FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773

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 Lama Lama 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:

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 Lama Lama 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 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 Lama Lama 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 Lama Lama Aboriginal Corporation (ICN: 9758), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

LIST OF SCHEDULES

Schedule 1 – Native Title Holders

1.    The Native Title Holders are the Lama Lama People. The Lama Lama 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 Lama Lama 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 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:

3.    The rights and interests of Cook Shire Council:

4.    The rights and interests granted or available to RTA Weipa Pty Ltd (and any successors in title) under the Comalco Agreement, including, but not limited to, rights and interests in relation to the “bauxite field” (as defined in clause 1 of the Comalco Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where:

5.    The rights and interests of the State of Queensland 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.

6.    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.

7.    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:

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

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

10.    Any other rights and interests:

Schedule 3 – External Boundary

The area of land and waters:

Commencing at the High Water Mark at the mouth of the centreline of Breakfast Creek at Longitude 143.622555° East, Latitude 13.963464° South, and extending generally westerly along the centreline of Breakfast Creek and an unnamed watercourse until it intersects with the foothills of the McIlwraith Range at Longitude 143.355071° East, Latitude 13.971448° South, also being a point on a line of the 100m contour elevation; then southerly along the 100m contour until its intersection with the centreline of Port Stewart Road; then easterly along the centreline of that road until it intersects with the centreline of an unnamed road (also known as IWS (Irrigation Water Supply) Road) in an area known as Box Flat at Longitude 143.417308° East; then generally south-westerly and generally southerly along the centreline of IWS Road which passes through the following coordinates:

then south-easterly to the centreline of Stewart River at Longitude 143.394076° East; then easterly along the centreline of that river until it intersects with the centreline of an unnamed road (also known as Running Creek Lilyvale Road) at Longitude 143.575456° East; then generally south-easterly along the centreline of that road until the intersection with an unnamed road (also known as Lava Hill Road) at the second Rocky Crossing at 143.635965° East; then generally south-westerly along the centreline of Lava Hill Road which passes through the following coordinates:

then southerly to Longitude 143.572020° East, Latitude 14.209369° South, near where there is a large gum tree signing the boundary; then south-easterly until it intersects with the centreline of Balclutha Creek at Latitude 14.209567° South; then generally south-westerly along the centreline of that creek until it reaches a point at Longitude 143.517333° East; then south-easterly to the north-eastern corner of the northern severance of Lot 1 on SP161903, being the Balclutha Creek Nature Reserve; then southerly along the eastern boundary of that reserve, crossing an unnamed road, to its intersection with the eastern boundary of another unnamed road (also known as the Old Telegraph Line) at a point on the north-western corner of the western-most severance of Lot 6 on SP189946; then westerly to the centreline of that road; then generally southerly along the centreline of that road to its intersection with the eastern boundary of Lot 3384 on SP182311 at Latitude 14.667379° South; then easterly and southerly along the boundaries of that lot to its intersection with the centreline of Red Blanket Creek at Latitude 14.668541° South; then south-easterly to a point on the centreline of Lilyvale Road (also known as Musgrave Plains Road) at Longitude 143.564351° East, which is adjacent to a gravel pit; then north-easterly along the centreline of that road to its intersection with Marina Plains Road; then north-easterly along the centreline of that road to its intersection with Lakefield Road; then generally south-easterly along the centreline of that road past the Lakefield Ranger Base until it intersects with Mount Webb Wakooka Road (also known as Kalpowar Road); then generally north-easterly along that road to its intersection with the centreline of Normanby River; then generally northerly along the centreline of Normanby River to the High Water Mark at the mouth of that river; then generally north-westerly along the High Water Mark 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).

Contours - 10 metre interval sourced from Department of Resources, Qld (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.

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

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

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.

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:

3.    Those land and waters within the External Boundary that were excluded from the Native Title Determination Application 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:

4.    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 Lama Lama People. This determination is being made a day after determinations recognising the native title of the Northern Kaanju People and the Southern Kaantju People, and on the same day as a determination recognising the native title of 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    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 yesterday. For this reason, the determinations do not reflect the entirety of the country claimed by each of the four native title holding groups.

3    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.

4    This important day for the Lama Lama People is the right time to remember how elders described Lama Lama country being filled with law and with all that was needed for life. In the words of Mr P Bassani and Mr A Lakefield, now passed away:

We are Lamalama elders. Our traditional land is inside Lakefield National Park, the country of our Old People, our ancestors Lamalama land and sea-country. Them Cliff Island too in Princess Charlotte Bay. This is the country of our Stories, our ceremonies, our traditions and our culture. We got forest, woodland, grass plain, floodplain, mangrove and saltpan country. Plenty river, creek, swamp and lagoon too. the land, and the sea, them river all got plenty of food for us. In Lamalama way you can’t go hungry. The Stories put that tucker there. Yam, lady-apple, archerfish, blue-tail mullet, kangaroo, wallaby, snail-shell, oyster, mud crabs, lily – all that food there. Them Story put the Law there too. They taught the Old people how to hunt, how to cook their tucker, make ceremony and live on the land.

5    The Court’s orders, and the long overdue recognition by Australian law, will help preserve the country of the Lama Lama People so that this deep connection is protected and so that future generations can have the rules and knowledge about country passed on to them in order to continue that connection.

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.

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 2 June 2022. The State filed submissions on 10 June 2022. The Court has been greatly assisted by the parties’ submissions.

8    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 Lama Lama s 87A agreement was approved, and to how the Lama Lama Aboriginal Corporation was nominated as the prescribed body corporate (PBC) for the Lama Lama determination, annexing the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area.

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

(a)    the expert report of 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 of 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).

10    In terms of connection material for the Lama Lama determination in particular, the applicant relied on:

(a)    the witness statement of Gavin Bassani dated 27 March 2019, which is annexed to the Wirrick 2022 affidavit;

(b)    the apical report of Ms Waters regarding Tommy Kangaroo dated 30 June 2020, which is also annexed to the Wirrick 2022 affidavit;

(c)    the apical report of Ms Waters regarding Maurice (Thowandya) (father of King Armstrong and Possum aka Possum Maurice) dated 1 June 2022, also annexed to the Wirrick 2022 affidavit; and

(d)    the apical report of Ms Waters regarding Old Man Billy (Waarrathu/Gangayurrkumu) dated 21 April 2022, also annexed to the Wirrick 2022 affidavit.

11    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

12    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.

13    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 Lama Lama s 87A agreement

14    As with the Kuuku Ya’u and Uutaalnganu determinations, the process undertaken by the CYLC with the Lama Lama 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.

15    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].

16    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).

17    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.

18    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.

19    In the case of the Lama Lama, preliminary meetings were held on 27 August 2020 and 13 October 2020. Lama Lama 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 Lama Lama native title group was discussed. Further consultations about apical ancestors were held with particular families on 6 May, 10 June, and 22 and 27 September 2021, resulting in the inclusion of Jerry Crowbar as an apical ancestor.

20    Boundary meetings were held for the Lama Lama native title group with the Ayapathu native title group, with the Kuku Thaypan native title group and with the Olkola Traditional Owner group on 20-21 April 2021, with the Kuku Thaypan and Marrett River Traditional Owner groups on 6-7 May 2021, and with the Kuku Thaypan Traditional Owner group on 23 July 2021. Following these meetings, the State requested further information about the south-eastern boundary of Lama Lama, which neighbours the Kuku Warra. Further boundary meetings occurred on 22 and 23 February 2022 between the Lama Lama native title group and the Kuku Warra native title group, including members of the Bagaarmugu clan, who were on the CYLC’s contact database. Further notification of these meetings occurred online, via Facebook, and via key spokespeople, as well as by delivery of additional meeting notices in Cooktown, Mossman and Wujal Wujal. The meetings, which included discussions of Jerry Crowbar’s inclusion in the group descriptions for Lama Lama and Kuku Warra, resulted in an agreed boundary on 23 February 2022.

21    Another issue related to the boundary with the Umpila native title group, which was unable to be agreed after mediation conducted by the CYLC on 2 March 2020, 2-4 February and 7-8 April 2021, and further mediation conducted by the Court on 8 June, 6 September and 27 October 2021. Following a judicial case management hearing, the applicant and the State developed an approach whereby the area of the Lama Lama claim not subject to a dispute with Umpila would proceed to consent determination in July 2022, whilst the disputed area would be reserved for a contested hearing by the Court. This approach involved the CYLC and a consultant anthropologist consulting with the Lama Lama native title group, including about the inclusion of Frank Port (Nangkayunumu) as a Lama Lama apical ancestor in any consent determination, regardless of whether the disputed area would ultimately be recognised as Lama Lama or not. The Lama Lama native title group unanimously resolved that Frank Port should be included in the group description regardless of the outcome of the disputed area.

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 Lama Lama determination. The Lama Lama authorisation meeting was conducted on 12 April 2022, and resolutions were passed by majority to authorise the s 87A agreement.

23    At a wider level, the Cape York United #1 applicant’s authority to enter into the Lama Lama 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 LAMA LAMA 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 today and yesterday. 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    In relation to the Lama Lama People, Dr Kwok states (at [712] of her 2017 report):

People referred to as the Koko Lamalama are registered in connection with the coastal area of southern Princess Charlotte Bay in Roth’s writings in the early 1900s. The Lamalama name appears to have had relatively flexible application, even in the pre-sovereignty period, being applied in the first instance by outsiders to reference people of the saltpan country. The name also had narrower application, labelling a language variety associated with the Jane Table Hill area. The contemporary Lamalama identity encompasses the interests of five to six distinct pre-sovereignty language groupings extending south from Massy Creek along the shores and adjacent hinterland of Princess Charlotte Bay to the Normanby and perhaps as far as the Marrett River. The consolidation and expansion of the identity in the post-settlement period has been productive of both conflicts - particularly on the northern peripheries – and ambiguities.

31    The State submits:

Whilst identifying as a single language-named group, there is a retention of knowledge of clan estates with families continuing to identify themselves with particular locales and languages.

32    The Court accepts there is a credible basis in the material for this conclusion.

33    The evidence supporting the Lama Lama 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.

34    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 Lama Lama 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].

35    Gavin Bassani principally traces his connection to Lama Lama country through his great-grandfather, who was from Breakfast Creek, and whose maternal grandmother was a sister to Kowayi Yalmarrka, which means ‘Breakfast Creek’. Mr Bassani also has connections to Port Stewart through his grandmother’s husband, to Cape Melville/Barrow Point through his grandmother’s mother, and to Hopevale through his mother. In his witness statement, Mr Bassani recounts how his grandparents, uncles and father taught him about hunting, fishing, camping and spear-making on Lama Lama country.

36    Mr Bassani describes the constituency of the Lama Lama People, and its significance, as follows (at [29]):

There are eight clan groups which cross over and are interconnected; we are all Lama Lama. A Lama Lama child has full access to all Lama Lama country. But if you are from somewhere else, you don’t get full rights.

37    According to Mr Bassani, rights to country comprise the following privileges and responsibilities (at [41]-[43]):

We can make decisions about our country. If a decision is going to be made, then we talk to our elders, and they give us advice.

There are protocols around other people's country. You can only make decisions on your own country. If you make a decision about someone else's country, or take something from someone else's country, you will get into trouble. It shows disrespect, for example going in there and catching turtle; you can't just go in and please yourself. You have to show courtesy and respect - you wouldn't want them to hunt and fish and make decisions on your country.

Since 2013, we have had a TUMRA [Traditional Use of Marine Resources Agreement] which goes from the Massey River [N10] [a reference to a map attached to Mr Bassani’s statement] to the south bank of the Normanby River [P12]. Everyone who is connected to our country knows exactly what the protocols are and what is required. There are no photos on social media of turtles and we have a quota for our use. This is our business and we do not put that out there to the public. We have our rules and we have now put the rules into a document, the TUMRA.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

38    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.

39    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.

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

41    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

42    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

43    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.

44    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

45    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.

46    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 Lama Lama. 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.

NOMINATION OF A PRESCRIBED BODY CORPORATE

47    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

48    The Court acknowledges the dedication of Lama Lama 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.

49    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.

50    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 decisions today and yesterday. 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.

51    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.

52    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 Lama Lama People. This is their day. 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:    1 July 2022

SCHEDULE OF PARTIES

QUD 673 of 2014

Federal Court of Australia

District Registry: Queensland

Division: General