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

Federal Court of Australia|2024-07-12|Before: Mortimer CJ

INTRODUCTION 1 This determination recognises the native title of the Southern Kaantju people in relation to an area known as the 'Cape York Biosecurity Centre ILUA parcel' that was excluded from their existing determination made in this proceeding in July 2022, Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771. This Southern Kaantju #2 determination, as the parties refer to it, 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. 2 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', or simply the 'Corrigan Report Area'. This determination was eventually aligned with the Corrigan Report Area timetable after it was excluded from the original Southern Kaantju determination, in order for the applicant and the State to negotiate an Indigenous Land Use Agreement (ILUA) for the parcel. 3 The majority of the Southern Kaantju People's country was the subject of the 2022 Southern Kaantju determination. This determination relates to a parcel that is entirely within the external boundaries of that earlier determination which has subsequently become subject to the Southern Kaantju Biosecurity ILUA (QI2023/005). 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.

PROCEDURAL HISTORY 9 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. 10 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 Southern Kaantju #2 section 87A agreement 11 Like the previous and completed s 87A processes in this proceeding, there were two decision-making processes for Southern Kaantju country which needed to involve landholding groups: the process to settle boundaries between the Southern Kaantju People and their neighbours; and the process to settle group composition, by identification of apical ancestors. 12 The Boundary Identification Negotiation and Mediation or 'BINM' process is described in the Southern Kaantju determination at [15]-[21]. The group composition process was not relevant to this parcel. 13 Ms Malyon deposes in her 2024 affidavit that Ms Michelle Cioffi of the CYLC undertook pre-engagement in April 2022 with members of the Southern Kaantju native title group regarding the excising of the Cape York Biosecurity ILUA parcel from the (then proposed) Southern Kaantju determination of July 2022. Pre-engagement continued through to September 2022. A pre-authorisation meeting was held on 19 October 2022 in relation to the proposed determination over the Cape York Biosecurity Centre ILUA parcel, the proposed ILUA, and the Cape York United #1 claim. 14 The Southern Kaantju #2 authorisation meeting was conducted on 24 January 2023. At that meeting, the group considered the terms of the Southern Kaantju #2 s 87A agreement, and directed the applicant to enter into that agreement. The group also voted in favour of the ILUA, which was executed by the parties with an execution date of 14 August 2023. The Southern Kaantju People Biosecurity Centre ILUA was registered on the Register of Indigenous Land Use Agreements on 9 February 2024. 15 The direction to the applicant to enter into the s 87A agreement brings me to the question of the authorisation of the applicant to enter into separate s 87A agreements for various parts of country covered by the Cape York United #1 claim.

The authorisation of the Cape York United #1 applicant 16 Like its authority to enter into the Southern Kaantju s 87A agreement, the applicant's authority to enter into the Southern Kaantju #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]. See also the Southern Kaantju determination at [23]-[26]. 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. 17 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. 18 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. 19 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 SOUTHERN KAANTJU NATIVE TITLE GROUP TO THE DETERMINATION AREA 20 In her 2017 report, Dr Kwok describes Southern Kaantju country as in the central ranges region of Cape York, south from the Archer River to approximately around Coen. At [710] of her 2017 report, Dr Kwok states: The Kaanju people have been repeatedly recorded as occupying a central position in the range country of Cape York Peninsula, with interests extending from the headwaters of the Pascoe in the north to the upper reaches of the Archer River system in the vicinity of Coen. The Northern Kaanju [Koko I'o] and Southern Kaanju divide, reflecting differences in perspective on the part of their neighbours and minor dialectal distinctions, have been flagged since at least the late 1920s. The broad extent with which the name is associated and the fact that Thomson recorded the name's meaning as spear thrower handle, leads me to suspect that the name Kaanju may have had a relatively general application to upland peoples in the region, although it also functions as a language name. 21 In the Southern Kaantju determination at [27] to [39], 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 Southern Kaantju People. The Court accepted that material was sufficient for the determination sought. These findings are applicable to the Cape York Biosecurity Centre ILUA parcel. The material supporting the group description for the Southern Kaantju #2 determination can be accepted on the same basis: see my reasons in the Southern Kaantju determination at [32].

THE APPLICABLE REQUIREMENTS OF SECTION 87A 22 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. 23 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. 24 Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application. 25 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 26 As the applicant sets out at [37]-[42] 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 27 For the reasons set out at [43]-[48] of the applicant's submissions, with which the State agrees, I am satisfied the orders sought are within the power of the Court. 28 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 29 In the Southern Kaantju determination at [47] to [49], I set out my approach to the question of appropriateness. In concluding the orders sought over the Cape York Biosecurity Centre ILUA parcel are appropriate, I adopt and apply that reasoning here, including the reasoning about the position adopted by the State of Queensland.

NOMINATION OF A PRESCRIBED BODY CORPORATE 30 A separate PBC has been nominated under s 56 or s 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 to hold the native title for this determination is the Southern Kaantju Aboriginal Corporation RNTBC (ICN: 9755).

THE STATE OF QUEENSLAND AS A RESPONDENT 31 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 32 Although this determination is made on the papers, the conclusion of an ILUA over this country represents an important milestone for the Southern Kaantju people. 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. 33 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-three (33) 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

Fire and Emergency Services Act 1990(Qld)

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

THE COURT NOTES THAT: A. The Applicant agrees that the areas listed in Schedule 4 are areas where native title has been wholly extinguished. B. The Southern Kaantju People were determined to hold native title in the areas surrounding this Determination Area on 5 July 2022 in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771 (the Southern Kaantju #1 Determination). C. The area formerly described as Lot 12 on SP171860 was excluded from the Southern Kaantju #1 Determination to allow the State and the Applicant further time to negotiate an indigenous land use agreement to resolve a tenure issue. D. The Southern Kaantju People Biosecurity Centre Indigenous Land Use Agreement (QI2023/005) (the ILUA) was registered on the Register of Indigenous Land Use Agreements on 9 February 2024. E. As part of the ILUA, it was agreed that former Lot 12 on SP171860 would be re-surveyed. The area formerly described as Lot 12 on SP171860 now forms part of a larger area described as Lot 1 on SP337297, which also includes the adjacent area formerly described as Lot 11 on SP171860 and an additional area of closed road. As part of that re-survey process, SP337297 creates a new area of road (which previously formed part of Lot 12 on SP171860). F. The parties now seek a determination of native title over the area formerly described Lot 12 on SP171860 that was excluded from the Southern Kaantju #1 determination. That excluded area is now described as: a. that part of Lot 1 on SP337297 described as former Lot 12 on SP171860 excluding an area of closed road delineated by stations 52-53-54-55-52 on SP337297; and b. an area of road identified as road sections delineated by stations 50-51-52-50 on SP337297 which previously formed part of Lot 12 on SP171860.

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