FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 41) (Eastern Kuku Yalanji determination) [2026] FCA 1083

ORDERS

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth)

THE COURT NOTES THAT:

A.    The Applicant agrees that the areas listed in Schedule 5 are areas where native title has been wholly extinguished.

B.    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.

C.    The Eastern Kuku Yalanji 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.

D.    Subject to paragraph E 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 Jabalbina Yalanji Aboriginal Corporation RNTBC 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).

E.    The agreement of the parties described in paragraph D 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.

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)    Peninsula Developmental Road ILUA (QI2016/049);

(b)    Eastern Kuku Yalanji, the State of Queensland & Wet Tropics Management Authority – Freehold Grants (QI2006/007);

(c)    Eastern Kuku Yalanji, the State of Queensland & Cook Shire Council (QI2006/009);

(d)    Eastern Kuku Yalanji 2021 National Parks Land Transfer ILUA (QI2021/010);

(e)    Eastern Kuku Yalanji, the State of Queensland & Douglas Shire Council (QI2006/011);

(f)    Eastern Kuku Yalanji, the State of Queensland & Wet Tropics Management Authority - National Parks (QI2006/026);

(g)    Eastern Kuku Yalanji, the State of Queensland & Harlow (QI2006/012);

(h)    Eastern Kuku Yalanji, the State of Queensland & Marshall (QI2006/014);

(i)    Eastern Kuku Yalanji & Cook Shire Council – Local Government Agreement (QI2006/025);

(j)    Eastern Kuku Yalanji & Douglas Shire Council – Local Government Agreement (QI2006/024);

(k)    Eastern Kuku Yalanji, the State of Queensland & Bana Mindilji Aboriginal Corporation (QI2006/017); and

(l)    Eastern Kuku Yalanji, the State of Queensland & Wujal Wujal Aboriginal Shire Council (QI2006/013).

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 Eastern Kuku Yalanji People described in Schedule 1 (the Native Title Holders).

9.    Subject to orders 11, 12, and 13 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 11, 12, and 13 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 9(b) and 10 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 9 and 10 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 Jabalbina Yalanji Aboriginal Corporation RNTBC (ICN: 7002), 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    ix

Schedule 2 – Other Interests in the Determination Area    xiv

Schedule 3 – External Boundary    xx

Schedule 4 – Description of Determination Area    xxii

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

Schedule 6 – Map of Determination Area    l

Schedule 1 – Native Title Holders

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

1.    Alamandi Lizzie (Lilly) Dawson;

2.    Amulkaba Jimmy Johnson Snr;

3.    Annie Mason (sister of Daisy);

4.    Bagi Kari Mary Ann (sibling of Kalkamanangu (Billy King) and mother of Charlie Ball Dirrakari and Dugaldandi Leslie Yarry and Billy Collins);

5.    Balmbarra aka Billy Bloomfield (father of George Doughboy, Toby Bloomfield and Doolma Peter Bloomfield);

6.    Baral-Baral (spouse of Bluja King Nai-iman);

7.    Bijun Dungarra (spouse of Mujinija Walker Nandy);

8.    Biru (mother of George Doughboy, Toby Bloomfield and Doolma Peter Bloomfield);

9.    Bluja King Nai-iman;

10.    Buji (mother of Polly Kangkwiyin and others);

11.    Bujilkabu;

12.    Burradi;

13.    Charlie Denman Snr;

14.    Charlie Redheart Wawujabba;

15.    Daisy (sister of Annie Mason);

16.    Dickie Springvale Kukujika;

17.    Dimbanga Sandy;

18.    Dinah Dalkeith;

19.    Duraja (mother of Olbar and Nellie Nambaji);

20.    Friday (mother of Lily Bertha and others);

21.    Friday Wauwaga (brother of Bluja King Nai-iman);

22.    Harry Beche-De-Mer;

23.    Harry Shuan;

24.    Henry Bloomfield;

25.    Isabella Henderson (Wawu-kuwa);

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

27.    Jeannie 'Ginny' Bamboo;

28.    Jennie Douglas;

29.    Jerry Wotton;

30.    Jessie Buchanan (Babi Milbija Narrijinya);

31.    Jimmy Blanket;

32.    Jimmy Johnson Snr (grandfather of Rene Johnson and others);

33.    Jimmy Mossman Snr;

34.    Jinabaji (aka Ginabudgee Ayton);

35.    Jinjirrba (Old Man Toby);

36.    Jubby Lily Burchill;

37.    Jukurra Polly;

38.    Juwalba Willie Wiltia Crosseye;

39.    Kalkabinda;

40.    Kalkamanangu (Billy King);

41.    Kalkamanangu (father of Olbar and Nellie Nambaji);

42.    Kalkaymba (father of Doris Jinamul and others);

43.    Kilkil (Gilgil) Punda;

44.    King Toby;

45.    Kubukubu (Old Billy Corporal);

46.    Kulka (Gulga) (mother of Polly Black Gibson);

47.    Kuruwujan;

48.    Lily Kajakaja;

49.    Lora aka Laura (mother of Charlie and Hilda McLean);

50.    Maggie (mother of Charlie Collins);

51.    Maggie (mother of Muriel Minnie Rossville and others);

52.    Maggie (spouse of Charlie Ogilvie);

53.    Maggie Queen;

54.    Mandilba Jimmy Rossville (brother of Old Bamboo);

55.    Mara Baril Baril;

56.    Marray-Marray Murranbi Jinakulur (three toes) aka Peter Smith;

57.    Maudie (aka Maudie Johnson);

58.    Maymi Kitty (spouse of Bujilkabu Wulbar);

59.    Mijinba Nellie (spouse of Mandilba Jimmy Rossville);

60.    Miliji;

61.    Mindil (father of Charlie Ogilvie);

62.    Minnie (spouse of Bamboo);

63.    Molly (mother of Jessie Brown);

64.    Moongabuyan Ngamu-Ngulmbay Friday (father of Rosie Redheart and Jimmy Winkle);

65.    Mujala (sister of Rosie);

66.    Munari Billy Gibson Snr;

67.    Mundy Nunn Pui-Alnganga;

68.    Nambaji (aka Numbudgee Ayton);

69.    Narrakinna Annie Lox (mother of Eileen Crowley);

70.    Nellie (mother of Paddy Mossman);

71.    Nellie ‘Anana’ Fisher (spouse of Jimmy Mossman Snr);

72.    Ngamu Milimilinga;

73.    Ngingkibaji Polly (spouse of Bluja King Nai-iman);

74.    Ngingkibaji Wawuwida Nellie (spouse of Bluja King Nai-iman);

75.    Old Bamboo (brother of Mandilba Jimmy Rossville);

76.    Old Kokoe (Koka) aka Curley Kooka;

77.    Old Man Kooka (aka Kogal Coker);

78.    Old Man Yorkey;

79.    Paddy (father of George Mirror aka George Mero);

80.    Paddy Missionary;

81.    Paddy Shuan;

82.    Panakalbi (Banakalbi) Rachel aka Bunnagulkay;

83.    Peter Mossman;

84.    Polly Mugalbaru;

85.    Roseann (Rosie Rosie) aka Louisa;

86.    Rosie (sister of Mujala);

87.    Rosie (spouse of Old Man Yorkey);

88.    Rosie Gurrmurragudgee;

89.    Rosie Neil;

90.    Ruby (mother of Rosie Redheart and Jimmy Winkle);

91.    Tommy Hides Buchanan;

92.    Topsy (mother of Harry Mossman);

93.    Wabaji (mother of Johnny Jones);

94.    Wampie (Wambi) Nuggett;

95.    Wawooamittan King Charlie (Donald) Diamond;

96.    Wawu Dimbi;

97.    Wawu-Darra Jack (father of Charlie Ball Dirrakari and Dugaldandi Leslie Yarry and Billy Collins);

98.    Wawu-Yilkinga;

99.    Wawunga Jambi Stumpy;

100.    Willy Ngamu-Darrba;

101.    Woko Jeannie (mother of Binda Brenda Maggie Solomon and others);

102.    Wulbur (father of Tiger Tableland);

103.    Wunbu Crosseye;

104.    Wuynkul-baka Nellie;

105.    Yanbun (spouse of Mijili);

106.    Yangki (father of Lizzie Big Jack);

107.    Yangki (father of Polly Kangkwiyin and others);

108.    Yimaday (aka Kate).

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)    Peninsula Developmental Road ILUA (QI2016/049);

(b)    Eastern Kuku Yalanji, the State of Queensland & Wet Tropics Management Authority – Freehold Grants (QI2006/007);

(c)    Eastern Kuku Yalanji, the State of Queensland & Cook Shire Council (QI2006/009);

(d)    Eastern Kuku Yalanji 2021 National Parks Land Transfer ILUA (QI2021/010);

(e)    Eastern Kuku Yalanji, the State of Queensland & Douglas Shire Council (QI2006/011);

(f)    Eastern Kuku Yalanji, the State of Queensland & Wet Tropics Management Authority - National Parks (QI2006/026);

(g)    Eastern Kuku Yalanji, the State of Queensland & Harlow (QI2006/012);

(h)    Eastern Kuku Yalanji, the State of Queensland & Marshall (QI2006/014);

(i)    Eastern Kuku Yalanji & Cook Shire Council – Local Government Agreement (QI2006/025);

(j)    Eastern Kuku Yalanji & Douglas Shire Council – Local Government Agreement (QI2006/024);

(k)    Eastern Kuku Yalanji, the State of Queensland & Bana Mindilji Aboriginal Corporation (QI2006/017); and

(l)    Eastern Kuku Yalanji, the State of Queensland & Wujal Wujal Aboriginal Shire Council (QI2006/013).

2.    The rights and interests of Graham Edward Elmes as the holder of ML 40018 granted under the Mineral Resources Act 1989 (Qld).

3.    The rights and interests of the holder of term lease (TL 0/221483) for grazing purposes over Lot 1 on SP175432 granted under the Land Act 1962 (Qld) and continued under the Land Act 1994 (Qld).

4.    The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their successors in title:

(a)    as the owner(s) or operator(s) of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(c)    for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d)    under any lease, licence, access agreement, permit or easement relating to their telecommunications facilities in the Determination Area.

5.    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.

6.    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:

(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;

(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; and

(d)    in the following Easements in Gross:

(i)    Easement in Gross No. 709766081 over Easement A on SP171856 within Lot 10 on SP171856;

(ii)    Easement in Gross No. 724202630 over Easement A on SP349181 within Lot 35 on SP268667;

(iii)    Easement in Gross No. 724202607 over Easement A on SP352320 within Lot 2 on SP309125;

(iv)    Easement in Gross No. 706352572 over Easement X on SP146395 within Lot 13 on CPBS132;

(v)    Easement in Gross No. 706422206 over Easement M on SP146387 within Lot 113 on SP161900; and

(vi)    Easement in Gross No. 705986904 over Easements N and P on SP146389 within Lot 646 on SP113647.

7.    The rights and interests of Cook Shire Council, Douglas Shire Council and Wujal Wujal Aboriginal 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 7(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 7 and paragraph 8 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 7(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.

8.    The rights and interests of the State of Queensland, Cook Shire Council, Douglas Shire Council and Wujal Wujal Aboriginal 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.

9.    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.

10.    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 Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).

11.    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.

12.    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.

13.    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 boundary commences at a point on the southern boundary of the Kuku Warra Native Title Determination (QCD2023/010) at Longitude 144.542401° East, Latitude 15.664988° South; then extends in a south westerly direction until the junction of the Kennedy Creek and an unnamed watercourse at Longitude 144.526488° East, Latitude 15.676539° South; then generally southerly along Kennedy Creek until the intersection with the Western Yalanji People #4 Native Title Determination (QCD2013/002), also being Lot 1 on CP825797(Wulburjubur Bama Land Trust), then generally south easterly following the northern boundary of that determination until a point at Longitude 144.794800° East, Latitude 15.955978° South, also described as:

generally south easterly along the northern boundary of Lot 1 on CP825797 (Wulburjubur Bama Land Trust), then generally south easterly along the northern boundary of Lot 66 on SP245572 (Bonny Glen Holding), passing through an unnamed road corridor, until the intersection with a corner point of Lot 113 on SP161900 (Maitland Downs), also being a point on the Great Dividing Range.

then generally south easterly following the Great Dividing Range (also being the watershed between the Palmer River Basin and the Normanby River Basin) until the intersection with the southern boundary of the Cape York Representative Aboriginal/Torres Strait Islander Body (RATSIB) area, also described as:

generally south easterly along the northern boundary of Lot 113 on SP161900 (Maitland Downs) until an eastern boundary of that lot at Longitude 144.820778° East, Latitude 15.973402° South; then generally southerly along Great Dividing Range until the intersection with another corner point of Lot 113 on SP161900 (Maitland Downs) at Longitude 144.824511° East, Latitude 15.996663° South; then generally south easterly along the northern boundary of that lot and the northern boundary of Lot 57 on NPW905 (Mount Windsor National Park until the intersection with the southern boundary of the Cape York Representative Aboriginal/Torres Strait Islander Body (RATSIB) area.

then generally north easterly and generally south easterly along the southern boundary of the Cape York Representative Aboriginal/Torres Strait Islander Body (RATSIB) area until the mouth of the Daintree River at approximately Longitude 145.452598° East, Latitude 16.282360° South, then easterly until the high water mark on the northern bank of the Daintree River at Longitude 145.454258° East, Latitude 16.282109° South; then generally northerly along the high water mark passing through the mouth of all watercourses, until the southern bank of the Annan River at Longitude 145.269811° East, Latitude 15.531503° South; then northerly until the mouth of the centreline of the Annan River at approximately Longitude 145.270305° East, Latitude 15.529234° South, also being a point on the southern external boundary of the Guugu Yimidhirr Native Title Determination (QCD2025/003); then generally westerly along the southern external boundary of that determination until the intersection with the eastern external boundary of the Kuku Warra Native Title Determination (QCD2023/010); then southerly and generally westerly along the eastern and southern boundaries of that determination until the point of commencement.

Exclusions:

    Eastern Kuku Yalanji People Native Title Determination (QCD2007/002).

(All Subject to Survey)

Data Reference and source

    Cadastral Data sourced from the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development, Qld (30th September 2025).

    Watercourse Lines sourced from the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development, Qld (5th September 2025).

    River Basins sourced from the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development, Qld (22nd August 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 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 47 of the Native Title Act 1993 (Cth) applies

* 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 paragraph (1) above includes:

(a)    the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, 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 s 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 on which, at the time the Native Title Determination Application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

Schedule 6 – Map of Determination Area

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    The 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 Eastern Kuku Yalanji People. This determination is being made in the same week as a determination recognising the native title of the Western Yalanji People. Both groups have had earlier native title determinations over different areas of their country, but these are their first determinations as part of the Cape York United #1 claim proceeding.

2    Together with a third determination being delivered on the papers and relating to the Northern Kaanju People, these two determinations form the ninth tranche of determinations made by the Court in the Cape York United #1 claim. The first tranche of determinations was made in November 2021. With the making of these two determinations, more than 90% of the original Cape York United #1 claim area will have been resolved through consent determination processes. This includes area recognised as subject to native title, and areas excluded because it has been agreed that native title has been extinguished.

3    The point to emphasise is the tremendous scale and scope of cooperative agreement making which has occurred in Cape York over the last 12 years to reach this milestone.

4    The Eastern Kuku Yalanji and Western Yalanji determinations recognise title to country in the south-east corner of the Cape York United #1 claim area, taking in parts of the town of Cooktown, with the town of Hopevale on the eastern edge of the determination areas. In general terms, the land is situated south of the Annan River and north of the Daintree River, including the upper catchments of the Laura and Normanby Rivers and areas around the communities of Wujal Wujal, Lakeland, Thornton Beach, Rossville and Bloomfield. The total area within the external boundaries of the two determination areas is just over 3,887 square kilometres.

5    Turning specifically to the Eastern Kuku Yalanji determination, there is a great deal of connection material which has been produced to explain why there is a credible basis for the s 87A agreement reached between the parties, and for the recognition of native title held by the Eastern Kuku Yalanji People. These determinations are of deep personal significance to many First Nations People, and so it is appropriate to refer to at least some of the evidence from group members filed to support the proposed Eastern Kuku Yalanji determination.

6    The Cape York United #1 applicant relies on a witness statement by Ms Marie Shipton. Ms Shipton has passed away, but the Court understands it is acceptable to refer to her by name, and to the information she provided. It does so with respect. In her witness statement, Ms Shipton described how she had connections to Eastern Kuku Yalanji through both her father and her mother, which in her statement she called Kuku Yalanji. Ms Shipton described some traditional birthing practices when speaking about her family, and went on to describe her family’s history of forced removals into different parts of Kuku Yalanji country. She explained a number of traditional practices, ceremonies and observances in the areas she grew up in. Ms Shipton explained:

I learnt what I know about Kuku Yalanji country and ways from my Mum and Dad and elders like Bobby Ball, Aunty Lizzie Olbar and my older cousin Lily Yougie.

7     She shared some of that knowledge in her witness statement:

Kuku Yalanji have three clans who are Yalanji, Nyungkal and Jalunji. These three clans are the traditional owners of Kuku Yalanji country. My clans are Nyungkal and Jalunji but I also have a connection to Yalanji. My father told me that in the old days Kuku Yalanji people would follow the father's side but these days we can follow our mother's side or our father’s side.

I get my rights to country through my mother and father and no one can take these rights away from me. My rights to Jalunji sea country are through my mum’s dad. My rights to Yalanji country are through my dad's dad. My Nyungkal connection comes from my dad’s mother.

…

My great grandmother on my mother’s side, Lizzie Big Jack, was from the Black Mountain area which is on Kuku Bidiji land and they are part of the Nyungkal clan. Kuku Bidiji are the people and families who are from that part of country and they speak for that part of country. Because that was her area, our family have every right to go there and do whatever we want because it was her land and now it’s our land. No one can stop me or my family going back to Black Mountain.

8    Ms Shipton described her totem, who taught her about laws and practices relating to totems and how they connect people to country, and she explained how rights are passed between generations. She explained what the customary law is about, who can speak for country and what happens if the wrong people speak, as well as what she should do when introducing outsiders:

I learnt from my father that me or my family can’t talk for other family land or clan land, and people from those other families from those clans can’t speak for my clan land and my family land. In our way, it is important that the rightful traditional owners speak for their clan areas.

If the wrong people speak for country they will get sick. It is only the people from their clan land that can talk to the ancestors from their clan area. My ancestors like my great grandmother Lizzie Back Jack when she passed away her spirit went back to Kuku Bidiji country, which is part of Nyungkal clan area, and when I go back to her country I talk to her and my other ancestors. Her spirit and other ancestors spirit lives in country. I talk in language to my ancestors and say, we here to see and we are walking around. Sometimes I will get a sign like the birds start singing and when this happens I know that the ancestors are happy to see me.

9    Significantly, Ms Shipton expressed her concern about how these customary rules and practices are not followed as they should be in contemporary circumstances such as tourism in Eastern Kuku Yalinji country. It may be that some of these concerns can now be addressed in a post determination environment.

10    Ms Shipton’s witness statement is rich in accounts of the seasonal use of resources for food, along with traditional practices that accompany hunting, fishing and gathering of resources, as well as what resources are used for traditional medicines.

11    She described customary responsibilities for country:

Looking after and protecting country is something that I have seen and done all of my life. I protect country by making sure outsiders do not go on to country unless they are smoked and they keep away from our sacred places. I also ask them what they want to do on country. If they wanted to explore or take rocks from Black Mountain I would tell them they can’t explore or take anything from there because it is a sacred area.

It is important that we continue to protect our country because our country protects our next generation of children. Protecting our country means we are protecting the place where we live and where our ancestors lived and our children will be able to learn about Kuku Yalanji country and culture and they can continue to live on country.

…

The old people used to live at Degarra on the Bloomfield River. There is an old cemetery near Degarra and many Kuku Yalanji people are buried there. The Jabalbina rangers look after that cemetery. It is important to look after this old cemetery so that we can show respect to our elders who have passed on. It is our way of showing respect to them and to not forget them and what they did for us and how they teach us things like how to hunt.

12    As I explain below, in the material on this application, there were also statements from other Eastern Kuku Yalanji individuals: William ‘Billy’ Harrigan, Dorothy Salt and Carolyn Pierce. I have read those statements carefully, and like the statement of Ms Shipton, they each contain rich and important accounts of the family histories, customary laws and practices and country of the Eastern Kuku Yalanji People.

13    Taking into account material of this kind, as well as the large amount of material that has been collated in order to provide a credible basis for the parties’ agreement, and for this negotiated outcome, 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

14    This application for consent determination was supported by a principal set of submissions filed by the applicant on 13 July 2026. The State also filed submissions on 15 July 2026. Each set of submissions addressed both the Eastern Kuku Yalanji and the Western Yalanji determinations. Both sets of submissions were helpful and the Court has adopted much of them in these reasons.

15    The applicant relied on three affidavits. First, an affidavit of Michelle Amanda Cioffi dated 13 July 2026 (Cioffi affidavit). Second, [5]–[30] of an affidavit of Ms Kirstin Malyon affirmed on 27 October 2021 and filed earlier in this proceeding, 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 Ngahia Keepa dated 13 July 2026 (Keepa affidavit).

16    Ms Cioffi is the Principal Legal Officer of the Cape York Land Council and has carriage of the Cape York United #1 claim. Ms Keepa is a Deputy Principal Legal Officer at the CYLC and works under the supervision and direction of Ms Cioffi.

17    In the Cioffi affidavit, Ms Cioffi deposes to two processes vital to the successful resolution of claims in the Cape York United #1 claim proceeding top this point; namely the process for determining appropriate group and boundary descriptions. She describes the way in which the s 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.

18    In the Keepa affidavit, Ms Keepa deposes to and annexes the material relied on by the applicant for the purposes of the s 87A agreement and this application. In summary, that material comprised expert reports authored variously by Mr Ray Wood, Dr David Thompson, Dr Kevin Murphy and Dr Anthony Redmond. There were also 66 reports by Ms Kate Waters, whose careful and thorough genealogical work has been indispensable to the successful negotiated resolution of so many of the native title determinations that I outline below. The Keepa affidavit also attached statements by each of Ms Shipton, Mr Harrigan, Ms Salt and Ms Pierce.

PROCEDURAL HISTORY

19    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 previously undetermined parts of Cape York.

20    Some of the complexities of the Cape York United #1 claim are 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].

21    Since that first tranche of two consent determinations, seven further tranches of consent determinations have been made (prior to the present, ninth 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.

(g)    In October and December 2025: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 33) (Yiithuwarra determination) [2025] FCA 1281; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 34) (Guugu Yimidhirr determination) [2025] FCA 1282; 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; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 36) (Hopevale identified parcel determination) [2025] FCA 1576; 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.

22    There has been an extraordinary amount of work undertaken principally by the applicant, their legal representatives, the CYLC and the State, to complete all these agreed determinations, over what is in this jurisdiction a relatively short period of time.

The authorisation of the Cape York United #1 applicant

23    The applicant’s 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].

24    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 changes to the resolution of native title claims within the proceeding, and the re-authorisation process.

25    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. Similar orders are sought in this determination. The State agreed with this proposal. For the reasons given at [50] in Kuuku Ya’u determination and [48] in Uutaalnganu determination, I continue to consider such orders appropriate.

AUTHORISATION FOR THE DETERMINATION AREA

26    As in previous s 87A processes in this proceeding, there were two vital decision-making processes involving claim group members: the process to settle boundaries between the Eastern Kuku Yalanji People and their neighbours; and the process to settle group description and composition, by identification of apical ancestors. The Cioffi affidavit explains these processes in great detail. Both these processes reflect innovative and consistent processes designed to involve group members at local level, and to be as faithful as practicable, in the context of an enormous claim, to traditional owner led agreement making principles.

27    The Boundary Identification Negotiation and Mediation 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 both the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups, as set out in the Cioffi affidavit at [51]–[69]. The State (at [26] of its submissions) appropriately acknowledges the importance of the BINM Process.

28    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 members of the native title groups who participated in the BINM Process.

29    Representatives of the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups then met with their neighbours at various times in 2022, 2023, 2024 and 2025 and reached agreement as to boundaries. The fact that these processes have spanned four years illustrates the patience and determination of all participants. 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 Eastern Kuku Yalanji and the Western Yalanji Native Title Groups, and their respective neighbours. The Court accepts this submission.

30    The Cioffi affidavit describes at [70]–[71] the process by which group descriptions for the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups were arrived at. These descriptions, and the apical ancestors identified, were considered by each group at various meetings during the fieldwork phase. For individuals and families, these processes are deeply personal and important. Again, time must be taken to complete them carefully and properly. 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 13 April 2026 for the Western Yalanji Native Title Group and 27 April 2026 for the Eastern Kuku Yalanji Native Title Group. For this determination, the task of correctly identifying apical ancestors has been a particularly large and complex one: there are 108 apical ancestors identified.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

31    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.

32    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 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.

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

34    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 7 July 2026.

35    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

36    As the applicant sets out at [44]–[50] 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

37    For the reasons set out at [51]–[56] of the applicant’s submissions, with which the State agrees, and for the further reason set out at [23] 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

38    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.

39    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. Again, the emphasis on traditional owner led decision making as to boundaries and group composition is a critical feature of this determination, as in all the Cape York United #1 claim determinations.

40    The Court gives 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)

41    The s 87A agreements for both the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups reflects that there are rights and interests of parties under Indigenous Land Use Agreements in relation to parts of this determination area.

42    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.

43    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; …

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

45    Section 199C(1A) then 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). For the reasons set out at [33]–[34] of the State’s submissions, I am satisfied that those requirements are met.

46    The State, however, also submits (at [35]) that “[t]here 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 BODY CORPORATE

47    The Jabalbina Yalanji Aboriginal Corporation RNTBC (ICN 7002) has been nominated for the Eastern Kuku Yalanju determination. The circumstances regarding the PBC’s nomination, 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

48    The Court’s orders and reasons, and the material filed in support of the Eastern Kuku Yalanji determination, tell a story of all the people who have contributed to the recognition of native title being given today. These people include experts who have worked with group members over many years, lawyers who have done the same, and third parties with interests in the area who have worked cooperatively through their lawyers to facilitate agreement. The important role performed by the State of Queensland, its officers, lawyers and departments has been critical to securing this outcome. The Court’s role and participation depends on the work of dedicated members of the Court’s native title team, led in recent years by Senior Judicial Registrar Laurelea McGregor and previously by former Judicial Registrar Simon Grant.

49    The role of the CYLC has been a complex and resource intensive one. The Court is grateful for the tremendous commitment shown by the CYLC to seeing these processes through. The other group of people who have shown patience and commitment are the members of the Cape York United #1 claim applicant, in particular the lead applicant Mr Mike Ross. He and his fellow applicant members have carried with dignity and determination the considerable burden of giving instructions, attending meetings and leading this huge proceeding over many years.

50    Recognition of the native title of the Eastern Kuku Yalanji People within the Cape York United #1 claim proceeding has been a long time in the making. The country over which title is being recognised is expansive, the groups of native title holders are large and there have been many complexities in reaching this point. The Court acknowledges the Eastern Kuku Yalanji elders who have inspired and led the long journey to recognition of native title to their country, some of whom will not have lived to see the orders made today. They will be strongly in the thoughts of all those at the determination hearing.

51    The nine tranches of determinations in the Cape York United #1 claim are an outstanding example of how much can be achieved in this jurisdiction by working together.

Associate:

Dated:    7 August 2026

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