Aplin on behalf of the Pitta Pitta People v State of Queensland

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6025 of 1999

BETWEEN: NEVILLE APLIN, CARMEL BELFORD, NOEL DOYLE, JEAN JACKS, FLORENCE MELVILLE AND ALFRED NATHAN ON BEHALF OF THE PITTA PITTA PEOPLE

AUSTRALIAN AGRICULTURAL COMPANY LIMITED, VIDA FELICIA BEAUCHAMP, REGINALD HASTED BEAUCHAMP, ROSLYN ANN BLACKET, ROBERT STIRLING BLACKET, WILLIAM HENRY CAMERON, KALINDA LOUISE CLUFF, WILLIAM PATRICK CLUFF, GLADYS MAY ELLIOT, JOHN MAXMILLIAN FEGAN, PHILIP GREGORY PRINCE, SCHOLEFIELDS BOULIA PTY LTD AS TRUSTEE FOR THE JBS TRUST AND JAMES BRITTAIN SCHOLEFIELD, ADRIAN JOSEPH WELLS AND VICKI ANN WELLS

JUDGE: DOWSETT J DATE: 28 AUGUST 2012 PLACE: BOULIA

REASONS FOR JUDGMENT 1 On 29 September 1999, the Pitta Pitta people filed an application for a determination as to the existence of native title. The application has been amended on a number of occasions. On 5 March 2001 it was accepted for registration and subsequently notified as required by the Native Title Act 1993 (Cth) (the "Act"). Following further research other amendments were made. In some cases the amendments reduced the claim area. Others amended the claim group description and the rights and interests claimed. 2 Neville Aplin, Jean Jacks, Alfred Nathan, Carmel Belford, Noel Doyle and Florence Melville now comprise the applicant. Mr Aplin, Ms Jacks and Mr Nathan were three of the five people who made the original application. Alice James was another of those five people. She moved from western Queensland to live the final years of her life in Ipswich. She came to Brisbane for directions hearings over the many years during which this claim was proceeding. Sadly, she died without seeing today's recognition of her native title. The fifth person was Henry Marion. Unfortunately he also has not lived to see this day. 3 The respondents to the claim are the State of Queensland, the Boulia, Cloncurry, Diamantina and Winton Shire Councils, Ergon Energy Corporation Limited, Ivanhoe (Osborne) Pty Ltd previously known as Placer Pacific (Osborne) Pty Limited, Roverton Pty Ltd and a large number of pastoralists. 4 The claim area includes about 30,000 square kilometres near the Queensland/Northern Territory border and about 200 kilometres south of Mt Isa. It is centred on the township of Boulia. It covers low lying plains in the Channel Country and the Burke, Hamilton and Georgina Rivers. The area enjoys a warm, semi-arid climate. Thus waterholes and watercourses were, and are an important part of the relationship between the people and the land. 5 The parties were, for some years, involved in long and complex negotiations conducted in the National Native Title Tribunal (the "Tribunal"). On 7 March 2011, the matter was removed from the Tribunal and referred to intensive case management in the Court. The parties have now reached agreement. 6 The Act authorizes the Court to determine that native title exists over areas in respect of which there is no existing determination. The Pitta Pitta claim area is not subject to any other claim or approved determination. Where, at any time after notification, the parties agree upon the orders to be made in relation to such proceedings, the Court may make appropriate orders. In exercising the judicial power of the Commonwealth, this Court resolves disputes identified by the parties. The parties may narrow those issues by admission or concession. Any such agreement must be freely made, on an informed basis. In some cases, the Court may decline to act upon admissions or concession. Where, as here, the proceedings have significance for people other than the parties, I must give careful consideration to the appropriateness of the proposed consent orders. 7 I see no reason to doubt the appropriateness of the parties' consensual resolution of the matters previously in dispute. They have had the benefit of legal advice and substantial anthropological and other research. The proceedings have been on foot for almost 13 years and have been publicized in accordance with the Act. I am satisfied that the proposed orders have been drafted with regard to the public interest, represented by the State of Queensland and interested local authorities. 8 The parties agree that the native title rights and interests in that part of the claim area identified in Schedule 3 (other than in relation to water), are subject to paras 9, 10 and 11 of the proposed orders, the non-exclusive rights to: (i) be present on, by accessing, traversing and camping on the area; (ii) hunt and gather on the area for non-commercial, personal, domestic, social, cultural and communal purposes; (iii) take and use natural resources from the area for non-commercial, personal, domestic, social, cultural and communal purposes; (iv) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; (v) conduct ceremonies on the area; (vi) teach on the area the physical and spiritual attributes of the area; and (vii) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 9 The parties agree that the native title rights and interests in relation to water in that part of the Determination Area identified in Schedule 3 are, subject to paras 9, 10 and 11 of the proposed orders, the non-exclusive rights to: (i) hunt, fish and gather from the water for personal, domestic, social, cultural and non-commercial communal purposes; and (ii) take and use the water for personal, domestic and non-commercial communal purposes. 10 Where the Court determines that native title exists, s 94A of the Act requires that the Court determine the matters mentioned in s 225. I must therefore identify: the persons or groups holding the native title; the nature and extent of the native title rights and interests in relation to the claim area; the nature and extent of any other interests in relation to the determination area; the relationship between such rights and interests and those other interests; and to the extent that the land and water in the claim area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease, whether the native title rights and interests confer exclusive possession, occupation, use and enjoyment of that land and water. 11 In considering these matters, I have been greatly assisted by the extensive material filed in support of the claim. The history of the Pitta Pitta people since first European contact is well documented. Burke and Wills passed through the area in 1860 and probably encountered ancestors of the present claim group. Pastoralists arrived shortly thereafter. In 1872, copper was discovered in the area and by the turn of the century, at least two copper mines had been established. I infer that observations concerning indigenous people in the claim area at that time demonstrate the conditions and circumstances which prevailed at the time of first European settlement in Australia in 1788. 12 Walter Edmund Roth came to the area in 1894. His anthropological work provides a firm basis for understanding the culture and social organisation of indigenous people in the area in the years immediately after first European contact. The material demonstrates that Roth took a keen and sympathetic interest in the people whom he identified as Pitta Pitta and associated groups. More recently, numerous reports have been prepared by Mr Michael Southon, an anthropologist, and Dr Kevin Mayo, an anthropologist and genealogist. Other anthropological research has been done by Dr B Sommer and Dr E Sommer. Dr G Breen, a linguist, has also prepared a report. Professor Peter Sutton has been engaged in assessing the available material. 13 Roth gave a detailed picture of life in the claim area as he observed it. He identified many small groups in the area, describing them as comprising a "tribe". Mr Southon classifies these groups as clans rather than one tribe. However the evidence suggests that the clan groups shared perceptions of common interest and unity in such activities as dealing with common enemies and celebrations. Their languages were related, and they inter-married. 14 Concerning the effects of European settlement upon traditional law and custom Southon says: Two expeditions followed that of Burke and Wills: McKinlay's in 1862 - which discovered copper in the Selwyn Range - and Hodgkinson's in 1876. At least two mines, Selwyn and Wee McGregor, were established in Pitta Pitta country by the turn of the century. But mining posed less of a threat to the subsistence base of Aboriginal populations than pastoralism and it wasn't until pastoralists entered that area in 1874 that frontier violence began in earnest. As elsewhere in Australia, much of the violence between Pitta Pitta people and pastoralists was over access to waterholes, which were vital to Aboriginal subsistence in this semi-arid region. The cattle polluted the waterholes, prompting Aborigines to spear the cattle, which in turn brought retaliation from the pastoralists. 15 The years following European settlement were marked by conflict and violence. In 1878, an infamous massacre of Pitta Pitta people occupied at the Woonamo waterhole, about 25 kilometres north of Boulia. In the late 1880s and 1890s Pitta Pitta people settled in camps on the cattle stations where they sought to maintain their traditional way of life, no doubt suffering, and surviving great hardship. 16 Southon reports that Roth's work shows numerous aspects of a continuing and functioning traditional society, including: (a) initiation; (b) ceremony; (c) a class system; (d) marriage rules; (e) rules for inheritance of rights in country; (f) rules of etiquette regarding access to country of neighbouring groups; (g) a vital and interconnected regional system of long-distance trade; (h) a complex material culture, including three types of semi-permanent dwelling; and (i) hunting and gathering for a wide variety of fauna and flora using a range of different techniques. 17 The evidence demonstrates that in Roth's time in the area there was organized occupation and possession of the claim area. Such occupation and possession almost certainly dated back to the time of Burke and Wills and to times prior to 1788. 18 Roth observed quite sophisticated hunting and trapping techniques which were dependent upon communal organisation, preparation and execution. Various groups had well-established systems of food taboos, depending upon descent lines. Roth identified long-established trade routes along which the various clans were free to travel. 19 Twenty five Pitta Pitta claimants, ranging in age from 32 to 96 have provided affidavit material attesting to the continued acknowledgment and observance of traditional laws and customs by the Pitta Pitta people in relation to the land and water which are the subject of this determination. Those affidavits contain comprehensive descriptions of traditional law and custom including dreaming stories, spiritual matters, language and significant sites and boundaries, as well as detail concerning the methods of transmission of such knowledge. There is also substantial evidence of continuing exercise, enjoyment and recognition of rights, interests and obligations pursuant to traditional laws and custom. 20 Ms Alice James was born on 23 July 1916, not long after Roth's time in the area. Given that Roth arrived a little more than 40 years after Burke and Wills, we have a nearly contemporaneous account of Pitta Pitta history for the whole period from first European contact to the present time. 21 In her later years Ms James continued to conduct smoking ceremonies, smoking houses and people. She observed traditional funereal practices and understood the Pitta Pitta language. She gave evidence of traditional foods, ceremonies, craft and burial sites. She passed on much of this information to her descendants. 22 Henry Marion was born in 1932. He attended corroborees and gave evidence of traditional food gathering. He knew of forbidden places. Alfred Nathan was born in 1930. He gives detailed evidence of his family, methods of hunting and gathering, bush medicines, taboo foods and many other aspect of traditional life. 23 Neville Aplin was born in 1946. His parents and other Pitta Pitta people taught him to hunt, fish and gather plants in order to survive on "bush tucker" and "bush medicine". He hunts and camps on the claim area but avoids some places because of bad spirits. He has raised his children to know "everything about the bush". He is aware of food taboos. 24 Ms Carmel Belford was born in 1950. She knows sites which are of traditional or ceremonial importance, and rules relating to access to Pitta Pitta country and traditional beliefs and practices. She gives detailed evidence of Pitta Pitta life and culture. 25 Jean Jacks was born in 1953. She knows the Pitta Pitta language. She is aware of food taboos to which she is subject. She has experience of traditional hunting, fishing and preparation of food and of spiritual matters. She and her husband have passed on hunting techniques to their children. She knows of traditional sites and stories. 26 There is much other evidence. Evidence from younger people demonstrates that the Pitta Pitta people continue to pass on traditional laws and customs. 27 Clearly, traditional laws and customs have survived, although in a modified form, any changes being properly seen as attributable to the need to adapt to European settlement. There is no suggestion that those occupying and possessing the area in the 1860s and their descendants have, at any time, ceased either to reside in, or visit the area. I infer that the members of the claim group are the descendants of those clans, comprising a federation, which occupied the claim area at the time at which Roth entered it. Those clans were probably the descendants of people who lived there in the early 1860s and, by inference, prior to 1788. 28 Hence the Pitta Pitta people have an unbroken physical connection to the claim area, dating back to a time prior to 1788.

ORDERS AND DETERMINATION 29 The Court has had the benefit of the applicant's comprehensive submissions. The State has conducted a thorough examination of the available material and is satisfied that the proposed determination is appropriate. The respondent parties agree. 30 I find that the claim group comprises Pitta Pitta people descended from people who, pursuant to traditional law and custom, were in occupation of the land and water of the claim area at the time of assertion of British sovereignty. Those people formed and form a society, united in and by their acknowledgement and observance of those traditional laws and customs. Through their observance of these traditional laws and customs, the Pitta Pitta people have maintained a connection with the claim area since a time prior to 1788. 31 The proposed orders recognize that the Pitta Pitta people, as holders of Native Title over the claim area, are entitled to the non-exclusive use and enjoyment of the land and water described in Schedule 3. Schedule 7 and order 13 of the proposed orders recognize other interests in the claim area and the relationships between those interests and the native title rights and interests. 32 The Pitta Pitta people are described in Schedule 2 of the proposed orders as those persons recognized by the Pitta Pitta people as being biologically descended from the following ancestors: (a) King Bob 'Walpa Currie'; (b) King Bob 'Wheelpoolie'; (c) Dinah Aplin nee Craigie; (d) Geraldine Craigie aka 'Cherida Craigie' aka 'May Cherita'; (e) Juno; (f) Linda 'Junnaburri' Allen (g) Jaboc 'Tulikamali' Cameron (h) Joseph 'Joe' Allen (i) Pilot Jack 33 Dr Kevin Mayo has prepared genealogical charts that set out in detail the presently known members of the Pitta Pitta claim group and their biological descent from the named Pitta Pitta ancestors. 34 The applicant proposes that its native title be held on trust by the Pitta Pitta Aboriginal Corporation (ICN 3943). That corporation is also to perform the functions set out in s 57(1) of the Act. The Corporation was registered on 5 February 2002 under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The applicant has complied with the requirements of s 56(2). 35 I am satisfied that the Court should make the orders sought. 36 I make orders in terms of the draft which has been signed by the parties, which I now initial and place with the papers. 37 I have not come here today to give anything to the Pitta Pitta people. Rather I have come to recognise, on behalf of all Australians, that the Pitta Pitta people are the traditional owners of this land pursuant to traditional laws and customs which have their roots in ancient times. I now recognize that traditional ownership. In so doing, I bind all Australians for all time, including the Commonwealth of Australia, the State of Queensland, the Boulia Shire Council, the Cloncurry Shire Council, the Diamantina Shire Council and the Winton Shire Council. 38 I congratulate the parties upon the spirit of co-operation which has, after long delay, led to this happy day. I have referred only briefly to the pain and sadness which the Pitta Pitta people have suffered as the result of European settlement. We all hope that the pride and benefits which flow from the strong, democratic and humane society, of which we are all part, will in the end, be just compensation for your suffering and for that of your ancestors. We hope, too, that today's determination will be a step towards your enjoying that pride and those benefits. 39 On behalf of all Australians and, particularly on behalf of the Judges of this Court and our staff, I congratulate you, the Pitta Pitta people upon this recognition of your traditional rights and wish you well for a future in which we all will share. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.