FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 12) (Gudang Yadhaykenu determination) [2022] FCA 1177

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

THE COURT ORDERS THAT:

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

BY CONSENT THE COURT ORDERS THAT:

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

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 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.

5.    Native title exists in the Determination Area.

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

7.    Subject to orders 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the Determination Area 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.

8.    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.

9.    The native title rights and interests referred to in order 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 

10.    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). 

11.    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). 

12.    The relationship between the native title rights and interests described in order 7 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:

13.    The native title is held in trust.

14.    The Gudang Yadhaykenu Native Title Aboriginal Corporation (ICN: 9801), 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    vii

Schedule 2 – Other Interests in the Determination Area    viii

Schedule 3 – External Boundary    xii

Schedule 4 – Description of Determination Area    xiv

Schedule 5 – Areas Not Forming Part of the Determination Area    xv

Schedule 6 – Map of Determination Area    xvi

SCHEDULE 1 – NATIVE TITLE HOLDERS

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

(a)    Wymarra (Wymara Outaiakindi);

(b)    Tchiako (aka Chaiku/Chakoo) & Baki (siblings);

(c)    Peter Padhing Pablo;

(d)    Mathew Charlie Gelapa;

(e)    Annie Blanco;

(f)    Ila-Ela;

(g)    Woonduinagrun & Tariba (parents of Tom Redhead);

(h)    Charlotte (spouse of Billy Doyle and Wilson Ware);

(i)    Pijame and Daudi (sisters);

(j)    Mother of Thompson Olwinjinkwi; or

(k)    Nara Jira Para.

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 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.

2.    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.

3.    The rights and interests of Cook Shire Council:

(a)    under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be its Local Government Area:

(b)    as the:

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

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

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

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

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

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

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 3(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 3 and paragraph 4 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 3(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.

4.    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.

5.    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.

6.    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:

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

(ii)    the Fisheries Act 1994 (Qld);

(iii)    the Land Act 1994 (Qld);

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

(v)    the Forestry Act 1959 (Qld);

(vi)    the Water Act 2000 (Qld);

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

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

(ix)    the Planning Act 2016 (Qld);

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

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

7.    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.

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

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    coastal waters;

(d)    stock routes;

(e)    beaches; and

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

9.    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 intersection of the south-east corner of Lot 22 on SP269684 and the north-east corner of Lot 21 on SP269684 and extending west along the northern boundary of Lot 21 on SP269684 until the intersection with the northern boundary of Lot 20 on SP269684, also known as Captain Billy Landing Road, then generally westerly along the northern boundary of that lot, until the intersection with the southern boundary of Lot 13 on SP269684; then generally westerly along the southern boundary of that lot, until the intersection with the eastern boundary of Lot 26 on NPW404; then generally northerly along the eastern boundary of that lot and the Great Dividing Range until the intersection with the southern boundary of the Northern Cape York Group #1 determination (QCD2014/017) at Latitude 11.592880° South; then due east along the southern boundary of that determination until the intersection with the eastern boundary of Lot 22 on SP269684, and onwards until the High Water Mark; then southerly along that High Water Mark until the intersection with the eastern prolongation of the northern boundary of Lot 21 on SP269684; then due west along that prolongation back to the commencement point.

(All Subject to Survey)

Data Reference and source

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

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

Reference datum

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

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 table immediately below, and depicted in light blue on the Determination map in Schedule 6, to the extent those areas are within the External Boundary and are not otherwise excluded by the terms of Schedule 5.

SCHEDULE 5 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the Determination Area as described in 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 paragraph (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 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.

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 Gudang Yadhaykenu People. This determination is being made on the same day as a determination recognising the native title of the Atambaya 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.

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 Gudang Yadhaykenu People, and the traditional connection of the Gudang Yadhaykenu People to the determination area. Mr Meun (Shorty) Lifu, a senior Gudang Yadhaykenu man who is now in his seventies, describes his connection to the spirits and resources of his country:

When I am out on my country, I talk to the country in language. I talk to the spirits and tell them I’ve come to the country and for them to look after me. If I bring a stranger then I introduce the stranger to the country and spirits. I rub some of my sweat or clothes on to the stranger so the spirits can recognise them.

There’s good fishing all around my country; saltwater and freshwater. I go fishing as often as I can, at least once a week and if the weather is good, more. I fish on Yadhaigana/Gudang country.

…

The blue and white flowers on the tea tree give us a sign so that we know that fish is really fat. For freshwater turtle too, we look at the flower; the flowers know that the turtles are fat now. Porcupine is a compass for dugong; when you find a porcupine here, you know a dugong is around.

We can take things from the country, like food and medicines. We can also trade things from the country. Trading has been going on for a long time.

…

When we go fishing we have to talk to the spirits. If we want to fish, we talk to them and let them know we want throw a line in. After we do this, the fish come out for us. When we catch them, we give the first one to Bulla Bulla [a kind of spirit]. When we catch a fish on country, we have to throw the first fish we catch behind us into the bush. Over our head, without looking back, we must throw it over and not look where we threw it.

…

We must not take too many of something from the country. For example, we cannot take too many fish. We must not be wasteful. That would be disrespecting the land, which is against our rules.

If someone went out there and disrespected the land, for example if they take too many fish and don't eat all those fish, if they waste them, then they won’t get anything; there will be nothing for them. If we want to have fish next time, it is important not to waste fish.

…

When you chuck talk to the spirits, the winds die right down. When you go to a strange place, you always chuck talk because the spirits will listen to the language. If you break the law, they will pull a big rain and mosquito on you, and they will make the sea so rough you got to pull up the anchor and go. I talk to the country like to the people in the bush. I talk to them, and they will come and help.

(Original emphasis, additions to text in original.)

5    The Court’s orders, and the long overdue recognition by Australian law, will help the Gudang Yadhaykenu People preserve and protect their country, as they have done since time immemorial, so that the rules and knowledge of the Gudang Yadhaykenu People can continue to be passed down to future generations.

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 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.

8    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.

9    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 Gudang Yadhaykenu s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Gudang Yadhaykenu Native Title Aboriginal Corporation was nominated as the prescribed body corporate (PBC) for the Gudang Yadhaykenu 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.

10    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.

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

(a)    a witness statement of Meun (Shorty) Lifu dated 17 December 2018 and filed 21 September 2022;

(b)    a witness statement of Trevor Lifu dated 17 December 2018 and filed 21 September 2022;

(c)    apical reports of Ms Waters dated 22 July and 30 August 2021 and filed 21 September 2022 regarding Olwinjinkwi (mother of Thompson);

(d)    an apical report of Ms Waters dated 21 July 2021 and filed 21 September 2022 regarding Nara Jira Para;

(e)    an apical report of Ms Waters dated 27 July 2021 and filed 21 September 2022 regarding Pijame and Daudi;

(f)    an apical report of Ms Waters dated 22 January 2021 and filed 21 September 2022 regarding Chaiku Tchiako and Baki; and

(g)    an apical report of Ms Waters dated 22 January 2021 and filed 21 September 2022 regarding Charlotte Ware.

12    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

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

14    The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made 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.

15    Relevantly to the present determination, the Gudang Yadhaykenu 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 Gudang Yadhaykenu 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

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

(a)    Peter (Pahding) Pablo;

(b)    Wymarra (Wymara Outaiakindi);

(c)    Mathew (Charlie) Gelapa;

(d)    Annie Blanco;

(e)    Ela/Illa (father of Tommy Dodd, Polly Polly and Tommy Somerset);

(f)    Woonduinagrun and Tariba (parents of Tom Redhead);

(g)    Charlotte Ware; and

(h)    Queen Baki and Chief Tchiako/Tchiaku/Chiaku.

17    The applicant submits that these descriptions in Woosup and Anderson are amended in the Gudang Yadhaykenu s 87A agreement in order more accurately to identify the individual concerned, to add specificity to descriptions of individuals, and to add references to individuals subsequently identified as apical ancestors. Accordingly:

(a)     Peter (Pahding) Pablo [at 16(a), above]—the item is changed to better describe the name of the individual as “Peter Padhing Pablo”;

(b)     Mathew (Charlie) Gelapa [at 16(c), above]—the item is changed to better describe the name of the individual as “Mathew Charlie Gelapa”;

(c)     Ela/Illa (father of Tommy Dodd, Polly Polly and Tommy Somerset) [at 16(e), above]—this item is changed to better describe the individual as “Ila-Ela” and to remove children’s names;

(d)     Charlotte Ware [at 16(g), above]—this item is changed to “Charlotte (spouse of Billy Doyle and Wilson Ware)” to remove the married surname of the apical concerned, and to identify both spouses for clarity;

(e)     the addition of “Pijame and Daudi (sisters)” because they have been identified as Gudang Yadhaykenu apical ancestors;

(f)     the addition of “Mother of Thompson Olwinjinkwi” because [this] person has been identified as a Gudang Yadhaykenu apical ancestor;

(g)     the addition of “Nara Jira Para” because this person has been identified as a Gudang Yadhaykenu apical ancestor;

(h)     Queen Baki and Chief Tchiako/Tchiaku/Chiaku [at 16(h), above]—this item is changed to better describe the individuals as “Tchiako (aka Chaiku/Chakoo) & Baki (siblings)” to ensure consistency with historical records.

18    These amendments to the descriptions of the Gudang Yadhaykenu native title group were approved by the Gudang Yadhaykenu native title group on 2 June 2021. 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) and (h) above will not result in any changes to the composition of the native title holding group;

(b)    the amendment in (f) above will not entail any known impact on group composition because Thompson’s daughter Lena Ware (nee Thompson) married a descendant of “Woonduinagrun & Tariba (parents of Tom Redhead)”, but that there may be other (currently unknown) descendants of Thompson and, if so, those descendants will be included in the native title holding group as a result of the change;

(c)    the amendment in (e) above will have the effect of the descendants of Daudi, including her son Billy Williams, being included in the native title holding group. The applicant submits, with reference to a “Summary Report on Pijame and Daudi in relation to the Redmond Report Area” annexed to the King affidavit, that the descendants of Pijame were previously included through her daughter’s marriage to “Ila-Ela”; and

(d)    the amendment in (g) above will result in the descendants of Nara Jira Para being included in the native title holding group.

19    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.

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

AUTHORISATION

The Gudang Yadhaykenu section 87A agreement

21    Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Gudang Yadhaykenu 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 Gudang Yadhakenyu and their neighbours; and the process to settle group composition, by identification of apical ancestors.

22    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].

23    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.

24    Following the provision of the putative boundary descriptions to the State, the CYLC facilitated consultations with the Atampaya 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.

25    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.

26    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 as to 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.

27    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.

28    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.

29    Members of the Gudang Yadhaykenu group attended these meetings, particularly the boundary meeting on 2 June 2021, and agreement was reached as to boundaries.

30    As I have explained, the apical ancestors identified in the Gudang Yadhaykenu s 87A agreement differ from the description of the group described in Woosup and Anderson. The process for the finalisation of the Gudang Yadhaykenu group description is described in the 2022 Malyon affidavit at [92]-[94]. As Ms Malyon explains, the group description for the Gudang Yadhaykenu native title group was the subject of preliminary meetings and consultations held on 17 March 2021, 27 April 2021 and 2 June 2021. The amended group description for Gudang Yadhaykenu was approved by the Gudang Yadhaykenu native title group on 2 June 2021.

31    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 Gudang Yadhaykenu determination. The Gudang Yadhaykenu authorisation meeting was conducted on 16 August 2022. At that meeting, the group considered the terms of the Gudang Yadhaykenu s 87A agreement, and directed the applicant to enter into that agreement.

The authorisation of the Cape York United #1 applicant

32    At a wider level, the applicant’s authority to enter into the Gudang Yadhaykenu 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.

33    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.

34    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.

35    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 GUDANG YADHAYKENU NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM

36    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.

37    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 Gudang Yadhaykenu People, and the severe impacts of European colonisation.

38    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.

39    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.

40    The 2017 Redmond report describes the Gudang Yadhaykenu People’s traditional country as including the north-eastern and parts of the north-western coast of Cape York, extending also inland to the headwaters of the Jardine and McHenry rivers. It includes the traditional country of the descendants of ancestral Gudang people, which extended across the most northerly parts of Cape York. The report traces in detail anthropological records and research from the 1800s to more recent times. The report describes the Gudang and Yadhaykenu (or “Yadhaigana”) as two groupings that are extensively intermarried and that commonly act as a single entity in decision-making processes. Quoting George Pausa in 2012:

I am Gudang Yadhaigana; they’re one mob, like me and George [Pausa] here… Yadhaighana and Gudang, they run down as far as Captain Billy, that’s Yadhaigana that’s how far our Dream go. If you go right to Shelburne Bay that’s my grandmother. Gudang go as far as Escape River then it’s Yadhaighana. We mix, through intermarriage, one mob, like Wymarra Pausa .. all the Blancos in Yadhaighana country.

I can use any part of Gudang Yadhaighna country, don’t have to ask anyone to use all the east coast … or to Red Island Point.Gudang Yadhaighana, that’s where that old fella Pablo, it was Gudang before but he join that Yathaighana because the Whitesand people walking up here that’s why he join that name together now. Half from Whitesand Wuthathi he come up Injinoo.

(Footnotes omitted, additions to text in original.)

41    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.

42    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.

43    Finally, it is appropriate to set out here some of the accounts given by Gudang Yadhaykenu 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].

44    Meun (Shorty) Lifu is a member of the Gudang Yadhaykenu through his father’s mother, Pul Pul. Pul Pul was a Gudang Yadhaykenu woman, described by Mr Lifu as the daughter of Ella and Illa. Mr Meun Lifu describes his life story by reference to his family, and the country where he grew up. His story makes clear the great significance his family, culture, and country have for him, and that these matters are inseparable. He describes his youth in and around Injinoo, and places an emphasis on learning important stories:

When we were on school holidays, we would ride horses up to Somerset (near the tip of the Cape) and camp there. We sat in the house with the old fella Willy Somerset and the old lady Ada Somerset. Old Willy told me the Dead Man’s secret.

It is an important story for us about the area at Somerset and the time when Frank Jardine was around at Somerset, it is a secret story, so it is something that I cannot tell here. I have told Trevor Lifu that story. It is important for the younger ones to know.

45    He also describes his early twenties, working around Coen and the Blue Mountains, again by reference to learning stories about country:

When I was young and worked around Coen and Blue Mountains, I drove cattle around that area, Shelburne Bay, Olive River and down around Coen. When I was working around Shelburne Bay area, I spoke to an old fella, George ‘Brown Snake’. I think his last name was Liza. Old George knew me and knew that my great grandmother, Ella, was from around that area as well. He knew that Ella came from the Olive River area and my great great grandfather Illa came from further up, from Yadhaigana country. He also told me stories about the country around Shelburne Bay. I think George is related to me blood way. George was an Olkola man and died long time ago, not sure when.

46    Mr Meun Lifu describes how he still goes out on country, particularly to go fishing. He describes taking his kids and grandchildren out with him on country, and that “I show my boys around and take them fishing”.

47    He also describes his People’s rights to access and use country, and that “[i]f someone wants to do something on Yadhaigana country, they have to come and speak to Yadhaigana people”. He describes the older people as the ones who need to be talked to when going to a new place, and the elders as the ones who decide the law. He recounts how the older people told him that his country can only be used in accordance with:

rules handed down from my ancestors and from their ancestors. These rules started in the Dreaming time, when the world started.

48    Trevor Henry Lifu is a member of the Gudang Yadhaykenu People through his father and his father and their ancestor Ella. He also has connections to Taepadhighi country through his mother, who was a Taepadhighi woman, but describes taking his country, and rights with respect to that country, through his father. He describes his knowledge of country as being passed down to him from his father, and describes passing that knowledge on to his own children:

When I was young, my father took me and my mum down to Shelburne Bay. I think we have a connection to that country through my connection to a Wuthathi ancestor, Ella. When we went there, we had big rock oysters to eat for the weekend. My father knew where to find them and it was just us, no one else came with us. It was just my mum and dad and family. He could take them because of his connection to that area. He took us north from there, right up to the Escape River area and told us about our country as we went. He told us how he planted a mango tree and a lemon tree behind the old airport, the old army airport near Escape River.

My children, they get country from me. My son Meun has just passed his halfway point for hunting, to be an adult. He is about 14 years old now. I will finish teaching him his hunting skills in the next year or so, when he is 15. He can go out by himself from then on. I take him out wherever I go hunting. I go to freshwater and saltwater country. In our culture, he is pretty much a man at age 15.

Some of my other sons have passed away, but Kasmero, he is now 23 or 24 years old. I taught him about country and how to hunt as well.

49    Mr Trevor Lifu describes growing up in and around Bamaga, Coen and Cairns. A feature of his account is the times he spent fishing with his uncle Shorty. He describes in great detail the techniques and knowledge passed on to him by his uncle for dugong hunting, and how he now is passing those techniques and knowledge on to his own son. He also describes learning the rules about country from his uncle Shorty and other old people, and reiterates that the Gudang Yadhaykenu People have responsibility for their country.

50    He describes in detail the borders of his country, and of his neighbours. He says:

When we look at the Cape, it could be considered like an anthill. We don’t want the Cape to break down, so you put the chicken mesh around to keep it strong. We could be from here, there and everywhere because our people are all married in so we have a lot of connections, but the chicken mesh tells the stories, deep down underneath the grass roots. The chicken mesh is blood connections and story, song and dance. It means the people are connected but so are our stories and songs and dances.

51    He also describes rights to access and use resources on country, including hunting, collecting tree sap to sell and to make spears, and collecting seeds. These descriptions are interwoven with stories from Mr Trevor Lifu’s own experiences on country, as well as stories passed on to him by his father and old people. He describes story places on country, to which access is restricted. He also gives detailed explanations about different rights to use resources on country, rules and responsibilities around protecting and looking after country, and about rights to access country. He explains the large number stories relating to the country that have been passed down generation to generation. Talking about access to country, he explains:

Under our culture, we believe that there are spirits in the land. Some of the spirits are our ancestors. We have to talk to our ancestors when we go to country. That’s a rule we follow. I learned this from Uncle Shorty.

If we go to places where there is a spirit, you feel funny and the spirits might send you a sign, for example in the form of an animal. There are also lights that flicker and get bright then dark, that is a spirit. When I see the signs or spirits I usually feel good.

Sometimes there are bad spirits. Different kinds of lights will show different kinds of spirits. If the light is blue or green then it is a good spirit. If the light is red, then it is a bad spirit.

If I come across a bad spirit, I leave that place. I will say something to the spirit and leave something for it, like a fish or some pig, and I will go. If it’s a good spirit, I will stay. I sing out to the ancestors and talk to them to let them know that I am there, so the ancestors will look after me.

52    Mr Trevor Lifu ends his statement by reiterating the importance of cultural rules relating to country for the Gudang Yadhaykenu People. He says:

I learned our cultural rules from Uncle Shorty, my father and other leaders who I grew up with. I believe they were taught them. These rules have been handed down for a long time. I believe they are the same rules from before white people came. It is important that we maintain our rules because that governs who we are. The laws have come down from the start of time, from when men gathered around fire places to decide what was right.

53    There is ample, persuasive and compelling connection material before the Court.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

54    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.

55    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.

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

57    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

58    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.

59    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

60    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.

61    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the Atampaya, 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

62    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.

63    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 Gudang Yadhaykenu. 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.

64    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.

NOMINATION OF A PRESCRIBED BODY CORPORATE

65    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

66    The Cape York United #1 claim is a highly complex proceeding, with many moving parts and covering many areas. It has had its challenges, with no doubt more to come. 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 Gudang Yadhaykenu 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.

67    The Court commends the work of National Judicial Registrar Stride in the processes that have facilitated the Court’s decisions today. 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.

68    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.

69    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 Gudang Yadhaykenu People. This is their day. For those who have long been denied any recognition by Australian law of their deep and abiding connection to country, the Court’s orders today are one more step in the struggle of this country’s First Nations peoples 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