THE CONNECTION OF THE NORTHERN KAANJU NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM
30 In her 2017 report, Dr Natalie Kwok presents native title connection evidence in relation to the North Central Cape York and south-eastern Princess Charlotte Bay areas. This report covers all four determination areas for today and tomorrow. This evidence is informed by the historical, anthropological and archival record, as well as on-site field research and interviews with people who were believed to have a traditional connection to those areas, and a range of environmental and linguistic data set out in the report.
31 Dr Kwok describes how Aboriginal people were in occupation of the determination areas at the time of the British assertion of sovereignty, and that laws and customs observed at that time recognised rights and interests in relation to lands and waters. While she acknowledges that the local peoples were placed under significant pressure from pastoralists and government authorities to leave their homelands, Dr Kwok describes and explains the strong efforts to resist this pressure, and how many people remained on country or connected to country, including by accepting exploitative work in order to remain in the area. Dr Kwok reviews and summarises the contemporary laws and customs in relation to land tenure in the North Central Cape York and south-eastern Princess Charlotte Bay areas, and concludes that these rights and interests originate in the pre-sovereignty contemporary laws and customs, having been passed down primarily patrilineally and shared by elders in didactic stories.
32 The applicant relies on this evidence as establishing a credible basis for the proposition that each of the Northern Kaanju, Southern Kaantju, Lama Lama and Ayapathu native title claim groups have maintained their connection to their respective determination area, under their respective traditional laws and customs, since prior to the British assertion of sovereignty. The State accepts such a credible basis exists. I accept the parties' submissions.
33 In relation to the Northern Kaanju People, Dr Kwok's report states their country is generally recognised as lying north of the Archer River and Sefton Creek. At [710], Dr Kwok states:
The Kaanju people have been repeatedly recorded as occupying a central position in the range country of Cape York Peninsula, with interests extending from the headwaters of the Pascoe in the north to the upper reaches of the Archer River system in the vicinity of Coen. The Northern Kaanju [Koko I'o] and Southern Kaanju divide, reflecting differences in perspective on the part of their neighbours and minor dialectal distinctions, have been flagged since at least the late 1920s. The broad extent with which the name is associated and the fact that Thomson recorded the name's meaning as spear thrower handle, leads me to suspect that the name Kaanju may have had a relatively general application to upland peoples in the region, although it also functions as a language name.
34 Dr Kwok's evidence explains the distinction between the Northern Kaanju People and the Southern Kaantju People by reference to the early research of Dr Donald Thomson (in 1933), and evidence given by senior Kaanju men in the course of early claims made under the Aboriginal Lands Act 1991 (Qld). As Dr Kwok notes, distinctions between the two groups are found in the names traditionally given to them (Thomson had observed that the Northern Kaanju were more usually referred to as 'Koko I'o' (or 'Kuuku I'yo'), whereas the Southern Kaantju were more often called 'Kaanju'), linguistic differences between the two groups (Northern Kaanju dialects are spoken more slowly and less abbreviated than Southern Kaantju dialects) and various cultural, social and historical differences, as noted in the research of Prof Chase (Kwok 2017 report at [583]-[586]). Dr Kwok notes that there is some "local resistance" to a distinction between Northern Kaanju and Southern Kaantju. The witness statement of Rodney Accoom at [36] refers to this matter. Dr Kwok concludes in her report that the division "marked off allied families" and was "commensurate with the complexities of classical group formation and naming traditions previously canvassed" (Kwok 2017 report at [588]). The parties have accepted this opinion and this reflects a key aspect of the s 87A agreements, which the Court accepts.
35 The evidence supporting the Northern Kaanju group description, and the identification of apical ancestors, is found throughout the reports prepared by Dr Kwok and Ms Waters. It is this material which has underpinned the differences between the present claim group description and that provided in the 2015 Northern Kaanju Determination. Of particular note in this regard is the careful and thorough research regarding Billy Chungo, Billy Wenlock (Ukunchal), John A-chicin-ga, Peter Boyd and Polly Kepple, referred to at [10] above. I accept these matters were explored and presented to group members at a series of meetings described by Ms Malyon in the Malyon 2022 affidavit. They formed part of the s 87A authorisation process.
36 Finally, as had been done in the Kuuku Ya'u and Uutaalnganu determinations, it is appropriate to set out here some of the evidence of the Northern Kaanju group members, whose lived experiences and connections to culture and country provide the foundation for this determination. 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].
37 Rodney Daniel Accoom has connections to Kanthanampu, Kaanju, Uutaalnganu (Night Island) and Kuuku Ya'u country, and can speak for an area of Kaanju country from Brown Creek to the north side of the Archer River, from Geikie Creek to the western side of the Tozer Range, and along the Wenlock River to the proximity of the Peninsula Developmental Road. Mr Accoom is connected to this country through his mother, who in turn is connected to the country through her mother.
38 Mr Accoom describes the trips he takes with his children onto Kaanju country, during which he explains the rules about the land and its use (at [59]-[60]):
Each year, when the roads are cleared and it's the dry season, I go out to many parts of my Kaanju country, such as Wenlock River, Orchid Creek and Archer River to camp and fish. I take my youngest kids with me whenever I go out there. I teach them about the country and what you can and can't do, just like I was taught by my parents and grandparents.
It's important that the younger generation learn what I know so that they can pass it on to their kids and grandkids. That's how's it's happened for thousands of years and is what is expected of us.
39 As Mr Accoom recounts, these rules were passed down to him through stories told by his elders (at [81]-[82]):
My elders, grandmother and grandfather taught me what we could and couldn't do on country. I was lucky, I spent a lot of time sitting with my elders around campfires and learnt a lot from them. I used to sit and listen to the stories that my mother and father and some of the other old people, like Maudie Sandy (my grandmother on mother's side) and Hanna Pascoe (previously Accoom, my grandmother on my father's side) would tell about living at the Old Mission and about our country. I feel privileged to have had that opportunity to spend so much time with the old people.
I teach my own kids and grandkids what I've learnt. We pass on our laws and customs by talking to our kids and grandkids. We show them how we do things when we go out on country. Much is learned sitting around a campfire and yarning. This is where the old people tell their stories. Much of the learning happens when we go out places; I tell them about the stories associated with the places we are visiting. It's important that we teach the young ones because they are who will carry on our traditions.
40 Mr Accoom's account of the rules regarding permission to enter, use and speak for country is made in the following terms (at [46]-[55]):
I am a Kaanju man but I focus on my area around Wenlock River and Orchid Creek, K8 on the Map [annexed to Mr Accoom's witness statement as filed]. I would never speak for someone else's country and they shouldn't speak for mine. That is what we were taught by my parents and grandparents.
If I see bad things happening on other people's country, then I don't step in to say to those people doing the bad things that they should stop, because that isn't my right. But I would mention it to the people whose country it is, so they can decide what they want to do about it. For instance, I know that some Aboriginal people from Weipa had visited Wenlock Falls, which is the Malandussi / Praying Mantis Story, in the southern part of northern Kaanju country. They went there to fish, and had left all the carcasses of the fish they had caught, just laying around. I didn't say anything to those people from Weipa, but I did mention it to Robert Nelson whose country it is.
Who has rights and who can speak depends on many things, including who else is attending meetings. For example, I won't speak up if there is a more senior person with knowledge talking about country, but I will if they have given me permission or asked me to attend a meeting because I can speak up. Things can change over time, just like I used to speak for Kanthanampu but now I speak for Kaanju. It can depend on the issue and who else is going to meetings, and if I have been asked to come to a meeting by the traditional owners of that country.
If someone wants to come to my country, for example, to go hunting or fishing, they must ask permission, and they do.
Whenever I go on to someone else's country, like the Kuuku Ya'u, I ask permission.
My wife's mum is Kuuku Ya'u, so whenever we go to her country at Chilli Beach we let her know out of respect. She has given us permission to go there anytime, but I still let her know, because that is the right thing to do in our law and custom. My parents and grandparents always said that it was important to abide by the law and show respect, otherwise you might get sick. It also stops there being trouble between the different groups.
The same applies to when people come on to my country, people ask me if it's okay to go to the Old Mission because I have rights in that area. It is Uutaalnganu or Night Island Area and I have rights there. Most people have been given permission to go there whenever they want, but people still mention that they are going to go, just in case they shouldn't for some reason.
You must ask permission to go into a place and the old people will wipe underarm sweat to welcome you. You do this when you bring someone on to country for the first time too.
If I take someone to a spirit place then I have to rub my underarm sweat on to the person so that the spirits will recognise them as being with me. When I went with old Toby to Chuulungun, K8 on the Map, where David Claudie is, for the first time he did this to me. That way the spirits will protect us and not make us sick.
This is the same with the Kuuku Ya'u, they follow this rule, as do all the mobs around here. I know this because I travel and speak to people around the Cape.
It is also against the Rainbow Serpent. The Rainbow Serpent Story is not my story to tell but it covers my country.
41 Robert Nelson traces his connection to Northern Kaanju country primarily through his father, whose country is said to stretch from Spear Creek, north of Schramm Creek, southwards down to the Archer River. He also explains that his mother's country starts from Love River - at the Aurukun side - and finishes at a place called Red Bank at Box Creek Junction, on the Archer River.
42 At [19] and [21]-[22], Mr Nelson describes how he learned about his country over the course of his youth:
I learned about the country from my Dad, my grandfather Jimmy Lawrence and my Uncle Victor. I learned how to burn the grass, work the cattle, how to track and not get lost. My Dad taught me how to put the fire break in from Coen to Archer River. Ever since we were small, he would tell me and my sister about the Moreton area. Every night he talked to us. He said that your home is at Moreton, Batavia and MalanDadji, on the Rocky Creek Junction [J8] [a reference to a map provided in Mr Nelson's statement] where Rocky Creek flows into the Wenlock River. MalanDadji is the Lightning and Thunder Story. I can't talk about that Story. There are 4 Story Places in Dad's country that are very sacred which we can't talk about.
…
When I was 19 years old, I left Coen and went to Chillagoe to work, but I came back to my country in about 1973. I worked from my 20s with my Dad and Uncle Ted Lawrence, one of my mum's brothers. They took me out on country, and told me about my country while we were mustering.
In my 30s, I was up and down my father's country, from the top to the bottom. I went out there with Toby Horseboy, Tommy Silver and George Wilson. They taught me about my country - they said what not to touch, what not to break. They took me hunting and fishing too. We camped out at Rocky Crossing and down the bottom of Moreton Station, where the bend in the Wenlock River is. They told me about country but they were strict; they only told me once. If I wasn't listening, they wouldn't tell me again. They told me about sites and places; where you can't go and how the Stories came up in the country.
43 Mr Nelson explains the rules governing passing on rights to country at [23]-[27]:
My grandfather George Moreton Senior had Tommy Nelson, and then Tommy Nelson had me - that is how you get your rightful country. You have to talk to your grandparents, or go back to your aunty or Uncle, and ask them which way you should go. Back in the old days, you had to stay one side. You couldn't jump up and then later cross the line and talk for the other side.
I could go back to Oyola Thumotang, where I was born, but when I go back there I don't tell the traditional owners of that place what to do - they tell me what to do. 'Oyola' means 'sing', 'tuma' means 'fire' or 'light', and 'tang' means 'land'.
You can get some rights if you are married - proper cultural marriage. The woman can be taken onto her husband's country.
You can also get rights if you are adopted in culture. My Uncle Banjo Rokeby was from York Downs, but he was grown up by my grandfather Jimmy Lawrence and stayed at Oyola Thumotang. He got full rights in that country from Jimmy Lawrence.
People say they have rights at Moreton Station [H6] because their old people used to go there but it was a telegraph station. People used to come there to get rations and tobacco. They don't have any rights there - they were just passing through. That is my Dad's country from his grandfather.
44 Mr Nelson emphasises the importance of cultural protocols about access to and protection of land, in both past and contemporary practices (at [39]-[40], [43]-[44], [48] and [71]):
In the old days, when you went to someone else's country, we had to take something over there to the next tribe; we had to take a 'mark stick'. If you went without it, you would be speared on the spot. We would take a spear, woomera, some other things or a mark stick to the next tribe. The mark stick was a little thing made of an ironwood tree or matchwood tree with marks on it. The marks on a mark stick are like the marks on the body which say what tribe you are, what rank you are, initiation. This is only for the men or really important women.
When you got to the boundary there would always be someone there; there were guards all around the boundary of country. They were older people from the tribe, and they would have some young ones there. They knew where the water was, and where the walking trail was, and they would block the boundary and you would not be able to go in there without the mark stick. If you had something like a mark stick, they would take you to the camp but then you had to follow them back to the boundary.
…
You can't go into another clan's country or you will get sick. Going to their country the wrong way shows disrespect. People from another clan or white people are supposed to get smell if they go on country. If they don't, they might get sick and they might not be able to walk.
If anyone wants to come on my country, they should speak to me first. If people are going to go on my country or take anything from my country they need to ask me. If they do the right thing, they can come again but if they make a mess they will not be able to come on again. I will tell one of our young ones to go with them. That person will have to stay with the young ones while they are on my country. This is the same if it is someone from another tribe - they can't come on to my country without asking me.
…
In my father's country, I can go anywhere. I go on country and I use bush medicine and I go hunting and fishing on my country and I can go on and do this without asking anybody. I check the country all the time when I am out there. At every turnoff, I check to see if there are tourists out there, and to see if anybody is doing the wrong thing or taking things from my country. That is what we are there for - to look after our country, not to just go there and stay.
…
We were taught by our old people that we needed to protect the land, to look after the land and not to go on other people's land. We know where other people's land is. If you talk about someone else's country or go on their country you would get punished. We were told this by our old people from when we were young children. You can't eat this and you can't eat that. My grandfather, my Dad's and my mum and Uncle taught me these things.