FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 13) (NCY#2 independent parcels determination) [2022] FCA 1178

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.    A determination of native title was made in favour of the Northern Cape York #2 Native Title Claim Group on 20 June 2014 (Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629) (the NCY#2 Determination) in relation to an area of land and waters in the north-west of Cape York Peninsula, between the Ducie and Mission Rivers.

B.    Schedule 2 of the NCY#2 Determination expressly excluded the following areas from that determination on the basis that they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth) due to being subject to Previous Exclusive Possession Acts within the meaning of 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) applied:

(i)    Lot 9 on CP843317;

(ii)    Lot 2 on WP28;

(iii)    Lot 3 on WP28;

(iv)    Lot 1 on WP4; and

(v)    Part of Lot 4 on SP252512

(the NCY#2 Identified Parcels).

C.    The Native Title Determination Application was filed on 11 December 2014 and includes all undetermined areas (save for some specified types of tenure which were excluded) within the external boundaries of the Cape York Representative Aboriginal/Torres Strait Islander Body Area.

D.    This Determination relates to those areas listed in note B above, which were expressly excluded from the NCY #2 Determination, and which may be claimed as part of the Native Title Determination Application.

E.    The parties have reviewed the NCY#2 Identified Parcels as part of negotiating consent determinations in this proceeding and have reached agreement that:

(i)    native title has been wholly extinguished over Lot 1 on WP4 and Lot 3 on WP28, which has the effect that they were excluded from the Cape York United #1 native title claim;

(ii)    in relation to the balance of the NCY#2 Identified Parcels, there is insufficient information to establish native title has been extinguished due to previous exclusive possession acts; and

(iii)    therefore, native title rights and interests are capable of being recognised with respect to all NCY#2 Identified Parcels, except Lot 1 on WP4 and Lot 3 on WP28.

F.    The Applicant agrees that any areas which fall within the terms of Schedule 4 of this Determination 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 3 and depicted in the map attached to Schedule 5 to the extent those areas are not otherwise excluded by the terms of Schedule 4 (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 Northern Cape York #2 Native Title Holders described in Schedule 1 (the Native Title Holders).

7.    Subject to orders 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 3 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.

8.    Subject to orders 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 3 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.

9.    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.

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

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

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

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

(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:

14.    The native title is held in trust.

15.    The Mokwiri Aboriginal Corporation (ICN: 7972), 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    x

Schedule 3 – Description of Determination Area    xv

Schedule 4 – Areas Not Forming Part of the Determination Area    xvi

Schedule 5 – Map of Determination Area    xvii

SCHEDULE 1 – NATIVE TITLE HOLDERS

1.    The Native Title Holders are the Northern Cape York #2 Native Title Holders, being the persons descended from the following apical ancestors:

(a)    Jimmy Pine River;

(b)    Ardirramina (father of Toeboy);

(c)    Bosen;

(d)    Tjantayn;

(e)    Henry Mailman Brown;

(f)    Peter Cockatoo;

(g)    Mammus Aorotwan;

(h)    Charlie Hall;

(i)    York Downs Mammus aka Olkolkon;

(j)    Charlie Fletcher;

(k)    Nuarutty;

(l)    Jack Batavia aka Jack Bellyfull;

(m)    Bob Andoran (the father of Catfish/Joseph Andoran);

(n)    Douglas;

(o)    Mary Price;

(p)    Bumu, Mother of Condia;

(q)    Grace;

(r)    Bullock;

(s)    Alec Red Beach;

(t)    Peter;

(u)    Archie;

(v)    Charlie Cooktown;

(w)    Lorna;

(x)    Billy Barkley/Wombi;

(y)    Maffra Reid;

(z)    Cockatoo;

(aa)    Mona;

(bb)    Victor;

(cc)    James Andrews; or

(dd)    Billy Bigfoot (Miller).

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)    PNG Gas Pipeline ILUA – Cape York Region (QI2006/043) registered on 15 May 2008;

(b)    Mapoon Aboriginal Shire Council and Northern Cape York #2 ILUA (QI2014/038) registered on 27 October 2014; and

(c)    Northern Cape York Group #2 and Ergon Energy ILUA (QI2014/036) registered on 27 October 2014.

2.    The rights and interests of Telstra Corporation Limited (ACN 051 775 556) as the holder of term lease (0/238571) for communication purposes over Lot 9 on CP843317.

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

(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, including but not limited to trustee lease (719754611) over Lot 26 on SP278077.

4.    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.

5.    The rights and interests granted or available to Alcan South Pacific Pty Ltd (ACN 009 726 078) (and any successors in title) under:

(a)    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:

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

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

(b)    Mining Lease No. 7031.

6.    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 6(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 6 and paragraph 7 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 6(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.

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

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

9.    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).

10.    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.

11.    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.

12.    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 – DESCRIPTION OF DETERMINATION AREA

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 5, to the extent those areas are above the High Water Mark and are not otherwise excluded by the terms of Schedule 4.

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 5:

* 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 5:

SCHEDULE 4 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters do not form part of the Determination Area as described in Part 1 of Schedule 3 and Part 2 of Schedule 3:

1.    The land and waters described as Lot 1 on WP4, on the basis that at the time the Native Title Determination Application was made, Lot 1 on WP4 was subject to one or more 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 none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied to disregard that extinguishment.

2.    Those land and waters in the Determination Area as described in Part 1 of Schedule 3 and Part 2 of Schedule 3 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).

3.    Specifically, and to avoid any doubt, the land and waters described in paragraph (2) 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), including but not limited to Lot 3 on WP28.

SCHEDULE 5 – 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 native title over certain identified parcels 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 (Coconut determination). Those identified parcels are within the external boundary of the area determined in the Coconut determination. This determination, made on the papers, is made on the same day as determinations recognising the native title of the Atambaya People and Gudang Yadhaykenu People.

2    The recognition of native title over these individual parcels has been delayed for some time. This is the first of several determinations on the papers which will remedy a patchwork of undetermined parcels of land lying within the Cape York United #1 claim area, over which native title could not be recognised at the time of earlier determinations. For case management purposes, the present individual parcels fall 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.

3    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

4    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, including the individual parcels of land identified in this determination.

5    For this determination, the applicant relied on the affidavit of Kirstin Donlevy Malyon affirmed and filed 21 September 2022 (2022 Malyon affidavit).

6    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 authorising the NCY#2 s 87A agreement, and ensuring as many descendants as possible were notified of the meeting. She deposes to how the Mokwiri Aboriginal Corporation was nominated as the prescribed body corporate (PBC) for the NCY#2 identified parcels 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.

7    In the Coconut determination, the Court expressed its satisfaction about the connection material before it (at [53]):

I am satisfied having regard to the anthropological reports in evidence that the nature and extent of the native title rights and interests in relation to the land and waters of the Determination Area are these.

8    Greenwood J set out a description of those rights and interests (at [54]-[56]). His Honour described the anthropological reports in evidence as follows (at [22]):

I have had the benefit of reading the following reports: A Northern Cape York Peninsula Regional Society, Dr Anthony Redmond, June 2012; The Northern Cape York #2 Native Title Claim Connection Report, Dr Brendan Corrigan, 9 August 2012; NCYP #1 and #2 Native Title Claims: Supplementary Report, Dr Anthony Redmond, 26 June 2013; Summary of Evidence and Opinions on Northern Cape York #2 Anthropology Research, Dr Brendan Corrigan, 30 May 2014 (Annexure “BMC2” to Dr Corrigan’s affidavit affirmed 30 May 2014); and Northern Cape York Peninsula Regional Aboriginal Society: Summary of Evidence and Opinion, Dr Anthony Redmond, 21 May 2014 (Annexure “AJR2” to Dr Redmond’s affidavit affirmed 26 May 2014).

(Original emphasis.)

9    The applicant submits that:

The NCY#2 IP Determination area is entirely surrounded by the determination of native title made by the Court in Coconut. The connection of the NCY#2 Native Title Group to the NCY#2 IP Determination area is supported by inferences that arise from the determination in Coconut.

10    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.

11    I have described the procedural history of the Cape York United #1 claim in the two other determinations made today. It is not necessary to repeat it here.

THE AGREED GROUP DESCRIPTION

12    The group description for the NYC#2 group reflects the group description set out in the Coconut determination. I accept the State’s submission that:

the proposed group composition for the NCY#2 Native Title Group is the same as that recognised in Coconut for the area wholly surrounding the NCY#2 [independent parcels] determination area.

13    That group description was approved in final form by the NCY#2 group at an authorisation meeting on 5 September 2022.

AUTHORISATION

The NCY#2 section 87A agreement

14    As I have explained in the two other determinations made today, for the larger areas of the Cape York United #1 claim, a Boundary Identification Negotiation and Mediation or ‘BINM’ process was adopted in April 2020 to deal with the reality that distinctly identifiable groups hold interests in that area: see also 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 [18], [25]-[26] and 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 [19], [23]-[24].

15    That BINM process did not need to be implemented with respect to the NCY#2 identified parcels determination. As the State explains in its submissions:

It is noted that the above processes have not been required by the proposed NCY#2 [identified parcels] determination as it relates to five specified parcels that had been excluded from the surrounding determination in Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 (Coconut). The proposed NCY#2 s 87A agreement recognises the same native title holding group, and is parcel specific, such that the group and boundary processes were not required.

(Original emphasis.)

16    The Court accepts that explanation is correct.

17    In the 2022 Malyon affidavit, Ms Malyon deposes to the notification of meetings to discuss, and subsequently authorise, the s 87A agreement for the NCY#2 identified parcels determination. The NCY#2 authorisation meeting was conducted on 5 September 2022. At that meeting, the group considered the terms of the NCY#2 s 87A agreement, and directed the applicant to enter into that agreement.

The authorisation of the Cape York United #1 applicant

18    At a wider level, the applicant’s authority to enter into the NCY#2 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.

19    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.

20    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.

21    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 NCY#2 NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM

22    I accept the submissions made on behalf of the applicant and the State that there is sufficient material on connection in the Coconut determination to sustain the determination of the NCY#2 parcels, under s 87A of the Native Title Act.

23    At [29], Greenwood J quoted Dr Redmond as follows:

In my opinion, these data all point towards the existence of a single regional society uniting the NCY #1 and #2 claimant groups under a shared body of laws and customs …

My field research with contemporary claimants in the NCY #1 claim, in conjunction with my study of the research materials pertaining to the NCY #2 claim, strongly indicate that a continuing observance and acknowledgement of the traditional laws and customs of the region continues to unite the peoples of both the NCY #1 and #2 claim areas within a single society. This contemporary social unity is entirely congruent with my findings regarding the [Northern Cape York Peninsula] regional society at the time of sovereignty.

(Additions to text in original.)

24    His Honour also quoted the work of Dr Corrigan at [38], who agreed with Dr Redmond as to the existence and nature of a Northern Cape York “society” of which:

the NCY #2 native title claim group forms an identifiable sub-set – whose lawful use and occupation of the country has been perpetuated across succeeding generations to the present day through a body of shared traditional laws and customs.

(Emphasis omitted.)

THE APPLICABLE REQUIREMENTS OF SECTION 87A

25    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.

26    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.

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

28    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

29    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.

30    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

31    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.

32    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the NCY#2 identified parcels determination area. 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

33    In the two sets of reasons for a determination handed down on country today, I set out my approach to the question of “appropriateness” and the Court’s function. I also emphasise the important role of the State in these processes. I adopt those same observations in relation to the NCY#2 parcels, although the situation is much more straightforward.

34    I am satisfied there has been a careful approach taken as to the parties’ agreement whether native title has been extinguished or not over these individual parcels, and as to authorisation of the s 87A agreement by the NCY#2 group. 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.

NOMINATION OF A PRESCRIBED BODY CORPORATE

35    A PBC has been nominated under s 56 of the Native Title Act for the NCY#2 identified parcels determination area: see 2022 Malyon affidavit at [111]-[112]. The Court is satisfied that the nomination of the Mokwiri Aboriginal Corporation is appropriate and conforms with the Native Title Act.

CONCLUSION

36    For the NCY#2 group, this determination represents an expansion of the recognition of that group’s native title to parcels surrounded by areas already determined in the Coconut determination. It has taken a long time to resolve these outstanding parcels, and the NCY#2 group have shown patience and persistence. The Court is pleased to deliver some further certainty to their native title claims today, and thanks all those who have worked towards this outcome.

Associate:

Dated:        6 October 2022

SCHEDULE OF PARTIES