Mortimer J
In this matter the Court considered an application for a determination of native title by members of the Bularnu, Walluwara and Wangkayujuru People. The respondents were the State of Queensland, Mrs Bogdanek and 18 other parties including various shire councils, pastoralist and agricultural groups, Mount Isa Mines Ltd and Southern Cross Fertilisers Pty Ltd.
The application applied to land and waters in the central-western region of Queensland, between Lake Nash and Dajarra, adjacent to the border within the Northern Territory and South West of the town of Mount Isa. The area to the north of Toby Creek is associated with the Bularnu people, the area between Toby Creek and Mangala waterhole is identified with the Walluwara people, and the area to the south of Mangala Waterhole, extending beyond the claim area down to Cottonbush Creek, is identified with Wangkayujuru people.
There were portions of the claim area for which a determination of exclusive possession and non-exclusive use was sought, and very substantial parts of the claim area (mostly those parts occupied by permanent improvements and pursuant to pastoral leases) where the proposed determination recognised that native title does not exist and had been extinguished. All interested parties consented to a determination of native title in the form sought, except for a group of people represented by Lorna Bogdanek.
Respondent Bogdanek
Mrs Bogdanek was joined to the proceeding as a Respondent in September 2011 after her initial efforts to be part of the Wangkayujuru claimant group had been unsuccessful. Mrs Bogdanek’s extended family group are descendants of a Scottish pastoralist called James Craigie and an indigenous woman known as ‘Bunny’. James Craigie owned and operated Roxborough Station, which is in the south of the claim area. Ms Bogdanek asserted that the descendants of James Craigie and Bunny are entitled to be part of the claim group, that both the Wangkayujurru people and the Wankgkajutjuru people around Roxborough are part of the larger Wangkamadhla group to which she belongs and thus she holds rights to the identified area of Wangkayujurru country, which is in the south of the claim area. Ms Bogdanek’s role in the proceeding was as an individual respondent who articulates either a right to be part of the claim group, or a claim to country which could be seen as negating the native title claim made by the applicants. She could not, through the proceeding, obtain a determination of native title herself.
Ms Bogdanek was not legally represented throughout the proceeding.
Rights and interests claimed
The Bularnu, Waluwarra and Wangkayujuru Peoples claimed:
Over areas where exclusive possession can be recognised, the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
Over areas where exclusive possession cannot be recognised, the right to:
access, move about on, camp, erect shelters, and live on the area
hold meetings
hunt, fish, cook, and gather and use the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs
access to and use of the natural water resources
conduct ceremonies, and burials
cultural activities
maintain and protect places of importance
speak authoritatively and make decisions about the area among other Aboriginal People in accordance with traditional laws and customs
transmit the cultural heritage of the native title claim group including knowledge of particular sites;
the right to take and use, share and exchange the traditional resources of the application area
Issues to be determined
Whether the native title rights and interests claimed are held by the applicants
Section 223 of the Native Title Act 1993 (Cth) (NTA) requires the identification of the rights and interests said to constitute native title, and how those rights and interests have a connection with the land covered by the native title claim. Mortimer J considered the applicants' evidence amply demonstrated such 'connection' at [685] and that the laws and customs identified at [533] to [668] continued to be recognised, respected and practised by members of the group at [701].
His Honour went on to consider s225 of the NTA, which requires the identification of the person, or group of persons, holding the communal, group or individual rights comprising the native title. This included the position of indigenous people from outside the claim area who had special status, or roles in traditional law and customs with the claim group, and on the land the subject of the claim.
Based principally on evidence from the claimant group, but also on the opinions expressed by Dr Palmer, anthropologist, together with findings or opinions adopted or agreed with from other reliable sources, the Court was satisfied that the nature and content of the rights and interests in the claim area, in accordance with the laws and customs of the Bularnu, Waluwarra and Wangkayujuru people, has been maintained and has continued without substantial interruption since sovereignty at [701].
The nature and content of those rights and interests includes rights to refuse or regulate access to country, to impose conditions on access to country, to prohibit or restrict access to particular sites depending on gender, age, ritual knowledge or authority at [702].
Findings on contentious matters
Are the Wangkayujuru people part of the same society as Bularnu and Waluwarra?
His Honour noted that Mrs Bogdanek did not challenge a determination of native title in respect of country identified as Bularnu and Waluwarra country. Her primary contention was that Wangkayujuru people are part of a society with Wangkamadla and Wangkamanha people, and their country includes the south of the claim area and land further to the south, outside the southern boundary of the claim area.
Having regard to all of the evidence, the Court was not satisfied on the balance of probabilities that this is correct. Mortimer J relied on evidence from the claim group members and focused on the content of law and custom and the commonalities in content. He concluded that the Balurna, Waluwarra and Wangkayujury people share the observance of laws and customs which are fundamental to their connections to their country at [754].
The Court accepted that the evidence of Mrs Bogdanek did not establish any material differences in content and, if anything, tended to support the existence of shared content of traditional laws and customs. This did not mean that Mrs Bogdanek had failed to establish there is a society, of which her family may well be members, that includes Wangkayujuru and other groups (such as Wangkamadla and Wangkamanha) who share traditional laws and customs in a way that unite them in connection to country, so as to enable a finding of native title to be made. However, that kind of analysis must await a different proceeding at [769].
Is there another apical ancestor?
Mortimer J found that there was not enough evidence to conclude that Bunny Craigie (Mrs Bogdanek’s great grandmother) should be included in the claim as an apical ancestor. In para [848] Mortimer J states that the most likely hypothesis on the evidence before the Court is that Bunny Craigie was a Wangkamadla woman, whose country is well to the south of the claim area. The Court also noted that the evidence is overwhelming that the Craigie family were not regarded by any of the witnesses who gave written or oral evidence as having rights to country in the claim area, or as being part of the groups which make up the claim group. While acceptance or recognition may not be determinative of rights to country, because the evidence demonstrates those rights are passed by descent, His Honour concluded that the lack of recognition of the Craigies was consistent with the proposition that the indigenous Craigie ancestors came from outside the claim area, and to the south.
Remaining issues
In resolving inconsistent evidence about whether 2 men are properly considered Waluwarra Mortimer J was satisfied that the 2 men should be treated as having been adopted in accordance with traditional law and custom.
Mrs Bodganek argued that 3 men, Belia Toby, Deemera and Joe Rose, were brothers, and also rainmakers, along the Georgina River and therefore their descendants had rights to country within the claim area. His Honour found there was insufficient evidence to establish that Joe Rose was a brother to Belia and Deemera and what evidence existed suggests Joe Rose’s country is outside, and to the south, of the claim area.
Relying on the evidence before him, Mortimer J concluded that Belia and Deemera (and possibly Joe Rose) were regarded as rainmakers, who did have ritual presence and roles along the Georgina River, and therefore on country the subject of this claim. These rights were contingent, or invitational rights, gained from their command of rainmaking rituals and not rights to country. His Honour found that Belia and Deemera’s country was to the south and to the west of the claim area and they identified as Arrernte men.
Declaration
The Court declared that the claim group was entitled to a determination of native title in accordance with the proposed determination attached to the statement of claim with the applicant directed to file a final form of determination consistent with the Court's decision.