FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771

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:

A.    Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park area within the External Boundary will be addressed after the matter has proceeded to determination.

B.    The Southern Kaantju People (being the proposed native title holders described in Schedule 1 of the Determination) have indicated a desire to enter into negotiations with the State of Queensland (the State) in relation to whether s 47C of the Native Title Act 1993 (Cth) would have application to the land and waters within the following areas within the Determination Area:

(together, the park areas).

C.    Subject to paragraph D below, the parties agree that, if agreement is reached in accordance with s 47C(1)(b) of the Native Title Act 1993 (Cth) that s 47C is applicable to any of the park areas, the parties would not oppose an application being brought on behalf of the Southern Kaantju Aboriginal Corporation pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to each park area within the Determination Area for which agreement is reached regarding the application of s 47C of the Native Title Act 1993 (Cth).

D.    The agreement of the parties in paragraph C above not to oppose an application being brought to vary the Determination in relation to each park area, is subject to the Applicant and the State having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to the park areas, and any other relevant matters.

E.    The Applicant agrees that the areas listed in Part 1 of 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 proceeding is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

3.    In this Determination, unless the contrary intention appears:

4.    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.

5.    Native title exists in the Determination Area.

6.    The native title is held by the Southern Kaantju People described in Schedule 1 (the Native Title Holders).

7.    Subject to orders 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are:

8.    Subject to orders 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

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

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

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

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

13.    The relationship between the native title rights and interests described in orders 7 and 8 and the Other Interests described in Schedule 2 is that:

THE COURT DETERMINES THAT:

14.    The native title is held in trust.

15.    The Southern Kaantju Aboriginal Corporation (ICN: 9755), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

LIST OF SCHEDULES

1.    The Native Title Holders are the Southern Kaantju People. The Southern Kaantju 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 Southern Kaantju group, from one or more of the following apical ancestors:

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:

2.    The rights and interests of Neville James Shephard under the Land Act 1962 (Qld) as the holder of term lease (0/208116) for pastoral purposes (also known as Lochinvar Station) over that part of Lot 9 on SP211742 which falls within the External Boundary.

3.    The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their successors in title:

4.    The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):

5.    The rights and interests of Cook Shire Council:

6.    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.

7.    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.

8.    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:

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

10.    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:

11.    Any other rights and interests:

Schedule 3 – External Boundary

The area of land and waters:

Commencing at the foothills of the McIlwraith Range on the centreline of an unnamed tributary of Breakfast Creek at Longitude 143.355071° East, Latitude 13.971448° South, also being a point on a line of the 100m contour elevation, and extending generally north-easterly along that contour until Longitude 143.431816° East, Latitude 13.670197° South; then north-westerly in a straight line to a point on a line of the 100m contour elevation at Longitude 143.412112° East, Latitude 13.644275° South; then generally northerly along that contour until Longitude 143.405724° East, Latitude 13.599264° South; then north-easterly in a straight line to a point in the foothills of the McIlwraith Range on the 50m contour at Longitude 143.41033° East, Latitude 13.585909° South; then generally northerly following the 50m contour until the northern boundary of Lot 16 on SP121904, also the northern boundary of the Kulla (McIllwraith Range) National Park (Cape York Peninsula Aboriginal Land) at Longitude 143.385336° East; then north-easterly along the northern boundary of Lot 16 on SP121904 until a point in the foothills of the Macrossan Range on the 50m contour at Longitude 143.477573° East; then generally south-easterly along the 50m contour until a point at Longitude 143.493056° East, Latitude 13.488094° South; then north-easterly in a straight line to the Macrossan Range ridge line at Latitude 13.482002° South; then northerly along the centreline of that range until Latitude 13.382291° South, further described as:

then north-westerly to the summit of Cone Peak at approximately Longitude 143.491676° East, also being a point on the centreline of the Macrossan Range and the western boundary of Lot 17 on SP104551; then north-westerly along the western boundary of Lot 17 on SP104551, also being the Macrossan Range, until a point at Latitude 13.373304° South; then north-westerly and south-westerly bisecting the headwaters of Nesbit River to the intersection with the southern boundary of an unnamed road at Longitude 143.378649° East (Stoney Creek Road), passing through the following coordinate points:

then generally northerly along the centreline of the Great Dividing Range until a point at Latitude 13.210972° South; further described as:

then south-westerly in a straight line to the headwaters of Hull Creek at Longitude 143.297462° East, Latitude 13.220071° South; then generally south-westerly along the centreline that creek to its intersection with the centreline of Geike Creek; then westerly along the centreline of that creek until its intersection with the centreline of Archer River; then westerly along the centreline of that river until its intersection with Baker Creek (also known as 10 Mile Junction); then south-easterly to a site named Muwangam at Longitude 142.842672° East, Latitude 13.668725° South; then south-easterly to the centreline of Coen River at Longitude 142.962519° East; then generally easterly along the centreline of that river until its intersection with an unnamed watercourse at Longitude 143.073713° East, Latitude 13.894552° South; then generally easterly along the centreline of that unnamed watercourse and its southernmost tributary to a point located between two hills at Longitude 143.119514° East, Latitude 13.885423° South; then extending south-easterly to a point at Longitude 143.148743° East, Latitude 13.908909° South and onwards in a straight line south-easterly to the intersection of the centrelines of Coen River and Oscar Creek at Longitude 143.191023° East;

then north-easterly along the centreline of Coen River to the junction of Lankelly Creek at Latitude 13.943344° South; then generally north-easterly along the centreline that creek to its intersection with an unnamed tributary at Longitude 143.230332° East, Latitude 13.933287° South; then south-easterly to the junction of Stewart River and an unnamed tributary at Longitude 143.249894° East, Latitude 13.958650° South; then south westerly to a point on the northern boundary of Lot 2 on SP171865 at Longitude 143.243652° East; then north-easterly then generally southerly along the northern and eastern boundaries of that lot until a point at Latitude 13.988502° South; then easterly to a point at Longitude 143.326494 East, Latitude 13.983444° South; then in a straight line north-easterly back to the point of commencement.

(All Subject to Survey).

Data Reference and source

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

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

Baseline roads and tracks sourced from Department of Resources, Qld (August 2021).

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

Native title determination outcomes sourced from the National Native Title Tribunal (August 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.

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.

Schedule 5 – Areas Not Forming Part of the Determination Area

The following areas of land and waters are excluded from the Determination Area as described in Part 1 of Schedule 4 and Part 2 of Schedule 4.

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 Southern Kaantju People. This determination is being made on the same day as a determination recognising the native title of the Northern Kaanju People, and on the day before determinations recognising the native title of the Lama Lama People and the Ayapathu People. I note that in the materials supplied to the Court there are a variety of spellings for the names of these groups. In these reasons I adopt the spellings used by the Cape York United #1 applicant in its submissions in support of the determinations.

2    There was, until last Friday, some doubt whether this determination would proceed. However last Friday, the Court dismissed an application by Ms Johanne Omeenyo, an Umpila person, to be joined to the proceeding and to stop the consent determination proceeding: see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 5) [2022] FCA 763.

3    Together, these determinations resolve four parts of the Cape York United #1 claim, within a geographic region that has come to be known as the ‘Kwok Report Area’ or the ‘Kwok Timetable Area’, after the anthropologist engaged by the Cape York United #1 applicant to prepare connection material about the area. It is important to note that, by orders made on 8 February 2022, parcels of land in respect of which the parties to the Cape York United #1 proceeding could not reach agreement were excluded from the consent determinations today and tomorrow. For this reason, the determinations do not reflect the entirety of the country claimed by each of the four native title holding groups.

4    Recognising that each of the groups is a distinct native title holding group, with rights and interests under traditional law and custom in the determination area which comprise separate and distinct native titles, the Court makes orders and gives reasons separately for each group.

5    Today’s determination recognises the continuing connection of the Southern Kaantju People to their traditional lands and waters. This recognition can help ensure the connection is maintained over the coming generations, as Allan Francis Creek – a Southern Kaantju elder – speaks about in his witness statement filed with the Court (at [104]-[106]):

Elders have authority under our culture, but it is important to involve the younger ones. Elders should speak to the younger ones about what's going on. I let the younger ones speak up when we get together, to bring everyone's ideas out. Once everyone has had a say and put their ideas forward, then it is up to me to judge which idea I should put to work. The elders are the boss.

I want to see young people come up and be involved in the decisions, because I am not going to be around forever. But they need to come up on the right level and in the right position and all that sort of thing. They do this by listening, learning and understanding.

We need younger ones to be involved so that I can pass on my knowledge and responsibilities. I talk to the younger ones, nephews like James Creek's sons. My adopted son, Dallas Harold is going with his mother's line Ayapathu. My country may one day go to my sister's family.

6    The Court’s orders, and the long overdue recognition by Australian law, will help preserve the country of the Southern Kaantju People and protect their deep connection to it. The determination should give confidence to Southern Kaantju elders to pass down their rules and knowledge about country to future generations in circumstances where their rights to this country are recognised by Australian law.

7    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.

THE MATERIAL BEFORE THE COURT

8    The application for consent determination was supported by a principal set of submissions filed on behalf of the applicant on 2 June 2022. The State filed submissions on 10 June 2022. The Court has been greatly assisted by the parties’ submissions.

9    The applicant relied on an affidavit of Kirstin Donlevy Malyon, filed on 2 June 2022 (the Malyon 2022 affidavit), and a further affidavit of Ms Malyon filed on 21 June 2022. Ms Malyon has been the Principal Legal Officer at the Cape York Land Council (CYLC) and has had the carriage of the Cape York United #1 claim. She deposed to how the Southern Kaantju s 87A agreement was approved, and to how the Southern Kaantju Aboriginal Corporation was nominated as the prescribed body corporate (PBC) for the Southern Kaantju Determination, annexing the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area.

10    In terms of connection material for the four determinations, the applicant relied on:

(a)    the expert report by Dr Natalie Kwok entitled “Northern Central and Princess Charlotte Bay Region” filed on 16 November 2017 (the Kwok 2017 report);

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

(c)    the supplementary expert report by Dr Kwok dated April 2019, which has been annexed to an affidavit of Parkinson Wirrick, a legal officer with the CYLC, affirmed and filed on 2 June 2022 (the Wirrick 2022 affidavit).

11    In terms of connection material for the Southern Kaantju determination in particular, the applicant relied on:

(a)    the witness statement of Allan Francis Creek dated 12 March 2019, and annexed to the Wirrick 2022 affidavit

(b)    the witness statement of Amos Hobson dated 4 March 2019, and annexed to an earlier affidavit of Mr Wirrick, which was affirmed and filed on 22 October 2021 (the Wirrick 2021 affidavit);

(c)    the apical report of Ms Waters regarding Charlie Bezai, dated 14 December 2020 and annexed to the Wirrick 2021 affidavit;

(d)    the apical report of Ms Waters regarding Alick Pitt, dated 6 July 2021 and annexed to the Wirrick 2022 affidavit;

(e)    the apical report of Ms Waters regarding Jinny Tayaqobi Archer, dated 14 March 2022 and annexed to the Wirrick 2022 affidavit;

(f)    the apical report of Ms Waters regarding Johnny Ilnkay, dated 14 March 2022 and annexed to the Wirrick 2022 affidavit;

(g)    the apical report of Ms Waters regarding Jack Shephard, dated 14 March 2022 and annexed to the Wirrick 2022 affidavit; and

(h)    the apical report of Ms Waters regarding Mother of Jack Shephard, dated 16 March 2022 and annexed to the Wirrick 2022 affidavit.

12    The applicant also relied on paragraphs [5] to [30] of an affidavit of Ms Malyon filed on 27 October 2021 (the Malyon 2021 affidavit), which concerned the re-authorisation process undertaken by the applicant in the period from April to September 2021.

PROCEDURAL HISTORY

13    The Cape York United #1 claim was filed in this Court in December 2014. It covers various types of tenure, including pastoral leases, protected areas, reserves and areas of unallocated State land. It is the largest native title claim currently before the Court, and covers a majority of the area of Cape York for which no determination under the Native Title Act has been made.

14    The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made last year: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [3], [12]-[19], [30]-[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]-[20], [28]-[35].

AUTHORISATION

The Southern Kaantju s 87A agreement

15    As with the Kuuku Ya’u and Uutaalnganu determinations, the process undertaken by the CYLC with the Southern Kaantju native title group was methodical. The two major decision-making processes which needed closely to involve landholding groups were the processes to settle boundary descriptions, and the processes to settle group composition.

16    The Boundary Identification Negotiation and Mediation or ‘BINM’ process was adopted in April 2020 to deal with the reality that different groups hold different native titles in the claim area: see Kuuku Ya’u determination at [18], [25]-[26] and Uutaalnganu determination at [19], [23]-[24]. The BINM process was employed for the Northern Kaanju, Southern Kaantju, Lama Lama and Ayapathu claims. This is what Ms Malyon describes in the Malyon 2022 affidavit at [73]-[113].

17    Putative boundary descriptions for Ayapathu, Lama Lama, Northern Kaanju and Southern Kaantju were developed from desktop research by the CYLC and Dr Kwok in the middle of 2020. These descriptions were informed by consultations with the anthropologists engaged by the CYLC for neighbouring areas. The putative boundary descriptions were provided to the State on 24 July 2020 without prejudice to the applicant’s position. Thereafter the CYLC facilitated consultations with the Ayapathu, Lama Lama, Northern Kaanju and Southern Kaantju groups throughout Cape York and in Cairns. This involved engaging Dr Kwok and Mark Winters (another consultant anthropologist) to consult with relevant families, elders and important individuals for a combined total of 47 days, and engaging Dr Kevin Murphy, Dr Anthony Redmond, Dr Ray Wood, Dr Frank McKeown and Dr David Thompson to consult with relevant families, elders and important individuals in the neighbouring groups for a combined total of 35 days. The consultations helped identify who should attend meetings on behalf of the four groups and their neighbours, and helped ensure that those people would attend those meetings. The consultations also helped inform the proposed descriptions for the four groups (which were eventually agreed with the State in March 2021).

18    Following the consultations, in the second half of 2020, separate ‘preliminary meetings’ were held for each of the Ayapathu, Lama Lama, Northern Kaanju and Southern Kaantju native title groups, at which maps of the preliminary boundaries were provided and changes were proposed by group members. Afterwards, ‘boundary meetings’ were held between neighbouring groups, at which the applicant, through its legal representatives, took instructions as to the final descriptions of common boundaries, ultimately to be provided to the State.

19    At each boundary meeting were the relevant consultant anthropologists, a CYLC lawyer and a CYLC anthropologist. The intention was that the boundary meetings be attended by people 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, as confirmed by the consultant anthropologists. The meetings commenced with an overview by the consultant anthropologists of the available anthropological materials. The consultant anthropologists then assisted the group representatives by providing advice, translation and feedback about anthropological and genealogical matters. Group representatives also had access to the CYLC’s genealogical records (subject to confidentiality), private break-out spaces, a series of maps and the State’s response to the putative boundary descriptions. At the end of the meetings, agreement as to boundaries by consensus was sought, and if there was agreement, it was recorded in written resolutions.

20    In the case of the Southern Kaantju, preliminary meetings were held on 25 August 2020 and 15 October 2020. Southern Kaantju group members were notified of the meetings by post and email, and meetings were also publicised on the CYLC’s website and Facebook page, and community noticeboards. At these meetings, an appropriate description of the Southern Kaantju native title group was discussed and settled.

21    Boundary meetings were held for the Southern Kaantju native title group with the Northern Kaanju native title group on 29 March 2021, with the Northern Kaanju and Uutaalnganu (Night Island) native title groups on 30 March 2021, with the Umpila native title group on 31 March 2021, with the Ayapathu native title group on 7-8 June 2021, and with the Ayapathu and Central Wik native title groups on 29-30 June 2021. There was also a mediation between Southern Kaantju and Umpila on 9 June 2021 about the Southern Kaantju eastern boundary, which became the subject matter of the interlocutory application last week. The boundary with the Ayapathu native title group around Klondyke King Mine could not be resolved in these first meetings, nor at additional boundary meetings on 30 June 2021 and 21 July 2021, nor at a mediation conducted by the Court on 10 September 2021. However, this boundary dispute was resolved at each group’s respective pre-authorisation meetings, which were held in March 2022.

22    The s 87A agreements were settled and authorised after the BINM process was complete. In the Malyon 2022 affidavit, Ms Malyon deposes to the notification of meetings to discuss, and subsequently authorise, the s 87A agreement for the Southern Kaantju determination. The Southern Kaantju authorisation meeting was conducted on 6 April 2022, and resolutions were passed unanimously to authorise the s 87A agreement. That authorisation included authorisation of the outcome of boundary negotiations with neighbouring groups, including Umpila.

23    At a wider level, the Cape York United #1 applicant’s authority to enter into the Southern Kaantju s 87A agreement stems from the re-authorisation process between April and September 2021. Ms Malyon describes this process in her 2021 affidavit, and the Court describes and approves it in Kuuku Ya’u determination at [30]-[37] and Uutaalnganu determination at [28]-[35].

24    In Kuuku Ya’u determination at [38]-[50] and Uutaalnganu determination at [36]-[48], I explained why I considered it appropriate to make orders under s 84D(4) of the Native Title Act to deal with any uncertainty arising from differences between the claim group description in the original Cape York United #1 application and those in the proposed determinations at a more local level, both as regards the Court’s power to make a determination and the way in which a claim can be authorised.

25    In those determinations, I agreed with the State’s submission that the weight of authority supports the view that the Native Title Act affords flexibility to shape the content of the ultimate determination of native title, provided there is compliance with s 94A and s 225 of the Act. However, orders were made under s 84D(4) out of an abundance of caution and to avoid any doubt about the validity of the consent determinations. At [50] in Kuuku Ya’u determination and [48] in Uutaalnganu determination, I said:

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.

26    In each of the present four determinations, the Cape York United #1 applicant proposed that similar orders be made. The State agreed with that proposal. For the reasons given in the extract above, I continue to consider such orders are appropriate.

THE CONNECTION OF THE SOUTHERN KAANTJU NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM

27    In her 2017 report, Dr Natalie Kwok presents native title connection evidence in relation to the North Central Cape York and south-eastern Princess Charlotte Bay areas. This report covers all four determination areas for yesterday and today. This evidence is informed by the historical, anthropological and archival record, as well as on-site field research and interviews with people who were believed to have a traditional connection to those areas, and a range of environmental and linguistic data set out in the report.

28    Dr Kwok describes how Aboriginal people were in occupation of the determination areas at the time of the British assertion of sovereignty, and that laws and customs observed at that time recognised rights and interests in relation to lands and waters. While she acknowledges that the local peoples were placed under significant pressure from pastoralists and government authorities to leave their homelands, Dr Kwok describes and explains the strong efforts to resist this pressure, and how many people remained on country or connected to country, including by accepting exploitative work in order to remain in the area. Dr Kwok reviews and summarises the contemporary laws and customs in relation to land tenure in the North Central Cape York and south-eastern Princess Charlotte Bay areas, and concludes that these rights and interests originate in the pre-sovereignty contemporary laws and customs, having been passed down primarily patrilineally and shared by elders in didactic stories.

29    The applicant relies on this evidence as establishing a credible basis for the proposition that each of the Northern Kaanju, Southern Kaantju, Lama Lama and Ayapathu native title claim groups have maintained their connection to their respective determination area, under their respective traditional laws and customs, since prior to the British assertion of sovereignty. The State accepts such a credible basis exists. I accept the parties’ submissions.

30    Dr Kwok describes Southern Kaantju country as in the central ranges region of Cape York, south from the Archer River to approximately around Coen (Kwok 2017 report at [596]):

Southern Kaanju territory extends approximately from Coen in the south to the boundary of the Archer River in the north. Its eastern boundary is in the coastal uplands of the Macrossan, McIlwaith, Tozer and Janet Ranges, and it extends westward to the western margins of the hill country, to the west of the development road between Coen and the Archer.

31    At [710], Dr Kwok states:

The Kaanju people have been repeatedly recorded as occupying a central position in the range country of Cape York Peninsula, with interests extending from the headwaters of the Pascoe in the north to the upper reaches of the Archer River system in the vicinity of Coen. The Northern Kaanju [Koko I’o] and Southern Kaanju divide, reflecting differences in perspective on the part of their neighbours and minor dialectal distinctions, have been flagged since at least the late 1920s. The broad extent with which the name is associated and the fact that Thomson recorded the name’s meaning as spear thrower handle, leads me to suspect that the name Kaanju may have had a relatively general application to upland peoples in the region, although it also functions as a language name.

32    The evidence supporting the Southern Kaantju group description, and the identification of apical ancestors, is found throughout the reports prepared by Dr Kwok and Ms Waters. I accept these matters were explored and presented to group members at a series of meetings described by Ms Malyon in the Malyon 2022 affidavit. They formed part of the s 87A authorisation process.

33    Finally, as had been done in the Kuuku Ya’u and Uutaalnganu determinations, it is appropriate to set out here some of the evidence of the Southern Kaantju group members, whose lived experiences and connections to culture and country provide the foundation for this determination. As I noted in the 2021 determinations, it is the group members who “live and understand their law and custom, and how it connects them to their country”: Kuuku Ya’u determination at [68]; Uutaalnganu determination at [59].

34    Allan Creek identifies as a Southern Kaantju man, through his father and his paternal grandfather. In his affidavit filed in support of the consent determination, he recounts at [80] how his father and grandfather were instrumental in the development of his knowledge about country: “We had old people like Dad who knew the boundaries. I know the country because I have been born and raised on our Kaanju area. I rode and walked it with my father and grandfather, all of it.”

35    At [53], Mr Creek explains how he understands how one establishes a connection to country:

We are connected to the land and the landscape through our ancestors, our totems and knowledge. We are taught about country. If you are not connected to the land then you can't make decisions about the land. My connection with country, knowing my country, that means a lot to me because I am in charge. It is my country. We have been put in charge of our country and I am in charge of our areas now. Even though there are people outside who say that they want to do this or that, it doesn't matter, because I am in charge of my country. We are in charge of our country.

36    Mr Creek elaborates on this at [107], in relation to the concept of bloodlines:

I have bloodline so I'm a traditional owner. I also grew up on country and know country; I know all about it. If other people have bloodline, but they didn't grow up here, they can't tell me what to do. They don't have the authority. So other people with bloodline can't tell me about this country if they didn't grow up on country. People who have the bloodline can always come back to country. We can't say "you can't come back", because they have bloodline. But we have the authority to say "you come back and listen and learn" because they grew up away from our country. Children have to listen and learn too.

37    At [114]-[115], Mr Creek explains the significance of connection to country for rights of access to country:

Under our law, in order to have a right to access country, you need to get permission, unless you have bloodline to that place. When you know the land, you know and understand the value of our sacred places. I know the country well and I feel the connection, deeply.

I was taught by my parents and grandparents that we have to be careful going onto someone else's country without their permission or without telling them. It's a matter of respect. It's the same if people want to come onto our country. We might not want someone going on to our country for a number of reasons, so we can say 'no', if someone asks. We might want to muster cattle or it might not be safe- or it could be a sacred place that shouldn't be disturbed. We also close areas for sorry business.

38    Amos Hobson also identifies as Southern Kaantju. He is a nephew of Mr Creek, and his evidence is that he was raised by Mr Creek’s father (Mr Hobson’s maternal grandfather). He also identifies as Umpila, through his father. In his witness statement, Mr Hobson recounts how his maternal grandfather handed down Kaanju cultural knowledge, and how Mr Hobson tries to pass that knowledge on today (at [33]):

I worked with my grandfather, Thomas Creek, for a while. Old Thomas taught me how to break in a wild horse and he taught me to ride horses. He taught me many cultural things as well, like how to find sugarbag or bush honey, how to hunt and make spears. We spent a lot of time together. It was good being out on my Kaanju country with my grandfather Creek, working and staying fit. I try and encourage young fellas to do that these days; to go out on country and work, away from alcohol.

39    He makes a similar statement at [158]:

My grandfathers, uncles and elders, like Thomas Creek, mooka Allan Creek, James Creek, Benny Giblet, Abraham Omeenyo, Frank Hobson, Sammy Short, James Clarmont, Peter Ropeyarn and Joseph Hobson have taught me about my Kaanju and Umpila country. They have taught me to respect country and respect elders. They have shown and taught me other things, like how to hunt and make spears, sacred place and the need to put a smell on strangers or visitors when they visit country. I have told my son these stories and told him about country and important places.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

40    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.

41    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.

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

43    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

44    As the applicant sets out at [46]-[51] of its submissions, which the State adopts, each of the pre-requisites in s 87A(1) is satisfied. Each s 87A agreement has been signed by the requisite persons after appropriate notification.

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

45    For the reasons set out at [52]-[57] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

46    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the Northern Kaanju, Southern Kaantju, Ayapathu or Lama Lama determination areas. As the State notes, areas over which previous exclusive possession acts have occurred are expressly excluded. There are no other proceedings before the Court relating to native title applications that cover any part of the area the subject of the determinations 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

47    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. 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. As I did in the Kuuku Ya’u and Uutaalnganu determinations, I adopt and apply the observations I made in Drury and Taylor here.

48    I am satisfied there has been a methodical and careful approach to group description, boundary description, connection and tenure adopted by all parties in relation to the four determinations, including Southern Kaantju. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests. The Court affords considerable weight to the position taken by the State, on behalf of all members of its community, that it is appropriate for the Court to make the proposed Northern Kaanju, Southern Kaantju, Ayapathu and Lama Lama determinations. The role of the State of Queensland in the detailed step by step process in the Cape York United #1 claim has involved considerable human and financial resources, and the Court can be confident the State has reached a carefully considered view before agreeing to these determinations.

49    Finally, I note the parties have agreed that the question whether s 47C of the Native Title Act might be applied to any park area within the Southern Kaantju determined area will be addressed after the matter has proceeded to consent determination. The Notes to the Court’s orders indicate the parties have an agreed process to discuss that question. It is appropriate for these matters to be noted in the Court’s orders.

NOMINATION OF A PRESCRIBED BODY CORPORATE

50    A separate PBC has been nominated under s 56 of the Native Title Act for each of the Northern Kaanju, Southern Kaantju, Ayapathu and Lama Lama determination areas. In the Malyon 2022 affidavit at [19]-[20], [35]-[36], [53]-[54] and [70]-[71], Ms Malyon describes how each PBC was nominated by the native title group concerned, and that each PBC has provided its consent to nomination. In these circumstances, the nomination of the PBCs is appropriate.

CONCLUSION

51    The Court acknowledges the dedication of Southern Kaantju group members, the members of the Cape York United #1 applicant and their legal representatives, anthropologists and other expert advisers, all of whom have worked together to achieve this determination.

52    In these four determinations, it is especially important to acknowledge the contribution of Ms Kirstin Malyon, who has recently left the Cape York Land Council, but whose tireless and high quality work assisting claim group members in securing recognition of their native title has been immensely valuable, and appreciated by the Court.

53    The Court also recognises the role played by the State and the other active respondents in this proceeding, and commends the work of National Judicial Registrar Stride and external mediators Glen Kelly and Joshua Creamer in the processes that have facilitated the Court’s decision today. The Court also thanks all its staff whose work behind the scenes in relation to mediations, hearings, travel, communications and preparation of orders and reasons is just as vital to the outcome as any of the more visible work a Judge might do.

54    These four determinations have been achieved despite the effects of the COVID-19 pandemic on the lives and work of all concerned over the last two years or more, and to have persisted in seeing these determinations through to a conclusion under such difficult circumstances is a particularly impressive achievement.

55    It bears repeating that every determination that native title exists is important. While there may be numerous determinations around Australia each year, there is only one for this country, the country of the Southern Kaantju People. This is their day.

56    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:    5 July 2022

SCHEDULE OF PARTIES

QUD 673 of 2014

Federal Court of Australia

District Registry: Queensland

Division: General