FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 33) (Yiithuwarra determination) [2025] FCA 1281

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.    Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park area within the External Boundary will be addressed after the matter has proceeded to determination.

B.    The Yiithuwarra People (being the proposed native title holders described in Schedule 1 of the Determination) have indicated a desire to enter into negotiations with the State of Queensland (the State) in relation to whether s 47C of the Native Title Act 1993 (Cth) would have application to any land and waters within the External Boundary.

C.    Subject to paragraph D below, the parties agree that, if agreement is reached in accordance with s 47C(1)(b) of the Native Title Act 1993 (Cth) that s 47C is applicable to a park area, the parties would not oppose an application being brought on behalf of the Yiithuwarra Aboriginal Corporation (ICN: 11765) pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to a park area within the Determination Area for which agreement is reached regarding the application of s 47C of the Native Title Act 1993 (Cth).

D.    The agreement of the parties described in paragraph C above not to oppose an application being brought to vary the Determination in relation to a park area, is subject to the Applicant and the State having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to the park area, and any other relevant matters.

E.    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:

2.    Pursuant to s 199C(1A) of the Native Title Act 1993 (Cth), the Registrar is not to remove the following indigenous land use agreements from the Register of Indigenous Land Use Agreements, at least to the extent the indigenous land use agreements fall within the External Boundary:

(a)    Seven National Parks Bama-Bi Bubu ILUA (QI2014/005);

(b)    Rinyirru (Lakefield) National Park (Cape York Peninsula Aboriginal Land) ILUA (QI2011/052); and

(c)    Sandstone Western Land Transfer ILUA (QI2016/047).

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

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

6.    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 map, the written description prevails.

7.    Native title exists in the Determination Area.

8.    The native title is held by the Yiithuwarra People described in Schedule 1 (the Native Title Holders).

9.    Subject to orders 10, 11, and 12 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are:

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

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

10.    Subject to orders 10, 11, and 12 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

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

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

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

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

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

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

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

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

(i)    hold meetings on the area;

(j)    conduct ceremonies on the area;

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

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

(i)    Spouses of Native Title Holders;

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

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

11.    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.

12.    The native title rights and interests referred to in orders 8(b) and 9 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 

13.    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). 

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

15.    The relationship between the native title rights and interests described in orders 8 and 9 and the other interests described in Schedule 2 (the Other Interests) 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:

16.    The native title is held in trust.

17.    The Yiithuwarra Aboriginal Corporation (ICN: 11765), 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     viii

Schedule 2 – Other Interests in the Determination Area     x

Schedule 3 – External Boundary    xiv

Schedule 4 – Description of Determination Area    xxix

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

Schedule 6 – Map of Determination Area    xxxiv

Schedule 1 – Native Title Holders

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

1.    Aiejene (Jimmy Robinson);

2.    Akalwaljul (father of Wondal Charlie Monaghan);

3.    Akuthirarka;

4.    Albert Barrow Point;

5.    Bessie O’Burnes;

6.    Billy (father of Dudley Bulmer);

7.    Charlie Chookie;

8.    Charlie McGreen;

9.    Charlie Tarpaulin;

10.    Dirngulu (Maggie aka Maude);

11.    Ekanjin (mother of Wondal Charlie Monaghan);

12.    Eva (wife of Barney Laura);

13.    Harry Mole;

14.    In-girr (German Harry);

15.    Jacky Red Point;

16.    Minnie aka Wawumduha (wife of Norman Arrami);

17.    Miriam Ngamu Bandir;

18.    Mother of Billy Hart;

19.    Nellie Nunggal (Yarkan);

20.    Ngamu Dhaarridyin;

21.    Ngapurrwil;

22.    Ngarungal;

23.    Odhay;

24.    Otoro;

25.    Rosie (wife of Albert Barrow Point);

26.    Rosie aka Nellie (wife of Barney Laura);

27.    Ruth Bandir (Dudur);

28.    Thalnggulu;

29.    Tharramali;

30.    Thilkwuna (Nellie Robinson);

31.    Thurralwinga (Alice Johnson);

32.    Tommy Merrilees;

33.    Wandyarriny (Charlie Lefthander);

34.    Warreygini (Kitty);

35.    Waarigan;

36.    Wathi (Billy Salt);

37.    Wilurinta;

38.    Yamburunda;

39.    Yebonini.

Schedule 2 – Other Interests in the Determination Area

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

1.    The rights and interests of the parties under the following agreements registered on the Register of Indigenous Land Use Agreements:

(a)    Seven National Parks Bama-Bi Bubu ILUA (QI2014/005);

(b)    Rinyirru (Lakefield) National Park (Cape York Peninsula Aboriginal Land) ILUA (QI2011/052); and

(c)    Sandstone Western Land Transfer ILUA (QI2016/047).

2.    The rights and interests granted or available to RTA Weipa Pty Ltd (ACN 137 266 285) (and any successors in title) under the Comalco Agreement, including, but not limited to, rights and interests in relation to the “bauxite field” (as defined in clause 1 of the Comalco Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where:

(a)    “Comalco Act” means the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld); and

(b)    “Comalco Agreement” means the agreement in Schedule 1 to the Comalco Act, including as amended in accordance with such Act.

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; and

(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:

(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).

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)    coastal waters;

(d)    stock routes;

(e)    beaches; and

(f)    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:

The boundary commences at the intersection of the mouth of Jeannie River and that river’s centreline at approximately Longitude 144.921364° East, Latitude 14.657840° South; then extends generally south westerly along the centreline of that river and generally south easterly along the main unnamed tributary of that river until its headwaters at Longitude 144.769268° East, Latitude 14.909976° South; then south easterly a short distance until the intersection with the Normanby River drainage basin at Longitude 144.769504° East, Latitude 14.910541° South; then generally north easterly, and generally easterly along that drainage basin boundary until the intersection with the south western corner of Lot 18 on SP104580 (Ngulun Land Trust), also being a point on the boundary of Lot 8 on SP252507 (Muundhi (Jack River) National Park (CYPAL); then generally easterly and generally southerly following the Muundhi (Jack River) National Park (CYPAL) boundary and the Normanby River drainage basin until the intersection with the Bridge Creek catchment watershed boundary at approximately Latitude 15.073943° South; then generally westerly, generally south westerly and generally southerly along the watershed boundary of the Bridge Creek catchment until the intersection with the northern boundary of Lot 3 on SP288847 (Ngaynggarr National Park (CYPAL)) at approximately Longitude 144.802164° East, passing through the following approximate coordinate points:

then easterly to the north eastern corner of that lot; then generally southerly along the eastern boundary of that lot until the intersection with the Bridge Creek catchment boundary once again at approximately Latitude 15.099730° South; then generally south westerly, generally westerly and generally southerly following the watershed boundary separating the southern flowing watercourses (including the Bridge Creek catchment and unnamed tributaries flowing into the upper reaches of Brown Creek) and the western flowing watercourses (unnamed watercourses flowing into the lower reaches of Brown Creek) until the intersection with the centreline of Brown Creek at approximately Longitude 144.719170° East, Latitude 15.169371° South, passing through the following approximate coordinate points:

then generally westerly along Browns Creek until the intersection with the centreline of Normanby River, also being the external boundary of the Kuku Warra Native Title Determination (QCD2023/010); then generally north westerly along the eastern external boundary of that determination; then generally northerly along the eastern external boundary of the Lama Lama People Native Determination (QCD2022/008) until the mouth of the centreline of the Normanby River at approximately Longitude 144.141159° East, Latitude 14.410328° South; then southerly until the high water mark on the eastern boundary of the Normanby River at Longitude 144.141081° East, Latitude 14.411478° South; then generally north easterly and generally south easterly along the high water mark, passing through the mouth of all watercourses, until the point of commencement.

(All Subject to Survey)

Data Reference and source

    Cadastral data sourced from Department of Resources, Qld (January 2025).

    Watercourse Lines sourced from Department of Resources, Qld (October 2024).

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees.

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Schedule 4 – Description of Determination Area

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 6, to the extent those areas are above the High Water Mark and within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Part 1 — Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the Determination map contained in Schedule 6:

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

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

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the Determination map contained in Schedule 6:

Schedule 5 – Areas Not Forming Part of the Determination Area

The following areas of land and waters are excluded from the Determination Area as described in Part 1 of Schedule 4 and Part 2 of Schedule 4:

1.    Those land and waters within the External Boundary which at the time the native title determination application was made were, or had been, the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) 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 (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; and

(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.

5.    Those land and waters within the External Boundary which, at the time the Native Title Determination Application was made, were the subject of one or more Pre-existing Rights Based Acts, within the meaning of s 24IB of the Native Title Act 1993 (Cth), which wholly extinguished native title.

Schedule 6 – Map of Determination Area

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    The parties have sought a determination of native title under s 87A of the Native Title Act 1993 (Cth), with associated orders, recognising the native title of the Yiithuwarra People. This determination is being made on the same day as a determination recognising the native title of the Guugu Yimidhirr People, and the day before a determination recognising the native title of the Wuthathi People in what the parties call the Captain Billy Landing Determination Area. Two other determinations, in relation to what the parties call the Hopevale Identified Parcels and Wuthathi Identified Parcels, will be made on the papers in the coming weeks.

2    Together, these determinations form the eighth tranche of determinations made in the Cape York United #1 proceeding, with the first tranche having been made in November 2021.

3    The State’s submissions explain that the Guugu Yimidhirr determination, the Yiithuwarra determination, and the Hopevale Identified Parcel determination all relate to undetermined land and waters in the south-east of the Cape York United #1 claim area generally from the mouth of the Normanby River in Princess Charlotte Bay south to the mouth of the Annan River south of Cooktown. It is also clear from the expert material relied on to support the determinations that the way groups are now named and identified as appropriate land holding groups (eg here, Guugu Yimidhirr and Yiithuwarra) has been the subject of careful exploration by experts for the applicant and the State, closely informed of course by the accounts of claimants, and by historical material.

4    The expert material also makes it clear that the approach taken to native title holding group naming and identification in making the s 87A agreements for these particular determinations has been reflected in a number of other determinations already made in the Cape York Uunited #1 claim proceeding.

5    Mr Bernard Walter Hart is a member of the Cape York United #1 claim group. He identifies as an Ambiilmugu man. In his affidavit he explains how, through his father, his country is around Barrow Point. He says:

In my family, the male line is strong and we speak for that country at Barrow Point and Ninian Bay and right down to the mouth of Wakooka Creek because this was the country of our fathers and their fathers. We do not accept those who do not have a father's connection to that country as being able to speak there. If I am there at Barrow Point as the Elder for that country, then they can visit with me and I will introduce them to the old people and they can hunt and camp there with me.

6    Mr Hart explains how Ambiilmugu (as he spells it) is the language for Barrow Point. Some of the expert material relied on for the determinations notes that language named tribes have emerged as something of a focal point in contemporary identification, but it is still necessary to trace back to the land holding group. He says:

My dad told me that the people of Barrow Point and then north to Bathurst Head, including the Flinders Islands and Cape Melville are called Yiidhuwarra.

7    Mr Hart explains the rules about permission:

When people come to my country, they can enjoy the place but they must not abuse it. If a stranger comes to my country and I find out about it, I'll go see them and tell them that next time, they must get permission before they go there. I tell them it is not their country, and it is dangerous to go there without permission. I tell them that the old people are still there in the country. In my mind, it is very wrong to go on my country without permission. You need a traditional owner and you must be very careful or something might go wrong. I believe in that.

….

Being on my country has made me healthy and strong. I don't need anyone's permission to be there. I only need permission from the old people. The old people they will calm me down a bit and give me some fish. I call out to them when I am there and ask them to give me some fish.

8    Mr Hart describes in detail how to make spears for hunting stingray, and how and when he hunts for stingray, and then how he cooks it.

To catch a stingray, I spear him from the beach. Then I cut the flaps and I boil that, but I keep the liver which I cook in a different pot. When the stingray is cooked I take it down to the saltwater and clean it up. I just pluck all the meat off and put it in a separate pot and take it up to the camp and make a fire there and put it on there. Then I chuck the liver on there too and then mix it up. The liver is really good to eat, as long as it is fat.

….

I don't normally spear stingray until storm time when the liver is good and fat. I don't touch stingray any other time because I know that they aren't ready to eat. Storm time in October or November is when the stingray comes in pretty close to the shore, because they are fat and the sharks chase them. That is their time to come inside, when they are nice and fat. I walk along the beach with my spear and woomera. I learnt to do this from my dad and my mum's brother, Uncle Ted Bowen, too. My family really like it when I prepare the stingray this way; they eat more than me.

9    Mr Hart’s totem is Old Man Fog. In his affidavit he narrates some of the stories about Old Man Fog. In describing Old Man Fog, Mr Hart says:

Old Man Fog is my dad's totem too. That Old Man Fog is a mischief-maker, a real trickster. He played a big part out at Barrow Point and Ninian Bay. His name in language is Wurrey. Old Man Fog travels everywhere, and he is a trickster too wherever he goes. He travels from Barrow Point right back to Jones Gap in the Altanmoui Range behind Cape Bowen. He is at Wakooka. He goes inland to Kalpowar Crossing in Muunthiwarra country. He is always travelling around looking for food.

10    Finally, and fittingly, I will extract what Mr Hart says about his father’s spirit:

My dad's spirit is at Barrow Point and that is where my spirit will go to when I am dead. I also plan to be buried there and have made provision for this in my will. I plan to be buried right on the top of the hill at Barrow Point so I can look out to sea and I will be there with my ancestors too.

11    Evidence such as that from Mr Hart forms part of the material upon which the parties submit there is a credible basis for the proposition that the Yiithuwarra Native Title Group has maintained their connection to the Yiithuwarra Determination Area under their traditional laws and customs since prior to sovereignty.

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

THE MATERIAL BEFORE THE COURT

13    This application for consent determination was supported by a principal set of submissions filed by the applicant on 29 September 2025. The State also filed submissions on 8 October 2025. Each set of submissions addressed each of the Guugu Yimidhirr, Yiithuwarra and Hopevale Identified Parcels determinations.

14    The applicant relied on three affidavits dealing with matters relevant to the determinations. First, an affidavit of Michelle Amanda Cioffi dated 17 September 2025 (Cioffi affidavit). Second, paragraphs [5] to [30] of an affidavit filed earlier in these proceedings by Ms Kirstin 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). Third, an affidavit of Louise Keepa dated 17 September 2025 (Keepa affidavit).

15    Ms Cioffi is the Principal Legal Officer of the Cape York Land Council, and has carriage of the Cape York United #1 claim. In the Cioffi affidavit, she deposes to the process undertaken for determining appropriate group and boundary descriptions for each determination, and describes the way in which the 87A agreements were approved, including pre-authorisation and authorisation meetings. She also deposes to how the relevant Prescribed Body Corporates were nominated for the determination areas. She annexes to her affidavit the nomination for each PBC and its consent to act as the relevant PBC for the determination area.

16    In relation to the Yiithuwarra determination, the applicant relied on the Keepa affidavit, which deposed to and annexed the material relied on by the applicant for the purposes of the s 87A agreement and this application:

(a)    the expert report of Dr Kevin Murphy (Dr Murphy) dated 30 November 2017 and filed 30 November 2017;

(b)    the supplementary expert report of Dr Murphy dated 3 April 2019;

(c)    the second supplementary expert report of Dr Murphy dated 28 May 2020;

(d)    the joint expert report of Dr Anthony Redmond (Dr Redmond) and Dr Murphy dated 31 January 2021;

(e)    the expert report of Dr Murphy dated 21 May 2021;

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

(g)    the witness statement of Bernard Hart dated 11 April 2019;

(h)    the apical report of Ms Waters dated 18 May 2025 regarding Thurralwinga (Alice Johnson);

(i)    the apical report of Ms Waters dated 18 May 2025 regarding Bessie O’Burns;

(j)    the apical report of Ms Waters dated 18 May 2025 regarding Charlie Chookie;

(k)    the apical report of Ms Waters dated 18 May 2025 regarding Charlie McGreen;

(l)    the apical report of Ms Waters dated 18 May 2025 regarding Ngamu Dhaarridyin (aka Billy Hart aka Long Billy aka Billy Wardsman);

(m)    the apical report of Ms Waters dated 18 May 2025 regarding Mother of Billy Hart;

(n)    the apical report of Ms Waters dated 19 May 2025 regarding Mother of Nellie Nunggal (Yarkan);

(o)    the apical report of Ms Waters dated 23 May 2025 regarding Mother of Billy (father of Dudley Bulmer);

(p)    the apical report of Ms Waters dated 23 May 2025 regarding Ruth Bandir (Dudur);

(q)    the apical report of Ms Waters dated 23 May 2025 regarding Dirngulu (Maggie aka Maude);

(r)    the apical report of Ms Waters dated 23 May 2025 regarding Miriam Ngamu Bandir;

(s)    the apical report of Ms Waters dated 26 May 2025 regarding Bujin;

(t)    the apical report of Ms Waters dated 26 May 2025 regarding Gungunbi;

(u)    the apical report of Ms Waters dated 27 May 2025 regarding Waarigan;

(v)    the apical report of Ms Waters dated 30 May 2025 regarding Minnie aka Wawumduha;

(w)    the apical report of Ms Waters dated 30 May 2025 regarding Tharramali;

(x)    the apical report of Ms Waters dated 30 May 2025 regarding Ngarungal;

(y)    the apical report of Ms Waters dated 4 June 2025 regarding Harry Mole;

(z)    the apical report of Ms Waters dated 6 June 2025 regarding Eva (wife of Barney Laura); and

(aa)    the apical report of Ms Waters dated 9 June 2025 regarding Rosie aka Nellie (wife of Barney Laura).

17    Some of this expert material in particular is also relevant to the Guugu Yimidhirr determination.

PROCEDURAL HISTORY

18    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.

19    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].

20    Since that first tranche of two consent determinations, six further tranches of consent determinations have been made. These were:

(a)    In 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; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772; and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773.

(b)    In October 2022: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 12) (Gudang Yadhaykenu determination) [2022] FCA 1177; and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 13) (NCY#2 independent parcels determination) [2022] FCA 1178.

(c)    In July 2023: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 14) (Taepithiggi determination) [2023] FCA 731; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 15) (Weipa Peninsula People determination) [2023] FCA 732; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination) [2023] FCA 733; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 17) (Umpila determination) [2023] FCA 734; and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 18) (Atambaya #2 determination) [2023] FCA 735.

(d)    In November 2023: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 19) (Kuku Warra determination) [2023] FCA 1314; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 20) (Thaypan determination) [2023] FCA 1315; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 21) (Possum determination) [2023] FCA 1316; and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 22) (Wik and Wik Way independent parcels determination) [2023] FCA 1317.

(e)    In July 2024: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 24) (Olkola determination) [2024] FCA 740; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 25) (Kunjen Olkol determination) [2024] FCA 741; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 26) (Kowanyama People #2 determination) [2024] FCA 742; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 27) (Kowanyama People #3 identified parcels determination) [2024] FCA 743; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 28) (Kunjen Olkol and Kowanyama People jointly held area determination) [2024] FCA 744; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 29) (Kunjen Olkol and Olkola jointly held area determination) [2024] FCA 745; 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; and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 31) (Southern Kaantju #2 determination) [2024] FCA 747.

(f)    In November 2024: 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.

The authorisation of the Cape York United #1 applicant

21    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].

22    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.

23    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.

24    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

25    As in previous s 87A processes in this proceeding, there were two decision-making processes which needed to involve landholding groups: the process to settle boundaries between the Yiithuwarra people and their neighbours; and the process to settle group description and composition, by identification of apical ancestors. Ms Cioffi’s affidavit explains these processes in great detail.

26    The Boundary Identification Negotiation and Mediation or “BINM” process was adopted by the applicant, through the CYLC, in April 2020 to deal with the reality existing within the Cape York United #1 claim area that distinctly identifiable groups hold interests in that area: see Kuuku Ya’u determination at [18], [25]-[26] and Uutaalnganu determination at [19], [23]-[24]. The BINM process was adopted for each of the Guugu Yimidhirr, Yiithuwarra and Hopevale Identified Parcels areas, and the Cioffi Affidavit sets this out at [54]-[71]. The State acknowledges the importance of the BINM Process, which it describes as “grass roots” and “traditional owner-led”, at [26]-[27] of its submissions.

27    The process occurs as follows. Initial “putative boundary” descriptions were developed by the applicant’s advisors. That information was then considered by traditional owners as part of the fieldwork phase of the BINM Process. The assistance of expert anthropologists and legal advice was made available to representatives of native title groups who participated in the BINM Process.

28    Representatives of the Guugu Yimidhirr and Yiithuwarra Native Title Groups then met with their neighbours at various times in 2021, 2022, 2024 and 2025 and reached agreements as to boundaries. As a consequence, the applicant submits that the agreements between the parties about group descriptions and boundaries are directly informed by the views of the members of the Guugu Yimidhirr and Yiithuwarra Native Title Groups, and their respective neighbours. The Court accepts this submission.

29    The Cioffi affidavit describes the process by which group descriptions for the Guugu Yimidhirr and Yiithuwarra Native Title Groups were arrived at. These descriptions were considered by each group at various meetings during the fieldwork phase. Once the groups had approved the descriptions, they were then advanced by the applicant to the State in accordance with the Court’s case management timetable. Final agreement between the State and the applicant was reached on 28 July 2025 for the Yiithuwarra Native Title Group and for 1 August 2025 for the Guugu Yimidhirr Native Title Group (subject, ultimately, to the later acceptance of an additional Guugu Yimidhirr apical ancestor on 15 August 2025: see Cioffi affidavit at [16]-[17]).

THE APPLICABLE REQUIREMENTS OF SECTION 87A

30    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.

31    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.

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

33    Sub-section 87A(3) requires the Chief Executive Officer of the Federal Court to give notice to other parties to a proceeding that the proposed determination of native title has been filed with the Court. This occurred on 17 September 2025.

34    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

35    As the applicant sets out at [57]-[63] 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

36    For the reasons set out at [64]-[69] of the applicant’s submissions, with which the State does not take issue, and for the further reason set out at [24] of the State’s submissions, I am satisfied the orders sought are within the power of the Court.

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

37    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, and elsewhere, I adopt and apply the observations I made in Drury and Taylor here.

38    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. I note in particular the important emphasis on traditional owner led decision making as to boundaries and group composition.

39    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.

ORDER SOUGHT UNDER S 199C(1A)

40    The Yiithuwarra s 87A agreement reflects that there are rights and interests of parties under indigenous land use agreements (ILUAs) in relation to parts of this determination area, namely:

(a)    the Rinyirru (Lakefield) National Park Cape York Peninsula Aboriginal Land indigenous land use agreement (QI2011/052) (Rinyirru ILUA) registered on 6 February 2012 and authorised by the Lama Lama People, Kuku Thaypan People, the Bagaarrmugu clan, Mbarimakarranma clan, Muunydyiwarra clan, Magarrmagarrwarra clan, Balnggarrwarra clan and Gunduurwarra clan;

(b)    the Seven National Parks Bama-Bi Bubu indigenous land use agreement (QI2014/005) (Seven Nations ILUA) registered on 6 June 2014 and authorised by the Cape Melville & Flinders Island People, Gambilmugu People, Manyamarr People, Bagarrmugu People, Muli People, Muundhi People, Juunju People, Balnggarra People, Daarrba People, Nhirrpan People, Kalpowar People and associated families;

(c)    the Sandstone Western Land Transfer indigenous land use agreement (QI2016/047) (Sandstone Western Land Transfer ILUA) registered on 21 February 2018 to which the Cape York United #1 Applicant is a party.

41    The parties submit an order pursuant to s 199C(1A) of the Native Title Act should be made, directing the Registrar not to remove the details of these ILUAs from the Register of Indigenous Land Use Agreements. The parties contend this order should be made out of an abundance of caution, given the ongoing operational nature of the ILUAs.

42    Relevantly to the present situation, s 199C(1)(a) and (b) provide:

(1)    Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

(a)    in the case of an agreement under Subdivision B of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and the persons who, under the determination, hold native title in relation to the area are not the same as those who had previously been determined to hold it; or

(b)    in the case of an agreement under Subdivision C of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and any of the persons who, under the determination, hold native title in relation to the area is not a person who authorised the making of the agreement as mentioned in:

(i)    if the application relating to the agreement was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 203BE(5)(b); or

(ii)    if the application relating to the agreement included a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met—that paragraph; …

43    The State submits that the applicable provision is s 199C(1)(b), because the relevant ILUAs are area agreements. I accept that submission.

44    Section 199C(1A) sets out three requirements for the making of an order which will have the effect of ensuring the Registrar does not comply with their otherwise extant obligations under, relevantly, s 199C(1)(b). Section 199C(1A) provides:

(1A)    If:

(a)    the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and

(b)    the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and

(c)     the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement;

the Federal Court may order the Registrar not to remove the details of the agreement from the Register.

45    The State supports and presses for an order under s 199C(1A) out of an abundance of caution in circumstances where the group descriptions of those who authorised the relevant ILUAs are not precisely the same as, on their face, the group descriptions proposed in the Murphy Determination s 87A agreements.

46    With respect to sub-s 199C(1A)(b), the State submits this requirement is met because it is the the Yiithuwarra native title group that seeks the order under s 199C(1A) in respect of the Rinyirru ILUA, Seven National Parks ILUA and Sandstone Western Land Transfer ILUA (collectively, Yiithuwarra ILUAs).

47    With respect to sub-s 199C(1A)(c), the State submits this requirement is met because the Yiithuwarra native title group passed resolutions at the Yiithuwarra authorisation meeting on 19 August 2025, accepting the terms of the Yiithuwarra ILUAs and directing the applicant to seek an order pursuant to s 199C(1A) that the Yiithuwarra ILUAs not be removed from the Register.

48    The State, however, also submits (at [36]) that “there has been no authority which has considered when s 199C(1)(b) may be engaged.” For the reasons I set out at Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 25) (Kunjen Olkol determination) [2024] FCA 741 at [72], I do not consider a s 87A agreement to be an appropriate occasion to expand any further upon the construction and operation of s 199C(1)(b). For similar reasons to those I set out in Kunjen Olkol at [73], I am satisfied it is appropriate here to make an order in the form sought by the parties.

NOMINATION OF PRESCRIBED BODIES CORPORATE

49    One PBC, Guugu Yimidhirr Aboriginal Corporation (ICN: 11764), has been nominated for the Guugu Yimidhirr and related Hopevale Identified Parcels determination. Another, Yiithuwarra Aboriginal Corporation (ICN 11765) has been nominated for the Yiithuwarra determination. The circumstances regarding the nomination of each the PBCs, including their consent, are set out in the Cioffi Affidavit. In the circumstances, the Court is satisfied that the nomination of each of the PBCs is appropriate.

CONCLUSION

50    The Court congratulates particularly the Guugu Yimidhirr, Yiithuwarra, and the parties, but also all involved on the agreements reflected in the determinations being made by the Court in this tranche. A tremendous amount of work and resources has been applied by the parties’ legal representatives, experts, employees of the CYLC, and officers across various departments in the State of Queensland. The Court also commends the work of Judicial Registrar Laurelea McGregor in the processes that have led to the Court’s orders today, as well as former Judicial Registrar Simon Grant, who worked on this proceeding for several years prior to his appointment to the National Native Title Tribunal.

51    As the eighth tranche of determinations in a period of just four years, the continued progress in the Cape York United #1 claim is a testament to the dedication and commitment of all involved. The pace of determinations, the huge areas of country determined and the number of native title holding groups recognised all demonstrate that the case management and agreement making processes in this proceeding provide an example of how much can be achieved by working together.

Associate:

Dated:    21 October 2025

SCHEDULE OF PARTIES