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.