Wyman on behalf of the Bidjara People v State of Queensland

Cases cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 Augustine v State of Western Australia [2013] FCA 338 Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Banjima People v Western Australia (No 2) (2013) 305 ALR 1 at [159] [160], [695]-[696]; [2013] FCA 868 Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566 CG (deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 Commonwealth v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 Commonwealth of Australia v Yarmirr (1999) 101 FCR 171; [1999] FCA 1668 De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318 Khanchitanon v R [2014] NSWCCA 204 Maviglia v Maviglia [1999] NSWCA 188 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244; [2001] FCA 45 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 Risk v Northern Territory of Australia [2006] FCA 404 Risk on behalf of the Larrakia People v Northern Territory (2007) 240 ALR 75; [2007] FCAFC 46 Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47 Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; (2010) 266 ALR 537 Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210 Sullivan v Department of Transport (1978) 1 ALD 383 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48 Ward on behalf of the Miriuwung and Gajerrong People v State of Western Australia (1998) 159 ALR 483; [1998] FCA 1478 Western Australia v Fazeldean (No 2) (2013) 211 FCR 150; [2013] FCAFC 58 Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 Wik Peoples v State of Queensland (1994) 49 FCR 1 Wilkes v Western Australia [2003] FCA 156 Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3 Wyman on behalf of the Bidjara People v Queensland [2013] FCA 366 Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229 Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8 Browne v Dunn (1893) 6 R 67 Maxwell v Keun [1928] 1 KB 645

Date of hearing: 3-6 November 2014

Place: Brisbane (delivered in Melbourne)

Division: GENERAL DIVISION

Category: Catchwords

Counsel for the Appellants in QUD857/2013: Mr SJ Keim SC, Mr LS Reidy

Solicitor for the Appellants in QUD857/2013: Creevey Russell Lawyers

Counsel for the Appellant in QUD130/2014: Mr VB Hughston SC, Mr J Waters, Ms T Jowett

Solicitor for the Appellant in QUD130/2014: Gilkerson Legal

Counsel for the State of Queensland: Ms H Bowskill QC, Mr A Preston

Solicitor for the State of Queensland: Crown Law

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 857 of 2013

BETWEEN: BRENDAN WYMAN, PATRICIA FRASER, HELEN COULAHAN, SHERYL LAWTON, KEELEN MAILMAN, ROBERT RAYMOND ROBINSON, FLOYD ROBINSON, RANDALL JOHNSON ON BEHALF OF THE BIDJARA PEOPLE

JUDGES: NORTH, BARKER AND WHITE JJ DATE OF ORDER: 13 August 2015 WHERE MADE: BRISBANE (DELIVERED IN MELBOURNE)

1. The appeal be dismissed.
2. There be no order as costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 130 of 2014

BETWEEN: CHARLES STAPLETON ON BEHALF OF THE BROWN RIVER PEOPLE

BRENDAN WYMAN AND OTHERS ON BEHALF OF THE BIDJARA PEOPLE

MARLENE LEISHA AND ANOTHER ON BEHALF OF THE KARINGBAL PEOPLE

PEABODY ENERGY AUSTRALIA PCI EXPLORATION PTY LIMITED

PASTORAL RESPONDENTS REPRESENTED BY THYNNE & MACARTNEY

BRIGIT ANNE PRICE, GAIL LORRAINE PRICE AND OWEN ARTHUR PRICE

CLEMENT ROBERT RICHARDSON AND ORIEL ROSE RICHARDSON

JUDGES: NORTH, BARKER AND WHITE JJ DATE OF ORDER: 13 August 2015 WHERE MADE: BRISBANE (DELIVERED IN MELBOURNE)

1. The appeal be dismissed.
2. There be no order as costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 857 of 2013

BETWEEN: BRENDAN WYMAN, PATRICIA FRASER, HELEN COULAHAN, SHERYL LAWTON, KEELEN MAILMAN, ROBERT RAYMOND ROBINSON, FLOYD ROBINSON, RANDALL JOHNSON ON BEHALF OF THE BIDJARA PEOPLE

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 130 of 2014

BETWEEN: CHARLES STAPLETON ON BEHALF OF THE BROWN RIVER PEOPLE

BRENDAN WYMAN AND OTHERS ON BEHALF OF THE BIDJARA PEOPLE

MARLENE LEISHA AND ANOTHER ON BEHALF OF THE KARINGBAL PEOPLE

PEABODY ENERGY AUSTRALIA PCI EXPLORATION PTY LIMITED

WILBANKS PECOS COUNTY PRODUCTION COMPANY Fifty First Respondent

PASTORAL RESPONDENTS REPRESENTED BY THYNNE & MACARTNEY

BRIGIT ANNE PRICE, GAIL LORRAINE PRICE AND OWEN ARTHUR PRICE

CLEMENT ROBERT RICHARDSON AND ORIEL ROSE RICHARDSON

JUDGES: NORTH, BARKER AND WHITE JJ DATE: 13 August 2015 PLACE: brisbane (delivered in MELBOURNE)

REASONS FOR JUDGMENT THE COURT: 1 This judgment concerns two appeals, one by the Bidjara people and the other by the Brown River people, to set aside the determination made by the primary judge under the Native Title Act 1993 (Cth) (NTA) that native title does not exist in the claim area. 2 The claim area, which may more conveniently be called the overlap area, includes the Carnarvon National Park and the Carnarvon Gorge in central Queensland, some 600kms north-west of Brisbane. The towns of Injune and Rolleston are nearby. The larger town of Roma and the coastal town of Gladstone are, respectively, to the south and east. 3 At trial, the primary judge had before her three claimant applications for determination of native title in respect of the overlap area. The first (QUD23/2006) was made by the Karingbal people, having been filed in January 2006, and was largely limited to the overlap area. The second (QUD216/2008) was that of the Bidjara people, lodged in July 2008, which related to a large area of land including the overlap area. The third (QUD245/2011) was that of the Brown River people, lodged in August 2011, which, like the Karingbal people's claim, largely coincided with the overlap area. The Karingbal people filed a further application (QUD310/2012) in June 2012, as did the Brown River people (QUD245/2011), to correct the omission of particular areas from their initial applications. 4 The Brown River claimants had, up until the time they lodged their claimant application in 2011, been members of the Karingbal claim group. However, following consideration of anthropological advice, which indicated that those members of the Karingbal claim group who were descended from claimed apical ancestor Jemima of Albinia, were not, for NTA purposes, Karingbal people, they filed their own claimant application. To that end, and to distinguish themselves from the members of the Karingbal claim group, they used the group name "Brown River people", the Brown River running through the overlap area. We note that in the primary judge's reasons and these reasons they are sometimes referred to as the Karingbal or Brown River/Karingbal people. 5 In July 2010, prior to the lodgement of the Brown River people's claim, the docket judge directed that the Bidjara and Karingbal claims were to be programmed for trial on a date to be fixed in 2011. In August 2010, 10 October 2011 was set as the trial date in relation to the overlap area. 6 In June and July 2011, however, further programming orders were made which ultimately saw the October 2011 hearing date vacated. 7 In August 2011, the Brown River people's claim was lodged, as noted above, largely in respect of the overlap area. 8 In September 2011, a trial date of 27 August 2012 was fixed for the hearing of the two initial claims and soon after, orders were made joining the Brown River people as respondents to those proceedings. A trial date of 27 August 2012 was then confirmed for the hearing of the three claims, brought forward to 6 August 2012 in December 2011. 9 In July 2012, however, following the filing of further Karingbal and Brown River people claimant applications, the August 2012 trial date was vacated, although soon afterwards programming orders were made for the trial to commence on 4 March 2013, on country, that is to say, within the overlap area. 10 In October 2012, that trial date also had to be vacated because of concerns raised by the Court about the practicability of commencing an on country trial in March, having regard to likely wet weather conditions. 11 In February 2013, the primary judge assumed judicial case management of the proceeding and in March made orders in relation to the trial, which was then programmed to commence with an opening in Brisbane on 22 April 2013, and the evidence of indigenous witnesses to be taken on country thereafter, in the week commencing 29 April 2013. 12 On 22 April 2013 the trial commenced before the primary judge in Brisbane. An application was then made on behalf of the Bidjara people, by Mr Robert Raymond Robinson, one of the claimants and their lay advocate, for the trial to be adjourned on the basis that the lawyer previously instructed to act for them had just ceased to act. After hearing submissions her Honour declined to adjourn the trial. 13 The trial then proceeded in Brisbane on 23 and 24 April 2013. On 29 April 2013, the parties attended at Carnarvon Gorge for the taking of on country evidence in accordance with the programming orders. However, immediately prior to this happening, the Court was advised that Raymond Robinson had been taken ill. As a result, on 29 April 2013, at Carnarvon Gorge, her Honour decided not to take any evidence on country and adjourned the hearing until 6 May 2013 in Brisbane. The opportunity was taken, however, for the Court to view sites in the vicinity of the Carnarvon Gorge before adjourning to Brisbane. 14 The trial then resumed in Brisbane on 6-10 and 13-16 May 2013, and then again on 28-29 August 2013, during which indigenous witnesses for the various claimants gave direct evidence, followed by the expert anthropological testimony of Professor Marcia Langton (called by the Bidjara people), Dr Suzi Hutchings (called by the Brown River people), Dr Lee Sackett (called by the Karingbal descendants of Jemima) and Professor Peter Sutton (called by the State of Queensland). 15 Oral closing submissions were completed on 14 November 2013. 16 On 6 December 2013 judgment was delivered in the proceeding, with the result that none of the three claims succeeded. See Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229. 17 In short, the Karingbal people's claim failed because her Honour found that the descendants of Jemima, who made up the claim group in that proceeding, could not establish that Jemima was a Karingbal person at sovereignty. 18 While her Honour found that both Bidjara people and Karingbal people, properly described, had native title rights and interests in the overlap area at sovereignty, her Honour found that neither the Bidjara nor the Brown River people (as Karingbal people) had established that they had maintained a relevant connection with the claim by traditional law and custom, from generation to generation, since sovereignty, as required by the NTA. 19 As a result, her Honour not only dismissed the three claimant applications but also, on 3 February 2014, made a determination that native title does not exist in the overlap area. See Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8. 20 It is from that determination that the Bidjara people and Brown River people now appeal. The Karingbal people - the descendants of Jemima - lodged an appeal (on each of QUD23/2006 and QUD310/2012) and filed submissions but subsequently discontinued their appeal prior to the hearing. 21 The Bidjara people appeal on the grounds that the primary judge erred: (1) in finding that they had not maintained their connection with the claim area by traditional law and custom, from generation to generation, since sovereignty; (2) by failing to accord them procedural fairness by refusing the adjournment application made by Mr Robinson at the commencement of the trial in Brisbane on 22 April 2013; and (3) by not hearing evidence from the Bidjara indigenous witnesses on country in accordance with the initial programming orders. 22 The Brown River people appeal on the grounds that her Honour erred: (1) in failing to find that the relevant connection was maintained by traditional law and custom, from generation to generation, since sovereignty; (2) in not hearing evidence from the Brown River claimants' indigenous witnesses on country; (3) in giving greater weight to the oral evidence of the Brown River witnesses, and discounting the weight of or doubting witnesses' written statements in circumstances where the witnesses were not given notice of her Honour's reservations; (4) further, in finding that large elements of revival and recreation have occurred within the claim group since the maintaining of the claim in circumstances where those allegations were not put to Brown River witnesses; (5) in declining to admit into evidence the affidavit of Margaret Louise Hickson; and (6) by making a determination that native title does not exist in the overlap area in circumstances where the only applications for the determination of native title before the Court were claimant applications. 23 The State opposes each of the appeals and contends her Honour did not err as alleged or at all. 24 In these circumstances, the issues raised by these appeals are: (1) whether the primary judge erred in refusing the application of the Bidjara people for an adjournment of the trial on 22 April 2013; (2) whether the primary judge erred in failing to take the evidence of the Bidjara indigenous witnesses and/or the Brown River indigenous witnesses on country; (3) whether the primary judge erred in fact or in law in finding that the Bidjara people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty; (4) whether the primary judge erred in fact or in law in finding that the Brown River people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty; (5) whether the primary judge erred in making certain findings about the Brown River indigenous witnesses' written statements, and about the revival of laws and customs from the commencement of the native title claim, without putting these findings to the Brown River witnesses; (6) whether the primary judge erred in declining to admit into evidence Ms Hickson's affidavit in the Brown River claim; and (7) whether the primary judge erred in making a determination that native title does not exist.

Did the primary judge err in refusing the application of the bidjara people for an adjournment of the trial on 22 april 2013? 25 The trial was listed to commence on Monday, 22 April 2013. Four weeks were set aside. 26 At the commencement of the trial, the Bidjara people sought the vacation of the hearing because, as Raymond Robinson said: [A]s it stands, your Honour, we have no legal representation. We have no money and we have no files. Mr Robinson went on to explain that "we've had a dispute with Mr Hauff, who has withdrawn from the matter and we need an adjournment to get our money off him and to get other legal representation". Mr Hauff is the principal of Trevor Hauff Lawyers (THL) who until 18 April 2013 had been the solicitors on the record for the Bidjara people. 27 The adjournment of the hearing was opposed by the Brown River people and the State. The Karingbal people neither consented to, nor opposed, the adjournment. 28 The primary judge refused an adjournment of the trial altogether, although she deferred the commencement of the trial to the following day. The Bidjara people contend that her Honour thereby denied them procedural fairness. Ground 2(a) of their amended notice of appeal alleges: The learned primary judge erred by failing to accord the appellant procedural fairness by: (a) Refusing the appellants' application for an adjournment or otherwise allowing the appellant further time to prepare and present evidence in circumstances where the appellant was unrepresented, did not have funds and was unable to properly instruct an anthropologist and where the anthropologist qualified her evidence by stating that, due to limited resources available to [the] Bidjara, she had been unable to complete all the necessary investigations; 29 The anthropologist to whom this ground referred was Professor Langton. She said that she had been "extremely disadvantaged in this case", although it is apparent that the disadvantage of which she spoke was attributable to the impact of the Bidjara people's limited pre-trial funding on her preparation and not the refusal of the adjournment. 30 The Bidjara people had previously had legal representation. Their original claim in 2008 was filed by the Principal Legal Officer of Queensland South Native Title Service Ltd (QSNTS). The Bidjara people continued to be represented by QSNTS until at least 2010. At different times in 2011, the Bidjara people were represented by the legal firms of RFG Finlayson and Associates and Rajesh Gopal Solicitors. THL commenced acting for the Bidjara people in early 2012 and, as indicated, continued to do so until 18 April 2013, four days before the trial was to commence. On that day, THL filed a notice of ceasing to act in relation to all of the matters involving the Bidjara people. 31 The circumstances in which the instructions of THL were terminated are not altogether clear. According to the oral submissions of Mr Robinson to the judge, the firm held $225,000 in its trust account paid by Xstrata Ltd, being the consideration under an ILUA. By letter dated 10 April 2013 addressed to THL, the "Bidjara native title applicant groups/Bidjara endorsed parties" instructed that firm to transfer the whole of the $225,000 immediately to Bidjara Traditional Owners Ltd. The letter asserted that the money had been paid to THL by mistake and continued: In terms of the current and future Federal Court proceedings involving Bidjara and its native title claims process, Bidjara is yet to decide who they will engage as their legal representatives. When this decision is made, you will be informed accordingly. Bidjara has directed that Mr Ray Robinson, CEO Bidjara Traditional Owners Ltd, and a Bidjara native title applicant, has responsibility to act on behalf of Bidjara in this matter. You would understand that this matter needs to be settled as expeditiously as possible and under these circumstances your immediate advice on receipt of this correspondence that you have transferred the amount for $225,000 to Bidjara Traditional Owners Ltd is appreciated. The letter had the signatures of 11 persons some of whom had included a date against their signatures in an apparent indication of the date on which they signed the letter. The latest of the signatures is 15 April 2013 and it is possible that the letter was not sent to THL until that date. 32 The content of the letter suggested that the instructions of THL had been terminated by the Bidjara people, either expressly or by the direction that the firm give up the funding it was holding to secure its costs of representing the Bidjara people and retaining counsel. 33 In any event, Raymond Robinson announced at the commencement of the hearing on 22 April 2013 "I represent the Bidjara people your Honour". As alluded to above, Mr Robinson is not an admitted legal practitioner and is the Bidjara people's lay advocate. He then made the application for the adjournment to which we referred earlier. 34 In support of the application, Mr Robinson tendered the letter of 10 April 2013 referred to above and a letter of 15 April 2013 from Creevey Russell Lawyers to Mr Hauff. As this was not included in the appeal books, this Court is not aware of its contents. It was not suggested that it is of present relevance. 35 In his oral submissions, Mr Robinson indicated that the Bidjara people had not been able to obtain funding for legal representation from QSNTS or from the Department of Family and Community Services, Housing and Indigenous Affairs. He also said that a dispute had arisen between the Bidjara people and THL about the monies held in that firm's trust account in the course of which Mr Hauff told Mr Robinson that he would withdraw. 36 The primary judge refused the adjournment, giving ex tempore reasons, the transcript of which extends over five pages. Her Honour referred to evidence that a lack of funding for the Bidjara people was not a new development as, from at least mid-2011, the Bidjara people had indicated their intention to proceed with their application despite having no formal funding. Further, despite having no funding, the Bidjara people had made eight interlocutory applications including several seeking the striking out of the claims of others. In addition, the solicitor for the Brown River people had deposed to receiving on 18 April 2013 an email from Mr Hauff in which Mr Hauff "indicated that his retainer had been terminated", with the implication that it was the Bidjara people who had terminated THL's instructions, rather than vice versa. Her Honour noted that the matter had been fixed for hearing for some time; that the Court and the parties had invested substantial time and costs in being ready to proceed; that there was no adequate explanation for the Bidjara people being in the position announced by Mr Robinson; that the claims had been on foot for a long time, and that the Court had on previous occasions vacated hearing dates in order, amongst other things, to accommodate the convenience of the Bidjara people. Her Honour concluded: It would be … a great injustice to the Brown River People, to the Karingbal people and to the State of Queensland if the matter were to be vacated on the basis of such a scant evidentiary foundation as has been provided … in support of the application by the Bidjara people. 37 Shortly afterwards, the primary judge allowed Mr Robinson to renew his application so as to present evidence of a text message transcript of a voice mail message from Mr Hauff which was said to indicate that it was Mr Hauff who had determined to cease to act for the Bidjara people rather than the Bidjara people terminating his retainer. The message, as recorded by the judge on the transcript, read as follows: ? Trevor, hi. Look, I just got a - sugar. I decided to pull the pin on that so that if you get … this message was provided by Telstra at no charge to you. The message indicated that it had been sent on 17 April 2013. 38 Understandably, the primary judge regarded this message as ambiguous. It was just as consistent with Mr Hauff indicating that he was not prepared to proceed given the withdrawal of the funding provided to him in respect of the costs of the trial. The judge went on to say that, even if it was Mr Hauff who decided that he would no longer act for the Bidjara people, the prejudice to the other parties outweighed the prejudice to the Bidjara people, especially as the Court was not provided with any indication as to when the matter could again be listed for hearing. Her Honour confirmed the refusal of the adjournment. 39 Later her Honour granted leave to Mr Robinson, pursuant to s 85 of the NTA, to represent the Bidjara people in the proceedings. Insofar as Mr Robinson was himself a claimant, he did not need that leave but the grant of leave recognised that he could represent all the Bidjara claimants. The primary judge also granted leave to a Mr McLeod (a non-lawyer) to represent the Karingbal claimants. 40 The refusal to grant the adjournment was a pre-trial decision, but it is open to the Bidjara people to make it a ground of appeal against the final judgment as it may have affected the final result: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6]; [2002] HCA 22 (Gaudron, McHugh and Hayne JJ). However, appellate courts do not readily disturb decisions of trial judges on adjournment applications: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200 (Kirby P) and 206 (Priestley J). 41 Although the Bidjara people's ground of appeal relating to the refusal of an adjournment asserted a denial of procedural fairness, a number of Counsel's submissions were directed more to review of the discretionary decision involved. This engaged the principles stated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ) relating to appellate review of discretionary decisions. As is well known, it is not enough that the judges of the appellate court consider that, had they been in the position of the trial judge, they would have taken a different course: It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 42 Counsel submitted that the judge had failed to take into account the circumstance that the Bidjara people were on 22 April in a position of a self-represented litigant, the volume of material to be marshalled and absorbed by Mr Robinson at short notice, the legal and evidential complexity of the case, the circumstance that in addition to being self-represented, both the Bidjara people generally and Mr Robinson had a disadvantaged background, the rights and interests in issue in the litigation including the profound effects which the judge's decision in the trial would have on the rights of the Bidjara people, the purposes of the NTA, the circumstance that Mr Robinson was appearing for an applicant group and not just for himself, and the desirability of Mr Robinson obtaining some legal advice about the issues in the case and the manner of its presentation before the case commenced. Counsel submitted that the judge had focused unduly on the prejudice to the other parties which an adjournment would cause. 43 The relevant principles concerning procedural fairness are not in issue. They require that a litigant be given a reasonable opportunity to present its case and to answer the opposing case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; [2002] HCA 11 (Gaudron and Gummow JJ). A refusal of an adjournment can constitute a failure to give a litigant such an opportunity: Sullivan v Department of Transport (1978) 1 ALD 383 at 403 (Deane J). 44 In Sali v SPC Ltd (1993) 116 ALR 625 at 628-629; [1993] HCA 47, Brennan, Deane and McHugh JJ referred with approval to the decision of the Court of Appeal in England in Maxwell v Keun [1928] 1 KB 645 and held: [A]lthough an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action. (Citations omitted.) To similar effect, the minority in Sali at 635 referred to Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566 at 569 in which Asprey JA said: An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party. 45 The majority in Sali went on to note, however, that the propositions in Maxwell v Keun had been formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become. 46 The Bidjara people's focus on the prejudice to themselves by the refusal of the adjournment failed to have regard to the other considerations bearing upon the exercise of the primary judge's discretion. As French CJ observed in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]; [2009] HCA 27: In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. See also the observations of the plurality to similar effect at [93], [95] and [100]. 47 In this respect, the submissions of the Bidjara people did not refer to many significant matters bearing on the primary judge's decision concerning adjournment. First, the Bidjara people had had extended notice of the trial date. The orders of Reeves J made on 8 August 2012 contemplated the trial commencing on 4 March but this was revised to 22 April 2013 on 30 October 2012. The Court indicated that four weeks were set aside for the trial. Accordingly, the Bidjara people had had more than adequate notice of the trial, just under six months. It was incumbent on the Bidjara people to ready themselves for that trial, including by securing legal representation, if that was their wish. It was obvious that by April 2013, both the Court and the parties had allocated considerable resources and energy to the anticipated trial. 48 Secondly, the Court had vacated previous trial dates. The trial had originally been listed to commence on 10 October 2011 and, later, on 31 October 2011, 6 August 2012 and 4 March 2013. There is a limit on the extent to which the Court and other parties can be expected to be repeatedly readying themselves for a trial. It is fair to note, however, that there was no suggestion that the Bidjara people had been responsible for the vacation of the earlier trial dates, with the exception of the hearing scheduled on 6 August 2012. That hearing was vacated on the joint application of the Bidjara people and the Brown River people because of an extension to the overlap area occasioned by their late realisation that the areas to which their respective applications related did not include all the areas for which each claimed native title. 49 Thirdly, the matter had been the subject of detailed case management and trial programming orders. The Bidjara people had of course participated in the trial management hearings and were aware of the arrangements which the Court had made for the conduct of the trial. It is reasonable to suppose that they also had an understanding of the arrangements which the other parties had made to ready themselves for trial. 50 The Bidjara people had not complied with a number of the case management orders. At a directions hearing on 8 August 2012, the docket judge, Reeves J had fixed the dates by which the parties were to file all of the statements of their lay evidence and all of the reports of their experts. In the case of the Bidjara people, that date was 19 October 2012. The Bidjara people did not comply with that direction and, on 30 October 2012, Reeves J extended the time for compliance to 7 December 2012. When making the order for extension, Reeves J also ordered: Should a party fail to comply with the precise terms of any of these trial programming orders in relation to any witness, whether an expert witness or a lay witness, that party will not be able to call that person as a witness or rely upon his or her evidence at the trial of these proceedings. Despite the clear terms of this order and the context in which it was made, the Bidjara people were late in serving their statements, and the statements served contained large amounts of material which had previously been withdrawn in response to objection. The Bidjara people then sought a further extension of time but this was refused by the primary judge on 25 March 2013. At the same time, the judge made other orders relating to the evidence which the Bidjara people could lead at trial which seemed to address the prejudice which the Bidjara people would otherwise suffer. Despite that, the Bidjara people applied for leave to appeal against the judge's orders. That leave was refused: Wyman on behalf of the Bidjara People v Queensland [2013] FCA 366. 51 Fourthly, the evidence which the Bidjara people themselves provided to the primary judge suggested that they themselves had been responsible for THL ceasing to act for them. This was in addition to the material provided by Brown River people's solicitor which also suggested that the retainer of THL had been terminated by the Bidjara people. Further still, the judge was entitled, given the evidence she had received and the ordinary expectations of professional conduct, to proceed on the basis that THL would not have declined to act further in the matter. Rule 13.1 of the Australian Solicitors Conduct Rules 2012 provides: 13.1 A solicitor with designated responsibility for a client's matter must ensure completion of the legal services for that matter UNLESS: 13.1.1 The client has otherwise agreed; 13.1.2 The law practice is discharged from the engagement by the client; 13.1.3 The law practice terminates the engagement for just cause and on reasonable notice; or 13.1.4 The engagement comes to an end by operation of law. Rule 13.1.3 is pertinent presently. THL could have terminated the engagement only for just cause and on reasonable notice. As a termination by THL on 18 April 2013 of a retainer for a four week trial to commence on 22 April 2013 could not be regarded as reasonable notice, it is not readily to be supposed that THL would have conducted themselves in this manner. The letter of 10 April 2013 and, to a lesser extent, Mr Hauff's communication to the solicitor for the Brown River people indicate that it was the Bidjara who terminated the engagement. Accordingly, this does not appear to have been the a case of a client being left "in the lurch" by a solicitor. 52 It is pertinent that the Bidjara people did not seek to adduce any further evidence on the appeal relating to the circumstances in which the instructions of THL had been terminated to contradict this view of the evidence which was before the primary judge. 53 It is to be expected that courts will give less significance to a disability on which a party relies when seeking an adjournment which the party's own voluntary conduct has brought about. Parties who are minded to terminate the retainer of their legal representatives shortly before a trial should be aware that the court is unlikely to consider favourably an application for an adjournment on the ground that the party is unrepresented. Courts should be particularly alert not to allow a party to "force" an adjournment by the late termination of instructions to their legal representatives. 54 Fifthly, an affidavit from the Brown River people's solicitor prepared in support of the Brown River people's opposition to an adjournment indicated that the Bidjara people's assertion of a lack of funding was not a recent development. On the contrary, the Court had first been informed of that circumstance on 3 May 2011. In addition, the Court had also been informed of the Bidjara people's lack of funding at directions hearings on 3 June 2011, 11 July 2011, 9 September 2011, 8 December 2011 and 10 July 2012. This was significant in two ways. First, the primary judge was entitled to proceed on the basis that the Bidjara people had had more than adequate opportunity in which to secure funding for the litigation. Secondly, there was little to indicate that the difficulties which the Bidjara people had experienced in the past would not continue in the future even if an adjournment was allowed. 55 Sixthly, the Bidjara people had had more than adequate opportunity in which to brief and instruct Professor Langton properly in relation to the preparation of an anthropological report. 56 Section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), contains a statement of the "overarching purpose" of the Court's civil practice and procedure provisions. Section 37M provides: (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. Counsel for the Bidjara people emphasised the purpose in subs (2)(a), namely, the objective of achieving the "just" determination of all proceedings. However, the other purposes in subs (2) are also important, in particular, the efficient use of the Court's resources, the efficient disposal of the Court's overall case load, and the disposal of all proceedings in a timely manner. 57 In our opinion, this Court should not conclude that the primary judge failed to have regard to the matters on which the Bidjara people rely presently. In her ex tempore reasons, the judge referred to many of the matters which each party had put to her. It is true that the judge did not mention every one of the matters on which the Bidjara people now rely and those to which we have referred above. However, as Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 at [1], "an ex tempore judgment should not be picked over". This makes it difficult for this Court to conclude that the primary judge failed to have regard to a relevant consideration, including the difficulties which the Bidjara people would face in proceeding while unrepresented. 58 Some of the matters to which the primary judge did not refer expressly in the ex tempore reasons had been mentioned by Mr Robinson only very shortly before the judge gave her decision, and there is no reason to suppose that they were overlooked by her. It is commonly the case that ex tempore reasons do not incorporate reference to every matter mentioned in the argument. That is because they are given in a context which assumes knowledge by those to whom they are directed of the submissions on which the decision is based. Ex tempore reasons are to be read and considered fairly and as a whole, with due consideration to the context in which they were delivered: Khanchitanon v R [2014] NSWCCA 204 at [26] (Adamson J). 59 The case was undoubtedly important to the Bidjara people and this was a significant matter in the decision on the adjournment application. The Full Court spoke of this importance in Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [34]; [2013] FCAFC 58: [L]itigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. 60 However, the importance of the issues to be determined by the trial was obvious. So also were the purposes of the NTA. This being so, it should not be inferred that, just because the primary judge did not refer to these matters expressly, their bearing on the adjournment application was overlooked. 61 Accordingly, we do not consider that the Bidjara people have shown an error of the House v The King type. 62 The same considerations apply in relation to the Bidjara people's alternative submission, namely that on refusing the adjournment, the primary judge should have permitted Mr Robinson at least a few days in which to ready himself for the trial. 63 Nor, in our opinion, does framing the issue as one of denial of procedural fairness assist the Bidjara people. As noted, a failure to grant an adjournment can in some circumstances constitute a denial of procedural fairness. That circumstance will obtain if a party has been denied a reasonable opportunity to present its case. However, the matters to which I have referred indicate that that is not this case. The Bidjara people had been provided with a reasonable opportunity to prepare and present their case but, by their own action, had removed the possibility of doing so by legal counsel. It is to be remembered that procedural fairness requires that a party be given a reasonable opportunity to present a case: not every opportunity. 64 In our opinion, this ground of the Bidjara appeal fails.

Did the primary judge err in failing to take the evidence of the bidjara indigenous witnesses and/or the brown river indigenous witnesses on country? 65 Both the Bidjara people and the Brown River people complain of the fact that the Court did not take some of their evidence on country. 66 Arrangements had been made for evidence to be taken on country in the second week of the trial, namely, the week commencing Monday, 29 April 2013. Unfortunately, Mr Robinson, who was representing the Bidjara people, was admitted to hospital over the immediately preceding weekend. Although he had been discharged from hospital, a message received by the Court's Registry and provided to the primary judge indicated that his medical advisors had recommended rest for a week and it seemed that subsequently he had been readmitted to hospital. 67 The Court received the information on the morning of Monday, 29 April when it assembled with the parties at Roma, preparatory to embarking on the on country evidence. 68 The primary judge outlined to the parties present the message the Court had received concerning Mr Robinson and summarised the plans which had been made for the taking of evidence in that week. Her Honour recorded that the Court had received from Ms Keelen Mailman, one of the Bidjara people claimants, an indication that, because of Mr Robinson's illness, the Bidjara people would not be in a position to proceed. The judge indicated that, as other Bidjara people claimants were present, the Court could at least have a view of those aspects of the overlap area which the parties wished to point out and said: There is a question as to the taking of evidence in circumstances where Mr Robinson, who is the representative, is not here. So if anybody wants to put to me what they say should happen, now is the opportunity to do so. As I understand the Bidjara people's position, it is that evidence should not be taken in the absence of Mr Robinson. Later, the judge pointed out that the consequence of not taking evidence on country would be that the five Bidjara people witnesses and the five Brown River people witnesses scheduled to give evidence on country would give their evidence in Brisbane in the week commencing 6 May 2013. Her Honour said: So I am open to hear whatever applications [the parties wish] to be made, ... the Bidjara people [having] made theirs by email, effectively. 69 Mr Waters of counsel, then appearing for the Brown River people, pressed the Court to take the evidence of the Brown River people witnesses on country, submitting that it would be possible for the Bidjara people to apply to have them recalled for cross-examination if they wished. Mr McLeod, who had been granted leave to represent the Karingbal, supported the matter resuming in Brisbane for the taking of evidence. The State opposed the making of any further arrangements for the taking of on country evidence, emphasising the fact that the hearing had not been able to commence on the previous occasions when scheduled and the costs of taking evidence on country. 70 The primary judge rejected the Brown River people submission that she should proceed to take evidence on country. Given the incapacity of Mr Robinson who was then representing the Bidjara people as a lay advocate, that ruling was probably inevitable. As Beaumont J observed in Wilkes v Western Australia [2003] FCA 156 at [10] in relation to the right of an unrepresented claimant to be present at a view of a sacred site of another group, "It seems to me inevitable that, as an unrepresented party, he should be permitted to be present at each of the other sites as a necessary incident of providing him with an adequate opportunity to be heard in his own cause. I can see no alternative, in principle, or in practice". 71 Accordingly, the planned on country evidence did not proceed and all evidence in the trial was given in Brisbane. The primary judge did however take a view of areas which the parties pointed out. It seems that others in the Bidjara people claim group assisted in that respect. 72 In her ex tempore reasons given on 29 April 2013, the primary judge referred to, and accepted, the importance which the Brown River people and Bidjara people attached to the giving of their evidence on country, to the resources, time, money and energy which the parties had committed to the proceeding, to the commitment of public funds involved in the use of the Court's resources, and discussed the various alternatives available. Her Honour noted the disadvantages to Mr Robinson if the Brown River people proposal that their witnesses give their evidence on country in Mr Robinson's absence was adopted (arising from the fact that he would have to cross-examine on the basis of the written record only without having seen and heard the evidence given) and to the prospect that, even if evidence on country was taken from the Brown River people witnesses, they would still be required to attend in Brisbane for the cross-examination by Mr Robinson. The judge noted the expense and organisational difficulties involved in reassembling to take evidence on country and then concluded: So, no matter how much people want to give evidence on country, which I accept, there is a level at which the Court, frankly, can do no more and the resources which have been used to get us all here this week are simply not available to gather everybody here for another two or three days at another time. So let me make it clear that the practical reality that we are all confronted with, the situation that we are all in, is, in my view, best resolved in the interests of justice and fairness of all people to insist, as we have done, that the view take place, which the Bidjara people have accepted should occur, and otherwise to say we are sorry. We have done the best we can to facilitate you and allow you to give your evidence in the location you wish to give it, but we cannot do so. We cannot do so because it would be unfair to proceed and we cannot come back again because it would also be unfair to impose that burden of cost, time and effort on parties in circumstances where at least part of the Brown River People's evidence would have to be given in court and where the whole of the Bidjara people's evidence would have to be given in court, in circumstances where both have expressed a strong desire not to do so, the fair result in this case is to say we will have the view but we will not take evidence, be it evidence in chief or any cross-examination. That evidence will all be taken in court next week. 73 As can be seen, the primary judge abandoned, with regret, the proposal to take evidence on country. The judge considered that the Court had made a proper effort to do so, that it would be unfair and too expensive to come back and expressed her desire to achieve fairness between the Brown River people and the Bidjara people in the way the evidence was given. 74 Earlier, during the course of the submissions the judge had warned the Bidjara people that she was unlikely to look sympathetically on a later application by them for evidence to be taken on country: I should make this clear to the Bidjara people, because we've done everything we can and we've all spent a lot of money to get here and it's just unfortunate that Mr Robinson has been taken ill, I would definitely not be looking sympathetically on [an application that] we've all got to come back here. 75 In her published reasons for judgment dismissing the claims of native title, the primary judge referred to the written submissions made on behalf of the Brown River people which included: With the benefit of hindsight it may be that perhaps more could have been done to put witnesses at their ease. It would certainly have been preferable if elderly witnesses had been able to give evidence at bush locations on country, rather than within the confines of the courtroom. At [484], her Honour was critical of this submission and said: The submission is gratuitous. Those responsible for the Brown River people submissions (about which I will say more next) know that it was intended that much of the evidence of Aboriginal people was to be given on country and the only reason this did not occur was the sudden illness of one of the unrepresented parties. It would have been grossly unfair, to the probable point of appellable error, to permit evidence to be given on country in the absence of the authorised representative of one of the parties. For this reason, plans had to be changed, the on country hearing became a view only, and all parties were required to give their evidence in court. In these circumstances hindsight about the desirability of giving evidence on country is unhelpful. 76 As noted, both the Bidjara people and the Brown River people complain on appeal that their evidence had not been taken on country. Both allege that the primary judge had thereby denied them procedural fairness. Ground 2(b) of the amended notice of appeal of the Bidjara people claims: The learned primary judge erred by failing to accord the Appellant procedural fairness by: … (b) Not hearing evidence of indigenous witnesses for the Bidjara applicant on country and, further, in not adjourning the proceedings or allocating further hearing dates for the proceedings to allow for that evidence to be given on country and in circumstances where Prof Sutton gave evidence about the importance of evidence being given on country. 77 The corresponding ground in the Brown River people's notice of appeal alleges as follows: 1. The trial judge erred by denying the Appellant procedural fairness. Particulars (a) Her Honour failed to provide the Appellant with a reasonable opportunity to present its case by refusing to hear the evidence of the Appellant's Aboriginal witnesses on-country and in an informal setting as had been earlier ordered by Reeves J and instead ordering on 29 April 2013 that the Appellant's Aboriginal evidence be heard in the Federal Court in Brisbane (Reasons at [481]-[484]). The balance of ground 1 in the Brown River people's notice of appeal contained complaints which are more in the nature of a challenge to the discretionary decision of the judge declining on 29 April to proceed with evidence on country, rather than to a denial of procedural fairness. 78 Counsel for the Bidjara people submitted that the primary judge gave undue prominence to the resource limitations on returning to take evidence on country and had thereby omitted to consider the fairness to the Bidjara people of allowing their witnesses to give evidence on country and the prejudice which they would suffer if they did not. The judge undoubtedly did have regard to the resource limitations but not so as to ignore the other relevant considerations. So much is evident from the summary of the matters to which the judge did have regard set out earlier in these reasons. 79 This Court frequently agrees to take evidence on country in native title hearings. In doing so, it gives effect to s 82(2) of the NTA: (2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings. 80 In the present case, Dr Hutchings, the anthropologist retained by the Brown River people, had stated in an affidavit made on 19 April 2012: [24] It is important to the claimants, from a cultural point of view, that they are able to speak about their country on location, as far as is practicable. One of the principal reasons for this is that according to cultural practice, the proper place to speak about country is within the country. The place provides the stimulus and, according to the claimants' belief, the necessary spiritual components to facilitate proper discussion of relevant cultural matters. [25] In addition, claimants usually feel more comfortable speaking on their country because they understand it to be their home. Giving the evidence on country also provides the opportunity for family and community members to attend together, thus satisfying the need for claimants to speak about their country together with others as noted above. 81 These paragraphs of Dr Hutchings' report concerned the cultural and customary concerns which the Brown River people wished the Court to take into account in conducting the proceedings. 82 During the course of the present trial, Professor Sutton, the anthropologist called by the State referred to the advantages of evidence being taken on country as follows: Being on site always triggers much better information, much richer information. The other aspect to it though is to do with the confidence of the speaker ... [T]his kind of venue favours and advantages people who are used to speaking in public. It disadvantages those who are not and ... being out on country usually levels that one out pretty well. 83 Counsel for the Brown River people, whose submissions on this topic were adopted by counsel for the Bidjara people, submitted that the judge's ex tempore reasons did not indicate that she had taken any account of these concerns. 84 This submission cannot be accepted. The primary judge can hardly be taken to have overlooked these concerns, these being the reasons why the Court had made arrangements for the taking of evidence on country. Further, and in any event, the judge referred expressly in her ex tempore reasons to the importance which the Brown River people and the Bidjara people witnesses attached to the giving of evidence on country, saying: All of those witnesses had indicated through their representatives that they wished to give evidence at this location rather than in the court at Brisbane and that, indeed, it was considered very important by them to have the opportunity to give their evidence, as they say, on country rather than in the court. It was clear from what Mr Robinson said last week that he had considered people that he thought could give evidence in court and, indeed, he identified a number of people, Bidjara people, who could do so, but there were also a group of five people that he identified would very much wish to give evidence on country, including he himself. I'm not in a position today to distinguish between the strengths of various feelings that people have about the importance of giving evidence on country, but I know it is important to all those who indicated that they wished to do so and consistent with that I decided a timetable that would facilitate that happening, 85 We also observe that, during the course of the submissions on 29 April as to the course of action to be followed given Mr Robinson's absence, the judge said: I actually accept that all of the people who have indicated that they want to give evidence on country will not feel comfortable giving evidence anywhere else. I accept that. 86 In the context of ex tempore reasons, this should be understood as an express reference by the primary judge to the matters which had warranted the order that evidence be taken on country. 87 Next, counsel for the Brown River people submitted that the primary judge had accommodated the difficulties for the Bidjara people arising from Mr Robinson's illness without paying proper regard to the difficulties which that accommodation caused to the Brown River people. Again, this submission is not borne out by the judge's ex tempore reasons. The passages set out earlier indicate that the judge did have regard to the competing interests and the effect on each party before deciding that the practical course was to abandon the attempt to take evidence on country and to take all the evidence in Brisbane. 88 One difficulty for the Bidjara people with this ground of appeal is that, having succeeded on 29 April 2014 in persuading the Court not to proceed to take evidence on country in that week, they did not make any application subsequently for the Court to take evidence on country at another time. This means that the judge was not asked to exercise again the discretion concerning the taking of evidence on country. 89 Counsel for the Bidjara people sought to overcome this difficulty by reference to the judge's statement on 29 April that she would not be "looking sympathetically" on an application by the Bidjara people that the Court return to take evidence on country. He submitted that the omission of the Bidjara people to make a second application was explicable by their perception that it would have been futile to do so. However, there is no evidence that Mr Robinson, who was representing the Bidjara people, was aware of the judge's statement on 29 April, he not having been present at the time it was made. Nor is there any evidence that Mr Robinson had been influenced by the judge's statement not to make a second application for the evidence to be taken on country. The evidence before this Court is just as consistent with the Bidjara people being content to present their evidence in Brisbane, given their success in avoiding the trial proceeding on country in Mr Robinson's absence. 90 The Brown River people did not make any renewed application for on country evidence after 29 April 2014. We observe that the primary judge's statement that she would not look sympathetically on a further application was directed to the Bidjara people and not to the Brown River people but the Brown River people may reasonably have taken the view that that intimation applied to themselves as well. However, on the appeal counsel for the Brown River people provided an explanation for a renewed application not having been made. That was to the effect that trial counsel was aware that the evidence in chief of the relevant Brown River people witnesses would be in writing and had had reasonable grounds for thinking that none would be subjected to a rigorous cross-examination. In this circumstance, counsel had been content for the whole of the Brown River people evidence to be given in Brisbane. That indicates that trial counsel made a forensic choice. The making of that choice may not preclude the Brown River people altogether from asserting that a denial of procedural fairness occurred, but it does very much weaken the strength of the argument. 91 The fact that the evidence in chief was to be given in writing is relevant in another way. It meant that limited evidence in chief would have been given on country, had the trial proceeded that way. Counsel for the Brown River people made that plain in opening: It's my proposal ... when we are on country and back in Brisbane, to provide each witness with the witness statement, go through any changes they might make, make those corrections, ask them if they … adopt their statement as being true and correct, tender the statement to you and then just ask them a few questions - not many because I'm aware of the time - just to make them a bit comfortable because if I put them straight into cross-examination, that would be very difficult for them. Ask them a few questions to make them comfortable and then we go into cross-examination. 92 Whilst the importance of cross-examination is not to be under estimated, this indicates that the Brown River people's witnesses were able to give the evidence in chief which they wished, irrespective of the place where the evidence was taken. 93 Finally, we observe that neither counsel for the Bidjara people nor the Brown River people pointed to any indication in the evidence of a witness being apparently discomforted or inhibited while giving evidence in the courtroom in Brisbane. We are conscious that, having regard to the limitations of a written transcript, the absence of such an indication is not conclusive, but it does point against there having been a denial of procedural fairness. 94 Accordingly, we consider that neither of these grounds of appeal of both the Bidjara people's appeal and the Brown River people's appeal is made out.

Did the primary judge err in finding that the Bidjara people had failed to maintain their connection with their country by traditional law and custom?

Primary judge's findings 95 The primary judge found, at [625] of her reasons, that there was a strong Bidjara identity, having regard to the evidence of the Bidjara witnesses, and that the evidence supported the inference that a Bidjara society had continued to exist since sovereignty, "at least in the common, rather than the NTA, sense of a society". Her Honour explained what she meant in this regard by stating: That is, a distinct body of people who identify as Bidjara existed at sovereignty and may be inferred from the evidence to have continued to exist at all subsequent times. 96 Her Honour added that unlike the Karingbal (being in context a reference to the Brown River people) it could not be inferred that the concept of a Bidjara society was largely the result of the native title claim process and the anthropological evidence required to be gathered in support. Her Honour found that the Bidjara plainly existed as a distinct body of people who identified as Bidjara and who demonstrated a real interest in their own cultural heritage well before the era of the NTA. 97 Her Honour thus stated that the issues for the Bidjara were whether their contemporary society is "united in its acknowledgment and observance of the traditional, that is pre-sovereignty, laws and customs of the Bidjara people", as required by s 223 of the NTA and as explained in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58, and whether those laws and customs "found their continued connection to that part of the overlap area" which her Honour had found was Bidjara country. 98 Her Honour found, at [627], that the anthropological evidence about the pre-sovereignty system for the acquisition and enjoyment of communal rights in land of the Bidjara must have included differential rights and responsibilities based on "familial/environmental clusters". Her Honour said that the only additional observation which should be made was that the extent of the geographic differences of the areas incorporated within Bidjara country were so vast that the notion that all Bidjara held all of the same rights and interests in the whole of Bidjara country under the pre-sovereignty traditional laws and customs was "untenable". 99 Her Honour thus found, at [628], that the evidence supported the inference that this important aspect of the pre-sovereignty traditional laws and customs had been lost by the time of the generation of Uncle Rusty Fraser, Bob Mailman and Betty Saylor. She accepted a submission made on behalf of the State that no evidence of any continued acknowledgment or observance of these aspects of the law and custom was given by Uncle Rusty, Ritchie Fraser, Bob Mailman or Betty Saylor at the preservation of evidence hearing held in 2001 before Ryan J. 100 Her Honour also noted that while Floyd Robinson said he had been told about people getting different parts of country, it was apparent that other contemporary Bidjara witnesses denied the existence of any such notions in their current dealings with each other. Even Floyd Robinson, who had been told these things, accepted the basic rule now was that the whole of Bidjara country belongs equally to all Bidjara. Her Honour said that was in "stark contrast" to the position that would have existed under traditional Bidjara law and customs. 101 Her Honour specifically accepted, at [629], a submission made by the State that: The idea that all 10,000 Bidjara people hold undifferentiated - and therefore unregulated - rights and interests in the whole of such area of land and waters as may properly be found to be Bidjara country is not consistent with what can reasonably be presumed to have been the normative system in place at sovereignty. 102 Her Honour then noted, at [631], other "discontinuities" in respect of the Bidjara relationship to land. Her Honour observed that the contemporary Bidjara witnesses seemed to have lost any real understanding of at least the eastern boundaries of their country based on traditional knowledge. Her Honour did not consider that the expansive boundaries claimed to have been supported by Uncle Rusty were supported by any rational view of the evidence or as a result of the handing down by word of mouth of the knowledge of traditional boundaries. Her Honour found that traditional notions of country and the country of neighbours of the Bidjara appeared to "have largely been lost". 103 As to the basic criterion for membership of the Bidjara claim group, her Honour noted at [633] that the evidence was that descent from a Bidjara parent, whether through the female or the male line, was the rule. In that regard, her Honour accepted, at [634], that there had been an adaptation over time, in this regard, but that this was appropriately described as adaptation of a pre-sovereignty rule, as opposed to a new rule. 104 Her Honour also accepted, at [635], that an original rule of patrilineal or patrifilial descent that operated pre-sovereignty had been replaced by a contemporary cognatic system, but one which appeared to be unregulated, without any imposition of any kind of limitation on the reckoning of group membership which, as a consequence of the cognatic descent model, would be ever expanding. 105 Her Honour found, at [637], there was a lack of evidence about adoption as a criterion for membership of the Bidjara. Her Honour also accepted, at [638], a submission made by the State that the expansive approach to group membership evident from Raymond Robinson's evidence, who claimed that many people were Bidjara, regardless of how they identified themselves, was inconsistent with traditional laws and customs; as was his position that if anyone spoke the Bidjara language they must be Bidjara. 106 So far as Raymond Robinson's evidence was concerned, her Honour also said, at [638], that his role as an advocate for the Bidjara gave him prominence in the proceedings disproportionate to other witnesses, a few of whom made claims to similar effect, and she was not prepared to use his advocacy as evidence of material discontinuity. 107 At [639] and following, the primary judge, so far as social organisation was concerned, accepted the State's submission that in almost all respects the former laws and customs regarding social organisation had ceased to operate for the Bidjara. Her Honour accepted there was no evidence regarding kinship rules or a kinship system. She accepted the evidence of Professor Sutton, who described the practice whereby older men and women are simply referred to as "Uncle" and "Aunty" as one that had evolved rapidly in the national Aboriginal domain in recent decades and did not reflect genealogical relationships but the recognition of status and gender, with the consequence that the use of such terms is "a post-classical innovation and represents a departure from traditional kinship norms". 108 Her Honour accepted that the anthropological evidence supported the existence of a four class section system and exogamous moieties which regulated the composition of the particular "land holding entity", whether it be an estate or smaller local group, in pre-sovereignty times. Uncle Rusty knew about the system of skins, however contemporary witnesses did not have any knowledge about those customs, let alone continue observance of any section system, except Patricia Fraser. Ms Fraser's knowledge, however, appeared to come from some research. 109 Thus, the primary judge held, at [645], the evidence could not be seen as suggesting any continued knowledge of the section system. To the contrary, it suggested the knowledge had been lost and some attempt at revival had been made for the purpose of the hearing. Her Honour did not accept Professor Langton's opinion that this showed "very clear evidence of continuity". Rather, her Honour considered it showed clear evidence of loss of traditional law and custom and accepted the evidence of Professor Sutton, who said there was no evidence of continuation of section/moiety structures as norms for the selection of marriage partners. Her Honour found, at [646], that the section system itself had disappeared, as had traditional law about marriage. 110 Her Honour accepted however, at [648], that there was an element of continuity in the Bidjara's continued respect for elders and she did not consider that the approach of the Bidjara to the Karingbal (such as that the Karingbal do not exist or are a subgroup of the Bidjara) was good evidence of discontinuity, because that approach had no doubt been affected by the litigation. 111 Her Honour accepted, however, that the weight of the evidence indicated that, for all practical purposes, the domains of separate men's and women's business had been lost. 112 As to spiritual beliefs and practices, her Honour accepted, at [652] and following, all of the State's submissions about these issues, to the effect that the traditional use of land had given way to the demands of contemporary life; there was no evidence of hand stencils being updated by families; the cultural heritage processes were for the purpose of enabling mining and were investigative, rather than ones by which known sacred sites were identified for preservation; some but not all witnesses gave evidence about calling out to old people or spirits when entering country and about spirit messenger birds and junjadis; but accepting that Floyd Robinson gave evidence of traditional narratives which it should be inferred had been passed onto him by his elders. 113 Her Honour, at [653], considered that the problem for the Bidjara was evidentiary. Their focus in giving evidence was so much on establishing the extent of Bidjara country that little had been said about the continuation of traditional laws and customs as norms of contemporary Bidjara society. Even taking into account Floyd Robinson's traditional narratives, they did not demonstrate the maintenance today of a traditional normative system. Her Honour accepted the following submission of the State, that the evidence did not directly address that inquiry into the maintenance today of the traditional normative system: For example, do the stories relate to how rights and interests in land are held and regulated? Do they relate to particular sites? Do they convey information having a normative content? Are they known by most of the group or is knowledge of them confined in some way for any particular reason? The evidence simply does not permit of any answers to these questions. 114 Her Honour also found that the evidence of Floyd Robinson, who had spent time learning from Uncle Rusty, lacked detail about the content of what he was taught. Examples were provided by her Honour in that regard. At [654], her Honour did not accept that the lack of detail was for reasons of cultural sensitivity, and inferred the detail was simply not known. 115 As to the Mundagatta creation story, mentioned by a number of witnesses, her Honour found, at [656], that it was a solitary fragment of what once had been a rich tapestry of Bidjara creation myths relating to all aspects of Bidjara country which had disappeared. 116 Similarly, at [657] and following, her Honour found that a number of customs no longer existed, such as a taboo on the names of the dead, ceremonial life, and language. 117 In the event, at [672], her Honour found the requirements of s 223 of the NTA had not been met by the Bidjara. While accepting that, at sovereignty, the overlap area was Bidjara country and Bidjara people had rights and interests in it, her Honour found that the people who now identify as Bidjara did not maintain a connection by a body of traditional laws and customs, as opposed to "attenuated or transformed fragments of law and customs". Thus, the connection maintained by the Bidjara today did not have a source in traditional law and custom. 118 Her Honour finally noted that this conclusion concerned the requirements of the NTA and said nothing about the fact of Bidjara identity or the existence of contemporary Bidjara society. Equally the conclusions said nothing about the value of Bidjara efforts to continue, revive and protect aspects of Bidjara culture.

Bidjara people's submissions 119 The Bidjara invite the Court to conduct a review of much of the evidence given at the trial and the reasons of the primary judge, and, in so doing, to draw its own inferences and conclusions on the connection issue. If this is done, these appellants submit, the Court should come to a different conclusion concerning continuity of connection by traditional laws and customs than did the primary judge. 120 The Bidjara note her Honour's conclusion, at [672], that she was not satisfied that the requirements of s 223 of the NTA had been met by them. In particular, they note that her Honour was not satisfied that the Bidjara today possess any interests under traditional law and custom which give them a connection with the land or waters of the overlap area. This is because her Honour was not satisfied that any body of traditional law and custom, as opposed to attenuated or transformed fragments of law and customs, had continued. Further, such connection as there was, was not a connection which had as its source traditional law and custom. 121 The Bidjara say the evidence of continued laws and customs could be found in the anthropological evidence, reflecting the evidence given by the traditional owners. They say the problem with her Honour's approach is that over the course of more than two centuries there are inevitable changes, adaptions and evolutions, but these have not severed the continuity. 122 The Bidjara note that the primary judge chose to conduct the assessment of continuity against what they refer to as "eight factors". They say these are to be found in her Honour's reasons at [626]-[672]. Those paragraphs deal, in broad terms, with the topics of: land tenure system; group membership; social organisation; spiritual beliefs and practices; creation stories - Mundagatta; taboo on the names of the dead; ceremonial life; and language. 123 The Bidjara accept that the first step required in determining whether native title exists today is to identify the traditional body of law and customs at sovereignty, noting that law and custom is to be seen in Aboriginal terms as an aggregation of traditional values, rules, beliefs and practices derived from the past, equating to practices, traditions and customs, as explained by Lee J in Ward on behalf of the Miriuwung and Gajerrong People v State of Western Australia (1998) 159 ALR 483 at 504; [1998] FCA 1478 (Ward 1998). 124 The Bidjara note the legislation does not use the word "society" but accept that the existence of some form of society is essential, as explained in Yorta Yorta. They note that her Honour found the existence of a contemporary Bidjara society and that it had continued to exist since sovereignty. The Bidjara submit that her Honour's requirement that the contemporary society must be "united in its acknowledgement and observance of traditional … laws and customs", so far as the requirement of "united" is concerned, would add a requirement not found in either s 223 of the NTA or the case law. 125 They submit the essence of the fact finding inquiry is to determine the extent to which traditional practices, traditions and customs that existed at sovereignty have survived and continued by virtue of the traditional normative system and not by reason of the legal system imposed with the advent of the new sovereign. This also recognises there is room for adaptation and interruption of practices, tradition and customs. These are not necessarily fatal to continuity but are to be assessed as questions of fact and degree, as explained by the plurality in Yorta Yorta at [82]-[83]. 126 Thus, in the Bidjara people's submission, the key question, as explained in Yorta Yorta at [83], is whether the law and custom can still be seen as the traditional law and the traditional custom. 127 The Bidjara emphasise that adaptation in accordance with laws and customs of the ongoing society does not deny a traditional character. 128 The Bidjara submit that, in arriving at her conclusions on continuity, the primary judge erred by concentrating on aspects of discontinuity and applying standards for finding continuity that are not required by law. It is said this resulted in her Honour placing a focus on discontinuities and not appreciating the continuities, albeit the continuities were represented by law and custom in an adapted form. It is submitted that, properly considered, these continuities would have enabled her Honour to conclude s 223 was satisfied. 129 Rather, the Bidjara submit, the Court is required to factor into the fact finding exercise the most profound effects wrought on the Bidjara society by British settlement and the consequent inevitable great changes to the structures and practices of Bidjara society and its members. 130 The Bidjara contend that the effects on Bidjara society to which regard was required to be had include removal of Bidjara people from the land and their splitting up through various kinds of social organisation. They submit the primary judge appeared to accept Professor Sutton's identification of four types of social history from the 1960s, namely, pastoral based experience; incarceration at Woorabinda and other reserves; town reserve tenant camps (yumba); and life in cities such as Rockhampton and Brisbane. Additionally, they point to the evidence of frontier violence. 131 The Bidjara submit the findings of the primary judge that there is no body of traditional law and customs of the Bidjara that has continued since sovereignty through to today are in "rather absolute terms". For example, her Honour found, at [672], that the current connection is not a connection which has its source in traditional law and custom. It is submitted that this finding is at odds with a number of significant findings consistent with substantially uninterrupted acknowledgement and observance as required by s 223. 132 The Bidjara submit that, as to the "lay evidence" of continuity, the evidence of Uncle Rusty is a "watershed point" in establishing continuing connection. They say the effect of his evidence is that Bidjara traditional laws and customs were still being acknowledged and observed in 2001, when Uncle Rusty gave his evidence before Ryan J in order to preserve it for the final hearing. It is submitted his evidence is also an important link to the laws and customs at the time of sovereignty. The Bidjara further emphasise Uncle Rusty passed on his knowledge, for example, to Floyd Robinson. 133 In that regard, the Bidjara say Uncle Rusty's evidence should not be treated as that of the last of his tribe, as it effectively was. They say the evidence was that there had been a movement to maintain the law and custom passed on from Uncle Rusty among others. It is submitted he and others of that generation were talking about Bidjara country long before mining, coal and gas fields were topical and they did a lot of teaching. 134 The Bidjara contend the evidence demonstrates that a significant cohort of Bidjara people worked to preserve and pass on traditional law and custom. Besides Uncle Rusty, Bob Mailman, Betty Mailman, Dusty (Archie) Fraser, Fred Lawton, Amby and Sammy Albury, Nell Robinson (Fraser), Uncle Frank Geebung, Bernie Mailman, Uncle Joe Lawton, Aunt Jessie Turner (Fraser), Uncle Len Mailman, Ritchie Fraser, Wally Mailman, Doreen Fraser and Henry Gadd were all other observant and knowledgeable Bidjara persons of that same generation. They in turn had learned from people such as Jack Fraser, Patricia Fraser's grandfather, born in 1887. It is submitted Patricia Fraser was also very strict and knowledgeable about Bidjara law and customs. The concern of Uncle Rusty's generation for preservation extended to concerns about desecration of sites, including removal of remains. 135 The Bidjara also note that Keelen Mailman, who was 47 years of age at the time of the hearing, speaks the Bidjara language fluently, having been taught by her mother Betty Mailman. It is submitted language and spirituality are connected. Her mother (Yungella) also taught her Bidjara women's business and she in turn teaches her grandchildren Bidjara language, culture and traditions. Ms Mailman was also taught how to live off the land and she has learnt about bush fruits and how to kill, clean and cook budburra (echidna). She said there was a form of familial tenure, that women's business was still observed, and that budburra was pretty much everyone's favourite food. She described a rule about the distinction between the prohibition on moving stones, axes and artefacts and moving a coloured piece of rock like a gemstone, which could be moved so long as it remained in Bidjara country. 136 The Bidjara also emphasised the evidence given by Floyd Robinson, Patricia Fraser, Bob Mailman, Brendan Wyman, Raymond Robinson, Rodney Mailman and John Leslie in similar ways. 137 In short, the Bidjara submit the primary judge did not regard, as evidence of continuity, the considerable body of evidence about the number of Bidjara who consistently and for many years worked to preserve sacred sites, secure the return of remains and were active against desecration, which developed into cultural heritage work. 138 Further, they submit, the witnesses' evidence on the practices concerning marriage supports the reasonable inference that the practice of marriage outside Bidjara was consistently observed, notwithstanding that it may not have been specifically referred to by all witnesses. 139 Additionally, the Bidjara submit the anthropological evidence supports a finding of continuity. Professor Sutton, they say, gave evidence that Bidjara country included the upper Warrego River system as far up as the Carnarvon Gorge at sovereignty and the continued close connection to Carnarvon Gorge. He considered it was convincing that Bidjara people had been exercising custodial rights in heritage in the Gorge since the 1960s. The Bidjara submit the primary judge's perspective that the necessary connection (through language, dance and song) finished with the death of Uncle Rusty jars with the evidence of a close relationship to the land in question as reflected in the long term protection of cultural heritage. 140 The Bidjara also rely on the evidence of Professor Langton on the continuity of Bidjara songs, dances and stories; Professor Sutton's evidence about the singing of elders and that revitalisation is a legitimate means of maintaining culture; Dr Hutchings' evidence on Bidjara ceremonial rights and interests in the Carnarvon Gorge; and Professor Sutton's evidence of an absolute continuity of entry into a landholding group by descent from an ancestor. They submit Professor Sutton's evidence of absolute continuities, that the interest in land is always communal, and that land is not a chattel and is inalienable, supports the continuity case. 141 They also emphasise Professor Sutton's evidence about spirit connection with country. They say the Bidjara believe they have a responsibility to protect the tombs of the old people, assert an incest taboo and have an emphasis on supernatural domains. 142 The Bidjara submit that her Honour also failed to take into account evidence from Professor Sutton that Aboriginal societies, generally, started marrying "for love" after the Second World War. 143 The Bidjara also emphasise continuity through the evidence of teaching of language, the passing on of mystical beliefs, the continuity of art and its significance and the handing on of knowledge by elders. 144 The Bidjara, therefore, submit that the primary judge applied a standard of strict observance and acknowledgement of a body of traditional laws and customs under which rights and interests to land are held, by reference to eight factors mentioned above, and that approach diverted from the task of assessing the fact and degree of changes in practices, if any, and the reason for those changes. For example, burials could not take place in bark as they had in the past because it was illegal. Spearing and death for contravening customs or practices is not tolerated, although a norm described by Uncle Rusty. 145 The Bidjara say that if the primary judge had applied a test of whether the whole of Bidjara traditional laws and customs had been acknowledged and observed substantially uninterrupted and having regard to interruptions and adaptations, her Honour would have found continuity.

State's submissions 146 The State, in effect, cautions the Court, in the exercise of its appellate function, to bear in mind that the Court has not seen or heard the witnesses and should make due allowance in that respect. The State emphasises that in such an appeal a question always arises whether the primary judge enjoyed a significant advantage over the appeal court in the evaluation of evidence. See for example Moses at [309] and the authorities there cited. 147 The State submits that, if all that is shown is that the primary judge made a choice between competing inferences, being a choice this Court may not have been inclined to make, but not a choice the primary judge should not have made, no error will be demonstrated. See Sampi on behalf of the Bardi and Jawi People v State of Western Australia (2010) 266 ALR 537 at [7]; [2010] FCAFC 26. This approach, it is said, also accords with the principles that govern appeals from decisions involving the exercise of judicial discretion as explained in House v The King. 148 The State submits that the primary judge's approach to continuity was consistent with the Yorta Yorta test and did not place standards on the continuity of a body of traditional law and custom that are not required by law, as the Bidjara submissions put it. 149 The State submits her Honour made no error in identifying a requirement that contemporary Bidjara society must be united in its acknowledgment and observance of traditional laws and customs, because that is precisely what was said to be the case in Yorta Yorta at [89]. 150 The State further submits that the primary judge did not apply a test requiring continued "strict observance" for a period of 200 years or so, as the Bidjara suggest. 151 As to the Bidjara submission that the Court is required to factor into the fact finding exercise the most profound effects wrought on Bidjara society by British settlement, the State refers to what was said in Bodney v Bennell (2008) 167 FCR 84 at [97]; [2008] FCAFC 63 to the effect that mitigating the effects of change by reference to white settlement "is not a process contemplated by Yorta Yorta". The Full Court there emphasised that the continuity inquiry does not involve consideration of why acknowledgement and observance stopped. In the State's submission, if that were not the case a great many Aboriginal societies would be entitled to claim native title rights even though their current laws and customs are in no meaningful way traditional. 152 The State also submits that the primary judge's finding as to some limited continuities of law and custom are not consistent with substantially uninterrupted acknowledgement and observance, as required by s 223 of the NTA. 153 The State does not accept the characterisation of the indigenous Bidjara evidence provided in the Bidjara submissions and submits that the range of topics referred to as having been addressed by each witness only serves to highlight the inconsistencies in the evidence that was given. It says the Bidjara submissions have not engaged with the fundamental discontinuities which were found by the her Honour, including: an important aspect of the pre-sovereignty traditional laws and customs, namely the existence of differential rights and responsibilities based on familial/environmental clusters, had been lost by the time of the generation of Uncle Rusty and other witnesses as of 2001 (at [627]-[629]); the notion that the Karingbal were a subclan of the Bidjara was not supported by the Bidjara evidence (at [630]); the loss of any real understanding of (at least the eastern) boundaries of their country based on traditional knowledge (at [631]-[632]); apart from descent, and possibly adoption, the contemporary "expansive" approach to group membership exhibited by Bidjara witnesses is inconsistent with traditional laws and customs (at [633]-[638]); in almost all respects, the former laws and customs regarding social organisation have ceased to operate (at [639]-[651]); the loss of all but the Mundagatta creation story (at [656]); and the loss of all ceremonial life and activity (at [658]-[662]). 154 The State also does not accept as accurate the summary of the expert evidence, in particular that of Professor Sutton, that the Bidjara provide in their submissions, at least in some respects, due to a lack of context or omissions. 155 In short, the State submits the primary judge's reasons contain a careful and detailed summary of all the evidence, and are not attended by any error in the construction of s 223(1)(a) of the NTA, or in the application of the approach required by Yorta Yorta to the question of continuity. In the State's submission, the contention that her Honour applied a standard of "strict observance and acknowledgement" is not reflected in her Honour's reasons.

Continuity principles and challenges in proving native title 156 Before dealing in more detail with this ground of appeal and the related ground of appeal of the Brown River people concerning the primary judge's continuity findings for each group of claimants, we consider it is useful more generally to identify the legal principles governing continuity, as well as the challenges that confront claimants and a trial judge in relation to the proof of native title, and a little of how the primary judge approached these issues. 157 Section 223(1) of the NTA defines the expressions "native title" or "native title rights and interests" in the following terms: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 158 In Yorta Yorta the plurality (Gleeson CJ, Gummow and Hayne JJ) explained the full significance of the expression "traditional laws acknowledged, and the traditional customs observed" that appears in this definition. Their Honours made a number of salient statements about the expression to the following effect: The reference to "traditional laws acknowledged, and the traditional customs observed" is, in fact, a reference to a body of norms or a normative system (at [39]). The fundamental premise from which the NTA proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs (at [40]). Taken as a whole, the expression "traditional laws acknowledged and traditional customs observed", by its use of "and" rather than "or", obviates any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom. Nonetheless, the rules must have normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters (at [42]). Rights or interests in land created after sovereignty, and which owe their origin and continued existence only to a normative system other than that of the new sovereign power, will not be given effect by the legal order of the new sovereign (at [43]). The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of rights and interests in land. That does not mean that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. It follows that the only rights or interests in relation to land or waters which will be recognised after the assertion of the new sovereignty are those that find their origin in pre-sovereignty law and custom (at [44]). The word "traditional" is apt to refer to a means of transmission of law and custom and a traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the NTA "traditional" carries with it two other elements in its meaning. First, an understanding of the age of the traditions such that the origins are to be found in the normative rules of societies that existed before the assertion of sovereignty. It is only those normative rules that are "traditional" laws and customs. Secondly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and observed requires that the normative system is one which has had "a continuous existence and vitality since sovereignty". If the normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist, and any later attempt to revive adherence to the tenets of the former system cannot and will not reconstitute the traditional laws out of which rights and interests must spring if they are to fall within the definition of native title (at [46]-[47]). There is "an inextricable link" between a society and its laws and customs (at [49]). Their Honours expressly asked at [52] the following set of questions: Has the society ceased to exist? Does not the survival of knowledge of the traditional ways suggest that it has not? Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment? These may be very difficult questions to resolve. Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult. In the end, however, because laws and customs do not exist in a vacuum, because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the questions posed earlier must be answered, no. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can properly be described as being the existing laws and customs of the earlier society (at [53]). Demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases where it is recognised that the laws and customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted (at [82]). What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. The key question is whether the law and custom can still be seen to be traditional law and traditional custom (at [83]). Interruption of use or enjoyment presents more difficult questions (at [84]). Acknowledgement and observance must have continued substantially uninterrupted since sovereignty. The qualification "substantially" is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that may have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, it is necessary to demonstrate that the normative system out of which the rights and interests arise is the normative society as at sovereignty, not one rooted in some other, different, society (at [89]). 159 The primary judge was fully apprised of these Yorta Yorta requirements. Her Honour discussed them, with other general principles, at [449]-[472] of her reasons. 160 At [460], she also had regard to what a Full Court of this Court said in Bodney at [74] explaining that a society may continue to exist even though their traditional laws and customs may cease to exist. 161 By reference to De Rose v South Australia (No 2) (2005) 145 FCR 290 at [58]; [2005] FCAFC 110, her Honour, at [462], accepted that the requirement for continuity is not absolute and nor is the requirement for unity. At [465], the judge drew a number of propositions from Bodney as follows: (1) 'While it may be the case in a given instance that the evidence necessary to establish connection will be the same as that used to identify the claimed rights and interests…s 223(1)(b) serves its own purpose in s 223(1) and is not rendered largely redundant by s 223(1)(a)' (at [165]). (2) '…connection is not simply an incident of native title rights and interests as such. The required connection is not by the Aboriginal peoples' rights and interests. It is by their laws and customs' (at [165]). (3) '…because the connection inquiry is not tied to the rights and interests claimed - though their character and their exercise may be important in a given case in demonstrating connection by the traditional laws and customs - the inquiry itself is not contrived by the nature of the rights and interests ('communal', 'group' or 'individual') claimed in an application' (at [166]). (4) '…the laws and customs which provide the required connection are 'traditional' laws and customs. For this reason, their acknowledgment and observance must have continued 'substantially uninterrupted' from the time of sovereignty: Yorta Yorta HC at [86]-[89]; and the connection itself must have been 'substantially maintained' since that time: Ward FC at [241]' (at [168]). (5) '…the connection inquiry requires, first, an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws as constituting a connection of the people with the land. It is often observed, as in Ward FC at [243], that connection can be maintained by the continued acknowledgement of traditional laws and observance of traditional customs. The reason for this is that the laws and customs themselves characteristically will, in significant degree, presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships' (at [169]). (6) '…though the connection inquiry requires the formal characterisation of the laws and customs we have noted, it equally requires demonstration that, by their actions and acknowledgement, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs' (at [171]). (7) '…an effect of European settlement on aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land …It may have subsisted at a spiritual and/or cultural level… and for this reason such evidence as there may be of attempts to overcome the absence of physical presence on land that is claimed is of real importance…' (at [172]). (8) '…a requirement of connection 'involves the continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and customs … which may be expressed by its physical presence there or otherwise:': [Sampi v Western Australia [2005] FCA 777 (Sampi) at [1079]; see also Neowarra [Neowarra v State of Western Australia [2003] FCA 1402] at [353]' (at [174]). (As in original.) 162 At [466], she also recognised that physical absence does not necessarily prove lack of connection, referring to Risk on behalf of the Larrakia People v Northern Territory (2007) 240 ALR 75 at [104]; [2007] FCAFC 46, as well as Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group (2005) 145 FCR 442 at [92]; [2005] FCAFC 135. 163 The judge thus made the point, at [469], that the question is not merely whether a society has continued. The question is whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs of that continued society, albeit recognising that change, adaptation and interruption may not be fatal in that "[s]o long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional": see Bodney at [74]. She said that, putting it another way, for the purposes of the NTA, it is the continued acknowledgement and observance of pre-sovereignty laws and customs that enables it to be said that the relevant society itself has continued. 164 Nothing that the primary judge stated by way of general principle can or should be doubted. The principles identified by her Honour are pertinent to the resolution of this appeal, just as they were to the determination of the claimant applications before her Honour. 165 Her Honour ultimately said, at [472], that it should be apparent that the provisions of the NTA involve "a construct", and explained what she meant by saying that these provisions impose a set of requirements which bear no necessary relationship to contemporary Aboriginal Australia or, for that matter, what might ordinarily be considered to be a society and its continuance. She added that whether native title rights and interests can be established does not necessarily say anything about the existence of any contemporary Aboriginal society (in the sense of a body of persons united in and by its acknowledgement and observance of a body of laws and customs), the content or strength of any norms and values of that society, or the merits or otherwise of those norms and values. 166 Again, understood in the context in which the judge made these comments, coming at the end of an analysis of the relevant principles to be applied in determining whether the requirements of s 223 NTA have been met in any case, they are unexceptional. Her Honour fairly makes the point that not every contemporary society of Aboriginal peoples will necessarily be able to satisfy the s 223 connection requirements as explained in Yorta Yorta. The need to establish a "normative system" that has existed over the generations since sovereignty is the particular challenge. 167 The primary judge recounted, at section 5.1 of her reasons, the substance of the evidence given by the Bidjara claimants at the hearing. It is not suggested in this appeal that her Honour erred in any relevant way in the account she provided of this evidence. It is submitted, however, that the judge, in the course of regarding which laws and customs of the Bidjara inferred to have been acknowledged and observed at sovereignty had since been discontinued (the "discontinuities"), failed or failed sufficiently to determine whether the "continuities" identified in the evidence established the maintenance of a traditional normative system amongst the Bidjara. A similar submission is made on behalf of the Brown River/Karingbal appellants who say her Honour failed to regard the strength of their connection evidence. 168 It may be accepted that proving, or disproving, that native title exists involves a much more nuanced process of assessment and judgement than simply comparing a contemporary indigenous society with an (inferred) sovereignty society. A simple comparison between what might be called the "classical" sovereignty society, and its attributes or features, with a contemporary society, and its attributes and features, will in most, if not all, situations reveal that many rules, activities or processes that fall under the composite expression "law and customs" have been "lost"; that is to say, they no longer feature as requirements that attract sanctions or as activities or procedures ritually done by members of the contemporary society. 169 In relation to the present appellants, for example, classical rules about exogamous marriage between two marrying classes or moieties, female birthing practices, complex rituals associated with death and burial, and various taboos (including on the names of the dead) might well be expected to have ceased to be acknowledged or observed over the years since contact with Europeans, in the face of different laws and customs acknowledged and observed by the dominant new settler society. 170 Of course it will always be a question of evidence in any case as to whether particular laws and customs have been "lost", abandoned, or otherwise ceased to exist, or rather whether they have adapted to new circumstances, and so are still "traditional" for the purposes of s 223. 171 To the extent that the State in these appeals submits that the question of continuity of traditional laws and customs may be determined simply by comparing a list of laws and customs apparently followed by a contemporary society with those followed by the classical society, this submission is not accepted. As stated above, the task of determining whether, in effect, a "society" in Yorta Yorta terms has ceased to exist may be very difficult to resolve, as the plurality judgment in Yorta Yorta at [52] acknowledged. 172 In Yorta Yorta the plurality observed that, in the end, because laws and customs "do not exist in a vacuum", because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the primary question stated at [52] by the plurality, "Has the society ceased to exist?" must be answered, yes, it has ceased to exist. That remains the critical inquiry. 173 As acknowledged in these appeals, and in other cases, the first step in the inquiry that needs to be conducted is to ascertain what the classical laws and customs of a group were. Then, the laws and customs of the contemporary society may indeed be compared with them. It will be likely seen, to use the general language used above, that some laws and customs have apparently been lost, fallen into disuse or abandoned. In a given case, some other rules, activities or processes of the contemporary society may well, however, be seen to be a continuation, albeit in an altered form, of classical law and customs. 174 For example, it is not difficult to see that a contemporary practice of hunting a kangaroo with a rifle and preparing it for cooking with a knife is an adaptation of a classical custom of hunting and preparing food with pre-sovereignty implements. What has changed is the way the rule or practice (the law or custom) is done; but not the rule or practice. As the plurality in Yorta Yorta said at [82], in cases where laws and customs have been adapted in response to the impact of European settlement, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation, but also in deciding "what it was that was changed or adapted" (emphasis added). 175 Where particular contemporary laws or customs are in question, and it is suggested that a rule or practice is a new rule or practice, and not a rule or practice rooted in sovereignty, the key question is, as the plurality in Yorta Yorta said at [83], "whether the law and custom can still be seen to be traditional law and traditional custom". 176 In the process of the inquiry as to whether or not the traditional normative system of the sovereignty society has ceased, so that the contemporary society cannot be considered to maintain that traditional normative system, no doubt a finding that a particular traditional law or traditional custom has been lost, fallen into disuse or abandoned will be relevant. Some traditional laws and customs may be more important in this process of assessment and exercise of judgment than others. The loss or maintenance of a taboo on using the names of the dead, that may have been a feature of the classical society, may be considered relatively unimportant to the inquiry. Apart from anything else, it may be considered to say little or nothing about the possession of any particular rights or interests in relation to land or waters the subject of the claim. Given that under s 223 it is the possession of rights and interests in relation to land and waters under traditional law and custom that is at the heart of the definition of "native title", this should not be considered surprising. The loss of such a taboo may be remarked upon by way of a general observation that plainly there have been some changes to the classical system. 177 On the other hand, if a contemporary society still observes the custom of not speaking the name of a recently deceased member, then that may well add evidentiary weight to the fact that there is not only a society today, but perhaps one that in other, relevant respects maintains traditional law and custom. But of itself, one way or the other, the loss or retention of such a taboo probably says relatively little about the continuation of a traditional normative system in relevant respects. 178 The loss or maintenance of an indigenous language would ordinarily fall into the same category as a taboo on the use of names of the dead. As the anthropologists, including Professor Sutton, in the two appeals under consideration remarked in their evidence, the loss of indigenous language is a widespread phenomenon in Aboriginal Australia and is not unusual or surprising in the face of European settlement. The possession of rights and interests in relation to land and waters under traditional law and custom is not predicated on claimants proving they speak their ancestors' language. Again, the loss of language may be observed and may raise a question as to what else may have been lost. On the other hand, the continued widespread use of a sovereignty indigenous language by a group, or its reasonably widespread use, may lend evidentiary weight to support the proposition that not only is the contemporary society the successor to the classical society, but also that the contemporary society maintains a traditional normative system in relevant respects. 179 The same may be said about a range of other laws and customs, including marriage rules and formal kinship rules; and, indeed, creation myths. The loss of Dreaming stories may raise serious continuity questions but regard must still be had to all the evidence to see if a traditional normative system has been maintained. 180 Ultimately, what the plurality said in Yorta Yorta at [89], having observed that acknowledgement and observance of traditional laws and customs must have continued "substantially uninterrupted since sovereignty", is important in this regard. Their Honours noted that this qualification must be made to recognise that European settlement has had "the most profound effects" on Aboriginal societies and that it is "inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement". The plurality then added: Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. 181 This last quoted dicta emphasises at least three things. First, as the State submits, that change to laws and customs caused by European settlement cannot simply be ignored. Secondly, that it is almost inevitable that change will have occurred. Thirdly, nonetheless, if it can be shown that there is still a "normative system", out of which rights and interests arise, which is rooted in the sovereignty system, then those rights and interests may be recognised under the NTA. 182 Depending upon the evidence that is led in any case, claimants may establish that they continue to have a normative society rooted in the classical, sovereignty society out of which rights and interests contended for continue to be possessed, even where a range of rules and practices under laws and customs have ceased to be followed. 183 In the course of making an inquiry as to whether such a normative society continues, evidence of the loss of some classical laws and customs may be relevant, as may be the apparent creation of some new laws and customs. The inquiry remains, however, whether there continues to be a traditional normative society, notwithstanding there has been some loss, disuse or abandonment. 184 That inquiry is not properly made if it merely involves a "ticking off", as it were, of classical laws and customs identified by the evidence having regard to the evidence of contemporary practices. There remains a requirement to consider whether what has been maintained, where that is found to be the case, demonstrates the maintenance of a normative system that is rooted in the sovereignty normative system. 185 Even where a group, or even an individual, has apparently lost much, but despite the vicissitudes of life since the coming of Europeans has maintained certain laws and customs under which rights and interests are possessed, native title may still be found to exist. This is because it may be seen, in an appropriate case, that the traditional normative system in material respects has not been lost, fallen into disuse or abandoned. 186 The question is whether the evidence in any case demonstrates that claimants are possessed of rights and interests under laws and customs that are rooted in the sovereignty laws and customs. Even a few claimants, or a single claimant, may possess such rights and interests, as indeed the s 223 definition of native title allows. 187 The evidence of Professor Sutton in this case, from an anthropological view at least, supports this view. Professor Sutton, in his initial report, observed that there may be cases of "one family, or even just one person, being left standing as the legitimate holders of traditional country". 188 Whether or not all rights and interests possessed are exercised in any case would be irrelevant, as the decision of the plurality in Yorta Yorta makes it plain that it is the "possession", not the exercise, of rights that is important for the purposes of the s 223 definition of native title. 189 The question of substance that arises in the Bidjara people's appeal and in the Brown River people's appeal is whether the primary judge, in effect, failed to consider whether, despite the loss, disuse of or abandonment of certain laws and customs since sovereignty, the claimants nonetheless maintained a traditional normative system under which they were possessed of rights and interests today. 190 When one turns from questions of legal principle in relation to what needs to be proved for a court to make a determination that native title exists today, to the process of judicial assessment and exercise of judgment about these matters, the evidence led and the quality of that evidence becomes critical. Understanding, construing and appreciating the relevance of particular pieces of evidence, and how the evidence of claimants all fits together, becomes of primary importance. 191 For an appeal court it is typically difficult to engage in such a process of assessment and exercise of judgement when it has not, like the primary judge, heard the evidence and seen the witnesses. It can be difficult for an appeal court to evaluate the significance of evidence given. The primary judge has an undeniable advantage in this regard and it cannot and should not easily or quickly be disregarded. The authorities support this view. See Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 at [637]-[640]; [1999] FCA 1668 (Merkel J); Western Australia v Ward (2000) 99 FCR 316 at [222]; [2000] FCA 191 (Beaumont and von Doussa JJ); Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 at [202]-[205]; [2001] FCA 45 (Branson and Katz JJ); Yorta Yorta at [63] (Gleeson CJ, Gummow and Hayne JJ); Moses at [308]-[309]. 192 In these two appeals, the "lay witnesses" put on affidavits or statements in writing as to their evidence in chief. Sometimes, as here in the case of the Brown River people, the primary judge may not find such written evidence particularly helpful. This will often be so where a witness is not literate, or well-educated, or used to expressing themselves in writing, and the written account of their evidence may be doubted as to its completeness, reliability, or even authenticity. There may be cases, as the judge intimated in this case, where statements of evidence in chief which use common expressions raise the question whether the expressions are those of the witnesses or some other person who has prepared the statements. 193 Sometimes, not until further explored, either in chief or cross-examination, or in reply, will the significance and weight to be accorded to a witness's evidence become clearer. If the primary judge has been engaged in such a process, the primary judge obviously has an advantage over the appeal judge, who has only the transcript of what was said in the Court below from which to assess the quality and significance of the evidence and so the weight to be accorded it. All sorts of impressions may be drawn from a witness' written word, when different impressions will almost inevitably be drawn from also seeing and hearing the witness talk about the matters the subject of their written word. That is why the trial process is so important and a trial judge's task so exacting. 194 In this case, by way of further example, the primary judge received evidence from witnesses in both appeals that related to similar topics - concerned with Dreaming stories to do with the Mundagatta and the Goori Goori bird. Her Honour considered that some of this evidence at least had been gained from book learning and not from the passing on by word of mouth from elders in the community who had gained that knowledge in a similar way - thus suggesting it was not "traditional" knowledge. For example, a book by Graham Walsh was mentioned by Professor Sutton as likely to have been the source of some of that knowledge. The primary judge, aware of such information, was best able to assess the quality of evidence by particular witnesses in order to ascribe to it appropriate weight. 195 In some situations, however, appeal courts are not so disadvantaged. Where the primary judge has had to rely on and construe documentary evidence, the appeal court may be at no particular disadvantage to the primary judge and may not need to defer to the primary judge as to the construction to be given to that same evidence. See for example, Sampi at [9]. 196 But even then the position may not be so clear cut. The evaluation of written materials may well be influenced by the understanding of the other, lay evidence that a primary judge has considered. 197 In this case, in relation to the Bidjara, the evidence of Uncle Rusty, his brother Ritchie Fraser, Betty Saylor and Bob Mailman given at the 2001 preservation of evidence hearing before Ryan J was adduced at the trial before the primary judge. In some ways the primary judge is in no better position than the judges on this appeal to read and construe that evidence. However, it may also be said that her Honour, having heard the lay witnesses called by the Bidjara, was in the best position to contextualise that preserved evidence and to properly construe it. 198 These types of evidentiary and fact finding considerations are mentioned at the outset because the primary judge plainly formed the view that the lay witnesses for the claimants did not produce enough evidence of continuity to establish the maintenance of a traditional normative system today. 199 Her Honour was unable, for example, on the Bidjara claim, to find that the evidence of Uncle Rusty and others from 2001 provided the bridge from the past to the present that enabled the Court to find that a traditional normative system was maintained by the Bidjara today. 200 An important part of her Honour's reasoning in this regard was that the "tenure system" that her Honour found existed at sovereignty had been "lost" by 2001, at the time that Uncle Rusty and others gave evidence. 201 The primary judge made a similar finding about the loss of the tenure rule in relation to the Brown River people's evidence. 202 The loss of such an important rule, and the nature of the rule said to have replaced it, as discussed below, plainly influenced the primary judge in finding that whatever contemporary systems govern Bidjara society and Brown River/Karingbal society today, they are not rooted in the traditional normative system. These matters are dealt with in more detail below.

Consideration 203 About Uncle Rusty's evidence, at [41], the primary judge observed as follows: Uncle Rusty's evidence discloses his deep knowledge of Bidjara country. The difference in detail between his knowledge of the boundaries of Bidjara country and that of the other Bidjara people who gave evidence in 2001, Bob Mailman, Betty Saylor, and Ritchie Fraser, is obvious. When comparing the weight to be given to Uncle Rusty's oral evidence given at various locations throughout Bidjara country compared to the evidence in his written statement and the inferences which should be drawn from his involvement in drawing up the boundaries of the Bidjara No 3 claim, it should be apparent that his oral evidence is far more likely to be reliable for many reasons. As noted, Uncle Rusty's written statement was read to him. While he signed off on the statement as accurate he corrected it in his oral evidence by saying that Injune is not Bidjara country. The fact that Uncle Rusty could not read or write (as he said in his oral evidence) would have made it very difficult for him to use a map to draw up the boundaries of Bidjara country. By contrast, while on Bidjara country he could describe by direction, in a great level of detail, places that link one to the other, all generally moving from the western part of Bidjara country (Wyandra and Barcaldine) towards the eastern part of Bidjara country (up to the Carnarvons and Springsure). Uncle Rusty's repeated descriptions of Bidjara country as extending 'up to' the Carnarvons and Springsure, in the context of his evidence as a whole, can mean only that Uncle Rusty was saying that these places are the eastern-most extent of Bidjara country. Carnarvon Gorge and Takkarakka, which he referred to expressly as Bidjara country, are generally within the scope of this eastern-most scope of Bidjara country. However, they are located in the western part of the overlap area. The overlap area extends well to the east of Carnarvon Gorge and Takkarakka across the whole of the Arcadia Valley into Expedition National Park, east beyond Lake Nuga Nuga, east beyond the Kongabula Range and the Comet River and Clematis Creek, and to Rolleston. Uncle Rusty's evidence cannot be understood on a rational basis as suggesting that these areas are Bidjara country. To the contrary, his words about Bidjara country going up to the Carnarvons and up to Springsure, in the context of moving from west to east, and not extending to or even close to Injune, confirms that Bidjara country as identified by Uncle Rusty does not extend as far east as Injune, the Arcadia Valley, Lake Nuga Nuga, or Rolleston. Bidjara country does extend as far east as the Maranoa River, the Carnarvon Gorge, Takkarakka, and the area which might be described as the western part of the Carnarvon Range. (Emphasis added.) 204 At [32] and following, the judge also made reference to what Bob Mailman had said in evidence in 2001. This was particularly about country but it also touched on the question of "culture". Her Honour observed: 32 This oral evidence must be weighed up when considering the statement that Mr Mailman provided in March 2001, which forms part of the preserved evidence. Mr Mailman said that said he was descended from Lucy Long and Charles Mailman on his father's side and Nellie Combo and Bill Geebung on his mother's side. He said they were all born and lived in Bidjara country. According to the records, Nellie Combo was born near Augathella and William Geebung was born near Springsure at Orion Downs and they lived mostly near Babbiloora Station, whereas Lucy Long was associated with the Upper Warrego area. These areas are all west of the overlap area on land which Uncle Rusty identified as Bidjara country. 33 Mr Mailman also said the largest artwork he had done was a painting which depicts the Mandagharra [Mundagatta] (the rainbow serpent) and its journey across Bidjara country. The journey starts at the bottom right hand corner representing the '16 mile and Carnarvon and the Pump hole near the head of the Warrego'. The head of the Warrego is in the Great Dividing Range (which I infer Mr Mailman referred to as 'Carnarvon'), well to the west of Carnarvon Gorge and the overlap area. At the top left hand corner is the 'water well at the Babbiloora mission'. Babbiloora is yet further to the west again. In the bottom left hand corner is a representation of the Barngo Lagoon. Barngo is located between Babbiloora and the head of the Warrego (that is, north-east of Babbiloora but west of the head of the Warrego). Across the middle of the canvas is the Mandagharra. 34 Mr Mailman said that there is a Bidjara legend about the Mandagharra that it had lived in Barngo lagoon but left it 'when all of the blackfellas were killed, died, or moved off their land …in 1944 or 1945'. The water then all dried up in the lagoon. In the top right hand corner of the canvas is a representation of Lake Nuga Nuga near Springsure. This 'is where the Mandagharra went and continues to watch the Bidjara country'. There are 'small white dots around the painting representing the slithery movement of Mandagharra away from the area'. 'Mandagharra's tracks across the earth heading northeast away from Barngo Lagoon in the direction of Springsure can be seen in the landscape today'. There are also small black dots on the painting that represent the footprints of the Bidjara people. 35 Contrary to the submission that was put, I do not see this description as suggesting that Lake Nuga Nuga is part of Bidjara country. In fact, I consider that Mr Mailman was explaining that Lake Nuga Nuga was not Bidjara country. As I understand the legend he is describing, it is that the Mandagharra lived in Barngo Lagoon which is Bidjara country until the Aboriginal people were driven off their land. The Mandagharra then left Barngo Lagoon which had dried up and slithered to the north-east to Lake Nuga Nuga so the Mandagharra could continue to look over Bidjara country (that is, the country to the west of Lake Nuga Nuga). This is consistent with not only Mr Mailman's description of Bidjara country (Babbiloora, Barngo Lagoon, the head of the Warrego) but Uncle Rusty's description of Bidjara country running from the west up to but no further than the Carnarvons. 205 The judge further observed that the preserved evidence produced "valuable evidence" about Bidjara culture and at [43]-[65] of her reasons for judgment set out the substance of this evidence. 206 Her Honour then addressed the evidence of the "lay witnesses", being members of the Bidjara claimant group, at the trial. 207 As to Rodney Mailman, the judge noted: (1) He was born in 1953. His father was Bidjara and spoke that language, as did his father's brothers and sisters. (2) His father taught him traditional ways useful for getting food and medicine and he has hunted for bush tucker all his life. (3) His father told him about areas that are Bidjara country. (4) His father talked about Mundagatta, the rainbow serpent, which moved between waterholes including Lake Nuga Nuga and the stars, and the Goori Goori bird. He said the previous generation had "exceptional" knowledge of their lands and traditions. (5) He said that Bidjara mainly married within their own tribe, but he had read that they should not; he was not sure of the rule because his parents had been dead a long time. (6) He attended the 2006 meeting when "Bidjara elders" decided their claim. (7) He does cultural heritage clearance work in the overlap area and described having the feeling of communicating with spirits there. (8) As far as he knew, Gerry and Maxy Miller were Bidjara and spoke Bidjara, and he also knew Kevin Albury, who had told Mr Mailman's older brother, David Mailman, that he (Kevin) was Bidjara and who spoke what Mr Mailman assumed to be Bidjara. (9) He did not know where any sites of Aboriginal heritage were in the overlap area until they were located while inspecting the land on behalf of mining companies and did not know much about the land until he carried out this work. (10) He said Uncle Rusty knew a lot about the country, a lot of stations and he was a good leader to a lot of the younger people and sang Aboriginal songs in Bidjara language. 208 As to John Leslie, the judge noted: (1) He too was born in 1953. (2) He was later employed as a community worker by the Department of Aboriginal Affairs and became director of a company which acted for traditional owners in their relations with mining companies. (3) He grew up with Bidjara people and one of them, Henry Gadd, lived with his family. (4) He understood that certain areas belong to the Bidjara, including what Henry Gadd had told him. 209 As to Arwa Waterton, the judge noted: (1) She is a Bidjara woman through her mother, whose father was a Bidjara man. (2) She said traditional Bidjara burials involve wrapping the bodies in bark. (3) She found out about her family tree from government documents so she could tell her children and grandchildren about their descent. (4) Her eldest sister's uncle or grandfather was an Albury and her father was Amby Albury. They were sisters through her mother. Her eldest sister was now deceased. (5) On some government papers the Alburys are identified as Bidjara but she could not recall what those papers were. 210 As to Reginald Little, the judge noted: (1) His wife, Rhonda Fraser, was Bidjara. (2) He was previously employed by the Goolburri Land Council as a field officer, in which position he gathered statements and recordings from Bidjara elders. He did most of his work with Uncle Len Mailman and Uncle Rusty. Uncle Fred Lawton told him about the "V" sign of the Bidjara. He learnt about places that were considered Bidjara. (3) People such as Uncle Len, Uncle Fred and Doreen Fraser talked about boundaries amongst themselves. (4) He described some of the places he had been through with Uncle Len and Uncle Rusty, with Ritchie Fraser and a few other elders including Bob Mailman and with Floyd Robinson. 211 As to Sheryl Lawton, the judge noted: (1) She is Bidjara through her father, Fred Lawton. (2) She described what she had been told was Bidjara country. Her family would go tracking and hunt every day for bush tucker. They would boil up gumbi gumbi for medicine. (3) She used to go to Mount Moffatt a lot and tried to get back on her country as often as she could. She had taken young Bidjara people there to show them sites. She had been to Carnarvon Gorge as well with Pat Fraser. (4) Uncle Fred was buried near Springsure. (5) Her elders all spoke Bidjara but as young people they did not learn how to speak the language, but understood bits of it. They were now trying to learn more of it. (6) Her elders told her the story of the Goori Goori bird and the hairy men which frightened them as children. They were also told about the Mundagatta when the river was flowing. But generally children were not allowed to be with the adults who spoke amongst themselves. (7) She went to the Carnarvons as a teenager and her father told her it was Bidjara country. Her daughters had also been there to trace their ancestry. (8) She said that she still believed that the hairy men are out there. (9) While she had read Graham Walsh's book she had also heard the stories about the Goori Goori bird. 212 As to Floyd Robinson, the judge noted: (1) He referred to many locations that he said were Bidjara traditional country, including many outside (to the west of) the overlap area. (2) He is Bidjara through his father, who is Bidjara through his mother, Nell Fraser. (3) He first went to the Carnarvon Gorge National Park in 1981 when he was eight years of age. He also went with Uncle Rusty and Uncle Dusty Fraser and his grandmother, Nell Fraser. They stayed at Takkarakka and met Graham Walsh and visited lots of sites with him. Mr Walsh and Mr Robinson's family wanted to set up a keeping place for Bidjara artefacts and burials at Carnarvon Gorge. (4) As a child he was told about the junjadis, the little hairy men, by Uncle Rusty and Aunty Pat Fraser. (5) He was also told about the Mundagatta who would get you if you went swimming by yourself, including by his grandmother who said that the Mundagatta and junjadis would not hurt him as he was Bidjara. (6) He became a cultural officer for the Charleville Bidjara housing company and dealt with many people about cultural issues in that capacity. (7) He returned to Carnarvon Gorge in 1999 because of issues with vandalism and sewage. He took Uncle Rusty and other elders back there and Graham Walsh filmed them talking. They talked about Lake Wangan Wangan, the Bidjara description for Lake Nuga Nuga, the Hornet Bank massacre, Goorldathalla - the place of the wedge tailed eagle, Bandanna station, King Chooky, who saw the first aeroplane fly over the Carnarvons and a song Uncle Rusty had made up about it, and the Mundagatta who created the Carnarvon Creek and all the watercourses on Bidjara country. He helped Uncle Rusty and his cousin Lionel to arrange Bidjara dancing at Carnarvon Gorge National Park where they have danced now many times. (8) He spent a lot of time with Uncle Rusty and Bob Mailman and learnt from them, including stories about how the galah became pink, about the Mundagatta, waterholes and Bidjara country. Uncle Rusty taught him about acknowledging ancestors on certain land, that birds were Bidjara ancestors, the spirits on country, the Bidjara "V" and star signs, and the six finger and toe carvings, as well as bush medicines and hunting. Uncle Rusty also told him about proper Bidjara marriage between different skins, possum and red kangaroo, and also that a person cannot marry a person of the same skin or eat the meat of their skin. (9) Mr Robinson also gave evidence about the curlew and the Goori Goori birds, considered "death birds"; hunting budburra; artwork near Carnarvon Gorge; that "before we were people we were bird", how they had come there with the rainbow serpent from the stars; how the Carnarvons relate to Dreaming story ceremonies. (10) He was not fluent in Bidjara but knew a lot of individual words. (11) He described the extent of Bidjara country, particularly on the basis of what Uncle Rusty had told him. (12) He said that people got different parts of country which "relate to different mobs, different bigguns, totems and things like that, or different families associated with different camps here and there, birthplaces, burial places, ceremony places". Uncle Rusty, Uncle Bob and his grandmother and father had all told him this. 213 As to Keelen Mailman, the judge noted: (1) She was born in 1966. Her mother was Betty Mailman, sister of Bob Mailman. (2) She manages Mount Tabor Station for the Bidjara people. Her grandchildren live with her and she teaches them Bidjara language, culture and traditions. (3) Her mother taught her Bidjara women's business and she is fairly fluent in Bidjara which she learnt from her mother. (4) Her mother told her Carnarvon Gorge was Bidjara country and was a special place rich in meat, water, fruits and medicines and was also a burial place for mummified bodies. (5) Her mother told her Carnarvon Gorge was the home of the junjadis or hairy men who look after the Gorge. (6) Uncle Bob Mailman also told her Carnarvon Gorge was Bidjara country, as was Springsure where her grandfather William Geebung was born. His father Dan Mailman rode from Augathella to Springsure to fight someone who said Springsure was their country. (7) She was also told by Aunty Janeo Mailman about the extent of Bidjara country and gave evidence about Aunty Janeo Mailman resisting mining, Uncle Frank Geebung, what Uncle Fred Lawton spoke about in terms of connection with the Carnarvon Ranges and other places. (8) She said Uncle Norman told her about the Bombarra totem (for the brown snake) which was the Geebung totem. She was also told by Uncle Norman that they needed to fight for their country and she heard about the stories of the Mundagatta and Goori Goori bird. (9) She said Uncle Rusty lived with her at Mount Tabor for a few years before he died. She said Uncle Rusty was active in Bidjara culture and spoke the language fluently and told her of the time of her people, where they came from, the families that were related, sang Bidjara songs and conducted dancing. (10) She was descended from Bidjara ancestor Nellie Combo. (11) She had been involved in recovering the bodies of Bidjara people from the Queensland Museum for reburial on Bidjara country. (12) She said that there was men's business and women's business. She emphasised the importance of language to her people. She also got to learn from her mother about bush fruits and how to live off the land, including about gumby gumby from Uncle Rusty. (13) She "calls out" to ancestors on country, as she was taught to do. (14) Uncle Rusty was strong and passionate about teaching the younger generations Bidjara dance and song. (15) Her own first visit to Carnarvon Gorge was during the hearing. (16) She explained that she knows more language and how to live off the land than, for example, her aunty who is 61 years of age "because of the things that happened back then. They were told not to. It was just a privilege for me to get to learn to live off the land and track our foods and learn all our stuff, and our language". She also said that she called elders such as her mum's first cousin, "Aunty". She said that was by way of "respect". (17) She said also that, to her, all Bidjara people can hunt, camp and move around on Bidjara country without distinction, even though the old people might have had different camps. She said there were no subclans of Bidjara. She considered that if you were Bidjara, you were Bidjara. 214 As to Raymond Robinson, the judge noted: (1) He was born in Brisbane in 1946 and was Bidjara through his mother, Nell Robinson (formerly Fraser). (2) His mother's father was John Fraser and her mother was Ada Lang, both Bidjara. Uncle Rusty was his mother's younger brother. (3) He says that from when he was about one year of age he grew up at Charleville and was taught Bidjara ways by his mother and aunties and uncles. (4) He has been involved in Aboriginal organisations, both Bidjara and general, for many years in different capacities. (5) He gave evidence about how Lake Nuga Nuga got its name, which he learnt from Uncle Dusty Fraser. (6) He also gave evidence about the extent of Bidjara country. (7) He said Kevin Albury's mother was a woman called Maggie Shepherd who was Bidjara. (8) He said he also knew Amby Albury and Sam Albury from around Charleville and Augathella, who both spoke Bidjara language and were, as far as he knew, both Bidjara people and he used to call both of them "Uncle". (9) He gave evidence about the Mundagatta, the rainbow serpent, that his mother used to mention. (10) His uncles told him about the Bidjara "V" sign, the star and the six toes which are across Bidjara country including at Carnarvon Gorge. (11) He first became involved in protecting the Carnarvons in the 1980s when Bidjara remains were removed and displayed in Roma. His involvement had continued since then. (12) He said the Bidjara No 3 claim had been drawn up by Uncle Rusty, Pat Fraser, Joe Lawton and Bernie Mailman in 1996 and he was not involved in that meeting. However, he was involved after that in a meeting in Toowoomba at the Goolburri Land Council office which Bernie Mailman, Joe Lawton, Patricia Fraser and Uncle Rusty attended which was organised for all traditional owners. (13) He noted that Bill Geebung Senior worked on a number of properties in the overlap area and Uncle Fred Lawton when he was between 80 and 86 lived in Injune so he could go and visit country, like Wallaroo and Carnarvon Gorge. (14) He said that Amy Miller said she was Wadja, which in Bidjara language means to go. He said or inferred that Jessie Turner, Amy Miller and Fred Taten were Bidjara. He also considered Jemima was Bidjara. 215 As to Brendan Wyman, the judge noted: (1) He was Bidjara on both his mother's and father's side being descended from the Frasers, the Lawtons and the Geebungs, his apical ancestor being Nellie Combo. He was born in 1966. (2) He described Bidjara country. (3) He had been taught his people's ways since he was born when he was rubbed with budburra fat which was a tradition for his people. He was taught how to hunt budburra and prepare it for cooking and he has passed that knowledge on to his son, nephews and others. (4) When working for the Aboriginal Legal Aid Office in Charleville, a box turned up with a stone in it, which they showed to Uncle Rusty who said it belonged to Carnarvon Gorge. He and Uncle Stan Lawton arranged for the stone to be returned to Graham Walsh at Carnarvon Gorge. He said the Gorge was of great significance to Bidjara people with artwork and places of significance to women and areas where only women should attend. Uncle Rusty had told him the Gorge contained women's places but did not give him any details. (5) His grandmother told him stories about the Warrego River and the Mundagatta; as well as a big scar tree that was still there. He also was taught how to catch yabbies and hunt kangaroos. (6) He also described how if you are on another man's country, you cannot go and hunt there and you must let him know if you want to hunt. You also needed to share what you took. (7) He said the Bidjara "V" sign was all over Bidjara country. (8) Of his family relations he explained that his father's brothers and sisters are his uncles and aunts on his mother's side and their siblings are his brothers and sisters on each side and added that you cannot marry within the family. (9) He said his people believed that they come from the stars and that's how they all started off. His grandmother described a willy wagtail as a messenger bird. He also described the Goori Goori bird as a ghost bird. He said his totem was the red kangaroo and on his grandfather's side they are carpet snake. (10) He said he understood enough Bidjara language to know what was being said and taught others what he knew and taught respect for elders. (11) He said he was never told about neighbouring tribes when he was growing up but he knew that to the south-west there were various groups and to the south another. (12) He described Uncle Rusty as "more or less" the last remaining man that knew "that stuff" - tribal knowledge. He said after Uncle Rusty he had to get back home to keep his knowledge going, to reaffirm it and to reiterate stuff that he had been told and taught. (13) He did not believe that any Bidjara person had greater or special rights in any part of Bidjara country although he personally felt affiliated with Babbiloora where his uncles had worked, whereas the Geebungs and Gadds were more associated with Springsure. 216 As to Patricia Fraser, the judge noted: (1) She was born in 1963, her father was Archie (Dusty) Fraser, who was a brother of Uncle Rusty Fraser. (2) Her grandfather, Jack Fraser, was born at Babbiloora in 1887 and was very strict and knowledgeable about Bidjara laws and customs. His traditional totem was the red kangaroo which he inherited from his mother. Her father was a stockman who worked on numerous stations. (3) While she did not learn the Bidjara language, her father always used Bidjara words to describe plants, animals and special places. He also taught her to track and find traditional food, although her brothers were taught a lot more than she was because she was not allowed to go hunting or to special places with her father. Her father would pass information on to her mother and her mother would teach her if certain customs required women's business. (4) Her mother did not know about her traditional culture as she was removed when she was a little girl. She was a Mandandanji woman. (5) She said her father gave her her identity and connection to her traditional land. (6) She was told by her father and uncles through their stories that Carnarvon Gorge was a very significant place to the Bidjara people. (7) She said her father told her the story of the Mundagatta and how it created the Carnarvons. Her great aunt, Jessie Turner, also told her stories about why a certain bird can be heard screaming through the Carnarvon Gorge. When she was little on the stations her father also told her the story of the Goori Goori bird when they used to look up and see the Milky Way. (8) She visited Carnarvon Gorge in 1981 on the same trip as Floyd Robinson and felt a spiritual connection and could feel her Bidjara ancestors speaking to her. More recently she stayed with Keelen Mailman at Mount Tabor and did a tour of the Carnarvon area. (9) She described a meeting of people at the Land Council about the native title claim that the Bidjara were putting on. (10) At that point she had not heard of the Karingbal and did not hear about them until 2003. She had not heard of the Karingbal being a subclan of the Bidjara. (11) Her brother, Lionel Fraser, was involved in training the Bidjara dancers with Uncle Rusty. (12) Her father had worked in the overlap area, she says she knew it from when she was a child but since the NTA she had been involved in cultural surveys of the area as well. She had been to Carnarvon Gorge twice before the hearing. (13) She considered the work by Breen to be confused when he talked about Jessie Turner (formerly Fraser) being Wadjigu. (14) She gave evidence about Bidjara customs and laws including the cleaning of budburra; her grandfather Fraser who was red kangaroo; the skin having four totems; that part of the culture was being buried or wrapped in bark; her father would not tell the girls certain things but would inform her mother who would tell the girls; Aunty Jessie told her a story about the Gorge. (15) That so far as the impact of European settlement was concerned, indigenous people like the Bidjara changed, "they modified themselves", to make sure that they continued connection. She said they were moved off country and there were strict rules on whether they could speak language or carry on traditions. But they were lucky because her father never left the country he grew up on and "we practised and lived it every day". She explained that for all these reasons, the system of meats and skins was no longer followed. (16) She did not agree with the proposition that her father worked outside Bidjara country. (17) She knows Bidjara words but does not speak the language. (18) When she enters someone else's country she speaks to the spirits and asks permission. (19) In respect of women's places, she said they can be recognised by carvings on walls. (20) Like others, she believed that no particular Bidjara person spoke for parts of Bidjara country and each had rights in the whole. 217 As to Bob Mailman, who was deceased at the time of the hearing, although his statement went into evidence, the judge noted: (1) He was a Bidjara man who was 74 years of age when he made his statement on 21 February 2008, having been born in 1934 at Augathella. (2) His father was Dan Mailman and his mother was Cissy Geebung. His great grandmother was Liza (a contemporary of Hector Thompson and other apical ancestors). His grandfather on his father's side was Charles Mailman, also known as Miller, and his grandmother was Lucy Long. On his mother's side his grandparents were Nellie Combo and Bill Geebung. (3) His parents and grandparents were all born and lived in Bidjara country and were Bidjara people and he knew this because throughout his life he was told this by them. (4) Bidjara people have a deep respect for their elders. (5) He grew up speaking the Bidjara language fluently as they spoke it in their family. He taught Keelen Mailman the Bidjara language. (6) The rules about marriage have evolved over time. Originally people were divided into subgroups, however that has now evolved into "an interlocking system of family groups". The rules as to marriage remain much the same as in the past. If there is any breach then it is dealt with by social ostracism. Some people have married wrongly but they subsequently indicate they believe they came from a different group so as not to appear to be in breach of Bidjara law. (7) In the Carnarvon Gorge there is a two finger sign painted on the walls which he was told by Uncle Fred Lawton was a Bidjara sign. (8) He has provided Bidjara language names for children, so that they can have an English as well as an indigenous name. (9) He has ability with Aboriginal art using ochre and traditional methods and depicts stories of the Bidjara people, including the story of Mandagmarra (Mundagatta) as told to him by his father and grandfather and as he taught his nieces and nephews. 218 As noted above, a number of experienced anthropologists gave expert testimony at trial. The appellants, including the Bidjara, now rely very much on opinions expressed by Professor Sutton, who was called by the State, in advancing their cases on appeal to the effect that relevant "continuities" were not accorded appropriate weight by the primary judge. 219 Professor Sutton provided an initial report and a supplementary report. The primary judge relied on a number of Professor Sutton's opinions in dealing with contentious issues. 220 Dr Hutchings submitted an initial report and four supplementary reports dealing with the Brown River people's claim as the "true Karingbal". She concluded that, as descendants of the apical ancestors Albert Albury Senior, Maggie Suy See and Mick Freeman, they held native title in the overlap area and formed a distinct society with a continuing observation of traditional laws and customs. She considered that a competing claim by the descendants of Jemima, who was not Karingbal, could only refer to interests outside the overlap area. She suggested they may have been of Wadja identity. Her brief did not require her to comment on any Bidjara native title interests. 221 Dr Sackett prepared one report for the Karingbal who claimed descent from Jemima, which concluded there was an absence of evidence as to what tribe or language group traditionally occupied the overlap area. 222 Professor Langton, called by the Bidjara, provided a report (incorporating two earlier reports) in which she concluded there was sufficient material to support the view that Bidjara country extended into the overlap area and that the descendants of the Bidjara continued to look after their country in culturally appropriate ways and held traditional knowledge, especially of significant places in the overlap area. She considered that the Brown River claimants were in fact Bidjara people, and that Jemima was probably a Bidjara ancestor. She also considered the evidence indicated Karingbal was not a traditional language of the overlap area, but rather had migrated from its original country elsewhere, in the Mackenzie River area. 223 As to Professor Sutton's initial report, as supplemented by his second report provided after the direct evidence of claimants had been received, the primary judge noted, at [367], that his opinion was also that the Karingbal people forming the Brown River claim group did not constitute a distinct society but rather were a subgroup of a wider society. Nevertheless their identity and location had persisted since colonial times. Professor Sutton also concluded, as discussed further below, that the Brown River people no longer practiced most of the sovereignty (or classical) cultural traditions which they claimed as theirs. 224 The judge noted that Professor Sutton suggested that, while Jemima had strong personal connections to the overlap area, it was unclear what her language and country was, and her daughter Amy Miller's descendants were most likely Wadja people. 225 Her Honour noted Professor Sutton was satisfied that Bidjara country included the upper Warrego River system as far up as Carnarvon Gorge at sovereignty, but not the Brown River catchment or Planet Downs pastoral station; and that he considered that Bidjara people continued to have a close connection to Carnarvon Gorge; but that Bidjara country did not extend further to the east. 226 Her Honour, at [369]-[370], regarded the joint report of the anthropologists, prepared before trial following a conference between them, and noted what they said about the Bidjara: 369 All anthropologists agreed with Professor Sutton's conclusion that the Bidjara traditionally identified with the Warrego River system as far up as the south western edge of Carnarvon Gorge and inside the Gorge, which is not in the Warrego River system, and with what is now Carnarvon National Park. Doctors Sackett and Hutchings agreed with Professor Sutton that the Bidjara identified with a large number of other places further to the west, including those identified in Rusty Fraser's evidence. Professor Langton differed on this last point, finding the evidence of other witnesses persuasive about the extension of Bidjara country across the overlap area and to its east. 370 Professor Langton considered that Bidjara songs, dances and stories have continued since sovereignty and that any difference in practices through the generations is explicable and does not amount to a severance of continuity. She acknowledged there had been revitalisation of some traditions, but noted that this did not imply recent invention. Rather, revitalisation is a legitimate means of maintaining Bidjara culture within a contemporary setting. Professor Sutton agreed with this latter point, but required supporting evidence on the other points. Dr Hutchings also required supporting evidence, while Dr Sackett gave qualified agreement with some assertions of Professor Langton. (Emphasis added.) 227 As to society and culture at sovereignty, at [375], the judge outlined the substance of the anthropological opinions. 228 Her Honour then proceeded, at section 7.1.2 of her reasons, to deal with the topic of "Continuity from sovereignty", which is contentious in this appeal by the Bidjara. 229 Her Honour considered the opinions of Professor Langton and Professor Sutton, at [377]-[388], and observed as follows: 377 Professor Langton considered that: the Bidjara people really do know their cultural heritage despite the impact of settlement in the area, the impact of government decisions, the Aboriginal Protection Act, the removals… 378 Professor Sutton made the following general observation: I think all of the groups represented here come to the court with a mixture of continuities with their ancient past, radical discontinuities with that past, transformations of things that were there and are still here but are changed in form or practice, and thirdly, what you might call restorative attempts in relation to the culture revitalisation… 379 Professor Sutton identified several absolute continuities from pre-sovereignty Aboriginal society apparent in all claimant groups in these terms: • One's primary entry into a land holding group remains that of descent from an ancestor. Every infant is born into some group or another …competence, presence, knowledge, responsibility are not about the entry point into the group but the rise to a strong position in the group. • The interest in land is always communal and not individual, it's shared. And the way it has been shared has changed through time in my view, but the basic principle of a communal entitlement to the estate remains unquestioned. • The land is not considered to be a chattel, you can't bequeath it in a will to your children, you can't exchange it, you can't sign up and pay your dues and become an owner. In other words, the estate itself is regarded as inalienable, it's not a market object. • All assert a spirit connection with the country, principally to their own ancestors and their old people. • They believe they have a responsibility to protect the tombs of the old people within the area that is the subject of this matter. • All assert an incest taboo of some sort. 380 Professor Sutton also identified several continuities which had been transformed to greater or lesser extents from pre-sovereignty Aboriginal society apparent in all claimant groups in these terms: • All groups have an emphasis on extended family, that is a distinctively ancient thing. They have an emphasis on valuing kinship - kin-relatedness as a basic positive. An example of this is the development of the Auntie and Uncle titles which developed and evolved out of the old values, but it evolved in a modern situation where people are often - not actually sure how they're related to someone or they haven't been brought up to think of themselves as being specifically related, but represent a continuation of the shared norm of valuing both kinship and seniority. • Seniority is another domain and we've heard evidence of the shared value of respect for elders. • Some emphasis on super natural domains, which again is a continuity, [whilst noting that the 'eungies' and other 'little hairy men' referred to by witnesses] are at one end of the spectrum in terms of the power and profundity of spiritual beings in the ancient Aboriginal systems… the dreamings or stories, or histories as they're called in far western Queensland, they're not just going to frighten you at night or maybe do something good for you when you're sick, they actually created the world. That's the big difference, and they formed the rivers and the valleys and so on, and the story of a snake moving along the river system being specifically heavily located in a permanent water body, that's all classical ancient Aboriginal thinking… It's unsurprising that it's here. [Specifically], there has been continuity of transmission of the rainbow snake entity and knowledge and respect for it and awe of it, with some break in the way the language was learned. 381 Discontinuities are also apparent, as Professor Sutton described: • There is no evidence of those particular two structures [kin superstructures of skins and moieties] still operating as norms for the selection of marriage parties, although they are part of the cultural memory. • Another area where there has been a lot of loss, and this applies to all groups, is in the ability to name places in the country in language … . But for there to be such a loss of place names has to be put against whether or not there has been a loss of the meaning of input to those places; a separate issue. … 384 Professor Sutton also identified four types of social histories of Aboriginal people in this region since 1860. As he put it: • One is a strongly pastoral based experience and some families have maintained that up until the present… • Others were incarcerated into larger communities under the Act - and Woorabinda is the key one here. So those people's experience of growing up and living together is very much more centralised, very much in terms of mixed family groups because there are hundreds of people instead of just six or 10 on the station… But their movements are very restricted. Moving between communities was controlled… • Thirdly, there's the tenant camps - in this case, they've been referred to as yambas or yumbas. These were the town reserves. Those people that were, in a sense, midway between the station people and the mission people and often moved between the two. Sometimes they were seen as a pool of labour and people would come and pick up labour just for the day, sometimes. • Cities, Rockhampton and Brisbane particularly. 385 Professor Sutton observed that one thing missing from the evidentiary landscape in this case was any systematic study of the norms of kin relationships which made it difficult to assess the strength of this continuity or discontinuity. Only Dianne Evans gave evidence demonstrating that she 'retains an ancient classificatory kinship system in her mind' whereas the balance of the evidence about this was very patchy, although the weight of it suggested that the system had not continued. 386 Professor Sutton also made this point (Professor Langton having made observations to similar effect): [T]he identity of Bidjara seems to have persisted and Gungabula, which was still remembered obviously in the 1960s and seventies, and [Nguri] doesn't seem to have been quite as strongly remembered. They seem to have both been, if you like, submerged in a greater Bidjaraness. And that kind of process has occurred all over Australia and I could cite a dozen cases of something similar and it's often called - well, I call it conjoint succession. In other words - particularly when there's radical depopulation, which has occurred virtually everywhere, the surviving people needed to - were more or less forced to get together… 387 Professor Sutton stressed that incorporation of other groups, in this case the Nguri and the Gungabula into Bidjara, had to be voluntary as 'annexation of other people's country is utterly contrary to Aboriginal law'. 388 Professor Langton stressed that over the last 100 or so years the Bidjara 'have remained a very strong group' and acted to protect the cultural heritage sites they claim as theirs and to pass on traditional knowledge. (Emphasis added.) 230 The primary judge, at [390], observed that, other than Professor Langton, the anthropologists considered the uniformity of the claimed rights and interests of all Bidjara people to all Bidjara country unusual, as most traditional Aboriginal societies were marked by notions of subareas in which particular groups had special rights and interests (for example, if a person is born in a particular part of their country). Her Honour noted, however, the evidence of Professor Sutton that he knew of distinct languages which have only one estate assigned to them and so, in principle, it is possible for there to be such an arrangement. He considered that in this area, however, one would normally expect there to be a series of patrilineal clan estates. He also considered that internal differentiation in a number of areas collapsed due to population collapse and external impacts, and those groups maintain those areas as a single entity with no internal differentiation. Her Honour noted that Professor Sutton concluded, on this topic: So I think it's an expectable reaction to (a) population decimation, (b) cultural change, etcetera, that you do - you can end up with a single language area with no internal subdivisions, other than family history associations with particular parts of it. 231 In section 7.1.3, the primary judge also had close regard to what the experts said about language, including that it has important spiritual and cultural implications, but that under the impact of colonisation many languages were wiped out and replaced by one, surviving language which had spread throughout a region. Thus, subsequent generations might speak a language which is different from their country identities. 232 Her Honour noted, at [398], that when asked whether continuity of language was critical to the continuation of a group holding traditional laws and customs in common, Professor Sutton agreed that such continuity was present for the Bidjara, but not for the Karingbal. Her Honour noted, in that regard, that Professor Sutton stated that, in one case, the evidence of continuity of a normative practice is there, and in the other it is not, but that he also added: They're not normative practices to do with things like the passing of rights and interests to the next generation … nor about how does one acquire the authority to speak for the country. 233 Professor Sutton added, her Honour noted, that where language has continued, he saw it as a behavioural reflection that he would regard as a very typical, classical view, which is that one's possession of language means also one's possession of the "sacred estate" that comes with the language. So, he said, it is not just a matter of continuity of secular culture. Her Honour noted, at [399], Professor Sutton's evidence that language is a "sacred endowment" and the reason why, in the Aboriginal world generally, as he understood it, one cannot take another person's country is that it is actually about supplanting the spiritual identity of others. 234 Her Honour also noted, on this particular topic, that Dr Sackett explained that one sees the reduction in the knowledge of language but the maintenance of an identity and relationship to that language name, which becomes the "tribal" name, in many instances. He did not see that reduction "as fatal to native title". 235 Her Honour also recorded that Dr Hutchings agreed with Dr Sackett and observed that the emphasis in the evidence on language had been disproportionate to its importance. 236 In dealing with "Some other issues", at section 15 of her reasons, the judge referred directly to the question of language. As to the Bidjara language, her Honour noted that it continues to exist both in a form transmitted orally by parent to child (for example, Keelen Mailman learnt from her mother and is a relatively fluent speaker) and in a form which Gavan Breen documents in his linguistic work. Her Honour noted that many of the Bidjara have used Breen's work to acquire some Bidjara language, mostly words and simple phrases. 237 The judge, having regard to the evidence, dismissed the notion advanced by Mr Robinson for the Bidjara that the fact that a person might have spoken Bidjara means that they must have been Bidjara. By way of example, her Honour observed that Kevin Albury spoke Bidjara, however no contemporaneous record suggested he ever considered himself to be Bidjara. Indeed, he considered himself to be Karingbal. 238 Her Honour, having regard to the evidence, also dismissed the notion that where a person was born was also determinative of their status as belonging to one group or another. In the case of Mick Freeman, for example, her Honour rejected the proposition that because he was born outside the overlap area, in another place, he could not be Karingbal. 239 Her Honour then said that the first key inquiry in the proceeding was as to what might reasonably be inferred to have been the normative system of law and custom which applied in the overlap area at sovereignty. 240 In that regard, at [506], on the basis of the anthropological evidence led, the judge accepted that the various groups in the region, at sovereignty, including the Bidjara and the Karingbal, were subject to a normative system of traditional laws and customs that included: a four section class system; exogamous marriage between two marrying classes or moieties; a combination of diverse totems associated with these marriage classes that were inherited (although it was unclear on the evidence whether this occurred through the mother, father or both); transmission of rights and interests in language and country inherited through descent (although it was unclear on the evidence whether this occurred through the mother, father or both); totemic beliefs; punishments and reprisals; trade with other groups; ceremonial meetings with other groups; male initiation practices; seasonal hunting practices; mourning practices including smoking ceremonies and the use of mud daubing and ritual cutting to indicate a period of mourning; increase rituals; female birthing practices; complex rituals associated with death and burial (burial caves, burial cylinders); right to be buried on country; and creation stories/mythologies. 241 Her Honour accepted the submission of the State that, to this list, the following features of the normative system or systems that then existed should be added: (1) that rights in relation to land could (probably) be acquired by adoption or rearing up; (2) for membership of the "landholding group", descent from an apical ancestor must be accompanied by recognition and acceptance by the other members of the group; (3) the system of land tenure was characterised by the following: (a) communal title; (b) inalienability; (c) the presence of a number of smaller, local groups or landholding units within the overall area; (d) differential distribution of rights as between those local groups; (e) a permission system (albeit subtle, as explained by Professor Sutton); (4) a system of social organisation involving: (a) descent groups; (b) kindreds (that is, a mixture of people to whom you are related by blood and people to whom you are related by marriage) and kinship rules (behavioural norms between kin; terms used to refer to kin); (c) matrilineal moieties in four sections (with Bidjara having an "additional complexity"); (d) marriage rules which were prescriptive governing the one section that one should ideally marry into, rather than prohibitive; (5) respect for elders; and (6) taboo on the names of the dead. 242 Her Honour provided one qualification in accepting these additional features which concerned the differential distribution of rights among local groups. At [514], she referred to what Professor Sutton said: differentially distributed rights. As I said before, yes, if it's a substantial area country, it would have consisted of a set of estates. And those estates would have had various formal links with each other. Local groups or land holding units: yes, probably. Subgroups: yes. Other than estates which are land holding groups based on descent, right through most of Australia where I've worked, you also get what I call environmental clusters. That is the people who come from the same environment. That is not where they live, but where their spirit country and their soul country is. And so there would have been environmental clusters like that; for example, you know, mountain people, forest people, people from the Bidjara country... Now, those groupings frequently disregard language. In other words, they're not subgroups of language groups. They are actually environmental clusters and they frequently include one, two, three, four different languages and tribal areas, if you like, in their memberships. They play a significant role because these are people that live in close proximity and therefore develop trust, regardless of differences of language ownership. (Emphasis added.) 243 The judge, at [515], then noted that the areas of the claims of the Brown River people and the Karingbal were far smaller than that of the Bidjara and that the overlap area constituted the majority of the native title claim of the Brown River people and Karingbal, but only a small proportion of the claim of the Bidjara. It was in this context that her Honour then observed that: In a region as diverse as that claimed by the Bidjara it is inconceivable that there would not have been a relatively large number of local groups based on familial and environmental factors. Even in the much smaller area claimed by the Brown River people and Karingbal there is, as Dr Hutchings said, evidence of at least two groups, one for the north and another for the south. 244 In other words, she accepted Dr Hutchings' opinion in respect of the latter point and Professor Sutton's opinion, including about "environmental clusters", in respect of the former point. 245 Relying principally on the opinion of Professor Sutton, the judge concluded, at [528], that under the normative systems of law and custom that applied in relation to the overlap area at sovereignty, Carnarvon Gorge and Carnarvon National Park fell within Bidjara country, with Carnarvon Gorge being recognised by the Bidjara as an area in which other tribes, including but probably not limited to the Karingbal, had rights to enter and carry out burials and associated rituals and to look after their burial sites, and rights to enter for the purpose of intertribal ceremonies. 246 Otherwise, she concluded that at sovereignty the overlap area, excluding Carnarvon Gorge and Carnarvon National Park, was Karingbal country. 247 The significant question that then arose for the judge was not whether a Bidjara society had continued since sovereignty, but whether the Bidjara had maintained a connection with the relevant Bidjara part of the overlap area since sovereignty by continued acknowledgement and observance of pre-sovereignty laws and customs - that is, under a normative system. 248 On the continuity point, the judge, at [541], accepted that it was not necessary for claimants to prove that there was a body of persons who are wholly united in their acknowledgement and observance of traditional laws and customs. Her Honour accepted, correctly, that this is not what was meant in Yorta Yorta. 249 As noted above, her Honour dealt with the question of continuity of the sovereignty normative system under eight broad topic headings: land tenure system; group membership, social organisation; spiritual beliefs and practices; creation stories - Mundagatta; taboo on the names of the dead; ceremonial life; and language. 250 In relation to the "land tenure" system, and informed by the anthropological opinion discussed above, the judge rejected any proposition that, at sovereignty, all Bidjara held the same rights and interests in the whole of Bidjara country, that is to say, in each part of Bidjara country, as the evidence suggested they do today. 251 Professor Sutton expressed some difficulty with the idea that up to 10,000 Bidjara people, on contemporary calculations of the size of the Bidjara group, might hold undifferentiated rights and interests in relation to the whole of traditional Bidjara country. This concern was shared by her Honour, for, at [629], she accepted the State's submission that: The idea that all 10,000 Bidjara people hold undifferentiated - and therefore unregulated - rights and interests in the whole of such area of land and waters as may properly be found to be Bidjara country is not consistent with what can reasonably be presumed to have been the normative system in place at sovereignty. 252 Prior to accepting that submission of the State, the judge, at [628], expressly found that the evidence supported the inference that "this important aspect" - differential rights and responsibilities in land based on familial/environmental clusters - "had been lost by the time of the generation of Uncle Rusty Fraser, Bob Mailman and Betty Saylor". 253 This is an important finding and is not directly challenged on this appeal. 254 The judge accepted the submission of the State, at [628], that there was no evidence of continued acknowledgement or observance of these aspects of law and custom given at the preservation of evidence hearing in 2001. Her Honour noted that the "basic rule" now was that the whole of Bidjara country belongs equally to all Bidjara, which her Honour considered to be in "stark contrast" to the position that would have existed under traditional Bidjara law and customs. She obviously accepted the evidence of Professor Sutton, or relied on that evidence, that the passage of time, the displacement of Bidjara people from their country during European colonisation and the need to find work elsewhere would all have impacted on the continued observance of this aspect of traditional law and custom. Her Honour added, "but the relevant fact is that it has been entirely lost and was probably lost by the early 20th century". 255 In context, the primary judge's finding in this regard must be taken to represent a finding that the current "tenure rule", to the effect that all persons who are descended from a Bidjara ancestor have an equal say in the whole of traditional Bidjara country, is a new rule and not an acceptable adaptation of the old, sovereignty rule. 256 It may be said that the fact that a group of claimants no longer propound laws or customs by which rights in relation to land and waters arise under a differentiated system of local or estate groups and environmental clusters, or the like, as their ancestors apparently did at sovereignty, does not necessarily mean that the current system by which rights and interests in relation to land and waters are allocated amongst them is not rooted in the pre-sovereignty system. 257 Fairly understood, the point made by Professor Sutton was that while people traditionally had spirit country - which on the evidence might include the country where their totems were to be found - they also lived their lives in more prosaic groupings, drawing appropriate resources from the country, which groupings he called "environmental clusters" (and which, he said, might include people from different language groups). 258 What is obvious in the evidence adduced about the "land holding groups" referred to in some of the anthropological opinions, is that primary attention appears to have been directed to the rights that members of a larger group, such as a language group, might hold at sovereignty as members of an "estate group", without any detailed consideration being given to their rights and interests as members of "environmental clusters". The rights of the latter groupings would appear to include the rights to live on and enjoy the resources of areas outside the area of the "estate" or "estates" of those persons. 259 In this regard, native title rights and interests capable of recognition under s 223 NTA are those "in relation to land and waters" that arise under traditional laws and customs. It may be considered too limited an inquiry simply to ascertain what the rights and interests are in a claim area on an "estate" group or spiritual connection basis, without full regard being paid to the traditional rights and interests of persons to use and occupy land and waters in different groupings for economic purposes in the course of their daily, secular lives. See, for example, the account of the evidence given by the late Professor Kenneth Maddock in Ward 1998 at 528; and discussion in Banjima People v Western Australia (No 2) (2013) 305 ALR 1 at [159]-[160], [695]-[696]; [2013] FCA 868. Indeed, for these reasons, use of the expression "tenure systems", is probably best avoided altogether when describing traditional rights and interests under the NTA. 260 In particular, it does not necessarily mean that, in every circumstance where a presumptively patrilineal or patrifilial "estate" group model of rights in relation to land and waters is shown to have operated pre-sovereignty, a claimant application is bound to fail where the contemporary rule allocates rights and interests by virtue of a person's membership of a claimant group based on cognatic descent, where all members are recognised as possessing similar or largely similar interests in the whole of the group's traditional country. Apart from anything else, a question may arise, as the plurality said in Yorta Yorta at [82], about what it is that is said to have changed or been adapted since sovereignty. If local groups and environmental clusters, for example, are shown by the evidence to have "coalesced" (as Professor Sutton's evidence suggested may happen), it may be that a contemporary "tenure rule" can be explained by the exigencies of post-sovereignty depopulation and population movement, and seen as an acceptable adaptation of the pre-sovereignty rule designed to ensure appropriate people spoke for country, protected sites, carried on the Law, and enjoyed the resources of the country, for example. For this reason, reference to the "tenure system" as it operated at sovereignty may be misleading and likely to lead to a false inquiry. The question would remain, in such a case, whether the contemporary "tenure system", for s 223 purposes, can still be shown to be rooted in pre-sovereignty law and customs. 261 In each case the evidence before the Court will dictate whether any relevant change in the "tenure system" is an acceptable adaptation of a pre-sovereignty rule, or a new rule reflecting a lack of continuity of the traditional normative system. 262 While, in this case, the evidence of Professor Sutton may have provided context for consideration of the question whether or not the contemporary rule governing the exercise of rights to country was but an adaptation of a pre-sovereignty rule, it is difficult in the circumstances to second-guess her Honour's finding that the old "tenure system" had been lost by the early 20th century and the clear inference that the contemporary rule bestowing a similar right in relation to country on each and every Bidjara person was a new rule put forward by claimants today, following a complete break in continuity of the old rule. No evidence to explain the evolution of such a rule was offered by the preservation evidence given in 2001, or the lay witnesses at trial. 263 In all the circumstances, the Court is not satisfied that it can be said that her Honour erred in the findings she made concerning the contemporary "tenure" rule. It appears on the face of it not only to be a "discontinuity" from the sovereignty rule, but an "important" discontinuity. 264 While her Honour had close regard to the evidence of the anthropologists concerning the continuation of other pre-sovereignty rules in relation to the other seven topics, including membership of the Bidjara group, a section system and exogamous moieties, separate men's and women's business and spiritual beliefs and practices - which the judge also considered evidenced discontinuities - her Honour accepted that there was an element of continuity in the Bidjara's continued respect for elders and accepted that Floyd Robinson gave evidence of traditional narratives which had been passed on to him by his elders. 265 Taking the evidence as her Honour found it, however, she found that even taking into account Floyd Robinson's traditional narratives, they did not (of themselves) demonstrate the maintenance today of a traditional normative system. 266 The judge accepted the submission of the State that the evidence did not directly address the relevant inquiry because it did not offer answers to relevant questions: For example, do the stories relate to how rights and interests in land are held and regulated? Do they relate to particular sites? Do they convey information having a normative content? Are they known by most of the group or is knowledge of them confined in some way for any particular reason? 267 She found that Floyd Robinson's evidence also lacked detail about the content of what he was taught and she did not accept that the detail was missing for reasons of cultural sensitivity. 268 It is difficult to second-guess her Honour's findings in relation to Floyd Robinson's evidence in this regard. She had the advantage, as the primary judge, of hearing and contextualising this evidence. This Court, on appeal, does not have that advantage. On the face of it, the judge's findings do not demonstrate any error. 269 As to the Mundagatta creation story, which, as noted above, a number of witnesses mentioned, her Honour found that it was "a solitary fragment" of what had once been a rich tapestry of Bidjara creation myths. That finding reflected the opinion evidence of Professor Sutton in particular. Again, it is difficult to second-guess the judge's assessment of the evidence given her advantages as the primary judge who heard the evidence. 270 Her Honour noted that a number of other pre-sovereignty customs no longer existed, such as a taboo on the names of the dead and ceremonial life; or were reduced in the case of language usage. 271 Thus, her Honour ultimately found that the people who now identify as Bidjara did not maintain a connection by a "body of traditional laws and customs as opposed to attenuated or transformed fragments of law and customs"; and so considered the connection maintained to the land and waters of the overlap area did not have a source in traditional law and custom. 272 The judge's various findings concerning discontinuities, which are to an extent schematic in the sense that her Honour deals with each in sequence, in our view should reasonably be seen as the completion of a task that the parties effectively set the Court by leading the opinion evidence of the expert anthropologists. The expert witnesses identified the attributes of the pre-sovereignty normative system - the laws and customs of all kinds - of the Bidjara. The judge, by reference to that evidence, reasonably noted what had effectively been lost, fallen into disuse or abandoned, or continued. Her findings in these respects are not in issue. 273 The important question which remained was whether the evidence of continuities - what had not been lost - nonetheless evidenced a contemporary normative system rooted in the sovereignty system under which rights and interests are possessed. For example, that there is no longer a "rich tapestry" of creation myths does not necessarily mean there cannot be a continuing traditional normative society. 274 While there is evidence that confirms the view that some Bidjara persons, over the years, continued to maintain a close relationship with the overlap area, it is ultimately difficult to second-guess the primary judge's finding, in effect, that the evidence falls short of establishing a contemporary traditional normative system. 275 The evidence of the lay witnesses referred to above supports the primary judge's findings that relevant continuity evidence was absent. Rodney Mailman's evidence, for example, does not provide any real support for the existence of a traditional normative system surviving today. He had heard about the Mundagatta, for example, and the story of the Goori Goori bird, but had little detailed knowledge of the relevant narratives himself. He had done some cultural heritage clearance work in the overlap area and had a feeling of communicating with spirits there, but that was as far as his evidence went of law and custom and connection with the overlap area. He did not know of any sites in that area until they were located during the heritage clearance work, something which strongly militates against a finding of knowledge disseminated by shared laws and customs of a continuing normative system. 276 John Leslie gave very little evidence to support a traditional normative system that has survived to the present. He only knew what he had heard from an old man, Henry Gadd, as to areas that belonged to the Bidjara. 277 Arwa Waterton gave some limited evidence about Bidjara burial practices in traditional times. She had found out about her family tree from government documents. Her evidence understandably provides little support for a traditional normative system today. 278 Nor does that of Reginald Little. 279 Sheryl Lawton had visited some sites at Mount Moffatt and gave evidence of her elders speaking the Bidjara language, although she did not. She also heard from them the story of the Goori Goori bird and about the Mundagatta. She had learnt that the Carnarvons were Bidjara country. Her evidence, on its own, helps to support the primary judge's finding of a Bidjara society today, but provides little support for a traditional normative system today. 280 Floyd Robinson's evidence has been set out in some detail above. The primary judge made special mention of his evidence. Of the lay witnesses at trial, he perhaps gave the most extensive evidence about Bidjara country and laws and customs. He had a special relationship with Uncle Rusty, in particular, while Uncle Rusty was alive. He learnt, as the primary judge put it, a number of narratives from Uncle Rusty and Bob Mailman. Much of their evidence has been referred to above. His knowledge of the extent of Bidjara country was dependent on what Uncle Rusty had told him. But properly analysed, the evidence of Floyd Robinson, on its own or taken with the evidence of other witnesses, falls far short of establishing a traditional normative system today. It enables the Court to conclude that Bidjara laws and customs survived European settlement, but not that there is today, as her Honour put it, at [672], a body of traditional law and custom. There is knowledge of some things, and there has been in the past, and still is, a measure of custodial practice in relation to sites in the overlap area, but this does not enable the Court to infer the existence of a traditional normative system of laws and customs that the claimants acknowledge and observe today. 281 Keelen Mailman gave detailed evidence at the trial. Her Honour found she is fairly fluent in the Bidjara language, which she learnt from her mother. She obviously gave impressive evidence to the Court as to what she had learnt from her mother and other elders about Carnarvon Gorge being Bidjara country, and the extent of Bidjara country, and her own cultural experiences. Ms Mailman's evidence showed her considerable commitment to her Bidjara countrymen and women, but again, on its own, or when taken with the evidence of others, does not establish that a normative system has survived over the years since sovereignty. Ms Mailman's evidence emphasises how the Bidjara have been fighting hard to return to and keep alive their traditions, but in many other ways highlights the extent to which the Bidjara, as a group, are not bound by an identifiable set of laws and customs that their people, generation by generation, have observed since sovereignty. 282 Raymond Robinson gave evidence that he learned about Bidjara ways from his mother, aunties and uncles and how he had been involved in Aboriginal organisations, including for the Bidjara, for many years. He gave a range of what might be called cultural evidence, including about the Bidjara "V" sign, the star and the six toes which are across Bidjara country, including at Carnarvon Gorge. Mr Robinson claimed he had been actively involved in Aboriginal cultural affairs in respect of the Bidjara. But again, on its own, or when weighed with all the other testimony, it does not establish that a normative system of traditional Bidjara law and culture survived into recent times. 283 Brendan Wyman gave evidence describing Bidjara country, how he had been taught his people's ways since he was born, including how to prepare traditional foods, and how the Carnarvon Gorge was of great significance to Bidjara people, with artwork and places of significance to women and areas where only women should go. Uncle Rusty had told him about the women's places, but not the details. He had learned from his grandmother about the Mundagatta and hunting and also about the Bidjara "V" sign. He also knew some narratives including the Goori Goori bird story. As in the case of Raymond Robinson, his evidence does not support the conclusion that the Bidjara normative system today, to the extent there is any body of contemporary laws and customs of these claimants, is a traditional normative system that has continued since sovereignty. 284 Patricia Fraser gave evidence about her grandfather being knowledgeable about Bidjara laws and customs and his totem. She said she had learnt to track and find traditional food, but she also said that her mother did not know about her traditional culture as she was removed when she was a little girl. Her mother was a Mandandanji woman and it was through her father that she gained connection as a Bidjara person. From him and her great aunt she had learnt about the Mundagatta and the Goori Goori bird. She explained she felt a spiritual connection to the Carnarvon Gorge on a 1981 trip there with Floyd Robinson. She gave some evidence about Bidjara customs and laws. She said when she enters someone else's country she speaks to spirits and asks for permission and can recognise women's places by carvings on walls. Her evidence strongly supports the view that she is a Bidjara woman who feels closely connected to country with which the Bidjara have always been associated. But, of its own or when taken with the evidence of other witnesses, it does not speak to a continuing body of traditional law and custom that has been handed down from generation to generation and which functions today. 285 Bob Mailman, who was deceased at the time of the hearing, was 74 years of age when he made a statement in February 2008, which went into evidence. He also gave evidence in 2001 before Ryan J, as mentioned above. He stated that his parents and grandparents were all born and lived in Bidjara country and were Bidjara people and he knew this because throughout his life he was told this by them. He said Bidjara people had a deep respect for their elders. He grew up speaking the Bidjara language and he taught Keelen Mailman the language. He also explained how the rules of marriage had evolved over time. He also explained about the two finger sign on walls in the Carnarvon Gorge which he was told by Uncle Fred Lawton was a Bidjara sign. He produced art which told stories including that of the Mandagmarra (or Mundagatta) as told to him by his father and grandfather and as he taught his nieces and nephews. His evidence is the type of evidence which, when taken with the evidence of Uncle Rusty and others at the preservation of evidence hearing in 2001, enables the Court to conclude, as the primary judge did, that a Bidjara society of people, descended from Bidjara people who had rights in the overlap area at the time of sovereignty, maintained knowledge of Bidjara culture and laws and traditions for many years. 286 The difficulty is, and it is the real difficulty in this case, that while Mr Mailman's evidence, and that of Uncle Rusty, shows Bidjara people fought hard to keep alive their heritage in the 2000s, and to protect burial sites and the like (which Professor Sutton considered "impressive") it is supported by little other evidence that shows a society of Bidjara people who together are today bound by their adherence to a body of traditional laws and customs. Her Honour's finding that the traditional "tenure system" was lost by the time of Uncle Rusty's generation (and was probably lost by the early 20th century), as discussed, particularly militates against any such a finding. 287 The evidence discloses that some Bidjara people, principally those of Uncle Rusty's generation who had remained in or near Bidjara traditional country, maintained the Bidjara language and were, in a practical sense, custodians of some of the traditional narratives and knowledge of the Bidjara people and their ways. These older people, like Uncle Rusty and Bob Mailman, no doubt came to be properly considered by other Bidjara people to be elders and senior custodians able to speak for Bidjara places, including burial places within the overlap area in the Carnarvon Gorge, given their superior level of knowledge about those places and because they were, in many instances, the only source of such knowledge. 288 The difficulty produced by a case such as the present, in light of the findings made by the primary judge, is that while certain narratives, song patterns, knowledge and practices that may reasonably be said to be derived from sovereignty times may have been possessed by some older members of a broadly defined contemporary society of Aboriginal people descended from a pre-sovereignty society, this alone is not sufficient, when all the evidence is accounted for, to demonstrate that the contemporary Bidjara society is one that is, in effect, defined by laws and customs rooted in pre-sovereignty laws and customs that its members acknowledge and observe, as against have some general knowledge of. 289 While the loss or diminution of some external manifestations of a sovereignty society - including language, ceremony, Men's and/or Women's Law, Dreaming narratives, taboos and the like - as discussed above, will not necessarily result in a finding that there no longer exists a society defined by a traditional normative system, the loss of such features will always raise serious questions as to whether or not the contemporary society is defined by old rules, or by new rules not rooted in the pre-sovereignty rules. 290 The evidence that proves the continuation of a traditional normative system must be adduced. Here, her Honour found this had not been done. Indeed, her Honour considered that so much focus had been placed on the traditional boundary issues, about which the three different claimant groups were in conflict at trial, that insufficient focus had been placed by the Bidjara claimants on the continuity issue. In this case the difficulties in showing the continued operation of a traditional normative system are not merely that a certain number of the indicia of the classical sovereignty society have been lost or abandoned, but, more significantly, that the contemporary Bidjara society cannot be defined by reference to a group of people who today adhere to a body of traditional laws and customs. These proof difficulties are not overcome by noting that Professor Sutton accepted that the Bidjara continue to share such concepts as communal interests in country and the inalienability of country. These concepts are no doubt important. Without them, it would perhaps be impossible to prove a continuing traditional normative system. But of themselves they do not remove the need for claimants to prove a system of traditional laws and customs they adhere to and under which it is said rights and interests are possessed. 291 In respect of the Carnarvon Gorge, the Bidjara also emphasise that Professor Sutton's initial report explained that he found the evidence as to the Bidjara people exercising "custodial rights in heritage" at Carnarvon Gorge since the 1960s "wide ranging and convincing". This may suggest the exercise of what might, for general purposes, be described as custodial rights - a right to protect sites, by law and custom, in that area. The question though is whether such a right has been demonstrated to be one currently possessed under traditional Bidjara law and custom. 292 A significant difficulty in the present case, to which Professor Sutton adverted and the primary judge accepted, was that on the face of it all members of contemporary Bidjara society enjoy the identical native title right to protect sites, not just a few knowledgeable Bidjara people. The claim was put at that broad level. It was not a claim made, as suggested hypothetically elsewhere in Professor Sutton's initial report, by "one family, or even just one person, being left standing as the legitimate holders of traditional country". Rather, the society which claims it was possessed of such a right was the broader group, apparently comprising as many as 10,000 persons. 293 That this is so is emphasised by the lay evidence led and summarised above. A range of persons who know of their Bidjara identity have come together, made the claim and insist that all persons descended from Bidjara apical ancestors have the same right to claim rights and interests in all Bidjara country. In the circumstances of this claim, this suggests a discontinuity that reflects the loss of the normative system rooted in sovereignty, and the creation of a new normative society that post-dates sovereignty that includes this claimed heritage right or obligation. 294 In our opinion, the primary judge appreciated that the key question on the Bidjara claim in respect of the overlap area was whether relevant laws and customs contended for could still be seen as the traditional laws and the traditional customs of the Bidjara. The judge reasonably and properly, having regard to the evidence, noted what laws and customs could be inferred to be Bidjara laws and customs at sovereignty and made findings as to which of those laws and customs may be said to be a feature of contemporary Bidjara society. 295 The fact that the judge dealt with some customs, for example, marriage rules, kinship and taboos, and language, which may be said not to be related or closely related to the possession of rights and interests in relation to land and waters, is, in our view, not material to her substantive reasoning. Her Honour, as explained above, was effectively obliged to deal with the evidence that the parties, including the Bidjara, had led at trial about the laws and customs of the sovereignty society and the asserted continuing laws and customs of the contemporary Bidjara society. Properly considered, her Honour closely regarded the evidence of the asserted contemporary laws and customs under which claimed native title rights were said to be possessed. 296 The judge reasonably and properly observed, having regard to the requirements of Yorta Yorta, that laws and customs will not be considered traditional unless it can be shown that there is a normative system currently that can be rooted back to sovereignty. Her difficulty was that the continuing relationships that some Bidjara people have with the overlap area and the knowledge about Bidjara country and culture that some people possess today did not appear to be explained by an enduring traditional normative system. 297 A key factor in this assessment was not only that contemporary Bidjara society no longer exhibited, even in an adaptive form, many of the laws and customs that the sovereignty society acknowledged and observed, but that in relation to the overlap area, the pre-sovereignty "tenure system" had been lost some time ago, and the current one was new. 298 In these circumstances, the primary judge's finding that the Dreaming narratives about which some Bidjara witnesses gave evidence were but fragments and attenuated accounts of what would once have been rich narratives, cannot be faulted. The judge plainly considered the limited knowledge some people had about such matters did not support the existence of a traditional normative system today. Findings about such factual matters require careful assessment and judgement. The primary judge had an advantage that this appeal court does not share in making that judgement. Sometimes, no doubt, the fact that a group has but limited knowledge of Dreamings, and the like, that must once have been extensive, will not lead to a finding that there is no longer a normative system. Other evidence, when taken with such evidence, may still prove the existence today of a traditional normative system. The difficulty in this case is that the other evidence to support such a finding is lacking. 299 There can be little doubt that the removal of Bidjara people from their traditional land and their splitting up through various kinds of social organisations had the most profound effects on Bidjara society. That does not mean, however, as the plurality in Yorta Yorta and the Full Court in Bodney said, that proving a continuing normative system that gives rise to rights and interests ceases to be a requirement of proof of native title. 300 No doubt, in many circumstances, such disruptions to the exercise of traditional rights will and have resulted in laws and customs being lost, falling into disuse or being abandoned. The question always is whether claimants nonetheless can show that they have continued to maintain by traditional laws and customs, without substantial interruption, connection with their traditional country. In this case, the history of disruption does not prove the lack of such continuity, but accentuates the difficulties the Bidjara faced in proving such continuity of connection. 301 In the result, the evidence led by the Bidjara fails to disclose, as the primary judge found, the existence of a contemporary normative system rooted in the pre-sovereignty system by which traditional rights and interests in relation to land and waters, in the overlap area, are possessed. It cannot be said that her Honour erred in the approach she took to the "continuity" question. 302 The appeal of the Bidjara on this question therefore fails.

Did the primary judge err in finding that the Brown River/Karingbal people had failed to maintain their connection with their country by traditional law and custom?

Primary judge's findings 303 The primary judge commenced her findings in respect of the Brown River/Karingbal people, at [538], by noting the substance of the issues raised by the State to the following effect: (1) The evidence did not support a finding that the beliefs and practices of these claimants find their origin in the body of laws and customs which it may be inferred united their ancestors at sovereignty. (2) The fact that some or very few members of the group might hold certain beliefs or observe certain practices did not evidence the requisite continuity of the pre-sovereignty normative system. (3) There was no other basis upon which to conclude that there has been continued acknowledgement and observance of the pre-sovereignty normative system. (4) Examination of these claimants' evidence supports the conclusion reached by Professor Sutton that they no longer practice most of the classical cultural traditions discussed by Dr Hutchings. 304 The judge first considered that the mere fact that Kevin Albury included the descendants of Jemima as Karingbal and others went along with it at the time in 2006 when the claim was made, and for five years thereafter, was not material to these questions, nor that the Freemans came to the claim very late. 305 She also confirmed the principle that it was not necessary in dealing with these questions that there be a body of persons who are "wholly united" in their acknowledgement and observance of traditional laws and customs. 306 At [544], her Honour said that the real point of the State's submission was that it appeared that the investigative and anthropological work of Dr Hutchings on behalf of the Brown River claimants had created a body of persons united in its perception of itself as Karingbal, which was inconsistent with the notion that a native title claim group is defined by its traditional laws and customs. Her Honour referred to Augustine v State of Western Australia [2013] FCA 338 at [214]-[215] in support of that understanding. 307 At [545], she said that the submissions of these claimants never directly confronted this issue and it was not answered by the fact that native title rights and interests might be held by an individual or a single family group (reflecting Professor Sutton's opinion referred to above in relation to the Bidjara appeal). 308 The judge then said that the evidence was that, at sovereignty, the Karingbal constituted a group of families who saw themselves as Karingbal and who were connected to the Arcadia Valley with differential rights and interests, at least in the northern and southern parts of that area. The claim is now for a group comprising the descendants of Albert Albury Snr and Maggie Suy See and Mick Freeman. She said there was not much doubt on the evidence that not only were the descendants of Mick Freeman physically separated from the Arcadia Valley since about the 1930s but also that they actively chose to identify themselves as Wadja people. They had only very recently identified as Karingbal and were only now learning Karingbal ways. 309 The judge observed that this left the descendants of Albert Albury Snr and Maggie Suy See as people who potentially, at least, have continuously acknowledged and observed their status as Karingbal and the traditional laws and customs of the Karingbal. 310 Her Honour remarked, at [547], that the evidence of the pre-sovereignty society was "very thin". She said the evidence was largely based on the anthropologists' extrapolation of their knowledge of Aboriginal societies generally in the region. 311 She noted that one of those societies was the Wadja. She said that if a person is raised as Wadja (as the Freemans were) and identifies as Wadja for their whole life (as the Freemans did) then the fact that aspects (even many aspects) of their culture would most likely have been the same or very similar to the culture of the Karingbal does not mean that a person raised as Wadja was also raised as Karingbal because of the similarities. Her Honour said self and family identification is important and cannot be disregarded, however observed that this is not to say that a person and their family cannot identify and be reared in more than one culture. The point she made was that the Freemans, on their own evidence, were raised only in the Wadja way. 312 At [549], her Honour said that she accepted that the Brown River/Karingbal people, insofar as they can be described as a contemporary society, had been constituted as such by anthropological research directed towards the making of a native title claim - strongly inferring that they had no real cultural existence. 313 Apart from that, her Honour also considered that they confronted other insuperable difficulties. 314 As to connection to land, the judge found that none of the relevant Brown River witnesses supported any of the propositions as to local groupings and their connection to land. In particular, she accepted that none of the witnesses gave any knowledge of subgroups, or a north/south division, or of any differential distribution of rights in country, save for Sean Cutting who said that he heard from Charles Stapleton that places like Lake Nuga Nuga were more the Alburys' area, but he did not know or was not sure whether the northern areas were more Freeman country. 315 In those circumstances, the judge did not give weight to Dr Hutchings' evidence to the contrary. 316 In the result, at [557], the judge found that an important aspect of the way in which the traditional laws and customs of the Karingbal regulated their relationship to their country had been lost. They no longer recognised, acknowledged or observed any concept of differential rights and responsibilities for different areas. 317 Her Honour did say, however, that other aspects of their traditional laws and customs in respect of land remain: essentially, that the location of Karingbal country is in the Arcadia Valley, that land rights are communal rather than individual, and are inalienable. 318 To that extent her Honour found that the State's submission that there was no evidence of continuity of the pre-sovereignty normative system of landholding by the Brown River/Karingbal people was overstated. Her Honour said there was evidence that aspects of the pre-sovereignty normative system of landholding continued in that regard but that other important aspects, including differential rights and responsibilities for different areas, had disappeared. The fact that Karingbal country was not a large area, at least compared with the Bidjara claim, did not negate the evidence of loss of tradition, or change and adaption of tradition, which must be taken into account. 319 As to group membership, the judge accepted the submission of the State, having regard to the evidence of Raymond Saltner, that his understanding as to how people obtained rights demonstrated a lack of a shared norm. 320 She similarly concluded that the contemporary evidence that there was no incorporation by adoption was contrary to the pre-sovereignty rule. It also suggested the lack of a shared norm. 321 Further, she considered that a suggested power in an elder to permit membership represented a significant shift from the pre-sovereignty normative system. 322 Her Honour, at [568], said the evidence disclosed other sources of considerable confusion amongst all the witnesses called for the Brown River people as to the operation of the criterion for membership. Virtually all used the same language and said in their written statements that to be Karingbal "you have to have a Karingbal parent and you must learn about Karingbal ways of doing things and get to know Karingbal country. The Karingbal people have to accept you as part of the Karingbal mob". Her Honour considered the similarity of structure and expression was striking and strongly suggested the written statements were created by a common hand. Although nothing was made of this in cross-examination, she said she raised it only for the purpose of explaining that in the event of inconsistency between the written statements and the oral evidence, weight would be given to the latter. 323 The judge then added, at [569], that as the evidence progressed it emerged that the only real criterion to be Karingbal was to have a Karingbal parent. Learning about Karingbal ways and getting to know Karingbal country were not criteria for membership of the group but were criteria for developing the right to speak for country. 324 At [569], she concluded that the contemporary position - that some Karingbal only are seen as worthy recipients of knowledge - was fundamentally at odds with the concept of the passing on of traditional knowledge from generation to generation. 325 At [574], her Honour then proceeded to find, on the evidence, that laws and customs about kinship, which once would have been rich and textured, had been reduced to something much simpler, something much less textured and with far less meaning, whereby older people are called "Aunty" or "Uncle", a development that Professor Sutton said was itself recent - which her Honour accepted. Beyond that kinship had disappeared. 326 As to marriage, the judge found, at [575], that a four section class system had entirely disappeared and that to the extent that claimants married outside the group, they no longer followed that rule. 327 Similarly there was no evidence of totems. 328 She also considered there were difficulties in relation to respect for elders to the extent that any traditional rule that the position of "senior for men" was handed down to the first born son was not operating when Kevin Albury became the Alburys' recognised elder or when Charles Stapleton became the Alburys' recognised elder, and may never have operated for the Freemans. 329 As to spiritual beliefs and practices, the judge found differing beliefs about the eungies (or junjadis) among the witnesses. Her Honour emphasised that the stories about these creatures did not constitute a form of creation story. 330 As to the Mundagatta creation story, at [595], her Honour found that the evidence of the Karingbal people was to the effect that the older people had told younger people that the Mundagatta created Carnarvon Gorge before leaving to locate itself in Lake Nuga Nuga, where it still resides, and for that reason they should not swim in the lake. 331 However, the judge accepted the evidence of Professor Sutton that the word "Mundagatta" had not been learnt by many witnesses by continuous oral transmission, but as a result of restoration rather than continuity. 332 Her Honour, at [598], expressly accepted Professor Sutton's evidence that creation stories, in traditional societies, would have been found everywhere in the country, yet what is left is a fragment of what would have been a rich culture of creation myths explaining all aspects of the country. Apart from the Mundagatta the evidence did not disclose any traditional creation narrative recognised by Karingbal people. Her Honour found that the reason for this was that no such traditional narratives have survived other than a bare notion of the Mundagatta as the creator of the country. 333 At [600], the judge found that the evidence supported the conclusion that as a result of massive dislocation of Karingbal people after the 1930s, all that is left of rich spiritual beliefs and practices are various inconsistent beliefs about eungies/junjadis and one story about the Mundagatta capable of expression in a single sentence. 334 As to ceremonial life, her Honour accepted that the evidence did not disclose any aspects of the social laws and customs associated with traditional Karingbal ceremony that continue to be known and practiced amongst the claimants. 335 The judge made the point again, at [604]-[605], that the oral evidence of the Brown River witnesses was at odds with their written statements and that these claimants failed to grapple with the reality of the evidence as it emerged during the hearing. In short, she explained in detail how the anthropological opinions in support of continuity expressed by Dr Hutchings were not borne out by the oral evidence. 336 At [611], the judge concluded that the evidence at best supported an inference that some people who identify as Karingbal recognise and acknowledge fragments of laws and customs, some of which have a connection to parts of the overlap area. 337 She further added, at [612], that the evidence at best supported an inference that some fragments of laws and customs continued to be known by some people, albeit in a heavily attenuated or adapted form, since sovereignty (such as the location of Karingbal country, the Mundagatta belief, the emu belief, a generalised notion of respect for elders, a generalised notion of respect for burial sites, a desire to be buried on country, and a taboo against incest) whereas most laws and customs have been lost entirely (including all ceremonies, all burial rituals, all other creation myths, all song and dance, the kinship system, differential rights and responsibilities in different areas, and the language) or transformed beyond recognition (including the rules in respect of marriage, or acquisition of status as an elder). 338 Her Honour rejected a submission that the evidence of the Brown River/Karingbal people was not all that different from that of Aboriginal witnesses in Sampi at [58]-[63]. At [615], she said at best the evidence before her disclosed an awareness of descent from the Karingbal that continued through Kevin Albury and the Freemans and an awareness of some fragments of what might be said to be Karingbal traditions. She said that this was a case where inferring the continued existence of a society (in the native title or any other sense) is not supported by the weight of the evidence, let alone the existence of a society which acknowledges and observes traditional laws and customs. 339 Her Honour rejected, at [617], that there was a "body of rules" of the Karingbal and to the extent there was, found it was hardly elaborate, and probable that large elements of revival and recreation had occurred since 2006 and the making of the claim, particularly in the case of the Freemans. 340 At [619], she accepted a submission on behalf of the Brown River people that the Stapletons in particular exhibited a far greater knowledge of at least the Arcadia Valley than any of the Bidjara witnesses. However, her Honour said she did not consider that such knowledge was capable of supporting an inference of traditional laws and customs under which there were rights and interests in relation to the land, when the weight of the evidence indicated, at best, the continuation of so few fragments of traditional laws and customs in such attenuated or radically revised forms. 341 Thus, the judge concluded that the requirements of s 223 of the NTA had not been met by the Brown River/Karingbal people. 342 In particular, at [621], her Honour said she was not satisfied that a Brown River/Karingbal society continued to exist in any sense after sovereignty and certainly not after the forced relocations from the area that occurred during the 1930s in particular. 343 She also said that she was not satisfied that the people who now identify as Brown River/Karingbal people possess rights and interests under traditional laws and customs which give them a connection with land and waters of the claim area. This was because she was not satisfied that any "body of traditional law and customs" as opposed to "attenuated or transformed fragments" had continued. Further, she was not satisfied that what continued provided any connection. Her Honour said that the evidence did not support a conclusion that Brown River/Karingbal society has had "a continued existence and vitality since sovereignty". 344 Her Honour made the particular point that the evidence of the contemporary Karingbal people was largely irreconcilable with the continuation of any material body of traditional laws and customs of the Karingbal. By reference to Risk v Northern Territory of Australia [2006] FCA 404 at [823], her Honour referred to the evidence not revealing the passing on of knowledge of traditional laws and customs from generation to generation.

Brown River people's submissions 345 The Brown River people first submit the primary judge did not keep the purposes of the NTA in mind either in her construction or application of s 223. 346 These appellants submit that the primary judge erred when she said that the question posed by s 223(1) is "whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs of the society". They submit that in answering the question so framed, her Honour placed significant and undue weight on what she described as the reduced significance of the pre-sovereignty kinship system, the loss of the four section class system and associated marriage rules, the loss of totems (other than the emu), the inconsistency of the evidence about elders, the simplification of traditional and spiritual beliefs and practices, the reduction of creation stories into a single story related to the Mundagatta and the loss of ceremonial life. 347 They submit that s 223(1) is not directed to those pre-sovereignty laws and customs. It is directed to those traditional laws and customs under which the relevant people possess rights and interests in relation to the connection with the land and waters claimed. They say those laws and customs will be traditional if the origins of the content of the law or custom concerned are to be found in pre-sovereignty normative rules, and the acknowledgement and observance of those laws and customs has continued "substantially uninterrupted" since that time, referring to the judgment of the plurality in Yorta Yorta at [46]-[47] and [87]. They say the qualification "substantially" is not unimportant, as the plurality in Yorta Yorta explained. They submit it is a qualification that must be made because European settlement has had the most profound effects on Aboriginal society and it is therefore inevitable that the structures and practices of those societies and their members will have undergone great change since European settlement. They submit her Honour did not make this qualification when assessing the evidence they led. 348 They also note that the primary judge found, at [557], that important parts of their traditional laws which had continued to be acknowledged and observed through to the present time included the location of Karingbal country, that the rights of that country are communal rather than individual, and that those rights are inalienable. Her Honour found that the communal and inalienable features were "fundamental" or "foundational" norms and an "important" part of the traditional laws and customs, at [536] of her reasons. 349 They also note that there were other "absolute continuities" from the pre-sovereignty past apparent in all claims, as identified by Professor Sutton, and referred to in her Honour's reasons at [379]-[380]. These other continuities related to spiritual beliefs and practices are set out at [579], [585]-[586], [588], [593] and [600]. 350 The Brown River people submit that her Honour's findings about the continuity of the Karingbal and the continuity of important Karingbal laws and customs connecting claimants with the overlap area are inconsistent with and do not support the ultimate conclusions her Honour reached. In particular, they say the evidence showed there had been continuity in the acknowledgement and observance of those "fundamental" or "foundational" norms which connected them with their country. 351 Unlike Risk, the Brown River people say theirs is not a case where there has been a complete breakdown in the acknowledgement and observance of traditional laws and customs, as in this case there were clear and important continuities. They further submit that the primary judge erred in her assessment of the Aboriginal evidence about their traditional laws and customs by expecting an unrealistic degree of consistency. 352 They further submit that a critical finding of the primary judge was that the claim group had been constituted as a contemporary society by anthropological research. 353 However, at [543], she also accepted that evidence supported the conclusion that the Freemans were descended from the Karingbal. 354 They submit that the primary judge's reference to comments in Augustine, emphasising the requirement that a claim group must have an existence independent of any determination application, was not appropriate. 355 The express submission is made that the factual conclusion that the Brown River claim group was a product of anthropological research directed towards the making of the claim overlooks the nexus between information provided to anthropologists by members of the claim group and others and the conclusions that have emerged from the research. It is further submitted that this characterisation also conflates the views held by individuals as to their mob with the adoption of the formal group description as required by the NTA. 356 It is further submitted the conclusion that the Brown River claim group was a product of anthropological research implicitly involves rejection of or disregard for the evidence of Charles Stapleton that he had always held the view that descendants of Jemima should be excluded (but deferred to the views of more senior people) and that the Freemans should be included (but they had declined to be involved). 357 As to the judge's express finding, at [529], that Charles Stapleton appeared to have made a unilateral decision that the descendants of Jemima were not Karingbal when the anthropological evidence changed to suit his position, it is noted that her Honour did not make express findings in relation to his evidence concerning his views as to the status of descendants of Jemima or Mick Freeman and does not indicate why, in spite of the way in which the claim group was described, it was not accepted that Mr Stapleton held the same personal views at all times and gave effect to those views in the group description used in the Brown River people's application. It is submitted her Honour did not give reasons for disbelieving his evidence on this issue and while he was cross-examined as to his reasons for acquiescing to different group descriptions, Mr Stapleton's responses were consistent and it was not suggested they were a fabrication.

State's submissions 358 As to the appellants' contention that the primary judge failed to keep the purpose of the NTA in mind, the State submits those purposes are not in dispute and her Honour did apply s 223(1) of the NTA. 359 As to the more particular submission that the judge asked herself the wrong question - "whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs by the society" - the State submits there is no basis to the contention. It says the question posed in the reasons at [469], [534] and [537] reflects the Full Court's analysis in Bodney. That in turn was based on the reasons of the plurality in Yorta Yorta at [87]. In Bodney, at [72], by reference to Risk at [74] the Full Court approved the statement of the requirement that: the acknowledgement and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs. 360 As to the third submission that, as a consequence, construing the reference to "traditional laws … and customs" as including all the laws and customs of the pre-sovereignty society, rather than a narrower subset of laws and customs, the State submits it was entirely appropriate and consistent with the approach taken in native title cases to date for the trial judge to have regard to the overall body of law and custom posited as the pre-sovereignty normative system of law and custom under which native title rights and interests were held. 361 The State submits that the reference in s 223(1)(a) to "the traditional laws acknowledged, and the traditional customs observed by," relevantly, Aboriginal peoples, is not directed to a narrow subset of those laws and customs, but rather to the "body of norms or normative system" of a society, as referred to in Yorta Yorta at [38] and [49], under which rights and interests are possessed. The State says the laws and customs and the society which acknowledges them are inextricably linked, as pointed out in Yorta Yorta at [55]. It further submits the rights capable of recognition under the NTA are rights and interests "in relation to land", but the "traditional laws acknowledged, and the traditional customs observed" are not similarly qualified or conditioned as being only those in relation to land. 362 In the State's submission, it is to the NTA that attention must be directed, not observations in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23. Nonetheless, Brennan J in Mabo at [58]-[60] emphasised that the rights and interests in question must be possessed under the traditional laws acknowledged and the traditional customs observed: they must find their source or origin in traditional law and custom, as stated by the plurality in Yorta Yorta at [33]. 363 The State submits that what survived the Crown's acquisition of sovereignty were rights and interests in relation to land or waters which owed their origin to a normative system other than the legal system of the new sovereignty power. They owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned. As the plurality said in Yorta Yorta at [38], "the laws or customs in which those rights or interests find their origins must be laws and customs having a normative content and deriving, therefore, from a body of norms or normative system - the body of norms or normative system that existed before sovereignty". 364 In the result, the State submits that what was said in Yorta Yorta means that the normative system under which the rights and interests are possessed is a system that has had a continuous existence and vitality since sovereignty, as noted by the plurality at [47]. 365 Thus, Yorta Yorta makes no distinction between the body of laws and customs comprising the pre-sovereignty normative system and some subset of that normative system for the purposes of s 223(1). The State submits it was said in Yorta Yorta at [42] to be unnecessary to distinguish between what is a traditional law and what is a traditional custom. They must be rules having a normative content. 366 The State in this regard relies in particular on what was said by the Full Court in Bodney at [47]: Because it is the normative system that is the source of the rights and interests, it is necessary in order to prove native title that the normative has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist: Yorta Yorta HC at [47]. It is therefore necessary for native title claimants to show that the normative system that existed at sovereignty is substantially the same as the one that exists today. If it is not, then any rights and interests are not 'possessed under the traditional laws acknowledged and traditional customs observed'. 367 The State contends that the appellants' contention overlooks the inextricable link between the various rules that constitute the normative system under which the native title rights and interests may be said to be held, which were, at sovereignty, undoubtedly a highly complex system of landholding and social interaction. 368 The State submits that the Full Court's decision in Sampi does not invite a different conclusion. The distinction drawn in that case between "fundamental matters of the creation and existence of rights and interests in land and waters" and other "constellation of factors", at [67], was in the context of considering whether the Bardi and Jawi comprised a single society. In the State's submission, while it may be possible to differentiate "fundamental matters" from other aspects of the body or system of laws and customs, those other aspects remain relevant in proving the continuity of the system, including on the basis of inference. In this regard, the State refers to Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 at [1296]; [2007] FCA 31 (Lindgren J). 369 As to the fourth point raised by these appellants, that her Honour failed to apply the "substantially uninterrupted" qualification in considering continuity, the State submits this submission is not sustainable and that her Honour plainly regarded changes and adaptions at [458]-[459], [465], [469], [534], [555], [557], [582], [586], [617] and [621] of her reasons.

Continuity principles and challenges in proving native title 370 We refer to what was stated above on those topics at [156]-[202]. They are also relevant to this appeal ground of the Brown River people.

Consideration 371 The account that the primary judge gave of the evidence of Brown River claimants is not in dispute. The primary question on this appeal is whether the judge erred in applying an impermissible approach to assessing the question of continuity and failing to recognise that established "continuities" proved the operation of a continuing traditional normative system that gives rise to the rights and interests claimed. 372 As to Charles Stapleton, the judge noted: He was born in 1949 at Rockhampton and now lives near Bauhinia and Rolleston because it is the closest place to Karingbal country. His mother's father's father was Albert Albury Snr who was born at Consuelo Station and was a Karingbal man. His mother's father's mother was Maggie Suy See who is recorded as being born between 1830 and 1860 near Springwood (not Springsure) and she was understood to be a Karingbal woman. Most of his knowledge about the Alburys came from his mother and his uncles, Kevin and Tim, and so he understood that to be a Karingbal person you have to have a Karingbal parent and you must learn about Karingbal ways of doing things, get to know Karingbal country and you have to be accepted by Karingbal people as part of the Karingbal mob. You can follow either side though mother or father. The boundary of Karingbal country was told to him by his uncle Kevin Albury. In respect of Carnarvon Gorge he had his own stories for how it was created and he teaches those to Karingbal people. In respect of Lake Nuga Nuga, from when he was kid with others he went out "on Karingbal country" a lot. Old Tim would tell him where things were. His mother and Tim told him about a big camp up at Lake Nuga Nuga. He still goes camping there. He said his mother told him her father, Albert Albury Jnr, worried that if his children spoke in Karingbal language they would be taken away to a mission. He and his brother still know some words that their mother always used. He now teaches these words to young Karingbal kids. He said that when you cross into Karingbal country you have to sing out Karingbal words to let the old people know you are coming back and that you belong. 373 At [206], she noted the further evidence of Charles Stapleton as follows: • The spirits of the ancestors are all over Karingbal country. They are around the old camping grounds and they are in the emus and some other birds. That is why we call out when we come onto Karingbal country after being away and why we respect the emu by not touching it. The spirits expect you to do the right thing on country by protecting it and not letting miners and others destroy important places and sites. If we do not look after our places then the spirits will punish us or our family. That is why I get upset about people wanting the mining money but do not go out and look after their country. I go out because I want to make sure the country is looked after. It is not about money. • Old Tim used to tell us about the eungies and the Mundagartta [Mundagatta]. Kevin knew about them too and I know he would pass on those stories to his family. • If people from other groups want to come onto Karingbal country, then they should ask first. You usually ask the elders, you usually know who it is in a particular area that you should speak to. You know this because they are your neighbours. If you don't know then you ask the people who it is you should seek permission from. • In the old days if you didn't ask you could get hurt by the people or spirits. The spirits are very strong in Karingbal country and they will still hurt you now. They can make you get sick or even make you die. They can mess with your head and make you go mad. • The Mundagartta [Mundagatta] is the giant creator serpent that made all the creeks, rivers, swamps, lakes, hills and gorges all over Karingbal country. We have to respect the Mundagartta. We are not allowed to damage any lakes, waterholes and swamps where the Mundagartta lives now. This is another reason why me and other elders have to protect our special places because if we don't the water will dry up. • The old people told me that the ground was grumbling and Lake Nuga Nuga went dry in the 1800s and 1940s because the Mundagartta was angry. Uncle Tim told me that the Karingbal people ran away from the lake because the Mundagartta was angry. The whitefellas thought that Lake Nuga Nuga went dry because the Americans had bombed it. But our old people knew better. • After the Mundagartta created the Gorge and that's where he ended up there in the Lake. He created the Lake and that's where he is now. Old Tim told us about the story, he was told it as a young kid. • We are still monitoring who is getting close to people so people do not marry too close. If they do not listen to the elders we growl at them. People get punished by the spirits too if they marry too close. 374 At [207], the judge referred to what Charles Stapleton said he had been told when growing up, including: • There's a hill at Lake Nuga Nuga that we are not allowed to go up. Mum and Kevin they didn't tell me why they just said, 'Never climb it.' I don't think it has a name, but it's just a big brown hill near the lake. It's a good landmark for the lake. I will show the judge when we take her out to Lake Nuga Nuga. • The old people told us that Rougemont Gorge is where the big massacres were. There is another massacre site at Graves End waterhole on Rougemont Creek, that's the one they wrote about in the book 'Dung on your Boots.' I've been there, I'm the only Karingbal person allowed up there by the Serocold Station owner, old Jack Fletcher. There's a steep cliff and at the bottom is a cave with paintings and hand prints. That's where the white fellas drove all them Karingbal people off the cliff. There are sixty-eight bodies up in that cliff, they were taken there by Karingbal people to be buried after they were driven off the cliff. Old Tim told me about it but Kevin told me how many there were. • Karingbal people should be able to be buried on country. I reckon we should still have that right. That's why Kevin Albury wanted to be buried at Lake Nuga Nuga. Because of all the rules they've got now, he couldn't be buried at the Lake so he got burnt first, the white fella way, and then we took his ashes back to spread around the Lake so he was in the place he wanted to be. • It's important to come back to Karingbal country to be buried so our spirits can return to the country. Our spirits come back to our country as an emu … We are not allowed to touch the emus or their eggs, it is a Karingbal rule. When we die, Karingbal people come back as emus. There is no way in the world that I would ever harm an emu. I teach this to the younger people. Everybody who comes onto Karingbal country is given an induction. They are told all about the emus and they are told not to touch them or their eggs or feathers. They are protected by Karingbal people. Emus can be seen everywhere on Karingbal country. • Mum always said, that if you see a crow acting queer, you can always tell someone has died. Crows are always around when things are happening, for example, when I am getting cranky with someone on the phone I always see a crow. I feel as though Kevin is sending this crow to remind me of a promise I made to him before he died. 375 Charles Stapleton also gave evidence about how he passed on knowledge to other Karingbal people, who he considers, as her Honour describes it, "trustworthy". He also described the burial of his uncle Kevin's ashes above Lake Nuga Nuga and said it was his uncle's request that he be buried out at the Lake. 376 As to his right to be on Karingbal country and the rights he has, Charles Stapleton said: I have a right to be on Karingbal country, to speak for and make decisions about things that happen on country. I have this right because I come from the old people who used to walk Karingbal country long before whitefellas turned up. I have a right to be buried on Karingbal country just as my ancestors have done. 377 Charles Stapleton also: spoke about a cave with burial remains which he had learnt about from his uncles, Kevin, Tim and Andrew; confirmed Lake Nuga Nuga was a sacred place for him; said that Lake Nuga Nuga is also the home of the Mundagatta which still lives there; said there are many caves in the hills surrounding the lake which were used for burials; said that Consuelo Lake in the overlap area was very special as all his old ancestors were born there and you could still see the scar trees around the lake, knowledge handed down to him by his mother and Uncle Kevin, who had been told it by their elders; and said he drank medicine made from the gumbi gumbi bush every day at home. 378 The judge noted that when asked about his culture, Charles Stapleton said: • you have to be the right people for the right Country. Blood. You've got to know your country, you know your traditional laws and customs; • you respect a lot of things on our country. The emu is our spirit. When we die, we come back as an emu. We go out there every year to the lake ..... or whatever you call it, 12 months after they die. We go out there and spend a couple of nights out there, we go camping up - all up through the gorge with no roads, probably none of you [Bidjara] people have ever been… I know them, but I've got to be careful who I tell them to; • when you've got knowledge of country, you know everything about the country - all up the back country, where there's no body ever been hardly …Where all the burials, all the big camp sites are up the back, where their tracks go through to the other side [the Deepdale area]… tracks they took for their hunting at different parts of the year, when they go back through to October Swamp; • [in respect of burial sites] '[w]e go back and look after them and make sure they're closed' • [his mother told him] I couldn't marry anyone close to our group … You can't marry in amongst your own people [and he had never heard of marrying across moieties or the kinship system] but most of us were brought up with a bit of respect. Anyone older, they were called aunty, uncle; • in the old days, there was mainly - most of the Karingbal married into the Kanalou. That was at a ceremony down at Bauhinia; • [Karingbal cannot kill or eat or touch any part of the emu because emu are their totem]; • [he] 'always call out' to the old people [when on country to] '[l]et them know we're from there, we're coming home'; • [eungies are found at Lake Nuga Nuga, which his mother told him about, but he does not go near them]; • you can't show any place to anyone that's not a Karingbal and 'it has got to be someone you can really trust that's not going to tell anybody because we've lost that many bodies from up in that country now, it's not funny. Namely Grahame Walsh and then you had the Yanks that took them all out of the hill beyond Consuelo'. 379 Charles Stapleton added that to "talk for your country" you needed to be "blood" and so while an adopted person could be part of the claim, they could not speak for country. 380 Charles Stapleton also said that in the claim there were not "too many people" who knew the country and the sites and so "we have, more or less, classed an elder as someone who knows all the sites, the burials and everything else" and he and his brother, Fred, had been taught these things in the 1960s. 381 As to Frederick Stapleton, the judge noted: He was born in Rockhampton in 1948 and gave evidence about his mother, father (who was not Aboriginal) and grandfather, as well as the Millers, Mick Freeman and Albert Albury Snr. He provided an account of his experiences of Karingbal country and those of his family. He gave an outline of the boundaries of Karingbal country. He described some spiritually and historically important sites on Karingbal country, including a place on the mountain between Consuelo Creek and the ranges to the east between the Carnarvon Highway, where his Uncle Tim had told him that men were not allowed to go, and the place where women were buried in caves. He also mentioned engravings that Uncle Tim had shown him near Rocky Creek on Consuelo Station. He said that Carnarvon Gorge and Lake Nuga Nuga were the main sites for Karingbal people and the Gorge was a big place where people would camp together and use as a meeting place for tribes. He gave evidence about a number of places on Consuelo Station and in the Carnarvon Ranges, including where he used to muster from the time he was 11 to 13 years of age. He had been told how in the 1800s Murris were herded off a cliff like a mob of cattle by white men. This was over at the back of Mount Carnarvon, it was Rougemont Gorge. This is part of general Karingbal knowledge that the old people have told him and others. There were burials right along the cliffs in most parts of Karingbal country and burial caves all over Karingbal country. He said he did "not want to give too much detail about their locations". Carnarvon Gorge is where the Mundagatta came out. He described how it created the gorges along Carnarvon Creek and generally described where it travelled. He said it created all the creeks, rivers, lakes, hill and gorges in Karingbal country. He said he was always told to respect it and not to do anything that would harm it and that is why he gets worried about mining today. He said the old people told them that they cannot eat emu as this is their spirit animal. To kill an emu would be like killing ancestors. The owl also has a special spiritual significance, although he was not sure what it is but they were told not to touch them. He mentioned eungies live in the mountain and are little spirits. He explained what they do. Uncle Tim told him that other tribes would always get permission to travel through an area and you must be careful about where you are going so you do not go to a place that may be dangerous. So you have to ask or you could get into trouble. The Karingbal rule is that families must make decisions within their own families. So he and his brother, Charlie, can speak up for the Albury family. Then the elders of the families get together and make decisions for the Karingbal group. Letting the elders speak is the proper Karingbal way of doing things. In the old days women were never elders. It is up to his brother, Charles Stapleton, to pass on his knowledge to the next males who will come through and be elders. This could be one of his nephews, cousins or even one of his grandsons. To be Karingbal you did not need to be born on country. To be an elder though you had to have knowledge of country. 382 As to Raymond Saltner, the judge noted: He was born in 1958 in Rockhampton and lives at Laidley. His mother was also the mother of Fred and Charles Stapleton. He explained how he learnt about Karingbal country from when he came up to Rolleston when he was a 13 year old. He said that Charles tells him about Karingbal country and teaches him about different sites. He believed Karingbal country is where the spirits of his ancestors are. He gave evidence about the Mundagatta dreaming and identified his totem, being the emu, and referred to spirits. He followed his mother's side. He gave some evidence, which was a little confusing, but her Honour said meant that his sons followed their mother's line and were not Karingbal. While he had been taking his son to see Karingbal sites, his son did not speak for country. 383 As to Edgar Freeman, the judge noted: He was born in Townsville in 1977 and lives in Rockhampton and is Karingbal through his mother. He said elders should speak up for country and he leaves it to his mother, uncles and mother's uncles, Charles and Fred Stapleton. He gave evidence that outsiders should ask permission from Karingbal elders if they want to go hunting, camping or take something from the country. He gave evidence about how you introduce a person to the country and the spirits of the country and about spirits on country. He said emus are old Karingbal people travelling around and checking things on country. The night owl is his family's totem and they are not allowed to touch that bird. He spoke about the willy wagtail and eungies (or junjadis). He emphasised the authority of elders about the Mundagatta. He had been taught by his elders that he is not allowed to marry his relations. He described various hunting techniques. 384 As to Dianne Evans, the judge noted: She was born in 1950 in Woorabinda and continues to live there. Her father and his mother and his grandfather were Karingbal, although her great grandmother was Myra Sullivan, a Wadja woman. She said when strangers come onto Karingbal country they should always ask for guidance. She gave evidence that you are not allowed to take anything away from Karingbal country and if you do you could get sick. She teaches her children this rule. She said you have got to have a spiritual connection to Karingbal country, to be Karingbal and you feel this through the animals and the land. When she goes on country, she calls out to the spirits of her ancestors to let them know she is back. Smoking ceremonies are used to welcome people to country. When she was about eight she saw Bulbura Freeman do the emu dance at Woorabinda. Her old aunties, Daisy and Ivy, went out hunting all the time and would take the children with them. She gave evidence about Lake Nuga Nuga being a special place for the Karingbal. She described the Mundagatta and its significance. She discussed the role of elders. She said that the rules about marriage were pretty strict and you cannot marry your own family and she teaches her children about marrying the wrong way so it does not happen. Celeste Hill is her sister. She had thought of herself as Wadja until recently and had been brought up in the Wadja way. Fred Stapleton had contacted them to join the claim as they were descended from Karingbal and they had done so. She knew Aunty Esme Freeman had been approached earlier and refused as they wanted to see what would happen with the Wadja claim first. She said you could not claim country just because you were born there but, if you could, you would like to be born on country. You had to be from that country through your ancestors. She was born in Woorabinda but was Karingbal and Wadja. 385 As to Celeste Hill, the judge noted: She was born in 1954 at Woorabinda and lives there. She is the sister of Ms Evans and is Karingbal through her father's side of the family. She described what she had been taught about Karingbal country. She was taught not to speak the language in front of white people or they would get into big trouble. She mentioned the emu as a special animal or totem for the Karingbal and other birds such as the willy wagtail and peewee. She also spoke about eungies (or junjadis). She gave evidence about the Mundagatta. She gave evidence about people from outside Karingbal country coming onto Karingbal country and needing to ask one of the elders first. She said her sister, Dianne Evans, kept a check on relations so people married the right way. She gave evidence about the role of elders, being to speak up and make important decisions. She said, in oral evidence, she had a Wadja side and a Karingbal side to her ancestry and she grew up mainly a Wadja way but her father said they had a connection to Karingbal too. She first went to Karingbal country in 2010 or 2011 and was learning about Karingbal country and ways. 386 As to Rhonda Munn, the judge noted: She was born in Rockhampton in 1957 and is Karingbal through her mother, her mother's mother, Effie Freeman, and her mother's father, Mick Freeman. She explained what her mother had told her about growing on up Karingbal country and how the Alburys were Karingbal. Her mother told her no one was allowed to speak Karingbal when they were growing up. She described her spiritual relationship with Karingbal land. She gave detailed evidence about the Mundagatta and the Freeman family totem. She said elders provided guidance about Karingbal rules, for example about marriage. 387 As to Sean Cutting, the judge noted: He was born in 1975 in Rockhampton and lives at Moura because it is close to Karingbal country. His mother is a Karingbal woman and the sister of Fred and Charles Stapleton. He is learning about Karingbal country from his uncle Charles. He described some of the trips he has made since his uncle started teaching him about Karingbal ways. He said that other people must ask permission from their elders before they enter Karingbal country. He gave evidence about Karingbal spirits and the Mundagatta. He said it was up to his uncle Charles and the other elders to protect sites on country and pass on their knowledge about them. He said that he did not know a lot about Karingbal ways but he was learning. 388 As to Anthony Freeman, the judge noted: He was born in 1952 at Woorabinda and lives in Rockhampton and is Karingbal through his great grandfather on his father's side, Mick Freeman. He explained how he learnt about Karingbal ways when he was young. He gave evidence about the Mundagatta and how certain animals had significance as totems and spirits that existed on country. He said that when people come on to Karingbal country to take water or food they should be talking to a Karingbal elder. He said that elders hold an important position to give guidance on matters including marriage. He said there was some kind of initiation still done but it is secret and he did not want to talk about it in public. 389 At [371] of her reasons, the judge said that all experts agreed that the Brown River claimants no longer practice in their original form most of the cultural traditions Dr Hutchings identified in her report, but that a number continued, albeit in varying degrees, in a transformed, attenuated, or intact state. Her Honour noted that Dr Hutchings qualified this view by expressing the opinion that traditional practices such as understanding of kinship structures and relationships, ritual, and spiritual beliefs and practices remain. Her Honour noted Professor Sutton and Dr Sackett agreed that some Brown River claimants retained such practices, while Professor Langton considered very few members practiced those traditions. 390 At [372], her Honour noted that Professor Sutton and Drs Sackett and Hutchings agreed that contemporary Brown River people in historical times have experienced different kinds of social milieus including pastoral stations, Woorabinda, town camps and cities which have reduced the degree of sharing of norms and practices by comparison with the relative uniformity that one would have expected at sovereignty. 391 As in the case of the Bidjara, the judge, at [379], noted that Professor Sutton identified several "absolute continuities" from pre-sovereignty Aboriginal society apparent in all claimant groups, in these terms: • One's primary entry into a land holding group remains that of descent from an ancestor. Every infant is born into some group or another …competence, presence, knowledge, responsibility are not about the entry point into the group but the rise to a strong position in the group. • The interest in land is always communal and not individual, it's shared. And the way it has been shared has changed through time in my view, but the basic principle of a communal entitlement to the estate remains unquestioned. • The land is not considered to be a chattel, you can't bequeath it in a will to your children, you can't exchange it, you can't sign up and pay your dues and become an owner. In other words, the estate itself is regarded as inalienable, it's not a market object. • All assert a spirit connection with the country, principally to their own ancestors and their old people. • They believe they have a responsibility to protect the tombs of the old people within the area that is the subject of this matter. • All assert an incest taboo of some sort. 392 At [380], she noted that Professor Sutton identified several continuities which had been "transformed" to a greater or lesser extent from pre-sovereignty Aboriginal society apparent in all claim groups, in these terms: • All groups have an emphasis on extended family, that is a distinctively ancient thing. They have an emphasis on valuing kinship - kin-relatedness as a basic positive. An example of this is the development of the Auntie and Uncle titles which developed and evolved out of the old values, but it evolved in a modern situation where people are often - not actually sure how they're related to someone or they haven't been brought up to think of themselves as being specifically related, but represent a continuation of the shared norm of valuing both kinship and seniority. • Seniority is another domain and we've heard evidence of the shared value of respect for elders. • Some emphasis on super natural domains, which again is a continuity, [whilst noting that the 'eungies' and other 'little hairy men' referred to by witnesses] are at one end of the spectrum in terms of the power and profundity of spiritual beings in the ancient Aboriginal systems… the dreamings or stories, or histories as they're called in far western Queensland, they're not just going to frighten you at night or maybe do something good for you when you're sick, they actually created the world. That's the big difference, and they formed the rivers and the valleys and so on, and the story of a snake moving along the river system being specifically heavily located in a permanent water body, that's all classical ancient Aboriginal thinking… It's unsurprising that it's here. [Specifically], there has been continuity of transmission of the rainbow snake entity and knowledge and respect for it and awe of it, with some break in the way the language was learned. 393 The judge, at [381], said "discontinuities" were also apparent, as described by Professor Sutton: • There is no evidence of those particular two structures [kin superstructures of skins and moieties] still operating as norms for the selection of marriage parties, although they are part of the cultural memory. • Another area where there has been a lot of loss, and this applies to all groups, is in the ability to name places in the country in language … But for there to be such a loss of place names has to be put against whether or not there has been a loss of the meaning of input to those places; a separate issue. 394 As to the evidence of Raymond Saltner concerning membership of the Karingbal, her Honour noted Professor Sutton's explanation: I read Mr Saltner's statement of a rule and I say projection of his personal circumstances and ancestry. And that would be, in my experience of the east and western desert, that would be quite normal, and very traditionally minded people to take their own cases and then project it…This is different, and I do think that this variety of statements of rules does indicate a new degree of lack of sharing of common norms for assigning country. 395 However, she also noted Professor Sutton's effective qualification of this observation, at [383]: …it's only one person saying that. And I am quite happy with Dr Hutchings' analysis of the group as a whole, as one in which descent through either parent is the rule. And that in that, they have bonded together. 396 At [385], the judge noted Professor Sutton's observation that one thing missing from the evidentiary landscape was any systematic study of the norms of kin relationships which made it difficult to assess the strength of this continuity or discontinuity. Only Dianne Evans gave evidence about this. 397 In relation to the question whether continuity of language was critical to the continuation of the group holding traditional laws and customs in common, her Honour noted, at [399], what Professor Sutton said: [A]ll the groups in this case have put their claims on the basis of being a group that is defined in part as a language entity. In that sense, the claimants themselves have put language centre stage and, secondly, as I've said, although we don't have anything really concrete in this case, but my understanding very generally from senior people elsewhere is that language is a sacred endowment, and to the extent that people subscribe to that identity through their ancestry, and those ancestors, most of them now are in the realm of spirits, language actually crosses over various cultural domains to do with the afterlife, to do with the founding of the world and those things, so language is - is very important in this case, and the reason why in the Aboriginal world generally, as I understand, you can't take another person's country is not just that it's against the law - law to thieve or carry out theft; it's actually about supplanting the spiritual identity of others, and that's a most serious and heinous crime. 398 She also noted, at [400]-[401], that Dr Sackett did not consider the reduction in the knowledge as "fatal to native title", with which Dr Hutchings agreed. 399 Her Honour accepted the anthropologists' evidence as to the features of the pre-sovereignty normative system of traditional laws and customs, and certain additional features noted by the State, that were referred to above in relation to the Bidjara appeal, as set out at [506]-[508] of her Honour's reasons for judgment. 400 She then made the findings concerning the Brown River claimants set out above. 401 The first significant difficulty that the judge identified with the Brown River people's claim was that they did not constitute a "society" in the terms described in Yorta Yorta. 402 Because her Honour considered the claim group had only been identified as a result of the anthropological investigations of Dr Hutchings, she effectively found that, prior to the making of the claim identifying the claim group, the relevant members of the claim group did not subscribe to shared traditional laws and customs: they were not defined by any traditional normative system. 403 This is emphasised at the end of her Honour's statement, at [549] of her reasons, that the contemporary society identified by the claimant application, had been "constituted as such by anthropological research directed toward the making of a native title claim", her Honour finding, in effect, it had no real cultural existence. 404 While these appellants submit that these observations and this finding by the judge overlooks the nexus between information provided to anthropologists by members of a claim group and others and the conclusions that emerge from research, and conflates the views held by individuals as to their mob with the adoption of a formal group description as required by the NTA, these contentions do not respond to the substance of the judge's concern in this case. 405 At [544] of her reasons, the primary judge accepted the submission of the State, the real point of which, her Honour said, was that it appeared that the investigative and anthropological work of Dr Hutchings had created a body of persons united in its perception of itself as Karingbal, which was inconsistent with the notion that a native title claim group is defined by its traditional laws and customs. 406 Such a view will always depend on the factual circumstances of the case. In many native title claims the identification of the claim group will often be the subject of anthropological research, of a genealogical nature, as to the identity of the broader group of people who share the same descent characteristics as people already identified as elders and knowledgeable members of the claim group. That some people identified by the research may not be involved in the group's "activities", and may not be especially knowledgeable about the group's claimed traditional normative system may, and will in many cases, be irrelevant to the question whether the claimants, so identified, as a whole hold native title under the NTA. 407 The fact that anthropological and other evidence may be led to identify who falls within the claim group for NTA purposes would, in such cases, ordinarily be of little moment and would not necessarily lead to the view that the claim group has been artificially constructed and that there is no relevant group who can prove the existence of a traditional normative system that defines them as a group of native title holders. 408 But where the persons who are identified as the key members of the native title holding group, and whose evidence is relied upon to prove the continuing traditional normative system, in effect do not know each other and do not share anything apart from descent from apical ancestors, these facts may reasonably and logically be called in aid of a submission and a finding that they, together, do not adhere to a traditional normative system; that they, together, are not a "society" defined by their shared acknowledgment of traditional laws and shared observance of traditional customs, as Yorta Yorta demands. 409 That is what we understand the primary judge to have found in this case and we do not consider that she can be shown to have erred in principle in so finding. 410 That Charles Stapleton may have held his views about the descendants of Jemima and Mick Freeman for some time, as the appellants submit, does not affect the essence of this finding. 411 The question, once the non-Karingbal/Wadja people were removed from consideration, as the judge recognised, was whether the remaining claimants - principally the Stapletons - could prove continuity nonetheless. In that regard, at [549], the judge considered the remaining claimants faced "insuperable" difficulties. 412 As in the case of the Bidjara, the judge considered that the current "tenure system" by which all of the Brown River claimants were said to have the same rights in the overlap area was different from the differential distribution of rights in country that her Honour inferred existed at pre-sovereignty. In that regard, at [550]-[552], she did not give weight to the evidence of Dr Hutchings that there still were local groupings. She accepted the State's submission that Dr Hutchings' evidence was not supported in that regard by any of the lay witnesses, who had no knowledge of subgroups or of a north/south division, save for some evidence from Sean Cutting to which plainly her Honour gave little weight. As a result, as in the case of the Bidjara, at [557] her Honour found that an important aspect of the way in which the traditional laws and customs of these Karingbal people regulated their relationship to country "has been lost". At [550], the judge accepted, by reference to Bodney, there could not be a "more important" law or custom relating to rights in land. 413 Her Honour accepted that other aspects of traditional law and custom remained, including that the location of Karingbal country is in the Arcadia Valley and that land rights are communal rather than individual, and are inalienable - just as she had broadly accepted the same propositions in relation to the Bidjara claim. 414 Accordingly, the judge did not consider there was no evidence of continuity of a pre-sovereignty normative system, but rather that important aspects of the pre-sovereignty normative system had disappeared. 415 The judge then considered whether other particular laws and customs said to be adhered to by the contemporary group reflected a significant shift from the pre-sovereignty normative system. 416 One of these, discussed at [568], was the confusion that her Honour found among the witnesses as to the criterion for membership of the group. 417 The evidence on this topic led her Honour to conclude, at [569], that the contemporary position amongst the group was "fundamentally at odds with the concept of the passing on of traditional knowledge from generation to generation". In other words, she considered the membership rule was a new rule, not a traditional one. In particular, she considered the suggested contemporary power of an elder such as Charles Stapleton to permit membership was new. 418 The judge also noted what she considered to be the loss of laws and customs about kinship, marriage rules, a four section class system and totems. 419 While the Brown River appellants draw attention to the primary judge's mentioning of these matters, they do not contend that in doing so her Honour improperly referred to this evidence. Her Honour's purpose in doing so plainly was to emphasise the primary finding made, that the evidence in a number of respects, other than how the claim group had been identified to include those who already identified as Wadja people, did not support the finding that there was today a traditional normative system giving rise to the rights and interests claimed. These are all part of the "insuperable" difficulties her Honour mentioned. 420 Similarly, in relation to the judge's finding that the evidence about eungies (or junjadis) was not evidence of spiritual beliefs and practices, her Honour's finding cannot be doubted. In so finding, the judge plainly relied on Professor Sutton's evidence to that effect. 421 As to the Mundagatta creation story, the judge considered, at [597], that the word "Mundagatta" had not been learnt by many witnesses by a process of continuous oral transmission, but as the result of "restoration rather than continuity", the concept of "restoration" being drawn from Professor Sutton's evidence and implying something new, not traditional, in a Yorta Yorta sense. Her Honour's point plainly was that while some members of the claim group gave evidence about the Mundagatta, the evidence did not support the view that their knowledge about it had been transmitted from generation to generation and so did not support a finding that there was today a traditional normative system that gave rise to the rights and interests claimed. 422 It is in that same context that her Honour's finding that no traditional narratives had survived "other than a bare notion of the Mundagatta" is to be regarded. 423 Similarly, the fact that there was no ceremonial life today was another indication to her Honour that there was no traditional normative system today that gave rise to the rights and interests claimed. 424 In all the circumstances, the judge's rejection, at [617] of her reasons, of the proposition that there was a "body of rules" of the Brown River/Karingbal people cannot be said to have been in error. 425 The evidence supported her Honour's related finding that, to the extent there was a body of rules, it was hardly elaborate, and that it was probable that large elements of revival and recreation had occurred since 2006 and the making of the claim, particularly in the case of the Freemans. 426 In our view, as her Honour found at [619], the weight of the evidence was against a finding that the Karingbal had any rights or interests that were possessed under a traditional normative system. As explained above, in relation to the Bidjara, the fact that some persons within a claim group demonstrate some knowledge and awareness about matters of a traditional nature does not in every case mean that a traditional normative system will be found to exist. As the plurality said in Yorta Yorta, whether knowledge, or lack of it, leads to a conclusion that a "society" exists may be a very difficult question. This case is a testament to the accuracy of that observation. 427 It is not demonstrated that her Honour erred, either in the approach she took to determining the question of continuity, or in her ultimate finding that she was not satisfied that there was a "body of traditional law and customs" as opposed to attenuated or transformed fragments that had continued. 428 All the evidence supports her Honour's finding that the evidence did not support a conclusion that Karingbal society had had "a continued existence and vitality since sovereignty". 429 The Brown River people's appeal on this ground therefore fails.

Did the primary judge fail to accord the Brown River people procedural fairness? the Browne v dunn point 430 The Brown River people, by grounds of appeal 1(e) and (f) of their notice of appeal, contend that the primary judge erred by denying them procedural fairness, in that: (e) her Honour discounted the weight to be given to statements of evidence of the Brown River appellants' witnesses and gave greater weight to the oral evidence of witnesses given in Court in Brisbane (reasons at [568], [598], [605]-[608]); and (f) her Honour expressed doubt as to whether statements of the witnesses from the Freeman family called by the Brown River appellants could be taken at face value, in circumstances where the witnesses were not examined or cross-examined upon or otherwise given notice of the reservations harboured by the Court (reasons at [608]). 431 By ground 2, these appellants further contend the primary judge erred by denying them procedural fairness in finding that: (1) large elements of revival and recreation of laws and customs have occurred within the native title claim group since 2006 and the making of the native title claim (reasons at [617]); (2) the native title claim group's society effectively ceased to exist until attempts were made to revive it from 2006 onwards as part of the native title claim (reasons at [621]); and (3) the Brown River appellants' witness statements were not an accurate record of the evidence of individual witnesses but had been "created by a common hand" (reasons at [568], [605]), in circumstances where those allegations were not put to the Brown River appellants' witnesses in cross-examination or by the Court. 432 The Brown River people contend that these grounds raise a Browne v Dunn point. 433 The Brown River people say that the rule in Browne v Dunn (1893) 6 R 67 has two aspects. First, it is a rule of practice and procedure based upon general principles for fairness, designed to achieve not only fairness to a witness, but also a fair trial between parties: Bale v Mills (2011) 81 NSWLR 498 at [43]; [2011] NSWCA 226. The rule requires that a party or cross-examiner who intends to invite the Court to disbelieve an opposing witness put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. It is submitted the failure to comply with the rule may unfairly have resulted in the witness having lost the opportunity to elucidate or explain the matter upon which he or she was not cross-examined, and that the rule, being one of fairness, applies equally to a trial judge as to counsel: see Bale at [64]. 434 Secondly, the Brown River people submit the rule relates to the weight or cogency of the evidence, that is, evidence which is not inherently incredible and which is unchallenged, ought to be accepted: Ashby v Slipper (2014) 219 FCR 322 at [77]; [2014] FCAFC 15 (Mansfield and Gilmour JJ) citing Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-371; [1975] HCA 27 (Gibbs J). 435 These appellants note that in Jango v Northern Territory (2006) 152 FCR 150 at [301]; [2006] FCA 318, Sackville J observed that generally speaking, where particular features of indigenous evidence had not been challenged in cross-examination, there would need to be a cogent reason for rejecting that evidence. 436 The Brown River people take issue with the primary judge's observations in her reasons that witness statements "were created by a common hand", something not raised with the relevant witnesses. 437 They also say that in the absence of any challenge in cross-examination to the written and oral evidence of witnesses as to the continuity of the Brown River/Karingbal people and of their laws and customs, it was not open to the primary judge to reject their evidence and find that the law and custom was the subject of large elements of revival and recreation since 2006 and that the Karingbal society ceased to exist until attempts were made to revive it from 2006 onwards as part of the native title claim. 438 The State submits that reliance on the rule in Browne v Dunn is misconceived. 439 The State observes that in Ashby at [77], Mansfield and Gilmour JJ said, immediately after the passage quoted in the Brown River people's submissions, that "[t]he evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection"; and at [78] that "there is no rule of law in this country that a court must accept unchallenged evidence". 440 We accept the observation made on behalf of the State that the primary judge in her reasons at [568] and [605]-[606] simply made the point that, where the written evidence of the lay witnesses conflicted with their oral evidence, their oral evidence would be given greater weight. There were a number of respects in which the lay evidence given during cross-examination developed, clarified, added to, altered and at times was inconsistent with what appeared in the written statements. The primary judge was critical of the Brown River people's submissions at trial for failing to "grapple with the reality of the evidence as it emerged during the hearing", and not weighing up the oral and written evidence (at [604]-[605]). Her Honour thereby indicated how she proposed to deal with such conflicts in the evidence in weighing the evidence overall. 441 We also accept the observation made on behalf of the State that the primary judge did not comment adversely on the credibility or believability of any of the lay witnesses. To the contrary, in the one case where her Honour noted that the written statements were misleading, her Honour added that was "no doubt unintentionally" (at [608]). 442 We accept the further submission made by the State that in neither of the two respects identified in the submissions of the Brown River people was the rule in Browne v Dunn contravened. No party (nor the primary judge) invited the Court to disbelieve those Brown River witnesses, as opposed to weighing up their oral and written evidence. There was no "unchallenged evidence" which the Court rejected inconsistently with the rules explained in Ashby. 443 It is quite apparent from what has been set out above in this judgment in dealing with the question of continuity, and from the analysis of the primary judge at [534]-[623] of her Honour's reasons, that the evidence of the Brown River people and all other Aboriginal witnesses concerning the continuity of relevant laws and customs was the focus of consideration at all times at the trial and so subject to challenge in that context. 444 The grounds of appeal that are said by the Brown River appellants to raise the Browne v Dunn point therefore fail.

Did the primary judge err in excluding Ms Hickson's evidence? 445 By ground 3 of the Brown River people's notice of appeal, it is said that the primary judge erred in law in declining, on 6 May 2013, to admit into evidence the affidavit of Margaret Louise Hickson sworn 3 May 2013, and evidence of Ms Hickson to the effect that she is a pastoral lessee of land in Arcadia Valley and had been aware since 1996 of the connection asserted by Kevin Albury as an antecedent of the Brown River native title claim group to the overlap area or substantial parts of it. 446 In their written submissions in relation to this ground of appeal the Brown River people submit (with footnotes omitted) as follows: 21. At [621] her Honour expresses the conclusion that Karingbal society (after sovereignty or after forced relocations from the area during the 1930s) effectively ceased to exist in any sense until attempts were made to revive it from 2006 onwards as part of the native title claim. On 6 May 2013, the Appellant sought to read an affidavit of a white pastoralist, Margaret Hickson, affirmed 3 May 2013. Ms Hickson was a long-term resident of the area, from a time before native title issues arose and was well acquainted with members of the Karingbal (BRP) in the late 1990s. Her evidence would have gone some way towards countering any criticism that Karingbal society and indeed Karingbal connection to country, had ceased to exist. The evidence was objected to and was not received. 22. It is submitted that the rejection of Ms Hickson's evidence was an error. The Court should have but did not, consider the content of the evidence that was sought to be relied upon, and its relevance or potential relevance, the importance or potential importance of that evidence, when it first came to the notice of the Appellant, the extent to which the Appellant might have, with diligence, obtained that evidence at an earlier time, the prejudice (if any) to other parties in admitting the evidence and (if any such prejudice arose) how it might be ameliorated. 23. Ms Hickson's evidence was relevant and important in that it related to: (a) Kevin Albury's perception and identification of himself, between 1996 and 2006, as a Karingbal person, and his perception of Karingbal people as the traditional owners of land within the overlap area; and (b) Kevin Albury's knowledge of the overlap area, the boundaries of Karingbal country and places of special significance to Karingbal people. 24. That evidence, if accepted, would have been inconsistent with her Honour's conclusion at [621]. 447 The State denies that the primary judge so erred, contending there is no basis to conclude that there was any error made in the exercise of her Honour's discretion, nor any basis to conclude that, had leave been given to admit Ms Hickson's affidavit, this could have affected the final result. As to the proper exercise of a primary judge's judicial discretion, reference is made to the principles discussed in House v The King at 504-505 (Dixon, Evatt and McTiernan JJ). As to whether the evidence could have affected the final result, reference is made to the principle established in Gerlach at [6]-[7] (Gaudron, McHugh and Hayne JJ). 448 The State submits that contrary to the Brown River people's submissions, the judge did consider the content of Ms Hickson's affidavit, as may be seen from the transcript of 6 May 2013 at p 381. The State says that after hearing from counsel for the Brown River people as to why leave should be given, objection being taken by all other parties, her Honour refused to admit the affidavit. At that point counsel for the Brown River people declined the primary judge's offer to provide reasons (see the transcript p 382). 449 The State submits that the primary judge's ruling in relation to the affidavit was consistent with her Honour's approach to various other evidence which, in particular, the Bidjara people sought to rely upon, contrary to the pre-trial orders which had required all evidence to be filed and served by a particular time. 450 In any event, the State submits, the submission that Ms Hickson's evidence, if accepted, would have been inconsistent with the conclusion at [621] of her Honour's reasons is not sustainable. The State submits that evidence of Kevin Albury identifying as Karingbal; referring to his ancestors as the traditional owners of the country within the Karingbal claim area; and talking about burial places and other places of special significance (at [10] of Ms Hickson's affidavit), is consistent with the evidence which was given about Kevin Albury in any event and referred to, for example, at [201], [492], [615] and [621] of her Honour's reasons. The State also submits it says nothing about the composition of the Karingbal people and the acknowledgement and observance of law and custom by them, which was the specific subject matter of the reasons at [621]. 451 The State observes that while Ms Hickson was apparently unknown to the legal representatives of the Brown River people prior to 29 April 2013, one of their main witnesses, Charles Stapleton, knew of her and her close relationship with Kevin Albury. This is referred to at [209] of her Honour's reasons. 452 In all the circumstances, we are unable to conclude that her Honour inappropriately exercised her judicial discretion to exclude Ms Hickson's affidavit at that stage of the proceeding, dealing with the matters covered by the affidavit. The late production was inconsistent with the pre-trial programming orders. The legal representatives for the Brown River people were apparently unaware of the deponent until relatively recently before the hearing commenced. In any event, the matters canvassed and said to be of relevance in the affidavit were the subject of evidence and dealt with in her Honour's judgment in the manner the State has indicated. 453 As the State submits, the particular evidence that Ms Hickson might have given at [10] of the affidavit was given by Mr Albury and, when closely analysed, does not address the question of composition of the Brown River/Karingbal people and the acknowledgement and observance of laws and customs by them as a group, which is the subject of discussion in the reasons at [621]. 454 In these circumstances there is nothing to support the ground that, in effect, her Honour's exercise of judicial discretion in refusing to admit Ms Hickson's affidavit into evidence miscarried, or that the matters with which that affidavit dealt could have affected the relevant findings made by her Honour concerning group association and maintenance of traditional laws and customs. 455 In these circumstances, ground 3 of the Brown River appellants' notice of appeal fails.

Did the primary judge err in making a Negative determination? 456 By ground 6 of their notice of appeal, the Brown River people contend the primary judge erred in law by making a determination that native title does not exist in the determination area in circumstances where the only applications for determination of native title before the Court were claimant applications. 457 The Brown River people in relation to this ground of appeal adopt the submissions filed by the appellant in the Karingbal appeal, which raised a similar ground of appeal before that appeal was discontinued. 458 The Karingbal submissions, adopted by the Brown River people, first contend that on a claimant application, such as that made by the Brown River people, it is not within the power of the Court to make a negative determination that native title does not exist; and secondly, should that contention not be accepted, and it be found that the Court has a discretionary power to make such a negative determination, that the exercise of that discretionary power in this case miscarried. 459 As to the power of the Court to make such a negative determination, the primary submissions of the Karingbal people, that the Brown River people rely upon, are as follows. 460 With regard to the Court's power to make a determination, the Karingbal submissions note that s 225 of the NTA defines the term "determination of native title" as follows: 225 Determination of native title A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural/ease or a non exclusive pastoral lease-whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 461 It is submitted an application may be made to the Court under Pt 3 of the NTA where there is no existing "approved determination of native title" for an area: see ss 13(1) and 61A(1) of the NTA. 462 Further, the Court's jurisdiction to "hear and determine" applications under Pt 3 of the NTA is exclusive of all courts other than the High Court pursuant to s 81 of the NTA. 463 A determination under s 225 of the NTA must relate to an "application" made to the Federal Court under Pt 3 of the NTA. Part 3 provides a detailed regime for the making of "applications". 464 The Karingbal submissions note s 253 of the NTA defines the terms "claimant application" and "non-claimant application" as follows: claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended. … non-claimant application means a native title determination application that is not a claimant application. 465 The submissions refer to the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) at [8.22], which states that a non-claimant application is: basically an application, seeking a determination about whether native title exists in relation to an area, by a person who neither claims to hold native title nor is acting on behalf of those who do. 466 It is submitted the consequence of the distinction is that a non-claimant application will be for a determination that native title does not exist. 467 It is further noted the table beneath s 61(1) of the NTA distinguishes between "native title determination applications" that are "claimant applications" and those that are "non-claimant applications". A person making a claim on behalf of a native title claim group, or compensation claim group, must be authorised by such a group: see ss 61(1), (2) and 251B of the NTA. Authorisation of the person making the application goes to the Court's jurisdiction to hear the application: see Wongatha at [1269]-[1270] and ss 84C and 84D of the NTA. While an application other than on behalf of a native title claim group or compensation claim group need not be authorised it must satisfy statutory requirements. 468 The Brown River/Karingbal people point to a particular notification requirement which exists for non-claimant applications. When notifying a non-claimant application, the Native Title Registrar must include a statement of the kind set out in s 66(10)(a), namely that: the area covered by the application may be subject to section 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in subsection (8) of this section), the area is covered by a relevant native title claim (as defined in section 24FE); 469 By reference to the Explanatory Memorandum at [25.57], they say the purpose of this statement is to: draw attention to the operation of some aspects of the NTA which may affect the notified person's decision about whether, when and how to respond to a notice … In the case of non-claimant applications (item 95 inserts a definition of this term into section 253, these are applications for a determination of native title by a person who does not claim to hold native title) the notice must include a statement that section 24FA protection will apply to the area covered by the non-claimant application unless there is a relevant native title claim relating to that area at the end of 3 months from the notification day … . 470 Section 24FA protection is the authorisation of future acts that arises under s 24FA of the NTA when certain conditions are satisfied for a non-claimant application (typically, that a non-claimant application has been made, notified and after the notification period has ended, there are no claimant applications made in response). 471 The Brown River/Karingbal people submit the status of an application under s 61(1) of the NTA as a non-claimant application will alert persons to the fact that a determination that native title does not exist is being sought, and if there are competing claimant and non-claimant applications for a particular area, they will be heard in the same proceeding, pursuant to s 67 of the NTA. 472 They say it is a purpose of the NTA that the orders open to be made on an application under s 61, in the form of a determination of native title, be those sought in applications as notified. The Brown River/Karingbal people further submit that if the public is not alerted to the prospect of a negative determination of native title, the notification requirements of s 66 of the NTA will not be fulfilled and so a person receiving notification will not be aware of information that "may affect the notified person's decision" as to how to respond to the application. 473 Pursuant to s 213(1) of the NTA, a negative determination, as a form of native title determination under the NTA, must be made "in accordance with the procedures in" the NTA. In the Brown River/Karingbal appellants' submission, they say those procedures require a non­claimant application before a determination that native title does not exist can be made. By reference to Commonwealth v Clifton (2007) 164 FCR 355 at [43]; [2007] FCAFC 190, the Karingbal say they are "procedures which the legislature intended to be critical to a valid exercise of the jurisdiction of the Federal Court". 474 Further, the Brown River/Karingbal people contend that in the present proceeding, the negative determination sought by the State of Queensland was effectively a counter-claim, which should have been positively propounded by the making of a non-claimant application. In the non-claimant application/counter-claim, the State would have borne the onus of proof of the negative proposition that native title did not exist: see Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 at [74]; [2010] FCAFC 3. They submit it is unlikely that the NTA permits a respondent to avoid that onus through the expedient of not making a formal counter-claim. 475 It follows, in the Brown River/Karingbal appellants' submission, that the Court's jurisdiction under s 225 to determine whether or not native title exists depends on there being an application which complies with the NTA for either a positive determination (where that is sought) or a negative determination (where that is sought). 476 In summary, they say the fact that a non-claimant application was not positively advanced should preclude the State from an entitlement to a negative determination as a remedy. 477 In relation to the contention that the Court does not have the power to make such a negative determination, the State submits that neither the provisions of the NTA nor the Full Court's decision in Clifton support the proposition that the Court lacks the power to make a determination that native title does not exist in determining a claimant application under s 61(1) of the NTA. 478 The State notes that the ultimate holding in Clifton is that before a determination may be made that native title is held by a particular group, an application under s 13(1) must be made, by a person or persons authorised by that group in the manner required by s 61(1): see Clifton at [57] as well as the emphasis on authorisation at [20], [22], [36] and [52]. It says once such an application has been made, the Court may not make a determination that another group of persons, who have not authorised the making of an application for a determination of native title, hold native native. That is, a person cannot secure a positive determination of native title as a respondent to the claimant application. 479 The State submits, however, that the Court's jurisdiction having been properly invoked by an application under s 13(1) of the NTA, the resolution of disputes arising in relation to that application (including as to the ultimate issue, whether native title exists) is patently an inherent aspect of a determination of the application under s 13(1). 480 The State says that the fact there are procedures which apply in the case of non-claimant applications is not to the point. Those procedures are designed to bring the non-claimant application to the attention of persons who may be affected by the "presumably negative" determination which is sought (importantly, any potential native title claimants). 481 The State says that where the Court's jurisdiction has already been invoked by a (claimant) application made under s 13(1), with the requisite procedures that attracts (including authorisation and notification), that purpose is met - that is, bringing the proceeding to the attention of any person with an interest that may be affected by a determination (negative or positive) in the proceeding. 482 The State submits that the request for a determination to be made, giving effect to the primary judge's reasons, is not a counter-claim by the State which results in any shift of onus. The precise question posed for the Court's decision in relation to the claimant applications before the Court in this case was whether or not native title exists. That is a matter in controversy between the parties to the claimant applications themselves. The State submits that having answered that in the negative, after a full hearing on the merits, the Court's discretion as to the form of orders to be made (dismissal of the applications or a determination that native title does not exist) was enlivened. 483 We broadly accept the submissions made on behalf of the State. 484 In CG (deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 similar submissions to those now made on behalf of the Brown River/Karingbal people were considered and rejected by Barker J, following the unsuccessful claimant application of the claimants in that case. 485 We note, as did Barker J in Badimia, that similar submissions were also made in Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210 and rejected by Jessup J. 486 In Badimia at [43]-[51], Barker J said as follows: 43 In Yugara, the Queensland South Native Title Services similarly submitted that a negative determination could only be made in circumstances where a non-claimant application had been filed. The argument put on behalf of the claimants was substantially the same as that put here on behalf of the claimants. Jessup J rejected that submission, observing that there was 'neither inconvenience nor injustice in taking the view … that such a holding would be wrong', and confirmed that the Court had the power to make a negative determination in respect of a claimant application which had been unsuccessful following a contested hearing. 44 In doing so, his Honour stated at [16]: That is to say, the court has before it applications for determinations of whether or not native title exists. Those applications have been duly made conformably with item (1) in s 61(1), and have been through the statutory procedures to which their Honours referred in Clifton. That either or both of those applications might result in a determination that native title does not exist strikes me as an inescapable possibility under the statutory scheme. Even without the submission of any respondent, the Act contemplates the making of such a determination as within the range of possible outcomes. 45 His Honour further observed at [18]: when any application for a determination of native title is made, it is a matter of public record that the person or group concerned may, at the end of the proceeding, be recognised as the holder or holders of native title. By the terms of s 225, it is also a matter of public record that the proceeding may result in the making of a determination that native title does not exist in relation to the land concerned. 46 In my view, the Court should follow the ruling and reasoning of Jessup J in Yugara, which I consider, with respect, to be correct. 47 While the claimants submit that such a ruling results in public notification procedures for native title claims being circumvented, I am satisfied s 225 confers on the Court power to make a negative order that native title does not exist and so do not accept that s 225 should be construed in a manner that limits the power of the Court to make a determination of one sort or the other. 48 If a claimant application fails, the unsuccessful claimants must necessarily appreciate that, in its discretion, the Court may either simply dismiss the proceeding or make a negative determination. 49 The reality is, particularly in a proceeding like this, that the claimant application of the claim group has followed the procedures of the NTA, and has been notified so that any other indigenous persons who wished to become respondents in the proceeding could become respondents to assert any competing native title claims. None did so, although at the hearing indigenous witnesses, belonging to groups who considered they were neighbours of the Badimia, gave evidence. 50 While I recognise the arguable basis of submissions made on behalf of the claimants concerning the limited powers of the Court as to what determinations it can make now in this proceeding, I prefer the construction of s 225 and the other provisions of the Act arrived at in Yugara and contended for by the State, which submissions, set out above, I generally accept. 51 Thus, the question then becomes whether a negative determination should be made in the circumstances of this case. 487 For the reasons given by Jessup J in Yugara and adopted by Barker J in Badimia we are of the opinion that the Court has the discretionary power, following an unsuccessful claimant application, to simply dismiss the claimant application or to determine, if appropriate, that native title does not exist. 488 In those circumstances, ground 6 of the Brown River people's notice of appeal, to the extent that it raises the question of the power of the Court to make a negative determination, must fail. 489 As to the exercise of the discretionary power to make a determination, the written submissions of the appellants in the Karingbal appeal in substance state as follows: (1) To the extent that the primary judge was entitled to make a negative determination it was in the exercise of her discretion to do so, which discretion is governed by the principles in House v The King, in particular at 504-505 (Dixon, Evatt and McTiernan JJ). (2) In [2] of her reasons of 3 February 2014 (Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8) (the determination decision), the primary judge stated: While I accept the State's description of the relevant statutory provisions, the issue is ultimately one of discretion. It is true that the Court's jurisdiction is to be exercised so as to ensure, where possible, all matters in controversy between parties are 'completely and finally determined' (s 22 of the Federal Court of Australia Act 1976 (Cth)). It is also true that s 225 of the NTA expressly contemplates that a determination may be made that native title does not exist in relation to certain land. I accept also that negative determinations have been made where a claimant application has failed rather than the claimant application merely being dismissed. I further accept the State's submission that the claims in the present matters failed after a trial on the merits by competing claim groups after a detailed examination of the evidence. I agree that this circumstance weighs in favour of the making of a determination as sought by the State. (Emphasis added by the Karingbal appellants.) (3) Section 22 of the FCA Act states: The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided. (4) Section 22 has its origins in s 24(7) of the Judicature Act 1873 (UK) and is directed to the harmonised administration of legal and equitable remedies in a single proceeding. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161; [1981] HCA 48, Gibbs CJ, Stephen, Mason and Wilson JJ said that the power conferred by s 22 was: designed to ensure that the Court can grant relief which is appropriate to both legal equitable claims and to avoid multiplicity of proceedings. Its effect is to enable the Court to dispose of all rights, legal and equitable, in the one action, so far as that is possible. (5) In Clifton, at [41], the Full Court of this Court (Branson, Sundberg and Dowsett JJ) described s 22 as a provision which does not expand the jurisdiction of the Court. (6) Section 22 is directed to promoting finality of proceedings to avoid multiplicity of proceedings concerning any of "those matters", which expression is clearly a reference to "all matters and controversy between the parties". (7) Section 22 is not relevant to the making of a negative determination of native title consequent upon the dismissal of a native title determination application, given the in rem nature of the determination, as to which see Wik Peoples v State of Queensland (1994) 49 FCR 1. (8) By allowing s 22 to be one of the considerations influencing her Honour's decision, the primary judge considered an irrelevant matter and thereby committed an error in the House v The King sense. 490 We accept the submission made on behalf of the State that it was open to the primary judge in the circumstances to make a determination in the terms that her Honour did; and there was no error in the exercise of the discretion to do so by referring in a general sense to s 22 of the FCA Act. 491 As to the exercise of the discretion we accept that a range of factors may lead a court, in the particular circumstances of a claimant application, to make a determination that native title does not exist. 492 In Yugara, Jessup J took into account that: (1) There was no suggestion in the evidence of the existence of any groups other than the Yugara or the Turrbal (the contesting groups) which held rights and interests in the claim area. Nor was there any basis in the evidence to find that the normative system of laws and customs which inferentially existed at sovereignty had continued substantially uninterrupted to the present time (at [22]). (2) The Yugara people were the only people (with one exception) to avail themselves of the opportunity to respond to the initial public notification of the original Turrbal application, made under s 66(3)(d) of the NTA on 13 December 2000, and there was no basis to infer that there are in probability other groups who would have potentially viable claims in relation to the claim area (at [23]). (3) The Court determined that the pre-sovereignty normative system of laws and customs had not continued in the relevant area (at [24]). (4) While a research project which had the objective of identifying which people, if any, may hold native title within the claim area had not been completed at the time of the commencement or completion of the trial, neither of the applicant groups before the Court had sought the deferral of the trial to await the outcome of that research and indeed both opposed the State's earlier application to defer the trial until the results of the research were known (at [29]). (5) There was a "persuasive argument" that it was too late for other groups who may have viable native title claims to be advanced and there would be "something odd about a system which permitted successive native title applications to be made with respect to the same area of land on the ground that more information had come to hand, in which the only persons who could not benefit would be those who had taken the trouble to bring their case forward in a timely way (that is, because the claims determined in those cases would be res judicata)" (at [30]). (6) The relevant native title interests clearly knew of the existence of the proceeding and inferentially knew the broad nature of the applications made in November 2012 and October 2013 (in relation to the research project) and there is "strong public interest in the finality of litigation" (at [31]). (7) The imminent delivery of the research report did not make a positive contribution to the case that a negative native title determination should not be made. (8) While one person had become a respondent on the basis that he wished to resist the claims made by demonstrating that he was himself the holder of native title, he subsequently filed a notice stating he did not wish to take an active part in the proceeding and thereafter did not appear at the trial and was not permitted to file an affidavit in relation to the proceeding. Later, he had supported the position advocated by one of the claimants. His situation added nothing to suggest a negative native title determination should not be made (at [36]-[40]). (9) For more than 16 years there had been native title determination applications in relation to the claim area. 493 In Badimia, the Court made a negative determination after regarding the following factors, namely that: (1) There had been a full and complete trial on relevant connection issues in the area the subject of the claim (at [79]). (2) The trial was conducted following the lodgement of a considered claimant application by the claimants and no other indigenous persons sought to challenge the alleged interests (at [80]). (3) The native title claim group was identified and formulated by the claimants having regard to their indigenous knowledge and with the assistance of the relevant native title representative body (at [80]). (4) The matter proceeded to trial with the advice and representation of experienced solicitors and counsel, and an experienced anthropologist was called on behalf of the claimants at trial (at [80]). (5) A suggestion by claimants that, as a result of the Court's decision, thought might be given to the identification of a new claim group comprised of only the descendants of some of the apical ancestors identified in the proceeding by the Court, was artificial (at [81]). (6) The case before the Court, unlike that in Wongatha, did not fail by reason of lack of authorisation, and in Wongatha the primary judge (Lindgren J) recognised that, within a very large claim group, there were families or groups who may well, on their own, be able to advance separate claims for native title if properly authorised (at [83]). 494 In this case, the primary judge said, at [2] of her reasons in the determination decision, that the Court's jurisdiction is to be exercised so as to ensure where possible all matters and controversy between parties are "completely and finally determined", as s 22 of the FCA Act states. Her Honour, in so stating, went on immediately to indicate that s 225 of the NTA expressly contemplates that a determination may be made that native title does not exist in relation to certain land. It may be seen that her Honour was stating a more general point about the importance of finality in legal proceedings, including claimant applications, and did not limit her consideration of the exercise of her discretion by what s 22 appeared to require. 495 In making the determination that she did, her Honour, at [2], specifically noted that the claims in the present matters failed after a trial on the merits by competing claim groups after a detailed examination of the evidence. Her Honour said that this circumstance weighed in favour of making a negative determination. It cannot be said that her Honour thereby took into account an irrelevant consideration. 496 Her Honour, it may be noted, also gave close consideration to the fact that the Bidjara claimants were not legally represented and that the balance of their claim, which was not before the primary judge, might lead to different conclusions. Her Honour, however, considered that the balance of the claim in the circumstances was irrelevant. As the Brown River people were represented at the trial, this finding is not relevant to their submissions. 497 She also declined to accept a submission that the Bidjara claimants might be estopped from pursuing a subsequent claim in relation to the balance of the claimed areas. 498 At [4], she said that another relevant matter was the fact that although the claims had been on foot for many years there were essentially only two claimant groups in the overlap area, being the Bidjara and the Brown River (Karingbal) claimants. No other group asserted a claim to any part of the overlap area. The evidence did not enable any inference to be drawn that any other group might have such a claim. Her Honour observed that the evidence disclosed the existence of other traditional societies at sovereignty in the vicinity of the overlap area, although some of these appeared to have been absorbed into and become part of the Bidjara, and that the Bidjara had also taken over country left by another group. Again, it cannot be said that her Honour erred in taking into account those considerations. 499 Finally, her Honour observed, at [5], that her finding that the claimants did not possess rights and interests under traditional laws and customs was a circumstance that involved considerations different from those expressed by Lindgren J in Wongatha, where his Honour contemplated that on the evidence alternative claimant applications might well be conceivable. Again, it cannot be said that her Honour erred in so stating. 500 In all the circumstances it is not demonstrated that her Honour erred in the exercise of the discretion whether or not to make a negative determination, in a House v The King sense, by taking into account some irrelevant factor, failing to regard some relevant factor, failing to ask the right question or asking the wrong question. 501 Indeed, we consider that, in the circumstances, it was appropriate, if not inevitable, that a negative determination should have been made once each of the three claims failed on the basis that they did, and there was no suggestion there was any other group traditionally associated with the overlap area the subject of the claims. 502 In these circumstances, ground 6 of the Brown River appellants' notice of appeal fails.

Conclusion and orders 503 For these reasons, the Court makes the following orders. (1) In each of the appeals QUD 857 of 2013 and QUD 130 of 2014: (a) The appeal be dismissed. (b) There be no order as costs. I certify that the preceding five hundred and three (503) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Barker and White.