FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 27) (Kowanyama People #3 identified parcels determination) [2024] FCA 743

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.    Determinations of native title were made in favour of the Kowanyama People on 22 October 2009, 5 December 2012 and 31 October 2014 in Kowanyama People v State of Queensland [2009] FCA 1192, Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377 and Daphney on behalf of the Kowanyama People v State of Queensland [2014] FCA 1149 (the Kowanyama People Determinations) in relation to areas of lands and waters along the south-western coastline of Cape York Peninsula, generally from the Coleman River, in the north, to Staaten River in the south.

B.    The township of Kowanyama did not form part of the Kowanyama Determinations but is wholly surrounded by the Kowanyama Determinations.

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

D.    This Determination relates to those areas identified in recital B above, being the areas in the township of Kowanyama (referred to in this proceeding as the Kowanyama Identified Parcels) that did not form part of the Kowanyama Determinations, and that may be claimed as part of the Native Title Determination Application.

E.    The Applicant agrees that the areas listed in Part 1 of Schedule 4 are areas where native title has been wholly extinguished.

THE COURT ORDERS THAT:

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

BY CONSENT THE COURT ORDERS THAT:

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

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

4.    The determination area is the land and waters described in Schedule 3 and depicted in the map attached to Schedule 5 to the extent those areas are not excluded by the terms of Schedule 4 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

5.    Native title exists in the Determination Area.

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

7.    Subject to orders 9, 10 and 11 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 3 are:

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

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

8.    Subject to orders 9, 10, and 11 below, the nature and extent of the native title rights and interests in relation to the land and waters Part 2 of Schedule 3 are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(c)    hunt, fish and gather on the land and waters of the area;

(d)    take the Natural Resources from the land and waters of the area;

(e)    take the Water of the area for personal, domestic and non-commercial communal purposes;

(f)    be buried and to bury Native Title Holders within the area;

(g)    maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs on the area and protect those places and areas from harm;

(h)    teach on the area the physical and spiritual attributes of the area and the traditional laws and customs of the Native Title Holders to other Native Title Holders or persons otherwise entitled to access the area;

(i)    hold meetings on the area;

(j)    conduct ceremonies on the area;

(k)    light fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(l)    be accompanied on to the area by those persons who, though not Native Title Holders, are:

(i)    Spouses of Native Title Holders;

(ii)    people who are members of the immediate family of a Spouse of a Native Title Holder; or

(iii)    people reasonably required by the Native Title Holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.

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

(a)    the Laws of the State and the Commonwealth; and 

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

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

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

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

13.    The relationship between the native title rights and interests described in orders 7 and 8 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:

14.    The native title is not held in trust.

15.    The Abm Elgoring Ambung Aboriginal Corporation RNTBC (ICN: 7163), 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 57(2) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

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

LIST OF SCHEDULES

Schedule 1 – Native Title Holders    

Schedule 2 – Other Interests in the Determination Area    

Schedule 3 – Description of Determination Area    

Schedule 4 – Areas Not Forming Part of the Determination Area    

Schedule 5 – Determination Area Map    

Schedule 1 – Native Title Holders

1.    The Native Title Holders are the Kowanyama People. The Kowanyama People are those persons who comprise the people known as Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin Peoples. The Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples are those Aboriginal people who are descended by birth, or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Kowanyama People, from one or more of the following apical ancestors:

(a)    Solomon Minyalk;

(b)    Thin Mitin Mart;

(c)    Min Yal Panaurin;

(d)    Art Kadlaurin

(e)    any of the siblings Kal Koral, Kor Mart, Min Koko Taren or Mad Len;

(f)    Pow Mon Alithanem;

(g)    Kauan Kor Mar’pen;

(h)    any of the siblings Paul, Rio or Biddy;

(i)    Yor Kantl Yamen;

(j)    any of the siblings Mark, Barnabas or Kate;

(k)    Arthur, the father of Smiler Misson;

(l)    Luke;

(m)    any of the siblings Native, Wilson, Akul Edngan, Uyan or Ginger;

(n)    any of the siblings Major, Sergeant, Bobella or Gregory;

(o)    Mickey;

(p)    Boandonolly (aka Puntanolli);

(q)    George Black (aka Thamil Polp);

(r)    either of the brothers “Barramundi” Charlie or Lamp;

(s)    Gilbert;

(t)    Eagleman, the father of Barney Jubilee;

(u)    Joe Highbury;

(v)    Jackson;

(w)    Tent (aka Thol Kol Kith);

(x)    Bruno (aka Wurrpwin)

(y)    Min Kawlto Tower Moilin;

(z)    Wo Pam Mal Yamin;

(aa)    Mokara Hudson;

(bb)    either of the siblings George or Purt Ngon;

(cc)    Bob Patterson;

(dd)    Moses (aka War’luran);

(ee)    Yowalyamen;

(ff)    Jolly;

(gg)    either Mailman or his siblings;

(hh)    any of the siblings Stephen, Louie, Reubin (aka Robin), Jimmy Braddsley, Mabel Rio or Poppy;

(ii)    Old Mokara;

(jj)    Taw Wil Yir;

(kk)    Colin Dinghy;

(ll)    Fred Dunbar;

(mm)    Alick (aka Alec and Kauwunbengk);

(nn)    Goanna (aka Melder);

(oo)    Pluto;

(pp)    Either Mundie Shalfo or his sister;

(qq)    Piper;

(rr)    Willie Daphney;

(ss)    any of the siblings Fanny, Lucy Tommy, Waterloo, Elsie or Tommy Burns;

(tt)    Nipper;

(uu)    Dick;

(vv)    Peppo;

(ww)    Ben;

(xx)    Smiler;

(yy)    Bernard;

(zz)    Monday;

(aaa)    Kangaroo;

(bbb)    Mosquito;

(ccc)    either of the brothers Billy Flower or Goggle-Eye or their siblings;

(ddd)    Jimmy;

(eee)    either of the brothers Rainbow Christie or Bowyang Charlie;

(fff)    Nellie;

(ggg)    either of the brothers Bob Dunbar or Bendigo or their siblings;

(hhh)    any of the siblings Jimmy Koolatah, Coglin Dick, Kunjen Dick or George Murray;

(iii)    Frank Yam;

(jjj)    Brumby (aka Jack Brumby)

(kkk)    Old Mud;

(lll)    Charlie Inkerman;

(mmm)     any of the siblings Mimosa, Alison or May;

(nnn)    Maggie;

(ooo)    Bonbatable;

(ppp)    Cecil (brother of Kangaroo);

(qqq)    Dr Dick;

(rrr)    Possensnek;

(sss)    Lily Goatboy (sibling of George Black);

(ttt)    Moses; or

(uuu)    Nellie Highbury (Patterson).

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 Telstra Corporation Limited (ACN 051 775 556) and any of its successors in title:

(a)    as the owner or operator 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 its telecommunications facilities;

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

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

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

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

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

(i)    as the holder of a distribution authority;

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

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

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

3.    The rights and interests of the grantee and others under the Deed of Grant in Trust dated 3 May 2013 (No. 40066343) (the Kowanyama DOGIT) over:

(a)    That part of Lot 213 on SP272069 excluding the area subject to the Kowanyama People Part C Native Title Determination;

(b)    Lot 39 on SP272069;

(c)    That part of Lot 69 on SP272069 excluding the area subject to the Kowanyama People Part C Native Title Determination;

(d)    Lot 8 on SP272069;

(e)    That part of Lot 94 on SP272069 excluding the area subject to the Kowanyama People Part C Native Title Determination;

(f)    That part of Lot 95 on SP272069 excluding the area subject to the Kowanyama People Part C Native Title Determination; and

(g)    Lot 9 on SP272069.

4.    The rights and interests of Carpentaria Shire Council;

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

(b)    as the:

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

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

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

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

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

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

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 4(a), (b) and (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 4 and paragraph 6 below;

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

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

5.    The rights and interests of Kowanyama Aboriginal Shire Council:

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

(b)    as the:

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

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

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

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

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

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

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 5(a), (b) and (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 5 and paragraph 6 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 5(c) above; and

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

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

7.    The rights and interests of the State of Queensland 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.

8.    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:

9.    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.

10.    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.

11.    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 – Description of Determination Area

The Determination Area comprises all of the land and waters described by lots on plan, or relevant parts thereof described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 5, to the extent those areas are above the High-Water Mark and are not otherwise excluded by the terms of Schedule 4.

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 5:

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

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the Determination map contained in Schedule 5:

Schedule 4 – Areas Not Forming Part of the Determination Area

The following areas of land and waters are do not form part of the Determination Area as described in Part 1 of Schedule 3 and Part 2 of Schedule 3.

Part 1 – Areas excluded on the basis of extinguishment

1.    Those land and waters in the Determination Area, or any part thereof, as described in Part 1 of Schedule 3 and Part 2 of Schedule 3:

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

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

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

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

(c)    on which, at the time the Native Title Determination Application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

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

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

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

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

4.    The following areas of land and waters which at the time the Native Title Determination Application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

(a)    Lot 100 on SP272075;

(b)    Lot 101 on SP272075;

(c)    Lot 807 on SP263800; and

(d)    that part of Lot 21 on SP272075 excluding the area identified as closed road on SP272075.

Part 2 – Other excluded areas

1.     The land and waters subject to the Kowanyama People Part C Native Title Determination.

Schedule 5 – Determination Area Map

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    This determination recognises the native title of the Kowanyama People in relation to an area known as the ‘Kowanyama People #3 identified parcels’ that was excluded from their existing determinations made in separate proceedings. See: Kowanyama People v State of Queensland [2009] FCA 1192 (Kowanyama determination), Daphney on behalf of the Kowanyama People v State of Queensland [2014] FCA 1149 and Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377. This Kowanyama People #3 identified parcels determination area is entirely surrounded by the Kowanyama determination. This determination is over a total area of approximately 22.14 hectares, with 3.35 hectares being recognised as exclusive native title. Some of the parcels included in this determination are located in the Kowanyama township.

2    This Kowanyama People #3 identified parcels determination is being made on the papers, although broadly concurrently with determinations recognising the native title of the Olkola People, Kowanyama People and Kunjen Olkol People, each determination being made as part of the Cape York United #1 proceeding, and being part of the sixth group of determinations in this proceeding. Included in this tranche of determinations is another determination in favour of the Kowanyama People, referred to as Kowanyama People #2 which is an area of approximately 21,776 hectares of non-exclusive possession native title on the Alice River.

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’. The identified parcels the subject of this determination were first specified in the applicant’s report to the Court filed on 16 September 2020 and were managed with these report areas to ensure active case management. The parties are to be commended on the progress made in relation to these identified parcels which represent an important step in finalising recognition of the native title of Kowanyama Peoples over these parcels.

4    The Court is satisfied that all the requirements of the Native Title Act 1993 (Cth) have been met, that 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

5    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.

6    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 these proceedings by Ms Malyon on 27 October 2021 regarding the re-authorisation process undertaken by the applicant in the period from April to September 2021 (2021 Malyon affidavit).

7    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 Kowanyama People #3 identified parcels s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Abm Elgoring Ambung Aboriginal Corporation RNTBC (ICN 7163) was nominated as the prescribed body corporate (PBC) for the Kowanyama People #3 identified parcels determination. She annexes to her affidavit the written consent of that PBC to act as the PBC for the Kowanyama People #3 identified parcels determination.

8    The applicant does not rely on any witness statements or affidavits nor any expert evidence in respect of the Kowanyama People #3 identified parcels determination. Instead, the applicant and the State refer the Court to the existing Kowanyama determination. I consider this below.

PROCEDURAL HISTORY

9    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.

10    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 Kowanyama People #3 identified parcels section 87A agreement

11    Unlike the other determinations made by the Court in this round of determinations pursuant to s 87A, the traditional owner-led process conducted by the applicant to resolve group descriptions and boundaries (described as the Boundary Identification, Negotiation and Mediation Process) was not conducted in respect of the identified parcels the subject of this Kowanyama People #3 determination. Both the applicant and the State’s submissions identify and accept that this did not occur. Nevertheless, both the applicant and the State support the making of the determination as described in the s 87A agreement. I accept that for these kinds of parcels, it has not been necessary or appropriate to go through either of the more extensive processes ahead of the s 87A agreement.

The authorisation of the Cape York United #1 applicant

12    The applicant’s authority to enter into the Kowanyama People #3 identified parcels 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.

13    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.

14    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.

15    Similar orders are sought in each of the eight determinations being made in July 2024. The State agreed 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 KOWANYAMA PEOPLE NATIVE TITLE GROUP TO THE DETERMINATION AREA

16    In relation to the Kowanyama People #3 identified parcels determination, the applicant submitted that the connection of the Kowanyama People to this determination area is supported by inferences that arise from the Kowanyama determination. The State also supported this submission and submitted that it had satisfied itself that there is a credible basis to enter the proposed consent determination in the terms of the Kowanyama People #3 identified parcels s 87A agreement. I accept those submissions.

17    As with the determination made on 11 July 2024 in Kowanyama People #2 (See: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 26) (Kowanyama People #2 determination) [2024] FCA 742), the applicant and State note that the group description proposed for the Kowanyama People #3 determination is more extensive in its reference to apical ancestors than those contained in previous determinations in favour of the Kowanyama People made to date. Those apical ancestors are Bonbatable, Cecil (brother of Kangaroo), Dr Dick, Possensnek, Lily Goatboy (sibling of George Black), Moses and Nellie Highbury (Patterson).

18    Both the applicant and the State submit that the addition of those apical ancestors has been agreed on the basis of further research that has been undertaken since the earlier determinations and the further material that has been provided to the State supports those changes. The applicant submits that the more extensive group description is justified by the expert opinion of Ms Kate Waters. I accept the submissions of the State and the applicant.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

19    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.

20    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.

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

22    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

23    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

24    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.

25    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

26    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.

27    In relation to the eight determinations, I am satisfied all parties have adopted a methodical and careful approach to group description, boundary description and resolution of boundary disputes, connection and tenure, including for the Kowanyama #3 determination. The respective group members have had carefully planned opportunities to participate in decision-making about the proposed s 87A agreements, and especially about the boundary and group descriptions. Group members have been well supported to participate, if they chose to do so. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests.

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

NOMINATION OF A PRESCRIBED BODY CORPORATE

29    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.

30    In relation to the Kowanyama People #3 determination, the Kowanyama People resolved to nominate the Abm Elgoring Ambung Aboriginal Corporation RNTBC (ICN 7163) to act as an agent prescribed body corporate for the Kowanyama #3 identified parcels determination pursuant to s 57(2) of the Native Title Act.

THE STATE OF QUEENSLAND AS A RESPONDENT

31    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

32    Although this determination is relatively small in terms of the total area covered, these parcels include non-exclusive and exclusive possession native title over parcels within a township. These determinations have had tenure or other challenges associated with them, but the recognition of native title in these parcels assists in continuing the recognition of all of the native title of the Kowanyama People. The Court recognises that resolving tenure issues over relatively small parcels can take time and significant work and resources. The Court is grateful to the work of the parties and their legal representatives – this is another important step in finalisation of the Cape York United #1 claim.

Associate:

Dated:    11 July 2024

SCHEDULE OF PARTIES