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Aboriginal Land Rights (Northern Territory) Act 1976GARRWA (WEARYAN AND ROBINSONRIVERS BEDS AND BANKS)LAND CLAIM No 178Report and recommendations of the Aboriginal Land CommissionerJustice H W Olneyto the Minister forImmigration and Multicultural and Indigenous Affairsand to theAdministrator of the Northern TerritoryOffice of the Aboriginal Land Commissioner9-11 Cavenagh StreetDARWIN NT 0800July 2002

© Commonwealth of Australia 1999ISBN 1 876591 21 8This work is copyright. Apart from any use as permitted under the Copyright Act 1968,no part may be reproduced by any process without prior written permission from theCommonwealth available from Ausinfo. Requests and inquiries concerning reproductionand rights should be addressed to the Manager, Legislative Services, Ausinfo,GPO Box 1920, Canberra 2601.Produced by the Aboriginal and Torres Strait Islander Commission.PRINTED BY: Panther Publishing and Printing, CanberraCOVER MAP AND SITE MAP BY: mapsnt

JUSTICE H.W OLNEYABORIGINAL LAND COMMISSIONERGPO Box 2289DARWIN NT 0801Telephone: (08) 8981 179930 July 2002 Facsimile: (08)89813465The Hon Philip Ruddock MPMinister for Immigration and Multiculturaland Indigenous AffairsParliament HouseCANBERRA ACT 2600Dear MinisterRe:Garrwa (Wearyan and Robinson River Beds and Banks) Land Claim(Claim o 178)In accordance with section 50(1) of the Aboriginal Land Rights (Northern Territory)Act 1976 I present my report and recommendations in relation to this claim.You will note that I have found that there are traditional Aboriginal owners of theclaimed land and I have recommended that the land be granted to a Land Trust inaccordance with sections 11 and 12 of the Act.As required by the Act, I have also forwarded a copy of the report to theAdministrator of the Northern Territory.Yours faithfullyH W OLNEYAboriginal Land Commissioner

AJUSTICE H W OLNEYABORIGINAL LAND COMMISSIONERGPO Box 2289DARWIN NT 0801Telephone: (08) 8981 179930 July 2002 Facsimile: (08)89813465His Honour Mr John AnictomatisAdministrator of the Northern TerritoryOffice of the AdministratorThe EsplanadeDARWIN NT 0800Your HonourRe:Garrwa (Wearyan and Robinson River Beds and Banks) Land Claim(Claim No 178)In accordance with section 50(1) of the Aboriginal Land Rights (Northern Territory)Act 1976 I present my report and recommendations in relation to this claim.You will note that I have found that there are traditional Aboriginal owners of theclaimed land and I have recommended that the land be granted to a Land Trust inaccordance with sections 11 and 12 of the Act.As required by the Act, I have also forwarded a copy of the report to The Hon PhilipRuddock MP, Minister for Immigration and Multicultural and Indigenous Affairs.Yours faithfullyH W OLNEYAboriginal Land Commissioner

CONTENTSPageIntroduction ...............................................................................................................1Garrwa or Garawa .....................................................................................................2Garawa/Mugularrangu (Robinson River) Land Claim ................................................2The claimed land .......................................................................................................4The inquiry ................................................................................................................6The claim documents .................................................................................................7The Northern Territory's concession ..........................................................................8Historical background ................................................................................................8Social organisation and land tenure ...........................................................................9The claimant groups and their countries ...................................................................11Traditional Aboriginal owners ..................................................................................15Strength of traditional attachment ............................................................................15Subsection 50(4) .......................................................................................................16Recommendations .....................................................................................................17The function to comment ..........................................................................................17The Northern Territory's opening statement ..............................................................18Number of Aboriginals advantaged ...........................................................................20Nature and extent of advantage .................................................................................20Detriment: Other Aboriginal Groups .................................................................... 21Adjoining land holders ....................................................................... 21Recreational fishing ............................................................................ 25NT government interests ..................................................................... 26The NLC's response ............................................................................ 29Effects on patterns of land usage .............................................................................. 31Cost of acquiring other interests .............................................................................. 31Summary of findings, recommendations and comments ........................................... 31Appendix 1: 1. Representation of parties ................................................................. 332. Hearings .............................................................................................................. 333. Witnesses ............................................................................................................ 334. Exhibits tendered ................................................................................................. 33Appendix 2: Historical background ......................................................................... 35Appendix 3: Traditional Aboriginal owners ............................................................ 47Map of claim area and surroundings ................................................Following page 48(v)

2An application pursuant to s 50(1)(a) may relate only to unalienated Crownland or to alienated Crown land in which all estates and interests not held by theCrown are held by or on behalf of Aboriginals.4. In the event that a Commissioner recommends to the Minister in a report made tohim under s 50(1)(a) that an area of Crown land be granted to a Land Trust for thebenefit of Aboriginals entitled by Aboriginal tradition to the use or occupation ofthat area of land, whether or not the traditional entitlement is qualified as to place,time, circumstance, purpose or permission, the Minister may recommend to theGovernor-General that a grant of an estate in fee simple in the land be made toa Land Trust (s 11 (1)) and the Governor-General may execute a deed of grant ofan estate in the land in accordance with the recommendation and deliver it to thegrantee (s 12(1)).Garrwa or Garawa5. At the outset it is desirable to make reference to the spelling of the word Garrwawhich is an Aboriginal language and the name used to identify the people whocomprise that language group. As with many Aboriginal words, the spelling inEnglish has varied over the years. At the time that the traditional land claim thatpreceded the granting of land to the Garawa Aboriginal Land Trust was made,the language in question was identified as Garawa, hence the spelling adoptedin the name of the Land Trust. The current spelling of the same word is Garrwawhich is said by linguists to more accurately reflect the way it is pronounced byAboriginal people. In this report the current spelling is adopted except to theextent that reference is made to the name of the Land Trust and to the previoustraditional land claim.Garawa/Mugularrangu (Robinson River) Land Claim6. On 15 October 1982 the NLC lodged an application under s 50(1)(a) of the LandRights Act in which a claim was made to land described as "Northern TerritoryPastoral Lease No. 598 known as Robinson River Station". The applicationwas then referred to as the Robinson River Land Claim and assigned the claimnumber 65. At the time, the claimed land was held under the above-mentionedpastoral lease by the Garawa Association Incorporated in which all interests wereheld by Aboriginal people. The land was accordingly available to be claimedunder the Land Rights Act.7. In November 1983 the Robinson River Land Claim was amended by adding thefollowing additional areas:Area 2: All the beds and banks of, and islands in, the Wearyan andRobinson Rivers shown hatched on the plan attached to this application.Area 3: All that parcel of land near Seven Emu in the NorthernTerritory of Australia known as Proposed Aboriginal Reserve containingan area of 4038 hectares more or less and bounded by lines described asfollows:

412. On 17 December 1992 the Governor-General executed a Deed of Grant pursuantto s 12 of the Land Rights Act in favour of the Garawa Aboriginal Land Trust.The land granted is identified as being Northern Territory Portion 3975 and beingmore particularly shown on Survey Plan S91/151Ato H. Survey Plan S91/151Aindicates that the river boundaries of NTP 3975 extend to the "Middle Thread ofRiver".13. Having provided some background to the establishment of the Garawa AboriginalLand Trust and the grant of the land held by it, it is now convenient to describethe land presently under claim.The claimed land14. On 29 May 1997 the N-LC lodged a number of new traditional land claimapplications including applications entitled Wearyan River Bed and Banks LandClaim (Claim No. 178) and Manangoora Region Land Claim (Claim No. 185).The land claimed in the Wearyan River Bed and Banks application is describedas:All that land in the Northern Territory of Australia being the beds andbanks of the Wearyan River, commencing at the northern-most point of theeastern boundary of Northern Territory Portion 814, otherwise known asSpring Creek Pastoral Lease, and extending in a south-westerly directionso far as the said river is immediately adjacent to the boundary of NorthernTerritory Portion 814.Several areas of land are claimed in the Manangoora Region application includingan area described as:All that land in the Northern Territory of Australia being the beds andbanks of the Robinson River from the mouth of the said river for so far asit is adjacent to the western boundary of Northern Territory Portion 135 1,otherwise known as Seven Emu Pastoral Lease, excluding the portionof the said river which runs within Northern Territory Portion 3975,otherwise known as Garawa Aboriginal Land.15. On 8 March 2002 the NLC sought my approval (which was duly granted) toamend the Wearyan River Bed and Banks application by adding a claim to afurther area of land described as:All that land in the Northern Territory of Australia being the beds andbanks of the Robinson River for so far as it is adjacent to the easternboundary of Northern Territory Portion 3975, otherwise known as theGarawa Aboriginal Land Trust, but excluding any part of that land that isalready Aboriginal land.This area is part of the portion of the Robinson River bed and banks claimed inthe Manangoora Region application. At the same time the Manangoora Regionapplication was amended by excising from the claimed land the area which wasadded to the Wearyan River application. As no additional land was being claimedthe provisions of s 50(2A) (the sunset clause) had no relevance. In order to moreaccurately reflect the substance of application No. 178 as amended, the title of the

5claim was amended to Garrwa (Wearyan and Robinson Rivers Beds and Banks)Land Claim,16. The sections of the Wearyan and Robinson Rivers the subject of this inquiry areadjacent to the boundary of NTP 3975 (Garawa Aboriginal Land Trust) which atthe relevant places extends to the middle thread of each of the rivers. It followstherefore in each case the claim extends from the middle thread of the respectiverivers to the opposite bank.17. The whole of the land claimed in the amended application No. 178 is land whichin the Garawa/Mugularrangu (Robinson River) Land Claim report I held to bealienated Crown land by reason of the interest in the land of the adjoining pastoralleaseholders conferred by the Control of Waters Act (NT). For this reason 1was of the opinion that the land in question was not available for claim andaccordingly no recommendation was made that it be granted to a Land Trust.18. The Control of Waters Act was repealed in 1992 and replaced by the WaterAct. The new legislation differs in many respects from the previous law andin particular for present purposes, does not contain the provisions upon which1 relied for the view expressed in the previous report. After receiving andconsidering submissions made by the NLC and the Solicitor for the NorthernTerritory I advised those parties by letter dated 29 August 2001 that I was of theview that:a) the beds and banks of the Wearyan and Robinson Rivers whichare immediately adjacent to the relevant boundaries of NTPortion 3975 are in each case unalienated Crown land; andb) neither area is "common land" for the purposes of s 50(2B) of theLand Rights Act.The basis for my opinion that neither area is "common land" for the purposes ofs 50(2B) was that as it was previously properly regarded as alienated Crown landit could not have been the subject of an application pursuant to s 50(1)(a) of theLand Rights Act.19. The application has proceeded on the basis that the areas of land claimed are:a) All that land being the bed and left bank of the Wearyan River lyingbetween the boundaries of Northern Territory Portion 3975 andNorthern Territory Portion 814 (Spring Creek Station); andb) All that land being the bed and right bank of the Robinson Riverlying between Northern Territory Portion 3975 and NorthernTerritory Portion 1351 (Seven Emu Station).The claim in relation to the Robinson River relates to two separate sections of theriver. Prior to the grant of title to the Garawa Aboriginal Land Trust the northernpart of the eastern boundary of what was then the Robinson River pastoral leasewas an uninterrupted stretch of the bank of the Robinson River. On the easternside of part of the river boundary was the area known as the Proposed AboriginalReserve (Area 3 in the Garawa/Mugularrangu land claim). This had once beenpart of the Seven Emu pastoral lease. Upon the grant of title to the GarawaAboriginal Land Trust the section of the river between the former Robinson Riverpastoral lease and the former Proposed Aboriginal Reserve was vested in the

6Land Trust. There therefore remain two sections of the river which separate theland vested in the Land Trust and the Seven Emu pastoral lease.20. The evidence before the inquiry indicates that the portion of the Robinson Riverdown stream from a place known as Cox's Crossing is subject to tidal influence.The approximate location of Cox's Crossing is marked with a cross on exhibitNTG 6 (Topographical map - (Robinson)). The evidence also indicates thatupstream from Cox's Crossing the Robinson River is not subject to tidal influenceand further that no part of the claimed section of the Wearyan River is subject totidal influence.21. In the Northern Territory's final submission (exhibit NTG 8, para 9) it is assertedthat at common law, where tidal rivers form the outer boundary to a grant of land,the presumption is that in the absence of any contrary provision in the instrumentof grant or modification of boundaries under the relevant legislation, the boundaryof the grant is the mean high water mark, and that there being no indication to thecontrary in PL 773 the western boundary of Seven Emu Station where boundedby the tidal part of the Robinson River is the mean high water mark. Thisproposition is consistent with the approach adopted in previous reports and is notcontested. Be that as it may, whether the boundary of Seven Emu Station extendsto the mean high water mark or to the top of the bank of the river or simply tothe bank, the fact remains that the land claimed extends from the boundary ofNTP 3975 (the middle thread of the river) to the adjacent boundary of PL 773(NTP 1351).22. The claimants assert that the whole of the claimed land is unalienated Crownland. No contrary submission has been made. There is no evidence that any partof the claimed land has been alienated from the Crown. I find that the whole ofthe claimed land is unalienated Crown land and is available to be the subject of atraditional land claim pursuant to s 50(1)(a) of the Land Rights Act.23. The map annexed to this report provides a graphic illustration of the areas thatconstitute the claimed land and other geographical features. The map does notpurport to identify the actual location of the middle thread of either river.The inquiry24. Notice of my intention to commence an inquiry was advertised in the followingnewspapers on the dates indicated:Northern Territory News 6 April 2002Tennant & District Times 5 April 2002Centralian Advocate 5 April 2002Katherine Times 10 April 2002Notice was also given to the proprietors of all adjoining land as well as to otherindividuals, organisations and officials thought likely to have an interest in theclaimed land or the outcome of the inquiry. Persons and organisations whodesired to be heard by the Commissioner were invited to give written notice oftheir interest and a brief outline of the points they sought to raise. Notice ofintention to be heard was received from:

7a) The Attorney-General for and on behalf of the Northern Territory;b) Mr Frank Shadforth (Seven Emu Station);c) Mr Jim Mawson (Spring Creek Station);d) Mr David Keighran (Greenbank Station); ande) Withnall Maley & Co. (Solicitors for the Amateur Fishermen'sAssociation of the Northern Territory).25. The inquiry commenced on 23 April 2002 at the Robinson River communitysituated on the Garawa Aboriginal Land Trust land. The claimants wererepresented by Mr David Parsons SC and Ms Penny Creswell; the NorthernTerritory was represented by the Solicitor-General (Mr Tom Pauling QC) andMs Poppi Gatis. Messrs Frank Shadforth, Jim Mawson and David Keighran werealso in attendance and each gave evidence to the inquiry. No representative of theAmateur Fishermen's Association attended. For reasons which will appear below,the hearing on 23 April 2002 was relatively short. The inquiry was adjournedfor further mention in Darwin on 20 May 2002. On the latter occasion directionswere given for the exchanging of written submissions.26. Particulars of the parties taking part in the inquiry and their representatives, thedates and places where the inquiry was conducted, the names of witnesses whogave evidence and the exhibits tendered are set out in Appendix 1.The claim documents27. In accordance with the Aboriginal Land Commissioner's standard practicedirections, prior to the commencement of the inquiry, the NLC provided a numberof documents setting out the basis of the traditional land claim which were latertendered as evidence at the inquiry. They include:a) Anthropologist's report (exhibit NLC I): This document wasprepared by Mr Jeff Stead, the Manager of the AnthropologyBranch of the Northern Land Council. It is commonly referred toas the claim book.b) Genealogies of the claimant groups (exhibits NLC 5.1-5.4): Thegenealogies trace the line of descent of the claimants from theirancestors and show the relationships of the claimants amongstthemselves. There are 4 separate claimant groups.c) Claimant profiles (exhibit NLC 4): This document identifies eachclaimant according to his or her Aboriginal name (if known), dateand place of birth (if known), place of residence and the basis of theclaimant's claim to be a traditional Aboriginal ownerd) Site map (exhibit NLC 2): The map indicates the location ofsignificant sites on or near the claimed land and identifies theDreaming with which each site is associated.e) Site register (exhibit N-LC 3): The register complements the sitemap by providing in relation to each site its Aboriginal name,its non-Aboriginal name and geographical features, its locationby reference to relevant co-ordinates and a note as to the site'ssignificance and semi-moiety classification.

828. At the commencement of the hearing on 23 April 2002 Mr Parsons SCrepresenting the claimants indicated that the NLC had been asked by a number ofpersons named in the claim documents as claimants to have their names removed.Those concerned are Dulcie Mawson, Wendy Mawson, Judith Mawson, JohnMawson and Susie Mawson. Mr Parsons also indicated that a request had beenmade by Ms Katey Baker (who is not named as a claimant) that her mother'sname, Angeline Bardabina, also be removed. Each of the persons in question isnamed in the claimant profile document as a member of group 2 and is shown onthe group 2 genealogy. In these circumstances the persons who have sought tohave their names removed will not be regarded as claimants. For the record it isnoted that both Dulcie Mawson and Angeline Bardabina are named as traditionalowners of group 2 country in the Garawa/Mugularrangu report (paragraph 6.3.6)as is the late father of the other members of the Mawson family who requestedthe removal of their names.The Northern Territory's concession29. Prior to the commencement of the inquiry, following the delivery of the claimdocuments, the Solicitor for the Northern Territory advised the Office of theAboriginal Land Commissioner by letter dated 20 December 2001 that:.... the Territory is prepared to concede traditional ownership to thosesections of the bed and banks of the Wearyan and Robinson Rivers whichadjoin the Garawa Aboriginal Land Trust.The letter of 20 December 2001 was tendered and marked as exhibit N-LC 7.30. The concession made by the Northern Territory is entirely appropriate. Each ofthe present claimant groups is readily identifiable as a local descent group foundin the Garawa/Mugularrangu report to be traditional Aboriginal owners of part ofthe claimed land presently under consideration. Despite the findings of traditionalownership in the previous report no recommendation for a grant of the presentlyclaimed land was made for the sole reason that at that time the land beyond themiddle of the respective rivers was considered to be not available to be claimed.Historical background31. Although the Garawa/Mugularrangu report includes background information andfindings which are highly relevant to the current inquiry it is nevertheless helpfulto have an understanding of the historical context in which the claim is made.Chapter 2 of the claim book (exhibit N-LC 1) contains a comprehensive accountof the involvement of the indigenous people in the general area of the claim.Rather than attempt to summarise that material the whole chapter is reproduced inAppendix 2. The references at the end of the appendix have been extracted fromthe bibliography at the conclusion of the claim book.

Social organisation and land tenure932. Apart from the contents of the claim book no specific evidence was tenderedconcerning the social organisation and land tenure system of the claimantgroups. These questions were of course explored in some detail in the Garawa/Mugularrangu claim hearing and as the claimant groups were all involved in thatclaim the evidence then given and the findings may apply to them in the contextof the present claim. It is however appropriate to refer briefly to the generalthrust of the undisputed material relating to these issues as set out in the claimbook.33. The claimants believe that the countryside and all on it result from the activitiesof ancestral beings known to Europeans as Dreamings, and the era of creation, asthe Dreamtime. Semi-moieties divide non-European phenomena into four namedcategories: Wuyaliya, Wudaliya, Mambaliya and Rhumburriya. All flora, fauna,Dreamings, natural phenomena, people, sites and land belong to one of thesecategories. An individual belongs to the same semi-moiety as his or her father.Semi-moieties are grouped into two unnamed moieties. Individuals belong to thesame moiety as their fathers and their marriage partner comes from the oppositemoiety.34. The claimants believe that it is the historic ancestors (Dreamings) who gave themrights and responsibilities towards a particular area of land. This area of land issometimes described as an "estate". Often Aboriginal people will use the term'country' or 'my country' to describe this focus in land. It is the tracks of theancestral beings, the sites that constitute them and other named places that formthe structural basis of the estate. Each estate or country is usually distinguishedfrom others by a number of means usually including handover points on tracks orsites where Dreamings have turned back. In 'boundary' areas ownership is notalways clear cut. Such areas are often described as "mixed up".35. Each estate is associated with a set of people who are recruited through theirfather and father's father. The term patriclan is used to describe this group.Patriclan members perceive themselves as the patrilineal descendants of theancestral Dreaming beings that shaped their country and left behind its main sites.The ideal situation is for estates, their ancestral beings and patriclan members tohave the same semi-moiety affiliation. Because marriages do not always followthe appropriate marriage rules, this is not always the case. Patriclan members,who are also known as Ngimaringgi, perceive themselves as directly descendedfrom the ancestral beings associated with their estate and thus spiritually linkedto the estate, its ancestral beings, ritual, designs and song cycles. Other interestsin an estate can be obtained through the other lines of descent recognised by theclaimants, eg. mother's father, father's mother and mother's mother.36. The close relationship an individual has with the country of his or her father andfather's father involves a number of unique spiritual responsibilities and duties,notably:An individual's obligation to acknowledge their intimateidentification with their country's totemic features and publiclyembracing these as a key aspect of their personal identity;

10• Having a major right to speak about their estate, its spiritualfeatures and the state of spiritual affairs which should prevailthroughout their country;• Passing on knowledge to less knowledgable patriclan members; and• Having the primary rights and duties as the wearers of totemicdesigns of their country, as the main actors in the rituals of theircountry and as singers of the song cycles associated with theircountry.37. The term Junggayi is used to identify the relationship of an individual with hisor her mother's father's country. The rights and responsibilities of the Junggayitowards the ancestral beings of their mothers' patriclan are:• Mediators of the intimate spiritual relationship between people andtheir patriclan countries;• To restrict entry to (and knowledge about) dangerous sites andareas;• Accompanying and guiding Ngimaringgi and others at importantsacred sites;• Safekeeping sites where hollow log coffins are stored; and• Supervision of major cult ceremonies including:• Preparation of ceremony sites and ritual items;• Painting the bodies of Ngimaringgi with their patriclan ritualdesigns;• Organising the involvement of novices;• Assisting the involvement of novices;• Generally ensuring that the requirements of the ancestralbeings with regard ceremony are fulfilled.38. In the Garawa/Mugularrangu claim those individuals who relate to countrythrough their mother and mother's father (Junggayi) were not advanced astraditional owners. The view then was that Junggayi are best regarded asmediators of the intimate spiritual relationship between people and their patriclancountries rather than towards sites and country. A somewhat different approachhas been adopted in other recent claims in the region particularly in the claim byMarra and Alawa people in the Lorella Region Land Claim (Claim No. 199) andin the claim made by Yanyuwa and Garrwa people in the McArthur River RegionLand Claim (Claim No. 184). Notwithstanding current views expressed in otherclaims the author of the claim book asserts that the majority opinion amongstthe present claimants is that only the patriclan members should be advanced asclaimants, and that is how the claim has been presented.39. There are means by which people come to hold primary spiritual responsibilityfor country other than by patrilineal descent. These are relevant in this claim asgroup 1's claim to traditional ownership is based on succession. The underlyingprinciples of succession are that:• a succeeding local descent group must own an estate of the samesemi-moiety;• the respective estates are geographically close although politicalprominence can influence this.Group 1's succession to land under claim is based on these two principles.

11The claimant groups and their countries40. The concession made by the Northern Territory concerning the traditionalAboriginal ownership of the claimant groups and the acceptance of the claimbook as evidence of the basis of the claims made by each group render itunnecessary to examine in any detail the particular claims of each group. Thisis especially so in view of the detailed analysis of those claims made in theGarawa/Mugularrangu report. In each case, except for some minor changes in thegenealogies, the material and data presented in the Garawa/Muggularrangu claimremain relevant. The following summaries of the relevant details relating to eachgroup have been extracted from the claim book.41. Group 1:Identification in Garawa/Mugularrangu Local descent group 9[Estate NLand Claim: (paragraph 6.10.4)Semi-moiety affiliation:MambaliyaGeographic focus on claim area: Beds & banks of the Wearyan Riverin northern part of Wearyan section ofthe claim.Main Dreaming affiliation:Travelling Rainbow Snake.The portion of the claimed land for which group 1 claims responsibility is thebed and banks of the Wearyan River from where the Land Trust area boundsManangoora pastoral lease to just south of the site Binjanyina (site 3 1). It is partof a larger country that stretches north along the Wearyan River to approximatelywhere the Burketown road crosses it. To the west it stretches into Spring Creekpastoral lease. The claim to this area is based on succession. The currentNgimaringgi are all direct descendants of Old Davey Yubuwana.42. Group 2:Identification in Garawa/Mugularrangu Local descent group 2/Estate DLand Claim: (paragraph 6.3.6)Semi-moiety affiliation:WuyaliyaGeographic focus on claim area: Beds and banks of the Wearyan Riverin the southern portion of Wearyansection of the claim.Main Dreaming affiliation:Barribarri (star, min min type light).The country of group 2 adjoins that of group 1 and is focused on the upperreaches of the Wearyan River and its tributaries; much of it lies to the west of theWearyan on the Spring Creek pastoral lease. The north-western corner of theGarawa Aboriginal Land Trust land, and land to the east of the Wearyan is alsoassociated with group 2. The members of the local descent group are mostlypatrilineal descendants of Old Sweet (Magurayara).

1243. Group 3:Identification in Garawa/Mugularrangu Local descent group 12/Estate VLand Claim: (paragraph 6.13.5)Semi-moiety affiliation:RhumburriyaGeographic focus on claim area: Robinson River in the far north-eastcorner of the Garawa Aboriginal LandTrust.Main Dreaming affiliations:Mardumbarra (alligator);Wugudu (stone); Nganyanuya(floodwater).Group 3's country is focused on the Robinson River and includes the northernsection of the river presently under claim. A number of group 3 sites are locatedon or adjacent to the claimed land. Members of this group are descended fromfive ancestors remembered as close siblings. These are Tobacco Jack Bigayamaji,Paul Gayibalaia, Maudie, Jack-Boy Walbungga and Topsy Landurimara. Thesefive had other siblings who either did not have children or whose children'snames are not remembered. Most of the current adult Ngimaringgi are thedescendants of Jack-Boy Walbungga.44. Group 4:Identification in Garawa/Mugularrangu Local descent group 8/Estate KLand Claim: (paragraph 6.9. 10)Semi-moiety affiliation:MambaliyaGeographic focus on claim area: Robinson River and Goodfella Creek,adjoining and south of group 3country.Main Dreaming affiliations:Walalu (travelling rainbow snake).This group's country includes the southern section of the Robinson Riverpresently under claim. There are a number of group 4 sites on or adjacent to theclaimed land. The claimants associated with this country are all descended fromthree brothers - Bluey Bob, Brownie Bob and Masleson Jack who had the samefather Banjiramaji (also known as Bob or Yellow Jack). They had a number ofother brothers and sisters, none of whom appears to have had children.45. In view of the previous findings and the acceptance by the Northern Territory ofthe genealogical evidence as set out in the genealogies and claimant profiles, nooral evidence was given in relation to the composition of the claimant groups.Accordingly, I accept the documentary evidence tendered as sufficient proof thateach claimant group is a local descent group for the purpose of the Land RightsAct. The actual persons who comprise each local descent group are not nowidentical to those previously found. A number of the senior traditional ownershave died since the previous report was submitted in 1990, and in some cases a

13new generation has emerged. Some individuals who would otherwise be part ofgroup 2 have requested that they not be treated as claimants in this claim.46. On the material presently available to me I find that the members of the claimantlocal descent groups are:Group 1:Mitchell JoeHorace JoeWilliam DaveyAndrew DaveyVeronica DaveyDavid DaveyMorris DaveyJohnny DaveyJoy DaveyKimella DaveyGroup 2: (not including individuals who decline to be considered asclaimants)Mawlin (grandson of Durrayjba)Lesley Hogan (Mawson)Henry HoganLouie HoganBilly HoganCorey HoganRobert HoganRobert Hogan Jr.Nelson HoganHenrick HoganTina HoganDanzel HoganDennis HoganRhonda HoganTopsy GreenNoreen EchoGroup 3:Eileen ShadforthClara ThompsonCathy RobertsNobleJaqueline JacksonJimmy JacksonLindy JacksonFreddy JacksonNicholle JacksonAaron JacksonChantelle JacksonLarry Hoosen

14Bruce HoosenKyle HoosenMarion HoosenTrusky HoosenClarissa HoosenClay HoosenMcQuillan HoosenWhitany HoosenYvonne HoosenCamilla JacksonKathleen (Helen) JacksonMary (child of the late Jack Boy)May RedbankBasil Gan.galaLyle Gan.galaMolly GeorgeJimmy JackReynold JackClifton JackWilson JackBobby (child of the late Jack Boy)May (child of the late Jack Boy)Group 4:Florine (child of the late Browny Bob)Judy WaldonJosephine Bob (Nelson)Willy Bob (Nelson)Donald BobClennon BobKeanu BobLea BobWinnie BobLoretta AndersonBilly AndersonJohn Wayne AndersonKathleen GeorgeTolby BobLenin BobAaron BobLesley BobMichael BobDorris Hume

15Traditional Aboriginal owners47. Each of the claimant groups contains a number of individuals who are namedin the Garawa/Mugularrangu report as traditional Aboriginal owners of relevantparts of the land immediately adjacent to the land presently under claim. In theprevious report findings are made in respect of each group as then constitutedwhich satisfied each of the elements of the definition of traditional Aboriginalowners in the Land Rights Act. I found then that each local descent group wascomprised of Aboriginals who had common spiritual affiliations to a site or siteson the land, being affiliations which placed the group under a primary spiritualresponsibility for that site (or sites) and for the land; I also found that each groupwas entitled by Aboriginal tradition to forage as of right over that land.48. The composition of each local descent group has of course changed slightly withthe passage of time but there is no suggestion that there has been any change inthe spiritual responsibilities of the groups as presently constituted in respect ofthe sites on their respective countries or to their countries generally. Althoughno new evidence has been given in relation to these issues, nor indeed in relationto the right to forage, it is appropriate, particularly in the light of the concessionsmade by the Northern Territory, to accept the claim book as providing a sufficientevidentiary basis to make the relevant findings.49. On the material available to the inquiry I find that the local descent groups whichare identified above satisfy all of the elements of the statutory definition oftraditional Aboriginal owners in respect of the relevant parts of the claimed land.It follows that traditional Aboriginal ownership of the whole of the claimed landhas been established. The names of the individual Aboriginals who are traditionalowners of the claimed land are set out in Appendix 3.Strength of traditional attachment50. It is a requirement of the Land Rights Act that in making a report in connectionwith a traditional land claim the Commissioner shall have regard to the strengthor otherwise of the traditional attachment of the claimants to the claimed land(s 50(3)). This requirement has been discussed in detail in many previous reports.In the Garawa/Mugularrangu report I wrote (at paragraph 7.8)The long history of endeavour by the claimant groups and their forebearsto obtain security of tenure in this region is evidence enough of theirstrong traditional attachment to the land and there can be no reason todoubt the genuineness of their desire to use the land for a variety oftraditional uses as well as a place for many of them to live.There is no reason to doubt that the present claimants continue to have strongtraditional attachments to the claimed land. Indeed, evidence has been tenderedto the inquiry in the form of written statements of Morris Davey (aka JohnMorris), Les Hogan, Larry Hoosen and Donald Bob (exhibits NLC 8, 9, 10 and 11respectively) attesting to the numerical growth of the Robinson River communitysince the grant of title to the Garrwa Aboriginal Land Trust and the continuedceremonial life and other traditional activities of beneficiaries of the grant.

16Subsection 50(4)51. Subsection 50(4) of the Land Rights Act provides:50(4) In carrying out his functions a Commissioner shall have regard tothe following principles:(a)Aboriginals who by choice are living at a place on thetraditional country of the tribe or linguistic group to whichthey belong but do not have a right or entitlement to liveat that place ought, where practicable, to be able to acquiresecure occupancy of that place;(b) Aboriginals who are not living at a place on the traditionalcountry of the tribe or linguistic group to which they belongbut desire to live at such a place ought, where practicable, tobe able to acquire secure occupancy of such a place.There is presently some debate as to the role of this subsection in the land claimprocess. The Northern Territory government has taken the view in a numberof recent inquiries that if land is not capable of being a place where traditionalowners reside or wish to reside then the Commissioner should not recommendthat the land be granted. This is not a view that I share. The matter is presentlythe subject of applications for judicial review in the Federal Court.52. In the present case the Northern Territory does not press the argument apparentlyfor the reason that the claimed land is immediately adjacent to Aboriginalland upon which many of the claimants currently reside. There is however nosuggestion that any of the claimants either presently reside on, or wish to resideon, any part of the claimed land nor indeed is it suggested that the land is suitableas a place of residence. For my own part I adhere to what I wrote in the Garawa/Mugularrangu report (at paragraphs 7.6-7.7):7.6 1 have on another occasion commented on the difficulty in givingsensible effect to this provision. It is not easy to determine towhich function or functions of the Commissioner it is directed.For one thing it does not refer to the claimants or to the traditionalAboriginal owners, but rather to Aboriginals of a particular tribeor linguistic group. Second, it abandons the criteria established bythe definition of traditional Aboriginal owners in favour of a desireto have secure occupancy of land for the purpose of living on it. 1do not think that in determining whether a group of Aboriginals hascommon spiritual affiliations to a site on land, the Commissionershould have regard to the desire of members of the same linguisticgroup to live on the land. It seems to me that s. 50(4) ought morelogically have been directed to the Minister as a directive to governthe exercise of his discretionary functions under s. 11.7.7 Despite the difficulties that s.50(4) creates, it cannot be ignoredand accordingly some regard must be had to its provisions by theCommissioner. For my part it seems that it would be proper tohave regard to the desire for secure occupancy of traditional landin assessing the strength or otherwise of the traditional attachmentof claimants. But it would be completely contrary to the legislative

Recommendations53. Having regard to:17intent if the subsection were to operate in a way that the absence ofa desire to live on land should result in an unfavourable finding orrecommendation. Not all traditional land is suitable for residentialpurposes and indeed living on land is only one of several usesto which Aboriginal people put land. Some land may be usedexclusively for ceremonial purposes whilst other land may beprimarily used for food gathering. The desire for secure occupancyof land is of course foremost in the minds of Aboriginal claimantsin making a claim under the Act, but the validity of that desire is inno way diminished simply because it may not be accompanied by adesire to live on the land.a) my finding that the Aboriginals named in Appendix 3 are traditionalAboriginal owners of the claimed land;b) the traditional attachment of the claimants to the claimed land,which I find to be strong; andc) the principles expressed in s 50(4) of the Land Rights Act;1 recommend to the Minister that the following land namely:i) the bed and the left bank of the Wearyan River lying betweenthe boundaries of Northern Territory Portion 3975 and NorthernTerritory Portion 8 14 (Spring Creek Station); andii) the bed and right bank of the Robinson River lying between theboundaries of Northern Territory Portion 3975 and NorthernTerritory Portion 1351 (Seven Emu Station);be granted to a Land Trust in accordance with sections 11 and 12 of the LandRights Act for the benefit of Aboriginals entitled by Aboriginal tradition to the useor occupation of that land, whether or not the traditional entitlement is qualifiedas to place, time, circumstance, purpose or permission.54. 1 further recommend that the Minister take such steps as may be necessary tofacilitate the vesting of the claimed land in the Garawa Aboriginal Land Trust.The function to comment55. Section 50(3) of the Land Rights Act requires that in making a report inconnection with a traditional land claim the Commissioner shall comment oneach of the following matters, namely:(a) the number of Aboriginals with traditional attachments to the landclaimed who would be advantaged, and the nature and extent of theadvantage that would accrue to those Aboriginals, if the claim wereacceded to either in whole or in part;

18(b)(c)(d)the detriment to persons or communities including other Aboriginalgroups that might result if the claim were acceded to either inwhole or in part;the effect which acceding to the claim either in whole or in partwould have on the existing or proposed patterns of land usage inthe region; andwhere the claim relates to alienated Crown land - the cost ofacquiring the interests of persons (other than the Crown) in the landconcerned.The following paragraphs deal with the matters upon which comment is required.The Northern Territory's opening statement56. Before proceeding to deal with the various issues upon which comment isrequired it is appropriate to refer to, and quote, a statement made by the SolicitorGeneral on behalf of the Northern Territory at the hearing on 23 April 2002. Thisstatement was made in the context of a claim in which the Northern Territory hadconceded that the claimants are the traditional Aboriginal owners of the claimedland; and it was made in the presence of a significant number of the individualclaimants. At pp 10- 12 of the transcript the Solicitor-General is recorded assaying:MR PAULING: Thank you, Your Honour. As both Mr Parsons and I havepointed out, there's no argument here about traditional owners. We've hadsome other cases to do with fishing in rivers, particularly the McArthurRiver, and in relation to Manangoora Station, and we come along and sayto the judge, 'Well, if people can't go fishing in the river. if they're notallowed to go fishing in the river, if the beds and banks are Aboriginalland, then that's a problem', and the judge should tell the Federal Minister,'Hey, there's a problem if people can't go fishing in the river'.That doesn't do anybody any good. Last night I spoke to Mr Parsonsand Penny Creswell and other people from the Land Council and we hadinformation from Northern Territory people, and we've just really startedto say, 'Well, what about rivers?' You know. how can we best look afterrivers? How can we say to people who want to fish in the river, 'Well, it'sokay to fish here and here, but because of Aboriginal concerns, Aboriginalpeople don't fish there and you shouldn't either'. How do we deal withthings about people leaving rubbish and waste on the banks? You know,how do we see how best we can manage fishing, not only in the rivers butin the sea'.'So we're going on a very long journey now to talk about how theGovernment and Aboriginal interests can work together. Bill Flahertyhere, he didn't just come down for this, but he came down because there'stalk, at least in relation to the sea and the McArthur River and so on,about a marine rangers' program and how the Northern Territory can be inpartnership with Aboriginal communities.

19So really I'm out here and we're out here today more or less to listen sowe can go away and come up with some ideas that might be good for all ofus, you know. Nobody wants to see so much fishing in rivers that the fishgo away and disappear. That's one of the reasons why the McArthur Riveris now closed to commercial fishing.We all want to see that our children and our children's children, when theygo to the river, will be able to catch fish. We need to known what areasneed looking after. There are some things like grasses, gamba grass, a lotof you people who've been involved with cattle would know, you know,it bums too hot and it threatens native species. There are lots of things weneed to do, working together.And, for too long in the past - I mean, when Mr Parsons and I were veryyoung, young lawyers, we used to fight really ding-dong battles over landrights, but we don't any more. It's time for us to keep saying, 'Well, howare we all going to work together for the benefit and for the best way to dothings for everybody?' So that's why I'm here today.I'm not here to argue anything. I'm just here to listen and talk and to seehow - you know, I'm looking here at a map which has got the four estategroups and the rivers and how they go. I've got to look at a much biggerpicture of the whole Northern Territory or just the whole gulf community,you know, with the rivers associated with the gulf, and see, with Grahamand Bill and other people maybe we can come up with a really good wayto work together.Because I work for the Government I can't sort of do things on myown. We might think we've got a terrific plan, but we might go to theGovernment and the Government might say, 'No, I don't like that. Goaway and do something different'. But we're here and maybe later BillFlaherty might talk to you people about what we're doing, trying to havethis marine ranger program, just as an idea that we're - you know, insteadof just being all talk, this is actually doing proper things, doing the work.So that's what we're here to talk about and to talk with your lawyers. Wehope that they'll go away and talk to you. Some people further down,like the McArthur River, they've said that they're worried becausewhen people come onto their country, as the owners of the land they'reresponsible. And if those people muck up on the land or damagesomething, then the owners are responsible.We've been told that they're very worried about waste; that people catchfish and they only eat the fillet and then leave the rest on the bank - all theguts and everything else - and they don't look after country. Well, they'reworries of yours that we want to know how we can help you. The samegoes for bits of the river where you say, 'Well, you shouldn't be fishingthis bit because it might be involved with that shark story', or that stardreaming, or for whatever reason. We want to know about it, but we wantto do it as partners together so we can look after the country together.

20You know, the old days of the Government and Aboriginal people fighting,that's no good any more. So the Government says to me, and people likeBill Flaherty, you know, and Graham here, because Graham's down hereabout the women's refuge in Borroloola and all sorts of other little jobsand Graham's here about the McArthur River. So we're here really to tellyou that we're wanting to fix things up and make it better. So that's allyou're going to hear from me.57. For the most part the issues addressed in the foregoing statement have relevancein the context of recent claims in which recommendations have been made for thegranting of title to several portions of the intertidal zone in the Gulf region and tothe beds and banks of some major rivers. Although the present claim affects onlytwo relatively small sections of rivers which are some distance inland from thecoast, there is the possibility that as a result of the pending claim to the RobinsonRiver to which reference has been made earlier that the whole of that river fromthe coast to the section now under claim could become Aboriginal land. In thesecircumstances the policy initiatives foreshadowed in the Solicitor-General'sstatement may be relevant in relation to the exercise of the Ministerial functionsthat flow from the recommendations made in this report.Number of Aboriginals advantaged58. There are 79 Aboriginals named in Appendix 3 as traditional Aboriginal ownersof the claimed land. Clearly each would be advantaged to some extent bya grant of title to the claimed land. The advantage would of course extendbeyond the traditional owners to members of their close families and to allother beneficiaries of the grant namely those Aboriginals who are entitled byAboriginal tradition to the use or occupation of the claimed land whether or notthe traditional entitlement is qualified as to place, time, circumstance, purposeor permission. The extent of the group which would be likely to be advantagedwould correspond with the categories of persons identified in paragraph 9.3 of theGarawa/Mugularrangu report. It is not possible to more than guess at the numberof individuals to whom the advantage of a grant would extend. Having regard tothe number of traditional owners, the current population of the Robinson Rivercommunity and the known connections between members of that community andother Aboriginal communities in the region it is reasonable to assume that thetotal number of beneficiaries of a grant would exceed the number of the namedtraditional owners by a factor of 5. This would amount to a total in the vicinity of400.Nature and extent of the advantage59. The primary, and possibly the only, advantage that would accrue as a resultof a grant of title to the claimed land would be to enhance the control of thebeneficiaries of the grant over the activities of non-beneficiaries in relation tothe use of the sections of the two rivers which border the existing Aboriginalland. This is a matter which can conveniently be considered in the context ofthe comments made below in relation to the detriment that may accrue to theadjoining land owners.

21DetrimentOther Aboriginal groups60. Each of the pastoral properties which adjoin the claimed land, namely SpringCreek Station and Seven Emu Station, is held by Aboriginals. Members ofthe Mawson family (Spring Creek Station) have connections with the claimantgroups but have opted not to be named as claimants. The evidence does not dealwith the traditional connections of the Shadforth family (Seven Emu Station). Itis clear from the comments which follow that each of the Mawson and Shadforthfamilies could suffer detriment in the event of a grant of title to the claimedland unless satisfactory and binding arrangements are put in place to guaranteetheir continued access to the sections of the rivers under claim for the purposeof obtaining water for domestic purposes and for stock and for fishing and otherlegitimate purposes in accordance with their current practices.Adjoining land holders61. In response to the invitation to persons likely to be affected by the claim to givenotice of their interest, correspondence was received from three land holders inthe area immediately adjacent to the claimed land, namely;a) Frank Shadforth on behalf of the owners of Seven Emu Station;b) Jim Mawson on behalf of the owners of Spring Creek Station; andc) David Keighran on behalf of the owners of Greenbank Station.Each of the persons mentioned together with other members of their respectivefamilies attended at the hearing on 23 April 2002 and gave evidence.62. The left bank of the section of the Wearyan River which is the subject of theclaim is contiguous with NT Portion 8 14 which is held under PL 687 (SpringCreek Station). Each of the two sections of the Robinson River which are thesubject of the claim is contiguous with NT Portion 1351 which is held underPL 773 (Seven Emu Station). Downstream from the north-eastern corner of theGarawa Aboriginal Land Trust land the Robinson River separates Seven EmuStation (to the south) and Greenbank Station (to the north). In order to betterunderstand the concerns of the adjoining pastoralists reference is first made tothe provisions of the Water Act (NT) in so far as they apply to the rights of landowners whose boundaries are adjacent to waterways.63. The ten-n "waterway" is defined in s 4(1) of the Water Act to include a river,creek, stream or watercourse and a natural channel in which water flows, whetheror not the flow is continuous.64. The sections 9 to 13 (inclusive) of the Water Act deal with the rights of adjoiningland owners in relation to waterways. These sections provide as follows:

229. (1) In this Division, "water" means -(a) the water flowing or contained in a waterway; or(b) ground water.(2) Subject to this Act, the property in and the rights to the use,flow and control of all water in the Territory is vested in theTerritory and those rights are exercisable by the Minister inthe name of and on behalf of the Territory.10. (1) Subject to section 99, a person may take water for domesticpurposes, or for watering travelling stock, from a waterway.(2) Nothing in subsection (1) shall be construed as authorisinga person to enter or remain on land to which the person doesnot otherwise have legal access.11. Subject to section 99, the owner or occupier of land on orimmediately adjacent to which there is a waterway may take waterfrom that waterway for-(a) the use of the owner or occupier or the owner's or occupier'sfamily and employees, for domestic purposes;(b) drinking water for grazing stock on the land; or(c) irrigating a garden, not exceeding 0.5 ha, which is part of theland and used solely in connection with a dwelling.12. (1) Where a waterway forms the boundary of land whichis alienated by the Crown and that boundary is not aboundary surveyed for the purposes of the registration ofthe title to the land under the Real Property Act, the bedand banks of the waterway, to the extent, if any, that theywere not the property of the Crown immediately before thecommencement of this section are, by virtue of this section,acquired by and vested in the Territory.(2) In a grant or lease of land made after the commencementof this section, the bed and banks of a waterway formingthe boundary of the land shall remain the property of theTerritory except to the extent that they are contained withinthe boundaries of the land surveyed for the purposes of theregistration of the title to the land under the Real PropertyAct.13. The owner or occupier of land immediately adjacent to the banksof a waterway. which banks are the property of the Territory,has, subject to the Soil Conservation and Land Utilization Actand section 37(k) of the Crown Lands Act, the right to access forthe owner or occupier or the owner's or occupier's family andemployees, and for the owner's or occupier's stock, to and overthose banks.

23To the extent that is relevant for present purposes s 99 of the Water Act (to whichreference is made in s 10(1) and s 11 (1)) provides:99. A person shall not interrupt or interfere with, or attempt to interruptor interfere with, or cause, suffer or permit a person to interrupt orinterfere with -(a) the taking of water;(b) the discharge or disposal of water or waste; or(c) the drainage of land,in pursuance of a licence granted, a power conferred or anarrangement made under this Act, or the performance of an actauthorised under section 97.65. In a letter dated 8 April 2002 sent to the Commissioner (exhibit ALC 1)Mr Shadforth wrote:1 do not want any claims on my property, pastoral lease no. 773 SevenEmu Station what so ever.1 have no objections what so ever for Aboriginal people to come on toSeven Emu for traditional purposes.Provided they let me know when they will come and for how long as thiscould clash with my business.In his evidence to the inquiry Mr Shadforth confirmed the statements made in hisletter. He also gave further evidence as to his use of the Robinson River. First,he said that he used the river to water his cattle; second, he facilitates some touristactivity in relation to the use of the river by permitting camping on his propertyby fishermen and others who wish to have access to the river. In a good year hesays he may have about 100 such people who pay to use his land; in a bad yearthere may be only 20. These activities relate to the whole of the river boundaryof Seven Emu all the way to the coast. Of the 100 or so visitors in a good year,about 25 would camp in the area close to the claimed sections of the river.66. In the event that the present claim should result in the granting of title to theclaimed sections of the Robinson River, with the result that without the consent ofthe traditional owners (or the NLC) access to the river from the Seven Emu sidewould be prohibited, it is likely that the proprietors of Seven Emu would sufferdetriment in that they would be prevented from exercising their present legal rightof access to the river for the purposes specified in the Water Act. Their capacityto derive further income from charging tourists for the right to camp on thepastoral lease for the purpose of fishing in the river would also be affected. It isnot possible to quantify in dollar terms the extent of the detriment that would besustained, but given that the claimed section of the Robinson River is a relativelysmall part of Seven Emu's extensive river boundary the degree of detriment couldbe regarded as minor.67. Mr Mawson's letter to the Commissioner dated 17 April 2002 (exhibit ALC 2)asserts that the claim would affect the owners of Spring Creek pastoral lease. Itis said that as they do not have any bores, they depend on natural water for theircattle and horses. Mr Mawson and his wife Mrs Kathleen Mawson gave evidence

24at the hearing on 23 April 2002. They each reiterated the concern expressedin Mr Mawson's letter in relation to the need to have continued access to thewater of the Wearyan River for their cattle and horses. Their concern had beenheightened by a suggestion made by a near relative that in the event of title beinggranted, the river might be fenced off. It also emerged from the evidence thatthe Mawsons also pump water from the river to their homestead for domesticpurposes; and further that they have stock yards in close proximity to the claimedsection of the river.68. There is no evidence to confirm the suggestion that a grant of title would resultin the river being fenced off, and indeed, there is every indication to the contrary.However, in relation to the continued use of the river for both domestic and stockuse the position remains that in the event of a grant of title, access to the claimedsection of the Wearyan River would be dependent upon the approval of thetraditional owners (or the NLC) and absent such approval the position of SpringCreek would be detrimentally affected by such a grant. As with Seven Emu, itis not possible to quantify the extent of the detriment but it would appear that itwould be significant.69. David Keighran's letter dated 3 April 2002 (exhibit ALC 3) raised the question ofthe effect that the claim to the bed and banks of the Robinson River would haveon fishing tour operations which he conducts and on plans he is developing forcamping areas and river access.70. David Keighran and his father John Henry Keighran both gave evidence at thehearing on 23 April 2002. Their primary concern was to identify the actuallocation of the claimed sections of the river. It is understandable that theremay have been some degree of confusion and uncertainty about the area beingclaimed. As has been mentioned above, the claimed section of the RobinsonRiver was originally part of a claim to the river which extended to the rivermouth, and which included the extensive river boundary separating Greenbankand Seven Emu pastoral leases. The amended claim to the Robinson River inthe Manangoora Region Land Claim (Claim No. 185) still covers the river downstream from the north-eastern corner of the Garawa Aboriginal Land Trust landbut none of that portion of the river is included in the present claim. Once theposition had been clarified with the witnesses they accepted that the present claimdid not actually touch upon their property.71. One point that emerged from the evidence of David Keighran is thatnotwithstanding the actual surveyed boundary between Greenbank and theGarawa Land Trust land, the parties still recognise a fence line some distance tothe west of the surveyed boundary as what may be called the de facto boundarybetween the two properties. Greenbank continues to run stock on the easternside of the fence line although the land belongs to the Land Trust. By the sametoken, Mr Keighran uses a section of the north bank of the Robinson Riverwhich is on the Greenbank side of this de facto boundary for access to the river.These arrangements appear to have been in place for some considerable period.Nothing has been said that suggests that the present claim would affect the currentunderstanding between the parties involved. The present claim has no bearing

25upon the future relationship between the owners of Greenbank and the LandTrust. No detriment would be suffered by the owners of Greenbank in the eventof a grant of title to the claimed section of the Robinson River.Recreational fishing72. By letter dated 12 April 2002 (exhibit ALC 4) Withnall Maley & Co. as solicitorsacting for the Amateur Fishermen's Association of the Northern Territory(AFANT) wrote to the Commissioner (and to the NLC and the Solicitor for theNorthern Territory) in the following terms:P,E:GARAWA (WEARYAN AND ROBINSON RIVERS BEDSAND BANKS) LAND CLAIM (NO 178) - NOTICE OF PARTYADVERSELY AFFECTEDWe act for the Amateur Fisherman's Association of the Northern Territory.Unfortunately we did not receive a copy of the Notice of Intention toCommence Enquiry in respect of this claim until today.We are however instructed to give notice that our client wishes to establishan interest as the proposed claim will adversely affect the members of ourclient association.In summary the basis of our client's interests is as follows:1 . the areas identified in the claim are areas that are popular withboth local and visiting recreational fishermen, and are promotedin various fishing industry publications as areas featuring pristinefishing and camping areas;2. the making of a grant to the intertidal zone and beds and banks asclaimed will have a severe impact upon all recreational fishermen'sabilities to utilise those areas for purposes of and incidental to therecreational activities conducted in and surrounding the claimedarea;3. the claim will affect the access to areas for recreational fishingregarded by AFANT as a single most challenging problem facingthe industry in the Northern Territory;4. any restrictions on the access to claimed areas is likely to result in arelocation of fishing effort for recreational and sport fishing to otherareas of the Northern Territory coast, thereby increasing fishingpressure on those other areas and bringing about an adverse impacton the sustainable management of those fisheries as a whole in theNorthern Territory;5. the proposed claim and the impact it could have on both the localand visiting fishermen will generally be detrimental and severelyaffect an important part of their lifestyle which they have becomeaccustom to in the Northern Territory;

266. there have been in the past significant difficulties encountered infishing in rivers which are within Aboriginal land.Our client has a real interest in this claim and seeks and opportunity togive further and more comprehensive submissions before the AboriginalLand Commissioner.If you have any further enquiries, please do not hesitate to contact VanessaLee of this office.73. Notwithstanding the breadth of the assertions made in their letter, neither WithnallMaley & Co. nor AFANT appeared at the hearing on 23 April 2002 or at thelater hearing in Darwin on 20 May 2002. Nor has any evidence been tendered tosupport the assertions made. The reference in the paragraph numbered 2 to theintertidal zone suggests that the author of the letter had no real understanding asto the nature of the claim. In these circumstances it is not possible to concludethat a grant of title would result in any detriment to AFANT or any of itsmembers.NT Government interests74. On 3 April 2002 the Solicitor for the Northern Territory, acting on behalf of theAttorney-General gave written notice of intention to be heard (exhibit NTG 1).Subsequently, on 15 April 2002 an outline of detriment issues raised by theNorthern Territory (exhibit NTG 2) was received. The relevant portions of theoutline are as follows:B. DETRIMENT AND LAND USAGEFISHERIES5. The Department of Business, Industry and Resource Development(Fisheries) ("the Department") compiles information relating toexisting fishery interests and practices in the Northern Territoryand regulates activities administered under the Fisheries Act (NT).The use of fish and aquatic life in all waterways in the NorthernTerritory is a regulated activity administered and managed underthe Act.6. The Department advises that recreational fishing occurs within theclaim area.Recreational Fishing7. Recreational fishing is a valuable and important activity/industry inthe Northern Territory.8. The public may currently access the Wearyan and Robinson Riversadjacent to Spring Creek Station and Seven Emu Station withoutpermission from the lessee (see s79 of the Pastoral Land Act (NT)).In addition, fishing tourism is encouraged on Seven Emu Station.

279. Any loss of access resulting from a grant of the areas under claimwill have a negative impact upon recreational anglers, fishing touroperators, local businesses and area residents. Additional fishingpressure will also be placed upon more accessible fish stocks.10. If the effect of a grant is that recreational fishers can not havecontact with the riverbed or banks, the public right to fish will beextremely limited.CONSERVATION11. The Parks and Wildlife Commission of the Northern Territory isconcerned to ensure ongoing sound environmental managementand protection of flora and fauna.12. Several species of flora and fauna found within the sections of theWearyan and Robinson Rivers under claim are considered to be ofparticular conservation significance. These include the tropical/subtropical plant Cycad (Cycas angulata), freshwater and saltwatercrocodiles and the Gouldian Finch.PASTORAL USE13. The Wearyan and Robinson Rivers each form part of the boundariesto adjoining stations which utilise the sections of those rivers underclaim, namely, Spring Creek and Seven Emu Stations.14. Restriction of access to watering points within the claimed portionsof the Wearyan and Robinson Rivers could impact upon theavailability of water for stock or domestic purposes and adverselyaffect the pastoral operations of those properties.TOURISM15. The Northern Territory Tourist Commission ("the Commission")recognises that fishing is a key attraction for visitors to the Gulfsub-region, which includes the area under claim.16. Statistics compiled by the Commission indicate that fishing is anactivity undertaken by visitors to the Territory and is one of thereasons considered by them in selecting the Territory as a holidaydestination.17. Several tourism ventures operate within the claim area. If the effectof a grant is such that restriction of access or total loss of access isto occur, these tourism ventures will suffer detriment.75. Counsel representing the Northern Territory tendered three statements of evidencenamely:a) Statement of William Flaherty dated 11 April 2002 (exhibitNTG 3);

28b) Statement of John Fitzgerald dated 15 April 2002 (exhibit NTG 4);andc) Statement of Steven Robertson dated 11 April 2002 (exhibitNTG 5).76. Mr Flaherty is Deputy Director of Fisheries in the NT Department of Business,Industry and Resource Development. His statement contains a number of generalassertions, particularly, that:• the use of fish and aquatic life in all waterways in the NorthernTerritory is regulated activity administered and managed under theFisheries Act (NT);• Seven Emu Station is featured on the Northern Territory Fishingmap as a property where fishing tourism is encouraged;• the owners of Seven Emu derive significant income from fishingtourism and may be disadvantaged financially if access to the riveris restricted;• section 79 of the Pastoral Act (NT) permits public access to landwithin pastoral leases which is between the high water mark and50 metres inland for up to 2 weeks;• any loss of access to the claimed areas will result in additionalfishing pressure being placed on more accessible fish stocks;• if the claim is successful and the effect of a grant is that recreationalfishers cannot have contact with the river bed or banks, the publicright to fish will be extremely limited.77. The only factual matter contained in Mr Flaherty's statement that is supportedby evidence of any weight is the statement that the owners of Seven Emu deriveincome from fishing tourism. No detailed statistics have been put forward tosupport the general allegation that a grant of title would have any of the othereffects that are referred to.78. Mr Fitzgerald is the General Manager, Industry Development in the NorthernTerritory Tourist Commission. His statement refers to the following matters:• tourism contributes $82.5 million (presumably per annum) into theKatherine region of which the Gulf sub-region forms part;• the NTTC views fishing as the region's key tourism strength and isa key attraction for visitors to the Gulf sub-region which includesthe areas under claim;• of holiday/pleasure visitors to the Katherine region 34% indicatedthat they went fishing while in the NT;cof the 124,000 interstate and international holiday/pleasure visitorsin the Katherine region 15% indicated that fishing was one of themotivating reasons for choosing the NT as a holiday destination;• the NTTC is aware of three tourism businesses (including SevenEmu Station) which operate in the area under claim.79. Apart from the evidence concerning the tourist activity of Seven Emu Station(which has come from another source) Mr Fitzgerald's statement offers nothingby way of evidence to assist in determining any question of detriment. In

29particular there is no evidence to support the assertion that any tourism businessesother than Seven Emu Station operate in the area under claim.80. Mr Robertson is the Senior Pastoral Officer, Darwin, with the NT Department ofInfrastructure Planning and Environment (Natural Resources). In his statementhe says:• The Wearyan River side of the claim area forms part of the northeastern boundary of Spring Creek Station (PL687). The beds andbanks within the area under claim are in the fresh water sectionof the Wearyan River and any restriction of access to the river orriverbank could impact on the availability of water for stock anddomestic purposes. Restriction of access to watering points withinthis section of the river could have an adverse effect on livestockmanagement within the property.• The Robinson River side of the claim area forms part of theboundary between the Garawa Aboriginal Land Trust (RobinsonRiver) and Seven Emu Station. Seven Emu Station has paddockswhich adjoin the Robinson River. Restriction of access to wateringpoints within this section of the river could have an adverse effecton pastoral operations within the property.These comments and conclusions support the evidence of the land owners and thecomments made earlier concerning the potential for detriment in the event that agrant of title is made.81. The Northern Territory did not adduce any evidence to support the allegationsmade in paragraph 12 of its Outline of Detriment Issues (exhibit NTG 2).The NLC's response82. Following the hearing on 23 April 2002 the NLC wrote to the Commissioner(with copies to the Solicitor for the Northern Territory and Withnall Maley &Co.) by letter dated 20 May 2002 responding to several of the issues raised duringthe hearing. The letter has been marked as exhibit ALC 5. The letter contains anumber of significant statements which the NLC has been instructed to make inrelation to the detriment evidence given on behalf of the various parties. First,concerning the claim to the Wearyan River, it is said that :The claimants will not, if granted the area of the Wearyan under claim,interfere with the current use of the Wearyan bed and banks (insofar asthe river is adjacent to Spring Creek Pastoral Lease) by the Mawsons forthe purposes of watering their cattle and horses, domestic use of water,camping, fishing or any other traditional uses.As there is no evidence that the claimed part of the Wearyan River is used bytourists for fishing or camping the claimants make no comment as no questionof detriment arises in relation to such activities. The second matter raised by theletter concerns the claim to the Robinson River. The first point made is that:The claimants will not, if granted the area of the Robinson River underclaim, interfere with the Shadforths' current use for the purposes ofwatering his cattle and horses or domestic use.

30The following statement is made concerning the use of the river made by theowners of Seven Emu in relation to tourist fishing and camping:The claimants are concerned that they know who is using the claim area- and prior to Mr Shadforth's evidence they were unaware of the extent ofhis fishing operations. If granted the land, the claimants would not seekto prohibit fishing along the relevant part of the claim area but would liketo regulate it by, for example, requiring notification prior to entry (via, forexample, the usual permit system). This would ensure that the claimantsknew who was on their land at any particular time and enable theclaimants to advise such persons of places of importance to the claimantsthat visitors should keep away from.83. On 4 June 2002 the Solicitor for the Northern Territory wrote to theCommissioner (with copies to the N-LC and Withnall Maley & Co.) in responseto the NLC's letter of 20 May 2002 (exhibit ALC 5). The Solicitor's letter (nowmarked as exhibit ALC 6) includes the following statement:The Territory notes that the marine ranger proposal (as canvassedby Mr Pauling QC at the detriment hearing, see transcript 23/4/02 atpp. 11.35, 40.18fY, and Miss Gatis on the 20/5/02 at p.53.25-54.4) is auseful tool in regards to addressing the concerns of traditional ownersregarding visitation/use of their traditional lands by recreational fishersand in relevant cases, commercial fishers. However, we note that giventhat the claimants would like to "regulate" fishing along the relevant partof the claim area by "for example, the usual permit system", the marineranger program may not be appropriate.Given the above, the Territory has reconsidered its position in relationto this matter on the basis that it is apparent that this matter is not theappropriate "boat" (as noted by Mr Parsons at p.42.21-24 of transcript)upon which to try out the proposed approach.84. The Commissioner's obligation under s 50(3)(b) of the Land Rights Act isto comment on "the detriment....that might result if the claim were accededto either in whole or in part." Although the Act does not specifically requirecomment on possible steps that may be taken in order to ameliorate detrimentthat may result from a grant of title it is appropriate that the following mattersbe drawn to the Minister's attention. In this case the claimants have recognisedthat a grant of title could cause detriment to their closest neighbours, some ofwhom are close relations, and have offered a commitment not to alter the existinguses of the rivers. Just how such a commitment would be implemented has notbeen addressed. It is appropriate to observe that in the absence of some legallyenforceable arrangement (such as a declaration under s 11 of the Aboriginal LandAct (NT)) any voluntary undertaking given now may be amenable to withdrawalat a later date; and further, it is difficult to see how such an undertaking could berelied upon by the Mawsons' and Shadforths' successors in title. The absence ofany legally binding commitment to permit the continued use of the claimed landin accordance with current practice could have a detrimental effect on the value ofthe adjoining pastoral properties in the event of a sale.

31Effects on patterns of land usage85. If a grant of title to the claimed land resulted in the denial to the owners ofSpring Creek and Seven Emu pastoral leases of their existing rights under s 11of the Water Act (NT), there would be some effect upon the existing patterns ofland usage in that the operations of the two pastoral properties would have to bereorganised in such a way as to seek alternative sources for the water presentlyaccessed from the claimed areas.Cost of acquiring other interests86. As the claimed land does not include any alienated Crown land there are nointerests of persons other than the Crown that would need to be acquired tofacilitate a grant of title.Summary of findings, recommendations and comments87. The following is a summary of the findings, recommendations and commentscontained in this report:a) The whole of the claimed land the subject of this report namely:i) All that land being the bed and left bank of the WearyanRiver lying between the boundaries of Northern TerritoryPortion 3975 and Northern Territory Portion 814 (SpringCreek Station); andii)All that land being the bed and right bank of the RobinsonRiver lying between Northern Territory Portion 3975 andNorthern Territory Portion 1351 (Seven Emu Station);is unalienated Crown land which is available for claim;b) The Aboriginals named in Appendix 3 are traditional Aboriginalowners of the claimed land;c) 1 recommend that:i) the claimed land be granted to a Land Trust in accordancewith sections 11 and 12 of the Land Rights Act;ii)the claimed land be granted to the Garawa Aboriginal LandTrust;d) Approximately 400 Aboriginals with traditional attachments to theclaimed land may be advantaged by a grant of title;e) A grant of title would advantage Aboriginals with traditionalattachments to the claimed land in so far as it would amount to arecognition of their traditional attachments to that land and wouldenable the traditional owners to exercise influence over the futureuse of the claimed land;f) Detriment may result to the Aboriginal families who currentlyoperate Spring Creek Station and Seven Emu Station if a grant oftitle is made;g) A grant of title would cause some detriment to the owners of SpringCreek Station and Seven Emu Station whose existing rights under.

32the Water Act (NT) to use the waters of the Wearyan and RobinsonRivers for stock and domestic purposes would be curtailed unlesssome satisfactory arrangements are made with the traditionalowners to permit the current use of the claimed land to continue;h) A grant of title to the claimed sections of the Robinson River maycause minor detriment to the tourist fishing activities presentlycarried on by the owners of Seven Emu Station unless somesatisfactory arrangements are made with the traditional owners topermit the current use of the claimed land to continue;i) The traditional owners have indicated a willingness to permit thecontinuation of the current use of the claimed land by the ownersof Spring Creek Station and Seven Emu Station but it is uncertainwhether the undertakings offered are capable of being withdrawn;nor has it been indicated whether they would continue to apply forthe benefit of the successors in title of the present owners;j) A grant of title may have some effect on the existing and proposedpatterns of land usage in the region to the extent that the continuedpastoral and tourist operations of the owners of Spring Creek andSeven Emu Stations may be affected;k) There are no interests of persons other than the Crown that wouldhave to be acquired to facilitate a grant of title.

33APPENDIX 11. Representation of partiesMr D. Parsons SC with Ms P. Creswell (instructed by the Northern Land Council)appeared for the claimants.Mr T. Pauling QC with Ms K. Gatis (instructed by the Solicitor for the NorthernTerritory) appeared for the Attorney-General for the Northern Territory.2. Hearings:23 April 2002 Opening statements and evidence at Robinson River community20 May 2002 Directions hearing at Darwin3. Witnesses:Jim MawsonKathleen MawsonFrank ShadforthJohn Henry KeighranDavid Keighran4. Exhibits tendered to the inquirya) Tendered by Northern Land CouncilExhibit No Description of ExhibitNLC 1 Anthropologist's Report (September 2001)N-LC 2 Site mapNLC 3 Site register (September 2001)NLC 4 Claimants' profiles (September 2001)NLC 5.1 Genealogy Group 1 - Mambaliya (September 2001)N-LC 5.2 Genealogy Group 2 - Wuyaliya (September 2001)NLC 5.3 Genealogy Group 3 - Rhumburriya (September 2001)NLC 5.4 Genealogy Group 4 - Mambaliya (September 2001)NLC 6 Submission on status of land (March 2002)NLC 7 Letter Solicitor for the Northern Territory to Aboriginal LandCommission (20 December 2001)NLC 8 Statement of Morris Davey (aka John Morris) (22 July 2002)NLC 9 Statement of Les Hogan (18 July 2002)NLC 10 Statement of Larry Hoosen (22 July 2002)NLC 11 Statement of Donald Bob (22 July 2002)NLC 12 Final Submission (22 July 2002)NLC 13Letter Northern Land Council to Aboriginal LandCommissioner (25 July 2002)

34b) Tendered on behalf of the Attorney-General (NT)NTG 1 Notice of intention to be heard (3 April 2002)NTG 2 Outline of detriment issues (15 April 2002)NTG 3 Statement: William Flaherty (11 April 2002)NTG 4 Statement: John Fitzgerald (15 April 2002)NTG 5 Statement: Steven Robertson (11 April 2002)NTG 6 Topographical map (Robinson)NTG 7 Topographical map (Wearyan)NTG 8 Submission of Attorney-General (NT) (16 July 2002)NTG 9 Letter Solicitor-General (NT) to Aboriginal Land Commissioner(23 July 2002)c) Tendered through the Aboriginal Land CommissionerALC 1ALC 2ALC 3ALC 4ALC 5ALC 6Letter Frank Shadforth to Aboriginal Land Commission (8 April2002)Letter Jim Mawson to Aboriginal Land Commissioner (17 April2002)Letter David W. Keighran to Aboriginal Land Commissioner(3 April 2002)Letter Withnall Maley & Co. to Aboriginal Land Commissioner(12 April 2002)Letter Northern Land Council to Aboriginal LandCommissioner (20 May 2002)Letter Solicitor for the Northern Territory to Aboriginal LandCommissioner (4 June 2002)

35APPENDIX 2CHAPTER 2 - HISTORY2.0 INTRODUCTIONGiven the relative isolation of the country and the limited non-Aboriginal interest in theregion, written records of Aboriginal contact with Europeans are sparse.Land claim materials which are relevant are the: Borroloola Land Claim (Borroloola1; Avery and McLaughlin, 1977), the Warnarrwarwarr-Barranyi (Borroloola 2) LandClaim (Bradley, 1993), Nicholson River (Waanyi-Garawa) Land Claim (Trigger, 1982)(Dymock, 1982) and the Garawa/Mugularrangu (Robinson River) Land Claim (Trigger,1989; Trigger & Wood, 1989). Pickering (1997:96) also has a useful summary of Garrwacontact history.The data analysed here demonstrates the continuing presence of Aboriginal peopleacross the region, including the claim area. The historical records support a conclusionthat the Garrwa have maintained a continuing association with the claim area since earlyexploration until the present.2.1 PREHISTORYThere have been limited archaeological studies within the claim region (Pickering, 1997:94-6, summarises these). Baker (1999:148) observed shellfish middens of considerableage eroding out of the riverbank at the Wearyan River's mouth suggesting a long historyof use. He also notes that:"A high density of stone artefacts testifies to the intensive use of the area beforeMacassans and Europeans introduced steel and glass, which replaced stone as theraw material for tools" (Baker, 1999:148).This corresponds to the findings of Robert Graham, who notes that the length ofAboriginal occupation of the Lorella area - situated approximately 100 kilometres northof the current claim area is estimated at around 2000 BP (Graham, 2001). Like Baker,Graham indicates that stone debris and other material from old campsites are frequentlyseen in the Lorella Claim area (Graham, 2001:52).Pickering's research (1997:94-6) indicates that engravings at one site within the claimregion have stylist and surface patination indicators of a possible Pleistocene age. Thisevidence along with a number of cases and shelters having possible deep archaeologicaldeposits leads Pickering to postulate that:"This evidence suggests that humans have probably occupied the southern inlandGulf region for at least 30,000 years, if not considerably longer" (1997:96).2.2 EARLY EXPLORATION & PASTORAL INTRUSIONSLudwig Leichhardt's exploring party travelled from the Nicholson River to the WearyanRiver from late August to late September 1845. His descriptions demonstrate Aboriginalenvironmental knowledge of the region. For instance, south of the Seven Emu River, lierecords regarding the pandanus fruit:

36"...the natives neutralised the noxious properties of the fruit; which, from thelarge heaps in their camps, seemed to form no small portion of their food...[They] appeared either to have been soaked, or roasted and broken, to obtainthe kernels: for which purpose we invariably found large flat stones and pebblesto pound them with... I supposed that they washed out the sweet mealy mattercontained between the stringy fibres, and that they drank the liquid, as they dowith the honey; and that their large koolimans which we had occasionally seen,were used for the purpose" (Leichhardt, 1847:40 1).By following the tracks of Aboriginal people he and his party were able to find freshwater. On the 16th of September 1845, near the Robinson River they found:"...a well formed by the natives, who had raised a wall of clay, by which theycaught the fresh water which sparingly oozed out of a layer of clay very littleabove the mark of high water" (Leichhardt, 1847:405).Leichhardt also records finding various objects, which appear to be ceremonial or,sacred' items. He describes entering a campsite by the Robinson River where theyfound a 'rude wall of stone, for catching fish' and the 'carcase of a crocodile; and theskull of another'. On this occasion, people were nearby. They saw 'two very old men'and at the campsites itself, they found:"...pandanus seeds soaking in large vessels; emu bones were lying in the ashes,and the feet of the emu were rolled up and concealed between the teatree barkof the but. A small packet contained red ochre to colour their bodies and largerpackets contained soaked Cycas [CYCAD] seeds, which seemed to be undergoingfermentation" (Leichhardt, 1847:409).Slightly north of the Wearyan River, they heard the calls of natives behind them.Leichhardt stopped and exchanged gifts with an old man. He also described the youngermen accompanying the old man:"They must have had some intercourse with white men, or Malays, for they knewthe use of a knife, and valued it so highly, that one of them offered a gin for one.They appeared equally acquainted with the use of our firearms. No doubt theyhad seen the Malays, and probably some had accompanied them to the islands; asit is a common custom of the Malays to take natives home with them, that theymay become friendly to them when fishing for trepang at this part of the gulf'(Leichhardt, 1847:414).Leichhardt's journal entries indicate that the Aboriginal people he encounteredwere living a relatively isolated, yet sophisticated, existence. They had establishedcommunications with outsiders and were trading with them and were highlyknowledgeable of their own environment.Leichhardt's expedition led to the 'opening up' of the Gulf country, which not onlychanged the nature of the environment, but also had long-term consequences for theAboriginal people of the region.In 1856, Gregory's party passed through the western region of the Wearyan, Robinsonand Seven Emu Rivers. Gregory's travels were further inland than Leichhardt's and

limited in scope. However, he provides evidence of Aboriginal people's presence andactivities close to the claim area. Near the Seven Emu River he found:37"Some spears and water vessels, which had been hidden under some sheets ofbark by the blacks, who evidently were out hunting, as we heard them callingto each other in the afternoon, though they were not seen. These water vesselswere formed by hollowing out a block of wood in the shape of a canoe, and had acapacity of three gallons, and it was evident that they possess tools of iron as alsoof stone" (Gregory, 1857:166).Few detailed explorations of the claim area were carried out between 1856 and 1886.It was not until the 1870s, when droving parties started to establish stock routes acrossthe Gulf country, that encounters with the Aboriginal people in the region were recordedregularly.The main purpose of these droving expeditions was to supply cattle and other livestockto those who had taken up pastoral leases in the Territory. Other incentives for drovinglivestock were provided by the discovery of gold around the Pine Creek Region (Trigger,1989:2) and the 'work camps' set up along the route of the Overland Telegraph Line(Dymock, 1982:25).The first droving expedition through the Wearyan/Robinson claim region was theUhr and Cox party which drove cattle and horses from Queensland into the NorthernTerritory, to 'work camps' on the Overland Telegraph Line (Dymock, 1991:25). Cox andUhr had a violent encounter with Aboriginal people at 'Calico Creek' located betweenthe Robinson and McArthur Rivers. The Brisbane Courier reported:"At about 11 o'clock in the forenoon, the country being very scrubby the men hadsome trouble getting the cattle along... The men at once proceeded to the front todiscover the cause of this movement, and on reaching the spot were saluted with ashower of spears. Quickly unslinging their rifles, they retaliated with a brisk fire,the Westley-Richards telling with deadly effect even at 350 and 400 yards. Stillthe blacks showed a bold front, and were not driven back without an obstinateresistance. When they had at length been fairly driven off the field, the victorsran the creek upwards and downwards till the camp was discovered deserted, andthere found numerous bundles of spears, nulla-nullas, and boomerangs, whichwere quickly broken up and burnt...More amicable intercourse was established with the next tribe, who were foundvery friendly... The whites presented their coloured brethren with a quantity offish-hooks, handkerchiefs, and old clothes, besides large quantities of beef, andthe owners of the soil responded with fishing lines, made of their own hair, andas a make-weight obligingly threw in a little blackboy, who went with his newfriends, very unconcernedly..." (Brisbane. Courier, 1874, in Dymock, 1991:9).The resistance of Aboriginal people to incursions on their land is illustrated by thearticle. Mention of aboriginal ownership of land ("owners of the soil") signifies anacknowledgment (be it a scant one) that Aboriginal people of the Wearyan and RobinsonRiver area were owners and occupiers of the land before European settlement. Anotherarticle from the Brisbane Courier provides further evidence of Aboriginal people

inhabiting the claim area and interacting with Macassans (Brisbane Courier, 2ndNovember 1876). The author records the hostile attitude of the Aboriginal residentsnoting that:38"Between the Lennman Bight and Nicholson the aborigines are, if anything, morehostile than those from... Palmerston" (Dymock, 1991:35).Thus as the Aboriginal people resisted intrusions into their land, the grounds for ongoingconfrontations were established (also see 'The 138th Meridian', 1886 in Dymock,1991:104).The township of Borroloola was established in 1885. However, Aboriginal people of theclaim area and its vicinity initially were inclined to remain on their country. MountedConstable Power noted that Aboriginal people from around:"... mouth of the McArthur, Warion and Robinson River never come intoBorroloola" (Power, 1897).He also indicated that Aboriginal people located between the Robinson River andSettlement Creek were dangerous (Power, 1897). To manage the problem ConstablePower proposed to patrol the Wearyan and Robinson Rivers and distribute tobacco toAboriginal people. He explained that:It is given for good behaviour, and that some blankets will be distributed amongstthem at the annual distribution, if they continue to behave themselves" (Power,1897).2.3 THE BORROLOOLA POLICE DOCUMENTSThe Borroloola Police Journals and other documents recount numerous incidentsbetween non-Aboriginals and Aboriginal people from the time of the establishment ofthe Police Station in 1886 until 1940s. The Police correspondence also elaborates on theinfluence of the early pastoral industry in and around the claim area, including its effecton the Aboriginal population (see Daily Journal September 8th 1908, December 7',1908).Many entries indirectly highlight the brutality of whites against Aboriginal people andsubsequent Aboriginal reprisals, as they attempted to dissuade settlers from inhabitingtheir land.For instance, in July 1909, the journals record that the renegade 'Pupelee'- wanted inrelation to the murder of a white man named Ted Egan, whose bones and a boot werefound in a waterhole on the Robinson River - was reported by an old man, campingwith his two wives on a small creek between the Robinson and the Foelsche Rivers. Hetold the police that 'Pupelee' was camped in 'scrub either low down the Robinson or outin the Calvert Ranges making stone spears...' (Borroloola Police Station Daily Journal,1909).Further reports in the Borroloola Police Outwards Letter Book for that year indicatethat the police were kept busy tracing people involved in cattle killing on McArthurRiver Station, and pursuing them to areas such as the Glyde and Wearyan Rivers (seethe Borroloola Police Station Outwards Letter Book, 1910, NTRS F275 - for the report

39of cattle killing at McArthur River Station and the pursuit of 'Dick' in the ranges on theGlyde River and 'Doodlembuck' to the Wearyan River).Dymock's (1991:89) research indicates that the documentation from the Police Stationin the early 1900s demonstrates that the Upper Glyde, Wearyan, Foelsche and RobinsonRivers, were strongholds for nomadic Aborigines.The case of "Murdering Tommy" also exemplified Aboriginal resistance and defiance ofEuropean laws, and has since attained legendary status among the Aboriginal people (seeAvery and McLaughlin (1977:2 1) and Trigger and Wood (1989: 5-6) for discussion of'Tommy' and his escapades). The Garawa/Mugularrangu Claim transcript also discussesTommy (pp 75-6).Throughout the 1920s and 1930s, Aboriginal people continued to be the subject of manypolice investigations. Most related to cattle thefts and disturbances to pastoral properties(see specifically Borroloola Police Station, Daily journals 1921, 1922, 1924, 1927, 1929,1930, 1931, 1933 and 1936).The reports also indicate that the police were in some cases brutal in their handling ofAboriginal prisoners. This is highlighted in perhaps one of the most disturbing incidentsof this period, involving the case of 'Dolly'.During early 1933, Mounted Constable Stott whilst on patrol between Borroloola andWollogorang Station arrested some Aboriginal people, for unlawful possession of beef.Aboriginal witnesses were also detained. During the trip back, on the 4th February 1933,Dolly - one of the witnesses - died at a camp near the Wearyan River. The circumstancessurrounding her death were reported by Stott; he stated that her death was most likelyrelated to 'cancer of the womb' (Borroloola Police Station Daily Journal, 1933).Subsequent statements by the Aboriginal people indicated that Stott had brutally beatenand raped Dolly. Stott was charged with assault and sent to trial in Darwin in 1934.Several Aboriginal people gave evidence. Despite evidence that Stott had beaten Dollywith a 'waddy' and had 'rubbed excreta in her face', Stott denied all charges and wasfound not guilty (see Northern Standard 20th and 24th April, 1934). Dolly's death is alsodiscussed in the Garawa/Mugularrangu Land Claim Transcript (pp 70-5).Further evidence of Aboriginal activity around the claim area and the continuing practiceof traditional laws and customs can be found in the reports of Constable Birt. Theseconcern the death of Fred Brown, who in January 1940 was the victim of a 'pay back'killing at a camp of the Foelsche River, after his "tribal wife" eloped with a younger man(Birt, 1940).2.4 MANANGOORAManangoora homestead is where many of the older claimants were born. Manangoorais situated on the Wearyan River, north of the current claim area. Permanent settlementof Manangoora by non-Aboriginals did not eventuate until the late 1920s, when HoraceFoster took over the salt works lease (the Mangoora settlement area is now part of apastoral lease run by the descendants of early non-aboriginal settlers and their Aboriginalwives). Aboriginal people had always maintained a close association with the area.Baker stresses the importance of the area prior to European settlement especially as alocation for Kunabibi ceremonies, (1999:148). He notes:

40"Ceremonial activity continued in the area after Foster's arrival with the moresignificant ceremonies being held a discreet distance away from the Europeanhomestead" (Baker, 1999:149).The commencement of a commercial salt gathering process resulted in a change fromseasonal to more permanent work. According to Baker, Foster chose Manangoora as thesite for his industry, mainly due to the high concentration of Aboriginal people in thearea. The population around Managoora had always been relatively stable (Baker, 1999:148-9). The region was also noted for its abundance of bush tucker. Baker states:"Manangoora served as a base from which people could hunt... They used to goup the river look for sugar bag, goanna... fish... camping out for one week, mightbe two week" (Baker, 1999:149).However, the establishment of a 'salt works' certainly increased Manangoora's appeal asa place where European foodstuffs could be obtained to supplement the labour intensivework associated with gathering bush-tucker. Baker notes:"European items such as tobacco, flour, sugar and tea would have beenadded to the existing economy. The addition of flour would have reduced thelabour-intensive work of women in preparing cycads to produce the bush-tuckerequivalent of bread. The European boss at Manangoora, however, did not alwayshave flour and when he ran out he relied on Aboriginal people to provide cycadequivalents" (Baker, 1999:149).Many claimants (some now deceased) were born and grew up at Manangoora. BillHarvey the writer and Northern Territory identity lived for a time at Manangoora,Borroloola and Seven Emus. His work (1946, 1957, and 1958) is a valuable record oflife in the claim region in the 1920s. His books and articles gives the names of wellremembered Aboriginal people and data on the gathering and preparing cycad palm fruit,and Aboriginal ritual, trade cycles etc. He also describes Aboriginal involvement in thecattle industry.Baker (1999:303-4) argues that European presence at Manangoora changed Aboriginalsettlement and movement:"... it is very significant, however, that those stressing the seasonal range fromManangoora are older individuals. With time people spent longer of each year atManangoora and made lesser movements to other locations.The reminiscences of younger people stress the semi-permanent life style thatdeveloped here".Another factor in the gradual movement of the claimants' ancestors and other Aboriginalpeople to semi-permanent camps was the establishment of a Police Rationing Depotat Borroloola in 19 10 (see Bradley, 1993:78). At this time Aboriginal people were alsoattracted to other European camps between the Wearyan and Calvert Rivers whichbecame the pastoral stations of Greenbank and Seven Emus.In February 1950, patrol officer Ted Evans patrolled the Wearyan River by dug outcanoe. While at Rocky Glen Station, he 'took particulars of natives who arrived... from

41Pungalina station. These are the vanguard of a "big mob" who are alleged to be movingin from the surrounding district for a corroboree at Manangoora' (Evans, 1950:3) (alsosee Bradley, J. (1993:26) for his note re: A personal communication with Ted Evans, re:,people moving en masse to Manangoora to attend a-Kunabibi [sic] rituals', in 1950).This report also notes the availability of bush foods in the Manangoora and Wearyanarea. He noted:"There is an abundance of native foods in this district at this time of the year, oneunusual item being water-melons which grow in profusion all over the country,particularly along the river banks... The wallabies strike me as particularly 1;rgeDugong and turtle are also plentiful" (Evans, 1950:4).The ongoing association of Aboriginal people with the area is shown by the reluctanceof people, especially the elderly, to leave the region and move to a place that is not their'traditional country'. Evans notes that there are a number of elderly 'natives' living atManangoora and Rocky Glen - aged between 65 and 80 - who did not want to leave thearea. He stated that these people are:"...at present either at Managoora or Rocky Glen and belong to the Karawa tribe.Strictly speaking Borroloola is Yanula country and these tribal elders will not'sit down' here where they could be rationed from the Aged and Infirm Depot.At the time of my visit they appeared well and happy but they had had the youthof the tribe about them for some months previous and they had doubtlessly beenreceiving bounteous supplies of natural foods during that time. But from nowon the young men commence to drift out to work on the stations and it is duringthe dry time that the maintenance of the old people becomes a problem" (Evans,1950:5).During 1948 patrol officer, Kyle-Little, accompanied by a police officer from Borroloola,patrolled cattle stations in the vicinity of the claim area including Manangoora Station.He noted:In this area there were ... approximately 50 natives (living a nomadic life). Theywere camped on the opposite side of the Wearyan River. Unfortunately most ofthis group went bush the moment they knew the Police were at Manangoora"(Kyle-Little, 1948:2).Their sudden disappearance was a result of people's previous experiences with police:"I questioned various natives as to why they were frightened of the police andthey all stated that policemen before, evidently 8 or 10 years ago, had alwaystaken young men away in hand cuffs for no apparent reason. ... Police took theseboys away and forwarded them on to drovers or cattle stations on the BarklyTablelands for work. It is quite definite that this practice has not been carried outfor the last few years but the natives in the area are still very frightened of thePolice" (Kyle-Little, 1948:2).The presence of Garrwa people was also recorded at Manangoora at this time. Itssignificance as a ceremony site and the abundance of bush food in the area was alsonoted by Kyle-Little:

42"The group [at Managoora] comprises two native tribes, Karara and Yanula.Manangoora is an old established tribal ground and all the natives of theBorroloola district visit this country when on walkabout or holiday period. Thereis an abundance of native foods, ie. cycad palm nuts, yams, wallaby, unlimitedsupplies of fish, dugong..." (Kyle-Little, 1948:2).Other stations of the claim region were inspected during the patrol, including, FoelcheRiver, Robinson River Station, Seven Emu Station, Pungalina Station, WollogorangStation (including Siegal Creek and Redbank Copper Mine) and Calvert Hills Station.Kyle-Little recorded the people employed or residing in the area. At Seven Emu he notedthat:,'There were approximately 40 natives in the area. ... Most of these were away onwalkabout and were proceeding to Manangoora" (Kyle-Little, 1948:3).Kyle-Little's report illustrates Aboriginal residence within the vicinity of the claim area.It highlights the difficulties associated with obtaining accurate records regarding thenumbers of people actually in the area; people are recorded as 'going bush' or being on,walkabout'.His report also raises the issue of Garrwa involvement in the pastoral properties of theBarkley Tableland. The pattern of using Garrwa people on these stations developedduring the Second World War. Bill Harney who was employed as a Native Affairs PatrolOfficer during this time indicates:"The coastal and river natives of the Pellew group of islands and the Wearyanand McArthur Rivers were, a few years ago, a strong tribe of people who lived bythe sea in canoes and were a peaceful lot. During the last four years, a systematiccleaning out of these people has been going on and on my recent patrol of theBarkly Tablelands I was amazed at the number of coastal people who were sentout of Borroloola by the local protectors there..." (1944:1-2).Once this occurred a particular pattern of residence developed. Borroloola and otherplaces nearby became a permanent base for older people (and some dependants) whilstpastoral workers spent the dry seasons working on Barkly pastoral stations such asAnthony's Lagoon and Brunette Downs. Once the wet season commenced they weretrucked back to the Borroloola area. Whilst many Garrwa got trapped in this seasonalexploitation of their labour, others developed almost permanent residence on cattlestations of the area, such as, for example, Spring Creek, Robinson River, Greenbank,Seven Emus and Calvert Hills. As Hamilton and Niblett indicate, the Garrwa were:"...particularly well-incorporated into the station economics, providing the basisfor their experience of employment and of life alongside whites. Many of thepresent-day Garawa people at Borroloola and nearby are direct descendants ofearly white settlers and their Aboriginal wives and consorts" (1944:29).2.5 ATTEMPTS TO RESERVE LANDIn 1920, a proposal to establish a reserve at Robinson River was made by W. Waters,the Acting Chief Protector of the Northern Territory. It was again proposed in 192 1;however, nothing came to fruition (Dymock, 1982:96). It was not until the 1950s that

such suggestions were given serious consideration. This was as part of an attempt toreplace the ration depot at Borroloola.Also there was an increasing desire to closely monitor and control the Aboriginalpopulation by the Welfare Branch which aimed to:43"... direct and encourage the re-establishment of the Aborigines that they willeventually be assimilated as an integral part of the Australian community"(quoted in Avery and McLaughlin, 1977:7).One suggested location was:"... Snake Lagoon, 2 miles off the Foelsche River and on the new road to be madebetween Manangura and Cresswell Downs Station. Snake Lagoon is 15 milesfrom Manungura, and is reported to have an abundant supply of permanent freshwater, a building area above flood, and soil suitable for cultivation" (Sweeney,1953:4).Administrators believed the abundant natural resources and better soil meant thatAboriginal people could be organised to develop skills that would civilise and keep themin one place. As Sweeney stated, with regard to Borroloola, 'the local resources are notfavourable to the development of self-help activities, such as agriculture and gardening'(Sweeney, 1953:2).The Snake Lagoon proposal for the depot's location had the further advantage of accessto the Barkly pastoral properties, where people were continuing to be encouraged toobtain work. Regarding the proposed road from Creswell Downs, Sweeney noted that'this will be the main coast connection to the Tablelands and Borroloola will be furtherisolated' (Sweeney, 1953:4).By 1957 formal recommendations were made by the local Welfare Officer to reserveland outside Borroloola for the use of Aboriginal people:"During 1957-8 patrols were made in search of a suitable site for theestablishment of a full scale settlement, and a tentative location has been chosenin the vicinity of the Robinson River" (Northern Territory Annual Report,1957-58, in Avery and McLaughlin, 1977:9).The director of Welfare Branch, Harry Giese, also suggested that the Reserve couldprovide the facility for training wards for employment in the Barkly Tablelands pastoralindustry. Giese, argued:"... that the lease for Seven Emu station should be transferred to the WelfareBranch to become part of the pastoral project associated with the Robinson RiverSettlement. He felt that such a project would provide productive employment forsettlement residents; satisfy the meat requirements for the settlement and would"provide further trained young men for work on the Tableland Stations" (Giese,196 1: 1, in Trigger and Wood, 1989:11).The settlement at Robinson River had become a semi-permanent camp by 1960, andwith drought affecting Borroloola the Welfare settlement was moved temporarily toRobinson River in 1961 (Trigger and Wood, 1989:12). However, just as the Garrwa, (as

44stated by Evans in 1950) were reluctant to reside in Borroloola - so were the Yanyulareluctant to leave the country around Borroloola. As noted by Bradley:"...during their time there they made a number of dugout canoes which enabledthem to paddle out to sea, to the islands and eventually back up to the McArthurto Borroloola" (Bradley, 1993:25).The life of the depot located at Robinson River was short lived.2.6 RECENT EVENTSThe recent events to affect the claimants and their land are summarised in the Garawa/Mugularrangu Land Claim (see in particular the Claimants' Final Address (Blowes,1989)). These include attempts to purchase the pastoral lease, its eventual purchase, theestablishment of an Aboriginal controlled community on the lease, as well as numerousoutstations (see pp 17-23).The claimants mostly reside on communities located in the Gulf/Barkly area includingRobinson River, Borroloola and Tennant Creek.2.7 CONCLUSIONSArchaeological material suggests that Aboriginal people's association with the claimarea has been continuous for at least the past 2000 years. The historical record revealsthat people have been recorded around the claim area since the early days of Europeanexploration until the present time.Records such as the journals of early explorers, reports from government officials,especially the reports generated by the Borroloola Police Station, settlement records andthose involved in the pastoral industry, attest to the ongoing association that Aboriginalpeople have with the region around the claim area. More recent evidence for continuingoccupation and ownership of 'country' exists in the pursuit of land under the AboriginalLand Rights Act (NT) 1976 (see Trigger and Woods, 1989:13 for details of documentsexpressing the Garrwa people's desire to remain on their country).REFERENCESAvery, J. & McLaughlin, D. 1977. Submission by Northern Land Council to theAboriginal Land Commissioner on the Borroloola Region Land Claim.Northern Land Council, Darwin.Baker, R. 1999. Land is Life: From Bush to Town - the story of the Yanyuwapeople. Allen and Unwin, Sydney.Blowes, R. 1989. GarawalMugularrangu (Robinson River) Land Claim.Claimants' Final Address. Blackburn Chambers, Canberra.Birt, G.R. 1940 Borroloola Police Station, re Reported death of aboriginal FredBrown, 19 January, 1940, 28th March 1940 and 1st May 1940 COS F320195.

45Borroloola Police Station Daily Journals, NTRS F2681908,1909,1921,1922,1924,1927,1929,1930,1931,1933,1936Borroloola Police Station Outwards Letter Book, NTRS F275Bradley, J. 1993. Warnarrwarnarr - Barranyi (Borroloola 2) Land Claim.Anthropologists Report on behalf of the claimants. Northern Land Council,Darwin.Dymock, J. 1982. Historical Material Relevant to Nicholson River Claim Areas,for the Nicholson River (Waanyi/Garawa) Land Claim. Northern LandCouncil, Darwin.Dymock, J. 1991. The 138th Meridian, July 1886,- Cornerstones to the NorthernTerritory's Pastoral History. National Trust, Darwin.Evans, E. 1950. Patrol to Wearyan River 10 March 1950. CRS F315 491393APart 3.Garawa/Mugularrangu Land Claim. Transcript of Evidence.Graham, R. 2001. Lorella Coast (And Cox River) Land Claim. AnthropologistReport. Northern Land Council, Darwin.Gregory, AC. 1857. Journal of the North Australian Exploring Expedition(1855-56). First published 1884, The Royal Geographic Society, London.Hamilton, A., & Niblett, M. 1994. Borroloola Community Development PlanningStudy and Final Report and Recommendations. Northern Land Council,Darwin.Kyle-Little, S. 1948. Report relative to Mines and Cattle Stations EmployingNative Labour in the Borroloola District. CRS. F315 491393 Part 11.Leichhardt, L. 1847. Journal of an Overland Expedition in Australia. T & W.Boone, London.Pickering, M.P. 1997. Wangala Time, Wangala Law. Hunter and GathererSettlement patterns in a sub-humid to semi-arid environment. PhD Thesis,La Trobe University, Bundoora.Power, M.C. 1897. Letter from Constable Power to the Government Resident,3 November 1897. NTRS F790 A89 189911898

46Sweeney, G. 1953 Report from District Superintendent, re.. Native Depot atBorroloola and its Future, 2 June 1953. CRS F 1 1962/115.Trigger, D.S. 1989. GarawalMugularrangu (Robinson River) Land Claim. SeniorAnthropologists' Report. Northern Land Council, Darwin.Trigger, D.S. & Wood, M. 1989. History of the Garawa People in the Claim Areafor the GarawalMugularrangu (Robinson River) Land Claim. NorthernLand Council, Darwin.

47APPENDIX 3TRADITIONAL ABORIGINAL OWNERSAaron BobAaron JacksonAndrew DaveyBasil Gan.galaBilly AndersonBilly HoganBobby (child of the late Jack Boy)Bruce HoosenCamilla JacksonCathy RobertsChantelle JacksonClara ThompsonClarissa HoosenClay HoosenClennon BobClifton JackCorey HoganDanzel HoganDavid DaveyDennis HoganDonald BobDorris HumeEileen ShadforthFlorine (child of the late Browny Bob)Freddy JacksonHenrick HoganHenry HoganHorace JoeJaqueline JacksonJimmy JackJimmy JacksonJohn Wayne AndersonJohnny DaveyJosephine Bob (Nelson)Joy DaveyJudy WaldonKathleen (Helen) JacksonKathleen GeorgeKeanu BobKimella DaveyKyle HoosenLarry HoosenLea BobLenin BobLesley BobLesley Hogan (Mawson)Lindy JacksonLoretta AndersonLouie HoganLyle Gan.galaMarion HoosenMary (child of the late Jack Boy)Mawlin (grandson of Durrayjba)May (child of the late Jack Boy)May RedbankMcQuillan HoosenMichael BobMitchell JoeMolly GeorgeMorris DaveyNelson HoganNicholle JacksonNobleNoreen EchoReynold JackRhonda HoganRobert HoganRobert Hogan Jr.Tina HoganTolby BobTopsy GreenTrusky HoosenVeronica DaveyWhitany HoosenWilliam DaveyWilly Bob (Nelson)Wilson JackWinnie BobYvonne Hoosen