Dr Martin
87 Dr David Martin is also an anthropologist. His evidence relies heavily upon the work done by Professor Trigger and Ms Fietz. He focusses on two particular aspects in assessing the available evidence concerning Minnie, her descendants, their connection to the claim group and their connection to the claimed country. They are:
· the operation and significance of the "skins" system in, and to Waanyi social structures, and the way in which Waanyi people are traditionally connected to their lands; and
· the documented movement of the Waanyi people eastwards from the end of the nineteenth century, and traditional succession by them to the lands previously possessed by other peoples.
88 Dr Martin observes that the Waanyi and Garawa skins system is broadly shared within a regional cultural bloc which includes the Nguburindi and Injilarija (also Injalanji) peoples as explained by Trigger and Fietz. Dr Martin gives details of that system and observes that "[t]racts of country are associated with particular semi moieties or 'skins'." Through the operation of the skins system certain parts of the present claim area were obtained by Waanyi people from Nguburindi or Injilarija people. I take this to mean that the shared skins system resulted in inter-marriage between Waanyi people, Injilarija people and Nguburindi people, leading to people from more than one of those three groups having interests in certain areas. I have previously mentioned the movement of the Waanyi people eastward from their heartland, primarily in the Northern Territory, but extending into Queensland, leading to their eventual occupation of land previously occupied by the Nguburindi (to the east) and the Injilarija (to the south).
89 Based upon the work done by Trigger and Fietz, Dr Martin concludes that there is a "core" of Waanyi families with connections to countries in both the western portion of the Waanyi claim area (mostly in the Northern Territory) and also in the eastern portion of the claim area (in Queensland). The claim area includes Lawn Hill country, Louie Creek country, Musselbrook-Elizabeth-Accident Creeks country, Riversleigh country and Gregory River country. I shall subsequently consider the evidence as to the parts of the claim area which were within Waanyi traditional country prior to the eastward migration. Dr Martin considers (also based on the work of Trigger and Fietz) that two Waanyi families are identified as having connection only to country in the west, that is the area lying mostly in the Northern Territory, whilst four families (one of which is the Minnie family) claim connection only to country in the east of the claim area and no identified country in the original Waanyi heartland to the west. For reasons which appear hereafter, I consider that in one respect, this view may be based upon a misunderstanding of the work done by Trigger and Fietz. As I understand it, Dr Martin implies that traditional owners are likely to have associations with land in both the western and eastern parts of the extended area occupied by the Waanyi people, perhaps reflecting geographical associations before and after their eastern migration. Association with only the eastern parts of Waanyi country might suggest only more recent association, perhaps "historical" rather than "traditional". However Professor Trigger considers that Waanyi membership depends only upon demonstrated relationship to one area of Waanyi country.
90 Dr Martin interviewed many Waanyi, Garawa and Gangalidda people in seeking information concerning Minnie and her family. It will be helpful if I summarize his evidence as to those interviews.
91 Dr Martin spoke to Betty O'Loughlin in Mount Isa. She is the daughter of Lizzie Daylight who was the daughter of Murandoo the "King of the Waanyi". Lizzie identified as Gangalidda through her mother. Lizzie was a very senior Gangalidda person (although Fietz apparently described her as Garawa). Betty identifies as a Gangalidda woman. She was born at Burketown and knew Laura Yamaguchi. She said that the Waanyi originally came east from Brunette Downs and Najabara on the Nicholson River, "that home for Waanyi". When asked about Minnie, Betty O'Loughlin referred to the many Aboriginal women who had married Chinese men, including some amongst her own Gangalidda grandmother's people. She said that the Chongs in Burketown, including Jack, Tommy and his sisters (the children of Sarah Chong) had never classed themselves as Waanyi. Her mother knew the people from Lawn Hill. They had never heard of Minnie. This may seem a little curious in view of other evidence that Minnie worked and was married at Lawn Hill, and that some of her children were born there. Perhaps Lizzy meant that the Lawn Hill people had not "heard of" Minnie as a Waanyi woman. In any event, the assertion seems a little too remote to be of much use for present purposes. Betty said that old Darby and his family were the real Waanyi people who belonged to Lawn Hill. Those from Musselbrook included Jack and Mick Diamond. Those from Gregory included the Peter Bell mob. The Rankin people included Polly (grandmother of Nancy George) and Sally O'Keefe. Those from Riversleigh included old Ruby, Betty and old Tommy Doolan.
92 Betty said that she did not know where Minnie came from, but that Eva Gilbert would know. She said that all of "those old ladies" (apparently meaning Minnie's daughters) grew up at Woods Lake outside Burketown and belonged to Burketown. Laura Yamaguchi never "talked about Waanyi" and spoke Gangalidda language. At some stage Sarah Chong, whose bush name or nickname was Anyimor, lived at Lawn Hill. Betty had heard that Minnie came from Calvert Hills. She said that she had heard this from Arthur Anderson at Batchelor College in the Northern Territory, and that it had been stated "in a book". She said that there had been a number of women in the region named "Minnie", including Gladys Goodman's mother who came from Calvert Hills.
93 Dr Martin also spoke to various members of the Minnie family. Mr Phillips told him that his grandmother, Bessie Turner (one of Minnie's daughters) had always told him that they were Waanyi and about Waanyi country. She was born at Louie Creek but later moved to Burketown. Mr Phillips told Dr Martin of his conversations with Arthur Peterson and Billy Foster. Details of this conversation appear later in these reasons. Eddie Jacobs' mother, who lived at Camooweal, always claimed Mr Phillips and his family as Waanyi. Janie Ah Kit (Bessie's sister) also said that they were Waanyi. I have previously mentioned Mr Hookey's apparent connection to Janie. Dr Martin met Mona Phillips, Mary Cotterell, Margaret Body, Doreen Sweeney, Jean Rankin and Frank King. They suggested the names of other people to whom he should speak. At a subsequent meeting, which did not involve Mr King, these people indicated that they had always identified as Waanyi. Mona and Mary's mother, Bessie, had gone to Burketown to meet Sarah Chong and Laura Yamaguchi. They also visited Escott Station and the surrounding area. They were told it was their country. Dr Martin understands that area to be associated with the Gangalidda people rather than the Waanyi people.
94 Dr Martin also spoke to Doreen George who claimed to be a Garawa woman. Her father was Devil Devil Dreaming. She lived at Burketown whilst her husband was running stock at Escott Station, possibly during the 1960s. Sarah Chong was then in Cloncurry but Nellie, Louie, Jack and Tommy Jnr were in Burketown. Laura Yamaguchi had a son, Arthur. Doreen George said that Laura and the others were not Waanyi but Gangalidda. They spoke Gangalidda "all the time". She had never heard them, or anyone else say that they were Waanyi.
95 Dr Martin spoke to Roy Dickson, Kathleen Shadforth and her son, Archie Shadforth. Mr Dickson is an elderly and quite infirm Garawa man. Kathleen Shadforth is his sister and Arthur Shadforth, her son. Mr Dickson is considered to be a very knowledgeable person concerning regional traditional law and country, as is Kathleen Shadforth. The Minnie family members in Mount Isa had referred Dr Martin to her. Mr Dickson said that Laura Yamaguchi and her siblings were at Woods Lake, outside Burketown, when he was a young boy, perhaps twelve or thirteen years old. They had a Chinese father. No "full descent" Aboriginal people lived at Woods Lake, only those of Aboriginal-Chinese descent. Sarah Chong was called "Granny Lake" and was Gangalidda. Their country was around the lake.
96 Kathleen Shadforth said that Laura's mother was a "black one", meaning that she was not of mixed descent. She had died by the time Kathleen arrived at Burketown from Calvert Hills. She considered the family to be Gangalidda. Laura Yamaguchi took her to Lightning Dreaming near the old Burketown race course and said that it was her country. That place is in Gangalidda country.
97 Dr Martin spoke to Maria George, an elderly lady. Her mother was Gangalidda and her father, Garawa. Her mother's father was Gangalidda and was called Lawn Hill Albert. When she was a young teenager, she stayed for a few years at Woods Lake. She knew Laura Yamaguchi and others there. She said that Laura spoke Gangalidda and was "full Aboriginal". Laura was, of course, part Chinese. Dr Martin thought that Maria may have been confused.
98 Dr Martin spoke to Jack Hogan who is a senior Waanyi claimant, born in 1948. His country is on the eastern side of Waanyi country in Lawn Hill. He did not remember Mona Phillips but knew Laura Yamaguchi. He had also met Sarah Chong but could not remember Janie Ah Kit. Laura used to speak Gangalidda and a little Garawa. She did not say anything about Burketown being her country. He thought that Laura's mother was then still alive. That is inconsistent with the recorded year of Minnie's death, 1943, before Mr Hogan's birth. In a subsequent conversation with Mr Hogan, also involving a man called "Bronco", Dr Martin was told that Laura Yamaguchi spoke Garawa.
99 Amelia Booth was another person to whom Dr Martin was referred by the Minnie family members in Mount Isa. She had lived in the Doomadgee dormitory from 1942 until 1950 when she married. She then lived in Burketown and knew Laura Yamaguchi, Bessie Turner and Maudie King. She had seen all three of them in Cloncurry. She expressed the view that Laura and the others were "Waanyi tribe". She said that someone whom she could not remember had told her that Laura's mother had lived around Lawn Hill.
100 Anthony Chong was born in 1973. He is the son of Kevin Chong and the grandson of Tommy Chong Jnr. Sarah Chong was his paternal grandfather's mother. Through his mother Janet, a daughter of George Hookey, he has Waanyi/Garawa connections. He told Dr Martin that he understood that Minnie had lived most of her life at Touchstone Hut on Punjaub Station, and that she had come from that area. Anthony had heard from an old woman that Minnie was Nguburindi from between Lawn Hill and Gregory. He considers that "the key lies around the Punjaub/Touchstone area". His father was born at Touchstone and always lived there, not far from Rubber Vine Creek. He said that this possible Nguburindi connection would discredit the Waanyi claim to succession to the area, and would require the wider Waanyi group to accept them (the Minnie family). Touchstone Hut is presently in Gangalidda country but is close to the former boundary between Gangalidda and Nguburindi country.
101 This theory might well explain the uncertainty about Minnie's background. Without wishing to speculate, it is easy to imagine that a remaining descendant of the former traditional owners of land annexed by the Waanyi people would have been a potential source of embarrassment to them, and would again be embarrassing at the present time. However, whilst it is an insightful theory, there is little or no evidence to support it.
102 Anthony said that the "Top End" Waanyi migrated east to Corinda. Those from around Punjaub moved to Burketown, and those from the South Nicholson moved to Lawn Hill Station, Riversleigh and Gregory. He said that the Ah Kit family and the King family had always identified as Waanyi. He heard Frank King say so at the meeting concerning the proposed Century Mine in 1996 or 1997. Nobody raised any objection to the claim. Some years ago, Anthony had a conversation at Doomadgee school with Michael Booth, a Gangalidda man, now deceased, and Murandoo Yanner. Michael told a story of four Garawa women who came across to the east and married four Chinese men. One was said to be Murandoo's great-great-grandmother and one was Minnie's forebear. As I have said, various versions of the story appear in the anthropological evidence. Anthony said that April Peters always claimed that Minnie was from the west and was Waanyi/Garawa.
103 Alan Jupiter told Dr Martin that Laura Yamaguchi and her siblings always spoke Gangalidda. Dr Martin also spoke to Gloria Friday, Eileen Rory and Charlie "Ringo" Jack. They provided no additional information. At Doomadgee Dr Martin spoke to Geraldine and Lois Johnny and Ted Pluto who also added no further significant information. Rodney Walden is a Gangalidda man, born at Burketown. He said that Laura Yamaguchi spoke Gangalidda. Her sisters, including Sarah, were Nulaynma skin. He called them "mother" because he is Yagamari skin. Richard Brooktail understood that Laura was Gangalidda. Eric King said that Laura Yamaguchi was Gangalidda, adding that "All that mob there Burketown Gangalidda".
104 Tom O'Keefe was one of the persons to whom the Minnie family had referred Dr Martin. He is a Waanyi man. He knew Laura Yamaguchi when he lived at Burketown and worked with her son, Arthur. He and Arthur had the same "skin" and so he called Laura "mother" and visited her. He thought that she and "the others" were from Burketown. She spoke Gangalidda. He did not think that they were Waanyi. He thought that Laura's mother had come to Burketown from further west.
105 Eva Gilbert is a Gangalidda woman, born in 1933. She remembers Minnie's daughters. Her own mother was Gangalidda, and she considers "those old ladies" to have been Gangalidda. She heard Laura speak Gangalidda. She said that if Minnie went to Lawn Hill it was because she was taken there by "that old Chinaman", presumably her husband. She called Minnie's daughters "Granny" because of their skins. Len Cubby remembered Sarah Chong and Laura Yamaguchi. He said that he understood them to be Gangalidda. He thought that Mona Phillips might be Gangalidda. The Minnie family had also referred Dr Martin to Daisy Smart. She offered no real assistance.
106 Clara Foster said that Laura Yamaguchi was Gangalidda, and that Laura had told her this herself. She did not speak Gangalidda language or any language other than English. Although previous researchers had attributed to Clara the view that Minnie's bush name was "Mayabuganji", she said that she did not know of any bush name for Laura's mother. She said that other Gangalidda people had not taken much notice of Laura. This may have had something to do with her being of mixed race. I observe that it may also have reflected doubt or uncertainty concerning her claim to be Gangalidda.
107 Ada Walden is a daughter of Jack Chong, the son of Sarah Chong. Ada's parents were not together when she was born. She and her mother went to Mornington Island. She mainly claims country on her mother's side. She and her older siblings were brought up on Corinda, a station in Waanyi country. Her mother always said that Ada was Waanyi through her. When she was 10 to 12 years old her father would take her camping at weekends. She remembers seeing both of her grandmothers at that stage but does not have a clear recollection of them. She is certain that Mona Phillips "and the others" are Waanyi. She does not think that they could be anything else. They had no connection to the Gangalidda people except for the fact that "those old people", presumably Minnie's children, lived in Burketown. She said, "Our grandmothers were all over there around Lawn Hill and met with those Chinese gardeners." She spoke to her father's sister, Nellie Chong, about Minnie. Nellie said that those families (presumably the Minnie family) had connections to her family. Ada never heard her grandmothers, Nellie Chong and Louie Booth, say that they were Gangalidda.
108 Ada said that she had been talking to Clara Foster and Eva Gilbert on the previous day when they had attended a Gangalidda Land Council meeting in Burketown. Clara had said that she thought that "they" were Waanyi. Both Clara and Eva said that they could not see that old Minnie and Laura could be anything but Waanyi. This seems to be inconsistent with Clara and Eva's own statements to Dr Martin. Ada said that Teddy Chong, George Chong and Stanley Chong all thought that they were Waanyi. Ada is, of course, a member of the applicant group in these proceedings.
109 In Burketown Dr Martin spoke to Murandoo Yanner. He has substantial local knowledge. His family is connected to other families of Chinese descent in the Burketown area, including the descendants of Minnie. Mr Yanner said that there is a "Lawn Creek" in the south of the Barkly Tableland in Wakaya country. He thought that Minnie may have come from there with a Chinese man and ended up in Burketown. This may have led to the view that she was from Lawn Hill. He said that Laura Yamaguchi could speak Gangalidda and another language which he could not identify. She was "pretty tribal". He said that the Garawa people did not visit Maudie King as they would have done if she were from their family. Mona Phillips and her family did not visit Laura. Edna Kum Sing, the daughter of Janie, and thus the niece of Maudie King, always claimed to be Waanyi. Johnny Yanner told Dr Martin that Sarah Chong, Laura Yamaguchi, Bessie Timms and Janie Ah Kit were all born around the Riversleigh/Lawn Hill area and so were Waanyi. He used to go fishing with Laura Yamaguchi. She spoke English but occasionally would speak in "language". He said that he was pretty sure that Laura, Maudie and the family were not Gangalidda.
110 Dr Martin generally accepts the description of the qualifications necessary to be a Waanyi person, as outlined by Professor Trigger, and as appearing in the proposed amendment to the description of the claim group. At paras 108-109 of his report he concludes that although Waanyi laws and customs have undergone transformations and adaptations since the assertion of British sovereignty, it is reasonable to infer that such description reflects general principles of group membership which would have been in operation at that time. In justification of this assertion, Dr Martin concludes at para 109 that:
This is because in relation to the first principle [identified above] descent continues to be the key mechanism by which membership of the group is established, albeit through cognatic descent in contemporary circumstances rather than primarily patrilineal descent in the past. In relation to the principle of self-identification, which implies choice, while as noted above choice as to identity would not have played the equivalent role in the past, it is in my opinion this constitutes an adaptation to historical circumstances. With regard to the third principle, that of recognition by the wider society or community, recognition by the relevant group or society in order to be a member of it would surely have been as logically necessary in the past as it is today.
111 Dr Martin then considers Minnie's ancestry. First, he considers the identity of her father. The relevant information is primarily that provided to Mr Blackwood by Roy Seccin. I have already set out that information. Although Dr Martin accepts that Mr Seccin was a respected Waanyi elder and a "key informant with previous researchers", he nonetheless seeks to test the above information by reference to other matters, particularly the references to "skins". At paras 117-118 he concludes that Mr Seccin's account is consistent with his own understanding of the skins system, and seems to support his (Mr Seccin's) views concerning Minnie's affiliation, but continues:
However, despite these consistencies, I would not give any particular weight to this information. Firstly, except that Roy's account is consistent with other versions which have Minnie's mother coming from the Calvert Hills area of the Northern Territory, it is something of an "outlier"; given Roy Seccin's seniority and status in the region, it is hard to imagine why such specific and definitive information is not part of wider discussion and knowledge amongst other Waanyi people, as is the case for "core" Waanyi families. Neither Jack Hogan nor Jack Green, who are noted by Peter Blackwood as having been present when Roy Seccin provided this information, raised it with me in my enquiries of them. I subsequently asked Jack Green as to what he remembered of the account provided by Roy Seccin, and he informed me that he must have been away from the discussion at the time as he did not recall it.
112 Mr Blackwood concedes that he was in error when he said that Mr Green was present at his interview with Mr Seccin. In fact he had spoken to him on the previous day. Mr Green had said that he understood Minnie to be Waanyi but that Mr Seccin would "know for sure".
113 One can only speculate about the fact that other members of the Waanyi community are not aware of Mr Seccin's views. He may have disclosed the relevant information to others who have died or have not been questioned about the matter. It may be that he was never asked about Minnie, given the fact that she died in 1943 and seems not to have had close contact with many Waanyi people other than at Lawn Hill and in Burketown. In the absence of any suggestion that Mr Seccin was in ill-health so as to be unreliable, or that he had a motive for lying, I see no reason to doubt that he accurately communicated his views to Mr Blackwood.
114 Dr Martin observes that if Opal and Minnie were sisters, that fact would throw doubt on the proposition that Minnie was Waanyi. This doubt, it is said, arises from the fact that Opal was born at Brunette Downs whilst Minnie was born at Calvert Hills. However there is considerable doubt about Minnie's birthplace, even if one accepts that Opal was born at Brunette Downs. It is also possible that Mr Seccin was in error in identifying Opal and Minnie as sisters. In my view the importance of his evidence is the clear identification of Minnie, her second husband and her daughter, Sarah, his association of her with Lawn Hill and his identification of her as Waanyi. It cannot be seriously suggested that he was speaking of somebody other than the subject of the present inquiry.
115 Dr Martin also queries the suggestion that Minnie and Opal were full sisters. He considers the proposition to be unlikely, given that Minnie's mother is said to have come from Calvert Hills whilst Opal was said to have been born at Brunette Downs, some distance from Calvert Hills. I doubt whether this matter should be treated as being of much significance. It is difficult to assess the extent to which, at the relevant time, it was likely that sisters would be born at different locations. Betty O'Loughlin referred to Brunette Downs as being in Waanyi country although other evidence may have suggested the contrary. Dr Martin then observes that the consistency of the skin names, semi-moiety and affiliations and dreamings in Mr Seccin's account:
… could be read as evidence that his account is plausible as a statement of fact, or it could be read as resulting from … post-hoc rationalisation by which important cultural categories were being mapped onto contemporary social and political processes … . That is, a man as senior and knowledgeable as Roy Seccin, including about the cultural geography of the Lawn Hill area, would have provided information concerning "skins", Dreamings etc which was at the very least internally consistent, but cast to give cultural legitimacy to a particular account.
116 This seems to mean that Mr Seccin, having stated that Minnie was a Waanyi woman, then treated her and her parents as such, attributing to them characteristics which were consistent with the assertion, although not actually within his knowledge. However that approach offers no explanation for Mr Seccin's having made the assertion that Minnie was a Waanyi woman, if in fact he did not understand that to be the case. Perhaps the argument leads only to the conclusion that Mr Seccin considered that Minnie was a Waanyi woman but, having no demonstrated basis for that opinion, made assumptions which were, in effect, based upon his belief. That theory may be an available explanation, but it is a little difficult, at this point in time, to determine whether it was the case.
117 Dr Martin considers certain historical matters which, in his view, lead to the conclusion that Lawn Hill Mick, if he was Minnie's father as asserted by Mr Seccin, was not Waanyi. The argument is based substantially upon the timing of the eastward migration of the Waanyi people. As previously mentioned, the country originally associated with the Waanyi people at the time of the assertion of sovereignty was:
an extensive area broadly speaking running from the headwaters of the Nicholson River in the Northern Territory south to around Carrara Range and Carrara Creek, and eastwards to the foot of the hills marking the eastern extremity of the Barkly Tableland. These include the Constance Range and the Edith Range in the area of Lawn Hill Station in Queensland.
118 Dr Martin notes that contemporary Waanyi people assert traditional connections with lands to the east of these ranges. He suggests that the plains country running eastward from Lawn Hill Creek to the middle of the lower reaches of the Gregory River was originally the country of the Nguburindi people. He also asserts that the area centred on the gorges along the upper reaches of Lawn Hill Creek and, possibly, the upper reaches of the Gregory River was originally part of Injilarija country. As I have previously observed, the Waanyi people traditionally consider themselves to be hill people in contrast to their Ngburindi neighbours to the east whom they regard as "plains, channel and running water people". Dr Martin also notes that Tindale placed the eastern extent of Waanyi country to the west of Archie Creek and close to Lawn Hill homestead and the escarpment in the region of Lawn Hill Gorge. Although the copy of Tindale's map at para 122 in Dr Martin's report is a little unclear, I have examined an original. The map places the Lawn Hill homestead just within traditional Waanyi country.
119 Dr Martin then discusses the circumstances which led to Waanyi succession to areas previously occupied by the Nguburindi and Injilarija peoples. In effect, the Waanyi moved into those areas following the killing of many of the previous occupants by European settlers and the departure of others in the face of such violence. Dr Martin suggests that this violence occurred between 1876 and 1896, and that large numbers of Waanyi people were moving eastwards from the 1890s in search of European commodities such as tobacco, a secure food supply and to seek protection from the violence which characterized the period. From this information Dr Martin infers that the "major impacts of violence and disease on Injilarija and Nguburindi people would not have taken place until around the mid 1860s at the earliest, and in all likelihood not until the mid-1870s, particularly around the Lawn Hill area." At para 135 he concludes that:
• firstly, the evidence suggests that the area around the Lawn Hill Station homestead and the Lawn Hill Creek Gorge (that encompassed by the areas designated "Lawn Hill Country" and possibly also "Louie Creek Country" in the map in Appendix D of Trigger and Fietz 2003) was not originally Waanyi country but that of Injilarija (Injilarji) group;
• secondly, the evidence suggests that the area east of here including the mid-reaches of the Gregory River was not originally Waanyi country but that of Nguburindi-affiliated groups; and
• thirdly, Waanyi would not have displaced the original people of these areas, or succeeded to them, until they had consolidated their moves south and eastwards around the 1890s.
120 In this context Dr Martin also refers to his earlier observation that most Waanyi families with connections to land in the east also have connections to land in the west, a characteristic which he considers the Minnie family to lack, apparently suggesting that her family had no pre-migration association with Waanyi lands. However Professor Trigger seems to accept that a Waanyi family may only have connection to one area in Waanyi country.
121 Dr Martin then seeks to identify the likely birth date of Minnie's father. This exercise is based, firstly, upon identification of the birth dates of Minnie's eldest and second eldest daughters. Her eldest daughter, Emma, was born in 1890 and married in 1906. Her second eldest daughter, Sarah, was married in 1908 when she was 16, suggesting that she was born in 1892. Minnie's birth date is uncertain. Dr Martin assumes that she would have had her first child when she was aged somewhere between 16 and 20, suggesting a birth year between 1870 and 1874. Of course, her death certificate shows her as having died in 1943, aged about 85, suggesting a birth date of 1858. Mr Blackwood demonstrates that there is reason to doubt that date. Dr Martin agrees. Dr Martin then opines that in that era, an Aboriginal man was not likely to have married and had children until he was in his mid 30s-40s, suggesting that Minnie's father was born in the 1830s or perhaps early 1840s. He then observes that Old Mick was said to have been from Lawn Hill and Lawn Hill Gorge and, that "area was in all probability that of Injilarija people prior to the migration of Waanyi groups from further west in the latter part of the 19th century." Thus he concludes that it is "inconsistent with the historical evidence to assign a Waanyi identity to a person said to have country in this area who was born half a century before Waanyi migrated to this area".
122 I am conscious of the need to give appropriate weight to the views of an experienced anthropologist such as Dr Martin. However I consider his conclusion to be little more than a theory. The material upon which Dr Martin relies does not demonstrate a clear boundary between original Waanyi country and the country of adjoining groups. It at least suggests that traditional Waanyi country may have extended into the Lawn Hill area. I will discuss this aspect in more detail after I have summarized Dr Martin's evidence. The material does not unequivocally demonstrate the date of commencement of Waanyi eastward migration. Dr Martin's calculation of the "likely" birth year of Minnie's putative father is also far from compelling. Further, Mr Blackwood's account of Roy Seccin's story was that Minnie's father was from Lawn Hill, not Lawn Hill and Lawn Hill Gorge. He said that Minnie's country was "Lawn Hill station, going back at [or up] the gorge". Although it is merely speculation, it is possible that Minnie's claim to any area in the gorge (previously Injilarija country) may have arisen after the commencement of the eastern and southern migrations. When these uncertainties are combined, it is difficult to see in this exercise any firm basis for rejecting Roy Seccin's views. I will return to this matter at a later stage.
123 As to Minnie's mother, Dr Martin notes that the most common version of her place of origin is that she came from the Calvert Hills area which is generally considered to be in Garawa country. Of course, the most common version may be wrong. He concedes the possibility that there was a Waanyi/Garawa transitional zone which included the southern border of the Calvert Hills pastoral lease. He concedes that the Waanyi and Garawa peoples are closely related language groups and parts of the same cultural bloc, sharing significant aspects of law and custom. He said that in 1998 and 1999, when he was working in the region, it was common to hear Gulf Aboriginal people speaking of "Waanyi-Garawa" almost as if of a single group, and even referring in that way to particular people.
124 Dr Martin opines that there is no historical evidence to establish that Minnie had Waanyi descent through her mother. However at para 146 he says:
Having said that, it is not my opinion that it is necessary for every Waanyi family to be able to demonstrate objectively that their relevant apical ancestor was himself or herself descended from other forebears who were themselves Waanyi. There will always be many factors that will limit the extent to which the details of prior generations are known.
125 I accept that there is little evidence upon which a firm view can be formed as to the identity of either of Minnie's parents, let alone their language affiliation. That is hardly surprising in view of the passage of time and the absence of official records for much of the relevant period. It is convenient, at this point, to reflect upon the extent to which a person can know with certainty the identity of his or her mother or father. I am inclined to the view that in the absence of modern scientific evidence, it is impossible for a person to know such matters as facts. Having an opinion or belief about them is a different matter. To my mind, when one purports to identify oneself as the offspring of particular parents, one is generally stating an opinion or belief based on experience and the views of others, not stating proven biological facts. If Minnie said that she was Waanyi, then she was saying something about her understanding of her parentage. If other members of the community in which she lived said that she was Waanyi, they were also stating opinions. A mother is the only person who can know the identity of her child's parents with any degree of certainty. Another person, knowing the circumstances of a child's birth, may know the child's mother but, generally, not with certainty, his or her father. Opinion and belief may be based on knowledge, but are not, themselves, knowledge. In my view it is more helpful to look to such evidence as there is concerning Minnie's opinion of herself and the opinions of her contemporaries than to seek to create theoretical histories for her parents.
126 Dr Martin also concludes that there is no material which establishes "with any confidence" that Minnie identified as a Waanyi woman. Whilst, in one sense, this proposition is true, it completely discounts the evidence of Mr Seccin and Mr Hookey. Whilst neither has said that Minnie, herself, told him that she was Waanyi, their views must have been formed by, and based upon the views of those people amongst whom she, and they lived. It seems unlikely that those people would have considered Minnie to be Waanyi if she did not, herself, have that view and express it. One may infer from the opinions of Mr Seccin and Mr Hookey that those amongst whom Minnie lived considered her to be Waanyi, and that she asserted that view of herself.
127 Dr Martin acknowledges that many of Minnie's descendants assert that she was Waanyi, and that they are Waanyi. However he notes certain inconsistencies in their assertions. The first is a letter to the Carpentaria Land Council, apparently from Ms Hayley Iles as president of the "Minnie Group Aboriginal Corporation", but signed by Mona Phillips. It is dated 30 July 1999 and includes the following statement:
As we are just commencing our journey of finding our heritage we would appreciate any information you may have within the Carpentaria Land Council about our families; Minnie Mygoobungie, Chongs, Nings, Trindles, Turners, Yamaguchi, Ah Kits and Kings.
128 I am not sure that it is fair to describe this letter as being inconsistent with a belief that Minnie's descendants are Waanyi. The letter may demonstrate a desire to obtain information which will support an existing belief. It does not necessarily evidence the absence of such belief. Dr Martin also refers to another letter dated 18 November 2002 in which Ms Rose Iles asserts that her family members believe that they are Waanyi/Garawa, and that they belong to the Bidunggu clan group of the Waanyi tribe. Dr Martin suggests that this assertion is inconsistent with their being Waanyi because the Waanyi and the Garawa are distinct groups. Although Ms Iles uses that collective description, she also asserts that "… we belong to the Bidunggu clan group of the Waanyi tribe." apparently recognizing the distinction. Dr Martin, himself, said that it was not unusual for Aboriginal people in the Gulf to refer to the Waanyi-Garawa peoples. I see no significant inconsistency in that aspect of the letter. A more significant inconsistency may be the reference to membership of the Bidunggu clan group. This clan group is associated with the Gregory River country rather than the Lawn Hill country to which Minnie's descendants otherwise claim to be affiliated. However the matter has little relevance to the question of Minnie's affiliation.
129 Dr Martin then points out that some of Minnie's descendants who claim Waanyi identity, other than by descent from her, dispute the assertion that her descendants are, by virtue of such descent, Waanyi. Dr Martin places particular importance upon a statement by Nellie Chong to Ms Fietz that her mother and mother's mother (Minnie) were Gangalidda, and that she is Gangalidda. However she told Mr Blackwood that she did not know to which people her mother and grandmother belonged. She told Professor Trigger that nobody knew where her grandmother came from. Dr Martin points out that Nellie is a child of the eldest of Minnie's daughters with descendants, Sarah Chong. He would have expected that if knowledge of Minnie's ancestry and country had been passed down in the family, she would have been aware of it. She said that people expected her to know "a lot" but that she "doesn't know much". At no time did Nellie hear Minnie speak an Aboriginal language, nor did any of the families from Doomadgee come to visit her. Of course there is no evidence that Minnie had ever been to Doomadgee. In any event, Nellie only met Minnie on one occasion.
130 Nellie's lack of knowledge is not surprising given her statement that as a child, she was discouraged from asking questions of Laura Yamaguchi, her aunt, and other old people concerning their origins. It must be kept in mind that the family was of mixed race. It is at least possible that discussion of their Aboriginal roots was not as important to them as Dr Martin would expect it to have been in an Aboriginal community. In any event, the point is that Nellie was not told about her family's background so that her lack of knowledge has been explained. There is no suggestion that other members of the family were given the information. The family certainly has an indigenous background derived from Minnie through her daughters. The fact that a particular descendant does not know details of that history proves little, one way or the other.
131 At para 158 of his report, Dr Martin observes, concerning Nellie's information, that, "[t]his poses a problem in my view for an assertion by family members that they have consistently identified as Waanyi." He also refers to the fact that some family members say that they are not Waanyi, and that others say that they do not know Minnie's language identity. Nellie met Minnie, only once. The duration of the meeting is unclear. Mr Seccin and Mr Hookey seem to have had greater opportunities to interact with members of the community in which she was living than did Nellie. On the other hand, Nellie has said that all of Minnie's daughters were Gangalidda. However she also told Mr Blackwood that she did not know her mother's affiliation.
132 Dr Martin says that there is no evidence that Minnie's contemporaries recognized her as being Waanyi. However, as I have said, Mr Seccin and Mr Hookey's evidence invites the inference that she was so recognized. Dr Martin concludes at para 213:
In short, while there is recognition or acceptance among some Waanyi people and others that Minnie and her children were Waanyi people, on the basis of my enquiries this is far from a universally held view. Amongst those who do assign a Waanyi identity to Minnie and her children there is no consistent basis on which they do so.
133 Dr Martin gave substantial oral evidence-in-chief. In particular, at TS 340-341 he referred to a passage in his report in which he considers para 11 of the statement of claim. In that paragraph he asserts that a Waanyi person "is a descendant (biological or adopted) of a Waanyi person". At para 102 of his report Dr Martin said:
In my opinion, the tripartite principles in the Statement of Claim are consistent with accepted understandings of the principles of membership of a native title group or community, although accepted anthropological understandings of "descent" itself would see it as a cultural, not a biological construct as stated in clause 11.a. I have not undertaken fieldwork with Waanyi people with regards to this matter. However, in my experience, descent as an Aboriginal cultural construct is typically concerned with the transmission of spiritual essence rather than with genetic inheritance, as is the case in the western scientific paradigm.
134 At TS 340-341 he was invited to elaborate upon this and said:
I am wanting to bring attention to the fact that we can sometimes, in the way we - and I'm talking collectively - formulate these matters, import our assumptions about how things work unwittingly into the assumptions about how, for example, traditional Aboriginal society or contemporary society works. The notion of biological descent is founded in Western scientific notions, most recently, of the inheritance of DNA and so forth in its extreme. This is not a view which is held, to my knowledge, certainly by traditionally-oriented Aboriginal people and, it seems to me, even those many generations away from their traditions - although such words as "blood" and so forth, we are one "blood", and so forth, may be used. I have seen, for example, in my assessments of connection reports from the desert, from the Pilbara, from parts of South Australia, where what is actually being talked about is something that would be, I think, probably familiar to Catholics and perhaps high Anglicans, a form of spiritual imbuement, that is, that what one inherits, say, through one's father is a spiritual essence which defines one. It is not biological; it is religious and spiritual, and I think that some of the - to extend the notion of a cultural construct the discussions around, for example cognatic descent and so forth and the way in which that system operates, factors such as choice and so forth, which I also refer to in my report, go to the question of a particular cultural construction around descent. In my view, that's a necessary component of law and custom; an intrinsic component of Aboriginal law and custom.
135 At TS 341 he continued, concerning the pleading:
I understand that in a description - this tripartite description, that is, it is a description for the purposes of the law, but it seems to me that to call it biological misstates very commonly what actually are the principles of given systems of Aboriginal law and custom.
136 As I have previously observed, I broadly agree with this approach to the question of descent.
137 At TS 350-352 Dr Martin deals with the question of Roy Seccin's suggestion that Minnie's father was a Lawn Hill man. As I have previously demonstrated, he argues that at the likely time of his birth Lawn Hill would not have been Waanyi country. As I understand it, this argument is based upon the observations made by Trigger and Fietz concerning the extent of Waanyi country. However I do not understand them to have limited the extent of the area which might accurately be described as Lawn Hill in the way which is suggested by Dr Martin. The question is considered at some length in their 2003 report. They consider both the boundaries of Waanyi lands prior to the assertion of British sovereignty and, in particular, the area which is generally described as Lawn Hill. In part 1.1 they describe the boundaries of Waanyi country prior to British sovereignty. They say that:
Waanyi country extended as far eastwards as the vicinity of the foot of the hills marking the eastern extremity of the Barkly Tableland; in the area of Lawn Hill station in Queensland, these hills include the Constance Range and the Edith Range, and they run roughly in a north-south direction along a route to the west of Lawn Hill Creek.
138 The Edith Range and Constance Range appear on the map which is exhibit 10. The Edith Range is north-northwest of Lawn Hill homestead. The Constance Range is south-west of the homestead and to the west of Adel's Grove and the Lawn Hill Gorge. However all of those features appear to be within about 10 km of a line running through the two ranges. Further, in part 1.2 Trigger and Fietz speak of the eastward movement of Waanyi people beginning late in the 19th century, and the resulting establishment of traditional rights and interests by them in land extending east from the vicinity of Lawn Hill Station homestead to the Gregory River, as well as eastwards down a number of watercourses running along the south side of the Nicholson River (including Lawn Hill, Musselbrook, Elizabeth and Accident Creeks). They then discuss the traditional country of the neighbouring Injilarija and Nguburindi tribes. This passage suggests that the eastwards expansion started "from" the vicinity of Lawn Hill Station, implying that the station was on the previous boundary of Waanyi land. Of the Injilarija they say at 1.3.1:
Thus, the Winjilarija people are known to have been distributed around the gorge country of Lawn Hill Creek and south westwards across into the Northern Territory, around the headwaters of the Gregory River.
139 They say that the Nguburindi people were, at the time of European intrusion, centred on the middle and lower reaches of the Gregory River. They also note that Dymock suggested that Nguburindi territory encompassed the Gregory River "as well as at least part of the area to the west across the plains towards Lawn Hill Station". This passage suggests that Nguburindi territory was "towards" Lawn Hill Station, rather than that it extended to, and included that station.
140 At para 1.4 Trigger and Fietz observe:
As recorded in Trigger's research over a period of some 20 years, and also by Fietz in the last two years, the extent of Waanyi country at the time of European arrival is considered to have extended eastwards to the vicinity of the foot of the Constance and Edith ranges, including Lawn Hill Creek out on the plain country at least some 10 km east of the hills.
141 They also state that:
While there is recognition that the territories of the Injilarija people and Nguburindi people once melded somewhere to the north east of the Lawn Hill Gorge area, the former having extended upstream on Lawn Hill Creek to the south and south west and the latter having extended eastwards to the Gregory River, the predominant view among Waanyi people is that with the demise of these language groups, the Waanyi have historically "taken over" the traditional law and custom for their territories.
142 This passage suggests that the gorge must have been close to the north-eastern extremity of Injilarija country. In ch 4 of the report Waanyi country is discussed in more detail with reference to the various separate areas to which Waanyi families are connected. It is said at part 4.3 that:
The area described in general terms as "Lawn Hill country" is based on the name for the station and also Lawn Hill Creek; the latter is a major watercourse which flows from the west side of the claim area east and north-east where it eventually junctions with the Gregory River. Claimants discuss "Lawn Hill country" as encompassing most of the pastoral Station area known by this name. This includes the broad expanse of range country to the west and south of the homestead, an area named in English as the Constance and Edith ranges. It also includes the gorge country on Lawn Hill Creek, and the plains country extending eastwards from the foothills of the ranges - an area that includes land east as far as the start of "Gregory River country". In a southerly direction, this area encompasses land as far as the vicinity of Lillydale Spring.
143 The authors are here discussing the extended area of Waanyi country after the annexation of the former territories of the Injilarija and Nguburindi peoples. However the significance of the passage lies in the inclusion within the description "Lawn Hill country" of the Constance and Edith Ranges. These areas were indisputably part of traditional Waanyi country. Indeed, it seems that such country may have extended to Lawn Hill Creek which flows past those ranges, at least 10 km east of them. In those circumstances it is difficult to accept Dr Martin's argument that if Minnie's father was born at Lawn Hill, then he was born when the area was not Waanyi country. I should also point out that in re-examination, Professor Trigger said, at TS 332 ll 15-19, concerning the extent of Waanyi country:
… (T)heir traditional country always extended on to Lawn Hill, to the edge of the hilly country - in fact, to the vicinity of where the cattle station is, to the site Ngumari that has been named, but then - and so it was their traditions which assimilated and succeeded to the country to the east somewhat across the flat plains and up into the gorge.
144 Ngumari is a waterhole to the north-east of Lawn Hill homestead. Clearly, Professor Trigger considers that traditional Waanyi country extended at least to that point.
145 Dr Martin expresses other doubts about Mr Blackwood's account of his conversation with Roy Seccin. At para 206 of his report he observed that Roy had said that Minnie's country was "Lawn Hill station, going 'back up the gorge' ". In an account given elsewhere the expression is said to be "back at the gorge". Although Mr Martin expressed a view concerning this discrepancy I do not consider that it is of any great significance. The gorge appears originally to have been in Injilarija country although probably close to a point at which Injilarija, Nguburindi and Waanyi country adjoined. Roy Seccin did not say that Minnie's father's country was "at [or up] the gorge", but that Minnie's country was there. It is possible that the eastward migration effected an extension of Minnie's country. As I have said, it is also possible that Mr Seccin was merely indicating the general area of Minnie's country. There are many other possible explanations. In the end, I am not persuaded that these matters should lead me to reject Roy Seccin's view as unreliable.
146 At TS 362, I asked Dr Martin what it meant to describe a person as "Waanyi". He said at TS 362-3:
I would describe it as a community in the broad sense of that word. A community of people who under - who share a body of law and custom under which, firstly, they can trace descent from non-Waanyi forebears who had connection to country associated with that language name, with the Waanyi name, and who in turn have associations to particular areas in accordance with law and custom, Waanyi law and custom, within that tract of country associated with Waanyi. So it is a community of persons who share a body of law and custom which places them in a specific area of country and provides them with a specific identity, which is tied up with country, with language, with ritual and so forth.
147 Dr Martin was also asked to comment upon the recorded conversation between Mr Phillips, Mr Peterson and Mr Foster. He doubted whether it constituted unambiguous endorsement by Messrs Peterson and Foster of the proposition that Mr Phillips and Mona Phillips were Waanyi. Again, I doubt whether I should simply accept such an opinion. I keep it in mind in assessing the weight to be placed upon the evidence.
148 In the course of cross-examination Dr Martin agreed that the identification of Minnie's daughters as Gangalidda was probably based upon their place of residence near Burketown, in Gangalidda country, rather than upon any knowledge as to their actual background.