THE CONNECTION OF THE SOUTHERN KAANTJU NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM
27 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 yesterday and today. 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.
28 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.
29 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.
30 Dr Kwok describes Southern Kaantju country as in the central ranges region of Cape York, south from the Archer River to approximately around Coen (Kwok 2017 report at [596]):
Southern Kaanju territory extends approximately from Coen in the south to the boundary of the Archer River in the north. Its eastern boundary is in the coastal uplands of the Macrossan, McIlwaith, Tozer and Janet Ranges, and it extends westward to the western margins of the hill country, to the west of the development road between Coen and the Archer.
31 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.
32 The evidence supporting the Southern Kaantju group description, and the identification of apical ancestors, is found throughout the reports prepared by Dr Kwok and Ms Waters. 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.
33 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 Southern Kaantju 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].
34 Allan Creek identifies as a Southern Kaantju man, through his father and his paternal grandfather. In his affidavit filed in support of the consent determination, he recounts at [80] how his father and grandfather were instrumental in the development of his knowledge about country: "We had old people like Dad who knew the boundaries. I know the country because I have been born and raised on our Kaanju area. I rode and walked it with my father and grandfather, all of it."
35 At [53], Mr Creek explains how he understands how one establishes a connection to country:
We are connected to the land and the landscape through our ancestors, our totems and knowledge. We are taught about country. If you are not connected to the land then you can't make decisions about the land. My connection with country, knowing my country, that means a lot to me because I am in charge. It is my country. We have been put in charge of our country and I am in charge of our areas now. Even though there are people outside who say that they want to do this or that, it doesn't matter, because I am in charge of my country. We are in charge of our country.
36 Mr Creek elaborates on this at [107], in relation to the concept of bloodlines:
I have bloodline so I'm a traditional owner. I also grew up on country and know country; I know all about it. If other people have bloodline, but they didn't grow up here, they can't tell me what to do. They don't have the authority. So other people with bloodline can't tell me about this country if they didn't grow up on country. People who have the bloodline can always come back to country. We can't say "you can't come back", because they have bloodline. But we have the authority to say "you come back and listen and learn" because they grew up away from our country. Children have to listen and learn too.
37 At [114]-[115], Mr Creek explains the significance of connection to country for rights of access to country:
Under our law, in order to have a right to access country, you need to get permission, unless you have bloodline to that place. When you know the land, you know and understand the value of our sacred places. I know the country well and I feel the connection, deeply.
I was taught by my parents and grandparents that we have to be careful going onto someone else's country without their permission or without telling them. It's a matter of respect. It's the same if people want to come onto our country. We might not want someone going on to our country for a number of reasons, so we can say 'no', if someone asks. We might want to muster cattle or it might not be safe- or it could be a sacred place that shouldn't be disturbed. We also close areas for sorry business.
38 Amos Hobson also identifies as Southern Kaantju. He is a nephew of Mr Creek, and his evidence is that he was raised by Mr Creek's father (Mr Hobson's maternal grandfather). He also identifies as Umpila, through his father. In his witness statement, Mr Hobson recounts how his maternal grandfather handed down Kaanju cultural knowledge, and how Mr Hobson tries to pass that knowledge on today (at [33]):
I worked with my grandfather, Thomas Creek, for a while. Old Thomas taught me how to break in a wild horse and he taught me to ride horses. He taught me many cultural things as well, like how to find sugarbag or bush honey, how to hunt and make spears. We spent a lot of time together. It was good being out on my Kaanju country with my grandfather Creek, working and staying fit. I try and encourage young fellas to do that these days; to go out on country and work, away from alcohol.
39 He makes a similar statement at [158]:
My grandfathers, uncles and elders, like Thomas Creek, mooka Allan Creek, James Creek, Benny Giblet, Abraham Omeenyo, Frank Hobson, Sammy Short, James Clarmont, Peter Ropeyarn and Joseph Hobson have taught me about my Kaanju and Umpila country. They have taught me to respect country and respect elders. They have shown and taught me other things, like how to hunt and make spears, sacred place and the need to put a smell on strangers or visitors when they visit country. I have told my son these stories and told him about country and important places.