The Kowanyama People #2 section 87A agreement
20 Like the previous and completed s 87A processes in this proceeding, the process undertaken by the CYLC with the Kowanyama People native title group was methodical. Prior to the proposed authorisation of the s 87A agreement, there were two decision-making processes which needed to involve landholding groups: the process to settle boundaries between the Kowanyama People and their neighbours; and the process to settle group composition, by identification of apical ancestors.
21 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 the Olkola, Kowanyama People and Kunjen Olkol native title groups' claims. This is what Ms Malyon describes in the 2024 Malyon affidavit at [57]-[74].
22 Putative boundary descriptions for the Olkola, Kowanyama People and Kunjen Olkol native title groups were developed from desktop research by the CYLC and Dr Redmond. They were provided to the State on 12 May 2023 on a 'without prejudice' basis. The boundary descriptions were prepared in consultation with anthropologists engaged by CYLC in relation to neighbouring areas.
23 Fieldwork and desktop research about boundaries was carried out between 2020 and 2022, noting that much of this had to occur under challenging conditions imposed by the COVID-19 pandemic and consequent restrictions. Following the provision of the putative boundary descriptions to the State in May 2023, the CYLC facilitated consultations with the Olkola, Kowanyama People and Kunjen Olkol native title groups. This commenced in July 2023 after approximately three years of consultation, research and reporting by Dr Redmond, following on from work done by Dr Brendan Corrigan. However, in his report, Dr Redmond states that his report is based on anthropological research in this area conducted since 2012.
24 For the Olkola, Kowanyama People and Kunjen Olkol native title groups, this consultation involved engaging Dr Redmond for a total of 11 days from July to December 2022 to consult with relevant families, elders and other key persons in the Cape York Region. It also involved engaging Mr Ray Wood, Dr Kevin Mayo, Dr Natalie Kwok and Mr Mark Winters as consultant anthropologists for neighbouring groups to discuss common boundaries, including those between the Thaypan, Possum and Western Yalanji native title groups, and the Lama Lama and Ayapathu native title groups.
25 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.
26 The CYLC held 'preliminary meetings' between May 2023 and October 2023 with each of the Olkola, Kowanyama People and Kunjen Olkol native title groups to discuss boundaries, provide further information about the BINM process, and to receive instructions. The first tranche of the preliminary meetings were open to all members of the respective native title groups. The second tranche of the preliminary meetings were open to those representatives specifically nominated by their respective native title groups at the first tranche of meetings. 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.
27 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 April 2021 and October 2023. A CYLC lawyer and anthropologist were present at each boundary meeting. Each of the relevant consultant anthropologists were present for most meetings.
28 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.
29 The Olkola, Kowanyama People and Kunjen Olkol native title groups met with their neighbours over a period of around two and a half years:
(a) Ayapathu, Lama Lama, Kuku Thaypan and Olkola native title groups: 20-21 April 2021;
(b) Thaypan, Possum, Kuku Warra, Olkola and Western Yalanji native title groups: 16 November 2022;
(c) Olkola and Kunjen Olkol native title groups: 10 October 2023;
(d) Kunjen Olkol and Kowanyama People native title groups: 11 October 2023; and
(e) Kunjen Olkol and Western Yalanji native title groups: 12 October 2023.
30 Members of the Kowanyama People native title group attended these meetings, and agreement was reached as to boundaries.
31 Group descriptions for the Olkola, Kowanyama People and Kunjen Olkol 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 five ancestor reports relating to the Kowanyama People #2 determination.
32 The s 87A agreements were settled and authorised after the BINM process, and the group description process, were complete. The Kowanyama People authorisation meeting was conducted on 27 February 2024. At that meeting, the group considered the terms of the Kowanyama People #2 s 87A agreement, and voted to direct the applicant to enter into that agreement. The direction to the applicant brings me to the question of the authorisation of the applicant to enter into separate s 87A agreements.