FEDERAL COURT OF AUSTRALIA

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

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 in favour of the Wuthathi People on 29 April 2015 (Wuthathi People #2 v State of Queensland [2015] FCA 380, QUD 6022 of 2002) (the Wuthathi #2 Determination) in relation to an area of land and waters around Shelburne Bay on the northern tip of Cape York Peninsula.

B.    Schedule 1 of the Wuthathi #2 Determination expressly excluded the following areas from that determination:

(a)    that part of Lot 18 on SP189951 which was subject to former Mining Lease No. 5940;

(b)    that part of Lot 18 on SP189951 which was subject to former Mining Lease No. 5941;

(c)    that part of Lot 18 on SP189951 described as “Road 60 Wide” and delineated by stations “A-B-C-D-A” on CP857658; and

(d)    that part of Lot 20 on SP189951 described as “Road 60 Wide” delineated by stations “A-B-C-D-A” on CP857658.

C.    The Cape York United #1 native title claim 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.

D.    This Determination relates to those areas listed in recital B above, which were expressly excluded from the Wuthathi #2 Determination, and which are claimed as part of the Cape York United #1 native title claim.

E.    The Applicant agrees that any areas which fall within the terms of Schedule 4 of this Determination 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.    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 otherwise excluded by the terms of Schedule 4 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

6.    Native title exists in the Determination Area.

7.    The native title is held by the Wuthathi 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 Determination Area 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 right and interest referred to in order 8(b) does not confer possession, occupation, use or enjoyment to the exclusion of all others. 

11.    There are no native title rights or interests 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 Wuthathi Aboriginal Corporation RNTBC (ICN: 7157), 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    vii

Schedule 3 – Description of Determination Area    xi

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

Schedule 5 – Map of Determination Area     xiii

Schedule 1 – Native Title Holders

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

(a)    Johnson Moreton;

(b)    Frank Wilson;

(c)    Ida “Waterbag” Temple;

(d)    Moe Rie Warren;

(e)    Annie (Athanamu) Punda;

(f)    Pintharra;

(g)    Innis Pascoe;

(h)    Dinah;

(i)    Ada Lancaster;

(j)    Nara Jira Para;

(k)    Ela (Illa); or

(l)    Eliza (wife of Tom Ware).

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)    QI2007/020 - Wuthathi People and Cook Shire Council ILUA;

(b)    QI2015/020 – Wuthathi People #2 and Cook Shire Council ILUA; and

(c)    QI2016/061 – Wuthathi Land Transfer ILUA.

2.    The rights and interests of Cook Shire Council:

(a)    under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be its Local Government Area;

(b)    as 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 2(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 2 and paragraph 3 below;

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

(iii)    undertake operational activities in its capacity as a local government such as feral animal control, erosion control, waste management and fire management.

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

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

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

(b)    the Fisheries Act 1994 (Qld);

(c)    the Land Act 1994 (Qld);

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

(e)    the Forestry Act 1959 (Qld);

(f)    the Water Act 2000 (Qld);

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

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

(i)    the Planning Act 2016 (Qld);

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

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

5.    The rights and interests of members of the public arising under the common law, including but not limited to the following:

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

6.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing rights of the public to access and enjoy the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

(d)    areas that were public places at the end of 31 December 1993.

7.    Any other rights and interests:

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

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

Schedule 3 – Description of Determination Area

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks, or lakes described in the first column of the table immediately below, and depicted in dark blue in the maps in Schedule 5, to the extent they are not otherwise excluded by the terms of Schedule 4.

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

Schedule 4 – Areas Not Forming Part of the Determination Area

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

1.    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).

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 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 an 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) (Wuthathi Identified Parcels determination), with associated orders, recognising the native title of the Wuthathi People in what is known in these proceedings as the Wuthathi Identified Parcels determination area. This determination is being made on the papers, following a determination for the Wuthathi People over what is known as the Captain Billy Landing determination area, made in Cairns on 24 October 2025: 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 (Captain Billy Landing determination, and collectively with this determination, the Wuthathi 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 Wuthathi Identified Parcels determination area is comprised of two parcels of land excluded from a determination of native title made in 2015 in Wuthathi People #2 v State of Queensland [2015] FCA 380. The two parcels, of approximately 184 hectares in size, are surrounded by areas of land where native title was recognised in Wuthathi People #2.

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 Guugu Yimidhirr People (Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 34) (Guugu Yimidhirr determination) [2025] FCA 1282), also made in October 2025, and a further “parcels” determination for the Guugu Yimidhirr People (Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 36) (Hopevale identified parcel determination) [2025] FCA 1576), 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 Wuthathi People’s native title claims in the Captain Billy Landing determination, and quoted from affidavit evidence provided by two Wuthathi men on this application, Johnson Chippendale and Richard Ah Mat, 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 12 September 2025. The respondent State of Queensland also filed submissions on 19 September 2025. Each set of submissions addressed both of the Wuthathi determinations.

7    The applicant relied on three affidavits dealing with matters relevant to the determinations. First, an affidavit of Mr Parkinson Wirrick dated 12 September 2025 (Wirrick Process 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 Mr Wirrick dated 15 September 2025 (Wirrick Connection affidavit).

8    Mr Wirrick is the Deputy Principal Legal Officer of the Cape York Land Council, and has carriage of the Cape York United #1 claim. In the Wirrick Process affidavit, he 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. He deposes to how the relevant Prescribed Body Corporate was nominated for the determination areas. He annexes to his affidavit the nomination for the PBC and its consent to act as the relevant PBC for the determination area.

9    The Wirrick Connection affidavit deposed to and annexed the material relied on by the applicant for the purposes of the s 87A agreement and this application:

(a)    expert report by Dr David Thompson (Dr Thompson) dated 30 October 2017 and filed 31 October 2017;

(b)    expert report by Dr Thompson dated 4 March 2019 and filed 22 October 2021;

(c)    supplementary expert report by Dr Thompson dated 1 May 2019 and filed 12 September 2025;

(d)    expert report by Dr Natalie Kwok dated November 2017 and filed 16 November 2017;

(e)    expert report by Dr Anthony Redmond (Dr Redmond) dated 30 October 2017 and filed 31 October 2017;

(f)    expert report by Dr Redmond dated February 2018 and filed 9 February 2018;

(g)    expert report by Dr Kate Waters (Dr Waters) dated 5 March 2018 and filed 5 March 2018;

(h)    expert report by Dr Waters dated 19 March 2018 and filed 19 March 2018;

(i)    affidavit of Richard Francis Ah Mat dated 20 October 2021 and filed 12 September 2025;

(j)    witness statement of Francis Brisbane dated 7 December 2018 and filed 21 September 2022;

(k)    affidavit of Johnson Chippendale dated 15 December 2021 and filed 12 September 2025;

(l)    witness statement of Meun Lifu dated 17 December 2018 and filed 21 September 2022;

(m)    witness statement of Trevor Lifu dated 17 December 2018 and filed 21 September 2022;

(n)    affidavit of Phillip Robert Wallis dated 1 June 2007 and filed 12 September 2025; and

(o)    affidavit of Ray Douglas Wallis dated 6 September 2006 and filed 12 September 2025.

PROCEDURAL HISTORY

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

11    The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made in November 2021: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [3], [12]-[19], [30]-[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]-[20], [28]-[35].

12    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

13    The applicant’s general authority to enter into the s 87A agreement for this 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].

14    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.

15    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.

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

AUTHORISATION FOR THE DETERMINATION AREA

17    As in previous s 87A processes in this proceeding, the Wuthathi determinations involved two decision-making processes which needed to involve landholding groups: the process to settle boundaries between the Wuthathi people and their neighbours; and the process to settle group description and composition, by identification of apical ancestors. The Wirrick Process affidavit explains these processes in great detail.

18    The Boundary Identification Negotiation and Mediation or “BINM” process described at [21]-[31] of the Captain Billy Landing determination was adopted only for the Captain Billy Landing determination area, as the Wuthathi Identified Parcels determination area is entirely surrounded by land where native title was determined to exist in favour of the Wuthathi in Wuthathi People #2: see [26] of the Wirrick Process affidavit.

19    The group descriptions for the Wuthathi determinations are identical, and consistent with the group description for the Wuthathi People #2 determination. The Wirrick Process affidavit says the following in relation to this process at [50]:

The group description for the proposed Captain Billy Landing Determination and the proposed Wuthathi IP Determination was considered at various meetings during the fieldwork phase in relation to group description. The draft group description proposed by the Applicant to the State, in accordance with then case management timetable steps, was that which was ultimately considered by the Wuthathi Native Title Group at the Pre-Authorisation Meeting and then approved by members of the Wuthathi Native Title Group who attended the subsequent Authorisation Meeting. The Applicant and State reached agreement on the final group description for the Wuthathi Native Title Group on 27 August 2021.

20    The Court accepts this evidence and the appropriateness of the process conducted.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

21    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.

22    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.

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

24    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.

25    Sub-sections 87A(4) to (6) provide:

(4)    The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(a)     an order in, or consistent with, the terms of the proposed determination would be within its power; and

(b)    it would be appropriate to do so.

Note:     As the Court’s order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

(5)     Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

(a)     the order would be within its power; and

(b)     it would be appropriate to do so.

(6)     The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

Sub-section 87A(1): pre-requisites

26    As the applicant sets out at [38]-[44] of its submissions, which the State adopts, each of the pre-requisites in s 87A(1) is satisfied. Each s 87A agreement has been signed by the requisite parties to the proceeding, after appropriate notification.

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

27    For the reasons set out at [51]-[64] of the applicant’s submissions, with which the State does not take issue, I am satisfied the orders sought are within the power of the Court.

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

28    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.

29    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.

30    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.

NOMINATION OF PRESCRIBED BODIES CORPORATE

31    The existing Wuthathi PBC, Wuthathi Aboriginal Corporation RNTBC (ICN 7157), has been nominated for the Wuthathi determinations. The circumstances regarding the nomination of the PBC, including its consent, are set out in the Wirrick Process affidavit. In the circumstances, the Court is satisfied that the nomination of the PBC is appropriate.

CONCLUSION

32    This is a determination over a relatively small area of land. Resolving issues over these sorts of parcels can nevertheless take significant time. The Court is grateful for the work of parties and their legal representatives.

Associate:

Dated:    12 December 2025

SCHEDULE OF PARTIES