FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 15) (Weipa Peninsula People determination) [2023] FCA 732

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.    Pursuant to s 199C(1A) of the Native Title Act 1993 (Cth), the Registrar is not to remove the following indigenous land use agreements from the Register of Indigenous Land Use Agreements, at least to the extent the indigenous land use agreements fall within the External Boundary:

(a)    Batavia ILUA (QI2012/120); and

(b)    Peninsula Developmental Road ILUA (QI2016/049).

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

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

5.    The determination area is the land and waters described in Schedule 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

6.    Native title exists in the Determination Area.

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

8.    Subject to orders 10, 11, and 12 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are:

(a)    other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b)    in relation to Water, the non-exclusive right to take the Water of the area for personal, domestic and non-commercial communal purposes.

9.    Subject to orders 10, 11, and 12 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(c)    hunt, fish and gather on the land and waters of the area;

(d)    take the Natural Resources from the land and waters of the area;

(e)    take the Water of the area for personal, domestic and non-commercial communal purposes;

(f)    be buried and to bury Native Title Holders within the area;

(g)    maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs on the area and protect those places and areas from harm;

(h)    teach on the area the physical and spiritual attributes of the area and the traditional laws and customs of the Native Title Holders to other Native Title Holders or persons otherwise entitled to access the area;

(i)    hold meetings on the area;

(j)    conduct ceremonies on the area;

(k)    light fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(l)    be accompanied on to the area by those persons who, though not Native Title Holders, are:

(i)    Spouses of Native Title Holders;

(ii)    people who are members of the immediate family of a Spouse of a Native Title Holder; or

(iii)    people reasonably required by the Native Title Holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.

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

(a)    the Laws of the State and the Commonwealth; and 

(b)    the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

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

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

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

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

(a)    the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests; 

(b)    to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title rights and interests continue to exist in their entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and  

(c)    the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.  

THE COURT DETERMINES THAT:

15.    The native title is held in trust.

16.    The Weipa Peninsula People Aboriginal Corporation (ICN: 9983), 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    

Schedule 2 – Other Interests in the Determination Area  

Schedule 3 – External Boundary    

Schedule 4 – Description of Determination Area    

Schedule 5 – Areas Not Forming Part of the Determination Area    

Schedule 6 – Map of Determination Area    

Schedule 1 – Native Title Holders

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

(a)    Ruchook;

(b)    Malacoola (aka Malakula);

(c)    Langan;

(d)    Athoing;

(e)    Tweerat (Number Two);

(f)    Old Whongi Tow-wat;

(g)    Dangoon;

(h)    Ghatwin;

(i)    Jimmy Mast;

(j)    Kelindun (father of Yepinyi Kelindun Rruchuk, Ooknetting Olondon Kelindun and Avumpin Avunda);

(k)    Kumjin;

(l)    Juanqui;

(m)    Pinka (Old Peter);

(n)    Okolkon (aka York Downs Mamoos);

(o)    Pearl Tuppan;

(p)    Aria;

(q)    Agotchepei;

(r)    Beachenugar;

(s)    Father of George Wakmathe (aka Waukmatha/Waukmathe) & Alec York Downs;

(t)    Quaingy;

(u)    Quopal-o;

(v)    John A-chi-chin-ga (father of Dick York);

(w)    Maggie;

(x)    Alalangbunge; or

(y)    Old Tic Tic Tano-kopei.

Schedule 2 – Other Interests in the Determination Area

The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the Determination:

1.    The rights and interests of the parties under the following agreements registered on the Register of Indigenous Land Use Agreements:

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

(b)    Peninsula Developmental Road ILUA (QI2016/049) registered on 11 July 2017;

(c)    Sudley Pastoral Holding Use and Access Agreement (QI2004/020) registered on 23 March 2005; and

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

2.    The rights and interests of Michelle Margaret McLean and Cameron Stuart McLean under the Land Act 1962 (Qld) as the holder of rolling term lease (PH 0/219194) for pastoral purposes (also known as Merluna) over that part of Lot 3 on SP140870 that falls within the External Boundary.

3.    The rights and interests of Silverback Properties Pty Ltd (ACN 067 4000 088) as the holder of rolling term lease for pastoral purposes (TL 0/233308) over that part of Lot 4 on SP266637 (also known as Steve Irwin Wildlife Reserve) that falls within the External boundary.

4.    The rights and interests of Telstra Corporation Limited (ACN 051 775 556) and any of its successors in title:

(a)    as the owner or operator 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 its employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of its duties; and

(d)    under any lease, licence, access agreement, permit or easement relating to its telecommunications facilities in the Determination Area.

5.    The rights and interests of RTA Weipa Pty Ltd (ACN 137 266 285) (and any successors in title) under the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) (Comalco Act) and the Commonwealth Aluminium Corporation Pty Limited Agreement (which is given statutory force by the Comalco Act) (Comalco Agreement), including, but not limited to, rights and interests to utilise, be present on, mine and/or perform other activities on the Determination Area, including:

(a)    access;

(b)    areas adjacent to, in the vicinity of or outside the “bauxite field” (as defined in clause 1 of the Comalco Agreement);

(c)    land outside Mining Lease No. 7024;

(d)    foreshores, tidal land and tidal water; and

(e)    the Wenlock River and its tributaries and areas on or in the vicinity of the Wenlock River and its catchment area.

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

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

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

7.    The rights and interests of Napranum Aboriginal Shire Council and Cook Shire Council:

(a)    under their 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 their Local Government Areas:

(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;

(v)    as the trustee of any DOGIT;

(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 Napranum Aboriginal Shire Council or the Cook Shire 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 Napranum Aboriginal Shire Council or the Cook Shire Council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 7(a), (b) and (c) above by their employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 7 and paragraph 9 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 7(c) above; and

(iii)    undertake operational activities in their capacity as a local government such as feral animal control, erosion control, waste management and fire management.

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

(a)    as the owner and operator of any “Works” (as that term is defined in the Electricity Act 1994 (Qld)) within the Determination Area;

(b)    as an electricity entity under the Electricity Act 1994 (Qld), including but not limited to:

(i)    as the holder of a distribution authority;

(ii)    to inspect, maintain and manage any Works in the Determination Area; and

(iii)    in relation to any agreement or consent relating to the Determination Area existing or entered into before the date these orders are made; and

(c)    to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this clause.

9.    The rights and interests of the State of Queensland, Napranum 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.

10.    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.

11.    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).

12.    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.

13.    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.

14.    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 north-western corner of the northernmost severance of Lot 1 on YK4, being a point on the Wik and Wik Way Native Title Determination No. 4 (QCD2012/010), and extending easterly, southerly, and easterly along the boundaries of that lot and Lot 3 on SP140870 (also subject to that determination) until Longitude 142.393921° East; then south-easterly along the eastern boundary of Lot 4 on AP17644 of the Wik and Wik Way Native Title Determination No. 4 (QCD2012/010) until its intersection with the centreline of Aurukun Road at Longitude 142.397052° East; then north-easterly along the centreline of that road until it reaches Peninsula Developmental Road; then generally south-easterly along the centreline of Peninsula Development Road until it meets a point adjacent to the headwaters of Hesket Creek at Longitude 142.660578° East; then north-westerly in a straight line to the headwaters of Hesket Creek at Longitude 142.658150° East, Latitude 13.048170° South; then generally north-easterly along the centreline of Hesket Creek, as far as the junction of the intermittent stream at approximately Longitude 142.720304° East, Latitude 12.895012° South; then generally northerly and north-westerly along the centreline of that unnamed creek taking the northern channel to where it intersects with the eastern boundary of Lot 5 on SP241405 at Latitude 12.840698° South, being the Batavia National Park CYPAL (also known as Embley Range Nature Reserve); then northerly along this eastern boundary to the north-eastern corner of the Batavia National Park CYPAL where it intersects with the centreline of Sudley – Batavia Road; then north-easterly along that road until its intersection with the eastern-most tributary of Lydia Creek at Longitude 142.667264° East; then generally north-westerly along the centreline of the main channel of Lydia Creek to its intersection with an unnamed tributary at Latitude 12.499582° South; then northerly along the centreline of that tributary to its intersection with another unnamed tributary at Latitude 12.495680° South; then north-easterly in a straight line to join the south-eastern corner of the eastern-most severance of Lot 12 on SP241431, being the southern boundary of the Moreton Telegraph Station block; then north, westerly along the northern bank of the Wenlock River being the southern boundary of Lot 12 on SP241431; to the south-western corner of that lot, then southerly to the centreline of the Wenlock River; then generally southerly along the centreline of the Wenlock River to its intersection with the centreline of Schramm Creek; then northerly along the centreline of Schramm Creek until a point at Longitude 142.548147° East, Latitude 12.435643° South; then in a westerly and south-westerly direction until a point on the centreline of the Wenlock River at Longitude 142.413905° East, Latitude 12.502787° South, passing through the following coordinate points:

Then westerly along the centreline of the Wenlock River until it meets the eastern boundary of the Northern Cape York #2 Native Title Claim Group determination (QCD2014/011); then southerly, westerly, generally north-westerly and south-westerly along the boundaries of that determination until its intersection with a western boundary of Lot 7024 on MP41159 (segpar #36193/005), further described as:

Southerly along the eastern boundaries of Lot 3 on SP269704 and Lot 21 on SP269704, being the boundary of Cox Creek, to the northern boundary of Lot 1 on SP304678; then westerly along the boundary of that lot to the south-eastern corner of Lot 23 on SP269704, being the boundary of Myall Creek; then generally north-easterly and generally north-westerly along the centreline of that creek to Mission River; then generally south-westerly along the centreline of that river to its intersection with a western boundary of Lot 7024 on MP41159 (segpar #36193/005);

then southerly along the western boundary of that lot to its intersection with the high water mark; then generally south-westerly, southerly and south-easterly along the high water mark to a point on the boundary of Lot 14 on SP120446 at Longitude 141.889140° East; Latitude 12.689082° South; then south-westerly along the eastern boundary of that lot until its intersection with Lot 1 on AP17647 of the Wik and Wik Way People Native Title Determination (QCD2009/002); then south-easterly and generally north-easterly along the boundary of that determination until it intersects with Lot 4 on AP9682 of the Wik and Wik Way Native Title Determination No. 2 (QCD2004/002); then north-westerly, generally north-easterly and generally south-westerly along the boundaries of that determination back to the point of commencement, further described as:

north-westerly and generally north-easterly along the northern boundary of Lot 4 on AP9682 of the Wik and Wik Way Native Title Determination No. 2 (QCD2004/002) until it intersects with the northern boundary of Lot 18 on SP266617 at Longitude 142.061002° East; then south-easterly and generally north-easterly along the boundary of that lot to its intersection with a southern boundary of Lot 7024 on MP41159; then north-easterly along the boundary of that lot until Longitude 142.076570° East; then generally north-easterly along the northern boundaries of Lot 18 on SP266617 and Lot 20 on SP266617, being Marmoss Creek, to its intersection with the northern boundary of Lot 1 on SP304678; then westerly and generally southerly along the boundaries of that lot back to the commencement point.

(all Subject to Survey)

Exclusions

The area that is subject to Indigenous Land Use Agreement (as registered) –QIA2001/002 (WCCCA) ILUA – 24 August 2001, as per Schedule B of the Native Title Determination Application.

Data Reference and source

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

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

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

•    Indigenous land use agreements sourced from the Commonwealth of Australia, NNTT (August 2021).

Reference datum

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

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Schedule 4 – Description of Determination Area

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the tables in the Parts immediately below, and depicted in the maps in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Part 1 — Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the Determination map contained in Schedule 6:

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

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the Determination map contained in Schedule 6:

Schedule 5 – Areas Not Forming Part of the Determination Area

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

1.    Those land and waters within the External Boundary in relation to which one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) was done and was attributable to either the Commonwealth or the State, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    Specifically, and to avoid any doubt, the land and waters described in 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), including but not limited to the whole of the land and waters described as:

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.

4.    Those land and waters within the External Boundary on which, at the time the Native Title Determination Application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

Schedule 6 – Map of Determination Area

REASONS FOR JUDGMENT

MORTIMER CJ:

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 Weipa Peninsula People. This determination is being made on the same day as a determination recognising the native title of the Taepithiggi People, and the day before determinations recognising the native title of the Central West Wik People and Umpila People. The Court also makes a determination recognising the native title of the Atambaya People in relation to areas of land and waters in northern Cape York, to the west and east of their existing determination made in this proceeding in October 2022, Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176. The Atambaya #2 determination, as the parties refer to it, is being made on the papers.

2    This is the fourth group of determinations made in the Cape York United #1 proceeding, with the first having been made in November 2021.

3    Together, these determinations resolve five parts of the Cape York United #1 claim, within geographic regions that have been described by the parties as the ‘McKeown area’ and ‘Redmond Part B area’, because Dr Frank McKeown and Dr Anthony Redmond were the anthropologists engaged by the Cape York United #1 applicant to prepare connection material about the respective areas. The Central West Wik and Weipa determinations fall within the McKeown area. The Umpila determination previously formed part of what was known as the ‘Kwok Report Area’, named for Dr Natalie Kwok as the anthropologist engaged for the area, but was added to the McKeown area timetable on 20 April 2023. This is because of the delays in securing authorisation, to which I refer in the Umpila determination reasons. As set out in the Court’s timetabling orders of 14 June 2022, the area the subject of a report by Dr Redmond, known as the ‘Redmond Report area’, was divided into two separate case management timetables, being Part A and Part B. The ‘Redmond Part A area’, as it became known, was the subject of determinations made in October 2022. Subsequently, orders dated 14 December 2022 divided the Part B area into two timetables, labelled Redmond Parts B and C. The Atambaya #2 and Taepithiggi determinations fall within the Redmond Part B area. The ‘Redmond Part C area’ is proceeding separately towards determination at a later stage.

4    Accepting that each of the five groups is recognised as a distinct native title holding group, with their own rights and interests under traditional law and custom in the determination area, the Court makes orders and gives reasons separately for each group.

5    The Weipa Peninsula People native title group consists of six subgroups, being Wathayn, Mbyiwom, Yinwum, Algnith, Anathagayth and Peppan.

6    The Weipa Peninsula People’s traditional country is agreed to include the area of the western coast of Cape York Peninsula from Weipa and Napranum in the west, between the Mission and Embley Rivers, inland (east) past Embley Range including Sudley Station and parts of the Batavia National Park (CYPAL) and Aboriginal freehold, Bertiehaugh, Napranum DOGIT, and Merluna Station. Exclusive native is recognised over the Napranum DOGIT and the Peppan Land Trust. It excludes those parts of the Weipa Peninsula covered by the Western Cape Communities Co-existence Agreement (being an area excluded from the Cape York United #1 claim). Like many other determinations in this proceeding, there are large areas in which exclusive native title is being recognised: for the Weipa Peninsula People, more than 72,000 hectares, being 30% of the determination area.

7    The material filed in the Weipa Peninsula determination application amply supports the traditional connection of the Weipa Peninsula People to the determination area.

8    Ms Fiona Wirrer George gets her rights and interests in Weipa country through her mother’s family and says she feels she can speak more boldly on the Weipa end of her country rather than the Aurukun end. She describes the connection she feels to her country and the importance of passing on her cultural knowledge to her children:

Country without it being in its original state will inevitably alter [spiritual] and cultural practices. I feel a deep connection to my country that goes beyond this reality that we exist in. I immediately feel an affiliation to my country, and that sensing goes beyond what I feel under my feet, beyond the literal visual that I see and my thoughts; it is an expanded energy, knowledge and awareness, and deep knowing. When I am away from my country I still feel it; it travels inside of me through my physical body and those other aspects that make up our being. Without our country it will all just be theory to future generations, but just as I have spent time at the feet of my grandmother, Ebony [her daughter] spends time at my feet. I am mindful of my ongoing responsibility to pass on knowledge to my daughters, just as my grandmother and others passed knowledge on to me.

9    The Court’s orders represent the long overdue recognition by Australian law of the land and waters of the Weipa Peninsula People. It is to be hoped that the Court’s orders can assist the preservation and protection of the country of Weipa Peninsula and enable and empower the Weipa Peninsula People to continue to look after their country as they have done for thousands of years, passing traditional knowledge down to future generations.

10    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

11    The application for consent determination was supported by a principal set of submissions filed by the applicant on 15 June 2023. The State also filed submissions on 15 June 2023. Each set of submissions addressed all of the determinations falling within the McKeown and Redmond Part B timetable areas. The Court has been greatly assisted by the parties’ submissions, and the material provided.

12    The applicant relied on a number of affidavits dealing with matters relevant to the determinations. First, an affidavit of Kirstin Donlevy Malyon affirmed on 9 June 2023 (2023 Malyon affidavit). Second, an affidavit of Parkinson Wirrick affirmed on 9 June 2023 (Wirrick 9 June 2023 affidavit). Third, an affidavit of Parkinson Wirrick dated 14 June 2023 (Wirrick 14 June 2023 affidavit). Fourth, paragraphs [5] to [30] of an affidavit filed earlier in these proceedings by Ms Malyon on 27 October 2021 regarding the re-authorisation process undertaken by the applicant in the period from April to September 2021 (2021 Malyon affidavit). For the Weipa Peninsula People determination in particular, in addition to the above affidavits, the applicant also relied on material annexed to an affidavit of Parkinson Wirrick dated 2 June 2022 (Wirrick 2 June 2022 affidavit). The State relied on an affidavit of Kate Evelyn Marchesi affirmed on 12 June 2023.

13    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 2023 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 Weipa Peninsula People s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Weipa Peninsula People Aboriginal Corporation (ICN 9983) was nominated as the prescribed body corporate (PBC) for the Weipa Peninsula People 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.

14    In relation to the Weipa Peninsula determination, the applicant relied on the following material to demonstrate there was a credible basis for connection, and to establish what material had been available to the State for the purposes of the s 87A agreement:

(a)    expert report by Dr McKeown entitled “Anthropological Report” filed on 23 January 2018;

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

(c)    supplementary expert report of Dr McKeown dated 26 March 2019 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit;

(d)    apical report of Ms Waters regarding Peter Boyd and Polly Kepple dated 9 August 2021 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit;

(e)    witness statement of Fiona Wirrer George dated 28 March 2019 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit;

(f)    apical report of Ms Waters regarding Katy Robertson dated 2 August 2021 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit; and

(g)    apical report of Ms Waters regarding John A-chichin-ga dated 6 August 2021 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit.

15    It is apparent from the dates of some of this material that a careful and iterative process has been undertaken by the applicant, addressing any concerns of the State, explaining how debates with the neighbours of the Weipa Peninsula People have been resolved (especially Central West Wik and Weipa Peninsula boundaries), and ensuring that there was adequate material to support, in particular, the boundary and group descriptions proposed for the determination.

PROCEDURAL HISTORY

16    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 most of the undetermined parts of Cape York.

17    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. Three further determinations were made on 6 October 2022: Atambaya determination; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 12) (Gudang Yadhaykenu determination) [2022] FCA 1177; 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. 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.

AUTHORISATION

The Weipa Peninsula People section 87A agreement

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

19    The Boundary Identification Negotiation and Mediation or ‘BINM’ process was adopted by the applicant, through the CYLC, 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 all five groups in this round of determinations, and at [71]-[100] of the 2023 Malyon affidavit, Ms Malyon describes the process as it unfolded for each group, including the Weipa Peninsula group.

20    Putative boundary descriptions for the Atambaya and Taepithiggi 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. Putative boundary descriptions for the Central West Wik and Weipa Peninsula People native title groups were developed from desktop research by the CYLC and Dr McKeown. They were provided to the State on 4 February 2021 on a ‘without prejudice’ basis. The putative boundary description for the Umpila native title group was developed from desktop research by the CYLC and Dr David Thompson. This was provided to the State on 7 July 2020 on a ‘without prejudice’ basis. The boundary descriptions were prepared in consultation with anthropologists engaged by CYLC in relation to neighbouring areas.

21    Following the provision of the putative boundary descriptions to the State, the CYLC facilitated consultations with the Atambaya, Central West Wik, Taepithiggi, Umpila and Weipa Peninsula People native title groups. This commenced in September 2020 for the Umpila native title group, January 2021 for the Atambaya and Taepithiggi native title group, and February 2021 for the Central West Wik and Weipa Peninsula People native title groups.

22    Dr Natalie Kwok and Mr Mark Winters spent a combined total of 41.5 days consulting with relevant families, elders and other key persons from neighbouring groups to discuss their common boundaries, including those between the Weipa Peninsula People and Central West Wik, and the boundary with Northern Kaanju.

23    Dr McKeown, Dr Kwok, Mr Winters and Dr Thompson spent a combined total of 85 days consulting with relevant families, elders and other key persons from neighbouring groups to discuss their common boundaries.

24    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 November 2020 and September 2021 with each of the Atambaya, Central West Wik, Taepithiggi, Umpila and Weipa Peninsula People groups to discuss boundaries, provide further information about the BINM process, and to receive instructions. Preliminary maps were made available to group members for their own areas. 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 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 where instructions were taken as to final descriptions of common boundaries. These took place between 31 March 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 Atambaya, Central West Wik, Taepithiggi, Umpila and Weipa Peninsula People native title groups met with their neighbours over a period of around 15 months:

(a)    Umpila and Southern Kaantju native title groups – Wednesday 31 March 2021;

(b)    Umpila, Uutaalnganu native title group and Southern Kaantju– Thursday 1 April 2021;

(c)    Northern Kaanju native title group and the Yinwum traditional owner group (being the subgroup of the Weipa Peninsula People with country adjoining the Northern Kaanju native title group): Friday 28 May 2021;

(d)    Yinwum, Northern Kaanju and Atambaya: Saturday 29 May and Sunday 30 May 2021;

(e)    Atambaya and Taepithiggi native title group: Monday 31 May 2021;

(f)    Atambaya: Friday 4 June 2021;

(g)    Central West Wik, Ayapathu native title group and Northern Kaanju: Tuesday 8 and Wednesday 9 June 2021;

(h)    Wik Ompom (being a subgroup of Central West Wik, and Yinwum and Mbyiwom traditional owner groups, in turn being subgroups of the Weipa Peninsula People): 10 June 2021;

(i)    Wuthathi native title group: Wednesday 23 June 2021;

(j)    Central West Wik, Southern Kaantju and Ayapathu: 29 and 30 June 2021;

(k)    Taepithiggi: 11 February 2022;

(l)    Atambaya: 21-22 February 2022; and

(m)    Atambaya and Wuthathi: Thursday 23 June 2022.

29    Members of the Weipa Peninsula People native title group attended these meetings, and agreement was reached as to boundaries. There were some groups who did not reach agreement straight away, and I refer to those in the relevant determination reasons.

30    Group descriptions for the Atambaya, Central West Wik, Taepithiggi, Umpila, and Weipa Peninsula People native title groups were considered at various meetings during the fieldwork phase. In conjunction with the BINM process, the applicant provided to the State a number of reports relating to apical ancestors identified through the BINM who were to be included or excluded from the proposed group descriptions. This included three ancestor reports relating to the Weipa Peninsula People. The parties reached agreement on the final group description for the Weipa Peninsula People native title group on 9 December 2022.

31    The s 87A agreements were settled and authorised after the BINM process, and the group description process, were complete. In the 2023 Malyon affidavit, Ms Malyon deposes to the notification of meetings to discuss, and subsequently authorise, the s 87A agreement for the Weipa Peninsula People determination. The Weipa Peninsula People authorisation meeting was conducted on 17 May 2023. At that meeting, the group considered the terms of the Weipa Peninsula People s 87A agreement, and directed the applicant to enter into that agreement. The direction to the applicant brings me to the question of the authorisation of the applicant to enter into separate s 87A agreements.

The authorisation of the Cape York United #1 applicant

32    The applicant’s authority to enter into the Weipa Peninsula People 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 the 2021 Malyon 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. The applicant’s submissions also supported this approach, unsurprisingly. No objections were made by any other parties to the determinations.

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, in light of the change in the way the claim was proceeding and the re-authorisation process.

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    I adopt those reasons in each of the five determinations now made. 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 WEIPA PENINSULA PEOPLE NATIVE TITLE GROUP TO THE DETERMINATION AREA

36    In his 2018 report, and supplementary 2019 report, Dr McKeown presents a detailed analysis of the connection of the Weipa Peninsula People, and other groups, to the areas he was briefed to report on. 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 claimants.

37    Dr McKeown describes how archaeological research has shown Aboriginal people were in continuous occupation of the determination areas for at least the last 1,200 years, and possibly up to 2,700 years in relation to the Weipa area on the basis of archaeological research into what are known as the Weipa shell mounds, and therefore were in occupation at the time of the British assertion of sovereignty.

38    Dr McKeown describes in detail the traditional laws and customs observed, including those giving rise to rights and interests in lands and waters. He explains the pressure placed on the claimants’ ancestors by pastoralism, missions and government administration. His report reveals the severe and damaging impacts of European colonisation on every aspects of the lives of the claimants’ ancestors. Despite these impacts, Dr McKeown explains how the claimants’ ancestors, and the claimants, continued to acknowledge and observe traditional law and custom, including those laws and customs that gave rise to rights and interests in land and waters; see 5.3.1 of his report and especially [791]-[793]:

In Section 4.2.1, I set out the laws and customs that were most likely acknowledged and observed by the people of the Report Area, prior to sovereignty, that defined the relationship between people and country; namely that:

1.     a person’s spirit emerged from places on country, and returned to it after death;

2.     these places were referred to by the term for ‘father’s father’; and

3.     these beliefs amounted to a sense of a person ‘belonging’ to these places and that country,

which I collectively described as the ‘laws of belonging’.

In Section 5.2.1, I set out the laws and customs currently acknowledged and observed by the people of the Report Area, that define the relationship between people and country, namely that:

1.     a person’s spirit is inextricably linked to places on their country;

2.     a person refers to these places, known as ‘sacred sites’ or ‘story places’, and the spirit ancestors who inhabit them, by the term for ‘father’s father; and

3.     under these laws and customs a person ‘belongs’ to that place and those places and to that country as their home,

which I characterise as the ‘laws of belonging’.

In my opinion, the ‘laws of belonging’ acknowledged and observed by the people of the Report Area are based on, and substantially the same as the pre-sovereignty laws and customs.

39    The applicant submits that the connection material, including the reports of Dr Redmond, Dr McKeown and Dr Thompson, establishes a credible basis for the proposition that the Atambaya, the Central West Wik, the Taepithiggi, the Umpila, and the Weipa Peninsula People 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 evidence supporting the Weipa Peninsula People group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Dr McKeown and Ms Waters. Ms Waters’ work concentrates on the correct identification of apical ancestors, and is, like her other work for other determinations in this proceeding, meticulous. The State accepts this material, and there is no objection from the other parties to the present determinations.

41    Finally, it is appropriate to set out some extracts from Ms George’s statement provided to the State and the Court. 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].

42    Ms George is descended from two sub-groups of the Weipa Peninsula People, being Algnith through her maternal nanna Jean George and Mbiywom Oyonton/Trotj through her maternal grandfather Roy George. In her witness statement, Ms George describes her childhood spent on Weipa country:

I was born on Thursday Island. I grew up between Napranum and Aurukun. My home was in Napranum but trips to Aurukun for family and cultural obligations were constant. The trips were always with family, such as my nanna Jean George, my grandfather Roy George, my mum Annie and my stepfather Percy. We went by boat or car to attend funerals, ceremonies, house openings or to just to stay during middle season, dry season. When the dry season came, it would then be time to go out and live on country.

…

Growing up, I went all over our country. For a time, we stayed in an old Queenslander with families inside and families camped outside while on holidays at an outstation called ‘Wathaniin’ outside of Aurukun ... The little outstation plane would take families to all the outstations in the area. I remember being taken out by families to look for water nuts, called panja, in the swamp. We played bush games using the bushmen peg and put a stick through and played cricket. I was taught by my nanna how to swim out into the middle of the swamp to get waterlily without getting caught by a crocodile. We ate the stems but we had to be careful not let Kootheeth Erdin, the fairy, steal our waterlilies or our belongings. Nanna told me about Ornawa Swamp, where Kootheeth Erdin - the Fairy Dreaming Story, was. Nanna said the fairies were powerful and mysterious. We knew they were there because the old people said that was their dreaming place.

43    Ms George describes an early childhood memory of learning Weipa songs and dances from Weipa women:

My earliest memory of ceremony was when I was 6 or 7 years old. We went to Dry Swamp, a few kilometres out of Aurukun, to a festival. The Grooyte Eylandt mob were there, the Mornington mob were there, and so were all the Wik clans. It was a cultural battle of song and dance. I went to dance in the Weipa group; I went there with my grandparents to represent Weipa mob. I learnt to dance the old Weipa songs and dances mainly from my nanna, but the old Weipa women, such as Joyce Hall, Ina Hall, Eva Fruit and Kitty Dick were cultural demonstrators and teachers as well. I sat at the feet of these old people and learnt the dances - Kwarr (to sing), Oyol (the cyclone dance) and Yikim Yikim, which is an Alngith song.

44    Ms George also recounts learning about the Dreaming on her country from her grandparents as a young child:

My grandfather put smell on me when I was small. In the first 10 years of my life, until he passed away, he taught me about his country. He spoke to me in language and told me about dreaming connections to Mbiywom Trotj country and the 3 main swamps in this country: Pitji, Oochunyung or Ayontun, and lyunthun. Oochunyung is the Wattle Flower Dreaming. Other spirit ancestors in this area were: Tork, which is snail; Tungtung or llkutj which is freshwater turtle; and Ngol which is small wallaby. I put Oochunyung at the end of each of my paintings because I am connected to that area through my mother - it is a tribal statement to the world and demonstrates respect back to my grandfather. …

I have connection to the Alngith area through Yepenyi, an Alngith man, and Waapun, a Liningithi woman, and my nanna Jean George. I have connections on both sides of the Embley River. Nanna said we have Dreamings on both sides of the Embley river. At Arniyum, on the south side of the Embley River, the Oolay Panj or Gecko Dreaming lives in the bloodwood tree up in Robert’s Creek … He guards the produce of the land, calling out ‘co co wwwwwwwww! Don’t take too much yams, leave some yams for us, the tribal people!’. My spirit says this is a warning for the clearing that is happening at that place now. That place is one of many Dreaming areas for Alngith Liningithi people taught to me by my nanna.

45    Ms George explains the nature of her right to access and use country and resources, and describes how she has the right to take things from her country to use in her art. She emphasises the importance of following cultural rules about taking things from country, and describes the consequences of failing to follow these rules:

My mum and my nanna taught me that we have an automatic right on Mbiywom Trotj country to take things from our country, and to use these things in our art or to make things to sell. We have an unquestionable right to take anything from our country and sell it - sand, gravel, trees, anything. But we still have an obligation to go through an appropriate process, to conduct ourselves with integrity in terms of consulting our families, protecting our country, and making sure the processes are transparent and respect collective ownership. An individual can’t do whatever he or she wants - there is responsibility, obligations and we must refer to the old people, as well as our cultural processes.

…

There are some people who have pursued economic ventures on our land without following the rules. They no longer occupy a position of authority in customary law. They are not respected. If you do not follow the rules you will be shunned and lose the respect of the groups, and you will not be invited to the table to speak about country. If you conduct yourself properly, you will be part of the ongoing process for speaking for country and your position will be recognised and respected in a collective sense.

46    Ms George explains her responsibility to pass on her knowledge of country and the rules to future generations:

I continuously hand down knowledge to my children - I tell them what country they have connection to, and what are the rules for that country. When we are on country together I show them where to go, what plants are used for and tell them about dreamings. When he is old enough, I will start doing this with my grandson Lucas.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

47    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.

48    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.

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

50    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

51    As the applicant sets out at [48]-[54] 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.

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

52    For the reasons set out at [55]-[60] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

53    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the Atambaya #2, Central West Wik, Taepithiggi, Umpila and Weipa Peninsula People 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

54    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.

55    In relation to the five determinations, I am satisfied all parties have adopted a methodical and careful approach to group description, boundary description and resolution of boundary disputes, connection and tenure, including for the Weipa Peninsula People determination. 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 chose to do so. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests.

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

ORDER SOUGHT UNDER S 199C(1A)

57    There are two current indigenous land use agreements (ILUA) in place in relation to parts of the Weipa Peninsula People determination area. They are both area ILUAs. The parties submit an order pursuant to s 199C(1A) of the Native Title Act should be made, directing the Registrar not to remove the details of the Peninsula Developmental Road ILUA (QI2016/049) and the Batavia ILUA (QI2012/120) from the Register of Indigenous Land Use Agreements. The parties contend this order should be made out of an abundance of caution, given the ongoing operational nature of the ILUAs.

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

(1A)    If:

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

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

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

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

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

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

…

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

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

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

60    The State submits that:

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

(i)    the Peninsula Developmental Road ILUA covers a large geographical area from Lakeland to Weipa and was entered into by the Cape York United #1 applicant, without inclusion of or reference to particular groups as separate parties;

(ii)    the Batavia ILUA referenced, as one of the parties, only the Yinwum sub-group of the Weipa Peninsula People Native Title Group;

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

(iv)    in circumstances where the proposed group description does not reflect, on its face, the group descriptions proposed in the draft s 87A agreements for the relevant groups, and the State is not privy to any materials regarding the original authorisation of the ILUAs, the State supports, and presses for, the proposed s 199C(1A) order out of an abundance of caution; and

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

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

(c)    with respect to sub-s 199C(1A)(c), the requirement is met, because the Weipa Peninsula People native title group passed resolutions at the Weipa Peninsula People authorisation meeting on 17 May 2023, accepting the terms of the Batavia ILUA and Peninsula Developmental Road ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that the ILUAs not be removed from the Register.

61    As I have previously held, s 199C is intended to allow for the continuity of obligations assumed under, and entitlements conferred by, (relevantly) an area ILUA where the group identified by this Court as the native title holders for that area are prepared to agree to continue to be bound by that ILUA, and where there is sufficient overlap between those native title holders who authorised an ILUA and those who are recognised in a determination. I do not consider it is necessary in the present circumstances of a s 87A agreement for the Court to embark on any detailed consideration of what level of overlap is strictly required. Section 199C is a facultative provision, and should be construed with the principal objections of the Native Title Act of mediation and resolution of claims by consent in mind.

62    Given the resolution passed by the Weipa Peninsula People, I am satisfied it is appropriate for the order sought by the State to be made, out of an abundance of caution. In a complex and novel claim such as the Cape York United #1 proceeding, where the steps to agreement take so long and involve many potential pitfalls, any doubts which can be avoided or accommodated by the making of orders should be resolved by the Court, so that the central objectives of the parties’ agreement under s 87A can be achieved. As many justices of this Court have observed, the resolution of claimant applications by consent is a central feature of this legislative scheme.

NOMINATION OF A PRESCRIBED BODY CORPORATE

63    A separate PBC has been nominated under s 56 of the Native Title Act for each of the Atambaya, the Central West Wik, the Taepithiggi, the Umpila, and the Weipa Peninsula People. In the 2023 Malyon affidavit, 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

64    The Cape York United #1 claim continues to be 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 continues to be 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 Weipa Peninsula People 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 proceeding 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. The continued devotion of considerable resources to the resolution of this claim by the CYLC has been the key to the fulfilment of the ambitious timetable agreed between the parties and endorsed by the Court.

65    The Court commends the work of National Judicial Registrar Katie Stride in the processes that have led to the Court’s decisions today. NJR Stride deserves particular acknowledgment in this round of determinations because they will be the last Cape York United #1 claim determinations she is involved in as a Registrar of this Court, before she takes up her position as Native Title Registrar of the National Native Title Tribunal. I offer my particular gratitude to her for all the assistance she had provided to me over the years we have worked together on the Court. 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.

66    Amongst the five determinations being made in this round, it is important not to lose sight of the significance each individual determination has for the people involved in it. For the six groups who make up the Weipa Peninsula native title holders, it is by the Court’s orders today that their country is finally recognised in a way consistent with what they have always known, and have always been taught. The Court acknowledges this is a deeply personal matter for them, and a time to remember their elders and ancestors who fought to hold onto their connection to traditional law and custom, and to their country. Like the people from what Ms George calls the “large collective of clans and nations” across Cape York, the Weipa Peninsula native title holders have long been denied proper recognition by Australian law of their deep and abiding connection to country. The Court’s orders 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:    5 July 2023

SCHEDULE OF PARTIES