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[2024] FCA 742
Federal Court of Australia
2024-07-11
Mortimer CJ
Original judgment source is linked above.
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.
THE COURT ORDERS THAT:
BY CONSENT THE COURT ORDERS THAT:
DEFINITIONS AND INTERPRETATION 3. 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); "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).
THE COURT DETERMINES THAT: 13. The native title is not to be held on trust. 14. The Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN: 10247), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and (b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. LIST OF SCHEDULES Schedule 1 - Native Title Holders Schedule 2 - Other Interests in the Determination Area Schedule 3 - External Boundary Schedule 4 - Description of Determination Area Schedule 5 - Areas Not Forming Part of the Determination Area Schedule 6 - Determination Area Map
Schedule 1 - Native Title Holders
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:
Schedule 3 - External Boundary The area of land and waters: Commencing at an internal boundary of Lot 12 on CTH804427 (Oriners) at Longitude 142.192664° East, Latitude 15.347610° South, also being the western boundary of an unnamed road corridor and a point on the southern boundary of Kowanyama People Part B Native Title Determination (QCD2012/016); then south westerly along that internal lot boundary until the intersection with the southern boundary of Oriners, also being the northern bank of Alice River; then south westerly a short distance until a point on the southern bank of Alice River at Longitude 142.119391° East, also being the northern boundary of Lot 5 on SP215744 (Errk Oykangand National Park (CYPAL)) and Kowanyama People Part D Native Title Determination (QCD2014/016); then generally westerly along the northern boundary of that determination, northerly along the eastern boundary of Kowanyama People Native Title Determination (QCD2009/003), and south easterly along the southern boundary of Kowanyama People Part B Native Title Determination (QCD2012/016) back to the point of commencement, also described as: generally westerly along the southern bank of the Alice River and northern boundary of Lot 5 on SP215744 (Errk Oykangand National Park (CYPAL)) until a point on the southern bank of Alice River at the prolongation south westerly of the western boundary of Lot 12 on CTH804427; then northerly along that prolongation across that river to the south-western corner of Lot 12 on CTH804427 (Oriners); then northerly and south easterly along the western and northern boundaries of that lot until the point of commencement. Data Reference and source Cadastral data sourced from Department of Resources, Queensland (published 07/08/2023). Watercourse Lines sourced from Department of Resources, Queensland (published 05/10/2022). Mountain Ranges, Beaches and Sea Passages sourced from Department of Resources, Queensland (27/07/2023). Local Government Areas sourced from Department of Resources, Queensland (published 23/11/2023). Native Title Determinations and Representative Aboriginal and Torres Strait Islander Body boundaries sourced from the Commonwealth of Australia, National Native Title Tribunal (published 03/08/2023). Reference datum Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees. Use of Coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
Schedule 4 - Description of Determination Area The Determination Area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the table immediately below, and depicted in light blue the Determination Area map in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5. Area description (at the time of the Determination) Determination Map sheet reference That part of Lot 12 on CTH804427 that falls within the External Boundary Sheet 1 Save for any waters forming part of a lot on plan, all rivers, creeks, streams and lakes within the External Boundary described in Schedule 3, including but not limited to: Old Koolatah Waterhole; Alice River; and Bottle Creek.
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:
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 Kowanyama People. This determination is being made on the day after determinations recognising the native title of the Olkola and Kunjen Olkol Peoples. Concurrently with these determinations, the Court also makes determinations recognising the jointly held native title of these groups over certain lands and waters, as well as a determination recognising the native title of the Southern Kaantju people over a parcel excluded from their previous determination, and a determination recognising the native title of the Kowanyama People over further identified parcels. Those determinations are being made on the papers. 2 This is the sixth 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 parts of the Cape York United #1 claim, within geographic regions that have been described by the parties and in the Court's case management timetables as the 'Corrigan and Taylor 2 (Sefton Oriners) Timetable Area'. This country is generally located in the central Cape York Peninsula area. As well as being neighbours, and sharing some country as some of the shared determinations being made in this round of determinations recognise, there are many kinship and traditional connections, including language and story connections, between the Olkola, Kunjen Olkol and Kowanyama Peoples. 4 Accepting that each of the three 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 part of the Kowanyama People's traditional country being recognised today includes land and waters in the central-western region of the Cape York Peninsula adjacent to part of the Alice River and is a total area of approximately 21,776 hectares of non-exclusive native title. 6 As both the applicant and State's submissions note, the Kowanyama People are already recognised as the native title holders for large tracts of country around the area being recognised today. See: Kowanyama People v State of Queensland [2009] FCA 1192 (Kowanyama determination), Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377 (containing two determinations, labelled Part B and Part C), Daphney on behalf of the Kowanyama People v State of Queensland [2014] FCA 1149 (containing the determination labelled Part D). The agreement under s 87A being made by the Court today is entitled the Kowanyama People #2 determination. This is the first determination in favour of the Kowanyama People under the umbrella of the Cape York United #1 claim. 7 The applicant and State note that the group description proposed for the Kowanyama People #2 determination being made today and the Kowanyama People #3 identified parcels determination being made on the papers is more extensive in its reference to apical ancestors than those contained in previous determinations in favour of the Kowanyama People made to date. Those apical ancestors are Bonbatable, Cecil (brother of Kangaroo), Dr Dick, Possensnek, Lily Goatboy (sibling of George Black), Moses and Nellie Highbury (Patterson). 8 Both the applicant and the State submit that the addition of those apical ancestors has been agreed on the basis of further research that has been undertaken since the earlier determinations and the further material that has been provided to the State supports those changes. The applicant submits that the more extensive group description is justified by the expert opinion of Ms Kate Waters. 9 The material filed in support of the determination being made today in favour of the Kowanyama People reveals the traditional connection of the Kowanyama People to the determination area, and the importance of that connection being passed down to future generations. 10 The Court's orders represent additional recognition by Australian law of the land and waters of the Kowanyama People. The Court's orders will continue to assist the preservation and protection of Kowanyama country, as Kowanyama People have done for thousands of years, so that their knowledge and law can continue to be passed down to future generations. 11 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 MATERIAL BEFORE THE COURT 12 The applications for consent determinations were supported by two sets of submissions filed by the applicant on 3 June 2024: one in relation to seven of the determinations, and another relating to the Southern Kaantju #2 determination. The State also filed submissions on 7 June 2024. The Court has been greatly assisted by the parties' submissions, and the material provided. 13 The applicant relied on a number of affidavits dealing with matters relevant to the determinations. First, an affidavit of Ms Kirstin Donlevy Malyon affirmed on 3 June 2024 (2024 Malyon affidavit). Second, an affidavit of Mr Parkinson Wirrick affirmed on 31 May 2024. 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 State relied on an affidavit of Ms Carrie Tobler affirmed on 5 June 2024. 14 Ms Malyon is the Principal Legal Officer at the Cape York Land Council, and has had carriage of the Cape York United #1 claim. In the 2024 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 Kowanyama People #2 s 87A agreement was approved, including pre-authorisation and authorisation meetings. 15 Ms Malyon deposes to how the Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN 10247) was nominated as the prescribed body corporate (PBC) for the Kowanyama People #2 determination. She annexes to her affidavit the PBC's consent to its nomination to act as the PBC for the determination area. 16 In relation to the Kowanyama People #2 determination, the applicant relies on the following material to demonstrate there is 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 John Taylor dated 14 November 2017 and filed 16 November 2017; (b) expert report by Dr Anthony Redmond dated 26 April 2023 and filed 31 May 2024; (c) supplementary expert report by Ms Kate Waters dated 26 April 2023 and filed 31 May 2024; (d) witness statement of Mr Simpson Yam dated 6 December 2018 and filed 31 May 2024; (e) witness statement of Ms Charlotte Yam dated 18 January 2019 and filed 31 May 2024; (f) apical report of Ms Waters dated 23 October 2023 regarding Cecil (brother of Kangaroo) and filed 31 May 2024; (g) apical report of Ms Waters dated 23 October 2023 regarding Dr Dick and filed 31 May 2024; (h) apical report of Ms Waters dated 23 October 2023 regarding Moses (father of Elsie) and filed 31 May 2024; (i) apical report of Ms Waters dated 23 October 2023 regarding Lily Goatboy and filed 31 May 2024; and (j) apical report of Ms Waters dated 23 October 2023 regarding Possensnek and filed 31 May 2024. 17 It is apparent from the dates of some of this material that a careful and iterative process has been undertaken by the applicant, addressing any concerns of the State, explaining how debates with the neighbours of the Kowanyama People have been resolved, and ensuring that there was adequate material to support, in particular, the boundary and group descriptions proposed for this determination.
PROCEDURAL HISTORY 18 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. 19 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, there have been 16 further consent determinations made in this proceeding prior to this round of determinations, the most recent of which being the four determinations made in November 2023. 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.
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.
The authorisation of the Cape York United #1 applicant 33 The applicant's authority to enter into the Kowanyama People #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 Similar orders are sought in each of the eight determinations being made in July 2024. The State agrees with this proposal. I adopt the above reasons in each of the eight determinations now made. For the reasons given in the extract above, I continue to consider such orders are appropriate.
THE CONNECTION OF THE KOWANYAMA NATIVE TITLE GROUP TO THE DETERMINATION AREA 37 The applicant submits that the connection material, including the reports of Dr Taylor, Dr Redmond and Ms Waters, establishes a credible basis for the proposition that the Kowanyama People have maintained their connection to their determination area, under their respective traditional laws and customs since prior to sovereignty. The State supports that submission, and I accept it. 38 Opinion evidence supporting the Olkola, Kowanyama People and Kunjen Olkol group descriptions, and the identification of apical ancestors, is found throughout the reports prepared by 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, meticulous. The State accepts this material, and there is no objection from the other parties to the present determinations. 39 Finally, it is appropriate to set out here some of the accounts given by the Kowanyama People native title group members, whose lived experiences and connections to culture and country provide the foundation for this determination. This testimony is central to establishing a credible basis for the recognition of native title. 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]. 40 Mr Simpson Yam is a member of the Cape York United #1 native title claim group and is also a member of the Kowanyama People through his Dad, Frank Yam (also known as Frank Potato). Mr Yam is the most senior male member of the Yam family. Mr Yam signed a witness statement in this proceeding on 6 December 2018. 41 In his witness statement, Mr Yam explains how he is connected to his Dad's country: We are also connected to our country through our totems. Dad's totems are the yam and the red tail catfish and it is because of his totems me and the Yam family have a special connection to Koolatah, Sefton and Oriners. Koolatah is a very special place and it is known as our area because my Dad, me and my brothers and sisters were all born there and lived there. So, we are connected to our country because this was Dad's country and we are connected through our totems. 42 Mr Yam also explains the importance of passing knowledge about country onto the next generation (at [54] of his witness statement): When myself and my sisters are gone, then someone else will become the boss for the family. A lot of my knowledge is being handed down to the next generation to people like Charlotte [Yam] who is my brother Paddy's daughter. But it will be for the family to talk about who might be the bosses for our country. 43 Mr Yam explains the role of the bosses from different families in making decisions about country and the responsibility for looking after places, especially special places such as "rainbow story" places. If people not from this country wanted to visit, Mr Yam explains how they would need to seek permission and follow rules for those places. If those rules were not followed, there are consequences such as "get[ting] lost or something bad might happen if they go to a poison place" (at [57] of Mr Yam's witness statement). Mr Yam explains that a stranger needs to be introduced to country (at [77] of Mr Yam's witness statement): Strangers to country get blessed by pouring water on their head and introducing them to the old people. When this is done they will be safe. If they don't get blessed things will go wrong, like a mini storm will come through or they will get lost on country. 44 Mr Yam continues (at [67] of his witness statement): Me and the members of the Yam family can go out on our country whenever we want, to do whatever we want, but we must follow our rules that were told to me by my old Dad, Lefty and my sisters Hazel and and [sic] Maudie. When I was working with Dad and Lefty I would watch them do things like sing out to the ancestors when they were on a special place on country, like a burial area or when they were hunting or fishing they would ask the old people to catch a fish or a turtle or a wild pig. My sisters Hazel and Maudie would also teach me these rules about our ways and they told me that if I didn't follow these rules the old people would get wild with me and something might happen to me like get lost on country or become cripple. 45 Ms Charlotte Yam is also a member of the Cape York United #1 native title claim group. Ms Yam is also a member of the Kowanyama People native title claim group. Ms Yam notes that she was a member of the persons who were part of the applicant for the Kowanyama People determination: see Daphney on behalf of the Kowanyama People v State of Queensland [2014] FCA 1149. Ms Yam signed a witness statement in this proceeding on 18 January 2019. 46 Ms Yam explains her connection to Kowanyama country (at [4] of her witness statement): I am descended from Frank Yam, my grandfather, through my dad, one of the named ancestors appearing in the Kowanyama People's native title application. I am also descended from Goggle Eye, through my mum. 47 In her witness statement, Ms Yam explains how she learnt about country and the importance of passing on this knowledge to her children (at [35]-[36] of her statement): An important rule that we have is to introduce new members of the family to our ancestors and tell them who that child is. We go and talk to the old people and if we know where someone is buried we go to their grave and talk to them. We introduce new children, tell them what is happening in the family and ask them to keep us safe while we are visiting them. This is also how our children start learning about where there country is. This is one way how I learnt where country is. We do this when the children are very young and we keep taking them back to country throughout their life and take them camping especially up to Oriners where there is a homestead that we stay in when we are there. 48 Ms Yam also explains the importance of introducing strangers to country (at [109] of her witness statement): An important rule that I have learnt from watching dad and his brothers and sisters is that we must introduce strangers to the country. Strangers are taken to the creek or lagoon where they are blessed by putting water on the hair and calling out to the spirits of our deceased ancestors to introduce them. This is done so that the old people know that you are on country. If we don't do this, the spirits of the ancestors might take the stranger away somewhere, or if they camp overnight the spirits will send big winds or a storm and torment them and lead them away. They might even become cripple or deaf.
THE APPLICABLE REQUIREMENTS OF SECTION 87A 49 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. 50 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. 51 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 52 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 53 As the applicant sets out at [41]-[46] 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.
Sub-section 87A(4)(a): orders within power 54 For the reasons set out at [47]-[52] of the applicant's submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court. 55 The Cape York United #1 application is valid and there is no extant determination of native title in relation to the proposed 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 56 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. 57 In relation to the eight determinations, including this determination for the Kowanyama People, 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. 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 generally 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. 58 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. 59 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.
NOMINATION OF A PRESCRIBED BODY CORPORATE 60 A PBC has been nominated under ss 56 or 57 of the Native Title Act for each of the eight determinations. In the 2024 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. The PBC nominated for the Kowanyama People #2 determination is the Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN 10247).
THE STATE OF QUEENSLAND AS A RESPONDENT 61 In Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 24) (Olkola determination) [2024] FCA 740 at [53] to [106], I conclude there is nothing irregular or inappropriate, let alone unlawful, about the State of Queensland being named as a respondent to this proceeding, despite the literal terms of s 84(4) of the Native Title Act. I explain why I have reached that conclusion in some detail in those reasons, and I adopt the conclusion and reasoning in this determination.
CONCLUSION 62 The Cape York United #1 claim continues to be a highly complex proceeding. This round of determinations, including the shared country determinations, demonstrates the care and goodwill that is needed between neighbours to show how robust traditional owner-led negotiations about boundaries can lead to positive results. 63 There continues to be a high level of cooperation amongst the parties to the proceeding, and the Court has been greatly assisted by their respective efforts. Like the ones which have gone before it, the Kowanyama People #2 determination is a testament to the dedication of a significant number of individuals acting in the interests of the Kowanyama People. In particular the Court acknowledges the members of the Cape York United #1 claim applicant, and their committed and highly capable legal representatives, anthropologists, and other expert advisers. The continued devotion of considerable resources to the resolution of this proceeding by the CYLC has been the key to the fulfilment of the ambitious timetable agreed between the parties and endorsed by the Court. 64 The Court recognises the critical role played by the State of Queensland, its officers and various departmental officials and its legal representatives, whose contributions to the continued progress of determinations within the Cape York United #1 proceeding area have been undertaken with the highest level of skill and commitment. The Court is grateful too for the cooperation and timely participation of all other parties to the proceeding, their legal representatives and other advisers. 65 The Court commends the work of Judicial Registrar Simon Grant in the processes that have led to the Court's decisions today. The Court thanks all its staff for their work behind the scenes in relation to mediations, hearings, travel, communications and preparation of orders and reasons. In this round of determinations, it is appropriate in particular to acknowledge the past contribution of Mr Jared Lane, the Court's National Logistics and Remote Hearing Coordinator, whose role has been integral to the conduct of case management conferences and mediations during the process leading up to agreements, and to successful conduct of determination hearings. Mr Lane has recently left the Court to take up a position with the Queensland Government's Truth-telling and Healing Inquiry, and the Court wishes him well. The work of all the Court's staff is just as vital to the outcome today as any of the more visible work a Judge might do. 66 The Court's final acknowledgment should be saved for the Kowanyama People themselves. While there have been previous determinations recognising the native title held by the Kowanyama People, the Court is confident that this determination is still of considerable significance to the claimants. It is another step in the struggle of this country's First Nations Peoples to regain some control over what was taken away from them, and to make their own choices about how their country and its resources are protected, used and maintained. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer.
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 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 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 Eighth Respondent: OLKOLA ABORIGINAL CORPORATION
Ross on behalf of the Cape York United #1 Claim Group
State of Queensland