FEDERAL COURT OF AUSTRALIA
Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The separate questions be answered as follows:
a. But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?
Answer: No
b. In relation to that part of the claim area where the answer to (a) above is in the affirmative:
i. Who are the persons, or each group of persons, holding the common or group rights comprising the native title?
ii. What is the nature and extent of the native title rights and interests?
Answer: Not applicable.
2. The parties are to confer as to appropriate orders and advise the Court within 28 days as to whether they have reached agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
RANGIAH J:
1 The applicant has applied under ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) (the NTA) for a determination of native title over approximately 25,506 km2 of land and waters in Central Queensland.
2 The area covered by the claim is to the west and south west of Rockhampton. It encompasses the towns of Banana, Baralaba, Biloela, Blackwater, Mount Morgan, Thangool and Woorabinda. The Dawson River, flowing generally south to north, bisects the claim area.
3 On 5 November 2019, I ordered that the following questions be determined separately:
a. But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?
b. In relation to that part of the claim area where the answer to (a) above is in the affirmative:
i. Who are the persons, or each group of persons, holding the common or group rights comprising the native title?
ii. What is the nature and extent of the native title rights and interests?
4 The hearing of the separate questions took place over 12 days, including in Biloela, Blackwater and the Blackdown Tablelands. While there are 74 respondents, only the State of Queensland (the State) and the applicant participated in the hearing. The State contends that native title does not exist in relation to any part of the claim area.
5 This judgment answers the separate questions. For the reasons that follow, the first question will be answered, “No”; and the second, “Not applicable”.
6 The applicants’ Originating Application was filed on 11 January 2019 and its current version, the Fourth Amended Originating Application, was filed on 30 October 2019.
7 The application is made on behalf of “The Gaangalu Nation People” (the Gaangalu or Gangaalu people). The native title claim group is described as the biological descendants of 29 named ancestors.
8 Although the applicant has spelt the name of the claim group as “Gaangalu” in the Originating Application, a variety of spellings appear in material before the Court, including Gangulu, Ganulu, Kanoloo, Kong-oo-loo, Kong-ool-lo, Kanalloo, Kongulu, Khangalu, Kangalu, Kangalu, Kangooloo, Khangalu, Kongulu, Kongalu, Konguli. The differences in spelling arise partly from the first syllable beginning with a sound apparently pronounced somewhere between “G” and “K” in the English language. While the expert anthropologist engaged by the applicant, Dr Kim de Rijke, has preferred the spelling “Gangulu”, I will adopt the spelling used by the applicant.
9 The area of land and waters the subject of the application (the claim area) is broadly defined by the Great Dividing Range in the east, the lower Dawson River in the centre, the Comet River in the west, and the Mackenzie River in the north. The southern boundary follows a number of creeks, from Lonesome Creek in the southeast to Humboldt Creek in the southwest.
10 The following map produced by the National Native Title Tribunal depicts the claim area and some of the significant towns and geographical features:
11 The application claims exclusive and non-exclusive native title rights and interests in some areas, and non-exclusive rights and interests in the remainder.
12 The exclusive rights claimed in relation to land areas are possession, occupation, use and enjoyment to the exclusion of all others.
13 In the remaining areas, the non-exclusive rights and interests claimed are to:
(a) access, be present on, move about on and travel over the area;
(b) occupy, use and camp on the area, but not to reside permanently, and for that purpose to construct non-permanent structures;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
(d) take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(h) teach on the area the physical and spiritual attributes of the area;
(i) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(j) be buried and bury native title holders within the area.
14 These rights are asserted by the applicant to be held communally or as a group by the claim group.
15 The claim area is surrounded by areas covered by a number of native title claims or determinations. It is bordered:
to the south-east by the Wakka Wakka People #4 Native Title Application (QUD91/2012) and the Port Curtis Coral Coast Native Title Determination: see Blackman on behalf of the Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People v State of Queensland (No 3) [2017] FCA 1637;
to the south-west by the Wadja People Native Title Application (QUD422/2012);
to the west by the Western Kangoulu People Application (QUD229/2013);
to the north by the Barada Kabalbara Yetimarala People Native Title Application (QUD383/2013);
to the east by the Darrambul People Native Title Determination: see Hatfield on behalf of Darrambul People v State of Queensland (No 3) [2016] FCA 723 (Collier J).
16 An application for a determination of native title over an area to the south-west of the claim area was dismissed in Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229 (Jagot J) (Wyman). An application over an area to the north-west was dismissed in Malone v State of Queensland (Clermont-Belyando Area Native Title Claim) (No 5) (2021) 397 ALR 397; [2021] FCA 1639 (Reeves J) (Malone (No 5)).
17 Until 2014, the claim area was overlapped by Wadja People Native Title Application and the Kanoulu People #2 Native Title Application (QUD421/2012). In 2017, the Wulli Wulli People #3 (QUD619/2017) and the Warrabal People (QUD580/2017) applications were filed with an overlapping the claim area, but the former has since been amended to remove the overlap and the latter has been discontinued. There are no longer any overlapping claims. None of the neighbouring groups have appeared in opposition to the Gaangalu claim.
18 The current pleadings are the applicant’s Amended Statement of Claim and the State’s Defence. The Amended Statement of Claim is somewhat ambiguous and unclear, and the parties have made little reference to it.
19 The pleadings have largely been overtaken by the parties’ document entitled, Amended Statement of Agreed Facts and Substantive Issues in Dispute. In that document, the applicant and the State agree, relevantly for present purposes, upon the following facts and matters:
4. British sovereignty was asserted in respect of the claim area on or about 26 January 1788.
5. The first significant European incursions and European settlement in the claim area occurred between about 1845 and the mid-1850s.
6. At sovereignty and effective sovereignty, Aboriginal persons were present in, used and occupied the claim area.
7. The Aboriginal people present in, using and occupying the claim area at sovereignty and effective sovereignty were uninfluenced by laws, customs, traditions, practices or patterns of behaviour of non-Aboriginal origin.
8. The Aboriginal people present in, using and occupying the claim area at effective sovereignty included descendants of the Aboriginal people present in, using and occupying the claim area at sovereignty.
9. At sovereignty and effective sovereignty, the presence in and use and occupation of the claim area by Aboriginal people was, (apart from the case of any casual entrant, trespasser or visitor), not coincidental only, truly random or merely opportunistic.
10. At sovereignty and effective sovereignty, Aboriginal people in the claim area (apart from the case of any casual entrant, trespasser or visitor) used and occupied the area in the exercise of a right or interests held by them under their traditional laws and customs.
11. At sovereignty and effective sovereignty:
(a) the Aboriginal people present in, using and occupying the claim area included persons who were part of a regional society or societies;
(b) the traditional laws and customs acknowledged and observed by the Aboriginal people referred to in sub-paragraph (a) above, conferred rights and interests in relation to the land and waters of the claim area, including land holding rights; and
(c) some of the traditional laws and customs referred to in sub-paragraph (b) above were normative.
12. At sovereignty and effective sovereignty any relevant regional society in the claim area acknowledged and observed laws and customs concerning the following, or with the following attributes (traditional laws and customs):
(a) a classificatory kinship system;
(b) a form of social organisation encompassing two named moieties and four named sections (though it is not agreed that this indicates the existence of any particular society);
(c) inalienability of rights in land and waters;
(d) an understanding of mythology, including spiritual forces inhering in land and waters;
(e) an understanding of totemism, including an association between totemism and kinship as well as personal totems;
(f) an understanding of spirits in the landscape including appropriate ways of managing spiritual presence;
(g) male and female rituals and initiation ceremonies (though the nature and content of any such laws and customs is not agreed);
(h) various funerary practices;
(i) a system of authority emphasising the role of senior people (though whether that indicates anything as to existence of any particular society is not agreed);
(j) responsibilities to manage and protect land and waters;
(k) the presence of landholding units which were small local groups (capable of description as hordes or clans) who recruited members mainly by patrilineal descent, (although whether such groups were identifiable, and if so, the identity of those groups, is not agreed);
(l) local groups which formed clusters or aggregations at a higher level of identification;
(m) customary use of natural resources; and
(n) recognition of gender specific and other significant sites (though whether access protocols applied, or their nature, is not agreed).
20 One of the uncertain aspects of the applicant’s Amended Statement of Claim concerns the allegation that:
The Gaangalu ancestors were also part of a broader regional society which encompassed a number of constituent groups comprised substantially of one or several extended family groupings with affiliations and particular rights to particular areas within the region which included, in addition to Gaangalu, included the Gangalu (Kangulu), Wadja and Garingbal peoples all of whom shared a regional identity label of “Gangalu” (variously spelled) and acknowledged and observed substantially the same traditional normative system.
21 It is unclear from the pleading whether the claimed native title rights and interests are asserted to be possessed under the traditional laws and customs of the Gaangalu people, or of the regional society, or both. To add to the uncertainty, the pleading asserts that the regional society is known under label “Gaangalu”. The parties’ Agreed Facts and Issues in Dispute and the applicant’s written submissions do not remove those uncertainties.
22 However, in oral submissions, the applicant’s counsel clarified that:
(1) The applicant alleges the existence of a pre-sovereignty regional society of which Gaangalu people was a constituent part.
(2) The applicant does not seek to demonstrate that there was and remains a society consisting of Gaangalu people.
(3) The applicants’ case, in substance, is that:
(a) the Gaangalu people possess their claimed rights and interests under the traditional laws and customs of the regional society;
(b) the Gaangalu people have a connection with the land and waters in the claim area by the traditional laws and customs of the regional society;
(c) the Gaangalu People are a “landholding group” which is a subgroup of the regional society.
23 Although the Amended Statement of Claim asserts that the pre-sovereignty regional society, “included the Gangalu (Kangulu), Wadja and Garingbal”, it is not apparent that any people other than the named groups are asserted to be part of the regional society. As I will discuss, this aspect of the applicant’s case is substantially based on the expert anthropological reports of Dr de Rijke, who identifies the pre-sovereignty regional society as consisting of the Gaangalu, Wadja and Garingbal. I will refer to that depiction of the relevant society as the “Regional Society”.
24 In the Amended Statement of Agreed Facts and Substantive Issues in Dispute, the State identifies the following matters which remain in dispute:
47. The composition, membership requirements and extent of any relevant regional society.
48. What groups, whether identifying as Gaangalu or otherwise, were constituent groups of the regional society.
49. Whether, at effective sovereignty, traditional laws and customs of the following nature were acknowledged and observed by members of any relevant regional society:
(a) laws and customs concerning inheritance of identity and rights in land and water of the claim group in relation to the claim area or parts thereof, and of any relevant regional society in respect of the region its members inhabited, including identification of how other agreed or asserted categories of laws and customs provide for or intersect with matters of identity and rights in land and waters; and
(b) intermarriage and trade across the across the area of the regional society and beyond;
(c) an embodied relationship between people and their land and waters; and
(d) an understanding of sorcery and healing.
50. The nature and content of the normative body of laws and customs of any relevant regional society, pursuant to which rights and interests were held at the time of effective sovereignty.
51. The nature and content of the rights and interests held by members of any relevant regional society at the time of effective sovereignty pursuant to the traditional laws and customs.
52. Whether, at effective sovereignty, the claim group and their ancestors or any relevant regional society were “a body of persons united in and by its acknowledgment and observance of a body of laws and custom” within the regional society (the pre-sovereignty society).
53. Whether, at effective sovereignty:
(a) by the traditional laws and customs observed by them at the time of effective sovereignty, the ancestors of the claim group had a connection with part or all of the land and waters of the claim area, and if so what parts; and
(b) the ancestors of the claim group were present in, occupied, used and enjoyed, part or parts of the land and waters of the claim area, and if so what parts.
54. Whether the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time.
55. Whether the traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and whether such acknowledgement and observance has continued substantially uninterrupted since effective sovereignty.
56. Whether since effective sovereignty the pre-sovereignty society and their successors have maintained a connection with the claim area and have transmitted rights and interests in relation to the claim area by and in accordance with the traditional laws and customs.
57. Whether the claim group (as a whole), acknowledge and observe the traditional laws and customs.
58. The nature and content of the traditional laws and customs observed by members of the claim group.
59. Whether by the traditional laws and customs that are still observed by them, the claim group has a connection with the claim area.
60. Whether by the traditional laws and customs that are still observed by them, the claim group has rights and interests in the claim area and the nature and extent of the extant rights and interests.
61. As identified in paragraphs 6, 9, 10 and 11 herein (and in the context of the agreements in those referenced paragraphs), what part or parts of the claim area persons were present in, what part or parts of the claim area were used and occupied, that the presence in, use and occupation was substantially uninterrupted, or that it continues to the present day, is in issue.
25 It may be seen that the issues that remain in dispute include:
which parts of the claim area were occupied by Gaangalu people at sovereignty;
the existence of the Regional Society at sovereignty and its continued existence;
the nature and content of the Regional Society’s traditional laws and customs;
whether the claim group’s observance of the traditional laws and customs has continued substantially uninterrupted; and
whether by those traditional laws and customs, they continue to have a connection to the claim area.
26 It is necessary to say something about the applicant’s approach to its written submissions. Their written submissions consist largely of chunks of evidence extricated verbatim from the anthropological reports, statements or transcript, followed by the statement of one or more general propositions. To give one example, the section of their submissions dealing with continuity of traditional understanding of mythology starts with extensive extracts from the transcript and statements, and then segues to broad statements to the effect that those extracts demonstrate, “clear continuity in relation to the knowledge and content of the stories”. However, there is no analysis of the evidence concerning traditional mythology and how and why the contemporary evidence demonstrates continuity of that aspect of law and custom. It has been necessary for me to, in effect, construct the argument that the applicant may be putting and then address that putative argument. That kind of issue was repeated throughout the applicant’s lengthy written submissions. One important issue, the continuity of a traditional law and custom described as, “the presence of landholding units which were small local groups (capable of description as hordes or clans) who recruited members mainly by patrilineal descent”, was not addressed at all. The applicant’s approach has made the task of understanding and addressing some parts of the applicant’s case problematic.
Overview of the Gaangalu witnesses
27 It has been recognised that the evidence provided by Aboriginal people is of the utmost importance in native title proceedings: Sampi v Western Australia [2005] FCA 777 (Sampi) at [48] (French J).
28 The evidence-in-chief of lay witnesses was, in accordance with the Court’s programming orders, provided in the form of statements, affidavits or outlines of evidence. The applicant called the following 20 witnesses, each of whom was cross-examined:
(a) Lynette Gail Blucher;
(b) Rosemary Hoffman;
(c) Dale Martin Toby;
(d) James Robert Waterton;
(e) Deborah Maree Tull;
(f) William Phillip Toby;
(g) Margaret Kemp;
(h) Patricia Leisha;
(i) Lynette Ann Anderson;
(j) Paul Hegarty;
(k) Priscilla Iles;
(l) Steven Raymond Kemp;
(m) Cedric James White;
(n) Desmond Allan Hamilton;
(o) Rodney John Jarro;
(p) Colin Toby;
(q) Samantha Neilsen;
(r) Lillian May Harrison;
(s) Elizabeth May Jacobs;
(t) Peter Mickelo.
29 The applicant also tendered the written statements or affidavits of the following persons who had passed away prior to the commencement of the hearing:
(a) Robert Toby;
(b) Mona Barry;
(c) Valerie Grace Hayes.
30 The evidence presented by the Gaangalu witnesses is of relevance to a number of the disputed issues, including continuity of observance of traditional laws and customs.
31 Each of the lay witnesses identified themselves as Gaangalu by reason of their biological descent from one or more Gaangalu ancestors and that self-identification was not challenged by the State.
32 The Gaangalu witnesses were cross-examined over a period totalling 7 days, between 12 April 2021 and 27 April 2021 at one of three locations within the claim area, Biloela, Blackwater or the Blackdown Tablelands.
33 The evidence of the Gaangalu witnesses seemed to me to be given candidly and to reflect their genuinely held beliefs. However, their evidence cannot simply be accepted uncritically. The extent of their knowledge of traditional laws and customs was, in some respects, limited, and often given at a level of generality and without significant detail. Their evidence on a number of issues was broadly consistent, but there were also some inconsistencies and differing levels of knowledge or understanding between the witnesses. For example, there are widely varying understandings of which places are special or sacred and why. In a number of instances, spiritual beliefs and experiences of witnesses appear idiosyncratic and are not apparently shared by other witnesses. In circumstances where the Gaangalu were removed from their land and subjected to policies of forced assimilation designed to remove all traces of their culture, substantial depletion of their knowledge of traditional laws and customs is understandable and unsurprising.
34 I will discuss the evidence of the Gaangalu witnesses in detail later in these reasons.
Overview of the expert evidence
35 The primacy of the evidence of Aboriginal witnesses does not mean that expert anthropological evidence is unimportant to the determination of issues in native title claims: see Wyman at [474].
36 In Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2003) 207 ALR 539; [2004] FCA 472 at [89], Mansfield J observed that anthropological evidence may, amongst other things, provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices; and make use of historical literature and anthropological material to compare traditional laws and traditional customs and interpret the similarities or differences.
37 In Jango v Northern Territory of Australia (2006) 152 FCR 150; [2006] FCA 318 (Jango) at [462], Sackville J noted that in the ordinary course, Aboriginal claimants adduce anthropological evidence to establish the link between current laws and customs and the laws and customs acknowledged and observed by the claimants’ ancestors at the time of sovereignty.
38 The Court is not, however, bound by the opinions of expert anthropologists even where that evidence is uncontradicted: Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176 at [124] and [218]. That is particularly so where the evidence is upon an ultimate issue: Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [355] (Callinan J).
39 The applicant adduced evidence from an anthropologist, Dr Kim de Rijke, and a historian, Dr Hilda Maclean. The State called an anthropologist, Dr Anna Kenny. Their expertise is not in dispute.
40 Dr de Rijke has been engaged by the applicant since 2011 to investigate the Gaangalu claim.
41 In September 2018, Dr de Rijke prepared a report entitled, Gaangulu Nation People Native Title Determination Application (QUD400/2012), Expert Anthropological Report (first report). Dr de Rijke relied upon published works and documents specific to the region and of more general relevance to Aboriginal life and culture, interviews with 68 Aboriginal people of region and personal observations, as well as his own specialised knowledge based on training study and experience. The 68 Aboriginal people included 19 of the 23 Gaangalu witnesses who gave evidence.
42 Following the hearing of the lay evidence, Dr de Rijke produced a further report entitled, Gaangulu Nation People QUD33/19: Supplementary Expert Report (supplementary report) addressing the question of whether he continued to adhere to the opinions expressed in his first report. Dr de Rijke’s two reports were admitted into evidence.
43 Dr de Rijke and Dr Kenny gave concurrent oral evidence in Brisbane on 28 and 29 June and 14 July 2021. Dr de Rijke was called by the applicant and Dr Kenny was called by the State.
44 Dr Maclean was engaged by the applicant in 2013 to undertake a genealogical investigation for use in the claim.
45 Dr Maclean prepared an initial report entitled, Gaangalu Nation People Native Title Determination Application (QUD 400/2012): Review of the Genealogical Data – Gaangalu Nation People Apical Ancestors. She prepared a second report entitled, Review of the genealogical data concerning Myra Freeman, Sarah Dodd and Mary Ann Crook.
46 Dr Maclean’s two reports were admitted into evidence. She was not required for cross-examination.
47 Dr Kenny was engaged by the State in 2017 in respect of the Gaangalu application, as well as neighbouring claims made on behalf of the Western Kangoulu People and Wadja People Dr Kenny’s brief was expanded in 2018 to include Part A of the Wulli Wulli #3 People claim.
48 This group of proceedings has become known as the “GNP cluster”. I case-managed these proceedings together as they involved competing claims to apical ancestors and land.
49 Following orders made by Robertson J on 29 October 2018, materials filed or provided to the State in the Gaangalu, Wadja, Western Kangalou and Wulli Wulli #3 proceedings were permitted to be used for the purposes of each other proceeding. Dr Kenny produced a report dated 9 November 2018, entitled, Anthropology Overview Report: Assessment of Expert and Lay Evidence filed for the GNP Cluster Native Title Claims (QUD 400/2012, QUD 229/2013, QUD 422/2012, QUD 619/2017).
50 The report states that it, “only addresses the main issues that emerge from the expert reports and lay evidence relating to the GNP cluster applications and is not intended as a comprehensive anthropological report on the GNP cluster”. In her report, Dr Kenny indicates that she reviewed the relevant ethnography, the lay evidence and the expert evidence filed in the applications. Dr Kenny’s report was admitted into evidence and, as I have said, she gave concurrent oral evidence with Dr de Rijke.
Conferences of experts and joint reports
51 Following the exchange of expert reports, conferences of the expert anthropologists in this claim and in the Western Kangalou, Wadja and Wulli Wulli #3 proceedings were convened. The Court’s order of 5 November 2018 required that:
…the experts in like disciplines shall produce for the use of the parties and the Court a document(s) identifying with respect to matters and issues within their expertise:
(a) the matters and issues about which their opinions are in agreement;
(b) the matters and issues about which their opinions differ; and
(c) where their opinions differ, the reasons for their difference.
52 The relevant expert witnesses produced a joint report entitled Report of Conference of Experts held 20 February 2019 in Brisbane concerning this proceeding. There was substantial agreement between Dr de Rijke and Dr Kenny, except that Dr Kenny was unable to form a concluded view in relation to some claimed Gaangalu ancestors. In particular, Dr de Rijke and Dr Kenny agreed as follows:
a) There were Aboriginal people in occupation of the Gaangulu claim area at sovereignty and there were common laws and customs acknowledged and observed across the region.
b) Those people were part of a larger regional society extending beyond the claim area.
c) The traditional laws and customs of the identified society included those specified in the report.
d) At effective sovereignty: (i) land holding units were clans, whose members held proprietary rights and interests as a clan group at a local level, (i.e. in a local clan estate); (ii) other, secondary rights were held by clan members in a broader area; (iii) the local land owning clans formed clusters or aggregations at another level of identification which may have been a regional and/or linguistic identity and was not a land holding unit.
e) The members of the Gaangalu claim group are part of a broader regional society.
f) A number of the traditional laws and customs are no longer observed by the Gaangalu, but others are still observed in adapted form.
g) The Gaangalu claim group continues to hold rights and interests under traditional laws and customs as a group.
h) The Gaangalu no longer hold land on a clan estate level. Today, there is a broader cognatically constituted group that holds rights in land. Adaptation has occurred due to population loss (removals, massacres and disease), managing the impact of non-Aboriginal paternity, internment at reserves and loss of knowledge and refocusing from the very local estate to a broader concept of country usually under a language name. Traditional succession processes ensured that there was no “orphaned” country.
i) Members of the same society continue to observe traditional laws and customs. These laws and customs have adapted to the changing circumstances in which the ancestors of the claimants found themselves but continue to be rooted in tradition.
j) The Gaangalu claim group has a connection with the claim area by their acknowledgment and observance of traditional laws and customs throughout the claim area. This connection includes cognatically traced Gaangalu ancestry, as well as forms of physical and spiritual connection.
53 Dr de Rijke and Dr Kenny produced another report entitled Report of Conference of Experts held 8 March 2019 in Brisbane. The report explained the reasons for their agreement that all but three of the ancestors then named in the application (Mary Ann Crook was not included at that time) had held rights and interests in the claim area. In relation to the three (Rose Ann Tyson, Biddy (wife of Jumbo) and Polly Doctor), Dr de Rijke considered their inclusion to be appropriate, whereas Dr Kenny explained she was not in a position to adopt a certain position because she had not conducted primary research.
54 The conference of Drs de Rijke and Kenny on 8 March 2019 also included consideration of whether the Gaangalu ancestors held rights and interests in immediately neighbouring claim areas and, if so, the nature of those rights and interests. Drs de Rijke and Kenny concluded that there was no evidence that would allow them to form an opinion about the rights and interest of any of the apical ancestors outside the claim area.
The evidence of Gaangalu witnesses
55 The evidence given by the Gaangalu witnesses is largely directed to continuity of the traditional laws and customs accepted by the parties to have existed in the claim area at sovereignty and connection with that area by those laws and customs.
56 In the summary of evidence that follows, it is convenient to describe the evidence by reference to aspects of traditional laws and customs agreed by the parties, while recognising that the evidence may in fact be relevant to several laws and customs.
57 Ms Lynette Blucher is 65 years old and was born at, and resides in, Mount Morgan within the claim area.
A classificatory kinship system, a system of authority, an understanding of totemism and funerary practices
58 Ms Blucher is a Gaangalu person through her apical ancestor William Toby I, who was her great grandfather, and her father, Gordon Toby, both Gaangalu men. Her father’s father, William Toby II, was also a Gaangalu man. Ms Blucher’s mother, Heather Elizabeth Toby, had Wadja, Gaangalu and Gurigbal connections, but she claimed her country was near the New South Wales border. Heather Toby’s father, Harold Tyson, was Gaangalu, Wadja and Guringbul, and his father, Peter Tyson, had Gaangalu ancestors. Ms Blucher’s parents had 12 children, 11 of whom were born at Mount Morgan, and Ms Blucher has four children of her own, all born at Mount Morgan.
59 Ms Blucher considers that everyone who has a Gaangalu ancestor is Gaangalu, regardless of whether it comes from the mother or father. A non-Gaangalu person does not become Gaangalu by marriage, but their children do. A Gaangalu person may choose between the different groups in their family history or choose more than one group. Ms Blucher had bloodlines connecting her to different groups but has always claimed she was Gaangalu, mostly because of her father’s influence, but also because she does not know the country and people of the other groups. She learnt about her mother’s background but due to her father’s influence and her residence at Mount Morgan for almost her entire life, she knows more about that area and Gaangalu people than she does about her mother’s side. Although she most strongly identifies with Gaangalu country and is mainly a Gaangalu person, Ms Blucher may mention her other connections when meeting new people. This way of introducing herself, and finding out who another person is, is something she learned and noticed other Gaangalu people doing.
60 Ms Blucher learnt about her family’s history and connections from older people in her family mostly from her mother and her father but also from other older Gaangalu people. She now passes on this information to her children, grandchildren and other Gaangalu people.
61 Gaangalu people get their rights in country at birth, through their ancestors. Ms Blucher got her rights as a Gaangalu person from her father and her great grandfather, and her children and grandchildren get their rights from her. This includes Ms Blucher’s right to be included in and to make decisions about country for the east side of Gaangalu. She acquired this right from her father and this right will be handed down to her children who will hand it down to their children. Ms Blucher’s adult children can be involved in decisions about country, as they have learnt Gaangalu ways from her. Ms Blucher intends to teach her grandchildren about country and customs so they can make decisions about country when they are old enough.
62 Ms Blucher was brought up understanding that her family should always find or make room for someone if they need a place to stay and that their home, food and other things are to be shared with both family and others. She claims that most Gaangalu people she knows have always done the same. Ms Blucher gave examples of having both family and non-family members staying at her house or staying for meals, ensuring that there was enough to go around. She also recalls her father taking her sibling and her to different family members when traveling to visit family, and a “big mob” of family and friends going camping and fishing together.
63 Ms Blucher explained other kinship practices, including families, marriage, elders, language and other laws and customs.
(1) It is common for Gaangalu people to look after nephews, nieces, grandchildren, distant cousins and others for long periods of time, and treat them as their own. This includes disciplining children and looking after elders. Responsibilities are shared across more than just the immediate family. Ms Blucher calls her nieces and nephews her kids, and her cousins her brothers and sisters. The people Ms Blucher and her siblings knew as their aunties and uncles, who may not have been family, would treat them as their own children.
(2) A Gaangalu person should not marry another Gaangalu person with the same yuri. A yuri is a totem, which signifies a meat and a plant. The descendants of William Toby I have the carpet snake as their meat and the cabbage palm tree as their plant. Accordingly, William Toby I’s descendants cannot marry another carpet snake or cabbage palm tree. To avoid this, older Gaangalu people get to know possible partners and discover who they are connected to and how. Gaangalu people also do not eat their yuri because it is their family.
(3) There is a system of authority emphasising the role of senior people. Senior people have authority and showing respect to elders is very important. Elders are consulted first when making decisions, such as bringing native title claims, and Gaangalu people must take into account what the elders say. When the older people meet, young Gaangalu people are not allowed to stay. Older people speak for the mob and the family.
(4) The language has been largely lost. Ms Blucher’s father only learnt a few words and Ms Blucher cannot speak in Gaangalu language or understand it.
(5) Other relevant Gaangalu laws and customs include the existence of spirit ancestors, using sandalwood smoke for ceremonial cleaning and protection, and various funerary practices. Examples of funerary practices include Ms Blucher’s father being buried, as he wanted, on country at Mount Morgan, Gaangalu peoples’ ashes being spread on property on the Don River and the requirement that Gaangalu people attend all funerals of a Gaangalu person, particularly to represent their family. Smoking ceremonies are performed at burials to cleanse the spirit and allow the deceased’s spirit to go to the spirit world.
Inalienability of rights in land and waters
64 Ms Blucher gave evidence that Gaangalu people cannot sell or give away Gaangalu country or stop the country from being Gaangalu country for future generations.
An understanding of mythology and of spirits in the landscape, and the recognition of gender specific sites
65 Ms Blucher gave evidence that these are special places on country, plants and spirit ancestors and children. There are special places, including Mount Murchison which is sacred ground, Wandoo Mountain, Lake Victoria, Cattle Creek, Mount Morgan, Lake Charlotte, Axe Factory, Newman Park, Mount Scoria, and Banana and Banana Creek. For example, Mount Murchison was used by Gaangalu people for gatherings and as a look out place. It looks out over Lake Victoria in Callide Valley, where a massacre of Gaangalu people occurred. There is a men’s site at Wandoo, which is a very special place where men’s business happens. Both Mount Morgan and Lake Charlotte have a bora ring, where gatherings and initiation ceremonies took place. They are men’s business sites and women do not go to those places. On the other hand, Mount Scoria is a special woman’s place.
66 Ms Blucher was taught that the cabbage palm tree was the “Gaangalu Palm Tree”. Ms Blucher sees the Palm Trees as her ancestors. They look after her and protect artefacts.
67 There are spirit ancestors and stories told to Gaangalu People. Examples include the Djandjaarris story told to children to prevent them from wandering off, the story of the Tall Man and the Yuinji ghost or scary man that tries to coax you away to follow him. Smoking ceremonies are used at burials to allow the deceased to go to the spirit world, or for protection to remove evil spirits hanging around.
Responsibilities to manage and protect land and waters and an embodied relationship between people and their land and waters
68 Ms Blucher’s father told her where Gaangalu country is, that it is their country, and that “Gaangalu country belongs to all Gaangalu people and it is their responsibility to look after it”. Uncle Bill taught Ms Blucher that the boundaries of their country were the Dawson River, Castle Creek, the Callide Range, the Mount Morgan Range, Sandy Creek, and then Gogango Creek into the Fitzroy. Uncle Bill and Ms Blucher’s father were clear to her and others that Mount Morgan was their country. Different Gaangalu people and families know about and must look after different parts of Gaangalu country, for example, on the east or west side of the claim area. People are still Gaangalu people even if they only refer to the other side of the Dawson River as their country. There was a lot of contact and connection between Gaangalu people in different areas.
69 Gaangalu people look after their country by taking responsibility for how they use it or let it be used. Accordingly, they cannot take too much or disturb the country, or let others do these things. Ms Blucher was brought up to understand that they could take what they needed from country but not more than they needed. Gaangalu people should acknowledge when they are going into other country, including across the Dawson River into the western part of Gaangalu country. Permission is required to cut down a tree when on other country to ensure the right Gaangalu people were looking after their country. Ms Blucher obtained her rights in country from, and can be involved in decision making for the east side of the claim area through, her descent from William Toby I.
70 To look after the country, Gaangalu people live on the country, visit places often, and listen to and take notice of what other people are doing and planning. Ms Blucher claims that the best way to protect their country is to leave it alone most of the time, without moving anything. She claims that a lot of recent activity, especially mining, has affected many areas. Items of importance have had to be moved to avoid them being lost or destroyed. There are five shipping containers on Gaangalu country which store artefacts as a temporary keeping place. They are located close to a cabbage palm tree to protect those artefacts until they are put back on country. However, Ms Blucher claims that these artefacts should be where they were found and it feels like they are taking life out of the land when these artefacts are removed from country. As the artefacts are not on the country where they were found, the Gaangalu people want to display them to teach people about Gaangalu culture and country, particularly so the younger generations can learn about how their ancestors used to live. It is also open to tourists so they can learn about the Gaangalu people, their culture and the land they are visiting. Ms Blucher describes this as part of their responsibility to look after and protect their land. She states that the Gaangalu people have looked after country this way for as long as she can remember. They have to look after the country so they can pass it down to their kids. Her father taught about and showed her siblings and her around country for that reason, and Ms Blucher does the same with her children.
71 Gaangalu people have knowledge of special places on country and living on and accessing country for fishing, camping, hunting and gathering. Uncle Bill and Ms Blucher’s father taught her that Mundagarra is important to Gaangalu people because he is the creator. He is like the rainbow serpent or carpet snake. He starts at the Dee River and comes up from the base of the river at Eulogie Crossing and out of the river at Piebald Mountain. Mundagarra created all the little creeks and streams that go into the Dawson River, and the Dawson River itself, up to Nathan Gorge. Ms Blucher has told her children about the Mundagarra and his places on Gaangalu country. Moreover, when old people pass away, they return to country to protect it and look after other Gaangalu people. Ms Blucher believes her father was at Tiamby when she lived there. She believes that old people look out for her when she is on country.
Customary use of natural resources and an understanding of sorcery and traditional healing
72 Ms Blucher has lived on and been doing traditional things on country for her entire life. Her father took her and her siblings camping on country and taught them how to hunt, fish and find bush tucker. For example, her father took them, often with relatives and other Gaangalu families, fishing and camping at different places on the Dee and the Don Rivers. When camping, they didn’t take a tent but instead would “rig up” a tarpaulin as shelter. They would stay on pastoral properties if her Dad knew the owner but as it was their country, they didn’t need to ask or tell anybody else. Ms Blucher continued this with her children, to get them out to country and to go fishing.
73 Other traditional activities included hunting, gathering, taking and using water and fire. Ms Blucher’s father hunted and went shooting, fishing and caught pigs and porcupines. They cooked the porcupines in the ground and used porcupine oil on their skin. They also went fishing and swimming at Kenny’s Waterhole and would catch yellow belly, catfish, jewfish, perch and eels using mussels or earth worms as bait. They gathered bush foods including, among others, bush apples, jew jews, blackberries, and wild plums. Ms Blucher grew up on freshwater country and used the water to drink, cook food and to boil gumbi gumbi leaves, which is a plant that grows in and around Gaangalu country and is like medicine. Fire was used for cooking and boiling water. When camping, fire was used to help them see at night and keep them warm. Smoking ceremonies were also performed for cleansing and protection.
Intermarriage and trade across the regional society
74 In the old days, the different mobs would meet to celebrate, trade and sometimes find marriage partners. For example, Ms Blucher’s mother married Gordon Toby, a Gaangalu man, and has Wadja, Gaangalu and Guringbal connections. However, Gaangalu people with the same yuri, or totem, cannot marry another Gaangalu person with the same yuri.
75 Ms Rosemary Hoffman is 71 years old and was born in Gladstone, but was raised in Mount Morgan. She still resides in Mount Morgan.
A classificatory kinship system, a system of authority emphasising the role of senior people, and various funerary practices
76 Ms Hoffmann is a Gaangalu woman and got her country from her father, Bill Toby, a Gaangalu man. Bill Toby’s father and grandfather were Gaangalu. Her father’s father is William Toby II. Ms Hoffman explained that food was shared with other family members and that Gaangalu people cannot marry into families who share the same totem.
77 Ms Hoffman stated that she welcomes any child that visits, whether they are her family or not. This includes disciplining them if they do not behave. This was the same when she was growing up with her aunties and uncles. She states that if a Gaangalu adult is called upon, they are there straight away. Her and other elders give advice to kids that are in trouble, and they respect the elders. Ms Hoffman stated that they have to respect elders and they instil that respect in their kids today. Ms Hoffman calls her cousins “sister” or “brother”.
78 If there is a funeral, they always go or someone will go in her place if she cannot attend. They also go to funerals in the west.
An understanding of mythology, an understanding of spirits in the landscape, an understanding of sorcery and traditional healing, and responsibilities to manage and protect land and waters
79 Ms Hoffman’s father would sing at night time around the fire and tell them tales about the wind and the dark, saying they should not be afraid of the dark. Old People, people who have gone, whistle and talk to you. Ms Hoffman’s father taught her that it was a healing thing. Djandjarri used to live at Cattle Creek. Ms Hoffman would see the min min lights there. Her father told them not to be frightened of the dead ones but to take spiritual care in those places.
80 Her father told her to never go on other country or take anything because it was not theirs to take. She also explained that if you took something from country, something bad would happen to you. For example, some people got really sick. Ms Hoffman was taught that if she goes out of her country, she needs to tell the ancestors. Her father taught her to talk to the ancestors.
An understanding of totemism
81 The Gaangalu people in the Mount Morgan area’s totem is a carpet snake. The snake comes into the Dee River. All Toby family members have the snake as their totem, including her father, uncles and aunties. Ms Hoffman identifies as the totem of her father, who was carpet snake, and her mother, who was freshwater turtle. This is passed down to her children and the younger generation. You never eat your totem or marry someone with the same totem.
Customary use of natural resources
82 Ms Hoffman’s father taught her how to dig in the ground for water. They also swam in the Mount Morgan dam and creeks, and hunted goannas. When they hunted food, they went through mountains and would get lemons, bush lemons, mangoes, prickly pears, wild cucumbers, jujus, bush apples and witchetty grubs. They used fire to cook the witchetty grubs and kangaroos that they hunted to eat and sold the kangaroo skins. Ms Hoffman also drank gumbi gumbi or made it into a paste to use for medicinal purposes. She used it on her kids when they were young.
Recognition of gender specific and other significant sites
83 Mount Morgan dam is a significant and spiritual-type place. One of Ms Hoffman’s sister’s children passed away and her ashes were spread there. Her other sister wants her ashes spread there when she passes too.
84 Cattle Creek is a significant place where Djandjarri lived. Ms Hoffman saw min min lights there at night. There is a bora ring at Box Flat, which is a sacred place because men’s business is conducted there.
85 Men’s business is different to women’s business. Women’s business was done down the road from Piebald Hill. Piebald Hill is a women’s meeting and birthing place. Razorback Mountain is significant because it is shaped like a carpet snake.
An embodied relationship between people and their land and waters
86 Ms Hoffman lives and was raised in Mount Morgan. She said that it has always been their country. Her father was born in Mount Morgan and Uncle Gordon Toby was born at Wura. Ms Hoffman’s father told her she was Gaangalu because her family is from Mount Morgan down to the Dawson Valley, Banana, Biloela, Wowan, and Kroombit Mountain, and that is their country. Her father would talk about places, rivers and mountains such as the Dee River, Wura and the Bald Mountain. She always remembered her father saying, “this is your country”.
87 They know that the Dawson River is the east side boundary of their country. People recognise that this is Gaangalu land and belongs to the Tobys. Woorabinda is not their country, but they go there for funeral services and relatives live there. There are many Gaangalu families, some from the west, and they all consider themselves as one Gaangalu. However, to go to the west, you need an invitation. They can come to meetings, but they cannot talk for country or cut down trees. If they did, spiritually bad things would happen.
88 Gaangalu people respect the country. Ms Hoffman’s father always told them not to go on other country and take anything because it was not theirs to take. If you did, something bad would happen like getting sick.
89 Ms Hoffman said they do “Welcome to Country” at Mount Morgan and take the kids for cultural heritage walks. The Old People taught them the names of the hills, Bald Hills and Box Flats. As kids, Ms Hoffman and her siblings would walk everywhere and discovered the creeks, rivers, dams and caves. They learnt how to swim in the Dee River and swam in the dams and creeks at Mount Morgan dam. When walking in the bush, her father taught them how to dig for water in the ground. They also hunted and gathered food, using fire to cook. Ms Hoffman was taught the traditional ways by her father, uncle and aunts. Her father would sing at night time around the fire and tell tales about the wind and the dark, saying that they should not be afraid of the dark. Other ways the embodied relationship manifests is through sacred places, such as Box Flat, and totems, whereby Gaangalu people cannot eat their totem.
90 When they pass away, Gaangalu people go back to their country. Ms Hoffman states that her father’s spirit is there. Some people are buried on country. Many Aboriginals were killed at Lake Victoria and their spirits are there.
91 Mr Dale Martin Toby is 63 years old and was born and resides in Mount Morgan.
A classificatory kinship system and an understanding of totemism and intermarriage
92 Mr Dale Toby gave evidence that he is a Gaangalu man through his great grandfather, William Toby I, who is an apical ancestor in the claim, and his father, Gordon Roy Toby Snr, who is a Gaangalu man. Gordon Toby Snr’s father was William Toby II, and Gordon Toby Snr’s grandfather was William Toby I. Both are Gaangalu men. Mr Dale Toby has rights in country because he is connected to a Gaangalu ancestor. Mr Dale Toby’s mother is an Iman woman, born and raised in Woorabinda.
93 Mr Dale Toby has two totems. On his father’s side it is the carpet snake, and on his mother’s side it is the emu. You cannot eat your totem and it is bad luck if you do. For example, you could pass away or things might happen to your children. Marriage may occur between east and west Gaangalu. Mr Dale Toby’s brother and his wife are married that way. However, Mr Dale Toby’s father told him that you cannot marry someone with the same totem or marry “too close”. If they did, they would be punished. To avoid this, they figure out who is who and ask, “who’s your mob?”.
94 Mr Dale Toby’s children are Gaangalu through him. A person is Gaangalu through their Gaangalu ancestors. It is passed down from generation to generation. Mr Dale Toby’s father told him he was a Gaangalu man and he tells his children that they are Gaangalu and where their country is. Mr Dale Toby says that is important for the next generation.
95 Mr Dale Toby has lived most of his life in Mount Morgan. While in Mount Morgan, he had aunties and cousins visit, some from different tribes. Some cousins are Darumbal by marriage but they are still their blood cousins and continue to stay with them. He would visit cousins in Banana, Moura, Theodore and Mount Scoria near Thangool. They would go fishing in the Dawson River. When traveling to Theodore, they would go swimming, and Mr Dale Toby’s father would catch and cook turtles and eels.
96 Mr Dale Toby explained that one of the ways Gaangalu families stay together is that they “get together” and sometimes live together. Uncles, aunties and nephews can sometimes live in the one house, and you treat them like one of your own. They call cousins “brother” and “sister”. If you have young nieces and nephews, you take over the parental role if their parents are not around and treat them like they are your children. Grandparents look after the grandkids if parents are away or working. Sharing and helping are things that Mr Dale Toby’s family has done over his lifetime. It is really disrespectful to not help, and if you were busy, you would get someone else from the family to help. They also treat each other’s places as their own and will help themselves.
An understanding of mythology, spirits in the landscape and various funerary practices
97 Mr Dale Toby talks to country and talks to the ancestors of his country. His father told him to talk to the country and the spirit of the Elders because they will look after you. Mr Dale Toby has told this to his children so that they are safe on country. When he leave Gaangalu country, he introduces himself to country as a Gaangalu man and tells the ancestors where he is from. He states that you need permission to go on another tribe’s country.
98 If Mr Dale Toby finds an artefact, he will tell the ancestors what he has found. Bad things will happen if you take something from the country without the peoples’ or spirits’ knowledge. The best thing is to put things back where they were found or not to touch anything. A younger Aboriginal girl once took an artefact from Gaangalu country and got sick. A Gaangalu elder told her to return it and they did a smoking ceremony to heal her. Mr Dale Toby also explains that you can hunt but you have to talk to the land and spirits.
99 There are also some places on Gaangalu country that Mr Dale Toby will not go to, such as where women’s business is conducted. There are also some places that he might have to talk to elders before visiting, for example Lake Victoria, which is a sacred place. His father and uncles told him not to climb Wandoo Mountain because it has evil spirits. Stories have been told by Mr Dale Toby’s father and grandfather that bad things happened up there, such as two tribes having fought there.
100 Mr Dale Toby’s father told him about various mythological creatures, including:
(1) The Mundagadda which created the rivers and ranges in the dreamtime. It created all the creeks and ranges around the Callide Dawson Valley area, and the boundaries, which are the Dee, Don and Dawson Rivers.
(2) The min min lights on Piebald Mountain which are like spirits and draw you away from your tribunal area.
(3) The Djandjaddis which are small hairy men that take you away like the min min lights.
(4) The Kadartchi Man who is like a witch doctor. He does bad things like make people sick or catch you. In cross examination, Mr Dale Toby accepted that he called medicine men “witch doctors” who might point the bone at you and sing you to death but to his knowledge, they are no longer around.
(5) Featherfoot which is like a hitman and kills people.
(6) The Tall Man who is like the Kadartchi man.
101 Mr Dale Toby’s father and uncles told him about various mythological signs, including:
(1) A kookaburras laugh means someone is pregnant.
(2) A black cockatoo with a red tail means it is going to rain soon.
(3) Three or four black cockatoos flying around means it will rain in three or four day.
(4) A black crow means bad news is coming.
102 Smoking ceremonies are used for protection to get rid of bad spirits. For example, Mr Dale Toby’s father performed one when they were fishing at Riverslea because there was “something in the air”. He made smoke with some bark and did a complete circle around the fire and everyone who was there. Sandalwood twigs and leaves are usually used, which makes a thick, white smoke. Other examples of when smoking ceremonies are used is for protection from crocodiles in the river or to rid bad spirits in a house if someone died there or something bad happened. It is usually the men who do the big smoking ceremonies but women can too. A smoking ceremony was also performed when Aboriginal human remains were found in Theodore. They were taken to Biloela Police Station and ultimately reburied. The police told Phillip and Debbie that “funny things” were happening at the police station so Phillip did a smoking to rid any bad spirits.
103 Mr Dale Toby said that they go to funerals for Gaangalu people, including on the west side of the Dawson River. Someone from the family must represent the Tobys. They believe that when elders have passed, they go back to country. It is important that they are buried on country. This is also why they talk to country; they are talking to the old people.
A system of authority emphasising the role of senior people
104 Mr Dale Toby gave the evidence that elders are important in the Gaangalu community and you have to respect the elders. They teach the younger people about what it means to be Gaangalu and teach Gaangalu ways. Gaangalu people can then also hand down information and stories told by the elders to the next generation. Elders also discipline children, even if they are not their own children. Sometimes when the elders are talking, you shouldn’t go near them. When decisions are made, the whole family will get together and the elders have the last say in the decision. There are also some places that require talking to the elders before visiting. Mr Dale Toby was told by the elders not to climb Wandoo because of evil spirits.
Responsibilities to manage and protect land and waters
105 Mr Dale Toby gave the following evidence that it is their duty to look after their country. First, you need permission to go on another tribe’s country. This includes other tribes visiting Gaangalu country and visiting Gaangalu country on the west of the Dawson River. Second, you must respect and look after the land, otherwise it will not look after you. An important way they protect their country is by doing cultural heritage walks, where artefacts, caves, wall paintings and old campsites are shown to the next generation. These walks are important for the next generation so they know who the Gaangalu people are. Mr Dale Toby was told that if something is not in danger, they have to leave them there because it proves that their ancestors have been there before them. Mining disturbs the land and artefacts are moved to protect them. Before artefacts are removed and taken to a keeping place on country, an archaeologist will take a photo of it and use GPS to record where it was found. Artefacts are to be returned if possible. Third, you can only take resources from country as needed. When hunting, you have to talk to the land and the spirits to tell them that you are taking the animal for food. You cannot take more than is needed and waste food.
Customary use of natural resources and an understanding of sorcery and traditional healing
106 Mr Dale Toby has rights in country which means he has the right to take things from country, protect artefacts on country, talk to ancestors, and access country. He and his family used to visit Banana, Moura, Theodore and Mount Scoria near Thangool, and went fishing in the Dawson River outside of Moura and at Rannes. The Gaangalu people can take and use resources from country and exercise their rights and interests, including fishing, camping, using fire, hunting, gathering, taking and using water. For example, gumbi gumbi is used as medicine for colds, sores and your scalp. Mr Dale Toby’s father showed him how to make boomerangs from a U-shaped branch from a dead tree.
Recognition of gender specific and significant sites
107 Mr Dale Toby gave evidence that special places on country include:
(1) Wura, where Mr Dale Toby’s father was born.
(2) Piebald Mountain, where the min min lights are.
(3) Wandoo Mountain, which is not a good place because there are evil spirits.
(4) Axe Factory, where many axe heads carved by Gaangalu people can be found.
(5) Rannes, where they used to go fishing and where the native and normal police were.
(6) Lake Victoria, where a massacre happened.
(7) Wowan, where there is a Bora Ring.
(8) Theodore, where Aboriginal human remains were found.
An embodied relationship between people and their land and waters
108 Mr Dale Toby was born and grew up in Mount Morgan. He has lived most of his life there. His father was born at Wura and worked at Dululu and Mount Morgan.
109 His father told him that he is Gaangalu and that Gaangalu country is, “from the Mount Morgan range towards Riverslea, this side of Gogango Range, down to the Dawson River, down past Baralaba, down to Theodore, cutting back up to Callide Dawson Valley Range, around near Biloela, and back up to Mount Morgan”. The rivers, ranges, creeks and boundaries were made by the Mundagadda. Mr Dale Toby and his father travelled to various places on country. Mr Dale Toby tells his children that they are Gaangalu and where their country is.
110 The other side of the Dawson is not their country, but they are a related mob. When the east and west side come together as one tribe, they are stronger and “one big family”. However, they have different rights and responsibilities. His father would talk about other tribes. For example, Wadja on the other side of the Dawson, Darumbal on the other side of the Mount Morgan range and the Gooreng Gooreng near Gladstone. These groups are their neighbours and they have good relationships with them.
111 When Mr Dale Toby talks to country, he is talking to the ancestors of his country. He does so when he travels outside of Gaangalu country. Permission is also needed to enter another tribe’s country. Mr Dale Toby has rights in country and has the right to take things like dead wood from a fallen tree to make nulla nulla, spears or boomerangs and woomeras. He also has the right to access his country and protect artefacts on country from the environment, mining and vandalism.
112 When he is on country, Mr Dale Toby’s father told him to talk to the country and the spirit of the Elders because they look after him. Other facets of an embodied relationship between people and their land and waters are the existence of special places on country, the duty to respect, protect and manage country, performing smoking ceremonies for protection or to rid bad spirits, and the belief that a deceased person’s spirit goes back to country.
113 Mr James Robert Waterton is 42 years old and was born and resides in Rockhampton.
A classificatory kinship system, an understanding of totemism and intermarriage and a system of authority emphasising the role of senior people
114 Mr Waterton is a Gaangalu person though his great grandfather, William Toby I. Mr Waterton’s father is an Iman man. Mr Waterton’s mother, Elvina Waterton, nee Toby, was born at Mount Morgan. Elvina’s father was William Toby II who lived at Mount Morgan and her grandfather was William Toby I. Elvina had five brothers and seven sisters who all grew up at Mount Morgan and were around Mr Waterton as he was growing up. Mr Waterton has four sisters who are Gaangalu people too. Mr Waterton’s Uncle Philip was like a second father to him and taught Mr Waterton a lot about being Gaangalu.
115 Mr Waterton was taught by his parents and other Gaangalu people that to be Gaangalu, you must be a descendant of a Gaangalu person. If you are not related in this way, you cannot join or decide to become a Gaangalu person. You do not become Gaangalu through marriage, but any children will be Gaangalu because they will have the bloodline. Most of the time, children with a Gaangalu ancestor will also have ancestors from other groups. Children can follow the line of one of their ancestors, and are often brought up and grow up with a stronger attachment to one parent’s group. For example, Mr Waterton followed his mother to be Gaangalu, as opposed to being Iman like his father. Most children with Gaangalu ancestors who grow up in or near the Gaangalu area are brought up as Gaangalu people.
116 Mr Waterton’s totems are carpet snake and Cabbage Palm. His carpet snake totem comes from his mother’s Gaangalu totem and his father’s Iman totem. He also has the Cabbage Palm as his totem from his mother. The carpet snake is a special animal for Gaangalu people. Gaangalu people have respect for carpet snakes and they cannot kill or eat a carpet snake. Gaangalu people are told that the carpet snake is Mundagarra, who is special to them like a totem.
117 When Mr Waterton was growing up, a family was not just a mum, dad and the children. It included the uncles, aunties, cousins, nieces, nephews, grandparents and all other relatives. Words like “uncle”, “aunty”, “brother”, “sister” and “granny” described all people about the same age or generation. They were all part of the family. All of the older people looked after all of the children and all of the children obeyed and respected all of the older people in the same way that they would obey and respect their parents or other elders. It was common for children to live with uncles, aunties, grandparents and other relatives. They are a large group that looks after, shares and lives with each other.
118 Elders are important. Mr Waterton thinks of his Uncle Philip Toby as an elder. Auntie Lyn Blucher is an elder too. Mr Waterton says that elders like Uncle Philip and Auntie Lyn are old and wise Gaangalu people who are depended upon when important matters have to be decided or action has to be taken. They are the decision-makers and leaders. Elders are not elected or appointed. Instead they gradually develop a reputation and are respected.
An understanding of mythology and recognition of gender specific and other significant sites
119 Mr Waterton said that Mundagarra, the rainbow serpent, looks after Gaangalu people. Spirits reside in special places on country. Near Banana, there was a place that had been used for ceremonies which was where the old people gathered. Mr Waterton took this to mean the spirits of ancestors. Similarly, Mr Waterton’s mother told him to avoid a massacre and burial site near Banana and a women’s site near Woorabinda so he would not disturb the spirits there. He tells visitors not to go near these sites. Third, sandalwood grows in Gaangalu country and is used for smoking. The smoke from its branches and leaves cleanses and drives bad spirits away.
Responsibilities to manage and protect land and waters
120 Mr Waterton was taught that other people, including Gaangalu families from the west of the Dawson River, should not use their country unless they agree. He was taught the same with respect to using other peoples’ country. Doing this allows the country to be kept safe and makes sure that visitors coming onto country are kept safe. In particular, visitors can be told that they shouldn’t go to a particular place, or do things, out of respect for the ancestors and the future of Gaangalu people. This keeps the country and visitors safe. For example, there are sacred trees that should be preserved.
Customary use of natural resources and an understanding of sorcery and traditional healing
121 Growing up, Mr Waterton went camping around the Mackenzie, Comet and Dawson Rivers with his family. They did not ask or tell anyone before they went because they were taught that it was their country and they were free to go camping and take animals and plants. When he was on country, Mr Waterton was taught how to catch and cook animals, especially kangaroos, echidnas and yellow belly fish. They would gather timber to make a fire and cook. In addition to gathering and hunting plants and animals for food, Gaangalu people use other things found in Gaangalu country. For example, the gumbi gumbi tree grows on their country and its leaves can be boiled to make a drink that helps overcome sickness. Similarly, sandalwood grows on country and is used for smoking to cleanse and drive away bad spirits. Trees were used for firewood and to make implements, and they gathered bush honey from native bees.
An embodied relationship between people and their land and waters
122 Mr Waterton’s mother was born at Mount Morgan, and her father, William Toby II, lived at Mount Morgan. Mr Waterton was taught by his parents, uncles, aunties and old Gaangalu people that their country covers Theodore, Moura, Mount Morgan, Biloela and across to the Dawson River. Gaangalu people have lived, died and been buried on Gaangalu country. Mundagarra created Gaangalu country and looks after Gaangalu people. To Gaangalu people, he is a carpet snake and is special like a totem. He created their country, and lives where there is water, under the rivers and under the mountains. This country is Gaangalu country and Gaangalu people have the right to access country, camp, take resources, hunt, use timber, make fire, use gumbi gumbi and take bush honey.
123 The other side of the Dawson River is west side Gaangalu country, and they speak for themselves and their country. The families in east and west Gaangalu respect each other and would not do or say things relating to country that is not on their side without making sure the right families know and agree. These different families are not different mobs though. They get together, use the same language, follow the same rules and have the same stories. They are Gaangalu people and while it is all Gaangalu country, permission is still needed to enter country.
124 Mr Waterton was brought up with the understanding that his family’s country, the eastern part of Gaangalu country, is where he belongs. It has always been the country for his family’s ancestors and will always be the country for Gaangalu people in the future. To be Gaangalu, you must be a descendant from a Gaangalu ancestor.
125 Ms Deborah Maree Tull is 63 years old, was born at Mount Morgan and resides in Rockhampton.
A classificatory kinship system, intermarriage and a system of authority emphasising the role of senior people
126 Ms Tull is a Gaangalu woman through her great grandfather, William Toby I. Her father, Gordon Toby, was the son of William Toby II, who was a Gaangalu man. William Toby II was the son of Gaangalu man William Toby I.
127 Ms Tull’s mother, Heather Toby nee Tyson, was the daughter of Harold Tyson, who was a Gaangalu man from the west side. Harold Tyson descended from apical ancestor Pater Tyson and is the son of a Wadja woman, which gives Ms Tull her connection to Wadja. Ms Tull’s mother did not identify as Gaangalu, and told Ms Tull that she is Wadja Wadja through her father’s line but knows Gaangalu country and ways because of her marriage to Ms Tull’s father.
128 Ms Tull has connections to other groups but strongly identifies as Gaangalu through her father because her father and Uncle Bill told her that they are Gaangalu and that she is Gaangalu. To be Gaangalu, you must come from a Gaangalu ancestor.
129 Ms Tull and her husband, who is an Iman man, have five children together and 11 biological grandchildren. Two of her children were born in Mount Morgan before she moved to Rockhampton. Ms Tull’s oldest daughter, Jodi, and her partner, who is Darumbal, have six foster children who are Darumbal descendants. Ms Tull classes her foster grandchildren as her grandchildren but they are not Gaangalu because they do not come from a Gaangalu ancestor.
130 There is intermarriage between Gaangalu from the west and the east. For example, Ms Tull’s brother married a Gaangalu woman from the west. Their children have a connection to both the east and the west and have rights in both areas of country. Her brother takes his family to Blackdown Tableland once a year to meet and get together with other Gaangalu families. Ms Tull’s daughter, Shalee, was also in a relationship with a west Gaangalu man.
131 Ms Tull grew up on Gaangalu country and spent “a good part” of her life at Mountain Morgan. Her knowledge of Gaangalu country comes from her father, mother and her father’s brother, Uncle Bill Toby. Ms Tull has strong connections to Gaangalu country through her father and grandfather. You must come from a Gaangalu ancestor to inherit and be connected to Gaangalu country. Her rights to go on country and take her children and grandchildren on country come from her father and their ancestor William Toby I. All of her family has rights in country and the next generation will have those rights as well. Ms Tull’s foster grandchildren can use and access Gaangalu country, and can go camping and fishing, but they do not have rights to inherit or make decisions about Gaangalu country.
132 Ms Tull’s generation are becoming the next generation of Elders in the family because the Elders from her father’s generation are now deceased. When important decisions need to be made on country, Gaangalu families will have their own meetings. Although every person in Ms Tull’s family gets a say, Elders make the final decision. Ms Tull believes that that is what the other Gaangalu families do as well.
An understanding of mythology and an understanding of totemism and of spirits in the landscape, recognition of gender specific and other significant sites and male and female rituals and initiation ceremonies
133 Ms Tull talks to the ancestors when on country. She does this when she travels to Mount Morgan and gets close to the Mount Morgan Range and before going on cultural heritage surveys to let them know that it is her and that she is on country. If Ms Tull locates and identifies an artefact to be removed when doing a cultural heritage survey, she talks to the ancestors to let them know that she is looking after country. When Ms Tull visits the west side of the Dawson River, she announces herself and tells the ancestors that she is entering that area.
134 Ms Tull recounts various story places:
(1) When traveling from Rockhampton to Mount Morgan, you can see the shape of the Gaangalu serpent, Mundagadda. There are large boulders on the range which are the Mundagadda’s eggs.
(2) The top of Piebald Mountain is where the Mundagadda would rest and keep warm from the sun.
(3) Axe Factory is near Piebald Mountain and is where Gaangalu ancestors used to make axes and grinding stones. A lot of artefacts are there.
(4) Lake Victoria is a sacred place. They do not go there because their ancestors were massacred there and the deceased were drowned in the lake. Ms Tull once went to the lake and felt a bad spiritual presence. Uncle Bill later told Ms Tull that she should not go the lake.
(5) Wandoo Mountain is the face of an old Gaangalu man. It is a men’s place and only men can go there. Uncle Bill told Ms Tull that it is a place where the men used to fight.
135 Ms Tull’s family’s carpet snake is their totem, or meat, which they call yuri. They cannot eat their Yuri because it is their ancestors. Their Yuri means that they are connected to country and that they are part of the Toby family. Uncle Bill told Ms Tull that when you see your yuri, it is their ancestors and they are watching you. Uncle Bill also told her that the cabbage alm tree is their plant totem. It is also their ancestors looking over and watching them. There is a cabbage palm tree close to the keeping place which watches over their artefacts that were removed from country.
136 Smoking ceremonies are an important part of Gaangalu culture. Smoking ceremonies have been performed in a variety of circumstances, such as not to disturb spirits in a hospital building before it was moved, to smoke an area that was allocated to be an extension of the cemetery, and when a survey team accidentally came across a men’s area when doing a big cultural heritage survey for a gas company. From then on, all of the Gaangalu survey teams were smoked before going on country.
Responsibilities to manage and protect land and waters
137 Elders are involved in decision making, especially when important decisions need to be made on country. When Gaangalu people take resources from country, they only use enough for what is needed.
138 Ms Tull participates in cultural heritage surveys as a means of managing and protecting country. The reason for the surveys is to locate and identify artefacts and special places on country. Participations in the surveys ensures that Gaangalu get onto country to identify and protect their special places and artefacts, especially as mining companies will perform their own surveys regardless of whether any Gaangalu people participate.
139 Gaangalu people’s first rule is that they should not move things from country but if they are moved, they are stored at keeping places. If an artefact is being removed, an anthropologist marks the spot where it was found and records the location so it can be returned when the mine closes. Sometimes artefacts cannot be removed, such as a place with many scarred trees or a large scatter of artefacts, and the Gaangalu people will talk to the mining company to fence off and avoid disturbing those areas. The Gaangalu people regularly go to the keeping places to check on artefacts to ensure they are being stored properly. Younger Gaangalu men and women are also taken on surveys and to keeping places so that they can learn to recognise artefacts and scarred trees and the different places where they are located. The next generation of Gaangalu people have to look after and protect country.
Customary use of natural resources and an understanding of sorcery and traditional healing
140 When growing up, Ms Tull’s father would take her family camping and fishing on country, in places such as Delusion; the Dee, Riversleigh, Don, sometimes the Dawson Rivers; waterholes at Piebald Mountain and other freshwater creeks. Her father would let property owners know that they were going on to the properties to visit or camp. The property owners were aware of the Toby family and had no problems with them accessing the land. Ms Tull has also taken her children and grandchildren on country for camping or for a day out.
141 When they went camping, Ms Tull’s father would make a shelter using wood with a fork in it together with branches and leaves. They would not take much food with them. Instead her father would go hunting and fishing, bringing back fish, eels, freshwater turtles, porcupine or goannas. Her parents would catch fish, freshwater turtles, crawchies and mussels and Ms Tull would help to clean and cook the food that was caught. The food was cooked on the coals, on the ashes or in a saucepan on the fire. They also gathered different types of bush food on country including bush lemons, jew jews, bush cucumbers and prickly pears. Her father would use a big rock with a flat top as a table to put the food on.
142 Gaangalu people are freshwater people and have used fresh water all of their life. Water is used for drinking, cooking, swimming and bathing to keep clean. When they went camping, Ms Tull was told not to waste water. They only used enough for what was needed. A fire was always going when camping and rocks were used in a circle around the fire to keep it safe and prevent it from spreading. Fires would be made out of either a light wood during the day for cooking or a hard heavy wood for slow burning for warmth at night. Sometimes leaves or dried horse or cow manure was put on the fire to make smoke to keep the mosquitos and other insects away.
143 Gumbi gumbi is a good bush medicine for any type of sickness. Ms Tull and her husband get their gumbi gumbi from country. The leaves can be boiled and made into a liquid which can be drunk for an upset stomach or the liquid can be put in a bath for healing sores. The leaves can also be rubbed on sores. Ms Tull also thinks that gumbi gumbi can be used to detox.
An embodied relationship between people and their land and waters
144 Ms Tull grew up in Mount Morgan on Gaangalu country, spending a good part of her life there. Even though she now lives in Rockhampton, she is not far from Gaangalu country and has lived or visited Mount Morgan and country for most of her adult life. She has taken her children and grandchildren back to Mount Morgan. When they were taken out on country, either by Ms Tull or Ms Tull’s mother, they were told about places like Mount Scoria and Mount Ramsay, which is Wandoo in Gaangalu language.
145 Ms Tull’s knowledge of Gaangalu boundaries come from Uncle Bill. He told her that Gaangalu country follows the Dawson River to where it meets Mackenzie River up to where it meets Fitzroy River. Then it follows the Gogango Creek to Sandy Creek, then across to the Mount Morgan Range down south to the Callide Range, to the Dawes Range and west to Cattle Creek, and back to the Dawson River. The Mount Morgan range is the boundary between Gaangalu and Darumbal.
146 Ms Tull has an awareness of neighbouring groups, including:
(1) The Darumbal people, who are their eastern neighbours. Rockhampton and Gracemere are part of Darumbal country.
(2) The Wulli Wulli people, who are their southern neighbours. They are south of Lonesome Creek which is Gaangalu’s southern boundary.
(3) The Byellee, the Gooreng Gooreng and the Tareblang Bunda people, who are their neighbours on the east going to Gladstone way. They are part of the Port Curtis Coral Coast claim.
147 In Gaangalu country there is an east and west side, but Gaangalu people are all one group, one mob and one claim. Despite this, there are rules about people on the east side coming over to the west side, and the same is true in the other direction. To get to the west side, you go over the Dawson River. If Ms Tull is visiting someone on the west side, she will call them and let them know and announce herself to the ancestors. When Gaangalu people from the east visit the west, they must show respect. If the Gaangalu from the east visit or camp on country in the west, they should let someone know first. This is the same for Gaangalu from the west going to the east. Moreover, neighbouring groups should not do things on Gaangalu country unless they ask permission and let someone know.
148 Ms Tull has the right to go on country through her father and grandfather. The land is inherited by descent from a Gaangalu apical ancestor; in Ms Tull’s case, this was William Toby I. All of the Toby family has rights in country and the next generation will have those rights too. The next generation will have to look after and protect country. Gaangalu people participate in cultural heritage surveys as a means of managing and protecting country.
149 Other examples of an embodied relationship between people and land include totems as a connection to country, taking gumbi gumbi from country to use as bush medicine, and taking and using resources and participating in traditional activities on country.
150 Mr William Phillip Toby is 69 years old, was born in Mount Morgan and now resides in Baroloola.
A classificatory kinship system, a system of authority emphasising the role of senior people, intermarriage and trade across the regional society and an embodied relationship between people and their land and waters
151 Mr Phillip Toby was born and grew up in Mount Morgan and is the third eldest of Bill and Phyllis Toby. Mr Phillip Toby calls himself “Phillip” because there was already William Toby II, his grandfather, and William Toby III, his father. He is Gaangalu because his father and grandfather were Gaangalu. His mother was Iman but Mr Phillip Toby always took his father’s side. Mr Phillip Toby has special rights to country because he is Gaangalu and the eldest male in his family. He has a right to speak for Gaangalu country, a right to certain knowledge and the right to conduct smoking ceremonies.
152 Mr Toby’s father, Uncle Gordon and Aunty Heather, passed down information about being Gaangalu, even though Aunty Heather was not Gaangalu. When Mr Phillip Toby’s father and uncle were gone, Aunty Heather passed on the information she has been told by them. Mr Phillip Toby’s grandfather would never leave his country but he and his siblings were part of the stolen generation. Elvie Hutchinson, Mr William Toby III’s great aunty, passed down a lot of information about their connection to the land. Ms Hutchinson’s brother, Gordon Hutchinson, was a senior Gaangalu man and grew up with Mr Phillip Toby’s father. They lived and worked around the Dululu area, down towards Banana and then down towards Theodore. That is Gaangalu country. Ms Hutchinson grew up in Banana and knew Mr Phillip Toby’s grandfather. She talked about how William Toby II, Lizzie Palmtree and William Toby I told her that this was their country, up through Mount Morgan. Mr Phillip Toby’s father was born in the bush in Eulogie and always talked about Mount Morgan as part of his country. Mr Phillip Toby said that they, “all lived on Dad’s country”.
153 Mr Phillip Toby’s father used to talk about how he went from Baralaba down to the Dawson, past where the highway is further down from Blacks Camp. The Dawson River, Theodore, Mount Morgan, and Dee River from Mount Morgan around the range of Razorback are the head waters. The edges of the head waters all run back from Mount Morgan to Biloela, towards Rannes and on the other side, into the Dawson to Banana Creek and then to Dawson. They used to go to Theodore and to Lonesome Creek. That was their boundary. Uncle Robert (Toby) was born in Baralaba on the reserve on the other side of the river. Mr Phillip Toby’s grandparents did not leave their country because they knew it was important to stay in their country. There were also shared areas; for example the top of Razorback where Darumbal and Gaangalu people met.
154 Mr Phillip Toby explained that they have knowledge, access and use of places in the claim area. His father took the kids, especially Mr Phillip Toby, Buster, Johnny and Henry Anderson, walking around country and taught them where everything was. His father took him to Box Flat and showed him fish traps in the Dee River, and pointed out a bora ring that was used for the initiation of men. At Eulogie, east of Piebald Mountain, he pointed out a women’s site and told them to never go there. Past Wura there was Eulogie Station. Mr Phillip Toby’s grandmother and grandfather used to live there and had Uncle Gordon, before they moved to Mount Morgan. They always called Mount Morgan part of their country, and walked through the country every day and talked about their connection to the land. They told them about their country, about what to look for, and how to hunt and gather off the land. Mr Phillip Toby’s father lived off the land and showed his children what sort of food to eat. Mr Phillip Toby used to walk to Cattle Creek and go to the back of Mount Morgan where there is lots of bush tucker. Pennyroyal Creek is an important place where the old Gaangalu people used to sit, make spears and sharpening points. His father used to say that those people were Mr Phillip Toby’s grandfather’s mob. There is also an axe factory at the top of the range at Wura. This was a men’s site. His father used to talk to them about the sandstone and sharpening stones near Mount Morgan and Horse Creek.
155 His father also knows how to track through the bush without making noise and how to use sign language. Mr Phillip Toby was taught about the country by “listening” to the country. He now teaches his kids to care for country by looking at artefacts.
156 The Gaangalu’s embodied relationship with their land manifests in various ways. For example, Mr Phillip Toby’s father talked about how the country was formed by the carpet snake, Mundagarra, and that Wandoo Mountain is a scared place that they are not allowed to visit because it was an initiation site. They were taught to call out and say hello to country so that bad things would not happen. They were also told stories of Djandjarri men.
157 Mr Phillip Toby’s father called the Gaangalu people on the west of the Dawson River “cousins”. Those on both sides of the Dawson River have always seen themselves as Gaangalu and call each other “brothers”. He cannot recall his father or Uncle Gordon going to the west side and Mr Phillip Toby would not go to the west side because it was not his country. However, his father told him that they shared stories, songs and dances with the west side and shared spears, stone axes and other things that might not be on one side of the Dawson River. They also had intermarriage between the east and west Gaangalu and arranged marriages with other tribes. Mr Philip Toby’s father told him about arranged marriages and that the old people would talk about who should or should not marry each other. They looked at bloodlines and kept an eye on who was marrying who. Mr Phillip Toby’s grandfather and Lizzie Palmtree, who was an Iman woman, would have had an arranged marriage as they were from opposite tribes.
158 The Andersons and Lambs are Mr Phillip Toby’s first cousins. Mary Ann Lamb was his great grandmother. The families grew up together, and were at the same family gatherings, get-togethers, birthdays and funerals.
An understanding of mythology
159 Mr Phillip Toby gave evidence that he has the right to perform smoking ceremonies for cultural events. His father and uncles passed that down to him. People and artefacts can be smoked for safety. It makes sure that the spirits and Gaangalu people are safe.
160 His father told him that the country was formed by the carpet snake, Mundagarra. Mr Phillip Toby’s father and Uncle Gordon told him that Mundagarra travelled and formed the land. His father told him that Mundagarra starts at Wura and goes down to Piebald Mountain. She used to live in the big lagoon in Eulogie and travelled to Mount Morgan, forming rivers like the Dee River, and laid her eggs past Box Flats or Blacks Flats. The rock formations at Box Flats are her eggs. She also made the fish traps past Box Flats, and Mr Phillip Toby’s ancestors looked after them. The Mundagarra laid to rest on top of Razorback Range, which is an important area because it was a meeting place with other Aboriginal people.
161 Bad things can happen if you do not call out and say hello to country. Mr Phillip Toby’s father taught them to always say hello and talk to the country because the country is their mother and they must respect that. It is also important for Gaangalu people to welcome visitors to country.
162 Mr Phillip Toby was told stories about the Djandjarri men. They were little hairy men who sat in the shadows of the brush and waited to take children away. Mr Phillip Toby was told stories about kids being taken away by Djandjarris. He was told not to go to places where there was Djandjarri because it was either a bad site or a men’s or women’s site. They were also told not to run around at night because of the Djandjarri men.
163 Gaangalu remains have been repatriated back to country, on Mount Scoria, because that was where the spirit belongs. Mr Phillip Toby feels “funny” at Mount Scoria.
An understanding of totemism
164 Mr Phillip Toby’s totems are the Gaangalu palm tree and the carpet snake, the waturu. They are the Gaangalu palm tree waturu. His children have that totem.
An understanding of spirits in the landscape, male and female rituals and initiation ceremonies and recognition of gender specific and other significant sites
165 Wandoo Mountain is a sacred place. He was taught to always talk to the mountain as soon as he came across it. His father also told them that they were not allowed up there because it was an initiation site for young men. Mr Phillip Toby told his children that they are not allowed there because it was a sacred site and bad things would happen. He was also told other stories that are not appropriate for him to repeat. There is an axe factory at Wura, which is also a men’s site. There is also a women’s site at Eulogie. His father told him to never go there.
Responsibilities to manage and protect land and waters
166 As the eldest male in the family, Mr Phillip Toby has the authority and right to speak for country. Caring for country is an obligation and it is important to re-establish their connection to land because Mr Phillip Toby is a senior member of Gaangalu. Mr Phillip Toby walked the land and taught his young children that he was not just looking at artefacts. Instead, he wanted them to get the feeling of walking on land and to teach them about it. It was what his grandfather did. It is safe to take something from country if you ask permission.
Customary use of natural resources
167 Mr Phillip Toby’s father lived off the land and knew what food to use. There was a lot of bush tucker out the back of Mount Morgan. His father also went fishing, hunted kangaroos and sold the skin, and taught Mr Phillip Toby how to catch emus by singing. They also gathered and took resources, such as bush yams, bush berries and bush apples.
168 Ms Margaret Kemp is 67 years old, was born in Rockhampton and now resides in Duaringa.
A classificatory kinship system, an understanding of totemism, intermarriage and a system of authority emphasising the role of senior people
169 Ms Kemp’s Gaangalu name is Budbarra Gayu which means porcupine woman. She was given that name by her father. Her father gave her sister the Gaangalu name Nyuligi which means black girl. Her father, Karl William Kemp, was born at Bauhina Downs on Planet Downs. He was commonly known as Jack Kemp. His parents were Ada Mummins and Willy Kemp. Ms Kemp was told that Ada Mummins was a Garingbal or Waynigigu woman.
170 William Kemp’s mother, Ms Kemp’s great grandmother, was Maggie of Dingo, who was a Gaangalu apical ancestor. Ms Kemp claims her Gaangalu connections through her father Jack Kemp, her grandfather William Kemp and her great grandmother Maggie of Dingo. Ms Kemp’s mother, Amelia May Kemp (nee Murray), was a Ganggari and Kamilaroi woman. Ms Kemp could claim either group but because she grew up on her father’s and grandfather’s country, her strongest connection is to Gaangalu.
171 Ms Kemp’s Gaangalu knowledge comes from growing up with, observing and being taught by her mother, father, and her extended family and from watching and talking to other Gaangalu Elders, such as her father’s brothers and sisters. Ms Kemp spent a lot of time with her father, who spent most of his life living and working on country.
172 Ms Kemp has 12 siblings. All of her siblings, uncles and aunties were brought up on country. Ms Kemp has four children and they were familiar with country through her and her siblings. Her oldest son’s Aboriginal name is Bankoo Barrawirra Tugunkuna Dunka, which means to look and observe. He learnt Gaangalu language from his father. When Ms Kemp’s brother Jack Kemp Jnr passed away, she gave Bankoo to his spirit to guide and protect him through life. Ms Kemp’s son Jack was named after her father Jack and is called Doongoolo, which means emu. Ms Kemp’s other two children, Josh and Sarah, do not have Gaangalu names yet. Ms Kemp also has 19 grandchildren and two adopted great grandchildren.
173 Ms Kemp stated that cousins are like, and as close as, sisters and brothers. They call their aunties “mum” and their uncles “dad”. They helped raise them and they learned from them. Uncles and aunties could treat their nieces and nephews as their own children, including being able to discipline them. Ms Kemp called her cousin Aunty Patsy because she respected her as an Elder. Ms Kemp’s grandchildren call her Gammi, which means grandmother in Gaangalu. When she was growing up, she called older women Old Girl or Nan.
174 Some Gaangalu families spent a lot of time together and stick together. For example, the Mickelo mob would visit the Kemps regularly and stay with them, as well as the Harrisons, Tysons, Leishas and Malones. The Tobys are east Gaangalu but they do not visit the west of the Dawson River. Uncle Tim Kemp and Ms Kemp’s father acknowledge the Tobys as Gaangalu.
175 There are rules about marriage and relationships. You cannot marry into or have a relationship with your own totem. Gaangalu people and families have different totems. Ms Kemp’s totem is the googabinge, the scrub turkey, and the gubba, the native bee. People from her family line cannot marry another person who has the scrub turkey or native bee as their totem. The old Gaangalu women and men would tell them this. Having the same totem makes them very close, like a brother or sister. Before a Gaanaglu person marries or gets into a relationship with another Gaangalu person, they tell them about their family connections. If a couple who are too close have a relationship or get married, they will get very sick or have sick children. Ms Kemp’s father told her about this. It is now Ms Kemp’s job, and other Elder women in her family, to ensure their family marries the right way.
176 A strong Gaangalu rule is that you cannnot eat your totem. Ms Kemp’s family cannot eat scrub turkeys because it is their totem, or what they call yuri. They also cannot eat the native bee’s honey. Yuri is meat and not all Gaangalu people have yuri as a totem. Ms Kemp got her yuri from her dad. Her mother’s yuri was the tiny kangaroo, the pandemelon. All of Ms Kemp’s children has the scrub turkey and the native bee as their yuri. Although Ms Kemp’s Gaangalu name means porcupine woman, it is not her totem and she can eat them.
177 Elders have an important role within the Gaangalu community and their family. A Gaangalu person does not become an elder just because of their age. They become an Elder by knowing country, being out on country all of their life, knowing the sites and stories about countries, and knowing their laws and their ways. Ms Kemp considers herself to be an Elder in her family and within the Gaangalu community. Her father told her cousin that people have to go to her. She makes sure she passes on her knowledge. Gaangalu Elders have taught Ms Kemp Gaangalu ways and she will hand down her knowledge to her children, particularly Bankoo and Jack. She will teach her daughter Sarah about the women’s business. Her children have learnt from her and know about country. Ms Kemp is confident that her children will use and keep this knowledge and pass it down to the next generation.
An understanding of mythology, an understanding of spirits in the landscape and various funerary practices
178 Ms Kemp gave examples of various spiritual practices and beliefs, including:
(1) Two important ceremonies are smoking and being rubbed with porcupine fat. Sandalwood is used for smoking and is done at welcome to country ceremonies to keep the spirits calm and protect them when they are on country. Des Hamilton does a smoking ceremony at the Taroom walk re-enactment and when there is a death in a Gaangalu family. Ms Kemp and her siblings were smoked when they were kids, by their father. They were also rubbed with porcupine fat. Porcupine fat is used to rub on children not long after they are born or if they come back from country and they have not been rubbed. It is an important ceremony. The porcupine fat puts the smells of the country and the spirit into them so that they do not forget where their country is and that they are the owners of country. Once they have been rubbed, the country recognises them and they can come and go as they please. Ms Kemp has taught her daughter how to do this ceremony so that she can do it to her children and grandchildren. Ms Kemp said she felt a stronger connection with the children after they had been rubbed and can still feel them when they are away from her or country. It also protects them from bad spirits traveling through country. When they rub porcupine fat on the children, they are smoked at the same time. Ms Kemp does the smoking for the girls in her family.
(2) When there is death in the family, the body is smoked and Gaangalu people use white ochre on the body, chest or in the hair for mourning. They get the ochre from the Dawson River.
(3) When Ms Kemp goes over the bridge at the Dawson River, she calls and lets the spirits and old people know who she is and that she is coming over. She will also introduce herself when she goes onto strange country and never takes anything from that country so that she does not get bad luck. This is the same for Gaangalu country. When strangers are taken to Gaangalu country, Ms Kemp will call out to the ancestors and introduce them. If she does not introduce a stranger, they can get lost or injured. Ms Kemp once did not introduce some friends and they got lost, despite Ms Kemp knowing the country like the back of her hand.
(4) There are special stones called goori stones. Goori means spirit and a spirit is in some stones. Gaangalu people are given a spirit stone when they are old and strong enough to have one. Ms Kemp once took one and her father took it off her because the spirit was too strong for her. Her father had a goori stone and he gave her one when she was old enough. Ms Kemp has given her sons Bankoo and Jack goori stones. Before she gave them the stone, she told them the story of how it connected them to country and to her. Goori stones protect and guide the person, but can also be used to help with sickness.
(5) Because Ms Kemp is Gaangalu, she can use and access country without asking anyone to do so. For example, if she wants to take a porcupine, she will ask the old people to show her where it is. Ms Kemp will let ancestors know before taking and using things from country, but she does not have to ask because it is her country. Ms Kemp and her family get their rights in country through Maggie of Dingo. Maggie’s rights to country were handed down to Ms Kemp’s grandfather, to her father and then to her. No one can stop Ms Kemp from using and going on to country because it is her traditional land. Knowing, living on and visiting country keeps her strong and her spirit alive. Ms Kemp and her family have a connection to and talk for Maggie’s country. Gaangalu children have rights in country when they are born, through their family bloodline. Children cannot make decisions about country until they learn cultural and spiritual laws by watching and talking to their Elders.
(6) There are spirits in country. For example, Ms Kemp’s sister saw a hand come out of the sand where the old bridge used to be on the Dawson River. It is a spot where the old people used to dance before going out to St Lawrence for corroboree, but it was also a place where a lot of people were massacred. Aunty Ursula also told a story about bubbles in the water, which showed that there was something angry in the water that should not be there. Ms Kemp has walked over most of Gaangalu country and said there are parts of country where she has felt the spirit of the country strongly.
(7) There are special places on country, some of which people are not allowed to go to, and other places where you can sing out and talk to ancestors to tell them that you are there and make sure it is okay. Ms Kemp was told about these places by her father and other Gaangalu Elders. When they go walkabout into those special places, she can feel their old people there. When Ms Kemp takes her children and grandchildren on country, she talks to her father and other ancestors and tells them they are Gaangalu children.
(8) There are dangerous places on country. For example, Blackwater Creek, which has a Mundagadda painting, and a big water hold at Bluff where medicine men went when looking for someone.
(9) The scarred tree is a memory of Ms Kemp’s ancestors. If they touch the tree, they can feel the connection to their ancestors.
179 Some mythological spirit ancestors and stories include:
(1) The Djandjarri, who are little hairy men that smell bad. Ms Kemp’s father told her and her siblings stories about them, and said that the Djandajarri would get them if they went too far from home or camp.
(2) The Mundagadda lives on country where there is a big body of water. It is a Gaangalu guardian and they are connected to its spirit. Mundagadda travels down the Dawson River, the Mackenzie River, to other lagoons and along the rivers at the base of the Blackdown Tableland, and north and south along Mimosa Creek.
(3) Ms Kemp was told stories about the Tall Man. She said that one day a Tall Man chased her home in Duaringa.
(4) The Rainbow Fish is a fish that came about because the Mundagadda dropped some of his scales when checking on country. Ms Kemp says they do not eat that fish because of that story.
(5) Ms Kemp’s father told her that they can see any emu in the stars in the Milky Way. When you turn the emu around or look at it from another way, it becomes the tail of a kangaroo.
(6) The Clever Man is a magic man. He looks to “payback” someone who has done something wrong on someone else’s country.
(7) Birds like peewees, willy wagtails, curlews, magpies, kookabaurras and djewa, which is a spirit bird, bring messages. The djewa brings either good or bad news; for example, someone is having a baby, or there has been a death. The peewee is a fright bird for Ms Kemp’s family. The Curlew is a ghost bird and brings bad news. Kookaburras laugh in a special way when family are coming to visit or if someone is pregnant.
(8) Goori stones have a spirit in them and protect and guide those who hold them.
(9) When Ms Kemp started some paintings in Duaringa, an old spirit ancestor visited her and told her which painting to do, and that the other was too strong. Ms Kemp has been doing the paintings that the old spirit ancestor told her to paint. She was told by the spirits to do these paintings, and they are done in the style that the old spirit ancestor told her to do them in.
Responsibilities to manage and protect land and waters
180 Ms Kemp gave evidence that permission is required to enter and do things on Gaangalu country. People from another group that want to go onto Gaangalu country and use resources need to ask Gaangalu people for permission; for example if the Yiman want to hunt porcupine or take some wood. The Woorabinda people have asked Ms Kemp for permission to go hunting previously. If something is done on country without permission, they will find out. Ms Kemp tells people to stop or warns them that they should not be on country or do things on country without permission.
181 Ms Kemp must also ask Randolph Powder for permission to go onto his country. She will then introduce herself when on strange country and will try to have someone from that country with her. Randolph Powder is a Yetimarla man who has asked both Ms Kemp and Aunty Patsy for permission to take tourists and go hunting on Gaangalu country. Ms Kemp has always said yes to Randolph Powder because she knows that he will respect their country. Randolph Powder has also done cultural activities at the Dingo and Blackwater schools and asked for permission first. He knows the rule that he is not allowed to do such things without permission because he might get sick. Ms Kemp has also given mining companies permission to go onto country and mine but she knows it will never be the same once the mine closes.
182 Second, Ms Kemp can take things from country because she is Gaangalu but she can only take enough to use and she must make sure there is enough left for later. For example, she cannot take all of the gumbi gumbi leaves and strip the trees bare. She says that would be wrong.
183 Third, it is important for them to look after and protect their country. Doing cultural heritage walks is an important way of both looking after country and teaching the younger generation about country, particularly how to find and protect artefacts. It is the older generation’s responsibility to teach the next generation these things. The artefacts found on country show the ways of their old people. Ms Kemp also checks the creeks and wanders around the Mackenzie River and the Dawson River to check if they are okay. Ms Kemp is frightened about getting sick if anything bad happens to country. If the country gets wounded, she gets wounded.
184 Fourth, Ms Kemp has the right to use and access country because she is Gaangalu. Importantly, she can make decisions about country. Her children will also have the right to make decisions about country once they have learnt the cultural and spiritual laws from their Elders.
Customary use of natural resources and an understanding of sorcery and traditional healing
185 Ms Kemp remembers when she started to hunt, fish and learn how to find bush food on country when she started school in Blackwater. When she has taken children on family camping trips, she has shown them how to hunt and fish. All of Ms Kemp’s children have been smoked and taken out to country to hunt and camp. Ms Kemp’s children are familiar with country through her and her siblings.
186 Ms Kemp has the right to take and use things from country because she is Gaangalu, but she can only take and use what the old people have told her she can take. For example, she takes gumbi gumbi and quinine which are bush medicine. Gumbi gumbi leaves can be boiled in water and used to stop sickness and quinine can be used for rashes and sores. She can only take enough to use. Ms Kemp lets the ancestors know when she takes and uses things from country, such as ochre for a mourning ceremony or when hunting porcupine. She asks the old people to show her where things are, such as porcupines, but she does not have to ask anyone else because it is her country.
187 Another example of healing and sorcery includes blowing air on people to bless them. Ms Kemp blows air on her children to bless them. Uncle Jack Leisha, who is a medicine man, blew air on Ms Kemp’s eldest son’s joints to bless him. The blessing comes from their ancestors to the person being blessed through the person doing the blessing. Ms Kemp’s parents did this too. Her father told her that in the old days, the medicine man would suck out any poison from a sick person, pull a bone or a stone out of someone and they were healed. Ms Kemp’s father was known as a medicine man and people would call him when they were sick.
188 As a kid, Ms Kemp moved around on country and went camping. She went camping at Baralaba, the Mackenzie River, the Dawson River and the Comet River. They never took any food with them and would get water and food on the way. The rivers would feed them and they gathered food like fruit, bush apples, wild limes, bush bananas, wild oranges, wild passionfruit, wild limes, yams and witchetty grubs. They also ate the bottom part of green ants, which had a similar flavour to lime. The bush provided them with all the food they needed. They also gathered items such as yellow, white, purple and red ochre from country.
189 Hunting is an important part of Gaangalu culture. The women hunt and catch small game like porcupine, goanna and possum while the men hunt bigger game like kangaroos and emu. The men also hunt small animals and snakes. The men would cook any large game caught and would cook it under the ground. Women also caught ducks, turtles, scrub turkey and plain turkey. They went fishing in rivers and creeks such as Blackwater Creek, Mackenzie River, Dawson River, Comet River and Mimosa Creek. They caught fish using fishing line baited with grasshoppers, worms and other things like red meat. They caught freshwater perch, crawchies, eels, jewfish and silver perch. Different fish were caught in each river and creek. Fish were either cooked on the coals or covered with a mud-like paste and then put on the coals. They also caught short neck turtles and cooked them on the coals, and found mussels along Blackwater Creek and the Comet River.
190 Ms Kemp walked along the Dawson River and collected things like stones, feathers and wood to make things with. She has taken her granddaughter many times along that river to collect things. Ms Kemp has a strong connection to the Dawson River because she has fished and hunted there for most of her life. She also had an emu apple tree from which she would get fruit.
Recognition of gender specific and other significant sites
191 Ms Kemp’s father told her stories about how the earth would shake like jelly. They called it wobbly country. These wobbly country places are the places where the Mundagadda comes up out of the ground. There is wobbly country between Springsure and Blackwater.
192 Other significant sites and places include:
(1) Blackdown Tablelands, which is a national park. It has some old paintings around 5000 to 6000 years old and a men’s area. Ms Kemp is not allowed to go to the men’s areas or talk about them.
(2) One side of Blackwater Creek was where the “old fellas” used to go. There is a Mundagadda painting there and other rock art. It is a dangerous place.
(3) There is a dangerous place at the back of Bluff. There is a big water hole where Aboriginal people from other areas went to. They were travelling murris; people like medicine men who were looking for someone. They believed bad things happened there.
(4) Dawson River where Ms Kemp fished and hunted for most of her life.
193 Ms Kemp’s father also told her about certain caves that used to be burial sites. They are sacred. There are some caves in Blackdown Tablelands around Expedition Ranges. Her father told her that she cannot go to the western side of Blackdown Tablelands because there are caves there where the men went to do their business. Expedition Range is at the base of Blackdown Tableland. It has old paintings and is where the Mundagadda lives. Ms Kemp also goes to a place near Bauhinia where there are a lot of old stencil paintings in the caves.
An embodied relationship between people and their land and waters
194 Ms Kemp’s mother told her that straight after she was born they went back to Blackwater to live. Ms Kemp went to school in Blackwater. It was around that time that she began to learn how to hunt and fish. When her family moved close to town, they moved to Mount Morgan because the Toby mob and the Leisha mob lived there. Mount Morgan is Gaangalu country but is not Ms Kemp’s area. It is the Toby family’s area. Ms Kemp went to school in Mount Morgan. When she was living away from country, she would always go back to country to see family and go out on country to go camping and hunting. Her family grew up on Planet Downs, at the back of Blackdown Tablelands. That is also part of Gaangalu country. She was told by her father that her grandparents lived in a tin hut near Woorabinda. Growing up, Ms Kemp spent a lot of time with her father. He travelled a lot for work and worked on cattle properties on and off country. Her father spent most of his life living and working on country.
195 She has been living in Duaringa for some 20 years. It is part of Gaangalu country. She was told to go back home and to country by the spirits. All of Ms Kemp’s children have been smoked and taken out to country during their life. They have been hunting and camping. Her children are familiar with country through Ms Kemp and her siblings.
196 Ms Kemp knows about Gaangalu country and where it is. She was shown country, walked and ran on country from when she was young. Gaangalu country goes north to the Mackenzie River, east to the Dawson River, down to the Bigge Range and west to the Comet River. She was told this by the Elders, especially her father. The east side of Dawson River is part of Gaangalu country and it is the Toby’s side of country. The Toby’s speak for their area, and Ms Kemp cannot speak for them. Her connection is to the west of the Dawson. Neighbouring groups to Gaangalu country include the Garringbal people in the Carnarvon Gorge area and the Yetimarla people on the other side of the Mackenzie River.
197 Permission is required to enter or do things on Gaangalu country. Gaangalu people also have to ask for permission when they go on other groups’ country. Ms Kemp will sing out and introduce herself when she enters strange country. When Gaangalu people take strangers to country, they call out to the ancestors and introduce the strangers to them. If they do not do this, they can get lost or injured. Ms Kemp has introduced her children and grandchildren to country since they were babies. They know where they belong and they know where their home is. Gaangalu children are introduced to country at an early age. It is important to explain the surroundings to them, particularly so they do not go onto other country and do things without permission. Ms Kemp has also taken her children walkabout and she lets the old people know who they are. Ms Kemp continues to manage and protect country. She does this through cultural heritage walks and by teaching the next generation about country and how to find and protect artefacts.
198 Because she is Gaangalu, Ms Kemp can use and access country like she has been doing for her whole life. She does not have to ask anyone to use or take things from country because she is Gaangalu. In their own way, Gaangalu people will let the ancestors know when they are taking things from country. When camping, Ms Kemp and her family hunt, fish and gather food to eat from country. Her rights in country come from her Maggie of Dingo bloodline. Maggie of Dingo’s rights were handed down to Ms Kemp’s grandfather, father and then to her. Her ancestors were born and buried on country. Gaangalu country is her country, her children’s country and her grandchildren’s country. Her children have rights in country from birth through their bloodline.
199 Other ways the embodied relationship with land and waters manifests include:
(1) Spirits living in the country;
(2) Special places on country where the spirit of ancestors live;
(3) Talking to ancestors when on country to let them know you are there;
(4) Taking and using food and resources from the land; and
(5) Accessing country for camping, hunting, fishing, gathering and taking resources.
200 Ms Kemp also takes her grandchildren on country to teach them about country. She has taken her sister’s children, as well as her own children and grandchildren for walks to show them things like the scarred trees and artefacts, the flakes, the core stones and the old fireplaces. Ms Kemp was shown these places when she was young. There used to be a dance ring a long time ago, before the South Blackwater mine was established. When Ms Kemp does cultural heritage walks or walking with her grandchildren, she relives the stories her father told her. She tells them about cave paintings on the Blackdown Tablelands, shows them how to find bush food and how to use things on country, including gumbi gumbi leaves and quinine for sickness. Ms Kemp shows her grandchildren the scarred trees and tells them that the smaller scarred trees are used for coolamons. The scarred trees show their connection to country and how they do things on country, and is a memory of their ancestors. They can feel the connection to their ancestors when touching the tree and can hear them singing when they put their ear to the tree.
201 Ms Kemp has shown her children the grinding stones used to make the ochre. She has also shown her grandchildren some of the caves that their ancestors used to live in, an old campsite, and told them stories about the places her father took her and her siblings. She has taken the girls out and shown them how to find and grind ochre.
202 Mr Desmond Hamilton is 74 years old, was born at Woorabinda and resides in Moura.
A classificatory kinship system and intermarriage
203 Mr Hamilton is a Gaangalu man because of his descent from his great grandmother, Maggie of Dingo; his grandfather, Willie Kemp; and his mother, Florence Kemp. Mr Hamilton does not know his father but took his surname from Jimmy Hamilton, who was his mother’s partner. Jimmy Hamilton is a Wakka Wakka man. Mr Hamilton was told, by his mother and others, that as long as you are part of a Gaangalu family, you are a Gaangalu person. This can be either through a male or female line. For Mr Hamilton’s whole life he has grown up with and associated with other Gaangalu families. These include families like the Leishas, Kemps, Priestlys, Browns, Lawtons, Sandows and Whites. All of them know that they are Gaangalu. Gaangalu people know that close cousins should not get married or have a relationship. The Gaangalu elders get upset with anyone who does.
204 Patricia Leisha, Mr Hamilton’s mother’s cousin, shared her home with Mr Hamilton and his family to stay in when they moved to Blackwater. The house belonged to a Gaangalu man, Kruger White. He worked as a drover and allowed Gaangalu families to use his house. Mr Hamilton learned that sharing is a big part of the Gaangalu way of life and that refusing to share or offer accommodation to a family member is unacceptable. When Mr Hamilton started working on stations, he would go back to Blackwater and visit his extended family in Blackwater whenever he could.
An understanding of mythology, totemism, spirits in the landscape, various funerary practices and an understanding of sorcery and traditional healing
205 Mr Hamilton gave the following evidence:
(1) If someone does the wrong thing on country, they might get lost or someone close to them gets sick.
(2) The Blackland Tablelands is a special place with a lot of Gaangalu spirits. A spirit once showed itself to Mr Hamilton’s wife.
(3) Mr Hamilton’s family totem is the scrub turkey. He does not harm them and pays the utmost respect to scrub turkeys because they are his ancestors looking over him and his family.
(4) Most Gaangalu adults were taught about Clever Man. They have secret powers but do not let other people know about their powers. They are sometimes described as an assassin and usually do things for revenge.
(5) The Djewa is a sacred bird that is never seen. If it comes to a house and makes a croaky noise, it means a Gaangalu person has passed away.
(6) An important ritual is using the smoke of sandalwood leaves and twigs to cleanse and drive away bad spirits. Mr Hamilton does these rituals and is often called upon to do them for other Gaangalu people who are sick or experiencing strange unexplained things. Mr Hamilton also performs smoking ceremonies at funerals or in homes where bad things have happened.
(7) Gumbi gumbi leaves were collected and used for healing. The leaves can be boiled in water to create a medicine to ease stomach pains and other health problems. Some people wash themselves with the gumbi gumbi water to heal sores and skin problems.
Male and female rituals and initiation ceremonies and the recognition of gender specific sites and other significant sites
206 Mr Hamilton was shown places that had once been Bora grounds or special places for Gaangalu people, sometimes for men, women or both. He was told by older Gaangalu men that Bora grounds were still sometimes used for initiations. Mr Hamilton was also shown burial grounds and places where he cannot go.
A system of authority emphasising the role of senior people
207 Elders are older people in the group who have experience and wisdom and have earned the respect of the Gaangalu people and shown respect to the Gaangalu people over many years. Not every old person is an elder. There is no special process for being selected as an elder. Being an elder depends on the reputation and record of each individual. Mr Hamilton is now considered to be a Gaangalu elder. Elders hold authority within families and with the Gaangalu people as a group. They also enforce the rules about not marrying too close.
208 Elders are entitled to be respected and treated with respect. Mr Hamilton was taught to show elders respect, not to question their authority, not to disobey them and to assist them whenever possible. Children who intentionally or accidentally failed to show respect to elders would be punished severely. All Gaangalu children and adolescents know that showing respect is expected of them.
209 When Gaangalu families returned from weekend hunting trips, elders were the first to receive food that was hunted and shared. Sharing with elders is especially important when they are unable to hunt, gather, cook and fully look after themselves.
210 Aunty Patsy, Uncle Jack, Uncle Frank and other older Gaangalu people taught Mr Hamilton that towns like Woorabinda, Blackwater, Moura, Dingo and Mount Morgan were part of Gaangalu country. Growing up, Mr Hamilton was taken hunting and camping on country regularly. The old people taught him about bush tucker and how to find his way around, survive in the bush, how to track animals and where to find foods. Mr Hamilton, his uncles and older males of the family would walk together from Blackwater to hunt and gather food every weekend. Along the way, the older men told him about the country and particular places, plants and animals. They also taught boys like him how to track animals, tell which way the animals had gone, recognise where particular animals live and how to approach them without frightening them. The older men also pointed out places and things that are important to Gaangalu people. They showed Mr Hamilton scarred trees and places that had been Bora grounds, special places for Gaangalu people, burial grounds and places where he should not go.
211 Mr Hamilton was taught that in Gaangalu country, visitors should show respect to Gaangalu people by not doing or taking things without first speaking to a senior Gaangalu person. Similarly, when Mr Hamilton went camping and hunting with the old Gaangalu men from Blackwater, he was taught to only hunt and eat bush tucker on non-Gaangalu country with someone who belongs to that country. Gaangalu elders make major decisions for what should happen in relation to Gaangalu country. Elders do not need to be involved in simple everyday matters but they make the long-lasting decisions regarding things such as clearing land, diverting a creek or putting in a pipeline. Elders listen to the thoughts and opinions of other members of the group before making decisions and try to make decisions that are best in the long run for the group and country as a whole.
Responsibilities to manage and protect land and waters
212 If someone wants to do things that might seriously damage an area, the bush or the water, then the Gaangalu people would tell them. If someone went onto country and did things that damaged the country or went against Gaangalu customs, Gaangalu people would be unhappy and angry with the person doing the wrong thing.
Customary use of natural resources
213 When Mr Hamilton was on country droving cattle from Springsure to Moura, he caught, cooked, shared and ate bush tucker. He hunted and ate bush tucker, especially kangaroo, plain turkey and porcupine, when working on stations on Gaangalu country. However, because the scrub turkey is his family totem and is sacred, he does not eat them. He respects them because they are his ancestors looking over him. On weekend hunting trips, Mr Hamilton and other Gaangalu families hunted, cooked, and ate what was hunted and gathered. Everything was shared.
214 Growing up, Mr Hamilton was taken hunting and camping on country regularly when growing up in Blackwater. The old people would take him camping near a waterhole and the dogs would sniff for porcupine and goannas. Sometimes they would catch the odd wild pig. Mr Hamilton was taught by the old people about places, plants and animals. They would walk to hunt and gather food for the week. They lived off the land as did most other Gaangalu families. Their meals were made up of whatever they collected along the way, such as porcupine, kangaroo, fish, goanna, plain turkeys, eels, grubs, wild pigs and bullock. Mr Hamilton would hunt kangaroos with Uncle Jack. He was also taught how to hunt, kill and skin kangaroos and wallabies. They often caught fish in the Mackenzie River and the Dawson River, including catfish, jew fish and perch. Mussels were gathered from the banks and used as bait. They also looked for yams, berries, honey, blackberries and other foods in the bush. Mr Hamilton was taught to watch the birds to eat only the berries that the birds ate.
215 Other uses of natural resources include:
(1) Using the bark off scarred trees to make dishes and canoes.
(2) Using sandalwood leaves and twigs for smoking ceremonies.
(3) Collecting and using gumbi gumbi leaves for healing.
An embodied relationship between people and their land and waters
216 Mr Hamilton was told that he was a Gaangalu person and that Woorabinda was part of Gaangalu country. He cannot remember ever not knowing those things. He always understood that towns like Woorabinda, Blackwater, Moura, Dingo and Mount Morgan were part of Gaangalu country. Older Gaangalu men have pointed out important places on walks around Gaangalu country. Mr Hamilton has also met many people from nearby groups, such as the Karingbal people to the south near the Brown River and Rolleston, the Wakka Wakka people further south, the Bidjara people south-west and the Iman people south-east of Gaangalu country.
217 Gaangalu people are free to use the country and take things from the country, hunting, gathering and fishing for example, without asking for permission. When he is not on Gaangalu country, he only hunts and eats bush tucker in the presence of someone who belongs to that country. People who are not Gaangalu should not take things from country without asking permission. If someone does something wrong on country, they might get lost or someone close to them might get sick.
218 Mr Cedric White, commonly known as James White, is 75 years old and was born and resides in Rockhampton.
A classificatory kinship system and intermarriage, an understanding of totemism and intermarriage
219 Mr White is a Gaangalu man through his father Cedric White and because he is a descendant of Sandy of Wooroona. Mr White’s children and grandchildren, and their descendants, will be Gaangalu people. His father’s mother, Mabel Albury, was a Karingbal woman, and his father’s father, Prince White of Wooroona, was a Gaangalu man. Prince White of Wooroona was the son of Sandy of Wooroona. Mr White’s mother’s side is Iman, from her mother, and Wakka Wakka, from her father.
220 Mr White’s paternal grandfather and his brother lived on a camp on the Dawson River with members of the Leisha and Kemp family. Mr White lived at Mount Morgan from when he was five years old and remembers the Toby family, who are Gaangalu people, and other non-Gaangalu people on his mother’s side.
221 Mr White’s mother and father had seven children, and after his father died, his mother had three children with George Hassell. After this, Mr White and his mother and siblings moved to Rockhampton and lived with two aunties. Mr White has lived in Rockhampton with his family on and off during his lifetime. The camp where the White family was on the Dawson River is a special place because his grandparents, Duke and Prince White, lived there. Mr White is now married to Kathleen Eunice Frazer, a Wangan Jagalingou woman and they have four children, ten grandchildren and seven great grandchildren.
222 Mr White learned about his ancestry from his mother and father when he was growing up. It was important for him to know these connections. He was also taught by his parents and other old Gaangalu people that Gaangalu identity comes from ancestors who were Gaangalu on either the mother’s or father’s side. You are born as Gaangalu if you have a Gaangalu ancestor. When people’s parents belong to different groups, they can choose to belong to or identify with both groups. Mr White sometimes mentions his connections to other groups like Iman and Wakka so that an Aboriginal stranger can understand his background. He does not remember being taught about the various groups that Aboriginal people belong to but he knows the family and background of most of the people he was around.
223 Growing up, Mr White lived in a large house and Kruger White visited from Wooroona. He lived and grew up there and was always welcome. Sadie Kumbera also visited frequently. They had a lot of visitors from Mr White’s father’s family and his mother’s family. His parents never said “no” to someone who was part of the mob who needed a feed and a place to stay. Bringing up children, looking after family members and providing for old people are responsibilities shared across whole families, including aunties, uncles, cousins, grandparents and siblings. Mr White and his wife have taken on this role with their grandchildren and great grandchildren and other children outside of their immediate family.
224 Gaangalu people are free to marry anyone as long as the person is not someone who is close to them on their family tree and someone who does not share the same totem. When a non-Gaangalu person marries a Gaangalu person, they do not become Gaangalu but their children do.
225 Mr White’s totems are the freshwater turtle from his Iman mother and the owl from his Gaangalu father. He was taught by his parents not to harm or eat these animals. Both of these totems are passed from parent to child and Mr White’s children have both of his totems and will pass them on to their children.
An understanding of mythology and spirits in the landscape, male and female rituals and initiation ceremonies, various funerary practices and an understanding of sorcery and traditional healing
226 Mr White he was told about a place where the rainbow serpent, Mundagarra, lives. Mundagarra protects Gaangalu people and country. Mr White was taught to avoid places of this kind.
227 Mr White feels spirits and speaks to the spirits of the old people when he goes on country so that they can take care of him.
228 Smoking ceremonies are done to misbehaving children to cleanse out bad spirits, at someone’s house where people had died and after a funeral to send the spirit back to country. Mr White has seen a smoking ceremony performed by Sadie Comboora in Rockhampton.
229 When Mr White dies, he wants to be cremated and have his ashes put in the Dawson River so that he can go back to both his mother’s and father’s country.
A system of authority emphasising the role of senior people and responsibilities to manage and protect the land and waters
230 Mr White is the oldest living male descendent of Sandy of Wooroona and he considers himself to be a Gaangalu elder. Elders teach Gaangalu people about the country and their ways. Mr White was taught about the Gaangalu boundary by his mother, father and other older people and that they are Gaangalu from birth and inherit their identity and rights from Gaangalu ancestors. Gaangalu people also go to the elders to find out if their marriage is approved.
231 Showing respect for ancestors is related to the need to show respect to elders. Young people should not speak to elders unless they are invited to. They should speak respectfully and listen carefully and act with obedience. Younger people should not turn their back on elders, should share with old people, and allow them to take a seat or food before younger people. Some older members are recognised as elders because of their experience, common sense and fairness and are listened to and obeyed because they give guidance to the group. Elders of this kind are important when matters affect the whole community. They make decisions about anything that could have a long-lasting effect on the country or its people. It is only up to Gaangalu people to make decisions about Gaangalu land. Elders do not force their opinion on others but they are listened to and what they suggest is followed.
232 The traditional way to protect country was by burning off to spark new growth and control weeds. Another way is to do cultural heritage walks on country. Protecting country is a generational thing and it needs to be done for the next generation, as well as to protect country for the spirits to inhabit it after people pass away.
Customary use of natural resources
233 Mr White gave the following evidence that you only take what you need from country and sharing is a big part of Gaangalu culture. Mr White went hunting with family members around the Mackenzie and Comet Rivers for kangaroos, goannas, porcupines, witchetty grubs, possum and fish. They would catch perch, yellow belly and river cod in the rivers. However, it was important they did not eat their totems. Other items Gaangalu people gather from country are sandalwood for smoking ceremonies and gumbi gumbi which is used for colds, in winter as a preventative measure and for rashes and sores.
Recognition of gender specific and other significant sites
234 Mr White was told about a place on Mimosa Creek which was a burial site for old people. For Mr White’s family, the White family’s camp on the Dawson River is a special place because his grandparents lived there.
An embodied relationship between people and their land and waters
235 Mr White knows the Gaangalu boundary and what is and is not part of Gaangalu country from his mother, father and other older people. He was told that Gaangalu country went west to the Comet River, north to the Mackenzie River and east to the Dawson River. He was taught that Wooroona, Blackwater, Mount Morgan, Woorabinda, Baralaba, Biloela and Dingo were part of Gaangalu country, but not Rockhampton, Rolleston and Nebo. The Iman people are to the south of Gaangalu country and the Wulli Wulli are south east. Other groups near Gaangalu country are Garambul, Darumbal, Bidjara, Wangan, Jagalingou, Kanalou, Gurang and Wakka.
236 He was taught to show respect to his ancestors and his country whenever he is on country. He does this by shouting out to his ancestors and saying who he is and why he is there. This is the same for “Welcomes to Country”, which indicate the respect that should be shown by the traditional owners of the country to the visitors, and by visitors to the traditional owners of the country.
237 People who are not Gaangalu should not go onto Gaangalu country and take things without asking permission from Gaangalu people. Gaangalu people have the right to take things from country without asking permission from anyone. Mr White also expects people who are not Gaangalu to leave any discussion about Gaangalu country to Gaangalu people.
238 Mr White believes that when people pass away, their spirits go back to country. Smoking ceremonies are done to send spirits back to country. He has felt spirits. When Mr White goes on country, he speaks to the spirits of the Old People so that they will take care of him while he is there. When Mr White passes, he wants to be returned to country by having his ashes placed in the Dawson River.
239 Mr Paul Hegarty is 69 years old, was born in Cherbourg and resides in Rockhampton.
A classificatory kinship system and an understanding of totemism
240 Mr Hegarty is a Gaangalu person though his great grandmother, Jenny Lee Doctor. His mother, Merna Hegarty, was a Gaangalu person, and his grandmother, May Lee Doctor, was the daughter of Jenny Doctor, who is the family’s apical ancestor. Mr Hegarty’s father was Les Alberts. Mr Hegarty has two siblings, and has four children and 14 grandchildren.
241 Mr Hegarty claims his Gaangalu connection through his mother, grandmother and great grandmother. His children and grandchildren claim their Gaangalu connection through him. From a young age, Mr Hegarty’s mother told him he was Gaangalu. Gaangalu people have totems, which is a way of telling which family you are from. Mr Hegarty’s totem is the same as his grandmother’s, the kookaburra. It is custom that you cannot hurt or eat your totem.
242 Mr Hegarty’s mother knew a lot of Gaangalu people and other tribes recognised them as Gaangalu. He knew other Gaangalu families such as the Broomes, the Geegees, the Harrisons, the Tobys, and the Kemps. Mr Hegarty’s mother would tell him that they were his mob. His mother also took him to visit old granny Laura Geegee in Mount Isa, and other Gaangalu families in Woorabinda and Baralaba. Mr Hegarty’s young brother and sisters are the Whites because his father married Dulcie White, who was Gaangalu and a descendent of Duke or Prince White. Mr Hegarty was also looked after by his mother’s sister, Aunty Carmen Chapman, and he called her “mother”. Uncles and aunties could discipline children that were not their own. He calls Boxie Harrison his brother because they are Gaangalu countrymen and have known each other their whole lives, and calls Tim Kemp and Reg White his uncles because they are Gaangalu.
An understanding of mythology and funerary practices
243 When they are on country, they talk to the ancestors and tell them who they are and where they are from. Mr Hegarty also talks to the ancestor spirits, the earth, the trees and the wind. He talks to the country so it knows who he is. Artefacts cannot be taken from country. If they are removed, you or your family can get sick or have bad luck. The artefacts must be taken back. Before removing artefacts, Mr Hegarty will talk to the ground and say that he is moving them.
244 Other spirit ancestors and stores include:
(1) The Djandjarri which are little people, that are either good or bad. Sometimes they try to take you away.
(2) Using hair on the window sill to stop evil spirits from trying to come in.
(3) Birds are messengers. For example, the willy wagtail brings good news while the curlew brings bad news. The kookaburra is Mr Hegarty’s totem so when he sees one he knows news is coming.
(4) The Tall Man and the Clever Man. In cross examination, Mr Hegarty accepted that Clever Men were spirits and when asked whether people still “did that to each other” he said, “not to my knowledge”.
(5) Smoking is done at burials and at houses where someone has passed away to keep bad spirits away. Mr Hegarty has been smoked.
245 Mr Hegarty has had a spiritual experience with ancestors through dingoes. He followed them, played with them and rested with them. When he went to go home, he did not know where he was and they took him back home. He believes they were his ancestors playing with him and protecting him.
A system of authority emphasising the role of senior people
246 The Elders are the seniors who make the decisions. You have to consult them and they will have the final say but they listen to younger people. Respect for Gaangalu Elders is an important part of Gaangalu culture. Elders like his aunties and uncles brought them up and taught them about country, Gaangalu ways and how to hunt. Mr Hegarty showed respect when visiting old aunty Carmen by taking her some porcupine.
Responsibilities to manage and protect land and waters and an embodied relationship between people and their land and waters
247 Mr Hegarty lived and went to school in Baralaba. When he lived away from country, his mother took him back to country. He now lives in Rockhampton because it is closer to country. His mother told him stories about being Gaangalu and how people went hunting on country in Emerald, Blackwater, Blackdown Tablelands and Comet River. She also told him that Gaangalu country is around Blackwater and Emerald. Gaangalu country is south to Rolleston, north to the Mackenzie River and east to the Dawson River. Blackwater and Duaringa are central to Gaangalu and Blackdown Tablelands is on Gaangalu country. Mr Hegarty’s rights come from his mother and grandmother and he can go back on to their country whenever he wants.
248 There are rules about the east and west side of Gaangalu country, primarily that permission is required to enter country or you need to let Gaangalu people know where you are going. When you go to another group’s country, you tell them who you are and where you are from. Mr Hegarty also talks to the ancestor spirits. Permission is also required to hunt on another group’s country. They can only speak for their mob.
249 Mr Hegarty has the right through his mother to take and use things that are on country but he has to do it the proper way, by following Gaangalu rules and customs and talking to other Gaangalu people first. He cannot just take everything and leave nothing behind. People also cannot remove things from country as artefacts belong on and must stay on country. If an artefact is removed, that person or their family will get sick or have bad luck.
250 It is lore to care for country. Gaangalu people have to protect and look after it as the guardians of their country. Some Gaangalu people do cultural heritage walks to make sure the country is okay. Mr Hegarty’s mother took him on walks and taught him what to look for and showed him old camp sites and artefacts. The main reason for cultural heritage surveys is to protect and manage their artefacts that are found on country. They work with an anthropologist to mark where artefacts are located, so when mines are finished, any removed artefacts can be returned. Before removing artefacts, Mr Hegarty will talk to the ground and say that he is moving them. Up to six Gaangalu people can do the surveys at a time, including younger Gaangalu people so they can learn how to identify artefacts and look after country.
251 Gaangalu peoples’ embodied relationship also manifests through story places, spirits in country, special places on country and spirit ancestors and stories. First there is the big snake, Mundagadda, in Cherbourg. It travels on Gaangalu country and in the waterways. Second, there are spirits on country from when Gaangalu people passed away and returned to country. Third, Comet is a special place for Mr Hegarty because his grandmother was born there. His mother also told him that Blackdown Tablelands is a sacred area. In cross examination, he first said that Blackdown Tablelands is sacred because of the water and mountain but later agreed that it may have been because of Mundagadda creating the waterways through the mountains. Fourth, there are spirit ancestors and stories such as the Djandarri, the Tall Man, the Clever Man, birds sending messages, and Mr Hegarty’s ancestors manifesting themselves as dingoes.
252 Gaangalu people also do traditional activities on country, such as accessing country, fishing, taking resources, hunting, camping, cooking, and using water and fire. Mr Hegarty’s mother took him walking on country, fishing in the Dawson River, to the Mackenzie River and to country at Blackwater. His mother taught him about country and told him what not to eat. His mother’s brother were hunters and taught Mr Hegarty how to hunt and survive on country. They hunted porcupine, kangaroos and goannas. Mr Hegarty went fishing at the Dawson River, Comet River and Mackenzie River and caught jewfish, perch, catfish, eels, turtles and freshwater crayfish. He has also collected mussels from the banks of those rivers. When he caught a fish, he thanked the river and the fish. It important to not take too much food from one area. Water is used for drinking, cooking and blessing a new born or young child. Fire is used for cooking and for seeing and keeping warm at night. When camping, they used the wood from the Gidgee tree and the leaves were used for decorating dancers when doing traditional dancing.
Customary use of natural resources
253 Gaangalu people fish in the Dawson River. Examples of other resources used by Gaangalu people include gumbi gumbi for healing, gum leaves for cooking and making smoke when camping to keep insects away, and porcupine fat for cuts and rough skin.
254 Mr Rodney John Jarro is 67 years old, was born in Woorabinda and resides in The Gap.
A classificatory kinship system and an understanding of totemism
255 Mr Jarro is a Gaangalu man through his great great grandfather, Sandy of Wooroona, and his great great grandmother Nellie of Planet Downs. Mr Jarro’s mother, Christina Jarro, was a Gaangalu woman, and her mother was Rachel White. Rachel White was the daughter of Price White and Mabel Albury. Prince White’s father was Sandy of Wooroona, who is a Gaangalu apical ancestor. Mabel Albury was the daughter of Nellie of Planet Downs. Mr Jarro’s mother’s father was a Wakka Wakka man who had a de facto relationship with a Gaangalu woman. This Gaangalu woman was the daughter of two Gaangalu ancestors, Lizzie Tiger and Jimmy Blackwater. Mr Jarro’s father, Robert Bundle, was a Kaira/Kara Kara and Pitjara man.
256 Mr Jarro follows the bloodline of Prince White because he grew up in Woorabinda, formerly Wooroona, in Gaangalu country. He acknowledges his Karia/Kara Kara and Bidjara connections but feels more strongly connected to Gaangalu. You can only become Gaangalu by bloodline or by being “adopted” by a Gaangalu person, such as his step father who was a Gaangalu man. Mr Jarro and his wife Naree Huggins have three children and two grandchildren, and they claim their Gaangalu connection through him.
257 Mr Jarro’s parents told him of other Gaangalu families when he was growing up in Woorabinda. They told him that those families were his family. Some of these families included the Whites, Andersons, Malcoms, Oakleys and Tobys. When Mr Jarro was young, his mother left and his father looked after the children. Many other families helped raise the children and Mr Jarro and his siblings claimed those as their family. Mr Jarro calls his mother’s siblings “uncle” and his father’s mother’s brother’s “grandfather”. Cousins were classed and treated as brothers and sisters. Growing up, Mr Jarro listened to elders talk about people and where they came from. He also hunted and shared food.
An understanding of mythology and various funerary practices
258 When Mr Jarro sits down with the old people, particularly when they are close to passing, they want to go home to country. Mr Jarro believes that the Old People are calling them. Gaangalu peoples’ spirits go back to country when they pass away. When he goes to country, he speaks to the country and to the ancestors to acknowledge them. If he has his wife and children with him, he will let them know who they are. He also looks for signs and shows respect to the Old People.
259 Mr Jarro was told never to take rocks away from country because they had been put there by the Old People. There are things attached to country and there is a reason why they are there. The Old People will come to you at night and torment you if you do the wrong thing on country.
260 Mundagadda inhabits watercourses and starts at the head of Mimosa Creek at Blackdown Tableland and goes to the back of the hospital at Woorabinda. Mr Jarro’s sister was told not to swim in the Mundagadda place behind the Woorabinda hospital because the Mundagadda is there. Other special places on country include:
(1) Niagara Falls, which is a haunted place because an Aboriginal lady was murdered there. Mr Jarro says you cannot go into the water there because she would take you.
(2) Third Gully, which Gaangalu people are kept away from.
(3) Eight Mile, which is a spooky place. You cannot go there at night by yourself.
(4) Redbank, which is a taboo area. A few people were taken from there.
(5) Duke White Scrub, which is where Mr Jarro’s ancestor Duke White lived.
261 Gaangalu people have an obligation to protect their country and protect the footprints of where the old people have walked. They do this by attending cultural heritage surveys to protect artefacts as much as possible. Mr Jarro tells people attending these surveys that they need to talk to the ancestors when they pick up artefacts and tell them that they are there to protect and preserve Gaangalu culture and country. Once they say that, they will not be tormented by ancestors. They have keeping places all over country where artefacts are stored. When young Gaangalu people go out on country, Mr Jarro tells them what to do and makes sure they talk to the old people to keep them safe.
262 Examples of spirits and mythological stories include:
(1) The Tall Man that looks like a horse. It used to go through the community every winter.
(2) The Djandjarrdi which are little hairy men who roam around country and come out at night.
(3) The Mundagudda.
(4) Yuiniji which is a ghost or spirit.
(5) The Clever Man which is a real person who can see spirits. There are different types of Clever Man. Some do good like healing and some do bad like making people sick. Uncle Tom Purcell was a Clever Man and wanted to put Mr Jarro through the process of becoming one, like his grandfather had done. It is a sacred process.
(6) The Moroccan Man who has the reddest eyes.
(7) The Kadatchi which are either bad or good spirits.
(8) Birds are messengers. Owls are Mr Jarro’s totem and they look out for him and his family. When a single plover makes a special call, someone close to your family has died. Mr Jarro’s father used to see a crow all the time and after he passed, a crow followed them when traveling and it laughed like his father when Mr Jarro’s uncle said Mr Jarro’s father’s name.
263 Mr Jarro once found an abnormal stone that was a good luck stone sent from Carnarvon Gorge Area for Mr Jarro’s father. Duke White scrub was known as a haunted area but Mr Jarro felt safe there because Duke White was his family. This was the same for places like Niagara Falls and Redbank. Although they are taboo areas, Gaangalu people are safe. When you sleep at night, those Old People would visit you and press you into the pillow. Mr Jarro was told as a child that they could not sweep up or whistle after sunset, and to pick up your hair because you could get sick if it is found by the wrong person.
264 Gaangalu people perform smoking ceremonies using sandalwood from country. Des Hamilton, Gretchen Brown and Phillip Toby do these ceremonies. Smoking ceremonies are done when a child is misbehaving to cleanse them and keep them calm, to remove bad spirits from a house after a death and at some funerals. When people die, people are not supposed to say their name, wear their clothes or touch their belongings for at least 12 months. That is the mourning period. If you touch a deceased person’s belongings you get really sick. Mr Jarro tries to attend every funeral, especially when a Gaangalu person passes away, because it is important to show respect to that person and their family.
An understanding of totemism
265 Mr Jarro’s totem is the night owl from his mother and the curlew and the emu from his father. His children’s totem is the Gaangalu totem received through him. If Mr Jarro sees an owl, he knows that it is protecting him. It is a family member in spirit form. Other Gaangalu families also have the owl totem.
A system of authority emphasising the role of senior people
266 Elders are the people who have a lot of knowledge about Gaangalu country. There is no age to it. Gaangalu people have to respect the elders for their experiences and their knowledge. If an important decision needs to be made on country, each of the families would discuss their views but the decision would be made by the elders from those families. Gaangalu people show respect to the elders by not hanging around when they are talking, listening to what they say, taking their advice and seeking their guidance.
Responsibilities to manage and protect land and waters
267 Different families speak for different parts of Gaangalu country. Mr Jarro’s country is between the Dawson and the Comet Rivers. The Tobys do not talk for Woorabinda and Mr Jarro cannot speak for the Tobys’ country. If someone speaks for a place that is not their part of country, they get sick. If an important decision needs to be made on country, such as giving permission to open a coal mine, each of the families will discuss their views and the elders make the final decision. The families on the east side of Gaangalu country and the families on the west side will make decisions for their sides and the other side will support the decision.
268 Neighbouring groups also require permission to enter Gaangalu country. This is the same for Gaangalu people entering other groups’ country. Permission is also required to take things from Gaangalu country. Mr Jarro was told not to go to other people’s country and take things otherwise he would get sick or his family will have bad luck.
Intermarriage across regional society
269 There is a rule that people from the Sandy of Wooroona line should not get married or have a relationship. That would be too close. Mr Jarro’s father and his wife’s mother are first cousins so Mr Jarro’s marriage to his wife would have been too close if his father was his biological father.
An embodied relationship between people and their land and waters, customary use of natural resources and an understanding of sorcery and natural healing
270 Mr Jarro was born, grew up in and went to school in Woorabinda. His mother was born at Baralaba. Gaangalu country is from the Dawson River west to the Comet River and includes Woorabinda. Mr Jarro used to roam around the bush near Woorabinda and felt comfortable there. Gaangalu country also includes Comet, Duaringa, and Blackwater. Blackdown Tablelands is a gathering place and is where Mimosa Creek started, which runs through Woorabinda. Mr Jarro’s grandmother, Alice Malcolm, was from the Comet River. That was her home.
271 The country to the east of the Dawson is not Mr Jarro’s country. His mob lived on the west side. The people on the east of the Dawson River are still Gaangalu, and Mr Jarro’s mob were told that by Mona Barry (nee Toby). Different families speak for different parts of Gaangalu country, especially for the east and west side of Gaangalu country. Other neighbouring groups include Wadja to the south, Western Kangalou, Darumbal on the east and Wulli Wulli around the Theodore area. Permission is required to enter their country and for any neighbouring groups to enter Gaangalu country.
272 There are special places on country such as Niagara Falls, Third Gully, Eight Mile, Redbank and Duke White Scrub. There are also spirits on country such as the Tall Man, the Dandjarrdi, the Mundagadda and in areas like Duka White Scrub, Niagara Falls, and Redbank. Other spirit ancestor and stories include stories of the Yuinji, the Clever Man, the Tall Man, the Moroccan Man, the Kadatchi and birds.
273 When Mr Jarro talks to old people, particularly those who are close to passing, they want to go home to country. He believes the Old People are calling them. Old people’s spirits go back to country when they pass away. Mr Jarro tells people to talk to the ancestors when they pick up artefacts on country when doing cultural heritage surveys. Any artefacts removed are stored at keeping places on country.
274 Mr Jarro left Woorabinda in 1971 to work in Brisbane, where he met his wife. After getting married and having children, Mr Jarro took them back to visit families and connected them to country and their Gaangalu people. Mr Jarro always makes his way back to country and went home at every opportunity for celebrations, deaths or special occasions. He still does so.
275 Since Mr Jarro was young, he has accessed country as much as possible. He went camping and hunting with different Gaangalu families on the Woorabinda outskirts and right up to Niagara Falls. They would hunt kangaroos, goannas and possums. In particular, they hunted porcupine in winter and goanna in summer. An important rule for Gaangalu people when they hunt is that they only take what they need and they share what they hunted. They share fish, kangaroo and porcupine. Mr Jarro also went fishing on the Mimosa Creek and caught perch, catfish and eels using worms for bait. They also caught red claw, which are like prawns, from the dam and the swamp out the back of Woorabinda. Mimosa Creek was also a regular source of water for them. If the creek beds were dry, they would dig through the sand to find water to drink.
276 Mr Jarro also used to gather and take different bush foods from country like wild yams, split jacks, wild black berries and wild peaches. There was also a leaf from a particular tree that they used as soap for bathing. They also gathered various bush medicines. Gumbi gumbi leaves are boiled and the water is used for all sorts of healing. Quinine is used to rub on sores or its leaves can be boiled. Quinine resin is also used to make a hard glue. Grubs were mainly used as newborn medicine to rub on their gums to help with teething. Sandalwood was also gathered from country for smoking ceremonies for cleansing bad spirits.
277 When camping, they would make a fire for cooking and to keep warm. Different woods were used depending on the time of day. For example, bloodwood or hardwood were good for burning longer to last all night. Ironbark was used for nulla nullas. Cold charcoal was also then used to clean their teeth.
278 Mr Robert Toby is now deceased. He was born in Newcastle and resided in Rockhampton at the time of writing his affidavit.
A classificatory kinship system and a system of authority emphasising the role of senior people
279 Mr Robert Toby’s father was Robert Henry Toby and his grandfather was William Toby II. William Toby II was the son of William Toby I, who is a Gaangalu apical ancestor. William Toby I was married to Iman woman Lizzie Palmtree. Robert Henry Toby’s mother, Rose Lamb, was the daughter of Mary Anne Crook and she was Darumbal. Mr Robert Toby was married to Deanne Toby (nee Warcon) and they had two children and one grandchild.
280 Mr Robert Toby claimed his Gaangalu identity through his father back to William Toby I. Mr Robert Toby was Gaangalu from birth and his children and grandchildren are Gaangalu through him. He could also claim Darumbal through his grandmother Mary Anne Crook and Iman though his grandmother Lizzie Palmtree. His strongest connection was to Gaangalu because he grew up on Gaangalu country and learnt Gaangalu ways from his father, aunty, uncles and older cousins. Most things Mr Robert Toby knows about Gaangalu country have come from his father, grandfather, uncles, his father’s uncles and older cousins. He spent his childhood camping out on country with his father, uncles and aunties. They talked about places like Callide Valley, the Dawson Valley and Mount Morgan as being their country.
281 Mr Robert Toby had a traditional right to his country, to use and take resources and to look after country because he was connected to country. Mr Robert Toby’s father was born at Baralaba near Djandjarri stump. Mr Robert Toby’s siblings were also born on country. His family received right to country if they were born there and had blood connection to country. Cultural heritage is deeper than caring for country. It is also a form of cultural transmission, especially for the younger generation.
282 Gaangalu children are introduced to country and the Old People so that they know it is their country and that they are safe there. The Old People are Gaangalu ancestors who have passed away and their spirit returned to country. Mr Robert Toby’s father introduced babies to country using sand and water from places near where Mundagarra lives and rubbing the water on the kids. His father also did naming ceremonies with Mr Robert Toby’s children at the place where Mundagarra lives. His father smoked the children and used sand and water from the river on their body so that they knew their connection to water and the country.
283 Gaangalu cannot marry or have a relationship with someone with the same yuri as them. Mr Robert Toby’s family totem, the carpet snake, is from his grandfather William Toby I. Any of William Toby I’s descendants cannot marry, have a relationship with or have children with each other because the blood is too close. Even now they still check the connection of any potential partners.
284 Growing up, Mr Robert Toby’s cousins were treated like their own siblings. However, he referred to his older cousins as “aunty” or “uncle” because they were elders and he had learnt from them over his lifetime. The whole mob will help raise, teach and discipline children. If they went to see other Gaangalu families, they would always greet the elders first. They call those elders uncle and aunty but if they are older, Mr Robert Toby calls them “nan” or “granddad”. These elders have the right to discipline children from other families. When people visited Mr Robert Toby’s house, it was their obligation to make sure everyone was fed. Even when camping with other families all food was shared. The elders were fed first, then children and then adults.
285 Elders are important culturally. They are the teachers and the guardians of how Gaangalu people live. They will give direction on how to deal with issues and have an important role in decision making. As elders, men and women are equal when making cultural decisions with the family or the wider Gaangalu community. Gaangalu people will keep an eye on their elders and help when they can because it is respectful. Elders also made decisions and were involved in buying back Tiambi, which is one of the properties purchased by the Indigenous Land Corporation for Gaangalu people.
Inalienability of rights in land and waters
286 Mr Robert Toby’s evidence was that Gaangalu people have a traditional right to country and it cannot be traded.
An understanding of mythology, totemism and spirits in the landscape, various funerary practices, recognition of gender specific and other significant sites, intermarriage, an embodied relationship between people and their land and waters and an understanding of sorcery and traditional healing
287 Mr Robert Toby grew up and went to school in Mount Morgan. He grew up and had lived on Gaangalu country for most of his life and always returned to country when he left. Because Mr Robert Toby was Gaangalu from birth, he had a traditional right to his country, to use and take resources, to look after country and to regulate the access and use of Gaangalu country. The latter is a cultural obligation and is what the Old People require of them. He organised Gaangalu cultural heritage walks.
288 His knowledge of country came from his father, grandfather, uncles and older cousins. In particular, his father told him that Gaangalu country includes the Callide and Dawson Valley area, around Theodore, back up the Dawson Valley to Banana and the Callide Valley area and up into Mount Morgan. His father and Uncle Guv told him that they knew that they were on country where the waters flowed west into the Dawson River and all other creeks and rivers flowed southwest, except for the Dawson River.
289 Mr Robert Toby also acknowledged and recognised neighbouring groups, for example the Darumbal people in Rockhampton. Mr Robert Toby had rights in Darumbal country through his grandmother, Mary Anne Crook. However, he still let the Darumbal people know when he took things or did things on Darumbal country as a courtesy.
290 Mr Robert Toby explained various special places including:
(1) The Mount Morgan Range on the boundary between Gaangalu and Darumbal country, where Mundagadda rested before she went into Darumbal country.
(2) A place near Rannes, which is a massacre site where many of their people were killed.
(3) Cattle Creek, which runs into the Dee River outside of Mount Morgan. It is a crossover place into the spirit world. It is a dangerous place but if you are from Gaangalu, and you follow the safety rules, you can go there. Some rules include announcing yourself and not spitting on the ground. Mr Robert Toby also saw min min lights at Cattle Creek, which can draw you away.
(4) Axe Factory, which is a sacred place that should never be disturbed. It has traditional axe heads and natural wells. When Mr Robert Toby went there with his father and Aunty Heather, Yuinji came and that was a sign for them to leave.
(5) Mount Scoria, which is a story place that they call the talking place because it is where the Old People talk. There is thunder when the Old People in the sky talk. There are stories about the origin of the stars and the Big Man who walked across country creating mountains, ranges, hills and gorges.
(6) Uncle Tom’s Mountain, Mount Murchison, Wandoo Mountain, Piebald Mountain, Mount Scoria and Mount Morgan, which are the mountains that hold up the sky over Gaangalu country. They are also seeing mountains where Clever Men see out to country. Mount Morgan is also special because it is where many members of the Toby family were born, lived, worked and were buried. Wandoo Mountain is a physical and spiritual looking place that only initiated men can go. It is a strong spiritual place and if you go there, you can get sick or have bad luck.
(7) Bora Rings, which are where Gaangalu people used to have ceremonies. They are sacred sites because they were initiation grounds. There are Bora Rings near Biloela, on the southern side of Mount Scoria, and on the western side of Lake Charlotte.
(8) Lake Victoria, which is a massacre site. No children are allowed there and Gaangalu people do not swim there or visit there after dark.
(9) Banana Creek, which is where Gaangalu people marched from the Banana camp to native police on Banana Creek and were killed and buried where the native police kept the horses.
(10) Wura, which is near Piebald Mountain where Mr Robert Toby’s father’s sister was buried. Someone from the Tull family is also buried there.
(11) Tiambi, which is one of the three properties purchased by the Indigenous Land Corporation for the Gaangalu people. The others are Summerset and Mindano. The lands were purchased because senior people decided to get some land back and these places were close to important places. In 1997, the properties were purchased and a formal handover ceremony was done at Tiambi. They did a mass smoking, Woorabinda dancers performed and the young people sang songs.
291 Gaangalu people do not take anything from special places like Cattle Creek, Lake Victoria, Wandoo, Mount Scoria, Mount Murchison, Uncle Tom’s Mountain or Piebald Mountain. They are spiritual places or places of the dead. There are consequences if something is taken from those places. There are also special stones, like grinding stones, which should be left on country. If things like special stones are taken away, the Old People can cause the taker harm or trouble in their life. That is because Gaangalu ancestors’ spirits go back to country and the spirit is in the stone being taken away from where it belongs. Mr Robert Toby recalled a time when he and his family took some stones from Cattle Creek. His father smoked them and their house before returning the stones to deep water to lessen the influence and power of the Djandjarddis who were tormenting them for taking the stones.
292 Mr Robert Toby gave evidence about various spirit ancestors and stories including:
(1) Mundagarra, who is a spirit snake who created the waterways, plants and animals and brought life into country. She travelled from the south to Gaangalu country and then went to Darumbal. There is a deep waterhole close to Piebald Mountain where Mundagarra lives. She would sun herself on the mountain or be in the waterhole. Now she is in the rocks on top of the Mount Morgan range. Only people who are culturally “switched on” can see her.
(2) Yuinniji, who are mob that can cross over and appear in human form or travel in spirit form and smell like old horse sweat. They are on different places on country such as the Axe Factory. When you see or sense one, they are warning you that you are in the wrong place. If they touch you, you get sick.
(3) The Clever Man and Clever Men, who had certain powers. They could move things, make things disappear and do unusual things. They also used the seeing mountains to see things both with their eyes and spiritually. Some of them were also shapeshifters. Mr Robert Toby only knew of the crow and the black dingo as shapeshifters.
(4) There are certain spirits that if a Gaangalu person could overcome or master, they would get stronger. For example, Mr Robert Toby’s grandfather died of a lung disease and his father said that his grandfather went to meet the brown snake spirit but was unable to master it so the snake did something to his chest.
(5) When a dingo appears, it is a message from the Old People that something was not right in their mob.
(6) The Black Kangaroo, who is seven foot tall with a shimmering coat. When Mr Robert Toby’s son saw it out in the bush between Moura and Biloela, Mr Robert Toby believed it was the Old People checking on his son.
(7) Mr Robert Toby’s sister saw a huge white carpet snake at the back of the Banana Ranges and she saw it as a sign from the Old People to not go any further.
(8) The Djandjarris which are small hairy men. They are at Cattle Creek and draw your children away.
293 An important rule for Gaangalu people is that their children or young people are taken to country to introduce them to the Old People. The Old People and children need to know who they are. This is done by doing a smoking ceremony and putting water on the child or young person and rubbing sand on them. Another rule is that they introduce and welcome strangers to the Old People when traveling on country. Permission is required to enter Gaangalu country, especially by neighbouring groups. Mr Robert Toby’s father told him the story of how Gaangalu ancestors killed a lot of Iman people at Wandoo Mountain for being on country without permission. Mr Robert Toby talked to the Old People when he entered Gaangalu country and told them who was with him and for what purpose. Once Old People are aware, they are protected and will have a safe journey.
294 There are several old places on country where Gaangalu ancestors used to camp. For example, north of Baralaba, Biloela, Pennyroyal Creek, Box Flats and Banana. There are three main camp grounds in Mount Morgan itself. One is the pub on the corner of the highway and Morgan Street. The Old People are watching over that spot. The other camping sites at Mount Morgan are the sports ground, which is a camping ground and meeting place where their ancestors went to sing and dance, and near the entrance to the Mount Morgan mine. Other camping areas are a mountain ridge near Cattle Creek and the Baralaba camp, which was a meeting place for Gaangalu people in the west and east. Known walking tracks on country include Bouldercombe, Struck Oil, Razerback and the back of Cattle Creek. They are pathways between Darumbal and Gaangalu. Mr Robert Toby also participated in various traditional activities on country including accessing, living and camping, hunting, fishing, gathering, taking and using resources, sharing food, using water and fire, and teaching.
295 When conducting cultural heritage surveys on country, they might see and show the younger workers sandalwood used for smoking ceremonies, medicine plants, or where Mundagadda rested down in the creek. Smoking ceremonies are done for many reasons such as providing protection, purification, clearing anything bad that is around, to give a person strength if something bad has happened to them, or when children misbehave badly. Smoking is traditional healing. Another way of healing for Mr Robert Toby was going on and spending time on country. He went to Banana and Piebald Mountain. Further examples of sorcery and traditional healing include the “wait a while” leaves that are made into a paste to heal sores and ulcers, and the Clever Man who can heal people if they are sick and remove curses.
296 The Toby family’s totem is the carpet snake. Their totem is their yuri or meat. All Gaangalu on the east side have the carpet snake totem. Mr Robert Toby’s yuri came from his grandfather, William Toby I. Gaangalu people are not allowed to harm, kill or eat their yuri. If they did, they would get very sick or die. Gaangalu people also cannot marry or have a relationship with a person who has the same yuri because the blood is too close. Mr Robert Toby’s children know that their yuri is the carpet snake. Even now Gaangalu people still check the connection of potential partners to see how “blood close” they are to the other person.
297 When Gaangalu people passed away, they were wrapped in bark and buried in tree trunks or left in caves. There is a burial cave at Cattle Creek. They also do underground burials. Mr Robert Toby’s father was buried with his head facing the west because the sun would shine towards him in the morning and then shine towards the back of him in the afternoon. They sprinkled sand from where Mundagarra lives near Piebald Mountain over his coffin and laid Rosewood branches and cabbage palm trees on top. When burying his father, everyone at the site was being smoked and some ashes from the smoking were sprinkled over the grave site. Mr Robert Toby kept some of the ashes because his father’s spirit was in them. When Mr Robert Toby passed, he wanted to be buried like that on country too. Banana is a burial place.
Responsibilities to manage and protect land and waters
298 Mr Robert Toby was Gaangalu from birth and had the right to look after country because he was connected to country. One of his jobs was to organise cultural heritage walks and surveys for the east Gaangalu. Cultural heritage is deeper than caring for country, rather it is also a form of cultural transmission by taking their people and the younger generation through a cultural journey through the landscape. They might see and show the younger workers sandalwood used for smoking, medicine plants or where Mundagarra rested in the creek. It teaches cultural safety, too. It is their cultural responsibility to protect country.
299 Their primary method of managing their cultural heritage is by not removing artefacts. Those artefacts found on country were made and used by their ancestors and their spirits are in those artefacts. If they find anything like special stones, they leave it where it is on country if possible. However, if artefacts have to be moved because of development, the Gaangalu people talk to the Old People and tell them why they are removing the artefacts. If they do not talk to them, the Old People will torment them. Any removed artefacts are relocated to a keeping place on country. Part of managing their cultural heritage is that these artefacts will be returned to where they were taken. Another way Gaangalu people can manage and protect land is through the requirement of other people asking for permission to enter Gaangalu country, especially neighbouring groups.
300 Gaangalu people also manage their country physically by back burning. This makes new growth which brings in animals. Due to laws and permits about who can start a fire, they cannot do this anymore.
Customary use of natural resources
301 When hunting, the men are responsible for hunting big game like kangaroos. The women would hunt small game like porcupine, scrub turkey and plain turkey. They also collected scrub turkey eggs. Men are responsible for collecting firewood and cooking food like kangaroos under the ground. Women made sure that they had water for drinking and cooking and might prepare smaller game like the porcupine or goanna.
302 Mr Robert Toby’s father and Uncle Guv talked about country and things on country. They took him fishing and hunting at places like Moura, Doreen, Lindley’s Crossing and around Mount Morgan.
303 They always had access to their country. They lived in places at Baralaba, Biloela, Wowan, Banana and Theodore and stayed at stations and cotton farms where Mr Robert Toby’s father worked. No one tried to stop them from living on and accessing country. They went camping and his father made humpies by using trees and branches and later, tarps. Now they use tents.
304 They also went hunting, fishing and gathering for bush tucker. They hunted kangaroos, plain turkey, scrub turkeys and other animals. They only hunted what they needed for the family and did not leave any animal in distress. They went fishing at the Dawson River, Dam Number 7 on the Dee River, the Don River and other creeks and rivers. They caught eels, butterdew, black bream, yellow belly and perch using blood worms and mussels as bait. They cooked the fish in a mud oven or on the coals. They also collected mussels from the banks of rivers and creeks, and gathered emu apples, dogballs (which is like a prickly passionfruit), yams and scrub turkey eggs. When Mr Robert Toby’s family had people at their camp or house, it was their obligation to make sure everyone was fed. They shared all of their food. The elders were fed first, then children and then adults.
305 Water is used to drink, cook, and clean, and for swimming. It is also used as part of their ceremony and connection to country and to the spirit of Mundagarra. Water also defines Gaangalu country. Gaangalu people are known as fresh water Murris or the dusty foot mob.
306 They have always used fire. Fire is used for cooking, managing country by back burning, telling stories and to protect them from dangerous spirits like the Yuinji. Mr Robert Toby also stated that fire is a calming thing and reminded him of being on country with family. They also taught the younger generations, told stories and explained their family history sitting around the fire. Teaching is largely done on country. Cultural heritage surveys are used as a way to teach the younger generation about country. Before the younger generations were taken on country for surveys, Mr Robert Toby conducted a two-day cultural workshop and explained family connections, cultural safety, showed them maps and explained where their country is. He explained the difference between things they can and cannot see, and told them about talking to the ancestors before removing artefacts. Teaching is done over a lifetime and what is taught is based on how the younger generation use the knowledge they first acquire. Although Mr Robert Toby was a senior person with a good level of knowledge, he was still learning himself.
307 Gaangalu people gather and use resources outside of food including:
(1) White ochre found at Tiambi used for paintings and decorating dancers. Sap from bush orchard is mixed into the ochre to make paint.
(2) Kangaroo skins are used as canvases for paintings.
(3) Rosewood is a hard heavy wood used to make nulla nulla, spears, digging sticks or boomerangs. Rosewood branches were also used as part of Mr Robert Toby’s father’s burial ceremony.
(4) Lancewood is a soft wood used to make spearheads.
(5) Corkwood is a strong but light wood used to make shields.
(6) Soap tree leaves are used to make soap for bathing, especially when camping.
(7) The Curry Tree is a tree Mr Robert Toby had only found on Gaangalu country and he used it for cooking.
(8) “Wait a while” leaves are crushed and put into hot water to make a paste or gel that treats cuts, sores and ulcers.
(9) Reeds used for baskets and mats.
308 The main rule for taking and using resources is that Gaangalu people can only take enough for themselves or the family. However, Mr Robert Toby also traded resources with other groups. For example he has traded raw materials such as rosewood and brigalow for yellow ochre and a rosewood nulla nulla for a boomerang.
309 Ms Mona Barry is now deceased, but was born and resided in Woorabinda.
A classificatory kinship system
310 Ms Barry’s father was Bob Toby and her mother was Bella Cox. Ms Barry had no siblings. Her father told her that she was Gaangalu. Her Uncle Collie and Aunty Sarah were her father’s brother and sister and they lived in Woorabinda. Aunty Nellie Sheridan was Sarah’s daughter. Ms Barry’s grandmother was Rosie Williams. Ms Barry married John Joseph Barry and had three children.
An understanding of mythology
311 Ms Barry’s grandmother, Rosie Williams, taught her about places and spirits. For example, Gaangalu people are not allowed to swim at a Mundagarra place, the Jun Jadis, who are hairy men that chase kids, and the Tall Man who is a spirit man. Ms Barry told her children about the first two.
An embodied relationship between people and their land and waters and customary use of natural resources
312 Ms Barry was born at Woorabinda. She was told by her father that Gaangalu country is around Banana, the Dawson River and Moura. Her father used to live in a camp near Baralaba and he worked on stations in Wooroona and Gillmallie. Ms Barry was taught that she could not swim at the Mundagarra place.
313 As a child, Ms Barry was in a dormitory and the dormitory boss took her and other children fishing and camping. They caught jew fish, catfish, eels and sarotoga. She also went fishing at Mimosa Creek and her grandmother taught her how to fish. They caught perch and eels. People still fish there. Ms Barry and her husband and kids went camping over the weekend, went fishing and hunted goannas and porcupines. People also shot kangaroos and possums. Ms Barry also gathered blackberries and yams from the ground.
314 Ms Valerie Grace Hayes is now deceased, but had resided in Mount Morgan.
A classificatory kinship system
315 Ms Hayes was a senior Gaangalu person and elder. Ms Hayes’ great grandfather was William Toby I and her father told her that she was Gaangalu. Ms Hayes was born in and lived most of her life in her great grandfather’s country. Her father described their country generally as the Dawson and Callide Valleys. When Ms Hayes was a child, she travelled throughout Gaangalu country with her parents.
An understanding of mythology
316 Ms Hayes’ father taught her that it was necessary to talk to the spirits at certain places. For example, her father told her that they could not fish without asking permission from the water. She also helped organise the repatriation of skeletal remains from Scotland to Mount Morgan.
An embodied relationship between people and their land and waters and customary use of natural resources
317 Ms Hayes’ great grandfather, mother and father were born at Banana and Ms Hayes was born at Mount Morgan and had lived on her great grandfather’s country most of her life. Her father described their country generally as the Dawson and Callide Valleys.
318 Ms Hayes learned about her country when travelling, fishing and hunting on country. She fished in the Don, Dawson and Callide Rivers and other creeks and waterways. She caught jewfish, perch, yellow belly, turtles and other traditional foods. They hunted porcupine, kangaroo, turkey and emu. She was not allowed to eat emu because it was her mother’s totem. She collected bush fruits such as emu apple, wait a while, dogs balls, jacky apples, wild plums and pigweed thistle. She took and used bush medicine including wild arrowfruit, asthma weed, wild quinine, Cobbler’s peg and gumbi gumbi. Ms Hayes also collected ochre on the Dawson River near Baralaba and turtle, emu and turkey eggs.
319 Ms Lynette Ann Anderson is 60 years old and was born and resides in Rockhampton.
A classificatory kinship system
320 Ms Anderson’s father was Kamilaroi and her mother, Elizabeth Ann Mitchell (nee Mason), was Gaangalu. Ms Anderson is Gaangalu through her mother and acknowledges her Kamilaroi but does not put any claim that way. Ms Anderson gets her Gaangalu connection through her great grandmother, Annie Anderson. Ms Anderson’s maternal grandmother, Bessie Williams, was Bidjara and her grandfather, Mosie Mason, who was Gaangalu. Mosie Mason was the son of Annie Anderson, who was Gaangalu. The Kemps family took in Mosie Mason and his brother but Mosie ended up living and travelling with his uncle, Claude Anderson. Claude Anderson was Gaangalu too. They are Dawson River people.
321 Great aunties and even distant older people were called nanna and granddad. Anyone from the next generation up were uncle and aunty, even if they were cousins. Ms Anderson called her cousins her brothers and sisters and her aunty and uncles are like her parents. They could discipline her and treat her like their own. Ms Anderson’s sister’s grandchildren are like her grandchildren and the opposite is true. There are also matriarchs and the “go to” people in each family and a lot of sharing between the family members. Previously, everyone had a role and responsibilities. Obligations are still passed down. For example, Gaangalu people still have to look after their uncles and aunties and the senior people.
An understanding of mythology
322 When Ms Anderson went on country, she would cooee to the spirits and her mob out there. She would never take anything from country because the spirits would follow her home. The ancestors created those areas on country for a reason and the spirits put things in place that people could use to eat and live. She always knew not to put kids on the grass or dirt after dark because the spirits would come for them, and you had to come in at night because the Djundjarri were there. Ms Anderson’s mother also told her about the Kadartchi man, who is a four-fingered murri.
A system of authority emphasising the role of senior people
323 The elders always eat first, especially when eating porcupine. No one else could eat until the old people had eaten. That was the traditional way and is still done today.
An embodied relationship between people and their land and waters
324 Ms Anderson’s great grandmother, Annie Anderson, lived around Duaringa and Mosie Mason, Claude Anderson and others lived on Coomooboolaroo. Ms Anderson’s mother told her that Old Grandfather was born on Coomooboolaroo. Mosie Mason used to camp at Perch Creek and catch yellow belly fish. Ms Anderson was also always told about how Mosie Mason and Claude Anderson walked from Duaringa to Perch Creek over to the Dawson River, but not over the Dawson. She was also told by her mother and grandfather that their country went all the way to Bauhinia. Ms Anderson was told that her family’s run was Duaringa to Perch Creek to Coomooboolaroo. Blackwater is outside of her family’s run.
325 Ms Anderson’s family visited the Tobys in Theodore, Baralaba and along the Dawson. The east side of the Dawson and Mount Morgan are the Tobys’ country but it is still Gaangalu country. The Tobys are also connected to Baralaba. Ms Anderson will not speak for the Don and Dee Rivers, Mount Morgan or Theodore. Ms Anderson knows that the west of the Dawson River is her home, she can feel it. She and her family always strongly identified with the Dawson River area. They are Dawson River people but their strongest connection is to Coomooboolaroo.
326 Other areas that Ms Anderson noted include:
(1) The Dawson River which runs upwards, not downwards like other rivers.
(2) A mass grave at a swamp on the way from Woorabinda to Duaringa. Gaangalu people were buried there.
(3) The black camps at Duaringa where Ms Anderson’s family would stop to visit significant people.
327 When Ms Anderson was young, her mother once cut the tail off a freshly killed kangaroo to share with the family. Ms Anderson also took the intestines of a cow or porcupine to an old woman who lived on the banks of the Nogoa River.
328 When people feel like they are near the end of their life, they go back to country. Her mob would get buried at Coomooboolaroo, where they are most connected. Ms Anderson would cooee to the spirits and her mob when she visited country. When she is on country, she breathes in the air and her surroundings to breathe in the spirits. She would also not take things from country because the spirits would follow her home.
329 Mr Steven Raymond Kemp is 62 years old, was born in Mackay and resides in Woorabinda.
A classificatory kinship system, an understanding of totemism, intermarriage and a system of authority emphasising the role of senior people
330 Mr Kemp is a Gaangalu man through his great grandmother, Maggie of Dingo. His parents were Nita Smith and Tim Kemp. His father and grandfather, William Kemp, were Gaangalu men. William Kemp was the son of Maggie of Dingo. Mr Kemp’s paternal grandmother, Ada Mummins, was Garingbal. His mother, Nita Smit, is Yuwibara, but Mr Kemp follows his father’s Gaangalu line and claims his Gaangalu connection through his father.
331 Mr Kemp’s paternal grandfather, William Kemp, had the native bee totem. Gaangalu people take their totem from their mother, so Mr Kemp’s father, Tim Kemp, took his totem, the scrub turkey, from Ada Mummins. His totem is on his headstone. When Tim Kemp married Ada Mummins, Mr Kemp took his mother’s totem but she did not have one because she was a South Sea Islander. In her cultural ways, she was meant to speak to an eel about their totems. Mr Kemp took the eel totem. Gaangalu people cannot eat their totem or marry someone with the same totem.
332 Other Gaangalu families for their country are the Mickelos, Leishas, Freemans, some of the Richardsons, Andersons, Kemps, Goodas and Whites. Mr Kemp has known these families for most of his life, as well as the Tobys who his father had told him were from Banana. Mr Kemp also knows of some elders, including Thelma and Beryl Mooney, Reggie White and Ronnie White. Although Mr Kemp grew up off country in Mackay, he still respected the Yuwibara elders who are his mother’s people. In Woorabinda, he keeps an eye on the elders. He goes out on country and hunts emus, kangaroos and goannas and collects other bush foods to cook for the elders. Now that Mr Kemp’s father is gone, he is the elder and people go to him about anything cultural.
333 Mr Kemp’s father taught him Gaangalu language. His father spoke Gaangalu language reasonably well and often. In the 1970s, Mr Kemp started recording his father and the language and developed a dictionary with about 600 Gaangalu words. Mr Kemp now teaches language at the Woorabinda School. For example, gummi means grandmother, boogal means great grandmother, yuga is mother and yabbu is father (but an uncle can also be called yabbu). Cousins are called bungie but that can also mean brother in law, sister in law, cousin and father in law. Mr Kemp calls his first cousin, Campbell Leisha, his brother, and his father’s niece, Margaret Lawton, his sister. Her children call Mr Kemp uncle and their children call him granddad.
An understanding of mythology and various funerary practices
334 Old people go back to country to die if they can. Mr Kemp’s father went back to Woorabinda to die and was buried in Woorabinda. When his father died his spirit went back into country. The spirits of Gaangalu old people stay in the country. When Mr Kemp feels the presence of ancestors he talks to them. He also calls out to them for protection when he feels an evil presence or when he visits places like the Mundagarra place at Blackdown Tablelands.
335 When on country, you have to introduce yourself to the ancestors and tell them who you are, and who your parents are. This avoids disturbing them. Mr Kemp has lived in Woorabinda for most of his life so he does not introduce himself to the ancestors everyday but he will introduce himself if he goes to Blackdown Tablelands. You also have to introduce yourself when you are not on country to show respect. Mr Kemp spoke out to the ancestors when he visited Brisbane. He also introduces strangers to country so the ancestors know who they are and that they will not do any harm.
336 Mr Kemp’s father taught him that they need to ask permission to go on to other people’s country and other people should ask permission to enter Gaangalu country. If someone does not ask or does something bad, they can get sick or have bad luck. The ancestors have chased away people who entered Gaangalu country without asking. Mr Kemp can take and use things from country. Mr Kemp will also tell the spirits and ancestors when he takes a tree to make and sell items such as boomerangs and spears.
337 Mr Kemp’s father told him that the Mundagarra is the creator of everything on country. Munda means snake and garra means rainbow. Mundagarra started at the heads of rivers and pushed up land to make the rivers and creeks. He also gave everyone their totems. Mundagarra lives at different places such as the Blackdown Tablelands, Rainbow Falls and Niagara Falls. There is a lagoon at the top of Niagara Falls with artefacts and they are not allowed to go into the water because Mundagudda lives there. There are paintings of Mundagarra at Blackdown Tablelands and include prints of hand paintings. There are waterholes at Rainbow Falls and the third waterhole is where Mundagarra lives so they cannot swim there. There is also a dirt road near the Dawson Range before Duaringa which is a strong spiritual place for Gaangalu people. Mr Kemp’s father told him not to go there at night because Mundagarra is there. If he went there, he would have to call out to the ancestors.
338 Other spirit ancestors and stories include:
(1) The Tall Man who is a tall dark figure and usually has a big black dog with him. His path goes through Gaangalu country. Someone sends the Tall Man and if he finds them, that person will die.
(2) The Djandjarris are short hairy man. They are cheeky and hang around Redbank on the Mimosa Creek.
(3) When babies are born, you have to roll them around in the dirt and put soil on them. They also bring the afterbirth to country and put it in the Mimosa Creek.
(4) Mr Kemp carries a medicine bag with the hair of deceased relatives when he goes onto their country. He tells the ancestors that he is carrying it and it protects him.
339 Gaangalu people perform smoking ceremonies to remove spirits. Mr Kemp’s father taught him how to do smoking ceremonies and which trees and leaves to use. Sandalwood is used for smoking. Mr Kemp has smoked houses and people. Smoking is also done at funeral services at the graveside before the body is buried to remove any bad spirits before they are laid to rest. Mr Kemp’s father told him that traditionally their ancestors were buried in hollow trees and the tree hollow was smoked, or they were wrapped in bark and placed in caves which were then smoked. Burial practices differed depending on who the person was. For example, really important people like Elders and Clever Man would be wrapped in budjeroo bark cylinders and put into the rock of sacred places. Otherwise, everyday people would be wrapped in bark and placed into trees. There is a burial ground near Woorabinda where the bodies would be placed in trees.
340 Mr Kemp’s father told him that in the old days, if you did something bad the whole tribe would throw spears at you. If the offence was not that bad, one person would throw three spears.
Responsibilities to manage and protect land and waters
341 Mr Kemp’s father told him that they have to keep country clean and not throw rubbish on country. They should also respect other peoples’ country when they are on it and keep it clean when visiting. Permission is also required for people to enter Gaangalu country and Gaangalu people should ask for permission when entering other peoples’ country. If you enter country without asking you can get sick or have bad luck. If someone does not ask for permission, the ancestors may chase them away.
342 Mr Kemp can take things from country to sell but if he finds an old spear or axe head, he would not sell them because they were made by the ancestors. While he can take things like wood to make a boomerang or null nulla or take ochre for paint, he cannot take things like grinding stones, old axe heads or old artefacts to sell. However, they can be removed for educational purposes or to preserve them.
343 Mr Kemp still goes on country to visit and maintain sacred areas. He usually checks on Niagara Falls and Blackdown Tablelands because they are where Mundagarra lives and there are paintings there. There are also areas where their ancestors used to live with rocks used to sharpen spears and tools.
Customary use of natural resources and an understanding of sorcery and traditional healing
344 Before living in Woorabinda, Mr Kemp and his father went on country looking for bush medicine, and to go hunting, fishing and camping. He went hunting for porcupine at Five Mile and found a big ochre ground with different coloured ochre. Mr Kemp still regularly hunts kangaroos, emus and goannas and collects other bush foods to cook for the old Gaangalu people.
345 Gaangalu people use bark and wood for various purposes. First, Mr Kemp uses wood to make boomerangs and clap sticks. This cannot be done without a permit anymore. Second, sandalwood is used for smoking ceremonies. Third, bark is used to wrap the deceased for burials. Fourth, traditional tools are made from various trees. Traditional tools include:
(1) Nulla Nullas, which are made from budgeroo tree and are used for smashing emu heads or knocking goannas out of trees. Budgeroo trees were also used by the old people to make shelters.
(2) Boomerangs are made from wattle, acacia, rosewood and brigalow. Rosewood is the best wood and brigalow is the next best because they are hard and sharpen well. Mr Kemp watched his father make boomerangs and his father showed him the different shapes of boomerangs. Mr Kemp makes killer, normal and bird boomerangs.
(3) Spears are used for hunting and as weapons for killing. Lancewood is used to kill humans because it is poisonous. Rosewood is used for the tip of spears because it is hard wood. They also wrap the spear with kangaroo sinew from the tail. Blackboy resin is used for gluing the tip in.
346 Stone tools were also made and can be found on country. For example, stone axes were made and sharpened at Niagara Falls and Mr Kemp once found the perfect stone knife at Blackboy Creek that he believes was used at a close by birthday place.
347 Mr Kemp learnt how to make and use bush medicine from his father. First, he grows gumbi gumbi trees and they can be found at Coomooboolaroo, Duaringa, Adder Creek, the Dawson River and Bauhinia crossing and Woorabinda. Mr Kemp says that the medicine is stronger when it is from his own country. His father said that gumbi gumbi medicine tickles the immune system. It is boiled and drunk and can be used topically for rashes and dandruff. Second, Mr Kemp adds emu fat, goanna fat, lemon scented gum and other secret ingredients together to help with muscle pain. Third, kangaroo is a special medicine. Fourth, Mr Kemp swims in the Mimosa Creek to heal him. Other trees and plants that can be used as bush medicine include the quinine peach tree to cure sickness or when someone is immune to gumbi gumbi, the soap tree which makes a soap for bathing and the munda vine which is used to grow hair on your head. In addition to gathering bush medicine, they gather mussels from the Mackenzie River and ochre from Five Mile for making paint.
348 Mr Kemp also has a medicine bag that he takes on country with medicine and the hair of deceased relatives in it. It protects him. He also told his sick niece to put the medicine bag under her pillow and she got better. Other sorcery includes people getting sung or getting “pointed the bone” which is about dying. If a kangaroo arm bone wrapped with emu feathers and kangaroo fat is pointed at you, then you could die.
349 Mr Kemp and his father have visited and lived on country for all of their lives. They have the right to live on country. Mr Kemp has been camping on the northern boundary of the Mackenzie River, Duaringa, Eastbrook, Raby Creek, Coomooboolaroo, Wooroona, Mimosa Creek and Blackboy. They hunt animals such as kangaroo, emu, goannas, porcupine, plain turkey and possum. The quills and claws of porcupines are also used for jewellery. When Mr Kemp catches a porcupine, he thanks the ancestors. He uses porcupine and emu fat. When they hunt and kill animals, it is their rule that they use the entire animal and thank the ancestors. Mr Kemp has many animal skins and tans them the traditional way, the way his father taught him. He also goes fishing at different creeks and rivers and catches eels, yellow belly, sleepy cod, perch and barramundi. He has never eaten an eel because it is his totem. Mimosa Creek is good for fishing and freshwater turtles can be found in the Mimosa River.
350 Gaangalu people trade with mobs west of Gaangalu. They traded mostly wood, nulla nullas, ochre and medicine like gumbi gumbi. Mr Kemp does not barter the traditional way with resources now but they still exchange meat and food.
Recognition of gender specific and other significant sites
351 Mr Kemp gave the following evidence on the recognition of gender specific and other significant sites. There is a birthing place at Bore Four near Blackboy Creek where women would give birth. It is a very special place that only Gaangalu women can visit.
An embodied relationship between people and their land and waters
352 Mr Kemp’s father was a Gaangalu man born on country at Rosewood Scrub near Duaringa. He was on Wooroona Station and was never removed and sent to the mission. His sister was born on Pearl Creek. These places are on Gaangalu country.
353 Mr Kemp was born on his mother’s country in Mackay which was Juipera but is now Yuwibara. He lived in Mackay for 32 years and his father would take him to Gaangalu country to teach Gaangalu ways. Mr Kemp has lived in Woorabinda since 1991 and his father, who still lived in Mackay, would stay with Mr Kemp in Woorabinda for weeks or months.
354 The Gaangalu boundaries are over to the north, to the Mackenzie River, down to the three-ways (where the Dawson River meets the Mackenzie River and becomes the Fitzroy River), down to the Dawson River, down to the Fitzroy River and then back towards the south where Conciliation Creek joins onto the Comet River. Mr Kemp always thinks about Gaangalu country as being the Dawson River in the east, the Comet River in the west, the Mackenzie River to the north and Conciliation Creek to the south. Nothing over the Dawson River is their land or their mob.
355 East of the Dawson River is Gaangalu and the southern boundary is a shared boundary with other mobs. Neighbouring groups include the Western Kangoulu, the Garingbal, the Wanjigo and the Yetimarla mob across the Mackenzie River. Carnarvon Gorge is shared country and no one tribe owns it.
356 There are rules about country. First, Mr Kemp’s father told him about places on country where they needed to be careful. Niagara Falls is special because it is one of the places where the Mundagarra lives. They can visit but they cannot swim in the water. Bore Four is a special birthing place near Blackboy Creek that only Gaangalu women can visit. Second, Gaangalu people can take and use items from Gaangalu country such as wood to make and sell boomerangs, nulla nullas and spears, and ochre for painting. However, they cannot take artefacts to sell. Third, they have to keep country clean and can never throw rubbish on country. This is the same when visiting other peoples’ country. Fourth, you should introduce yourself and strangers to ancestors when on country so they know who you are.
357 Mr Kemp has rights to Gaangalu country and learnt about it from his family. Mr Kemp and his father went out to country and hunted, fished and camped. No one has ever stopped him or his father from going on to country. He still accesses country to check that everything is ok, especially at Niagara Falls and Blackdown Tablelands. People can get sick if they do not ask for permission to enter Gaangalu country.
358 There are special places on country. There is a big ochre ground with all sorts of coloured ochre and a Bora ring at Five Mile. The Lancewood Forest has sharp and poisonous wood. Mr Kemp was told not to go there during a storm because the storm will knock the trees over which can make you very sick. The Mundagarra places are where he lives and travels. These include Blackdown Tablelands, Niagara Falls, Mimosa Creek, Five Mile and Eight Mile. Blackdown Tablelands is a spiritual place and is important because of the paintings there. The paintings are on sandstone and are done with hand stencils. There are also burial areas on the southern side of Blackdown Tablelands. Five Mile and Eight Mile camps are important because they are where Gaangalu old people camped. Fourth, Bore Four is a women’s place where women give birth.
359 Gaangalu peoples’ embodied relationship with their country manifests in various ways, including:
(1) Their spirit returning to country when they pass away and calling out to ancestors when on country.
(2) Spirit ancestors and stories such as the Tall Man, Djandjarris, and Mundagurra who is the creator of country.
(3) Smoking ceremonies performed for burials to rid bad spirits.
(4) The use of bush medicine, natural healing and resources from country.
(5) Accessing country for the traditional purposes of camping, hunting, skinning and tanning, fishing and gathering. Gaangalu people also access country to make fire and to teach the next generation about Gaangalu country and culture. Mr Kemp used to teach kids at the Woorabinda School about Gaangalu country and took them out on country. He has also taught Gaangalu people about their country and language.
360 Ms Patricia Leisha is 73 years old, was born in Woorabinda and resides in North Rockhampton.
A classificatory kinship system
361 Ms Leisha is a Gaangalu woman through her great grandmother, Maggie of Dingo. Ms Leisha’s mother, Ursula Kemp, was a Gaangalu woman through her father, Willie Kemp. He was the son of Maggie of Dingo. Willie Kemp was married to Ada Mummins, who was a Garingbal woman. Ms Leisha’s father, Jack Leisha, was a Kullili man. To be Gaangalu, you need to have a Gaangalu ancestor. Ms Leisha and her sisters identify as Gaangalu through their mother because they were born and grew up in their mother’s country. Ms Leisha’s brothers follow the Kullili side.
362 Uncle Tim and Uncle Jack taught Ms Leisha that on their side, the people and families were Paddy Mickelo, Uncle Kruger White, the Tysons, the Bosens, the Murphys, the Kemps and the Malcoms. Uncle Kruger White’s father was Sandy of Wooroona. Uncle Sandy was the Gaangalu man. Ms Leisha’s father told her that Willie Kemp was Kruger White’s uncle.
363 Ms Leisha does not have children but she brought up her nieces and nephews, some of which call her Aunty, Nanna or Pat. She plays the role of a parent and she calls them her children. Ms Leisha’s cousins call her sister. On her mother’s side, she is supposed to call her aunties “mum”. Uncles and aunts treat and discipline you like their own. Ms Leisha’s family taught her that they do not turn away family and make room for them if they need someone to stay. Her family has always shared anything. Ms Leisha and her sisters were taught about the seven sisters. They are a cluster of stars in the sky and they are a family. There is a story that the seventh sister did something wrong and that you have to look after yourself and your family.
Inalienability of rights in land and waters
364 Ms Leisha gave evidence that Gaangalu people have rights in the country from birth but they cannot give those rights away or sell them.
An understanding of mythology and sorcery and traditional healing
365 Ms Leisha was told not to leave hair lying around because the spirits can “sing you” from your hair.
366 Ms Leisha thinks that her Uncle Jack Kemp was a Clever Man and was given special powers. He had a black stone that he could control without touching. Ms Leisha’s mother was given a stone by her father near Bauhinia Downs. The stone was a rain stone and it would float when it rained. It would either stop the rain or make the rain follow them.
367 Her cousin got sick in the Northern Territory. Gaangalu people wanted to smoke him but his mother thought that the only way to get him better was for him to return to the country where he got unwell.
368 Gumbi gumbi and log tobacco are bush medicines found on country.
An understanding of totemism and intermarriage
369 Ms Leisha gets her totem or yuri from her mother and tribe from her father. Her totem from her mother is the googabinge, the scrub turkey. They usually get their totem from their father. Grandfather Kemp’s totem was the native bee and Ada Kemp’s totem was the bush turkey.
370 Gaangalu people cannot marry their totem because the bloodlines are too close. If they do, something will happen to them or their children. People ask Ms Leisha whether they are related to a potential partner and she gives advice about who to be wary of.
Various funerary practices
371 There are burial cylinders near Comet Downs on the other side of Blackwater. Remains are wrapped in bark and put in rock shelters.
A system of authority emphasising the role of senior people
372 Elders are important to Gaangalu people. Ms Leisha’s elders were her father and her brother, Campbell. Being an elder is not about age. Instead, it is about knowledge and being trusted by others. The elders play an important role in decision making and are to be consulted and listened to. Ms Leisha is considered an elder now. She grew up knowing about Gaangalu culture. She gets invited to gatherings of elders and she performs Welcomes to Country. She tells younger Gaangalu people to not sit with the old people.
Responsibilities to manage and protect land and waters
373 Ms Leisha gave the following evidence on responsibilities to manage and protect land and waters. Visitors need permission to enter Gaangalu country. If you go onto other country, you talk to the traditional owners. Gaangalu people can say “no” to things happening on their country. Gaangalu people can use and take anything on their side of the Dawson River but not the other.
Customary use of natural resources
374 Bush medicine can be found on country. Gumbi gumbi is used as traditional medicine. Drinking boiled gumbi gumbi leaves fixes a cold and bathing in it helps sores. The peach leaf gumbi gumbi tree is good for hangovers and good for colds. Log tobacco is rubbed on bee stings. Clap sticks are made from sandalwood. They are mainly used for ceremonies. Ms Leisha uses the clap stick to help her say that is her country. Scar trees show that its wood was used. The wood may have been used for a coolamon as baskets or to carry babies or to cut out the sap for drinking to stop dehydration.
375 Ms Leisha also describes various traditional activities done on country. She has taken many of her nieces and nephews on country many times. They camped on country with just a blanket. She does not camp on the ground anymore but she has been camping with tents at the Mackenzie River and at Blackdown. The children would swim in a dam at Blackwater Creek while Ms Leisha would try to catch dinner in the creek. When Ms Leisha camped with her father, they fished and hunted. Her father caught kangaroos, goannas, porcupines and echidnas. It was taboo to eat emu. They also fished on the Mackenzie and Dawson Rivers and along the creeks. They caught perch, eels, yellow bellies and crawchies (yabbies). Ms Leisha also gathered and ate bush tucker. They used to eat the gum out of a gum tree, prickly pears, wait-a-whiles, bush bananas, blackberries and emu eggs and dug for yams.
376 Other traditional activities done on country are using water for everything, especially cooking and drinking, making a fire and teaching. Sitting around the campfire was an important time for sharing stories and learning about culture. Teaching about culture is not like a lecture. Gaangalu people learnt by listening and doing.
Recognition of gender specific and other significant sites
377 To the west of Blackdown Tablelands is a site on the west side. It is mainly for males; females can never go there. Ms Leisha has never been told what happens there and she does not ask about it.
An embodied relationship between people and their land and waters and inalienability of rights in land and waters
378 Ms Leisha was born in and lived at Woorabinda. She moved to Blackwater with her parents and lived there for around ten years. Ms Leisha identifies as Gaangalu through her mother’s bloodline and grew up on her mother’s country. She was taught about Gaangalu country from Aunty Elsie Sandow. Ms Leisha was taught that people are Gaangalu from birth from either their mother or father. Gaangalu people have rights in country from birth but they cannot give those rights away or sell them. Ms Leisha has the right to be on country, use resources and do everything she wants, as long as she respects her culture.
379 Jack Kemp, Tim Kemp and Aunt Elsie told her that Gaangalu country runs between the three rivers, the Comet, Mackenzie and Dawson Rivers. Between the rivers it goes as far as Sorrel Hill, comes down south of the Mackenzie, then west of the Dawson and south of the Bigge Range. They told her that their mother, Ada Kemp, said it was “Grannie Maggie’s country”. Woorabinda is their country. Wooroona Station is also part of Gaangalu country. However, anywhere east of the Dawson River is not Gaangalu country for Ms Leisha.
380 Neighbouring groups include the Yetimarla to the north east, the Barafa to the north, and the Garingbal to the south. Ms Leisha was not taught about the Darumbal people but they are east of the Mackenzie River. She was also not told about Western Kangoulu to the west of the Comet River. Other groups need permission to enter Gaangalu country or to use resources from their country. Gaangalu people also must ask for permission and talk to the traditional owners of other peoples’ country.
381 Gaangalu Old People are still on country. When they pass, their spirit goes to country to protect it. When Ms Leisha passes, she will go back to country and the younger people will be able to talk to her. Ms Leisha and her cousins saw fish falling from the sky in Blackwater. She believes it was spiritual and the Old People were bringing them food. When Ms Leisha goes on country, she talks to the country and call out to Gaangalu. She does this so that the Old People know who she is. She will also introduce herself when she goes over the Dawson River or onto other country so the Old People know that she is not from that place. The Old People from that country might worry when strangers go onto their country so she was taught that talking to them puts them at ease.
382 Ms Leisha gave evidence about the following story places and stories:
(1) Mundagudda is the creator of the land. Munda means snake and gudda means rainbow in Gaangalu. There is a spring at Coomooboolaroo that is never dry and Ms Leisha’s brother says that the Mundagudda lived there. Another Mundagudda place is Mimosa Falls.
(2) The big eel lives at Gudda Gummoo, which means Rainbow Falls. It is a water place and the big eel lives at the bottom of the falls. Children are warned that they would be caught by the big eel in the cave.
(3) Ms Leisha and her sisters were told the story about the seven sisters. They are a cluster of stars in the sky and symbolise the story of having to look after yourself and your family.
383 Other special places on country include:
(1) Blackdown Tablelands, which has a men’s site to the west, the yuinji and rock art.
(2) Blackwater Creek, which is a significant place. They went fishing there but knew not to go around the other side of the creek and to watch out for the old waggari, which means eel. The waggari is special because where there is water you, will find him.
(3) The lagoon at Woorabinda, which is a very sacred site for Gaangalu people.
(4) 5 Mile and 10 Mile are campsites outside of Woorabinda. They are important for Ms Leisha’s family because it is where Willie Kemp and Ada Mummins lived.
(5) Duaringa Aboriginal reserve was handed over by the State to the Gaangalu people.
384 Ms Leisha looks after country by going out and checking the country. She has done cultural work west of the Dawson and has seen a lot of changes in the country. She is often called to give advice about sites and artefacts. Cultural heritage work is important because it can protect their country. If Ms Leisha finds something on country and it needs to be removed to be protected, she talks to the ancestors and lets them know that she is taking it to protect it. Anything removed stays on country in a safe Keeping Place. If companies do not do the right thing, they will be punished by the Old People. Ms Leisha also does Welcomes to Country. When she does welcomes, she always says the same thing, “nali gangalu woogu yinda tilagoo migna yumba Gangalu murri”. In a spiritual way it means, “we, the Gaangalu, welcome you to the good homeland; Gaangalu People”.
385 Ms Leisha’s father pushed her towards learning about women’s business from female elders. She knows some of the Gaangalu dances and women’s dances. Women’s business is sacred knowledge and must be protected. Something bad will happen if it gets into the wrong hands. There are different dances for boys and girls. Boys do the welcome dance, like shake-a-leg, djewa and wura dance. The girls do a water dance that flicks water around the country. Ms Leisha was also taught that women do not play the digeridoo, instead they play the clapsticks or boomerangs.
386 Ms Leisha explains spirit ancestors and stories including:
(1) Djandjarris which are little hairy men. Some are good and some are bad. They sometimes lure children away. There are many djandjarris around Mount Morgan.
(2) Aunty Elsie talked about spirit dogs and three little white dogs. The old dog is a bigblack dog and he follows the old people or the children of old people and he is a good thing. He is good for Gaangalu people. The little white dogs are Granny Harriet Mummin’s spirit and they come to check on you. Granny Harriet Mummins owned three little white dogs.
(3) Djewah is their spirit bird and it brings good or bad news.
(4) Yuinji is a little spirit person and it is bad and evil. You should not follow the yuinji’s sound otherwise you are gone.
(5) The Tall Man walks around looking for something. Ms Leisha was told to walk in the opposite direction if she saw one.
(6) Ms Leisha once saw the min min lights outside of Mount Morgan near Razerback.
(7) Sky spirits can be seen from Gaangalu including the Milky Way, the emu and the kangaroo.
387 Smoking ceremonies are very important in Gaangalu culture. They cleanse people and places of bad spirits. Smoking can be for protection, cleansing or for blessings. Misbehaving children can also be smoked. Sandalwood from country is used for ceremonies. Ms Leisha’s father used to the do the smoking for them and her cousin, Des Hamilton, does the smoking now.
388 Gaangalu people access country and use resources as they want and need for camping, fishing, hunting, gathering and using water. They gather gumbi gumbi leaves and log tobacco for traditional healing and use sandalwood to make clapsticks. Scar trees are evidence that wood is used for various purposes. As a way of introducing Gaangalu babies to country and keeping them strong, porcupine fat is rubbed on them. Ms Leisha has also seen people use emu fat to bless babies. There are burial cylinders on the other side of Blackwater where remains are wrapped in bark and put in rock shelters.
389 Mr Colin Toby is 68 years old, was born in Mount Morgan and resides in Townsville.
A classificatory kinship system and an understanding of totemism
390 Mr Colin Toby’s mother was Phyllis Toby and his father was William Toby III. Non-Indigenous men acknowledge his father as “young Willie Toby” and knew both him and his father. William Toby III’s father was William Toby II and his grandfather was William Toby I. Mr Colin Toby is a Gaangalu man through his father’s line. His mother is Iman but he did not take after her. Mr Colin Toby’s father and uncles would tell him he was Gaangalu. Mr Colin Toby’s eldest brother is Gaangalu through William Toby III, even though he is not his biological son. He was brought up as a Toby and is Gaangalu. His children are also Gaangalu. Their family’s yuri is the carpet snake after William Toby III. They cannot kill a carpet snake.
391 Mr Colin Toby’s Uncle Bob had a daughter named Mona Toby who married John Barry. Mona Toby was William Toby III’s cousin but in Gaangalu way, she was his sister. Mr Colin Toby calls this “the blackfella way”. Mr Colin’s cousin’s grandchildren call him “pop” and his cousin, Neil Rebel, is his “brother”. Mr Colin Toby’s grandchildren call Neil Rebel “Uncle Choco” and see him as a brother. If Neil Rebel and Mr Colin Toby are together, the grandchildren call them both granddad. He also called his first cousins Aunty until they gave him permission to call them by their first names. Aunties and uncles discipline children as if they are your parents.
An understanding of mythology and spirits in the landscape, recognition of gender specific and other significant sites and an embodied relationship between people and their land and waters
392 Mr Colin Toby was born at Mount Morgan. Uncle Bob told him that the Dawson River and Callide Valley is their country. They know Gaangalu country is Mount Morgan range, Gogango Creek, out to Riverslea, down to Theodore, Castle Creek, Dawes Range, Callide Range and back to Mount Morgan range.
393 The Old People’s spirits are everywhere and in country. When people pass away, they return to country. When Mr Colin Toby is on country, he acknowledges the Old People and talks to them to let them know that he is visiting. He also introduces the younger generation to country and sometimes smokes them before going on country. He has told young kids about their culture and shown them artefacts on country. Mr Colin Toby says that it is his job to pass it on to them.
394 His father told him to never walk up Wandoo Mountain. There is a special waterhole up there and a lot of people were killed there because it was a looking place. Uncle Bob and Uncle Coli told Mr Colin Toby that he cannot stay at Lake Victoria after dark. Gaangalu People were rounded up, ran into the water and killed there. The Old People are still in the land and they do not know what the Old People are going to do to you under the water. Mr Colin will never swim at Lake Victoria.
395 Other significant sites and stories include:
(1) Mount Scoria which is important to Gaangalu people because it is part of the storyline for their country. It is where the carpet snake went. They can see Wandoo Mountain from there.
(2) The top of Wandoo Mountain which Mr Colin Toby will never walk on.
(3) A camping ground at Mount Morgan which is a Gaangalu women’s area. Women camped and had their babies there.
(4) Newman Oval which is the men’s area. It was used for ceremonies such as marriage or trades.
(5) Bald Mountain which is shaped like a snake. It is where the big snaked used to wrap itself around and sun himself. The big snake also made the water holes and creeks, particularly the creek from Mount Morgan to Dululu. That is their connection to country. They were always told to respect Bald Mountain but they cannot go swimming alone in the waterhole.
(6) A women’s birthing place at Eulogie near Dululu Range. Mr Colin Toby will not go there.
(7) Duaringa which is on the west side of the Dawson River. It is full of Djandjarri.
(8) There are min min lights on country including Cattle Creek and between Moura and Dululu.
396 Mr Colin Toby, his father and his uncle hunted at Eulogie. All of the families from Mount Morgan also picked cotton from the Dawson River, Callide Valley, Wowan, Dululu to Biolela. They also camped at Castle Creek and fished in the Don River.
Customary use of natural resources
397 Mr Colin Toby gave the following evidence on the customary use of natural resources. His father and Uncle Bob hunted in Eulogie for pigs and kangaroos. They kept the skins and made roo tail stew. When Mr Colin Toby was older, he camped near Castle Creek, fished in the Don River and collected freshwater mussels.
398 Ms Samantha Neilson is 35 years old, was born in Rockhampton and resides in Mackay.
A classificatory kinship system, an understanding of totemism, intermarriage and a system of authority emphasising the role of senior people
399 Ms Neilson is a Gaangalu person through her great grandfather, Claude Anderson. Her mother, Sharyn Anderson, is a Gaangalu woman. Sharyn took her Gaangalu connection from her father, Ms Neilson’s grandfather, Vernon Leslie Anderson. His father was Claude Anderson. Ms Neilson’s maternal grandmother, Josephine Law, was a Wulli Wulli woman. Ms Neilson’s father, Stanley Jarrett, is Gooreng Gooreng through his mother, Laura Booth, and Gumbanggir through his father. Ms Neilson went with her mother’s Gaangalu way because she feels a stronger connection to the culture and the land and because she spent a lot of time with her grandfather learning from him. Ms Neilson has four children and she has told them that they are Gaangalu through her.
400 Ms Neilson’s knowledge of Gaangalu ways and culture comes from her grandfather. He took her on country and sometimes spoke the language to her. He took her to work with him on several farms on country and showed her things like gumbi gumbi trees and porcupine tracks. He told her stories of when he was growing up, about his father being a translator between different tribes and that he would talk to the police. Non-Aboriginal people had a lot of respect for him. Ms Neilson’s grandfather told her that his father was the top elder and a leader. Ms Neilson has sought permission from a Yuwibarra elder before performing dances in Mackay.
401 Ms Neilson’s Gaangalu rights to country come from her great grandfather and no one can take her rights from her. Her grandfather also told her that their family totem is the emu. When they saw emus, her grandfather told her that they were the Old People. Emus remind Ms Neilson of her grandfather when she sees them now. He told her that they cannot eat emus or they would fall sick. They also cannot marry or have a relationship with another person with the same totem. That would mean you were marrying into your family line.
An understanding of mythology and of spirits in the landscape, various funerary practices and an embodied relationship between people and their land and waters
402 Ms Neilson grew up and went to school on country in Blackwater. She knew Blackwater was part of Gaangalu country and that it includes Blackdown Tablelands, Rainbow Falls, Blackwater, Baralaba, Woorabinda and Mount Morgan. Ms Neilson’s rights in country came from her great grandfather. She learnt Gaangalu ways from her grandfather and went on country with him many times. Her grandfather lived on country for most of his life and is buried in Theodore. He worked on country and when Ms Neilson went to work with him, he showed her gumbi gumbi and how to track porcupines.
403 Ms Neilson has made up several dances, and the ideas come from what she has learnt from her grandfather. She has a brolga dance which reflects a story she was told about three beautiful girls who had to stay home and look after the humpy. The dance symbolises a story where the girls were cleaning, sleeping, and looking after babies but they danced too much and half did their jobs and the Kadachi Man saw them and cast a spell to turn them into brolgas. She also has a dance for the Munthagarri about how he woke up from a deep sleep and searched for food and created the landscape. She has an emu dance, too. Ms Neilson teaches dancing to her daughters and she taught Indigenous dance as part of a Catholic School program.
404 When Gaangalu people pass away, their spirit goes back to country. For Ms Neilson’s family, they go back through their totem, the emu. Ms Neilson’s grandfather sends messages to her on his birthday and she talks to him and asks him for signs, which is usually a dragonfly. Everywhere Ms Neilson goes, she talks to the spirits and introduces herself to make sure she is safe. She also tells her children to introduce themselves to the spirits when they visit country so the ancestors know who they are. Ms Neilson lives on Yuwibarra country and has introduced herself to Yuqibara elders. Their ancestors are still present on their land and she feels safer when she lets them know that she is on their land.
405 Ms Neilson and her grandfather have accessed country for traditional purposes such as cleaning up, camping, taking bush food, hunting, cooking, fishing and teaching. People cannot take things from the land or something bad will happen to them. Items on country have a spiritual connection to the land. However, when Ms Neilson’s grandfather caught a porcupine, he sang to the ancestors and thanked them.
406 Ms Neilson discussed other spirit ancestors and stories including:
(1) The Clever Man which are bad spirits that wander around. They watch and stare at people. Gaangalu call them Clever Man or Kadachi Man or witch doctor. Bad things happen when they are around. When there was a Clever Man at the Dawson, Ms Neilson’s grandfather smoked her to protect her and make sure that the spirit would not attach to her.
(2) Munthagaddi which is the rainbow serpent. Some Gaangalu people call him Mundagadda. Munthagaddi is the creator of the land, waters creeks and rivers. He lives at Rainbow Falls.
(3) Djanddardi which takes misbehaving children away.
(4) The Tall man who comes to take someone away. The Tall Man is scared of water and does not like light.
407 Gaangalu people do smoking ceremonies at burials to let that spirit connect to the land. Everyone at a funeral is smoked to stop the attachment of the spirit to the people at the funeral. Men mostly do the smoking. Gaangalu people also do smoking ceremonies for children to bless them, to get rid of bad spirits and to protect the children as they grow. It is like being baptised. Ms Neilson has also had her house in Mackay smoked because she thought something was there and she was smoked on Gumbaynggirr country to prevent a bad spirit attaching to her.
Responsibilities to manage and protect land and waters
408 Ms Neilson knows that Gaangalu country is her country and one of her jobs is to the protect Gaangalu culture and country. When she and her grandfather went on country, they picked up rubbish and cleaned up. He said the rubbish made the land sick. Ms Neilson and her children still collect rubbish on country. When her grandfather caught a porcupine, he would tell the country and ancestors that he was only taking one to feed his family.
Customary use of natural resources and an understanding of sorcery and traditional healing
409 Ms Neilson’s grandfather took her on country to camp, hunt, fish, cook, gather and to teach. He took her camping along the Dawson River. Her grandfather hunted for himself and to provide for the family. He showed Ms Neilson how to identify animal tracks, like porcupine tracks, and faeces and to be able to track animals. When hunting, her grandfather used anything he could find around the area like sticks for digging and makeshift tools. He would take what he caught home and cook it for his family. They also used porcupine fat to put in their hair for dry scalp and sores on their head. It provides oil to heal the sores. While her grandfather took the boys out hunting, her mother would take the girls to get bush food like berries.
410 Her grandfather took her fishing in the Dawson River and made a fishing rod out of wood or bamboo. They used bread, mince, or dug for worms or mussel meat for bait. They caught black bream, eels and catfish. Her grandfather also gathered muscles from the banks of the Dawson River and either used them for bait or cooked them on the coals.
411 Ms Neilson learnt about different bush foods from her grandfather such as bush lemons, soap tree leaves to use as soap for bathing, gumbi gumbi to use for healing when they were sick or had a rash, and cactus balls.
412 Ms Neilson took her family on country and showed them Blackdown Tablelands and the places her grandfather took her. She tells her children stories about when she was growing up and hands down the knowledge she learnt from her grandfather.
Recognition of gender specific and other significant sites
413 Ms Neilson gave evidence that special places on country include Blackdown Tablelands and Rainbow Falls where the rainbow serpent lives.
414 Ms Priscilla Iles is 74 years old and was born and resides in Rockhampton.
A classificatory kinship system, intermarriage and various funerary practices
415 Ms Iles’ father, Cedric White, was the son of Prince White. Ms Iles’ father was a Gaangalu man from his father, Prince White. Her mother was an Iman woman. Her father told her that you follow your mother’s bloodline for country, but for language, you follow your father’s line. Her father was strict on bloodlines because it determines who you can marry. Ms Iles sought permission from her brother to talk about bloodlines to others. Ms Iles has a stronger connection to Iman because of her mother but she is still Gaangalu.
416 Ms Iles called Grandfather Prince and Grandfather Earl’s children her uncles and aunties and she called her grandfather’s brothers “grandfather” too. She calls her father’s nephews and nieces her uncles and aunties. Cousins are the same. These things made them aware of who they could marry. It is their duty to go to family funerals otherwise they will be punished. It is “sorry time” for them. Ms Iles has 12 months of mourning for the loss of her son.
417 Ms Iles knows other Gaangalu people and families such as Patsy Leisha, Aunty Edna Alley, the Kemps, Grandfather Kruger and his sister Connie White, Grandfather Duke White and his daughter Aunty Themla Mooney, Uncle Ronnie and the Dodds who are descendants of Biddy of Wooroonah. People name their children after their ancestors.
An understanding of mythology, a system of authority emphasising the role of senior people and responsibilities to manage and protect land and waters
418 Ms Iles gave evidence that she will not take rocks from Wooroonah or remove anything from sacred places. Her parents taught her to not remove anything from anywhere.
419 They cannot throw their hair around. If someone gets a piece of their hair, they can catch them. That usually means old Aboriginal men looking for younger women. They have to take their hair out of their brush and burn it. They do the same with toenails and fingernails. Djundjarris are little hairy men. Ms Iles’ father told her to be careful of the bush behind them in Rockhampton.
420 Ms Iles feels the spirituality at the Dawson River near Baralaba. It makes her feel like she is going home again and can feel the spirits there. If someone wants to go to Baralaba, they should ask for permission from the elders.
An understanding of totemism
421 Ms Iles gave evidence that her meat for Gaangalu is the scrub turkey. Different areas have different meats and she knows that the meat for Mount Morgan is carpet snake. Ms Iles does not call them totems, and instead calls them meat or yuri. Her yuri is the scrub turkey from her father and the freshwater turtle, from her Iman side. They cannot kill, touch or eat their meat.
422 Ms Lilian May Harrison is 68 years old, was born at Cherbourg Aboriginal settlement and resides in Michelton.
A classificatory kinship system and an understanding of totemism
423 Ms Harrison’s paternal grandfather is Jack Harrison Snr. Her family gets their Gaangalu connection from her father and grandfather.
424 Their totem is the mopoke owl. She gets her totem from her father and her grandfather. However, her father told her that you usually get your totem from your mother. The mopoke owl visits them to warn of some disaster or death about to happen in the family. They cannot eat the mopoke owl because it is their totem.
425 Grandfather Jack and his mother, Ms Harrison’s great grandmother Annie of Orion Downs, were Gaangalu. They were removed from Gaangalu country and put into Barambah Settlement in the Gaangalu camp. Ms Harrison’s father, uncles and aunties were born and raised in Cherbourg, Wakka Wakka country, but they were Gaangalu and known as Gaangalu by most people who lived there. Ms Harrison’s children and grandchildren know they are Gaangalu, what their totem is and about their grandfather and great grandfather.
426 Gaangalu people who lived in or close to Cherbourg were the Hegartys, Chermsides, Pitts, Jacobs, Harts, Weasels, Wests, Rileys, Malones, Harrisons, Broomes, the Williams family, Hopkins, Walkers, Kinas, Sheridans and the Douglas and Williams families. All of these families knew that they were Gaangalu people. Ms Harrison’s father called Aunty Sheila Chermside “sister” and she called him “brother”. This was the same with Aunty Colleen Douglas. Madolene Tysons grandchildren called Ms Harrion’s father and Aunty Madolene uncle and aunty. Her father also called the Walkers his cousins.
An understanding of mythology and spirits in the landscape and an embodied relationship between people and their land and waters
427 People are Gaangalu from birth. Ms Harrison believes that when people die they go back to Gaangalu country to where they belong. She was taught to speak to the Old People on country. Things cannot be taken off country because they belong there.
428 Ms Harrison learnt most things about Gaangalu culture and country by listening to her father, aunty and uncle. She and her father went to Woorabinda and she was happy when he was relieved to be there. His excitement started at Moura. Banana, Baralaba, Duaringa, Comet and Bluff are Gaangalu country.
429 Ms Harrison is more connected to and has stronger rights to the west of the Dawson River. She does not have the same rights in Mount Morgan. Ms Harrison’s father, uncle and aunty told her that her grandfather worked at Orion Downs Station, Meteor Downs Station and Mantaun Downs Station. They also talked about Gaangalu country including Duaringa, Dingo, Bluff, Emerald, Banana, Woorabinda, Comet, Blackwater, Theodore, Baralaba and Springsure.
430 Ms Harrison gave the evidence of spirits on country including:
(1) Mundaguddi who is the rainbow serpent and is their creator. It lives in deep waterholes and waterways. You avoid going to where the Mundaguddi lives and if someone disturbs the waterhole, the Mundaguddi can pull them in.
(2) Junjuddis which are small hairy men who like to play with and lure away children. They can be mischievous by taking and hiding things.
(3) Featherfoot who is sent for retribution if anyone breaks blackfella law by going on someone else’s country without permission or marrying the wrong way. Featherfoot is doused with animal fat and wears feathers around his head and wears shoes made of feathers so that he cannot be heard when he approaches someone or leaves.
(4) The Tall Man is an evil spirit who lurks around at night looking for someone. He wears a large hat and long trench coat and can take the form of other things like a dog.
431 Ms Harrison’s father used to smoke her when she was growing up. He also smoked them after a funeral. Their house was smoked if they thought any bad spirits were hanging around. Her father told her that his father also did this to his siblings in case bad spirits followed them home.
432 Birds are messengers. When the willywag tail goes to your place, it is a sign that a visitor will come shortly. The curlew is a death bird and if you hear its scream, it is a sign that someone close to you has died or is about to die.
433 When Ms Harrison is on country, she has strong and familiar feelings. She can feel the Gaangalu people from a long time ago. She introduces herself to them and tells them why she is there. She does this when she is on other peoples’ land as well. If she goes onto someone else’s country she asks permission to do something. Even though Ms Harrison is Gaangalu, she asks for permission to do things on Gaangalu country from the pastoralists. She believes she would get into trouble if she does the wrong thing whether she is on Gaangalu country or not. Her father told her not to step in front of people or spit on the ground. If someone did, the spirits and Djandjarris would get them. People also cannot take things from country or anything off the land. If someone does, spirits go to them in their dreams.
434 Ms Harrison recounts a spiritual experience she had on Gaangalu country at Blackwater Creek. She was doing a cultural salvage and she saw space with trees on both sides. It looked like big curtains on either side of a stage. She went closer to see what was behind the stage when she saw nine red kangaroos eating. There were old, young and baby kangaroos. Ms Harrison suddenly had a strong feeling of overwhelming grief and sadness and she began to cry. She believes the kangaroos were telling and showing her that this was where some of their old people were killed. She could feel them as if they were sitting there.
435 Ms Elizabeth May Jacobs is 80 years old, was born in Kingaroy and resides in Cherbourg.
A classificatory kinship system, intermarriage and a system of authority emphasising the role of senior people
436 Ms Jacobs was raised by her maternal grandparents, Mary Chermside (nee Jarro) and Jacob Chermside. Her grandmother told her that she was Gaangalu and her grandfather was Yirendali. Ms Jacobs’ father was Dunrobin. They raised Ms Jacobs because her mother went to work. Her grandmother taught her everything about Gaangalu. Elders like her grandmother told her that she was Gaangalu.
437 Gaangalu people share things across Gaangalu families. Families leave their house open for people to stay. Everyone is family. Ms Jacobs knew her grandmother’s mother and called her Granny Topsy and she calls Mary Jarro’s youngest sister Granny Alice. She calls her aunty “sister”, her uncles “father”, “dad”, and “pop”. Sometimes she called her grandfather “gnachi”. Granny Mary told Ms Jacobs that people married the wrong way if they were related.
An understanding of mythology, spirits in the landscape, totemism and of sorcery and traditional healing and an embodied relationship between people and their land
438 Ms Jacobs’ grandmother taught her about the special birds that welcome Gaangalu people to country and lull them back to country. She talks to the spirits and introduces herself by telling them who she is and why she is visiting them when she goes on country. She can feel their presence there. When Ms Jacobs goes to Blackwater, she feels at home and feels lighter. She has slept there when she was sick and woke up feeling good, like something was taken off of her. She has to take her shoes off there because her grandmother and great grandmother’s spirits are there. Ms Jacob’s spirit will go there when she passes away.
439 Ms Jacobs was told that there is a monster on top of Blackdown Tableland. The old people told her that a monster had created a big cut in the mountain. The cut is from the people trying to get the monster out. They told her not to go up there because children will be taken there. The Old People told her to be careful because Djandjarris play with children.
440 Granny Topsy referred to her daughter Mary as bunungung. Other Gaangalu people have always called Ms Jacobs and her family Gaangalu people and would sing out to them saying “Hey Gaangalu”. Jack Harrison’s son used to tell Ms Jacobs and her children that they all have the same blood and are the same and that they all live “over there”. Ms Jacob’s yuri is a ringtail possum. She got that yuri from her grandmother Mary. They cannot eat their yuri.
Customary use of natural resources
441 Ms Jacobs’ grandmother told her that they used to fish and walk around Blackdown Tablelands. Granny Topsy told Ms Jacobs about home, where they came from and how she went fishing with her daughter Mary. They used to smoke, wear a hat and go fishing a lot. They also ate kangaroo. Ms Jacobs used to go fishing with Granny Topsy near Barambah Creek and caught jewfish, turtles and eels.
442 Mr Peter Mickelo is 55 years old, was born in Cherbourg and resides in East Murgon.
A classificatory kinship system
443 Mr Mickelo’s father, Maurice Mickelo Snr and his mother, Beverly May Mickelo (nee Hegarty) were both Gaangalu. Mr Mickelo is Gaangalu and claims it from his father’s side. Mr Mickelo’s parents told him that he was Gaangalu and that they go back through their father’s blood to Blackwater and Duaringa as Gaangalu people.
444 Mr Mickelo’s grandfather, Stan Mickelo, was the son of Billy Mickelo. Stan Mickelo was born at Pearl Creek. Billy Mickelo was raised by a white family after his parents were killed. The name Mickelo was given to him because it sounds like the Aboriginal word for white man, Migaloo. He had two sons, Paddy and Stan and they were also raised by white people. Despite this, they still knew that they were Gaangalu because great grandfather Billy would tell them. Cherbourg was made up of different tribes but the Gaangalu people knew each other. Mr Mickelo’s father made it clear who was their people and who was not. Mr Mickelo knew of the following Gaangalu families growing up: the Jacobs, the Harrisons, the Broomes, the Kemps and the Whites. Uncle Paddy grew up with the Kemps and they called each other brother and sister.
445 Mr Mickelo has brought up his children like he was brought up by his father. He taught his children and grandchildren about hunting and fishing. They continue to pass that information down to the younger ones. His children now teach their own children the same things.
An understanding of mythology and responsibilities to manage and protect land and waters
446 When Mr Mickelo goes to Blackwater and Duaringa, he speaks to the ancestors and can feel the spirits on country. Once you pass away, your spirit goes back to Gaangalu country. People should not take things from country otherwise you get sick. Mr Mickelo has to look after country as a Gaangalu person. It is important from a spiritual and cultural point. They look after the land so that the land will look after them. He looks after the country for his father, grandfather and great grandfather. If they do not look after country, there will not be anything for them.
447 Mr Mickelo was told about Djandarris, who children will see if they are misbehaving, and Kadatchi men, who are bad spirits.
An embodied relationship between people and their land and waters
448 Gaangalu country includes Woorabinda, Duaringa, Blackwater and Emerald. His grandfather was born at Pearl Creek, which is Gaangalu country. Mr Mickelo has interests on both sides of the Dawson River because of where Billy Mickelo spent time. He knows the Gaangalu people who speak for the eastern side. Mr Mickelo has an obligation to look after country as a Gaangalu person.
449 His father taught him to hunt on their country. Mr Mickelo would not go hunting on another person’s country. They hunted kangaroo and caught fish and his father taught them how to clean and cook the fish and how to butcher the kangaroo. Mr Mickelo’s father took him camping a lot and taught him how to camp properly so that he would be equipped to live on the land.
450 It is necessary to begin consideration of a claim for a determination of native title by examination and consideration of the provisions of the NTA: Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward HC) at [16] and [25]; Members of the Yorta Yorta Aboriginal Community v Victoria; (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta) at [32]; Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 (Yarmirr HC) at [7].
451 The focal point of the Separate Questions is a determination under s 225 of the NTA of whether native title exists. That turns on the definition of “native title” in s 223(1) of the NTA.
452 Section 225 of the NTA provides:
225 Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non exclusive agricultural lease or a non exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non native title interests.
453 Section 223 of the NTA provides, relevantly for present purposes:
223 Native title
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
…
454 For a native title determination application to succeed, all of the elements in s 223(1) of the NTA must be “given effect”: Yorta Yorta at [33].
Traditional laws and customs as normative system of a society
455 The reference to the “traditional laws acknowledged, and the traditional customs observed” in s 223(1)(a) of the NTA refers to a body of norms or a normative system: Yorta Yorta at [39]. That reference obviates any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom. The High Court held at [42] that:
…the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.
456 The expression “normative content” means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society: Wyman at [455]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 (Harrington-Smith) at [996]. The inquiry is directed both to identifying practices that are regarded as socially acceptable, as well as looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community: no a priori assumption can or should be made that the only kinds of rights and interests referred to in paragraph (a) of s 223(1) of the NTA are rights and interests that were supported by some communally organised and enforced system of sanctions: Yarmirr HC at [16]. However, one needs to identify rules the breach of which attracts some form of social sanction (which may be disapproval, especially by elders): Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) (2010) 204 FCR 1; [2010] FCA 643.
457 While the acquisition of sovereignty did not prevent the common law recognition of native title, it did mean that the normative systems which then existed could not thereafter validly create new rights, duties or interests: Yorta Yorta at [43]. If the evidence shows the rules advanced by a native title applicant are rules developed in recent times by the current claim group, any rights said to arise under those rules will not meet the test stated in s 223 of the NTA: Yorta Yorta at [53]. Likewise, any newly created society or attempt to revive an older society, cannot establish rules that can create or sustain native title rights under s 223: Yorta Yorta at [47] and [160].
458 Those normative systems nonetheless retain relevance in determining the content of any continuing rights and interests and in making provision for their “transmission”. In this way, any native title rights and interests that are still recognised must find their origin in pre-sovereignty laws and customs: Yorta Yorta at [44].
459 The word “traditional” in s 223(1)(a) of the NTA is apt to refer to a means of transmission of law and custom. A traditional law or custom is one that has been passed from generation to generation of a society, usually by word of mouth and common practice. In the context of the NTA, “traditional” carries with it two other elements in its meaning. First, an understanding of the age of the traditions such that the origins are to be found in the normative rules of societies that existed before the assertion of sovereignty. Second, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and observed requires that the normative system is one which has had, “a continuous existence and vitality since sovereignty”. If the normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist, and any later attempt to revive in adherence to the tenets of the former system cannot and will not reconstitute the traditional laws out of which rights and interests must spring if they are to fall within the definition of native title: Yorta Yorta at [46]–[47].
460 The reference to rights and interests being possessed under traditional law and custom requires the normative system under which they arise to be a system that has had a continuous existence and vitality since sovereignty. Those matters can be understood only on the basis that laws and customs do not exist in a vacuum but are socially derivative and non-autonomous: that is, all laws are laws of a society or group. In this way, a “society” may be understood as the body of persons united in and by its acknowledgment and observance of a body of laws and customs: Yorta Yorta at [49].
461 The society inquiry is not an abstract anthropological question. Rather, in order to show that the claimed rights both continue to exist and have a pre-sovereignty origin, it is necessary for the applicant to prove both that there was (and is) a society sufficiently organised as to create and sustain rights and duties since pre-sovereignty times and to prove, “that presence on land was part of a functioning system”: Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 at 187 cited in Yorta Yorta at [116].
462 It follows that, if a society out of which the body of laws and customs arises ceases to exist as a group that acknowledges those laws and customs, the laws and customs will cease to have continued existence and vitality, and they will no longer support the previously existing rights and interests: Yorta Yorta at [50].
463 When a native title claim is made over a given area of land or waters, the focus is on whether any pre-sovereignty rights in that area have continued, and this directs attention to the nature of the social organisation of the persons whose laws and customs are said to have created and sustained these particular rights and interests. This is because, if these persons or their descendants, who constitute the society, have ceased to acknowledge the relevant laws and customs, the native title rights will not have continued to the present day. The analytical tool of “society” is one designed to draw attention to the need to establish continuity of observance in relation to the lands and waters of the claim area. In many cases, proof of this will “be very difficult”: Yorta Yorta at [52]–[53].
464 In Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135 (Alyawarr FC), the Full Court emphasised at [78] that “society” is not a word which appears in the NTA, is a conceptual tool for use in its application, and does not introduce technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”.
465 A native title claim group is defined by the traditional laws and customs that confer rights and interests on a group, and should be seen to have an existence independent of any determination application: Rita Augustine v State of Western Australia [2013] FCA 338 at [214]–[215]. A native title claim is likely to be fatally flawed if it arises from the anthropological investigative exercise underpinning the claim: Wyman at [544], Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108 (Wyman FC) at [405].
Interruption of acknowledgment and observance of traditional law and custom
466 The acknowledgment and observance of the traditional laws and customs, “must have continued substantially uninterrupted since sovereignty”: Yorta Yorta at [87].
467 Describing the consequences of interruption in acknowledgment and observance of traditional laws and customs as “abandonment” of native title is apt to mislead. “Abandonment” might be understood as suggesting that there has been some conscious decision to abandon the old ways, or to give up rights and interests in relation to the land or waters. The inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened: Yorta Yorta at [90].
468 Claimants may acknowledge and observe traditional laws and customs throughout periods during which they have not maintained a physical connection with the claim area. The length of the period during which claimants have not used or occupied the land may have an important bearing on whether the traditional laws and custom have been acknowledged and observed: De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 (De Rose (No 2) FC) at [62].
469 Evidence that the members of a claim group have faithfully performed their obligations under traditional laws and customs would provide evidence of observance and acknowledgment; lack of such evidence will be relevant but not necessarily fatal to a claim. It will be a matter of fact and degree as to whether the group has acknowledged and observed the traditional laws and customs on which it relies to establish the native title rights: De Rose (No 2) FC at [64]; Ward HC at [64].
470 It is necessary to examine the course of the claimant group’s observance of traditional customs and acknowledgment of traditional laws from sovereignty to the present, in order to determine if they are the same laws and customs at both times. A book-end approach constitutes an error which may hide revival, or not allow consideration of where there has been cessation or merely adaption of traditional laws and customs: Risk v Northern Territory of Australia (2007) 240 ALR 75; [2007] FCAFC 46 (Risk FC) at [82]. The continuity assessment cannot be done by merely examining the asserted laws and customs of the present day against those that existed at sovereignty.
Adaptation or alteration, continuity and its degree
471 Alterations and developments to traditional law and custom may not be fatal to satisfying the requirements of s 223(1)(a) of the NTA where they are “of a kind contemplated” by the traditional laws and customs: Yorta Yorta at [44].
472 Difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what changes or adaptations are significant. It would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given: Yorta Yorta at [82].
473 Demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests will not necessarily be fatal. Yet both change and interruption in exercise may, in a particular case, take on considerable significance. The key question is whether the law and custom can still be seen to be traditional law and traditional custom: Yorta Yorta at [83].
474 It cannot be stated more precisely than that the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interests in relation to the claimed land or waters: De Rose (No 2) FC at [63]–[64].
475 Ultimately, it is necessary to demonstrate that the contemporary normative system out of which the claimed rights and interests arise is the normative system of the society which existed at sovereignty, not a normative system rooted in some other, different society: Yorta Yorta at [89].
476 Evidence of the continuity of a society does not itself establish that laws and customs have been acknowledged and observed across the relevant period because traditional laws and customs can cease to exist even though a society continues. A focus solely upon whether the community or society has continued to exist may mask unacceptable change. The focus is on whether there has been continued acknowledgement and observance of traditional laws and customs: Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 (Bodney FC) at [74]; see also Wyman FC at [247].
477 So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional: Bodney FC at [74].
478 The Full Court in Wyman FC at [170] and [182] emphasised the necessity for a factual assessment of loss and continuity based on the evidence. The Full Court further observed at [176]-[177] and [182]-[186] that:
(1) A finding that any particular traditional law or traditional custom has been lost, fallen into disuse or abandoned will be relevant.
(2) However, some traditional laws and customs may be more important in this process of assessment and exercise of judgment than others.
(3) Loss or maintenance of customs like taboo on speaking the names of the dead remain relevant but may be relatively unimportant, including because they say little or nothing about possession or rights and interest in land.
(4) In spite of significant loss “a traditional normative society” or “normative system” may continue to exist because that system, “in material respects has not been lost, fallen into disuse or been abandoned”.
479 In Wyman FC, the Full Court observed at [179] that the loss of Dreaming stories may raise serious continuity questions, but regard must still be had to all the evidence to see if a traditional normative system has been maintained. In that instance, the loss of the pre-sovereignty tenure system, and its replacement with a new system, was a key discontinuity: Wyman FC at [297].
480 The loss or diminution of external manifestations of a pre-sovereignty society — including language, ceremony, men’s and/or women’s Law, Dreaming narratives, taboos and the like — will not necessarily demonstrate discontinuity, but will always raise serious questions as to whether or not the contemporary society is defined by old rules, or by new rules not rooted in the pre-sovereignty rule: Wyman FC at [289].
481 To be told about traditional customs, even those implying obligation, is not enough. To have visited places of traditional interest, when in the claim area for other reasons, is not enough. To have witnessed or participated in ceremonies, rituals and the like, many years ago, is not enough. Each of these circumstances and activities would be expected to be part of a living society, but they do not separately or in combination, constitute, or require the Court to infer the existence of a society: Sandy on behalf of the Yugara People v State of Queensland (No 2) (2015) 325 ALR 583; [2015] FCA 15 at [129].
482 It would perhaps be impossible to prove a continuing traditional normative system unless a claim group continued to share such concepts as communal interests in country and the inalienability of country. But, of themselves, they do not remove the need for claimants to prove a system of traditional laws and customs they adhere to and under which it is said rights and interests are possessed: Wyman FC at [290].
483 In Ashwin on behalf of the Wutha People v State of Western Australia (No 4) (2019) 369 ALR 1; [2019] FCA 308 (Ashwin) at [437] and [446], Bromberg J found that a group of witnesses, “had knowledge of and engaged in particular cultural activities such as camping, hunting and gathering”. However, he found tjukurrpa (a belief system which explains the shape and character of the landscape and underpins the connection which Aboriginal peoples have to the landscape and to each other in their sharing of it), was the basis of the relevant society’s connection to country, and that their evidence of acknowledgement and observance of the tjukurrpa, “failed to demonstrate the kind of substantial acknowledgement and observance of traditional laws and customs required to satisfy s 223(1)(a) of the NTA”.
484 Risk v Northern Territory of Australia [2006] FCA 404 is an example of circumstances where the Court concluded there was discontinuity of traditional law and custom. There were seven findings about interruptions and disturbances: ceremonial sites had not been used for some time and initiation ceremonies were not conducted in Darwin, at [814]; the practice of cicatrix marks as a form of tribal mark ceased, at [814]; while some burials were carried out at significant places, the evidence did not support a finding that the deceased were all or predominantly Larrakia and the burials were not carried out in a particular way to tie them to traditional Larrakia laws and customs, at [815]; practices whereby certain areas were taboo to women were not continuously observed, at [817]–[818]; there was insufficient evidence to reveal the passing on of knowledge of traditional laws and customs between generations, at [823]–[831]; distinctively Larrakia ceremonies were no longer practised and there was an attenuation of knowledge in relation to and in the observance of ceremonies, at [827]; and, decision-making now occurs by votes of participating family representatives and there was no evidence of a superior elder as in earlier times, at [832].
485 In Risk, Mansfield J also noted that the social structure was preserved (respect for and authority of elders) and there remained people who continued to identify themselves as Larrakia, at [814], [816], [825], [831]; hunting, fishing and foraging for food had continued as well as using bush foods as medicines and craft works, at [825]; there was evidence of Dreaming stories, though his Honour considered that the inconsistencies in the evidence and the lack of detailed knowledge of certain witnesses suggested that this was contemporary and not traditional, at [826] and [820].
486 Justice Mansfield concluded that there had been a substantial interruption in the practice of the traditional laws and customs of the Larrakia people, and that the present-day laws and customs were not simply an adaptation or evolution of the traditional laws and customs in response to economic, environmental and historical and other changes, at [835].
487 While it is useful to consider the reasoning in the last two cases mentioned, I recognise that the present case must be considered on its own facts.
Not all activity necessarily demonstrative of traditional rights
488 In Harrington-Smith, Lindgren J observed at [329]-[331] that not all evidence of modern activity is necessarily demonstrative of a traditional right:
[329] The evidence given had various degrees of relevance to the question of the current acknowledgment and observance of a body or system of laws and customs. Avoidance of the use of the names of deceased people, in-law avoidance, and not marrying people within certain skin groups, would be clearly illustrations of observance.
[330] But other conduct is equivocal. Examples are residence within a Claim area and hunting. Are these activities, when engaged in today, attributable to the exercise of a traditional right?
[331] I suggest that the answer is ‘not necessarily’ The point was made succinctly by Gleeson CJ in the following well-known passage from Mason v Tritton (1994) 34 NSWLR 572 at 574 (Mason):
Fishing is an activity which is so natural to people who occupy, or visit, coastal regions, that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.
489 Lindgren J also stated at [954]:
The question is what to make of all the evidence concerning hunting. I think it shows that there is a connection between claimants and the land in general of a kind and degree that non-Aboriginal people do not have, but it is not necessarily probative of a law or custom. It would be necessary to consider carefully the evidence given by each individual as to where he or she hunts, and why he or she hunts there.
Similar laws do not necessarily demonstrate a society
490 In Yorta Yorta at [49]–[50], the High Court referred to laws and customs defining “a particular society”. The Full Court in Sampi (on behalf of the Bardi and Jawi People) v Western Australia (2010) 266 ALR 537; [2010] FCAFC 26 (Sampi FC) considered the primary judge’s finding that the relevant groups, “had similar laws and customs, but they did not have a common or shared system. In other words, there were two systems of laws and customs with similarities, rather than one system of laws and customs”: Sampi FC per North and Mansfield JJ at [51]. That finding was overturned by a finding the groups were united in one system, but the proposition that similar systems are not necessarily demonstrative of one society was not doubted: at [66]-[67].
491 However, in Western Australia v Sebastian (2008) 173 FCR 1; [2008] FCAFC 65 it was observed at [84]:
There does not appear to be any prescription in Yorta Yorta … that all the same traditions and customs of each clan be observed and acknowledged by [each of them] for them to operate under the one normative system.
(Citations omitted, emphasis in original.)
492 In Sampi FC, it was accepted at [77] that, “the emic view is relevant to the determination whether the [relevant] people constituted a single society at sovereignty”.
493 It is necessary to the Court to assess whether the groups said to make up the posited society in fact shared the same laws and customs, rather than merely having similar laws and customs; and whether the lay evidence supports the societies posited by the experts.
494 There are two aspects of unity inherent in the concept of “society” understood since Yorta Yorta as the body of persons united in and by its acknowledgement and observance of a body of laws and customs: Yorta Yorta at [49].
495 First, social unity. As stated in Yorta Yorta at [50]:
To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.
496 Where the key members of the native title holding group, whose evidence is relied upon to prove the continuing traditional normative system, in effect do not know each other and do not share anything apart from descent from apical ancestors, these facts may reasonably and logically be called in aid of a submission and a finding that they, together, do not adhere to a traditional normative system; that they, together, are not a “society” defined by their shared acknowledgment of traditional laws and shared observance of traditional customs, as Yorta Yorta demands: Wyman FC at [408].
497 The second question concerns the extent to which they must be united by acknowledging and observing the same laws.
498 It is not necessary for a native title applicant to prove that, “every member of the claimant community or group has acknowledged and observed the relevant traditional laws and customs”: De Rose (No 2) FC at [58]. However, the fact that some persons within a claim group demonstrate some knowledge and awareness about matters of a traditional nature does not in every case mean that a traditional normative system will be found to exist: Wyman FC at [426].
499 In Ashwin, Bromberg J concluded that only a few members of the group demonstrated knowledge and observance of tjukurrpa, and the claimant failed to establish continuity: at [440] and [448].
500 As to the level at which assessment is to occur, continued recognition and observance is assessed at the level of the group as a whole, rather than each and every individual member of it; and what constitutes sufficient acknowledgement and recognition will be a question of fact and degree in each case: De Rose (No 2) FC at [58]; Narrier v State of Western Australia [2016] FCA 1519 (Narrier) at [825]; Ashwin at [270] and [439].
501 A body of people is not required to be “wholly united” in their acknowledgement of traditional law and custom to constitute a continuing society: Wyman FC at [248].
Connection/Interruption/Spiritual Connection
502 Bodney FC contains an important discussion of connection at [160]–[179]. Connection is not simply an incident of native title rights and interests. Connection is by laws and customs, not rights and interests: Bodney FC at [165]. The connection inquiry required by s 223(1)(b) of the NTA should not be fused or confused with the rights and interest inquiry under s 223(1)(a) of the NTA: Bodney FC at [165]; Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (2015) 325 ALR 213; [2015] FCA 9 at [71]; Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [1205].
503 The connection inquiry requires both identification of the content of the traditional laws and customs and the characterisation of the effect of those laws as constituting a connection of the people with the land. Where simple acknowledgement and observance of traditional law and custom maintains connection, the reason is that the laws and customs themselves characteristically will, in significant degree, presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships: Bodney FC at [169]; Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) at [352].
504 The connection inquiry also requires demonstration that, by their actions and acknowledgment, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs: Bodney FC at [171].
505 While a spiritual connection is not required, there will ordinarily be both a spiritual and physical connection: Gumana v Northern Territory of Australia (2005) 141 FCR 457; [2005] FCA 50 at [228].
506 Interruption in the use or enjoyment of rights may be significant. The exercise of native title rights constitutes evidence of both its existence and its content. It follows that the failure to exercise rights may (but does not necessarily) undermine a claim to its continued existence. However, it may be accepted that evidence that some persons who now claim rights, or some persons through whom they claim rights, have not exercised those rights does not inevitably answer the statutory question: Yorta Yorta at [84].
507 It may be possible where a claim group has been removed from “substantial parts” of its lands (as opposed to all of it) that this “does not necessarily mean” that the group has not substantially maintained connection with the land from which they have been excluded: Bodney FC at [172].
508 Connection may have subsisted at a spiritual and/or cultural level: see Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 at [38]; and for this reason such evidence as there may be of attempts to overcome the absence of physical presence on land that is claimed is of real importance: see Daniel (on behalf of the Ngarluma People) v State of Western Australia [2003] FCA 666 (Daniel) at [421].
509 Such evidence might be comprised by evidence of: visits to country; the carrying out of traditional ceremonies; the passing down of ritual knowledge; the teaching of mythological stories; and the retention of knowledge about boundaries between countries and language areas: Neowarra at [353].
510 While physical absence does not necessarily prove lack of connection, it is nevertheless evidence relevant to the issue of continuity: Wyman at [466].
511 The requirement of connection, “involves the continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and customs … which may be expressed by its physical presence there or otherwise”: Sampi at [1079]; Bodney FC at [174].
512 A connection inquiry can also have a topographic element. That a claim group has maintained connection to land by laws and customs for a part of a claim area does not mean that it has substantially maintained that connection to the whole claim area; it is a matter that must be specifically examined: Bodney FC at [166]–[167]. There may be questions of inference where there is evidence of connection to one or two areas but not to other parts of the claim area. Whether or not connection to an area will be accepted will depend upon the evidence in each case (such as “…ongoing visitation and the assertion of the relevant relationship to country”): Bodney FC at [175]–[179].
Communal, group or individual rights and the native title holding group (s 223(1) of the NTA)
513 In a given matter the existence, character and extent of native title rights and interests, whether communal, group, or individual, depend upon the traditional laws and customs of the community in question. All depends upon the content of those laws and customs: Bodney FC at [148]. Whether the relevant group held or holds communal title at a societal level or at some lower level, is a question of fact. The evidence must be capable of supporting an inference of the relevant ownership of native title rights and interests derived from the society’s laws and customs: Alyawarr FC at [80].
514 The proper inquiry, being not merely the question of what was the society whose laws and customs were observed, but also the question of whether those laws and customs supported an inference of communal title, will require a close analysis of the coherence of the “society” found (having regard to the area it occupied and the dispersal of its members), of the character of its laws and customs and of how those laws and customs allocated rights, interests and responsibilities across the lands and waters the subject of the claim: Bodney FC at [153].
The process of assessment of continuity: where to start?
515 The first step is to look at the classical laws and customs and then compare them with the contemporary laws and customs: Wyman FC at [173].
516 However, a book-end approach constitutes an error which may hide revival, or not allow consideration of where there has been cessation or merely adaption of traditional law and custom: Risk FC at [82]. In Starkey on behalf of the Kokatha People v State of South Australia (2018) 261 FCR 183; [2018] FCAFC 36, the Full Court cited with approval an approach starting with contemporary law and custom, although I do not understand the Full Court to suggest that is the only approach available.
517 Whatever the starting point, it remains necessary to make findings about the content of traditional law and custom, the content of the law and custom observed since sovereignty, and, critically, whether, through observance of traditional law and custom allowing for permissible adaption, the contemporary normative system remains substantially that which existed at sovereignty.
518 As to the existence, scope, content and continuation of native title, the applicant carries both an evidential onus and an ultimate onus, or burden, of proof: Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 at [114]; Daniel at [146].
519 Proof must be established at the civil standard, the balance of probabilities: s 140(1) of the Evidence Act 1995 (Cth).
520 The Court’s function is to make a decision and, in particular, to decide whether the party with the onus has shown the facts it contends for are more likely than not to have existed: Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [13]. The beneficial purposes of the NTA described in its Preamble do not affect the burden on applicants to prove their case on the balance of probabilities.
521 Evidence that proves the continuation of a traditional normative system must be adduced: Wyman FC at [290]. A question arises as to whether that onus has been met by a limited number of witnesses, or where only some witnesses give such evidence. In Harrington-Smith, Lindgren J observed at [959]–[960] that:
(1) where an individual gives evidence of their own activity, a question then arises whether it is appropriate to infer from the number of witnesses who give evidence of that kind that the claim group, on a fair overall view, engages in that activity; and
(2) where only some witnesses from a claim group testify in relation to a topic, it may be appropriate to draw a Jones v Dunkel (1959) 101 CLR 298 (Kitto J at 308) inference that other evidence would not have assisted the party.
522 In State of Western Australia v Willis on behalf of the Pilki People (2015) 239 FCR 175; [2015] FCAFC 186, Dowsett J took a similar view at [20] and [30].
523 In Jango, Sackville J observed at [449]:
If most witnesses gave evidence broadly compatible with the pleaded case, it perhaps would be open to disregard minority or idiosyncratic views or practices. But this is not the state of the evidence. It reflects such a variety of opinions, practices and assertions that it cannot be taken as establishing that the indigenous witnesses or members of the compensation claim group observed and acknowledged at the relevant times laws and customs … as pleaded[.]
524 In Ashwin, the claimant group was estimated to be over 280 persons but only 12 gave evidence. There was no evidence led as to why they should be regarded as representative. Justice Bromberg considered at [441]-[442] that no reliable inference was available from the status or family groups of witnesses as to the position of the claim group as a whole, especially where the quality of that evidence was mixed.
525 Given that there can be no direct evidence of some of the matters that must be established by native title claimants, proof will often require the drawing of inferences. In Yorta Yorta , it was observed at [80]:
It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.
526 As to the nature of inferences, Brennan and McHugh JJ observed in G v H (1994) 181 CLR 387; [1994] HCA 48 at 390:
An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.
527 After the conclusion of the evidence of the lay witnesses, the State filed a List of Matters Remaining in Contention. That document sets out the following table summarising the State’s position by reference to thirteen questions dealt with by the anthropologists in their Joint Experts’ Report:
TABLE OF JER MATTERS THAT REMAIN IN CONTENTION | ||
No. | JER Proposition | State’s position on Experts’ Response to JER Proposition |
Position at Effective Sovereignty | ||
1a. | Were there Aboriginal people in occupation of the Gaangalu claim area, or discrete parts of the area, as at effective sovereignty who were united in and by their acknowledgment and observance of a body of laws and customs? | Agreed in part, with reservation as to the area of Mount Morgan and Dee/Don River. |
1b. | If the answer to question 1(a) is “yes”, did those people constitute a society, or part of a larger or regional society, and what is the nature and extent of that society? | Agreed in part, with reservations as to: a) the area of Mount Morgan and Dee/Don River; b) The composition, membership requirements and extent of that regional society, including constituent groups. |
2. | If the answers to questions 1(a) or 1(b) were “yes”, what were the traditional laws and customs of the identified society, including any traditional laws and customs pertaining to rights and interests in relation to land and waters and the transmission of those rights and interests? | Agreed in part, save: a) the existence of the traditional law and custom listed at ASOAFI [49] is not agreed; and b) the nature and content of particular laws and customs, and rights and interests arising therefrom, remain in issue. |
3a. | Did any or all of the following people hold rights and interests in the Gaangalu claim areas under the traditional laws and customs identified at question 2? 1. Maggie of Dingo 2. Biddy of Wooroona 3. Sandy of Wooroona 4. Henry Williams of Duaringa 5. Jack (of Coomooboolaroo) 6. Billy Mickelo 7. Claude and Anne Anderson 8. Rose Ann Tyson 9. Biddy (wife of Jumbo) 10. Lizzy Tiger (Blackwater) 11. Blanche of Duaringa 12. Annie French 13. Polly Doctor 14. Annie of Orion Downs 15. Annie and Ned Duggan 16. Peter Tyson 17. Lily of the Mackenzie River Bend 18. John ‘Jack’ Bradley 19. Violet Thompson 20. Jenny Doctor [not daughter of Polly Doctor] 21. Polly McEvoy/Brown 22. Queenie (Hart) of Duaringa 23. (Brothers) Charlie, Willie and George Riley 24. Lily/Lilla Livingstone 25. William Toby 26. Nellie of Planet Downs 27. Myra Freeman 28. Sarah Dodd | The status of the following apical ancestors as holders of rights and interests in the claim area remains in issue: 1. Biddy of Wooroona (ASOAFI [14]); 2. Henry Williams of Duaringa (ASOAFI [16]); 3. Rose Ann Tyson (ASOAFI [20]); 4. Blanche of Duaringa (ASOAFI [23]); 5. Polly Doctor and her grandchildren (Brothers) Charlie, Willie and George Riley (ASOAFI [25]); 6. Annie of Orion Downs (ASOAFI [26]); 7. Peter Tyson (ASOAFI [27]); 8. Lily of Mackenzie River Bend (ASOAFI [28]); 9. Violet Thompson (ASOAFI [29]); 10. Jenny Doctor (ASOAFI [30]); 11. Queenie (Hart) of Duaringa (ASOAFI [31]); 12. Lily/Lilla Livingstone (ASOAFI [33]); 13. Nellie of Planet Downs (ASOAFI [35]); 14. Myra Freeman (ASOAFI [36]); 15. Sarah Dodd (ASOAFI [37]); and 16. Mary Ann Crook (ASOAFI [38]). |
3b. | Did any of those people hold rights and interests in immediately neighbouring claim areas and what was the nature of those rights and interests? | Remains in issue. |
3c. | Did any other persons, including Mary Ann Lamb, hold rights and interests in the Gaangalu claim area, or discrete parts of it, at the same time as the apical ancestors identified in the respective Forms 1? If so, identify them and identify whether the rights and interests were in relation to the possession, use or enjoyment of the land and waters in accordance with traditional laws and customs? | Remains in issue, including whether Mary Ann Crook (referred to in the propositions as Mary Ann Lamb) was part of the group comprising the claim group’s ancestors at effective sovereignty, or of the same regional society. |
4. | If the answer to question 3(a) is “yes”, did they hold the rights and interests on a regional, communal, group or individual basis? | Agreed in part, with reservation as to: a) the identity of such clan groups and their estates; and b) the nature of any clusters or aggregations. |
Gaangalu Claim Group - current position | ||
5. | Do the members of the Gaangalu claim group constitute a society, or part of a larger or regional society that is united in and by their acknowledgment and observance of traditional laws and customs, referred to in question 2? | Remains in issue. |
6. | Having regard to the way in which the Gaangalu claim group is defined in the Further Amended Claimant Application filed pursuant to orders made on 11 August 2017 (the claim group), and the available evidence, does the claim group (as a whole or in part) acknowledge and observe the traditional laws and customs identified in question 2? If in part, identify the part. | Remains in issue.1 |
7. | Which, if any, of the traditional laws and customs identified in question 6 as being acknowledged and observed by the Gaangalu claim group have changed in their nature or content since effective sovereignty, and what is the extent of such changes and are the changed laws and customs traditional? | Agreed as to those laws no longer observed, as noted in the First JER at [6] B and G. Remains in issue as to whether: a) other laws and customs continue to be observed; and b) contemporary asserted law and custom is adaptation of tradition. |
8. | If the answer to question 6 and/or 7 is “yes”, do members of the Gaangalu claim group continue to possess rights and interests in land and waters under those traditional laws and customs? If yes, do they possess them as a community (or society if they be the same thing in this case) or by a group or groups, or by one or more individuals? | Remains in issue. |
9a. | What, if any, differences are there in the rights holding organisation at effective sovereignty to any claimed rights holding organisation by the Gaangalu claim group? | Remains in issue. |
9b. | If differences in the rights holding organisation have been identified in the answer to question 9(a), by which process have any differences taken place? | Remains in issue. |
10. | Are there any people who continue to hold rights and interests in the Gaangalu claim area, or any part of it, other than members of the Gaangalu claim group? If so, identify the people, and the part, and whether their rights and interests pertain to the holding of rights and interests in land and waters in the claim area in accordance with traditional laws and customs. | Not applicable on the basis that the State does not acknowledge that any continuing rights and interests remain in the claim area according to traditional law and custom. |
11. | Have the traditional laws and customs identified in question 2, including those pertaining to the holding of interests in land and waters, continued to be observed and acknowledged by members of the same society from effective sovereignty until the present day? | Remains in issue. |
12. | Having regard to the answers to question 8, does the Gaangalu claim group have a connection with the Gaangalu claim area by their acknowledgment and observance of traditional laws and customs? | Remains in issue. |
13. | If it is considered that connection is maintained by a right holding entity/entities, does this connection extend throughout the area of land and waters claimed in these proceedings? If connection is established only in respect of portions of the claim area, which portions? | Subject to the State’s position at Proposition 12 above that connection to the whole of the claim area by traditional law and custom remains in issue, the following areas remain particularly in issue as to contemporary connection: - Mount Morgan and Dee/Don River area; and - the area above the Capricorn Highway. |
528 In post-hearing submissions, the State summarised its contentions that the applicant has failed to satisfy requirements of ss 223(1) and 225 of the NTA as follows:
(a) that at the time of sovereignty, or effective sovereignty, there was “a body of persons united in and by its acknowledgment and observance of a body of laws and custom”, in this regard the State submits that:
(i) the Applicant has not demonstrated by the evidence that there was a society sufficiently organised as to create and sustain rights and duties since pre-sovereignty times or that any presence on the claim area was part of a functioning system;
(ii) it is likely the GNP claim area, or part of it, west of the Dawson River was occupied by Aboriginal people who were described under variations of the label Gaangulu, however the Applicant has not proved on the balance of probabilities that this was the case for any particular part of the claim area east of the Dawson River, and certainly not that part above the Dee and Don Rivers;
(iii) Gaangulu, Garingbal and Wadja were together likely to have been members of a regional society at sovereignty, however the Applicant’s position, being the existence of some inclusive but undefined regional society, is an insufficient basis to prove native title;
(iv) while the State accepts the claim area was likely at sovereignty to have been populated by a number of clan-based estate groups, it submits that the evidence does not demonstrate these to all have been Gaangalu clans;
(v) the broader anthropological material in evidence suggests that the estate group is a common or foundational aspect of land-based organisation throughout Australia, and that this of itself says nothing about any society in this region;
(vi) further:
(1) there is little evidence of classical geographical limits or focal points for the claim area or region, save for areas later associated with the Gaangalu language. However, the evidence does not support the use of language as a reliable determinant of the geographical scope of society in this instance;
(2) no common totemic entities, site-specific myths, songline verses, sacred objects or similar have been identified in the ethnographic record or discussed by Dr de Rijke at all in this analysis;
(3) although inalienability and communal tenure have not been identified in the classical evidence they may be accepted. However, while they are necessary ingredients of native title, Wyman FC confirms that they are not alone sufficient to establish native title. Further, they are so generic as to be unable to distinguish any society/holders of underlying title;
(4) the factual basis for Dr de Rijke’s discussion of intermarriage is ultimately unproven, the figures he uses are too small to be meaningful and, further, specific evidence on the issue tends to exclude Darumbal from any such society; and
(5) acquisition of rights in land based upon patrifiliation has been identified as a common characteristic, but no more nuanced aspects of acceptable bases by which claims over land may be made have been identified by Dr de Rijke - for example inheritance from mother, or by marriage; and
(6) other features of Sutton’s indicia are not supported on the evidence;
(vii) while underlying title indicia may, in appropriate circumstances, be inferred from contemporary evidence as to geographical scope and the like to have existed at sovereignty, that is not the exercise undertaken by the experts or the Applicant, who rely on the ethnographic record to establish a society;
(viii) in this instance undertaking a contemporary assessment confirms an absence of recognition of any form of contemporary underlying title by members of the claim group. On that basis, there is in this proceeding no basis to infer a classical society from contemporary evidence; and
(ix) there is a need for there to be sufficient unity across the society, and at least the claim group, for there to be the requisite body of persons united by acknowledgement and observance of a body of traditional law and custom;
(b) the nature and content of a normative body of laws and customs (the traditional laws and customs) pursuant to which rights and interests were held at the time of sovereignty, in this regard the State submits that:
(i) the necessity for the identification of traditional laws and customs is not the identification of them in some generalised way or by reference only to the topics that they are concerned with. It requires an identification of the content of the laws and customs;
(ii) the pleaded system of traditional law and custom is largely inferred from other areas and is so generalised that it amounts to no more than certain topics on which laws and customs may have existed;
(iii) the requisite element is that laws and customs must be normative, “normative content” means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society, with forms of social sanction (especially disapproval by elders) in some instances. The State submits that there is insufficient evidence that the pleaded traditional laws and customs are normative; and
(iv) whatever system of traditional law and custom existed within the claim area at effective sovereignty has largely disappeared, together with the evidence of what that law and custom in fact was, how it connected the people to the land and waters of the claim area, and the identity of the society of people bound together in its acknowledgement and observance;
(c) the nature and content of the rights and interests held at the time of sovereignty pursuant to the traditional laws and customs, in this regard the State submits that:
(i) the native title rights and interests which are the subject of the NTA are those that existed at sovereignty, survived the fundamental change in legal regime, and now, by the processes of the new legal order can be enforced and protected;
(ii) the existence, character and extent of native title rights and interests, whether communal, group, or individual, depend upon the traditional laws and customs of the community in question;
(iii) this in turn depends upon the identification and continued existence of traditional law and custom, the identification of which is fundamental to the existence of rights and interests;
(iv) based on the Applicant’s posited case, the rights and interests must, if they continue to exist, be founded in the law and custom of the regional society and, are subject to the “underlying title” of that regional society. In the State’s submission it is doubtful that any such relationship is acknowledged by the lay witnesses, or otherwise established on the evidence;
(v) if a society out of which the body of laws and customs arises ceases to exist as a group that acknowledges those laws and customs, the laws and customs will cease to have continued existence and vitality, and they will no longer support the previously existing rights and interests; and
(vi) …the Applicant has not sufficiently identified an underlying body of law and custom by which to define the society and to establish rights and interests;
(d) that the traditional laws and customs have been acknowledged and observed by the relevant society, and that such acknowledgement and observance has continued substantially uninterrupted since sovereignty, in this regard the State submits that:
(i) the Applicant has not demonstrated that the asserted body of law and custom practised today constitutes a normative system in respect of the land and waters of the claim area which is sufficiently grounded in the traditional system so that either that system or the society of people observing it can be said to be the same society, and the same traditional law and custom (albeit adapted) as existed at sovereignty;
(ii) inherent in the generalised descriptions of traditional law and custom posited by the Applicant is a very significant amount of loss of each of those laws and customs, such that no specifics can in fact be given. Those generalised asserted laws and customs are a result not only of the paucity of the ethnographic record, but also the paucity of detail of current law and practice;
(iii) so little of the traditional laws and customs is known that it is impossible to meaningfully assess either what has been lost, or the degree to which the modern system in fact reflects the traditional, including the means of connection by that traditional system to the land and waters of the claim area;
(iv) direct evidence of law and custom remaining today is in many instances generic, or idiosyncratic, and does not touch on what might be inferred to be fundamental matters of traditional law and custom. Where features have an appearance of tradition, they are frequently not shared widely amongst the claim group or are undermined by other conflicting aspects of the evidence which bring their shared nature and traditionality into question; and
(v) the absence or loss of an extensive range of features that would be expected to be seen as features of traditional law and custom tells against continuity;
(e) that the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time, in this regard the State submits that:
(i) …the Applicant has not sufficiently identified an underlying body of law and custom by which to define a Gaangalu society and that the Court cannot be satisfied that any society as a whole has continued;
(ii) conceptually, loss of other parts of the society does not necessarily compromise a claim group’s claim if they in fact continue to recognise the laws and customs of the original society and remain connected to the claim area thereby. However, in this case the State submits that due to the generalised nature of the described traditional laws and customs, and the lack of sufficient detail and unity across the claim group as to the currently acknowledged and observed laws and customs, there is insufficient evidence to demonstrate that the claim group continues to recognise the laws and customs of the pre-sovereignty society;
(iii) in addition, the lack of or variability in acknowledgement of Wadja, Western Kangoulu and Garingbal demonstrates that on this fundamental point of societal identity, law and custom has been lost by the claim group; and
(iv) the fact that there is a significant number of apical ancestors who, in the State’s view cannot be reliably traced to both Gaangalu identity or the claim area, goes directly to whether the claim group is an identifiable traditional entity which is and has remained bound together by traditional law and custom;
(f) that since sovereignty the relevant society has maintained a connection with the claim area and has transmitted rights and interests in relation to the claim area by and in accordance with the traditional laws and customs; and that, by the traditional laws and customs that are still observed by them, the claim group has a connection with the claim area, in this regard the State submits that:
(i) a range of witnesses demonstrated varying degrees of contemporary identification, physical association, and some even a contemporary spiritual association, with the land. The State accepts that the evidence demonstrates a reasonably strong contemporary identification of the witnesses as Gaangalu people; however,
(ii) in many instances the evidence of connection is through the lived history of claim group members and their parents or grandparents, but without sufficient indicia to demonstrate that it is a connection by traditional law and custom. In other instances, particularly some of the western parts of the claim area, there is insufficient evidence to demonstrate that connection has been substantially maintained over time in any real sense, whether physical, spiritual or cultural; and
(g) that the claim group (as a whole), acknowledge and observe the traditional laws and customs and the nature and content of the traditional laws and customs observed by members of the claim group, and that, by the traditional laws and customs that are still observed by them, the claim group has rights and interests in the claim area, in this regard the State submits that:
(i) as noted above, so little of the traditional laws and customs is known that it is impossible to meaningfully assess either what has been lost, or the degree to which the asserted modern system in fact reflects the traditional;
(ii) the direct evidence of law and custom remaining today is limited, and it is in many instances generic and does not touch on what might be inferred as fundamental matters of traditional law and custom. Where features have an appearance of tradition, there was little or no evidence of it being shared widely amongst the claim group or it was undermined by other conflicting aspects of the evidence which bring their shared nature and traditionality into question;
(iii) the broad absences of evidence of acknowledgment and observance by preceding generations, and the little that is known of those generations, is an indicator that the Court cannot be satisfied either that traditional law and custom has been acknowledged and observed without substantial interruption, or that connection to the land and waters of the claim area by that traditional law and custom has been substantially maintained over time and to today; and
(iv) there is simply too little left as a shared core, and too much loss or change, to describe any asserted modern law and custom as a continuation of the traditional system.
529 It is unnecessary to address each and every one of the issues identified by the State in its List of Matters Remaining in Contention. However, I will proceed to consider the essential issues.
Who were the Aboriginal people in occupation of the claim area at sovereignty?
530 The applicant relies primarily upon ethnographic records and the expert anthropologists’ analysis of those records to establish that Gaangalu people were in occupation of the claim at sovereignty.
531 An issue that is substantially in dispute between the applicant and the State is whether Gaangalu people occupied areas to the east of the Dawson River at sovereignty.
532 As the State’s material was ambiguous as to which parts of the eastern area were in dispute, I sought clarification of the issue after judgment had been reserved. The State’s response was that the evidence does not support a finding that Gaangalu people had rights and interests at sovereignty in any areas to the east of the Dawson River, with the exception of the area now known as Banana. The State expressly contends that the evidence does not indicate that the Gaangalu had rights and interests in Mount Morgan, Baralaba, and Rannes, and implicitly extends that contention to areas east of Banana such as Biloela and Thangool. The applicant has not sought to argue that it is not open to the State to take that ultimate position.
The ethnographic evidence concerning the Aboriginal people in occupation at sovereignty
533 Dr de Rijke’s research has revealed few ethnographic records from the late 19th and early 20th centuries relevant to the claim area, and those that have been found are limited in their content. In his first report, he comments that no ethnographic text provides detailed descriptions of the composition of the landholding groups in the claim area, the body of traditional laws and customs of such groups, or the normative society from which such laws and customs were derived.
534 One early ethnographic source is Edward Curr’s 1887 publication, The Australian Race: its origin, languages, customs, place of landing in Australia, and the routes by which it spread itself over that continent. Dr de Rijke observes that Curr, as well as a number of subsequent writers, largely focused on linguistic characteristics and dialectic differences between Aboriginal groups. Dr de Rijke considers that underlying these works appears to be an unexplained assumption that such differences signified distinct socio-cultural and/or landholding entities. He notes that the presumption of “tribes” as politically distinct entities based on a unique language, a bounded territory, endogamy, and distinct laws and customs has been challenged in more recent anthropological literature.
535 Dr de Rijke states that there are few available “primary” documents which might allow better evaluation of the interpretations and conclusions reached by early ethnographers. A notable exception is a collection of field notes by Caroline Tennant-Kelly from her anthropological field research at Cherbourg in 1934, recovered by Dr de Rijke in 2010. The majority of these field notes appear to be verbatim statements recorded from elderly informants born around the time of effective sovereignty who had knowledge of pre-contact traditional laws and customs. Tennant-Kelly observed that her senior research participants had been, “fresh from living outback, mostly from living on the river banks, where they had lived, for the most part, according to the ‘old way’”.
536 There are also field notes taken by Norman Tindale, an anthropologist, from his research in 1938 at Woorabinda, Cherbourg and Palm Island. Woorabinda is within the claim area.
537 Dr de Rijke, with the assistance of Dr Andrew Sneddon, has mapped several of the early ethnographic descriptions of Gaangalu territory. He notes that the geographic references in the material are often broad and therefore only indicative.
538 The anthropologists’ reports have not provided any detailed account of European exploration and settlement of the claim area and surrounding districts.
539 However, the material indicates that Ludwig Leichhardt, the German explorer, travelled north along rivers that he named the Comet and in December 1844 and the Mackenzie in January 1845. He recorded the presence of Aboriginal people in that area.
540 In the eastern part of the claim area, Rannes Station was established in 1853, followed by proclamation of the Port Curtis and Leichhardt pastoral districts in 1854. From the early 1860s, pastoral stations just to the west of the current claim area started to be established, including Cullin-La-Ringo, Emerald Downs and Gordon Downs (within what is now the Western Kangoulu claim area).
541 Curr’s 1887 text contains a chapter headed, Eastern Slopes of Expedition Range, Lower Dawson, Upper Fitzroy, Mackenzie, and Isaacs Rivers and their tributaries. The information Curr obtained was provided by European informants Peter McIntosh, W.D. Cooke and C.G. Barthelemy.
542 Curr was particularly interested in comparing wordlists sent to him by his informants. McIntosh had lived with Aboriginal people while he was at Rio Station, south of the junction of the Dawson and Mackenzie Rivers. McIntosh wrote the following about the “Kaangooloo” (Gaangalu):
I have filled the accompanying vocabulary as far as my memory serves me in the Kaangooloo Thaa, in which I could converse indifferently some thirteen years since ... The Kangooloo are a tribe, or rather a confederation of several tribes - the Karranbal, the Maudalgo, the Mulkali, and others inhabiting the country on the eastern slopes of Expedition Range, the Lower Dawson, the Upper Fitzroy, and the Mackenzie Rivers, and their tributaries - all speaking the same Thaa or tongue. In common with many other tribes, their negative kaangoo also expresses the generic name of their tribe, Kaangooloo.
543 Dr de Rijke identifies two important matters emerging from McIntosh’s description: first, the linguistic similarities of a number of named groups in an area broadly defined by the lower Dawson River, the upper Fitzroy River and the Mackenzie River; and, second, the reference to the Aboriginal people in the area as a “confederation of several tribes”, presumably referring to more than linguistic similarities.
544 Curr produced the following map:
545 In Curr’s map the area occupied by the Kangooloo is labelled with the number 150, the area of the “Dawson River” people is numbered 159, and the area occupied by the “Kanoloo” is numbered 157. Those groups are located within the current claim area.
546 In respect of the eastern part of the claim area mapped as “Dawson River” (no. 159), Curr noted:
I have received three vocabularies called after their negative adverbs - the Wokka, Wogga, or Woga dialects-two from Mr. John O’Connor and the other from Mr. E. Cunningham. The two first are said to belong to the Dawson River Blacks; the third Mr. O’Connor locates on the Burnett. Internal evidence, however, leads me to believe that though the Blacks from whom the vocabulary in question was obtained were met with on the Burnett, and said that they belonged to that river, as they probably do now, the language really belongs to the Dawson River country.
547 Dr de Rijke comments that reference to “Wokka” is a reference to Wakka dialects, generally considered to be located in the middle to upper reaches rather than the lower parts of the Dawson River. However, Curr mapped these Wakka dialects very broadly to include “the Dawson River country”, conflicting in the northern part with the location given by McIntosh for Kangooloo as “the lower Dawson”. Dr de Rijke regards Curr’s mapping as broadly indicative only, and I accept that assessment.
548 In the western part of the claim area, Curr mapped the “Kanoloo” (no. 157). He wrote:
The following vocabulary and account of the Kanoloo tribe were kindly forwarded to me by Mr Thomas Josephson. The territory of this tribe is on the head of the Comet River, and was occupied by the whites, my informant thinks, in about 1860. At that date it is believed the tribe numbered about five hundred persons; that in 1869, when Mt Josephson resided in their country, it had been reduced to three hundred, and in April 1879, the date of that gentleman’s communication to me, to two hundred souls.
549 Dr de Rijke states that this reference to “Kanoloo” is the only historical source for the group label spelt as “Kanolu” in native title proceedings. He notes that the term appears to be a close phonetic rendering of “Gangulu”.
550 Dr de Rijke states that the geographical description for Kanoloo as “on the head of the Comet River” refers to an area otherwise considered part of Gangulu in the ethno-historical record. In his opinion, “Kanoloo” was more likely than not a spelling mistake or other corruption of the spoken word and should have referred to “Gaangalu”.
551 The information provided by McIntosh to Curr with regard to the Kangooloo was corroborated in 1894 by “Gir-oonbah”, an anonymous contributor to The Queenslander newspaper, who described the language group of the region as follows:
The Kong-oo-loo (Duaringa district), which is not considered to be an extensive language, I have known to be understood as far north as Townsville and south as far as the border [with New South Wales].
552 Dr de Rijke comments that this statement places the localised Duaringa district within the vast region of the Maric language bloc of which the Gaangulu language was part.
553 Gir-oonbah provided more detail in 1895, stating:
The tribe treated of here is the Kong-oo-loo who inhabit the country lying between the Mackenzie River and the lower Dawson.
554 Dr de Rijke has produced the following map of the claim area illustrating the approximate extent of the “Kong-oo-loo” as reported by Gir-oonbah:
555 In 1899, R.H. Mathews gave the following description of “Kang-ool-oo” territory:
On a tract of country at the junction of the Dawson with the Fitzroy, and thence westerly to Arthur’s Bluff, extending also north and south for some distance, is a tribe called Kang-ool-lo, having four sections, the names of which are evidently modifications or combinations of those in use among the Dippil and Kooinmerburra nations.
556 Dr de Rijke observes that because Mathews did not undertake any fieldwork himself, he appears to have relied upon the information provided by McIntosh and Gir-oonbah and/or correspondence from the pastoralist, W.H. Flowers.
557 The following map depicts Mathews’ description of Kang-ool-oo territory:
558 In his 1904 work, The Native Tribes of South-East Australia, A.W. Howitt mapped the “Kongulu” in the area defined by the low-lying country in the large bend of the Mackenzie River and its confluence with the Dawson River. The location of the “Kongulu” according to Howitt has been overlaid on the following map of the claim area:
559 In 1938, Norman Tindale and Joseph B. Birdsell embarked on the Adelaide-Harvard Universities expedition, conducting field research among Aboriginal people in a range of locations, including Cherbourg, Woorabinda and Palm Island. Tindale undertook field research at Woorabinda, in the claim area. A mission had been established in 1927 at Woorabinda in the claim area and received Aboriginal people removed from many parts of Queensland under the authority of Aboriginal Protection and Restriction of Sale of Opium Act 1897 (Qld).
560 In 1940, in Distribution of Australian Aboriginal Tribes: a Field Survey, Tindale published the findings of the expedition. Tindale described the ‘Ka:ŋulu’. Dr de Rijke states that the symbol -ŋ- is a linguistic symbol from the International Phonetic Alphabet denoting the velar nasal sound. It is the sound of “ng” as in the English sing, so that “Ka:ŋulu” is pronounced as “Kangulu”.
561 Tindale described Ka:ŋulu territory as follows:
Dawson River south to Banana and Theodore; west to Mackenzie River, Comet River and northern end of Expedition Range; north to junction of Isaacs and Mackenzie Rivers; at Blackwater and Dingo. The Don River, Mount Morgan, east of Banana and about Rannes may have belonged to a separate tribe (east of Gogango Range, west of the Coast Range). [Alternative spellings]: Kaangooloo, Khangalu, Kongulu, Kongalu, Konguli
562 Tindale’s map of Ka:ŋulu territory captures much of the same area as earlier researchers, placing them to the south of the Mackenzie River and to the east of the Comet River. Tindale’s map also depicts eastern and south-eastern boundaries for the Ka:ŋulu less clearly mapped in earlier depictions. Tindale is the first to locate a group called the “Wadje” in the area between the Expedition, Dawson and Bigge Ranges.
563 The map below depicts Tindale’s map overlaid onto a map of the claim area. Dr de Rijke states that the overlay should be regarded as an approximation of Tindale’s boundaries relative to the claim area. It may be noted that this map depicts areas described that Tindale stated “may have belonged to a separate tribe” as Gaangalu country.
564 In his 1974 work, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits, and Proper Names, Tindale made important amendments to his 1940 map. He divided the territory he formerly identified as “Ka:ŋulu” between two different groups with very similar names: the Ka:ŋulu and the Kanolu. Additionally, he took the view that no separate group owned the area around the Don River, Mount Morgan, east of Banana and Rannes, contrary to the suggestion in his 1940 text. The change in Tindale’s opinion was presumably based on a wordlist obtained by F Bennett from the Mount Spencer wordlist area, to be discussed later, which Tindale now included in his list of references. Tindale’s 1974 map overlaid onto a map of the claim area is depicted below:
565 Tindale’s 1974 description of the territory of Ka:ŋulu was:
Dawson River south to Banana and Theodore; northwest to Mackenzie River and near Duaringa and Coomooboolaroo. East to Biloela, Mount Morgan, Gogango Range, and the upper Don River; southeast to Thangool and the headwaters of Grevillea Creek. In the 1940 edition a western tribe, the Kanolu, was incorrectly mapped along with this one. It will be noted that their vocabularies have little in common. Two names mentioned by McIntosh, namely Maudalgo and Mulkali, may belong to one or another of these tribes, but no data have been found to enable them to be applied.
566 Tindale’s 1974 description of Gaangalu territory as encompassing the eastern part of what is now the claim area, including areas such as Mount Morgan and east of Banana and Rannes, has been adopted by the applicant, but is disputed by the State.
567 Dr de Rijke comments that he has found few early references to the area east of the Dawson River, and ambiguous material exists with regard to the region around Mount Morgan. He indicates that the chief sources for the designation of these areas as Gaangalu territory at effective sovereignty are Tindale’s work and Jefferies’ analysis of Bennett’s Mount Spencer wordlist and another wordlist from Mount Morgan.
568 Walter E. Roth, who was appointed Chief Protector of Aborigines for Queensland in 1904, had travelled to the Rockhampton area in 1897 and met Aboriginal people near Mount Morgan. He wrote in 1898:
Occasionally the Taroombul [i.e. Darumbal] would pay a visit to Gracemere and Westwood and in very early times were known to have traveled up to Mount Morgan.
Gracemere in the olden days formed the home of the Warra-burra whose peregrinations included Calliungal, Mount Morgan, Westwood, Rosewood, Rockhampton, Emu Park and Gladstone, than which they never traveled further south: the station, for many years past, has been deserted by the remaining members of the sub-tribe.
At Mount Morgan I visited the blacks’ camp situated some 2 1/2 miles from the township on the banks of the Dee ... These blacks here are of Rockhampton and Gracemere parentage, the local (original) Wollea-burra, whose ‘walk-about’ extended out towards the Prarie and Banana way, being exterminated.
569 Roth’s reference to “Taroombul” is apparently to the Darumbal, who have now obtained a native title determination to the east of the Gaangalu claim, encompassing Rockhampton.
570 Dr de Rijke understands Roth’s reference to “peregrinations” to convey areas that were habitually traversed by the Warra-burra, which he describes as possibly a local sub-group of the coastal Darumbal. The reference to “walk-about” is, in his opinion, also likely to be a reference to the domain through which Aboriginal people habitually travelled, rather than a reference to traditional ownership of all the areas concerned. He has not explained why that is so, but I accept that the expression “walk-about” is ambiguous.
571 Dr de Rijke understands Roth to say that he had been told by Flowers that Mount Morgan had been associated with a group known as the Wollea-burra, and that those people had become extinct. The people Roth encountered had apparently moved up to Mount Morgan from the Rockhampton and Gracemere region. Based on his correspondence with Flowers, Roth considered the Wollea-burra to have been a sub-group of the “Warrabul Tribe”.
572 In 1910, Roth mapped the “main tribes” of the region and their constituent groups as follows:
573 In Roth’s map, the “Wollea-burra” sub-group of the Warrabul is indicated by the number 20, in the vicinity of Mount Morgan. Dr de Rijke considers it difficult to ascertain the veracity of Roth’s depiction of the Wollea-burra as a Warrabal subgroup environmentally separated from the remainder of the coastal plain Warrabal by the steep range at Mount Morgan. He speculates that the “Wollea-burra”, having the suffix “burra” or “bara” known throughout eastern Australia, may have been a localised land using group or “horde” within the broader Gaangalu language domain.
574 Dr de Rijke notes that Roth’s information was based on data obtained from Flowers, who lived on the coast about 100km to the north of Rockhampton. Dr de Rijke comments that Flowers was not a trained anthropologist and suggests that his understanding of territorial organisation is likely to have been limited. It may be observed that, in contrast, Dr de Rijke has accepted other lay sources of information such as McIntosh and Gir-oonbah at face value.
575 Flowers also corresponded with anthropologist A.W. Howitt about Aboriginal territorial organisation in the region. In 1904, Howitt noted the following difficulties relating to an area to the north of the claim area, which Dr de Rijke considers are also applicable to the Gaangalu claim area:
The particulars given as to the tribes of this part of Australia are a good instance of the manner in which a large tract of country claimed by any one tribe is parceled (sic) out among its lesser divisions. It is in such cases most difficult to decide whether one has to do with a single tribe, with a group of sub-tribes, or a number of hordes where there is female descent, or clans where there is male descent. More especially is this difficulty apparent when the inquiries have to be made through a distant correspondent, however willing and careful he may be.
576 In terms of the information provided by Flowers for thirteen coastal groups between the Mackenzie River in the north and Gladstone in the south, Howitt specifically mentioned:
My correspondent speaks of these as tribes, and the area occupied by them is so considerable that it supports this view, but on the other hand their names suggest “local divisions” of a larger tribe. I am not able to decide this matter, and my correspondent is not now available.
577 Dr de Rijke states that in 1938, anthropologist D.S. Davidson largely reproduced Roth’s map, which was based on the information provided by Flowers, in an article entitled, An Ethnic Man of Australia. Davidson expressed concerns about the accuracy of his own mapping, saying:
Since many of the earlier writers received their information by correspondence from distant settlers, who in turn may never have visited many of the tribes they reported on, but knew of them only through hearsay from local blackfellows, most of these conflicting reports of a tribe’s location may be erroneous. Here again, however, it is impossible to make certain which accounts are reliable. Nevertheless the placing of these names on the accompanying map required the exercise of arbitrary judgment on the part of the author with the probability that he has accepted as authentic many claims which are faulty and has underestimated other evidence which deserves greater weight.
578 Dr de Rijke states that in view of concerns about the reliability of the data provided by Flowers, and because there is no convincing and corroborating evidence, he cannot rely upon the data relayed by Roth to form conclusive opinions about the region around Mount Morgan.
579 In 1918, F Bennett collected a wordlist from an Aboriginal man, “a very old blackfellow, the last of the Lower Dee blacks”. The informant was said to come from the Mount Spencer area. Mount Spencer is about 44 km south-west of Mount Morgan.
580 Bennett was interested in the dialectical differences between the people from the Lower Dee region and those from the Middle Dawson, which he described as 50 miles to the south-west. Bennett thought the tribe of the Lower Dee was a small one located in a small area. He noted that tribes only 50 miles apart used different words for the most common objects. Bennett did not name the tribe of his informant.
581 As already noted, in 1974, Tindale described Gaangalu territory as extending east of the Dawson River to areas such as Biloela, Thangool and Mount Morgan, whereas, in 1940, his opinion was that such areas, “may have belonged to a separate tribe”. The only further source cited by Tindale in 1974 relevant to that issue was Bennett’s Mount Spencer wordlist. In Dr de Rijke’s opinion, Tindale may have regarded the Bennett wordlist as Gaangalu, and, on that basis, disagreed with the description by Roth and Flowers of the territorial groups and boundaries in the Mount Morgan region.
582 In his 2006 publication The Maric Dialects of the Fitzroy River Basin, Tony Jefferies, a linguist, wrote of the Mount Spencer wordlist:
[l]t is the only significant 19th century wordlist we have from the Dawson River Valley ... It is a dialect with lexical features that separate it from most of the eastern dialects to which we have made reference, although we would be wrong to conclude that this separates the Mt. Spencer dialect from the Kaangooloo Thaa in any substantial way. More importantly, the Mt. Spencer dialect is from an area that falls within the orbit described by McIntosh for the Kaangooloo Thaa, albeit on the periphery of where this dialect was spoken. Mt. Spencer is in the vicinity of the confluence of the Don and Dee Rivers with the Dawson River, making it the most easterly of the Gaangalu dialects for which we have a wordlist…
583 Jefferies was not called to give evidence. Dr de Rijke states that he is not qualified to assess the linguistic technicalities upon which Jefferies’ assessment is based, but notes Jeffries’ “fundamental statement” that Gaangalu language was likely spoken in the vicinity of Mount Morgan and Mount Spencer, in the eastern part of the claim area.
584 Dr de Rijke argues, based on the anthropological literature, that Aboriginal territorial boundaries are, generally speaking, best understood as zones of transition rather than narrowly defined lines on a map.
585 Dr de Rijke notes that Tindale considered the Warrabal to be a subgroup of Darrambul, a coastal group in the Rockhampton region. He considers that, based on the references by Roth and Tennant-Kelly as well as contemporary evidence from Gaangalu witnesses, the Mount Morgan area was likely traversed by Aboriginal people from a variety of groups and may have functioned as a meeting place between Gaangalu and Darrambul. It is his opinion that the steep mountain range on which the town of Mount Morgan is now located was a boundary area, or transition zone, between the coastal group located around Rockhampton and the inland Gaangalu.
586 Dr de Rijke considers that the establishment of the Mount Morgan gold mine and associated town in 1882 likely attracted Aboriginal people from the region to stay on a more permanent basis. This is supported by Roth’s observation that Aboriginal people from Rockhampton and Gracemere were resident at Mount Morgan when he visited in the early 1900s.
587 Dr de Rijke states that, “in the absence of convincing materials to suggest otherwise, it is my opinion that Mount Morgan and the area of the Don and Dee Rivers are appropriately included in the GNP native title claim”.
588 Dr de Rijke also considers that the Gaangalu territory extended to the west of the claim area at sovereignty. He notes that in 1935, Caroline Tennant-Kelly mapped a number of Aboriginal groups in and around the claim area based on her fieldwork in Cherbourg, although it is merely a thumbnail sketch of the wider region not drawn to scale:
589 The numbers 9, 10 and 11 represent what Tennant-Kelly described as “Khangalu”, “Kaingbul” and “Khararya” respectively and appear to be in or around the claim area.
590 Tennant-Kelly’s field notes record statements from informants at Cherbourg in 1934, some of whom were born around the 1850-60s at the time when Europeans first entered the lower Dawson and Comet River areas. These statements include observations regarding the claim area and surrounding areas. Dr de Rijke considers that Tennant-Kelly’s field notes provide data that support previous sources in respect of Gaangalu occupation of the area around Duaringa and the Mackenzie and Dawson Rivers, but also includes places such as Emerald and Springsure to the west of the claim area.
591 In Dr de Rijke’s opinion, Tennant-Kelly’s field notes provide “convincing data” to support a view that Gaangalu territory extended west beyond the boundary of the current claim area, particularly around Emerald. In his joint expert opinion with Kim McCaul concerning the Western Kangoulu native title claim, they stated:
Charlotte Costello... told Tennant-Kelly in 1934 that her “run” included “Emerald, Comet River, Blackwater, Dawson River (meet others here)”.... McCaul’s report (2015) [identifies] several “ranges” of association provided by informants to Tennant-Kelly and Tindale in the 1930s. This information strongly supports the interpretation that Kangulu people traditionally considered connection to a larger stretch of country than simply the station or town of their birth of residence. As well as Costello’s range, another directly relevant piece of information is “Kangalu - Emerald to Duaringa. Right to Rolleston”. Harriet Mummings [seemed] to identify some people as Kangulu from the Dawson River - Duaringa area, including Jack Bradly and Charlotte Costello. As McCaul states in his report, the available evidence suggests that Jack Bradly’s main focus, in terms of country, was around Emerald. [See also Tennant-Kelly’s fieldnotes from work with Jack Bradley]. But Harriet Mummings seems to have viewed him as a member of the same social group as her in the 1930s, and this recognition seems to have continued among Kangulu families to the present.
(References omitted.)
592 Charlotte Costello and Harriet Mummins (or Mummings) provided information to Tennant-Kelly in Cherbourg in 1934. Charlotte Costello was a Gaangalu woman. Harriet Mummins was described by Tennant–Kelly as Gaangalu, but Tindale recorded her as Wadja. Dr de Rijke considers that Harriet Mummins may have identified as Wadja in some circumstances, and as Gangulu in others. It may be noted that information provided by Charlotte Costello and Harriet Mummins will figure prominently later in these reasons.
593 Dr de Rijke considers the material to indicate there was an Aboriginal group referred to as “Gaangalu”, and that some members of this group had connections to places that stretched from Duaringa in the east to Emerald in the west. His opinion is that the “Gaangalu identity label” covered areas now located in both the current claim area and Western Kangoulu claim areas.
594 In 1938, D.S. Davidson also mapped the “Kongalu” broadly at the low-lying land between the Comet, Mackenzie and Dawson Rivers, relying upon the earlier work of others. He mapped the “Kaing-bul” at the headwaters of the Comet River, and the “Wara-bal” west-northwest of Rockhampton.
595 With respect to the Kanolu in the west, Tindale stated in 1974:
Eastern headwaters of the Comet River from Rolleston north to Blackwater and upper Mackenzie River; east to about Dingo and vicinity of Duaringa. Their original population in 1860 was about 500 persons. Because of a similarity of name, this tribe has been confused with an eastern neighbour the Kangulu from whom they differed widely in dialect. Their word for ‘man’ was [‘mari’] and for ‘no’ was [‘kara’], contrasting with the [‘bama’] and [‘ka:nu’] of the Kangulu. In the 1940 edition of this map, they were incorrectly shown as a western part of Kangulu.
596 Tindale makes a distinction between the Kanolu and Kangulu on the basis of recorded vocabularies and dialect differences. Dr de Rijke notes that the only early source for Kanolu appears to be T Josephson in Curr’s 1887 work. Curr described the “Kanoloo tribe”, located at the “Head of the Comet River”, which is a much smaller and more south-westerly area than that depicted in Tindale’s 1974 map.
597 Dr de Rijke states that comparative linguistic research of the available wordlists from the region indicates that Curr’s “Kanoloo” wordlist is related to the Bidjara language, which is a language located to the west-southwest of Gangulu. In 1974, Tindale placed “Kanolu” in the western half of the claim area, “correcting” his 1940 map. However, Tindale’s 1974 placement of the Kanolu was not based on any fieldwork additional to that he had undertaken in 1938. Dr de Rijke observes that Jefferies stated:
Tindale’s description of Kanolu clearly shows his reliance on Josephson [in Curr]. In addition, there appears to be no primary evidence that would have enabled Tindale to have made the broad expansion of Josephson’s Kanoloo into the vastly enlarged Kanolu country he did [that is, much further north and north-east of “Head of the Comet River”]. Admittedly the linguistic evidence for the area in question is scant, yet all we do have: from Emerald [Meston], McIntosh, Cameron and contemporary informants .... contradicts the existence of Kanolu as Tindale describes it.
598 Jefferies considered that Tindale had misplaced the Kanolu by analysing the data available for the Garingbal dialect, which he considers to be a western Gaangalu dialect. Dr de Rijke notes that in 2009, Breen concurred with Jefferies’ analysis and placed the Garingbal dialect in the area designated as “Kanolu” by Tindale in 1974.
599 Dr de Rijke considers there is a reference in Tindale’s own notes of 1938 that also appears to place the Garingbal dialect in the area of the Mackenzie River. Tindale records Lily Tiger as “fb [i.e. ‘full-blood’] Kaŋulu of Mackenzie River NE of Dingo”. He added in parentheses: “(which is part of Kariŋbəl t. Huey)”. The reference “t. Huey” (‘t.’ is Tindale’s abbreviation for ‘according to’) likely means Lily’s husband Albert Huey was the informant, and the reference to Garingbal and Gaangulu is an indication of the close linguistic relationship between the two. The linguist Nils Holmer characterised Garingbal as a form of Gaangulu and called it “Gangalu A”.
600 Dr de Rijke’s and Mr McCaul’s joint expert statement for the Kanolu #2 native title claim, which at that time overlapped with the Gaangalu claim, stated as follows:
a. That there are only 2 reference to Kanolu in the ethnographic record. One is clearly a mistake as it is made with regard to Duaringa for which there are numerous references to Kangulu, leaving only 1 for the “head of the Comet”, a poorly defined area. Here too there is a reference to Kangulu at Rolleston, which can be considered to at the “head of the Comet”.
b. That it is well known in the context of historical linguistic work that many amateur observers misheard the ‘ng’ sound in Aboriginal words.
c. That there is no linguistic basis for a name “Kanolu” other than that it applies to a dialect that says “kanu” for “no” instead of “kangu”. There is no record that such a dialect existed and the vocabulary list labelled as “Kanolu” does not use that word.
601 Dr de Rijke states that Gangulu people at sovereignty likely spoke a number of languages, which makes any determination of cultural and territorial distinctness based on language information alone difficult to sustain. However, he concludes that in 1974, Tindale erroneously located the Kanolu dialect in the broad area around the Mackenzie River. In his opinion, it is more likely than not that “Kanolu” was not an identifiable group at all, and that this label was the product of a misspelling or corruption of the word “Gangulu”.
602 Dr de Rijke states that Garingbal is, in the linguistic terms of Holmer, a Gangulu dialect which appears to have been spoken around the Brown River as well as the Mackenzie River. Dr de Rijke considers that the designation of the area around the Mackenzie River as Gangulu, understood as an overarching “regional language label”, is thus appropriate. He comments that any dialectic distinctions in this case are a matter of linguistic technicality, with the social and cultural similarities between Garingbal and Gangulu being more salient for native title purposes.
603 Dr de Rijke considers it likely that Garingbal speakers identified as Gangulu in certain contexts because the ethnohistorical record indicates that Gangulu can be regarded as a regional composite sociolinguistic label. In Dr de Rijke’s opinion, Gangulu can be seen as an, “overarching, inclusive regional sociolinguistic identity label”, which may well have been used by people who at other times identified as Garingbal.
604 Dr de Rijke notes that Tindale was the first anthropologist to distinguish the “Wadja” from the Kanolu and Kangulu. Tindale’s material contains a number of alternative spellings of Wadja, such as Wainjigo, Wadjaiŋgo and Waingo. Tindale regarded these as variations of the term Wadja.
605 In 1974, in maintaining a distinction between the Kanolu, Ka:ŋulu (Gaangalu) and the Wadja on his 1974 map, Tindale described the Wadja as follows:
Streams on the east side of Expedition Range; south to Bigge Range; east nearly to Dawson River. Closely related to the Kangulu. The original inhabitants of Woorabinda. Native tradition is that they were formerly two separate small tribes, Wadja and Wainjigo. They lived together for “a long time” until their separate identities were submerged.
606 Dr de Rijke notes that in his field notes, Tindale recorded information which is supportive of some parts of this statement. In his comparative linguistic analysis, Jefferies concluded that Wadja is a Bidjera-related dialect significantly similar to the dialect Kanolu.
607 In 1938, Tindale’s informant Fred Johnson told him the following about the Wadja:
A small group of people who in the time of my father lived at Banana on Dawson River lived 17-18 miles away from main channel. .. Loc[ation]. E[ast] side of Expedition Range and from Bigge Ra[nge] NE to Dawson Range on W[est] side of Dawson River but away from main river...
Tribes allied to Waiŋgo in Dawson River area are Kaŋgulu + Karainbal.
(Citations omitted.)
608 Tindale recorded further corroborative evidence from Charles Mummins at Woorabinda:
Charles Mummins gave information about the Wadja (Wainjigo, Warjarygo) tribe of the country on which this Station [i.e. Woorabinda] is situated, south west of Duaringa, west of the Dawson and north of Bigge Range. The people are now mixed with surrounding tribes or are dead. Formerly there were two small tribes Wadja and Wainjigo but they have been one ‘for a long time’ (Tindale 1938b:723 (N.1297)).
609 Dr de Rijke observes that first, Wadja and Gaangalu (inclusive of Garingbal) are “closely related” identity labels and, second, around the time of Tindale’s recording in 1938, Aboriginal people appear no longer to be using the Wadja identity label, possibly as a result of group fusion and/or reduced population numbers.
610 Dr de Rijke makes particular comment about the area around Woorabinda, the Aboriginal settlement that was established in 1927. Aboriginal people from all over Queensland have been living at Woorabinda since their predecessors were forcibly moved there.
611 The Woorabinda area has been subject to an overlapping native title claim by the Wadja People, but the Wadja claim has been amended and there is no longer an overlap.
612 Dr de Rijke notes that Gaangalu claimants strongly assert that Woorabinda and surrounds are within Gaangalu country. He considers this to have been independently corroborated by information obtained from the Dunne family, the long-term owners of Wooroona and Coomooboolaroo pastoral stations in the claim area. The Dunne family arrived at Wooroona station in 1907, where Woorabinda was later established in 1927.
613 The current owner of Wooroona Station, Tim Dunne, informed Dr de Rijke that his father, Bill Dunne, who lived to the age of 95, was particularly close with the Aboriginal people who worked on the Station. Tim Dunne said that his father had been told by senior Aboriginal people who had worked on the station that the area was Gaangalu, and this is corroborated in an audio-recording estimated to be from the early 1990s of discussion between Bill Dunne and senior Gaangalu claimant Tim Kemp in which each of them regards Wooroona as Gaangalu country.
614 Tim Kemp’s assertions are supported by the writings of Nils Holmer, who worked with older Gaangalu people such as Kruger White and Claude Anderson. Holmer noted:
Kangulu informants often hail from Springsure, Emerald, Duaringa or the Dawson river (the Woorabinda settlement, for instance, is to be considered as within the original Kangulu territory).
615 Dr de Rijke concludes that the ethnographic records from the late 1880s to 1970 consistently place the Gaangalu language in the area defined by the Comet, Dawson, Mackenzie and Fitzroy Rivers. In his opinion, it is reasonable to infer that these Aboriginal people and their predecessors were Gaangalu people who had detailed knowledge of, and a connection with, the claim area at the time of effective sovereignty.
616 Dr Kenny notes that the main ethnographic sources are Curr, Roth, Howitt, Mathew, Tennant-Kelly, Tindale and Holmer, as well as materials from the Mathew, Tennant-Kelly, Tindale and Howitt collections.
617 Dr Kenny considers there to be some general consistency in the written record in regard to the location of country associated with the Gaangalu “tribe” and/or language. The Mackenzie River and the lower Dawson River are usually said to be associated with Gaangalu as well as the Comet and Fitzroy Rivers.
618 Dr Kenny agrees with Dr de Rijke that Curr’s data is the only historical source for the Kanolu group label and that Tindale seems to have misheard or misinterpreted “Gangaalu” as “Kanolu”. In her view, it is likely that “Kanolu” is a variation of, or at the very least can be used today interchangeably with, the language label “Gaangalu/Kangalu”.
619 Dr Kenny concludes:
Overall the ethnographic record relating to the Gaangalu Nation People shows that it is not possible to establish with precision where borders might be drawn with any kind of accuracy, because the information is not detailed enough and uses place and natural features as convenient reference points rather than as clear bordermarkers. However, it can be said that there is sufficient evidence that places the bulk of the application area consistently in the general area.
Consideration of who were the Aboriginal people in occupation of the claim area at sovereignty
620 The State admits that at sovereignty and effective sovereignty, Aboriginal persons were present in, used and occupied the claim area. The State admits that the traditional laws and customs acknowledged and observed by those Aboriginal people conferred rights and interests in relation to the land and waters of the claim area, including land holding rights. The State also admits that the Aboriginal people present in, using and occupying the claim area included persons who were part of a regional society or societies.
621 The applicant contends that the Aboriginal persons present in and using and occupying the whole of claim area at sovereignty were Gaangalu people. Those people are said to be biological ancestors of the claim group.
622 The State disputes that the Gaangalu occupied any part of the claim area to the east of the Dawson River at sovereignty, other than in the vicinity of Banana.
623 The early ethnographic material, particularly the information provided to Curr and Matthews and by Gir-oonbah, consistently demonstrates that people identified as Gaangalu occupied the central and the north-western part of the claim area at about the time of effective sovereignty. These areas include the Lower Dawson, the Upper Fitzroy, and the Mackenzie Rivers and the eastern slopes of Expedition Range, and are depicted in the maps compiled by Dr de Rijke.
624 Curr’s informant, McIntosh, for example, described the “Kaangooloo” as, “inhabiting the country on the eastern slopes of the Expedition Range, the Lower Dawson, the Upper Fitzroy, and the Mackenzie Ranges and their tributaries”.
625 The Mackenzie River flows east, forming the northern boundary of the claim area. The Dawson River flows north and joins the Mackenzie River to flow into the Fitzroy River. The Expedition Range is to the west of the Dawson River. Accordingly, the areas described in the early ethnographic material as occupied by the Gaangalu were generally to the west of the Dawson River.
626 The people in occupation of these areas were apparently identified by Europeans as “Gaangalu” through the name they were collectively known by, the common language they spoke (also called Gaangalu) and the areas they occupied. McIntosh described the Kaangooloo as inhabiting certain country and “all speaking the same Thaa or tongue”. At the time of effective sovereignty, as will be discussed, the Gaangalu people consisted of a number of clan groups each occupying and having responsibility for particular estates within the claim area.
627 It should be recognised that there are likely to have been laws and customs, not apparent to European observers, which distinguished Gaangalu people from other Aboriginal people in the region. It seems likely those distinguishing features included mythology placing the Gaangalu and their language within particular tracts of country. The ethnographic material does not explain what the distinguishing factors may have been.
628 It may also be noted that that not all Gaangalu language speakers may have necessarily been Gaangalu people, since many Aboriginal people spoke two or three languages.
629 Dr de Rijke expresses the opinion, which I accept, that Tennant-Kelly’s field notes provide, “convincing data” to support a view that Gaangulu territory extended west beyond the claim area, as far as Emerald. The material does not explain why the claim area does not encompass those western areas.
630 While Curr describes a group of “Kanoloo” people “on the head of the Comet River”, that area is otherwise considered part of Gaangulu country in the ethnographic record. Tindale also placed a group called “Kanolu” in the western part of the claim area. I accept the opinions of Dr de Rijke and Dr Kenny that the words “Kanoloo” and “Kanalou” probably reflected a mispronunciation of “Gaangalu”. I find that there was no separate group of “Kanoloo” and “Kanalou” people.
631 I accept that, at sovereignty and effective sovereignty, the Gaangalu occupied the parts of the claim area to the west of the Dawson River. As I will discuss, they did so under their traditional laws and customs.
632 The applicant also contends that the claim area to the east of the Dawson River, encompassing towns such as Mount Morgan, Biloela and Thangool, was also always Gaangalu country, although possibly shared with the Darrambul people. The ethnographic evidence concerning Gaangalu occupation of the parts of the claim area to the east of the Dawson River at effective sovereignty is sparse.
633 I accept that Gaangalu people occupied an area that may be described as east of the Dawson River in the very northern part of the claim area, described by some witnesses as the “Three Rivers”, “Three Waters”, or “Three Ways”, which is the area where the Mackenzie and Dawson Rivers flow into the Fitzroy River.
634 In Dr de Rijke’s opinion, the steep mountain range on which Mount Morgan is now located was probably a boundary area, or transition zone, between the coastal group located around Rockhampton and the inland Gaangulu. He considers that the Mount Morgan area may have functioned as a meeting place between Gaangalu and Darrumbal. He argues that Aboriginal territorial boundaries are, generally speaking, best understood as zones of transition rather than narrowly defined lines on a map. He indicates that he is unable to determine the extent of any transitional zone covering the Mount Morgan area.
635 Dr Kenny’s opinion, based on her view that transitional zones were common in Aboriginal Australia, is that, “it is possible that Gaangalu people were there [in Mount Morgan] at the time, probably, most likely visiting”.
636 Dr de Rijke states that, “Tindale’s work and Jefferies’ analysis of Mount Morgan and Bennett’s Mount Spencer wordlist are the chief sources for the designation of this area as Gangulu territory at effective sovereignty”. The State submits that Jefferies’ opinion is inadmissible or, alternatively, cannot be given any weight, and that Tindale’s opinion is inconsistent and unsupported.
637 The Mount Spencer wordlist dates from 1919 when F Bennett collected the list from, “a very old blackfellow, the last of the Lower Dee blacks”, who was said to come from the Mount Spencer area. Bennett thought the tribe of the Lower Dee was a small one and located in a small area. Bennett did not describe the tribal identity of his informant.
638 In 2006, Jefferies, a linguist, concluded that the Mount Spencer wordlist was Gaangalu. He stated that the Mount Spencer dialect is from an area that falls within the orbit described by McIntosh for the Kaangooloo Thaa, albeit on the periphery of where this dialect was spoken. Jefferies identified Bennett’s wordlist as containing Gaangalu words, and his analysis supports the proposition that people speaking the Gaangalu language occupied the Mount Spencer area.
639 The State submits that it is impermissible for Dr de Rijke to support his opinion that Gaangalu may have occupied the Mount Morgan area by relying on Jefferies’ analysis. I understand the submission to be that as Dr de Rijke is not an expert linguist, he cannot, in effect, give an expert linguistic opinion by adopting the opinion of an expert linguist. However, Jefferies’ opinion that the wordlist was Gaangalu was not submitted to be inadmissible, for example, on the basis that it was hearsay or impermissible opinion evidence. From that unchallenged evidence, Dr de Rijke drew the conclusion that the, “Gangulu language was likely spoken in the vicinity of Mount Morgan and Mount Spencer”. In my opinion, Dr de Rijke’s conclusion concerning the Gaangulu language being spoken in the vicinity of Mount Spencer is admissible evidence.
640 I observe that Jefferies’ publication is labelled “draft’. His writing also tends to make unwarranted and excessive use of the word “undoubtedly” when drawing an inference, even where he cites little evidence, or weak evidence, in support of the conclusion. I approach Jefferies’ analysis with some caution.
641 However, on the basis of Jefferies’ analysis, I find that the Gaangalu language was spoken by people occupying the Mount Spencer area at about effective sovereignty. In the absence of evidence that another language was also spoken there, I infer that the people who occupied that area were probably Gaangalu.
642 Dr de Rijke seems to extrapolate from the fact that Gaangalu was spoken in the Mount Spencer area at about effective sovereignty, a conclusion that Gaangalu must also have been spoken in the Mount Morgan area. Even making some allowance for a possible “zone of transition”, the evidence that Gaangalu people occupied, and had rights and interests in, the Mount Spencer area does not support an inference that they occupied or had rights and interests some 44 km away in the Mount Morgan area.
643 Dr de Rijke’s view that Gaangalu was spoken in the Mount Morgan area at effective sovereignty may also rely on Jefferies’ comments that the Mount Morgan area was, “undoubtedly a transitional area between Darambul speakers on the Dee and Don Rivers”; and that the Wollea-burra, “undoubtedly were a Gaangalu-speaking people”. Jefferies does not indicate the basis for these opinions, although his article does refer to a book, apparently published in 1982, entitled Centenary of the Town of Mount Morgan 1882-1982, a chapter of which is entitled, Place Names in the Mount Morgan District and their Origins. The chapter apparently contains a wordlist consisting of 12 items, and Jefferies states that, “all of which that can be compared are Gangalu”. The chapter and the wordlist are not in evidence. There is a paucity of information concerning the wordlist, including the identity of the person who provided it, that person’s source of knowledge, and when it was compiled. Such information would be important to an understanding of when the Gaangalu language came to be spoken in the Mount Morgan area, particularly as Dr de Rijke considers that the establishment of the Mount Morgan gold mine and associated town likely attracted Aboriginal people from the region. In my opinion, the evidence fails to establish that Gaangalu was spoken in the Mount Morgan area at effective sovereignty. Further, the evidence simply does not establish that the Wollea-burra were a Gaangalu clan.
644 In 1940, Tindale described the area he attributed to the Gaangalu and then stated that, “the Don River, Mount Morgan, East of Banana and about Rannes may have belonged to a separate tribe”. In 1974, Tindale changed his opinion, describing Gaangalu country as extending, “[e]ast to Biloela, Mount Morgan, Gogango Range, and the upper Don River…”. An additional reference cited by Tindale in 1974 was Bennett’s Mount Spencer wordlist. Dr de Rijke suggests that Tindale regarded the Bennett wordlist to be Gaangalu, and on that basis disagreed with the description by Roth and Flowers of the territorial groups and boundaries in the Mount Morgan region. However, that supposition does not explain why Tindale now considered that Gaangalu country extended to Mount Morgan. Further, Tindale’s view that Gaangalu country extended east as far as Biloela, Mount Morgan, Gogango Range, and the upper Don River is unexplained and unsupported by any material he cited. In addition, it is uncertain whether Tindale was aware of Roth’s 1898 paper concerning the Aboriginal people of Mount Morgan.
645 It may be noted that Dr de Rijke contends, and I have accepted, that another aspect of Tindale’s revision in 1974 - that there was a separate group called the “Kanalou”, who occupied the north-western part of what is now the claim area - was erroneous and should be rejected. That error is probably reflective of the absence of firm ethnographic and direct evidence in respect of the claim area, but, significantly, demonstrates that Tindale’s opinions in respect of the extent of Gaangalu country cannot be regarded as entirely reliable.
646 Tindale’s 1974 view is inconsistent with the description given by McIntosh of Gaangalu country as extending to the eastern slopes of Expedition Range. The Expedition Range is west of the Dawson River. The benefit of McIntosh’s observations is that he had contact with Gaangalu people in the 1870’s and knew them well enough to learn some of their language. I regard McIntosh’s observations as the most reliable indication as to the eastern extent of Gaangalu country at effective sovereignty, subject to areas east of the Dawson River which I will discuss. It is significant that none of the early ethnographic material associated the Gaangalu with areas east of the Dawson River such as Mount Morgan, Biloela, and Thangool, and that is inconsistent with the Gaangalu occupying or having rights and interests in those areas.
647 Further, Tennant-Kelly’s 1934 field notes show that her Gaangalu informants, Charlotte Costello and Harriet Mummins, described the Gaangalu as being in areas from Emerald to Duaringa and the Dawson River.
648 The applicant also relies on evidence of descendants of two of the named apical ancestors as evidence that the whole of the area to the east of Dawson River was occupied by Gaangalu people at sovereignty. Those ancestors are William Toby (whom I will describe as William Toby I) and Mary Ann Crook (Lamb).
649 I conclude that Mary Ann Crook was not Gaangalu and did not have traditional rights and interests in the Mount Morgan area. I will explain my reasons for this conclusion later in these reasons. The consequence is that Mary Ann Crook’s association with Mount Morgan does not provide evidence that the Gaangalu had rights and interests in the Mount Morgan area at effective sovereignty.
650 I accept that William Toby I was Gaangalu, as will be explained. A number of descendants of William Toby I gave evidence in the proceeding. Their evidence is to the effect that they have been told by older generations of their family that the claim area east of the Dawson River is Gaangalu country.
651 Dr Maclean’s first report indicates that William Toby I was born between 1851 and 1859 at Banana and died on 25 December 1911 at Banana. Banana is east of the Dawson River, and in the vicinity of 100 km to the south-west of Mount Morgan. William had seven children, each of whom was born in Banana.
652 Many of the grandchildren of William Toby I were born at Banana, south of Banana, or places north of Banana but still substantially south of Mount Morgan.
653 The fifth child of William Toby I was named William Toby II. He was born in about 1894 at Banana. He died in 1947, and was buried at Mount Morgan. William Toby II married Rosina Lamb (daughter of Samuel Lamb and Mary Ann Crook, who was born in the Mount Morgan area in 1894). They had five children. Their first child, William Toby III was born in Mount Morgan in 1923; their second, Edward Samuel Houston, was born in Banana in 1926; their third, Gordon Roy Toby, was born near Mount Morgan in 1928; their fourth, Robert Henry Toby, was born at an unstated place in 1932, but died at Mount Morgan in 2009; their fifth, Elvie May Toby, was born at an unstated place in 1934, but was buried in 1958 in Mount Morgan. I infer that William Toby II moved from Banana to Mount Morgan sometime after the turn of the century, before returning to Banana, and then moving back to Mount Morgan.
654 The eldest child of William Toby II, known as William Toby III, was born on 15 October 1923 at Mount Morgan. In 1993, William Toby III told an amateur anthropologist, Betty Cosgrove, that Gaangalu country included the Mount Morgan range, but also said it encompassed Monto, a view not supported by any other evidence. Earlier, in an address given on 10 November 1990 to mark the repatriation of Indigenous skeletal remains to Mount Morgan from Scotland, William Toby III had expressed uncertainty, saying:
Before white man came, sections of the country now known as Mount Morgan could have belonged to one of three tribes, the Gungulu tribe, the Biaili tribe or the Tarumbul tribe. ... This is all part of history that we will be looking at now and trying to recognise some of the great traditions of the past.
655 In the same address, William Toby III identified his father as, “a Gunglu tribal man”, and his mother as, “belonging to the Biaili tribe from the Mount Morgan area”. The specific reference to his mother’s people, but not his father, as being from the Mount Morgan area tends to suggest that Mr Toby III thought the Gaangalu were not from that area.
656 Mr Toby III also said in an audio recording in the mid-1990’s:
Granny Lamb and her tribal people used to live at Mount Morgan. Would walk from Westwood to Mount Morgan and camp at the mouth of Cattle Creek, on the Dee River. This was Granny Lamb’s tribe, Bayali tribe. That is what I believe anyhow.
Our land is Banana…
657 In this passage, Mr Toby III seemed to distinguish between Gaangalu people whose land was at Banana and Bayali people whose land was at Mount Morgan.
658 In view of these statements, I do not accept that information passed on by William Toby III to his descendants indicating that Mount Morgan was Gaangalu country can be regarded as reliable.
659 Mona Barry, a grand-daughter of William Toby I, was born in Woorabinda in 1931. She was significantly older than the other witness descendants of William Toby I. She describes Gaangalu country as, “around Banana, the Dawson River, Moura”. Significantly, this description does not encompass the Mount Morgan area.
660 There is in evidence a letter dated 11 January 1993, stating that the Lands Branch, “had been approached by a Mr Robert Henry Toby of Mount Morgan who said that he was one of the oldest surviving members of the Gungulu tribe who formerly lived in an area south of Mount Morgan incorporating Biloela, Banana and Theodore”. Mr Toby provided a map outlining the relevant area. Mr Toby’s description refers to an area “south of Mount Morgan”, not Mount Morgan itself. Theodore is outside the claim area. The available ethnographic evidence does not support the proposition that the Gaangalu occupied the Biloela area at sovereignty. The letter cannot be given any significant weight.
661 The fact that William Toby I and his children were born in Banana and that there is no record of the Toby family in Mount Morgan until after the turn of the century is inconsistent with the proposition that Mount Morgan was Gaangalu country through the Toby descent line at effective sovereignty. I am unable to accept the evidence of the lay witnesses based on information from their forebears to the effect that areas including Mount Morgan, Biloela and Thangool were traditionally occupied by Gaangalu people.
662 The State is willing to accept from the fact of the birth of William Toby I in Banana in the 1850s that Banana was Gaangalu country at effective sovereignty. While the State’s reasoning may be open to doubt, I will adopt the approach that where there is no dispute concerning a part of a claim, the Court is required to be satisfied only that the State has given appropriate consideration to the evidence that has been adduced: cf Munn for and on behalf of the Gungarri People v State of Queensland (2001) 115 FCR 109; [2001] FCA 1229 at [29]-[30] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37]-[38]. I am so satisfied, and therefore accept that the Banana area was occupied by the Gaangalu at effective sovereignty.
663 The State relies on Tennant-Kelly’s 1938 field notes which state, “Mount Morgan Darambul-Rockhampton (Sunny Sunflower) no marry”. The State submits that this note indicates that Tennant-Kelly was told that Mount Morgan was Darrambul country. The note may have the meaning contended for by the State, but it is also capable of carrying other meanings. For example, it could indicate that the Darrambul were from Rockhampton. I consider the note to be too uncertain to accept that it means that the Darrambul had rights and interests in the Mount Morgan area at sovereignty.
664 The State relies on Roth’s 1898 report as providing the only other early ethnographic record concerning Mount Morgan. The State submits that Roth’s report shows that at effective sovereignty only the Darrambul people, and not the Gaangalu, had rights and interests in the Mount Morgan area. Roth stated that, “[t]hese blacks here are of Rockhampton and Gracemere parentage, the local (original) Wollea-burra, whose ‘walk-about’ extended out towards the Prairie and Banana way having been exterminated”. Roth considered the Wollea-burra to be a sub-group of the Warrabal people. He makes no reference to the Gaangalu being in the area at that time or any earlier time.
665 Dr de Rijke doubts the accuracy of Roth’s depiction of the Wollea-burra as a Warrabal subgroup, and states that if that were correct, the Wollea-burra would be separated from the remainder of the coastal plain Warrabul. He observes that the suffix “burra” or “bara” refers throughout eastern Australia to a localised land using group or “horde”. The name of “Wollea-burra” does not reveal the language group of the original inhabitants of the Mount Morgan area.
666 Dr Kenny’s report sets out a map drawn by Roth in 1898 based on information from William Flowers’ 1881 map, depicting the Warrabul (Warrabal) as being inland from the coast and as encompassing the Mount Morgan area. Dr de Rijke may, by his reference to the separation of the Wollea-burra from the “coastal plain” of Warrabal, mean only that they were separated by the steep range north-east of Mount Morgan, rather than suggesting that the Warrabal were coastal people. As Dr Kenny acknowledges, Flowers’ and Roth’s data indicated that the Wollea-burra were the Warrabul’s southern local group, although Mount Morgan was also associated with the Warraburra, a local Taroombul (Darambul) group.
667 Dr de Rijke and Dr Kenny criticise reliance on information provided by Flowers in circumstances where his pastoral holding was to the north of Rockhampton. However, Roth’s record of tribal subgroupings and their residential groups is detailed, indicative of a good deal of care in conducting his research. I infer that Roth’s inquiries of Flowers must have satisfied him that Flowers’ opinions and map were sufficiently accurate to be adopted. An paper in evidence entitled Habits, Customs and Relationships of the Australian Aboriginals presented by WH Flowers in 1956 was compiled by from notes written many years before by his uncle, William Flowers, who was described as having made a careful study of these people, and that is borne out by the content of the paper. In assessing Roth’s opinion against the criticisms made by the anthropologists in this case, I note that Roth had the advantage of being present at Mount Morgan roughly 50 years after sovereignty. I consider that the views of Flowers and Roth that the occupants of the Mount Morgan area at sovereignty were Warrabal should not be rejected without an adequate foundation for that rejection being established.
668 Dr de Rijke’s views that the Mount Morgan area was probably a transition zone between the coastal group located around Rockhampton and the Gaangalu and may have functioned as a meeting place between Gaangalu and Darumbal, is largely based on the geographical feature of the steep range, rather than any firm ethnographic, historical or other evidence. The geography may be given some weight, but I do not consider it adequate, without more, to displace Roth’s opinion, based on information from Flowers. It may be noted that the geographical feature of the Dawson River did not prevent the Gaangalu from occupying some areas of land to its east. Dr de Rijke’s view that the Wollea-burra, the original occupants of that area, may have been a land holding group within the broader Gaangalu language domain is speculative.
669 I consider it significant that Roth did not mention the Gaangalu as either having lived at or travelled to Mount Morgan either in the past or at the time he was writing. That may be contrasted with Roth’s express references to the Warrabal and the Darrambul. That omission from a carefully written report indicates that Roth did not did not make any observation of Gaangalu people in the area in 1897 and did not uncover any information suggesting that the Gaangalu had been in the area in the past.
670 Dr de Rijke concludes, rather tentatively, that, “in absence of convincing materials to suggest otherwise, it is my opinion that Mount Morgan and the area of the Don and Dee Rivers are appropriately included in the GNP native title claim”. A part of the difficulty with acting upon that opinion is that it would invert the onus of proof.
671 Having regard to the whole of the evidence, I do not accept the view expressed by Tindale and Jefferies, adopted by Dr de Rijke, that Gaangalu country extended as far east as Mount Morgan at sovereignty.
672 I accept that Gaangalu people occupied the areas of Banana and Mount Spencer, east of the Dawson River, at effective sovereignty and sovereignty. I am prepared to infer that the Gaangalu occupied others areas along the eastern bank of the Dawson River, including Baralaba. In so concluding, I give some weight to my conclusion that Lizzie Tiger, who was born at Baralaba in the 1860’s, was Gaangalu.
673 However, the evidence fails to demonstrate that the Gaangalu occupied any areas further to the east. In particular, I am not satisfied that they occupied areas encompassing Mount Morgan, Biloela and Thangool at sovereignty.
674 I find that at effective sovereignty and sovereignty Gaangalu people used and occupied the parts of the claim area to the west of the Dawson River, and also some areas to the east of the Dawson River. I accept that such occupation and use was under their traditional laws and customs.
675 The Originating Application asserts that the native title claim group comprises all persons who are biologically descended from 29 named deceased ancestors, all of whom are recognised by the living Gaangalu claim group members as having been Gaangalu. There may be some circularity in that description, but the State did not take that point.
676 Section 225(a) of the NTA requires that a determination of native title specify, “who the persons, or each group of persons, holding the common or group rights comprising the native title are”. Since the applicant contends that the members of the claim group have inherited the claimed native title rights and interests through biological descent, it is necessary to consider whether the 29 named ancestors possessed rights and interests in the claim area. As the applicant claims that the people who occupied and possessed rights and interests in the whole of the claim area at sovereignty were Gaangalu, it must be considered whether the named ancestors were in fact Gaangalu.
677 A summary of the State’s position as to whether the 29 ancestors were Gaangalu and possessed rights and interests in the claim area is provided in the following table:
Apical Ancestor | Area of Association | Associated Group | State’s position |
Maggie of Dingo | Born at Dingo; associated with Wooroona, Woorabinda and Duaringa | Kangalu/ Konglulu | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Biddy of Woorabinda | Associated with Woorona | None | Not accepted |
Sandy of Wooroona | Associated with Wooroona | None | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Henry William of Duaringa | None | Kangalu | Not accepted |
Jack of Coomooboolaroo | Born at, and associated with, Coomooboolaroo Station | Kangalu | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Billy Mickelo | Both recorded children born at Duaringa | Kangalu | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Anne Anderson | None | None | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Claude Anderson | Born at Coomooboolaroo Station | Gangalu speaker | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Rose Ann Tyson | Born at Comet Downs; both recorded children born at Bluff | None | Not accepted |
Biddy (wife of Jumbo) | Comet Downs | None | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Lizzie Tiger | Born at, and associated with, Baralaba | None | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Blanche of Duaringa | Born at Duaringa | None | Not accepted |
Annie French | Born at, and associated with, Blackwater | Kangalu | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Polly Doctor | None | None | Not accepted |
Annie of Orion Downs | None | Kangalu | Not accepted |
Peter Tyson | None | Kangalu | Not accepted |
Lily of the Mackenzie River Bench | None | Kangalu | Not accepted |
Violet Thompson | Born at Emerald | Kangalu | Not accepted |
Jenny Doctor | Born at, and associated with, Emerald | None | Not accepted |
Queenie Hart of Duaringa | None | None | Not accepted |
Charlie, Willie and George Riley | None | None | Not accepted |
Lily/Lilla Livingstone | Born at Banana | None | Not accepted |
William Toby | Born at, and associated with, Banana | Kangalu | Accepted as more likely than not a member of the group whose traditional land or waters were in the claim area |
Nellie of Planet Downs | None | Kangalu | Not accepted |
Myra Freeman | Born at Planet Downs Station | Wadja | Not accepted |
Sarah Dodd | Born at Banana | None | Not accepted |
Mary Ann Crook | Recorded as born at Gracemere Associated with Mount Morgan | None | Not accepted |
678 Maggie of Dingo was born at Dingo in the claim area on a date not before 1862 to 1868. She was associated with Wooroona, Woorabinda and Duaringa.
679 In the 1930s, Maggie of Dingo was identified as Kanjulu by Tindale and as Konjulu by Joseph Birdsell. Her children were Willie Kemp, who was identified as Kanjulu by Tindale, and Florrie Kemp.
680 The witnesses Steven Kemp, Margaret Kemp, Desmond Hamilton and Patricia Leisha are descendants of Maggie of Dingo.
681 Drs de Rijke, Maclean and Kenny all consider that Maggie of Dingo was more likely than not Gaangalu.
682 I accept that Maggie of Dingo was Gaangalu.
683 Biddy of Wooroona was born before approximately 1861 at an unidentified place. She was the mother of Earl, Charles White and Duke White, born at Wooroona Station, within the claim area.
684 Drs de Rijke, Maclean and Kenny consider that Biddy of Wooroona was Gaangalu. However, Dr Kenny notes that there is no linguistic or tribal identity or documentary evidence showing Biddy’s connection to country or any tribal group.
685 Priscilla Iles is the only decedent witness. Ms Iles states that her father, Cedric White, was the son of Prince White. Dr Maclean lists both Cedric and Prince White as descendants of Sandy of Wooroona.
686 The State submits that the evidence does not support a finding that Biddy of Wooroona’s traditional country was within the claim area. Its basis is that limited weight can be attributed to oral history that associates this descent line with Wooroona or the Gaangalu people. The State submits that, first, evidence was provided from one witness descendent who is not recorded as a decedent of Biddy by Dr Maclean, has not resided on or near Wooroona for a significant period of time, and did not give evidence of Biddy’s country specifically and who follows her Iman line more strongly. Second, the only documentary evidence referred to by Dr Maclean for Biddy is the marriage and death certifications of her son, Duke White. The State assumes that they were silent as to the details of Biddy’s place and date of birth. Third, Wooroona and Wooroona Station were places where Aboriginal people were employed, likely from different language groups, in the period after effective sovereignty. In the absence of no other supporting evidence, the State submits that little weight can be placed on Biddy’s son, Prince White’s, association with the area to support the inclusion of her as an apical ancestor.
687 The oral history recounted by Patricia Iles, together with the fact that Biddy of Wooroona was living within the claim area very shortly after effective sovereignty, satisfies me that she was probably Gaangalu.
688 Sandy of Wooroona was born before approximately 1859 at an unidentified place. He was buried in Wooroona. Sandy was the father of Prince and Kruger White, both born at Wooroona, and Constance White, born at Duaringa.
689 Drs de Rijke, Maclean and Kenny all consider Sandy of Woorona to have been Gaangalu, but Dr Kenny notes that there is no documentary evidence showing Sandy’s connection to country or belonging to a tribe.
690 Rodney Jarro claims his Gaangalu connection from both Sandy of Wooroona and Nellie of Planet Downs. Mr Jarro’s mother was Rachel White, who was the daughter of Prince White. Prince was the son of Sandy. Mr Jarro follows the bloodline of Prince White because he grew up in Woorabinda, formerly Wooroona.
691 Cedric White asserts that he is Gaangalu through his descent from Sandy of Wooroona. Mr White’s father was Cedric White and his grandfather was Prince White of Wooroona. Prince White had an exemption and was not required to live in Woorabinda and instead lived at White’s Camp on the Dawson River. Mr White states that Sandy of Wooroona is widely accepted and acknowledged by Gaangalu people as having been Gaangalu.
692 Patricia Leisha is not a descendent of Sandy of Wooroona but knew Kruger White, the son of Sandy of Wooroona. Ms Leisha says that Kruger White was Gaangalu. She was told that Kruger White’s parents were Sandy of Woooroona and Rosie.
693 I accept that Sandy of Wooroona was Gaangalu.
694 Henry William of Duaringa was born before 1874 at an unidentified place. He was identified in November 1938 as Kanjulu by Tindale. He was the father of Paddy Williams, who was born at Yarrabah and died in Woorabinda. Henry William of Duaringa was not identified as an ancestor or mentioned by any lay witnesses.
695 Drs de Rijke, Maclean and Kenny consider that Henry William was Gaangalu. Dr Kenny concludes that Henry William is an apical ancestor based on Henry William’s tribal identification by Tindale as Kanjulu and association with Woorabinda to Duaringa and Springsure, as well as his son, Paddy, being identified as Kanjulu.
696 The State submits that the evidence does not support a finding that Henry William of Duaringa’s traditional country was within the claim area based on the lack of oral history that associates this descent line with the claim area or the Gaangalu people, that no lay witnesses discuss Henry Williams as an apical ancestor, and the ethnographic material relied upon by Dr Maclean is a genealogy by Norman Tindale which shows that Henry Williams resided on Palm Island but worked in Duaringa.
697 I place weight on Tindale’s identification in 1938 of Henry William of Duaringa as Kanjulu and his son’s later identification as Kanjulu. I accept that he was Gaangalu.
698 Jack of Coomooboolaroo was born between 1868 and 1878 at Coomooboolaroo Station. He was the father of Jack (John) Mack and Gypsy Mack, both born at Coomooboolaroo.
699 Tindale identified Jack and Gypsy Mack as Kanjulu. Drs de Rijke, Kenny and Maclean all consider that Jack of Coomooboolaroo was Gaangalu. Dr Kenny accepts Jack as Gaangalu based on Tindale’s identification and the fact the matter is uncontested by the claim group members.
700 The descendants of Jack include the Tyson, Williams, Goram, Grey and Hopkins families. Lillian Harrison is the only lay witness who refers to Jack of Coomooboolaroo in her evidence, referring to him as the antecedent of the Williams and Hopkin families who are Gaangalu people.
701 I am satisfied that Jack of Coomooboolaroo was Gaangalu.
702 Billy Mickelo was born before 1886 at an unidentified place. He was identified as Kanjulu by Tindale.
703 Drs de Rijke, Maclean and Kenny consider that Billy Mickelo was Gaangalu. Dr Kenny accepts Billy as an apical ancestor based on his tribal identification by Tindale as Kanjulu and “full blood” and the fact that the matter is uncontested by other claim group members.
704 Billy Mickelo was the father of Ulallo Walter Mickelo, born at Duaringa, and Paddy Mickelo, born at Pearl Creek in Duaringa. Dr Maclean opines that Stanley Mickelo was the son of a Gaangalu woman, Eva, and a white man with the surname Dunn, but was raised by Billy Mickelo.
705 Peter Mickelo says that he is Gaangalu through his great grandfather Billy Mickelo, who was the father of his grandfather. Mr Mickelo gave evidence that Billy was reared by a white family after his family were slaughtered around Taroom and he had two sons whom were both reared by white people but knew that they were Gaangalu.
706 I am satisfied that Billy Mickelo was Gaangalu.
707 Anne Anderson was born before 1894 at an unidentified place. Anne was the mother of Susie, Moses and Tim Mason. Susie Mason was identified as Kanjulu by Tindale in the 1930s. Moses Mason was born at Coomooboolaroo in 1909 and Tim Mason was born at Duaringa in 1913.
708 Claude Anderson was born at Coomooboolaroo Station in about 1879 to 1897 and was the sibling of Anne Anderson. Claude was identified as a Gaangalu speaker by linguist Nils Holmer.
709 Drs de Rijke, Maclean and Kenny consider that Claude and Anne Anderson were more likely than not Gaangalu apical ancestors.
710 Lynette Anderson asserts that she is Gaangalu through her mother Elizabeth Mitchell, the daughter of Moses Mason, and her great grandmother Anne Anderson.
711 Samantha Neilson asserts that she is Gaangalu through her great grandfather, Claude Anderson.
712 I accept that both Claude and Anne Anderson were Gaangalu.
713 Rose Ann Tyson was born in about 1878 at Comet Downs within the claim area. Rose married Henry Black and had six children, including Kathleen and James Black, both of whom were born in the claim area at Bluff in 1909 and 1913 respectively. Kathleen’s children were all born in, and both Kathleen and James died in, Rockhampton.
714 Drs de Rijke and Maclean consider that Rose Anne Tyson was Gaangalu. Dr Kenny was unable to accept that Rose was more likely than not an apical ancestor. This opinion remained unchanged following joint expert conferences.
715 There are no descendant witnesses nor direct evidence given by the lay witnesses about Rose Ann Tyson.
716 The State submits that the evidence does not support a finding that Rose Anne Tyson’s traditional country was within the claim area. The basis for this submission is that: there is no oral history that associates this descent line with the claim area; the only documentary evidence in Dr Maclean’s report that associates Rose Anne Tyson with the claim area is a reference to Blackwood who cites the burial register in support of her birth place being Comet Downs; and none of the lay witnesses discuss Rose Anne Tyson as an apical ancestor. While there is no evidence that the claim group disputes her inclusion, there is a lack of independent ethnographic record or clear agreement amongst members of the claim group.
717 I accept the State’s submissions. I am not satisfied that Rose Ann Tyson was Gaangalu.
718 Biddy (wife of Jumbo) was born before 1866 at an unidentified place. She was married to Jumbo (Jimbo). Biddy lived at Comet Downs in the claim area and was removed to Barambah (Cherbourg) with her five children when she was at least 17 years old and died in Barambah. Two of her children, Ned and Monica, were born in and resided in the claim area.
719 Drs de Rijke and Dr Maclean consider that Biddy was Gaangalu. Dr Kenny was unable to form a concluded view and this opinion remained unchanged following the joint expert conferences.
720 There are no descendant witnesses for this apical line and no direct evidence provided by the lay witnesses.
721 Due to Biddy’s birth at Comet Downs shortly after effective sovereignty and presence there over a significant period, I am satisfied that Biddy was Gaangalu.
722 Lizzie Tiger was born at Baralaba in the claim area between approximately1862 to 1869. Lizzie had at least 11 children, including Topsy Tiger, Pearl White and Charles Clark(e), all of whom were born at Blackwater. In the 1930s, Tindale identified Topsy Tiger as Kanjulu of Duaringa.
723 Drs de Rijke and Maclean considered that Lizzie Tiger was Gaangalu. Dr Kenny was unable to form a concluded view about Lizzie Tiger, while noting the identification of her descendants as Kanjulu of Duaringa by Tindale. This opinion remained unchanged following the joint expert conferences.
724 Elizabeth Jacobs described Topsy Tiger as her great grandmother and described how she knew Granny Topsy and they would talk about Blackwater, Comet and Bluff as places where they came from. Lillian Harrison referred to Lizzie Tiger as a Gaangalu ancestor and Rodney Jarro referred to her daughter, Topsy Tiger, in his evidence.
725 I accept that Lizzie Tiger was Gaangalu.
726 Blanche of Duaringa was born at Duaringa between 1875 and 1890. Blanche was at Blackwater in 1908 and was removed to Barambah in February 1923, lived with a child in Cherbourg between at least 1937 and 1940, worked at Glencoe Station between 1941 and 1943 and died at Eidsvold District Hospital in 1945. Blanche was the mother of Agnes Ross Kemp, who was born near Blackwater in about 1904 to 1908.
727 Drs de Rijke, Maclean and Kenny accept Blanche of Duaringa to be Gaangalu. Dr Kenny notes the lack of available documentary evidence of her linguistic or tribal identity.
728 There are no descendant witnesses for this apical line and no direct evidence was provided by the lay witnesses.
729 The State submits that the evidence does not support a finding that Blanche of Duaringa’s traditional country was within the claim area. There is no oral history that associates this descent line with the claim area or the Gaangalu Nation People and none of the witnesses discuss Blanche as an apical ancestor. In the absence of any oral history, the State relies on ethnographic material. The earliest dated documentary evidence referenced by Dr Maclean is from 1923, at least 67 years after effective sovereignty. The material includes Blanche’s death certificate and a Bundaberg Cemetery Burial Registry entry implying Blanche’s place of birth as Blackwater. Despite this, most of the material relates to places where Blanche worked and the documents for her children Agnes, Leslie and Eva do not appear to reference areas within the claim area.
730 I accept the State’s submissions. I am not satisfied that Blanche of Duaringa was Gaangalu.
731 Annie French was born at Blackwater in about 1865. She was removed from Blackwater to Barambah with her daughter Agnes in about December 1908. She was the sister of Biddy (wife of Jumbo) and the mother of Agnes and Lena French. In the 1930s, Tindale identified Annie as Kanjulu.
732 Drs de Rijke and Maclean consider that Annie French was Gaangalu. Dr Kenny was unable to form a concluded view about Annie due to the contested nature of her linguistic and tribal affiliation. After the second joint expert conference, Dr Kenny agreed that it was more likely than not that Annie had rights and interests in the claim area.
733 There are no witness descendants from this apical line. However, Lillian Harrison refers to Annie French as Gaangalu in her evidence.
734 The State submits that the evidence allows a finding that Annie’s traditional country was within the claim area. The basis for this is that the archival records show Annie’s presence and association with Blackwater and Barambah over a significant period, the birth of Lena French and the death of Agnes French at or near Comet Downs, and Annie’s likely birth date of about 1865 which is approximately a decade after sovereignty.
735 I am satisfied that Annie French was Gaangalu.
736 Polly Doctor was born in about 1863 at an unidentified place. Polly was at Blackwater in November 1908 with her four children Trixie, Alice, Arthur and Freda Doctor.
737 Dr de Rijke and Dr Maclean consider that Polly Doctor was Gaangalu. Dr Kenny was unable to form a concluded view due to the contested nature of her linguistic and tribal affiliation.
738 There are no descendant witnesses for this apical line. However, Lillian Harrison refers to Polly Doctor as being Gaangalu in her evidence.
739 The State submits that the evidence does not support a finding that Polly Doctor’s traditional country was within the claim area. The basis for this is that there is no oral history that associates this descent line with the claim reference. The only lay evidence is from Lillian Harrison who named the descendants from Polly Doctor as Gaangalu people who lived outside the claim area. None of the other lay witnesses discuss Polly Doctor as an apical ancestor associated with the claim area. The State observes that Dr Maclean says that there is no direct documentary evidence stating Polly’s membership to the Gaangalu language group; there is no evidence of her birthplace; the earliest documentary evidence of her location in the claim area regards the birth of her first child Trixie at Comet at least 30 years after effective sovereignty; and that only the birth places of two of her children are agreed between the parties. The only other documentary evidence shows that Polly and her four children were removed from Blackwater to Barambah in 1908. The State notes that there is no evidence that members of the claim group dispute her inclusion.
740 I accept the State’s submissions. I am not satisfied that Polly Doctor was Gaangalu.
741 Annie of Orion Downs was born before 1877 at an unidentified place. She was the mother of Jack Harrison who was born in Springsure or Orion Downs outside the claim area. Both Annie and Jack were identified as Kanjulu by Tindale in the 1930s.
742 Drs de Rijke and Maclean consider that Annie of Orion Downs was Gaangalu. Dr Kenny considers that Annie was a Kangulu woman associated with the GNP cluster, but was unable to state whether she was a forebear of Gaangalu People or Western Kangoulu People based on the available evidence. Following the joint expert conferences, Dr Kenny agreed that while Annie is mainly associated with the western part of the GNP cluster, she can be accepted as a Gaangalu apical ancestor because she is acknowledged by the claim group and her status is not contested.
743 Lillian Harrison says that she is Gaangalu through her grandfather, Jack Harrison Snr, who is the son of her great grandmother, Annie of Orion Downs. Ms Harrison says that her grandfather and her great grandmother were Gaangalu but were removed to Baramabah when Ms Harrison’s grandfather was about 12 or 13 years old. She said her grandfather worked at Orion Downs Station, Meteor Downs Station and Mantuan Downs Station and was taken to Cherbourg with his mother when he was about 12. Ms Harrison’s father, uncles and aunties were born and raised in Cherbourg but were known as Gaangalu.
744 The State submits that the evidence does not support a finding that Annie of Orion Downs’ traditional country was within the claim area. The only oral history is provided by one witness descendant. The State understands her evidence as saying that Lillian Harrison’s grandfather and Annie were living and working on stations outside of the claim area before being removed to Cherbourg. Moreover, there is limited evidence or knowledge of Annie or her son’s association with the claim area and besides Lillian Harrison naming the descendants of Annie, no other lay witnesses discuss her as an apical ancestor.
745 The State makes the following submissions based on ethnographic material. First, Dr Maclean asserts that there is enough documentary evidence to establish Annie’s identity, despite Annie not being named on the Tindale Genealogy Cherbourg 88 and a lack of other reference to documentary evidence to support this assertion. Second, Annie’s birth date of 1877 is 20 years after effective sovereignty but there is no evidence of her place of birth. Third, the earliest documentary evidence of her location is at Springsure, outside of the claim area. Fourth, the place of birth of Annie’s grandchildren are either not included in Dr Maclean’s report or are outside the claim area. Fifth, Dr Kenny observed that the Cherbourg Genealogy notes Annie as being associated with Orion Downs Station, outside of the claim area.
746 The State says that the connection of apical ancestors with a wide range of locations might be consistent with migration. In this case, due to limited oral history and a paucity of ethnographic material, it is unclear if Annie is from the claim area and migrated out, or whether her area of association was west of the claim area. The State also argues that although there is no evidence of claim group members disputing her inclusion, this is insufficient in light of the above evidence.
747 I rely on Tindale’s identification of Annie of Orion Downs as Kanjulu. I accept that she was Gaangalu.
748 Peter Tyson was born before 1892. He was the father of Harold Tyson, born in Rolleston in 1907, and Queenie Tyson, born before 1916 at an unidentified place. In the 1930s, Birdsell identified Peter Tyson as Kanalu and Kanjulu and Tindale identified Harold Tyson as Kanalu and Kanjulu.
749 Drs de Rijke and Maclean consider that Peter Tyson was Gaangalu. Dr Kenny found that he was more likely than not an apical ancestor but was unable to form a concluded view due to the contested nature of his linguistic or tribal affiliation. After the joint expert conferences, Dr Kenny agreed that it was more likely than not that Peter Tyson had rights and interest in the claim area.
750 Lynette Blucher and Deborah Tull are descendants of Peter Tyson (they are also descendants of William Toby I). Harold Tyson was Ms Blucher’s maternal grandfather. Ms Blucher gave evidence that while Peter Tyson was born in Consuela, outside the claim area, he was still Gaangalu.
751 The State submits that the evidence does not support a finding that Peter Tyson’s traditional country was within the claim area. The basis for this is that, first, there is limited oral history. Deborah Tull’s evidence regarding Peter Tyson is limited to stating her descent line from him. Lynette Blucher’s evidence includes her understanding that he is Gaangalu despite being born outside the claim area.
752 Second, there is limited evidence or knowledge of Peter Tyson’s association with the claim area. Evidence with respect to his son Harold indicates that he was born outside the claim area 50 years after effective sovereignty, with the only evidence linking him to the claim area being his marriage and presence in Woorabinda in the 1930s. The State notes that Woorabinda was a place where Aboriginal people from a number of different language groups were moved in the period after effective sovereignty.
753 Third, the ethnographic material indicates that: Peter’s date of birth was nearly 40 years after effective sovereignty; there is a lack of evidence of his place of birth besides Ms Blucher’s evidence; the earliest documentary evidence of Peter’s location being outside the claim area at least 50 years after effective sovereignty when Harold Tyson was born; and Queenie Tyson’s place of birth being unknown and her place of death, Barambah, being outside the claim area. The State argues that due to the limited oral history and paucity of ethnographic material, it is unclear if Peter Tyson is from the claim area. It also submits that despite the fact no disputes exist over his inclusion, the mere fact of some association with the area or that some segments of the community acknowledge him is not sufficient to establish that Peter Tyson is an apical ancestor of the claim group.
754 I place weight upon the identification by Birdsell and Tindale of Peter and Harold Tyson respectively as Gaangalu. I am not satisfied that Peter Tyson was Gaangalu.
Lily of the Mackenzie Riverbend
755 Lily was born before 1891 at an unidentified place. She was the mother of Gerald Huey, who was born at Blackwater in 1906. Tindale identified Lily as Kanjulu in the 1930s.
756 Lily is accepted as Gaangalu by Drs de Rijke, Maclean and Kenny. Dr Kenny concludes that Lily was more likely than not a Gaangalu apical ancestor based on Lily’s tribal identification by Tindale, but notes that reliance upon archival materials to substantiate matters of connection or identity is highly problematic.
757 There is no evidence provided by lay witnesses regarding Lily.
758 The State submits that the evidence does not support a finding that Lily of Mackenzie Riverbend’s traditional country was within the claim area. This is based on a lack of oral history that associates the descent line with the claim area. Instead, the State focused on ethnographic material, including that Lily’s date of birth is 1891, nearly 40 years after effective sovereignty; a lack of evidence of her place of birth; the earliest documentary evidence of her location in the claim area relates to the birth of her son at Blackwater, at least 50 years after effective sovereignty; and Tindale’s identification of Lily as Kanjulu 80 years after effective sovereignty with no oral history in support. The lack of dispute of her inclusion by the claim group and the mere fact that there was some association with the area and acknowledgement of her as part of the group is not probative of the fact that is she is an apical ancestor of the claim group.
759 I place weight on Tindale’s identification in the 1930s of Lily as Kanjulu. I accept that she was Gaangalu.
760 Violet Thompson was born around 1903 at Emerald or Kilarney Station. She was the mother of Erik and Claude Thompson. Violet was identified as Kanjulu by Tindale in the 1930s.
761 Drs de Rijke and Maclean consider that Violet was Gaangalu. However, Dr Maclean acknowledges that there is a degree of uncertainty regarding her parents and discrepancies between marriage and death certificates. Dr Kenny concluded that Violet was a Kangulu woman mainly associated with the western part of the GNP cluster area based on her identification by Tindale, the limited material, and her uncontested status as an ancestor. However, Dr Kenny was unable to determine if Violet was more likely than not a forebear of the Gaangalu or Western Kangoulu. Following the joint expert conference, Dr Kenny accepted that Violet was an appropriate Gaangalu ancestor.
762 There are no descendant witnesses for this apical line and no direct evidence was given by the lay witnesses.
763 The State submits that the evidence does not support a finding that Violet Thompson’s traditional country was within the claim area. The basis of this submission is that there is no oral history that associates this descent line with the claim area or the Gaangalu Nation People, Dr Kenny’s revised opinion is based on Violet’s uncontested status amongst the claim group, and no lay witnesses describe Violet as an apical ancestor associated with the claim area.
764 Moreover, the ethnographic material considered by the experts is indeterminate. First, Dr Maclean noted the uncertainty regarding Violet’s parents. Second, the Tindale genealogy only describes Violet as a full blood Kangulu woman born at Emerald. Third, Dr Maclean’s report identifies discrepancies when comparing marriage and death certificates that name Violet.
765 The State accepts that while no lay witnesses describe Violet Thompson as an apical ancestor, there is no evidence that the claim group disputes her inclusion. However, the State argues that this is insufficient if the person does not have relevant ancestry within that group by their law and custom. Further, the State asserts that even if the Court accepts that Violet had an association with Emerald or Kilarney Station, she also had a connection to Rockhampton. The State has asserted that due to the limited oral history and paucity of ethnographic material, it is unclear if Violet was from the claim area and migrated out, or whether her area of association was west of the claim area.
766 The State submits there where the Court is required to rely on the ethnographic material, the inconclusive material is not a sufficient basis to support the experts’ proposition that she is a Gaangalu apical ancestor due to her uncontested statue amongst the claim group.
767 Despite the uncertainty of Violet Thompson’s area of association, I, again, place weight on her identification as Kanjulu by Tindale in the 1930s. The evidence of Dr de Rijke indicates that at sovereignty, Gaangalu country is likely to have extended to Emerald. I accept Violet Thompson was probably Gaangalu. However, I do not accept that she had rights and interests in the claim area.
768 Jenny Doctor was born not before 1871 at Emerald, 40 km west of the claim area. She was the mother of Nancy, Willie and Mary Lee. Nancy’s place of birth is unknown and Willie and Mary were born in Emerald.
769 Drs de Rijke, Maclean and Kenny consider that Jenny Doctor was Gaangalu. Dr Kenny was unable to form a conclusive view because there is no linguistic or tribal identity in the written record for Jenny Doctor. Dr Kenny also notes that the areas of association place Jenny in the western areas of the broader GNP cluster region.
770 Paul Hegarty is a witness descendant and asserts he is Gaangalu through his great grandmother, Jenny Doctor. In oral evidence, Mr Hegarty stated that Jenny Doctor was associated with Emerald but had originated from near the Comet River. Lillian Harrison also gave evidence that Jenny Doctor was an antecedent for the Hegarty family.
771 The State submits that the evidence does not support a finding that Jenny Doctor’s traditional country was within the claim area. The only oral history that associates Jenny Doctor with the claim area is from Paul Hegarty and Lillian Harrison. Ms Harrison’s evidence is limited to naming Jenny’s descendants who lived in or near Cherbourg, outside the claim area. Mr Hegarty’s evidence states that Jenny was associated with Emerald but was born on the Comet River. The latter is contradicted by the archival record which reflects her birthplace as Emerald, as reported by Dr Maclean. The State submits that this inconsistency makes it difficult for the Court to attribute significant weight to the available oral history.
772 Further, the State observed that: the available archival records place Jenny Doctor in the western areas of the GNP cluster region; there is no linguistic or tribal identity in the written record relating to Jenny Doctor; the birth place of two of Jenny’s children is outside the claim area whereas the other is unknown; and the only other documentary evidence notes that she and her children were living in Barambah at the time of Jenny Doctor’s death in 1919.
773 The State accepts that there is no evidence that the claim group disputes her inclusion but instead submits that this is not probative of the fact that Jenny Doctor is an apical ancestor of the claim group.
774 I consider that Jenny Doctor was probably born in Emerald. As I have said, evidence of Dr de Rijke indicates that at sovereignty, Gaangalu country is likely to have extended to Emerald. Given the oral history, I accept that she was Gaangalu. However, I do not accept that she had rights and interests in the claim area.
775 Queenie Hart of Duaringa was born at an unidentified date and place, but based on the birth of her first child in 1912, Queenie was likely born not before 1897. In 1916, Queenie was removed with her husband from Emerald to Barambah. Queenie was the mother of Steve, Derker and Nugget Hart and an infant who died. Steve and Derker were born outside the claim area.
776 Drs de Rijke, Maclean and Kenny consider that Queenie Hart was Gaangalu. Dr Kenny was unable to form a conclusive opinion on whether she was an apical ancestor due to the limited material available. Dr Kenny highlighted that little is known about Queenie and there appears to be no written record that connects her to Duaringa, nor a linguistic or tribal identity. After a joint expert conference, Dr Kenny supports Queenie’s inclusion as an apical ancestor for the Gaangalu claim as additional material identifies her as a Gaangalu woman.
777 There are no descendant witnesses for this apical line. Lillian Harrison refers to Queenie Hart as the antecedent of the Hart, Weasel and West families. Ms Harrison also noted that her father called Derker and Steve Hart his uncles.
778 The State submits that the evidence does not support a finding that Queenie Hart of Duaringa’s traditional country was within the claim area. The basis for this submission is that there is no substantive oral history that associates Queenie with the claim area. The ethnographic material shows that: Queenie’s estimated date of birth is at least 40 years after effective sovereignty; no place of birth can be determined; and the only other documentary evidence relates to her removal from Emerald to Barambah in 1916, both of which are outside the claim area. The State accepts that there is no evidence that the claim group disputes Queenie’s inclusion but argues that this is not sufficiently probative to establish that she was an apical ancestor of the claim group.
779 I accept the State’s submissions. I am not satisfied that Queenie Hart was Gaangalu.
Charlie, Willie and George Riley
780 Charlie, Willie and George Riley are the grandchildren of Polly Doctor and the children of Trixie Doctor. Trixie Doctor was born at Comet in 1886 to 1887 at Emerald.
781 Charlie, Willie and George Riley are accepted as Gaangalu by Drs de Rijke and Maclean. Dr Kenny was unable to form a concluded view due to the limited material provided. This opinion remained unchanged, but the experts agreed that they could be removed as apical ancestors due to their descent from an already named apical ancestor, Polly Doctor.
782 There are no descendant witnesses for this apical line. However, Lillian Harrison mentioned the Riley brothers as being Gaangalu people who lived in or close to Cherbourg. No further evidence was given in relation to Charlie, Willie and George at the lay or expert evidence hearings.
783 The State submits that the evidence does not support a finding that Charlie, Willie and George Riley’s traditional country was within the claim area, consistent with its submissions regarding Polly Doctor. This is because there is no substantive oral history associating these apical ancestors with the claim area and the ethnographic material. In that regard, Dr Maclean said that there is no direct documentary evidence regarding the brothers’ grandmother Polly’s membership of the Gaangalu language group and no such evidence is provided for Charlie, Willie or George; no dates or locations of birth are provided; the only and earliest documentary evidence of a possible association with the claim area is the birth of their mother Trixie Doctor in 1886 or 1887 at Comet; and the only documentary evidence relating to the claim area shows their grandmother Polly and mother Trixie were living in Blackwater in 1908 and were removed to Barambah in 1908.
784 I have already found that Polly Doctor was not Gaangalu. I accept the State’s submissions that Charlie, Willie and George Riley, as her grandchildren, were not Gaangalu.
785 Lily/Lilla Livingstone was born in about 1885 at Banana.
786 Lily/Lilla is accepted to be Gaangalu by Drs de Rijke and Maclean. Dr Kenny noted that Lily/Lilla was listed as an apical ancestor on both the Gaangalu and Wadja applications, there was no record of an identity label, and the connection material has her associated with Banana and Redcliff. As such, Dr Kenny was unable to form a concluded view due to the conflicting material. However, Dr Kenny changed her view, stating that Lilla should only be on the Gaangalu claim. Mr Kim McCaul, in his report prepared for the Wadja native title claim, said that the Livingstone family has a clear association with Redcliff Station and that their well attested association with Redcliff Station supports the view that they have a legitimate connection to the Wadja claim area. Mr McCaul then later agreed that Lilla Livingstone is appropriately included in the Gaangalu claim.
787 Lily/Lilla Livingstone is referred to as a Gaangalu ancestor by her descendant Lillian Harrison. The State argues that this is inaccurate as Lillian Harrison says that she gets her Gaangalu from her father and grandfather, Jack Harrison who is the son of Annie of Orion Downs. Mr Harrison mentioned Lilla when talking about other Gaangalu people who were, “talked about all the time”. Accordingly, there are no descendant witnesses for this apical line and no further evidence was provided by the lay witnesses or experts.
788 The State submits that the evidence does not support a finding that Lily/Lilla Livingstone’s traditional country was within the claim area due to the lack of substantive oral history associating her with the claim area and the ethnographic material. First, there is no documentary evidence identifying Lily/Lilla with a particular group of language, the only direct evidence of her association with the claim area is her birth at Banana at least 30 years after effective sovereignty, and the fact that Lily/Lilla was included as an apical ancestor on the Wadja claim is a relevant consideration and demonstrates the weakness of the evidence relating to her. While there are no Indigenous respondents or evidence of a dispute over her inclusion, the State submits that the fact the claimants acknowledge her as part of their group is not probative to establish that she is a Gaangalu claim group apical ancestor.
789 I accept the State’s submissions. I find that Lily/Lilla Livingstone was not Gaangalu.
790 William Toby I was born between 1851 and 1859 at Banana. He was the father of Bella, Fred, Sarah, William (William Toby II), Elsie and Colley Toby, all of whom were born at Banana.
791 Drs de Rijke, Maclean and Kenny consider that William Toby I was Gaangalu. Dr Kenny concluded that based on his identification by Norman Tindale as Kanjalu and his uncontested status, he was more likely than not a Gaangalu apical ancestor.
792 There are ten witness descendants for this apical line, being:
(1) Colin Toby who is Gaangalu through his father William Toby III, whose grandfather was William Toby I;
(2) Dale Toby who is Gaangalu through his father Gordon Toby, who was the son of William Toby II, and whose great grandfather was William Toby I;
(3) Lynette Blucher who is Gaangalu through her father Gordon Toby, her grandfather William Toby II and her great grandfather William Toby I;
(4) Rosemary Hoffman who is Gaangalu through her father William Toby III and her grandfather William Toby II;
(5) Deborah Tull who is Gaangalu through her great grandfather William Toby I;
(6) James Waterton who is Gaangalu through his great grandfather William Toby I;
(7) William Philip Toby (Philip Toby) who is Gaangalu through his father William Toby III and his grandfather William Toby II;
(8) Mona Barry who is Gaangalu through her father Bob Toby;
(9) Valerie Hayes who is Gaangalu through her great grandfather William Toby I; and
(10) Robert Toby who is Gaangalu through his paternal grandfather William Toby II, who was the son of William Toby I.
793 Other lay witnesses who gave evidence as to William Toby being Gaangalu are Lynette Anderson and Lillian Harrison. Ms Anderson said that her mother told her that William Toby III was Gaangalu and Ms Harrison said that Nelly Sheridan’s family are Gaangalu.
794 The State submits that the evidence allows a finding that William Toby I’s traditional country was within the claim area around Banana. This is because: weight can be attributed to the oral history that associates this descent line with Banana; the archival records that demonstrate William Toby and his descendant’s presence and association with the claim area over a significant period; the birth of at least six of his children at Banana; and William’s likely birth date between 1851 and 1859 which is either during, or very close to, effective sovereignty.
795 I accept that William Toby I was Gaangalu.
796 Nellie of Planet Downs was born in about 1860 to 1870 at an unidentified place. Nellie was living at Planet Downs (outside the claim area) in 1900 and was identified as Kanjulu and “of Planet Downs” by Norman Tindale in the 1930s. She was the mother of Maggie and Minnie who were both born on Planet Downs Station and were identified as Kanjulu by Norman Tindale.
797 Drs de Rijke and Maclean consider that Nellie was Gaangalu. Dr Kenny stated that based on Nellie’s identification by Tindale as a Kangalu woman, it was her opinion that Nellie was more likely than not an apical ancestor associated with the GNP cluster. However, Dr Kenny noted that she was unable to form a concluded view that Nellie was a Gaangalu apical ancestor. Following the joint expert conference, Dr Kenny accepted Nellie as a Gaangalu apical ancestor based on the fact that no members of the claim group disputed her inclusion and she was not identified with any other language group.
798 Rodney Jarro is the only witness descendant from this descent line. Mr Jarro says that he is Gaangalu through his great great grandfather, Sandy of Wooroona, and his great great grandmother, Nellie of Planet Downs. Mr Jarro stated that his Granny Mabel Albury was the daughter of Nellie of Planet Downs. He also stated that his grandmother is a Garingbal person when discussing the relationship between Garingbal and Gaangalu people.
799 The State submits that the evidence does not support a finding that Nellie of Planet Downs’ traditional country was within the claim area. The basis for this is that the oral history is limited to one witness, Rodney Jarro, and there is no certainty from his evidence that Nellie was a Gaangalu ancestor; there is limited evidence or knowledge of Nellie’s parents or birthplace; Planet Downs is south of the claim area; and an agreement dated 1900 referred to by Dr Maclean between Nellie and the manager of Planet Downs Station suggests that Nellie was working there and it was not necessarily her area of association or origin. The State argues that where there is limited or unclear oral history and a paucity of ethnographic material, it is uncertain whether Nellie is from the claim area and migrated out to work or whether her area of association was outside of the claim area.
800 Moreover, while there is no evidence that members of the claim group dispute her inclusion, the State submits that in the context of the above evidence, some association with the claim area or the claim group acknowledging her as part of their group is not sufficiently probative to establish that Nellie is an apical ancestor of the claim group.
801 I rely on Tindale’s identification of Nellie and her daughters as Kanjulu and the oral history of Mr Jarro. I am satisfied that Nellie of Planet Downs was Gaangalu.
802 Myra Freeman was born not before 1879 at Planet Downs Station, about 30 km south of the claim area. Myra tribally married Mick Freeman and had ten children, including Leo Freeman. From the birth dates of her children, she was in the Rolleston area from about the mid-1880s to mid-1890s. Myra was identified as Wadja by Norman Tindale in the 1930s.
803 Myra Freeman is accepted as Gaangalu by Drs de Rijke and Maclean and Mr Kim McCaul. Dr de Rijke considered Myra in his supplementary report and now agrees with Dr Kenny that the strongest evidence points to her identification as a Wadja person. In her supplementary report, Dr Maclean concedes that there is no firsthand or contemporary archival material for Myra.
804 Dr Kenny notes that Myra was not addressed in Dr de Rijke’s 2018 Report, was listed as an apical ancestor on the Wadja application and that Myra was identified as Wadja on the Woorabinda Genealogy Sheet 41 and 57. Dr Kenny also concluded that based on her tribal identification by Norman Tindale, it was more likely than not that Myra was a Wadja apical ancestor. This opinion remains unchanged after joint expert conferences.
805 Mr McCaul’s report for the Wadja native title claim says Myra is associated with Bauhinia Downs Station and Planet Downs Station from 1870, that the circumstantial archival material and oral history of Freeman family members is evidence of either biological descent or integrational recognition within the family, and that all Freeman family generations since Myra Freeman resided in or around the Wadja claim area.
806 There are no descendant witnesses for Myra Freeman and no direct reference is made to her in the lay evidence. In the applicant’s submissions, it notes that Steven Kemp, Lynette Blucher, Rodney Jarro and Deborah Tull refer to the Freemans and/or Tottie Freeman. However, the applicant does not clarify whether these references include Lynette Blucher talking about having Wadja people in her family line, Deborah Tull stating that Tottie Freeman is Wadja, and Rodney Jarro stating that the Freemans were part of neighbouring groups and Garingbal.
807 The State submits that the evidence does not support a finding that Myra Freeman’s traditional country was within the Gaangalu claim area. The basis for this is the lack of oral history that associates this apical ancestor with the Gaangalu claim area and the fact that three claimants assert that Myra Freeman is Wadja. With respect to the ethnographic material, the State notes Myra’s identification as Wadja by Norman Tindale in the 1930s, Myra’s likely birth on Planet Downs Station, and the archival records relating to her children indicating that she was in the Rolleston area from about the mid-1880s to mid-1890s. The State accepts that Myra’s inclusion as a Wadja ancestor is not in and of itself a barrier to her inclusion as a Gaangalu apical ancestor; however, the State notes that it is relevant that the evidence predominantly associates her with an area outside of the claim area and there is no real evidence associating her to the claim area. Similarly, while there is no evidence that Myra’s inclusion is disputed by the claim group, the State argues that this is not sufficiently probative to establish that she is an apical ancestor of the Gaangalu claim group.
808 I accept the State’s submissions. I am not satisfied that Myra Freeman was Gaangalu.
809 Sarah Dodd was born in approximately 1862 to 1875 at Banana and died in Rockhampton on 8 September 1956. Sarah Dodd was the mother of Thomas, Mary (also known as Polly) and Daisy Dodd.
810 Dr de Rijke considers that Sarah Dodd was mainly associated with Baralaba, Redcliffe and Banana which is mainly in the Gaangalu claim area but partially in the Wadja claim area. Dr Maclean sets out Sarah’s descendants in her supplementary report.
811 Dr Kenny notes that Sarah was not addressed in Dr de Rijke’s first report and was listed as an apical ancestor in the Wadja application. Dr Kenny further notes that Sarah was only briefly mentioned in Dr Maclean’s 2015 report but is discussed in the Wadja connection material which connects Sarah’s family with Banana, Redcliffe Station and Baralaba. Dr Kenny further noted that there is no tribal allocation for Sarah and concludes that based on the limited material provided and the conflicting views as to tribal affiliation, she is unable to form a concluded view. Following the joint expert conferences, Dr Kenny agreed Sarah could potentially be associated with both Gaangalu and Wadja claim areas.
812 Mr McCaul’s report prepared for the Wadja claim says that: Daisy Dodd got the name Wadja from her great grandmother, Sarah Dodd; the archival material and oral histories show that Sarah is associated with Redcliffe Station from 1862; and concludes that while archival records do not associate Sarah with Wadja, her close association with Redcliffe is a sufficient basis to conclude that she is an apical ancestor on the Wadja claim.
813 There are no descendant witnesses for Sarah Dodd and no direct evidence about her association with the claim area is given in the lay evidence. The only lay evidence includes Rosemary Hoffman stating that the Dodds are Gaangalu and Priscilla Iles stating that the Dodd family is related to them and that Ronald and Sarah Dodd are the descendants of Biddy of Wooroona. The State notes that the genealogy for Biddy of Wooroona refers to Ronald Dodd and Hugh Dodd; however, there is no reference to Sarah Dodd.
814 The State submits that the evidence does not support a finding that Sarah Dodd’s traditional country was within the Gaangalu claim area. There is no substantive oral history that associates this apical ancestor with the Gaangalu claim area and in the absence of oral history, the State relies on ethnographic material. In this regard, the State takes into account Sarah’s close association with Redcliffe Station (outside the claim area) and the archival material regarding her children indicating that they were born at, or resided from birth at, Redcliffe Station. The State accepts that Sarah’s inclusion in the Wadja claim is not a barrier to her inclusion as a Gaangalu apical ancestor. However, the evidence predominantly associates her with areas outside of the claim area. Furthermore, while there is no evidence that Sarah’s inclusion is disputed by the claim group, the State argues that this is not sufficiently probative to establish that she is an apical ancestor of the Gaangalu claim group.
815 I accept the State’s submissions. I find that Sarah Dodd was not Gaangalu.
816 Mary Ann Crook was born in approximately 1861 at Gracemere, between Rockhampton and Mount Morgan. She lived in Mount Morgan for most of her life and died there on 11 July 1948. Mary Anna was the mother of Matilda, Rosina (Rose), Sandy, Sarina, Janet, Polly and Samuel Lamb. Rosina Lamb had five children with William Toby II.
817 In the February Joint Expert Report, Dr de Rijke said that he continues to hold the view that the area around Mount Morgan was a transitional zone between Gaangalu and Darumbal speakers. He does not accept a Warrabal identity for Mary Ann and notes that there is no tribal or linguistic label for Mary Ann and the evidence relating to her is inconsistent. Dr de Rijke notes that Mary Ann and her descendants are evidenced in and around the eastern portion of the Gaangalu claim around effective sovereignty, but this may have been a transition zone or “mix up country”. Dr de Rijke concludes that Mary Ann Crook may have had rights and interests in the Mount Morgan area between the Dee and Don Rivers.
818 In the same report, Dr Kenny said that the evidence related to Mary Ann is inconsistent and there is no tribal or linguistic label for her. However, at around effective sovereignty she and her descendants were around the eastern area of the Gaangalu claim and that she may have had rights and interests in the Mount Morgan area between the Dee and Don Rivers.
819 In his supplementary report, Dr de Rijke said that the opinion he expressed in the February Joint Expert Report has not changed. However, that opinion is limited to Mary Ann potentially having rights and interests in the claim area around the Dee and Don Rivers. Dr Maclean sets out Mary Ann’s descendants in her supplementary report and notes that her death certificate indicates that she was born at Gracemere, and her first child’s birth certificate stated she was born at Gracemere.
820 In his oral evidence, Dr de Rijke said that while the ethnographic records show that Mary Ann was associated with the Mount Morgan area, there is no clear description of her as Gaangalu; that it is difficult to ascribe a group membership label to Mary Ann with certainty; Mary Ann appears to be recognised as a person who was knowledgeable about Mount Morgan and in addition to her presence, this might indicate that she had some rights and interests in the claim area. It is not known which group she belonged to, but it was most likely she was Darumbal; and it is possible for a Darumbal person to have some rights and interests in Gaangalu country and Gaangalu people to have some in Darumbal country. Dr Kenny agreed with this latter statement.
821 In oral evidence, Dr Kenny said that there was no evidence in the ethnographic material that points to Mary Ann being Gaangalu; that she does not have any tribal or linguistic affiliation; and in the situation of intermarriage, a person would not normally have ownership rights in their spouse’s country, but would have other rights such as living there and hunting and gathering.
822 There are eight witness descendants in this apical line, being:
(1) Deborah Tull, who was born at Mount Morgan and claims to be Gaangalu through her great grandfather William Toby I. Ms Tull says that her father’s mother, Rose Lamb, was the daughter of Mary Ann, but never stated that she considered Mary Ann to be Gaangalu. Ms Tull says that Mary Ann was born at Gracemere which makes Mary Ann probably Darrambul, but, in any event, Mary Ann was not Gaangalu.
(2) William Phillip Toby, who was born at Mount Morgan and claims he is Gaangalu though his father William Toby III and his grandfather William Toby II. Mr Toby says that the Andersons and Lambs were his first cousins and that Mary Ann was his great grandmother. He also stated that he never heard the word “Warrabal” associated with Mary Ann.
(3) Robert Toby, who states that he is Gaangalu through his father’s father William Toby II. Mr Toby says that his father’s mother was Rose Lamb, who is the daughter of Mary Ann, and she was Darrambul. Mr Toby says that he has rights in Darrambul country through Mary Ann Crook. Mr Toby also stated that he was told by his father and Uncle Gav that Mary Ann was a Darrambul woman who had been in Mount Morgan for a long time, but came up from Darrambul country. He also stated that he was never told that Mary Ann could speak about Gaangalu or Gangulu culture, and that his father and Uncle Gav were always clear about Mount Morgan being Gaangalu country.
(4) Colin Toby, who was born in Mount Morgan, and claims to be Gaangalu through his father William Toby III. Mr Toby states that Mary Ann is his grandmother, but no one talked about her teaching or talking about Gaangalu things. At the hearing, Mr Toby said that he did not think Mary Ann was Gaangalu.
(5) Lynette Blucher, who says she is Gaangalu through her father Gordon Toby, her grandfather William Toby II, and her great grandfather William Toby I. Ms Blucher says her father’s mother’s mother was Mary Ann Crook and that she was a Darumbal woman. She heard that Mary Ann was born at Gracemere Station, but claims it is not true. Ms Blucher also said that she does not remember her father or uncle talking about Mary Ann’s country, but remembers Uncle Bill telling her that he thought Mary Ann was a Byellee woman. Ms Blucher never heard of Warrabal used with respect to Mary Ann, but knew it was used when people were talking about Darrambul.
(6) Rosemary Hoffman, who was born in Gladstone, and says she is Gaangalu through her father William Toby III and her grandfather William Toby II. Her father told her that Rose and Mary Ann were related and that they thought Mary Ann was from Gracemere. Ms Hoffman also states that Mary Ann was not from the Mount Morgan area and was not Gaangalu, but she used to live in Mount Morgan. She says that Mary Ann was Darrambul.
(7) James Waterton, who believes Mary Ann was his grandfather’s mother, that she was from Gracemere and she was Darrambul. Mr Waterton’s understanding is that Mary Ann’s connection with Gaangalu people is because she married a Gaangalu family.
(8) Dale Toby, who said that he was not aware of Mary Ann until five to seven years before the hearing and was unsure whether she was Gaangalu or not. Mr Toby believes he knew the names of most Gaangalu people, but did not know of Mary Ann Crook.
823 The State submits that the evidence does not support a finding that Mary Ann Crook was a Gaangalu person or otherwise held native title rights and interests with other Gaangalu apical ancestors. Further, it submits that the evidence does not support a finding that the claim group have received rights and interests in land by descent from Mary Ann Crook pursuant to substantially continuous traditional law and custom.
824 As to the oral history concerning Mary Ann Crook and her association with the Mount Morgan area, of the eight witness descendants who gave evidence:
(1) Six asserted that Mary Ann is not Gaangalu, with the remaining two unsure of her identity;
(2) Six said that Mary Ann is Darrambul;
(3) James Waterton, Rosemary Hoffman and Deborah Tull said that Mary Ann’s connection with Gaangalu was through marriage; and
(4) Robert Toby and Rosemary Hoffman said that while Mary Ann spent time at Mount Morgan, it was not her traditional country.
825 The State submits that:
(1) The archival material relating to Mary Ann Crook’s children indicates that from the birth of her first child in 1891, five of her seven children were born at Mount Morgan;
(2) There is no evidence that Mary Ann was Gaangalu; and
(3) The evidence demonstrates that Mary Ann was born at Gracemere, which is outside the claim area and within Darrambul country.
826 The State submits that, contrary to the applicant’s submission, the “opinions and minds” of the contemporary lay witnesses do not differ as to Mary Ann. They either say she is not Gaangalu, or is Darrambul, or that they are unsure. None of the lay witnesses gave evidence that Mary Ann was Gaangalu.
827 The State does not accept that the mere fact that the claim group has decided to include her as an apical ancestor is a sufficiently probative basis to accept Mary Ann Crook as a Gaangalu apical ancestor who held traditional rights and interests in the claim area.
828 I note that Mary Ann Crook was born in Gracemere, to the north-east of the claim area, and accept the evidence of the Gaangalu witnesses who say that was not Gaangalu. I consider the evidence of the anthropologists that she may have had rights and interests in the claim area to be unsupported by the evidence.
829 I am not satisfied that the evidence demonstrates that Mary Ann Crook was Gaangalu, nor that she held rights and interest in the claim area.
830 The applicant contends that at sovereignty the Gaangalu people held their rights and interests in the claim area under the traditional laws and customs of a regional society. The Amended Statement of Claim asserts that the Regional Society, “included the Gangalu (Kangulu), Wadja and Garingbal peoples all of whom shared a regional identity label of “Gangalu”.
831 The applicant asserts that the Gaangalu People were a “landholding group” as a sub-group of the Regional Society. The applicant does not seek to demonstrate the existence of a society consisting solely of Gaangalu people.
832 It is unclear why the applicant has not argued that the Gaangalu people held their rights and interests in the claim area under the traditional laws and customs of a Gaangalu society. The Gaangalu patri-clans at sovereignty were united by, at the very least, a common language, a shared identity as “Gaangalu”, and adjacent landholdings. The Regional Society approach creates complications for the applicant’s case and has led to extensive argument concerning the identification and existence of the asserted society.
Expert evidence: pre-sovereignty Regional Society
833 Dr de Rijke’s first report addresses the identity of the Aboriginal group or society (or groups or societies) who at sovereignty possessed rights and interests in and had a connection with the land and waters of the claim area under a system of laws and customs having a normative content. His conclusion is that the Aboriginal society in question is best understood as encompassing persons who variably identified as Gaangalu, Wadja and Garingbal, with Gaangalu being the composite regional identity label.
834 Dr de Rijke states that as there are no ethnographic sources which describe in detail the composition of landholding groups in the region of the claim area, he has drawn inferences from the anthropology of Aboriginal territorial organisation more generally.
835 Dr de Rijke notes that anthropologists such as Tindale relied on a model which Francesca Merlan described in 1981 as the “one language - one tribe” model. She noted:
Such models at some level or other propose a structural homology between linguistic varieties and social units, resulting in a reification of one or the other, or both, in ways that do not seem to aptly model either Aboriginal conceptualizations or that which may be directly observed.
836 Dr de Rijke states that Merlan suggests that a more productive form of inquiry will focus not so much on homogeneity but on complex “sociolinguistic networks”. He considers that a focus on networks of interaction is also pertinent to native title proceedings in which anthropologists are asked to identify the “society”, which is understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.
837 Dr de Rijke states it is important to recognise that anthropological analyses of concepts such as “society”, which in the anthropological literature are often described as “etic” analytical interpretations derived from “insider” or “emic” practices, are not necessarily isomorphic with the ways in which local people might construe their immediate life-worlds. He cites Redmond’s view that:
Sutton’s (2003, 117) distinction between the holders of ‘proximate’ and ‘underlying’ titles is a useful one when we wish to distinguish the wider societal level at which a body of law and customs is held, as well as the local group’s interests that are upheld by that regional body of laws. Since property in all land tenure systems is distributed by defining the nature of the social relationships between the possessors and those who respect the possessors’ right to hold that property (see Glaskin 2007), it is clear that a regional system of law and custom is implicated at every turn in people’s day-to-day socioeconomic lives.
838 Dr de Rijke agrees that Professor Peter Sutton’s distinction between the holders of “proximate” and “underlying” title is useful when distinguishing the wider societal level at which a body of law and customs is held, as well as the local group’s interests that are upheld by that regional body of laws.
839 In oral evidence, Dr de Rijke explained that the concept of proximate title refers to, “the actual ownership by the clan estate”. The underlying title is held by a broader regional public that acknowledges under their shared lore and custom, the existence of proximate rights in land. Dr de Rijke accepted that the concept of underlying title does not of itself indicate the holding of rights and interests in the land of a patrilineal clan.
840 Dr de Rijke indicates that the Gaangalu, Garingbal and Wadja people used a number of labels interchangeably with the regional identity label “Gaangalu”. Dr de Rijke cites his joint expert report with Dr Richard Martin, Dr Dee Gorring and Mr Kim McCaul, based on field notes of Tennant-Kelly and Tindale for that proposition:
Tennant-Kelly records Harriet Mummins as a Gangalu person in 1934 [Caroline Tennant-Kelly 106]. Tindale on the other hand recorded her as the daughter of a white man and a Wainjigo (our Wadja) woman in 1938 (Tindale Woorabinda Genealogy Sheet 85).
In working with Jessie Cotherstone/Collins at Woorabinda, Tindale made the following note: ‘Kairi is same as Kairingbal ... Jessie speaks ‘Ban:abal ... part of the Kairingbal ie the whole area from Clermont to Springsure + Arcadia’ (Woorabinda Genealogy Sheet 12).
Elsewhere, Tindale (1938:680) noted: ‘N.1334 [i.e. Jessie Cotherstone/Collins] gave Kairingbal and Airingbal as variations of the tribal name Kairi + termed the language Banabal’. Jessie herself was recorded as a Gangalu woman by Tindale (N1334).
Similarly, Tindale noted that ‘Kangalu ... is part of Karingbal’ in a note from an interview at Woorabinda with Albert Huey, the husband of Lily Tiger (a woman who identified as Gangalu) (Woorabinda Genealogy Sheet 71).
In our opinion, the consistent references above support the finding that a number of labels were used interchangeably with the regional identity label Gangalu by members of the groups we identify as Gangalu, Garingbal and Wadja.
We note that these groups have been recorded in a number of different ways by anthropologists, linguists, and commentators over the years.
841 Dr de Rijke considers that people would identify as Gaangalu in certain circumstances, and as Wadja or Garingbal in others.
842 Tindale described the Wadja as being, “closely related to the Kangulu”. No further information was provided as to the nature of this relatedness and why it could be considered “close”. Dr de Rijke speculates that it may be based on the statement by Charles Mummins that, “[t]he people are now mixed with surrounding tribes”. He says that Tindale’s genealogies make it clear that intermarriage between speakers of the Wadja, Gangalu and Garingbal dialects occurred.
843 Dr de Rijke infers that the statement that Wadja speakers had become “mixed with surrounding tribes” is a reference to intermarriage. Charles Mummins’ sister, Ada, for example, who was recorded by Tindale as a Wadja woman, married the Gangalu man, Willie Kemp. Tindale’s genealogies also show Tottie Freeman (identified by Tindale as Wadja) married Peter Tyson (identified by Tindale as Gangulu). Dr de Rijke acknowledges, however, that at least some descendants of people identified by Tindale as Wadja assert a Wadja identity today.
844 Dr de Rijke states that an important statement is found in the field notes of Tennant-Kelly. An unnamed “Kaingbul” man stated:
In with Kangalu is the Karangbul = No
(talk heavier) + the lighter = Kaingbul = No
Kangalu = No.
These 3 ran together = you foll[ow] your father’s lingo but follow the grannie.
I am Kaingbul but my wife is Kangalu. So my girls [are] Kaingbul but [they] follow Kangalu mother.
845 Dr de Rijke interprets this as a reference to three closely related identity labels, all characterised by their negative “no”, and that the persons to whom these labels applied “ran together”. This resonates with McIntosh’s statement in Curr some fifty years earlier regarding the “confederation of several tribes” which were said to all speak the same “thaa” or tongue, with a generic name of the tribe derived from their negative “no”.
846 Dr de Rijke considers that the term “Kangalu” refers to “Gangulu” and that the term “Karangbul” refers to “Garingbal”. He is unsure what the term “Kaingbul” refers to.
847 Dr de Rijke considers the important question to be, what is the meaning of “running together”? He states that the terms “run”, “beat”, “running” and “working” were, and continue to be, used by Aboriginal people in a variety of places. He says that the term “run”, reflecting the early usage of the term for a pastoral property, generally implies rights and interests in land. He says it is difficult to determine whether such rights and interests include core ownership rights over the whole or only part of such runs.
848 Dr de Rijke states that pertinent examples which indicate the meaning of the noun “run”, the verb “running” and variants of these usages come from Tennant-Kelly’s field notes in 1934. The Wierdi informant Abraham Johnson explained in his overview of linguistic boundaries in central Queensland:
Iman - run on the Dawson rt [right?] back out [to?] the Waka Waka. Their talk is Barungham. Gurang-Gurang - ran to Eidsvold + Bundaberg
849 Sonny Sunflower, Tennant-Kelly’s Darumbal informant, explained:
Kumbul - They run between Rockhampton + St. Lawrence on the coast.
850 Tommy Norley, a Kalali man from much further south near Thargomindah, similarly explained:
Badjidi - ran to Charleville past Wyandra, Cunnamulla ...
851 In her notes on Kalali, Tennant-Kelly summarised Norley’s comments:
The Kalali run was on the Bulloo [River]. ... [The Walkomura]: These people ran from the Wilson across to the lower Bulloo River up as far as Thargominda.
852 Dr de Rijke states that, importantly, these references to “running” were obtained from senior Aboriginal people who originated from places across southern Queensland and who were born in the period from the 1850s to the 1870s. Their information contained in other documents by Tennant-Kelly indicates extensive knowledge of traditional cultural practices and regional networks of sociolinguistic interaction. In Dr de Rijke’s opinion, it is probable that the “runs” refer to land and water in which Aboriginal people had traditional, albeit unspecified, rights and interests that existed at sovereignty. I interpolate to say that I do not understand Dr de Rijke to suggest the expression “run” in Tennant-Kelly’s field notes suggests, for example, that all the members of the Kalali patriclans held rights and interest in the whole of area from the Wilson across to the lower Bulloo River up as far as Thargominda.
853 It is Dr de Rijke’s opinion that the information from the “Kaingbul” informant in Tennant-Kelly’s field notes to groups “running together” with Gaangalu is an indication that, at sovereignty, the society from which traditional laws and customs derived included Aboriginal people known as Gaangalu, Garingbal and Wadja.
854 Dr de Rijke notes the linguistic similarities between the languages of the Maric bloc. In 1894 Gir-oonbah stated that Gaangalu was (perhaps more or less) understood in a vast area from Townsville in the north to the New South Wales border. Dr de Rijke considers it reasonable to infer that such similarities were indicative of other shared practices, including ceremony and trade.
855 Dr de Rijke states that regional interaction of the Gaangalu is indirectly supported by Mathews who noted that the “Toara” (initiation) ceremony is practiced at, “the Queensland coast from Port Curtis (ie Gladstone) to the New South Wales boundary, extending inland to include the valley of the Dawson and upper Condamine Rivers”. He also points to the attendance by Dawson River people of the Bunya gatherings centred on the Blackall Ranges, over 600 kilometres to the south of the Dawson River heartland. He notes that Tennant-Kelly recorded in 1934 that Sonny Sunflower, a senior Darrambul informant, indicated that the Darrambul engaged in corroborees and ritual fighting with Kangalu and Karangabul speakers, also implying that Aboriginal people spoke more than one language and shared some aspects of traditional law and custom with people from a broad region.
856 Dr de Rijke states that Aboriginal people from the region had detailed knowledge not just about their own country, but of areas and groups throughout the region. Tennant-Kelly wrote in 1934 that:
I am taking down the boundaries of different people. They remember these most clearly and it’s useless to try and trip them up on their local geography. Rivers appear to have been the most popular boundary...
857 Dr de Rijke states that Tennant-Kelly’s Aboriginal informants from a large region around the current claim area referred to and acknowledged Gaangalu speakers, those forms of acknowledgement being an important indication of the regional networks of sociolinguistic interaction which assist in identifying the relevant society.
858 Dr de Rijke considers that the evidence points to a commonality of law and custom that indicates the pre-contact normative society was not confined to the Gaangalu people only, but indicates that the cultural life-worlds of Gaangalu people at sovereignty extended outward to encompass a broader regional population.
859 Dr de Rijke concludes:
For Gangulu speakers, varying degrees of interaction existed within their regional network. That is, while linguistic similarities with peoples from the area around Townsville existed, their day-to-day realities undoubtedly involved closer contact with those people immediately surrounding the current claim area. Put differently, I take a view of the society as a regional network of interaction characterised by decreasing forms of association as one moves to the outer perimeters of socio-cultural alliance and linguistic compatibility.
…
However, I take a view of the relevant society as implying a significant degree of day-to-day interaction. The evidence above includes the reference that three named groups including Gangulu ‘ran together’. It is also points to the ‘closely related’ and ‘allied’ Wadja, intermarriage, and the interchangeability of identity labels such as Garingbal and Wadja with the composite regional Gangulu label. Based on this evidence, I have come to the conclusion that the Gangulu region, including people known as Gangulu, Garingbal and Wadja, is the regional society within which a body of traditional laws and custom were observed and acknowledged, and by reference to which their rights and interests in land were generated, sustained, and regulated.
860 In oral evidence, Dr de Rijke added:
The indications are that at sovereignty there were patriclans in this whole region, that there were people who identified as Wadja…as well as Garingbal. And the evidence indicates that people who identified as Wadja were owners of land in the region of Bauhinia Downs. Garingbal People were the holders of ownership rights in an area somewhat further south-west of there. And so, at the same time these people have … at times refer[red] to themselves as Gaangalu as a composite regional label and – and so, within that regional composite label there were local groups who had specific rights to smaller parcels of land.
861 Dr de Rijke concludes that the term Gaangalu was a “composite regional label”. Together, the evidence indicates that persons could identify as Gaangalu in certain circumstances, and as Wadja or Garingbal in others. He considers this consistent with McIntosh’s statement in the late 1800s about the regional “confederation” of tribes known as “Kangooloo”, including the Karranbal (Garingbal).
862 In his oral evidence, Dr de Rijke said of his shared opinion with Dr Kenny:
[W]e jointly came to the view that the Gaangalu people were part of the broader society, that they shared traditional laws and customs with other people generally referred to as Wadja, Darumbal and perhaps a range of others, as Dr Kenny has described in her report. So that was deliberate, in the sense that we came to the view that the evidence points to Gaangalu people being part of a broader regional society. I have put the view before lunch that this is, analytically speaking, of course, a matter of scale, and I have tried to describe in my report the evidence for a regional society that goes beyond the groups that I have mentioned – namely Wadja, Darumbal and Western Kangoulu. There is evidence which supports a broader regional society than that, and it is also true, in my view, if we take society to mean a network of people who interact – who assert themselves and who are acknowledged by others – your Honour may remember the discussion of proximate and underlying title – then based on that model of society, we might, of course, also say that Gaangalu people themselves form a society, given that we have local descent groups, families – often referred to as families – within the Gaangalu claim group who assert connections and rights in particular parts of the claim area and who are acknowledged by these other descent groups as properly belonging to these places.
863 In her report, Dr Kenny addresses a cluster of claims in the central Queensland region, including the Gaangalu claim, known as the “GNP cluster”. Her report draws upon the ethnographic evidence concerning the whole of the region and, more generally, classical Aboriginal anthropology. Dr Kenny considers that to address the matter of “society” for native title purposes it is “above all” necessary to identify the system of territorial organisation within the claim area at effective sovereignty.
864 Dr Kenny considers that at effective sovereignty the landholding units were small local groups, called in the literature “hordes” or “clans”, which recruited their members mainly by patrilineal descent. These local groups formed clusters or aggregations at another level of identification that was usually a linguistic identity. Some of these languages, such as Gaangalu, took their name from their word for “no”.
865 A tribe was composed of a number of local groups or clans, each having a local position in some part of the tribal territory that was inherited through the male lines. At around the turn of the century, Flowers recorded that people in the region:
...lived mainly in small family clans of from twenty to thirty, who camped together in one place. The men hunted and fished, and the women collected yams, earth-nuts, water-lily roots, fruit, etc., from the scrubs, lagoons and swamps adjacent to the camp. When food began to get scarce in one place the camp was shifted to another part of the country.
866 Dr Kenny states that many of these small territories of local groups in this region had a name that referred to a particularity of the landscape and was usually or often suffixed with “-bara/-burra/-bora [-bura]”, meaning “of” or “belonging to”. Flowers, for example, wrote that these clans each had its own name, which usually ended in “bura”, which means “men of’”. In the literature, the local groups who owned these particular areas within “tribal” territories are referred to as “hordes”, “tribal divisions”, “subtribes”, “clans” or “tribelets”. These smaller landed units or local groups appear to have formed clusters at another level of identification that early writers called “tribes”, which were often characterised by a dialect, language or a language variety, and did not represent political grouping.
867 Dr Kenny considers that the society comprising the body of persons’ acknowledging and observing a common system of laws and customs at effective sovereignty extended beyond any small local group and even beyond local group clusters with a linguistic specificity, concluding:
The society of the GNP cluster included people who belonged to local landholding groups of peoples now known as the Gaangalu, Western Kangoulu, Wadja, Darumbal, Wulli Wulli, Wakka Wakka and possibly the Gurang Gurang and others. This is evidenced by (a) the movements of these different groups to areas outside their own local landholdings; (b) a common land tenure system; (c) the wide distribution of a section system that facilitated intergroup dealings; (d) totemic matriclans across the region; (e) intergroup marriage alliances; and (f) common subscription to, and participation in, Toara/Dora/Dhur initiation ceremonies. The society at Effective Sovereignty extended beyond or was not limited to the GNP cluster’s horizons. Thus, the landholding groups of the application areas belonged to a broader regional society.
868 Dr Kenny considers that the ethnographic record suggests that Aboriginal people in central Queensland lived within a region that had a common system regulating rights and interests in land under a body of laws and customs that was adhered to beyond their own territory or territories and provided opportunity for connections to others. These people belonging to local groups shared cross-cutting ceremonial co-operative institutions and social systems that involved kin, marriage, esoteric knowledge, a territorial (or local) organisation and other identity levels such as language.
869 Dr Kenny explains that labels such as “Gaangalu” and “Wadja” generally relate to languages or dialects that were spoken in central Queensland, and continues:
They were often understood as a ‘tribal’ designation by early ethnographic writers. Generally, the ‘concept of tribe’ and other attempts to define neatly bounded entities in Aboriginal Australia, are not adequate to conceptualise the complexities of Aboriginal landownership and society. The assumption that an Aboriginal society was a clearly defined social and/or linguistic unit such as a ‘tribe’ or a ‘nation’ or even a ‘language group’ did not take the context into account that informs how names may be applied to cultural, linguistic or regional groupings. The use of a name to identify the ‘tribe’ and its language obfuscated a complex reality, which in the context of socio-cultural networks in a region’s broader society includes groups of people that may speak differently, but may have cultural commonalities and share laws and customs relating to landownership.
870 Dr Kenny observes that linguistic or “tribal” labels have become prominent in many parts of settled Australia because they are used as names of contemporary Aboriginal landholding groups. The “language group” has now often become the basic landholding unit, whereas at effective sovereignty the landholding group was typically a much smaller local group. Settlement has contributed to the amalgamation of many smaller landholding groups and diminished the relevance of the fine-scale distinctions in land ownership. This has resulted in the emergence of the “language group” as the land holding group in many settled areas rather than smaller estates held by patrilineal descent groups or clans. Dr Kenny states that the application area, like in many other parts of Aboriginal Australia, was once owned by local groups who held small parcels of country.
871 Dr Kenny refers to Professor Sutton’s concept of “underlying” and “proximate” title and says the concept is particularly useful in the context of contemporary Aboriginal landholding groups who are an amalgamation of smaller groups identifying as one or the other group under language names connoting or belonging to the regional society. Today’s language groups can be understood to be holding the “proximate title” over their land and a number of peoples of a regional society may hold the “underlying customary title”. Dr Kenny considers that the “language” named groups such as the Gaangalu “may possibly hold in some instances” the “underlying title” of certain areas that confers “generic” or “contingent” rights to country such as the resource exploitation of larger areas, right to identify with the country or to teach about it.
872 Dr Kenny indicates that in classical Aboriginal anthropology, there is a close relationship between language and country:
Here it is important to note that language is owned and traditionally associated with specific areas of a landscape. Language identifies country as belonging to a particular people who vice versa identify themselves belonging to that language and country; therefore language is owned like country is owned, even if people do not speak it anymore. This confers a sense of ownership not only of the language but also to that country. Alongside the underlying title, language association reinforces the claims of ownership of a larger group to a stretch of land.
Language ideologies in Australia are tied to language ownership and territoriality. Language is an overarching way of conceptualizing both personal identity as well as identity and culture in a broader group, which relates back to land that was created by the ancestors who gave particular languages to particular territories. Sutton has listed several ‘classical Aboriginal principles’ relating to language ideologies and their sociocultural values, which include language as owned, belonging to specific places and people, indicative of kin relatedness, and associated with mythical origins and markers of distinction. In many Aboriginal societies, language is linked to tracts of land that are owned by clearly defined groups of people. Just as land is owned and inherited, so is language identity, which generates a strong sense of language ownership even if a people cannot speak it. Aboriginal people in settled Australia have a sense that language is owned regardless of whether one can speak it or not as long as it is the language of ones’ ancestral lands.
(Citations omitted.)
873 Dr Kenny considers it is reasonable to conclude from the ethnographic material, such as Roth’s report, that local group members traditionally moved within their social networks for many reasons which included marriage arrangements, festivals, initiation gatherings and ceremonies, settling fights and probably also to simply visit kin. She concludes that the ethnographic record shows that local groups across a broad area participated in regional social networks according to common laws and customs that variously regulated movements over different territories, marriage arrangements, festivals and initiation ceremonies, as well as their fights. The terrain covered by each local group within their particular social network was slightly different and overlapped with the terrains travelled by other local groups.
874 Dr Kenny states that in most parts of Australia, Aboriginal societies comprising a body of persons acknowledging and observing a common system of laws and customs usually extended beyond the sociogeographical horizons of any currently defined native title claim area. In that regard, a local group boundary, did not ipso facto mark a boundary of a wider regional society, since neighbouring local groups were very likely to have maintained strong bonds with each other and often it was not possible to discern the larger grouping (if any) to which they might have “belonged”.
875 Dr Kenny said in oral evidence:
I also believe that it’s a regional society, and that this regional society went well and truly beyond the claim area of the Gaangalu. The society itself was composed or characterised by small local patrilineal landholding groups which had social networks with others, which defined their immediate social world or universe, and they had common laws and customs... I don’t really think it’s necessary to say exactly where this society stops because usually at the fringes it starts, as we said, even at these big societies. They start fading into each other because then there’s already another group that has – may have quite a different way of dividing the world up. I do know that in – to the west and what we will call the central Queensland block, another block – cultural block begins where there are, for example, patrimoieties, and children inherit their section or subsection through their fathers. So, I don’t think we need to make a exact line there. We know that the Gaangalu for certain sit in an area with – where they are surrounded by peoples with the same rules and customs at sovereignty, and they may have had at different times different kinds of social networks into different areas.
876 In their Joint Experts’ Report, Dr de Rijke and Dr Kenny agree that:
• There were Aboriginal people in occupation of the Gaangalu claim area at sovereignty and there were common laws and customs acknowledged and observed across the region.
• Those people were part of a larger regional society extending beyond the claim area.
• At effective sovereignty:
(i) land holding units were clans, whose members held proprietary rights and interests as a clan group at a local level (i.e. in a local clan estate);
(ii) other, secondary rights were held by clan members in a broader area;
(iii) the local land owning clans formed clusters or aggregations at another level of identification which may have been a regional and/or linguistic identity and was not a land holding unit.
877 Dr Kenny considers that these features of the regional society were common to the GNP cluster, despite some differences.
878 The views of the anthropologists provide support for the proposition that, at sovereignty, the claim area was occupied by Aboriginal people, including Gaangalu, Garingbal and Wadja people, who identified under a regional label of Gaangalu, and that those persons together formed a Regional Society.
Consideration of the asserted pre-sovereignty Regional Society
879 The State admits that the Gaangalu, Garingbal and Wadja were together likely to have been members of a regional society at sovereignty. That concession is apparently based on McIntosh’s description of the Gaangalu as a confederation of tribes including Karingbal (Garingbal), together with Tindale’s assessment of Wadja as being “closely related” to Gaangalu, and Tennant-Kelly’s informant stating that Gaangalu, and Karingbal “run together”.
880 However, the State argues that the societal model adopted by Dr de Rijke, “a significant degree of day-to-day interaction”, is not the test for a “society” required by Yorta Yorta – being a group of people united in acknowledgement and observance of the same body of law and custom. The State submits that the indicia of a society surveyed in Sampi FC are absent. In Sampi FC, it was observed that in a number of cases it has been found that a native title claim group which adhered to an overarching set of fundamental beliefs constituted a society.
881 The State submits that while Dr de Rijke and Dr Kenny purport to use Professor Sutton’s concept of proximate and underlying title, particularly underlying title, to identify a regional society, they do not adequately apply that concept. Sutton indicates that potential markers of a society include:
• its geographical limits and/or focal points as a unit of tenure or a district;
• its internal structure (e.g., drainage subsystem, ecological zone, etc.);
• its association with markers of a particular cultural identity (e.g. a particular language, a subsection couple, a focal residential centre (campsite, old mission, etc.); certain totemic entities, site-specific myths, songline verses, sacred objects, etc.);
• its characteristics as a form of property (e.g. not being available for treatment as an alienable commodity, the communal basis of its tenure); and
• the acceptable norms by which claims as of right may be made over it by Aboriginal people (e.g., a certain kind of descent from former landholders, conception, modes of ceremonial incorporation, long residence combined with other preconditions, etc.)
882 The State submits that these indicia are a useful identification of the types of laws and customs which identify a society, particularly by reference to matters affecting land, but that Dr de Rijke does not consider whether on those indicia as a whole there is support for his posited Regional Society.
883 The State engages in a fine-grained critical analysis of Dr de Rijke’s views upon the Regional Society and the evidence he relies upon, including: his reliance on linguistic similarities in Gaangalu language as part of the Maric language bloc; reliance merely on areas where people have been recorded as speaking or referring to themselves as Gaangalu rather than higher order evidence relating language to the land itself; reliance on Tennant-Kelly’s reference to “some shared features of traditional law and custom”; reliance on intermarriage; and reliance on geographic and hydrographic material.
884 The State submits that that underlying title indicia may, in appropriate circumstances, be inferred from contemporary evidence as to geographical scope and the like to have existed at sovereignty, but that is not the exercise undertaken by the applicant or the experts who rely on the ethnographic record and common land tenure system involving “burra” groups to establish a society.
885 The State submits that Dr Kenny’s view that the Wadja, Gaangalu, Western Kangoulu and Wulli Wulli “may possibly hold in some instances” the “underlying title” of certain areas within that cluster, which in turn confers “generic” or “contingent” rights to country, is plainly insufficient to find in favour of the applicant’s case. The State also engages in a fine grained-criticism of Dr Kenny’s analysis and views concerning a regional society, principally her reliance upon: language; alliances; the evidence for Dora/Toara ceremonies; and reliance upon matters such as recruitment, contact, fighting grounds, section and moiety systems.
886 The State submits that the applicant has simply identified too little detail of the law and custom of the claim area and surrounds to be able to determine what group or groups were united in various bodies of law, and what their defining features were. It is contended that the Court cannot be satisfied as to the nature of the relationship between the various regional groups, who in fact constituted the relevant regional society, or the body of laws and customs uniting the relevant group. Consequently, the State submits that the applicant has failed to identify the relevant society at sovereignty according to the principles derived from Yorta Yorta.
887 It must be remembered that the word “society” does not appear in s 223 of the NTA. In Yorta Yorta, the plurality used the expression “society” for a limited and particular purpose. The High Court explained (at [47]–[49]) that the requirement that rights and interests be possessed under traditional law and custom requires the normative system under which they arise to have had a continuous existence and vitality since sovereignty. Laws and customs do not exist in a vacuum but are socially derivative and non-autonomous: that is, all laws are laws of a society or group. The plurality indicated that, in this way, a “society” may be understood as the body of persons united in and by its acknowledgment and observance of a body of laws and customs. The High Court held that to show that the claimed rights both continue to exist and have a pre-sovereignty origin, it is necessary for the applicant to prove that there was (and is) a society sufficiently organised as to create and sustain rights and duties since pre-sovereignty times and to prove that presence on land was part of a functioning system.
888 In Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 273 FCR 350; [2019] FCAFC 177, Jagot J and Mortimer J (as her Honour then was) observed at [107]:
…[W]hile, as Yorta Yorta emphasises, a claim group must establish that the traditional law and custom which gives rise to their rights and interests in that land and waters stems from rules that have a normative character, there is no further gloss or overarching requirement, and no further rigidity. The Native Title Act in terms does not require establishment of some overarching “society” that can only be described in one way and with which members of a claim group are forever fixed in relation to any other land and waters over which they assert native title. Neither Yorta Yorta, nor any other decision binding on this Court, requires such an approach. The use to which the majority (and especially the plurality) put the concept of “society” in Yorta Yorta must be borne in mind: it was to emphasise the fact that, as the plurality observed at [49] referring to Professor Julius Stone’s words, laws and customs are “socially derivative and non-autonomous”.
889 In Alyawarr FC, the Full Court stated at [78]:
The concept of a ‘society’ in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is ‘a body of people forming a community or living under the same government’ — Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. 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.
890 In applying the requirements of s 223 of the NTA, care must be taken not to construe the concept of “society” in a rigid, inflexible or overly prescriptive way. It may be that the members of a claim group can appropriately be described as belonging to more than one “society”. Further, while there must be a collection of persons united in and by its acknowledgment and observance of a body of laws and customs, it is not necessary that the body of laws and customs be uniform or be acknowledged and observed by every member of the group.
891 As I have observed, it is not clear why the applicant contends for the finding of a regional society under whose laws and customs the Gaangalu held, and continue to hold, rights and interests in the claim area. The more natural contention would have been that the Gaangalu themselves constituted a society united by matters including language, area and mythology. In his oral evidence, Dr de Rijke went some way towards suggesting that the Gaangalu may be regarded as a society, but as the State has submitted, and the applicant has conceded, that is not the case pleaded or argued.
892 It must be accepted that a native title claim group need not constitute a society in its own right. Whether different societal models may be able to be applied to groups incorporating some or all of the same people must be a question of fact in each case.
893 However, the consequence of the applicant putting its case on the basis that the claim group holds the claimed rights and interests in the claim area under the traditional laws and customs of the asserted Regional Society is that the applicant must prove both the existence of that Regional Society (in the sense of a society united in and by acknowledgment and observance of a body of laws and customs) at sovereignty and its continuing existence.
894 In Sampi FC, North and Mansfield JJ observed at [71] that a claim group which adheres to an overarching set of fundamental beliefs may constitute a society notwithstanding that the group is composed of people from different language groups or groups linked to specific areas within the larger territory, referring to several examples of where findings of such a society have been made. It is noteworthy that their Honours at [77] considered it too narrow to exclude from consideration factors which, while not being direct evidence of the existence of a normative system, may bear on the existence of such a system. Their Honours also indicated that the factors to be considered include the emic view.
895 In the present case, the applicant pleaded that the regional society “included” the Gaangalu, Garingbal and Wadja. However, in his first report, Dr de Rijke’s analysis of a regional society is based upon the Gaangalu, Garingbal and Wadja, and no other group. I understand the applicant to have relied on Dr de Rijke’s identification of that Regional Society, rather than adopting Dr Kenny’s conception of a much broader society. Accordingly, the State’s submission that it is inadequate for the applicant to postulate an inclusive, undefined and unbounded society need not be considered.
896 In its post-hearing submissions, the State concedes that, “Gaangalu, Garingbal and Wadja were together likely to have been members of a regional society at sovereignty”. This seems to be a concession that the Gaangalu, Garingbal and Wadja were a society united in and by their acknowledgment and observance of a body of laws and customs.
897 In any event, I am satisfied by the evidence of Dr de Rijke that the Gaangalu, Garingbal and Wadja constituted a society united in and by their acknowledgment and observance of a body of laws and customs at sovereignty.
898 Dr de Rijke and Dr Kenny agree that there were common laws and customs acknowledged and observed across the region and that the Gaangalu were part of a larger regional society extending beyond the claim area. Dr Kenny approaches the issue by reference to the anthropology of the Aboriginal people of the wider central Queensland region, particularly, systems of territorial organisation. She infers, in effect, that the Gaangalu were not likely to be outliers. She relies on evidence of matters including movements of these different groups to areas outside their own local landholdings; a common land tenure system; the wide distribution of a section system that facilitated intergroup dealings; totemic matriclans across the region; intergroup marriage alliances; and common subscription to, and participation in, Toara/Dora initiation ceremonies. She concludes that the ethnographic record shows that local groups across a broad area participated in regional social networks according to common laws and customs that variously regulated movements over different territories, marriage arrangements, festivals and initiation ceremonies and their fights. Dr Kenny considers that the regional society was comprised of Gaangalu, Western Kangoulu, Wadja, Darumbal, Wulli Wulli, Wakka Wakka and possibly the Gurang Gurang and others. She does not specifically include the Garingbal.
899 Dr de Rijke adopts Dr Kenny’s reasoning, but prefers a model of a regional society comprised of Gaangalu, Garingbal and Wadja. Dr de Rijke relies on evidence including the use of the Gaangalu label interchangeably with Garingbal and Wadja, evidence that the Garingbal and Gaangalu “run together”, and McIntosh’s description of the “confederation of several tribes”.
900 I do not accept the State’s submission that Dr de Rijke substituted a test of “a significant degree of day-to-day interaction” for the Yorta Yorta formulation. Rather, he relied on the closeness and frequency of their interactions to infer the existence of a closer connection of their law and custom than the connection of their law and custom with that of other groups. It can be accepted that closeness and level of commonality of relevant laws and customs may vary according to factors including the geographical proximity of the groups, the nature and frequency of their interactions and the scale of the groups.
901 I accept that the evidence does not demonstrate some of the indicia of a society described in Sampi FC at [72]-[74]. The Full Court gave examples of a shared kinship system, shared moieties; marriage rules, and exchange; belief in ancestral beings and a Rainbow Serpent, transcending estates and language countries; a single set of relationship rules, mourning customs, gender restriction rules, ceremonial practice, ceremonial and dreaming connections and systems of land tenure; and considerable evidence of marriage between linguistic or tribal groups and between members of different estate groups within the claim group. However, the State, having admitted that Gaangalu, Garingbal and Wadja were together likely to have been members of a regional society at sovereignty, also went on to admit that any relevant regional society acknowledged and observed a number of specified laws and customs. These admissions are generally consistent with the evidence of Dr de Rijke and Dr Kenny that the laws and customs of the Regional Society include:
A classificatory kinship system.
A form of social organisation encompassing two named moieties and four named sections.
An understanding of mythology, including spiritual forces inhering in land and waters.
A system of inheritance of identity and generic and locality-specific rights in land through different genealogical links, including the inheritance of rights through male and female forebears as well as relations based on marriage and adoption.
An understanding of totemism, including an association between totemism and kinship as well as personal totems called yuris.
An understanding of spirits in the landscape, including appropriate ways of managing spiritual presence.
Male and female rituals, including initiation ceremonies.
Intermarriage and trade across the regional society and beyond.
Various funerary practices.
902 The State’s admissions seem to acknowledge that there was a regional society acknowledging and observing the laws and customs described, although not the identity of that regional society.
903 The State’s focus on the experts’ use of Sutton’s concepts of “proximate and underlying title” is misplaced. Those concepts are no more than an analytical tool that may assist to indicate the presence of a society. They are not prescriptive requirements which require examination in fine detail. The overarching issue is whether the postulated society can be described as a body of persons united in and by its acknowledgment and observance of a body of laws and customs
904 There is more than one way a “society” can be conceptualised for the purposes of s 223 of the NTA. In this case, the relevant society could have been pleaded as a solely Gaangalu society, or one consisting of Gaangalu, Garingbal and Wadja, or a broad central Queensland society. In my opinion, the evidence indicates that each of these groups could have been described as a body of persons united in and by its acknowledgment and observance of a body of laws and customs.
905 I acknowledge the State’s submission that in Sampi, the primary judge found that the relevant groups:
…had similar laws and customs, but they did not have a common or shared system. In other words, there were two systems of laws and customs with similarities, rather than one system of laws and customs.
The Full Court overturned that finding of fact, but did not doubt the underlying principle that merely similar systems of law and customs are insufficient to constitute a society. In this case, however, I am satisfied by the expert evidence that the putative regional society had a shared system of law and custom.
906 I find that at sovereignty, the Gaangalu people held their rights and interests in the claim area under the traditional laws and customs of a Regional Society consisting of Gaangalu, Wadja and Garingbal peoples. I find that at sovereignty the society was sufficiently organised as to create and sustain rights and duties and that the presence of the Gaangalu on the relevant part of the claim area was part of a functioning system.
907 One other aspect of the expert evidence concerning “underlying” and “proximate title” should be mentioned at this stage. Dr Kenny considers that language named groups such as the Gaangalu “may possibly hold in some instances” the underlying title of certain areas that confers “generic” or “contingent” rights to country such as the resource exploitation of larger areas, right to identify with the country or to teach about it. That tentative evidence does not establish that at sovereignty the clan groups in the claim area held rights and interests in the land occupied by other clan groups.
908 In addition, Dr de Rijke indicated, perhaps by reference to the concept of “underlying title”, that the reference to the Gaangalu and Garingbal and Wadja “run[ing] together” probably indicates the holding of “traditional, albeit unspecified, rights and interests”. To the extent that Dr de Rijke may suggest that this evidence indicates that Gaangalu and Garingbal clans held rights and interests in each other’s country, I do not accept that suggestion. The expression certainly indicates a closeness of connection between the Gaangalu and Garingbal people, but is too uncertain and nebulous to indicate the holding of rights and interests, let alone identifying what any such rights and interests may have been.
The pre-sovereignty laws and customs of the Regional Society
909 In his first report, Dr de Rijke identified a number of the traditional laws and customs of the pre-sovereignty society that, “most probably obtained across the regional society at sovereignty”. Seemingly derived from that report and Dr Kenny’s concurrence, the parties have reached agreement about the existence of categories or descriptions of laws and customs acknowledged and observed by the people who occupied the claim area at sovereignty. The agreed categories or descriptions are:
(a) a classificatory kinship system;
(b) a form of social organisation encompassing two named moieties and four named sections (though it is not agreed that this indicates the existence of any particular society);
(c) inalienability of rights in land and waters;
(d) an understanding of mythology, including spiritual forces inhering in land and waters;
(e) an understanding of totemism, including an association between totemism and kinship as well as personal totems;
(f) an understanding of spirits in the landscape including appropriate ways of managing spiritual presence;
(g) male and female rituals and initiation ceremonies (though the nature and content of any such laws and customs is not agreed);
(h) various funerary practices;
(i) a system of authority emphasising the role of senior people (though whether that indicates anything as to existence of any particular society is not agreed);
(j) responsibilities to manage and protect land and waters;
(k) the presence of landholding units which were small local groups (capable of description as hordes or clans) who recruited members mainly by patrilineal descent, (although whether such groups were identifiable, and if so, the identity of those groups, is not agreed);
(l) local groups which formed clusters or aggregations at a higher level of identification;
(m) customary use of natural resources; and
(n) recognition of gender specific and other significant sites (though whether access protocols applied, or their nature, is not agreed).
910 Dr de Rijke acknowledges that there is a paucity of ethnographic records describing the traditional laws and customs observed and acknowledged by Gaangalu people at sovereignty, and states that, where appropriate, he has inferred that certain laws and customs were observed and acknowledged by Gaangalu people based on the broader anthropological literature about Aboriginal Australia.
911 In the Joint Experts’ Report, while Dr Kenny agrees with Dr de Rijke’s opinions regarding the traditional laws and customs, she also states that a number of these laws and customs, such as (b), (h), (i), (j), (l) and (n) are irrelevant to land ownership, and she has accordingly not considered them in detail. Somewhat inconsistently, she states that moieties and sections described in (b) relate “only to some degree to land tenure”. Further, the laws and customs described in (h), (j), (l) and (n) seem clearly seem relevant to land ownership.
912 Dr de Rijke’s first report offers the following amplification of the pre-sovereignty laws and customs he describes.
A classificatory kinship system
913 Dr de Rijke observes that Tennant-Kelly recorded detailed information about kinship terms from her informants, including senior Gaangalu people, at Cherbourg in 1934. She was interested in the structural-functional elements of kinship seen to render a society cohesive. The kinship system and features of the social organisational system, such as moieties, the four section system and associated totemic affiliations and marriage rules, were seen to provide a framework for the regulation of social relationships.
914 Tennant-Kelly’s field notes record, for example, that all of father’s brothers were classified as fathers, and all mother’s sisters were classified as mothers. Similarly, father’s father’s brothers were classified as father’s father. In Dr de Rijke’s opinion, these statements indicate there was a classificatory kinship in operation among Gaangalu people at sovereignty, consistent with the literature of Aboriginal Australia more generally.
915 Dr de Rijke notes that an unknown Gaangalu informant told Tennant-Kelly that the marriage rule among Gaangalu meant that a man should marry his classificatory cross-cousin, and that such marriage is also consistent with the general literature of Aboriginal Australia more generally. A Gaangalu informant also told Tennant-Kelly about customary in-law avoidance and a distinction between “really own” in-laws such as daughter’s husband and “far off” in-laws.
A form of social organisation encompassing two named moieties and four named sections
916 Tennant-Kelly’s field notes demonstrate the existence of two named moieties and four named sections among Gaangalu and most other Aboriginal groups in Central Queensland. In 1935, she noted in her publication based on this research, Tribes on Cherbourg Settlement, Queensland, that the names of the moieties and sections change as the language changes, but over a considerable area the sections are termed “Wungo” and “Kupuru” in the “Wuturu” moiety, “Banbari” and “Kulgila” in the “Yangaru” moiety, and have only slight linguistic variations. A Gaangalu informant told Tennant-Kelly that the marriage rule is as follows: Kulgila marries Kupuru, Wungo marries Banbari.
917 Tennant-Kelly noted in a 1944 publication, Some Aspects of Culture Contact in Eastern Australia, based on her field research:
The Queensland native in such circumstances retained much of the ‘old way’ because no very definite ‘new way’ showed itself. On reserve A [Cherbourg] there were representatives of more than twenty tribes from all parts of the State. Quite a number of them had the four-section marriage rule, although in each tribe the names for these sections were entirely different. But they had decided to weld themselves, no doubt quite unconsciously, into a more corporate whole, and now the section names used are those for a tribe which originally ‘ran’ near to this reserve. In other words, they ‘closed the ranks.’ Old people would say that their section was ‘Kupuru, the way this feller calls it. My way I am so and so.’ But, invariably, he first mentioned the present section name, then his old way.
918 Dr de Rijke states that in the context of forced removals and an increase of daily interaction with people from distant places at locations such as Cherbourg, kinship practices were soon adapted to the new circumstances.
Inalienability of rights in land and water
919 Dr de Rijke observes that Professor Sutton concludes in his description of the basic characteristics of Aboriginal country as property that, “[b]y tradition, Aboriginal country is inalienable.” That is to say that across pre-contact Australia, Aboriginal rights and interests in land and waters could not be exchanged, given away, or stolen. Dr de Rijke considers that such rights and interest in land and water were communal and based on identity.
An understanding of mythology, including spiritual forces inhering in land and water
An understanding of spirits in the landscape, including appropriate ways of managing spiritual presence
920 Dr de Rijke notes that in 1934, Tennant-Kelly recorded information provided by Harriet Mummins, concerning aspects of the Dawson River “Mundagarra” rainbow snake mythology, as follows:
The Rainbow cracks the ground. So I chucked the flour away. I belonged to another country+ I was to take the flour to the shepherd. A hissing, cracking sort of noise underneath the water. Leaves [?) under the water to lay eggs. A man attacked the R. snake. He [illegible] cane grass + leaf hit the man in revenge[,] nobody else but the one man + he died the next day.
921 Dr de Rijke infers from the mythology of other Aboriginal groups that Mundagarra, or a rainbow snake, was a creative and destructive force. It can be accepted that the pre-sovereignty Gaangalu had a body of Mundagarra mythology.
922 The only other early description of a Gaangalu myth referred to by Dr de Rijke comes from another Gaangalu informant, Charlotte Costello, who told Tennant-Kelly about a dangerous “Devil” on an unnamed mountain who would, “smash you up with his nulla”.
923 Although Dr de Rijke records a number of contemporary spiritual beliefs, such as beliefs in djandjarris and spirit birds, he does not identify any traditional basis for such beliefs.
924 Dr de Rijke considers that traditional laws and customs encompassed an understanding of sorcery and traditional healing.
925 Dr de Rijke observes that Tennant-Kelly stated:
People who assure me they had been with the whites too long to remember anything are now bringing out pointing bones and other bits of magic and sorcery that show every sign of recent usage.
926 Tennant-Kelly also observed that, “[t]he medicine man is held in great respect by many professed Christian natives, largely because of his ability to heal”, and, “I find also great belief in native medicine and the use of magic to heal”. She said that not every group had its own “clever man”, so the three “clever men” on the reserve now acted for the whole community.
An understanding of totemism, including an association between totemism and kinship as well as personal totems called yuris
927 Dr de Rijke observes that Tennant-Kelly noted in 1934 that at Cherbourg, “[t]otemism is the most important and the most living part of their old life”. Totems were called “yuris”.
928 Dr de Rijke states that the ethnographic record does not indicate whether or how totemism in this region was related to rights and interests in land.
929 Tennant-Kelly’s notes indicate that the two moieties and four sections had a series of totems associated with them. She summarised these in her typed notes for Gaangalu as follows:
Wuturu [moiety]
Big Eel (Dhurulu).
Big Leaf Lilly (Kumi).
S. [Scrub] Turkey.
Porcupine.
Yengaru [moiety]
Brigalow (Kapela).
Grub (in the Brigalow roots). (Dharbari).
A prickly shrub (Muguna).
Emu.
930 Tennant-Kelly’s field notes contain information about the totems of Charlotte Costello’s kin. Charlotte, her mother, and her mother’s mother all had the same totem. Charlotte’s father and her mother’s father had a different totem to Charlotte. This suggests that totems were inherited through one’s mother, a conclusion Tennant-Kelly reached in her published account
931 Dr de Rijke states that right through the area there appears to have been a taboo on eating one’s own totem. Sometimes the entire tribe refrained from eating a certain animal or bird.
Male and female rituals and initiation ceremonies
932 Dr de Rijke states that the ethnographic record on ritual practices among Gaangalu people is limited.
933 Curr wrote in 1897 that:
Ornamental scars are made on the shoulders and thighs. Circumcision and the terrible rite are unknown. Teeth are knocked out, and the septum of the nose is pierced … On the day of a corroboree the performers retire to arrange the performance in secret. The male youths of eighteen have the rights of men conferred on them by means of secret ceremonies.
934 Dr de Rijke states that ethnographic field research by Kaberry in 1939 in the Kimberley region indicated that Aboriginal women also had elaborate ceremonial lives. He considers it to be probable that this was also the case among Gaangalu women.
935 Dr de Rijke states that increase ceremonies were rites, often performed by senior men, which aimed to effect a general enlivening of the country in all its aspects. Specific natural species require specific rites in certain locations. Dr de Rijke infers that the pre-sovereignty Gaangalu were likely to have engaged in such ceremonies.
936 Tennant-Kelly’s notes indicate that in 1934, ceremonial smoke was commonly used during periods of mourning and at funerals. The smoke was considered a purifying force. Dr de Rijke infers that these ceremonial activities were practised in the pre-contact period.
937 Dr de Rijke observes that Tennant-Kelly wrote that among the Kangalu (Emerald), the body of a deceased person was buried after being carried for a time, the Wuturu (moiety) facing the sunrise and the Yangaru (moiety) facing the sunset. At the funeral of a member of the Kuam, the relatives were “smoked” by the members of the opposite moiety to which the deceased belonged.
938 Tennant-Kelly noted that “among the remnants of ritual”, the most dominant were those of burial and mourning, the ritual of painting one’s “face and arms with white clay was fairly common”, as was ritual wailing. A customary practice to ensure the deceased could rest was to destroy the belongings of the deceased. She also noted that sometimes a fire is furtively lighted so that the ceremonial smoke may play its part. In a letter to Professor Elkin she described this as a “smoke ritual”. This ritual was also performed for those attending a funeral: after the funeral all close relatives were “smoked” in order to confound the spirit, that it might not see them.
939 Tennant-Kelly observed that during funeral rites, there appears to have been a “totemic emphasis”, including the re-enactment of the deceased person’s totem and customary wailing by all persons with the same totem, including those not part of the deceased’s language group. Ritual cutting of the body during mourning was also observed by Tennant-Kelly in Cherbourg in 1934. She also noted that at Cherbourg, old people many miles from their own country grieved to get back to their own tribal territory before they died in order to ensure their spirit’s safe return to its home.
940 The return of the spirit after death is part of what Dr de Rijke describes as a traditional law or custom involving, “an embodied relationship between people and their land and water”.
941 Dr de Rijke indicates that early ethnography specific to the claim area is largely silent on the embodied relationship between people and their land and waters. However, he draws inferences based on more general statements which are indicative of the embodied relationship between Aboriginal people from the region and their land and waters.
942 For example, Tennant-Kelly was reported to have said:
[T]hey had their own “spirit centres” in the land, to which they believed that their spirits returned after death. It is terribly important to them that they should die near one of these centres, and it seems dreadful to take old people to live far away from them.
943 Dr de Rijke states that the link between a person and his or her spirit centre was also encoded in that person’s “Yamba” name, which Tennant-Kelly noted was fairly general all through the Central and Western tribes: Yamba was the name of the place a person was born: for example, one informant was “Sandy Creek”, who was born near one and would return there as a spirit.
944 Tennant-Kelly also reported on the detailed geographic knowledge, personal emotional bonds and sense of sanctity of land and waters communicated by senior Aboriginal people at Cherbourg:
I am taking down the boundaries of different people. They remember these most clearly and it’s useless to try and trip them up on their local geography (quoted in de
[L]istening to the minute description of a spot hundreds of miles away one realised how tragic it is for these people to be so far from their places of tribal tradition and sanctity.
(Citations omitted.)
A system of authority emphasising the role of senior people
945 Dr de Rijke states that the anthropological literature about Aboriginal Australia allows an inference to be made that the pre-contact political system included an “acephalous gerontocratic” system, particularly revolving around the ritual standing of senior men. I understand Dr de Rijke to refer to a system by which important decisions were generally made by a group of senior men.
Responsibilities to manage and protect the land and waters
946 Dr de Rijke points to an early but undated archival reference that indicates Aboriginal people in the claim area sought to protect a site of significance from colonial interference:
[W]arlike Dawson River Aborigines ... maintained that he [i.e. the pastoralist Edmund George Lethbridge Wood] had built the [Calliungal] homestead on sacred tribal lands.
947 From this, Dr de Rijke draws a conclusion that the laws and customs of the pre-sovereignty society included a variety of responsibilities to manage and protect the land and waters.
948 The reference given by Dr de Rijke can be seen as evidencing a responsibility to protect sacred areas. It can also be seen as evidencing the responsibility of a clan group to more generally protect its land from trespass. Dr de Rijke has not identified any other responsibilities to manage and protect the land and waters.
The presence of landholding units which were small local groups (capable of description as hordes or clans) who recruited members mainly by patrilineal descent
Local groups which formed clusters or aggregations at a higher level of identification
949 The following summary is taken from material in Dr de Rijke’s first report under the heading, “System of inheritance of identity and generic and locality-specific rights in land through different genealogical links, including the inheritance of rights through male and female forebears as well as relations based on marriage and adoption.”
950 Dr de Rijke notes that early ethnographic records pertaining to the inheritance of identity, rights and interests among Gaangalu people are limited.
951 Tennant-Kelly’s unnamed “Kaingbul” informant appears to have asserted that a child inherits the territorial affiliations of its father, and the moiety, section and associated totems from its mother.
952 Similarly, Tindale’s informant, Fred Johnson, spoke about the Wadja (described as “closely related” and “allied” to Gaangalu) as follows:
A father has no say in his children; they belong to the mother.
A man takes his wife to live in his country; the children take the father’s language and take the father’s country as his.
953 Dr de Rijke concludes that there was a tendency to inherit rights to land patrilineally (following the father’s language). The records do not indicate the nature or importance of rights derived from one’s mother, but Dr de Rijke infers that such rights were important. That inference is drawn from detailed research on this topic in other places, such as a Northern Territory study regarding succession to land, ritual “managerial roles” and “primary” and “secondary” rights to Aboriginal estates. Dr de Rijke notes that a senior claimant, Tim Kemp, asserted that a person has rights in their mother’s country, including a right to access and hunt.
954 Based on Dr Maclean’s indication that a number of cases of adopted children have been identified and his experience of Aboriginal Australia more broadly, Dr de Rijke’s opinion is that adoption into the group of non-related persons was a pre-sovereignty Gaangalu practice.
955 Dr de Rijke states that rights based upon marriage may be regarded as contingent or secondary rights. On his reading of the anthropological literature more broadly, residential patterns can be inferred to have been patrilocal and virilocal: that is, children lived in their father’s country, and upon marriage a woman went to live in her husband’s country. In her husband’s country, the woman would be able to gather natural resources and undertake all other necessary tasks for matters both sacred and profane. Dr de Rijke notes that Phyllis Kaberry, who carried out her fieldwork in the Kimberley region of Western Australia, noted in 1939 that the women move about in their husband’s territories, forage for food and come to know the sacred sites and stones for increase ceremonies, but they do not regard it as their own, though they exercised most of the privileges of membership. Kaberry noted that a man frequently lives and hunts in the horde-countries of his mother, his mother’s mother, his father’s mother, his daughter’s husband, his brother’s wife, and his own wife, and that it is improbable that a man could not support himself outside his own territory. In Dr de Rijke’s opinion, men and women held a variety of rights and interests in land and water, both core and contingent, obtained through various means.
956 Dr Kenny considers the main traditional laws and customs relevant to territorial or local organisation in the Gaangalu cluster are membership recruitment by patrilineal descent to a group that belonged to a well-defined country. The region’s land tenure system at sovereignty was characterised by small local patrilineal landholding groups that at some “higher” level identified with a common label that was likely to have been of linguistic nature.
957 Dr Kenny also notes that regulation of access to land was an important feature of traditional laws and customs in traditional Aboriginal Australia. Breach of the strict protocols relating to access would often result in conflict. These regulations reflect rights of access for others, which might have included travelling through a local group’s country and hunting, gathering and camping on it. Traditional laws and customs emphasize the right and responsibility to determine who can enter and use country.
Customary use of natural resources.
958 Dr de Rijke states that little detail is known about the pre-contact use of natural resources by Gaangalu people.
959 Dr de Rijke observes that Curr described some uses of natural resources by “Kanoloo” people, including the use of opossum rugs (presumably for warmth and comfort), grease and ochre for ceremonial purposes, pipeclay and charcoal when in mourning, timber and grasses for buckets, baskets, nets (including for fish) and belts, and various rock for tomahawks. He also mentions timber spears, toy and war boomerangs, as well as shields. In Dr de Rijke’s opinion, it can be inferred that a variety of plants and animals were used for food, medicine, shelter, utensils, weaponry and ceremonial purposes. Resources such as ochre, stone, water and soil were also used for tools, paint and, presumably, construction.
Recognition of gender specific and other sensitive significant sites
960 Dr de Rijke states there is no early ethnography available which indicates there were gender specific and other sensitive significant sites at which certain access protocols applied. Based on his knowledge of the anthropological literature, he infers these existed in the claim area at sovereignty.
961 Dr de Rijke states that initiation sites, commonly known as Bora grounds, have not been used for many decades. He is uncertain as to when the last initiation ceremonies in the region were performed, but, as is almost universal across eastern Australia, they likely took place well before World War II. A number of Bora grounds in the claim area are known, and are generally regarded as male sites, which are seen to have the potential to negatively affect women if they visit such sites.
962 Dr de Rijke considers, based on Curr’s references to secret male ceremonies and previous research, that gender specific sites are likely to have existed in the claim area at sovereignty.
Intermarriage and trade across the regional society and beyond
963 An area of traditional law and custom that has not been agreed is what Dr de Rijke refers to in evidence as intermarriage and trade across the regional society and beyond.
964 Dr de Rijke considers that genealogies compiled by Tindale in 1938 point to marriages both among Gaangalu and between Gaangalu and non-Gaangalu persons in the region of the Fitzroy Basin. Curr noted for the “Kanoloo tribe”, that “[m]arriages take place both within and without the tribe”. Tindale’s data appears to confirm this conclusion. Dr de Rijke considers it is not possible to determine whether there was a certain rule or preference in decisions about marriages in the region.
965 I accept that it was an aspect of traditional law and custom that marriage could take place both among Gaangalu and between Gaangalu and non-Gaangalu persons.
966 Dr de Rijke states there are no records which indicate the nature of trade and exchange in the region at sovereignty. Based on his general knowledge of Aboriginal Australia, he infers that trade and exchange in the region was extensive and involved both material goods and items of a ceremonial nature such as song and dance. The early records indicate contact between Gaangalu people and other people in a large region of southern and central Queensland, and he considers it probable that those contacts included, among other things, trade.
967 I accept that it was an aspect of traditional law and custom that trade would take place between Gaangalu and non-Gaangalu persons.
The claimed rights and interests
968 An issue that is said to remain in dispute is the nature and content of the rights and interests held by members of any relevant regional society at the time of effective sovereignty pursuant to the traditional laws and customs.
969 The Amended Originating Application asserts that in respect of the areas where exclusive and non-exclusive rights and interests are claimed, the exclusive rights are: in relation to land areas, to possession, occupation, use and enjoyment to the exclusion of all others; and, in relation to water, the non-exclusive rights to hunt, fish and gather, take and use the water of the area for personal, domestic and non-commercial communal purposes.
970 In the remaining areas, the non-exclusive rights and interests claimed are rights to:
(a) access, be present on, move about on and travel over the area;
(b) occupy, use and camp on the area, but not to reside permanently, and for that purpose to construct non-permanent structures;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
(d) take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(h) teach on the area the physical and spiritual attributes of the area;
(i) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(j) be buried and bury native title holders within the area.
971 The evidence demonstrates that, at sovereignty, in respect of parts of the claim area I have determined were occupied by Gaangalu people, they exercised the asserted rights and interests. I find that they possessed such rights and interests under their traditional laws and customs.
Continuity of traditional law and custom
972 An issue to be determined under s 223(1)(a) is whether the native title claim group continue to possess the claimed rights and interests under traditional laws observed and traditional customs observed by them.
973 The applicant’s written submissions tend to merely recite the evidence of contemporary observation of a traditional law or custom and then shift to a broad statement to the effect that the evidence demonstrates continuity of that traditional law or custom. The submissions fail to examine in any detail the original law or custom against which continuity must be assessed, nor the evidence of continuity over the period from effective sovereignty until the period covered by the contemporary witnesses. The applicant’s submissions fail to address the important aspect of traditional law and custom concerning the presence of landholding units which were small local groups who recruited members mainly by patrilineal descent. This approach, as I have said, requires the Court to engage in a process of construction of what the applicant’s arguments might be and then address those assumed arguments.
974 The State submits that the applicant has not demonstrated that the asserted body of law and custom practised today constitutes a normative system in respect of the land and waters of the claim area which is sufficiently grounded in the traditional system such that that system can be said to be the same traditional law and custom (albeit adapted) as existed at sovereignty. The State submits that inherent in the generalised descriptions of traditional law and custom posited by the applicant is a very significant amount of loss of each of those laws and customs, such that no specifics can in fact be given. This level of generality is submitted to be a result, not only of the paucity of the ethnographic record, but also the paucity of detail of current law and practice. The State submits that so little of the traditional laws and customs is known that it is impossible to meaningfully assess either what has been lost, or the degree to which the modern system in fact reflects the traditional, including the means of connection by that traditional system to the land and waters of the claim area.
975 The State submits that direct evidence of law and custom remaining today is in many instances either generic or idiosyncratic, and does not touch on what might be inferred to be fundamental matters of traditional law and custom. The State argues that where features have an appearance of tradition, they are frequently not shared widely amongst the claim group or are undermined by conflicting evidence. It is submitted that the absence or loss of an extensive range of features that would be expected to be seen as features of traditional law and custom tells against continuity.
976 At this stage, it is useful to reiterate some of the principles concerning continuity discussed in Yorta Yorta. The plurality stated at [56] that the question under s 223(1)(a) of the NTA is, “whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs”.
977 The plurality at [83] posed the question: “Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples…?”
978 The plurality stated at [87] that acknowledgment and observance of the relevant laws and customs must have continued “substantially uninterrupted” since sovereignty. Otherwise, “the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned”.
979 The plurality observed at [89] that:
In the proposition that acknowledgment and observance must have continued “substantially uninterrupted”, the qualification “substantially” is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement.
980 The plurality continued at [89]:
Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.
981 In Bodney FC, the Full Court explained at [74] that a society may continue to exist even though the traditional laws and customs of that society may cease to exist:
Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society’s normative system are those that existed at sovereignty, because those laws and customs may change and adapt...An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.
982 In De Rose (No 2) FC, the Full Court observed at [58] that there:
…are likely to be cases in which a claim by a community or group succeeds notwithstanding that not all members of the community or group have acknowledged and observed traditional laws and customs. In such cases the question is likely to be whether the community or group, as a whole, has sufficiently acknowledged and observed the relevant traditional laws and customs.
983 In Narrier, Mortimer J (as her Honour then was) stated, referring to Yorta Yorta at [50]:
[822] Despite the breadth of the Court’s observations in these passages concerning the need for “continuous existence and vitality” in traditional laws and customs, it is in my respectful opinion important to recall that the definition in s 223 is concerned with rights and interests in land and waters held in accordance with traditional laws and customs. The focus of the definition, and indeed the focus of the NT Act, is on the body of traditional laws and customs observed in relation to the acquisition, possession and exercise of rights and interests in land and waters. The NT Act is not, for example, concerned with traditional laws and customs concerning social structures unless those laws and customs are relevant to the way rights and interests in land and waters are acquired and transmitted, or the content of those rights determined.
[823] In assessing continuity (if that shorthand expression might be used) the central question is whether the traditional laws and customs of a claim group which relate to the acquisition, transmission and exercise of rights and interests in land and waters are recognised and observed by claim group members as a living normative system in substantially the same form they had at sovereignty (allowing for permissible adaptation, as I discuss below).
[824] So, for example, in terms of weighing and assessing evidence about continuity, the fact that – as in this case – some traditional laws and customs such as those concerning the skin system, may be seen to have broken down and become somewhat confused is of less weight in the determination of the continuity required…
(Citations omitted.)
984 The Full Court in De Rose (No 2) FC stated at [63].
In our view, it cannot be stated more precisely than that the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters… [Section]223(1)(a) does not necessarily require claimants to establish that they have continuously discharged their responsibilities, under traditional laws and customs, to safeguard land or waters. Of course, the traditional laws and customs may provide that the holders of native title lose their rights and interests if they fail to discharge particular responsibilities. But s 223(1)(a) does not impose an independent requirement to that effect.
Consideration of continuity of acknowledgement and observance of traditional laws and customs
985 I will now turn to consider the evidence of continuity of acknowledgement and observance of traditional laws and customs. I will do so by reference to the laws and customs agreed by the parties to have existed at sovereignty.
986 Dr de Rijke and Dr Kenny reached agreement in respect of pre-sovereignty laws and customs and contemporary observation of them. Their formulation of the pre-sovereignty laws and customs correlate substantially, but not completely, to those agreed by the parties. In respect of contemporary observation, they agreed as follows:
Dr de Rijke | Dr Powell | Dr Kenny | ||
A number of the laws and customs are no longer observed by the claimants. For the purpose of consistency we refer to the list of laws and customs at question 2: | ||||
A | A classificatory kinship system | Observed | ||
B | A form of social organisation encompassing two named moieties and four named sections | Not Observed | ||
C | An understanding of mythology, including spiritual forces inhering in land and waters is still | Observed but attenuated | ||
D | A system of inheritance of identity and generic and locality-specific rights in land through different genealogical links, including the inheritance of rights through male and female forebears as well as relations based on marriage and adoption | Observed | ||
E | An understanding of totemism, including an association between totemism and kinship as well as personal totems called yuris | Observed but attenuated | ||
F | An understanding of spirits in the landscape, including appropriate ways of managing spiritual presence | Observed but attenuated | ||
G | Male and female rituals, including initiation ceremonies | Not Observed | ||
H | Intermarriage and trade across the regional society and beyond | Observed but attenuated | ||
I | Various funerary practices | Observed | ||
J | A system of authority emphasising the role of senior people | Observed | ||
K | An embodied relationship between people and their land and waters | Observed | ||
L | The inalienability of rights in land and waters | Observed | ||
M | A variety of responsibilities to manage and protect the land and waters | Observed | ||
N | An understanding of sorcery and traditional healing | Observed but attenuated | ||
O | Customary use of natural resources | Observed | ||
P | Recognition of gender specific and other sensitive significant sites at which certain access protocols apply | Observed | ||
987 The experts’ broad categorisation of a number of topics of traditional laws and customs as “observed but attenuated” tends to obscure questions of their relative importance and the extent of their depletion. Some laws and customs are more significant to rights and interests in land and waters than others. There has been much greater attenuation of some laws and customs than others. It is necessary to bear in mind that the issue to which the experts’ opinions are directed, and which it is necessary for me to determine, is whether the losses, changes and adaptations of traditional laws and customs are of such a nature and extent that it can no longer be said that the rights or interests asserted are possessed under the traditional laws and customs.
988 The applicant relied upon the evidence of 23 Gaangalu lay witness. Twenty witnesses were called to give oral evidence and were cross-examined, while the statements of three deceased witnesses were tendered.
989 The Indigenous witnesses, principally ordered by reference to their dates of birth, are:
Name | Year born | Age |
1. Ms Elizabeth May Jacobs | 1942 | 80 |
2. Mr Cedric White | 1947 | 75 |
3. Mr Desmond Hamilton | 1948 | 74 |
4. Ms Priscilla Iles | 1949 | 74 |
5. Ms Patricia Leisha | 1949 | 73 |
6. Ms Rosemary Hoffman | 1951 | 71 |
7. Mr William Phillip Toby | 1953 | 69 |
8. Mr Paul Hegarty | 1953 | 69 |
9. Ms Lilian May Harrison | 1954 | 68 |
10. Mr Colin Toby | 1955 | 68 |
11. Ms Margaret Kemp | 1955 | 67 |
12. Mr Rodney John Jarro | 1955 | 67 |
13. Ms Lynette Gail Blucher | 1957 | 65 |
14. Mr Dale Martin Toby | 1959 | 63 |
15. Ms Deborah Maree Tull | 1959 | 63 |
16. Mr Steven Raymond Kemp | 1960 | 62 |
17. Ms Lynette Ann Anderson | 1962 | 60 |
18. Mr Peter Mickelo | 1967 | 55 |
19. Mr James Robert Waterton | 1980 | 42 |
20. Ms Samantha Neilson | 1987 | 35 |
21. Ms Mona Barry | 1931 | Deceased |
22. Mr Robert Toby | 1958 | Deceased |
23. Ms Valerie Grace Hayes | Not provided | Deceased |
990 The years of birth of the witnesses range from 1931 to 1987. Taking, for present purposes, effective sovereignty to be about the mid-1850s, the oldest witness, Mona Barry, was born some 75 years after effective sovereignty while those born in the 1940s, were born some 85 years after effective sovereignty. The applicant places substantial reliance on the field notes taken by Tennant-Kelly in 1934 and Tindale in 1938, but there is little earlier ethnographic material concerning traditional laws and customs. There is, accordingly, a significant time gap about which there is very limited information. In addition, Tenant-Kelly’s and Tindale’s field notes provide only limited insight into the laws and customs prevailing at the time.
991 It is notable, that the experts’ reports and the other material relied on by the parties contain little analysis of the history of the regional society, including the Gaangalu, after effective sovereignty. There is little discussion of the great changes wrought following the settlement of the claim area and surrounding districts. That contrasts with the extensive evidence concerning violent encounters with Europeans, decimation of Aboriginal populations, movement away from their traditional lands, and their resettlement on reserves in proximate areas of Queensland given in cases like Malone (No 5) at [11]-[70].
992 There are two historical matters that are important to note. First, the Unoccupied Crown Lands Occupation Act 1860 (Qld) divided Queensland into 12 pastoral districts and established a process for claiming and leasing pastoral land. This led to a number of pastoral stations being established on substantial parts of the claim area from 1861 onwards. That was demonstrated by the maps of pre-1900 pastoral areas in evidence.
993 Dr de Rijke comments that by the early 1860s, the general region was marred by violence between settlers and Aboriginal people. He states that violent Aboriginal resistance to early colonial intrusions was common in the region from the 1850s to the 1870s, and that these violent encounters appear to have been based upon concerns such as the impacts on waterholes by numerous cattle and sheep and upon Aboriginal laws and customs concerning ownership, unauthorised access and the right to exclude outsiders.
994 Second, the Aboriginals Protection and Restriction of the Sale of Opium Act allowed Aboriginal people to be removed to reserves. The evidence suggests that many Gaangalu people, together with Aboriginal people from different language groups, were removed to reserves such as Woorabinda, Cherbourg and Palm Island.
995 Dr de Rijke’s first report relies on information supplied at Cherbourg by two Gaangalu women Charlotte Costello and Harriet Mummins, an unnamed “Kaingbul” man, a Wierdi man Abraham Johnson and other unnamed informants. Some of Tindale’s informants were interviewed at Woorabinda, which is within the claim area. Dr de Rijke makes only limited reference to the content of Tindale’s interviews, including to Fred Johnson, who gave information about inheritance of language and country.
996 As there is a paucity of evidence, whether ethnographic or directly from Gaangalu and other informants, concerning the Regional Society’s acknowledgement and observance of traditional laws and customs in respect of the claim area between the 1850s and at least the 1930s, the anthropologists have had to identify traditional laws and customs at a level of significant generality. The opinions given by the expert anthropologists of the content of the laws and customs of the regional society at sovereignty is largely a matter of inference from the laws and customs of classical Aboriginal societies.
997 Each of the lay witnesses identified themselves as Gaangalu. As has been discussed, the applicant framed the relevant society as a Regional Society consisting of Gaangalu, Garingbal and Wadja people. Accordingly, it must be determined whether there has been continued acknowledgement and observance by the Regional Society of pre-sovereignty laws and customs under which the Gaangalu hold the claimed rights and interests in the claim area. However, as the applicant did not call any Garingbal and Wadja witnesses, the issue must be determined on the evidence of the Gaangalu witnesses. The continuity of the Regional Society will be addressed separately.
998 One comment that must be made concerns the evidence of the descendants of William Toby I. Substantial parts of their evidence about their observance of traditional laws and customs were concerned with areas to the east of the Dawson River in the vicinity of Mount Morgan, Biloela and Thangool. I have found that these areas were not occupied by Gaangalu people at sovereignty. There is no doubt, however, that the descendants of William Toby are members of the claim group. I will proceed by considering the whole of their evidence, including relevant areas east of the Dawson River, upon an assumption that I may be in error in excluding those areas.
999 I accept the applicant’s submission, in accordance with the observation of Mortimer J (as her Honour then was) in Narrier at [822], that the focus must be on the body of traditional laws and customs observed in relation to the acquisition, possession and exercise of rights and interests in land and waters. I emphasise that the focus must also necessarily be in respect of the particular area of land and waters that is the subject of the claim.
1000 With that in mind, I will begin by considering the continuity of the agreed traditional laws and customs which relate most directly to the acquisition, possession and exercise of rights and interests in the land and waters of the claim area. It should be borne in mind that a number of aspects of those laws and customs overlap and interrelate.
The presence of landholding units which were small local groups (capable of description as hordes or clans) who recruited members mainly by patrilineal descent
Local groups which formed clusters or aggregations at a higher level of identification
1001 An agreed traditional law and custom concerns the presence of landholding units which were small local groups (capable of description as hordes or clans) who recruited members mainly by patrilineal descent. This traditional law and custom is directly relevant to possession of rights and interests in the claim area and inheritance of those rights and interests.
1002 Another, related, agreed traditional law and custom concerns the presence of local groups which formed clusters or aggregations at a higher level of identification.
1003 In their joint report, Dr de Rijke and Dr Kenny describe, correspondingly, a traditional, “system of inheritance of identity and generic and locality-specific rights in land through different genealogical links, including the inheritance of rights through male and female forebears as well as relations based on marriage and adoption”.
1004 The applicant’s submissions do not address the continuity of these laws and customs, which makes it necessary to effectively construct the argument and then address that putative argument.
1005 Dr de Rijke and Dr Kenny agree that at sovereignty: (i) land holding units were clans, whose members held proprietary rights and interests as a clan group at a local level (i.e. in a local clan estate); (ii) other, secondary rights were held by clan members in a broader area; and (iii) the local land owning clans formed clusters or aggregations at another level of identification which may have been a regional and/or linguistic identity and was not a land holding unit.
1006 Without repeating the evidence already discussed, I accept that the evidence establishes at least the following matters.
1007 First, the land tenure system of the region at sovereignty was characterised by small local landholding clan groups. These groups lived mainly in small family-based clans of approximately twenty to thirty people, who camped together in an area. The members of each group spoke the same language (subject to intermarriage and adoption).
1008 Second, the members of the Gaangalu clans patrilineally inherited what Dr de Rijke and Dr Kenny referred to as “primary” or “core” rights, and described in their oral evidence as “ownership” rights. Dr Kenny considers the main traditional laws and customs relevant to territorial or local organisation concern membership recruitment by patrilineal descent to a group that belonged to a well-defined area.
1009 Third, some rights in respect of land were inherited matrilineally. These are referred to by the anthropologists as “secondary” or “contingent” rights. It is unclear precisely what these rights specifically entailed in the Gaangalu context, but probably included usufructuary rights, such as accessing the land and hunting and gathering. Women who married into another clan moved into their husbands’ territories and also acquired such rights.
1010 Fourth, adoption was a common feature of the pre-sovereignty society. Children adopted into a clan group are likely to have acquired secondary rights and interests in the estate of that group.
1011 Fifth, regulation of access to land was an important feature of traditional laws and customs, which emphasised rights and responsibility to determine who could enter and use country.
1012 Dr de Rijke considers that there has been a shift from patrilineal forms of descent to cognatic forms of descent, by which a person inherits rights and interests through either their father or the mother. Dr de Rijke argues that the shift from a patrifilial system, or at least a patrifilial bias, to a cognatic practice represents a change of emphasis, and not a substantial interruption of traditional practices. In his view, the principle of cognatic descent implies a degree of choice concerning group membership where an individual’s parents are from two different Aboriginal groups. The individual may assert membership of both the father’s and mother’s group (or presumably either group).
1013 Dr de Rijke states that the claimants assert that if a person is a biological or adopted descendant of one of the claim group’s predecessors, that person is regarded as a member of the claim group. In contrast, however, the Originating Application (in its current and former versions), which was authorised by the whole of the claim group, confines its membership to biological descendants of the named apical ancestors, thereby excluding adoptees.
1014 Dr de Rijke indicates that the claim group members recognise each other as sharing a common identity, commonly expressed as “countrymen”. They also recognise that certain descent groups have particular connections with particular parts of the claim area. The recognition of such connections is evident, for example, in the way cultural heritage activities are organised between the descent groups, and in agreed-upon arrangements amongst descent groups when it comes to localised responsibilities for land, an arrangement referred to by members of the claim group as “speaking for country”. Dr de Rijke gives examples that the Toby descent group is recognised as having particular connections with the eastern part of the claim area, while the Kemp descent group has particular connections with the part of the claim area around Woorabinda and Blackdown Tablelands National Park. Other descent groups such as those including the Jarro, Harrison and Jacobs families are more connected with the region around Blackwater and Comet. Dr de Rijke indicates that these connections, and the rights and responsibilities that come with them, are generally based on family histories and the particular locations with which the predecessors of claimants were connected in the past. Dr de Rijke states that the recognition of variations in connection has been abandoned in favour of a holistic approach to shared identity under the umbrella of the “Gaangalu Nation People”.
1015 It may be noted that the evidence does not establish that different family groups associated with the area west of the Dawson River have responsibilities involving “speaking for” different parts of the west-side area. The Toby descent group derives from William Toby I, the only Gaangalu apical ancestor associated with the “east side”, so that a single family group has assumed responsibilities for the whole of the “east side”.
1016 In Dr de Rijke’s opinion, many of the traditional rights and interests, including the right to identify as a Gaangalu person and the right to teach children and strangers about the claim area, can be regarded as generic and shared amongst all claimants equally. He considers that others can be regarded as locality-specific rights distributed amongst descent groups, including the right to protect significant sites from harm and to represent a particular area in interactions with non-Gaangalu people. The right to take resources such as animals or timber is often regarded by claimants as a locality-specific right, with permission needed from those descent groups who assert responsibility for the area in question: members of the eastern descent group might seek permission from Gaangalu persons at Woorabinda if they seek to collect/hunt in the western area of the claim, and vice versa.
1017 Dr de Rijke notes that the right to exclude non-Aboriginal outsiders has been difficult to exercise since effective sovereignty. Robert Toby said that, according to oral history, Gaangalu predecessors killed numerous Yiman people considered to be trespassers from the south at a site known as Battle Mountain (i.e. Wandoo Mountain) in the claim area. His father had also shown him a site where Gaangalu predecessors fought European colonisers, after which the Aboriginal people were pursued to a site near Rannes where they were killed. An example of early Aboriginal responses to colonial incursion is found in the archival record held by Robert Toby stating that the warlike Dawson River Aborigines had maintained that the Calliungal homestead had been built on scared tribal lands on the west bank of the Dee River in the current claim area.
1018 Dr de Rijke notes that the historical record provides little indication of the ways rights and interests were distributed among constituent Gaangalu groups at sovereignty. In Tennant-Kelly’s field notes, Charlotte Costello’s “run” was described as “Emerald, Comet River, Blackwater, Dawson River (meet other here)”. Dr de Rijke’s opinion is that this likely indicates that Charlotte Costello held a range of rights and interests in the area so defined, but says it is unclear whether this “run” can be equated with a clan estate.
1019 In Dr de Rijke’s opinion, the contemporary distribution of rights and interests in land and waters among Gaangalu claimants is most likely the result of historical change including long-term residence in regional townships, work at pastoral properties, and, in other cases, removal from country.
1020 Dr de Rijke states that colonial violence and significant population decline, for instance as a result of the reprisals against the Aboriginal populations of the Dawson Valley following the Hornet Bank murders in 1857 and the Cullin-la-Ringo murders in 1861, likely contributed to both the disappearance and restructuring of local groups and their concomitant locality-specific rights and interests.
1021 Dr de Rijke infers that at sovereignty there were a number of Gaangalu clans with responsibilities for, and rights in, their estates. However, there is no information available about the nature of constituent groups and their territorial connections at sovereignty.
1022 Dr de Rijke further infers the emergence of “focal areas” of Gaangalu descent groups east and west of the Dawson River following colonial violence, population decline, sedentary lifestyles and congregation at rural town camps and cattle stations. He considers that these focal areas may be regarded as adapted forms of precontact clan estates, but there are no detailed historical ethnographic materials which permit closer examination. Based on contemporary evidence and the biographical information available for the claimants’ forebears, it appears particular sets of Gaangalu families have maintained a long history of connection with particular areas of the claim. Whether these areas were part of their forebears’ clan estate at sovereignty (in contrast to the possibility that those areas were the estate of a different but allied clan) is a question Dr de Rijke is unable to answer.
1023 Despite these difficulties, Dr de Rijke considers it probable that contemporary forms of differentiation within the claim group are adapted expressions of traditional principles. Dr de Rijke also argues that the claim group, as a collective of descent groups genealogically related to a set of named ancestors who had a connection with the claim area at effective sovereignty, holds proximate rights and interests to the claim area based on shared internal cultural characteristics and connections, historically asserted and acknowledged within the Regional Society.
1024 In his oral evidence, Dr de Rijke indicated that rights in one’s mother’s estate are referred to as “secondary rights”, and that, in certain circumstances, where clans became unviable or extinct, people with secondary rights, based for example, on one’s mother’s affiliation, could move into and take responsibility of the vacant estate. He did not elaborate on what those circumstances were, nor has he purported to apply such a principle to the circumstances of the present case.
1025 In her report, Dr Kenny observes that there have been many changes and adaptations to the laws and customs of the GNP cluster since effective sovereignty, which mainly relate to initiation ceremonies, languages and cosmological beliefs and social organisation. She considers that the adaptations of laws and customs relating to land ownership in the application areas have their origin in tradition (i.e. a shift from patrilineal descent to cognatically-reckoned relationships). She states that the process of local group amalgamation under a “language label” and the shift from patrilineal descent to cognatic relationships to a forbear that determines an individual’s membership of a native title group has been very common in settled south-east Australia including central Queensland.
1026 Dr Kenny states that the “tribal” and/or “linguistic” level of identification became more prominent in the course of the 20th century due to severe demographic losses and the displacement of Aboriginal populations. In time, these small patrilineal local groups of the GNP cluster amalgamated under a number of linguistic labels as the knowledge of their landed distinctions lost currency – and became single groups with particular identity labels.
1027 Dr Kenny states that significant cultural loss and depletion has occurred in the GNP cluster application areas, but there are features of the claimants’ society that can be interpreted as having their origin in tradition, such as cognation. She observes that initiation ceremonies and other traditional gatherings are no longer held, their languages are not spoken on a daily basis and parts of their social organisation have become irrelevant and fallen into disuse.
1028 Dr Kenny notes that changes to traditional law and custom relating to land and waters in the application areas have occurred because of the need to adapt to the challenges of settlement. The territorial organisation has shifted from small patrilineal local groups who owned parcels of land within a larger territory associated with a linguistic label to large landholding units owning together a “language” territory in which they all have the equal rights and interests.
1029 Dr Kenny states that, while, at effective sovereignty, membership to a local group was obtained by patrilineal descent, contemporary groups recruit their members by cognatic transmission. She is of the view that cognatic descent is the usual way Aboriginal people are recruited today in settled areas of Australia.
1030 Dr Kenny states that in classical Aboriginal anthropology, succession was one way for dealing with “orphaned” country. The criteria for succession may include ritual knowledge of a particular country; a close genealogical relation to its deceased owners; continued residence over generations on country; a shared dreaming (track); and membership of the same moiety or semi-moiety. She indicates that succession requires that a group already holding secondary rights to country legitimately convert these into primary landholding rights through kinship ties, conception, birth, ritual knowledge, or moiety affiliation. She indicates that people who were in the process of succeeding to an area in the first part of the 20th century for various reasons are likely to have been doing this based on potential pre-existing rights and interests and subsequent long-term residence in the area that allowed them to acquire knowledge about the area from traditional owners.
1031 Turning to the Gaangalu witnesses, they may broadly be described as divided between those whose primary connections are to the claim area west of the Dawson River and those whose primary connections are to the east. The division seems to be based upon the areas where their forbears were born or associated with.
1032 The witnesses descended from William Toby I, (Lynette Blucher, Rosemary Hoffman, Dale Toby, James Waterton and William Philip Toby, Colin Toby, Deborah Tull, Mona Barry, Valerie Hayes and Robert Toby), generally consider their country to be east of the Dawson River, encompassing places like Banana, Mount Morgan, Baralaba, Dululu, Rannes, Biloela and Thangool. They regard the members of the claim group west of the Dawson River as being part of the “same mob”, but they do not “speak for” the west side.
1033 On the other hand, the Gaangalu witnesses descended from ancestors associated with the west side, (Margaret Kemp, Desmond Hamilton, Cedric White, Paul Hegarty, Rodney Jarro, Steven Kemp, Priscilla Iles, Patricia Leisha, Samantha Neilson, Lillian Harrison, Elizabeth Jacobs and Peter Mickelo), generally consider their country to be west of the Dawson River, and they do not “speak for” the east side.
1034 However, the evidence of most of the Gaangalu witnesses was that all the areas within the claim area are Gaangalu country. Notably, however, Mona Barry’s evidence described Gaangalu country as being around Banana, Dawson Valley and Moura.
1035 The evidence of most of the Gaangalu witnesses was to the effect that while all the land within the claim area is Gaangalu country, they have rights and interests either the east side or west side of the Dawson River. In particular, those from the west side cannot “speak for” the east side, and vice versa. I understand the right to “speak for” country to encompass making important decisions about the land, including giving permission to other Aboriginal people to enter the land. There seemed to be a common, although not uniform, view that the permission of those who “speak for” the land on the opposite side of the Dawson River to be obtained when entering their country.
1036 Many of the Gaangalu witnesses said they did not “speak for” country on the opposite side and would get permission to go there. For example, Lynette Blucher said she has a right to be included in and to make decisions about country but only on the east side of Gaangalu. Dale Toby said that over the other side of the Dawson is not his country. The evidence concerning who has the right to “speak for” country and the need to ask for permission to enter suggests that most, if not all, of the claimed rights are considered to be held differentially between the east side and west side claim group members.
1037 In contrast, the Originating Application (in its current and previous versions), authorised by the whole of the claim group, claims that, “[n]ative title in the determination area is held by the native title claim group”. That seems to be an assertion that all Gaangalu people hold all the claimed rights and interests in the whole of the claim area. The Amended Statement of Claim is ambiguous, stating that, “rights and interests in relation to the land and waters of the claim area remain communal in the sense that they are not individually owned but rather are held collectively and in aggregate by the groupings with affiliations and particular rights to the particular area concerned albeit they are allocated intramurally”, and, “their generic and locality-specific entitlement to rights and interests in land are acquired through descent from a Gaangalu parent”.
1038 In written submissions, the applicant contends that, “the native title claim group members are, in aggregate, the holders of all the native title rights and interests claimed”, and the rights and interests can be described as either “communal” or “group” rights and interests. The submissions also contend that native title, “is held by the members of a single GNP community, albeit there is an intramural allocation of rights amongst various family groups and individuals within the community”. The postulated intramural allocation seems to be that the claimed rights and interests will be allocated as between people with connection to the east and west sides of the Dawson River respectively.
1039 This aspect of the applicant’s submissions is difficult to understand, but they seem to assert that as a matter of adapted traditional law and custom, some members of the claim group possess the claimed rights and interests only east of the Dawson River, while others possess the claimed rights and interests only west of the Dawson River. Despite that, from the form of the Originating Application, the applicant seeks a declaration that the whole of the Gaangalu people hold undifferentiated rights and interests in the whole of the claim area. That inconsistent conception of the case seems to me to raise some unexplored complexities.
1040 In any event, it is necessary to examine the consistency with traditional law and custom of the contemporary tenure system involving either undifferentiated rights and interests across the claim group and claim area, or differentiated only by connection of members of the claim group with either the east side or west side.
1041 As the evidence of Dr de Rijke and Dr Kenny makes clear, the claim area was likely to have been occupied at sovereignty by a number of small clans, whose members held rights and interests in a particular clan estate. Inheritance of primary (or “ownership”) rights in land was patrilineal, although secondary rights and interests (which appear to be usufructuary rights) could be inherited matrilineally. Some members of some clans are likely to have had some secondary rights and interests in respect of lands of some other clans through intermarriage or adoption. The evidence indicates that when a woman married a man from another clan, she would move to the estate of the husband and acquire usufructuary rights there. The evidence does not demonstrate whether a woman’s children would inherit the secondary rights that she held in her birth estate, but it seems apparent that her children would not inherit primary rights in her birth estate since they were inherited patrilineally.
1042 Traditional laws and customs regulating relationships to land involved different clan groups possessing rights and interests for different areas and, in addition, within a clan group, its members possessing differential rights and interests in respect of the clan’s estate. There is no suggestion by the anthropologists that all people identified as Gaangalu had rights and interests in all areas occupied by other Gaangalu people.
1043 There is very little evidence about the clan groups in the claim area. Nothing is known about the boundaries, focal sites or dreaming or totemic connections by which they may have been traditionally conceived or clustered. It can be surmised that there must have been rules and protocols for one clan to access and use the land of another, but nothing is known about their content in the claim area. Dr de Rijke explicitly states that there is no information about the nature of constituent Gaangalu groups and their territorial connections at sovereignty.
1044 The contemporary system involving all Gaangalu people having uniform rights and interests in the whole of the claim area, or divided only as between those associated with the east side or west side, is in stark contradistinction to the laws and customs applying at sovereignty. The making of a claim of such undifferentiated, or substantially undifferentiated, rights involves an acceptance, consistent with the evidence, that the regulation of rights and responsibilities in the claim area through multiple clan groups has disappeared.
1045 It is necessary to consider whether two aspects of change from the pre-sovereignty tenure system can be regarded as a permissible adaptation of pre-sovereignty law and custom. The first is the shift from patrilineal inheritance of primary rights and matrilineal inheritance of secondary rights to cognatic inheritance of both primary and secondary rights (ie. from either parent). The second is the shift to all Gaangalu people holding rights in the whole of the claim area, or some holding rights in the whole of the east side and some holding such rights in the whole of the west side.
1046 In considering the first aspect (the change to inheritance of both primary and secondary rights and interests in land cognatically), it is necessary to identify what rights and interests are the subject of the native title determination application. That is because s 223(1)(a) of the NTA is concerned with whether the particular rights and interests claimed are possessed under traditional laws and customs.
1047 A number of the rights and interests that have been claimed in the application can be described as usufructuary, including: rights to access, be present on, move about on and travel over the area; occupy, use and camp on the area temporarily; hunt, fish and gather on the land and waters of the area; take and use natural resources and water; and light fires on the area. I infer that the secondary rights that were inherited matrilineally at sovereignty were rights of this kind. I also infer that the primary rights, inherited patrilineally, must have encompassed such rights, since it cannot be imagined that “ownership” of the land would not carry the right to be on and use the land for subsistence and other purposes. In this way, such usufructuary rights and interests must have been inherited from both parents under traditional law and custom. To the extent that the present system involves inheritance of usufructuary rights and interests from either parent, it is consistent with traditional laws and customs.
1048 The position is otherwise with the contemporary system of inheritance of primary rights and interests in the land from either parent. Such rights were inherited patrilineally under traditional laws and customs, subject to an exceptional circumstance. That exceptional circumstance was that people with secondary rights could take responsibility for a vacant estate where a clan became unviable or extinct, but only where certain criteria of the kinds described broadly by Dr Kenny (discussed below) were met. However, that was an exceptional circumstance, whereas the assertion by the claim group is that cognatic inheritance of primary rights is the norm.
1049 The rights and interests claimed in the application that appear capable of description as primary (or “ownership”) rights and interests include: possession, occupation, use and enjoyment to the exclusion of all others (claimed in some parts of the claim area); conducting ceremonies in the area; maintaining places of importance and areas of significance; teaching on the area the physical and spiritual attributes of the area; and being buried and burying others within the area.
1050 The contemporary system of inheriting primary rights from either parent runs into the problem of how it is that women are now capable of passing to their children primary rights that they were incapable of passing down under traditional laws and custom. The evidence does not explain how children could have inherited primary interests from their mothers under the traditional system or some adaptation of the traditional system. The contemporary system concerning inheritance of primary rights and interests from either parent law has been adopted since sovereignty, and cannot be described as a mere adaptation.
1051 The second aspect of change from the pre-sovereignty tenure system that must be considered is the contemporary conception of all Gaangalu people holding rights and interests in the whole of the claim area, or differentiated only by some Gaangalu people holding rights in the whole of the east side, and others holding such rights in the whole of the west side. The claim must be that the Gaangalu people as a whole, or differentiated only by connection to the east side or west side, have succeeded to the rights and interests of the clan groups under or through traditional laws and customs of the Regional Society. Otherwise, such succession would not involve adaptation of traditional laws and customs, but adoption of new laws and customs.
1052 However, here there is a lack of cogent evidence concerning how traditional succession laws may have operated in the circumstances of the Gaangalu. In fact, I do not understand the expert evidence to go so far as to express any opinion that such laws and customs did operate to allow the transition to the contemporary system.
1053 Dr Kenny states that in classical Aboriginal anthropology, succession was one way for dealing with “orphaned” country, and the criteria for succession included ritual knowledge of a particular country; close genealogical relation to its deceased owners; continued residence over generations on country; a shared dreaming (track); and membership of the same moiety or semi-moiety. She indicates that succession requires that a group which already holds “secondary” rights legitimately convert them into primary landholding rights through kinship ties, conception, birth, ritual knowledge, or moiety affiliation. Dr Kenny is also of the view that people who were in the process of succeeding to an area in the first part of the 20th century for various reasons are likely to have been doing this based on potential pre-existing rights and interests and subsequently long-term residence in the area allowed them to acquire knowledge about the area from traditional owners.
1054 However, Dr Kenny has not engaged in an analysis and application of the succession laws and customs she identified that may have allowed the whole of the Gaangalu to succeed to either the whole of the country, divided between the whole of the east side or the west side. That seems to be because of a lack of ethnographic and other evidence that would allow such an analysis to occur. There is, for example, no evidence of whether the required combination of long-term residence over generations, ritual knowledge, shared dreaming tracks and membership of the same moiety to allow that succession to occur was present, particularly in the decades after the dispersal of the Gaangalu through the establishment of pastoral stations. That is in a context where the evidence indicates, that at least by the 1930s, the Gaangalu had been largely removed from their land, the moiety system was no longer substantially observed, there was a reluctance to pass on “tribal lore and totemic secrets” to uninitiated men, and dreaming track mythology had been substantially lost.
1055 Dr de Rijke expresses the view that the emergence of “focal areas” of Gaangalu descent groups east and west of the Dawson River may be regarded as adapted forms of precontact clan estates, but he acknowledges there are no detailed historical ethnographic materials which permit closer examination of that issue. Despite this, Dr de Rijke considers it probable that contemporary forms of differentiation within the claim group are adapted expressions of traditional principles. He argues that the claim group, as a collective of descent groups genealogically related to a set of named ancestors who had a connection with the claim area at effective sovereignty, holds proximate rights and interests to the claim area based on shared internal cultural characteristics and connections.
1056 However, Dr de Rijke has not engaged in any specific analysis of what the traditional laws and customs of the Gaangalu speaking clans concerning succession may have been, and how those rules may have operated in the present case. Again, that may be because such analysis would require, as Dr Kenny alludes to, consideration of matters such as long term residence on the land over generations, kinship ties, conception, birth, ritual knowledge, moiety affiliation, dreaming tracks, and application of those matters over time since European settlement. Again, any such analysis would suffer from a paucity of information concerning the land holding clans in the claim area, their locations and their laws and customs concerning succession. Mere genealogical connection and connection with the claim area has not been demonstrated to allow succession of the kind contended for here, such that the whole of the Gaangalu hold undifferentiated rights and interests in the whole of the claim area.
1057 In the Report of Conference of Experts held 20 February 2019 in Brisbane, at one point, Dr de Rijke and Dr Kenny agreed that, “The traditional succession processes ensured that there was no ‘orphaned’ country”. I do not interpret this expression of opinion that there was any traditional process of succession in the case of the Gaangalu. There has been no analysis of the evidence to support any such conclusion. I do not accept that the evidence demonstrates a traditional process of succession.
1058 The applicant’s contention that the Gaangalu may possess differential rights and interests based on a division as between the east and west of the Dawson River suffers from similar difficulties. The evidence does not adequately address the basis under traditional law and custom for that form of succession. To the extent that Dr de Rijke considers that particular family groups are considered to have particular responsibilities for particular areas, it has not been demonstrated that this originates in the tenures of clan groups, rather than more recent association with the areas. Further, that division as to certain family groups “speaking for” certain areas is not borne out by the evidence in relation to the west side. In any event, for the reasons I have given, much of the claim area to the east of the Dawson River was not occupied by Gaangalu people at sovereignty, including the areas around Mount Morgan and Biloela about which much of the evidence for the east side was given. The support expressed by Dr de Rijke for such a division is grounded in his underlying opinion that the whole of the claim area is Gaangalu country, and therefore loses force. I do not accept that the evidence demonstrates a traditional process of succession into a binary east-side and west-side division.
1059 A further difficulty is that even if there was a legitimate process of succession by the whole of the Gaangalu to the whole of the claim area, or differentiated by reference to east and west, the evidence does not explain how, under traditional law and custom or some permissible adaptation, there was a conversion of inheritance rules from patrilineal inheritance of primary rights to a system of inheritance of those rights from either parent, such that all Gaangalu people have the same rights and interests including the rights to “speak for” country.
1060 The available evidence demonstrates severe disruption to the fabric of Aboriginal occupation of the claim area following European settlement, accompanying violence and displacement, and then extensive removal to reserves including Woorabinda, Cherbourg and Palm Island. The depletion and forced removal of clan groups is consistent with consequential loss of traditional law and custom by which they held rights and interests in a particular area.
1061 Dr de Rijke implicitly acknowledges the loss of original connections to the land in saying that regional towns and cattle stations became the prominent points of reference as a result of dislocation. Dr de Rijke’s tentative view that congregation in town camps and cattle stations, “may be regarded as adapted forms of pre-contact clan estates”, cannot be accepted. The evidence fails to demonstrate that those groups were constituted or operated according to an adapted form of traditional law and custom, rather than post-sovereignty colonial connection to town camps and cattle stations.
1062 Dr de Rijke refers to Tennant-Kelly’s recording in 1934 that Charlotte Costello’s “run” extended from Emerald to around Blackwater and Bluff, and considers that this indicates that she held a range of rights and interests in that area. I do not accept that this single, ambiguous description is sufficient to establish that she had rights and interests in the whole of that area at that time, nor any extrapolation that the Gaangalu people as a whole held such rights and interests at that time. In addition, to the extent that Dr de Rijke may rely on Harriet Mummins’ location of Gaangalu at “Dawson R – Uringa (top of R)”, that does not provide any indication that the Gaangalu people as a whole held such rights and interests in that area at that time.
1063 Dr de Rijke frankly states:
In my opinion, the contemporary distribution of rights and interests in land and waters among Gangulu claimants is most likely the result of historical change including long-term residence in regional townships, work at pastoral properties, and, in other cases, removal from country.
1064 That opinion concerning the consequences of “historical change” seems inconsistent with any claim that the shift to the whole of the Gaangalu people holding undifferentiated, or substantially undifferentiated, rights and interests in the whole of the claim area is merely an adaptation of traditional laws and customs.
1065 I am not satisfied that the applicant has demonstrated that the asserted undifferentiated native title rights and interests held by the claim group as a whole is a permissible adaptation of traditional law and custom, rather than a post-sovereignty construct. Further, I am not satisfied that any differentiation by reference to the east side and west side is a permissible adaptation of traditional law and custom.
1066 For these reasons, I conclude that the changes from the pre-sovereignty tenure system to the contemporary system as a whole have not been shown to be in accordance with, or an adaptation of, traditional law and custom.
Inalienability of rights in land and water
1067 An aspect of the pre-sovereignty law and custom was that rights and interests in land and waters were inalienable. The State accepts that the members of the claim group continue to believe in the inalienability of such rights and interests.
1068 I observe that Dr de Rijke expressed the opinion in his first report that there is convincing data in Tennant-Kelly’s notes to support the view that Gaangalu territory extended west beyond the boundary of the current claim area, particularly around Emerald. It is unclear how the contemporary conception of the Comet River forming the western boundary of Gaangalu country and the failure of the applicant to claim the area further west towards Emerald fits with the traditional law and custom of inalienability of rights. However, the State did not seem to take this point and I will not consider it further.
1069 It may be noted that in Wyman FC, the Full Court observed at [290]:
These proof difficulties are not overcome by noting that Professor Sutton accepted that the Bidjara continue to share such concepts as communal interests in country and the inalienability of country. These concepts are no doubt important. Without them, it would perhaps be impossible to prove a continuing traditional normative system. But of themselves they do not remove the need for claimants to prove a system of traditional laws and customs they adhere to and under which it is said rights and interests are possessed.
1070 A continued belief in the inalienability of land and waters is important, but is not of itself a sufficient basis to prove the continuity of system of traditional law and custom under which rights and interests in land are possessed.
1071 Although it was not separately identified in the experts’ reports, I accept that the contemporary concept of communal ownership, in the sense of rights and interests being held collectively, is founded in traditional law and custom. That must be qualified, however, by change to the contemporary system of undifferentiated rights and interests.
An understanding of mythology, including spiritual forces inhering in land and waters.
An understanding of spirits in the landscape including appropriate ways of managing spiritual presence.
An embodied relationship between people and their land and waters. Various funerary practices
1072 The traditional laws and customs agreed between the parties include:
an understanding of mythology, including spiritual forces inhering in land and waters;
an understanding of spirits in the landscape, including appropriate ways of managing spiritual presence;
an embodied relationship between people and their land or waters;
various funerary practices.
1073 As there is overlap between these aspects of law and customs, it is appropriate to deal with them together.
1074 The applicant submits that the lay and expert evidence is littered with numerous accounts that the Gaangalu possess and continue to acknowledge and observe a rich heritage of mythological stories and continued spiritual connection to the claim area. They submit there are numerous places of special significance deriving from myths and spiritual forces and that the evidence makes reference to mythological phenomenon and spirits including: calling out to the ancestors for protection; getting sick or lost if failing to introduce strangers to the claim area; the spirit of deceased Gaangalu people returning to the claim area; the Tall Man, Djanjjarris and Mundagarra; and smoking ceremonies. The applicant argues that, in this way, the Gaangalu have an unbroken, or at least adapted, spiritual connection with the claim area consistent with their traditional laws and customs.
1075 Dr de Rijke notes that the earliest reference to Gaangalu mythology is found in a statement by Harriet Mummins to Tennant-Kelly in 1934 in Cherbourg, describing a Mundagarra rainbow snake myth. He also refers to information provided by Charlotte Costello to Tennant-Kelly about a “dangerous Devil” on an unnamed mountain who would “smash you up with his nulla”.
1076 In an article entitled Tribes on Cherbourg Settlement, Queensland written in 1935, Tennant-Kelly observed that the older people guarded their religious secrets very jealously from the young men and women who had been reared since birth with white people. She also observed that the young men are not initiated and, are therefore, regarded as not being suitable recipients of the tribal lore and totemic secrets.
1077 Dr de Rijke comments that many of his informants referred to Mundagarra or the places it is said to inhabit, including the sandstone cliffs and Rainbow Falls at the Blackdown Tableland, a spring in the Dawson Range, Niagara Falls, Redbank on the Mimosa Creek, Wallaby Scrub (Five Mile), a spring at the Duke White Scrub near Woorabinda, a creek near Blackwater, a pool at the foot of the Black Down Tablelands, Five Mile Lagoon near the Mackenzie River, Piebald Mountain and a deep waterhole at its base, a deep waterhole which forms the beginning of the Don or Dee River, and rock formations near Mount Morgan. Sites such as Mount Scoria, Scab Hill, Lake Victoria, a “Bunya” waterhole, Cattle Creek and a waterhole in the Calliope Range are said to be spiritually dangerous. I note that although various spellings have been used in evidence, I will adopt “Mundagarra” for the sake of consistency.
1078 Dr de Rijke considers that based on the early recording by Tennant-Kelly and contemporary statements, it can be concluded that both the creative and destructive potential of the mythological Rainbow Serpent continues to be recognised.
1079 Dr de Rijke states that it may be inferred that mythological narratives were more numerous and elaborate at sovereignty, although few texts have survived to confirm this. However, he considers that the underlying narrative which describes a landscape with sentient forces that are both creative and destructive appears to have continued substantially uninterrupted.
1080 Dr de Rijke observes that the claim area is seen by the claim group to be inhabited by ancestral Old People and spiritual beings of varying kinds. These spirits are seen to enforce appropriate conduct on country. Dr de Rijke sets out information obtained from the witnesses, including Patricia Leisha, Rodney Jarro, Margaret Kemp and Robert Toby, concerning their spiritual beliefs. It may be noted that one of the informants, Royce Richardson, is no longer regarded as a member of the claim group.
1081 Dr de Rijke indicates that as ancestral landscape is regarded as sentient and potentially harmful, the claimants assert that appropriate protocols must be followed to ensure safety. Dr de Rijke gives examples of members of the claim group introducing strangers to the country to ensure their safety and welcome them and states that senior claimants also acknowledge the Old People when travelling on country.
1082 Dr de Rijke states that a belief that upon death the spirit will return to Gaangalu country is associated with a sense of belonging, framed in terms of ancestral Old People, sociolinguistic identity and a sentient Gaangalu landscape. He notes that in 2018, Steven Kemp was organising the return and bark re-burial of his grandfather at Woorabinda. Some claimants from the Lizzie Tiger (Blackwater) descent group gave examples of the desire by senior people to return to their country.
1083 Dr de Rijke indicates that an additional aspect of the sentient ancestral landscape and the intimate bonds between people, land and waters and ancestors is found in relationships with physical objects from the claim area. There is a belief that where such objects are not related to the person, destructive consequences may follow.
1084 Dr de Rijke describes a difficult relationship between beliefs about the (meta)physical potential of the sentient landscape and the realities of intense resource extraction occurring on and around the claim area. He notes that Marie Kemp explained that they ask the Old People what to do and weep inside, but she considers that if they remove artefacts, it does not remove their connection to that area. Dr de Rijke considers that this indicates that cultural heritage protection activities are informed by the consubstantiality of ancestral country and that claimants assert that all material objects found during cultural heritage protection activities ought to stay on the claim area. They are removed only where they are under direct threat, but removed to a location as close to the original location as possible.
1085 Dr de Rijke considers that members of the claim group regard the claim area as a sentient landscape inhabited by ancestral Old People and spirits, which demands that certain protocols be followed. This includes the duty for those who properly belong to introduce those with insufficient knowledge, to avoid unnecessary disturbance of the physical environment and to appease the spiritual world in order to avoid destructive consequences. He considers that such beliefs can be linked to the early ethnographic references found in Tennant-Kelly which also detail aspects of the sentient landscape in terms of (meta)physical danger and human protocol.
1086 In Dr de Rijke’s supplementary report, he says, “the esoterica of myth and ritual are not fundamental to the maintenance of connections with, and acquisition of rights in, land and waters”. He considers that the attenuation of mythology does not necessarily lead to a loss of connection.
1087 The evidence of the Gaangalu witnesses is consistent with Dr de Rijke’s opinion that members of the claim group regard the claim area as a sentient landscape inhabited by ancestral Old People and spirits, demanding that particular protocols be followed.
1088 The witness gave evidence of belief in special spiritual places, the presence of spirit ancestors, the importance of burial on country, spiritual or mythological experiences, the use of smoking ceremonies, and spiritual or mythological stories, including of Tall Man, Djandjarrdi (little hairy men) and Yuiniji (a ghost or spirit).
1089 The witnesses referred to Mundagarra, the rainbow serpent, but their understanding of its role was not detailed and was not always consistent.
1090 In respect of the east side, Dale Toby’s father told him that Mundagarra created all the creeks and ranges around the Callide Dawson Valley area, and the boundaries, which are the Dee, Don and Dawson Rivers. James Waterton said that Mundagarra looks after Gaangalu people. Lynette Blucher said that Mundagarra created the Dawson River and all the creeks and streams that flow into the Dawson River. Deborah Tull said that when travelling from Rockhampton to Mount Morgan the shape of Mundagarra can be seen, there are boulders on the range which are the Mundagarra eggs, and the top of Piebald Mountain is where the Mundagarra would rest and keep warm.
1091 William Toby gave a more detailed account of Mundagarra travelling and forming the land, starting at Wura down to Piebald Mountain, living in a lagoon in Eulogie, travelling to Mount Morgan, forming the rivers, the Dee River, and laying her eggs past Box Flats or Blacks Flats (the rock formations at Box Flats are her eggs), making fish traps past Box Flats, and coming to rest on top of Razorback Range.
1092 Colin Toby said that Bald Mountain is shaped like a snake and is where the big snake used to wrap itself around and sun himself. The big snake also made the water holes and creeks, particularly the creek from Mount Morgan to Dululu. That is their connection to country. They were always told to respect Bald Mountain but they cannot go swimming alone in the waterhole.
1093 It may be seen that the east side witnesses’ understanding of Mundagarra stories and its role in respect of the Gaangalu and the landscape varied widely.
1094 In respect of the west side, Margaret Kemp said the Mundagarra is a Gaangalu guardian and they are connected to its spirit. It lives on country where there is a big body of water and travels down the Dawson River, the Mackenzie River, to other lagoons and along the rivers at the base of the Blackdown Tableland, and north and south along Mimosa Creek. There are “wobbly country” places where the Mundagarra comes up out of the ground, including between Springsure and Blackwater.
1095 Cedric White was told about a place where Mundagarra lives near Woorabinda. Mundagarra protects Gaangalu people and country. Mr White was taught to avoid places of this kind.
1096 Paul Hegarty spoke of Mundagarra in Cherbourg, which travels on Gaangalu country and in the waterways. In cross examination, he first said that Blackdown Tablelands is sacred because of the water and mountain, but later agreed that it may have been because of Mundagarra creating the waterways through the mountains.
1097 Rodney Jarro said that Mundagarra inhabits watercourses and starts at the head of Mimosa Creek at Blackdown Tableland and goes to the back of the hospital at Woorabinda, where Mr Jarro’s sister was told not to swim because the Mundagarra is there.
1098 Mona Barry’s grandmother taught her that Gaangalu people are not allowed to swim at a Mundagarra place.
1099 Steven Kemp’s father told him that the Mundagarra is the creator of everything on country, starting at the heads of rivers and pushing up land to make the rivers and creeks. Mundagarra also gave everyone their totems. Mundagarra lives at different places such as the Blackdown Tablelands, Rainbow Falls and Niagara Falls and near the Dawson Range before Duaringa. People cannot go into water where Mundagarra lives.
1100 Patricia Leisha gave evidence that Mundagarra is the creator of the land. Ms Leisha’s brother says the “Mundaguddi” lives in a spring at Coomooboolaroo that is never dry. Another Mundagarra place is Mimosa Falls.
1101 Lillian Harrison said that “Mundaguddi” is their creator and lives in deep waterholes and waterways. You avoid going to where the Mundaguddi lives and if someone disturbs the waterhole the Mundaguddi can pull you in.
1102 Samantha Neilson said “Munthagaddi” is the creator of the land, waters, creeks and rivers and lives at Rainbow Falls.
1103 Again, in respect of the west side witnesses, there is substantial variation of understanding the stories and role of Mundagarra.
1104 Mundagarra appears to be a creation story, not peculiar to the claim area, but common to the other language groups of the region. Dr Kenny states that there are some other general mythological narratives and spirit beliefs associated with the wider region in the literature, but details are scarce and often not specific to any places.
1105 In her report, Dr Kenny comments that traditional claims to country are commonly based on the physical and metaphysical knowledge of places. The anthropologists gave oral evidence relevant to that proposition.
1106 In his evidence, Dr de Rijke confirmed that there is no detailed study in the early material that addresses the mythological beliefs of Gaangalu people. Dr de Rijke referred to mythology from the Kimberley where a particular dreaming ancestor started talking another language at a particular location, which forms the boundary between different linguistic areas. He accepted that there was no evidence of that kind in the present case. He explained that where a mythical ancestor might change language, it indicates (at that point) the existence of a boundary and a change from one linguistic group to another.
1107 Dr de Rijke agreed with the following comment by Professor Sutton referring to the way in which a group of Aboriginal people recognised themselves as the holders or owners of a piece of land and the way in which they were recognised by other groups as holders or owners of that land:
In Aboriginal practice, it is typically externalised as the law, which in this particular context refers to the sacred patterns integrating the land areas with languages, totems, dreaming tracks and other defining features of one’s geopolitical landscape, a pattern that was laid down forever at the foundation of the world.
People do not make the law.
1108 Dr Kenny gave evidence of the connection between language and country:
One owns language, and language is embedded in country, and so country owns language. People own language. It – it’s all in one.
1109 In their oral evidence, Dr de Rijke and Dr Kenny agreed that the following evidence of Professor Sutton cited at [599] of Wyman concerning the Garingbal also applied to the Gaangalu:
In a more traditional setting one expects different people to have different traditional stories to tell, as well as some held in common. There will be a pantheon of Ancestral Beings, huge sagas, a pharmacopoeia it would take a whole book to describe, a rich array of designs used in religious contexts, and hundreds of songs whose verses are linked to known and named places in the landscape. In a heavily acculturated or revival situation it is my experience that one comes across the same few stories being recalled or learned about the same few places, the same beliefs in little hairy men or similar goblin-like beings (in this case, the ‘eungies’ and ‘junjuddies’), the same belief in messenger birds, the same beliefs in ghosts (here /guriguri/ or ‘Goori Goori’ etc), and the same few bush medicines (such as the ‘gumby-gumby’ in this case). These will tend to be the small if widely shared remnant of what was once a very rich tapestry.
1110 Dr de Rijke and Dr Kenny also agreed with Professor Sutton’s description of typical founding myths of the different regions of Australia, where a heroic ancestral figure or pair of figures travels across the landscape, allotting land areas to particular groups and giving a language to particular groups occupying particular areas of land. A mythical figure might change language at a particular point, indicating the existence of a boundary.
1111 I accept that at sovereignty, the people in the claim area are likely to have had a body of mythology that included, as Professor Sutton describes it, “a pantheon of Ancestral Beings, huge sagas, a pharmacopoeia it would take a whole book to describe, a rich array of designs used in religious contexts, and hundreds of songs whose verses are linked to known and named places in the landscape”.
1112 In this case, there are only two fragments of early stories, both from Tennant-Kelly’s informants in 1934. One concerns a Dawson River Mundagarra rainbow snake which killed a man, and the other concerns a dangerous “Devil” on an unnamed mountain who would “smash you up with his nulla”. However, these accounts contain little content, and there has been no identification of any other creative or destructive stories.
1113 Many of the Aboriginal witnesses referred in their evidence to Mundagarra as a creative and destructive force, although there is little consistency about what was created and the role of Mundagarra in respect of the Gaangalu people. There was little detail or consistency about matters including where Mundagarra travelled, what places or geographical features were created and where Mundagarra now rests. While a number of witnesses said that Mundagarra created rivers and mountains or other aspects of the claim area, they did not connect Mundagarra with embedding the Gaangalu (apart from, perhaps, Colin Toby) in the claim area. Apart from the concept of Mundagarra as a creative and destructive force, it cannot be established whether their evidence is consistent with traditional Mundagarra mythology.
1114 Dr de Rijke and Dr Kenny accept that Aboriginal mythology involves sacred patterns integrating the land areas with languages, totems, dreaming tracks and other defining features of one’s geopolitical landscape, a pattern that was laid down forever at the foundation of the world. Professor Sutton described typical founding myths of the different regions of Australia, where a heroic ancestral figure or pair of figures travels across the landscape, allotting land areas to particular groups and giving a language to particular groups occupying particular areas of land. They emphasise the connection between the ancestral beings and their embedding of language and the people in the land.
1115 I accept it to be probable that similar myths and beliefs were held by the Gaangalu people at sovereignty, under which they were allotted their land and language by ancestral beings at the foundation of the world. Traditional claims to country were commonly based not only on the physical but also metaphysical knowledge of places. However, apart from inconsistent fragments of Mundagarra, no such stories remain and much of the metaphysical knowledge connecting Gaangalu people to the land has been lost.
1116 A further difficulty for the applicant is whether the claim group as a whole observes traditional law and customs concerning Mundagarra creative mythology. Dr Maclean’s genealogy reveals that there must be several thousand Gaangalu people, but the applicant relied on the evidence of 23 Gaangalu witnesses, generally middle-aged or elderly. Some 10 of these witnesses are from a single descent line, namely from William Toby I. Some of the witnesses who gave evidence had told their children about Mundagarra, but there is inadequate evidence as to whether that creation myth is acknowledged or observed by the younger Gaangalu generations. The available evidence does not enable me to accept that the claim group as a whole acknowledges or observes the fragments of Mundagarra mythology that are left.
1117 A number of the Aboriginal witnesses gave evidence about the spiritual presence of “Old People”, or ancestors, in the landscape. For example, Lynette Blucher said that when old people pass away, they return to country to protect it and look after other Gaangalu people. Dale Toby gave evidence that he talks to country and talks to the ancestors, his father having told him to talk to the country and the spirit of the elders because they would look after him. Margaret Kemp’s evidence was that there are special places where they can sing out and talk to ancestors to tell them that you are there and make sure it is okay, and she can feel the old people there. Steven Kemp said that old people go back to country to die if they can and their spirits stay in the country. When Mr Kemp feels the presence of ancestors he talks to them and calls out to them for protection when he feels an evil presence or when he visits certain places.
1118 The applicant advances the contemporary evidence about the spirits of Gaangalu ancestors in the landscape as reflecting the traditional spiritual connection of the Gaangalu with the land. Dr de Rijke notes that there is little ethnographic information concerning this matter, but points to Tennant-Kelly’s recording in Cherbourg of a belief in “spirit centres” in the land, to which Aboriginal people believed that their spirits returned after death. Tennant-Kelly noted that it was terribly important to people that they should die near one of these centres and old people, many miles from their own country, grieved to get back to their own tribal territory before they died in order to ensure their spirit’s safe return to its home.
1119 Dr de Rijke indicates that the link between a person and his or her spirit centre was also encoded in that person’s “Yamba” name (which Tennant-Kelly noted was fairly general all through the central and western Queensland tribes). That name represented the place a person was born. Tennant-Kelly also referred to the detailed geographic knowledge, personal emotional bonds and sense of sanctity of land and waters communicated by senior Aboriginal people at Cherbourg.
1120 It was agreed between the parties that an aspect of traditional law and custom concerned various funerary practices. It is appropriate to consider the continuity of funerary practices at this stage because they have an association with belief in the importance of dying near a spirit centre to which the person’s spirit returns after death. The traditional funerary practices included burial after the body was carried for a time, being buried facing the sunrise or the sunset depending on moiety and “smoking” by the members of the opposite moiety.
1121 In 1934, Tennant-Kelly noted that “among the remnants of ritual” were painting of one’s face and arms with white clay, ritual wailing, destroying the deceased’s belongings, and sometimes furtively lighting a fire for a ceremonial smoking ritual. Tennant-Kelly observed a “totemic emphasis” during funeral rites, and cutting of the body during mourning was also observed by Tennant-Kelly.
1122 Dr de Rijke states that he attended a funeral in Woorabinda where those present were smoked, and the deceased’s totem (scrub turkey) figured on the funeral booklet. Dr de Rijke noted that Rodney Jarro observed the performance of a deceased’s totem at Woorbabinda in the 1960s. Dr de Rijke notes that members of the claim group also refer to the period immediately after a person of their kin network has passed away as “sorry business”, generally referring to a period of mourning in which common activities such as meetings are cancelled until after the funeral. Dr de Rijke notes the belief that a deceased person’s spirit will return to the country upon death. He considers that these practices and beliefs appear to be substantial continuations of pre-contact law and custom described by Tennant-Kelly. Dr de Rijke expresses the opinion that pre-contact funerary practices have changed, but continue to contain fundamental elements of pre-contact customary practice and belief. These include normative rules around funeral attendance, ceremonial safeguarding against spirits, and the link between country and spiritual self.
1123 A number of the Gaangalu witnesses gave evidence concerning contemporary funerary practices including smoking ceremonies and the importance of burying people or spreading their ashes on country.
1124 There was some evidence that a representative from each Gaangalu family should attend the funeral of a Gaangalu person. There is, however, no evidence pointing to pre-sovereignty attendance practice of that kind.
1125 I accept that contemporary funeral practices contain some elements of traditional customary practice and belief, particularly a belief in burying people on country and smoking ceremonies. However, the evidence does not suggest practices of painting mourners’ faces and arms with white clay (except in Lynette Blucher’s evidence), ritual wailing, destroying the deceased’s belongings or an emphasis on totems. I find that there is continuity of some traditional funerary practices, although in significantly attenuated form.
1126 I accept that evidence of contemporary belief in the presence of Gaangalu ancestors in the landscape reflects traditional beliefs that their spirits would return to the land. However, the evidence does not establish that the contemporary belief about the role of these spirits in, for example, looking after Gaangalu people, is consistent with traditional beliefs. Nor does the evidence establish a belief by the Gaangalu people as a whole that their spirits will return to the land. There is no evidence of any continuing practice of “Yamba” names. I find that the traditional law and custom concerning an embodied relationship between people and their land and waters continues, although in attenuated form.
1127 There is evidence from a number of the Aboriginal witnesses concerning other spiritual figures and stories, including about Djandjaarris, the Tall Man, the Yuinji, the Kadartchi Man, Featherfoot, spirit birds and other spirits. The evidence concerning the nature of these beliefs and the places inhabited by them was not detailed or consistent. Once again, there is a lack of evidence connecting these beliefs with traditional Gaangalu law and custom. For example, while Mount Murchison is asserted to be the site of Clever Men, Tennant-Kelly makes it clear that Kadartchi Men or Clever Men (who were accepted to have magical powers) were real people. Dr de Rijke indicates that they no longer exist in the contemporary society. As seemed to be acknowledged by Robert Toby and Patricia Leisha, these are not traditional stories, but introduced stories after the cessation of real-life figures. Lynette Blucher said she could not be sure whether Tall Men were part of Gaangalu. The evidence concerning the nature and role of Djandjarris was variable. They were not demonstrated to be associated with any creation story or to rights and interests in land, and the evidence does not establish that they were traditional figures. I am unable to be satisfied that the contemporary existence of any of these spiritual figures or stories represents continuity of traditional Gaangalu law or custom. In any event, they seem unrelated to rights and interests in land.
1128 A number of witnesses connected with the east side of the Dawson River gave oral evidence of the, “five pillars that hold up the Gaangalu sky”. These pillars are said to be Mount Scoria, Wandoo Mountain (Mount Ramsay), Piebald Mountain, Mount Morgan and Uncle Toms, and are said to be special or sacred. The first four are in the vicinity of either Biloela or Mount Morgan, while Uncle Toms is a mountain located outside the claim area.
1129 Lynette Blucher’s evidence was that Wandoo Mountain was a men’s site, and there had been a battle there with a tribe which came up from down south. She said Mount Scoria is also known as Dangama Mungar, meaning “Talking Mountain” in Gaangalu, and is a birthing place and women’s site. She said that each of the mountains was a lookout point. The evidence of other east-side witnesses was broadly along the same lines. However, several witnesses referred to six mountains.
1130 The five pillars were not mentioned in any of the written statements. Robert Waterton’s evidence was that he has only heard about the five pillars in about the last year, and his parents and grandparents did not teach or talk about them. Phillip Toby considered Piebald Mountain to be a Mundagarra site, but indicated that Mount Murchison was just a lookout and not culturally significant, and that Uncle Toms is just a marker for the bottom part of the boundary.
1131 There are several difficulties with accepting that the evidence of the five pillars reflects traditional law and custom. First, the absence of any detail concerning why the mountains are sacred, and inconsistencies in Robert Waterton’s evidence that he has only heard about the five pillars in about the last year suggest the belief is of more recent, rather than traditional, origin. Neither of the anthropologists offered any evidence that the five pillars holding up the Gaangalu sky has any consistency with classical Aboriginal anthropology.
1132 A further, insurmountable, difficulty is that Mount Scoria, Wandoo Mountain, Piebald Mountain and Mount Morgan are outside the areas I have found to have been occupied by Gaangalu people at sovereignty, while Uncle Toms is outside the claim area.
1133 In respect of the west side, as I have discussed, some witnesses gave evidence concerning Mundagarra sites. In addition, several witnesses mentioned other significant sites and places. For example, Margaret Kemp said that the Blackdown Tablelands has some old paintings around 5000 to 6000 years old and a men’s area, that one side of Blackwater Creek was where the “old fellas” used to go, and that there are sacred burial caves in an unnamed place. Paul Hegarty’s mother told him that Blackdown Tablelands is a sacred area. In cross examination, he initially said that Blackdown Tablelands is sacred because of the water and mountain but later agreed that it may have been because of Mundagarra creating the waterways through the mountains. Rodney Jarro said that there are special places on country, such as Niagara Falls, Third Gully, Eight Mile, Redbank and Duke White Scrub. Steven Kemp referred to a birthing place near Blackboy Creek.
1134 There was little detail or consistency between the witnesses about which places are sacred and why they are sacred. I am unable to accept that the whole, or even a substantial part of the claim group is aware of or acknowledges these places as places sacred to the Gaangalu.
1135 A number of other sites which were identified as special or sacred, including massacre sites and pastoral holdings or other places where people had lived, are associated with events that occurred post-sovereignty. They cannot be regarded as traditional places of significance.
1136 The witnesses relate a number of individual stories, experiences or beliefs concerning spiritual matters. For example, Patricia Leisha referred to a spirit dog and three little white dogs, but accepted that the story is only special to her family, because it connects to her grandmother who owned three little white dogs. Margaret Kemp talked of her sister seeing a hand coming out of the sand beside a river, noting that this was both an old corroboree site and a massacre site. Lillian Harrison believed the appearance of kangaroos feeding in a clearing was showing her where some of the old people were killed. Paul Hegarty spoke of dingoes helping him when he was a child which he later believed were ancestors. These stories are idiosyncratic, rather than representative of any continuing shared norm stemming from traditional law and custom.
1137 It is probable that knowledge of the mythology held by the Gaangalu clans was substantially depleted through their dispersal following the establishment of pastoral stations in the claim area from about the 1860s and then their movement onto reserves. Tennant-Kelly’s observation in 1934 concerning the reluctance of old people at Cherbourg to pass on their knowledge points to further depletion of such knowledge. Tennant-Kelly’s description of only two fragments of Gaangalu mythology suggest that a great deal of the mythology had already been lost by then.
1138 Although I am satisfied that contemporary belief in Mundagarra mythology can be traced to traditional law and custom, all that is left is a few fragments. The evidence does not establish the applicant’s contention that the Gaangalu acknowledge and observe a rich heritage of traditional mythological stories by which their claimed rights and interests are connected to the claim area. Further, it has not been established that the claim group as a whole acknowledges or observes the Mundagarra mythology that remains.
1139 The remaining aspects of the evidence concerning spiritual connection have not been shown to originate in traditional laws and customs, or have not been demonstrated to represent a shared norm.
Customary use of natural resources
1140 It may be noted that many of the rights and interests claimed by the applicant are concerned with the use of natural resources in the claim area. The claimed rights and interests include rights to construct structures, hunt, fish and gather; take, use, share and exchange natural resources and take and use the water of the area.
1141 Dr de Rijke states that little detail is known about the pre-contact use of natural resources by Gaangalu people. However, there is ethnographic evidence of the use of opossum rugs, grease and ochre for ceremonial purposes, pipeclay and charcoal when in mourning, timber and grasses for buckets, baskets, nets and belts, and stone tomahawks, timber spears, boomerangs and shields. It can be accepted that a variety of plants and animals were used for food, medicine, shelter, utensils, weaponry and ceremonial purposes.
1142 Dr de Rijke describes uses of natural resources by the contemporary Gaangalu as including: bush tucker, such as wallaby, porcupine, goanna, grubs, fish, yams, sugar ants and berries; timber for nulla nulla, fires and smoking; bush medicine, such as gumbi gumbi, bark and traditional oils and fats; ochres for painting; and wallaby and kangaroo skins.
1143 The evidence of the Gaangalu witnesses is consistent with the uses described by Dr de Rijke. Steven Kemp’s evidence is of particular note. Mr Kemp and his father would go on country looking for bush medicine and to hunt, fish and camp. Mr Kemp still regularly hunts kangaroos, emus and goannas and collects other bush foods to cook for the old Gaangalu people. Mr Kemp uses wood to make boomerangs and clap sticks and uses sandalwood for smoking ceremonies. Nulla nullas, used for hunting emu and goannas out of trees, are made from budgeroo tree. Boomerangs are made from wattle, acacia, rosewood and brigalow. Spears are made from lancewood or rosewood. Spears are wrapped with kangaroo sinew from the tail, and blackboy resin is used for gluing the tip in.
1144 Mr Kemp learnt how to make and use bush medicine from his father. He grows gumbi gumbi trees, and they can also be found at Coomooboolaroo, Duaringa, Adder Creek, the Dawson and Bauhinia crossing and Woorabinda. Gumbi Gumbi medicine is boiled and drunk and can be used topically for rashes and dandruff. Mr Kemp adds emu fat, goanna fat, lemon scented gum and other ingredients to help with muscle pain. Other trees and plants that can be used as bush medicine include the quinine peach tree to cure sickness, the soap tree which makes a soap for bathing and the munda vine which is used to grow hair.
1145 The State submits that that not all evidence of hunting, residence and the like are necessarily demonstrative of a connection by traditional law and custom. The State submits that, rather than merely identifying activity, it is critical to identify any relevant norms in the claim group’s evidence in respect of hunting or gathering. That may be accepted.
1146 The State submits that evidence of hunting, camping and working around country was simply part of the life, and the lived history of many claimants, rather than demonstrating a connection with traditional law and custom. I accept that hunting, camping and use of natural resources was simply a part of the way of life and the lived history of many of the people in older generations, but there is no requirement under s 223(1) of the NTA that every relevant custom of the pre-sovereignty society and the succeeding generations must be steeped with spiritual or ritual significance. Some aspects of custom may be more prosaic and functional, yet remain customs. For example, the hunting and consumption of native animals and the use of bush medicines can be regarded as part of the customs of Aboriginal people, having normative quality, even if driven by subsistence and survival. Contemporary practices of hunting and consuming native animals and use of bush medicines can be seen as a continuation of such customs, even though not driven by substance and survival.
1147 Although the use of the land and its natural resources by the Gaangalu witnesses is no longer a matter of subsistence or survival, their evidence concerning their continued use reflects their upbringing and what they were taught by their parents and elders. It also reflects a desire or intention by the Gaangalu witnesses and their families to follow and observe some of the traditions and customs of their forebears.
1148 A number of witnesses, generally in their 60s, gave evidence that they would hunt and gather with their parents or grandparents, but few gave evidence of continuing to hunt and gather or teaching children to do so. Margaret Kemp, Steven Kemp and Perter Mickelo were among the exceptions. It is doubtful whether the practice of hunting and gathering continues among the Gaangalu people as a whole, particularly among the younger generation. However, I am prepared to accept the Gaangalu people as a whole consider they have a right to hunt and gather upon the claim area under their traditional laws and customs.
1149 In my opinion, the contemporary use of natural resources taken from the claim area by Gaangalu people originates from the laws and customs of the pre-sovereignty society. There has certainly been adaptation of methods of hunting and gathering, and knowledge of the uses of some resources has faded. However, I find that the continued use of, and belief in the right to use, natural resources supports the applicant’s contention that the claimed rights and interests are possessed under the traditional laws and customs.
A classificatory kinship system
A form of social organisation encompassing two named moieties and four named sections
1150 It is convenient to deal with the traditional laws and customs involving a classificatory kinship system, a form of social organisation encompassing two named moieties and four named sections.
1151 Dr de Rijke notes that Tennant-Kelly was interested in the structural-functional elements of kinship seen to render a society cohesive, and that kinship system and social organisational features such as moieties, the four section system and associated totemic affiliations and marriage rules were seen to provide a framework for the regulation of social relationships.
1152 Tennant-Kelly’s field notes record that, for example, all of father’s brothers were classified as fathers, and all of mother’s sisters were classified as mothers. An unknown Gaangalu informant indicated to Tennant-Kelly that the marriage rule among Gaangalu means a man should marry his classificatory cross-cousin. Tennant-Kelly observed that the use of two named moieties and four named sections had continued at Cherbourg to some extent. The sections informed marriage rules.
1153 Dr de Rijke notes that Tennant-Kelly’s research concerning marriage practices indicates that Aboriginal people understood the ideal marriage to be between members of certain named sections only, but did not follow the practice. Tennant-Kelly observed that it was a common thing to be told “we married wrong”, and very few seemed to have married “right”, and there was no sense of shame about it, but rather a coy amusement. Accordingly, marriage rules related to sections seem to have largely broken down by 1934.
1154 Dr de Rijke considers that actual relationships and practices between kin have remained distinctively non-European. He points to continuing practices of forms of demand sharing and reciprocity; marriage arrangements explained in terms of “not marrying too close” and regularly including members from surrounding groups; a classificatory kinship system in which cousins are equated with “brothers” and “sisters”, aunts with “mother”, and uncles with “father”; actual uncles and aunts (referred to as fathers and mothers) retain important authority over their nephews and nieces (e.g. in terms of discipline or the provision of shelter and care); and, the use of the kin terms “Uncle” and “Auntie” in the context of social authority.
1155 Dr de Rijke considers that the underlying social relationships between members of the claim group remain informed by aspects of a classificatory kinship system. Kinship relations link Gaangalu descent groups to each other, as well as to other contiguous groups in the region. Dr de Rijke considers that kinship practices, albeit in adapted form, can be regarded as contemporary expressions of traditional laws and customs which continue to inform the conduct of social relationships and duties amongst members of the claimant group.
1156 The Gaangalu witnesses generally gave evidence consistent with the observations of Dr de Rijke. For example, Lynette Blucher was brought up understanding that her family should share their home, food and other things with family and others and that most Gaangalu people she knows have always done the same. Ms Blucher explained that it is common for Gaangalu people to look after nephews, nieces, grandchildren, distant cousins and others for long periods of time, and treat them as their own. Ms Blucher calls her nieces and nephews her “kids”, and calls her cousins, “brother” and “sister”. She states that a Gaangalu person should not marry another Gaangalu person with the same yuri (totem). She says there is a system of authority emphasising the authority of senior people, and showing respect to elders is very important. Apart from Rosemary Hoffman, Dale Toby, Margaret Kemp, Cedric White, Robert Toby, Steven Kemp and Patricia Leisha, the other witnesses did not refer to any rule concerning marrying another Gaangalu person with the same yuri.
1157 Dr de Rijke states that the anthropological literature about Aboriginal Australia allows an inference to be drawn that the pre-contact political system included a system under which decisions were made by senior, older people.
1158 I accept that the contemporary evidence of kinship practices is consistent with adaptation of the Gaangalu classificatory kinship system. The pre-sovereignty system was more finely-grained and nuanced, and included matters such as in-law avoidance and the importance of mother’s brother in sponsoring a youth through initiation, which have been lost. The complex interaction of section, moiety and their place in marriage rules has largely been lost and that which remains is the universal incest taboo on marrying too close. I accept that current practices reflect adaptation of the pre-sovereignty classificatory kinship system although in substantially attenuated form.
1159 In Dr de Rijke’s first report, he observed that features of the kinship system and social organisation, such as moieties, the four section system and associated totemic affiliations in marriage rules, provided a framework for the regulation of social relationships. Dr de Rijke indicated in oral evidence that classificatory kinship is not directly linked to laws and customs pertaining to land.
1160 I consider that the continuation of traditional classificatory kinship practices in attenuated form does not significantly affect the question of continuity of the traditional laws and customs under which the Gaangalu may have their claimed rights and interests in the claim area.
1161 Dr de Rijke accepted, from the literature, that people in the same moiety may be seen as appropriate categories of people to take over vacant estates. Dr de Rijke also states that, as far as he has been able to ascertain, the customary system of social organisation based on two named moieties and four sections no longer operates in any identifiable manner. The system of two named moieties and four sections system accordingly has relationship with rights and interests in land, at least in the context of succession. That loss is inconsistent with any view that there has been succession to the clan estates by the whole of the Gaangalu people.
1162 The traditional system of moieties and sections had a connection connection with totems, as is discussed below.
An understanding of totemism, including an association between totemism and kinship as well as personal totems
1163 Tennant-Kelly noted in 1934 that totemism (or yuris) was the most important and the most living part of the old life of the people at Cherbourg. Dr de Rijke states that the ethnographic record does not indicate whether or how totemism in this region was related to rights and interests in land. However, Dr Kenny does indicate that there was a connection between moieties and therefore totemism and acquisition of secondary interests in land and succession to vacant estates.
1164 Tennant-Kelly’s notes indicate that the two moieties and four sections had a series of associated totems. For the Wuturu moiety, they were big eel (Dhurulu), big leaf lilly (Kumi), scrub turkey, and porcupine. For the Yengaru moiety, they were brigalow (Kapela), grub (Dharbari), prickly shrub (Muguna) and emu. Totems were inherited matrilineally. Dr de Rijke states that right through the area, there appears to have been a taboo on eating one’s own totem.
1165 Dr de Rijke indicates that many of the contemporary claimants continue to assert totemic affiliations with natural species. Some of these, such as the scrub turkey and native bee for the Kemp family, and the owl for the Harrison family, are asserted by claimants to belong to certain descent groups or families in particular. Totems are generally referred to by the claimants today as one’s yuri and the claimants translate this word as one’s “meat”. Dr de Rijke says the word “yuri” for “meat” and totem was also reported in the early ethnography. He indicates that claimants with totems commonly note these should not be eaten or hurt, which appears to conform to the pre-contact normative rule about food taboos described by Tennant-Kelly.
1166 Dr de Rijke indicates that while some claimants assert that totemic affiliations are inherited from one’s mother, which conforms with the early ethnographic records, other claimants do not acknowledge the existence of such a rule and assert that one’s totem may also be derived from one’s father. Dr de Rijke says there may well be claimants who do not have a totem at all.
1167 Dr de Rijke says that, based on the available evidence, he is reluctant to come to a strong conclusion about the continued relevance of totemic affiliations, but there appears to be, at least among a number of claimants, a continued recognition of totemic affiliation in adapted form. Personal naming practices are, to some extent, also related to totemic practices.
1168 Dr de Rijke also notes that amongst some members of the claim group, totemism may link members of descent groups through naming practices or the inheritance of totemic affiliations from one’s predecessors, and may provide a further point of reference in familial connections among the claim group and relationships with surrounding groups through intermarriage. Dr de Rijke considers that while contemporary totemic affiliations do not exhibit the traditional detail as recorded by Tennant-Kelly, disconnected as they are from the moiety and section system that no longer operates, they remain in adapted form an important aspect of personal identity, familial and broader social relationships among at least a segment of the claimant population. This leads him to the conclusion that the fundamental aspect of pre-contact totemism—the linkages it establishes between humans, the natural world and the metaphysical world—appears to have continued to some extent.
1169 In his oral evidence, Dr de Rijke expressed the view that, pre-sovereignty, totemism included relations to particular sites of totemic significance. He indicated that a site where a dreaming ancestor left its essence in a particular estate would then be a particular totemic focal site of the patrician. He inferred that, pre-sovereignty, there were such sites for the Gaangalu.
1170 Dr de Rijke also acknowledges that there is now totemic variation among the Gaangalu, and the inheritance of these totems is no longer strictly matrilineal. He indicates that while there are prohibitions generally acknowledged about eating one’s totem, the prohibitions on marrying one’s totem are somewhat inconsistent. However, he considered that on the whole totemism remains relevant in the lives of Gaangalu people and as a continuing, albeit adapted, cultural tradition.
1171 Dr Kenny said in oral evidence that totemism is, “certainly a system…that has been compromised”.
1172 As the State points out, Tennant-Kelly’s notes contain a number of references to the significance of totems. Although not all were said to specifically apply to the Gaangalu, the Gaangalu can be inferred to have had similar beliefs. These references include a connection with moieties; a guide to the afterlife being of the same totem; people of certain totems not fighting each other; increase rites for a particular species taking place at a specific spot of great sanctity; people having three names with the second and third of them derived from the father’s totem to continue to recognise that totem despite inheritance of their totem from the mother; marriage should also be to the totem of one’s father; totemic symbols in dreams had importance; there was a taboo on eating one’s own totem; one should not kill the totem of another person in their presence; and matrilineal inheritance of a totem supported the role of mother’s brother (having the same totem) in sponsoring a youth through initiation or marriage.
1173 Many of the Gaangalu witnesses gave evidence that their families have totems, although their evidence as to the significance of a totem and how it was acquired was variable. Some descendants of William Toby I gave evidence that there must be a meat totem and a plant totem, and their totems are the carpet snake and the cabbage palm tree (which they also describe as the Gaangalu palm). They say that William Toby I’s descendants cannot marry another carpet snake or cabbage palm tree. The same totems are inherited from either Gaangalu parent. Others only said that their totem is a carpet snake. Others did not mention that they had any totem.
1174 The evidence of people associated with the west side was more varied. For example, Margaret Kemp said her token is the googabinge, the scrub turkey, and the gubba, the native bee. She said that people from her family line cannot marry another person who has the scrub turkey or native bee as their totem: having the same totem makes them very close, like a brother or sister. Desmond Hamilton’s family totem is the scrub turkey: he does not harm them and pays the utmost respect to scrub turkeys because they are his ancestors looking over him and his family. Priscilla Iles’ evidence was that her yuri or “meat” for Gaangalu is the scrub turkey: different areas have different meats and they cannot kill, touch or eat their meat. Some did not mention claim to having any totem.
1175 The only normative contemporary use of totems seems to be as family or personal identifiers. While they may signify marriage rules, since they are inherited both matrilineally and patrilineally, they seem to signal little more than a biological imperative that people from the same family group should not marry. There remains a prohibition on consumption of one’s totem.
1176 Tennant-Kelly described the totems in 1934 as being big eel, big leaf lilly, scrub turkey, porcupine, brigalow, grub, prickly shrub and emu. Of these, only scrub turkey is claimed to be a contemporary Gaangalu totem, while others, such as carpet snake, cabbage palm tree and gubba appear to be of more modern origin.
1177 I do accept that for the claim group as a whole, the use of totems as personal or family signifiers is an adaptation of traditional law and custom, but is very much attenuated. Much of the richness and significance that totems probably had in the pre-sovereignty society has been lost, including in increase rights which were related to land. The contemporary significance of totems as personal or family signifiers does not seem to be connected with rights and interests in land.
Male and female rituals, including initiation ceremonies
Recognition of gender specific and other significant sites
1178 The ethnographic record concerning Gaangalu ritual practices is limited, although Curr wrote in 1897 that ornamental scars were made on the shoulders and thighs, teeth were knocked out, and the septum of the nose was pierced. Curr stated that, “circumcision and the terrible rite are unknown”. There were secret initiation ceremonies for 18 year old males. Performers met in secret on the day a corroboree was to be performed. Dr de Rijke considers it to be probable that Gaangalu women also had elaborate ceremonial lives.
1179 Dr de Rijke observes that claimants do recollect ceremonial activities being conducted at places such as Woorabinda and Cherbourg. These ceremonies did not include initiation ceremonies and appear to have been gender neutral.
1180 The applicant’s submissions accept that male and female rituals, including initiation ceremonies, are no longer observed.
1181 There is no evidence of contemporary ornamental scarring or bodily marking related to Gaangalu identity, and no evidence of initiation ceremonies or gender specific ceremonies. There is no evidence of contemporary performance of traditional corroborees.
1182 Dr de Rijke considers that the Gaangalu were likely to have engaged in increase ceremonies at sovereignty. The Gaangalu witnesses have not suggested that increase ceremonies are performed, or have been performed in their lifetimes.
1183 Tennant-Kelly observed that in Cherbourg in 1934, ceremonial smoke was commonly used during periods of mourning and at funerals as a purifying force. It may be inferred that smoking ceremonies were practised in the pre-contact period and were continued at Cherbourg.
1184 There is substantial evidence from the Gaangalu witnesses of commonly using ceremonial smoke for, inter alia, the introduction and protection of strangers upon entering the country, smoking of funeral attendees, smoking at the house after a person’s death, smoking to protect people after visiting significant sites, smoking to heal people and smoking to keep spirits away from one’s house.
1185 I accept that the Gaangalu must have had a rich ceremonial life at sovereignty. However, the ceremonies, and their content, purposes and nature, has largely been lost. At least two types of traditional ceremonies are likely to have had a connection with rights and interests in land: initiation ceremonies and increase ceremonies. The extent to which other ceremonies may have related to rights and interests in land is unclear.
1186 There is evidence that initiation was associated with the passing down of knowledge. For example, Tennant-Kelly in her 1935 publication indicates that at Cherbourg, old people guarded their religious secrets jealously and were reluctant to pass on knowledge to uninitiated men. Tennant-Kelly characterised the knowledge unable to be passed on to uninitiated men as “tribal lore and totemic secrets”. I infer that such knowledge is likely to have included aspects of lore and secrets concerning land that have now been lost. Further, as will be discussed, it is likely that decision-making power, including in relation to land, was largely based on the ritual standing of senior men, which must have been based, at least in part, upon initiation. Precisely what has been lost through the cessation of initiation is indeterminable.
1187 What remains is a single type of ceremony—smoking ceremonies— used in Cherbourg in 1934 for mourning and funerals, but which are now used more widely. I accept that contemporary performance of smoking ceremonies represents a continuation of traditional law and custom. However, contemporary smoking ceremonies seem to have roles of purification and protection (rather than returning the spirits of the dead to the land), and do not seem to have a connection with rights and interests in land. The continuance of this ceremony adds little weight to the applicant’s case.
1188 Dr de Rijke infers, based on broader anthropological literature, that there were gender specific and other sensitive significant sites at which certain access protocols applied in the claim area at sovereignty. Dr de Rijke states that initiation sites, known as Bora grounds, have not been used for many decades. He states that a number of Bora grounds in the claim area are known, and are generally regarded as male sites, which are seen to have the potential to negatively affect women if they visit such sites. He also refers to sites of significance to contemporary Gaangalu people, such as Mount Scoria and Wandoo Mountain, which I have already considered.
1189 A number of the east side Gaangalu people gave evidence of Bora rings at places including Mount Morgan, Box Flat, Wowan, Biloela and Mount Scoria. These are within areas that were not occupied by the Gaangalu at sovereignty. In respect of the west-side, Steven Kemp gave evidence of a bora ring at Five Mile.
1190 While I accept that contemporary recognition of bora rings as significant or sacred is consistent with traditional laws and customs it is of limited significance. What is of greater significance is that initiation ceremonies have not been performed for many decades.
A system of authority emphasising the role of senior people
1191 Dr de Rijke considers that under the traditional political system, it is likely that decisions were made by older people, particularly revolving around the ritual standing of senior men. I understand such ritual standing to encompass initiation status.
1192 In Dr de Rijke’s opinion, although the means of ensuring compliance no longer exist, such as sorcery or spears, senior people continue to be regarded as elders and are regarded as the ultimate decision-makers in matters that concern, for example, family groups or the claim group as a whole. He considers that a political system that fundamentally emphasises the role of senior people has continued, albeit in adapted form, since sovereignty. This political system has also remained essentially acephalous.
1193 The Gaangalu witnesses gave evidence of a contemporary system of authority emphasising the role of senior people. They said that showing respect to elders is very important. Senior people have authority and elders are consulted first when making decisions, such as bringing native title claims, and Gaangalu people must take into account what the elders say. Older people speak for the mob and the family.
1194 There were differences between witnesses as to the roles of elders in decision-making. For example, Lynette Blucher, Derorah Tull, Margaret Kemp, Desmond Hamilton and Cedric White said that it is the elders who make decisions for the group or family groups. Others had a different view or were less definitive about the role of elders. For example, Patricia Leisha’s evidence was to the effect that elders are consulted and have their views given respectful consideration, while others such as Steven Kemp, Lynette Anderson and Samantha Neilsen did not indicate that decisions are made by elders. The fact that the decision to make the native title determination application was made by a majority vote of the claim group, and the affidavits accompanying the Originating Application indicate that there is no relevant traditional process of decision-making that must be complied with. This indicates that such decisions are no longer made exclusively by elders.
1195 The evidence of the Gaangalu witnesses does not distinguish between male and female elders, and therefore suggests that authority is shared equally, which is a departure from tradition.
1196 I accept that the contemporary Gaangalu have a system of authority emphasising the role of senior people which finds its origins in traditional laws and customs. However, that system has significantly changed and attenuated. In any event, that system of authority does not directly affect the continuation of rights and interests in the claim area under traditional law and custom.
A variety of responsibilities to manage and protect the land and waters
1197 Dr de Rijke has identified the traditional law and custom described as a variety of responsibilities to manage and protect the land and waters as encompassing a responsibility to protect sacred areas. It can be seen as also encompassing a responsibility to more generally protect the land from trespass. Dr de Rijke has not identified other traditional responsibilities to manage and protect the land and waters.
1198 Dr de Rijke states that the perceived contemporary duty to care for the ancestral landscape and sites of cultural significance is illustrated through members of the claim group having been closely involved in the management of visitor access, naming practices, cultural information and signage in national parks in the claim area, employment of two group members as park rangers and a junior ranger program. Dr de Rijke states that, in the context of extensive mining operations on the claim area, claimants spoke about the relationship between the (meta)physical potential of the ancestral landscape and the realities of development.
1199 Dr de Rijke indicates that the members of the claim group have a sense of responsibility for the protection of cultural heritage. This responsibility can be seen as informed by spiritual presence, notions of danger, and a consubstantiality of country and person. He notes that claimants therefore assert that all material objects found during cultural heritage protection activities ought to stay on the claim area. They are removed only where they are under direct threat, but removed to a location as close to the original location as possible.
1200 Dr de Rijke concludes that the claimants’ sense of responsibility to manage and protect the land and waters of the claim area is a normative practice that reflects, in the contemporary context, a continuation of responsibilities that were part of the pre-contact body of laws and customs observed and acknowledged by Gaangalu people.
1201 In his oral evidence, Dr de Rijke observed that the duty to protect places of spiritual importance is shared among Aboriginal people across the country, and is a very common feature of traditional law and custom. While he said that people perceive a need to ensure that use of the land itself is appropriate, is not overexploited, and there is minimal impact on the environment, he did not indicate whether this is a traditional or merely contemporary belief.
1202 A number of the Gaangalu witnesses gave evidence of being taught by forebears that they have a responsibility to “look after” the country. I understand this to refer to looking after the country in both a spiritual and physical sense. This responsibility manifests in people not taking more resources than they need, acknowledging and obtaining permission to take resources from the land of other Gaangalu people, visiting places and leaving the country undisturbed.
1203 In respect of the east-side, there are five shipping containers which act as a temporary keeping place for artefacts removed by Gaangalu people to avoid damage through mining activity. In the course of the trial, I visited one of these sites. As the artefacts are not on the country where they were found, the Gaangalu people want to display them to teach people about Gaangalu culture and country.
1204 It has not been demonstrated that there is any traditional law or custom that requires that artefacts or other items are not removed from, and ought to stay in, the claim area. Such a practice would seem inconsistent with trade with other Aboriginal groups, which Dr de Rijke infers was extensive.
1205 It has not been demonstrated that a belief in management or conservation of resources by not taking more than is needed stems from traditional law and custom. If the principle means that only taking for subsistence or immediate need was permitted, that is inconsistent with trade. If taking resources for trade was permitted, then that seems inconsistent with conservation of resources. The material does not demonstrate a traditional principle of not taking more than is needed.
1206 I accept, however, that there is a relationship between conservation of the land and protecting the spiritual presence of ancestors. I have found that contemporary belief in the presence of Gaangalu in the landscape reflects the traditional beliefs of their ancestors that their spirits would return to the land. I accept that belief in responsibility for physical and spiritual protection of the land is, at least to that extent, a continuation of traditional law and custom.
Intermarriage and trade across the regional society and beyond
1207 I have accepted that it was an aspect of traditional law and custom that marriage could take place both among Gaangalu and between Gaangalu and non-Gaangalu persons, although it may be better described as a custom since a law implies a rule. I accept that marriages continue to take place at least between Gaangalu and non-Gaangalu persons, but do not consider this to affect the question of possession of the claimed rights and interests under traditional law and custom.
1208 I have accepted that it was an aspect of traditional law and custom that trade would take place between Gaangalu and other Aboriginal groups. There was some contemporary evidence of trade given by Steven Kemp, but I am unable to accept that there remains a normative law or custom concerning trade between Gaangalu and non-Gaangalu persons.
Consideration: continuity of acknowledgement and observance of traditional laws and customs
1209 An issue arising under s 223(1)(a) of the NTA is whether the laws and customs acknowledged and observed by the claim group under which they claim to possess their claimed rights and interests in the claim area are properly described as traditional laws and customs. As Mortimer J (as her Honour then was) observed in Narrier at [823], the central question is whether the traditional laws and customs which relate to the acquisition, transmission and exercise of rights and interests in land and waters are recognised and observed by claim group members as a living normative system in substantially the same form that existed at sovereignty, allowing for permissible adaptation.
1210 In considering that central question, loss, change or adaptation of some traditional laws and customs will be more significant than loss, change or adaptation of others. For example, loss of traditional laws concerning social organisation may be less significant than loss of laws directly concerned with possession of rights and interests in land, although it must be kept in mind that there may often be a complex interrelationship between particular aspects of traditional law and custom. The extent of any relevant loss, change or adaptation of traditional laws and customs is also important.
1211 The applicant’s written submissions suggest that it is enough that the claimed rights and interests are “rooted in” traditional laws and customs, in the sense of having some connection with traditional laws and customs, citing Yorta Yorta at [53], [55], [75] and [79]. However, I do not understand Yorta Yorta to indicate that any connection between contemporary and traditional laws and customs, however slight, is enough. Instead, it was made plain, for example at [87], that acknowledgement and observance of the body of traditional laws and customs must have continued substantially uninterrupted since sovereignty.
1212 The applicant submits that traditional laws and customs relating to land ownership, including those directed to group membership, inheritance, inalienability and regulation of access to land and responsibilities for it, continue to be acknowledged and observed.
1213 The State submits that so little of the original system of laws and customs is known that it is impossible to meaningfully assess either what has been lost or the degree to which the modern system in fact reflects the traditional system. The State submits that statement of laws and customs at a general level, where they are largely inferred from anthropology outside the claim area, becomes almost self-fulfilling in that those laws and customs may remain identifiable even in situations of extensive loss or re-creation.
1214 There is force in the State’s submissions. In Yorta Yorta, the plurality observed at [82]:
…demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases,…where…the laws or customs now said to be acknowledged and observed…have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted.
(Emphasis added.)
1215 The identification by the experts of the pre-sovereignty laws and customs of the regional society encompassing the Gaangalu is substantially derived from the anthropology of Aboriginal societies in various parts of Australia, ranging from south east-Queensland, to central Australia, to the Pilbara. The traditional laws and customs have been identified at such a level of generality that they appear applicable to almost any Aboriginal society. There is very little detail of the traditional laws and customs under which the Gaangalu people are asserted to possess the particular rights and interests asserted in the particular area that is the subject of the claim.
1216 The traditional laws and customs of the regional society encompassing the Gaangalu are able to be described only at a level of generality because their details are simply not known. There are few accounts, whether from Aboriginal people or European observers, describing the traditional laws and customs from effective sovereignty to the 1930s. Since the laws and customs of the society at effective sovereignty cannot be identified in any detail, demonstrating that the contemporary society observes substantially the same laws and customs (allowing for permissible adaptation) poses some difficulty for the applicant.
1217 In addition, while the generality with which some of the traditional laws and customs are expressed or labelled may make it possible to say that contemporary observance is of an adapted form of such laws and customs, that tends to mask the reality of very extensive change or loss. As I have said, the extent of any relevant loss, change or adaptation is important to the question of continuity.
1218 I have accepted that the members of the claim group as a whole continue to observe the traditional law or custom of inalienability of land and waters and communal ownership. I have accepted that the contemporary system of inheritance of what may be described as secondary or usufructuary rights and interests from a Gaangalu mother or father is consistent with traditional law and custom. I have accepted that the members of the claim group continue to observe responsibilities under traditional law and custom to protect sacred areas and, more generally, to protect the land against trespass. I have accepted that the claim group continues to engage in customary use of the natural resources of the land. I have also accepted that the claim group has a spiritual connection with the land reflecting beliefs based on traditional law and custom that the spirits of their ancestors would return to the land. These are relevant and significant aspects of continuity of traditional laws and customs.
1219 However, to merely identify the continuity of these aspects of traditional law and custom does not adequately reflect the very substantial loss, change and attenuation that traditional laws and customs have undergone since sovereignty, as I have discussed earlier in these reasons. It is also necessary to consider the evidence of substantial discontinuity of important traditional laws and customs concerning the acquisition, transmission and exercise of rights and interests.
1220 First, traditional laws and customs concerning primary (or “ownership”) rights and inheritance of such rights are no longer substantially observed. Under the pre-sovereignty tenure system, small local clan groups had rights and interests in particular areas of land. There were rules differentiating primary rights held amongst members of the clan groups based on patrilineal or matrilineal descent. The contemporary system is asserted to involve all Gaangalu people collectively holding undifferentiated rights and interests in the whole of the claim area, subject to intramural allocation between people associated with the east side and west side of the Dawson River. In Bodney FC, in a similar context, the Full Court observed at [97] that, “[t]here could not be a more important law or custom for the identification of rights and interests in land than that by which Aboriginal people are related to tracts of land”. I respectfully agree. The laws and customs under which clan groups were connected with particular tracts of land have been substantially lost. Such wholesale change does not merely involve adaptation of traditional laws and customs giving rise to possession of rights and interests, but represents substantial discontinuity and reformulation.
1221 Second, traditional Gaangalu creation mythology is no longer substantially known, acknowledged or observed amongst the claim group. Traditional mythology is likely to have involved sacred patterns integrating the land with languages, totems, dreaming tracks and other defining features of the Gaangalu geopolitical landscape. The creation myths probably involved heroic ancestral figures travelling across the landscape, allotting land areas to Gaangalu people and embedding the Gaangalu language in the land at the foundation of the world. The body of mythology creating the sacred laws by which the Gaangalu people were given rights and interests in the claim area have been substantially lost, and only fragments remain. That presents a very substantial and important discontinuity of traditional laws and customs.
1222 Third, there are a number of other aspects of traditional law and custom related, although perhaps indirectly, to acquisition, transmission and exercise of rights and interests in land and waters that are either no longer observed by contemporary Gaangalu people or are observed in substantially changed form. These include initiation, the moiety and section system, totems and ceremonies such as increase ceremonies. The evidence shows that there must have been significant interrelationship between such aspects of traditional law and custom, but much of the detail of their functions and roles has been lost. However, as I have discussed earlier in these reasons, each of them had some connection with rights and interests in land. The loss or attenuation of these aspects of traditional law and custom should be given some weight.
1223 The evidence does not establish that acknowledgement and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty. Ultimately, I am not satisfied that the claim group possesses the claimed rights and interests under a body of traditional laws and customs acknowledged and observed by them.
Consideration: connection with the land or waters by traditional laws and customs
1224 Section 223(1)(b) of the NTA requires proof that the relevant Aboriginal peoples “by” their traditional laws acknowledged, and traditional customs observed, have a connection with the land or waters claimed.
1225 In Ward, it was held by the plurality at [64] that s 223(1)(b) of the NTA, “requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question”.
1226 In Bodney FC, the Full Court observed at [165] that while it may be “in a given instance that the evidence necessary to establish connection will be the same as that used to identify the claimed rights and interests…s 223(1)(b) serves its own purpose in s 223(1) and is not rendered largely redundant by s 223(1)(a)”.
1227 I have found that I am not satisfied that the claim group continues to acknowledge or observe a body of traditional law and customs. It follows that the claim group does not have a connection with the land or waters “by” their traditional laws and customs.
Consideration: continuity of society
1228 In Yorta Yorta, the majority held at [50] that if a society out of which the body of laws and customs arises ceases to exist as a group that acknowledges those laws and customs, the laws and customs will cease to have continued existence and vitality, and they will no longer support existing rights and interests.
1229 In Wyman at [469], Jagot J observed that it is the continued acknowledgement and observance of pre-sovereignty laws and customs that enables it to be said the relevant society itself has continued.
1230 The applicant’s case was expressly that the native title claim group hold their rights and interests under the traditional laws and customs of a pre-sovereignty society described as, “Gaangalu Region, including people known as Gaangalu, Garingbal and Wadja”.
1231 It must be observed that the applicant expressly disclaimed any case based upon the existence of a society consisting of only Gaangalu people.
1232 The applicant must demonstrate that the Regional Society continues to exist as a group that acknowledges those laws and customs. The applicant made little attempt to demonstrate the continued existence of the Regional Society. It did not, for example, call any Garingbal or Wadja people to give evidence aimed at demonstrating the continuation of a common body of law and custom. The evidence of the Gaangalu witnesses as a whole does not demonstrate any emic view supporting the continued existence of such a society.
1233 Dr de Rijke states in his first report:
213 I have recorded some evidence during research with GNP claimants that points to ongoing interactions between GNP claimants and Aboriginal people who identify as Wadja and people who identify as Garingbal. This evidence useually takes the form of references to particular people or families that are known to be Wadja or Garinbal people, including statements which acknowledge general areas as ‘belonging’ to these groups. This evidence is useful in an examination of the contemporary society because such evidence points to a contemporary sociopolitical field that encompasses Gangulu, Wadja and, Garinbal people.
214. However, I have been unable to undertake sufficient research among Aboriginal people who today identify as Wadja or Garingbal to form opinions about the ways in which traditional laws and customs are acknowledged and observed among the members of those groups today.
215. I have read previous anthropological reports prepared for the Wadja People native title claim. I have also read the Federal Court decision by Justice Jagot in the Wyman case. This case concerns, at least in part, people who identify or identified as Garingbal, and people who identify or identified as Wadja. I have been unable to examine in detail the anthropological reports and lay evidence that informed this decision.
216. Because of these limitations, I am unable to form an opinion that addresses the continuity or otherwise of the Aboriginal society that existed in the region at sovereignty.
(Errors in the original. Footnote removed.)
1234 The only evidence cited by Dr de Rijke that “points to a contemporary sociopolitical field that encompasses Gaangalu, Wadja and Garingbal people” concerns “ongoing interactions” between some Gaangalu, Wadja and Garingbal people. The evidence for such interactions seems to be that some Gaangalu people refer to “particular people or families” and “acknowledge general areas as ‘belonging’ to these groups”. That evidence is quite inadequate to conclude that the Gaangalu, Wadja and Garingbal continue to be united by traditional law and customs. Dr de Rijke has not reached any conclusion that they do form a continuing society.
1235 Dr de Rijke’s report draws attention to Wyman which was concerned in part with the Garingbal (or Karingbal). The State points out that, in that case, Jagot J (at [621]) was not satisfied, “that Karingbal society continued to exist in any sense after sovereignty and certainly not after the forced relocations from this area that occurred during the 1930s in particular”. However, I do not consider it appropriate to apply that (principally) factual conclusion to the present case.
1236 Dr Kenny stated that she concurs, “with the authors of the expert reports that the landholding groups of the application areas belong today to a broader regional society…”. However, Dr de Rijke reached no such conclusion in respect of the Regional Society.
1237 I am not satisfied that the Regional Society contended for by the applicant continues to exist. It is likely to have ceased to exist following the forced expulsion of the Aboriginal people of the region from their traditional lands following the establishment of pastoral stations and, in any event, following their relocation to reserves such as Cherbourg, Woorabinda and Palm Island. Accordingly, the application must fail for that additional reason.
1238 In summary, I have found that:
(1) At sovereignty, Gaangalu people occupied and had rights and interests in the whole of the claim area to the west of the Dawson River. They also had rights and interests in part of the claim area east of the Dawson River, including in Three Rivers, Mount Spencer and Banana areas. Gaangalu people did not occupy and have rights and interests in areas further to the east. Consequently, the present day Gaangalu people do not have rights and interests under traditional laws and customs in areas such as Mount Morgan, Biloela and Thangool.
(2) The applicant has not proved that the Gaangalu possess the claimed rights and interests under traditional laws acknowledged and the traditional customs observed by the Regional Society.
(3) The applicant has not proved that the Gaangalu have a connection with the land or waters by the traditional laws acknowledged and the customs observed by the Regional Society.
(4) The applicant has not proved that the Regional Society continues to exist.
1239 The first separate question asks, “But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?”. That question must be answered, “No”.
1240 The second separate question must be answered, “Not applicable”.
1241 I will order that the parties confer as to the appropriate orders and notify the Court within 28 days as to whether they have reached agreement. At that stage, I will make orders as to any further hearing if necessary.
1242 The Preamble to the NTA acknowledges that Aboriginal and Torres Strait islander people have been progressively dispossessed of their land. The Preamble proclaims that the people of Australia intend to rectify the consequences of past injustices by the special measures contained in the NTA and to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
1243 I have found that, under their traditional laws and customs, the Gaangalu people occupied much of the claim area at sovereignty, but were dispossessed of their land through European settlement and violent dispersal, and then by legislative and executive actions. However, native title does not exist because the Gaangalu have not been able to prove that their native title rights and interests continue to be possessed under traditional laws and customs they acknowledge and observe. It is ironic that the NTA states an intention to rectify the consequences of past injustices, yet prohibits the past injustices that resulted in loss of traditional laws and customs from being taken into account in assessing the question of continuity of traditional laws and customs.
1244 The outcome of the proceeding must leave the Gaangalu people with a sense of emptiness and loss, particularly after having invested so much of their sense of identity, their experiences and their knowledge in an arduous and emotionally difficult legal process.
1245 I would have, if it were permissible to do so, been prepared to make a declaration to the effect that at the time of sovereignty, the Gaangalu people occupied much of the claim area under their traditional laws and customs.
1246 In the thirty years since the enactment of the NTA, it has become apparent that claimants are seeking not only recognition of their own rights and interests, but recognition that their ancestors lived and died on their land since long before colonisation. Such recognition is, in my respectful opinion, important.
1247 The conferral of power in the Court to make a declaration recognising the occupation of the ancestors of the claim group under traditional laws and customs would go some way towards achieving the NTA’s goal of rectifying the consequences of past injustices. I respectfully recommend that the Court be granted such a power.
1248 I direct that the National Judicial Registrar Native Title draw this recommendation to the attention of the Attorney-General of the Commonwealth of Australia.
I certify that the preceding one thousand two hundred and forty-eight (1248) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. |
Associate:
QUD 33 of 2019 | |
COMMONWEALTH OF AUSTRALIA | |
Fifth Respondent: | ROCKHAMPTON REGIONAL COUNCIL |
Sixth Respondent: | WOORABINDA ABORIGINAL SHIRE COUNCIL |
Seventh Respondent: | ERGON ENERGY CORPORATION LIMITED |
Eighth Respondent: | SUNWATER LIMITED |
Ninth Respondent: | AMPLITEL PTY LTD |
Tenth Respondent: | TELSTRA CORPORATION LIMITED ACN 33 051 775 556 |
Eleventh Respondent: | ANGLO COAL (CALLIDE) NO 2 PTY LTD |
Twelfth Respondent: | ANGLO COAL (CALLIDE) PTY LTD |
Thirteenth Respondent: | ANGLO COAL (DAWSON SOUTH) PTY LTD |
Fourteenth Respondent: | ANGLO COAL (DAWSON) LIMITED |
Fifteenth Respondent: | ANGLO COAL (FOXLEIGH) PTY LTD |
Sixteenth Respondent: | ANGLO COAL (GERMAN CREEK) PTY LTD |
Seventeenth Respondent: | AURIZON NETWORK PTY LTD ACN 132 181 116 |
Eighteenth Respondent: | AURIZON OPERATIONS LIMITED (ACN 124 649 967) |
Nineteenth Respondent: | AURIZON PROPERTY PTY LTD (ACN 145 991 724) |
Twentieth Respondent: | AUSTRALIA PACIFIC LNG GLADSTONE PIPELINE PTY LIMITED |
Twenty-First Respondent: | AUSTRALIA PACIFIC LNG PTY LIMITED ABN 68 001 646 331 |
Twenty-Second Respondent: | BRONCO ENERGY PTY LIMITED ABN 70 121 979 664 |
Twenty-Third Respondent: | CAML RESOURCES PTY LTD |
Twenty-Fourth Respondent: | COOK RESOURCE MINING PTY LTD |
Twenty-Fifth Respondent: | ENEX TOGARA PTY LIMITED |
Twenty-Sixth Respondent: | GWM RESOURCES NL |
Twenty-Seventh Respondent: | HARCOURT (QUEENSLAND) LLC |
Twenty-Eighth Respondent: | HARCOURT PETROLEUM NL |
Twenty-Ninth Respondent: | JEMENA QUEENSLAND GAS PIPELINE (1) PTY LTD |
Thirtieth Respondent: | JEMENA QUEENSLAND GAS PIPELINE (2) PTY LTD |
Thirty-First Respondent: | KGLNG E&P II PTY LTD |
Thirty-Second Respondent: | KGLNG LIQUEFACTION PTY LTD |
Thirty-Third Respondent: | MATILDA COAL PTY LIMITED |
Thirty-Fourth Respondent: | MITSUI MOURA INVESTMENT PTY LTD |
Thirty-Fifth Respondent: | NIPPON STEEL & SUMITOMO METAL AUSTRALIA PTY LTD |
Thirty-Sixth Respondent: | NORTON GOLD FIELDS LIMITED |
Thirty-Seventh Respondent: | OCEANIC COAL AUSTRALIA LIMITED |
Thirty-Eighth Respondent: | PAPL (DOWNSTREAM) PTY LIMITED |
Thirty-Ninth Respondent: | PAPL (UPSTREAM II) PTY LTD |
Fortieth Respondent: | SANTOS GLNG PTY LTD |
Forty-First Respondent: | SANTOS QNT PTY ABN 33 083 077 196 |
Forty-Second Respondent: | TOTAL E&P AUSTRALIA III |
Forty-Third Respondent: | TOTAL GLNG AUSTRALIA |
Forty-Fourth Respondent: | VALE BELVEDERE (BC) PTY LTD |
Forty-Fifth Respondent: | VALE BELVEDERE PTY LTD |
Forty-Sixth Respondent: | WESTSIDE ATP 769P PTY LTD |
Forty-Seventh Respondent: | WESTSIDE CSG A PTY LTD |
Forty-Eighth Respondent: | WESTSIDE CSG D PTY LTD |
Forty-Ninth Respondent: | JAMES CHARLES WISE |
Fiftieth Respondent: | HAZEL LAUREL ANDERSON |
Fifty-First Respondent: | OWEN WILFRED ANDERSON |
Fifty-Second Respondent: | DEBORAH LEIGH AUSTIN |
Fifty-Third Respondent: | MICHAEL JAMES AUSTIN |
Fifty-Fourth Respondent: | KEVIN WILLIAM BARTON |
Fifty-Fifth Respondent: | THOMAS JOHN BEHAN |
Fifty-Sixth Respondent: | ALAN JEFFREY DAVEY |
Fifty-Seventh Respondent: | CAROLE ANN DAVEY |
Fifty-Eighth Respondent: | ANNE MARY DUNNE |
Fifty-Ninth Respondent: | BARRY STUART HOARE |
Sixtieth Respondent: | CLAIRE JENNIE HOARE |
Sixty-First Respondent: | ANTHONY JOHN JONES |
Sixty-Second Respondent: | DAWN PATRICIA JONES |
Sixty-Third Respondent: | BRENDAN GERRARD MCAULIFFE |
Sixty-Fourth Respondent: | DEBORAH FAYE MCAULIFFE |
Sixty-Fifth Respondent: | ANDREW EDWARD MCCAMLEY |
Sixty-Sixth Respondent: | DIANA MCCAMLEY |
Sixty-Seventh Respondent: | SCOTT JEFFREY MCCAMLEY |
Sixty-Eighty Respondent: | ANDREW REA |
Sixty-Ninth Respondent: | ROBERT MATTHEW REIMER |
Seventieth Respondent: | JUNE ELLEN ROSS |
Seventy-First Respondent: | DARRYL RONNAN SUTTLE |
Seventy-Second Respondent: | SHELLYMAREE SUTTLE |
Seventy-Third Respondent: | LISA J TYNAN |
Seventy-Fourth Respondent: | WOORABINDA PASTORAL COMPANY |
