FINDINGS
18 There is no doubt that there were Aboriginal people in this Determination Area and the surrounding areas for a very long time before Sir Thomas Mitchell first recorded his impressions of this general area in 1846.
19 A map of Mitchell's 1846 expedition read with his diary suggests that he travelled through the previously uncharted claim area from the Warrego River to the east through to Cooper Creek on the northwest boundary of the claim area. In areas just to the east, Mitchell recorded the existence of an Aboriginal camp on an area cleared by burning off. Further to the west, Mitchell recorded another encampment near a waterhole and noted "a large net, used for taking emus" hung on a bush nearby. Still further west, possibly on the northern border of the claim area, there was evidence that people lived there as that term is ordinarily understood. There were well-beaten paths and large permanent huts. That the people there were part of a broader society and traded or interacted with other groupings from explored areas of the interior may be inferred from the fact that "[e]ven there, in the heart of the interior on a river utterly unheard of by white men, an iron tomahawk glittered on high in the hand of a chief having a very long handle to it."
20 The explorers Burke and Wills also passed through the country close to the claim area before meeting their deaths in 1861 at a place on Cooper Creek. From diaries of the expedition and the accounts of the search parties sent to find the members of that expedition, one of which led by Alfred Howitt found the survivor John King who had been cared for by local occupants, it is plain that Aboriginal people lived in the surrounds of the claim area.
21 Between 1861 and 1863, Vincent James Dowling, a squatter and Justice of the Peace who had established a cattle station at Bourke in the frontier-like western New South Wales, travelled north along the Paroo River and Bulloo River areas. His diaries showed that by 1863, other Europeans had established stations on creeks and waterholes between the Warrego and Cooper Rivers. He recorded the presence of Aboriginal people whom he used to obtain information about the country.
22 Settlement of areas which were most certainly within the present claim area occurred in the late 1860's with the first forays into the claim area by the Durack, Tully, Skehan and Costello families. Their story is made famous by the book "Kings in Grass Castles" by Mary Durack. In their first foray into the region in 1867, Michael Costello and the Duracks established a base on Mobel or Mobile Creek on the eastern boundary of the claim area. Upon seeing great flocks of birds heading north-east, Patsy Durack assumed that they were heading towards sources of permanent water and asked Aboriginal man Cobby of the Mardigan people, who had accompanied them as guide, if he knew about the country to the north east. Cobby's response, described by Mary Durack, shows that he knew the people there by the description "Buntamurra [Boonthamurra]" and that they were seemingly untouched by white incursion:
This [request] put the old man on his mettle. He knew about this country - everything. As ambassador of the Murrugon tribe he had often visited those carpet snake Boontamurra people who camped on the big Kyabra waterholes where there was fish and game all year round. He could take him all right. He has a mother-in-law and few other "little bit" relatives over there but they were wild people. You had to look out for them, keep your hand on your gun.
23 After travelling overland from Goulburn in NSW in 1868, Michael Costello and some of his sons and employees took up land at Kyabra, on Kyabra Creek, and Patrick Durack occupied land further upstream at Thylungra. Both places had permanent waterholes, and both were in the middle of Boonthamurra country.
24 The party then encountered, according to their Mardigan guide, Cobby, a "big mob Boontamurra close up" around "Thilling-gurra" (Thylungra) waterhole. It was then that the party met Kangaroo, one of the apical ancestors of the claim group. Some of the Boonthamurra there became the work force for Durack's first station established shortly thereafter. Kangaroo's son, Tippo Ray, appears in a photograph taken in 1945 with M P Durack and the relationship between the Duracks and the Boonthamurra continued into the third generation as the children and grandchildren of Kangaroo and others remained an integral part of the station workforce.
25 The Tully family, related to the Duracks by marriage, took up the lease on Ray Station in 1874. Durack descendant, Fleur Lehane, recalls the Boonthamurra travelling through Ray Station on their way to Thylungra, a tribal meeting place.
26 Boonthamurra people worked on the stations within the claim area until at least the late 1960s.
27 While the Durack's and Costello's recollections and memoirs lend themselves to a version of history that records the initial encounters with the Boonthamurra as essentially friendly, there are other accounts that demonstrate resistance by the Boonthamurra of encroachments into their territory. Like most of the frontier encounters, the truth lies somewhere in between. There can be no doubt that like much of the history of the settlement of Aboriginal Australia it was characterised by frontier violence.
28 In the result, the Boonthamurra negotiated with some autonomy a transition from the phase of frontier violence to employment and residence in the relatively safe havens of the stations. Underpinning this transition was the "central factor that it remained Boonthamurra country and people did not want to leave their country."
29 The Boonthamurra's resistance to European incursions and a form of negotiated presence on the stations within their traditional country suggests that the Boonthamurra were an organised group of people. Their continued presence in their traditional country made it possible to maintain important aspects of the normative system as it had existed before then. The Boonthamurra and other neighbouring groups travelled across and near the claim area to attend ceremonies and gatherings. Tully descendant, Fleur Lehane, recalled that people could go on "walkabout" when they wanted.
30 Although the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) led to a round up of many Aboriginal people around Queensland, the local station owners did not want their work force removed, so the Boonthamurra could remain on country in relatively significant numbers. However, history shows that drought and the consequences of over-grazing hit far western Queensland, so by 1901 opportunities for the use of Aboriginal labour declined, and the viability of camps of station Aborigines and their relatives and dependants was affected by available rations.
31 There is nevertheless satisfactory evidence of continued Boonthamurra occupation. In 1902, Meston visited Ray and Tenham Stations in the claim area and recorded 11 people living there. On Ray Station were Kangaroo's wife and one of his sons. All were "full-blooded and look[ed] well fed". A sample of employment records relating to the claim area shows that apical ancestor Dick Ray was employed at Congie station in 1937 and Bellalie in 1938; Mickey Ray was at Congie from 1952 to 1956; Tiger Ray was at Ray station in 1936, 1937 and 1938 and that Tiger Ray was still at Ray station in 1951 and 1952; Tippo Ray was at Ray station in 1936, 1937 and 1938; Rosie Dick was at Ray Station in 1937 and 1938; Pontius Pilot was at Congie station in 1937, 1938 and in 1951 and 1952; Jimmy Jones was at Yambutta station in 1939; Rosie Braddle was at Bellalie in 1938; and Witchery was employed at Bellalie station in 1940.
32 Indeed, the records in relation to apical ancestor Dick Ray show that:
(a) he was born in 1878 at Mt Margaret Station and died at Quilpie in 1948 and that he had a work history within the claim area;
(b) he was working at Bellalie Station - within the claim area - from 24 March 1940 to 31 December 1949;
(c) around 1926, he was employed at Ray Station by James Tully and went on "walkabout" for three months.
In short, he was born in the claim area only a decade after the Duracks first encountered the Boonthamurra and is recorded as having worked within the claim area in his forties, fifties and sixties.
33 As to possible references to his partner Millie, there is a report from Harold Meston dated 1902 regarding the reserve at Whitula but which also mentions the names and ages of the Aboriginal people then on Ray Station including a "Millie" aged 13 years and "Mommy" aged 90 years. The reference to both Millie and Mommy as being present on Ray Station together supports an inference that Millie was also Boonthamurra. Millie was then said to be aged 13 which would make 1889 her year of birth. Dick Ray was therefore only 10 years older than Millie and therefore he was a potential partner of Millie. The woman "Mommy" is quite conceivably "Mormy" one of the wives of Kangaroo. Kangaroo was one of the men who greeted the Duracks in 1868. If he held elder status, he may well have been in his 60s when he encountered the Duracks which would place his year of birth close to 1800. Mommy was said to be 90 in 1902 which would place her year of birth around 1812. Again, Mormy and Kangaroo were within an age range as potential partners. It is not unlikely that groups of Boonthamurra people would have lived or congregated together. It would have been natural for Boonthamurra people to remain together where it was possible for them to have done so.
34 In addition, no Aboriginal group lays claim to native title through either Dick Ray or Kangaroo, or to the claim area. As to the views of other Aboriginal groups, it is pertinent to observe at this point that the location of certain points on the southern boundaries of Boonthamurra country are recognised by knowledgeable senior Aboriginal men.
35 The book, "Heartbreak Corner" by Fleur Lehane, contains photographs of Rosie Braddle, the grandmother of applicants Mark Wallace and Barbara Olsen, and Pontius Pilot who is William Pilot's father, during their time on Ray Station.
36 One of the applicant group, Mark Wallace, who is Kangaroo's descendant, lived with and was taught by his father and mother, among other things, the boundaries of his country, hunting methods, and food sharing practices and prohibitions based on totemic identities.
37 It follows that the circumstances were apt to permit the transmission of laws and customs relating to land tenure, among other things, of the pre-contact period to the current generation of the Boonthamurra. It is to that aspect of the evidence which these reasons now turn.