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Aboriginal Land Rights (Northern Territory ) Act 1976UPPER DALY LAND CLAIMVolumes 1,2 and 3Report No 37Report by the Aboriginal Land Commissioner ,Justice Kearney ,to the Minister for Aboriginal Affairsand to the Administrator of the Northern Territory© Copy Right Commonwealth of Australia 1991ISSN 0 644 13755 XThis work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may bereproduced by any process without written permission from the Australian Government Publishing Service.Requests and inquiries concerning reproduction and rights should be addressed to the Manager, AGPS Press,GPO Box 84, Canberra ACT 2601.Printed by P. J. GRILLS, Commonwealth Government Printer, CanberraCommonwealth of Australia copyright reproduced by permission.1996

Office of theABORIGINAL LAND COMMISSIONERSupreme CourtDarwin.Telephone 819326.10 August 1989The Honourable G. Hand, M.H.R.,Minister for Aboriginal Affairs,Parliament House,CANBERRA, A.C.T. 2600Dear Minister,UPPER DALY LAND CLAIMIn accordance with s.50(1) of the Aboriginal LandRights (Northern Territory ) Act 1976 I present Volume of 3volumes of my report on this claim. Volume 1 relates to theYubulyawun claim.As required by the Act, I have sent a copy of myreport to the Administrator of the Northern Territory.Yours sincerely,(from Justice Kearney)

Office of theABORIGINAL LAND COMMISSIONERSupreme CourtDarwin.Telephone 819326.10 August 1989The Honourable J.H. Muirhead, Q.C.,Administrator of the Northern Territory,Government House,DARWIN. N.T. 0800Your Honour,UPPER DALY LAND CLAIMIn accordance with s.50(1) of the Aboriginal LandRights (Northern Territory) Act 1976 I present Volume 1 of 3volumes of my report an this claim. Volume 1 relates to theYubulyawun claim.As required by the Act, I have sent a copy of myreport to the Minister for Aboriginal Affairs.Yours sincerely,(from Justice Kearney)

VOLUME 1 THE YUBULYAWUN CLAIMCONTENTS................................................................ PageHISTORY OF THE YUBULYAWUN CLAIM ........................................................................1STATUS OF THE CLAIM AREA............................................................................................1THE CLAIM AREA: LOCATION AND TOPOGRAPHY .................................................... 2HISTORY OF THE CLAIMANTS AND THE CLAIM AREA ............................................... 2THE CLAIMANTS: A LOCAL DESCENT GROUP? .............................................................4COMMON SPIRITUAL AFFILIATIONS TO SITES.............................................................. 5PRIMARY SPIRITUAL RESPONSIBILITY FOR SITES AND LAND ............................... 7Teaching responsibilities ...........................................................................................................7Custodial responsibilities...........................................................................................................7Protective responsibilities ..........................................................................................................8Conclusions .......................................................................................................................... 8ENTITLEMENT TO FORAGE ............................................................................................ 9'TRADITIONAL ABORIGINAL OWNERS': CONCLUSIONS .............................................. 9STRENGTH OF TRADITIONAL ATTACHMENT .............................................................. 9LIVING ON TRADITIONAL COUNTRY ............................................................................10FINDINGS .........................................................................................................................10RECOMMENDATIONS .....................................................................................................12MATTER FOR COMMENT ................................................................................................12(a) Number of Aboriginals advantaged .................................................................................12(b) Nature and extent of the advantage to Aboriginals ............................................................13(c) Detriment .........................................................................................................................13(1) The Daly River ...............................................................................................................13(2) Grazing Licence No. 2074................................................................................................13EFFECT OF GRANT ON PATTERNS OF LAND USAGE...................................................14Roads and borrow pit ..........................................................................................................14Proposals for farm development in the claim area ............................................................. 14SUMMARY OF FINDINGS, RECOMMENDATIONS ANDCOMMENTS ...................................................................................................................15LEGAL REPRESENTATIVES ..........................................................................................16CONSULTANT ANTHROPOLOGIST ................................................................................17LIST OF WITNESSES .........................................................................................................17LIST OF EXHIBITS ..............................................................................................................17APPENDIX 1: Locality of the three areas claimed .................................................................21APPENDIX 2: The land claimed by the Yubulyawun subgroup of theWardaman language group, being part of Area 1 .................................................................22APPENDIX 3: Dorisvale fencing in the vicinity of the claim area.............................................23APPENDIX 4: Roads no 11, 12, 13 and 18 north of the claim area ........................................24

VOLUME 2--THE LABARGANYAYN CLAIMCONTENTS................................................... PageHISTORY OF THE LABARGANYAYN CLAIM27STATUS OF THE LABARGANYAYN CLAIM AREA ........................................................28THE CLAIM AREA: LOCATION AND TOPOGRAPHY ...................................................28HISTORY OF THE CLAIMANTS AND THE CLAIMAREA ...................................................................................................................................29(a) The claim area ...............................................................................................................29(b) The claimants' account .....................................................................................................32(c) Conclusions ....................................................................................................................33THE CLAIMANTS' CASE .................................................................................................33(a) The claimants as a local descent group ............................................................................33(b) Common spiritual affiliations to sites ................................................................................36(c) Primary spiritual responsibility for sites and land .............................................................38ENTITLEMENT TO FORAGE ...........................................................................................39CONCLUSIONS ON TRADITIONAL ABORIGINAL OWNERSHIP ...................................40FINDINGS ............................................................................................................................41STRENGTH OF TRADITIONAL ATTACHMENT ............................................................42DESIRE TO LIVE ON THE CLAIM AREA ..........................................................................43RECOMMENDATIONS ....................................................................................................43MATTERS FOR COMMENT ...............................................................................................44(a) Number of Aboriginals advantaged ................................................................................44(b) Nature and extent of advantage to Aboriginals .................................................................44(c) Detriment ........................................................................................................................44(1) Grazing Licence No. 2074...............................................................................................45(2) The Institution of Surveyors, Australia ...........................................................................45EFFECT OF GRANT ON PATTERNS OF LAND USAGE INREGION .............................................................................................................................46(a) Roads .......................................................................................................................46(b) Other ............................................................................................................................46SUMMARY OF FINDINGS, RECOMMENDATIONS ANDCOMMENTS .......................................................................................................................46LEGAL REPRESENTATIVES .............................................................................................47CONSULTANT ANTHROPOLOGIST ...............................................................................47LIST OF WITNESSES ........................................................................................................47LIST OF EXHIBITS ............................................................................................................. 48APPENDIX I:The land claimed by the Labarganyayn claimant group, being partof Area I; the delineation of its boundary with land solely claimedby Wagiman is approximate only, as is the internal boundary of the'box-up' area..........................................................................................................................51APPENDIX 2:Tipperary Station, prior to subdivision in 1978 into Forster, Litchfield,Elizabeth Downs, Fish River and Tipperary Pastoral Leases. ..................................................52APPENDIX 3:Rough sketch of tribal distribution derived from map No. 7 in theDaly River (Malak Malak) Claim book, based on Stanner's fieldnotes and map of the 1930s. ....................................................................................................53

VOLUME 3--THE WAGIMAN CLAIMCONTENTS......................................................................................................................................... PageHISTORY OF THE INQUIRY INTO THE WAGIMAN CLAIM ..........................................57(a) The amalgamation of several claims .............................................................................57(b) The process of inquiry ..................................................................................................58STATUS OF THE WAGIMAN CLAIM AREA ....................................................................60(a) Douglas Hot Springs and Umbrawarra Gorge Nature Parks ..........................................61(b) Mining tenement B.A. 8B ............................................................................................61(c) Fish River Forestry Reserve ...........................................................................................61(d) Land held under Grazing Licences ..................................................................................62(e) Bed and banks of the Daly River ..................................................................................62THE CLAIM AREA: LOCATION AND TOPOGRAPHY ....................................................63HISTORY OF THE CLAIMANTS AND THE CLAIM AREA...............................................63(a) The claim area ................................................................................................................63(b) The claimants' historical account ..................................................................................64(c) Conclusions ................................................................................................................72THE CLAIMANTS' CASE .................................................................................................73(a) The claimants as a local descent group ........................................................................73(b) Common spiritual affiliations to sites on the land .........................................................74(c) Primary spiritual responsibility for sites and land .........................................................80ENTITLEMENT TO FORAGE ............................................................................................84STRENGTH OF TRADITIONAL ATTACHMENT ..............................................................85FORMAL FINDINGS ..........................................................................................................88LIVING ON TRADITIONAL LAND .................................................................................91RECOMMENDATIONS .....................................................................................................92MATTERS FOR COMMENT--GENERAL ........................................................................92MATTER FOR COMMENT--NUMBER OF ABORIGINALSADVANTAGED AND NATURE AND EXTENT OFADVANTAGE: s. 50 (3) (a) ...............................................................................................93MATTER FOR COMMENT--DETRIMENT .......................................................................93(a) General .........................................................................................................................93(b) Detriment to other Aboriginals .....................................................................................95(c) Area 2 (Douglas Hot Springs Nature Park) .................................................................95(d) Access by the public to the Daly River ...........................................................................97(e) Access to areas of recreational value ............................................................................97(f) Access to features of historical, cultural or archaeological .............................. 97significance(g) Mining .........................................................................................................................98(h) Grazing Licence 2141 ................................................................................................98(i) Innesvale Station ...........................................................................................................99(j) Bradshaw Station...........................................................................................................99(k) Dorisvale Station ..........................................................................................................99(1) Access to survey marks ........................................................................................... 100

MATTER FOR COMMENT--EFFECT ON EXISTING OR PROPOSED .........................100PATTERNS OF LAND USAGE(a) Roads and gravel pits ...............................................................................................100(b) Water bores, river gauging stations, and access by the Northern....................................101Territory Government in relation to water resources(c) Access to historical routes and bridle paths .................................................................102(d) Northern Territory Government proposal for agricultural ........................................103development--the ADMA scheme(i) Agricultural development in the Territory: a history of ........................................103failure(ii) The Forster Report: a blueprint for action .................................................................104(iii) Agricultural development before Territory self-government ...................................109(1 July 1978)(iv) The Lapidge Report: a second blueprint for action .................................................. 110(v) The Northern Territory's evaluation of the Lapidge Report......................................... 114(vi) The Northern Territory Government's approach: a 2-stage ........................................117process(vii) The early years of ADMA ......................................................................................119(viii) The interim views of the Bureau of Agricultural Economics ....................................123(ix) The Martin Report and the Government response ...................................................123(x) A change of pace? .....................................................................................................125(xi) Lands on the west side of the Daly River; potential for ..............................................126agriculture and for pasture improvement(xii) Conclusions and comments...........................................................................................128SUMMARY OF FINDINGS, RECOMMENDATIONS AND ..............................................132COMMENTSLEGAL REPRESENTATIVES .........................................................................................135CONSULTANT ANTHROPOLOGIST ...............................................................................135LIST OF WITNESSES135LIST OF EXHIBITS RELEVANT TO WAGIMAN CLAIM ............................................137APPENDIX 1: ..................................................................................................................143Ruling on question of admissibility of Northern TerritoryGovernment materials directed to detriment.APPENDIX 2: ..................................................................................................................149Map of the lands claimed.APPENDIX 3: ..................................................................................................................150Map of sites referred to by claimants during site tours in Julyand September 1984.APPENDIX 4: ..................................................................................................................151Roads and tracks within the claim area.APPENDIX 5: ..................................................................................................................152Old map showing some locations of historic mining importancein the vicinity of Areas 3 and 4.APPENDIX 6: ......................................................................................................................153Map showing boundaries of grazing licences within claim areawhen claim lodged.

VOLUME 1The Yubulyawun Claim

HISTORY OF THE YUBULYAWUN CLAIM1. In March 1978 and February 1979 the Northern Land Council lodgedapplications under the Aboriginal Land Rights (Northern Territory) Act 1976 (theLand Rights Act) on behalf of two Aboriginal language groups. They claimed tohave traditional land claims to several areas of unalienated Crown land in thegeneral region of the upper Daly River. On II April 1983 the claims wereformally amalgamated under the general title of the Upper Daly Land Claim andthe claimants extended to include a third group. Nevertheless in reality theclaims presented as three separate claims by distinct claimant groups to separateareas of land. The map at Appendix I shows the general locality of the claimareas.2. I deal in this report with the claim by one of those groups, the Yubulyawunsubgroup of the Wardaman language group. Its claim is to the land hatched inblack on the map Appendix 2, being the land bounded by Dorisvale and Willeroopastoral leases and the Daly River, south of Mt. Mistake; see map Appendix 4.3. The hearing of the claim commenced at Claravale Crossing on 17 October1983. The claim area was viewed from the air on 19 October and significantfeatures noted. Sites were visited on 20, 21 and 25 October; all reference to sitesin this report are those shown and numbered on Appendix 10 at p.157, andlisted in Exhibit 92. Following the taking of evidence relating to the other claims,evidence was taken at Katherine from the Yubulyawun claimants on 30 and 31August 1984. Further evidence was then taken in relation to the other claims inOctober and December. Final addresses in relation to the claim were deliveredin March 1985. This report has been much delayed.STATUS OF THE CLAIM AREA4. The claimants call the claim area 'Yubulyawun', which may be translated as'grey hair/eagle hawk'. They indicated the boundaries of their traditional countrywith the adjoining traditional country of other groups; the claim area wassufficiently and clearly located within the country they indicated as traditionalcountry.5. The claim extends to the bed and banks of the Daly River, which constitutesone boundary of the land. The question arises as to whether they are open toclaim. The history of the public control of river waters in Australia is set out byProfessor Clark at pp.105-116 of Exhibit 15A. The legal status of the bed andbanks of the Daly River is discussed by Toohey J at paras 45-67 of the DalyRiver (Malak Malak) Land Claim report. Section 6 of the Control of Waters Actgives the owner or occupier of the neighbouring Claravale and Florina pastoralleases, also bounded by the Daly River, access to that part of the bed and bankswhich adjoin their lands. I respectfully agree with Toohey J (paras 65-66 of theMalak Malak report) that the statutory rights under s.6 do not constitute an'interest' in land for the purposes of the definition of'unalienated Crown land'in s.3 (1) of the Land Rights Act; I reject the arguments to the contrary at pp. 10-16 of Exhibit 88. It is clear that the land comprising the bed and banks of theDaly River along the boundary of the claim area, where the river is non-tidal, isthe property of the Crown and has not been alienated; see the Control of WatersAct, ss.2 and 4. It follows that the bed and banks of the Daly River along theboundary are open to claim as unalienated Crown land and that a grant followingPage 1

a successful claim would extinguish the existing statutory rights of the owner oroccupier of Claravale and Florina pastoral leases under s.6 of the Control ofWaters Act. The claimants, however, are prepared to guarantee access to allpersons by having the bed and banks declared an open area, under s.ll(l) ofthe Aboriginal Land Act (N.T.).6. The rest of the claim area is clearly unalienated Crown land.THE CLAIM AREA: LOCATION AND TOPOGRAPHY7. The claim area lies within the southern part of the tropical monsoon belt.The annual rainfall of some 1000 mm falls mainly in the period December-April,the 'Wet'. The land is drained by the Flora River to the south, Bradshaw Creekto the west, and the Daly River. The country is very broken, particularly in thesouth-west, a series of high and low plateaux of deeply weathered sandstone andsiltstone, with eroded pockets. There is some undulating terrain and plains, withflood plains along the Daly River and its tributaries. Black soils near the rivergive way to red and sandy soils further away; see the description of the land byBill Harney at transcript pp. 476-9. The ground cover is tall grass with a drysclerophyll eucalypt forest.8. A field survey carried out in 1977 (Exhibit 20) indicates that some 597square kilometres (75 per cent) of the vacant Crown land east of DorisvaleStation, which includes the claim area, is unsuitable for agricultural or pastoralimprovement, due to its rugged topography, excessive slope, shallow soils orextreme susceptibility to erosion. Some 68 square kilometres were thought tohave potential for pasture improvement while some 130 square kilometres hadpotential for arable agriculture or pasture improvement.9. The land is untraffickable in the wet season. Land access is in any event verylimited and difficult. There is: access to part of the north-west by the road acrossthe Daly River at the Claravale Crossing. There is road access from the south tonear Jarang, south of the southern boundary of the claim area, near the junctionof Mathison Creek and the Flora River; from there a track follows the Flora toa point a short distance within the southern boundary of the claim area, aboutsix kilometres from the junction of the Flora and Katherine Rivers (see ExhibitIOB). It is possible, though difficult, to drive in the dry season beside the DalyRiver from Claravale Crossing to the Flora-Katherine junction; see transcriptp. 154.HISTORY OF THE CLAIMANTS AND THE CLAIM AREA10. In 1912 Baldwin Spencer recorded the presence of Wardaman women atFlora River; see the photographs at pp. 45 and 46 of Exhibit 4, and at pp. 47and 48 of Exhibit 1. Tindale places Wardaman traditional country generally asextending from the Flora River south of Jasper Gorge. Wardaman people workedat the old Bradshaw Station to the west (later known as Coolibah) in the 1950sand 60s. There is a severe lack of historical material relating to the claim area;the written records of the region are sparse and scattered and little oral historyhas been collected. It is nevertheless vital to gain some knowledge of its historyin order to understand what happened to the Aboriginal people of the regionunder the impact of non-Aboriginal settlement.Page 2

11. The first non-Aboriginals in the general region to the east were explorers,geologists and surveyors; this was in the 1860s. They were followed by workersconstructing the overland telegraph line. In the Upper Daly Basin, to the northand east of the claim area, for 50 years or so from the 1870s there was veryconsiderable mining activity involving for lengthy periods thousands of non-Aboriginal men. The gold rushes meant that the area became the main focus ofmining in the Territory. Cattle stations were established in the region from the1870s, while small-scale farming along the banks of the Daly River alsocommenced in early days.12. Life was hard and poor for the miners and other newcomers. Aboriginalsbecame the indispensable seasonal labour force for such non-aboriginal enterprisesas were carried on. Many Aboriginals 'came in', attracted by non-Aboriginalgoods and food, and settled; on the cattle stations they worked as stockmen.Chinese miners and others introduced opium to them, a matter of concern foryears to the Government; the trading of opium was seen to be the cause of thedepopulation of the Daly River tribes.13. It seems that for many years after contact there was a fair degree of generallawlessness in the region; it was frontier country. What is clear is that the non-Aboriginal intrusions into the general region from early days were heavy andintensive, although often fairly temporary and erratic; they had a profoundimpact on the life of the Aboriginal people of the region and compelled them toadapt their settlement patterns. It may fairly be concluded that the Aboriginalpeople of this general region were subjected to early, lengthy and intensivedisruption of their lives by non-Aboriginals. They adapted to these pressures,supplying their labour, but retaining in large measure their traditional lifestylesand values. This general conclusion as to the results of contact in this region issimilar to that in neighbouring regions of the Territory; see, for example, paras71-78 of the Finniss River Land Claim report and paras 10-23, 28, 32 and 36 ofthe Jawoyn (Katherine Area) Land Claim report.14. The introduction of equal wages in the pastoral industry in the late 1960sand its increasing mechanisation meant that many Aboriginals who until then,by working on the stations, had remained close to their traditional lands, wereforced to leave. The Government did not organise any Aboriginal settlement inthe vicinity of the claim area, and the claimants came to treat Katherine as theirclosest settlement.15. The claimants contended that Wardaman traditional country lies generallyto the south of the claim area, extending through Willeroo, Manbulloo, Innesvale,Coolibah and Delamere pastoral leases. This is not disputed.16. Various claimants detailed their personal life histories during the hearings.A senior spokesman, Bill Harney, closely connected with the claimants, was bornat Willeroo: he described growing up in a traditional lifestyle, walking aroundWardaman country including the claim area, and attending ceremonies. Heworked at Willeroo, Manbulloo, Gordon Downs and many other cattle stationsin the general region as a stockman. In 1981 he set up an outstation near Jarang(site No. 114 on Exhibit 90) south of the claim area, near the Flora River, andsought an excision, while keeping his house at Katherine. His purpose was toenable the claimants better to look after their country; as well,'they got to behappy out here' (p. 115). He said that'all the Yubulyawun mob' came out to theoutstation from time to time. A claimant, Skeeta Harney (Mandabirri), was alsoborn at Willeroo; he described his working life as a stockman on Manbulloo andother cattle stations. He now lived at the outstation. See also the evidence ofclaimants Shirley and Peewee Harney, Lily Gin-gina, Queenie Abejiji and DaisyPage 3

Gimiyn. There was a consistent pattern in the evidence of the claimants: theyhad spent their lives working on cattle stations in the general region of the claimarea. The correlation between the pattern of their working lives and theirtraditional country was marked. They have remained throughout their lives intouch with their country and with members of their group, and led whatamounted to a dual lifestyle combining their traditional economy with theintroduced economy. The lengthy 'walkabout' in the Wet enabled them to visittraditional country and to live at that time a wholly traditional lifestyle, includinga ceremonial life. It appeared from their evidence that despite the modificationsto their traditional way of life they maintained a distinctive identity as a group.As Bill Harney described it at transcript p. 159:Joe Jamunji and biggest mob ... all the old people ... keep walking about, justfishing and that during the Wet. Of course in dry season go back to Willeroo for work.THE CLAIMANTS: A LOCAL DESCENT GROUP?17. The Land Rights Act conceives of the 'traditional Aboriginal owners' ofland in terms of a 'local descent group of Aboriginals' possessing certain affiliationsand holding certain entitlements by Aboriginal tradition; see the definition ins.3(1) of the Act. Claimants must accordingly prove that they constitute a localdescent group possessing the characteristics required by the Act.18. The name 'Wardaman' refers to a language-owning (and not to a languageusing)group. This is common in the region; see paras 41 and 42 of the Jawoynreport. The language is generally associated with a particular, identifiable territoryand the owners of the language are primarily affiliated to that territory.Recruitment to the Wardaman language group is said to be by descent: that is,the language-owning group consists of persons who are themselves members ofthe group. This is accurately described as membership by filiation; see ProfessorSansom's observations on terminology at pp. 2-6 of Exhibit 85A.19. The claimants contend, however, that the Wardaman language group is notthe relevant local descent group for present purposes. They contend that asubgroup of the Wardaman language group, consisting of themselves as certainof the descendants of one Joe Jamunji, constitutes the relevant local descentgroup for the purposes of the claim area. They may be styled as the Yubulyawunlocal descent group; they call themselves the 'Yubulyawun mob'. The senior malespokesman for this subgroup, though he is not a member himself, is Bill Harney.He is clearly a very knowledgeable man, in matters of country. He testified thatthere were seven subgroups of the Wardaman language group, each with its owndistinct traditional territory, located in places such as Willeroo, Delamere,Birrimba and the Dry River. As he explained it at pp.399:. . all got different, like sharing, but all different country--like small country.This evidence was given in the presence of members of the claimant subgroup,and of members of the other six Wardaman subgroups, who concurred in it. Iam satisfied that, as opposed to the other subgroups of the Wardaman languagegroup, the claim area is the responsibility of the claimant subgroup, and thatthat subgroup is quite distinct from the other subgroups.20. According to the claimants not all of the descendants of Joe Jamunji aremembers of their subgroup. Some persons who would qualify under the descentprinciple, being certain of the children of female members Shirley and EvelynHarney, have chosen to 'follow father', that is, they have chosen to identifyPage 4

primarily with the traditional country of their fathers, elsewhere. They are notregarded as members of the subgroup. It follows that the controlling principle offiliation referred to earlier might be seen as a necessary but insufficientqualification for membership of the claimant subgroup in this claim; however,whether this is so depends on the viewpoint to be taken. From the viewpoint ofan individual only one of whose parents is a member of the subgroup, there is achoice whether to be a member; this is because the applicable descent principle,being cognatic, builds in that option. From the viewpoint of the subgroup itself,however, there is a presumption that a child, one of whose parents is a memberof the subgroup, is also thereby a member, although the child may ultimatelydisavow that birthright; see Professor Sansom's analysis in Exhibit 85A at pp.lO-12. Seen from the latter viewpoint of the subgroup, filiation is both a necessaryand sufficient qualification for membership. I think the latter viewpoint is to bepreferred, and the controlling principle for recruitment to the subgroup is filiation;see the general discussion by Mr Tiffin in Exhibit 97, pp.3-24.21. The statutory concept of a 'local descent group' in the Land Rights Act hasbeen discussed in many of the land claim reports. Its meaning has been graduallyextended; see, for example, paras 1 19-122 of the Jawoyn report, where a languagegroup was accepted as the relevant local descent group. The concept requiresthat recruitment to a claimant group be by a principle of descent deemed relevantby the claimants, while the members of the group must have ties to the claimarea, a specific and identifiable area of land. I consider that the principle offiliation relied on by the Yubulyawun claimants meets the necessary criteria.22. It may well be that the cognatic principle, allowing the tracing of descentthrough either mother or father, arose as part of the 'harshness of history'referred to in para. 159 of the Finniss River Land Claim report, as the numberof Aboriginals declined following contact with non-Aboriginals. This must haveresulted in a decline in the membership of traditional groups. The traditionalnorm for membership, the tracing of descent by patrifiliation, noted by Stannerin the 1930s, may have been modified by the forces of history to ensure thesurvival of the group. As Professor Sansom put it:The shift from patrifiliation to cognation has been occasioned by the subdueddesperation of a people concerned with group survival. (Exhibit 85A, p. 10)23. The evidence of the claimants that their country was Yubulyawun, and whothey 'followed' for that country, supported their contention as to the descentstructure of their subgroup. I am satisfied that the Yubulyawun subgroupconstitutes a local descent group within the meaning of the Land Rights Act.COMMON SPIRITUAL AFFILIATIONS TO SITES24. It is necessary for claimants to show that they have common spiritualaffiliations to sites ('buwarja') on their traditional country. That is, they mustshow that they possess, more or less equally, associations of a spiritual naturewith sites, in the sense that they share beliefs about the spiritual significance ofthose sites. See generally paras 149 and 150 of the Jawoyn report. The existenceof these affiliations is usually sought to be established by evidence of theclaimants visiting the land, of their behaviour in relation to the sites, and byevidence that they possess a body of knowledge about those sites. That knowledgeis often demonstrated by the singing of song cycles relating to the Dreamingsand their travels across the land; by body painting which represents the Dreaming;by dance; and by telling the stories of the Dreamings, which summarise themeaning of the song and dance.Page 5

25. The claimants contend that they share such a body of knowledge, theiraffiliations to the sites being spiritual in nature in that their knowledge is ofsacred or religious aspects of the sites.26. Some 66 sites relating to this claim appear on the site list, see Exhibits 92and 90. Others were referred to in evidence, as is common. The claimants gaveaccounts of the spiritual associations of many of these sites; clearly the seniormembers have a deep and extensive knowledge of the sites on their traditionalcountry, in terms of their mythic significance. It was obvious during the sitevisits that much of the landscape was seen as imbued with spiritual significance.Bill Harney's knowledge of landscape, and of the Dreamings and their travels,was thorough and encyclopaedic. For sites, see the fold-out map at back.27. The Aboriginal names of countless geographical features were given. ManyDreamings were referred to. For example, at Diskwirr (No. 129), south of theclaim area the story of Dubdubbai (the Grasshopper Dreaming) was given. TheSnake's journey from Wagiman country though Tjablawakaya (No. 168), Kaway(No. 102) and Yubulyawun (No. 104), where he left a secret song, was recounted.The Eaglehawk was also at Yubulyawun (No. 104) and at Wambanji (No. 126)on Innesvale pastoral lease; its encounter with the Turkey at Kunkunbuy wasgiven. The sites Kanmanmaliyn (No. 108) and Walawala (No. 180) were linkedto the 'Cheeky Yam' and the Jalmin (Grasshopper) Dreamings.28. In their evidence the claimants agreed with Bill Harney's assertion that they'looked after' the following sites on or in the vicinity of the claim area: Kaway(No. 102), Jimayn (No. 105) Warrikbang(No. 182) and Yunumburugu (No. 173).These sites were all associated with various Dreamings; it was said that theconsequence of their being damaged would be cataclysmic (see paras 41 and 42).29. Evidence was given that certain songs were specific to certain sites; some ofthese were sung in restricted session and the meanings of the songs and theassociated dance was explained. Evidence was given of the type of restrictionsapplicable to secret songs and ceremonies; these restrictions are observed by theclaimants.30. There was evidence of what may be done, and what may not be done, atvarious named sites, and of the restrictions on the physical approach to variousplaces where secret ceremonies are conducted. Again these restrictions are observedby all the claimants.31. There was detailed evidence from the claimants of special mortuary ritesand rituals following the death of a member; these were partly concerned withascertaining the cause of death and identifying the person responsible for it.32. Various rites required to be carried out by the claimants were describedand observed, relating to the proper approach to certain Dreaming places. Theseincluded calling out to the Dreaming and head-wetting. It was said that theDreamings understood only the Wardaman language and had to be addressed inthat language-'You talk to [the Dreaming] in that language and you are right'(transcript, p.416). Bill Harney explained (p.416):... if I didn't put that water on the head for you, you would have got sick. You gotto do that with the Dreaming water.33. There was evidence that the claimants sought to protect their sites fromincursions. They 'looked after' them by visiting them and they were required todo this because it was instilled in them when they 'went through the Law', andwere taught by their elders.34. The evidence was clear that the Dreamings attached to the sites mentioned,both on and in the vicinity of the claim area, were the responsibility of'all thePage 6

Yubulyawun mob'. I conclude from the evidence, the thrust of which I havesummarised above, that the members of the Yubulyawun subgroup havedemonstrated that they have common spiritual affiliations to sites on the claimarea and on their traditional country around it.PRIMARY SPIRITUAL RESPONSIBILITY FOR SITES ANDLAND35. Pursuant to s.3 (1) of the Land Rights Act the claimant local descent groupmust prove that the members' common spiritual affiliations are such that they'place the group under a primary spiritual responsibility' for the sites and fortheir land. This involves a qualitative assessment of their spiritual affiliations.The evidence usually adduced to seek to establish this responsibility is evidencethat the members of the group are exclusively or primarily accountable for theproper performance of ceremony and rituals in relation to the sites. Theceremonies celebrate and re-enact the journeys and activities of the Dreamingsin the land. Claimants usually testify that they discharge these functions, andshow or display how this is done. They also show that their responsibilities willcontinue to be discharged in the future by evidence that they educate the youngermembers in the spiritual significance of the landscape, and in their duties. Theevidence thus entails evidence of sites, of their spiritual significance, and of thesignificance of carrying out ceremonies in relation to the sites, for the purpose ofestablishing that the group is responsible for 'looking after' the sites and land,that their responsibility for doing so exceeds that of any other group, and is of aspiritual order.36. As was clear from the evidence bearing on the common spiritual affiliationsof the claimants to sites, a great deal of traditional knowledge of country andsites was in fact displayed by senior members of the claimant subgroup. Somesites are on the claim area and many more are on the claimants' adjoiningtraditional country; the sites are clearly of spiritual significance to the claimants,a number of whom have spent their lifetimes in the vicinity of the claim area.As in the Jawoyn claim (see paras 55-62 and 90-106 of that report) the evidencewas directed to establishing various aspects of the claimed primary spiritualresponsibility; it is convenient to deal with the claimants' teaching, custodial andprotective responsibilities in relation to sites and land.Teaching responsibilities37. It was clear from the evidence of the claimants, both men and women, thatthey had themselves been taught by their elders about the spiritual significanceof their traditional landscape and how they were to 'look after' it and protect itssites from damage. In turn, they were themselves engaged in their daily life inpassing on this type of knowledge and instruction to their children. I observedthis teaching in action during the course of the hearing.Custodial responsibilities38. The evidence was that at the sites on their traditional country the claimantspropitiate the Dreamings by speaking to them in the Wardaman language. Itbecame clear that considerable importance is placed on the claimants' ritual dutyto wet the heads of strangers to their country. The reasons were explained byPage 7

Bill Harney after a head-wetting ritual at Yungarrawun (No. 190) on MathisonCreek south of the claim area (transcript, p.80):When you travelling past or something like that, it's a Dreaming area and there's aspirit inside [the water]. When you driving past--or when human being walk past,he'll [that is, the Dreaming will] bring you back. You got to water your head. Thatmean he [the Dreaming] stay here; you can keep going. . . . if you don't put wateron your head, you'll be back here again. You'll be dreaming or something, alright.The evidence was that only members of the Yubulyawun subgroup who hadthemselves been introduced to the Dreaming could perform this head-wettingritual in Yubulyawan country. I agree with Professor Sansom's view (Exhibit85A, p.16) that:performance of the rite [of head-wetting] is in itself the expression of primaryspiritual responsibility ... Only custodians ... have the right to bring othersto a Dreaming site once they have themselves been introduced to the mystery.39. The evidence also showed that the claimants were under a duty to clean,clear and protect the sites and that they visited sites for the purpose of carryingout those obligations, sometimes by 'footwalking'.Protective responsibilities40. These responsibilities are directed to protecting others from malign effectswhich could flow from their lack of knowledge of Yubulyawun country as theypassed through it.41. The evidence was that the claimants believe that widespread disaster wouldresult if their sites were damaged. I have encountered these beliefs elsewhere;see, for example, paras 60-61 of the Jawoyn report. Thus in relation toYumanyektpa (No. 191), a site on the amalgamated claim area associated withthe White Cockatoo Dreaming, Bill Harney testified (transcript p.414):. . if they damage it, all the leaves on every tree will be just dried out . . . eatenout...finished . . . There will be no leaves left.42. If the site Mardulinba (No. 112), on the Flora River south of the claimarea and associated with the Flock Pigeon Dreaming (Kwadjukkwadjuk), wasdamaged, it was said:--. . we might get one big flood--might wash the whole area, creek and all. He mightcome black water.Similarly there would be a disastrous flood if the site Warrikbang (No. 182)in the claim area was damaged; if Kaway (No. 102) was damaged (p. 414):. . it would [be] like a cyclone had destroyed the whole area--all around.The claimants saw it as their responsibility to prevent any damage to theirsites, so as to avoid the occurrence of these catastrophes.43. They also discharged their protective responsibilities by carrying outpropitiatory rituals at certain sites. They had also approached the Sacred SitesAuthority to register three of their sites, so as to better protect them fromdamage.Conclusions44. The setting up of the outstation near Jarang was to enable all the aboveaspects of the spiritual responsibilities of the claimants to be better carried out.Those responsibilities are directed both to land and sites, and were commonlydescribed in terms of'looking after' them. There was no suggestion that anygroup other than the Yubulyawun was charged with or exercised spiritualresponsibilities for the sites and the claim area. I am satisfied on the evidencePage 8

that the claimants have shown that they have primary spiritual responsibility forthe sites and for the claim area; in short, they are 'the boss for the place'.ENTITLEMENT TO FORAGE45. To qualify as 'traditional Aboriginal owners' in terms of the Land RightsAct, the claimants must show that their subgroup is entitled by Aboriginaltradition to forage as of right over the claim area. As is usual, the main evidenceadduced to establish this right was evidence of the practice of foraging; that is,hunting and the gathering of food and materials for day-to-day materialsustenance. The claimants both asserted the right, as stemming from theirforebears, and demonstrated that they exercise it. Their evidence was that theydid not seek permission from anyone before hunting or fishing on their traditionalcountry 'because [it's] my country there'. On the other hand if any otherAboriginals wished to forage on Yubulyawun country 'they got to ask [permission]first'. It is common throughout Aboriginal Australia that those who have theright to forage also have a right to be asked first by others who wish to do so.46. It was clear from the evidence and demonstrations of foraging, that thesenior claimants had a very extensive knowledge of the edible food, bushmedicines and natural resources of the country in the vicinity of the claim area.Many Aboriginal names of plants were given and their use and preparation wasdescribed and demonstrated. It is clear that the claimants are very experiencedin the use of bush resources for the various purposes of living, hunting andceremony. I am satisfied from the evidence that they are entitled by Aboriginaltradition to forage as of right over the claim area.'TRADITIONAL ABORIGINAL OWNERS': CONCLUSIONS47. It is convenient to gather together at this point the conclusions I havereached on whether the claimant Yubulyawun subgroup has established spiritualaffiliations and responsibilities and traditional entitlement all of which are requiredif its members are to fall within the category of'traditional Aboriginal owners'as defined in s.3 (I) of the Land Rights Act.48. It is clear that there are sites within the claim area, and many more in thetraditional country of the Yubulyawun subgroup adjacent to the claim area,which are of spiritual significance to the claimants. It is clear that the membersof the Yubulyawun subgroup share in common spiritual affiliations to those sites,and these are such as to place the subgroup as a whole under a primary spiritualresponsibility for those sites and for the claim area. It is also clear that themembers of the subgroup are all traditionally entitled to forage as of right overthe whole of the claim area, subject to the usual traditional restraints in relationto sites. I conclude that as a local descent group, the claimants fall within thedefinition of'traditional Aboriginal owners' in the Land Rights Act, in relationto the claim area.STRENGTH OF TRADITIONAL ATTACHMENT49. In making this report I am required by s.50(3) of the Land Rights Act to'have regard to the strength or otherwise of the traditional attachment by theclaimants to the land claimed'. This factor is to be taken into account and givenweight as a central element in making a recommendation. Various parts of theevidence which I have already discussed bear upon the strength of traditionalattachment: the claimants' detailed knowledge of their country and its naturalPage 9

esources; their performance of ceremonies (see, for example, restricted Exhibit10) and the continuing strength of their ceremonial life; their observance ofritual practices; their maintenance to some extent of a traditional lifestyle, valuesand practices (see, for example, the mortuary rites referred to in para.31, andthe fact that they use a subsection system to identify kin); their practice oftransmitting knowledge of the sites and land to younger members; their continuingto live close to their traditional country and their visiting and use of that land,including foraging. In the end, though, the evaluation of the strength of attachmentof claimants to a claim area must be largely a subjective matter; it is intangible.50. It is clear to me from observing the claimants during the hearing, particularlyon the site tours, and listening to their impressive evidence on the mattersmentioned in para. 49, that they have a concern for their country and a strongtraditional attachment to the claim area as part of their traditional country.LIVING ON TRADITIONAL COUNTRY51. Section 50 (4) of the Land Rights Act requires that certain guiding principlesbe observed by the Commissioner in carrying out his functions. In practice, thisrequirement is particularly important at the stage of considering therecommendation which should be made. The guiding principles are thatAboriginals already 'living at a place' on their traditional country within theclaim area, and those who are not living there but 'desire to live at such a place'should, where practicable, be enabled 'to acquire secure occupancy' of that place.While 'living' does not connote continual physical occupation of a place, it doesconnote more than a casual stay. The 'desire to live' must be understood in thelight of the nature of the country concerned, the access to it, and the availabilitythere of what in modern times are the ordinary necessities of life, including suchmatters as education and health facilities.52 None of the claimants live within the claim area. Access to much of theclaim area except by 'footwalking' is very limited, due to its rough topography.Bill Harney and the claimants have camped from time to time near the junctionof the Flora and Katherine Rivers. Access to the outstation near Jarang, fromthe south, has been improved; but this is south of the claim area.53. Most of the claimants live in Katherine during the week, to utilise theeducational and other facilities there. They spend weekends and school holidaysat Jarang. Their intention is to secure an excision of the outstation area at Jarangand to use the claim area as a 'main base'. Bill Harney had plans to run somestock in the extreme southern part of the claim area, near Kaway.54. The application of the principles in s. 50(4) of the Land Rights Act doesnot, on the facts of the case, assist very much in reaching a recommendation inrelation to this claim area.FINDINGS55. I find, as a result of the hearing into this claim and in accordance withs. 50(1) of the Land Rights Act that:1. The claim area is unalienated Crown land.2. There are Aboriginals who, as members of the Yubulyawun local descentgroup, are the traditional Aboriginal owners of the claim area; see para.48.3. The names of those traditional owners are as set out in para.56 below.Page 10

4. The traditional owners named in para.56 are each entitled by Aboriginaltradition to the use or occupation of the whole of the claim area, althoughthat entitlement may be qualified as to place, time, circumstance, purposeor permission.56. The three genealogies of the members of the Yubulyawun local descentgroup who presented as claimants were checked; they are set out in Exhibit 55B.The names of the traditional Aboriginal owners of the claim area are set out inExhibit 2B as amended by Exhibit llB as follows:Abejiji, QueenieAnthony, FrancineAtwood, BradleyBarramawu (Roderick Harney)Bedgood, FreddieBedgood, WarrenDumawuk (Christine)Esther, StevenEsther, CarolineGimiyn, DaisyGin-gina, LilyHarney, ChristineHarney, EvelynHarney, JonathonHarney, NeilHarney, RobertHarney, ShannonHarney, ShirleyHarney, Hadrick (Yerringjang bowa)Imalngmalinya (Peewee Harney)Jinamagurra (Jimmy Nelson)Kingungari (Johnson Harney)Kumbitjbita (Kathie)Mabalanggin (Claydon)Mandarbirri (Skeeta Harney)Miliyera (Sarah Harney)Mugarri, CarryMugarri, KarenMurrimal, BasilMurrimal, LenaMurrimal, MichaelMurrimal, PaulineNgalalal (Patrick Nelson)Nganimulun (Evelyn Esther)Norman, SeanTriciaUmbulayt (Bradley)Wandayiman (Shirley Harney)Waterloo, DavidWaterloo, EdnaWaterloo, RonaldPage 11

Waterloo, WilfredWinmara (Shirley)Yibulbulba (Billy Harney)Yidumduma (Bill Harney)RECOMMENDATIONS57. The Commissioner's function under s.50(l)(a)(ii) of the Land Rights Act,once a finding has been made that there are traditional Aboriginal owners of theclaim area, is to decide whether to recommend to the Minister the grant of theclaim area or part of it. Matters for comment under s.50 (3) of the Act are notmatters to be taken into account by the Commissioner in reaching that decision;they are matters for the consideration of the Minister when deciding whetherthere should be a grant.58. I recommend,(a) in the light of the finding at para. 55 that there are traditional Aboriginalowners of the claim area;(b) having regard to the conclusion at para. 50 that the traditional ownershave a strong traditional attachment to the claim area; and(c) in view of the fact that those owners are each entitled by tradition to theuse and occupation of the whole of the claim area,that the claim area described in para. 2 be granted to a single Land Trust forthe benefit of the Aboriginals entitled by tradition to its use or occupation,identified in para. 56, whether or not their traditional entitlement is qualified asto place, time, circumstance, purpose or permission. See Appendix 11 at p.158.MATTER FOR COMMENT59. I turn next to the matters on which I am required to comment, unders.50 (3) (a)-(d) of the Land Rights Act.(a) Number of Aboriginals advantaged60. Comment on this aspect focuses on Aboriginals with traditional interests inthe claim area; it is impossible to specify with precision the number of suchAboriginals who would be advantaged if the claim were acceded to. The traditionalowners listed in para. 56, numbering 45, have strong traditional attachments tothe claim area and would all certainly be advantaged by a grant. There are othersrelated by marriage, such as Bill and Trixie Harney, who would also beadvantaged. Other members of the Wardaman language group may indirectlybenefit by a grant of the claim area, since clearly the kin ties within the languagegroup are strong; their number has not been determined, however, and theirtraditional attachment to the claim area has not been demonstrated. The evidenceshows that the traditional owners have ceremonial links with the Wagiman,Nanggumerri, Jawoyn, Ngaringman and Jaminjung groups; a grant wouldindirectly advantage these groups in the performance of ceremonies. In all, thenumber of Aboriginals advantaged to some degree would number in the hundreds.61. I consider that not less than 48 Aboriginals with traditional attachments tothe claim area would be advantaged if a grant were made.Page 12

(b) Nature and extent of the advantage to Aboriginals62. If the claim were acceded to in whole or in part the main advantage whichwould flow is that the traditional owners would thereby gain a secure title topart of their traditional country, with the right to use and occupy that land.Whether they would be able to obtain any economic benefit from the use of theclaim area is speculative; there is no firm evidence to suggest that this is likelyto occur. They would however be enabled to carry out their traditional ceremonieson their own land without fear of hindrance. The teaching of the youngerclaimants of traditional ways and beliefs would be assisted, thus enabling themto identify with their traditional country. The control of access to the claim areawould enable the traditional owners better to protect the sites on it.(c) Detriment63. I am required to comment on the detriment to persons or communities,including other Aboriginal groups which might result if the claim were accededto in whole or in part. It may first be said that there is no evidence that anydetriment would result to other Aboriginal groups, should the claim area begranted; such evidence as there is, points the other way.(1) The Daly River64. The Conservation Commission in Exhibit 15A at pp.139 and 145-147notes that the Daly River and its banks are popular areas for public recreation.The Katherine-Daly River is probably the best known river system in theTerritory; it is one of the great river systems of Australia, carrying much thesame flow as the Murray River. It is accurately, though inadequately, describedat p. 146 of Exhibit 15A as:. . a continually changing scene of rapids, long slow-moving reaches, junctions withlesser tributaries and magnificent flora. The levee banks abound with wildlife and theriver itself is plentifully stocked with a large variety of fish.65. For the purposes of this claim the legitimate public interest in having secureaccess to the river system for canoeing, boating, fishing and camping will be metby the declaration under s.ll (1) of the Aboriginal Land Act of the banks andbed of the river, to which the claimants have agreed. This will also meet theconcern expressed by the Tourist Commission at pp. 136 of Exhibit 15A, as tothe need for access by visitors. Consideration should be given to a similardeclaration for that stretch of the Flora River within the claim area.(2) Grazing Licence No. 207466. The land in the general region of the claim area has been used for pastoralpurposes since the 1880s. Dorisvale Station, which adjoins the claim area to thewest, was originally part of the large Bradshaw/Coolibah holdings. It was takenup as a separate pastoral lease in 1969, and transferred to the present lessees in1982. Grazing Licence No.2074 over the whole of the claim area, as well as landto the west of Dorisvale, was first issued to the lessees of Dorisvale in 1979. Itis said that the lessees of Dorisvale need to use substantial parts of this GrazingLicence, due to the nature of the country on Dorisvale and the type of cattleoperation carried out thereon; see the evidence of J.K. Harrower, one of thelessees, at pp.2212-4 of the transcript. The eastern boundary fencing of Dorisvaleextends south close to the claim area, as shown on the map in Appendix 3. Iconsider that the loss of Grazing Licence No. 2074 over the claim area wouldcause the lessees of Dorisvale Station to suffer detriment. It may be noted that aGrazing Licence under s.107 of the Crown Lands Act is not a secure form oftenure; it does not extend for longer than one year at a time. If there were aPage 13

grant of the claim area, it would be open to the lessee of Dorisvale to seek tonegotiate a licence under s.19(4A) of the Land Rights Act; any licence feepayable under such an agreement which exceeded the rent payable for a GrazingLicence, would constitute a detriment to the pastoral lessee. Compensation forimprovements on land held under a Grazing Licence is provided for in certaincircumstances by s.107A of the Crown Lands Act. [But see para. 143 of Volume3 of this Report.]EFFECT OF GRANT ON PATTERNS OF LAND USAGE67. Under s.50 (3) (c) of the Land Rights Act, I am required to comment, in areasonably broad way, on the effect which acceding to the claim in whole or inpart would have on the existing or proposed patterns of land usage in the region.Roads and borrow pit68. Since the Land Rights Act excludes from its operation any road over whichthe public has a right of way, it is the practice to identify those roads wherepossible, so that appropriate exclusions from any grant may be made. TheNorthern Territory Government contends that certain roads are public roads.They are shown on the map Appendix 4 and numbered 11, 12, 13 and 18.69. The roads numbered II and 13 constitute that part of the Dorisvale Roadwhich runs north of the claim area. This is a formed and gravelled road, givingaccess to various pastoral properties, and also said to be utilised as a means ofaccess from the Victoria River to the Stuart Highway. It is regularly maintainedby the Government within the claim area and it is clearly a public road. A roadreserve of 100 metres in width is required for the maintenance and drainage ofthis road. See para. 150 of Volume 3 of this Report.70. Road No.18 is an access track some 2.5 kilometres long from the DorisvaleRoad to the Daly River. It is used by the Power and Water Authority as itsmeans of access to maintain river gauging station No.814067. Evidence that thetrack is used by officers for this purpose does not constitute use by the public;accordingly, I consider that road No.18 is not a public road. The continued useof the gauging station is protected by s.14 (I) of the Land Rights Act, and accessto it is protected by s.70. See para. 153 of Volume 3 of this Report.71. Item No.12 on Appendix 4 is a gravel pit, with its associated access road.The pit has been used as the source of gravel for the construction and maintenanceof roads in the claim area and is required for their future maintenance andupgrading. The Northern Territory Government seeks a reserve some 300 metresby 300 metres in extent for the gravel pit, together with a reserve 50 metres widealong the access road to the pit; these figures are reasonable. I consider that theaccess road to the pit is not a public road. The Government's continuedoccupation and use of the gravel pit, in the event of a grant, is protected bys.14(1) of the Land Rights Act. I consider that this use extends to the futureremoval of gravel, as that use falls within the expresssion '...theCrown . . . is entitled to continue that . . . use', in s.14(1). Access to the pitis protected by s.70 of the Act. See para. 151 of Volume 3 of this Report.Proposals for farm development in the claim area72. The Northern Territory Government adduced a very considerable amountof evidence about a major project involving the development of farming in theDouglas/Daly area, with the essential object of creating a regional agriculturalPage 14

industry. It is a project clearly of the greatest potential importance to theeconomic future of the Territory. The project was said to be proceeding in twostages. The first stage, due to be evaluated shortly, involved the establishment ofa small number of farms run as commercial enterprises but with substantialGovernment support. If the result of the evaluation of the first stage provedfavourable, the second stage would involve the development of many more farmson other lands, including lands presently under claim in the Upper Daly LandClaim. This planning envisaged the possibility that ten farms could be developedon and in the vicinity of the claim area; see the map at Exhibit 42.73. The Northern Territory Government sought a comment to the effect that agrant of the claim area and of the other lands under claim in the Upper DalyLand Claim would necessarily so seriously reduce the number of farms whichcould be developed, that the second stage of the scheme probably would not inany event proceed, as the envisaged regional agricultural industry would not thenbe of the size necessary to enable the required economies of scale to flow.74. I consider that it is open to comment on the Government's proposals, onthe basis that they involve a proposed pattern of land usage in the region.However, the claim area is only one part of the land under claim affected bythat proposal and the comments must relate to the whole. I will comment indetail on the Government's proposal in Volume 3 of this report. For presentpurposes, it is sufficient to comment that the claim area could be affected by theproject, but only if stage two proceeds; and whether stage two will proceed, ispresently a matter for speculation. In the event that it does proceed, there is noreason to suppose that Aboriginal owners of the claim area would be less willingthan owners of other areas affected by the project, to take part in it.SUMMARY OF FINDINGS, RECOMMENDATIONS ANDCOMMENTS75. The findings, recommendations and comments in this report may besummarised as follows:(1) The land claimed, shown hatched black in Appendix 2, is unalienatedCrown land.(2) The claimants constitute the Yubulyawun subgroup of the Wardamanlanguage group.(3) The land claimed includes the bed and banks of that part of the DalyRiver which constitutes one boundary; these are open to claim (para.(4) The land claimed lies within the traditional country of the Yubulyawunsubgroup.(5) The Yubulyawun subgroup is a local descent group and is the relevantlocal descent group for the claim area (paras 19, 23). Recruitment tothe subgroup is by filiation (para. 20).(6) The claimants have common spiritual affiliations to sites on the claimarea and on their traditional country around it (para. 34).(7) As the Yubulyawun subgroup, the claimants have primary spiritualresponsibility for their sites and the claim area (para. 44).(8) The claimants are entitled by Aboriginal tradition to forage as of rightover the whole of the claim area (para. 46).Page 15

(9) The members of the Yubulyawun subgroup are the traditional Aboriginalowners of the claim area, within the meaning of the Land Rights Act(para. 48).(10) The claimants have a strong traditional attachment to the claim area,as part of their traditional country (para. 50).(11) The guiding principles in s. 50(4) of the Land Rights Act do not, onthe facts, assist very much in reaching a recommendation as to the claimarea (para. 54).(12) I recommend that there be a grant of the whole of the claim area to asingle Land Trust for the benefit of the Aboriginals entitled by traditionto its use or occupation, whether or not their traditional entitlement isqualified as to place, time, circumstance, purpose or permission(para. 58).(13) Not less than 48 Aboriginals with traditional attachments to the claimarea would be advantaged by a grant (para. 61).(14) The main advantage to Aboriginals from a grant is that the traditionalowners would gain a secure title to part of their traditional country(para. 62).(15) There is no evidence that other Aboriginal groups would suffer detriment,if the claim were acceded to (para. 63).(16) The public interest in having secure access to the Daly River will bemet by a declaration under s. 11 (1) of the Aboriginal Land Act (para.65).(17) The loss of Grazing Licence No. 2074 over the claim area, would causedetriment to the lessees of Dorisvale Station; but now see para. 143,p.98.(18) Roads north of the claim area numbered II and 13 on the mapAppendix 4, are roads over which the public has a right of way (para.69).(19) Road No. 18 on Appendix 4 is not a public road but its use for thepurpose of access to a river gauging station is protected by the Act(para. 70).(20) The continued occupation and use of the gravel pit shown as No. 12 onAppendix 4 is protected by s. 14 (1) of the Land Rights Act (para. 71).(21) Whether the claim area will be affected by the project for thedevelopment of farming in the region is presently speculative. If it is,there is no reason to suppose that the Aboriginal owners would be lesswilling than others to participate.Darwin10 August 1989LEGAL REPRESENTATIVESMr D.A. Parsons and Mr R. Blowes, for the claimantsMr T. Pauling Q.C., for the Attorney-General of the Northern Territory, and theGovernment of the Northern TerritoryMr P. McNab, for the Commonwealth of AustraliaMr P. Tiffin, counsel assisting the CommissionerPage 16

CONSULTANT ANTHROPOLOGISTProfessor B. SansomLIST OF WITNESSES(a) ClaimantsJonathon HarneyDaisy GimiynQueenie AbejijiShirley HarneyLily Gin-ginaPeewee HarneySkeeta Harney(b) Other witnessesBill HarneyLarry DollyBen AwunLeonard PewingClaude ManbullooBleucher JulyNida WarrambudTarpotBlair Graham WoodJames John WitherspoonDr Anne Margaret McGrathWilliam Anthony ThomasWilliam Ramsey HearnDr Athol Kennedy ChaseMichael Anthony ReedDr Betty MeehanAndrew D'Arcy MacQueenGeorge Cashman DunneAnthony Douglas Lockhart HooperLeslie John Teelelan Roy McBeanJohn Kenneth HarrowerKenneth William GrattanLIST OF EXHIBITS1. Claim Book.1A. Corrections to Claim Book.2A. Genealogies of claimants. (See also Exhibit 55B).2B. Amendments to Exhibit 2A.2C. Amendments to Exhibit 2A.2D. Amendments to Exhibit 2A.3. List of claimantsPage 17

4. Historical submission: 'Aborigines and Colonialism in the Upper DalyBasin region'; by Ann McGrath.4A. Errata in Exhibit 4.5. Site list.5A. Amendments to Exhibit 5.6. Site map.7. Affidavit of compliance with Practice Directions; J. A. Thomson, 13September 1983.10. RESTRICTED: transcript of men's evidence.10A. Map showing road to outstation near Jarang.10B. Map showing track from outstation near Jarang, to near junction ofFlora and Katherine rivers.11A. Amendments to Exhibit 2A.11B. Amendments to Exhibit 2A.12. Message of 31 August 1984 from Laurie Griffords to Bill Harney.15A. Northern Territory Government supplementary documents.15B. Map showing alleged public roads north of claim area.15C. Amendments to Exhibit 15A.18. Map showing arable land on claim area.20. Report on the Land Units of the Dorisvale area; by B.G. Wood, 1978.22A. Large map showing suitable agricultural land.22B. Overlay of Exhibit 22A, showing claim area.23. Table showing distribution of arable land within mapped areas, DalyRiver.25. Map of area surveyed for agriculture, within Daly River Basin; scale1:50 000; by B.G. Wood.28. Letter, Stan Brown to Reg Wilson, 22 August 1979.32. Map W84/1069, showing claim area in relation to the Daly RiverBasin.33. Map W83/3124 showing location of river gauging station and accesstrack north of claim area.34. Record of Legislative Assembly debate, May 1980, on 'Agriculturaland Horticultural development in the Northern Territory'.35. Review by Martin Corporation Ltd of the Northern TerritoryAgricultural Development and Marketing Authority; 22 May 1984.36. A.D.M.A. Annual Report, 1980/81.37. A.D.M.A. Annual Report and Financial Statements, 1981/82.38. A.D.M.A. Annual Report and Financial Statements, 1982/83.39. Statement by the Hen. Roger Steele, Minister for Primary Production,14 August 1982:.'The future of agricultural development in theNorthern Territory'.40. Northern Territory Parliamentary record, 21-30 August 1984;Ministerial statement on Exhibit 35.Page 18

41. (Lapidge Report). Investigation into production, handling andmarketing of horticultural and agricultural produce--NorthernTerritory; interim report on agricultural produce. September 1979.42. Map C.P. 4595, showing location of A.D.M.A. farms, and possiblefuture development of farms in claim area, and other claim areas.43. The A.D.M.A. scheme in the Northern Territory; by B.J. Cameronand A.D.L. Hooper.44., 44A.Report by Working Party, January 1980, on Exhibit 41.45. RESTRICTED: Pages of A.D.M.A. Minute Book, 26 March 1981.46. A.D.M.A. Business Paper, 3 December 1981 on the Upper Daly LandClaim.48. RESTRICTED: A.D.M.A. Minute book pp.4, 8, 101, 109, 141 and143.50. Curriculum vitae, William Ramsey Hearn.51. Extract from evidence of W.R. Hearn in hearing of Jawoyn land claim.53. History of pastoral holdings in vicinity of claim area; by T.R. Lawler.55B. Claimants' genealogies (replacing Exhibit 2A).56. Curriculum vitae, Dr Athol Chase.58A. RESTRICTED: Transcript of men's evidence.58B. RESTRICTED: Transcript of women's evidence.60. Curriculum vitae, Dr Betty Meehan.63. List of informants on mapping trips.64. B.A.E. Report.64A. Draft B.A.E. Report.65. Role of A.D.M.A.; Cameron 1982.66. Minutes: Availability of Agricultural land.67. Forster Committee Report.70. Map of previous Dorisvale boundaries.71. Minutes of Meeting Land Board, 10 June 1981.72. Bundle of Documents: N.L.C. E.L.A. Guidelines, Procedures, clarifyingnotes, letter.73. Minutes of Co-ordinating Committee Meeting 26 March 1982 atA.D.M.A. Boardroom.82. Press release 23 March 1982: Minister for Primary Production.84. Submission by Conservation Commission and Tourist Commission.85A. Report by Professor B. Sansom, February 1985.85B. Errata to Exhibit 85A.86. Conspectus of previous comments and statements on s. 50(3)(c).87. Submissions, N.T. Government, proposed land usage; 15 March 1985.89. Pastoral leases adjacent to claim area.90. Amended site map.91. Submission on roads north of claim area.92. Amended site list.97. Submission by Counsel assisting the Commissioner.99A. Submission: 'The Onus of Proof and 'The Evidentiary Burden'.998. Submission on detriment and the Northern Territory Government.99c. Submission on s.50 (3) (c) and (b) of the Land Rights Act.100. Claimants reply to submissions in Exhibit 87.10lA. Submission on strength of attachment.Page 19

101B. Reply to Exhibit 100; N.T. Government, 14 April 1985.101C. Submission: 'Mr. Parsons' 12 points'; N.T. Government, 14 April1985.102A. Conspectus of previous comments and statements on s.50 (3) (c) of theLand Rights Act; claimants' submission, 27 March 1985.103. Reply to Northern Territory Government submission on strength ofattachment (Exhibit 101A).Page 20

APPENDIX 1: Locality of the three areas claimedPage 21

Yubulyawun Claim AreaAPPENDIX 2: The land claimed by the Yubulyawun subgroup of the WardamanPage 22

APPENDIX 3: Dorisvale fencing in vicinity of claim area.Source: Plan at Annexure 5 in Exhibit 104.Page 23

APPENDIX 4: Roads Nos. 11, 12, 13 and 18 north of the claim area.Source: Exhibit 15B.Page 24

VOLUME 2The Labarganyayn ClaimPage 25

Page 26

HISTORY OF THE LABARGANYAYN CLAIM1. I noted in Volume 1 of this Report dealing with the Yubulyawun claim thatthree separate land claims by distinct claimant groups were ultimatelyamalgamated in April 1983 and presented together as the Upper Daly LandClaim. Despite this formal amalgamation, each claim is to a distinct area of land(though claimants have overlapping interests in some common boundary areas),each claimant group belongs to a different language group, the basis of eachclaim is quite distinct, and generally the claimants presented their evidenceseparately. Each claim is independent of the others. In these respects theamalgamated claim is somewhat different to previous land claims.2. In this Volume I deal with the claim by one of the three claimant groups,the Labarganyayn subgroup of the language group called 'Nanggumerri'; thisname has been spelled in many different ways over the years. Originally, inFebruary 1979, these Labarganyayn claimants had lodged a joint claim with theWagiman linguistic group to the land described as Area 1 in the plan at AppendixI, comprising an area of some 5000 square kilometres. As finally presented theLabarganyayn claim was to a discrete parcel of land in the extreme north-westof Area 1, as hachured on the plan at Appendix 1, though part of that area--the'box-up' area--is acknowledged by the claimants to be jointly owned withWagiman claimants; see para. 4.3. The hearing of the amalgamated claim commenced at the Claravale Crossingon the Daly River on 17 October 1983. The whole of the area under claim wasflown over on 19 October. As to the Labarganyayn claim, certain sites near theFish River and in the vicinity of the claim area were visited by vehicle on 25and 26 October and some claimants' evidence was taken on site. (Numbersattached to the site names which appear in this Report locate those sites asnumbered on map at page 157; a brief description of the sites is set out inExhibit 92.) These sites were: Labarganyayn (143) at Gugulugin (the upper FishRiver); a site the name of which may not be published (240); Angamungi (226);Damuy-wulak (155); Kugarakirim (235); and Miwangikirim (239). Within orbordering the northern part of the claim area the following sites were visited:Kalay (287), Biningkruk (228), Jululbiya (234), Bupa (230) and Jarung (170). On27 October claimants' evidence was taken at Labarganyayn (143); they alsodemonstrated hunting and fishing in the area and a traditional funeral ceremonytook place. On 27 and 28 August 1984 evidence was taken from men and womenin separate restricted sessions at Wulk Witbi near the Daly River Mission,together with evidence relating to mortuary ceremonies, the structure andcomposition of the Nanggumerri language group, and elements of traditional life.Various adult claimants gave their life histories and some of their childrendemonstrated their knowledge of foraging, sang traditional songs, and indicatedtheir traditional beliefs. The claimants' evidence concluded with some furtherevidence of Dreamings, country and genealogies at Darwin on 21 January 1985.Dr McGrath, a historian, gave general evidence on 18 January 1985 focusingmainly on historical material she had advanced in Exhibit 4. Dr Chase and DrMeehan, the anthropologists who had prepared the Claim Book for theamalgamated claim, gave expert evidence from 21 to 24 January relating to allthree claims. Counsel completed their oral submissions in March 1985; writtenmaterials were later received.Page 27

STATUS OF THE LABARGANYAYN CLAIM AREA4. The claimants contend that the area they claim lies in the southern part oftheir traditional country, which extends north to the Daly River, east to thevicinity of the Fish River and west to the headwaters of Muldiva Creek,encompassing much of what was formerly the Fish River Pastoral Lease (seeAppendix 1). That Pastoral Lease was formerly part of Tipperary cattle station;see Appendix 2. The claim area is bounded on the north by alienated land (thesouthern boundary of the former Fish River Pastoral Lease), on the west by DalyRiver Aboriginal Land (the former Daly River Aboriginal Reserve) and on theeast and south by unalienated Crown land which the claimants acknowledge tobe Wagiman traditional country. The boundary with the Wagiman countryextends from the vicinity of Kalay (287) (Collah Waterhole) in the north-east, toNgun Ngun(139) (McKinnons Yard) in the south-west, and Larrdulmaya (145)(Dead Mans Pocket) on Laurie Creek in the west; see Appendix 1. Kartinyan isthe Wagiman name for Ngun Ngun (139). This boundary is said to consist of a'box-up' area; that is, the claimants say they share with the Wagiman traditionalrights and responsibilities towards the above three sites within their sharedboundary. Accordingly, the eastern and southern boundaries of the claim areacannot properly be defined by a simple line upon a map; it is conceived as aswathe of country some 20 kilometres wide, shown on Appendix 1 as a 'box-up'5. The map at Appendix 1 shows that part of the Fish River Forestry Reserve,N.T. Portion 1101, lies within the claim area. This is Reserve No.1269; itcomprises some 160 square kilometres and is unalienated Crown land reservedin 1969 under s.103 of the Crown Lands Act (N.T.) for forestry and reafforestationpurposes. It seems that in fact protection of the area as a Forest Reserve is nolonger considered necessary by the Conservation Commission; see Exhibit 15A,p.144. As a matter of law the reservation of land for public purposes under aTerritory Act does not affect its status as land open to claim under the AboriginalLand Rights (Northern Territory] Act (herein the Land Rights Act); see the HighCourt decision in R v Kearney; ex parte Japanangka (1983-84) 158 CLR 39.6. The claim area is in the western part of lands over which the owners ofDorisvale Pastoral Lease hold Grazing Licence No. 2074 on an annual basis; thatdoes not affect its status as 'unalienated Crown land' under s. 50 of the LandRights Act--see R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR327.7. In the result, it is clear that the whole of the claim area is unalienated Crownland within the meaning of the Land Rights Act and accordingly open to claimunder that Act.THE CLAIM AREA: LOCATION AND TOPOGRAPHY8. The claim area lies within the tropical monsoon belt. It is drained to thenorth by the Fish River; to the south by Dee Creek and the Fitzmaurice River;and to the south-west by Laurie Creek. It is remote, very rugged and vehicularaccess is difficult. West of Kalay (287) lies a broken tableland of sandstoneleading to the Wingate Mountains; there are numerous gorges and ravines in theheadwaters of the Fish River and Laurie Creek which rise in this area. In generalthe landscape comprises rough, broken tableland with precipitous edges, andsome pockets along the watercourses.9. Vehicular access is by rough track south from the Daly River via the OollooCrossing, or by the Beef Road via the Beeboom Crossing, to Kalay (287) (CollahPage 28

Waterhole) in the north-east of the claim area. There is also an east-west trackacross the southern part of the claim area, which connects with the road to theeast leading through Innesvale and Dorisvale pastoral leases north to the ClaravaleCrossing of the Daly River; see generally Exhibits 15B and 69.HISTORY OF THE CLAIMANTS AND THE CLAIM AREA(a) The claim area10. Very few materials exist from which to assess the history of the generalregion of the claim area, and of the claimants. It is nevertheless essential to viewthe claimants against the historical background. Most of the available materialsare non-Aboriginal and relate to the Daly River north of the claim area, wherethe major permanent non-Aboriginal settlement in the vicinity took place, andto which the Aboriginals of the general region, including the claimants' forebears,gradually drifted.11. The year 1865 marks the first contact with non-Aboriginals, when Finnissdiscovered the Daly River. In 1866 McKinlay charted the river to the Crossingand was impressed with its agricultural potential. Exploration in this regionbecame more intensive from 1877, under pressure from pastoral interests. Acattle station was established and stocked by Fisher and Lyons on the Daly Riverin 1882, centred on the present Tipperary, but was abandoned by 1890. By 1881Ouston was attempting to grow sugar cane beside the Daly but this venture wastotally unsuccessful and abandoned in 1884. Copper was mined from 1882 nearWoolianna, at Wheal Danks; the murder by Aboriginals of miners there in 1884led to widespread punitive action in which many Aboriginals were killed.Unquestionably, Aboriginals then living a wholly bush existence in the regionwould have been affected by the lack of security these killings engendered. Theseand other incidents prompted the Government Resident, Mr J.L. Parsons, towrite perceptively to Adelaide in 1884:I fear unquiet times may be expected in connection with native tribes. The blacks arebeginning to realise that the white man, with his herds, and his fences, and hispreservation of water, is interfering with what they, properly enough, from their pointof view, regard as their natural rights. Their hunting grounds and game preserves arebeing disturbed, and their food supply both diminished and rendered uncertain. Theycan no longer, as they could a few years ago, travel from one lagoon to another, andbe certain that on arrival there would be flocks of wild fowl to be snared. Nor canthey, as of old, when they desired a repast of snakes, iguanas, or other reptiles, set fireto the first piece of well-grassed country they encounter. The stockholder uses thebillabong for his cattle, and wild fowl are scared away; he wants the grass for his cattleand very vigorously lets the blackfellows understand that it is at their peril they putthe firestick to it. Naturally out of these conditions conflict arises and will continue.The natives will resist the intrusion of whites and regard themselves as robbed of theirinheritance; they will set the grass alight when they are so minded, and, if hungry orby way of reprisal, they will spear cattle when they think they are out of range of therifle. How to deal equitably with these Aboriginals--how, while facilitating the settlementand stocking of the country by Europeans, at the same time so atone for what is anundoubted loss of food supply in consequence to the natives, is a problem much easierto state than to solve. That settlement and stocking must and will go on is certain--that outrages will be committed by both sides is probable; but even those who do notclaim to be philanthropists are not satisfied with the contemplation that the blacks areto be improved [sic] off the face of the earth.It appears to me that reserves but imperfectly meet the case--though large reservesought, I think, to be proclaimed--because native life is essentially nomadic, andPage 29

ecause the imperious demands of hunger take him where the water-lily roots, yams,and game are to be found. Serious and unhappy conflicts can only be avoided by astrong sense of justice and consideration for the natives on the part of the Europeans,and probably not even then.The collapse of copper prices in 1889 led to the winding down of the miningoperations at the Daly, though copper was later mined in the area from 1901 to1907. Three Jesuit missions were established at different times after 1886 in thevicinity of the present Daly River settlement; crops were cultivated but the yieldswere poor. The last Mission was abandoned in 1899 after a flood, due mainly tothe lack of receptivity of the Aboriginals to the Mission's message. While theywere there, the Missions served as a focal point for many Aboriginal groups.Remoteness was a problem for the Daly River farmers; thus in 1888 theGovernment Resident reported:At the Daly Mr Brown had a fine crop of maize, but the cost of chartering a launchto bring it to market is of course too heavy a charge to be borne, and for the presenthe has abandoned cultivation.12. The period of early contact, 1870-1890, was the 'boom' period for theNorthern Territory; it was not matched again, as far as non-Aboriginal activitieswere concerned, until after World War II. Non-Aboriginal activities in the DalyRiver generally failed between 1890 and 1910, a period of almost completestagnation in the Territory as a whole. Progress thereafter was slow; the 1888population peak of non-Aboriginals in the Territory was not exceeded until 1940.Bradshaw's Run (now Coolibah Pastoral Lease) in the south had been taken upin 1894 and by 1898 it extended from Victoria River to Kalay (Collah Waterhole)(287). About 1900 Byrne settled at Tipperary; his sons ran the property until1959 when several pastoral leases were consolidated into Tipperary Station; seethe map at Appendix 2.13. During the period of early contact the Daly River was very much a frontier;many of the non-Aboriginals who came there were strongly individualistic persons,with a predilection for a gamble and a distaste for the settled life. Laissez-fairewas the rule and there was a real absence of Government control and concernfor the welfare of Aboriginals; no full-time Protector of Aboriginals was appointeduntil 1908, and the first welfare legislation was the Aborigines Act 1910. Theirlabour was regarded as a natural resource. The reaction of the Aboriginalinhabitants was as in some other frontier situations in Australia. They resistedthe incursions both by violence and by non-co-operation until they learned, asProfessor A.P. Elkin put it, that:clash means defeat and death. They have nowhere else to go, for they are tiedby 'spiritual bonds to their . . . country. They must therefore accept the changedposition . . . and adapt themselves to it according to the circumstances. (1951)53 American Anthropologist 167-9.This resulted in what Elkin described as 'intelligent parasitism' on the part ofthe Aboriginals. They came into the non-Aboriginal settlements, stations or farmsto secure the goods they desired, particularly tobacco, and many gradually stayedthere as it provided a more secure life. Nevertheless, particularly when employedon cattle stations in their own country, they managed to incorporate their culturalpursuits with their work; that is, they were able to look after their country andits sites. In the real sense of the word, pastoral leases in the Territory remained'bush'. Sporadic violence between Aboriginals and non-aboriginals continued.The Aboriginal population in the vicinity of the Daly had decreased markedlysince contact; the Government in the 19th century believed the major cause wasopium and undoubtedly this factor, a variety of introduced diseases and, inPage 30

general, what might be called the harshness of history, had a deleterious effecton their health, fertility and numbers.14. After 1911 the Commonwealth tried to encourage non-Aboriginal settlementin the Territory by small farmers holding their own land under perpetualagricultural lease. Thus in 1913 it was recorded:'Twenty-six such farms have already been surveyed on the Daly River, varying in sizefrom 190 to 620 acres. These farms have been advertised for selection, and it isintended to arrange for transport facilities at low rates by means of Governmentsteamers the Government will also provide fencing, building materials,implements, and stock at cost price, and on long terms, or will advance the money fortheir purchase (Commonwealth Year Book No. 6).This policy started a new phase in non-Aboriginal activity on the Daly River.About 1912 the Government started an experimental farm on the Daly but dueto problems with non-Aboriginal labour it was not a success. Some 40 settlerswere encouraged to take up blocks; by 1915 some 100 non-Aboriginals werefarming or mining on the Daly River. Most of the farms failed and by 1925most of the farmers were gone; in 1935 there were 10 farms and 14 non-Aboriginals on the Daly, all farming peanuts. This crop had been successfullygrown there since 1915; the acreage had gradually increased and Aboriginalsworked on the farms.15. In the 1920s about 20 non-Aboriginals were prospecting for and mining tinat Collah Tinfield near Kalay (287); see Exhibit 69. Some Aboriginals wereemployed there.16. Professor Stanner carried out anthropological field work on the Daly Riverover a period of six months in 1932. He provides the most perceptive andreliable information on the claimants' forebears' life of nearly 60 years ago; hisreport is in (1933) 3 Oceania 377. He spent four weeks with the Nanggumerri,though he did not go to the Fish River. He found that at the time there weresome 18 non-Aboriginal peanut farmers on the Daly River; the Jesuit Mission,the school, the Government farm and mining had long been abandoned. In hislater book White Man Got No Dreaming (1979) at p. 79 Stanner said that mostof the farmers were rough, uneducated and dirt poor and 'they and the Aborigineswere mutually dependent, desperately so, and no love was lost on either side'.At this time most of the Aboriginals were working on particular farms; theirpayment was largely in kind, mainly tobacco and food.17. Stanner described the country between the Daly and Victoria Rivers (inwhich the claim area lies) as one of the 'least known parts of Australia'. Herecorded the Nanggumerri as one of eight tribes 'now represented by groups ofany size in and around the [Daly River] settlement'. He observed that each tribe'retains a high degree of solidarity'. He stated that:The [Nanggumerri] now live on the Daly but properly belong to the countryjust north of the Fitzmaurice.[The Nanggumerri] belong historically to country to the north of the Nangor country[which he located on the north bank of the Fitzmaurice River] and perhaps from sixtyto one hundred miles south to Southwest of the Daly River. In greatly depletednumbers, however, they live today with the remnants of the other tribes in the middlereaches of the Daly River. A great deal of their ceremonial and secret life, and theirsystems of belief, have disappearedPage 31

However in [1933] 4 Oceania 21 he stated:The [Nanggumerri] . . . have not suffered the same cultural shock [as the MalakMalak and Madngella] and retain their beliefs [that is, the religious background of life]to a much greater extent.Stanner considered that:Most tribes on the Daly River have been experiencing an acute and corrosive culturecontact for many years, some tribes at least since 1890 . . . Disintegration anddegeneration have long been active.At p. 80 of White Man Got No Dreaming he described the Daly River of 1932as:a barbarous frontier--more, a rotted frontier, with a smell of old failure,vice and decadence.In recording the life-story of Durmugam, a Nanggumerri, at pp. 81-82 he said:About the turn of the century the [Nanggumerri] had been made restless by tales ofthe wonders to be seen at the new goldmine at Fletcher's Gully, which lay about halfway to The Crossing. [This was a gold mine on Muldiva Creek once worked by PanQue, and later briefly in the 1930s; for its location see the map Exhibit 90.] In thisregion of many small tribes, the [Nanggumerri] were blocked from the Daly River, sothey went instead to Fletcher's Gully. Once there, they and the western [Wagiman]who accompanied them, never returned to their own country. Durmugam's father diedat the mine; how, he does not know. The mine failed and his mother and mother'sbrother took him on to the Daly; what new circumstances made this possible, so soonafter the earlier impasse, he cannot say.18. From about 1910 until the late 1960s Aboriginals were the main work forceon cattle stations in the Territory. The senior claimants' life histories reflect thishistorical fact. During World War II, however, many Aboriginals were requiredto live in Army settlements and were employed as a labour force by the Army.19. A Catholic Mission was re-established on the Daly in 1955 and began anew phase of life there, with mixed farming enterprises. The Mission runs aboarding school, and provides health services, education and religious instruction;it is the major institution in the area, and provides a large residential centre forAboriginals.(b) The claimants' account20. Most of the Labarganyayns live at Daly River Mission with the Malbiyans(see para. 28). Ten of the senior claimants, six men and four women, gave theirlife histories. What emerged most strikingly from these accounts was a verysimilar employment history and lifestyle pattern: they had always worked withinthe general region of the claim area, and maintained a continuing and lifelongcontact with their traditional country; from its commencement in 1955, theMission and its facilities clearly became important to them. A summary of theaccounts of the four oldest claimants will suffice as an illustration.21. Dolly Nimanyuk, now deceased, was born about 1929 at the old Fish Riveroutstation (Iwalyuman) on the Tipperary cattle station. She worked at theFletcher's Gully and Collah mines, on a peanut farm at Dorisvale, and for a yearat the Fish River outstation because it was 'too close to Labarganyayn'. Shewalked around her country. She spent much of her working life on Tipperarycattle station and at the Mission.22. Daisy Bell Nigarr was born about 1939 at Daly River, where her fatherworked with the Police. She recalled walking around Labarganyayn country as ayoung girl, with her parents and relatives, and being instructed in bush lore andhow to behave in relation to Dreamings. She worked at a Daly farm, and atPage 32

various times at the Mission, Adelaide River and Peppimenarti (located on theadjoining Daly River Aboriginal land).23. Long Harry Kilimiri was born about 1939 at Claravale cattle station. As achild he walked around Labarganyayn country with his family, learning bushcraft. He first worked on Tipperary and during the holidays--the 'walkabout' inthe Wet season--he spent his time in Labarganyayn country with his family.Later he worked as a stockman on Litchfield, Elizabeth Downs, again at Tipperary,and then at Oolloo cattle station, always spending his holidays in Labarganyayn.24. Patrick Karnini was born at Kugulugan east of Kalay about 1946. As a boyhe lived with his stepfather in the bush on the Fish River and the Daly and wastaught bush craft. When the Mission started in 1955 they went there to live. Heworked at various times on Tipperary, Elizabeth Downs, Litchfield and at theMission, as a stockman; he explained his reasons for these employment choicestersely:I didn't want to get away from my countrymen, that's all.From 1974 he worked at Peppimenarti.25. The map at Appendix 2 shows that these senior claimants spent most oftheir working lives in the vicinity of the claim area.(c) Conclusions26. In paras 11-13 of Volume 1 I gave an overview of the impact on Aboriginallife over the last 100 years of non-Aboriginal settlement in the region. Over alengthy period there had been very intensive though sometimes short-lived non-Aboriginal incursions, in a variety of activities and ways--mining, farming, cattlestations and Police and Government activities. In many of the new activities,and particularly on the cattle stations and the Daly farms, Aboriginals came toconstitute an important part of the labour force, though often enough theiremployment was of a casual nature and during the Wet season many went'walkabout'. To what amounted to an early, lengthy and intensive disruption totheir traditional life, they made adaptations which enabled them to preserve toa considerable degree their traditional lifestyle and values. It seems that sincethe 1930s there has been a revivifying of traditional Aboriginal life. The claimantshave throughout their lives remained in contact with their close relations andtheir traditional land, and lead an active ceremonial life.THE CLAIMANTS' CASE(a) The claimants as a local descent group27. To fall within the statutory definition of'traditional Aboriginal owners' ins. 3 (1) of the Land Rights Act, it is necessary for the claimants to prove thatthey constitute a 'local descent group' and possess in common certain spiritualaffiliations to sites on their traditional country which includes the claim area,and that they hold a traditional entitlement to forage as of right over that land.It is necessary therefore to examine the nature of the Labarganyayn group theyclaim to constitute; it is a subgroup of the Nanggumerri linguistic group.28. 'Nanggumerri' is the name of a language and a language-owning group, nota language-using group. It is common in this region that a language is associatedwith a particular territory, and the language-owners are affiliated to that territory.The Aboriginal people on the Daly River usually speak more than one language,but regard themselves as primarily affiliated to one language. Patrick Karniniand other senior claimants explained that in fact four separate groups own thePage 33

Nanggumerri language, each group being affiliated to a different part ofNanggumerri territory, each possessing its own Dreamings. His evidence may besummarised as follows:Location ofGroup Family Country Dreamings1. Papangalla Minjin South-west of Blanket lizardPalumpa2. Nurrdik Durmugam Between Emu Catfish, IronwoodPoint andBuldiva road3. Malbiyan Karitjpul, Moyle River Black bream,KamurryWater4. Labarganyayn (As described in Dingo, Ironwoodpara. 4)29. I accept this evidence. Its effect is that the group which owns theNanggumerri language is composed of a number of subgroups, including theclaimants' subgroup, each of which belongs to discrete parts of the Nanggumerriterritory. None of the other three subgroups have claimed to be traditionalowners of the claim area, though members of the Malbiyan and Nurrdik subgroupswere present at times during the inquiry into this claim as were members of theWagiman and Malak Malak groups; they had 'come to listen'. I accept theaccount by Dr Chase and Dr Meehan that the subgroups are described in theNanggumerri language as Derikidi, meaning 'country-sharing kin', and arecommonly referred to by physical features within their particular country. Thusthe claimants' group is also known as the 'Fish River group', because theircountry is located in the upper reaches of that river, extending in the west to theheadwaters of Muldiva Creek in the Fletcher's Gully area.30. The claimants contend that their subgroup of the Nanggumerri linguisticgroup, constituted by themselves as descendants of one Kitjuliyn by the principleof filiation, is the local descent group relevant for the purposes of the claim areaas far as the Land Rights Act is concerned. They call themselves the 'Labarganyaynmob', after one of the principal sites (No. 143) in their traditional country. Theyclaim that as Labarganyayn they share common spiritual affiliations to siteslocated within the claim area and in their adjoining traditional country; and theyassert that those affiliations are such as to place their group under a primaryspiritual responsibility for those sites and for the claim area (subject toresponsibilities within the boundary area which they share jointly with theWagiman). It can be seen that in this respect the basis of their claim is similarto that of the Yubulyawun claim discussed in Volume I. As Dr Chase and DrMeehan put it, their claim is that:They own both ngata ngayinimbi derde ("country belonging to us from father") andderde ala ngayinimbi ("country belonging to us from mother") and form the group ofderikidi ("country-sharing kin") from the one country (derde). (Exhibit 1, p. 23).31. The first question is whether a group so structured falls within the statutoryconcept of'local descent group' in the Land Rights Act. That expression hasbeen frequently discussed in the Reports on land claims, and its applicationgradually extended beyond the patrilineal clan. In the Daly River (Malak Malak)claim a language-owning group was accepted as the relevant local descent group;Page 34

see paras. 172-177 of the Report. As Toohey J put it in para. 161 of the Reporton the Finniss River land claim:a local descent group is a collection of people related by some principle ofdescent, possessing ties to land, who may be recruited, to use Professor Sansom'sexpression, on a principle of descent deemed relevant by the claimants.32. I adopt that approach. The first question to which it gives rise is whetherthe members of the Labarganyayn group are recruited to it on a principle ofdescent. I turn to the evidence on that aspect.33. Various senior claimants testified as to the basis of their group's structure.Most of them said that they were Labarganyayn, because their father had beenLabarganyayn. Some male claimants said that similarly their children would beLabarganyayn because they (the fathers) were Labarganyayn. One female claimantsaid that her adopted child, whose father had died, was Labarganyayn becauseshe (the mother) was Labarganyayn, while her other daughter was alsoLabarganyayn as she had brought that daughter up--she had 'grown up out ofmy money'. Another female claimant said that her adopted children wereLabarganyayn because she was Labarganyayn, the reason being that they had notlived with their father for a long time. On the other hand, one female claimant,married to a man from a different linguistic group, said that their children werenot Labarganyayn as they 'followed their father'.34. Before dealing with this evidence I note that I consider that the concept ofadoption is embraced by the concept of affiliation, on the basis that 'descent' inthe Land Rights Act is not limited to biological descent but means sociallyrecognised descent. As Professor Sansom put it:Filiation is . . . the consequence of the recognition of parenthood attributed to achild-bearer or to the husband of a child-bearer or to an adopting mother or father.Whether filiated to a parent either (as we say) "by birth" or by adoption, an affiliatedchild is counted the descendant of that parent. (Exhibit 85C, p. 4).35. I accept from the claimants' evidence that the basis of recruitment to theLabarganyayn group is filiation; that is, a person is a Labarganyayn if he/she hasa direct link to either parent who is Labarganyayn. Such a basis connotesacceptance of a cognatic principle of descent, and so appears to present theoffspring with a choice in the matter of claiming rights and duties; that is, he/she may choose to follow father, or to follow mother. It may well be that in theremote past, the accepted principle of descent in this region was purely patrilineal;if that were once the case, I consider that Professor Sansom has advanced thelikely explanation for the change to the present cognatic principle:The shift from patrifiliation to cognation has been occasioned by the subdueddesperation of a people concerned with group survival in circumstances ofdepopulation, the goal is group survival. (Exhibit 85C, p. 4):It is obvious that the cognatic principle permits much greater membership of agroup than membership by patrifiliation.36. The evidence is that all the claimant members are directly affiliated toeither Labarganyayn fathers or mothers; but it is clear that not all persons soaffiliated are Labarganyayn claimants. This raises the question whether theprinciple of descent put forward is a sufficient determinant of group membership.Again, I consider that Professor Sansom's answer is correct. The composition ofthe Labarganyayn group should be looked at from the viewpoint of a member ofthat group, which is that there is a presumption that the offspring of aLabarganyayn parent should or will be Labarganyayn. If any such offspring laterin fact chooses to become a member of the group of the non-Labarganyaynspouse of a Labarganyayn parent, that is really a matter for the spouse's group.Page 35

From the viewpoint of the Labarganyayn group the principle of descent whichgoverns recruitment to their group is filiation, associated with a presumptionthat any child of a Labarganyayn will and should become Labarganyayn, whetherby matrifiliation, or patrifiliation or both. On this approach it is unnecessary towait to see how a particular claimant-offspring actualises his or her choice, sincehe/she is presumed to be Labarganyayn. Those who are eliminated frommembership of the Labarganyayn group are those who have disavowed thatmembership. Adopting this approach, filiation is both a necessary and sufficientqualification for membership of the Labarganyayn group.37. The requirement of the Land Rights Act that the group be 'local' does notmean that its members must reside on their traditional country. The requirementserves to define the group in the sense that not only must it be recruited on aprinciple of descent, it must also have a particular relationship with the claimarea, such that it may fairly be termed to be 'local'.38. I consider that the principle of filiation relied on by the Labarganyaynclaimants meets the criteria of the Act; I am satisfied from the evidence that theclaimants constituted by this principle as the Labarganyayn group form a localdescent group for the purposes of the Act.(b) Common spiritual affiliations to sites39. It is clear that in traditional Aboriginal life land is perceived primarily as areligious phenomenon; its topography is believed to exist because of the activitiesof certain creative powers, the Dreamings. The Act reflects this conception. Theclaimants are required to prove that they have 'common spiritual affiliations' tosites on their traditional country of which the claim area forms part. In substance,they must show that all the members of the Labarganya)in group share beliefs asto the spiritual significance of those sites; in that process, practical allowancemust be made for youth, the varying opportunities of individuals to acquireknowledge of sites and country, and so on. In practice, evidence of theseaffiliations is usually given on behalf of the group by its senior and knowledgeablemembers, the acquisition of knowledge being something gradually attained bygroup members over a long period of time.40. Claimants usually seek to establish those affiliations by giving evidence thatthey visit their traditional country to care for it, and by showing they know thesignificance of sites and of the activities of Dreamings associated with sites ontheir country. The possession of this body of knowledge is often demonstratedby the performance of certain rites at sites, the observance of certain behaviourpatterns when approaching or leaving sites, the singing of song cycles said torecount the activities of Dreamings, the display of body paint designs linked tothe Dreamings, the relating of the Dreamings' activities and how the site wascreated. The Labarganyayn claimants assert that they share such a body ofknowledge, which establishes their spiritual affiliations to their sites.41. It became clear that in fact the claimants' evidence that they possessed thisbody of knowledge was subject to a high degree of reservation. That is to say,much of the knowledge of sites and Dreamings which I am now satisfied theypossess has not in fact been revealed. This reticence is wholly consistent withtraditional Aboriginal law which particularly in the Daly River has always been'strong law' and forbids the revealing of such information to other than proper,initiated, countrymen. For example, Stanner noted that in 1932 he found it verydifficult to obtain information from the Nanggumerri about their initiation rites:All such knowledge is jealously guarded from the uninitiated, from other tribesmenand from whites.Page 36

42. The possession of knowledge of this type and restrictions on access to it byothers, lie at the root of the power-structure of Aboriginal society.43. The claimants expanded however in considerable detail on the meaning andsignificance of the head-wetting rite (ngamyupikak babayubu) which was repeatedas different sites were approached on the site tour. It was explained that headwettingserves to introduce a newcomer to the Dreaming at the site; it otherwisemight harm that person or vent its fury in other ways on the region. PatrickKarnini explained:you get your water on the head. You right. You free. You can go anywhere--place like this. The same with we fellows. We done it before, you know. . . . Whenyou get that water on your head you'll never get sick when you come into a place likethis [Damuy-wulak (155)1 . . . spirits will still remember you any time if you getthere.The claimants said that only those Labarganyayn who have themselves beenintroduced in this manner may introduce persons to Dreamings at their sites.They are the custodians of the Dreamings and other persons should obtain anintroduction of this type from them.44. Their evidence is that the Dreamings at their sites 'hear' only theNanggumerri language spoken by the Labarganyayns. This does not apply in the'box-up' area. When visiting sites, claimants called out in the Nanggumerrilanguage, explaining that they were letting the Dreaming:know for all the people and for we take that new man in.Otherwise, they said,'the new man might get sick'. Again, this calling out wassomething only the Labarganyayn could do. Daisy Bell Nigarr explained that thepurpose was also to:tell them old people . . . let them know we bringing all the white peoplein to look at that high Dreaming.45. The evidence was that the Labarganyayn group was 'boss' for the sites onLabarganyayn country, and were obliged to look after their country by visiting itregularly 'to have a look that nothing happen'.46. The claimants also gave evidence about the significance of various sites.Kalay (287) (Collah Waterhole) is a large waterhole some 200 metres inside theclaim area; see Appendix 1. This was clearly a very important site; it wasassociated with the Red Ochre, Sore and Dog Dreamings. The claimants told theassociated stories of the Green Plum (Wungulbak) and of Agarikanimbi, theBlack-Nosed Snake. Kugarakirim (235) was said to be associated with the RedOchre Dreaming and Miwangikirim (239) with the Wild Carrot Dreaming.Jululbiya (234), a 'bad place' because 'you get sore everywhere if you enter it',was said to be associated with Wirritwirrit, the Parrot Dreaming. Bupa (230)was said to be associated with the Agaru (Rock Kangaroo) Dreaming, and thesong is Burratjong; the story relating to that site was told. The long story relatingto the travels of the Mirritjarra (Old Blind Man) Dreaming and its creativeactivities in relation to many sites, was also told; in the result the Good Eye atDamuy-yubu (231):him been stop to look after Labarganyayn.47. The senior claimants testified that the Labarganyayns had a duty to lookafter sites on Labarganyayn country. They are required to check on sites to seethat they have not been disturbed, and to clear and clean them. This requiresvisits, and there was ample evidence that senior claimants have visited sites onand in the vicinity of the claim area over the years for this purpose.Page 37

48. Various claimants gave evidence at various sites of the pattern of behaviourwhich they considered was required to be observed at the sites. For example,Daisy Bell Nigarr explained at Damuy-wulak (155) that trees cannot be brokenthere 'otherwise you're going to get blind there'.49. I conclude from the evidence the nature of which I have summarised abovethat the claimants have demonstrated that as members of the Labarganyaynsubgroup they have common affiliations of a spiritual order to sites on the claimarea and to their traditional country around it.(c) Primary spiritual responsibility for sites and land50. It is necessary for the claimants to prove that the spiritual affiliations theyhold in common are such as to place the Labarganyayn group under a primaryspiritual responsibility for the sites and their land.51. The evidence usually adduced to establish this responsibility is directed toshowing that the group is exclusively or primarily responsible for the continuedproper performance of ceremonies and rites in relation to sites. These ceremoniescelebrate the activities of the Dreamings associated with sites. Claimants displaytheir knowledge of the ceremonies. They also show that the group has a continuingresponsibility, by demonstrating that they are passing on to.younger generationsthe necessary knowledge and instructing them in their duties. They also exercisetheir responsibilities by the care and maintenance of sites.52. I mentioned earlier the strong reservations of the claimants in revealing indetail matters knowledge of which is restricted by Aboriginal law to initiatedpersons, under strong sanctions. The same reticence existed in relation to thedetails of ceremonial life; they did not sing the songs, or display the paint, orgive the secret words. But some information was given. I consider that Dr Chaseis nevertheless correct in his view that the senior claimants possess a great dealof secret restricted ceremonial knowledge; see Restricted Exhibit 58A, pp. 27-30.53. In restricted session (Restricted Exhibit 58A) six of the senior male claimantstogether with the senior men of some other groups with whom they share aceremonial life, spoke of the 'outside' aspects of ceremonies. They described theceremonial exchange of objects between many groups and over long distances.They recounted details of food restrictions imposed prior to the circumcision ofyoung Labarganyayn boys, named the songs sung at that time', and said theyknew the dances. The evidence was that the Labarganyayn took part in ceremonieswith other groups: the Naggikurrungu, Maraminingi, Malbiyan, Papangalla,Nurrdik, Ngamanbala, Donggaral, Malak Malak, Madngella, Mudbura andJaminjung. They considered that certain ceremonies should be conducted onLabarganyayn country but because 'we never had a place up here yet' theceremonies had been conducted at 'special places' at Peppimenarti, Palumpa,and close to the Mission. If the claimants obtained a grant of the claim area 'wemake a place there, a ceremony place'. The senior claimants referred to secretceremonies, knowledge of which was reserved to initiated men, which youngLabarganyayn men had to go through. The nature of this process was explainedas follows:It's a tough school but it makes them [the young men] understand the Aboriginallaw it's like a school, learning them to know the rules and theceremony and the land . . . [They learn] to behave themselves and thinking abouttheir own country every inch of this country they know by that ceremony.(Restricted Exhibit 58A, p. 8).54. The evidence was that in ceremonies in which they took part with othergroups, Labarganyayn songs could be sung by other persons only withPage 38

Labarganyayn permission. The 'Labarganyayn mob' owned the stories for theDreamings at their sites, and they all knew the 'outside' songs for their sites. Iconsider that there is sufficient evidence to infer that the Labarganyayn group'sparticipation in ceremonial life involves the celebration in ceremony of its owntraditional country.55. Evidence was given of songs which dealt with Labarganyayn country whichonly initiated men could sing. Similarly, in restricted session, senior womenclaimants said that they had secret women's ceremonies for Labarganyayn country,but were forbidden by Aboriginal law to give details of them. They said therewere songs, painting and dances involved.56. The claimants named various Dreamings associated with Labarganyaynplaces and their ceremonies: Angamungi (226) (Rainbow Serpent); Damuy-wulak(155) (Bad Eye); and Wangarrk (80) (Ant Bed). They explained that they had toperform the ceremonies because 'we got to keep our law'. They said that theywere not allowed to reveal secret songs, places and ceremonies; this was prohibitedby 'the old people who tell us when we were young'. Similarly, they had a dutyto teach their children in the bush, as they themselves had been taught about thesecret places. As Patrick Karnini put it:we will take them around, show them around. That's the only way you canlearn.'57. At Kalay (287) the head-wetting ritual was performed both by a seniorWagiman claimant and a senior Labarganyayn. Senior claimants from bothgroups explained that both are'boss for the place'; it is a 'company' place wherethey hold joint ceremonies. The Labarganyayns said that they were 'half andhalf there with the Wagiman. Daisy Bell Nigarr gave evidence that Larrdulmaya(145) (Dead Mans Pocket) was also a 'box-up' area for the Labarganyayn andWagiman.58. I noted earlier that the Labarganyayns regard themselves as obliged to lookafter their country and its sites. They recounted the sanctions which they believeda desecrator of their sites might face from the Dreamings: as to Damuy-wulak(155), blindness; as to Angamungi (226), drowning; and as to Biningkruk (228),swelling up. They also said that if anyone interfered with their sites 'he'll gettrouble . .. he'd probably get spear', and clearly enough they saw themselvesas carrying out this sanction. In relation to one site, Patrick Karnini thought itbest that 'we not allow any people to go there', and that perhaps the site shouldbe fenced.59. I consider that the available evidence clearly establishes that the claimantsregard themselves as under a spiritual responsibility towards both their traditionalcountry and the sites on it. Except in the 'box-up' boundary area in which theyshare that responsibility with the Wagiman, there was no suggestion that anyother group had or exercised any spiritual responsibilities for Labarganyayn sitesor the claim area. I am satisfied on the evidence that the claimants have primaryspiritual responsibility for the sites to which they referred in evidence and theclaim area other than in the 'box-up' boundary area, where primary responsibilityis shared with the Wagiman.ENTITLEMENT TO FORAGE60. It is a further requirement of the Act that the claimants show that theLabarganyayn group is entitled by Aboriginal tradition to forage as of right overthe claim area. The evidence normally adduced to establish this entitlement isthat claimants have actually engaged in foraging over the land during theirlifetimes, without seeking anyone's permission.Page 39

61. The claimants asserted that they were so entitled, and gave considerableevidence of foraging over the land. Patrick Karnini's father had planted the greatbaobab tree at Jarung (170); they explained that its nuts were edible. In andaround the claim area they identified bush tobacco (mujmuj) and explained howto prepare it for chewing. They dug out an edible root, mitjawuni. They explainedhow to obtain and apply a cream to treat sores, obtained from a medicine tree(yadinin). They said that at Lulunbunung, a range of hills west of Kalay (287)within their traditional country,'cheeky yam' and 'water yam' could be found.On a hunting/fishing expedition during the inquiry they caught many turtle,bream and flying foxes at the Fish River and located and dug out a large yam;they demonstrated how these were prepared and cooked in earth fires. Theynamed the natural resources of the country which they frequently obtained,including porcupine, sugarbag, goanna, wallaby and kangaroo.62. They asserted that they never sought permission from any other group toforage over their land, and contended that any other persons wishing to huntthere should first seek Labarganyayn permission to do so.63. They taught their children, as they themselves had been taught by theirown parents, how to hunt and to find bush tucker. As Patrick Karnini put it:When we hunting we will take them around, show them around. That's the only wayyou can learn.This teaching/learning process extended to spiritual matters.64. I am satisfied from the evidence and from the practical demonstrations thatthe claimants have an extensive knowledge of the fauna and flora of the claimarea and adjoining country. They forage freely over that country. It is clear thatby Aboriginal tradition they are entitled to forage as of right over the claim area.CONCLUSIONS ON TRADITIONAL ABORIGINALOWNERSHIP65. Conclusions as to whether the claimants have established that they are the'traditional Aboriginal owners' of the claim area in terms of s. 3 (1) of the Actmay now be stated.66. It is unnecessary to seek to determine the boundaries of the traditionalcountry of the Labarganyayn, though it is doubtful if it is as extensive as claimedin para.4; that description possibly incorporates some of the traditional lands ofother Nanggumerri subgroups. I am satisfied that the claim area is clearly withinLabarganyayn country as is the country adjoining it to the north and north-west.67. There are sites both within the claim area and in the adjoining traditionalcountry of the Labarganyayn group, which are of spiritual significance to theclaimants. They share common spiritual affiliations to those sites. Those affiliationsare such as to place the Labarganyayn group under primary spiritual responsibilityfor those sites and for the claim area. This is subject to the qualification that intheir 'box-up' boundary with the Wagiman, they admittedly share thatresponsibility with the Wagiman. The claimants are traditionally entitled toforage as of right over the claim area; a traditional entitlement of that typecarries restrictions in relation to foraging in the vicinity of sites. I conclude thatthe Labarganyayn group constitute the 'traditional Aboriginal owners' of theclaim area in terms of s. 3(1) of the Act; in the 'box-up' area they share thattraditional ownership with the Wagiman.Page 40

FINDINGS68. Flowing from the inquiry into this claim and the conclusions I have reached,in accordance with s. 50 (1) (a) of the Land Rights Act I find that:1. The claim area is unalienated Crown land.2. There are Aboriginals who, as members of the Labarganyayn local descentgroup, are the sole traditional Aboriginal owners of part of the claim area,being the area marked 'A' on Appendix I; in respect of the 'box-up' area inAppendix 1, they share that traditional ownership with the Wagiman localdescent group; see para. 67.3. The names of these Labarganyayn traditional owners are set out in subpara. 5below.4. The traditional owners named in subpara. 5 are each entitled by Aboriginaltradition to the use or occupation of the whole of the claim area, althoughthat entitlement may be qualified as to place, time, circumstance, purpose orpermission.5. The seven genealogies (Exhibit 55C) of the members of the Labarganyaynlocal descent group who presented as claimants have been checked and areconsidered to be correct. The names of the traditional Labarganyayn, Aboriginalowners of the claim area are as follows:Alindurru, LafeAngganmerr, GeraldineAngganmerr, SharonAtjambu, RayBalnga, EmmanuelCasey, BorjukDurmugam,ThomasJabunganigari, RoderickJamal, Mark CaseyJamal, RobertJipapa, AugustineKanderr, NellieKarnini, PatrickKenbi, MadelineKikirtin, Minnie BridgetKilimiri, Long HarryKundeng, JohnKunjarr, LenaKunjawalang, FrancisKutjiriyan, Jadda BernadetteMarranja, WilliamMinyinet, KathleenMiriwan, NadineMun-gun, GregoryNabrijen, JacquelineNanayn, LanaNerday, WendyNganmuying, DawnNigarr, Daisy BellNimit, ErrolPage 41

Nimit, TerryNyaramba, LorettaPaliyn, Kelly AnnPaliyn, PhillipineTilmarr, RodneyTjamulk, IgnatiusTjilnginin, BernadetteTjululuk, VioletWanjerr, OliviaWarrngi, PaulineYigarritpa, Angas BarneyYilimu, GraceSTRENGTH OF TRADITIONAL ATTACHMENT69. I turn to assess the strength of the claimants' traditional attachment to theclaim area. This is a central factor in deciding whether to recommend that theclaim area be granted. The assessment necessarily involves a large measure ofsubjectivity, but objective factors relevant to an attachment rooted in traditioninclude: continuity in the performance of ceremonies relating to sites; theobservance of ritual in relation to sites; the maintenance of a traditional socialsystem; the transmission to the younger group members of knowledge abouttraditional country, spiritual and material; regularly visiting the country andusing it for foraging purposes; the expression of a desire to be buried in traditionalcountry.70. The evidence discussed earlier relating to these factors, for the purpose ofdetermining spiritual affiliations and responsibilities, is also relevant to theclaimants' strength of traditional attachment.71. Senior claimants have regularly foraged over the land, particularly duringtheir 'holidays' from work. Both men and women lead an active ceremonial life,though details of it have not been revealed. I accept Elkins's view in a similarcontext that this:reticence and diffidence [is] an index of the value to them of what remainedof their culture. (1935) 6 Oceania 122.There was evidence that they maintained a traditional social system: this is seenin the evidence of the circumcision ceremonies for young Labarganyayn boys,and to some degree in the evidence of intermarriage between the subgroups. Forexample, Patrick Karnini's wife is a Ngamanbala from Nurrdik; however, littleevidence was given as to marriage patterns. The Claim Book (Exhibit I, p. 24)referred to a subsection system as a principle of social organisation, but theevidence did not advert to it. Parents teach their children in practical ways abouttheir traditional country.72. The claimants performed a mortuary ceremony (Ngumburrdurmurpuritz)at Labarganyayn (143) when a member of the group died. The purpose was to'put him back'. It involved some of the deceased's clothing being buried atLabarganyayn (143), his possessions being burned, the singing of songs (kirrga)and dance. Everybody present was 'smoked'; the ceremony is described attranscript pp. 264-275.73. The claimants explained that their Aboriginal names are the names of theirforebears; thus 'Kikirtin' is the name of Minnie's father's grandmother. ThosePage 42

claimants who lived at the Mission explained that they lived 'this side of thecamp, on top' because 'we all ready to go to Labarganyayn country'.74. Fourteen children gave evidence; many of them appeared to live at theMission. They described with gusto how they had learned bush craft from theirparents--how to get sugarbag from ant beds, how to catch turtles, how to digout porcupines, when to eat billygoat plums and so on--and explained that theywere all Labarganyayn.75. I conclude from the evidence and from my observations of the claimantsthat they have a strong traditional attachment to the claim area as part of theirtraditional country.DESIRE TO LIVE ON THE CLAIM AREA76. I turn next to the guiding principles in s. 50 (4) of the Act. Although thesemust be observed when the Commissioner is carrying out his functions underthe Act, they are of particular practical importance when considering whether agrant should be recommended.77. On the facts of the case only one of the two principles is applicable, sinceno claimant is living on the claim area. Many of them live at the Mission, andthat is not on their traditional country. The Act requires that if they desire tolive in the claim area, which is within their traditional country, they ought,where practicable, to be able to acquire secure occupancy of such a place.78. Many senior claimants indicated a desire to live on the land. Daisy BellNigarr said she would live at Labarganyayn 'because [the Mission] is not mycountry, my country back there'. Patrick Karnini, a stockman at Peppimenarti,said he might stay at Labarganyayn, and perhaps do some cattle work. Variousother of the senior men spoke to similar effect. The site Labarganyayn (143) isnot on the claim area, but the claimants were probably speaking generally andhad in mind the claim area.79. The claim area is remote, access is difficult, and there are no housing,medical, educational or communication facilities there. It is doubtful whetherthe claimants' desire to live there, which I accept as genuine, would occur inpractice unless some such facilities were available. I bear in mind the principleenshrined in s. 50 (4) of the Act, but on the facts of the case the application ofthe principle does not assist very much on the question of making arecommendation.RECOMMENDATIONS80. The finding having been made that there are traditional Aboriginal ownersof the claim area, the next question is to decide whether to recommend to theMinister the grant of the claim area or part of it. I do not take into accountwhen reaching that decision the matters for comment under s. 50 (3) of the Act;those are matters to be considered by the Minister when deciding whether agrant should be made. It is, I think, desirable that if a grant is made, two LandTrusts should be created, to take account of the fact that in the 'box-up' area,traditional ownership is shared by the Labarganyayn with the Wagiman, whereasin the remaining part of the claim area the Labarganyayn are the sole traditionalowners.81. I recommend,(a) in the light of the finding at para. 68 that there are traditional Aboriginalowners of the claim area;Page 43

(b) having regard to the conclusion at para. 75 that the traditional ownershave a strong traditional attachment to the claim area; and(c) in view of the fact that the traditional owners are all entitled bytradition to the use and occupation of the whole of the claim area,(1) that Area A of the claim area shown hachured in Appendix 1 be grantedto a single Land Trust for the benefit of the Aboriginals entitled bytradition to its use or occupation, identified in subpara. 5 of para. 68,whether or not their traditional entitlement is qualified as to place, time,circumstance, purpose or permission.(2) that the residue of the claim area shown as the 'box-up' area in AppendixI be granted to a separate Land Trust for the benefit of the Aboriginalsentitled by tradition to its use or occupation, being the Labarganyaynclaimants identified in subpara. 5 of para. 68 together with the Wagimanclaimants identified in Volume 3 of this Report, whether or not theirtraditional entitlement is qualified as to place, time, circumstance, purposeor permission. Appendix 11 at p.158 shows lands recommended for grant.MATTERS FOR COMMENT82. I am required to comment on the matters set out in s. 50 (3) (a)-(d) of theAct. I now turn to these matters.(a) Number of Aboriginals advantaged83. It is nearly always impossible to specify precisely the number of Aboriginalswith traditional interests in a claim area who would be advantaged if the claimwere acceded to in whole or in part. In this case it is likely that there would beseveral hundred in that category. There are 42 traditional owners listed inpara. 68 and they would certainly be advantaged. Members of the other threesubgroups of the Nanggumerri linguistic group would also be advantaged, sincethere are close links between the families. Eleven of the senior claimants saidthat if a grant were made 'other mobs'-they named nine of them--would cometo the claim area to visit them. All the groups with whom they have ceremoniallinks would be indirectly advantaged. The Wagiman claimants numbering some160 would also be advantaged. In the result it may be said that not less than200, and probably considerably more Aboriginals would be advantaged if theclaim were acceded to.(b) Nature and extent of the advantage to Aboriginals84. If the claim were acceded to the major advantage would flow to thetraditional owners who would thereby gain security of title to part of theirtraditional country. I do not consider it likely that any economic use could bemade of the claim area, but their right to use and occupy the land would enablethem to carry out ceremonies on their own land without problems and wouldprobably assist the younger claimants to identify more closely with their traditionalcountry. The claimants would be better able to protect sites on the claim areasince they could control access to those sites.(c) Detriment84A. No detriment to other Aboriginal groups would result if the claim wereacceded to.Page 44

(1) Grazing Licence No. 207485. I dealt with this subject at para. 66 of Volume 1. Dorisvale Station has hadthe benefit of Grazing Licence No. 2074 since 1979. Mr Harrower of Dorisvalewas aware of the existence of this claim before he completed the purchase ofDorisvale. Grazing Licence No. 2074 is in two segments, one east and one westof Dorisvale; see the map Exhibit 15B. The claim area lies on the westernboundary of the western segment of the Grazing Licence. The western segmentof the Grazing Licence is about 1000 square miles in area. Dorisvale is now avery small pastoral lease, occupying about 262 square miles, having been reducedfrom a former 1172 square miles.86. Mr Harrower considered that without the use of the Grazing Licence,Dorisvale Pastoral Lease was not viable as a cattle station. I am unable to assesshow accurate that assertion may be, in the absence of adequate detailed supportinginformation. It seems clear enough that the loss of a Grazing Licence used todepasture stock would cause Dorisvale interests to suffer detriment. If the GrazingLicence area is cleared of infected stock and could be used to run clean stockthen Dorisvale could carry more stock if it were able to retain the GrazingLicence. However, considerable fencing would be required within the GrazingLicence area. A Grazing Licence is renewable on an annual basis. To the extentthat if the claim area is granted Dorisvale would lose the opportunity to applyfor it as part of a Grazing Licence, the Station interests suffer detriment. Itwould be open for it to seek to negotiate a licence under s. 19(4A) of the Act,and to the extent that any licence fee exceeded the Government rent for aGrazing Licence, it would suffer detriment. But now see para. 143 on p.98.87. Mr Harrower pointed out that track No. 16 on Exhibit 15B, running eastwestthrough the southern part of the claim area, constitutes the only accesstrack to part of the Daly River Aboriginal Land. He stated that he had spentmoney on the track which he uses for contract mustering in that part of DalyRiver Aboriginal Land. It seems clear that road No.16 is not a public road, and,if a grant is made of the claim area, a permit to cross the claim area by the trackwould be required. This does not constitute detriment, in my view.(2) The Institution of Surveyors, Australia88. Mr R. W. Wilson on behalf of the Institution raised two matters ofdetriment. The first involved the continuing need for surveyors to have access toany official survey stations on the claim area. The need is clear but the right ofaccess is protected by s. 61 of the Licensed Surveyors Act which I consider iscapable of operating concurrently with the Land Rights Act.89. Mr Wilson also raised the question of the use by the public of historicaltracks, bridle paths and stock routes in the Territory. If particular historicaltracks or bridle paths are public roads and have not lost their character as such,they remain public roads. Each case would have to be examined on its facts. Theconcept advanced by Mr Wilson seemed to be something akin to McKaye'sAppalachian Footpath in the United States. This may be a very worthwhilematter; there is no reason why Aboriginal landowners should not be involved inany such project. The matter raised does not amount to detriment in relation tothis claim. See also para. 158 in Volume 3.Page 45

EFFECT OF GRANT ON PATTERNS OF LAND USAGE INREGION90. I am required by s. 50 (3) (c) of the Act to comment in a reasonably broadway on the effect of a grant upon the existing or proposed patterns of land usagein the region.(a) Roads91. It is the practice to identify public roads where possible, so that they maybe excluded from any grant. The only track through the claim area is No. 16 inExhibit 15B. The Government considers that it is not a public road; I agree.Government access by the track to any river gauging station is protected by s. 70of the Act. There is nothing to suggest that traditional owners would notcooperate in relation to access to Collah Tinfield for the purposes of historicalsurvey, documentation and conservation. See also para. 153 in Volume 3.(h) Other92. The only other aspect of land usage relates to Grazing Licence No. 2074. Ihave no information as to the use to which the licence is put, but it appears thatit cannot be utilised to run stock until it is cleared under the B.T.B. programme.SUMMARY OF FINDINGS, RECOMMENDATIONS ANDCOMMENTS93. The findings, recommendations and comments in this report may besummarised as follows:(I) The claimants constitute the Labarganyayn subgroup of the Nanggumerrilanguage group.(2) The claim area, shown hachured on the plan at Appendix 1, is unalienatedCrown land.(3) Part of the claim area is acknowledged by the claimants to be jointly ownedwith Wagiman claimants. This is shown in Appendix I as the 'box-up' area(para. 4).(4) The Labarganyayn subgroup is a local descent group (para.38). Recruitmentto the group is by filiation (para. 35).(5) The claimants have common spiritual affiliations to sites on the claim areaand on their traditional country adjoining (para. 49).(6) The claimants have primary spiritual responsibility for their sites and theclaim area other than in the 'box-up' boundary area, where primaryresponsibility is shared with the Wagiman (para. 59).(7) The Labarganyayn subgroup are entitled by Aboriginal tradition to forageas of right over the claim area (para. 64).(8) The members of the Labarganyayn subgroup are the traditional Aboriginalowners of the claim area within the meaning of the Land Rights Act; in the'box-up' area they share that traditional ownership with the Wagiman(para. 67).(9) The claimants have a strong traditional attachment to the claim area aspart of their traditional country (para. 75).(10) The principle enshrined in s. 50 (4) of the Land Rights Act does not, on thefacts of the case, assist very much in reaching a recommendation as to theclaim area (para. 79).Page 46

(11) The recommendations are:(a) that Area A of the claim area as shown on Appendix I be granted to asingle Land Trust for the benefit o the Aboriginals entitled by traditionto its use or occupation, identified in subpara. 5 of para. 68, whether ornot their traditional entitlement is qualified as to place, time,circumstance, purpose or permission;(b) that the part of the claim area shown as the 'box-up' area in Appendix1 be granted to a separate Land Trust for the benefit of the Aboriginalsentitled by tradition to its use or occupation, being the Labarganyaynclaimants identified in subpara. 5 of para. 68, together with the Wagimanclaimants identified in Volume 3 of the Report, whether or not theirtraditional entitlement is qualified as to place, time, circumstance,purpose or permission (para. 81). See map of lands at p.158.(12) Not less than 200 Aboriginals with traditional interests in the claim areawould be advantaged if the claim were acceded to (para. 83).(13) The main advantage to Aboriginals, Should a grant be made, is that thetraditional owners would gain security of title to part of their traditionalcountry with the benefits which flow from that (para. 84).(14) To the extent that in the event of a grant Dorisvale Station would lose theopportunity to apply annually for Grazing Licence No. 2074 over part ofthe claim area, it suffers detriment (para86). But see para. 143, p.98.(15) Track No. 16 shown on Exhibit 15B is not a public road and, if a grant ismade, a permit will be required to cross the claim area by that track. Inmy view, this does not constitute detriment (para. 87).(16) Right of access for surveyors to any official survey stations in the area isprotected by s.61 of the Licensed Surveyors Act which is capable ofoperating concurrently with the Land Rights Act (para. 88).Darwin8 February 1990LEGAL REPRESENTATIVESMr D.A. Parsons and Mr R. Blowes, for the claimantsMr T. Pauling Q.C., for the Attorney General of the Northern Territory, and theGovernment of the Northern TerritoryMr P. McNab, for the Commonwealth of AustraliaMr P. Tiffin, counsel assisting the CommissionerCONSULTANT ANTHROPOLOGISTProfessor B. SansomLIST OF WITNESSESCLAIMANTSAdultsJabunganigari, RoderickKarnini, PatrickKikirtin, Minnie BridgetPage 47Angganmerr, GeraldineDurmungam. ThomasKutjiriyan, Jadda Bernadette

Kilimiri, Long HarryKunjawalang, FrancisMarranja, WilliamMinyinet, KathleenNigarr, Daisy BellNimanyuk, Dolly (deceased)Tjululuk, VioletYigarritpa, Angas BarneyNabrijen, JacquelineNyaramba, LorettaWanjerr, OliviaOTHER WITNESSESChase, Dr A.K.Harrower, J.K.Huddleston, DollyHuddleston, GeorgeLiddy, DonaldMcGrath, Dr A.M.Meehan, Dr B.Wilson, HarryWilson, R.W.LIST OF EXHIBITS RELEVANT TO THE LABARGANYAYNCLAIM1. Claim Book for the amalgamated Upper Daly Land Claim, by Dr A.Chase and Dr B. Meehan; 1983.1A. List of nine corrections to Exhibit 1; 1983.2A. List of claimants in amalgamated claim, including Labarganyayn(Nanggumerri) claimants, and their genealogies; 1983 (see Exhibit55C).4. Historical submission: 'Aborigines and Colonialism in the Upper DalyBasin region', by Dr A. McGrath.4A. List of 11 corrections to Exhibit 4.5. List of 219 sites in the amalgamated claim (see also Exhibit 92).5A. List of five sites in Exhibit 1 not located on Exhibit 6, and 30corrections to Exhibit 5.6. Map locating sites listed in Exhibit 5 (see also Exhibit 90).7. Affidavit of compliance with Practice Directions by J.A. Thomson;13 September 1983.9. List of 13 corrections to Labarganyayn claimants listed in Exhibit 2A;1984.13. Pages 44-69 of transcript of videotape of Wagiman evidence; 1984.14. Map of sites referred to in Exhibit 13.15A. Northern Territory Government supplementary documents.Page 48

15B. Map showing track No.16 within the claim area.15C. Amendments to Exhibit 15A.33. Map W83/3124 showing location of river gauging station 812001 andbore No.8220, and access track, within claim area.53. History of pastoral holdings in vicinity of claim area; T.R. Lawler.55C. List of claimants, and their genealogies, replacing Exhibit 2A; 1985.56. Curriculum vitae, Dr A. Chase.58A. RESTRICTED: transcripts of males claimants' evidence, 26 October1983 and 27 August 1984.58B. RESTRICTED: transcript of women’s evidence, 27 August 1984 (sevenpages).60. Curriculum vitae, Dr B. Meehan.63. List of Labarganyayn information mapping trips by Dr Chase andDr Meehan, August-September 1981; October 1983.68. Map of proposed Wambungie Outstation development on CoolibahPastoral Lease; January, 1985.69. Wingate Mountains topographical survey map, sheet 5069, scale1:100 000, showing western part of Grazing Licence No.2074 (DorisvalePastoral Lease).70. Map showing former boundaries of Dorisvale Pastoral Lease, includingclaim area71. Extract from Minutes of meeting of Land Board, 10 June 1981,concerning Dorisvale Pastoral Lease.80. Map showing historic tracks within and in vicinity of claim area, asat 1940.81. Four photographs by Mr R.W. Wilson, taken c. 1970-71 of ring ofand C83. Map showing the location of stations on which various seniorstones; for location, see cross on map Exhibit 69.claimants had been mainly employed85A. Report by Professor B. Sansom February 1985.85B. Corrections to Exhibit 85A.86. Conspectus of previous comments and statements on s. 50 (3)(c) ofthe Land Rights Act.90. Amended sites map (replacing Exhibit 6).91. Submissions by Northern Territory Government as to public roads inExhibit 15B, including reference to track No.16 in claim area.92 Ammended list of 288 sites in the amalgamated claim, replacingExhibit 596. Submissions by counsel for the claimants; March 1985.traditional land claim.95. Partial index to transcript and of exhibits.97. Submissions by counsel assisting the Commissioner: Part I--the98. Submissions by counsel assisting the Commissioner: Part 2--mattersfor comment.Page 49

99B. Submissions by counsel for the Northern Territory Government ondetriment and s. 50 (3) (b) of the Land Rights Act.101A. Submissions by counsel for the Northern Territory Government ons. 50 (3) of the Land Rights Act--strength of attachment; April 1985.102A. Conspectus by counsel for the claimants of previous observations ons. 50 (3) (c) of the Land Rights Act; March 1985.102B. Submissions for counsel for the claimants on detriment and s. 50 (3) (b)of the Land Rights Act; March 1985.103. Reply by counsel for the claimants to Exhibit 101A.--strength ofattachment; May 1985.Page 50

APPENDIX 1: The land claimed by the Labarganyayn claimant group, being partof Area 1; the delineation of its boundary with land solely claimedby the Wagiman is approximate only, as is the internal boundaryof the 'box up' area.Page 51

APPENDIX 2: Tipperary Station, prior to subdivision in 1978 into Forster,Litchfield, Elizabeth Downs, Fish River and Tipperary PastoralSource: Based on Exhibit 26, p. 255.Page 52

APPENDIX 3: Rough sketch of tribal distribution derived from Map. No. 7 inthe Daly River (Malak Malak) Claim Book, based on Stanner'sfield notes and map of the P930s.Page 53

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VOLUME 3The Wagiman ClaimPage 55

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HISTORY OF THE INQUIRY INTO THE WAGIMAN CLAIM(a) The amalgamation of several claims 1. In March 1978 the Northern Land Council lodged two applications forthe determination of claims under the Aboriginal Land Rights (Northern Territory] Act 1976 (the Land Rights Act).The first was on behalf of those members of the Wagiman language-owning group who claimed to be the traditionalAboriginal owners of Umbrawarra Gorge Nature Park, comprising some 972 hectares and located 25 kilometressouth-west of Pine Creek. This is Area 3 on the map at Appendix 2. The second application was on behalf of thosemembers of the Wagiman group who claimed to be the traditional owners of Douglas Hot Springs Nature Park,comprising some 3107 hectares and located on the Douglas River within Douglas Pastoral Lease. This is Area 2 inAppendix 2. 2. In February 1979 the Council lodged an application on behalf of those members of theNanggumerri and Wagiman language-owning groups who claimed to be the traditional owners of all unalienatedCrown land which lay within an area of some 5000 square kilometres bounded on the west by what is now DalyRiver Aboriginal Land, and by Tipperary, Oolloo, Douglas, Jindare, Claravale, Florina, Willeroo, Innesvale,Coolibah and Dorisvale Pastoral Leases. This is Area 1 in Appendix 2.3. Finally, in April 1983 the Council lodged an application on behalf of those members of the Wagiman,Nanggumerri and Wardaman 'local descent groups' who claimed to be the traditional owners of unalienated Crownland within Areas 1-4 in Appendix 2. This became known as the Upper Daly Land Claim. It can be seen that in 1983the three earlier applications of 1978 and 1979 were amalgamated into a single application, in which a third claimantgroup (the Wardaman) was added to the earlier two claimant groups, and a further area of land was claimed--Area 4in Appendix 2, being land bounded by Bonrook, Jindare and Claravale Pastoral Leases, the Fergusson River and theStuart Highway. Area 4 had formerly been part of the land claimed by the Jawoyn in the nearby Jawoyn (KatherineArea) land claim lodged in March 1978; the Jawoyn later withdrew their claim to Area 4.4. As noted in Volumes 1 and 2 of this Report, despite the formal amalgamation in 1983 of the three earlierapplications, three distinct and separate claims were in fact advanced during the inquiry. As the Claim Book (Exhibit1) made clear, each claimant group belonged to a different language group and each claimed a separate area of land(with an overlapping claim by the Nanggumerri and Wagiman claimants in their'box-up' boundary area shown inAppendix 2). In general each group presented its evidence separately.5. I dealt in Volumes 1 and 2 of this Report with the Wardaman and Nanggumerri claims respectively. Toavoid confusion it should be noted that the Nanggumerri claimants comprised only the members of the Labarganyaynsubgroup of the Nanggumerri language-owning group. Similarly the Wardaman claimants comprised only themembers of the Yubulyawun subgroup of the Wardaman language-owning group. Both are properly referred to bytheir subgroup names. Their respective claim areas are identified in Appendix 2. This Volume deals with the claimby the Wagiman to Area 1 less the Yubulyawun and Labarganyayn claim areas, and to Areas 2, 3 and 4. TheWagiman sole claim area is shown hatched on the plan in Appendix 2; the Wagiman group and Labarganyaynsubgroup jointly claim the 'box-up' area. It can be seen from the map that the Wagiman claim comprises some 90 percent of the amalgamated claim area.Page 57

6. There will be constant reference in this Volume to numbered sites--forexample, Kalay (287); these refer to those sites identified and named by theclaimants and numbered in the site list Exhibit 92. They are located on theamended site map Exhibit 90, which is reproduced in the fold-out map atAppendix 10.(h) The process of inquiry7. I turn to the chronology of the inquiry into the Wagiman claim. The bulk ofthe evidence of the claimants came from a small number of senior men andwomen; this is usual in land claim inquiries and accords with the structure ofAboriginal society where spiritual knowledge of country is closely kept andgradually attained by members of a group over a lifetime. After the inquirycommenced at the Claravale Crossing of the Daly River on 17 October 1983 thewhole of Area 1 was flown over on 19 October and salient features noted; seetranscript pp. 28-36. On 25 October 1983 three senior Wagiman claimants joinedwith the Yubulyawun in the vicinity of the boundary of Innesvale and DorisvaleStations; see Appendix 2. Their evidence related to the boundary between theYubulyawun claim area and the Wagiman claim area in land east of DorisvaleStation as shown in Appendix 2. On 26 October they gave similar boundaryevidence with Labarganyayn claimants at Kalay (287) (Collah Waterhole inAppendix 2); Dolly Huddleston of the Wagiman and Patrick Karnini of theLabarganyayn conducted a head-wetting ceremony to protect newcomers to thatsite.8. In July and September 1984 Wagiman claimants toured sites within theclaim area with their lawyer and anthropologists; these tours were recorded onsound-track videotape which was viewed during the inquiry on 3 December1984. See Exhibits 61A and 61B. This type of videotape evidence-in-chief hasbeen received in the past, and can be valuable in land claim inquiries, due tothe relaxed atmosphere; in this instance it was also useful because the difficultterrain encountered in much of the claim area, particularly in the Wet season,renders large areas inaccessible. Many of the sites which were referred to by theclaimants during these tours are shown on the map Appendix 3; not all of thesites they mentioned were visited on those tours. The first part of this videotapeevidence was given just south of the Claravale Crossing of the Daly River, eastof Dorisvale Station. It may be noted that the Daly River is called Kuwarduganin the Wagiman language. The site tour then proceeded south on the DorisvaleRoad and west along the track marked No. 16 on Exhibit 15B (Appendix 4) toLarrdulmaya (145) (Dead Mans Pocket), near Laurie Creek. This is marked inAppendix 2, at the extreme south-west of Area 1. On the return, further evidencewas given by the side of the Dorisvale road between Claravale Crossing and theStuart Highway; at the Oolloo Crossing of the Daly River; and at various placeswest of the Daly River in that part of Area 1 between Fish River Pastoral Leaseand the northern part of Dorisvale Station, shown on Appendix 4 as G.L. 2082.This involved a circuit from Oolloo to Jinduckin Creek, Marbeena Yard andback to the Crossing; these features are noted on the map at Appendix 8. Thefinal segment of evidence on film was given at Douglas Hot Springs Nature Park;it related to the 'Stray Creek area' (shown in Appendix 9, as NT Portions 1466-8), and to footwalking through the claim area.9. On 4 December 1984 claimants gave evidence at places in and near PineCreek, a head-wetting ceremony was performed at Kunyukpan-wubawu (284),and various places where deceased Wagiman lie buried near Pine Creek werepointed out. Evidence was taken at Kunangatngat (157) at Green Valley nearPage 58

Pine Creek, at Balariyn (265) near Kybrook Farm and at Kungaruk-wubawu(283) near Pine Creek. On 5 December claimants' evidence was taken at variousplaces in Umbrawarra Gorge Nature Park (Area 3 in Appendix 2), at variouslocations on and in the vicinity of Jindare Station, and at Karingal-wubawu(281) south of Four Mile Creek. On 6 December claimants gave evidence atLorrgla (288) near Hayes Creek on Douglas Station, at Kojar (282) (Black StallionCreek), at the wartime Fenton airstrip in the north of Douglas Station and atvarious places in Douglas Hot Springs Nature Park (Area 2 in Appendix 2). On7 December claimants gave further evidence at various places in that NaturePark, including some restricted women's evidence; at the Oolloo Crossing of theDaly River; at Didawu-wubawu (268) near the Daly River; at Bumji (4) (BanBan Lagoon) near Oolloo homestead; at Middle Creek near the junction of HayesCreek and the Douglas River; and where the Oolloo road crosses the DouglasRiver.10. On 10 December the claimants gave 'sit-down' evidence at Pine CreekCommunity Hall, at Copperfield, and at various places on Kybrook Farm, acommunity some 15 kilometres from Pine Creek where several of the seniorclaimants live. There was a display of dancing and singing by women andchildren at Kybrook, the significance of which was later explained. OnII December at Pine Creek, some of the claimants recounted their life histories;restricted men's evidence was taken at Kybrook Farm. On 12 December theclaimants gave further evidence at Pine Creek, including some additional restrictedevidence from the men. This concluded the oral evidence by the claimants,though not the evidence in their claim.11. The inquiry then moved to the Douglas-Daly farms area shown on Appendix9 to examine certain matters which the Northern Territory Government contendedwould require comment under s.50 (3) of the Land Rights Act if the claim wereacceded to. On 12 December 1984 camp was made at the Douglas-DalyExperimental Station, shown as DDRF on Appendix 9. On 13 December evidencerelating to existing and proposed individual family farms in the Douglas-DalyBasin was taken at the Vidlers' farm (Portion 2532 in Appendix 9), in thenorthern part of what was formerly Oolloo Station. (It may be noted here thatnearly all of Oolloo Station, NT Portion 1190 comprising some 492 squarekilometres, had been compulsorily acquired by the Northern TerritoryGovernment in 1982 together with Fish River Pastoral Lease (shown on .Appendix2) and Mataranka Station well to the south-east, for the purposes of agriculturaldevelopment. Oolloo was then granted to a statutory authority with a selfexplanatoryname, the Agricultural Development and Marketing Authority (hereinADMA), in March 1982 as a perpetual Crown lease. Evidence of agriculturalresearch work being carried out at the Experimental Station was taken at theStation. Evidence relating to farming was also taken at Ruby Downs farm(Portion 2530 on Appendix 9) adjoining the Experimental Station, at the Douglas-Daly grain receival depot built by ADMA beside the Oolloo road, and furthernorth at the Royles' farm Ceres Downs (Portion 2382 in Appendix 9) whichadjoins the northern boundary of Douglas Hot Springs Nature Park.12. The existing Douglas-Daly project farms and the lands the Northern TerritoryGovernment contended were required for new farms if its scheme for theagricultural development of the Daly River Basin proceeded, were viewed on ahelicopter flight. This went from Ceres Downs south to the northern part ofADMA's Fish River Lease, and continued just south of the Daly River, alongthe general line of the river upstream from Ruby Billabong to Ejong Waterhole(both shown on Appendix 10), and north along the eastern boundary of thePage 59

former Oolloo Station. On 14 December evidence was taken in Darwin from theConservation Commission relating to soil classifications in the Upper Daly Basin,and from ADMA as to the scheme for developing dryland farming in theDouglas-Daly Basin. If such farming proved commercially viable, ADMAcontended that the scheme envisaged the development of farms on arable landswithin the claim area.13. On 16, 17 and 18 January 1985 further evidence on the farming schemewas given in Darwin by ADMA. On 18 January the claimants' case resumedwhen Dr A. McGrath, the author of Exhibit 4 dealing with the history of thegeneral region, gave evidence. Some evidence was given by the Department ofAboriginal Affairs relating to Kybrook Farm. Dr A.K. Chase and Dr B. Meehan,the anthropologists who had prepared the Claim Book (Exhibit 1), gave evidencefor most of the period from 21 to 24 January 1985, in both open and restrictedsessions. Some further farm evidence from ADMA was also given on 21 Januaryand evidence concerning the two Nature Parks (Areas 2 and 3 in Appendix 2)was given on 23 January. On 24 January the question of the admission intoevidence of certain Northern Territory Government materials relating to miningwas argued; this question was decided on 29 January--the decision and reasonsare at Appendix 1. Evidence was given on 24 January about the geology andmineralization of the Douglas-Daly Basin and its water resources, and in relationto tourism in the region.14. On 25 January there was some further evidence on tourism and the soilresources in the Douglas-Daly Basin. On 25 and 29 January further evidencewas given on the planning for the development of farming in that region. On 30January evidence was taken from persons with interests in Innesvale, Bradshawand Dorisvale cattle stations, which adjoin the claim area. A representative of agroup interested in recreational bush driving gave evidence; there was alsoevidence relating to roads in the claim area. On 31 January evidence was givenby Mr Jones relating to his mining tenement B.A. 8B in Umbrawarra Gorge.The owner of Claravale Station gave evidence, and there was some furtherevidence relating to the mapping of soils and ADMA planning in the region. MrR.W. Wilson gave evidence on the practical need for continued access bysurveyors to official survey stations in the claim area and urged the desirabilityof retaining old bridle paths in the claim area for recreational use. This concludedthe oral evidence in the inquiry. Counsel made their final submissions on theevidence in the period 6-13 March 1985. Some further documentary materialswere later submitted. The submission of this Report has been much delayed.STATUS OF THE WAGIMAN CLAIM AREA15. As can be seen from Appendix 2 the claim area is large, somewhat less than5000 square kilometres in area. It includes lands reserved for certain publicpurposes, a mining tenement and land held under Grazing Licence. It is necessaryas a preliminary matter to examine the legal status of each of these several areasto determine whether they constitute land which is open to claim under the LandRights Act; that is, whether they constitute 'unalienated Crown land' defined bys. 3(l)as--'. . . Crown land [that is, for present purposes, land which is not the subject of agrant in fee simple, or set apart for a public purpose 'under an Act'] in which noperson (other than the Crown) has an estate or interest . . .Page 60

(a) Douglas Hot Springs and Umbrawarra Gorge Nature Parks16. In February 1967 land at the Douglas River (Area 2 in Appendix 2)comprising 7679 acres, NT Portion 904, commonly known as Douglas HotSprings, was reserved under s. 103 of the Crown Lands Act (N.T.) as ReserveNo. 1299 for the 'recreation and amusement of the public'. The Governmentgeologist had described the springs in 1905 as follows:'Situated 22 miles south of Brock's Creek on the Douglas River in the native territoryof Agiwallem. The springs have no volcanic connection . . . The flow of water has,however, been caused by a rupture in the earth's crust . . . The line of springs extendsover a mile south-easterly, cutting the Douglas River . . . The temperature of thewater at the orifices is from 59" to 65"C . . .' (Report, 1906, p. 6).In June 1969 this land was placed under the care, control and management ofthe Reserves Board, under s. 13 of the National Parks and Gardens Act (N.T.),and became known as Douglas Hot Springs Recreation Reserve. In September1979 it was renamed Douglas Hot Springs Nature Park.17. In August 1976 land comprising about 971.8 hectares (Area 3 in Appendix2), excluding the land comprised in mining tenement B.A. 8B, was reserved asReserve No. 1439 under s. 103 of the Crown Lands Act (N.T.) for a 'nationalpark'. In November 1976 this land also came under the management of theReserves Board. It had been known as Umbrawarra Gorge; in September 1979it was renamed Umbrawarra Gorge Nature Park.18. Lands reserved in this way under a Territory Act for the benefit of thepublic remain open to claim under the Land Rights Act; that is clear from thedecision of the High Court in R v Kearney; ex parte Japanangka (1983-84) 158CLR 395 on the meaning of the word 'Act' in the definition of'Crown land' inthe Land Rights Act. Both of these Nature Parks are therefore open to claim. Itmay be noted here that the claimants' general approach is that they accept thatboth should remain as Nature Parks open to the public, but they seek to havean input into their management.(b) Mining tenement B.A. 8B19. When Umbrawarra Gorge Nature Park was created in 1976 mining tenementB.A. 8B was excluded from it. The tenement consists of a small block of land4040 square metres in area, shown on the map Exhibit 74, within the boundariesof the Nature Park. Under s. 23(1)(f) of the Mining Ordinance 1939 (N.T.)formerly in force, the holder of a miner's right could occupy and use the 'surfaceof any Crown land for the purpose of . business, being a purpose connectedwith mining'. Mr K. Jones applied for ;his tenement under that Ordinance byvirtue of a miner's right he had taken out in 1967. Under s. 3 (2) (c) of the LandRights Act 'an interest arising out of the taking possession . . . of land by virtueof a miner's right' does not constitute an 'interest' in land which would removethat land from the category of'unalienated Crown land' in s. 3 (1). The interestconstituted by tenement B.A. 8B falls within s. 3 (2)(c). The land the subject ofthat tenement is therefore open to claim under the Land Rights Act.(c) Fish River Forestry Reserve20. In September 1969 an area of some 160 square kilometres near Dorisvalewas reserved under s. 103 of the Crown Lands Act (N.T.) 'for forestry and reafforestationpurposes'. This land, NT Portion 1101, became known as the FishRiver Forestry Reserve. It can be seen from Appendix 2 that the Reserve fallspartly within the Wagiman claim area, and partly within the 'box-up' area whichthe Wagiman and Labarganyayn jointly claim. For the reasons set out in para. 5Page 61

of Volume 2 of this Report this Reserve is open to claim under the Land RightsAct.(d) Land held under Grazing Licences21. When the claim was lodged, over one-half of Area I was subject to GrazingLicence No. 2074 over lands east and west of Dorisvale Station; see the map atAppendix 6, showing the boundaries of grazing licences at that time. GrazingLicences are granted on an annual basis under s. 107 of the Crown Lands Act(N.T.). It can be seen from Appendix 6 that Grazing Licences Nos. 2082 and2105 were then also held over major parts of the claim area, being the residueof Area I after G.L.2074, and the whole of Area 4. Grazing Licence No. 2105lapsed in 1986 while No. 2082, then held by Oolloo Station interests, was laterreplaced by G.L.2141 over the same area, after ADMA was granted Oolloo in1982. G.L.2074 was not renewed after 30 June 1989. It follows that the onlycurrent Grazing Licence affecting the claim area is ADMA's G.L. 2141. Theexistence of a Grazing Licence does not affect the status of land as 'unalienatedCrown land' within the meaning of that term in the Land Rights Act--see theHigh Court decision in R v Toohey; ex parte Meneling Station Pty Ltd (1982)158 CLR 327. The result is that land held under a grazing licence is open toclaim.(e) Bed and banks of the Daly River22. It eventually was made clear that the claim extends to the bed and banksof the Daly River, which constitute a boundary of part of the claim area; see thehistory of the claim on this point summarised at pp. I-5 of Exhibit 88, thedescription in the amalgamated application of the area claimed by reference toadjoining pastoral leases, and the description of the boundaries of those leasesin Exhibits 89A, and 89E-G. The question whether the bed and banks of riversare open to claim is discussed at para. 5 of Volume I of this Report. The bedand banks of the Daly River are clearly vested in the Crown under s. 4 of theControl of Waters Act (N.T.); whether they are open to claim depends, asindicated earlier, upon whether any person has an 'estate or interest' in them interms of the definition of'unalienated Crown land' in s. 3 (1) of the Land RightsAct. As a matter of comity I concur in the conclusion of Toohey J in paras65-66 of the Daly River (Malak Malak) Report that the bed and banks of theDaly are open to claim; that Report related to land lower down the same river.I recognise the force of the powerful argument to the contrary, developed atpp. 10-16 of Exhibit 88. The thrust of that argument is that the statutory rightsunder ss. 6 and 7 of the Control of Waters Act (N.T.) of access and user, to takewater, and to sue for trespass, vested in the owners of lands bounded by a nontidalriver--such as the owners of Florina, Claravale, Dorisvale and Oolloo cattlestations--constitute rights of a proprietary nature, properly classified as that typeof profit a prendre known as a 'profit appurtenant'. The argument runs that suchrights give rise to an 'estate or interest' in that half of the bed of the river whichadjoins the pastoral lease, and in the bank of the river on that side, within themeaning of s. 3 (1) of the Land Rights Act. Mr Pauling Q.C. distinguished thesestatutory rights under the Control of Waters Act from the rights of the holder ofa grazing licence which were held not to constitute an 'estate or interest', in theMeneling case. If this argument is correct, the Commissioner has no jurisdictionto conduct an inquiry into a claim to (or recommend a grant of) that half of thebed of the Daly River which adjoins these four cattle stations, or its bank onthat side. There can be no doubt that there is jurisdiction in respect of the bedand banks of the Daly adjacent to Agricultural Lease No. 752 (Portion 1188)Page 62

and Special Purposes Lease No. 112 (Portion 769) shown in Appendix 6, as theirboundaries do not extend to the river; see the copy title documents, Exhibits89C and 89D.THE CLAIM AREA: LOCATION AND TOPOGRAPHY23. A description of parts of the claim area is set out in paras 7-9 of Volume Iand paras 8-9 of Volume 2 of this Report, and need not be repeated. Thetopography is quite varied. In the south-west the country is rugged, consisting ofan extensive flat-top plateau edged by cliffs, draining into the river systems. TheDaly River Basin forms a wide valley running south-east to north-west throughthe claim area. To the south and west of the Daly lies sandy undulating countryrunning back to broken tableland and flat-topped hills of sandstone and ironstone.In the south-east between Crocodile Creek and the Flora and Daly Rivers issome high sandstone tableland country. The country to the north and east of theDaly is undulating with scattered rock outcrops backed in the north-east bybroken tableland consisting of sandstone and ironstone. As a claimant PaddyHuddleston put it, after you go up Stray Creek 'big limestone from there then'.24. The greater part of the claim area west of the Daly River is inaccessible inthe Wet season; the river systems provide an effective barrier. The various accessroads are shown in Appendix 4. In the Dry season, access to the south-westernpart of the claim area is gained from the Stuart Highway via the Dorisvale road,and thence west by a rough track. The Oolloo Crossing gives access via roughtracks to Kalay (287) (Collah Waterhole) and to other parts of the claim areawest of the Daly River and of Dorisvale. There is good road access to bothNature Parks (Areas 2 and 3) in the north, while the Dorisvale road runs throughArea 4.HISTORY OF THE CLAIMANTS AND THE CLAIM AREA(a) The claim area25. I dealt with the history of the general region of the claim area in paras10-14 of Volume I of this Report; and again, with particular reference to thesouth-western part of the claim area and the Daly River, in paras 10-19 ofVolume 2. It is unnecessary to set out those matters again though they areequally relevant to this Volume.26. No Government settlement for the protection of Aboriginal people withinthe claim area was ever provided; the Daly River Mission no doubt served inpart a protective purpose from 1886-1899 and again from 1955. In World WarII, Cullen Army Compound (Jabal) (269) was set up near the Stuart Highway;many Aboriginals from different regions were compulsorily brought there, andworked for the Army during the War. To the north-east of the claim area therehave been compounds for Aboriginals in and around Pine Creek; some Wagimanlived there and from about 1981 Kybrook Farm was set up and several claimantspresently reside there. The locale is pleasant (see transcript pp. 912-921, 927-930, 935-944) but it is a somewhat depressing place as clearly 'the grog' plays asignificant disruptive role in the small community (see transcript pp. 926, 931and 943).27. In the north-east, Area 4 includes part of what is in historical terms themost important mining district in the Territory. Extensive mining has takenplace there since the 1870s and from time to time relatively large numbers ofnon-Aboriginals, mainly Chinese, have lived and worked there. The completionPage 63

of the Overland Telegraph Line in 1872 meant that news of the discovery ofgold at Yam Creek in July that year quickly attracted many diggers from thesouth. The map at Appendix 5 gives an indication of the resulting intensity ofthe mining influx, spasmodic though it proved to be; see to the same effect the1905 plan of the gold mining district at the back of Exhibit 4. The conditions oflife for the miners were very rough and hard. There were sporadic attacks byAboriginals, which sometimes resulted in ruthless reprisals. From 1874, Chinesewere recruited from overseas to labour in the Territory. Most of them stayedafter their contracts expired, to prospect for gold. The following figures areapproximate only. The Chinese population in the Territory rose dramaticallyfrom 108 in 1874 to 4108 in 1881, peaking at 6122 in 1888; at that time therewere 1144 other non-Aboriginals in the Territory. The non-Aboriginal populationengaged in mining peaked in 1895, with 1985 Chinese and 111 others. TheChinese were nearly all males. Eventually, measures were taken to restrict theirinflux. From 1889 the Chinese population steadily declined. By 1894 the miningpopulation for the Territory stood at 2015 Chinese (the largest number everattained) and 65 others; by 1913 there were 659 Chinese miners, and by 1921only 13 remained. It can be seen that there was a relatively large scale, thoughnot very long-lived, incursion of non-Aboriginals in the north-east of the claimarea, with various settlements coming into existence such as Yam Creek, PineCreek, Brocks Creek and Union Town. For an impression of the dimensions ofthis incursion see paras 12-20 of the Jawoyn (Katherine Area) Report.28. The impact over these early contact years of large numbers of non-Aboriginalswas disastrous for the Aboriginal people in the vicinity of the mining district.Their lives were ravaged by liquor and opium, and introduced diseases such assmallpox, leprosy, tuberculosis and venereal diseases meant that their populationdeclined very markedly. Dr McGrath in Exhibit 4 cites observations by DrBursten and Dr Holmes in 1911 on an inspection tour in which they found agroup of some 31 Wagiman camped near Brocks Creek (which is just north ofDouglas Station) on a hunting: expedition. Exhibit 4 (p.24) records that one ofthem explained to Bursten and Holmes that:none of the tribes inhabiting the country on the east side of the Daly river had nowany disagreement that required adjustment by battle. They hunted over each other'sterritories within limits. The Woggeman [sic] country was on the West side but theycame across and moved over country belonging to neighbouring friendly tribes whooften similarly invaded [sic] to Woggeman [sic] districts.Again, in 1911 J.T. Beckett, Inspector of Aborigines, found that some 40 Wagimancamped south-east of Brocks Creek were clean and healthy.29. I described in para. II of Volume 2 of this Report the punitive action takenagainst Aboriginals as a result of the murder of copper miners on the Daly in1884. The murderers were Wolwonga and that group suffered the brunt of thereprisals. Knut Dahl spent time collecting on the Daly in 1894, and writing in1926, said:'The Wolwonga, which was once the most powerful tribe of the Daly, became veryweak after the events following the murder of [the Daly miners].' (In Savage Australia(1926), p.37).(b) The claimants' historical account30. There was no express attempt to elicit from the claimants any type ofhistory of the Wagiman people. Their case is that the claim area falls within thelands they have occupied since time immemorial--their traditional country--and so their history is irrelevant. But some of their evidence in fact bears uponPage 64

the history of their people. I consider that Stanner's assessment of Murinbataaccounts of their traditions is applicable to the evidence of the Wagiman--ingeneral, it reveals a shallow perspective on time and an outlook which is in facta historical though asserting the contrary; see Stanner (1968) 11 Oceania 139 at148.31. The most senior claimants to testify were Jabulgari (George Huddleston,senior), Milguyari (Douglas Jack), Kitjula (Elsie Talbot), Wujinma (DollyHuddleston) and Lulu Talpalngali. The first three are now deceased. GeorgeHuddleston, senior, clearly had a great knowledge of the traditional country ofthe Wagiman and its spiritual landscape. He said he had been taught theWagiman stories by his wife's step-father, Imbindilma (Charlie) and Ngabalanggitwho had adopted him; see transcript, pp.889, 892. Of the middle-agedgeneration Benburr (Paddy Huddleston) gave a considerable amount of evidence,as did Wananjirri (Fred Muggleton) and Palampal (Don Liddy).32. It is clear from the claimants' evidence that their forebears came in to workon certain cattle stations within the claim area; as far as most of the seniorWagiman claimants are concerned Dorisvale, Oolloo, Claravale and Douglascattle stations were a dominant influence in their lives.33. Paddy Huddleston explained that Aboriginal station workers went walkaboutduring the Wet season, returning to work to earn food and tobacco. He explainedat Kakawariyn-wubawu (286), some 5 kilometres south of the Claravale Crossing,that when he had worked at the old Dorisvale Station:'Old manager used to let us go only Wet time you know, boggy place can't work onhorse, can't muster, we used to come out here and live till dry weather come throughthe Wet.' (Exhibit 13, p.30)At Larrdulmaya (145) in the extreme south-west, he said that the 'old peopleused to come to [the caves there] and hide here' because the then manager ofDorisvale Station was 'a really rough man'. He was clearly speaking of eventsbefore his time; he appears to have been born about 1942. Dorisvale's boundariesat one time extended to that area (see Exhibit 70); in effect they continued toextend there until recently, under G.L. 2074 (see Appendix 4). He said atLarrdulmaya (145):'. .. big mob Wagiman used to live here. This is the place, this is the really home.He still home . . .' (Exhibit 13, p.53)He recounted a story handed down of an alleged shooting of an Aboriginal atthe Aboriginal compound at Wutnung-wubawu (74), in the days of the oldDorisvale Station. He said that when he was a boy, working on Dorisvale Station:'Ride a horse, come along this country [Larrdulmaya (145)1 here. My uncle used totake me up and show me all the cave over there and that painting and he used toexplain about things bin like that before, you know. Tell me all the time and Iused ... to have it in my brain all the time. I still remember like till today, don'tforget about what my granny and my uncle used to tell me. . . . They [non-Aboriginals]used to shoot every fella when they ran into blackfella along this creek [Laurie Creek],shoot him out from here right up to Kalay [287]. Only few wanted me to go in andwhen that war start to come [World War II] they been catch some that time, pushthem right off to Cullen [Compound].' (Exhibit 13, p.58)At Douglas Hot Springs Nature Park he said:'We used to go back, and just muster around [Stray Creek]-the horses, like that.When the holiday come, we used to go down in the river and go up to the Walangambi[site (179), Reedy Hole on Jool Chung Creek, just outside the Northwestboundary of the claim area] . . . up there, holiday and bush tucker. We never usedto starve . . . sometimes we used to have little bit of store at old Banyan [BanyanPage 65

Waterhole near the Oolloo Crossing of the Daly River], you know. Rations we used togo and get it . . . one used to stop there and look after him--horses you know? Andwe used to come back and get some more rations and they used to get water off oldTom Liddy [owner of Oolloo Station from about 1941 to 1961]. Used to knock abullock down. Get a little bit more ration and start go off there--Yijung [47] Billabong[Ejong Waterhole, further up the Daly River]. Hunting right up to Dorisvale. Job usedto start. Ready, used to come back, half Wagiman come back to Oolloo and halfWagiman work at old Jack Liddy's place at Dorisvale [John Liddy held Dorisvalefrom 1939 to 1949].' (Exhibit 13, p.155).Near Pine Creek he identified a place near a waterhole where the Wagiman alsocamped 'all the way [that is, from Pine Creek] down to this creek here.' (transcript,p.583). I note that four Wagiman were said to have been buried in that vicinity.34. At Marbinyang (38), near Marbeena Yard (see No.40 on Appendix 3)George Huddleston said:'Time before that old man [Imbindilma] come here before stockmen bin come musteringcattle. They used to camp out all about here, go down Marbinya [sic], cut a spear,come back, straighten him up. Used to have big fire there, that big billabong, humpy,paperbark humpy.' (Exhibit 13, p.128).At Jabal (269) he told how the Wagiman had lived in tents at Cullen Compoundduring the war, with other Aboriginals, and worked in Pine Creek for the Army.He said that his grandfather Lagorabalkiyn Billy died at the Compound.35. George Huddleston explained that they had to carry water across the redsand country west of Cattle Creek and south of Banyan Waterhole (see Appendix8) in a bamboo. The Wagiman call it Gumuyn (desert country). Paddy Huddlestonsaid that type of country extended along the Daly to the junction of the Floraand the Daly Rivers, and that it was still all Wagiman country.36. At Douglas Hot Springs Lulu Talpalngali said that 'all the old people usedto camp' at Manamyayn (290) in the Stray Creek area (Exhibit 13, p.151).37. Don Liddy, when asked at Douglas Hot Springs whether he used to go toStray Creek said:'My father used to take me . . . walkabout. Holiday time, you know? He'd take thekids, he'd take him camping all along the creek, Stray Creek. Right up to JindareStation. We used to go up there--my father used to run out of tobacco--might besalt, tea and sugar. Go up there. Some people used to be there too, Maiali people youknow, mixed people. Go up there. . . . And then I'm going away now because jobhave ready for me on the station.' (Exhibit 13, p.155).He said that he used to muster stock all the way down to Stray Creek Yard.George Huddleston also said that he did stock work on Stray Creek--'just stockwork'. He said,'I never been footwalk around there'.38. Various claimants gave their personal histories. These threw some light onthe recent history of their group. George Huddleston said that he met andmarried his wife Dolly at Killarney Station. They later went to work at Dorisvalefor 'Jack Liddy'. Dolly's father was also working there. It appears from therecords that Jack Liddy held Dorisvale from 1939 to 1949. After a year theywent to work at Claravale Station for'old Mick Liddy'. The records show thatone Cyrus William Liddy held an interest in Claravale from 1944 to 1966; heclearly was known as 'Mick Liddy'. There were other Wagiman working there.George Huddleston stayed for three or four years doing stock work. During'holiday time' he and his family would go 'just down the river, crossing; justcamp there'. As a stockman he went mustering all over Claravale and Dorisvale.After leaving Claravale he went to Oolloo Station to work for 'old Tom Liddy',Page 66

who was 'the one who [had] reared me up' (see para.45 for an account of this).Again he was a stockman; he said that only the Wagiman worked at Oolloo. Itappears from the records that Thomas Liddy held Oolloo from 1941 until 1961,though he subleased it in 1954. George Huddleston stayed at Oolloo for anotherthree or four years and then went on to work for 'Paddy Liddy', on DouglasStation. It appears that Patrick Liddy was the son of Thomas Liddy, and heldDouglas from 1950 to 1965. George Huddleston said that only Wagiman peopleworked on Douglas. After a year there he went back to Oolloo briefly, to workagain for Tom Liddy; he then returned to Dorisvale to work for 'old Jack Liddy'.He stayed at Dorisvale for some four years; at that time there were someJaminjung people working there. He described going 'walkabout' in Florina,'justfor holiday', with his family and then back to Dorisvale'holiday along the riverthere, camping out, till the Wet was finished'. He appears to have worked atClaravale later, and then went back to Dorisvale. He described his life duringWorld War II when he stayed in the Cullen Compound for one year, beforebeing picked up again by 'Mick Liddy'. Later he went to Darwin, worked therefor a while and then returned briefly to work at Douglas Station for PaddyLiddy, before going on to Oolloo to work for 'old man Tom Liddy'. He describedmustering all around that country:...right up Stray Creek...right up there mustering--Ejong on other side,Jundakiyn (Jinduckin Creek)--all around there, Mardulinba . . .He then went on to work at Dorisvale, again for'old Jack Liddy'. He explainedthat he had really only worked on three stations: Oolloo, Dorisvale and Claravale.It seems that during his time these stations and Douglas were held by the threeLiddy brothers, Mick (Claravale), Tom (Oolloo and Douglas) and Jack (Dorisvale),with Tom's son Paddy later holding Douglas. When George Huddleston finallyfinished work as a stockman at these stations he worked briefly at Katherine,Ban Ban, Mount Bundey, and then at Adelaide River for two years. He thenwent to live at Pine Creek, and worked on Mary River Station for a while. Afterhe broke a leg he returned to live in Pine Creek, first at the'old Compound' andlater at Kybrook. He explained his earlier life pattern as follows:I had to stop with them old people, reared me up. I know them old people too but Icouldn't go away.Q. What mob?A. All the Liddy. I couldn't leave them. They reared me up. They never get moneyto pay me. They used to pay me flour, sugar--tea and sugar--tobacco. That's all.(transcript, p.1047).Dolly Huddleston had moved around with her husband, working on the samestations.39. Douglas Jack was born on Douglas Station when Michael Fleming was theowner. The records show that he preceded the Liddys on Douglas Station; heheld it as a pastoral lease from 1927 until he died in 1940. However, it seemshe had been running cattle there for many years before that; his name and thatof his uncle, Jim Fleming, appear on old maps as the holders of variouscontiguous pastoral permits in 1910 in the Douglas-Daly area. Douglas Jack saidthat he mustered on Douglas Station:... up to Hot Water, right up Pack Saddle Swamp, Butterfly Gorge, right around,back to Gipsy Spring, back to Bull Creek, right down to Jungarra . . . We musteringback to Hot Water, Jungarra, back to Cow Creek, back to the old Douglas Stationwhere we been boys.... mustering all the way along, from river right up TimberSwamp, Polish Swamp, right up to that Leichhardt, that Dingo Pup dreaming andOolloo Road, Middle Creek. (transcript, p.990).Page 67

He worked on the railway for a time and then went back to Douglas; whenMichael Fleming died, he buried him there. That would have been about 1940.He then worked for the Police at Brocks Creek and later 'for old Mick Liddy' atOolloo, with other Wagiman. After a holiday he went back to Douglas and 'oldPaddy Liddy' gave him a job. After 'Paddy sold out' Douglas Jack said he wentto work at Pine Creek and then went back to Oolloo working for'old Tom'. Itappears from the records that Patrick Liddy sold Douglas in 1965. Douglas Jackfinished work on Oolloo when 'old Tom sold out'. The records show that ThomasLiddy subleased Oolloo in 1954 and sold it to Robert Rixon in 1961. DouglasJack explained that he helped Tom Liddy build a new Oolloo homestead at BanBan Lagoon. It appeared in fact that he continued to work on Douglas Stationfor the various succeeding owners, after Patrick Liddy sold out in 1965. Heexplained that now that he had ceased work he:... just stop there [that is, on Douglas Station]. They look after me, getting storesthere and getting pension money there. . . . I'm getting store at station.Q. What reason are you stopping at that station?A. Well, that's my country. I bin grew up there, from Douglas right up to Hot Water,right up to that big hill. That's Ngamayang Hill now, Hayes Creek. That's where I'mstopping now, Ngamayang now. [This is site Namayang (298), a Wagiman name forhills and hot springs.].Q. Yes, and what reason do you stop at that place?A. Well, that's my country. I bin reared up there. (transcript, p.993).He said that he would like to live at 'Hot Springs' because:I love to stop there, my country, Wagiman.... I bin grow up there. (transcript,p.994).It may be that Douglas Jack did not speak the Wagiman language; see transcriptp.560. He said that the Wagiman came from Kimul(ll8), and his father camefrom there; see transcript p.895.40. Lulu Talpalngali, Douglas Jack's sister, was born on Oolloo Station; shewas taken to Douglas Station when 'old Mick Fleming' was 'the white fellowboss' (transcript, p.959). I note that the boundaries of these stations have changedover time. She said there were not many Aboriginals then working on Douglasbut they were all Wagiman. She described a life of hard physical work, growingup; when she was older she used to help in mustering. During'holiday time' herfamily would 'go down along river, hunting around.... might be right upJungarra and come back' (transcript, pp.961-2). Later, she went to work atBurnside Station, just north of Douglas Station. She worked there as a cook inthe kitchen for about one year. She said:Holiday time come, I go back, straight back along Douglas.' (transcript, p.964).During World War II she was required to work in Batchelor, doing laundry workfor the Army and then was sent to Powells Creek Compound, where Aboriginals'from all the country they come up there'. Again, she and her sisters worked inthe kitchen. She thought she might have remained in the Compound for aboutfour years. Afterwards she went back to Douglas. I note that Thomas Liddy heldwhat are now Douglas and Oolloo stations from 1941 to 1950. She then workedat Dorisvale for Jack Liddy for about three seasons with her mother; she workedboth in the house and at the mustering camps. The other Aboriginals workingon Dorisvale were Wagiman. Afterwards she came back to work at DouglasStation for Paddy Liddy, with her sisters and her mother. On holidays theywould go down to the old station homestead and:Make big camp there halfway along that crossing, old buggy crossing.Page 68

This appears to be a reference to the Douglas Crossing; the old Douglas homesteadwas not far away (Nyabuyn (216)). When Paddy Liddy sold Douglas she went toDarwin; it appears that he sold the property in 1965. She detailed the work shedid at Bagot, and later at Daly Waters before she returned to Bagot. While atBagot a woman said that everyone should 'go back along their own country'; thispersuaded her to go back to Douglas Hot Springs with a friend. They were takenthere in July 1979 by the Northern Land Council and they camped there forabout two weeks. They appear to have made other trips there since. She said shewas asked about the Dreaming 'but I didn't know that law yet' (transcript,p.982); this, in context, was clearly a reference to the right to claim under theAct. She said she didn't then know much about the country; however, there wasa confused context and it later appeared that she had learned about the Dreamingsfor Tjuwaliyn (302) (Douglas Hot Springs) from 'old [Jariyn] Billy, my otherfather' when she was a small girl (transcript, p.988).41. During the site tours, at Oolloo Crossing she said that as a young personshe used to walk around in that vicinity. They used to cut bamboo at Walangambi(179), which is Reedy Hole on Jool Chung Creek (see Exhibit 13, pp.98-9and Appendix 8). At Marbinyang (38) near Marbeena Yard (shown on Appendix8), well to the west of the Daly River in G.L. 2082, formerly part of OollooStation, she said that she had worked in the stock camp there in the time of'oldTom Liddy' and that 'nobody else only all the Wagiman' worked there (seeExhibit 13, p.129). She had also mustered at Stray Creek and her mother wasburied near the stockyard near the Daly River. She said that she and DouglasJack had mustered at Jindare for 'old Mick Fleming' (transcript, p.666).42. Elsie Talbot was born on Douglas Station on 9 June 1911. She was thedaughter of Michael Fleming and a Wave Hill woman but said she was Wagiman,following her step-father Jariyn (Billy); see transcript p.896. She lived on theStation until she was nine and then was sent by Michael Fleming to a conventschool in Darwin for 10 years. She then remained on in the convent workingwith the nuns until 1929 when she married. She went back to see her father in1929 but that appears to have been the last visit she paid to Douglas, thoughshe and her children and grandchildren later picnicked at the Hot Springs fromtime to time. She spent the war years in Adelaide and afterwards lived atMataranka, Pine Creek and Darwin. She said that there weren't many Aboriginalsworking on Douglas when she was a child:After the stock work they go home. Wherever they're going to go. (transcript, p.1003).She said that:Old Billy [Jariyn] is my old step-father. I think I would like to be in his ways now,Wagiman. (transcript, p.1005).Her view on the claim was as follows:I think Wagiman people should have land and our children all follow there. We'd liketo have a land of our own. . . . We could look after it. (transcript, p.1004).She said that after her father died she 'never went back' to Douglas (transcript,p. 1004). She gave details of her children's scattered whereabouts around Australiaand their various occupations.43. During the site tours in 1984 Don Liddy explained at Dorisvale that whenstation work was finished in the Wet season:... all the boys get their rations, walk around everywhere, camping out this river[the Daly], I used to walk myself, I can't get lost this country. When I bin kid, my olddad, he showed me all this country. Even in the night I can walk straight back to myplace . . . I come out right place I won't get lost, nothing! I got him in my mind allthe time. (Exhibit 13, p.39).Page 69

He explained that he had worked on Oolloo Station in 1957 and then came towork 'for six years for Tex'; this is apparently a reference to Leslie Milton Mearwho held Dorisvale from 1961. He said:I used to take all the horses every year in Dead Mans Pocket and Kalay, [in thesouth-west of the claim area] and keep them horses on good feed you know. (Exhibit13, p.39).He said he married at Dorisvale and:brought [his children] here [Oolloo Crossing] footwalking too, no motor car, used tocarry my swag and all the food and kids, me and my wife camping all the way rightdown to Oolloo. I stopped with Bob [that is, Robert Rixon who acquired Oolloo in1961] . . . about six year, from there start walking from there, take all the kids bush,walk down to Tipperary Station . .. I been stop there, I been get a job with MrMcGill Tipperary Station. (Exhibit 13, p.101).He said that during World War II:We used to travel about this Walan-gambi [179 (Reedy Hole)j, Bamboo Creek nowjunction from Reedy Hole junction, we had big camp we bin stay there for long timethen the war bin finished, then my old man take me back and start work [for'oldTom Liddy']. (Exhibit 13, p.100).He later mustered cattle upriver as far as Ejong Waterhole (Yijung (47)), and upJinduckin Creek. He and Paddy Huddleston had mustered around Marbinyang(38) (near Marbeena Yard), when working for Tom Liddy. He said that he didstock work for Tom Liddy up Stray Creek and that his father had taken himcamping'all along . . . Stray Creek', right up to Jindare, to get tobacco (Exhibit13, p.155). He gave an account of walking in 'holiday time' along the DalyRiver, to Oolloo, Tipperary, Hayes Creek, Oolloo and back to Dorisvale (Exhibit13, p.173). His father and mother were Wagiman, and his grandmother andfather were buried at Pine Creek; see transcript p.897.44. Fred Muggleton explained that during the War the Aboriginals were takento the Cullen Compound and 'that's why we couldn't be here' [near the ClaravaleCrossing]. He said:I went to Kalay [287] and all them places travelling round and round the country.(Exhibit 13, p.19).He believed his father, mother, grandmother and great-grandfather had beenborn at Kalay (287) and his father and mother were buried at Pine Creek; seetranscript p.894. He said that when aged about seven he was taken from JindareStation to Darwin Compound with his parents, and then to Pine Creek, andBathurst Island. Later he had worked in Darwin in various jobs and helped inthe wartime evacuation. He joined the Army and after demobilisation he hadvarious jobs in Alice Springs, driving trucks. He lives in Darwin. At OollooCrossing he said:I been round for years too, up to Fish River all round the place, you know, puttingyards and fences, putting that yard up here, near that billabong, catching brumbiesand things like that. Up the river, up to . . . yard there. I was working for Bob Rixon[Oolloo] that time, that windmill just up here, put a fence around that Jabanta coupleof miles. (Exhibit 13, p.102).At Marbeena Yard (see Appendix 8) he spoke of working in Dorisvale when hewas young:. . this old lady and that old man [referring to George and Dolly Huddleston], themtwo was young then . . . we used to work together. Go up there and come back here,come back to Tom [Liddy]. Finish, we go away holiday. We might go down the riverholiday, and after that we go back again. Might be we go back work there and comeback here, come back to Douglas. We doin' that all the time. (Exhibit 13, p.130).Page 70

45. Paddy Huddleston gave an account of working at Dorisvale in 1952 as aboy, mustering to Kaway (102) the Yubulyawun site in the south-east and toJiwana (176) (Mount Bowman) in the east. He was taken to Oolloo to workwhen he was small, and said:Work there but I think too, I go back to my place all the time, come back to Wagimancountry. Come back work at old Mick Liddy near that Claravale there, near closelonga my country, you know. (Exhibit 13, p.44).He said he had been taken to Cullen Compound when he was aged about nineor ten and after the War he was brought back to Claravale Station with relatives.He said that during the Wet season, they camped down Bradshaw Creek as faras Pony Pocket Creek (in Dorisvale). At Junatja (44), a spring in JinduckinCreek, he explained:. . we used to muster around before here . . . Tom Liddy used us for tailing cattle,we used to feed him around, my father used to work with Tom Liddy, that all thewire we used to tie all that post, that wire there look. (Exhibit 13, p.106).He said at Junaytjin, on the eastern side of Jinduckin Creek on the track fromMarbeena Yard to Dorisvale, that it was Wagiman country and that they usedto burn the grass 'to keep it country clean you know and give cattle all the timepick on flat, all the time' (Exhibit 13, p.107). He said that he had walked 'allthrough' the Stray Creek country as a child with his Uncle,'right down to themain river' (Exhibit 13, p.154). He said that they used to 'just muster around'Stray Creek and:When holiday come we used to go down in the river and go up to the Walankambi[Walan-gambi (179)1 . . . holiday and bush tucker. (Exhibit 13, p.155).He gave an account of walking from Dorisvale to Coolibah to work when he wasa young married man with two children; and later walking back to Dorisvale:I stop there because I knew Wagiman country I was alright. (Exhibit 13, p.173).He said that in the 'olden days' a lot of the Wagiman used to camp at a placein Pine Creek (transcript, p.548). This was confirmed by others; GeorgeHuddleston said that the camp was there before the 'old rattler' train came.Paddy Huddleston said:Biggest camp used to be before at Kalay [287]. That's the main place. (transcript,p.557).At Douglas Hot Springs he said:We used to muster cattle from here back to the Douglas Station, back to the all rockyand back to the Oolloo. This was really Wagiman. That's why all the Liddy used tolike all the Wagiman people, used to work on the station, Oolloo, Dorisvale, Claravale.All the Wagiman used to work on the three stations. This used to be lot of Wagiman.That's where we used to work, three stations. (transcript, p.770).He gave the following history of his family:Tom Liddy told me about old fellow [his father, George Huddleston] where hepick ... my dad up when he was a kid, you know? Tom Liddy reared him up,brought him up Coolibah Station. Old Tom Liddy had Coolibah Station. After thatwhen he left he brought old fellow up to Killarney Station...Willerooway ... Flora, Killarney Station, that first. Second, Coolibah. From there he beenmove from Coolibah. He been buy Oolloo Station. We been come there then. I was alittle boy then. . . . We been working there. . . . work at Oolloo. Used to take us,all the Liddys. Go up back work for Jack Liddy. From Jack Liddy we go back, workfor Mick Liddy. From Mick Liddy we used to come to work, and three brothers. Weused to go up and down. (transcript, p.789).Page 71

The account of George Huddleston, as a young Mudbura man, being 'reared up'by Tom Liddy is in accord with George Huddleston's own account at transcriptpp.877-891; he was adopted by the old Wagiman man Ngabalang-git. There is auseful summary of references to materials on personal histories in Exhibit 96,pp.2.10-2.13.(c) Conclusions46. I consider that it flouts common sense to accept that, in pre-contact times,Wagiman country occupied an area as extensive as that which is suggested bythe claim area. The Daly River Basin is a fertile area, a Garden of Eden for thehunter-gatherer, and historically appears to have been the home of many differentAboriginal groups. The likelihood is that those groups closest to the non-Aboriginalincursions commencing in the 1870s in the north-east suffered the first declinein population, and the process continued as Aboriginals from ever further afieldwere attracted to the new mining settlements there, seeking goods such astobacco.47. I consider that the general thrust of the claimants' evidence points toWagiman country as being historically on the west side of the Daly River. Themost important part of their traditional country appears to lie in the south-westof the claim area.48. The incidents of contact with Wagimans in 1911 referred to in para. 28indicate that by the early years of this century some Wagiman were already inthe vicinity of the mining district in the north-east. At about the same time somewere probably beginning to work on the cattle stations, first of all on thosewithin their traditional country. With the gradual extinction of whole peoplesdue to decline in population--a fate which possibly has now befallen, forexample, the Tagoman who were mentioned in passing by Bill Harney at transcriptp.58 in the Wardaman stage of the inquiry, and at p.918--the probability is thatthe Wagiman now fill the void. I consider that their claim to traditional ownershipof lands to the east of the Daly rests upon their quite recent residence there; thatis, recent in historical terms. However, as Toohey J. pointed out in para.184 ofthe Alligator Rivers Stage II Report,'a land claim necessarily catches a situationat a point in time'.49. It is also clear that for a lengthy period the lives of the senior claimantsand their immediate forebears were conditioned by the fact that they worked formembers of the Liddy family, who happened to own adjoining cattle stationsstraddling the Daly River. The lives of Lulu Talpalngali and Douglas Jack werealso conditioned by the fact that they were brought up on Douglas, MichaelFleming's cattle station. Many of these senior claimants were moved around theLiddy cattle stations as their services were needed by the Liddy brothers.50. I consider that it would be wrong to conclude from the evidence of theclaimants that the present boundaries of all the cattle stations on which theymainly worked, lay within what was historically the Wagiman country. Theiraccounts of their movements between those cattle stations appear to me to showthat their moves were largely the result of decisions by the various members ofthe Liddy family. The senior claimants have an extensive knowledge of the claimarea east of the Daly River; that is to be expected as their evidence is that theytravelled over much of it in the course of stock work. In course of time, Iconsider, with the dying out of the original Aboriginal inhabitants, whoever theymay have been, the Wagiman have imbued the landscape of that part of thePage 72

claim area with a spiritual character. This is a natural development when anAboriginal group occupies land after earlier occupiers have died out.When an outlook in which there is a shallow perspective in time is coupledwith the usual incidents of Aboriginal traditional life--conception, birth, burial,ritual and ceremony--in a relatively short time there will arise genuine assertionsby the present occupiers of immemorial traditional ownership. See generallyparas 146-151 of the Finniss River Report. However, I agree with Toohey J'sview in para. 151 of that Report that the statutory conception of traditionalAboriginal ownership in the Land Rights Act envisages 'situations that are notnecessarily static or ordained for all time', and the inquiry is concerned with thesituation as it presently exists, and whether the requirements of the Act are metby the claimants.51. It is significant that the evidence is that claimants spent their'holiday time'near the Daly River and there maintained a traditional lifestyle.THE CLAIMANTS' CASE52. Claimants under the Land Rights Act are required to establish that they arethe 'traditional Aboriginal owners' of the land they claim, in terms of s.3(1) ofthe Act. Accordingly, they must prove that they constitute a 'local descent group'and possess in common spiritual affiliations of a certain quality to sites on theland claimed, or on their traditional country if the claim area lies within it, andare traditionally entitled to forage as of right over the land. I turn to examinethe evidence relating to these requirements; the first is whether the claimantsconstitute a local descent group.(a) The claimants as a local descent group53. 'Wagiman' is the name of a language and of the group which owns thatlanguage. As noted in Volumes 1 and 2 of this Report, in this general region alanguage is associated with a particular territory, and the owners of the languageare affiliated to that territory; see for example, paras 41-2 of the Jawoyn (KatherineArea) Report. Unlike the Yubulyawun and Labarganyayn claimants, whoconstituted subgroups of the Wardaman and Nanggumerri language groups--each subgroup being affiliated to its own different and discrete part of thelanguage territory--the Wagiman claimants assert that their language groupconstitutes a single local descent group the members of which have commonspiritual affiliations to sites in the whole linguistic territory. It is well-establishedthat a language-owning group may be a 'local descent group' for the purposes ofthe Land Rights Act; see for example, paras 40-42, 49-50, 119-123, and 148 ofthe Jawoyn (Katherine Area) Report. Recruitment to the group must be on aprinciple of descent, the applicable principle being that which the claimantsdeem relevant.'Descent' is not limited to biological descent but means sociallyrecognised descent and thus encompasses adoptions into the group such as thatof George Huddleston (born a Mudbura) and Sandra McGregor.54. I note that the Wagiman claimants, like the Yubulyawun and Labarganyayn,use an eight sub-section system as part of their social organisation; see Appendix1 to Exhibit 1. However, the sub-sections appear to function only as terms ofaddress and reference, and to facilitate interaction with other groups; as theyplay no part in the Wagiman land tenure system, I will not deal further withthem. See by way of contrast paras 49-53 of the Nicholson River (Waanyi/Garawa) Report.Page 73

55. There was ample evidence of the structure of the Wagiman descent group.That evidence followed closely the general lines of the Labarganyayn evidenceset out in para.33 of Volume 2, and discussed at paras 35 and 36 of that Volume.From that evidence it is clear that the principle of descent which the claimantsdeem relevant and on which recruitment to the Wagiman descent group depends,is the cognatic principle of filiation. That is to say, members account for theirmembership of the Wagiman descent group by reference to their mothers and/ortheir fathers being Wagiman. Thus Lulu Talpalngali, when asked what mob shebelonged to, replied: 'I go back along father way'; that is, she is Wagiman becauseher father was Wagiman. In contrast, Mick Huddleston said:'Mother Wagiman,we got to stay Wagiman. I'm Wagiman'. Quite often, both parents of a claimantwere Wagiman, but in a number of cases only one was Wagiman. For the reasonsset out in paras 35-36 of Volume 2 I consider that the filiation principle reliedupon meets what the Land Rights Act requires.56. I accept that the Wagiman descent group as presented is a 'local' group inthat it is territorially-based; that is to say, the identity of the group as Wagimanis rooted in country which members of the group identify as Wagiman country.In the result, I am satisfied that the claimants constitute a local descent groupfor the purposes of the Act. Exhibit 55A shows that the claimants numbered167, set out in genealogies Nos.l-l0; some of these were interlinked and inreality there are only four genealogical trees, which may be loosely termed thefamilies Huddleston, Liddy, Muggleton and Talbot (with Douglas Jack and LuluTalpalngali).(h) Common spiritual affiliations to sites on the land57. The claimants must show that as members of their local descent group theypossess certain associations of a spiritual nature with sites on their land, andshare beliefs as to the spiritual significance of those sites. A practical approachmust be taken in that various factors (youth is an obvious one) which may haveinhibited individual members from acquiring the necessary knowledge of sitesand country to enable them to have those beliefs, must be taken into account.In that respect the approach must be fairly broad; nevertheless, what must beshown are more or less equal spiritual ties to the locality in question, and sharedbeliefs, so that it can fairly be said that the persons put forward as members ofthe group are spiritually affiliated to the sites.58. Evidence of the existence of these spiritual affiliations usually takes theform of showing that claimants regularly visit and care for the country theyclaim they traditionally own, and that they know the spiritual significance ofsites on their country. This knowledge in practice is a body of knowledge aboutsites, the activities of Dreamings at sites, and of the ritual behaviour necessarywhen visiting sites. That claimants possess such a body of knowledge is usuallysought to be established by their revealing, to some degree, aspects of it. That is,by identifying and locating the sites; by singing the songs which relate to theDreamings' activities; by telling the stories of the Dreamings' movements,activities and powers and indicating their significance in relation to humanbehaviour near sites and their consequences in relation to the landscape; bydemonstrating aspects of ceremonies which relate to the sites and Dreamings,such as the dances which re-enact the Dreamings' activities and the body paintingdesigns which represent the Dreamings; and by carrying out the proper ritualswhen approaching or leaving sites. The dilemma for the inquiry that in Aboriginalculture this type of knowledge is often required under strict sanction to be keptsecret, and is accordingly jealously guarded, is usually solved by imposing strictPage 74

estrictions on who can be privy to this type of evidence during the inquiry andby ensuring continuing secrecy. The horns of the dilemma are particularly sharpin this region, as the Daly River is said to be a place of'strong law' in thisrespect; see paras 41-2 of Volume 2 of this Report. I turn to consider theevidence presented to establish these common spiritual affiliations; of necessity,there must be some selection in the evidence mentioned.59. I noted earlier in dealing with the process of the inquiry that part of theevidence consisted of a videotape of a tour of sites during which the claimantsgave evidence; see Exhibits 13, 61A and 61B. I described in para. 8 the countrytraversed in that journey; see Appendix 3 for a general indication. There wasalso oral evidence given by claimants during the course of the inquiry. Theessence of the evidence is as follows.60. George Huddleston was clearly a most senior and knowledgeable claimant.At the old sawmill site at Claravale Crossing he identified a nearby billabong asWudbanyin (305), and the surrounding country as Wagiman. He explained thatJagutj (the Rainbow Dreaming) had passed through this site on its way north toYumbamyang (62), near Claravale homestead. There was evidence that variousclaimants had been born nearby, and that various Wagiman had died there; theywere named and the places where they were buried were pointed out. PaddyHuddleston said that all the Wagiman spirits, on death, went 'straight back toKalay' (287) because 'that's the main place, Dreaming place ... from beforeall the time' (Exhibit 13, p.17). His evidence was that Wagiman people areburied near their country 'then all their spirits go back to Kalay' (287). GeorgeHuddleston explained that because people had been born at Wudbanyin (305),trees should not be felled at that site; he said that he and Dolly Huddleston hada duty to see that this restriction was observed. Paddy Huddleston referred to amen's ceremony site nearby and said that ceremonies had been held there since1950.61. Proceeding south of the Daly on the Dorisvale road, at the billabongDugulmulmul (270) George Huddleston identified the site and the nearby sitesYumanyektpa (191) and Kugara-wubawu (276), named their Dreamings, andrelated the Dreamings activities at the sites. He said that Albert Billabong nearthe Daly was known in Wagiman as Yibambandaya (77) and he named itsDreaming. At Kakawariyn-wubawu (286), about five kilometres south of theClaravale Crossing, Paddy Huddleston identified the Yam Dreaming andrecounted its travels west and south. At Marinyin-wubawu (293), on BucketCreek, George Huddleston identified the Crocodile Dreaming and related itsactivities. Don Liddy said that the country thereabouts was Wagiman. At Jagalalyi(225) George Huddleston related the story of the Blue-tongued Lizard Dreaming.Within Dorisvale Station, at Yagpa-wubawu (306) on Crocodile Creek GeorgeHuddleston related the story of the Crocodile Dreaming. At Wutnung-wubawu(74) Paddy Huddleston named the Dreaming and explained that his uncle hadtaken part in a corroboree there.62. Right across in the south-west of the claim area on the edge of the sandstoneplateau, at Munyurrka (153) George and Dolly Huddleston identified the Dingo(Marralyn) Dreaming, recounted its travels south from Bupa (230) a Labarganyaynsite, and related its activities. They said that 'this country Wagiman'. AtWirritwirritjang (184) on Laurie Creek Dolly Huddleston and the children cleanedaround the site; they said that 'they look after it'. An account was given of theKingfisher Dreaming which had come from Larrdulmaya (145), a small gorgewith rock shelters and a waterhole. At Larrdulmaya (145), Paddy Huddlestonexplained that it was a ceremony place at which 'women have their own ceremonyPage 75

and we [the men] have our ceremony'. George Huddleston recounted the storyof the Firestick (Kunitjin) Dreaming, and Dolly Huddleston identified andexplained the paintings on the walls.63. On the east of the Daly and proceeding north-east on the Dorisvale road,George Huddleston gave similar evidence concerning sites and Dreamings atYumbamyang (62) and Kanawuniyn (208); he explained that strangers shouldget the Wagiman to wet their head (kalma kardal) before swimming there or 'byeand bye water smell him'. He gave similar evidence at Barrakbarrakjang (54)(Dead Horse Creek), at Yunumburugu (214), Yigarridawun (308), Nganmurrgu(299) and Jabal (269) (the Cullen Army Compound), where the Dorisvale roadmeets the Stuart Highway.64. At Bumji (4) (Ban Ban Lagoon, near the Oolloo homestead) Don Liddytold the story of the Rainbow Dreaming. He said:He didn't damage us, nothing, because this our country. He don't kill Wagimanpeople . . . but stranger, he'll kill him yes. (transcript, p.831).There was evidence that two of the claimants were born there and that DouglasJack's father and uncle were buried nearby. At Japiyn-wubawu (274) (LeichhardtWaterhole) west of the Daly and Jinduckin Creek, Don Liddy identified theDreaming and said it was Wagiman country. At Jirdit-wubawu (277) furthersouth, George Huddleston identified the Quail (Jirdit) Dreaming, recounted itsstory, and identified the country as Wagiman, saying that in that area he had'footwalked everywhere, carry spear'; and that it was a 'short-cut' from Walangambi(179) (Reedy Hole on Jool Chung Creek to the north) to Dorisvale, asindeed it appears to be (see Appendix 10). At Jundakiyn (42), a red and whitesandstone cliff between Bamboo and Jinduckin Creeks (shown on Appendix 8),George Huddleston identified the Taipan (Yaratjin) Dreaming and related howpoison obtained from there was traded. He told how the White SandstoneDreaming had travelled there from Bupa (230), a Labarganyayn site to the west,and gave an account of the travels of the Poison Dreaming to Mataranka,Murranji and back. He explained that persons should not obtain food from thatsite or camp closer to it than Marbeena Yard, some seven kilometres to the west,because 'flood bring him up, that ... poison. Might be all dead. Morning noone wake.' To the west, at Marbinyang (38) he related the travels of the DreamingKunyukpan (Python) from Bupa (230); he said that before the time of thestockmen an old Wagiman, Imbindilma, had lived there for many years, andthat Dolly Huddleston was Imbindilma's step-daughter.65. At Douglas Hot Springs the evidence during the videotape related to otherplaces, well to the south. George Huddleston identified the Moon Dreaming atKantawatjang (48), at the junction of Stray Creek and the Daly River, andrecounted its travel across the Daly to Yijung (47) (Ejong Waterhole), down riverto Wutnung(l88) (Banyan Waterhole), back upstream past the Claravale Crossingto Yumanyektpa (191) and thence further upstream to the Flora River and upthat river and Waterbag Creek. He said that the Moon Dreaming:Went to that other place up at Oolloo side ... we can't go over there. That'sdifferent, different country. (Exhibit 13, p.141).George Huddleston and Don Liddy also gave the story of the Flying FoxDreaming at Wamu-wubawu (303), Fish Hole on Stray Creek. George Huddlestonsaid that that was Wagiman country and strangers had to be introduced there byWagiman, by head-wetting. Don Liddy identified Jeri Jeri (275), further northon Spring Creek, as a place made by a falling star (Karingal). Paddy HuddlestonPage 76

told how the White Eagle Dreaming (Kunangatngat) picked up the Barramundi(Manamyayn) Dreaming--according to George Huddleston (at transcript p.595)that took place at Kandawakjakiwi at the junction of Stray Creek and the DalyRiver--and took it to Umbrawarra Gorge; there he ate it, leaving the scaleswhich can now be seen in the shape of flat rocks. At Pine Creek PaddyHuddleston said that his grandfather took him 'all over' the Stray Creek block:I was walking that country on foot . . . My grandfa used to tell me . . . everysideof spring or billabong. . . He gives me the knowledge, to go in that country all thetime. (transcript, p.860).66. Within Pine Creek, at a small fenced site Belpariyn-wubawu (266) variousWagiman claimants recounted details of the clothes-burning Ceremony conductedwhen Wagiman die.67. George Huddleston related the movement of the Kunyukpan (Python)Dreaming through to Barnjam in Maiali country. He sang the song for theDreaming in Wagiman and said'that's my country, right up to there [that is,Barnjarn]' (transcript, p.576). At Balariyn (265) Paddy Huddleston showed wherethey obtained white ochre from a creek near Kybrook to use for body paint fordancing; he said that they traded it (Yulun) to the Punjari in the south (transcript,pp.598-600).68. At Umbrawarra (222), at Umbrawarra Gorge, George Huddleston gaveaccounts of the Manamyayn (Barramundi) Dreaming and a separate Dreaminginvolving the Chicken Hawk, which came from Douglas Hot Springs. PaddyHuddleston said that his grandmother used to tell him 'to look after this place';he said that 'Umbrawarra' was a Wagiman word. Dolly Huddleston explainedthat she had walked around Umbrawarra Gorge with her parents and later withher husband and children. Elsie Talbot testified at Pine Creek that she had neverbeen to Umbrawarra Gorge before going there during the inquiry.69. North-east, at Karingal-wubawu (281) south of Four Mile Creek, DollyHuddleston conducted a head-wetting ceremony and Paddy Huddleston explainedthat this was to ensure 'the water will be here all the time'. George Huddlestonsaid that if the ceremony was not conducted 'the star look for that man . . . hesmell him . . . he get sick.' (transcript, p.677). At Pine Creek, Paddy Huddlestonsaid 'even all the little Wagiman kid' could wet the head of strangers at Karingalwubawu(281), because:That's what we learn them. They have to be learn then to go through them country.(transcript, p.863).70. At Lorrgla (288) near Hayes Creek, Douglas Jack related the activities andmovements of a Dreaming. He said that the country there was 'for all theWagiman' (transcript, p.687), naming some of them, now deceased. It appearedthat these Wagiman had worked on the nearby tin mine where they 'only getpaid opium' (transcript, p.689). Lulu Talpalngali agreed that a lot of Wagimanhad camped there and said that she used to go there from old Douglas, forWagiman corroboree (transcript, p.691). Douglas Jack said that the Wagiman'old man Bleucher' was buried there.71. On the Oolloo road at Kojar (282) (Black Stallion Creek) Douglas Jack toldthe story of the Wajarru (Bat) Dreaming. He said he used to muster there withPaddy Liddy, as had Paddy Huddleston. Lulu Talpalngali said she used to huntthere 'and go back home' (transcript, p.701). Paddy Huddleston and others saidthat this was Wagiman country. At Pine Creek Paddy Huddleston said of DouglasStation:Page 77

Three brothers had that station--Tom Liddy, Jack Liddy and Mick Liddy. We wentto walk on that country, those three boss [this was about 1952]. Sometimes we don'tlike to stay Claravale; well, we go back to Oolloo. We don't like to stay at Oolloo, wego back to Claravale or Dorisvale. We walk all that country.At Middle Creek on Douglas Station Douglas Jack told the story of the travelsof the Yarralayn (Dingo) Dreaming; north of the Douglas Crossing he identifiedTunurr (215) (St Patrick's Swamps) and told the story of its Dreaming, Muniyn(Rock God).72. At Douglas Hot Springs Nature Park Douglas Jack related the stories ofvarious Dreamings-Yunumburugu (71) (Red Kangaroo), Ngalmunggu (BlackKangaroo), Walang (Young Girl), Tjinamiyn (Little Bat) and Pulwaran (BambooMan)-and their activities at the Hot Springs; he sang some public Wagimansongs (Wanga). He said that these were the Dreamings and the Wagiman had toprotect these species and look after these places (transcript, p.743). PaddyHuddleston said that Douglas Hot Springs Nature Park was Wagiman country.At various places in the Park, Douglas Jack carried out the head-wetting ritualcalling out in the Wagiman language to the Jagutj (Rainbow Serpent) Dreaming'I been bringing all your mob', and again calling when leaving (transcript, p.796).He explained the purpose, and said that only Wagiman could carry out the ritual(transcript, p.748). He recounted various stories of the malign power of Jagutj(Rainbow Serpent) at Tjuwaliyn (302) (the Hot Springs).73. George Huddleston gave a lengthy account at transcript pp.867-870 of theTjinamiyn (Bat) Dreaming from Tjinamiynju, its interaction with the Jagutj(Rainbow Serpent) and Kangaroo, and its journey finally to Kimul (118), a siteon the Fitzmaurice River south-west of Area I. This was an account of one ofthe most famous of all Aboriginal myths; see another Wagiman account of itrecorded by Stanner in the 1930s on the Daly River, in (1960) 31 Oceania 233at p.239. He said it was Tjinamiyn who gave the Wagiman their language(transcript p.871), and that Kimul was a 'Wagiman place'. The two young girls(Mararaparnta) referred to in this myth, were said to have travelled to DouglasHot Springs before that water was hot; see transcript pp.871-874. GeorgeHuddleston said that the Wagiman get their big noses from the Tjinamiyn. Thefollowing evidence was given at pp.874-5:MR BLOWES: But before that Tjinamiyn been come up were there any black fellowin this country that is now Wagiman?GEORGE HUDDLESTON: No, only Dreaming back there. Dreaming back there.Wagiman. This been Jawoyn. Jawoyn, Maiali, this country.MR BLOWES: Yes? In that country now?GEORGE HUDDLESTON: Yes. This country here.MR BLOWES: Yes, and what did he do?GEORGE HUDDLESTON: They can come up. Wagiman can come. Wagiman canstay, tell him. We tell our own land, they said. All right. We stay here. That's Jawoyn,Maiali there. Well, we'll leave that Jawoyn. All right too, that Maiali. They leaveit . . . that land other side across the river here along Maiali.It would appear that the context was confusing for the witness who may havethought the question related to 'this country' where he was giving evidence; thatis, Pine Creek.74. There was evidence at Kybrook in the form of dancing and singing by someof the Huddleston children and the older people; these related to the activitiesof the Tjinamiyn (Bat) Dreaming.Page 78

75. The foregoing is intended to show the thrust of the evidence. It can be seenthat a very considerable amount of evidence was given in relation to the differentparts of the claim area, by way of accounts of the movements and activities ofDreamings, stories, myths, songs and the need for ritual approaches and departuresfrom sites associated with particular Dreamings. Over 90 Wagiman sites in allwere identified during the course of the evidence; see the (incomplete) list inExhibit 92. Senior claimants stated that these Dreamings and the stories and thecountry associated with them belonged to 'all the Wagiman'; thus PaddyHuddleston said:We got all same story . . . all the Wagiman . . . from little boy to middle age likeme--like that. We still have it. We have it all the time. . . . We was here all we lifeand we used to take them little kids, go around that country, . . . Wagiman country,show them little kid--from little one right up, . . . We still having that all the time.76. This type of generalised statement is misleading and inaccurate. It is clearthat the Huddleston family has remained closer to country than some of theothers; the statement has some validity in relation to the witness' own family,but is not valid for all the families put forward as members of the Wagimanlocal descent group.77. I consider that these accounts show that certain members of the Wagimanlocal descent group have associations of a spiritual nature with sites in variousparts of the claim area. Bearing in mind matters inhibiting the acquisition ofknowledge of country, such as youth, and taking the broad practical approachreferred to in para.57, I consider that it cannot be said that the evidenceestablishes that 'all the Wagiman' are spiritually affiliated to sites on the claimarea, in the sense that they all have more or less equal spiritual ties to these sitesand possess shared beliefs in their significance. This conclusion is perhaps aninevitable consequence of a claim put forward by 'all the Wagiman', when infact the different families which compose that local descent group are not a fairlytightly-knit group of people bound by continuing associations to the land, butare dispersed and scattered, some of them pursuing very different lifestyles inplaces far away from the claim area. What the Land Rights Act contemplateswhen it defines 'traditional Aboriginal owners' is spelled out by Brennan J. inthe Meneling case; see para.82 below. The retention by claimants of theirAboriginal traditions with respect to the land they claim lies at the root of thestatutory conception.78. The 66 claimants in genealogies Nos.8-l0 are the descendants of the seniorclaimant Kitjula (Elsie Talbot) in genealogy No.4; a brief sketch of her personalhistory is at para.42. There is nothing in her life history or in the evidenceduring the inquiry to suggest that she possesses the knowledge of country necessaryto found the spiritual affiliations to sites which the Act requires of traditionalowners. Although it is usual in land claim inquiries for a few senior members ofa claimant group to speak for the rest, as was done here, that practice cannotprovide a cloak for a senior claimant's lack of knowledge of the spiritual aspectsof country. The spiritual affiliations to sites must be shown to be held in commonby the members of the group. The lack of opportunity for Elsie Talbot to acquirethe necessary knowledge clearly arose from the circumstances of her life; she wasnot in contact with Wagiman country or other Wagiman for many years, afterher childhood. Her lifestyle has proceeded on a different path to those who'would be deprived of a stable base of life, culturally and socially, if they werenot permitted their traditional access to and use of the land'; it is persons whosatisfy that description with whom the Act is concerned, as Brennan J. makesclear in Meneling (see para.82). Further, there is nothing in the evidence toPage 79

suggest that the widely scattered descendants of Elsie Talbot thus far haveacquired, or tried to acquire, the necessary spiritual knowledge of country; theattendance of some of them during parts of the inquiry indicates enthusiasm forthe claim, but that is not to the point.79. The lifestyles of the claimants in genealogies 8-10 (Exhibit 55A) thus farappear to have led them in a different direction to those to whom access totraditional land remains a necessity,'a stable base of life'. They may of courseset about acquiring the necessary knowledge; as Brennan J. put it, the strengthof their spiritual affiliations and responsibility in respect of the land may 'wax'in the future. The categories of traditional owners are not closed.80. Elsie Talbot and the claimants in genealogies 8-10 constitute a distinctsegment of the Wagiman local descent group. I am satisfied on the evidence thatthe other claimants put forward as members of that descent group, the Huddleston,Liddy and Muggleton families, and several of the claimants in genealogy No.4(Douglas Jack, Lulu Talpalngali and her son and the children of Amurrak (Lizzie)and Jinggaya (Ruby))-can fairly be said to have common spiritual ties to sitesin the different parts of the claim area, and to possess shared beliefs in relationto those sites. The senior members of those families have led a more traditionallifestyle and the younger members will be able to acquire the necessary knowledgethrough their senior members. As Brennan J. makes clear in Meneling, measuringthe strength of these common spiritual affiliations is an essential part of theinquiry into whether traditional ownership has been established; that aspect canhowever be more conveniently considered when dealing with the general questionof strength of attachment, though normally that question is dealt with after aformal finding of traditional ownership; see paras 97-111.81. In the result, the claimants, considered as a local descent group consistingof'all the Wagiman', fail to satisfy a fundamental requirement of the Act inrelation to 'traditional Aboriginal owners' in that not all the members of thatgroup have common spiritual affiliations to a site or sites on the land. That doesnot end the matter; s.50 (1) (a) (i) of the Act requires that the traditional Aboriginalowners of the land claimed, if any, be ascertained. It is clear that those membersof the Wagiman local descent group found in para.80 to have common spiritualaffiliations to sites on the claim area, also constitute a local descent group withinthe meaning of the Act. I turn to consider whether those persons, considered asa local descent group, satisfy what the Act next requires of claimants seeking toestablish traditional Aboriginal ownership; hereafter any reference to 'theclaimants' is a reference only to those persons.(c) Primary spiritual responsibility for sites and land82. The Act requires that the spiritual affiliations discussed in paras 57-81 befurther examined with a view to determining whether they are such as to placethe local descent group which possesses them under a 'primary spiritualresponsibility' for sites and land. That examination should I think be conductedin the light of the analysis by Brennan J. in the Meneling case at pp.357-9, ofwhat the Act requires to establish traditional ownership. His Honour first set outat pp.356-7 the late Professor Stanner's graphic explanation of the profoundsignificance to an Aboriginal group of its country; see White Man Got NoDreaming at p.230. He concluded that this explanation rendered 'intelligible andlogical the statutory definition fin the Act] of "traditional Aboriginal owners";, adefinition which reflects the spiritual and cultural significance of land forAboriginals'. In the light of what Stanner had said, his Honour then proceededat pp.358-9 to examine the statutory definition:Page 80

Aboriginal ownership is primarily a spiritual affair rather than a bundle ofrights. . . . the Act thus requires [the Commissioner] to evaluate the spiritual affiliationsand spiritual responsibility of any local descent group of Aboriginals who may claim tobe traditional owners of the land in question or who may appear to have a traditionalclaim to that land . . . (p.358)[The Commissioner’s inquiry [into spiritual affiliation to sites and spiritual responsibilityfor sites and land] is a step in the restoration of land to Aboriginals who have retainedtheir Aboriginal traditions with respect to that land, and the inquiry which he makes isfor the purpose of determining whether the primary criterion for the granting of Crownland . . . is fulfilled. That criterion--the existence of traditional Aboriginal owners--is a test of need as much as it is a test of entitlement. The strength of the putativetraditional owners' spiritual affiliation and responsibility is the measure of the extent towhich the deprivation of that land would leave or has 'left [the] local band bereft of anessential constant that made their plan and code of living intelligible'. [the quotation isfrom Stanner].As Aboriginal tradition within a local descent group is eroded or renewed with thepassing of time, so the strength of the group's spiritual affiliations to sites on theirland and their spiritual responsibility for those sites and for that land may wane orwax. When spiritual affiliation and spiritual responsibility are the determinants oftraditional Aboriginal ownership, a finding of ownership necessarily involves an evaluationof the strength of that affiliation and responsibility. Thus it is that s.50(3) provides,inter alia, that 'In making a report in connection with a traditional land claim theCommissioner shall have regard to the strength or otherwise of the traditional attachmentby the claimants to the land claimed . . . The Commissioner is therefore bound to findwhether the local descent group's spiritual affiliation with its sites and responsibility forthose sites and for its land has remained so strong or has had its strength so renewedthat it is right to regard that group as traditional Aboriginal owners. It is implicit in afinding of traditional Aboriginal ownership that the local descent group would be deprivedof a Stable base of life: culturally and socially, if they were not permitted theirtraditional access to and use of the land. (emphasis mine).It is clear from Brennan J.'s analysis that before there can be a finding oftraditional ownership, the strength of both spiritual affiliations and spiritualresponsibility must be evaluated.83. Responsibility connotes accountability, and, in its context, the accountabilityof traditional owners is to the ancestral Dreamings, to the group members'forebears and descendants, and to other Aboriginals who consider they wouldsuffer if the Dreaming creates havoc because that which the owners' responsibilityrequires to be done is not carried out. Claimants are required to prove that theyhave a spiritual responsibility for the sites and land stemming from their spiritualaffiliations to sites, and that their responsibility is more important than that ofany other person or group. It has not been suggested in this claim that any groupother than the claimants asserts any spiritual responsibility for the sites or landin question, other than in the 'box-up' area shown in Appendix 2 claimed jointlyby the Wagiman and the Labarganyayn; there appears to be no dispute betweenthose two groups that they jointly share primary spiritual responsibility in thatarea.84. To establish that claimants are under a primary spiritual responsibility,evidence is usually adduced of what they actually do to discharge the responsibilitythey allege they bear. This is a practical approach. The proof is seen in theconduct. This evidence usually consists of senior male and female claimantsperforming rituals at sites and explaining their purpose and effect; performingdance and explaining its meaning for the Dreaming; painting their bodies withthe particular designs for Dreamings and explaining their meaning; demonstratingunder suitable conditions of secrecy other aspects of ceremonial life whichPage 81

celebrate the sites and Dreamings, including the display of sacred objects andthe singing of songs, and explaining the meaning; and explaining how they carefor the sites, and maintain and protect them. Evidence is then usually given thatthe responsibility for sites which doing these things manifests, is discharged bythe claimants by the regular visiting, inspection, checking and clearing of sites,and their participation in the performance of ceremonies which celebrate thesites and country. Evidence that the senior and knowledgeable members of thegroup teach the young their responsibilities towards sites and Dreamings is alsoseen as an important element in demonstrating the responsibility which thegroup bears, as it goes to establish that the responsibility will continue to bedischarged by the group through succeeding generations. Evidence that memberscontinue to be put through the traditional rites of passage indicates themaintenance of norms in which the traditional relationship of the group to itsland is founded. It can De seen that much of the evidence of this type is alsorelevant to establishing spiritual affiliation to sites and the strength of traditionalattachment; as Brennan J. explained in Meneling, these concepts are intertwined:a finding of ownership necessarily involves an evaluation of the strength of thataffiliation and responsibility. (Meneling, p.359).85. In seeking to establish primary spiritual responsibility in this claim particularstress has been laid on the claimants' ritual wetting of the heads of newcomerswhen approaching Wagiman sites, and on other rituals observed when approachingor departing from sites. There were many demonstrations of head-wetting ofnewcomers at various sites. At pp.15-16 of Exhibit 85C Professor Sansom listsin a series of 14 points the significance of the ritual of head-wetting for spiritualresponsibility for sites. The ritual serves permanently to introduce a newcomerto the Dreaming, which otherwise might harm that person or the region. Thisintroduction can only be by a traditional owner, who has himself been introduced,though such a person may be a child. This aspect of responsibility has also beenadvanced in other claims in this general region, but has not there sought to begiven quite the same prominence or significance. A question arises as to whetherthe ritual of head-wetting warrants the weight sought to be placed on it in thisclaim, as proof of discharge of spiritual responsibility.86. The Act conceives Aboriginal ownership as 'primarily a spiritual affair', asBrennan J put it; that is, traditional owners are seen as primarily in a spiritualrelationship with their land, as opposed, for example, to an economic relationship.The existence of primary spiritual responsibility in other claims has usually beenaffirmed by evidence of the type set out in para.84 in which stress was laid onthe performance of ceremonies and rituals celebrating sites and Dreamings,explained by mature persons who alone possessed that knowledge. This is becausein Aboriginal society, much of the knowledge of ceremony and ritual relating toland which concerns the spiritual relationship between the traditional owner andthe land, is esoteric, closely guarded by the older, initiated persons, and graduallyacquired by members over a lifetime. The emphasis in this inquiry on establishingprimary spiritual responsibility for sites and land by a ritual which could beperformed by a claimant child, tends to point to a present impoverishment ofceremonial life amongst the claimants. The conditions of life at Kybrook maywell be inimical to the maintenance of a strong ceremonial life; it is, however,the claimants who live there who appear to be those most involved in ceremony.While bearing in mind the 'strong law' on maintaining secrecy in relation toceremonial matters in the Daly region, in the case of the Wagiman claimants Ido not think the comparative lack of evidence of ceremonial matters is anexample of'strong law' concealing an active ceremonial life. The impact ofhistory has clearly been severe on the Wagiman, and the present emphasis onPage 82

the head-wetting ritual is probably a consequence of that, an adaptation designedto ensure continuity of links with country.87. There was nevertheless evidence in restricted session at Kybrook relating tothe performance from time to time of a ceremony from Jundakiyn (42) 'to makea man'; see restricted Exhibit 58A. The conduct of initiatory rites of this typeconstitutes a central feature of traditional Aboriginal society, bearing directly onthe continued strength of traditional life, and thus on the spiritual responsibilityfor sites and land. There was also evidence in restricted session relating to theWagiman body paint for Dreamings. Senior female claimants gave evidence inrestricted session of a women's ceremony for young girls; see restricted Exhibit58B. In referring to Kalay (287) George Huddleston said:Wagiman been have him ceremony all the way and we still carry him, ceremony.(Restricted Exhibit 58A, p.13).He said that if the grant were successful the place for ceremony might be Kalay(287) in 'Wagiman country'. The evidence was that the Wagiman also take partin the Karwadi ceremony, a widespread initiation ceremony with a song cycle inwhich country is celebrated; no details were given.88. There was some evidence that the younger members were taught about thesignificance of sites by older claimants, who regarded this teaching as a duty.Much of the evidence of teaching the young in fact related to foraging, thoughsome related to other aspects of traditional life; see, for example, evidence of theparticipation of children in the clothes-burning ceremony on the death of aWagiman. Some of the senior claimants explained that their parents had toldthem to 'look after' certain places; for example, Paddy Huddleston said that hehad been told to look after Umbrawarra Gorge. Evidence of this type, withoutevidence as to what has been done to carry out the duty to 'look after', is notvery helpful. Evidence of the teaching of younger members is usefully summarisedat pp.5.9-5.13 of Exhibit 96. It is sufficiently established that some of the seniorclaimants see teaching about sites as a duty, and carry it out.89. There was evidence that country was cleared by burning'to give us countryall the time life', as Paddy Huddleston put it (Exhibit 13, p.68). This evidencedid not seem to be particularly related to sites but there was a demonstration ofclearing around the site Wirritwirritjang (184) on Laurie Creek during the sitetour there; see para.62.90. A further aspect of claimants' spiritual responsibility for sites is theirobligation to protect the sites from interference by strangers. There were manyexpressions by senior claimants of their 'worry' about the sites, in this regard.Douglas Jack at the old buggy crossing into the Hot Springs perhaps expressed amore general concern for country when he explained that he had muttered 'poorfellow, my country' as he approached the crossing because:I been sorry when I been come in here . . . I been leave him for a long time. I neverwalk around here. I been stop Hayes Creek all the time. I been come here. I beensorry. (transcript, p.808).Further evidence of claimants' general concern for sites was shown by the factthat they had sought to protect certain sites near Pine Creek, by utilising thelegislation relating to sacred sites.91. The claimants gave evidence that they took care of their country by visitingit constantly. According to Paddy Huddleston 'all the Wagiman' went out everyweekend in the Kybrook bus:. . we do Oolloo, might be next week we come here [Umbrawarra Gorge], might benext weekend we go up Dorisvale--three places we do every weekend.Page 83

I consider that his evidence generally has to be treated with some reserve. Thereis a useful collection of the evidence dealing with this aspect of'worrying forcountry' at pp. 5.16-5.19 of Exhibit 96.92. In summary, despite some apparent impoverishment of ceremonial lifeamongst the claimants, explicable by the effect of history upon the Wagimanpeople, there was sufficient evidence to establish that the claimants' spiritualaffiliations to sites on the various parts of the claim area were such as to placethe group under a primary spiritual responsibility for the sites and land, (otherthan in the 'box-up' area, where it was clearly shared). An evaluation of theextent to which that responsibility is discharged by the claimants, as with anassessment of the strength of their spiritual affiliation, is more conveniently madewhen considering the strength of traditional attachment; see paras 97-111. I turnfirst to the next requirement of the Act which the claimants must satisfy.ENTITLEMENT TO FORAGE93. The Act requires that to qualify as traditional owners the members of thegroup must prove that they are entitled by Aboriginal tradition to forage as ofright over the claim area. Claimants usually seek to prove this entitlement byshowing that in practice they have foraged freely during their lifetimes over theland claimed without seeking permission from other Aboriginals to do so; andby giving evidence that other Aboriginals have to seek permission from theclaimants, before foraging over the land claimed.94. As is usual, there was much evidence of the practice of foraging. A fewexamples will suffice. At Wudbanyin (305) at Claravale Crossing Dolly Huddlestonpointed out where to find yams and :he fruit of the bottle tree (kuruwan), andGeorge Huddleston explained the use of ironwood for the hook spear (naramatj).At Benang (63) in the same area Fred Muggleton explained that turtle, lily andmussels could be obtained there though 'with your bare eyes you can't seeanything'. Don Liddy recounted foraging for bush tucker at Larrdulmaya (145);he had lived there for months at a time when he ran the horse camp there as astockman on Dorisvale. Dolly Huddleston explained at Larrdulmaya (145) theneed to burn grass, to trap game. Lulu Talpalngali identified bush tobacco(malmalmatj) at Japiyn-wubawu (274) (Leichhardt Hole, west of Jinduckin Creek)and explained how to prepare it. At Junatja (44) on Jinduckin Creek sheidentified the pandamus (ngunyin) and explained how to prepare and cook the'cheeky yam' (mugatyj). There were countless other instances; some of thisevidence is usefully collected at pp. 6.3-6.5 of Exhibit 96. It was obvious that allthe senior claimants have an extensive knowledge of how to locate and use thenatural resources of the land. The claimants said on many occasions that theydid not have to ask the permission of any other Aboriginal group to forage inthe claim area, and that other groups should seek Wagiman permission firstbefore they came into that country to forage. There was also much evidence thatthe claimants successfully taught their children how to hunt and how to locateedible foods in the bush.95. It is clear both from the many practical demonstrations and from theevidence of the claimants that they have foraged freely over the claim areawithout seeking permission from any other Aboriginal group; I conclude thatthey are entitled by Aboriginal tradition to forage as of right over the claim area.96. This concludes the examination of the evidence adduced by the claimantsto show that they are 'traditional Aboriginal owners' in terms of the Act, exceptfor the evaluation of the strength of their spiritual affiliations and responsibility.Page 84

It is convenient to make this evaluation when considering generally the claimants'strength of traditional attachment to the claim area; to that I now turn.STRENGTH OF TRADITIONAL ATTACHMENT97. The effect of s.50(3) of the Act is that the strength of the claimants'traditional attachment to the claim area must be taken into account and givenweight as a central element in making a report on the claim. As Mason J. pointedout in Meneling (at p.337), there is a 'close relationship between that report[required under s.50 (1) (a) (ii) of the Act] and the functions of finding [traditionalownership under s.50(l)(a)(i)l and recommending [under s.50(l)(a)(ii)l.'Further, as Brennan J. pointed out in Meneling (at p.359), in order to determinewhether a finding of traditional ownership should be made, it is necessary toevaluate the strength of the spiritual affiliations and responsibility which are thedeterminants of traditional ownership; see para.82. To assess the strength oftraditional attachment involves that evaluation, as well as taking account of otheraspects of tradition in the present lives of the claimants.98. To assess traditional attachment is to examine something that is to anextent subjective; it involves obtaining an understanding of the feelings andattitudes of the claimants in an attempt to see things as they see them. Forexample, at Wutnung-wubawu (74), a waterhole on Dorisvale, Don Liddy said:Do you know why I keep coming back this country here? It's because it's reallyWagiman country. It belonged to my father and aunty here, and all my cousins here--family. Because my father died here, that's why I keep coming back. No matter whereI go work, might be some other station, i still remember, come back here and wannalook my father's grave. . . . He died here. And my grannie. . . . No matter where Igo, I come back and see this; looking after this country, all the time. Before that, thisused to be . . . this was bush. No station was here. Nothing. And all people use tocamping here all over this place. Right down. All this country. . . . That's what myold grandfa used to tell me too. . . . Old grandfa used to take us every place when Iwas a baby kid, you know ... I still got it in my memory all the time ... thewhite people ... came up hunt, they bin chase all the blackfella away from thiscountry. . . . Well, that's all I can say. (Exhibit 13, p.45).99. While there is no satisfactory yardstick by which such a subjective andintangible concept can be measured, para.221 of the Nicholson (Waanyi/Garawa)Report sets out some objective matters an examination of which can assist inmaking that assessment viz.:... the performance of ceremonies associated with sites ... and the Dreamingtracks traversing [the land]; the observance of ritual;... the maintenance of theclaimants' social system; the transmission of knowledge of spiritual matters and of theland's natural resources to younger members; and the use of land by foraging.Many of these matters have already been discussed, as they bear in differentways on the statutory requirements for traditional ownership; several of themare relevant to an assessment of the strength of spiritual affiliations andresponsibility.100. In addition, evidence of visits by the claimants to the land and of theiruse and occupation of it from time to time over the years may serve to strengthenmore personal expressions of traditional attachment. The extent to which claimantshave endeavoured to retain some physical connection with the land over theyears clearly has a bearing on the strength of their attachment. Other mattersindicative of traditional attachment include expressions of'worrying for country'and of a desire to be buried in country, and evidence of travelling to country forrecreation purposes.Page 85

101. Counsel for the Northern Territory Government submitted that the factthat most of the claimants have chosen to live at places away from the claimarea, and none of them live on it, is itself indicative of a lack of traditionalattachment; see generally Exhibit 101A. As to the significance of claimants'chosen place of residence in relation to traditional attachment, I note that inpara. 119 of the Uluru Report Toohey J. said:The assessment of the strength of traditional attachment is not made any easier whenthe members of a land-owning group no longer live on their traditional country,whether that dispersal was voluntary, involuntary or a mixture of both. When themovement of Aboriginal people from their traditional country has been forced uponthem, it may seem especially ironic that their claims should be weakened by absenceof traditional attachment. . . . the strength of traditional attachment . . . is a factorwhich must be considered by reference to the claimants themselves.The thrust of this observation is that while chosen residence outside country isa relevant factor, its significance must be viewed in the historical perspective,and evaluated in that light, in the light of the location and availability of thenecessities of twentieth-century life, and in the light of the other matters mentionedin paras 99 and 100 which are also relevant to the particular claimants' strengthof attachment. In the case of Aboriginal stockmen it is well established that afterthe introduction of equal wages in the late 1960s, many were compelled to moveto the towns; it appears that some of the claimants at some stage lived in acompound in Pine Creek and existed on Government rations.102. It is 'traditional attachment' with which the Land Rights Act is concerned,not an attachment founded on matters personal to a particular claimant or onsome basis other than tradition, such as hope that economic gain will flow froma grant. I accept that the concept of'Aboriginal tradition' in the Act connotes:... systems of belief held in a public sense today, and which reflect modernadjustments to changes in demography, residence and economy, to the long-termEuropean presence on the land, and to the many other facets of European/Aboriginalinteractions for a hundred years or more. (Nicholson (Waanyi/Garawa) Report, para.222,citing Dr A.K. Chase).This reflects the importance of considering the evidence of the strength of theclaimants' traditional attachment in the perspective provided by their history.103. The claim area embraces four separate areas of land; it is convenient toconsider them separately when dealing with questions of strength of spiritualaffiliations and responsibility, and, more generally, with the question of strengthof traditional attachment.104. I deal first with Area 2 (Douglas Hot Springs Nature Park); see Appendix2. The leading witnesses in relation to Area 2 were Douglas Jack and LuluTalpalngali. Their particularly keen interest in Area 2 clearly stemmed from theirown close associations with Douglas Station where they had been brought up.Lulu Talpalngali had spent a considerable part of her life working on the station(see para.40) while Douglas Jack was born there and had spent the greater partof his life working there (see para.39). It is clear from the evidence, open andrestricted, that they both had deep spiritual affiliations to the sites on Area 2and accepted spiritual responsibility for those sites. It is not uncommon in landclaims for an individual claimant, or a few claimants, to have a particularlystrong association with a particular part of the claim area; sometimes this arisesbecause of personal links of conception, or the death of a close relative in thatplace. It is also not uncommon for the spiritual responsibility of a claimantgroup to be discharged on behalf of the group by a particular claimant or a fewclaimants. It is necessary that the spiritual responsibility is established to be thatPage 86

of the group, and that all the claimants possess spiritual affiliations to the sites.I consider that the evidence of Douglas Jack and Lulu Talpalngali in particular,viewed in this light, establishes that the spiritual affiliations of the claimants andtheir spiritual responsibility as a group towards the sites and land in Area 2 arestrong. As to the general strength of their traditional attachment I consider thatthe other relevant factors--foraging, the express desire by several claimants tolive on Area 2, the expressions of concern for it, the evidence of visiting Area 2in the past, the claimants' knowledge of it and the evidence of the transmissionof knowledge to children-established that the traditional attachment of claimantsto Area 2 is strong.105. I turn next to the contiguous Areas 3 and 4 on Appendix 2. Some of theclaimants' evidence relating to Area 3, Umbrawarra Gorge Nature Park, and itsgeneral area, appears at paras 67-69, while their evidence relating to Area 4appears at para.63. I do not consider that the evidence relating to UmbrawarraGorge or Area 4 establishes that the claimants' spiritual affiliations andresponsibility for the sites in Areas 3 and 4, or in that general area, are strongor that they discharge that responsibility in relation to those lands. I also considerthat the more general evidence bearing on the claimants' attachment to Areas 3and 4 does not establish that their traditional attachment to those areas is strong.In the words of Brennan J. in Meneling at p.359 I do not find on the evidencethat the claimants 'would be deprived of a stable base of life, culturally andsocially, if they were not permitted their traditional access to and use of thoselands'.106. Finally, there is Area 1 on Appendix 2, a large irregular area. Followingthe way the claimants' evidence emerged, Area 1 may be conveniently consideredin three parts: the land east of the Daly River, the land east of Dorisvale Station,and the land west of Dorisvale.107. The part of Area 1 east of the Daly River comprises the 'Stray Creekblock' (Portions 1466-1468) and Portion 1469; see Appendix 4. Some of theevidence relevant to the claimants' spiritual affiliations and responsibility tothose lands is set out at paras 63 and 65. Much of the claimants' evidencerelating to the 'Stray Creek block' was of mustering cattle there, or footwalkingthrough it: see, for example, paras 33, 37, 41 and 45. I do not consider that theclaimants have established strong spiritual affiliations and responsibility, or thatthey discharge that responsibility, in relation to either the 'Stray Creek block' orPortion 1469; nor have they established a strong traditional attachment to thoseareas.108. As to that part of Area 1 east of Dorisvale marked G.L. 2074 on Appendix4, there was evidence of claimants' strong common spiritual affiliations and ofspiritual responsibility in relation to the cluster of sites shown in Appendix 10in the north of that area; see, for example, paras 60 and 61. There was littleevidence relating to their affiliations or responsibility towards sites in the rest ofthe area east of Dorisvale. Most of the sites shown in Appendix 10 as being inthe rest of that area, were not in fact mentioned in evidence. When the siteswith which claimants' evidence deals are clustered in one part of a claim areathe question arises of identifying the land to which the sites can be said to relate.I turn to examine this aspect.109. The definition of'traditional Aboriginal owners' in the Act speaks of a'site on the land' to which members of the claimant group must have commonspiritual affiliations. The group's spiritual responsibility must be 'for that siteand for the land'. I agree with the views expressed by Toohey J. in paras 68-71of the Warlpiri and Kartangarurru-Kurintji Report that a site should not bePage 87

considered simply as a particular physical feature of a landscape--such as abillabong or a hill--occupying relatively little space, but rather as a place thelocation of which is indicated by reference to the particular physical feature butwhich is not delimited by that feature. A broad approach to the concept of'site'should be taken. The land around the site is important. The practical problemremains of ascertaining the land to which a concentration of sites relates. I donot consider that in this claim the concentration of sites in the north of the landeast of Dorisvale relates to the whole of that land, so that it could be said thatthe claimants' common spiritual affiliations to those sites places their groupunder a spiritual responsibility for the whole of the land east of Dorisvale. Todemarcate the boundary of the land to which that spiritual responsibility relatesis no easy matter, in the absence of evidence of affiliations to sites distributedacross the land in question. I consider that that part of the land east of Dorisvaleedged in red in Appendix 2 identifies as well as may be the land within thesphere of influence of the concentration of sites in the north. It is only for theland edged in red that the group has a strong primary spiritual responsibility,and a strong traditional attachment; they do not extend to the bed and far bankof the Daly River.110. The major part of Area 1 lies west of Dorisvale Station and is convenientlyshown in Appendix 4 as comprising G.L. 2082 and G.L. 2074. There was aconsiderable amount of evidence of the claimants' spiritual affiliations andspiritual responsibility towards many sites located in various places both in G.L.2082 and G.L. 2074. See for example, paras 60 and 62 in relation to G.L. 2074,and para.64 in relation to G.L. 2082. It is clear that the claimants have strongspiritual affiliations to these sites and strong spiritual responsibility for the sitesand the land to which the sites relate. They have a strong traditional attachmentto this land; historically, this was the traditional country of the Wagiman. It isclear from the spread of the sites across the landscape that their group's spiritualresponsibility and traditional attachment extend to the whole of that part of Area1 west of Dorisvale shown edged in red in Appendix 2; they do not extend tothe bed and far bank of the Daly River. It is clear that their group shares thatresponsibility for the 'box-up' area in Appendix 2 with the Labarganyayn subgroup,and their traditional attachment to that area is also strong.111. Summarising paras 103-110, the claimants' spiritual responsibility andtraditional attachment are strong in relation to Area 2, those parts of Area Ishown edged in red in Appendix 2 (not extending to the bed and far bank of theDaly River) and to the 'box-up' area. They have not established strong spiritualaffiliations and responsibility, or a strong traditional attachment, to Areas 3 and4 or to those parts of Area 1 which lie outside the lands edged in red and the'box-up' area in Appendix 2. From these conclusions, findings as to traditionalAboriginal ownership may now be made.FORMAL FINDINGS112. For the purposes of this inquiry and in accordance with s.50(1)(a)(i) ofthe Land Rights Act, I find that:(1) the lands shown edged in red in Appendix 2, and the land described as'box-up' area in Appendix 2, are unalienated Crown lands;(2) there are Aboriginals, being those members of a local descent groupwhose names appear in subpara.(4):(a) who are the traditional Aboriginal owners of the lands edged inred in Appendix 2;Page 88

(b) who share traditional Aboriginal ownership of the land describedas 'box-up' area in Appendix 2 equally with the Labarganyaynlocal descent group, a subgroup of the Nanggumerri linguisticgroup; and(3) the traditional Aboriginal owners named in subpara.(4) below are eachentitled by Aboriginal tradition to the use or occupation of the whole ofthe lands edged in red in Appendix 2, and the land described as 'boxup'area in Appendix 2, although that entitlement may be qualified as toplace, time, circumstance, purpose or permission.(4) List of traditional Aboriginal ownersAmatji, MariaAngganmerr, ChristineBarritj, JasonBenburr, Paddy HuddlestonBeru, FredBinbiritj, DoreenBonato, Alphonso BattistaBonato, Andrew AllanBonato, Anthony JamesBonato, Graeme JohnBonato, lan AnthonyBonato, Prime JohnBugun, ArthurBun-gun, Bruce AwunCorpus, LouiseDarrwarritj, KennyGarland, John JohnGarland, MarciaGarland, MichelleGeli, KeithHuddleston, BrianHuddleston, EddieHuddleston, NoniHuddleston, WilmaIgondongbu, Noni GeorgeIjandan, Bobby CadellImayma, CharmaineImuljingin, GracieJabulgari, George Huddleston JuniorJamunji, AndrewJanungman, NellieJatparr, CedricJimigurru, VictorJinggaya, RubyJones, Petina RoseJones, Stafford E.Jululuk, LenaKalambara, PatrickKalwaying, Joe HuddlestonPage 89

Karaynpa, Teddy LiddyKararing, NormaKarnay, MabelKatpul, DollyKapuya, JeffreyKartinyan, Daphne HuddlestonKayja, ReggieKibilinyan, Harold BrownKilimiri, StevenKiwadi, DerekKululurr, PatriciaKumayi, TonyKumbitbita, ClaraKumbitbita, CherieKumbitjika, Robert HuddlestonKunbuk, Christopher LiddyLapfir, BasilLiddy, GenevieveLiddy, RankinLiddy, TobyLungmirr, Terry Lisa (Butler)McGregor, SandraMajiwan, LeanneMalmal, BessieMamuyuk, GeorgeMargayan 1, DorisMargayan 2, DorisMayiyin, EileenMiniyan, YvonneMiriyn, PaulMulmul, Elizabeth SullivanMun-gun, Anthony HammerMuwuya, Teresa MuggletonNgalmal, Violet BonatoNgaguna, SharleenNgulbandi, Sandra HammerNgulgurdi, BrendaNgunurr, MonaNingmarriya, Josephine (and children)Nugala, MonaNugalalatj, DavidNugunyuk, WendyNyamulyin, PamPindiying, ColinTalpalngali, LuluVeronica (and children)Walalmo, MarciaWananjirri, Fred MuggletonWidpinyungu, DennisWinbalgari, Kalway, Hector WilsonWowo, Rossaline GarlandPage 90

Wujinma, Dolly HuddlestonWurngit, LawrieYalyimpu, VeronaYawalmin, MelissaYibulbulyin, JessieYiwaryirima, ArthurNotes: A. The following claimants died between the commencement of theinquiry on 17 October 1983 and the date of this Volume of thereport:Jabulgari (George Huddleston Senior)Baybay (Mick Huddleston)Palampal (Don Liddy)Milguyari (Douglas Jack)B. Banjo Banderson is a Wagiman (genealogy No.4), but elected not tobe a claimant; see transcript pp.1776, 1890.LIVING ON TRADITIONAL LAND113. A finding that there are traditional Aboriginal owners of part of the claimarea having been made, s.50(l)(a)(ii) of the Act requires that it next beconsidered whether to recommend to the Minister that a grant of that part ofthe claim area should be made. It has already been found that the claimantshave a strong traditional attachment to that land. It has been the practice inprevious Reports to apply the principles set out in s.50(4) of the Act at thispoint, though differing views have been expressed in the High Court as to thepoint at which this should be done; see Meneling at p.349 (per Wilson J.) and atpp.362-3 (per Brennan J.) In the present claim, none of the claimants are livingat a place within the claim area. Accordingly, s.50(4)(a) of the Act does notapply. The only principle to be applied is that in s.50(4)(b)-those claimantswho presently are not living within the lands referred to in para.ll2 but desireto do so ought, where practicable, to be able to acquire secure occupancy of aplace to live, within those lands.114. The concept of'living' in s.S0(4) connotes something more permanentthan occasional visits, though it does not require continuous physical occupationof a place. The 'desire' of traditional owners to live on the lands need not beunconditional, nor are they required to have some immediate plan to move thereif a grant is made. The usual practical considerations of modern living must betaken into account; in para.245 of the Nicholson River (Waanyi/Garawa) Reportit was put this way:A movement to traditional country does not connote a desire to retreat from thebenefits of modern life, such as education and health services, but rather a desire tolive a more traditional life . . .115. The land west of the Daly River is presently inaccessible for lengthyperiods of the year. Members of the Huddleston family who appear to seeKybrook Farm as their permanent home, are unlikely to spend more than shortperiods at a time in the area in which they have most interest, the extremesouth-west of Area 1. Similarly, members of the Muggleton and Liddy familiesare unlikely to do more than camp from time to time in the land west of theDaly River. Lulu Talpalngali said she would like to live at Douglas Hot Springs,as did Douglas Jack. He is now deceased; I consider that Lulu Talpalngali isunlikely to seek to stay more than a few days at a time at the Hot Springs,Page 91

except during times when she is taking part in traditional ceremonies there.Evidence from various claimants of their desire to live on the claim area isusefully collected at pp. 7.8-7. 11 of Exhibit 96.116. In the long run, if and when secure year-round road access to the westside of the Daly River is available and particularly if agricultural developmentin the region proceeds, it is possible that some claimants may move therepermanently. That is mere speculation at this time.117. In the result, the application of the principle in s.50(4)(b) of the Act isinutile in deciding whether to recommend a grant. Accordingly, the findings oftraditional Aboriginal ownership and of strong traditional attachment by thetraditional owners to the lands described in para.ll2 (1) constitute the touchstonesin deciding which recommendations to make. I consider in the light of thesefindings that a recommendation should be made for a grant of these lands.Recommendations118. I recommend:(a) in the light of the finding at para.l 12 (2) that there is traditional Aboriginalownership of the lands edged in red in Appendix 2, and of the landdescribed as 'box up' area in Appendix 2, and in the light of the findingas to the identity of the traditional owners for the purposes of theseproceedings;(b) having regard to the conclusion in paras 104, 109 and 110 that thetraditional Aboriginal owners have a strong traditional attachment to thelands described in subpara.(a) above;(c) having regard to the principles set out in s.50(4) of the Act, in the lightof paras 113 and 117, and(d) in light of the finding at para.l 12 (3) that all of the traditional Aboriginalowners are entitled to the use and occupation of those lands:(i) that the lands edged in red in Appendix 2 be granted to a singleLand Trust for the benefit of the Aboriginals identified inpara. 112(4) and entitled by tradition to the use or occupation ofthose lands, whether or not their traditional entitlement is qualifiedas to place, time, circumstance, purpose or permission; and(ii) that the land described as 'box-up' area in Appendix 2 be grantedto a separate Land Trust for the benefit of the Aboriginals entitledby tradition to its use or occupation, being the traditional ownersidentified in para.ll2 (4) together with the Labarganyayn traditionalowners identified in para.68 (5) of Volume 2 of this Report, whetheror not their traditional entitlement is qualified as to place, time,circumstance, purpose or permission. See also map at p.158.MATTERS FOR COMMENT GENERAL119. I now turn, as required, to comment on the matters set out in s.50 (3) (a)-(d) of the Act.These are matters which are not allowed to be taken into consideration indeciding whether to recommend to the Minister that a grant of land be made;see the Meneling decision and Minister for Aboriginal Affairs v Peko-WallsendLtd(1985-86) 162 CLR 24 at pp.43, 68. They are matters which bear upon theMinister's decision whether or not to act upon the recommendations made inpara. 118, or when to act upon them.Page 92

MATTER FOR COMMENT NUMBER OF ABORIGINALSADVANTAGED AND NATURE AND EXTENT OFADVANTAGE: 5.50 (3) (a)120. The number of Aboriginals who have traditional interests in the landsrecommended for grant can never be precisely ascertained. There are 96 traditionalowners listed in para.l 12 (4). They would clearly be advantaged if the claim wereacceded to, in that they would be able to exercise the statutory rights vested intraditional owners under the Land Rights Act, as well as having recourse to theland for the purposes both spiritual and mundane about which they have givenevidence, including the secure conduct of ceremonies at places of traditionalimportance. They gain security of title, and the ability better to protect theirsites on the land, by their control of access to them. In relation to Area 2 theywould have the opportunity to become involved in the management and controlof the Douglas Hot Springs Nature Park by the terms of a lease to theConservation Commission, for the continued use of the land as a Park. Theymay gain an economic benefit from that lease; the amount is not yet quantifiable.The Talbot family number about 66. They are Wagiman and would be enabledto have access to the land, if granted, and to learn from the traditional owners.The Labarganyayn subgroup of the Nanggumerri language group number 42;their major advantage from a grant of the 'box-up' area would lie in the betteropportunity it provides for conducting joint ceremonies with the Wagiman there.In the result it may be said that not less than 204 Aboriginals would beadvantaged for the varying reasons mentioned, if the recommendation for thegrant of part or all of the lands described in para.ll8(i) and (ii) were accededto.MATTER FOR COMMENT---DETRIMENT(a) General121. Section 50(3)(b) of the Act requires comment in this Report on the'detriment to persons or communities including other Aboriginal groups thatmight result if the claim were acceded to either in whole or in part'. A broadapproach should be taken to what constitutes 'detriment' in this provision. Ifthere is a reasonable possibility that detriment will flow from a grant, a commentis required; putting it another way, detriment does not have to be seen as aprobable consequence of a grant before comment is required.122. No comment is required if the contention is that the detriment whichmight flow from a grant is simply that the different legal regime of the Act wouldthereafter apply to the land; that contention is no more than a quarrel with theAct. A comment to that effect is of no value. Section 50 (3) (b) is not directed atabstract argument. Facts must be established from which a fair conclusion canbe drawn that some particular detriment might reasonably result to a person orcommunity if a grant is made, from the combined effect of the grant and theAct upon the factual situation. So the legal position that the effect of a grantwould be that the Northern Territory Government could no longer compulsorilyacquire the land for a public purpose because of s.67 of the Act, while correct,does not amount to detriment requiring comment; but if, for example, theproposed route of a railway under construction ran across the land, comment onthe detriment which might result because of the effect of s.67 upon that factualsituation would be required. See generally para.l90 of the Jawoyn (KatherineArea) Report.Page 93

123. Counsel for the claimants argued that neither a Government nor anAuthority (as defined in s.3 (1) of the Act) could seek comment on detriment italleged it might sustain from a grant, because neither a Government nor anAuthority was a person or community within the meaning of s.50 (3)(b). Theargument is developed at length in Exhibit 102B; the thrust of it is that s.50 (3) (b)is applicable only to particular communities and particular groups. Reliance isplaced on the expression 'communities including other Aboriginal groups' ins.50 (3) (b), the definition of'community purpose' in s.3(l)and inferences drawnfrom s.15, to support the contention that 'communities' in s.50(3) (b) connotesorganisations less inclusive than a Government. The submission is that theinterests of a Government are to be dealt with under s. 14 of the Act or, providedthey involve firm proposals for the usage of land, under s.50(3)(c). It wassuggested that Toohey J. considered in several reports that 'communities' ins.50 (3) (b) did not embrace a Government; in fact in several reports his Honourdiscussed certain concerns of the Northern Territory Government as detrimentunder s.50(3)(b), and must have considered that the Government was eligibleto seek a comment on detriment. In para.324 of the Finniss River Report, hisHonour said:The concern expressed by the Northern Territory Government may be seen in somecases as going to detriment, in others as relating to land usage and in most as answeringboth descriptions. It is convenient to deal with them all in one section of the reportwithout seeking to draw any distinction.I respectfully agree. In Meneling at p.361 Brennan J. gave examples of the typesof matters which fell to be considered under paras (b)-(d) of s.50(3). In doingso, his Honour indicated that matters of land usage (which are dealt with ins.50 (3)(c)) could be a concern of the Government of the Northern Territory.However, I do not understand his Honour to suggest by inference that otherconcerns of the Northern Territory Government could not be raised as detrimentunder s.50 (3) (b). In para.l91 of the Jawoyn (Katherine Area) Report I said:Because the Northern Territory Government has a responsibility to plan and providea range of services to the public, it can suffer detriment from a grant. It is necessary,however, for any of its future plans to be defined with some particularity in order thatany resulting detriment may be assessed.I adhere to that view.124. It may be that the claimants saw some advantage if they could establishthat the concerns of a Government do not qualify for comment as detriment,because of the distinction in wording between s.S0(3) (b) and s.50(3) (c) of theAct as regards 'might' and 'would'. Comment is required under s.50(3)(b) ifdetriment 'might' result from a grant; comment under s.50(3)(c) is limited tothe effect that a grant 'would' have on 'existing or proposed patterns of landusage in the region'. I consider that the distinction between 'might' and 'would'does not have as much practical effect as at first appears. I accept the submissionof counsel assisting, Mr Tiffin, in Exhibit 98 that the words 'or proposed' ins.50 (3)(c) tend to diminish the difference in practical effect. I also accept thethrust of Mr Pauling's submission in Exhibit 99C that an examination of'proposedpatterns of land usage' for the purpose of s.50 (3)(c) is an examination of theuses to which lands are proposed to be put, and not the detail of how the landis to be developed to attain that usage pattern. That is subject to this qualification,that the evidence of the 'proposed patterns' must be such as to indicate that theproposal is real and of substance, and not chimerical.125. The matters to which the evidence relates which may conveniently bedealt with under s.50(3)(b) are the effect of a grant on other Aboriginals; thePage 94

effect of a grant of Douglas Hot Springs Nature Park; the effect of a grant onaccess to the Daly River, and to other areas of recreational value or features ofhistorical, cultural or archaeological significance within the lands recommendedfor grant; the effect on mining; on Grazing Licence 2141; on neighbouringpastoralists; and on access to survey marks. I now deal with these mattersseriatim.(b) Detriment to other Aboriginals126. There is no suggestion in the evidence that any other Aboriginals orAboriginal group might be detrimentally affected if the lands described inpara. 118(i) and (ii) were granted as recommended.(c) Area 2 (Douglas Hot Springs Nature Park)127. The background to the creation of the Park is set out at para. 16; see alsoExhibit 15B, pp.139-144. The Park is some 200 kilometres south of Darwin; itsmajor features --the hot springs and the Douglas River-- can be seen in thephotographs, Exhibit 15D. It provides an attractive environment by the river,catering for the recreational needs of both tourists and residents of the Darwinregion as a place for camping, picnicking and swimming. It is one of the mostpopular parks in the Darwin region; in 1985 there were some 23 300 visitorsand the estimate is for some 34 500 in 1990. It is clear that the area has been aplace of resort by the public for very many years, for recreational pursuits.128. Over the last 20 years the Reserves Board and the ConservationCommission of the Northern Territory have spent considerable sums on publicworks in the Park. A good gravel access road has been made and maintained;camping areas have been fenced to protect the river banks; and toilets, showercubicles and barbecues have been constructed. The Park was fenced at a cost of$40 000 to exclude feral pigs and buffalo. A permanent Ranger's residence hasbeen constructed nearby; due to the increase in visitors, the Park has been underthe care of a Ranger for the last eight years. In 1988-89 $100 000 was budgetedfor irrigation and rehabilitation work in the Park.129. The Conservation Commission and the Northern Territory TouristCommission spell out the detriment which they contend might result if the claimto the Park were acceded to, in Exhibits 15A, 84 and 104. Their major concernsare that access by visitors to the Park might then be restricted and furtherdevelopment of the Park as a tourist attraction precluded.130. It is clear that tourism is and will continue to be of prime importance tothe Territory's economy, and that continued access by visitors to the naturalattractions of the Territory--such as the Park--lies at the heart of a healthytourist industry. The Commissions contend that if access by visitors to the Parkwere restrained, efforts to promote the Territory as a tourist destination wouldbe hampered and investors' confidence in building up the infrastructure necessaryfor tourism to flourish would diminish. They also contend that restraints onaccess to the Park would adversely affect the recreational needs of the populationof the Darwin region. These contentions are clearly correct, unless any restraintson access were minimal, and properly arranged and publicly notified in goodtime.131. Accordingly, the Commissions seek that in the event of a grant arrangementsshould be made to ensure continued access by visitors to the Park, an accesswhich is seen to be reliable. Their special concern was that this access to thePark would be restricted when the claimants wished to use the Park for theirtraditional purposes and that this could occur without sufficient lead time toPage 95

enable tour operators properly to schedule their visits. If restrictions were imposedin this way, the Park would come to be seen as a tourist destination to whichaccess was unreliable, and it would therefore be dropped off the tourist calendar.The concern is not fanciful: women claimants indicated during the inquiry thatthey may wish to conduct secret women's ceremonies from time to time at aparticular hot spring; in practice this would necessitate the exclusion of outsidersfrom the general tourist area of the Park for up to two weeks. The Park wouldhave to be closed to visitors during such a ceremony.132. The Commissions' concerns must however be assessed in the light of othermatters which emerged during the inquiry. It was common ground amongst allinterested parties, including the claimants, that the Park will remain as a NaturePark; there is no suggestion, as far as the claimants are concerned, that thepublic will be deprived of access to the Park. They consider that the Park shouldcontinue as a tourist attraction, but they seek to have a Wagiman input into itsmanagement and development. During the inquiry the claimants advanced aproposal for the consultative management of the Park in consultation with theWagiman; see Exhibit 59. This proposal was made independently of the claim.They acknowledged that the Park should be open to visitors without payment. Itappeared that the Conservation Commission saw no difficulty in principle witha Wagiman input into the management of the Park and into the direction of itsfuture development.133. There is ample precedent in the Territory for the legitimate concernsstated by the Commissions to be satisfactorily resolved. See, for example, thearrangements in place for the management of the Gurig and Nitmiluk NationalParks, and possibly also for the Daly River Nature Park. Aboriginal traditionalowners participate in the management of these parks. There is no reason whysuitable arrangements cannot be made between the Conservation Commissionand the claimants, for the management of the Park. Those arrangements shouldbalance the requirement that access by visitors to the Park be seen as reliable inthe sense mentioned in para.l31, with the need by the claimants to use the Parkoccasionally for their traditional purposes. The two needs are by no meansincompatible; balancing them is itself a management exercise. It will be necessaryfor the claimants and the Commission to discuss and agree upon means to attainthat balance; the claimants are willing to do so--a draft lease document annexedto Exhibit 94 contains some working proposals.134. If arrangements are not made which will ensure continued reliable accessby visitors to the Park, the tourist industry of the Northern Territory will sufferdetriment in that one of the Territory's natural attractions may be dropped fromthe tourist calendar; and the community of the Darwin region will suffer detrimentin that the Park will cease to be readily available to meet its recreational needs.135. In summary, there are now ample precedents in the Territory for a NaturePark to be conducted satisfactorily on land owned by traditional Aboriginalowners. The active involvement of the Wagiman in the management of the parkshould increase its interest for visitors. If a grant is to be made, it is essentialbefore it is formalised that the terms under which the Park is to be managedand developed are stated with precision in a form binding on both the Commissionand the traditional owners. Precedents elsewhere in the Territory show that asuitable and effective agreement striking the necessary balance of interests iscapable of being reached and implemented. Until agreement is reached on theterms under which the Park is to be managed and developed, action unders. 11 (l)(e) of the Act may be deferred. However, the precise course of action toPage 96

e taken is a matter for the Minister; the various courses open are those statedin para. 323 of the Finniss River Report. Once an agreement is reached whichsecures reliable access by the public to the Park, there is no detriment whichmight flow from a grant of Area 2.(d) Access by the public to the Daly River136. The mighty Daly River is now part of the outback mythology of Australiaand is celebrated in literature and song. The question of securing reliable publicaccess to the Daly in the short stretch of river affected by the Yubulyawun claim,is discussed in paras 64 and 65 of Volume I of this Report. The ConservationCommission has identified places on the river of important conservation value;for example, the rare pig-nosed turtle nests at the Oolloo Crossing. The river andits banks have a high value for Territorian recreational purposes--swimming,fishing, canoeing and the like--and there is a small but growing tourist interest.Unless the public retains access to the west bank of the river where it flows pastthe lands edged in red in Appendix 2, detriment to public recreational interestswould result from a grant of those lands.137. Appendix 4 shows that there are two main river crossings in the vicinityof the lands recommended for grant: the Claravale Crossing, where the Dorisvaleroad crosses the river, and the Oolloo Crossing. Public access to the river is verylimited: the Dorisvale road and the Oolloo road are the major means of publicaccess to and from its main reaches above the Daly River Crossing and belowKatherine. The Conservation Commission holds a lease of land on the east bankat the Oolloo Crossing, where visitors can camp. The river can be crossed duringthe Dry season and visitors then camp on the west bank. Detriment would flowfrom a grant of land encompassing the west bank, if provision is not made forcampers. However, the claimants have stated that in any event they consideredthat the land comprising the bed and banks of the Daly River should be declared'an open area' under s.ll (I) of the Aboriginal Land Act (N.T.); access by thepublic to the west bank would be secured by such a declaration. In the eventthat a declaration under s.ll (1) of the Act is made in relation to the west bankof the Daly River along the river's boundary with the lands edged in red inAppendix 2, no detriment from a grant will result to members of the public, asregards access to the Daly River.(e) Access to areas of recreation value138. The Conservation Commission provisionally identified certain areas withinthe claim area as having a substantial recreation value. These can be seen on thetransparency which is part of Exhibit 104. For present purposes, Collah Waterhole,Ejong Waterhole and Dead Mans Pocket are the relevant localities. TheCommission seeks a recommendation that these areas remain open for publicaccess. I do not consider in the circumstances that detriment might flow from agrant because persons who wish to visit those locations would require a permitto do so under s.5 of the Aboriginal Land Act (N.T.).(f) Access to features of historical, cultural or archaeological significance139. The Conservation Commission considers that within the part of Area 1west of Dorisvale, a meteorite crater west of Whiskey Spring Creek and theCollah Tin Field near Collah Waterhole may constitute features of historicalsignificance. Field research is as yet insufficient to assess their full significance.As with item (e) above I do not consider that in the circumstances the need forpersons to obtain a permit under s.5 of the Aboriginal Land Act (N.T.) to visitthese features means that detriment might result. Government officers who needto examine the areas to determine their significance may be permitted to do soby the responsible Northern Territory Minister, under s.6 (1) of the Act.Page 97

(g) Mining140. Appendix 1 is a ruling made during the inquiry on the admission intoevidence of certain Northern Territory Government materials on mining. Itdiscusses the concept of'detriment' with particular reference to mining; a factualbasis for detriment must be laid before comment under s.50 (3) (b) of the Act isrequired. Part IV of the Act deals with mining on Aboriginal land; its provisionstaken alone do not constitute detriment. Owners of mining interests seekingcomment under s.50 (3) (b) must show that their activities on the land in questionhave been such that it can fairly be said that detriment to them might resultfrom a grant; an example is given at para.317 of the Alligator Rivers (Stage II)Report. See generally paras 121 and 122 above.141. Six exploration licences have been granted, and one applied for, in relationto parts of Area 1 west of Dorisvale; in that area there are also eight mineralleases. In the part of Area 1 east of Dorisvale there are 12 market garden leases.These mining interests are shown on the plan item 16 in Exhibit 104. Item 13in Exhibit 104 discloses the following details of the mining interests mentionedabove:Mining interest Owner Date effectedMineral leases Baroid Australia 12 March 1973(North) nos.701, 702, 703, Pty Ltd706-710Market garden leases D.L. Mear 22 July 1973(North) nos. 99-110EL 4904 and EL 4905 Top End Mineral 20 March 1986Ventures Pty LtdEL 4821 Driffield Mining Pty Ltd 21 May 1987EL 5383 Driffield Mining Pty Ltd 13 August 1987EL 6229 Driffield Mining Pty Ltd 11 October 1988EL (A) 6080Driffield Mining Pty LtdThe amalgamated claim by the claimants and others was made on 11 April 1983.Section 67A(l)(b) of the Land Rights Act came into force on 5 June 1987. Itseffect in this case is that EL 5383, EL 6229 and EL(A) 6080 are deemed to beof no effect. This effect’1’, of s.67A does not as such amount to detriment, interms of s.50 (3) (b); see para.l40 above. The other mining interests listed abovewill not be affected by a grant of the land. They do not fall within the scope ofs.67A of the Act. Pursuant to s.66 they constitute estates or interests for thepurposes of Part VII of the Act; the owners of those interests are entitled unders.70 (2) to enter and remain on the land for any purpose necessary for the useor enjoyment of their interests; their access to the land for that purpose isprovided for by s.70(4)-(6). [(1) See now Attorney-General (NT) v Kearney 25FCR 408, holding that s. 67A(1) (b) does not have the effect stated.142. No owners of mining interests have sought to give evidence in the inquiryin relation to the lands recommended for grant; it is reasonable to conclude thatthey have not as yet considered that they might suffer detriment from a grant.(h) Grazing Licence 2141143. Para.21 traced the recent history of grazing licences over parts of the claimarea. The only current grazing licence is No.2141 which relates to the areamarked 'G.L. 2082' in Appendix 4. The comments in para.66 of Volume I andparas 85 and 86 of Volume 2 of this Report, which related to grazing licence2074 are no longer applicable. There has been no suggestion that ADMA willsuffer detriment from the loss of its grazing licence 2141.Page 98

(i) Innesvale Station144. Mr L.J. Teece, the owner of Innesvale Station, raised various concerns.He planned to develop an outstation near the southern boundary of Area 1 afterhis land had been cleared under the B.T.B. Programme, by fencing and restockingwith 'clean' cattle. Accordingly, his major concern was that he retained access tothe Stuart Highway via the Dorisvale road to truck cattle; it is physicallyimpossible to truck cattle south from the northern part of Innesvale. As indicatedin paras 150 and 152 Dorisvale road is clearly a public road and no part of itcan be the subject of a grant; its use by Innesvale remains unimpeded. TheGovernment's B.T.B. eradication programme is not disrupted by a grant; theStock Diseases Act (N.T.) applies to Aboriginal land, at least since the amendmentsof 1988 to this Act (similar amendments were made to the Fences Act, theSummary Offences Act, the Bushfires Act and the Stock Diseases Act). Mr Teecewas also concerned about the risk of bushfires; a fire sweeping in from Area 1could be a disaster for the northern part of Innesvale. He stressed the need forproper fire prevention by controlled burning under the auspices of the BushfiresCouncil; there is nothing to suggest that traditional owners would not cooperatein a bushfire control programme, and the Bushfires Act (N.T.) appears to applyto Aboriginal land. Mr Teece noted that he would require access to Area 1 fromtime to time to retrieve straying stock, to control feral animals, and to protecthis fences from fires. Section 43 of the Summary Offences Act provides for theretrieval of stock, but in any event there is nothing to suggest that the usualarrangements between neighbouring pastoralists could not be struck with thetraditional owners in relation to the retrieval of stock and the shooting of feralanimals. The control of fires is provided for in the Bushfires Act (N.T.). Thequestion of fencing is provided for in the Fences Act (N.T.) which binds thetraditional owners to contribute to the cost of a dividing fence; s.22 of the Actprovides for entry onto adjoining land to construct or repair a dividing fence.(j) Bradshaw Station145. Mr I.R. McBean, the owner of Bradshaw Station (shown as Coolibah inAppendix 2) proposed to improve Wambungie in the northern part of the station,comprising some 218 square kilometres and adjoining the southern boundary ofArea 1; see the plan Exhibit 68. This proposal involved fencing, including thefencing of the common boundary of Wambungie and Area 1. Mr McBean'smajor concern arose from the fact that Wambungie could not be worked fromthe southern part of Bradshaw; accordingly, it was essential that it continue tohave access to the Stuart Highway via the Dorisvale road. As indicated inpara.144, Dorisvale road is a public road and no part of it can be included in agrant; Mr McBean's use is not affected by a grant. Mr McBean had similarconcerns to those of Mr Teece as regards the risk of bushfires from Area I, theneed to recover straying stock, to shoot feral animals there and to enter Area Ito repair his fencing. The same comments as in para.144 apply to these concerns.(k) Dorisvale Station146. Mr J.K. Harrower, a joint owner of Dorisvale Station, expressed particularconcern about the risk of bushfires; Dorisvale is a small station and if itspaddocks were burnt out there would be no place to which the cattle could bemoved. He expressed the same concerns as Mr Teece and Mr McBean in relationto feral animals, the need for access to Area 1 to prevent fires, and to recoverstraying cattle. The comments in para.144 are equally applicable to these concerns.Page 99

(l) Access to survey marks147. Mr R.W. Wilson expressed the concerns of the Institution of Surveyors,Australia at transcript pp.2287-8 that surveyors continue to have access to officialsurvey stations on the Area 1; these are shown on the plan Exhibit 77. Thecomment on this subject is set out in para.88 of Volume 2 of this Report.MATTER FOR COMMENT--EFFECT ON EXISTING ORPROPOSED PATTERNS OF LAND USAGE148. Section 50 (3) (c) of the Act requires comment on the effect which a grantof the lands edged in red in Appendix 2 and the 'box-up' area would have onthe existing or proposed patterns of land usage in the region. What is involvedin 'proposed patterns' was discussed in para.124. It is convenient to deal underland usage with the effects of a grant on the following matters concerning thelands in question: the effect on roads and gravel pits; on water bores, rivergauging stations and their associated access tracks, and on the Northern TerritoryGovernment's need for access to investigate, manage and develop water resources;on access by the public to some of the old historical routes and bridle paths; andon a proposal by the Northern Territory Government for agricultural developmentin the Daly River Basin.(a) Roads and gravel pits149. The Act requires that any roads over which the public has a right of waybe excluded from a grant; see s.12(3) of the Act. It has become the practice,because of practical considerations arising from s.12 (3), to identify these roadswhere possible, to assist the preparation of a Deed of Grant should therecommendations in para.ll8(i) and (ii) be accepted. For relevant factors seethe Nicholson River (Waanyi/Garawa) Report, para.293.150. The roads which lie within the lands edged red and the 'box-up' area inAppendix 2 are the nine sections of road numbered 1 and 11-18 in Appendix 4.Items Nos.l2 and 14 are in fact two gravel pits with their associated accesstracks. A consensus emerged during the inquiry between the claimants and theNorthern Territory Government that the roads numbered I, 11 and 13 werepublic roads. Road No.l is a formed and gravelled road providing access toDouglas Hot Springs Nature Park; beyond the Park it is a flat-bladed trackproviding access to Portion 985 and Butterfly Gorge Nature Park. TheGovernment maintains this road. Roads Nos.ll and 13 are sections of theDorisvale road within that part of Area 1 east of Dorisvale. Dorisvale road is aformed and gravelled road which provides access to Dorisvale, Innesvale andBradshaw (formerly Coolibah) cattle stations, in particular; see para.69 of Volume1 of this Report. The Government maintains this road. I consider that the threeroads Nos.l, 11 and 13 are clearly public roads; it would be reasonable to reservefrom grant a strip of land 100 metres wide along the course of these roads toprovide for their maintenance, drainage and future upgrading.151. Counsel for the claimants conceded that items Nos. 12 and 14 in Appendix4 were lands which fell within the scope of s.14 of the Act, as land used oroccupied by the Crown. Items Nos.l2 and 14 consist of gravel pits and theiraccess tracks; see para.71 of Volume I of this Report in relation to item No.12.The evidence at transcript pp.2228 established that the pits are used for theconstruction, maintenance and upgrading of roads in the area. The NorthernTerritory Government seeks that an area around each pit of some 90 000 squaremetres be reserved from any grant, together with strips of land 50 metres widePage 100

along the course of the access tracks. Section 14 of the Act permits theGovernment to continue to occupy and use the pits as a source of gravel, and touse the access tracks, for such period as it requires those lands, even though agrant including the pits and tracks is made. The better view is that theGovernment can continue to extract gravel from the pits from time to timepursuant to its statutory rights under s.14 of the Act; see paras 289-291 of theDaly River (Malak Malak) Report. Such use does not necessitate any reservationfrom the grant. However, s.14 does not permit the extracting of gravel from newpits. Accordingly, if it is thought desirable to provide for the extraction of gravelfrom areas adjacent to the existing pits, the reservation of an area of some 90 000square metres around each pit would appear to be reasonable. Similarly, thereservation of a strip of land 50 metres wide along the course of each of theaccess tracks appears to be reasonable. I do not consider that the access tracksconstitute public roads.152. Road No. 15 in Appendix 4 is a short stretch of the Dorisvale road leadingto Wambungie in Bradshaw Station. It provides access to the rear of InnesvaleStation and is the main access by Bradshaw Station to the Stuart Highway. It ismaintained by the Northern Territory Government on a fairly regular basis; seetranscript p.2227. There is evidence of public use. I consider that road No. 15 isa public road. It is reasonable to reserve a strip of land 100 metres wide alongthe course of the road.153. Roads Nos.l6, 17 and 18 in Appendix 4 are used by Government officersas the means of access to maintain and monitor bores and river gauging stations.In relation to roads Nos.l6 and 18 there is no independent evidence of publicuse; the evidence of Mr J.K. Harrower at transcript p.2216 does not amount toevidence of public use of road No.16. I consider that roads Nos.l6 and 18 arenot public roads; see also para.70 of Volume 1 and para.9l of Volume 2 of thisReport. Road No.17 is a bush track which is not maintained by the Government.It has clearly been extensively used by persons travelling south from OollooCrossing; see, for example, the evidence at transcript pp.2206-7. As is the casewith bush tracks in the Territory, the actual course of the track and its conditionchanges from season to season, as was clear from the evidence of Dr Chase atpp.1679-1680. Although the definition of the track on the ground will vary tosome degree from time to time, its general alignment is clear enough; I think itis clear from the evidence of public use that road No. 17 is a public road.(b) Water bores, river gauging stations, and access by the Northern TerritoryGovernment in relation to water resources154. Exhibit 33 shows the location of three river gauging stations within thelands recommended for grant. Gauging stations are used to measure the flowand depth of water in streams. The three stations are located in Laurie Creek,the Fish River and at the Claravale Crossing of the Daly River; the last-namedis the only station currently in use. It is used for flood forecasting; see forexample Figures B2 and B3 in Exhibit 31. Access to these stations is by roadsNos.l6, 17 and 18 in Appendix 4. Section 14 of the Act enables the NorthernTerritory Government to keep these stations in their present positions for suchperiod as it requires; the right of access by Government officers is secured bys.70 of the Act.155. Exhibit 33 also shows the location of six registered bores. One is locatedin the Fish River Forestry Reserve, a second in Area 2, three more along roadNo.17 in the Appendix 4 and one in the far north-west of Area 1. A seventhPage 101

ore is now located close to road No.17 and the Daly River; it is shown as'proposed new monitoring bore' in Exhibit 33. None of these bores are used toproduce water. Only the three along road No.17 and the one nearby are in use;they are used to monitor the hydrology of the area. As with the river gaugingstations, ss.14 and 70 of the Act secures the use of the bores to the NorthernTerritory Government and continued access by Government officers to them.156. Exhibit 15A pp.97-101 show that the Waggaman Water Control Districtwhich covers a large part of Area 1 in Appendix 2, was declared in 1969 pursuantto the Control of Waters Act (N.T.). The evidence shows that the greater part ofthe land marked GL 2082 in Appendix 4 and that part of Area 1 which is eastof Dorisvale, are assessed as having excellent groundwater potential; see Exhibit33. The primary purpose of the Water Control District at present is to preventwastage by controlling the construction of bores, thus preserving the resource forpossible future use for irrigation. A grant would not affect the Waggaman WaterControl District. The Northern Territory Government seeks to retain over thelands recommended for grant the powers vested in it under the Control ofWaters Act, incidental to its statutory right to control the use of surface waterand groundwater.157. The effect of s.74 of the Land Rights Act is that laws of the NorthernTerritory, such as the Control of Waters Act, apply to Aboriginal land 'to theextent that they are capable of operating concurrently' with the Land Rights Act.Many controls can operate concurrently; see paras 123-4 of the Kaytej Report.Many of the extensive powers necessary to control water resources, vested in theNorthern Territory Government under the Control of Waters Act, may beexercised in such manner as to conflict with the provisions of the Land RightsAct, e.g. s.71 (1) relating to the use and occupation of the land by Aboriginals.It depends on how the Controller of Water Resources seeks to exercise hisstatutory powers in relation to Aboriginal land; the particular facts andcircumstances of the case will determine the 'extent' to which those powers 'arecapable of operating concurrently' with the Land Rights Act. That is the commenton the Northern Territory Government's request. I note that to carry outinvestigation drilling and its associated works, activities authorised by s.l6FA ofthe Control of Waters Act (N.T.), is consistent with s.74 of the Land Rights Act;see para.333 of the Warlmanpa Report and para.139 of the Mount Allan Report.Permits would be required in that case under s.6 of the Aboriginal Land Act.But an access track could not be constructed on Aboriginal land under s.l6FA(c)without the Land Council's consent under s.68 of the Land Rights Act.(c) Access to historical routes and bridle paths158. Mr R.W. Wilson raised at transcript pp.2289-92 the concern of theEnvironment Planning and Australian Heritage subcommittee of the Institutionof Surveyors, Australia (NT Division), that old bridle paths and stock routes beretained for recreational use. The concept of a horse trail through Australia isforward-looking. This concern has been raised in the past; it is discussed inpara.89 of Volume 2 of this Report and, for example, in para.367 of the FinnissRiver Report. No evidence was sought to be adduced as to the continuing publiccharacter of the historical tracks sketched in the plan Exhibit 77; it cannot besaid that they should be excluded from a grant on the basis that they areestablished as public roads. If one or more of these historical tracks is at somelater time shown to be a public road, the fact that it is included in a grant willnot affect its character as a public road.Page 102

(d) Northern Territory Government proposal for agricultural development--theADMA scheme(i) Agricultural development in the Territory: a history of failure159. It has been accepted wisdom for many years that development and closersettlement of the North is essential to the strength of Australia. Any doubtsabout that disappeared in World War II. The economic rationale is greater todaywith the fast-developing countries to Australia's north providing an increasingmarket for products which can be grown in the Territory, and which the Territoryis well placed to satisfy. Yet there is no agricultural industry in the Territory,and there can be no closer settlement until that industry exists. To create thatindustry, if possible, is not a mere Territory concern; it is a matter of profoundnational significance.160. For over 100 years the agricultural development and settlement of theTerritory has been seen as a key objective, first by South Australia and then bythe Commonwealth. Many individual attempts have been made from time totime, hopes have been high, but an agricultural industry has not yet beensuccessfully established. All that can be said is that a small peanut industryexisted from 1926 until 1946. The causes of this failure have been many andvarious. The simple lack of adequate knowledge has been a crucial factor; as aresult, people have tried to grow the wrong crops in the wrong places. Elsewherein Australia, agricultural industries have evolved over'a long pioneering phaseof labour intensive, low return effort, made possible by the existence of anaccessible market but many personal sacrifices' (Exhibit 26, p. 22). This resultedin the gradual accumulation of practical agricultural know-how, over 100 years;the Territory has never been through that phase, and hence there is a lack of'knowledge of how to deal with the ecological vagaries of the region' (Exhibit 26,P· 23).161. In 1937 the Payne Report commented on the history of primary industryin the Territory since 1911 as follows:Disappointment followed disappointment. A variety of crops was grown on theexperimental farms but none was produced at a profit. The sheep-grazing experimentsfailed as the country chosen was utterly unsuitable for the purpose... Labourbecame scarce and unsatisfactory. The freezing works closed and mining declined. Thepastoral industry alone, midst the welter of chaos, and notwithstanding the difficultiesof varying prices, transport and markets, made some small progress. (para. 22).That Report was pessimistic about the Territory's agricultural potential, citingthe unsatisfactory distribution of rainfall, the limited areas of good soils, theabsence of nearby markets for the products, and the difliculty of attracting goodfarmers.162. However, the need to feed the large number of troops stationed in theTerritory in World War II conclusively showed, through the army farms, thatwhen manpower and cost constraints are not relevant factors, vegetables andfruit can be locally grown in quantity.163. In 1946 the C.S.I.R.O explained the long history of cropping failures inthe Top End of the Northern Territory as follows:(1) major natural problems of production contributed to by the climate, unsatisfactorysoils, uncontrollable hazards such as floods and regular seasonal droughts, pests,varieties in topography and land types, property management and land utilisation;(2) unfavourable economic conditions, including isolation from markets and hightransport costs for both imports and exports, inadequate and erratic markets andthe lack of organised transport and marketing facilities; andPage 103

(3) unattractive social and living conditions which deterred many persons frompersisting in their efforts.Correlatively, the essential factors for successful future development were seento involve:(1) demonstrating, following adequate investigation, that stable production could beachieved;(2) obtaining adequate and regular markets for crops which could be producedsuccessfully;(3) organising transport and marketing so as to minimise costs and reduce thehazards; and(4) the assurance that items (1), (2), and (3) could support an adequate standard ofliving and acceptable social conditions.164. The Northern Australian Development Committee in 1947 identified thepast lack of development in the North as in part due to the unwillingness ofgovernments to make available the infrastructure on which progress beyondpioneering depended.(ii) The Forster Report: a blueprint for action165. The question of how best to effect agricultural development in the Territorywas examined with care by the Forster Committee in the late 1950s. At thattime, 1958-59, the total area cropped in the Territory--which occupies 1.34million square kilometres, constitutes 17.6 per cent of Australia's land mass andcontains only 1 per cent of its people--was a minuscule 1012 acres. In itsseminal report in 1960 on 'Prospects of Agriculture in the Northern Territory'(Exhibit 67), the Committee analysed the reasons for past failures, with a viewto avoiding them in future. It sought to spell out the best use that could be madeof land in the Territory. (It is clear that 20 years later the Forster Report wasvery much before the minds of the planners of the agricultural proposal nowunder discussion; compare, for example, the Forster approach by way of pilotfarms referred to in paras 167-8 and 171-3, with the Working Party's approachat para. 207 and the 'project farms' referred to by the Minister at paras 211 and213.) The Committee concluded:Development of [agriculture in] the Northern Territory depends on attracting peoplewho have enthusiasm, and a sound understanding of the difficulties, and who are leftfree from red tape. (Exhibit 67, p.10).It considered that because the Territory was so undeveloped, to promoteagricultural settlement meant that the Government must necessarily incur costs.The cost of the lack of development to settlers was high in that, until theeconomy had grown, the lower costs associated with a developed economy wouldnot be available.166. The Committee made detailed recommendations as to the policy decisionsnecessary to promote sound agricultural settlement in the Territory. These includedthe following. An Advisory Council should be set up commanding a wide rangeof theoretical and practical expertise, to continuously review the progress of ruralindustry and to encourage research. A representative farmers' organisation shouldbe created. There should be freehold tenure of farms which were commercialfarming units, but only after the farmers as lessees had satisfied conditions as toland development. There should be Government agricultural credit, restricted tofarmers who adopted sound farming practices. The Government's role inpromoting development was seen to lie in reducing transport costs, through thebuilding of roads and railways and improved wharf facilities; and by bringingPage 104

the price of phosphate fertiliser (a 'fundamental basis for better farming in theNorthern Territory') more into line with its price elsewhere in Australia.167. The Committee saw the gaps in farming knowledge in the Territory as amajor problem. It considered that this lack of information, essential to successfulcommercial farming, should be remedied by setting up pilot farms, includingfarms on the Tipperary Land System to test the practicality of fattening cattleon improved pastures. A 'land system' is a region over which a recurrent patternof topography, soils and vegetation can be recognised. I note here that four yearslater the Commonwealth Government established some pilot farms; however,these were not established on the Tipperary Land System because following areview by the Bureau of Agricultural Economics in 1962, it was decided thatunder the conditions then obtaining Tipperary farms would not be commerciallyviable. (The Commonwealth Pilot Farms scheme lasted until 1972, when it wasterminated as another failure.) The Committee's concept of pilot farming wasthat the best available technical advice should be given to farmers who had beencarefully selected for their abilities, and who were then left free to follow theirown judgement. The Committee also stressed the need for proper researchprogrammes in order to acquire the technical information necessary if settlementwere to succeed. This research included ascertaining the suitability of soils indifferent parts of the Tipperary Land System for arable farming and pastureimprovement, the survey and development of water resources, and thedevelopment of low-cost methods of land clearing. (ADMA carried out work ofthis type, in the agricultural development proposal under discussion.) Pastureresearch was to be intensified, as was research into growing peanuts and grainsorghum on a large scale, and into finding a suitable legume for the TipperaryLand System.168. The Committee noted that:... when it sponsors land settlement [a government] cannot afford to be wrong.Apart from responsibilities to the individual settlers, the government has to avoidlosses and to 'protect the public purse.' (Exhibit 67, p. 11).This observation clearly states one of the reasons for the staged approach whichthe Northern Territory Government later took to agricultural development; seepara. 210. The Committee considered that:Appreciable areas of more gently undulating country with better soils occur in theKatherine and Daly River Regions . . . (p. 19).· . . the total of the more favoured areas amounts to an appreciable acreage. (p. 20).· . . the most suitable agricultural areas occur (a) in the Upper Daly River valley . . .(P· 25).The potentially arable soils in the Northern Territory fall into three broad groups:1. Soils suitable for normal dryland crops in the northern, higher-rainfall parts of theTerritory. These include . . . soils in the Tipperary Land System. (p. 25).169. The Committee then discussed the various soils suitable for drylandagriculture, noting that 'large areas of the Tippera soil are known to occur invarious portions of the Tipperary Land System'. It identified the Tipperary LandSystem as 'the drainage basin of the lower Katherine and Daly Rivers' (p. 26),and indicated its location and extent in the sketch reproduced on page 106.Page 105

170. The Committee discussed at pp. 123-4 the various possible crop rotationswhich could be used in the Tipperary Land System and the cattle-fatteningcapacity of improved pasture in that System. It concluded:We are not too despondent because we cannot foresee accurately how things are goingto work out; we know that the evolution of a satisfactory farming system mustinevitably depend on the farmers themselves. Even though we have been unable tonail down a system which we think would be exactly right, we do not feel thatintensive land use in the area is impossible.Our attitude in this respect is very much influenced by the fact that our analysis ofthe farming systems for the Tipperary has been based on the results of work done atKatherine, which . . . is on the southern end of the Tipperary Land System wherethe rainfall is lowest.Further north there would be a higher rainfall and a longer growing season, althoughdata are not available to show precisely how much higher the rainfall or how muchlonger the season would be. (Exhibit 67, p. 124).171. At pp.185-190 the Committee outlined the various roles of researchcentres, experimental stations and pilot farms and discussed the move fromresearch to the application of the research findings on commercial farms. As topilot farms, the Committee said:. . in a new environment where a measure of the profitability of a new farmingsystem is necessary it can only be obtained by getting a farmer to do it, and not evena farmer working for the government, but a farmer who feels that he is working forhimself. That is, the profitability can be measured only by commercial pilot farmers--not by getting a government experiment station to do the measuring.The commercial pilot farm encourages initiative to work out the best way of operatingthe particular farming system which has been laid out in advance. When the pilotfarms have tested the information about the practicality of the farming systems, theway is open for commercial farmers to take up new land. (Exhibit 67, p. 18).Page 106

The Committee then set out and discussed eight principles which 'govern ourthinking on pilot farms' viz.:1. They should be pilot farms and not experiment farms.2. The pilot farmer must have a clear incentive to work well.3. He is entitled to a minimum wage.4. He should receive guaranteed prices; but the level of those prices should begoverned by what prices are thought to be attainable in the future, not prices thatare fixed high to make the operation profitable.5. The pilot farmer must be limited in what he does, not how he does it.6. The pilot farmer should not be asked to grow crops about which little is known,even if they look hopeful.7. The pilot farmer should only be asked to grow those crops which look reasonablyprofitable.8. If the pilot farmer is successful, and the government does not take the next stepof encouraging closer settlement then he is entitled to some compensation. (Exhibit67, p. 186).172. The main job of the pilot farmer was seen as measuring the economics ofgrowing his main crop or pasture. One of his incentives was that he should havethe right, if he showed by his efforts that farming was profitable in the area, toacquire the land he had worked. As to pilot farms for the Tipperary LandSystem, the Committee considered that since it could not devise a crop rotationwhich was likely to be profitable the only other enterprise to meet its criterionof profitability (see para. 171, principle No. 7) was improved pasture, grazedduring the Wet season. It considered that there should be at least four pilotfarms, to ensure that the answers obtained were more accurate. The Committeenoted that the cheapest way to clear scrub was to do it with big equipment andthis was outside the means of an individual settler. It concluded:The land should be cleared, the pasture established, and the house and otherimprovements erected, before the pilot farmer takes over. This is no new departure;this is the way it is done on all modern Australian settlement schemes. (Exhibit 67,p. 188).The correlation with the actual approach adopted by ADMA in the proposalunder discussion, is clear; see para. 216.173. The Committee considered that a government department should notoversee the pilot farm scheme; that should be the responsibility of an independentAuthority, free of public service regulations and control. This Authority wouldplan in detail the setting up of the pilot farms, including the precise conditionsunder which each pilot farmer would operate. It would choose the areas to befarmed and select the farmers, using very great care. It would arrange to clearthe lands, sow the pastures, build the houses, erect the fences and yards, sink thebores, and do all the things which a settlement Commission would do in theAustralian States. As noted in para. 172, this is the way ADMA approached itstask. The Authority's chief duty would be to oversee the work of the farmer, inthe sense 'of taking an intelligent and continuing interest in what was being doneand why' (Exhibit 67, p. 189). It would measure the pilot farmer's results and'asthe picture began to emerge and some idea was obtained whether a settlementscheme based on these pilot farms would have a reasonable chance of success',it would begin to plan a large-scale settlement scheme in some detail (p. 189).The Committee considered that the most important gaps in knowledge were suchthat they could be filled better by pilot farmers than by an experimental station.Page 107

174. The Committee identified and discussed six phases involved in anysuccessful land settlement: new knowledge, control of land, selection of settlers,farming systems, finance, and research and advisory services. It then discussedseven land development schemes which illustrated features necessary for successfuldevelopment, as well as some of the pitfalls. Amongst these was the Queensland-British Food Corporation joint venture at Peak Downs in Queensland whichcommenced in 1948 but failed to achieve commercial success. The Committeenoted that a review of that venture had yielded five conclusions 'so importantand of such direct concern to all land settlement schemes' that it reproducedthem viz.:1. The most careful attention should be paid to the development of the initial planswhich should be accompanied by a detailed study of the available technical dataon climate, soil conditions and the other associated factors.2. Large-scale commercial production of new crops in untried areas should not bestarted straight off the drawing board. If there has been no actual experience, thework should begin with pilot-scale experiments to establish the technical feasibilityof the proposed operation and to obtain some reliable data on the likely range ofcosts.3. Following the pilot-scale experiment, development should be slow and steady inthe early years, as the administrative and operating procedures are being tested.The time for capital development comes when all the appropriate techniques havebeen proved, when the commercial gains have been satisfactorily demonstrated,and when the administration of the scheme is 'run in' and ready to cope with theproblems of expansion.4. Staffing and administrative control arrangements should be developed and amendedas the scheme progresses.5. The financial arrangements between government and the corporation administeringthe scheme require realistic assessment. Large-scale agricultural development workunder new conditions is, above all, a financial risk. (Exhibit 67, p. 194)175. Citing the experience of Territory Rice Limited in the commercialproduction of rice at Humpty Doo from 1954, the Committee noted that:...large-scale farming is often adopted in the early stages of the agriculturaldevelopment of an area to reduce costs of production and to make economic use ofhigh-priced equipment, but it brings with it problems of management and risks whichthreaten the efficiency of production and the financial structure of even the largestfirms.' (Exhibit 67, p. 202).The venture by Territory Rice Limited was the first attempt to test on a largescale the agricultural possibilities of the Territory. It was a financial disaster, notleast because there was an attempt to do too much too soon, the large-scaleoperations being carried out before sufficient knowledge and experience had beenbuilt up to provide a sound basis for rice-farming in the area.176. The Committee discussed the six separate phases of successful landsettlement mentioned in para. 174. On 'farming systems' the Committee said, inrelation to its land development aspect:. . the most important aspect of a scheme, which is often ignored, is time. Time isneeded for the clearing and development of land, and for the establishment of pasturesand the production of livestock from them. All the settlement schemes which havefailed have done so largely because they have been caught up in an unrealisticenthusiasm which ignored the need to take time. Excess optimism and lack ofunderstanding of the need to hasten slowly have been largely responsible for thebreakdown of the Q.B.F.C. and Esperance Plain Schemes, and TerritoryRice... . Undue haste brought about the collapse of the land development plan.(Exhibit 67, pp. 206-207).Page 108

177. The Committee concluded with some passion:If the north is to develop, this circle [no industry because no facilities, and no facilitiesbecause no industry] must be broken by someone and, if the Government considersthe north should be developed, it seems to us to be a proper function of Governmentat this stage to break it. If the Government will not accept this responsibility, it mustaccept the other responsibility--of doing nothing.... any large-scale development is going to call for considerable expenditure ofGovernment money and effort.We should not underestimate the cost of another failure. The Territory has sufferedthroughout its history from one failure after another. . . . shattered hopes and dreamsare commonplace.We simply cannot afford another failure in the Northern Territory. (Exhibit 67, p. 209).178. The Forster Report was made in 1960. It led directly to the CommonwealthPilot Farms project--another failure; see para. 167.(iii) Agricultural development before Territory self-government (1 July 1978):large-scale schemes and large-scale failures179. Between 1954 and 1978 there were six large-scale agricultural developmentsin northern Australia; all of them failed to a greater or lesser extent. Theyincluded the Territory Rice Limited venture at Humpty Doo mentioned atpara. 175, the Tipperary Land Corporation venture on Tipperary Station, andthe Northern Agricultural Development Corporation venture on Willeroo Station.I now deal briefly with the last two mentioned.180. In 1967 Tipperary Land Corporation planned to integrate cattle raising onTipperary Station with the growing of food and feed crops, principally grainsorghum, peanuts and rice. It intended to subdivide and sell the land which itdeveloped. As it turned out, sorghum only was grown, there was no cash croppingafter 1969-70, in 1970-71 farming was largely abandoned, and the Corporationsold the station in 1973. In 1977 M.J. Fisher of the C.S.I.R.O. identified thecauses of the failure as follows:1. Poor land preparation and planting technique.2. Poor management structure, and inexperienced management at all levels.3. Inadequate information on the variability of the land caused by misunderstandingthe scope of the land system surveys.4. Scale of the project was too large to be operated satisfactorily as a single unit.5. The limitations of the climate were not understood.6. Poor judgement in deciding to invest in irrigation, the ensiling of sorghum stoverand feed-letting.7. Economy of scale was not achieved except in initial clearing.8. Unnecessary expenditure on capital and consumable items.9. Over-capitalisation, especially with machinery. (Exhibit 26, p. 60).181. In 1971 the Northern Agricultural Development Corporation acquiredWilleroo Station, 70 kilometres south-west of Katherine. The northern part ofWilleroo is now Scott Creek Pastoral Lease; it is within the Daly Basin. TheCorporation proposed to improve pasture, to greatly increase the cattle herd, andto produce sorghum on a commercial basis. It went into receivership in 1974.M. J. Fisher identified the causes of the failure as follows:1. There was failure to utilise available technical information.2. There was too much borrowed capital.3. The limitations of the soils and climate were not understood.Page 109

4. Economic factors, such as the slump in the beef industry, and the increase ininterest rates, were important.5. There was a lack of experience of cultivation of northern earth-type soils, andignorance of their erodibility.6. Economy of scale was not achieved.7. Funds were spent on the wrong equipment and on unnecessary clearing.Administrative costs were high. (Exhibit 26, p. 70).182. The large scale cropping schemes at Tipperary and Willeroo were basedon incomplete or inadequate land systems mapping. To remedy this lack of data,the Government had begun land unit mapping in the Katherine-Douglas area in1968 at the scale of 1:50 000, for cropping development. Land resource surveyis obviously a vital prerequisite to agricultural development.183. In 1977 M.J. Fisher in Exhibit 26 at pp.25-28 drew the followingconclusions from his review of the general history of the failure of large-scaleagricultural developments in the North:(1) As to development, there is little place for large-scale crash developments in thefuture. Rapid development tends to be costly development and bigger operationsare less, rather than more efficient, even though clearing gives economy of scale.Smaller diversified farms with a slower rate of development, where the operatorslearn as they go, use resources more efficiently and minimise economic andclimatic risks. Development requires continued public investment in infrastructure.It is a serious mistake to undertake development without adequate research andpilot-farm data.(2) Research should precede development and crops and sites for development shouldbe carefully chosen. Future research should be made more relevant to the problemsof broad scale agriculture, by devoting more attention to the problems which arisewhen crops are grown on a larger scale and for longer times.(3) The Forster Committee's observations about development schemes in general (seepara. 174) are as relevant now as they were when made, though they seemed tohave been ignored.(iv) The Lapidge Report: a second blueprint for action184. After self-government on 1 July 1978, it was to be expected that the newNorthern Territory Government would see as a priority the need to promotediversification into agriculture from livestock, mining, tourism and fishing. InJanuary 1979 it commissioned the Queensland Department of Primary Industriesto review the factors affecting the production and marketing of horticultural andagricultural crops in the Northern Territory, and to make recommendations forincreased future production. The Department produced an interim report onagricultural produce in September 1979 (herein the Lapidge Report); see Exhibit41. It considered the prospects for the development of broad-scale agriculture inthe Northern Territory, dealing extensively with the crops which it consideredhad the best chance for success in each of the various regions it consideredsuitable for agriculture.185. The report discussed the soils on Tipperary Station which had been usedto produce grain sorghum in the years 1967-70; see para. 180. It noted that thedepths at which water can be found, and its quality, varied considerablythroughout the Daly River Basin so that 'potential which appears at Tipperarycannot be extrapolated to the rest of the Basin.' (Exhibit 41, pp. 67). It stated:Ground water resources in the area are unreliable and have not been explored forirrigation. (Exhibit 41, p. 67).Page 110

186. It discussed current agricultural production problems in the context ofmatters such as land preparation, the size of the present farms, the effect ofherbicides and insect problems, and concluded:The major problem in Northern Territory field cropping is one of scale. To becommercially viable, an agricultural industry needs to develop fairly quickly to a scalesufficient to service the necessary infrastructure and to benefit from the substantialcost savings derived from bulk handling and full cargo shipment. (Exhibit 41, p. 69).Although the Lapidge Report identified scale as the 'major problem', it wascareful to stress that before any large-scale agricultural development wascommenced, with the objective of increasing output markedly and rapidly andthereby gaining the economies of scale, detailed soil surveys had to be carriedout to identify the land units suitable for cropping; see paras 190-1.187. The report considered that climatic conditions were suitable for cropproduction 'in the area between Darwin and 16" South latitude', a region inwhich there were 'large areas of suitable land and suitable crops available'. Itthen noted at Exhibit 41, pp.69-70, six reasons why these resources were notbeing utilised:(1) The small number of farmers in the Territory.(2) The fact that the best land was tied up in large pastoral leases which preventedaccess by specialist farmers. As to the argument that the pastoralists 'coulddevelop large scale cropping on their leases', it observed that 'this has been triedat Humpty Doe, Tipperary and Willeroo with disastrous results'.(3) Input costs were very high, because machinery, fuel, fertilisers and seeds had tobe obtained from elsewhere with a high transport cost component.(4) There was an almost total lack of expertise and facilities for handling andmarketing agricultural produce.(5) There was an apparent lack of capital for the development of agriculture.(6) There was a shortage of machinery for field production of crops.188. The report then discussed these inputs and input costs, noting that it wasin connection with items such as machinery, fertilisers and chemicals that 'veryserious impediments are placed on agricultural production in the Territory'.(Exhibit 41, p. 70). It considered later in relation to its proposal for farms in theDouglas-Daly Basin that it was:. . essential that intending farmers have proven competence and preferably substantialexperience in growing broad area crops, desirably under tropical or sub-tropicalconditions. They should also have financial backing sufficient to enable them to makea success of the venture. (Exhibit 41, p. 93).(ADMA appears to have adopted this approach; see para. 216.) It observed thatsince most soils in the Territory are deficient in phosphorus and nitrogen, thecost of applying the necessary quantities of those fertilisers amounted to 50 percent of the total costs of producing crops such as sorghum and maize. It notedthat facilities for handling agricultural produce after harvest were minimal andstated:In the Daly River Basin, crops are frequently harvested at high grain moisture contentand should be artificially dried before being stored. (Exhibit 41, p. 71).It considered that there was 'currently an almost total lack of expertise inmarketing of agricultural produce in the Northern Territory.' (Exhibit 41, p.72).It discussed the problems in marketing, both domestic and export, noting that inthe latter the main problem was one of scale and that essential port facilitiessuch as large-volume storages were then non-existent at Darwin.Page 111

189. The report proceeded to discuss the various field crops which research hadshown were capable of producing good yields in specific areas of the Territory.These included grain sorghum, maize, peanuts, soybeans, mungbeans and variousgrain legume crops.190. It noted that the main climatic limitation to agriculture in the Territorywas rainfall and considered:The Douglas/Daly basin is an area which has a suitable climate for agriculturaldevelopment. Annual rainfall is between 1000 and 1270mm and the length of thegrowing season is about 22 to 24 weeks. A large selection of crops can be grown.(Exhibit 41, p.80).It had earlier noted that dryland agriculture was restricted by the length of thegrowing season to the region north of latitude 15" South, and that land systemand land unit surveys of that region had shown that soils suitable for broad scaleagriculture were limited, variable and highly erodible. It stated that:The existing level of information available from completed surveys is insufficientaccurately to define the locations of suitable soils or to predict the extent of soilssuitable for broad scale agriculture ... for adequate definitions and predictions ofsuitable land areas, land units must be mapped at a scale of 1:50 000 or greater.(Exhibit 41, p.81).(ADMA adopted this approach to mapping; see para.223.)191. Accordingly, the report stressed that if successful cropping were to beestablished:. . preliminary, detailed soil surveys will be necessary to delineate land units suitablefor cropping before any large scale development proceeds. The sensitive balancebetween climate and soils is so critical in the Northern Territory that cropping venturesmust be based on sound and detailed resource knowledge if success is to be ensured.Surveys indicate that extensive areas of soils suitable for dryland agriculture are limitedto the Daly River Basin . . .' (Exhibit 41, p.81).It was clear from this conclusion that if large-scale agricultural development wasto proceed anywhere in the Territory, the Lapidge Report saw it occurring in theDaly River Basin. It then discussed the soils of the Daly River Basin.192. On the question of land tenure it stated:The existence of pastoral leases over most of the agriculturally suitable areas of theNorthern Territory currently provides a major limitation on agricultural development.The Investigation Team considers the best areas of land for initial agriculturaldevelopment probably lie on Tipperary and Douglas Stations.Approximately 80 000 ha. has been cleared in Tipperary Station, but all of this areawould not be suitable for cropping.The Northern Territory needs farmers--experienced farmers with good fanning expertiseand with working capital. Such farmers are unlikely to move to an area of unprovenproductive capacity to share-farm. They would not normally consider moving thereunless there is a big incentive.Perhaps the prospect of eventual freehold over land made available for developmentcould provide this incentive.' (Exhibit 41, p.88).193. The report then considered six areas which might be available fordevelopment, including the Douglas-Daly Basin. It considered it essential thatthe first part of the developmental plan for the Territory be successful and thatit was therefore desirable 'that the area with the greatest probability of successbe the one chosen for initial development' (Exhibit 41, p.89). Of the six areas itconsidered that the Douglas-Daly Basin:Page 112

which consists of Tipperary, Douglas, Oolloo and Jindare Stations and the DalyRiver Agricultural Area shows the greatest probability of success if chosen for thedevelopment. Very extensive areas of suitable soils are available in the area andagricultural production is not likely to be hampered by lack of moisture. Irrigationwater is available from numerous bores in the area and from the Daly and DouglasRivers which flow throughout the year. The following crops could be grown with highprobability of success--maize, sorghum, peanuts, soybeans, grain legumes and pasturesand forage crops. (Exhibit 41, p.89).Despite this description of the Douglas-Daly Basin in terms of cattle stationsand lands which are all on the east side of the Daly River it is clear that theLapidge Report did not see the Daly River as the western boundary of the Basin,as appears from its following observations about roads. It considered that itwould be necessary to have an all-weather road connecting with the StuartHighway and continued:The construction of all-weather branch roads to the Daly River near its junction withthe Douglas, and to the Daly River Crossing may also be involved. Subsequentconsideration might have to be given to the extension of such branch roads across theDaly to country on the western side of the river, if this country is to be madeaccessible for development.' (Exhibit 41, p.91).It is clear that the report envisaged the Basin in the same way as the ForsterCommittee had, 20 years before; see para.169.194. The report noted that a key factor in the development was the size offarms. While individual farm sizes would largely depend on the nature of soilson the particular farm 'a minimum farm area of 1000 ha. appears desirable'(Exhibit 41, p.91). This was on the basis that 'at least 20 per cent of each farm'stotal area would not be suitable for cultivation', and that it could be assumedthat under rain grown conditions'a farmer, employing casual labour, might sowaround 800 ha. of crops per year.' (Exhibit 41 p.91).195. It noted that substantial cost savings on both inputs and outputs couldonly be achieved if total production 'of any particular commodity . . . is raisedto a level which will support the establishment of full-scale, bulk transport,handling, storage and ship loading facilities' (Exhibit 41, p.91). It concluded:It follows, therefore, that the more rapidly any development takes place, the soonersuch cost savings will be achieved and the lower will be the levels of support necessaryin the developmental stage.A reasonable approach might be to endeavour to establish farms at a rate of 12 peryear over say a 10 year period. (Exhibit 41, p.91).Later, it put it this way: taking into account the 'vital prerequisite' of a landresource (soil) survey, and the constraints on that,'an agricultural developmentscheme stretching over 10 years with 10 000 ha. being developed each year, is apossibility' (Exhibit 41, p.106). Here the report was necessarily in the area ofpossibilities, as the 'preliminary detailed soil surveys' which were 'necessary todelineate land units suitable for cropping' (see para.l91) had not then beencarried out. I note that the emphasis on rapid development (to reduce the supportcosts of the Government) does not accord with the Forster Committee's RuleNo.3 in para.174, with its emphasis on 'slow and steady' development in theearly post-pilot farm years. The Lapidge Report referred at p.92 to the annualcost of the initial development of 12 farms per year and suggested that thosecosts would probably need to be borne by the Government. The farmers wouldthen be able 'to commence farming operations fairly quickly'; they would have'considerable expenditure on machinery to provide for continuing production'(p.92).Page 113

196. The report considered that some strategically located storages (grain receivaldepots) would be required, their location being 'largely determined by the locationof farms in relation to the location of an all-weather highway into the area andthe location of farm access roads.' (Exhibit 41, p.98).197. In summary, the Lapidge Report saw the major constraint on Territoryagriculture as one of scale, which had effects both on cost of inputs and ofmarketing. To achieve the scale necessary to make agriculture commerciallyviable, it considered that the industry should be developed fairly quickly, tominimise the amount of support necessary until that scale was reached. TheDouglas-Daly Basin was seen as the most suitable area for agriculturaldevelopment, with priority being given to the eastern part of Tipperary Stationand the western half of Douglas Station. What Lapidge conceived to be comprisedin this Basin was clearly enough what the Forster Committee had described as'the drainage basin of the lower Katherine and Daly Rivers', in para.169. Thereport stressed the need for detailed soil and water resource surveys, to delineatethe land which could be safely cultivated and to enable necessary soil conservationmeasures to be taken, before any development commenced; this was in accordwith the Forster Committee's Rule No.l in para.174. It considered that farms of1000 ha. were desirable, this being on the basis that a farmer might sow about800 hectares per year, using casual labour and that 20 per cent of the land mightbe unsuitable for cultivation. The report made no mention of pilot farming,which the Forster Report had stressed (see paras 176-8 and 171-3), but neitherreport saw large-scale commercial production of new crops in untried areas beingstarted straight off the drawing board.(v) The Northern Territory's evaluation of the Lapidge Report198. In November 1979 the Northern Territory Government accepted theLapidge Report, and established a Working Party to evaluate it and advise theGovernment on its implementation and the alternatives. The Working Partyreported in January 1980; see Exhibit 44.199. It agreed that agriculture was unlikely to succeed in the Territory unlessthere was a planned development programme with substantial Governmentinvolvement, which would include the acquisition of land, the pre-developmentof farms and the establishment of transport, handling and marketing facilitiesand a range of support services (Exhibit 44, p.2). It considered that if crops werethen grown successfully by those participating in the development scheme, privatedevelopment could be expected to follow and the role of the Government wouldthen be reduced to normal support services and infrastructure. In other words, asuccessful programme would act as a catalyst for future agricultural development.200. It noted that the Lapidge Report favoured the Douglas-Daly area inparticular; it agreed that that area had agricultural potential, but it consideredall available areas. It agreed that larger-scale crop development in the Territorywould depend on export markets and that the problems associated with movingfrom domestic to export markets would require 'fairly rapid transition fromsmall scale to large-scale production, to enable bulk handling and full cargoshipments to overseas markets' (Exhibit 44, p.2). It noted that the viability ofindividual farmers had been examined in the Lapidge Report and that a mediumyield (the expected yield) would give a positive gross margin for all crops.201. On the questions of agronomy, land and water, it noted that certain cropsin the Douglas-Daly and Katherine regions were sufficiently promising to warrantintensive investigation. It considered that a possible way of obtaining theinformation necessary to assess the commercial prospects of farming, in advancePage 114

of large scale development, was to establish 'several commercial (pilot) farms ineach area' (Exhibit 44, p.5). The Lapidge Report had not dealt with this approach;the Working Party clearly had the Forster Report in mind (see paras 167-8, 171-3). It considered that there was adequate basic knowledge of the land and waterresources of each area to indicate that cropping development could take place,noting that the area of potential cropping land in the Douglas-Daly district onthe east side of the Daly River was some 60 000 ha; this was land included inpastoral leases together with the Stray Creek block. In addition to that land,there was 'substantial further land near the Douglas-Daly and Willeroo/Manbulloodistricts which could be developed in the future'; see Exhibit 44, p.6. It did notidentify the location of this 'further land'. It noted the need for increasedinvestigation of land and water resources and their development, in advance offarm planning and allocation.202. On the question of land development the Working Party noted that whilea land development scheme could be planned which would meet availablefinancial resources,'once a scheme starts, it must continue until sufficient farmsare developed in an area to form a viable industry, and realise economies ofscale' (Exhibit 44, p.7). It noted that the amount of arable land within a farmwas a critical factor in determining its viability. There was a need to refineproduction techniques, establish the organisational and servicing frameworks,plan farm development and establish basic infrastructure, before farm settlementcould take place. As to these matters it noted that in the case of the Douglas-Daly area:. . fewer of the above requirements have been satisfied and immediate developmentis not feasible.. . . A decision to intensify agronomic, land and water investigations,and commence planning of a development scheme is required now. This programmeshould include commercial pilot farming.' (Exhibit 44, p.7).203. The Working Party noted that for agricultural development to proceed inthe Douglas-Daly area, land would have to be acquired. It identified variouspastoral leases which were considered suitable for agricultural and mixed farming.These included Willeroo, Manbulloo, Jindare, Douglas, Oolloo and Tipperary.There was also the vacant Crown land between Oolloo and Jindare (the 'StrayCreek block'). Compare the Lapidge Report's assessment, at para.193. TheWorking Party discussed the options available for acquiring suitable lands whichwere held under pastoral lease, and the types of tenure under which farmersshould hold their lands. It considered that 'to cater for the variability in landand soil type and to allow the farmers some flexibility in production plans, anarable area of about 1000 ha. would seem necessary' (Exhibit 44, p.10); thisagrees with the Lapidge Report, at para.194. It estimated the cast of predevelopmentrequirements, including survey, land clearing and windrowing, bores,machinery shed, fencing of cleared areas, soil conservation and grass strippingand housing. It set out the criteria which it considered necessary that farmersshould meet to be considered suitable for selection.204. On the question of economics and marketing, it noted that the presentlack of economies of scale in production, handling, storage, marketing andtransportation meant that overseas prices were currently generally below thoseneeded by producers; the problem was therefore that of'achieving a sufficientscale of production to economically service those markets and to realise economiesof scale with imports, eg. fertiliser' (Exhibit 44, p.13). It considered that the bestmarketing arrangement could be achieved by establishing a statutory marketingAuthority. It considered that it was desirable to undertake a cost-benefit analysisof the proposed agricultural development, noting that major benefits were likelyPage 115

to be in the long-term, but that there could be 'no doubt that agriculturaldevelopment can be a major contributor to the economy of the Territory'(Exhibit 44, p.15).205. On the question of transport, storage and infrastructure, the WorkingParty noted that within the Daly River Basin the predominant developmentwould be agriculture. It considered that the two major infrastructure componentswere a main trunk railway and the Darwin Port. Within the Daly River Basin itconsidered that because of the minimal infrastructure facilities which presentlyexisted at the Daly River Crossing, there was a primary need for a 'site suitablefor development of an urban centre in a location within reasonable proximity ofthe main Basin activities but free of flood threat' (Exhibit 44, p.17). Apart fromthe need for normal urban infrastructure it noted the need for infrastructuredirectly related to crop development, including'produce storage, seed cleaning,pest treatment' (Exhibit 44, p.18).206. The Working Party then identified the options available for the developmentof Territory agriculture. It considered that the development of'the AdelaideRiver area [for rice-growing] and the Douglas-Daly area was the preferredcombination' (Exhibit 44, p.24). It noted differing views within its members:some believed there should be fuller planning and assessment of each area beforethere was a significant commitment of funds; others believed that there shouldbe a firm decision to proceed, while recognising that whether the developmentwas viable 'could only be established after several years of commercialdevelopment and production' (Exhibit 44, p.24). The Working Party consideredthat:funding of the development of the Douglas-Daly would place a considerablestrain on the Territory's financial resources. This development would therefore requireCommonwealth or other funding.The Working Party believed that agricultural development in the Adelaide River andDouglas-Daly areas could be viable subject to further detailed investigations at thefield level, preferably with limited, commercial development. The options for sequencewere seen as:· # Further investigations and research on research stations and throughout the areason land, water and agronomy; and/or· # limited commercial development; and/or· # full-scale, commercial development scheme. (Exhibit 44, p.25).207. It considered that for development to proceed in the Douglas-Daly Basinthe necessary infrastructure would have to be supplied by Government and itwould be necessary to acquire land with suitable soils for the development ofindividual farms. It stated that its 'best estimate of the cost of this operation tothe Government is %52 million spent over 10 years as outlined in Appendix 2.(Exhibit 44, p.26). Appendix 2 sets out estimates for the period 1980-81 to 1992-93 for production of various crops, their values, and the costs of investigation,infrastructure, farm development, and continuing costs. It noted the gross valueof production 'at full development of 120 farms' at over $36 million per year.The Working Party noted that several Government departments believed thatthe Government should acquire land in the Douglas-Daly Basin 'so that detailedfarm and regional planning, soil and water surveys and costings can be carriedout with a view to developing the scheme' while others considered that earlyland acquisition would be premature (Exhibit 44, p.26). The Working Partyrecommended that various detailed studies, including further studies of potentialcrops and cropping systems, soil and water resources surveys to identify suitablecrop growing areas to the stage of farm planning, and the investigation of thePage 116

viability of individual farms under normal commercial conditions, should proceed,with a further submission to Government at their completion, in view of thelarge commitment of public monies involved. That is, it recommended thatcommercial pilot farms should be set up. The Working Party considered thevarious options for the administration of an agricultural development schemeand considered that an agricultural development Authority would be desirable,together with statutory marketing authorities.208. In summary, the Working Party supported in principle the need for anagricultural development scheme for the Territory. It noted that the NorthernTerritory Department of Primary Production and the Queensland Departmentof Primary Industries (which had a representative on the Working Party) bothrecommended that the 'Government proceed to acquire land in the Douglas-Daly area and to develop 120 farms over 10 years and associated infrastructureat a cost of the order of $50 million' (Exhibit 44, p.30). I observe that theLapidge Report had made no recommendation for the acquisition of land, andhad stressed the need for 'detailed soil survey...before any large-scaledevelopment proceeds' (para.l91). Those detailed soil surveys had yet to becarried out. However, as indicated in para.207, the majority of the WorkingParty recommended that many detailed studies into aspects it identified, be firstcarried out, and that a further submission then be made to the Government attheir completion,'in view of the large commitment of public monies involved'(Exhibit 44, p.30). This recommendation accords with the Forster Report'sapproach (para.173 and Rules Nos 2 and 3 in para.174).209. It can be seen from the Lapidge Report and the Working Party's evaluationof it that the constraints on agricultural development in the Territory wereconsidered to be lack of knowledge essential for farming, and insufficient scale.The Lapidge Report saw the latter as the major constraint. Nevertheless, itacknowledged the lack of essential knowledge and made it clear that a good dealmore research was required before any form of large-scale development to attainthe necessary scale and its benefits, could safely proceed; see paras 191, 197.(vi) The Northern Territory's approach:a two-stage process210. Having received the Working Party's evaluation in January, in February1980 the Northern Territory Government introduced the AgriculturalDevelopment and Marketing Bill into the Legislative Assembly. The LapidgeReport was tabled and the responsible Minister noted that it indicated thatagricultural development could be successful in the Territory, provided itproceeded as rapidly as possible and was supported financially through thatexpansion until it reached a stage where large quantities of fertiliser importswere required and there was a large output. The Minister said that theGovernment:. has decided to commence a 2-stage program to promote agricultural developmentin the Territory. Stage 2 will only commence provided its implementation is justifiedby the results of Stage 1.. .. We will .. . concentrate on areas which have thegreatest chance of success.The initial areas of concentration will be the Douglas, Daly and upper Adelaide Riverareas. By the end of Stage 2 in the Douglas-Daly area, we would expect to seedevelopment of 120 farms, over a period of 10 years for grain, oil seeds and peanutproduction ...We would provide support to these areas by the provision ofinfrastructure such as good roads, storage and milling facilities and also by the actualinitial development of farms. There will also be increased agricultural research to helpiron out the problems farmers may face. (Hansard, 20 February 1980, pp.2756-7).Page 117

The Minister stated that total direct costs over the period of 10 years wereexpected to be about $62 million made up of $52.5 million in the Douglas-Dalyarea and $9.4 million in the Adelaide River area. He noted that annual productionreturns from crops at the end of the development phase were expected to beapproximately $26 million in the Douglas-Daly area and $4 million in theAdelaide River area. He said that the Government had no intention of purchasingany cattle stations and explained the reason for adopting a two-stage approach,as follows:Members will appreciate that the investment of these sums of money representssubstantial amounts for the Northern Territory, and, being a responsible Government,we want to make sure that this investment has every possible chance of success. TheGovernment will therefore deal with the matter by implementing the agriculturaldevelopment proposal in 2 stages with the introduction of Stage 2 being dependent onsatisfactory results arising from Stage 1 (Hansard, 20 February 1980, p.2757).This approach is not surprising; as the Forster Report put it (para.168).. when it sponsors land settlement, [a government] cannot afford to bewrong'.211. The Minister said that as far as the Douglas-Daly area was concerned,Stage I would consist of:: . the establishment of up to 4 project farms . . . using experienced grain farmerswith proven appropriate expertise under strictly commercial conditions; the expeditionof early soil and water investigations to locate and delineate accurately appropriateindividual farm areas; the initiation of further economic and marketing investigationsdirected to confirming the profitability of individual farm units; the holding ofappropriate discussions with existing land holders with a view to acquiring or securingareas of land necessary for the scheme; and ensuring more detailed infrastructure,planning and programming and the establishment of an agricultural development andmarketing authority. This first stage will proceed for an indefinite period. I wouldexpect, however, there would be a need for subsequent debate in this House on theproposal and, with that in mind, I have included a sunset clause in this legislation toprovide for its expiry on 30 June 1985. This will enable a full review of its operationand a decision by the Assembly of the day on the worth of the program and the needfor its continuation. (Hansard, 20 February 1980, p.2757).This clearly was basically the general approach recommended by the ForsterReport, and by the majority of the Working Party (paras 201, 208). The Ministerstated that Stage 2 of the programme would be the actual 10 year developmentphase. He noted that the Chief Minister had already written to the PrimeMinister seeking financial support for the 'heavy financial burden' involved inStage 2. He stated that the Government believed that an independent Authoritywas the appropriate vehicle for implementing the programme; hence the Billbefore the House.212. He recalled the previous attempts at agricultural development in theTerritory and their lack of success. He identified some of the mistakes whichhad brought that about and continued:In contrast, we propose to provide the framework within which competent farmers canuse their experience and commercial knowledge to develop successful agriculturalenterprises and to help ensure markets for a range of products. Every possible assistancewill be given by government to ensure that the scheme gets off the ground, that cropsare produced and a marketing organisation is able to deal with the crops to theadvantage of the farmers and the betterment of the economic development of theNorthern Territory.This Government strongly believes in a multi-sector economy to ensure economicstability in the Territory. We believe our proposal to foster the development ofPage 118

agriculture . . . is an important dimension in the pursuit of a sound and diversifiedTerritory economy. (Hansard, 20 February 1980, p.2758).213. In the Legislative Assembly, the Bill received bipartisan support. In closingthe debate, the Minister said:The farm owner-manager approach is definitely the concept that must be supported.The large schemes seemed to run out of cash at the wrong time . . . The stagingprocess is the key to the whole exercise to avoid ... putting back agriculture afurther 20 years. I think the staging process will effectively tell government where alarge-scale scheme can be developed successfully. It will allow for examination byinterested persons and interested groups such as the B.A.E. [Bureau of AgriculturalEconomics] to assist us in our approaches for money from the Federal Government. Ithink it is fairly important that the whole exercise be staged. (Hansard, 29 April,p.3054).As to development in the Douglas-Daly Rivers region the Minister said that theprocess:. . will be somewhat slower [than the Adelaide River region] because land will haveto be secured or even acquired. Discussions have taken place with some of thelandholders in that region and we are hoping that satisfactory arrangements can bemade. The target will be that the project farms will be underway in the wet season of1980-81. . . . If you put farmers on the land in a scheme like this, you have to backthem consistently over 30 or 40 years. (Hansard, 29 April, 1980, pp.3054-3055).214. It can be seen that the Government aim in promoting agriculturaldevelopment was to develop a more diversified economy, incidentally creatingcloser settlement through its approach of farm owner-managers. It also intendedto supply the expanding market which was considered to be available for cropswhich could be grown in the Territory. To achieve agricultural development itsobjective in Stage I was to determine whether farming in the Territory could becommercially viable; its vehicle to reach that decision was the development of anumber of family-sized pilot farms. If these farms showed after an 'indefinite'period that large-scale agricultural development would not be commerciallyviable for the farmers, the Government would no longer promote it; there wouldbe no point, since such a development would be simply a drain on the publicfunds and could not be permanent. Viability would be determined on the basisthat output prices were those largely fixed by international commodity prices,while input costs were those for the Australian economy, taking into accountTerritory factors. If and when the pilot farms proved that large-scale developmentwas commercially viable, Stage 2 of the development program would come intoeffect; its objective would be the development of some 120 farms over a 10 yearperiod. Clearly, those numbers could only be approximations in the light of thethen state of knowledge. The Government established ADMA as its means ofimplementing this two-stage programme, when the Bill was passed into law.(vii) The early years of ADMA215. ADMA was established in May 1980; it became operational on 24 July.Under its enabling Act's sunset clause, whether ADMA continued to exist after30 June 1985 would depend on the Legislative Assembly; see para.211. Itsfunctions were 'to investigate, organise and assist in the development andcontinued operation of agricultural projects in the Territory, including theprocessing and marketing of agricultural products' (s.13 of the AgriculturalDevelopment and Marketing Act).216. As noted earlier, the pilot farms were to provide the opportunity to testthe results of research under commercial conditions; they were intended toprovide the economic data which it was hoped would lead to a conclusion thatPage 119

large-scale development of farms would be commercially viable. ADMA proceededto develop pilot farms in the Douglas-Daly area. In 1981 it bought 20 010 ha. ofland within Douglas Station between Hayes Creek and the Douglas River andthe Oolloo road; see Nos 2382, 2383 and 2529 in Exhibit 18 and Appendix 10.This land is about 210 kilometres from Darwin. It is fairly central to the landswith agricultural potential in the northern part of the Daly River Basin; see themaps Exhibit 22A and 25, which show those lands as extending from TipperaryStation in the north-west to part of Mataranka Station in the south-east. TheDouglas parcel was selected on the basis of suitable rainfall and soil types, andease of road access. Work was carried out to locate within the 20 010 ha. suitableareas for pilot farms, on the basis of securing about 1000 ha. of arable land toeach farm. Each farm in fact occupied about 5000 ha. due to the scatteredparcels of suitable soils; this can be seen in Exhibits 18 and 22A. As MrWitherspoon put it at transcript p.1170 'normally we get around about 10 to 15per cent of arable country down in this Douglas/Daly basin'. The balance of nonarableland was intended to be used for the grazing of cattle; see transcript,p.1194. Each farm was soil-mapped in detail, thus enabling the areas for clearingto be accurately defined. ADMA recruited three pilot farmers whom it believedhad the necessary experience, ability and financial resources; they were chosenfrom some 60 applicants. The areas to be cropped were fenced, and housing, amachinery shed, power, water supplies and an access road and airstrip wereprovided by ADMA for each farm; Mr Witherspoon estimated the ADMA inputat about $400 000-$500 000 (transcript, p.1188). ADMA had commenced clearingthe land in April 1981; despite certain restraints on clearing, in the Wet seasonthat year the first two pilot farmers, who had taken up residence in September1981, planted a total of 344 hectares of grain sorghum and 188 hectares ofmaize, with good results.217. The Bureau of Agricultural Economics considered that the 2.5 pilot farmswhich were all that could be created from the Douglas purchase were a subminimalsample. It was therefore necessary to acquire further land, but thisproved difficult and gave rise to delay. Eventually, in March 1982 further landwas acquired: the Government compulsorily acquired the whole of Oolloo Stationcomprising 492 square kilometres. See Appendix 2 for its location.218. I turn aside from the pilot farms at this point, until para.220, to note thatat the same time as it acquired Oolloo, the Government compulsorily acquiredFish River Pastoral Lease comprising 3435 square kilometres and 'known tocontain extensive areas of red earths with potential for agricultural development'(Exhibit 37, p.4). This land was on the west side of the Daly River and had beenrun as part of Tipperary Station; see Appendix 2 and also the map Appendix 2to Volume 2 of this Report. ADMA considered Fish River 'a logical extensionof the Douglas/Oolloo farms', noting however that:The area is inaccessible during the wet season and would require considerableexpenditure by private developers to provide infrastructural facilities. A bridge overthe Daly River is a major consideration.The decision to acquire Fish River at an early stage will enable orderly planning forfuture development to commence.Initial planning prerequisites are detailed soil survey and mapping and selection ofaccess routes. (Exhibit 37, p.6).The Minister said on 23 March 1982 that Fish River had been acquired:.. . to establish a planning base for the expansion of the A.D.M.A. scheme intoStage Two, when it will be opened to the development of many more farms. Theacquisition of this lease was necessary so that surveying and planning for Stage Twocould start and establishment of farms may proceed on schedule. (Exhibit 82, p.4).Page 120

As at March 1982, it may be noted, Stage 1 had barely begun. It was not knownat that time whether large-scale agricultural development would be commerciallyviable; that is, whether there would ever be a Stage 2, or not. The acquisition ofFish River was either a precautionary one in case Stage 2 went ahead, or reflectedthe view some members of the Working Party had earlier expressed (para.207).It is clear that ADMA was concerned with 'orderly planning for futuredevelopment'.219. On 14 August 1982 the Minister said:Interest shown in agricultural potential in the Territory comes mainly from familyunits. The Government believes the best prospect for successful development lies inestablishing family farms. The policy will be continued in farmer selection for Matarankaand Fish River. (Exhibit 39, p.7).The Minister had referred to Mataranka because at the same time as acquiringFish River, the Government had also compulsorily acquired Mataranka Station,comprising 2991 square kilometres and located south-east of Katherine, whichwas'known to contain soils suitable for dryland farming' (Exhibit 37, p.5). Threefarms, each with a minimum of about 1000 ha. of arable land, and a total areaof 4000-5000 ha. each, were carved out of the north-west part which lies withinthe Daly River Basin; however, due to Tindal Air Base requirements, two wereinitially not leased (Exhibit 38, pp.2-3).220. I return to the account of the pilot farms, at para.217. Four more farmerswere settled in 1982 on pilot farms created from Oolloo and part of Douglas.During the 1982-83 Wet season a total of 1839 hectares of maize, sorghum andsoybean were planted on the six pilot farms, together with 415 hectares ofmungbeans. In 1981-82 seasonal conditions had been good but in 1982-83rainfall was very erratic, with a very late start, causing crop losses (Exhibit 38,pp.5-6). It is clear that ADMA was under severe time constraints, a matter initself which was a serious drawback to successful development; see the views ofthe Forster Committee on time, which it considered'the most important aspect',at para.176.221. The pilot farmers all entered into contracts with ADMA, which suppliedthe cleared land and the fixed improvements (as per para.216), paid them aliving allowance and underwrote their losses from the cropping programme,measured against a standard cost. The farmers had to supply all farm machinery,labour and working capital; they met the farm running costs and they retainedthe proceeds of their crop. Mr Witherspoon of ADMA estimated a farmer'scapital input at from $250 000 to $400 000 (transcript, p.1175). They had anoption to buy their farms, if by 30 June 1985 they were shown to be economicallyviable.222. ADMA built a grain receival depot at Katherine in 1981; this was expandedin 1982 and an additional grain receival depot was established close to the sixpilot farms beside the Oolloo road, as shown on Appendix 10. ADMA introduceda marketing scheme for grain crops in which the growers received a first advancepayment, based on 70 per cent of the estimated final price of the crop. It actedas a grain marketing board, operating a grain pooling system and undertakingorderly marketing. It sponsored continuing research into commercial broad-acreagriculture. In its first year it undertook studies to determine the probable scaleof agricultural development in the high rainfall zone; this involved the examinationof suitable soils, and was regarded as 'essential for long term planning requirementsto more accurately define the ultimate scale of an agricultural sector' (Exhibit36, p.3).Page 121

223. In Exhibit 43 the former Chairman of ADMA Mr B.J. Cameron, and MrA.D.L. Hooper, reviewed the early years of ADMA's work, with emphasis on itscontribution to research. They noted that in previous agricultural developmentschemes an inadequate amount of the necessary soil data had been available. Inthe planning of the ADMA scheme extensive use had been made of land unitmapping at a scale 1:50 000 but nevertheless a 'wastage factor at times as highas 50 per cent was experienced between the area calculated from the map to unitand the area assessed for production in the field' (Exhibit 43, p.17). Hence, nodoubt, the reference to a 'usable area' in para.237. The groundwater resources ofthe Douglas-Daly region were being assessed by geophysical surveys and drilling.They noted that research essential to the scheme (that is, Stage 2) was lacking invarious areas and that the Lapidge Report had considered (see para.197) thatthorough soil and water investigations were necessary prior to developmentstarting (Exhibit 43, p.22). Since the start of Stage 1 the facilities and work atthe Douglas-Daly Experimental Station had been upgraded. The paper concludedthat the major deficiency in research lay in the 'objective description of, andaccounting for, the effects of land use and plant-soil interactions over time'(Exhibit 43, p.26). This required research into the capacity and limitations ofarable soils, tillage methods, crop rotations, fertiliser usage, pests, and waterusage and control. These were considered to be major long-term problems. Thepaper noted that 'the ADMA farm scheme, by its nature and operation is, initself, a major experiment' and considered that:On-farm [that is, on the pilot farms] it is highly unlikely that viability will have beenproven by 1985 and the realisation of the full potential of the farms may take ageneration of farmers to achieve.' (Exhibit 43, p.28).That is to say, they considered it 'highly unlikely' that by the time the ADMAlegislation was due to expire in 1985, the question whether a large-scale agriculturaldevelopment in the Daly River Basin was commercially viable would have beenresolved. Stage I would have to continue if that question was to be determined.224. The question of what constitutes 'economically viable' agriculture wasaddressed by Mr Cameron in a paper delivered in 1982, Exhibit 65. He notedthat:...world markets will determine price, while costs will reflect the domesticeconomy . . . agricultural development will occur only if significant and continuoussubsidy is not required to support the development. Therefore production of thecommodity sought must be achieved at a price that makes them (sic) competitive withthe same commodity being produced in other States or overseas. (Exhibit 65, p.42).Mr M. Calvert of the Douglas-Daly Experimental Station put it in a more homelyway at transcript p.1192; he said that a'viable economic concern' meant:Self-supporting. They can run their farms; they can look after their families; they candevelop land; they [the ADMA farmers] can do everything that is needed to be aneconomic business.As the cost of inputs could not be expected to be kept below their market valueMr Cameron considered it was necessary to 'consider the place that on-farmproductivity plays in achieving the objective of a viable agricultural sector'. Henoted that it was because in the Territory there was not yet a 'proven and reliablefarming system' that a two-stage approach had been taken to agriculturaldevelopment. He said in relation to the pilot farms:We required 'whole farm performance', so that development costs can be established,gross farm income and net farm income determined and data generated to completethe benefit-cost study that is required by the Commonwealth in order to assess whetherit will finance the second stage [as to which, see para.225]. (Exhibit 65, p.43).Page 122

He noted that the level of inputs necessary for Territory agriculture was generallyhigher than in many other places, for reasons which he set out. He believed thatADMA had obtained some of the answers on production but there was insufficientinformation to avoid the Stage 1 phase of development.(viii) The interim views of the Bureau of Agricultural Economics225. The Northern Territory Government had sought financial assistance forStage 2 of its proposed agricultural development, from the CommonwealthGovernment; see para.211. In the result, the arrangement was that the Bureau ofAgricultural Economics would undertake a detailed cost-benefit analysis of theproposal before the Commonwealth Government made any commitment to assistthe financing of Stage 2.226. The Bureau considered that it was only after detailed proposals for Stage2 had been formulated--which could occur only when the performance of thepilot farms had been properly assessed--that it would be able to undertake adetailed cost-benefit analysis of those proposals; clearly, that analysis lay severalyears in the future. In 1981, however, the Bureau prepared an interim backgroundreport; see Exhibit 64. In Exhibit 64 the methodology for undertaking the latercost-benefit analysis was discussed; the purpose was to define the scope andcontent of the information which the Bureau would require from Stage 1, toundertake that later analysis. It stressed the importance of the economic data tobe derived from the pilot farms as the basis for preparing any detailed agriculturaldevelopment proposal (Stage 2), and for also evaluating that proposal on a costbenefitbasis. The Bureau considered it necessary therefore that a variety of cropsbe grown on the pilot farms, and alternative production technologies andmanagement strategies employed, so that it could be later seen whether cropsand production practices put forward in any (later) Stage 2 proposal, had beensuccessfully tested by the pilot farmers.227. The Bureau noted the importance of the non-agricultural sectors of theTerritory economy for the type, location, and commercial viability of anyagricultural industries which might develop; and the importance of economicand marketing research to determine the most appropriate crops and the locationof any agricultural development. It observed that if experience on the pilot farmssuggested that agricultural development was an attractive investment, it could beexpected that private ventures would develop existing pastoral leases foragriculture. The Bureau considered that, assuming the pilot farms yielded resultswhich were optimistic,... it will take several years before confidence in the possibilities for agriculturaldevelopment can be expected to materialise into development. (Exhibit 64, p.30).(ix) The Martin Report and the Government response228. In 1984 Martin Corporation Limited examined the achievements of ADMAand made recommendations designed to ensure that it efficiently fulfilled itsstatutory charter. The Martin Report is Exhibit 35. It dealt with the role andobjectives of ADMA, its organisation, the progress of the pilot farms to date,and the steps necessary to achieve a profitable production of crops. The reportalso considered various matters relating to the possible Stage 2 and discussed theneed for diversification from grain production, the various measures ofgovernment support for the pilot farms both for the present and future, and theaccounting and data requirements.229. The report noted that by 31 December 1983 ADMA had spent $3 560 000on recurrent items and $7 824 000 on capital items. The total capital cost forPage 123

the development of the six pilot farms had amounted to $5 000 000 or $839 000per farm (Exhibit 35, pp.23, 25). It noted that the crop yields obtained by theADMA pilot farmers had varied greatly; although the results suggested thatreasonable yields could be obtained, a number of years of additional data wererequired before a confident judgement could be pronounced (p.35). Theconsiderable variation in the production costs of the various farms was thoughtto require detailed investigation. It considered that when compared to otherproducing areas in Queensland and New South Wales, it was clear that for thelevel of costs involved, the yields of sorghum and maize on the pilot farms werelow (p.40). It concluded:Unless yields can at least reach budgeted level there does not appear to be a future forthe production of maize and sorghum in the Territory, without significant reductionsin production costs.It considered that studies were required to determine whether it was realisticallypossible to increase yields and reduce costs to the extent necessary to allowprofitable production of maize and sorghum (p.41). The report considered thatthe pilot farms should not be sold until their income-earning capacity had beenproven, thus establishing a commercial basis for their valuation (p.41). It notedthat results to date had not shown that the farms could be run on a commercialbasis, even with a zero land value (p.46). The report considered that when thescheme of pilot farms was initiated 'the level and form of government supportto the project farmers was not given adequate consideration' (p.46). It noted theimplications for the Government budget of the underwriting arrangements enteredinto with the pilot farmers.230. As to the future the report considered a cautious approach should betaken; it said:. . the scheme should run for a further 5 years so that adequate data is available onwhich to base a reasonable judgement regarding the viability of the project farms anda rational decision regarding Stage 2, may be made on economic grounds ... acouple of good years does not prove the viability of the project. Committing to Stage2 on such a basis could lead to enormous long-term problems. (Exhibit 35, p.51).On the assumption that the pilot farms might later prove that farming in theDouglas-Daly region was viable, the report noted that early consideration shouldbe given to the approach to further land development. It stated that:All that may be required is, once Government policy has been determined, the surveyand subdivision of blocks and then allocation by ballot. (Exhibit 35, p.52).I note that this presupposes that the land in question is available, or can bemade available. The Martin Report considered that there was evidence of apremature commitment to the industry; this was seen in terms of the investmentin grain handling and storage facilities, in the increasing activities by non-ADMAfarmers partly based on Government support schemes, and in the perceivedcapital gains to be earned by existing pastoral/agricultural lessees on subdivisionor development for agriculture (p. 74). The risk was that development initiativesand industry support measures would become entrenched. The report noted thatin part this situation arose from the lack of a clear definition of the benchmarksfor performance. It considered that:The crucial benchmark against which performance should be measured is the extentof annual underwriting payments to the ADMA farmers. (Exhibit 35, p.76).231. The Government received the Martin Report in May 1984. In August theMinister tabled the report in the Legislative Assembly and introduced a Bill toextend the life of ADMA for five years as the report had recommended (para.230),to 30 June 1990. The Minister stressed that:Page 124

It is ... essential for the Government to continue to support the Douglas-Dalyproject [that is, the pilot farms] to enable a conclusion to be reached about thepracticability and financial viability of broad-acre, rain-fed cropping in the Top End.(Hansard, 29 August 1984, p.1053).The Bill was duly passed.(x) A change of pace?232. It will be recalled that if Stage I proved the viability of a large-scaleagricultural industry, Stage 2 was thought to involve a fairly rapid development--the creation of some 120 farms in the Daly River Basin within some 10 years.The Lapidge Report had emphasised the need for fairly rapid development; seepara.186 and also the Minister in 1980 at para.210. In September 1987 theresponsible Minister made a detailed statement in the Legislative Assembly onthe history, current state and future prospects of the Territory grain industry. Hereviewed the events which had led to the setting up of ADMA, and noted howthe industry had since developed: total grain production had increased from3400 tonnes in 1981-82 to 10 050 tonnes in 1986-87. There were now some 40Territory farmers at different levels of production spread over a wide geographicalrange. 8113 ha. was farmed in 1986-87 compared to 2098 ha. in 1981-82, asubstantial increase in the area of cropping; there had also been a widening inthe range of crops grown. While crop yields were still not at a satisfactory level,in general there was an upward trend resulting from improved technology andthe greater experience of farmers.233. The Minister noted that three of the six pilot farms set up in 1981 and1982 were still continuing as pilot farms; the other three had already been sold.A number of pastoral lessees were now developing and releasing farming blocksfrom their pastoral holdings, a process which had led to some integration ofpastoral and cropping activities on those stations. Considerable progress hadbeen made in the basic research essential to the development of an agriculturalindustry. The Minister noted the need to diversify crop production fromtraditional crops such as sorghum and maize, and to diversify cropping enterprisesby using irrigation and by incorporating beef production.234. The Minister stated that:... at least 10 years production is required before a realistic assessment of theviability of a cropping industry can be made. (Hansard, 17 September 1987, p.1329).He noted that because the cropping industry was still in its developmental phase,with a high debt structure for farming operations, it would be necessary forfinancial assistance to be continued for a reasonable period. He stated theGovernment's current aims and approach as follows:While it is the aim of Government to expand the cropping industry together with theprimary and secondary industries, the cropping industry requires a period of consolidationwith existing farmers rather than a concerted effort to significantly increase farmernumbers in the Top End or a massive increase in the area cropped. This approach willallow existing farmers to capitalise on their investment, to improve economic efficiencyand to build on the valuable expertise and experience that they have accumulated inthe difficult agricultural environment of the Top End. The consolidation of existingenterprises will result in increased production on a unit-area basis and reducedproduction costs emanating from improved technology and management practices andreduced costs of basic commodities such as fertiliser, seed and agricultural chemicals.(Hansard, 17 September 1987, p.1330) (emphasis mine).The passage emphasised appears to indicate that the previous intention (para.214)to press on with a rapid development of the order of 120 broad-acre farms overPage 125

a l0-year period as Stage 2, once Stage 1 was considered to have established thatagricultural development at that level was commercially viable, had ceased to bethe Government objective. The sale of the ADMA pilot farms before the expiryof the 10-year period necessary to assess 'the viability of a cropping industry',appears to mean that the essential data which the Bureau of AgriculturalEconomics would require (paras 217, 226) to make a cost-benefit analysis of thedevelopment proposal which would constitute Stage 2, would not be available;without that analysis, the prospect of Commonwealth Government assistance infinancing a Stage 2 development would sharply recede. The Minister observed inwinding up the debate:It is fortunate that the Government resisted a lot of pressure to expand the farmschemes when we first set them up . . . we had faith the effort would determine onceand for all whether the grain industry would succeed. We are now fairly well convincedthat it will succeed.Members are saying that, although we are having bad seasons at present, this programmeseems to be successful. We will judge it afresh in a couple of years and determinewhether Government support should continue. I am confident enough at this stage tosay that it will continue. (Hansard, 29 October 1987, p.2121).The 'Government support' referred to here does not appear to relate specificallyto the pilot farms--which the Minister envisaged would all have been sold withinabout two years--but to the measures of support for the industry in general towhich he had referred.235. In March 1987 there had been a major administrative restructuring in thegovernment of the Northern Territory. ADMA was thereafter administered andfunded from within a Government department. A number of its functionsdevolved to other organisations: grain marketing was transferred to the GrainMarketing Board; the release of land under ADMA's control was administeredby another Government department. Administrative services were provided toADMA by a Government department. Four of the six pilot farms have now beensold. The remaining two have been subleased. Three further undeveloped farmblocks have been sold in the Douglas-Daly area. ADMA no longer owns the FishRiver Pastoral Lease--it has been subdivided and Portion 3435 comprising theland marked on Appendix 9 as 'possible development 20 farms', being the landswith capability for pasture improvement and crop production as shown onAppendices 7 and 8, has been transferred back to Tipperary Station. It appearsthat the scheme for rapid agricultural development on a large-scale as spelledout in para.210 may have been rethought in the light of the experience gainedover the 1980s.(xi) Lands on the west side of the Daly River; potential for agriculture and forpasture improvement236. The lands recommended for grant (apart from Area 2, which is irrelevantfor present purposes) are all located on the west side of the Daly River; see thelands edged red in Appendix 2. They comprise a small parcel of land east ofDorisvale Station, and a large parcel west of that Station. Their agriculturalpotential will now be examined in some detail.237. Exhibit 66 records that on 16 July 1981 the Chairman of ADMA hadbeen directed to prepare an information paper for Cabinet on the availability ofagricultural land and the projected demand for it. In its report of 16 December1981 (Exhibit 66) ADMA noted in a broad assessment that the Daly River Basin'has the greatest potential of all areas of the Top End'; it comprised some1 957 100 ha. of which 8.3 per cent (162 474 ha.) was considered as havingPage 126

potential for agricultural development, though the 'usable' area was more of theorder of 120 000 ha. The Basin therefore was considered to have potential forsome 120 to 140 family farms each containing about 1000 ha. of arable land.The Chairman added:Your attention is drawn to Table 2, which indicates the above average proportion ofagricultural land on Oolloo and the vacant Crown land that is part of the [claim toArea 1]. (Exhibit 66,p.l)The'vacant Crown land' referred to comprised the Stray Creek block, which isnot recommended for grant, and the land east of Dorisvale, the greater part ofwhich is not recommended for grant; see para.l 18(a) and Appendix 2. It can beseen that as at December 1981 ADMA had not failed to note that the claim toArea I had significance for Stage 2; the Minutes show that it was aware of theclaim, by 26 March 1981. The claim to Area 1 was the subject of an ADMAbusiness paper of 3 December 1981 (Exhibit 46) in which it was noted that:A major part of the claim lies within the Daly Basin over extensive areas of Red Earthsoils which have the potential for development. Of the known areas in the VacantCrown Land, the following figures are significant:VCL east of Dorisvale 79 700 ha--20.9 per cent arable. VCL Stray Creek area70 000 ha--7 per cent arable (approx.)A large area between Dorisvale and Tipperary Stations (Fish River) has not beenadequately assessed [this land was assessed in 1982 in Exhibit 21; see paras 238-242].It is clear that full potential for more intensive agriculture and the development ofinfrastructure could be hampered if the land was granted and as a result of the grantwas not available for any form of development. The loss of this land could significantlyeffect (sic) the possible Stage II agricultural development of the Daly Basin andA.D.M.A. intends to challenge the claim on this basis. (Exhibit 46, p.l).The references here to 'the land' and 'this land' could only be to the 'VCL eastof Dorisvale' and the 'VCL Stray Creek area', as ADMA's 'significant' figuresrelated only to those lands. As noted above, the major part of the lands describedabove as 'VCL east of Dorisvale', is not recommended for grant and no part ofthe'VCL Stray Creek area' is recommended for grant. The 'large area betweenDorisvale and Tipperary Stations (Fish River)' has been recommended for grant;see para.ll8 (a) and Appendix 2.238. In 1977 the Conservation Commission had surveyed both Dorisvale Station(area 678 square kilometres) and the land east of Dorisvale marked GL 2074 inAppendix 4 (area 797 square kilometres), for the purpose of determining theirrespective potential for agricultural purposes and pasture improvement, on thebasis of soil type and depth, drainage, slope, rock content, and erodibility.Mapping was at 1:50 000. The Commission's report, Exhibit 20, showed that redand yellow earths with potential for agriculture and/or pasture improvement, onflat to gently undulating plains, comprised about 163 square kilometres ofDorisvale Station and 130 square kilometres of the land east of Dorisvale. Otherlands with potential for pasture improvement occupied 35 square kilometres and68 square kilometres respectively. Little of these lands of capability is withinthat part of the land east of Dorisvale which is recommended for grant. This canbe seen most clearly from the plan Exhibit 22A, which shows the result of allthe soil surveys within the Daly River Basin; it can also be seen from Appendix9 which shows the general location of 10 farms which ADMA thought mightpossibly be developed in the land east of Dorisvale. Appendix 9 (Exhibit 42)represents ADMA's appreciation of the practical effect of the 1977 survey. Itlocates the possible farms mainly in that part of the land east of Dorisvale whichwas not recommended for grant; see Appendix 2.Page 127

239. In 1982 the Conservation Commission carried out for ADMA a land unitsurvey to determine which part of an area of 2500 square kilometres within theDaly River Basin, west of the Daly River, would be suitable for agriculturaldevelopment. The boundary of this survey area is shown in Appendix 7. It canbe seen that part of the land within Fish River Pastoral Lease and part of theadjoining land (shown as G.L. 2082 in Appendix 4, being part of the landrecommended for grant) were surveyed.240. The specific objective of the survey was to determine the agriculturalcapability of these lands for the production of dryland crops, and for improvedpasture development. The report is Exhibit 21. The land units were mapped at1:50 000. It was noted that the climate was markedly seasonal and the pronounceddry season limited the vegetative cover; in the result the high rainfall producedsevere erosion. East of Bamboo Creek (see Appendix 7) the terrain was relativelyflat and encompassed what was considered to be 'potentially the best agriculturalland in the survey area' (Exhibit 21, p.14). Further east were lands with a highagricultural potential, the best areas being on the flatter parts of the JinduckinFormation.241. In the result the report considered that the largest areas having a favourablebiophysical capability for improved pasture and crop production were located asshown in Appendices 7 and 8 respectively. See generally Exhibit 21, pp.80-83. Itwill be seen from these Appendices that some of these lands are within the FishRiver Pastoral Lease and the rest within lands recommended for grant inpara.118. It was estimated that some 22 620 ha. of land within Fish RiverPastoral Lease had favourable capability for crop production, and 47 616 ha. forpasture improvement; the latter included the former, as can be seen by comparingAppendices 7 and 8. However, ADMA sounded a cautionary note:Previous experience . . . would indicate this area [of 22 620 ha.] could be reducedwhen more intensive surveying takes place. No immediate plans are in hand fordevelopment of Fish River . . . (Exhibit 38, p.2).See also observations to the same cautionary effect in Exhibit 43 (para.223),as to a 'wastage factor at times as high as 50 per cent', when it came to assessingan area mapped at 1:50 000 for actual crop production in the field. Mr Wood ofADMA said it had been found on the ground that the average loss of capabilitywas 12 per cent; see transcript p.2071-2. Within the land recommended for grantthe report estimated that 17 300 ha. had a capability for crop production and33 372 ha. (including the 17 300 ha.) for improved pasture. The same cautionarycomment by ADMA would apply.(xii) Conclusions and comments242. ADMA has calculated that, of the total potential arable land west of theDaly River within the Daly River Basin, 49 per cent lies within that part of theclaim area which is west of the river. It can be seen from the figures in paras238 and 241 that this is 49 per cent of the potentially arable areas within thefour parcels therein mentioned: Dorisvale Station, the land east of Dorisvale,Fish River Pastoral Lease and the land west of Dorisvale.243. As noted in para.238 by far the greater part of the 13 000 ha. of potentiallyarable land within the land east of Dorisvale, lies within land which is notrecommended for grant; see paras 109, 118(a). For practical purposes, as can beseen by comparing Appendix 2 with Appendix 9, it is irrelevant to consider thesmall parcel of land east of Dorisvale recommended for grant, when commentingon the Northern Territory Government's proposal for agricultural developmentin the Daly River Basin. It is irrelevant because the amount of land with suitablePage 128

agricultural capability in that parcel is insignificant as far as the Government'sproposal is concerned. What is relevant for the purpose of commenting on thatproposal is that the land recommended for grant west of Dorisvale (GL 2082) isestimated to contain 17 300 ha. of land with capability for crop production and33 372 ha. (encompassing the 17 300 ha.) with capability for pasture improvement,although the arable land actually usable is likely to be less than 17 300 ha. (seepara.241).244. If Stage 2 were to be implemented, ADMA's estimate was that some 20broad-acre family farms might be able to be developed in Fish River PastoralLease, 12-15 in GL 2082, 12 to 14 in Dorisvale Station, and 10 in the land eastof Dorisvale; see Mr Witherspoon's evidence at transcript pp.1381-2 and Appendix9. These estimates were based on the areas of capability land within those fourparcels ascertained by land unit mapping, and were subject to the caveat that'once we are on the ground the situation could change quite considerably'(transcript, p.1384). However, given that qualification, the estimate was thatsome 54 to 59 broad-acre family farms could be developed in those four areasof land west of the Daly River.245. There was considerable legal argument on the question of comment unders.50 (3)(c) of the Act. See, for example, para. 124. I consider that those whoseek a comment under that provision on the basis that a grant would have aneffect on a proposed pattern of land usage in the region, must show what thatpattern will be, and establish sufficient facts from which it can fairly be concludedthat the pattern proposed has a real possibility of being established as a patternof land usage in the region. They must also establish a factual basis from whichit can fairly be concluded that the effect which they contend a grant would haveon that proposed pattern, would in fact result from the grant.246. The Northern Territory Government's submission in relation to thecomment it seeks under s.50 (3) (c) on its proposed agricultural development inthe region of the land claim, may be paraphrased as follows:(I) In the Territory, the land with capability for dryland cropping in the area withthe rainfall necessary for cropping, is limited; the largest tracts of these lands areto be found in the Daly River Basin region.I accept that and observe that 80 per cent of the region has been mapped at1:50 000 and the soils with the necessary capability are shown on Exhibit 22A.(2) A pattern of land usage for the Daly River Basin region has been proposed bythe Northern Territory Government, namely the use of those arable lands in theregion which have the necessary capability, for the agricultural development ofthe region by way of the large-scale creation of broad-acre family farms. Thegeneral objective, once the Government is satisfied that an agricultural industryon the scale proposed would be commercially viable, is to develop about 12broad-acre family farms per year over a l0-year period. In other words, thedevelopment is to be both on a large scale and fairly rapid, with a regionalagricultural industry as the end result.(3) If the pattern of land usage thus proposed--broad-acre farming by a large numberof farmers operating their family farms--is to become and remain a reality, aregional agricultural industry so constituted must be viable. The theory is that theindustry should be of a size sufficient to gain the economies of scale, thusovercoming the disadvantages presently experienced by farmers in the Territory,due to its remoteness.The economies of scale to be gained relate to farming input factors such as thecost of fertilisers; the existence of local service industries providing servicesessential to efficient farm production, of supporting agricultural industries, of astable pool of skilled labour, and of local research and advisory services. ThePage 129

economies of scale also apply to farming output factors, such as transport, storage,handling, processing and market infrastructures. Although no minimum size forthe industry can be fixed at which those economies will be secured, the larger theagricultural industry the greater the possibility of achieving the necessary economiesof scale. This means that most of the land in the region with potential foragricultural use must be used for that purpose. Only by attaining a considerablesize will the economies of scale be secured, and the industry be viable.(4) A grant of those parts of the lands claimed, within which there are identifiedareas of lands with capability for agriculture, would mean that those lands wouldnot be used for agricultural purposes. This is because the claimants lack thespecialised farming experience and skills required to operate broad-acre farmssuccessfully; and further, under the Land Rights Act they could not use theirlands as security to raise the considerable loan capital which would be necessary.Further, experience has shown that a secure alienable title is essential to farming;it is not possible to secure such a title under the Land Rights Act.(5) Given that the agricultural potential of the lands claimed east and west ofDorisvale is not to be utilised following a grant, for the reasons set out in (4)above, the 22 to 25 farms which otherwise might have been developed on thoselands would not be developed. This would have a domino effect: the 32 to 34farms which might have been developed on the other lands with agriculturalpotential west of the Daly, Fish River and Dorisvale, would not then be developed,because the infrastructure costs (including bridging the Daly River) would beprohibitive for a farm development of that limited magnitude. Thus the loss ofthe proposed industry would not be limited to a possible 22 to 25 farms, butwould extend to a possible 54 to 59 farms. A loss of that number of farms fromthe proposed industry would be a mortal wound, in that the industry could notthen attain the size necessary for the essential economies of scale to flow. In theresult, the effect of a grant would be that the industry would be still-born: sinceit would not be considered viable, the proposed Stage 2 would never commence,in those circumstances.( 6) The result of the Territory failing to develop a viable agricultural industry wouldbe that its attempt to broaden its economic base would be frustrated.(7) It would be reasonable for the Minister to await the outcome of Stage 1, to seewhether it is found to justify proceeding with Stage 2, before deciding whether ornot to make a grant. The Northern Territory Government expected to be in aposition prior to the sun setting on the ADMA legislation on 30 June 1990, tohave the necessary review of the results of Stage 1 carried out.This argument was directed to the consequences of a recommendation for agrant of the whole of the lands claimed east and west of Dorisvale; therecommendation made in para.ll8(a) does not extend to the whole of thoselands.See generally Exhibit 15A, pp. 172-189, and Chapter 10 of Exhibit 87.247. It is clear, from the history detailed in paras 184-235, read in the light ofthe earlier history of agricultural development in the Northern Territory, thatthe Northern Territory Government in 1980 instituted an ambitious programmefor the agricultural development of the Daly River Basin on a large scale,involving the creation of many family sized broad-acre farms. How thatprogramme came to be instituted, and the steps taken to implement it, havealready been reviewed; see para. 184-231. Those matters establish in my view aproposed pattern of land usage for that region, along the lines of that programme.The Government took the sensible precaution of protecting the public purse byusing pilot farms (Stage I) to first test the commercial viability of such a largeand costly programme. It is not possible on the materials before me to ascertainwhether Stage I has yet yielded any firm answer to the vital question whether.aregional agricultural industry on the scale envisaged, would be commerciallyPage 130

viable; it is known that grain production has not been as successful as wasanticipated in the early days of the pilot farms (Exhibit 104, pp.9, 10). Therewere several bad seasons in the 1980s. However, detailed information on theoutcome of Stage I of the ADMA scheme should shortly be available; the sunsetclause means that the ADMA legislation is due to expire on 30 June 1990 andan accounting of the scheme is then due to the Legislative Assembly; see paras.211 and 234. The question of a regional agricultural industry is so importantthat it would be reasonable to await the review which should be placed beforethe Legislative Assembly by 30 June 1990, before granting that part of the landrecommended for grant, contained in GL2082.248. However, even if Stage 2 were to proceed as originally planned, I doubtthat a grant of the land recommended for grant would have a deleterious effecton Stage 2. There are two reasons. First, even if the land in GL2082 were notfarmed, on ADMA's estimate there would remain some 42 to 44 broad-acrefarms which might be developed on the west side of the Daly River; it is theimpact of the development of those farms on the economies of scale for theregion that has to be taken into account when calculating the cost-benefits of theinfrastructure costs necessary to farm on the west side of the Daly. Second, forthe reasons set out in para. 250, I see no reason to believe that the landsrecommended for grant would not be farmed, just as other lands with agriculturalpotential in the region in private hands would be farmed as the catalytic effectof the scheme started to operate.249. Even if Stage I proved the viability of Stage 2, the Northern TerritoryGovernment may not now wish to proceed with the expansion of the agriculturalindustry in the manner originally envisaged when the ADMA legislation waspassed in 1980; see paras. 234-5. That should also become clear when theLegislative Assembly discusses the ADMA legislation. It is clear that the NorthernTerritory Government proposes to continue to encourage agriculture in the DalyRiver Basin, though the time frame for further development of the industry tooccur may not now be as rapid as earlier envisaged; it may be that the presentstage is the 'slow and steady' development referred to by the Forster Committeein Rule 3 (para.174). That would also amount to a proposed pattern of landusage for the region for the purposes of s. 50 (3) (c) of the Act.250. I do not consider that a grant of the land recommended for grant wouldhave a deleterious effect on such a proposed pattern of land usage. The timeframe for development is important in this respect, as is the farm size. Asagricultural development in the region steadily proceeds, there is no reason whythe traditional owners would not seek to participate in it, when it becomespractically and commercially feasible to farm lands west of the Daly. The LandRights Act now has more flexibility than in the past; see, for example, s. 19(4A),which contemplates the grant of an estate or interest in Aboriginal land, undercertain controls. There is not the slightest reason why Aboriginals should not begood farmers, though clearly none of the claimants had the necessary skills andbackground to run a broad-acre farm such as the pilot farms. There are otherways of farming broad acres; the kibbutzim system is an obvious analogy. Thereare other modes of security than mortgaging land. There is every reason why theCommonwealth Government should be concerned to remedy the social disasterwhich has occurred since the introduction of equal pay in 1967 uprootedAboriginals from their previous gainful employment on the cattle stations, forcingmany of them to become fringe dwellers with little prospect of work ahead ofthem, a life on the dole and, inevitably, the ravages of'the grog' with itsdestruction of family and traditional life. To provide development funds forPage 131

agricultural pursuits on Aboriginal land well away from towns which have goodprospects of commercial success, would cure many evils at once. Adequatefunding and the efficient management of a farming enterprise are clearly essential.251. Even if the land recommended for grant was not used for agriculture,however, a grant would not affect the gradual growth of farms in the region. Iadd that for the reasons outlined above, I do not consider that the NorthernTerritory Government might suffer detriment if the land recommended for grantwere granted, whether it proceeded with Stage 2 of the ADMA scheme or byway of encouraging a more limited and slower growth of the industry.SUMMARY OF FINDINGS, RECOMMENDATIONS ANDCOMMENTSThe findings, recommendations and comments in this report may besummarised as follows:(1) The Wagiman language-owning group lodged the claim dealt with in thisVolume of the report (para.5).(2) The land claimed solely by the Wagiman is shown hatched black on theplan in Appendix 2; the Wagiman group and the Labarganyayn subgroupjointly claimed the'box-up' area in Appendix 2 (para.5).(3) The claim area includes land reserved for certain public purposes, a miningtenement and land held under a Grazing Licence; it is unalienated Crownland (paras 16-21).(4) The claim area includes the bed and banks of the Daly River, on theboundary of parts of the claim area; the bed and banks are available forclaim (para.22).(5) Historically, Wagiman traditional country lay on the west side of the DalyRiver (para.47). The Wagiman claim to traditional ownership of lands eastof the Daly rests upon their residence there which in historical terms isquite recent (para.48).(6) The lives of senior claimants for a long time were conditioned by the factthat they worked for members of the Liddy family, who owned cattlestations east and west of the Daly River (para.49). It would be wrong toconclude that the boundaries of all of those stations lay within the historictraditional lands of the Wagiman (para.50).(7) The members of the Wagiman language-owning group claimants constitutea local descent group for the purposes of the Act (para.56). Recruitmentto the group is by filiation (Para.55).(8) Certain members of the Wagiman local descent group have commonspiritual associations with sites in the claim area but the evidence does notestablish that 'all the Wagiman' are spiritually affiliated to sites (para.77).(9) Those members who have the necessary common spiritual affiliations tosites constitute a local descent group within the meaning of the Act(hereafter'the claimants' refers to those persons) (para.81).(10) The comparative lack of evidence from the claimants on ceremonial mattersis not an example of a 'strong law' (requiring matters of ceremony to bekept secret) concealing an active ceremonial life (para.86).Page 132

(11) There is sufficient evidence to establish that the claimants' spiritualaffiliations to sites are such as to place their group under primary spiritualresponsibility for the sites and land, other than in the 'box-up' area, wherethat responsibility is shared (para.92) with the Labarganyayn local descentgroup (para.83).(12) The claimants are entitled by Aboriginal tradition to forage as of rightover the claim area (para.95).(13) The claim area embraces four discrete areas of land; see Appendix 2. Theseare considered separately when considering the strength of spiritualaffiliations and responsibility, and of traditional attachment (para.l03).(14) The claimants' spiritual responsibility and traditional attachment are strongin relation to Area 2 (Douglas Hot Springs Nature Park), those parts ofArea 1 shown edged in red in Appendix 2 (not extending to the bed andfar bank of the Daly River) and to the 'box-up' area. They have notestablished strong spiritual affiliations and responsibility, or a strongtraditional attachment to Areas 3 and 4 or to those parts of Area I whichlie outside the lands edged in red and the 'box-up' area in Appendix 2(15) The findings are that the claimants listed in para.ll2 (4) are the traditionalAboriginal owners of that part of the claim area edged in red in Appendix2; and that they share traditional Aboriginal ownership of the 'box-up' areawith the Labarganyayn local descent group. These areas are unalienatedCrown lands (para. 112).(16) None of the claimants live in the claim area; therefore s.50(4) (a) of theAct does not apply (para.l 13). The application of the principle in s.50 (4) (b)does not assist in deciding whether to recommend a grant (para.ll7).(17) The recommendations are:(a) that the lands edged in red in Appendix 2 be granted to a single Land Trustfor the benefit of the traditional Aboriginal owners identified in para.ll2 (4);and(b) that the 'box-up' area in Appendix 2 be granted to a separate Land Trust forthe benefit of the traditional Aboriginal owners identified in para.112(4)together with the Labarganyayn traditional owners identified in para.68 (5) ofVolume 2 of this Report.(18) Not less than 205 Aboriginals would be advantaged if the claim wereacceded to (para.l20).(19) The main advantage to the traditional owners of a grant would lie in theirsecurity of title, with better ability to protect their sites by control of accessto them. In relation to Area 2, they would have the opportunity to beinvolved in the management and control of the Park, and may deriveeconomic benefit from it (para.l20).(20) The Northern Territory Government is eligible to raise the question ofdetriment, under s.50 (3) (b) of the Act (para.123).(21) No other Aboriginals or Aboriginal groups might be detrimentally affectedif a grant were made of the lands described in item (17) above (para.126).(22) If agreement is reached on the terms under which Douglas Hot SpringsNature Park (Area 2) is to be managed, and reliable access by the publicto the Park is thereby secured, the detriment which otherwise would resultfrom a grant of the Park will not arise (para.135).Page 133

(23) Unless the public retains access to the west bank of the Daly River whereit flows past the lands edged in red in Appendix 2, detriment to the publicwould result from a grant of those lands (para.136). A declaration unders.ll(l) of the Aboriginal Land Act (N.T.) in relation to the west bankwould remove the detriment (para.136).(24) The need, in the event of a grant, for a permit under s.5 of the AboriginalLand Act (N.T.) to obtain access to certain areas said to be of recreationalvalue or of historical, cultural or archaeological significance does notinvolve a detriment, in the circumstances of the case (paras 138, 139).(25) There are mining interests in the parts of Area 1 recommended for grant;no evidence was sought to be given by the holders of those interests, andit is reasonable to conclude that they do not as yet consider they mightsuffer detriment from a grant (para.142).(26) The only current grazing licence in the claim area is No. 2141; there isnothing to suggest that ADMA will suffer detriment from the loss of thisgrazing licence (para. 143).(27) Owners of stations adjacent to the claim area raised concerns in relationto access for bushfire control, retrieval of stock and control of feral animals(paras. 144-146). There is nothing to suggest that the usual arrangementsbetween neighbouring pastoralists could not be struck with traditionalowners in relation to retrieval of stock and shooting of feral animals;statutory provisions for fencing and bushfire control apply to Aboriginalland (para. 144).(28) Roads numbered 1, 11, 13 and 15 in Appendix 4 are public roads; it isreasonable to reserve from grant a strip 100 metres wide along the courseof these roads (paras 150, 152). The existing gravel pits and their accesstracks (items Nos. 12 and 14 in Appendix 4) may continue to be usedunder s.14 of the Act; to provide for the extraction of gravel from areasadjacent to the existing pits, a reservation of 90 000 square metres aroundeach pit would be reasonable. Reservation of strips 50 metres wide alongthe access track, is reasonable (para.l51). The tracks numbered 16 and 18in Appendix 4 are not public roads; the track numbered 17 is a publicroad (para.153).(29) Section 14 of the Act enables the Northern Territory Government to keepits river gauging stations and registered bores; access is secured by s.70 ofthe Act (paras. 154, 155).(30) Many of the extensive powers of the Northern Territory Government underthe Control of Waters Act (N.T.) may not be capable of operatingconcurrently with the Land Rights Act. This can be determined only inthe facts and circumstances of the particular case (para.157).(31) In the absence of evidence as to the continuing public nature of historicalroutes and bridle paths, these tracks cannot be excluded from a grant. Ifone or more of these historical routes is later shown to be a public road,its inclusion in the grant will not affect its character as a public road (para.158).(32) The Northern Territory Government instituted a two-stage programme tocreate a regional agricultural industry in the Daly River Basin (para. 210).ADMA was established in 1980 to implement this programme (para. 214).The life of ADMA was extended from five years to 10 years (para. 231).Later, the Government may have rethought the question of the pace ofdevelopment (para. 235).Page 134

(33) Lands within the claim area have potential for agriculture (paras. 238,241). Not all were recommended for grant; for practical purposes, the landeast of Dorisvale recommended for grant is irrelevant to comment unders.50 (3) (c) on the Government's proposed regional agricultural development(para. 243).(34) A grant of the land west of Dorisvale recommended for grant would notdeleteriously affect Stage 2 of the Government's programme for regionalagricultural development (para. 248), or a programme for development ata slower pace (para. 250).Darwin22 March 1990LEGAL REPRESENTATIVESD. A. Parsons and R. Blowes, for the claimantsT. I. Pauling Q.C., with J. D. Barrett and N. Henwood for the Attorney-Generalof the Northern Territory, and the Government of the Northern TerritoryP. McNab and P. Harthoorn, for the Commonwealth of AustraliaP. Tiffin, counsel assisting the CommissionerCONSULTANT ANTHROPOLOGISTProfessor B. SansomLIST OF WITNESSESCLAIMANTSAdultsBaybay, Mick HuddlestonBenburr, Paddy HuddlestonIjandan, Bobby CadellJabulgari, George Huddleston JuniorJabulgari, George Huddleston SeniorJanungman, Nellie HuddlestonKartinyan, Daphne HuddlestonKitjula, Elsie TalbotKumayi, Tony LiddyKumbitbita, Clara Liddy (also referred to as Atjangga)McDowell, DennisMilguyari, Douglas JackMuwuya, Teresa Muggleton (also referred to as Huddleston)Page 135

Nugalalatj, David KingPalampal, Don LiddyTalbot, KevinTalpalngali, LuluWananjirri, Fred MuggletonWinbalgari, Kalway, Hector WilsonWujinma, Dolly HuddlestonChildrenBeru, Fred MuggletonGeli, Keith MuggletonIgondongbu, Noni GeorgeJatparr, Cedric HuddlestonKalambara, Patrick HuddlestonKapuya, Jeffrey HuddlestonKayja, Reggie HuddlestonMamuyuk, George HuddlestonMiniyan, Yvonne MuggletonNgulgurdi, Brenda HuddlestonYalyimpu, Verona HuddlestonOTHER WITNESSESAh Toy, J.Calvert, M.Chase, Dr A. K.Dunne, G. C.Ednie, J.Grattan, K. W.Harrower, J. K.Hearn, W. R.Hooper, A. D. L.Huddleston, IvyJohncock, G.Jones, K.McBean, I. R.McGrath, Dr A. M.MacQueen, A. D.Meehan, Dr B.Prichard, K. C.Reed, M. A.Royle, T.Stevens, M.Page 136

Teece, L. J.Thomas, W.A.Whitehead, B. R.Wilson, R. W.Witherspoon, J. J.Wood, B. G.LIST OF EXHIBITS RELEVANT TO WAGIMAN CLAIM1. Claim Book for the amalgamated Upper Daly Land Claim, by DrA. K. Chase and Dr B. Meehan; 1983 (54 pp., plus annexures).1A. List of nine corrections to Exhibit 1; 1983.2A. List of claimants in amalgamated claim, including Wagimanclaimants and their 10 genealogies; 1983 (see also Exhibits 17A,17B and 55A).3. List of 209 Wagiman claimants, with index to their genealogies (seealso Exhibit 55A).4. Historical submission: 'Aborigines and Colonialism in the UpperDaly Basin region', by Dr A. McGrath (57 pp. plus annexures).5. List of 219 sites in the amalgamated claim (see also Exhibit 92).5A. List of five sites named in Exhibit 1 but not located on Exhibit 6;and 30 corrections to Exhibit 5.6. Map of sites listed in Exhibit 5 (see also Exhibit 90).7. Affidavit of compliance with Practice Directions, by J.A. Thomson;13 September 1983.8. Documents relating to creation of Douglas Hot Springs Nature Park,Umbrawarra Gorge Nature Park, Fish River Forestry Reserve, andBusiness Area 8B within Umbrawarra Gorge.13. Transcript of sound-track of videotapes Exhibit 61A and 61B;Northern Land Council, November 1984 (182 pp.) (see also Exhibit14. Map of sites about which claimants gave evidence in Exhibits 61Aand 61B (see also Exhibit 13).15A.&C. Northern Territory Government supplementary documents, asamended (189 pp.).15B. Map of 18 numbered roads and tracks within the claim area.15D. Photographs of Douglas Hot Springs Nature Park (9), UmbrawarraGorge Nature Park (5) and Oolloo Crossing (4).16A-C.Three photographs of persons at Old Douglas Station homestead (inM. Fleming's time).17A. Revision of Wagiman claimants' genealogies in Exhibit 2A (see alsoExhibit 55A).17B. Revision of list of Wagiman claimants in Exhibit 2A (see alsoExhibits 3 and 55A).18. Topographic maps 1:100 000 Tipperary and Jinduckin, showing sixADMA farms, and arable lands located within ADMA lands andclaim area (GL 2082).Page 137

19. Statement by Department of Aboriginal Affairs on assistance givento claimants; December 1984.20. Report on the Land Units of the Dorisvale Area (55 pp.); B.G.Wood, 1978.21. Land Units of the Fish River--Oolloo Area N.T.; J.M. Aldrick,May 1984 (104 pp.).22A. Large map showing lands suitable for agriculture.22B. Overlay of Exhibit 22A, showing boundaries of claim area.23. Table showing distribution of arable land within Daly River Basinin relation to land units mapped 1:50 000; October 1982 (see Exhibit25 for map).24. Report on the Land Units of the Fenton Area, Douglas Station,N.T.: S.J. Lucas and D.P. Siverston, November 1983.25. Map of lands in Daly River Basin surveyed for agriculture at1:50 000, from Tipperary to Mataranka North (see Exhibit 23 fortable).26. 'Cropping in North Australia: anatomy of success and failure': edit.by F.H. Bauer, 1977 (263 pp.).27. Summary of Q.B.F.C. grain and beef scheme at Peak Downs,Queensland, 1948-1952; with later developments and statistics.28. Copy letter W.S. Brown to R. Wilson, 22 August 1979.29. Legal submission by counsel for NT Government in reply to Exhibit30, on relevance to detriment of certain materials on mining(documents 1, 5 and 6 in Exhibit 15A); January 1985 (7 pp.) (seealso Exhibits 30 and 54, and Appendix 1).30. Legal submission by counsel for claimants, objecting to admissibilityof certain Northern Territory Government materials on mining (seealso Exhibits 29 and 54 and Appendix 1); 6 pp., January 1985.31. Report No. 8/1984 on Douglas-Daly groundwater resourceinvestigations, 1981-1983: P. Jolly, April 1984.32. Map W84/1069, Daly River Basin and Daly Groundwater Basin;August 1984.33. Map W83/3124 of groundwater potential of lands within claim area;and location of registered bores, three river gauging stations, roadsand access tracks, and 7 damsites.34. Extracts from NT Legislative Assembly Hansard recording debateon Agricultural Development and Marketing Bill; February-April1980.35. Review of ADMA by Martin Corporation; 22 May 1984 (78 pp.).36. ADMA Annual Report, 24 July 1980--30 June 1981.37. ADMA Annual Report, 1981-82.38. ADMA Annual Report, 1982-83.39. 'The future of agricultural development in the Northern Territory':statement by the Minister for Primary Production, 14 August 1982.40. Extract from NT Legislative Assembly Hansard, 29 August 1984;Ministerial statement on Martin Corporation review (Exhibit 35).Page 138

41. 'Investigations into production, handling and marketing ofhorticultural and agricultural produce--Northern Territory': interimreport by Queensland Department of Primary Industries, September1979 (109 pp.) (Lapidge report, Vol.l).42. Map C.P.4595 of claim area, existing ADMA farms and locationsand numbers of possible future farms.43. 'The agricultural development and marketing scheme in the NorthernTerritory': B.J. Cameron and A.D.C. Hooper (29 pp.).44. Report of the Northern Territory working party on Exhibit 41.44A. Rough map of arable lands in Douglas/Daly region.45. RESTRICTED. Extracts from Minutes of ADMA Board meetings,March 1981--November 1982.46. ADMA Business Paper, 3 December 1981, on claim to Area I.47. ADMA summary of standard direct costs of production, farmoverheads and other costs of project farmers to be underwritten for1984-85 financial and crop year.48. RESTRICTED. Extracts from ADMA Minutes, November 1980--May 1983.49A. ADMA's six project farms: estimates of ADMA's crop underwritingcosts 1982-83 and 1983-84: 18 January 1985.49B. ADMA project farms; estimated nett costs to ADMA of guaranteedminimum price scheme for 1983-84 crop.49C. ADMA project farms: grain production, 1982-83, 1983-84 and(projected) 1984/85.49D. ADMA project farms: grain production 1982-83, 1983-84 and(projected) 1984-85, with estimated market values and costs toGovernment of crop underwriting and guaranteed minimum pricescheme.50. Curriculum vitae: William Ramsey Hearn.51. Extract from transcript of evidence of W.R. Hearn and N.D.Westbury in Jawoyn (Katherine Area) land claim inquiry.52. Copy Agricultural (Cultivation Farm) Lease No.498 in perpetuity,in respect of Kybrook Farm.53. Brief history of 11 pastoral leases adjacent to or near the claimarea.54. Submission by counsel assisting the Commissioner on Exhibits 29and 30. (see also Appendix 1).55A. List of Wagiman claimants, with II genealogies (replacing list ofWagiman claimants in Exhibit 2A and 3, as revised in Exhibits 17Aand 17B).56. Curriculum vitae: Dr A.K. Chase.57. 'Archaeological evidence as to the antiquity of Aboriginaloccupation': R. Jones, B. Meehan and A. Chase (4 pp.).58A. RESTRICTED. Transcript of male claimants' evidence, II and 12December 1984; and of Dr A.K. Chase, 22 and 24 January 1985.58B. RESTRICTED. Transcript of female claimants' evidence, 7December 1984.Page 139

59. Proposal by claimants for consultative management of UmbrawarraGorge Nature Park, Douglas Hot Springs Nature Park (Chuluwan)and Butterfly Gorge Nature Park (3 pp.).60. Curriculum vitae--Dr. B. Meehan.61A. Videotape of claimants' site tour, sites 1-30 (see also Exhibit 13).61B. Videotape of claimants' site tour, sites 31-43 (see also Exhibit 13).62. Tourist brochures.63. Lists of Wagiman claimants accompanying Dr Chase and Dr Meehanon mapping trips, March 1980: October 1983; 25 January 1985.64. 'Background report on agricultural development in the NorthernTerritory: some economic considerations': G. Martin, Bureau ofAgricultural Economics, 1983 (46 pp.).64A. 'Agricultural development in the Northern Territory: some costbenefit analysis considerations': Bureau of Agricultural Economics,September 1981 (Working draft) (57 pp.).65. 'The role of the Agricultural Development and Marketing Authorityin sponsoring agriculture': B.J. Cameron (4 pp.) 1982.66. ADMA report on availability of, and projected demand foragricultural land; December 1981.67. 'Prospects of agriculture in the Northern Territory': report of theForster Committee.68. Map of existing and proposed fencing at Wambungie outstation,Bradshaw.69. 1:100 000 survey map 5069 (Wingate Mountains), with Fish RiverGorge marked.70. Map of present and historical boundaries of Dorisvale Station.71. Copy extract from Land Board report on Dorisvale, July 1981.72. Northern Land Council procedures for processing applications forExploration Licences on Aboriginal land: December 1984 (4 pp.,with annexures).73. ADMA notes of meeting of Go-ordinating Committee, 26 March1982, on development of its Oolloo, Fish River and Matarankaproperties.73A. Letter to Department of Transport and Works from ADMA; 14April 1982.74. Map S.76/66 of Business Area 8B at Umbrawarra Gorge.75. Copy pp.1621-1680 of transcript of Jawoyn (Katherine Area) landclaim hearing, being (evidence of Mr J. Ah Toy).76. Two pp. from magazine Hooves and Horn; December 1983.77. Map C.P. 4595 with historic tracks and roads, and vertical andhorizontal control stations within Areas 1 and 4, marked.78. Old map showing 'the chief metalliferous regions south from PortDarwin', between latitudes 13 and 15, with tracks; 30 September1919.79. Three maps 1:250000 (Fergusson River, Mount Evelyn andKatherine) with old roads and tracks in vicinity of claim areamarked.Page 140

80. Map approximate scale 1: 716 000 Delamere, showing historic trackswithin claim area.82. Press release by Minister for Primary Production on ADMA farmsand the acquisition of three Pastoral Leases; 23 March 1982.83. Map showing Douglas, Jindare and Dorisvale as cattle stations onwhich Wagiman claimants worked.84. Written submission on behalf of Conservation Commission andTourist Commission, with respect to Areas 2 and 3 and ButterflyGorge Nature Park (see also Exhibit 94).85A. & C. Report by Professor B. Sansom on the claim; February 1985.85B. Corrections to Exhibit 85A.86. Conspectus by counsel for Northern Territory Government ofprevious comments and statements on s.50(3)(c) (7 pp.) (see alsoExhibit 102A.87. Submission by counsel for the Northern Territory Government asto effect of a grant of Area I on proposed land usage in the region;15 March 1985 (Chapters 1 to 10) (see also Exhibit 100).88. Submission by counsel for the Northern Territory Government onlegal status of bed and banks of the Daly River and as to detrimentin the event of grant; 12 March 1985 (20 pp., with annexures) (seealso Exhibit 93).89A-G.Copies of Pastoral Lease 748 over Portion 1190, and subsequentCrown Lease Perpetual No.93 (Oolloo); Agricultural Lease No.752(Portion 1188); Special Purposes Lease No.112 (Portion 769);Pastoral Lease No.736 over Portion 1167 (Dorisvale); Pastoral LeaseNo.735 over Portion 1166 (Florina); and Pastoral Lease No.738over Portion 1169 (Claravale).90. Map locating sites listed in Exhibit 92 (being Exhibit 6, as amended);12 March 1985.91. Submission by Northern Territory Government as to public roadsin Exhibit 15B.92. Amended list of 288 sites in the amalgamated claim (see alsoExhibit 5).93. Submission by counsel for claimants in reply to Exhibit 88; 13March 1985.94. Submission by counsel for the claimants on application ofss.50 (3)(b) and 50(3)(c) in event of grant of Areas 2 and 3; 13March 1985 (4 pp., with annexure) (see also Exhibit 84).95. Partial index to transcript and list of exhibits.96. Submission by counsel for the claimants; March 1985 (10 chapters).97. Submission by counsel assisting the Commissioner: Part 1, thetraditional land claim (44 pp.).98. Submission by counsel assisting the Commissioner: Part 2, mattersfor comment (31 pp.).99A. Submission by counsel for the Northern Territory Government ononus of proof and the evidentiary burden.Page 141

99B. Submission by counsel for the Northern Territory Government oneligibility of Government to seek comments on detriment unders.50 (3)(b); 15 March 1985 (see also Exhibit 102B).99C. Submission by counsel for the Northern Territory Government onterminology in ss.50 (3) (b) and 50 (3)(c); 15 March 1985.100 Submission by counsel for claimants, in reply to Exhibit 87; April1985 (45 pp., plus chronology) (see also Exhibit 101B).101A. Submission by counsel for the Northern Territory Government onthe claimants' strength of attachment (s.50(3), and on s.50(4)principles; 14 April 1985 (7 pp.) (see also Exhibit 103).101B. Submission by counsel for the Northern Territory Government inreply to Exhibit 100; 14 April 1985 (12 pp.).101C. Submission by counsel for the Northern Territory in reply tosubmissions by counsel for the claimants at transcript pp.2485-9;14 April 1985) (8 pp.).102A. Conspectus by counsel for the claimants of previous comments andstatements on ss.50(3)(b) and 50(3)(c); and submission as to theproper approach, 27 March 1985 (24 pp.).102B. Submission by counsel for the claimants on scope of'communities'in s.50 (3) (b), in reply to Exhibit 99B; 27 March 1985 (10 pp.).103 Submission by counsel for the claimants on strength of attachmentin s.50 (3), in reply to exhibit 101A; 21 May 1985 (7 pp.).104. Further submission on detriment by Northern Territory Government;April 1989 (21 pp. plus 15 annexures).Page 142

APPENDIX 1QUESTION OF ADMISSIBILITY OF NORTHERNTERRITORY GOVERNMENT MATERIALS DIRECTED TOESTABLISHING DETRIMENTRuling delivered 29 January 1985 (see transcript p. 2055)The evidence in this claim relating to traditional ownership is in. I am nowreceiving evidence on the question of the detriment to others which might resultif the claim were acceded to; see s. 50 (3) (b) of the Act.For that purpose, the Northern Territory Government has submitted a bulkyvolume, labelled for convenience Exhibit 15A, and entitled'Northern TerritorySupplementary Documents'. The claimants contend that certain documents inthat volume, relating to mining, are not admissible; and that if I admit them forconsideration, I am bound to disregard them or not to comment upon them inmy report. Their written submission is Exhibit 30.The documents objected to are indexed as nos. 1, 5 and 6; the first and last twoparagraphs of Document I are not objected to.Document I (pp. 1-4 of Exhibit 15A) is a submission from the Secretary of theDepartment of Mines and Energy, Mr T.C. Lovegrove. It contends that:The grant of the land claim would slow mineral and industrial development in theNorthern Territory, to the detriment of all people.The thrust of the submission is that this would come about because of:. . the delays imposed on the mining industry by the current legislative provisionsand administration of the Aboriginal Land Rights Act in the Northern Territory.In support of this contention that delays would result, Mr Lovegrove relies uponDocument 5, a 40-page submission from the Northern Territory Government ofMay 1984 to the Government of Australia entitled 'Delays to Mineral Explorationresulting from the Aboriginal Land Rights Act'. Mr Lovegrove concludes inDocument 1 that the Act:.. . appears to be unworkable in relation to its exploration and mining provisions.The uncertainties, delays and extra costs inherent in the Land Rights legislation andin its application are a major constraint to the orderly development of the Territory'smineral resources.He contends that:The impact of the Aboriginal Land Rights Act is such that some companies will notoperate in the Territory and others have closed their operations or are maintainingonly a watching brief. Examples include Esso, Mobil, Western Mining and Geopeko.Many staff have been retrenched and many specialist staff have been lost to the miningindustry. With the continued problems relating to access to Aboriginal land forexploration, many more companies will withdraw interest in investing on Aboriginalland, and possibly the Territory.As an example he cites the experience of Mobil Energy Minerals Australia Inc.in relation to the claim area. He says:The NLC was advised of Mobil's exploration interests in the Daly River Land ClaimArea in December 1981 with a request that the claim be expedited. Repeated requestsfrom the company for information and indications of progress have been met byprocrastination and repeated delays. After 16 months of fruitless communications andfrustration, the company in April 1983 advised of the retrenchment of explorationstaff and the closure of its Darwin and Australian operations.Page 143

Mobil has seen its exploration team reduced from some 20 persons and an annualNorthern Territory expenditure of $1 million a year in 1978 to the current situationwhere all its exploration staff have been retrenched and its budget reduced to a levelwhere only a watching brief is provided.Document 5 (pp. 8-48 of Exhibit 15A) purports to:. . examine the nature of the delays imposed on the mining industry by the currentlegislative provisions and administration of the Aboriginal Land Rights Act . . .It includes.. . statistical findings of a survey of all companies who have applied for explorationlicences over Aboriginal land and who have received offers of licences from theMinister for Mines and Energy.Document 5 concludes that the Act is 'unworkable in relation to its explorationand mining provisions', the major reason being'the veto that Aboriginals canexercise over exploration for and mining of Crown minerals'. It considers that'significant changes (to the Act) beyond those proposed by Justice Toohey (in hisreport 'Seven Years On' of December 1983) will be needed'.Document 6 (pp. 49-65 of Exhibit 15A) is a list of the offers by the Minister forMines and Energy of exploration licences over Aboriginal land, subject toagreement being reached with the relevant Land Council; these appear to be thecompanies a statistical survey of which constitutes the foundation for much ofthe analysis in Document 5.The claimants contend that these documents are not admissible, because thematters they raise do not amount to 'detriment' within the meaning of s. 50 (3) (b)of the Act, are not relevant, and are not supported by those who would sufferfrom the alleged detriment. I now deal with each of these objections.The Commissioner is required by s. 50 (3)(b) of the Act to comment in hisreport on:the detriment to persons or communities including other Aboriginal groups thatmight result if the claim were acceded to either in whole or in part.What amounts to 'detriment' within the meaning of this provision has beenconsidered in reports on several land claims.In the Warlpiri and Kartangarurru-Kurintji claim, an oil exploration companyhad in effect contended that the application of s. 43 (2) of the Act (requiring itto enter into an agreement with the Land Council before it could obtain a lease)amounted to detriment because it meant that the company would not know, atthe time of carrying out its high-cost exploration, the terms on which it wouldbe able to produce petroleum following a discovery. Under the then Petroleum(Prospecting and Mining) Act its obligations were known and fixed. The claimantscontended that this was an argument with the Act, not with the land claim. TheCommissioner, Mr Justice Toohey, considered that the claimants' argument wascorrect. He considered that when s. 50 (3) (b) spoke of detriment:. . it is I think looking at something that is the product of a grant of land to a LandTrust rather than of the Act itself. (para. 328 of the Report).Thus there would be detriment:. . if such a grant made it difficult for Magellan to get access to the area it wishedto prospect or deprived it of the most economical way of removing the mineralproduct . . . especially in a situation of known petroleum with reasonable prospectsof mining in the near future. (para. 328 of the Report).In his report on the Finniss River claim, his Honour reconsidered this approach,noting that in the Warlpiri claim none of the mining interests had incurred anysubstantial expenditure or had reasonable expectation of economic return. HePage 144

pointed out that if the exploration companies' submission on the effect ofs. 43 (2) were accepted:.. . it can always be said that acceding to a claim will cause detriment. I questionwhether that sort of comment is envisaged by s. 50 (3) para. (b) of the Act and whetherit is likely to be of any assistance to the Minister . . . it seems to me that the relevantdetriment is one likely to arise because a particular area of land becomes Aboriginalland. This may present problems of access; it may require a mining company totransport minerals over a longer distance hence causing the company additionalexpense . . . I am not persuaded that s. 40 of itself represents a detriment within themeaning of the Act even though the section will operate once a grant has been made.If it does it is a detriment considered and deliberately created by Parliament, hardlyrequiring comment by the Commissioner. (para. 283 of the Report).In his report on the Alligator Rivers Stage II claim, his Honour commented onhis views in the Finniss River claim:I took the view that s. 40 of the Land Rights Act did not of itself represent a detrimentin terms of the Act because it was part of a scheme considered and deliberately createdby Parliament. What the Act looks to is detriment likely to arise if a particular areabecomes Aboriginal land, for instance problems of access that may arise. I thought itrelevant also to have regard to the situation of a miner who had incurred substantialexpenditure under an exploration licence where there is a reasonable expectation ofeconomic return. (para. 315 of the Report).In the Nicholson River report, I expressed the view that:The process contemplated by Part 4 of the Act in relation to mining interests cannotbe said to be a detriment that might result from the claim being acceded to. (para. 261of the Report).This general statement must be read in relation to the facts of the particularclaim, where miners gave no evidence.In the report on the Cox River claim, I adopted the views expressed by MrJustice Toohey in the Finniss River report, and considered that the detrimenton which comment was required by s. 50 (3) (b), concerned matters which mightarise if the particular land under claim became Aboriginal land; see paras 141-2of that Report. I declined to treat as detriment the fact that after a grant s. 67of the Act would apply so as to disable the Northern Territory Government fromcompulsorily acquiring any part of the granted land for essential public purposes.Similarly, I declined to comment on a contention that ss. 14 and 15 of the Actdid not go far enough for practical purposes. This was because they were notmatters of detriment under s. 50 (3) (b). No factual basis for detriment was laid.I was of opinion that:In short, detriment cannot flow simply because the Act exists; it cannot be a consequenceof a provision taken at large, but it can be a consequence of a particular grant underthe Act. (para. 143 of the Report).The Northern Territory Government submits that:. . if the area is found to have significant potential and if it be found that the N.L.C.could not in the foreseeable future act under s. 40, and if it were found that mining ofbenefit to the Territory Community in general and smaller areas (Katherine, PineCreek) will not be contemplated by mining companies then this is a detriment whichmight result from (inter alia) the grant of land to a trust.It contends that Documents 1 and 5 go to establish those matters from whichthat detriment might result and that they are admissible for that purpose. Thewritten submission is Exhibit 29.The Government considers that on the approach taken by Mr Justice Toohey,the matters referred to would not involve detriment in terms of s. 50 (3)(b). Itsays that his Honour's approach:Page 145

. . would require there to be a mine ready to go or with proven reserves capable ofeconomic mining. This he expressed in the need for the detriment to be 'likely' (seeFinniss River 283) rather than 'possible'.Accordingly, it seeks that a different approach be adopted to what is involved inthe notion of'detriment'.It appears to me that the contention that his Honour's approach 'would requirea mine ready to go or with proved reserves capable of economic mining' goestoo far. When his Honour said, in para. 283 of the Finniss River report:... it seems to me that the relevant detriment is one likely to arise because aparticular area of land becomes Aboriginal land.I think that he intended to emphasise that detriment must flow from the grantof the particular land in question, rather than from the mere existence of thenew statutory regime instituted by Part 4 of the Act. I do not think that heintended to contrast 'likely' with 'possible'; indeed, in para. 255 of the Warlpiriand Kartangarurru-Kurintji report, when noting that 'detriment' was not confinedto the material (as opposed to the spiritual), his Honour stated:.. it is particular detriment to persons or communities that the Act is concernedwith. In speaking of the detriment that 'might result' the Act requires the Commissionerto take a broad view.I respectfully agree that a broad view must be taken. The'detriment' must besuch that it can fairly be categorised as something that 'might result' from thegrant. It is certainly not necessary that there be a 'mine ready to go or withproved resources capable of economic mining'. On the other hand, if the chancethat detriment 'might result' is merely fanciful, I consider it lies outside thescope for comment under s. 50 (3)(b). I agree with Mr Justice Toohey's viewson the limits to matter for comment, at para.175 of the Borroloola report.Mr Justice Toohey emphasised that the facts of the particular claim are vital inconsidering detriment, when he said in the Finniss River report:What was said in the Warlpiri Report was in relation to the situation of the mininginterests there concerned, in none of which had any substantial expenditure beenincurred and in none of which was there reasonable expectation of economic return.(emphasis mine) (para. 280)I think it would be appropriate to mention by way of detriment the situation of aminer who has already incurred substantial expenditure under an exploration licencewhere there is evidence of a reasonable expectation of economic return. Without that,no likelihood of detriment has been demonstrated; the expenditure has been in vainin any event. But I am not persuaded that s. 40 of itself represents a detriment underthe Act even though the section will operate once a grant has been made. (emphasismine) (para.283).It seems that the example given did not in fact arise in the Finniss River claim,though it did arise in the Alligator Rivers Stage II claim (see below). His Honourwas here concerned, I think, to show that there must be an element of reality tosupport a claim for detriment. With that I respectfully agree. I do not think itnecessary to show that detriment will probably occur; weaker examples than thatgiven in para. 283 of the Finniss River report may be sufficient to show thatdetriment might result from a grant. Each case will depend on its own facts.I consider that any detriment must flow from the grant of land. It may arise, forexample, because the effect of the grant is that access to an exploration area maybe impeded; or because of the operation of the provisions of the Act upon someinterest held in the land. Mr Justice Toohey gave an example in the AlligatorRivers Stage II report:Page 146

'While the existence of s. 40 of the Land Rights Act is of itself not a detriment withins. 50 (3)(b), it is a potential source of detriment in the case of a miner who, as here,has incurred substantial expenditure in the reasonable expectation of obtaining mineralleases.' (emphasis mine) (para. 317 of the Report).I consider that s. 40 and other provisions of the Act may be relied upon as asource of detriment by miners who meet the requirement indicated by Mr JusticeToohey, and by other miners who show that on the facts their involvement withthe land under claim is such that it can be fairly said that detriment to themmight result from a grant.I now deal with the admissibility of each of the documents, bearing in mind theobjections by the claimants, the contentions of the Government, and the views Ihave expressed.Document 5 contains materials on the basis of which the submissions inDocument 1 are largely founded. It does not purport to deal specifically with theUpper Daly land claim; it is not concerned with the mineral potential of thatarea. It articulates a number of objections to the provisions and operation of theAct, so far as they affect the mining industry in general in the Northern Territory.Part of the Northern Territory Government argument is that Document 5tends to show that the Northern Land Council could not in the foreseeable futureact under s. 40 of the Act; see Exhibit 29 at p. 7. Document 5 sets out certainstatistical argument designed to show that the process of negotiation between theNorthern Land Council and various mining companies for the purposes of s. 40of the Act has proved to be extremely time-consuming. According to the NorthernTerritory Government, some 23 mining interests-exploration licences and miningtenements of various types--exist within the claim area, involving some 13companies or individuals. Some of these miners may seek to establish that agrant of the land claimed might result in detriment to them; in such a case itmay well be relevant to establish any practical difficulties involved in theirobtaining the consent of the Land Council to the grant of a mining interest. Thestatistical material in Document 5 may be used to support that argument. Tothat extent Document 5 contains materials which may prove to be relevant. Itsweight is another matter. If none of the miners seek to establish detriment,Document 5 will not be relevant. I should make it clear that the bulk ofDocument 5--that part which discusses deficiencies in the provisions of the Actand makes recommendations for legislative change--is not relevant to my dutyto comment under s. 50 (3)(b); however important those questions may be, thisis not the forum in which they can be usefully agitated.Document I is largely a series of submissions based on the material inDocument 5. However, it also provides information about certain recent miningactivity in the Pine Creek area, and gives details of the alleged effect of the Actupon a possible mining activity by Mobil Energy Minerals Australia Inc. in theclaim area--see p. 1 of this ruling. Insofar as the submissions are of a purelygeneral nature--attacking the provisions and working of the Land Rights Act inthe Territory--they are beyond the scope of my concerns under the Act. Insofaras Document 1 presents information of a general nature about current miningactivity, it is useful background material. Insofar as it presents the examples ofMobil Energy Minerals Australia Inc. and Chillagoe Minerals Ltd as illustrationsof the alleged deleterious effect of the Act upon mining activity, and thuspresumably as a detriment to the people of the Territory generally, it again isdirecting itself to matters beyond those with which I can usefully deal. Anyalleged detriment must be referable to a grant.Page 147

In the result, paragraphs I, and 12-13 are not objected to; para.2 is asubmission which Counsel presumably will be putting. Paras. 3-11 summarisethe argument in support of that submission. I am unable to conclude from thematerials in Document 5 that the Northern Land Council 'is unable to dealsatisfactorily with exploration proposals' relating to the claim area. I wouldexpect any factual matters tending to support such an argument to emanate fromthe persons or companies with mining interests in the claim area; none are yetto hand.Document 6 is a list of 165 exploration licences offered to 42 companies bythe Minister for Mines and Energy since June 1981, subject to agreement beingreached with the relevant Land Council under s. 43 of the Act. A statisticalanalysis of the outcome of negotiations between these companies and the LandCouncils comprises a considerable part of Document 5. None of the licence areasin Document 6 appear to relate to the claim area. It is difficult to see anyrelevance of Document 6 to the claim, unless an argument is sought to bemounted by one of the miners with an existing mining interest in the claim area.Accordingly, I propose to admit it on the basis that it may prove to be relevant,if the miners seek to be heard; its weight is another matter.Finally, dealing with the last aspect of the Government's submission on p. 7of Exhibit 29, I do not consider that there is any material in these documentswhich would tend to establish that the grant of the land under claim to a LandTrust might have the result of inhibiting mining companies from carrying outmining of benefit to the Territory community as a whole, or of benefit to thecommunities of Pine Creek or Katherine. The general thrust of the document isthat deficiencies in the Act and its administration might lead to that result; butthat is a different question, to be agitated in the appropriate political forum.Thus far I have considered the documents insofar as their contents bear uponthe issue of detriment in s. 50 (3)(b). Mr Tiffin in his helpful submission asCounsel assisting, has raised the question whether the documents bear upon theissue raised by s. 50 (3) (c) of the Act:. . the effect which acceding to the claim either in whole or in part would have onthe existing or proposed patterns of land usage in the region.I agree with Mr Justice Toohey's view that, as compared to s. 50 (3) (b), s. 50 (3) (c)requires:. . a broader, long-term view not related to particular individuals or organisations.(Borroloola Report, pam. 216).The approach must be reasonably broad, in the geographical sense. Nevertheless,in the absence of any specific information from miners with an interest in theclaim area, or in the region, I am unable to see how the contents of thedocuments can found any meaningful comment on the effect a grant would haveon patterns of land usage in the region, existing or proposed.I consider that, as matters stand, and in the absence of information fromminers concerned, the information and arguments in Documents 1, 5 and 6 donot constitute a foundation for comment on detriment under s. 50 (3) (b) or onland usage under s. 50 (3)(9). They are received; but as matters stand, they donot carry weight on the issues to which they are directed.Page 148

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Appendix 11Page 158