Ross on behalf of the Cape York United #1 Claim Group v State of Queensland - [2022] FCA 1178 - FCA 2022 case summary — Zoe

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

[2022] FCA 1178

Federal Court of Australia|2022-10-06|Before: Mortimer J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2022-10-06

Before

Mortimer J

Catchwords

NATIVE TITLE - consent determination - nomination of prescribed body corporate

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - nomination of prescribed body corporate

Judgment (13 paragraphs)

[1]

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 native title over certain identified parcels of the Northern Cape York #2 native title group, being the native title holders determined in Coconut on behalf of the Northern Cape York # 2 Native Title Claim Group v State of Queensland [2014] FCA 629 (Coconut determination). Those identified parcels are within the external boundary of the area determined in the Coconut determination. This determination, made on the papers, is made on the same day as determinations recognising the native title of the Atambaya People and Gudang Yadhaykenu People. 2 The recognition of native title over these individual parcels has been delayed for some time. This is the first of several determinations on the papers which will remedy a patchwork of undetermined parcels of land lying within the Cape York United #1 claim area, over which native title could not be recognised at the time of earlier determinations. For case management purposes, the present individual parcels fall within a geographic region that has come to be known as the 'Redmond Part A area', because Dr Anthony Redmond was the anthropologist engaged by the Cape York United #1 applicant to prepare connection material about the area. 3 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.

[2]

THE MATERIAL BEFORE THE COURT 4 The application for consent determination was supported by a principal set of submissions filed by the applicant on 21 September 2022. The State filed its submissions on 23 September 2022. Each set of submissions was made jointly with respect to each of the determinations falling within the Redmond Part A area, including the individual parcels of land identified in this determination. 5 For this determination, the applicant relied on the affidavit of Kirstin Donlevy Malyon affirmed and filed 21 September 2022 (2022 Malyon affidavit). 6 Ms Malyon has been the Principal Legal Officer at the Cape York Land Council, and has had carriage of the Cape York United #1 claim. In the 2022 Malyon affidavit, she deposes to the process undertaken for authorising the NCY#2 s 87A agreement, and ensuring as many descendants as possible were notified of the meeting. She deposes to how the Mokwiri Aboriginal Corporation was nominated as the prescribed body corporate (PBC) for the NCY#2 identified parcels determination. She annexes to her affidavit the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area. 7 In the Coconut determination, the Court expressed its satisfaction about the connection material before it (at [53]): I am satisfied having regard to the anthropological reports in evidence that the nature and extent of the native title rights and interests in relation to the land and waters of the Determination Area are these. 8 Greenwood J set out a description of those rights and interests (at [54]-[56]). His Honour described the anthropological reports in evidence as follows (at [22]): I have had the benefit of reading the following reports: A Northern Cape York Peninsula Regional Society, Dr Anthony Redmond, June 2012; The Northern Cape York #2 Native Title Claim Connection Report, Dr Brendan Corrigan, 9 August 2012; NCYP #1 and #2 Native Title Claims: Supplementary Report, Dr Anthony Redmond, 26 June 2013; Summary of Evidence and Opinions on Northern Cape York #2 Anthropology Research, Dr Brendan Corrigan, 30 May 2014 (Annexure "BMC2" to Dr Corrigan's affidavit affirmed 30 May 2014); and Northern Cape York Peninsula Regional Aboriginal Society: Summary of Evidence and Opinion, Dr Anthony Redmond, 21 May 2014 (Annexure "AJR2" to Dr Redmond's affidavit affirmed 26 May 2014). (Original emphasis.) 9 The applicant submits that: The NCY#2 IP Determination area is entirely surrounded by the determination of native title made by the Court in Coconut. The connection of the NCY#2 Native Title Group to the NCY#2 IP Determination area is supported by inferences that arise from the determination in Coconut. 10 The applicant also relied on [5]-[30] of an affidavit of Ms Malyon filed 27 October 2021, concerning the re-authorisation process undertaken by the applicant in the period from April to September 2021. 11 I have described the procedural history of the Cape York United #1 claim in the two other determinations made today. It is not necessary to repeat it here.

[5]

The authorisation of the Cape York United #1 applicant 18 At a wider level, the applicant's authority to enter into the NCY#2 s 87A agreement stems from the re-authorisation process undertaken between April and September 2021, in respect of the claim as a whole. Ms Malyon describes this process in her 2021 affidavit, and the Court described and endorsed it in Kuuku Ya'u determination at [30]-[37] and Uutaalnganu determination at [28]-[35]. In those determinations, I agreed with the State's submission that the weight of authority supports the view that the Native Title Act affords flexibility to shape the content of an ultimate determination of native title, provided there is compliance with s 94A and s 225 of the Act. For that reason, I agreed with the State's submission that the re-authorisation process for the applicant was lawful, and compliant with the Native Title Act. 19 Nevertheless, in Kuuku Ya'u determination at [38]-[50] and Uutaalnganu determination at [36]-[48], I explained why I considered it also appropriate to make orders under s 84D(4) of the Native Title Act to deal with any uncertainty arising from differences between the claim group description in the original Cape York United #1 application and those in the proposed s 87A determinations at a more local level. 20 Those orders were made under s 84D(4) out of an abundance of caution and to avoid any doubt about the validity of the s 87A determinations. At [50] in Kuuku Ya'u determination and [48] in Uutaalnganu determination, I said: It is plainly in the interests of the administration of justice to do so, in circumstances where the overall Cape York United #1 claim is gargantuan, and has already consumed seven years' worth of resources, mostly sourced from public funds. Substantial, dedicated and methodical efforts have been made to comply with the requirements of the Native Title Act in each step along the way to these first two determinations. Despite significant factual and legal challenges, the two key parties have navigated a consensual path to the recognition of native title for the Kuuku Ya'u and Uutaalnganu (Night Island) groups. All other respondents have been consulted and given opportunities to participate in the process as it has progressed. They have been included in steps in the complex timetables. All consent to the Kuuku Ya'u and Uutaalnganu (Night Island) determinations. If ever there was a situation in the Court's native title jurisdiction where a favourable exercise of discretion by the Court is appropriate to ensure resolution of a claim to which all parties agree, this is that situation. 21 In each of the present determinations, the applicant proposed that similar orders be made. The State agreed with that proposal. For the reasons given in the extract above, I continue to consider such orders are appropriate.

[7]

THE APPLICABLE REQUIREMENTS OF SECTION 87A 25 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. 26 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) all those set out in sub-s 87A(1)(c) who are parties to the proceeding are also parties to the s 87A agreement; and (d) that the terms of the agreement are in writing and signed by, or on behalf of, the requisite parties to the proceeding. 27 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 28 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).

[13]

SCHEDULE OF PARTIES QUD 673 of 2014 Respondents Third Respondent: AURUKUN SHIRE COUNCIL Fourth Respondent: CARPENTARIA SHIRE COUNCIL Fifth Respondent: COOK SHIRE COUNCIL Sixth Respondent: DOUGLAS SHIRE COUNCIL Seventh Respondent: KOWANYAMA ABORIGINAL SHIRE COUNCIL Eighth Respondent: NAPRANUM ABORIGINAL SHIRE COUNCIL Ninth Respondent: PORMPURAAW ABORIGINAL SHIRE COUNCIL Tenth Respondent: WUJAL WUJAL ABORIGINAL SHIRE COUNCIL Eleventh Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Twelfth Respondent: FAR NORTH QUEENSLAND PORTS CORPORATION LIMITED (TRADING AS PORTS NORTH) Thirteenth Respondent: TELSTRA CORPORATION LIMITED Fourteenth Respondent: ALCAN SOUTH PACIFIC Fifteenth Respondent: BRANDT METALS PTY LTD Sixteenth Respondent: LESLIE CARL COLEING Seventeenth Respondent: MATTHEW BYRON COLEING Eighteenth Respondent: STEPHEN LESLIE COLEING Nineteenth Respondent: LANCE JEFFRESS Twentieth Respondent: RTA WEIPA PTY LTD Twenty First Respondent: AUSTRALIAN WILDLIFE CONSERVANCY Twenty Second Respondent: MICHAEL MARIE LOUIS DENIS BREDILLET Twenty Third Respondent: CRAIG ANTHONY CALLAGHAN Twenty Fourth Respondent: BERTIE LYNDON CALLAGHAN Twenty Fifth Respondent: GRAHAM EDWARD ELMES Twenty Sixth Respondent: JAMES MAURICE GORDON Twenty Seventh Respondent: PATRICIA LOIS GORDON Twenty Eighth Respondent: MARGARET ANNE INNES Twenty Ninth Respondent: COLIN INNES Thirtieth Respondent: KIM KERWIN Thirty First Respondent: WENDY EVA KOZICKA Thirty Second Respondent: CAMERON STUART MACLEAN Thirty Third Respondent: MICHELLE MARGARET MACLEAN Thirty Fourth Respondent: BRETT JOHN MADDEN Thirty Fifth Respondent: RODNEY GLENN RAYMOND Thirty Sixth Respondent: EVAN FRANK RYAN Thirty Seventh Respondent: PAUL BRADLEY RYAN Thirty Eighth Respondent: SUSAN SHEPHARD Thirty Ninth Respondent: SCOTT EVAN RYAN Fortieth Respondent: BARBARA JOAN SHEPHARD Forty First Respondent: NEVILLE JAMES SHEPHARD Forty Second Respondent: THOMAS DONALD SHEPHARD Forty Third Respondent: SILVERBACK PROPERTIES PTY LTD ACN 067 400 088 Forty Fourth Respondent: THE TONY AND LISETTE LEWIS SETTLEMENT PTY LIMITED ACN 003 632 344 Forty Fifth Respondent: MATTHEW TREZISE Forty Sixth Respondent: BOWYER ARCHER RIVER QUARRIES PTY LTD ACN 603 263 369 Forty Seventh Respondent: RAYLEE FRANCES BYRNES Forty Eighth Respondent: VICTOR PATRICK BYRNES Forty Ninth Respondent: GAVIN DEAR Fiftieth Respondent: SCOTT ALEXANDER HARRIS Fifty First Respondent: DEBORAH LOUISE SYMONDS Fifty Second Respondent: MICHAEL JOHN MILLER Fifty Third Respondent: MICHAEL DOUGLAS O'SULLIVAN Fifty Fourth Respondent: PATRICK JOHN O'SULLIVAN Fifty Fifth Respondent: ESTHER RUTH FOOTE Fifty Sixth Respondent: AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST (ABN 75 357 171 746) Fifty Seventh Respondent: BENJAMIN DARK

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

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Judgment (13 paragraphs)

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Legislation Cited (28)

Cases Cited (4)

Cited By (8)