Which apical ancestors held rights and interests in the Non-claimant Area?
179 Mr Harris' position is that on the basis of the paucity of evidence about how and if a person holds rights in country, the lack of direct correlation between a person working on a pastoral station and holding traditional rights on that station, and the flexible and often contradictory evidence as to what groups certain purported apical ancestors belong to, there are no persons who could be accepted as apical ancestors for the Non-claimant Area.
180 By contrast, NQLC identified multiple persons who it says, more likely than not, held native title rights and interests in the Non-claimant Area at, or around, the time of Effective Sovereignty.
181 Dr Kwok posited the following people as more probably than not holding rights and interests in the Non-claimant Area at Effective Sovereignty and therefore as potential apical ancestors of Tagalaka people: Echo; Jimmy Strathmore aka Jimmy Anderson.
182 Dr Kwok posited the following people as more probably than not holding rights and interests in the Non-claimant Area at Effective Sovereignty and therefore as potential apical ancestors of Kunjen people: Clarke and Maggie, parents of Tommy Burns and Lucy Tommy; Rainbow/Christie/Paddy Walsh and Molly, parents of Rainbow Christie and Bowyang Charlie; Mudd and mother of Sloper Mudd.
183 Dr Kwok also considered Charlie and Maggie, parents of Johnny Casey, more probably than not holding rights and interests in the Non-claimant Area at Effective Sovereignty on the basis of self-identification of Johnny Casey as an Arib man.
184 Several other people were identified by Dr Kwok as potential apical ancestors, but she noted more research was required with respect to that claim: Belbara/Nelly Robertson; Short Charley/Charley A/Charlie Hayes; unnamed forebear of Topsy Cane (aka Owens); Left-Hand Charlie; Maggie Strathmore; Parents of Charlie Highbury; Pindi; Lawrence; Father of Leonard and his sister Doris; Maude wife of Jimmy Staaten, mother of Henry Gumhole et al and Ben Woomera.
185 Contrary to the submissions urged by the State, Dr Clarke did not consider that there were "strong grounds for holding that [Echo] had traditional interests" in the Non-claimant Area, nor that the connections between Maude, wife of Jimmy Staaten and Ben Woomera "warrant further research", nor that Sloper Mudd "more probably than not held rights and interests in the [Non-claimant Area] at sovereignty". Those submissions were premised on a misunderstanding of 19-30 of the Joint Report in which the opinions expressed in the right-hand column were those of Dr Kwok alone.
186 In the Joint Report, Dr Clarke and Dr Kwok were largely agreed as to the matters relevant to the assessment of whether an individual is a relevant apical ancestor. Those agreed factors include, in substance: a date of birth within two decades of Effective Sovereignty; a birth place or conception somewhere in or in the vicinity of the Non-claimant Area; assertions of interests made by living descendants in or in the vicinity of the Non-claimant Area with reference to the proposed individual; and whether or not the individuals have been shown by historical records, contemporary assertions, or - specifically, in Dr Clarke's opinion - other anthropologists, to have apical status in neighbouring native title determinations. Dr Kwok asserted that she also gave weight to evidence of physical presence in or in the vicinity of the Non-claimant Area, and considered it necessary to consider whether there was recognition of individuals as apical ancestors within the broader jural public. Dr Clarke did not seem to disagree with Dr Kwok's consideration of the broader jural public in principle, but noted the diversity of opinions from within this source and, for that reason, queried its utility. Ultimately, there was no evidence one way or the other about any view held by the jural public.
187 In the event I am wrong about finding that the Tagalaka people did not have an interest in the Non-claimant Area as at Effective Sovereignty, the relevant question is whether there is any arguable assertion of native title by anyone in the present day who traces their claim back through Tagalaka rights and interests in the Non-claimant Area which existed as at Effective Sovereignty. Of course, it is in this context that it is necessary to address the question of whether it is possible to identify the apical ancestors who had rights and interests in the Non-claimant Area. Similarly, and by extension of that analysis, it is necessary to address the question of whether it is possible to delineate the apical ancestors of those claiming to be of Kunjen and Koko Perrin descent from those who had rights and interests in the Non-claimant Area as at Effective Sovereignty.
188 Two Aboriginal witnesses gave evidence of being Tagalaka women, Tagalaka native title holders, and of being living descendants of Tagalaka apical ancestors who may have held rights and interests in the Non-claimant Area.
189 Gladys Callope swore an affidavit dated 10 November 2022 (Callope Affidavit). She was born in Normanton on 15 May 1943. While nothing turns on it for the purposes of this proceeding, I observe that Normanton is in the determination area of the Gkuthaan and Kukatj People Determination (QUD 29 of 2019; QCD2020/002): George on behalf of the Gkuthaan and Kukatj People v State of Queensland [2020] FCA 1310. After Ms Callope was born, she went "straight back to Croydon and then out to Strathmore Station". She said that Croydon is Tagalaka country.
190 Ms Callope said that she was a Tagalaka woman through her father, Edmond Miles, and her mother Vera Miles née Hayes. Both of her parents were born in Croydon. She said her father's father was "Left Hand Charlie", a Tagalaka apical ancestor. Ms Callope deposed that she thought her paternal grandmother was named Topsy, but noted that she was told by her father that "grandad had five wives" and "that there were five Topsys in the family". Ms Callope's mother's mother was "Mary Ann", and her mother's father was "Short Charlie". She said Mary Ann's second husband was "Jack Howard 'Bungy'".
191 Ms Callope's evidence was that she was told about Takalaka country by "[t]he old people", specifically her grandmother, Mary Ann, and George Wheeler - she described George as "the other old Tagalaka bloke", when she was "just [a] little kid sitting around". I note that, based on the timeframe provided by Ms Callope, this is evidence of what she was told some 70 years ago. Dr Kwok also records that Ms Callope had asserted her claims to Tagalaka country in an interview with Dr Kwok on 24 August 2022 in which she said, "[t]his is our country. My grandfather on my mum's side. My grandfather on my dad's side. They always said this is our country". It is not entirely clear from the Kwok Report what "country" Ms Callope was speaking about, but it appears contextually to be a reference to all of Strathmore Station.
192 Both of Ms Callope's grandfathers, "Short Charlie" and "Left-hand Charlie" are listed as apical ancestors on the Tagalaka People Determination and the Tagalaka People #2 Determination. Dr Kwok records that, according to Pannell, Short Charlie or "Short Charley" was born in Croydon and, according to the Croydon Police Letterbooks (1925 - 1964), was removed to Palm Island in 1929. She cannot, however, place him in the Non-claimant Area without more research. As to "Left Hand Charlie", Dr Kwok notes that "[t]here are a number of records relating to a man/men by the name of Lefthand Charlie in the Croydon area" and notes some uncertainty as to his identity, given "Tindale's inclusion of a man named Lefthand Charlie as a Kukatj man of Burketown and Inverleigh". She is also unable to confirm which of the variously mentioned "Left Hand Charlies" married Topsy. Similarly, Dr Kwok cannot place Left Hand Charlie in the Non-claimant Area without more research.
193 In oral evidence, when asked whether she recalled that the Tagalaka determination was over a large area of land that included Croydon, Ms Callope confirmed that she knew it was "a very large area" but could not remember all of the land. She also confirmed (with assistance from her niece sitting beside her in the witness box) that she partook in meetings at the relevant time to resolve the determination and approve the native title claims in question. She admitted, in effect, that she knew the determination excluded land north of the Einasleigh River, but "[couldn't] say how far up … I don't know". Ms Callope was unable to name any "landmarks or rivers" that would assist in describing Tagalaka country. She said she could not answer that question because "it's a big country", but also commented that she thought the parameters of Tagalaka country were "from Croydon as far as down to Carron, that going towards Normanton … [t]hat's our boundary … [i]t goes down there". The area described by Ms Callope is well to the south-west of the Non-claimant Area.
194 Although Ms Callope had said in the Callope Affidavit that "Tagalaka are the right people to speak for country up to the Red River", this was contradicted by her oral evidence that Tagalaka country stopped at the Gilbert River. This is consistent with the boundaries of the Tagalaka People #2 Determination area. In relation to the northern boundary of Tagalaka country, she remarked, recounting some memory about a meeting that was to be held with "the other mob": "I don't think we had done that, to the north. We were supposed to". Ms Callope said she "[could not] remember the name of them", nor any other relevant details.
195 Ms Callope said that she had been told about Pandanus Creek and Staaten River and was "pretty sure it's Tagalaka" who speak for that country. This evidence contradicts her testimony that Tagalaka country extends to the Red River. It would include a much larger area than she had previously said was Tagalaka.
196 Ms Callope's knowledge of features of the Non-claimant Area was lacking. Again, that is not surprising, since she has not been anywhere in the area in seven decades. She deposed that she had "heard about the Red River" and "can still hear and see [her] father and brother getting ready to go out to Red River and do some work out there, mustering". She did not say that this was part of her father's country. She herself had never been there. In her affidavit and in her oral evidence, Ms Callope referred to several places around Strathmore which she said were "special to Takalaka people" - in particular, the Gilbert River and Pelican Creek. Ms Callope explained that it was "all the fish" that made the Gilbert River special, remarking that one can catch "bream, freshwater bream, freshwater catfish" in that river. She also said that she recalls going up to Pelican Creek on one occasion - she didn't know how she travelled there but speculated that it may have been one of the occasions where the manager would "[take] us kids for a drive …wherever they were mustering … to open the gates". She was, however, unable to recall why Pelican Creek was said to be a special place. She again speculated "[i]t would be, like the Gilbert River, due to "[a]ll the fish" that could be fished from Pelican Creek. Ms Callope also indicated that waterholes called Battle and Davison respectively were special places, as were Yellow Hole and Wallabadah. She could not say whether the Battle and Davison waterholes were close to the homestead, and only recalled "going there fishing". She later confirmed that she went down to the areas proximate to Battle Lagoon and "around the homestead" to "[fish] and … [chase] goanna", reciting the nature of the activities referred to in the Callope Affidavit (at [30]), relevantly:
At Strathmore, we got fish, turtle and goanna.
197 As to Wallabadah, Ms Callope said that was "another place that the manager used to take [them]". In explaining why that place was special to Tagalaka, she said "there was fish there … [a]nd goanna, whatever food - like, wild bush tucker". As to Minnie's Dip, Ms Callope said she "[remembered] that name, but … [couldn't] remember … the area itself". Similarly, when asked about why Yellow Hole was special to Tagalaka, she said "it's the same thing as all the bush tucker".
198 Ms Callope's evidence was that, whenever the ringers were mustering or camping, the manager would take stores down to them, and would take Ms Callope and other kids for a drive, and to open the gate for the manager's car. Ms Callope could not recall all of the places that the manager drove them but was "sure" that they visited Yellow Hole. The tenor of her evidence was that the bulk of her knowledge about the places on and around Strathmore, to the extent that she can accurately recall any of them some seven decades later, whilst being driven around by the Station manager.
199 Bernice Beryl Douglas swore an affidavit dated 9 November 2022 (Douglas Affidavit). She, too, is a Tagalaka Elder and Tagalaka native title holder.
200 Ms Douglas was born on 6 April 1946 in Normanton. Her father, Herbert Douglas, was born in Croydon, in Tagalaka country. Her mother was Vera Douglas née Owen, who was also born in Croydon. Both of Ms Douglas' mother and father worked on Strathmore Station.
201 In her affidavit, Ms Douglas deposed that Tagalaka country includes Croydon, Pelican Creek, Strathmore Station, Minnie's Dip, Yellow Hole and Old Miranda. She said she had been,
taught this by my mum and dad and the other old people out there. We knew Strathmore and Red River. There was always talk with our old people about Red River. Granny Edith's mob is from the Red River because of old Echo. Dad also spoke about Red River, about places he went to hunt and fish. Sloper Mudd used to talk about Pelican Creek, he knew that country. Sloper Mudd was my grandad that worked on Strathmore Station.
202 I observe that Ms Douglas' father's mother (paternal grandmother), Edith Douglas née Echo, is listed as an apical ancestor on the Tagalaka People Determination and Tagalaka People #2 Determination. Ms Douglas also deposed that Edith told her that she came from the Staaten River and "had a connection with Red River", and that Edith's father was "Old Echo", who is Tagalaka. Ms Douglas also deposed that Edith's mother was "Daisy, she was probably from around Croydon", and that Edith's siblings were "Tommy Burns and Maudie". Ms Douglas said that her father's father is Douglas Frazer, and that her father's siblings are Frank, Reggie, Henry, Jack, Rene and Myrtle. There were also two adopted siblings, Francis and Kathy.
203 Dr Kwok reports that, on 25 April 2022, she interviewed Ms Douglas' cousin, Garry Owens, whose father, Manny Owens, also worked on Strathmore Station. Garry is recorded as saying of his father, "he knew about Red River country and Strathmore" and that his father always referred to Red River as "Granny Edie's country".
204 Ms Douglas deposed that her mother's mother was "Topsy Cane", who came from Croydon and who is a Tagalaka apical ancestor. "Grandma Topsy's" siblings were Jessie Fred, Meredith and Maudie Christo. Ms Douglas also deposed that "Sloper Mudd was [her] grandad that worked on Strathmore [S]tation".
205 In terms of traditional ownership of the Gilbert River, Ms Douglas' oral evidence was that "it's Tagalaka I would say". She did not know that this Court had determined the Gilbert River to be Ewamian country. She confirmed that she was "sure" that she had been to Pelican Creek, and stated that she "[knew] [its] name", but could not provide any further detail. She was asked what part of Strathmore Station she considered to be Tagalaka country, and whether she was referring to the land north or south of the Einasleigh River. Ms Douglas was presented with a map in an attempt to point out the relevant geographical markers more accurately but noted that she "[didn't] know about maps". She did recall, however, she was "sure [they had] passed through [the Einasleigh River] on [their] way to go to the Palm Island by plane".
206 Ms Douglas was also unaware that this Court had made a determination that Old Miranda was Kurtijar country. Ms Douglas said that she had been to Minnie's Dip when Sloper Mudd, her mother and "other old ladies" would go fishing, and she would "[walk] about in the water and [find] fish and … [t]urtle and lily …."
207 The only circumstance said to place Old Echo within the Non-claimant Area is the apparent connection between his name and Echo Creek, which runs across the south-west portion of the Non-claimant Area, but also well into the area of the Kurtjar People Determination to the north-west of the Non-claimant Area up to the junction with Wyaaba Creek, to the East of Vanrook Station. Dr Kwok reports that Ms Douglas' niece, Lorena, told her this in an interview on 21 April 2022, but Lorena is not reported as having said how she knew this information. Otherwise, as noted by Dr Kwok, Echo seems to have worked in and around Croydon and on Strathmore Station.
208 By reference to the Joint Report at 20, the State submitted that "[b]oth experts agree that Echo had interests in the application area". That submission, however, was misconceived. The observations in the righthand column of the Joint Report in the table from 19-30, headed "Table: sample of potential native title rights holders at effective sovereignty or soon thereafter" from were those of Dr Kwok only. Dr Clarke maintained his position that there are no individuals who are obvious apical ancestors for the Non-claimant Area (Joint Report at 19). I observe that all the evidence that was adduced is consistent with Echo's recognition as a Tagalaka apical ancestor, but none gives rise to any degree of confidence that he held traditional interests in the Non-claimant Area.
209 As is discussed below, Ms Douglas' grandfather, Sloper Mudd, identified as Kunjen. The only assertion of an interest by living descendants of a potential apical ancestor to Kunjen rights and interests was made by Glennis Rose Mudd, whose affidavit was dated 11 November 2022 (the Mudd Affidavit), and who claims descent from Sloper Mudd.
210 Ms Mudd said that her grandfather was a Koko Perring (Berrin) man from the Staaten River and that her grandmother, Rosie Mudd, was a Kunjen woman born in the old Trubanamen mission in Kowanyama. Her evidence was: "I get my traditional identity from them".
211 Lahn & Winn record in 2005 that Ms Mudd had told them that she was unsure about Sloper's tribal affiliation, "[b]ut offered 'Koko Perrin'" (Lahn & Winn 2005:100). They reported that another of Sloper's granddaughters, Tania Casey, described him as a "Kowanyama man". Both Ms Mudd and Ms Casey stated that Rosie Mudd was Kunjen. Lahn & Winn also report that "Rosie is said to have moved from Kowanyama and met Sloper in Normanton before they 'ended up' moving to Georgetown" (Lahn & Winn 2005:100).
212 Ms Mudd's understanding of her grandfather's identity was not accepted by either Dr Clarke or Dr Kwok, both of whom were of the opinion that he was Kunjen. Their opinion was based on Sutton's work, as cited by Dr Clarke, who reported that Sloper Mudd identified as "Kunjen" and "was a 'full speaker' of Kunjen, with his wife Rosie and his children … having only some knowledge of it". Dr Kwok also reports that Sloper Mudd identified himself to Professor Sutton as Kunjen (Sutton's notes, cited in Lahn & Winn 2005:98). She observes that, "[t]he group and linguistic identity of Sloper Mudd today continues to be complicated and, arguably, confused". Dr Kwok goes on to point out that Ms Casey considers Sloper to have been Ewamian, apparently due to his "long residence at Georgetown", but contrary to what was recorded by Lahn & Winn.
213 Ms Mudd gave the following evidence:
My grandad was the head stockman on Strathmore Station for nearly 50 years. My mother worked there with my auntie and uncles as well. My mother lived in huts with my aunties and uncles Alfie Mudd, Clive Mudd, Benny Mudd, Angus Mudd and Mona Mudd Casey out there. They did all sorts of jobs but mainly stockmen work and house-maiding.
214 Her evidence was also that:
The country in the blue shaded area [on the map at GM-1], around Red River and Staaten River in Strathmore Station belongs to the Mudd, Burns, Major, Rainbow and Douglas families. I was told this by my grandfather. My grandad's sisters were Edith Echo Douglas and Minnie Mudd, who married a Major from Kowanyama. My grandfather's brother was named Tommy Mudd, but he had his name changed to Burns from a property owner out here. They have all passed away now. I know that is their country because I am the oldest grandchild in the family. I have been around them old people and they told me about that country.
215 Ms Mudd said that her grandparents "taught us about country when we went out there", being Strathmore Station. Ms Mudd confirmed that she was told those matters by Sloper Mudd when she was a child, and when Sloper Mudd worked at Strathmore Station. She denied that the ownership of country was explained by Sloper with reference to maps, or boundaries or landmarks - only "word of mouth". On being asked whether what she was told about who the land belonged to related to all of the land in the Non-claimant Area or only part of it, Ms Mudd initially answered "[y]es" (all the land), but went on to say, "[w]ell, he really stated the Red River area", being the northern area, adding also that she had "never been out there". Ms Mudd also deposed there is "lots of forest country that way" and explained that her grandfather "knew it very well because it was his country". She deposed further that when people came "paddy dodging in the old days" people would come to him in Georgetown and take him "to help find them things".
216 Ms Mudd gave evidence that her grandparents,
taught us about country when we went out [to Minnie's Dip]. We camped, hunted and fished out on that country. We also went to Yellow Hole, Gilbert River and Einasleigh River.
217 She recalled that when visiting her grandfather at Strathmore Station, they often stayed at Minnie's Dip near the Einasleigh River, which is within the Non-claimant Area. She also referred to where they stayed as the "outstation for Strathmore", which was explained by reference to the map (Exhibit 9F) as being "Yellow Holes", just south of the Gilbert River, and to the west of Strathmore Station. Yellow Holes is situated outside the Non-claimant Area. Ms Mudd said that they did not hunt or fish in the lands to the north of the Einasleigh River.
218 Ms Mudd was unable to say who owned the country between the Gilbert River and Einasleigh River. She did not know that the Ewamian People had a determination over that land, nor had she been told that that land was Ewamian country. She neither knew the nature of the ownership of the land south of the Gilbert River, nor that the Tagalaka People had a determination over that land. She did not accept with certainty that that land was Tagalaka land - she "[thought] so" but did not know for sure. She confidently stated, however, that Croydon was considered Tagalaka country.
219 When asked about the content of what she was taught about country by her grandparents, Ms Mudd explained that "[t]hey would just tell us that this is their country … [t]hey roamed … the land on that country". When asked about the particular geography of the "country", Ms Mudd explained "they taught us about Strathmore Station, the country there, and the Gilbert River and Einasleigh River". When asked to explain the "types of things they taught [her] about country", she said "[j]ust fishing and hunting and country", although they "only took what [they] needed for [themselves]" noting that "[w]e was only … kids". She said further that when she got older, she "didn't go back there".
220 In explaining the nature of the time she spent with "them old people", as she had deposed to in her affidavit, and what they told her about country, she said that it was her grandfather's sister, Edie Douglas, to whom she was referring. Edie Douglas had lived in Croydon when Ms Mudd was growing up. She explained that they used to travel up and down from Georgetown to Croydon. I observe that that is between Ewamian and Takalaka country. Ms Mudd did not recall the type of things that Edie told her about country. She was also unable to give any further information about any other people who had told her about their country, stating that she had never seen Tommy Burns, because "he died before [she] got older to understand", and Minnie Mudd also "died before [she] ever got older to understand".
Exhibit GM-1 to the Mudd Affidavit
221 Ms Mudd explained that Edie Douglas was her grandfather's (Sloper Mudd) sister.
222 Ms Mudd confirmed that she knew her grandfather, Sloper Mudd, is claimed by the Kurtijar People as one of their ancestors but stated that she did not know of him to be a Kurtijar person. Ms Mudd gave evidence that she knew that the Kurtijar People also claim Sloper Mudd's brother, Mr Burns, as one of their ancestors and confirmed her knowledge that Mr Burns was buried at Dorunda Station on Kurtijar country.
223 Ms Mudd said that her grandfather, Sloper Mudd, "was born at the top of the Smithburne River, which runs into the Staaten River". As Dr Kwok observed, the Smithburne River "does not literally flow into or from the Staaten and Red River but the various channels of these streams converge over a stretch of country, that is encompassed within the Van Rook lease, as well as neighbouring Miranda Downs and Strathmore Stations". In fact, the Smithburne River converges with the Gilbert River, after running almost parallel with it from just west of Stirling, just north of Miranda Downs, to the west of the Non-claimant Area and within the area of the Kurtjar People Determination.
224 This is consistent with Dr Kwok's reference to Lahn & Winn's research where the authors observe, "[b]ased on their research", "Sloper Mudd was most likely born on or about the Staaten, somewhere in the Inkerman to Dunbar Station area". However, in Lahn & Winn 2005, they said that Ms Mudd had told them that Sloper was born "not far from Delta Down" and that "Glennis linked Sloper more to the Macaroni side of the Staaten River" (Lahn & Winn 2005:100). Lahn & Winn also reported that there seemed to be a "marked emphasis" on "the most western inland section" of the Staaten River "with informants mentioning, for example, 'Macaroni [station] side' and 'more or less Dorunda side', i.e. approaching the coastal area" (Lahn & Winn 2005:99).
225 It is therefore unsurprising that Sloper Mudd and Tommy Burns are listed as apical ancestors on the Kurtjar People Determination. Sloper Mudd is also listed as an apical ancestor on the Ewamiam People #2 and #3 Determinations, and is included in the Kowanyama People Determination, the Kowanyama People #2 Determination (QUD 673 of 2014; QCD2024/007; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 26) (Kowanyama People #2 determination) [2024] FCA 742 (Sch 1, (ss) any of the siblings of … Tommy Burns)), and the Kowanyama People #3 identified parcels Determination (QUD 673 of 2014; QCD2024/008; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 27) (Kowanyama People #3 identified parcels determination) [2024] FCA 743 (Sch 1, (ss) any of the siblings of … Tommy Burns)).
226 He is also included as an apical ancestor of the Kowanyama People in the Kunjen Olkol and Kowanyama People jointly held area Determination (QUD 673 of 2014; QCD2024/009; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 28) (Kunjen Olkol and Kowanyama People jointly held area determination) [2024] FCA 744 (Sch 1, 2 any of the siblings of … Tommy Burns")), and is similarly included as an apical ancestor of the Kowanyama People only in the Kowanyama People, Kunjen Olkol and Olkola jointly held area Determination (QUD 673 of 2014; QCD2024/011; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 30) (Kowanyama People, Kunjen Olkol and Olkola jointly held area determination) [2024] FCA 746, (Sch 1, 2 any of the siblings of … Tommy Burns")).
227 Sloper Mudd is, however, not included as an apical of the Kunjen Olkol People in the Kunjen Olkol Determination (QUD 673 of 2014; QCD2024/006; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 25) (Kunjen Olkol determination) [2024] FCA 741 (Sch 1)), nor in the Kunjen Olkol and Kowanyama People jointly held area Determination or the Kowanyama People, Kunjen Olkol and Olkola jointly held area Determination.
228 As has already been observed, the fact of inclusion of an apical ancestor in other native title determinations does not, in itself, preclude a finding that a person should be recognised as an apical ancestor on another determination. Nevertheless, Dr Clarke's evidence was that to do so "does often pose difficulties anthropologically" and "does beg questions".
229 Dr Kwok cites Lahn & Winn in support of her statement that "it is clear that Sloper Mudd spent his life heavily involved in the pastoral industry". According to Lahn & Winn, Sloper Mudd is said to have worked at stations including Abingdon Downs, Dagworth, Forest Home and Miranda Downs but the majority of his working life appears to have been in the Georgetown area and on Strathmore Station in particular (Lahn & Winn 2005:105).
230 The fact that he spent the majority of his working life on Strathmore Station no doubt accounts for "Sloper Mudd's knowledge of the country about Strathmore, and particularly the Red River area". As Lahn & Winn observed, "Sloper was described as 'always going back' to Georgetown and Strathmore, where his skills, experience and local knowledge of the country guaranteed him employment" (Lahn & Winn 2005:105). Dr Kwok cites a passage from Lahn & Winn 2005, in which an unnamed informant is reported as saying: "'[Sloper Mudd] used to go out to that Red River. He was the only old bloke who knew that place. Knew the places where to go, where not to go'; 'you've got to have an old bloke like Sloper to tell you where to go [to urinate/defecate] - 'don't go there''".
231 Neither of the experts is able to say with any confidence that it is probable that Sloper Mudd held rights and interests in the Non-claimant Area. Lahn & Winn record that it appears Sloper Mudd considered returning to Kowanyama permanently in about 1973, four years before his death (Lahn & Winn 2005:104). Relevantly, they record the minutes of a Council Meeting held on 31 January 1973 at Kowanyama (Lahn & Winn 2005:104):
Council received a request from Mr Sloper Mudd, an old resident of Kowanyama to return to this community from George Town [sic] and take-up permanent resident here [sic] together with his family after the 'wet'. Moved by the Chairman, seconded by the Deputy Chairman that permission be granted. Carried.
232 It is curious that, given their otherwise heavy reliance on Lahn & Winn, neither Dr Clarke nor Dr Kwok referred to this passage in their respective reports. It tends to confirm the other evidence that Sloper Mudd was a Kowanyama man (possibly Koko Berrin or Kunjen, albeit recognised as a Kurtijar apical ancestor), who wished to return "home" in the latter years of his life. That home was not within the Non-claimant Area.
233 In the present circumstances, the weight of the oral history is not strong. Ms Mudd's evidence is as to matters she was told over 50 years ago. Further, it contradicts evidence she gave to Lahn & Winn almost 20 years ago, when I infer her memory of the matters discussed was likely to have been more accurate. Moreover, everything she can recall being told by her father is consistent with the knowledge of the land he would have acquired during his very long tenure as head stockman of Strathmore Station. That explains how he, and the other individuals working as stockmen on Strathmore Station, had developed "some working familiarity with the Non-Claimant Area" but, as Dr Clarke acknowledged, "there is no evidence to suggest that [that] had led to rights and interests of the kind that could be handed on to their descendants after they had passed away".
234 On the basis of all the evidence that has been put before the Court in relation to Sloper Mudd, I am satisfied, on the balance of probabilities, that he cannot be accepted as an apical ancestor for the Non-claimant Area.
235 As to Clarke and Maggie, parents of Tommy Burns and Lucy Tommy, Dr Kwok notes that "Tommy Burns had several children to his wife Judy and there is an extensive network of descendants at Normanton, Kowanyama and beyond". Dr Kwok has not identified any living descendants of Tommy Burns who claim to assert an interest in the Non-claimant Area. The most recent assertion was said to have been made in 2005 to Lahn & Winn by a possible grandson of Tommy Burns (Roger Inkerman) when he said, "top side of the Staaten's all my country if you go by the father" (Lahn & Winn 2005:116). Dr Clarke interprets this description to refer to Dunbar Station and the region to the north of the Non-claimant Area. As Dr Kwok noted, Alfie Inkerman (also known as Alfie Burns) (considered the apparent son of Tommy Burns) identified himself as of the Rib tribe (Paul Black, Fieldwork in the Normanton area, 1974-75, 6 March 1975. Mid-year report to AIAS (1975) (unpublished)). In the Martin Report at [91], Martin refers to Black's field notes in which Black recorded "Alfie Tommy" as saying,
all the Ariba an' Kurtjar was mixed, you see, all mixed, 'n then come into mob, you know, an' they get together and they go for … holiday, well they get mixed up, you see, well they're all one mob, you see.
236 Martin went on to record that "[s]pecific individuals who are said to have 'married in' to the Kurtjar people include Johnnie Casey and Bynoe B as well as Tommy Burns, Sloper Mudd, and Rainbow Christie" (Martin Report at [92]).
237 Dr Clarke points to the examples of several inconsistencies in the oral evidence taken from different sources. He observes,
[i]n recent decades, Tommy Burns was chosen as an apical ancestor for the Kowanyama People, Kurtjar People and [the discontinued] Red River native title claims. In the case of the Kurtjar People claim, the description of the connection to country for this family is on the lower Staaten River to the northwest of the Non-Claimant Area.
(Citations omitted.)
238 Dr Clarke also referred to a subsequent report by Martin dated 24 June 2019 (Report for the Kurtijar People Native Title Claimant Application QUD483/2015. Prepared for HWL Ebsworth Lawyers. St Lucia, Queensland: UQ Culture & Heritage Unit. 24th June 2019 (2019b)), in which Martin wrote, "[t]he Burns family is another we might classify as 'floaters'. Kowanyama elders describe them as coming from the Staaten River and suggest the bulk of their country lay on Dorunda". Dr Clarke considered that, based upon this description alone, "it is reasonable to conclude that Tommy Burns is not a likely candidate as an apical ancestor for the Non-claimant Area". However, based on all the data he had analysed, Dr Clarke concluded that "it can be determined that Tommy Burns had links to the areas to the west and northwest of the Non-Claimant Area" (Clarke Report at [321]). I accept that opinion.
239 So far as concerns Christie and Molly, the living descendants identified by Dr Kwok were unwilling to take part in an interview and have not made any claim to the Non-claimant Area (Kwok Report at [439]).
240 Mr Christopher Henry, in his affidavit sworn on 10 November 2022 (Henry Affidavit), deposed to his claim to the Non-claimant Area being as a Koka Berra (Koko Berrin) man through his father, Henry "Gumhole" Jimmy, and his mother, Mainie Kangaroo. Mr Henry was born in Kowanyama on 27 September 1960. He grew up and has lived there for his whole life. He was one of 13 children, but most of his siblings are now deceased (there being six survivors). He remarked that he has many nieces and nephews, who live in Normanton and Kowanyama.
241 Mr Henry said his father was born in a lagoon "somewhere at the junction of the Wyabba and Staaten River" and was "a Koko Berrin man through his descent from Koko Mandu". Mr Henry says that his father's parents were "old Robert and nana Jemima Mission" and that his great grandfather on his father's side was Jimmy Staaten. His mother's parents were Victor Highbury, who was Kunjen, and Annie Kangaroo. Victor's parents were "old lady Minnie and Old Kangaroo".
242 With assistance from a map (Exhibit 9C), Mr Henry confirmed his understanding that that land where his father was born was "a bit west of the land the subject of this application". He asserted that "[t]he Non-claimant Area of Strathmore Station is in my dad's country". In explaining which group speaks for that country, he said "just my … father's country that further up east towards … the Staaten … from the rivers back into the Red River with the … Palmer River and into the Palmer River junction that come across … from the Staaten across to … the Red River". He said the name of the people that the country belongs to (his "dad's country") is Quanda (it being Quanda country) who are "in that area … [running] down from the … mouth of the Lynd River … to the west side to the Wyaaba". He continued:
[Quanda country] [r]uns off the Staaten and right back to the - come off - well, almost - they almost side by side really, the Staaten River and Red River. And there's a - there's a big permanent lagoon. I - I was only but 15 years of age when that - when he - when I was up there when he took me back up - up in that country again … Then showed me almost that country right back down to the Wya - right back to the Staaten to the … on the west coast back towards the Staaten. Almost on the Staaten really, right back.
243 However, Mr Henry's evidence was that the Non-claimant Area also belonged to other traditional owners, such as the Douglas and Mudd families. In the Henry Affidavit, he deposed that:
Different mobs traded around that area. We are talking Tagalaka, Kunjen, Koko Berrin and Kutjar. You got Kutjar west side with Koko Berrin. And you got Kutjar and Taglaka west south side, and east you got Kunjen with Koko Berrin. All those tribes were traditional owners in the area, you knew exactly your area and you knew your country in that area, but you will unite with this mob here this side and the other mob this side.
244 What became Exhibit 24 was Mr Henry's markings on a map that was Exhibit 9C. That map is set out beneath [245]. The orange circle shape on the map identified the area of country he said belonged to his father.
245 Mr Henry was asked, when he identified that to be his country, what people he identified that country to be for. He recalled that "in the language call it the Kokoberrin" and that "there's another tribe that we call the Quanda" that was a "bit of mix with Kundjen" as a "tribal group" - he claims to still be able to speak that language today. He continued:
But I - I been acknowledged that country when I was young, and as I got older and then I finally went back to Normanton and tried to trace back where my - my stolen generation. They wasn't working in a station. They were living in the river right in the area right up from the - they used to call it Station Creek, but the Station Creek was a Wyaaba, Pelican and Red River right back up to that. It covers off the - from the Lynd River.
…
It was the Red River itself. Up the top-end of the Red River going into - almost back in the Lynd River up the top-end, on the east side.
Exhibit 24
246 As noted by Dr Clarke, Mr Henry's assertion that his father's traditional country extended from the near coast back into the northern part of the Non-claimant Area would denote an extremely large estate. It is also inconsistent with existing determinations. Mr Henry accepted that the land he had included within his circle to the west of the Non-claimant Area was Kurtijar land, and that the area to the east, which included Abingdon Downs and New Bulleringa, was Ewamian land. That I can have little confidence in Mr Henry's description of what he claims to have been his father's country is reinforced by the reported evidence he gave to Martin on 28 November 2018, where he is reported as having said (Martin Report at [207]):
[Kurtjar people are] on the other side of the Staaten, right back to the Gilbert, to the other side of the river here. You got Dorunda there, Macaroni, bottom end of Vanrook, down Wyaaba, coastline, Macanoni Island, Karumba, to back here [Normanton] … I don't know how far he goes up [inland] … The Norman River, that's the border line [for the Kurtjar]. You got Rainbow here, Gilbert here, other mob here [gesturing in different directions], but they all come under the same mob. Kurtjar country goes Norman River, Carron River, right up to the Staaten, [and] it went sunrise way, east. I thought they would've went up to the Lynd River.
247 Mr Henry's identification as Koko Berrin is at odds with any claim to the Non-claimant Area. Neither Dr Clarke nor Dr Kwok place Koko Berrin within the Non-claimant Area at Sovereignty. Dr Kwok said:
Meantime, although neither Kurtjar nor Koko Berrin are obviously reflected as having interests in the non-claimant … area from an ethnohistoric point of view, there are persons who currently identifying under these labels, who arguably have legitimate claims on the country in terms of their ancestry. A number of these ancestors were grouped under the Kunjen label in Lahn and Winn's study.
248 Dr Kwok observed that some of Mr Henry's relatives, and at times Mr Henry himself, identify themselves and their forebears as Kurtjar but also Koko Berrin (Kwok Report at [462]). Similarly, Dr Clarke concludes that Mr Henry's "account of his father, Henry (Gumhole) Jimmy, being a Koko Berrin man is consistent with a cultural connection to country near the mouth of the Staaten River (i.e., Gum Hole Station) to the northwest of the Non-Claimant Area" (Clarke Report at [396]).
249 It is fair to observe that Dr Kwok did not express any real confidence in Mr Henry's understanding of the basis of connection to the Non-claimant Area, stating "it is not evident that [he] has a firm grasp of how his interests are founded" and pointed to the "difficulties in interpreting the basis of connection for this family to the non-claimant … area". Dr Kwok nevertheless placed considerable importance on Mr Henry's assertion that "he was shown the country by his father and given to understand that it belongs to him" (Kwok Report at [461]).
250 As to that matter, Mr Henry gave evidence as to why he went out with his father for three months when he was thirteen years old. He said:
Well, my dad was going and I said, "Well, I will come with you." I thought we just - going to just go over the river here and back on the same day. But we went out there for a few months travelling. And I said, "I want to go home now." He said, "Yes. Well, we are going home." I said, "Where, you know?" And being a young fellow, just going along with the flow. And then he said, "This is home here." I said, "No. I want to go back home, back to Kowanyama." And then he said, "No. This is - this is where we are." Then I - I accepted it. I said, "Well, I can't do anything." And you have to go along with the flow and come to find out that they were living in that Red River, right round in the Staaten River, right, with the … and I - I just went along with what was there. And then I have the experience of my own. Then I - later on to find - now, when you guys came and I said … this should happen 20 years ago back or 30 years ago back. Then I would have - would have been in luck with my dad then to put - explain all that.
251 Mr Henry circled in green the area on Exhibit 24 where he said his father took him. It included Torwood and Abingdon Downs, both of which Mr Henry said he had visited. Mr Henry's oral evidence was that they were "staying down near the river bed … [being] the Red River itself … [u]p the top-end of the Red River going into - almost back in the Lynd River back up the top-end, on the east side". That area is well aside the Non-claimant Area. Mr Henry was unable to identify any landmark that would suggest that he and his father spent the three months in the Non-claimant Area. It is tolerably clear that Mr Henry's account of his father being a Koko Berrin man is consistent with a cultural connection to country near the mouth of the Staaten River to the northwest of the Non-claimant Area. His father's connection to Strathmore Station, however, appears to be entirely historical, consistent with his "many, many years" of doing station work. This is consistent with Dr Clarke's opinion, which I accept.
252 I am not persuaded, on the balance of probabilities, that there is any evidence to displace Dr Clarke's opinion that Maude - wife of Jimmy Staaten, mother of Henry Gumhole et al - nor Ben Woomera, as possibly Koko Berrin people (Kwok Report at [466], [469]) are apical ancestors who held rights and interests in the Non-claimant Area at Effective Sovereignty.