Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) [2021] FCA 1465

Eastern Cape York, Lockhart River Coastal Region

The determination area comprises an area of approximately 98,324 hectares. Specifically, the determination area, excluding those parts where native title has been extinguished as described in Schedule 5, includes parts of Lots 16 and 17 on SP104551, and the Lockhart River and Eden Creek. For a detailed written description of the area, see Schedule 4; for a map, see Schedule 6, attached below under documents.

The area falls within the jurisdictions of the Lockhart River Aboriginal Shire and Cook Shire Councils. 

Registered on the National Native Title Register.

Between: Michael Ross, Silva Blanco, James Creek, Jonathan Korkaktain, Reginald Williams, Wayne Butcher, Clarry Flinders, Philip Port, HS (deceased) on behalf of the Cape York United #1 Claim Group (Applicant) and The State of Queensland, The Commonwealth of Australia, Cook Shire Council and Telstra Corporation Limited (Respondents)

Judge: Mortimer J

Determination

The Federal Court of Australia made this native title determination by consent of the parties under s87A of the Native Title Act 1993 (Cth) (the NTA).

Native title exists in the entire determination area.

It consists of exclusive and non-exclusive native title rights and interests.

These rights and interests are exercisable in accordance with the traditional laws and customs of the native title holders and are subject to the laws of the State and Commonwealth.

Native title holders

Native title is held by the Uutaalnganu (Night Island) People.

Exclusive native title exists over the entire determination area.

Other than in relation to water, the Uutaalnganu People have exclusive native title over the parts of Lots 16 and 17 on SP104551 that fall within the determination area (see Part 1 of Schedule 4). This area is shown in dark blue in the maps in Schedule 6.

In relation to water, the Uutaalnganu People have the non-exclusive right to take the water of the area for personal, domestic, and non-commercial communal purposes.

Exclusive native title is the right to possess, occupy, use, and enjoy the area, to the exclusion of all others.

Non-exclusive native title exists over the entire determination area. 

These native title rights and interests exist over all the rivers, creeks, streams, and lakes within the determination area, apart from those waters that are part of a lot on a plan, as described in Part 2 of Schedule 4. These rights include the right to:

• access, be present on, move about on, and travel over the area;
• live and camp in the determination area;
• hunt, fish, and gather on the land and waters of the area;
• take Natural Resources from the land and waters of the area;
• take the water of the area for personal, domestic and non-commercial communal purposes;
• be buried and to bury Native Title Holders in the area;
• maintain places of importance and areas of significance under traditional laws and customs, and protect those places from harm;
• teach on the area the physical and spiritual attributes of the area; and
• hold meetings and conduct ceremonies in the area; and
• light fires on the area for cultural, spiritual or domestic purposes, but not for the purpose of hunting or clearing vegetation.

The non-exclusive native title area is described in Part 2 of Schedule 4 and shown in light blue in the maps in Schedule 6.

Other (non-native title) rights and interests in the determination area include those of:

• Telstra Corporation Limited as the owner and proprietor of telecommunications facilities in the determination area, and accompanying rights to access, install, maintain and remove telecommunication facilities in the vicinity;
• Cook Shire Council as the local government jurisdiction for the part of the determination area within the Local Government Area. Cook Shire Council also has rights and interests as a lessor and as owner and operator of infrastructure and facilities within the determination area, and has the right to enter the determination area for that purpose;
• Lockhart River Aboriginal Shire Council, Cook Shire Council, and the State of Queensland have rights and interests to use, maintain and control roads within the determination area;
• the State of Queensland in Reserves, and the rights and interests of persons entitled to access and use those Reserves;
• any other rights and interests held by the State of Queensland or the Commonwealth of Australia or existing under the law of the State of Queensland or the Commonwealth; and
• any other rights and interests held by the public under the common law. 

See Schedule 2 for further information about the non-native title rights and interests.

In the case of conflict, the exercise of the non-native title rights and interests will prevail over the native title rights and interests.

Prescribed body corporate

The Uutaalnganu Aboriginal Corporation performs the functions required under the NTA on behalf of the Uutaalnganu (Night Island) People.

The native title is held in trust.

Full text of the determination is available via the URL link above.

Background

The Cape York United #1 Claim Group initially filed a native title claim in December 2014 with the objective of resolving all outstanding native title claims in Cape York. The claim area is the largest that lies wholly within Queensland [4].

From its early days, due to its size and complexity, the claim area was divided into nine report areas for the purpose of connection assessment to be undertaken by a number of anthropologists [14]. Given the parties' acknowledgment that there were different groups holding different native titles across the claim area, it was decided to progress separate native title claims over the nine report areas [17].

The Uutaalnganu (Night Island) Determination was made by the Federal Court on 25 November 2021, the same day as the Kuuku Ya'u Determination [1]. These determinations were the first of the nine determinations over Cape York, brought by the Cape York United #1 Claim Group. The nine determinations together comprise one of the largest land claims in Australia's history (Jenkins). 

This determination was celebrated by the Uutaalnganu People, with traditional owners dancing outside the Cairns Supreme Court when the determination was handed down. Eighty-year-old Uutaalnganu elder, Beatrice Hobson, participated in the dancing and said 'My people [were] worrying for a long time to get their land back ... We want to keep our land safe' (Jenkins). Richie Ah Mat, Cape York Land Council chair, described it as a proud day, saying he was awed by the resilience of the Traditional Owners, whose battle had begun in 1997 and 1998 when the Kuuku Ya'u and Uutaalanganu fought for recognition in earlier native title and land claims' (Jenkins). 

Details of Judgment

This and the Kuuku Ya'u determination, are the first successful outcomes of the Cape York United #1 Claim process. Having taken seven years to get this far, Mortimer J described the making of these two determinations as a "landmark" event [4].

Much of the Kuuku Ya'u and Uutaalnganu determination areas is freehold Aboriginal land held by land trusts under the Aboriginal Land Act 1991 (Qld). Most of the rest is held on trust by the Lockhart River Aboriginal Shire Council for the benefit of Aboriginal people under the now repealed Land Act 1962 (Qld) [3]. It is because the land is held on trust expressly for the benefit of Aboriginal peoples that the Court disregards the previous extinguishment of native title, under s 47A of the NTA, over a large proportion of the determination areas [3].

Mortimer J of the Federal Court was satisfied that the Court had the power to make the determination under s 87A of the NTA [78]-[86]. Her Honour considered there to be considerable evidence to demonstrate that the determination met the requirements of s 225 of the NTA [84].

Mortimer J acknowledged that despite the factual and legal challenges which had arisen in the Cape York United #1 proceedings, including a possible defect in the authorisation of the application relating to the description of the native title claimant group, the key parties had navigated a path to consensual recognition in this case [46]-[48]. Mortimer J further stated 'if ever there was a situation...where a favourable exercise of discretion by the Court is appropriate to ensure resolution of a claim to which the parties agree, this is that situation' [48].

Native title exists in the entire determination area.

Related Entries

References

Documents

Glossary