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

Federal Court of Australia|2023-11-02|Before: Mortimer CJ

INTRODUCTION 1 The parties have sought a determination of native title under s 87A of the Native Title Act 1993 (Cth), with associated orders, recognising native title over certain identified parcels of land in favour of the Wik and Wik Way native title group, being the native title holders determined in Wik Peoples v State of Queensland [2000] FCA 1443 (WWY 2000 determination). Those identified parcels are within the external boundary of the area determined in the WWY 2000 determination. This determination, made on the papers, is made on the same day as determinations recognising the native title of the Kuku Warra People, Thaypan People and Possum People. 2 This determination marks a recognition of native title over 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 Wik and Wik Way determinations. For case management purposes, the present individual parcels fall within a geographic region that has come to be known as the 'Wood area', because Ray Wood was the anthropologist initially engaged by the Cape York United #1 applicant to prepare connection material about the area. That is why these parcels are subject of separate orders today. 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.

THE AGREED GROUP DESCRIPTION 11 The description of the Wik and Wik Way native title group differs from descriptions of native title groups in other determinations made in the present proceeding, in that no list of apical ancestors is given descent from whom defines membership of the group. Rather, the description of the native title group in the Wik and Wik Way independent parcels determination uses the description "Wik and Wik Way Peoples" which is used in existing Wik and Wik Way determinations, including the WWY 2000 determination. The applicant submits that it is appropriate to use in the present proceeding the same group description for Wik and Wik Way Peoples that has previously been applied by the Court. The applicant also points to the report of Ms Waters, submitting that available evidence shows that this description refers to an identifiable group of people who are mutually aware of who are members of the group. The State does not object to that submission, and I accept it.

The Wik and Wik Way section 87A agreement 12 As I have explained in the three other determinations made today, for the larger areas of the Cape York United #1 claim, a Boundary Identification Negotiation and Mediation or 'BINM' process was adopted in April 2020 to deal with the reality that distinctly identifiable groups hold interests in that area: see also Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya'u determination) [2021] FCA 1464 at [18], [25]-[26] and Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [19], [23]-[24]. 13 The BINM process did not need to be implemented in relation to the Wik and Wik Way independent parcels determination. As the State explains in its submissions, the Wik and Wik Way independent parcels determination only relates to those areas excluded from the WWY 2000 determination, such that resolution on boundaries was not required and agreement had been reached that the group description would reflect that of the surrounding determination. 14 The Court accepts that explanation is correct. 15 In the 2023 Malyon affidavit, Ms Malyon deposes to the notification of meetings to discuss, and subsequently authorise, the s 87A agreement for the Wik and Wik Way identified parcels determination. The Wik and Wik Way authorisation meeting was conducted on 6 September 2023. At that meeting, the group considered the terms of the Wik and Wik Way s 87A agreement, and directed the applicant to enter into that agreement.

The authorisation of the Cape York United #1 applicant 16 The applicant's authority to enter into the Wik and Wik Way 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 the 2021 Malyon 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. The applicant's submissions also supported this approach, unsurprisingly. No objections were made by any other parties to the determinations. The State has maintained the same position in its submissions on these current determinations. 17 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, in light of the change in the way the claim was proceeding and the re-authorisation process. 18 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. 19 I adopt those reasons in each of the four determinations now made. 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.

THE CONNECTION OF THE WIK AND WIK WAY NATIVE TITLE GROUP TO THE DETERMINATION AREA 20 I accept the submissions made on behalf of the applicant and the State that the Court can be satisfied, on the basis of the material filed in the proceeding and on the basis of the WWY 2000 determination, that there is sufficient material on connection to sustain the determination of the Wik and Wik Way independent parcels, under s 87A of the Native Title Act.

THE APPLICABLE REQUIREMENTS OF SECTION 87A 21 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. 22 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. 23 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 24 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 25 As the applicant sets out at [45]-[51] of its submissions, which the State adopts, each of the pre-requisites in s 87A(1) is satisfied. Each s 87A agreement has been signed by the requisite parties to the proceeding, after appropriate notification. 26 On 13 October 2023, the parties indicated to the Court by way of correspondence that they had identified a typographical error in a cross reference in Schedule 1, at [4(d)(i)], of the Wik and Wik Way independent parcels s 87A agreement, and the parties provided the Court, by agreement, with an amended version of the Wik and Wik Way independent parcels s 87A agreement correcting that typographical error. The Court's orders today reflect that correction.

Sub-section 87A(4)(a): orders within power 27 For the reasons set out at [52]-[57] of the applicant's submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court. 28 The Cape York United #1 application is valid and there is no extant determination of native title in relation to the Kuku Warra, Thaypan, Possum, or Wiki and Wik Way identified parcels determination areas. As the State notes, areas over which previous exclusive possession acts have occurred are expressly excluded. There are no other proceedings before the Court relating to native title applications that cover any part of the area the subject of the determinations 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 29 In reasons for a determination in favour of the Nanda People in Western Australia, I set out my approach to the question of "appropriateness" and the Court's function: see Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56], by reference to earlier authorities. In Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [63]-[65], I explained the particular importance of the role of the State in the consent determination process. As I did in the Kuuku Ya'u and Uutaalnganu determinations, I adopt and apply the observations I made in Drury and Taylor here. 30 In relation to the four determinations, I am satisfied all parties have adopted a methodical and careful approach to group description, boundary description and resolution of boundary disputes, connection and tenure, including for the Wik and Wik Way independent parcels determination. The respective group members have had carefully planned opportunities to participate in decision-making about the proposed s 87A agreements, and especially about the boundary and group descriptions. Group members have been well supported to participate, if they chose to do so. These consultations and meetings are the appropriate time for people to come forward and express their views or concerns; if group members have concerns then they need to attend these meetings and participate in discussions at those times. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests. 31 The Court affords considerable weight to the position taken by the State in supporting the applications for determination of native title, on behalf of all members of its community. I described the importance of the State's role in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 10) [2022] FCA 1129 at [6], [56]. I adhere to those views. The role of the State of Queensland in the detailed step-by-step process in the Cape York United #1 claim has involved considerable human and financial resources, and the Court acknowledges the State's dedication to assisting group members to secure determinations of native title wherever possible. Other respondents to the Cape York United #1 claim have also derived considerable benefit from the tremendous contribution by the State, which has relieved those respondents of a great deal of work. The Court can be confident the State has reached a carefully considered view before agreeing to these determinations.

ORDER SOUGHT UNDER S 199C(1A) 32 There is one current indigenous land use agreement (ILUA) in place in relation to parts of the Wik and Wik Way independent parcels determination area. It is an area ILUA. The parties agree it is likely that the Registrar's obligation in s 199C(1) of the Native Title Act is engaged in respect of the ILUA, unless an order is made under s 199C(1A). 33 As the State submits, by sub-s 199C(1)(b) the Registrar's duty to remove an ILUA can apply to area agreements. That sub-section provides: (1) Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if: … (b) in the case of an agreement under Subdivision C of Division 3 of Part 2 - an approved determination of native title is made in relation to any of the area covered by the agreement, and any of the persons who, under the determination, hold native title in relation to the area is not a person who authorised the making of the agreement as mentioned in: (i) if the application relating to the agreement was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a) - paragraph 203BE(5)(b); or (ii) if the application relating to the agreement included a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met - that paragraph[.] (Emphasis added.) 34 The parties submit an order pursuant to s 199C(1A) of the Native Title Act should be made, directing the Registrar not to remove the details of the Aurukun Township and Access Road Agreement ILUA (QI2001/026) from the Register of Indigenous Land Use Agreements. The parties contend this order should be made out of an abundance of caution, given the ongoing operational nature of the ILUA, and the potential application of (relevantly) the duty in s 199C(1)(b). The State contends that in the present circumstances the group descriptions of those groups who authorised the ILUA do not reflect, on the face of the ILUA or the register extracts, the group descriptions proposed in the draft s 87A agreements for the relevant groups. This would appear to engage s 199C(1)(b), although there is no authority on the interpretation of this provision. The State adds that it was not privy to any materials regarding the original authorisation of the ILUA, and this is a further basis on which it contends the proposed s 199C(1A) order is appropriate. 35 Section 199C(1A) provides: (1A) If: (a) the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and (b) the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and (c) the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement; the Federal Court may order the Registrar not to remove the details of the agreement from the Register. 36 The State submits that sub-s 199C(1A)(a) is engaged because: (a) the Aurukun Township and Access Road Agreement ILUA covers the township of Aurukun; and (b) while the Aurukun Township and Access Road Agreement ILUA appears, on its face, to have been authorised by the Wik and Wik Way Peoples, given that the WWY 2000 determination and the proposed Wik and Wik Way identified parcels determination do not define the native title holders by reference to apical ancestors, the parties propose to also seek an order in respect of this ILUA out of an abundance of caution. 37 The State further submits that the requirement in s 199C(1A)(b) is met because it is the Wik and Wik Way native title group that seeks the order under s 199C(1A). It submits the requirement in s 199C(1A)(c) is met, because the Wik and Wik Way native title group passed resolutions at the Wik and Wik Way authorisation meeting on 6 September 2023, accepting the terms of the Aurukun Township and Access Road Agreement ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that the ILUA not be removed from the Register. 38 I accept the State's submissions that the provisions in s 199C(1A) can apply to the area ILUA. As I have previously held, s 199C(1A) is intended to allow for the continuity of obligations assumed under, and entitlements conferred by, (relevantly) an area ILUA where the group identified by this Court as the native title holders for that area are prepared to agree to continue to be bound by that ILUA, and where there is sufficient overlap between those native title holders who authorised an ILUA and those who are recognised in a determination. I do not consider it is necessary in the present circumstances of a s 87A agreement for the Court to embark on any detailed consideration of what level of overlap is strictly required, nor to engage with any construction issues that may arise in relation to s 199C(1)(b). Section 199C(1A) is a facultative provision, and should be construed accordingly. 39 Given the resolution passed by the Wik and Wik Way Peoples, I am satisfied it is appropriate for the order sought by the State to be made, out of an abundance of caution. In a complex and novel claim such as the Cape York United #1 proceeding, where the steps to agreement take so long and involve many potential pitfalls, any doubts which can be avoided or accommodated by the making of orders should be resolved by the Court, so that the central objectives of the parties' agreement under s 87A can be achieved. As many justices of this Court have observed, the resolution of claimant applications by consent is a central feature of this legislative scheme.

NOMINATION OF A PRESCRIBED BODY CORPORATE 40 A separate PBC has been nominated under s 56 of the Native Title Act for each of the Kuku Warra, Thaypan, Possum and Wik and Wik Way independent parcel determination areas. The Ngan Aak-Kunch Aboriginal Corporation is nominated for the Wik and Wik Way independent parcels determination area. In the 2023 Malyon affidavit, Ms Malyon describes how each PBC was nominated by the native title group concerned, and that each PBC has provided its consent to nomination. In these circumstances, the Court is satisfied that the nomination of each of the PBCs is appropriate.

CONCLUSION 41 For the Wik and Wik Way native title group, this determination represents an expansion of the recognition of that group's native title to parcels surrounded by areas already determined in the WWY 2000 determination. It has taken some time to resolve these outstanding parcels, and the Wik and Wik Way Peoples have shown patience and persistence. The Court is pleased to deliver some further certainty to their native title claims today, and thanks all those who have worked towards this outcome. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer.

Associate: Dated: 2 November 2023 SCHEDULE OF PARTIES QUD 673 of 2014 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 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

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

Aluminium Corporation Pty Limited Agreement Act 1957(Qld)

Fire and Emergency Services Act 1990(Qld)

Native Title Act 1993(Cth)ss 56, 61, 66, 67(1), 84D(4), 87A, 94A, 199C, 225

THE COURT NOTES THAT: A. A determination of native title was made in favour of the Wik and Wik Way Peoples on 3 October 2000 (Wik Peoples v Queensland [2000] FCA 1443) (the WWY 2000 Determination) in relation to an area of land and waters along the western coastline of Cape York Peninsula, generally from around Archer Bay, in the north, to Christmas Creek, in the south, including around the township of Aurukun, plus an additional area inland from that coastline including part of Watson River. B. Schedule 1 of the WWY 2000 Determination expressly excluded: (i) the land and waters in around the town of Aurukun; and (ii) the land and waters within the area covered by a corridor 15 metres either side of the centre line of the present alignment of the existing road which connects the town of Aurukun to the Peninsula Developmental Road, (the WWY Identified Parcels). C. The WWY Identified Parcels are wholly surrounded by the WWY 2000 Determination. D. The Native Title Determination Application was filed on 11 December 2014 and includes all undetermined areas (save for some specified types of tenure which were excluded) within the external boundaries of the Cape York Representative Aboriginal/Torres Strait Islander Body Area. E. This Determination relates to those areas identified in recital B(i) above, being the WWY Identified Parcels, which were expressly excluded from the WWY 2000 Determination, and which may be claimed as part of the Native Title Determination Application. In relation to the area described above in recital B(ii), the Native Title Determination Application excludes any area over which there was an existing dedicated public road which wholly extinguished native title rights and interests. F. The Applicant agrees that any areas which fall within the terms of Schedule 3 of this Determination are areas where native title has been wholly extinguished.

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