The Turrbal Ancestry Case
156 It will be noted that the Turrbal ancestry case is a very specific one. It proposes that, before Ms Isaacs had any children, she was the only known descendant of the Turrbal people as they existed at sovereignty. Further, it became clear in the conduct of the Turrbal case in court that the two limbs of the group definition (see para 16 above) are not to be understood as alternatives. The conjunctive "and" is just that: Ms Isaacs' connection to the original Turrbal people, as claimed in this case, is by way of her descent from the Duke of York, and not otherwise. As Ms Barambah put it while under cross-examination, "we're only claiming Turrbal via our Turrbal blood to the Duke of York". The integrity of the line of biological descent between the Duke of York and Ms Isaacs was crucial to Ms Barambah's case. It was highly controversial at the trial of the proceeding.
157 Ms Barambah's understanding of her line of descent was described in a written statement made by her on 22 April 2005 and exhibited to an affidavit made by her for the purposes of an interlocutory application in the Turrbal proceeding on 27 January 2006. In that statement, Ms Barambah said that the Duke of York had a daughter called Kulkarawa who was also known as Kitty. She in turn had a daughter by a Ceylonese man, known as Marri-dai-o, who had been adopted into Turrbal society. That daughter was known as Lizzie, later nicknamed "Saturday", and she married a Duncan Crowe. They had a daughter called Bella (the "Bala" referred to in para 162 below), who married a Jimmy Isaacs (the "Daki Budtcha" referred to in para 99 above). Their son was called Billy, Ms Isaacs' father.
158 Ms Isaacs was born on 27 March 1920 at the Barambah Settlement, about 200 km north-west of Brisbane. On Ms Isaacs' birth certificate, the identity of the father was given as "Billy Isaac Isaac" (just thus, with a space between the two Isaacs), the explanation for the repetition no doubt being some confusion introduced by the requirement of the pro-forma to state the "name and surname" of the father. According to the certificate, this man was born at Goomeri, and was 40 years old at the time of the birth of his daughter. This would date his birth in 1879 or 1880.
159 From what Ms Isaacs learnt from her mother and step-father, Billy's family worked on the Barambah and Kenilworth Stations, which were from the 1860s in the proprietorship of one Isaac Moore, from whose first name, according to Ms Isaacs, her own family came by its surname. In her affidavit, Ms Isaacs said:
Every now and then he (Mr Moore) of his mothar (whitefella) workers would go down to Brisbane for supplies and members of our family would sometimes travel down with them and while there our old people would camp with our other Turrbal & Gubbi families in the blackfella camps around Brisbane. On one of those trips my mother told me that my father was picked up at the Sandgate blacks' camp in the 1880s and put into the Nudgee children's home.
160 For Billy Isaacs to have been taken to the Nudgee Children's Home in the 1880s, he would then have been less than 10 years old. No record of his admission to, or of the length of his stay in, that home is in evidence. However, he would not have been held there for more than seven years: Industrial and Reformatory Schools Act of 1865 (Qld), s 8. In her affidavit, Ms Isaacs went on to say:
My father also worked on Imbil Station and Widgee as well as being part of the Aboriginal families who lived at Kenilworth, Barambah, Boobyjin, Widgee, Miva & Imbil Stations. Imbil is a name of some of our ancestors. I was told this by my mother, my stepfather Cobbo Williams and my tribal grand-father Paddy Miva.
161 In a statement attached to Ms Isaacs' affidavit made in January 2006, she said that, as a child, she was "always told by [her] elders that some of [her] ancestors came from Kangaroo Point way (the Turrbal tribe) and Woody Point way (the Ningy Ningy clan)". Had Ms Isaacs been available to give oral evidence, the question whether these parenthetical insertions reflected something she was told as a child, or were editorial additions by her in the preparation of her affidavit, might have been explored. As matters stand, however, I am left to make of it what I can, in which respect I would observe that the latter interpretation of the passage is, grammatically, the more natural one.
162 Ms Isaacs said that her father was the great-great-grandson of the Duke of York. This claimed descent was elaborated upon in her affidavit made in July 2011. Elders, and her mother, had told her that Daki Budtcha's wife "Bala" was the great granddaughter of "Dakki Yakka", nicknamed the Duke of York by the early European settlers. Ms Isaacs does not suggest that she ever knew her grandmother Bala or, for that matter, her grandfather Daki Budtcha. Indeed, in a letter to Ms Barambah dated 14 January 1998, the Senior Policy Officer, Community and Personal Histories, of the Queensland Department of Families, Youth and Community Care stated that she had been "unable to locate any information regarding the parents of [Ms Isaacs' father]". The source of Ms Isaacs' information about her grandparents could not have been Ms Isaacs' father himself, as he died when she was three years old. It was, it seems - and I do not understand there to be any doubt about this - Ms Isaacs' Kamilaroi mother, her Butchulla step-father Barp, and perhaps other elders of the Gubbi Gubbi people, who gave Ms Isaacs to believe that she was related, through her father and his mother, to the Duke of York.
163 There are two other matters referred to by Ms Isaacs in her affidavit made in July 2011 that I would mention at this stage. The first is that she claimed to have seen "the graves of some members of the Turrbal People who sought refuge at the Kenilworth Homestead" at a reunion there in 1997. As I have earlier mentioned in these reasons, the proposition that there were, in that part of Queensland in the late nineteenth century, aboriginal people who had migrated from the Brisbane area in the face of creeping white settlement is no more than surmise. I do not say that it did not happen, but there is no evidence in this case from which it could be inferred, and the Turrbal historian, Dr Fisher, said nothing to that effect. Ms Isaacs did not say what form these "graves" took, but I presume that, for her to have been able to identify the deceased people concerned as Turrbal, there would have been headstones or some equivalent markers giving names; that is to say, a permanent record of sorts. No evidence of any such record, and no evidence of the grave of any person at Kenilworth who could be identified as having been a Turrbal person, was led in this case.
164 The other matter mentioned by Ms Isaacs was that her mother told her that her (Ms Isaacs') father was "part Ceylonese and Indian". Her mother told her that some people thought that her father was a full blood aborigine, but that was not so. This otherwise trivial piece of information wove itself into the Turrbal ancestry case at the point where Kitty, the Duke of York's daughter, is claimed to have had a daughter of her own by a Ceylonese man, as mentioned in para 157 above. There is no suggestion, however, that Ms Isaacs' mother filled in that part of the detail: it seems to have been something constructed by Ms Barambah as a result of reading Petrie's Reminiscences. I shall return to this subject below.
165 Further evidence about Ms Isaacs was given by Nurdon Serico, an Elder of the Gubbi Gubbi people. He was born at Brisbane in 1933, and has lived in the Ashgrove area since 1939, and at the The Gap since 1959. His mother Evelyn was born at Tuchekoi in 1906, and was a very knowledgeable Gubbi Gubbi woman. She, and her mother Lucy Monkland, had helped with the care of the young Connie Isaacs at Cherbourg in what I take to have been the 1920s. Mr Serico said that he had learnt from his mother's brother Cliff Monkland that the North Pine River was the southern boundary of Gubbi Gubbi country. At a wedding at Redbank in the 1940s, Mr Serico met Ms Isaacs. His mother told him that she (Isaacs) was Turrbal, and that she was their sister (the latter word, of course, being understood in a traditional, rather than in a literal, sense). She added that the Turrbal were "the Brisbane River people". Some years later, Mr Serico's mother explained to him that the Turrbal were the Gubbi Gubbi's neighbours to the south. Although Mr Serico lived nearly all his adult life in what he understood to be Turrbal country, he did so, as he understood it, because he had Ms Isaacs' permission.
166 Indirect though it was - and no objection was made to the receipt of this evidence - Evelyn Serico's understanding that Ms Isaacs was a Turrbal woman should be accorded some weight because she would have been about 14 years old when Ms Isaacs was born, and about 17 years old when Ms Isaacs' father died. Having done so, however, I am still left with nothing more than some corroboration of Ms Isaacs' own evidence that she was of Turrbal and Gubbi Gubbi descent. That was her understanding, conveyed to her in the ways I have described above, and, unsurprisingly, it was also the understanding of the young woman who spent much time with her at Cherbourg in the 1920s.
167 Relevantly to the point presently under discussion, the evidence of Ms Isaacs and Mr Serico is highly derivative. We are here concerned with genealogy rather than with laws and customs, so ss 72 and 78A of the Evidence Act 1995 (Cth) have no operation. This evidence was given without objection and, in my view, appropriately so. But questions of reliability and weight remain. It is implicit in the evidence of Ms Isaacs that it was from her father Billy that her mother Bella learned of Billy's Turrbal antecedents. However, from what is known about Billy - referred to in more detail below - he did not himself hail from the claim area. On the probabilities, he could only have come to the belief that his ancestors were from the Brisbane area from something that he, in turn, had been told by others, most likely his parents. But nothing is known of them.
168 In her affidavit sworn on 27 January 2006, Ms Barambah said: "My great grandfather (now deceased) was Daki Budtcha, also known as Jimmy Isaac, a Dippil man." She said that, from the time of her earliest recollection, her mother had told her that the name "Daki Budtcha" referred to her great grandfather's position in the Dippil society as a "Gundir". From conversations which she held with many elders, and with her mother, Ms Barambah had been informed since her earliest recollection that Daki Budtcha's wife was "Bala", who was the great granddaughter of "Daki Yakka" (or "Dakkiyakka"), the Duke of York. Her mother, and those elders, always told Ms Barambah that the Brisbane/Redcliffe region was the country which belonged to her "old people", namely, her "Turrbal ancestors". Her mother always told her that their ancestor was "the boss of Brisbane".
169 Ms Barambah, who also claims Gubbi Gubbi ancestry, said while under cross-examination by Pearl Sandy:
No, my mother told me that I was from this country. We didn't get into languages really. She says, "Your country is Redcliffe, Kangaroo Point, Victoria Point." She also told me Noosa Heads, Kenilworth, Motham Mountain which is up in the Gubbi country. My mother also told me Barambah was our original place too. We didn't get into language groupings or whatever like Turrbal, Gubbi, Wakka. We were told we belong to that - those country place - those places of identity, and it was my understanding we are traditional owners of those identities as clan members for those specific areas.
Ms Barambah's evidence was, it must be said, a mixture of what she had been told by her mother and what she had learnt from her own researches, undertaken in circumstances to which I shall refer. The assignment to Daki Budtcha of the European name "Jimmy Isaacs" (or "Isaac") was not mentioned by Ms Isaacs in her affidavits. Neither did she assign the European name "Bella" to her paternal grandmother. I think it unlikely that either of these equivalents was known to Ms Isaacs, or mentioned to her daughter. As will appear, Ms Barambah came by them in other ways. Otherwise, her evidence about the identity, and the forebears, of her mother's father Billy is derivative, and adds nothing to what is set out in the affidavits of Ms Isaacs herself.
170 It was in a chance meeting with the then proprietors of Kenilworth Station, Jim and Jennifer Rowe, in 1996 that Ms Barambah came across some notes that had been made by Jim's mother Frances Rowe about the people, including the aboriginal people, who worked on the station in the early years of the twentieth century. As Ms Barambah interpreted them, they provided evidence about her forebears which has been a significant foundation stone in her case in this proceeding. Ms Barambah's interpretation is not accepted by the other parties. However, it is palpable that, as her grasp of the detail of the historical record - as she interprets it - has grown over the years since 1996, it has become more natural that she should give emphasis to anything said by her mother, and the Gubbi Gubbi and Wakka Wakka elders, when she was a girl about her roots being in the Brisbane area, and, correspondingly, less realistic to expect her to dissociate what she was told by them from the results of the reading and research which she had undertaken. Her evidence as a witness must be received in this context. Her answers were, generally, given with a confidence and assurance of one who was thoroughly on top of her subject. There is nothing wrong with that, of course, but it must be recognised that Ms Barambah's evidence was always informed by and, I would have to say, at times crafted to be consistent with, the material to which she has been exposed since about the mid-1990s in anticipation of, or in the prosecution of, her native title claim.
171 Led in cross-examination by counsel for the State using a genealogical chart showing Ms Isaacs' ancestors as Ms Barambah contended, Arthur Isaacs (Ms Barambah's half-brother) confirmed that his mother's parents were Billy Isaacs and Bella. He said that he thought that Billy's father was Duncan Crow and that his wife was Lizzie. It was apparent from the way, and the terms, in which Mr Isaacs answered these questions, however, that he was very unsure about the subject inquired of. It was not dealt with in either of his affidavits. As will appear in due course below, it was not part of Ms Barambah's case that Billy's father was Duncan Crow. What is significant is that, even prompted by the chart, Mr Isaacs did not confirm that Billy's father was a man called Jimmy Isaacs. When he was asked whether he knew anything of the people in between Duncan and Billy, Mr Isaacs said, "yes, that mum having … a half-brother too to a white fella and that - and he's - that was grandfather Billy I think." From what is known from the objective record - referred to below - it can only be concluded that Mr Isaacs was very confused about his ancestry back beyond his mother's parents.
172 Aside from the specific genealogical material to which I refer below, it is hard to identify any firm basis to give credibility to the notion that Ms Isaacs was of Turrbal descent and, moreover, was descended from the "boss of Brisbane" specifically. I do not gainsay that she was told so in the circumstances to which I have referred, but a court would normally look for something more solid upon which to found a finding that the Duke of York himself was her blood ancestor. This is a very important question, the answer to which will have the potential, together with other matters, to entrench rights and interests in places where they would not otherwise be, to the advantage of Ms Barambah and her family and to the detriment of others. In these circumstances, it is unsurprising that Ms Barambah should have sought to base her ancestry case on more reliable, more objective, evidence, and it is, if I may say so, a credit to her that she has proceeded in this way.
173 The occasion has now arrived to examine, and to test, that objective evidence. I commence at the more recent end of the proposed genealogical record, that is, with Billy Isaacs himself.
174 There is nothing in the objective record to connect Billy Isaacs with Brisbane or with any part of the claim area. As mentioned, he was born at Goomeri. At that time, that birthplace cannot have been the result of his parents' residence at what was later the Barambah Settlement. Indeed, as noted above, it is assumed that they worked on the Barambah and Kenilworth Stations. But we do not know who they were. There is a 1903 list of residents at the Barambah Mission (as it was at the time) on which appears the name "Isaac", together with the age of 24 years. It is possible that this was a reference to Billy Isaacs. There is a newspaper report that "W. Isaacs (aboriginal), Gympie" won the final heat of the Sheffield Handicap over 130 yards on 23 February 1904. There is a letter dated 26 June 1905 over the hand of the superintendent at the Barambah Settlement noting that "Billy Isaac" had been ordered off the settlement for being lazy and disobedient. A further letter dated 17 June 1905 contains the suggestion that Isaacs had gone to, and was working satisfactorily at, the Deebing Creek Settlement. There are entries in the inwards correspondence register of the Chief Protector of Aboriginals (the correspondence itself no longer being available) that suggest that Billy Isaacs was working at Dunwich in September/October 1907. The entry for 23 September 1907 reads: "That Billy Isaacs returning to Barambah".
175 A little more information about Billy Isaacs appears from such evidence as there is about his wife, Bella. In her affidavit affirmed on 21 July 2011, Ms Isaacs said that her mother was Bella whose maiden surname was "McLean or Kirk or Myers". Bella was born a Kirk, and married a man called McLean, by whom she had a daughter (Doris) and a son (David). It was under the name "Bella McLean" that an order was made for her removal from Brisbane to the Barambah Settlement on 7 April 1908. The relevant entry in the removal register notes that she had two children, and Ms Isaacs understood that the younger of them, David, was then newly-born. Notwithstanding the paternity of that baby, the register is also endorsed "Married Billy Isaacs". All this is rather confusing, not least because a lot seems to have been happening in about 1908. But it does explain how Bella was described as having had two maiden names apropos her marriage to Billy, Kirk and McLean. More of a mystery, and perhaps one that does not need to be resolved, is how Billy Isaacs came to believe that his wife's maiden surname was "Meyers". That he did so believe is evident from an entry to that effect on Connie Isaacs' birth certificate, in relation to which Billy was the informant.
176 The picture of Billy Isaacs which thus emerges is of someone who was born in Goomeri (to the north-east of what was later the Barambah Settlement), whose family worked both on the Barambah Station as such and on the Kenilworth Station in the Mary Valley, who happened to be in Brisbane as a boy of less than 10 years when accompanying some adults who had gone there for supplies, who was sent to a children's home in Nudgee for some unstated period, who may have been resident at the Barambah Mission in 1903, who was described as having been from Gympie in 1904, who was dispatched from the Barambah Settlement in 1905, who was returned to the settlement after working in Dunwich in 1907, who became the husband of a woman who was removed to the settlement in 1908, who worked in the areas where he grew up, including at the Barambah Station itself, in the Mary Valley and in various areas generally well to the north-west of the claim area, and who was present to testify to the birth of his daughter at the settlement in 1920.
177 Quite clearly, the movements and whereabouts of Billy Isaacs, to the extent that they are known, would not justify a conclusion that he had a relevant connection with the claim area. He spent some time in the claim area, but that arose from what appears to have been visitations rather than residence or any kind of permanent association. Any objective assessment would see him, by his whereabouts, his work and his relationships, as a man of the Gubbi Gubbi or Wakka Wakka rather than of the Turrbal. However, in her affidavit, Ms Isaacs said that she was told by her mother and by her step-father that the Isaacs family was "of Turrbal and Gubbi Gubbi ancestry". The Turrbal aspect of this was a reference to the woman who was claimed to be Billy Isaacs' mother, Bella, and thus to Billy himself.
178 There is no documentary evidence that Billy Isaacs' mother was someone called Bella. Ms Isaacs did not so state in either of her affidavits, notwithstanding her having made reference to many of her ancestors on her mother's side (a qualification I add in recognition of the sensitivity which is conventionally associated with the mention by name of the departed forebears of aborigines). But Ms Barambah did submit that Billy's mother was the Bella referred to in para 157 above, descended from the Duke of York.
179 Neither is there any documentary evidence that Billy Isaacs' father was a man called Jim, or Jimmy. I have mentioned the reference in Ms Isaacs' affidavit of 21 July 2011 to her paternal grandfather Daki Budtcha. Under cross-examination, Ms Barambah said that Daki Budtcha was "Jimmy Isaacs", or (in another answer) "Isaac Crow or Jimmy Isaac". In her own affidavit, Ms Isaacs did not identify her grandfather by name, that additional step being taken only by Ms Barambah.
180 When Ms Isaacs made her affidavits, she was an applicant in this proceeding, and her father's biological links to the Turrbal tribe of the 1830s and 1840s were an essential part of her case. At the time, she was represented by solicitors, who filed the affidavits. Had Ms Isaacs been told, by her mother or anyone else, that Jimmy Isaacs was her father's father, it is difficult to accept that she would have omitted to mention the fact. The conclusion I draw is that so much of the Turrbal case as relies on Billy Isaacs' parents being Jimmy and Bella Isaacs is not based on anything known or believed by his daughter Connie.
181 Ms Barambah herself was cross-examined on her understanding of her ancestry, in the course of which it became clear that her belief that Bella married Jimmy Isaacs derived from an interpretation of two written sources to which I shall refer below, in their proper chronological place. As will appear, I do not accept Ms Barambah's interpretation.
182 It is necessary now to turn to the documentary source material which is relevant to the biological ancestors of Billy Isaacs, and I propose to do so, to the extent possible, chronologically, commencing with the Duke of York. From the material to which I shall refer below, it is established that he had a daughter called Kitty. Her date of birth, and any other useful biographical details, are not known, but it is apparent that she was of child-bearing age by 1846 at the latest. She is a critical link in the Turrbal case on ancestry, which has it that Kitty had a baby by an Indian convict called George Brown. That baby was Lizzie, later referred to as "Saturday Lizzie". One of a number of questions raised by the Turrbal case, therefore, is whether Kitty did have a daughter by such a convict.
183 In this area of her case, Ms Barambah relied upon a passage in Petrie's Reminiscences about an incident involving the Moreton Bay aborigines when Petrie himself was still a boy. Dr Macdonald placed the incident in the late 1830s, although it must be said that she had no firm foundation for doing so. The relevant passage from Reminiscences (pp 25-27) is as follows:
Another good corrobboree was based on an incident which happened when my father was a boy. This time it had reference to a young gin - Kulkarawa - who belonged to the Brisbane or Turrbal tribe. A prisoner, a coloured man (an Indian), Shake Brown by name, stole a boat, and making off down the bay, took with him this Kulkarawa, without her people's immediate knowledge or consent. The boat was blown out to sea, and eventually the pair were washed ashore at Noosa Head - or as the blacks called it then, "Wantima," which meant "rising up," or "climbing up." They got ashore all right with just a few bruises, though the boat was broken to pieces. After rambling about for a couple of days, they came across a camp of blacks, and these latter took Kulkarawa from Shake Brown, saying that he must give her up, as she was a relative of theirs; but be might stop with them and they would feed him. So he stayed with them a long time, and the bon-yi season coming round, he accompanied them to the Blackall Range, joining in the feast there.
Before the bon-yi gathering had broken up, Shake Brown, grown tired of living the life of the blacks, left them to make his way to Brisbane. He got on to the old Northern Road going to Durundur, and followed it towards Brisbane. Coming at length to a creek which runs into the North Pine River, there, at the crossing, were a number of Turrbal blacks, who, recognising him, knew that he was the man who had stolen Kulkarawa. They asked what he had done with her, and be replied that the tribe of blacks he had fallen in with had taken her from him, and that she was now at the bon-yi gathering with them. But this, of course, did not satisfy the feeling for revenge that Shake Brown had roused when he took off the young gin from her people, and they turned on him and killed him, throwing his body into the bed of the creek at the crossing. A day or two later, men with a bullock dray going up to Durundur with rations, passing that way, came across Brown's body lying there, and they sent word to Brisbane, also christening the creek Brown's Creek, by which name it is known to this day.
Kulkarawa, living with the Noosa blacks, fretted for her people, and she made a song which ran as follows: "Oh, flour, where oh where are you now that I used to eat? Oh, oh, take me back to my mother, there to be happy, and roam no more." She evidently missed the flour which her own tribe got from the white people. The Noosa blacks made a dance to suit the song, and the corrobboree was considered a grand one.
Kulkarawa, after living with the Noosa blacks for about two years, was at length brought back to her own people. Father happened to be out at the Bowen Hills or "Barrambin" camp, with two or three black boys, looking for some cows, at the time she arrived. The strange blacks bringing her, both went and sat down at the mother's hut without speaking, and the parents of the young gin, and all her friends, started crying for joy when they saw her, keeping the cry going for some ten minutes in a chanting sort of fashion, even as they do when mourning for the dead. Then a regular talking match ensued, and Kulkarawa was told all that had happened during her absence, including the finding and murder of Shake Brown (or "Marri-dai-o" the blacks called him), on his way to Brisbane. Then she told her news, and Father heard afterwards again from her own lips of her experiences.
The young gin referred to was, according to the Turrbal case, the Duke of York's daughter, and "Shake Brown" was the "Marri-dai-o" by whom she had a daughter, Saturday Lizzie. Dr Macdonald formed the view that Saturday Lizzie was both conceived and born in the period during which Kulkarawa, or Kitty, was absent from the Brisbane tribe.
184 These propositions were put strongly in contention by the other parties. Although they accepted Petrie's account so far as it went, they submitted that it was speculation to say that Kulkarawa was the Duke of York's daughter and/or that Kulkarawa was the mother of the child later referred to as Saturday Lizzie. Those submissions must be accepted. As a boy, Petrie spent a lot of his time with the aborigines of the Moreton Bay area. As will be mentioned below, he interpreted when the Duke of York himself was a witness in a Police Magistrate's inquiry. Apart from the absence of anything positive from which it might be inferred that Kulkarawa was the Duke of York's daughter, it is, in my view, almost unthinkable that Petrie, who otherwise laid out his reminiscences in great detail - including references to the parents of the girl "crying for joy" on her return - would have omitted to mention that the kidnapped girl was the daughter of the chief of the tribe of which she was a member, had that indeed been the situation.
185 Neither is there any mention of Kulkarawa having a baby with her when she returned to her own tribe after having been with the "Noosa blacks for about two years". If Dr Macdonald is correct, the baby could not then have been more than about 18 months' old at the most. It is possible that she (the presumed baby) might have been left with the Noosa tribe when Kulkarawa returned to Brisbane, but, at best for the Turrbal case, it can only be said that there is no evidence whatever of such a baby having been born at the time claimed by Dr Macdonald.
186 Another issue concerns the identity of "Shake Brown", the Indian prisoner referred to by Petrie as the kidnapper of Kulkarawa. According to Dr Macdonald, this was a man called George Brown. His circumstances were related by Mamie O'Keefe, Librarian of the John Oxley Library in Brisbane, and of the Royal Historical Society of Queensland, in a paper read to a meeting of that society on 22 April 1976, as follows:
George Brown per Ocean 1 arrived on 24 January 1829. He ran in August 1830 for six weeks, in January 1831 for five months, again the following January for another five months, in September 1833 for a year and nine months and in the following January, after only being back for six months, he took off again for one year and three months. He was discharged free on 3 November 1838 and remained at Moreton Bay as a constable, being said to have considerable influence with the aborigines.
If this account is correct, Brown was at large in the periods August - September 1830, January - June 1831, January - June 1832, September 1833 - June 1835 and January 1836 - April 1837. Brown was back in custody in April 1837, the year that Petrie arrived at Moreton Bay as a six year-old.
187 Extracts from the Colonial Secretary's record relating to George Brown were placed into evidence by Ms Barambah. They included a list of the convicts transported on the Oceans 1 which arrived at Sydney on 30 January 1816, which list included Brown's name. That was not the occasion mentioned by O'Keefe in her paper to the historical society. The inconsistency is explained by the Colonial Secretary's record. Brown was convicted and transported twice: once on 25 March 1815 at the Lancaster Assizes, and once on 16 October 1828 at the Quarter Sessions at Windsor. O'Keefe refers only to Brown's circumstances following the second sentence.
188 On 20 June 1838, Brown petitioned the Governor to be permitted to remain in the colony at the expiration of his sentence. In that petition, he described himself as "a Native of Trichinopoly and a Man of Color [sic] [who] after his Arrival at Moreton Bay absconded and lived with the Aborigines for three years, and havess [sic] a Family by one of them [and] he is anxious to join them on the expiration of his Sentence." Brown claimed to have "great influence" over the natives and a "knowledge of their language" which would enable him to assist shipwrecked seamen and surveyors if he were allowed to remain. His petition secured the recommendation of the then commandant at Moreton Bay, a Maj Cotton. The petition was granted. On the expiration of Brown's sentence on 30 August 1838, he was permitted to remain at Moreton Bay.
189 The next aspect of the George Brown narrative was his appointment, on 27 March 1839, as a constable, on the recommendation of Maj Cotton. That recommendation, dated 15 March 1839, noted Brown's influence over the natives, and his assistance in the capture of bushrangers. It was suggested that Brown might be employed, in the first instance at least, as a "bush constable" with a small salary, shop clothing and rations, with the expectation of a later increase in salary upon the rendering of faithful service. While the Governor approved of the appointment, he did not indicate the amount of the initial salary that should be paid to Brown. That omission was followed up by Cotton in a letter of 3 July 1839, which repeated the writer's most favourable impressions of Brown. Save for what may be inferred from the above, there is no evidence of the timing or terms of Brown's actual appointment as a constable, assuming that such an appointment was made at all.
190 J G Steele, in Brisbane Town in Convict Days 1824-1842 (University of Queensland Press 1975), tells of an incident in about 1841 in which a party of aborigines entered a sheep-yard on George Mocatta's station and stole 70 sheep which, according to Steele, they "proceeded to barbecue … at their camp". Discovering this, Mocatta's superintendent, "Cocky" Rogers, rode with a group of armed men into the aborigines' camp. Brown was amongst the aborigines, and pleaded to be spared. He was spared, but was accused of inciting the aborigines to steal the sheep (and to kill some shepherds in a previous incident elsewhere). He was taken prisoner by Rogers and handed over to the authorities at Brisbane. According to Steele, Brown thereupon "set about trying to incriminate Rogers", accusing him of shooting the natives. Brown made these accusations in a report to the commandant of 13 January 1842, the result being an expedition to arrest Rogers. In the course of discussing this episode, Steele mentions work which Brown had done in the bush with the authorities in 1839 and 1840.
191 Although the reliable historical record is rather patchy, several conclusions may safely be drawn, if only on the balance of probabilities. First, the three years during which Brown was with the aborigines, and in which he had a family with one of them, were most probably the interrupted period September 1833 - April 1837 referred to by O'Keefe. Secondly, as mentioned above, there is no suggestion that Brown was at large at any time between April 1837 and the expiration of his sentence in August 1838. And thirdly, Brown was thereafter engaged in some capacity by the administration which appears to have given him scope to reside with the aborigines in their camps. Notwithstanding the ambiguous nature of that engagement, it seems that Brown was still regarded as a trusted source of assistance until at least early 1842.
192 Dr Macdonald placed the kidnapping of Kulkarawa in the mid to late 1830s. She did so, as it seems to me, without the benefit of having read the O'Keefe paper. She interpreted the "incident which happened when my father was a young boy", mentioned in the first sentence in the extract from Petrie's Reminiscences mentioned above, as a reference to the return of Kulkarawa to the Turrbal camp when Petrie was at "Barambin" with three black boys looking for cows. She said in her evidence that she believed that the story of Kulkarawa having taken by Brown was something that Petrie did not experience first-hand, but had been told by others - it had become "folklore" at the time. This enabled Dr Macdonald to place Kulkarawa's kidnapping within a period which predated Petrie's arrival at Moreton Bay, albeit that her return, about two years later, must have post-dated that event. Dr Macdonald also confirmed that it was during Brown's three-year absence with the aborigines that he had the liaison with Kulkarawa which produced the child later to be known as Saturday Lizzie.
193 Chronologically, it is possible that such a liaison occurred in the period before April 1837 when Brown went back into custody, and that it was only after Petrie's arrival that Kulkarawa herself returned from the Noosa tribe. The difficulty with that construction of events, however, is the inconsistency between Brown's recorded history subsequent to April 1837, to which I have referred above, and reports, from more than one source, that whoever it was that kidnapped Kulkarawa met his end at the hands of the natives before he returned, or as he was attempting to return, to the Moreton Bay area. Petrie's own account is clear enough in this respect. It derives some corroboration from an article which appeared in the Moreton Bay Courier on 6 February 1847, dealing editorially with what was said to be an imbalance in the authorities' reactions to crimes and atrocities committed by the aborigines and the settlers respectively. In the course of that article, the writer referred to "the case of Sheik Brown and a bullock-driver, who were killed by the natives within thirty miles of the settlement, and whose bones are now bleaching near the road to Messrs Joyner and Mason's station on the Pine River". That is consistent with Petrie's account of the death of "Shake" Brown at a creek which ran into the North Pine River, at the hands of members of the Turrbal tribe.
194 Dr Macdonald's response to the reported death of Kulkarawa's kidnapper was to say that it did not happen, and that Petrie was mistaken in this regard. However, while I would agree that George Brown did not die in the circumstances recounted by Petrie, the problem lies on the other side: there is no evidence at all that would sustain the inference that he was the kidnapper of, or had any kind of liaison with, Kulkarawa. What Dr Macdonald's evidence amounts to is no more than a surmise as to how events might have been.
195 If not George Brown, then, who was "Shake" Brown? According to O'Keefe, there were two convicts called Brown, both of Indian origin, and both frequent absconders. The other one was John Brown, colloquially known as "Sheik" (or some version of that word) Brown. He arrived at Moreton Bay on the Asia 5 on 2 June 1826. I have referred to an item in the Courier about him above. If O'Keefe's researches are to be accepted, this Brown was not only an absconder but something of what would today be described as a conman. The record of his comings and goings is not so complete as in the case of George Brown, but, to the extent placed before the court, O'Keefe's account has him back in custody in Moreton Bay (after adventures which appear to have taken him to the west coast of the continent) in May 1834.
196 What immediately stands out with respect to John Brown is the circumstance that his nickname is the phonetic equivalent of "Shake", the name given by Petrie to the Brown who kidnapped Kulkarawa. In one of her reports, Dr Macdonald said that there was "strong evidence that George Brown frequently used aliases, including 'Sheik'", but she referred only to an unpublished manuscript (not of her own) in this regard, which was not placed before the court. I am, accordingly, in no position to assess this evidence or the strength of it. There is no evidence of any contemporary confusion as between the two Browns and, until the evidence of Dr Macdonald in this case, no suggestion of any such confusion in the historical materials. O'Keefe's paper, which distinguishes between them uncontroversially, was the subject neither of the cross-examination of Dr Powell (who relied on the paper in one of her reports) by Ms Barambah, nor of adverse comment by Dr Macdonald.
197 At this point I should also mention an historical piece by Archibald Meston about Bribie Island published in The Brisbane Courier on 21 September 1891. In part, it read:
In Moreton Bay there were no less than five dialects: "Oondoo," at Bribie; "Coobenpil" at Lytton; "Balloongan," at Dunwich; "Noonuccal," at Amity; and "Gnoogee," on Moreton Island, the latter differing considerably from all the others. The negatives were: Cabbee, janderr, moonjine, yuggar, and goa. Intermediate tribes formed connecting links of communication. The Brisbane blacks could only talk to those of Dunwich through those of Lytton and St. Helena. The Bribie blacks were the interpreters between the Bay tribes and those of Wide Bay. To show how this system worked, I may mention the following incident: - In the year 1844, an ex-Brisbane convict, a Calcutta half-caste named John Brown, and three others started from Cleveland for Wide Bay in a whaleboat. When leaving they forcibly took away a couple of gins from Cleveland. The Cleveland blacks reported to Lytton, Lytton to Dunwich, Dunwich to Amity, Amity to Moreton Island, Moreton to Bribie, and Bribie to Wide Bay. When Brown arrived in Wide Bay he and all his party were instantly killed, the two gins being sent back unharmed to Cleveland, overland. This was, of course, described as a "brutal and unprovoked murder by the Wide Bay blacks!"
In one of Dr Powell's reports, she noted that this account differed from that of Petrie "in some details", but nonetheless considered that there were many parallels as between the two accounts, and that, most probably, they were speaking of the same event. For my own part, I consider that the differences are such as to make such a conclusion, even on the balance of probabilities, problematic. Whether Cleveland was in the area which belonged to what Petrie described as "the Brisbane or Turrbal tribe" is one difficulty. Whether Noosa (Petrie) may be equated with Wide Bay (Meston) is another difficulty. The number of young women involved is a third. The prompt sending of them back to their tribe at Cleveland, as described by Meston, by comparison with Kulkarawa's two-year sojourn with the Noosa tribe, as reported by Petrie, is a fourth. And Brown's own apparently harmonious stay with the Noosa tribe, as reported by Petrie, compared with his summary execution upon arrival at Wide Bay, as reported by Meston, is a fifth. A distinct advantage of being able to accept Dr Powell's evidence that Meston and Petrie were probably speaking of the same incident would be that the incident would then have a date: 1844. However, for the reasons I have given, I am not prepared to accept that evidence.
198 I would find that the Brown who kidnapped Kulkarawa was John, not George. There is nothing, either in Petrie or elsewhere, from which we might give a date to the kidnapping, but, from the report in the Courier of 6 February 1847 to which I have referred, it must have been before that date, most probably (from the tone of the report and the bleaching metaphor used) no less than, say, a year or so before then. On the other hand, the editorial writer in the Courier was complaining about the then current policy of the administration, and providing Sheik Brown's death as an example of double standards. The further back in time from the date of the report that one goes, the less persuasive would be the ring carried by such a complaint. In my view, the strong probabilities are that Sheik Brown met his end subsequent - probably some years subsequent - to 1840. It should also be borne in mind that the further back one goes in time with the return of Kulkarawa to her own tribe, the less likely it is that Petrie would have been occupied with a group of black boys looking for cows: Petrie did not celebrate his own tenth birthday until some time in 1841.
199 There is nothing in the evidence that would place Kulkarawa's kidnapping before April 1837. For reasons given above, I think the more likely possibility is that it occurred in the early 1840s. If so, that George Brown was the perpetrator must be regarded as highly improbable. The evidence that the perpetrator was John Brown is, in my view, both stronger and more consistent all round. He met his end on a creek running into the North Pine River as described by Petrie. Although not suggested as part of the Turrbal case, it is possible that, by then, Kulkarawa was either pregnant, or had had a child, by him. At the time of Brown's death, Kulkarawa was still with the aborigine tribe at Noosa. Some two years after her arrival (with Brown) at that tribe, she returned to the Brisbane tribe from which she had been taken. There is, however, no evidence that, or from which it may be inferred that, she had in fact had a child by John Brown or that she was in any way related to the Duke of York.
200 With respect to George Brown - upon whom the Turrbal application specifically relies - I would go further and make a positive finding on the probabilities that he was not the man who kidnapped Kulkarawa, and that his circumstances were irrelevant to the ancestry of Ms Isaacs.
201 The next aspect of the Turrbal case on ancestry which requires consideration is the submission made against that case that the "Kitty" later referred to, who was, apparently, the mother of Saturday Lizzie, could not have been the same Kitty as was the daughter of the Duke of York. The latter, it was submitted, died in the Duke's own camp in late 1846 or early 1847.
202 According to what appears to be a comprehensive report in The Moreton Bay Courier for 13 February 1847, the Attorney-General had ordered an inquisition into the alleged shooting of aborigines at York's Hollow (by common consent the location of the Duke of York's camp) on 20 December 1846. The inquisition was conducted by the Police Magistrate. What follows is taken from the evidence given to him by various witnesses, as reported in the Courier.
203 The incident had its genesis in an attempt by two police constables, Thomas Connor and Peter Murphy, to apprehend an aborigine called Jackey Jackey, who was wanted for murder. Connor had been told by an aborigine called Jackey that Jackey Jackey was at York's Hollow. At about 11 pm on 20 December, Connor and Murphy went there in company with Jackey and a prisoner attached to the Survey Department called Henry Grattan. According to Connor's account (which was corroborated by Murphy), there were 300-400 aborigines at the camp at the time. Jackey was sent into the camp to discover the whereabouts of Jackey Jackey, and found him lying under a tree by himself, a short distance from the other aborigines in the camp. Jackey was then given a rope with a running noose, with the object of securing Jackey Jackey, but the latter was roused and made off. Some shooting followed, which caused the aborigines in the camp to run off. It was not known whether Jackey Jackey was hit: according to Jackey's account, Jackey Jackey was not hit, and was seen "a little time after in the three-mile scrub".
204 In the course of his investigation of this incident, the Police Magistrate was told about the circumstances of the Duke of York's daughter, Kitty. Neither Connor nor Murphy mentioned her, but a number of the other witnesses did. I mention first the Assistant Surveyor, James Burnett. His evidence was third-hand. He said that he had been informed by a Mr Thornton that the Duke of York had told the Sub-Collector of Customs, WA Duncan, Esq, that his (the Duke's) daughter had been shot by white men, that she had three balls in her and that she was either dead or dying. Burnett told Thornton that he disbelieved it. Burnett enquired of aborigines working for him what was the matter with the Duke of York's daughter, and they told him that she was very ill from some complaint in the belly, giving Burnett to understand that the illness arose from some circumstance connected with her pregnancy.
205 In a letter published, at the behest of Duncan, in The Sydney Morning Herald on 23 February 1847, and appended to a version of the report of the inquisition by the Police Magistrate, Thornton emphatically denied that he had told Burnett that the Duke of York had told Duncan that his daughter had been shot by white men, and had three balls in her. Thornton said that "about two months back" (ie directly after the events in question) he had told Burnett what the Duke of York had reported to Duncan, namely, that "the woman in question was then either dying or dead in premature labour, caused by fright", which he (Thornton) had heard from Duncan "a few minutes previously". Thornton added that, although he might have alluded to a rumour then prevalent that the woman had been shot, he did not attribute such a statement to Duncan.
206 Returning to the inquisition as reported in The Moreton Bay Courier, I refer next to Duncan's own evidence before the Police Magistrate. He said that he had been approached by the Duke of York with the complaint that whites had fired at the aborigines in their camp, and shot two of them, including Jackey Jackey. He said that the Duke of York had related that his daughter "was taken in childbirth - picaniny tumbled down - and that she herself was very sick". Duncan sent his messenger with the Duke of York to the camp, and the former returned with confirmation of what the latter had said about his daughter. Duncan also mentioned this matter to the Rev Hanly, who went to the camp the following morning with a view to having Kitty taken to hospital, but the aborigines in the camp "refused to give her up". A day or two later, Duncan went to the Windmill to see the aborigines, and observed that a number of them were carrying wounds to the legs, which they said arose from contact with trees in running away from the white men in the night.
207 Another witness was a boatman attached to the Customs Department, James Macalister. He was, I infer, the messenger to whom Duncan referred. On the morning after the incident at the camp, he had spoken to Connor and Murphy about the matter. A few days later, the Duke of York came to his house, and complained to him about the burning (presumably by the constables) of the aborigines' weapons and equipment. He also said that Kitty was "bong". She had been frightened by the shots and had fallen down (as to which Macalister added "that was what I understood"). Duncan sent Macalister to the camp with the Duke of York. When he got there, Macalister "found Kitty lying down, and her mother sitting at her head". He asked if Kitty was "in the family way", and received a shake of the head by way of reply. This he took as an indication that "the pickaninny was dead". On his return from the camp, Duncan instructed Macalister to take the Duke of York to the Police Magistrate to let his complaint be known. This was done, but the Police Magistrate (according to Macalister) said that there was no dependence to be placed on what was said by the Duke of York, as he was so great a liar. Macalister also accompanied Hanly to the camp the next morning, and confirmed that the aborigines would not allow Kitty to be taken to hospital.
208 These versions of Kitty's circumstances in the days following the incident on 20 December 1846 need to be considered alongside those given by Jackey and by the Duke of York himself, each of whom also gave evidence to the Police Magistrate. Jackey said (and there is no reason to doubt) that Kitty had been in the camp when he tried to take Jackey Jackey. She was killed "seven days later" when hit with a waddie by an aborigine called Jemmy. It is not clear whether Jackey was a witness to the latter event - save for Jackey's own evidence, there is no suggestion that he was. He added that, after Kitty had been killed, her body was "put up in a tree with the pickaninny".
209 The Duke of York (who gave evidence through the interpretation of Thomas Petrie, then aged about 15 years) said that Kitty had run away from the camp at the sound of a gun, that she had been pursued by Jemmy who had hit her with a waddie, killing her, "out of some spite". Although that suggests approximate contemporaneity as between the incident at the camp and the death of Kitty, the Duke of York also said that Kitty was struck and killed "some time after the night in question". The Duke of York said that he saw Jemmy strike and kill Kitty. At the time, Kitty was "in the family way". After her death, her body was put in a tree.
210 These accounts of Kitty's circumstances have their inconsistencies, of course, but it must be recognised that the Police Magistrate's main concern was with the allegations of wrongdoing by the constables on the night of 20 December. It seems clear that Kitty was not killed on that occasion. A few days later, she was in the camp, alive but not well. The cause of her indisposition is a matter of uncertainty, but the evidence of Hanly and Macalister, who called upon Kitty within about 48 hours after the incident, provides most obvious support for the thesis that the panic of her flight from the shots fired by Connor and Murphy gave rise to complications with her pregnancy, which might have been interpreted as - and might in fact have amounted to - a miscarriage. Here it must be remembered that the flight occurred in the middle of the night, and that, as observed by Duncan, some of the men had been wounded in the legs as a result of contacts made by them in the course of it. Whether Kitty in fact miscarried on that occasion was never determined, since she refused to be taken to hospital.
211 If the accounts given by the Duke of York and Jackey are to be believed, Kitty's subsequent death had nothing to do with the events of 20 December; moreover, she was still pregnant at the time of her death. Even at this remove in point of time, there is cause to be sceptical about the accuracy of those accounts. This Jemmy was a notorious lawbreaker, for whose capture a reward had been offered: see Petrie, Reminiscences, pp 166-170. It would have been very convenient for Jackey and the Duke of York to invoke the spectre of a murderous act by Jemmy, if otherwise they were, for whatever reason, disposed to provide an explanation for the death of Kitty which did not involve the conduct of the police constables. However, the very fact of these aboriginal witnesses feeling obliged to devise a story about the circumstances in which Kitty met her end, if that is indeed the construction to be placed on their evidence, presupposes that she had died. Otherwise, it would have been a complete answer to the rumour circulating at the time that Kitty had been shot by the police to produce the lady herself before the magistrate. I cannot see any motive that the Duke of York would have had to tell the Police Magistrate that Kitty was dead if she were not so.
212 There seems little doubt but that Kitty was very unwell in the days following the fracas at York's Hollow. An apparently serious view was taken that she should be hospitalised. If there were other reliable evidence of Kitty being alive at a later stage, of course, one would hesitate before rejecting it on the ground that she must have died in December 1846 or thereabouts. There is, however, no such reliable evidence. In the circumstances, the likelihood is that the Duke of York's daughter Kitty did die in December 1846 or thereabouts.
213 For the Turrbal case on ancestry, it is essential that Kitty not have died at that time. That is not because her then death would have meant that her daughter Lizzie was never born: on the Turrbal case, Lizzie was born well before 1846. It is because the presence of Kitty as an actor in her own right much later in the nineteenth century is very much a part of that case. It is therefore, necessary next to consider how Ms Barambah traces her ancestry forward from Kitty, assuming the latter not to have met her end at the time that I think it likely that she did. This is done by a series of seemingly unconnected references in various published and unpublished sources.
214 Chronologically, one commences with the memoirs of Mary McConnel, Memories of Days Long Gone By. She and her husband David McConnel ran a station called Cressbrook, situated in the area of Queensland that now bears that name, and also had a property, and a residence, on the Brisbane River in the area now known as Bulimba. The following passage, taken from p 43 of that book, was controversial in ways to which I shall refer, and should be set out in full:
This will be a good time to make my remarks on the natives generally. They were divided into many tribes, each with its chief, chosen on account of his bravery. The men of one tribe chose their wives from the women of another tribe, and often only secured them by hard fighting. I do not know the number of the tribes (I do not think there were very many), that lived on the land that my husband took up and called Cressbrook, but he set himself at once to make friends with them, and they soon got to like and trust him. He never failed to do what he promised. I know that one or two of the men were treacherous, that they speared cattle, once an imported bull from England, but of course they had no idea of the value of the animal. When the tribe behaved badly my husband would not allow them to come up to the head station, nor give them presents, - a shirt, or red pocket-handkerchief, tobacco or a pipe; when they did no work they got no rations, but little was expected of them, for they loved wandering to the Bunya Mountains, when the nuts were ripe, or to a Corroboree, or a fight; but that was all quite natural. My little Harry as a baby was very fond of one woman, "Long Kitty"; she was very affectionate and liked to have charge of him, so I made her go to the river and bathe; I gave her a comb and a loose red gown, and she would come up very smart, with her hair parted - 'likit missus' - and ask for the baby. She would look proudly over the country and say, stretching out her arms, "All this 'yarmen' (land) belonging to me." It did seem hard to have it all taken from them, but it had to be. They cultivated nothing; they were of no use on it.
According to the Turrbal case, "Long Kitty" was the same person as Kitty the Duke of York's daughter, and the country to which she referred towards the end of the above passage was the Brisbane area.
215 On 18 April 1850, Mrs McConnel gave birth to a son whom she and her husband named James Henry. This was the baby referred to as "my little Harry" in the above passage. For Dr Macdonald, the birth of Harry - reported in the Moreton Bay Courier of 20 April 1850 - provided both a time and a place for the occasion upon which Long Kitty made her sweeping claim to land, as reported by Mrs McConnel. The time would have been the early 1850s, and so much may be accepted. The place, according to Dr Macdonald, was the McConnels' property on the Brisbane River. The Bulimba area was, apparently, then referred to as Toogoolawah, which was named in the Courier as the place where the baby Harry was born. From there Dr Macdonald supposes that Mrs McConnel and her baby would still have been at her Brisbane property when Long Kitty made the statement referred to. The river in which she is said to have bathed was the Brisbane River at Brisbane.
216 That there was an aboriginal woman called Kitty in the Bulimba area at about this time is, according to Dr Macdonald, corroborated by a piece (by an unidentified writer) in the Queenslander for 26 February 1910 which marked the occasion of the passing of the widow of a James Johnston who (according to the piece) "was for a time in the employment of Mr D C McConnel, and eventually secured a farm of his own at Bulimba …." The writer noted that "the blacks in the early days were very numerous but friendly, and were very useful in assisting." One of them, Jimmy Wogen, was a wood collector for the Johnston family, together with "old Kitty and Sally". Dr Macdonald infers that this was the same Kitty as referred to by Mrs McConnel in the passage extracted above.
217 That they lived in the Brisbane area in the early 1850s and were called "Kitty" are the only grounds upon which Dr Macdonald proposes, as she does, that the woman referred to by Mrs McConnel and the woman who collected wood for the Johnstons were one and the same and were, moreover, the Duke of York's daughter. In my view, the proposition rises no higher than a matter of surmise, and is not open as an inference from the grounds referred to. There is nothing in the evidence which would sustain a finding on the probabilities that there was only one aboriginal woman around Brisbane at that time who went by the name of Kitty.
218 There is, moreover, a more fundamental difficulty with Dr Macdonald's position with respect to Long Kitty. On any fair reading, in the passage which I have extracted above, Mrs McConnel was speaking of events which occurred at Cressbrook, not at Bulimba. In her oral evidence, Dr Macdonald accepted that, at least down to the clause "when they did no work they got no rations", Mrs McConnel was speaking of the natives at Cressbrook. When asked about the Bunya Mountains, Dr Macdonald said that Cressbrook was "quite close". But when it was put to her that Long Kitty was a woman from the tribe at Cressbrook being referred to, Dr Macdonald responded "I don't think it's necessary to link that", and proceeded to refer to the circumstances, mentioned above, from which she would infer that Kitty looked after Harry at Bulimba. I do not accept Dr Macdonald's interpretation of Mrs McConnel's description of these events. It is as clear as may be that Mrs McConnel was writing about events at Cressbrook, and that the land to which Long Kitty sweepingly referred was land at Cressbrook, not at Bulimba. The river in which Long Kitty bathed may well have been the Brisbane River, but the relevant section was nowhere near the claim area.
219 For the above reasons, had there been no evidence of the death of Kitty, the Duke of York's daughter, in 1846/47, I would nonetheless have remained unsatisfied that that Kitty was one and the same person as Long Kitty mentioned by Mrs McConnel.
220 The next step in the Turrbal argument is to locate the Kitty upon whom they rely (ie the Duke of York/Bulimba Kitty discussed above) at Kenilworth Station in the Mary Valley in the mid-1870s and subsequently. Dr Macdonald concludes that Kitty was at Kenilworth in 1875 because of the following entry in a diary for that year maintained at the station and reproduced, in part, in a publication to mark the centenary of Kenilworth in 1950: "16th August: Longshanks very much broken hearted after his wife Kitty running away from him." There is nothing in the evidence that would give context to this event. Both names - Kitty and Longshanks - are mentioned with reference to a later period at Kenilworth, but, aside from the name as such, there is nothing to link the Kitty who was at Bulimba with the Kitty who ran away from Longshanks at Kenilworth some 20 years later.
221 So far as I can see, the only reference in the evidence to the whereabouts of the 1875 Kitty (as I shall call the one who ran away from Longshanks) over those 20 years is in a passage in the report of Dr Fisher. He referred to sources (not put into evidence) which mentioned that a settler called Richard Westaway had observed "Kitty herself at his property of Maradan Downs (now Meridan Plains, west of Caloundra)". Because of the redactions, and because the sources were not tendered, it is not possible to discern the context in which this reference was made, or to assess the reliability of it.
222 The next evidence upon which the Turrbal case relies relates to the late 1890s and the first decade of the twentieth century. In his book Sunshine Coast Heritage, published in 1994, Stan Tutt sets out lengthy extracts from an account of the early days in the Mary Valley written by Bill Sims in 1971, Our Original Inhabitants as I Saw Them. Tutt commences by recounting the story of Sims' father, Richard Sims, who secured 320 acres, "a portion of Kenilworth station" in the early 1890s. After being destroyed by the floods of 1898, Richard Sims and six other settlers formed a syndicate for the production of cream, the business of which secured "satisfactory returns" for the next three years. Bill Sims was born in 1894, and, as a boy, spent time with the local aboriginal children of his generation. From what he says in Our Original Inhabitants, it is clear that he held the aborigines in high regard.
223 Speaking of the aborigines in the Mary Valley with respect to the period before about 1910 when most of them were taken to the Barambah Settlement, Sims said:
The oldest of the ones I knew was 'Old Kitty'. She claimed she was in Brisbane when the first buildings were erected at Humpy Bong which was thought to have been the city of Brisbane but was later moved up the river on account of the difficulty in finding moorings. I cannot vouch for the truth of this but Kitty cleared off into the scrub when the rest were taken away.
Lizzie was Kitty's daughter and her husband was Duncan. Bella was Lizzie's daughter and her husband Isaac at one time worked for the Fritz family.
It is Dr Macdonald's opinion that the "Old Kitty" referred to by Sims was one and the same woman as the 1875 Kitty and the "old Kitty" who worked with Sally collecting wood for the Johnstons at Bulimba, mentioned above. Although Sims could not vouch for the truth of Kitty's claim to have been present when the first buildings were erected at Humpy Bong (in 1824), if the claim is accepted at face value, she would have been old enough to have been collecting wood for the McConnels and might well have been in Brisbane at about that time. Although that would have made her about 90 in 1910 when, according to Sims, "the locals were taken away to Barambah Mission Station [sic - by then it would have been the Barambah Settlement]", she was not, it seems, too old then to have "cleared off into the scrub", as Sims related.
224 To this point in the Turrbal narrative, Sims' reference to the old woman called Kitty having claimed to be at Humpy Bong when the first buildings were erected there is the only, albeit slender, basis upon which to link Kitty the Duke of York's daughter with the Kitty who made that claim. Aside from the name, there is nothing to connect the Bulimba Kitty with the Mary Valley, and nothing to connect the 1875 Kitty with the claim area. Further, to the extent that the claim made by the Kitty referred to by Sims was to be understood as involving the proposition that she saw, and remembered that she saw, the first buildings being erected at Humpy Bong (the natural sense of what Sims wrote), there must be some doubt over either that claim or Ms Barambah's case that her Kitty was born in about 1820.
225 Taking all of the evidence and material to which I have referred to date into account, the Turrbal contention that Kitty, the Duke of York's daughter, was the same person as the Kitty to whom Sims referred can only be regarded as a very frail one. If the resolution of the Turrbal claim turned on that contention, I would be disposed to reject it. However, it is necessary now to turn to the remaining major component of the Turrbal ancestry case, namely, that Ms Isaacs' father Billy was a direct descendant of the Kitty referred to by Sims.
226 One of the runs in the Mary Valley was Mt Ubi Station, managed by James Hassall from 1898. His daughter Frances was four years old when their family arrived there in that year. Many years later, now Mrs Rowe, Frances was, it seems, guest speaker at a CWA meeting somewhere. A photocopy of what were said to be her speaking notes for that meeting was placed into evidence without objection. They tell of the early years at Mt Ubi Station. They contain a colourful description of an aboriginal woman called "Old Kitty". It seems that she enjoyed smoking a pipe, but would not always have a light. According to Mrs Rowe, when the men would not provide her with a match, Kitty "would coax by promising to do a corroboree. That was a kind of hula-hula, a great wobbling of her body and chanting". This account, like that of Sims referred to above, most likely referred to events of the first decade of the 1900s. To the extent that they both refer to an "Old Kitty" in the Kenilworth area at that time, there is an obvious consistency between them.
227 Such consistency appears also from a list of names which was, ostensibly at least, appended to Mrs Rowe's notes. The following is a scanned copy of the original of the list.
228 Subject to the reservations to which I shall turn in a moment, there is every reason to accept the authenticity of at least most of the names on Mrs Rowe's list. The names on the list corroborate what was said by Sims, and vice-versa. Sims refers to "Billy and Arthur Monkland", who were of an age with him. They are also referred to on Mrs Rowe's list (although the former is here "Willie"), bracketed with two who may have been their sisters, Doreen and Maryann, and put alongside the note: "Monkland Joe [and below that] Lucy". Sims refers to a "Matty Davie", who appears to have been very athletic, to his three sisters Maudie, Ethel and Mabel and to their parents Davey and Annie. They (except Mabel) are referred to as a group in Mrs Rowe's list (which gives their surname as "Davies"). Sims relates that, when Mabel was a baby, Annie "decided to change husbands" and married one Andrew Ball. The words "Annie Andrew" appear on Mrs Rowe's list. Sims mentions another two whom he describes as a "couple", namely, Darby and Polly. He says that they worked on Kenilworth station in 1875. The words "Darby & Nellie" appear on Mrs Rowe's list. There is nothing in either source which would resolve the question whether Darby's partner was Polly, Nellie, had been Polly but became Nellie, vice-versa, or someone else altogether.
229 Turning to the people more directly of interest, both Sims and Mrs Rowe refer to Kitty, Lizzie, Duncan and Isaac. What is to be made of the relevant entries is far from clear, and has become the subject of intense controversy. This issue is critical in the Turrbal case on Billy Isaacs' ancestry.
230 The Turrbal case is that the last two sentences in the extract from Sims set out in para 223 above are to be understood as follows. Kitty had a daughter called Lizzie. Lizzie had a husband called Duncan. Lizzie and Duncan had a daughter called Bella. Bella had a husband called Isaac (actually, Isaacs as a surname, an aspect to which I shall come presently). The Turrbal case is that the second and third lines of Mrs Rowe's list are to be understood as follows. The Duncan referred was Duncan Crow. He was Lizzie's husband and Kitty's son-in-law. The entry on the third line that reads "Jim Isaac" was a reference to Jim Isaacs, and the entry on the same line that reads "Bella Crow" was a reference to his wife, identified by her maiden surname.
231 As mentioned above, Ms Barambah said in her evidence that Jimmy Isaacs was also known as Isaac Crowe. Whether or not this was to lay claim to an "Isaac Crowe" who died on 19 March 1913 as part of the Turrbal history is now moot. But there was such a man, and a certified copy of his death certificate is in evidence. His widow was called Bella. The Turrbal contention was supported by Dr Macdonald both in her anthropological report of June 2010 and in her final report of November 2013. However, Isaac Crowe's death certificate gives 37 as his age in years at the time of his death, which would mean that he was born in about 1876. Billy Isaacs was born in about 1880, and could not have been the son of a man born in about 1876. But the death certificate also shows that Isaac Crowe was 39 years old at the time that he married Bella. Clearly one of the ages on the certificate was wrong. In her final report, Dr Macdonald took the position that the age of death was wrong because the 39 years was a mistaken reference to the length of time that Isaac was married to Bella. Under cross-examination, Ms Barambah said that Isaac Crowe, her great-grandfather, was born in 1857. She said: "I honestly believe that's my great-grandfather".
232 Material annexed to Dr Powell's supplementary report, however, provides strong support for a finding that Isaac Crowe was indeed aged 37 years at the time of his death in March 1913. There is an application, dated 11 March 1913, for his admission to the Diamantina Hospital for Chronic Diseases which records his age as 37 years. The application also gives 32 years as his age when he married Bella. This document was not put to Ms Barambah when she was under cross-examination, but it was put to Dr Macdonald, in the course of the anthropologists' concurrent evidence, by counsel for the State. By then, Dr Macdonald had read Dr Powell's supplementary report, and had reached the conclusion, based on the application for admission, that this Isaac Crowe could not be Billy Isaacs' father. She said:
Can I perhaps short cut this by saying that I've since seen that hospital admission record with it, and I have satisfied myself that Jimmy Crowe is not - sorry, Isaac Crowe is not Jimmy Isaac. I have come to the conclusion that they are two different people.
As will become apparent, however, the question is whether there ever was a person called Jimmy Isaacs.
233 Isaac Crowe's hospital admission application gave Kelly as his wife Bella's maiden surname. It is, therefore, established with a high degree of probability that there was a man called Isaac Crowe whose wife was Bella, nee Kelly, and who died at the age of 37 years in 1913. In Dr Macdonald's more recent view, however, there were two Bellas, and the Isaac Crowe who died in 1913 was not the Isaac who married Lizzie's daughter Bella. Dr Macdonald supported the contention of Ms Barambah that this Bella's maiden surname was Crowe (or Crow) because that was the surname of her father, Duncan.
234 At this point it is necessary to return to the list of names in Mrs Rowe's notes. It was a central part of the Turrbal evidentiary case on ancestry. Dr Macdonald used it as a basis for her conclusion that the "Duncan" referred to by Sims as Lizzie's husband was Duncan Crow, and that the "Isaac" referred to by Sims was the "Jim Isaac" seemingly mentioned by Mrs Rowe in her notes. Although it was his wife, Bella, who provided the ancestral link (via Kitty and Lizzie) from the Duke of York, it was the surname "Isaacs" which, it was said, grounded the inference that Billy Isaacs was their son. As the evidence emerged, however, it became clear that Dr Macdonald's (and Ms Barambah's) interpretation of Mrs Rowe's list was most probably wrong.
235 Although the list, as originally tendered, was part of the photocopy referred to in para 226 above, it transpired, when the original was later produced, that the list was on two small sheets pasted on to a piece of unlined A4 paper. The upper sheet, 147 mm in width x 119 mm in length, was a section of lined paper seemingly cut off at the bottom. This sheet went down to, and included, the line on which the entry "Annie Andrew" appears. It did not include the entries on the left, beneath and in line with the asterisk, which were editorial additions made by some person unknown at some unstated time. The lower sheet, 94 mm in width x 133 mm in length, was a piece of blank, heavier gauge, unlined paper. It commenced with the words 'Kitty - Saturday Duncan" and went down to, but not including, the note "Recorded by Frances Rowe [etc]". It did not include the notations to the left of the list - that in the box ("Hand writing [etc]") and what follows directly below. Having been photocopied for the purpose of the exhibit, the fact that these two sheets were not a single page was not then self-evident.
236 After the evidence in the case had closed, but before final submissions were made, I permitted the Yugara applicants to re-open their case to tender a report, dated 24 March 2014, by Trevor Clinton Joyce, a forensic document examiner. Mr Joyce was not required for cross-examination, and no question was raised as to the sufficiency of his qualifications and experience for the purposes of his report. The subject-matter of the report was the original of Mrs Rowe's list.
237 In his report, Mr Joyce stated that the pasted upper sheet of Mrs Rowe's list contained at least three writing inks, as follows:
Ink A, the following names:
Darby & Nellie
Duncan & Kitty
Isaac and Bella
Joe & … Monkland
Willie Arthur Maryann
Davy & Annie Davies
Mattie Maudie & Ethel
Mentone [?] Jack
Andrew Polly
Ink B, the following names:
On the first line, "Saturday"
At the start of the second line, "Crow"
At the end of the second line, "Lizzie & Bella", and above that, "Sat"
At the start of the third line, "Jim"
On the third line, an apparent overwriting of the first "a" in "Isaac"
At the end of the third line, "Crow Jackie"
On the fourth line, "Lucy"
At the end of the fifth line, "Doreen"
At the end of the seventh line (ie after "Ethel"), "(May)"
At the end of the ninth line, "Darby & Nellie"
The remainder of the sheet, ie "Peter … Andrew"
Ink C, the word "Piper" at the end of the fourth line.
Mr Joyce was unable to express a firm view about the ink used to write the word "Lizzie" in the top, right-hand, corner of the sheet, but said that "it appears that two inks have been used".
238 What is of foremost significance in the report of Mr Joyce is the circumstance that the word "Jim" was written in an ink different from that used to write the word "Isaac". Only slightly less significant is the circumstance that "Isaac" was one of a list of names written in Ink A, which list has a natural left alignment which does not include the words written in Ink B, "Crow" and "Jim". It is possible that, when she was originally writing this list, Mrs Rowe used different pens, but it seems clear that she did not write the full name "Jim Isaac" at the one time, with the words in their natural order. It is a strong, not merely a probable, inference that the word "Jim" was inserted subsequently.
239 It is here that I must refer to the evidence of Elvira White, Mrs Rowe's granddaughter. She obtained her grandmother's notes when going through the papers of her mother, Jennifer. She said that Jennifer had "a very distinctive handwriting" and, with respect to Mrs Rowe's list, that "that word 'Jim' just jumps out at me as being her handwriting". She said she was certain of it. This evidence was given without objection, and was not seriously questioned by any party. I would find, therefore not only that the word "Jim" was added subsequently to the names written in Ink A, but also that it was written not by Mrs Rowe, but by her daughter (who was, I would infer, born some years after the events to which the notes refer).
240 Mrs White was not so certain that the word "Crow", at the start of the second line of the list, was in her mother's hand. She thought it might be in her father's hand, but she also allowed for the possibility that it was her grandmother's writing. Mrs White did not have the advantage, which the court has, of the report of Mr Joyce. The fact that "Crow" and "Jim" were written in the same ink - as were a number of other entries which, by their placement on the sheet, have the appearance of being later additions - justifies the inference, which I draw, that "Crow" was written on the sheet by Jennifer at some point subsequent to her mother having made the original list using a pen with Ink A. I also infer that the entries written in Ink B were added by Jennifer as a result of conversations which she had had with, or knowledge which she had obtained from, her mother. There seems little doubt but that, to the extent that entries were made by Jennifer, her mother must have been the factual source of them.
241 The question remains: if the first two entries on the third line of this list were not a reference to a man called "Jim Isaac", what were they? To address this question, it is convenient next to turn to evidence that was given under cross-examination by Mr Serico. As mentioned earlier in these reasons, his mother Evelyn Serico was the daughter of Lucy Monkland, nee Crowe. That Lucy became a Monkland is consistent with Mrs Rowe's jottings, which mention "Joe and Lucy Monkland". Lucy's parents were Maggie and Jim Crowe, whose other children were two boys, named Isaac and Jim. Mr Serico explained that Isaac came to be named such because the station proprietor at Kenilworth was an Isaac Moore. He treated the aborigines who worked for him very well and was much respected by them.
242 If the evidence of Mr Serico is to be accepted - and no suggestion was made that it should not be - Isaac was the first name of a member of the Crowe family, whose siblings were Jim and Lucy. An alternative interpretation of the first two entries on the third line of Mrs Rowe's list is that "Jim" and "Isaac" were the brothers Crowe. We know (from Sims) that Isaac was Bella's husband, and here there is, on Mrs Rowe's list, the names "Isaac and Bella". Beneath that is a reference to "Joe and Lucy" who were, in all probability, Lucy Crowe and her husband Joe Monkland, as mentioned by Mr Serico. An interpretation of Mrs Rowe's notes that must be regarded as strongly viable, in my view, is that, initially (in Ink A), she wrote a list of the names of people associated with each other, eg by marriage, using their first names, and that, later, her daughter (in Ink B) added such extra details as were then known to her, including the name of the Crowe who had not previously been mentioned, Jim. Thus Jim's name was added on the second line because he was Isaac's brother.
243 To this point in my consideration of the matter, I consider it quite unlikely that Mrs Rowe was referring to a man with the name "Jim Isaac", the husband of Bella. I consider it more likely that, consistently with Sims, she was referring to the husband of Bella, but that the man concerned had "Isaac" as his first name. He was not called "Jim": his brother was.
244 At this point, I should return to Bella, whose circumstances I left at para 233 above. As mentioned, the Bella referred to by Sims was the daughter of Duncan and Lizzie.
245 Was Duncan's surname Crowe (or Crow)? There are two indications that would suggest an affirmative answer to this question. The first is the presence of the word "Crow" at the start of the second line in the uppermost section of of Mrs Rowe's list. As mentioned above, this word was inserted subsequently. What was meant by it? Without that word, the first couple would simply have read "Duncan and Kitty". This raises the possibility that Duncan was Kitty's husband, which, it must be said, is open on the way Sims expressed the penultimate sentence in his recollections set out in para 223 above: perhaps the "her" was a reference to Kitty, not Lizzie. No-one suggested that this sentence should be understood this way. For consistency with the way the final sentence was understood by all parties (that is, that Isaac and Bella were husband and wife), the penultimate sentence can only be read as a statement that Duncan was the husband of Lizzie. It does, however, have the somewhat odd consequence that Mrs Rowe, who otherwise seems to have listed couples, mentioned Duncan in conjunction with his mother-in-law. As mentioned above, someone, probably her daughter Jennifer, later added Duncan's wife and daughter on the same line. Subject to these confusions, I would accept that the word "Crow" at the start of the second line does provide some, though not particularly convincing, support for a finding that that was Duncan's surname.
246 The second indication is a record from the Gympie Cemetery Trust of the burial in 1907 of the body of one "Duncan Crow". This is not a death certificate, and no other details of the deceased are provided. Dr Macdonald said that it was the practice for aboriginals who desired to have their deceased relatives' bodies interred in a cemetery to go to Gympie for the purpose. There was, she said, every reason to believe that this Duncan Crow came from the areas around Gympie, and that the burial record proves at least that there was someone in those areas called Duncan Crow who might well have died in 1907. I accept that proposition so far as it goes, but it justifies nothing more than surmise that the deceased man referred to was Kitty's son-in-law.
247 As against these considerations, Dr Powell thought it no less likely that Duncan's surname was Kelly. We know that Isaac Crowe - the Isaac now eschewed by Dr Macdonald - died in 1913. He left a widow called Bella, whose maiden surname was Kelly and whom he had married in 1908, at Imbil. Queensland Government removal records for 1915 show that, at apparently the same time in 1915, a Lizzie Kelly and a Bella Crowe were removed from Imbil to the settlement at Taroom. Dr Powell's contention was that there is every likelihood that these women were Isaac's mother-in-law and widow: mother and daughter. That too is a matter of surmise, but the time, place and names make it, in my view, an attractive one. Moreover, it corresponds with the interpretation given to the available records by Dr Fisher, whose report was tendered by Ms Barambah:
In 1915 [redacted] Bella Crowe was transferred north from Imbil, one of the family bases in the Gympie district, to the Taroom Settlement (est. 1911), west of Maryborough. According to the official register, her mother Lizzie Kelly, formerly Mitchell (aka Saturday Lizzie) and Polly Carver were likewise removed as well as Jerry Carver and Frank Imbil.
On this view, the married surname of the Lizzie mentioned by Sims, and the maiden surname of her daughter Bella, was Kelly.
248 Also in evidence is a death certificate for one Alexander Sandow who died in May 1958 at the age of 60 years. He had been born in "Tiaro or Childers" to Tom Sandow and Bella Kelly. Dr Powell's view was that Bella Kelly "was most probably married first to Sandow and then to Isaac Crowe". Whether or not Alexander Sandow's mother was ever married to his father, the fact is that he was born in about 1898 and a Bella Kelly married Isaac Crowe in about 1908. The course of events proposed by Dr Powell is, therefore, viable, but I would not go so far as Dr Powell in describing it as most probable. Dr Macdonald accepted that this Bella was most probably the mother of Alexander Sandow, but she contended that the latter's birth at Tiaro or Childers made it improbable that the former was the same Bella as referred to by Sims and Mrs Rowe (who spoke of personalities in the Kenilworth / Ubi Station area). The evidence would not justify me in describing Dr Powell's thesis in this respect as improbable, but I would agree with Dr Macdonald to the extent that she contends that the prospect that the Bella presently of interest was originally the partner of Tom Sandow cannot be regarded as anything more than surmise.
249 But, on balance, the other evidence to which I have referred justifies a finding on the probabilities that Saturday Lizzie's married surname was Kelly, and that this was, therefore, the maiden surname of her daughter Bella. Here I refer particularly to the evidence of Dr Fisher, Ms Barambah's own witness. We know that the widow of Isaac Crowe, who died in 1913, was Bella, nee Kelly. The strong probabilities are that this couple were the same Isaac and Bella as were referred to by Sims, and as were mentioned in Ink A by Mrs Rowe. Billy Isaacs could not have been their son.
250 In the result, the position reached is that the court knows nothing of the parents of Billy Isaacs, or of either of them. Once the possibility of him having been the son of Isaac and Bella Crowe is dismissed, there is not even a hypothesis which might point to the identity of his parents. There is nothing which might link him to the Lizzie, or her mother Kitty, upon whom Ms Barambah relies. It is not as if we know, or might infer, that Billy's parents were connected to the claim area in some way other than through the claimed lineage discussed above, since all we know, objectively, is that Billy was born at Goomeri. Absent any knowledge of who these parents were, this limited information is quite unhelpful for the Turrbal case.
251 To the extent, therefore, that the Turrbal case on ancestry would have it that the old woman called Kitty who undoubtedly lived in the Mary Valley in the later years of the nineteenth century and the earlier years of the twentieth was the Duke of York's daughter, I would find that Billy Isaacs was not descended from her. For that reason alone, if for no other, to the extent that it is based on objective, historical, evidence, Ms Barambah's claim that her mother was descended from the Duke of York must be rejected.
252 But, as mentioned above, there are other reasons. First, it is not established that the Duke of York's daughter Kitty was one and the same as the Kulkarawa who was kidnapped by a convict called Brown. Secondly, there is an apparently reliable historical report of the death of Kitty in late 1846 or early 1847. Thirdly, if Kitty did not die then, and if it matters (and I do not think it does), it is not established that she was the same Kitty as the one who worked for the McConnels in the 1850s. Fourthly, again if it matters (and again I do not think it does), it is not established that this was the same Kitty as the 1875 Kitty who deserted Longshanks. And fifthly, if Kitty did not die in late 1846 or early 1847, it is not established that this was the same Kitty as was an old woman in the Mary Valley in the 1890s and the 1900s.
253 At base, the difficulty with Ms Isaacs' understanding that she was, in part at least, of Turrbal ancestry is that, from what is known objectively, her own father, an essential link in the ancestral chain, most probably did not have the ancestry required for the case to be viable. It is most unlikely that Billy Isaacs was descended from the Duke of York. There may have been an explanation for why the objective record is misleading, and for why Ms Isaacs' understanding should be preferred, but neither the evidence nor the submissions in the Turrbal case contains such an explanation. I am not prepared to put aside the objective evidence in favour of the less reliable, and generally more equivocal, oral history set out in the affidavits of Ms Isaacs, of her children and of her friend Nurdon Serico.
254 For the above reasons, I reject the Turrbal case on biological descent.