In 1999, the year following the success of the TSILA claim, Warraber residents initiated a native title claim over Warraber and surrounding islands. The NTA demanded a demonstration of emplaced social identity that was subject to much more sharply delimited terms of authenticity and legitimacy than was the case in the TSILA. In particular, the native title process embodies a regime of value that valorises specific forms of continuity with the pre-colonial past.

Warraber people were well aware of the Mabo decision and approved of the idea that this involved the Australian nation recognising Islander possession of Torres Strait islands. However, they also generally considered the ‘hand-over’ ceremony under TSILA in 1998 as being akin to the Mabo outcome. The central issue that created interest among Warraber people in pursuing a native title claim was the gradual realisation that the TSILA land transfer did not actually include Warraber Island itself, but focused solely on surrounding, uninhabited islands. While some residents already knew this, many clearly did not until this was raised in information provided by the Torres Strait Regional Authority (TSRA), the native title representative body for much of Torres Strait.

In 1999 I was engaged by the TSRA to compile a Connection Report (CR) as part of a Warraber native title application covering the terrestrial areas of Warraber, Bara, Guiya, Buboi, Ullu, Ugain, Miggi Maituin, and Dugong islands. Senior staff in the TSRA’s Native Title Office acknowledged that the CR criteria and associated research activities were limited in scope and/or complexity, certainly falling short of anthropological-style explanation. Nevertheless, they sought to address the requirements as fully as possible for the purposes of pursuing a negotiated settlement on behalf of the claimants in the most straightforward manner. To this end, the TSRA research brief followed the preferred structure and guidelines provided by the Queensland government. Some elaboration and interpretations of native title case law at that time were also offered as additional thematic foci in the research task. These included now familiar elements: detailing principles of group membership, genealogical information linking the claimant group to people who possessed the area before annexation, and with respect particularly to the criteria of rights and interests, descriptions of ‘coherent social structure’ and ‘cultural logic’ deriving from sources independent of relations with the colonial regime. There was an awareness that the CR could be called into evidence were this or other related claims to be contested in court at a future time.

In many respects, evidence in support of the native title claim appeared relatively straightforward. Identifiable Warraber ancestors were present on the island at annexation in 1872; land ownership is vested in Warraberan families and individuals who together formed the claimant group and who regularly engaged in local negotiations over the use of their own and others’ land. Many of the documented social and cultural practices in which their ancestors were engaged (e.g. gathering marine resources, performing certain rites) remained in evidence in the contemporary period.

But a fundamental problem emerged concerning residents’ orientation to group identification and ancestry as expressed through the Gau Clan. As discussed, the apical ancestor of the Gau Clan—Bubarei—was not a Torres Strait Islander. And while his children were gifted land according to local custom, Bubarei was not. He remained an outsider; in local terms, he is not considered to have been ‘made a brother’ by local people (i.e. incorporated by island custom). Indeed, he was reputedly not welcome at Warraber Island, and never resided there.

The Gau Clan, as a collectivity that exists essentially in reference to Bubarei, potentially infringe core requirements for native title, at least as it has come to be defined through the CR process, in turn drawing on a priori conceptualisations of indigeneity. As both a non-Islander and a non-Warraberan, Bubarei did not provide a suitable foundation for ‘identification of a [relevant, indigenous] claimant group’ (Department of Premier and Cabinet 1999). As someone who was never provided with land on the island, and did not reside there, Bubarei possessed no ‘rights and interests in the territory claimed, which must derive from traditional law and custom’ nor could he represent a source of ‘continuous connection, that is, between claimant group and claimed area from a time before annexation’ (Department of Premier and Cabinet 1999). Bubarei’s Warraber-based children were certainly able to be regarded as indigenous to the Torres Strait under the terms of the NTA (as they were under TSILA) on the basis of their mother’s status, that is of Bubarei’s Torres Strait Islander spouse Wawa. However, native title required that Warraber claimants demonstrated descent from land-holding pre-colonial ancestors, that is, from neitiv figures, not from an outsider like Bubarei, a fact that rendered the Gau Clan irrelevant under the NTA.