Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773

Cape York

The determination area comprises approximately 326,589 hectares in the Shelburne Bay area on the east of Cape York. It includes the Lama Lama National Park and part of the Rinyirru (Lakefield) National Park. There are various waterways within the determination area, including parts of the Bizant River, North Kennedy River and Jam Tin Creek. Schedules 4 and 6, attached, provide a written description and map of the area covered.

The area is within the jurisdiction of the Cook Shire Council.

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 and The State of Queensland and The Commonwealth of Australia (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 Lama Lama People. 

For a detailed description of the native title holders see Schedule 1 of the Court determination via the above URL link.

Exclusive native title exists over part of the determination area

Other than in relation to water, the Lama Lama 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 Lama Lama 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 the parts of the determination area

These parts are described in Part 2 of Schedule 4 as all the lands and waters within certain lots on plan and, apart from the waters on a plan, all the rivers, creeks, streams, and lakes within the determination area. The area is shown in light blue in the map in Schedule 6. 

These 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 Lama Lama 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.

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

• the parties under the Rinyirru (Lakefield) National Park ILUA, Lilyvale ILUA, Running Creek ILUA, Kulla (McIlwraith Range & Mount Croll) ILUA, Peninsula Developmental Road ILUA, PNG Gas Pipeline ILUA, and Rindoparr Area B ILUA;
• 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 under the Local Government Act 2009, and as the holder of interests in land;
• RTA Weipa Pty Ltd under the Comalco Agreement;
• the State of Queensland and the Cook Shire Council to maintain roads and maintain Reserves
• 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
• 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 Lama Lama Aboriginal Corporation performs the functions required under the NTA on behalf of the Lama Lama People

The native title is held in trust.

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

Background

In December 2014, the Cape York United #1 application was made with the objective of resolving all outstanding native title claims in Cape York. The claim being large and complex was divided into nine separate claims to reflect distinct Traditional Owner groups within the area.

This determination was made the same day as a determination recognising the native title of the Ayapathu People, and the day after determinations recognising the native title of the Northern Kaanju and Southern Kaantju People.

Lama Lama Elder Karen Liddy stated, on the handing down of the determination, that the Lama Lama Peoples' "celebrations will be happiness, joy and tears" (Cluff). 

Details of Judgment

Mortimer J of the Federal Court was satisfied that the Court had the power to make the determination under s 87A of the NTA [38]-[46]. The determination complied with the requirements of ss 94A and 225 of the NTA [44], so the Court could conclude that it was appropriate to make the orders sought and carefully considered by the parties [46]. 

Mortimer J acknowledged the efforts of the Cape York United #1 Claim Group to have native title recognised despite factual and legal challenges which arose in the seven-year process [25], including a possible defect in the authorisation of the application relating to the description of the native title claimant group [14]-[25]. Mortimer J stated that this native title determination would "help preserve the country of the Lama Lama People so that [their] deep connection is protected" [5].

Native title exists over the entire determination area. 

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