FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Northern Cape York #3 Native Title Claim Group v State of Queensland [2017] FCA 830

ORDERS

THE COURT NOTES THAT:

A.    The parties to the Application have reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area.

B.    On 20 June 2014 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 156/2011.

C.    On 30 October 2014 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 157/2011.

D.    On the date of the making of this determination, being a determination that native title exists made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 780/2016, two further determinations will be made, namely:

(a)    a determination that native title exists made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 392/2014; and

(b)    a determination that native title exists made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 6158/1998.

E.    This determination and the determinations identified in recitals B, C and D are related to the extent that they recognise native title held by persons either comprising, or belonging to, the Northern Cape York Peninsula Regional Society.

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),

BY CONSENT THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms set out below ("the determination").

2.    Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

3.    The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1.

4.    Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.

5.    The native title is held by the Northern Cape York #3 Native Title Claim Group described in Schedule 3 ("the native title holders").

6.    Subject to paragraphs 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:

(a)    other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b)    in relation to Water, the non-exclusive rights to:

(i)    hunt, fish and gather from the Water of the area;

(ii)    take and use the Natural Resources of the Water in the area; and

(iii)    take and use the Water of the area,

for cultural, personal, domestic and communal purposes.

7.    Subject to paragraphs 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    hunt and fish in or on, and gather from, the area;

(c)    take, use, share and exchange Natural Resources on the area;

(d)    take and use the Water from the area for cultural, personal, domestic and communal purposes;

(e)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(f)    conduct ceremonies on the area;

(g)    be buried and to bury native title holders within the area;

(h)    maintain places of importance and areas of significance to the native title holders under their traditional laws and customs on the area and to protect those places and areas from harm;

(i)    teach on the area the physical and spiritual attributes of the area;

(j)    hold meetings on the area;

(k)    light fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(l)    be accompanied on to the area by those persons who, though not native title holders, are:

(i)    spouses or partners of native title holders;

(ii)    people who are members of the immediate family of a spouse or partner of a native title holder; or

(iii)    people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.

8.    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the Laws of the State and the Commonwealth; and

(b)    the traditional laws acknowledged and traditional customs observed by the native title holders.

9.    The native title rights and interests referred to in paragraphs 6(b) and 7 of this determination do not confer possession, occupation, use or enjoyment to the exclusion of all others.

10.    There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

11.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.

12.    The relationship between the native title rights and interests described in paragraphs 6 and 7 and the other interests described in Schedule 4 (the “other interests”) is that:

(a)    the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)    to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and

(c)    the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

13.    For the avoidance of doubt, the relationship between the native title rights and interests described in paragraphs 6 and 7 and the other interests of RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited in paragraph 5 of Schedule 4 is that the other interests continue to have effect and the rights conferred by or held under those other interests (including new rights and interests conferred pursuant to those other interests after the date of this determination) may be exercised notwithstanding the existence of the native title rights and interests, and any activity that is required or permitted by or held under, and done in accordance with, the other interests (including new rights and interests conferred pursuant to the rights and interests after the date of this determination) or any activity that is associated with or incidental to, such an activity, prevails over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of s 24JA of the Native Title Act 1993 (Cth), does not extinguish them.

14.    For the avoidance of doubt, the relationship between the native title rights and interests described in paragraphs 6 and 7 and the other interests of Alcan South Pacific Pty Ltd in paragraph 6 of Schedule 4 is that the other interests continue to have effect and the rights conferred by or held under those other interests (including new rights and interests conferred pursuant to those other interests after the date of this determination) may be exercised notwithstanding the existence of the native title rights and interests, and any activity that is required or permitted by or held under, and done in accordance with, the other interests (including new rights and interests conferred pursuant to the rights and interests after the date of this determination) or any activity that is associated with or incidental to, such an activity, prevails over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of s 24JA of the Native Title Act 1993 (Cth), does not extinguish them.

DEFINITIONS AND INTERPRETATION

15.    In this determination, unless the contrary intention appears:

“Alcan Act” has the meaning given in paragraph 6 of Schedule 4;

“Alcan Agreement” has the meaning given in paragraph 6 of Schedule 4;

“Comalco Act” has the meaning given in paragraph 5 of Schedule 4;

“Comalco Agreement” has the meaning given in paragraph 5 of Schedule 4;

“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);

“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

“Local Government” has the meaning in the Local Government Act 2009 (Qld);

“Local Government Act” has the meaning in the Local Government Act 2009 (Qld);

“Local Government Areas” has the meaning in the Local Government Act 2009 (Qld);

“Natural Resources” means:

(a)    animals;

(b)    plants; and

(c)    charcoal, wax, resin, clay, soil, sand, shell, gravel, rock or other such material naturally occurring in the land and waters of the Determination Area,

but does not include:

(d)    animals that are the private personal property of another;

(e)    crops that are the private personal property of another; and

(f)    minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

THE COURT DETERMINES THAT:

16.    The native title is held in trust.

17.    The Ipima Ikaya Aboriginal Corporation RNTBC (ICN:  8114), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Schedule 1

DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, and depicted in the determination map, excluding the areas described in Schedule 2.

The Determination Area does not include any part of the land or waters which are subject to the agreement known as the Western Cape Communities Co-existence Agreement dated 14 March 2001 which was registered as the Comalco ILUA on the Register of Indigenous Land Use Agreements on 24 August 2001.

Part 1 - Exclusive Areas, depicted in dark blue on the determination map:

All of the land and waters described in column 1 of the following table and shown on the determination map described in column 2 of the following table:

Part 2 - Non-Exclusive Areas, depicted in light blue on the determination map:

All of the land and waters described in column 1 of the following table and shown on the determination plan described in column 2 of the following table:

B.    Map of Determination Area

Schedule 2

AREAS NOT FORMING PART OF THE DETERMINATION AREA

For the avoidance of doubt, the areas described below are excluded from the Determination Area as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth):

The land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or s 23B(7) of the Native Title Act 1993 (Cth) and s 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

Schedule 3

NATIVE TITLE HOLDERS

The native title holders are the Northern Cape York #3 Native Title Claim Group, being the persons descended by birth or adoption from the following apical ancestors:

(a)    Peter (Pahding) Pablo;

(b)    Wymarra (Wymara Outaiakindi);

(c)    Mathew (Charlie) Gelapa;

(d)    Annie Blanco;

(e)    Ela / Illa (father of Tommy Dodd, Polly and Tommy Somerset);

(f)    Woonduinagrun and Tariba (parents of Tom Redhead);

(g)    Charlotte Ware;

(h)    Queen Baki and Chief Tchiako/Tchiaku/Chiaku;

(i)    Jipsit and Dolly;

(j)    Mary McDonnell and Jack Snake;

(k)    Ourinda and Emara McDonnell Charcoal (grandparents of Willy and Louisa Charcoal);

(l)    Ralph Coconut;

(m)    Charlie Nataki;

(n)    William McDonnell;

(o)    Charlie Otomo McDonnell and his wife, Agemo (parents of Charlie Woolhead (Pascoe));

(p)    Wondorognu Alligator McDonnell and Mary Brown;

(q)    Wargo (father of Kitty McDonnell, Jacko, and Frank Doyle);

(r)    Clara and Jimmy McDonnell;

(s)    Epidin and Eteman (parents of Doris Harry);

(t)    Kaio;

(u)    Sambo Wooleye (father of Simon and Sarah Peter);

(v)    Woobumu and Inmare;

(w)    Bullock (father of Mamoose Pitt, husband of Rosie/Lena Braidley);

(x)    Charlie Mamoose (father of Silas, Larry, Johnny and Harry Mamoose);

(y)    Charlie Seven River;

(z)    Toby Seven River (father of Jack Toby);

(aa)    Asai Charlie;

(ab)    Sam and Nellie (parents of George Stephen);

(ac)    Mammus/Mamoos/Mark/Mamoose plus his siblings Peter and Elizabeth;

(ad)    Charlie Maganu (husband of Sarah McDonnell);

(ae)    Polly (wife of Wautaba Charlie Ropeyarn).

Schedule 4

OTHER INTERESTS IN THE DETERMINATION AREA

The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:

1.    The rights and interests of the grantee and beneficiaries of an estate in fee simple under Deed of Grant Title Reference 50914995.

2.    The rights and interests of the Torres Shire Council as the Local Government for the Determination Area within its Local Government Area, including:

(a)    its powers, functions, responsibilities and jurisdiction under a Local Government Act;

(b)    its rights and interests under any valid interest in land or waters within the Determination Area including under any lease, licence, access agreement, easement or Reserve in the Determination Area;

(c)    its rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owners and operators of valid infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area;

(d)    the rights under any valid agreements between the Local Government and third parties which relate to land or waters in the Determination Area; and

(e)    the rights of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paras 2(a) to 2(d).

3.    The rights and interests of the State of Queensland in the Reserve, the rights and interests of the trustee of that Reserve and of the persons entitled to access and use that Reserve for the purpose for which it is reserved.

4.    The rights and interests of Cook Shire Council (“the Council”) including any rights the Council, its employees, agents or contractors have:

(a)    under its local government jurisdiction and functions under the Local Government Act, under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within its local government area, as defined in the Local Government Act;

(b)    as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the determination, including but not limited to:

(i)    dedicated roads operated by Council;

(ii)    gravel pits operated by Council;

(iii)    undedicated but constructed roads except for those not operated by Council;

(iv)    water pipelines and water supply infrastructure;

(v)    drainage facilities;

(c)    to enter the land described in paragraphs 4(a) to 4(b):

(i)    exercise any of the rights and interests referred to in paragraph 4(a) to 4(b);

(ii)    inspect, maintain or repair infrastructure, facilities and other improvements; and

(iii)    undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.

5.    The rights and interests of RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited (and any successors in title) under the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) (“Comalco Act”) and the Commonwealth Aluminium Corporation Pty Limited Agreement (which is given statutory force by the Comalco Act) (“Comalco Agreement”) to utilise, be present on, mine and/or perform other activities on the Determination Area, including:

(a)    access;

(b)    areas adjacent to, in the vicinity of or outside the “bauxite field” (as defined in the Comalco Agreement) or the “western bauxite field” (as defined in the Comalco Agreement), being any part of the Determination Area;

(c)    land outside Mining Lease No. 7024;

(d)    foreshores, tidal land and tidal water; and

(e)    the Wenlock River and its tributaries and areas on or in the vicinity of the Wenlock River and its catchment area.

6.    The rights and interests of Alcan South Pacific Pty Ltd (and any successors in title) under:

(a)    the Alcan Queensland Pty Limited Agreement Act 1965 (Qld) (“Alcan Act”) and the agreement made and varied pursuant to the Alcan Act (which is given statutory force by the Alcan Act) (“Alcan Agreement”) to utilise, be present on, mine and/or perform other activities on, and to obtain other rights and interests with respect to, the Determination Area, including the rights in the Alcan Agreement with respect to:

(i)    access;

(ii)    areas within the “bauxite field” (as defined in the Alcan Agreement);

(iii)    areas adjacent to, in the vicinity of or outside the bauxite field, being any part of the Determination Area;

(iv)    the Wenlock River and the Ducie River and their respective tributaries and areas on or in the vicinity of the Wenlock River and/or the Ducie River and their respective catchment areas; and

(v)    areas adjacent to Mining Lease No. 7031; and

(b)    Mining Lease No. 7031.

7.    The rights and interests of members of the public arising under the common law, including but not limited to the following:

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

8.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    coastal waters;

(d)    beaches;

(e)    stock routes; and

(f)    areas that were public places at the end of 31 December 1993.

9.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1    Clearly today is an important day for the traditional owners in the north western part of Cape York Peninsula. Today, the Federal Court makes orders that will finalise not only the two determination applications filed on behalf of the Ankamuthi People in 1998 and 2014 (Applications QUD 6158 of 1998 and QUD 392 of 2014) but also this application (QUD 780 of 2016) filed in 2016 by the Northern Cape York Group #3 Native Title Claim Group. This application is described as NCY#3.

2    In 2014, the Court made orders which determined the traditional rights and interests of the Northern Cape York #1 native title holding group constituted by the Angkamuthi Seven Rivers, the McDonnell Atampaya and the Gudang/Yadhaigana people: see Woosup on behalf of the Northern Cape York #1 Native Title Claim Group v State of Queensland [2014] FCA 1148 (NCY #1).

3    The Determination Area the subject of this application has been excised from the previously overlapping parts of both the Ankamuthi People #1 and the Northern Cape York #1 applications.

4    The time frame within which this application has been progressed to a proposed consent determination is short indeed. The parties have taken less than one year to reach a position where they are now in a position to ask the Court to make orders under s 87 of the Native Title Act 1993 (Cth) (“the Act”) recognising the native title rights and interests of the claimant group. This NCY #3 application was filed on 7 October 2016. It was placed on the Register of Native Title Claims on 7 November 2016. The period of notification, in accordance with s 66 of the Act, ended on 27 March 2017.

5    The application is brought on behalf of the native title claim group by four members of the group, John Henry Anderson, Francis Jimmy Brisbane, Jonothan Albany Yusia and Gina Marilyn Nona.

6    The area of land and waters the subject of this claim was previously included in both the Ankamuthi People #1 and Northern Cape York Group #1 applications. As a result of discussions and negotiations with the indigenous respondent parties to the Ankamuthi People #1 application and the NCY #1 claimants (who each asserted rights and interests in the area), the Determination Area was excised, firstly, from the area of the NCY #1 determination application, and subsequently from the area of the Ankamuthi People #1 determination application. The determination application over the same area (and described in Part A of Schedule 1 to the orders made today) was subsequently made by the NCY #3 applicant. The Determination Area is partly within the Mapoon Deed of Grant in Trust (the “DOGIT”) area, and is informally known within the regional community as the “NPA” (the “Northern Peninsula Area”).

7    The respondent parties to the application are the State of Queensland, Cook Shire Council, Torres Shire Council, Old Mapoon Aboriginal Corporation, Alcan South Pacific Pty Ltd, RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited. I want to recognise and commend the affirmative and engaged approach adopted by the Cape York Land Council in engaging with those parties having interests in the Determination Area prior to the end of the notification process. This approach has facilitated early negotiations and greatly helped to resolve the issues between the parties. Again, I would like to particularly acknowledge the role played by Mr John Reeve, the solicitor for the Cape York Land Council, in bringing about this result.

8    The native title claim group the subject of this application is comprised of all persons descended by birth or adoption from the identified apical ancestors whose names are set out in Schedule 3 to the orders made today. The claim group is the same claim group, descended from the same apical ancestors, as described in the NCY #1 determination.

9    For the purposes of this application, I have closely considered again the anthropological and genealogical reports of Dr Anthony Redmond which I previously considered in relation to the Northern Cape York Group #2 application and determination (Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 (NCY #2)) and the NCY #1 application and determination. I have had regard to the following reports exhibited to the affidavits of Dr Redmond and filed in the NCY #1 proceeding on 1 September 2014 and referred to in his affidavit filed in these proceedings on 16 May 2017:

    A Northern Cape York Peninsula Regional Society: Identifying the regionally shared level of society for the NCY #1, NCY #2 and proposed NCY #3 Native Title Claimant Groups, being Exhibit “AJR10” to the Redmond affidavit #2 - Dr Anthony Redmond, June 2012 (the “Society Report”);

    Northern Cape York #1 - QUD 157/11 Native Title Connection Report dated August 2012, being Exhibit “AJR11” to the Redmond affidavit (the Connection Report) – Dr Anthony Redmond;

    NCY #1 and #2 Claims: Supplementary Report – Anthropologist’s response to the State of Queensland’s assessment and request for further information in regard to the connection materials, being Exhibit AJR12 to the Redmond affidavit #2 (the “Supplementary Report”) - Dr Anthony Redmond, 26 June 2013.

    Updated genealogical charts being Exhibit “AJR13” to the Redmond affidavit.

10    I have had regard to the provisions of s 86 and s 82(1) of the Act. Section 86(1)(c) relevantly provides that, subject to s 82(1), the Court may adopt any finding, decision or judgment of any Court (including the Federal Court of Australia) in a proceeding before that Court. Section 86(2) has no operation in the circumstances of this application. I have considered s 86(1) and also s 82(1) which provides that the Federal Court is bound by the rules of evidence except to the extent that the Court otherwise orders. Having regard to the nature of these proceedings and the relationship between the issues raised in this application and the findings, reasons for judgment and orders made in the NCY #1 proceeding concerning the issues alive in that proceeding, I adopt, for the purposes of this application, all of the findings made in the NCY #1 proceeding in relation to the following matters. I am satisfied that those persons (that is, the group of persons) who possessed rights and interests under traditional laws and customs in relation to the Determination Area at the time of “effective sovereignty” (see [20] of these reasons) were the apical ancestors of persons who today identify as members of the Angkamuthi Seven Rivers group, the McDonnell Atampaya group and the Gudang/Yadhaigana group. I am satisfied that the rights and interests of those persons who so identify today, are rights and interests held by them (as described in paragraphs 6 and 7 of this determination, subject to the paragraphs of the determination generally), derived from and consistent with the traditional laws and customs observed at sovereignty and as adapted since sovereignty as found by me in determination NCY #1. I will elaborate upon aspects of those findings later in these reasons. I will also refer to aspects of the evidence in NCY #2 to the extent that that evidence bears upon the issues alive in these proceedings and has been made relevant to these proceedings.

11    The Cape York Land Council Aboriginal Corporation is the native title representative body for the region and is the legal representative for the claim group in relation to this application.

12    The principles which govern the considerations to be taken into account by the Court in making a consent determination of native title rights and interests for the purposes of s 87 of the Act are well understood and do not need to be repeated in these reasons. I am satisfied that the relevant pre-conditions to the exercise of the Court’s power are satisfied.

13    Thus, the Court is satisfied that orders to be made today consistent with the terms of the s 87 Agreements are within power and that it is appropriate to make orders in and consistent with those terms without holding a hearing. I am satisfied that the body of evidence filed by the applicant supports the proposed orders.

14    The Court is also satisfied for the purposes of ss 13(1) and 61(1) of the Act that there is no approved determination of native title in relation to the land and waters the subject of these proceedings.

15    A determination of native title expresses the recognition and protection of those rights and interests in relation to land and waters defined and described in s 223 of the Act which find their origin in traditional laws and customs acknowledged and observed by Aboriginal peoples: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (“Yorta Yorta”) at [75] and [76], Gleeson CJ, Gummow and Hayne JJ.

16    A determination of native title requires the Court to determine who are the persons or group of persons who hold the common or group rights comprising the native title; the nature and extent of those rights and interests in the Determination Area; the nature and extent of any other interests; and the relationship between the native title rights and interests and those other interests, in the Determination Area (s 225 of the Act).

17    I made the following observations on the evidence presented to the Court in the context of the NCY #2 judgment:

[24]    Dr Redmond is a Visiting Research Fellow at the Centre for Aboriginal Economic Policy Research at the Australian National University. He is an Australian Research Council Fellow who undertook a joint project entitled “Aboriginal Involvement in the inter-cultural frontier Economy”. Dr Redmond has conducted a wide-range of research activities in the discipline of anthropology with particular emphasis upon the foundation for communal, group or individual cultural rights, practises and interests of Aboriginal people. Dr Redmond has undertaken extensive research on this topic in Northern Cape York. Dr Redmond has conducted research in relation to native title claims on behalf of the Northern Cape York Group #2 (“NCY #2”) and also in relation to the claim made by the Northern Cape York Group #1 (“NCY #1”) claimants.

[25]    Having regard to that research, Dr Redmond says this:

I came to the professional opinion that the set of regionally shared socio-cultural features and regular interactive patterns characteristic of the groups traditionally associated with the NCY #1 and #2 claim areas indicated that the claimants’ predecessors shared membership of a single society constituted through a body of shared traditional laws and customs, all of which had degrees of bearing upon the allocation of landed rights and interests. …

[emphasis added]

[26]    Dr Redmond sets out extensive analysis which represents the foundation for that view. It is not necessary to repeat in these reasons the content of that analysis. Dr Redmond, in forming his professional opinion, also had regard to a wide body of anthropological research work concerning the peoples of Northern Cape York. That body of anthropological research work includes the work of Lauriston Sharp in 1933, 1934 and 1935. It includes the results of field research expeditions to Cape York in 1928 and in 1932/1933 by Donald Thomson including fieldwork in Weipa and Mapoon, with particular reference to Thomson’s papers in 1934, 1939 and 1972. It includes reference to the work of Ursula McConnel who travelled extensively throughout Cape York between 1927 and 1934 and conducted fieldwork to produce a series of reference papers in 1936, 1939 and 1950. It also includes reference to the work of Terrence Crowley, a linguist who undertook field work in Cape York in the 1970s and who produced two publications in 1981 and 1983 of relevance to regionally shared socio-cultural features and patterns of interaction of Aboriginal peoples within the Determination Area the subject of the present claim.

[27]    More contemporary work has also been reviewed by Dr Redmond and that work includes the work of Thompson and Chase of 2006 and 2009; the work of Chase, Smith and Thompson of 2005 and the work of Rigsby in 1995 and 1999.

[28]    As a result of an analysis of all of this work and Dr Redmond’s own work, he has prepared a map which demonstrates an “overlay” of anthropological data demonstrating considerable overlap of Northern Cape York Peninsula “socio-cultural-linguistic features” and, from the research and data, Dr Redmond identifies an area in which the indigenous people of Northern Cape York shared “an overwhelming preponderance of shared laws and customs in regard to local and social organisation, language affinities, kinship and marriage customs, ceremonial and cosmological beliefs, ritual prohibitions on eating of totemic species, emic perspectives on their relative sameness and difference with their neighbours [perspectives on the language and culture of the peoples in terms of their internal functioning within the group] and regional dispute resolution practices”.

18    It is important to again note Dr Redmond’s research in relation to the identification of the members of the claim group through extensive genealogical research by many prominent anthropologists working in Northern Cape York. At [36] of the Connection Report, Dr Redmond concludes that:

The forty-eight sources listed in the genealogical database incorporate my own field research as well as drawing upon a wide range of secondary sources including the field-notes of Sharp (1933-4) and Hinton (1963), as well as the more recent reports of Fuary and Greer (1993), Kwok (1998), Elias (1998), McKeown (1996), Taylor and Powell (2008), Powell (2004; 2010), Thompson (2009). The genealogies also incorporate parts of the database compiled by Peter Blackwood and his associates which mostly pertains to the people of the NCY#2 claim area but also contains various relevant information for the current NCY#1 claimant group. The sources cited in the genealogies also include extracts from the Register of Births, Deaths and Marriages, and those drawn from the records of the Presbyterian Church at Mapoon, as well as extracts from information provided by the Community Personal Histories (CPH) section of the Queensland Government.

19    At [78], Dr Redmond provides some insight into the nature of the groups who comprise the NCY #3 claim group and the relationship between them. He says that in formal linguistic terms, the languages of the Northern Cape Group belong to a single language category known as the “Northern Pama Sub-Group” of Australian languages (Crowley 1980; Oates and Oates 1970; Sutton 1976; Hale 1976; Alpher 1976). Crowley found that the three prominent surviving languages in the area during his fieldwork period were Atampaya (also known as McDonnell River People), Angkamuthi (Seven Rivers People) and Yadhaykenu (Shelburne Bay to Pudding Pan Hill people; Appendix 1 Map).

20    In Dr Redmond’s view “effective sovereignty” coincided with the establishment of the first permanent European presence with the arrival of the Jardine brothers at Somerset in 1864. Dr Redmond says that the degree of disruption in the more southern reaches of the claim area appears to have been somewhat less intense than in the northern tip. As to the Jardine family, I commend to you the present exhibition at the Cairns Art Gallery of one powerful Aboriginal interpretation of the role of the Jardine family in the early history of the Aboriginal people of the north western part of the Cape York Peninsula. I also want to mention and commend to you the work of Teho Ropeyarn called “Unsettled Country 2017” on display at the moment at the “Kick Arts” Gallery which is concerned with interpretations of the treatment of the Aboriginal people of Northern Cape York by Frank Jardine and his family. I also want to mention and commend to you the etching on paper by Teho Ropeyarn and Paul Bong also on display at the Kick Arts Gallery entitled “Tribal Fighting 2017” which shows the historical weapons of the Angkamuthi, Yadhaykenu, Atampaya and Gudang peoples. I mention these works having regard to the observations I have just made in para 19 of these reasons.

21    Dr Redmond concludes that the relationship between the Aboriginal people and the new settlers was deeply ambivalent and often violent. Sheep and cattle stations were established from the mid-1860’s and the overland telegraph line was constructed in the 1880’s. The McDonnell telegraph station was opened in 1887. Dr Redmond refers, in the Connection Report, at para 7 to a report from Archibald Meston (later the Protector of Aboriginals), who in 1896 wrote about the inhabitants of the claim area:

From Newcastle Bay south to Princess Charlotte Bay … are still in their original condition … There is no settlement whatever, nor is there a single white man resident over the whole of that extensive territory, except for a few miners on one locality … the tribes to the westward [of the east coast], between the coast and the telegraph line, are still absolutely wild, and … free from any intercourse or contamination by white men … the whole western coast north from the Mitchell to the Jardine River [is] in absolute possession of the wild tribes.

22    In the reasons in NCY #2, reference was also made to engagement with early explorers by the ancestors of the claim group:

In 1606 the Dutch vessel Duyfken sailed down the west coast of Cape York Peninsula and sighted land at the Pennefather River in the Determination Area and entered Port Musgrave and the Wenlock River where particular interactions occurred with Aboriginal peoples. In April and May 1623, Jan Carstenzoon led the Dutch vessels Pera and Arnehem on an exploratory mission from Torres Strait down the west coast of Cape York Peninsula to about the Staaten River in the south. Carstenzoon named the river now known as the Wenlock River as the Carpentier River. Carstenzoon’s diaries provide some detail of huts and weaponry and native dwellings seen at the Skardon River. In 1802, Matthew Flinders in the Investigator sailed down the western side of Cape York Peninsula passing Port Musgrave and making particular observations.

23    The rights and interests recognised in the orders made today derive from the traditional laws and customs as adapted since sovereignty. Dr Redmond’s Society Report examines the available evidence in relation to the cosmology, the role of regional elders, the linking of language, shared responsibilities for ceremony, trade and exchange, spiritual beliefs, laws and customs governing regional dispute resolution processes, and a regionally shared mode of aggregating local descent groupings under toponymic labels.

24    Dr Redmond has included various maps in the Society Report that demonstrate pictorially the areas associated with particular laws and customs, as found by Sharp, Thomson, McConnel, Crowley, Alpher and Hale. One of the maps includes an aggregate of the earlier maps and is striking because of the broad commonality of areas associated with those laws and customs.

25    Dr Redmond comments on this particular map at para 193(n) of the Society Report:

It will be observed from this map that it is possible to delineate an area in which the Indigenous people of Northern Cape York Peninsula clearly shared an overwhelming preponderance of shared laws and customs in regard to local and social organisation, language affinities, kinship and marriage customs, ceremonial and cosmological beliefs, ritual prohibitions on eating of totemic species, emic perspectives on their relative sameness and difference with their neighbours and regional dispute resolution practices. In my opinion, these data all point towards the existence of a single regional society uniting the NCY#1, [NCY]#2 and proposed NCY#3 claimant groups under a shared body of laws and customs.

26    As Dr Redmond notes in the NCY #1 Connection Report:

The wider Aboriginal jural public of Northern Cape York Peninsula … which upholds the laws and customs in the claim region is more extensive than any single language group and lower-level divisions (including the patriclans recorded at the threshold of colonisation and their present incarnation in contemporary kin-based groupings). For this reason the claimant group can be distinguished from the wider regional society within which it is embedded.

27    Dr Redmond concludes that, at all relevant times, a normative system of traditional law and custom has governed the lives of the claimants and their ancestors:

The predecessors of the NCY#1 claimant group used, occupied and enjoyed a lawful and regulated jurisdiction over the NCY#1 Claim Area … prior to the assumption of effective sovereignty which coincides with the establishment of the first permanent European presence at Somerset in about 1860. That lawful use and occupation has been perpetuated across succeeding generations to the present day under a body of shared traditional laws and customs.

28    The members of the broad Northern Cape York Society have provided extensive evidence of their continuing connection to the claim area. Members of the claim group live in the five communities within the external boundary of the determination area, Injinoo, Seisia, Bamaga, Umagico and New Mapoon and in semi-permanent camps and outstations. Dr Redmond refers to numerous statements he has obtained from members of the claim group attesting to various activities on country such as hunting, gathering, fishing, camping, manufacturing implements for hunting and fishing, burning country and protecting places. Continuity is expressed in terms of adherence to particular laws, customs, practices and beliefs.

29    I am satisfied, having regard to the anthropological reports in evidence, that the nature and extent of the native title rights and interests in relation to the land and waters of the Determination Area are these.

30    The Determination Area comprises that part of Lot 8 on SP252492 north of the Ducie River and south of Palm Creek. As to the land and waters described in Part 1 of Schedule 1 otherwise known as the “Exclusive Areas” of exercise of the native title rights and interests, those rights and interests are, other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others, and in relation to Water, the non-exclusive rights to hunt, fish and gather from the Water of the area, take and use the Natural Resources of the Water in the area, and take and use the Water of the area, for cultural, personal, domestic and communal purposes. “Water” has the definition attributed to it as set out in Order 15 of the orders published today.

31    The applicant relies on the provisions of s 47A of the Act to disregard prior extinguishment to part of the DOGIT land held by the Old Mapoon Aboriginal Corporation. Having regard to Dr Redmond’s reports, the requirement in s 47A(1)(c) that, at the time the application was made, one or more members of the claim group occupied the area, is satisfied.

32    As to the land and waters in Part 2 of Schedule 1, otherwise known as the “Non-Exclusive Areas” of exercise of the native title rights and interests, those rights and interests are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    hunt and fish in or on, and gather from, the area;

(c)    take, use, share and exchange Natural Resources on the area;

(d)    take and use Water from the area for cultural, personal, domestic and communal purposes;

(e)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(f)    conduct ceremonies on the area;

(g)    be buried and to bury native title holders within the area;

(h)    maintain places of importance and areas of significance to the native title holders under their traditional laws and customs on the area and to protect those places and areas from harm;

(i)    teach on the area the physical and spiritual attributes of the area;

(j)    hold meetings on the area;

(k)    light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation; and

(l)    be accompanied on to the area by those persons who, though not native title holders, are:

(i)    spouses or partners of native title holders;

(ii)    people who are members of the immediate family of a spouse or partner of a native title holder; or

(iii)    people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.

33    The native title rights and interests so described are subject to and exercisable in accordance with the laws of the State of Queensland and the Commonwealth, the traditional laws acknowledged and traditional customs observed by the native title holders, and the other interests in the Determination Area referred to in Schedule 4 to each of the Orders made today.

34    The applicant has resolved that the native title rights and interests are to be held in trust by the Ipima Ikaya Aboriginal Corporation RNTBC (ICN 8114) as the prescribed body corporate. The written nominations and written consents required by s 56(2)(a) of the Act were filed with the Federal Court. The orders provide that upon the determination taking effect, the native title is to be held in trust for the common law holders and Ipima Ikaya Aboriginal Corporation is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the Act and is to perform the functions mentioned in s 57(1) of the Act after becoming a registered native title body corporate. The common law native title holders have notified the Court by an affidavit of Gina Nona filed on 16 May 2017 that the Ipima Ikaya Aboriginal Corporation is nominated as the prescribed body corporate to be the trustee of the native title determined in this proceeding. The determination will take effect according to the terms of Order 2 of the orders. No determination under s 57 of the Act is required having regard to the operation of s 56 of the Act.

35    On the basis of all of the matters described in these reasons, I am satisfied that the Court has power to make the determinations in the terms proposed and that it will be appropriate to do so in all the circumstances. I again acknowledge the co-operative approach adopted by all of the parties in the resolution of this application.

36    The orders made today give recognition within the Australian legal system to the native title rights and interests of the Northern Cape York #3 People in relation to the Determination Area. The Court acknowledges that, following the earlier determinations in NCY #1 and NCY #2, and in Ankamuthi #1 and #2, the people of Northern Cape York have, and always have had, native title rights and interests in land within the broad regional area that is the subject of Dr Redmond’s detailed anthropological record of Aboriginal peoples in this Determination Area and the areas previously determined by me.

37    The Court now publishes the orders comprising the determination.

Associate:

Dated: 26 July 2017

SCHEDULE OF PARTIES

QUD 780 of 2016