Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 13) (NCY #2 independent parcels determination)[2022] FCA 1178

Gulf of Carpentaria, western Cape York

The determination area comprises all the lands and water above the high water mark of three individual parcels of land near the west coast of Cape York, between Cullen Point to the north and Albatross Bay to the south. The total area of the three lots is 8.39 hectares. The southernmost lot is Lot 2 on WP28, near Duyfken Point on Albatross Bay (see Sheet 1 of Schedule 5). The northernmost lot is Lot 26 on SP278077, between Clermont Street and the beachfront in the town of Mapoon (see Sheet 2 of Schedule 5). Located between these, is Lot 9 on CP843317 on Old Mapoon Road (see Sheet 3 of Schedule 5). Schedules 3 and 5, 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 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 Northern Cape York #2 Native Title Holders. 

For a detailed description of the group 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 Northern Cape York #2 Native Title Holders have the right to possession, occupation, use, and enjoyment of the area described in Part 1 of Schedule 3 as Lot 26 on SP278077 in Mapoon. The area is shown in dark blue on Sheet 2 of Schedule 5.

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

Part 2 of Schedule 3 describes the non-exclusive area as being comprised of Lot 2 on WP28 near Albatross Bay and Lot 9 on CP843317 on Old Mapoon Road. The area is shown in light blue on Sheets 1 and 3 of Schedule 5 respectively.

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 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.

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

• the parties under the PNG Gas Pipeline ILUA, Mapoon Aboriginal Shire Council and Northern Cape York #2 ILUA, and Northern Cape York Group #2 and Ergon Energy 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;
• Amplitel Pty Ltd as trustee of the Towers Business Operating Trust;
• Alcan South Pacific Pty Ltd under the Alcan Agreement;
• Cook Shire Council as the local government jurisdiction under the Local Government Act 2009, and as the holder of interests in land;
• the State of Queensland, Mapoon Aboriginal Shire Council and Cook Shire Council to maintain roads and maintain Reserves;
• RTA Weipa Pty Ltd under the Comalco Agreement;
• 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 Mokwiri Aboriginal Corporation performs the functions required under the NTA on behalf of the Northern Cape York #2 Native Title Holders.

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 determinations recognising the native title of the Gudang Yadhaykenu People and the Atambaya People in Cape York. These three determinations were the last to be made of the nine claims that cover the area of the Cape York United #1 Claim, one of the largest land claims in Australia's history (Guenzler).

The Northern Cape York #2 Native Title Holders had previously been recognised to hold native title over approximately 393,137 hectares of land in Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 (Coconut determination). This determination is an "expansion" of the group's existing native title interests [36], resolving a patchwork of undetermined parcels of land within the Cape York United #1 Claim area, over which native title could not be recognised at the time of the earlier determinations [2]. 

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 [25]-[34]. The determination complied with the requirements of ss 94A and 225 of the NTA [32], so the court could conclude that it was appropriate to make the orders sought.

Mortimer J accepted that there was enough evidence of the connection of the Northern Cape York #2 Native Title Holders in the Coconut determination to support their native title in these three parcels [22]. Her Honour cited the evidence of Dr Redmond, who said "these data all point towards the existence of a single regional society uniting the NCY #1 and #2 claimant groups under a shared body of laws and customs." Both the applicant and the State agreed that there was sufficient material on connection [22], and Mortimer J found it appropriate to give effect to their agreement under 84D of the NTA [21].  

Native title exists over the entire determination area.

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