3.5 Expert evidence
164 In their first joint report (prepared before the trial), the experts accepted what Dr Lauriston Sharp had written, namely, that "spiritual correspondence" (indicated by matters such as totemic commonality, shared dreaming tracks, spirits and associated rituals) was a critical component of succession in this region of North Queensland. However, at that stage the experts said that they would be assisted by further evidence of ancestral connection and assertion of rights in addressing the "complex issue" of whether the Kurtjar people had acquired rights and interests in land and waters within the claim area from a now extinct group in accordance with traditional laws and customs.
165 In their second joint report (also prepared before the trial) the experts agreed that the use today of labels such as "Kurtjar" and "Ariba" represents the "ossification of more labile forms of identification relating to Aboriginal identity, country, language and dialects at the time of effective sovereignty". They explained that research had shown that, historically, Aboriginal people spoke multiple languages and that "language was a marker of shifting social identities in country". They said that, more recently, there has been a move to "greater corporatisation of Aboriginal identity". That had occurred partly as a result of Aboriginal groups having to engage in the wider Australian society and assimilating anthropological concepts such as "the tribe".
166 The experts explained that historical mapping of a First Nations people's country was sometimes based on a priori concepts of tribal boundaries and that this had influenced contemporary views. They also said that, in addressing the allocation of rights and interests at sovereignty, it was not useful to enquire into 'tribes' and 'boundaries' and that they would address this issue by considering the countries of apical ancestors included in the claim group description. I deal with the apical ancestor issue below, but many of the differences that the experts expressed in their various reports resolved during their concurrent evidence. The experts identified several maps, some of which were historical, as relevant to their opinions and discussed these during their concurrent evidence.
167 In 1996, Dr Black prepared the map below for his draft of a Kurtjar dictionary (the Black and Gilbert map):
168 In his notes on the Black and Gilbert map, Dr Black wrote (identifying that Rolly Gilbert was his principal source of what it depicted):
The Kurtjar boundary was worked out as carefully as possible on the basis of Rolly Gilbert's information, and this agrees in general terms with other information available. Obviously, however, the boundary cannot be considered as reliable as one mapped by a trained cartographer working on location with numbers of authoritative Kurtjar and representatives of neighbouring groups. In any case, note how the available information suggested that the southern boundary distinguished "proper" (or perhaps "core") Kurtjar country from that shared by the Kurtjar and the Kuthant - hence "Kurtjar and Kuthant mixed". Other information suggested that the Kurtjar may also have shared the country along the eastern boundary north of the Gilbert River with other groups.
(emphasis added)
169 Dr Brunton prepared the following map which illustrates some of the disparities between the mapping attempts of one well-known anthropologist, Norman Tindale, and the attempt in the Black and Gilbert map, which is superimposed over the pink coloured claim area (the map should also be understood on the basis that the Kurtjar area on the west coloured white covers the Delta Downs station).
170 During their concurrent evidence the experts discussed the relatively sketchy and inconsistent historical materials that various anthropologists and the linguist, Dr Black, had written about the locations of Kurtjar country, its boundaries and those of their neighbours. Because of the significance that Dr Brunton placed on the Black and Gilbert map, the expert evidence went into some detail about Dr Black's work and how it could be interpreted.
171 Early in his field work, Dr Black prepared a report in January 1975 which included the map below:
172 As the agreed facts recorded, summarised at [16] above, since effective sovereignty it is likely that, first, estate groups in relation to parts of the claim area have become extinct and those parts are now included in the claims of the Kurtjar people and, secondly, the pre-sovereignty laws and customs provided for succession to country in which a group holding rights became, or was becoming, extinct. Warren Beasley's statement to Dr Martin as to how Kurtjar people had come to "keep an eye" on Miranda Downs station, that I set out at [62] above, referred to "tribe here [at Miranda], they're all gone". This appears to accord with the historical anthropological writings that referred to or discussed the now extinct Rib and Walangama language speaking people or groups occupying parts of Miranda Downs in the past.
173 While I found that each of the experts was endeavouring to give his evidence honestly, I formed the view that Dr Brunton was prone to search for reasons not to make obvious concessions. For example, Dr Brunton relied in his report and oral evidence on the Black and Gilbert map as significant evidence that Kurtjar country was well to the west of Miranda Downs. In response to an earlier report by Dr Brunton, Dr Martin set out in his first supplementary report statements that Dr Black recorded in his 1974, 1975 and 1977 field notes that showed that the Black and Gilbert map relied on Rolly Gilbert without taking into account statements by other contemporary, knowledgeable Kurtjar elders as to the eastern extent of Kurtjar land, in the following paragraph:
Further, I note that Black's reliance on Rolly Gilbert skews his data somewhat (a point which could also be made about Norman Tindale's mapping efforts in the region). At the time of Black's research, Kurtjar people maintained a variety of views about the location of Kurtjar country. These views generally suggests that Kurtjar territory expanded beyond the boundaries identified by Black. For example:
a. Halo Ward told Paul Black: 'All Kurtjar country, right up to Stirling, Miranda … Strathmore' (Black 1977: 40).
b. Billy Adam told Black: 'Kurtjar, they're just … just the part of the country here [at Normanton?]…. Around Delta, an' all them places, around the Gilbert River … That's the … that's the real centre the … centre the … tribe of the Kurtjara'. In response to questioning from Black, Adam expresses the view that Kurtjar people came south of Walkers Creek 'right through … back here to Normanton', 'right down the Gulf, right on the coast there', past the Gilbert 'just about … far as the … Macaroni … an' then … back … from there … back … further up …. At the other end been … uh … this … this … (Kunjun), an' (Kokobadig) and all the people up there further … An' back around, back this way [i.e. to the east] it'll be (Kumunmur) 'n' … 'nd, uh … (Takalak), all them people, back this way, towards Croydon 'n' Georgetown' (Black 1974, Fieldbook V: 20-22). Asked how far inland, Kurtjar people's country went, Adam told Black 'as far as the … forest … I know … is far as … between … between Gerogetown an' Croydon' (ibid: 22).
c. Peter Campbell told Black that Kurtjar territory included Normanton, Maggieville, Double Lagoon, Myra Vale, Lotus Vale, Miranda Downs, Glencoe (Black 1974, Fieldbook V: 47).
d. Robert Kettle told Black that Kurtjar territory was 'down to the north side of the Norman at Normanton … "up" (inland) as far as Miranda, Vanrook … Strathmore … (kumulmar/takalak at Croydon) … Glencoe, all around Maggieville; north to Dunbar' (Black 1975, Fieldbook XI: 46).
e. Toby E told Black that Kurtjar 'between the Gilbert and Walkers Creek …. [and the] Staaten' (Black 1974, Fieldbook V: 33).
(emphasis added)
174 During the concurrent evidence, Dr Brunton became evasive about what those informants meant, saying "it's not clear whether they're talking about country that they've worked, and which they see themselves as having particular association with". He gave the following evidence:
MR HUGHSTON: Halo Ward told Paul Black: All Kurtijar Country right up to Stirling, Miranda, Strathmore. What's the ambiguity about that statement? - - - Well, it's puzzling because Strathmore is to the - to the east of - of Stirling and Miranda. "Right up to" does not necessarily say "includes". I just don't know just what he was - what he was seeing the extent of country and what he actually meant whether he was - and I go back and have to repeat myself - whether he was referring to traditional country or whether he was referring to country with which Kurtijar had to be associated. Certainly, the extensive list of place names that Paul Black recorded from Halo Ward is limited to the, sort of, coastal strip. I think except for one - maybe Dorunda - he - none of those place names extend over to what he supposedly included.
HIS HONOUR: I'm not following the geography. If we look at your map 10 on page 1686 [being the map reproduced at [171] above], Strathmore seems to be at the east - - - Yes.
- - - of Miranda Downs, so if it goes right up to Strathmore, it would seem that Halo Ward is suggesting - assuming that Strathmore constitutes the western boundary of the land - it includes Miranda. - - - Your Honour, Strathmore is a very large station. What he has indicated there is the homestead. So it - you know, Strathmore could well include any - I don't have the dimensions, but it really could include a very large area, so he may have been thinking of, sort of, zigzag kind of boundaries. I just don't know…..
MR HUGHSTON: Now, irrespective of how far into Strathmore he might be saying Kurtijar Country is, you can't get to Strathmore until you've gone through Miranda Downs. So he's clearly including Miranda Downs as Kurtijar Country. - - - The - I just - I mean, I can't respond to it because I just don't have the - the boundaries and geography of the map and the roads in my mind. But it's a possibility.
Well, how about what Peter Campbell said when he names, in that same paragraph, Double Lagoon, Myra Vale, Lotus Vale, Miranda Downs, Glencoe. - - - Yes, I accept that he said that. And as - the question is, what did he mean by that? Was he referring to traditional boundaries, or was he referring to country which Kurtijar - or mean Kurtijar had come to be associated with through working on pastoral stations.
Well, they've all been asked where do they consider Kurtijar Country to be. Isn't it the most obvious interpretation of that, that he's asking him where his traditional country is? The country associated with Kurtijar People. - - - These are questions that are asked at very different times. It's not as though we - the - it's the one sort of question that has been taken from a - you know, a formal list. We just don't know - 74, 75, 77.
(emphasis added)
175 Both Dr Martin and Dr Palmer were experienced as anthropologists in obtaining information from Aboriginal informants about the extent of their country. Dr Martin said that "informants will tend to move through country" and Dr Palmer, agreeing, said "the Aboriginal people tend to describe their country as a journey through it". Dr Brunton, subsequently to his evidence that I have quoted above, revealed that he did not have enough experience in cultural mapping with Aboriginal people to express a view as to how they describe their country. In my assessment, Dr Brunton's lack of experience in this regard is likely to have caused him not to have appreciated the significance of statements such as those of Halo Ward and other knowledgeable Kurtjar elders and instead to have placed too much reliance on documents produced by Dr Black as to the location of Kurtjar country.
176 From an anthropological perspective, as Dr Palmer explained, because a language group is neither a territorial group, nor a society, there is no direct correspondence between the location of the speaker of a language and the extent of the territory of a society. Dr Martin explained that anthropological methodology for the cultural mapping of land interests involves the researcher recording in field notes what various Aboriginal informants state as the location of their land interests and then accompanying each person to the area he or she described. He said that Dr Black had not appeared to have done this for other informants who said that Kurtjar country was more extensive than the places that he visited with Rolly Gilbert and Butcher Pallew. Thus, while Rolly Gilbert was very knowledgeable about areas in the north (near the Staaten River and Macaroni station, with which he had a totemic attachment), Dr Martin said that Dr Black had made a field note that Rolly Gilbert's knowledge diminished in other areas where Dr Black had to rely on different informants. That experience is very common, namely, particular members of a group will have detailed knowledge of (and sometimes authority to speak for) country in one location, while others can do so for various different locations within a larger area associated with a land owning group or society. Dr Palmer instanced that a totemic attachment could give an individual a right to speak about a particular locale, which accords with the lay evidence to which I have referred at [133]-[134] above.
177 I do not accept that Dr Brunton was unable to understand that the whole of Strathmore station was east of Miranda Downs. He had been the expert witness for Stanbroke not only in this proceeding but in an earlier proceeding involving a Tagalaka native title claim (being the one that, at one stage, made the claims over Miranda Downs that Garry Owens attributed to a 'misunderstanding' (see at [119] above)). Dr Brunton was very familiar with the boundaries of Miranda Downs. In my assessment, he was clutching at straws to avoid acknowledging, what I find to be, his excessive reliance on both the Black and Gilbert map as being "the most detailed map of Kurtjar boundaries available" and his criticism of Dr Martin's contextualisation of how the Black and Gilbert map and another document that Dr Black had prepared in 1980, entitled "About Kurtjar Land", came into being.
178 There are two versions of About Kurtjar Land in evidence. I admitted those two documents into evidence but limited their use under s 136 of the Evidence Act to evidence of documents considered by the experts but not as evidence of any of the facts asserted. One contained four unheaded and undated pages of names and purported signatures. Some names appear twice and some signatures are in the handwriting of the same person who wrote other names and signatures. This version does not include the map that the second paragraph on its first page anticipates in saying "the map on the next page of this paper shows where our land is". The other version contains a map on the second page that is reproduced below:
179 The legend for this map notes that its place names are spelt phonetically and so would be meaningless to a non-expert linguist. It states that the map was drawn in Canberra in 1980 by Dr Black and Rolly Gilbert. It also has numerous place names east of the north-east boundary line below the Staaten River. That indicates that Dr Black and Rolly Gilbert were apparently going into some detail about sites that were not shown as Kurtjar on the map.
180 Much of the area of Kurtjar country depicted in both the Black and Gilbert map and the map in About Kurtjar Land came to be included in Delta Downs station, as the map below shows (the Black and Gilbert boundary is the red dotted line and the solid blue line is the boundary of the claim area, thus, land to the west of the blue line includes Delta Downs station):
181 I accept Dr Martin's and Dr Palmer's evidence that Dr Robert Layton, the anthropologist who accompanied Dr Black on his field work, recorded that he, Dr Black and Warwick Dix (all of whom were working at the Australian Institute of Aboriginal Studies) recorded that they only visited the areas depicted as Kurtjar in the Black and Gilbert map. In a 1974 field note, Dr Black recorded that Rolly Gilbert told him that Kurtjar country extended out as far east as Strathmore on the Einasleigh River, but the eastern border was not clarified. In 1975, Dr Black made a field note in which he recorded that Rolly Gilbert responded to his asking "tell me all the dinkum Kurtjar places you can think of" (where 'dinkum' seemed to mean pre-sovereignty occupation):
Delta … /marivayl/ [i.e. Myra Vale] … an' … Lotus Vale … an' Stirling … an' Miranda is kumulmar [Gilbert seems to have used this term interchangeably for Rib and Walangama]…/Vanrook … all in the … that's the kumulmar … mixed with the kunjin … Staaten … Koko-bera … an 'kunjin … olkol all mixed, three lots of 'em/ Macaroni ... he's a belong to Kurtjar … dinkum Kurtjar
(emphasis added; Dr Martin's annotations of this note are in the square brackets)
182 Dr Martin noted that this description was ambiguous. However, on one view, Rolly Gilbert could have been referring to an overarching society comprising the other language groups or tribes as all "dinkum Kurtjar". Importantly, on the 1977 field trip, Dr Layton made the following note:
Rolly states that Walker Creek is Kurtjarr boundary in south; & that this morning he also mentioned it as s[outhern] boundary of Delta Downs - the Station he wants the Kurtjarr to have. The D[elta] Downs/Lotus Vale boundary was also given as a Kurtjarr boundary yesterday … may be some contemp[orary] political significance in his specifications.
(emphasis added)
183 Dr Martin observed that those "political" considerations may have influenced the mapping based on Rolly Gilbert's concern to secure Delta Downs station for the Kurtjar people. Dr Palmer also observed (with Dr Martin's agreement) that the field trips were on the western parts of the claim area where they were collecting information and site details and "we don't really know what their views were about this eastern area. It's not in the material per se". Dr Palmer added that in 1975 in his hand written report for the Institute (in which the map at [171] appeared), Dr Black referred to the Walangama in a list of other languages. Dr Palmer said that this report mixed up (Dr Black's interest in) language with ancestry, which was related to a language identity. Dr Martin agreed, saying that the hand-drawn map (at [171]) was of language territories and that Dr Black was working in a conceptual framework that associated language groups with rights bearing entities.
184 In addition, Norman Tindale recorded in 1963 that Rolly Gilbert had told him that "Delta Downs is the centre to which his people drifted". I infer that Dr Layton's observation about the "political significance" of Rolly Gilbert's focus on Delta Downs in his interactions after 1974 with the Institute personnel is correct and that that focus and the presence of large numbers of Kurtjar people on Delta Downs influenced the mapping of what was said to be Kurtjar country.
185 Importantly, Dr Black's hand-drawn map (at [171]) depicts that the Kurtjar and Rib areas overlapped in the east. Dr Palmer said that this drawing conformed to the view Dr Black expressed in his 1975 report, namely that the Rib and Kurtjar were virtually indistinguishable and the Rib might have been a subgroup of an overarching society that also included the Kurtjar. Of course, as Dr Palmer noted, by 1977 Dr Black had learnt much more and may have changed his view when writing About Kurtjar Land.
186 As Dr Martin observed, Dr Brunton had chosen, in effect, to prefer Rolly Gilbert, Butcher Pallew and Willy Sailor over the other Kurtjar persons who made statements that Dr Black recorded in his field notes as to their understandings of the extent of Kurtjar country. In my opinion, that preference affected Dr Brunton's consideration and evaluation of the other material in evidence so that he discounted indicia that suggested that Kurtjar people had connection with or had succeeded to areas to the east of those in the Black and Gilbert map. There were indicia in About Kurtjar Land itself that Dr Black wrote it based on information from Rolly Gilbert and Butcher Pallew to assist them in garnering support for the acquisition of Delta Downs for the benefit of the Kurtjar people. It is not difficult to infer that, in the context of that period, elders like Rolly Gilbert and those who supported their cause, like Dr Black, did not wish to raise more extensive claims because of concerns that the efforts to promote the acquisition of Delta Downs might be derailed if it appeared that the Kurtjar people had claims to a much larger area. The account in About Kurtjar Land presented a strong case (as was common ground both with the experts and the parties) for the Kurtjar's continuous connection to the area centred on and immediately around Delta Downs. The document, although phrased in places as if it were written by Kurtjar people, was Dr Black's version of information. It contained phonetic spelling of Kurtjar words that cannot be spelt or read unless one is trained in that skill. For example, it stated:
187 The document also recorded that over the previous 10 years "quite a lot of white people have been coming through Normanton saying that they want to help us in different ways", including by trying "to get us one piece of land". It stated that Rolly Gilbert had been "going round for years to places as far away as Canberra to tell people about these things… Maybe there's no way we can get our land back today, we don't know". One of the versions of the document in evidence had a cover sheet written by Dr Black with his suggestions about how to get it signed and then sent to various persons, including members of Parliament, government bodies, other Aboriginal groups and the media "to kelp Kurtjar get their land back".
188 In his first report, Dr Martin observed that he had recorded many conflicting opinions of Kurtjar individuals as to the eastern boundary of Kurtjar country. As he and the other experts agreed, there is usually a fluidity of where exactly First Nations people locate their territorial boundaries that cannot match the skill of a cartographer. Dr Martin said that the Kurtjar people's strong association with Delta Downs "clearly complicates the question of boundaries in the east" because they have come to identify it so readily as their country. And, the restrictions on access that, among others, Miranda Downs station, imposed over many years has contributed to some ambiguity among Kurtjar people about the eastern boundary of their country.
189 Dr Martin also opined in his first report that the geographic flexibility of Kurtjar individuals in identifying the eastern boundary "is also complicated by what appears to be the operation of a completed process of licit succession by Kurtjar peoples to part of what was previously Walangama and Rib country with the demise of those language groups" and that Tagalaka country is further to the east.
190 Dr Martin explained in his first report the anthropological significance of Warren Beasley's ambiguous statement to him that I have quoted at [62]. He said that, there, Warren Beasley had used "Tagalaka" uncertainly to refer to Aboriginal groups previously associated with country to the east of the Kurtjar people's land and waters. Dr Martin said that Dr Black, in a 2017 paper, discussed what Johnny Casey (born in 1909) had told him of the similarities between the Kurtjar, Rib and a Croydon language. Croydon is a town to the east of Strathmore Station which is associated with the Tagalaka. Dr Martin opined that the Croydon language to which Johnny Casey referred was presumably Walangama because, although they spoke a different language, he (Johnny Casey) could understand it. Dr Martin said that, having been born in Croydon, Johnny Casey married Melba Duncan at Delta Downs and his children included Edith Casey, Mervyn Edwards' wife. He said that this family identified solely as Kurtjar and expressed no connection with Rib, apparently having "retrospective[ly] prun[ed]" knowledge of Johnny Casey's distinct identity. However, some knowledgeable Kurtjar, including Warren Beasley and Barbara Bynoe, continued to associate Johnny Casey with another unnamed group to the east of Kurtjar country. He said, however, that this was an ambiguous example of a succession event. Similarly, the descendants of Bynoe B (the son of Kangaroo, who was associated with the Gilbert River, and Molly, who was associated with Croydon, both of whom the experts agreed were apical ancestors of the Kurtjar people), all identify as Kurtjar. But many Kurtjar individuals remember Bynoe B as coming from Croydon (where his parents then either lived or to which he had been removed).
191 Dr Martin said that in 2017 Dr Black had changed his earlier view and by then considered the Rib people were distinct from the Kurtjar. However, Dr Black considered that all three languages had cognate or closely cognate section or "skin" terms (i.e. terms that divided persons, animals and things into categories for which traditional laws and customs prescribed rules about, for example, marriage and avoidance). Indeed, Dr Black considered that Kurtjar and Rib languages were very much alike, with only occasional suggestions of difference.
192 Dr Martin referred to Dr Layton's field notes of information that Rolly Gilbert imparted. He said that the Kwanthara (so named by, or based by Dr Layton on, Norman Tindale), who lived at the north of Kurtjar country below the Staaten River, had sites on Staaten lagoons that had Kurtjar names. As the Kwanthara were "dying off", the Kurtjar moved into their country up to the Staaten River, and another tribe, the Koko Bera, moved into it north of that river. Rolly Gilbert described Kwanthara and Kurtjar country going towards the Staaten River as "mixed up". He said, recounting a story that he had been told, that the white settlers were "knocking us back" and that the Kurtjar had to hide in swamps but that "white were bought off by giving them Ab[original] girls as 'wives'". Dr Palmer thought that the available material left unclear what process occurred by which the Kurtjar came to occupy Kwanthara country, while Dr Brunton thought the process was consistent, at least, with succession.
193 Dr Martin concluded in his first report that the Kurtjar had succeeded to country in the south-east and north-east of the claim area that previously had been associated with Walangama, Rib and Kunjen (Ogh Undjan) through operation of their continuing system of laws and customs.
194 In his second report, Dr Martin described indicia of succession as including territorial proximity, shared traditional law and custom or pre-existing systemic grounds for territorial amalgamation such as:
a categorical system to connect the extinct and incoming groups through kinship, marriage and historical association that confers 'secondary rights'. Secondary rights can arise because of facts such as the place of a person's conception, birth, death and burial as well as ritual ties. Secondary rights can transform gradually over decades into primary rights;
examples of succession 'events';
the incoming group assimilates the new area into its existing cultural landscape, which can involve considerable simplification;
the contemporary First Nations' people (i.e. descendants of the original incoming group) not identifying with historical labels (i.e. of the extinct group) so that there is an absence of dispute relating to the succession (of the incoming group).
195 Dr Martin opined there would be licit succession where the contemporaneous First Nations people view the present situation as resulting from the continuation of traditional laws and customs or as not involving anything having taken place, in the sense that they understand that the land and waters had always been the country of what is, in reality, the incoming group. This is the concept that Dr Martin and Dr Brunton described with the controversial label "strategic" or "cultural amnesia" to which I referred at [63]-[64].
196 Dr Palmer did not agree that the incoming group immediately "forgot" the extinct one. Rather, referring to Lauriston Sharp's observation that the incoming group retained knowledge of the past for quite a long time, he said this involved the incoming group, at the outset, being open to the fact that the extinct group had died and that they were the right totemic group to succeed. However, over time and generations, as a feature of oral traditions and in particular contexts, this knowledge will come to be "forgotten". Both Dr Martin and Dr Palmer emphasised that succession occurred between land holding, as distinct from language groups, who maintain spiritual correspondence with the area. They said, and I accept, that this distinction is fundamental and the two types of group should not be confused.
197 In his third report, which Dr Palmer prepared after the on country phase of the trial, he referred to Warren Beasley's statement to Dr Martin set out at [62] above. Dr Palmer noted that in his second report he had criticised Dr Martin's analysis of the data by which he (Dr Martin) had reasoned that the Kurtjar had succeeded to the eastern part of the claim area, including Miranda Downs. Dr Palmer considered that, when Dr Martin had written his reports, the data did not reveal a process that sufficed for succession. Dr Palmer characterised succession as a process in which the incoming group asserted rights to the country of the extinct group in the eastern part of the claim area and exhibited knowledge of the totemic geography necessary both to manage its spirituality and as a prerequisite of land ownership.
198 However, by the time of his third report, Dr Palmer considered that the ethnographic materials, especially the video evidence played at the hearing, that included videos taken on Miranda Downs, had remedied substantially the deficiencies in the data available to Dr Martin in respect of succession. Dr Palmer explained that the witnesses' evidence supported his revised opinion that the Kurtjar people believed that spiritual beings that they comprehended, such as the chacharr, water spirits (scil: water gins), red legged devils and spirits of deceased Kurtjar ancestors, inhabited particular places within the southern portions of the claim area, including Miranda Downs, and that they had the ability to manage the spirituality of those portions, including Miranda Downs. He opined that the Kurtjar believed that they hold totemic affiliations which link them in a general sense to the country of the claim area, including in Miranda Downs and that the spirits of their ancestors now manifest as totemic animals or birds. He gave, as examples, in that report and in his oral evidence, Joey Rainbow's descriptions of how his totem of the saltwater albino crocodile and his grandfather's totem of the barramundi connected the individual to all fresh and saltwater manifestations of that totem and to all of Kurtjar country. Dr Palmer said that, as Joey Rainbow had put it, the totem or dreaming was not about a place but "it's about the fish" (see [75]). Dr Palmer understood this as signifying that "he has that intimate relationship, spiritual relationship with the fish within the countryside". He also referred to Harold Banjo's evidence of his totemic relationship with barramundi ([94]) and Fred Pascoe's and his brothers' with black cockatoos ([28] above).
199 Dr Palmer opined that the Kurtjar consider that they have a spiritual correspondence with the southern and eastern portions (including Miranda Downs) of the claim area that "equip[s] them to enter the country, use it and manage its resources, both physical and spiritual". He referred to the lack of recollection that Kurtjar witnesses at the trial and informants to Dr Martin had about any prior group occupying the southern and eastern portions of the claim areas as an indication that the process of succession was near to completion.
200 Dr Palmer also referred to the evidence of Garry Owens, who as a Tagalaka, recognised that Miranda Downs was Kurtjar country and that he was a stranger on it who could not manage its spiritual forces (see [118]-[125] above). He also noted Mr Owens' evidence that he had heard of the Walangama from his old people and that they were a mixture of Kurtjar and Tagalaka and shared many or similar laws and customs. Dr Palmer acknowledged that there was considerable uncertainty in Mr Owens' account but opined that it reflected Mr Owens' understanding that the Walangama once had occupied land and waters between Kurtjar and Tagalaka country.
201 In Dr Palmer's opinion, the absence of surviving members of the Walangama and Mr Owens' evidence supported an inference that the Kurtjar had succeeded to their country and shared their laws and customs. He considered that their own traditional laws and customs enabled the Kurtjar "to leverage their knowledge of the supernatural world to assert the command of rights in that vacated country".
202 Both Dr Martin and Dr Palmer agreed that the process of succession of the Kurtjar people to the land and waters in the south, south-east and east of the claim area of the former occupants (the Walangama and Rib) was near completion. That was because the First Nations' peoples still had some recollection of, at least, the Walagama or another group having once occupied those areas. In Dr Palmer's view, the actual event of succession (as opposed to the process by which it occurred) was when the last survivor of the extinct group died, but that the process to complete the succession might take several generations. The process would continue until the succeeding group's, and their surviving neighbours', knowledge and oral history no longer memorialised or referred to the extinct group, so that all of them conceived of the succeeding group as, in effect, having always occupied the relevant land and waters as their country. I accept that evidence.