REASONS FOR JUDGMENT
1 On 8 October 2009, Hazel Windsor and Colin Saltmere, on behalf of the Indjalandji-Dhidhanu People filed an application for a determination of native title over an area of approximately 19,730 square kilometres on the eastern Barkly Tableland, in the upper reaches of the Georgina River Basin and on the Queensland/Northern Territory border. The claim area is centred on the township of Camooweal. On 27 November 2009, the claim was accepted for registration and subsequently notified in accordance with the requirements of the Native Title Act 1993 (Cth) ("the Act").
2 The respondents to the claim are the State of Queensland, the Mount Isa City Council, Ergon Energy Corporation Limited, Noranda Pacific Pty Ltd and several pastoralists or pastoral companies including Bezuma Pastoral Co Pty Ltd, Gambamora Industries Pty Ltd, Alfred Arthur Lanskey, James Lyne Lord, Marjorie Annette Lord, Lindsay Wray Miller, David Alfred Spreadborough, Mabel Josephine Spreadborough, Venlock Pty Ltd and Waxahachie Pty Ltd.
3 The Act authorises the Court to determine that native title exists over areas in respect of which there is no existing determination. The Indjalandji-Dhidhanu claim area is not subject to any other claim or approved determination. Where, at any time after notification, the parties agree upon the orders to be made in relation to such proceedings, the Court may make appropriate orders. In exercising the judicial power of the Commonwealth, this Court resolves disputes identified by the parties. The parties may narrow those issues by admission or concession. Any such agreement must be freely made, on an informed basis. In some cases, the Court may decline to act upon admissions or concession. Where, as here, the proceedings have significance for people other than the parties, I must give careful consideration to the appropriateness of the proposed consent orders.
4 I see no reason to doubt the appropriateness of the parties' consensual resolution of the matters previously in dispute. They have had the benefit of legal advice and substantial anthropological research. I am satisfied that the proposed orders have been drafted with regard to the public interest, represented by the State of Queensland and relevant local authorities.
5 This application has been on foot for a little over three years. However it was preceded by three earlier claims. The first was lodged with the National Native Title Tribunal (the "Tribunal") in 1996 and dismissed in 2009. Two later claims were filed in 2002. In 2009, they were combined and then dismissed. The current claim has never been referred to mediation in the Tribunal. Nonetheless the parties have reached agreement in just over three years.
6 The parties agree that the native title rights and interests in that part of the claim area identified in Part 1 of Schedule 1 are, subject to paragraphs 10, 11 and 12 of the proposed orders, the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d) take and use natural resources from the land and waters of the area for personal domestic and non-commercial communal purposes;
(e) take and use the water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the claim area;
(g) be buried and bury native title holders within the area;
(h) 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;
(i) teach on the area the physical and spiritual attributes of the area; and
(j) be accompanied on to the claim area by the Bularnu Waluwarra Wangkayujuru law men who, though not native title holders, are people required by traditional law and custom for the performance of ceremonies related to the bush fire story on the claim area.
7 Section 94A of the Act requires that the Court determine the matters mentioned in s 225. I must therefore identify:
the persons or groups holding the native title;
the nature and extent of the native title rights and interests in relation to the claim area;
the nature and extent of any other interests in relation to the determination area;
the relationship between such rights and interests and those other interests; and
to the extent that the land and water in the claim area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease, whether the native title rights and interests confer exclusive possession, occupation, use and enjoyment of that land and water.
8 In considering these matters, I have been greatly assisted by the comprehensive anthropological report prepared by Professor Paul Memmott, the applicant's submissions filed on 23 November 2012 and an affidavit from Kevin Murphy, the director of Claim Resolution in the Queensland Department of Natural Resources and Mines filed on 6 December 2012. Mr Murphy has deposed to the close examination of the anthropological material by the State's anthropologist and counsel, and to the State's process for the examination of tenure.
9 The Indjalandji-Dhidhanu people's first contact with European people was probably with the Burke and Wills party which passed through the claim area in 1860, encountering indigenous people, probably the ancestors of the present claim group. William Landsborough, who led one of the searches for Burke and Wills, came to the area in December 1861 and named Lake Mary. It is an important dreaming site for the claim group. He had a number of encounters with local Aboriginal people. Professor Memmott says:
Landsborough then spent a week exploring a short distance downstream, naming Lake Francis and Lake Kenellan (now spelt as 'Canellan' on modern maps). He had a number of encounters with local Aboriginal people and made a range of observations: he noted the men to be circumcised; he recorded the word for water as 'oto' [which sounds more like an Aboriginal approximation of the English word 'water', than the Indjalandji word for water, ngulibi]; he met an old woman who had four dogs; and he observed that the river was used for bathing (Landsborough 1862:39-40). Most of his encounters were with individuals or small groups; but there was one encounter (29/12/1861) with a large group of armed men who appeared to be asserting their traditional rights as owners of this locale:-
"Camp 25 - Situated on the Herbert River. It was our intention to remain here for several days, as the grass was good and the horses required a rest, but I deemed it advisable to return at once up the river because there were about one hundred blacks in the neighbourhood of the camp, some of whom were so bold that I feared it might be necessary to shoot some of them, or give them possession of the ground. Two of them had passed our camp on the previous evening, and the troopers, with my consent, presented them with glass bottles, after receiving which they soon returned with a large mob, who remained with us till dark. In the morning they returned and surrounded the camp. Mr Campbell went up to one mob and tried to make them understand by signs that we had peaceable intentions towards them, but they from his account seemed fully bent on having us off the ground. When he was returning to the camp Jemmy saw one of the blacks hold his boomerang as if he intended throwing it at Mr Campbell, but was probably advised by others not to do so. I am not surprised that they were vexed, as we would not allow them to come up to the camp, although they showed a bunch of hawk feathers and two bottles we had given them, which they wanted us to believe were the signs of their good intention; and it is not to be wondered at, on the other hand, that we would not trust a mob of blacks, all warriors heavily armed with spears, boomerangs, clubs and little thorny sticks, to approach the camp. From my previous knowledge of the blacks, I fancied we would easily have driven them away on horseback, but this I did not think necessary. The mere fact of seeing the horses brought towards the camp made them retire to a more respectful distance from us … ."
10 The pastoralists arrived shortly after the explorers. Between 1864 and 1867 the upper reaches of the Georgina River were occupied by pioneering pastoralists, bringing sheep to this otherwise open country. Rocklands pastoral holding was established by George Sutherland in 1865. Pastoral leases were progressively established in the area, provoking conflict between the pastoralists and the Aboriginal people as they competed for the same resources, primarily water. The feared Native Mounted Police were, from 1878 to 1889, based to the north of the claim area. Their dispersal activities and disease contributed to the significant decline in the local Aboriginal population.
11 In 1898 the ethnographer, Robert Matthews first referred to the "Inchalachee" people. In 1905 he located them within the present claim area. That claim area does not cover the whole of the traditional homeland of the Indjalandji-Dhidhanu people. Much of it lies in the Northern Territory. Professor Memmott describes the "heartland" of their country as:
… on the upper Georgina River basin (incorporating Camooweal), but (extending) to include most of the Buckley River on the east, the upper James River basin on the west, and the Mingera Creek and parts of the Templeton River basin to the south.
12 The Indjalandji-Dhidhanu people describe themselves as:
(a) descended from the following Indjalandji-Dhidhanu ancestors:
(i) Idaya and his son Dijeru;
(ii) Kaduka (also known as Annie) and her son Frank Monkhouse; or
(iii) Georgina Jackson and her spouse Burketown Willy and their son Tom Fraser; or
(b) recruited by adoption in accordance with the traditional laws and customs of the Indjalandji-Dhidhanu people.
13 Professor Memmott's report identifies these three separate descent groups as the "Idaya descent group", the "Monkhouse descent group" and the "Fraser descent group". At paras 85 and 86 of his report Professor Memmott summarizes his findings in connection with the Idaya descent group as follows:
85 The contemporary members of the Idaya descent group identify as Indjalandji … of which they believe Dhidhanu is a "clan" or subgroup … . They identify Idaya and Dijeru (the son of Idaya) as being from the Dhidhanu clan on the Buckley River. The descendants of the Idaya descent group therefore appear to be of both Indjalandji and Dhidhanu descent according to their oral history … .
86 … (P)opulation decimation of the late 19th century on the Georgina has resulted in the shrinking of the Indjalandji-Dhidhanu people down to the three remaining Indjalandji-Dhidhanu groups … . In the author's view, any ethnographic or social distinction that existed between the Indjalandji and the Dhidhanu in the early contact period no longer continues in any real sense.
14 Little is known of Idaya, save that he was Dijeru's father. However Dijeru is an authentic historical figure as to whose existence there is documentary evidence. He was born in about 1861 and died in 1931. Thus his life covered the early years of settlement following first European contact.
15 As to the Monkhouse descent group Frank Monkhouse is also an authentic historical figure. He is known to have applied for an exemption from the operation of the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) in 1919, when he was aged 24 and resident at Rocklands Station. Thus his date of birth would be around 1895. It seems that his mother was Aboriginal and his father, Swedish. When he died in November 1959 his parents were recorded on his death certificate as "Frank and Annie". There is other evidence suggesting that the mother's name was "Kaduka". Whether or not Kaduka was also known as Annie is not entirely clear.
16 In the Fraser descent group, Tom (Grassy) Fraser is the son of Georgina who in turn was the daughter of Toby, an Aboriginal man from Roma, born about 1862 and dying in 1942, and Annie. Tom Fraser is generally recognized as being Indjalandji. It seems that he and his mother, Georgina must have derived their status from Annie. Georgina identified herself as "full blood" so that her mother must also have been Aboriginal. Georgina was born in either 1898 or 1905. She died in the late 1970s and was buried in Mt Isa. Tom was born in 1923.
17 Professor Memmott records the following descriptions given by individual members of the claim group in seeking to define its identity:
121 Ruby Saltmere has emphasised both descent and Dreamings as key components of the identity system of the Indjalandji-Dhidhanu Native Title group. She said that people today "acknowledge [their identity] through old people, through my grandfather Dijeru; he was plated for King as Indjalandji but wanted "recognition" as Dhidhanu too.
She noted there was only a slight difference in the dialects (Indjalandji and Dhidhanu) and that Dijeru took his identity from Idaya. Ruby stated that the:
"Dreaming holds us together" [as a group] and referred to two main dreaming sites:
(i) Dakalanji Dreaming that comes from Dakalanji site … in the west of Carlton Hills travelling across to Lake Mary on the Upper Georgina, and
(ii) the Nabanukujiya or Two Eyes site … .
Ruby emphasized the distribution of Water (or Rain) Dreaming across Indjalandji country both on the Georgina and Buckley Rivers and observed that there was nobody else other than her own group left as traditional custodians for this Dreaming complex … .
122 Shirley McNamara has stated … that the Native Title group's identity is based on a strong shared connection to country, spiritually as well as physically. She said this country was where the group traditionally belonged and that it was their area of main connection (as opposed to her father's Alyawarr country which she carefully chose not to include in this primary category). Shirley added that the strong attachment to country stretches back to and is/was shared with the group's ancestors whom she elicited as Dijeru and Rosie, Idaya, Grandmother Ivy, Aunty Kathy and Dijeru Jack. She added that members of the group believed the spiritual presence of their ancestors continues to be felt when they access the country. Shirley also stated that the connection to country had a practice aspect to it, which applied to the whole group; "never do anything out of bounds" (outside of the rules), and to behave "within the Aboriginal site of the Law … it's a tradition and you live by that". This is a practical everyday necessity that must be observed.
123 Colin Saltmere … has stated that his group identity is based on its members' shared Dreamings as well as being defined by a language (identity) and the family line stemming from Idaya. He said the group's country affiliation is centred on the Dreaming sites to which they have close attachments including Dakalanji …, Lake Francis …, Lake Canellan …, Lake Mary …, Split Rock …, Table Top …, Old May Downs …, Barkley [sic] …, and bounded by language boundaries in places such as the Templeton River and the Ranken River … .
124 There are a number of commonalities in these three claimant groups' descriptions (collected independently of one another) of their Native Title group. The first is an emphasis on the descent of the claimant group from a common apical ancestor. The second is the shared dreamings of the claimant group. Third is the set of linkages between the claimant group's Dreamings and sacred sites on country, providing a shared spiritual connection to country. Fourth is a sharing of these connections by the claimant group with their ancestors. And fifth is a shared identity with two closely related Aboriginal dialects.
18 Professor Memmott summarizes the topics addressed by traditional laws and customs as follows:
knowledge of customary songs, dances and rituals;
male and female initiation ceremonies;
Aboriginal terms of kinship, skins, personal totemic names, with accompanying rules about not calling certain persons' names, and rules of address based on respect;
rules and rituals to avoid being harmed in the claim area, such harm arising from spirits in the country as punishment for breaking such rules, and avoidance rules for certain places including gender-specific avoidance rules;
belief in environmental omens (eg pelican away from river, curlew, crows) and unseen entities and spiritual beings in the bush;
belief in conception dreamings and birth and babyhood totems, also love rituals and rituals to introduce strangers to country and site;
capacity to talk Indjalandji and Dhidhanu by the senior claimant Ruby Saltmere, numerous lexical items being recorded in these dialects and passed on to others;
knowledge of various forms of corroborees, corroboree rules, rituals and procedures;
customary practices to locate and obtain food, cook and process food, promote speech in children, for healing and for other purposes (eg prevent pregnancy);
knowledge of sacred sites and associated dreamings, social histories and the travel roots of ancestral beings; and
the requirement that non-Indjalandji persons ask permission before using or taking resources from Indjalandji country.
19 Professor Memmott also points to:
traditional economic rules and practices concerning the seasonal timing and methods of obtaining bush food;
the procurement of fauna, flora, stones and ochres in accordance with customary Indjalandji principles of environmental management, together with efforts to preserve local wildlife, to protect the ecology of the Georgina River, to protect important habitats as well as Aboriginal sites and landscapes of all types and to prevent pollution;
traditional decision-making processes exercised in relation to land and rivers and transmitted through the Native Title claim group;
evidence of ceremonies, rituals, songs, designs, observance, knowledge and stories;
adaptation of traditional laws and customs since European settlement and continued acknowledgement and observation thereof;
issues and principles of succession and inheritance of land;
preservation of Indjalandji and Dhidhanu sites and places of significance, and maintenance of knowledge concerning those areas.
20 With regard to land and waters, Professor Memmott notes:
descent-based rights and interests and an accompanying system of traditional customs and laws transmitted by cognatic descent from apical ancestors and from earlier ancestors who had possession of the country prior to European settlement;
connection to, and affiliation with a language group territory;
the existence of a Barkly regional bloc of Aboriginal groups of which the Indjalandji-Dhidhanu is one, based on common laws and customs, with associated kinship and marriage practice and exchanges of ritual duties;
sharing by the claimant group of some rights with neighbouring groups who are connected along dreaming travel routes;
decision-making authority in the hands of senior Indjalandji-Dhidhanu people who have knowledge of country and traditional laws and customs;
continual connection through the maintenance and observance of traditional laws and customs, as well as through residential, cognative, spiritual, emotional and economic connection;
belief in, and observance of laws to ensure the management of country and to prevent damage to country, including punishment for misdemeanours;
rights and interests in country being founded on traditional laws and customs of the claimant group, including spiritual beliefs involving sacred sites, totemic (dreaming) identities and ancestral spirits;
recognition of the Indjalandji-Dhidhanu system of laws and customs as articulating, within the wider regional Aboriginal system of laws and customs, which can be engaged in order to assist in overcoming, any internal problems in the maintenance and practice of the Indjalandji-Dhidhanu system;
connection to, and responsibility for particular sites and country, based on a range of traditional mechanisms of affiliation which are elements of the Indjalandji-Dhidhanu land tenure system as well as the wider regional land tenure system;
membership of the claim group based on a number of principles, specifically descent from a set of common ancestors sharing dreaming and dreaming sites, spiritual connection to country and identification as Indjalandji-Dhidhanu; and
succession of the Indjalandji-Dhidhanu to areas vacated by the decimation of other tribes.
21 Based upon 30 years' experience with the Indjalandji-Dhidhanu people and adjoining groups, Professor Memmott finds evidence of ongoing observation of these traditional laws and customs and their communication to succeeding generations. Thus he concludes that native title rights and interests held by the claim group, and the laws and customs which underpin them have their sources in the laws and customs of the community of Indjalandji-Dhidhanu estate groups that existed at, and prior to the time of first European contact, although those laws and customs have undergone adaptation as the result of European settlement.
22 Professor Memmott demonstrates that traditional laws and customs have survived, although in modified forms, any changes being properly seen as attributable to the need to adapt to European settlement. There is clear evidence in his report that those occupying and possessing the area in the 1860s and their descendants have continued to reside in and/or visit the area. I infer that the members of the claim group are the descendants of those persons who occupied the claim area at the time at which Burke and Wills entered it. Those people were probably the descendants of people who lived there in the early 1860s and, by inference, prior to 1788. I am satisfied that the Indjalandji-Dhidhanu people have an unbroken physical connection to the claim area, dating back to a time prior to 1788.