Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772

Cape York Peninsula

The determination area comprises all of the land and waters described by lots, or parts of lots, on plan and any rivers, streams, creeks or lakes as described in Schedule 4. For a detailed description and map see Schedules 4 and 6 respectively.

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

Registered on the National Native Title Register on 6 July 2022

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772

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 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 Ayapathu People.

For a detailed description of the Ayapathu People see Schedule 1 of the Court determination via the above URL link.

Exclusive native title exists in part of the determination area

Other than in relation to water, the Ayapathu People have the right to possession, occupation, use, and enjoyment of 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 Ayapathu 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 as all the land and waters within the lots, or parts of lots, listed in Part 2 of Schedule 4 that fall within the determination area including all rivers, creeks, streams, and lakes that are not waters which form part of a lot on plan. These rights and interests include the right to:

• accessing, being present on, moving about on and travelling over the area;
• living and camping on the area and for the purposes to erect shelter 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 Ayapathu People to other Ayapathu 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 Oyala Thumotang National Park (Cape York Peninsula Aboriginal Land) and adjacent Aboriginal Land Indigenous Land Use Agreement (ILUA), PNG Gas Pipeline ILUA, Peninsula Developmental Road ILUA, and Kulla (McIlwraith Range & Mount Croll) ILUA;
• holders of 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;
• the Commonwealth; and
• the State of Queensland.

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

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 a day after determinations recognising the native title of the Northern Kaanju People and the Southern Kaantju People, and on the same day as a determination recognising the native title of the Lama Lama People [1]. 

Through providing connection and occupation material, the members of the Ayapathu  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 a signed agreement with the Court on 6 July 2022, pursuant to s 87 of the NTA. 

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].

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 record, as well as testimonies and a range of data, the State accepted that such a credible basis for connection and tenure exists, and the Court accepted the parties' submissions in meeting the requirements of s 223 of the NTA [29].

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 and was satisfied that it was appropriate to make this determination of native title [41]-[44].

Native title exists in the entire determination area

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