Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination)

• Jurisdiction: Australia Federal only
• Judgment Date: 25 November 2021
• Neutral Citation: [2021] FCA 1465
• Court: Federal Court
• Date: 25 November 2021

FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465

File number(s):	QUD 673 of 2014
Judgment of:	MORTIMER J
Date of judgment:	25 November 2021
Catchwords:	NATIVE TITLE – consent determination – authorisation – exercise of discretion under s 84D of the Native Title Act 1993 (Cth) – nomination of new prescribed body corporate
Legislation:	Native Title Act 1993 (Cth) ss 84D, 87A, 225
Cases cited:	Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1 Ashwin (on behalf of the Wutha People) v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; 276 FCR 203 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42
Division:	General Division
Registry:	Queensland
National Practice Area:	Native Title
Number of paragraphs:	91
Date of hearing:	25 November 2021
Counsel for the Applicant:	Mr D O’Gorman SC with Mr D Yarrow
Solicitor for the Applicant:	Cape York Land Council Aboriginal Corporation
Counsel for the First Respondent:	Mr S Lloyd SC with Ms N Kidson QC and Ms C Klease
Solicitor for the First Respondent:	Crown Law Queensland
Solicitor for the Second Respondent:	Australian Government Solicitor
Solicitor for the Fifth Respondent:	Preston Law

ORDERS

		QUD 673 of 2014
BETWEEN:	MICHAEL ROSS, SILVA BLANCO, JAMES CREEK, JONATHAN KORKAKTAIN, REGINALD WILLIAMS, WAYNE BUTCHER, CLARRY FLINDERS, PHILIP PORT, HS (DECEASED) Applicant
AND:	STATE OF QUEENSLAND First Respondent ; COMMONWEALTH OF AUSTRALIA (and others named in the Schedule) Second Respondent

order made by:	MORTIMER J
DATE OF ORDER:	25 NOVEMBER 2021

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth).

THE COURT NOTES THAT:

1. The Applicant agrees that the areas listed in Schedule 5 are areas where native title has been wholly extinguished.

THE COURT ORDERS THAT:

1. There be a determination of native title in the terms proposed in these orders, despite any actual or arguable defect in the authorisation of the applicant to seek and agree to a consent determination pursuant to s 87A of the Native Title Act 1993 (Cth).

BY CONSENT THE COURT ORDERS THAT:

1. There be a determination of native title in the terms set out below (the determination).

2. Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

1. In this determination, unless the contrary intention appears:

“Animal” has the meaning given in the Nature Conservation Act 1992 (Qld); “External Boundary” means the area described in Schedule 3; "High Water Mark" means the ordinary high-water mark at spring tides;

"land" has the same meaning as in the Native Title Act 1993 (Cth);

"Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; “Local Government Area” has the meaning given in the Local Government Act 2009 (Qld);

"Natural Resources" means: (a) an Animal, a Plant, or any other non-human life form; and (b) inorganic material; but does not include: (c) Animals that are the private personal property of any person; (d) crops that are the private personal property of another; (e) minerals as defined in the Mineral Resources Act 1989 (Qld); and (f) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

“Plant” has the meaning given in the Nature Conservation Act 1992 (Qld); “Reserve” means a reserve dedicated, or taken to be a reserve, under the Land Act 1994 (Qld); “Spouse” has the meaning given in the Acts Interpretation Act 1954 (Qld); "Water" means: (a) water which flows, whether permanently or intermittently, within a river, creek or stream; (b) any natural collection of water, whether permanent or intermittent; (c) water from an underground water source; and (d) tidal water; “waters” has the same meaning as in the Native Title Act 1993 (Cth).

2. The determination area is the land and waters described in Schedule 4 and depicted in the maps attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

3. Native title exists in the Determination Area.

4. The native title is held by the Uutaalnganu (Night Island) People described in Schedule 1 (the Native Title Holders).

5. Subject to orders 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are:

(a) other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b) in relation to Water, the non-exclusive right to take the Water of the area for personal, domestic and non-commercial communal purposes.

6. Subject to orders 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

(a) access, be present on, move about on and travel over the area;

(b) live and camp on the area and for those purposes to erect shelters and other structures thereon;

(c) hunt, fish and gather on the land and waters of the area;

(d) take the Natural Resources from the land and waters of the area;

(e) take the Water of the area for personal, domestic and non-commercial communal purposes;

(f) be buried and to bury Native Title Holders within the area;

(g) maintain places of importance...