FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 22) (Wik and Wik Way independent parcels determination) [2023] FCA 1317

ORDERS

BEING SATISFIED THAT AN ORDER IN THE TERMS SET OUT BELOW IS WITHIN THE POWER OF THE COURT, AND IT APPEARING APPROPRIATE TO THE COURT TO DO SO, PURSUANT TO S 87A OF THE NATIVE TITLE ACT 1993 (CTH)

THE COURT NOTES THAT:

A.    A determination of native title was made in favour of the Wik and Wik Way Peoples on 3 October 2000 (Wik Peoples v Queensland [2000] FCA 1443) (the WWY 2000 Determination) in relation to an area of land and waters along the western coastline of Cape York Peninsula, generally from around Archer Bay, in the north, to Christmas Creek, in the south, including around the township of Aurukun, plus an additional area inland from that coastline including part of Watson River.

B.    Schedule 1 of the WWY 2000 Determination expressly excluded:

(i)    the land and waters in around the town of Aurukun; and

(ii)    the land and waters within the area covered by a corridor 15 metres either side of the centre line of the present alignment of the existing road which connects the town of Aurukun to the Peninsula Developmental Road,

(the WWY Identified Parcels).

C.    The WWY Identified Parcels are wholly surrounded by the WWY 2000 Determination.

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

E.    This Determination relates to those areas identified in recital B(i) above, being the WWY Identified Parcels, which were expressly excluded from the WWY 2000 Determination, and which may be claimed as part of the Native Title Determination Application. In relation to the area described above in recital B(ii), the Native Title Determination Application excludes any area over which there was an existing dedicated public road which wholly extinguished native title rights and interests.

F.    The Applicant agrees that any areas which fall within the terms of Schedule 3 of this Determination are areas where native title has been wholly extinguished.

THE COURT ORDERS THAT:

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

BY CONSENT THE COURT ORDERS THAT:

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

2.    Pursuant to s 199C(1A) of the Native Title Act 1993 (Cth), the Registrar is not to remove the Aurukun Township and Access Road Agreement ILUA (QI2001/026) from the Register of Indigenous Land Use Agreements, at least to the extent the ILUA falls within the Determination Area.

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 2 and depicted in the map attached to Schedule 4 to the extent those areas are not otherwise excluded by the terms of Schedule 3 (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 persons determined to hold the native title in the surrounding WWY 2000 Determination, being the Wik and Wik Way Peoples (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 2 are:

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

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

9.    Subject to orders 10, 11 and 12 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 2 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 1 (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 1 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 not held in trust.

16.    The Ngan Aak-Kunch Aboriginal Corporation RNTBC (ICN: 4097), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(3) 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 – Other Interests in the Determination Area    viii

Schedule 2 – Description of Determination Area    xii

Part 1 — Exclusive Areas    xii

Part 2 — Non-Exclusive Areas    xxxiv

Schedule 3 – Areas Not Forming Part of the Determination Area    xxxv

Schedule 4 – Map of Determination Area    xxxvii

Schedule 1 – 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 Aurukun Township and Access Road Agreement (QI2001/026) registered on the Register of Indigenous Land Use Agreements on 18 March 2003.

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

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

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

(i)    to inspect land;

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

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

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

(d)    under any lease, licence, access agreement, permit or easement relating to their telecommunications facilities in the Determination Area, including but not limited to trustee lease number 719487629 (title reference 51030548) over Lot 324 on SP267943.

3.    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.

4.    The rights and interests of Aurukun 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 4(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 4 and paragraph 6 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 4(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.

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

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

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

(i)    as the holder of a distribution authority;

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

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

(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.

6.    The rights and interests of the State of Queensland and Aurukun 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.

7.    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).

8.    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.

9.    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.

10.    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 2 – Description of Determination Area

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 4, to the extent those areas are above the High Water Mark and are not otherwise excluded by the terms of Schedule 3.

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 4:

* 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 4:

Schedule 3 – Areas Not Forming Part of the Determination Area

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

1.    Those land and waters in the Determination Area, or any part thereof, as described in Part 1 of Schedule 2 and Part 2 of Schedule 2:

(a)    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).

(b)    specifically, and to avoid any doubt, the land and waters, or any part thereof, described in paragraph (1)(a) above includes:

(i)    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.

(ii)    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).

(c)    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.

2.    Those land and waters 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, including, but not limited to, the land and waters within the area covered by a corridor 15 metres either side of the centre line of the present alignment of the existing road which connects the town of Aurukun to the Peninsula Developmental Road.

3.    That part of Lot 211 on SP241404 formerly subject to Sub Lease A on AP9682 on the basis that at the time the Native Title Determination Application was made it was, or had been, the subject of one or more Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B applied.

4.    The whole of the following areas of land and waters on the basis that at the time the Native Title Determination Application was made, public works, as defined in s 253 of the Native Title Act 1993 (Cth), were constructed, established or situated on those areas and ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and s 21 of the Native Title (Queensland) Act 1993 (Qld) applied, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth), including but not limited to:

(a)    that part of Lot 2 on SP266598 subject to an area of closed road identified and delineated by stations C-D-B-C on SP266598;

(b)    Lot 17 on SP248411;

(c)    Lot 8 on SP266597;

(d)    Lot 5 on SP266596;

(e)    Lot 6 on SP266596;

(f)    Lot 3 on SP239437;

(g)    Lot 73 on SP266597

(h)    Lot 4 on SP239438; and

(i)    Lot 247 on SP267943.

5.    The whole of the land and waters described as Lot 20 on SP266606 and Lot 7 on SP266597 on the basis that 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) applied and which wholly extinguished native title.

Schedule 4 – 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 native title over certain identified parcels of land in favour of the Wik and Wik Way native title group, being the native title holders determined in Wik Peoples v State of Queensland [2000] FCA 1443 (WWY 2000 determination). Those identified parcels are within the external boundary of the area determined in the WWY 2000 determination. This determination, made on the papers, is made on the same day as determinations recognising the native title of the Kuku Warra People, Thaypan People and Possum People.

2    This determination marks a recognition of native title over parcels of land lying within the Cape York United #1 claim area, over which native title could not be recognised at the time of earlier Wik and Wik Way determinations. For case management purposes, the present individual parcels fall 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. That is why these parcels are subject of separate orders today.

3    For the reasons set out below, the Court is satisfied it is appropriate to make the orders sought, and that it is within the power of the Court to do so.

THE MATERIAL BEFORE THE COURT

4    The application for consent determination was supported by a principal set of submissions filed by the applicant on 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.

5    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.

6    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 Wik and Wik Way native title group was approved, including pre-authorisation and authorisation meetings. She deposes to how the Ngan Aak-Kunch Aboriginal Corporation RNTBC was nominated as the prescribed body corporate (PBC) for the Possum determination. She annexes to her affidavit the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area.

7    In terms of connection material for the four determinations, including the Wik and Wik Way independent parcels determination, the applicant relied on an expert report of Kate Waters dated 5 March 2018 and filed 6 March 2018 (Waters 2018 report).

8    The applicant submits:

The Wik and Wik Way Peoples IP Determination Area is entirely surrounded by the determination of native title made by the Court in Wik #1 [WWY 2000 determination]. The connection of the Wik and Wik Way Peoples Native Title Group to the Wik and Wik Way Peoples IP Determination Area is supported by inferences that arise from the determination in Wik #1.

9    In the WWY 2000 determination at [10], Drummond J was satisfied as to the propriety of making those determinations and orders sought by the parties to that proceeding.

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

THE AGREED GROUP DESCRIPTION

11    The description of the Wik and Wik Way native title group differs from descriptions of native title groups in other determinations made in the present proceeding, in that no list of apical ancestors is given descent from whom defines membership of the group. Rather, the description of the native title group in the Wik and Wik Way independent parcels determination uses the description “Wik and Wik Way Peoples” which is used in existing Wik and Wik Way determinations, including the WWY 2000 determination. The applicant submits that it is appropriate to use in the present proceeding the same group description for Wik and Wik Way Peoples that has previously been applied by the Court. The applicant also points to the report of Ms Waters, submitting that available evidence shows that this description refers to an identifiable group of people who are mutually aware of who are members of the group. The State does not object to that submission, and I accept it.

AUTHORISATION

The Wik and Wik Way section 87A agreement

12    As I have explained in the three other determinations made today, for the larger areas of the Cape York United #1 claim, a Boundary Identification Negotiation and Mediation or ‘BINM’ process was adopted in April 2020 to deal with the reality that distinctly identifiable groups hold interests in that area: see also Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [18], [25]-[26] and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [19], [23]-[24].

13    The BINM process did not need to be implemented in relation to the Wik and Wik Way independent parcels determination. As the State explains in its submissions, the Wik and Wik Way independent parcels determination only relates to those areas excluded from the WWY 2000 determination, such that resolution on boundaries was not required and agreement had been reached that the group description would reflect that of the surrounding determination.

14    The Court accepts that explanation is correct.

15    In the 2023 Malyon affidavit, Ms Malyon deposes to the notification of meetings to discuss, and subsequently authorise, the s 87A agreement for the Wik and Wik Way identified parcels determination. The Wik and Wik Way authorisation meeting was conducted on 6 September 2023. At that meeting, the group considered the terms of the Wik and Wik Way s 87A agreement, and directed the applicant to enter into that agreement.

The authorisation of the Cape York United #1 applicant

16    The applicant’s authority to enter into the Wik and Wik Way 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.

17    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.

18    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.

19    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 WIK AND WIK WAY NATIVE TITLE GROUP TO THE DETERMINATION AREA

20    I accept the submissions made on behalf of the applicant and the State that the Court can be satisfied, on the basis of the material filed in the proceeding and on the basis of the WWY 2000 determination, that there is sufficient material on connection to sustain the determination of the Wik and Wik Way independent parcels, under s 87A of the Native Title Act.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

21    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.

22    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.

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

24    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

25    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.

26    On 13 October 2023, the parties indicated to the Court by way of correspondence that they had identified a typographical error in a cross reference in Schedule 1, at [4(d)(i)], of the Wik and Wik Way independent parcels s 87A agreement, and the parties provided the Court, by agreement, with an amended version of the Wik and Wik Way independent parcels s 87A agreement correcting that typographical error. The Court’s orders today reflect that correction.

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

27    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.

28    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

29    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.

30    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 Wik and Wik Way independent parcels 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.

31    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)

32    There is one current indigenous land use agreement (ILUA) in place in relation to parts of the Wik and Wik Way independent parcels determination area. It is an area ILUA. 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 the ILUA, unless an order is made under s 199C(1A).

33    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.)

34    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 Aurukun Township and Access Road Agreement ILUA (QI2001/026) 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 ILUA, 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 ILUA do not reflect, on the face of the ILUA 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 ILUA, and this is a further basis on which it contends the proposed s 199C(1A) order is appropriate.

35    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.

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

(a)    the Aurukun Township and Access Road Agreement ILUA covers the township of Aurukun; and

(b)    while the Aurukun Township and Access Road Agreement ILUA appears, on its face, to have been authorised by the Wik and Wik Way Peoples, given that the WWY 2000 determination and the proposed Wik and Wik Way identified parcels determination do not define the native title holders by reference to apical ancestors, the parties propose to also seek an order in respect of this ILUA out of an abundance of caution.

37    The State further submits that the requirement in s 199C(1A)(b) is met because it is the Wik and Wik Way native title group that seeks the order under s 199C(1A). It submits the requirement in s 199C(1A)(c) is met, because the Wik and Wik Way native title group passed resolutions at the Wik and Wik Way authorisation meeting on 6 September 2023, accepting the terms of the Aurukun Township and Access Road Agreement ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that the ILUA not be removed from the Register.

38    I accept the State’s submissions that the provisions in s 199C(1A) can apply to the area ILUA. 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.

39    Given the resolution passed by the Wik and Wik Way Peoples, 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

40    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 Ngan Aak-Kunch Aboriginal Corporation is nominated for the Wik and Wik Way independent parcels 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

41    For the Wik and Wik Way native title group, this determination represents an expansion of the recognition of that group’s native title to parcels surrounded by areas already determined in the WWY 2000 determination. It has taken some time to resolve these outstanding parcels, and the Wik and Wik Way Peoples have shown patience and persistence. The Court is pleased to deliver some further certainty to their native title claims today, and thanks all those who have worked towards this outcome.

Associate:

Dated:    2 November 2023

SCHEDULE OF PARTIES