THE CONNECTION OF THE THAYPAN NATIVE TITLE GROUP TO THE DETERMINATION AREA
34 In his 2017 report and supplementary report, Mr Wood (and Dr Thompson, who prepared a chapter within Mr Wood's 2017 report) presents connection material in relation to the areas he was briefed to report on. In preparing the reports, Mr Wood states that he relies on existing anthropological and linguistic research as well as his own research, including extensive site-mapping by four-wheel drive, boat, and foot.
35 Mr Wood describes how the ancestors of the native title group members occupied the determination area prior to effective sovereignty. He describes at [84] of his 2017 report how "all clans and language divisions of the Report Area are interlocked by a common body of customary law and depend on that for a reasonably stable jural and social order". He also describes the importance of family connections and stories, and how:
The Stories, their sites, and the presence on an estate of its 'Old People' - the spirits of both its recent and ancestral dead - together comprise the repository of clan identity and owner status, and provide both with transcendent authority. That is, these things serve to elevate estate tenures above the merely human level, by embedding them in the origins of the cosmos and the spiritual power of myth and ancestors.
36 In his conclusions as to pre-sovereignty society and law and customs, Mr Wood describes connection in the following terms:
persons and landed groups are seen as related to their country in a way that is similar to the flesh and blood way they are related to kin. This is what connection to land in part means in Peninsula thought: a literal, organic connection, always implicating the notion of source, and of an order in which the boundaries are weak between the living person and their place, and between the country and its ancestral dead. A person and the places he or she was intimately associated with during their life become mutually identified, not just in the memory of the living, but in the sense of entering into each other's constitution. They cannot be separated in quite the way that is possible in western thought, with its fuller distinction between what westerners understand as animate subjects and inanimate objects. In Aboriginal thought the boundaries of the person are not co-terminus with their body, nor so clearly drawn off from their environment.
Given such a cosmology, a belief in direct, immediate communication between people and the country and its spirits is unsurprising, and all older and many younger people with whom I have spoken have personal experiences of this to relate. When in country that is not one's own, such communication is expected to be in the nature of hostility from the resident Old People and site beings toward oneself as a trespasser, and is associated with anxiety, sleeplessness, frightening apparitions of old men or women, difficulty in finding food and water, and often accident or illness. But in their own country a person is expected to feel at ease, and may receive intuitions and messages from the Old People, who will be pleased with (and revitalized by?) their presence in the country, by their smell, and by the smoke of their fires. They will "give them" (assist them to find) food and water from the country, and will appear to them in the guise of animals that approach the camp to peer at them, signal, or otherwise behave in unusual ways.
37 Mr Wood explains that this connection continues today, concluding that:
the character of Aboriginal society within and around the Report Area retains the same essential ordering by lateral kinship and vertical descent grouping, and the lives of the claimants are lived within a cultural and kinship world strongly diverging from that of their European neighbours.
(Emphasis omitted.)
38 He also concludes that the traditional owners of the area are actively involved with their traditional country, through their daily lives, employment projects in the region, and the customary activities of camping, swimming, fishing, hunting and gathering resources of the region for cultural purposes.
39 The applicant submits that the connection material establishes a credible basis for the proposition that the Kuku Warra, Thaypan, Possum and Wik and Wik Way 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.
40 The evidence supporting the Thaypan group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Mr Wood and Ms Waters. Ms Waters' work concentrates on the correct identification of apical ancestors, and is, like her work for other determinations in this proceeding, thorough and careful. The State accepts this material, and there is no objection from the other parties to the present determinations.
41 It is appropriate to refer also to Thaypan group member evidence, and their lived experience which provides a foundation for this determination. The Thaypan evidence is important. As I explained 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].
42 Bruce Clem Meldrum identifies mostly as Thaypan and Possum, although he states that he identifies with other groups as well. He describes his own knowledge of country, and the importance of passing that knowledge on to his children. He describes rules around using resources from the land. He says:
I have rights to take resources without permission in my traditional areas. Like fishing, and turtle, camping, cutting trees, take animals etc.
And people ask me permission for them to enter my country and take resources.
I can take things like wood for any purpose. The old people traded with neighbours.
There are strict rules that you don't take too much.
43 Dwayne Lewis Musgrave is a Thaypan man through his mother's father Dr George Musgrave and his brother Dr Tommy George. His grandad taught him about his land and language. He describes his country in detail, including sacred places on his country, and describes rules around what can and can't be taken from the land. He describes looking after the land, including through burning.
44 Mr Musgrave describes how Thaypan rules and laws are passed on from older people. He states:
Our rules and laws are passed down from our older people. My grandfathers, they taught me language and showed me country. They taught me about our sites and places and how to protect them and look after them. They taught me the importance of managing our resources and country, and making sure the next generations know how to do this too.
The main thing my grandfathers taught me was about law and custom and respecting the land and all the knowledge it holds. Always have that respect - no matter who. And hopefully future generations will keep this going. That is the main thing they wanted to see.
45 He also describes the importance of stories:
To me, knowledge of stories and story places is very important. These stories have been passed down to me from those two old fellows. We have to respect those stories and why those old fellows told them to us and we have pass them on down from generation to generation. Because I know about these stories from my old people, it gives me confidence about my country and I know where can and can't go on my country. I know I'm safe there.
46 He describes how he, in turn, teaches younger generations about country:
I have taken my older children out to Thaypan country. I've been taking them with me since they were babies. I tell them about their country and sites in the same way that we were told. I also teach them about their mother's Olkola country. It's important that they learn from a young age so that they know country and how to look after themselves, how to stay safe.
Teaching young ones where they can and can't walk is top of the list, to make sure they don't get sick. If they go to places they are not supposed to go, wrong places, they could get sick like a sore belly, or body pains or worse. I tell them where they need to be careful, for example some places where they can't go to the toilet or break a stick, where they can't disturb the land.
I teach my kids about how important it is to respect the old people, our ancestors, how to talk to them and sing out to them. We let the old people know when we go to country, I have shown my kids how to sing out and say hello to them, explain why we are there like if we are there to go fishing, hunting or camping. You have to let the old people know what you are there for. I always talk to my grandfather when I am on Thaypan country and let him know. I speak in Awu Alaya language to the old people.
I tell my kids how to get food, when it's good to hunt and where it's good to hunt. I've taught my boys, my nieces and my nephews about hunting on Thaypan country -from the west side of Mary Valley to the Hann River Crossing [Rll, Qll, R12, Q12], all the way down the Morehead River. We get wallaby, barramundi, freshwater fish and turtles and mussels. We also get bush foods like lady apples, white apples, bally yams that grow on a long stem, bush carrot and bush potato.
It's important they learn how to respect country and look after it. I teach them how to find food and water and how to look after food and water sources. I show them bush medicines as well, like Quinine for toothache. There's black and white current that you crush the root to put on scabs and sores. There's also a cherry bush that you make into a drink and when you drink it, it makes you feel good. You can find them in different places depending on the season. My old people taught me about this and now I'm passing it onto my kids and the next generation.
47 Overall, the connection material before the Court is ample and persuasive.