FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination) [2023] FCA 733

ORDERS

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth);

THE COURT NOTES THAT:

A.    Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park area within the External Boundary will be addressed after the matter has proceeded to determination.

B.    The Central West Wik People (being the proposed native title holders described in Schedule 1 of the Determination) have indicated a desire to enter into negotiations with the State of Queensland (the State) in relation to whether s 47C of the Native Title Act 1993 (Cth) would have application to the land and waters within Lot 25 on SP241398 (the park area).

C.    Subject to paragraph D below, the parties agree that, if agreement is reached in accordance with s 47C(1)(b) of the Native Title Act 1993 (Cth) that s 47C is applicable to the park area, the parties would not oppose an application being brought on behalf of the Ngan-Aak Kunch Aboriginal Corporation RNTBC (ICN: 4097) pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to the park area within the Determination Area for which agreement is reached regarding the application of s 47C of the Native Title Act 1993 (Cth).

D.    The agreement of the parties described in paragraph C above not to oppose an application being brought to vary the Determination in relation to the park area, is subject to the Applicant and the State having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to the park area, and any other relevant matters.

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

THE COURT ORDERS THAT:

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

BY CONSENT THE COURT ORDERS THAT:

1.    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.    Peninsula Developmental Road ILUA (QI2016/049); and

b.    Oyala Thumotang National Park (Cape York Peninsula Aboriginal Land) and adjacent Aboriginal Land ILUA (QI2012/071).

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 Central West Wik 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 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 Ngan Aak-Kunch Aboriginal Corporation RNTBC (ICN: 4097), 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 Central West Wik People. The Central West Wik People are:

(a)    Brian Ross; and

(b)    those Aboriginal persons who are descended by birth, or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Central West Wik People, from one or more of the following apical ancestors:

(i)    Peempa Thum-Kalban Ku’ekka;

(ii)    Daojan (Koondumbin);

(iii)    Jimmy (father of Polly Perkins and Connie Tartempenmiya);

(iv)    Father of Short Charlie and Long Charlie (Chaalongk);

(v)    George Brown;

(vi)    Chininga;

(vii)    Ko’owata;

(viii)    Mosey;

(ix)    Dhaabangchiy;

(x)    Jimmy Lawrence;

(xi)    Palpal (Quinkan) Old Blowdy;

(xii)    Warnkoola Ancestor (father of Nellie ‘Eempen’ Warnkoola, Rupert Kepple Warnkoola and Charlie Warnkoola); or

(xiii)    Kepple Ancestor (father of Gilbert Kepple and Maamus Kepple).

Schedule 2 – Other Interests in the Determination Area

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

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

2.    The rights and interests of 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 pursuant to the rolling term lease (PH 0/219193) granted over that part of Lot 2 on SP140870 (also known as Picaninny Plains) held by the Australian Wildlife Conservancy (ACN 068 572 556) and The Tony and Lisette Lewis Settlement Pty Limited (ACN 003 632 344) 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:

5.    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:

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:

7.    The rights and interests of Cook Shire Council:

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

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

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:

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

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:

14.    Any other rights and interests:

Schedule 3 – External Boundary

The area of land and waters:

Commencing at the most northerly north-eastern corner of Lot 652 on SP177999 (being part of the Wik and Wik Way Native Title Determination No. 3 (QCD2004/003)), and extending southerly and easterly along that northern boundary to Longitude 142.811473° East, Latitude 13.982793° South; then extending in a straight line in a north-westerly direction to the headwaters of an unnamed watercourse at Longitude 142.801751° East, Latitude 13.946058° South; then generally northerly along the centreline of that unnamed watercourse to the intersection of Horsetailer Creek at Latitude 13.894294° South; then generally north-easterly along the centreline of Horsetailer Creek to its intersection with the Coen River at Latitude 13.869165° South; then generally easterly along the centreline of the Coen River to its intersect with Sandy Creek at Longitude 142.894232° East, Latitude 13.869212 South; then north-westerly in a straight line to a site named Muwangam at Longitude 142.842672° East, Latitude 13.668725° South adjacent to Rokeby Road; then north-westerly in a straight line to the intersection of the centreline of Baker Creek and the centreline of Archer River (also known as Ten Mile Junction); then easterly along the centreline of Archer River until its intersection with the eastern tributary of Pinnacle Creek at Longitude 142.848823° East; then generally northerly along the centreline of Pinnacle Creek until an unnamed tributary at Latitude 13.308707° South; then northerly along the centreline of that unnamed tributary until it reaches the headwaters at Longitude 142.817737° East, Latitude 13.248008° South; then northerly in a straight line until it meets the junction of the Telegraph Road (also known as the Old Telegraph Track) and an unnamed access road at Latitude 13.228853° South; then north-westerly along the centreline of Telegraph Road until it intersects with another unnamed access road at Latitude 13.188979° South; then north-westerly to the intersection of Nettle Creek and an unnamed tributary at Longitude 142.775311° East, Latitude 13.162993° South; then north-westerly to Longitude 142.755182° East, Latitude 13.150363° South; then north-westerly in a straight line until it meets the centreline of the Peninsula Development Road adjacent to the headwaters of Heskett Creek at Longitude 142.660578° East; then westerly along the centreline of Peninsula Development Road until it meets the Aurukun Road turn off; then westerly along the centreline of the Aurukun Road until it reaches Longitude 142.397052° East; then southerly to the eastern boundary of Lot 4 on AP17644 of the Wik and Wik Way Native Title Determination No. 4 (QCD 2012/010); then generally southerly along the eastern boundary of that determination until it meets the northern boundary of Lot 22 on SP241397; then in a south-westerly direction along that lot and the southern boundaries of the southern severances of Lot 1 on YK4 until it meets the eastern boundary of Lot 211 on SP241404 (being part of the Wik and Wik-Way Peoples Determination (QCD2000/006)); then southerly along that boundary until it meets the north-western corner of Lot 3 on SP241397 (being part of the Wik and Wik Way Native Title Determination No.3 (QCD2004/003)); then easterly, southerly, south-westerly and westerly along the boundaries of that lot until its intersection with the eastern boundary of Lot 211 on SP241404 (being part of the Wik and Wik-Way Peoples Determination (QCD2000/006)); then southerly along the eastern boundary of that lot until it meets the southern bank of the Archer River at a north-western corner of Lot 653 on SP178000 (being part of the Wik and Wik Way Native Title Determination No. 4 (QCD2012/010)); then easterly along the southern bank of the Archer River and Running Creek, also being the northern boundary of that lot, until it intersects with the western boundary of Lot 819 on SP181633 (being part of the Wik and Wik Way Native Title Determination No. 2 (QCD2004/002)); then north-easterly along the north-western boundary of that lot and across the Archer River until it meets the south-western corner of Lot 2 on SP140870 (being part of the Wik and Wik Way Native Title Determination No. 4 (QCD2012/010)); then northerly along the western boundary of that lot, and generally easterly and southerly along Lot 5 on AP17644 of the Wik and Wik Way Native Title Determination No. 4 (QCD 2012/010), until it meets the northern boundary of Lot 23 on SP241398 (also the southern bank of the Archer River); then westerly along the northern boundary of that lot until it meets with the north-eastern corner of Lot 819 on SP181633 (being part of the Wik and Wik Way Native Title Determination No. 2 (QCD 2004/002)); then southerly, south-easterly, westerly and southerly along the eastern boundary of that lot back to the point of commencement.

(All Subject to Survey)

Data Reference and source

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

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

    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).

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 Central West Wik People. This determination is being made on the same day as a determination recognising the native title of the Umpila People, and the day after determinations recognising the native title of the Taepithiggi People and the Weipa Peninsula 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 Central West Wik People’s traditional country is agreed to include parts of the Archer Bend and Rokeby sections of the Oyala Thumotang National Park (CYPAL) and Aboriginal freehold and parts of Merluna, Picaninny Plains and Wolverton pastoral stations and generally east and north of the existing Wik and Wik Way determinations and west of the Northern Kaanju, Southern Kaantju and Ayapathu determinations. Like many other determinations in this proceeding, there are large areas in which exclusive native title is being recognised: for the Central West Wik People, more than 287,000 hectares, almost two-thirds of the determination area.

6    The Central West Wik People identify with the languages Wik-Mungkan, Mbyiwom/Wik-Ompom and Wik Iiyeyn. “Wik” is a word meaning “speech” or “language” in several western Cape York Peninsula language dialects. Rather than being defined by reference to a broader “Wik and Wik-Way” group, the native title holding group for the Central West Wik determination is agreed to comprise:

(a)    those people who are descendants of the ancestors who were estate owners at effective sovereignty of the proposed determination area;

(b)    the descendants of some ancestors who were estate owners proximate to the determination area but who came to be recognised as native title holders in the area under traditional law and custom; and

(c)    Brian Ross, who was incorporated into the rights-holding group but does not possess transmissible rights.

7    The material filed in support of the determination in favour of the Central West Wik People reveals the traditional connection of the Central West Wik People to the determination area, and the importance of that connection being passed down to future generations.

8    Mr Willie Lawrence, a senior Wik Mungkan man who is now in his eighties, describes his connection to the spirits, stories and resources of his country and explains how he was given this knowledge:

There is a story place near Merapah for Moompa-Awu, the big tall warrior. The Kepple mob are responsible for this story place. Moompa-Awu has a woomera and spears and he is painted up, with purple orchids in his hair and around his arms and feet. Moompa-Awu lives at the story place near Merapah and he moves around Merapah and Rokeby, down to Kendall River and across to Jabaroo Outstation. That’s his run. We have to talk to him when we go to Rokeby or Merapah. When we go there with strangers, we ask him to look after the stranger. We talk to him in language and tell him about the stranger so that he knows they are there with us.

…

I learned about the Moompa-Awu story place from some of the old people. I was out mustering with some of the Kepples, Nicholl’s father and Cedric's father, near that open plan and I saw a big rock in that plain. That’s where he sits, Moompa Awu, he stays in the rock. I was young back then and asked what the rock was. The old Kepple men told me to be careful because it was the Moompa story place. They spoke in language and told Moompa that we were all one countrymen, that Moompa will look after us and we will look after Moompa. The Moompa-Awu story place is a secret place for us and our families under our culture. It’s not for strangers. We have to respect that story ground all the time. When we go to New Merapah, we talk in language to Moompa-Awu. If we take strangers to New Merapah, we tell Moompa-Awu what we are doing and who is with us and ask him to leave us be. I tell him not to get wild. He will leave us be then.

…

I can go anywhere on Rokeby or Merapah, so can family like Nicholl Kepple. But people who aren't from country need to be careful of Moompa-Awu.

There is a big sign board at Rokeby … which shows the big carpet snake or python. The carpet snake is my mother and father’s story, it is for us. It's called Oyngurrpan in language. Oyngurrpan comes from the Love River near Aurukun, the carpet snake story belongs to a place at the Love River. You have to be careful at the story place. If you stir it up big rain will come and there will be snakes everywhere. My family down at Aurukun know about the carpet snake story and they know not to stir anything up there. I went to the carpet snake story place with my dad when I was a boy. My dad took me there and showed it to me. My grandchildren and the younger ones, as well as my family at Aurukun, they know about the carpet snake story place.

The sign board at Rokeby, it has a drawing of the big carpet snake on it and it is at our block at Rokeby. I see the carpet snake around at Rokeby sometimes. When I see him, I talk to him and let him know that I won’t touch him and that it’s his place and that I will leave him be. We found a carpet snake living in the shed at Rokeby. I left him be in the morning and when I came back in the afternoon he had gone, he’d moved on. I saw him later on cuddled up near the roof in the wall looking at me, but that was okay. We don't touch him, we left him to be where he wanted.

I found a little carpet snake in my yard the other day, at Coen. My grandson picked him up and let him go across the road. We don’t hurt him.

…

There’s another place at the bottom side, to the south, of Langi Lagoon. There is another lagoon to the south and it is a mermaid story place. There are mermaids there. I have seen one. She sleeps there. My father took me there when I was young and he told me not to make a noise. When we got close to the lagoon I saw a mermaid. She had a tail like a fish and a body like a woman. She was sitting on the rocks at the lagoon. The lagoon and mermaids are from the early days, old times, before my time. It’s not a place that other people can go to.

…

When I go to Rokeby, I call out to the old people. I sing out and tell them “Oh, hello, we come home”. When I leave to come back to Coen, I say “Apo”, “Goodbye, we’ll see you next time”. Apo means goodbye in language. I do that and my family and the Kepples do that, we do that every time we go there. Every time we go there we have say hello and goodbye. That’s the right way under our culture. Sometimes we say “Oh, hello, we come back home now. We come for fish, please give us fish.” Then we have a good feed, we get lots of fish.

We have to follow our cultural ways, that is an important responsibility. For example, we need to protect our story grounds and secret places. On Rokeby country I say whether someone can go onto our areas or put something down on our country, and where they cannot go. We do this to protect our secret places and story grounds.

9    “Rokeby” is the local name for parts of the eastern section of Oyala Thumatnag National Park.

10    The Court’s orders represent the long overdue recognition by Australian law of the land and waters of the Central West Wik People. The Court’s orders will assist the preservation and protection of Central West Wik country, as Central West Wik People have done for thousands of years, so that their knowledge and law can continue to be passed down to future generations.

11    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

12    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.

13    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 Central West Wik 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.

14    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 Central West Wik s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Ngan Aak-Kunch Aboriginal Corporation (ICN 4097) was nominated as the prescribed body corporate (PBC) for the Central West Wik 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.

15    In relation to the Central West Wik 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)    witness statement of Robert Nelson dated 28 March 2019 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit;

(e)    affidavit of Douglas Ahlers dated 4 April 2019 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit;

(f)    witness statement of Willie Lawrence dated 8 April 2019 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit;

(g)    apical report of Ms Waters regarding Jimmy Lawrence dated 29 January 2021 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit;

(h)    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;

(i)    additional apical report of Ms Waters regarding Peter Boyd and Polly Kepple dated 25 January 2022 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit;

(j)    apical report of Ms Waters regarding Toby Ross dated 10 August 2021 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit;

(k)    additional information report by Ms Waters regarding Toby Ross dated 20 August 2021 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit;

(l)    further report of Dr Kevin Murphy and Ms Waters dated 23 February 2023 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit;

(m)    report of Dr Murphy and Mr Mark Winters concerning the proposed Central West Wik native title determination group description dated 13 June 2023 and filed on 14 June 2023, annexed to the Wirrick 14 June 2023 affidavit.

16    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 Central West Wik People have been resolved, and ensuring that there was adequate material to support, in particular, the boundary and group descriptions proposed for the determination.

PROCEDURAL HISTORY

17    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.

18    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 Central West Wik section 87A agreement

19    Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Central West Wik native title group was methodical. 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 Central West Wik People and their neighbours; and the process to settle group composition, by identification of apical ancestors.

20    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 the Atambaya, Central West Wik, Taepithiggi, Umpila and Weipa claims. This is what Ms Malyon describes in the 2023 Malyon affidavit at [71]-[100].

21    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.

22    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.

23    For the Central West Wik native title group, this consultation involved engaging Dr McKeown for a total of 6 days, and Mr Winters for a total of 23 days, to consult with relevant families, elders and other key persons. It also involved engaging Dr Kwok and Mr Winters (for a total of 41.5 days) as consultant anthropologists for neighbouring groups to discuss common boundaries, including those between the Weipa Peninsula People and Central West Wik native title groups.

24    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.

25    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.

26    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 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.

27    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.

28    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.

29    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.

30    Members of the Central West Wik 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.

31    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 five ancestor reports relating to the Central West Wik people.

32    As part of the group description process, the State sought further information from the CYLC regarding the composition of the Central West Wik group, including regarding whether all of the apical ancestors from the neighbouring Wik and Wik Way determination areas should be named in the Central West Wik native title holding group description, and whether the traditional laws and customs of the claimants provide that a person who has a parent from the “Wik cultural bloc” (or “Wik and Wik-Way cultural bloc”) acquires native title rights in the clan estate where they are born when that place is not within their own ancestral estate. In their responsive report dated 13 June 2023, Dr Murphy and Mr Winters concluded that it would be inappropriate to name all of the Wik and Wik Way putative apical ancestors in the definition of the native title holding group of the Central West Wik claim area, and that while the traditional laws and customs of the claimants provide that a person may have a spiritual and emotional connection to their own and their forebears’ places of birth, this by itself does not give them proprietary rights in those places, regardless of whether they have Wik (or Wik-Way) ancestry. The State submits that as a result of this dialogue with the CYLC, it is satisfied of the credible basis for the proposed group description. The parties reached agreement on the final group description for the Central West Wik native title group on 3 March 2023.

33    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 Central West Wik determination. The Central West Wik authorisation meeting was conducted on 16 May 2023. At that meeting, the group considered the terms of the Central West Wik 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

34    The applicant’s authority to enter into the Central West Wik 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.

35    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.

36    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.

37    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 CENTRAL WEST WIK NATIVE TITLE GROUP TO THE DETERMINATION AREA

38    In his 2018 report, and supplementary 2019 report, Dr McKeown presents a detailed analysis of the connection of the Central West Wik 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.

39    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 therefore at the time of the British assertion of sovereignty. He describes in detail the traditional laws and customs observed, including those giving rise to rights and interests in lands and waters. Dr McKeown 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.

40    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.

41    The evidence supporting the Central West Wik group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Dr McKeown, Ms Waters, Dr Murphy and Mr Winters. 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.

42    Finally, it is appropriate to set out here some of the accounts given by Central West Wik native title group members, whose lived experiences and connections to culture and country provide the foundation for this determination. This testimony is central to establishing a credible basis for the recognition of native title. As I noted in the 2021 determinations, it is the group members who “live and understand their law and custom, and how it connects them to their country”: Kuuku Ya’u determination at [68]; Uutaalnganu determination at [59].

43    Willie Lawrence is a Wik Mungkan man through his father Jimmy Lawrence, who was a Wik Mungkan man. Mr Lawrence explains that he gets his country through his father, and this is why he can speak for that country, after his brother Victor passed away and passed the responsibility onto him.

44    Mr Lawrence describes where he grew up, lived and worked, and his family. His story demonstrates the powerful and continuing connection he has to country, particularly the areas around Rokeby Station and Merapah Stations. He explains the significance of his family members being buried at Rokeby:

My father died at Rokeby station and he is buried there. His grave is down there, with my brother Victor’s grave, my grandparents and other relatives. We were together at Merapah and Rokeby, my brothers, sisters and cousins. We grew up from when we were little kids to when I was a big man. Then I went off and worked in different places.

My brother Victor is buried at Rokeby. The rangers helped arrange that, we took the body back to Rokeby and buried him there. It makes me happy that he is buried at Rokeby, because I don't need to worry about him. If he wasn’t buried there his ghost might come around, his spirit might come around. It’s better that he is at Rokeby, I don’t worry if I see him down there.

45    Mr Lawrence recounts his youth with his family around Rokeby and Merapah Stations:

I grew up around Rokeby Station and Merapah Station, from when I was a baby until I was a man. I didn’t go to school. When I was old enough I started working. I grew up around Merapah and Rokeby until I was old enough to work. Even though I didn't go to school I know a lot from working and being on country. I know our country around Rokeby Station because I grew up there. My father and his father, they used to teach us about Rokeby, our secret places and tell us what to do when we worked on the stations. My father and I worked together until I was a man. He used to lead me around on horses, with a rope through the horse’s bit. I rode in a little saddle all day, minding the other horses.

46    Mr Lawrence also describes his early twenties working on stations all around the Cape York region, but he explains why country around Rokeby is different for him: “I know where I come from and that is my country.” He explains:

People from outside mobs worked at Rokeby, but they don’t belong to our country. Working at Rokeby doesn’t mean that they own Rokeby. It was the same for me. I worked at stations all over Cape York, and I know a lot about the country where I worked, but that doesn’t mean I belong to those places. I don’t own those places.

47    Mr Lawrence explains how learned his culture and country from his father:

I learned our culture from my parents and grandparents. My father showed and taught me about Rokeby and our customs, as well as how to ride and work cattle. My father showed me how to fish and catch turtle. He told me about secret places and I watched how he put the smell on strangers and warmed them up. He taught me language and how to talk to our old people, our spirits.

48    As one of the oldest Wik Mungkan people, Mr Lawrence says: “I have a lot of knowledge about Rokeby and that’s my country. That’s why the families will come to me when a decision needs to be made about our land.” He explains the importance of seeking permission to go onto someone else’s country, and describes introducing strangers to country:

When we take people to country, we make a fire and warm them with the smoke. We put ironwood leaves on the fire when we warm people up. We put a smell on them as well, our underarm smell. We sing out to the old people in language and tell them who we are with and what we are doing. When someone is warmed and has our smell on them, they can go to country and they will be okay. They won’t get sick. They can go onto country no-worries then.

49    Mr Lawrence is also responsible for passing on knowledge of culture and country to younger generations. He says:

I teach the younger ones about our culture, country and mustering. Some of the younger ones, like my son Jimmy have other work and priorities at the moment, but Patrick, Nicholl, Andrew Coleman and Cedric Kepple they get involved at Rokeby. The young ones listen and I tell them what to do or what not to do. I tell them that the old people can see us, even though we can’t see them.

50    Douglas Roy Ahlers identifies as Wik Mungkan, through his maternal grandfather, and Ayapathu, through his father and maternal grandmother. He explains how he was meant to be born at Rokeby Station, and considers it his birth home. He describes his mother’s country as stretching from Rokeby to Merapah and explains that he considers this his “spiritual home”:

The Mumpa Aw covers that whole area, and that is why I consider it my spiritual home. That spiritual connection gives me a right to speak for that country. Mumpa Aw is my totem. Mumpa is a man from the Dreamtime. His country is Merepah, including a place called ‘Old Man Plane’. My spiritual home is in that country. The area was previously called Rokeby National Park … but is now called the Oyala Thumotang National Park. My spiritual home is my real home regardless of what it is called.

51    Mr Ahlers explains the nature of his right to speak for, make decisions about, and control access to, and use of, this country:

If they were to build a highway through my Wik Mungan country, I would sit together with the Kepples such as Old Man Morris Kepple, Rachel Kepple and Joylene Kepple, and the Wankulas such as Smithy Wankula Kepple, Leslie Kepple, Cedric Kepple, Katie Kepple, May Kepple, Lorraine Kepple and Marilyn Kepple. We would talk and decide what would need to be done.

52    Robert Nelson’s maternal grandfather is Jimmy Lawrence, and Willie Lawrence is his Uncle. Mr Nelson describes his country as stretching from Spear Creek to the Archer River. Mr Nelson got his country through his father, but explains that he is still allowed to go back to his mother’s country. He recounts growing up on various stations, including Rokeby Station, and mustering from about 10 or 11 years old with his dad. He also recounts learning about bush medicine and hunting from his grandad Jimmy Lawrence and his uncle Victor.

53    Mr Nelson explains how he must ask Willie Lawrence what should be done with his mother’s country:

I go back to Oyola Thumotang as a worker. I go fishing down in my mother’s country, and if Uncle Willie Lawrence and some of the Kepples like Nickel Kepple, are working I will go and help them out. When I go to my mother's country, I ask my Uncle Willie Lawrence first what to do. I don’t tell the old people there what to do. I will go along with the word of my Uncle until he asks me what I think. If they ask me what I think, I will tell them; I don’t tell my Uncle what to do, but he will ask me and we will make a plan together.

54    Mr Nelson describes the importance of visiting his grandad and Uncle who are buried at Rokeby Station before he goes fishing. He also explains his role in passing on his knowledge about this country to younger generations:

I go to story places, and we take grandkids and we teach them about what is there and what they shouldn't do. I go with my daughter Joanne and her family. I have a lot more to show them down there and I will take them there this year and I will show them the places and what to do and not to do. They can then understand what they have to do if they go there by themselves.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

55    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.

56    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.

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

58    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

59    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

60    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.

61    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

62    In reasons for a determination in favour of the Nanda People in Western Australia, I set out my approach to the question of “appropriateness” and the Court’s function: see Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56], by reference to earlier authorities. In Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [63]-[65], I explained the particular importance of the role of the State in the consent determination process. As I did in the Kuuku Ya’u and Uutaalnganu determinations, I adopt and apply the observations I made in Drury and Taylor here.

63    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 Central West Wik 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.

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

ORDER SOUGHT UNDER S 199C(1A)

65    There are two current indigenous land use agreements (ILUA) in place in relation to parts of the Central West Wik 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 Oyala Thumotang National Park (Cape York Peninsula Aboriginal Land) and adjacent Aboriginal Land ILUA (QI2012/071) 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.

66    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.

67    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[.]

68    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 Oyala Thumotang ILUA only identified a sub-group of the Central West Wik native title group, the Wik Mungkan, as one of the parties;

(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 Central West Wik 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 Central West Wik native title group passed resolutions at the Central West Wik authorisation meeting on 16 May 2023, accepting the terms of the Peninsula Developmental Road ILUA and the Oyala Thumotang ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that the ILUAs not be removed from the Register.

69    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.

70    Given the resolution passed by the Central West Wik 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

71    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

72    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 Central West Wik 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 proceeding by the CYLC has been the key to the fulfilment of the ambitious timetable agreed between the parties and endorsed by the Court.

73    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.

74    While there may be many determinations around Australia each year, and while there have now been a number in this proceeding, this is the day for the Central West Wik People. For those who have long been denied any 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:    6 July 2023

SCHEDULE OF PARTIES