FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 31) (Southern Kaantju #2 determination) [2024] FCA 747

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 4 are areas where native title has been wholly extinguished.

B.    The Southern Kaantju People were determined to hold native title in the areas surrounding this Determination Area on 5 July 2022 in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771 (the Southern Kaantju #1 Determination).

C.    The area formerly described as Lot 12 on SP171860 was excluded from the Southern Kaantju #1 Determination to allow the State and the Applicant further time to negotiate an indigenous land use agreement to resolve a tenure issue.

D.    The Southern Kaantju People Biosecurity Centre Indigenous Land Use Agreement (QI2023/005) (the ILUA) was registered on the Register of Indigenous Land Use Agreements on 9 February 2024.

E.    As part of the ILUA, it was agreed that former Lot 12 on SP171860 would be re-surveyed. The area formerly described as Lot 12 on SP171860 now forms part of a larger area described as Lot 1 on SP337297, which also includes the adjacent area formerly described as Lot 11 on SP171860 and an additional area of closed road. As part of that re-survey process, SP337297 creates a new area of road (which previously formed part of Lot 12 on SP171860).

F.    The parties now seek a determination of native title over the area formerly described Lot 12 on SP171860 that was excluded from the Southern Kaantju #1 determination. That excluded area is now described as:

a.    that part of Lot 1 on SP337297 described as former Lot 12 on SP171860 excluding an area of closed road delineated by stations 52-53-54-55-52 on SP337297; and

b.    an area of road identified as road sections delineated by stations 50-51-52-50 on SP337297 which previously formed part of Lot 12 on SP171860.

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 proceeding 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 maps attached to Schedule 5 to the extent those areas are not otherwise 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 Southern Kaantju 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 land and waters described in 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.    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 orders 7(b) 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 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 held in trust.

14.    The Southern Kaantju Aboriginal Corporation RNTBC (ICN: 9755), 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    vii

Schedule 2 – Other Interests in the Determination Area    viii

Schedule 3 – Description of Determination Area    xi

Schedule 4 – Areas Not Forming Part of the Determination Area    xii

Schedule 5 – Map of Determination Area    xiii

Schedule 1 – Native Title Holders

1.    The Native Title Holders are the Southern Kaantju People. The Southern Kaantju People are those Aboriginal persons who are descended by birth, or by adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Southern Kaantju group, from one or more of the following apical ancestors:

(a)    Jinny (Tayaqobi) Archer (mother of Lucy Hudson);

(b)    Charlie Attack Creek;

(c)    Father of Charlie Bezai;

(d)    Tommy Binan (aka Harry Banana/Barnard);

(e)    Billy Boyle (spouse of Maggie Bezai);

(f)    Butt (aka Dick Butt aka Ambrose Butt);

(g)    Peter Creek Senior;

(h)    Johnny Ilnkay and Old Man Romeo (siblings);

(i)    Jack Matissey (aka Jack Maddison/Matheson);

(j)    Tom Platt;

(k)    Rosie (Thaypanmunu);

(l)    Father of Jack Shephard;

(m)    Takata and his brother Puuchanu;

(n)    Jack Williamson;

(o)    Friday Wilson;

(p)    Willie Alf Young;

(q)    Jimmy Ross and Lily/Mily; or

(r)    Alick Pitt (Baragunyinyu).

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 Southern Kaantju People Biosecurity Centre ILUA (QI2023/005) registered on the Register of Indigenous Land Use Agreements on 9 February 2024.

2.    The rights and interests of Cook 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:

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

(iv)    the 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 2(a), (b) and (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred on in this paragraph 2 and paragraph 3 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 2(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.

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

4.    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.

5.    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).

6.    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 and depicted in the maps in Schedule 5, to the extent those areas not otherwise excluded by the terms of Schedule 4.

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

Schedule 4 – 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 3.

1.    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).

2.    Those land and waters within the Determination Area 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.

3.    Specifically, and to avoid any doubt, the land and waters described in paragraph (2)(b) above includes that part of Lot 1 on SP337297 identified as an area of closed road and delineated by stations 52-53-54-55-52 on SP337297.

Schedule 5 – Map of Determination Area

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    This determination recognises the native title of the Southern Kaantju people in relation to an area known as the ‘Cape York Biosecurity Centre ILUA parcel’ that was excluded from their existing determination made in this proceeding in July 2022, Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771. This Southern Kaantju #2 determination, as the parties refer to it, 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.

2    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’. This determination was eventually aligned with the Corrigan Report Area timetable after it was excluded from the original Southern Kaantju determination, in order for the applicant and the State to negotiate an Indigenous Land Use Agreement (ILUA) for the parcel.

3    The majority of the Southern Kaantju People’s country was the subject of the 2022 Southern Kaantju determination. This determination relates to a parcel that is entirely within the external boundaries of that earlier determination which has subsequently become subject to the Southern Kaantju Biosecurity ILUA (QI2023/005).

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 application for this particular determination was supported by a set of submissions filed by the applicant on 3 June 2024. 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. First, an affidavit of Ms Kirstin Donlevy Malyon affirmed on 3 June 2024 (2024 Malyon affidavit). Second, 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 applicant also relied on an affidavit of Mr Parkinson Wirrick affirmed on 2 June 2022 (2022 Wirrick 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 describes the way in which the Southern Kaantju #2 s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Southern Kaantju Aboriginal Corporation RNTBC (ICN 9755) was nominated as the prescribed body corporate (PBC) for the Southern Kaantju #2 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 Southern Kaantju #2 determination, the applicant relied on the following material filed in support of the previous Southern Kaantju determination to demonstrate there was 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)    the expert report by Dr Natalie Kwok entitled “Northern Central and Princess Charlotte Bay Region” filed on 16 November 2017;

(b)    the amended expert report of Ms Kate Waters dated 5 March 2018 and filed on 6 March 2018;

(c)    the supplementary expert report by Dr Kwok dated April 2019;

(d)    the witness statement of Allan Francis Creek dated 12 March 2019, and annexed to the 2022 Wirrick affidavit;

(e)    the witness statement of Amos Hobson dated 4 March 2019, and annexed to an earlier affidavit of Mr Wirrick, which was affirmed and filed on 22 October 2021 (the 2021 Wirrick affidavit);

(f)    the apical report of Ms Waters regarding Charlie Bezai, dated 14 December 2020 and annexed to the 2021 Wirrick affidavit;

(g)    the apical report of Ms Waters regarding Alick Pitt, dated 6 July 2021 and annexed to the 2022 Wirrick affidavit;

(h)    the apical report of Ms Waters regarding Jinny Tayaqobi Archer, dated 14 March 2022 and annexed to the 2022 Wirrick affidavit;

(i)    the apical report of Ms Waters regarding Johnny Ilnkay, dated 14 March 2022 and annexed to the 2022 Wirrick affidavit;

(j)    the apical report of Ms Waters regarding Jack Shephard, dated 14 March 2022 and annexed to the 2022 Wirrick affidavit; and

(k)    the apical report of Ms Waters regarding Mother of Jack Shephard, dated 16 March 2022 and annexed to the 2022 Wirrick affidavit.

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 Southern Kaantju #2 section 87A agreement

11    Like the previous and completed s 87A processes in this proceeding, there were two decision-making processes for Southern Kaantju country which needed to involve landholding groups: the process to settle boundaries between the Southern Kaantju People and their neighbours; and the process to settle group composition, by identification of apical ancestors.

12    The Boundary Identification Negotiation and Mediation or ‘BINM’ process is described in the Southern Kaantju determination at [15]-[21]. The group composition process was not relevant to this parcel.

13    Ms Malyon deposes in her 2024 affidavit that Ms Michelle Cioffi of the CYLC undertook pre-engagement in April 2022 with members of the Southern Kaantju native title group regarding the excising of the Cape York Biosecurity ILUA parcel from the (then proposed) Southern Kaantju determination of July 2022. Pre-engagement continued through to September 2022. A pre-authorisation meeting was held on 19 October 2022 in relation to the proposed determination over the Cape York Biosecurity Centre ILUA parcel, the proposed ILUA, and the Cape York United #1 claim.

14    The Southern Kaantju #2 authorisation meeting was conducted on 24 January 2023. At that meeting, the group considered the terms of the Southern Kaantju #2 s 87A agreement, and directed the applicant to enter into that agreement. The group also voted in favour of the ILUA, which was executed by the parties with an execution date of 14 August 2023. The Southern Kaantju People Biosecurity Centre ILUA was registered on the Register of Indigenous Land Use Agreements on 9 February 2024.

15    The direction to the applicant to enter into the s 87A agreement brings me to the question of the authorisation of the applicant to enter into separate s 87A agreements for various parts of country covered by the Cape York United #1 claim.

The authorisation of the Cape York United #1 applicant

16    Like its authority to enter into the Southern Kaantju s 87A agreement, the applicant’s authority to enter into the Southern Kaantju #2 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]. See also the Southern Kaantju determination at [23]-[26]. 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.

17    Nevertheless, in Kuuku Ya’u determination at [38]-[50] and Uutaalnganu determination at [36]-[48], I explained why I considered it also appropriate to make orders under s 84D(4) of the Native Title Act to deal with any uncertainty arising from differences between the claim group description in the original Cape York United #1 application and those in the proposed s 87A determinations at a more local level, in light of the change in the way the claim was proceeding and the re-authorisation process.

18    Those orders were made under s 84D(4) out of an abundance of caution and to avoid any doubt about the validity of the s 87A determinations. At [50] in Kuuku Ya’u determination and [48] in Uutaalnganu determination, I said:

It is plainly in the interests of the administration of justice to do so, in circumstances where the overall Cape York United #1 claim is gargantuan, and has already consumed seven years’ worth of resources, mostly sourced from public funds. Substantial, dedicated and methodical efforts have been made to comply with the requirements of the Native Title Act in each step along the way to these first two determinations. Despite significant factual and legal challenges, the two key parties have navigated a consensual path to the recognition of native title for the Kuuku Ya’u and Uutaalnganu (Night Island) groups. All other respondents have been consulted and given opportunities to participate in the process as it has progressed. They have been included in steps in the complex timetables. All consent to the Kuuku Ya’u and Uutaalnganu (Night Island) determinations. If ever there was a situation in the Court’s native title jurisdiction where a favourable exercise of discretion by the Court is appropriate to ensure resolution of a claim to which all parties agree, this is that situation.

19    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 SOUTHERN KAANTJU NATIVE TITLE GROUP TO THE DETERMINATION AREA

20    In her 2017 report, Dr Kwok describes Southern Kaantju country as in the central ranges region of Cape York, south from the Archer River to approximately around Coen. At [710] of her 2017 report, Dr Kwok states:

The Kaanju people have been repeatedly recorded as occupying a central position in the range country of Cape York Peninsula, with interests extending from the headwaters of the Pascoe in the north to the upper reaches of the Archer River system in the vicinity of Coen. The Northern Kaanju [Koko I’o] and Southern Kaanju divide, reflecting differences in perspective on the part of their neighbours and minor dialectal distinctions, have been flagged since at least the late 1920s. The broad extent with which the name is associated and the fact that Thomson recorded the name’s meaning as spear thrower handle, leads me to suspect that the name Kaanju may have had a relatively general application to upland peoples in the region, although it also functions as a language name.

21    In the Southern Kaantju determination at [27] to [39], 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 Southern Kaantju People. The Court accepted that material was sufficient for the determination sought. These findings are applicable to the Cape York Biosecurity Centre ILUA parcel. The material supporting the group description for the Southern Kaantju #2 determination can be accepted on the same basis: see my reasons in the Southern Kaantju determination at [32].

THE APPLICABLE REQUIREMENTS OF SECTION 87A

22    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.

23    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.

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

25    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

26    As the applicant sets out at [37]-[42] 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

27    For the reasons set out at [43]-[48] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

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

29    In the Southern Kaantju determination at [47] to [49], I set out my approach to the question of appropriateness. In concluding the orders sought over the Cape York Biosecurity Centre ILUA parcel are appropriate, I adopt and apply that reasoning here, including the reasoning about the position adopted by the State of Queensland.

NOMINATION OF A PRESCRIBED BODY CORPORATE

30    A separate PBC has been nominated under s 56 or s 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 to hold the native title for this determination is the Southern Kaantju Aboriginal Corporation RNTBC (ICN: 9755).

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 made on the papers, the conclusion of an ILUA over this country represents an important milestone for the Southern Kaantju people. 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.

33    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