Ross on behalf of the Cape York United #1 Claim Group v State of Queensland - [2024] FCA 1360 - FCA 2024 case summary — Zoe

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

[2024] FCA 1360

Federal Court of Australia|2024-11-25|Before: Mortimer CJ

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-11-25

Before

Mortimer CJ

Catchwords

NATIVE TITLE - consent determination - nomination of prescribed bodies corporate

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - nomination of prescribed bodies corporate

Judgment (12 paragraphs)

[1]

INTRODUCTION 1 The determination area is part of the pastoral lease known to this point in this proceeding as Picaninny Plains, a name which may carry hurtful connotations for First Nations People. The determination area comprises land around the site of the station homestead, roughly 26 square kilometres. It is formally known as Part of Lot 2 on SP140870. There are other proprietary interests in the area, including those held by Cook Shire Council (the relevant local government) and the relevant lessees of the land, the Tony and Lisette Lewis Settlement Pty Ltd and the Australian Wildlife Conservancy. 2 By its orders today, the Court recognises that each of the Northern Kaanju People and the Central West Wik People hold overlapping, but separate and distinct, native title interests in the determination area. This determination has been made on the papers, with the parties' agreement. 3 This is the seventh tranche of consent determinations in the Cape York United #1 claim proceeding. The determination area forms part of the geographic region that has been described by the parties and in the Court's case management timetables as the 'Northern Kaanju, Southern Kaantju, Ayapathu and Umpila Native Title Groups Timetable Area' - or the 'Kwok Part B Timetable Area', a reference to Dr Natalie Kwok, the anthropologist who has undertaken a lot of work in preparation for the determinations in this region. 4 In the Cape York United #1 claim proceeding, the majority of the Northern Kaanju People's country was the subject of the first Northern Kaanju determination on 5 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. Similarly, the majority of the Central West Wik People's country was the subject of the first Central West Wik determination on 6 July 2023: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination) [2023] FCA 733. 5 The determination area is surrounded by the areas that were determined in favour of the Northern Kaanju People in the first Northern Kaanju determination and the Central West Wik People in the first Central West Wik determination. 6 The Court is satisfied that all of the requirements of the Native Title Act 1993 (Cth) have been met, that 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 7 The application for this particular determination was supported by a set of submissions filed by the applicant on 24 October 2024. The State also filed submissions on 1 November 2024. The Court has been assisted by the parties' submissions, and the material provided. 8 The applicant relied on a number of affidavits. First, an affidavit of Ms Michelle Amanda Cioffi affirmed on 23 October 2024 (2024 Cioffi affidavit). Second, paragraphs [63] to [72] of an affidavit filed earlier in this proceeding by Ms Kirstin Donlevy Malyon on 2 June 2022 regarding the process by which the Northern Kaanju Native Title Group agreed to the s 87A agreement on terms with which the proposed determination area is consistent (2022 Malyon affidavit). Third, paragraphs [5] to [30] of an affidavit filed earlier in this proceeding 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 applicant also relied on the affidavits of Mr Parkinson Wirrick filed on 22 October 2021 (2021 Wirrick affidavit) and 2 June 2022 (2022 Wirrick affidavit). 9 Ms Cioffi is the Principal Legal Officer at the Cape York Land Council, and has had carriage of the Cape York United #1 claim since September 2024. Ms Cioffi refers to the 2022 Malyon affidavit which describes the way in which the s 87A agreement was approved, including pre-authorisation and authorisation meetings in 2022. The 2022 Malyon affidavit deposes to how the Northern Kaanju Aboriginal Corporation RNTBC (ICN 9756) was nominated as the prescribed body corporate (PBC) for the determination area in trust for the Northern Kaanju Native Title Group, even though there could not be a determination for the determination area at that time. Ms Malyon annexes to her affidavit the notice of nomination for that PBC and its consent to act as the relevant PBC for the determination area. 10 The proposed determination in favour of the Central West Wik Native Title Group had not progressed at exactly the same time, but rather a little later and this group did not have its principal country recognised until July 2023. 11 For this determination area, surrounded by the country of the two groups, the terms of s 68 of the Native Title Act meant there could only be one determination of native title for an area. Practically speaking, that meant the Northern Kaanju People needed to wait until after the principal determination in favour of the Central West Wik People in July 2023, and then both groups had to await the finalisation of a specific s 87A agreement about this determination area. The authorisation process for the Central West Wik Native Title Group was planned for early 2024, but was delayed by sorry business. 12 The 2024 Cioffi affidavit describes the way in which the s 87A agreement was ultimately approved, including pre-authorisation and authorisation meetings for each group. Ms Cioffi deposes to how the Ngan Aak-Kunch Aboriginal Corporation RNTBC (ICN 4097) was nominated as the PBC for the determination area for the Central West Wik Native Title Group. 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. As the State submitted at [11] of its submissions: The notifications for the Northern Kaanju Authorisation Meeting identified on the map that the Proposed Determination Area was to be shared between the two groups and the notices for the Central West Wik Authorisation Meeting clearly identified the Proposed Determination Area was to involve separate and distinct native titles with the Northern Kaanju People which geographically overlapped. 13 In relation to the recognition of the Northern Kaanju People's native title in the determination area, the applicant relied on the following material filed in support of the first Northern Kaanju 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) the expert report by Dr Kwok entitled "Northern Central and Princess Charlotte Bay Region" filed 16 November 2017; (b) the amended expert report of Ms Kate Waters dated 5 March 2018 and filed on 6 March 2018; and (c) the supplementary expert report by Dr Kwok dated April 2019, and annexed to the 2022 Wirrick affidavit; (d) the witness statement of Rodney Daniel Accoom dated 12 March 2019, and annexed to the 2022 Wirrick affidavit; (e) the witness statement of Robert Nelson dated 28 March 2019, and annexed to the 2022 Wirrick affidavit; (f) the apical report of Ms Waters dated 15 May 2020 regarding Billy Chungo, and annexed to the 2021 Wirrick affidavit; (g) the apical report of Ms Waters dated 22 May 2020 regarding Dick York, and annexed to the 2022 Wirrick affidavit; (h) the apical report of Ms Waters dated 16 April 2021 regarding Billy Wenlock (Ukunchal), and annexed to the 2021 Wirrick affidavit; (i) the apical report of Ms Waters dated 6 August 2021 regarding John A-chichin-ga (father of Dick York), and annexed to the 2022 Wirrick affidavit; (j) the apical report of Ms Waters dated 9 August 2021 regarding Peter Boyd and Polly Kepple, and annexed to the 2022 Wirrick affidavit; (k) the additional apical report of Ms Waters dated 25 January 2022 regarding Peter Boyd and Polly Kepple, and annexed to the 2022 Wirrick affidavit; (l) the report of Ms Waters dated 1 June 2022 concerning the amended group description for Northern Kaanju, and annexed to the 2022 Malyon affidavit; and (m) the report of Ms Waters dated 22 May 2022, entitled "Response on Dick York in relation to the Kwok Report Area", and annexed to the 2022 Malyon affidavit. 14 In relation to the recognition of the Central West Wik People's native title in the determination area, the applicant relied on the following material filed in support of the first Central West Wik 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) the expert report by Dr Frank McKeown entitled "Anthropological Report" filed on 23 January 2018; (b) Ms Waters' 2018 report; (c) the supplementary expert report of Dr McKeown dated 26 March 2019, and annexed to an affidavit of Mr Wirrick filed on 9 June 2023 (2023 Wirrick affidavit); (d) the witness statement of Robert Nelson dated 28 March 2019, and annexed to the 2022 Wirrick affidavit; (e) the affidavit of Douglas Ahlers dated 4 April 2019, and annexed to the 2022 Wirrick affidavit; (f) the witness statement of Willie Lawrence dated 8 April 2019, and annexed to the 2023 Wirrick affidavit; (g) the apical report of Ms Waters regarding Jimmy Lawrence dated 29 January 2021, and annexed to the 2023 Wirrick affidavit; (h) the apical report of Ms Waters regarding Peter Boyd and Polly Kepple dated 9 August 2021, and annexed to the 2022 Wirrick affidavit; (i) the additional apical report of Ms Waters regarding Peter Boyd and Polly Kepple dated 25 January 2022, and annexed to the 2022 Wirrick affidavit; (j) the apical report of Ms Waters regarding Toby Ross dated 10 August 2021, and annexed to the 2023 Wirrick affidavit; (k) the additional information report by Ms Waters regarding Toby Ross dated 20 August 2021, and annexed to the 2023 Wirrick affidavit; (l) the further report of Dr Kevin Murphy and Ms Waters dated 23 February 2023, and annexed to the 2023 Wirrick affidavit; and (m) the report of Dr Murphy and Mr Mark Winters concerning the proposed Central West Wik native title determination group description dated 13 June 2023 and annexed to Mr Wirrick's affidavit filed on 14 June 2023. 15 The State relied on the State's various submissions filed on: (a) 10 June 2022 in respect of the first Northern Kaanju determination; (b) 15 June 2023 in respect of the first Central West Wik determination; and (c) 12 November 2021 in respect of Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya'u determination) [2021] FCA 1464. 16 Additionally, the State relied on the 2021 Malyon affidavit.

[4]

The authorisation of the Cape York United #1 applicant 19 The applicant's general authority to enter into the s 87A agreement for the determination area stems from the re-authorisation process which occurred in the Cape York United #1 claim proceeding between April and September 2021. This process is described in the 2021 Malyon affidavit, and the Court described and endorsed it in the Kuuku Ya'u determination at [30]-[37] and the Uutaalnganu determination at [28]-[35]. 20 In the Kuuku Ya'u determination at [38]-[50] and the 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 determination at a more local level, in light of the change in the way the claim was proceeding and the re-authorisation process. 21 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 the Kuuku Ya'u determination and [48] in the 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. 22 Similar orders are sought in this determination. The State agreed with this proposal. I adopt the above reasons in this determination. For the reasons given in the extract above, I continue to consider such orders are appropriate.

[6]

THE APPLICABLE REQUIREMENTS OF SECTION 87A 27 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. 28 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 Native Title 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. 29 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 30 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).

[9]

Sub-section 87A(4)(b): appropriate to make the orders sought 34 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 determination and the Uutaalnganu determination, I adopt and apply the observations I made in Drury and Taylor here. 35 In relation to this determination, I am satisfied all parties have continued the methodical and careful approach to all relevant issues necessary to reach agreement, including in relation to other interests in the determination area. The respective group members have had carefully planned opportunities to participate in decision-making about the proposed s 87A agreement, and 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. 36 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. 37 In relation to this determination, the State explains in its written submissions at [12]-[13] why there was a credible basis for it to agree to the recognition of native title that occurs through the Court's orders in relation to this determination area. Of course, in this particular case, the credible basis derives in large part from the first Northern Kaanju determination and first Central West Wik determination. 38 The role of the State of Queensland in the detailed step-by-step process in the Cape York United #1 claim proceeding has involved considerable human and financial resources, and the Court acknowledges its continued dedication to assisting group members to secure determinations of native title wherever possible. Other respondents to the Cape York United #1 claim proceeding have also derived considerable benefit from the contribution by the State, which has relieved those respondents of a great deal of work.

[12]

Associate: Dated: 25 November 2024 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 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 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 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 Ninth Respondent: GAVIN DEAR Fiftieth Respondent: SCOTT ALEXANDER HARRIS 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 Ninth Respondent ELAINE LIDDY Sixtieth Respondent KAREN LIDDY Sixty First Respondent GORDON PETER Sixty Second Respondent ROBERT SPRATT Sixty Third Respondent GAVIN BASSINI Sixty Fourth Respondent GREGORY PASCOE Sixty Fifth Respondent MALCOLM CONGOO Sixty Seventh Respondent DAWN KYLE Sixty Eighth Respondent JULIE WARRADOO Sixty Ninth Respondent LORRAINE WARRADOO Seventieth Respondent GARY WARRADOO

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

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Judgment (12 paragraphs)

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