Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770

Northern Kaanju, Cape York Peninsula

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in Schedule 4. This includes both exclusive areas in Part 1, and non-exclusive areas in Part 2. For a detailed description of the lots, see Schedules 4. For a map of the area, see Schedule 6. Schedules 3 and 5 outline the external boundary and areas not included in the determination area respectively.

The area is within the jurisdiction of the Cook Shire Council and the Lockhart River Aboriginal Shire Council.

Registered on the National Native Title Register on 5 July 2022.

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Northern Kaanju determination) [2022] FCA 770

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 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.

Areas excluded from the determination area, including areas excluded on the basis of extinguishment, are described in Schedule 5.

These rights and interests are exercisable in accordance with 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 members of the Northern Kaanju People.

For a detailed description of the group 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 native title holders have the right to possession, occupation, use, and enjoyment of the southern part of the determination area to the exclusion of all others. The area is described in Part 1 of Schedule 4, and indicated in dark blue on the map in Schedule 6. 

In relation to water, the Northern Kaanju 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 in part of the determination area

These rights and interests exist over the areas described in Part 2 of Schedule 4. These non-exclusive rights include:

• accessing, being present on, moving about on, and travelling over the area;
• living and camping on the area and for the purposes to erect shelters and other structures;
• hunting, fishing, and gathering on the land and waters of the area;
• being buried and to bury Native Title Holders within the area;
• teaching on the area the physical and spiritual attributes of the area and the traditional laws and customs of the Northern Kaanju People to other Northern Kaanju People or persons otherwise entitled to access the area;
• lighting fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose for hunting or clearing vegetation

For more detail on these non-exclusive rights, please refer to the Extract attached.

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

• parties under the Batavia Indigenous Land Use Agreement (ILUA), PNG Gas Pipeline ILUA, Peninsula Developmental Road ILUA, and Iron Range, Portland Roads and Islands ILUA;
• the holders of the following leases granted pursuant to the Land Act 1994 (Qld)
• Telstra Corporation Limited, Amplitel Pty Ltd as trustee of the Towers Business Operating Trust;
• Cook Shire Council;
• Lockhart River Aboriginal Shire Council;
• RTA Weipa Pty Ltd under the Comalco Agreement;
• Alcan South Pacific Pty Ltd under the Alcan Agreement; and
• the State of Queensland

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

Background

The Northern Kaanju Application was filed on 5 July 2022, the same day as a determination recognising the native title of the Southern Kaantju People, and the day before determinations recognising the native title of the Lama Lama People and the Ayapathu People [1]. Together, these determinations resolve four of nine parts of the Cape York United #1 claim, within a geographic region that has come to be known as the 'Kwok Report Area' [3]. Given that there are multiple distinct native title holding groups within the Cape York area, the Court addressed each determination separately [3].   

Through providing connection and occupation material, the members of the Northern Kaanju Group negotiated with the State of Queensland to come to an agreement regarding their native title rights and interests in the determination area. The parties were able to file the signed agreement with the Court on 5 July 2022, pursuant to s 87A of the NTA. This determination, along with other determinations made in the days preceding, recognised native title over more than a million hectares of land in Cape York and was celebrated by traditional owners (Cluff). Joanne Nelson, Northern Kaanju Traditional Owner, paid tribute to the Elders who did not survive to see the outcome, and emphasised the importance of looking after Country now that the Northern Kaanju's interest had been legally recognised (Cluff). 

Details of Judgment

After detailed deliberation and consultation with lawyers and anthropologists, both boundary description and native group composition were settled between the parties [19-20]. Through evidence informed by historical, anthropological and archival records, as well as testimonies and a range of data, the State accepted that such a credible basis for connection and tenure exists, and Mortimer J accepted that the parties' submissions met the requirements of s 223 of the NTA [29-30]. Justice Mortimer was satisfied that an order under s 87A of the NTA was appropriate [50]. With the State following a detailed step by step process involving considerable human and financial resources, Mortimer J was confident that the State had reached a carefully considered view [53]. Accordingly, Justice Mortimer determined that members of the Northern Kaanju group have native title interests in parts of the determination area [59].

Native title exists in the entire determination area

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