GREENWOOD J:
1 In 2014, the Court made orders determining the traditional rights and interests of the Northern Cape York #1 native title holding group constituted by the Angkamuthi Seven Rivers, the McDonnell Atampaya and the Gudang/Yadhaigana people: Woosup on behalf of the Northern Cape York #1 Native Title Claim Group v State of Queensland [2014] FCA 1148 (NCY #1).
2 The Ankamuthi People are today asking the Court to make orders under s 87 of the Native Title Act 1993 (Cth) ("the Act") that will determine their native title rights and interests in their country in the northern part of Cape York Peninsula.
3 Almost 20 years ago, on 29 October 1997, the Ankamuthi People lodged three separate applications with the National Native Title Tribunal. By order of the Court on 21 July 1999, the three applications were combined to become application QUD 6158 of 1998 on behalf of the Ankamuthi People #1. The combined application has been amended on three occasions and the current application is brought, on behalf of the native title claim group, by Charles Woosup, George Mamoose, Michael Toby, Asai Pablo, Tracey Ludwick, Ella Hart (Deemal), Nelson Stephen, Ben Tamwoy, Catherine Salee and Mark Gebadi.
4 The original claim area included land within the Mapoon Deed of Grant in Trust which has been subdivided and transferred to the Old Mapoon Aboriginal Corporation under the Aboriginal Land Act 1991 (Qld) as Aboriginal Freehold land. Additional lots were removed from the original claim area and those lots have become the subject of the application for recognition of native title rights and interests brought by the four applicants on behalf of the Northern Cape York Group #3 claim group which is to be determined contemporaneously with this application.
5 The parties to application QUD 6158 of 1998 have agreed that Lots 6 to 13 (inclusive) on SP 204113 and part of Lot 8 on SP 252492 (being the part north of the Ducie River) comprise DOGIT land held by the Old Mapoon Aboriginal Corporation. These lots are listed in Part 1 of Schedule 1 of the proposed orders. The Determination Area is properly described in Schedule 1 to each of the orders.
6 The Ankamuthi People #2 application (QUD 392 of 2014) filed on 29 July 2014 is brought by Larry Woosup, Beverley Mamoose (formerly known as Beverley Tamwoy), Richard Woosup, Charles Woosup, George Mamoose, Michael Toby, Asai Pablo, Tracey Ludwick, Ella Hart (Deemal), Nelson Stephen, Ben Tamwoy, Catherine Salee and Mark Gebadi on behalf of the Ankamuthi People #2 over land and waters described in Schedule B of the amended application (Form 1, native title determination application filed on 11 December 2014).
7 The native title claim group the subject of application QUD 6158 of 1998 and QUD 392 of 2014 is comprised of all persons descended by birth or adoption from the identified apical ancestors whose names are set out in Schedule 3 to the orders made today in each application.
8 The Cape York Land Council Aboriginal Corporation is the native title representative body for the region and is the legal representative for the claim group in relation to this application.
9 Both applications remain on the Register of Native Title Claims. They have been notified in accordance with s 66 of the Act.
10 The parties who remain respondents to the Ankamuthi People #1 application (QUD 6158 of 1998) are the State of Queensland, Cook Shire Council, Old Mapoon Aboriginal Corporation, Ergon Energy Corporation Limited, Alcan South Pacific Pty Ltd, RTA Weipa Pty Ltd, Rio Tinto Aluminium Limited (formerly known as Comalco Aluminium Limited), and the Queensland Seafood Industry Association.
11 The respondents to the Ankamuthi People #2 application (QUD 392 of 2014) are the State of Queensland, Alcan South Pacific Pty Ltd and RTA Weipa Pty Ltd.
12 The original Ankamuthi application has been on foot since 1997.
13 However, since the filing of the Ankamuthi People #2 application in July 2014, the parties have made substantial progress in resolving the many difficult intra-indigenous issues that have arisen over time, and which, unfortunately, have proved difficult to resolve. I want to recognise the tireless efforts of the solicitor for the applicant, Mr John Reeve, whose efforts have been largely responsible for bringing about this result. I also acknowledge the conscientious and co-operative approach taken by the parties in the course of intensive case management processes since 2015 to resolve the outstanding issues. It is unfortunate that earlier delays, caused primarily by intra-mural conflicts, have prevented the earlier recognition of the claimants' native title rights and interests. Many important elders are not now with us to see the determination of the native title rights and interests of the people, today.
14 On 22 June 2017, the parties filed an agreement in each application (that is in each of QUD 6158 of 1998 and QUD 392 of 2014) under s 87 of the Act seeking the orders to be made today.
15 I am satisfied that the proposed orders, consistent with the terms of the s 87 Agreement in each application, are within power and that it is appropriate to make orders in and consistent with those terms without holding a hearing: see s 87(1)(a), (b) and (c); s 87(1A) and s 87(2).
16 Although, in my view, it is not necessary for the claimant group to file a substantial body of evidence of the kind that would otherwise be required in the determination of the merits of a claim at trial, it is, in my view, necessary for the Court to be satisfied that the terms of the s 87 Agreement are, as former Chief Justice French has observed, "rooted to reality": Native Title - A Constitutional Shift?, University of Melbourne Law School, JD Lecture Series, French CJ, 24 March 2009; Kerindun v Queensland (2009) 258 ALR 306 at [16]; Kuuku Ya'u People v State of Queensland [2009] FCA 679 at [12]-[15].
17 The question of whether the terms of the agreement are rooted in reality simply requires some material to be before the Court upon which it can act in reaching the statutory state of satisfaction as to the appropriateness of the making of the orders. Of course, a substantial body of anthropological evidence is before the Court.
18 The Court is also satisfied for the purposes of ss 13(1) and 61(1) of the Act that there is no approved determination of native title in relation to the land and waters the subject of these proceedings.
19 A determination of native title expresses the recognition and protection of those rights and interests in relation to land and waters defined and described in s 223 of the Act which find their origin in traditional laws and customs acknowledged and observed by Aboriginal peoples: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [75] and [76], Gleeson CJ, Gummow and Hayne JJ.
20 A determination of native title requires the Court to determine who are the persons or group of persons who hold the common or group rights comprising the native title; the nature and extent of those rights and interests in the Determination Area; the nature and extent of any other interests; and the relationship between the native title rights and interests and those other interests, in the Determination Area (s 225 of the Act).
21 As noted in the first paragraph of the reasons today, the two applications by the Ankamuthi People closely inter-relate with an earlier determination of native title made by the Court in 2014. In determining that matter and the two applications before the Court today, I have had close regard to the following reports exhibited to the affidavits of Dr Anthony Redmond filed in the NCY #1 proceeding on 1 September 2014:
• A Northern Cape York Peninsula Regional Society: Identifying the regionally shared level of society for the NCY#1, NCY#2 and proposed NCY#3 Native Title Claimant Groups, being Exhibit "AJR10" to the Redmond affidavit #2 - Dr Anthony Redmond, June 2012 (the "Society Report");
• Northern Cape York #1 QUD157/11 Native Title Connection Report dated August 2012, being Exhibit "AJR11" to the Redmond affidavit (the Connection Report) - Dr Anthony Redmond;
• NCY #1 and #2 Claims: Supplementary Report - Anthropologist's response to the State of Queensland's assessment and request for further information in regard to the connection materials, being Exhibit AJR12 to the Redmond affidavit #2 (the "Supplementary Report") - Dr Anthony Redmond, 26 June 2013.
• Updated genealogical charts being Exhibit "AJR13" to the Redmond affidavit.
22 Dr Redmond, in an affidavit filed in the Ankamuthi People #1 proceeding on 14 March 2017, has deposed to a meeting of the claim group which he attended at Injinoo on 15 May 2015 at which authorisation was given by the claim group to alter both the composition of the applicant and the claim group. Persons identifying as Ankamuthi People had earlier contested the entitlement of the indigenous respondents to the application to participate, and the changes have resolved that dispute within the broader community.
23 In Ankamuthi People #2 (QUD 392 of 2014), a similar affidavit was filed on 14 March 2017 in which Dr Redmond deposed to an authorisation meeting of the claim group which he attended at Injinoo on 19 March 2014 where amendments to the application were authorised so as to reduce the claim area and authorisation was given to the filing of an amended application.
24 I have had the benefit of reading the applicant's submissions in support of each application filed on 28 June 2017 which attach, as a Schedule, the comprehensive submissions filed in the two earlier determinations.
25 In the material I previously considered in relation to the orders made in the determination, Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 ("NCY #2"), I made the following observations on the evidence presented to the Court in the context of that matter:
[24] Dr Redmond is a Visiting Research Fellow at the Centre for Aboriginal Economic Policy Research at the Australian National University. He is an Australian Research Council Fellow who undertook a joint project entitled "Aboriginal Involvement in the inter-cultural frontier Economy". Dr Redmond has conducted a wide-range of research activities in the discipline of anthropology with particular emphasis upon the foundation for communal, group or individual cultural rights, practises and interests of Aboriginal people. Dr Redmond has undertaken extensive research on this topic in Northern Cape York. Dr Redmond has conducted research in relation to native title claims on behalf of the Northern Cape York Group #2 ("NCY #2") and also in relation to the claim made by the Northern Cape York Group #1 ("NCY #1") claimants.
[25] Having regard to that research, Dr Redmond says this:
I came to the professional opinion that the set of regionally shared socio-cultural features and regular interactive patterns characteristic of the groups traditionally associated with the NCY #1 and #2 claim areas indicated that the claimants' predecessors shared membership of a single society constituted through a body of shared traditional laws and customs, all of which had degrees of bearing upon the allocation of landed rights and interests. …
[emphasis added]
[26] Dr Redmond sets out extensive analysis which represents the foundation for that view. It is not necessary to repeat in these reasons the content of that analysis. Dr Redmond, in forming his professional opinion, also had regard to a wide body of anthropological research work concerning the peoples of Northern Cape York. That body of anthropological research work includes the work of Lauriston Sharp in 1933, 1934 and 1935. It includes the results of field research expeditions to Cape York in 1928 and in 1932/1933 by Donald Thomson including fieldwork in Weipa and Mapoon, with particular reference to Thomson's papers in 1934, 1939 and 1972. It includes reference to the work of Ursula McConnel who travelled extensively throughout Cape York between 1927 and 1934 and conducted fieldwork to produce a series of reference papers in 1936, 1939 and 1950. It also includes reference to the work of Terrence Crowley, a linguist who undertook field work in Cape York in the 1970s and who produced two publications in 1981 and 1983 of relevance to regionally shared socio-cultural features and patterns of interaction of Aboriginal peoples within the Determination Area the subject of the present claim.
[27] More contemporary work has also been reviewed by Dr Redmond and that work includes the work of Thompson and Chase of 2006 and 2009; the work of Chase, Smith and Thompson of 2005 and the work of Rigsby in 1995 and 1999.
[28] As a result of an analysis of all of this work and Dr Redmond's own work, he has prepared a map which demonstrates an "overlay" of anthropological data demonstrating considerable overlap of Northern Cape York Peninsula "socio-cultural-linguistic features" and, from the research and data, Dr Redmond identifies an area in which the indigenous people of Northern Cape York shared "an overwhelming preponderance of shared laws and customs in regard to local and social organisation, language affinities, kinship and marriage customs, ceremonial and cosmological beliefs, ritual prohibitions on eating of totemic species, emic perspectives on their relative sameness and difference with their neighbours [perspectives on the language and culture of the peoples in terms of their internal functioning within the group] and regional dispute resolution practices".
26 In NCY #1, I observed that it is important to note Dr Redmond's research in relation to the identification of the members of the claim group through extensive genealogical research by many prominent anthropologists working in Northern Cape York. At [36] of the Connection Report, Dr Redmond concludes that:
The forty-eight sources listed in the genealogical database incorporate my own field research as well as drawing upon a wide range of secondary sources including the field-notes of Sharp (1933-4) and Hinton (1963), as well as the more recent reports of Fuary and Greer (1993), Kwok (1998), Elias (1998), McKeown (1996), Taylor and Powell (2008), Powell (2004; 2010), Thompson (2009). The genealogies also incorporate parts of the database compiled by Peter Blackwood and his associates which mostly pertains to the people of the NCY#2 claim area but also contains various relevant information for the current NCY#1 claimant group. The sources cited in the genealogies also include extracts from the Register of Births, Deaths and Marriages, and those drawn from the records of the Presbyterian Church at Mapoon, as well as extracts from information provided by the Community Personal Histories (CPH) section of the Queensland Government.
27 I again refer to [39] in the Connection Report where Dr Redmond identifies the Angkamuthi Seven Rivers group as the descendants of people whose traditional homelands include places located in the lower catchments of the western coastal rivers of Northern Cape York which is collectively known as the Seven Rivers, an area which includes parts of the catchments of the Jardine River, Crystal Creek, Doughboy River, McDonald River, Jackson River, Skardon River and Ducie/Dulhunty River).
28 At [41]-[42] of the Connection Report, Dr Redmond refers to research undertaken by Dr Natalie Kwok and Derek Elias in relation to the kin relationships in the Northern Cape York communities. Mr Elias listed the following families as having a well-accepted association with Ankamuthi country:
Woosup (and by extension some members bearing the following surnames: Billy, Solomon, Stephen, McDonnell, Tamwoy). Their apical ancestors are said to have been Woobumu and Inmare.
The Toby and Mamoose family (and by extension some members bearing the following surnames Tamwoy, Stephen). Their apical ancestors are said to have been Jack Toby and Charlie Mamoose.
The Ropeyarn family (by extension some members bearing the following surnames: Sallee, Hobson, Bowie). The apical ancestors for this group are James Ropeyarn whose mother was either Lily Woosup who bore him out of wedlock, or a sister or cousin to Lily who adopted him, and an Angkamuthi woman who passed away which resulted in Ropeyarn's adoption by Lily.
The Sagiba and Deemal families. The apical ancestor is said to have been a man named Charlie and his two wives, Lily and Lizzie.
Asai and Gibson (and by extension some members bearing the following surnames: Pablo, Mooka and Pascoe). The apical ancestor is Charlie Asai.
29 In NCY #2, I noted Dr Redmond's conclusion that, in his opinion, the data "all point towards the existence of a single regional society uniting the NCY #1 and #2 claimant groups under a shared body of laws and customs" [emphasis added], in respect of which he wrote:
My field research with contemporary claimants in the NCY #1 claim, in conjunction with my study of the research materials pertaining to the NCY #2 claim, strongly indicate that a continuing observance and acknowledgement of the traditional laws and customs of the region continues to unite the peoples of both the NCY #1 and #2 claim areas within a single society. This contemporary social unity is entirely congruent with my findings regarding the [Northern Cape York Peninsula] regional society at the time of sovereignty.
30 In Dr Redmond's view, effective sovereignty coincided with the establishment of the first permanent European presence with the arrival of the Jardines at Somerset in 1864 and he says that the degree of disruption in the more southern reaches of the claim area appears to have been somewhat less intense than in the northern tip.
31 Dr Redmond concludes that the relationship between the Aboriginal people and the new settlers was deeply ambivalent and often violent. Sheep and cattle stations were established from the mid-1860's and the overland telegraph line was constructed in the 1880's. The McDonnell telegraph station was opened in 1887. Dr Redmond refers in the Connection Report at para 7 to a report from Archibald Meston (later the Protector of Aboriginals), who in 1896 wrote about the inhabitants of the claim area:
From Newcastle Bay south to Princess Charlotte Bay … are still in their original condition … There is no settlement whatever, nor is there a single white man resident over the whole of that extensive territory, except for a few miners on one locality … the tribes to the westward [of the east coast], between the coast and the telegraph line, are still absolutely wild, and … free from any intercourse or contamination by white men … the whole western coast north from the Mitchell to the Jardine River [is] in absolute possession of the wild tribes.
32 In the reasons in NCY #2 referred to above, reference was made to engagement with early explorers by the ancestors of the claim group:
In 1606 the Dutch vessel Duyfken sailed down the west coast of Cape York Peninsula and sighted land at the Pennefather River in the Determination Area and entered Port Musgrave and the Wenlock River where particular interactions occurred with Aboriginal peoples. In April and May 1623, Jan Carstenzoon led the Dutch vessels Pera and Arnehem on an exploratory mission from Torres Strait down the west coast of Cape York Peninsula to about the Staaten River in the south. Carstenzoon named the river now known as the Wenlock River as the Carpentier River. Carstenzoon's diaries provide some detail of huts and weaponry and native dwellings seen at the Skardon River. In 1802, Matthew Flinders in the Investigator sailed down the western side of Cape York Peninsula passing Port Musgrave and making particular observations.
33 The rights and interests that are recognised in the orders I make today are derived from the traditional laws and customs and their adaptation since sovereignty. Dr Redmond's Society Report examines the available evidence in relation to the cosmology, the role of regional elders, the linking of language, shared responsibilities for ceremony, trade and exchange, spiritual beliefs, laws and customs governing regional dispute resolution processes, and a regionally shared mode of aggregating local descent groupings under toponymic labels.
34 Dr Redmond has included various maps in the Society Report that demonstrate pictorially the areas associated with particular laws and customs, as found by Sharp, Thomson, McConnel, Crowley, Alpher and Hale. One of the maps included is an aggregate of the earlier maps and is striking because of the broad commonality of areas associated with those laws and customs.
35 Dr Redmond comments on this particular map at para 192(n) of the Society Report:
It will be observed from this map that it is possible to delineate an area in which the Indigenous people of Northern Cape York Peninsula clearly shared an overwhelming preponderance of shared laws and customs in regard to local and social organisation, language affinities, kinship and marriage customs, ceremonial and cosmological beliefs, ritual prohibitions on eating of totemic species, emic perspectives on their relative sameness and difference with their neighbours and regional dispute resolution practices. In my opinion, these data all point towards the existence of a single regional society uniting the NCY #1, [NCY] #2 and proposed NCY #3 claimant groups under a shared body of laws and customs.
36 In terms of the contemporary situation, the Ankamuthi native title claim group, who are also members of the NCY #1 native title holding group, continue to be part of that wider regional society.
37 As Dr Redmond notes in the NCY #1 Connection Report:
The wider Aboriginal jural public of Northern Cape York Peninsula … which upholds the laws and customs in the claim region is more extensive than any single language group and lower-level divisions (including the patriclans recorded at the threshold of colonisation and their present incarnation in contemporary kin-based groupings). For this reason the claimant group can be distinguished from the wider regional society within which it is embedded.
38 Dr Redmond concludes that, at all relevant times, a normative system of traditional law and custom has governed the lives of the claimants and their ancestors:
The predecessors of the NCY #1 claimant group used, occupied and enjoyed a lawful and regulated jurisdiction over the NCY #1 Claim Area … prior to the assumption of effective sovereignty which coincides with the establishment of the first permanent European presence at Somerset in about 1860. That lawful use and occupation has been perpetuated across succeeding generations to the present day under a body of shared traditional laws and customs.
39 The Ankamuthi claim group, as part of the broad Northern Cape York society, have provided extensive evidence of their continuing connection to the claim area. Members of the claim group live in the five communities within the external boundary of the determination area, Injinoo, Seisia, Bamaga, Umagico and New Mapoon and in semi-permanent camps and outstations. Dr Redmond refers to numerous statements from members of the claim group he has obtained attesting to various activities on country such as hunting, gathering, fishing, camping, manufacturing implements for hunting and fishing, burning country and protecting places. Continuity is expressed in terms of adherence to particular laws, customs, practices and beliefs.
40 I am satisfied having regard to the anthropological reports in evidence that the nature and extent of the native title rights and interests in relation to the land and waters of the Determination Area are as follows.
41 As to the land and waters of the Ankamuthi People #1 application (QUD 6158 of 1998), Part 1 of Schedule 1 describes areas of land and waters otherwise known as the "Exclusive Areas" of exercise of the native title rights and interests by reference to Lots on particular Plans and Map Sheet Numbers. Those rights and interests are, other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others. In relation to Water, the rights and interests are, the non-exclusive rights to hunt, fish and gather from the Water of the area; take and use the Natural Resources of the Water in the area; and take and use the Water of the area, all for cultural, personal, domestic and communal purposes. "Water" has the definition attributed to it as set out in Order 17 of the orders published today in application QUD 6158 of 1998.
42 As to the land and waters in Part 2 of Schedule 1 in the Ankamuthi People #1 application, otherwise known as the "Non-Exclusive Areas" of exercise of the native title rights and interests, those rights and interests are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) hunt and fish in or on, and gather from, the area;
(c) take, use, share and exchange Natural Resources on the area;
(d) take and use Water from the area for cultural, personal, domestic and communal purposes;
(e) live and camp on the area and for those purposes to erect shelters and other structures thereon;
(f) conduct ceremonies on the area;
(g) be buried and to bury native title holders within the area;
(h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs on the area and to protect those places and areas from harm;
(i) teach on the area the physical and spiritual attributes of the area;
(j) hold meetings on the area;
(k) light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation;
(l) be accompanied on to the area by those persons who, though not native title holders, are:
(i) spouses or partners of native title holders;
(ii) people who are members of the immediate family of a spouse or partner of a native title holder; or
(iii) people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.
43 As to the land and waters described in Part 1 of Schedule 1 in the Ankamuthi People #2 application (QUD 392 of 2014), the native title rights and interests are those rights and interests that relate to Water. They are the non-exclusive rights to hunt, fish and gather from the Water of the area; take and use the Natural Resources of the Water in the area; and take and use the Water of the area, all for cultural, personal, domestic and communal purposes. As to the definition of "Water" see Order 15 of the orders made in application QUD 392 of 2014.
44 The native title rights and interests so described, for the purposes of each application made by the Ankamuthi People, are subject to and exercisable in accordance with the laws of the State of Queensland and the Commonwealth, the traditional laws acknowledged and traditional customs observed by the native title holders, and the other interests in the Determination Area referred to in Schedule 4 to each of the Orders made today.
45 The applicant has resolved that the native title rights and interests are to be held in trust by the Seven Rivers Aboriginal Corporation (ICN 8522) as prescribed body corporate. The written nominations and written consents required by s 56(2)(a) of the Act were filed with the Federal Court. The orders provide that, upon the determination taking effect, the native title is to be held in trust for the common law holders and Seven Rivers Aboriginal Corporation is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the Act and is to perform the functions mentioned in s 57(1) of the Act after becoming a registered native title body corporate. The common law native title holders have notified the Court, by an affidavit of Charles Thomas Woosup filed 16 May 2017, that the Seven Rivers Aboriginal Corporation is nominated as the prescribed body corporate to be the trustee of the native title determined in these proceeding. The determinations will take effect according to the terms of Order 2 of the orders. No determination under s 57 of the Act is required having regard to the operation of s 56 of the Act.
46 On the basis of all of the matters described in these reasons, I am satisfied that the Court has power to make the determinations in the terms proposed and that it will be appropriate to do so in all the circumstances.
47 The orders made today in each application made by the Ankamuthi People, give recognition within the Australian legal system to the native title rights and interests of the claim group described as the Ankamuthi People in relation to the Determination Areas, borne out of traditions honoured and customs practiced by the ancestors of the claimants and observed and practiced by their descendants continuously over time as described in the report of Dr Redmond having regard to the detailed anthropological record of Aboriginal peoples and their engagement with the land and waters of the Determination Areas.
48 The Court now publishes the orders comprising the determination.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.