FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 36) (Hopevale identified parcel determination) [2025] FCA 1576

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.    A determination of native title was made on 8 December 1997 in Erica Deeral (On behalf of herself & the Gamaay Peoples) & Ors v Gordon Charlie & Ors [1997] FCA 1408 (the Hopevale Determination) in relation to most of the lands and waters of the Hopevale Deed of Grant of Trust (being the land and waters comprising Lot 35 on Plan BS222 and now known as Lot 35 on SP232620) to the High Water Mark.

B.    The Hopevale Determination:

(a)    did not include roads or other cadastral parcels of land within the external boundary of Lot 35 on SP232620;

(b)    excluded specified parts of Lot 35 on SP232620 by reference to historical tenures;

(c)    included a determination that native title does not exist with respect to specified parts of Lot 35 on SP232620 by reference to historical titles; and

(d)    included a determination that native title exists with respect to the balance of Lot 35 on SP232620.

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

D.    This Determination relates to those areas within the external boundary of Lot 35 on SP232620 that were excluded from or did not form part of the Hopevale Determination that may be claimed as part of the Native Title Determination Application and that otherwise do not fall within the external boundary of a separate determination to be made in favour of the Guugu Yimidhirr People.

E.    The Applicant agrees that the areas listed in Schedule 4 are areas excluded from this Native Title Determination Application because they are land and parcels either subject to the Hopevale Determination (Parts 1 and 2) or where native title has been wholly extinguished (Part 3).

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

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

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

6.    Native title exists in the Determination Area.

7.    The native title is held by the Guugu Yimidhirr People described in Schedule 1 (the Native Title Holders).

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

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

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

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

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

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

10.    The native title rights and interests referred to in order 8(b) 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.

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

14.    The native title is held in trust.

15.    The Guugu Yimidhirr Aboriginal Corporation (ICN: 11764), 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    vi

Schedule 2 – Other Interests in the Determination Area    x

Schedule 3 – Description of Determination Area    xii

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

Schedule 5 – Map of Determination Area    xvii

Schedule 1 – Native Title Holders

The Native Title Holders are the Guugu Yimidhirr People. The Guugu Yimidhirr 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 Guugu Yimidhirr People, from one or more of the following apical ancestors (listed alphabetically):

1.    Andy Butchan;

2.    Baabi;

3.    Balkan (wife of Baabi);

4.    Barney;

5.    Bawayga Jack;

6.    Biddy (mother of Bobby Dixon and others);

7.    Billy (father of Dudley Bulmer);

8.    Billy Webb;

9.    Bilmbil (wife of Ngamu Ngakuburla);

10.    Bindadelma;

11.    Bujin;

12.    Buthal (brother of Charlie Wallace);

13.    Charlie Gibson (aka Charlie Cooktown);

14.    Charlie Palmer;

15.    Charlie Wallace;

16.    Dirngulu (Maggie aka Maude);

17.    Duka;

18.    Elizabeth Tulo;

19.    Father of Tommy and Sammy Brown;

20.    Gaalgujan (Maggie Wallis);

21.    Galganji;

22.    Gulgi Galbay (Maggie Webb);

23.    Gungunbi;

24.    Henry Baru;

25.    Jack McIvor;

26.    Jalbanmum Peter (grandfather of Lizzie Big Jack);

27.    Jimmy (father of Charlie Wunbu Gordon and Tommy Confin);

28.    Jimmy (father of Tommy Dowling and others);

29.    Jinnie Bluey (mother of Sandy Petersen, Rita Florrie (Katchewan) and others);

30.    Johnny (Binhdiwarra);

31.    Kalgurdam (spouse of Orlander Rattler);

32.    Lizzie Douglas;

33.    Lyla Gibson (wife of Charlie Summerhaze);

34.    Maggie (mother of Sambo Walsh);

35.    Maggie (wife of Jimmy Snider);

36.    Maria (Burran) (wife of Ngulun Jacko);

37.    Maria (mother of Dudley Bulmer);

38.    Matyi;

39.    Maudie (wife of Ngandal (George Northcotte));

40.    Midhaking;

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

42.    Minnie Gibson (wife of Peter Rosser);

43.    Miriam Ngamu Bandir;

44.    Moira (wife of Ngulun Jacko);

45.    Mulgal;

46.    Nellie (mother of Polly Bulmer);

47.    Nellie (mother of Polly Holdsworth);

48.    Nellie (mother of Tommy and Sammy Brown);

49.    Nellie (mother of Tommy Dowling and others);

50.    Nellie Nunggal (Yarkan);

51.    Ngamu Bayambi;

52.    Ngamu Darnchidir (Stumpy);

53.    Ngamu Guubanyu;

54.    Ngamu Marrgu (Jimmy);

55.    Ngamu Ngakuburla;

56.    Ngandal (George Northcotte);

57.    Ngolongolo (Kitty);

58.    Ngulun Jacko;

59.    Ngumbuibigu (Billy);

60.    Paddy McIvor;

61.    Peggy Rootsey;

62.    Ruth Bandir (Dudur);

63.    Tommy Point Lookout;

64.    Topsy (mother of Peter Gibson and others);

65.    Waarigan;

66.    Wugali (mother of Charlie Wunbu Gordon and Tommy Confin);

67.    Wuthal (Nellie Coates);

68.    Yaalugure (wife of Barney);

69.    Yalngkarijubur (father of Mitchell Earl);

70.    Yegeran (wife of Bindadelma);

71.    Yirbil (Emma Capebedford).

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 Ergon Energy Corporation Limited (ACN 087 646 062):

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

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

(i)    as the holder of a distribution authority;

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

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

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

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

3.    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 Land Act 1994 (Qld);

(c)    the Water Act 2000 (Qld);

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

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

(f)    the Planning Act 2016 (Qld);

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

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

4.    Any other rights and interests:

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

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

Schedule 3 – Description of Determination Area

The Determination Area comprises the land and waters within the external boundary of Lot 35 on SP232620 (save for those parts subject to former historical portions 2V on BK157104, 6V on BK157104 and 18V on BK157113 which are subject to a different determination in this proceeding) that are not excluded by the terms of Schedule 4, being the lots on plan, or relevant parts thereof, described in the first column of the table immediately below and depicted in dark blue on the map in Schedule 5:

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

Schedule 4 – Areas Not Forming Part of the Determination Area

The following areas of land and waters are excluded from the Determination Area as described in Schedule 3:

Part 1 – determined areas (native title does not exist)

1.    Those land and waters subject to a determination that native title does not exist in the Hopevale Determination.

2.    Specifically, and to avoid doubt, the lands and waters described in (1) above are those parts of the land and waters within Lot 35 on SP232620 at the time the Hopevale Determination was made that were formerly subject to the following historical tenures:

Part 2 – determined areas (native title does exist)

3.    Those land and waters subject to a determination that native title does exist in the Hopevale Determination.

4.    Specifically, and to avoid doubt, the lands and waters described in (3) above are the land and waters within Lot 35 on SP232620 at the time the Hopevale Determination was made, save for:

(a)    those areas identified in Part 1 above;

(b)    permanent roads that are both dedicated and constructed or constructed; and

(c)    the land and waters subject to historical portions 2V on BK157104, 6V on BK157104, 16V on BK157110 and 18V on BK157113.

Part 3 – undetermined extinguished areas

5.    Those land and waters 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).

6.    Specifically, and to avoid any doubt, the land and waters described in (5) 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, including, but not limited to the whole of the land and waters described as:

(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).

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

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

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

Schedule 5 –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) (Hopevale Identified Parcel determination), with associated orders, recognising the native title of the Guugu Yimidhirr People in what is known in these proceedings as the Hopevale Identified Parcel determination area. This determination is being made on the papers, following a determination for the Guugu Yimidhirr People over what is known as the Guugu Yimidhirr determination area, made in Cooktown on 23 October 2025: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 34) (Guugu Yimidhirr determination) [2025] FCA 1282 (October 2025 Guugu Yimidhirr determination, and collectively with this determination, the Guugu Yimidhirr determinations). “Parcels” determinations, like this one, deal with collections of areas which have been, for one reason or another, left out of previous determinations.

2    The Hopevale Identified Parcel determination area is comprised of an area of land located within the external boundaries of, but, the parties submit, excluded from, a determination of native title made in 1997 in Deeral (on behalf of herself & the Gamaay Peoples) v Charlie [1997] FCA 1408 (1997 Hopevale determination). The parties’ intention with this determination is to address all undetermined parcels of land within the external boundary of the 1997 Hopevale determination. While the Court follows the terminology of the parties in describing this as the “Hopevale Identified Parcel area” in the singular, the determination in fact addresses a number of parcels, in relation to all but one of which native title is agreed to be extinguished.

3    Together with determinations for the Yiithuwarra People (Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 33) (Yiithuwarra determination) [2025] FCA 1281) and Wuthathi People (Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 35) (Wuthathi (Captain Billy Landing) determination) [2025] FCA 1283), also made in October 2025, and a further “parcels” determination for the Wuthathi People (Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 37) (Wuthathi #2 identified parcels determination) [2025] FCA 1577), these determinations form the eighth tranche of determinations made in the Cape York United #1 claim, with the first tranche having been made in November 2021.

4    The Court set out some of the background to the Guugu Yimidhirr People’s native title claims in the October 2025 Guugu Yimidhirr determination, and quoted from affidavit evidence provided by two Guugu Yimidhirr men on this application, Raymond Burns and Tim McGreen, which I will not repeat.

5    The Court is satisfied that all of the requirements of the Native Title Act 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

6    This application for consent determination was supported by a principal set of submissions filed by the applicant on 29 September 2025. The respondent State of Queensland also filed submissions on 8 October 2025. Each set of submissions addressed each of the now complete Guugu Yimidhirr and Yiithuwarra determinations, as well as the Hopevale Identified Parcel determination.

7    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).

8    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.

9    In relation to the Guugu Yimidhirr and Hopevale Identified Parcel determinations, 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 expert report of Mr Ray Wood dated 17 June 2020;

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

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

(g)    the supplementary expert report of Dr Murphy dated 3 December 2021;

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

(i)    the affidavit of Raymond Burns dated 26 May 2021;

(j)    the witness statement of Tim McGreen dated 29 March 2019;

(k)    the witness statement of Gavin Bassani dated 27 March 2019;

(l)    the apical report of Ms Waters dated 18 May 2025 regarding Maudie (wife of Ngandal (George Northcotte));

(m)    the apical report of Ms Waters dated 18 May 2025 regarding Minnie aka Wuwumdha (wife of Norman Arrami);

(n)    the apical report of Ms Waters dated 20 May 2025 regarding Mulun Jacko, Maria (Burran) (wife of Mulun Jacko) and Moira (wife of Mulun Jacko);

(o)    the apical report of Ms Waters dated 20 May 2025 regarding Gulgi Galbay (Maggie Webb);

(p)    the apical report of Ms Waters dated 20 May 2025 regarding Buthal (brother of Charlie Wallace);

(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 Ruth Bandir (Dudur);

(s)    the apical report of Ms Waters dated 23 May 2025 regarding Maria (mother of Dudley Bulmer);

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

(u)    the apical report of Ms Waters dated 23 May 2025 regarding Nellie Nunggal (Yarkan);

(v)    the apical report of Ms Waters dated 25 May 2025 regarding Henry Baru;

(w)    the apical report of Ms Waters dated 26 May 2025 regarding Ngolongolo (Kitty);

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

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

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

(aa)    the apical report of Ms Waters dated 4 June 2025 regarding Gaalgujan (Maggie Wallis);

(bb)    the apical report of Ms Waters dated 13 June 2025 regarding Jimmy (father of Tommy Dowling and others);

(cc)    the apical report of Ms Waters dated 13 June 2025 regarding Nellie (mother of Tommy Dowling and others);

(dd)    the apical report of Ms Waters dated 16 June 2025 regarding Father of Tommy and Sammy Brown;

(ee)    the apical report of Ms Waters dated 16 June 2025 regarding Nellie (mother of Tommy and Sammy Brown);

(ff)    the apical report of Ms Waters dated 26 June 2025 regarding Maggie (wife of Billy Snider);

(gg)    the apical report of Ms Waters dated 26 June 2025 regarding Maggie (mother of Sambo Walsh);

(hh)    the apical report of Ms Waters dated 30 June 2025 regarding Nellie (mother of Polly Holdsworth);

(ii)    the apical report of Ms Waters dated 7 July 2025 regarding Minnie Gibson (wife of Peter Rosser);

(jj)    the apical report of Ms Waters dated 7 July 2025 regarding Lyla Gibson (wife of Charlie Summerhaze);

(kk)    the apical report of Ms Waters dated 7 July 2025 regarding Charlie Gibson (aka Charlie Cooktown);

(ll)    the apical report of Ms Waters dated 8 July 2025 regarding Kalgurdam (spouse of Orlander Rattler);

(mm)    the apical report of Ms Waters dated 11 July 2025 regarding Yalngkarijubur (father of Earl Mitchell);

(nn)    the apical report of Ms Waters dated 28 July 2025 regarding Lizzie Douglas (mother of Charles McLean and others);

(oo)    the apical report of Ms Waters dated 28 July 2025 regarding Jalbanmun Peter (grandfather Lizzie Big Jack);

(pp)    the apical report of Ms Waters dated 30 July 2025 regarding Topsy (mother of Peter Gibson and others);

(qq)    the apical report of Ms Waters dated 30 July 2025 regarding Biddy (mother of Bob Dixon and others); and

(rr)    the apical report of Ms Waters dated 11 August 2025 regarding Charlie Palmer.

THE 1997 HOPEVALE DETERMINATION

10    It is necessary to say something about the 1997 Hopevale determination, and its relationship to this determination. As noted above, this determination relates entirely to parcels within the external boundary of the 1997 Hopevale determination. It is not in dispute that a native title determination cannot be made over areas previously subject to a different native title determination: see [23] of the applicant’s submissions.

11    For reasons that are set out below, the parties agree that there are two types of historical parcel which were not addressed by the 1997 Hopevale determination and accordingly remain undetermined. These parcels are sought to be addressed by this determination. They fall into two classes: various historical parcels subject to historical tenures which fell outside what is known in Queensland as a Deed Of Grant In Trust (first class of parcels), and historical parcels which fell within the DOGIT but were nevertheless specifically excluded from it (second class of parcels).

12    The parties agree that native title rights have been extinguished in relation to the first class of parcels, which are listed in Schedule 4 Part 3 to this determination. The parties also agree that native title rights are capable of recognition in land formerly part of the second class of parcels, by operation of s 47A of the Native Title Act. One of these parcels is listed in Schedule 3 of this determination (the other part parcel in this class having formed part of the October 2025 Guugu Yimidhirr determination).

13    More specifically, the applicant submits, and the State agrees, that the Court ought to construe the 1997 Hopevale determination such that it excludes some of the historical parcels recorded in the Table A to Annexure 2A of the Deed schedule of that determination: applicant’s submissions at [16]-[29] and particularly [28]-[29]; the State’s submissions at [21]-[22]. Those parcels were all areas of land subject to historical tenures, and the parties submit that, properly understood, no determination was made in respect of those of the parcels which fell outside the DOGIT. The Court accepts the parties’ submission that native title rights have been extinguished in relation to this first class of parcel.

14    The applicant also submits, and the State agrees, that certain parcels, including one parcel relevant to this determination, which fell within the DOGIT were excluded from the 1997 Hopevale determination by paragraph [2.3] of that determination. The applicant submits, and the State agrees, that native title rights are capable of recognition in this second class of parcel by reason of the operation of s 47A of the Native Title Act. The Court accepts this submission.

15    Given the agreed approach between the applicant and the State, reflected in the s 87A agreement, it is unnecessary for the Court to otherwise descend into greater detail on this application.

PROCEDURAL HISTORY

16    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.

17    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].

18    Since that first tranche of two consent determinations, six further tranches of consent determinations have been made (prior to the present, eighth tranche). 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

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. For the reasons given in the extract above, I continue to consider such orders are appropriate.

AUTHORISATION FOR THE DETERMINATION AREA

23    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 Guugu Yimidhirr 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.

24    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 Parcel 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. While it might be said that the boundary of the Hopevale Identified Parcel determination area was set by the terms of the 1997 Hopevale determination, the applicant submits that the outcome of the BINM process supports the connection of the Guugu Yimidhirr People to the Hopevale Identified Parcel determination area, and so the Court infers that it was, at least in some respect, undertaken in relation to this area: see applicant’s submissions at [36], and the Cioffi affidavit at [29].

25    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.

26    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.

27    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

28    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.

29    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.

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

31    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.

32    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

33    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

34    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

35    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.

36    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.

37    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. In this determination, the position of the State as a party to the 1997 Hopevale determination, and its institutional knowledge of what the ambit of that determination was, provides a credible basis to resolve what might otherwise have appeared to be some uncertainty about the land available for recognition on this determination.

NOMINATION OF PRESCRIBED BODIES CORPORATE

38    One PBC, Guugu Yimidhirr Aboriginal Corporation (ICN: 11764), has been nominated for both the Guugu Yimidhirr and related Hopevale Identified Parcel determination. The circumstances regarding the nomination of the PBC, including its consent, are set out in the Cioffi Affidavit. In the circumstances, the Court is satisfied that the nomination of the PBC is appropriate.

CONCLUSION

39    This is a determination over a relatively small area of land. Resolving issues over these sorts of parcels can nevertheless take significant time. In this case, the outstanding undetermined areas from the 1997 Hopevale determination have remained unresolved for almost 30 years. The Court is grateful for the work of parties and their legal representatives.

Associate:

Dated:    12 December 2025

SCHEDULE OF PARTIES