FEDERAL COURT OF AUSTRALIA

Woosup on behalf of the Ankamuthi People #1 v State of Queensland

[2017] FCA 831

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 6158/1998, 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 780/2016.

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.

F.    The Applicant, the State of Queensland and RTA Weipa Pty Ltd (as assignee from the Rio Tinto Aluminium Limited, formerly Comalco Aluminium Limited) are parties to an agreement known as the Western Cape Communities Co-existence Agreement dated 14 March 2001 (“the WCCCA”) which was registered as the Comalco ILUA on the Register of Indigenous Land Use Agreements on 24 August 2001, an extract of the relevant parts of which is contained in Schedule 5.

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.    The determination will take effect upon the agreement referred to in paragraph 2(a) of Schedule 4 being registered on the Register of Indigenous Land Use Agreements. In the event that the agreement referred to in paragraph 2(a) is not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

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

BY CONSENT THE COURT DETERMINES THAT:

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

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

6.    The native title is held by the Ankamuthi People Native Title Claim Group, being the persons descended from the apical ancestors described in Schedule 3 (“the native title holders”).

7.    Subject to paragraphs 9, 10 and 11 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.

8.    Subject to paragraphs 9, 10 and 11 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.

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

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

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

(c)    the terms and conditions of the agreements referred to in paragraph 2 of Schedule 4.

10.    The native title rights and interests referred to in paragraphs 7(b) and 8 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

11.    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).

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

13.    The relationship between the native title rights and interests described in paragraphs 7 and 8 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.

14.    For the avoidance of doubt, the relationship between the native title rights and interests described in paragraphs 7 and 8 and the other interests of RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited in paragraph 5 of Schedule 4 is that on the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, the grant of Special Bauxite Mining Lease 1 or the registration of the WCCCA, the Comalco Act, the Comalco Agreement, the conferral of the Comalco Interests, the performance of the Comalco Activities or the WCCCA, whether done before or after the date of this determination, prevail over the native title rights and interests to the extent of any inconsistency.

15.    For the avoidance of doubt, the relationship between the native title rights and interests described in paragraphs 7 and 8 and the other interests of 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.

16.    For the avoidance of doubt, the relationship between the native title rights and interests described in paragraphs 7 and 8 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

17.    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 Activities” has the meaning given in the WCCCA;

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

“Comalco Interests” has the meaning given in the WCCCA;

“High Water Mark” means the ordinary high-water mark at spring tides;

“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 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).

“Water” means:

(a)    water which flows, whether permanently or intermittently, within a river, creek or stream;

(b)    any natural collection of water, whether permanent or intermittent;

(c)    tidal water

“WCCCA” has the meaning given in Note F.

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:

18.    Upon the determination taking effect:

(a)    The native title is held in trust;

(b)    The Seven Rivers Aboriginal Corporation (ICN: 8522), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

(ii)    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 Mining Lease No. 7031.

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:

*denotes a lot to which s 47A of the Native Title Act 1993 (Cth) applies.

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 Map described in column 2 of the following table:

Note

Data Reference and source

•    Application boundary data compiled by National Native Title Tribunal based on information data sourced from the applicants.

•    Cadastre data sourced from Department of Natural Resources and Mines, Qld (November, 2016).

•    Rivers / Creeks based on cadastral data (November 2016) – else Topographic vector data is © Commonwealth of Australia (Geoscience Australia) 2008.

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

1.    The native title holders are the Ankamuthi People Native Title Claim Group, being the persons descended by birth or adoption from the following apical ancestors:

(a)    Woobumu and Inmare;

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

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

(d)    Charlie Seven River;

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

(f)    Asai Charlie;

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

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

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

(j)    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 parties under the following agreements:

(a)    Charles Woosup, George Mamoose, Michael Toby, Asai Pablo, Tracey Ludwick, Ella Hart (Deemal), Nelson Stephen, Ben Tamwoy, Catherine Salee and Mark Gebadi on their own behalf and on behalf of the Ankamuthi People (QUD6158/1998) and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the indigenous land use agreement dated 6 June 2017; and

(b)    the WCCCA.

3.    The rights and interests of Ergon Energy Corporation ACN 087 646 062:

(a)    as the owner and operator of any “works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

(b)    as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);

(c)    created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:

(i)    rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made;

(ii)    rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and

(iii)    to inspect, maintain and manage any works in the Determination Area.

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 2009 (Qld), 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 2009 (Qld);

(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:

(a)    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:

(i)    the Comalco Interests and the rights to perform the Comalco Activities; and

(ii)    the rights in the Comalco Agreement with respect to:

(A)    access;

(B)    areas within the “bauxite field” (as defined in the Comalco Agreement) or the “western bauxite field” (as defined in the Comalco Agreement);

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

(D)    land outside Mining Lease No. 7024; and

(E)    foreshores, tidal land and tidal water;

(b)    the WCCCA; and

(c)    Mining Lease No. 7024.

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

(a)    access;

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

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

(e)    areas on or in the vicinity of the Ducie River and its catchment area;

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

(g)    a site on Port Musgrave.

7.    The rights and interests granted by the State of Queensland pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licenses, permits or authority pursuant to the Fisheries Act 1994 (Qld) and regulations, declarations or management plans made under that Act.

8.    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.

9.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (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.

10.    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.

Schedule 5

EXTRACTS OF THE WESTERN CAPE COMMUNITIES CO-EXISTENCE AGREEMENT DATED 14 MARCH 2001

1.    DEFINI-TIONS AND INTERPRETATION

1.1    Definitions

When used in this Agreement, including the Recitals, the following terms will have the following meanings unless the subject or the context otherwise requires:

1.2    Interpretation

In this Agreement, including the Recitals, except to the extent that the subject or the context otherwise requires:

1.2.1    the following terms have the meanings respectively assigned to them in the NTA:

1.2.1.1    applicant;

1.2.1.2    claimant application;

1.2.1.3    native title claim group;

1.2.1.4    registered native title claimant;

1.2.1.5    representative body;

1.2.1.6    native title;

1.2.1.7    native title group;

1.2.1.8    native title holder;

1.2.1.9    native title rights and interests; and

1.2.1.10    for the purposes of any provisions in this Agreement concerning native title or native title rights and interests:

1.2.1.10.1    land; and

1.2.1.10.2    waters.

1.2.2    a reference to Aborigines, Aboriginal People or Aboriginals is a reference to Aboriginal peoples as defined in s253 of the NTA;

1.2.3    reference to any legislation or to any provision of any legislation includes any modification or re-enactment of, or any legislative provision substituted for, and all legislation and statutory instruments issued under, such legislation or such provision and includes the corresponding legislation in such other State or Territory of the Commonwealth of Australia as may be relevant from time to time;

1.2.4    words (including words defined in this Agreement) denoting the singular number include the plural and vice versa;

1.2.5    words importing natural persons (where appropriate) include corporations, firms, unincorporated associations, partnerships, trusts and any other entities recognised by law and vice versa;

1.2.6    words denoting any gender include all genders;

1.2.7    words “written” and “in writing” include any means of visible reproduction of words in a tangible and permanently viable form;

1.2.8    reference to a “right” includes an entitlement, remedy, discretion and power;

1.2.9    reference to “interest” includes any estate or interest, legal or beneficial, and whether real or personal;

1.2.10    reference to “permit” includes consent to, authorise and allow;

1.2.11    reference to “valid” includes having full force and effect and reference to “invalid” includes not having full force and effect;

1.2.12    reference to a “People” in the list of the Parties on page 1 of this Agreement is a reference to the Native Title Parties for those People, as detailed in the definition of Native Title Parties in clause 1.1;

1.2.13    reference to a “native title determination” means a native title determination as defined in s 225 of the NTA;

1.2.14    reference to “registration” in relation to applications for native title determinations refers to registration on the Register of Native Title Claims and in relation to this Agreement refers to registration on the Register;

1.2.15    when referring to native title, “affects” has the same meaning as in s227 of the NTA;

1.2.16    when referring to native title or native title rights and interests, a “surrender” takes place on the later of:

1.2.16.1    immediately after the registration of this Agreement; or

1.2.16.2    the event on the occurrence of which the Parties have agreed the surrender is to occur,

and means a surrender of those native title rights and interests to Queensland;

1.2.17    reference to “consent” to an act after the Registration Date by the Communities or the Native Title Parties means that the Communities or the Native Title Parties also give that consent from the Commencement Date by virtue of the operation of this Agreement at common law;

1.2.18    if an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing;

1.2.19    reference to anything (including a right, obligation or concept) includes each part of it;

1.2.20    where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

1.2.21    reference to a Schedule or an Attachment is a reference to a schedule or attachment to this Agreement;

1.2.22    reference to a sub-clause is a reference to the sub-clause of the clause in which it appears, reference to a paragraph is a reference to a paragraph of the sub-clause in which it appears and reference to a sub-paragraph is a reference to a sub-paragraph of a paragraph in which it appears;

1.2.23    reference to a document or agreement, or provision of a document or agreement, is to that document, agreement or provision as novated, supplemented, varied or replaced from time to time;

1.2.24    a recital, schedule, annexure or a description of the Parties forms part of this Agreement;

1.2.25    a reference to any party to this Agreement or any other document or arrangement or other party identified in this Agreement or any other document or arrangement includes that party's executors, administrators, substitutes, successors and permitted assigns and agents;

1.2.26    a reference to a Minister, Department, authority, body or person includes the Minister, Department, authority, body or person for the time being performing the functions performed by the Minister, Department, authority, body or person at the Commencement Date;

1.2.27    unless otherwise stated, a reference to “dollars” or “$” is to Australian currency;

1.2.28    a reference in the body of this Agreement or in a Schedule to a clause is a reference to a clause in the body of this Agreement or that Schedule, respectively;

1.2.29    …

1.2.30    where under this Agreement, Comalco commits to discriminate positively in favour of Aboriginal persons, Comalco will use its best endeavours to obtain such authorisations, if any, as may be necessary to allow it to lawfully discriminate in the manner outlined in this Agreement but Comalco's commitments are only activated once Comalco has obtained those authorisations;

1.2.31    a reference to “relevant Traditional Owner Groups” is to those Traditional Owner Groups whose Claim Areas include the land to which the operation of a provision applies and if there is uncertainty as to their identity those nominated by the Co-ordinating Committee;

1.2.32    a reference to land is to be taken to be also a reference to waters;

1.2.33    …

1.2.34    “extension” refers to an extension of term; and

1.2.35    consents in this Agreement when given on behalf of a native title holder are deemed to have been authorised in accordance with s251A of the NTA.

1.3    Headings

The headings in this Agreement are for the purpose of more convenient reference only and will not form part of this Agreement or affect its construction or interpretation.

1.4    Parts of agreement applying to Queensland

1.4.1    Queensland will not be:

1.4.1.1    bound by any obligations under this Agreement expressed to be obligations of a Party or the Parties; and

1.4.1.2    entitled to exercise any rights under this Agreement expressed to be a right of a Party or the Parties,

unless they are expressly stated to apply to Queensland. Further, Queensland is not entitled to rely on any acknowledgment in this Agreement unless it is expressly stated to be for the benefit of Queensland.

1.4.2    Queensland is bound by, entitled to exercise rights under, and receives the benefits of clauses 1, 2 (but it is not bound by any provisions, including clauses 2.3.11, 2.4, 2.7, 2.8, 2.9 and 2.11.1, to the extent those provisions require it to accept the terms of the Model Determination or its operation), 4, 5, 11.4, 19, 20, 21, 22 and 26 to 46 inclusive and the corresponding schedules.

1.5    Interpretation for Native Title

1.5.1    Despite any other provision of this Agreement, the provisions of this Agreement which deal with the co-existence of native title and the Comalco Interests, the Other Interests, or the performance of the Comalco Activities on any land the subject of SBML 1 when it was originally granted apply only to those parts of the ILUA Area where native title was not extinguished by:

1.5.1.1    the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1; or

1.5.1.2    any other rights or interests granted pursuant to the Comalco Act, the Comalco Agreement or SBML 1; or

1.5.1.3    any other legislation,

and nothing in this Agreement compromises the rights of any Party to contend that native title has been extinguished, either fully or partially, in all or any part of the ILUA Area but Comalco will only contend such extinguishment if any member of the Communities or any person on their behalf makes a Claim contending that native title survives to:

1.5.1.4    the Designated Minerals within or taken from the Mining Leases; or

1.5.1.5    New SPMPLs or Other Interests.

1.5.2    Neither Comalco nor any other Party may rely on the surrenders or extinguishments referred to in clauses 2.2.3 and 2.2.4 in any court proceedings:

1.5.2.1    prior to the Registration Date in relation to surrenders within clause 1.2.16.1; and

1.5.2.2    prior to the date of surrender in relation to surrenders within clause 1.2.16.2 except for the specified purposes of the surrender,

except in proceedings relating to the enforcement of this Agreement or any native title determination or claimant application to the extent that it relates to the ILUA Area.

1.5.3    Where this Agreement states that the native title rights and interests have “no effect”, it means that the traditional rights and interests comprising native title are not able to be enjoyed or exercised but, where applicable and subject to the other provisions of this Agreement, the Communities are able to exercise the rights given to them under the NTA, such as the right to negotiate1 and the right to be consulted about various activities.

1.5.4    Where this Agreement provides that native title rights and interests have “no effect” in relation to the Comalco Interests or the performance of the Comalco Activities, but “again have effect”, the Communities have no cause of action against Comalco:

1.5.4.1    for the lawful performance of the Comalco Activities; and

1.5.4.2    for things lawfully done under the authority of the Comalco Interests,

regardless of whether the Comalco Activities could have been done in a manner which would have had a lesser effect on the native title rights and interests, either temporarily or permanently.

…

2.    NATIVE TITLE

2.1    Agreement Procedures

2.1.1    The Communities are making this Agreement as occupants and residents of western Cape York Peninsula and, to the extent that they hold or may hold native title, they have authorised the making of this Agreement for the purpose of it constituting an ILUA for the whole of the ILUA Area, and as separate ILUAs as contemplated under clause 2.5.

2.1.2    The Parties agree that this Agreement is to be registered as one ILUA or separate ILUAs.

2.2    Acknowledgments of Past Matters and Present and Future Consents

The Parties make the following acknowledgments and agree to the stated effects of the acknowledgments and, subject to this Agreement, give the stated consents.

2.2.1    The Comalco Interests, the Other Interests, and the performance of the Comalco Activities to the Registration Date are valid. If any of the Comalco Interests and Other Interests, or the performance of any of the Comalco Activities, have ever been invalid to any extent, the Parties agree to their validation, and that they are taken to be valid and always to have been valid.

2.2.2    On the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1, any native title rights which may have existed yielded to the extent of any inconsistency between them and the Comalco Act, the Comalco Agreement, the conferral of any of the Comalco Interests and the performance of the Comalco Activities, whether done before or after the Registration Date. The yielded native title rights therefore do not and would not affect, by preventing, inhibiting, restricting, or otherwise qualifying, the conferral of the Comalco Interests or the performance of the Comalco Activities in any way at any time.

2.2.3    In relation to Other Interests and New SPMPLs:

2.2.3.1    at the times of the grants, or purported grants of any Other Interests or any New SPMPLs prior to the Registration Date; and

2.2.3.2    at the time of the grants of any New SPMPLs after the Registration Date,

native title has been, or will be, whichever is relevant, extinguished to the land the subject of the grants, and any that has otherwise survived or would otherwise have survived, is surrendered with that intention. The Communities consent to the grant of any New SPMPLs after the Registration Date.

2.2.4    In recognition of the benefits Comalco and Queensland has agreed to make available to the Communities under this Agreement and the position Comalco is adopting regarding the possible survival of native title to the ILUA Area, to allay doubt, if any native title rights presently subsist to all, or a portion of, the Designated Minerals either presently within, or previously taken from, the Mining Leases, those native title rights are surrendered with the intention that they be extinguished. The effect of this clause applies notwithstanding any decision of any Court regarding the extinguishment or otherwise of native title in minerals generally. The Communities will not contend the existence or survival of native title to any of the Designated Minerals, or a portion of the Designated Minerals as resources taken from the Mining Leases, either presently within, or previously taken from, the Mining Leases, from the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1. Comalco and Queensland may plead this clause in bar to any Claim brought by the Communities, any member of the Communities or any person on or for their behalf, so contending the existence or survival of native title to the Designated Minerals. The Communities by entering into this Agreement consent to Comalco or Queensland becoming a party in any matter where such a Claim is made.

2.2.5    For resources taken by Comalco under the authority of the Comalco Interests from the ILUA Area (other than the Designated Minerals), the Communities' native title rights and interests do not include a right to a portion of those resources. However to allay doubt, if any native title rights and interests comprise those rights, the Communities waive any entitlement to enforce those native title rights which may have arisen on or before the Commencement Date as against Comalco or Queensland and agree not to exercise such rights after the Commencement Date against Comalco or Queensland.

2.2.6    The Communities consent to all acts conferring upon Comalco any of the Comalco Interests listed in subparagraphs (c), (d) and (g) to (l) inclusive of the definition of “Comalco Interests” in clause 1.1 after the Registration Date and the performance of the Comalco Activities, regardless of whether those acts affect, or would but for this Agreement, affect native title.

2.2.7    If, but for this Agreement, Procedural Requirements would have applied to the conferral of a Comalco Interest, Comalco must perform those Procedural Requirements as if they still applied.

2.2.8    In relation to the Ports Corporation, the Communities consent to, after the Registration Date:

2.2.8.1    the vesting or grant of any land within the ILUA Area to the Ports Corporation; and

2.2.8.2    the conferral on the Ports Corporation or Comalco of all rights necessary to enable:

2.2.8.2.1    the grant of the Comalco Interests, including the grant of any such interest by the Ports Corporation; and

2.2.8.2.2    Comalco to perform the Comalco Activities,

and nothing in this clause is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection.

2.2.9    After the Registration Date, the Communities consent to the shipping of goods in and out of Weipa, and to any other points in the Comalco Interests near or adjacent to the sea or any waterway, but only pursuant to the Comalco Interests or for the performance of the Comalco Activities and nothing in this clause is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection.

2.2.10    Public Services for Weipa Township

2.2.10.1    The Communities consent to:

2.2.10.1.1    the construction, operation, use, maintenance or repair of; and

2.2.10.1.2    the conferral of rights or interests on any person with respect to

facilities (including but not limited to the facilities listed in Schedule 2) for public purposes in Weipa Township.

2.2.10.2    For the purposes of Queensland, the Director-General, Department of Natural Resources and Mines will be responsible for the administration of this clause.

2.3    Acknowledgments – Present and Future Matters

The Parties also make the following acknowledgments and agree to the stated effects of the acknowledgments.

2.3.1    Subject to this Agreement, Comalco is entitled to exercise all rights and interests conferred by the Comalco Interests and to perform the Comalco Activities lawfully in the manner Comalco, in its absolute discretion, deems fit and without incurring any liability to the Communities.

2.3.2    The Comalco Activities constitute activities for the purposes of s44H of the NTA.

2.3.3    Comalco is entitled to exercise a right to exclude any persons from those parts of the ILUA Area required by Comalco in exercise of the rights conferred by the Comalco Interests, the performance of the Comalco Activities, or this Agreement from time to time for operational, safety or security reasons or as required by any law.

2.3.4    For the areas where Comalco exercises a right to exclude persons:

2.3.4.1    any native title rights and interests are wholly inconsistent with the performance of the Comalco Activities and the exercise of rights under the Comalco Interests and may not be exercised by the Communities for the duration of the inconsistency;

2.3.4.2    despite any invitations or licences given by Comalco to others to enter those areas, Comalco's right to exclusive possession includes an entitlement to exclude all others from those areas; and

2.3.4.3    the native title rights and interests will continue to exist in their entirety but will have no effect in relation to the exercise of rights under the Comalco Interests or the performance of the Comalco Activities.

2.3.5    For the areas where Comalco does not exercise a right to exclude persons as acknowledged in this Agreement:

2.3.5.1    where any Comalco Interest or the performance of any Comalco Activity is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the native title rights and interests have no effect on the exercise of rights pursuant to the Comalco Interests or the performance of the Comalco Activities to the extent of any inconsistency; and

2.3.5.2    to the extent that the native title rights and interests are not inconsistent with the Comalco Interests or the performance of the Comalco Activities, the native title rights and interests are exercisable to their full extent in respect of the ILUA Area.

2.3.6    After land ceased or ceases to be subject to the Comalco Interests, native title rights and interests again had effect or can again have effect to the extent possible having regard to the effect of the Comalco Interests and the performance of the Comalco Activities. This clause is not intended to limit the operation of ss 47, 47A or 47B of the NTA.

2.3.7    Despite the acknowledgments by the Communities in clause 2.2, to the extent that native title rights and interests continue to exist, the interaction between them and the Comalco Interests and the performance of the Comalco Activities is as described in this Agreement.

2.3.8    Subdivision P, division 3 of part 2 of the NTA2 is not intended to apply, and does not apply, to any of the acts consented to or supported in this Agreement including to the renewal, regrant, extension or replacement of the Mining Leases, the grant of any Comalco Interests, or any alterations to any “right to mine” (as the term is used in subdivision P) resulting from environmental requirements, after the Registration Date.

2.3.9    Subject to clause 2.3.10, Comalco has the right (subject to obtaining any necessary Government approvals) to permit (including by way of lease, sublease, licence, delegation, assignment, invitation, or any other dealing) third parties to do any or all of the following:

2.3.9.1    exercise any of the rights conferred by the Comalco Interests or this Agreement;

2.3.9.2    perform the Comalco Activities; or

2.3.9.3    enter and remain on any area of the Comalco Interests for any purpose related to the maintenance or promotion by Comalco of its business interests, and

in exercising the rights described in this clause, Comalco will be mindful of the cultural sensitivities of the Communities.

2.3.10    In permitting third parties to carry out the activities referred to in clause 2.3.9, Comalco must require the third parties to abide by the provisions of this Agreement which would apply to Comalco if it was carrying out the activities, including the provisions dealing with cultural heritage. Comalco will remain liable to the Communities for the performance of Comalco's obligations under this Agreement by such third parties as though the acts or omissions of such third parties were the acts or omissions of Comalco.

2.3.11    Subject to this Agreement and the rights under the Comalco Interests, the native title rights and interests to the ILUA Area that might be possessed by the Possible Native Title Holders for the duration of the Comalco Interests are as specified in Order 3 in the Model Determination.

2.3.12    In relation to the ILUA Area, until the termination of the Comalco Interests the native title rights and interests of the Possible Native Title Holders do not confer possession, occupation, use and enjoyment of the land of any part of the ILUA Area to the exclusion of all others.

2.4    Registering this Agreement as an ILUA

2.4.1    In addition to all other effects that this Agreement may have at law, it constitutes an ILUA, and by execution of this Agreement, the Parties agree to its registration and to take the following steps as applicable to each of them.

2.4.1.1    As soon as practicable after the Commencement Date, the Native Title Parties who are not applicants in relation to any part of the ILUA Area at the Commencement Date will either:

2.4.1.1.1    lodge Conforming Applications in which they are the applicants; or

2.4.1.1.2    procure applicants from their respective Traditional Owner Groups to lodge Conforming Applications,

so that, subject to clause 2.4.1.2 and to the extent permitted by law, all parts of the ILUA Area are subject to Conforming Applications.

2.4.1.2    As soon as practicable, but in any event no later than 6 months after the Commencement Date, the Native Title Parties who are applicants in relation to any part of the ILUA Area at the Commencement Date or who have been Additional Native Title Parties will either amend their claimant applications, in respect of the ILUA Area, to render them Conforming Applications or withdraw that part of their claimant application, in respect of the ILUA Area, and lodge Conforming Applications in accordance with clause 2.4.1.1.

2.4.1.3    A failure by a Native Title Party to comply with clause 2.4.1.2 will be deemed to give rise to a Determination that there has been a Short Term Non-registration Event and Comalco may exercise its rights under clause 2.6.3.1 accordingly.

2.4.1.4    The Native Title Parties must use their best endeavours to procure:

2.4.1.4.1    the applicants in any Non-conforming Applications to amend their Non-conforming Application to render them Conforming Applications; and

2.4.1.4.2    any Additional Native Title Parties who become registered native title claimants to sign and agree to be bound by the terms of this Agreement.

2.4.1.5    The Native Title Parties will ensure that the applicants have, in accordance with s251B of the NTA, proper authorisation for the making of their Conforming Applications.

2.4.1.6    If a Conforming Application is not registered on the Register of Native Title Claims, then the Native Title Parties must use their best endeavours to ensure that the claimant applications made on behalf of their respective Traditional Owner Groups are registered on the Register of Native Title Claims, including by making such amendments, as agreed by Comalco, as may be necessary for registration; providing such material in support of the amended application as the Registrar or the Federal Court may require; and making such application to the Federal Court as may be necessary to achieve registration.

...

2.4.1.11    The Communities will not object to the registration of this Agreement, will use their best endeavours to have an objector withdraw any objection to registration of this Agreement and, once this Agreement is registered, will not apply to any Court, under the NTA or otherwise, to have this Agreement removed from the Register.

2.4.1.12    CYLC and the Communities will each use their best endeavours to ensure that this Agreement remains registered.

2.4.1.13    Notwithstanding clause 2.4.1.1 but subject to clause 2.4.1.14, the Native Title Parties will not be required to lodge a Conforming Application for ILUA Area B.

2.4.1.14    If a person other than a Native Title Party or an applicant authorised by a Traditional Owner Group lodges a claimant application that includes any part of the ILUA Area, then the Native Title Parties, who are the Possible Native Title Holders for that part of the ILUA Area, must, as soon as practicable after the claimant application is made, lodge or procure the lodgement of, on behalf of their Traditional Owner Group, a Conforming Application in relation to that area in accordance with this clause 2.4.1.

…

2.4.5    The Parties acknowledge that some Additional Native Title Parties might agree to be bound by the terms of this Agreement after the Commencement Date. The Parties agree to the amendment of this Agreement:

2.4.5.1    by the addition of the names of those Additional Native Title Parties in Schedule 16; and

2.4.5.2    the signing of this Agreement by those Additional Native Title Parties,

without the necessity for the Parties, other than the Additional Native Title Parties whose names are being added, to sign the amendment. On signing this Agreement as amended in accordance with this clause 2.4.5, an Additional Native Title Party is bound by, entitled to exercise rights under, and receives the benefits of this Agreement from the date of signing.

2.5    Separate ILUAs for Separate Areas

2.5.1    For the purposes of s199C of the NTA and despite anything else contained in this Agreement or any rule of law to the contrary:

2.5.1.1    subject to clause 2.5.2, this Agreement may be registered as a separate ILUA for each Claim Area or such other area within the ILUA Area determined by Comalco after consultation with CYLC and Attachment 1 will be amended accordingly; and

2.5.1.2    for each such separate ILUA a reference to “ILUA Area” will be taken to be a reference to that Claim Area or such other area within the ILUA Area determined by Comalco after consultation with CYLC.

2.5.2    Although this Agreement embodies what may become a number of separate ILUAs (see clause 2.5.1), Comalco may, for convenience, exercise its rights or perform its obligations as if all such ILUAs were the one agreement. The performance by Comalco of its obligations or the exercise of its rights as described under this Agreement will be deemed to be the performance of obligations or the exercise of rights for all of the ILUAs referred to in clause 2.5.1.

2.5.3    If at any time:

2.5.3.1    it appears to Comalco that it is likely that a native title determination will be made; or

2.5.3.2    a native title determination is made,

in relation to any part of the ILUA Area (referred to in clause 2.5 as the “Relevant Part”) in favour of any Aboriginal person not a party to, or bound by, this Agreement (referred to in this clause 2.5 as the “New Native Title Holder”) which will cause s199C(1)(b) of the NTA to apply:

2.5.3.3    then Comalco is entitled to notify the Native Title Registrar that the ILUA Area is reduced by the Relevant Part and does not include, and is taken not to relate to, the Relevant Part (and if the native title determination is made as contemplated in clause 2.5.3.2, the notification will be deemed to have been given); and

2.5.3.4    CYLC and the Communities will use their respective best endeavours to ensure that the New Native Title Holder:

2.5.3.4.1    adopts and enters into this Agreement as a Native Title Party; and

2.5.3.4.2    makes the appropriate applications to the Federal Court under s199C(1A) of the NTA seeking an order that the Federal Court not remove the details of this Agreement from the Register or, if removal is inevitable, only the minimum area possible.

2.5.4    During any period of time that this Agreement is not registered over a Relevant Part upon the Register under clause 2.5.3, then the provisions of this Agreement (other than clauses 1, 2, 3, 4, 16, 17, 18, 19, 20, 21, 22, 24, 27 and 31 through to 46 (inclusive) and the related Schedules and Attachments) will cease to apply to the Relevant Part during the relevant period.

2.5.5    If this Agreement is (or its details are) removed from the Register, and the New Native Title Holder declines to become a party to this Agreement, or it is reasonably clear, from the circumstances, that the holder does not wish to become a party to this Agreement, the Parties will use their best endeavours to ensure that this Agreement is again registered in respect of the ILUA Area except for the Relevant Part, and for the purposes of this Agreement:

2.5.5.1    “ILUA Area” is taken to exclude the Relevant Part;

2.5.5.2    (for the avoidance of doubt) clause 2 will, to the extent practicable, apply again.

…

2.11    Commitments related to clause 2

2.11.1    Except where it is allowed by this Agreement, no Party may at any time:

2.11.1.1    make a Claim in relation to the ILUA Area or the subject matter of this Agreement (whether a part of any application or other proceedings in a court, tribunal, arbitral body or other judicial or semi-judicial forum) that any matter or thing is contrary to a Model Determination or any other provision in clause 2; or

2.11.1.2    commence or prosecute any Native Title Application in connection with the ILUA Area other than a Conforming Application.

2.11.2    Unless otherwise agreed in writing by the Parties, the Communities must not, at any time, take any action to:

2.11.2.1    except as contemplated by clauses 5.4, 5.6, 11.1 and 11.2, seek the conversion of the underlying tenure of any land the subject of any Comalco Interest into Aboriginal Land;

2.11.2.2    except as contemplated by clauses 5.4, 5.6, 11.1 and 11.2 and the Weipa Township Agreement, seek any other grants of freehold or leasehold title within the ILUA Area which would impede, interfere with or prejudicially affect any of Comalco's rights or interests under the Comalco Interests or this Agreement; or

2.11.2.3    commence or prosecute any claim or other legal action relating to cultural heritage in connection with the land the subject of the Comalco Interests, except in accordance with clause 27.

2.11.3    If any Party (other than Comalco or Queensland) materially breaches the condition referred to in clause 2.11.1, Comalco may, at its discretion (and without limiting its other rights) oppose any Native Title Application in so far as it relates to that Party in any manner it sees fit (including by contending that native title to or part of, the ILUA Area has been extinguished).

2.12    Warranties by the Communities

The Communities represent and warrant to Comalco that:

2.12.1    the native title groups (other than CYLC), on whose behalf the Native Title Parties have been authorised to sign this Agreement, in respect of all parts of the ILUA Area have been identified and are as identified in the:

…; and

2.12.2    the members of each of the Traditional Owner Groups to make Conforming Applications in respect of all parts of the ILUA Area have, in accordance with s251A of the NTA, properly authorised the making of this Agreement.

…

2.14    NTA Authorisation

2.14.1    The Parties acknowledge that, but for this Agreement, certain activities may nevertheless be permitted by provisions of the NTA (other than by subdivision C, division 3 of part 2 of the NTA).

2.14.2    If a Government proposes to do any of the things the subject of the sections referred to in s24AA(4)(e), (f) and (i) of the NTA, in relation to the ILUA Area and those things directly relate to the Comalco Interests or the performance of the Comalco Activities, then such things are consented to, valid and permitted under and covered by this Agreement.

3.    SUPPORT FOR COMALCO INTERESTS AND COMALCO ACTIVITIES

3.1    General support

3.1.1    The Communities agree to, and support, Comalco's having and obtaining the Comalco Interests and the performance of the Comalco Activities.

3.1.2    The Communities will support the grant, from time to time, to Comalco of such Government approvals and authorisations in the future that are necessary for the performance of the Comalco Activities or as may be required for Comalco Activities. The Communities are not required to incur any expense in the performance of their obligations.

3.1.3    If after the Commencement Date, Comalco lawfully acquires any new rights or interests in relation to the ILUA Area (including after, where relevant, following any processes under the NTA), the Communities agree to support such rights as if they were part of the Comalco Interests under this Agreement.

3.1.4    Comalco, or any of its Associates, may carry out any act or activity, directly or indirectly, permitted or supported by clauses 3.1.1 and 3.1.2 as of right and without any payment to any other Party under this Agreement.

3.2    Specific Support

3.2.1    The support contemplated in clause 3.1 includes, subject to this Agreement, requirements that the Communities will:

3.2.1.1    support the same or similar activities carried out in parts of the Comalco Interests not previously used (for example, mining in, or transportation or access over, new areas) and construction of plant, facilities and infrastructure for the performance of the Comalco Activities;

3.2.1.2    as an alternative to ML 6024, consent to the grant of any interests that may be necessary for Comalco for access to or to transport materials between the areas of land the subject of ML 7024 which are north and south of the Embley River and to enable the construction of any infrastructure required for that access or transportation; or

3.2.1.3    if required, consent to any extensions, renewals or replacements of ML 7024 or ML 6024,

even though such rights and interests may, notwithstanding the provisions of this Agreement, be Pre-Existing Right-Based Acts.

3.2.2    Nothing in this clause 3 is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection.

3.3    Support for Gas or Energy Supply

3.3.1    Subject to the payment under clause 3.3.2, the Communities consent to the grant of any rights over the ILUA Area necessary to enable the supply of gas to the Weipa Operations and to lay any related gas pipelines or provide any storage installations and other facilities and these rights must:

3.3.1.1    be substantially similar to the rights granted over native title rights and interests for the provision of gas spur pipelines in Cape York but outside the ILUA Area (for example the gas spur lines from the proposed PNG/Queensland Gas pipeline);

3.3.1.2    have a substantially similar effect on native title rights and interests as those referred to in clause 3.3.1.1 and any compensation referred to in clause 3.3.2 will be substantially similar to that paid for the effect on native title rights and interests of the grant of the provision of gas spur pipelines in Cape York but outside the ILUA Area.

3.3.2    The nature of the rights, their effect on native title rights and interests and any compensation will be agreed by Comalco and the Co-ordinating Committee following consultation with the relevant Traditional Owner Groups. The amount of compensation must be paid to the Trustee and applied in accordance with this Agreement.

3.3.3    If the Co-ordinating Committee and Comalco cannot agree on the amount referred to in clause 3.3.2 within a reasonable time, then either may give the other notice that there is a Dispute. Clause 27 will apply to the Dispute subject to the dispute being determined by the person whom the Co-ordinating Committee and Comalco agree has, under other agreements, determined, or been appointed to determine, the amount payable as compensation for the effect on native title rights and interests of the grant of similar rights within Cape York but outside the ILUA Area. Where they cannot agree on the appointment or there is no such person, then the appointment will be made by the President of the Institute of Arbitrators.

3.4    Change in circumstances

The commitments of the Parties under this Agreement (in particular, clauses  2 and 3) are intended to provide long-term benefits for the Parties, even if the law or circumstances change over time. Without any limitation:

3.4.1    the commitments continue even if, for some reason at some time in the future, any of the Parties obtain further rights or interests or new rights or interests are given to any of the Parties (for example, by future legislation), in relation to the ILUA Area; and

3.4.2    if the Parties obtain further or new rights or interests in relation to the ILUA Area that, if exercised, might hinder or impede the rights of any other Party, the Parties agree to exercise those rights in a way that is consistent with this Agreement.

…

10.    THIRD PARTY ACCESS TO AND ACTIVITIES ON THE MINING LEASES

10.1    Towns upon ML7024

The Native Title Parties and the Communities acknowledge that the following activities may be conducted on any part of any ML7024 Town for purposes of or incidental to a town:

10.1.1    residential, commercial, industrial, municipal, airport, road, transportation, social, tourist, sporting, recreational, health, educational, charitable, community and other similar purposes; and

10.1.2    activities typically conducted by or for residents, and their invitees, of similar sized towns elsewhere in Queensland.

10.2    Infrastructure

10.2.1    The Communities agree to public use of the following infrastructure within the Mining Leases:

10.2.1.1    roads intended for public use, aerodromes, airports, bridges and other transport related infrastructure in existence as at the date of this Agreement, which (for the avoidance of doubt) includes the Weipa-Mapoon Road, the Weipa-Coen Road (where it joins the Peninsula Development Road at the boundary of ML7024), the Weipa-Aurukun Road and the Weipa Aerodrome; and

10.2.1.2    any infrastructure of the kind referred to in clause 10.2.1 established upon any of the Mining Leases in the future.

10.2.2        Comalco will consult with the Co-ordinating Committee and the Co-ordinating Committee or its authorised representative must consult with the relevant Traditional Owner Groups about any proposal by it to establish infrastructure of the kind referred to in clause 10.2.1.

10.3    Permit System

10.3.1    The Parties acknowledge the existence of the permit system for access by tourists and residents of ML7024 Towns for sporting, recreational, community or similar purposes to parts of the ILUA Area, compiled by Comalco with the assistance of the Aurukun Shire Council, Napranum Aboriginal Council, Marpuna Corporation (now Mapoon Aboriginal Council), Alspac and the Weipa Citizens Advisory Committee. The Co-ordinating Committee will review the Permit System as soon as practicable but in any event within 6 months of the Commencement Date.

10.3.2    Comalco will, to the extent it is reasonably able to do so, assist the Communities to implement the Permit System.

10.3.3    Comalco will not authorise the establishment or use of any camp site for sporting, recreational, community or similar purposes on the Mining Leases other than those camp sites governed by the Permit System, without the consent of the Co-ordinating Committee. The consent of the Co-ordinating Committee may only be given after it has consulted with the Traditional Owner Groups who are traditional owners of the land on which the camp site is to be established or used.

10.3.4    The Permit System may be amended by the Co-ordinating Committee from time to time, provided the amendment has been consented to by the relevant Traditional Owner Groups and each of the relevant Councils and, to the extent it applies to the ILUA Area, Comalco. Such consent by Comalco will not be unreasonably withheld having regard to the Comalco Interests and Comalco Activities.

10.3.5    Comalco will not (other than for safety or in an emergency) authorise, under the Permit System, the discharge of firearms or the lighting of campfires.

10.3.6    The Permit System, its operation and any obligations of Comalco in relation to the Permit System, are subject to any rights of access or use or any right to carry out activities authorised by the operation of clauses 2.3.9, 10.1, 10.2 and 10.4 or the principles referred to in them.

10.3.7    The Co-ordinating Committee and Comalco may agree on the roads within the Mining Leases that are not to be used by the public as contemplated under clause 10.2.1 but which are to be subject to the Permit System eg tracks or roads to Outstations or Significant Aboriginal Sites or areas that have been surrendered from the Mining Leases in accordance with clauses 5.1 or 5.2.

…

10.5    Avoidance of doubt

For the avoidance of doubt:

10.5.1    nothing in this clause 10 affects any Parties' rights elsewhere in this Agreement; and

10.5.2    the Parties acknowledge that Comalco cannot control any use a third party might make of any part of the Mining Leases if that third party's right to enter or be upon the land, use or occupy it or erect any buildings or structures or make any other improvements is lawfully authorised, independently of Comalco, for example:

10.5.2.1    by or under the Mineral Resources Act 1989, any other statute relating to mining or any other law; or

10.5.2.2    under any permission given by the Minister for access across ML7024 pursuant to clause 56(a) of the Comalco Agreement.

…

19    BENEFITS PROVIDED BY COMALCO AND QUEENSLAND

19.1    No other Benefits

19.1.1    The benefits provided by Comalco and Queensland under this Agreement are in full satisfaction of:

19.1.1.1    any and all payments or benefits that may be or may have been, payable or provided, and any other right, under any laws (including common law, equity or statute) about the enjoyment by Comalco (or any Associate) of the Comalco Interests, or the performance of the Comalco Activities; and

19.1.1.2    any claims, under any laws (including common law, equity or statute), that may be made by any native title holders, or any person on their behalf, against Queensland, Comalco, or its predecessors in title, or any person acquiring property from Comalco, on the basis of any derogation of their rights or interests in relation to the land the subject of the Comalco Interests or the effect of the performance of the Comalco Activities.

19.1.2    Clause 19.1.1 includes amounts that might otherwise have been, or become, payable under the NTA, Native Title (Queensland) Act 1993 (Qld), Racial Discrimination Act 1975 (Cth), the Aboriginal Land Act 1991 (Qld), the Mineral Resources Act 1989 (Qld), the Acquisition of Land Act 1967 (Qld), any other relevant legislation and any new legal principles established from time to time (including by the decisions of any court or tribunal).

19.1.3    The Communities and each member of the Communities and CYLC release Queensland, Comalco and its Related Bodies Corporate from any Claim in relation to the Comalco Interests or the performance of the Comalco Activities.

19.2    Protection of Benefits

If any person, other than the members of the Communities who are bound by this Agreement:

19.2.1    is able to establish that they have native title rights or interests in relation to any part of the ILUA Area and, as a result, is entitled to payment or provision of benefits or compensation from Queensland or Comalco (whichever is relevant) (directly or indirectly) under any law (including common law, equity or statute) including any payment for interference with such rights or interests; or

19.2.2    they are entitled to damages against Queensland or Comalco (whichever is relevant) on the basis of any derogation of the rights or interests of a native title holder,

Queensland or Comalco (whichever is relevant) may elect to suspend (in whole or in part) its obligation to make the payments or contributions under this Agreement until the amount that would have been paid but for the suspension is equivalent to any such payment, contribution, provision of benefits or damages and its costs in defending any action by the person asserting those rights or interests.

19.3    Benefits to Possible Native Title Holders

In addition to the benefits which Comalco has agreed to make available under other provisions of this Agreement, CYLC acknowledges the receipt of the sum of $1.00 paid by Comalco and $1.00 paid by Queensland on the Commencement Date which is to be held in trust by CYLC on behalf of all Possible Native Title Holders.

…

ATTACHMENT 1

ILUA AREA (Clause 1.1 of Agreement)

The map showing the ILUA Area follows the ILUA Area description below. To the extent of any inconsistency, the written description prevails over the area indicated on the map.

ILUA AREA DESCRIPTION

The ILUA Area is comprised of the following areas:

1.    all land and waters within the ML 6024 Area and the ML 7024 Area but subject to the removal of particular areas from the ILUA Area from time to time as specifically provided in this Agreement;

2.    the land and waters of Albatross Bay and the rivers and creeks running into it (below the high water mark) from the Territorial Sea Baseline of Albatross Bay eastward to the most easterly of:

(a)    the coastline;

(b)    the western boundary of ML 7024;

(c)    the north-western boundary of ML 6024;

(d)    in the Mission River, longitude 141° 59' 30.5”,

but excluding any areas within the Shire of Aurukun as shown on Plan SC 211;

3.    the land and waters of Port Musgrave and the rivers and creeks running into it (below the high water mark) from the Territorial Sea Baseline of Port Musgrave easterly along the Ducie River to the boundary of ML 7024 and southerly along the Wenlock River to the boundary of ML 7024;

4.    the land and waters within the Weipa Township boundary irrespective of whether the land and waters are also within ML 7024;

5.    the following lots outside of the Weipa Township boundary which have been surrendered from ML 7024 but which are generally located within the area defined by the outer boundaries of the ML 7024 Area:

(a)    Lot 342 on MP 36486;

(b)    Lot 22 on MP 32268;

(c)    Lot 15 on SP 116851 (WP 7);

(d)    Lot 29 on SP 116854 (WP 18);

(e)    Lot 17 on SP 116853 (WP 12);

(f)    Lot 2 on MP 26144 (WP 6);

(g)    Lot 25 on MP 26155 (WP 15);

(h)    Lot 37 on MP 30227 (WP 23);

(i)    Lot 39 on MP 30554 (WP 26); and

(j)    Lot 30 on MP 30144 (WP 21); and

6.    ILUA Area B which is the land and waters extending 3 nautical miles from the coastline or the Territorial Sea Baseline as applicable between:

(a)    latitudes 12° 54' 23.0” South and 11° 57' 24.2” South (between Port Musgrave and Cullen Point);

(b)    latitudes 12° 34' 26.2” South and 13° 11' 28.3” South (between Duyfken Point and Ina Creek); and

(c)    latitudes 11° 13' 35.3” South and 11° 18' 24.8” South (off the Vrilya Point Area),

irrespective of whether the land and waters are also within ML 7024.

ILUA AREA MAP

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    In 2014, the Court made orders determining 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: Woosup on behalf of the Northern Cape York #1 Native Title Claim Group v State of Queensland [2014] FCA 1148 (NCY #1).

2    The Ankamuthi People are today asking the Court to make orders under s 87 of the Native Title Act 1993 (Cth) (“the Act”) that will determine their native title rights and interests in their country in the northern part of Cape York Peninsula.

3    Almost 20 years ago, on 29 October 1997, the Ankamuthi People lodged three separate applications with the National Native Title Tribunal. By order of the Court on 21 July 1999, the three applications were combined to become application QUD 6158 of 1998 on behalf of the Ankamuthi People #1. The combined application has been amended on three occasions and the current application is brought, on behalf of the native title claim group, by Charles Woosup, George Mamoose, Michael Toby, Asai Pablo, Tracey Ludwick, Ella Hart (Deemal), Nelson Stephen, Ben Tamwoy, Catherine Salee and Mark Gebadi.

4    The original claim area included land within the Mapoon Deed of Grant in Trust which has been subdivided and transferred to the Old Mapoon Aboriginal Corporation under the Aboriginal Land Act 1991 (Qld) as Aboriginal Freehold land. Additional lots were removed from the original claim area and those lots have become the subject of the application for recognition of native title rights and interests brought by the four applicants on behalf of the Northern Cape York Group #3 claim group which is to be determined contemporaneously with this application.

5    The parties to application QUD 6158 of 1998 have agreed that Lots 6 to 13 (inclusive) on SP 204113 and part of Lot 8 on SP 252492 (being the part north of the Ducie River) comprise DOGIT land held by the Old Mapoon Aboriginal Corporation. These lots are listed in Part 1 of Schedule 1 of the proposed orders. The Determination Area is properly described in Schedule 1 to each of the orders.

6    The Ankamuthi People #2 application (QUD 392 of 2014) filed on 29 July 2014 is brought by Larry Woosup, Beverley Mamoose (formerly known as Beverley Tamwoy), Richard Woosup, Charles Woosup, George Mamoose, Michael Toby, Asai Pablo, Tracey Ludwick, Ella Hart (Deemal), Nelson Stephen, Ben Tamwoy, Catherine Salee and Mark Gebadi on behalf of the Ankamuthi People #2 over land and waters described in Schedule B of the amended application (Form 1, native title determination application filed on 11 December 2014).

7    The native title claim group the subject of application QUD 6158 of 1998 and QUD 392 of 2014 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 in each application.

8    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.

9    Both applications remain on the Register of Native Title Claims. They have been notified in accordance with s 66 of the Act.

10    The parties who remain respondents to the Ankamuthi People #1 application (QUD 6158 of 1998) are the State of Queensland, Cook Shire Council, Old Mapoon Aboriginal Corporation, Ergon Energy Corporation Limited, Alcan South Pacific Pty Ltd, RTA Weipa Pty Ltd, Rio Tinto Aluminium Limited (formerly known as Comalco Aluminium Limited), and the Queensland Seafood Industry Association.

11    The respondents to the Ankamuthi People #2 application (QUD 392 of 2014) are the State of Queensland, Alcan South Pacific Pty Ltd and RTA Weipa Pty Ltd.

12    The original Ankamuthi application has been on foot since 1997.

13    However, since the filing of the Ankamuthi People #2 application in July 2014, the parties have made substantial progress in resolving the many difficult intra-indigenous issues that have arisen over time, and which, unfortunately, have proved difficult to resolve. I want to recognise the tireless efforts of the solicitor for the applicant, Mr John Reeve, whose efforts have been largely responsible for bringing about this result. I also acknowledge the conscientious and co-operative approach taken by the parties in the course of intensive case management processes since 2015 to resolve the outstanding issues. It is unfortunate that earlier delays, caused primarily by intra-mural conflicts, have prevented the earlier recognition of the claimants’ native title rights and interests. Many important elders are not now with us to see the determination of the native title rights and interests of the people, today.

14    On 22 June 2017, the parties filed an agreement in each application (that is in each of QUD 6158 of 1998 and QUD 392 of 2014) under s 87 of the Act seeking the orders to be made today.

15    I am satisfied that the proposed orders, consistent with the terms of the s 87 Agreement in each application, are within power and that it is appropriate to make orders in and consistent with those terms without holding a hearing: see s 87(1)(a), (b) and (c); s 87(1A) and s 87(2).

16    Although, in my view, it is not necessary for the claimant group to file a substantial body of evidence of the kind that would otherwise be required in the determination of the merits of a claim at trial, it is, in my view, necessary for the Court to be satisfied that the terms of the s 87 Agreement are, as former Chief Justice French has observed, “rooted to reality”: Native Title – A Constitutional Shift?, University of Melbourne Law School, JD Lecture Series, French CJ, 24 March 2009; Kerindun v Queensland (2009) 258 ALR 306 at [16]; Kuuku Ya’u People v State of Queensland [2009] FCA 679 at [12]–[15].

17    The question of whether the terms of the agreement are rooted in reality simply requires some material to be before the Court upon which it can act in reaching the statutory state of satisfaction as to the appropriateness of the making of the orders. Of course, a substantial body of anthropological evidence is before the Court.

18    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.

19    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 at [75] and [76], Gleeson CJ, Gummow and Hayne JJ.

20    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).

21    As noted in the first paragraph of the reasons today, the two applications by the Ankamuthi People closely inter-relate with an earlier determination of native title made by the Court in 2014. In determining that matter and the two applications before the Court today, I have had close regard to the following reports exhibited to the affidavits of Dr Anthony Redmond filed in the NCY #1 proceeding on 1 September 2014:

•    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 QUD157/11 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.

22    Dr Redmond, in an affidavit filed in the Ankamuthi People #1 proceeding on 14 March 2017, has deposed to a meeting of the claim group which he attended at Injinoo on 15 May 2015 at which authorisation was given by the claim group to alter both the composition of the applicant and the claim group. Persons identifying as Ankamuthi People had earlier contested the entitlement of the indigenous respondents to the application to participate, and the changes have resolved that dispute within the broader community.

23    In Ankamuthi People #2 (QUD 392 of 2014), a similar affidavit was filed on 14 March 2017 in which Dr Redmond deposed to an authorisation meeting of the claim group which he attended at Injinoo on 19 March 2014 where amendments to the application were authorised so as to reduce the claim area and authorisation was given to the filing of an amended application.

24    I have had the benefit of reading the applicant’s submissions in support of each application filed on 28 June 2017 which attach, as a Schedule, the comprehensive submissions filed in the two earlier determinations.

25    In the material I previously considered in relation to the orders made in the determination, Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 (“NCY #2”), I made the following observations on the evidence presented to the Court in the context of that matter:

[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”.

26    In NCY #1, I observed that it is important to 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.

27    I again refer to [39] in the Connection Report where Dr Redmond identifies the Angkamuthi Seven Rivers group as the descendants of people whose traditional homelands include places located in the lower catchments of the western coastal rivers of Northern Cape York which is collectively known as the Seven Rivers, an area which includes parts of the catchments of the Jardine River, Crystal Creek, Doughboy River, McDonald River, Jackson River, Skardon River and Ducie/Dulhunty River).

28    At [41]-[42] of the Connection Report, Dr Redmond refers to research undertaken by Dr Natalie Kwok and Derek Elias in relation to the kin relationships in the Northern Cape York communities. Mr Elias listed the following families as having a well-accepted association with Ankamuthi country:

Woosup (and by extension some members bearing the following surnames: Billy, Solomon, Stephen, McDonnell, Tamwoy). Their apical ancestors are said to have been Woobumu and Inmare.

The Toby and Mamoose family (and by extension some members bearing the following surnames Tamwoy, Stephen). Their apical ancestors are said to have been Jack Toby and Charlie Mamoose.

The Ropeyarn family (by extension some members bearing the following surnames: Sallee, Hobson, Bowie). The apical ancestors for this group are James Ropeyarn whose mother was either Lily Woosup who bore him out of wedlock, or a sister or cousin to Lily who adopted him, and an Angkamuthi woman who passed away which resulted in Ropeyarn’s adoption by Lily.

The Sagiba and Deemal families. The apical ancestor is said to have been a man named Charlie and his two wives, Lily and Lizzie.

Asai and Gibson (and by extension some members bearing the following surnames: Pablo, Mooka and Pascoe). The apical ancestor is Charlie Asai.

29    In NCY #2, I noted Dr Redmond’s conclusion that, in his opinion, the data “all point towards the existence of a single regional society uniting the NCY #1 and #2 claimant groups under a shared body of laws and customs” [emphasis added], in respect of which he wrote:

My field research with contemporary claimants in the NCY #1 claim, in conjunction with my study of the research materials pertaining to the NCY #2 claim, strongly indicate that a continuing observance and acknowledgement of the traditional laws and customs of the region continues to unite the peoples of both the NCY #1 and #2 claim areas within a single society. This contemporary social unity is entirely congruent with my findings regarding the [Northern Cape York Peninsula] regional society at the time of sovereignty.

30    In Dr Redmond’s view, effective sovereignty coincided with the establishment of the first permanent European presence with the arrival of the Jardines at Somerset in 1864 and he 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.

31    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.

32    In the reasons in NCY #2 referred to above, reference was 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.

33    The rights and interests that are recognised in the orders I make today are derived from the traditional laws and customs and their adaptation 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.

34    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 included is an aggregate of the earlier maps and is striking because of the broad commonality of areas associated with those laws and customs.

35    Dr Redmond comments on this particular map at para 192(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.

36    In terms of the contemporary situation, the Ankamuthi native title claim group, who are also members of the NCY #1 native title holding group, continue to be part of that wider regional society.

37    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.

38    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.

39    The Ankamuthi claim group, as part 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 from members of the claim group he has obtained 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.

40    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 as follows.

41    As to the land and waters of the Ankamuthi People #1 application (QUD 6158 of 1998), Part 1 of Schedule 1 describes areas of land and waters otherwise known as the “Exclusive Areas” of exercise of the native title rights and interests by reference to Lots on particular Plans and Map Sheet Numbers. 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. In relation to Water, the rights and interests are, 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, all for cultural, personal, domestic and communal purposes. “Water” has the definition attributed to it as set out in Order 17 of the orders published today in application QUD 6158 of 1998.

42    As to the land and waters in Part 2 of Schedule 1 in the Ankamuthi People #1 application, 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;

(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.

43    As to the land and waters described in Part 1 of Schedule 1 in the Ankamuthi People #2 application (QUD 392 of 2014), the native title rights and interests are those rights and interests that relate to Water. They are 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, all for cultural, personal, domestic and communal purposes. As to the definition of “Water” see Order 15 of the orders made in application QUD 392 of 2014.

44    The native title rights and interests so described, for the purposes of each application made by the Ankamuthi People, 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.

45    The applicant has resolved that the native title rights and interests are to be held in trust by the Seven Rivers Aboriginal Corporation (ICN 8522) as 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 Seven Rivers 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 Charles Thomas Woosup filed 16 May 2017, that the Seven Rivers Aboriginal Corporation is nominated as the prescribed body corporate to be the trustee of the native title determined in these proceeding. The determinations 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.

46    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.

47    The orders made today in each application made by the Ankamuthi People, give recognition within the Australian legal system to the native title rights and interests of the claim group described as the Ankamuthi People in relation to the Determination Areas, borne out of traditions honoured and customs practiced by the ancestors of the claimants and observed and practiced by their descendants continuously over time as described in the report of Dr Redmond having regard to the detailed anthropological record of Aboriginal peoples and their engagement with the land and waters of the Determination Areas.

48    The Court now publishes the orders comprising the determination.

Associate:

Dated: 26 July 2017

SCHEDULE OF PARTIES

1.     The “right to negotiate” procedures are set out in subdivision P, division 3 of part 2 of the NTA.

2.     This is the subdivision which provides the “right to negotiate” procedures of the NTA.