FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 32) (Central West Wik People and Northern Kaanju People overlap area—Part of Lot 2 on SP140870 determination) [2024] FCA 1360

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 native title rights and interests held by the Northern Kaanju People over an area in central Cape York Peninsula were recognised in a determination made on 5 July 2022 in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770 (the Northern Kaanju People Determination).

B.    The native title rights and interests held by the Central West Wik People over an area in central Cape York Peninsula were recognised in a determination made on 6 July 2023 in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination) [2023] FCA 733 (the Central West Wik People Determination).

C.    This Determination relates to an area of land, being part of Lot 2 on SP140870 (also known as being part of the Piccaninny Plains property), which is adjacent to both the Northern Kaanju People Determination and the Central West Wik People Determination.

D.    In this Determination Area, the native title of the Northern Kaanju People and the separate and distinct native title of the Central West Wik People, wholly overlap geographically.

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 relation to the whole of the Determination Area described in Schedule 4 and is held by the Northern Kaanju People and the Central West Wik People respectively.

6.    The Northern Kaanju People Native Title is held by, and only by, the Northern Kaanju People.

7.    The Central West Wik People Native Title is held by, and only by, the Central West Wik People.

8.    Subject to orders 9, 10, and 11 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, respectively, Northern Kaanju People and Central West Wik People within the area;

(g)    maintain places of importance and areas of significance to, respectively, the Northern Kaanju People and Central West Wik People under their respective traditional laws and customs, 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

(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 Northern Kaanju People or Central West Wik People, are:

(i)    Spouses of Northern Kaanju People or Central West Wik People;

(ii)    people who are members of the immediate family of a Spouse of Northern Kaanju People or Central West Wik People; or

(iii)    people reasonably required by the Northern Kaanju People or Central West Wik People under their respective traditional laws and customs 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, respectively, the Northern Kaanju People and the Central West Wik People.

10.    The native title rights and interests referred to in order 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 order 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 Northern Kaanju Native Title is held in trust by the Northern Kaanju Aboriginal Corporation (ICN: 9756).

15.    The Northern Kaanju Aboriginal Corporation (ICN: 9756), 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,

in relation to the Northern Kaanju Native Title.

16.    The Central West Wik Native Title is not held in trust.

17.    The Ngan Aak-Kunch Aboriginal Corporation RNTBC (ICN: 4097), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of s 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,

in relation to the Central West Wik Native Title.

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    ix

Schedule 2 – Other Interests in the Determination Area    xi

Schedule 3 – External Boundary    xv

Schedule 4 – Description of Determination Area    xvi

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

Schedule 6 – Map of Determination Area     xix

Schedule 1 – Native Title Holders

1.    The Central West Wik People are:

(a)    Brian Ross; and

(b)    those Aboriginal persons who are descended by birth, or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Central West Wik People, from one or more of the following apical ancestors:

(i)    Peempa Thum-Kalban Ku’ekka;

(ii)    Daojan (Koondumbin);

(iii)    Jimmy (father of Polly Perkins and Connie Tartempenmiya);

(iv)    Father of Short Charlie and Long Charlie (Chaalongk);

(v)    George Brown;

(vi)    Chininga;

(vii)    Ko’owata;

(viii)    Mosey;

(ix)    Dhaabangchiy;

(x)    Jimmy Lawrence;

(xi)    Palpal (Quinkan) Old Blowdy;

(xii)    Warnkoola Ancestor (father of Nellie ‘Eempen’ Warnkoola, Rupert Kepple Warnkoola and Charlie Warnkoola); or

(xiii)    Kepple Ancestor (father of Gilbert Kepple and Maamus Kepple).

2.    The Northern Kaanju 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 Northern Kaanju People, from one or more of the following apical ancestors:

(a)    Billy and Annie/Alice (parents of George Lefthand Moreton);

(b)    Charlie Boko;

(c)    Billy Boyd;

(d)    Nancy Boyd (spouse of Monkey Boyd);

(e)    Father of Billy Chungo;

(f)    Billy George and Jenny (parents of Annie Thompson/Small);

(g)    Henry (father of Annie Densley and Joe Sullivan);

(h)    Jack (father of Nellie Creedy aka Nellie Fox and Mary Ann Malandadji aka Mary Ann Johnson);

(i)    Annie King (aka Long Annie) and her brother Roy Stevens;

(j)    Paddy King (spouse of Annie King);

(k)    Tommy Larsen;

(l)    George Mamoose (aka George Mamus);

(m)    Old Lady Mapoon (Mapun);

(n)    Mary Ann (mother of Trixie Prior) and her sister Rosie (Percy/Docherty);

(o)    Mickie and Nelly (parents of Annie Mullet);

(p)    George Moreton Snr;

(q)    Big Johnny (Nguulpam);

(r)    Annie Night Island;

(s)    Charlie James (Flathead) Pascoe;

(t)    Polly Roberson;

(u)    King Bob Robertson;

(v)    Jack (aka Johnny Rocky/Rockeby) and Jinnie/Jennie (parents of Old Lady Rosie);

(w)    Jimmy Saturday and Dolly (parents of Monkey Boyd);

(x)    Father of Billy Wenlock (Ukunchal); or

(y)    Ammanbunga (mother of Victoria John).

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 PNG Gas Pipeline ILUA (QI2006/043) registered on the Register of Indigenous Land Use Agreements.

2.    The rights and interests pursuant to the rolling term lease (PH 0/219193) granted over that part of Lot 2 on SP140870 (also known as Piccaninny Plains) held by the Australian Wildlife Conservancy (ACN 068 572 556) and The Tony and Lisette Lewis Settlement Pty. Limited (ACN 003 632 344) that falls within the External Boundary.

3.    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 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; and

(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 3(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 3 and paragraph 4 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 3(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.

4.    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.

5.    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.

6.    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:

7.    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.

8.    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.

9.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Schedule 3 – External Boundary

The area of land and waters:

Commencing at the intersection of Nettle Creek and an unnamed tributary at Longitude 142.775311° East, Latitude 13.162993° South; then easterly to Longitude 142.801580° East, Latitude 13.162352° South; then northerly to Longitude 142.802139° East, Latitude 13.113875° South; then westerly to a point adjacent to Plain Creek at Longitude 142.753961° East, Latitude 13.113430° South; then southerly to Longitude 142.755182° East, Latitude 13.150363° South; then south-easterly to the point of commencement.

(All Subject to Survey)

Data Reference and source

Watercourse lines sourced from Department of Resources, Qld (published 5th October 2022).

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 the Determination Area map in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

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.

4.    Those land and waters within the External Boundary 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.

Schedule 6 – Map of Determination Area

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    The determination area is part of the pastoral lease known to this point in this proceeding as Picaninny Plains, a name which may carry hurtful connotations for First Nations People. The determination area comprises land around the site of the station homestead, roughly 26 square kilometres. It is formally known as Part of Lot 2 on SP140870. There are other proprietary interests in the area, including those held by Cook Shire Council (the relevant local government) and the relevant lessees of the land, the Tony and Lisette Lewis Settlement Pty Ltd and the Australian Wildlife Conservancy.

2    By its orders today, the Court recognises that each of the Northern Kaanju People and the Central West Wik People hold overlapping, but separate and distinct, native title interests in the determination area. This determination has been made on the papers, with the parties’ agreement.

3    This is the seventh tranche of consent determinations in the Cape York United #1 claim proceeding. The determination area forms part of the geographic region that has been described by the parties and in the Court’s case management timetables as the ‘Northern Kaanju, Southern Kaantju, Ayapathu and Umpila Native Title Groups Timetable Area’—or the ‘Kwok Part B Timetable Area’, a reference to Dr Natalie Kwok, the anthropologist who has undertaken a lot of work in preparation for the determinations in this region.

4    In the Cape York United #1 claim proceeding, the majority of the Northern Kaanju People’s country was the subject of the first Northern Kaanju determination on 5 July 2022: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770. Similarly, the majority of the Central West Wik People’s country was the subject of the first Central West Wik determination on 6 July 2023: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination) [2023] FCA 733.

5    The determination area is surrounded by the areas that were determined in favour of the Northern Kaanju People in the first Northern Kaanju determination and the Central West Wik People in the first Central West Wik determination.

6    The Court is satisfied that all of 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

7    The application for this particular determination was supported by a set of submissions filed by the applicant on 24 October 2024. The State also filed submissions on 1 November 2024. The Court has been assisted by the parties’ submissions, and the material provided.

8    The applicant relied on a number of affidavits. First, an affidavit of Ms Michelle Amanda Cioffi affirmed on 23 October 2024 (2024 Cioffi affidavit). Second, paragraphs [63] to [72] of an affidavit filed earlier in this proceeding by Ms Kirstin Donlevy Malyon on 2 June 2022 regarding the process by which the Northern Kaanju Native Title Group agreed to the s 87A agreement on terms with which the proposed determination area is consistent (2022 Malyon affidavit). Third, paragraphs [5] to [30] of an affidavit filed earlier in this proceeding by Ms Malyon on 27 October 2021 regarding the re-authorisation process undertaken by the applicant in the period from April to September 2021 (2021 Malyon affidavit). The applicant also relied on the affidavits of Mr Parkinson Wirrick filed on 22 October 2021 (2021 Wirrick affidavit) and 2 June 2022 (2022 Wirrick affidavit).

9    Ms Cioffi is the Principal Legal Officer at the Cape York Land Council, and has had carriage of the Cape York United #1 claim since September 2024. Ms Cioffi refers to the 2022 Malyon affidavit which describes the way in which the s 87A agreement was approved, including pre-authorisation and authorisation meetings in 2022. The 2022 Malyon affidavit deposes to how the Northern Kaanju Aboriginal Corporation RNTBC (ICN 9756) was nominated as the prescribed body corporate (PBC) for the determination area in trust for the Northern Kaanju Native Title Group, even though there could not be a determination for the determination area at that time. Ms Malyon annexes to her affidavit the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area.

10    The proposed determination in favour of the Central West Wik Native Title Group had not progressed at exactly the same time, but rather a little later and this group did not have its principal country recognised until July 2023.

11    For this determination area, surrounded by the country of the two groups, the terms of s 68 of the Native Title Act meant there could only be one determination of native title for an area. Practically speaking, that meant the Northern Kaanju People needed to wait until after the principal determination in favour of the Central West Wik People in July 2023, and then both groups had to await the finalisation of a specific s 87A agreement about this determination area. The authorisation process for the Central West Wik Native Title Group was planned for early 2024, but was delayed by sorry business.

12    The 2024 Cioffi affidavit describes the way in which the s 87A agreement was ultimately approved, including pre-authorisation and authorisation meetings for each group. Ms Cioffi deposes to how the Ngan Aak-Kunch Aboriginal Corporation RNTBC (ICN 4097) was nominated as the PBC for the determination area for the Central West Wik Native Title Group. 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. As the State submitted at [11] of its submissions:

The notifications for the Northern Kaanju Authorisation Meeting identified on the map that the Proposed Determination Area was to be shared between the two groups and the notices for the Central West Wik Authorisation Meeting clearly identified the Proposed Determination Area was to involve separate and distinct native titles with the Northern Kaanju People which geographically overlapped.

13    In relation to the recognition of the Northern Kaanju People’s native title in the determination area, the applicant relied on the following material filed in support of the first Northern Kaanju 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 Kwok entitled “Northern Central and Princess Charlotte Bay Region” filed 16 November 2017;

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

(c)    the supplementary expert report by Dr Kwok dated April 2019, and annexed to the 2022 Wirrick affidavit;

(d)    the witness statement of Rodney Daniel Accoom dated 12 March 2019, and annexed to the 2022 Wirrick affidavit;

(e)    the witness statement of Robert Nelson dated 28 March 2019, and annexed to the 2022 Wirrick affidavit;

(f)    the apical report of Ms Waters dated 15 May 2020 regarding Billy Chungo, and annexed to the 2021 Wirrick affidavit;

(g)    the apical report of Ms Waters dated 22 May 2020 regarding Dick York, and annexed to the 2022 Wirrick affidavit;

(h)    the apical report of Ms Waters dated 16 April 2021 regarding Billy Wenlock (Ukunchal), and annexed to the 2021 Wirrick affidavit;

(i)    the apical report of Ms Waters dated 6 August 2021 regarding John A-chichin-ga (father of Dick York), and annexed to the 2022 Wirrick affidavit;

(j)    the apical report of Ms Waters dated 9 August 2021 regarding Peter Boyd and Polly Kepple, and annexed to the 2022 Wirrick affidavit;

(k)    the additional apical report of Ms Waters dated 25 January 2022 regarding Peter Boyd and Polly Kepple, and annexed to the 2022 Wirrick affidavit;

(l)    the report of Ms Waters dated 1 June 2022 concerning the amended group description for Northern Kaanju, and annexed to the 2022 Malyon affidavit; and

(m)    the report of Ms Waters dated 22 May 2022, entitled “Response on Dick York in relation to the Kwok Report Area”, and annexed to the 2022 Malyon affidavit.

14    In relation to the recognition of the Central West Wik People’s native title in the determination area, the applicant relied on the following material filed in support of the first Central West Wik 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 Frank McKeown entitled “Anthropological Report” filed on 23 January 2018;

(b)    Ms Waters’ 2018 report;

(c)    the supplementary expert report of Dr McKeown dated 26 March 2019, and annexed to an affidavit of Mr Wirrick filed on 9 June 2023 (2023 Wirrick affidavit);

(d)    the witness statement of Robert Nelson dated 28 March 2019, and annexed to the 2022 Wirrick affidavit;

(e)    the affidavit of Douglas Ahlers dated 4 April 2019, and annexed to the 2022 Wirrick affidavit;

(f)    the witness statement of Willie Lawrence dated 8 April 2019, and annexed to the 2023 Wirrick affidavit;

(g)    the apical report of Ms Waters regarding Jimmy Lawrence dated 29 January 2021, and annexed to the 2023 Wirrick affidavit;

(h)    the apical report of Ms Waters regarding Peter Boyd and Polly Kepple dated 9 August 2021, and annexed to the 2022 Wirrick affidavit;

(i)    the additional apical report of Ms Waters regarding Peter Boyd and Polly Kepple dated 25 January 2022, and annexed to the 2022 Wirrick affidavit;

(j)    the apical report of Ms Waters regarding Toby Ross dated 10 August 2021, and annexed to the 2023 Wirrick affidavit;

(k)    the additional information report by Ms Waters regarding Toby Ross dated 20 August 2021, and annexed to the 2023 Wirrick affidavit;

(l)    the further report of Dr Kevin Murphy and Ms Waters dated 23 February 2023, and annexed to the 2023 Wirrick affidavit; and

(m)    the report of Dr Murphy and Mr Mark Winters concerning the proposed Central West Wik native title determination group description dated 13 June 2023 and annexed to Mr Wirrick’s affidavit filed on 14 June 2023.

15    The State relied on the State’s various submissions filed on:

(a)    10 June 2022 in respect of the first Northern Kaanju determination;

(b)    15 June 2023 in respect of the first Central West Wik determination; and

(c)    12 November 2021 in respect of Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464.

16    Additionally, the State relied on the 2021 Malyon affidavit.

PROCEDURAL HISTORY

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

18    The complex procedural history and nature of the Cape York United #1 claim proceeding is summarised in the Court’s reasons for the Kuuku Ya’u determination at [3], [12]–[19], [30]–[37] and in 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 24 further consent determinations made in this proceeding prior to this determination, the most recent of which are the eight determinations made in July 2024. 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 proceeding.

The authorisation of the Cape York United #1 applicant

19    The applicant’s general authority to enter into the s 87A agreement for the determination area stems from the re-authorisation process which occurred in the Cape York United #1 claim proceeding between April and September 2021. This process is described in the 2021 Malyon affidavit, and the Court described and endorsed it in the Kuuku Ya’u determination at [30]–[37] and the Uutaalnganu determination at [28]–[35].

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

21    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 the Kuuku Ya’u determination and [48] in the 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.

22    Similar orders are sought in this determination. The State agreed with this proposal. I adopt the above reasons in this determination. For the reasons given in the extract above, I continue to consider such orders are appropriate.

AUTHORISATION FOR THE DETERMINATION AREA

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

24    The Boundary Identification Negotiation and Mediation is described in the first Northern Kaanju determination at [19]–[25]. The group composition process was not relevant to the determination area.

25    The BINM is described in the first Central West Wik determination at [20]–[33]. The group composition process was not relevant to the determination area.

26    The applicant makes the following submissions at [31] of its written submissions, which I accept:

The Northern Kaanju Native Title Group meeting on 20 April 2022, and the Central West Wik Native Title Group meeting on 19 June 2024, considered and approved terms of s.87A agreements which would recognise both of them as native title holders for the Proposed Determination Area. It may be inferred from this consensus for mutual recognition, the fact that the Proposed Determination Area is otherwise entirely surrounded by the First Northern Kaanju Determination and the First Central West Wik Determination, and the fact that no respondent opposes the proposed Part of Lot 2 on SP140870 Determination, that the boundaries and group descriptions set out in the Proposed Determination Area are appropriate.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

27    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.

28    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 Native Title 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.

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

30    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

31    As the applicant sets out at [34]–[40] of its submissions, which the State adopts, each of the pre-requisites in s 87A(1) is satisfied. The s 87A agreement has been signed by the requisite parties to the proceeding, after appropriate notification.

Sub-section 87A(4)(a): orders within power

32    For the reasons set out at [41]–[46] of the applicant’s submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court.

33    The Cape York United #1 application is valid and there is no extant determination of native title in relation to the determination area. 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 this determination that would otherwise require orders to be made under s 67(1) of the Native Title Act. I am satisfied that the form of these determinations complies with s 94A and s 225 of the Native Title Act and, for the reasons that follow, the requirements of s 87A of the Native Title Act are otherwise satisfied.

Sub-section 87A(4)(b): appropriate to make the orders sought

34    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 determination and the Uutaalnganu determination, I adopt and apply the observations I made in Drury and Taylor here.

35    In relation to this determination, I am satisfied all parties have continued the methodical and careful approach to all relevant issues necessary to reach agreement, including in relation to other interests in the determination area. The respective group members have had carefully planned opportunities to participate in decision-making about the proposed s 87A agreement, and 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.

36    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.

37    In relation to this determination, the State explains in its written submissions at [12]–[13] why there was a credible basis for it to agree to the recognition of native title that occurs through the Court’s orders in relation to this determination area. Of course, in this particular case, the credible basis derives in large part from the first Northern Kaanju determination and first Central West Wik determination.

38    The role of the State of Queensland in the detailed step-by-step process in the Cape York United #1 claim proceeding has involved considerable human and financial resources, and the Court acknowledges its continued dedication to assisting group members to secure determinations of native title wherever possible. Other respondents to the Cape York United #1 claim proceeding have also derived considerable benefit from the contribution by the State, which has relieved those respondents of a great deal of work.

NOMINATION OF PRESCRIBED BODIES CORPORATE

39    Two separate PBCs have been nominated under ss 56 or 57 of the Native Title Act for the determination area.

40    NKAC was nominated by the Northern Kaanju Native Title Group as trustee and has provided its consent to nomination. NAK was nominated by the Central West Wik Native Title Group as agent and has provided its consent to nomination.

41    The nomination and determination of separate PBCs where there are overlapping native titles is permissible. In Drury at [72] – [73], Colvin J and I said:

72     The outcome of two PBCs over the same land is a necessary consequence of an adjudication that there are overlapping native titles that exist for the same land. As we have noted, the possibility that there may be overlapping native The titles is a matter that is now well established and the reserved questions assume that two such titles have been identified and are to be determined in the present case.

73    The consequence is that each overall determination of the existence of native title is a determination for which the PBC nomination process must be followed. Whether by consent or after a final hearing, where there is an adjudication by the Court in relation to separate applications covering (in whole or part) the same land or waters or both, there may be more than one native title that is adjudicated, to exist each to be reflected in an overall determination of native title. The Court's decision or adjudication is not itself the determination. The Court's decision or adjudication is reflected in its orders, which may - as we have explained - involve more than one overall determination of native title over the same land or waters. Therefore, the appointment of separate PBCs for each overlapping native title the subject of an overall determination does not result in more than one PBC for the same determination.

42    In these circumstances, the Court is satisfied that the nomination of each of the PBCs is appropriate.

CONCLUSION

43    Although this determination is made on the papers, and relates to a small area in the context of the Cape York United #1 claim proceeding as a whole, the s 87A agreement has taken some time to negotiate and be approved and the achievement in reaching this outcome is still important. This determination represents a good example of co-operative agreement making that has marked out the process by all parties in the Cape York United #1 claim proceeding.

44    The Court thanks Judicial Registrar Simon Grant for his continued assistance to the Court and the parties through the stages of this proceeding. The dedicated staff in the Court’s native title team, and in chambers, who work behind the scenes in relation to mediations, hearings, travel, communications and preparation of orders and reasons should also be thanked. This work is just as vital to the outcome today as any of the more visible work a Judge might do.

45    Finally, this determination relies on affidavits affirmed by Ms Malyon, the former Principal Legal Officer of the CYLC. While Ms Malyon is no longer with the CYLC, the Court wishes to acknowledge her tireless and high quality work in assisting the applicant, its counsel and broader Cape York United #1 claim group members, as well as her highly professional and dedicated work with the State and other respondent parties in this proceeding.

Associate:

Dated:    25 November 2024

SCHEDULE OF PARTIES