FEDERAL COURT OF AUSTRALIA

Malone on behalf of the Western Kangoulu People v State of Queensland (No 6) [2025] FCA 363

ORDERS

THE COURT ORDERS THAT:

1.    The separate questions that, on 6 December 2017, the Court ordered to be determined separately from any other questions in the proceeding, be answered as follows:

(a)    But for any question of extinguishment of native title, native title exists in the land and waters of the claim area.

(b)    The persons holding the common or group rights comprising the native title are the biological or adoptive descendants of one or more of the following people:

(i)    Polly aka Polly Brown aka Polly McAvoy;

(ii)    John 'Jack' Bradley;

(iii)    Hanny of Emerald;

(iv)    Nannie, mother of Nelly Roberts; and

(v)    Annie/Nanny Duggan and Ned Duggan,

who identify as Western Kangoulu People and who are recognised as such by the Western Kangoulu People.

(c)    The nature and extent of the native title rights and interests are the following non-exclusive rights and interests in the claim area:

(i)    the right to access, be present on, move about on, and travel over the claim area;

(ii)    the right to camp on the claim area, and for that purpose, erect temporary shelters on the claim area;

(iii)    the right to take natural resources from the land and waters of the claim area for personal, domestic and non-commercial communal purposes;

(iv)    the right to take the Water of the claim area for personal, domestic and non-commercial communal purposes;

(v)    the right to maintain places of importance and areas of significance to the Western Kangoulu People under their adapted laws and customs, and protect those places and areas, from physical harm;

(vi)    the right to teach Western Kangoulu People members the physical and spiritual attributes of the claim area;

(vii)    the right to bury Western Kangoulu People members within the claim area;

(viii)    the right to assemble and conduct ceremonies and other cultural activities on the claim area; and

(ix)    the right to light fires on the claim area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

2.    In these orders, the following words have the following meanings:

(a)    Animal means any member of the animal kingdom (other than human) whether alive or dead;

(b)    claim area means the area of land and waters described in Schedules B and C of the amended native title determination application filed by the Applicant on 15 August 2017;

(c)    natural resources means:

(i)    any Animals and Plants found on or in the lands and waters of the claim area; and

(ii)    any clays, soil, sand, gravel or rock found on or below the surface of the claim area,

that have traditionally been taken by the Western Kangoulu People and their ancestors, but does not include:

A.    Animals that are the private personal property of any person;

B.    crops that are the private personal property of another; and

C.    minerals as defined in the Mineral Resources Act 1989 (Qld);

D.    petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

(d)    Plant means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen;

(e)    Water means:

(i)    water that flows, whether permanently or intermittently, within a river, creek or stream;

(ii)    any natural collection of water, whether permanent or intermittent; or

(iii)    water from an underground water source; and

(f)    Western Kangoulu People has the meaning given in order 1(b).

3.    The proceedings be referred to a Judicial Registrar of the Court for further mediation on the residual issues for determination.

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

REASONS FOR JUDGMENT

O’BRYAN J:

A.    INTRODUCTION

The application

1    The applicant seeks a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (Native Title Act) in respect of an area of land surrounding the township of Emerald in the western part of the Central Highlands in Queensland. The application identifies the named applicants as Jonathon Malone, Hedley Henningsen, Cynthia Broome and Karen Broome. The claim is made on behalf of the Western Kangoulu people and is known as the Western Kangoulu native title claim. The Western Kangoulu native title application was originally filed on 9 May 2013 and given the file number QUD 229 of 2013. The most recent form of the application was filed on 15 August 2017. The proceeding was given the new file number QUD 17 of 2019 on 10 January 2019.

2    The claim area is depicted in the map attached to these reasons as Annexure A. The applicant’s anthropological expert, Dr Richard Martin, provided the following description of the claim area which is uncontroversial:

The claim area is divided along the east-west axis by a main road and railway line connecting the coast at Rockhampton with other inland centres to the west. The town of Emerald, with a population of about 15,000, sits on this axis in the eastern part of the claim area. It is by far the largest population centre in the claim area.

Other towns and localities in the claim area include:

•    Capella

•    Sapphire

•    Rubyvale

•    Bogantungan

•    Gordonstone

The Nogoa River is the principal waterway on the claim area. Its headwaters are in the Dividing Range to the south of the claim area. It flows into the claim area in a north-easterly direction, passing through Emerald and exiting the claim on its eastern boundary where it joins with the Comet River to form the Mackenzie River.

The western extent of the claim area is marked by the Drummond Ranges, which is the source of a number of creeks that run west to east through the claim area. All the creeks traversing the claim area eventually flow into the Nogoa River. In terms of watersheds, the claim area is the westernmost extent of the Fitzroy Basin, which is a large drainage area that sees its waters flowing into the ocean through the Fitzroy River.

The natural flow of the Nogoa River was substantially altered in the early 1970s through the construction of Fairbairn Dam just to the south of Emerald. The artificially expanded Lake Maraboon has since allowed irrigation farming in this area of highly variable rainfall.

3    The native title claim group is described in Schedule A to the application as follows:

The group of persons claiming to hold the common or group rights comprising the native title is the Western Kangoulu People.

A person is a Western Kangoulu person if and only if the other Western Kangoulu People recognise that he or she is biologically descended from a person who they recognise as a Western Kangoulu ancestor, including the following deceased persons:

•    Polly aka Polly Brown aka Polly McAvoy;

•    John ‘Jack’ Bradley;

•    Hanny of Emerald;

•    Nannie, mother of Nelly Roberts; and

•    Annie/Nanny Duggan and Ned Duggan.

4    The applicant revised its description of the claim group in the course of the hearing, although not in any fundamental way. The identification of apical ancestors has remained consistent, and inclusion through cognatic descent has remained central. The applicant’s further amended statement of facts and matters dated 15 September 2022, which was filed during the trial, redefined the claim group as:

the descendants of the apical ancestors who identify as Western Kangoulu People and who are recognised as such by the Western Kangoulu People.

where the word “descendants” was defined to mean:

those persons who are biologically descended from, or have been adopted by, Western Kangoulu people.

5    This revised description of the native title claim group introduces the following additional elements:

(a)    the expansion of descent to include adoption;

(b)    a requirement for self-identification as Western Kangoulu; and

(c)    a requirement of recognition by other Western Kangoulu people as someone who is a Western Kangoulu person (which may or may not differ from the description in the application).

6    The application describes the Aboriginal people who were associated with the land and waters of the claim area at the time of the assertion of British sovereignty as being part of a broader regional society. The application states:

5.     At the time the crown acquired legal sovereignty over the Application Area, there was a body of Aboriginal people who were associated with the land and waters of the Application Area.

6.     The Aboriginal people who were associated with the land and waters of the Application Area were part of a broader regional society, but were a localised constituent part of this society confining their primary territorial interests to the lands and waters of the Application Area. The contemporary members of the claim group have adopted the name “Western Kangoulu” to explicitly distinguish their localised interests from those of their regional neighbours to whom they have close social and cultural ties dating from the pre-sovereignty period.

7.     The areas surrounding Western Kangoulu country belonged to groups who have or were identified as: the Jagalingu, Wangan, Karingbal, Kanolu, Wadja and Gangalu amongst others. Together these groups and the Western Kangoulu formed an interconnected cluster of distinct groups who interacted for cultural and social purposes, and shared common spiritual beliefs, religious institutions, social organisation and classificatory kinship systems, and common laws and customs. Together, these groups form what may be termed a regional society situated within the cultural bloc often referred to as the Maric cultural bloc by linguists and anthropologists so named for the common word for human (“Mari”) shared throughout much of this bloc.

7    A description of the native title rights and interests claimed in relation to the claim area is set out at Schedule E to the application, as follows:

The Western Kangoulu People claim the rights to:

(a)    access, be present on, move about on and travel over the application area;

(b)    camp on the application area and, for that purpose, erect temporary shelters on the application area;

(c)     take (including by hunting and gathering) and use traditional natural resources from the application area for personal, domestic and non-commercial communal purposes;

(d)     to assemble and conduct religious and spiritual activities and ceremonies on the application area;

(e)     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, by lawful means, from physical harm;

(f)     teach on the application area the physical and spiritual attributes of the application area;

(g)     light fires on the application area for traditional purposes and in accordance with traditional law and custom;

(h)    be buried on the application area in accordance with traditional law and custom;

(i)     hunt, fish, travel in or on, and gather from, the water for personal, domestic and non-commercial communal purposes; and

(j)     take and use the water for personal, domestic and non-commercial communal purposes.

8    The claim area is not overlapped by any other native title claim and there are no Aboriginal respondent parties to the application.

Separate questions

9    On 6 December 2017, the Court made orders under r 30.01 of the Federal Court Rules 2011 (Cth) that the following questions (the Separate Questions) be determined separately from any other questions in the proceeding:

1.    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?

2.     In relation to that part of the claim area where the answer to (a) above is in the affirmative:

(a)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(b)    What is the nature and extent of the native title rights and interests?

10    Thus, issues of extinguishment and the nature and extent of other interests in the claim area (including questions arising under subs 225(c), (d) and (e) of the Native Title Act) are to be determined after the determination of the Separate Questions.

11    At the same time, orders were made to progress the matter to a hearing of the Separate Questions including:

(a)    orders requiring any respondent, other than the State, that wished to participate in the hearing of the Separate Questions to nominate themselves;

(b)    orders requiring the service of pleadings in respect of the Separate Questions; and

(c)    orders requiring the filing of lay and expert evidence for the purposes of the hearing.

12    While there are almost 100 respondent parties to the proceeding, only the State elected to participate in the hearing of the Separate Questions.

13    These reasons answer the Separate Questions.

Orthography

14    The applicant’s anthropological expert, Dr Martin, observed that, over the years, the name “Ganggalu” has appeared in the ethnographic and historical record with a variety of spellings to refer to an Aboriginal group. While most of these names vary somewhat from the modern spelling of the word Ganggalu, Dr Martin expressed the opinion that the different names can be seen as antecedents for the current Ganggalu people, which include the Western Kangoulu people.

15    Dr Martin’s preferred spelling of the group name is Ganggalu. Dr Martin explained that he has included the phoneme ‘ng’ (Ganggalu, as in the English sing) as well as the dorso-velar consonant ‘g’ (i.e. Ganggalu) to reflect the way in which contemporary claimants tend to pronounce this word, as Ga/ng/g/alu. Dr Martin observed that the word could alternatively be spelt Gangkalu or Kangkalu, with the letters ‘g’ and ‘k’ identifying the same sound.

16    Dr Martin noted that the witnesses in the proceeding used a variety of spellings to describe the Ganggalu people, including the spelling Kangoulu with which the native title claim was registered. When making reference to these statements, and also in making reference to the application for the recognition of native title, Dr Martin used the spelling adopted by those who made the application, i.e. Western Kangoulu.

17    In contrast, when referring to the evidence given by a witness, these reasons adopt the spelling used by the witness; when referring to the native title claim more generally, these reasons adopt the spelling with which the application was made, Western Kangoulu; when referring more generally to the tribal group from whom the GNP claim group and Western Kangoulu claim group are descended, these reasons adopt Dr Martin’s preferred spelling, Ganggalu.

Procedural history

18    The determination of the Separate Questions has a lengthy procedural history which has caused delay in the publication of these reasons. An understanding of the procedural history is necessary for a full understanding of these reasons. Accordingly, it is addressed at the outset.

The “Ganggalu cluster” native title claims

19    The preparation of expert evidence for the Western Kangoulu claim occurred in parallel with the preparation of expert evidence in, and conferral with respect to, a number of related native title applications made over areas that were close to, but did not overlap, the area of the Western Kangoulu claim. The related native title claims were:

(a)    the Gaangalu Nation People native title claim (QUD 33 of 2019, referred to herein as the GNP claim);

(b)    the Wadja native title claim (QUD 28 of 2019, referred to herein as the Wadja claim); and

(c)    the Wulli Wulli People #3 (Part A) claim (QUD 619 of 2017, referred to herein as the Wulli Wulli 3A claim).

20    Those claims and the Western Kangoulu claim have been collectively described as the “Ganggalu cluster” claims (or with the alternative spelling “Gaangalu cluster”, or the abbreviated “GNP cluster”). Part of the eastern boundary of the Western Kangoulu claim area abuts the western boundary of the GNP claim area and part of the southern boundary of the GNP claim area abuts the northern boundary of the Wadja claim area and the northern boundary of the Wulli Wulli 3A claim area.

21    The applicants in each of the Ganggalu cluster claims retained different anthropologists as expert witnesses:

(a)    Dr de Rijke was retained by the applicant in the GNP claim and prepared a number of expert reports in respect of that claim including an application report in 2012 and a connection report in 2014;

(b)    Mr McCaul was retained by the applicant in the Wadja claim and prepared an expert report in respect of that claim in 2013;

(c)    Mr McCaul was also previously retained by the applicant in the Western Kangoulu claim and prepared an expert report in respect of that claim in 2015;

(d)    Dr Martin and Dr Gorring were subsequently retained by the applicant in the Western Kangoulu claim in place of Mr McCaul and prepared an expert report in respect of that claim dated 13 September 2018; and

(e)    Dr Powell was retained by the applicant in the Wulli Wulli 3A claim and prepared an expert report in respect of that claim dated 13 September 2018.

22    In 2018, the applicants in the Western Kangoulu, GNP and Wadja claims commissioned Dr Martin, Dr Gorring, Dr de Rijke and Mr McCaul to produce a joint statement of their respective opinions on the nature and extent of the relevant society or societies in relation to the GNP claim, the Wadja claim and the Western Kangoulu claim, and how the society or societies may be defined, considering:

(a)    its constituent groups and geographical extent;

(b)    the traditional laws and observed customs which underpinned the relevant society or societies, including with respect to land tenure;

(c)    whether some or all of the native title claim groups described in the GNP claim, the Wadja claim and the Western Kangoulu claim were part of the same society, or separate societies with social and cultural links arising from their regional proximity; and

(d)    the continuing functioning and status of the constituent groups as a society or societies since the acquisition of British sovereignty.

23    The joint statement prepared by Dr Martin, Dr Gorring, Dr de Rijke and Mr McCaul in response is dated 21 May 2018.

24    Subsequently, the applicants in the Western Kangoulu and GNP claims commissioned Dr de Rijke, Dr Martin and Dr Gorring to produce a joint statement concerning:

(a)    the evidence/ethnography and historic record regarding the apical ancestors in common to the GNP claim and the Western Kangoulu claim and their descendants including any contemporary assertions of rights in the claim area of the GNP claim;

(b)    whether this evidence provides support for the proposition that the descendants of those ancestors today hold traditional rights and interests in the GNP claim area;

(c)    to the extent that the proposition above is supported, the strength of this support, and the nature and geographic extent of such rights; and

(d)    whether any omission of the common apicals from the claim group description of the GNP claim would be contrary to the evidence, including consideration of the society for the GNP claim.

25    The joint statement prepared by Dr Martin, Dr Gorring and Dr de Rijke in response is dated 31 May 2018.

Pleadings

26    Following a dispute that arose between the parties regarding the form of pleadings (details of which are set out in Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 (Malone No 1)), on 30 March 2020 orders were made providing for a different means of defining the issues in dispute between the parties. Pursuant to those orders, the applicant was required to prepare a statement of facts and matters which it sought the State to admit, and the State was required to prepare a responsive document. These documents were to supersede all pleadings filed in relation to the Separate Questions.

27    In accordance with those orders, on 17 April 2020 the applicant filed a statement of facts and matters. The State filed its response on 8 May 2020. The applicant subsequently filed an amended statement of facts and matters on 10 August 2022 and the State filed an amended response on 25 August 2022. On 15 September 2022, toward the end of the trial of the Separate Questions, the applicant filed a further amended statement of facts and matters.

28    As discussed further below, on 6 March 2025 leave was given to the applicant to tender a statement of agreed facts executed by the applicant and the State of Queensland on 19 February 2025 and to file and serve a (awkwardly named) further further amended statement of facts and matters dated 20 February 2025.

Expert evidence and subsequent conferral and conciliation

29    Under timetabling orders made by the Court and the supervision of a Registrar of the Court, the applicant and the State prepared expert evidence in respect of the Separate Questions and the experts participated in a process of conferral. As noted above, this process occurred in parallel with the preparation of expert evidence in, and conferral with respect to, the Ganggalu cluster native title claims. For present purposes, it is sufficient to note that:

(a)    on 14 September 2018, the applicant filed an anthropological report co-authored by Dr Richard Martin and Dr Dee Gorring and dated 13 September 2018 and a genealogical report of Dr Hilda Maclean also dated 13 September 2018; and

(b)    on 9 November 2018, the State filed an anthropological report of Dr Anna Kenny.

30    On 21 and 22 February 2019, conclaves were held between the expert anthropologists retained by the applicant in this proceeding, by applicants in the other Ganggalu cluster claims, and by the State in each of those proceedings. Those conclaves resulted in two joint expert reports directed to the Separate Questions. In those joint reports, agreement was expressed by the experts appointed by the applicant and by the State (Dr Kenny) that the applicant holds native title in the Western Kangoulu claim area. Notwithstanding that agreement, the State informed the applicant that: it did not accept the conclusions expressed by the experts in the joint reports; it was not satisfied that there was a credible basis for the native title application; and, therefore, it was unwilling to negotiate a consent determination under s 87 of the Native Title Act. In those circumstances, the State elected not to call Dr Kenny as a witness in the trial of the Separate Questions.

31    By an interlocutory application filed on 22 May 2020, the applicant sought an order striking out the State’s response to the applicant’s statement of facts and matters which would have had the effect of summarily removing the State’s opposition to the Separate Questions (in circumstances where the State was the only party actively participating in the determination of the Separate Questions and, therefore, the only contradictor). For the reasons set out in Malone No 1, I did not accept the applicant’s contentions and ultimately dismissed the interlocutory application. An application for leave to appeal against that decision was refused by a majority of the Full Court: Malone on behalf of the Western Kangoulu People v State of Queensland (2021) 287 FCR 240 (Malone FC) at [242] per White and Stewart JJ (Rangiah J would have granted leave but dismissed the appeal).

32    On 1 October 2020, the Court made orders requiring the parties to take steps with the aim of facilitating conciliation of the native title claim between the applicant and the State. The reasons for those orders are discussed in Malone on behalf of the Western Kangoulu People v State of Queensland (No 2) [2020] FCA 1414. Unfortunately, the conciliation failed to bring about agreement between the applicant and the State with respect to the Separate Questions at that time.

Filing of supplementary expert evidence for trial

33    In preparation for the trial of the Separate Questions, the applicant filed supplementary expert evidence. As noted above, Dr Martin originally prepared a joint anthropological report with Dr Gorring dated 14 September 2018. However, Dr Gorring was not available to give evidence at the hearing. Dr Martin prepared a supplementary report dated 20 August 2021 and also prepared a revised version of the report originally co-authored with Dr Gorring which is dated 18 March 2022. As discussed further below, the applicant also sought to tender at the hearing a range of other expert material, which is the subject of evidentiary rulings made in Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827 (Malone No 3). Dr Maclean also prepared two further genealogical reports on specific issues.

Trial of the Separate Questions

34    At the trial of the Separate Questions, the State adduced no evidence. It argued, however, that the evidence adduced by the applicant at the hearing was not such as would persuade the Court that a determination of native title should be made.

35    The trial of the Separate Questions occurred over the course of 10 hearing days. Between 30 August 2022 and 7 September 2022, the Court heard evidence in Emerald and other locations within the claim area from lay witnesses called by the applicant. On 15 and 16 September 2022, the Court heard expert evidence from Dr Martin and received the reports from Dr Maclean (who was not required for cross-examination). On 24 November 2022, the Court heard closing submissions. At the conclusion of the hearing, I reserved judgment.

Post-trial mediation

36    On 11 August 2023, the Court received an email communication from the solicitors for the State informing the Court that the applicant and the State had met on a without prejudice and confidential basis to discuss whether an agreement to settle the proceeding was possible in advance of the Court’s decision on the Separate Questions. The parties requested time to continue discussions and the relisting of the matter to update the Court at a later date.

37    On 6 October 2023, the solicitors for the State advised the Court by email that the parties were continuing to confer and requested further time for those discussions. As a result, a case management hearing was listed for 8 December 2023.

38    At the case management hearing on 8 December 2023, the applicant informed the Court that the applicant and the State had discussed the principles upon which a possible settlement might occur, but that it would be necessary for the applicant to seek authorisation from the claim group in order to determine whether it had authority to proceed. The applicant also informed the Court that, if the applicant was given authority to proceed on the basis of the principles that had been discussed with the State, it might take the parties a further 12 months to negotiate the agreement as it would involve the National Native Title Tribunal processes. The applicant requested that the Court withhold delivering judgment on the Separate Questions in order for those processes to continue. The State informed the Court that it supported the applicant’s request. At the case management hearing, I informed the parties that the Court would act in accordance with their request.

39    On 27 February 2024, the Court received an email communication from the solicitor for the applicant informing the Court that the negotiations between the applicant and the State had concluded without a settlement being reached. At the time of receiving this email, I was scheduled to take a period of extended leave from the Court. In those circumstances, I convened a further case management hearing on 23 March 2024 to ask the parties whether they would be willing to engage in further mediation before a Registrar of the Court whilst I was on leave. The applicant informed the Court that it was prepared to engage in mediation, and the State informed the Court that it was not resistant to engaging in mediation. In the circumstances, I made orders pursuant to s 86B(5) of the Native Title Act referring the proceeding to mediation before a Judicial Registrar of the Court, for the mediation to be conducted by 31 May 2024 and for the mediator to report to the court whether the mediation had resulted in a settlement of the proceeding or had not resulted in a settlement of the proceeding within three days after mediation had been completed. Given the circumstance that the Court had reserved judgment on the Separate Questions, I also made an order that the mediator was not to appear before the Court in relation to the proceeding or provide any report to the Court in relation to the proceeding other than as contemplated by the order.

40    On 24 May 2024, the applicant and the State reported to the Court that they wished to continue the mediation and an order extending the mediation was made by the Court on 29 May 2024.

41    On 30 August 2024, the applicant and the State reported to the Court that they wished to continue the mediation and a further order extending the mediation was made by the Court on 3 September 2024.

42    On 23 September 2024, the applicant and the State reported to the Court that they wished to seek orders to:

(a)    have the matter remain in mediation;

(b)    give leave to the applicant to file a further supplementary report of Dr Martin;

(c)    give leave to the applicant to file a statement of agreed facts that would replace earlier pleadings in respect of the Separate Questions; and

(d)    have the matter listed for a further case management hearing on a date no earlier than 6 December 2024.

43    In response to that report, a case management hearing was listed for 10 October 2024 at which the proposed orders were discussed. At the case management hearing, the applicant and the State informed the Court that they contemplated being in a position jointly to seek leave to re-open the hearing of the Separate Questions to adduce a further supplementary report of Dr Martin and to tender a statement of agreed facts that would replace earlier pleadings in respect of the Separate Questions, and which would either eliminate or substantially narrow the issues in dispute between them. No formal orders were made at that case management hearing, but the Court requested the parties to file any such application by 6 December 2024.

Joinder application

44    On 28 November 2024, Michael Paul Huet filed an interlocutory application seeking an order that he be joined as a respondent party to the proceedings pursuant to ss 84(5) and 84(5A) of the Native Title Act. The application was supported by an affidavit made by Mr Huet on 3 December 2024 and an affidavit made by Raymond Alfred Martin on 2 December 2024.

Application for leave to re-open the trial

45    On 6 December 2024, the applicant filed the foreshadowed application for leave to re-open the trial of the Separate Questions for the purpose of:

(a)    filing and adducing in evidence a further supplementary expert report of Dr Richard Martin entitled “Short Report in relation to Society and Boundaries in the Western Kangoulu native title claim” dated 26 July 2024; and

(b)    filing and tendering in evidence any statement of agreed facts executed by them.

46    The application was supported by an affidavit of David John Knobel, the solicitor for the applicant, made on 6 December 2024. The affidavit exhibited a copy of Dr Martin’s further supplementary report.

47    On 12 December 2024, a further hearing was conducted. At the hearing, the applicant sought leave to re-open the hearing of the Separate Questions to file and adduce in evidence Dr Martin’s further supplementary report. The State did not oppose the grant of leave. The State also informed the Court that it considered it would not be appropriate to proceed with the application relating to the proposed statement of agreed facts in circumstances where Mr Huet’s application to be joined to the proceeding as a respondent had not been determined. At the conclusion of the hearing, I made orders:

(a)    granting the applicant leave to reopen the hearing of the Separate Questions for the purpose of adducing in evidence Dr Martin’s further supplementary report;

(b)    timetabling the joinder application for hearing on 31 January 2025; and

(c)    requiring any application for leave to reopen the hearing of the Separate Questions for the purpose of adducing in evidence a statement of agreed facts and/or to amend the pleadings with respect to the Separate Questions to be filed and served no later than 21 February 2025.

48    On 31 January 2025, I heard and dismissed the joinder application filed by Mr Huet with reasons published in Malone on behalf of the Western Kangoulu People v State of Queensland (No 4) [2025] FCA 36.

49    On 20 February 2025, the applicant filed an application for leave to reopen the hearing of the Separate Questions for the purpose of:

(a)    filing and adducing in evidence a statement of agreed facts dated 19 February 2025 executed by the applicant and the State; and

(b)    filing and serving a further further amended statement of facts and matters dated 20 February 2025.

50    The application was supported by an affidavit of David John Knobel, the solicitor for the applicant, made on 20 February 2025. The affidavit exhibited a copy of the statement of agreed facts and the further further amended statement of facts and matters. Mr Knobel deposed that the applicant and the State sought the Court’s leave to file the statement of agreed facts as evidence of their preparedness to resolve the entire proceeding, including the Separate Questions, by way of a determination by consent under s 87 of the Native Title Act.

51    On 6 March 2025, a further hearing was conducted. At the hearing, the applicant sought leave to re-open the hearing of the Separate Questions to file and tender in evidence the statement of agreed facts and to file and serve the further further amended statement of facts and matters. The State supported the grant of leave. At the conclusion of the hearing, I made orders granting the leave sought by the applicant.

52    The statement of agreed facts and its effect on the determination of the Separate Questions is discussed below.

Issues for determination at the time of trial

53    The issues to be determined at the time of trial of the Separate Questions were defined by the applicant’s further amended statement of facts and issues dated 15 September 2022 and the State’s earlier responsive document dated 25 August 2022.

54    It is fair to describe the State’s position on the Separate Questions as putting the applicant to proof. In response to most of the allegations of fact made by the applicant in its further amended statement of facts and issues, the State said that it did not know and therefore could not admit the allegation. As noted above, the State adduced no evidence at the trial of the Separate Questions, other than by way of tender of a relatively small number of documents in the course of cross-examination.

55    The primary issues that were required to be determined on the basis of the evidence adduced at trial were the following:

(a)    Who were the Aboriginal persons who held rights and interests in the land and waters of the claim area pursuant to their traditional laws and customs prior to the assertion of British sovereignty over that area?

(b)    What were the traditional laws and customs of the Aboriginal persons referred to in question (a), so far as can be known?

(c)    Under the traditional laws and customs of the Aboriginal persons referred to in question (a), were rights and interests in the land and waters of the claim area acquired by descent?

(d)    If so, are the members of the Western Kangoulu claim group the descendants of the Aboriginal persons referred to in question (a)?

(e)    If so, does the Western Kangoulu claim group continue to acknowledge and observe the traditional laws and customs under which rights and interests in the land and waters of the claim area are possessed and by which they have a connection to the land and waters of the claim area?

(f)    If so, what are those rights and interests?

56    The answer to question (a) has been a contentious issue in both this proceeding and in the “Ganggalu cluster” native title claims. The applicant’s anthropological expert, Dr Martin, explained in evidence that there is a relatively limited ethnographic record with respect to Aboriginal people in the claim area and surrounding areas, in comparison to other regions within Queensland and Australia. Dr Martin commented that, while a number of useful historical sources exist, first-hand anthropological and other socio-cultural research relating to the traditional laws and customs of Aboriginal people in the area is lacking.

57    Dr Martin’s opinion with respect to the identification of the Aboriginal people who occupied the claim area at sovereignty underwent some development over time, resulting from additional research undertaken by Dr Martin. It is, of course, entirely appropriate for an expert witness to amend their opinion in response to further data or research. That was the case with Dr Martin. The development in Dr Martin’s opinions did not cause me to doubt his expertise or the reliability of the opinions he expressed.

58    At the time of trial, and reflecting Dr Martin’s opinion at that time, the applicant contended that the Aboriginal people who occupied the Western Kangoulu claim area at sovereignty were part of a “broader Ganggalu regional society”, which “may have included people who identified as Wadja or Garingbal”. This reference to a broader Ganggalu regional society was based on early historical and ethnographic material that suggested that Ganggalu people occupied both the Western Kangoulu claim area and a broader area, including the claim area of the GNP claim, and that Wadja and Garingbal people may also have been part of the broader Ganggalu regional society.

59    As noted earlier, part of the eastern boundary of the Western Kangoulu claim area abuts the western boundary of the GNP claim area and the two claim areas can be described as adjacent, with the Western Kangoulu claim area being to the west and the GNP claim area being to the east. On 15 June 2023, Rangiah J concluded that the applicants in the GNP claim were unable to establish that they hold native title in the claim area: Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600 (Blucher No 3). His Honour found (at [1243]) that, under their traditional laws and customs, the Gaangalu people occupied much of the GNP claim area at sovereignty, but were dispossessed of their land through European settlement and violent dispersal, and then by legislative and executive actions. His Honour concluded that native title does not exist today because the Gaangalu people were not able to prove that they continue to acknowledge and observe traditional laws and customs under which they possess native title rights and interests. On 30 April 2024, Rangiah J made a negative determination of native title in respect of part of the GNP claim area, declaring that native title does not exist in relation to any part of the claim area to the west of the Dawson River: Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 4) [2024] FCA 425 (Blucher No 4). An appeal has been brought by the GNP applicant against the decisions made in Blucher No 3 and Blucher No 4 but, at the date of these reasons, no judgment on the appeal has been delivered.

60    The answer to questions (e) and (f) has been equally contentious in this proceeding for two reasons. First, a question arises about the extent to which the Western Kangoulu claim group continues to acknowledge and observe traditional laws and customs. Second, and relevantly for present purposes, a question arises about the identification of the Western Kangoulu claim group as, in effect, a sub-group of the “broader Ganggalu regional society”.

61    At the time of trial, Dr Martin expressed the opinion that, at sovereignty, the claim area was occupied by patrilineal local descent groups who were typically referred to in local languages with the use of the suffix ‘-bara/-burra/-bora[-bura]’ meaning ‘of’ or ‘belonging to’. Each such group occupied its own local areas within the broader area occupied by the regional society. With respect to the position today, Dr Martin expressed the opinion that:

Knowledge of such local groups and their territories has been lost across the Western Kangoulu claim group since colonisation, with Aboriginal people of the claim area today identifying with the label ‘Western Kangoulu’ which is derived from a linguistic or ‘tribal’ label rather than the name of a local group, in an adaptation of traditional law and custom. My opinion is that the label Western Kangoulu represents an amalgamation or coalescing of local groups with traditional connections to the Western Kangoulu claim area. In my opinion, Western Kangoulu people are the landholding group today rather than the patrilineal groups which existed at colonisation.

62    On the question whether the GNP claim group might also hold rights and interests in the Western Kangoulu claim area, Dr Martin expressed the opinion that:

… claimants recognise a shared identity with members of the Gaangalu Nation People. However, my revised opinion is that this shared identity does not indicate the holding of rights in common across the territory thought to belong to the larger language speaking or ‘tribal’ group. My revised opinion is that such things as the right to identify as a Kangoulu/Ganggalu people and to teach children about the Kangoulu/Ganggalu people do not relate to the holding of rights in country, and should not be described as ‘generic’ native title rights.

Absence of any competing native title claim to the claim area

63    In this proceeding, the applicant placed some reliance on the fact that there is no competing native title claim to the claim area and the claim by the Western Kangoulu people is not opposed by any Aboriginal respondent. The applicant’s anthropological expert, Dr Martin, expressed the opinion that the lack of overlapping claims or other legal disputes relating to the Western Kangoulu people’s native title claim indicates tacit support for the claim amongst neighbouring groups.

64    The absence of a competing native title claim should be acknowledged, but the inference sought to be drawn by the applicant from that fact must be treated with some caution. There may be a number of explanations for the absence of a competing native title claim.

65    It is correct that native title claimants in surrounding areas have not sought to oppose the Western Kangoulu claim. In particular, the claimants in the GNP claim (discussed above) made a claim in respect of an area that abuts the eastern boundary of the Western Kangoulu claim area, but have not claimed rights and interest in respect of the Western Kangoulu claim area or sought to oppose the Western Kangoulu claim. As noted above, the GNP claim was dismissed on 15 June 2023, with the Court concluding that the Gaangalu people were not able to prove that they continue to acknowledge and observe traditional laws and customs under which they possess native title rights and interests. Similarly, the claimants in the Clermont-Belyando Area native title claim (QUD25/2019) have not sought to oppose the Western Kangoulu claim. The claim area for that native title claim abuts the western and northern boundaries of the Western Kangoulu claim area. The claim was filed on behalf of a claim group calling itself the Wangan and Jagalingou people. Subsequently, a native title claim was filed on behalf of the Jangga people (QUD296/2020) which partly overlapped the claim area of the Clermont-Belyando Area native title claim. The question whether native title existed in the claim area of the Clermont-Belyando Area native title claim was heard by the Court over a period from 2019 to 2021. On 23 December 2021, Reeves J concluded that neither claim group had established that the ancestors of its members held rights and interests in the land and waters of the claim area under their traditional laws and customs at the time of the assertion of British sovereignty over the land and waters: Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639; 397 ALR 397 (Clermont-Belyando No 5) (at [1220] and [1221]). An appeal from that decision was dismissed on 12 December 2023: see Malone on behalf of the Clermont-Belyando Area Native Title Claim Group v State of Queensland [2023] FCAFC 190 in respect of the Clermont-Belyando Area native title claim and McLennan on behalf of the Jannga People #3 v State of Queensland (2023) 301 FCR 452 in respect of the Jannga people native title claim.

66    It should be acknowledged that native title applications have previously been made in respect of part or all of the Western Kangoulu claim area. Those applications are the Kangoulu People claim #1 (QUD6195/1998), the Wangan/Jagalingou People claim (QUD78/2005), the Garingbal Kara Kara claim (QUD23/2006) and the Bidjara People #7 claim (QUD644/2012). Each of those applications was either withdrawn or dismissed by the Court. Evidence was given about the background to some of those claims, but it is unnecessary to refer to that evidence in any detail. The evidence establishes, however, that members of the Western Kangoulu claim group have asserted native title rights and interests in the claim area from soon after the enactment of the Native Title Act.

67    In its closing submissions at trial, the State placed some emphasis on the fact that the Bidjara People #7 claim (which overlapped the Western Kangoulu claim area) was dismissed as an abuse of process in Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777 (Wyman No 6 and 7). In Wyman No 6 and 7, the Court concluded that the Bidjara People #7 claim was an attempt to relitigate an issue of fact which had been determined adversely to the Bidjara in the earlier decision Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Wyman No 2). In Wyman No 2, the Court concluded that, while at sovereignty the Bidjara held rights and interests in Carnarvon Gorge and Carnarvon National Park under their traditional laws and customs, the people who now identify as Bidjara no longer do so. The Court was not satisfied that a body of traditional law and customs, as opposed to attenuated or transformed fragments of law and customs, had continued (at [672]). An appeal against the conclusion in Wyman No 2 was unsuccessful: Wyman v Queensland (2015) 235 FCR 464 (Wyman FC). In Wyman No 6 and 7, the Court concluded that the earlier finding in Wyman No 2, that the traditional laws and customs of the Bidjara had not continued, was fatal to its claim in respect of the area that overlapped the Western Kangoulu claim area.

68    It can be accepted, as the State submitted, that the dismissal of the Bidjara People #7 claim did not involve any consideration by the Court of whether the Bidjara held rights and interests in the Western Kangoulu claim area at sovereignty. The claim was dismissed because the Court had earlier found (in respect of a different claim area) that the traditional laws and customs of the Bidjara were no longer acknowledged and observed to an extent that would sustain a finding of native title. However, some account can be taken of the fact that the Bidjara have not sought to oppose the Western Kangoulu claim. Despite the dismissal of the Bidjara People #7 claim, a representative of the Bidjara would have been legally entitled to become a respondent to the Western Kangoulu claim in order to oppose the claim (on the basis that the claim area was the traditional country of the Bidjara at sovereignty). It is therefore of some significance that no representative of the Bidjara people, or any other Aboriginal community, took that step.

The parties’ post-trial agreement

69    As discussed above, following the conclusion of the hearing of the Separate Questions, the applicant and the State engaged in mediation which culminated in the execution and filing of a statement of agreed facts addressing the Separate Questions. The applicant also filed a further supplementary expert report of Dr Martin which supports the conclusions stated in the statement of agreed facts, and the applicant filed a further further amended statement of facts and matters which brought the applicant’s claim into line with the statement of agreed facts. Each of those documents is summarised below.

Statement of agreed facts

70    The facts agreed in the statement of agreed facts are reproduced in full in Annexure B to these reasons. In summary, the applicant and the State have reached agreement with respect to the following facts for the purposes of, and as contemplated by, s 87(8) of the Native Title Act (which is discussed further below).

71    First, the parties agree that it is likely that the following persons (apical ancestors) held rights and interests in the claim area under the pre-sovereignty laws and customs acknowledged and observed by the Aboriginal people associated with the claim area, as at, or shortly after, effective sovereignty:

(a)    Polly aka Polly Brown aka Polly McAvoy;

(b)    John 'Jack' Bradley;

(c)    Hanny of Emerald;

(d)    Nannie, mother of Nelly Roberts; and

(e)    Annie/Nanny Duggan and Ned Duggan.

72    Second, from generation to generation since effective sovereignty, the Western Kangoulu people have likely continued to acknowledge and observe most of the pre-sovereignty laws and customs related to rights and interests in the claim area. Although the pre-sovereignty laws and customs have undergone varying degrees of loss, change and adaptation, the contemporary system of laws and customs under which rights and interests are held in the claim area remain rooted in the pre-sovereignty laws and customs. Those laws and customs include:

(a)    an understanding of the mythology of the claim area, including the spiritual forces inhering in the land or waters of the claim area;

(b)    a system of inheritance of identity and rights in land through different genealogical links, including adoption;

(c)    an understanding of spirits in the landscape, including appropriate ways of managing spiritual presence;

(d)    an embodied relationship between people and their land and waters;

(e)    the inalienability of rights in land and waters;

(f)    a variety of responsibilities to manage and protect the land and waters;

(g)    the customary use of natural resources;

(h)    recognition of gender specific and other sensitive significant sites at which certain access protocols apply;

(i)    a kinship system; and

(j)    a system of authority emphasising the role of senior people.

73    Third, by the foregoing laws and customs that they continue to acknowledge and observe, the Western Kangoulu people likely have a connection to, and hold native title rights and interests in, the land and waters of the claim area.

74    Fourth, those native title rights and interests are the following non-exclusive rights and interests in the claim area:

(a)    the right to access, be present on, move about on, and travel over the claim area;

(b)    the right to camp on the claim area, and for that purpose, erect temporary shelters on the claim area;

(c)    the right to take natural resources from the land and waters of the claim area for personal, domestic and non-commercial communal purposes;

(d)    the right to take the water of the claim area for personal, domestic and non-commercial communal purposes;

(e)    the right to maintain places of importance and areas of significance to the Western Kangoulu people under their adapted laws and customs, and protect those places and areas, from physical harm;

(f)    the right to teach Western Kangoulu people the physical and spiritual attributes of the claim area;

(g)    the right to bury Western Kangoulu people within the claim area;

(h)    the right to assemble and conduct ceremonies and other cultural activities on the claim area; and

(i)    the right to light fires on the claim area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

Further supplementary expert report of Dr Martin

75    As noted above, on 12 December 2024, I granted the applicant leave to re-open the trial of the Separate Questions for the purpose of filing and adducing in evidence a further supplementary expert report of Dr Martin.

76    The further supplementary expert report of Dr Richard Martin provided expert anthropological support for the statement of agreed facts. The report reflects a further development of Dr Martin’s opinion with respect to the “broader Ganggalu regional society” at sovereignty and the Western Kangoulu people today. Again, the development of Dr Martin’s opinion is based on additional information he received and additional research he undertook. Having reviewed the report, the development in Dr Martin’s opinion does not cause me to doubt Dr Martin’s expertise or the reliability of the opinions he has expressed. By agreeing to the statement of agreed facts, it is apparent that the State has reached the same conclusion.

77    In the further supplementary report, Dr Martin explained that he no longer considered that the concept of a broader regional society at sovereignty encompassing Gaangalu, Wadja and Garingbal people to be relevant. The observations concerning such a regional society arose from the substantial similarities of law and custom between those groups. However, it is Dr Martin’s view that, at sovereignty:

Gaangalu/Kangoulu people, that is, members of the Western Kangoulu and Gaangalu Nation People, were themselves a society 'which is united in and by law and custom' and comprised of 'people who share that common identity and language as Ganggalu people’ …

78    With respect to the position today, Dr Martin expressed the opinion that Western Kangoulu people today comprise a “society” (within the meaning of that word in native title jurisprudence). Dr Martin explained that:

Data from the lay evidence hearing indicate that Western Kangoulu people consistently describe themselves as united by their group identity, their laws and customs and their connection to the claim area through their ancestors. These data further demonstrate that Western Kangoulu people understand themselves to comprise a distinct group notwithstanding their broader view that they also share a common linguistic identity and traditional laws and customs which unites them with the adjoining Gaangalu Nation People.

Further further amended statement of facts and matters

79    By its further further amended statement of facts and matters, the applicant removed from its claim the contention that the Aboriginal people who occupied the claim area at sovereignty were part of a broader Ganggalu regional society which included people who identified as Wadja or Garingbal. In its place, the applicant inserted the contention that the Aboriginal people who occupied the claim area at sovereignty shared traditional laws and customs with a broader group of Gaangalu people who occupied land and waters extending from the Mackenzie and Comet Rivers east to the Dawson River. The applicant also clarified its contention that, today, the members of the Western Kangoulu claim group continue to be united in and by the pre-sovereignty laws and customs, as adapted, and continue to possess rights and interests in all of the land and waters of the claim area.

The legal effect of the statement of agreed facts

80    The agreement reached by the applicant and the State on the facts recorded in the statement of agreed facts is a significant milestone in this proceeding. The statement of agreed facts alters in a fundamental way the factual issues that were previously in dispute between the applicant and the State, and records the agreement between the applicant and the State on the central factual issues that are the subject of the Separate Questions. As the procedural history outlined above shows, it has taken a long period of time for the applicant and the State to reach agreement on these factual issues. It is commendable that the applicant and the State have committed themselves to the arduous process of research and analysis of the applicant’s claim to arrive at this point. In doing so, the applicant and the State have demonstrated their commitment to the principles recorded in the preamble to the Native Title Act, including the emphasis given to the role of conciliation as a means of justly and properly ascertaining native title rights and interests.

81    The evidentiary effect of a statement of agreed facts that is tendered in evidence is governed by s 191 of the Evidence Act 1995 (Cth) (Evidence Act) which stipulates that, in a proceeding, evidence is not required to prove the existence of an agreed fact and evidence may not be adduced to contradict or qualify an agreed fact, unless the court gives leave.

82    In proceedings under the Native Title Act, a statement of agreed facts may also be relied upon by the Court when making a determination of native title by consent under s 87(2) of the Native Title Act, or making an order in relation to a part of a proceeding or a matter arising out of a proceeding under ss 87(3) or (5). Subsections 87(8) to (11) relevantly stipulate as follows:

Agreed statement of facts

(8)     If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

(9)     Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court.

(10)     In considering whether to make an order under subsection (2), (3) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

(a)     the applicant; and

(b)     the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

(11)     In considering whether to accept under subsection (10) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (9).

83    In the statement of agreed facts, the applicant and the State recorded that the facts relating to the Separate Questions have been agreed for the purpose of a proposed consent determination under s 87 of the Native Title Act. That intention is also recorded in Mr Knobel’s affidavit dated 20 February 2025. However, the parties are not yet in a position to file an agreement on the terms of a consent determination under s 87 as issues of extinguishment and the nature and extent of other interests in the claim area (including questions arising under s 225(c), (d) and (e) of the Native Title Act) are to still to be finally determined. The final determination of those matters may take some time (perhaps 12 months).

84    In the present circumstances, the Court has a choice whether to wait for the parties to reach agreement on the terms of a consent determination pursuant to s 87 and finalise the proceeding exercising the powers conferred on the Court under s 87, or proceed to answer the Separate Questions taking into account the statement of agreed facts that has now been tendered. I have determined that the Court should proceed to answer the Separate Questions. While there is a high likelihood that the parties will be able to finalise an agreement on the terms of a consent determination pursuant to s 87, that result cannot be regarded as certain. There remains a possibility of disagreement with respect to the other issues that must be determined in the proceeding (issues of extinguishment and the nature and extent of other interests in the claim area). A decision on the Separate Questions has been reserved for a lengthy period and I consider it unsatisfactory for the decision to remain reserved for another lengthy period. By answering the Separate Questions, the Court will provide the parties with certainty about that aspect of the proceeding, which is likely to assist the parties in reaching agreement on the remaining issues to be determined.

85    In determining that the Court should proceed to answer the Separate Questions, I am also influenced by the fact that the parties have tendered the statement of agreed facts on the central factual issues that are the subject of the Separate Questions. As noted above, the evidentiary effect of tendering a statement of agreed facts is that evidence is not required to prove the existence of the agreed facts and evidence may not be adduced to contradict or qualify the agreed facts unless the Court grants leave.

86    That does not mean that the Court is bound to make findings in accordance with the agreed facts. As observed by the Full Court in Australian Securities and Investments Commission v BHF Solutions Pty Ltd (2022) 293 FCR 330 (at [24]), the effect of s 191 of the Evidence Act is to admit the agreed facts as evidence but it still remains for the Court to determine whether the facts are to be accepted as true and to determine what weight to attribute to that evidence. In the present case, the Court has heard extensive evidence with respect to the Separate Questions. That evidence cannot be ignored and the statement of agreed facts does not supplant that evidence. However, the Court is entitled to consider and weigh that evidence in light of the facts that have now been agreed between the parties.

87    A somewhat analogous circumstance arose in The Nyamal Palyku Proceeding (No 8) [2024] FCA 11 (Nyamal No 8). Justice Colvin conducted a trial to answer separate questions whether native title rights and interests existed in the claim area and, if so, the identity of the persons who held those rights. After the trial of the separate questions was completed and his Honour had reserved judgment, the parties reached agreement on the terms of a consent determination pursuant to ss 87 and 87A of the Native Title Act. In support of the consent determination, the parties filed a statement of agreed facts. Justice Colvin accepted the agreed facts, but his Honour also had regard to the evidence received during the hearing of the separate questions for the purpose of considering whether there is any aspect of that evidence that might mean that it is not appropriate to make the order sought without, at least, receiving further submissions from the parties (at [21]).

88    The present case differs from Nyamal No 8 because the parties are yet to reach agreement on the terms of a consent determination under s 87. I am answering Separate Questions, with the benefit of the statement of agreed facts, rather than exercising the powers conferred under s 87 to make a consent determination. Accordingly, it is necessary in the present case to assess all of the evidence before the Court, but to do so in light of the facts that have now been agreed between the parties.

89    At the hearing on 6 March 2025, the applicant and the State did not oppose the Court proceeding to answer the Separate Questions.

90    For completeness, it is noted that on 7 March 2025, the Chief Executive Officer of the Court gave notice to the other parties to the proceeding that the statement of agreed facts had been filed with the Court, in accordance with s 87(9) of the Native Title Act. None of those parties made any objection to the statement of agreed facts within 21 days after the notice was given. That fact will become relevant if and when the parties file an agreement on the terms of a determination pursuant to s 87(1) and the Court is requested to make an order consistent with the terms agreed by the parties pursuant to s 87(2).

B.    APPLICABLE LEGAL PRINCIPLES

The statutory provisions

91    By the application filed pursuant to s 61(1) of the Native Title Act, the applicant seeks a determination of native title in relation to the claim area. A “determination of native title” is defined in s 225 of the Native Title Act as:

… 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;

(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.

92    The Separate Questions concern only paragraphs (a) and (b) of that definition. The Separate Questions require the Court to determine:

(a)    whether, but for any question of extinguishment, native title exists in relation to any and, if so, what land and waters of the claim area; and

(b)    if so, who are the persons, or each group of persons, holding the common or group rights comprising the native title and what is the nature and extent of the native title rights and interests?

93    Section 223(1) of the Native Title Act provides the following definition of the terms “native title” and “native title 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.

Judicial explication of native title rights and interests

94    As the plurality (Gleeson CJ, Gummow and Hayne JJ) observed in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (Yorta Yorta) at [32], [45], [75]-[76], the native title rights and interests to which the Native Title Act refers are rights and interests finding their origin in pre-sovereignty traditional law and custom; they are not a creature of the common law and they are not created by the Native Title Act. Their Honours observed (at [76]):

The Native Title Act, when read as a whole, does not seek to create some new species of right or interest in relation to land or waters which it then calls native title. Rather, the Act has as one of its main objects (s 3(a)) “to provide for the recognition and protection of native title” (emphasis added), which is to say those rights and interests in relation to land or waters with which the Act deals, but which are rights and interests finding their origin in traditional law and custom, not the Act …

95    Australian courts have long recognised that the connection which Aboriginal people have with their country, emanating from their traditional laws and customs, is essentially spiritual. In Western Australia v Ward (2002) 213 CLR 1 (Ward HC), the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said (at [14], citations omitted):

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that:

“the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”.

It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. …

96    The plurality in Ward HC explained that the statutory definition of native title provided by s 223 has the following elements (at [17]):

(a)    first, the rights and interests may be communal, group or individual;

(b)    second, the rights and interests must be in relation to land or waters;

(c)    third, the rights and interests are those possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;

(d)    fourth, by those laws and customs (in other words, the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders under which the rights and interests are possessed), the Aboriginal peoples or Torres Strait Islanders have a connection with the land or waters; and

(e)    fifth, the rights and interests are recognised by the common law of Australia.

97    Each of those elements of the definition has been the subject of detailed explication in the authorities.

Traditional laws acknowledged and traditional customs observed

98    The phrase “traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders” in s 223(1)(a) is a reference to laws and customs having a normative content, being a body or system of normative rules that existed before the assertion of British sovereignty: Yorta Yorta at [38]-[40] and [46]. To speak of rights and interests possessed under an identified body of laws and customs is 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: Yorta Yorta at [50]). Laws and customs and the society which acknowledges and observes them are inextricably linked: Yorta Yorta at [55].

99    A “traditional” law or custom is one which has its origins in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of British sovereignty and which has been passed from generation to generation in the society, usually by word of mouth and common practice: Yorta Yorta at [46]. The reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty: Yorta Yorta at [47].

100    The plurality in Yorta Yorta was careful to note that reference to a normative system of traditional laws and customs may be distracting if undue attention is given to the word ‘system’, particularly if it were to be understood as confined in its application to systems of law that have the characteristics of a European body of written laws (at [39]). Nonetheless, the plurality observed that the term recognises the fundamental premise from which the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 proceeded, that the laws and customs of the indigenous peoples of Australia constituted bodies of normative rules which could give rise to, and had in fact given rise to, rights and interests in relation to land or waters (at [40]). Accordingly, the laws and customs in which the relevant rights or interests are founded must be laws or customs having a normative content and deriving from a body of norms or normative system that existed before sovereignty (at [38] and [42]). In Wyman No 2, Jagot J observed (at [455]) that “normative content” means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society.

101    The word “society” does not appear in s 223 of the Native Title Act. The plurality in Yorta Yorta explained (at [49]) that, in the context of the Native Title Act, the use of the word “society” is intended to convey no more than a body of persons united in and by its acknowledgment and observance of a body of laws and customs. Their Honours explained, by way of footnote, that they chose the word “society” rather than “community” to emphasise the close relationship between the identification of the group and the identification of the laws and customs of that group. In Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr), the Full Court (Wilcox, French and Weinberg JJ) expressed the following caution with respect to the use of the term “society” in the native title context (at [78]):

… 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.

102    Similarly, in Bodney v Bennell (2008) 167 FCR 84 (Bodney), the Full Court (Finn, Sundberg and Mansfield JJ) observed that it is not relevant to consider, for the purpose of s 223(1)(a), the continuation of a pre-sovereignty society as distinct from continued acknowledgement of traditional laws and customs. Their Honours stated (at [74]):

… It is not the society per se that produces rights and interests. 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. Change and adaptation will not necessarily be fatal. 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. 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.

103    The fact that there has been some change to, or adaptation of, traditional laws or customs in the period between the assertion of British sovereignty and the present day will not necessarily be fatal to a native title claim, provided the laws and customs can still be seen to be traditional. In Yorta Yorta, the plurality recognised that Aboriginal and Torres Strait Islander societies have experienced profound changes by reason of European settlement, causing inevitable changes to the structures and practices of those societies (at [89]). The laws and customs acknowledged and observed by an Aboriginal or Torres Strait Islander society will not cease to be traditional merely because the laws and customs have had to change or adapt in response to changed circumstances caused by European settlement. However, it remains necessary to demonstrate that “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” (at [89]). In assessing the extent of changes or adaptations made to pre-sovereignty laws and customs, difficult questions of fact and degree may emerge (at [82]). In Bodney, the Full Federal Court observed (at [120]) that:

In accordance with Yorta Yorta HC 214 CLR 422, when determining whether rights and interests are traditional, the proper enquiry is whether they find their origin in pre sovereignty law and custom, and not whether they are the same as those that existed at sovereignty. Clearly laws and customs can alter and develop after sovereignty, perhaps significantly, and still be traditional. …

104    Further, the fact that there has been some interruption of enjoyment or exercise of native title rights or interests is also not fatal to a native title claim. Section 223(1)(a) concerns the present possession of rights and interests, not their exercise, and s 223(1)(b) is concerned with the present existence of a relevant connection between the claimants and the land or waters: Yorta Yorta at [84].

105    The definition of native title rights and interests in s 223(1) does not require that all members of a given community or group have continued to acknowledge an observe traditional laws and customs; the relevant question is whether the community or group, as a whole, has sufficiently acknowledged and observed the relevant traditional laws and customs: De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose No 2) at [58] (Wilcox, Sackville and Merkel JJ). In State of Western Australia v Sebastian (2008) 173 FCR 1 (Sebastian), the Full Court (Branson, North and Mansfield JJ) observed (at [84]) that:

… The body of laws and customs under which native title rights and interests are possessed by a group of persons does not require that each member of the group has precisely the same knowledge of those laws and customs or that each member of the group fully comprehends in precisely the same way as each other member of the group how those laws and customs operate. …

106    Similarly in Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (No 2) (2008) 181 FCR 300, Bennett J observed (at [152], citing Sebastian):

The fact that Worimi describes some of the practices, such as hunting and fishing methods, differently from the description given by the other witnesses does not derogate from his evidence. It could well be the case that there were different ways of observing traditions. As was pointed out in Western Australia v Sebastian (2008) 248 ALR 61 at [84], a ‘body of laws and customs’ does not require identical practice, nor that each member of a group has precisely the same knowledge or comprehends the laws and customs in precisely the same way.

Rights and interests in relation to land and waters

107    Paragraph (a) of s 223(1) requires not only an identification of the relevant traditional laws or customs, but also the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs: Ward HC at [18].

108    Native title is properly understood as comprising a “bundle of rights”, reflecting the fact that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom may comprise several rights or interests and several kinds of rights and interests: Ward HC at [95]. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land: Ward HC at [95]; see also Bodney at [140].

109    In Ward HC, the plurality accepted the claimants’ submission that the right to “speak for country” was a core concept of traditional law and custom. Their Honours explained the content of this right as follows (at [88], [90], [91]):

88    … It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others (cf s 225(e)). The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.

…

90     As we have said, it may be accepted that the right to be asked for permission and to speak for country is a core concept in traditional law and custom. As the primary judge’s findings show, it is, however, not an exhaustive description of the rights and interests in relation to land that exist under that law and custom. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with “country” in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.

91    Reference was made in Mabo [No 2] to the inherent fragility of native title. One of the principal purposes of the NTA was to provide that native title is not able to be extinguished contrary to the Act (s 11(1)). An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land.

A connection with the land or waters

110    Paragraph (b) of s 223(1) requires that the relevant group of Aboriginal peoples or Torres Strait Islanders have a connection with the claimed land or waters by “those laws and customs” (being the laws and customs identified in respect of para (a)). Thus, s 223(1) involve two inquiries: under para (a), for the rights and interests possessed under traditional laws and customs; and under para (b), for connection with land or waters by those laws and customs: Ward HC at [18] and Bodney at [165]. Each element is sourced in the traditional laws acknowledged and the traditional customs observed by the claimants in question: Bodney at [165]. For that reason, the inquiries may depend upon the same evidence: Ward HC at [18] and, most recently, Stuart v South Australia [2025] HCA 12 (Stuart) at [19] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

111    As stated earlier, the connection which Aboriginal and Torres Strait Islander peoples have with country is essentially spiritual: Ward HC at [14]. The plurality in Ward HC further explained (at [64]):

In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters. That is, it 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. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. …

112    Connection involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs; this relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it: Alyawarr at [92], cited with approval in Bodney at [48]. The laws and customs themselves characteristically will 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 at [169]. Laws and customs that connect claimants to land or waters need not be exclusively ones that give the claimants rights and interests in the land or waters: Bodney at [169].

113    Connection to land or waters may have subsisted at a spiritual and/or cultural level notwithstanding that the claimants have not been able to maintain a physical presence on substantial parts of their traditional lands or waters: Bodney at [172], affirmed in Stuart at [24]. In De Rose No 2 the Full Court observed (at [62]):

… as the High Court made clear in Ward (HC) at [64], para (b) is not directed to how Aboriginal peoples use or occupy land or water. It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them. It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.

114    In Alyawarr, the Full Court said (at [88]):

… To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. …

115    For the same reasons, whether claimants continue to reside in the claim area is a relevant but not determinative consideration on the issue of connection. As RD Nicholson J observed in Daniel v Western Australia [2003] FCA 666 at [421]:

In bringing attention to that evidence [of connection] it will be important to have in mind where claimants are not resident on the claim area or portions of it. It will be equally important to have in mind the other lessons of that evidence, such as the reasons for that fact, whether attempts have been made to overcome it and whether it has in fact led to loss of connection with the claim area. This is particularly important in relation to the Yindjibarndi claimants, in relation to whom the evidence establishes that they now all live out of the claim area. From an examination of the evidence they have given I am satisfied that this historical circumstance has not broken the Yindjibarndi connection with their land and waters. …

116    In Neowarra v State of Western Australia [2003] FCA 1402, Sundberg J was satisfied that the evidence disclosed sufficient connection to satisfy s 223(1)(b) notwithstanding that a number of claimants lived outside the claim area, in Mowanjum and in Derby in northern Western Australia. His Honour observed (at [353]):

… There is continued acknowledgment of traditional laws and observance of traditional customs. Traditional ceremonies are enacted at Mowanjum and other settlements such as Maranbabidi. Ritual knowledge is passed on from generation to generation. Children are taught the laws and customs by their parents and grandparents. Stories from history, such as the Wanalirri story, are passed on and widely known. Many senior claimants were able to give detailed descriptions of the boundaries of their ancestral countries and language areas. There is evidence, especially from Paddy Neowarra, of the wurnan routes. There is also much evidence that where physical connection is not maintained with country, that is mainly due to practicalities – distance, the location of many claimants far from their country (eg at Mowanjum, outside the claim region), age and difficulty of access to rough terrain. I am satisfied that the Mowanjum claimants have maintained their connection with their countries, even though they are located away from them. They maintain that connection by practising their laws and customs at Mowanjum, and by asserting claims to country inherited from their forebears and having that assertion respected by their peers. I find that it is a characteristic of their laws and customs that a connection with country can be maintained by way of that assertion and acceptance. …

Required analysis

117    As has been explained in a number of decisions, s 223(1) of the Native Title Act requires the Court to consider the laws and customs of the present day claim group and to ascertain whether, under those laws and customs, the members of the claim group possess rights and interests in the claim area and, by those laws and customs, have a connection to the claim area. If they do, the Court then asks whether those laws and customs can be said to be “traditional”, noting that the concept of “traditional” is one which accommodates necessary adaptation of those laws and customs in response to European settlement of the claim area and the assertion of British sovereignty over the claim area (and the Australian continent): Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia [2015] FCA 9; 325 ALR 213 (Croft) at [640] (Mansfield J); Starkey v South Australia (2018) 261 FCR 183 (Starkey) at [46(d)] (Reeves J with whom White J agreed). This follows from the fact that the requirements of s 223(1) are drawn in the present tense: the definition is concerned with the traditional laws and customs presently acknowledged and observed and whether the claimants currently possess rights and interests under those laws and customs and have a current connection with the land and waters concerned by those laws and customs: see Yorta Yorta at [85]; Stuart at [20]-[21]; Starkey at [48].

118    The present day focus of the required analysis was explained in Wyman FC, as follows (at [182]-[186]):

182    Depending upon the evidence that is led in any case, claimants may establish that they continue to have a normative society rooted in the classical, sovereignty society out of which rights and interests contended for continue to be possessed, even where a range of rules and practices under laws and customs have ceased to be followed.

183    In the course of making an inquiry as to whether such a normative society continues, evidence of the loss of some classical laws and customs may be relevant, as may be the apparent creation of some new laws and customs. The inquiry remains, however, whether there continues to be a traditional normative society, notwithstanding there has been some loss, disuse or abandonment.

184    That inquiry is not properly made if it merely involves a “ticking off”, as it were, of classical laws and customs identified by the evidence having regard to the evidence of contemporary practices. There remains a requirement to consider whether what has been maintained, where that is found to be the case, demonstrates the maintenance of a normative system that is rooted in the sovereignty normative system.

185    Even where a group, or even an individual, has apparently lost much, but despite the vicissitudes of life since the coming of Europeans has maintained certain laws and customs under which rights and interests are possessed, native title may still be found to exist. This is because it may be seen, in an appropriate case, that the traditional normative system in material respects has not been lost, fallen into disuse or abandoned.

186    The question is whether the evidence in any case demonstrates that claimants are possessed of rights and interests under laws and customs that are rooted in the sovereignty laws and customs. Even a few claimants, or a single claimant, may possess such rights and interests, as indeed the s 223 definition of native title allows.

119    As explained by Barker J in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 (Badimia) at [356], s 223 does not require that the present day Aboriginal society maintains particular features of a “classical” society (ie, a society before European settlement). His Honour observed (at [358]-[360]):

358     In some instances, the continuing “vitality” of a group who have remained relatively unaffected, in relation to their law and customary practices, by the European settlement of Australia may be obvious, even to non-indigenous outsiders without any ethnographic training or experience. It may be that within that particular group the classical hallmarks of a pre-sovereignty group, as reflected in the anthropological evidence, are still extant. Depending on what part of Australia the group is from, members of the group may still speak their own distinctive Aboriginal language as a first language. They may observe a range of traditional rules concerning birth, initiation, marriage and death. They may have a section and subsection system or moiety system and kinship system that is on display for all to see, and conduct ceremonies involving many people. That same apparently classical group may also still depend, particularly among the members of the upper generations, on animals hunted, fish and birds caught, and foods gathered on their traditional country. But, depending on the evidence led in any case, the absence of a range of indicators of such a classical Aboriginal “society” does not necessarily mean that there is not today a body of persons united by their acknowledgement of traditional laws and observance of traditional customs under which they possess rights and interests in relation to their traditional country. A group of claimants, for example, may be extremely cross-cultural in the 21st century, that is to say, have their feet firmly planted in a broader Australian post-sovereignty society and live a contemporary life outside a claim area, and still maintain a connection to their traditional country in a way that meets the requirements of the s 223 definition of native title.

359     All that may be considered perhaps a long way of saying that merely because claimants may no longer converse in a distinctive Aboriginal language, conduct rites and ceremonies or live a bush life on country, for example, does not mean they cannot prove native title under the NTA.

360     It follows that the loss of many of the attributes of an inferred classical Aboriginal society will not necessarily carry with it the consequence that a claimant application must fail. The inquiry required under native title law under the NTA, as Yorta Yorta demonstrates, is more nuanced than that. Rather, it is driven by the need to make a factual inquiry into whether the requirements of s 223 have been met.

Problems of proof

120    In State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) (2013) 211 FCR 150, the Full Court (Allsop CJ, Marshall and Mansfield JJ) observed (at [34]):

… litigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. …

121    While native title litigation is not ordinary inter partes litigation, it is still litigation that is to be conducted and determined in accordance with the civil standard of proof: Sandy on behalf of the Yugara People v State of Queensland (2017) 254 FCR 107 at [34] (Reeves, Barker and White JJ). As Rangiah J observed in Malone FC at [99]:

It is true that litigation under the NT Act is not ordinary private inter partes litigation, at least in the senses that a determination may affect the interests of persons who are not parties and that the matter ordinarily remains in mediation throughout its currency. However, native title litigation does have many of the features of ordinary private inter partes litigation. The applicant bears the onus of proving that, aside from questions of extinguishment, native title exists in relation to the claim area: Western Australia v Ward (2000) 99 FCR 316 at [114], [120]. Section 140(1) of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the Court must find the case of a party proved if satisfied that the case has been proved on the balance of probabilities. Section 82(1) of the NT Act provides that the Court is bound by the rules of evidence, except to the extent that it otherwise orders.

122    It has been recognised in many native title cases, however, that applicants face unique problems of proof, arising from the statutory requirement to prove the continued acknowledgement and observance of laws and customs that are traditional, in circumstances where such laws and customs have historically been transmitted from generation to generation through an oral tradition. In Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510, Mortimer J (as her Honour then was) provided the following explanation of what the civil standard of proof requires in the context of a native title application (at [13]):

… the Court’s answers to the Separate Questions depend on reaching a view about what, on the evidence before it, are more likely than not to be the facts. That is what the civil standard “balance of probabilities” means. The Court does not decide what the “truth” is in any absolute sense. The Court is not in that sense the arbiter of history. The Court decides whether the party who must prove the necessary facts has shown the facts it contends for are more likely than not to have existed. In circumstances which involve the level of historical reconstruction that these Separate Questions do, that is not only all that is required; it is all that can reasonably be expected. This exercise is carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence. The Court must assess what, reasonably and rationally, can be made of the evidence before it. …

123    In most native title cases, witness testimony will be incapable of providing direct evidence of the laws and customs acknowledged and observed at the time of the assertion of British sovereignty, and the continued acknowledgment and observance of the laws and customs at all times since. Inevitably, there will be gaps in the historical record. In those circumstances, it is necessary for the Court to draw appropriate inferences based on a combination of witness testimony, historical records and anthropological opinion. In De Rose v State of South Australia [2002] FCA 1342, O’Loughlin J concluded as follows (at [570]):

… I am of the view that, having regard to the nature of evidence that is prevalent in native title cases (being only oral histories of cultures supplemented to a very limited degree by occasional rock art and artefacts) I would be entitled to draw the necessary inferences in favour of the claimants, provided there was a proper foundation for me to do so: see the remarks of Kirby P (as he then was) in Mason v Tritton at 588. That is, if I were to be satisfied that the claimants currently have a connection with the claim area through traditional laws and customs observed and acknowledged, and the best evidence available provides some support for the presence of that connection in the past (traceable by various means such as ancestors, marriage, migration and incorporation and even tribal disputes and wars), it might be open to me to make a finding of substantial maintenance of continuity of connection from sovereignty to the date of the application for a determination of native title; this might even be so notwithstanding significant gaps in the chronology in the historical timeline for the claim area. To place any higher burden of proof on the claimants, who have a wholly oral tradition that reaches back reliably no further than three or (in a few cases) four generations, would be manifestly oppressive.

124    Similarly, in Gumana v Northern Territory of Australia (2005) 141 FCR 457, Selway J concluded (at [201]):

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

C.    OVERVIEW OF THE EVIDENCE

125    At the trial of the Separate Questions, the applicant adduced evidence from 10 lay witnesses and two expert witnesses, Dr Martin and Dr Maclean. The State adduced no witness evidence, although it tendered a number of documents in the course of cross-examination of Dr Martin. This section provides an overview of the applicant’s evidence.

Applicant’s lay witness evidence

126    Lay evidence was given by the following witnesses in a hearing room at the Emerald Agricultural College and at other locations within the claim area. The locations at which evidence was given are marked on Map 5 of the bundle of maps tendered in evidence (by reference to site numbers). Those locations, the dates on which evidence was received at those locations and the witnesses who gave evidence at the locations were as follows:

(a)    on 30 August 2022, evidence was received at Hannam’s Gap within the Drummond Range on the western boundary of the claim area (site 22) from Lizabeth Johnson, Hedley Henningsen, Patrick Malone and Jonathon Malone;

(b)    on 31 August 2022, evidence was received at Lake Maraboon (site 4) from Patrick Malone, Jonathon Malone and Hedley Henningsen;

(c)    on 31 August 2022, evidence was received at Hanny’s birth-place in Emerald (site 2) from Hedley Henningsen and Lizabeth Johnson;

(d)    on 31 August 2022, evidence was received at a former camp site and the birth-place of Lizzie Thomas (daughter of Hannie, whose Aboriginal name was Berrimgoo), both on Theresa Creek within Glenelg Station (site 34), from Cheyne O’Chin and Hedley Henningsen;

(e)    on 31 August 2022, evidence was received at Lilyvale Waterhole (site 6) from Lizabeth Johnson and Hedley Henningsen; and

(f)    on 1 September 2022, evidence was received at the junction of Theresa and Sandy Creeks (site 37) from Patrick Malone, Cheyne O’Chin and Hedley Henningsen.

Lizabeth Johnson

127    Ms Johnson was born in 1952 in Cherbourg, Queensland and now lives in Bundaberg, Queensland. Ms Johnson identifies as a Kangoulu / Birri Gubba (Widi) woman although she identifies more strongly as a Western Kangoulu woman and with Western Kangoulu country. Ms Johnson is the daughter of Bowman Johnson and Edith McGrath. Ms Johnson claims to hold rights and interests in the claim area through descent from her father, Bowman Johnson, who is a descendant of Hanny of Emerald. Ms Johnson’s father said that he was Kangoulu (although he said it as “Ganggalu”) and that he was close to Emerald and Clermont. He also said he was Widi (or “Wiri”). Ms Johnson said that her father was a strong, proud man for both sides.

128    Ms Johnson provided two statements to the Court dated 27 August 2018 and 19 August 2021 which were tendered in evidence. Ms Johnson also gave oral testimony at Hannam’s Gap on 30 August 2022, Hanny’s birth-place and Lilyvale Waterhole on 31 August 2022 and at Emerald on 2 September 2022 and was cross-examined.

Hedley Henningsen

129    Hedley Henningsen was born on 23 May 1974 in Brisbane and lives in Bundaberg, Queensland. He is one of the named applicants for the claim. Mr Henningsen identifies as Ganggalu and claims to hold rights and interests in the claim area through descent from his mother, Lizabeth Johnson, who is a descendant of Hanny of Emerald. Mr Henningsen stated that although he has Birri Gubba/Widi descent as well, he does not claim rights and interests in that country – all his energy is going into Western Ganggalu country.

130    Mr Henningsen provided two statements to the Court dated 24 August 2018 and 19 August 2021 which were tendered in evidence. He also gave oral testimony at Hannam’s Gap on 30 August 2022, Lake Maraboon, Hanny’s birth-place, Glenelg Station and Lilyvale Waterhole on 31 August 2022, and at the Junction of Theresa and Sandy Creeks and in Emerald on 1 September 2022, and was cross-examined.

Patrick Malone

131    Patrick Malone was born on 8 May 1951 in Brisbane. He lives in Canberra in the Australian Capital Territory. Mr Malone identifies as Western Kangoulu and claims to hold rights and interests in the claim area through descent from his mother, Mona Maude, whose own mother, Jessie Malone, was the daughter of Polly McAvoy. Mr Malone stated that his children are Western Kangoulu through him. He has passed on knowledge of Western Kangoulu country and Western Kangoulu laws and customs to his children.

132    Patrick Malone provided two statements dated 23 August 2018 and 17 August 2021 which were tendered in evidence. Mr Malone also gave oral testimony at Hannam’s Gap on 30 August 2022, Lake Maraboon on 31 August 2022, the Junction of Theresa and Sandy Creeks on 1 September 2022 and in Emerald on 5 September 2022, and was cross-examined.

Jonathon Malone

133    Jonathon Malone is the son of Patrick Malone. He is one of the named applicants for the claim. He was born in Rockhampton on 25 February 1977, where he still lives. Jonathon Malone identifies as Western Kangoulu and claims to hold rights and interests in the claim area through descent from his father. He explained that while he has family connections with other places (his mother is Nunukul/Quandamooka, from Stradbroke Island and his great grandfather on his father’s side is Lenny Malone, from around Alpha), his interests are with Western Kangoulu people.

134    Jonathon Malone provided two statements dated 29 August 2018 and 19 August 2021 which were tendered in evidence. Mr Malone also gave oral testimony at Hannam’s Gap on 30 August 2022, Lake Maraboon on 31 August 2022 and in Emerald on 5 and 6 September 2022 and was cross-examined.

Cheyne O’Chin

135    Cheyne O’Chin was born in Brisbane on 27 June 1963. He lives in Gracemere, Queensland (which is close to Rockhampton). Mr O’Chin identifies as Western Kangoulu and claims to hold rights and interests in the claim area through descent from his adoptive father, Edgar Broome, a descendant of Jack Bradley. Cynthia Broome, another member of the claim group, is Mr O’Chin’s sister.

136    Mr O’Chin made a statement dated 20 August 2021 which was tendered in evidence. He also gave oral testimony at Glenelg Station on 31 August 2022, the Junction of Theresa and Sandy Creeks on 1 September 2022 and in Emerald on 2 September 2022 and was cross-examined.

Cynthia Broome

137    Cynthia Broome was born in Longreach, Queensland on 30 September 1969 and now lives in Rockhampton, Queensland. She is one of the named applicants for the claim. Ms Broome identifies as Ganggalu and claims to hold rights and interests in the claim area through descent from her father, Edgar Broome, who is a descendant of Jack Bradley, who was born in Emerald. Ms Broome also has a connection to Western Kangoulu people on the side of her mother, Ms Veronica Broome (née O’Chin). Veronica Broome was the daughter of Jack O’Chin, who was adopted by Abraham Johnson and Lizzie Thomas. While Cynthia Broome therefore has a connection to Western Kangoulu on both sides of her family, she explained that she “follows [her] father’s side”, as her mother always told her to.

138    Ms Broome provided two statements to the Court dated 29 August 2018 and 17 July 2021 which were tendered in evidence. Ms Broome also gave oral testimony in Emerald on 6 September 2022 and was cross-examined.

Karen Broome

139    Karen Broome was born on 3 January 1968 in Bundaberg, Queensland, where she still lives. Ms Broome is a named applicant in the proceeding. Ms Broome identifies as Western Kangoulu and claims to hold rights and interests in the claim area through descent from her mother, Priscilla Broome, who is a descendant of Nellie Roberts and her mother Nannie.

140    Ms Broome provided two statements to the Court dated 26 August 2018 and 17 July 2021 which were tendered in evidence. Ms Broome also gave oral testimony in Emerald on 6 September 2022 and was cross-examined.

Priscilla Broome

141    Priscilla Broome (deceased) was born at Rockhampton on 9 April 1945 and, at the time of swearing her affidavit, lived in Bundaberg, Queensland. She identified as Ganggalu and claimed to hold rights and interests in the claim area through descent from her father, Ivan Roberts and his mother, Nellie Roberts. Ms Broome’s mother, Clare Saunders, was Gunggari, however Ms Broome followed her father’s side for country.

142    Ms Broome swore an affidavit in the proceeding on 4 May 2013. She died on 26 December 2015. Ms Broome’s affidavit was read into evidence without objection.

Vassa Hunter

143    Vassa Hunter was born on Palm Island in Queensland on 27 May 1947. She now lives in Aitkenvale, Queensland. Ms Hunter identifies as Ganggalu and claims to holds rights and interests in the claim area through descent from Hanny of Emerald through her father, Harry Johnson and her grandmother, Lizzie Johnson. As Ms Hunter’s grandfather, Abraham Johnson, was Birri Gubba/Widi and her Granny Lizzie was Ganggalu, her father identified as both Ganggalu and Birri Gubba/Widi, as does she.

144    Ms Hunter swore an affidavit on 30 June 2017 which was read into evidence. Ms Hunter also gave oral testimony in Emerald on 6 September 2022 and was cross-examined.

Steven Raymond Kemp

145    Steven Kemp was born at Mackay on 29 July 1960 and now lives in Woorabinda. Mr Kemp is a Ghungalu elder and one of the named applicants for the GNP claim. Mr Kemp gave evidence about his understanding of the boundaries of Ghungalu country and Western Ganggalu country.

146    Mr Kemp affirmed an affidavit on 16 July 2021 which was read into evidence in Emerald on 7 September 2022 and was cross-examined.

Assessment of the lay witness evidence

147    In its closing submissions at the trial of the Separate Questions, the State acknowledged that the lay witnesses appeared to hold genuine beliefs and made no challenge to the credibility or reliability of the witnesses. Nevertheless, the State criticised the quality of the evidence given by the witnesses, suggesting that the evidence was “generally recent in origin” and at times inconsistent. In that regard, the State advanced four submissions.

148    First, the State submitted that the evidence relating to the location and significance of any important sites and myths or stories relating to them was sparse, vague and lacking in detail. The State noted that the evidence did not establish any surviving totemic or mythical site knowledge apart from the creation of the rivers, creeks and, according to some witnesses, the landscape more generally by Mundagudda, a serpent creator being.

149    Second, the State submitted that the evidence indicated that a number of witnesses undertake or have undertaken cultural heritage work in the claim area and it can be inferred that those witnesses have gained at least part of their knowledge about the claim area from undertaking that work.

150    Third, Dr Martin’s evidence records the historical violence and dislocation experienced by the original inhabitants of the claim area following European settlement. Dr Martin expressed the opinion that the removal of the original inhabitants of the area to Woorabinda and Barambah (later Cherbourg) negatively impacted on the continuity of traditional laws and customs as people were relocated away from the claim area and their knowledge of the area declined. The State acknowledged that the lay evidence suggests that the ancestors of the claim group who were removed from the claim area did form a close social group, but submitted that there was limited evidence that they performed ceremonies or passed on ritual knowledge and stories.

151    Fourth, and related to the third point, the State submitted that significant contemporary knowledge held by the lay witnesses has come from people who did not identify as Ganggalu or were not Ganggalu by descent. These include people included:

(a)    Abraham Johnson (who is identified by anthropologist Norman Tindale as Widi from Clermont and by Caroline Tennant-Kelly as Wierdi from Clermont district) and his son Bowman Johnson (who the witnesses identified as having both a Widi or Birri Gubba identity and a Ganggalu identity); and

(b)    Lennie Malone (Uncle Mully) who is identified by Patrick Malone and Jonathan Malone as being from Alpha, which is in the area of the Clermont Belyando Area native title claim.

152    Aspects of the State’s criticisms have force, but other aspects are overstated or do not have the significance that the State attached to them. It is correct that the lay witnesses’ traditional knowledge can be described as limited, when compared with the likely extent of the systems of knowledge and belief of the Aboriginal society in occupation of the claim area prior to European settlement. Apart from attenuated knowledge of the serpent creator being called Mundagudda, and attenuated knowledge of certain birthing practices, the witnesses displayed relatively confined knowledge of traditional laws and customs governing or directing behaviours within the Western Kangoulu community. It is highly likely, as stated by Dr Martin, that this is explained by the removal of the original inhabitants of the claim area to Woorabinda and Barambah (later Cherbourg). However, contrary to the State’s submission, I would not infer that witnesses who have engaged in cultural heritage work in the claim area have gained any material part of their knowledge about the claim area from undertaking that work. Further, whilst some of the traditional knowledge held by the witnesses would have been received from people who did not identify as Kangoulu, the State did not substantiate that this constituted a material part of the knowledge held by the lay witnesses.

Applicant’s expert genealogical evidence

153    The applicant tendered three expert reports prepared by Dr Hilda Maclean.

154    At the time of preparing her first report, Dr Maclean held the role of Consultant (Archival, historical and genealogical research) in the Culture and Heritage Unit of the University of Queensland. Dr Maclean earned a PhD from the University of Queensland in 2015.

155    The first of Dr Maclean’s reports, dated 13 September 2018 and titled “Review of Genealogical Data” (Maclean 2018 Report), provided a genealogical description of the descendants of the persons identified as the apical ancestors of the Western Kangoulu claim group (who are referred to as Hanny of Emerald, Nannie, Polly, John ‘Jack’ Bradley; and Annie and Ned Duggan). In the report, Dr Maclean provided genealogies for each of those ancestors, numbered 1-5 in the report.

156    Dr Maclean’s second report, dated 21 March 2021 and titled “Charlotte Costello: Elaboration of genealogical and historical research” (Maclean 2021 Report), concerns the identification of any descendants of Charlotte Costello.

157    Dr Maclean’s third report, dated 17 March 2022 and titled “Basis for updated genealogies of: Hanny and John Jack Bradley” (Maclean 2022 Report), provided updated genealogies for Hanny of Emerald and John (Jack) Bradley. The updated genealogies were for use in Dr Martin’s Supplementary Report. The Maclean 2022 Report was Appendix G to Dr Martin’s Supplementary Report, but was tendered as a separate document in the proceeding.

158    Dr Maclean’s reports were tendered without objection and she was not required for cross-examination. I accept her evidence in full.

Applicant’s expert anthropological evidence

159    At the trial of the Separate Questions, the applicant tendered two expert reports prepared by Dr Richard Martin. Dr Martin was cross-examined on 15 and 16 September 2022. As noted earlier, on 12 December 2024 I granted the applicant leave to file and adduce in evidence a further report of Dr Martin.

160    Dr Martin holds the position of Senior Lecturer (Anthropology) in the School of Social Science at the University of Queensland. He has held this and similar anthropological research and teaching positions at the University of Queensland since January 2012. Dr Martin earned a PhD from the School of Social and Cultural Studies, University of Western Australia, in 2012. The PhD was obtained in the disciplines of anthropology and cultural studies. Research for his PhD focused on race relations around the southern Gulf as well as Aboriginal and non-Aboriginal senses of place. This involved intensive fieldwork with Aboriginal people, particularly Garawa and Ganggalida people to the west of the Leichhardt River, but including other Aboriginal and some non-Aboriginal people resident around the Gulf country. Interspersed with fieldwork for his PhD and post-doctoral academic research, Dr Martin has also undertaken work as a consulting applied anthropologist, including in a significant number of native title claims.

161    Dr Martin was initially requested by the applicant to co-author an expert report with Dr Dee Gorring in relation to the Western Kangoulu people’s native title claim application. With supervision and oversight by Dr Martin, Dr Gorring undertook a literature review for that report, including an assessment of ethnographic and historical sources. Dr Gorring also undertook fieldwork for that report, including interviews with members of the claimant group and site visits. Dr Martin undertook a brief review of the literature to assist Dr Gorring. He also undertook some limited fieldwork and interviews with claimants to assist Dr Gorring, and reviewed drafts produced by her and, with reference to source material and conferring with Dr Gorring, made revisions and additions to that report such that the opinions in the final report were described as jointly held. The expert report co-authored by Dr Martin and Dr Gorring was filed on 13 September 2018. Following the completion of that report, Dr Gorring ceased working on the matter.

162    In late 2018, Dr Martin was provided with further material in preparation for his participation in joint conferences of experts on 21 February 2019 and 22 February 2019 with respect to the Ganggalu cluster native title claims. Following the conferral, Dr Martin co-authored two joint statements together with anthropologists engaged on behalf of the claimants in the other Ganggalu cluster claims, being:

(a)    the Joint Statement in relation to society for the GNP, Western Kangoulu and Wadja claims dated 21 May 2018 and prepared by Dr Kim de Rijke, Dr Martin, Dr Gorring and Mr Kim McCaul (21 May 2018 Joint Statement); and

(b)    the Joint Statement in relation to common apical ancestors on the Western Kangoulu and GNP claims dated 31 May 2018 and prepared by Dr de Rijke, Dr Martin and Dr Gorring (31 May 2018 Joint Statement).

163    In June 2021, the applicant requested that Dr Martin prepare a supplementary report for use in the Western Kangoulu proceeding. That report, dated 20 August 2021, is the first of Dr Martin’s reports tendered in this proceeding and is titled “Supplementary Report for the Western Kangoulu People’s Native Title Determination Application” (Martin Supplementary Report).

164    Subsequently, Dr Martin revised the 2018 report that was co-authored with Dr Gorring so that it became a report solely authored by Dr Martin, in recognition that Dr Gorring was not available to give evidence in the proceeding. The revised report is dated 18 March 2022 and was tendered in the proceeding (Martin Revised Report). In addition to re-phrasing the report so as to express the joint opinions as being his own opinions, Dr Martin revised the original report to address certain evidentiary objections made by the State and to include reference to additional material that Dr Martin had considered for the purposes of his Supplementary Report.

165    The applicant also sought to tender at trial a number of other anthropological reports that had been prepared for the purposes of the Ganggalu cluster claims, including the 21 May 2018 Joint Statement and the 31 May 2018 Joint Statement. The State objected to the tender of those documents. For the reasons given in Malone No 3, I ruled that the Joint Statements were admissible in so far as they were relied upon by Dr Martin as a foundation for opinions expressed in his Supplementary Report or his Revised Report, but that the other reports were inadmissible. Accordingly, the Joint Statements were tendered.

166    As also discussed earlier, as a result of discussions that occurred between the applicant and the State after the trial of the Separate Questions, Dr Martin was engaged to prepare a further supplementary report which specifically addressed the body of persons or society acknowledging and observing the laws and customs under which the Western Kangoulu people hold native title in, and by which they are connected to, the claim area. On 12 December 2024, I granted the applicant leave to re-open the trial of the Separate Questions for the purpose of filing and adducing in evidence the further supplementary expert report of Dr Martin entitled “Short Report in relation to Society and Boundaries in the Western Kangoulu native title claim” dated 26 July 2024 (Martin Further Supplementary Report).

167    In its closing submissions at trial, the State submitted that many aspects of Dr Martin’s evidence lacked adequate factual foundation and reasoning to sustain the opinions expressed and should not be given any significant weight. In support of that submission, the State referred to Dr Martin’s reliance on research undertaken by anthropologists in connection with the Ganggalu cluster native title claims, including the opinions expressed in the Joint Statements. The State submitted that Dr Martin’s evidence failed to refer to the research and the basis material that underpinned the work of the other anthropologists, with the result that the State and the Court could not test the foundational data and reasoning of Dr Martin.

168    I reject that submission. To a large extent, the State’s submission repeated arguments that had been advanced by the State when objecting to the admissibility of Dr Martin’s evidence. I rejected those arguments in Malone No 3. In its closing submissions, the State recast those arguments as matters going to weight rather than admissibility, but the foundations for the arguments were largely the same. So too, the answer to the State’s criticisms remains the same. For the reasons expressed in Malone No 3, the State’s submission that Dr Martin’s opinions lacked adequate factual foundation and reasoning is rejected.

169    The State advanced a number of other criticisms of Dr Martin’s evidence. The State submitted that:

(a)    Dr Martin’s treatment of the work of other anthropologists appeared to be selective (giving one example);

(b)    there was no evidence that Dr Martin’s engagement in the proceeding was other than episodic;

(c)    Dr Martin changed his opinion in important respects in relation to the question of the pre-sovereignty society and classical land holding arrangements;

(d)    Dr Martin’s original report was co-authored with Dr Gorring, with fieldwork having been undertaken by Dr Gorring, and Dr Martin did not explain the extent to which he had independently undertaken the work previously done by Dr Gorring;

(e)    neither Dr Gorring nor any of the other experts on whom Dr Martin relied gave evidence before the Court and therefore their opinions and Dr Martin’s reliance upon them ought to be given little if any weight.

170    I reject each of those criticisms. They were not fairly based and failed to take into account the considerable burdens faced by native title claimants in making claims before this Court.

171    Aboriginal societies have been the subject of historical and ethnographic research by amateur and professional researchers since shortly after European settlement of the Australian continent. Academic anthropological research increased during the 20th century, and continued into the “native title era” (the period after the enactment of the Native Title Act). As a consequence, for any given area that is the subject of a native title claim, there may be range of historical, ethnographic and anthropological material relevant to an understanding of the Aboriginal people in occupation of the area prior to European settlement and throughout the period of settlement to the present day. The material may include anthropological reports prepared in the native title era in respect of earlier native title claims over part or all of the area concerned, or in respect of adjacent areas. For the reasons explained in Malone No 3, it is both permissible, and indeed necessary, for an anthropologist engaged to provide expert evidence in a native title claim in respect of a given area to have regard to the full range of historical, ethnographic and anthropological research bearing upon the claim area. It is wholly unrealistic, and unnecessary, to expect a party in a native title proceeding to call as expert witnesses all anthropologists who may have undertaken research in relation to the area concerned.

172    As also explained in Malone No 3, a considerable number of anthropological reports have been prepared in respect of the Ganggalu cluster native title claims. In preparing his reports for the present proceeding, Dr Martin had regard to that other work. That is understandable because of the likelihood of a connection between the Aboriginal people in occupation of the claim area, and adjacent areas, prior to European settlement. It is both unrealistic and unnecessary to expect the applicant in the present proceeding to fund separate anthropological research with respect to areas adjacent to the claim area and that are the subject of separate native title claims, or to expect that the applicant would be able to call all of the other anthropologists as expert witnesses in this proceeding. Dr Martin was entitled to have regard to that other research for the purposes of providing anthropological evidence in the present proceeding, provided he explained his reasoning based on that research and his own work and analysis. Such an approach is both permissible under the rules of evidence and necessary, as otherwise the costs of bringing native title claims would become prohibitive to applicants.

173    Turning to the specific criticisms made by the State, the submission that there was no evidence that Dr Martin’s engagement in the proceeding was other than episodic lacks merit. The engagement of all expert witnesses in a proceeding is episodic. The submission that Dr Martin changed his opinion in important respects in relation to the question of the pre-sovereignty society and classical land holding arrangements also lacks merit. In its criticism, the State failed to acknowledge that Dr Martin was entirely transparent about the development in his opinions and explained the reasons for the change. The Court would be far more concerned about an expert witness who does not change their opinion in response to new evidence. The submission that Dr Martin did not explain the extent to which he had independently undertaken the work previously done by Dr Gorring (when their co-authored report was prepared) is rejected. Dr Martin did explain both his involvement in the original co-authored report and the steps he took to re-verify the report. Further, Dr Martin was entitled to rely on field work undertaken by Dr Gorring for the purposes of the co-authored report. The submission that Dr Martin’s reliance upon research undertaken by Dr Gorring and other anthropologists engaged in connection with the Ganggalu cluster claims reduces the weight to be given to Dr Martin’s evidence is rejected for the reasons already given.

174    In its closing submissions, the State sought to challenge a number of Dr Martin’s opinions. In preparing these reasons, consideration has been given to the State’s arguments in that regard. However, the State’s arguments carry less weight in circumstances where the State elected not to call an expert anthropologist as a witness in the proceeding. The circumstance in which the State elected not to call Dr Kenny as an expert witness has been described earlier. As the State elected not to call Dr Kenny, and Dr Kenny’s report was ruled inadmissible, the Court has had no regard to Dr Kenny’s opinions. The end result is, however, that the State’s criticisms of Dr Martin’s opinions are not supported by any contrary expert evidence adduced by the State.

175    An illustration of the weakness of the State’s criticisms is afforded by the State’s submission that Dr Martin’s treatment of the work of other anthropologists appeared to be selective. The State gave one example in support of that criticism, which concerned the question whether people identified by the name “Kairi” had rights and interests in the claim area at sovereignty. The State referred to the facts that Norman Tindale identified the area that broadly comprises the claim area as Kairi country and two informants told Mr McCaul that they believed that the claim area was Kairi. The difficulty with the State’s submission is that there is conflicting historical and ethnographic material concerning the identity of the Aboriginal people in occupation of the claim area prior to and shortly after European settlement. The proper evaluation of that material requires the exercise of anthropological expertise. The mere recitation by the State of two pieces of evidence supporting a conclusion contrary to the opinion formed by Dr Martin does not support a submission that Dr Martin’s treatment of the work of other anthropologists was selective. In the particular example given by the State, I am not persuaded of any lack of balance in the assessment undertaken by Dr Martin.

176    Overall, I considered that Dr Martin expressed his opinions carefully, acknowledging limitations in the historical and ethnographic record, and properly explained the basis for his opinions. I regard the opinions expressed by him as reliable and I give them considerable weight in this judgment.

D.    HISTORICAL BACKGROUND

177    This section of the reasons describes the early history of European settlement in the claim area and the dispossession of its original Aboriginal inhabitants. It is drawn from the Martin Revised Report, as well as certain of Dr Martin’s source materials.

Arrival of Europeans and effective sovereignty

178    Prior to European settlement, Aboriginal people were in occupation of the claim area. The British Crown asserted sovereignty over the claim area on 26 January 1788 (“sovereignty”). However, there was only minimal contact between Europeans and Aboriginal people in the claim area prior to the late 1850s and early 1860s. The parties agree that “effective sovereignty” was the period between 1845 and the early 1860s when European settlement first occurred in the claim area. The concept of effective sovereignty provides a date up to which it may be inferred that the acknowledgement of laws and observance of customs by the original inhabitants of the country continued essentially unchanged: see Clermont-Belyando (No 5) at [9] and a collation of first instance and Full Court decisions which have adopted this approach at [10]. The parties agree that, at the time of effective sovereignty, the circumstances and state of affairs in relation to Aboriginal people who occupied the claim area, including the laws and customs acknowledged and observed by them, were essentially the same as they were at sovereignty.

179    This is broadly consistent with the view of Dr Martin. In his Revised Report, Dr Martin expresses the opinion that effective sovereignty was around 1860. Although European exploration of Central Queensland appears to have taken place in the early 1840s (in particular, Ludwig Leichhardt travelled through the eastern edge of the claim area along the Comet River in 1845), contact with Aboriginal people was minimal. The town of Rockhampton, to the east of the claim area, was proclaimed in 1859, although Emerald was not established until 1879. Nevertheless, Aboriginal people had substantive contact with European settlers through the establishment of the earliest pastoral stations which were opened in the claim area around 1860 at Cullin-La-Ringo, Emerald Downs and Gordon Downs.

Violence and dislocation

180    As European settlement reached across Queensland, large tracts of land were taken up by settlers for pastoral stations and contact between Aboriginal people and settlers in the claim area intensified. The spread of colonial settlement involved significant violence for Aboriginal people in Central Queensland. It is now well-recorded that the Queensland Native Police engaged in extensive violence towards Aboriginal people in the second half of the 19th century, leaving a shameful legacy of killings and the dispersal of Aboriginal people from their traditional country.

181    The Cullin-La-Ringo conflict is a well-documented example of such violence and its impacts. The Cullin-La-Ringo station was established in 1861 by the Wills family from Victoria. It is located in the claim area, north of the modern-day town of Springsure. In October 1861, the European squatters at the station were attacked and killed by Aboriginal people. While it remains unclear exactly why the squatters were attacked, it is known that there had been a dispute between Aboriginal people and pastoralists over sheep at a neighbouring property in the preceding weeks which had led to a reprisal attack by the Queensland Native Police. It is possible that the attack at Cullin-La-Ringo was in retaliation for the reprisal attack by the Queensland Native Police. While the number of squatters reported to have been killed at Cullin-La-Ringo vary, the Sydney Morning Herald reported from an eye witness that 17 non-Indigenous people were killed (Sydney Morning Herald, 16 November 1861). Reprisals for this attack by the Queensland Native Police were swift. In a dispatch to London on December 1861, Governor Bowen reported that Sub-Lieutenant Cave and his party of troopers killed an estimated 70 Aboriginal people. However, other reports estimate that the number of Aboriginal people killed in the reprisals was higher than the 70 mentioned in Bowen’s report. Writing over thirty years later, but apparently drawing on “local knowledge”, the Rockhampton Bulletin (4 August 1899) reported that:

About three hundred of the natives were shot down or drowned in the lake. Up till a year ago numerous evidences of the battle could be seen in the shape of skulls and bones strewn about the hill sides. Recent bush fires have, however, destroyed almost all the remnants of the conflict. An occasional bone or skull is all that now remains.

182    Incidents such as Cullin-La-Ringo led to the dislocation of Aboriginal people within the claim area as people fled violence. Dr Martin notes in his report that Bligh, the Native Police Commandant at the time, said that massacres such as Cullin-la-Ringo “would not have occurred if the blacks had been kept off station properties altogether”, indicating what may have been an unofficial policy in this regard:

It is a well-known fact among the Squatters on this River that no murders were committed at any station where the Blacks were entirely kept out. Upon these precedents, I have instructed Second-Lieutenant Moorhead and the officer with him not to allow any Blacks to remain at the Stations in their District, but to send them away without violence if possible, that is to say except in self-defence.

Dwelling on the fringes of European society

183    With violence and dislocation during the initial period of European contact, Aboriginal people who had occupied the claim area were forced to move to the outskirts of the new towns being formed in the claim area, and across Central Queensland. In his Revised Report, Dr Martin quotes the historian, Professor Henry Reynolds, who observed that townspeople “found Aborigines useful as cheap unskilled labour in the notable absence of an adequate supply of white domestic servants”, where they were paid in “food scraps, opium, or old clothes; or not at all”. A Rockhampton correspondent to the Queensland Guardian made the following comment about the use of Aboriginal labour in 1863:

Far from being a curse, they prove an admirable, and in our present situation, an almost necessary social auxiliary - ministering to our wants and necessities in fifty different ways.

184    Professor Reynolds observed that Aboriginal people were more protected around towns than on pastoral stations in the bush, as there were always “some residents who opposed the use of indiscriminate violence and who afforded protection to the local Aborigines”. Town camps therefore became “sanctuaries” of a kind, where Aboriginal people could shelter and earn a meagre living in the immediate aftermath of colonisation. However, Professor Reynolds commented that Aboriginal camps could “not be so near the town as to offend the Europeans who were liable to drive its residents away”. In his Revised Report, Dr Martin states that he has found references to one such incident occurring at Clermont, north of the claim area, in 1879, when the Clermont town camp was dispersed by Europeans. The Capricornian (31 May 1879) reported that:

The Blacks at Clermont.— The blacks have been numerous about Clermont for some weeks past. They have been waiting for their blankets, the distribution of which commences to-day; and the cravings of hunger have set them first to beg, and then to steal. They go out hunting frequently; but having become semi-civilised, they cannot get along without bread, tea and sugar; and they are fond of a little chicken. The residents at the lower end of the lagoon are sufferers from their depredations. The blacks' camp is within two hundred yards of some of their houses; and on Saturday they stole several of Mrs. Brown's fowls, and roasted them at their camp-fire in broad daylight. They also entered two dwelling occupied respectively by Mrs. Brown and Mr. Whitney, and carried off what rations they could find. They had little time to make merry. Two or three of the townspeople armed with revolvers, visited the camp, dispersed the blacks by firing over their heads, shot some of their dogs, and set fire to their belongings, consisting of greasy old rags, and a collection of waddies, boomerangs tomahawks, &c.

Soon the camp was reduced to a heap of debris. A few blacks ventured to leave their hiding places in the course of the week and were seen hovering round the old spot, but it is not likely they will settle down so near town again. They are a great nuisance, and it is difficult to know how to deal with them.

185    Dr Martin observes, however, that contemporaneous newspaper sources indicate that Aboriginal people continued to congregate in camps near Clermont (north of the claim area) and near towns within the claim area (including Emerald and Capella). Many of those sources express views of Aboriginal people that are derogatory, and it is unnecessary to reproduce that evidence in these reasons. Occasionally, newspaper correspondents expressed concern about the treatment of Aboriginal people living and traveling in the claim area. A correspondent from Capella wrote (Capricornian, 30 October 1906):

One little matter should obtain publicity. That is the treatment the blacks receive in our locality. The law says a blackfellow or gin cannot be employed without an agreement. In the first place, very few persons require the blacks permanently, and the blacks themselves prefer short jobs. If a gin is seen doing work, she is hunted by the police. If a blackfellow goes fishing, he is hunted by a stockman or boundary rider. If he goes opossum hunting he is interfered with by the trappers. Altogether the life of the poor black is not enviable.

Removal to reserves and missions

186    In the late 19th and early 20th centuries, government policies were developed, ostensibly to “protect” Aboriginal people, but avowedly to assimilate Aboriginal people into European society. Dr Martin explained that this policy shift impacted Aboriginal people in the claim area through the removal of people from camps on pastoral stations and in towns towards government and Church-run “reserves” and missions such as Woorabinda, Barambah (now Cherbourg), Palm Island, and elsewhere. Woorabinda is within the GNP claim area and is approximately 200 kilometres from Emerald. Cherbourg is at a further distance from the claim area, being nearly 700 kilometres by road from Emerald.

187    In her 2018 Report, Dr Maclean summarised the Aboriginal “protection” laws in Queensland and some of their effects on the lives of Aboriginal people (which will be referred to collectively as the “Protection Acts”). The first such law was the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), which placed regulatory controls on Aboriginal people, including those of mixed Aboriginal and non-Aboriginal heritage. Dr Maclean noted that the Aboriginals Preservation and Protection Act 1939 (Qld) (1939 Protection Act) introduced the "ticket of exemption" for Aboriginal people believed to be sufficiently “Europeanised”. To obtain an exemption certificate, applicants had to be “half-caste and civilised” and have no contact with other Aboriginal people, and then only on satisfying the Department of Native Affairs of their ability to manage their own affairs. Once a person was exempt from the 1939 Protection Act, they were not allowed to live on a mission or settlement. So, in order to be granted an exemption certificate, the individual had to cut themselves off from further contact with all those members of their family who were not exempt, or who were still living on a mission or reserve. The 1939 Protection Act remained in force until the Aborigines and Torres Strait Islanders Affairs Act 1965 (Qld) was passed. Under that Act, the office of Protector was abolished and nearly all the provisions relating to people living off reserves were repealed.

188    As an illustration of the restrictions imposed on Aboriginal people under the “protection” Acts, Dr Maclean quotes the “Protector of Aborigines”, Walter E. Roth, from his Annual Report in 1900, in which Mr Roth states that: “No marriage of a female aboriginal with any other than an aboriginal should be celebrated without the authority of the Home Secretary”. In noting limitations in the available genealogical data, Dr Maclean also quotes Mr Roth, from his Annual Report in 1903, in which Mr Roth states:

In reply to inquiries from the Registrar-General's Department, I have received the following information:—Births and deaths of full-blooded aboriginals are not registered, whether residents at Mission Stations or elsewhere. Births of half-castes are registered only when certified to by the white parent, and the matter of civilisation would be considered when deciding whether or not the death of a half-caste should be registered.

189    Dr Martin noted that some Aboriginal people appear to have remained in the claim area for at least some years without being removed to a mission or reserve. However, little data is recorded about this population, who avoided the intensive administrative and bureaucratic controls that removal produced. Some data from Springsure (just to the south of the claim area) indicates that a number of Aboriginal families remained in the district at least for some time after assimilation policies began. For example, the Cubby family of Springsure seemed to have stayed put, being recorded at Springsure from 1906 to at least 1938. The Solomon family of Springsure was also resident until at least that time, with George Solomon identified as a stockman in 1915 by the Aboriginal War Census. He stayed in the district until he was removed to Woorabinda with his wife, Topsy, in 1937. Sandy Solomon (presumed to be his brother) is also in the 1915 census but was still recorded as resident in Springsure in 1938. Other data indicates that a number of others remained in other towns across the claim area.

190    However, the majority of the Aboriginal population of the claim area and the broader region of Central and South-East Queensland was removed to places like Woorabinda and Cherbourg, where they mixed extensively amongst each other. Lizabeth Johnson stated that there were up to “27 different groups at Cherbourg at any one time”. While resident at these reserves, younger Aboriginal people were trained for work in European society, with girls generally being trained as domestic servants and other household roles, and boys as manual farm labourers, or for work on the railroads. This frequently involved the separation of children from their parents.

191    Dr Martin stated that fieldwork with the claim group, and the statements of members of the claim group, indicate that forebears of many of the members of the claim group were removed to Cherbourg, although others went to Woorabinda and Palm Island and Stradbroke Island. While recognising that some members of the claim group were associated with Woorabinda, Palm Island, Stradbroke Island and elsewhere, Cherbourg was the reserve in which the forebears of the claim group were largely located (a noted exception being Vassa Hunter, who was born at Palm Island in 1947 and gave evidence about how families congregated with each other at Palm Island).

1960s to 1970s – changes in policy

192    Dr Martin observed that, in the 1960s and 1970s, gradual changes in government policies relating to Aboriginal peoples saw policies of “protection” and assimilation give way to policies that sought to promote Indigenous empowerment. This included the enactment of land rights legislation leading to a renewed recognition of individual tribal identity, language, customs and traditions. The following decades also facilitated a return of members of the claim group to the claim area. Dr Martin expressed the opinion that this history has allowed for “some continuities of traditional laws and customs in the context of great loss and significant change”.

193    Dr Martin observed that, over the last few decades, cultural heritage has come to play a significant role in the claimants’ lives. For some claimants, this period facilitated their first access to the claim area. For example, Karen Broome commented:

I first went onto Western Kangoulu country in 2002. I was about 3 months pregnant with my youngest daughter, so I remember it well. I went out to do some cultural heritage work. I went with my brother John, and my sister Francine. We were really excited to be on Mum’s ancestors’ country.

194    Dr Martin further observed that cultural heritage enabled more intensive access to the claim area. For example, Karen Broome explained how she acquired her knowledge of the area from her mother. In a field interview in 2018, she told Dr Martin:

As I got older Mum explained about the family and the country here and I started doing a bit of work in the paddock, cultural heritage. Over the years Mum explained about Capella and Sandy Creek…. Mum just told me she used to be in Capella with her grandmother Nellie Roberts … She was taken from there. I didn’t know really well until I started asking Mum questions. Mum was trying to explain little bits of things. She always said, this is all our country through her mother Nellie Roberts…. Kids learn through their grandmother, my Mum Priscilla. Mum put them all down and told ‘em about country.

195    In 2008, members of the native title claim groups representing the Western Kangoulu and the Gaangalu Nation People respectively agreed that distinct corporations would manage native title and cultural heritage matters on either side of the Comet River, with the Moonda Gudda Aboriginal Corporation taking charge of such matters to the west, and the Ghungalou Aboriginal Corporation in charge of such matters east of that river.

E.    THE ABORIGINAL SOCIETY BEFORE EUROPEAN SETTLEMENT

Introductory remarks

196    In considering whether native title rights and interests in the claim area exist for the purpose of s 223(1) of the Native Title Act, it is convenient to begin with the evidence concerning the identification of the Aboriginal people in occupation of the claim area at the time of sovereignty and their laws and customs. I refer to those people as the “Aboriginal society”, using the term “society” in the sense explained by the High Court in Yorta Yorta.

197    As has been observed in a number of cases, the use of the word “society” in native title jurisprudence can present difficulties. It is not a statutory term. It is a word that was adopted by the High Court in Yorta Yorta to describe a body of persons united in and by its acknowledgment and observance of a body of law and customs having a normative content (Yorta Yorta at [38] and [49]). As explained by Jagot J in Wyman No 2 (at [455]), normative content means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society. Further, and as emphasised by the Full Court in Alyawarr, the word “society” is a conceptual tool for use in the application of the requirements of s 223 of the Native Title Act (at [78]).

198    In the course of his evidence concerning the Aboriginal society in occupation of the claim area before European settlement, Dr Martin used the word “society” with a number of different adjectives: core society; regional society; and associative society. The intended meaning of each of those terms was not always clear. In using those different terms, I infer that Dr Martin was attempting to state his opinions in a manner that would be comprehensible within native title jurisprudence. Unfortunately, the use of the different terms frequently had the opposite effect.

199    When the whole of Dr Martin’s evidence is considered, including his oral testimony, it is clear that Dr Martin’s use of the expression “regional society” was an attempt to explain aspects of the primary historical and ethnographic evidence that suggested a close association or relationship between Aboriginal people who were known by different language or tribal names. The close association or relationship arose from the geographic proximity of the people and their observance of similar laws and customs (at least in the eyes of the researchers or their informants).

200    In considering the evidence concerning the Aboriginal society in occupation of the claim area before European settlement, two matters must be kept in mind.

201    First, the applicant is not required to prove the characteristics and features of that society at any prescribed level of detail. Ultimately what must be proved is that the claim group continues to acknowledge and observe traditional laws and customs under which rights and interests in the land and waters of the claim area are possessed and by which they have a connection to the land and waters of the claim area. This requires proof that the origins of the content of the present day laws and customs are to be found in the normative rules of the Aboriginal society that occupied the claim area prior to the assertion of British sovereignty, and that the laws and customs have had a continuous existence and vitality since sovereignty. Encompassed within that requirement is that the members of the claim group have acquired their rights and interests in the claim area under those laws and customs which, in the present case, requires proof that the members of the claim group are the descendants of the Aboriginal society that occupied the claim area prior to the assertion of British sovereignty.

202    Second, the applicant is not required to prove that the Aboriginal society in occupation of the claim area before European settlement is unchanged, or that the laws and customs acknowledged and observed by that society are unchanged. At the time of European settlement, an Aboriginal society may have extended over a wider area than the claim area. That circumstance, of itself, is not an obstacle to a finding that certain descendants of that society, or part of that society, continue to acknowledge and observe traditional laws and customs under which rights and interests in the land and waters of the claim area are possessed and by which they have a connection to the land and waters of the claim area. So too, at the time of European settlement, smaller groups within the Aboriginal society may have held rights and interests in estates that are smaller than the claim area, but where the society as a whole may have held rights over the entirety of the claim area. That circumstance, of itself, is not an obstacle to a finding that, today, the traditional laws and customs have been adapted to confer rights and interests in the claim area to all members of the claim group.

203    Thus, the examination of the Aboriginal society in occupation of the claim area before European settlement is only a stepping stone, albeit an important stepping stone, in the consideration of the applicant’s claim to hold native title rights and interests today.

204    In his Revised Report, Dr Martin considered the evidence concerning the Aboriginal society in occupation of the claim area before European settlement under two headings. The first was “the traditional society at sovereignty” and the second was “the traditional laws and customs at sovereignty”. As discussed above, the word “society” is used in native title jurisprudence to describe a body of persons united in and by its acknowledgment and observance of a body of law and customs having a normative content. Thus, a traditional society cannot be described or defined without reference to the body of laws and customs acknowledged and observed by the people concerned. The approach taken by Dr Martin in his Revised Report was a means of organising the historical and ethnographic evidence. For convenience, these reasons follow Dr Martin’s approach, whilst recognising that conclusions about the Aboriginal society in occupation of the claim area before European settlement require consideration of all of the evidence.

The Aboriginal society at sovereignty

205    Under this heading, Dr Martin’s Revised Report gathered the available historic, ethnographic and linguistic sources relating to the identity of the Aboriginal people in occupation of the claim area before European settlement.

Edward M Curr

206    The earliest identification of named Aboriginal groups in the claim area and surrounding regions is found in Edward M Curr’s third and fourth volumes of “The Australian Race”. These volumes present information about Aboriginal groups from pastoralists, police officers and other correspondents across Australia. Curr standardised the responses he received through the formulation of a questionnaire and then compiled this information regionally and prepared an indicative map showing the locations from which the data was obtained. The relevant portion of that map is extracted below:

207    Curr’s map locates a “tribe” number 156 on the Nogoa River and north of the town of Springsure, indicating that this group was situated within the claim area. Curr provides the following information from his correspondents:

I have received vocabularies of the dialects of two tribes which dwell on the Nogoa River. The first is from Mr T. Middleton, and is accompanied by an account of the tribe which use the language, and the second from Mr. E.I. Noble, who does not state the particular part of the river from which he obtained his words. It is clear, however, that the two languages are nearly related. The name of the tribe concerning which Mr Middleton writes is Bimuraburra. Their country lies twenty five miles north of Springsure, and was first occupied as a station in 1861. (Curr 1887a:90).

208    Curr’s “tribe” number 157 on the map is bisected by the boundary of the current native title claim. In respect of this area, Curr cites what he has been told about the “Kanoloo” tribe by an informant named Thomas Josephson:

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 Mr Josephson first 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. (Curr 1887a:96)

209    Just to the east of the claim area, Curr’s informant McIntosh (who had previously lived at Rio Station south of the junction of the Dawson and Mackenzie Rivers around the time of effective sovereignty in the region, circa 1860), provided Curr with details about the “Kaangooloo”, whom Curr depicts as group 150 and suggests multiple other named groups sharing the same “tongue” or language:

Besides a vocabulary, Mr McIntosh also forwarded me a very interesting letter, from which the following are extracts: “I have filled up the accompanying vocabulary as far as memory serves in the Kaangooloo Thaa, in which I could converse indifferently some thirteen years since. I regret I find how much I have forgotten. … The Kaangooloo 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.”

210    Of these records, Dr Martin observes that one interpretation of these similar names is that the name Kanoloo recorded by Josephson is a mishearing (or mistranscription) of the name Kaangooloo recorded by McIntosh et al., with Josephson missing the phoneme ‘ng’ sound. Dr Martin states that, based on his experience of non-Indigenous people’s attempts to understand Aboriginal language words, this interpretation is probable, although the limited amount of information presented by Curr makes definitive conclusions about these group names problematic. Dr Martin considers that McIntosh’s description of himself as able to “converse indifferently” in this language lends support to this interpretation, as his facility with the language probably resulted in him being able to hear its distinct phonemes better than Josephson.

Giroonbah, Mathews, Howitt and Cameron

211    Following Curr, a number of other amateur researchers and commentators recorded the traditional locations of Aboriginal groups in the region.

212    Under the pseudonym Giroonbah, the author of a report to The Queenslander newspaper in 1895, titled “Ethnology, Aboriginal Nomenclature”, wrote about the “Kong-oo-loo” who inhabit the country lying between the Mackenzie River and the lower Dawson. Dr Martin observes that, by Giroonbah’s account, Kong-oo-loo inhabited an area to the east of the Western Kangoulu claim area. Dr Martin observed that it is not known who Giroonbah was, or the bases for this opinion. However, “Kong-oo-loo” appears closely cognate with Kanoloo and Kaangooloo (while registering the ‘ng’ phoneme). Dr Martin states that, in his opinion, while this data is inherently limited, it is probable that Giroonbah has recorded a cognate form of the Ganggalu label and identity.

213    R. H. Mathews was a surveyor and amateur ethnographer who published about Aboriginal people and their territories around the continent based on his own research and information provided by correspondents. Like Curr, there is no evidence that Mathews conducted fieldwork in this part of Queensland. Instead, he relied on local correspondents for his information as well as drawing on his own research elsewhere in Australia. Mathews’ “Nations of Aboriginal tribes in Queensland” was published in 1898. In this publication, Mathews described the claim area as part of “Nation 2”, which he calls Kogai-Yuipera. Dr Martin observed that Mathews’ “nations” were conceived at a broad scale, with each nation composed of certain communities or aggregates of “tribes”. Each nation was labelled by Mathews after “one or two of the tribes therein”. While Mathews provides a series of named “tribes” for each of these nations, he does not name any “tribes” specifically linked to the claim area. However, in a later publication, Mathews identifies what he calls “a tribe called Kang-ool-lo” around the junction of the Dawson and Fitzroy rivers (to the east of the claim area):

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.

214    Mathews received this information about the local region from the pastoralist William Flowers. Flowers owned properties near Bogantungan and Rockhampton and, according to his nephew, had made “a careful study” of the Aboriginal people of the area “and was accepted as an authority on their customs”. While not trained as an anthropologist, Flowers maintained an amateur interest in Aboriginal life and questioned Aboriginal people with whom he interacted on his pastoral station. His correspondence with Mathews notes, “I have travelled a good deal in the central districts and have generally asked the blacks their class names and usually taken notes on them, but unfortunately I have lost all the notes” (Flowers 1898: 5). Dr Martin notes that, as an illustration of the challenges in interpreting this information, Flowers’ information differs from that published by Mathews in that it refers to the “Kan-ullo tribe” (rather than the Kang-ool-lo tribe) and locates the tribe at Duaringa (rather than at the junction of the Dawson with the Fitzroy).

215    Alfred Howitt was an explorer and early Australian anthropologist. Like Curr and Mathews, Howitt did not conduct fieldwork in Central Queensland in preparing The Native Tribes of South-East Australia (1904). Rather, he reproduced information from a range of correspondents, including William Flowers and J.C. Muirhead. Howitt also credits the correspondent Giroonbah with the following data:

The country between the Mackenzie River and the Lower Dawson, therefore south-westerly from the Kuinmurbura tribe, was occupied by the Kongulu tribe up to 1895. Probably it has become extinct, because at that time it was terribly demoralised by the wholesale distribution of opium in lieu of wages, and given as bribes, as well as by the retail distribution of it.

216    Howitt’s map of the region is reproduced below:

217    Dr Martin observed that the lack of key features on this map such as the Nogoa and Comet Rivers raises some uncertainty in relation to the precise location of Howitt’s labels on the map.

218    It can be seen that Howitt locates a range of additional groups around the region, with these groups typically referred to via the use of the suffix “bura” (also -bara/-burra/-bora), which he interprets as meaning “of or belonging to”. On his map, Howitt locates a group called Wakelbura in the region, with this name provided by a correspondent pastoralist called Muirhead:

West of the Great Dividing Range … there were many tribes having the four sub-class system on the waters of the Belyando, Barcoo, Thomson, and Flinders Rivers, and of which I take the Wakelbura as an example.

219    Howitt also draws on Christison, another pastoralist from Queensland, for groupings further west. He also prepared a more detailed map for the “Wakelbura” area, which associates two additional names with the claim area: the “Auanburra” and the “Bithelbura”.

220    Dr Martin expresses the opinion that Howitt collated the information he received to produce this map while seeking to reconcile instances where sources conflicted or diverged from the records published by Curr and others. One source relied on by Howitt is a rough map produced by J.C. Muirhead, which leaves the area south of Clermont, including the Nogoa River, absent of any Aboriginal group names. Muirhead identifies groups to the south of the Wakelbura in his text including the Wandilibura and Bibingbura, noting that the “Bibingburas come in company with the Wandiliburas”. Howitt’s research cites Muirhead in identifying a number of these labels around the claim area, including the “Bithelbura” and “Auanbura”, as well as the “Wakelbura”. However, Howitt acknowledges:

It is somewhat uncertain whether the Wakelbura is to be considered as a tribe, a sub-tribe, or merely a horde of a large tribe. Perhaps the latter may be the true view to take, yet in such a case there ought to be some common name to show the extent of the tribe…. If the Wakelbura is a horde of a large tribe, the following would be the hordes composing it … Wakelbura, … Kumbukabura … Auanbura … Dorobura … Mutherabura … Munkibura’

221    Howitt further records that one of these “groups” “changed its name to Waralbura” in 1883-1886. Howitt further states:

[a]djoining these hordes there were other tribes, or hordes of tribes, which were more or less nearly related to them’, and that ‘Two tribes also became extinct in the year 1865; and when the Bithelbura tribe, who lived north-east of the Auanbura, died out the latter took their country’

222    Dr Martin states that, in his opinion, this discussion indicates Howitt’s confusion and conflation of Aboriginal identity labels, language names, and local groups, with Howitt seemingly using the terms “hordes” and “tribes” interchangeably in ways which are not supported by current understandings of local organisation in anthropology and are apt to cause confusion. Howitt’s publication indicates his own confusion about these terms in multiple places, noting that “bara/-burra/-bora/-bura” groups are “lesser groups” than “tribes”, while explaining that “I have not been able to satisfy myself on these points”. Dr Martin observes that anthropological research undertaken since Howitt’s work was published has clarified the meaning of these terms.

223    Dr Martin observes that Howitt’s discussion reflects his lack of understanding of Aboriginal local organisation, which at that stage (in 1904) was poorly researched. Howitt’s description of his groups describes them:

[a]s in all cases … composed of lesser groups, each occupying its own area of hunting and food group. The still smaller groups were little more than undivided families consisting of several generations, for instance of grandparents, children and grandchildren occupying areas of about 10 miles radius. A number of such families hunted over the same area, and the whole community which attended the Dora ceremonies covered an extent of from 50 to 60 miles radius.

224    Dr Martin stated that, in his opinion, while Howitt is writing about the Maryborough region, this description of lesser groups applies also to his recording of “-bara/-burra/-bora/-bura” groups around the claim area. In his opinion, Howitt’s description of these “lesser groups” best aligns with contemporary understandings of local descent groups. The anthropological literature from across the continent (excluding some places, notably Central Australia) indicates these local groups were probably patrilineal.

225    Howitt’s discussion further indicates that these “lesser groups” joined in ceremonies and shared other aspects of traditional law and custom with each other. Howitt states that:

The strength of the bonds connecting the Wakelbura and the tribes farther out may be estimated by the following particulars. All the tribes, sub-tribes, or hordes mentioned, as the case might be, and with others still more distance, as for instance the Mutabura from the Upper Thomson River, did not come to the Wakelbura ceremonies in a body, nor did the Yankibura…. A few of them accompanied the Kombukabura, and when the Wakelbura went to the Mutabura or the Yankibura ceremonies, it was only a few of them who did so, in company with the Aunbura or Kumbukabura people. The same applies to all the distant tribes, which had some relations with the Wakelbura, and visited them. The rule was that the nearer tribe came in a body, and the more distant were represented by a few members, who accompanied some other friendly tribe.

226    Dr Martin stated that, in his opinion, this quotation indicates that Howitt’s “-bara/-burra/-bora/-bura” groups are part of a broader grouping, sharing aspects of traditional law and custom with each other. Taken together with Howitt’s expressed uncertainty about the meaning of terms, in Dr Martin’s opinion the probable explanation is that Howitt was recording local groups which formed part of a broader grouping of Aboriginal people sharing aspects of traditional law and custom, and holding rights and interests beyond the areas they were occupying, as “hunting and food group[s]”. Howitt’s reference to “the Bithelbura tribe, who lived north-east of the Auanbura” taking over “their country” around the year 1865 demonstrates, in Dr Martin’s opinion, that these “lesser groups” were probably local descent groups who formed part of broader rights-holding group comprising a number of such local groups.

227    In 1904, the commentator Cameron (1904) published a brief paper in the journal “Science of Man” in which he presented information on the “Karingbool” tribe, which he said, “inhabits the country in that locality, and whose language I am informed can be understood by many tribes in the Fitzroy Watershed”. Cameron does not address Ganggalu people by any cognate term in this paper.

228    Dr Martin expressed the opinion that the information provided by these early commentators Giroonbah, Mathews, Howitt, and Cameron offers relevant information. However, due to the limited information recorded by these early commentators, and their limited understanding of Aboriginal local organisation, their work is prone to misinterpretation. In Dr Martin’s opinion, these sources indicate that patrilineal local descent groups probably existed in the claim area at the time of sovereignty. These sources further confirm that the Ganggalu label and identity pre-dates European settlement and probably functioned as a term of reference for a broader grouping of local groups speaking the same language.

Caroline Tennant-Kelly

229    In the 1930s, anthropologist Caroline Tennant-Kelly conducted fieldwork at Burning Bridge and Wreck Bay Mission in New South Wales and at Cherbourg in south east Queensland where she spent four and a half months. Based on her work at the Cherbourg settlement, Tennant-Kelly published a map of tribal groups in central Queensland, depicted below:

230    Dr Martin expressed the opinion that, as the first professionally-trained anthropologist to conduct fieldwork in the region, Tennant-Kelly’s work is invaluable. Dr Martin noted, however, that Tennant-Kelly’s work dates from the 1930s, being 70 years after effective sovereignty in the 1860s. Further, Tennant-Kelly was working with people who had been dislocated from their traditional countries some 20 years prior to her research.

231    Dr Martin observed that Tennant-Kelly’s maps are consistent with prior ethnographic sources in the placement of “Khangalu” (number 9 on the above map) around Emerald. While her published map appears skewed in the placement of towns and slight variances can be noted between Tennant-Kelly’s unpublished sketch map (which depicts “Khangalu” at Emerald) and the published map (where the number for “Khangalu”, is slightly to the east of that town) the accompanying text of that 1935 publication directly associates “Khangalu” with Emerald.

232    Tennant-Kelly’s published map depicts “Kaingbul” and “Khararya” in close association with “Khangalu”. Tennant-Kelly also notes information from interviews with some of the ancestors of the claimants and other residents of Cherbourg which provide snippets of geographical information regarding the claim area and the surrounding region. These include:

(a)    In a typescript document, possibly part of a field work report with the heading “Contact has been made with the following tribes”, Tennant-Kelly documents a list of tribes and locations, including “Kung gul … Emerald”. In the same document she also observes:

I am taking down the boundaries of the different people. They remember them most clearly and it is useless to try and trip them up on their local geography. Rivers appear to have been the most popular boundary and each tribe know what land belonged to their neighbours on four sides.

(b)    In a document headed “Albert Holt – Bidjera”, Albert Holt provided Tennant-Kelly with information about the placement of both “Bidjera” and “Kangalu”:

The Bijera are on upper reaches of the Warrego across to Springsure. … Kangalu – Emerald to Springsure.

        Aggine Bone + Dolly Duggan are Kangalu people.

… Nogoa River is not populated but the Wadjibunji were reputed to go over there

(c)    Abraham Johnson (descendant of Hanny of Emerald) grouped Kangalu together with a number of other groups, which he suggested form some kind of nation. This document appears to suggest that Kangalu, Wierdi and Bararaga are associated with the Capella area and that these groups and the others mentioned above form a “Wribpid” or association, which he compared to the “British”. Tennant-Kelly records:

Burnaji 30 or 40 miles in bush from Clermont – Kangalu, Wierdi, Bararaga (Capella), Mian, Kaingbul (Sunflower Sonny)

Badjedi,

all Wribpid – like British …

Kangalu – Capella (C. Costello)

(d)    In another document, Abraham Johnson provided Tennant-Kelly with further information which clarifies this remark somewhat:

Wierdi – Clermont, Emerald, Bilyanda [Belyando],

Capella back to the desert, Jericho, up to Twin Hill and Ravenswood

Twin Hill – The Mian people join here

Ravenswood – The Birigubi people

Bilyanda – Kabila people

Capella – Baraga people

Emerald – the Kangalu

Clermont – the Wierdi

Jericho – The Kun Kai

These people, along with the Badjidi and the Burnaji together formed a nation like the British, the name for this being ‘Wribpid’

(e)    In another document headed “Kangalu”, material on group locations is provided from an unnamed informant:

Kangalu

Emerald to Duaringa. right to Rolleston. ….

To Springsure cd marry

Springsure to down Nogoa R. Wyjango. A hard quick lingo I don’t understand or marry. …

Emerald – Weriburi (Mrs Mack + Dunrobin) cd marry.

In with Kangalu is the Karangbul = No (talk heavier) + the lighter Kaingbul = No

Kangalu = No

These three ran together = you foll[ow] your fathers lingo but follow the grannie.

I am Kaingbul my wife is Kangalu. So my girls Kaingbul but follow Kangalu mother.

(f)    Another document, headed “Charlotte Costello”, contains the following information also directly relevant to the claim area:

Kungul –Emerald, Comet, Blackwater,

Bluff – Rockhampton…

Bunadji – Clermont, Emerald, Springsure (born here) (Flourbag informant)

(g)    In the same document, Tennant-Kelly cites Charlotte Costello as saying:

My father was Khangalu

My mother was Kyara (neighbours to Khangalu)

(h)    Tennant-Kelly further documents Charlotte Costello’s “run” as:

Emerald, Comet River, Blackwater, Dawson River (meet others here)

(i)    Harriet Mummins also provided information to Tennant-Kelly regarding Kangalu, although her focus seemed to be well east of the claim area:

Kangalu – Dawson R[iver] – Uringa [Duringa?] (Top of R[iver].)

(j)    Later in the same document, Mummins identified the following people whom she said were “also from here”:

– Sunny Sunflower,

Freda Hegarty – May Hegarty & Bruce

Mathews wife. Jack Bradly, Charlotte Costello

233    Dr Martin observed that the diversity and variety of these remarks reflects the fact that they are extracted from uncategorized fieldnotes rather than systematised published findings.

234    Dr Martin draws the following conclusions from Tennant-Kelly’s work:

(a)    Ganggalu people are associated with Emerald.

(b)    Ganggalu people are also associated with a number of locations around Emerald, with informants suggesting that “Kangalu” went from Emerald to Duaringa and Rolleston as well as to Springsure.

(c)    Informants during the 1930s appeared to recognise a variety of traditional forms of association between Ganggalu people and other people. The concept of “Wribpid” illustrates one such association, with this label appearing to be used to designate a range of related groups. Dr Martin opined that this fragmentary information supports the inference that an awareness of a broad regional society was traditional in this area.

(d)    Another fragment from Tennant-Kelly’s field notes also provides further evidence in relation to the existence of a “nation” or regional society encompassing Ganggalu and Garingbal. Dr Martin drew particular attention to the comment that “Kangalu”, “Karangbul”, and “Kaingbul” “ran together”. Dr Martin stated that, in his experience working with Aboriginal people around Australia, the expression “ran together” or “running together” indicates an association between different people, or in this case, groups.

235    Dr Martin recognised that Tennant-Kelly’s research was conducted at Cherbourg, away from the claim area, approximately 70 years after effective sovereignty, with people who had been dislocated from their traditional countries for at least 20 years. He further recognised that much of the information gathered from Tennant-Kelly arises from unpublished fieldnotes rather than systematised published findings.

Norman Tindale

236    Norman Tindale was an anthropologist who had a particular interest in physical anthropology and tribal mapping. He produced two Australia wide tribal maps and accompanying catalogues of tribes, the first in 1940 and the second in 1974. The maps relevant to the claim area are extracted in turn below.

237    Tindale’s tribal maps and accompanying catalogues of tribes were based on his own research as well as his synthesis of other authors’ findings. The data from Tindale’s associated materials including field journals, genealogies and personal data cards also provide useful information for this claim area.

238    According to Tindale’s 1940 and 1974 maps, the claim area is associated with the “tribal” groups “Kiari” and “Wangan”. Tindale’s 1940 map depicts “Ka:nulu” as occupying an area to the east of Kiari; in his 1974 map, this has become divided into two groups with the similar spelling Kanolu and Kangulu. Dr Martin observed that, in his 1974 map, Tindale interposed a dotted line between Konolu and Kangulu, indicating a less determinate boundary than the unbroken lines on his map.

239    During his 1938 work in the area, Tindale spoke with a number of people who identified as “Kangulu”, but he did not record anyone who identified as Kanolu, nor was any mention made of Kanolu territory by his informants. Dr Martin observed that, as a result, the basis on which Tindale defined his “Kanolu tribal area” is uncertain. It is possible that Tindale was drawing on Curr’s 1887 work. However, Tindale’s description does not correspond to the territory Curr associates with Kanolu (at the head of the Comet River), nor is there anything in Tindale’s notes to support the identification of “Kanolu” as a separate group. Dr Martin concluded that Tindale’s identification of “Kanolu” and “Kangulu” as separate “tribes” is most probably an error.

240    Tindale’s primary materials include his field journals, annotated genealogies and personal data cards on Aboriginal people that he prepared during the “Harvard Adelaide Expedition of 1938-1939”. Tindale visited Cherbourg and Woorabinda in 1938 as well as other places in Central Queensland to conduct interviews with Aboriginal people.

241    Tindale’s earliest reference to “Kangulu” is found in his journal from Brewarrina in New South Wales. Here his informant was Fred Johnson, a man who identified as “Waiŋgo”. While recording cultural details about that group, Tindale noted: “Tribes allied to Waiŋgo in Dawson River area are Kaŋgulu + Karainbal”.

242    Tindale’s genealogies and data cards from Woorabinda and Cherbourg also contain a number of references to people who identified themselves to Tindale as “Kangulu”. Twenty six data cards at Woorabinda and sixteen from Cherbourg contain references to “Kangulu”, making it the most widely recorded identity label for people from the region between Duaringa in the east and Springsure, Emerald and Clermont in the west. Dr Martin set out details of this data relating to the claim area and immediate surrounding areas in a table in his Revised Report.

243    Tindale placed the group “Kairi” in the general location of the Western Kangoulu claim area. Tindale’s catalogue entry for Kairi is brief:

Location: From the Great Dividing Range south of Springsure north to Capella; west to Drummond Range; east to Comet and upper Mackenzie (Nogoa) rivers

References: Middleton and Noble in Curr, 1887; Biddulph, 1900; Kelly, 1935; Tindale, 1940.

Alt.: Khararya ([‘kara] = no), Bimurraburra (horde in vicinity of Emerald); [‘mardi] = man.

244    Tindale’s primary data contains information about Kairi from a number of informants. They include:

(a)    John Tyson “Johnnie”, who Tindale records as being born at Springsure and that his father is ‘fb. Kairi and mother “FB Wadjaiygo Tr. E of Rolleston”;

(b)    Alf Tyson, who Tindale records as being at Springsure to father “John F.B. Clermont Q Kairi Tr.” and mother “May. F.B. Roma Qu. Ongabula Tr.”;

(c)    Alfred Tyson Jr. who is recorded as having been born at Duaringa to father Alf Tyson and mother “Gypsy F.B. Duaringa Kanalu. Tr”; and

(d)    Jessie Collins/Cotherstone gave Kairingbal and Airingbal as variations of the tribal name Kairi and termed the language Banabal.

245    The data card for Jessie Collins identifies both her and her mother as Kangulu and her father as a white man. Jessie’s birthplace is given as Gordon Downs and her mother’s as Emerald both of which are within the claim area.

246    The genealogy sheet for the Tysons also includes a number of statements about the distribution of tribal groups, including the following relevant information:

Kairi country ran fr[om]: Springsure to Clermont in olden days.

Kaŋulu country ran to Blackwater + Dingo as well as down to Banana.

Wajainŋgo tribe E of Rolleston same as Wadja + Wainjigo

247    In Cherbourg, Tindale also recorded two other people as Kairi;

(a)    Archie Sullivan, who is recorded as having a white father, but his mother, Annie Sullivan is described as ‘fb Kairi of Springsure’; and

(b)    Jack Bradley’s unnamed father is noted by Tindale as ‘Parnabal = Kairi’.

248    Dr Martin drew the following conclusions about the label “Kairi”:

(a)    Tindale’s primary data which records people from places such as Emerald as ‘Kangulu’, does not accord with his published maps which identifies this area as being ‘Kairi’;

(b)    ‘Kairi’ is only mentioned four times in Tindale’s data: 1) ‘Johnnie Tyson’ where ‘Wangan’ is crossed out and replaced with ‘Kairi’, 2) Archie Sullivan’s mother is identified as ‘fb Kairi of Springsure’, and 3) Jack Bradley’s unnamed father as ‘Parnabal = Kairi’;

(c)    the further mention of Kairi is from Jessie Collins/Cotherstone, who reportedly told Tindale ‘Kairi is the same as Kairiŋbal = Airiŋbal t. Jessie’.

249    Dr Martin says that, in his opinion, these references support the conclusion that a number of labels were used interchangeably and alternatively with the identity label “Kangulu” by Tindale’s informants. For example, Albert Huey told Tindale, “Kaŋgalu … is part of Karingbal”, while Jessie Collins/Cotherstone told him “Kairi is same as Kairiŋbal = Airiŋbal t. Jessie/ Jessie speaks Ban:abal of Capella -> Clermont/= part of the Karaiŋbal”. In Dr Martin’s opinion, these statements show that these labels (Kairi, Ganggalu and Karingbal) were used interchangeably by these informants. In Dr Martin’s opinion, there is an insufficient basis in Tindale’s research materials to infer that Kairi constituted a separate identity with rights in land and waters in the claim area.

Argues, Holmer and Breen

250    Dr Martin also addressed the findings of three linguists who conducted fieldwork in the region (or with Aboriginal people from the region in other settings) in the 1960s and 1970s. Dr Martin explained in detail the limitations of the work of E. F. Argues and Gavan Breen, which I accept. Accordingly, it is unnecessary to reproduce their observations. Of more relevance is the work of Nils Holmer who conducted fieldwork in Australia (including in Central Queensland) in 1970-1971 and who published this data in a book titled “Linguistic Survey of South-Eastern Queensland” in 1983.

251    Holmer identified ‘Gunggari’ as part of a broad linguistic group which he divided into a southern and northern subgroup (while identifying the limitations of such subgroupings). His southern subgroup consisted of ‘Gunggari’, ‘Bidjara’ and ‘Maragany’ and the northern subgroups included ‘Ganggalu’, ‘Wirri’, ‘Birri’ and ‘Ngawun’. Holmer associated ‘Gangulu’ informants with Springsure, Emerald, Duaringa, and the Dawson River, writing:

Within the southern subgroup, for instance, the Gunggari language is particularly associated with such names as Roma or Mitchell, Bidjara with such names as Springsure and Marganj with the Warrego river ….

Within the northern subgroup, Gangulu informants often hail from Springsure, Emerald, Duaringa or the Dawson river (the Woorabinda settlement, for instance, is to be considered as within the original Gangulu territory) the Wirri informants available are from Clermont, while Birri is to be localised around Bowen and Mackay or to places inland from these towns.

The traditional laws and customs acknowledged and observed by the society at sovereignty

252    Under this heading, Dr Martin’s Revised Report considered the available evidence concerning the laws and customs observed by the Aboriginal people in occupation of the claim area before European settlement.

253    At the outset, Dr Martin acknowledged that there is a paucity of (direct) evidence about the traditional laws and customs at effective sovereignty in the ethno-historical record for the claim area. As a result, Dr Martin’s opinions in this regard are based on inferences drawn from the limited information available about the claim area supplemented by information about the broader region of Central Queensland, and his understanding of Aboriginal law and custom across the continent. Dr Martin also had regard to the 21 May 2018 Joint Statement that he prepared with Dr de Rijke, Dr Gorring and Mr McCaul in relation to the GNP, Western Kangoulu and Wadja native title claims.

A classificatory kinship system

254    Dr Martin observed that there is some material regarding the traditional kinship system of the claim area. For example, there is data in the ethno-historical record relating to the existence of a marriage system connected in a complex way with mythology and totemism, with some discussion of these matters in Howitt (1996) for what he calls the “Wakelbura”.

255    Dr Martin indicates, however, that his understanding of this system largely comes from Tennant-Kelly’s work from the 1930s at Cherbourg, some 70 years after effective sovereignty. Tennant-Kelly recorded kinship terms from Charlotte Costello and Harriet Mummins, both recorded as “Kangalu” informants. Charlotte Costello provided the same name for father (yabo), as for father’s brother; the same name for father’s father (bulu), as for father’s father’s brothers; the same name for father’s mother (koko), as for father’s mother’s sister; and the same name for father’s father’s sister (kami), as for father’s mother’s brother’s wife. Dr Martin noted that there are some discrepancies in the information provided to Tennant-Kelly by Harriett Mummins. For example, the name for father’s father is given as both koko and kathinga, which does not equate with bulu given by Charlotte Costello. The name for father’s sister (bibi) is consistent in both records and is additionally given by Harriet Mummins as the name for mother’s brother’s wife.

256    Tennant-Kelly also recorded kinship relationship information from Charlotte Costello under the title “Warminda”. Tennant-Kelly’s notes are reproduced below:

The children of all my Bulu (Grandfather) are Warminda. I do not go near them. I only speak to the children of my own close up Bulu (f. and f. mother). My daughter’s husband is my natch warminda     

(really own)

I don’t talk to him.

Kyu is Banbaci woman, her b[rother] marries my d[aughter].

Kyu is warminda – I never see face [of] my Bulu’s d[aughter].

My son’s wife calls me Bibi

I call her Khandu.

257    Dr Martin stated that, in his opinion, drawing on these sources as well as his earlier 21 May 2018 Joint Statement, a classificatory kinship system likely obtained in the claim area and the broader regional society at sovereignty, involving complex, reciprocal as well as asymmetrical relationships and obligations amongst different categories of persons.

A form of social organisation encompassing two named moieties and four named sections

258    There are a number of sources which deal with the Ganggalu moiety system. These include references recorded by commentators in the 1890s, and also by Tennant-Kelly and Tindale during the 1930s, for example:

(a)    Giroonbah provided details of section names, marriage rules and totems among the “Kong-oo-loo” to whom he attributes the moieties “Yung-ngooroo” which includes sections “Bunyah(gun) and Tarbine(ngun)”; and “Woot-thoor-oo” which includes sections “Kiya-rah(ngun) and Bun-joor(gun)”.

(b)    Curr’s informants for the Bimuraburra whose country Curr identified as twenty-five miles north of Springsure (i.e. within the claim area) also provided information about the different marriage classes in the region. Dr Martin presented the information in the following table:

(c)    On information provided by Muirhead, Howitt also recorded sections, which he records as Kugilla, banbe, wungo, and obu.

(d)    Tennant-Kelly also captured information about the Ganggalu moiety system in her work at Cherbourg indicating that this system was still able to be elicited at this time:

Khangalu

Moieties are Wuturu & Yangaru

Wuturu is Wungo & Kupuru

Yangaru is Banbari & Kulgila

…

Words for the sections vary here to

Kyara – Wungo

Banyar – Banbari

Banju – Kupuru

Ulkila – Kulgila

259    Based on this information Dr Martin inferred that a four section system was in place amongst the Ganggalu at the time of sovereignty, with two named moieties. Dr Martin depicts the relevant terms for moieties and sections for Ganngalu people as follows:

An understanding of totemism

260    Related to the above system, Dr Martin also referred to an understanding of totemism, including an association between totemism and kinship as well as personal totems called yuris.

261    Dr Martin referred to A. P. Elkin’s description of totemism as a concept that influences Aboriginal “social groupings and mythologies, inspires their rituals and links them to the past … unites them with nature’s activities and species in a bond of mutual life-giving … a relationship between a person or group of persons and (for example) a natural object or species, as part of nature”. Elkin described totemism as common across the Australian continent in his classic study, “Studies in Australian Totemism: Sub-section, section and moiety totemism”. Elkin’s discussion refers to the findings of a range of writers familiar with Central Queensland, including Curr’s discussion of the Wakelbura to support this discussion, as well as Howitt (plus Walter Roth and Edward Palmer).

262    Tennant-Kelly stated that, despite the various prohibitions and misunderstandings regarding the “tribal customs” of her Aboriginal informants at Cherbourg, totemism was “the most important and the most living part of their old life”. She documented quite detailed knowledge from Abraham Johnson (who was described by Tennant-Kelly as “Wierdi” from “Clermont district”), as well as some information from Harriet Mummins (a Ganggalu person).

263    During an interview with Abraham Johnson, Tennant-Kelly documented information provided by him regarding totems:

I am sugar Bag – I shd [should] be marrying eaglehawk.

Sug. Bag is an insect – an eaglehawk is meat and has wings.

If my father is possum my wife is possum.

Dhabingbura                 Mapingbura

(yangaru)                (wuturu)

S. Turkey                 Emu

S. Goanna                 S. Bag

Porcupine                 Possum

Kangaroo                 Plain Turkey

Eaglehawk                 Black Snake

Lizard                     C. Snake (light color).

C. Snake

I am mapinghura – my sister marries outside to lingo – so my nephew speaks a foreign lingo but – he still mapin with me – my [indecipherable] in Dhabingbura. I know Oscar is mapin because he tells me his skin is Emu.

I must not hunt the totem of the other side.

264    Harriet Mummins also indicated to Tennant-Kelly that:

Kulgila marries Kupuru

Wungo marries Baubari

Kulgilu – Scrub Turkey – C[arpet] Snake

Kupuru – Emu Red Kangaroo

Wungo – Sand Goanna

Baubari – Black Sugar bag

265    In a document headed “Notes on Totemism – Kangalu”, Tennant-Kelly provided the following details from an unnamed informant:

Word for totem – Euri (meat).

WUTURU             YENGARU

Big Eel (Dhurulu).         Brigalow (Kapela).

Big Leaf Lily (Kumi).         Grub (in the Brigalow roots).

(Dharbari).

S. Turkey.             A prickly shrub (Munguna).

Porcupine.             Emu.

266    Dr Martin opines that, taken together, these fieldnotes indicate an association between totemism and the moiety and section system. Tennant-Kelly went on to publish lists of totems associated with each moiety in her 1934 journal article. Dr Martin observed that while Tennant-Kelly does not explicitly define totemism in her publication, she provides some insight into laws and customs relating to totemism for Ganggalu people and others across the society. For example, Tennant-Kelly states that “importance was attached to dreams in which the totemic species appeared”. She describes the example of a man who accidentally killed his totem, a carpet snake. This person “became very sick and thin, and only recovered after a woman relative dreamed of four snakes, of which one was not the colouring and marking of the particular type which belonged to the man in question”. As a result, this man is said to have “recovered quickly”. Tennant-Kelly also records that “[r]ight through the area there appears to have been a taboo on eating one’s totem”. She notes that “[s]ometimes the entire tribe refrained from eating a certain animal or bird”, and further that “[i]t was considered a breach of good form to kill the totem of a person in his presence”.

267    Based on these data, and on his 21 May 2018 Joint Statement, Dr Martin concluded that totemism was probably a feature of law and custom in the claim area at the time of sovereignty.

An understanding of mythology

268    Dr Martin refers to an understanding of mythology, including spiritual forces inhering in land and waters, among the regional society at the time of sovereignty. He observed that while there is limited information in the ethno-historical record about mythology specifically associated with the claim area, Australian anthropology indicates the very wide distribution of mythological beliefs amongst Aboriginal people across the continent. For example, Radcliffe-Brown’s classic study “The Rainbow-Serpent Myth of Australia” states that “There is found in widely separated parts of Australia a belief in a huge serpent which lives in certain pools or waterholes”. Dr Martin drew upon Tennant-Kelly in identifying this aspect of law and custom, as well as ethnography from the rest of the continent identifying the very wide distribution of such beliefs.

269    In a document headed “Rainbow Serpent Legends Queensland”, Tennant-Kelly documents a number of versions of the Rainbow Serpent Legend including Kuam (Mitchell), Kalali (Fraser Island), Irendey (Diamantina River), and Wiedi (Clermont). The closest rendition occurring on country near the claim area is from the Wiedi (Clermont), and connects the Rainbow Serpent with acquiring knowledge:

There were men fishing and two of them had no net. No one would lend them a net so they took a sapling and made it into a snake. Then went way up the river and put the snake into the water. It came alive and it sent a huge wave up the river and drowned all the people who were fishing. This is the Rainbow snake, we call Mundungara. These two fellers they turn into peewees.

When we make clever men we cover them all over in fat that has been saved up for long time. The smell brings out the snake when they go alongside the water hole where he lives. He takes them into the water and keeps them three days – all the time asking them questions. Only the clever ones come back + the other are killed by the snake.

270    Other versions of this myth recorded by Tennant-Kelly each tell a slightly different story. However, all involve the creation or movement of water, the fact that the Rainbow Serpent “lived” in a waterhole, that “smell” of fat attracts and “brings out” the snake (suggesting a conceptual separation of things from the land and water, with the fat of land animals seeming to aggravate this creature in Tennant-Kelly’s accounts), and that waterholes are dangerous for that reason. Dr Martin states that these associations of the Rainbow Serpent with water are consistent with his training, study and experience about this myth and its practically universal incidence across the continent. He infers from the information provided by Tennant-Kelly that the Rainbow Serpent was significant to groups across much of south-east and central Queensland including the claim area. In oral testimony, Dr Martin stated his opinion that it is likely that Ganggalu people held a version of this myth.

271    Dr Martin observed that information about other aspects of traditional mythology is absent from the ethno-historical record about the claim area. He observed however, that the anthropological literature dealing with mythology throughout the continent is consistent in detailing a range of other kinds of spiritual forces inhering in land and waters. Dr Martin opines that, while details are limited in relation to the Western Kangoulu claim area, it would be anomalous for these mythological narratives and understanding of spiritual forces not to be found in this area. Information which exists in the literature is typically limited in detail and often not specifically linked to a particular place. The anthropological literature shows that broader mythological beliefs are likewise typical of Aboriginal religions across the continent. Such beliefs have been consistently described in both the early as well as the more contemporary anthropological and ethno-historical literature as well as the more contemporary anthropological literature.

Inheritance of identity

272    Dr Martin also referred to 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. He observed that there is no information on Ganggalu inheritance of identity at the time of effective sovereignty; however, anthropological research from around the continent has generally identified what Professor Les Hiatt (1984) describes as “the adaptive and dynamic character of man-land relationships’ in traditional society. In Hiatt’s review of research completed in the 1970s and 1980s, he finds individuals accessing, in the traditional social system of law and custom, the countries of all four of their grandparents, with each right of access being “potentially convertible to a right of tenure”. Hiatt’s work confirms “the right variety of criteria” used to legitimise access and claims to land and waters, including “birthplace, conception place, previous occupation, father’s deathplace, mythological links, as well as descent along various pathways”.

273    Dr Martin cites snippets of information from the 1930s from Tennant-Kelly and Tindale that suggest how identity was traditionally acquired by Ganggalu people:

(a)    Charlotte Costello, identified by Tennant-Kelly as Kangalu, states that “My father was Khangalu. My mother was Kyara (neighbours to Khangalu)”;

(b)    an unnamed informant to Tennant-Kelly states that “I am Kaingbul my wife is Kangalu. So my girls Kaingbul but follow Kangalu mother”;

(c)    the data card for Jessie Collins identifies both her and her mother as Kangulu and her father as a white man;

(d)    Jack Bradley’s mother is documented as “F.B. of Emerald Kanulu” and his father as “Negro no particulars” in Tindale’s Cherbourg Genealogy Sheet (N1360). However, on a later page of the same data card his mother is documented as “F.B. of Emerald Qu. Kangulu” and “Kangulu” is given as Jack’s tribe or group.

(e)    Polly McEvoy is identified on Tindale’s Cherbourg Genealogy Sheet (no 69), as “fb, Kangulu, Clermont’. Her husband is simply noted as “white man”. Polly’s daughter Jessie is identified as Kangulu.

274    Dr Martin expressed the opinion that this information suggests that, at least by the 1930s, it was common for children to inherit Ganggalu identity from either their fathers or their mothers, with examples above indicating that where the informant’s father is Ganggalu, their children are also Ganggalu, or as implied by the unnamed informant in (b) above, that children could inherit their language-named identity from either their father or their mother, with this informant telling Tennant-Kelly that his children “follow Kangalu mother”.

275    Dr Martin stated that he can also conclude from this that when an informant’s father is a named or unnamed “white man”, the children of those unions inherit their identity from their mothers. This sort of change has been discussed generally by the anthropologist Peter Sutton whereby matrifiliation and other forms of connection became important principles informing relations with country as disruption to previously followed marriage rules, non-Aboriginal parentage and other social changes occurred.

276    Dr Martin inferred from this information that cognatic descent was common in the 1930s. However, in his opinion, cognatic descent is likely to represent an adaptation from a system with a patrilineal bias in which children “followed” their father in inheriting rights in land and waters. Dr Martin stated that, while there is no data to offer a definitive opinion on this matter, he inferred that there was probably a clan estate system in operation in the claim area at the time of sovereignty, with children inheriting country through their fathers.

277    In respect of adoption, Dr Martin stated in his Supplementary Report that adoption as a basis for holding native title is well-established in the anthropological literature. Dr Martin cites Kingsley Palmer’s statement that adoption requires the recognition of filiation via the transformation of a baby or a child into a son or a daughter, which entails ‘community acceptance … based upon a system of customary principles’. Dr Martin observed that there is no known information about the adoption of children by Ganggalu people in the early literature. However, Tennant-Kelly speaks at some length about what she called the “step-children” of people at Cherbourg from her 1930s fieldwork. She notes that what Cherbourg administrators called an “illegitimate” child had no expression in Aboriginal thought. As she puts the matter, when a man married a girl who already had children the “husband fails entirely to discriminate between these and his ‘own’ children … The kinship term indicates this very clearly. All the children … are called by the name for child”. Dr Martin inferred from this information, and the review provided by Hiatt (1984), that the concept of adoption was also part of the traditional system at sovereignty.

An understanding of spirits in the landscape

278    Another custom that Dr Martin referred to is an understanding of spirits in the landscape, including appropriate ways of managing spiritual presence. He observed that there is some data regarding Aboriginal understanding of spirits in the landscape in the early years of colonisation, including ways in which Aboriginal people from the claim area managed the presence of such things (noting that this overlaps with the matter of mythology, addressed separately).

279    Among other materials, Dr Martin observed that Tennant-Kelly’s documents include notes relating to spirits in the landscape. In a document titled “Notes of the retention of ritual and customs among Missionary natives”, Tennant-Kelly records that three unnamed women had told her that upon the death of an old woman “they had seen her walking about the hospital grounds. It was explained that she could not rest because her relatives had not destroyed her personal property – a customary matter in native life”.

280    Dr Martin also cited a historical source from a pastoralist named Hawkins, who wrote about Aboriginal beliefs around the district of Bogantungan (which is within the claim area). In his memoirs he records:

At night, round the camp fires, we were not allowed to swing firestocks about as kids are fond of doing. This attracted “Goori-gooris”. These mythical creatures were not really dangerous, but too many of them about might bring their big boss, the Eungie. The Eungie was pretty dangerous. No-one knew what he looked like but one of his tricks was to push you down into the ground. In case of an attack by a Eungie, if one could only get to a Supplejack tree you were quite safe, all other trees could be pulled down, but Supplejack is very strong. However, we had no trouble in keeping “Goori-gooris” away by lighting Cypress Pine bark and letting the resinous fumes float around on the night air.

281    Based on sources including Tennant-Kelly and Hawkins, Dr Martin inferred that Aboriginal people traditionally believed in spirits and ghosts relating to deceased persons, as well as a variety of other anthropomorphic creatures. These are identified in Hawkins’ memoir by the names “Goori-gooris”, and “Eungie”, however, he infers that a variety of types of spirits and other names for spirits was probably part of the traditional law and custom of the claim area and society at sovereignty.

Male and female rituals including initiation ceremonies

282    Dr Martin observed that there is no specific information regarding male and female rituals including initiation ceremonies occurring in the claim area at the time of effective sovereignty. However, there is extensive discussion of these matters in the literature for neighbouring regions.

283    Initiation ceremonies, or what are commonly called “bora” ceremonies in the literature for Queensland, are well documented for the broader region. R.H. Mathews, who published about the claim area but appears not to have conducted fieldwork there, writes about this ceremony in southeast Queensland/northern New South Wales:

The Bora is a great educational institution for the admission of the youths of the tribes to the privileges, duties and obligations of manhood, and is the most important ceremony practised by the aborigines. The youths who are initiated, are carefully instructed by the old men in their traditions - their moral and religious codes – and the laws of consanguinity and intermarriage. The ceremonies are intended to strengthen the authority of the older men over the younger, and to impress in an indelible manner those rules of conduct which form the moral law of the tribe.

284    Dr Martin also cites general discussion of initiation ceremonies (not specific to the claim area) by Elkin and Howitt.

285    Further, of more direct relevance to the claim area, Dr Martin cites an observation by Howitt that:

[t]he strength of the bonds connecting the Wakelbura and the tribes farther out may be estimated by the following particulars. All the tribes, sub-tribes, or hordes mentioned, as the case might be, and with others still more distant, as for instance the Mutabura from the Upper Thomson River, did not come to the Wakelbura ceremonies in a body, nor did the Yankibura, a still more distant tribe near Aramac. A few of them accompanied the Kumbukabura, and when the Wakelbura went to the Mutabura or the Yankibura ceremonies, it was only a few of them who did so, in company with Auanbura or Kumbukabura people. The same applies to all the distant tribes, which had some relations with the Wakelbura, and visited them. The rule was that the nearer tribe came in a body, and the more distant were represented by a few members, who accompanied some other friendly tribe.

286    Dr Martin expressed the opinion that this discussion indicates the inter-tribal nature of such ceremonies, and their significance in terms of alliance-making across broad distances between associated peoples. While descriptions of what occurred during such ceremonies is not explicitly discussed in relation to the claim area in the ethno-historical and anthropological literature, based on his training, study and experience, such ceremonies probably involved education and rites of passage, particularly for young men, as well as knowledge-sharing, trade and exchange.

287    Dr Martin further observed that there is also some material evidence of stone arrangements which may have been associated with such ceremonies. There appears to have been a single stone circle recorded near Capella and a large stone arrangement complex recorded at Fairhill Station which is situated 5km east of the current claim area. The Fairhill stone arrangement was first recorded in 1947.

Recognition of gender specific sites

288    Dr Martin stated that the ethnographic and historical record was silent on the matter of gender specific sites within the claim area at the time of sovereignty. However, the proposition that men and women had their own religious beliefs and practices, some of which were restricted along gender lines, is uncontroversial in anthropology. The anthropological literature from the broader continent discusses women’s rituals and beliefs included those relating to puberty, childbirth and menstruation, as well as the direction and pursuit of relationships with men. Dr Martin observes that restrictions relating to men’s knowledge are so widely documented as to be almost ubiquitous in the ethnographic literature. Tennant-Kelly does not explicitly address this matter in her publications; however, her data refers repeatedly to men and specifically old men and their standing in relation to this matter.

Funerary practices

289    Dr Martin stated that he had not identified any documentation regarding Ganggalu funerary practices at the time of effective sovereignty. He noted, however, that Howitt recorded a detailed account of “Wakelbura” burial practices in the early 1900s:

When a man died, the body was placed on a frame, lying on bark and covered with branches, all of which must be of a tree of the same class and sub-class as that to which the deceased belonged. For instance, if he were a Banbe man, then the wood, bark, and branches would be of the Broad-leaf Box-tree, …[t]his being done, the women wailed, and cut themselves with stone knives, and at later times with broken glass … [h]aving ascertained who had killed him, they take the body down from the stage, and breaking it up with a tomahawk, the pieces are enveloped with twigs, and enclosed with bark stripped from a sapling, and fastened by sewing opossum skin around it. The mother or sister of the deceased takes charge of it, and sometime the remains are carried about for as long as eighteen months, until the matter has been settled by the offender being punished. Then the remains, bark covering and all, are put into some hollow tree in the country of the deceased. All the trees at the place are ring-barked where the remains are deposited, and boughs are placed in their folks.

290    From this extract, Dr Martin inferred that elaborate rituals connected with death and burial were carried out in the claim area at the time of Howitt’s research, some 40 years after effective sovereignty. As the above quotation indicates, these rituals were connected to the moiety and section system operating in the claim area at the time of sovereignty.

291    Dr Martin also cited further information in Tennant-Kelly’s notes relating to death and burials, for example:

(a)    In a document headed “Notes on the retention of ritual and customs among missionised natives”, Tennant-Kelly notes:

Among the remnants of ritual retained the most dominant were those of burial and mourning … The actual funeral ceremony is conducted by the missionary in the orthodox manner, but before it begins the old ritual wailing is carried on with gusto. Sometimes a fire is furtively lighted so that the ceremonial smoke may play its part, but all this is done as quietly as possible because of missionary disapproval.

(b)    In a paper written in 1944, Tennant-Kelly elaborates on the funerary processes:

At death the natives are anxious to follow the “old rule” but ritual fighting and gashing of the mourners’ bodies is now forbidden by the Administration. In addition the missionary frowns upon the painting of face and arms with clay and also wailing. Thus, bereft of all that a funeral implies, the natives of reserve A (Queensland) wait until sunset, when the missionaries retire from the reserve, and then wail until the next morning. Clay is hastily painted on at night and washed off before the missionary returns in the morning … At the funeral of a young married man (initiated) his father walked ahead of the coffin, calling upon the totemic ancestors; now waving his arm in imitation of his own eaglehawk totem, now drawing patterns in the sand in imitation of the deceased’s totem, the scrub turkey … It was a very hot day, but nearby an old man had lit a fire. During the day the smoke drifted gently across the coffin, and at times almost obscured the relatives from view. The missionary was quite unaware of the significance of this. Actually the smoke was to ensure that the spirit would not follow the relatives back to the reserve but would go straight up.

292    From these sources in Tennant-Kelly, and the other data reviewed above, Dr Martin inferred that funerary practices relating to the claim area and the broader region at the time of effective sovereignty probably included such things as: the lighting of fires; the creation and use of smoke; the painting of the face and arms with clay; wailing by the bereaved; as well as a complex relation to mythology and totemism.

An understanding of sorcery and traditional healing

293    Dr Martin observed that there is a lack of sources which attest to the understanding of sorcery and traditional healing in the claim area and adjoining regions at the time of effective sovereignty. He observed that there is, however, data in the historical record about these matters. For example, there was a case in November 1922, involving four Aboriginal men at Cherbourg, being Peter Clark, Billy Dilbin, Philip O'Brien, and Billy Brown, who were charged with the murder of another Aboriginal man, George Tyson. Although initially stating that they had murdered Tyson because he had wanted “to go” with O’Brien’s wife (The Courier, 4 December 1922, p 4), Billy Dilbin said later “that he had set upon Tyson because he pointed the death bone at his wife, and she died a couple of months previous” (Western Star and Roma Advertiser, Toowoomba, 9 December 1922, p 7). Dr Martin also referred to an account about Bogantungan by Morris Hawkins, who gives his birthdate as 1884, and claims to be writing of his childhood. In this document, which was not published until the 1960s, Hawkins recalls Aboriginal people around Bogantungan being afraid of what he called “bone pointing”:

To suggest to one who was not feeling very well that perhaps a bone had been pointed at him, generally meant that it took quite a lot of persuasion to make him keep on living. I think the very old men knew better, most of them knew a sure cure, they had too, faith healing of course.

294    Tennant-Kelly also provided information about a belief in “clever men” at Cherbourg in the 1930s. However, in her 1944 publication, she explains that “[n]ot every group had its own ‘clever man’, so the three ‘clever men’ on the reserve now act for the whole community”. Dr Martin observed that Tennant-Kelly’s work seemed to associate fear of such matters more particularly with Aboriginal people from the north; however, he inferred that an understanding of sorcery and traditional healing was probably also a feature of the laws and customs of the regional society at sovereignty.

An embodied relationship between people and their lands and waters

295    Dr Martin stated that while there is a lack of information for the claim area, he is of the view that an enduring and deep-seated spiritual relationship with the land was a feature of traditional laws and customs in the claim area. Dr Martin observed that this relationship between people and their country has been described by a range of anthropologists. For example, Professor Deborah Bird Rose states:

[Aboriginal] [p]eople talk about country in the same way that they would talk about a person: they speak to country, sing to country, visit country, worry about country, feel sorry for country, and long for country…. [C]ountry is a living entity with a yesterday, today and tomorrow, with a consciousness, and a will toward life.

296    Dr Martin observed that this has also been described in the literature as “embodied relatedness”. Writing of the northwest Kimberley region of Western Australia, Dr Katie Glaskin characterizes this as “an ontology”. She writes:

[It is] … derived from a cosmology in which ancestral beings, their traces, and the country in which these are left have equivalence, in the same way that detached parts of a person’s body (such as hair) and incorporeal elements (such as a shadow, a name, or an image) do. This embodied relationality encompasses not just people, but places, species, and ancestral beings; it is a relationship between persons and places regarded as consubstantial, and that has consequences for how people, and people and country, are linked through space and time.

A variety of responsibilities to manage and protect the land and waters

297    Dr Martin observed that there is a lack of information about the variety of responsibilities to manage and protect the land and waters of the claim area in the literature relating to the time of effective sovereignty. There is some data in Tennant-Kelly suggesting that these responsibilities may have included means of ritual “increase” of species, which Tennant-Kelly also discussed in relation to the Aboriginal English words “to work” or “enact[] the rites for increase ceremonies on a certain stretch of country”. There are also some references in Tennant-Kelly to the fact that totemism was connected to managing species’ availability. For example, Tennant-Kelly states that “society takes precaution” to protect itself from incestuous marriages of those in common totemic grouping. She describes this as “prompted by fear of the totemic ancestors and the withdrawal of their favour in the form of food”, indicating further support for Dr Martin’s understanding of these features as aspects of law and custom across the claim area. Dr Martin stated that he is of the view that personal knowledge of the country wherein people exercised rights and interests is the almost inevitable consequence of Aboriginal people’s traditional relationships with place and their subsistence economy dependent on bush resources and techniques to exploit them.

Traditional rights and interests in land and waters at sovereignty

298    In his Revised Report, Dr Martin expressed the opinion that it is reasonable to infer that the forebears of the Ganggalu people held extensive rights in the claim area at sovereignty according to the traditional laws and customs operating across the regional society that he described. Dr Martin observed that the early ethno-historical and anthropological literature from the claim area, the broader region, and the continent of Australia, is consistent in indicating that such rights included rights to regulate access to others, as well as rights to exploit resources insofar as such exploitation was consistent with local laws and customs.

299    In his Supplementary Report, Dr Martin observed that the anthropological literature indicates that, at sovereignty, the claim area was occupied by patrilineal local descent groups. The literature indicates further that these local groups were typically referred to in local languages via the suffix ‘-bara/-burra/-bora[-bura]’ meaning ‘of’ or ‘belonging to’ (referring to the work of Howitt, Roth and Mathews). Dr Martin noted that Flowers wrote that each group had its own name, which usually ended in ‘bura’, which means ‘men of’. Drawing on information from Flowers and a number of other correspondents, Howitt described these local groups as follows:

As in all cases they were composed of lesser groups, each occupying its own area of hunting and food ground. The still smaller groups were little more than undivided families consisting of several generations, for instance of grandparents, children and grandchildren occupying areas of about 10 miles radius. A number of such families hunted over the same area, and the whole community attended the Bora initiation ceremonies and went to the Bunya festivals

300    Dr Martin noted that Howitt’s research identifies a number of these named groups around the Western Kangoulu claim area, including the ‘Bithelbura’, ‘Auanbura’ and ‘Wakelbura’. Howitt’s informant J. C. Muirhead reported that ‘when the Bithelbura tribe, who lived north-east of the Auanbura, died out the latter took their country’, suggesting the ‘Auanbura’ local group succeeded to the estate of the Bithelbura local group, presumably after colonisation.

Findings that can be made about the Aboriginal people in occupation of the claim area before European settlement

301    As noted in the introduction to this section, the applicant is not required to prove the characteristics and features of the Aboriginal people in occupation of the claim area before European settlement at any prescribed level of detail.

302    In the statement of agreed facts, the applicant and the State agreed the following facts about the Aboriginal people in occupation of the claim area before European settlement:

At sovereignty and at effective sovereignty, Aboriginal people were in occupation of the claim area who were likely united in and by their acknowledgment and observance of a shared system of laws and customs, which likely included the following:

(a)     an understanding of the mythology of the claim area, including the spiritual forces inherent in land and waters of the claim area;

(b)     an understanding of spirits in the landscape, including appropriate ways of managing spiritual presence;

(c)     an embodied relationship between people and their land and waters;

(d)     inalienability of rights in land and waters;

(e)     a system of inheritance of identity and rights in land through different genealogical links, including adoption;

(f)     a variety of responsibilities to manage and protect the land and waters;

(g)     customary use of natural resources;

(h)     recognition of gender specific and other significant sites;

(i)     a classificatory kinship system;

(j)     a system of authority emphasising the role of senior people;

(k)     funerary practices; and

(l)     totemism as an association between totemism and kinship as well as personal totems.

303    In my view, those agreed facts are consistent with and supported by Dr Martin’s evidence outlined above, and should be accepted.

304    The statement of agreed facts does not identify the Aboriginal people in occupation of the claim area before European settlement by name and does not include any statements about the relationship of those people with neighbouring people. At the time of the trial of the Separate Questions, a significant issue concerned the question whether the Aboriginal people who occupied the claim area at sovereignty were Ganggalu and whether they were part of a “broader Ganggalu regional society”. That question had relevance to the identification of the claim group as, in effect, a sub-group of the “broader Ganggalu regional society”. It is apparent from the statement of agreed facts that the applicant and the State do not consider that it is necessary to resolve that issue for the purposes of answering the Separate Questions.

305    Notwithstanding the position now taken by the parties in the statement of agreed facts, in my view there is utility in explaining the development in Dr Martin’s opinion with respect to the identification of the Aboriginal people who occupied the claim area at sovereignty, resulting from additional research undertaken by Dr Martin. The development was acknowledged by Dr Martin and is evident from the opinions expressed in his Revised Report, in his oral testimony and in his Further Supplementary Report. A full understanding of the opinions expressed by Dr Martin provides an appropriate context in which to understand the facts that have been agreed between the applicant and the State and the basis for answering the Separate Questions.

Dr Martin’s Revised Report and Supplementary Report

306    In his Revised Report, Dr Martin noted that Ganggalu people have been identified by a variety of names in the ethnographic and historical literature: as “Kanoloo” and “Kaangooloo” by Curr (1887); as “Kong-oo-loo” by Giroonbah (1895); as “Kang-oo-loo” by Mathews (1898); as “Kongulu” by Howitt (1996); as “Khangalu”, “Kung gul” and “Kangalu” by Tennant-Kelly (1934); and as “Kangulu” by Tindale (1938). He observed that the various iterations of the name ‘Ganggalu’ were a significant early identification marker of Aboriginal people within and around the claim area. Dr Martin also acknowledged that various other named groups also appear in or around the claim area such as Bithelbura and Wakelbura (Howitt 1904) and Kairi (Tindale 1940, 1974). Dr Martin expressed the view that there are reasonable grounds to suggest that, at sovereignty, other Aboriginal peoples formed part of a “broader regional society” that included Ganggalu people. While there is evidence pointing to broad regional associations, he considered that the strongest evidence in relation to a regional society encompassed a narrower group of people including the Ganggalu, Garingbal and Wadja. In that regard, Dr Martin referred to the information available from the work and records of Curr, Tennant-Kelly and Tindale in particular.

307    Dr Martin expressed the opinion that it is not possible to reliably reconstruct boundaries between members of the regional society from the data presented in early researchers’ work. While the boundaries between different groups within this regional society, and the geographical extent of this regional society, are not identified precisely, in Dr Martin’s opinion there are grounds for inferring that the area covered by the regional society included parts of the Great Dividing Range in the east of the claim area and the Expedition Range in the west and parts of major rivers and watercourses across the region such as (moving east to west): the lower Dawson River, lower Comet River, McKenzie River, and the lower Nogoa River. Dr Martin’s overall conclusion was that, while there is insufficient evidence in the foundation ethnography to offer a reliable opinion on boundaries between the groups within the regional society, the regional society encompassed the Western Kangoulu claim area as well as other areas.

308    In reaching these conclusions, Dr Martin noted that some evidence indicated the existence of a much broader regional society encompassing other named Aboriginal groups beyond the Ganggalu, Garingbal and Wadja peoples. This evidence is indicative of a regional society extending as far as the boundaries of the Fitzroy River basin. In this regard, Dr Martin cited certain of Tennant-Kelly’s findings, including her fieldnotes from interviews with an informant, Abraham Johnson, at Cherbourg regarding the relation between a number of Aboriginal groups across the area who he explained as forming “a nation like the British, the name for this being ‘Wribpid’”. Other notes of Tennant-Kelly suggest that a number of neighbouring groups interacted ceremonially and that there were widespread and far-reaching social networks in the region based on the existence of shared laws and customs and joint participation of ritual life that was likely to have also included the forebears of Western Kangoulu people.

309    With respect to rights and interests in land, Dr Martin expressed the opinion in his Supplementary Report that, at sovereignty, the claim area was occupied by patrilineal local descent groups who were typically referred to in local languages with the use of the suffix ‘-bara/-burra/-bora[-bura]’ meaning ‘of’ or ‘belonging to’. Each such group occupied its own local areas within the broader area occupied by the regional society.

Oral testimony at trial

310    In his oral testimony at trial, Dr Martin explained that, by his use of the concept of a “regional society”, he sought to express that certain commonalities of law and custom were shared by the Ganggalu, Wadja and Garingbal people. He stated, however, that it had always been his view that the “core of the society and the core laws and customs that unite people” were held by the Ganggalu peoples.

311    Dr Martin acknowledged that the ethno-historical evidence was complex, but that in his opinion the evidence supports a conclusion that there existed a society with Ganggalu people at the centre or at the core, sharing law and custom, language, and identity, but where Garingbal and Wadja people were at the edge of that society also sharing substantial law and custom with Ganggalu people.

Further Supplementary Report

312    In his Further Supplementary Report, Dr Martin further clarified his earlier use of the term “regional society”, although somewhat unhelpfully introduced the further expressions “associative society” and “core society”.

313    Dr Martin explained that he used the term “associative society” to describe a society comprising neighbouring groups with similar or the same laws and customs who perceive a commonality and unity amongst themselves as a group or community, but who can also differentiate themselves as a smaller or core group on various bases. Dr Martin further explained that he used the term “core society” to describe smaller groups of persons, within the associative society, who acknowledge and observe a common normative system of traditional laws and customs and perceive themselves to share the same identity.

314    Dr Martin stated:

In my opinion, in this matter, the 'associative society' is comprised of members of the Western Kangoulu and Gaangalu Nation people claim groups across the area in which the Ganggalu language was spoken at colonisation (noting that all the forebears of the Gaangalu Nation people may not be encompassed in this description). This area, in my opinion, extended from the Drummond Range and the headwaters of Theresa and Sandy Creeks in the west and north-west to Peak Range in the north and Cullin-La-Ringo and (probably) Springsure in the south, encompassing Emerald, then extending east to (at least) the Dawson River to encompass Blackwater, Dingo, and Duaringa, and probably further east beyond that to encompass Baralaba and the areas of Banana and Mount Spencer but not Mount Morgan, Biloela and Thangool …

315    Dr Martin expressed the opinion that the Gaangalu/Kangoulu language and identity was embedded in country by ancestral beings in the mythological era of the Dreaming, and was a fundamental feature of traditional law and custom which united these people as members of an associative society. Dr Martin also observed that he saw no substantive difference between the pre-sovereignty laws and customs of the Gaangalu Nation people that were discussed in Blucher No 3 (at [913]-[963]) and those discussed in his Revised Report in respect of the Western Kangoulu claim area.

316    Dr Martin expressed the opinion that Western Kangoulu people can be seen to comprise the 'core' of this 'associative society' at sovereignty. This is so because of what Dr Martin assumed to have been closer relationships amongst people occupying neighbouring estate areas along tributaries of the Nogoa and Comet rivers.

317    Dr Martin continued to acknowledge that, at another level of aggregation, it is possible to identify a broader set of people who shared similar laws and customs with Ganngalu people at sovereignty, being the Garingbal and Wadja. However, he no longer considered that the concept of a broader regional society at sovereignty encompassing Gaangalu, Wadja and Garingbal people to be relevant. Dr Martin explained that his opinions concerning such a regional society arose in the context of the joint conferral of experts for the Ganggalu cluster claims and the similarities of law and custom between those groups. However, Dr Martin stated that it is his view that, at sovereignty:

Gaangalu/Kangoulu people, that is, members of the Western Kangoulu and Gaangalu Nation People, were themselves a society 'which is united in and by law and custom' and comprised of 'people who share that common identity and language as Ganggalu people’ …

Findings

318    Save in respect of his opinion concerning a “core” society, I consider that the opinions expressed by Dr Martin concerning the Aboriginal society in occupation of the claim area before European settlement are reasonably held and supported by the primary evidence. More specifically, the weight of the evidence supports a finding that the Aboriginal people in occupation of the claim area before European settlement, and holding rights and interests in the claim area, were people known as Ganggalu (under its various spellings). The evidence also supports a finding, consistent with Dr Martin’s opinion, that the people known as the Ganggalu were, at sovereignty, in occupation of a larger area than the claim area, which included at least part of the GNP claim area. In other words, the Aboriginal society in occupation of the claim area before European settlement was a society that held rights and interests over a larger area of land than merely the Western Kangoulu claim area.

319    The conclusion that the Aboriginal society in occupation of the claim area before European settlement was a society that held rights and interests over a larger area of land does not undermine the Western Kangoulu claim. There is no legal requirement that the character and scope of the present day Aboriginal society, the laws and customs acknowledged and observed, and the rights and interests held, be identical to the pre-sovereignty society. As stated earlier, what is required under the Native Title Act is that the origins of the content of the present day laws and customs are to be found in the normative rules of the Aboriginal society that occupied the claim area prior to the assertion of British sovereignty, and that the laws and customs have had a continuous existence and vitality since sovereignty.

320    In this proceeding, the claim group identifies as Western Kangoulu, being the descendants of identified ancestors who were associated with the claim area and claiming rights and interests in, and a connection with, the claim area. The claim group contends that the origin of the content of the present day laws and customs are to be found in the normative rules of the Ganggalu people that occupied the claim area prior to the assertion of British sovereignty, and that the laws and customs have had a continuous existence and vitality since sovereignty.

321    In the GNP claim, the claim group identified as the Gaangalu Nation People, being the descendants of identified ancestors who were associated with the GNP claim area and claiming rights and interests in, and a connection with, the GNP claim area. In Blucher No 3, Rangiah J found (at [906]), on the basis of the evidence adduced in that proceeding, that the Ganggalu held rights and interests in the GNP claim area at sovereignty, albeit as part of a regional society consisting of Gaaggalu, Wadja and Garingbal peoples.

322    There is no overlap between the apical ancestors identified in the Western Kangoulu claim and those identified in the GNP claim. No member of the Western Kangoulu claim group sought to oppose the GNP claim, and no member of the GNP claim group sought to oppose the Western Kangoulu claim. Both claims have proceeded on the basis that, today, there exists two separate Aboriginal societies holding native title rights and interests in adjacent land, which societies are both descended from the Ganggalu people, but which have transformed over time into separate societies holdings rights and interests in separate parts of the traditional country of the Ganggalu people. Whilst the claimed transformation of the pre-sovereignty Ganggalu society into the present day societies involves significant change, the transformation is not of itself inconsistent with the requirements of the Native Title Act as explained by the High Court in Yorta Yorta. Ultimately, what the Western Kangoulu applicant must establish is that the Western Kangoulu people continue to acknowledge and observe laws and customs the content of which originate in the normative rules of the Ganggalu people that occupied the claim area prior to the assertion of British sovereignty, that the laws and customs have had a continuous existence and vitality since sovereignty, that under those laws and customs they possess rights and interests in the claim area and by those laws and customs they have a connection with the claim area. It is not necessary to establish that the present day society has the same scope and characteristics as the pre-sovereignty society. As observed by Mansfield J in Croft at [70]:

The focus in Yorta Yorta on the word ‘society’ can give the impression that some inquiry, separate from the above inquiry into traditional laws and customs, must be conducted in order to establish whether a ‘society’ exists. Jagot J in Wyman on behalf of the Bidjara People v State of Queensland (No.2) [2013] FCA 1229 at [469] observed that ‘for the purposes of the [NTA], it is the continued acknowledgment and observance of pre-sovereignty laws and customs that enables it to be said that the relevant society has continued’. That was not intended to indicate that the society which presently exists is a continuation of the society which existed pre-sovereignty.

323    In his Further Supplementary Report, Dr Martin introduced the concept of a “core” society and expressed the opinion that “Western Kangoulu people can be seen to comprise the ‘core’ of this ‘associative society’ at sovereignty”. That opinion was based on an assumption, made by Dr Martin, that there would have been closer relationships amongst people occupying neighbouring estate areas along tributaries of the Nogoa and Comet rivers. While Dr Martin’s assumption is reasonable, I consider it unnecessary to hypothesise that, at sovereignty, the Ganggalu people in occupation of the claim area were a separate society to the Ganggalu people in occupation of the GNP claim area. Too little is known of the normative system under which the Ganggalu people lived to reach any such conclusion. What is likely, as stated by Dr Martin, is that the claim area was occupied by patrilineal local descent groups who each occupied its own local areas (their buru) within the broader area occupied by the Ganggalu people.

324    Dr Martin’s use of the expression “core” society appears to be an attempt to explain the emergence of the separate Western Kangoulu and Gaangalu Nation People societies from the traditional Ganggalu society. It appears, from his Further Supplementary Report, that Dr Martin considered it necessary to demonstrate that the separate societies today had some degree of separateness in the pre-sovereignty society. In my view, that is unnecessary. Further, the evidence relied on by Dr Martin does not establish that there were separate Western Kangoulu and Gaangalu Nation People societies before European settlement. The evidence relied on by Dr Martin concerns the present day relationship between Western Kangoulu people and Gaangalu Nation People. As discussed further below, what the evidence establishes is that the Western Kangoulu and the Gaangalu Nation People share an identity as Ganggalu people based upon descent from Ganggalu people and the commonality of laws and customs. However, the evidence also establishes that the present day Western Kangoulu claim group comprises a distinct group, united by their laws and customs and claiming rights and interests in the claim area by descent from their ancestors who are believed to have held rights and interests in the claim area.

325    The transformation of the pre-sovereignty Ganggalu society into the separate Western Kangoulu and Gaangalu Nation People societies is merely one of many adaptations that have occurred following European settlement. As discussed further below, those adaptations include changes to the system of inheritance of rights and interests in land (from patrifilial to cognatic) and changes to the rights and interests in land (from local descent groups who each occupied its own local areas to undifferentiated interests across the claim area). Dr Martin explained the adaptations or transformations in the following manner in his Supplementary Report:

Knowledge of such local groups and their territories has been lost across the Western Kangoulu claim group since colonisation, with Aboriginal people of the claim area today identifying with the label ‘Western Kangoulu’ which is derived from a linguistic or ‘tribal’ label rather than the name of a local group, in an adaptation of traditional law and custom. My opinion is that the label Western Kangoulu represents an amalgamation or coalescing of local groups with traditional connections to the Western Kangoulu claim area. In my opinion, Western Kangoulu people are the landholding group today rather than the patrilineal groups which existed at colonisation. While Western Kangoulu people identify areas where their ancestors are particularly associated as significant to them, their statements quoted above at [85] nevertheless clearly indicate that all Western Kangoulu people assert connections to the whole of the claim area rather than localities within it.

It remains my opinion that claimants recognise a shared identity with members of the Gaangalu Nation People. However, my revised opinion is that this shared identity does not indicate the holding of rights in common across the territory thought to belong to the larger language speaking or ‘tribal’ group. My revised opinion is that such things as the right to identify as a Kangoulu/Ganggalu people and to teach children about the Kangoulu/Ganggalu people do not relate to the holding of rights in country, and should not be described as ‘generic’ native title rights.

326    I consider that the foregoing opinions are reasonably based and I accept them. Dr Martin’s introduction of the expression “core” society in his Further Supplementary Report is an unnecessary distraction. I do not accept that the evidence establishes that, at sovereignty, there existed a sub-group of the Ganggalu people that broadly aligns with the present day Western Kangoulu claim group. Rather, at sovereignty, the Ganggalu people were a society united by their laws and customs, language and identity, but where rights and interests in land were held by local descent groups. The local descent groups, within the Ganggalu society, constitute the origin of the Western Kangoulu claim group.

F.    APICAL ANCESTORS AND GENEALOGICAL EVIDENCE

Introduction

327    There is no real dispute that the members of the claim group are descendants of the apical ancestors identified in the Western Kangoulu claim. At the time of the trial of the Separate Questions, the State did not admit that the evidence supported a finding that the traditional country of each of the identified apical ancestors was within the claim area. However, the statement of agreed facts now records the parties’ agreement to the following facts:

It is likely that the following persons held rights and interests in the claim area under the pre-sovereignty laws and customs acknowledged and observed by the Aboriginal people associated with the claim area, as at, or shortly after, effective sovereignty:

(a)     Polly aka Polly Brown aka Polly McAvoy;

(b)     John 'Jack' Bradley;

(c)     Hanny of Emerald;

(d)     Nannie, mother of Nelly Roberts; and

(e)     Annie/Nanny Duggan and Ned Duggan,

(apical ancestors).

328    For the reasons explained below, the parties’ agreement with respect to the apical ancestors is supported by the evidence.

329    In her 2018 Report, Dr MacLean provided a detailed genealogical description of the descendants of the identified apical ancestors including references to the source material. Dr Maclean noted that the identification of the Western Kangoulu apical ancestors was based on the data cards and genealogies compiled by anthropologist Norman Tindale and his assistant Joseph B. Birdsell who, in 1938, travelled to Aboriginal settlements and reserves photographing and interviewing the Aboriginal ‘residents’. Tindale recorded the geographic origin and tribal affiliation of the residents and, more rarely, their traditional names. Dr Maclean observed that there are a number of shortcomings with the material such as the estimation of ages and dates of birth, spelling inconsistencies, and children only identified by gender and number and not named. Individuals and their families who had either received exemption from the ‘protection’ Acts and/or who were not living on the reserves visited by Tindale are under-documented or are absent from the identification of claim groups despite being born in the same place and being closely related to descendants of apical ancestors who were identified by Tindale.

330    In his Revised Report, Dr Martin details the associations of the apical ancestors with the claim area as at effective sovereignty, as best as these can be reconstructed from the available evidence. Dr Martin notes that many of the names of the apical ancestors are taken from Tindale’s work with Ganggalu people at Cherbourg in 1938, some 75 years after effective sovereignty. In her 2018 Report, Dr Maclean also describes the associations of the apical ancestors with the Western Kangoulu claim area.

331    The following findings with respect to the apical ancestors are based on the evidence of Dr Maclean, Dr Martin and the lay witnesses.

Hanny of Emerald

332    Hanny was recorded in Tindale’s “Cherbourg Genealogical Sheet 9” (1938) as “Hanny of Emerald”. Based on the evidence, Dr Martin drew the inference that Hanny was associated with the town of Emerald by people interviewed by Tindale, hence her appellation “Hanny of Emerald”. Dr Maclean observed that, while Hanny was associated with Emerald by Tindale in 1938, the period in which Hanny is estimated to have been born (the early 1850s) predates the establishment of the township of Emerald in 1879 by some decades.

333    In her report, Dr Maclean provides information concerning Charlie Barber and Lizzie Barber who are both believed to be Hanna’s children.

334    There is very little documentary evidence concerning Charlie Barber’s birth and parentage. He died on 27 July 1919 of typhoid fever at the Rockhampton Hospital and was buried on 28 July 1919 at South Rockhampton Cemetery. The South Rockhampton Cemetery Burial Register records his birth year as 1869.

335    The expert and lay evidence focused on a daughter named Lizzie. Hanny is documented by Tindale as having a daughter, “Lizzie Thomas”, with “Thomas white station owner”. However, the lay evidence identifies Lizzie with Lizzie Barber who married Abraham Johnson on 15 April 1920 at Barambah, Queensland. The marriage certificate states that Lizzie was born circa 1880 at Theresa Creek, Capella (within the claim area). Lizzie’s mother is named in this document as “Rosie”. On Abraham Johnson’s data card, Lizzie is recorded as having been born circa 1890-1900 in Emerald. Lizzie’s death certificate has not been located, but Dr Maclean observed that it is likely that she died before March 1938, as that year Abraham Johnson married Nancy Saunders.

336    Lizzie Barber had two children with Abraham Johnson (from whom there are descendants):

(a)    Harry Johnson, who was born on 10 July 1919. Dr Maclean notes that in 1977 he was living on Palm Island, and he died before 2004. Harry Johnson married Kallatina Kathleen Mapoon and they had a number of children together, including relevantly Vassa Iris Johnson (a member of the claim group and a witness in this proceeding), who was born in 1947 at Palm Island. Vassa married Toby Hunter.

(b)    Bowman Theodore Johnson, who was born on 21 June 1921 at Barambah. He died on 9 December 1998 in Sarina at age 77. Bowman Johnson married Edith McGrath on 31 January 1948 at Cherbourg. Relevantly, one of Bowman Johnson’s children with Edith McGrath was Lizabeth Eva Johnson, born in 1952. Lizabeth Johnson is a claim group member and a witness in this proceeding. Ms Johnson had five children with Graham Henningsen, including Hedley Henningsen, another claim group member and a witness in this proceeding.

337    Three witnesses in the proceeding claim to be descended from Hanny: Lizabeth Johnson, Hedley Henningsen and Vassa Hunter. Each gave evidence that they are Western Kangoulu through their descent from Hanny.

338    Hedley Henningsen and Lizabeth Johnson each gave evidence at Site 2, next to the Nogoa River in Emerald, that this was the birthplace of Hanny and that they were told this by Bowman Johnson. Lizabeth Johnson said that, at an early age, her father, Bowman Johnson, showed Ms Johnson where Hanny was born on the banks of the Nogoa River and told her that Lizzie Thomas was born on the banks of Theresa Creek on Glenelg Station. Hedley Henningsen gave evidence that, in the mid-1990s, his Bulloo (grandfather) took him to Hanny’s birth place on the banks of the Nogoa River at Emerald, near a former Ganggalu camp and where scar trees still stood showing the birth of other Ganggalu people. His grandfather also took him to where Lizzie Thomas (traditionally called Berrimgoo and later Moogara Dilli) was born on the banks of Theresa Creek on Glenelg Station, near a former Ganggalu camp and where the scarred tree showing her birth place still stands among other such trees, and told him that place was Western Ganggalu country.

339    Vassa Hunter said that her father was Harry Johnson who was the son of Lizzie Johnson (nee Barber/Thomas), whose tribal name was Mugura (or a similar spelling), and Abraham Johnson. Ms Hunter said that she was told by her father that Abraham Johnson was a Birri Gubba man from Nebo. Ms Hunter also said that she was told by her father and her uncle (Bowman Johnson) when she was in primary school that Granny Lizzie was a Ghangolou (Kangoulu) woman from Emerald. Vassa Hunter explained that she never met Granny Lizzie because Granny Lizzie died before she was born. She said that she was told by her father and her uncle that she is a Kangoulu woman through her father and through Granny Lizzie. Vass Hunter said that Granny Lizzie's mother was Hanny of Emerald. She said that Granny Lizzie had a brother and sister, Grandad Charlie and Granny Jessie. Granny Jessie visited her family at Palm Island. Ms Hunter lived much of her early life on Palm Island in a cluster of Birri Gubba and Ganggalu people. Because of this, she does not have a detailed knowledge of boundaries. Ms Hunter learned some Ganggalu and Birri Gubba language from her father, who spoke language fluently.

340    Lizabeth Johnson and Cheyne O’Chin also gave evidence that Lizzie Barber and Abraham Johnson adopted Jack O’Chin. A number of descendants of Jack O’Chin are included on the genealogical chart for Hanny prepared by Dr Maclean. Most of these descendants are the family of Veronica O’Chin (daughter of Jack O’Chin and Lorna Loder) and her husband Edgar Broome. Edgar Broome adopted Cheyne O’Chin, the son of Veronica O’Chin and the grandson of Jack O’Chin.

341    Although the historical documentary record concerning Hanny is sparse, it is supplemented by family evidence linking present day claimants with Hanny. The evidence, taken as a whole, supports a finding that Hanny was not only associated with Emerald, but was born in the vicinity of the Nogoa River in present day Emerald and was Ganggalu. The passing down of the Ganggalu identity from generation to generation is strong evidence of Hanny’s tribal identity. The lay witness evidence shows that a family member’s tribal identity is regarded as important information that is passed from generation to generation. Each of the lay witnesses displayed a high degree of awareness of tribal identities. Further, in circumstances where Abraham Johnson’s tribal identity was Birri Gubba, the fact that Lizzie’s different tribal identity (Ganggalu) was known and passed down through the generations provides strong support for the veracity of that information. As Lizzie’s father is acknowledged to be a European settler, it is reasonable to conclude that Lizzie acquired her tribal identity from her mother, Hanny.

Nannie/Annie, Mother of Nelly Roberts

342    There is conflicting evidence as to the birth place and tribal identity of Nannie.

343    Tindale’s Woorabinda Genealogy Sheet 33 (dated 19 November 1938) records “Annie (Nannie)” being married to “William Roberts Scotchman” with the following notations near her name: “fb”, “ŋuri Tribe”, and “of Upper Maranoa R.”, and having five children: Herbert, Harry, Mary, Nellie and Alice. A data card reference (N1233) is included against Harry Roberts’ name, suggesting that Harry Roberts was Tindale’s informant for the genealogy. The data card, also dated 19 November 1938, records that Harry Roberts was 57 years of age, his place of birth was Huntley Station near Clermont and his tribal identity was recorded as Nguri. The card also records the following information concerning his mother: “Annie F.B. Maranoa R. Nuri Tr”.

344    Different information appears on Tindale’s Cherbourg Genealogy Sheet 110 (dated 10 December 1938). It records “Nannie” as being married to “William Roberts white man”, with the following notations near her name: “Widi ? or Kangolu but ŋuri on Woorabinda Sheet 33”; “fb” and “of Springsure”. The informant for this information cannot be discerned.

345    There is documentary evidence that Nannie was resident in Capella prior to 1903. In a letter dated 19 June 1903, Harry Roberts wrote to his mother care of “A Meston Esq of Capella”, stating that he was sorry to hear that she was “taken away”. In a documentary record from February 1918, Herbert Roberts described his unnamed parents as both being dead, indicating that Nannie died before 1918.

346    Two witnesses in the proceeding are descended from Nannie, through her daughter Nellie Roberts – Karen Broome and Priscilla Broome (who is now deceased). According to her death certificate, Nellie (or Nelly) Roberts was born in 1900 at Capella. She died on 16 March 1976 at Cherbourg. Dr Maclean identifies one of Nellie Roberts’ children as Ivan Roberts, who was born on 17 September 1920 at Barambah. Ivan Roberts married Clare Saunders on 5 May 1941 at Woorabinda. They had five children, including Priscilla Kate Roberts (Priscilla Broome, deceased), mother of Karen Broome (a named applicant in the proceeding).

347    Dr Martin noted that the linguist Nils Holmer spoke with Nellie Roberts, then called Nellie Orton (after marrying Ridely Orton in 1952). As noted earlier, Holmer conducted fieldwork in Australia (including in Central Queensland) in 1970-1971 and published this data in a book titled “Linguistic Survey of South-Eastern Queensland” in 1983. Nellie provided the following details to Holmer about her family:

Mrs Nelly Orton (Roberts), at Cherbourg, born at Capella (by Springsure), her mother being a Gangulu from the same place, while her father was a white man.

348    Dr Martin observed that Nellie’s identification of Nannie as “Gangulu” in around 1970 (decades prior to native title research) is significant.

349    Priscilla Broome swore an affidavit in the proceeding on 4 May 2013, but died on 26 December 2015. Her affidavit was tendered without objection. Priscilla Broome was originally a named applicant for the Western Kangoulu claim. In her affidavit, Priscilla Broome deposed that her mother was Claire Saunders, a Gunggari woman, and her father was Ivan Roberts, a Kangoulu man through his mother who was Nellie Roberts (Granny Nellie). She deposed that she was Kangoulu because her father was Kangoulu. Ms Broome lived variously in Woorabinda, Clermont, Bundaberg and Rockhampton and had visited Emerald on many occasions including when she was young. She deposed that, when she was young, her father was sent to Palm Island from Woorabinda. He eventually came back to Woorabinda, but her father and her mother were parted for years. Because of this, Ms Broome learned about Kangoulu country and law and custom from Granny Nellie. She deposed that, when she was younger, her mother and Granny Nellie would talk about the towns in Kangoulu country such as Emerald and Capella, and she grew up “knowing it's my country as a Kangoulu person”.

350    Karen Broome is a named applicant and claims rights and interests in the claim area through descent from Nannie. Karen Broome’s mother is Priscilla Broome. Karen Broome gave evidence that she has lived most of her life in Bundaberg, apart from six months in Brisbane, and that she visited her Grandad Ivan, the son of Granny Nellie, once at Woorabinda, a few years before he died. Karen also gave evidence that her mum lived at Clermont and that her mum believed that Clermont was part of Western Kangoulu country; that her mum always said that they came from west of the Comet River; that Granny Nellie told her that she was from Sandy Creek, Theresa Creek and the Nogoa River; and that Western Kangoulu country is around Emerald and Capella.

351    None of the other lay witnesses discuss in any detail, or dispute, Nannie as an apical ancestor associated with the claim area.

352    As noted above, there is conflict in the evidence concerning Nannie’s birthplace and her tribal identity. However, taken as a whole, the evidence supports a finding that Nannie was a Ganggalu person and was likely born near Springsure, which is just to the south of the claim area. It is clear that, in November 1938 at Woorabinda, Harry Roberts described his mother as Nguri and said she was of the Maranoa River. However, Tindale’s informants at Cherbourg in December of that year gave conflicting information. Tindale’s Cherbourg Genealogy Sheet 110 records the notation: “Widi ? or Kangolu” and “of Springsure”. The notation strongly suggests that an informant at Cherbourg (presumably one of Nannie’s adult children) suggested that Nannie’s identity was Ganggalu. Subsequently, in about 1970, Nellie informed Nils Holmer that her mother was Ganggalu. All of that occurred before the native title era. That information was passed down through the generations to Priscilla Broome and Karen Broome. The passing down of the Ganggalu identity from generation to generation is strong evidence of Nannie’s tribal identity. The lay witness evidence shows that a family member’s tribal identity is regarded as important information that is passed from generation to generation. Each of the lay witnesses displayed a high degree of awareness of tribal identities.

353    The fact that Nannie was born at or near Springsure does not contradict her identity as a Ganggalu person, nor conflict with the claim of her descendants that they hold rights and interests in the claim area. The boundaries of Aboriginal tribal land prior to European settlement cannot be known with precision, and Springsure is very close to the southern boundary of the Western Kangoulu claim area. Further, the information recorded in Tindale’s genealogy sheet in Cherbourg, “of Springsure”, cannot be understood as a precise location of birth.

354    I am satisfied, on the basis of the evidence as a whole, that Nannie was a Ganggalu person.

Polly/ Polly Brown/ Polly McAvoy

355    There is no dispute between the parties that Polly Brown/McAvoy was born between 1875 and 1885 at Clermont, she had two daughters, Jessie McAvoy (who was born in 1906 at Clermont) and Maude Joyce McAvoy (who was born in 1908 at Clermont), and that she married an Aboriginal man named Charlie McAvoy. In 1916, Polly was removed from Clermont to Barambah, where she died of influenza on 23 April 1920. Jessie died around 1940 while Maude died in 1982.

356    Two witnesses in the proceeding are descendants of Polly, through her daughter Jessie: Patrick Malone (the great-grandson of Polly) and his son, Jonathon Malone.

357    On Tindale’s Cherbourg Genealogy Sheet 69 (dated 4 and 9 December 1938), Polly is named as “Polly McEvoy – fb, Kangulu, Clermont”. Her husband is simply noted as “white man” on this sheet, with whom she is recorded as having two daughters, Jessie and Maude. Jessie is recorded as having relationships with three men: “Fred Smith white man”, “Donny Moss” and “Len Malone of West Central Queensland”. It is apparent that Jessie is the informant for that genealogy as a data card reference (N1481) is recorded next to her name. The data card, dated 9 December 1938, records Jessie’s age as 39, her place of birth as Clermont, her father as “white man” and her mother as “Polly McEvoy, FB, Clermont Qu, Kangulu tr”. On another card, Jessie’s tribe is recorded as “Kangulu”.

358    Jessie had a son with Frederick Smith named Hedley, born in October 1926 at Barambah. A separate data card (N1443) was made for Hedley on 8 December 1938 at Cherbourg when Hedly was 12 years old. It can be inferred that the informant was Hedley’s mother, Jessie. Hedley’s tribal identity is recorded as Kangulu. Hedley died on 28 February 2010 at Rockhampton, aged 83.

359    Jessie and Lenny Malone obtained permission to marry (from the Chief Protector of Aborigines) and they married on 6 March 1928 at Barambah. Hedley was subsequently adopted by Jessie’s husband, Lenny Malone (and was therefore named Hedley Malone).

360    Jessie and Lenny Malone had a daughter, Maude Malone, born in 1930. Maude’s eldest son, Patrick Malone, was born in 1951.

361    Jessie had a number of other children, including Priscilla Malone (born circa 1928), Lennard Malone (born 1929), and Lindsay Moss (born 1934, whose father was Donny Moss).

362    Patrick Malone gave evidence that he does not know the identity of his father. He said that his mother, Maude, had seven children including Patrick. He gave evidence that he is a Western Ganggalu person through descent from his great grandmother on his mother’s side, Polly. He said that his mother told him many times when he was growing up that she was Ganggalu and that he was Ganggalu, and that their country was around Emerald and Clermont (and not Cherbourg). Patrick also gave evidence that he was told by his mother that:

(a)    Polly lived at Emerald and Clermont. She married Charlie McAvoy and they had two daughters, Jessie and Maude, who were born at Clermont. Polly, Charlie and Maudie were taken off their country to Cherbourg in 1914.

(b)    Nana Jessie remained on Western Ganggalu country and worked on properties in the district until 1926, when she was removed from Killkullen Station to Cherbourg “for morality reasons” (she was pregnant to a white man).

(c)    His mother and her brothers Hedley and Lenny (who is also known as “Mully”) and sisters, Lindsay and Priscilla, were raised by Jessie's sister, Maudie, who also raised Patrick for a time.

363    Patrick Malone also gave evidence that his Uncle Hedley told him in 2004 that Hanny and Polly were sisters. It is unnecessary to make a finding about that fact and, as it is not corroborated by other evidence, I decline to do so.

364    Patrick Malone was also a claimant in the Clermont-Belyando Area native title claim. He gave evidence that he claimed rights in the Clermont-Belyando claim area through Charlie McAvoy. In cross-examination, Patrick Malone was asked about giving evidence in the Clermont-Belyando proceeding to the effect that “Charlie and Polly were traditionally from around Clermont”. He said that that statement is not correct and that only Charlie McAvoy was traditionally from the Clermont area. I understood from Mr Malone’s answer that he was seeking to convey that the traditional country of Polly, as a Ganggalu person, was not the Clermont area.

365    Jonathon Malone gave evidence that he is a Kangoulu person through his father, Patrick, as a descendant of Polly. Jonathan learned this through his father, who took Jonathan through Western Kangoulu country so that Jonathan would know where he was from.

366    None of the other lay witnesses discuss, or dispute, that Polly Brown/McAvoy is an apical ancestor associated with the claim area.

367    Taken as a whole, the evidence supports a finding that Polly was a Ganggalu person and was born in or near Clermont. Polly’s tribal identity was given by her daughter, Jessie, in 1938. Jessie assigned the same identity to herself. Polly’s tribal identity is not contradicted by any other evidence. In particular, the fact that Polly was born at or near Clermont does not contradict her identity as a Ganggalu person, nor conflict with the claim of her descendants that they hold rights and interests in the claim area. As noted earlier, the boundaries of Aboriginal tribal land prior to European settlement cannot be known with precision. Furthermore, Clermont is close to the north-west boundary of the Western Kangoulu claim area, which has been the subject of some dispute over time. The movement of Polly’s mother from the claim area to Clermont after effective sovereignty is consistent with the evidence of dislocation of Aboriginal people following European settlement. Polly’s residence at Clermont when she was removed in 1916 to Barambah is likely due to her marriage to Charlie McAvoy, who Patrick and Jonathon Malone say was from Clermont.

368    I am satisfied, on the basis of the evidence as a whole, that Polly was a Ganggalu person.

John (Jack) Bradley

369    At the time of trial, the applicant and the State agreed that John (Jack) Bradley’s traditional country was more likely than not within the claim area.

370    Jack Bradley’s death certificate records that he was born in Emerald circa 1887. He died on 4 May 1950 of tuberculosis at Cherbourg.

371    Tindale’s data card for “Jack Bradley Sn” (N1360), prepared at Cherbourg on 30 November 1938, also records his birthplace as Emerald and estimated his age as 50 (making his birth year circa 1888). The data card records his tribe as “Kangulu”. His mother is recorded as “F.B of Emerald Kangulu” and his father as “Negro (no particulars)”. However, Jack Bradley’s death certificate names his father as Billy Bradley. Dr Martin observes that Jack’s estimated birth date of 1888 or 1887 in Emerald would suggest that his “Kangulu” mother was located in the claim area around the time of effective sovereignty, presuming she gave birth to Jack around the age of 25.

372    Jack married Lizzy White circa 1903 at Emerald. Tindale’s Cherbourg Genealogical Sheet 17 records Lizzy as “FB of Emerald” and that Jack and Lizzy had two daughters, Laura and Bessie. Jack appeared on the Aboriginal War Census of 1915 at Emerald as a labourer. Later that year Jack and his family were removed from Emerald to Barambah. He appears to have stayed at Cherbourg the rest of his life, being named amongst the residents of Cherbourg in 1930 and interviewed there in November 1938.

373    Laura Bradley was born in 1907 at Emerald. Laura married John Gee Gee (also known as John Broome) on 6 March 1928 at Cherbourg. Laura and John had five children including Edgar who was born on 2 March 1939 at Cherbourg. Edgar Broome had nine children, including Cynthia Broome (one of the named applicants and a witness in the proceeding). As mentioned earlier, he also adopted Cheyne O’Chin (also a witness in the proceeding).

374    Bessie Bradley was born circa 1909. Bessie had a relationship with an unknown white man which produced a son, Jack Bradley. She later married Lester John Joseph Ledbury and, after his death, married Martin Elford Kenny. Bessie Bradley died on 18 January 1975 at Hughenden, Queensland.

375    Cynthia Broome gave evidence of being Western Kangoulu through her father, Edgar Broome, a descendant of Jack Bradley (Ms Broome’s great-grandfather). Ms Broome’s mother is Veronica Broome, whose father was Jack O’Chin. As stated earlier, Jack O’Chin was adopted by Abraham Johnson and Lizzie Thomas, who was the daughter of Hanny of Emerald. Ms Broome acknowledged that she is descended from Ganggalu people on both sides of her family, but (in her words) she follows her father’s side.

376    Cheyne O’Chin also gave evidence that he is Western Kangoulu through his father, Edgar Broome. He explained that he changed his surname to O’Chin later in life to fulfill a promise he made to his mother to keep her family name alive. Cheyne’s mother, Veronica Broome, was the daughter of Jack O’Chin. Cheyne gave evidence that his father was a man named Wilkie, but that he did not know him. Cheyne said that his mother and Edgar Broome partnered when he was three years old and Edgar treated Cheyne as his son. Cheyne calls Edgar his dad.

377    None of the other lay witnesses discuss, or dispute, John (Jack) Bradley as an apical ancestor associated with the claim area.

378    I am satisfied, on the basis of the evidence as a whole, that John (Jack) Bradley was a Ganggalu person.

Annie and Ned Duggan

379    The applicant has named Annie and Ned Duggan as Western Kangoulu apical ancestors, although no living descendants of Annie and Ned have been identified.

380    At the time of trial, the State agreed that Annie Duggan’s traditional country was more likely than not within the claim area, but did not accept that the evidence established that Ned Duggan’s traditional country was within the claim area.

381    Tindale’s Cherbourg Genealogical Sheet 109 (dated 8 December 1938) records Ned Duggan marrying Annie and having four children: Clara, Grace, Ted and Dollie. Sheet 109 also records Annie having a child named Julia with an unnamed “white man”. Next to each of the names Ned Duggan, Annie and Dollie Duggan are the notations “fb, Kangulu, Emerald Qu”, and next to the names Clara, Grace and Ted is the notation “fb”. It appears that Dollie Duggan was the informant, because her name is associated with data card N1452. The data card records Dollie’s age as 45 (giving her year of birth as 1893), her place of birth as Emerald, her father’s name as “Ned Duggan FB Kangulu tr” and her mother’s name as “Annie FB Kangulu tr”. On a sheet of the data card, Annie’s date of birth is estimated in the period 1860 to 1870 and her place of birth is recorded as Emerald. On other sheets, both Clara and Julia are recorded as having been born in Emerald and being Kangulu, but both were deceased in 1938.

382    It is not known where or when either Annie or Ned Duggan died.

383    No further documentary evidence concerning Grace Duggan has been found.

384    Ted Duggan was born in 1889 at Emerald. He died on 25 February 1954 in Oakey, Queensland aged about 65. No children are listed on his death certificate.

385    Dolly obtained exemption from the 1939 Protection Act aged 68 while living in Wondai in 1955. She died on 26 August 1958 in Queensland. Dolly did not marry and she has no known descendants. Dr Martin noted that Tennant-Kelly recorded information obtained from Albert Holt (identified as “Bidjera”) concerning the placement of both “Bidjera” and “Kangalu” people, which included a note that “Aggine Bone + Dolly Duggan are Kangalu people”.

386    No direct descendant of Annie or Ned Duggan gave evidence in the proceeding. However, Vassa Hunter gave evidence that “Old Granny Dolly Duggan” was her father’s aunty, and that her father knew she was Kangoulu. Like Vassa Hunter, Dolly Duggan lived on Palm Island for a period. Vassa Hunter stated that she was seven years old when Granny Dolly died and that she does not know whether she was blood related. The genealogies prepared by Dr Maclean do not show a blood relationship between Vassa Hunter’s father, Harry Johnson, and Dolly Duggan.

387    None of the other lay witnesses dispute Annie and Ned Duggan as apical ancestors associated with the claim area.

388    The evidence supports a finding that both Annie and Ned Duggan were Ganggalu people and were born and lived in or near Emerald. The evidence consists of information given to Tindale and Birdsell in 1938 by Annie and Ned’s daughter Dollie, as well as information given to Tennant Kelly by Albert Holt about Dollie. There is no contradictory evidence.

389    I am therefore satisfied that both Annie and Ned Duggan were Ganggalu people.

Charlotte Costello

390    As discussed earlier, Tennant-Kelly identified Charlotte Costello as a “Kangalu” person associated with Emerald. However, Dr MacLean’s searches of various records have not identified any descendants of Charlotte Costello or her probable husband, Tom Costello. Dr Martin gave evidence that his own research with members of the applicant has likewise failed to identify any descendants of Charlotte Costello.

G.    DISRUPTION AND ADAPTATION OF TRADITIONAL LAWS AND CUSTOMS

391    As noted earlier, in the late 19th and early 20th centuries, the majority of the Aboriginal population of the claim area and the broader region of Central and South-East Queensland was removed to places like Woorabinda and Barambah (now Cherbourg), where they mixed extensively amongst each other. The forebears of many of the members of the claim group were removed to Cherbourg, although others went to Woorabinda and Palm Island and Stradbroke Island.

392    Dr Martin expressed the opinion that the forcible removal of Aboriginal people from the claim area to Woorabinda and Cherbourg profoundly impacted their lives and negatively impacted their knowledge and observance of traditional laws and customs. Nevertheless, Dr Martin observed that knowledge of traditional laws and customs continued to be passed on, notwithstanding the removal of Ganggalu people from their traditional country. For example, Dr Martin observed that Tennant-Kelly’s reference to Charlotte Costello’s “run” indicates that some knowledge of local rights and interests endured into the 1930s as the surviving members of local groups coalesced into larger groupings of Ganggalu-speaking people at places like Cherbourg. Remaining members of local groups like Charlotte Costello remembered connections to specific areas while identifying more broadly as a Ganggalu person with connections to other Ganggalu-speaking people. Over time, and as the controls placed on Aboriginal people eased, the claimant group moved more freely away from Cherbourg and other reserves.

393    The evidence indicates that, at Cherbourg, Aboriginal people from different areas lived in distinct camps. Dr Martin referred to an observation made by the historian Dr Thom Blake that the most significant feature of the Aboriginal “domain” at Cherbourg was the locating of camps according to regional or tribal affiliations. Dr Blake drew in part on a source in The Queenslander of June 1907, which recorded: “A visit to the camp disclosed some interesting features. One was that the blacks from different localities each had their own camps”. A number of witnesses gave evidence to similar effect. For example, Patrick Malone recalled that “in the old days, there were different camps for different tribal groups at Cherbourg. This was before houses and in the early days of huts. It was before my time.” Lizabeth Johnson’s father told her about growing up at Cherbourg, before he was forced to leave. He told her that “he grew up around his people. Back then people still had camps. People would camp around others who were family or spoke the same language. Even though the white supervisors wouldn’t let people speak in their own lingo, people would whisper or wait until the supervisors weren’t around.”

394    The evidence also indicates that Aboriginal people from a number of different areas interacted at Cherbourg, including at the time of Tennant-Kelly’s fieldwork. In her publication, Tribes on Cherbourg Settlement, Queensland, Tennant-Kelly recorded that she spent about four months at Cherbourg in 1934. She estimated that there were 900 Aboriginal people resident there, “gathered in from all parts of Queensland”. Tennant-Kelly stated that those at the settlement came from areas “where tribal life has been broken up through the coming of the white settler” and described the social structure of the residents at Cherbourg as “tottering”. In respect of the possibility for the continuation of traditional customs, she observed:

In such a tangled society as that on the Settlement there is very little hope of moiety or section organization surviving. Various tribes have totems which appear in different moieties, thus adding to the chaos, and sections do not seem fundamental in the native organization. Also there is definite white influence operating on the ritual and social life which takes no account of either moiety or section.

395    Tennant-Kelly also commented on a tendency for older people to guard their knowledge, commenting:

The older people guard their religious secrets very jealously from the young men and women who have been reared since birth with white people. The young men are not initiated and therefore are not suitable recipients of the tribal lore and totemic secrets.

396    Dr Martin observed, however, that Tennant-Kelly’s analysis also indicates strong continuities of law and custom at this time. For example, she describes herself “fortunate in finding many old people to whom the past was more real than the present with its disintegration of native social life”. In respect of the continuation of an observance of totemism she observed:

It is of interest to note the extent to which totemism is retained in the life of the Settlement. Both full-blood and half-caste providing they were reared in the native camp as children, have a very real belief and interest in the totemic ancestors. This may be choked under missionary influence, but it is never very far from the surface. Contact with the official and the missionary have made them chary of openly discussing these matters. They fear the ridicule of the white man, but at the time of death one can observe how deep-rooted is this belief and in their grief mourners who previously seemed completely under mission influence, return to the older forms as if they had never ceased to practice them. This is all the more remarkable seeing that all funerals are conducted by the missionaries.

397    In respect of the likely continuity of this custom, Tennant-Kelly observed that “as yet there is no sign that the totemic clan system will cease to function. The totem as a personal possession survives”.

398    A number of witnesses gave evidence about the transmission of knowledge of traditional law and custom at Cherbourg.

399    Patrick Malone lived many of his early years in dormitories at Cherbourg with his mother and his mother’s mother, Maude Mona Malone/ Philips (“Nan/Nana/Nanna Maudie”), who had a major role in raising him, particularly when his mother lived away from Cherbourg. In Dr Martin’s fieldnotes and in Patrick Malone’s 2018 statement, Mr Malone describes how Nan Maudie had a role in the girls’ dormitory in the 1950s. A fieldnote of Dr Martin shows that Patrick Malone told him “My Nanna Maud was a monitor in the girls’ dormitory. She’d talk about parts of this country [i.e. the claim area], how there were lots of bottle trees, koalas, wombats”. Dr Martin observed that, despite the institution of the dormitory system designed to separate children from their parents and interrupt the generational transmission of cultural knowledge including traditional laws and customs, some claimants like Patrick Malone continued to interact with senior generations of Ganggalu people.

400    When he was around nine years old, Patrick Malone’s mother moved to Capella to help her sister Lindsay, and Patrick moved in with his “Uncle Mully” (Lenny Malone) at Cherbourg. Mr Malone said that his Uncle Mully maintained a house at Cherbourg where relations could “yarn” around the fire:

Uncle Mully’s house at Cherbourg was really a shell. No ceiling, just a roof with no lining. There was always a fire going and people sitting around yarning. We slept outside around the fire. There was a lean-to at the end with a double mattress next to the fire.

401    It was in Uncle Mully’s house that Patrick Malone interacted with senior Aboriginal people on the settlement, learning aspects of traditional law and custom such as his knowledge of totemism and dances like the honeybee dance. Patrick Malone said that significant older people in his life like Lenny Malone took him and his cousins hunting at Cherbourg to supplement their rations. Dr Martin recorded in his field book that Patrick credits “Mully” with teaching him how to hunt, and passing on rules relating to the taking of bush resources. In his statement, Patrick Malone said:

We only took what we needed to survive. Uncle Mully taught me that. When I was about 9 or 10 Uncle Mully told me that we couldn’t eat the long-necked turtle, but we could eat the short-necked turtle. He also told me we couldn’t eat the black goanna, but could eat the sand goanna. He said the black goanna was a dirty animal. We would cook both the short-necked turtle and sand goanna by placing it on its back on the coals of the fire. I’ve never eaten emu in my life. Uncle Mully told me not to. He said I’d get sick if I did.

402    Patrick Malone said that another aunt taught him and other children at Cherbourg how to collect “bush tucker” and fish and said that “I learned a lot about bushcraft and country from Aunty and Uncle while we were hunting, fishing and gathering”.

403    Mr Malone was unclear of the extent to which the traditional laws and customs that he was taught while at Cherbourg were Western Kangoulu laws and customs. As Mr Malone commented in cross-examination, because of the nature of Cherbourg, where many tribes and languages came together, it was difficult to separate those customs and languages from one another. Lennie Malone (Uncle Mully) is identified by Patrick and Jonathon Malone as being from Alpha, which is in the area of the Clermont-Belyando native title claim.

404    Lizabeth Johnson, whose family was exempted from Cherbourg when she was very young, spoke about how they visited Cherbourg often when she was young. When her family visited Cherbourg, they would stay with Nanna Sel (Sarah Gobbo). She was their mother’s foster mother. Sometimes they would stay a week or two. When they got older, Lizabeth Johnson would stay in the girls’ dormitory, run by Nanna Maudie Phillips (nee Malone). Her younger brothers, Selwyn and Hedley, would stay in the boys’ dormitory run by Uncle Jack O’Chin and Aunty Nellie. Lizabeth Johnson said that when they visited the mission, her mother and father would take them to visit all the relatives. They would have to see all their elders first, before they could do anything else. They needed to pay respects to their elders before they got on with the rest of their visit. After that, they could see their cousins.

405    Lizabeth Johnson also gave evidence of corroborees occurring at Cherbourg, even though they were forbidden:

Usually after the white fellas had left to go home at night. We would do it out bush away from the mission. We might have had a big formal, mission event one night, but then we would quietly depart the mission boundary for a celebration corroboree afterwards.

Out came instruments - clap sticks, big killer boomerangs, body sounds. Later didgeridoo that we got from the Northern Territory people. We used them as well. At the conclusion of the ceremony we'd put the clapsticks in the fire for completion - it was to give it back to Mother Earth, back to the spirits.

406    The physical separation of Ganggalu people from the claim area was not uniform. The evidence refers to a number of people who were exempted from the 1939 Protection Act and lived away from the missions and reserves. Outside the missions, Ganggalu people were able to share their traditional laws and customs more freely. A number of the witnesses gave evidence about the transmission of traditional law and custom outside of mission life.

407    Lizabeth Johnson gave evidence that her father, Bowman Johnson, was exempted from the 1939 Protection Act in 1954 and expelled from Cherbourg for being “a troublemaker”. After leaving Cherbourg, Bowman Johnson and his family (including Lizabeth Johnson) travelled to Wondai and obtained a job with the railway at Mungar Junction, just outside Maryborough. Lizabeth Johnson explained that the railway was one of the few places for an Aboriginal person to get a job. Other members of her family obtained jobs on the railway, and the family was able to visit other family members at Cherbourg.

408    Ms Johnson described her father as a pivotal person in Western Kangoulu culture. He learned several Aboriginal languages plus English. Ms Johnson said that, once he was expelled from the mission, her father was thrown into the role of Yubba Dju, which she explained means “older brother” or “knowing one”. He was Yubba Dji when he was in the mission, which means “younger brother” or “willing learner”.

409    Lizabeth Johnson said that, working for the railway at Mungar Junction, her father was able to assist people who were still at Cherbourg Mission, because he had more resources and the freedom that being outside the mission provided. He used to collect tarpaulins and things to make camps for people. They always had lots of visitors from the missions: Cherbourg, Taroom, Woorabinda and Palm Island. Family came through constantly. Ms Johnson’s father would help out when and where he could.

410    In her interviews with Dr Martin and Dr Gorring, Ms Johnson explained how her memories of her father include the “fire” he maintained in different locations as the family moved around in the years after Cherbourg. She told Dr Martin: “We had a campfire and our campfire was lit and it never went out – mother [Edith Long] and father let everyone know where we were with that fire”. From her perspective, her parents were “the axis”, and commanded “respect and admiration” across the family.

411    While resident at Maryborough and other locations, Ms Johnson remembers that she and her family went backwards and forwards to Cherbourg often to visit family, especially during the holidays. Because they were exempted, they could not stay overnight at Cherbourg without written permission. Ms Johnson’s father was welcomed by family, but not by the establishment.

412    Ms Johnson said her mother and father made applications for transfers to try and be close to family when the opportunity arose. Her father was all the while mindful of how close those transfers would be to their country. He wanted to work on their country or if he couldn’t do that, to work as close to it as he could. Ms Johnson said her first time on country was probably when she was three or four years old, when she and her family were travelling. They went back to country from Mungar Junction, Maryborough and wherever else they were living, as regularly as they could.

413    Ms Johnson spoke about traditional knowledge passed on to her by her father, Bowman Johnson, who she said was very knowledgeable about Western Kangoulu country and their laws and customs. Ms Johnson said her father was a stickler for rules. He impressed on them the importance of rules, and he sometimes made games out of teaching them things like hunting and their traditional laws. Ms Johnson said her father did not differentiate between traditional laws and other knowledge; he blended them together, and so they learnt traditional laws at the same time as learning other things while they were growing up.

414    Patrick Malone was born in Brisbane but moved to Cherbourg with his mother, Mona Maude, when he was an infant. Patrick said that he “ran away” from Cherbourg when he was 15 years old and went to Brisbane to see his mother. Patrick said that he was a street kid for a while and could only get jobs in factories. During this time he stayed with his mother’s brother, Uncle Bowman Johnson (whom he called Uncle BJ). Patrick said that Uncle BJ treated him like one of the family and he grew up as one of Lizabeth Johnson’s brothers. Later, Patrick moved to Gracemere where he lived with his mother’s other brother, Uncle Hedley Malone, who worked on the railway. Uncle Hedley got Patrick a job on the railway working from Rockhampton to Emerald. Patrick explained that, during this time, he worked in Ganggalu country and lived in railway camps between Gracemere and Comet.

415    Patrick Malone’s evidence describes his close connections with the members of his family and his acquisition of knowledge about his extended family and the claim area from his family. For example, Patrick described a trip that he did to Clermont with his Nana Maudie in about 1975-76. Patrick said:

… On the way, I remember her telling me that she grew up in the country around the Peak Downs Range (Peak Range), until she was taken to Cherbourg when she was nine years old. She told me at that time that the Peak Downs Range was a border of our country.

On that same trip, Nana Maudie told me about bottle trees. She told me that bottle trees were significant for our people because the fibres were used to make string and it was a source of water. She learned this from her parents and passed this information onto me. Bottle trees are in the country all the way from Emerald to Clermont. You know you're in your own country because the bottle tree is prominent there. I saw a bottle tree at the zoo in Rockhampton the other year. It was out of place; that’s not its country.

416    Hedley Henningsen has indicated that his knowledge of the claim area has been passed down from his mother’s father Bowman Johnson, whom he calls Bulloo. Hedley Henningsen described how Bulloo took him on three trips through the claim area in the late 1990s. He recalled:

Bulloo found out about this [conflict involving Hedley and his mother’s brother Norman Johnson] and told me that we needed to go on a road trip – he wanted to show me my Ganggalu country himself. It was the first of our three trips to country before he died…. He passed on a lot of knowledge to me about Ganggalu laws and customs and our country…. Back then, I wanted to learn whatever Bulloo wanted to teach me. I knew it was important that he wanted to teach me these things. He always told me that wasn’t teaching me for no reason – I had to use the knowledge and pass it on.

H.     WESTERN KANGOULU SOCIETY TODAY

Introduction

417    The beliefs and practices of the Western Kangoulu society today were described in the lay witness evidence, to which I now turn. As discussed earlier, lay evidence was given by nine witnesses who are descendants of Ganggalu people who held rights and interests in the claim area under the laws and customs of the Ganggalu people. The lay witnesses gave evidence as representatives of their respective families and the Western Kangoulu society today.

418    The lay evidence traversed the personal and family histories of the witness concerned. To the extent it was known by the witnesses, the evidence began with life in the mission or reserve to which the witness’s forebears were removed. The evidence revealed the difficulties faced by the witness and their families to return to the claim area. The evidence also revealed the extent to which knowledge of traditional laws and customs was passed down through the generations.

419    As noted earlier, the witnesses used different spellings of the name Ganggalu. Where they did so in their written evidence, that spelling has been reproduced in these reasons.

Lizabeth Johnson

420    Lizabeth Johnson was born on 16 July 1952 in Cherbourg. She is Kangoulu through descent from her father, Bowman Johnson, his mother, Lizzie Thomas, and her mother Hanny of Emerald.

421    Her father showed her where Hanny was born on the banks of the Nogoa River at Emerald at an early age and told her that Lizzie Thomas was born on the banks of Theresa Creek on Glenelg Station. She explained that “in family we talk about our ancestral history and the land that – not belongs to us but that we feel closest to”.

422    Ms Johnson gave evidence standing next to her great-grandmother’s birth tree, which she and her son Hedley Henningsen approached with clapping sticks. She gave evidence that this was:

Out of respect, to let the spirits know we are coming, and to please ask my great grandmother to lend us a little bit of her strength as we go through this process. Also to protect everybody who’s here.

423    Ms Johnson retains a memory of her father also approaching Hanny’s birth tree:

…my dad came in with his sticks, barung, rattling them up to let his grandmother know that he was here, and to please ask for protection from any bad spirits.

424    As a child she played at the tree, and as an adult she continues to visit. She brought her father back to the tree in his later years “for comfort and companionship so that he could come and visit his significant places in country”.

425    Ms Johnson said that under Western Kangoulu law and custom, the only way a person can get rights and interests in the claim area is through descent and adoption. Her father’s adopted, oldest brother, Jack O’Chin, held rights and interests in Western Kangoulu country. Ms Johnson said that a person cannot simply self-identify as Western Kangoulu – they must be recognised as such by a Western Kangoulu family.

426    Ms Johnson said that Bowman Johnson could speak seven different Aboriginal languages and would attend Widi, Ganggalu and Wakka corroborees. He was very knowledgeable about Western Kangoulu country and laws and customs as he grew up around his people in Cherbourg back when people still had camps and spoke their own languages; and he passed on that knowledge, including what he had learned from his mother and father and his eldest brother, Jack O’Chin, to Ms Johnson.

427    Ms Johnson’s family experienced significant repression during the mission era and had no choice over where they lived. Nevertheless, even when forcibly removed to the Cherbourg mission, families remained aware of their proximity to country and camps were set out closest to country. When the opportunity arose, her parents made applications to transfer closer to the claim area. Her father wanted to work on his country, or as close to it as he could, and honour his cultural obligation to family.

428    When families got together, Ms Johnson said there was “always an acknowledgment of who we were, where we came from, our country, significant parts in country, dances and stories for country”. Examples of these were Maywumba, the honeybee dance, which Patrick Malone also recalls being taught, and a corroboree called Gurri Ina Narmi (about picking bunya nuts from the bunya tree and eating them). In cross-examination, Ms Johnson explained that the honeybee dance records how Aboriginal people had been stung by the European honeybee when seeking honey. The State observed that the dance must have been created after the arrival of Europeans (who brought the European honeybee). That may be accepted, but Ms Johnson’s evidence illustrates the continuing custom for Western Kangoulu people to record knowledge and stories in song.

429    Ms Johnson’s father told her that their family’s Ganggalu country is called old Ganggalu country and is west of the Comet River; he did not give her a name for the country east of the Comet River, which she knows today is held by families who identify as Ganggalu and have similar laws and customs to the Western Kangoulu, but who have no interests west of the Comet. Ms Johnson describes Western Kangoulu country as her “blood country” and that she is “very strong for this country”. Ms Johnson said that because ancestral spirits continue to reside in the country, the land cannot be sold or given away. It belongs to all Western Kangoulu people communally.

430    Her father, Bowman Johnson, told Ms Johnson that the Mundagudda, the rainbow serpent, created Western Kangoulu country, making the waterways with its movement and pushing up the Drummond Range which forms the claim area’s western boundary. Ms Johnson learned that the Mundagudda travelled to the waterhole where Lake Maraboon (site 4) is today, on to Policeman’s Lagoon (site 5) and then to Lilyvale Waterhole (site 6), and that it is resting in all three places. Ms Johnson first came to Lilyvale Waterhole with her father when she was six or seven years old. Her father told her that she could not swim where the Mundagudda is resting as these are sacred places. He taught her the Mundagudda dance, which she has taught her children and grandchildren. Ms Johnson respects and protects the Mundagudda and the places where it rests, which if harmed will cause sickness to the person responsible, as well as the Western Kangoulu people for failing in their responsibility to protect those places.

431    Whenever her father took her to the claim area he would introduce himself and his family to the spirits of his ancestors. Ms Johnson also does this whenever she returns to the claim area as she knows it is disrespectful not to, and the ancestral spirits may punish her. She usually does a smoking ceremony to cleanse herself of any bad spirits when she goes back to country. Visitors are cleansed with smoke also. If she has not been to country for a long time she will give her smell back to country, because country knows her. Failure to let the spirits know you have come back means a person could be punished with accident or illness.

432    Ms Johnson learned women’s business from her Aunty Winnie who took seriously her responsibility to pass on knowledge. Aunty Winnie would sing to country, to fish and to trees and would acknowledge spirits in the trees. In the same way, Ms Johnson passes knowledge on to her grandchildren. During cross-examination, Ms Johnson acknowledged that she does not know whether her Aunty Winnie is a Western Kangoulu person.

433    Ms Johnson recognised birthing sites as women’s areas. She also described Policemen’s Lagoon as a special women’s place, which men can only visit in the company of older female family members and exclusively for teaching purposes.

434    Ms Johnson feels the acceptance of her ancestors when she is on the claim area. Her ancestral connection to the claim area means she can speak for it, live, dance, sing and teach there, and take its resources so long as she is not greedy and shares with the other Western Kangoulu families. She described her spiritual connection to country, saying:

Being in Cherbourg is not like the feeling I get going to country. My spirit jumps out there. It's a different feeling altogether. The land welcomes you. On country, there's an overwhelming feeling. My spirit jumps out when I am there. A double endowment: when I go to country, it's like it's waiting for me. Then when I get there, it's like it welcomes you, and you and the land are both complete. My heart opens right up to whatever the spirits are going to deliver that day. I feel elation.

435    Her father told her that if a person is not from the claim area, the ancestral spirits will not know them; they will not be welcome and will suffer harm. To be safe on the claim area, strangers must seek permission from a Western Kangoulu elder and be introduced to the ancestral spirits.

436    Ms Johnson feels obliged to look after and protect the claim area – failure to do so would be disrespectful to the country and the ancestral spirits who would cause her to have an accident or get sick.

437    Other laws and customs that Ms Johnson continues to acknowledge and observe are: not marrying too close – someone who is family, like a first or second cousin; respecting Western Kangoulu elders who have the right to speak for country; and certain funeral rituals including the use of smoke to release the deceased’s spirit back to country.

Hedley Henningsen

438    Hedley Henningsen was born on 23 May 1974 in Brisbane. He is Ganggalu through descent from his mother, Lizzie Johnson, through his grandfather Bowman Johnson, then through Lizzie Thomas to Hannie of Emerald.

439    Mr Henningsen gave evidence at and concerning Hanny’s birthplace (site 2). He was told about Hanny’s birthplace by his Bulloo (grandfather), Bowman Johnson. Bulloo also told Mr Henningsen that Hanny had also been known as Kitty Barber.

440    Bulloo told him that his (Bulloo’s) mother, Lizzie Thomas, was also known by several surnames. Her Aboriginal name was Berrimgoo. She went blind later in life. In accordance with Ganggalu custom, her name was changed when she died - she became Moogara Dilli, which means "dark eye" in Ganggalu.

441    Mr Henningsen said that, under Western Ganggalu law and custom, the only way a person can obtain rights and interests in the claim area is through descent and adoption. He explained that a person cannot simply self-identify as Western Ganggalu – they must be recognised by a Western Ganggalu family. Although Mr Henningsen has Birri Gubba/Widi descent as well, he does not claim rights and interests in that country.

442    In accordance with classificatory kinship norms, Mr Henningsen also called his biological grandfather’s two brothers, Jack O’Chin and Harry Johnson, grandfather or Bulloo.

443    Mr Henningsen attended boarding school and later the University of Central Queensland in Rockhampton. Around that time Bulloo (Bowman Johnson) started calling him Nullung, which means old crow.

444    Mr Henningsen said that Bulloo had a great influence on him and passed on much knowledge, as did his mother and his uncle, Norman Johnson. That included knowledge about Ganggalu laws and customs, as well as songs and dances associated with country. Mr Henningsen also said that throughout his life his mother has told him about Western Ganggalu people, country and customs. She has a lot of knowledge which she has been teaching Mr Henningsen’s children as well. Mr Henningsen frequently teaches his children and grandchildren on country, just as his mother, uncles and grandfathers taught him.

445    From the age of 19 through until he was about 24 or 25, Mr Henningsen’s Uncle Norman took him out to Western Ganggalu and Widi country. During those trips, Uncle Norman pointed out to him the approximate boundaries of Western Ganggalu country. Mr Henningsen described Western Ganggalu country as extending east from the crest of the Drummond Range to the southern portion of the Peak Range and upper reaches of the Mackenzie River and the Comet River, with the north-western boundary extending to and including Lake Theresa, and the southern boundary being south of Hannam’s Gap.

446    Bulloo told Mr Henningsen that Ganggalu people would not cross to the west of the Drummond Range. Instead, Western Ganggalu sent smoke messages to the people west of the range, but messages going east were transmitted by message stick. Bulloo told Mr Henningsen that their country is black water country - the water flows out of the surrounding Drummond and Peak Ranges through black soil country and turns black. It ends up in the Comet River.

447    In the mid-1990s, Bulloo took Mr Henningsen to Hanny’s birth place on the banks of the Nogoa River at Emerald, near a former Ganggalu camp and where scar trees still stood showing the birth of other Ganggalu people. Bulloo also took Mr Henningsen to where Lizzie Thomas (traditionally called Berrimgoo and later Moogara Dilli) was born on the banks of Theresa Creek on Glenelg Station, near a former Ganggalu camp. The scarred tree showing her birth place still remains among other such trees, although it was laying over when they saw it. Skeletal remains found in that area are now held by the Queensland Museum. Hanny’s birth tree was lost during a 2017 flood and Mr Henningsen and others conducted a ceremony to say goodbye to the tree. He gave evidence that: “Although her spirit still remains, we’ve lost that physical connection we had to her”.

448    Bulloo took Mr Henningsen to a number of other birthing trees, and to billabongs called gilgai, which are women’s areas. Mr Henningsen gave evidence:

We’ve always been careful around [this gilgai] … I mean, I don’t go in the water, I don’t fish, I wouldn’t collect anything from here.

449    Describing the significance of these trees, Mr Henningsen explained that during birth, an incision is made in a tree where that person is born:

The afterbirth is put into that tree and then the tree is wound up with kangaroo sinew and vine. That then becomes that person’s birthing tree and every year they come back and celebrate their birth date. If they're lucky enough, they will be buried in the tree too.

450    During cross-examination, Mr Henningsen was asked how he could differentiate between a scar on a tree that was made for birthing purposes and a scar on a tree that was caused by incidental damage. Mr Henningsen explained:

No bark was removed. There’s been an incision in the tree, which makes that mark … So a birthing scar will more or less just be a slit. Most of the generic scars that we see on trees are like Coolamon shapes. What happens on the watercourses is Kangoulu people, when they did scar trees on watercourses, scarred them on the down river side, so that we were aware that anything coming from the top would be a scarf, or a scar caused naturally. Two ways: through the waterway, it will rip the bottom of the trunk off; and through drying. That usually happens with ironbarks more than anything. And they will split and there will be no consistency or uniformity to it and it’ll just be all over the place. Whereas these are neat and consistent and you can tell that they were manipulated by man.

451    Other sites which Bulloo showed Mr Henningsen include: the old Aboriginal camp at Bogantungan where tools and stone fragments made by the old people are still to be found; Fairhills Station, including rock art sites, scar trees and stone arrangements – Bulloo told him that people came from all around to trade at that place; stone arrangements at Tipperary Creek east of Capella and at Expedition Creek; a cave at Expedition Creek where there are baby handprints and footprints; a camp on the northern bank of Lilyvale Waterhole on Crinum Creek east of Capella, west of Fairhills Station and north of Policeman's Lagoon, further camps at Bedford Weir and Mt Pleasant – he described the latter as ‘just like our people left it yesterday’; a large mussel-shell midden at Bedford Weir which, before the weir was built, had been the main place where people crossed the Mackenzie River.

452    Bulloo told Mr Henningsen that Ganggalu people were massacred at the hill at Mt Gobulba beside Lake Maraboon. The massacre was committed as a reprisal for the killings that had occurred at the Cullin-La-Ringo station. Bulloo told Mr Henningsen that their forebears had been camping on Mt Gobulba and dived into the lake to get away from the “white posse” and drowned or were shot in the water.

453    Bulloo also told him that the Mundagudda, the rainbow serpent, lived in Lake Maraboon. Mr Henningsen does not drink or go into the water at Lake Maraboon, both because it is a sacred place and because it is also where his people were massacred. Bulloo told him the water was tainted. The only thing that Western Kangoulu take from Lake Maraboon is ochre.

454    Bulloo taught Mr Henningsen how to identify old campsites. He said that they have large grinding stones, fire places and scar trees. Bulloo told Mr Henningsen about scar trees on their country and explained that trees were scarred for resources, for ceremonial purposes and to guide people. He explained that burial trees are taboo and you will get sick if you go near them; that trees marked with a woman’s symbol high up on the scar are restricted to women only; and that trees marked with a man’s symbol high up on the scar are restricted to men only.

455    Mr Henningsen’s mother and his Bulloo told him the Mundagudda, the rainbow serpent, created the landscape in Western Ganggalu country including the Drummond Range. It travelled from the waterhole where Lake Maraboon is today to Policeman’s Waterhole and then to Lilyvale Waterhole making the sun rise and rest in all three places. Lake Maraboon is the beginning of the Mundagudda dreaming. Lilyvale Waterhole is considered the final resting place of Mundagudda, where Mundagudda laid down and went to sleep after creating the land. Mr Henningsen was taught to respect Mundagudda – he introduces himself and those with him to the Mundagudda at Lake Maraboon.

456    Mr Henningsen’s mother told him about junjaddi – little hairy men who smell like rotten mandarin and who watch you – the good ones will play with children and the bad ones will try to sneak them away. Mr Henningsen knows of a cave painting of a junjaddi in the Peak Range (site 14).

457    Mr Henningsen said that the spirits of Western Ganggalu ancestors in Western Ganggalu country can be good or bad. When Mr Henningsen dies, he believes his spirit will go back to Western Ganggalu country. Like his Bulloo, Mr Henningsen introduces himself to the spirits of his ancestors by calling out or using clap sticks whenever he returns to the claim area so the ancestral spirits do not get “mad with him” and make him sick. He explained that if you take more from the country than you need, it will upset the spirits and you can get sick. It is disrespectful and could be dangerous for strangers to access the claim area without permission from a Western Ganggalu person. Smoke can be used to introduce visitors.

458    Mr Henningsen said that there are places in Western Ganggalu country which are not marked anymore, but where, if he visits, he knows he is in the wrong place. These places include the cemetery at Bogantungan, around Retreat Creek outside Sapphire and Lake Maraboon. He described getting a bad feeling and explained that it is the old people (ancestral spirits) telling him he should not be there.

459    Mr Henningsen continues to hunt and fish on his country. He understands cultural protocols, for example, that people should hunt, fish and take water upstream rather than downstream of sacred places such as Lake Maraboon. He is familiar with bush medicine. For example, he explained that gumbi gumbi, which grows abundantly on his country, is a well-known medicine for treating cuts and sores and for cleansing the body if you are sick.

460    Bulloo told Mr Henningsen that the Western Ganggalu have a responsibility to protect their country. Accordingly, he and other Western Ganggalu have been working to protect country, their culture and their physical links to their ancestors (such as stone artefacts). Their efforts to protect cultural heritage include conducting surveys, clearance processes and cultural heritage assessments. They also protect country through teaching non-Aboriginal people about Western Ganggalu country and why they need to respect it.

461    After a process within his family directed at ensuring the protection of Western Ganggalu country, Mr Henningsen can speak for the Johnson family in relation to the claim area, although decisions are still made by the Western Ganggalu collectively. He says Western Ganggalu can speak for their country; they can live and camp on country, use the country and take its resources so long as they only take what they need and share with the other Western Ganggalu families; they can invite people onto country for ceremony and dance, sing and teach on country. Western Ganggalu cannot sell or give away their country. There are other Ganggalu people east of the Comet and Mackenzie Rivers who have basically the same language, laws and customs but the Western Ganggalu people do not have rights and interests in country east of those rivers.

462    Mr Henningsen said that smoking ceremonies are still conducted in accordance with Western Ganggalu law and custom:

We chant and we smoke and we get people to walk through the smoke, and the chant that we’re singing is the same one my grandfather sang, and I assume it’s the same one his grandfather sang.

463    Mr Henningsen still teaches his children these songs today. He said that Western Ganggalu people would only ever conduct smoking ceremonies on Western Ganggalu land.

464    Other laws and customs that Mr Henningsen continues to observe and acknowledge are: not marrying too close, that is, you do not marry someone who is family such as a first or second cousin; his totems are sand goanna, which was given to him by his mother, and crow which was given to him by Bulloo, which he will not eat and is responsible for protecting and preserving; he understands that elders speak for country – Western Ganggalu must respect them and do what they say; smoke is used at funerals to send a person’s spirit on its way; magical people called “country”, “tall men” or “Kadaitcha” are still about today and can cure you, make you sick or kill you – they can punish you for doing the wrong thing by the ancestral spirits and Western Ganggalu are uncomfortable talking about them.

Patrick Malone

465    Patrick Malone was born on 8 May 1951 in Brisbane. Mr Malone is Ganggalu through descent from Polly Brown/McAvoy, his great grandmother.

466    Polly was removed with her youngest daughter, Maude Joyce McAvoy (Nanna Maudie), from Clermont to Barambah in 1916. Polly’s elder daughter, Jessie, was removed from Kilkullen Station north-east of Clermont to Barambah in 1926, where her first child, Hedley, was born. In 1928, Jessie married Lenny Malone at Cherbourg and he adopted Hedley and they had three other children, Priscilla, Lennard (Mully) and Maude Mona Malone, who was Mr Malone’s mother.

467    Mr Malone said that he was raised to know his people and his connection to them even though at times they were moved about or controlled under the Protection Acts. That connection goes back to their old ancestors:

We say to each other “you're my people” or “you’re my blood”. That’s the Malone family the Roberts, Johnson and Bradley families. There are O’Chins in the Johnson family - old Jack O’Chin was adopted by Lizzie Barber. Old Chinny’s family have always been connected to us.

468    Mr Malone explained that over the years families have used different spellings “for who we are” and that, while his family uses Ganggalu, “we’re all the same mob”.

469    In accordance with classificatory kinship systems, Mr Malone called Polly’s brother Grandfather Dilbin. Grandfather Dilbin was removed from Emerald for “being a nuisance in the town especially to the women”. In around 1922, Grandfather Dilbin was involved in an incident at Cherbourg, where he and two other men took tribal retribution on a “clever man”, or “clever murri”, who they believed had killed their wives. To ensure that the man’s power would be taken away from him, the three men followed cultural protocols: Grandfather Dilbin had held the man’s head while the others twisted his body, they then replaced his innards with stones, sewed him up and threw his body into Barambah Creek at the waterhole where the Mundagudda lives. They were all charged with murder. At their trial, their defence was that the clever man was carrying out traditional killings by “pointing the bone”. The three men’s wives had been killed in this way. Grandfather Dilbin was removed to Palm Island for 20 years at the mercy of the Protector of Aborigines, with no conviction recorded.

470    Grandfather Dilbin talked to Mr Malone about spirits and junjaddi. He died when Mr Malone was 12 years old. Mr Malone says that after Grandfather Dilbin died, his spirit showed itself to him, in the hallway between bedrooms, standing there in his army hat. Later, when Mr Malone was staying in Grandfather Dilbin’s old room at his cousin’s house, the old man did not disturb him because ‘his spirit was at peace’.

471    Mr Malone lived many of his early years in dormitories at Cherbourg with his mother and Nan Maudie, who had a major role in raising him. His mother always taught him that Cherbourg was not his country and that their family was from around Emerald and Clermont. When he was around nine years old, his mother moved to Capella and Mr Malone moved in with his Uncle Mully at Cherbourg.

472    Patrick Malone said that descent and adoption are the only ways to get rights in Western Ganggalu country. He also has ancestral connections outside of the claim area – to Clermont-Belyando through Charlie McAvoy and to Alpha through Jack Malone. Mr Malone said that, whereas Western Ganggalu people accept people by adoption, Clermont-Belyando people only accept membership of their group by blood descent.

473    Patrick Malone knew about the Ganggalu and other different groups living at Cherbourg from a young age. He learned to hunt and about Ganggalu laws and customs from Uncle Mully and other knowledgeable Ganggalu people who continued to talk about their laws and customs in language, quietly away from the gaze of white managers. He remembers one old man, Old Porker, heating his hands from the fire and massaging a child’s legs to strengthen them because she was taking time to walk. He said that was an old tribal way of fixing her.

474    Mr Malone’s evidence was that Uncle Mully told him when he was young that their totem was the long-neck turtle, which they could not eat. Other older men told him that the honeybee and eagle hawk were also his totems as he was from Clermont/Emerald. He learned the honeybee song and dance from Uncle Mully and others. Mr Malone said that he still knows and performs that dance today:

Western Ganggalu people of my generation with the honey bee totem do the dance whenever we get together for a celebration. There is a Western Ganggalu children's dance group at Emerald. I feel responsible to show them that dance.

475    In Cherbourg, Mr Malone also learned about the spiritual potency of the creation being, Mundagudda, and ancestral spirits. He learned to call out to ancestral spirits and to use smoke to move on malevolent spirits or to prevent them from following him home. Unfriendly ghosts called yoongees live in the bush; children stayed in at night because the mischievous junjaddis would coax them away, and he learned to be wary of Kadaitcha or “tall men”.

476    Mr Malone ran away from Cherbourg when he was 15 years old and reconnected with his mother in Brisbane, who reminded him he was Ganggalu and that the Malones, the Hegartys, the Harrisons, and Johnsons and Bradleys are Ganggalu families. Family members assisted Mr Malone when he was a young man making his way in the world, including Aunty Priscilla, Nanna Maude, Uncle Hedley Malone, Lennie Junior and Gary Malone, Uncle Mully and Uncle Bowman Johnson.

477    Mr Malone describes Bowman Johnson as his mother’s brother and a Ganggalu and Birra Gubba man who spoke in language and was very knowledgeable. Throughout his life, Bowman Johnson was a significant person and source of information for Mr Malone.

478    Mr Malone first went to the claim area around 1967 while he was living with his Aunt Priscilla at Rubyvale, Sapphire and Emerald. She took him to the old campsite on the junction of Theresa and Sandy Creeks (site 37). Soon after, he commenced working on the railway from Rockhampton to Emerald and for two years lived in rail camps from Gracemere to Comet, including in the claim area, with other Ganggalu people who joined him fishing and hunting on the Mackenzie and Comet Rivers in accordance with Ganggalu laws and customs.

479    Mr Malone visited Bogantungan with Uncle Mully in around 1967 where Uncle Mully told him that he would be able to see from Hannam’s Gap how the Mundagudda created the Drummond Range and that the top of the range was the western extent of Ganggalu country. Uncle Mully told him that the valley hewn by Mundagudda was used as a trading route prior to European settlement. Later, Cobb & Co followed the same trade route and now the road does the same.

480    In the late 1960s, Mr Malone went with Uncle Mully and two cousin-bothers, Gary and Lennie, to where the Fairbairn Dam was being built to create Lake Maraboon. Uncle Mully told them about the massacre of more than 300 Ganggalu men, women and children at Gobulba Hill where they were forced into two lagoons. He said he would never fish or camp in this place because:

There’s too many bad spirits here … we’ve got people there that their - their spirits haven’t put to - put to rest. Nothing’s ever been - ever been done. For years and years old people talked about how there were - how there were bones, skulls and things still laying in that - in those lagoons until the lake filled up and covered them over. So … I just think there’s too many - too many bad spirits here and something needs to be done to cleanse - cleanse the spirits you know, somehow or other.

481    Mr Malone will not disturb the Mundagudda resting in Lake Maraboon, Policeman’s Lagoon and Lilyvale Waterhole. He said that there will be consequences for those who cause the disturbance as well as Western Ganggalu people for allowing it to happen. He believes the Mundagudda rests in large waterholes where the water is calm and it will drown you if you swim where it is resting.

482    Mr Malone said that, when he is on country, he can “feel the spirits of our ancestors”. Mr Malone said that the first time he went to the Fairhills stone arrangement he could feel the old people (ancestral spirits):

They had put that place there. It’s an initiation site. I just knew. I learned from when I was a boy about initiation grounds where boys became men. Initiation is men's business.

483    Although Western Kangoulu people no longer practice any initiation procedure, ritual or ceremony, Mr Malone said older group members “try to get the young kids out on-country as much as we can and let them learn about country and … what our laws, what our customs are and what they can and can’t do – yeah, and take them to some places where they can observe some of those things too”.

484    In 1975 or 1976, Mr Malone travelled with Nanna Maudie through Capella where she told him that she grew up in the country around the Peak Range before she was taken to Cherbourg. She told him the Peak Range was a border of their country and bottle trees growing from Emerald to Clermont were significant to Ganggalu people. Nanna Maudie also pointed in the direction of the camp at the junction of Theresa and Sandy Creeks (site 37), which she said was used by Ganggalu people fleeing the Cullin-la-Ringo reprisals. People with whom Mr Malone worked on the railway in the 1960s had also told him about that camp.

485    Mr Malone said that when a person dies, one of the old people (ancestral spirits) “will come and meet you so … they can take you and introduce you to all … the past ancestors and … fit you in with … our ancestors”. He gave the example of his youngest cousin-sister being aware of her father’s distinctive odour in the room when her brother died:

…she said at the time just when Danny passed, "I can smell dad" and that meant to us or to her that he was there too. He was there and in the room at the time when that happened.

486    Patrick Malone believes that when he dies, his spirit will return to the claim area. He sees the claim area as imbued with the spirits of his and other Western Ganggalu people’s ancestors and he observes the law that he must let those spirits know when he is there and introduce strangers to them. Failure to do so can have serious consequences for strangers and Western Ganggalu people who are responsible for looking after and protecting their country. Smoke is used to free spirits and cleanse people who may be carrying a bad spirit.

487    Mr Malone said that Uncle Mully told him that if you see a white bird circling a house at night, it means someone has died. It is different to the willy wagtail, which is a messenger bird. Uncle Mully would never let Mr Malone and the family sweep after dark - he said that stirred up the spirits of the old people. He told Mr Malone that you don’t whistle at night as that will upset the spirits of the old people. During the on-country hearings, Mr Malone said eagle hawks followed the Court around and that was a sign they were supporting the applicants in what they are doing.

488    Mr Malone said that, as the descendants of Polly, the Malone family can speak for all of the claim area, hunt, fish, carry out ceremony, camp and do just about anything on the claim area as long as they follow Western Ganggalu laws and customs such as not taking too much and sharing. Mr Malone has fished, collected mussels, hunted kangaroo, porcupine, plain turkey, sand goanna and collected honey on the claim area.

489    Mr Malone says Western Ganggalu country extends east from the top of the Drummond Range to the Peak Range and Mackenzie and Comet rivers, south to a mountain range near Springsure and includes the Nogoa River, Theresa and Sandy Creeks and Lake Maraboon. There are other Ganggalu families who have similar laws and customs to those of the Western Ganggalu, but their rights and interests do not extend west of the Mackenzie and Comet Rivers. Mr Malone said that the Western Ganggalu and the Ganggalu families east of the Mackenzie and Comet rivers each have separate rights, interests and responsibilities delineated by those rivers.

490    Other laws and customs that Mr Malone continues to observe and acknowledge are: not marrying too close; his totems are honeybee, long-necked turtle, eaglehawk and emu, which he will not kill or eat and which watch over and communicate with him; Western Ganggalu people must respect and consult with elders about things that affect them and their country and follow what they say; smoke is used to “move spirits on” – Western Kangoulu people smoke strangers to introduce them to country and to get rid of any bad spirits they might have brought with them.

491    Patrick Malone is the Chairman of Lumburra Bimbi Pty Ltd (Lumburra Bimbi), which is a corporation established for the Western Ganggalu people. He has held that position since the establishment of Lumburra Bimbi in 2011. Lumburra Bimbi is the Cultural Heritage Body for Western Ganggalu country, registered under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA). He is also a member of various cultural heritage committees who make sure cultural heritage management agreements with mining companies and other developers who have projects in and around Western Ganggalu country operate correctly.

Jonathon Malone

492    Jonathon (Jonno) Malone was born in Rockhampton on 25 February 1977. He is Kangoulu through descent from his father, Patrick Malone, through to Polly McAvoy (also known as Polly Brown).

493    Mr Malone grew up knowing the Johnson, Roberts and Bradley families – they and the Malones recognise each other’s ancestral connections to Western Kangoulu country. The Duggans are similarly recognised, but Mr Malone does not know of any living Duggan descendants. Mr Malone says that a Western Kangoulu person must be recognised as such. Descent and adoption are the only ways to get rights in Western Kangoulu country. All Western Kangoulu people share rights across their country.

494    Mr Malone learned about the boundaries of Western Kangoulu country from his father Patrick Malone, his Uncle Norman Johnson, and Hedley Henningsen. He learned that Mundagudda created the claim area including the Drummond Range in the west and is resting in Lake Maraboon/Mt Gobulba Waterhole (sites 1, 4), Policeman’s Lagoon (site 5) and Lilyvale Waterhole (site 6); Theresa Creek, including Lake Theresa, and Sandy Creek run through the north-west of Western Kangoulu country; the Peak Range, where junjaddi are numerous, is the north-eastern boundary; the Mackenzie and Comet Rivers meet near an old Ganggalu campsite at Riley’s Crossing (site 29) and are the eastern extremity of Western Kangoulu country; the Minerva Range and the Snake Range (which holds ancestral graves) are in the southern extremity of their country.

495    Mr Malone said that Western Kangoulu people have always spoken about their country by reference to rivers and mountain ranges. His father told him that Sandy Creek is important to their family and that the Drummond Range is full of artefacts including stones, grinding plates and grinders. His father, Norman Johnson and Lizzy McAvoy told him that Hannam’s Gap, west of Bogantungan and in the south of the Drummond Range is where the crossing is (into neighbouring country). His father also told him that he (Patrick Malone) had learned that the Peak Range is the north-eastern boundary of Western Kangoulu country from Nanna Maude (the sister of his grandmother Jessie), Aunty Mema Hegarty and Uncle Bowman.

496    Mr Malone said that his father brought him to the claim area in the early 2000s, showing him his country and teaching him cultural protocols. His father introduced him to the spirits of his ancestors and explaining that he must be respectful whenever he enters his country and introduce himself to his ancestors’ spirits.

497    In 2011, Mr Malone spent four months conducting the cultural heritage survey and site monitoring for the NBN cable between Bogantungan and Emerald. Uncle Norman Johnson insisted on accompanying Mr Malone, and there were many opportunities for the two men to go out on Western Kangoulu country on their own. At the Drummond Range, west of Bogantungan, Uncle Norman pointed back to the east and told Mr Malone it was Western Kangoulu country. He said that Hannam’s Gap was part of the old pathway for their people to visit the mob in the west. He said Mundagudda made the Drummond Range. Driving from the Willows Gemfields towards Springsure, at the turn-off to Glenlee, Uncle Norman pointed out the Snake Range and spoke about caves used for burials for their people. He said the Mundagudda was in the waterholes along the Nogoa River west of Springsure but because of the Fairbairn Dam and the weirs along the Nogoa, many of those waterholes are now under water. At Cullin-La-Ringo station, Uncle Norman reminded Mr Malone about what their people had done to the European settlers there and identified it as an important place, as it showed that their mob had tried to push the settlers out of their country.

498    Mr Malone is aware of important and sacred sites in and falling outside the claim area. In particular, he is aware that at Gobulba Hill and Lake Maraboon, about 20kms southwest of Emerald, his ancestors were massacred as a reprisal for the killing of European settlers at the Cullin-La-Ringo station. He said that the Malones, and other Western Kangoulu people, have always talked about the massacre. Mr Malone learned about the massacre from his father and others like Hedley Henningsen and Uncle Marshall Saunders. Mr Malone regularly visits the massacre site to pay his respects and takes his children too:

I introduce myself to the spirits of the old people who were killed there. Tell them who I am, why I am there. Western Kangoulu people know to do this. We must be careful and respectful. Dad says to people who haven’t been before that when you go out there it is going to be heavy on your heart. It really affects our elders. We have to look after them and not hang around if they want to go. Also, if you hang around there too long the spirits of the old people out there might follow you home.

499    Mr Malone does not camp or fish at Lake Maraboon, but he does collect ochre for art and for cultural purposes. He said that family do not stay long in that place, but only “come down and do what we need to do and go”.

500    Mr Malone is aware of a number of stone arrangements on his country and has taken steps to protect them. He said that stones can only be moved when an elder says it is alright to do so. His father and other elders taught Mr Malone that bora rings (ceremony grounds) are off-limits to females. They can be nearby but not at the part that is for men.

501    Mr Malone said that links in his country to ancestors are everywhere. The tools and paintings they made, the trees they scarred. He said they are all very important and he described feeling responsible to protect and preserve them. He is aware that ancestors are still out there in the country and that if people don’t look after it, and what is in it, they will become angry. There will be bad luck. Bad things might happen. People might get sick. He described this responsibility as “all about respect for our old people”.

502    Mr Malone said that when people pass away, wherever they were when they died, their spirit goes back to their traditional country. When a person dies, their ancestors need to recognise them. If you don’t know your ancestors and your country, then they won’t recognise you. Your spirit will be Yumba Gurra – homeless. He described that as very sad.

503    When he visits important sites, Mr Malone knows to follow the rules that were taught to him by his elders:

When you are around sacred places, you don’t urinate or spit. If you do, the old people could follow you home … When you arrive at the site, you call out to the ancestors. Let them know who you are and why you are there; that you are there to do the right thing. We call it Jitera. We always say goodbye on the way out; waddamooli. Before we leave, we smoke ourselves to cleanse, so that we don’t leave anything behind that would affect the spirits at the site and so the old people don’t follow us home. We rub the dirt and ash from the fire on our skin and don't take it off until we are home.

504    Mr Malone said that he feels the presence of his ancestors in the claim area – he feels at home when he is there and that he belongs. He believes that when he dies, his spirit will join those of his ancestors in the claim area. He observes the law and respects his ancestral spirits (or “old people”) by caring for and protecting the claim area, being respectful on country and introducing himself and those who accompany him to his ancestral spirits. He is concerned that there will be serious consequences for strangers and Western Kangoulu people if the ancestral spirits are not shown this respect.

505    Mr Malone gave evidence about creator and other spirits in Western Kangoulu country. He said that Biami is the creator. The Mundagudda is the rainbow snake. It created the landscape. It comes out of the waterholes and goes back down again. It is in Lake Maraboon, Lilyvale Waterhole and Policeman’s Waterhole on Crinum Creek. Mr Malone said that you have to pay respect to Mundagudda. Mr Malone will not allow Mundagudda’s resting places at Lake Maraboon, Policeman’s Lagoon and Lilyvale Waterhole to be disturbed as the person causing the disturbance may get sick and something bad may happen to him or someone close to him for not preventing the disturbance. Mr Malone’s father told him about the junjaddi, little hairy men who live in the claim area and can lure children away. Mr Malone said there is rock art of the junjaddi in caves in the Peak Range: “you can see the children’s hands and the children’s feet and the adults hands above it. And it’s … next to the junjaddi.’. He explained that children cannot be left crying at night as this might attract junjaddi:

… the junjaddi may think that that child is in danger or something and come along for that reason and take that child away as well. So there’s all – yes, don't leave them alone, crying at night, there’s being respectful to your own mob.

506    Mr Malone gave evidence about hunting and using the resources of Western Kangoulu country. He said that “porcupines” are everywhere on Western Kangoulu country, are easy to catch and are their favourite food. Mr Malone also eats the burrun berry bush which is all over Western Kangoulu county, and said that there are dognut trees and “plenty of native cucumber out there” as well. Mr Malone said that Western Kangoulu people take water from the creeks and rivers as well as springs (such as the spring at Mt Schofield and a spring that flows into Medway Creek near Bogantungan). He said that there are also freshwater crabs. Mr Malone said that brigalow is a good hardwood used for boomerangs, clap sticks and digging sticks.

507    Mr Malone said that all Western Kangoulu families can use country or speak for it, because “it is our ancestors’ country”. Mr Malone explained:

Speaking for country means we can use the country and what is in it, so long as we follow our laws and respect our old people. We have to look after and protect our country. We can’t be greedy with what we take. You have to make sure that the country can provide for those who come after you. And you should share what you get.

508    Other laws and customs that Mr Malone continues to observe and acknowledge are: not marrying too close, someone who is family like a first or second cousin; his totem is eagle hawk which connects him to Western Kangoulu country and which he will not eat; elders, such as his father, must be respected and have a key role in passing on traditional knowledge and in the group’s decision making; he will not go close to women’s places like birthing sites and women should not access a men’s initiation site; smoke is used to cleanse people when they come to Western Kangoulu country – the smoke “moves on any bad spirits”.

509    Since 2011, Mr Malone has been the co-ordinator of Lumburra Bimbi which manages activities in the claim area to protect Western Kangoulu country and objects. From the early 2000s to 2011, he had roles in the Moonda Gudda and Ghungalou Aboriginal Corporations which had similar functions. Mr Malone says this work has enabled him to focus on protecting and preserving Western Kangoulu people’s cultural heritage and work on economic and community development for his people.

Cheyne O’Chin

510    Cheyne O’Chin was born in Brisbane on 27 June 1963. Mr O’Chin is Kangoulu through descent from his father, Edgar Broome, Edgar’s mother, Laura Bradley, and Laura’s father, John (Jack) Bradley.

511    Mr O’Chin was adopted by Edgar Broome as a child. He is the oldest of his siblings, who include Cynthia Broome. His mother, Veronica Broome, was one of Jack O’Chin’s daughters and she was Ganggalu through the Johnson family because her father was adopted by Abraham and Lizzie Johnson. As noted earlier, Cheyne O’Chin changed his surname to O’Chin (from Broome) later in life to fulfill a promise he made to his mother, Veronica, to keep her family name alive.

512    Mr O’Chin said that descent and adoption are the only ways to get rights in Western Kangoulu country and, although both of Mr O’Chin’s parents are Western Kangoulu, he “follows his father’s side” because of what Edgar taught him about Western Kangoulu country.

513    Mr O’Chin grew up knowing that the Malones, Bradleys, Johnsons and Roberts are all Kangoulu people connected through their ancestors to Western Kangoulu country and that they all follow the same rules for their country. All the Western Kangoulu families can speak for Western Kangoulu country. Mr O’Chin explained that if your family can speak for country, you can use the country and hunt and fish or take other food or medicine, so long as “we follow our rules”.

514    Mr O’Chin was taught that Western Kangoulu country extends from the Drummond Range to the Peak Range and Mackenzie River and down south to the Minerva ranges and Ebenezer State range. Clermont is to the north of Western Kangoulu country and Springsure is to the south.

515    When Mr O’Chin was growing up, his father, Edgar, told him about Biami, who is the spiritual creator of all other things, including Mundagudda, the rainbow serpent. His father also told him about how Mundagudda shaped the land and made the ranges and the rivers and countries for the different tribes.

516    Mr O’Chin’s father taught him that, when he goes onto “our country”, he has “to talk to the old people, our ancestors, to let them know who we are and what we’re there for”. Mr O’Chin said that if they did not do that, they could get sick or have bad luck or something bad might happen to them. He said that the old people would look after them, but they needed to show them respect by letting them know that they were there. His father also taught him that visitors to Western Kangoulu country needed to be introduced to the old people (ancestor spirits) by Western Kangoulu people, otherwise they may become sick. That should be done by the elders, who have the knowledge and know the most about responsibility to look after country and people. Mr O’Chin explained that Western Kangoulu people use smoke to introduce visitors to country to make sure they do not bring bad spirits with them.

517    Mr O’Chin frequently went hunting with his father. When they hunted on other people’s country, they did so with the permission of the elders for those places who would go with them and make sure that they did not offend the ancestral spirits in that country. Mr O’Chin’s father taught him that, when hunting, you must only take what you need, you should not kill younger animals, you must eat what you kill, and you should always share the food you get.

518    Mr O’Chin’s father told him that there was a massacre of Aboriginal people near to Lake Maraboon and, as a result, Mr O’Chin will not fish at Lake Maraboon.

519    Mr O’Chin’s father told him about the junjaddi, little hairy men who live in country and if you do the wrong thing, they can follow you home and choke and torment you, or lead you away to get you lost. One of Mr O’Chin’s brothers was led away by a junjaddi.

520    Mr O’Chin’s father also told him about “tall men” (which other people call clever men, kadaitcha or featherfoot). Mr O’Chin was taught that “tall men” are people who have special powers to travel from one place to another and that, if you have done something wrong, they will be sent to find you for payback. Mr O’Chin believes that his father became sick from “black magic” from a tall man when his father visited the Northern Territory.

521    In 1993, a few months before he died, Mr O’Chin’s father told him that he wanted to take him to Mr O’Chin’s father’s mother’s country. Mr O’Chin’s father was sick and wanted to see his country and speak to his mother again before he passed away. Mr O’Chin said that, as he was the oldest, his father wanted him to know that he was passing the responsibility to Cheyne to “take on that country”. His father took Mr O’Chin to the former Western Ganggalu camp on the bank of Theresa Creek where Laura Bradley had camped (at Glenelg Station, site 34). His father told him that Granny Laura had been back there a few times herself and twice with Edgar. His father introduced himself to the ancestors by touching the water and wetting his forehead to let the old people know he was there. He told Mr O’Chin to do the same thing. Mr O’Chin explained that: “You have to respect the old people in the country, introduce yourself and tell them what you are doing there”. Mr O’Chin said that, during the trip, he knew he was in his own country. His father told him that he could not fish in the adjacent waterhole as it was a special place, a women’s birthing place, which he understood to mean that men should not go there.

522    Mr O’Chin knows that the Kemps, Lawtons, Leishas and Chernsides are Ganggalu families responsible for country on the eastern side of the Comet and Mackenzie Rivers and they have similar laws and customs to those of the Western Kangoulu.

523    Mr O’Chin said that it is important to pass on knowledge about traditional laws to young ones and that he has passed what he knows on to his brothers and sisters and to his children. He said that his Uncle Jumbo (his father’s brother) passed on a lot of knowledge to Mr O’Chin’s brothers and sisters as well, and that Uncle Jumbo was an important part of their lives.

Cynthia Broome

524    Cynthia Broome was born at Longreach on 30 September 1969. Ms Broome is Western Kangoulu through descent from her father, Edgar Broome, his mother, Laura Bradley, and her father, Jack Bradley. Ms Broome is also Western Kangoulu through descent from her mother, Veronica Broome, and her father, Jack O’Chin, who was adopted by Abraham Johnson and Lizzie Thomas. Ms Broome said that descent and adoption are the only ways to get rights in Western Kangoulu country. Ms Broome has eight brothers and sisters.

525    Ms Broome gave evidence about growing up with many Western Kangoulu families. She spent her first few years in Winton and moved around after that. At that time, her Nan Laura lived with the family. Ms Broome’s first memories are about living at Wondai, near Cherbourg. She remembers visiting family at Cherbourg from a young age, including Nan Maudie. Later, the family moved to Woorabinda (“Woorie”), where her father worked in the sawmill. Ms Broome’s father and her Uncle Jumbo (her father’s brother) told her that, in the early days, when people were moved to Woorie, they would live together. People who knew how to talk to each other would stick together. Nan Laura and her family lived down by the back of the creek at Woorie.

526    Ms Broome said that sometimes her father would speak “in lingo”. He told her that his father, John Gee Gee, worked as a black tracker for the police. She was told that after her grandfather’s death, he came back as a curlew and there was a story that he would come back to take the oldest son of his children. Nan Laura put salt around her brother Edgar’s cot to prevent the curlew from taking him.

527    Ms Broome said that Patrick Malone, and the Johnson family, were always part of her life growing up. Her family used to call Bowman Johnson “Grandad Bowman” and his son, Duncan, “Uncle Dunky Do”.

528    Ms Broome was taught that all Western Kangoulu people have rights and interests in the whole of the claim area.

529    Ms Broome believes that when Western Kangoulu die, their spirits return to Western Kangoulu country and the spirits of her ancestors are there today. She said she knew she was at home and being watched over and protected by the ancestral spirits when she was living in Emerald.

530    Ms Broome introduces herself to the ancestors when she goes to Western Kangoulu country after an absence because, if she failed to do so, the ancestors will harm her. She said that people who are not Western Kangoulu should be introduced by a Western Kangoulu person to the ancestral spirits in Western Kangoulu country if they want to go onto that country – bad ancestral spirits will follow visitors back home or the visitor may have an accident or die if they go onto Western Kangoulu country without permission. If Ms Broome went to other people’s country, she would ask the owners for that country to introduce her to their ancestral spirits, otherwise, she will have bad luck, get hurt or be followed home by a spirit.

531    Ms Broome said that Western Kangoulu people cannot sell Western Kangoulu country because it is not theirs to sell – it belongs to the ancestors.

532    Ms Broome said that, so long as they follow their laws, Western Kangoulu people can speak for, live on and take and use resources of, Western Kangoulu country. She said that Western Kangoulu people should only take those resources they need and share what they get. Ms Broome believes that Western Kangoulu people have a responsibility to protect Western Kangoulu country and, if she fails to do so, the ancestral spirits would harm her or a member of her family.

533    When she was growing up, Ms Broome learned about the Mundagudda, the rainbow snake, who created the rivers and creeks and then went to sleep and is still out in country, sleeping. Ms Broome said that Lizabeth Johnson told her it is resting in Lilyvale Waterhole and Policeman’s Lagoon. Ms Broome knows of the junjaddi, small hairy men who play with children and can trick you – one coaxed her brother Steven away, but a good junjaddi brought him back. Ms Broome was also taught that there are “tall men” who travel and who are able to kill people if they have done wrong.

534    Ms Broome said that the willy wagtail is a messenger bird and will tell you when visitors are coming. Ms Broome’s totem is the owl which she will not harm or eat. She was also told that the owl will guide you home.

535    Ms Broome knows there are places on Western Kangoulu country where there are restrictions on male or female access, but is not comfortable discussing it.

536    Ms Broome observes and acknowledges other Western Kangoulu laws and customs: family members are called by classificatory names; night time is associated with bad spirits, and therefore certain activities are not carried out at night; elders are to be respected and obeyed; men teach men's business and women teach girls; when hunting, you should not take more than you need and you should share what you get; it is not permitted to marry cousins and elders have the knowledge to tell people whether a person is too close to marry.

Karen Broome

537    Karen Broome was born at Bundaberg on 3 January 1968. Ms Broome is Western Kangoulu through her descent from her late mother, Priscilla Broome, through her father, Ivan Roberts, through his mother, Nellie Roberts, to Nellie Robert’s mother, Nannie.

538    Ms Broome’s mother, Priscilla, told her that she (Priscilla) was Kangoulu and that she learned about her country and Kangoulu rules from her old people, especially her father. Ms Broome said that her mother passed that on to her and that she is doing the same with her children.

539    Ms Broome said descent and adoption are the only ways to get rights in Western Kangoulu country – Western Kangoulu elders know who is from a Western Kangoulu family. Although she is a Broome through her father, she follows her mother’s side for country. The Roberts family share all Western Kangoulu country with the Johnson, Malone and Bradley families – these families have always been close. Ms Broome does not know of any other families who have rights and interests in Western Kangoulu country. So long as they follow their laws, Western Kangoulu people have the right to use Western Kangoulu country for living, camping or teaching and take and use its resources.

540    Ms Broome’s mother told her that Western Kangoulu country is west of the Comet River and includes the Peak Range, the Nogoa River, Sandy and Theresa Creeks, the Mackenzie River, Lilyvale Waterhole, Policeman’s Lagoon and country around Emerald and Capella. Her mother told her that the junction of Sandy and Theresa creeks was an important place and that Granny Nellie had told her that she was from Sandy Creek, Theresa Creek and the Nogoa River.

541    Ms Broome introduces herself to the “old people” (the ancestral spirits) whenever she goes to Western Kangoulu country. Being there makes her feel good. If she failed to introduce herself to the ancestral spirits, she, or another family member, could get sick. Ms Broome said that people who are not Western Kangoulu should get permission from the Western Kangoulu families and be introduced to the spirits if they want to go to Western Kangoulu country – the spirits will make visitors sick or have an accident if they go onto Western Kangoulu country without permission. If Ms Broome goes to other people’s country, she will first get permission to do so from the people from that country. Western Kangoulu people use smoke to chase away bad spirits or help a spirit on its way at a funeral. Smoke is also used at welcoming ceremonies.

542    Ms Broome said that Western Kangoulu people cannot sell or give away Western Kangoulu country because it is their ancestral country and they are responsible to protect it and keep it for the following generations – the ancestral spirits would make them sick if they tried to sell their country. Western Kangoulu families speak for the whole of Western Kangoulu country and are responsible for its protection.

543    Ms Broome said that Western Kangoulu people can fish and hunt and take the resources of Western Kangoulu country. Ms Broome was taught about the berries that can be eaten and about taking long-necked turtles from the creeks. Ms Broome likes to eat “porcupine” with damper, and has been fishing near Capella and in the Comet River near Emerald.

544    Ms Broome will not fish or swim at a place where the Mundagudda is resting, so she would not fish in Policeman’s Lagoon, Lilyvale Waterhole or Lake Maraboon. It is not right for a person to dig up or destroy Policeman’s Lagoon or Lilyvale Waterhole as the Mundagudda is resting in those places. If this occurs, she believes the ancestral spirits would deal with the person responsible and torment the Western Kangoulu.

545    When she was a child, Ms Broome was told that if she was naughty, the junjaddi, little hairy men, would chase her, and she continues to believe that junjaddi are about.

546    Ms Broome observes and acknowledges other Western Kangoulu laws and customs: elders must be respected; She knows not to marry persons who are too close, like cousins; Western Kangoulu people use smoke to chase away bad spirits or to help the spirit of a person on its way at a funeral; Western Kangoulu people also use smoke to welcome people to country and introduce strangers to the ancestors.

547    Ms Broome feels responsible for caring for Western Kangoulu country and keeping it for the next generations.

Priscilla Broome (dec)

548    Priscilla Broome was born at Rockhampton on 9 April 1945 and died on 26 December 2015. She was Kangoulu through her descent from her father, Ivan Roberts, and his mother, Nellie Roberts. Her mother, Clare Saunders, was Gunggari, however Ms Broome followed her father’s Kangoulu side for country.

549    Ms Broome went to live at Woorabinda with her family when she was about 6 years old. When she was about 12 years old, she moved to Clermont to live on the banks of Sandy Creek with Granny Saunders, her mother’s mother. She remembered Granny Laura (Laura Bradley) from her time in Clermont because Granny Laura had moved to Clermont from Woorabinda and was living on the opposite bank.

550    When Ms Broome was young, her dad (Ivan Roberts) was sent to Palm Island from Woorabinda. Because of this, Ms Broome learned about Kangoulu country and laws and customs from Granny Nellie, who spoke some Kangoulu. Ms Broome remembered that when she was younger, her mother and Granny Nellie would talk about the towns in Kangoulu country such as Emerald and Capella. Ms Broome said that she grew up knowing that it was her country as a Kangoulu person.

551    Ms Broome visited Emerald on many occasions throughout her life, including when she was young when Aboriginal people lived in huts on the banks of the Nogoa River and she fished in the Nogoa River and hunted around Emerald. She did not need permission to fish in the Nogoa River or hunt and take resources around Emerald because it was her ancestors’ country. Ms Broome said that, when her family camped at Emerald, they would use the water from the Nogoa River for cooking, washing and drinking and would light fires if they needed to cook things such as “porcupine”. She said that they would only eat “porcupine” in winter time when they are fat. When she was young, Ms Broome collected little black purple berries for eating, and she was taught that prickly pear is good for healing.

552    Ms Broome always strongly believed that the spirits of her ancestors are in the country. When her son died, his spirit visited her. She was taught she had nothing to fear on her country if she introduced herself to her ancestral spirits, the “old people”. She would be scared on someone else’s country if she did not have permission to be there. If people who are not Western Kangoulu take things from Western Kangoulu country they will get sick. Her grannies taught her to use smoke to remove bad spirits from people and places.

553    Ms Broome passed her knowledge on to her children. She participated in cultural heritage processes to protect Western Kangoulu country and encouraged her children to do so as well.

Vassa Hunter

554    Vassa Hunter was born at Palm Island on 27 May 1947. Ms Hunter is Western Kangoulu through her descent from her father, Harry Johnson, his mother, Lizzie Johnson (nee Barber/Thomas) and whose tribal name was Mugura, back to Hanny of Emerald. In her statement, Ms Hunter also used the spelling “Ghangolou” to reflect how her father and uncle pronounced the name, and alternated between the spellings “Kangoulu” and “Ghangolou”. For simplicity, this part of the reasons will use the spelling “Kangoulu” even where Ms Hunter used the spelling “Ghangolou”.

555    Ms Hunter’s grandmother, Lizzie, was married to Abraham Johnson and they had two children, Harry Johnson (Ms Hunter’s father) and Bowman Theodore Johnson, and they also adopted two children (referred to below). Ms Hunter said that Granny Lizzie had a brother and sister, Grandad Charlie and Granny Jessie. Granny Lizzie visited them at Palm Island. Ms Hunter lived much of her early life on Palm Island. Because of this, she does not have a detailed knowledge of the boundaries of Kangoulu country, but she was told by her granny, Dolly Duggan, and her father that her great grandmother, Hanny, was from around Emerald and there were other Kangoulu in the east.

556    As Ms Hunter’s grandfather, Abraham Johnson, was Birri Gubba/Widi and her Granny Lizzie was Kangoulu, her father (Harry) identified as both Kangoulu and Birri Gubba/Widi, as she also does.

557    Ms Hunter remembers her father Harry Johnson telling her that Granny Lizzie's tribal name is Mugura, meaning 'one eye'. Granny Lizzie was very light skinned and had blue eyes, one blind. Her father also told her that Granny Lizzie was born at Theresa Creek, which is near Emerald.

558    Growing up on Palm Island, Ms Hunter’s family lived with the Birri Gubba and the Kangoulu people because families all identified with their tribal groups. She said that because there were people from different groups it was important to know who their mob was. Families’ houses were clustered according to what country people were from. Ms Hunter’s family lived in a cluster of Birri Gubba and Kangoulu people. The people in each camp would speak their own languages. They could understand each other because they were from the same country. Ms Hunter learned some Kangoulu and Birri Gubba language from her father, who spoke language fluently. One word she learned in language is wadda moolie which means 'welcome' in both Birri Gubba and Kangoulu. That word is still used today to welcome people to country.

559    Harry Johnson’s biological brother was Bowman Johnson and they had two adopted brothers, Tim Tyson and Jack O’Chin. Ms Hunter’s mother is not Kangoulu and Ms Hunter does not take country through her. Ms Hunter said that, under Western Kangoulu laws and customs, the only way that a person can hold rights and interests in Western Kangoulu country is through descent from ancestors, including persons, such as Jack O’Chin, who were adopted by those ancestors. The Johnson family share all of Western Kangoulu country with the other Western Kangoulu families.

560    Ms Hunter said that many Kangoulu relatives visited their family on Palm Island. The visitors included: Granny Jessie (who was Granny Lizzie’s sister), Old Charlie Clarke (who Ms Hunter called Grandfather Clarke), Uncle Lenny Malone, Jack O’Chin, and Granny Maudie Phillips.

561    In about 1986, Ms Hunter travelled to Emerald with her children. She told them that this was her father’s and grandmother’s country and that it was Kangoulu country.

562    Ms Hunter believes that when a Western Kangoulu person dies, their spirit returns to Western Kangoulu country and the spirits of her ancestors are there today. Ms Hunter introduces herself to the ancestor spirits, to let them know she is there, when she goes to Western Kangoulu country after an absence and if she failed to do so, something would happen to her as the spirits of the ancestors know who she is. She says that people who are not Western Kangoulu should be introduced by a Western Kangoulu person to the ancestral spirits in Western Kangoulu country if they want to go onto that country – it would be irresponsible not to as the ancestors in the country would make the visitor sick. Western Kangoulu cannot sell or give away their country; if they do, there will be repercussions from the spirits of the ancestors who will inflict bad luck upon them.

563    Ms Hunter learned about the Mundagudda, the snake that lives in the waterways, from her cousin, Norman Johnson; she learned about junjaddi, little hairy men, from her father; and has also heard stories about the “tall men”.

564    When she was six or seven years old, Ms Hunter was told by Granny Lizzie’s sister, Jessie, that her euri or minya (which means “meat” in Kangoulu and Widi respectively) is the kangaroo which she cannot harm or eat, and she has passed that totem on to her children and grandchildren. She understands that her totem is sacred to her and she cannot touch it.

565    Ms Hunter was taught that Western Kangoulu people should eat what they kill and not waste food. If they kill animals and just leave them in the country, the ancestral spirits would make them pay for wasting food and would punish them.

566    Ms Hunter learned and adheres to the rule that it is taboo to marry your own bloodline including cousins. She has passed that knowledge on to her children and grandchildren, and has taught them some language. Ms Hunter explained:

It is important to drum in the family connections to prevent them from marrying the wrong way. They need to know who they are connected to blood line and tribally. Tribally it is respect and bloodline it is taboo. The old people and mainly our grandmothers taught us about who we could and could not marry. We were told we could not marry anyone from our tribe. This still matters today even though it is a different era. It is still taboo to marry someone from your bloodline. It could be that your children wouldn't be normal or something would happen to your children. In the old days if you married tribally and you didn't respect their Murri lore you were out casted.

Steven Raymond Kemp

567    Steven Kemp was born at Mackay on 29 July 1960. Mr Kemp says he is a Ghungalu elder and one of the persons comprising the applicant of the GNP claim who takes his country through his father, Tim Kemp.

568    Mr Kemp says that Ghungalu country goes as far west as the Comet and Mackenzie Rivers and under his laws and customs, he speaks for the country right up to those rivers. Mr Kemp says that further west of those river is the “Western Kangoulu claim” and that their language and culture are the same as those of the Ghungalu, but “they are a different mob” comprising families like the Broomes, Malones, Johnsons and Gee Gees, who speak for the country on the western side of the Comet and Mackenzie Rivers.

569    Mr Kemp says that if an outsider wanted to come on to Ghungalu country, they should ask for permission from a Ghungalu elder or they will have bad luck or bad things will happen to them as the “old people” for his country will not know them if they are not introduced. He says that the Western Kangoulu people have the same law and he would ask permission from a Western Kangoulu elder if he wanted to take some ochre from Western Kangoulu country.

I.    DOES NATIVE TITLE EXIST IN RELATION TO THE CLAIM AREA?

Introduction

570    As stated earlier, s 223(1) of the Native Title Act requires the Court to consider the laws and customs acknowledged and observed by the present day claim group and to ascertain whether:

(a)    the laws and customs are traditional, having their origins in the normative rules of the Aboriginal society that existed before the assertion of British sovereignty and which have been passed from generation to generation in the society, usually by word of mouth and common practice; and

(b)    under those laws and customs, the members of that claim group possess rights and interests in the claim area and, by those laws and customs, have a connection to the claim area.

571    As also stated earlier, the concept of “traditional” laws and customs is one which accommodates necessary adaptation of those laws and customs in response to European settlement of the claim area and the assertion of British sovereignty over the claim area (and the Australian continent). As explained in Wyman FC, claimants may establish that they continue to have a normative society rooted in the pre-sovereignty society out of which rights and interests continue to be possessed, even where a range of rules and practices under laws and customs have ceased to be followed.

572    At the time of the trial of the Separate Questions, the State did not admit that the evidence supported findings that:

(a)    after effective sovereignty, the claim group’s ancestors continued to transmit cultural knowledge, including pre-sovereignty laws and customs, from generation to generation by word of mouth and common practice;

(b)    the claim group and their ancestors have continued to acknowledge and observe the pre-sovereignty laws and customs under which they possess rights and interests in the land and waters of the claim area;

(c)    the laws and customs acknowledged and observed by the present day claim group remain rooted in pre-sovereignty laws and customs;

(d)    the members of the claim group continue to possess rights and interests in all of the land and waters of the claim area; and

(e)    no persons other than the members of the claim group are known to possess rights and interests in the land and waters of the claim area under traditional laws and customs that they acknowledge or observe.

573    However, the statement of agreed facts now records the parties’ agreement to the following facts:

8    From generation to generation since effective sovereignty, the Western Kangoulu People (including the apical ancestors) have likely continued to acknowledge and observe most of the pre-sovereignty laws and customs related to rights and interests in the claim area.

9    Although the pre-sovereignty laws and customs have undergone varying degrees of loss, change and adaptation, the contemporary system of laws and customs under which rights and interests are held in the claim area remain rooted in the pre-sovereignty laws and customs.

10    The adapted pre-sovereignty laws and customs referred to in paragraph 9 include:

(a)    an understanding of the mythology of the claim area, including the spiritual forces inhering in the land or waters of the claim area;

(b)    a system of inheritance of identity and rights in land through different genealogical links, including adoption;

(c)    an understanding of spirits in the landscape, including appropriate ways of managing spiritual presence;

(d)    an embodied relationship between people and their land and waters;

(e)    the inalienability of rights in land and waters;

(f)    a variety of responsibilities to manage and protect the land and waters;

(g)    the customary use of natural resources;

(h)    recognition of gender specific and other sensitive significant sites at which certain access protocols apply;

(i)    a kinship system; and

(j)    a system of authority emphasising the role of senior people,

(adapted laws and customs).

11    By the adapted laws and customs that they continue to acknowledge and observe, the Western Kangoulu People likely have a connection to, and hold native title rights and interests in, the land and waters of the claim area.

12    Under, and in accordance with, the adapted laws and customs they continue to acknowledge and observe, the Western Kangoulu People likely possess the following non-exclusive native rights and interests in the claim area:

(a)    the right to access, be present on, move about on, and travel over the claim area;

(b)    the right to camp on the claim area, and for that purpose, erect temporary shelters on the claim area;

(c)    the right to take natural resources from the land and waters of the claim area for personal, domestic and non-commercial communal purposes;

(d)    the right to take the Water of the claim area for personal, domestic and non-commercial communal purposes;

(e)    the right to maintain places of importance and areas of significance to the Western Kangoulu People under their adapted laws and customs, and protect those places and areas, from physical harm;

(f)    the right to teach Western Kangoulu People members the physical and spiritual attributes of the claim area;

(g)    the right to bury Western Kangoulu People members within the claim area;

(h)    the right to assemble and conduct ceremonies and other cultural activities on the claim area; and

(i)    the right to light fires on the claim area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

13    The Western Kangoulu People do not possess exclusive native title rights and interests in the claim area.

574    The parties’ agreement with respect to the foregoing facts is supported by the evidence, as discussed below.

The laws and customs acknowledged and observed today

575    The evidence reveals that, since European settlement of their country, the Western Kangoulu people have lost much. There is a reasonable possibility that some of their forebears were unlawfully killed by European settlers and the Queensland Native Police. Many of their forebears were forcibly removed from their traditional country and placed in missions. It has been a long struggle for the Western Kangoulu people to return to their traditional country, a struggle which can be described as ongoing.

576    The evidence shows that certain aspects of the traditional laws and customs of the Aboriginal inhabitants of the claim area before European settlement have ceased to be observed. That is particularly the case with the traditional social organisation encompassing two named moieties and four named sections, regulating marriage and other social interactions. Whilst members of the claim group have received and acknowledge personal totems, the traditional totemic system has not been continued. Knowledge of traditional mythology is much diminished and traditional initiation practices are no longer observed.

577    The evidence shows that the previous generation of Western Kangoulu people continued to speak the Ganggalu language, but the present generation only knows certain words in that language. The loss of language is likely due to the practice or policy of prohibiting the use of Aboriginal languages at missions. Priscilla Broome gave evidence that she remembered that Granny Nellie spoke some Kangoulu language, but that was not permitted by the authorities at the missions and so she never taught her grandchildren. Similarly, Vassa Hunter gave evidence that, while her father Harry Johnson spoke Ganggalu fluently, he was not able to speak in language in front of the “authorities”. Patrick Malone gave evidence that other knowledgeable Ganggalu people living at Cherbourg, such as Grandfather Dilbin (who had been removed from Emerald around 1922), continued to speak in Ganggalu language, but “it was done quietly and away from the white managers”. Bowman Johnson spoke many Aboriginal languages, including Ganggalu.

578    However, as stated by Barker J in Badimia (at [356]), s 223 does not require that the present day Aboriginal society maintains particular features of a “classical” society (ie, a society before European settlement). His Honour observed (at [358]) that the absence of a range of indicators of such a classical Aboriginal society does not necessarily mean that there is not today a body of persons united by their acknowledgement of traditional laws and observance of traditional customs under which they possess rights and interests in relation to their traditional country.

579    Despite being forcibly removed from their traditional country, and despite the hardships endured by them, the evidence shows that the claim group’s forebears continued to acknowledge and observe their laws and customs, and to teach those laws and customs to each generation. The evidence shows that corroborees continued to be performed, and songs and dances were taught. Lizzie Johnson gave evidence that, at the missions, where corroborees were prohibited, Ganggalu people would conduct the corroboree at night “out bush”. After they had left the mission, Ms Johnson’s family had greater freedom to conduct corroborees and perform and teach songs and dances. Patrick Malone gave evidence of a corroboree that he attended in Cherbourg in 1960 but which was shut down by mission staff.

580    Taken as a whole, the witness evidence (set out above) reveals a consistent pattern of knowledge within the claim group of their identity as Western Kangoulu people holding rights and interests in the land and waters of the claim area, their kinship relationships, the authority of their elders, the boundaries of their country, spiritual forces within their country, sacred or significant sites within their country, their obligations with respect to their country, as well as their observance of those obligations. The evidence supports a finding that knowledge of those laws and customs has been passed from generation to generation and has its origin in the society of Ganggalu people who occupied the claim area before European settlement.

Identity as Western Kangoulu people holding rights and interests in the land and waters of the claim area

581    The evidence shows that members of the claim group have a strong identity as Western Kangoulu people, being the biological or adopted descendants of forebears who were Ganggalu people from the claim area.

582    While the Western Kangoulu and the Gaangalu Nation People share an identity as Ganggalu people based upon descent from Ganggalu people and the commonality of laws and customs, the present day Western Kangoulu claim group comprises a distinct group, united by their laws and customs and claiming rights and interests in the claim area by descent from their ancestors who held rights and interests in the claim area.

583    The transformation of the pre-sovereignty Ganggalu society into the separate Western Kangoulu and Gaangalu Nation People societies involves adaptations of pre-sovereignty law and custom. As discussed earlier, those adaptations include changes to the system of inheritance of rights and interests in land (from patrifilial to cognatic) and changes to the rights and interests in land (from local descent groups who each occupied its own local areas to undifferentiated interests across the claim area). As explained by Dr Martin, whose opinion I accept, the label Western Kangoulu represents an amalgamation or coalescing of local groups with traditional connections to the Western Kangoulu claim area.

584    The claim group acknowledge and observe a system of inheritance of rights and interests in the claim area through descent from ancestors who held rights and interest in the claim area. A child who is adopted by a Western Kangoulu person may also acquire rights and interests in the claim area.

585    The evidence also shows that members of the claim group have an embodied relationship with the lands and waters of the claim area. That embodied relationship is expressed in a spiritual connection with country. By way of illustration, Lizzie Johnson described that she has an “overwhelming feeling” when she is on country and that her “spirit jumps” when she is there. Patrick Malone described how, when he is on country, he can “feel the spirits of our ancestors”. Cynthia Broome said that she knew she was at home and being watched over and protected by the ancestral spirits when she was living in Emerald.

Kinship relationships

586    The evidence shows that there is very strong kinship knowledge within the Western Kangoulu claim group, and very strong kinship relationships.

587    The evidence also shows that the claim group continues to use a classificatory kinship system, although the system today is likely limited in comparison to the traditional society. The most obvious illustration of the system is the use of the name “grandfather” or Bulloo (in Ganggalu) to refer to both a grandfather and a grandfather’s brothers. Although the present day use of a classificatory kinship system is limited, it continues to reflect the importance of extended familial relationships within the Western Kangoulu society, which are the underpinning for mutual obligations between family members.

The authority of elders

588    The evidence showed that the claim group continues to acknowledge and observe laws and customs associated with the authority of elders. Many witnesses gave evidence that Western Kangoulu elders must be respected; that the elders have the authority to speak for country and make important decisions with respect to country; that elders have a key role in passing on traditional knowledge; that elders maintain knowledge of kinship relationships and give advice whether a marriage is “too close”; and that a stranger who wishes to visit Western Kangoulu country should seek the permission of a Western Kangoulu elder to be introduced to ancestral spirits.

Knowledge of the boundaries of Western Kangoulu country

589    The evidence shows that the claim group’s knowledge of the traditional boundaries of Western Kangoulu country has been passed down across the generations and is broadly consistent. The boundaries are marked by mountain ranges and rivers. The western boundary is marked by the Drummond Range, to the north-west is Lake Theresa and associated creeks, to the north-east is the Peak Range, the eastern boundary is marked by the Comet and Mackenzie Rivers and the southern boundary is marked by the Minerva Hills and Snake Range.

Spiritual forces within the claim area

590    The evidence shows that members of the claim group maintain a belief in Mundagudda, a snake or serpent that created the rivers and waterways (and surrounding terrain) and which now rests in Lake Maraboon, Policeman’s Lagoon and Lilyvale Waterhole. Those places are sacred, and claim group members will not swim or fish there. The Mundagudda is memorialised in a dance. The evidence also shows that there is a widespread belief in other spiritual creatures in the claim area, particularly spirits that appear as little hairy men and are called junjaddi. Jonathan Malone and Cheyne O’Chin gave evidence about a spiritual creator called Biami (but no other witnesses referred to that spiritual being).

591    Members of the claim group also maintain a belief that the spirits of their ancestors reside in the claim area, who are often referred to as the “old people”. It is believed that when a Western Kangoulu person dies, their spirit returns to Western Kangoulu country. Smoking ceremonies are used as a funerary practice to release the deceased’s spirit back to country.

592    It is also believed that ancestral spirits have the capacity to harm strangers on the country. For that reason, it is necessary for strangers to be introduced to the spirits by a Western Kangoulu person, preferably an elder. If a stranger is not introduced, they may be harmed by the ancestral spirits causing illness or death. Some of the members of the claim group believe that it is respectful for Western Kangoulu people to introduce themselves to the ancestral spirits if they have been away from country. A smoking ceremony may be performed to drive away malevolent spirits, and clapping, or the use of clapping sticks, may be used to let the spirits know who is visiting country.

Sacred or significant sites within their country,

593    During the hearing, the Court visited a number of sacred or significant sites within the Western Kangoulu claim area at which evidence was given. Those sites were Hannam’s Gap (site 22), Lake Maraboon (site 4), Hanny’s birth place in Emerald (site 2), a former camp site and the birth place of Lizzie Thomas on Theresa Creek within Glenelg Station (site 34), Lilyvale Waterhole (site 6) and the junction of Theresa and Sandy Creeks (site 37). The Court also received evidence of other sacred or significant sites within the Western Kangoulu claim area including Policeman’s Lagoon, the Fairhills stone arrangement and caves in the Peak Ranges in which there is rock art.

594    The evidence shows that members of the claim group consider that their traditional laws require them to preserve and protect each of the sacred and significant sites within their country. At many of the sites, Western Kangoulu people are restricted in their activities. For example, at the water places at which the Mundagudda rests, Western Kangoulu people are not permitted to swim or fish; traditional birthing places are women’s areas and bora rings (ceremony grounds) are men’s areas.

Rights and obligations with respect to the use of Western Kangoulu country

595    The evidence shows that members of the claim group acknowledge and observe certain laws and customs associated with their use of Western Kangoulu country.

596    Most significantly, members of the claim group consider that it is impermissible to sell or transfer any part of Western Kangoulu country, explaining that their ancestors reside in the country.

597    With respect to the use of the resources of the country by way of hunting and fishing, members of the claim group all acknowledge traditional laws which stipulate that: Western Kangoulu people have the right to hunt and fish but strangers require permission to do so from Western Kangoulu elders; and when hunting and fishing, a person must only take what they need and must share their food with other members of the community.

598    Reference has already been made to sacred and significant sites within Western Kangoulu country and obligations associated with those sites.

Possession of rights and interests in the land and waters in the claim area

599    The evidence supports the conclusion that Western Kangoulu people possess the rights and interests in the land and waters in the claim area that are set out in the statement of agreed facts under the traditional laws acknowledged, and the traditional customs observed, by them.

600    The rights and interests in the claim area that are set out in the statement of agreed facts differ from the rights and interests that would have been held by Ganggalu people in the claim area prior to European settlement. As found earlier, it is likely that, before European settlement, patrilineal local descent groups held rights in specific parts of the claim area similar in nature to exclusive possession, being rights to live in the specific area, to exploit the resources of the specific area and to regulate access to the specific area by others.

601    As discussed earlier in these reasons, European settlement of the claim area has forced adaptations to the traditional laws and customs of the Western Kangoulu people. Those adaptations have included the loss of knowledge of local descent groups and the necessary amalgamation of rights and interests in the whole of the claim area, as well as the transformation of patrilineal rules of inheritance of rights to a cognatic rule. Those changes, together with the removal of Western Kangoulu people from the claim area, and associated widespread European settlement of the country, have had the effect that Western Kangoulu people no longer have rights and interests in the nature of exclusive possession of any part of the claim area.

602    Despite those fundamental changes, the evidence supports a conclusion that Western Kangoulu people continue to possess rights and interests in the land and waters in the claim area under the traditional laws acknowledged, and the traditional customs observed, by them, and that those rights and interests are as set out in the statement of agreed facts. Those rights and interests are:

(a)    the right to access, be present on, move about on, and travel over the claim area;

(b)    the right to camp on the claim area, and for that purpose, erect temporary shelters on the claim area;

(c)    the right to take natural resources from the land and waters of the claim area for personal, domestic and non-commercial communal purposes;

(d)    the right to take the water of the claim area for personal, domestic and non-commercial communal purposes;

(e)    the right to maintain places of importance and areas of significance to the Western Kangoulu people under their adapted laws and customs, and protect those places and areas, from physical harm;

(f)    the right to teach Western Kangoulu people members the physical and spiritual attributes of the claim area;

(g)    the right to bury Western Kangoulu people members within the claim area;

(h)    the right to assemble and conduct ceremonies and other cultural activities on the claim area; and

(i)    the right to light fires on the claim area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

603    The meaning of some of the words in the preceding paragraph are defined in the statement of agreed facts, but it is not necessary to reproduce those definitions.

604    Each of those rights and interests is consistent with rights and interests that were possessed by Ganggalu people occupying the claim area before European settlement, and each of those rights and interests is consistent with the laws and customs that continue to be acknowledged and observed by the claim group. They are rights and interests that are held by the claim group by reason of their descent from Ganggalu people occupying the claim area before European settlement. The rights and interests are possessed under the traditional laws and customs that they continue to acknowledge and observe as such descendants. No other persons hold such rights and interests in the claim area.

Connection with the land and waters in the claim area

605    The evidence also supports the conclusion that, by the traditional laws and customs that they acknowledge and observe, the Western Kangoulu people have a connection with the land and waters of the claim area.

606    As stated earlier in these reasons, connection involves the continuing assertion by the claim group of its traditional relationship to the country defined by its laws and customs; this relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it. The laws and customs themselves characteristically will 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. Further, connection to land or waters may have subsisted at a spiritual and/or cultural level notwithstanding that the claimants have not been able to maintain a physical presence on substantial parts of their traditional lands or waters.

607    The connection of the claim group with the land and waters of the claim area is evident from many aspects of their traditional laws and customs, discussed above. It is evident from: the claim group’s continuing identity as Western Kangoulu people with rights and obligations to the claim area; the claim group’s embodied relationship with the lands and waters of the claim area, expressed in a spiritual connection with country; the claim group’s knowledge of the traditional boundaries of Western Kangoulu country and of sacred and significant sites within the claim area; the claim group’s belief in the spirits that reside within the claim area, both creator spirits and ancestral spirits, and their cultural practices to acknowledge and respect those spirits.

J.    CONCLUSION

608    It follows from the reasons expressed above that the Separate Questions should be answered as follows:

(1)    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: Yes, in respect of the whole of the claim area.

(2)    In relation to that part of the claim area where the answer to (a) above is in the affirmative:

(a)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

Answer: The biological or adopted descendants of one or more of the following people:

(i)    Polly aka Polly Brown aka Polly McAvoy;

(ii)    John ‘Jack’ Bradley;

(iii)    Hanny of Emerald;

(iv)    Nannie, mother of Nelly Roberts; and

(v)    Annie/Nanny Duggan and Ned Duggan,

who identify as Western Kangoulu People and who are recognised as such by the Western Kangoulu People.

(b)    What is the nature and extent of the native title rights and interests?

Answer: The native title rights and interests are the following non-exclusive rights and interests in the claim area:

(i)    the right to access, be present on, move about on and travel over the claim area;

(ii)    the right to camp on the claim area and, for that purpose, erect temporary shelters on the claim area;

(iii)    the right to take natural resources from the land and waters of the claim area for personal, domestic and non-commercial communal purposes;

(iv)    the right to take the Water of the claim area for personal, domestic and non-commercial communal purposes;

(v)    the right to maintain places of importance and areas of significance to the Western Kangoulu People under their adapted laws and customs, and protect those places and areas, from physical harm;

(vi)    the right to teach Western Kangoulu People members the physical and spiritual attributes of the claim area;

(vii)    the right to bury Western Kangoulu People members within the claim area;

(viii)    the right to assemble and conduct ceremonies and other cultural activities on the claim area; and

(ix)    the right to light fires on the claim area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

609    For the purposes of the above answers, the following words have the following meanings (which are taken from the definitions used in the statement of agreed facts):

(a)    “Animal” means any member of the animal kingdom (other than human) whether alive or dead;

(b)    “claim area” means the area of land and waters described in Schedules B and C of the amended native title determination application filed by the Applicant on 15 August 2017;

(c)    “natural resources” means:

(i)    any Animals and Plants found on or in the lands and waters of the claim area; and

(ii)    any clays, soil, sand, gravel or rock found on or below the surface of the claim area,

(iii)    that have traditionally been taken by the Western Kangoulu People and their ancestors, but does not include:

(A)    Animals that are the private personal property of any person;

(B)    crops that are the private personal property of another; and

(C)    minerals as defined in the Mineral Resources Act 1989 (Qld);

(D)    petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

(d)    “Plant” means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen;

(e)    “Water” means:

(i)    water that flows, whether permanently or intermittently, within a river, creek or stream;

(ii)    any natural collection of water, whether permanent or intermittent; or

(iii)    water from an underground water source; and

(f)    “Western Kangoulu People” has the meaning given in the answer to question 2(a).

610    The answers to the Separate Questions constitute the Court’s determination of the matters referred to in paragraphs (a) and (b) of s 225 of the Native Title Act. Before any determination of native title can be made in this proceeding, it is necessary for the matters referred to in paragraphs (c), (d) and (e) of s 225 also to be determined. Those matters concern issues of extinguishment and the nature and extent of other interests in the claim area.

611    The applicant and the State have informed the Court that it is their intention, assuming agreement can be reached on all remaining issues, to seek a determination of native title by consent under s 87 of the Native Title Act. In those circumstances, it is unnecessary for the Court to make any case management orders beyond an order that the proceedings be referred to a Judicial Registrar of the Court for further mediation on the remaining issues for determination.

612    Finally, I wish to acknowledge again the willingness of the applicant and the State to engage in the arduous process of research and analysis of the applicant’s claim and to reach agreement on the facts stated in the statement of agreed facts. In doing so, the applicant and the State have demonstrated their commitment to the principles recorded in the preamble to the Native Title Act, including the emphasis given to the role of conciliation as a means of justly and properly ascertaining native title rights and interests. As these reasons demonstrate, the agreement reached between the applicant and the State is supported by the evidence adduced in this proceeding.

Associate:

Dated:    17 April 2025

ANNEXURE A

MAP OF CLAIM AREA

ANNEXURE B

STATEMENT OF AGREED FACTS

A.     Introduction

1.    On 6 December 2017, orders were made for the following to be determined separately from any other questions in the proceeding:

(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?

(Separate Questions)

2.    This Statement of Agreed Facts as to the Separate Questions:

(a)    is agreed between the Applicant and the State of Queensland (State) for the purpose of a proposed agreement and consent orders addressing the Separate Questions pursuant to s 87 of the Native Title Act 1993 (Cth) (NTA) (Proposed s 87 Agreement), a preliminary draft of which is annexed at Attachment A;

(b)    contains the facts that are agreed between the Applicant and the State on the basis that the State is satisfied that there is evidence that establishes a credible basis for the State to agree those facts and to enter into the Proposed s 87 Agreement; and

(c)    for the purposes set out in paragraphs 2(a) and 2(b) and subject to paragraph 3, replaces the Applicant's Statement of Facts and Matters filed 17 April 2020, the State's Response to the Statement of Facts and Matters filed 8 May 2020, the Applicant's Amended Statement of Facts and Matters filed 10 August 2022, the State’s Amended Response to Amended Statement of Facts and Matters Sought to be Admitted (ARASFM) filed 25 August 2022, and the Applicant's Further Amended Statement of Facts and Matters filed 15 September 2022.

3.    For the avoidance of doubt, to the extent the State has made admissions on the balance of probabilities at paragraphs [6]-[8], [12]-[13] and [l 5]-[16] of the ARASFM, the State does not withdraw those admissions and continues to admit those facts on the balance of probabilities.

B.     Definitions

4.    Unless indicated to the contrary, in this document:

(a)    "Animal" means any member of the animal kingdom (other than human) whether alive or dead;

(b)    "apical ancestors" means the persons described as such in paragraph 7;

(c)    "Application" means the amended native title determination application filed by the Applicant on 15 August 2017;

(d)    "Applicant" means Jonathon Malone, Hedley Henningsen, Cynthia Broome and Karen Broome;

(e)    "claim area" means the area of land and waters described in Schedules B and C of the Application;

(f)    "Commonwealth" means the Commonwealth of Australia;

(g)    "effective sovereignty" means the period between 1845 and the early 1860s when European settlement first occurred in relation to the claim area;

(h)    "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

(i)    "native title rights and interests" has the meaning stated in paragraph 12 below;

(j)    "natural resources" means:

(i)     any Animals and Plants found on or in the lands and waters of the claim area; and

(ii)    any clays, soil, sand, gravel or rock found on or below the surface of the claim area,

(iii)    that have traditionally been taken by the Western Kangoulu People and their ancestors,

(iv)    but does not include:

A.    Animals that are the private personal property of any person;

B.    crops that are the private personal property of another; and

C.    minerals as defined in the Mineral Resources Act 1989 (Qld); or

D.    petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

(k)    "Plant" means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen;

(l)    "sovereignty" means 26 January 1788 when sovereignty was asserted over the claim area;

(m)    "Water" means:

(i)    water that flows, whether Permanently or intermittently, within a river, creek or stream;

(ii)    any natural collection of water, whether permanent or intermittent; or

(iii)    water from an underground water source;

(n)    "Western Kangoulu People" means the biological or adoptive descendants of one or more of the apical ancestors whose contemporary descendants assert native title in the Western Kangoulu proceedings (QUD 17 of 2019).

C.     Facts and matters agreed by the Applicant and State

Sovereignty and Effective Sovereignty

5.    At the time of effective sovereignty, apart from the effects of the effluxion of time on people’s lives, the circumstances and state of affairs in relation to Aboriginal people who occupied the claim area, including the laws and customs acknowledged and observed by them, were essentially the same as they were at sovereignty.

6.    At sovereignty and at effective sovereignty, Aboriginal people were in occupation of the claim area who were likely united in and by their acknowledgment and observance of a shared system of laws and customs, which likely included the following:

(a)    an understanding of the mythology of the claim area, including the spiritual forces inherent in land and waters of the claim area;

(b)    an understanding of spirits in the landscape, including appropriate ways of managing spiritual presence;

(c)    an embodied relationship between people and their land and waters;

(d)    inalienability of rights in land and waters;

(e)    a system of inheritance of identity and rights in land through different genealogical links, including adoption;

(f)    a variety of responsibilities to manage and protect the land and waters;

(g)    customary use of natural resources;

(h)    recognition of gender specific and other significant sites;

(i)    a classificatory kinship system;

(j)    a system of authority emphasising the role of senior people;

(k)    funerary practices; and

(l)    totemism as an association between totemism and kinship as well as personal totems,

(g)    (pre-sovereignty laws and customs).

Apical Ancestors

7.    It is likely that the following persons held rights and interests in the claim area under the pre-sovereignty laws and customs acknowledged and observed by the Aboriginal people associated with the claim area, as at, or shortly after, effective sovereignty:

(a)    Polly aka Polly Brown aka Polly McAvoy;

(b)    John 'Jack' Bradley;

(c)    Hanny of Emerald;

(d)    Nannie, mother of Nelly Roberts; and

(e)    Annie/Nanny Duggan and Ned Duggan,

(apical ancestors).

Continuity and Connection

8.    From generation to generation since effective sovereignty, the Western Kangoulu People (including the apical ancestors) have likely continued to acknowledge and observe most of the pre-sovereignty laws and customs related to rights and interests in the claim area.

9.    Although the pre-sovereignty laws and customs have undergone varying degrees of loss, change and adaptation, the contemporary system of laws and customs under which rights and interests are held in the claim area remain rooted in the pre-sovereignty laws and customs.

10.    The adapted pre-sovereignty laws and customs referred to in paragraph 9 include:

(a)    an understanding of the mythology of the claim area, including the spiritual forces inhering in the land or waters of the claim area;

(b)    a system of inheritance of identity and rights in land through different genealogical links, including adoption;

(c)    an understanding of spirits in the landscape, including appropriate ways of managing spiritual presence;

(d)    an embodied relationship between people and their land and waters;

(e)    the inalienability of rights in land and waters;

(f)    a variety of responsibilities to manage and protect the land and waters;

(g)    the customary use of natural resources;

(h)    recognition of gender specific and other sensitive significant sites at which certain access protocols apply;

(i)    a kinship system; and

(j)    a system of authority emphasising the role of senior people,

(h)    (adapted laws and customs).

11.    By the adapted laws and customs that they continue to acknowledge and observe, the Western Kangoulu People likely have a connection to, and hold native title rights and interests in, the land and waters of the claim area.

Native Title Rights and Interests

12.    Under, and in accordance with, the adapted laws and customs they continue to acknowledge and observe, the Western Kangoulu People likely possess the following non-exclusive native rights and interests in the claim area:

(a)    the right to access, be present on, move about on, and travel over the claim area;

(b)    the right to camp on the claim area, and for that purpose, erect temporary shelters on the claim area;

(c)    the right to take natural resources from the land and waters of the claim area for personal, domestic and non-commercial communal purposes;

(d)    the right to take the Water of the claim area for personal, domestic and non-commercial communal purposes;

(e)    the right to maintain places of importance and areas of significance to the Western Kangoulu People under their adapted laws and customs, and protect those places and areas, from physical harm;

(f)    the right to teach Western Kangoulu People members the physical and spiritual attributes of the claim area;

(g)    the right to bury Western Kangoulu People members within the claim area;

(h)    the right to assemble and conduct ceremonies and other cultural activities on the claim area; and

(i)    the right to light fires on the claim area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

13.    The Western Kangoulu People do not possess exclusive native title rights and interests in the claim area.

14.    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the laws of the State and the Commonwealth; and

(b)    the adapted laws and customs of the Western Kangoulu People.

15.    The precise location in relation to which any particular native title right and interest may be determined to exist is not presently known as the tenure research in the claim area has not been completed or exchanged between the parties.

SCHEDULE