REASONS FOR JUDGMENT
1 The Federal Court of Australia convenes here on country today to make, and explain the reasons for making, orders under s 87 of the Native Title Act 1993 (Cth) (the "Act") that take effect as a determination of the traditional native title rights and interests of the native title claim group described, for the purposes of these proceedings, as the Northern Cape York #2 Native Title Claim Group.
2 The application for a determination of native title was filed on 1 July 2011. The application was amended on 6 June 2014.
3 The applicants who bring the proceeding on behalf of the claim group are these individuals: Maryanne Coconut, Grace John, Malcolm Callope, Charles Budby, Gabriel Mairu, Florence Hector, Ivy Gordon, Andrea Toby, Maurice Woodley, Victoria Kennedy, Celia Fletcher, Agnes Mark, Alma Day, Harriet Flinders, Florence Luff, Neville Motton, Rhonda Parry, Allison Sailor, Raymond AhMat, Linda McLachlan and Michelle Kostecki (nee AhMat).
4 The group comprising the native title claim group is made up of all persons descended from 30 identified apical ancestors whose names are set out in Sch 3 to the orders made today particularly having regard to Order 6 of those orders, and I will say something more about the apical ancestors and their primary language affiliations, shortly.
5 The area of land and waters the subject of this determination is identified by reference to the description set out in Pts 1, 2 and 3 of Sch 1 to these orders and as depicted in the maps of the determination area set out in Section B of Sch 1. Put simply, the determination relates to an area of land and waters in the north west of Cape York Peninsula that lies generally between the Ducie and Wenlock Rivers and Cox Creek in the northern part of the Determination Area, and Mission River and Myall Creek in the southern part of the Determination Area.
6 On 16 December 2011, the application passed the registration test pursuant to s 190A of the Act and since that date the application has remained on the Register of Native Title Claims. The application was notified by the Native Title Registrar and the notification period for the purposes of s 66 of the Act ended on 15 August 2012.
7 The parties who remain respondents to the application are the State of Queensland, the Cook Shire Council, the Mapoon Aboriginal Shire Council, the Old Mapoon Aboriginal Corporation, the Australian Maritime Safety Authority, Ergon Energy Corporation Limited, Telstra Corporation Limited, Alcan South Pacific Pty Ltd, RTA Weipa Pty Ltd and Sunrise Minerals Pty Ltd.
8 The Commonwealth of Australia is no longer a party to these proceedings.
9 From almost the very outset of the filing of these proceedings, the applicant claim group and the State of Queensland and other respondents have been in discussions and negotiations with a view to seeking to resolve a number of the issues raised by the proceeding. Moreover, this proceeding has been the subject of quite intensive case management with a view to isolating issues which remained in controversy from time to time. A number of these issues were made the subject of mediation processes. Much effort has been dedicated by the representatives of the various parties in seeking to efficiently narrow and then resolve all of the matters in issue necessarily raised by an application for determination of native title made under ss 13(1) and s 61(1) of the Act.
10 The parties and their legal representatives are to be congratulated on the way in which these steps have been undertaken and the Court recognises and acknowledges their efforts in this regard.
11 On 12 June 2014, the parties filed an agreement under s 87 of the Act by which they proposed a draft consent determination.
12 The parties, by consent, now seek the orders published today.
13 Section 87 provides, relevantly, that the section applies if, at any stage of the proceedings (after the expiration of the period specified in the notice given under s 66 of the Act), an agreement is reached between the parties on the terms of an order the Federal Court might make in relation to the proceedings; and the terms of the agreement in writing signed by, or on behalf of, the parties are filed with the Court; and the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
14 Once those preconditions are satisfied, the Court may, if it appears to the Court appropriate to do so, make an order in, or consistent with, the terms of the agreement without holding a hearing of questions of fact and law in relation to the application: s 87(1)(a), (b) and (c); s 87(1A); and s 87(2).
15 The Court is satisfied, on the affidavit evidence filed by the parties, that orders consistent with the terms of the s 87 Agreement would be within power and that it would be appropriate to make orders in and consistent with those terms without holding a hearing.
16 The Court is also satisfied for the purposes of s 13(1) and s 61(1) (which falls within Pt 3 of the Act) that there is no approved determination of native title in relation to the land and waters the subject of this proceeding.
17 I am satisfied that in determining whether it is appropriate to make the proposed orders, emphasis is to be placed upon whether the s 87 Agreement has been genuinely and freely made on an informed basis by all parties represented by experienced independent lawyers and, in the case of the State of Queensland, whether appropriate consideration has been given to the precise content of the applicant's claim. As to this latter matter, I note that the State has been a participant in all of the processes earlier described and has raised questions which have been the subject of a supplementary expert anthropological report. Having regard to the history of the State's engagement in the analysis of native title rights and interests in relation to land and waters throughout Queensland and the resources and expertise available to the State in determining the legal status of particular land and waters, the State's legal advisers are in a strong position to examine the precise content of an applicant's determination application under the Act. Although, in my view, it is not necessary for the applicant claimant group to file a substantial body of evidence that would otherwise be required to satisfy the Court of the merits of the claim as though findings of fact and law were required to be made, it remains necessary, in my view, for the Court to be satisfied that the terms of the agreement reached between the parties (which provide the foundation for the determination orders) are, as Chief Justice French has observed, "rooted in reality": Native Title - A Constitutional Shift?, University of Melbourne Law School, JD Lecture Series, French CJ, 24 March 2009; Kerindun v Queensland (2009) 258 ALR 306 at [16]; Kuuku Ya'u People v State of Queensland [2009] FCA 679 at [12] - [15].
18 The question of whether the terms of the agreement are rooted in reality simply requires some material to be before the Court upon which it can act in reaching the statutory state of satisfaction as to the appropriateness of the making of the orders. In this case, all of the parties have been represented by experienced lawyers other than Sunrise Minerals Pty Ltd which is not legally represented but has participated in the negotiations through Mr Barry Woodhouse. The terms of the s 87 Agreement have emerged out of the processes earlier described undertaken by the participants as represented.
19 Section 94A of the Act requires that an order for determination of native title must set out details of the matters mentioned in s 225 of the Act which must be read together with s 223 of the Act. These sections give meaning to the terms "determination of native title" and "native title" and "native title rights and interests". In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [76], Gleeson CJ, Gummow and Hayne JJ treated the statutory elements contained in s 223 as central. The mandatory requirements for a determination of native title are these. The native title rights and interests must be communal, group or individual rights and interests. They must be rights and interests in relation to land or waters. They must be possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples, relevantly, for these proceedings. Aboriginal peoples by their law and customs must have a connection with the land or waters, and the rights and interests must be recognised by the common law of Australia. Orders under s 87 of the Act take effect not only inter-parties in the resolution of claims made in the proceedings but represent an independent judicial determination, in the exercise of the judicial power of the Commonwealth, that may be asserted, as a matter of law, against anyone.
20 A determination of native title expresses the recognition and protection of those rights and interests in relation to land and waters defined and described in s 223 of the Act which find their origin in traditional laws and customs acknowledged and observed by aboriginal peoples: Members of the Yorta Yorta Aboriginal Community v Victoria at [75] and [76], Gleeson CJ, Gummow and Hayne JJ.
21 A determination of native title requires the Court to determine who are the persons or group of persons who hold the common or group rights comprising the native title; the nature and extent of those rights and interests in the Determination Area; the nature and extent of any other interests; and the relationship between the native title rights and interests and those other interests, in the Determination Area (s 225 of the NT Act).
22 In determining those matters and the matters mentioned earlier at [17] of these reasons, I have had the benefit of reading the following reports: A Northern Cape York Peninsula Regional Society, Dr Anthony Redmond, June 2012; The Northern Cape York #2 Native Title Claim Connection Report, Dr Brendan Corrigan, 9 August 2012; NCYP #1 and #2 Native Title Claims: Supplementary Report, Dr Anthony Redmond, 26 June 2013; Summary of Evidence and Opinions on Northern Cape York #2 Anthropology Research, Dr Brendan Corrigan, 30 May 2014 (Annexure "BMC2" to Dr Corrigan's affidavit affirmed 30 May 2014); and Northern Cape York Peninsula Regional Aboriginal Society: Summary of Evidence and Opinion, Dr Anthony Redmond, 21 May 2014 (Annexure "AJR2" to Dr Redmond's affidavit affirmed 26 May 2014).
23 I have also had the benefit of reading the applicant's submissions dated 30 November 2012, 1 July 2013 and 2 June 2014. Having regard to the nature of the claim and its basis, I propose to make these observations about some aspects of the evidence.
24 Dr Redmond is a Visiting Research Fellow at the Centre for Aboriginal Economic Policy Research at the Australian National University. He is an Australian Research Council Fellow who undertook a joint project entitled "Aboriginal Involvement in the inter-cultural frontier Economy". Dr Redmond has conducted a wide-range of research activities in the discipline of anthropology with particular emphasis upon the foundation for communal, group or individual cultural rights, practises and interests of Aboriginal people. Dr Redmond has undertaken extensive research on this topic in Northern Cape York. Dr Redmond has conducted research in relation to native title claims on behalf of the Northern Cape York Group #2 ("NCY #2") and also in relation to the claim made by the Northern Cape York Group #1 ("NCY #1") claimants.
25 Having regard to that research, Dr Redmond says this:
I came to the professional opinion that the set of regionally shared socio-cultural features and regular interactive patterns characteristic of the groups traditionally associated with the NCY #1 and #2 claim areas indicated that the claimants' predecessors shared membership of a single society constituted through a body of shared traditional laws and customs, all of which had degrees of bearing upon the allocation of landed rights and interests. …
[emphasis added]
26 Dr Redmond sets out extensive analysis which represents the foundation for that view. It is not necessary to repeat in these reasons the content of that analysis. Dr Redmond, in forming his professional opinion, also had regard to a wide body of anthropological research work concerning the peoples of Northern Cape York. That body of anthropological research work includes the work of Lauriston Sharp in 1933, 1934 and 1935. It includes the results of field research expeditions to Cape York in 1928 and in 1932/1933 by Donald Thomson including fieldwork in Weipa and Mapoon, with particular reference to Thomson's papers in 1934, 1939 and 1972. It includes reference to the work of Ursula McConnel who travelled extensively throughout Cape York between 1927 and 1934 and conducted fieldwork to produce a series of reference papers in 1936, 1939 and 1950. It also includes reference to the work of Terrence Crowley, a linguist who undertook field work in Cape York in the 1970s and who produced two publications in 1981 and 1983 of relevance to regionally shared socio-cultural features and patterns of interaction of Aboriginal peoples within the Determination Area the subject of the present claim.
27 More contemporary work has also been reviewed by Dr Redmond and that work includes the work of Thompson and Chase of 2006 and 2009; the work of Chase, Smith and Thompson of 2005 and the work of Rigsby in 1995 and 1999.
28 As a result of an analysis of all of this work and Dr Redmond's own work, he has prepared a map which demonstrates an "overlay" of anthropological data demonstrating considerable overlap of Northern Cape York Peninsula "socio-cultural-linguistic features" and, from the research and data, Dr Redmond identifies an area in which the indigenous people of Northern Cape York shared "an overwhelming preponderance of shared laws and customs in regard to local and social organisation, language affinities, kinship and marriage customs, ceremonial and cosmological beliefs, ritual prohibitions on eating of totemic species, emic perspectives on their relative sameness and difference with their neighbours [perspectives on the language and culture of the peoples in terms of their internal functioning within the group] and regional dispute resolution practices".
29 Dr Redmond reaches these further conclusions:
In my opinion, these data all point towards the existence of a single regional society uniting the NCY #1 and #2 claimant groups under a shared body of laws and customs. …
My field research with contemporary claimants in the NCY #1 claim, in conjunction with my study of the research materials pertaining to the NCY #2 claim, strongly indicate that a continuing observance and acknowledgement of the traditional laws and customs of the region continues to unite the peoples of both the NCY #1 and #2 claim areas within a single society. This contemporary social unity is entirely congruent with my findings regarding the [Northern Cape York Peninsula] regional society at the time of sovereignty.
30 Dr Corrigan has provided extensive anthropological expert reports specifically focused upon the Determination Area in question and the relationship between the Northern Cape York #2 claimants and that area of land and waters.
31 Like Dr Redmond, Dr Corrigan has also conducted extensive anthropological research in relation to the communal, group and individual rights and interests of aboriginal peoples in Northern Cape York. He has been the Huygens Visiting Fellow at Leiden University. He has also published extensively in the discipline. Dr Corrigan has also had regard to the published work of Sharp, Thomson, McConnel and Crowley. He has also had regard to the significant ethnographic writings concerning Cape York of Walter E. Roth from 1897, 1903, 1904 and 1910 and the work of Daniel S. Davidson who conducted fieldwork in Northern Australia in 1930-1931 and 1938-1940 (apart from other related research). Dr Corrigan has also had regard to the language maps of Norman Tindale who relied heavily upon the published materials of Roth, Thomson, McConnel and Sharp in the vicinity of the Determination Area the subject of this claim. Dr Corrigan has also had regard to the extensive work of Dr Frank McKeown from 1996 to 2004. Dr Corrigan has also had regard to the thorough review of regional ethnography undertaken by Dr Redmond.
32 More fundamentally, Dr Corrigan has undertaken extensive research on the apical ancestors of the NCY #2 claimant group in these proceedings and in his reports he sets out, in very considerable detail, the nature and extent of that research engagement.
33 In the result, Dr Corrigan concludes that the land holding group or groups of persons, who possessed rights and interests under traditional laws and customs in relation to each part of the Determination Area at the time of "effective [sovereignty]" were composed of the ancestors of persons who today identify as members of six language affiliated groups described as the Yupungathi, Tjungundji, Taepadhighi, Mbakwithi, Thankakwithi and Anathangayth language affiliated groups.
34 The term effective sovereignty is described at paras 46 to 49 of Dr Corrigan's report of 30 May 2014 and derives from the following consideration. For the reasons identified extensively by Dr Corrigan, it is likely that the "claimant's forebears only first encountered significant external influences to their pre-sovereignty laws and customs with the establishment of the Mapoon Mission, when the first permanent European presence commenced, albeit in small numbers". Dr Corrigan concludes that effective sovereignty should be considered to have occurred in 1891 with the establishment of the Mapoon Mission rather than 26 January 1788 or any time earlier than 1891.
35 Dr Corrigan identifies much of the early history of engagement between Aboriginal peoples and European explorers in Cape York and in and adjacent to the Determination Area. He also identifies aspects of the archaeological record relating to substantial human habitation in parts of Cape York which suggests an ancient presence of peoples for at least 37,000 years and shell mounds demonstrating human habitation in the Determination Area for at least 2,700 years.
36 As to engagement with early explorers, in 1606 the Dutch vessel Duyfken sailed down the west coast of Cape York Peninsula and sighted land at the Pennefather River in the Determination Area and entered Port Musgrave and the Wenlock River where particular interactions occurred with Aboriginal peoples. In April and May 1623, Jan Carstenzoon led the Dutch vessels Pera and Arnehem on an exploratory mission from Torres Strait down the west coast of Cape York Peninsula to about the Staaten River in the south. Carstenzoon named the river now known as the Wenlock River as the Carpentier River. Carstenzoon's diaries provide some detail of huts and weaponry and native dwellings seen at the Skardon River. In 1802, Matthew Flinders in the Investigator sailed down the western side of Cape York Peninsula passing Port Musgrave and making particular observations.
37 As to the description of the rights and interests and the "underlying normative system of Aboriginal people of the region at first settlement", Dr Corrigan accepts and adopts Dr Redmond's view as to the existence and nature of a Northern Cape York "society" of which:
… the NCY #2 native title claim group forms an identifiable sub-set - whose lawful use and occupation of the country has been perpetuated across succeeding generations to the present day through a body of shared traditional laws and customs.
[emphasis added]
38 At para 51 of his report of 30 May 2014, Dr Corrigan says this:
… while the shared laws and customs from which rights and interests in land arise are held at a regional as well as a local level, this does not require that all members of this wider regional society hold equal and identical rights and interests across the whole of the area subject to its jurisdiction. Indeed, there is a strong and abiding sense amongst claimants that specific areas are most rightfully theirs to determine the use of, yet it is the case that the rights they enjoy emerge from (as well as being recognised by) the system of wider societal laws and customs applicable to the region and the wider Aboriginal jural public. In this way, it is the local instantiation of regional laws and customs which create the ability for local persons to take and use the resources of their country and exclude others from doing the same (or provide agreement for that to happen) …
[emphasis added]
39 Each of the six "language affiliated groups" identified by Dr Corrigan as earlier mentioned at [33] of these reasons is associated with a particular language that is, in turn, associated with a particular area of land and waters, in Dr Corrigan's view. Dr Corrigan has undertaken research into the apical ancestors of the claimant group and has identified the primary language affiliation of each of them as well as the contemporary family surnames associated with each apical ancestor. The methodology underlying that analysis is set out in Dr Corrigan's reports. Having regard to his report of 30 May 2014 at paras 70 to 105 and the tables at paras 51 and 52 of his report of 9 August 2012, the apical ancestors of the claim group and the primary language affiliation for each apical ancestor is this:
Apical Ancestor Primary Language Affiliation
Jimmy Pine River Thanakwithi
Arrdirramina (father of Toeboy) Thanakwithi
Bosen Thanakwithi
Tjantayn Thanakwithi
Henry Mailman Brown Thanakwithi
Peter Cockatoo Thanakwithi
Mammus Aorotwan Thanakwithi
Charlie Hall Thanakwithi
York Downs Mammus aka Okolkon Anathangayth
Charlie Fletcher Mbakwithi
Nuarutty Mbakwithi
Jack Batavia aka Jack Bellyfull Taepadhighi
Bob Andoran (father of Catfish/Joseph Andoran) Taepadhighi
Douglas Taepadhighi
Mary Price Taepadhighi
Bumu (mother of Condia) Taepadhighi
Billy Bigfoot/Miller Taepadhighi
Grace Tjungundji
Bullock Tjungundji
Alec Red Beach Tjungundji
Peter Tjungundji
Archie Tjungundji
Charlie Cooktown Yupungathi
Lorna Yupungathi
Billy Barkley/Wombi Yupungathi
Maffra Reid Yupungathi
Cockatoo Yupungathi
Mona Yupungathi
Victor Yupungathi
James Andrews Yupungathi