FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 43) (Northern Kaanju #2 (Orchid Creek) determination) [2026] FCA 1085

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 Northern Kaanju People on 5 July 2022 (Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770.

B.    The Applicant agrees that the areas listed in Schedule 4 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) for the Determination Area.

3.    Each party to the proceeding 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 maps 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 Northern Kaanju People described in Schedule 1 (the Native Title Holders).

8.    Subject to orders 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 3 are:

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

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

9.    Subject to orders 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 3 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.

10.    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.

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

12.    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).

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

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

(a)    the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)    to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title rights and interests continue to exist in their entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and

(c)    the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

THE COURT DETERMINES THAT:

15.    The native title is held in trust.

16.    The Northern Kaanju Aboriginal Corporation (ICN: 9756), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

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    vii

Schedule 2 – Other Interests in the Determination Area    ix

Schedule 3 – Description of Determination Area    xiii

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

Schedule 5 – Map of Determination Area    xvi

Schedule 1 – Native Title Holders

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

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

(b)    Charlie Boko;

(c)    Billy Boyd;

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

(e)    Father of Billy Chungo;

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

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

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

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

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

(k)    Tommy Larsen;

(l)    George Mamoose (aka George Mamus);

(m)    Old Lady Mapoon (Mapun);

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

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

(p)    George Moreton Snr;

(q)    Big Johnny (Nguulpam);

(r)    Annie Night Island;

(s)    Charlie James (Flathead) Pascoe;

(t)    Polly Roberson;

(u)    King Bob Robertson;

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

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

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

(y)    Ammanbunga (mother of Victoria John).

Schedule 2 – Other Interests in the Determination Area

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

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

(a)    Northern Kaanju People Forestry Act Sales Permit ILUA (QI2024/011) registered on 1 August 2025; and

(b)    Peninsula Developmental Road ILUA (QI2016/049) registered on 11 July 2017.

2.    The rights and interests of the parties in the Northern Kaanju Forestry Act Sales Permit ILUA dated 26 September 2024.

3.    The rights and interests of Archer River Quarries Pty Ltd (ACN 125 109 088) under rolling term lease for pastoral purposes (TL 230788) over Lot 5 on SP187433 granted pursuant to the Land Act 1994 (Qld).

4.    The rights and interests of Bowyer Archer River Quarries Pty Ltd (ACN 603 263 369) under sales permits 000296 and 201609002 granted under the Forestry Act 1959 (Qld).

5.    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 5(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 5 and paragraph 8 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 5(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.

6.    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.

7.    The rights and interests granted or available to Alcan South Pacific Pty Ltd (ACN 009 726 078) (and any successors in title) under the Alcan Agreement, including, but not limited to, rights and interests in relation to the “bauxite field” (as defined in clause 1 of the Alcan Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where:

(a)    “Alcan Act” means the Alcan Queensland Pty Limited Agreement Act 1965 (Qld); and

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

8.    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.

9.    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).

10.    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.

11.    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.

12.    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 tables in the Parts immediately below, and depicted in the maps in Schedule 5, to the extent those areas are not otherwise excluded by the terms of Schedule 4.

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 5:

~ denotes areas to which s 47 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 5:

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 Part 1 of Schedule 3 and Part 2 of Schedule 3:

1.    Those land and waters within the Determination Area 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.

(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 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) (Northern Kaanju #2 (Orchid Creek) determination), with associated orders, recognising the native title of the Northern Kaanju People in the Northern Kaanju #2 (Orchid Creek) determination area. This determination is being made ‘on the papers’, following an in person determination for the Northern Kaanju People over the Northern Kaanju determination area, made in Cairns on 5 July 2022: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770, and collectively with this determination, the Northern Kaanju determinations).

2    This is another of what I have elsewhere called “parcels” determinations, which deal with collections of areas which have been, for one reason or another, left out of previous determinations: see eg Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 36) (Hopevale identified parcel determination) [2025] FCA 1576 at [1].

3    When the Court deals with a matter ‘on the papers’, this means the Judge looks at the evidence and considers the submissions in their chambers, and does not hold a public hearing. Nevertheless, the judge must still be satisfied of the same matters as if there had been a public hearing. In native title matters, because of the considerable costs and resources for all parties arising from holding oral consent determination hearings on country or in regional locations, the Court’s practice is to permit each native title group to have one ‘in person’ consent determination and for any further consent determinations to be conducted ‘on the papers’.

4    The Northern Kaanju #2 (Orchid Creek) determination area is around 600 square kilometres in size and surrounded by the Northern Kaanju determination area, save for a small portion at the south-eastern boundary of lot 3 on SP187433 which adjoins the First Southern Kaantju determination area: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771. The Northern Kaanju #2 (Orchid Creek) determination area is the subject of the Northern Kaanju People Forestry Acts Sales Permit Indigenous Land Use Agreement (Orchid Creek ILUA) and was excluded from the Northern Kaanju determination to allow the Orchid Creek ILUA to be finalised. The s 87A agreement for the Orchid Creek ILUA area was made between the applicant, the State, Cook Shire Council, RTA Weipa Pty Ltd, Alcan South Pacific Pty Ltd and Bowyer Archer River Quarries Pty Ltd.

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 Cape York United #1 applicant on 15 May 2026. The respondent State of Queensland filed submissions on 29 May 2026. Each of the parties also relied on parts of their submissions filed in June 2022 in relation to the Northern Kaanju determination.

7    The applicant relied on two affidavits dealing with matters relevant to the determinations. First, an affidavit of Ms Michelle Cioffi filed on 17 September 2025 (Cioffi affidavit). Second, [5] –[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).

8    Ms Cioffi is the Principal Legal Officer of the Cape York Land Council, and has carriage of the Cape York United #1 claim. In the Cioffi affidavit, she describes the way in which the Orchid Creek ILUA was approved, and the way in which the s 87A agreements were approved, including pre-authorisation and authorisation meetings. She also deposes to how the Northern Kaanju Aboriginal Corporation RNTBC (ICN 9756) was nominated as the Prescribed Body Corporate for the determination area. She annexes to her affidavit Northern Kaanju Aboriginal Corporation’s nomination as PBC and its written consent to act as the PBC.

9    The applicant relied on connection material referred to at [7(a)–(c)] and [8(a)–(j)] of the applicant’s submissions in support of the Northern Kaanju determination dated 2 June 2022 (and set out at [9]–[10] of the Northern Kaanju determination); contained in the expert reports of Dr Natalie Kwok (filed on 16 November 2017) and Ms Kate Waters (filed on 6 March 2018); and set out in affidavits of Mr Parkinson Wirrick (filed on 22 November 2021 and 2 June 2022) and Ms Kirstin Malyon (filed on 2 June 2022).

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 previously undetermined parts of Cape York.

11    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].

12    As set out above, the Northern Kaanju #2 (Orchid Creek) determination area was excluded from the Northern Kaanju determination made on 5 July 2022 in the second tranche of consent determinations in this proceeding to allow the Orchid Creek ILUA to be finalised. Together with Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 41) (Eastern Kuku Yalanji determination) [2026] FCA 1083 and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 42) (Western Yalanji determination) [2026] FCA 1084, this determination forms part of the ninth tranche of consent determinations. A summary of the previous tranches of consent determinations is set out at [21] of the Eastern Kuku Yalanji determination.

13    The additional work involved in ensuring that all parcels of land excluded from previous determinations are picked up, and any tenure issues are negotiated and resolved, should not be overlooked. This detailed and time-consuming work produces real benefits for all parties, just as the principal consent determinations do. As this particular determination shows, there are often a range of economic and proprietary interests of third parties which need to be addressed, and these processes take time and goodwill to negotiate.

The particular process for these parcels

14    The applicant’s submissions set out the process for these parcels in detail, and I need not rehearse that. It is enough to note that from an early point in the case management of this proceeding (namely in 2021), the applicant identified the need to exclude the Orchid Creek parcel, because of the particular negotiations needed with the third parties I have referred to earlier in these reasons. Bowyer Archer River Quarries Pty Ltd holds a lease under the Land Act 1994 (Qld) and sales permits under the Forestry Act 1959 (Qld) over parts of the Orchid Creek parcel.

15    Tenure assessments were required, mediations were conducted and by mid-2022 the Court was informed that an in-principle agreement had been reached about the area. Shortly after that the terms of an ILUA were negotiated, and during 2023 the process to authorise the ILUA was undertaken, with the Northern Kaanju Native Title Group authorising the present version of the Orchid Creek ILUA on 20 August 2024. The ILUA was executed on 26 September 2024, an application for its registration was then lodged by the State and the ILUA was registered on 1 August 2025. The authorised s 87A agreement for this determination was filed on 15 September 2025.

16    A nomination for Northern Kaanju Aboriginal Corporation as the PBC was filed on 13 April 2026. After this date, the area was ready for a consent determination application.

The authorisation of the Cape York United #1 applicant

17    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]. As the State submits, in respect of the present parcels determination, the key outcome of the re-authorisation process was that the applicant was authorised to enter into an agreement under s 87A of the Native Title Act only if, inter alia, the proposed native title holders for an area covered by a s 87A agreement agreed to the draft s 87A agreement at a notified meeting for that group. That has occurred here, as the evidence demonstrates.

18    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.

19    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 the Kuuku Ya’u determination and [48] in the Uutaalnganu determination, which I adopt, I continue to consider such orders are appropriate.

AUTHORISATION FOR THE DETERMINATION AREA

20    The process undertaken by the CYLC with the Northern Kaanju Native Title Group was methodical, involving two major decision-making processes: the process to settle boundaries; and the process to settle group description and composition, by identification of apical ancestors. The Boundary Identification Negotiation and Mediation process described at [19]–[25] of the Northern Kaanju determination and in the affidavit of Ms Malyon filed on 2 June 2022 at [73]–[113] is also relevant to the areas of the present determination, as is the process for settling the correct group description by identifying the correct apical ancestors.

21    The s 87A agreement authorisation meeting on 10 May 2023 was notified in a form that included the group description for the Northern Kaanju Native Title Group, and an indicative map of the proposed determination area. The applicant submits that it may be inferred from that notification, the BINM process for boundary determination, the Northern Kaanju Native Title Group’s deliberation concerning their group description, and the fact that no respondent opposes the proposed determination, that the boundaries and group descriptions set out in their proposed Northern Kaanju #2 (Orchid Creek) determination are appropriate.

22    The Court accepts that submission, and the appropriateness of the processes conducted.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

23    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.

24    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.

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

26    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.

27    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

28    As the applicant sets out at [41]–[47] 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

29    For the reasons set out at [48]–[53] 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

30    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.

31    These parcels have been the subject of careful tenure assessment and negotiation, with the active participation of the State and those third parties with key proprietary interests in the Northern Kaanju #2 (Orchid Creek) determination area. I am satisfied it is appropriate to make the orders sought.

NOMINATION OF A PRESCRIBED BODY CORPORATE

32    The existing Northern Kaanju PBC, Northern Kaanju Aboriginal Corporation, has been nominated for this parcels determination. The circumstances regarding the nomination of the PBC, including its consent, are set out in the Cioffi affidavit. In the circumstances, the Court is satisfied that the nomination of the PBC is appropriate.

CONCLUSION

33    As the chronology earlier in these reasons explains, the negotiation of an agreed outcome for these parcels, and the successful conclusion of the Orchid Creek ILUA, is a considerable achievement for all concerned, and has been some time in the making. The Court is grateful for the efforts of all involved, especially the representatives of the third parties involved in this particular ILUA, and again to the Northern Kaanju People for their patience in reaching this outcome.

Associate:

Dated:    14 August 2026

SCHEDULE OF PARTIES