FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 17) (Umpila determination) [2023] FCA 734

ORDERS

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

THE COURT NOTES THAT:

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

THE COURT ORDERS THAT:

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

BY CONSENT THE COURT ORDERS THAT:

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

3.    In this determination, unless the contrary intention appears:

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

5.    Native title exists in the Determination Area.

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

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

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

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

a.    the Laws of the State and the Commonwealth; and

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

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

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

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

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

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

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

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

THE COURT DETERMINES THAT:

14.    The native title is held in trust.

15.    The Umpila Aboriginal Corporation Aboriginal Corporation (ICN: 9982), 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 Umpila People. The Umpila People are those Aboriginal persons who are descended by birth, or by adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Umpila group, from one or more of the following apical ancestors:

(a)    Charlie Captain;

(b)    Puyalkuupi (first husband of Emma Clarmont);

(c)    Ampulukuupi and his wife Wukaaka;

(d)    Annie Wapun Matty;

(e)    Jimmy (father of Douglas Ropeyarn);

(f)    Tommy Clarmont;

(g)    Topsy Clarmont;

(h)    Charlie Clarmont;

(i)    Lizzie of Night Island;

(j)    Chaaminchinyu (aka Tommy Thompson and Tommy Nebo (Nipu));

(k)    Yi’alma;

(l)    Mother of Charlie Bezai;

(m)    Emma (later Woodward);

(n)    Kaputhana;

(o)    Mary Ann Kamanmutu;

(p)    Frank Port (Nangkayunumu);

(q)    George Rocky 1 (Marrakañtyinhu aka Old Jack Rocky);

(r)    George Rocky 2;

(s)    Johnny (father of Johnny Tayku Clarmont); or

(t)    George Clarmont and his sister Miriam Clarmont.

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 KULLA (McIlwraith Range & Mount Croll) ILUA (QI2008/018) registered on 13 May 2009 on the Register of Indigenous Land Use Agreements.

2.    The rights and interests of Cook Shire Council:

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

(b)    as the:

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

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

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

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

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

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

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 2(a), (b) and (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred on in this paragraph 2 and paragraph 5 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 2(c) above; and

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

3.    The rights and interests of the State of Queensland, Lockhart River 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.

4.    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.

5.    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).

6.    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.

7.    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.

8.    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 High Water Mark at the mouth of Massy Creek at Latitude 13.911497° South and extending generally westerly and north-westerly along the centreline of that creek until it intersects the foothills of the McIlwraith Range at Longitude 143.404595° East, Latitude 13.829962° South, being a point on a line of the 100m contour elevation; then south-easterly and generally northerly along that contour until Longitude 143.431816° East, Latitude 13.670198° South; then north-westerly to a point on a line of the 100m contour elevation at Longitude 143.412112° East, Latitude 13.644276° South; then generally northerly along that contour until Longitude 143.405724° East, Latitude 13.599264° South; then north-easterly to a point in the foothills of the McIlwraith Range on the 50m contour at Longitude 143.41033° East, Latitude 13.585909° South; then south-easterly to the centreline of Leo Creek at Longitude 143.411002° East, Latitude 13.586323° South; then generally north-easterly along the centreline of that creek to its intersection with the centreline of Nesbit River; then north-easterly to a point in the foothills of the Macrossan Range on the 50m contour at Longitude 143.492984° East, Latitude 13.502937° South; then north-westerly and north-easterly along that contour to Longitude 143.493056° East, Latitude 13.488094° South; then north easterly to the Macrossan Range ridge line at Latitude 13.482002° South; then northerly along the centreline of that range until Latitude 13.382291° South, further described as:

extending northerly along the centreline of the Macrossan Range until a point at Latitude 13.455208° South; then northerly to a point on the northern boundary of Lot 16 on SP121904 (Kulla (McIllwraith Range) NP CYPAL) at Longitude 143.497529° East, Latitude 13.451533° South; then northerly along the northern boundary of that lot to a point at Longitude 143.494725° East, Latitude 13.425721° South; then northerly to a point on the centreline of the Macrossan Range at Latitude 13.420338° South; then northerly along the centreline of that range until Latitude 13.408003° South; then northerly to a point on the western boundary of Lot 17 on SP104551 at Longitude 143.496663° East, Latitude 13.407346° South; then northerly along the western boundary of that lot until a point at Latitude 13.382291° South;

then north-westerly to the summit of Cone Peak at approximately Longitude 143.491676° East, also being a point on the centreline of the Macrossan Range and the western boundary of Lot 17 on SP104551; then easterly along the western boundary of that lot until Longitude 143.492882° East; then easterly to a point on the eastern boundary of Lot 16 on SP104551 at Longitude 143.567011° East, Latitude 13.370487° South (Kaapakachingunuma) passing through the following coordinate points:

then southerly along the High Water Mark 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).

    Mountain ranges, beaches and sea passages sourced from Department of Resources, Qld (August 2021).

    Mountain peaks and capes sourced from Department of Resources, Qld (August 2021).

    Contours - 10 metre interval sourced from Department of Resources, Qld (August 2021).

Reference datum

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

Use of Coordinates

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

Schedule 4 – Description of Determination Area

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

Part 1 — Exclusive Areas

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

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

Part 2 — Non-Exclusive Areas

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

Schedule 5 – Areas Not Forming Part of the Determination Area

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

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

2.    Specifically, and to avoid any doubt, the land and waters described in (1) above includes:

(a)    the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied; and

(b)    the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

3.    Those land and waters within the External Boundary that were excluded from the Native Title Determination Application on the basis that, at the time of the Native Title Determination Application, they were an area where native title rights and interests had been wholly extinguished, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, including, but not limited to:

(a)    any area where there had been an unqualified grant of 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 Umpila People. This determination is being made on the same day as a determination recognising the native title of the Central West Wik People, and the day after determinations recognising the native title of the Taepithiggi People and 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. The Umpila People have had to wait a little longer than initially planned for this determination.

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 below. 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 Umpila People’s traditional country is agreed to include a narrow strip of country along the eastern coast of Cape York, running north of Princess Charlotte Bay from Massey Creek to about Friendly Point and west to Macrossan Range, Leo Creek and the eastern slopes of the McIlwraith Range. It includes the lower reaches of the Nesbit and Chester Rivers. It excludes the area between Massey Creek and Breakfast Creek, which is the subject of a dispute with the Lama Lama native title group. Like many other determinations in this proceeding, there are large areas in which exclusive native title is being recognised: for the Umpila People, more than 76,000 hectares, almost all of the determination area.

6    The material filed in the Umpila determination application provides an ample basis for the Court to accept there is a credible basis for traditional connection of the Umpila People to the determination area.

7    Father Brian Claudie gets his rights and interests in Umpila country through his mother’s family. He says:

It is important that young people be with the elders and come along with them so that the knowledge can pass down, and so that the old knowledge can be passed to new knowledge. But it has to come from the heart, when it is time for old knowledge to pass to new knowledge. It comes from the heart to be strong about your land and your culture.

…

I always tell the younger ones ‘your bloodline is running through the land and the sea’. I tell them where their connection is, and how they are connected to the country. It is important to keep our connection to the country and this will go on generation to generation. The younger ones will pass on all these stories and the connection to the land and the sea will stay. It is important to live on the country and from the old knowledge it comes all the way to the new generation.

8    Father Claudie’s words describe better than the Court ever could the connection he and other Umpila People share with their land, and the importance of future generations maintaining that connection. The Court’s orders represent the long overdue recognition by Australian law of the land and waters of the Umpila People. Recognition of native title by the Court will assist the preservation and protection of Umpila country and empower the Umpila People to continue to look after their country as they have done for thousands of years and to pass their traditional knowledge down to future generations.

9    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

10    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.

11    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 Umpila determination in particular, in addition to the above affidavits, the applicant also relied on material annexed to affidavits of Parkinson Wirrick affirmed on 22 October 2021 (Wirrick 2021 affidavit) and 2 June 2022 (Wirrick 2 June 2022 affidavit). The State relied on an affidavit of Kate Evelyn Marchesi affirmed on 12 June 2023.

12    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 Umpila People s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Umpila Aboriginal Corporation (ICN 9982) was nominated as the prescribed body corporate (PBC) for the Umpila People determination, and explains how the PBC was nominated as a trustee PBC on 25 May 2023, some weeks after the Umpila group meeting on 3 May 2023. An alternative corporation (Malngkanichi Pama (CNCRM) Aboriginal Corporation (ICN 8836)) was also put forward but was not endorsed. Ms Malyon annexes to her affidavit the notice of nomination for the PBC and its consent to act as the relevant PBC for the determination area.

13    In relation to the Umpila 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 of Dr David Thompson entitled “Lockhart River Coastal Region” filed on 31 October 2017;

(b)    expert report by Dr Kwok entitled “Northern Central and Princess Charlotte Bay Region” filed 16 November 2017;

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

(d)    supplementary expert report of Dr Thompson dated 4 March 2019 and filed on 22 October 2021, annexed to the Wirrick 2021 affidavit;

(e)    supplementary expert report of Dr Kwok dated April 2019 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit;

(f)    witness statement of Father Brian Claudie dated 22 February 2019 and filed on 22 October 2021, annexed to the Wirrick 2021 affidavit;

(g)    witness statement of Amos Hobson dated 4 March 2019 and filed on 22 October 2021, annexed to the Wirrick 2021 affidavit;

(h)    apical report of Ms Waters regarding Charlie Bezai dated 14 December 2020 and filed on 22 October 2021, annexed to the Wirrick 2021 affidavit;

(i)    apical report of Ms Waters regarding Frank Port (Nangakayunumu) dated 12 June 2020 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit;

(j)    apical report of Ms Waters regarding George Rocky 1 (Marrakantyinhua) aka Old Jack Rocky dated 30 June 2020 and filed on 2 June 2022, annexed to the Wirrick 2 June 2022 affidavit;

(k)    apical report of Ms Waters regarding George Clarmont dated 9 November 2020 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit; and

(l)    apical report of Ms Waters regarding Johnny (father of Tayku Clarmont) dated 10 November 2020 and filed on 9 June 2023, annexed to the Wirrick 9 June 2023 affidavit.

14    It is apparent from the sequence of this material that an iterative and detailed process has been undertaken by the applicant, addressing any concerns of the State, including concerns about nominated apical ancestors, to ensure that there was adequate material to support, in particular, the boundary and group descriptions proposed for the determination.

PROCEDURAL HISTORY

15    The Cape York United #1 claim was filed in this Court in December 2014. It covers various types of tenure, including pastoral leases, protected areas, reserves and areas of unallocated State land. It is the largest native title claim currently before the Court, and covers most of the undetermined parts of Cape York.

16    The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made in November 2021: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [3], [12]-[19], [30]-[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]-[20], [28]-[35]. In addition to those determinations, four determinations in this proceeding were also made in July 2022: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773. 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 Umpila People section 87A agreement

17    Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Umpila People native title group was thorough and carefully organised. 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 Umpila People and their neighbours; and the process to settle group composition, by identification of apical ancestors.

18    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 Umpila group.

19    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.

20    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.

21    For the Umpila native title group, this consultation involved engaging Dr Thompson to consult with relevant families, elders and other key persons for a total of 20.5 days. It also involved engaging Dr Natalie Kwok and Mr Winters (for a total of 24 days) as consultant anthropologists for neighbouring groups to discuss common boundaries.

22    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.

23    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.

24    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.

25    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.

26    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.

27    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 native title group: 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.

28    Members of the Umpila People native title group attended these meetings, and agreement was largely reached as to boundaries. The boundary meeting on 31 March 2021 between the Umpila and Southern Kaantju native title groups did not result in agreement as to their common boundary. A mediation on 9 June 2021 conducted by the Federal Court did result in agreement as to their common boundary. It is a strength of the processes undertaken by this Court that they enable native title claimants to be at the forefront of their own negotiations, under the umbrella of a court ordered mediation and with the assistance of legal representatives and other experts, including mapping expertise from the National Native Title Tribunal.

29    The southern boundary of the Umpila determination is not disputed by the Lama Lama native title group, because the determination area does not contain any part of the Breakfast to Massey Creeks disputed area. There were some other 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 five ancestor reports relating to the Umpila People. The parties reached agreement on the final group description for the Umpila native title group on 20 August 2021.

31    By the same kind of processes as I have described for other groups in the Cape York United #1 proceeding, on 30 March 2022 there was an Umpila authorisation meeting. The proposed s 87A agreement was not authorised at that meeting. The debates then surrounding the proposed consent determination for the Umpila People are described in the reasons for judgment in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 5) [2022] FCA 763, where the Court dismissed an interlocutory application by Ms Johanne Omeenyo, a member of the Umpila group, to be joined to the proceeding as a respondent in order to prevent the Southern Kaantju consent determination from going ahead.

32    The non-authorisation in March 2022 meant that the applicant had to undertake the consultation and authorisation process for the Umpila area again. I accept this has been a very difficult period for the Umpila People, with some difficult divisions in the group.

33    In the 2023 Malyon affidavit, Ms Malyon deposes to the notification of another round of meetings to discuss, and this time successfully authorise, the s 87A agreement for the Umpila determination. A second Umpila authorisation meeting was conducted on 3 May 2023. At that meeting, the group considered the terms of the Umpila 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 Umpila 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 UMPILA NATIVE TITLE GROUP TO THE DETERMINATION AREA

38    In his 2017 report, and his supplementary 2019 report, Dr Thompson presents a detailed analysis of the connection of the Umpila People 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. In Ross (No 5), I made findings about how Dr Thompson had, by 2022, travelled well beyond his role as an independent anthropologist and had become an advocate for some Umpila People (see [28]-[32]), such as Ms Omeenyo. Nevertheless, as I also noted at [23], there is no debate about his long period of professional work in the Cape York region and with the Umpila People in particular, and there is no debate about his general anthropological expertise and experience. Therefore, there is no difficulty in relying on his reports and opinions, and I accept it was open to the parties to do so.

39    Dr Thompson describes how archaeological research has shown Aboriginal people were in continuous occupation of the determination areas for at least the last 1,000 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. He explains the impact of European intrusions such as industry, missions and government administration on the claimants’ ancestors. 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 Thompson describes the “unbroken line of cultural continuance” for the Umpila people, as they continue 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 7.16 of his report and especially [684]-[685]:

Chapters 5 to 7 have discussed the issue of there being a normative system of laws and customs among the Kuuku Ya’u, Wuthathi, Uutaalnganu and Umpila people evidenced by their activities, their statements and their actions during claim hearings, and by the anthropological writings about them in the 1930s and in the contemporary period. The author concludes from this material that the claimants’ use of rituals of various kinds, all of which relate to the belief in the presence of ancestral spirits and creator spirits, have established the systems of both law and custom. It is evident that the system of land tenureship is also part of the normative system of traditional law and custom, allocating and authorising, as it does, certain individuals, families and groups to particular areas of land (and sea), including the land claimed here, as of right.

Furthermore, the examples given demonstrate this to be a normative system, that is, they possess a set of rules, which lay down a moral order of what is right, and what is wrong, and which has the threat of punishment through disobedience. This has been demonstrated most clearly (but not only) in the normative system of behaviour, which governs performance of rituals like the Ukaynta and Thiira initiation ceremonies, and in behaviours around certain spiritually potent sites connected with the creator beings. The strong belief system related to the continued presence of ancestral spirits at death places, and other locations strongly associated with them in their corporeal life, provides another example of a set of prescribed behaviours required by Kuuku Ya’u, Wuthathi, Uutaalnganu and Umpila law and custom to be observed at these locations.

(Original emphasis.)

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 Umpila People group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Dr Thompson 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, thorough and careful. 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 some extracts from the evidence of Umpila native title group members 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].

43    Father Claudie is connected to Umpila country through his maternal grandmother Topsy Clarmont. He explains that he follows both his maternal and paternal sides: “I am Kanthanampu, and Night Island, and Payamu - the Rainbow Serpent - and Umpila”.

44    He describes learning about story places on Umpila country, and passing on this knowledge to his children and grandchildren:

I learned from my mother’s family’s side about the Story Places and what fruit to eat and how to catch dugong. In Umpila country, I have been taught by the elders about sacred areas - Bora - for tribal people from south and north. There are two Bora - one to the north and one to the south - called Yipai Bora and Kungkai Bora. They are very sacred. No women and no children are allowed on the Bora place and if they do the elders will punish them. No women, no boys, no girls. For punishment they will be there for 3 or 6 months, and will do their work in that area until the elders will say they are free to go out now. My grandpa Charlie Omeenyo, my big uncle Billie Clermont, Michael and Alex Sandy, and Freddie King, my grandfather on my mother’s side - they all told me that story. I grew up with the elders in my mother’s family and they told me this, and I taught my sons and my grandchildren about these stories. I can’t speak about Bora - that is against the rules.

45    Father Claudie recounts his youth going camping with the elders on Umpila country, hunting for crocodile, in accordance with law and custom:

When I was about 19, I worked on a boat for a man called Mason. He had a boat and the more money he made the bigger boat he would get. When I had a holiday from working on the boat, I would go with the elders right up to Silver Plains … and Rocky, which is a swamp and camping area, and the Massey River. I went with Mum’s family - with my uncle and my grandpa - up to Umpila side where we could shoot crocodile and sell the skin. We would swim over to the other side of the river and sit under the cup tree, kapakai, where you could bend the leaves and use it to drink water. When we got to Rocky we saw the food and stopped to camp. The elders went to shoot the crocodile because in the old days there was money for skins. There were barramundi down at Breakenbank and Lockhart River as well. That’s what we would do in the old days; take the croc skins and salt them to sell them, and get our food at the same time. The old people would sell the skin. The buyer was in Cairns. The elders were doing this so there was no law against it.

46    Father Claudie speaks to the connection between spirit and country:

When a person passes, their spirit goes back to country; it goes back to our homeland. All the spirits need to go back to their homeland. They know where they belong and they go back there. They need to go back to where they belong so the spirit is happy. It’s something that happened in the old days. It was very strong in our hearts -puya kunta [strong heart]. This still happens to people today. The elders can see the spirits walking around on their country looking after it.

47    Mr Amos Hobson is connected to Umpila country through his father, Davis Hobson. He now speaks for his father’s country around the Nesbit River and Leo Creek. He also has Southern Kaantju connections through his mother.

48    In his statement, Mr Hobson describes his childhood spent hunting along sea-country, and how he continues to hunt on his country. He explains how he now takes his son hunting, free diving and spear fishing:

I named my son after my dad. My son is a hunter; he doesn’t like to sit still. He loves spear-fishing underwater, in the freshwater or the salt water. He likes to spear fish wherever on our country. I almost get tired of eating fish when he comes home with his catch! I think my son will follow in my footsteps and speak for his Umpila country. I know he loves going there always on school holidays. It makes me feel good to think that he will be going out on our country when I am old and after I have passed away.

…

I take my son out with me when we hunt dugong and turtles. He likes to be up at the front of the boat. He is good at hunting them, at spearing and jumping in. I sit at the back. I taught my son how to hunt dugong. We take a couple of boys out with us. We free dive on the reef and spear fish. We challenge each other to see who can spear the biggest fish and catch the most fish!

49    Mr Hobson learned about his country and the rules from his grandfathers, uncles and elders:

My grandfathers, uncles and elders, like Thomas Creek, mooka Allan Creek, James Creek, Benny Giblet, Abraham Omeenyo, Frank Hobson, Sammy Short, James Clarmont, Peter Ropeyarn and Joseph Hobson have taught me about my Kaanju and Umpila country. They have taught me to respect country and respect elders. They have shown and taught me other things, like how to hunt and make spears, sacred place and the need to put a smell on strangers or visitors when they visit country. I have told my son these stories and told him about country and important places.

50    Mr Hobson explains the responsibility he has to speak for his country, despite being younger than most men who have that responsibility. He says: “I feel it is my responsibility to take care of our Umpila country and speak for it. I don't want other people in there wrecking it, disrespecting our country”. He explains the rules for visiting country:

If someone wants to come onto my Umpila country at Nesbit River, they should come to me and get permission. By right, that’s the law and protocol we have been following for a long time. If I wanted to go to someone else’s country, I would ask for permission. If I wanted to go hunting in someone else’s country, like up to Wuthathi country, I would ask for permission before hunting up there, out of respect.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

51    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.

52    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.

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

54    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

55    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

56    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.

57    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

58    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.

59    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 Umpila 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.

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

NOMINATION OF A PRESCRIBED BODY CORPORATE

61    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

62    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 Umpila 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.

63    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.

64    The Umpila People have had a difficult road to the orders made today, more difficult than some of the other native title holders in the Cape York United #1 proceeding. They have had to navigate, and are still navigating, deeply felt boundary disputes with some of their neighbours. These are not easy processes for neighbours, especially when there are generally also many family connections. They came very close to authorising a consent determination in March 2022, only for that not to occur. They have been patient and persistent, and by the Court’s orders today, finally, their country is recognised in a way consistent with what they have always known, and have always been taught.

65    As Father Claudie said, it “comes from the heart to be strong about your land and your culture”. This is a time to remember the Umpila elders and ancestors who fought to keep traditional law and custom, and culture, strong and fought to hold onto connection to their country. Recognition has taken too long, but the Court hopes from now forwards, Umpila People can better regain control over what was taken away from them, and make their own choices about how their country and its resources are protected, used and maintained.

Associate:

Dated:    6 July 2023

SCHEDULE OF PARTIES