Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) [2021] FCA 1464

Cape York

The determination area is 120,268 hectares on the east coast of Cape York, and  covers the Kutini-Payamu (Iron Range) National Park. It does not include Portland Road, which runs east-west through the determination area. Schedules 4 and 6, attached, provide a written and visual description and map of the area covered.

The area is within the jurisdiction 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, Ergon Energy Corporation Limited, Far North Queensland Ports Corporation Limited 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 s 87A 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 Kuuku Ya'u People. 

For a detailed description of the group see Schedule 1 of the court determination. 

Exclusive native title exists over part of the determination area

Other than in relation to water, the Kuuku Ya'u People have the right to possession, occupation, use, and enjoyment of the area described in Part 1 of Schedule 4, and shown in dark blue on the map in Schedule 6. 

In relation to water, the Kuuku Ya'u People have the non-exclusive right to take the water of the area for personal, domestic, and non-commercial communal purposes

Non-exclusive native title exists over part of the determination area

This area is described in Part 2 of Schedule 4 and shown in light blue on the map in Schedule 6.

These non-exclusive native title rights and interests 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 Kuuku Ya'u People 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:

• The rights and interests of parties under the Portland Roads ILUA (QI2008/029) and the Iron Range, Portland Roads and Islands ILUA (QI2011/049);
• 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;
• Ergon Energy Corporation as the owner of works which supply electricity in the area, including rights to inspect, maintain and manage any electricity works in the determination area under the Electricity Act 1994;
• Cook Shire Council as the local government jurisdiction under the Local Government Act 2009;
• Far North Queensland Ports Corporation Limited as a port authority operating within the determination area under the Transport Infrastructure Act 1994;
• The Australian Maritime Safety Authority as the marine safety regulator under the Navigation Act 2012;
• 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 Northern Kuuku Ya'u Aboriginal Corporation RNTCB Land Trust as Trustee of Lot 46 on SP241418 under the Aboriginal Land Act 1991;
• The Northern Kuuku Ya'u Aboriginal Corporation RNTBC as Trustee of Lot 2 on SP241427 under the Aboriginal Land Act 1991;
• 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 Kapaay Kuuyun Aboriginal Corporation performs the functions required under the NTA on behalf of the Kuuku Ya'u People.

The native title is held in trust.

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

Background

This determination is one of the first in a series of nine native title claims made by the Cape York United #1 Claim Group. The initial claim was filed in December 2014 with the objective of resolving all outstanding native title claims in Cape York. Due to the size and complexity of the original claim, the claim area was divided into nine 'report areas' to determine connection, which was undertaken by a number of anthropologists [13]. The Cape York United #1 Claim Group acknowledged 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 [16].

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

This determination was celebrated by the Kuuku Ya'u People, with traditional owners dancing outside the Cairns Supreme Court when the determination was handed down. Senior Elder, seventy-one year old Father Brian, described the decision as "very important for the future children, generation to generation to generation" (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 determination and the Uutaalnganu (Night Island) 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 [3].

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) [2]. 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) [2]. 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 [80]-[92]. Her Honour considered there to be considerable evidence to demonstrate that the determination met the requirements of s 225 of the NTA [90].

Mortimer J acknowledged that the determination was the result of "dedicated and methodical efforts" to comply with the NTA 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 [50]. Given these challenges, the consensual recognition between the parties was given effect by the Federal Court, with Mortimer J stating that stated that "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" [50].

Native title exists over the entire determination area. 

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