REASONS FOR JUDGMENT
1 In 1998 the Tableland Yidinji people filed two applications for determination as to the existence of native title. On 1 August 2000 the Court ordered that the two applications be combined. This combined claim is the subject of today's determination. Sadly, whilst the case has been proceeding, one of the applicants, Peter Rosas, an elder has passed away. Catherine (Nola) Joseph and Evelyn Dawn Johnson are now the applicants. The respondents are the State of Queensland, Tablelands Regional Council, Cairns Regional Council, and Ergon Energy Corporation Limited.
2 The claim area is located in a particularly beautiful part of North Queensland, around the upper Barron River and its tributaries and Lake Tinaroo on the Atherton Tableland. It is only part of traditional Yidinji country. In their report (to which I shall refer in more detail) Hafner and Weiner say:
Yidinyji country stretches from the Cairns and coastal region south of Cairns up through the Goldsborough Valley and Mulgrave River regions to the Atherton Tablelands. Yidinyji territory has previously been described as divided into separate ecological zones, with a corresponding division of the social world … . Indigenous groups identifying as Yidinyji comprise five separate native title claim groups, each claiming specific right to speak for a portion of country traditionally recognised as being encompassed by the Yidinyji language-culture complex. The claimants distinguish themselves from other Yidinyji social groupings thus defined, although like them, they describe themselves as members of the "Yidinyji tribe". The claimants are identified by other Yidinyji people as "Tableland mob" … or as "Top End Yidi" …., in distinction to other Yidinyji groups: the people of the Cairns region ("Gimuy"), Yarrabah ("Mandingalbay"), Lower Coastal, and the Goldsborough Valley ("Valley mob", or "Dulabed" and "Malanbarra") with whom they share a common tribal linguistic identity.
The Tablelands Yidinyji claimant group comprises four separate families in the post-classical sense. Members of these families trace their descent from ancestors who were known to have used, occupied and had the authority to speak for country in the claim area. Membership in the group depends on being a member of one of these Tablelands Yidinyji families, self-identification as a Tablelands Yidinyji person, and being recognised and accepted by the Tablelands Yidinyji as one of their members. The Tablelands Yidinyji generally talk about themselves as being "from here" (i.e. the Tablelands), without necessarily invoking a group name. A senior applicant, Nola Joseph, remembers her mother referring to the Yidinyji people of the Tablelands as "Wayimbarra", a term she remembers as referring to a type of honeyeater which was found all over the Tablelands. This term is similar to a word Meston … recorded, Warganbarra, meaning 'open forest people'. Charlie Green and Dawn Johnson say they were told by their parents that their grandfather was of the Gambirrbarra or Bundabara people. These terms have been recorded by Dixon, and before that by Meston … .
Thus the members of the group see themselves as related to but distinct from other Yidinyji people associated with the Mulgrave River valley and the Cairns and coastal regions, with whom they share relationships based on common identity and kinship. The applicants are members of families whose genealogies are appended to the report. The claimant group includes but is not limited to the applicants mentioned in section 3.1 above.
3 In 2001 this claim was referred to mediation in the National Native Title Tribunal (the "Tribunal"). On 24 October 2012 the Court ordered that mediation cease. The matter was then subjected to intensive case management by a Registrar of the Court, leading to this determination today.
4 The Act authorizes the Court to determine that native title exists over areas in respect of which there is no existing determination. The Tableland Yidinji claim area is not subject to any other claim or approved determination. Where, at any time after notification, the parties agree upon the orders to be made in relation to such proceedings, the Court may make appropriate orders. In exercising the judicial power of the Commonwealth, this Court resolves disputes identified by the parties. The parties may narrow those issues by admission or concession. Any such agreement must be freely made, on an informed basis. In some cases, the Court may decline to act upon such admissions or concession. Where, as here, the proceedings have significance for people other than the parties, I must give careful consideration to the appropriateness of the proposed consent orders.
5 I see no reason to doubt the appropriateness of the parties' consensual resolution of the matters previously in dispute. They have had the benefit of legal advice and substantial anthropological research. The proceedings were commenced over 13 years ago, and have been publicized in accordance with the Act. I am satisfied that the proposed orders have been drafted with regard to the public interest, represented by the State of Queensland and relevant local authorities.
6 The parties agree that the native title rights and interests identified in Part 1 of Schedule 1 are, subject to paragraphs 9, 10, and 11 of the proposed orders, the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) camp, and for that purpose, build temporary shelters;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d) take use and share natural resources from the land and waters of the area for personal domestic and non-commercial communal purposes;
(e) take and use the water of the area for personal, domestic and non-commercial communal purposes;
(f) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;
(g) conduct ceremonies on the area;
(h) teach on the area the physical and spiritual attributes of the area;
(i) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; and
(j) be buried and bury native title holders within the area.
7 Where the Court determines that native title exists, s 94A of the Act requires that the Court determine the matters mentioned in s 225. I must therefore identify:
the persons or groups holding the native title;
the nature and extent of the native title rights and interests in relation to the claim area;
the nature and extent of any other interests in relation to the determination area;
the relationship between such rights and interests and those other interests; and
to the extent that the land and water in the claim area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease, whether the native title rights and interests confer exclusive possession, occupation, use and enjoyment of that land and water.
8 In considering this matter, I have been greatly assisted by an anthropological overview prepared in 2004 by Dr Diane Hafner and Dr James Weiner and updated in October 2006, a 2009 report by Dr Anthony Redmond entitled "The Relationship between the Tableland Yidinji Native Title Claim Group" and the "Regional Aboriginal Society of the Cairns Hinterland and Coastal Plain Region and an historical report" by Dr Rosalind Kidd written in 2009.
9 Hafner and Weiner say, concerning the pre-history of the area:
Horsfall, who conducted PhD. research in the north Queensland rainforest (1987), reports that the earliest known date of occupation in the rainforest region is 5100 BP at Jiyer Cave on the Russell River … to the south of the claim region. She notes that although the data is "spare and somewhat contradictory", there appears to have been increased frequency of use of sites within the last 2000 years. Both Jiyer Cave and another site, MR2 in the lower Mulgrave River valley, contain the remains of toxic nuts up to 2000 years old. Horsfall sees the presence of these remains as evidence for the prehistoric occupation of the region, because complex processing is necessary to render these nuts edible.
Horsfall and Fuary see no reason to believe that the wet tropics region of northeast Queensland had not been occupied by Aboriginal groups since the earliest days of human settlement in Australia … . Two findings indicate this. First, the presence of charcoal particle deposits in pollen cores at Lynch'sx Crater on the Atherton Tablelands indicates the possible presence of people and their firesticks from about 38000 years ago … . These pollen deposits indicate that at about that time, the region of the Crater was covered by rainforest, but between then and 26000 BP, this vegetation type was gradually replaced by sclerophyll. This suggests a reduction in rainfall during the period. The increased amount of charcoal present in the deposits suggests increased burning, possibly due to intensified human activity.
At about 9000 BP, the record indicates that rainfall increased, and rainforest again colonised the Atherton Tablelands. This implies that the rainforest culture known from the ethnographic record would have developed from the time of the expansion of the rainforests … . The second piece of evidence Horsfall discusses is the Aboriginal legend of the formation of the crater lakes Barrine, Eacham, and Euramoo, detailing what seems like volcanic eruption. Horsfall ascribes this legend to Ngadgon-Jii tradition, but Yidinyji people claim it as a Yidinyji legend as well … .
10 Concerning early European contact Hafner and Weiner say:
J.V. Mulligan and G.E. Dalrymple were among the earliest explorers to enter parts of the Yidinyji domain. In 1873, Dalrymple headed an expedition commissioned by the Queensland government to explore the coast and rivers between Cardwell and Cooktown. Dalrymple's party travelled north up the coast, entering the Yidinyji domain and encountering large numbers of Aborigines in the Bellenden Kerr and Mulgrave River regions …. . However, it was the 1872 discovery of alluvial gold on the Palmer River by the government surveyor William Hann that opened the far north up to settlement. By 1876, the new port and township of Thornton on Trinity Bay was being established on the coast … .
Mulligan explored parts of the Barron, believing at the time that he was on the Mitchell River … . He found clear evidence of existing Aboriginal occupation. His party was blocked by the dense rainforest of the Tableland, eventually arriving at the upper reaches of the Tableland via an Aboriginal walking track:
… the native track passed on the west side of the scrub right between the range of hills and the scrub. A splendid track, the best native track I ever saw anywhere. There are roads off the main track to each of their townships, which consist of well thatched gunyahs … . We counted eleven townships since we came to the edge of the scrub, and we have only travelled four miles along it … .
By 1877, the squatter John Atherton established Emerald End Station, near the present-day Mareeba, after hearing Mulligan's report of good grazing land along the route he had taken … . Atherton and another grazier, James Robson, found tin deposits at Tinaroo Creek and the Wild River, leading to the first tin rush in the country … .
The density of the rainforest between the Tableland and the coast at first restricted settlement of the region. Supplying the goldfields from the coast proved to be expensive and difficult … . Attempts to use the Aboriginal walking tracks that cut through steep scarp and dense rainforest to the port of Thornton (later renamed Cairns), were foiled by Aboriginal resistance and the nature of the country … . Roads cut through the rainforest ensured the life of the Tablelands settlements. In 1880, the adventurer Christie Palmerston and others cut a track through the Atherton scrub to Port Douglas. It was used to cart supplies up to the Tableland and return to the coast with bagged tin and timber … . In the same year, James Robson extended a track from the Mulgrave through Boar Pocket to join up with the Herberton Road, providing a shorter route down the range for pack teams. From 1882 to 1903, Cobb and Co. operated a coach service between Port Douglas and Herberton, until Atherton was linked to the Cairns railway service … .
By 1880, timber-cutters had penetrated rainforest areas as far north as the Bloomfield River. Loggers rapidly stripped the lowland forests in the Cairns region of valuable timbers … . By 1881, with the Daintree and Johnstone River stands exhausted, the timber-cutters arrived on the Atherton Tableland, where the last untouched red cedar stands still stood … .
…
One of the last refuges available to Aborigines was the rainforest of the Atherton region. The landscape on the Tableland was considerably changed by the massive loss of forest. Miners and small cattle stations impinged from the west, restricting Yidinyji access to traditional resources. The dense rainforest remaining provided some refuge, but it no longer provided sufficient food … . The Land Act passed in 1884 and its subsequent amendments enabled small, poorly resourced selectors to take up land in the north. They followed in the tracks of the timber cutters, utilising the land they cleared. Prior's Pocket, later renamed Atherton, and land in the kairi area were surveyed and the first allotment of land sold in 1886 … . In the same year, land in the Allumbah Pocket (now Yungaburra), lake Eacham and Ball Pocket (later renamed Kulara) areas was surveyed under the Village Settlement Scheme, and settlement began in 1890 … . The township of Tolga was originally named Martin Town after the brothers who established the first sawmill there, supplying timber to the Hodgkinson goldfield … .
Birtles … notes that the large semi-permanent camp located at Cur-Cur near Prior's Pocket survived for less than four years after European contact. Relations between Aborigines and settlers were characterised by violence. With the loss of the natural resources upon which their livelihood depended, rainforest Aborigines throughout the north were forced into the position of raiding farms and occasionally spearing cattle in order not to starve … . This brought swift retaliation from the settlers:
There is an abundance of records of the violent reaction of north Queensland Europeans to Aboriginal "depredations" on stock and property. Official "protection" from Aboriginal "savagery" was provided by several detachments of Aboriginal troopers allotted the task of "dispersing" Aboriginal camps - a policy which disguised a multitude of tragedies … .
11 Dr Redmond refers to the broad regional neighbouring groups and opines that:
Yidinji People have participated in this active social network of exchanges, shared laws and custom with their regional neighbours since before sovereignty and through these exchanges their shared laws and customs have been able to be reproduced across the wider regional society.
12 Dr Redmond explains that:
While there are relatively discrete clusters of families with demonstrable connections to discrete areas of country within the Yidinji research areas this does not imply the existence of separate communities with distinct bodies of laws and customs under which their various rights to land are held. Rather, it would appear that a single society of Yidinji people and their close neighbours hold a body of law and custom distributing rights and interests amongst the local groups constituting that society. There is an important distinction to be made between the structure of claimant groups and the regional society which upholds the law and custom pertaining to the wider area.
13 Seven Tableland Yidinji claimants, Lloyd Stewart, Sally Davis, Viola Davis, Patrick Stewart, Evelyn Dawn Johnson, Leonard Anning and Catherine (Nola) Joseph have provided affidavit material attesting to the continued acknowledgment and observance of traditional laws and customs by the Tableland Yidinji people in relation to the land and water which are the subject of this determination. Matters of descent, residence, use and occupation are addressed in this evidence. The deponents describe how their knowledge of Tableland Yidinji laws and customs has been handed down to them from their parents, grandparents, great grandparents, aunts and uncles. The affidavits contain comprehensive descriptions of hunting, gathering, sharing food, bush medicine, initiations, spiritual matters, language and significant sites. There is also substantial evidence concerning the transmission of knowledge and continuing exercise of traditional laws and customs.
14 In her affidavit, Evelyn Dawn Johnson deposes to her knowledge of the traditional laws and customs of her people. She says that her mother Minnie Green was traditionally said to have been born in a hollow log on the banks of the Mazlin River in 1903 or 1906. Before she was placed with the Green family, aged 12 or 13 years old, she experienced a very traditional life style in the rainforest under the canopy of tall timbers. Her home was a traditional humpy made of a lawyer cane frame, woven grass and large leaves. Ms Johnson goes on to say that her mother told her that the rainforest sustained them with food resources, carpet snake, porcupine, possums and flying fox.
15 Sally Davis learned hunting from her parents and says that:
Mum and Dad showed us how to find jumbin bidi bidi which are like witchetty grub. The men would hunt the kangaroo, wallaby and possum and bring them back to us. The food would be prepared and we kids would watch them cook it. It would get shared out, always to the elders first.
16 Viola Davis was born on 17 September 1937. She has extensive knowledge of seven generations of her family and has learnt traditional laws and customs from her mother who, in turn, learnt "gardening and work on the land from her father, and all the bush skills and how to live from Yidinji country from her mother and grandmother". Viola went hunting and fishing and gives detailed evidence of traditional food gathering, saying that "we learned to fish for jewfish, eels and turtle, we learnt how to find turtle eggs in the banks of the rivers" and "we learnt how to watch to see what and when to harvest". She has passed on much of this information to her children.
17 Patrick Stewart was born on 19 November 1974. He gives evidence of traditional language, sites, foods, ceremonies and burial rites. He continues to teach his nieces and nephews knowledge which he derived from his father.
18 Leonard Anning was born on 27 July 1934. He has learnt and taught the Yidinji laws and customs. He gives detailed evidence of his family's life on Yidinji country, methods of hunting and gathering and many other aspects of traditional life. When growing up, he learnt a special fishing technique which involved smashing the Tolga vine into the running water in order to stun the fish. He has passed on hunting techniques to his children.
19 Catherine Joseph was born on 20 April 1935. She says that her "family frequently went to lots of places in Yidinji country, going to places like Lake Tinaroo, Lake Eacham, Lake Barrine, the Barron River and Tinaroo, Dimbulah and all over the Tablelands". She knows sites which are of traditional or ceremonial importance and traditional stories such as the importance of the Willy Wagtail, which she describes as a "messenger bird".
20 This, and other evidence demonstrate the Yidinji people's continuing connection with the claim area and the nature and content of traditional laws and customs passed down to the claim group. They comprise a normative body of law and customs handed down through succeeding generations since the time of sovereignty and, of course, long before.
21 Despite early dispossession, traditional laws and customs have survived, although in modified forms, any changes being properly seen as attributable to the need to adapt to European settlement. There is clear evidence that those who occupied and possessed the area in the 1860s and their descendants have continued to reside in and/or visit the area. I infer that the members of the claim group are the descendants of those persons who occupied the claim area at the time of first European contact. I am satisfied that the Tableland Yidinji people have an unbroken physical connection to the claim area, dating back to a time prior to 1788.