THE CONNECTION OF THE ATAMBAYA NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM
39 In his 2017 report, and supplementary 2018 report, Dr Redmond presents native title connection material in relation to areas that cover the Redmond Part A area. That material is informed by the historical, anthropological and archival record, a range of environmental and linguistic data, and on-site field research and interviews with people who claimed a traditional connection to the relevant areas.
40 Dr Redmond describes how the ancestors of the native title group members used, occupied and enjoyed what Dr Redmond describes as a "lawful jurisdiction" over the determination area prior to effective sovereignty. His report describes their continuous use and occupation of the determination areas across succeeding generations to the present day, under a body of shared traditional laws and customs. The 2017 Redmond report makes clear the significant post-colonial pressures imposed on the ancestors of the Atambaya People, and the severe impacts of European colonisation.
41 Despite these impacts, the native title groups were able to "maintain knowledge of traditional places of significance, to regulate access to the Report Area to some degree and to observe and adapt many of the laws and customs which govern and reproduce their society". Dr Redmond describes the nature of these laws and customs, and the way in which these have been passed down generation to generation. Dr Redmond describes these as including stories, traditional knowledge and a set of practices acknowledging spiritual presences in the landscape.
42 The applicant submits that the connection material, including Dr Redmond's reports, establishes a credible basis for the proposition that the Atambaya and Gudang Yadhaykenu native title groups have maintained their connection to their respective determination areas, under their respective traditional laws and customs, since prior to sovereignty. The State supports that submission, and I accept it.
43 The 2017 Redmond report describes the Atambaya People's traditional country as including the upland regions of Cape York in the forested highlands of the Great Dividing Range, between approximately the headwaters of the Jardine River in the north and running south to Schramm and Nimrod Creeks, east to Catfish Creek and west to the Richardson Range. Dr Redmond traces in detail anthropological records and research from the 1800s to more recent times, drawing conclusions as to the extent of Atambaya country. The report describes the Atambaya name as deriving from "a place named Atampaya, near the long-abandoned McDonnell Telegraph Station".
44 The material supporting the Redmond Part A group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Dr Redmond and Ms Waters. Ms Waters' work concentrates on the correct identification of apical ancestors, and is meticulous.
45 I accept these matters were the subject of thorough research, and were carefully presented to group members at a series of meetings described by Ms Malyon in the 2022 Malyon affidavit.
46 Finally, it is appropriate to set out here some of the accounts given by Atambaya group members, whose lived experiences and connections to culture and country provide the foundation for this determination. This testimony is central to establishing a credible basis for the recognition of native title. As I noted in the 2021 determinations, it is the group members who "live and understand their law and custom, and how it connects them to their country": Kuuku Ya'u determination at [68]; Uutaalnganu determination at [59].
47 Mr Moses is a member of the Atambaya people through his mother Miriam Crow and her mother Bella, whose father was Peter McDonnell. He explains that he is also Atambaya through his mother's father Moses, who was Bella's husband, and who was the son of Willy McDonnell. He describes also having connections to Batavia, Northern Kaanju, and Taepadhighi country, and to Badu Island and Murray Island in the Torres Strait.
48 Mr Moses describes in detail his family, and his life growing up on Atambaya country. His narrative focuses on the stories of those who came before him, and the stories he had been told. He describes more recently his involvement in protecting Atambaya country, and that "[u]nder our culture, I must protect sites and places on Atampaya country". Key figures in Mr Moses' story are Uncle Goody and Uncle Joseph, both of whom he describes as having raised him:
Uncle Goody was a song and dance man. When I was a little boy I used to dance with him together at Injinoo. We would come together and some of the older people would make songs with their voices and use clap sticks.
…
Growing up, I was really close to Uncle Goody. My Uncle Goody taught me about Atampaya country. He would take me out with him down to Cockatoo Creek and Heathland reserve area. Uncle Goody taught me many things when I was growing up, like how to find tucker and make spears. He would teach me songs and dances for corroborree.
When I went out with Goody, he took me out to get to know Atampaya country, to identify it. I remember once that Goody's cousin, Angus Pascoe, came along with us. Old Angus and Goody, they grew up in the bush. They told me where Atampaya country is. We went out to Cockatoo Creek and camped for a week.
My uncle Goody took me as far as the Dulhunty River, when he took me out to show me our country. The Dude River is my grandfather Moses' country and the Dulhunty River was my grandmother Bella's country. When they were in courtship, my grandfather Moses would swim across the Dulhunty River to see my grandmother Bella and be with her. That's how I know that my grandfather is a Dude man and my grandmother is a Dulhunty woman. That is a croc infested river that one but the old people would put a substance on their bodies to protect them from the crocs. Uncle Goody told me this story.
There were some other old Atampaya people who were important teachers for me. Joseph McDonald was a stockman in lnjinoo and he taught me how to ride horses. He was Atampaya. He's passed away now. Uncle Joseph helped raise me as well. I called him mum! He was like my mum, he taught me everything. He taught me how to ride a horse, go hunting, how to catch turtle and dugong when I was a little boy. He was up at injlnoo. I think he was around the same age as my mum. He taught me how to box as well.
49 Mr Moses describes passing his knowledge about country on to younger members of his family, and to younger people from different clans, including those who have Atambaya blood ties. He says:
I take younger members of my family out to Atampaya country and explain things to them …
I take these young boys and teach them about our country. I tell them stories.
50 He also describes teaching the younger generation how to make spears the traditional way, and how to fish. He describes how Uncle Goody told him that Atambaya country is their country because their ancestors were Atambaya people. He says "I can speak for all of Atampaya country". Later in the statement, he says:
Atampaya country is my land. Under my law, it's my country. In Atampaya country, Atampaya people are the boss. We can give permission or we can say no if people want to come onto our country.
51 Mr Moses describes Atambaya country this way:
Atampaya is inland country, we are an inland tribe. We don't have salt water in our country. We are freshwater people. We eat catfish and barramundi. I remember when I was little, we would catch little goanna.
…
There are scar trees in Heathland. Many scar trees up around the airport at Cockatoo Creek. The scar trees are left from where the old people took bark for tools or to carry things with. As an inland tribe, Atampaya people don't need to make canoes; the creeks are shallower, or you can spear fish from the banks. I know this because I have done it, the last time being about 5 years ago.
52 Mr Moses describes how rights to use country are exercised. He says:
Under our cultural way, when someone passes away their spirit goes back to country. The spirits are ancestors that stay in the country. They punish you if you do the wrong thing, like take something that doesn't belong to you. They can make you sick.
There are good spirits and bad spirits. Some spirits make you sick or can play tricks. That's why we use the underarm sweat, to help protect ourselves and others from spirits. Some elders put water on someone's head, to protect visitors. When you go into country, or if you are going to camp on country, the person put their smell on them (usually from under their armpits). If they are someone who has not been there before or someone who is not from there, like a friend who is visiting, you put the smell on them so that the spirits recognise them.
Some people use sweat or smoke or water, but mostly it is talking to the ancestor. We ask the ancestor to protect the person because she's new or she's from other country and it is her first time here. Sometimes the only way to protect people is to talk to the ancestors.
Sometimes the spirits come in animals. They can come in your totem. My totem is a dingo, Utaga. I got my totem from my mother, it is our clan totem. Each of the four clans up here on the peninsula has a totem. The Angkamuthi have freshwater turtle, even though they live on the coastline, but they have freshwater further up the river. The Gudang have sand goanna and the Yadhaigana have crocodile.
It is bad if someone kills a dingo. I accidently bumped one when I was driving to Cairns. I jumped out of my car and I dragged him off the road. I talked to it. I said I was sorry, that it was my bad. The dingo comes around here, in lnjinoo as well. Sometimes when I see dingo when I'm out working I think that my ancestors are looking after me. It's a good feeling.
When we go up to Fruit Bat and Elliot Falls to go swimming I talk to my ancestors there. I talk to my family, it is important to tell them when you are in an area. I have introduced my kids to their country. I did this by putting water on their head and talking to our ancestors when I took my kids to the falls. The last time was about two years ago.
When we did the optic cable with the Telstra man at Heathlands, we were camping and one night we were telling a story about bad spirits, the devil, and then we saw a spirit, from the veranda. We were scared so we turned off all the lights and watched it. Luckily we were sleeping two guys to a room. The next morning, we told the two men we were working with and they didn't believe us. The next night, the white man saw it and he was scared. I think that people can learn if you take them out to the bush.
That's why it's important when you go onto country to wet your head or put sweat on you or chuck talk, which means to say something to the ancestor of that country not to disturb you. For people who are new and have a different presence, a different smell, or if it's a white person or someone from another clan group, it is important to do this.
Chuck talking means to talk to the ancestors from the area, so you won't get lost or sick. Other people's country, they might do smoke, or something like that. We chuck talk for country. We do it so that the country knows we are a traditional owners. Strangers have gotta do it so that ancestors know and don't follow you all the way home.
53 Mr Moses describes a terrible massacre perpetrated at Bertiehaugh and attributed to Frank Jardine. He describes how this account was "passed down from generation to generation".
54 Mr Brisbane is also a member of the Atambaya People, through his father Captain Brisbane, whose father was Jimmy Brisbane. He states that he also has connections to Kaanju country through his mother and grandmother on his mother's side, Clara McDonald, who was Clara Pascoe before she married. Mr Brisbane describes how:
The older people give you a language name. My grandfather Jimmy McDonnell gave me my name.
My language name is Arrenja. Arrenja means warrior of the rainforest. My Grandfather also had this name, Arrenja. My language name was given to me by my grandfather. Old lady Nagi always called me Arrenja. She called my wife Wieya, after the black cockatoo, her totem.
(Original emphasis.)
55 Mr Brisbane describes his family, life, and connection to country. He describes the role that stories about country have played for him, and the importance of passing on stories to future generations. He says:
I have told my children about the story places and sites on my country. I have taken them there and introduced them to country.
…
I take [my daughter] Macy out to Atampaya country, I put water on her head, and put my underarm sweat on her, to let the spirits of our Atampaya old people smell her, and welcome her to country. I will teach her all about our Atampaya country. I know how to do this, because my uncle Goody did the same for me. The first time we went to Cockatoo on Atampaya country it was all scrub. Uncle Goody put sweat and wet my head. Then we could start working to clean the country to build the station up.
56 Mr Brisbane describes how his grandfather Larry, and Uncle Goody, taught him skills and passed on knowledge about Atambaya country:
They took me hunting on horseback, they taught me how to make a spear, how to use a spear and woomera. They taught me about Atampaya country right through.
…
Every day in the home, Grandfather Larry and Uncle Goody would sit around and talk. They would sit under the mango tree and tell stories about country and their home.
57 Mr Brisbane's evidence makes clear the importance of respecting and protecting country, and of having native title recognised:
The country is ours; it's important to get the land back so we can go out and live on country.
…
My old people taught me that it is important not to take more fish or food than you will eat, otherwise the ancestors won't let you have any next time. If someone gets too greedy they won't be able to get any more. The old people will take the fish or animals away.
…
It is important to protect sacred sites and places because if we don't we can get sick, or our families can get sick.
58 Ms Nona is an Atambaya woman through her mother Cecilia, and her mother Elsie Brisbane, who was also known as Elsie McDonnell. She has connections to Angkamuthi and Yadhaigana through her father Daniel Ropeyarn, and Gudang Yadhaykenu through her mother's father Nicholas Wymara, who was a Gudang man. She has family connections to Moa Island and Murray Island in the Torres Strait, through her grandmother and grandfather.
59 Ms Nona describes her family and her life story. She describes learning from her mother and from Walter Moses' mother Nagi, whose brother she knew as Granddad Goody:
My mum taught me about Atampaya country and culture, and Nagi taught her about Atampaya country because mum was only 5yrs old when her mum, Elsie died. Mum still teaches me things every now and then. She is my elder.
…
Nagi and her brother Goody told me about Atampaya country as well. They told me about story places, for example the serpent story. It is more appropriate that my mum speaks about this story.
60 In explaining the importance of being able to access and use country, Ms Nona says:
When we go out to anywhere on my country we always say to the spirits that we are here to visit and that we are related, that they are our ancestors and then nothing bad happens. If you go on country, you will sense there is someone around there. When my husband goes hunting, even with his Maori friend, they talk to the spirits where they go. When I go to Cockatoo Creek I speak to the ancestors. I let them know I am there and that I am looking for food. I tell them that I am family.
…
When people want to go camping on country, I tell people the right way to behave on country, to respect our land. If we find out that someone did not behave, we find them and tell them off.
61 She explains the need to protect special and sacred places of traditional significance:
Culturally, we have to look after the country, especially sacred places. It is not a choice. This is something our elders taught us we have to do.
62 These extracts are but a sample of the material before the Court. I am satisfied there is ample, persuasive and compelling connection material before the Court.