Kaurareg
598 There are two connection reports which I have found useful and informative: Mr Southon's connection report from 1997 for some of the Kaurareg home islands and Mr Wood's 2015 report about Kaurareg interests in Warral and Ului, produced shortly after the mediation for the purposes of the shared ownership claim.
599 Mr Southon's report for the Kaurareg claim over Muralag, Dumaralag, Yata, Mipalag, Zuna and Ngurapai was prepared in January 1997. The report was prepared less than a year after the Kaurareg claims were filed. Mr Southon's report was prepared approximately 11 years before Kaurareg made a native title claim over Warral and Ului (in 2008).
600 Understandably, Mr Southon's report commences, in its summary and then in its introductory part, with significant emphasis on the forced displacement of the Kaurareg People since colonisation, a feature of the lives of many generations of Kaurareg People not endured to the same extent by other groups in the Torres Strait region:
The original native title holders to Muralag, Ngurupai and Zuna were moved off Muralag in the 1880's and 1890's, as that island became the focus of the European pearl-shelling industry in the Torres Strait. They were moved to Kirriri, an island which was part of Kaurareg country.
In 1922, the Kaurareg were removed from Kiriri to Moa, an island outside Kaurareg country, 40 kilometres to the north.
The Kaurareg lived on Moa for the next 25 years. Some of them began to move back to Kaurareg country - to Ngurupai - in 1947.
…
The Kaurareg people bitterly resisted their removal from their country to that of their neighbours on Moa in 1922; this can be seen in a contemporary press report (The Queenslander, March 11, 1922) as well as official communications relating to the event.
Throughout their 25 year sojourn on Moa, the Kaurareg maintained a fervent desire to return to their country. This was despite Government regulations which prevented them from making visits to the Prince of Wales group of islands and which attempted to assimilate them to the Moa population by forbidding them to speak the Kaurareg language. A Government school teacher on Moa recorded in 1936 that the Kaurareg people's desire to return to Hammond Island was so strong that it was "their idea of the Millennium". During this period the Kaurareg kept alive the traditions, spiritual links and subsistence knowledge of their lands and surrounding seas.
In 1947 the Kaurareg defied Government authorities and went back to Horn Island. They lived on the island without any formal tenure recognized by the Government. They established a thriving community on the Island, in the face of Government opposition.
601 Mr Southon has a section in his report entitled "Extent of territory", where he records the "general consensus" amongst early observers that Kaurareg occupied the group of islands off the tip of Cape York. He does not in this section refer to any islands further north into the Torres Strait. He expresses the view that Kaurareg moved seasonally between their home islands, following the availability of food sources, camping for some of the wetter months in one place. The source for much of Mr Southon's opinions is the account given by Barbara Thompson. Further in his report, Mr Southon turns to land tenure, noting the Kaurareg "were not cultivators" (my emphasis). Mr Southon then explains that canoes were of great importance to Kaurareg, and that they obtained their hulls from islanders to the north, who in turn obtained them from Papua. He describes Kaurareg as part of an "extensive trade network":
The Kaurareg were not cultivators. Though Barbara Thompson does record that some Kaurareg had yam gardens, Moore concludes from her evidence that "there was no general horticulture" (Moore 1979:279). Neither were the Kaurareg land hunters; Moore notes that none of the "authorities mention any land hunting of large game by the Kaurareg and it seems likely that the larger marsupials were not present in the Prince of Wales group" (1979:276). The Kaurareg, like other Islanders, lived predominantly on the foreshores. It was on the foreshores that they received guests from other islands. Land ownership along the foreshores was probably much more clearly defined, and much more based on ownership of economic resources, than was ownership of the interior.
A corollary of the absence of horticulture and hunting amongst the Kaurareg is the importance of trade in their subsistence pattern. Canoes were of great importance to the Kaurareg, and their ownership was probably as important as the ownership of land (Moore states that information on canoe inheritance is lacking for the Kaurareg (1979:262) but notes that Haddon recorded that on Maubiag canoes were inherited by all sons, the eldest son being the captain of the canoe).
Kaurareg obtained their canoe hulls from other Islanders to the north, who in turn obtained them from Papua. The Kaurareg were part of an extensive trade network. Indeed they were strategically positioned, since their islands lay on the direct route of foreign shipping (the Prince of Wales channel and Endeavour Strait); from the numerous shipwrecks that occurred they were able to obtain iron (nails from the hulls) which became an important item in the trade network between Australia and Papua.
602 Mr Southon goes on to describe the two "quite different models" of land ownership from the early sources:
In these accounts of Kaurareg land tenure there are two quite different models of ownership: Haddon emphasizes clan-based ownership (though he does make a reference to individual ownership [vol V:284 fn]), while Barbara Thompson's account emphasizes individual ownership. It is not clear how these two different models are reconcilable, or which of the two is more accurate. However, it should be noted that Haddon was a trained anthropologist while Barbara Thompson was not.
603 In the next section entitled "relationships with neighbouring tribes" and consistently with the other connection reports to which I have referred, Mr Southon describes the "intermittently hostile" relationships Kaurareg had with their neighbours, except the Kulkulgal of Naghir (to the north east), and he recites a history of those hostilities, and attempts at peace. I reproduce accounts of that history elsewhere in these reasons. However, Mr Southon draws a slightly different conclusion:
The Kaurareg appealed to the Europeans in the newly established settlement at Somerset to assist them in brokering a peace with their enemies to the north, "the much dreaded Bardoolegas" (Badulaig). On 6th October 1867, a large party, consisting of the missionaries Kennett, Jagg, Ralph, two visiting naturalists, and about forty or fifty Gudang, Kaurareg, Kulkalaig, and Moa-It, left Muralag bound for Badu (Mulgrave Island). They stopped at Waibene (Thursday Island) on the evening of the 6th where they heard news that a large party of Badulaig had left Badu on its way to Keriri. The next day the Muralag party left Waibene and crossed over to Keriri where, amid much apprehension on both sides, the two parties met. On the morning of 7th October "peace was concluded in a formal manner" (Kennett op. cit. :248) between the two parties, the Kaurareg and the Badulaig.
This incident clearly shows that the Kaurareg were regarded as the rightful owners of the Prince of Wales group of islands, not only by the Badulaig with whom they made the peace agreement, but also by the tribes that accompanied them and witnessed the peace agreement: the Gudang (from the mainland), Kulkalaig (from Naghir or Mt. Ernest Island), and Moa-It (from Moa).
604 For the purposes of the present proceeding, what is notable is that again there is no mention by Mr Southon, or by the sources he relies upon, of any Kaurareg country further to the north than this group of home islands. Nor is this account framed as if, were the Kaurareg to sail north up to Badu, and on their way past Warral and Ului, they would still be travelling in their own country. If anything, this account suggests that the Badulgal came down, out of their country, and into Kaurareg country.
605 Mr Southon then charts the series of forced removals and relocations to which the Kaurareg were subjected by Europeans, including their removal to Mua, and the enduring desire of the Kaurareg People to return to their own country, which persisted against all the oppression they underwent. Mr Southon relates the particularly famous incident in 1950 where Kaurareg elders who had returned from Mua to Ngurapai against the government's will and were again being told they could not stay there all greeted the then Departmental officer in charge (one Killoran) by standing in silence on one leg, as Mr Southon describes it:
in imitation of the Kaurareg warrior and culture hero Waubin … a strong and eloquent statement of their spiritual connection to the land.
606 This is a particularly vivid example of the prominence of the Waubin story in the traditional law and custom of Kaurareg People, a matter I return to below.
607 Further on in his report under the heading "Sea tenure", and then under the heading "Extent of territory", Mr Southon gives some descriptions of Kaurareg territory in the sea and on land that has relevance to the present proceeding. It is a lengthy extract but should be reproduced in full:
(iv) Sea tenure
In addition to ownership of land, Kaurareg also have well developed notions of ownership of the sea. Indeed, ownership of land is predicated upon ownership of the sea, since the Kaurareg regard all those islands enclosed by Waubinin Malu or the Sea of Waubin, as belonging to them. Kaurareg ownership of the marine environment can only be understood in the context of their beliefs about ancestral spirits and the supernatural order. Central to Kaurareg marine tenure is the mythological figure Waubin, whose exploits provide the charter for Kaurareg tenure of both land and sea. Waubin was a warrior and a giant who came from Central Australia to the island of Muralag which was already inhabited by a number of other mythological figures, also warriors. Waubin either killed these individuals or chased them out to sea, acquiring their wives in the process. Waubin was turned into stone and his metamorphosed body lies off the northeast end of Kirriri as a rock named Waubin (Hammond Rock). There, as an outpost of Kirriri, Waubin protects the islands to the south from intruders. He sends a strong current through the Prince of Wales channel which is said to discourage outsiders from venturing further south into the Kaurareg area. This deep channel, which runs along the north side of Kirriri, is known as Waubinin Malu, or 'The Sea of Waubin'. Billy Wasaga explained the role of Waubin in the following way:
"Ship not supposed to come in through that water, this channel, that's why they call him, this channel, Waubinin Malu, that's mean 'Sea of Waubin', Waubin was out there, that's why he went out over to that Hammond Island other side and walk out to the reef, why was he doing that? Because he don't want nobody to come to the shore of that island, to have Muralag island, area.".
Though Waubinin Malu refers specifically to this channel on the north side of Kirriri, Kaurareg people also use the term in a more general sense to refer to the whole Kaurareg sea territory. During his battle with the warriors on Muralag, Waubin encountered Badanae - a warrior of very small stature - who darted between Waubin's legs and sliced off his right leg with the bamboo knife upi (Sharp 1992:105). The blood from Waubin's leg was carried by the currents throughout the waters surrounding the Prince of Wales group of islands. Wherever the blood from Waubin's leg was taken became Waubin's territory; thus it is that the whole sea enclosing the Kaurareg islands is called Waubinin Malu.
Kaurareg do not have a concept of a clearly-defined boundary around Waubinin Malu, but there are certain points that act as markers, defining the limits of the Sea of Waubin. In the north the Kaurareg sea extend[s] as far as the channel between Warrar (Hawkesbury Island) and Dollar Reef (Dollar reef belonged to the people of Moa).
On the south side of Hawkesbury Island is a rock which represents Pitulai, a warrior who fled Muralag Island, driven by the ever-jealous Waubin. On the west side of the island lies another rock which represents Ibibin, another warrior who fled Muralag for the same reason. These two mythological figures are said to mark the northern extent of the Kaurareg sea territory:
He (Waubin) sent them (Pitulai and Ibibin) out to the island, they in that place, that's identification for Muralag ... that Pitulai and Ibibin. (Billy Wasaga, Kaurareg tribal elder).
In the west, Kaurareg sea extends as far as Booby Island where there is a rock that represents Ngiangu, another warrior who was chased off Muralag by Waubin. Billy Wasaga described the role of Ngiangu as a boundary marker:
That what he stand there for, stop there, that's Kaurareg district, let the other people know that as a far as boundary, you know, for this way boundary. (Billy Wasaga, Kaurareg tribal elder).
The southern boundary of Waubinin Malu is less clear, perhaps reflecting the fact that in pre-contact times the Kaurareg had much better relations with their southern neighbours than with the peoples to the north (Singe 1979:164). For example, the turtle hunting grounds on the islands south of Muralag, though they belonged to the Kaurareg, were shared with the Gudang people of the mainland.
Though Kaurareg conceive of their boundary as a number of significant sites rather than a line, Kaurareg say that their ancestors always knew whether or not they were in their own sea territory or that of a neighbour. For example, Billy Wasaga stated that in pre-contact times Kaurareg would not fish or hunt north of Warrar (Hawkesbury Island), and would not tolerate anyone from the north who fished or hunted south of Warrar.
Kaurareg people state that the waters within the Kaurareg sea territory were regarded as a common resource to be shared by all Kaurareg, but the institution of gangarr shows that on an informal level there was (and is) some kind of individual tenure of the sea. A gangarr is a fishing spot where a particular individual regularly fishes. Some gangarr are a closely guarded secret and are handed down to a man by his father, together with a spell or magic formula that ensures good fishing. A further example of marine tenure below the level of Waubinin Malu was the ownership of stone fish-traps. There were at least two stone fish-traps in Kaurareg waters: one in the Bay of Siziri on the north side of Kirriri and another at Tani butu (butu means 'beach') on the south side of Kirriri.
(Emphasis added.)
608 This account is also not consistent with the applicant's primary case in this proceeding about the source of Kaurareg native title in uninhabited islands and the sea.
609 A little further on in his report, under the heading "Spiritual connections with totems and culture heroes", Mr Southon discusses the Waubin narrative again. He states:
Kaurareg people find their strongest spiritual connection with the culture hero Waubin. As senior elder Billy Wasaga stated to the author, "We are Waubins". This connection to Waubin was expressed most graphically in the 1965 protest against the proposed removal from Horn Island, when the Manager of the Department of Native Affairs, P. J. Killoran and other DNA representatives were met by Kaurareg men standing silently on one leg in imitation of Waubin, who lost his right leg in battle with the mythological figure Badanae
…
As with other warriors he encountered on Muralag, Waubin chased Kiwain off the island. In his flight from Waubin, Kiwain turned himself into a Shovel-nose Shark (Kaigas) and swam from Long Beach to the northeast Point, where he was metamorphosed into the oblong rock. Billy Wasaga has related the story of Kiwain:
"So he went out that way, long way, Waubin don't see him no more. AfterWaubin come out from this place called Raba Nguki, he walk around come out to Bada Kut, go all along the beach waiting for them kerrnge. This place, Long Beach, nobody been there then. Other one (Kiwain) went down swimming in the water, turned into Shovelnose Shark, Kaigas, then went swimming and stay under the water, where he (Waubin) don't see them. Waubin been chasing them because of his woman, he don't want no one to take his woman away from him.
MS: So who became the Shovel nose Shark?
BW: Kiwain, then he swim along, hide himself, go right up to this Point, Bluefish Point."
…
Rabau Nguki; a water-hole in the bills behind Yirrki, the only permanent water source on Muralag. Rabau Nguki is the most important sacred site on Muralag; it was the home of the Kaurareg culture hero Waubin. From Rabau Nguki, Waubin set out for Yirrki, Gaibaiyat, Muiarpui, Dak, Yata, and Aiginisan in search of warriors to kill. After defeating Kiwain, Waubin took Kiwain's wife to Rabau Nguki. The following day, Waubin travelled eastwards and fought with the warrior Badanae, who cut off Waubin's right leg at the knee. Waubin returned to Rabau Nguki accompanied by his wives, who cared for him there.
…
Haddon records that one of the augud or totems of the Kaurareg was the culture hero Kwoiam who passed through Muralag on his way to Maubiag, which was the focus of his activities (Haddon vol V:80).
Another Kaurareg culture hero is Waubin. Waubin differs from Kwoiam in that he is a uniquely Kaurareg figure, emblematic of Kaurareg identity, whereas Kwoiam is is significant throughout the Torres Strait. Waubin is said to have been the first Kaurareg (Sharp 1992:105). His exploits provide the charter for Kaurareg ownership of land and sea and he is the basis of Kaurareg identity. As Billy Wasaga stated: "We are Waubins (Waubin nin gal)". In 1950, when the Manager of the Department of Native Affairs-P. J. Killoran - arrived on Ngurupai to inform the Kaurareg of their eviction from the island, he was met by Kaurareg elders standing in silence on one leg, in imitation of the culture hero Waubin - a strong statement of their spiritual connection to the land
Unlike Kwoiam, who left no traces of himself in the landscape, Waubin and the people associated with him were metamorphosed into various physical features. The site Raba Nguki, on Muralag - which is the main mythological site of the Kaurareg people - is the place where Waubin's wives bathed his wound after his right leg had been cut off by the warrior Badanae. Hammond Rock, off the northeast end of Kirriri represents the body of Waubin, after he fled into the sea and drowned. The wild fig trees that used to grow on top of Hammond Rock (they were cut down to build the light house) were said to be Waubin's hair. The group of rocks situated off the north coast of Kirriri are said to be the metamorphosed bodies of Waubin's wives. On the top of a hill at the eastern end of Kirriri is a hole in the ground that represents one of the women accompanying Waubin. Waubin noticed that this young woman was still a virgin and so had sexual intercourse with her at this site. Ron Wasaga said that a vein of quartz running down the hill into the sea represents Waubin's semen. The weapon that Waubin used in his battles with the various warriors he encountered in the Prince of Wales group of islands was the distinctive Baidamal Baba, a weapon lined with shark teeth. Baidamal Baba takes its name from Baidam, or shark, which was the chief totem or augud of Waubin. Waubin threw this weapon into the sea near Goba Ngaur, a rocky headland of Kirriri, where it became a reef, "its edges sharp and jagged like the teeth of Baidam's jawbones" (Lawrie 1970:8). Baidamal Baba is today regarded by Kaurareg as an icon of their identity. Billy Wasaga states that the deep channel flowing along the north side of Kirriri is 'Waubin's Sea' or Waubinin Malu.
Spiritual connection with Waubin encompasses all Kaurareg and is not restricted to particular clans; as Ron Wasaga said, Waubin is "just one story for everyone". Ron added that each Kaurareg person has a 'personal place' and a 'common place'. Someone's personal place is the place where they live or where they were born; their common place refers to all the Kaurareg islands, to which they are connected by virtue of their spiritual connection to Waubin.
(Emphasis added.)
610 What this material shows very clearly is that in this connection report, Mr Southon is characterising Waubin as a mythical figure, not an ancestor. It is clear that is how his informants explained Waubin to him, and his own opinions reflect that characterisation, including putting the main account of Waubin under "mythology". Although it is also clear from the earlier parts of his report that Mr Southon's informants told him, and he accepted, that the Waubin myth was a method by which, traditionally, Kaurareg explained the limits of their sea country. So in that sense I accept and find the Waubin myth is a traditional explanation of Kaurareg rights and interests in sea country radiating away from the Kaurareg home islands, and the uninhabited islands found in that sea country. I explain this in more detail below. For present purposes, the important matter demonstrated by Mr Southon's comprehensive and careful report is the characterisation of Waubin as a mythological figure.
611 Mr Southon then explains the place of Pithalai in Kaurareg mythology:
Other culture heroes in Kaurareg mythology are Badanae, Ngiamu, Pitulai, lbibin, and Putukain. Ngiamu was defeated by Putukain in a battle on the west coast of Muralag. Putukain defeated Ngiamu in a battle and then told Ngiamu to keep walking out to sea until he was only visible as a dot on the horizon, whereupon Putukain told him to stop. Ngiamu stands there today as Booby Island, guarding Kaurareg territory from the west. Pitulai and lbibin were defeated by Waubin, also on Muralag. Waubin sent Pitulai and lbibin out to Warrar (Hawkesbury Island) to guard Kaurareg territory from the north.
(Emphasis added.)
612 Finally, at the end of the report Mr Southon sets out a list of other islands that he describes as islands that in "pre-contact times" were "owned" by Kaurareg. I infer this is a list gathered from Mr Southon's then informants. The list of uninhabited islands is as follows:
() Meggi Muri (Mt. Adolphus Island)
() Kei Muri (Little Adolphus Island)
() Ului (West Island)
() Warrar (Hawkesbury Island)
() Mawai (Wednesday Island)
() Tuesday Islets Kudulug
() Zuna
() Tarilag
Ngiamu (Booby Island)
Dumarilag
Kei Yelubbi (Woody Wallis Island)
Meggi Yelubbi (Red Wallis Islet)
Nelgi (Twin Island)
613 Dadalai is not in this list, but appears in the Kaurareg native title claims, as I explain below. Ului and Warral are by a considerable distance the most northern of the islands in this list. Aside from Warral and Ului, only some of these islands are at the time of these reasons the subject of native title determinations.
614 I turn now to Mr Wood's 2015 report. It was prepared after the 2015 mediation and for the purpose of advancing the shared ownership claim, while taking into account the three relevant existing native title claims - the Part B Sea Claim and the overlapping Badulgal and Kaurareg applications over Warral and Ului. Mr Wood describes the report as setting out the:
nature and bases of the Kaurareg claim on customary rights and interest[s] in the islands of Warral and Ului and a number of islets, reefs, and surrounding waters including the three large reefs known as Zuguin Maza, Dadatiam Maza, and Giaia Maza.
615 These are the three reefs to the south of Warral, between Warral and the Kaurareg home islands. Mr Wood describes the presenting issues in the following way:
The background to my 2001 and 2003 reports was the Kaurareg people's decision not to participate in the Torres Strait Regional Seas Claim in favour of pursuing a separate sea claim of their own, leading to a need to determine a southern boundary for the Torres Strait claim. Freely shared access to and use of resources on the Waral islands and adjacent seas by members of the three groups - in something of the character of a commons - were the long standing facts as far as I could see, and was not really contested. However, the three groups were in variable measures of dispute as to whether one of them held root ownership of the area and the others contingent use rights, or whether root ownership was shared. I say variable because there was much less tension between the Kaurareg and Mualgal groups and, I gather from members of the Mualgal, between themselves and the Badhulaig over this question than there was between the Kaurareg and Badhulaig.
616 Then at [9], he repeats some of these opinions:
The Kaurareg have, since the first work I did in relation to their land claim in 1999, asserted root ownership of the Waral islands and waters. However, they also asserted that the Moa community had unfettered use rights, and depending on the context of discussion, that the Badu community had something that ranged between that and permissive use of the area. Their basis for these positions was the history of inter-marriage between the three communities, which under the regional law and customs gives rise to exchange of use rights in each other's marine estates (inclusive of reefs and islets enclosed by them), and which is a right in the sense that such exchange cannot really be denied. However, there are much fewer intermarriage linkages between the Kaurareg and Badhulaig. Nonetheless, the difference between permissive access and exchange of standing license to use what is effectually a common area seems in my observation a rather thin one, with people varying their interpretation depending on the state of relations or tensions between them. Further underlying this is a society-wide title to the regional seas and a regional ethos that places a high moral value on co-operative tolerance of use and sharing of sea space and resources. The matter really only becomes heated if the issue of root title is raised, conceived of by the Kaurareg - and I think the model is held at least as an abstract one by all three parties - as distinct from these usufruct rights generated by the customary norms of exchange. The Kaurareg together with the two other parties have recently agreed to settle the native title as a joint title.
617 These passages and the opinions they contain are important. First, in respect of these islands (and the reefs) Mr Wood distinguishes between "access" and "root ownership". That distinction is consistent with the lay evidence in this proceeding, and in Akiba. It is consistent with Finn J's findings in Akiba, which I am applying in this proceeding. Secondly, Mr Wood identifies the key "tension" as being between Badulgal and Kaurareg, which is consistent with the alignment between Mualgal and Kaurareg disclosed by much of the evidence, and also consistent with what the evidence says about Badulgal and the people of Mabuiag being close to each other, from pre-colonisation times.
618 He then goes on to explain his understanding, I assume as at 2015:
This led to dispute between the latter two as to the basis of shared access which I believe would otherwise not have arisen: the Kaurareg asserted that Badhulaig use was permissive in nature whereas Mualgal shared joint access rights with Kaurareg due to more substantive intermarriage and kinship ties. As I was given to understand from abbreviated accounts from third parties, the Badhulaig position inverted this to assert that root ownership lay with them. By contrast, most Mualgal favored settling the matter as a three-way joint title.
619 Again, this is an important passage. It demonstrates that the application by the Badulgal respondents in 2020 was no new idea, and the position they advanced was a position well-known in 2015: namely, that the islands belonged to Badulgal only. That position was also apparent from the Akiba evidence.
620 In this report, Mr Wood frames the source of Kaurareg rights and interests in the following way (at [10]), and after these passages he expresses his agreement (at [11]) with these matters as the correct basis for Kaurareg rights and interests in the area under consideration:
The bases in regional law and custom on which the Kaurareg base their claims on area B are a combination of ancestral occupation and use of the area, and legitimation of root title by reference to more ancient mythologized occupation. In summary their position is:
(a) The area was part of the Kaurareg pre-colonial marine and outer islet estate, occupied in the sense that it was annually exploited by them in the course of their hunting-gathering seasonal cycle, especially for the native yam and turtle egg resource of the islands and as a base for fishing and marine hunting, while the three reefs Zuguin Maza, Dhadhatiam Maza, and Giaia Maza were their major source of reef resources. Waral and Mukanab were also used as a stopover, safe anchorage, and water source for Kaurareg canoe traffic between Hammond Island and Moa's south coast;
(b) Living and recently deceased Kaurareg have continued to act on this presumption, especially in the period when they were exiled to Moa. In that period the Kaurareg Wees Nawia and his wife had a hut and garden on Waral and continued to use it to a lesser extent after the war, while other Kaurareg camped and gathered yams and turtle eggs on the islands and hunted dugong and turtle both and over the three reefs and all of area B. More recently Waral has been used as a lee haven for dinghy travel to Kubin, and as bases for gathering crayfish for the commercial market;
(c) Today's senior Kaurareg were explicitly taught by their parental and grandparental generations that these islands and reefs are Kaurareg, and were taken to Waral as children and teenagers and shown the freshwater and food resources and mythological sites there; and
(d) The Kaurareg hold that their mythology especially legitimizes all this in that it establishes a foundational ancestral occupation in the form of the mythological figure Adhi Pithulai at Waral. According to the Kaurareg founding myth of Waubin, the latter - or in some accounts another mythological actor - chased Pithulai from Murulag Island via Hammond Island out into the sea, where he was transformed into a large boulder on Waral and, in the accounts of a number of Kaurareg, more generally into the island as a whole. They were told that there is also a related mythological site at Ului but that details of the narrative are now lost. Other mythological references relating Mukanab and Nelgi to the east.
(Emphasis added.)
621 I make the following findings about these passages. First, the "ancestral occupation" advanced is a kind of occupation specific to uninhabited islands. It refers to regular seasonal exploitation of the resources of the islands. Mr Wood does not highlight any activities beyond seasonal and occasional use dating from pre-colonial times, or even early post-colonial times. The prominence of use while Kaurareg were living on Mua is consistent with other evidence; namely, a post-colonial activity. It is during this period that Mr Wood highlights one garden, said to be established by Wees Nawia. Next, Mr Wood is clear that Waubin is a mythological figure, but describes the Kaurareg approach to the myth as "legitimiz[ing]" what they have been told by their elders. Unlike Mr Southon, he does not describe the Waubin myth as the source of rights and interests.
622 At [12], Mr Wood refers to two other matters, one of which needs some consideration in light of the evidence in this proceeding:
The Waral group and the three reefs 'belong to' and are 'part of' Hammond Island because they are in clear view from Hammond and others of the Kaurareg home islands (the Prince of Wales group). The rationale is along the lines that small pieces of land, rock, reef, or sandbar in visible proximity of a home island are outliers of it, in some ways analogous to the continental shelf principle in Australian and international conception. Further broad principles are 'what we can see from our home island is part of it', and the limits our proprietary domain is the horizon. As discussed below, in many such cases there is often also mythology that further identifies outlying features with the soil or other substance of the home island[.]
623 This "horizon" approach as a basis for native title was expressly considered by Finn J in Akiba. His Honour rejected the State's argument in Akiba that the horizon represented some kind of boundary for native title in the sea: at [643]. He did find that what could be seen on the horizon from home islands was likely to be, in terms of sea country, a kind of "policing zone" for the community on the home island, but this issue runs into and needs to be considered with his Honour's findings about different types of sharing between island communities: see at [642].
624 What can be said in terms of the evidence in this case, and also in terms of the consent determinations made, is that visibility on the horizon has not been, and could not be, used as a probative basis to support native title in the Western Torres Strait region. It is not compatible with many of the consent determinations in the area.
625 Mr Wood then goes on to describe the northernmost line of what Kaurareg claim, as at 2015:
The approximate northern boundary the Kaurareg nominated to Southon (1997, 1998) runs on an east-west axis from the strait between Gainaulai Island and Dadalai Islands on the west, and on eastwards to pass midway between Murbayl (Murabar Islet) and Dollar (or Long) Reef - that is, approximately along the 57th grid line on the 1:100,00 topographical sheet. I have many times since 1999 heard this same line stated. It allocates primary title as follows:
• Ibibin (White Rock), Ului, Dhadhalai, Waral, Murabail, Mukanab and Nelgi (Twin) Islands to Kaurareg;
• Gainaulai Islet, Tuft Rock, and all the islets north of them to Badu title in some cases and Mualgal title in others;
• Dollar Reef and small islets close to Moa to Mualgal title; and
• Since my own involvement in 1999 the Kaurareg have disavowed any interest in Gainaulai and all other islets north of it and in Dollar Reef as firmly as they have asserted primary title in the Waral-Ului area.
(Emphasis added.)
626 Obviously this assertion by Kaurareg, through Mr Wood and reportedly still being made in 2015, is incompatible with previous determinations. It is not consistent with the list attached to Mr Southon's report. It post-dates the second shared islands determination where native title in Dadalai was found to be held by Badulgal and Mualgal. It post-dates the second Mualgal determination in which native title in Murbayl and Muknab was recognised as held only by Mualgal. It will be recalled that Dr Hitchcock in his Mualgal islands report stated there was no opposition to this outcome, and there was recognition that the islands belonged to Mualgal. Why the Kaurareg People's claims are still being made on this basis in 2015, supported by Mr Wood, well after these other consent determinations, is not explained in the evidence.
627 From [15], although Mr Wood expresses some doubt about how "crisp" the sea boundaries were in pre-colonisation times, he appears broadly to accept and support the Kaurareg claims to the uninhabited islands. In my respectful opinion, just as in the evidence in this proceeding, the basis in the source material is thin, and very much post-colonisation, with other rational explanations for Kaurareg presence on and use of Warral during the post-colonial period, and no probative evidence about Kaurareg presence on or use of Ului, even in these post-colonial times.
628 Without reproducing it, the arguments made by Mr Wood at [16], which were similar to those made by the applicant in the present proceeding about Kaurareg mobility, in outrigger canoes in pre-colonisation times, were of little persuasive value. That is because none of this recorded mobility expressly involved Warral and Ului. All involved travel to Mua (at best, and this appears to be no more than one or two isolated accounts by Barbara Thompson) and Cape York - in other words, well to the east of Warral, let alone Ului. This is consistent with other evidence I have extracted earlier; the Kaurareg routes north trended east, not west.
629 At [17], Mr Wood describes the resource rich nature of the two islands, and then attempts to marry that up with other evidence about Kaurareg moving seasonally, depending on resources. The latter proposition features strongly in Mr Southon's 1997 report, but it is confined to the Kaurareg home islands. It is, with respect, no more than speculation that Kaurareg also used the resources of Warral, let alone Ului, islands which were a considerable distance away, in circumstances where their pre-colonisation use pattern around their numerous home islands, and south to Cape York, is well established in early material. Mr Wood then recounts much of the same kind of evidence that the Court has heard in this proceeding, centring on a hut and garden made on Warral by Wees Nawia, but also increased visits from Kaurareg People while on Mua. Mr Wood states:
These recollections reflect the fact that after the Kaurareg were exiled to Poid in 1922 engagement with the Waral areas intensified, as it was one island they especially considered to be Kaurareg which could be readily accessed from Poid and without opposition from officialdom.
630 I make two findings about this opinion. First, it is limited to Warral. Second, Mr Wood does not appear to consider the alternative explanation, found in much of the lay evidence, and again especially in the Akiba lay evidence, that Mualgal felt they needed to be hospitable to Kaurareg when they were forced to live on Mua, and shared freely the resources of reefs and uninhabited islands that they considered owned by Mualgal. That was gud pasin. This explanation also explains a feature of Mr Wood's informants' knowledge upon which he relies in his 2015 report - namely, the familiarity of his informants with the land and sea resources on and around Warral. Again, the emphasis is on Warral, and Ului is hardly mentioned.
631 Mr Wood then turns to the Waubin narrative, from [31]. He introduces this topic in the following way:
The Kaurareg claim on the root rights and interests in the Waral islands appeals to their founding reference myth of a heroic adhi named Waubin. Although the myth is specifically Kaurareg and many details are retained among themselves and not readily disclosed to others, some knowledge of its core features are well known to the Mualgal community and have a scattered distribution within the Thursday Island community and the Cape York community of Injinoo.
632 This observation is also consistent with the evidence in this case - Badulgal knew, or would say, very little about this myth. It was the same in the Akiba evidence. Some Mualgal witnesses in this proceeding and Akiba were more forthcoming.
633 Mr Wood then gives an account of the myth that is not necessary to reproduce, given I have extracted the one from Mr Southon's report above. The applicant in this proceeding submitted, and I generally agree, that differences in the telling and re-telling of the myth are not matters about which this Court should make any findings for the purpose of definitively establishing a "correct" version of the narrative. Of course, it is necessary to make some findings about the differences in the lay evidence in this proceeding about where Pithalai sits, but the purpose of those findings is not for the Court to pronounce on a 'correct' version in any general sense, but rather to assess the reliability of the various versions in the evidence (especially the lay evidence), and what the fact of the differences might say, if anything, about native title in Warral. However, I note that in the version given by Mr Wood, he adheres to the opinion he expressed in this proceeding - namely, that on the accounts by his informants:
Adhi Pithulai similarly flees into the sea to be transformed into Waral Island, most focally as a large rock standing on its south beach.
(Emphasis added.)
634 It can be observed that in this version, the whole island of Warral is said to be Pithalai, with the rock on the beach at the southern end being no more than representative of him. That is not what the version in Mr Southon's report recounts, although it is how some witnesses in this proceeding described the outcome of the Pithalai narrative. In other versions, it is the rock on the beach, or in the water, and only the rock, that is said to be Pithalai, as a boundary marker.
635 In this report, Mr Wood linked the Waubin myth to ancestral occupation more expressly than he did in an earlier report he had prepared, in 2003. Extracts from that 2003 report were quoted extensively in Dr Murphy's 2015 Warral and Ului report. Mr Wood was cross-examined by the State about these opinions. In the 2003 report he said:
The Kaurareg believe that the actions of totemic deities in the regional creation mythology inscribe group titles in all land and sea space in the Straits and Northern Peninsula region. Kaurareg refer to these mythological actors as 'adhi', or by the equivalent term in the regional Creole, stori. These are terms common to the region, and generically denote both myths and the shoreline boulders and islets into which mythic actors are held to have been transformed.
…
Although a group's activity history on an outer island is also important as a basis of claim for the Kaurareg, they rights founded on affiliation to an adhi site as much deeper.
…
Since the Kaurareg claim on the customary title to the Waral group relies on the founding reference myth of Waubin, an outline of that myth is set out here.
(Emphasis added.)
636 I was not persuaded by Mr Wood's explanation in this proceeding for the way his opinions are differently expressed.
637 In his 2015 report, Mr Wood then explains a theme which emerges in other evidence in this proceeding - namely, that Kaurareg People have asserted that their title is exclusive, when it derives from the Waubin myth. Mr Wood explains this perspective with, in my respectful opinion, considerable insight:
In my experience Kaurareg share the view of other people in the Torres Strait region that activity history on an outer islet - in the form of hunting, fishing, and gardening - is one form of validation for claim rights on it. However, they hold that this cannot take precedence over adhi sites, which they view as establishing the underlying title or something akin to the English notion of a 'better' title. The proposition that adhi beings were there first is central to how they construct notions like 'occupation' and 'lawful occupant': in the words used of Waral by Kaurareg speakers in meetings in 2001 at Moa and Badu, 'i gad Kaurareg man stanap there', that is, the Kaurareg adhi Pithulai is standing on Waral in the form of a boulder and is thus in primordial occupation and possession.
638 And later at [56]:
Another Mualgal man, albeit whose wife was Kaurareg and who spent much of his life with them, the late Wap Charlie, told me that the truth or otherwise of what one or other person may assert is hard to assess whereas adhi, metamorphosed in stone, are visibly there in person:
[suppose] This fella bi tell me, [well] he might be liar. 'Nother fella might be true …but this rock, i Pithulai stanap. [his emphasis]
[Translation: Some might tell me something, but he may not be telling the truth, another might say something that is the truth, we can't be sure from their words alone, but this stone the adhi standing, is a visible verifiable fact.]
The act of transforming oneself into stone is seemingly also considered an authoritative statement made by the adhi himself.
This logic leads the Kaurareg to view others' use of land or waters identified with their adhi as trespass, and to reject claims that hunting, gardening, or any such surface activity can by itself give rise to entitlements that could reverse or take precedence over the presence of an adhi, or that occupation of any place by a group by force or by opportunity during absence of the legitimate group - as during the Kaurareg exile on Moa in the 1920s to 1940s - can undo what they regard as the immutable 'facts' embedded in the place itself.
It should be added that, although in their view the root title to the Waral islands is exclusive to themselves, it does not necessarily entail exclusion of others in practice from visiting and fishing at the islands. What is exclusive in their construct is the underlying group identity of the islands and the right to determine disposition of them, including surface access and use by non-Kaurareg. They took the same view in their land claim on the central islands.
(Original emphasis, annotations to text in original.)
639 Mr Wood's linking of this strongly held view to the repeated exile of the Kaurareg People from their home islands is an opinion I accept: see [70]-[71] of this report.
640 Mr Wood also makes some insightful observations at [75] in this report about the emphasis of non-Kaurareg on gardens:
Also in play is cultivator versus non-cultivator values in an unspoken but often gestured hierarchy of occupation and use incidents: non-Kaurareg more often treat the matter of who made a garden at a place as a weightier index than hunting and gathering use, noticeably in my observation even in the Mualgal community densely kin-related to the Kaurareg. Although today's Kaurareg ancestors indignantly told the Europeans on the Rattlesnake in 1848 that they were cultivators and Barbara Thompson confirmed it, today's Kaurareg often assert pride in the primary place of wild foods in their indigenous economy and skills. As shown in section 4 above, the Kaurareg do appeal to use and occupation history - their own - in area B. In my observation they rely even more on it in areas where there are few or no defining mythological reference points or they are lost from memory, such as waters and islets south and east of their home islands. Gardens are a more visible, tangible mnemonic than use of wild resources, but not more meaningful for everyone in the region. Even on Mer where horticulture was prominent some people were mostly marine hunters and foragers and their prestige was invested in it.
(Footnotes omitted.)
641 The earlier connection reports about Kaurareg native title provide a less than consistent picture of how their native title in the sea and in the uninhabited islands in the sea is said to arise. They reveal expansive claims, even in the face of other consent determinations. The changes in Mr Wood's reports as they approach the time of the 2015 mediation, and after it, are consistent with an increased focus on supporting the shared ownership claim. Of all the material, and aside from those parts of Mr Wood's 2015 report dealing with the links between the exile of the Kaurareg People and how they assert their native title (which I agree have some force), I prefer to be guided by the earlier report of Mr Southon.