Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176

Central Cape York Peninsula

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

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

Registered on the National Native Title Register on 6 October 2022.

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176

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 part of the determination area

It consists of exclusive and non-exclusive native title rights and interests.

Areas excluded from the determination area 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 Atambaya 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 Atambaya People 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 shown in dark blue on the map in Schedule 6. 

In relation to water, the Atambaya 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 the entire determination area

These rights and interests exist over the areas described in Part 2 of Schedule 4, and 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 shelters and other structures;
• hunting, fishing, and gathering on the land and waters of the area;
• taking the Natural Resources from the land and waters of the area;
• taking the Water of the area for personal, domestic, and non-commercial communal purposes;
• being buried and to bury Atambaya People within the area;
• maintaining places of importance and areas of significance;
• teaching on the area the physical and spiritual attributes of the area and the traditional laws and customs of the Atambaya People to other Atambaya People or persons otherwise entitled to access the area;
• holding meetings on the area;
• conducting ceremonies on 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), and PNG Gas Pipeline ILUA;
• Telstra Corporation Limited, Amplitel Pty Ltd as trustee of the Towers Business Operating Trust;
• RTA Weipa Pty Ltd under the Comalco Agreement;
• Alcan South Pacific Pty Ltd under the Alcan Agreement;
• Cook Shire Council; and
• the State of Queensland

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

Background

This determination, along with the Gudang Yadhaykenu People and the Northern Cape York #2 Native Title Holders determinations are the last of the nine determinations that cover the Cape York United #1 claim area, which was claimed in December 2014 with the objective of resolving all outstanding native title claims in Cape York. The original claim was large and complex, and was divided into nine separate claims to reflect none Traditional Owner groups [3].

This determination, along with the Gudang Yadhaykenu determination, returned more than 120,000 hectares of ancestral homelands to traditional owners in the northern region of Cape York (Guenzler). These determinations mark the conclusion of the Cape York United #1 Claim, which altogether is one of the largest in Australia's history (Guenzler). Richie Ah Mat, Chairman of the Cape York Aboriginal Land Council described the day the determinations were made as a "day of celebration, relief, and remembering our Elders who fought so tenaciously to make this happen" (Guenzler). 

Details of Judgment

Agreement was reached between the parties through a process of mediation and case management [83]. The Court gave effect to this agreement, with Mortimer J being satisfied that the Court had the power to make the determination under s 87A of the NTA [63]-[73]. 

The State sought an order that the Batavia ILUA not be removed from the Register of Indigenous Land Use Agreements despite the native title determination, under s 199C(1A) of the NTA [74]. Mortimer J was satisfied that it was appropriate to do so in order to ensure the continued operation of the ILUA [79].

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 [37], including a possible defect in the authorisation of the application relating to the description of the native title claimant group [23]-[38]. In giving effect to the consensual recognition of native title between the parties, Mortimer J stated that the determination would "help preserve and protect [the Atambaya People's] country ... so that their knowledge and law can continue to be passed down to future generations" [7].  

Native title exists in the entire determination area

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