FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 19) (Kuku Warra determination) [2023] FCA 1314

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 Kuku Warra 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 40 on SP208286 (the park areas).

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 areas, the parties would not oppose an application being brought on behalf of the Kuku Warra Aboriginal Corporation pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to the park areas 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 areas, 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 Part 1 of Schedule 5 are areas where native title has been wholly extinguished.

F.    The area described in Part 2 of Schedule 5 is an area over which the State and the Applicant propose to negotiate an indigenous land use agreement. The parties intend to seek a consent determination for that area following the registration of the proposed indigenous land use agreement.

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)    Rinyirru (Lakefield) National Park ILUA (QI2011/052);

(b)    Peninsula Developmental Road ILUA (QI2016/049); and

(c)    Sandstone Western Land Transfer ILUA (QI2016/047).

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 Kuku Warra 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 Kuku Warra Aboriginal Corporation (ICN: 10063), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LIST OF SCHEDULES

Schedule 1 – Native Title Holders    viii

Schedule 2 – Other Interests in the Determination Area    ix

Schedule 3 – External Boundary    xiii

Schedule 4 – Description of Determination Area    xvi

Part 1 — Exclusive Areas    xvi

Part 2 — Non-Exclusive Areas    xviii

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

Part 1 – Areas excluded on the basis of extinguishment    xx

Part 2 – Other excluded areas    xxi

Schedule 6 – Map of Determination Area    xxii

Schedule 1 – Native Title Holders

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

(a)    King Billy Gilbert;

(b)    Jack Kenny (Mullabum);

(c)    Rosie Braikenridge;

(d)    Billy Dockerty (aka Billy God Help Us);

(e)    Tom (Tommy) Stuckey;

(f)    Kulunjin (father of Charlie Sommerhays);

(g)    Harry Mole;

(h)    Barney Laura;

(i)    Unnamed Mother of Maggie (grandmother of Jack Burton); or

(j)    Jerry Crowbar (aka Kingie Jerry).

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 Kuku Warra and Thaypan Customary Rights and Permanent Arrangements Agreement executed on 20 July 2023.

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

(a)    Rinyirru (Lakefield) National Park ILUA (QI2011/052);

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

(c)    AACAP (Laura) ILUA (QI2016/026); and

(d)    Sandstone Western Land Transfer ILUA (QI2016/047).

3.    The rights and interests of Evan Frank Ryan, Paul Bradley Ryan and Scott Evan Ryan under the Land Act 1962 (Qld) as the holders of rolling term lease (PH 14/2593) for pastoral purposes (also known as Koolburra) over that part of Lot 2 SP280073 that falls within the External Boundary.

4.    The rights and interests of the holders of Occupation Licence No. 14/408 over Lot 408 on OL123.

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

(a)    as the owner(s) or operator(s) of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(c)    for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

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

6.    The rights and interests granted or available to RTA Weipa Pty Ltd (ACN 137 266 285) (and any successors in title) under the Comalco Agreement, including, but not limited to, rights and interests in relation to the “bauxite field” (as defined in clause 1 of the Comalco Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where:

(a)    “Comalco Act” means the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld); and

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

7.    The rights and interests of Cook Shire Council:

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

(b)    as the:

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

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

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

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

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

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

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

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

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

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

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

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

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

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

(i)    as the holder of a distribution authority;

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

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

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

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

10.    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

11.    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

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

(b)    the Fisheries Act 1994 (Qld);

(c)    the Land Act 1994 (Qld);

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

(e)    the Forestry Act 1959 (Qld);

(f)    the Water Act 2000 (Qld);

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

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

(i)    the Planning Act 2016 (Qld);

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

(k)    the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld);

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

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

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

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

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

14.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Schedule 3 – External Boundary

The area of land and waters commencing at the intersection of the centreline of the Mosman River and the northern boundary of Western Yalanji People #4 Determination (QCD2013/002) and Lot 1 on CP825797, then extending northerly along the centreline of the Mosman River until a point a Longitude 144.415903° East, Latitude 15.557999° South, then northerly to a point at Longitude 144.416328° East, Latitude 15.541429° South, then northerly to a gravel pit between Endeavour Battlecamp Road and Olive Vale Homestead at 144.421398° East, Latitude 15.524752° South, then north westerly until a point on the centreline of the Kennedy River at Latitude 15.410278° South, passing through the following coordinate points:

then northerly along the centreline of the Kennedy River until a point at Latitude 15.325504° South, then westerly a short distance to a point on the western bank of that river being the western prolongation of a southern boundary of Lot 10 on SP208286 (Rinyirru (Lakefield) National Park CYPAL), then westerly until the centreline of Eighteen Mile Ridge Creek, then generally north easterly along the centreline of that creek until its intersection with the centreline of the of the North Kennedy River, then generally north easterly, generally north westerly and generally northerly along the centreline of the North Kennedy River until the intersection with the centreline of an unnamed road (also known as ‘the Old Mail Track’) at Latitude 14.821968° South, then easterly along the centreline of that road until the intersection with the centreline of Lakefield Road, also being a point on the Lama Lama Determination (QCD2022/008), then generally south easterly along the centreline of Lakefield Road until it intersects with the centreline of an unnamed road at Latitude 15.095769° South, then north easterly and south easterly along the centreline of that road until the intersection with the centreline of the Normanby River at a place known as Gravelly Crossing at Longitude 144.340399° East, then generally south easterly along the centreline of the Normanby River and the centreline of Cabbage Tree Creek (passing through Cabbage Tree Swamp) until the intersection with the centreline of an unnamed Road (also known as Welcome Road) at Longitude 144.665227° East, Latitude 15.350821° South, then easterly along the centreline of Welcome Road until a point at Longitude 144.773613° East, then southerly a short distance to the north western corner of Lot 4327 on SP142887 (being part of Normanby Station), then generally southerly along the boundary of that lot until the north western corner of Lot 1980 on SP289701 (being Kings Plains – Alkoomie Nature Refuge), then southerly in a straight line to a corner point on the southern boundary of Lot 3 on BS169 (being Agayrra-Timara Land Trust) at Longitude 144.814835° East, Latitude 15.675689° South, then westerly in a straight line to a communication tower at approximately Longitude 144.582180° East, Latitude 15.663590° South, in an area known as Crocodile Gap, then south westerly approximately 545 metres until the intersection with the 170 metre contour line (representing the baseline of the Great Dividing Range) at Longitude 144.578626° East, Latitude 15.667102°, then generally south westerly, northerly and westerly along that contour line until a point at Longitude 144.540149° East, Latitude 15.661487 ° South, then northerly until the south-eastern corner of Lot 70 on SP136887, then northerly, westerly and south westerly along the boundaries of that lot, passing over the Peninsula Development Road, until its south-western corner, then north westerly a short distance until the intersection with the 150m contour line (representing the baseline of the Great Dividing Range) at Longitude 144.479017° East, Latitude 15.652555° South, then generally south westerly along that contour line until its intersection with the northern boundary of the Western Yalanji People #4 Determination (QCD2013/002) and Lot 1 on CP825797, then westerly along the boundary of that determination and lot until 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 first column of 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 47 of the Native Title Act 1993 (Cth) applies.

* 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:

Part 1 – Areas excluded on the basis of extinguishment

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, including but not limited to:

(b)    the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth), including but not limited to:

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, including but not limited to Lot 103 on SP253484 and Lot 111 on BS41; 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.

Part 2 – Other excluded areas

1.    The areas of land and waters described as Lot 1 on SP116188.

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 Kuku Warra People. This determination is being made on the same day as determinations recognising the native title of the Thaypan and Possum Peoples. The Court also makes a determination with respect to certain individual parcels in favour of the Wik and Wik Way Peoples, being the native title holders determined in Wik Peoples v State of Queensland [2000] FCA 1443. The Wik and Wik Way independent parcels determination is made on the papers.

2    This is the fifth group of consent determinations made in this proceeding, with the first having been made in November 2021.

3    Together, these determinations resolve four parts of the Cape York United #1 claim, within a geographic region that has come to be known as the ‘Wood area’, because Ray Wood was the anthropologist initially engaged by the Cape York United #1 applicant to prepare connection material about the area.

4    The Kuku Warra People’s traditional country is agreed to include land and waters including the town of Laura, Welcome Station, and parts of the Deighton River. It covers more than 330,900 hectares.

5    Accepting that each of the 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. That said, the anthropological material, and Mr Wood’s report in particular, reports on the “diverse genealogical ties to multiple areas” in this region, and refers to the “densely over-stitched rights and interests of multiple cognatic families”.

6    The material filed in support of the Kuku Warra determination amply demonstrates a credible basis for the traditional connection of the Kuku Warra People to the determination area.

7    Joseph Lee Cheu, a Kuku Warra man, describes the intergenerational significance of the connection of Kuku Warra People to this country. He states:

A lot of people don’t understand this but it doesn’t matter where you were born. You are meant to go back to your parent’s homeland.

8    Today’s determination recognises the longstanding connection of the Kuku Warra People to their country, and is an important step in ensuring that this connection can continue for generations to come.

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 29 September 2023. The State filed its submissions on 13 October 2023. Each set of submissions was made jointly with respect to each of the determinations falling within the Wood area. The Court has been greatly assisted by the parties’ submissions.

11    The applicant relied on a number of affidavits dealing with matters relevant to the determinations. First, an affidavit of Kirstin Donlevy Malyon affirmed 27 September 2023 and filed 29 September 2023 (2023 Malyon affidavit). Second, an affidavit of Parkinson Wirrick affirmed 26 September 2023 and filed 29 September 2023 (2023 Wirrick affidavit). Third, paragraphs [5] to [30] of an affidavit filed earlier in the proceeding of Ms Malyon affirmed 22 October 2021 and filed 27 October 2021 regarding the re-authorisation process undertaken by the applicant in the period from April to September 2021 (2021 Malyon affidavit). The State relied on an affidavit of Kate Evelyn Marchesi affirmed 12 October 2023 and filed 13 October 2023.

12    Ms Malyon is 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 s 87A agreement for the Kuku Warra native title group was approved, including pre-authorisation and authorisation meetings. She deposes to how the Kuku Warra Aboriginal Corporation was nominated as the prescribed body corporate (PBC) for the Kuku Warra 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.

13    In terms of connection material for the four determinations, the applicant relied on an expert report of Kate Waters dated 5 March 2018 and filed 6 March 2018 (Waters 2018 report).

14    The applicant also relied on the following affidavits with respect to the Kuku Warra, Thaypan and Possum determinations:

(a)    an expert report of Ray Wood dated 25 October 2017 and filed 2 November 2017 (Wood 2017 report);

(b)    an expert report of Dr David Thompson dated and filed 16 November 2017 (Thompson 2017 report);

(c)    a supplementary expert report of Dr Thompson dated 29 March 2019 and annexed to the 2023 Wirrick affidavit (Thompson 2019 report); and

(d)    a supplementary expert report of Mr Wood dated 17 June 2020 and annexed to the 2023 Wirrick affidavit (Wood 2020 report).

15    In terms of connection material for the Kuku Warra determination specifically, the applicant relied on the following:

(a)     an expert report of Dr Kevin Murphy dated 30 November 2017 and filed 30 November 2017 (Murphy 2017 report); and

(b)    each of the following, which are annexed to the 2023 Wirrick affidavit:

(i)    an affidavit of Dwayne Lewis Musgrave dated 16 April 2021;

(ii)    an affidavit of Joseph Lee Cheu dated 31 August 2021; and

(iii)    an apical report of Ms Waters dated 24 June 2022 regarding Jerry Crowbar.

PROCEDURAL HISTORY

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

17    The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made in November 2021: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [3], [12]-[19], [30]-[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]-[20], [28]-[35]. In addition to those determinations:

(a)    four determinations in this proceeding were 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;

(b)    three determinations were made 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; 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; and

(c)    five determinations were made in July 2023: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 14) (Taepithiggi determination) [2023] FCA 731; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 15) (Weipa Peninsula People determination) [2023] FCA 732; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination) [2023] FCA 733; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 17) (Umpila determination) [2023] FCA 734; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 18) (Atambaya #2 determination) [2023] FCA 735.

18    The Court’s reasons in each of those determinations note the complex and individualised process leading to each determination within the overall Cape York United #1 claim.

AUTHORISATION

The Kuku Warra section 87A agreement

19    Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Kuku Warra 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 closely to involve landholding groups: the process to settle boundaries between the Kuku Warra 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 each of the Kuku Warra, Thaypan and Possum claims, and at [72]-[96] of the 2023 Malyon affidavit, Ms Malyon describes the process as it unfolded for each group, including the Kuku Warra group.

21    Putative boundary descriptions for the Kuku Warra, Thaypan and Possum native title groups were developed from desktop research by the CYLC in consultation with Mr Wood and Dr Kevin Mayo. They were provided to the State on 16 May 2022 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 each of the Kuku Warra, Thaypan and Possum native title groups. This commenced on 11 July 2023 and involved engaging:

(a)    Mr Wood for a total of 12 days in Cape York and in Cairns, who consulted with relevant families, elders and other key persons within the Wood area, at both boundary meetings and individual or family consultations;

(b)    Dr Mayo for a total of 23 days in the Cape York and Cairns region, who consulted with native title groups, families and elders; and

(c)    Dr Redmond for a total of 11 days, who consulted with relevant families, elders and other key persons from neighbouring groups to discuss common boundaries, particularly those native title groups for the Corrigan Report area.

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 June 2022 and April 2023 with each of the Kuku Warra, Thaypan and Possum 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 16 November 2022 and 13 April 2023. A CYLC lawyer and anthropologist were present at each boundary meeting. A consultant anthropologist was present at each meeting.

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 Kuku Warra, Thaypan and Possum native title groups met with their neighbours over a period of around five months. The boundary meetings relevant to these groups were:

(a)    a meeting on a meeting on 16 November 2022 between the Kuku Warra, Thaypan, Possum, Olkola and Western Yalanji native title groups;

(b)    a meeting on 21 November 2022 between the Kuku Warra and Yiithuwarra native title groups;

(c)    a meeting on 22 November 2022 between the Kuku Warra and Guugu Yimidhirr native title groups;

(d)    a meeting on 23 November 2022 between the Kuku Warra, Possum and Western Yalanji native title groups and Lakeland Downs families;

(e)    a meeting on 14 December 2022 between the Thaypan and Possum native title groups;

(f)    a meeting on 1 February 2023 between the Thaypan and Possum native title groups;

(g)    a meeting on 2 February 2023 between the Kuku Warra, Thaypan and Possum native title groups;

(h)    a meeting on 13 February 2023 between the Kuku Warra, Guugu Yimithirr and Western Yalanji native title groups and Lakeland Downs families;

(i)    a meeting on 14 February 2023 between the Kuku Warra and Yiithuwarra native title groups; and

(j)    a meeting on 13 April 2023 between the Kuku Warra and Thaypan native title groups.

28    Members of the Kuku Warra, Thaypan and Possum native title groups attended these meetings. In each case, resolutions with descriptions of boundaries were agreed to by consensus, confirmed by a resolution from each group and recorded in writing.

29    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 Kuku Warra determination. The Kuku Warra authorisation meeting was conducted on 19 July 2023. At that meeting, the group considered the terms of the Kuku Warra s 87A agreement, and directed the applicant to enter into that agreement. That 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

30    The applicant’s authority to enter into the Kuku Warra 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. The State has maintained the same position in its submissions on these current determinations.

31    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.

32    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.

33    I adopt those reasons in each of the four 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 KUKU WARRA NATIVE TITLE GROUP TO THE DETERMINATION AREA

34    In his 2017 report and supplementary report, Mr Wood (and Dr Thompson, who prepared a chapter within Mr Wood’s 2017 report) presents connection material in relation to the areas he was briefed to report on. In preparing the reports, Mr Wood states that he relies on existing anthropological and linguistic research as well as his own research, including extensive site-mapping by four-wheel drive, boat, and foot.

35    Mr Wood describes how the ancestors of the native title group members occupied the determination area prior to effective sovereignty. He describes at [84] of his 2017 report how “all clans and language divisions of the Report Area are interlocked by a common body of customary law and depend on that for a reasonably stable jural and social order”. He also describes the importance of family connections and stories, and how:

The Stories, their sites, and the presence on an estate of its ‘Old People’ – the spirits of both its recent and ancestral dead – together comprise the repository of clan identity and owner status, and provide both with transcendent authority. That is, these things serve to elevate estate tenures above the merely human level, by embedding them in the origins of the cosmos and the spiritual power of myth and ancestors.

(Emphasis omitted.)

36    In his conclusions as to pre-sovereignty society and law and customs, Mr Wood describes connection in the following terms:

persons and landed groups are seen as related to their country in a way that is similar to the flesh and blood way they are related to kin. This is what connection to land in part means in Peninsula thought: a literal, organic connection, always implicating the notion of source, and of an order in which the boundaries are weak between the living person and their place, and between the country and its ancestral dead. A person and the places he or she was intimately associated with during their life become mutually identified, not just in the memory of the living, but in the sense of entering into each other’s constitution. They cannot be separated in quite the way that is possible in western thought, with its fuller distinction between what westerners understand as animate subjects and inanimate objects. In Aboriginal thought the boundaries of the person are not co-terminus with their body, nor so clearly drawn off from their environment.

Given such a cosmology, a belief in direct, immediate communication between people and the country and its spirits is unsurprising, and all older and many younger people with whom I have spoken have personal experiences of this to relate. When in country that is not one’s own, such communication is expected to be in the nature of hostility from the resident Old People and site beings toward oneself as a trespasser, and is associated with anxiety, sleeplessness, frightening apparitions of old men or women, difficulty in finding food and water, and often accident or illness. But in their own country a person is expected to feel at ease, and may receive intuitions and messages from the Old People, who will be pleased with (and revitalized by?) their presence in the country, by their smell, and by the smoke of their fires. They will “give them” (assist them to find) food and water from the country, and will appear to them in the guise of animals that approach the camp to peer at them, signal, or otherwise behave in unusual ways.

37    Mr Wood explains that this connection continues today, concluding that:

the character of Aboriginal society within and around the Report Area retains the same essential ordering by lateral kinship and vertical descent grouping, and the lives of the claimants are lived within a cultural and kinship world strongly diverging from that of their European neighbours.

38    He also concludes that the traditional owners of the area are actively involved with their traditional country, through their daily lives, employment projects in the region, and the customary activities of camping, swimming, fishing, hunting and gathering resources of the region for cultural purposes.

39    The applicant submits that the connection material establishes a credible basis for the proposition that the Kuku Warra, Thaypan, Possum and Wik and Wik Way native title groups have maintained their connection to their respective determination areas under their respective traditional laws and customs since prior to sovereignty. The State supports that submission, and I accept it.

40    The evidence supporting the Kuku Warra group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Mr Wood, Dr Murphy and Ms Waters. Ms Waters’ work concentrates on the correct identification of apical ancestors, and is, like her 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.

41    It is appropriate to refer also to Kuku Warra group member evidence, and their lived experience which provides a foundation for this determination. The Kuku Warra evidence is important. As I explained in the 2021 determinations, it is the group members who “live and understand their law and custom, and how it connects them to their country”: Kuuku Ya’u determination at [68]; Uutaalnganu determination at [59].

42    Joseph Lee Cheu is connected to Kuku Warra country through his mother. He describes how his mother could speak Kuku Warra but that he and his siblings did not get the chance to learn the language. He describes his connection to country, and rights to that country. He explains:

The only thing you’re allowed to leave is tracks. You aren’t allowed to take anything from my country. That’s really the belief on my country: do not take anything, do not leave anything.

You can’t even say “Look at that finger on the wall there, same size as me.” You can’t put your hand on the painting on the wall – you can only look at it.

Before I walk into any country, even my own country, before I pull my line out if I’m fishing I’ll sing out to the old people and say “Hey old people, I’m coming to take some fish. I just want a little bit.” Then I'll put my line in the water and catch a fish.

They won’t allow me any more than thirty or forty fish. We can only take up to something like ten, fifteen, twenty, but that’s it. Sometimes we don’t really need that many because there’s only five or six people in our crew. Two for me, two for someone else in my family or my crew. If we take any more, next time we go there, we won’t get a fish.

It does not matter whether it is my country or someone else’s country from my family, we all have to do the same thing. If we do get a good catch, we must always leave three or four fish on the banks after we leave to show appreciation for the people of the country, that we left some fish there for the old people.

43    Mr Lee Cheu talks about fishing and hunting around his country, including fishing swordfish, stingray, barramundi, jewfish, spotties and rifle fish, and hunting for pig, bandicoot, porcupine and wallaby. He explains in detail his knowledge about cooking porcupine, and hunting, cooking and eating different types of turtle, as well as flying fox. He also talks about learning about bush medicine from his uncle Henry:

My uncle Henry showed me about bush medicine and other bush tricks, when I was seven or eight down near the south side of the Palmer River.

There is a lot of bee hives on my country, like the one off the road down at Jowalbinna.

The bees build nests on any tree. The old English bee is a bit savage. Native bees are alright. We might get them all through our hair though. There are two types of bee - one is our totem bee and the other is the English bee.

The best time to get honey is now - getting close to winter. In the middle of winter, we cut the nest, and it is loaded with honey. The bees stop working in winter and they live off what they have made in the dry season. The honey is good for headache. My Dad showed me that you can mix the honey with water and drink it.

There are some families around here using bush medicine. I don’t use bush medicine nowadays and I don’t think my brother Francis does either.

I remember Nancy Lowdown broke out with sores one day and she went down to the creek down here at Laura and dug out some tree root, boiled it, bathed in it, and a week later it cleared it all up. That tree is called white currant. It has a language name but I don’t know it.

With green ants, you crush the nest, mix it with water and it cures a headache too. If you catch the ants at the right time of the year they have white eggs, and when you crush the eggs with water, it makes a milky drink.

For a toothache, you get the gum or sap from the bloodwood tree and you can just rub it on your tooth. If you got a really loose tooth, you rub the bloodwood sap in and around the tooth, wait a few minutes, then pull the tooth out. The bloodwood sap numbs the area.

The quinine tree, you strip the skin or the bark off the fruit, like peeling an orange, then rub the inner fruit on the affected are. It has a really bitter taste.

At the bottom of the black boy tree, you get a resin right down near the root. You take the root of the tree, cut it with a tomahawk, scrape the dirt off, heat the root on hot coals, and the resin or sap comes out of the root. You can mould the sap to bind things together.

44    Mr Lee Cheu goes into great detail about many of the stories he had been taught about his country, and about significant places on his country. He explains that he isn’t able to tell some stories and where to go to find some sites, except to other Kuku Warra group members, because they are sacred places.

45    He also talks about important story places, and rock art and body remains, on his country:

Dick Roughsey and Percy Tresize and my Dad opened a lot of the rock art up through the Giant Horse Gap, Split Rock [U13] and a couple other lower ones. I think I saw a platypus at Giant Horse Gap. Whatever our ancestors saw, they put it on the rock.

I know for a fact that my dad said there’s a lot of rock art there - that there are thousands of rock art that have never been opened to the public and that they are very sacred. A lot of them have body remains in them, especially up the Deighton River. That’s our mother country from our grandmother. On our mothers’ side, we don’t even go up there. Even our Dad Caesar said “No, that’s my mother-in-law's country and I’m only her son-in-law. I can’t go up there.”

46    Mr Lee Cheu also states the importance of certain ceremonies and rituals, including what he describes as being “baptised culturally”. He describes:

A couple years ago my son Joseph Jr., brought up his partner and her parents to Laura, and he said “Dad I want to take my future father-in-law down to Kennedy Bend [S13] and I said “Yeah , that's alright, as long as you let me know.” You’re not supposed to go down there unless you've been baptised culturally. It doesn’t matter if you are family. If you want to come with me and look at rock art, I’ve got to welcome you and introduce you to the Spirits.

Late last year I took some main road workers up to Split Rock [U13] and we had to go through a welcoming procedure. I have done a few tours up there and each time I would introduce people to the area and welcome them. I went down to the entrance to the gallery, had a bit of a koowee out and let the old people know that we were at the front door and that we were going to come in to see the rock art. We do the koowee out to let those old people, the Spirits, know that we’re coming and what we’re going to do. It’s like we’re knocking on their door. It’s a strong belief. It’s all still alive, alive and well.

I have heard that baptisms used to happen a lot in that Possum country on the Morehead River. That’s where the Olkola people and Tommyhawk people and Western Yalanji all come across to a big meeting and start trading off things, having a corroboree, and if they were lucky they might pick a wife up there. To baptise someone, we take sweat from our arms and wipe it on the visitor, so the Spirits recognise our smell and know that the visitor is welcome.

I have seen baptisms up in Merepah - the Keppel family have a spring on Merepah Station [N6]. There is clay, white as paper, and they use that for baptisms. They use the same mud to get dressed up in when they are out to kill someone.

Sweat allows our Spirit to know that we are there. We put our sweat on the top of someone’s head and give it a couple of blows, with a mouth full of water. We spray the water on them.

47    Mr Lee Cheu observes that there are not many Kuku Warra people left, but nominates the four or so families who can speak for Kuku Warra country, including his family.

48    The connection material before the Court is ample, persuasive and compelling.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

49    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.

50    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.

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

52    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

53    As the applicant sets out at [45]-[51] 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

54    For the reasons set out at [52]-[57] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

55    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the Kuku Warra, Thaypan, Possum, or Wiki and Wik Way identified parcels determination areas. As the State notes, areas over which previous exclusive possession acts have occurred are expressly excluded. There are no other proceedings before the Court relating to native title applications that cover any part of the area the subject of the determinations that would otherwise require orders to be made under s 67(1) of the Act. I am satisfied that the form of the determinations complies with s 94A and s 225 of the Act and, for the reasons that follow, the requirements of s 87A of the Act are otherwise satisfied.

Sub-section 87A(4)(b): appropriate to make the orders sought

56    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.

57    In relation to the four 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 Kuku Warra 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. These consultations and meetings are the appropriate time for people to come forward and express their views or concerns; if group members have concerns then they need to attend these meetings and participate in discussions at those times. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests.

58    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 the State’s 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)

59    There are three current indigenous land use agreements (ILUA) in place in relation to parts of the Kuku Warra determination area. They are each area ILUAs. The parties agree it is likely that the Registrar’s obligation in s 199C(1) of the Native Title Act is engaged in respect of these ILUAs, unless an order is made under s 199C(1A).

60    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[.]

(Emphasis added.)

61    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), the Rinyirru (Lakefield) and adjacent Aboriginal Land ILUA (QI2011/052), and the Sandstone Western Land Transfer ILUA (QI2016/047) 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, and the potential application of (relevantly) the duty in s 199C(1)(b). The State contends that in the present circumstances the group descriptions of those groups who authorised the ILUAs do not reflect, on the face of the ILUAs or the register extracts, the group descriptions proposed in the draft s 87A agreements for the relevant groups. This would appear to engage s 199C(1)(b), although there is no authority on the interpretation of this provision. The State adds that it was not privy to any materials regarding the original authorisation of the ILUAs, and this is a further basis on which it contends the proposed s 199C(1A) order is appropriate.

62    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.

63    The State submits that sub-s 199C(1A)(a) is engaged because:

(a)    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, or reference to those particular groups who authorised the agreement;

(b)    the Rinyirru ILUA covers the geographical area approximately 65km north-west of Cooktown and north of Laura, over the Rinyirru (Lakefield) National Park and was entered into by Tommy George (Snr), Eric Harrigan (Snr), Elizabeth Lakefield, Francis Lee Cheu, Lewis Musgrave, Hans Pearson and Paul Turpin without inclusion of or reference to particular groups as separate parties or reference to those particular groups who authorised the agreement; and

(c)    the Sandstone ILUA covers a small geographical area 58km northwest of Cooktown and was entered into by the Cape York United #1 applicant, without reference to those particular groups who authorised the agreement.

64    The State further submits that the requirement in s 199C(1A)(b) is met because it is the Kuku Warra native title group that seeks the order under s 199C(1A). It submits the requirement in s 199C(1A)(c) is met, because the Kuku Warra native title group passed resolutions at the Kuku Warra authorisation meeting on 19 July 2023, accepting the terms of the Peninsula Developmental Road ILUA, Rinyirru ILUA, and Sandstone ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that the ILUAs not be removed from the Register.

65    I accept the State’s submissions that the provisions in s 199C(1A) can apply to the three area ILUAs. As I have previously held, s 199C(1A) 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, nor to engage with any construction issues that may arise in relation to s 199C(1)(b). Section 199C(1A) is a facultative provision, and should be construed accordingly.

66    Given the resolution passed by the Kuku Warra 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

67    A separate PBC has been nominated under s 56 of the Native Title Act for each of the Kuku Warra, Thaypan, Possum and Wik and Wik Way independent parcel determination areas. The Kuku Warra Aboriginal Corporation is nominated for the Kuku Warra determination area. 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

68    The Cape York United #1 claim continues to be a highly complex proceeding. It presents claimants, their lawyers and all other parties with many challenges. All concerned continue to work through those challenges with patience and goodwill, and a great deal of cooperation. The Court has been greatly assisted by their respective efforts and is grateful for them. Like the ones which have gone before it, the Kuku Warra determination is a testament to the dedication of a significant number of individuals. The Court acknowledges in particular the members of the applicant, and their committed and highly capable legal representatives, anthropologists, and other expert advisers.

69    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, and to Judicial Registrar Simon Grant who has taken over the case management of the Cape York #1 proceeding after Ms Katie Stride’s appointment to the National Native Title Tribunal. Finally, 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.

70    The Kuku Warra People can be proud of the way in which they have negotiated with their neighbours as part of the process leading up to this determination. They have demonstrated patience, persistence and fortitude in working through the requirements of the Native Title Act. This determination is an important milestone in a long journey for the Kuku Warra People. It contributes to the ability of the Kuku Warra People to make their own choices about how their country and its resources are protected, used and maintained.

Associate:

Dated:    2 November 2023

SCHEDULE OF PARTIES