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[2024] FCA 746
Federal Court of Australia
2024-07-12
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. This native title determination comprises country jointly held by the Kowanyama People, the Olkola People and the Kunjen Olkol People. B. 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:
BY CONSENT THE COURT DETERMINES 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).
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 the junction of the centrelines of Alice River and Crosbie Creek, then northerly and south easterly until the intersection with the southern bank of Alice River, also being the northern boundary of Lot 13 on CTH3 (Koolatah) and Kowanyama People Part B Native Title Determination (QCD2012/016) at Longitude 142.677962° East, passing through the following coordinate points: Longitude ° East Latitude ° South 142.415146 15.540445 142.444867 15.542447 142.617286 15.648138
then generally north westerly along the southern bank of the Alice River and the northern boundaries of that lot and determination until a point at Longitude 142.418080° East; then northerly a short distance to 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 in the maps 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 Area 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: Alice River; and Crosbie 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 This determination recognises the jointly held native title of the Kowanyama People, Kunjen Olkol and Olkola native title groups in relation to an area adjoining the Alice River. The Kowanyama People, Kunjen Olkol and Olkola jointly held area encompasses 13,009.37 hectares of non-exclusive native title. 2 The determination is being made on the papers, broadly concurrently with a number of determinations recognising the native title of the Olkola People, Kowanyama People and Kunjen Olkol People. Each determination arises within the Cape York United #1 proceeding, and is part of the sixth group of determinations in this proceeding. The Court also makes a determination recognising the native title of the Southern Kaantju people in relation to an area that was excluded from their earlier determination in this proceeding. 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'. 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.
THE MATERIAL BEFORE THE COURT 5 The applications for this group of 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 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. 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). The State relied on an affidavit of Ms Carrie Tobler affirmed on 5 June 2024. 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, Kunjen Olkol and Olkola jointly held area s 87A agreement was approved, including pre-authorisation and authorisation meetings. She deposes to how the Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN 10257) was nominated as the prescribed body corporate (PBC) for the Kowanyama People, Kunjen Olkol and Olkola jointly held area determination. 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. 8 In relation to the Kowanyama People, Kunjen Olkol and Olkola jointly held area determination, the applicant relied on a range of material to demonstrate there was a credible basis for the connection of the Olkola, Kunjen Olkol and Kowanyama Peoples to the relevant determination areas, and to establish what material had been available to the State for the purposes of the s 87A agreements. I have canvassed that material in the individual determinations made for each of these groups. 9 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 agreement was reached between the Olkola People, Kunjen Olkol People and Kowanyama People, and any discussions with their neighbours resolved. This agreement making can be especially delicate in relation to shared country. I am satisfied the applicant and its legal representatives have ensured there was adequate material to support, in particular, the boundary and group descriptions proposed for these determinations.
PROCEDURAL HISTORY 10 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. 11 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, Kunjen Olkol and Olkola jointly held area section 87A agreement 12 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, Kunjen Olkol and Olkola native title groups and their neighbours; and the process to settle group composition, by identification of apical ancestors. 13 The Boundary Identification Negotiation and Mediation or 'BINM' process, and the group composition process, for these determinations is described in the individual determinations made for each of these groups. 14 The Kowanyama People authorisation meeting was conducted on 27 February 2024. The Kunjen Olkol authorisation meeting was conducted on 28 February 2024. The Olkola authorisation meeting was conducted on 29 February 2024. At those meetings, the groups considered the terms of the Kowanyama People, Kunjen Olkol and Olkola jointly held area s 87A agreement, and directed 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 15 The applicant's authority to enter into the Kowanyama People, Kunjen Olkol and Olkola jointly held area 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. 16 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. 17 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. 18 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.
THE CONNECTION OF THE KOWANYAMA PEOPLE, KUNJEN OLKOL AND OLKOLA NATIVE TITLE GROUP TO THE DETERMINATION AREA 19 In the individual determinations for these groups, I described the connection material put forward by the applicant and accepted by the State as providing a credible basis for the recognition of native title of the Olkola, Kowanyama People and Kunjen Olkol native title groups. Those findings are applicable to the jointly held area determinations, and I adopt those findings for this determination.
THE APPLICABLE REQUIREMENTS OF SECTION 87A 20 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. 21 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. 22 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 23 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 24 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 25 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. 26 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 27 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. 28 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 People, Kunjen Olkol and Olkola jointly held area 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. For shared country, this process has been especially important, and I am satisfied it has been available to group members. 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. 29 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.
NOMINATION OF A PRESCRIBED BODY CORPORATE 30 A PBC has been nominated under s 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. 31 The native title being recognised in this determination is to be held by the Kowanyama People, Kunjen Olkol and Olkola Aboriginal Corporation (ICN 10247) as the PBC for the purpose of s 57(2) of the Native Title Act. This is the same PBC nominated for the other jointly held area determinations.
THE STATE OF QUEENSLAND AS A RESPONDENT 32 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 33 Although this determination is made on the papers, together with the other determinations made in this round, it represents an important milestone for the Kowanyama People, Kunjen Olkol and Olkola native title groups. Agreement making between groups over shared country can be a challenging process. The Court congratulates the parties, their legal representatives and all those who contributed to the conclusion of this s 87A agreement, including experts, employees of the Cape York Land Council and officers in various departments of the State of Queensland. 34 The pace and complexity of consent determinations in the Cape York United #1 claim is a credit, in particular, to the Cape York United #1 applicant, the Cape York Land Council and the State of Queensland. 35 The Court also commends the work of Judicial Registrar Simon Grant in the processes that have led to the Court's orders 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. This work is just as vital to the outcome today as any of the more visible work a Judge might do. I certify that the preceding thirty-five (35) 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