Ross on behalf of the Cape York United #1 Claim Group v State of Queensland - [2024] FCA 743 - FCA 2024 case summary — Zoe

CTHFCA

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

[2024] FCA 743

Federal Court of Australia|2024-07-11|Before: Mortimer CJ

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-07-11

Before

Mortimer CJ

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

INTRODUCTION 1 This determination recognises the native title of the Kowanyama People in relation to an area known as the 'Kowanyama People #3 identified parcels' that was excluded from their existing determinations made in separate proceedings. See: Kowanyama People v State of Queensland [2009] FCA 1192 (Kowanyama determination), Daphney on behalf of the Kowanyama People v State of Queensland [2014] FCA 1149 and Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377. This Kowanyama People #3 identified parcels determination area is entirely surrounded by the Kowanyama determination. This determination is over a total area of approximately 22.14 hectares, with 3.35 hectares being recognised as exclusive native title. Some of the parcels included in this determination are located in the Kowanyama township. 2 This Kowanyama People #3 identified parcels determination is being made on the papers, although broadly concurrently with determinations recognising the native title of the Olkola People, Kowanyama People and Kunjen Olkol People, each determination being made as part of the Cape York United #1 proceeding, and being part of the sixth group of determinations in this proceeding. Included in this tranche of determinations is another determination in favour of the Kowanyama People, referred to as Kowanyama People #2 which is an area of approximately 21,776 hectares of non-exclusive possession native title on the Alice River. 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'. The identified parcels the subject of this determination were first specified in the applicant's report to the Court filed on 16 September 2020 and were managed with these report areas to ensure active case management. The parties are to be commended on the progress made in relation to these identified parcels which represent an important step in finalising recognition of the native title of Kowanyama Peoples over these parcels. 4 The Court is satisfied that all 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 5 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. 6 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 (2024 Wirrick affidavit). Third, 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). 7 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 #3 identified parcels s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Abm Elgoring Ambung Aboriginal Corporation RNTBC (ICN 7163) was nominated as the prescribed body corporate (PBC) for the Kowanyama People #3 identified parcels determination. She annexes to her affidavit the written consent of that PBC to act as the PBC for the Kowanyama People #3 identified parcels determination. 8 The applicant does not rely on any witness statements or affidavits nor any expert evidence in respect of the Kowanyama People #3 identified parcels determination. Instead, the applicant and the State refer the Court to the existing Kowanyama determination. I consider this below.

[5]

The authorisation of the Cape York United #1 applicant 12 The applicant's authority to enter into the Kowanyama People #3 identified parcels 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. 13 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. 14 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. 15 Similar orders are sought in each of the eight determinations being made in July 2024. The State agreed 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.

[7]

THE APPLICABLE REQUIREMENTS OF SECTION 87A 19 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. 20 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. 21 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 22 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).

[10]

Sub-section 87A(4)(b): appropriate to make the orders sought 26 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. 27 In relation to the eight 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 Kowanyama #3 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. 28 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.

[14]

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

Parties

Applicant/Plaintiff:

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

Respondent/Defendant:

State of Queensland

Legislation Cited (25)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Fire and Emergency Services Act 1990(Qld)

Native Title Act 1993(Cth)ss 56, 57, 61, 66, 67, 84D, 87A, 94A, 225

Nature Conservation Act 1992(Qld)

Local Government Act 2009(Qld)

Mineral Resources Act 1989(Qld)

Petroleum Act 1923(Qld)

Petroleum and Gas (Production and Safety) Act 2004(Qld)

Land Act 1994(Qld)

Acts Interpretation Act 1954(Qld)

Corporations (Aboriginal and Torres Strait Islander) Act 2006(Cth)

Post and Telegraph Act 1901(Cth)

Telecommunications Act 1997(Cth)

Electricity Act 1994(Qld)

Stock Route Management Act 2002(Qld)

Aboriginal Land Act 1991(Qld)

Fisheries Act 1994(Qld)

Forestry Act 1959(Qld)

Water Act 2000(Qld)

Planning Act 2016(Qld)

Transport Infrastructure Act 1994(Qld)

Ambulance Service Act 1991(Qld)

Native Title (Queensland) Act 1993(Qld)

Cases Cited (11)

A. Determinations of native title were made in favour of the Kowanyama People on 22 October 2009, 5 December 2012 and 31 October 2014 in Kowanyama People v State of Queensland [2009] FCA 1192, Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377 and Daphney on behalf of the Kowanyama People v State of Queensland [2014] FCA 1149 (the Kowanyama People Determinations) in relation to areas of lands and waters along the south-western coastline of Cape York Peninsula, generally from the Coleman River, in the north, to Staaten River in the south. B. The township of Kowanyama did not form part of the Kowanyama Determinations but is wholly surrounded by the Kowanyama Determinations. C. The Native Title Determination Application was filed on 11 December 2014 and includes all undetermined areas (save for some specified types of tenure which were excluded) within the external boundaries of the Cape York Representative Aboriginal/Torres Strait Islander Body Area. D. This Determination relates to those areas identified in recital B above, being the areas in the township of Kowanyama (referred to in this proceeding as the Kowanyama Identified Parcels) that did not form part of the Kowanyama Determinations, and that may be claimed as part of the Native Title Determination Application. E. The Applicant agrees that the areas listed in Part 1 of Schedule 4 are areas where native title has been wholly extinguished.

DEFINITIONS AND INTERPRETATION 3. In this Determination, unless the contrary intention appears: "Animal" has the meaning given in the Nature Conservation Act 1992 (Qld); "Kowanyama People Part C Native Title Determination" means the native title determination made in Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377; "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); "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).

Cited By (1)

Harris v State Minister for the State of Queensland