THE CONNECTION OF THE AYAPATHU NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM
26 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.
27 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.
28 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.
29 In relation to the Ayapathu People, Dr Kwok states (at [711] of her 2017 report):
The Ayapathu name is a language-based reference, particularly constructed in contrast with the closely related Ayapakan language and people. The area with which the Ayapathu name is associated in the literature - as today - revolves around Ebagoola from south of Coen through the headwaters of the Coleman, Lukin and Holroyd Rivers. The name also occurs from early records in connection with the coastal strip about Port Stewart, tallying with Rigsby's findings that there was a dialect of Ayapathu spoken there.
30 The evidence supporting the Ayapathu group descriptions, 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.
31 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 Ayapathu 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].
32 Douglas Roy Ahlers identifies as Wik Mungkan, through his maternal grandfather, and Ayapathu, through his father and maternal grandmother.
33 Mr Ahlers recounts how his father introduced him to parts of Ayapathu country, explaining how protocols for visiting different sites were passed down to him (at [68]-[72]):
I worked all through my father's country around Coen. When I was about 8 or 9 years old, my dad took me on a horse ride and said 'boy, I have to show you where these sacred sites and story places are'.
The first place my father took me to was at Thornbury, which is the site of the Moon Story. I do not want to record the location of that Story Place in this statement, but I know where it is. Dad warned me not to break anything such as ants' nests, twigs, or leaves. If I disobeyed him, my hands and legs would become cripple and I would die. My dad told me that this place was me and my sister's country. When we left that Story site, we had to do so very slowly to avoid breaking anything. While there, we looked through the scrub and saw a sandy patch which was very clean. I asked whether it stayed clean all year round and Dad said 'yes', because there were spirits keeping it clean.
Dad then took me to another place, to a hill. From the hill's western slope, he showed me the Green Frog Story Place [N7-N8] [these were references to a map annexed to Mr Ahlers' witness statement], but we didn't go near it. That Story is sacred and I keep it to myself, in case people are tempted to visit that Story Place.
We kept travelling. He then took me to a Spring Water Place [N8], and I looked down inside of it and it was filled with little black jewfish. I asked him whether it was okay to touch them or eat them, and he said 'no, they are part of the totem' and then Dad started talking language.
Before he took me into those Story Places, my father put his underarm smell onto me so that I wouldn't get sick, even though we were the traditional owners for those places. As he did that, he talked quietly to the old people saying "this is my boy and we are only here to visit you, and we don't want you to harm us". That afternoon, as we were riding home to town I felt really good, and Dad looked at me and asked 'what are you thinking boy?' and I said 'thank you Dad; I probably saw something nobody, else has seen'.
34 At [74], Mr Ahlers states that he tells these stories to his children and his grandchildren, and that he will one day take his grandchildren to visit the Black Jewfish Story Place and the Green Frog Story Place.
35 Mr Ahlers also describes in detail some of the rules regarding permission to enter, use and speak for country in Ayapathu culture (at [46]-[52]):
Right to speak for, make decisions about, and control access to, and use of, country
Under the law, if you are an Ayapathu man you speak for Ayapathu country. As an Ayapathu person you can come through both your mother and father's side. Ayapathu people will speak for their respective family areas. For example, Old Phillip Port can speak for the Ayapathu area around Strathburn going towards Coen on the north side of the Lukin River [P7, P8 & O8]). I speak for my Ayapathu country, around the Coen area.
If they were to build a highway through my Wik Mungan country, I would sit together with the Kepples such as Old Man Morris Kepple, Rachel Kepple and Joylene Kepple, and the Wankulas such as Smithy Wankula Kepple, Leslie Kepple, Cedric Kepple, Katie Kepple, May Kepple, Lorraine Kepple and Marilyn Kepple. We would talk and decide what would need to be done.
Right to access and use country
In the past when I have ridden around somebody else's country I would be alert all the time and try not to upset people. It is different on my own country, as I know who to speak to for permission and I can call out to the spirits. But even in my own country, I still need to be careful to avoid the poison places. There are a lot of dangerous places on Ayapathu country.
When it comes to using and taking things from the land, you need to first go to your elders to ask permission. After that, you would need to ask the old people, meaning those Dreamtime ancestors who look after the country. I would do that by singing out to the old people in language and tell them that it's me and ask for their protection. For those who are not from that country, I would need to put an underarm smell on them.
Those rules were taught to me over the years by Mum, Dad, my grandmother and my uncle Wumpy, as we camped all over the Coen area and Merepah station [M5]. I have taught those rules to my children when I speak to them about the old days, and I tell them stories. I taught them about some of the rules about using country and accessing it. In those areas that are really sensitive, like the Moon Story Place, I would still prefer to have an elderly person alongside of me, but there are now none of that elderly generation left alive. Nowadays, I avoid a lot of poison places because the proper elderly people have all gone. I'm an elder now.