ORDER SOUGHT UNDER S 199C(1A)
60 The Kunjen Olkol s 87A agreement reflects that there are rights and interests of parties under two current indigenous land use agreements (ILUA) in relation to parts of the Kunjen Olkol determination area - the Olkola Land Transfer ILUA (QI2014/085) and the PNG Gas Pipeline ILUA (QI2006/043). They are both area ILUAs.
61 In respect of the Olkola Land Transfer ILUA, 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 this ILUA 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 Olkola Land Transfer ILUA.
62 Relevantly to the present situation, s 199C(1)(a) and (b) provide:
(1) Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:
(a) in the case of an agreement under Subdivision B 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 the persons who, under the determination, hold native title in relation to the area are not the same as those who had previously been determined to hold it; or
(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; …
63 The State submits that the applicable provision is s 199C(1)(b), because the Olkola Land Transfer ILUA is an area agreement. I accept that submission.
64 Section 199C(1A) sets out three requirements for the making of an order which will have the effect of ensuring the Registrar does not comply with their otherwise extant obligations under (relevantly here) s 199C(1)(b). 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.
65 In relation to sub-s 199C(1A)(a), the State submits that the Olkola Land Transfer ILUA covers an area located in central Cape York Peninsula including the Olkola National Park and was entered into by Michael Yam, Phillip Yam, Michael Ross, Andrew Malcolm, Fred Coleman, Michael Friday Snr and Christopher Bally on their own behalf and on behalf of the Olkola People, without inclusion of or reference to particular groups as separate parties or reference to those particular groups who authorised the agreement.
66 The State supports and presses for an order under s 199C(1A) out of an abundance of caution in circumstances where the group descriptions of those who authorised the Olkola Land Transfer ILUA do not reflect, on the face of it, the group descriptions proposed in the Kunjen Olkol s 87A agreement.
67 For those reasons, the State submits s 199C(1)(b), and s 199C(1A)(a), are engaged.
68 With respect to sub-s 199C(1A)(b), the State submits this requirement is met because it is the Kunjen Olkol native title group that seeks the order under s 199C(1A).
69 With respect to sub-s 199C(1A)(c), the State submits this requirement is met because the Kunjen Olkol native title group passed resolutions at the Kunjen Olkol authorisation meeting on 28 February 2024, accepting the terms of the Olkola Land Transfer ILUA and directing the applicant to seek an order pursuant to s 199C(1A) that this ILUA not be removed from the Register.
70 The State also submits (at [42]-[43]):
There has been no authority which has considered when s 199C(1)(b) may be engaged. In circumstances where the group descriptions of those groups who authorised the ILUAs do not reflect, on the face of the ILUAs or the register extracts, the group descriptions proposed in the draft s 87A agreements for the relevant groups, and the State is not privy to any materials regarding the original authorisation of the ILUAs, the State supports, and presses for, the proposed s 199C(1A) order out of an abundance of caution.
The State recognises that the form of the order made under s 199C(1A) is a direction to the Registrar not to remove the Peninsula Development Road ILUA, the Kalinga Mulkay ILUA, the Olkola Land Transfer ILUA and the Thingalkal ILUA from the Register. In recognition that the Registrar is not, and cannot otherwise be, a party to the relevant s 87A agreements, the State wrote to the Registrar on 19 February 2024 seeking the Registrar's position with respect to the proposed s 199C(1A) orders. The Native Title Registrar responded on 22 April 2024, indicating that they neither consent nor oppose the order being sought. In those circumstances, the State submits that it is appropriate for the proposed s 199C(1A) order to be made notwithstanding the Registrar has not been joined as a party to this proceeding.
71 The applicant also supports these submissions, as I understand it. I accept that the course of conduct taken by the State in notifying the Registrar was appropriate, and that it is appropriate to make the orders sought out of an abundance of caution.
72 As I have previously explained (see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176 at [78]), 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 claimants who authorised an ILUA and those native title holders 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. Section 199C(1A) is a facultative provision, and should be construed with the principal objects of the Native Title Act of mediation and resolution of claims by consent in mind. As the State submits, there is no authority dealing precisely with the circumstances in which s 199C(1)(b) may be engaged. It is not appropriate where there are s 87A agreements to expand any further upon the construction and operation of s 199C(1)(b).
73 Given the resolution passed by the Kunjen Olkol People, I am satisfied it is appropriate for the order sought by the parties 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.