FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464

ORDERS

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 87A of the Native Title Act 1993 (Cth).

THE COURT NOTES THAT:

1.    The Applicant agrees that the areas listed in Schedule 5 are areas where native title has been wholly extinguished.

THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms proposed in these orders, despite any actual or arguable defect in the authorisation of the applicant to seek and agree to a consent determination pursuant to s 87A of the Native Title Act 1993 (Cth).

BY CONSENT THE COURT ORDERS THAT:

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

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

2.    The determination area is the land and waters described in Schedule 4 and depicted in the maps attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

3.    Native title exists in the Determination Area.

4.    The native title is held by the Kuuku Ya’u People described in Schedule 1 (the Native Title Holders).

5.    Subject to orders 7, 8 and 9 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 4 are:

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

(b)    in relation to Water, the non-exclusive right to take the Water of the area for personal, domestic and non-commercial communal purposes.

6.    Subject to orders 7, 8 and 9 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 4 are the non-exclusive rights to:

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

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

(c)    hunt, fish and gather on the land and waters of the area;

(d)    take the Natural Resources from the land and waters of the area;

(e)    take the Water of the area for personal, domestic and non-commercial communal purposes;

(f)    be buried and to bury Native Title Holders within the area;

(g)    maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs on the area and protect those places and areas from harm;

(h)    teach on the area the physical and spiritual attributes of the area and the traditional laws and customs of the Native Title Holders to other Native Title Holders or persons otherwise entitled to access the area;

(i)    hold meetings on the area;

(j)    conduct ceremonies 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 of Native Title Holders;

(ii)    people who are members of the immediate family of a Spouse 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.

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

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

(b)    the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

8.    The native title rights and interests referred to in orders 5(b) and 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

9.    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).

10.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2.

11.    The relationship between the native title rights and interests described in orders 5 and 6 and the other interests described in Schedule 2 (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 rights and interests continue to exist in their 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.

THE COURT DETERMINES THAT:

1.    The native title is held in trust.

2.    The Kaapay Kuuyun Aboriginal Corporation (ICN: 9607), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

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

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

SCHEDULE 1 – NATIVE TITLE HOLDERS

(1)    The Native Title Holders are the Kuuku Ya’u People. The Kuuku Ya’u People are those Aboriginal persons who are descended by birth, or by adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Kuuku Ya’u group, from one or more of the following apical ancestors:

(a)    Johnny Doctor and Nancy (Tawamulu);

(b)    Charlie Kanora;

(c)    Charlie James (Flathead) Pascoe;

(d)    Billy Yatuma;

(e)    Hughie Temple;

(f)    Annie Anderson;

(g)    Topsy (wife of John George Hollingsworth);

(h)    Charlie Claudie Snr;

(i)    Mother of Billy Wenlock (Ukunchal);

(j)    Barney Claudie;

(k)    Annie Butcher;

(l)    Bob Pascoe and Dick Turku (aka Dick Yennan) (siblings);

(m)    Puunchukuupi (Frank Anderson);

(n)    William Clark Snr (aka Willie Doctor); or

(o)    Ma’a Chingal (Charlie Bamboo).

SCHEDULE 2 – 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 parties under the following agreements registered on the Register of Indigenous Land Use Agreements:

(a)    QI2008/029 – Portland Roads ILUA, registered on 19 October 2009; and

(b)    QI2011/049 – Iron Range, Portland Roads and Islands ILUA registered on 6 February 2012.

(2)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(a)    as the owner or operator of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d)    under any lease, licence, access agreement, permit or easement relating to its telecommunications facilities in the Determination Area.

(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 an electricity entity under the Electricity Act 1994 (Qld), including but not limited to:

(i)    as the holder of a distribution authority;

(ii)    to inspect, maintain and manage any Works in the Determination Area;

(iii)    in relation to any agreement or consent relating to the Determination Area existing or entered into before the date these orders are made; and

(c)    to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this clause.

(4)    The rights and interests of Cook Shire Council:

(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 the area declared to be its Local Government Area:

(b)    as the:

(i)    lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;

(ii)    grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not;

(iii)    party to an agreement with a third party which relates to land or waters in the Determination Area;

(iv)    holder of any estate or any other interest in land, including as trustee of any Reserves, under access agreements and easements that exist in the Determination Area;

(c)    as the owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to any:

(i)    undedicated but constructed roads except for those not operated by the council;

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 4(a), (b) and (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred on in this paragraph 4 and paragraph 7 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 4(c) above; and

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

(5)    The rights and interests of Far North Queensland Ports Corporation Limited (trading as Ports North) ACN 131 836 014 as the port authority for the Port of Quintell Beach and provider of port services under Chapter 8 of the Transport Infrastructure Act 1994 (Qld) and under the Transport Infrastructure (Ports) Regulation 2016 (Qld), including its functions and powers:

(a)    to establish, manage and operate effective and efficient port facilities and port services;

(b)    to make land available for the establishment, management and operation of effective and efficient port facilities and services in its ports by other persons or other purposes consistent with the operation of its ports;

(c)    to keep appropriate levels of safety and security in the provision and operation of its port facilities and services;

(d)    to provide other services incidental to the performance of its other functions or likely to enhance the usage of its ports;

(e)    to perform any other functions conferred on it under the Transport Infrastructure Act 1994 (Qld) or another Act or under the regulation;

(f)    to provide or arrange for the provision of ancillary services or works necessary or convenient for the effective and efficient operation of its ports;

(g)    to provide port services relating to the establishment, operation and administration of its ports including pilotage services, dredging services, services relating to the reclamation of land and ancillary services to the provision of port services;

(h)    to dredge and otherwise maintain or improve navigational channels of its ports and to reduce or remove a shoal, bank or accumulation in its ports that, in the port authority’s opinion, impedes navigation in its ports;

(i)    to impose a charge for the use of port areas, for example a charge imposed by reference to a ship using its ports, or goods or passengers loaded, unloaded or transhipped from ships using port facilities;

(j)    controlling activities in its port areas by issuing port notices and granting port approvals; and

(k)    requesting information from vessels entering its port areas.

(6)    The rights and interests of the Australian Maritime Safety Authority (the Authority) as the owner, manager, or operator of aids to navigation pursuant to s 190 of the Navigation Act 2012 (Cth) and in performing the functions of the Authority under s 6(1) of the Australian Maritime Safety Act 1990 (Cth) including to be a national marine safety regulator, to combat pollution in the marine environment and to provide a search and rescue service.

(7)    The rights and interests of the State of Queensland, Lockhart River Aboriginal Shire Council and Cook Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.

(8)    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

(9)    The rights and interests of the Northern Kuuku Ya’u Kathanampu Aboriginal Corporation RNTBC Land Trust as trustee of Lot 46 on SP241418 pursuant to Deed of Grant 40062416 under the Aboriginal Land Act 1991 (Qld).

(10)    The rights and interests of the Kuuku Ya’u Aboriginal Corporation RNTBC (ICN 7193), formerly the Northern Kuuku Ya’u Kanthanampu Aboriginal Corporation RNTBC, as trustee of Lot 2 on SP241427 pursuant to Deed pf Grant 40066437 under the Aboriginal Land Act 1991 (Qld).

(11)    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

(a)    the Fisheries Act 1994 (Qld);

(b)    the Land Act 1994 (Qld);

(c)    the Nature Conservation Act 1992 (Qld);

(d)    the Forestry Act 1959 (Qld);

(e)    the Water Act 2000 (Qld);

(f)    the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld);

(g)    the Mineral Resources Act 1989 (Qld);

(h)    the Planning Act 2016 (Qld);

(i)    the Transport Infrastructure Act 1994 (Qld); and

(j)    the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).

(12)    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.

(13)    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 rights of the public to access and enjoy the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    coastal waters;

(d)    stock routes;

(e)    beaches; and

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

(14)    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 3 – EXTERNAL BOUNDARY

The area of land and waters:

Exclusions

Any area covered by native title determination QUD6016/1998 Kuuku Ya'u (QC1999/038) made on 25 June 2009.

(All Subject to Survey).

Data Reference and source

Cadastral data sourced from Department of Resources, Qld (May 2021).

Watercourse lines sourced from Department of Resources, Qld (May 2021).

Mountain ranges, beaches and sea passages sourced from Department of Resources, Qld (May 2021).

Native title determination outcomes sourced from the National Native Title Tribunal (April 2021)

Road 250K Geodata (Series 3) sourced from Geoscience Australia (2021)

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees.

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Prepared by Department of Resources (25 May 2021).

SCHEDULE 4 – DESCRIPTION OF DETERMINATION AREA

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Part 1 — Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the determination map contained in Schedule 6:

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

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the determination map contained in Schedule 6:

SCHEDULE 5 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

(1)    Those land and waters within the External Boundary in relation to which one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) was done and was attributable to either the Commonwealth or the State, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

(2)    Specifically, and to avoid any doubt, the land and waters described in (1) above includes:

(a)    the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, including, but not limited to the whole of the land and waters described as:

(b)    the land and 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 to which 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), including, but not limited to, the whole of the land and waters described as:

(3)    Those land and waters within the External Boundary that were excluded from the native title determination application filed on 11 December 2014 on the basis that, at the time of the native title determination application, they were an area where native title rights and interests had been wholly extinguished, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, including, but not limited to:

(a)    any area where there had been an unqualified grant of estate in fee simple which wholly extinguished native title rights and interests; and

(b)    any area over which there was an existing dedicated public road which wholly extinguished native title rights and interests.

(4)    Specifically, and to avoid any doubt, the land and waters described in (3) above includes:

(5)    Those land and waters within the External Boundary on which, at the time the native title determination application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

SCHEDULE 6 – MAP OF DETERMINATION AREA

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    The parties have sought a determination of native title under s 87A of the Native Title Act 1993 (Cth), with associated orders, recognising the native title of the Kuuku Ya’u People. This determination is being made on the same day as a determination recognising the native title of the Uutaalnganu (Night Island) People.

2    Much of the Kuuku Ya’u and Uutaalnganu (Night Island) determination areas is freehold Aboriginal land under the Aboriginal Land Act 1991 (Qld) and is therefore held by land trusts under that Act. Most of the balance of the determination areas is subject to a deed of grant in trust for the benefit of Aboriginal peoples granted under the now repealed Land Act 1962 (Qld), held by the Lockhart River Aboriginal Shire Council. That is why it is agreed that s 47A of the Native Title Act applies to a large proportion of the determination areas.

3    The orders made today recognising the native title held by the Kuuku Ya’u and Uutaalnganu (Night Island) Peoples deserve the description of a landmark. The making of these orders, and the orders made today in the Uutaalnganu Determination, are the first successful outcomes of a process which has taken almost 7 years, since the Cape York United #1 claim was filed with the Court. The Cape York United #1 claim was an ambitious attempt to resolve all outstanding native title claims in Cape York. Save for some specified types of tenure which were excluded, the claim covers all land and waters within the external boundaries of the Cape York Representative Aboriginal/Torres Strait Islander Body Area, an area of approximately 79,421 square kilometres. It is the largest filed claimant application area wholly within Queensland. The orders are the culmination of a tremendous amount of work by a large number of people towards the resolution of native title claims and the recognition of native title across all areas of Cape York in which the existence of native title remains to be determined. These orders are the important first achievements in this process, and go some way towards repaying the patience and persistence of the Kuuku Ya’u and Uutaalnganu (Night Island) Peoples.

4    The recognition given by the Court’s orders today concerns matters which are central to people’s lives. Mr Gregory Omeenyo describes how he feels about his country in his witness statement filed as part of the connection material supporting the Kuuku Ya’u determination:

When I go to my country, Puul’au country, it feels strong and proper in my heart. The country out there, that is where my attachment is. When I die, I think my spirit will go back to there, because I feel like that it is where I belong.

5    The Court’s orders, and the long overdue recognition by Australian law, will help protect and preserve the country of the Kuuku Ya’u People so that this deep connection can also be protected and preserved.

6    For the reasons set out below, the Court is satisfied it is appropriate to make the orders sought, and that it is within the power of the Court to do so. These reasons should also be read together with the reasons of the Court in this proceeding given orally on 23 November 2021, and subsequently published.

THE MATERIAL BEFORE THE COURT

7    The application for consent determination was supported by a principal set of submissions filed on behalf of the applicant on 22 October 2021. Supplementary submissions were filed on 28 October 2021. The State filed comprehensive submissions on 12 November 2021. The Court has been greatly assisted by the parties’ submissions.

8    The applicant relied on the affidavit of Kirstin Donlevy Malyon. Ms Malyon, who is the Principal Legal Officer at the Cape York Land Council (CYLC) and has had the carriage of the Cape York United #1 claim, deposed to how the Kuuku Ya’u s 87A Agreement was approved, and to how the Kaapay Kuuyun Aboriginal Corporation (ICN 9607) was nominated as the prescribed body corporate (PBC) for the Kuuku Ya’u Determination. Ms Malyon also annexed the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area.

9    The applicant also filed and relied upon an affidavit of Parkinson Wirrick, a legal officer with the CYLC, affirmed 22 October 2021. Mr Wirrick annexes to his affidavit a bundle of connection material in relation to both the Uutaalnganu (Night Island) Determination and the Kuuku Ya’u Determination. In relation to the latter, that material comprised:

(a)    the witness statement of Father Brian Claudie dated 22 February 2019 and filed on 22 October 2021;

(b)    the apical report of Ms Kate Waters dated 12 June 2020 regarding Bob Pascoe and Dick (Turku) (aka Dick Yennan) and filed on 22 October 2021;

(c)    the apical report of Ms Waters dated 12 June 2020 regarding Billy Claudie and filed on 22 October 2021;

(d)    the apical report of Ms Waters dated 15 January 2021 regarding Ma’achingal (Charlie Bamboo) and filed on 22 October 2021;

(e)    the apical report of Ms Waters dated 15 January 2021 regarding Puunchukuupi (Frank Anderson) and filed on 22 October 2021;

(f)    the apical report of Ms Waters dated 9 April 2021 regarding William Clark Snr and filed on 22 October 2021;

(g)    the apical report of Ms Waters dated 16 April 2021 regarding Billy Wenlock (Ukunchal) and filed on 22 October 2021; and

(h)    the witness statement of Mr Gregory Omeenyo dated 22 February 2019.

10    The applicant filed, and relied upon, a second affidavit from Mr Wirrick, affirmed 26 October 2021, annexing two further documents in relation to both the Uutaalnganu (Night Island) Determination and the Kuuku Ya’u Determination:

(a)    a report from Dr David Thompson entitled ‘Response to State Questions’ dated 4 March 2019; and

(b)    a witness statement of Mr G Butcher, which was undated.

11    In addition, in relation to both the Uutaalnganu (Night Island) Determination and the Kuuku Ya’u Determination, the applicant had previously filed connection material on which it sought to rely for the purposes of the s 87A application:

(a)    the expert report of Dr Thompson entitled “Lockhart River Coastal Region” filed on 31 October 2017;

(b)    the amended expert report of Ms Waters dated 5 March 2018 and filed on 6 March 2018;

(c)    the supplementary expert report of Dr Thompson dated 4 March 2019 and filed on 22 October 2021; and

(d)    the affidavit of Mr G Butcher dated 9 December 2019 and filed on 6 March 2020.

THE CHANGE IN APPROACH IN THE CAPE YORK UNITED #1 CLAIM

12    It is appropriate to recount something of the history of the Cape York United #1 claim since it was filed in December 2014. The claim has been subject to intensive case management by the Court since its inception, but especially in the last few years, after a substantial change in approach that occurred around April 2020. It is important to take account of this history, and the change in approach, to understand why the Court considers it appropriate to exercise its discretion under s 84D(4) of the Native Title Act to hear and determine the two s 87A applications, despite any arguable defect in authorisation.

13    From its early days, given its size and complexity, the claim was divided for the purposes of connection assessment and case management into nine “report areas”, the report areas being based on a geographical distribution of connection assessment work between a number of anthropologists. The report areas were initially, and indeed until recently for the Uutaalnganu (Night Island) Determination and the Kuuku Ya’u Determination areas, described by reference to the names of the anthropologists who wrote the corresponding connection reports. Thus, the Uutaalnganu (Night Island) Determination and the Kuuku Ya’u Determination areas were within the “Thompson report area”, Dr David Thompson being the anthropologist retained by the CYLC to work on the connection assessments for these areas.

14    In the first half of 2018, the applicant was directed to file a Statement of Issues, Facts and Contentions, and the State was directed to file a response. From these documents emerged a critical issue about whether, as a matter of fact, the whole of the Cape York United #1 claim group was a single society and, if so, whether the members of that society together possessed a single native title for the purposes of s 225(a) of the Native Title Act: see generally Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; 276 FCR 203 at [25]-[34]. The applicant and the State adopted different positions on this issue. Close case management continued, and the State filed a very detailed document in July 2019 in respect of all the nine report areas, setting out the facts it considered were open to the Court to find were established if the materials provided to the State to that date were to be tendered. Understandably, for some report areas, the connection materials were not as advanced and far less was able to be confirmed, or agreed, by the State than what could be confirmed or agreed for other areas. It also became apparent that the “society issue” might be a major impediment to any consent determination process moving forward.

15    Therefore, in September 2019, the Court made orders setting down for hearing separate questions to identify the native title holding group or groups with respect to a “test area”, which included the Thompson report area. Programming orders were made, and it was clear the hearing, even if confined to the test area, was going to take many months and be extremely expensive and resource intensive. Sensibly and fortunately, an alternative course was agreed upon as between the State and the applicant.

16    This alternative course was based on the parties’ acknowledgment that across the Cape York United #1 claim area, there were different groups that held different native titles within the Cape York United #1 claim area, including in the test area. In April 2020, the Court made orders vacating the separate question hearing and providing workplans to progress, sequentially, the native title claims within each of the nine report areas towards consent determination. As the State has made clear in its submissions, that agreed course does not, yet, mean that there will be consent determinations over all areas within the Cape York United #1 claim. There are still some areas for which the State has not accepted connection. But the change in course, towards sequential determinations by consent covering areas of land and waters to which particular groups are accepted to have a connection and otherwise meet the requirements of s 223 of the Native Title Act, was a welcome, constructive and positive development. The applicant and the State are to be congratulated on being able to change course like this and to embark upon a cooperative resolution of the claim.

17    That said, progress to date on this approach has not been without its challenges, including in the two areas set down for consent determination today. But progress has been made, and today is a landmark event.

18    From April 2020, the parties moved to a time- and resource-intensive process which involved, progressively through the nine report areas, the applicant proposing to the State what it contended were the relevant native title holding groups, the composition of those groups, and their geographic extent. This is what Ms Malyon describes in her affidavit as the Boundary Identification Negotiation and Mediation process. The BINM process had two stages. First, a desktop stage, in which the applicant would put forward proposals based on the ethnographic evidence already produced for the proceeding, and the State would respond. Second, a fieldwork stage involving consultation with the relevant peoples. Ms Malyon’s evidence discloses that considerable efforts by employees of the CYLC were made in this latter stage, to try to ensure the right people were contacted and spoken to.

19    Importantly for today’s orders, this was the process undertaken for the Uutaalnganu (Night Island) and Kuuku Ya’u claim groups. As a result of this process, and after consultation with and decision making by the respective claim groups, the State and the applicant agreed that these groups held their respective separate and distinct native titles, and also agreed the composition of both groups, and the boundaries of their country.

AUTHORISATION

The Kuuku Ya’u s 87A agreement

20    Ms Malyon deposes to what I consider to be a methodical process undertaken by the CYLC with the Kuuku Ya’u and Uutaalnganu (Night Island) native title groups to notify group members of the meetings to authorise the s 87A agreements. There was some postponement of the meetings due to sorry business, and the location was moved from Lockhart River to Cairns for this reason: Malyon Affidavit at [33]. Kuuku Ya’u group members were notified of the new meeting by email, text message and phone call: Malyon Affidavit at [36].

21    There was one area – called Wattle Hills – which was excluded from the amended meeting notice because of a potential dispute within the Kuuku Ya’u group: Malyon Affidavit at [37]-[38]. As a result, the map on the meeting notice had to be changed from its original form: see Malyon Affidavit at [38]. At [39] of her affidavit, Ms Malyon deposes that:

At the Kuuku Ya’u Authorisation Meeting, CYLC employees and consultants provided the Kuuku Ya’u Native Title Group with an explanation of the difference between the map in the original notification notice for the Kuuku Ya’u Authorisation Meeting and that in the amended notice. That explanation included a description of the agreement between the Kuuku Ya’u Native Title Group and their neighbouring groups about their respective boundaries, which was reflected on the correct map in the original notice. The mapping contained in the draft s.87A agreement to be considered by the Kuuku Ya’u Authorisation Meeting is consistent with that in the original notice. To my knowledge, CYLC has received no contact (whether by phone calls, emails or correspondence) from members of a group neighbouring Kuuku Ya’u in respect of either the original notice or the amended notice.

22    Pre-engagement meetings were held from 23 to 30 August 2021, and from 6 to 13 September 2021, both face to face and by telephone. At [40], Ms Malyon deposes:

CYLC provided assistance to members of the Kuuku Ya’u Native Title Group to travel to Cairns by air or road, and for their accommodation in Cairns. Attendance at the Kuuku Ya’u Authorisation Meeting by video conferencing facilities at a convenient location in Lockhart River was also made available by CYLC.

23    Ms Malyon then deposes to how the meeting was conducted. From her evidence I am satisfied it was properly conducted. One of the items dealt with at this meeting was the proposal for a new and different PBC to hold the native title for this Kuuku Ya’u determination. I return to this issue below.

24    Like many authorisation processes within native title groups, not everyone may agree with the outcome. Native title outcomes for consent determination do not depend on every single claim group member agreeing. They depend on either the use of a traditional decision making process if one exists, or (as is usually the case) if one does not, on a decision making process being agreed and adopted and a decision being made in accordance with that agreed process. Once decisions are taken, unless there is a legal problem with those decisions, the decisions made at these meetings are the decisions the Court will rely upon in making orders recognising native title. Finality is an important value in the Australian legal system and that is especially so where property rights such as native title are concerned. Disputes must be resolved. In native title, the meeting processes which lead to authorisation of claims, agreements and determinations are designed to do that.

25    I accept that in the unusual circumstances of the Cape York United #1 claim, and its change of course, the BINM process which Ms Malyon describes, and the several stages in the authorisation of the s 87A agreement for each native title holding group, assume more prominence. The BINM process can be described as a “grass roots mediation process” even if members of the claim groups have a variety of opinions about whether it was a good or bad process.

26    The BINM process was localised in nature. A range of steps was taken to ensure wide public notification through a variety of media, including social media. People were invited to attend in person, or using remote technology. Until a week or so before these determinations, the Court was not notified of any formal objections to the authorisation process or to the form and contents of the proposed determinations.

27    However, on 15 November 2021, the Court received an interlocutory application to join the Kuuku Ya’u Aboriginal Corporation RNTBC and an interlocutory application to join two individuals – a descendant of the Kuuku Ya’u People and a descendant of the Uutaalnganu (Night Island) People – as respondents to the Cape York United #1 claim. The applications were made on the basis of complaints concerning apical ancestors for the Kuuku Ya’u and Uutaalnganu (Night Island) groups, disputes about at least one boundary for the Kuuku Ya’u claim, disputes about the correct PBC for the Kuuku Ya’u determination, and allegedly inadequate communication from the CYLC in relation to the determinations. Complaints were also made about the s 87A authorisation process and the adequacy of travel assistance to claim group members.

28    In oral reasons delivered on 23 November 2021, after a hearing on 22 November 2021, the Court dismissed these applications and ordered that the consent determination hearings proceed.

29    These are objections from within the Kuuku Ya’u and Uutaalnganu (Night Island) groups, not from their neighbours. The absence of any formal objections from neighbouring groups provides a sufficient basis for the Court to infer that the area proposed to be recognised as Kuuku Ya’u is appropriate and accepted by the Kuuku Ya’u People’s neighbours.

Amendments to the authorisation of the Cape York United #1 applicant

30    The changes in the course of the proceeding which I have described above had another consequence. That was the need to go back to the various native title holding groups to amend the authorisation of the Cape York United #1 claim applicant as it was initially given.

31    The original authorisation of the applicant is in evidence, included in annexure KDM-8 to Ms Malyon’s affidavit. At page 43 of the affidavit, under the heading “Limitations on the authority of the Applicant”, the following statement relevantly appears:

the Applicant has no authority to make any decision:

(i)    to approve any consent determination in the proposed Claim[.]

32    Thus, the adopted course of sequential s 87A agreements and consent determinations was not a process the applicant was authorised to undertake. A new authorisation was required. This in itself was a huge task – notifying, co-ordinating and conducting a series of meetings across the Cape York United #1 claim area, and outside it (e.g. in Cairns). There were information meetings held across Cape York, and then the authorisation meetings themselves. All meetings were publicly notified through a variety of media, including social media, emails and telephone calls, and in-person communications. People were invited to attend in person or by remote technology. Organisations such as the registered native title bodies corporate, Aboriginal Corporations and Land Trusts under the Aboriginal Land Act 1991 (Qld), and the 6 Aboriginal Shire Councils within Cape York were also emailed notifications to put up on noticeboards and distribute. Ms Malyon deposes (at [25]):

I attended, either in person or by video-conferencing, 12 out of 16 of the Authorisation Meetings. David Yarrow of counsel attended, either in person or by video-conferencing, 14 out of 16 of these meetings. At each of the meetings that I did not attend, a Legal Officer employed by CYLC attended the meeting. The meetings were also attended by other CYLC staff, including staff from the Community Relations and Dispute Resolution Unit, the Anthropology Unit, consultant anthropologists and administrative staff.

33    As to the outcome of the meetings, Ms Malyon deposes (at [29]-[30]):

A total of 165 people voted for the proposed resolutions, no people voted against them, and 3 people abstained. A copy of these resolutions is annexed hereto and marked “KDM-8”. The resolutions are the same as those contained in the Applicant’s re-authorisation workplan filed on 16 March 2021.

At two meetings (Hopevale and Pormpuraaw) no vote was taken on the resolutions by the persons present, as no motion was moved to adopt the resolutions. A total of 15 people attended these 2 meetings.

34    The applicant submits that, although the two meetings at Hopevale and Pormpuraaw did not make or pass any resolutions, this did not impact upon the effectiveness of the resolutions as a whole. I accept that submission, which is supported by detailed reasoning in the State’s submissions (at [30]-[32]) that need not be repeated here, but which I find is persuasive, and correct.

35    The new authorised limits on the authority of the applicant are set out in the new authorisation Resolutions 4.1 and 4.2:

4.1    The authority of the Applicant is limited as follows:

(a)    the Applicant has no authority to make any decisions (including decisions about land use, management or protection) about particular land or waters within the proposed Claim Area – decisions in respect of those matters are to be made by the persons who hold or may hold native title in relation to the particular land or waters;

(b)    the Applicant has no authority to make any decision to approve any consent determination in the Claim (whether it deals with the whole of the claim area, is otherwise made in full settlement of the CYU#1 Claim or at all) other than as set out in Resolution 4.2;

(c)    the applicant has no authority to change the solicitor for the Applicant in the Claim;

(d)    decisions in respect of the matters in paragraph (b) and (c) are to be made by the Native Title Claim Group; and

(e)    the Applicant’s authority is otherwise confined to matters arising under the Native Title Act in relation to the Claim.

4.2    It is a condition of the Applicant’s authorisation that the Applicant must not fail to agree to a proposed agreement under s 87 A of the NTA for a determination to be made in relation to part of the Claim Area (s 87 A agreement) if, and only if, the following conditions are satisfied:

(a)    a draft of the proposed s 87 A agreement has been prepared by the Applicant and the State of Queensland;

(b)    the Applicant, with the assistance of CYLC, has notified each group of persons described in the draft s 87 A agreement as the persons who will be determined to hold native title in the area to which that particulars 87A agreement is intended to apply (the “proposed native title holders”) of the date and location of a meeting (or meetings) for each group of proposed native title holders to consider the draft s 87 A agreement;

(c)    at each meeting of a group of proposed native title holders, the Applicant, with the assistance of CYLC, has explained the meaning and effect of the draft s 87A agreement;

(d)    at each meeting of a group of proposed native title holders, a resolution is passed that the proposed native title holders as a group agree to the draft s 87 A agreement; and

(e)    the resolutions referred to in (d) are passed following a process of decision making chosen by each group of proposed native title holders.

36    For the reasons set out by the applicant and the State in their submissions, the Court finds the applicant’s agreement to the Kuuku Ya’u and Uutaalnganu (Night Island) consent determinations falls within the scope of the authority given to it by the re-authorisation process.

37    The Court recognises the size of the task that faced the CYLC and its staff, as well as the applicant’s legal representatives in this re-authorisation process. The task was performed as methodically and diligently as could reasonably be expected. It was performed under challenging restrictions and risks due to the COVID-19 pandemic, and the Court takes account of this. Again, that is not to say it was perfectly done. Perfection is not the standard. I am satisfied reasonable and appropriate efforts were made to notify claim group members, to provide them with information and to give them reasonable opportunities to attend the relevant meetings and information sessions, to voice their opinions and contribute to the decision making process.

Section 84D

38    Notwithstanding the Court’s satisfaction that the amendments to the authorisation of the applicant occurred through an appropriate process, there remain two potential difficulties. The first stems from differences in the claim group descriptions between the original claim and the proposed determinations. The second stems from the fact the State has not yet accepted connection over all areas within the Cape York United #1 claim area.

Claim group descriptions

39    The native title claim group for the Cape York United #1 application is defined in the Form 1 originating application by reference to named apical ancestors, which is one of the most common methods of defining a native title holding group. Both the Kuuku Ya’u and the Uutaalnganu (Night Island) s 87A agreements and proposed determinations contain descriptions of native title holders which include apical ancestors not contained in the Form 1 originating application.

40    As I explained in Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 at [109], differences of this kind between an initial application under s 61 of the Native Title Act and a proposed determination of native title are “wholly commonplace”. That is because, after a native title application is lodged, as further inquiries are made of claim group members, and as further research is carried out, factual matters about the ancestors of the claim group may become clearer, or change. That is to be expected when what is being examined are the generational histories of families which have often been torn apart and violated by European settlers, where social structures have been misunderstood and countless individuals have been re-named and misnamed by foreigners who did not wish to learn, or deal with, their real names and identities.

41    Yet, as the issues raised in Smirke (No 3) illustrate, and by reason of decisions of this Court, in particular the Full Court decision in Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355, the wholly commonplace occurrence of changes in apical ancestors is capable of being construed as introducing an impediment to the making of a determination of native title by the Court, even by consent. On one reading, Clifton stands for the proposition that there must be absolute identity between the claim group as defined at the time the s 61 application was authorised, and the claim group as defined at the time of determination of native title. That is, the claim group definition can contain no new or different apical ancestors, because new or different apical ancestors would change the composition of the claim group and result in a differently composed group from the one which authorised the s 61 application.

42    In Smirke (No 3), I found that Clifton should not be read so literally. With respect, in the State’s submissions on the Kuuku Ya’u and Uutaalnganu (Night Island) determinations, the reasoning is well summarised:

The most recent (and, with respect, comprehensive) consideration of this issue is found in the decision of Smirke on behalf of the Jurruru People v State of Western Australia (No 3) (Smirke). In that case, Mortimer J was required to determine whether the Court has jurisdiction to make a determination that native title exists and is held by a particular group that includes persons who did not authorise the application for the determination in question. Although Smirke involved a determination made in a litigated context, much of her Honour’s analysis is applicable to consent determinations. In particular, Mortimer J’s holding that the Court has jurisdiction and power to make a determination of native title that differs substantially from the terms of an application made under s 61(1) of the NTA — with no need for either re-authorisation of the application or express authorisation of the determination ahead of it being made — applies to both a determination made after trial and a consent determination under ss 87 and 87A of the NTA (although in the latter case, specific authorisation of the proposed determination may be necessary to persuade the Court that it is appropriate to make such a determination). Importantly, the path of reasoning followed in Smirke included the following salient points:

(a)    When the holding in Clifton is read in context, it is clear that the Full Court’s focus was on a situation where two competing groups claim the same land and waters but only one group had made an application under s 61. The “critical” procedure was the making of a s 61 application, without which a group could not secure a determination in their favour.

(b)    The Full Court (at [37]) expressly qualified its holding, by outlining the kinds of disputes that are “an inherent aspect” of the determination of a s 61 application, the resolution of which may lead to a determination of native title by the Court departing from the terms of an authorised s 61 application. These are disputes: (a) as to the true membership of a native title claim group; (b) concerning the boundaries of the area over which the claim group holds native title; or (c) as to the nature and extent of the native title, rights and interests held by the claim group.

(c)    There was no suggestion by the Court in Clifton that s 213 is to be read literally. The provision operates on the whole of the procedures in the NTA, which includes s 84D(4). Further, the holding in Clifton cannot be read literally, because (bold added):

If it were to be, it would be incompatible with all the kinds of circumstances to which the Full Court referred at [37], each of which would fall foul of a literal reading of this passage. For example, where an application by a group includes descendants of 5 apical ancestors and those people authorise a claim, but a determination is proposed in respect of 7 apical ancestors, the “particular group” in whose favour the determination is proposed is not the same “particular group” as the one who authorised the claim. Yet this is a wholly commonplace occurrence, in terms of difference between group members as identified in an application, and group membership as identified in a determination.

(d)    The fact that neither the Court nor participating parties have ever seen any difficulty in making a determination of native title under s 87 or s 87A where the proposed determination differs substantially from the terms of the s 61 application, confirms that Clifton should be understood in the way explained above. What is critical, and fundamental, is that there must be an initiating process, authorised, by which a claim group seeks a determination of native title. The NTA then gives considerable flexibility to the Court and to the parties to shape the content of the ultimate determination of native title, provided compliance with s 94A and s 225 occurs.

(Citations omitted.)

43    The applicant seeks an order pursuant to s 84D(4) in its submissions. On the analysis extracted above, the State submits (at [25]) that the inclusion of additional apical ancestors in the proposed Kuuku Ya’u and Uutaalnganu (Night Island) consent determinations does not give rise to a defect in authorisation.

44    While I tend to agree with the State’s submissions, I consider that the validity of these consent determinations, as the first of what is hoped to be a large number of consent determinations to follow within the Cape York United #1 claim, should not be attended by any doubt. Therefore, out of an abundance of caution, I propose to make an order under s 84D(4) in each of the Kuuku Ya’u and Uutaalnganu (Night Island) consent determinations.

No acceptance of connection over the whole Cape York United #1 claim area

45    In its submissions, the State points to a further potential difficulty in the Court accepting that both determinations have as their source properly authorised claims for native title. This difficulty is also related to the change of course I have discussed above. A consequence of that change of course was that, while the regional Cape York United #1 claim was authorised by the Cape York United #1 claim group as a whole, the s 87A agreements for the Kuuku Ya’u and Uutaalnganu (Night Island) consent determination areas were authorised only by the Kuuku Ya’u and Uutaalnganu (Night Island) groups. And, so far, the State has not accepted connection in relation to all remaining areas of the Cape York United #1 claim, so it cannot be unequivocally stated that all members of the Cape York United #1 claim group, as described in the s 61 application, are “native title holders”. The fulfilment of that statement must await further agreement on connection in other areas within the Cape York United #1 claim area.

46    There is a line of authority in this Court which has been taken to stand for the proposition that all persons who actually hold the native title must authorise the making of the claim: see Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1188]-[1190] (Lindgren J); Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1 at [913] (Finn J); Ashwin (on behalf of the Wutha People) v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 at [181] (Bromberg J). In other words, the group as defined after investigations have occurred, and after conclusions are reached, about who are the right people for country. Or to put it another way, it is the group as identified at the end of a process – which may have been a process of many, many years, that must be the group which authorised the claim. If there are changes to the claim group description as a result of evidence from lay witnesses or expert opinion, or both, then an outcome of this nature is unlikely to be achievable. In Smirke (No 3), I explained what an unsatisfactory and potentially unjust approach to the Native Title Act this was, and not one which was required by the legislative scheme in the Native Title Act, read as whole.

47    The State is, with respect, correct in its submissions at [27] to describe my view as being that that the accepted construction of s 61 must be understood as tolerating a level of difference between the actual holders of native title and the members of the claim group who initially authorised the claim, where the difference is due to the kinds of matters that the Full Court in Clifton accepted are part and parcel of any determination of a s 61 application, such as the “true membership” of the native title claim group.

48    Therefore, where the descriptions of the native title holders in the proposed Kuuku Ya’u and Uutaalnganu (Night Island) determinations vary from the descriptions in the Cape York United #1 application under s 61, a level of difference can be tolerated, and differences of that kind do not undermine the core processes and requirements of the Native Title Act. That is because what is occurring in these determination areas is that smaller group configurations are being identified generally from within the larger claim group, and most of the native title holders for those smaller group configurations will be members of the group which authorised the Cape York United #1 claim in 2014. As the State submits, there may be minor discrepancies because of the more detailed evidence and research concerning apical ancestors, but these are the kinds of differences the native title application process is designed to sort through – they are the “true membership” kinds of issues.

49    However, as with the first question about whether the determinations are being made in relation to a native title application that has been authorised in accordance with the Native Title Act, out of an abundance of caution I propose to make an order under s 84D(4) in each of the Kuuku Ya’u and Uutaalnganu (Night Island) determinations.

50    It is plainly in the interests of the administration of justice to do so, in circumstances where the overall Cape York United #1 claim is gargantuan, and has already consumed seven years’ worth of resources, mostly sourced from public funds. Substantial, dedicated and methodical efforts have been made to comply with the requirements of the Native Title Act in each step along the way to these first two determinations. Despite significant factual and legal challenges, the two key parties have navigated a consensual path to the recognition of native title for the Kuuku Ya’u and Uutaalnganu (Night Island) groups. All other respondents have been consulted and given opportunities to participate in the process as it has progressed. They have been included in steps in the complex timetables. All consent to the Kuuku Ya’u and Uutaalnganu (Night Island) determinations. If ever there was a situation in the Court’s native title jurisdiction where a favourable exercise of discretion by the Court is appropriate to ensure resolution of a claim to which all parties agree, this is that situation.

THE CONNECTION OF THE KUUKU YA’U NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM

51    The Kuuku Ya’u People have had two previous determinations of native title in their favour. The present determination area is south of the 2015 Kuuku Ya’u Determination (jointly held with the Wuthathi and Northern Kaanju People), and south-west of the 2009 Kuuku Ya’u Determination.

52    Dr David Thompson has worked with the peoples of this region for a very long time. In the introductory sections to his 2017 report, he states that the report draws upon anthropological, linguistic and historical research undertaken by him, and by other researchers, over the past 47 years in the Lockhart River region, including the research undertaken by Professor Athol Chase in the 1970s, which led to Chase’s PhD thesis in 1980. Plainly, all this work pre-dated the Native Title Act.

53    In his 2017 report, Dr Thompson describes the territories and what he calls the “vital society” of four language-named groups of the Lockhart River Coastal region: the Wuthathi, Kuuku Ya’u, Uutaalnganu (“Night Island”) and Umpila peoples. He explains (at [20]) that:

These four language-named groups also form a wider coastal socio-cultural grouping called variously Pama Malngkanichi “sandbeach people”, Pama Pakaychi “down-below people” or Pama Kawaychi “eastern people” to distinguish them from their inland neighbours.

54    Dr Thompson describes the territory of the Kuuku Ya’u People in this way (at [43]):

Research by Professor Chase and myself with elders and neighbouring groups in the 1970s (including mapping trips in 1971, 1977) and since 1995 has established that the Kuuku Ya’u group of claimants identify themselves, and are identified by other Aboriginal people of the north-eastern and north-central Cape York Peninsula region, as the group of people whose native title rights and interests under Aboriginal law and custom are to that area of land associated with the Kuuku Ya’u language and which lies on the east coast from the Lockhart River mouth northward to the region of Bolt Head/Olive River in Shelburne Bay where they share a boundary area with the Wuthathi people, and southwards to the Lockhart River. Their coastal lands extend inland across the coastal lowlands to a boundary area with the Northern Kaanju, and eastwards to include the seas, reefs and islands as far as the main Barrier Reef. The inland boundary between Kuuku Ya’u and Northern Kaanju groups are not fully resolved and require further detailed negotiations between them.

55    Drawing on the early research of Donald Thomson, whom he describes as the “first person to undertake extensive field-based anthropological research with the people of the region from an anthropological perspective”, Dr Thompson explains the way Kuuku Ya’u (and several other groups in the area) conceive of their relationship to the past, to law in the past and to how country was shaped (at [224]-[225]):

As I would expect among Aboriginal people who recognise themselves as a distinctive society with their own particular system of law and custom, the Umpila, Uutaalnganu, Kuuku Ya’u and Wuthathi have a number of distinctive views of their ancestors and their society in the times before European arrival, and indeed, about the creation of their society, culture and their geographic territory.

Their creation myths continue to centre mainly on the activities of the crocodile ancestor Iiwayi. Iiwayi and his family left Northern Kaanju country and travelled with his family by canoe through Kuuku Ya’u country, then travelling northwards through Wuthathi territory. See Thomson’s account of the mythological origins of Kuuku Ya’u people in paragraph 195 above. I am aware from my involvement with the joint initiatory ceremonies held at Lockhart River in the 1970’s and since, that this general mythic view is shared by the other language-named groups and the saga of Iiwayi is complemented by similar mythic stories among the other groups.

56    Dr Thompson continues (at [227]-[230]):

Chase reported from his fieldwork in the 1970s that Lockhart people conceived of their past as a series of eras. Beyond puulakuma (father’s father’s time) lay anthanama, or “long time before” but still in the human era. This was also referred to as antha yi’atyi (“middle ages”). Beyond that, at the far limits of time lies yilamu, or the mythic creation period. The “Story Places” are visible evidence of this period[ ] (Chase 1980:89). This ancestral view is clearly a continuity of the mythological origins recorded from Kuuku Ya’u and Umpila people in 1928-9. See paragraphs 195-197 above.

In the Tribunal hearings for the Iron Range National Park ALA Claim in 1997, evidence was taken from Kuuku Ya’u people relating to the ancestral handing down of “law”. Jerry Pascoe (a senior Kuuku Ya’u elder and Bora leader, deceased) (Aboriginal Land Tribunal 1997 Tr 1/8/97:9) says: “The law is still here … The bora (initiation ceremony) is too. You got Government law. We got bora law. … It’s not my law, it’s old people’s law. … I got to listen to black man law too, through my ancestors to now.”

Again, from Jerry Pascoe: “So that’s how this crocodile been a very special person (in creation time), to make this bora, so we understand from church side and I understand from the bora side through this same crocodile. So we got this bora culture still going” (Aboriginal Land Tribunal 1997 Tr. 1/8/97:3).

And (referring to getting sick from doing the “wrong thing” when an initiate), Jerry says:

“We (the ceremony elders) have to give you underarm smell then you can do what you like. So that’s how this alligator got that strong, powerful, law, rules, and everything like that” (Aboriginal Land Tribunal Tr. 1/8/97:6).

(Footnotes omitted.)

57    It is not possible to extract all of the deep and wide research contained in Dr Thompson’s 2017 report, but it is to be hoped that it will prove a valuable resource for the peoples of the Lockhart River Coastal region into the future.

58    Dr Thompson’s more recent work, in response to questions from the State, covers two matters of significance to both the Uutaalnganu (Night Island) determination and the Kuuku Ya’u determination: namely, boundary identification and accurate identification of apical ancestors.

59    One of the matters which has proved challenging, and is likely to continue to prove challenging, is the identification of boundaries between the country of one group and another. While this is a requirement for recognition of native title, the need to draw “hard” boundary lines is one of the features of the Australian native title system which has some disconformities with how rights to country are understood and observed in the traditional law and customs of the groups such as those within the Cape York#1 claim. It is a challenge not specific to that region.

60    As Dr Thompson explains at [3]-[6] in his response to State questions:

Inland boundaries of the coastal Kuuku Ya’u, Uutaalnganu and Umpila peoples are those areas of country where these groups adjoin the country of their inland neighbours, namely Southern Kaanju and Northern Kaanju, and to a lesser extent, Wuthathi and Lamalama. Whereas coastal points are more readily identified as rivers, creeks or other geographic features through greater coastal dwelling and gathering of coastal resources, inland areas are less accessible along the rugged hinterland of this region. While mountain ranges, watersheds and creeks may be general boundaries, it is not so simple to draw a line on a map. Many rugged inland areas are not readily accessible as I explain below and it has not been feasible for neighbouring groups to identify continuous boundary lines in every place. Peter Sutton has expressed the situation well for the tropical north.

There are different degrees of boundedness about the edges of even a single Aboriginal estate in the tropical north, where such things have been mapped on the ground in fine detail. It is quite typical for there to be fine and clear demarcation of the edge of an estate at points along a beach or river frontage, where one creek entering the water body is in one estate, and a creek a few score metres away is in the next estate; or where mangrove stands, for example, mark the point where the beachfront sector of an estate comes to an end. Country abundant in vine thickets and permanent lakes may also have rather precise estate boundaries along the edges of rich floodplains and ridges. ....

The very same estates, however, may have their hinterland stretching back into a set of watercourses arising in hills or in relatively monotonous sclerophyll forest uplands, where the watercourses are the bones or structural definers of the insides of estates, but where the edges of estates are heavily blurred. Between these smallish drainage systems (frequently sub-systems) are the intermediate zones usually defined ‘company’ land held by those who hold the adjacent drainage systems (1995:51).

In regard to Sutton’s reference to ‘company land’, Chase refers to them as ‘countryman groups’ that shared [“]a common area as a homeland in the days before European influence.”

These origin localities are said to consist of a number of estates which are “boxed up”. The agglomeration includes a set of estate groups who, in precontact times, formed “one camp” or a community throughout the year at a focal camping site (Chase 1980:219).

In pre-Mission and early Mission periods, Aboriginal people walked long distances through both coastal and inland regions, interacting with neighbouring clan groups, often socially by marriage ties (Chase 1980:176) or having a holiday in another’s country such as between inland bush and the coast. Examples occur in my report at [359], [362], [373], [408], and the accounts in Appendix 5: 5.4.1 and 5.4.2. This travel was customarily by established walking tracks while it is likely that rugged or impenetrable country was much less accessed if at all.

Mapping of much inland country in this east coast region is an arduous task due to difficult terrain while the boundary points that have been identified are in accessible places such as Browns Creek on the main Road from Wenlock to Lockhart River and in relation to pastoral lease country such as in the Bromley claim or in general terms such as a range or watershed. It has not been very practical or even necessary for detailed consultations and inland mapping expeditions to be undertaken in recent times. With those caveats in mind, I can roughly indicate boundary regions as requested but the principle remains that in practice there are no gaps between neighbouring groups, whether clear or not, and any indication of boundaries are subject to further consultation and agreements between the neighbouring groups concerned. Adjoining areas may be implicit, perhaps disputed, but never abandoned as there are always successors to take responsibility for country that becomes vacant of descendants. (See Chase 1980:221-222).

61    To take but one example from Dr Thompson’s later responsive report, which illustrates the careful work over many years to confirm boundary agreement between neighbouring groups that was underway well before the Cape York United #1 claim was even filed, at [12] Dr Thompson states:

In about 1996, I travelled west along the Coen-Portland Roads road with two elders representing Kuuku Ya’u and Northern Kaanju (Jerry Pascoe and Leslie Cooper) to identify a boundary point between the two neighbouring groups. They identified the region of Browns Creek and the road called Frenchman’s Road (an alternate route to Weipa) a little to the west of it and leading to the northwest. In later years, other elders from the Kanthanampu subgroup (Ronald Giblet) and Kungkay subgroup (Beverley Pascoe) of Kuuku Ya’u have confirmed these markers and then continuing up the Kennedy Road and Garraway Creek to the Pascoe River and along it to the junction of Hann Creek as above.

62    Ms Malyon also describes in her affidavit (at [75]) the step-by-step consultation process to reach agreement on boundaries:

A preliminary map which reflected the putative boundary for the Kuuku Ya’u Native Title Group and the State’s response to this boundary was provided to members of the Kuuku Ya’u Native Title Group at its initial meetings for the BINM Process. The consultant anthropologist Dr Thompson was available to discuss the anthropological research that informed the putative boundary description, and members of the Kuuku Ya’u Native Title Group were provided with the opportunity to discuss the map, to ask questions of Dr Thompson and to confirm agreement, suggest changes or identify areas for further research and/or consultations. Proposed changes were recorded and reflected on new maps prepared for final boundary resolution meetings.

63    Ms Malyon deposes (at [77]) to four boundary meetings that occurred throughout 2021. Three of these involved the Kuuku Ya’u group, with some of their neighbours. Ms Malyon’s evidence is (at [78]-[80]):

Boundary Meetings were attended by persons with ancestral connections to, and specific knowledge of country, as well as those who had cultural authority to speak for and make decisions for country. The connection, knowledge and authority of these persons was confirmed by the consultant anthropologist present at each meeting. At each Boundary Meeting, a CYLC Legal Officer explained the BINM Process and how it had progressed to date.

At each Boundary Meeting a CYLC Legal Officer and Anthropologist were present to provide assistance and advice to members of the Native Title Groups. Dr Thompson was also present as the expert anthropologist. Dr Kwok and Mr Winters were present for meetings which involved the neighbouring groups from the Kwok Report Area

During the introductory session for the Boundary Meetings, each consultant anthropologist provided an overview of the available anthropological materials. Anthropological assistance extended to facilitating the participation of appropriate representatives, providing advice and feedback to members of each native title group as to previous anthropological research, communicating the consultants’ understanding of the research materials, assisting in the translation of maps (including the identification of any particular locations, landmarks or cultural sites), and helping to identify family affiliations to particular areas of country through recollection of genealogical data.

64    I accept that evidence.

65    Another matter which has been the subject of close scrutiny by the State before agreeing to the proposed native title determination has been the identification of apical ancestors. I have explained above why in a legal sense that is important. Of course, and more centrally to the nature and purpose of native title, it is critical to how the Kuuku Ya’u People decide membership of their group, and critical to how people conceive of their relationships to country, and to each other. Like many other steps in the complex process of satisfying all the requirements of the Native Title Act, the identification of apical ancestors produces strong emotions and genuinely held different opinions. Since this topic is about people’s families, that is a very human and understandable reaction. It can also be a tremendously difficult subject for Aboriginal peoples, whose families have been torn apart by the policies and practices of European settlement.

66    Ms Malyon explains in her evidence (from [86]) how the CYLC engaged a genealogist, Kate Waters, to provide expert assistance and evidence to resolve and explain some of the differences between the apical ancestors listed on the 2009 and 2015 Kuuku Ya’u determinations, and those proposed for the present determination. Ms Waters’ report is annexed to Ms Malyon’s affidavit. In the introduction, Ms Waters states:

The changes to the Kuuku Ya’u group description are a result of further research and consultation undertaken during the desktop and fieldwork research phase of the CYU#l claim. These changes were proposed by Dr Thompson in consultation with the Kuuku Ya’u native title group, and in consideration of additional research that I have undertaken.

67    The remainder of Ms Waters’ report explains in detail how she reached the conclusions that she did. This material has satisfied the State, and the changes she has recommended were authorised and agreed to by the Kuuku Ya’u claim group members who attended the relevant meetings. In a consent determination, it is not for the Court itself to scrutinise or evaluate this evidence, where the outcomes have been authorised and accepted. To do so would undermine the well-established approach to consent determinations as opposed to litigated claimant applications.

68    Finally, although the Court is not assessing this evidence in the way it would for a contested trial about connection, it would not be right for these reasons to omit some of the evidence of claim group members. It is their accounts and stories, of their lived experiences and those of their elders and ancestors, which provide the foundation for any determination of native title. They live and understand their law and custom, and how it connects them to their country.

69    In terms of evidence from Kuuku Ya’u claimants, I refer to the evidence of Gregory Omeenyo. Mr Omeenyo follows the Kanthanampu country of his father’s father. His mother was Umpila. Dr Thompson explains in his 2017 report that Kanthanampu are southern Kuuku Ya’u people. At [423], Dr Thompson explains:

The present township of Lockhart River is located with the territory of the southern subgroup of Kuuku Ya’u who call their group Kanthanampu. Some elderly people including Peter Pascoe lived at Quintel Beach nearby in the Mission period and, as I witnessed, continued to do so in the period of the New township established in 1969. Hence Kanthanampu people have lived continuously in their country since then and they have ready access to camping, hunting and gathering areas between the Claudie and Lockhart Rivers. The important site of Kutini, cassowary, (Mt Tozer) lies at the southern end of the Kutini-Payamu National Park. During a field trip in 2012, I recorded an additional 17 language-named locations in Kanthanampu country to the south of the national park and south and north of the Lockhart River town.

70    In his statement, Mr Omeenyo describes his country in detail, explaining which families speak for which parts, and describing how knowledge about country is acquired and passed on, how people hunt and gather food, both on land and on sea and how other resources like medicinal plants are used in traditional healing.

71    At [56], he explains what Kuuku Ya’u means but how it is different from country:

Kuuku is another name for language, and Ya’u means ‘around/place’. Kuuku Ya’u is a group of people, like a language group of people, not an area of country. Language is a big thing. Language helps us identify who speaks that language, Kuuku. But the estate, it is your identity, it’s where you belong. The estate; that’s our identity and our story places and our totems. That’s where we belong. I was told this by my grandfather, Toby Accoom.

72    Mr Omeenyo describes how he learned about his country (at [41]-[42] and [52]):

The old people taught me things. When we drove out the old people would tell me about certain trees and plants, as well as story places. We would go down to identify areas where there were existing water wells. Along the way, the old people would explain to me about specific trees and what they are used for. On one of those trips there was myself and Ronald Giblet [deceased]. We drove down towards the Claudie Crossing [J9], on the other side of the airfield. He pointed out certain trees and explained that when they blossom these are the seasons – when the fishes are fat and the turtles are mating. I was about 17 then.

We went out in the boat. We hunted dugong. There are certain techniques for how to cut a dugong that is only for the Mangrove people on the eastern side of Cape York. On one trip, in around 1996, I went out with Noel Accoom, Freddie Claudie and David Claudie. Noel Accoom taught us about those techniques for how to cut a dugong. If you don’t use that technique, next time we go hunting we will not get that meat.

….

I know the boundaries from my elders. My uncles and aunties were the ones with the responsibility to tell us about country and food, such as Lawrence and Abraham Omeenyo. They were the next ones after the grandparents. They told us about our country and the landmarks from when I was a young fella. There are song lines about our country as well. I know these, but they are sensitive song lines under our culture and it is not appropriate for me to talk about that in this statement.

73    At [81], he describes what his rights under his law entitle him to do:

I can go straight in there, to our Storm Bird country. I can go hunting for wallaby and the plain turkey, muntapa, and I don’t need to speak to people before I go there. If there was a stranger who wanted to go there, I would be one of the people who could give permission to go there. People could come and see me to get permission. I speak to other elders, such as Evelyn Omeenyo and Marjorie Accoom before making decisions about that area – also Patricia Pascoe, Evelyn and Marjorie’s younger sister. I talk to the old people around now if I want to take outsiders or people not from here to our country.

74    Also at [99] – [101]:

I know the hills and mountains around our Storm Bird country, which helps me identify story places and hunting spots. Toby Accoom, Rodney and Noel Accoom and Toby Accoom Jnr told me about these places

That’s [ ] all my old people’s country out there at Puul’au. My great, great grandmother, Kitty Accoom, her heath country is out there. It’s a good place to hunt the bustard bird, muntapa, he’s beautiful eating. There’s good food out there at Puul’au. We get sugarbag from a rock out there. The bees nest in the rock and make the honey there. In the timber country, they go in the hollow tree, but out there, there aren’t as many trees, so they use the rocks.

I go to our Storm Bird country whenever I can. The dry time is a good time to go there, when I don’t have work or other commitments. In the wet season, it is hard to travel around because the rivers are high and conditions change quickly. In the afternoons, if it is good weather, my son Smithy Omeenyo, my father in law Patrick Butcher Snr, Wayne Butcher and I go out in the boat and get some fish during the wet time.

75    He also explains how people coming from outside to his country must be treated, and introduced to the country (at [45]):

If you go into another man’s country, the uncles or elders from that side will give you underarm smell. My big uncles, Lawrence Omeenyo and Abraham Omeenyo, put the smell for their country from their underarms on the kids when my kids were babies. This was done from both sides; for Sonia’s [his partner’s] country, Sonia’s uncles did the same. So when our kids come out to Sonia’s country, they don’t need to worry about that. It’s done when they are born. It is custom. I have seen this happen a lot in our community. It is still happening.

76    Mr Omeenyo describes story places, and rule around totems that might be associated with story places (at [217]-[218]):

There is a hill on my country, where the Storm Bird story lives, Puul’au. I know it but cannot say where it is because of the rules under my culture about the location of this story place. At the bottom of the hill is a waterhole that bubbles and flows all the time. Puul’au hid the water from the other birds. The place was in drought so they sent the scout, the white cockatoo, and the assassin, which is the paradise kingfisher. The kingfisher came and hit the bark canoe and all the water spread out then. Kupimbul, that’s the name of the kingfisher. Canoe Creek, out past Brown’s Creek, that’s where Puul’au made his canoe that the kingfisher broke apart. That’s why we call it Canoe Creek.

We don’t eat Puul’au, he’s our totem. Every totem bird has its own significance, so none of the totem birds are eaten. You are not allowed to kill your own totem or you will get sick. If a person that comes under that totem kills their totem they will get sick or, if they don’t, their close family members will. Other families don’t eat Puul’au and the Accoom family don’t eat kutini [cassowary] or pelican or the other totems.

77    These are but some passages from evidence that is rich and full, and provides an ample basis for recognition of native title.

78    In the case of the Kuuku Ya’u group, one further matter about connection and the content of native title rights being recognised should be mentioned. The applicant refers to this in its submissions at [30]-[31].

The Kuuku Ya’u Determination proposes to recognise certain non-exclusive rights and interests which expand upon those recognised in the 2009 Kuuku Ya’u Determination (noting that the 2015 Kuuku Ya’u Determination only recognised exclusive native title rights and interests). Significantly, those expanded rights and interests include (but are not limited to):

(a)    the right to live and camp on the area and for those purposes erect shelters and other structures on the determination area; and

(b)    rights to hunt, fish and gather and the right to take “Natural Resources” which are not limited to non-commercial, cultural, spiritual, personal, domestic or communal purposes.

These expanded rights and interests are supported by the Connection Material. The divergence from the rights and interests recognised in the 2009 Kuuku Ya’u Determination is explained by the availability of evidence to support the recognition of such rights and interests, and the capacity of the Court to recognise them.

79    I accept those submissions. It is clear that considerable further research, and work with claim group members, has been undertaken, and the additional content of native title rights which can now be recognised arises from that further work.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

80    Section 87A applies to an agreement reached “at any stage” of an existing proceeding for a proposed determination of native title in relation to an area (the determination area) that is “part of, but not all of,” the area covered by the native title determination application under s 61 of the Native Title Act.

81    Sub-section 87A(1) requires:

(a)    the existence of a proceeding in relation to an application for a determination of native title;

(b)    after the period specified in a notice given under s 66 of the Act, an agreement in writing for a proposed determination of native title in relation to part, but not all, of the application area;

(c)    that the requisite persons are parties to the agreement; and

(d)    that the terms of the agreement are in writing and signed by, or on behalf of, the requisite persons.

82    Sub-section 87A(2) allows for the parties to file a proposed determination of native title and that has occurred on this application.

83    Sub-sections 87A(4) to (6) provide:

(4)    The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(a)    an order in, or consistent with, the terms of the proposed determination would be within its power; and

(b)    it would be appropriate to do so.

Note:    As the Court’s order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

(5)    Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

(a)    the order would be within its power; and

(b)    it would be appropriate to do so.

(6)    The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

Sub-section 87A(1): pre-requisites

84    As the applicant sets out at [49]-[53] of its submissions, which the State adopts, each of the pre-requisites in s 87A(1) is satisfied; both s 87A agreements have been signed by the requisite persons after appropriate notification.

Sub-section 87A(4)(a): orders within power

85    For the reasons set out at [54]-[59] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

86    The Cape York United #1 application is valid and there is no extant determination of native title in relation to its claim area, or the Kuuku Ya’u and Uutaalnganu determination areas. There are no other proceedings before the Court relating to native title applications that cover any part of the area the subject of the determination that would otherwise require orders to be made under s 67(1) of the Act. I am satisfied that the form of the determinations complies with s 94A and s 225 of the Act and, for the reasons that follow, the requirements of s 87A of the Act are otherwise satisfied.

Sub-section 87A(4)(b): appropriate to make the orders sought

87    I set out my approach to the question of “appropriateness” and the Court’s function in the recent consent determination reasons relating to the Nanda People: see Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56], by reference to earlier authorities. I adopt and apply those observations here. In the Kuuku Ya’u and Uutaalnganu (Night Island) determinations, having case managed the proceeding closely for many years, I am firmly satisfied of the methodical and careful approach to group description, boundary description, connection and tenure that has been adopted by all parties.

88    In Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [63]-[65], I explained the particular importance of the role of the State in the consent determination process. I emphasised that the State’s public responsibility to ensure any agreement made under s 87 or s 87A is one which is in the interests of the community it represents. That community includes the Indigenous peoples of the State, and their particular interest in seeing the objects and purposes of the Native Title Act are achieved, so that the following intentions set out in the preamble to the Act can be acted upon:

The people of Australia intend:

(a)    to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)    to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

89    As I explained in Taylor, the community which the State represents is a broad one and includes non-Indigenous people, some of whom have their own proprietary rights and interests in the determination area, and others who do not but may be affected by the grant of rights in rem. I noted there are also what might be described as governmental and infrastructure interests of a proprietary nature which must be considered and may need to be accommodated, as the complex scheme of the Native Title Act contemplates. The State must weigh all these factors in reaching a position on an agreement for the purposes of s 87 or s 87A.

90    The State has a responsibility to satisfy itself there is a sufficient basis for concluding that the proposed determination is capable of meeting the requirements of s 225 of the Native Title Act. In the case of the Kuuku Ya’u native title group, that process has involved the review of considerable material, both direct evidence from claim group members and expert material, as well as historical source material. The process has been thorough, and careful. Each proposed consent determination will have taken its own particular course, especially on connection material.

91    The State has also actively participated in, and led, the searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the proposed determination areas, and those interests are included in the proposed determinations. The State’s tenure analysis has been circulated to all active respondents, as well as the applicant. All active respondents have been involved in reaching agreement on the identification of other interests, the effect of any extinguishment and the application of ss 47, 47A and 47B of the Native Title Act within the proposed Kuuku Ya’u and Uutaalnganu (Night Island) determination areas.

92    If the State signs a s 87A agreement, and agrees to recognise the existence of native title in the determination area, then the Court is entitled to proceed on the basis that the State has made a reasonable and rational assessment of the material to which it has been given access. The Court will give considerable weight to the position taken by the State, on behalf of all members of its community.

NOMINATION OF A PRESCRIBED BODY CORPORATE

93    A separate PBC has been nominated under s 56 of the Native Title Act for each of the Kuuku Ya’u and Uutaalnganu (Night Island) determination areas. As deposed to by Ms Malyon at [46] and [64] of her affidavit, each PBC was nominated by the native title group concerned, and each PBC has provided its consent to nomination.

94    The Kaapay Kuuyun Aboriginal Corporation is nominated as a new PBC for the Kuuku Ya’u Determination Area. This nomination is made despite the existence of the Kuuku Ya’u Aboriginal Corporation (ICN 7193) (KYAC), which is the existing registered native title body corporate for the 2009 Kuuku Ya’u Determination and the 2015 Kuuku Ya’u Determination. The applicant submits, and the State accepts, that the need for a new PBC arises from the difference between the group description for the Kuuku Ya’u s 87A agreement and that for the previous Kuuku Ya’u determinations. At r 5.2.2 and Schedule 2, the KYAC Rule Book confines membership to adult native title holders under the two existing Kuuku Ya’u determinations. I also rejected a challenge to this outcome in the interlocutory applications for joinder to which I have referred.

95    Section 141-25(2) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) requires that, “if the corporation is a registered native title body corporate, the constitution must include eligibility requirements for membership that provide for all the common law holders of native title to be represented, directly or indirectly” (emphasis added). The KYAC cannot comply with this requirement because of the terms of its Rules. That is why, as the applicant submits, a new PBC had to be nominated. Once nominated in accordance with the Native Title Act, the Court is required to accept that nomination.

CONCLUSION

96    The Cape York United #1 claim has its challenges, and they will continue for the undetermined areas. There are no perfect or ideal outcomes, and compromises are often part and parcel of establishing new legal arrangements. Communities may need to put some of their differences to one side to make the most of the native title rights recognised today, and those rights which have been recognised in the past.

97    The Court acknowledges the dedication of a huge range of people working for the CYLC who have been involved in the determination process, as well as the applicant’s legal representatives, anthropologists, and other expert advisers. The commitment of the State and its officers and legal representatives must also be recognised, as must the role of the other active respondents and their legal representatives.

98    The important role played by National Judicial Registrar Stride, and outside mediators, in assisting the parties throughout the course of the Cape York United #1 claim, and in the processes towards these two determinations, should also be recognised and acknowledged.

99    Every determination that native title exists is important. The recognition given by a determination of native title, for those who have long been denied any recognition by Australian law of their deep and abiding connection to their country, is a step in the struggle of Aboriginal and Torres Strait Islander peoples to regain what was taken away from them, and to make their own choices about how their country and its resources are protected, used and maintained.

Associate:

Dated:    25 November 2021

SCHEDULE OF PARTIES