand, and Warral and Ului on the other, and rejecting the expert evidence seeking to explain any difference.
914 However, it is not just the second shared islands determination that is relevant, in my opinion. The Mualgal determination over islands including Muknab and Murbayl supports the more eastern emphasis of traditional occupation and use by Mualgal, and no more than permissive use by Kaurareg even of those islands.
915 The first shared island determination is also of some importance. These cays and islands lie approximately equidistant from Badu and Mua, and from the islands of Boigu and Saibai. This determination is notable because it shares some characteristics with the three-way claim in the present proceeding: that is, some native title holders are from areas to the south of the islands, and some are from areas to the north of the islands. Since it is a consent determination, it is not possible to know what compromises were made, or perceived to be made, by the native title holders. It demonstrates the care needed in attempting to distinguish ownership from permissive use, and the need to identify substantive justifications, arising in pre-colonial times, for making the distinction. Geography may not be a good indicator.
916 In relation to the second shared islands determination, including Dadalai, and the evidence about Warral and Ului, there is much more than geography that provides probative evidence of Badulgal native title in all these islands. To a lesser extent, the same holds true for Mualgal. The absence of recognition of Kaurareg native title in the Mualgal islands determination, and in the second shared islands determination, is consistent with the views I have formed about the absence of probative evidence establishing Kaurareg native title over Warral and Ului.
917 Having dealt with a number of specific topics in my fact-finding, I turn now to draw those findings together and explain my conclusions on the separate questions.
QUESTION (A): DOES NATIVE TITLE EXIST?
918 The first aspect of this separate questions was subject to little controversy before the Court. Prior to the hearing of the separate question, the applicant, the State, the Badulgal respondents and the Commonwealth each agreed that, but for any extinguishment, native title exists in all the land and waters of the claim area.
919 The Court finds native title exists in relation to all lands and waters of the claim area.
QUESTION (B)(I): WHO ARE THE PERSONS, OR GROUPS OF PERSONS, HOLDING THE NATIVE TITLE?
920 I have made many findings to this point in these reasons which have contributed to my conclusions expressed below. The material before the Court is enormous, building as it does on Akiba, but then also containing material about Kaurareg interests, which was not part of the evidence ultimately considered by Finn J. There have been dozens of reports about this region prior to the ones prepared for this proceeding. There have been consent determinations, as well as the contested litigation in Akiba. I have done my best to consider all the material, but the point I wish to emphasise here before setting out my conclusions is my overall method in considering and reflecting on the material.
921 That method has involved trying to remain consistent with existing determinations, and to look across the wide range of material for consistent or at least compatible themes and trends in the material. In other words, I have looked for common ground, not divided ground, facts or evidence which appear to be outliers. What, overall, does the material say about a particular issue? What is the effect of the predominance of the material on this issue? I have taken that approach because the material spans long periods of time, and a wide variety of contexts. I have given particular weight to lay evidence both in this proceeding and in Akiba, but again by using the method of looking for trends, themes and commonalities in it. In doing so I have of course reflected on the reliability of the material, reliability being an attribute that is critical, but unreliability not necessarily signifying dishonesty, it is important to say. Where possible, I have attempted to go beyond bare assertions, especially assertions sourced in times after the commencement of the NTA.
The parties’ positions in summary
922 The applicant’s case remained at the end of the trial that the three groups are united in their observance of a single body of traditional laws and customs, by which the ownership of land is derived from ancestral occupation. In the applicant’s submission, there is sufficient evidence that each group’s ancestors occupied Warral and Ului, in the relevant sense taking into account Akiba, for the Court to determine that each group holds native title, with the acknowledgement of the other groups. According to the applicant, this evidence includes the agreements made in Cairns in 2015 and on Ngurapai in 2020, which the applicant submits demonstrate that the three groups observe the same laws and acknowledge each other’s connection to and ownership of the islands. Insofar as the lay evidence suggests that members of each of the three groups consider that the islands belong to them alone, the applicant submits that the fact that none of the groups requires the permission of the others to visit and use Warral or Ului supports an inference that the groups do, in reality, acknowledge each other’s rights to the islands.
923 The Badulgal respondents agree that the Badulgal and the Mualgal are united in their observance of a single body of traditional laws and customs, including the rules for land ownership derived from ancestral occupation. However, they submit that, according to these laws and customs, only the Badulgal hold native title over Warral and Ului, since they are the only group whose ancestors were in occupation of the islands prior to the British assertion of sovereignty. In essence, the Badulgal respondents’ case is that the lay, expert and documentary evidence reveals an abundance of evidence of Badulgal ancestral occupation of the islands, while there is scant evidence that the ancestors of the Mualgal were in occupation of the islands, and even less (or none) for the Kaurareg People. According to the Badulgal respondents, the Mualgal and the Kaurareg Peoples’ ability to use the islands since the Coming of the Light is a post-sovereignty development, flowing from gud pasin and family relationships.
924 The State’s position is that the Mualgal and the Badulgal hold native title in Warral and Ului, but the Kaurareg People do not. As I have explained earlier, the State’s primary position is that ancestral occupation does not provide the basis for the ownership of land under Kaurareg traditional law and custom, because the evidence in this proceeding demonstrates that the Kaurareg People rely on mythology as a basis for the ownership of land. The State submits that the evidence is unclear whether the Waubin myth encloses Warral within the Kaurareg domain, because there are conflicting accounts of how and where Pithalai marks the boundary of Kaiwalagal. The State also submits there is no evidence of any mythological basis for Kaurareg ownership of Ului. Its alternative position is that, even if ancestral occupation forms part of Kaurareg traditional laws and customs, the applicant has not discharged its burden to prove that Kaurareg ancestors occupied either of the islands prior to the British assertion of sovereignty. However, there is sufficient evidence for the Court to find that the ancestors of the Badulgal and the Mualgal were in occupation of Warral and Ului at the time of British assertion of sovereignty.
925 The State goes on to make submissions about how the native title is held, contending the evidence does not support a shared native title, in contrast to the second shared islands determination. The Commonwealth makes a similar submission.
926 The applicant submits the Court should resist placing much weight on the “community-centric” lay evidence from each group about who has native title in the islands. The applicant contends that when this evidence is unpicked, it has the effect, or in substance is saying, that no group requires the other to ask permission. In turn, that attitude or behaviour indicates that there is shared ownership, even if different community members say they have been taught the islands belong to them.
927 Like the Badulgal respondents, the Commonwealth takes no formal position on whether the Kaurareg People are united with the Badulgal and the Mualgal in their observance of common traditional laws and customs. Indeed, in closing submissions, senior counsel explained that the Commonwealth does not press for any particular finding on any of the issues before the Court at all, but rather seeks to make submissions on the legal principles that the Court should apply to determine the facts in issue. However, the Commonwealth submits that the evidence suggests that the originating basis for Kaurareg rights in land is the Waubin myth, which means that the Kaurareg People cannot hold a shared native title with the Badulgal and the Mualgal over Warral and Ului, since any native title they could hold must be derived from laws and customs different to those of the other two groups.
928 I accept that each island had to be assessed individually, as explained in my reasoning earlier. The evidence about each island was quite different.
929 The Badulgal respondents, and the State, are correct to emphasise the pre-colonisation position. That is the position about which the Court must make findings. Of course, more recent evidence may be probative of the pre-colonisation situation. But it also may not be, as I have found in relation to much of the evidence about the Kaurareg People’s connections to Warral and Ului.
930 My findings reflect at a general level an opinion that there has been a contemporary movement, amongst some island community members at least, towards shared ownership as a preferable way for those communities to organise themselves going forward. Obviously, not all members of the communities agree, and I am confident the real situation is far more complex than I have described, especially in terms of why people may not agree. The reasons for disagreement may, for example, stem from feelings about processes and consultation, and the circumstances of different family groups. The main point to emphasise is that in my opinion this movement towards sharing is not reflective of the situation under traditional law and custom in terms of the ownership of Warral and Ului. Witnesses such as Alick Tipoti responsibly acknowledged this.
931 By my findings in these reasons I do not wish to suggest the Court has any real idea of all the dynamics in play in and between island communities. However, I respectfully agree with the observation by Mr Wood in his 2015 report at [79]:
The conclusion I lean to is that a formerly more diverse mix of regimes over more variably differentiated areas has been for some time undergoing simplification to a reality that is closer to a commons, but this process is uneven from one community, family, and individual to another rather than uniform and complete.
932 That opinion is consistent with much of the evidence in this case. How the Court has answered the separate question clearly does not reflect contemporary views amongst many Kaurareg, Mualgal and Badulgal about what the ‘best’ arrangement going forward might be. But that is not what the Court has to decide. In an adversarial process under the NTA there is no room for the Court to give effect to a post-colonisation movement towards ‘commons’ in a contested proceeding. The Court must decide first if the applicant has proven its case in accordance with the NTA, and if it has not, what the evidence establishes was more likely than not the native title situation in pre-colonisation times.
933 My views, as I have explained, are that the forced removal and displacement of the Kaurareg People has resulted in a remarkable closeness with Mualgal. The Mualgal embraced the Kaurareg People and shared their land and marine resources with them. The alignment is borne out in much of the evidence, but was also observable during the trial. This in my view is the principal explanation for the heightened use of Warral by Kaurareg People over the last few generations, including because the Kaurareg removal has led to such close family ties that people commute a lot more between the Kaurareg home islands and Mua. With more modern boats, and no contemporary need to avoid Badu or the Badulgal as I have found was the case in pre-colonisation times, Warral has become a common stopover point. It is perfectly understandable that Kaurareg People have developed a proprietary feeling about the island.
934 Ului is treated differently in the evidence, with much less prominence of Kaurareg justifications for ownership arising from visitation. There was evidence about use of marine resources, although that evidence was proportionally smaller. I find Kaurareg use of Ului and its surrounding marine resources has the same explanation. As Mualgal traditionally used Ului and the waters around it, so in my opinion it is more likely than not that Kaurareg People were also invited to do so once they were living on Mua, even if the invitation was neither express nor formal. It was gud pasin to share Mualgal country and its resources with their displaced Kaurareg brothers and sisters, and that is what Mualgal did. These practices continued to the present day. That is what I find the evidence establishes is more likely than not.
Findings which pertain especially to the Kaurareg People
935 I have rejected the applicant’s primary position that all three groups acquire and pass on rights under traditional law and custom by ancestral occupation, at least insofar as it concerns Warral and Ului, and, more likely than not, all uninhabited islands and the sea. I have found Kaurareg have a different normative source – the Waubin narrative. I have found the applicant has not discharged its burden of proof that Kaurareg have rights in Warral by reason of the Waubin narrative. I have made the same finding, much more readily, about Ului.
936 The remainder of the evidence does not persuade me that, even if the evidence about the Waubin narrative is weak, and somewhat inconsistent, there is otherwise a firm probative foundation for a finding that Kaurareg had, pre-colonisation, traditional rights in Warral and/or in Ului.
937 In other words, even if I am wrong about the role of the Waubin narrative as a source of rights and interests for Kaurareg People in land and waters, and the correct position is that Kaurareg People acquire and pass on rights to land and waters through ancestral occupation in broadly the same way as Badulgal and Mualgal do, then I am not persuaded the evidence demonstrates it is more likely than not that Kaurareg People have native title in Warral, or in Ului, by reason of ancestral occupation.
938 Since this central conclusion is adverse to the Kaurareg People, and to the applicant’s case, I consider it appropriate to collect here the main aspects of the evidence which I consider tend especially persuasively against Kaurareg holding native title in either of the islands.
939 To this point in my reasons, and by category, I have explained what I see as the weaknesses, gaps or positively adverse features of the evidence in relation to Kaurareg native title in either of the two islands. Notably, the following categories, overall, do not support the applicant’s case about the Kaurareg People (with or without the Waubin narrative):
(a) the Akiba evidence;
(b) the second shared islands determination;
(c) the Aidan Laza map;
(d) earlier connection material;
(e) evidence about permission and occupation;
(f) evidence about gardens;
(g) evidence about burning;
(h) pre-colonisation sources, including about war and conflict and navigation routes; and
(i) the lay evidence overall in the proceeding, especially the Mualgal evidence.
940 I say the ‘lay evidence overall’ because of course there are instances of evidence in each of these categories which may be seen to support the shared ownership claim, and Kaurareg native title in the islands. The applicant’s submissions highlighted these instances. However, I have tried to step back and look at the weight of the evidence, the themes and trends in it, in order to assess its probative value one way or the other, and I have explained what evidence I have found most persuasive, and why.
941 There are some further topics which have contributed to my reasoning which should also be set out.
942 In final submissions, senior counsel for the applicant made much of the use of double outrigger canoes by the Kaurareg People and the trade they conducted with the peoples of what is now Papua New Guinea in order to obtain canoes, or timber for them.
943 The use of double outrigger canoes in the Torres Strait was described by Finn J in Akiba at [24]:
The historical evidence is that the peoples who settled in Torres Strait and their descendants were, and remained, a maritime people. A major symbol of their pre-colonial presence was the large (up to 20 m in length), double-outrigger, sea-going, sailing canoe: see Attachment 3. They were able to travel long distances. These canoes were acquired from Papua through a complex system of exchange and payment (to which reference will be made below). While no direct evidence exists for the antiquity of canoe technology in the Strait prior to historical records (McNiven, 2008, [103]), it has been suggested the double outriggers may have been around for over one and a half millennia: Barham, 2000, 299. The islands were bereft of a wood supply suitable for the manufacture of such craft. The evidence equally suggests that each inhabited island possessed a sufficient number of these canoes to be able to transport the island’s population. Their uses, as colloquially described, were for flight, fight and food. As the historian, Steve Mullins, has put it:
It was the craft that brought them to the Strait, enabled them to exploit the region’s rich marine resources efficiently, allowed them to be part of a wide network of communities and to import from a range of sources the things they needed or desired.
944 It may be accepted for the purposes of this proceeding that there is persuasive evidence that, before colonisation, the Kaurareg People used double outrigger canoes, at least for some purposes, including longer distance travel for trade. However, senior counsel seemed to be suggesting that this somehow strengthened the evidence about Kaurareg native title rights to Warral and Ului. There was no evidence that the route taken by Kaurareg in double outrigger canoes, or indeed any canoes, even came close to Warral and Ului. It is the route that matters, and there are no material facts from which any inference about routes going near Warral and Ului could be drawn. What evidence there is about pre-colonial times suggests Kaurareg went further east, around Muknab and Murbayl, in part to avoid Badulgal and Mabuiag, with whom they did have conflicts, as did the Mualgal. The evidence suggests that pre-colonisation there may have been some alignment between Mualgal and the Kaurareg.
945 There was also some lay evidence supporting more easterly travel as a traditional route. For example, Enid Tom’s description, and demarcation on a map that was subsequently tendered as an exhibit, of the route she took as a child with her father to the east when traveling to Mua. See also Eliziah Wasaga’s description in examination-in-chief of not travelling to the West of Warral, and in cross-examination of travelling between Kubin and Ngurapai by way of Prakal Maza, to the east (transcript at p 369, ll 14-45).
946 As the Badulgal respondents submitted, there was also evidence supporting a closer relationship of Kaurareg People to other Torres Strait Islanders to the east. In particular, the Badulgal respondents pointed to Barbara Thompson’s account of visits to Muralag by other groups, and particularly of visits by Kulkulgal. These accounts were put in cross-examination of Dr Murphy, Mr Wood and Dr Hitchcock. This cross-examination focused particularly on the following account by Thompson, as recorded in Moore (at pp 202-204):
What number of canoes, what tribes have visited Moralug during the last 12 months? [Brierly’s question.] I would say the only people who have come onto our island within the last 12 months are the Badus and the Kulkalagas, and the Gudang people from Cape York. The Badus came over last malgui [indeterminate period between wet and dry seasons] and remained for three months with us. I think they remained nearly three months.
…
After the Badus went away, the Kulkalagas came over. They had at least a dozen canoes. The beach was quite full of them. I should think that at least 300 people came over. They brought all of them, old people and women and children with them and left no one but Quiqui, who they thought was drowned, upon their island [see pages 176-77]. I should think they stopped about two months. They were there till within a fortnight of the time I came away from moralug. Their canoes [were?] very [full?]. They brought over nookie marappi – bamboos for water ; sagooba marappi – bamboos for tobacco; the pretty mats they call manalli; dibi-dibis; bows and arrows; upis – bamboo knives for cutting off heads; koosoos – coconut shells scraped out and carried together in twos for getting water; yegallii – a kind of line they make from the coconut fibre and our people use for securing the gapu when they catch turtle with it; wakaus – plaited bands worn by the men around the waists; sugarl – neck ornaments. They brought over also a good deal of bisi [sago]; it was made up in hard lumps about as big as a man’s fist.
Sometimes they bring over sugar cane plants, they have plenty of bananas and coconuts, and quantities of dried turtle. Their dried turtle is made from the oosoo [loggerhead] which they catch in the kuki [wet] season. They also brought over some kind of yams which our people have not got – a purple kind which they call sagooba. The sagooba is long and narrow; bitzar is another kind, shorter and rounder and of a lighter colour than the bizar [Sagooba?]. They bring over small leaves of tobacco which they grow. They dry it over the fire. They bring over coconuts and pretty baskets.
… The Kulkalaga bring their things over as presents for our people, not by way of exchange. They eat our people’s kotis [yams]. Sometimes our elople may take something across, as Peaqui did the dried fish, and the Kulkalagas gave him a canoe. When the Kulkalagas went away this year, they gave Peaqui and Manu each a canoe.
(Original emphasis, annotations to text in original.)
947 While this account might demonstrate interaction between Kaurareg and Kulkulgal, of course it also demonstrates some interaction between Kaurareg and Badulgal. However, Barbara Thompson’s account of the considerable amount of food and wares brought by the Kulkulgal for trade might suggest a closer relationship to the east. It is not especially probative of any specific alignments in my view and certainly not probative of any Kaurareg traditional rights in either Warral or Ului.
948 There is further evidence about the pre- or at-colonisation sailing routes taken by the Kaurareg People. In his 2015 Warral and Ului report, Dr Murphy states at [45]:
From the 1790s to the 1840s there was a steady increase in the frequency of European ships traversing Torres Strait but the available charts were incomplete and inaccurate in places, and a number of ships were wrecked in this period. The main route of passage through the Strait entered in the north-east and travelled south-westwards past the Eastern and Central Islands, then from Nagi went through Endeavour Strait to the south of Muralag, so it is likely that the Kaurareg people of the Muralag group of islands encountered passing Europeans from time to time, but Waral and Ului were not on the direct route of passage, and nor were Moa and Badu.
(Footnote omitted.)
949 Indeed, Dr Murphy in this report was at pains to emphasise the poor state of relationships between Badulgal and Kaurareg at this time:
By 1867, when the missionary Rev F.C. Jagg and the mission teacher W.T. Kennett were stationed Somerset, Kennett (1979: 247) described the relations between the Kaurareg and Badulgal groups as a “destructive war” and a “feud”:
Each tribe was, I believe, heartily tired of a war which had considerably thinned their numbers and were anxious for peace, but neither party would ask for it. In this difficulty, the Korraregs applied to us for assistance and we agreed to accompany them to Mulgrave Island [Badu] and endeavour to make peace for them.
950 Dr Murphy then describes the attempts (not on Badu but on Kirriri) to make peace, and continues (at [52]-[53]):
It may have been that hostilities between the Badulgal and Kaurareg ceased after this, as Chester wrote four years later, in 1871:
until last year they [the Badulgal] have congregated every S.E. season at the Prince of Wales group in readiness to take advantage of any disaster that might occur to shipping. It was these people who instigated the ‘Sperwer’ massacre in 1869 and of the three tribes that took part in that tragedy are the only one that has escaped all punishment.
This appears to imply that the Badulgal were at Muralag with the consent of the Kaurareg people, and that they were engaged in raiding wrecked ships together.
Consistent with the observation that there was interaction between Badulgal and Kaurareg people, there are some marriages between members of these two groups recorded by Rivers in 1898.
(Footnotes omitted.)
951 Some “interaction” of this kind, and a newly concluded peace (even if that inference is properly to be drawn), and then only at or around the time of sovereignty in the Western Torres Strait, is hardly probative of shared ownership of Warral or Ului between Kaurareg and Badulgal since ‘before time’. The very recent cessation of hostilities suggests otherwise. What this evidence is probative of, however, is that the influence of Christian tradition, and Christian missionaries, was instrumental in the Western Islanders trying to move away from open conflict amongst themselves. It is consistent with the lay evidence about attitudes to ‘sharing’ country and resources modifying after the Coming of the Light.
952 Mr Wood was another expert who sought to make more of the pre-colonisation sources than in my respectful opinion they could bear, in an attempt to demonstrate Kaurareg used Warral in pre-colonisation times. Somehow, he also extended this thesis to Ului. In his report provided to the Court in response to Mr Leo’s 2022 report, Mr Wood states:
The [Leo] Report [e.g. [43], [45]] asserts that only the Badulgal used Waral as a lee anchorage and stopover point when en route to the Kaurareg islands, and that there is no evidence of the Kaurareg ever sailing north to Badu. The assertion does not survive the following factual data:
(a) On November 5, 1849, Brierly (ibid:103) sent a message to Manu, one of the prominent men of Muralag then visiting Cape York, but learnt that he and other Kaurareg had left for Muralag the day before and had gone on to Badu to get Brierly bows and arrows, and would return in a few days. The implication, in my reading, informed by my observation of attitudes to boat travel in the region, is that Manu and his companions thought nothing of impromptu sailing trips, even for minor purposes, and that Badu fell well within their radius.
(b) There can be no doubt that leading men of the Kaurareg travelled about the region fairly widely, including to Mua and to Nagi. Barbara Thompson said the Kaurareg were “friends” with the Mua subgroup Italgal and some Kaurareg were living with them, and that “our people” (the Muralag Kaurareg) sometimes “go over” to Nagi. She recalled specifically the Kaurareg Peaqui going there and exchanging some dried fish for a canoe from a Kulkalaig man who was cultivating Peaqui out of an interest in his daughter, and later he and Manu going there together to pick up the canoe (Brierly ibid: 204).
(c) Most striking is Manu’s account to Brierly (1848-9:123) of his considerable trading voyages, including an occasion when he met Papuans of Kiwai appearance and traded sugar cane and sago from them far to the north-northeast at “Keewye” and “Mowat,” which are clearly Kiwai and Mawatta on the Papuan coast, areas occupied by Kiwai people (Brierly idem: 105, 122-3). He showed Brierly how and where he packed all the trade goods on his canoe. Some of the Kaurareg canoes Brierly and Macgillivray saw were around 45 feet in length, and so well capable of transporting a volume of cargo and passengers.
(d) As cited in Wood 2022 at [180], during one of the Badu-Mabuiag attacks on Mua in the 1860s, they were joined by men who arrived from Cape York and who were “half Muralag [Kaurareg], half Australian” (Wilkin in Haddon 1904:319). I take this to refer to a group of Kaurareg and their Gudang affines (i.e. not to men who were all of mixed ancestry), who either had come to settle a grievance of their own with Mua or happened to be visiting Badu at the time, but either way they were at Badu.
(e) The Kaurareg accounts given to me and set out in Wood 2015, and repeated by Kaurareg witnesses in the hearing, is that in precolonial times their ancestors visited Waral and Ului as part of the seasonal food cycle for their considerable vegetable, turtle egg, and goanna skin resources, and used it as a lee rest point during travel north, and that they themselves have done these same things. During our visit to Waral in October 2001 (Wood 2022 [156]), a number of the Kaurareg men present were clearly quite at home on and familiar with the island, and listed valued vegetable resources there, pointed to the location of a freshwater rock hole and turtle rookery, and showed Murphy and I the rock they were confident is the Pithulai site. I have found no reason given in the Leo Report for ignoring or dismissing their testimony. Oral records are evidence in indigenous land matters, not just written records.
(f) It is implausible for the Kaurareg to have a mythological tradition about Waral unless their ancestors indeed were well acquainted with the island.
I do not agree with the Report’s [173] argument that “because the Badulgal were the ones to salvage the Spanish swords from Ului sometime in the years prior to the advent of pax christiana circa 1872, at the least, the Badulgal visited and accessed Ului sufficiently regularly enough to be the salvagers of those swords, and at the most were resident at the time (for example, were tending gardens there). The salvaging of those swords also supports the view that the Badulgal had the right of salvage over what was shipwrecked upon Ului and its reefs.” I consider that had Badulgal been resident there at the time of the wreck, the seamen would have been attacked rather than escape, and that it was just a finders-keepers event, and that the proposition that because the Badulgal got the swords points to their having a special right to do so draws too much from the incident.
It is clear that the Kaurareg are much less acquainted with Ului now than they still are to the present with Waral. Nonetheless, the generation now mostly deceased (Billy and Joseph Wasaga, the Mualaig Wap Charlie, Ellen Savage, Tom Bowie, Brian Namai and some identified in Wood 2015:16-18) told me that there was also Kaurareg mythology at Ului although they could not recall the details, and their forefathers had seasonally utilized the resources there as at Waral (see Wood 2015:8).
When in Wood 2022 [31] I said that Ului’s fish traps suggest a period of past occupation by a group large enough to construct them, I mean in prehistory, as I said, not in recent historic times such as the Report speaks of, i.e. ca. 1870s onwards. There was no village there when Europeans arrived. I also did not at all mean that this village in remote time would necessarily have been a Badu village. Murphy’s 2022 report makes it evident that shifts in group identity and formation by alliance consolidation, feud cycles, sudden ruptures in alliances, and shifts in sites inhabited are on record even in the relatively short period since European records commenced in the second half of the 19th century. I infer from this, and the archaeology of Badu (McNiven (2022), that there have been many periods of instability and reshaping of group and residence dynamics over the last several millennia in the region. The Ului fish traps could date back centuries or a millennium, when there may not even have been a group identified as Badulgal or one identified as Kaurareg, or there may have been another significant group living in the Waral-Ului area and since dissipated into the two groups of the 19th century to today. The fish traps cannot be presumed to evidence Badulgal ownership nor, to be clear, Badulgal ‘conquest.’
953 My findings in response to this opinion are as follows. The pre-colonisation accounts Mr Wood relies on demonstrate, as I have accepted elsewhere in these reasons, that the Kaurareg People did indeed travel by canoe and trade throughout the Torres Strait, including up to what is now Papua New Guinea. These accounts say nothing about which route they took. In contrast, as I have set out above, some other material, and some lay evidence, suggests Kaurareg People travelled to the east, close to Muknab and Murbayl.
954 As to the capacity of Mr Wood’s informants to describe to him the flora and fauna resources of the islands, that contemporary knowledge is not in doubt. Nor is it in doubt that many of his informants were taught and shown these resources by their elders. However, the evidence does not go generally back more than one generation, and is readily explained on two bases that I have found persuasive: Kaurareg residency on Mua, and – combined with this – their permissive use of Warral in particular, as a result of their circumstances, and the resultant close familial relationships with Mualgal.
955 The evidence about pre-colonisation travel routes is not probative of native title held by Kaurareg People in Warral or Ului.
Pre-colonial interaction between Badulgal and Kaurareg
956 Barbara Thompson’s accounts of visits, or at least one lengthy visit, by Badulgal to the Kaurareg home islands was a feature of the applicant’s submissions. The applicant’s submission was as follows:
… Now, in terms of what Moore can tell about relationships between Badulgal, Kaurareg, Mualgal and, as well, the Central Islanders, Kulkalgal, and the Cape York people, Gudang, and so on, at page 171, Barbara Thompson – and Moore notes at that – this is in the first week after she met Brierly, presumably saying so as a means of establishing its reliability – where the information she provided was – mentioned trade – she said that the:
… natives of the island she calls Morolug, Prince of Wales –
… Moree-et –
Mua –
… Badthoo –
which is Badu –
… and Gamoolaga –
which is the Mabuiag people –
have a general idea that their islands lie between two large countries –
and a bit further down –
The Gamulaga people communicate directly with the Magie Daudthee garkee people –
that’s the New Guinea people – and –
… the articles obtained from New Guinea and accounts of them are transmitted to the Badthus who –
… bring them on to the Kauraragir people –
and from Badu thus –
… from whom the Badthus –
thus –
take back –
particular ki[n]ds –
… of shell –
… which the islands to the –
north –
… value very much for making their large breast ornaments.
Now, that’s a suggestion that the traffic was from Badu to Kaurareg and then Badu taking things back. That may or may not have been something which was followed a hundred per cent of the time, or we’d – and we – it might be – given the instance of Manu travelling to Badu and back in a trading kind of context, it might be reasonable to infer that that did happen, even if it wasn’t the predominant way that it happened. At pages 202 to 204, Barbara Thompson is asked:
What number of canoes, what tribes have visited Moralug during the last 12 months?
She replies that only the Badus and Kulkalagas and Gudang people of Cape York. She reports that the Badu came for nearly three months, which suggests a certain amount of ability to live together and cooperate and – even though it may have occasionally ended in some hostility. She says that:
After the Badus went away, the Kulkalagas came over. They had at least a dozen canoes. The beach was full of them. I should think that at least 300 people came over –
which is indicative of how many people were moving around by virtue of these large canoes. In fact, everybody from – it appears that everybody from (Margu) came except one person that they thought had been drowned and who apparently was, by another account of Barbara Thompson’s, mightily angry about having been left behind and did some damage in their absence. She said that the Kulkalagas stopped for:
… about two months.
… till within a fortnight of the time I came away from Moralug –
and that, on that occasion, she said, when they left, they gave Peaqui, who’s a Kaurareg man, and Manu, each a canoe. And there’s more description of the exchange that went on and the way that those canoes were acquired and paid for and so on. She also mentions a list of a great deal of food and trading items they brought with them, and will – as will become clear when we move into Akiba. The evidence in that context was that trading was not – trading expeditions were not primarily about trading; they were largely about customary exchange, finding wives, going on picnics and holidays, and for ceremonies and so on.
They were multipurpose; they just weren’t trading expeditions. And, here,
where people have stopped for a couple of months, clearly, it’s a significant social occasion and social interaction, which suggests – I withdraw that. At page 206 to 209, Barbara Thompson is recorded as recounting the first visit of the Badu while she was there, which was about two years after she arrived, and that they brought turtle in their – turtle ready to cook when they arrived. So there’s a certain amount of cordiality about that, at least at that point.
Then she’s recorded as giving the information that when Badu started for home:
… that night they reached a –
… half way between our island –
… and the Badu Islands –
and Moore, in square brackets, suggests that that might be Warral or Hawkesbury. Barbara Thompson says:
… they slept the night and got to Badu the next day, the third day after they left.
A few days later, a lot of Badu canoes came – a lot of Badu canoes appeared, and this caused some fear and hiding by people in the Kaurareg community, because, in the earlier visit, Badu people had obviously been asking about her and asking for her and, when they came this time, they were actively looking for her. More details of that event appear at page 232 when Badu left having now found Mrs Thompson and she’s recorded as giving the information that “all our people went down with them to shake hands and bid them farewell”, and as they left Mrs Thompson counted 16 canoes, and she goes onto say that unlike on other visits when Badu came, they didn’t leave any gifts for Kaurareg although they did leave a gift for her. So again it’s indicative of customary, if not regular exchange in visitation between Kaurareg and Badulgal.
On page 219 to 224, information provided by Mrs Thompson includes an account of trading with Kulkalgal and Badu on Tuesday Island, then again on Thursday Island. She said there were three canoes, three men and a canoe from
Badu and when the Kulkalgal came there were four canoes that came under sail. At 226 to 227, she gave the information to Brierly that Badulgal, after a friendly visit with Kaurareg, when they were going away murdered two people of the low part of Mua who were related to by marriage to Prince of Wales people. That may be an occasion which is discussed a little bit repetitiously in the volume and where there is some confusion, which reflects Mrs Thompson’s geocentric position in it all, are not really understanding a great deal about what happens outside and where it happens and so on.
At page 301, and Mrs Moore at this point noting that it was information given by Mrs Thompson, Brierly a week after rescue that Kaurareg “had close and frequent contact with Moa-it, Badulaig, and Gumulaig … and that they all were aware that their islands lay between …” Australia and New Guinea which may be a reference back to some of the information which I mentioned before; and Moore goes onto say it also suggests that Badulaig passed goods and information from New Guinea to Buralaig and mentions that Kaurareg sent back particular pearl shells. At page 301 again, it’s Moore’s analysis of the Brierly material mentions that the other main trading Kaurareg partnership was with the Kulkalgal of Mt Ernest.
(Original emphasis.)
957 I have not extracted all the submissions, but this gives a good indication of their theme. Senior counsel then responded to a question from me about the purpose of the evidence:
HER HONOUR: I suppose I’m still struggling a little bit Mr [Blowes], with respect to understand – I don’t think the participation of Kaurareg people in trade in the region is disputed and it’s in some of the consent determinations. But where do we go from there in terms of your clients[’] case and this proceeding? I mean the Kaurareg consent determination itself has a finding by the Court to that effect. So where [d]o we then go in terms of your clients’ case in this proceeding about Kaurareg?
MR BLOWES: Your Honour, then being part of Torres Strait Islander society. The same society which Justice Finn found that Badulgal and Mualgal were part of.
HER HONOUR: I think this is where it needs to be unpicked. What’s the proposition? Because they traded with people further north of the Torres Strait, they were part of the same society?
MR BLOWES: They are the same.
958 Ultimately all this evidence was not about pre-colonisation occupation of Warral and Ului. I infer counsel for the applicant well understood that they could not press this evidence too far. It is not a proper basis for any inferences about pre-colonial use or occupation of Warral and Ului by Kaurareg. I do not decide any of the large questions about “society”. I have made findings about the Waubin narrative, especially the aspect concerning Pithalai, as the genuinely asserted source of the Kaurareg People’s native title to Warral and Ului, and I go no further here.
Inconsistency with other determinations
959 One of the puzzling aspects of the chronologies in this matter, so far as they can be pieced together, is the ambit of the Kaurareg native title claims. Certainly in the expert reports the claims, and opinion supporting the claims, included islands in the second shared islands determination (Dadalai and Salgaingin (Tuft Rock) and presumably the waters around them); and islands in the Mualgal islands determination (Muknab and Murbayl, and presumably the waters around them). These areas were expressly stated in the particulars of the s 61 Kaurareg #1 claim to be part of the sea of Waubin. The s 61 application then (in [4] of Schedule B) purported to exclude areas covered by the previous determinations.
960 This was not a matter really touched on by the parties in this proceeding. It is difficult to know how to reconcile the express ambit of the Kaurareg native title claims in terms of how far their (exclusive) traditional native title was said to extend, with the applicant’s shared ownership model. Rather than shared ownership, Kaurareg continued to assert native title in areas recognised as belonging to other groups, even if their application formally acknowledged they could not be determined for Kaurareg. Those assertions are not consistent with the shared ownership model advanced by the applicant.
The exclusivity of the way Kaurareg frame their assertions of native title
961 Added to what I have just set out above is the exclusivity of native title asserted by Kaurareg People. The exclusive character of their native title is apparent in evidence such as the following from Fr Tom:
MS KIDSON: Thank you. So today is it - do you still see, do you still believe that Warral belongs to Kaurareg and only to Kaurareg? Is that what you see is the right position under Kaurareg law?
FR PAUL TOM: Yeah, because Kaurareg people wanted to what’s a name there on the island, they watching them adhis like before time there was no god, people watching anything. Can be rock, it can be bird, it can be whatever but when Christianity been come, they told - the Kaurareg people said, “God up there, not the rock” but Kaurareg - to Kaurareg people already believe today adhis. So they - put it that way, God come up again first there. They was watching the adhis first. Then they learn about God.
MS KIDSON: For everything you know from what you’ve been taught, you believe it’s right that that Warral only belongs to Kaurareg? Is that what you understand?
FR PAUL TOM: That’s what I understand, yeah. That’s how I understand.
MS KIDSON: And do you think that the shared claim, is it a good thing because everybody agrees to look after Warral and look after Ului?
FR PAUL TOM: Yes. In that 2015 meeting yeah, we all agree, the Badulgal, the Mualgal and the Kaurareg people all agree to share because it’s have to be that way because now we are sharing. You can’t go around Australia go to Mabuiag or go around that way; you have to go through there. Anywhere you going, to Saibai you have to go through that water. You can’t go around like big ship going around and around to go to Saibai. So we have to share. That’s our civilisation, our fathers been share that water altogether. That’s what we been try to settle down in that 2015 meeting. We all say it, “Forget about that boundary.”
962 The difficulty I have with this kind of evidence, and the multiple assertions in the anthropological material that the Kaurareg People see the areas in which they have traditional rights as exclusively theirs, even if they are talking about the sea or uninhabited islands, is that the exclusivity seems derived from the nature of the Waubin narrative alone.
963 Exclusivity is pressed, as Fr Tom’s evidence shows, in the face of what must be even to Kaurareg People the obvious proposition that other island communities have always had traditional rights in some areas. Mualgal interests in Muknab and Murbayl, to take non-contentious examples. I see this as detracting overall from the likelihood of Kaurareg having had traditional rights in Warral and Ului pre-colonisation that were shared with Badulgal and Mualgal. The assertions of Kaurareg exclusivity in lay evidence, in the content of the s 61 claims and in the expert material do not sit comfortably with the shared ownership model. They are more consistent with a contemporary compromise of that exclusivity in 2015.
Conclusion on these Kaurareg-specific matters
964 These are four additional aspects of the evidence and submissions which, together with the matters I have set out at [939], tend against the shared ownership claim, and against Kaurareg native title in either island.
Who has native title in Warral
965 I have concluded that Badulgal and Mualgal hold native title in Warral.
966 There was proportionally much more evidence about Warral. That is, I find, because of its geographic location and the fact that, on some tides and with some winds, it becomes an important stopping-off point in travel by water to and from the Kaurareg home islands. The greater proportion of evidence about Warral is also likely to be because of it having more water sources, and more land available for some form of cultivation, plus a larger reef that is more proximate to the reefs lying to the north and towards Badu and Mua. The evidence suggested marine resources were more plentiful here across the seasons, especially crayfish and turtle eggs.
967 I also accept this travel has been, after colonisation, predominantly to and from Waiben in particular, because of its function as an administrative and governmental hub for the Torres Strait. I find also that Warral is more frequently visited because of its colocation with Sunswit, where there are easily accessible beaches and good food resources.
968 Proportionally, the evidence is much stronger about Badulgal using and occupying Warral since before colonisation. There may be many explanations for this, including the apparent pre-colonisation dominance of Badulgal and Mabuiag People over the Mualgal. Accounts of Badulgal travelling in large canoes, with many people, are more prevalent.
969 The evidence is also proportionally stronger that Badulgal People occupied Warral in ways that I will describe as enduring. This includes building shelters or shacks, planting and tending to gardens, and keeping and maintaining wells. The evidence is that these were intergenerational activities. I have accepted some of Mr Leo’s evidence on these matters. The evidence of the individual lay witnesses for the Badulgal respondents was very strong. I find that especially about Ronnie Nomoa, Walter Tamwoy and Dinto (Tommy) Tamwoy. All those men were acknowledged by Alick Tipoti during his evidence. I also found Mr Tipoti to be a highly reliable witness.
970 The weight of the evidence in favour of Badulgal ancestral occupation and use has made me reflect carefully on whether the Badulgal respondents are correct in their primary contention. Without the shared islands determinations, and the persuasive points made by the State, I might have reached a conclusion that only Badulgal have native title in Warral.
971 In this section I draw together findings I have made earlier in these reasons about a number of topics that in my opinion support the conclusion I have reached. I also refer to the submissions of the parties that I found persuasive, and to some of the evidence.
972 Some of the matters from the Badulgal respondents’ evidence and submissions that I found most persuasive were as follows.
973 First, the evidence about burials on Warral. I start with an extract from Pastor Tamwoy’s evidence, because this extract also deals with an account about the Badulaig man Mr Jackonia who was living on Warral, it is said, in the late 19th century:
MR McAVOY: Can I ask you to mark that beach with your pen with another X, please? What was at that beach?
PASTOR TAMWOY: Yeah, I said Jackonia was living there before back in 18 - late 1800.
MR McAVOY: There’s a letter J in the middle of the island; can you see that?
PASTOR TAMWOY: Yeah.
MR McAVOY: Do you know something about the middle of the island?
PASTOR TAMWOY: There was a grave there for Badu people.
MR McAVOY: Did somebody tell you that?
PASTOR TAMWOY: Yeah, we was told.
MR McAVOY: Who told you that?
PASTOR TAMWOY: Another elder from St Paul - Uncle Nacko Chris. Yeah, he tell (Bura Noni). Bura Noni tell the song.
MR McAVOY: Have you seen any burials at Warral yourself?
PASTOR TAMWOY: No, people, they put him in the rock.
MR McAVOY: Did you see that or were you told that?
PASTOR TAMWOY: I know plenty on this island.
MR McAVOY: You know plenty on this island, you’re saying.
PASTOR TAMWOY: Yeah, everywhere, yeah.
MR McAVOY: People are- - -
PASTOR TAMWOY: People are buried in the rock.
MR McAVOY: You’re signalling with your hand pushing out- - -
PASTOR TAMWOY: Yeah, like small cave in go.
MR McAVOY: Yes, under a cave.
PASTOR TAMWOY: Yes, small cave they put body under. Today everywhere, I know.
MR McAVOY: Here on Badu?
PASTOR TAMWOY: This island, yeah.
MR McAVOY: Do you know if that’s- - -
PASTOR TAMWOY: Same Warral, because they do that long time ago.
MR McAVOY: So you’ve been told that?
PASTOR TAMWOY: Yeah, I’ve been told and I saw that thing.
MR McAVOY: You saw the thing here.
PASTOR TAMWOY: In Badu, yeah, yeah.
MR McAVOY: Did you see it at Warral?
PASTOR TAMWOY: No, I never see Warral.
974 Pastor Tamwoy was born in 1946, and is an older man, of, I find, quite a serious disposition. He was not given to exaggeration in his evidence, and did not embellish. His evidence was spontaneous and genuine – he could recall all the islands by name and location, and was telling the Court, in my view, from an active recollection, whether they had gardens on them and what else he knew about them. On traditional matters, and matters of life history and experience (eg the lugger time) I found his evidence clear and reliable. I found it not so reliable about more recent events such as the 2015 meeting and the authorisation meetings; my impression was he may not have grasped the details of some of these events. However, his evidence about the islands I found compelling, and his narrative about the time on the luggers was especially persuasive. That evidence is relevant to my assessment of the comparative depth and quality of knowledge of the witnesses about the islands, and the sea and marine resources around them. On this evidence about burials he was cross-examined by Ms Phillips, but his evidence remained certain and I accept it.
975 As Mr McAvoy pointed out in final submissions, Dr Hitchcock also accepted that Pitai, the son of the Badulgal warrior Waii, is buried on Warral. Dr Hitchcock confirmed he had been told that by Fr John Manas, a Mualaig man.
976 The applicant sought to suggest that evidence about burials was not as persuasive as might first appear. Mr Blowes suggested people might be buried on an island like Warral because of misadventure or accident. That was of course speculation on his part, but one cannot deny it is possible. That was not, however, what Pastor Tamwoy was describing. He was describing burials in caves, and was saying it was the same practice on Warral as on his home island of Badu. This is evidence of traditional practice. Pastor Tamwoy also told the Court Buna Noni made a song about this – another indication this was traditional knowledge. I find it is more likely than not that the ancestors Pastor Tamwoy described were being buried on their own country. Burial is a serious affair, about which there is much ritual and custom: see my recent reasons in David at [104]. I give this evidence real weight; the difficulty is there was no corresponding evidence from Mualgal. This is a good example of where, proportionally, the evidence was substantively stronger about Badulgal rights pre-colonisation, and this is the kind of evidence which gave me cause to consider carefully if there was enough evidence about Mualgal occupation pre-colonisation.
977 The evidence about Mr Jackonia living on Warral is also a matter to which I give weight. Aside from Pastor Tamwoy’s evidence, Ronnie Nomoa gave this evidence about a Mr Jackonia:
RONNIE NOM[O]A: Okay, alright I remember, sorry. Yeah, to that small bay on the southwest of Warral and that’s where Jackonia used to be - Jackonia.
MR McAVOY: Yakonia [sic]?
RONNIE NOM[O]A: Yeah, Jackonia, yeah.
MR McAVOY: Jackonia. And what was there for Jackonia?
RONNIE NOM[O]A: He and his wife also, they first married they went there. He like to plant a garden there on the valley of that area. They stay there for a while. When Aka marry his wife, when she first pregnant she go TI, born, then went - she came back. They come home Badu. They never go back because they had baby.
MR McAVOY: Did you see them living there or were you told about that?
RONNIE NOM[O]A: No. I don’t - I don’t see them. They not my age.
MR McAVOY: Do you remember who told you about that?
RONNIE NOM[O]A: First I heard this from Athe Walter, Uncle Walter Nona. Uncle Walter Nona and some others we on the boat and they yarn, this is where this one appear Albert Bowie. We was on my firstly on the boat Naianga. He said, “This is where Tom Jackonia and his mother been get pregnant” he said “on this bay here.
978 Although from my observations Mr Nomoa could get a little carried away in his enthusiasm when giving evidence, I formed the clear view he was here speaking from his lived experience. It was apparent that, of all the Badulgal respondent witnesses, he felt the tension inherent in their opposition to the shared ownership claim. Nevertheless, I find that the firmness with which he gave his evidence stems from his genuine and long-held beliefs about these two islands belonging to Badulgal.
979 There was wholly persuasive evidence about the regularity with which Badulgal use Warral and the waters around it for gathering food, particularly crayfish, turtles and dugong. See my findings at [781], [783], [789] and [801] above about how this evidence was given.
980 Numerous witnesses gave evidence about diving for crayfish. As an example, Mr Alick Tipoti’s evidence was:
MR BLOWES: Yes. And you’ve been diving around Warral?
ALICK TIPOTI: I’ve been – I go there before many times.
MR BLOWES: For what?
ALICK TIPOTI: For crayfish and fish.
MR BLOWES: And where did you do that from?
ALICK TIPOTI: Around the front. Around the front reef, yes.
981 Numerous witnesses also gave evidence about hunting for turtles and dugong. Mr Tommy Tamwoy’s evidence, by reference to a map shown to him of Warral (tendered as exhibit B27 in the proceeding) was as follows:
MR SMITH: What about where the area with the letter “G”, can you see that one?
TOMMY TAMWOY: I go turtle hunting there.
MR SMITH: So, you can catch turtle along there?
TOMMY TAMWOY: Yes, and when the tide’s good on the quarter tide and the cooli’s running.
MR SMITH: And when you catch turtle, do you use a spear?
TOMMY TAMWOY: No.
MR SMITH: How do you catch turtle?
TOMMY TAMWOY: Grab him by the flipper and push him up.
MR SMITH: So, you dive and grab him - - -
TOMMY TAMWOY: Yes, that’s because they’re always - - -
MR SMITH: - - - with bare hands and pull him back up?
TOMMY TAMWOY: And sometime they use a hook now, but before time you just grab them by hand.
MR SMITH: When was the last time that you caught a turtle with your bare hands?
TOMMY TAMWOY: Many times.
MR SMITH: The most recent time?
TOMMY TAMWOY: I’m still getting them.
MR SMITH: This year?
TOMMY TAMWOY: Yes.
MR SMITH: Can you catch dugong at Warral?
TOMMY TAMWOY: There’s a reef all around and dugong only feed with the sandy bottom.
982 Mr Ronnie Nomoa also gave evidence about hunting turtles. He said:
MR McAVOY: Is Warral a good place for other things to hunt?
Is Warral a good place to hunt other things?
RONNIE NOM[O]A: Yes.
MR McAVOY: Like what?
RONNIE NOM[O]A: Like same thing: fish, kayar, crayfish, thupmul, stingray, turtle. But Warral you can get turtle in Warral anytime.
MR McAVOY: What sort of turtle can you get at Warral?
What types of turtle?
RONNIE NOM[O]A: Green.
MR McAVOY: Green turtle?
RONNIE NOM[O]A: We only eat green turtle. Hawksbill, yes. Hawks – the other one - - -
THE INTERPRETER: Hawksbill.
RONNIE NOM[O]A: - - - Hawksbill, it’s a – good as – it’s a better to taste than a green turtle but it’s a poison because they eat coral.
MR McAVOY: Right.
RONNIE NOM[O]A: And sometime our people cut, but mostly people don’t cut turtle because just for safety-wise - - -
MR McAVOY: Safety.
RONNIE NOM[O]A: - - - from poison.
MR McAVOY: You’ve just spoken about that Hawksbill.
RONNIE NOM[O]A: Yes.
MR McAVOY: Is that something that you can get around Warral, is it?
RONNIE NOM[O]A: Yes.
983 I have also given some weight to Bruno David’s archaeological report. The parties made no substantive submissions about the report, but I find it is at least consistent with the conclusions I have reached, and contains some opinions which are probative of pre-colonisation occupation by Badulgal and Mualgal (because of the references to the shared islands off Badu). Mr David concludes:
The rock-art site, Warral 1, may offer some way of determining who came to the island in the past (remembering that most people who came there never painted on the rock walls, so we cannot say whether or not everyone came from the one place), although even here we cannot be certain through the archaeology of the exact groups who came to the island. What we can say is that the designs painted at Warral are also found in the rock paintings at Pulu, Badu, Zurath and Mua; this is so of the mari figures (Pulu and Warral), the hooked triangle (Pulu, Badu, Zurath and Warral) and the snake (Mua and Warral). However, while these designs are currently only known from the above islands (but this may change as more surveys get done on other islands), we must remember that they are also found on portable items of material culture throughout much of Torres Strait, such as bamboo pipes.
Putting together the above evidence, I conclude that Warral was probably a stop-off point during inter-island travels. The rock-art symbols are in all cases shared between different peoples of Western Torres Strait and commonly found on portable items of material culture, although as far as rock paintings are concerned we have only found such designs within the Mabuiag/Pulu, Badu, Mua and Zurath group of islands (but we must remember that much of the rock-art at these and the other islands has not yet been recorded). There are no signs of any kind of village ever having been established on Warral. Furthermore, we have seen no clear signs of ritual sites, although Warral may have had a ritual function (this is difficult to determine today because the site has been badly damaged by more recent camping), and given what we know of stone quarry sites, it is also likely that the extraction of the quartz at Warral involved ritual activity. However, no specialised ritual sites such as stone arrangements, dugong or turtle bone mounds, and shell alignments have been seen during our surveys.
(Footnotes omitted.)
984 In terms of ‘stopping off’, pre-colonisation, no party really mentioned what patterns of movement the people of Mabuiag may have had, but it seems to me from the evidence that Warral might have been used to stop over by them as well. I mention that only because of what the other evidence says about Mabuiag interactions with Badulgal and with Badu, and to make it clear that when I see references like those made by Mr David to pre-colonisation ‘stopping off’, I understand them to refer to the people from north of Warral – from Mabuiag, Badu and Mua, and not to the Kaurareg People.
985 There was also some evidence about Warral being used as a lookout by warriors in pre-colonisation times. This was given mostly by George Nona. Like Mr Tipoti, but for different reasons and in different ways, Mr George Nona has spent a lot of time trying to research and understand the history and culture of the Badulgal. It has also led him, like Mr Tipoti, to spend time with elders in a traditional oral history context, which he described in his evidence. He pointed out the lookout, Turanagai Dagamurr, to the Court on the view. His evidence was he went to the lookout some weeks before giving evidence, as instructed by the Badulgal respondents’ lawyers, and took a video of what was visible from that point. He described a wide-ranging view across seas and islands in all directions. He gave this evidence:
MR SMITH: And in the foreground in front of the video, what can you tell me about those - can you tell me anything about those rocks?
GEORGE NONA: There’s a little rocks on top of big rocks.
MR SMITH: And do you know why there are little rocks on top of the big rocks?
GEORGE NONA: Well, I was told by Baba Aidan that these were Turanagai Dagamurr, lookout for warriors, and it much significance for some reason.
986 Mr George Nona is there referring to Aidan Laza. He continued to give the following evidence:
MR SMITH: I’ll just get you to play the video for two more seconds please. I’ve stopped the video at 23 seconds for the transcript. Can you tell me what islands you can see from there?
GEORGE NONA: Yeah, that’s Prince of Wales, POW, Muralug Islanders call it.
MR SMITH: Have you been up to that place, that lookout that you went to before?
GEORGE NONA: The one I was taking - - -
MR SMITH: Went for the video.
GEORGE NONA: Yes, I did.
MR SMITH: And did you find any objects when you were there?
GEORGE NONA: I went there with Levi Baira. We were coming from TI and I told him that Uncle Aidan told me that this - this hill here facing this way is a Turanagai Dagamurr. I just go check if it was true so I run up there to check and I found a trumpet shell up there, a really old one at that area and also the rock was on top of the rocks.
MR SMITH: And do you normally find trumpet shells on top of mountains?
GEORGE NONA: No.
MR SMITH: Where do you normally find them?
GEORGE NONA: In the water I guess. The reason that we were taught by – I was told by Uncle Aidan Laza when we were youngster that the trumpet shells were on top of the hill for the warriors to blow to give a warning siren if enemies are to come, and it was normally facing towards the enemies when this was found - these areas are found.
MR SMITH: And this lookout, which direction is this lookout facing?
GEORGE NONA: Muralug.
MR SMITH: And by Muralug what’s the English name for that island?
GEORGE NONA: Prince of Wales or POW.
987 Flora Warria gave similar evidence about Mualgal warriors, and said her grandfather Wees Nawia told her about this. I accept it is plausible that Warral may have been used for that purpose, because its peak is high, and I infer gives good views north and south. The accounts from Barbara Thompson about Badulgal lighting fires might support this. I accept Mr Nona gathered some of this information in a typical oral history context. He was not challenged in terms of the veracity of what he told the Court about the information he received from people such as Aidan Laza.
988 I turn now to some of the matters I have discussed earlier in these reasons but which need to be identified as having weighed in my reasoning process in my conclusion about Badulgal and Mualgal native title in Warral. Again, it is clear that this evidence proportionally weighs in favour of the Badulgal native title in the island, rather than Mualgal. The matters are:
(a) the Aidan Laza map;
(b) the evidence about gardens, burning and burials;
(c) the Akiba evidence;
(d) the earlier connection reports;
(e) previous determinations; and
(f) what pre-colonisation evidence there is.
989 As a general matter, I accept the State’s submissions at [105]-[107], and the Commonwealth’s submissions at [61.5], [62]-[63] and [68]. I generally accept the submissions of the Badulgal respondents at [3], in terms of the evidence referred to supporting Badulgal native title in Warral.
990 However, I do not accept that native title is exclusive of Mualgal, although, as I have explained, I found this aspect of the proceeding the most difficult to reach a firm conclusion on. I have been troubled by the evidence of witnesses such as Alick Tipoti, whom I consider not only highly reliable, but insightful and informed. His Akiba evidence, and his evidence in this proceeding, was that his elders told him, and he understood, Warral belonged only to Badulgal. He has a contemporary view that the shared ownership model is the best arrangement going forward, but his evidence about rights under traditional law could not have been clearer. Troy Laza’s evidence is similarly troubling to my conclusion of a joint native title. Indeed most of the Badulgal witnesses were deeply persuasive about Badulgal-only traditional rights in both islands.
991 Then there is the issue of Sunswit. As I have explained, it is not appropriate for the Court in this proceeding to make any findings about who has native title in Sunswit, but the parties agree it is appropriate for the Court to use evidence about Sunswit as probative – one way or the other – about native title in Warral (more so than Ului, because of Sunswit’s location).
992 I note in that context that in his 2015 report Dr Murphy said this:
Sanswit and the other rocks and islands between it and the larger island of Waral are regarded by the Badulgal claimants as part of Waral. There is a coconut grove on Sanswit which is well known among Badulgal people as having been established by Badulaig man Baira. The approach from the north of Sanswit allows a relatively easy landing by dinghy, and this is a common stopping off place for people travelling south from Badu to Thursday Island and vice versa.
993 This reportage is indeed consistent with the evidence given by Tom Jack Baira in Akiba: see [381] above. There is nothing in this report which suggests that any Mualgal informants or Kaurareg informants made the same kind of assertion to Dr Murphy.
994 There is a high level of consistency, and positive assertion, in generations of Badulgal about Sunswit, as there is with Warral. The evidence concerns ancestral occupation, not just permissive use.
995 This supports the Badulgal respondents’ case that Warral belongs to Badulgal. As I explain, it is this kind of material which made it difficult for me to reach a favourable conclusion about Mualgal.
996 As for Mualgal, the State submits:
Evidence of the use by the Mualgal of the sea surrounding Warral included:
(a) Diving for crayfish;
(b) Catching dugong;
Further, there was some evidence from the other groups of the Mualgal being present on and using Warral. For example:
(a) Thomas Savage gave evidence that we would sometimes come across Badulgal or Mualgal on Warral and they would acknowledge each other – T.242;
(b) Alick Tipoti gave evidence that he had heard of Mualgal using Warral many times though he had never been with Mualgal on that island – T.835-836.
(Footnotes omitted.)
997 Much of this evidence is from Naton Nawia. On these matters about relatively traditional activities when he was a younger man, describing his lived experience, I consider Mr Nawia’s evidence is reasonably reliable. There is also evidence from Flora Warria, whom I found to be a reliable witness. Mrs Warria’s evidence demonstrated her own knowledge of Warral, as well as what she had been told by her elders. She is the daughter of Lilian Bosun, whose evidence in Akiba was that Warral belonged to Mualgal. I accept she also gave an account about warriors using Warral, which she said was information given to her by her grandfather. Wees Nawia was Kaurareg, but Mrs Warria’s grandmother was Mualgal, and Wees Nawia grew up on Mua. I infer he was describing Mualgal warriors; Mrs Warria certainly did not suggest they were Kaurareg, and it seems rationally less probable for Kaurareg warriors to be using Warral as a lookout. No account in earlier sources, or in expert reports, or in the lay evidence supported the proposition that Kaurareg warriors used Warral as a lookout.
998 Mrs Warria did also recognise, at least in part of her evidence, that Warral was shared with Badulgal:
FLORA WARRIA: Well, from the time of treaty and peace and, you know, the forefathers making a trade, I believe it’s the Badulgal too because they are part of us. I don’t – I mean by saying it’s part of us is they are part of Mua because the basket went from here to there, if you get my meaning.
MS PHILLIPS: Well, perhaps you should explain - - -
FLORA WARRIA: Okay.
MS PHILLIPS: - - - to her Honour what you mean by that, that the basket went from here to there?
FLORA WARRIA: Okay, well, the basket I’m talking about is great, great grandmother, and the grandmothers from here, and that’s our language term that we use is that she’s a basket because between – the Mualgal women have intermarriages with the Gumulgal and the Badulgal.
999 Some of Pastor Kaitap’s evidence about Warral (mostly about Sunswit) was reliable. He did give some evidence about Mualgal family visits (camping on Sunswit but going to Warral):
MR BLOWES: Can you describe the number of times and perhaps the sort of things you did?
OPETA KAITAP: Well, I’m 58 now, and all my young coming up has been passing through and always be here for crayfishing with my uncles, Garagu’s dad, James Kaitap, and Oza Bosun, Flora’s dad, and my dad, Suma, and also my uncle grandfather, Wees Nawia. We’ve been always passing through here. It was 1976, that’s the time, you know, I was with them, you know, fishing.
MR BLOWES: And what do you call this place?
OPETA KAITAP: This is Sunsuit.
MR BLOWES: And can you see any other places nearby here?
OPETA KAITAP: Yes, that’s Warral just over there.
MR BLOWES: Pointing southeast?
OPETA KAITAP: Southeast, yes, and as you go around we always camp around here. You know, it all depend when it’s a low tide, we don’t set out camp at Warral, we set out camp here closer to the edge, because that’s - - -
MR BLOWES: When it’s low tide?
OPETA KAITAP: Yes, for a low tide because of fishing time - - -
MR BLOWES: Yes.
OPETA KAITAP: - - - because we can’t get our dinghy out from there, it’s pretty low, and when it’s low the edge is right out and the dinghy - and we won’t go walking because we always swim around the edge and that time the crayfish was a lot – a lot of crayfish.
MR BLOWES: Okay. And is that a beach that you’ve camped on or is there another longer beach and them around the other side?
OPETA KAITAP: There’s another longer beach on the front, but we always have a visitor from Kaurareg, Uncle Billy Wasaga and Isaac Kanai, and Phillip Wasaga, and they always come and fish too.
(Emphasis added.)
1000 Perhaps unwittingly, but consciously, Pastor Kaitap is describing, in my view, precisely what I have found to be the situation with the Kaurareg People – permissive use, by reason of close connections to Mualgal. That evidence, given spontaneously, is of some weight.
1001 In my opinion, overall, the evidence supporting a finding of native title in Warral being held by Mualgal is much weaker than Badulgal. The four matters which have persuaded me, just, over the line of the balance of probabilities are:
(a) Some of the very reliable lay evidence, such as that from Mrs Warria. It was quantatively less than the Badulgal evidence, but still persuasive.
(b) The second shared islands determination. In this determination are islands much closer to Badu, and about which there is objective material pointing to more use by Badulgal than by Mualgal. Nevertheless, there was a shared native title recognised.
(c) The Akiba evidence. I have explained earlier why I consider this can be given considerable weight. Alick Tipoti’s evidence causes me difficulty, as I have explained. Aside from this, there is evidence from Fr Manas (although he also said Dadalai belonged to Mualgal) and Lillian Bosun supporting Mualgal native title in Warral.
(d) The permissive use I consider the evidence demonstrates about Kaurareg People on Warral. Overwhelmingly, the people who took Kaurareg there, or went with Kaurareg, were Mualgal. It is the close relationship between these two groups that I have found facilitated Kaurareg People’s permissive use of the islands, post-colonisation. Otherwise, there would be two groups permissively using Warral, and only Badulgal could have allowed that. The evidence does not support a finding to that effect. Rather, I consider Badulgal at least tacitly recognise Mualgal rights in Warral, and the extremity of some positions by Badulgal is driven by a post-colonisation, and contemporary, opposition to the ownership assertions by Kaurareg which, on the evidence, have been sometimes expressed as exclusive ownership and on any view are territorially expansive assertions.
1002 Finally, I have given considerable weight to the substantive position ultimately adopted by the State in this proceeding. I have been greatly assisted by the State’s participation in this proceeding, by the line of questioning taken, and by its submissions. The State is a critical participant in native title determinations. It agreed to recognise both Badulgal and Mualgal native title in the second shared islands determination. Its position in this proceeding has been thoughtfully and carefully prepared. I am loathe to depart from the position it has reached unless I consider I have an overwhelming justification to do so. In combination with the other matters, I do not consider any such justification is present.
1003 I have, with some hesitation, concluded that Badulgal and Mualgal also hold native title in Ului.
1004 The case of the Badulgal respondents was stronger for Ului. There was little or no reliable evidence for ancestral use and occupation of Ului by Mualgal, certainly pre-colonisation or in the decades shortly after colonisation. The lay evidence about Ului for Mualgal was meagre and some of it was unreliable.
1005 One pre-colonisation event relied on by the Badulgal respondents, but not by the State, was the narrative concerning the sinking of a European ship near Ului, and the seizure of its contents, especially swords, by the Badulgal.
1006 Dr Murphy was asked about the event in cross-examination:
MR SMITH: Wilkins also reports that there was a ship that was found by the Badulgal near Ului, stranded on an island called Ului? Do you consider that to be historically correct, based on your research?
DR MURPHY: I think it’s more than likely correct as certainly a living oral tradition among people at Badu.
MR SMITH: Have you heard that story also told to you by people of the Mualgal?
DR MURPHY: Mualgal? Yes, I’ve heard – I don’t know that there’s been a reference to it being from Ului, but I’ve certainly heard of them having the knives and the swords – they found swords on a ship. It may – Mualgal people may have mentioned it was at Ului, but I can’t recall that detail.
MR SMITH: You’ve mentioned knives. Do you agree that the Badulgal – have you heard from Badulgal people that there were knives or swords found on a shipwreck?
DR MURPHY: Yes. Spanish swords is the one that I’ve heard.
1007 Mr Leo expressed some views about the event in his report at [34]-[35]:
The Murphy 2008 Report pertains to Torres Strait Regional Sea Claim, and was explicitly produced so as to clarify certain matters arising from a conference of experts and those expert’s respective reports. The only mention of either Warral or Ului is thus:
Contemporary oral tradition speaks of ‘the last fight’ between Moa and Badu as occurring when Badu men acquired swords from a shipwreck at Ului (West Island) and massacred the population of Moa, but the detail provided by Wilkin shows that the fighting took place over a period of time and that it featured different groups and combinations of groups from either side at different times. (para65; see also corresponding footnote 96 at bottom of page)
I am minded to conclude that because the Badulgal were the ones to salvage those swords, at the least, the Badulgal visited and accessed Ului sufficiently regularly enough to be the salvagers of those swords, and at the most were resident at the time (for example, were tending gardens there). The salvaging of those swords also supports the view that the Badulgal had the right of salvage over what was shipwrecked upon Ului and its reefs.
(Original emphasis.)
1008 The State cross-examined Mr Leo about this. The applicant did not. Mr Leo’s response was:
MR McKECHNIE: But is there anything in the ethnographic record or based on your knowledge that - because what I’m reading at 35 is that it seems to me like you’re elevating the fact of salvage to be based on a right of salvage that is somehow linked to ownership. I just - - -
MR LEO: Well, I said - I would more characterise it as what I was being minded about was that they were the ones to get the swords, the Badulgal - no-one else. So - and most likely because they were obviously going there regularly or were there at the time and so they were able to - able to be the salvagers.
The right of salvage, I think that follows on from - from people regarding this as their country. I’ve got to – I’m trying to recall a section in the lay evidence where someone said something about - to that effect, you know, “They took the swords. That was our country” or something. I have to check it up. But I – it seems like, in my view, that it’s evidencing a right of salvage. It was there, they came upon their country, they take it.
1009 Mualgal witness such as Mrs Adidi were cross-examined by Mr McAvoy to in an attempt to confirm they knew this story and that it involved Badulgal people. However, I did not understand Mrs Adidi to wholly embrace what was being put to her. The reason for that was her general antagonism to the Badulgal respondents rather than, in my view, that she denied the truth of the event.
1010 I understand the State’s scepticism about how far this event can be taken. Nevertheless, I accept Mr Leo’s opinion that, in a pre-colonisation context, it is more likely than not to be indicative of ownership, and of regular use of the area, for the shipwreck needed to be discovered. I also consider it of some weight that there is no corresponding evidence about Mualgal. This is consistent with the view I have of the evidence overall, which is the predominant ancestral occupation and use of Ului was by Badulgal.
1011 Other applicant witnesses confirmed the event, but were not asked any detail:
MR SMITH: Did your grandfather tell you the story about Badu warriors finding a shipwreck with Spanish swords?
TROY LAZA: Yes.
MR SMITH: And they used those swords in battle?
TROY LAZA: Yes.
MR SMITH: That was a battle with Mua?
TROY LAZA: Yes.
1012 Troy Laza is a Badulaig and, as I have explained, I found him a highly reliable witness.
1013 There was strong evidence from Tommy Tamwoy about gathering orchids on Ului for sale, and about regular visits to the island:
MR SMITH: Have you been to Ului this year?
TOMMY TAMWOY: Yes.
MR SMITH: When was that?
TOMMY TAMWOY: Was the middle of the year.
MR SMITH: Did you come up onto the island or just come into the bay?
TOMMY TAMWOY: I come up from the island, go get the water, come down that gully.
MR SMITH: Could you just point in the direction of the gully that you’re pointing at?
TOMMY TAMWOY: Up there.
MR SMITH: Pointing up towards the left?
TOMMY TAMWOY: Yes.
MR SMITH: Is that a creek, a river, what is that?
TOMMY TAMWOY: It’s a creek. Run from the hill, coming down.
MR SMITH: Does it run some of the year, all of the year?
TOMMY TAMWOY: Not all the year, only when the wet season and like if we just go out, like this time, the water start drying on the creek.
MR SMITH: Did you do anything else when you were here, did you walk around, do anything else in the bushland?
TOMMY TAMWOY: I walk up there to get the water, and I saw some orchids, but I know which tree they grow on, so I walk up there, I pull one out, but before I pull that orchid out, I have to ask the ancestors, before I do, break it up, pull the orchid from the tree.
MR SMITH: What do you ask the ancestors?
TOMMY TAMWOY: (Kala Lagaw Ya spoken)
MR SMITH: What colour orchid was it?
TOMMY TAMWOY: Purple one.
MR SMITH: Is that an orchid that you can find on Badu?
TOMMY TAMWOY: Yes, very rare. Different area, yes.
MR SMITH: What other kinds or orchids are there?
TOMMY TAMWOY: Some yellow, some grows on the ground, the bigger one.
MR SMITH: You mentioned the tree that it grows near, what kind of tree is that, do you know?
TOMMY TAMWOY: Call tea tree, we call them Ub.
MR SMITH: So when you’re looking for orchids, do you look for the orchids or do you look for the trees?
TOMMY TAMWOY: If I go get water, I saw them trees and saw the orchids, so I pull one out.
MR SMITH: What did you do with the orchids that you took, did you take them back with you or leave them here?
TOMMY TAMWOY: No, I take them back home.
1014 Later in re-examination, Mr Tamwoy gave this evidence:
MR SMITH: And before you picked that orchid did you ask anybody else other than the ancestors for permission to take that orchid from Ului?
TOMMY TAMWOY: No, because I know that island belongs to us.
MR SMITH: Could someone from Mua pick an orchid like the one you did from Ului without asking for permission?
TOMMY TAMWOY: If I saw them there, but I don’t saw them there.
1015 One way to interpret this answer is that Mr Tamwoy never sees Mualgal on Ului, but accepts they have a right to go there, and to gather resources. It is mildly probative of a recognition of Mualgal rights in Ului. The stronger inference is that Mualgal infrequently visit Ului.
1016 Ms Stow, a Badulaig woman, gave some evidence about a trip to all three islands to clean up ghost nets left in the sea:
MS PHILLIPS: So can you tell her Honour about a recent trip that you have done to Warral and Ului, do you remember going there?
GEIZA STOW: Very recently?
MS PHILLIPS: Yes.
GEIZA STOW: Yes.
MS PHILLIPS: Who did you go with?
GEIZA STOW: I own a six metre boat, 115 horsepower Mercury, and it’s not functioning at the moment, so we been going out all the time, and I took my grandson Bainu, Bainu Laza, and cousin Bernie Joe and my partner Nabai Sabake, we went, and our trip was to go and look at anything, ghost nets, ropes, turtle eggs. So we went to Warral and we went around to where the Laza’s garden is and we pulled big ropes out of there. Nets, like I said, they get really tangled. Then we went around to the top, Sunsuit, and then we pressed over to Ului. That was two years ago.
1017 This is, I find, a description of the kind of activity that persons who are confident about their ownership of land and sea engage in. It is also significant in my view that Ms Stow’s evidence included all three islands. It is consistent with her fidelity to her father Aidan Laza’s knowledge about Badulgal country.
1018 There was ample, and often unique, evidence about Badulgal occupation of Ului. The State summarised the evidence at [131]-[132] of its written submissions and I accept those submissions. I also give weight to the Aidan Laza map in this context, and the detail it provides about places and features on Ului.
1019 Again, as for Warral there is qualitatively and quantitatively less evidence about Mualgal use and occupation of Ului. There is none that could be said to be pre-colonisation. As I have explained above, there was some lay evidence about Mualgal use of Ului which I did not find reliable: see [828]-[843], [874] above.
1020 This is what Mr Wood in his 2015 report, in support of the Kaurareg People, said about Ului:
Keeping these cautions in mind, the indicators from the accounts of Mualgal people I spoke with in 2002-2001 are for use of the Waral-Ului area by all three groups. Some said that Ului and Sansuit Islands in particular were visited and used by Badu and Moa people. Mrs Nawia recalled that Badu people used to go to Ului, and had huts there ‘use[d] for picnic place’ (pc. Oct 17, 2001). John Manas mentioned a banana garden on Ului, but said he did not know who planted it, from which I tend to infer that he did not think Moa people had (pc. Oct 17, 2001). Pelerina Bagi’s statement that many people from Poid used to camp at Waral before WWII has to cover at least some Mualgal people. Elizabeth Nawia recalled no one except herself and her husband gardening at Waral, and never saw anyone else there after the war, when, however, her visits were far less frequent and of short duration. There were, she said, people on other small islets immediately southwest of Moa and Badu. Although Kaurareg activity at Waral is well attested in what I was told, I heard less said about Ului. Although this is partly related to the fact that our helicopter visit focused on Waral and landed there, and also to the preservation among the Kaurareg and Mualgal of mythological detail for Waral and little for Ului, the implication of this is lower visitation to and familiarity with Ului. However, Pelerina Bagi observed that in the immediate post-war period Ului had no coconuts – a common Moa idiom for stating that it was not a habitation site – and said explicitly that no one was then living there; however, she was also unaware of Wees Nawia’s earlier hut and garden on Waral (pc. Oct 18, 2001). Sansuit Islet, nearly adjoined to Waral, has coconuts, which neither the Kaurareg nor Mualgal lay claim to having planted; but someone planted them.
1021 On the other hand, there is evidence from Akiba that does provide at least some foundation for a finding of Mualgal rights in Ului. At [86], the State relied on the evidence of Lillian Bosun in Akiba:
However, in her evidence before Finn J, Naton’s older sister, Lillian Bosun, said that Wees Nawia told her that Ului belongs to Mua, but “we share together, Badu and Moa”. When asked what she thought of some younger Kaurareg people saying that Ului was their place, Ms Bosun’s response was “we say ‘no’” because her father was a Kaurareg man and he said it was not a Kaurareg place (Ex A52, 979). No other descendants of Wees Nawia gave any evidence of adhi present at Ului.
1022 I have extracted that evidence earlier in these reasons.
1023 That is evidence given outside the heat of this case, and outside some of the contemporary influences arising after the 2015 mediation. It should be afforded some weight. It is probative of the inclusion of Mualgal people.
1024 But for the shared islands determination, and the Akiba evidence, the evidentiary case of the Badulgal respondents for Ului may well have supported a finding that it was more likely than not that the rights and interests in Ului under traditional law and custom reside only in Badulgal People.
1025 However, on careful reflection over all of the evidence, I have decided that the better way to see that stronger evidence is that there is a clearer pattern of regular and intergenerational use of Ului by Badulgal which could in part have a geographical explanation, that island lying closer to Badu and not being a ‘stopover’ place for those travelling north/south between the Kaurareg islands and Badu and Mua and Mabuiag.
1026 I do not consider the evidence indicates that Badulgal could rely on traditional law to exclude Mualgal people from Ului. The evidence from Tommy Tamwoy above is one example. Nor do I consider that if Mualgal people went to Ului – for example, to rest and eat after dugong hunting around it – that it would only be gud pasin that would prompt Badulgal people there to accept their presence on Ului. It would not be a permission situation. It would be an entitlement situation for the Mualgal, even if in a practical and realistic sense they were less frequent visitors. In other words, the same rules would apply as apply on Tuin, on Warral, on Sunswit and on Dadalai, even though proportionally Badulgal may visit and use these islands more frequently. It would be incompatible, and discordant with the shared islands determinations, to find that only Badulgal held native title in Ului.
1027 I have found this a difficult choice. As for Warral, aside from the Akiba evidence and the shared islands determination, I have also taken into account the State’s final position about Ului.
QUESTION B(II): WHAT IS THE NATURE AND EXTENT OF THE NATIVE TITLE?
1028 The applicant submitted that the nature and extent of the applicant claim group’s native title rights and interests is the shared right to possession, occupation, use and enjoyment to the exclusion of all others. The Badulgal respondents’ submission was that only the Badulgal have a right to possession, occupation, use and enjoyment to the exclusion of all others, including the Mualgal and the Kaurareg People.
1029 While initially the Commonwealth and the State submitted that they could provide no conclusive answers to this aspect of the separate question until after a consideration of the evidence of the applicant and the Badulgal respondents, each of the government parties addressed the Court in closing submissions on what factual findings should flow from the evidence adduced in this proceeding.
1030 The State submitted that only non-exclusive native title rights are capable of being recognised in the islands, because the evidence in this proceeding indicates that there is no single, shared native title in Warral and Ului. Rather, the State’s position is that there are separate and distinct overlapping native titles, and the common law cannot recognise exclusive native title rights in an area subject to overlapping native titles. In the State’s submission, if the Court were to find that the Kaurareg People hold a native title in the islands that originates from the Waubin myth, then that native title must be separate and distinct from any native title held by the Badulgal or the Mualgal over the islands, which does not derive from mythology but rather only from ancestral occupation and use. Further, the State submits that the evidence in this proceeding indicates that the three groups do not acknowledge the others’ claims that the islands equally and simultaneously belong to them under traditional law and custom. Rather, the evidence is that each group considers the islands truly belong to it, but the other groups are permitted to visit or occupy the islands, for reasons not solely attributable to traditional law and custom.
1031 The State submits that the Court should take the claimants’ evidence about this matter at face value, and the Court should not accept the opinions of the experts in this proceeding who gave evidence that there is in fact mutual acknowledgement, despite the claimants’ evidence that the islands belong only to their respective community. Insofar as the applicant relies on the 2015 and 2020 agreements as evidence for mutual acknowledgement, the State submits that the Court should note that those agreements were reached in order to satisfy the requirements for native title, and did not necessarily reflect the three groups’ traditional laws and customs. In these circumstances, the State submits that there is no evidence for a single native title shared by the Kaurareg People, the Badulgal and the Mualgal, or the Badulgal and the Mualgal without the Kaurareg People, since a precondition for a single, shared native title is the mutual acknowledgement of each group’s rights: Akiba at [274], [500].
1032 The Commonwealth made similar submissions about the distinctiveness of any Kaurareg native title rights in Warral and Ului. However, the Commonwealth’s position differs from that of the State in relation to the native title of the Badulgal and the Mualgal, in that the Commonwealth submits that the Court can find that the Badulgal and the Mualgal hold native title jointly if satisfied of the two groups’ evidence of ancestral occupation, despite the claimants’ evidence that the islands belong only to their respective group.
My conclusions
1033 On this matter, I depart from the State’s position as submitted. I consider the evidence comfortably supports a finding of a shared native title between Mualgal and Badulgal, in the same way recognised in the second shared islands determination. I consider, as with that determination, what is held is a title exclusive of all others except Badulgal and Mualgal. That exclusivity from other groups, including Kaurareg, came through very strongly. Even Mualgal witnesses, in this proceeding as well as in Akiba, were prepared to say their title excluded Kaurareg – I refer here to evidence such as that of Fr Manas – “they can come in”.
1034 I agree with the State that it was somewhat remarkable, in the overall context of this proceeding, that so many witnesses for the applicant claimed exclusivity for their own group. It is true that no applicant witness positively volunteered that, as a matter of traditional law and custom, the islands belonged to all three groups. As I have found earlier, that is also a notable omission from the Akiba evidence. This draws out again the difficulties I have with how to frame Alick Tipoti’s evidence.
1035 On this point, I accept the submissions of the applicant that there is a line to be drawn in how literally one assesses the “community-centric” evidence about islands belonging only to that community.
1036 It is a very human reaction in the context of this proceeding for claimants to feel uncertain about what might happen, and what the Court might decide. For both Badulgal and Mualgal, the witnesses were very certain of their own community’s traditional rights over the island. I find they chose to stay with what they were certain about, not knowing what the Court might find. That is their customary comfort zone as well – speaking about other people’s rights was something many witnesses said they would not do. See, for example, my earlier reference to Walter Nona, and the evidence of Tommy Tamwoy:
MR BLOWES: Are those stories, those Badulgal stories, are they stories that should only be told by Badulgal or can they be told by anybody?
TOMMY TAMWOY: Only told by elders. By the uncle.
MR BLOWES: By Badulgal elders and uncles?
TOMMY TAMWOY: Yes.
MR BLOWES: If it was a Badulgal story then Mualgal people really shouldn’t be talking about it?
TOMMY TAMWOY: Mualgal? They got their own stories.
MR BLOWES: Do they?
TOMMY TAMWOY: Yes.
MR BLOWES: They tell their own stories?
TOMMY TAMWOY: Yes.
MR BLOWES: Would it be wrong for them to tell Badulgal stories?
TOMMY TAMWOY: Yes, Badulgal, we don’t talk about other places stories.
1037 Therefore, I do not see the evidence of the Badulgal and Mualgal witnesses about their rights in the two islands being exclusive as necessarily probative against a finding of recognising a shared native title in Warral and in Ului, in favour of Badulgal and Mualgal. There are other more contemporary explanations for that emphasis in the lay evidence, and there is ample other evidence which has persuaded me that native title is held by Badulgal and Mualgal in the same way it is held for islands such as Dadalai.
1038 In terms of the nature and extent of the native title rights and interests in each of Warral and Ului, I am comfortably persuaded on consideration of all the evidence that the Court should recognise the native title of the Badulgal and Mualgal as joint, exclusive, native title. My present view is that any determination should follow the terms of the second shared islands determination, but I accept the parties will wish to be heard on this matter.
1039 The parties will be given some time to digest the Court’s reasons, and to propose orders about the next steps in respect of finalising a determination of native title over Warral and Ului, including finalising a description of the native title for the purposes of a determination. A case management hearing will be listed approximately a month from now, for the Court to discuss next steps with the parties.
I certify that the preceding one thousand and thirty nine (1039) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. |
Associate:
ATTACHMENT 3
ATTACHMENT 4
SCHEDULE OF PARTIES
QUD 9 of 2019 | |
WALTER TAMWOY | |
Fifth Respondent: | GEORGE NONA |
Sixth Respondent: | RONNIE NOMOA |
Seventh Respondent: | TOMMY TAMWOY |
