FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 30) (Kowanyama People, Kunjen Olkol and Olkola jointly held area determination) [2024] FCA 746

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.    This native title determination comprises country jointly held by the Kowanyama People, the Olkola People and the Kunjen Olkol People.

B.    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.    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 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.

5.    Native Title exists in the Determination Area.

6.    The native title is held jointly by the Kowanyama People, the Kunjen Olkol People and the Olkola People described in Schedule 1 (the Native Title Holders).

7.    Subject to orders 8, 9, and 10 below, the nature and extent of the native title rights and interests in relation to the Determination Area 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.

8.    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.

9.    The native title rights and interests referred to in order 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 

10.    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). 

11.    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). 

12.    The relationship between the native title rights and interests described in order 7 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:

13.    The native title is not to be held on trust.

14.    The Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN: 10247), 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    vii

Schedule 2 – Other Interests in the Determination Area    xii

Schedule 3 – External Boundary    xv

Schedule 4 – Description of Determination Area    xvii

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

Schedule 6 – Map of Determination Area    xix

Schedule 1 – Native Title Holders

1.    The Native Title Holders are, jointly, the Kowanyama People, the Kunjen Olkol People and the Olkola People.

2.    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).

3.    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.

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

(a)    Willie Johnson (aka Jack Johnson);

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

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

(d)    Old Man Barney Dockerty;

(e)    Mosquito Upton;

(f)    Long Jim Coleman;

(g)    Johnson Upton;

(h)    Charlie Gunnawarra;

(i)    Jimmy Long (aka Brasso/Basil);

(j)    Polly (spouse of Mustard);

(k)    Mustard;

(l)    Nellie Musgrave;

(m)    Bally (father of Lucy Long);

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

(o)    Bally Upton;

(p)    Ngoingum;

(q)    Therese Upton aka Awundayi;

(r)    Old Man Boxer;

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

(t)    Jack Spratt;

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

(v)    Frank Yam;

(w)    Charlie Sugarbag and Charlie Crocodile;

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

(y)    Sandy (spouse of Nellie/Lily);

(z)    Georgina Lee Cheu Snr;

(aa)    Paddy Cook;

(bb)    George Dockerty (spouse of Rosie);

(cc)    Rosie (spouse of George Dockerty);

(dd)    Charlie (father of Linda Bob);

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

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

Schedule 2 – Other Interests in the Determination Area

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

1.    The rights and interests of 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 1(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 1 and paragraph 3 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 1(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.

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

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

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

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

(b)    the Fisheries Act 1994 (Qld);

(c)    the Land Act 1994 (Qld);

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

(e)    the Forestry Act 1959 (Qld);

(f)    the Water Act 2000 (Qld);

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

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

(i)    the Planning Act 2016 (Qld);

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

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

5.    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.

6.    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.

7.    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 junction of the centrelines of Alice River and Crosbie Creek, then northerly and south easterly until the intersection with the southern bank of Alice River, also being the northern boundary of Lot 13 on CTH3 (Koolatah) and Kowanyama People Part B Native Title Determination (QCD2012/016) at Longitude 142.677962° East, passing through the following coordinate points:

then generally north westerly along the southern bank of the Alice River and the northern boundaries of that lot and determination until a point at Longitude 142.418080° East; then northerly a short distance to 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 table immediately below, and depicted in light blue in the maps in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

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 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    This determination recognises the jointly held native title of the Kowanyama People, Kunjen Olkol and Olkola native title groups in relation to an area adjoining the Alice River. The Kowanyama People, Kunjen Olkol and Olkola jointly held area encompasses 13,009.37 hectares of non-exclusive native title.

2    The determination is being made on the papers, broadly concurrently with a number of determinations recognising the native title of the Olkola People, Kowanyama People and Kunjen Olkol People. Each determination arises within the Cape York United #1 proceeding, and is part of the sixth group of determinations in this proceeding. The Court also makes a determination recognising the native title of the Southern Kaantju people in relation to an area that was excluded from their earlier determination in this proceeding.

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’.

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 this group of 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 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. 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). The State relied on an affidavit of Ms Carrie Tobler affirmed on 5 June 2024.

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, Kunjen Olkol and Olkola jointly held area s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN 10257) was nominated as the prescribed body corporate (PBC) for the Kowanyama People, Kunjen Olkol and Olkola jointly held area determination. She annexes to her affidavit the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area.

8    In relation to the Kowanyama People, Kunjen Olkol and Olkola jointly held area determination, the applicant relied on a range of material to demonstrate there was a credible basis for the connection of the Olkola, Kunjen Olkol and Kowanyama Peoples to the relevant determination areas, and to establish what material had been available to the State for the purposes of the s 87A agreements. I have canvassed that material in the individual determinations made for each of these groups.

9    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 agreement was reached between the Olkola People, Kunjen Olkol People and Kowanyama People, and any discussions with their neighbours resolved. This agreement making can be especially delicate in relation to shared country. I am satisfied the applicant and its legal representatives have ensured there was adequate material to support, in particular, the boundary and group descriptions proposed for these determinations.

PROCEDURAL HISTORY

10    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.

11    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, Kunjen Olkol and Olkola jointly held area section 87A agreement

12    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 Kowanyama People, Kunjen Olkol and Olkola native title groups and their neighbours; and the process to settle group composition, by identification of apical ancestors.

13    The Boundary Identification Negotiation and Mediation or ‘BINM’ process, and the group composition process, for these determinations is described in the individual determinations made for each of these groups.

14    The Kowanyama People authorisation meeting was conducted on 27 February 2024. The Kunjen Olkol authorisation meeting was conducted on 28 February 2024. The Olkola authorisation meeting was conducted on 29 February 2024. At those meetings, the groups considered the terms of the Kowanyama People, Kunjen Olkol and Olkola jointly held area s 87A agreement, 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

15    The applicant’s authority to enter into the Kowanyama People, Kunjen Olkol and Olkola jointly held area 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.

16    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.

17    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.

18    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, KUNJEN OLKOL AND OLKOLA NATIVE TITLE GROUP TO THE DETERMINATION AREA

19    In the individual determinations for these groups, I described the connection material put forward by the applicant and accepted by the State as providing a credible basis for the recognition of native title of the Olkola, Kowanyama People and Kunjen Olkol native title groups. Those findings are applicable to the jointly held area determinations, and I adopt those findings for this determination.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

20    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.

21    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.

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

23    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

24    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

25    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.

26    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

27    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.

28    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 People, Kunjen Olkol and Olkola jointly held area 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. For shared country, this process has been especially important, and I am satisfied it has been available to group members. 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.

29    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

30    A PBC has been nominated under s 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.

31    The native title being recognised in this determination is to be held by the Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN 10247) as the PBC for the purpose of s 57(2) of the Native Title Act. This is the same PBC nominated for the other jointly held area determinations.

THE STATE OF QUEENSLAND AS A RESPONDENT

32    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

33    Although this determination is made on the papers, together with the other determinations made in this round, it represents an important milestone for the Kowanyama People, Kunjen Olkol and Olkola native title groups. Agreement making between groups over shared country can be a challenging process. The Court congratulates the parties, their legal representatives and all those who contributed to the conclusion of this s 87A agreement, including experts, employees of the Cape York Land Council and officers in various departments of the State of Queensland.

34    The pace and complexity of consent determinations in the Cape York United #1 claim is a credit, in particular, to the Cape York United #1 applicant, the Cape York Land Council and the State of Queensland.

35    The Court also commends the work of Judicial Registrar Simon Grant in the processes that have led to the Court’s orders 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. This work is just as vital to the outcome today as any of the more visible work a Judge might do.

Associate:

Dated:    12 July 2024

SCHEDULE OF PARTIES