Barnes v Northern Territory of Australia [2011] FCA 879 (5 August 2011)

Last Updated: 5 August 2011

FEDERAL COURT OF AUSTRALIA

Barnes v Northern Territory of Australia [2011] FCA 879

Citation:		Barnes v Northern Territory of Australia [2011] FCA 879
Parties:		RODNEY BARNES v NORTHERN TERRITORY OF AUSTRALIA, COMMONWEALTH OF AUSTRALIA, ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O’KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) and AUSTCATTLE HOLDINGS PTY LTD ACN 010 055 384 ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O’KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) v NORTHERN TERRITORY OF AUSTRALIA
File numbers:		NTD 18 of 2009 NTD 6001 of 2003
Judge:		MANSFIELD J
Date of judgment:		5 August 2011
Catchwords:		NATIVE TITLE – whether native title rights and interests are held by a competing claim group, who form a subset of a wider claim group, in respect of a narrow area within the larger claim area of the wider claim group – or whether the native title rights and interests claimed by the smaller claim group are held in conjunction with, and as members of, the wider claim group –application dismissed
Legislation:		Native Title Act 1991 (Cth)
Cases cited:		King v Northern Territory [2007] FCA 944; (2007) 162 FCR 89 King v The Northern Territory [2007] FCA 1498 Long v Northern Territory of Australia [2011] FCA 571 Rosewood v Northern Territory of Australia [2011] FCA 572 Button Jones v Northern Territory of Australia [2011] FCA 573 Paddy v Northern Territory of Australia [2011] FCA 574 Simon v Northern Territory of Australia [2011] FCA 575 Carlton v Northern Territory of Australia [2011] FCA 576 Campbell v Northern Territory of Australia [2011] FCA 580 Wavehill v Northern Territory of Australia [2011] FCA 581 King v Northern Territory of Australia [2011] FCA 582 Young v Northern Territory of Australia [2011] FCA 583 Wavehill v Northern Territory of Australia [2011] FCA 584 Young v Northern Territory of Australia [2011] FCA 585 Rose (on behalf of the Kurnai Clans) v Victoria [2010] FCA 460 Rubibi Community (No 5) v State of Western Australia [2005] FCA 1025 Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422
Date of hearing:	14 - 16 March 2011
Place:	Adelaide (via video link with Darwin)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	73
In Matter NTD 18 of 2009:
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	S Brownhill
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Counsel for the Second Respondent:	The Second Respondent did not appear
Counsel for the Third Respondent:	T Keely and T Cole
Solicitor for the Third Respondent:	Ron Levy
Counsel for the Fourth Respondent:	The Fourth Respondent did not appear
In Matter NTD 6001 of 2003:
Counsel for the Applicants:	T Keely and T Cole
Solicitor for the Applicants:	Ron Levy
Counsel for the Respondent:	S Brownhill
Solicitor for the Respondent:	Solicitor for the Northern Territory

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 18 of 2009

BETWEEN:

RODNEY BARNES Applicant

AND:

NORTHERN TERRITORY OF AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O’KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) Third Respondent AUSTCATTLE HOLDINGS PTY LTD ACN 010 055 384 Fourth Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	5 AUGUST 2011
WHERE MADE:	ADELAIDE (VIA VIDEO LINK WITH DARWIN)

THE COURT, HAVING ORDERED:

1. That to the extent that the claim areas in Matter NTD 18 of 2009 and Matter 6001 of 2003 overlap (the overlap area), Matter NTD 18 of 2009 and Matter NTD 6001 of 2003 be heard together; and
   
2. The question raised in Matter NTD 18 of 2009 whether the Native Title Group Janba Gurdalanji in this matter holds native title rights and interests over the overlap area exclusively or whether such group is part of a group that holds native title rights and interests over the overlap area as claimed in Matter NTD 6001 of 2003 (the Rockhampton/Brunette Downs matter) be heard and determined as a separate question prior to the hearing and determination of any other question in the joint hearing of the two said proceedings.
   

THE COURT DETERMINES THAT:

1. The Native Title Group Janba Gurdalanji in Matter NTD 18 of 2009 does not hold native title rights and interests over the overlap area exclusively, but is part of a group that may hold native title rights and interests over the overlap area as claimed in Matter NTD 6001 of 2003 (the Rockhampton/Brunette Downs matter).
   

AND THE COURT ORDERS THAT:

2. The application in Matter NTD 18 of 2009 is dismissed.

3. The application in Matter NTD 6001 of 2003 is stood over for further directions to 9:00 am on 30 August 2011.
   

Note: Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 6001 of 2003

BETWEEN:	ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O’KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) Applicants
AND	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	5 AUGUST 2011
WHERE MADE:	ADELAIDE (VIA VIDEO LINK WITH DARWIN)

THE COURT, HAVING ORDERED:

1. That to the extent that the claim areas in Matter NTD 18 of 2009 and Matter 6001 of 2003 overlap (the overlap area), Matter NTD 18 of 2009 and Matter NTD 6001 of 2003 be heard together; and
   
2. The question raised in Matter NTD 18 of 2009 whether the Native Title Group Janba Gurdalanji in this matter holds native title rights and interests over the overlap area exclusively or whether such group is part of a group that holds native title rights and interests over the overlap area as claimed in Matter NTD 6001 of 2003 (the Rockhampton/Brunette Downs matter) be heard and determined as a separate question prior to the hearing and determination of any other question in the joint hearing of the two said proceedings.
   

THE COURT DETERMINES THAT:

1. The Native Title Group Janb4a Gurdalanji in Matter NTD 18 of 2009 does not hold native title rights and interests over the overlap area exclusively, but is part of a group that may hold native title rights and interests over the overlap area as claimed in Matter NTD 6001 of 2003 (the Rockhampton/Brunette Downs matter).
   

AND THE COURT ORDERS THAT:

2. The application in Matter NTD 18 of 2009 is dismissed.
3. The application in Matter NTD 6001 of 2003 is stood over for further directions to 9:00 am on 30 August 2011.
   

Note: Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 18 of 2009

BETWEEN:	RODNEY BARNES
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O’KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) Third Respondent AUSTCATTLE HOLDINGS PTY LTD ACN 010 055 384 Fourth Respondent
	NTD 6001 of 2003
BETWEEN:	ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O’KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) Applicant
AND	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGE:	MANSFIELD J
DATE:	5 AUGUST 2011
PLACE:	ADELAIDE (VIA VIDEO LINK WITH DARWIN)

REASONS FOR JUDGMENT

INTRODUCTION

1. This proceeding currently involves the determination of a separate question which affects two claims for the determination of native title under s 61 of the Native Title Act 1991 (Cth) (the NT Act).
2. The two claims are:

(1) the claim by Archie Allen and others as the applicant for a native title claim group called the Kutinja, the Kunapa and Mangirriji, and the Kunakiji and Lukkurnu Groups of the Warrumungu, the Kujuluwa, the Marrarrabana and the Garrgarrguwarja Groups of the Wampaya, the Purrukwara Group of the Wayaka, and the Ngapa Group of the Warlmanpa. That application has come to be called the Rockhampton/Brunette Downs native title application, adopting a description by reference to the common names of the two pastoral leases over the land to which that claim relates. It was commenced on 12 February 2003.

(2) the claim by Rodney Barnes (Gudulla) as the applicant for a native title claim group called the Janba Gurdalanji. That application has come to be called the Brunette Downs native title application, adopting a description by reference to the pastoral lease over the land to which the claim partly relates. It was commenced on 9 September 2009.

3. I shall call the first of those applications the Rockhampton/Brunette Downs application and the second, to avoid any possible confusion, the Barnes application.
4. The Barnes application area lies entirely within the Rockhampton/Brunette Downs application area, and comprises a relatively small part of it. As the two claims overlap, and as contemplated by s 67 of the NT Act, I ordered on 7 October 2010 that the two claims be heard together to the extent that the Barnes application overlaps with the Rockhampton/Brunette Downs application. I also ordered that the question whether the Janba Gurdalanji claim group represented in the Barnes application (the Barnes claim group) holds native title rights and interests over its claim area (the overlap area), or whether (as the Rockhampton/Brunette Downs claim group asserts) the Barnes claim group is part of a larger native title claim group which holds native title rights and interests over the overlap area be heard and determined prior to the determination of other questions raised in the two claims.
5. I made those orders for two reasons. The first is that Mr Barnes was anxious to have the Barnes application determined, so that his claim to exclusive native title rights in the overlap area, or more correctly the more confined area described below could be resolved before other questions were determined. Secondly, because the prospect of agreed resolution of either or both of the Barnes application and the Rockhampton/Brunette Downs application did not exist while that question referred to above remained undecided. The management of native title claims under the NT Act in the Northern Territory has involved the hearing and determination of a number of “test” cases. In King v Northern Territory [2007] FCA 944; (2007) 162 FCR 89, the subject of formal orders in King v The Northern Territory [2007] FCA 1498, there was determined a claim for native title rights and interests over a significant area over which there was an existing pastoral lease. The resolution of that claim was intended to provide a foundation upon which, in general terms but allowing for specific differences, a template for further determinations to recognise native title in land in the Northern Territory over which pastoral leases had been granted might progress. That program is now actively being pursued, and has resulted in a number of determinations of native title rights and interests over such land in the Northern Territory: see Long v Northern Territory of Australia [2011] FCA 571; Rosewood v Northern Territory of Australia [2011] FCA 572; Button Jones v Northern Territory of Australia [2011] FCA 573; Paddy v Northern Territory of Australia [2011] FCA 574; Simon v Northern Territory of Australia [2011] FCA 575; Carlton v Northern Territory of Australia [2011] FCA 576; Campbell v Northern Territory of Australia [2011] FCA 580; Wavehill v Northern Territory of Australia [2011] FCA 581; King v Northern Territory of Australia [2011] FCA 582; Young v Northern Territory of Australia [2011] FCA 583; Wavehill v Northern Territory of Australia [2011] FCA 584; Young v Northern Territory of Australia [2011] FCA 585.
6. Depending upon whether it is accepted that either the Barnes claim group or the Rockhampton/Brunette Downs claim group holds native title rights and interests over either of their respective claim interests, there is a real prospect of resolution of that claim or those claims by agreement in accordance with the process which has been undertaken. The process cannot satisfactorily proceed without resolution of the overlapping claims.
7. As Mr Barnes is unrepresented, directions were also given to assist him to the extent that it was appropriate to do so in preparing and presenting his case. That assistance included the provision of funds through the Northern Land Council (NLC) for travel and accommodation expenses for him and any of his proposed witnesses during the hearing, the provision of lists of proposed witnesses, the collation and preparation of books of documents by the NLC (who had certified in accordance with s 203 of the NT Act the Rockhampton/Brunette Downs claim) including mapping, copies of the applications, copies of the filed affidavits and details of other anthropological and like material which was available from public resources.
8. As it happened, although he had given notice of intention to call six witnesses, Mr Barnes himself was the only person to give evidence in the Barnes application for the Barnes claim group at the hearing. The Rockhampton/Brunette Downs applicants called four witnesses who were members of that claim group: Judy Holt, Shirley O’Keefe, Gerry Anderson and Morris O’Keefe and also an anthropologist, Dr Robert Graham. Dr Graham gave evidence by the adoption of a report which he had prepared on 4 March 2011 and by reference to a genealogy prepared by him as the genealogical history of the Rockhampton/Brunette Downs claim group. Mr Barnes, of course, was given the opportunity to consider it and test all of that evidence.

THE OVERLAP AREA AND THE DISPUTED AREA

9. It is convenient to say something about the geography and areas of the two claims. Both are in an area of land north-east of Tennant Creek and above the Barkly Highway, roughly east of Renner Springs. The larger area, the Rockhampton/Brunette Downs claim area, is the area largely covered by the Brunette Downs pastoral lease and by the Rockhampton Downs pastoral lease to its west. Small sections of the Rockhampton/Brunette Downs claim area also appear to include parts of the Dalmore Downs and Alroy Downs pastoral leases, and perhaps other pastoral leases. It is not necessary to refer to them in detail. The Brunette Downs pastoral lease occupies the majority of the north-eastern section of that claim area. To the east of the overlap area and also just east of the Rockhampton/Brunette Downs claim area is an area called Connell’s Lagoon. In the north-western part of the Rockhampton/Brunette Downs claim area is an area called Anthony Lagoon. Within the Brunette Downs pastoral lease, and so within the area of the Rockhampton/Brunette Downs claim area, lies the Barnes claim area.
10. The Barnes claim area, that is the overlap area, according to the original and amended application (the latter was filed on 25 August 2010) is roughly rectangular in shape, although the north-east and south-west corners are angled and the boundary of the north-west corner is irregular in shape. It is an area of about 70 km running from east to west and 40 km running from north to south. Within that area are areas described as Bandabugarri in the north-western section, Mamangki in the north-western and western central sections, Wanganararadja in the south-western section, and Ngulugumirri in the central south area. In the north-eastern section of the overlap area are two areas called Nanara and Darima. It is with respect to these two areas that most of the evidence was given and were the only areas which, on the evidence given and submissions made by Mr Barnes, are the areas in respect of which he claims native title rights and interests, at least in terms of his current application. The balance of the overlap area does not therefore need to be further considered in detail.
11. The south-western section of the overlap area partly contains Lake Sylvester. Running into Lake Sylvester from the north-eastern corner of the overlap area is Brunette Creek with its head waters further to the north-east. The community of Dingo Water Hole is at the north-eastern point of the overlap area through which Brunette Creek runs. Running south-west from that point along Brunette Creek, there are two further town communities, including the Brunette Downs homestead, which is more or less about a third of the way along that diagonal line from the north-eastern corner of the overlap area to Lake Sylvester in the south-western section of the overlap area.
12. Although the part of the overlap area over which the Barnes claim group in fact claims native title rights and interests as a separate group is not precisely defined, I shall call it the Nanara/Darima area. Both Darima to the south of Brunette Creek and Nanara to the north of Brunette Creek are in the north-eastern section of the overlap area, which is north-east from the Brunette Downs Homestead. The Nanara/Darima area includes a settlement sometimes called the Town Camp or the Old Town Camp.

Some 10 km north from the northern boundary of the overlap area, and above its approximate centre point, is an area called Kujulawa or Corella Creek. The Kujulawa area is roughly rectangular area, somewhat over 10 km in length and a little under 2 km in breadth. It is the subject of a grant of freehold land under Pt 8 of the Pastoral Land Act (NT) as a Community Living Area. It comprises in all 4,183 ha. It was formally granted on 20 October 1994, following an application made by Jack Cotton and others made through the Northern Land Council under s 102B of the then Crown Lands Act to recognise their occupancy of that area of land. At the time of the grant, a previous grant of a leasehold interest in that land to the Janba Gadarlindji Aboriginal Corporation was surrendered. That corporation was subsequently deregistered. That leasehold interest had been granted under the Aboriginal Councils and Associations Act 1976 (Cth) and had been granted by the then lessee of the land, the Gulf Cattle Company Pty Ltd (now AAC Co Ltd) as a sublease for 99 years granted on 17 September 1986. That interest, as I have noted, was surrendered when the Community Living Area was granted.

14. Part of the overlap area, and in particular an area within the Nanara/Darima area east of the Brunette Downs homestead was previously also the subject of an application for the grant of an interest under Pt 8 of the Pastoral Land Act (NT) as an Aboriginal Community Living Area. That was for an area of 480 ha made also in the name of Jack Cotton and others on 28 March 1991. That application was not pursued. It was an area bounded on the north by the main station access road, on the south by Brunette Creek, on the west by a line running north from the Ngunarra (Nanera) Waterhole and on the east by a fence running north/south and located about half way between the Ngunarra (Nanera) Waterhole and the Two Mile Waterhole on Brunette Creek.
15. Mr Barnes submitted his own Community Living Area application on 15 March 1996, amending a previous application submitted on 19 September 1995. The application made on behalf of his mother Vivien Lewis, his sisters and his children related to an area in the vicinity of Brunette Downs Racecourse, between the homestead and well yard, and proximate to the site, Darima. That application was unsuccessful, and was said to be, in the course of the hearing, a reason for Mr Barnes bringing this proceeding.

I note also, purely for the sake of completeness, that on 27 May 1997 the O’Keefe family made an application for the grant under the Aboriginal Land Rights (NT) Act 1976 (Cth) of an area of land west of the Brunette Downs Homestead on the Brunette Creek. That application was subsequently withdrawn on 24 December 2002 when it became appreciated that the application could not succeed because it was in respect of land which was not unalienated Crown land.

THE BARNES APPLICATION

17. The issue before the Court is whether the Barnes claim group, persons on whose behalf Mr Barnes as the applicant has made the Barnes application, hold native title rights and interests over that part of the overlap area which I have called the Nanara/Darima area.
18. The amended application of Mr Barnes identifies the native title claim group as Janba Gurdalanji. The group is said to comprise the descendants of Sarah Bulumbini, as the traditional owner of area identified in the amended application as Nguwnera (Nanera). It identifies a series of persons specified by name, who are the children of Sarah Bulumbini or grandchildren or further descent lines of Sarah Bulumbini. Mr Barnes claims to be a member of that native title claim group through his mother Vivienne Lewis Bibbie Wai-bulla, a daughter of Sarah Bulumbini so that Sarah Bulumbini is his grandmother. In the application, Vivienne is described as Bibby.
19. The Barnes application seeks that its native title be recognised over the Barnes claim area (now the Nanara/Darima area) on the basis of exclusive possession. It is expressed in the following terms:

Exclusive possession “against the whole world” to be custodial owners of, occupy, live on, use and enjoy all the land, waters and airspace in the claim area as marked on the map showing area known as Ngunnera where homestead Brunette Downs Station and area known as Darima the applicants have lived on, hunted on and used for ceremonies as described in this application.

And further claim the following native title rights and interests within the claimed area:

• Communal custodial ownership;
• Access and control the access of others;
• Identification with and speaking for country;
• Conduct ceremonies on the land and waters in connection with the airspace;
• Maintain fire in its many forms; protect sacred sites, consecrated ground and ground used for ceremonial purposes;
• Seek of inspiration and guidance within special places.
  

The rights and interests extend to those members of the native title claim group to practise culture, exercise religious freedoms and spirituality, under traditional custom and Law. This includes, but is not limited to, the right to use the lands, waters and airspace to live, practise healing, bury dead, give birth, marry, perform ceremonies, move within, travel through, teach, practise art, trade resources, hunt, fish, gather, collect, camp, protect heritage and reside within the claim area for the purpose of this claim and not excluding all our other lands and waters.

The rights and interests to the full right, under traditional custom and law to:

• Protect and control all items within the environment of the claim area, but not limited to trees, vegetation, animals, rocks, minerals, watercourses, items of cultural heritage, subsoil and airspace;
  
• Take anything available from Mother Earth and in the spiritual realm that allows us to maintain our cultural heritage and religious freedom, such as, but not limited to, food, timber, stones, feathers, resin, medicine, and shells, and to make such things including ceremonial objects, shelter, tools and hunting and fishing implements;
  
• Retail custodial ownership of all that is of a spiritual nature and active in our culture, as well as all intellectual property rights related to the land, air waters and all things natural in and of the claimed area;
  
• Use the land, air and water to teach and transmit knowledge in various forms of traditional custom, Law/Lore and Language to future generations and to control the possible misuse of cultural knowledge by others;
  
• Receive payment on an agreed basis for any resources taken by others from the application area;
  
• Claim our full right of sovereignty and self-determination, under international law. To our lands, waters, airspace and all things natural. The Janba Gurdalanji claim group has never ceded sovereignty, custodial ownership or connection to the claim area as marked on the map showing area known as Ngunnera where homestead Brunette Downs Station and area known as Darima the applicants have lived on, hunted on and used for ceremonies as described in this application.
  

20. As is customary, the application then says that Mr Barnes does not claim exclusive rights and interests in relation to areas subject to a previous non-exclusive possession act as defined in s 23F of the NT Act.
21. The application then describes the nature of the rights and interests claimed. It is said that under Janba Gurdalanji Law/Lore custom and tradition, the Barnes claim group can show a direct genealogical link to their family ancestors. They have continued to live on the land, hunt on it and use it for ceremonies and to walk about and control people who come onto the land. It is said that Mr Barnes has been recognised as the traditional owner or as Gadulee Muji being someone who belongs to the area known as Ngunnera (Nanara) and Darima, and that the rights claimed have been recognised by other tribal groups in the vicinity described as Jingalee, Wanyi, Yanulah, Allawarai and Garawa People. Details are given of the traditional laws and customs which govern their use of the claimed land (the overlap area), and of the activities they undertake in relation to the claimed land in accordance with those traditional laws and customs.
22. As noted above, the Barnes claim group is not claiming native title rights over the whole geographical scope of the overlap area as it is depicted in the map which comprises part of its amended application. The claim is confined, as Mr Barnes said in his evidence, to the “area known as Ngunnera [Nanara]” where there is the homestead of Brunette Downs Station and the area known as Darima (together referred to as the Narama/Darima area). Mr Barnes did not in his evidence or in his submissions seek to justify a wider area over which the Barnes claim group had native title rights.
23. The Barnes application also recognises the existence of the Rockhampton/Brunette Downs claim group with native title rights over a wider geographical area. In the amended application, Mr Barnes says that the members of that claim group are direct descendants of the Wombi (Wambaya) extended families within the Janba Gurdalanji People. Within that wider group, it is said that the Barnes claim group are the traditional custodial owners of the more confined Nanara/Darima area, having had an association with it unbroken from the beginning of time.
24. The Barnes application also hints at a significant matter possibly underlying the Barnes application. It refers to Mr Barnes having been told by the manager of the pastoral lessee, the fourth respondent in Matter NTD 18 of 2009, to stay off the land of the overlap area, and by the NLC, the relevant native title representative body under the NT Act, not to remain on it. The Brunette Downs Pastoral lessee is Austcattle Holdings Pty Ltd. To the extent necessary I shall refer below to that history in a little more detail.

What emerged from the evidence is that Mr Barnes has a passionate belief in his entitlement to live on the Nanara/Darima area, together with the other direct descendants of Sarah Bulumbini, and to control who can enter that land and how that land is used (or perhaps at a lesser level, a right to negotiate those matters), in particular to prevent degradation of it by the present pastoral lessee. The application is verified by a supporting affidavit of Mr Barnes affirming his belief that the native title rights and interests claimed by the native title group have not been extinguished.

THE EVIDENCE

26. As I have noted, Mr Barnes’ evidence was the only evidence adduced on behalf of the Barnes claim group. Mr Barnes’ evidence was in part received through written material he had submitted to the Court and which he adopted. One aspect of that concerned the relationship between the Rockhampton/Brunette Downs claim group, and his own claim. He regarded the former as “unlawful” within Aboriginal law and custom. To a degree, Mr Barnes’ assertions about the relationship between the two groups were argumentative rather than descriptive. I also discerned from the course of the evidence some animosity between Mr Barnes and Maurice O’Keefe. Other witnesses did not reveal such animosity towards Mr Barnes or the Barnes claim group (in essence his immediate family) in the course of their evidence. I think they understood and empathised with his particular circumstances. It is neither appropriate nor possible for the Court on a matter such as this routinely to address such animosity or to endeavour to resolve it. The Court’s role is defined by, and limited to, resolution of the particular legal question in issue. I do not consider that that apparent animosity impeded the ability of the Court to resolve that question. I have however made some further comments about it at the conclusion of these reasons for judgment.
27. Mr Barnes adopted the assertions in the Barnes application as amended, including the description of the claim group as Janba Gurdalanji. Mr Barnes repeated what was in the amended application that the Barnes claim group are the direct descendants of the larger Wombi (Wambaya) extended families within the Janba Gurdalanji People, and continue their ancestry dates back to the 1830s. He thus described the claim group as being the descendants of Sarah Bulumbina who was born in 1900 and passed away in May 1982. The application specifically names her children, grandchildren and great grandchildren. The application makes it clear that the claim group is limited to those persons. It also says Sarah Bulumbina was the traditional owner of the area identified as Nguwnera (Nanera), rather than any wider area. Mr Barnes also confined the claim to the “Nguwner and Darima” area.
28. The genealogy prepared and adopted by Dr Graham the anthropologist who gave evidence, traced the ancestry of Sarah Bulumbina back through Djimbu-Walu-Unu (Sarah’s father) and Nyarrarampi (Sarah’s grandfather). Mr Barnes was not aware of those details, although he said that the parents, grandparents and ancestors of Sarah Bulumbina lived on the claim area. The genealogy confirms that Sarah Bulumbina had four children, including Mr Barnes’ mother Vivian Lewis Bibbie Wai-bulla, and then shows her six children and her grandchildren (Sarah’s great grandchildren).
29. The genealogy also shows other descendents of Nyarrarampi, also born around 1900 including Bruce Piralamaji Gardaalanji.
30. In relation to the Nanara/Darima area near the Brunette Downs Station homestead, Mr Barnes said his family claim group had long lived and hunted on that area and used it for ceremonies and controlled access to that area, and claimed their interest in that land was recognised by other tribes such as Jingalee, Wanyi, Yanulah, Allawarai and Garawa People.
31. Mr Barnes’ evidence was that the traditional laws and customs relate to sacred spiritual laws which cannot be spoken in public, to the belief of spirit beings in the Nanara/Darima area land and waters, to the access to sacred sites and ceremonial areas, to the use of fire, to the behaviour in relation to cultural objects, to the forbidden or limited access of certain members of the Barnes claim group to certain parts of the Nanara/Darima area, to the taking and use of resources from that area, to hunting and gathering and the preparation and sharing of food, to trading and exchange of resources from that area, to ceremonial practices, birthing, marriage and burial rules and ceremonies, to the control of access to the claim area by others, to maintaining and passing on the Dreaming Stories in relation to the claim area, and to individual identification with particular aspects of the claim area.
32. His evidence was further that, in the exercise of those rights and interests, the Barnes claim group, through a patrilineal system, maintains the responsibility of custodial ownership of the Nanara/Darima area; to hand down the oral traditions and to enact the Dreaming Stories and Song lines and to pass them down; to continue to hunt, gather, fish, camp and make tools on the land; to protect the sacred sites and ceremonial sites on the land, including by training and passing on their knowledge to the younger members of the claim group to use and respect women’s and men’s sites and traditional resources and artefacts including grinding stones, red ochre, and quartz crystals; to maintain culturally important features of the land due to their spiritual and cultural significance; and to conduct ceremonies and preserve the land and its resources. Mr Barnes gave evidence that he had participated in ceremonies on the Nanara/Darima area and had, as a young man, seen the elders of the community engaging in those ceremonies. He said that he and his family had lived on the Nanara/Darima area for many years, and that he had progressively taught and continued to teach his family the laws and customs of that country. He said that The Old Camp area and other areas near the Brunette Downs homestead were places where there are sacred sites, and where men’s ceremonies have taken place including initiation ceremonies at a place called Yarambai Ground. He is concerned that the pastoralist, together with the NLC, is either allowing or contributing to the progressive degradation of those sites. He is aware of parts of that area where certain people should not go or certain things which should not be touched. He himself is an initiated man. He wants to keep the land, with its traditions and important features and to look after it, so that it cannot be bought or sold. He strongly says that he has never given up rights to his country, the country of his mother and his grandmother. He was born into those rights and was guided in his younger years by his elders into a fuller understanding of the country and his relationship with it.
33. I accept Mr Barnes’ evidence about his long relationship with the Nanara/Darima area, and his educational and ceremonial experiences on that country and its wider environs. I accept his genuineness about his very strong feelings of being part of that land, and of his obligations in relation to it.
34. However, as the discussion below indicates, the determination of the issue the subject of this matter is not resolved by whether I accept that evidence, but whether upon the whole of the evidence including Mr Barnes’ evidence I am satisfied that the native title rights and interests which Mr Barnes claims on behalf of the Barnes claim group are in fact held by that group in relation to the Nanara/Darima area. Mr Barnes says that there are two separate native title holding groups of the Wombi People: he and his group have the country known as Ngunnera, and Maurice O’Keefe (and his sister Shirley O’Keefe) have the country at Corella Creek (Kulujulu).
35. It is necessary therefore to refer to the other evidence. That evidence included the evidence of Judy Holt, Shirley O’Keefe, Maurice O’Keefe and Gerry Anderson, as well as that of the anthropologist Dr Robert Graham, and further documentary material.
36. Judy Holt was born at Brunette Downs at The Old Camp, and grew up there. Her children were born there. She worked at the Brunette Downs station. She then moved to Tennant Creek due to illness, but there was still at that time a community at Brunette Downs/Narama which extended well beyond the Barnes family. She confirmed that the senior man for the wider country, including Brunette Downs generally (which includes the Nanara/Darima area), when she was young was Bruce Piralamaji, and subsequently Jack Cotton (a son of Nora, and a sister of Sarah Bulambina). She confirmed the evidence of Mr Barnes about the range of activities apparently reflective of traditional Aboriginal laws and customs, and about certain Dreamings, associated with the country including in the Nanara/Darima area. She said the senior people for the country generally now, including the Nanara/Darima area, were Maurice and Shirley O’Keefe through their mother Gladys O’Keefe and Bruce Piralamaji. She gave evidence of the close association of Jack Cotton and Mr Barnes’ mother, Vivienne Lewis Bibbie Wai-bulla.
37. Shirley O’Keefe’s evidence was to much the same effect. She was born in 1961. She too was born at Brunette Downs, as was her brother, Maurice O’Keefe. She stayed at Brunette Downs area for lengthy periods during her growing up, schooling and young working life. Some of her children were born there. In the 1990s she and two of her children went to live at Corella Creek. After her marriage she lived at Tennant Creek. Her evidence about the activities associated with Nanara/Darima area and the Dreaming stories associated with those places was consistent with the other evidence. Indeed her Indigenous name is associated with the Eaglehawk Dreaming story at that place. She, too, regarded the area as her country through her father Bruce Piralamaji. She said he also had the name Gardalanji from the gardji tree in the country not far from The Old Camp and near the homestead. Many members of the wider group but including the Barnes group were born there, and were buried in its vicinity. She recalled a meeting in about 1993, following the death of Jack Cotton, which took place at Nanara to discuss who should then be the senior people for that country.

Contrary to Mr Barnes’ recollection, she disputed that it was decided that the O’Keefe and Green families would relocate to the Corella Creek area as “their country” and the Barnes family would stay at Nanara as “their country”. That is, she disputed that such an agreement was made as a means of allocating country between those groups, even on an informal basis. She also disputed that, according to the traditional laws and customs of the Indigenous people who had lived around the area for many years, including the earlier generations, there was an accepted means by which such a division of rights could be effected, or that it had even been attempted.

39. Another witness was Gerry Anderson, whose father was Horace Anderson (another husband of Gladys O’Keefe). He also grew up at Brunette Downs and lived and worked there until about 1967, in the Town Camp. He too knew Bruce Piralamaji, and recognised that man as the boss of the general Brunette Downs country including the Namara/Darima area. He too was, and is, part of the group who claims to hold native title rights over the Rockhampton/Brunette Downs claim area, including both the overlap area and the more confined Nanara/Darima area. He described similar activities over the area generally, including the Nanara/Darima area, engaged in by a large group not confined to the Barnes claim group. He knew Mr Barnes’ mother and his grandmother. He also firmly said that the Nanara/Darima area was one over which a wide group of persons engaged in the activities, and held the beliefs, which would demonstrate the existence of native title rights and interests over that area. There were, he said, a large number of people who were born and grew up in the Nanara/Darima area. He now considers that Maurice O’Keefe is the senior man for that wider area which includes the Nanara/Darima area.
40. Maurice O’Keefe was born in 1951 at Brunette Downs and also grew up and worked there. His father was Bruce Piralamaji, who passed away when Maurice was about 10. In 1974 he moved to Queensland for a time, but returned to Brunette Downs in 1977. Due to a disagreement, he lived more at the Corella Creek area after that time, and in 1994 supported the grant of that area as a Community Living Area. He said he was one of the traditional owners of Nanara through his father and grandfather. Like the other witnesses, he described similar activities, ceremonies and Dreamings associated with Nanara and said he is now the main person for that area and the wider country. He agreed that in about 1993 there was a falling out between himself and Mr Barnes.
41. The only expert evidence was given by Dr Robert Graham, a well qualified and experienced anthropologist.
42. Dr Graham conducted extensive research in relation to the Brunette Downs area as early as 1997, when considering Mr Barnes’ application for a Community Living Area grant referred to above. He says the area was known then as the Armchair Paddock Area, and comprised some 42.5 square kilometres. His research included interviews with Mr Barnes and with his mother Vivienne Lewis (who was then living at Tennant Creek), as well as with many others. He did not formally complete that work as Mr Barnes decided to pursue that claim through a different solicitor and anthropologist than those provided by the Northern Land Council. Dr Graham for the purposes of his evidence, also had the benefit of the research of another consultant anthropologist, Dr Michael Niblett, whose research was prompted by an application in May 1997 under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) for a grant of land over or in the vicinity of the racecourse reserve. It is in the overlap area, but not in the Nanara/Darima area. Dr Graham also arranged for further research to be carried out relating to the current two claims in 2011.
43. Dr Graham confirmed that the overlap area lies within the wider Rockhampton/Brunette Downs claim area, country that is associated with the Wambaya language group. From the ethnography, the existence of that language group as a social organisation of Indigenous people cannot be doubted, which included the Rockhampton/Brunette Downs claim group. That material also shows a close association between the Wambaya and Gudanji language group to the north, through language, marriage, ceremony, shared residence and work history. He indicated that the elements of the wider Wambaya society inform the individual’s rights and interests in land, include the moiety and subsection systems; the kinship system of named relationships between persons; belief in the creative Dreaming and its mythology and ritual, and the organisation of rights to country or estates, sites and Dreamings in terms of patrilineal descent. His report of 4 March 2011 explains those features in detail. Consistent with the thrust of the other oral evidence, he confirmed that the overlap area is associated with the Eaglehawk Dreaming.
44. The material available to Dr Graham shows that the person primarily responsible for that country was Bruce Piralamaji, and that following his passing away, his children took over that responsibility. There may be some room for internal consideration about which of his children, or further generations, has assumed that responsibility or how it has been fulfilled.
45. Ultimately, the oral evidence (including from Mr Barnes) confirmed that Bruce Piralamaji and before him his father (vaguely recalled in the 1997 research referred above at [41] as Nyarrampi) had that responsibility.
46. The oral evidence (including from Mr Barnes) also tended to confirm the genealogy prepared by Dr Graham (with the corrections he made at the commencement of his evidence). I accept that genealogy as reliable. That, and other evidence, shows that Bruce Piralamaji was born in 1902, and spent much of his life on Brunette Downs. I accept Dr Graham’s evidence, consistent with all the oral evidence, that Bruce Piralamaji was the senior man for the Indigenous group with rights and responsibilities over the Rockhampton/Brunette Downs area including the Nanara/Darima area. Bruce Piralamaji married Gladys O’Keefe and they had four children. Those children are now senior members of the Eaglehawk Group, and have a responsibility for that area, including the Nanara/Darima area. They are now members of the O’Keefe family group, as Gladys O’Keefe married Jack Rennie after the passing away of Bruce Piralamaji and she and the children of Bruce Piralamaji took on the O’Keefe name. It is also clear that Mr Barnes and his family are members of that wider group. That is because they have such rights through their mother and grandmother. Sarah Bulumbina’s father was the elder brother to Bruce Piralamaji.
47. Dr Graham’s evidence left no scope for there being a separate area, whether it be the overlap area or the Nanara/Darima area, within the Brunette Downs area, which was separately held by a more narrowly defined group of native title holders defined as the Barnes group. The material he assembled showed that the Eaglehawk Group had principal sites both in the Corella Creek area and in the Brunette Creek area or overlap area. Members of the O’Keefe family have been listed by the Aboriginal Areas Protection Authority as principal custodians of significant sites in the area including sites at Nanara and Darima. The recording of certain Dreaming Stories, including both the Eaglehawk Dreaming and the Rainbow Snake Dreaming, has consistently noted that a wider group is responsible for those stories, and not simply the Barnes group. Neither the overlap area nor the Nanara/Darima area has been separated from, or isolated from, that wider area or from those persons who constitute the wider group.
48. Mr Barnes disputed the anthropological evidence of Dr Graham. He did so on two bases. The first is that Dr Graham was, from 1997 when they first met at The Town Camp at Nanara, a supporter of the extended group (including those by then living at Corella Creek – the Tony Green family, the Betty Finlay or Tennyson family and the Joy Priest family) and so had a closed mind to whether the Barnes claim group held native title over the Nanara/Darima area. At that time, Dr Graham (according to Mr Barnes) said that Maurice and Teddy O’Keefe were too young to be authorised to bring the proposed Rockhampton/Brunette Downs claim and that Elizabeth Cotton and her family were proper claimants for the subject area. At the time, Mr Barnes disputed that assertion. He said the meeting broke up in acrimony. He said he then realised that the NLC wanted to use his (Mr Barnes’) application for a Community Living Area grant to assist Tony Green and his family to establish native title interests in the overlap area. He alleges that Dr Graham said at their second meeting in 1998 that the NLC would fight Mr Barnes’ claim to the Nanara/Darima area. More broadly, he says Dr Graham and the NLC would not recognise the separate claim groups as they wished to retain influence or power despite as Mr Barnes contended the existence of two separate native title holding groups. He went so far as to allege both Dr Graham and the NLC were deliberately misrepresenting the nature of the relevant land holding group. He rejected the suggestion that Tony Green and his family have any interest in “Brunette Downs” (which I understood to be a reference to the Nanara/Darima area).
49. Despite those criticisms, I have no doubt about Dr Graham’s professionalism or his independence. Nor do I have any reason to doubt the good faith or the commitment of the Northern Land Council. I think Mr Barnes’ criticisms of them are a consequence of his strong emotional belief in his entitlement to be recognised as the native title holder of the confined area, and that not enough has been done to preserve and protect it. I have had the benefit of seeing Dr Graham give his evidence. He was professional, thoughtful and careful. He was thorough. He had solid foundations for his opinions. He strongly and impressively rebutted the suggestion that his views were coloured in any way by a dislike of Mr Barnes. I have no hesitation in accepting him as an impartial and reliable witness.

CONSIDERATION

50. Section 223 of the NT Act defines the term “native title rights and interests”. It provides:

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

51. The term “interest” is defined in relation to land and waters in s 253 to mean:

Interest, in relation to land or waters, means:

(a) a legal or equitable estate or interest in the land or waters; or

(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i) the land or waters; or
(ii) an estate or interest in the land or waters; or

(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters.

52. The nature of a determination of native title is described in s 225 of the NT Act in the following terms:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

53. The fundamental requirement for the particular question to be answered affirmatively, and so for the Barnes application to succeed, is to satisfy the Court that the Barnes claim group is a body of persons united in and by its acknowledgment and observance of a body of traditional laws and customs, which constitute a normative system under which those rights and interests are created. See Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at [29], [47] and [49].
54. The dispute is largely a factual one, albeit a complex factual one. It is whether the relationship of the Barnes claim group to the Nanara/Darima area is of the character referred to in the preceding paragraph, so that they hold native title rights over that area in their capacity as members of the Barnes claim group or whether they do so in the wider capacity as members of the Rockhampton/Brunette Downs claim group. If it is the former, it is necessary that their particular interests as a subgroup of the wider claim group must be shown to have been enjoyed by them as that narrow group under the traditional laws and customs acknowledged and observed by them at least since sovereignty, and have continued to be enjoyed in that capacity since that time, to the exclusion of the wider claim group.
55. As appears from Rose (on behalf of the Kurnai Clans) v Victoria [2010] FCA 460, it is not enough that the Barnes claim group are a subset of a wider community whose traditional laws and customs determine who has interests in particular sites or areas. Indeed, there may be a subset of Indigenous persons with particular interests in particular sites or areas of the area of a larger communal group. However, s 223 requires that the subset, or narrow group, must in that confined capacity be the holders of the native title rights and interests. They must show that under the traditional laws and customs of that group, they constitute a separate group with normative laws and customs which existed at sovereignty and which gave them the rights which they now assert over the Nanara/Darima area to the exclusion of others and that, subject to any issues of extinguishment, they have continued to exercise those rights and interests over the Nanara/Darima area and that others, whether the Rockhampton/Brunette Downs claim group or some other different group, did not hold and enjoy native title rights and interests over the Nanara/Darima areas at least since white settlement. A similar issue arose in Rubibi Community (No 5) v State of Western Australia [2005] FCA 1025.
56. Ultimately, as I noted, the legal principles are not in issue but it is their application to the facts which is the matter to be addressed and hence the necessity to have careful regard to the whole of the evidence to resolve that question.
57. In Rose there were also two competing claim groups asserting native title rights and interests over particular country, one smaller group which asserted that status in relation to a narrower or smaller area of land, and the other larger group which asserted that status over a wider area of land which included the narrower or smaller area of land. North J at [94] said that the question in those circumstances was quite a narrow one. His Honour was faced with the need for the particular smaller group to show that none of the living descendants of the ancestral sets, of which the smaller group claimants derived from one line, formed part of the potential native title holding group. That is a similar issue to that which arises here. Mr Barnes has to show, on behalf of the Barnes claim group that the descendants (of which he is one) tracing their descent back to Vivienne Lewis and Sarah Bulimbina are the only persons who, under the traditional laws and customs, now enjoy native title rights and interests over the Nanara/Darima area, even though the upper generational records may not have so confined those who enjoyed native title rights over that area. He has to exclude others who may have such an interest in that area to maintain the narrow Barnes claim group as the correct holders of native title over the Nanara/Darima area both now and for past generations.
58. I have discussed the evidence above. In my view, Mr Barnes has not demonstrated that. Indeed, in my view, the overwhelming evidence indicates that the Barnes claim group is part of that group of Aboriginal persons who enjoy, or may enjoy, native title rights and interests over the Rockhampton/Brunette Downs claim area, including the Nanara/Darima area. There is no evidence which indicates that the overlap area (including the Nanara/Darima area), prior to about 1985, was not an area over which the wider communal group constituted by the Rockhampton/Brunette Downs claim group (including the Barnes family) did not in accordance with the traditional laws and customs of their successors enjoy and practice native title rights and interests. That is demonstrated by the history, the anthropological evidence of Dr Graham, and by all the witnesses who gave evidence, including Mr Barnes. His own submissions indicated that he acknowledged that, for all purposes other than the small Nanara/Darima area, the Barnes claim group was a subset of the wider group. He did not adduce any cogent evidence that, prior to the time when the Corella Creek settlement was established, his subgroup were the only persons who enjoyed native title rights and interests over the Nanara/Darima area. He acknowledged that the contrary was the case. There is nothing in the genealogy which would warrant such a limitation. The evidence of what took place in relation to the overlap area, and in particular in relation to the areas adjacent to the Brunette Downs Homestead, the Nanara/Darima area, does not support his contention. The application originally by Jack Cotton in 1991 to have a Community Living Area declared in the Nanara/Darima area on behalf of himself and a significant number of other indigenous persons and their families demonstrates that at that time persons other than the Barnes claim group asserted interests in the Nanara/Darima area.
59. The claimed status of the Barnes claim group does not sit well even with the relatively recent history relating to the Nanara/Darima area. The name ascribed to it by Mr Barnes “Janba Gurdalanji” is a combination of the Wambaya words “Jamba” meaning ground or earth and “Gardalanji” meaning people of the Brunette Downs. The Janba Gurdalanji Aboriginal Association, incorporated in 1979 for people resident at Brunette Downs and the lessee of the Corella Creek sublease from 1986 until it was surrendered when the Community Living Area was granted there in 1994, does not suggest any such restriction. Nor does the application by Jack Cotton in 1991 for a Community Living Area in respect of an area at about the place of the Nanara/Darima. The genealogy showing the relationship of Bruce Piralamaji and his successors to Sarah Bulumbina and her successors does not do so, as Djimbu-walu-unu the father of Sarah Bulumbina was the brother of Bruce Piralamaji (confirmed by Jack Cotton). The Wambaya (Wombi) language group, which includes Mr Barnes (as he said) and his ancestors, is a group whose country extends well beyond – but includes – the Nanara/Darima area. All the research of Dr Graham, including information provided by Mr Barnes’ mother, indicates that the Nanara/Darima area is part of the country of the wider group and not country specifically confined to the Barnes claim group. Mr Barnes himself accepted that he had been initiated into the wider Wambaya country, history and culture. The Brunette Downs Eaglehawk group, another description of the Rockhampton/Brunette Downs claim group as used in the evidence, is an estate group with primary patrilineal descent, consistent with the anthropological evidence. It is, or is likely to be, the holder of native title over the Rockhampton/Brunette Downs claim area including the Nanara/Darima area.
60. On Mr Barnes’ submissions, the features of the Barnes claim group or of Mr Barnes which might distinguish him or the Barnes claim group from the wider group are threefold. First, Mr Barnes’ mother is buried in the vicinity of the Brunette Downs homestead. Second, Mr Barnes clearly has a strong personal conviction that the Nanara/Darima area is his country and that he must look after it. Thirdly, and related to the second, Mr Barnes strongly opposed the grant of the Community Living Area at Corella Creek as he thought that such a grant might preclude a Community Living Area grant in the Brunette Downs homestead area. None of those matters make any real inroads into challenging the strong weight of evidence against the contentions of the Barnes claim group, that they separately hold native title over the Nanara/Darima area in their own right as a subgroup of the Rockhampton/Brunette Downs claim group. There is no other evidence which might support that claim. Mr Barnes’ mother, Vivienne Lewis did not make such a claim when interviewed by Dr Graham in 1997, and Mr Barnes himself at the time recognised the status of Bruce Piralamaji in relation to the area.
61. Mr Barnes, as a child, came to know Bruce Puralamugi and other traditional elders, including one named Pluto, the husband of Molly Hayes. He says he “stood with Puralamugi’s children as a traditional owner group children”. He says however that it is necessary to appoint a Jungujii or ceremonies man for the Brunette Downs area, who must be a male (contrary to Dr Graham’s views), precluding Shirley O’Keefe from becoming its Jungujii. Mr Barnes says Dr Graham’s work lacks an understanding of the regional native title laws and customs. He specifically rejects the suggestion that Tony Green and his family and Kathleen O’Keefe and her family are part of a group having native title rights over “land on Brunette Downs” (I assume he is confining his comment to the Nanara/Darima area), and that they “do not belong to this country”. The successive generations from Shirley O’Keefe (he says) would follow the traditional country of their upper generation matriarchal side, and Keith Duncan in particular (he says) has never been a Wambaya (Wombi) man or held land on Brunette Downs, as his patriarchal forbears Keith Duncan and Peter Hogan were Gudanji Garawa or Wannyi men. The O’Keefe direct descendants of Rennie O’Keefe are said not to have interests in the Brunette Downs area because Rennie O’Keefe was a Gudanji man whose country was around the MacArthur River area of the Gulf and their mother Gladys O’Keefe is a Wagaya person whose country is in the Alexandria or Illora areas, again remote from the Brunette Downs area.
62. Mr Barnes also criticised Dr Graham’s use of the words Gudaltmuji or Gardalantji as not used as indicating association with the Brunette Downs area, contrasted with Godallj or Gudallitji which are Wambaya (Wombi) words referring to people on Brunette Downs. He says Wambaya (Wombi) properly describes “the tribe of Brunette Downs” and Gudalla describes the location of the Brunette Downs homestead and its immediate surrounds, extending to The Old Camp. Mr Barnes also said that the Rockhampton/Brunette Downs group was not a group capable of holding native title under the NT Act, but he did not really explain why not. I understand his evidence on that aspect really to be expressing a concern that that wider group would not protect native title rights and traditional laws and customs in relation to Brunette Downs.
63. I have already indicated that I accept the evidence of Dr Graham. In my view, his evidence was given fairly and carefully. I therefore do not accept Mr Barnes’ criticisms of his evidence. Indeed, the criticisms do not sit well with much of what Mr Barnes himself said and acknowledged.
64. Mr Barnes acknowledged the existence and status of Bruce Piralamaji and his descendants, including the O’Keefe family. He referred to a meeting with the NLC in 1993 held at Brunette Downs at which (he said) he strongly asserted his claim to the Nanara/Darima area and that Maurice O’Keefe and Shirley O’Keefe had a claim to the Corella Creek area (or Kulujulu area). He maintained the claim that they have no rights over the Nanara/Darima area. The meeting was, I find, to consider the potentially competing Community Living Areas claims, and any discussion about the O’Keefe family pursuing or having interests in the Corella Creek area was only in relation to their proposed living arrangements. It was not an acknowledgment that they did not have native title rights in the Nanara/Darima area.
65. Mr Barnes recognised that aside from the immediate descendents of Sarah Bulambina, others had interests in the overlap area, including the Nanara/Darima area. He said that his grandmother Sarah was a Wambaya (Wombi) woman. Despite his assertion that there were two separate streams of Wambaya (Wombi) descendants from the upper country with separate exclusive native title rights and interests held by those groups, his evidence was more in line with Dr Graham’s views.
66. Mr Barnes was born in 1957. He lived in Tennant Creek from about eight years of age, periodically returning to Brunette Downs. In about the late 1960s Jack Cotton, the son of a sister of Sarah Bulambina, brought together the families of that generation, including of Bruce Piralamaji (who Mr Barnes accepted was then the senior elder or boss for Nanara) at Nanara as the place where the Eaglehawk Dreaming started. He accepted that Bruce Piralamaji was the “old boss man” for that area, and that his descendants included the O’Keefe family including Maurice O’Keefe. He accepted that Maurice O’Keefe had rights everywhere in that area (referring to a wider area but including Nanera), as too did he. Mr Barnes then refined his claims by saying he had extended rights in the Nanara/Darima area. In cross-examination, he also accepted that, although the laws and customs of the wider group (including the Barnes claim group) prescribed patriarchal succession, that was not necessarily the case. A descendant of an elder person could follow the country of either the mother or the father. Hence, Jack Cotton was able to assert his interest in the Brunette Downs country through his mother, as could (for instance) Maurice O’Keefe through his mother Gladys O’Keefe. Keith Duncan had chosen to follow Wannyi country line through his father rather than the Brunette Downs country through his mother.
67. Mr Barnes had some difficulty in maintaining the claim to exclusivity in the Nanara/Darima area. He agreed it was not in fact the boundary of the Barnes claim group traditional land, but that it could extend to Kulujulu (Corella Creek). He confined the claim area to the Nanara/Darima area in an attempt to avoid confronting any other claim. However, if Bruce Piralamaji and the father of Sarah Balambina were related, as the genealogy indicates, he accepted, they would have shared their country, as would their successors. It would be (Wambaya) Wombi country and that would have included the Nanara/Darima area. Consistent with that, Mr Barnes accepted that, when he was a young man, Bruce Piralamaji was the senior man for the general country including the Nanara/Darima area, and had helped him “grow up”. After that, Jack Cotton was a senior man for that country until he passed on in about 1993. Having taken that path in his evidence, Mr Barnes said “we are one” but we have special places within the one country, and that his grandmother Sarah Bulambina had the special place at Nanara and Darima, so he and his family are entitled to live there. He also suggested that, by choosing to live at the Community Living Area at Corella Creek, Maurice O’Keefe and his family were now following an alternative path and so (by inference) no longer had native title rights in the confined area, although he accepted that it was a place that they too felt connections with. I have already rejected that contention. Mr Barnes and his family, he said, had different rights by being born at Nanara, by identifying with that place, and by the depth of his feeling and connection with that place. Ultimately, he accepted, however, that he had no rights to exclude (for instance) Maurice O’Keefe and his family from that area, and on the other hand that the Barnes claim group rights also extended to the wider Rockhampton/Brunette Downs claim area. In that event, those rights must exist as part of the larger claim group.
68. It was apparent that Mr Barnes feels very strongly that the Nanara/Darima area requires vigorous protection from being further degraded by other activities on that area, in particular those of the present pastoralist, and that he saw himself as the appropriate – and I suspect the only – person who would forcefully take on that role. But, it is equally apparent from Mr Barnes’ evidence during his cross-examination that the claim exclusively to hold native title rights over the Nanara/Darima area through Sarah Bulambina to the exclusion of others who he accepted were the descendents of Bruce Piralamaji cannot be sustained. Those rights were rights enjoyed by a wider native title group rather than one comprising only her direct descendants. Mr Barnes acknowledged as much. There is no traditional law or custom of that wider group demonstrated which would support the segregation of those rights into separate areas in the way that Mr Barnes now asserts to have occurred only in the course of the last generation or so. I do not accept that that has occurred in accordance with the traditional laws and customs of the holders of native title in the wider Rockhampton/Brunette Downs claim area which existed at the time of sovereignty. Nor do I accept that at that time there was a separate group of native title holders defined or identified only by the ancestors of Sarah Bulambina which was confined to the enjoyment or exercise of those native title rights over the confined Nanara/Darima area. The statement of the proposition demonstrates its fallacy. The evidence in cross-examination of Mr Barnes did not support any such proposition. It is not consistent with any of the evidence.

I do not find that the Barnes claim group, as it is defined, are the successors of a group of persons who, at sovereignty and under their traditional laws and customs that had normative content, enjoyed native title rights and interests in the Nanara/Darima area to the exclusion of others.

70. It follows that the Barnes claim group is not a group of persons who hold native title in the Nanara/Darima area. They are part of a wider or larger group who hold native title over the larger Rockhampton/Brunette Downs area. It is not necessary for present purposes to determine the extent of that area, or the precise description of that claim group. However it is defined, it would include the descendants of Sarah Bulambina, and so it would include Mr Barnes and his descendants. At present, any native title interests Mr Barnes and the Barnes claim group holds in the Nanara/Darima area are held in conjunction with, and as members of, a wider group.
71. The separate question is therefore answered in the negative. The consequence is that the Barnes application must be dismissed.
72. This is not a matter where, apparently, there was any direct dispute as to whether there were at the relevant settlement date a group of Aboriginal persons who enjoyed native title rights under the traditional laws and customs in relation to the land which is the wider claim area, under a normative system of laws and customs. Nor is it a matter in which, apparently, there is a dispute that those persons, however that group may be identified, have since settlement continued to enjoy and practice those laws and customs and to enjoy those rights and interests derived from those laws and customs. It is not necessary or appropriate to make findings about those matters. They have not yet been the subject of full consideration.
73. It will now be a matter for the claimants in the Rockhampton/Brunette Downs application to pursue their claim for native title rights and interests in respect of the claim area (including the overlap area). As I anticipated at the commencement of these reasons at [6], it might be anticipated that in the reasonably proximate future the entitlement of those persons to native title rights and interests may be established subject to recognising the extinguishing effect of the grant of pastoral leases over the claim area and to precisely define the native title rights and interests and the other matters to which attention is drawn by s 225 of the NT Act. It is likely (and it was not disputed by the Rockhampton/Brunette Downs claim group) that those rights and interests will be held on behalf of the wider claim group, which will include Mr Barnes and his family. It then becomes a matter for the wider claim group, as a matter of internal management, and probably through its prescribed body corporate, as to how Mr Barnes and his family are accepted and treated within that claim group, and as to how the anticipated native title rights and interests in the Nanara/Darima area – as well as the wider area – are exercised. That is not a matter which is before the Court at this point in this proceeding.
    

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 5 August 2011