Mansfield J
In this matter the Court ordered that 3 respondents, Mr Geoffrey Booth, Mr Dennis Fisher and Mr Robert Burns cease to be a party to the proceeding as the apical ancestors of these respondents were found not to be Boonthamurra People.
Background
The geographical area of the claim is in the south-western section of Queensland, with the claim area surrounded by the Bidjara, Mithaka, Wongkumara, Kullilli and Mardigan Peoples claims made under the Native Title Act 1993 (Cth) (NTA).
The applicants wished to proceed to hearing and in view of the ongoing contest about the composition of the claim group, and connection issues, the Court appointed Professor David Trigger, anthropologist, as an independent expert, with the consent of all parties, to see whether the claims could be resolved by agreement. That procedure continued to a point where it became apparent that it was necessary for the Court to resolve the issues.
Section 225(a) of the NTA requires that the Court provide a description of the people who hold the rights and interests comprising the native title. This is usually satisfied by providing the name of the claim group. However, in cases where issues of ancestry have been directly raised the issue will usually need to be resolved by the Court for the purposes of the determination.
In this matter, the Court relied on the oral history/evidence of the relevant families, historical and other documentary evidence, and anthropological analysis of the information.
Expert evidence
A conference of anthropologists was ordered by the Court. The experts noted that they had limited material on which to form their respective views but did agree that the relevant laws and customs concerning membership of the Boonthamurra people are that a person is a Boonthamurra person if the person is a descendant (biological or adopted) of a Boonthamurra person and is recognised by other Boonthamurra people as a Boonthamurra person.
Booth/ Fisher families claim
The Booth/Fisher family claimed to be part of the Wilson River group involved in only the southern section of the Boonthamura claim area through the lineage of an apical ancestor Clara and also claimed rights and interests over parts of the Wongkumara People claim area and the Kullilli People claim area.
Having regard to all of the evidence presented, the Court was not satisfied that Clara was a Boonthamurra person, or that she held native title rights in the Boonthamurra claim area. His Honour also found that the Booth/Fisher families’ claim to be Boonthamura People through another ancestor, Toney, was not made out.
McCarthy family claim
The McCarthy family claimed to be Boonthamura People on the basis of their descent from two persons who they claimed are Boonthamurra: the mother of Jack Mallyer Snr, and Kitty Wallerina (also known as Kathleen or Katie Thompson), the wife of Jack Mallyer Snr.
Mansfield J found that there was little evidence to prove these ancestors were Boonthamura. His Honour stated that the family’s evidence did not support their claim on the basis that:
their respective immediate upbringing was remote from the claim area and they were not brought up with other people recognised as Boonthamura People (other than their immediate family).
the family could say little by personal experience or from what perspective parents or grandparents told them to strengthen their connection to the present claim area;
the family claims connection to ‘Cooper Creek’ which is to the west and the “Wilson River Area’ around Nockatunga and Noccundra which is to the south of the claim area; and
the independent evidence pointed to Kitty being a Mithaka person.
Conclusion
Based on the collective evidence the Court concluded that there is no foundation on which the person representing the Booth/Fisher faimilies or the McCarthy family and who are parties to the Boonthamurra application have any status to remain as parties. Accordingly, under s 84(8) of the NTA the Court ordered that Geoffrey Booth, Dennis Fisher and Robert Burns cease to be parties to the application.