FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 25) (Kunjen Olkol determination) [2024] FCA 741

ORDERS

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

THE COURT NOTES THAT:

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

THE COURT ORDERS THAT:

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

BY CONSENT THE COURT ORDERS THAT:

1.    Pursuant to s 199C(1A) of the Native Title Act 1993 (Cth) the Registrar is not to remove the Olkola Land Transfer ILUA (QI2014/085) from the Register of Indigenous Land Use Agreements, at least to the extent the Indigenous Land Use Agreement falls within the External Boundary.

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 Kunjen Olkol 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 Kunjen Olkol Aboriginal Corporation (ICN: 10246), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

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

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

LIST OF SCHEDULES

Schedule 1 – Native Title Holders    

Schedule 2 – Other Interests in the Determination Area    

Schedule 3 – External Boundary    

Schedule 4 – Description of Determination Area    

Schedule 5 – Areas Not Forming Part of the Determination Area    

Schedule 6 – Map of Determination Area    

Schedule 1 – Native Title Holders

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

(a)    Maggie Johnson;

(b)    Kitty (wife of Bob Sellars);

(c)    Bob Sellars;

(d)    Dick Callaghan;

(e)    Topsy Callaghan;

(f)    Frank Yam;

(g)    Frank (father of Jimmy Koolatah, Coglin Dick and Kunjen Dick);

(h)    Bob Banjo Gordon;

(i)    Charlie (father of Jack Burton);

(j)    Willie Johnson (aka Jack Johnson);

(k)    Mo Billy (mother of Billy Flower and Goggleye);

(l)    Nellie (mother of Ada Lyall);

(m)    Mosquito;

(n)    Herbert Miller;

(o)    Tommy McKenzie;

(p)    Annie Burns (aka Annie Massey/Lawrence);

(q)    Brumby (aka Jack Brumby);

(r)    Jimmy ‘Jack’ Lefthand (aka Jack Dunbar);

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

(t)    Maggie (mother of Annie Ah Sam);

(u)    Nancy Gordon (spouse of Jack Burton);

(v)    Tommy Ketchup (spouse of Nellie);

(w)    Nellie (spouse of Tommy Ketchup);or

(x)    Hector Reynolds.

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); and

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

2.    The rights and interests of Olkola Aboriginal Corporation as trustee in fee simple over that part of Lot 21 on SP241432 that falls within the External Boundary pursuant to deeds of grant under the Aboriginal Land Act 1991 (Qld).

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 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.

5.    The rights and interests of Wendy Eva Kozicka under the Land Act 1962 (Qld) as the holder of rolling term lease (PH0/217691) for pastoral purposes over that part of Lot 434 on SP136214 (known as Strathleven) that falls within the External Boundary.

6.    The rights and interests of Scott Alexander Harris under the Land Act 1962 (Qld) as the holder of rolling term lease (PH14/5063) for pastoral purposes over that part of Lot 1 on SP280074 that falls within the External Boundary.

7.    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 its Local Government Area:

(b)    as the:

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

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

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

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

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

(i)    undedicated but constructed roads except for those not operated by the 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 7(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 7 and paragraph 8 below;

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

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

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

9.    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.

10.    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:

11.    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.

12.    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.

13.    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 southern bank of Maddigans Creek and the eastern boundary of Lot 13 on CTH3 (Koolatah), also being the eastern boundary of Kowanyama People Part B Native Title Determination (QCD2012/016); then generally easterly along the southern bank of Maddigans Creek, Ten Mile Creek and a tributary of that creek until its headwaters at Longitude 143.451733° East, Latitude 15.773102° South; then easterly until the intersection with King River at Longitude 143.600917° East, passing through the following coordinate points:

then generally north easterly, and generally easterly along the southern bank of the King River and a tributary of that river until its headwaters at Longitude 143.816676° East, Latitude 15.729642° South; then easterly until a point on the Great Dividing Range at Latitude 15.729880° South; then generally southerly along the centreline of the Great Dividing Range until an internal boundary of Lot 5218 on PH1103 (commonly known as Fairlight Station) at Longitude 143.840732° East, also being the southern boundary of an unnamed road corridor; then south westerly along that internal lot boundary until the western boundary of Fairlight Station; then southerly along the western boundary of Fairlight Station and its prolongation until the intersection with the centreline of the Palmer River; then westerly along the centreline of the Palmer River until the junction with the centreline of Twelve Mile Creek; then south easterly along the centreline of Twelve Mile Creek until the intersection with the southern boundaries of the Cook Shire local government area (and the Cape York Land Council native title representative body area); then generally westerly along the southern boundaries of the Cook Shire local government area and the Cape York Land Council native title representative body area until a point near Windermere Lagoon at Longitude 142.801773° East; then north westerly and northerly until a point on the eastern boundary of Lot 13 on CTH3 (Koolatah) and Kowanyama People Part B Native Title Determination (QCD2012/016) at Latitude 15.790683° South, passing through the following coordinate points:

then northerly and north easterly along the eastern boundaries of that lot and determination 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:

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.

(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.

Schedule 6 – Map of Determination Area

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    The parties have sought a determination of native title under s 87A of the Native Title Act 1993 (Cth), with associated orders, recognising the native title of the Kunjen Olkol People. This determination is being made on the same day as determinations recognising the native title of the Olkola 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 identified 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 Kunjen Olkol People’s traditional country is agreed to include land and waters in the central-southern region of Cape York Peninsula encompassing parts of the Palmer and King Rivers. The Kunjen Olkol determination area is approximately 442,858 hectares with approximately 12,782 hectares of the determination area being recognised as exclusive native title.

5    The material filed in support of the determination in favour of the Kunjen Olkol People reveals the traditional connection of the Kunjen Olkol People to the determination area.

6    Kunjen Olkol elder Ms Rhonda Gilbo, who swore an affidavit in this proceeding on 16 March 2023, describes her rights in Kunjen Olkol country (at [67]-[69] of her affidavit):

What I grew up and from what I heard and have been told by people like mum, Sister Daph and my older brother Monty is that we own the country that our ancestors lived on. They used the resources in those areas to survive from generation to generation.

I can go back to Kunjen Olkol country whenever I want to. No one has ever tried to stop me going back to country.

I have this right to go back to country because I am connected to country through our ancestors.

7    Ms Alison Brumby, a member of the Cape York United #1 claim group and member of the Kunjen Olkol People, also provided a witness statement in this proceeding on 1 March 2023. Ms Brumby explains her connection to Kunjen Olkol country through her ancestors, and the importance of that connection being passed down to future generations (at [111]-[112] of her witness statement):

When l am going to places on country like the Palmer River or Alice River I can really feel the presence of mum, nana and our ancestors. I can feel the presence of nana and mum because they were born and lived in those places so I sing out to them and tell them that I am here on country and 1 am with the family. We have to do this so that we are safe and so that we can catch some fish.

I tell mum, nana and the ancestors who is with me so that they know especially if there are young children and this is a way of introducing the children to the ancestors and their country.

8    The Court’s orders represent the long overdue recognition by Australian law of the Kunjen Olkol People’s ongoing and pre-existing native title. The Court’s orders will assist the preservation and protection of Kunjen Olkol country, as Kunjen Olkol People have done for thousands of years, so that their knowledge and law can continue to be passed down to future generations.

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

THE MATERIAL BEFORE THE COURT

10    The 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.

11    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 (2024 Wirrick affidavit). 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.

12    Ms Malyon is the Principal Legal Officer at the Cape York Land Council, and has had carriage of the Cape York United #1 claim. In the 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 Kunjen Olkol s 87A agreement was approved, including pre-authorisation and authorisation meetings.

13    Ms Malyon deposes to how the Kunjen Olkol Aboriginal Corporation (ICN 10246) was nominated as the prescribed body corporate (PBC) for the Kunjen Olkol determination. Ms Malyon annexes to her affidavit the consent to the nomination of the Kunjen Olkol Aboriginal Corporation (ICN 10246) to act as the PBC for the determination area.

14    In relation to the Kunjen Olkol 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 Taylor dated 14 November 2017 and filed 16 November 2017;

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

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

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

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

(f)    witness statement of Simpson Yam dated 6 December 2018 and filed 31 May 2024;

(g)    witness statement of Charlotte Yam dated 18 January 2019 and filed 31 May 2024;

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

(i)    affidavit of Ms Gilbo dated 16 March 2023 and filed on 31 May 2024;

(j)    affidavit of Ms Brumby dated 1 March 2023 and filed 31 May 2024;

(k)    apical report of Ms Waters dated 22 February 2021 regarding Banjo Gordon (aka Bob Banjo) and filed 31 May 2024;

(l)    apical report of Ms Waters dated 22 February 2021 regarding Jack Burton and filed 31 May 2024;

(m)    apical report of Ms Waters dated 23 October 2023 regarding Annie Burns (spouse of Possum Massey) and filed 31 May 2024;

(n)    apical report of Ms Waters dated 23 October 2023 regarding Herbert Miller and filed 31 May 2024;

(o)    apical report of Ms Waters dated 23 October 2023 regarding Nancy Gordon (spouse of Jack Burton) and filed 31 May 2024;

(p)    apical report of Ms Waters dated 23 October 2023 regarding Nellie (mother of Ada Lyall) and filed 31 May 2024;

(q)    apical report of Ms Waters dated 23 October 2023 regarding the removal of potential apical ancestors from Kunjen Olkol description and filed 31 May 2024;

(r)    apical report of Ms Waters dated 30 October 2023 regarding Nellie (spouse of Tommy Ketchup) and filed 31 May 2024;

(s)    apical report of Ms Waters dated 30 October 2023 regarding Maggie (mother of Annie Ah Sam) and filed 31 May 2024;

(t)    apical report of Ms Waters dated 30 October 2023 regarding Tommy Ketchup and filed 31 May 2024;

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

(v)    apical report of Ms Waters dated 6 November 2023 regarding Tommy McKenzie and filed 31 May 2024;

(w)    apical report of Ms Waters dated 9 November 2023 regarding Jimmy Jack Lefthand and filed 31 May 2024;

(x)    apical report of Ms Waters dated 9 November 2023 regarding Hector Reynolds and filed 31 May 2024;

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

(z)    apical report of Ms Waters dated 10 November 2023 regarding Nellie Highbury (Patterson) and filed 31 May 2024.

15    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 Kunjen Olkol People have been resolved, and ensuring that there was adequate material to support, in particular, the boundary and group descriptions proposed for the determination.

PROCEDURAL HISTORY

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

17    The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made in November 2021: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [3], [12]-[19], [30]-[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]-[20], [28]-[35]. In addition to those determinations, 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 Kunjen Olkol section 87A agreement

18    Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Kunjen Olkol 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 Kunjen Olkol People and their neighbours; and the process to settle group composition, by identification of apical ancestors.

19    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].

20    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.

21    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.

22    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.

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

24    The CYLC held ‘preliminary meetings’ between 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.

25    The CYLC facilitated a number of ‘boundary meetings’ between neighbouring native title groups where instructions were taken as to final descriptions of common boundaries. These took place between 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.

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

27    The 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.

28    Members of the Kunjen Olkol native title group attended these meetings, and agreement was reached as to boundaries.

29    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 the provision to the State of 15 ancestor reports by Ms Waters relating to the Kunjen Olkol people. These reports are referred to at [14(k)-(z)] above.

30    The s 87A agreements were settled and authorised after the BINM process, and the group description process, were complete. The members of the group of native title holders defined in the Kunjen Olkol determination considered the terms of the Kunjen Olkol s 87A agreement at a meeting on 28 February 2024 and directed the applicant to enter into that agreement. The direction to the applicant brings me to the question of the authorisation of the applicant to enter into separate s 87A agreements.

The authorisation of the Cape York United #1 applicant

31    The applicant’s authority to enter into the Kunjen Olkol 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.

32    Nevertheless, in the Kuuku Ya’u determination at [38]-[50] and the 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.

33    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.

34    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 KUNJEN OLKOL NATIVE TITLE GROUP TO THE DETERMINATION AREA

35    Both Dr Corrigan and Dr Redmond presented a detailed analysis of the connection of the Kunjen Olkol 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.

36    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.

37    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.

38    The material from Kunjen Olkol People themselves, whether recorded in anthropological reports or provided separately as witness statements, described the lived experiences and connections to culture and country 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.

39    Ms Rhonda Gilbo (nee Sellars/Callaghan) is a member of the Cape York United native title claim group and is also a member of the Kunjen Olkol People. Ms Gilbo swore an affidavit in this proceeding on 16 March 2023. The applicant and State rely on this affidavit (amongst other material) in support of the Kunjen Olkol People’s continued connection to the determination area, under traditional laws and customs since prior to sovereignty.

40    In her affidavit, Ms Gilbo sets out her family history and her connection to the Kunjen Olkol determination area, including explaining how she knows places and stories (at [56]-[57] of Ms Gilbo’s affidavit):

My country through my Kunjen Olkol side includes places like Oriners/Sefton, Drumduff, Strathleven, Alice River, Mitchell River and the Palmer River. I know that those places are in Kunjen Olkol country from some of the stories that my mother Loma and Sister Daph told me and also from what my older brother Monty told me.

I also learnt about Kunjen Olkol country from people like dad Tommy and those other Kunjen Olkol men that I worked with on the mustering crew. People like old William Johnson who was one of old Johnson's sons. He spoke Olkola; he spoke the same language as my mum.

41    Ms Gilbo explains the cultural protocols that must be followed for strangers visiting Kunjen Olkol country such as “asking permission, being welcomed to the old people and being warmed” (at [72] of her affidavit). Ms Gilbo describes the consequences of not following these cultural protocols, including the rules which must be followed such as staying away from story places and respecting country: “If they don't follow our rules they could get lost on country or get sick or injured.”

42    Ms Gilbo continues (at [114] of her affidavit):

Warming is something that has been happening for as long as I can remember. A fire is made with ironwood branches and when the fire bums down a bunch of ironwood leaves are put on the coals to make smoke. The fire lightly bums the leaves and the smoke from the leaves is used for warming. When the leaves are cool enough an elder women will warm the females and the elder male warms the males and taps people on the body and around the head and will talk to the ancestors. This is a spiritual thing that we do and we still do this to this day.

43    Ms Gilbo then explains “singing out” in language to ancestors when she is on her country:

I let the old ancestors know that I am going fishing and will sing out and say something like, “ayeeno” which in or language means hello, “we come back home and we want to catch some guyu (fish) and elgoya (turtle) and we have come back to see you all”.

44    Dr Redmond situates Ms Gilbo’s evidence extracted at [43] above as “a form in which claimants articulate their language identities” (at [101] of the 2023 Redmond Report).

45    Ms Allison Brumby is also a member of the Cape York United native title claim group and is also a member of the Kunjen Olkol people. Ms Brumby signed a witness statement in these proceedings on 1 March 2023. The applicant and State rely on this witness statement (amongst other material) in support of the Kunjen Olkol People’s continued connection to the determination area, under traditional laws and customs since prior to sovereignty.

46    Ms Brumby’s connection to Kunjen Olkol is through her mother, Daphne and her mother, Nancy Johnson and Daphne’s father, Willie Johnson (at [40]-[42] of her statement):

l know where my mother’s and grandmother's country is because when I was growing up mum and nana would talk to me about their country and I would hear them talk to each other about different places on country.

My knowledge of mum's and nana's country is that it includes places such as Alice River. Palmer River. Drumduff, Strath leven, Kingvale and the Mitchell River. Mum and nana used talk about these places when l was growing up.

1 also talk to other Kunjen Olkol people like Fred Gogleye. I have asked him about different places and the special story places. I talk to Fred about places on country so I don’t get sick or do the wrong thing which might upset the ancestors.

47    The importance of the Palmer River, which runs through the Kunjen Olkol determination area, is explained by Ms Brumby (at [83]-[88] of her statement):

We also take wild cucumbers which are smaller than a normal cucumber, wild bananas that only grows on the Palmer River, bush apples and wild oranges.

Wild yams are also found on the creeks and rivers such as the Palmer River and they can be cooked on the coals or boiled in water.

Water lilies are found at places where there is a lot of water like creeks, rivers and lagoons. The bulb is cooked on the coals.

The types of fish that we catch on the Palmer River are; freshwater cod, bream, perch, catfish, barramundi, jew fish, short and long neck turtles and the file snake.

An important rule that we have is that we must share when we hunt or fish on country. If I don’t share. I will get sick.

I learnt from mum and nana that when we catch too much fish, not to be greedy and to leave some for the ancestors. Even the cooked fish that is in the hot sand or coals we tell the old people “we left you fish there”. If we don’t tell them that, they will follow us and torment us. I saw my mum do this and I still sing out to my ancestors to this day. I was told by mum that we do this because 1 might get sick or I might get lost or stranded on country. I also tell my children and grandchildren that they must do this too or our ancestors might make them sick or they might have an accident.

48    Ms Brumby explains how she has taught and is teaching her children and grandchildren to respect country and their ancestors (at [114] of her statement):

My children and grandchildren know that they have to talk to their boy [grandfather] and girl [grandmother] ancestors and thank them when we catch fish. They have learnt this from me and I know to do this from watching mum, nana and nana Lorna Sellars.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

49    Section 87A applies to an agreement reached “at any stage” of an existing proceeding for a proposed determination of native title in relation to an area (the determination area) that is “part of, but not all of”, the area covered by the native title determination application under s 61 of the Native Title Act.

50    Sub-section 87A(1) requires:

(a)    the existence of a proceeding in relation to an application for a determination of native title;

(b)    after the period specified in a notice given under s 66 of the Act, an agreement in writing for a proposed determination of native title in relation to part, but not all, of the application area;

(c)    all those set out in sub-s 87A(1)(c) who are parties to the proceeding are also parties to the s 87A agreement; and

(d)    that the terms of the agreement are in writing and signed by, or on behalf of, the requisite parties to the proceeding.

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

52    Sub-sections 87A(4) to (6) provide:

(4)    The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(a)    an order in, or consistent with, the terms of the proposed determination would be within its power; and

(b)    it would be appropriate to do so.

Note:     As the Court’s order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

(5)     Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

(a)    the order would be within its power; and

(b)    it would be appropriate to do so.

(6)     The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

Sub-section 87A(1): pre-requisites

53    As the applicant sets out at [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

54    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.

55    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

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

57    In relation to the eight determinations, including this determination for the Kunjen Olkol 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.

58    The Court affords considerable weight to the position taken by the State in supporting the applications for determination of native title, on behalf of all members of its community. I described the importance of the State’s role in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 10) [2022] FCA 1129 at [6], [56]. I adhere to those views.

59    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)

60    The Kunjen Olkol s 87A agreement reflects that there are rights and interests of parties under two current indigenous land use agreements (ILUA) in relation to parts of the Kunjen Olkol determination area – the Olkola Land Transfer ILUA (QI2014/085) and the PNG Gas Pipeline ILUA (QI2006/043). They are both area ILUAs.

61    In respect of the Olkola Land Transfer ILUA, 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 this ILUA 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 Olkola Land Transfer ILUA.

62    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; …

63    The State submits that the applicable provision is s 199C(1)(b), because the Olkola Land Transfer ILUA is an area agreement. I accept that submission.

64    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.

65    In relation to sub-s 199C(1A)(a), the State submits that 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.

66    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 Olkola Land Transfer ILUA do not reflect, on the face of it, the group descriptions proposed in the Kunjen Olkol s 87A agreement.

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

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

69    With respect to sub-s 199C(1A)(c), the State submits this requirement is met because the Kunjen Olkol native title group passed resolutions at the Kunjen Olkol authorisation meeting on 28 February 2024, accepting the terms of the Olkola Land Transfer ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that this ILUA not be removed from the Register.

70    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.

71    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.

72    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).

73    Given the resolution passed by the Kunjen Olkol 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

74    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. In these circumstances, the Court is satisfied that the nomination of each of the PBCs is appropriate. The PBC nominated for the Kunjen Olkol determination is the Kunjen Olkol Aboriginal Corporation (ICN 10246).

THE STATE OF QUEENSLAND AS A RESPONDENT

75    In Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 24) (Olkola determination) [2024] FCA 740 at [53] to [106], I conclude there is nothing irregular or inappropriate, let alone unlawful, about the State of Queensland being named as a respondent to this proceeding, despite the literal terms of s 84(4) of the Native Title Act. I explain why I have reached that conclusion in some detail in those reasons, and I adopt the conclusion and reasoning in this determination.

CONCLUSION

76    The Cape York United #1 claim continues to be a highly complex proceeding. 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.

77    There continues to be a high level of 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 Kunjen Olkol determination is a testament to the dedication of a significant number of individuals: in particular the Court acknowledges the members of the Cape York United #1 claim applicant, and their committed and highly capable legal representatives, anthropologists, and other expert 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.

78    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.

79    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.

80    The Court’s final acknowledgment should be saved for the Kunjen Olkol People themselves. 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 Kunjen Olkol 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

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