Ross on behalf of the Cape York United #1 Claim Group v State of Queensland - [2023] FCA 735 - FCA 2023 case summary — Zoe

CTHFCA

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

[2023] FCA 735

Federal Court of Australia|2023-07-10|Before: Mortimer CJ

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2023-07-10

Before

Mortimer CJ

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 (26 paragraphs)

[1]

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth); THE COURT NOTES THAT: A. The Applicant agrees that the areas listed in Schedule 5 are areas where native title has been wholly extinguished.

[2]

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. BY CONSENT THE COURT DETERMINES THAT: 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; "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); "Native Title Determination Application" means the Cape York United #1 native title claim filed on 11 December 2014 in QUD 673 of 2014; "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); "Register of Indigenous Land Use Agreements" has the same meaning as in the Native Title Act 1993 (Cth); "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; and "waters" has the same meaning as in the Native Title Act 1993 (Cth). Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

[3]

The determination area is the land and waters described in Schedule 4 and depicted in the map 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 Atambaya People described in Schedule 1 (the Native Title Holders).
Subject to orders 8, 9, and 10 below, the nature and extent of the native title rights and interests in relation to the land and waters described in 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 native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders.
The native title rights and interests referred to in order 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2 (the Other Interests).
The relationship between the native title rights and interests described in order 7 and the Other Interests described in Schedule 2 is that: (a) the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title rights and interests continue to exist in their entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and (c) the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

[6]

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:

The rights and interests of the parties under the PNG Gas Pipeline ILUA - Cape York Region (QI2006/043) registered on 15 May 2008 on the Register of Indigenous Land Use Agreements.
The rights and interests of Silverback Properties Pty Ltd (ACN 067 400 088) as the holder of rolling term lease for pastoral purposes (TL 0/233308) over that part of Lot 4 on SP266637 (also known as Steve Irwin Wildlife Reserve) that falls within the External Boundary.
The rights and interests of Telstra Corporation Limited (ACN 051 775 556) and any of its successors in title: (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 its duties; and (d) under any lease, licence, access agreement, permit or easement relating to its telecommunications facilities in the Determination Area.
The rights and interests granted or available to RTA Weipa Pty Ltd (ACN 137 266 285) (and any successors in title) under the Comalco Agreement, including, but not limited to, rights and interests in relation to the "bauxite field" (as defined in clause 1 of the Comalco Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where: (a) "Comalco Act" means the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld); and (b) "Comalco Agreement" means the agreement in Schedule 1 to the Comalco Act, including as amended in accordance with such Act.
The rights and interests granted or available to Alcan South Pacific Pty Ltd (ACN 009 726 078) (and any successors in title) under the Alcan Agreement, including, but not limited to, rights and interests in relation to the "bauxite field" (as defined in clause 1 of the Alcan Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where: (a) "Alcan Act" means the Alcan Queensland Pty Limited Agreement Act 1965 (Qld); and (b) "Alcan Agreement" means the agreement in Schedule 1 to the Alcan Act, including as amended in accordance with such Act.
The rights and interests of Cook Shire Council: (a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be its Local Government Area: (b) as the: (i) lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not; (ii) grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not; (iii) party to an agreement with a third party which relates to land or waters in the Determination Area; and (iv) holder of any estate or any other interest in land, including as trustee of any Reserves, under access agreements and easements that exist in the Determination Area; (c) as the owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to any: (i) undedicated but constructed roads except for those not operated by the council; (ii) water pipelines and water supply infrastructure; (iii) drainage facilities; (iv) watering point facilities; (v) recreational facilities; (vi) transport facilities; (vii) gravel pits operated by the council; (viii) cemetery and cemetery related facilities; and (ix) community facilities; (d) to enter the land for the purposes described in paragraphs 6(a), (b) and (c) above by its employees, agents or contractors to: (i) exercise any of the rights and interests referred to in this paragraph 6 and paragraph 7 below; (ii) use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 6(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.
The rights and interests of the State of Queensland and Cook Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.
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.
The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation: (a) the Aboriginal Land Act 1991 (Qld); (b) the Fisheries Act 1994 (Qld); (c) the Land Act 1994 (Qld); (d) the Nature Conservation Act 1992 (Qld); (e) the Forestry Act 1959 (Qld); (f) the Water Act 2000 (Qld); (g) the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld); (h) the Mineral Resources Act 1989 (Qld); (i) the Planning Act 2016 (Qld); (j) the Transport Infrastructure Act 1994 (Qld); and (k) the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).
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.
So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing rights of the public to access and enjoy the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) stock routes; and (d) areas that were public places at the end of 31 December 1993.
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.

[12]

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 Schedule 4:

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).
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, including, but not limited to the whole of the land and waters described as Lot 3 on DLH3; 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).
Those land and waters within the External Boundary that were excluded from the Native Title Determination Application on the basis that, at the time of the Native Title Determination Application, they were an area where native title rights and interests had been wholly extinguished, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, including, but not limited to: (a) any area where there had been an unqualified grant of an estate in fee simple which wholly extinguished native title rights and interests; and (b) any area over which there was an existing dedicated public road which wholly extinguished native title rights and interests.
Those land and waters within the External Boundary which, at the time the Native Title Determination Application was made, were the subject of one or more Pre-existing Rights Based Acts, within the meaning of s 24IB of the Native Title Act 1993 (Cth), which wholly extinguished native title, including but not limited to the whole of the land and waters described as Lot 1 on SP136191.

[13]

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 Atambaya People. This determination is being made shortly after determinations recognising the native title of the Central West Wik People, Taepithiggi People, Umpila People and Weipa Peninsula People. This determination recognises the native title of the Atambaya People in relation to areas of land and waters in northern Cape York, to the west and east of their existing determination made in this proceeding in October 2022, Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176. The Atambaya #2 determination, as the parties refer to it, is being made on the papers. 2 This is the fourth group of determinations made in the Cape York United #1 proceeding, with the first having been made in November 2021. 3 Together, these determinations resolve five parts of the Cape York United #1 claim, within geographic regions that have been described by the parties as the 'McKeown area' and 'Redmond Part B area', because Dr Frank McKeown and Dr Anthony Redmond were the anthropologists engaged by the Cape York United #1 applicant to prepare connection material about the respective areas. The Central West Wik and Weipa determinations fall within the McKeown area. The Umpila determination previously formed part of what was known as the 'Kwok Report Area', named for Dr Natalie Kwok as the anthropologist engaged for the area, but was added to the McKeown area timetable on 20 April 2023. This is because of the delays in securing authorisation, to which I refer in the Umpila determination reasons. As set out in the Court's timetabling orders of 14 June 2022, the area the subject of a report by Dr Redmond, known as the 'Redmond Report area', was divided into two separate case management timetables, being Part A and Part B. The 'Redmond Part A area', as it became known, was the subject of determinations made in October 2022. Subsequently, orders dated 14 December 2022 divided the Part B area into two timetables, labelled Redmond Parts B and C. The Atambaya #2 and Taepithiggi determinations fall within the Redmond Part B area. The 'Redmond Part C area' is proceeding separately towards determination at a later stage. 4 Accepting that each of the five groups is recognised as a distinct native title holding group, with their own rights and interests under traditional law and custom in the determination area, the Court makes orders and gives reasons separately for each group. 5 The majority of the Atambaya People's traditional country was the subject of the existing Atambaya determination made in October 2022. This determination relates to the areas to the west and east of that previous determination, being the eastern part of Bertiehaugh Station (Atambaya western area), and areas east of that determination area around Bramwell Station (Atambaya eastern areas). 6 The Court is satisfied that the material filed in the Atambaya #2 determination application demonstrates a credible basis for the traditional connection of the Atambaya People to the determination area. 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.

[14]

THE MATERIAL BEFORE THE COURT 8 The application for consent determination was supported by a principal set of submissions filed by the applicant on 15 June 2023. The State also filed submissions on 15 June 2023. Each set of submissions addressed all of the determinations falling within the McKeown and Redmond Part B timetable areas. The Court has been greatly assisted by the parties' submissions, and the material provided. 9 The applicant relied on a number of affidavits dealing with matters relevant to the determinations. First, an affidavit of Kirstin Donlevy Malyon affirmed on 9 June 2023 (2023 Malyon affidavit). Second, an affidavit of Parkinson Wirrick affirmed on 9 June 2023 (Wirrick 9 June 2023 affidavit). Third, an affidavit of Parkinson Wirrick dated 14 June 2023 (Wirrick 14 June 2023 affidavit). Fourth, paragraphs [5] to [30] of an affidavit filed earlier in these proceedings by Ms Malyon on 27 October 2021 regarding the re-authorisation process undertaken by the applicant in the period from April to September 2021 (2021 Malyon affidavit). The State relied on an affidavit of Kate Evelyn Marchesi affirmed on 12 June 2023. 10 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 2023 Malyon affidavit, she deposes to the process undertaken for determining appropriate group and boundary descriptions for each determination, and describes the way in which the Atambaya People's s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Atambaya Native Title Aboriginal Corporation RNTBC (ICN 9839) was nominated as the prescribed body corporate (PBC) for the Atambaya #2 determination, and annexes to her affidavit the notice of nomination for the PBC and its consent to act as the relevant PBC for the determination area. 11 In relation to the Atambaya #2 determination, the applicant relied on the following material filed in support of the previous Atambaya determination to demonstrate there was a credible basis for connection, and to establish what material had been available to the State for the purposes of the s 87A agreement: (a) expert report by Dr Redmond entitled "Anthropologist's Report: traditional laws, customs and connection to the Bertiehaugh-Bramwell region of Northern Cape York Peninsula" filed on 31 October 2017; (b) amended expert report of Ms Kate Waters dated 5 March 2018 and filed on 6 March 2018; (c) supplementary expert report of Dr Redmond dated 19 December 2018 and filed on 21 September 2022; (d) affidavit of Caleb King filed 21 September 2022 (King affidavit). 12 The applicant relied on the following material annexed to the King affidavit: (a) an apical report of Ms Waters dated 2 August 2021 and filed 21 September 2022 regarding Louisa Hall nee Ducie (Galmoth); (b) a further report of Ms Waters dated 1 November 2021 and filed 21 September 2022 regarding Louisa Hall nee Ducie (Galmoth); (c) a witness statement of Walter Moses dated 17 December 2018 and filed 21 September 2022; (d) a witness statement of Francis Brisbane dated 7 December 2018 and filed 21 September 2022; (e) a witness statement of Gina Nona dated 19 December 2018 and filed 21 September 2022; (f) an apical report of Ms Waters dated 26 July 2021 and filed 21 September 2022 regarding Ralph Coconut; (g) an apical report of Ms Waters dated 26 July 2021 and filed 2021 September 2022 regarding Kakarus; (h) an apical report of Ms Waters dated 3 August 2021 and filed 21 September 2022 regarding Vaseline (Charcoal - father of Vaseline); (i) an apical report of Ms Waters dated 29 January 2021 and filed 21 September 2022 regarding Atunmer and Aitapu and Jack Wantanu McDonell; (j) an apical report of Ms Waters dated 22 January 2021 and filed 22 September 2022 regarding Jipsit; (k) an apical report of Ms Waters dated 22 January 2021 and filed 21 September 2022 regarding Ralph Coconut; (l) an apical report of Ms Waters dated 22 January 2021 and filed 21 September 2022 regarding Willy McDonnell (aka Atunmu Watanu Billy Morgan (Moreton) Willy Tom); (m) an apical report of Ms Waters dated 10 August 2021 and filed 21 September 2022 regarding Wootinba and Peter Sugarbag; and (n) an apical report of Ms Waters dated 12 September 2022 and filed 21 September 2022 regarding Charlie Otomo McDonnell and Charlie McDonnell (father of Polly McDonnell aka Polly Peter). 13 It is apparent from the sequence of this material that a comprehensive and careful process has been undertaken by the applicant, addressing any concerns of the State, including concerns about nominated apical ancestors, to ensure that there was adequate material to support, in particular, the boundary and group descriptions proposed for the determination.

[15]

PROCEDURAL HISTORY 14 The Cape York United #1 claim was filed in this Court in December 2014. It covers various types of tenure, including pastoral leases, protected areas, reserves and areas of unallocated State land. It is the largest native title claim currently before the Court, and covers most of the undetermined parts of Cape York. 15 The complex procedural history and nature of the Cape York United #1 claim is summarised in the Court's reasons for the Kuuku Ya'u and Uutaalnganu (Night Island) determinations made in November 2021: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya'u determination) [2021] FCA 1464 at [3], [12]-[19], [30]-[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]-[20], [28]-[35]. In addition to those determinations, four determinations in this proceeding were also made in July 2022: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773. Three further determinations were made on 6 October 2022: Atambaya determination; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 12) (Gudang Yadhaykenu determination) [2022] FCA 1177; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 13) (NCY#2 independent parcels determination) [2022] FCA 1178. The Court's reasons in each of those determinations also note the complex and individualised process leading to each determination within the overall Cape York United #1 claim.

[17]

The Atambaya People's section 87A agreement 17 Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Atambaya People native title group was thorough and carefully organised. Prior to the proposed authorisation of the s 87A agreement, there were two decision-making processes which needed closely to involve landholding groups: the process to settle boundaries between the Atambaya People and their neighbours; and the process to settle group composition, by identification of apical ancestors. 18 The Boundary Identification Negotiation and Mediation or 'BINM' process was adopted by the applicant, through the CYLC, in April 2020 to deal with the reality existing within the Cape York United #1 claim area that distinctly identifiable groups hold interests in that area: see Kuuku Ya'u determination at [18], [25]-[26] and Uutaalnganu determination at [19], [23]-[24]. The BINM process was employed for all five groups in this round of determinations, and at [71]-[100] of the 2023 Malyon affidavit, Ms Malyon describes the process as it unfolded for each group, including the Atambaya group. 19 Putative boundary descriptions for the Atambaya and Taepithiggi native title groups were developed from desktop research by the CYLC and Dr Redmond. They were provided to the State on 4 December 2020 on a 'without prejudice' basis. Putative boundary descriptions for the Central West Wik and Weipa Peninsula People native title groups were developed from desktop research by the CYLC and Dr McKeown. They were provided to the State on 4 February 2021 on a 'without prejudice' basis. The putative boundary description for the Umpila native title group was developed from desktop research by the CYLC and Dr David Thompson. This was provided to the State on 7 July 2020 on a 'without prejudice' basis. The boundary descriptions were prepared in consultation with anthropologists engaged by CYLC in relation to neighbouring areas. 20 Following the provision of the putative boundary descriptions to the State, the CYLC facilitated consultations with the Atambaya, Central West Wik, Taepithiggi, Umpila and Weipa Peninsula People native title groups. This commenced in September 2020 for the Umpila native title group, January 2021 for the Atambaya and Taepithiggi native title group, and February 2021 for the Central West Wik and Weipa Peninsula People native title groups. 21 For the Atambaya and Taepithiggi native title groups, this consultation involved engaging Dr Redmond for a total of 29 days to consult with native title groups, families and elders from the Atambaya and Taepithiggi groups in relation to their common boundaries. 22 The consultations helped identify who should attend meetings on behalf of the groups and their neighbours, and helped ensure that those people could attend those meetings. The consultations also helped inform the proposed descriptions for the groups. 23 The CYLC held 'preliminary meetings' between November 2020 and September 2021 with each of the Atambaya, Central West Wik, Taepithiggi, Umpila and Weipa Peninsula People groups to discuss boundaries, provide further information about the BINM process, and to receive instructions. Preliminary meetings were open to all members of the respective native title groups. Copies of the applicable notices were sent to all members of each of the native title groups on the CYLC contact database by post and email (where email addresses were available), and were notified on the CYLC website, CYLC Facebook page and community noticeboards. 24 The CYLC facilitated a number of 'boundary meetings' between neighbouring native title groups where instructions were taken as to final descriptions of common boundaries. These took place between 31 March 2021 and 23 June 2022. A CYLC lawyer and anthropologist were present at each boundary meeting. Each of the relevant consultant anthropologists were present for most meetings. 25 At the introductory session for the boundary meetings, each consultant anthropologist provided an overview of the available anthropological materials. The anthropologists supported and facilitated the participation of appropriate group representatives, providing advice and feedback to them about previous anthropological research, communicating their understanding of the research materials, assisting in the translation of maps (including the identification of any particular locations, landmarks or cultural sites), and helping to identify family affiliations to particular areas of country through recollection of genealogical data. Group representatives also had access to the CYLC's genealogical records (subject to confidentiality), private break-out spaces, a series of maps and the State's response to the putative boundary descriptions. At the end of the meetings, agreement as to boundaries by consensus was sought, and if there was agreement, it was recorded in written resolutions. 26 The Atambaya, Central West Wik, Taepithiggi, Umpila and Weipa Peninsula People native title groups met with their neighbours over a period of around 15 months: (a) Umpila and Southern Kaantju native title groups - Wednesday 31 March 2021; (b) Umpila, Uutaalnganu native title group and Southern Kaantju- Thursday 1 April 2021; (c) Northern Kaanju native title group and the Yinwum traditional owner group (being the subgroup of the Weipa Peninsula People with country adjoining the Northern Kaanju native title group): Friday 28 May 2021; (d) Yinwum, Northern Kaanju and Atambaya: Saturday 29 May and Sunday 30 May 2021; (e) Atambaya and Taepithiggi native title group: Monday 31 May 2021; (f) Atambaya native title group: Friday 4 June 2021; (g) Central West Wik, Ayapathu native title group and Northern Kaanju: Tuesday 8 and Wednesday 9 June 2021; (h) Wik Ompom (being a subgroup of Central West Wik, and Yinwum and Mbyiwom traditional owner groups, in turn being subgroups of the Weipa Peninsula People): 10 June 2021; (i) Wuthathi native title group: Wednesday 23 June 2021; (j) Central West Wik, Southern Kaantju and Ayapathu: 29 and 30 June 2021; (k) Taepithiggi: 11 February 2022; (l) Atambaya: 21-22 February 2022; and (m) Atambaya and Wuthathi: Thursday 23 June 2022. 27 The boundary meeting on 31 May 2021 between the Atambaya and Taepithiggi native title groups did not result in agreement as to their common boundary. Mediations facilitated by the CYLC in July 2021 and by this Court in September 2021 also did not result in agreement. The CYLC then facilitated a number of smaller meetings of individuals, families and groups, involving consultation with relevant families, elders and other key persons from the two groups. Additionally, the Taepithiggi native title group itself met on 29 October 2021 and 11 February 2022. The latter meeting resulted in a unanimous resolution approving the proposed boundary as depicted on an A1-sized map shown to each attendee. This same map was then shown to Atambaya traditional owners at meetings of the Atambaya native title group on 21 and 22 February 2022, and discussed with the assistance of Dr Redmond. The proposed boundary was approved on 22 February 2022 by unanimous resolution by the members of the Atambaya native title group in attendance. 28 However, despite boundaries being agreed through this process between the Atambaya native title group and the Taepithiggi and Wuthathi native title groups in 2022, the Taepithiggi and Wuthathi groups subsequently indicated a wish to re-negotiate. Therefore, the first Atambaya determination made in October 2022 related only to the areas undisputed between the Atambaya native title group and the Taepithiggi and Wuthathi native title groups. 29 Between August and October last year, the CYLC facilitated a number of meetings of those groups for the purpose of receiving additional evidence of connection to areas claimed by those groups. The CYLC received no additional evidence relating to the Wuthathi group, and the evidence received in relation to the Taepithiggi group was provided to Dr Redmond, whose opinion as to the Taepithiggi - Atambaya boundary did not change as a result of that evidence. The draft s 87A agreement that was approved by the Atambaya group at the authorisation meeting on 22 February 2023 included the previously agreed boundaries for the areas subsequently disputed by the Wuthathi and Taepithiggi native title groups. 30 I accept the submissions of the parties that the Court can be satisfied that, in the circumstances, the proposed boundaries of the Atambaya #2 determination are appropriate. 31 Group descriptions for the Atambaya, Central West Wik, Taepithiggi, Umpila, and Weipa Peninsula People native title groups were considered at various meetings during the fieldwork phase. In conjunction with the BINM process, the applicant provided to the State a number of reports relating to apical ancestors identified through the BINM who were to be included or excluded from the proposed group descriptions. This included 11 ancestor reports relating to the Atambaya People. I have set out above how the Atambaya #2 group description appropriately reflects that of the previous Atambaya determination of October 2022. The parties reached agreement on the final group description for the Atambaya native title group on 17 November 2021. 32 The s 87A agreements were settled and authorised after the BINM process, and the group description process, were complete. In the 2023 Malyon affidavit, Ms Malyon deposes to the notification of meetings to discuss, and subsequently authorise, the s 87A agreement for the Atambaya #2 determination. The Atambaya #2 authorisation meeting was conducted on 22 February 2023. At that meeting, the group considered the terms of the Atambaya #2 s 87A agreement, and directed the applicant to enter into that agreement. That direction to the applicant brings me to the question of the authorisation of the applicant to enter into separate s 87A agreements.

[18]

The authorisation of the Cape York United #1 applicant 33 The applicant's authority to enter into the Atambaya #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 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. 34 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. 35 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. 36 I adopt those reasons in each of the five 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.

[19]

THE CONNECTION OF THE ATAMBAYA NATIVE TITLE GROUP TO THE DETERMINATION AREA 37 In his 2017 report, and supplementary 2018 report, Dr Redmond presents connection material in relation to the areas he was briefed to report on. That material is informed by the historical, anthropological and archival record, a range of environmental and linguistic data, and on-site field research and interviews with people who claimed a traditional connection to the relevant areas. 38 Dr Redmond describes how the ancestors of the native title group members used, occupied and enjoyed what Dr Redmond describes as a "lawful jurisdiction" over the determination area prior to effective sovereignty. His report describes their continuous use and occupation of the determination areas across succeeding generations to the present day, under a body of shared traditional laws and customs. The 2017 Redmond report makes clear the significant post-colonial pressures imposed on the ancestors of the Atambaya People, and the severe impacts of European colonisation. 39 Despite these impacts, the native title groups Dr Redmond reported on (including Atambaya) were able to "maintain knowledge of traditional places of significance, to regulate access to the Report Area to some degree and to observe and adapt many of the laws and customs which govern and reproduce their society". Dr Redmond describes the nature of these laws and customs, and the way in which these have been passed down generation to generation. Dr Redmond describes these as including stories, traditional knowledge and a set of practices acknowledging spiritual presences in the landscape. In summarising his findings on the continuity of law and custom, Dr Redmond concludes (at [630]-[632] of his 2017 report): The occupation and use of the Report Area is practiced under a historically transformed system of laws and customs rooted in the traditions of the original occupiers of these lands as documented in Sec. 4 of this report. This is indicated by the fact that the people who make up the groupings identified as having a traditional association to the Report Area, like their predecessors who were residents of the missions, stations and small townships across this area, have continued to not only use the area for practical economic and social activities such as fishing, camping and hunting, but also participate in the observation of important aspects of law and custom rooted in the traditions of the regional society. This report has discussed in some detail laws and customs relating to the Report Area's language-labelled groupings and their associated territories, contemporary enactments of laws and customs regarding language identities of persons and country, the relationship between the at-sovereignty patriclans and localised family groupings in the contemporary period, laws and customs regulating kinship and marriage, kinship and naming practices, kinship and normative "demand sharing" practices, kinship and the authority of elders, laws and customs governing decisionmaking and dispute resolution practices, laws and customs relating to country succession, coalescence and legitimate group membership, laws and customs regarding ceremonial performances, including initiatory ceremonies, increase ceremonies and mortuary ceremonies, laws and customs regarding spirit conception and birth-places, country, laws and customs regarding food prohibitions, laws and customs regarding sorcery and medicines, cosmology and normative social practices, the Chiveri/Kwoiyam Ancestral Hero myths, as well as narratives and beliefs concerning the Rainbow Serpent and other Ancestral Spirit Beings. This report has also documented continuities and systematic transformations in regard to the traditional and contemporary land tenure system, kinship and ritual practices, decision-making processes, the inheritance and disposal of rights and interests in land and also in the enactment and promulgation of the body of traditional beliefs and cosmogonic stories which underpin those practices. These include the beliefs concerning the Rainbow Serpent and a host of other elemental and ancestral spirits which are seen to permanently reside in the landscape and which are perceived as continuing to exert a powerful influence in maintaining normative rules governing group and individual interactions with each other and with the lands and waters across the region. 40 The applicant submits that the connection material, including the reports of Dr Redmond, Dr McKeown and Dr Thompson, establishes a credible basis for the proposition that the Atambaya, the Central West Wik, the Taepithiggi, the Umpila, and the Weipa Peninsula People native title groups have maintained their connection to their respective determination areas, under their respective traditional laws and customs since prior to sovereignty. The State supports that submission, and I accept it. 41 The evidence supporting the Atambaya People group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by Dr Redmond and Ms Waters. Ms Waters' work concentrates on the correct identification of apical ancestors, and is, like her other work for other determinations in this proceeding, thorough and careful. The State accepts this material, and there is no objection from the other parties to the present determinations. 42 As I noted in the 2021 determinations, it is the group members who "live and understand their law and custom, and how it connects them to their country": Kuuku Ya'u determination at [68]; Uutaalnganu determination at [59]. The extracts set out in the Atambaya #1 determination from the evidence of Mr Moses, Mr Brisbane and Ms Nona demonstrate the compelling connection material before the Court, which I am satisfied is sufficient to sustain the Atambaya #2 determination.

[20]

THE APPLICABLE REQUIREMENTS OF SECTION 87A 43 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. 44 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. 45 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 46 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).

[23]

Sub-section 87A(4)(b): appropriate to make the orders sought 50 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. 51 In relation to the five 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 Atambaya #2 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. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests. 52 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 its 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.

[26]

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 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 (26 paragraphs)

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