FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176

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 Atambaya 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 that part of Lot 26 on NPW404 that falls within the External Boundary (the park 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 the park area, the parties would not oppose an application being brought on behalf of the Atambaya Native Title Aboriginal Corporation (ICN: 9839) pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to the 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 described in paragraph C above not to oppose an application being brought to vary the Determination in relation to the 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 area, 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.    Pursuant to s 199C(1A) of the Native Title Act 1993 (Cth), the Registrar is not to remove the Batavia ILUA (QI2012/120) from the Register of Indigenous Land Use Agreements, at least to the extent the Batavia ILUA falls within the External Boundary.

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

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

5.    The determination area is the land and waters described in Schedule 4 and depicted in the map 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.

6.    Native title exists in the Determination Area.

7.    The native title is held by the Atambaya People described in Schedule 1 (the Native Title Holders).

8.    Subject to orders 10, 11 and 12 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.

9.    Subject to orders 10, 11 and 12 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.

10.    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.

11.    The native title rights and interests referred to in orders 8(b) and 9 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 

12.    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). 

13.    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). 

14.    The relationship between the native title rights and interests described in orders 8 and 9 and the Other Interests described in Schedule 2 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:

15.    The native title is held in trust.

16.    The Atambaya Native Title Aboriginal Corporation (ICN: 9839), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

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

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

LIST OF SCHEDULES

SCHEDULE 1 – NATIVE TITLE HOLDERS    VIII

SCHEDULE 2 – OTHER INTERESTS IN THE DETERMINATION AREA    IX

SCHEDULE 3 – EXTERNAL BOUNDARY    XIII

SCHEDULE 4 – DESCRIPTION OF DETERMINATION AREA    XVI

SCHEDULE 5 – AREAS NOT FORMING PART OF THE DETERMINATION AREA    XIX

SCHEDULE 6 – MAP OF DETERMINATION AREA    XX

SCHEDULE 1 – NATIVE TITLE HOLDERS

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

(a)    Mary McDonnell & Jack Snake;

(b)    Ourinda & Emara McDonnell Charcoal;

(c)    Nataki Charlie;

(d)    William ‘Willie’ McDonnell;

(e)    Charlie McDonnell (father of Charlie Woolhead);

(f)    Charlie McDonnell (father of Polly McDonnell aka Polly Peter);

(g)    Alligator McDonnell (aka Wondorognu/Wondoronio);

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

(i)    Epiden & Eteman (parents of Doris Harry);

(j)    Kaio;

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

(l)    Aitapu aka Atapu/Oitutu (spouse of Jack Wantanu McDonnell and Atunmer/Atunmu);

(m)    Atunmer aka Atunmu (spouse of Aitapu aka Atapu/Oitutu);

(n)    Jack Wantanu McDonnell (spouse of Aitapu aka Atapu/Oitutu); or

(o)    Vaseline.

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)    Batavia ILUA (QI2012/120) registered on 8 May 2013; and

(b)    PNG Gas Pipeline ILUA (QI2006/043) registered on 15 May 2008.

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:

(a)    as the owner(s) or operator(s) 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 their telecommunications facilities;

(c)    for their employees, agents or contractors to access their 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 their telecommunications facilities in the Determination Area.

3.    The rights and interests granted or available to RTA Weipa Pty Ltd (ACN 137 266 285) (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:

(a)    “Comalco Act” means the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld); and

(b)    “Comalco Agreement” means the agreement in Schedule 1 to the Comalco Act, including as amended in accordance with such Act.

4.    The rights and interests granted or available to Alcan South Pacific Pty Ltd (ACN 009 726 078) (and any successors in title) under the Alcan Agreement, including, but not limited to, rights and interests in relation to the “bauxite field” (as defined in clause 1 of the Alcan Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where:

(a)    “Alcan Act” means the Alcan Queensland Pty Limited Agreement Act 1965 (Qld); and

(b)    “Alcan Agreement” means the agreement in Schedule 1 to the Alcan Act, including as amended in accordance with such Act.

5.    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; and

(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 5(a), (b) and (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 5 and paragraph 6 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 5(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.

6.    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.

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:

(a)    the Aboriginal Land Act 1991 (Qld);

(b)    the Fisheries Act 1994 (Qld);

(c)    the Land Act 1994 (Qld);

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

(e)    the Forestry Act 1959 (Qld);

(f)    the Water Act 2000 (Qld);

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

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

(i)    the Planning Act 2016 (Qld);

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

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

9.    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.

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:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

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

11.    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:

commencing at the point where the south-eastern boundary of Lot 26 on NPW404, also being the Great Dividing Range, intersects with the southern boundary of the Northern Cape York Group #1 determination (QCD2014/017) at Latitude 11.592880° South, and extending westerly and southerly along the boundaries of that determination and the Northern Cape York Group #3 determination (QCD2017/005) to the south-eastern corner of Lot 8 on SP252492, further described as:

extending due west along the southern boundary of the Northern Cape York Group #1 determination (QCD 2014/017) until it intersects with the eastern boundary of Lot 1 on SP120090; then southerly along the eastern boundary of that lot to its intersection with the northern boundary of Lot 2 on SP161905; then easterly (crossing the Telegraph Road), southerly, and westerly (re-crossing the Telegraph Road) along the boundaries of that lot until it intersects again with Lot 1 on SP120090; then southerly along the eastern boundary of that lot until its south-eastern corner; then southerly across the Dulhunty River to the north-eastern corner of Lot 8 on SP252492; then southerly along the eastern boundary of that lot until its south eastern corner;

then southerly to the eastern most north-eastern corner of Lot 4 on SP266637, then southerly along the eastern most boundary of that lot and its prolongation until it intersects with the centreline of Schramm Creek; then generally easterly and northerly along the centreline of Schramm Creek to its intersection with the northern boundary of Lot 22 on SP241405 at 12.265203° South, being the Batavia National Park CYPAL; then following that lot boundary in an easterly direction until it intersects with the Great Dividing Range; then northerly along the Great Dividing Range until a point at Latitude 12.179538° South; then north-westerly and north-easterly until the boundary intersects again with the Great Dividing Range at Latitude 12.029019° South (being the eastern boundary of Bamaga Road (also known as Southern Bypass Road)), passing through the following coordinate points:

then northerly and north-westerly along the Great Dividing Range (being the eastern boundary of Southern Bypass Road) until a point at Latitude 11.919959° South; then north-westerly and north-easterly until the boundary intersects again with the Great Dividing Range at Latitude 11.844676° South (being the eastern boundary of Southern Bypass Road), passing through the following coordinate points:

then northerly along the Great Dividing Range back to the commencement point, further described as:

north-easterly along the eastern boundary of Southern Bypass Road until the intersection with Lot 3 on JD8; then generally northerly along the eastern boundaries of that lot crossing across Lots 4 and 5 on SP296927, until the intersection with the south-west corner of Lot 19 on SP269684; then generally northerly along the western boundary of that lot until the intersection with the southern boundary of Lot 26 on NPW404; then generally north-easterly along the eastern boundary of that lot back to the commencement point.

(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).

Native title determinations sourced from the Commonwealth of Australia, NNTT (August 2021).

Mountain ranges, beaches and sea passages 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.

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

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:

(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; and

(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).

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:

(a)    any area where there had been an unqualified grant of an 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, including Lot 4 on SP296927.

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 Atambaya People. This determination is being made on the same day as a determination recognising the native title of the Gudang Yadhaykenu People. The Court also makes a determination with respect to certain individual parcels in favour of the Northern Cape York #2 native title group, being the native title holders determined in Coconut on behalf of the Northern Cape York # 2 Native Title Claim Group v State of Queensland [2014] FCA 629. The NCY#2 identified parcels determination is made on the papers. The spelling of ‘Atambaya’ differs in the material. It is at times spelled ‘Atampaya’. I have used the former, as reflected in the parties’ submissions, unless extracting from passages in the material where the latter spelling has been used.

2    Together, these determinations resolve three parts of the Cape York United #1 claim, within a geographic region that has come to be known as the ‘Redmond Part A area’, because Dr Anthony Redmond was the anthropologist engaged by the Cape York United #1 applicant to prepare connection material about the area. As set out in the most recent timetabling orders in this proceeding, being the orders dated 30 August 2022, these three determinations do not include all areas over which Dr Redmond provided connection reports. The remaining areas, now described in the Court’s timetabling orders as the ‘Redmond Part B area’, are proceeding separately towards determination.

3    Recognising that each of the Redmond Part A 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    The material filed in support of the present determination demonstrates the real significance of the determination for the Atambaya People, the traditional connection of the Atambaya People to the determination area, and the importance of that connection being passed down to future generations. Walter Moses is an Atambaya man. He explains:

Our law is 40,000 years old, and we must follow it. It comes from the old people, my ancestors and their ancestors, handed down from generation to generation.

5    To similar effect, Francis Jimmy Brisbane, also an Atambaya man, says:

My grandfather passed the law down to my father, and my father passed it down to me. I pass it to my children, and they pass it to their children. We still carry the traditional law that belonged to my ancestors. Nobody can break the law.

6    Gina Marilyn Nona is an Atambaya woman. She describes:

It is important for me to see Atampaya country, to set foot there. My ancestors lived at Atampaya homestead and they walked our country. Culturally I have the right to go to my country and do whatever I like there, as long as I follow the rules taught to me by elders like my mum.

7    The Court’s orders, representing long overdue recognition by Australian law of the land and waters of the Atambaya People, will assist the Atambaya People to preserve and protect their country, as they have done since time immemorial, so that their knowledge and law can continue to be passed down to future generations.

8    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

9    The application for consent determination was supported by a principal set of submissions filed by the applicant on 21 September 2022. The State filed its submissions on 23 September 2022. Each set of submissions was made jointly with respect to each of the determinations falling within the Redmond Part A area. The Court has been greatly assisted by the parties’ submissions.

10    The applicant relied on two affidavits dealing with matters relevant to the determinations falling within the Redmond Part A area. First, an affidavit of Kirstin Donlevy Malyon affirmed and filed 21 September 2022 (2022 Malyon affidavit). Second, an affidavit of Caleb King affirmed and filed 21 September 2022 (King affidavit). The King affidavit supports only the Atambaya and Gudang Yadhaykenu determinations. The State relied on an affidavit of Kate Evelyn Marchesi affirmed and filed 23 September 2022.

11    Ms Malyon has been the Principal Legal Officer at the Cape York Land Council, and has had carriage of the Cape York United #1 claim. In the 2022 Malyon affidavit, she deposes to the process undertaken for determining appropriate group and boundary descriptions for each determination, and describes the way in which the Atambaya s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Atambaya Native Title Aboriginal Corporation was nominated as the prescribed body corporate (PBC) for the Atambaya determination. She annexes to her affidavit the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area.

12    In terms of connection material for the three determinations, the applicant relied on:

(a)    an expert report of Dr Redmond entitled “Anthropologist’s Report: Traditional Laws, Customs and Connection to the Bertiehaugh-Bramwell Region of Northern Cape York Peninsula” dated 30 October 2017 and filed 31 October 2017 (2017 Redmond report);

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

(c)    a supplementary expert report of Dr Redmond dated 19 December 2018 and filed 21 September 2022 (2018 Redmond report); and

(d)    the King affidavit.

13    In terms of connection material for the Atambaya determination in particular, the applicant relied on the following, each of which is annexed to the King affidavit:

(a)    an apical report of Ms Waters dated 2 August 2021 and filed 21 September 2022 regarding Louisa Hall nee Ducie (Galmoth);

(b)    a further report of Ms Waters dated 1 November 2021 and filed 21 September 2022 regarding Louisa Hall nee Ducie (Galmoth);

(c)    a witness statement of Mr Moses dated 17 December 2018 and filed 21 September 2022;

(d)    a witness statement of Mr Brisbane dated 7 December 2018 and filed 21 September 2022;

(e)    a witness statement of Ms Nona dated 19 December 2018 and filed 21 September 2022;

(f)    an apical report of Ms Waters dated 26 July 2021 and filed 21 September 2022 regarding Ralph Coconut;

(g)    an apical report of Ms Waters dated 26 July 2021 and filed 2021 September 2022 regarding Kakarus;

(h)    an apical report of Ms Waters dated 3 August 2021 and filed 21 September 2022 regarding Vaseline (Charcoal – father of Vaseline);

(i)    an apical report of Ms Waters dated 29 January 2021 and filed 21 September 2022 regarding Atunmer and Aitapu and Jack Wantanu McDonell;

(j)    an apical report of Ms Waters dated 22 January 2021 and filed 22 September 2022 regarding Jipsit;

(k)    an apical report of Ms Waters dated 22 January 2021 and filed 21 September 2022 regarding Ralph Coconut;

(l)    an apical report of Ms Waters dated 22 January 2021 and filed 21 September 2022 regarding Willy McDonnell (aka Atunmu Watanu Billy Morgan (Moreton) Willy Tom);

(m)    an apical report of Ms Waters dated 10 August 2021 and filed 21 September 2022 regarding Wootinba and Peter Sugarbag; and

(n)    an apical report of Ms Waters dated 12 September 2022 and filed 21 September 2022 regarding Charlie Otomo McDonnell and Charlie McDonnell (father of Polly McDonnell aka Polly Peter).

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

PROCEDURAL HISTORY

15    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 yet been made.

16    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 in November 2021: 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]. In addition to those determinations, four determinations in this proceeding were also made in July 2022: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773. The Court’s reasons in each of those determinations also note the complex and individualised process leading to each determination within the overall Cape York United #1 claim.

17    Relevantly to the present determination, the Atambaya People have been recognised as part of the group holding native title in Woosup on behalf of the Northern Cape York Group #1 v State of Queensland (No 3) [2014] FCA 1148 and Anderson on behalf of the Northern Cape York #3 Native Title Claim Group v State of Queensland [2017] FCA 830. In those determinations, the Atambaya People were recognised as part of what was termed “the Northern Cape York #1 native title holding group constituted by the Angkamuthi Seven Rivers, the McDonnell Atampaya and the Gudang/Yadhaigana people”: Woosup at [1]; Anderson at [2].

THE AGREED GROUP DESCRIPTION

18    The description of the Atambaya native title group differs from the description of the group described in Woosup and Anderson. Those determinations did not discretely define the Atambaya native title group. The applicant submits that the Atambaya ancestors as they appear in the Woosup and Anderson are as follows:

(i)    Jipsit and Dolly;

(j)     Mary McDonnell and Jack Snake;

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

(l)    Ralph Coconut;

(m)     Charlie Nataki;

(n)     William McDonnell;

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

(p)     Wondorognu Alligator McDonnell and Mary Brown;

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

(r)     Clara and Jimmy McDonnell;

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

(t)     Kaio; and

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

19    The applicant submits that these descriptions in Woosup and Anderson have been amended in the Atambaya s 87A agreement in order more accurately or correctly to identify the individual concerned, to remove references to individuals whose affiliation is not known, and to add references to individuals subsequently identified as apical ancestors. Accordingly, at [25] of its submissions, the applicant sets out the effects of the amendments:

(a)     Jipsit and Dolly (item (i))—this item is removed from the group description, because:

(i)     Jipsit is the son of “Aitapu aka Atapu/Oitutu (spouse of Jack Wantanu McDonnell and Atunmer/Atunmu)” (item (k)) and “Jack Wantanu McDonnell (spouse of Aitapu aka Atapu/Oitutu” (item (m)); and

(ii)     Dolly, as her affiliation is not known;

(b)     Ourinda & Emara McDonnell Charcoal (grandparents of Willy and Louisa Charcoal) (item (k))—this item is amended to remove the words “grandparents of Willy and Louisa Charcoal” because the identification of Louisa Charcoal (aka Louisa Ducie and Louisa Hall) as the grandchild of “Ourinda & Emara McDonnell Charcoal” is not supported by the available evidence, or the native title group;

(c)     Ralph Coconut (item (l))—this item is removed from the group description, because there is insufficient evidence to justify Ralph Coconut’s identification as an Atambaya apical ancestor. Ralph Coconut’s father, Buster Billy Coconut, is the son of Juanqui who is listed as an apical ancestor for the Weipa Peninsula People;

(d)     Charlie Nataki (item (m))—this item is changed to reverse the name order;

(e)     William McDonnell (item (n))—the item is changed to better describe the name of the individual as “William ‘Willie’ McDonnell”;

(f)     Charlie Otomo McDonnell and his wife, Agemo (parents of Charlie Woolhead (Pascoe)) (item (o))—the item is changed to remove reference to the spouse Agemo, as her affiliation is not known and to remove the name “Otomo” in the reformulation to reflect the lack of clarity as to the original source of this name;

(g)     the addition of Charlie McDonnell (father of Polly McDonnell aka Polly Peter) because it is considered probable that there were two distinct individuals recorded as Charlie McDonnell, one the father of Charlie Woolhead and the other the father of Polly McDonnell;

(h)     Wondorognu Alligator McDonnell and Mary Brown (item (p))—this item is changed to remove reference to the spouse Mary Brown as her affiliation has not been confirmed;

(i)     Clara and Jimmy McDonnell (item (r))—this item is removed from the group description because Jimmy McDonnell is the son of William ‘Willie’ McDonnell (item (n))) and Clara’s affiliation has not been confirmed;

(j)     the addition of “Aitapu aka Atapu/Oitutu (spouse of Jack Wantanu McDonnell and Atunmer/Atunmu)” because this apical ancestor has been identified as an Atambaya apical ancestor. All her descendants were previously incorrectly included under William ‘Willie’ McDonnell;

(k)     the addition of “Atunmer aka Atunmu (spouse of Aitapu aka Atapu/Oitutu)” because this apical ancestor been identified as an Atampaya apical ancestor. This corrects a misdescription of the group in the NCY#1 Determination and the NCY#3 Determination, which treated “Atunmer aka Atunmu” and “Jack Wantanu McDonnell” as the same individual as “William ‘Willie’ McDonnell”;

(l)     the addition of “Jack Wantanu McDonnell (spouse of Aitapu aka Atapu/Oitutu)” because this apical ancestor has been identified as an Atampaya apical ancestor. This corrects a misdescription of the group in the NCY#1 Determination and the NCY#3 Determination, which treated “Jack Wantanu McDonnell” and “Atunmer aka Atunmu” as the same individual as “William ‘Willie’ McDonnell”;

(m)     the addition of “Vaseline” because this apical ancestor has been identified as an Atampaya apical ancestor.

20    These amendments to the group description were approved by the Atambaya native title group on 8 September 2022. The applicant submits, with particular reference to the description in the 2022 report of Ms Waters annexed to the 2022 Malyon affidavit, that:

(a)    the amendments in (a), (d)-(f) and (h)-(l) above will not result in any changes to the composition of the native title holding group;

(b)    the amendment in (b) and (c) above will have the effect of descendants of Louisa Hall (nee Ducie) ((b), above) and descendants of Ralph Coconut ((c), above) no longer being included in the native title group, unless they are descended from another Atambaya apical ancestor; and

(c)    the amendments in (g) and (m) above will have the effect of the descendants of Charlie McDonnell (father of Polly McDonnell aka Polly Peter) ((g), above) and the descendants of Vaseline ((m), above) being included in the native title holding group.

21    The State submits that the group descriptions proposed by the applicant in relation to Atambaya and Gudang Yadhaykenu “are supported by the anthropological and genealogical reports”. The State does not oppose the amendments to the group description from those descriptions in Woosup and Anderson.

22    The Court accepts the parties’ submissions on this matter.

AUTHORISATION

The Atambaya section 87A agreement

23    Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Atambaya native title group was methodical. Prior to authorisation of the s 87A agreement, there were two decision-making processes which needed closely to involve landholding groups: the process to settle boundaries between Atambaya and their neighbours; and the process to settle group composition, by identification of apical ancestors.

24    The Boundary Identification Negotiation and Mediation or ‘BINM’ process was adopted in April 2020 to deal with the reality existing within the Cape York United #1 claim area that distinctly identifiable groups hold interests in that area: see Kuuku Ya’u determination at [18], [25]-[26] and Uutaalnganu determination at [19], [23]-[24]. The BINM process was employed for the Atambaya and Gudang Yadhaykenu claims. This is what Ms Malyon describes in the 2022 Malyon affidavit at [51]-[91].

25    Putative boundary descriptions for Atambaya and Gudang Yadhaykenu native title groups were developed from desktop research by the CYLC and Dr Redmond. They were provided to the State on 4 December 2020 on a ‘without prejudice’ basis. These descriptions were prepared in consultation with anthropologists engaged by CYLC in relation to neighbouring areas.

26    Following the provision of the putative boundary descriptions to the State, the CYLC facilitated consultations with the Atambaya and Gudang Yadhaykenu groups. This commenced in January 2021, and involved engaging Dr Redmond to consult with relevant families, elders and other key persons for a total of 29 days. It also involved engaging Dr Natalie Kwok, Dr Frank McKeown and Mark Winters (for a total of 85.5 days), as well as Dr David Thompson (for a total of 20.5 days), as consultant anthropologists for neighbouring groups to discuss common boundaries. The consultations helped identify who should attend meetings on behalf of the groups and their neighbours, and helped ensure that those people could attend those meetings. The consultations also helped inform the proposed descriptions for the groups.

27    The CYLC held ‘preliminary meetings’ between March and June 2021 with each of the Atambaya and Gudang Yadhaykenu groups to discuss boundaries, provide further information about the BINM process, and to receive instructions. Preliminary meetings were open to all members of the respective native title groups. Copies of the applicable notices were sent to all members of each of the Atambaya and Gudang Yadhaykenu native title groups on the CYLC contact database by post and email (where email addresses were available), and were notified on the CYLC website, CYLC Facebook page and community noticeboards.

28    The CYLC facilitated a number of ‘boundary meetings’ between neighbouring native title groups with respect to the Redmond Part A area, at which instructions were taken about final descriptions of common boundaries. These took place between 11 May 2021 and 23 June 2022. A CYLC lawyer and anthropologist were present at each boundary meeting. Each of the relevant consultant anthropologists were present for most meetings.

29    At the introductory session for the boundary meetings, each consultant anthropologist provided an overview of the available anthropological materials. The anthropologists supported and facilitated the participation of appropriate group representatives, providing advice and feedback to them about previous anthropological research, communicating their 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. 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.

30    The Redmond Part A area groups met with their neighbours over a period of around nine months. The boundary meetings relevant to the Atambaya and Gudang Yadhaykenu native title groups were:

(a)    a meeting on 11-13 May 2021 for the Yinwum, Atambaya, Northern Kaanju and Taepadhighi native title groups;

(b)    a meeting on 29 May 2021 for the Yinwum and Atambaya native title groups;

(c)    a meeting on 30 May 2021 for the Atambaya and Northern Kaanju native title groups;

(d)    a meeting on 31 May 2021 for the Atambaya and Taepadhighi native title groups;

(e)    a meeting on 2 June 2021 for the Gudang Yadhaykenu native title group;

(f)    a meeting on 4 June 2021 for the Atambaya native title group;

(g)    a meeting on 23 June 2021 for the Wuthathi native title group; and

(h)    a meeting on 23 June 2022 for the Atambaya and Wuthathi native title groups.

31    At pre-authorisation meetings on 27 and 28 July 2022 respectively, the Wuthathi and Taepadhighi native title groups resolved not to proceed with the authorisation of their draft s 87A Agreements, indicating a desire to renegotiate their previously agreed boundaries with the Atambaya native title group. A second pre-authorisation meeting for the Atambaya native title group was held on 11 August 2022, at which the group decided:

(a)    to invite the Wuthathi and Taepadhighi native title groups to provide their connection evidence to areas beyond the boundary that was previously agreed and, if credible evidence is produced, consider further negotiation; and

(b)    to proceed to authorising a draft s 87A agreement for that part of Atambaya country that is not subject to assertions of Wuthathi or Taepadhighi native title interests.

32    The Atambaya native title group passed resolutions to the same effect at its meeting of 8 September 2022, making resolutions concerning their neighbours, the Wuthathi and Taepadhighi native title groups, and authorising the draft Atambaya s 87A agreement.

33    As I have explained, the apical ancestors identified in the Atambaya s 87A agreement differ from the description of the group described in Woosup and Anderson. The process for the finalisation of the Atambaya group description is described in the 2022 Malyon affidavit at [92]-[97]. As Ms Malyon explains, the group description for the Atambaya native title group was the subject of preliminary meetings and consultations held on 16 March 2021, 28 April 2021 and 4 June 2021. The amended group description for Atambaya was approved by the Atambaya native title group on 8 September 2022. It is clear that the work done to more accurately identify the Atambaya apical ancestors, especially by Ms Waters, was thorough and careful.

34    The s 87A agreements were settled and authorised after the BINM process, and the process to determine correct apical ancestors, were complete. In the 2022 Malyon affidavit, Ms Malyon deposes to the notification of meetings to discuss, and subsequently authorise, the s 87A agreement for the Atambaya determination. The Atambaya authorisation meeting was conducted on 8 September 2022. At that meeting, the group considered the terms of the Atambaya s 87A agreement, and directed the applicant to enter into that agreement.

The authorisation of the Cape York United #1 applicant

35    At a wider level, the applicant’s authority to enter into the Atambaya s 87A agreement stems from the re-authorisation process undertaken between April and September 2021, in respect of the claim as a whole. Ms Malyon describes this process in her 2021 affidavit, and the Court described and endorsed it in Kuuku Ya’u determination at [30]-[37] and Uutaalnganu determination at [28]-[35]. 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 an ultimate determination of native title, provided there is compliance with s 94A and s 225 of the Act. For that reason, I agreed with the State’s submission that the re-authorisation process for the applicant was lawful, and compliant with the Native Title Act.

36    Nevertheless, in Kuuku Ya’u determination at [38]-[50] and Uutaalnganu determination at [36]-[48], I explained why I considered it also 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 s 87A determinations at a more local level.

37    Those orders were made under s 84D(4) out of an abundance of caution and to avoid any doubt about the validity of the s 87A 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.

38    In each of the present determinations, the 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 ATAMBAYA NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM

39    In his 2017 report, and supplementary 2018 report, Dr Redmond presents native title connection material in relation to areas that cover the Redmond Part A area. That material is informed by the historical, anthropological and archival record, a range of environmental and linguistic data, and on-site field research and interviews with people who claimed a traditional connection to the relevant areas.

40    Dr Redmond describes how the ancestors of the native title group members used, occupied and enjoyed what Dr Redmond describes as a “lawful jurisdiction” over the determination area prior to effective sovereignty. His report describes their continuous use and occupation of the determination areas across succeeding generations to the present day, under a body of shared traditional laws and customs. The 2017 Redmond report makes clear the significant post-colonial pressures imposed on the ancestors of the Atambaya People, and the severe impacts of European colonisation.

41    Despite these impacts, the native title groups were able to “maintain knowledge of traditional places of significance, to regulate access to the Report Area to some degree and to observe and adapt many of the laws and customs which govern and reproduce their society”. Dr Redmond describes the nature of these laws and customs, and the way in which these have been passed down generation to generation. Dr Redmond describes these as including stories, traditional knowledge and a set of practices acknowledging spiritual presences in the landscape.

42    The applicant submits that the connection material, including Dr Redmond’s reports, establishes a credible basis for the proposition that the Atambaya and Gudang Yadhaykenu native title groups have maintained their connection to their respective determination areas, under their respective traditional laws and customs, since prior to sovereignty. The State supports that submission, and I accept it.

43    The 2017 Redmond report describes the Atambaya People’s traditional country as including the upland regions of Cape York in the forested highlands of the Great Dividing Range, between approximately the headwaters of the Jardine River in the north and running south to Schramm and Nimrod Creeks, east to Catfish Creek and west to the Richardson Range. Dr Redmond traces in detail anthropological records and research from the 1800s to more recent times, drawing conclusions as to the extent of Atambaya country. The report describes the Atambaya name as deriving from “a place named Atampaya, near the long-abandoned McDonnell Telegraph Station”.

44    The material supporting the Redmond Part A group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Dr Redmond and Ms Waters. Ms Waters’ work concentrates on the correct identification of apical ancestors, and is meticulous.

45    I accept these matters were the subject of thorough research, and were carefully presented to group members at a series of meetings described by Ms Malyon in the 2022 Malyon affidavit.

46    Finally, it is appropriate to set out here some of the accounts given by Atambaya group members, whose lived experiences and connections to culture and country provide the foundation for this determination. This testimony is central to establishing a credible basis for the recognition of native title. 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].

47    Mr Moses is a member of the Atambaya people through his mother Miriam Crow and her mother Bella, whose father was Peter McDonnell. He explains that he is also Atambaya through his mother’s father Moses, who was Bella’s husband, and who was the son of Willy McDonnell. He describes also having connections to Batavia, Northern Kaanju, and Taepadhighi country, and to Badu Island and Murray Island in the Torres Strait.

48    Mr Moses describes in detail his family, and his life growing up on Atambaya country. His narrative focuses on the stories of those who came before him, and the stories he had been told. He describes more recently his involvement in protecting Atambaya country, and that “[u]nder our culture, I must protect sites and places on Atampaya country”. Key figures in Mr Moses’ story are Uncle Goody and Uncle Joseph, both of whom he describes as having raised him:

Uncle Goody was a song and dance man. When I was a little boy I used to dance with him together at Injinoo. We would come together and some of the older people would make songs with their voices and use clap sticks.

…

Growing up, I was really close to Uncle Goody. My Uncle Goody taught me about Atampaya country. He would take me out with him down to Cockatoo Creek and Heathland reserve area. Uncle Goody taught me many things when I was growing up, like how to find tucker and make spears. He would teach me songs and dances for corroborree.

When I went out with Goody, he took me out to get to know Atampaya country, to identify it. I remember once that Goody’s cousin, Angus Pascoe, came along with us. Old Angus and Goody, they grew up in the bush. They told me where Atampaya country is. We went out to Cockatoo Creek and camped for a week.

My uncle Goody took me as far as the Dulhunty River, when he took me out to show me our country. The Dude River is my grandfather Moses’ country and the Dulhunty River was my grandmother Bella’s country. When they were in courtship, my grandfather Moses would swim across the Dulhunty River to see my grandmother Bella and be with her. That’s how I know that my grandfather is a Dude man and my grandmother is a Dulhunty woman. That is a croc infested river that one but the old people would put a substance on their bodies to protect them from the crocs. Uncle Goody told me this story.

There were some other old Atampaya people who were important teachers for me. Joseph McDonald was a stockman in lnjinoo and he taught me how to ride horses. He was Atampaya. He’s passed away now. Uncle Joseph helped raise me as well. I called him mum! He was like my mum, he taught me everything. He taught me how to ride a horse, go hunting, how to catch turtle and dugong when I was a little boy. He was up at injlnoo. I think he was around the same age as my mum. He taught me how to box as well.

49    Mr Moses describes passing his knowledge about country on to younger members of his family, and to younger people from different clans, including those who have Atambaya blood ties. He says:

I take younger members of my family out to Atampaya country and explain things to them …

I take these young boys and teach them about our country. I tell them stories.

50    He also describes teaching the younger generation how to make spears the traditional way, and how to fish. He describes how Uncle Goody told him that Atambaya country is their country because their ancestors were Atambaya people. He says “I can speak for all of Atampaya country”. Later in the statement, he says:

Atampaya country is my land. Under my law, it’s my country. In Atampaya country, Atampaya people are the boss. We can give permission or we can say no if people want to come onto our country.

51    Mr Moses describes Atambaya country this way:

Atampaya is inland country, we are an inland tribe. We don’t have salt water in our country. We are freshwater people. We eat catfish and barramundi. I remember when I was little, we would catch little goanna.

…

There are scar trees in Heathland. Many scar trees up around the airport at Cockatoo Creek. The scar trees are left from where the old people took bark for tools or to carry things with. As an inland tribe, Atampaya people don’t need to make canoes; the creeks are shallower, or you can spear fish from the banks. I know this because I have done it, the last time being about 5 years ago.

52    Mr Moses describes how rights to use country are exercised. He says:

Under our cultural way, when someone passes away their spirit goes back to country. The spirits are ancestors that stay in the country. They punish you if you do the wrong thing, like take something that doesn’t belong to you. They can make you sick.

There are good spirits and bad spirits. Some spirits make you sick or can play tricks. That’s why we use the underarm sweat, to help protect ourselves and others from spirits. Some elders put water on someone’s head, to protect visitors. When you go into country, or if you are going to camp on country, the person put their smell on them (usually from under their armpits). If they are someone who has not been there before or someone who is not from there, like a friend who is visiting, you put the smell on them so that the spirits recognise them.

Some people use sweat or smoke or water, but mostly it is talking to the ancestor. We ask the ancestor to protect the person because she’s new or she’s from other country and it is her first time here. Sometimes the only way to protect people is to talk to the ancestors.

Sometimes the spirits come in animals. They can come in your totem. My totem is a dingo, Utaga. I got my totem from my mother, it is our clan totem. Each of the four clans up here on the peninsula has a totem. The Angkamuthi have freshwater turtle, even though they live on the coastline, but they have freshwater further up the river. The Gudang have sand goanna and the Yadhaigana have crocodile.

It is bad if someone kills a dingo. I accidently bumped one when I was driving to Cairns. I jumped out of my car and I dragged him off the road. I talked to it. I said I was sorry, that it was my bad. The dingo comes around here, in lnjinoo as well. Sometimes when I see dingo when I’m out working I think that my ancestors are looking after me. It’s a good feeling.

When we go up to Fruit Bat and Elliot Falls to go swimming I talk to my ancestors there. I talk to my family, it is important to tell them when you are in an area. I have introduced my kids to their country. I did this by putting water on their head and talking to our ancestors when I took my kids to the falls. The last time was about two years ago.

When we did the optic cable with the Telstra man at Heathlands, we were camping and one night we were telling a story about bad spirits, the devil, and then we saw a spirit, from the veranda. We were scared so we turned off all the lights and watched it. Luckily we were sleeping two guys to a room. The next morning, we told the two men we were working with and they didn’t believe us. The next night, the white man saw it and he was scared. I think that people can learn if you take them out to the bush.

That's why it’s important when you go onto country to wet your head or put sweat on you or chuck talk, which means to say something to the ancestor of that country not to disturb you. For people who are new and have a different presence, a different smell, or if it’s a white person or someone from another clan group, it is important to do this.

Chuck talking means to talk to the ancestors from the area, so you won’t get lost or sick. Other people’s country, they might do smoke, or something like that. We chuck talk for country. We do it so that the country knows we are a traditional owners. Strangers have gotta do it so that ancestors know and don’t follow you all the way home.

53    Mr Moses describes a terrible massacre perpetrated at Bertiehaugh and attributed to Frank Jardine. He describes how this account was “passed down from generation to generation”.

54    Mr Brisbane is also a member of the Atambaya People, through his father Captain Brisbane, whose father was Jimmy Brisbane. He states that he also has connections to Kaanju country through his mother and grandmother on his mother’s side, Clara McDonald, who was Clara Pascoe before she married. Mr Brisbane describes how:

The older people give you a language name. My grandfather Jimmy McDonnell gave me my name.

My language name is Arrenja. Arrenja means warrior of the rainforest. My Grandfather also had this name, Arrenja. My language name was given to me by my grandfather. Old lady Nagi always called me Arrenja. She called my wife Wieya, after the black cockatoo, her totem.

(Original emphasis.)

55    Mr Brisbane describes his family, life, and connection to country. He describes the role that stories about country have played for him, and the importance of passing on stories to future generations. He says:

I have told my children about the story places and sites on my country. I have taken them there and introduced them to country.

…

I take [my daughter] Macy out to Atampaya country, I put water on her head, and put my underarm sweat on her, to let the spirits of our Atampaya old people smell her, and welcome her to country. I will teach her all about our Atampaya country. I know how to do this, because my uncle Goody did the same for me. The first time we went to Cockatoo on Atampaya country it was all scrub. Uncle Goody put sweat and wet my head. Then we could start working to clean the country to build the station up.

56    Mr Brisbane describes how his grandfather Larry, and Uncle Goody, taught him skills and passed on knowledge about Atambaya country:

They took me hunting on horseback, they taught me how to make a spear, how to use a spear and woomera. They taught me about Atampaya country right through.

…

Every day in the home, Grandfather Larry and Uncle Goody would sit around and talk. They would sit under the mango tree and tell stories about country and their home.

57    Mr Brisbane’s evidence makes clear the importance of respecting and protecting country, and of having native title recognised:

The country is ours; it’s important to get the land back so we can go out and live on country.

…

My old people taught me that it is important not to take more fish or food than you will eat, otherwise the ancestors won’t let you have any next time. If someone gets too greedy they won’t be able to get any more. The old people will take the fish or animals away.

…

It is important to protect sacred sites and places because if we don’t we can get sick, or our families can get sick.

58    Ms Nona is an Atambaya woman through her mother Cecilia, and her mother Elsie Brisbane, who was also known as Elsie McDonnell. She has connections to Angkamuthi and Yadhaigana through her father Daniel Ropeyarn, and Gudang Yadhaykenu through her mother’s father Nicholas Wymara, who was a Gudang man. She has family connections to Moa Island and Murray Island in the Torres Strait, through her grandmother and grandfather.

59    Ms Nona describes her family and her life story. She describes learning from her mother and from Walter Moses’ mother Nagi, whose brother she knew as Granddad Goody:

My mum taught me about Atampaya country and culture, and Nagi taught her about Atampaya country because mum was only 5yrs old when her mum, Elsie died. Mum still teaches me things every now and then. She is my elder.

…

Nagi and her brother Goody told me about Atampaya country as well. They told me about story places, for example the serpent story. It is more appropriate that my mum speaks about this story.

60    In explaining the importance of being able to access and use country, Ms Nona says:

When we go out to anywhere on my country we always say to the spirits that we are here to visit and that we are related, that they are our ancestors and then nothing bad happens. If you go on country, you will sense there is someone around there. When my husband goes hunting, even with his Maori friend, they talk to the spirits where they go. When I go to Cockatoo Creek I speak to the ancestors. I let them know I am there and that I am looking for food. I tell them that I am family.

…

When people want to go camping on country, I tell people the right way to behave on country, to respect our land. If we find out that someone did not behave, we find them and tell them off.

61    She explains the need to protect special and sacred places of traditional significance:

Culturally, we have to look after the country, especially sacred places. It is not a choice. This is something our elders taught us we have to do.

62    These extracts are but a sample of the material before the Court. I am satisfied there is ample, persuasive and compelling connection material before the Court.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

63    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.

64    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)    all those set out in sub-s 87A(1)(c) who are parties to the proceeding are also parties to the s 87A agreement; and

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

65    Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application.

66    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

67    As the applicant sets out at [53]-[57] 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 parties to the proceeding, after appropriate notification.

68    On 22 September 2022 the Court made orders in relation to non-compliance by a respondent, the Cook Shire Council, with respect to the timetabling orders for execution of the s 87A agreements for each of the Redmond Part A determinations. Reasons for those orders were given the following day: see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 10) [2022] FCA 1129. Subsequently, and in compliance with the further orders of the Court, the Cook Shire Council joined other active non-State respondents in the proceeding in signing each of the three Redmond Part A s 87A agreements.

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

69    For the reasons set out at [64]-[77] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

70    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the Atambaya, Gudang Yadhaykenu, or NCY#2 identified parcels 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

71    In reasons for a determination in favour of the Nanda People in Western Australia, I set out my approach to the question of “appropriateness” and the Court’s function: 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.

72    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 three determinations, including Atambaya. The respective group members have had carefully planned opportunities to participate in decision-making about the proposed s 87A agreements, and especially about the boundary and group descriptions. Group members have been well supported to participate, if they choose to do so. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests.

73    The Court affords considerable weight to the position taken by the State in supporting the applications for determination of native title, on behalf of all members of its community. I described the importance of the State’s role in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 10) [2022] FCA 1129 at [6], [56]. I adhere to those views. 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 acknowledges its dedication to assisting group members to secure determinations of native title wherever possible. Other respondents to the Cape York United #1 claim have also derived considerable benefit from the tremendous contribution by the State, which has relieved those respondents of a great deal of work. The Court can be confident the State has reached a carefully considered view before agreeing to these determinations.

ORDER SOUGHT UNDER S 199C(1A)

74    The State submits an order pursuant to s 199C(1A) of the Native Title Act should be made, directing the Registrar not to remove the details of the Batavia indigenous land use agreement (QI2012/120) (Batavia ILUA) from the Register of Indigenous Land Use Agreements (Register). The Batavia ILUA is an area agreement whose details have been on the Register since 8 May 2013. The State submits this order should be made out of an abundance of caution, given the ongoing operational nature of the ILUA. The applicant’s written submissions do not deal with this issue, but it appears that the applicant supports the State’s submission.

75    Section 199C(1A) sets out three requirements for the making of an order. Section 199C(1A) provides:

(1A)    If:

(a)     the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and

(b)     the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and

(c)      the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement;

the Federal Court may order the Registrar not to remove the details of the agreement from the Register.

76    As the State submits, by sub-s 199C(1)(b) the Registrar’s duty to remove an ILUA can apply to area agreements. That sub-section provides:

(1)     Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

    …

(b)     in the case of an agreement under Subdivision C of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and any of the persons who, under the determination, hold native title in relation to the area is not a person who authorised the making of the agreement as mentioned in:

(i)     if the application relating to the agreement was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 203BE(5)(b); or

(ii)     if the application relating to the agreement included a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met—that paragraph[.]

77    The State submits that:

(a)    with respect to sub-s 199C(1A)(a):

(i)    it is the State’s primary position that the Batavia ILUA is not liable to be removed from the Register because the native title parties to that ILUA are identified as three native title groups, including the Atambaya People, being the same named group as proposed to be recognised in this determination;

(ii)    however, the State acknowledges that there has been no authority considering when s 199C(1)(b) may be engaged;

(iii)    in circumstances where the proposed group description of the Atambaya native title group includes changes to group composition from that recognised in the Woosup and Anderson determinations, and the State is not privy to any materials regarding the original authorisation of the Batavia ILUA prior to its registration in 2013, the State supports, and presses for, the proposed s 199C(l A) order out of an abundance of caution; and

(iv)    in the event that the Court considers it cannot make an order under s 199C(lA) without ruling on the construction of s 199C(l)(b) and/or the facts surrounding the original authorisation of the Batavia ILUA, the State submits that the s 87A agreement ought to be made without the proposed s 199C(1A) order and that part of the application seeking that order under s 199C(lA) be adjourned for consideration at a later time;

(b)    with respect to sub-s 199C(1A)(b), the requirement is met, because it is the Atambaya native title group that seeks the order under s 199C(1A); and

(c)    with respect to sub-s 199C(1A)(c), the requirement is met, because the Atambaya native title group passed a resolution at the Atambaya authorisation meeting on 8 September 2022, accepting the terms of the Batvia ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that the ILUA not be removed from the Register.

78    Broadly, s 199C is intended to allow for the continuity of obligations assumed under, and entitlements conferred by, (relevantly) an area ILUA where the group identified by this Court as the native title holders for that area are prepared to agree to continue to be bound by that ILUA, and where there is sufficient overlap between those native title holders who authorised an ILUA and those who are recognised in a determination. I do not consider it is necessary in the present circumstances of a s 87A agreement for the Court to embark on any detailed consideration of what level of overlap is strictly required. It is a facultative provision.

79    Given the resolution passed by the Atambaya People, I am satisfied it is appropriate for the order sought by the State to be made, out of an abundance of caution. In a complex and novel claim such as this, where the steps to agreement take so long and involve many potential pitfalls, any doubts which can be avoided or accommodated by the making of orders should be resolved by the Court, so that the central objectives of the parties’ agreement under s 87A can be achieved. As many justices of this Court have observed, the resolution of claimant applications by consent is a central feature of this legislative scheme.

NOMINATION OF A PRESCRIBED BODY CORPORATE

80    A separate PBC has been nominated under s 56 of the Native Title Act for each of the Atambaya, Gudang Yadhaykenu and NCY#2 identified parcels determination areas. In the 2022 Malyon affidavit at [30]-[32], [49]-[50] and [111]-[112], 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 Court is satisfied that the nomination of each of the PBCs is appropriate.

CONCLUSION

81    The Cape York United #1 claim is a highly complex proceeding, with many moving parts and covering many areas. Each determination made by the Court can only occur after a careful and precisely timetabled series of steps have been taken, those steps mostly being the responsibility of the applicant and the State and their respective lawyers. Many different native title holding groups must be involved, and many neighbours must agree on matters that can be difficult to agree upon, because matters affecting country are deeply felt.

82    However, there is a tremendous amount of goodwill and cooperation amongst the parties to the proceeding, and the Court has been greatly assisted by their respective efforts. Like the ones which have gone before it, the Atambaya determination is a testament to the dedication of a significant number of individuals: in particular the Court acknowledges the members of the applicant, and their committed and highly capable legal representatives, anthropologists, and other expert advisers. The Court recognises the critical role played by the State of Queensland, its officers and legal representatives, whose contributions to the continued progress of determinations within the Cape York United #1 claim area have been undertaken with the highest level of skill and commitment. The Court is grateful too for the cooperation and timely participation of all other parties to the proceeding, their legal representatives and other advisers.

83    The Court commends the mediation and case management work of National Judicial Registrar Stride. These determinations would not have been possible without her contribution. The Court thanks all its staff for their work behind the scenes in relation to mediations, hearings, travel, communications and preparation of orders and reasons. This work is just as vital to the outcome today as any of the more visible work a Judge might do. In these reasons, I would like to pay particular tribute to the work of Ms Stephanie McCann-Hoey, whose comprehensive knowledge of the Cape York United #1 claim, and whose attention to detail and dedication, have been critical to the Court’s work.

84    These determinations have been achieved despite the effects of the COVID-19 pandemic, which has had an impact on the lives and work of all concerned in recent years. The ability of the parties to achieve milestones in the timetables leading to these determinations in spite of such adversity is to be commended.

85    It bears repeating that each and every determination recognising native title is important. While there may be many determinations around Australia each year, there is only one for this country, the country of the Atambaya People. They are to be thanked for their patience and persistence in working through what the Native Title Act requires. Today is their milestone in that long journey. For First Nations peoples who have long been denied any recognition by Australian law of their deep and abiding connection to country, the Court’s orders today are another step in their struggle to regain some control over 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:        6 October 2022

SCHEDULE OF PARTIES