DOWSETT J:
1 These proceedings arise out of two applications for determinations that native title exists over a total area of 17,212 square kilometres. The relevant area lies between the Denham and Peak Ranges to the west and the Connors and Broadsound Ranges to the east. The southern boundary, for much of its length follows Lotus Creek and the Connors River until it joins the Isaac River. The applications are brought on behalf of the Barada Barna People and the Widi People. There is no real doubt that the Barada Barna People are the traditional owners of most of the area in question. However there has been a dispute as to the northern boundary of the Barada Barna country where it meets the southern boundary of Widi country. The dispute has now been resolved, and today, the Barada Barna People's traditional ownership will be recognized as will be the boundary between the Barada Barna and Widi lands.
2 Much anthropological work has been done in seeking to identify the traditional owners of this area. The bases for distinguishing between Barada People, Barna People and Widi People are somewhat elusive, save that there is substantial agreement as to their interests in the area with which we are concerned. The evidence suggests that prior to European contact, the Barada People traditionally occupied the south eastern part of the area, whilst the Barna People were further to the west. The Widi People were in the north. The evidence also suggests that these groups were part of a larger society occupying the upper reaches of the Fitzroy River catchment area and having ongoing association with other groups in downstream areas. Mr Leo sees the groups as being part of the Birri Gubba Nation, the lands of which stretched from the present location of Townsville in the north to that of Marlborough in the south, and inland to the Great Dividing Range. Many families claim special connection with identified locations within the claim area.
3 Prior to 1845 there had been contact between coastal indigenous people and mariners. However the first European contact in the Barada Barna and Widi lands appears to have occurred in 1845 when Leichhardt passed through on the way to Port Essington. He spent a considerable period of time here. Mr Leo notes that in traversing the region, Leichhardt and his party recorded their observations of indigenous people and their foodstuffs, implements, weapons, adornments and behaviour. They also observed "well beaten paths", axe marks in trees, freshwater wells, fish traps, middens and camps.
4 Leichhardt was followed by the explorers, Thomas Mitchell and Augustus Gregory and then the squatters. Mr Leo opines that:
Initial European settlement was driven by three forces. The primary force was pastoralism, which blanketed the Region with hundreds of dispersed sheep and cattle stations less than a year after Queensland's pastoral districts came into existence on the first day of 1861. Almost simultaneous with this was mining, although this second force was confined to only a few select, small areas across the Region. Nonetheless, almost overnight it created a handful of large inland townships, although most were short lived. It also provided the stimulus for creating many of the Region's main roads, along which inns and then some small communities arose, such as Nebo.
5 There was conflict between the Aboriginal inhabitants of the region and the Europeans who came in increasing numbers. By the late 1860s the pastoralists had begun to employ cheap Aboriginal labour. By 1886 well over half the employees working on northern cattle stations were Aboriginal. This allowed the Barada Barna and Widi Peoples to maintain connection to their country.
6 Many Widi and Barada Barna People have sworn affidavits for use in these matters. They set out the claimants' relationships with their respective areas and their traditional laws and customs as practised before and around the time of sovereignty. The affidavits also establish that the Barada Barna and the Widi Peoples have continued, until the present time, to hold and exercise their native title in accordance with those traditional laws and customs. The affidavits say much about the close relationships within each claim group and between the Barada Barna and Widi groups. They also say much about traditional laws and customs. Particularly moving are the accounts of government removal of people from traditional communities. Clearly, even now, many years after those events, the present generations continue to feel the pain.
7 Concerning the Barada Barna People, Mr Leslie Charles Budby said at paras 8-10 of his statement:
8. I estimate that there are now about 500 Barada Barna people. There are a number of families in the Group. Only a small proportion actually live on Barada Barna country as it now comprises mostly mines and pastoral leases meaning that there are very few places where it is possible for Barada Barna people to live. In addition most of the Barna people were slaughtered in a number of massacres in the 1800's and their numbers have not recovered. I retained a close association with some of them and visited many of their people when I was young, these included the Lotus's and Ifflies. The only Barna person I am aware of who is now still alive is Sean Lotus I used to visit his mother on a regular basis with my mother and grandmother. We would visit them in Clermont and they would come and visit us at Nebo or Mackay. We used to always meet at Nebo Creek on the Rodeo weekend. Many Barada children and families were forcibly removed from their country, often to Cherbourg in particular, but some continued to live in nearby population centres when they were allowed to make that choice and others have reconnected with the wider group as they have learned about their heritage.
9. The Barada Barna group is not reluctant to accept people who have the right bloodline, even if they have been away from the area and not kept in contact with the group for a long time. We understand that some families were less lucky than others but, as long as a person with the right ancestors is willing to learn to fit in with other Barada Barna people, that person will be treated with the respect and be permitted to enjoy the rights of a Barada Barna person.
10. By being a Barada Barna person, you inherit rights in relation to Barada Barna country. These rights are held equally by and shared with all Barada Barna people and can only be passed on to the next generation of Barada Barna people. All Barna people have rights to the whole of the Barada Barna country - people or families do not have their own areas, nor do people with Barada or Barna backgrounds. It is all shared. This is the way I have been taught that it has always been and always will be.
8 At para 35(a), he said concerning Lake Elphinstone:
... Lake Elphinstone is in the northern part of Barada Barna country. It is an area where there are good open areas for camping and natural food and water is available. It is a place where other Aboriginal groups from nearby came and met with the Barada Barna for ceremonies. In a number of places near Lake Elphinstone (and in the area where Maggie Barker was brought up) there are caves with rock art in the form of hand stencils. These were shown to me by my Uncle Eric. Uncle Eric's told me that his grandmother, Maggie Barker, had shown this art to him and told him that these were places that are special to us because our people used to camp there. As Barada Barna people it is our responsibility to show respect to our ancestors by looking after these places. ... I do not normally tell people (other than trusted Barada Barna people) exactly where these art works are as I have seen similar art works vandalised and disrespected when the location becomes known and curious sightseers visit.
I was taught that Lake Elphinstone was a place in Barada Barna country where other groups from over the ranges such as Jangga and Wiri people would gather and meet for ceremonies. In addition the banks of the lake were a place where Barada Barna people had regularly camped for as long as anyone could remember. My grandmother and Uncle Frank Budby (non biological) related to me the story about "'Nebo Les". He was my cousin biologically but who, because he is older than me, I referred to as Uncle. I was told that as a baby camping with his family at Lake Elphinstone Uncle Nebo Les was playing on the banks of the lake when an eagle swooped down and grabbed him and tried to carry him away. The other children grabbed him by the ankles and kept him on the ground. ...
I have often camped at Lake Elphinstone, I can remember going there when I was eight years old and was taken there by my mother and grandmother. My grandfather and uncles were also there. We often used to travel from Collinsville to Nebo and this was a natural stop, as it had been for our people for as long as anyone can remember. We always camped in the same place. I have taken my children and camped there on many occasions and still do so. It is still a stopping point for our people when travelling in this area. This is a place enjoyed by our people now and in the past. It is open to all Barada Barna People as it always has been open to them to enjoy this area because these are places on our country.
9 Mrs Eileen Pegler said, concerning the Widi country at paras 56-60 of her statement:
56. My mother told me that when she was living at Nebo that she worked on stations close to Nebo. Some of the places that she spoke about are Burton Downs, Oxford Downs, Cerito and Funnell Creek. She told me that she walked to those places or travelled on a horse.
57. I do not know a lot about Widi country because we lived in different parts of Queensland so my father could work. However, I do know about the following places:
a. Nebo - is a very important place as this is the place where my mother was born, lived and worked. The creek bed where my mother was born is a very special place and it should never be disturbed. It is important to all the Widi people. They have their connection there like I have.
b. Lake Elphinstone - is very big lake north west of Nebo. When I first went up to Lake Elphinstone I went with Mr Sauney and other Widi people mostly men and a few women, me, Patricia Brimble and maybe Marilyn Duncan I think. We hired a mini bus to carry all of us together. I felt a real spiritual connection to the Lake and surroundings. I got goose bumps and felt really good being there. When we first arrived, Mr Sauney said something in language. I believe he was talking to our ancestors. I know there is art work there near the road way that runs past the Lake. The second day of our visit to the Lake we went on our bus and stopped near the art site. The Widi men on the bus with us got out to look at the art. I did not feel comfortable going to look at the art work so I stayed on the bus. I did not yet feel I had permission to go to a place like that. I am guided in these feelings by my mother and father. My mother told me that I should not go to a place that I am not familiar with or if I feel uncomfortable. I do know that Lake Elphinstone is a sacred place and it should never be damaged. My restraint at that time was a personal feeling and I know I cannot act against it. If I did I would be in danger. I belong to that country, that is why I have strong feelings about where I can and cannot go. The caves and the art site are places that I cannot go.
58. I have told my kids and some of my grandchildren who are old enough to understand about those places. I can take them there but it is up to them if they want to go onto those sites. They will know, inside, if it is OK for them to go onto those sites or not.
59. If I could, I would go back to Nebo and live. My mother was born there and because of that, me and my children and their children have a special connection to Nebo. No one can stop me going to live on Nebo because this is my mother's birthing place, her country and my country.
60. I was born in Beaudesert. That does not make Beaudesert my country. It is my birthplace but not my country. Nebo is my country, my mother's country and my mother's birthplace.
10 Hence it can be seen that Lake Elphinstone is a place of importance to the Widi People and to the Barada Barna People.
11 On behalf of the Barada Barna People, Les Budby and Cecil Brown Jnr comprise the Applicant in QUD 380 of 2008. Part 1 of Schedule 3 of the proposed orders identifies the Barada Barna People as all of the descendants of the following people:
Bob Lotus;
Lizzy Payne;
Daisy (wife of Booyah McDonald);
Maggie (wife of Toby Barker, Peter Darwin and Michael Angus);
"Polly" Mary (wife of Robert Noble and Bert Fox), Lizzie (wife of Paddy Flynn);
Polly (wife of Thomas Mitchell);
Lucy Ross;
Laura (wife of Duke/George Barker, Neddy/Teddy Sauney and Adam Bowen) and
Charles Budby (father of George "Saltbush" Budby).
12 On behalf of the Widi People, Paul Royce Butterworth, Marilyn Joyce Duncan, Athol Noel Goltz, Lorraine Joyce McLennan, Eileen Beryl Pegler, Kenneth Stewart Peters, Graham Ian Sauney, Oswald Alfred Skeen, Linda Wailu and Ronald Jock Watson comprise the Applicant in QUD 492 of 2013. Part 2 of Schedule 3 of the proposed orders identifies the Widi People as the biological or adopted descendants of one or more of the following people:
Jean White, mother of Albert Butterworth;
Mr Clark ("of Sutton Station") & Jinny ("of Stockton Station"), whose known children are Charlie Clark and Dick Clark;
Jinny ("of Stockton Station"), whose known child (with Mr Watson) is Charlie Watson;
Siblings Tommy Emmerson/Iffley and Arthur Emmerson;
Roger ("of Nebo district"), whose known child is Emily Rogers;
Neddy Thorney, whose known child is Sarah Mate Mate nee Thorney/Sauney;
Sophie ("of Nebo"), whose known children are Jack Skeen, William Skeen, Norman Skeen, Elsie Skeen and Mary Skeen;
Dick ("of Nebo"), whose known child is Sam Murray;
Billy ("of Nebo") & Molly ("of Oxford Downs Station"), whose known children are Jessie and Billy Sullivan;
Harry Monsell Snr ("of Lake Elphinstone") whose known children are Lily Sullivan, Flora Doyle and Harry Monsell Jnr;
King ("of Fort Cooper") and Meg ("of Fort Cooper"), whose known children are Johnny, Mick, Mitchell Dalton, Paddy Emma and Annie;
Ida, whose known child is Rene Hess ("from Nebo"); or
Maggie, whose known children are Norman Brown Snr, George "Duke" Barker and Ina Darwin.
13 The present respondents in these proceedings are the State of Queensland, Central Highlands, Isaac and Mackay Regional Councils, Ergon Energy, Telstra Corporation and SunWater, and a number of mining companies and pastoralists. The two applications have been administratively combined so that all questions in dispute between the Barada Barna and Widi Peoples may be resolved at the one time. I attach as Schedule 1 to these reasons a list of the expert anthropological and genealogical reports which have been filed in these proceedings and upon which the Applicants rely.
14 There are to be three determinations. One will be in favour of the Barada Barna People and will relate to the greater part of the area under consideration. One will be in favour of the Widi People in connection with a number of small parcels in the boundary region. The third will be in favour of the Barada Barna and Widi Peoples, concerning a shared area which is described in the supplementary report of Dr Jones at para 42 as:
From east to west this boundary runs approximately 80 kilometres from the south of Nebo to the Burton Downs area east of the Denham Range. The width of the zone is much shorter, running north to south yet with the Denham Range remaining to its north. The zone incorporates Lake Elphinstone, Kemmis Creek, and Burton Downs.
15 There is nothing surprising about there being shared traditional ownership in an area in which the traditional lands of different groups meet. Traditional territorial delineation is frequently imprecise. Inter-marriage and relocation both tend to blur distinctions, as has the impact of European civilization. The anthropologists agree that the sharing of native title rights between the two claim groups is consistent with the traditional laws and customs shared by both groups.
16 The affidavits demonstrate that the Barada Barna and Widi Peoples continue to observe traditional laws and customs through the exercise of the rights which they seek to have recognized. These are the right to:
access, be present on, move about on and travel over the area;
camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
take and use the water of the area for personal, domestic and non-commercial communal purposes;
conduct ceremonies on the area;
be buried and bury native title holders within the area;
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;
teach on the area the physical and spiritual attributes of the area;
hold meetings on the area; and
light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
17 Section 87 of the Native Title Act 1993 (Cth) (the "Native Title Act") authorizes the Court, in certain circumstances, to decide that Native Title exists, without conducting a full hearing. Broadly speaking, the Court may proceed in that way where all of the parties agree, and the Court considers it appropriate to do so. On 14 April 2016, a s 87 agreement was filed.
18 The proposed determination recognizes the existence of non-exclusive native title over the land and waters described in Schedule 1A Part 2. The Barada Barna People and the Widi People hold native title over that part of the claim area described as the Shared Country in Schedule 1A, Part 2, Table 1. The Barada Barna People hold non-exclusive native title over that part of the claim area described in Part 1A, Part 2, Table 2. The Widi People hold non-exclusive native title over that part of the claim area described in Part 1A, Part 2, Table 3.
19 Paragraphs 4 and 5 of the proposed orders provide for the discontinuance of the Barada Barna application as it applies to certain parcels of land which lie in the area covered by the application but outside of the shared area. It is accepted that native title over those areas has been extinguished.
20 The native title is to be held in trust. In the case of the Barada Barna country, the Barada Barna Aboriginal Corporation (ICN 8343) is to be the trustee and the prescribed body corporate for the purposes of ss 56(1) of the Act. It is also to perform the functions set out in the Native Title (Prescribed Bodies Corporate) Regulations 1999. In the case of the Widi country the Gangali Narra Widi Aboriginal Corporation (ICN 8363) is to be the trustee and the prescribed body corporate for the purposes of ss 56(1) of the Act. It is also to perform the functions set out in the Native Title (Prescribed Bodies Corporate) Regulations 1999.
21 Section 94A of the Act requires that a determination of native title set out details of the matters mentioned in s 225 of the Native Title Act. That section must be read together with s 223 of the Native Title Act. I am satisfied that the proposed orders address each of the relevant matters. Finally, I am satisfied that the orders are appropriate and in accordance with s 87 of the Native Title Act. I therefore make orders in terms of the three drafts, which drafts I initial and place with the papers.
22 The resolution of these matters has taken much time and effort. Since European settlement, the Barada Barna and Widi Peoples have suffered the pain and indignity of being displaced from their traditional homelands. That they have survived as a recognizable society, with ongoing connection to their traditional lands, says much about their individual and collective strength and resilience.
23 Native title rights and interests are the product of traditional laws and customs which have been observed and practised over the generations. Those rights and interests are now recognized and protected under the Native Title Act. I have not come here today to give anything to the Barada Barna and the Widi Peoples. Rather, I have come to recognize, on behalf of all Australians, that they are the traditional owners of this land pursuant to traditional laws and customs which have their roots in ancient times. I now recognize that traditional ownership. In so doing, I bind all people for all time, including the Commonwealth of Australia, the State of Queensland, the local councils and the other parties to these proceedings. On behalf of your fellow Australians and, in particular, on behalf of the Judges of this Court and our staff, I congratulate you, the Barada Barna and the Widi Peoples upon the recognition which you have achieved today. We wish you well for the future, a future in which we will all share.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.