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

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

Since October 2021 and until October 2022, in different stages and in different locations, the Federal Court has been hearing a case under the Native Title Act 1993 (Cth) about the islands of Warral and Ului, in the Western Torres Strait. Warral and Ului are not permanently inhabited islands, but they and the reefs and waters around them are well known to the people of the Western Torres Strait as areas that have good seasonal resources. Warral is also known in the region as a stopping-off point for people travelling between the Kaurareg home islands and the islands of Badu, Mua and Mabuiag.

Warral and Ului were first claimed under the Native Title Act by the Badulgal People. Then the Kaurareg People put a claim over them. Then the Mualgal People also joined to claim them. In 2015, there was a mediation arranged by the Federal Court. It resulted in an agreement that the three groups – Badulgal, Mualgal and Kaurareg – shared ownership of Warral and Ului.

That agreement took a long time to be implemented. In 2020, a formal shared ownership claim was authorised and filed with the Court. Five Badulgal men objected to the shared ownership claim. In this summary and in the Court’s reasons they are called the Badulgal respondents. The Badulgal respondents said Warral and Ului belonged under traditional law and custom only to Badulgal. The State of Queensland accepted their objection was arguable and should be heard by the Court. In July 2020, the Court agreed to hear the objection of the Badulgal respondents, and to have a full trial about who holds native title in Warral and Ului. The parties to this trial are the native title applicant representing the three groups in the shared ownership claim, the Badulgal respondents, the State and the Commonwealth.

In September 2020 the parties and their lawyers formally applied for the Court to decide some questions about who holds native title in Warral and Ului. The Court’s decision would take the form of answers to those questions. Everyone agreed that native title exists in Warral and Ului. So the main question for the trial was: Which group or groups holds that native title?

Hearings were conducted by the Court to listen to evidence that the Court would consider in deciding what the answers to those questions were.

The Court listened to evidence from witnesses chosen by the applicant, and by the Badulgal respondents. There were 17 witnesses, from the Badulgal, Mualgal and Kaurareg groups. The parties and their lawyers chose which people would give evidence. These people talked to the Court about a lot of topics – their family histories; visiting Warral and Ului and what they did there; the use of the islands for sarup; the use of Sunswit; how people gathered resources from the sea around the islands and from the land on the islands; the location of fresh water on the islands; who has made gardens and/or built structures on the islands; burning practices; the Waubin and Pithalai stories and the story of Waii and Sobai; the role of adhi, especially for Kaurareg People; burial sites; historical accounts of clashes and warfare between various groups in the Western Islands; the forced removal of Kaurareg People to Mua; gud pasin and sharing; “chuktalk”; the work done in the Western Torres Strait 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; the Coming of the Light and what it meant for the practice of culture; and the 2015 mediation.

The Court also listened to evidence from four anthropologists. The role of the anthropologists was 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. The four anthropologists in this trial are all very experienced and they all attempted to assist the Court. The Court does not have to agree with an anthropologist’s views. Their views do not carry any greater weight than the evidence of the claim group members, just because they are anthropologists.

The parties also gave the Court a lot of documents to read – earlier anthropological connection reports about these islands and other places connected to Badulgal, Mualgal and Kaurareg People, historical European documents about the Western Torres Strait, maps, photographs, and recordings. Two pieces of documentary evidence which the Court has decided were important in its decision were the transcripts of certain witness evidence from the Akiba sea claim case, and a map made by Aidan Laza, a Badulaig elder, showing the areas he understood to be Badulgal country.

Because this was a trial, the Court had to decide if the applicant had proven its case of shared ownership of Warral and Ului by Badulgal, Mualgal and Kaurareg People. If the applicant did not prove shared ownership, the Court still had to decide what is the correct answer to the main question about who has native title in Warral and Ului. All parties accept that the islands belong to one or more of these groups, and not to anyone else.

Australian courts work in an adversarial system of justice. The Court is not conducting an inquiry. It is not like a Royal Commission. The Court has to decide a dispute between parties who put their arguments before the Court. Therefore, the Court relies on evidence the parties present to it. The parties choose what evidence to give the Court, including what witnesses to call, and what documents to provide. They choose questions to ask the witnesses, and what not to ask. They choose what to emphasise, and what not to emphasise.

Many native title cases involve the Court making findings about what happened a long time ago. Parties have to persuade the Court about the activities of claimant ancestors and what the situation was before colonisation. Before colonisation – who did these islands belong to, and under what system of traditional law and custom? That is the issue. The Court’s task is like trying to put a puzzle together, with a lot of missing pieces. The Court must look at all the evidence, and think about the arguments made, and make a decision on the questions the Court has been asked. The question of which party must persuade the Court – which party has the burden of proof – can become quite important, especially when there is not very much direct evidence about pre-colonisation times. In this trial, the applicant had the burden of proof to persuade the Court that all three groups shared ownership of Warral and Ului. The focus of this trial is no wider than the land on Warral and Ului. It is not a case about native title in the seas around the islands, or in the reefs and banks below the high water mark. The Court is only making a decision about the islands themselves. Some of the Court’s findings may affect other claims that are not resolved yet, but here the Court makes no decision about those other claims.

The Court agrees native title exists in Warral and in Ului. It has answered the main question by deciding:

The Badulgal and Mualgal hold joint native title in Warral and Ului, in the same way they hold joint native title over neighbouring islands like Dadalai, Zurath and Tuin and the other islands near them.

The Court has decided that the applicant has not proven that three groups, including the Kaurareg People, share native title in the two islands. The Court also decided that the Kaurareg People do not have native title in Warral and Ului at all. It has found they have used the islands from times after colonisation, especially since their forced removal to Mua in the 1920s, but they can do so because of gud pasin and their close relationship with Mualgal, not because the two islands have always belonged to them.

The Court found the evidence supporting Badulgal native title in both islands was very strong. The evidence supporting Mualgal native title in the islands was not as strong, but it was enough, especially because these two groups are recognised as sharing native title in neighbouring uninhabited islands like Dadalai, Zurath and Tuin. The Court also took account of the State of Queensland’s position that the evidence showed the islands traditionally belong to Badulgal and Mualgal.

In its full reasons, the Court acknowledges that everyone involved in the trial worked cooperatively and positively to make each stage of the trial run as smoothly and efficiently as it could. The Court thanks the communities of each of Waiben, Mua and Badu for their warm hospitality during the conduct of the hearing, especially since the issues in this trial are deeply personal and people feel very strongly about them. People behaved in a respectful and tolerant manner, as their customary traditions, and their faith, teach them. The Court is also grateful to Mr Cyril Repu, from Mabuiag, who acted as an interpreter for the lay witnesses where required.

The Court understands that its decision will be welcomed by some, and not by others. It encourages everyone to read its reasons carefully. The Court will list a case management hearing in about a month’s time for the parties to come and discuss next steps towards finalising a native title determination over Warral and Ului. The Court is ready and willing to continue to assist the parties however it can to finalise this claim.

MORTIMER J

27 FEBRUARY 2023