Ross on behalf of the Cape York United #1 Claim Group v State of Queensland [2021] FCA 1465 | Case summary

Federal Court of Australia|2021-11-25|Before: Mortimer J

In this consent determination, the Federal Court recognised that the Uutaalnganu (Night Island) People hold native title over their traditional coastal country south of the Lockhart River. The claim formed part of a much larger 2014 application covering most of Cape York. After the parties shifted from fighting a big 'single society' test case to agreeing on smaller group determinations, detailed anthropological and community evidence showed the group still follows its traditional laws for hunting, ceremonies, teaching and looking after sacred sites. Some technical arguments arose because the list of ancestors had grown since the original claim form and not every part of the big claim had been agreed yet. The judge decided these issues should not stop recognition. She used a special power in the Native Title Act to overlook any authorisation problems because the process had been thorough, the State agreed after careful checking, and it was fair to finalise this important first step after seven years of work. Exclusive rights were recognised over two lots of land while non-exclusive rights to hunt, fish, camp and conduct ceremonies apply over the rivers and other areas. A corporation chosen by the group will hold the title in trust. The decision highlights how native title law can adapt to real-world complexities while still protecting deep cultural connections.

What happened

The proceeding forms part of the Cape York United #1 claim filed on 11 December 2014, an ambitious application covering approximately 79,421 square kilometres within the Cape York Representative Aboriginal and Torres Strait Islander Body Area. The claim initially proceeded on the basis that the entire claim group constituted a single society holding a single native title. After intensive case management, a separate questions hearing was set down in 2019 to test that proposition in a "test area" that included the Thompson report area. That hearing was vacated in April 2020 when the applicant and the State of Queensland agreed to change course. Instead of litigating the single society issue, the parties adopted a sequential approach to consent determinations for nine geographically based report areas. The Uutaalnganu (Night Island) and Kuuku Ya'u areas fell within the Thompson report area.

A Boundary Identification Negotiation and Mediation (BINM) process was implemented. It involved a desktop stage in which the applicant advanced proposals based on existing ethnographic material, followed by a fieldwork stage of consultation with claim group members. For the Uutaalnganu (Night Island) group, this process led to agreement with the State on the composition of the native title holding group, the external boundary, and the areas over which native title existed. Authorisation meetings were held on 16 and 17 September 2021. The Uutaalnganu (Night Island) meeting on 17 September 2021 passed resolutions approving the s 87A agreement. A separate re-authorisation of the Cape York United #1 applicant was also obtained through 16 meetings across Cape York and elsewhere, with 165 votes in favour of resolutions that limited the applicant's authority but expressly permitted it to agree to s 87A determinations where specified conditions were met.

On 15 November 2021 two interlocutory applications were filed seeking to join the Kuuku Ya'u Aboriginal Corporation RNTBC and two individuals (one a descendant of the Kuuku Ya'u People and one of the Uutaalnganu (Night Island) People). The complaints concerned additional apical ancestors, one boundary, the choice of prescribed body corporate, communication, and the adequacy of the authorisation process. Those applications were dismissed following a hearing on 22 November 2021, with oral reasons delivered on 23 November 2021. The consent determination hearing proceeded on 25 November 2021.

The material before Mortimer J included affidavits of Kirstin Donlevy Malyon and Parkinson Wirrick detailing the authorisation and nomination processes, extensive connection material comprising Dr David Thompson's 2017 "Lockhart River Coastal Region" report, his supplementary reports and response to State questions, Kate Waters' apical ancestor reports, and witness statements from Father Brian Claudie and Mr G Butcher. The State filed comprehensive submissions on 12 November 2021. All active respondents consented to the orders.

The Court made orders under s 87A determining that native title exists in the determination area and is held by the Uutaalnganu (Night Island) People. Schedule 1 defines the group by reference to 20 apical ancestors, some of whom were not named in the original Form 1. Part 1 of Schedule 4 identifies areas of exclusive native title (subject to s 47A) comprising parts of two lots on SP104551. Part 2 identifies non-exclusive rights over rivers, creeks and lakes, including the Lockhart River and Eden Creek. Order 1 under s 84D(4) provides that the determination may be made despite any actual or arguable defect in authorisation. The Uutaalnganu Aboriginal Corporation (ICN 9606) was nominated as the prescribed body corporate to hold the native title on trust. Each party was ordered to bear its own costs. Schedule 5 excludes areas of prior extinguishment.

Why the court decided this way

Mortimer J was satisfied that the orders sought were within power and appropriate. The principal legal obstacle was the potential defect in authorisation arising from two related matters. First, the original 2014 authorisation expressly withheld authority to agree to any consent determination. Second, the descriptions of the native title holding groups in the proposed determinations included apical ancestors additional to those in the Form 1. The State had not accepted connection over the whole of the remaining Cape York United #1 claim area, raising the further question whether the s 87A agreements had been authorised by all persons who actually held native title.

The Court addressed these issues through the lens of s 84D(4). It accepted the State's submission, drawn from Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122, that Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 should not be read literally. Mortimer J had held in Smirke (No 3) at [109] that differences of the kind in issue are "wholly commonplace" because further research inevitably clarifies or alters details of ancestral histories, particularly where families were disrupted by European settlement. The Full Court in Clifton at [37] had itself recognised that disputes about true membership, boundaries and the nature of rights are inherent in any s 61 application. The present differences fell within that category.

Nevertheless, because these were the first two consent determinations to emerge from the Cape York United #1 claim, the Court considered that the validity of the orders should not be attended by doubt. It therefore made an express order under s 84D(4) in each determination. The reasons for exercising the discretion in favour of the applicant were set out at [48]: the claim was "gargantuan", seven years and substantial public resources had already been expended, methodical efforts had been made at every step, the two key parties had navigated a consensual path, all other respondents had been consulted and consented, and it was plainly in the interests of the administration of justice to resolve the agreed parts of the claim.

On the substantive question of connection, the Court relied heavily on Dr Thompson's 47 years of research in the Lockhart River region, including his 2017 report, supplementary report and response to State questions. That material, together with the apical reports of Kate Waters and the witness statements of Father Claudie and Mr Butcher, established that the Uutaalnganu (Night Island) People are a distinct language-named group within the broader "sandbeach people". Their territory extends from Nguyupalka in the Lockhart River mouth southwards to a coastal point north of Friendly Point, west to the Great Dividing Range, and east to the Great Barrier Reef. The evidence showed continuity in the observance of traditional laws and customs concerning access, resource use, permission protocols, totems, ceremony, teaching and the spiritual presence of ancestors. The State had reviewed the material and was satisfied that the requirements of s 223 were met. The Court gave considerable weight to that assessment.

The nomination of the Uutaalnganu Aboriginal Corporation as prescribed body corporate was also approved because the group had nominated it and the corporation had consented.

Before and after state of the law

Prior to this judgment the law on authorisation defects in large combined claims was unsettled. Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1, Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1 and Ashwin (on behalf of the Wutha People) v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 had been read as requiring that all persons who actually hold native title must have authorised the claim. A literal reading of Clifton suggested that any addition of apical ancestors would mean the group at determination was not the same group that had authorised the s 61 application. That approach created serious practical difficulties for large claims where ethnographic research continues over many years and family histories are complex.

Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; 276 FCR 203 had begun to soften the single society requirement, but the interaction with authorisation remained vexed. Mortimer J's own decision in Smirke (No 3) provided a comprehensive analysis that read Clifton contextually. The present judgment builds directly on that analysis. It confirms that s 213 of the Native Title Act operates on the whole of the procedures in the Act, including the curative discretion in s 84D(4). The result is a more flexible, pragmatic approach that tolerates the "level of difference" inherent in refining claim group membership through further evidence.

After the judgment, the law is clearer: where a large claim is restructured into sequential consent determinations for subgroups, and where any differences in apical ancestors or boundaries arise from the ordinary processes of establishing "true membership" (Clifton at [37]), the Court may, and in appropriate cases will, exercise s 84D(4) to remove doubt. The judgment also reinforces the weight to be given to the State's considered position on connection and tenure. The practical effect is to facilitate the resolution of the remaining undetermined areas within the Cape York United #1 claim without the need for perfect identity between the 2014 claim group and each subsequent determination group.

Key passages with plain-English translation

At [39] Mortimer J observes: "the wholly commonplace occurrence of changes in apical ancestors is capable of being construed as introducing an impediment to the making of a determination of native title by the Court, even by consent. On one reading, Clifton stands for the proposition that there must be absolute identity between the claim group as defined at the time the s 61 application was authorised, and the claim group as defined at the time of determination of native title."

In plain English: it is normal for the list of ancestors to grow or change as more research is done, but some older cases suggested that even a small change could legally block a consent deal. The judge says that reading is too strict.

At [40] the judgment adopts the State's summary of Smirke (No 3) and states that a literal reading of Clifton "would be incompatible with all the kinds of circumstances to which the Full Court referred at [37]". Translation: the appeal judges in Clifton themselves listed the very sorts of arguments (who really belongs, where exactly the boundaries are, what rights exist) that arise in every native title case. If those ordinary arguments automatically invalidated a determination, the Act could never work.

The core discretionary reasoning appears at [48]: "It is plainly in the interests of the administration of justice to do so, in circumstances where the overall Cape York United #1 claim is gargantuan, and has already consumed seven years' worth of resources, mostly sourced from public funds. Substantial, dedicated and methodical efforts have been made to comply with the requirements of the Native Title Act in each step along the way to these first two determinations."

Translation: this is a massive claim that has already cost a fortune in public money. Everyone has tried hard to do things properly. It would be ridiculous to let technical arguments stop the first two agreed outcomes.

On connection, [53] notes that Dr Thompson's report "is to be hoped that it will prove a valuable resource for the peoples of the Lockhart River Coastal region into the future." At [5] the Court quotes Mr Butcher's evidence about feeling the spirits of ancestors while camping. These passages signal that the legal test in s 223 is satisfied by evidence that is both anthropological and deeply personal.

What fact patterns trigger this precedent

This precedent is triggered where a large combined native title application is restructured into sequential consent determinations for discrete language-named or country-based subgroups after an initial "single society" approach is abandoned. It applies when further research after the original s 61 filing identifies additional apical ancestors or refines boundaries, producing a description that differs from the Form 1 but remains within the "true membership" disputes contemplated by Clifton at [37]. The fact that the State has not yet accepted connection over the balance of the larger claim does not prevent a consent determination over the agreed part provided the subgroup has separately authorised the s 87A agreement through a decision-making process it has chosen.

The precedent is engaged when a methodical re-authorisation process has been undertaken (widespread notification, information meetings, remote attendance options, high turnout and overwhelming support), even if a small number of meetings do not pass formal resolutions and even if late objections are received from within the claim group rather than from neighbours. It is particularly apt where the State has conducted a thorough review of connection material, tenure history and extinguishment, circulates its analysis to all respondents, and reaches an informed agreement that the proposed determination complies with s 225. The existence of freehold Aboriginal land or deeds of grant in trust that attract s 47A, and the nomination of a PBC that has been chosen by the group and has consented to act, further strengthen the appropriateness finding.

In short, the combination of a gargantuan claim, a constructive mid-stream change of approach, detailed anthropological and lay evidence, State agreement, and the public interest in resolving agreed portions without further delay will engage the s 84D(4) discretion.

How later courts have treated it

The judgment itself treats Smirke (No 3) as the most recent and comprehensive authority on the proper reading of Clifton. Mortimer J extracts and endorses the State's summary of Smirke (No 3) at [40], thereby confirming that the earlier decision's reasoning applies equally to consent determinations under s 87A. Clifton is distinguished on the basis that its focus was on competing groups where only one had made a s 61 application; it is not authority for invalidating every determination that departs in any respect from the original claim group description.

The judgment cites Drury [2020] FCAFC 69 with approval for the proposition that different groups within a larger claim area can hold distinct native titles. It also draws on the approach to "appropriateness" articulated in Mortimer J's own earlier reasons in Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 and in Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42, particularly the emphasis on the State's public responsibility and the weight to be given to its informed position.

Because the reasons stress that the s 84D(4) order is made "out of an abundance of caution" and that the Court would in any event have found no defect, later courts are invited to treat the discretionary order as an additional safeguard rather than an admission that authorisation was defective. The detailed endorsement of the BINM process and the re-authorisation resolutions provides a template for how large claims can be progressively resolved without repeated challenges to authorisation.

Still-open questions

The judgment leaves several practical questions unresolved. First, the precise inland boundaries in rugged hinterland country remain approximate; Dr Thompson's evidence at [3]-[6] of his response to State questions makes clear that mountain ranges, watersheds and creeks provide only general guidance and that "company" or "countryman" areas may exist between estates. Further consultation between neighbouring groups will be required to refine those lines in future determinations.

Second, the status of the remaining undetermined areas within the Cape York United #1 claim is expressly left open. The State has not accepted connection over all areas, and the present determinations do not pre-judge those issues. The re-authorisation resolutions limit the applicant's authority in relation to the balance of the claim, so fresh or further authorisation processes will be needed.

Third, the weight to be given to late objections from within a claim group when the State and the applicant have reached agreement remains fact-sensitive. The Court dismissed the interlocutory applications but noted that the objections came from within the groups rather than from neighbours. How such objections will be treated in later determinations where the evidence is less settled is not settled.

Fourth, the interaction between the s 84D(4) order and the statutory requirement in s 61 that the applicant be authorised "by all the persons in the native title claim group" is left for future cases. The present reasons proceed on the basis that a level of difference can be tolerated where it arises from the ordinary processes of establishing true membership. The exact boundaries of that tolerance are not exhaustively defined.

Finally, the judgment records that perfection is not the standard. Exactly how much notification, how many meetings, and what level of remote participation will suffice in future COVID-affected or logistically difficult authorisations is a continuing practical question for claim groups, representative bodies and the Court.

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:

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

THE COURT ORDERS THAT:

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:

There be a determination of native title in the terms set out below (the determination).
Each party to the proceedings is to bear its own costs.

DEFINITIONS AND INTERPRETATION

In this determination, unless the contrary intention appears: "Animal" has the meaning given in the Nature Conservation Act 1992 (Qld); "External Boundary" means the area described in Schedule 3; "High Water Mark" means the ordinary high-water mark at spring tides; "land" has the same meaning as in the Native Title Act 1993 (Cth); "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; "Local Government Area" has the meaning given in the Local Government Act 2009 (Qld); "Natural Resources" means: (a) an Animal, a Plant, or any other non-human life form; and (b) inorganic material; but does not include: (c) Animals that are the private personal property of any person; (d) crops that are the private personal property of another; (e) minerals as defined in the Mineral Resources Act 1989 (Qld); and (f) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "Plant" has the meaning given in the Nature Conservation Act 1992 (Qld); "Reserve" means a reserve dedicated, or taken to be a reserve, under the Land Act 1994 (Qld); "Spouse" has the meaning given in the Acts Interpretation Act 1954 (Qld); "Water" means: (a) water which flows, whether permanently or intermittently, within a river, creek or stream; (b) any natural collection of water, whether permanent or intermittent; (c) water from an underground water source; and (d) tidal water; "waters" has the same meaning as in the Native Title Act 1993 (Cth).

The determination area is the land and waters described in Schedule 4 and depicted in the maps 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.
Native title exists in the Determination Area.
The native title is held by the Uutaalnganu (Night Island) People described in Schedule 1 (the Native Title Holders).
Subject to orders 7, 8 and 9 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.
Subject to orders 7, 8 and 9 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.

THE COURT DETERMINES THAT:

The native title is held in trust.
The Uutaalnganu Aboriginal Corporation (ICN: 9606), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of s 56(2)(b) and s 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.

SCHEDULE 1 - NATIVE TITLE HOLDERS

The Native Title Holders are the Uutaalnganu (Night Island) People. The Uutaalnganu (Night Island) 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 Uutaalnganu (Night Island) group, from one or more of the following apical ancestors: (a) Sandy Pascoe; (b) Simon Ropeyarn; (c) Ku'aka Yalimuku; (d) King Fred (husband of Taltaninyu); (e) Taltaninyu (wife of King Fred); (f) Harry Mathers; (g) Old Short; (h) Maria (wife of Johnny Ilnkay Butcher); (i) Johnny Kulwilma; (j) Barney Marrott Senior; (k) Old Yeila Palwu'u; (l) Peter Underwood; (m) Nancy (mother of Peter Night Island); (n) Lizzie (wife of Charlie King, mother's mother of Douglas Ropeyarn); (o) Ada (wife of Charlie King); (p) Rosie (mother of Alick Niger (Naiga)); (q) Mother of Billy Chungo; (r) Utyaamu (Uchamu aka Osam aka Isagubi) (s) Mother of Charlie Bezai; or (t) Charlie Lockhart Senior.

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 Telstra Corporation Limited (ACN 051 775 556): (a) as the owner or operator 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 its telecommunications facilities; (c) for its employees, agents or contractors to access its 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 its telecommunications facilities in the Determination Area. (2) The rights and interests of Cook Shire Council: (a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be its Local Government Area: (b) as the: (i) lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not; (ii) grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not; (iii) party to an agreement with a third party which relates to land or waters in the Determination Area; (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; (d) to enter the land for the purposes described in paragraphs 2(a), (b) and (c) above by its employees, agents or contractors to: (i) exercise any of the rights and interests referred on in this paragraph 2 and paragraph 3 below; (ii) use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 2(c) above; and (iii) undertake operational activities in its capacity as a local government such as feral animal control, erosion control, waste management and fire management. (3) The rights and interests of the State of Queensland, Lockhart River Aboriginal Shire Council and Cook Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads. (4) The rights and interests of the State of Queensland 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. (5) 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 Fisheries Act 1994 (Qld); (b) the Land Act 1994 (Qld); (c) the Nature Conservation Act 1992 (Qld); (d) the Forestry Act 1959 (Qld); (e) the Water Act 2000 (Qld); (f) the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld); (g) the Mineral Resources Act 1989 (Qld); (h) the Planning Act 2016 (Qld); (i) the Transport Infrastructure Act 1994 (Qld); and (j) the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld); (6) 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. (7) 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) coastal waters; (d) stock routes; (e) beaches; and (f) areas that were public places at the end of 31 December 1993. (8) 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 area of land and waters: Commencing at the intersection of the eastern bank of the Lockhart River and Lloyd Bay, a point at Longitude 143.377116° East, Latitude 12.869645° South and extending south-westerly across the mouth of the Lockhart River until its centre point; then generally southerly along the centreline of that river to the intersection with an unnamed creek (Wachi Creek) at Latitude 12.997983° South; then generally westerly along the centreline of that creek to the intersection with an unnamed creek at Longitude 143.360605° East; then generally north-westerly, then south-westerly along the centreline of that unnamed creek to a point at Longitude 143.325933° East, passing through the following coordinate point: Longitude ° East Latitude ° South 143.342895 12.990563

Then due south to a point on the centreline of the Great Dividing Range at Latitude 13.210972° South; then generally southerly along the centreline of the Great Dividing Range until the intersection with the southern boundary of an unnamed road at Latitude 13.362296° South (Stoney Creek Road), further described as: Then generally southerly along the centreline of the Great Dividing Range until a point at Latitude 13.246570° South; then south to the northernmost northeast corner of Lot 450 on SP104554; then southerly along the eastern boundary of that lot until the intersection with the northern boundary of an unnamed road at Latitude 13.361150° South; then south-west along the eastern boundary of that road to a point on its southern boundary at Latitude 13.362296° South; then generally easterly, then south-easterly bisecting the headwaters of the Nesbit River, to a point on the centreline of the Macrossan Range at Latitude 13.373304° South, also being a point on the western boundary of Lot 17 on SP104551, passing through the following coordinate points: Longitude ° East Latitude ° South 143.408837 13.353059 143.434283 13.348215 143.461714 13.347977 143.467783 13.353562 143.469592 13.361251 143.473512 13.367131

Then generally south-easterly along the western boundary of Lot 17 on SP104551, also the centreline of the Macrossan Range, intersecting Cone Peak at approximate Longitude 143.491676 East, and onwards until a point at Longitude 143.492882 East, until the intersection with Cone Peak at approx. Longitude 143.491676° East; then easterly to a point on the eastern boundary of Lot 16 on SP104551 at Longitude 143.567011° East, Latitude 13.370487° South (Kaapakachingunuma) passing through the following coordinate points: Longitude ° East Latitude ° South 143.495767 13.382749 143.501651 13.383399 143.508108 13.383481 143.524521 13.380459

then north-westerly along eastern boundary of Lot 16 on SP104551 to the eastern-most point of Lot 17 on SP104551; then northerly along the eastern boundary of that lot to again Lot 16 on SP104551; then generally northerly then westerly along the eastern and northern boundaries of that lot, passing across the mouths of any creeks and rivers, back to the commencement point. (All Subject to Survey).

Data Reference and source Cadastral data sourced from Department of Resources, Qld (May 2021). Watercourse lines sourced from Department of Resources, Qld (May 2021). Mountain ranges, beaches and sea passages sourced from Department of Resources, Qld (May 2021). Mountain peaks and capes sourced from Department of Resources, Qld (April 2021).

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. Prepared by Department of Resources (25 May 2021).

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: Area description (at the time of the determination) Determination Map Sheet Reference Note Part of Lot 16 on SP104551 that falls within the External Boundary 1, 2, 3 * Part of Lot 17 on SP104551 that falls within the External Boundary 2, 3 *

*denotes areas to which s 47A 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: Area description (at the time of the determination) Save for any waters forming part of a lot on plan, all rivers, creeks, streams and lakes within the External Boundary described in Schedule 3, including but not limited to: (i) Lockhart River; and (ii) Eden Creek.

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 in relation to which one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) was done and was attributable to either the Commonwealth or the State, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth). (2) Specifically, and to avoid any doubt, the land and waters described in (1) above includes: (a) the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied; and (b) the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth). (3) Those land and waters within the External Boundary that were excluded from the native title determination application filed on 11 December 2014 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. (4) 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.

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 Uutaalnganu (Night Island) People. This determination is being made on the same day as a determination recognising the native title of the Kuuku Ya'u People. 2 The description "Night Island" is used in the evidence filed with the Court by some claim group members as well as by anthropologists, hence why I have retained it. It is also the English name for some important ancestors, such as Peter Night Island. Dr David Thompson, the main anthropologist who has worked in these determination areas, explains its origins in his 2017 report at [41]: The common reference of Uutaalnganu people as "Night Island" by themselves and others has its origins in the contact lugger period when a beche-de-mer base camp was located on the coast opposite Night Island (Chase 1980:218) and both the location and local people were known as "Night Island" in the early pidgin of the time. 3 Much of the Kuuku Ya'u and Uutaalnganu (Night Island) determination areas is freehold Aboriginal land under the Aboriginal Land Act 1991 (Qld) and is therefore held by land trusts under that Act. Most of the balance of the determination areas is subject to a deed of grant in trust for the benefit of Aboriginal peoples granted under the now repealed Land Act 1962 (Qld), held by the Lockhart River Aboriginal Shire Council. That is why it is agreed that s 47A of the Native Title Act applies to a large proportion of the determination areas. 4 The orders made today recognising the native title held by the Kuuku Ya'u and Uutaalnganu (Night Island) Peoples deserve the description of a landmark. The making of these orders, and the orders made today in the Kuuku Ya'u Determination, are the first successful outcomes of a process which has taken almost 7 years, since the Cape York United #1 claim was filed with the Court. The Cape York United #1 claim was an ambitious attempt to resolve all outstanding native title claims in Cape York. Save for some specified types of tenure which were excluded, the claim covers all land and waters within the external boundaries of the Cape York Representative Aboriginal/Torres Strait Islander Body Area, an area of approximately 79,421 square kilometres. It is the largest filed claimant application area wholly within Queensland. The orders are the culmination of a tremendous amount of work by a large number of people towards the resolution of native title claims and the recognition of native title across all areas of Cape York in which the existence of native title remains to be determined. These orders are the important first achievements in this process, and go some way towards repaying the patience and persistence of the Kuuku Ya'u and Uutaalnganu (Night Island) Peoples. 5 But the importance of today is also deeply personal. I can do no better than refer to the words of Mr G Butcher in his evidence before the Court at [123]-[124]. I believe the spirits of the ancestors still reside in the country. You can feel them sometimes when we go camping. The spirits feel happy when they see us come camping on our country. You can sense they are there with you. Sometimes, you might say something like "we here now, we ngarthi, we home!" to the spirits. Then they know we are home. When we go out on country that's when we do that. Everybody does that and sometimes the kids take fright. The spirits of the old people can give us good luck when fishing and hunting. During the night you feel like somebody is there and they are watching. When I get this feeling then I know it's the ancestors. Then I'll tell the kids don't make noise because someone is with us; our ancestors. 6 The Court's orders, and the long overdue recognition by Australian law, will help protect and preserve the country of the Uutaalnganu (Night Island) People so that this deep connection can also be protected and preserved. 7 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. These reasons should be read together with the reasons of the Court in this proceeding delivered orally on 23 November 2021, and subsequently published.

THE MATERIAL BEFORE THE COURT 8 The application for consent determination was supported by a principal set of submissions filed on behalf of the applicant on 22 October 2021. Supplementary submissions were filed on 28 October 2021. The State filed comprehensive submissions on 12 November 2021. The Court has been greatly assisted by the parties' submissions. 9 The applicant relied on the affidavit of Kirstin Donlevy Malyon. Ms Malyon, who is the Principal Legal Officer at the Cape York Land Council (CYLC) and has had the carriage of the Cape York United #1 claim, deposed to how the Uutaalnganu (Night Island) s 87A Agreement was approved, and to how the Uutaalnganu Aboriginal Corporation (ICN 9606) was nominated as the prescribed body corporate (PBC) for the Uutaalnganu (Night Island) Determination. Ms Malyon also annexed the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area. 10 The applicant also filed and relied upon an affidavit of Parkinson Wirrick, a legal officer with the CYLC, affirmed 22 October 2021. Mr Wirrick annexes to his affidavit a bundle of connection material in relation to both the Uutaalnganu (Night Island) Determination and the Kuuku Ya'u Determination. In relation to the former, that material comprised: (a) the witness statement of Father Brian Claudie dated 22 February 2019 and filed on 22 October 2021; (b) the witness statement of Mr Amos Hobson dated 4 March 2019 and filed on 22 October 2021; (c) the apical report of Ms Kate Waters dated 15 May 2020 regarding Billy Chungo and filed on 22 October 2021; (d) the apical report of Ms Waters dated 12 June 2020 regarding Utyaamu and filed on 22 October 2021; (e) the apical report of Ms Waters dated 9 November 2020 regarding Alick Niger (Naiga) and filed on 22 October 2021; (f) the apical report of Ms Waters dated 10 November 2020 regarding Charlie Lockhart Snr and filed on 22 October 2021; and (g) the apical report of Ms Waters dated 14 December 2020 regarding Charlie Bezai and filed on 22 October 2021. 11 The applicant filed, and relied upon, a second affidavit from Mr Wirrick, affirmed 26 October 2021, annexing two further documents in relation to both the Uutaalnganu (Night Island) Determination and the Kuuku Ya'u Determination: (a) a report from Dr David Thompson entitled 'Response to State Questions' dated 4 March 2019; and (b) a witness statement of Mr G Butcher, which was undated. 12 In addition, in relation to both the Uutaalnganu (Night Island) Determination and the Kuuku Ya'u Determination, the applicant had previously filed connection material on which it sought to rely for the purposes of the s 87A application: (a) the expert report of Dr Thompson entitled "Lockhart River Coastal Region" filed on 31 October 2017; (b) the amended expert report of Ms Waters dated 5 March 2018 and filed on 6 March 2018; (c) the supplementary expert report of Dr Thompson dated 4 March 2019 and filed on 22 October 2021; and (d) the affidavit of Mr G Butcher dated 9 December 2019 and filed on 6 March 2020.

THE CHANGE IN APPROACH IN THE CAPE YORK UNITED #1 CLAIM 13 It is appropriate to recount something of the history of the Cape York United #1 claim since it was filed in December 2014. The claim has been subject to intensive case management by the Court since its inception, but especially in the last few years, after a substantial change in approach that occurred around April 2020. It is important to take account of this history, and the change in approach, to understand why the Court considers it appropriate to exercise its discretion under s 84D(4) of the Native Title Act to hear and determine the two s 87A applications, despite any arguable defect in authorisation. 14 From its early days, given its size and complexity, the claim was divided for the purposes of connection assessment and case management into nine "report areas", the report areas being based on a geographical distribution of connection assessment work between a number of anthropologists. The report areas were initially, and indeed until recently for the Uutaalnganu (Night Island) Determination and the Kuuku Ya'u Determination areas, described by reference to the names of the anthropologists who wrote the corresponding connection reports. Thus, the Uutaalnganu (Night Island) Determination and the Kuuku Ya'u Determination areas were within the "Thompson report area", Dr David Thompson being the anthropologist retained by the CYLC to work on the connection assessments for these areas. 15 In the first half of 2018, the applicant was directed to file a Statement of Issues, Facts and Contentions, and the State was directed to file a response. From these documents emerged a critical issue about whether, as a matter of fact, the whole of the Cape York United #1 claim group was a single society and, if so, whether the members of that society together possessed a single native title for the purposes of s 225(a) of the Native Title Act: see generally Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; 276 FCR 203 at [25]-[34]. The applicant and the State adopted different positions on this issue. Close case management continued, and the State filed a very detailed document in July 2019 in respect of all the nine report areas, setting out the facts it considered were open to the Court to find were established if the materials provided to the State to that date were to be tendered. Understandably, for some report areas, the connection materials were not as advanced and far less was able to be confirmed, or agreed, by the State than what could be confirmed or agreed for other areas. It also became apparent that the "society issue" might be a major impediment to any consent determination process moving forward. 16 Therefore, in September 2019, the Court made orders setting down for hearing separate questions to identify the native title holding group or groups with respect to a "test area", which included the Thompson report area. Programming orders were made, and it was clear the hearing, even if confined to the test area, was going to take many months and be extremely expensive and resource intensive. Sensibly and fortunately, an alternative course was agreed upon as between the State and the applicant. 17 This alternative course was based on the parties' acknowledgment that across the Cape York United #1 claim area, there were different groups that held different native titles, including in the test area. In April 2020, the Court made orders vacating the separate question hearing and providing workplans to progress, sequentially, the native title claims within each of the nine report areas towards consent determination. As the State has made clear in its submissions, that agreed course does not, yet, mean that there will be consent determinations over all areas within the Cape York United #1 claim. There are still some areas for which the State has not accepted connection. But the change in course, towards sequential determinations by consent covering areas of land and waters to which particular groups are accepted to have a connection and otherwise meet the requirements of s 223 of the Native Title Act, was a welcome, constructive and positive development. The applicant and the State are to be congratulated on being able to change course like this and to embark upon a cooperative resolution of the claim. 18 That said, progress to date on this approach has not been without its challenges, including in the two areas set down for consent determination today. But progress has been made, and today is a landmark event. 19 From April 2020, the parties moved to a time- and resource-intensive process which involved, progressively through the nine report areas, the applicant proposing to the State what it contended were the relevant native title holding groups, the composition of those groups, and their geographic extent. This is what Ms Malyon describes in her affidavit as the Boundary Identification Negotiation and Mediation process. The BINM process had two stages. First, a desktop stage, in which the applicant would put forward proposals based on the ethnographic evidence already produced for the proceeding, and the State would respond. Second, a fieldwork stage involving consultation with the relevant peoples. Ms Malyon's evidence discloses that considerable efforts by employees of the CYLC were made in this latter stage, to try to ensure the right people were contacted and spoken to. 20 Importantly for today's orders, this was the process undertaken for the Uutaalnganu (Night Island) and Kuuku Ya'u claim groups. As a result of this process, and after consultation with, and decision making by the respective claim groups, the State and the applicant agreed that these groups held their respective separate and distinct native titles, and also agreed the composition of both groups, and the boundaries of their country.

The Uutaalnganu (Night Island) s 87A agreement 21 Ms Malyon deposes to what I consider to be a methodical process undertaken by the CYLC with the Kuuku Ya'u and Uutaalnganu (Night Island) native title groups to notify group members of the meetings to authorise the s 87A agreements. These meetings were held on 16 and 17 September 2021 respectively, and resolutions were passed approving the agreements. 22 Like many authorisation processes within native title groups, not everyone may agree with the outcome. Native title outcomes for consent determination do not depend on every single claim group member agreeing. They depend on either the use of a traditional decision making process if one exists, or (as is usually the case) if one does not, on a decision making process being agreed and adopted and a decision being made in accordance with that agreed process. Once decisions are taken, unless there is a legal problem with those decisions, the decisions made at these meetings are the decisions the Court will rely upon in making orders recognising native title. Finality is an important value in the Australian legal system and that is especially so where property rights such as native title are concerned. Disputes must be resolved. In native title, the meeting processes which lead to authorisation of claims, agreements and determinations are designed to do that. 23 I accept that in the unusual circumstances of the Cape York United #1 claim, and its change of course, the BINM process which Ms Malyon describes, and the several stages in the authorisation of the s 87A agreement for each native title holding group, assume more prominence. The BINM process can be described as a "grass roots mediation process" even if members of the claim groups have a variety of opinions about whether it was a good or bad process. 24 The BINM process was localised in nature. A range of steps was taken to ensure wide public notification through a variety of media, including social media. People were invited to attend in person, or using remote technology. Until a week or so before these determinations, the Court was not notified of any formal objections to the authorisation process or to the form and contents of the proposed determinations. 25 However, on 15 November 2021, the Court received an interlocutory application to join the Kuuku Ya'u Aboriginal Corporation RNTBC and an interlocutory application to join two individuals - a descendant of the Kuuku Ya'u People and a descendant of the Uutaalnganu (Night Island) People - as respondents to the Cape York United #1 claim. The applications were made on the basis of complaints concerning apical ancestors for the Kuuku Ya'u and Uutaalnganu (Night Island) groups, disputes about at least one boundary for the Kuuku Ya'u claim, disputes about the correct PBC for the Kuuku Ya'u determination, and allegedly inadequate communication from the CYLC in relation to the determinations. Complaints were also made about the s 87A authorisation process and the adequacy of travel assistance to claim group members. 26 In oral reasons delivered on 23 November 2021, after a hearing on 22 November 2021, the Court dismissed these applications and ordered that the consent determination hearings proceed. 27 These are objections from within the Kuuku Ya'u and Uutaalnganu (Night Island) groups, not from their neighbours. The absence of any formal objections from neighbouring groups provides a sufficient basis for the Court to infer that the area proposed to be recognised as Uutaalnganu (Night Island) is appropriate and accepted by Uutaalnganu (Night Island) People's neighbours.

Amendments to the authorisation of the Cape York United #1 applicant 28 The changes in the course of the proceeding which I have described above had another consequence. That was the need to go back to the various native title holding groups to amend the authorisation of the Cape York United #1 claim applicant as it was initially given. 29 The original authorisation of the applicant is in evidence, included in annexure KDM-8 to Ms Malyon's affidavit. At page 43 of the affidavit, under the heading "Limitations on the authority of the Applicant", the following statement relevantly appears: the Applicant has no authority to make any decision: (i) to approve any consent determination in the proposed Claim[.] 30 Thus, the adopted course of sequential s 87A agreements and consent determinations was not a process the applicant was authorised to undertake. A new authorisation was required. This in itself was a huge task - notifying, co-ordinating and conducting a series of meetings across the Cape York United #1 claim area, and outside it (e.g. in Cairns). There were information meetings held across Cape York, and then the authorisation meetings themselves. All meetings were publicly notified through a variety of media, including social media, emails and telephone calls, and in-person communications. People were invited to attend in person or by remote technology. Organisations such as the registered native title bodies corporate, Aboriginal Corporations and Land Trusts under the Aboriginal Land Act 1991 (Qld), and the 6 Aboriginal Shire Councils within Cape York were also emailed notifications to put up on noticeboards and distribute. Ms Malyon deposes (at [25]): I attended, either in person or by video-conferencing, 12 out of 16 of the Authorisation Meetings. David Yarrow of counsel attended, either in person or by video-conferencing, 14 out of 16 of these meetings. At each of the meetings that I did not attend, a Legal Officer employed by CYLC attended the meeting. The meetings were also attended by other CYLC staff, including staff from the Community Relations and Dispute Resolution Unit, the Anthropology Unit, consultant anthropologists and administrative staff. 31 As to the outcome of the meetings, Ms Malyon deposes (at [29]-[30]): A total of 165 people voted for the proposed resolutions, no people voted against them, and 3 people abstained. A copy of these resolutions is annexed hereto and marked "KDM-8". The resolutions are the same as those contained in the Applicant's re-authorisation workplan filed on 16 March 2021. At two meetings (Hopevale and Pormpuraaw) no vote was taken on the resolutions by the persons present, as no motion was moved to adopt the resolutions. A total of 15 people attended these 2 meetings. 32 The applicant submits that, although the two meetings at Hopevale and Pormpuraaw did not make or pass any resolutions, this did not impact upon the effectiveness of the resolutions as a whole. I accept that submission, which is supported by detailed reasoning in the State's submissions (at [30]-[32]) that need not be repeated here, but which I find is persuasive, and correct. 33 The new authorised limits on the authority of the applicant are set out in the new authorisation Resolutions 4.1 and 4.2: 4.1 The authority of the Applicant is limited as follows: (a) the Applicant has no authority to make any decisions (including decisions about land use, management or protection) about particular land or waters within the proposed Claim Area - decisions in respect of those matters are to be made by the persons who hold or may hold native title in relation to the particular land or waters; (b) the Applicant has no authority to make any decision to approve any consent determination in the Claim (whether it deals with the whole of the claim area, is otherwise made in full settlement of the CYU#1 Claim or at all) other than as set out in Resolution 4.2; (c) the applicant has no authority to change the solicitor for the Applicant in the Claim; (d) decisions in respect of the matters in paragraph (b) and (c) are to be made by the Native Title Claim Group; and (e) the Applicant's authority is otherwise confined to matters arising under the Native Title Act in relation to the Claim. 4.2 It is a condition of the Applicant's authorisation that the Applicant must not fail to agree to a proposed agreement under s 87 A of the NTA for a determination to be made in relation to part of the Claim Area (s 87 A agreement) if, and only if, the following conditions are satisfied: (a) a draft of the proposed s 87 A agreement has been prepared by the Applicant and the State of Queensland; (b) the Applicant, with the assistance of CYLC, has notified each group of persons described in the draft s 87 A agreement as the persons who will be determined to hold native title in the area to which that particulars 87A agreement is intended to apply (the "proposed native title holders") of the date and location of a meeting (or meetings) for each group of proposed native title holders to consider the draft s 87 A agreement; (c) at each meeting of a group of proposed native title holders, the Applicant, with the assistance of CYLC, has explained the meaning and effect of the draft s 87A agreement; (d) at each meeting of a group of proposed native title holders, a resolution is passed that the proposed native title holders as a group agree to the draft s 87 A agreement; and (e) the resolutions referred to in (d) are passed following a process of decision making chosen by each group of proposed native title holders. 34 For the reasons set out by the applicant and the State in their submissions, the Court finds the applicant's agreement to the Kuuku Ya'u and Uutaalnganu (Night Island) consent determinations falls within the scope of the authority given to it by the re-authorisation process. 35 The Court recognises the size of the task that faced the CYLC and its staff, as well as the applicant's legal representatives in this re-authorisation process. The task was performed as methodically and diligently as could reasonably be expected. It was performed under challenging restrictions and risks due to the COVID-19 pandemic, and the Court takes account of this. Again, that is not to say it was perfectly done. Perfection is not the standard. I am satisfied reasonable and appropriate efforts were made to notify claim group members, to provide them with information and to give them reasonable opportunities to attend the relevant meetings and information sessions, to voice their opinions and contribute to the decision making process.

Section 84D 36 Notwithstanding the Court's satisfaction that the amendments to the authorisation of the applicant occurred through an appropriate process, there remain two potential difficulties. The first stems from differences in the claim group descriptions between the original claim and the proposed determinations. The second stems from the fact the State has not yet accepted connection over all areas within the Cape York United #1 claim area.

Claim group descriptions 37 The native title claim group for the Cape York United #1 application is defined in the Form 1 originating application by reference to named apical ancestors, which is one of the most common methods of defining a native title holding group. Both the Kuuku Ya'u and the Uutaalnganu (Night Island) s 87A agreements and proposed determinations contain descriptions of native title holders which include apical ancestors not contained in the Form 1 originating application. 38 As I explained in Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 at [109], differences of this kind between an initial application under s 61 of the Native Title Act and a proposed determination of native title are "wholly commonplace". That is because, after a native title application is lodged, as further inquiries are made of claim group members, and as further research is carried out, factual matters about the ancestors of the claim group may become clearer, or change. That is to be expected when what is being examined are the generational histories of families which have often been torn apart and violated by European settlers, where social structures have been misunderstood and countless individuals have been re-named and misnamed by foreigners who did not wish to learn, or deal with, their real names and identities. 39 Yet, as the issues raised in Smirke (No 3) illustrate, and by reason of decisions of this Court, in particular the Full Court decision in Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355, the wholly commonplace occurrence of changes in apical ancestors is capable of being construed as introducing an impediment to the making of a determination of native title by the Court, even by consent. On one reading, Clifton stands for the proposition that there must be absolute identity between the claim group as defined at the time the s 61 application was authorised, and the claim group as defined at the time of determination of native title. That is, the claim group definition can contain no new or different apical ancestors, because new or different apical ancestors would change the composition of the claim group and result in a differently composed group from the one which authorised the s 61 application. 40 In Smirke (No 3), I found that Clifton should not be read so literally. With respect, in the State's submissions on the Kuuku Ya'u and Uutaalnganu (Night Island) determinations, the reasoning is well summarised: The most recent (and, with respect, comprehensive) consideration of this issue is found in the decision of Smirke on behalf of the Jurruru People v State of Western Australia (No 3) (Smirke). In that case, Mortimer J was required to determine whether the Court has jurisdiction to make a determination that native title exists and is held by a particular group that includes persons who did not authorise the application for the determination in question. Although Smirke involved a determination made in a litigated context, much of her Honour's analysis is applicable to consent determinations. In particular, Mortimer J's holding that the Court has jurisdiction and power to make a determination of native title that differs substantially from the terms of an application made under s 61(1) of the NTA - with no need for either re-authorisation of the application or express authorisation of the determination ahead of it being made - applies to both a determination made after trial and a consent determination under ss 87 and 87A of the NTA (although in the latter case, specific authorisation of the proposed determination may be necessary to persuade the Court that it is appropriate to make such a determination). Importantly, the path of reasoning followed in Smirke included the following salient points: (a) When the holding in Clifton is read in context, it is clear that the Full Court's focus was on a situation where two competing groups claim the same land and waters but only one group had made an application under s 61. The "critical" procedure was the making of a s 61 application, without which a group could not secure a determination in their favour. (b) The Full Court (at [37]) expressly qualified its holding, by outlining the kinds of disputes that are "an inherent aspect" of the determination of a s 61 application, the resolution of which may lead to a determination of native title by the Court departing from the terms of an authorised s 61 application. These are disputes: (a) as to the true membership of a native title claim group; (b) concerning the boundaries of the area over which the claim group holds native title; or (c) as to the nature and extent of the native title, rights and interests held by the claim group. (c) There was no suggestion by the Court in Clifton that s 213 is to be read literally. The provision operates on the whole of the procedures in the NTA, which includes s 84D(4). Further, the holding in Clifton cannot be read literally, because (bold added): If it were to be, it would be incompatible with all the kinds of circumstances to which the Full Court referred at [37], each of which would fall foul of a literal reading of this passage. For example, where an application by a group includes descendants of 5 apical ancestors and those people authorise a claim, but a determination is proposed in respect of 7 apical ancestors, the "particular group" in whose favour the determination is proposed is not the same "particular group" as the one who authorised the claim. Yet this is a wholly commonplace occurrence, in terms of difference between group members as identified in an application, and group membership as identified in a determination. (d) The fact that neither the Court nor participating parties have ever seen any difficulty in making a determination of native title under s 87 or s 87A where the proposed determination differs substantially from the terms of the s 61 application, confirms that Clifton should be understood in the way explained above. What is critical, and fundamental, is that there must be an initiating process, authorised, by which a claim group seeks a determination of native title. The NTA then gives considerable flexibility to the Court and to the parties to shape the content of the ultimate determination of native title, provided compliance with s 94A and s 225 occurs. (Citations omitted.) 41 The applicant seeks an order pursuant to s 84D(4) in its submissions. On the analysis extracted above, the State submits (at [25]) that the inclusion of additional apical ancestors in the proposed Kuuku Ya'u and Uutaalnganu (Night Island) consent determinations does not give rise to a defect in authorisation. 42 While I tend to agree with the State's submissions, I consider that the validity of these consent determinations, as the first of what is hoped to be a large number of consent determinations to follow within the Cape York United #1 claim, should not be attended by any doubt. Therefore, out of an abundance of caution, I propose to make an order under s 84D(4) in each of the Kuuku Ya'u and Uutaalnganu (Night Island) consent determinations.

No acceptance of connection over the whole Cape York United #1 claim area 43 In its submissions, the State points to a further potential difficulty in the Court accepting that both determinations have as their source properly authorised claims for native title. This difficulty is also related to the change of course I have discussed above. A consequence of that change of course was that, while the regional Cape York United #1 claim was authorised by the Cape York United #1 claim group as a whole, the s 87A agreements for the Kuuku Ya'u and Uutaalnganu (Night Island) consent determination areas were authorised only by the Kuuku Ya'u and Uutaalnganu (Night Island) groups. And, so far, the State has not accepted connection in relation to all remaining areas of the Cape York United #1 claim, so it cannot be unequivocally stated that all members of the Cape York United #1 claim group, as described in the s 61 application, are "native title holders". The fulfilment of that statement must await further agreement on connection in other areas within the Cape York United #1 claim area. 44 There is a line of authority in this Court which has been taken to stand for the proposition that all persons who actually hold the native title must authorise the making of the claim: see Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1188]-[1190] (Lindgren J); Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1 at [913] (Finn J); Ashwin (on behalf of the Wutha People) v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 at [181] (Bromberg J). In other words, the group as defined after investigations have occurred, and after conclusions are reached, about who are the right people for country. Or to put it another way, it is the group as identified at the end of a process - which may have been a process of many, many years, that must be the group which authorised the claim. If there are changes to the claim group description as a result of evidence from lay witnesses or expert opinion, or both, then an outcome of this nature is unlikely to be achievable. In Smirke (No 3), I explained what an unsatisfactory and potentially unjust approach to the Native Title Act this was, and not one which was required by the legislative scheme in the Native Title Act, read as a whole. 45 The State is, with respect, correct in its submissions at [27] to describe my view as being that that the accepted construction of s 61 must be understood as tolerating a level of difference between the actual holders of native title and the members of the claim group who initially authorised the claim, where the difference is due to the kinds of matters that the Full Court in Clifton accepted are part and parcel of any determination of a s 61 application, such as the "true membership" of the native title claim group. 46 Therefore, where the descriptions of the native title holders in the proposed Kuuku Ya'u and Uutaalnganu (Night Island) determinations vary from the descriptions in the Cape York United #1 application under s 61, a level of difference can be tolerated, and differences of that kind do not undermine the core processes and requirements of the Native Title Act. That is because what is occurring in these determination areas is that smaller group configurations are being identified generally from within the larger claim group, and most of the native title holders for those smaller group configurations will be members of the group which authorised the Cape York United #1 claim in 2014. As the State submits, there may be minor discrepancies because of the more detailed evidence and research concerning apical ancestors, but these are the kinds of differences the native title application process is designed to sort through - they are the "true membership" kinds of issues. 47 However, as with the first question about whether the determinations are being made in relation to a native title application that has been authorised in accordance with the Native Title Act, out of an abundance of caution I propose to make an order under s 84D(4) in each of the Kuuku Ya'u and Uutaalnganu (Night Island) determinations. 48 It is plainly in the interests of the administration of justice to do so, in circumstances where the overall Cape York United #1 claim is gargantuan, and has already consumed seven years' worth of resources, mostly sourced from public funds. Substantial, dedicated and methodical efforts have been made to comply with the requirements of the Native Title Act in each step along the way to these first two determinations. Despite significant factual and legal challenges, the two key parties have navigated a consensual path to the recognition of native title for the Kuuku Ya'u and Uutaalnganu (Night Island) groups. All other respondents have been consulted and given opportunities to participate in the process as it has progressed. They have been included in steps in the complex timetables. All consent to the Kuuku Ya'u and Uutaalnganu (Night Island) determinations. If ever there was a situation in the Court's native title jurisdiction where a favourable exercise of discretion by the Court is appropriate to ensure resolution of a claim to which all parties agree, this is that situation.

THE CONNECTION OF THE UUTAALNGANU (NIGHT ISLAND) NATIVE TITLE GROUP TO THE DETERMINATION AREA, THROUGH THEIR TRADITIONAL LAW AND CUSTOM 49 Dr David Thompson has worked with the peoples of this region for a very long time. In the introductory sections to his 2017 report, he states that the report draws upon anthropological, linguistic and historical research undertaken by him, and by other researchers, over the past 47 years in the Lockhart River region, including the research undertaken by Professor Athol Chase in the 1970s, which led to Chase's PhD thesis in 1980. Plainly, all this work pre-dated the Native Title Act. 50 In his 2017 report, Dr Thompson describes the territories and what he calls the "vital society" of four language-named groups of the Lockhart River Coastal region: the Wuthathi, Kuuku Ya'u, Uutaalnganu ("Night Island") and Umpila peoples. He explains (at [20]) that: These four language-named groups also form a wider coastal socio-cultural grouping called variously Pama Malngkanichi "sandbeach people", Pama Pakaychi "down-below people" or Pama Kawaychi "eastern people" to distinguish them from their inland neighbours. 51 And at [40] he explains the origins of the Uutaalnganu group's language name: The Uutaalnganu people have been described as pama yi'achi, "people of the middle" (Chase 1984:113). The name Uutaalnganu, which means "people who use the verb uutaalngana for "look", is used as a distinguishing feature of its speakers. 52 Dr Thompson describes the territory of the Uutaalnganu in this way (at [44]): Research by Professor Chase and myself with elders and neighbouring groups in the 1970s and since 1995 has established that the Uutaalnganu group of claimants (aka 'Night Island') identify themselves, and are identified by other Aboriginal people of the north-eastern and north-central Cape York Peninsula region, as the group of people whose native title rights and interests under Aboriginal law and custom, are to that area of land associated with the Uutaalnganu language dialect. Their coastal land extends from an island called Nguyupalka in the Lockhart River mouth southwards to a coastal point approximately two km north of Friendly Point, and the littoral region extends west to the mountains where it meets the territory of the Kaanju peoples. The sea territory (including islands, reefs, cays and sandbars) extends east to the Great Barrier Reef. This Uutaalnganu territory consists of eleven clan estates extending along the coastal littoral. 53 It is not possible to extract all of the deep and wide research contained in Dr Thompson's 2017 report, but it is to be hoped that it will prove a valuable resource for the peoples of the Lockhart River Coastal region into the future. 54 Dr Thompson's more recent work, in response to questions from the State, covers two matters of significance to both the Uutaalnganu (Night Island) determination and the Kuuku Ya'u determination: namely, boundary identification and accurate identification of apical ancestors. 55 One of the matters which has proved challenging, and is likely to continue to prove challenging, is the identification of boundaries between the country of one group and another. While this is a requirement for recognition of native title, the need to draw "hard" boundary lines is one of the features of the Australian native title system which has some disconformities with how rights to country are understood and observed in the traditional law and customs of the groups such as those within the Cape York#1 claim. It is a challenge not specific to that region. 56 As Dr Thompson explains at [3]-[6] in his response to State questions: Inland boundaries of the coastal Kuuku Ya'u, Uutaalnganu and Umpila peoples are those areas of country where these groups adjoin the country of their inland neighbours, namely Southern Kaanju and Northern Kaanju, and to a lesser extent, Wuthathi and Lamalama. Whereas coastal points are more readily identified as rivers, creeks or other geographic features through greater coastal dwelling and gathering of coastal resources, inland areas are less accessible along the rugged hinterland of this region. While mountain ranges, watersheds and creeks may be general boundaries, it is not so simple to draw a line on a map. Many rugged inland areas are not readily accessible as I explain below and it has not been feasible for neighbouring groups to identify continuous boundary lines in every place. Peter Sutton has expressed the situation well for the tropical north. There are different degrees of boundedness about the edges of even a single Aboriginal estate in the tropical north, where such things have been mapped on the ground in fine detail. It is quite typical for there to be fine and clear demarcation of the edge of an estate at points along a beach or river frontage, where one creek entering the water body is in one estate, and a creek a few score metres away is in the next estate; or where mangrove stands, for example, mark the point where the beachfront sector of an estate comes to an end. Country abundant in vine thickets and permanent lakes may also have rather precise estate boundaries along the edges of rich floodplains and ridges. .... The very same estates, however, may have their hinterland stretching back into a set of watercourses arising in hills or in relatively monotonous sclerophyll forest uplands, where the watercourses are the bones or structural definers of the insides of estates, but where the edges of estates are heavily blurred. Between these smallish drainage systems (frequently sub-systems) are the intermediate zones usually defined 'company' land held by those who hold the adjacent drainage systems (1995:51). In regard to Sutton's reference to 'company land', Chase refers to them as 'countryman groups' that shared ["]a common area as a homeland in the days before European influence." These origin localities are said to consist of a number of estates which are "boxed up". The agglomeration includes a set of estate groups who, in precontact times, formed "one camp" or a community throughout the year at a focal camping site (Chase 1980:219). In pre-Mission and early Mission periods, Aboriginal people walked long distances through both coastal and inland regions, interacting with neighbouring clan groups, often socially by marriage ties (Chase 1980:176) or having a holiday in another's country such as between inland bush and the coast. Examples occur in my report at [359], [362], [373], [408], and the accounts in Appendix 5: 5.4.1 and 5.4.2. This travel was customarily by established walking tracks while it is likely that rugged or impenetrable country was much less accessed if at all. Mapping of much inland country in this east coast region is an arduous task due to difficult terrain while the boundary points that have been identified are in accessible places such as Browns Creek on the main Road from Wenlock to Lockhart River and in relation to pastoral lease country such as in the Bromley claim or in general terms such as a range or watershed. It has not been very practical or even necessary for detailed consultations and inland mapping expeditions to be undertaken in recent times. With those caveats in mind, I can roughly indicate boundary regions as requested but the principle remains that in practice there are no gaps between neighbouring groups, whether clear or not, and any indication of boundaries are subject to further consultation and agreements between the neighbouring groups concerned. Adjoining areas may be implicit, perhaps disputed, but never abandoned as there are always successors to take responsibility for country that becomes vacant of descendants. (See Chase 1980:221-222). 57 Another matter which has been the subject of close scrutiny by the State before agreeing to the proposed native title determination has been the identification of apical ancestors. I have explained above why in a legal sense that is important. Of course, and more centrally to the nature and purpose of native title, it is critical to how the Uutaalnganu (Night Island) People decide membership of their group, and critical to how people conceive of their relationships to country, and to each other. Like many other steps in the complex process of satisfying all the requirements of the Native Title Act, the identification of apical ancestors produces strong emotions and genuinely held different opinions. Since this topic is about people's families, that is a very human and understandable reaction. It can also be a tremendously difficult subject for Aboriginal peoples, whose families have been torn apart by the policies and practices of European settlement. 58 In his responsive report, Dr Thompson discusses the long and careful process of compiling a picture of the apical ancestors for Uutaalnganu (Night Island) country. These extracts include his account of the same process for Uutaalnganu (Night Island)'s neighbours, the Umpila people. At [50]-[58], he explains: As noted in my report at [689-690], evidence for apical ancestors and their descendants has been compiled over a long period of time including from old people in the 1970s who lived on country before the Lockhart River Mission began in 1924. Professor Chase has worked extensively with Uutaalnganu and Umpila families since 1970 and he recorded primary evidence from them, which I have expanded on in my research since 1995. Professor Rigsby also assisted from his researches with Lamalama and Umpila groups. During the mapping trips of 1975-76 to Uutaalnganu and Umpila countries as described above [24-26], the anthropologists Athol Chase, Peter Sutton and John von Sturmer recorded site names and family associations with particular estate regions along the coast. I as linguist also made my own record of site names and associated families. These records from the elders of the time and the knowledge passed on to the descendants provide primary evidence for current cultural knowledge among the families of these two language groups. During the 1970s, including the Umpila mapping trip, I recorded cultural, historical and life stories from old people and younger adults that included information about their country connections. During linguistic research in 2010-2013, and subsequent research for the CYU#l application, I interviewed and recorded family stories, histories and genealogies from elderly Uutaalnganu and Umpila men and women (most now deceased) that confirmed ancestors and country connections. The linguist Clair Hill undertook PhD research at Lockhart River commencing in 2002 and recorded significant language material from elderly informants. In a collection of stories in language, she recorded brief biographies of a number of Uutaalnganu and Umpila speakers (Hill 2014:10-13). The following extracts indicate the specific knowledge of their affiliations. Marla Butcher (deceased) [A descendant of Charlie Captain]. Well, my father come from Blue Mountain and my mother come from Leo River. I was born in Old Site, Lockhart River Mission. My father's tribe is Apan and my mother from Umpila and grandfather from up Blue Mountain. That's my father's country and my mother's. I was born in Old Site, I grew up in Old Site. Dorothy Short (deceased) [A descendant of Tommy Clarmont and George Brown]. I born at the Old Mission but my tribe in Umpila. My father comes from Nesbit River and my mother from Pathaku (Sister [Chester] River). My mother's story is miiku (python) and my father's story is wunta (wind). Susie Pascoe [A descendant of Jimmy, father of Douglas Ropeyarn]. I like to say about where my parents come from. My father's mother come from Night Island. His daddy come from Umpila way, a place called Leo River. My mum's parents come from Kuuku Ya'u. Minnie Pascoe (deceased) [A descendant of George Rocky2]. My mother come from Pascoe - Kuuku Ya'u, and my father come from Rocky [Umpila]. I born Old Mission. Irene Brown [A descendant of Old Short]. My mum come from Pascoe. [Kuuku Ya'u]. Dad from Night Island [Uutaalnganu]. I was born in Old Mission. We old ladies from there. My tribe from Night Island, two ways from Kuuku Ya'u and from Night Island. Winnie Claudie (deceased) [A descendant of Topsy Clarmont]. My mother from Pathaku [Umpila]. My father from Chinychanaku (Night Island) [Uutaalngaanu]. I was born at Old Lockhart and went to school there. I talk Umpila like Maria Butcher and Dorothy Short. Elizabeth Giblet [A descendant of Yi'alma, father of Bob Tongali]. Well my father from Umpila, Leo River. In language we call that place Mathamathaku. And my mother come from up Apan way. I speak Umpila language. When contentions have arisen concerning particular family rights, further research has been undertaken. Regarding the connection of Warradoo and Tucandidgee families to the Massey River region, an archival report records the birth of Mickie Tucandidgee at Massey River in 1894 and also of Billy Warradoo born at the Massey River in about 1918 (prior to the Mission commencement in 1924). Bruce Rigsby also recorded a comparable collection of Umpila family histories and genealogies (of which I have copies) during five weeks research for the Umpila-Lamalama native title sea claim in late April to early June, 1997 (Rigsby 2009). The family of Peter Night Island who was removed from country has had Uutaalnganu connection of his mother confirmed from Tindale and Palm Island records. The Singleton family's Umpila connection has been the subject of some contention but their connection was clarified and confirmed in extensive research undertaken by Bruce Rigsby in 2005 including search of Tindale's and Birdsell's records. During my research for my Cape York United #1 report for the Lockhart River region, I met several times with Uutaalnganu and Umpila groups at Lockhart River. I reviewed with them charts of their apical ancestors and descendant families and discussed estate affiliations. Both groups confirmed the list of apical ancestors as provided in [701] and [703] of my report without dissension. I note here an amendment to [701] in regard to Uutaalnganu estate 4 that includes the old Mission site. In genealogical work I have located one living descendant of King Fred and Taltaninyu for this estate, his great, great granddaughter, Evelyn Sandy. Due to the birth of so many Uutaalnganu people at the Mission site, all Uutaalnganu are given social and historical connection to this estate. In my opinion, the apical ancestors of Uutaalnganu and Umpila language-named groups are sufficiently verified by the long-standing oral knowledge provided by deceased and living elders and confirmed by current members of these groups. (Footnotes omitted.) 59 Finally, although the Court is not assessing this evidence in the way it would for a contested trial about connection, it would not be right for these reasons to omit some of the evidence of claim group members. It is their accounts and stories, of their lived experiences and those of their elders and ancestors, which provide the foundation for any determination of native title. They live and understand their law and custom, and how it connects them to their country. 60 The connection material filed in support of the Uutaalnganu (Night Island) determination included evidence from several claim group members. Two are Mr G Butcher, who has passed away, and Father Brian Claudie. 61 Father Claudie has connections to four areas of country: to Payamu, which he describes as the sacred area for the Rainbow Serpent, near Tin Creek and the Pascoe River. He is connected to that country through his father's uncle, Jimmy Doctor, and his grandmother, Minnie Doctor. Second, Kanthanampu country (as a Kukuu Ya'u person), through his grandfather, Barnie Claudie. Third, the area he calls Night Island, the European name for Uutaalnganu. That connection comes through his grandfather, Jack Giblet. The fourth is Umpila country, where his connection comes through his maternal grandmother, Topsy Clarmont. During the interlocutory hearing, Father Claudie spoke to the Court. My impression of him was that he was serious and thoughtful elder for his communities. 62 Father Claudie describes Uutaalnganu (Night Island) country as going down to Stony Creek. His totem for that country is "the kangaroo, the wallaby". At [47] of his witness statement, he describes a totem in this way: The totem is set by the elders, because they knew about where the totems are. For example, the elders knew wallaby was the totem for Night Island because there were lots of wallaby around, especially near Night Island. A totem represents the land in that area; it comes from the land. My grandpa - my Mum's Dad - and uncle Robert, uncle George and uncle David told me about this. 63 At [57], Father Claudie offers this description of his people: We are coastal people, my people. We are different from the inside people. In language we call them Kanaji people - 'on top' people, people who live inland in places like Wenlock, Coen and those type of places. We speak different languages but we still understand each other. Some of our laws were different. Inside people when they dance corroboree they use bark to hit on the ground, but we would use the drum and clapsticks. Some rules were similar, like the rules about marriage. Now the connections are all over Cape York. Now the bloodline is running all over. 64 At [29]-[30], [67]-[68], [79], and [91]-[94], he describes how he learned about his country and his law and custom, and how it is passed on: We children would follow the elders - wherever they wanted to go, we would go, and they would teach us what to do. We would meet up with other groups of people - northern people, southern people, all the tribal people. We would talk about cultural things, especially the land and the sea, and where we were going to go camping. We would sit together and listen to the elders. This is all in my memory - what I have been told by my old people, my grandpa and my grandmothers. When I was a very little fella, I met up with my little grandfather who was Barney Small. I would also go out on country with my big uncle Billy Clarmont, Tiger King, my Dad, my wife's Dad Jimmy Doctor and his brother William Doctor, Michael Sandy, Alex Sandy and Harry Sieu - I called them all grandfather. They taught me to dance, to hunt, and to speak language. They told me about everything; about bush tucker, seafood, hunting wallaby, everything. My grandfather Charlie Omeenyo was my grandmother Topsy Clarmont's brother, and we spent a lot of time together. All my life I was among the elders listening to them and the language they were speaking; the words of their customary law. When they spoke language they would speak it very deeply, meaning that they always spoke the language and they pronounced it properly so the younger generation could learn to speak the language the same way. Even when I was in my schooling, when I finished school at 3 pm I was back with my elders taking notice of them and listening to them speak about their laws. … We are sandbeach people - we live on the sea, and we live on seafood and bush tucker. Our boys go diving and get crayfish and hunt around in the bush. The elders taught me how to do that. I went out with my elders; everywhere they went, I went. My knowledge and everything, I learned from them, from sitting beside them. I learned what culture is, everything. My elders included my grandfathers, my Mum's Mum, and my grandmother's brother Charlie Omeenyo. I went out on the country with them, with my elders like my grandfathers. I was all over the place, travelling around. … I am older now, so don't really hunt anymore. I have showed my children and grandchildren these things and told them our stories. I have been a role model for a long time. I have passed my knowledge to my son, so when he goes hunting, he will bring some back for me. I was a strong man when I was younger, more strong than I am now! My sons go hunting and fishing with their wives. Out of the respect for the loss of my wife, I don't go out camping anymore. My sons bring around meat from when they go out hunting, and that's the right way to respect our old people's way and share things. Some people only share with their really close family. Sometimes people don't share and that's not right. … The language and the place names have been passed on to me and I have passed this onto the younger ones. Today I ask them to come and speak to me about the law and about bush tucker and the bush medicine that has been passed on to [] me from my elders. The young generation want to know the stories, to speak language, to know about their cultural law and their bush tucker. I teach the younger ones dancing and I take them to the Torres Strait, Old Mapoon, the NPA, Mornington, Groote Island and all around. I want to pass on the language and the customary law so the younger ones will know the cultural way of life. I have taught this in schools in Lockhart River and to my family. Every Friday I go to the school and I show them dancing and the war paint designs and the old girls go there to show them weaving. We are now preparing for the Laura festival in 2020. We will also be going to Samoa in 2020 after the festival in the Torres Strait. I can sing the Crocodile, the Rainbow Serpent, our song at Lockhart River. We sing songs about everything. We sing songs about the old people, about the promised cousin, which is about marriage and about cultural laws, and also about the stockmen and bullock in the old days. We sing about the cassowary and the emu, and how the old people would fight with spears, and the leaf dancing when we do ceremony. I sing ceremony too. I know all these songs. Everything needs to be done properly, to be passed from the elders to the younger ones, the kids today. I am teaching Wayne Butcher how to sing now and Greg Omeenyo. I am teaching all of that generation, including Norman Bally. I teach people for all of the land and all of the clan groups. We speak our language and we have our law. 65 At [63]-[64], he describes the importance of permission in his law, including in contemporary times: Culture way is very strong. In the old days, you needed to ask the tribal owner of the land if you could enter the land; you needed to get the pass from them. This is the same today. If I want to go to someone else's land for hunting I need to get permission. We need to speak strongly about our land and get permission if we go on someone else's land. People need to be welcomed to come onto country. Even the Minister, I took him up to the waterfall on my Payamu land through my grandmother Minnie Claudie, and I gave him the underarm smell. We have done a smoking ceremony here to welcome people too. If people were going to go to Payamu I would also do a smoking ceremony there. 66 At [59] Father Claudie talks about Mr G Butcher and says: The country of [G Butcher's] grandfather, Johnson Butcher, is inside (west) from Jack Giblet's Night Island country. From Stony Creek down to the beach is Ankum country, old Lady Masie Temple's country. They all come under the Night Island group. 67 In his undated statement, Mr Butcher described himself as a Uutaalnganu and Kanthanampu man, and a senior person in his family. There is ample evidence, and I accept, that Kanthanampu People identify, and are treated, as a sub-group of Kuuku Ya'u People. Mr Butcher explained how his children can claim Kanthanampu and Uutaalnganu through him and also Kuuku Ya'u through their mother. He was born on his father's Uutaalnganu country in a humpy, and lived and worked for almost all his life on or near his country around Lockhart. 68 At [31], [37] and [39], in terms of how he was taught about his law and his country, he said: I have been taught Kanthanampu and Uutaalnganu ways, culture and rules by my mother and father and their brothers and sisters. We all lived and grew up together on Kanthanampu and Uutaalnganu country. What I have been taught about our ways and our country I teach my children and grandchildren too. … My father's brothers and sisters were very close and they would be doing lots of things together like going fishing or taking their children and me and my brothers hunting. When we got together like a feed after hunting or birthday party this is when I would hear dad or his brothers and sisters talking in language about Uutaalnganu country. … When I went fishing with my brothers and sisters we knew that we could go fishing at places like the reefs that are close to the beach and row out in the boat, fishing off the sand beach and at Katha Creek because we grew up going fishing with our father and his brothers and sisters and they told us that we belong to our country. 69 At [41] and [44], he described his totem, the pelican, and how he was associated with other kin through that totem: My Uutaalnganu totem is the pelican which in our language is called maathuy. My dad's dad told me that the maathuy was his totem and that when Dad was born he takes the same totem as him. He told me that when I was born maathuy is my totem too and that my children's totem will also be maathuy. He told me that maathuy has always been our totem going way back to our old people in the old days. … Uutaalnganu people know each other[']s totems and sometimes when we see someone from another Uutaalnganu totem they might say hello maathuy because they know my totem. It is the same with my Kanthanampu wuungu totem, someone from another family with a different totem when they see me might say hello wuungu. 70 At [51]-[56], he described Uutaalnganu (Night Island) country and the sub-groups within it: Uutaalnganu country is south of the old Lockhart River and includes Angkum and Night Island. I don't know the white man's name for that place Angkum. Angkum is Chris Dean's area through Chris' mother Shirley Dean and his grandmother Margaret Temple. Some places in Uutaalnganu country are Rocky Point [J10] which is called Tachalachi in our language, the Old Lockhart Mission [J9], Friendly Bay [L10], and Hayes Creek. From Angkum, Uutaalnganu country goes inland to the big range, the Great Dividing Range. You can follow the main river up to Nunda and Pinpin. West of our Uutaalnganu country is Yawan. My father and his brothers used to take me out on country looking for sugarbag [wild honey] and they also took me out hunting for turtle and dugong and this was the time when he would talk to me about Uutaalnganu country. When I was with my father we hunted on Uutaalnganu country and this is how I got to know about where my father's country is. He taught me how to hunt on the sea and land and he would talk to me and say things like his father used to hunt in those same places. He told me that his father would teach him and he teach me and I teach my kids. My kids are now teaching [their] kids how to hunt and where Uutaalnganu country is. My uncle Johnny Butcher also told me where Uutaalnganu country is when I went hunting with him. My father and uncle Johnny told me that we could only hunt and take things from our country. Uutaalnganu has three clans; Piiwu, Maathuy and Tintha. Even though we have three clans we are still one. When we have public meetings the people from all three clans turn up and we are all involved in any important decisions. Night Island people are split into three mobs. There is the Piiwu/Kungka side, Maathuy is in the middle, and then there is the Tintha side. Three mob, on the long island, but we are still one family and very close. All those families also have land on the mainland. Everyone joins together when we talk for country. If you want to do something on country you have to talk with all Uutaalnganu people and families. 71 Mr Butcher described why permission is important in his law at [78]-[79]: We sometimes let other traditional owners come in to Uutaalnganu for camping and hunting. Before people can use Uutaalnganu country, they need to ask permission from the families for that country. If a stranger goes onto the country and doesn't ask for permission, the spirits will torment them. You have to ask and listen to the traditional owner for that country. He is the one who has to chuck talk for the spirits so they won't get sick. When white people come to Kanthanampu or Uutaalnganu they have to ask too. In the old days we had no power to stop those white people from coming to our country. We couldn't say anything to stop them and I used to get angry that they come to our country without asking and do things on our land and sea like build houses and sheds or anchor their prawn trawlers or fishing trawlers or other boats in the Lockhart River or at Night Island. Those white people used to go right up the Lockhart River or anchor at Night Island. When these boats were anchored offshore the sea grass started to die and the dugongs went away. Those trawlers don't come here much anymore and the sea grass is growing back and the dugongs are starting to come back too. 72 Mr Butcher gave many examples of stories associated with Uutaalnganu country and how the resources and features of the country are integrated into traditional life, but also part of people's contemporary lives. One is at [112]-[114]: The Uutaalnganu Maathuy country has a story place in the swamp area. It's swampy country and now full of crocodiles. Maathuy is the name of the pelican story place, in the swamp area. My grandfather told me that the pelican's cuma [faeces] turned into white clay. Old people used to use the white clay to decorate the body for ceremony. Nowadays we do not use it that way anymore. The pelican is my totem. When I was working as a stockman, I took some other Aboriginal stockmen to Maathuy. Everybody knew the place and [its] meaning for the pelican totem. We painted our hands and faces with the white clay to see how it looked. Only the traditional owners can go to that place. If anyone from outside wanted to go there they would have to ask me or one of my sons would take them there. This place must be looked after because if we lose that story it will be gone. The last time I went there was about 10 years ago. We travelled from Night Island in a helicopter to survey a site beyond Maathuy because Telstra was planning to build a tower there. I saw four large crocodiles walking across the swamp on that story place. There are laws about this story place. People can go there to look because the site is not secret or restricted, but they cannot touch the place. No matter the reason, I would not allow anybody to damage that country because it is a special place for my pelican totem. We want our young generation to look after that place to make sure it stays the way it should be. 73 These are but some passages from evidence that is rich and full, and provides an ample basis for recognition of native title.

THE APPLICABLE REQUIREMENTS OF SECTION 87A 74 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. 75 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 Act, an agreement in writing for a proposed determination of native title in relation to part, but not all, of the application area; (c) that the requisite persons are parties to the agreement; and (d) that the terms of the agreement are in writing and signed by, or on behalf of, the requisite persons. 76 Sub-section 87A(2) allows for the parties to file a proposed determination of native title and that has occurred on this application. 77 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 78 As the applicant sets out at [49]-[53] of its submissions, which the State adopts, each of the pre-requisites in s 87A(1) is satisfied; both s 87A agreements have been signed by the requisite persons after appropriate notification.

Sub-section 87A(4)(a): orders within power 79 For the reasons set out at [54]-[59] of the applicant's submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court. 80 The Cape York United #1 application is valid and there is no extant determination of native title in relation to its claim area, or the Kuuku Ya'u and Uutaalnganu determination areas. There are no other proceedings before the Court relating to native title applications that cover any part of the area the subject of the determination that would otherwise require orders to be made under s 67(1) of the Act. I am satisfied that the form of the determinations complies with s 94A and s 225 of the Act and, for the reasons that follow, the requirements of s 87A of the Act are otherwise satisfied.

Sub-section 87A(4)(b): appropriate to make the orders sought 81 I set out my approach to the question of "appropriateness" and the Court's function in the recent consent determination reasons relating to the Nanda People: see Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56], by reference to earlier authorities. I adopt and apply those observations here. In the Kuuku Ya'u and Uutaalnganu (Night Island) determinations, having case managed the proceeding closely for many years, I am firmly satisfied of the methodical and careful approach to group description, boundary description, connection and tenure that has been adopted by all parties. 82 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. I emphasised that the State's public responsibility to ensure any agreement made under s 87 or s 87A is one which is in the interests of the community it represents. That community includes the Indigenous peoples of the State, and their particular interest in seeing the objects and purposes of the Native Title Act are achieved, so that the following intentions set out in the preamble to the Act can be acted upon: The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. 83 As I explained in Taylor, the community which the State represents is a broad one and includes non-Indigenous people, some of whom have their own proprietary rights and interests in the determination area, and others who do not but may be affected by the grant of rights in rem. I noted there are also what might be described as governmental and infrastructure interests of a proprietary nature which must be considered and may need to be accommodated, as the complex scheme of the Native Title Act contemplates. The State must weigh all these factors in reaching a position on an agreement for the purposes of s 87 or s 87A. 84 The State has a responsibility to satisfy itself there is a sufficient basis for concluding that the proposed determination is capable of meeting the requirements of s 225 of the Native Title Act. In the case of the Uutaalnganu (Night Island) native title group, that process has involved the review of considerable material, both direct evidence from claim group members and expert material, as well as historical source material. The process has been thorough, and careful. Each proposed consent determination will have taken its own particular course, especially on connection material. 85 The State has also actively participated in, and led, the searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the proposed determination areas, and those interests are included in the proposed determinations. The State's tenure analysis has been circulated to all active respondents, as well as the applicant. All active respondents have been involved in reaching agreement on the identification of other interests, the effect of any extinguishment and the application of ss 47, 47A and 47B of the Native Title Act within the proposed Kuuku Ya'u and Uutaalnganu (Night Island) determination areas. 86 If the State signs a s 87A agreement, and agrees to recognise the existence of native title in the determination area, then the Court is entitled to proceed on the basis that the State has made a reasonable and rational assessment of the material to which it has been given access. The Court will give considerable weight to the position taken by the State, on behalf of all members of its community.

NOMINATION OF A PRESCRIBED BODY CORPORATE 87 A separate PBC has been nominated under s 56 of the Native Title Act for each of the Kuuku Ya'u and Uutaalnganu (Night Island) determination areas. As deposed to by Ms Malyon at [46] and [64] of her affidavit, each PBC was nominated by the native title group concerned, and each PBC has provided its consent to nomination. The Uutaalnganu Aboriginal Corporation was nominated by the Uutaalnganu (Night Island) claim group. In these circumstances, the nomination of the PBCs is appropriate.

CONCLUSION 88 The Cape York United #1 claim has its challenges, and they will continue for the undetermined areas. There are no perfect or ideal outcomes, and compromises are often part and parcel of establishing new legal arrangements. Communities may need to put some of their differences to one side to make the most of the native title rights recognised today, and those rights which have already been recognised in previous determinations. 89 The Court acknowledges the dedication of a huge range of people working for the CYLC who have been involved in the determination process, as well as the applicant's legal representatives, anthropologists, and other expert advisers. The commitment of the State and its officers and legal representatives must also be recognised, as must the role of the other active respondents and their legal representatives. 90 The important role played by National Judicial Registrar Stride, and outside mediators, in assisting the parties throughout the course of the Cape York United #1 claim, and in the processes towards these two determinations, should also be recognised and acknowledged. 91 Every determination that native title exists is important. The recognition given by a determination of native title, for those who have long been denied any recognition by Australian law of their deep and abiding connection to their country, is a step in the struggle of Aboriginal and Torres Strait Islander peoples to regain what was taken away from them, and to make their own choices about how their country and its resources are protected, used and maintained. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

SCHEDULE OF PARTIES QUD 673 of 2014 Respondents Fifth Respondent: COOK SHIRE COUNCIL Thirteenth Respondent: TELSTRA CORPORATION LIMITED

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Fire and Emergency Services Act 1990(Qld)

Native Title Act 1993(Cth)ss 84D, 87A, 225

Outcomemixed

Disposition:

The Court made a consent determination of native title under s 87A recognising the rights of the Uutaalnganu (Night Island) People, exercised discretion under s 84D(4), ordered that native title be held in trust by the Uutaalnganu Aboriginal Corporation as the prescribed body corporate, noted areas of extinguishment in Schedule 5, and ordered that each party bear its own costs.

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland

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