FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 24) (Olkola determination) [2024] FCA 740

ORDERS

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

THE COURT NOTES THAT:

A.    The Applicant agrees that the areas listed in Part 1 of Schedule 5 are areas where native title has been wholly extinguished.

B.    Part 2 of Schedule 5 excludes that part of Lot 1 on WR2 that falls within the External Boundary (Lot 1) and Lot 4 on KA835480 that falls within the External Boundary (Lot 4) from this Determination on the basis that Lot 1 and Lot 4 are subject to tenures which may be affected by outcome of the separate question hearing heard in Bernard Richard Charlie & Ors on behalf of the North Eastern Peninsula Sea Claim Group and State of Queensland & Ors (QUD115/2017) (the NEP claim) relating to special leases granted pursuant to ss 203(a) and (b) of the Land Act 1962 (Qld).

C.    The parties intend to seek a determination on the papers for Lot 1 and Lot 4 following the delivery of judgment in the NEP claim, and the parties reaching agreement on how the outcome applies to Lot 1 and Lot 4.

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.    Olkola Land Transfer ILUA (QI2014/085);

b.    Thingalkal (Mary Valley) ILUA (QI2014/071);

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

d.    Kalinga Mulkay ILUA (QI2010/036).

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 Determination Area map, the written description prevails.

6.    Native title exists in the Determination Area.

7.    The native title is held by the Olkola 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 Ut-Alkar Aboriginal Corporation (ICN: 10231), 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    x

Schedule 3 – External Boundary    xv

Schedule 4 – Description of Determination Area    xix

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

Schedule 6 – Determination Area Map    xxvi

Schedule 1 – Native Title Holders

1.    The Native Title Holders are the Olkola People. The Olkola 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 Olkola People, from one or more of the following apical ancestors:

(a)    Willie Johnson (aka Jack Johnson);

(b)    Parry (father of Linda Long and grandfather of Albert Upton);

(c)    Charlie (spouse of Topsy/Bessie);

(d)    Old Man Barney Dockerty;

(e)    Mosquito Upton;

(f)    Long Jim Coleman;

(g)    Johnson Upton;

(h)    Charlie Gunnawarra;

(i)    Jimmy Long (aka Brasso/Basil);

(j)    Polly (spouse of Mustard);

(k)    Mustard;

(l)    Nellie Musgrave;

(m)    Bally (father of Lucy Long);

(n)    Old Man Bally (Oto aka Possum Bally);

(o)    Bally Upton;

(p)    Ngoingum;

(q)    Therese Upton aka Awundayi;

(r)    Old Man Boxer;

(s)    Mary Callaghan (spouse of Jack McIvor);

(t)    Jack Spratt;

(u)    Old Man Saturday (aka Jimmy Thompson);

(v)    Frank Yam;

(w)    Charlie Sugarbag and Charlie Crocodile (siblings);

(x)    Willie Long aka Willie Bandfoot/Bamford (spouse of Jinny Long);

(y)    Sandy (spouse of Nellie/Lily);

(z)    Georgina Lee Cheu Snr;

(aa)    Paddy Cook;

(bb)    George Dockerty (spouse of Rosie);

(cc)    Rosie (spouse of George Dockerty);

(dd)    Charlie (father of Linda Bob);

(ee)    Nellie (mother of Linda Bob); or

(ff)    Old Lady Molly Long (aka Molly Barney).

Schedule 2 – Other Interests in the Determination Area

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

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

(a)    Olkola Land Transfer ILUA (QI2014/085);

(b)    PNG Gas Pipeline ILUA (QI2006/043);

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

(d)    Thingalkal (Mary Valley) ILUA (QI2014/071); and

(e)    Kalinga Mulkay ILUA (QI2010/036).

2.    The rights and interests of Olkola Aboriginal Corporation:

(a)    as trustee in fee simple of Lot 20 on SP241432, Lot 21 on SP241432, Lot 7 on SP241432, Lot 16 on SP262570, Lot 6 on SP262570, Lot 10 on SP261207, and Lot 36 on SP215745 pursuant to deeds of grant under the Aboriginal Land Act 1991 (Qld), to the extent those parcels fall within the External Boundary; and

(b)    under the Land Act 1994 (Qld) as the holder of rolling term lease (PH 34/3875) for pastoral purposes (also known as Glen Garland) over Lot 3875 on SP141968.

3.    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.

4.    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 on SP280073 that falls within the External Boundary.

5.    The rights and interests of Colin Innes and Margaret Anne Innes under the Land Act 1962 (Qld) as the holders of rolling term lease (0/241013) for grazing purposes over that part of Lot 46 on SP235313 excluding an area formerly described as Lot 1 on KG2 and that falls within the External Boundary.

6.    The rights and interests of Rodney Glen Raymond under the Land Act 1962 (Qld) as the holder of rolling term lease (0/241014) for grazing purposes over Lot 47 on SP235313 excluding an area formerly described as Lot 1 on KG2.

7.    The rights and interests of Thomas Donald Shephard and Susan Shephard under the Land Act 1962 (Qld) as the holders of rolling term lease (PH 14/4365) for pastoral purposes over that part of Lot 4365 on SP182310 that falls within the External Boundary.

8.    The rights and interests of the Corporation of the Kowanyama Aboriginal Community Council under the Land Act 1962 (Qld) as the holder of rolling term lease (PH 34/5545) for pastoral purposes over that part of Lot 12 on CTH804427 that falls within the External Boundary.

9.    The rights and interests of Cook Shire Council and Carpentaria Shire Council:

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

(b)    as the:

(i)    lessor(s) 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(s) 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(s) 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(s) and operator(s) 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 councils;

(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 councils;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 9(a), (b) and (c) above by their employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 9 and paragraph 10 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 9(c) above; and

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

10.    The rights and interests of the State of Queensland, Cook Shire Council and Carpentaria 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.

11.    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.

12.    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:

13.    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.

14.    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.

15.    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 eastern boundary of Lot 3384 on SP182311 and the centreline of Red Blanket Creek at Latitude 14.668541° South; then generally westerly along the centreline of Red Blanket Creek until the intersection with the 110m contour line; then generally southerly along that contour line until a point at Longitude 143.525512° East, Latitude 15.05757° South; then south easterly to another point on the 110m contour line at Longitude 143.626601° East, Latitude 15.140918° South, passing through the following coordinate points:

then generally southerly along that contour line until Longitude 143.621675° East, Latitude 15.232089° South; then south easterly until the intersection with the 190m contour line at Longitude 143.632479° East, Latitude 15.235537° South; then generally southerly and south easterly along that contour line until the intersection with the north western boundary of Lot 5218 on PH1103 (commonly known as Fairlight Station) at Longitude 143.825079° East; then south westerly along the boundary of that lot until a north western corner at approximate Longitude 143.815228° East; then south westerly until a point on the Great Dividing Range at Latitude 15.64833° South; then generally southerly along the Great Dividing Range until Latitude 15.729880° South, then westerly until the headwaters of a tributary of King River at Longitude 143.816676° East, Latitude 15.729642° South; then generally south westerly and westerly along the southern bank of that tributary and the southern bank of King River until Longitude 143.600917° East; then westerly until the headwaters of an unnamed tributary of Ten Mile Creek at Longitude 143.451733° East, Latitude 15.773102° South, passing through the following coordinate points:

then generally westerly along the southern bank of that tributary, Ten Mile Creek, and Maddigans Creek until the junction of Maddigans Creek and Lorraine Creek, then north westerly until the south eastern corner of Lot 473 on SP206203 (Harkness), also being a corner point of Kowanyama People Part B Native Title Determination (QCD2012/016); then clockwise following the boundaries of that determination and Native Title Determinations Strathgordon Mob (QCD2007/001), Wik and Wik Way Native Title Determination No. 3 (QCD2004/003), Wik and Wik Way Native Title Determination No. 4 (QCD2012/010), Ayapathu People (QCD2022/007) and Lama Lama People (QCD2022/008) until the point of commencement, also described as:

then northerly, westerly, and northerly along the eastern boundaries of Lot 473 on SP206203 (Harkness); until the intersection with the southern bank of the Coleman River, also being the northern boundary of that lot; then westerly along that river bank and lot boundary until Longitude 142.534155° East; then north westerly until a point on the northern bank of the Coleman River, also a southern boundary of Lot 10 on SP261207 (Olkola Aboriginal Corporation), at Longitude 142.532419° East; then generally westerly, northerly and easterly along the boundaries of that lot until the intersection with the north western corner of Lot 5 on KA835479 (Strathaven Station); then north easterly until a point on the western boundary of Lot 3874 on SP273462 (Astrea Station) at Latitude 14.671650° South; then northerly and south easterly along the boundaries of Astrea Station until Latitude 14.492031° South; then south westerly a short distance until the intersection with the headwaters of an unnamed tributary of Fish Creek in the vicinity of Camp Oven Lagoon at Longitude 143.023356° East, Latitude 14.492834° South; then generally southerly along the centreline of that tributary, generally south easterly along the centreline of Fish Creek and generally north easterly along the centreline of the Lukin River until Longitude 143.321382 East; then southerly, easterly, and northerly to again intersect the centreline of Lukin River at Longitude 143.336990° East, passing around Mount Ryan through the following coordinate points:

then easterly along the centrelines of the Lukin River, Duckholes Creek and an unnamed tributary of Duckholes Creek until the headwaters of that tributary at Longitude 143.433544° East, Latitude 14.403611° South; then south easterly to a point on the Great Dividing Range just north of Mount Walsh at Longitude 143.449180° East, Latitude 14.407860° South; then easterly until the intersection of an unnamed road (also known as the Old Telegraph Line) and Annie River at Latitude 14.414312° South (a place known as 25 Mile or Hot Water Story); then southerly along the centreline of that road to its intersection with the eastern boundary of Lot 3384 on SP182311 at Latitude 14.667379° South; then easterly and southerly along the eastern boundary of that lot until the point of commencement.

Data Reference and source

Cadastral data sourced from Department of Resources, Queensland (published 07/08/2023).

Watercourse Lines sourced from Department of Resources, Queensland (published 05/10/2022).

Mountain Ranges, Beaches and Sea Passages sourced from Department of Resources, Queensland (27/07/2023).

Local Government Areas sourced from Department of Resources, Queensland (published 23/11/2023).

Native Title Determinations and Representative Aboriginal and Torres Strait Islander Body boundaries sourced from the Commonwealth of Australia, National Native Title Tribunal (published 03/08/2023).

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 Determination Area map 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 Area map contained in Schedule 6:

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

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the Determination Area 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 that part of Lot 47 on SP235313 subject to an area formerly described as Lot 1 on KG2.

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

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

(a)    any area where there had been an unqualified grant of estate in fee simple which wholly extinguished native title rights and interests; and

(b)    any area over which there was an existing dedicated public road which wholly extinguished native title rights and interests.

Part 2 – Other excluded areas

1.    Those land and waters described as that part of Lot 1 on WR2 and Lot 4 on KA835480 that fall within the External Boundary.

Schedule 6 – Determination Area Map

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 Olkola People. This determination is being made on the same day as a determination recognising the native title of the Kunjen Olkol People, and the day before a determination recognising the native title of the Kowanyama People. Concurrently with these determinations, the Court also makes determinations recognising the jointly held native title of these groups over certain lands and waters, as well as a determination recognising the native title of the Southern Kaantju people over a parcel excluded from their previous determination, and a determination recognising the native title of the Kowanyama People over further independent parcels. Those determinations are being made on the papers.

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

3    Together, these determinations resolve parts of the Cape York United #1 claim, within geographic regions that have been described by the parties and in the Court’s case management timetables as the ‘Corrigan and Taylor 2 (Sefton Oriners) Timetable Area’, or simply the ‘Corrigan Report Area’, because those areas were the subject of reports by expert anthropologists Dr Brendan Corrigan and Dr John Taylor. This country is generally located in the central Cape York Peninsula area. As well as being neighbours, and sharing some country as some of the shared determinations being made in this round of determinations recognise, there are many kinship and traditional connections, including language and story connections, between the Olkola, Kunjen Olkol and Kowanyama Peoples.

4    The Olkola People’s traditional country lies to the north of the Kunjen Olkol People, and is agreed to encompass parts of the upper reaches of the Lukin and Coleman Rivers.

5    Like many other determinations in this proceeding, there are large areas in which exclusive native title is being recognised: for the Olkola People, approximately 812,216 hectares, being almost two-thirds of the determination area.

6    The Olkola People are a language-affiliated group comprised of many groups or family lines.

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

8    Mr Michael Ross, a senior Olkola man and the lead applicant in the entire Cape York United #1 claim proceeding, explains in his witness statement the importance of learning about, and being able to speak for, country:

The people who have the right to speak for country are from the families for the area and are the senior people with knowledge. I am one of the senior people that speaks for Kurrimbila country. But I am not the only one. Other family members also have a say depending on what the issue is, such as the Yam, Ross, Boxer, and Friday families. They all from our grandmother, Nanna Lily - from Brasso, that the line we come down. But you can’t speak for country just because you are from a family. You have to be introduced to country, taken into and learn about country. We have to sing out to the spirit to let them know who we are. You can’t just rock up and because you are a traditional owner you can do what you want. No we have protocols. I or other senior traditional owners have to take them there, warm them and put water on them. Tell the spirits that this one has been gone from country for a long time and he come back to learn and to visit and don’t hurt him. We sing to our spirit to let them know who they are.

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

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

THE MATERIAL BEFORE THE COURT

11    The applications for consent determinations were supported by two sets of submissions filed by the applicant on 3 June 2024: one in relation to seven of the determinations, and another relating to the Southern Kaantju #2 determination. The State also filed submissions on 7 June 2024. The Court has been greatly assisted by the parties’ submissions, and the material provided.

12    The applicant relied on a number of affidavits dealing with matters relevant to the determinations. First, an affidavit of Ms Kirstin Donlevy Malyon affirmed on 3 June 2024 (2024 Malyon affidavit). Second, an affidavit of Mr Parkinson Wirrick affirmed on 31 May 2024. Third, paragraphs [5] to [30] of an affidavit filed earlier in this proceeding by Ms Malyon on 27 October 2021 regarding the re-authorisation process undertaken by the applicant in the period from April to September 2021 (2021 Malyon affidavit). The State relied on an affidavit of Ms Carrie Tobler affirmed on 5 June 2024.

13    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 2024 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 Olkola People’s s 87A agreement was approved, including pre-authorisation and authorisation meetings.

14    Ms Malyon deposes to how the Ut-Alkar Aboriginal Corporation (ICN 10231) was nominated as the prescribed body corporate (PBC) for the Olkola People determination. She annexes to her affidavit the consent to the nomination of the Ut-Alkar Aboriginal Corporation (ICN 10231) to act as the PBC for the determination area. This PBC nomination was the subject of a challenge, which I discuss later in these reasons.

15    In relation to the Olkola People determination, the applicant relies on the following material to demonstrate there is a credible basis for connection, and to establish what material had been available to the State for the purposes of the s 87A agreement:

(a)    expert report by Dr Corrigan dated 30 October 2017 and filed 31 October 2017;

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

(c)    expert report by Dr Anthony Redmond dated 26 April 2023 and filed 31 May 2024;

(d)    supplementary expert report by Ms Waters dated 26 April 2023 and filed 31 May 2024;

(e)    supplementary expert report by Ms Waters dated 23 October 2023 and filed 31 May 2024;

(f)    statement of Mr Mike Ross dated 10 June 2020 and filed 31 May 2024;

(g)    apical report of Ms Waters dated 23 October 2023 regarding Jimmy Long (aka Brasso/Basil) filed 31 May 2024;

(h)    apical report of Ms Waters dated 23 October 2023 regarding Old Lady Molly Long (aka Molly Barney) filed 31 May 2024;

(i)    apical report of Ms Waters dated 23 October 2023 regarding Parry (father of Linda Long) filed on 31 May 2024;

(j)    apical report of Ms Waters dated 23 October 2023 regarding Willie Long (aka Bamford) filed 31 May 2024;

(k)    apical report of Ms Waters dated 24 October 2023 regarding Charlie (father of Linda Bob) filed 31 May 2024;

(l)    apical report of Ms Waters dated 24 October 2023 regarding Nellie (mother of Linda Bob) filed 31 May 2024;

(m)    apical report of Ms Waters dated 24 October 2023 regarding Paddy Cook filed 31 May 2024;

(n)    apical report of Ms Waters dated 10 November 2023 regarding Charlie (spouse of Topsy/Bessie) filed 31 May 2024;

(o)    apical report of Ms Waters dated 9 November 2023 regarding Charlie Sugarbag and Charlie Crocodile (siblings) and Mo Billy filed 31 May 2024;

(p)    apical report of Ms Waters date 9 November 2023 regarding Georgina Lee Cheu Snr filed 31 May 2024;

(q)    apical report of Ms Waters dated 12 November 2023 regarding Dick Callaghan, Topsy Callaghan and Mary Callaghan (spouse of Jack McIvor) filed 31 May 2024;

(r)    apical report of Ms Waters dated 10 November 2023 regarding Frank Yam filed 31 May 2024.

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

PROCEDURAL HISTORY

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

18    The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made in November 2021: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [3], [12]-[19], [30]-[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]-[20], [28]-[35]. In addition to those determinations, there have been 16 further consent determinations made in this proceeding prior to this round of determinations, the most recent of which being the four determinations made in November 2023. The Court’s reasons in each of those determinations also note the complex and individualised process leading to each determination within the overall Cape York United #1 claim.

AUTHORISATION

The Olkola People section 87A agreement

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

20    The Boundary Identification Negotiation and Mediation or ‘BINM’ process was adopted by the applicant, through the CYLC, in April 2020 to deal with the reality existing within the Cape York United #1 claim area that distinctly identifiable groups hold interests in that area: see Kuuku Ya’u determination at [18], [25]-[26] and Uutaalnganu determination at [19], [23]-[24]. The BINM process was employed for the Olkola, Kowanyama People and Kunjen Olkol native title groups’ claims. This is what Ms Malyon describes in the 2024 Malyon affidavit at [57]-[74].

21    Putative boundary descriptions for the Olkola, Kowanyama People and Kunjen Olkol native title groups were developed from desktop research by the CYLC and Dr Redmond. They were provided to the State on 12 May 2023 on a ‘without prejudice’ basis. The boundary descriptions were prepared in consultation with anthropologists engaged by CYLC in relation to neighbouring areas.

22    Fieldwork and desktop research about boundaries was carried out between 2020 and 2022, noting that much of this had to occur under challenging conditions imposed by the COVID-19 pandemic and consequent restrictions. Following the provision of the putative boundary descriptions to the State in May 2023, the CYLC facilitated consultations with the Olkola, Kowanyama People and Kunjen Olkol native title groups. This commenced in July 2023 after approximately three years of consultation, research and reporting by Dr Redmond, following on from work done by Dr Corrigan. However, in his report, Dr Redmond states that his report is based on anthropological research in this area conducted since 2012.

23    For the Olkola, Kowanyama People and Kunjen Olkol native title groups, this consultation involved engaging Dr Redmond for a total of 11 days from July to December 2022 to consult with relevant families, elders and other key persons in the Cape York Region. It also involved engaging Mr Ray Wood, Dr Kevin Mayo, Dr Natalie Kwok and Mr Mark Winters as consultant anthropologists for neighbouring groups to discuss common boundaries, including those between the Thaypan, Possum and Western Yalanji native title groups, and the Lama Lama and Ayapathu native title groups.

24    The consultations helped identify who should attend meetings on behalf of the groups and their neighbours, and helped ensure that those people could attend those meetings. The consultations also helped inform the proposed descriptions for the groups.

25    The CYLC held ‘preliminary meetings’ between May 2023 and October 2023 with each of the Olkola, Kowanyama People and Kunjen Olkol native title groups to discuss boundaries, provide further information about the BINM process, and to receive instructions. The first tranche of the preliminary meetings were open to all members of the respective native title groups. The second tranche of the preliminary meetings were open to those representatives specifically nominated by their respective native title groups at the first tranche of meetings. Copies of the applicable notices were sent to all members of each of the native title groups on the CYLC contact database by post and email (where email addresses were available), and were notified on the CYLC website, CYLC Facebook page and community noticeboards.

26    The CYLC facilitated a number of ‘boundary meetings’ between neighbouring native title groups where instructions were taken as to final descriptions of common boundaries. These took place between April 2021 and October 2023. A CYLC lawyer and anthropologist were present at each boundary meeting. Each of the relevant consultant anthropologists were present for most meetings.

27    At the introductory session for the boundary meetings, each consultant anthropologist provided an overview of the available anthropological materials. The anthropologists supported and facilitated the participation of appropriate group representatives, providing advice and feedback to them about previous anthropological research, communicating their understanding of the research materials, assisting in the translation of maps (including the identification of any particular locations, landmarks or cultural sites), and helping to identify family affiliations to particular areas of country through recollection of genealogical data. Group representatives also had access to the CYLC’s genealogical records (subject to confidentiality), private break-out spaces, a series of maps and the State’s response to the putative boundary descriptions. At the end of the meetings, agreement as to boundaries by consensus was sought, and if there was agreement, it was recorded in written resolutions.

28    The Olkola, Kowanyama People and Kunjen Olkol native title groups met with their neighbours over a period of around two and a half years:

(a)    Ayapathu, Lama Lama, Kuku Thaypan and Olkola native title groups: 20–21 April 2021;

(b)    Thaypan, Possum, Kuku Warra, Olkola and Western Yalanji native title groups: 16 November 2022;

(c)    Olkola and Kunjen Olkol native title groups: 10 October 2023;

(d)    Kunjen Olkol and Kowanyama People native title groups: 11 October 2023; and

(e)    Kunjen Olkol and Western Yalanji native title groups: 12 October 2023.

29    Members of the Olkola native title group attended these meetings, and agreement was reached as to boundaries.

30    Group descriptions for the Olkola, Kowanyama People and Kunjen Olkol native title groups were considered at various meetings during the fieldwork phase. In conjunction with the BINM process, the applicant provided to the State a number of reports relating to apical ancestors identified through the BINM who were to be included or excluded from the proposed group descriptions. This included 12 ancestor reports relating to the Olkola People. These reports are referred to at [15] above.

31    The s 87A agreements were settled and authorised after the BINM process, and the group description process, were complete. The Olkola People authorisation meeting was conducted on 29 February 2024. At that meeting, the group considered the terms of the Olkola s 87A agreement, and voted to direct the applicant to enter into that agreement.

32    What occurred at the Olkola authorisation meeting, and in the preparation leading to it, was the subject of two interlocutory applications filed in this proceeding on 8 April 2024, one by Olkola woman Ms Deborah Symonds, and one by the Olkola Aboriginal Corporation (OAC). Mr Ross is the director and chairperson of OAC and provided the principal affidavit in support of OAC’s application. In summary, those interlocutory applications challenged the decision made at the Olkola authorisation meeting to nominate the Ut-Alkar Aboriginal Corporation to be the PBC for the proposed Olkola determination, instead of OAC, and sought to deal with the consequences of OAC not being nominated as the PBC.

33    By orders and reasons delivered on 21 May 2024, the Court dismissed the interlocutory application by Ms Symonds challenging the decision at the Olkola authorisation meeting.

34    However, after the hearing of the interlocutory application by OAC, the active parties agreed on orders joining OAC as a respondent to these proceedings for the limited purpose of seeking to include an ‘Other Interests’ clause in the relevant determinations which would recognise the considerable interests held by OAC in the Olkola determination area. Mr Ross had set those interests out in his affidavit.

35    The Court’s orders and reasons can be found at Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 23) [2024] FCA 533.

36    The applications by Ms Symonds and Mr Ross were clearly seriously considered, capably prepared and capably argued. The applicant and the State eventually recognised the force of the joinder application by agreeing to it. While the Court did not uphold the challenge to the decisions made at the Olkola authorisation meeting about the nomination of Ut-Alkar Aboriginal Corporation as the Olkola PBC, the Court did make some observations which pointed out some of the difficulties that arise where there is a genuine and serious debate within a native title holding group about matters such as the nomination of a PBC: see [95]-[102] of the Court’s reasons.

37    As I explained in the Kuuku Ya’u determination, finality is an important value in the Australian legal system, and that is especially so where property rights are concerned, because they are enforceable against the world. Native title rights are a particular kind of property rights. While seriously considered and arguable challenges such as those brought by Ms Symonds can certainly be made, if the challenges do not succeed, then the consequence is that the Court has upheld the validity of the process undertaken, and it is appropriate for that decision to be respected. It may not be easy for people to move on from such decisions by the Court, but it is important to try, so that the native title holding community can work together to make the most of the rights that are being recognised in this determination.

The authorisation of the Cape York United #1 applicant

38    The applicant’s authority to enter into the Olkola People s 87A agreement stems from the re-authorisation process undertaken between April and September 2021, in respect of the claim as a whole. Ms Malyon describes this process in the 2021 Malyon affidavit, and the Court described and endorsed it in Kuuku Ya’u determination at [30]-[37] and Uutaalnganu determination at [28]-[35]. In those determinations, I agreed with the State’s submission that the weight of authority supports the view that the Native Title Act affords flexibility to shape the content of an ultimate determination of native title, provided there is compliance with s 94A and s 225 of the Act. For that reason, I agreed with the State’s submission that the re-authorisation process for the applicant was lawful, and compliant with the Native Title Act. The applicant’s submissions also supported this approach, unsurprisingly. No objections were made by any other parties to the determinations.

39    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.

40    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.

41    Similar orders are sought in each of the eight determinations being made in July 2024. The State agrees with this proposal. I adopt the above reasons in each of the eight determinations now made. For the reasons given in the extract above, I continue to consider such orders are appropriate.

THE CONNECTION OF THE OLKOLA NATIVE TITLE GROUP TO THE DETERMINATION AREA

42    Both Dr Corrigan and Dr Redmond presented a detailed analysis of the connection of the Olkola People, and other groups they were briefed to report on, to country in this Central West Cape York region. Their reports were informed by detailed consideration of historical, anthropological and archival records, as well as field research and interviews with members of the various native title holding groups over a long period of time.

43    As well as the material in each of these reports that comes directly from Olkola People, some of whom have passed away, the applicant also relied on a witness statement and annexures provided by Mr Ross, which contains a wealth of material, some of which I describe and extract below.

44    The applicant submits that, together, the connection material establishes a credible basis for the proposition that the Olkola, Kowanyama People and Kunjen Olkol 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 in making each of the determinations in favour of these groups, I have accepted those submissions.

45    Opinion evidence supporting the Olkola, Kowanyama People and Kunjen Olkol group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Ms Waters. Ms Waters’ work concentrates on the correct identification of apical ancestors, and is, like her other work for other determinations in this proceeding, meticulous. The State accepts this material, and there is no objection from the other parties to the present determinations.

46    The material from Olkola People themselves, whether recorded in anthropological reports or provided separately as Mr Ross’ witness statement was, described the lived experiences that ultimately provide the foundation for this determination. As I noted in the 2021 determinations, it is the group members who “live and understand their law and custom, and how it connects them to their country”: Kuuku Ya’u determination at [68]; Uutaalnganu determination at [59]. It is they who understand their family and kinship connections, who are the right elders to speak for various parts of their country, and who can explain the stories that go with certain parts of country.

47    In his witness statement, which repays careful reading, Mr Ross explains how he takes his mother’s line, and that she was named Kurrimbila (which means Grasshopper in Olkola) after the Kurrimbila story. He describes her as “a very senior Kurrimbila woman”, who passed away in 2014, and was between 96 and 98 years old. Mr Ross poignantly relates the stories of his mother’s forced removal from her family, of the 12 children she bore and of some of the traditional birth practices she engaged in.

48    Mr Ross explains that he has worked and travelled in many areas of Cape York, both as a ringer when he was younger and in his role as chairperson of the CYLC from 2005-2010. As he says, “[t]he best way to be on country was to get a job on country”, and this is how he learnt “a lot about country and the old people’s laws. The old people would tell me yarns”. While he has knowledge of a lot of country, including Yalanji country through some family connections, he explains he does not speak for that country, as he has not learnt from the old people. Mr Ross speaks for Kurrimbila country, as one of the senior people with knowledge.

49    In his statement, Mr Ross describes in detail the nature and extent of the rights in country. He explains how the right to speak for and make decisions about country operates (at [136]):

Our law says that the mob from the land speaks for that land. For example, for Oriners Station [T7], you have to talk to the Yam, Boxer, and Ross families. You talk to the oldest one in the family. If there is an issue, the mobs or families will send their people to make the decisions. We call a meeting and the families talk. If the decision is big decision, like a mine, then we need a big mob. That is what I have been told by the old fellas, like old Jerry Coleman.

50    Mr Ross explains how Sorry Business goes on his country (at [149]-[150]):

When one of the close family pass away you grow your beard. We have been told that from day one. You keep the beard until the family put a date on it. It could be a year. It’s called Sorry Business. All the deceased person’s gear is put it away until the day the family say. The person’s traditional country is also closed. People should not go to that country. If they do, they can get sick. Then on a day the family have a ceremony. That is the day you cut your beard and the family are invited to come in to take something as a memory of the person, like a pen or a knife. The rest of it, whatever is not gone, if the family don’t want it then you burn it. That day is also the day that the family will also say to open up the person’s traditional country again.

During the time the country is shut down, no traditional owner will access that country. While the country is shut down, the name of the deceased is not used. When the country is reopened, the belongings of the deceased are warmed up, smoked and their name can once again be used.

51    Mr Ross sets out the nature of some of the rights to access and use country (at [157], [159] and [181]):

In my country I can take what I want but I must still respect what I take and don’t take too much; that is the law. If you don’t follow the law, the spirit - our ancestors - and the country, the country get wild and you can get sick or your family can get sick.

…

If a person has connection through his mother or his father that doesn’t mean that he can go anywhere in that country because you still have to ask permission of the families for that area. It doesn’t matter how much connection you have. If I want to go flat rock fishing, I ask the families from the area. That is the law.

…

The big grasshopper Kurrimbila country is lancewood country which make the best shaft or handle for a spear. The lancewood is a very important tree to us and it is used for spear handles and woomera. When we take a tree, we have to talk language to it and ask permission to cut. You have to ask permission to cut it, you can’t just go and cut it down. You have to ask the land by singing out to the spirits that you are going to take handle for spear. You can get sick in that country if you don’t ask the land. We can only take one, only what we need. We can’t knock those trees down, and neither can anyone else. We don’t go hunting in that lancewood area in Olkola National Park as that place needs to be left alone. That is my grandmother’s Story there; I still sing out and ask for a handle before I take one.

52    It is clear from his statement that Mr Ross profoundly feels the duty to protect Olkola country, and to pass on knowledge of country to the younger generation. As he explains (at [187]-[189]):

I have walked all over my country and the neighbouring country. I have hunted and fished and learned the old ways and the Stories from the old people. The Stories are very important to us.

…

The Stories taught to us speak about how the land was created and why we have birds and animals. I know the Stories like, for example, where the Brolga and Emu fought, how the Kingfisher got his colour, and the Rainbow Serpent Story. I tell those Stories to younger generations when I take them out on country so that they can tell their kids. Olkola country is still very alive and powerful with those old Stories.

I go out there and look at country to check on things. Country has a strong way of drawing you back. It is like it is calling you home. I have a passion for my country; I can’t get enough of it. I take my boys and show them this place and that place. The more time I am out on my country, the happier I am. It is my job to teach them in a way that they understand and respect and so they develop the same passion for Olkola country as I have. Your heart is there and it becomes part of your body and spirit. That is the true traditional owner.

PROPER PARTIES TO THE PROCEEDING

53    It is necessary to address this issue first because of a submission made in this proceeding by the State of Queensland, and second because of uncertainty generated nationally by the decision in Arnaboldi v State of Queensland [2023] FCA 788. It is desirable for me to express my own opinion on this issue.

54    At a case management hearing before me on 1 March 2024 in this proceeding, the applicant and State proposed the following order, amongst others:

11.    Everything done in the name of the State of Queensland in this proceeding from and including 3 February 2015 (the date on which the State of Queensland filed a Notice of Address for Service) to the date of this order, including filing and otherwise sending of documents in the name of the State of Queensland, is deemed to have been done by the State Minister for the State of Queensland under the Native Title Act 1993 (Cth) on the date they were done.

12.    Leave be granted for the State of Queensland to cease to be a party to this proceeding pursuant to s 84(7) of the Native Title Act 1993 (Cth).

55    I infer, based on oral submissions on behalf of the State of Queensland, that these proposed orders were sought following the decision in Arnaboldi. The proposed orders extracted at [54] were not made by the Court on the basis that, at that stage, I was not persuaded that there was something irregular or inappropriate in the State of Queensland being a respondent in this proceeding.

56    The decision in Arnaboldi was handed down on 14 July 2023. Since then, approximately 19 consent determinations of native title have been made by the Federal Court, including four determinations of native title by consent in this proceeding. In each of these determinations, the Court was satisfied that it was appropriate to make a determination pursuant to ss 87 or 87A of the Native Title Act. Only one of those consent determinations has canvassed Arnaboldi. So far as I have been able to ascertain, no other State party in native title proceedings has sought orders in the nature of those sought by the State of Queensland in respect of a determination under ss 87 or 87A of the Native Title Act.

57    In a recent determination by consent in the Northern Territory pursuant to s 87 of the Native Title Act, Halley J considered the reasons in Arnaboldi: see Madrill on behalf of the members of the Amapete, Apwetyerlaneme, Atnweale and Warrtharre Landholding Groups v Northern Territory of Australia [2024] FCA 529. From [32]-[36] of Madrill, his Honour said:

The parties drew to the Court’s attention an apparent divergence of authority regarding the identification of the parties to a native title determination given the recent decision of this Court in Arnaboldi v State of Queensland [2023] FCA 788 (SC Derrington J). In Arnaboldi, the Court was asked to resolve a non-claimant native title determination application under s 86G of the Act. The parties submit that the decision of this Court in Arnaboldi ought not to be followed.

Section 86 enables the resolution of unopposed applications without a hearing, if each respondent party notifies the Court in writing that the proposed orders are not opposed. Justice SC Derrington considered that the language of s 84(4) required the State Minister to be a party, rather than the State qua State. Her Honour concluded that given the relevant State Minister was not also a party, the State Minister had not consented in writing pursuant to s 86G(2) of the Act and the Court was not able to conclude the application was “unopposed”.

It is reasonably arguable that the reasoning in Arnaboldi could also apply to s 87(1)(aa) of the Act, which requires that all parties to the proceeding are parties to the agreement as to the terms of a proposed order. As acknowledged by SC Derrington J in Arnaboldi at [10], however, any requirement that the State Minister, rather than the State, is a necessary party to a consent determination is inconsistent with “numerous” existing authorities. Any departure from those authorities would have profound consequences for the validity of previous consent determinations of native title.

For present purposes, it is not necessary to reach any concluded view on this issue. The Territory Minister in this case specifically endorsed the solicitor for the Northern Territory as the legal representative of the Respondent to consent to the Agreement. There was no evidence of any such endorsement or involvement of the relevant Minister in Arnaboldi. Moreover, the principles governing consent determinations pursuant to s 87 of the Act were considered in the decision of the Full Court in McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191 at [27]-[32] (Perry, SC Derrington and Colvin JJ). The consent determination in Jangga was founded on the consent of the State of Queensland, not the State Minister. For present purposes, it is significant that although Jangga was determined after Arnaboldi, neither party in Jangga appears to have raised any concern about the Court’s power to make the consent determination in the absence of any consent from the State Minister and the Full Court made no reference to Arnaboldi in their reasons for judgment or expressed any concern that the State Minister was not a party to the agreement giving rise to the consent determination.

Further as submitted by the Applicant and Respondent, I am satisfied that the progress of this matter including the steps taken by the respondent in the proceeding, are sufficient to constitute implied notice to the Court that it is the intention of the Northern Territory and the Territory Minister that the Territory qua Territory seeks to be a respondent to these proceedings and to carry out the Northern Territory’s role in the capacity of parens patriae.

58    I respectfully agree with the observations of Halley J.

59    However, in these reasons, I consider it is appropriate to express a more concluded view, to attempt to place the role of s 84 of the Native Title Act in what I consider to be its correct context, thus avoiding the potentially highly disruptive consequences for the Court’s native title jurisprudence, and determinations, that may result from an overly narrow reading of s 84 and like provisions, and from the obiter statements in Arnaboldi.

60    Section 84 of the Native Title Act relevantly provides:

Coverage of section

(1)    This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

(2)    The applicant is a party to the proceedings.

…

State or Territory Ministers

(4)    If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.

…

61    In my opinion, the correct meaning of s 84(1) is that the section is engaged where there is an application under s 61. In other words, s 84 is directed at parties other than a s 61 applicant.

62    The definitional provision in s 253 relevantly provides:

State Minister, in relation to a State, means:

(a)    if there is no nomination under paragraph (b)—the Premier of the State; or

(b)    a Minister of the Crown of the State nominated in writing given to the Commonwealth Minister by the Premier for the purposes of this definition.

63    And:

Territory Minister, in relation to a Territory, means:

(a)    if there is no nomination under paragraph (b)—the Chief Minister of the Territory; or

(b)    a Minister of the Territory nominated in writing given to the Commonwealth Minister by the Chief Minister for the purposes of this definition.

64    And:

Commonwealth Minister means the Minister applicable, in relation to the provision in which the expression is used, under section 19 of the Acts Interpretation Act 1901.

65    There is no doubt that in each claim for a determination of native title, and in each claim for compensation for any loss, diminution, impairment or other effect of an act on native title rights and interests, government parties are necessary and appropriate parties. That is because of their own landholdings and proprietary interests across Australian land and waters, and also because of their representative role in respect of the communities they govern, communities which include First Nations Peoples, but include all people residing in each State and Territory, many of whom might also hold proprietary interests in land and waters, but many who will not and yet comprise the communities with a public interest in the recognition or non-recognition of native title according to law. In Farrer v Western Australia [2019] FCA 655; 369 ALR 324 at [42], I said:

Thus, the State’s responsibility is to satisfy itself there is a sufficient basis for concluding that the proposed determination is capable of meeting the requirements of s 225 of the Native Title Act. The way in which the State satisfies itself of that matter may vary considerably from case to case. No minimum requirements of proof can or should be set out. If the State embarks on such a course, and ultimately accepts it is appropriate to recognise the existence of native title in the determination area, then the Court is entitled to proceed on the basis the State has made a reasonable and rational assessment of the material to which it has been given access.

66    In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J stated, in relation to the role of the State in the context of the requirements of s 87 of the Native Title Act, at [36] to [37]:

The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.

67    The joint submissions of the applicant and the Northern Territory in Madrill are on the Court record. The matter has been finalised and therefore, generally, submissions then become publicly available. Accordingly, I see no difficulty in referring to them. Relevantly, the parties made the following submission:

The special role, and indeed obligation, of the State or Territory in carefully scrutinising claims for native title is recognised by the Act. It does not advance the objects of the Act to treat the consent of the Territory qua Territory as somehow less effective to convey the Territory’s approval of the proposed determination than the consent of a Territory Minister who has had no independent role in the proceedings.

(Footnotes omitted.)

68    See also Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [207]-[208]. These observations have force in the context of the proper construction and operation of s 84(4), and like provisions in the Native Title Act.

69    In its provisions, the legislative scheme of the Native Title Act recognises the various roles of government, generally of the polity itself: see ss 24BD(2), 24CD(5), 24DE(3) and see generally Part 2, Division 3, Subdivision P.

70    An examination of the legislative scheme of the Native Title Act confirms that it cannot have been Parliament’s intention in s 84(4), nor other similar provisions, to constrain or restrict the States and the Territories, nor indeed the Commonwealth itself (by references to “Commonwealth Minister”), in how they choose to be represented and participate as a necessary party in Native Title Act proceedings.

71    In neither s 3 (objects of the Native Title Act) nor in s 4 (overview of the Native Title Act) does the scheme indicate any express or implied intention to restrict or constrain the way that a government party can choose to be represented in a native title claim, whether as an applicant (in a non-claimant application) or as a respondent. Nor is any express or implied intention discernible in the Preamble. Rather, the government entities referred to in the Preamble are referred to in the following way:

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a)    claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b)    proposals for the use of such land for economic purposes.

72    Section 5 provides:

This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. However, nothing in this Act renders the Crown liable to be prosecuted for an offence.

73    This is a standard provision, but it would, in the context of this legislative scheme, be unusual for the Parliament to intend to constrain governments so that they were unable to conduct litigation on behalf of their communities and their government proprietary interests in the name of the Crown in right of a State or Territory, especially where it would appear that the Commonwealth is able to do so, and would not be – even on the narrowest reading of s 84 – restricted to the joinder of a “Minister” as a party.

74    Likewise, there are many critical provisions in the Native Title Act which operate on the legislative power of Commonwealth, States and Territories. For example, s 11:

11    Extinguishment of native title

(1)    Native title is not able to be extinguished contrary to this Act.

Effect of subsection (1)

(2)    An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

(a)    in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

(b)    by validating past acts, or intermediate period acts, in relation to the native title.

75    Section 11 was central to the arguments in Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373 (eg at 453). There is no suggestion in the text, context or purpose of the legislative scheme that where proceedings might engage issues such as those arising under s 11, a State or Territory would need to apply separately to join a proceeding to protect its interests, or be required to accept it must act in a proceeding only through a “Minister”. A similar point could be made about s 13A and Division 2 of Part 2.

76    Also provisions such as s 20(3), which provides, in relation to compensation:

Recovery of compensation

(3)    The native title holders may recover the compensation from the State or Territory.

77    I do not intend exhaustively to canvass all provisions of the Native Title Act to make what I consider is a clear point about legislative intention. However, provisions such as s 20(3) illustrate acutely the need for a construction of s 84, and like provisions, which is neither narrow nor unduly prescriptive. The legislative scheme provides for the right to compensation to be against, relevantly a State or Territory. For the Commonwealth, see s 17(4) of the Native Title Act.

78    It would be inimical to the legislative scheme, and the clear intention of provisions such as this, if s 84(4) and like provisions were to be construed as constraining a State or Territory to representation by a “Minister”. Indeed, the intended effect of provisions such as s 20(3) is diluted, and perhaps neutered. And I see no basis in the text, context or purpose of the Native Title Act as a whole, or the party provisions of it, to read the Native Title Act as requiring the joinder – in compensation applications – of both a “Minister” and the relevant State or Territory.

79    Further, where the myriad of functions and obligations imposed on the States and Territories under the Native Title Act might need to be enforced, or procedural steps might be required, it is clearer and more helpful to the important principles of certainty and finality if orders are made against a State or Territory itself, rather than a Minister.

80    It is correct that there are other key provisions in the Native Title Act which refer to steps being taken by, or conduct being directed at, Ministers. Consideration of those key provisions together with s 84(4) reveals the intention of the legislative scheme sufficiently clearly.

81    Section 61, an important provision which sets out how applications under the Native Title Act are to be made to this Court, and who is able to make them, refers relevantly to persons who may make an application as the “Commonwealth Minister” or the “State Minister or the Territory Minister”. It concerns who may be an applicant, whereas subss 84(3), (4) and (5) generally concern who may be a respondent party: see the text of s 84(2) which is extracted above at [60].

82    I note that if the reasoning in Arnaboldi is correct, it must also apply to the Commonwealth. That is, the Commonwealth as a polity is unable to be an applicant in a native title proceeding, and only “the Commonwealth Minister” as defined in s 253 may be an applicant. That proposition is no more persuasive in relation to the Commonwealth than it is in relation to the States and Territories.

83    Read with the definitions of the terms, which I have set out at [62]-[64] above, provisions such as s 61 and s 84(4) operate as default provisions. That is, they are designed to ensure that there is, by operation of law, a representative of the relevant State or Territory, or the Commonwealth, who is, without more needing to be done, able to participate as either the moving party in a native title proceeding (s 61) where a claim affects the interests of the Commonwealth, State or Territory, or as a responding party (s 84(4)). Section 84 should not be construed as defining the field of operation where there is an application under s 61.

84    Treating these provisions as default provisions also ensures that the Commonwealth, States and Territories must take responsibility for their roles under the Native Title Act, because the scheme recognises they are necessary parties. That the vehicle chosen for this default operation is a member of the executive in each government entity reflects, in my opinion, Parliament’s intention not to overreach and join each of the three polities by operation of law, but to afford some choice to those polities to be represented by default by a Minister as merely one member of the executive branch, or to choose or accept joinder, or applicant status, as the whole polity should that be considered appropriate.

85    If an applicant names, and serves, a State or Territory, or the Commonwealth, as a respondent party, then in the context of this legislative scheme there can be no doubt whatsoever that those entities are appropriate, and lawful, parties. The powers of the State, Territory and Commonwealth are wider and more ample than powers assigned administratively to any individual Minister. They enable a “whole of government” approach, with consultation and coordination within government as the Commonwealth, State or Territory sees fit. In making these observations, I refrain from entering the debate about the accuracy and appropriateness of continuing to employ concepts such as the Crown in right of a State or the Commonwealth (as to which see generally: Cheryl Saunders, ‘The Concept of the Crown’ (2015) 38(3) Melbourne University Law Review 873 and Sue v Hill [1999] HCA 30; 199 CLR 462), although I note s 5 of the Native Title Act does use this language.

86    Likewise, in my opinion, if a State, or Territory (or the Commonwealth) brings a proceeding as a moving party, while the default position by operation of law in s 61 is that a Minister may do so, the polity itself – being the whole of government – is also able to be a moving party, if it so chooses. Alternatively, a polity may choose as a moving party to adhere to the terms of s 61 and to name a responsible Minister only. In either case, the purpose of s 61 is achieved because a State or Territory (or the Commonwealth) with proprietary and other interests sufficient to justify the bringing of an application (eg a non-claimant application for a determination that no native title exists in a particular area) has in substance brought the claim.

87    In my opinion, these are significant and central political and legal choices for the polity concerned – whether it be the Commonwealth, a State or Territory. In a given proceeding, the polity may be content to adopt the default position and operate through a Minister. Or the polity may choose a “whole of government” approach and see it as appropriate that the polity itself be a party.

88    To read these provisions, in their literal references to Ministers, as not permitting that choice may well be to infringe upon, curtail or interfere with the exercise of State constitutional power or capacity, and expose these provisions to an argument they are unconstitutional: see generally Clarke v Federal Commissioner of Taxation [2009] HCA 33; 240 CLR 272 at [32] (French CJ) and [66] (Gummow, Heydon, Kiefel and Bell JJ); Austin v Commonwealth [2003] HCA 3; 215 CLR 185; Melbourne Corporation v Commonwealth [1947] HCA 26; 74 CLR 31.

89    Other provisions which identify a Minister include s 66 (notification) and ss 87 and 87A (consent determinations). The use of the language of “Minister” in s 66 services the same purpose as s 61, in my opinion. The obligation imposed on the Registrar to give copies of an application and other documents under s 63 to a State Minister or a Territory Minister (s 66(2)) and to the Commonwealth Minister (s 66(3)(a)(v)) should be construed as a default provision. Their purpose is to ensure that a responsible official within the executive of each affected polity is notified of a claim. If the State, Territory and/or Commonwealth has already been named as a party to a proceeding as a respondent(s), or has brought a proceeding as an applicant, then it would introduce confusion and uncertainty to the operation of the legislative scheme if the Registrar had to notify both the legal representatives of the polity (who will be on the record of the Court) and potentially different legal representatives of an individual Minister (assuming the legal representative can be identified). In such circumstances, in my opinion there can be no doubt that notification of the polity where the polity is already a party will in substance satisfy the requirements of s 66.

90    These are important procedural machinery provisions, but their purpose is to bring a claim to the attention of those who may have proprietary interests affected. Where a polity, or more than one polity, as is common in native title claims, is already on the Court’s record as a party, then the purpose of the notification provisions will be achieved if that party is notified in accordance with s 66, irrespective of whether a second formal notification is issued to a Minister as defined in s 253.

91    Sections 87 and 87A, the consent determination powers, also use these terms. That is of course consistent with their use in s 61, s 66, and s 84.

92    Section 87(1) sets out the preconditions for an effective agreement to recognise native title. Those preconditions include, in s 87(1)(aa):

(aa)    all of the following are parties to the agreement:

(i)    the parties to the proceedings;

(ii)    the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and

93    These terms are consistent with the purposes I have explained above. The legislative scheme is concerned to ensure that any or all of the three governing polities in Australia under the Constitution – the Commonwealth, the States and the Territories – are joined to proceedings where native title claims (or determinations, or orders of other kinds under the Native Title Act) may affect the proprietary interests they hold on behalf of their respective communities. The default mechanism chosen is the mandatory joinder of a responsible Minister (s 84(4)).

94    However, by the time the point of a consent determination is reached, s 87(1)(aa) identifies – relevantly – only the “parties” to the proceeding.

95    By the point s 87 is reached, either the default applicant party provision by operation of law under s 61, or the similar default respondent party under s 84, has been identified. That is why it is sufficient at the s 87 stage of the scheme for Parliament to refer only to the “parties”. This is further supported by both ss 87 and 87A applying following the end of the period specified in the notice given under s 66, known as the ‘notification period’ – where it can be inferred that the State, Territory or Commonwealth has arranged either the default entity or specified Minister to be a respondent party.

96    I note s 87(1)(aa)(ii) carves out a specific process for the Commonwealth as an intervenor (see s 84A) but that is not relevant to the construction exercise in issue. The intervention power available under s 84A is appropriately much wider than any basis in proprietary rights. It is based on the Commonwealth’s wider interest “in a matter arising under this Act”. That may include a matter of the construction of the Native Title Act, or its field of operation, or it may relate to a specific claim.

97    Section 87A operates in my opinion in the same way, but its application is of course restricted to circumstances where there is agreement over part of a claim area. That is the provision under which the present agreements in the three parts of the Cape York United #1 claim being determined today and tomorrow arise. There is nothing invalid or inappropriate about the fact that, by this stage of the Cape York United #1 claim proceeding, the “party” for the purposes of s 87A(1)(c)(viii) is not the default party of a responsible Queensland State Minister, but is instead the entire responsible State polity, the State of Queensland. It is the State as a polity which will best be able to coordinate, consult and ultimately control all the various governmental proprietary interests which are likely to arise in a complex claim such as Cape York United #1, with an enormous variety of land tenures and land tenure history.

98    My constructional conclusion therefore is that ss 61, 66, 84, 87 and 87A use the terms “State or Territory Minister” and “Commonwealth Minister” as a way of identifying parties who are joined to proceedings by operation of law, so as to further the purposes of the legislative scheme. The use of those terms is not intended by Parliament to be exclusionary or entirely definitional, and should not be understood as precluding a relevant polity – be it a State, a Territory or the Commonwealth, or any combination of these – from either being a moving party in a proceeding, or being a respondent party named by an applicant.

99    Another way of approaching this is to describe the use of these terms in the various sections, including s 84(4), as needing to be reconciled with the Preamble, the objects and the evident purposes of the Native Title Act, including the focus in many other provisions on the obligations and functions of the Commonwealth, the States and the Territories as polities. For the reasons I have given, the language in these provisions is not intended to restrict the choice of applicants or respondents, or of the polities themselves, to be the appropriate party to a native title proceeding, rather than a Minister. “Non-compliance” with these terms, in a literal sense does not lead to any invalidity, and does not require the amendment of parties to a proceeding to conform to this literal language. These provisions provide for a default position, by operation of law, but not one that is intended to be exclusive or restrictive. See generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70], Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [43]-[44].

Consequentialist construction arguments

100    While resort to the consequence of a particular construction may move in and out of favour as a tool of statutory construction, the present circumstances are an example of where a consequentialist construction brings the constructional choices into stark contrast.

101    The consequences of a narrow or legalistic construction of s 84 for previous orders and determinations of this Court over the last 30 years could produce chaos. Up to the decision in Arnaboldi, almost every single decision from the commencement of the Native Title Act, in this Court and in the High Court, aside from those in New South Wales where there has been a singular and different practice adopted, has named a State or Territory as a respondent. An early and symbolic example is Wik Peoples v State of Queensland [1996] HCA 40; 187 CLR 1. It is fair to say that the overwhelming majority of Native Title Act jurisprudence comes from outside New South Wales; notably Western Australia, South Australia, Queensland and the Northern Territory, with each of these polities being the usual respondent or applicant party.

Practicalities

102    Further, as the joint submissions in Madrill pointed out, it may in a practical sense be the case that there has been, as a matter of government administration, an authorisation or agreement within government that the legal representatives for a State or Territory should conduct litigation under the Native Title Act on behalf of the State and Territory, and concomitantly, that the State or Territory is therefore considered to be the appropriate party.

103    It is not difficult to imagine circumstances where various government departments may have greater interests than others – for example, a sea claim may involve different government departments and proportionately different involvement than a claim over land. Claims involving national parks might be another example. These are internal matters for each government party to determine for itself. It may often be inappropriate and unnecessary for that to be disclosed to the Court, and certainly to other parties: those are maters for government. Although in Madrill, the Northern Territory adduced evidence to this effect as part of an agreed statement of facts filed in support of the proposed determination of native title by consent, for my own part I would not wish it to be thought that such evidence is required in every case. As it does in many aspects of the administration of the Native Title Act, and especially in matters of procedure, the Court is entitled to assume, and rely upon, a government party acting appropriately and in accordance with its own administrative processes.

104    Another practicality about a literal and mandatory approach to s 84(4) is that there may not in fact be a Minister that meets the description in the Native Title Act definitions. Thus, a non-existent ministerial office and office holder might end up being identified as a respondent to a proceeding. That cannot have been Parliament’s intention.

CONCLUSION ON PROPER PARTIES

105    I respectfully disagree with the obiter remarks in Arnaboldi. I consider the construction suggested in that decision is wrong. In my opinion, the provisions in s 84(4), and like provisions in ss 61, 66, 87 and 87A are not restrictive and literal preconditions or requirements, non-compliance with which leading to any invalidity. Rather they are default provisions, intended to join parties by operation of law, and then ensure necessary steps in the legislative scheme are taken by, or directed at, some person representing a polity. Parliament’s intent is to ensure that where State or Territory proprietary interests, or Commonwealth proprietary interests, are affected, at least an executive representative of the polity concerned is before the Court. There is no legal difficulty with representation – and conduct of a proceeding – being at the Ministerial level if that is what government considers appropriate. Likewise, there is no legal difficulty with representation – and conduct of a proceeding – being at the widest possible level; namely, the polity itself. These are choices for government to make, and Parliament did not intend to constrain or restrict those choices by its references to Ministers in these various provisions.

106    For these reasons no additional orders are needed in the consent determinations the Court is making in this round of determinations under s 87A, nor in any of the other proposed determinations in the Cape York United #1 claim in the future. There is no legal infirmity or difficulty with determinations made in this proceeding in the past.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

107    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.

108    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.

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

110    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

111    As the applicant sets out at [41]-[46] 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

112    For the reasons set out at [47]-[52] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

113    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the proposed 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

114    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.

115    In relation to the eight determinations, including this determination for the Olkola People, 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. 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 generally been well supported to participate, if they chose to do so. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests.

116    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.

117    The role of the State of Queensland in the detailed step-by-step process in the Cape York United #1 claim has involved considerable human and financial resources, and the Court acknowledges its dedication to assisting group members to secure determinations of native title wherever possible. Other respondents to the Cape York United #1 claim have also derived considerable benefit from the tremendous contribution by the State, which has relieved those respondents of a great deal of work. The Court can be confident the State has reached a carefully considered view before agreeing to these determinations.

ORDER SOUGHT UNDER S 199C(1A)

118    There are four current indigenous land use agreements (ILUA) in place in relation to parts of the Olkola determination area. They are all area ILUAs. The parties submit an order pursuant to s 199C(1A) of the Native Title Act should be made, directing the Registrar not to remove the details of the Peninsula Developmental Road ILUA (QI2016/049), the Kalinga Mulkay ILUA (QI2010/036), the Thingalkal ILUA (QI2014/071) and the Olkola Land Transfer ILUA (QI2014/085) 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.

119    Relevantly to the present situation, s 199C(1)(a) and (b) provide:

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

(a)     in the case of an agreement under Subdivision B 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 the persons who, under the determination, hold native title in relation to the area are not the same as those who had previously been determined to hold it; or

(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; …

120    The State submits that the applicable provision is s 199C(1)(b), because each of the four ILUAs is an area agreement. I accept that submission.

121    Section 199C(1A) sets out three requirements for the making of an order which will have the effect of ensuring the Registrar does not comply with their otherwise extant obligations under (relevantly here) s 199C(1)(b). 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.

122    In relation to sub-s 199C(1A)(a), the State submits that 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. Similarly, the Kalinga Mulkay ILUA covers an area located northwest of Laura and in the vicinity of the Hann River Roadhouse and was entered into by Michael Ball, Esmae Bowen, Delores Friday, Aileen Gale, Gavin Googleye, Kevin Johnson, Thomas George (Jnr), Colin Lawrence, Elaine Price, Michael Ross, Josephine Sailor, Edward Turpin and Brandon Ford, without inclusion of or reference to particular groups as separate parties or reference to those particular groups who authorised the agreement. Third, the Olkola Land Transfer ILUA covers an area located in central Cape York Peninsula including the Olkola National Park and was entered into by Michael Yam, Phillip Yam, Michael Ross, Andrew Malcolm, Fred Coleman, Michael Friday Snr and Christopher Bally on their own behalf and on behalf of the Olkola People, without inclusion of or reference to particular groups as separate parties or reference to those particular groups who authorised the agreement. And finally, the Thingalkal ILUA covers a small geographical area located approximately 10km east of Dixie Station in the vicinity of the Morehead River and was entered into by Fred Coleman, Erica Walker, Ross Ford, Dwayne Lewis Musgrave, Jeanne Lyall, Paul Turpin and Conrad Yeatman (Jnr) on their own behalf and on behalf of the Thaypan people, without inclusion of or reference to particular groups as separate parties or reference to those particular groups who authorised the agreement.

123    The State supports and presses for an order under s 199C(1A) out of an abundance of caution in circumstances where the group descriptions of those who authorised the above ILUAs do not reflect, on the face of it, the group descriptions proposed in the Olkola s 87A agreement.

124    For those reasons, the State submits s 199C(1)(b), and s 199C(1A)(a), are engaged.

125    With respect to sub-s 199C(1A)(b), the State submits this requirement is met because it is the Olkola native title group that seeks the order under s 199C(1A).

126    With respect to sub-s 199C(1A)(c), the State submits this requirement is met because the Olkola native title group passed resolutions at the Olkola authorisation meeting on 29 February 2024, accepting the terms of the four ILUAs and directing the applicant to seek an order pursuant to s 199C(1A) that the ILUAs not be removed from the Register.

127    The State also submits (at [42]-[43]):

There has been no authority which has considered when s 199C(1)(b) may be engaged. In circumstances where 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, and the State is not privy to any materials regarding the original authorisation of the ILUAs, the State supports, and presses for, the proposed s 199C(1A) order out of an abundance of caution.

The State recognises that the form of the order made under s 199C(1A) is a direction to the Registrar not to remove the Peninsula Development Road ILUA, the Kalinga Mulkay ILUA, the Olkola Land Transfer ILUA and the Thingalkal ILUA from the Register. In recognition that the Registrar is not, and cannot otherwise be, a party to the relevant s 87A agreements, the State wrote to the Registrar on 19 February 2024 seeking the Registrar’s position with respect to the proposed s 199C(1A) orders. The Native Title Registrar responded on 22 April 2024, indicating that they neither consent nor oppose the order being sought. In those circumstances, the State submits that it is appropriate for the proposed s 199C(1A) order to be made notwithstanding the Registrar has not been joined as a party to this proceeding.

128    The applicant also supports these submissions, as I understand it. I accept that the course of conduct taken by the State in notifying the Registrar was appropriate, and that it is appropriate to make the orders sought out of an abundance of caution.

129    As I have previously explained (see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176 at [78]), 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 claimants who authorised an ILUA and those native title holders who are recognised in a determination. I do not consider it is necessary in the present circumstances of a s 87A agreement for the Court to embark on any detailed consideration of what level of overlap is strictly required. Section 199C(1A) is a facultative provision, and should be construed with the principal objects of the Native Title Act of mediation and resolution of claims by consent in mind. As the State submits, there is no authority dealing precisely with the circumstances in which s 199C(1)(b) may be engaged. It is not appropriate where there are s 87A agreements to expand any further upon the construction and operation of s 199C(1)(b).

130    Given the resolution passed by the Olkola People, I am satisfied it is appropriate for the order sought by the parties 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

131    A PBC has been nominated under ss 56 or 57 of the Native Title Act for each of the eight determinations. In the 2024 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. The PBC nominated for the Olkola determination is the Ut-Alkar Aboriginal Corporation (ICN 10231). Although this decision was not a unanimous decision, the Court is satisfied that the nomination of this PBC is appropriate, and did not accept the arguments to the contrary put on behalf of Ms Symonds in the interlocutory application.

CONCLUSION

132    The Cape York United #1 claim continues to be a highly complex proceeding. As the narrative about the process towards the Olkola determination demonstrates, reaching agreement under s 87A for each native title holding group over their particular country has its challenges. The Olkola, Kowanyama People and Kunjen Olkol determinations, including the shared country determinations, demonstrate the care and goodwill that is needed between neighbours to ensure robust traditional owner-led negotiations about boundaries can lead to positive results.

133    Nevertheless, there continues to be a tremendous amount of goodwill and cooperation amongst the parties to the proceeding, and the Court has been greatly assisted by their respective efforts. Like the ones which have gone before it, the Olkola determination is a testament to the dedication of a significant number of individuals: in particular the Court acknowledges the members of the applicant, and their committed and highly capable legal representatives, anthropologists, and other expert advisers. The Court recognises the critical role played by the State of Queensland, its officers and various departmental officials and its legal representatives, whose contributions to the continued progress of determinations within the Cape York United #1 proceeding area have been undertaken with the highest level of skill and commitment. The Court is grateful too for the cooperation and timely participation of all other parties to the proceeding, their legal representatives and other advisers. The continued devotion of considerable resources to the resolution of this proceeding by the CYLC has been the key to the fulfilment of the ambitious timetable agreed between the parties and endorsed by the Court.

134    The Court commends the work of Judicial Registrar Simon Grant in the processes that have led to the Court’s decisions today. The Court thanks all its staff for their work behind the scenes in relation to mediations, hearings, travel, communications and preparation of orders and reasons. In this round of determinations, it is appropriate in particular to acknowledge the past contribution of Mr Jared Lane, the Court’s National Logistics and Remote Hearing Coordinator, whose role has been integral to the conduct of case management conferences and mediations during the process leading up to agreements, and to successful conduct of determination hearings. Mr Lane has recently left the Court to take up a position with the Queensland Government’s Truth-telling and Healing Inquiry, and the Court wishes him well. The work of all the Court’s staff is just as vital to the outcome today as any of the more visible work a Judge might do.

135    For those who have long been denied any recognition by Australian law of their deep and abiding connection to country, the recognition of the native title of the Olkola People is one more step in the struggle of this country’s First Nations Peoples to regain some control over what was taken away from them, and to make their own choices about how their country and its resources are protected, used and maintained.

Associate:

Dated:    10 July 2024

SCHEDULE OF PARTIES