Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination)

• Jurisdiction: Australia Federal only
• Judgment Date: 06 July 2023
• Neutral Citation: [2023] FCA 733
• Date: 06 July 2023
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 16) (Central West Wik determination) [2023] FCA 733

File number(s):	QUD 673 of 2014
Judgment of:	MORTIMER CJ
Date of judgment:	6 July 2023
Catchwords:	NATIVE TITLE – consent determination – nomination of prescribed body corporate
Legislation:	Native Title Act 1993 (Cth) ss 56, 61, 66, 67, 84D, 87A, 94A, 199C, 225
Cases cited:	Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 10) [2022] FCA 1129 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 11) (Atambaya determination) [2022] FCA 1176 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 12) (Gudang Yadhaykenu determination) [2022] FCA 1177 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 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:	74
Date of hearing:	Determined on the papers
Counsel for the Applicants:	Mr D O’Gorman SC with Mr D M Yarrow
Solicitor for the Applicants:	Cape York Land Council Aboriginal Corporation
Counsel for the First Respondent:	Ms C Klease with Ms A Tarrago
Solicitor for the First Respondent:	Crown Law Queensland

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 CJ
DATE OF ORDER:	6 July 2023

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:

A. Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park area within the External Boundary will be addressed after the matter has proceeded to determination.

B. The Central West Wik People (being the proposed native title holders described in Schedule 1 of the Determination) have indicated a desire to enter into negotiations with the State of Queensland (the State) in relation to whether s 47C of the Native Title Act 1993 (Cth) would have application to the land and waters within Lot 25 on SP241398 (the park area).

C. Subject to paragraph D below, the parties agree that, if agreement is reached in accordance with s 47C(1)(b) of the Native Title Act 1993 (Cth) that s 47C is applicable to the park area, the parties would not oppose an application being brought on behalf of the Ngan-Aak Kunch Aboriginal Corporation RNTBC (ICN: 4097) pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to the park area within the Determination Area for which agreement is reached regarding the application of s 47C of the Native Title Act 1993 (Cth).

D. The agreement of the parties described in paragraph C above not to oppose an application being brought to vary the Determination in relation to the park area, is subject to the Applicant and the State having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to the park area, and any other relevant matters.

E. 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. Pursuant to s 199C(1A) of the Native Title Act 1993 (Cth), the Registrar is not to remove the following indigenous land use agreements from the Register of Indigenous Land Use Agreements, at least to the extent the indigenous land use agreements fall within the External Boundary:

a. Peninsula Developmental Road ILUA (QI2016/049); and

b. Oyala Thumotang National Park (Cape York Peninsula Aboriginal Land) and adjacent Aboriginal Land ILUA (QI2012/071).

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

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

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

4. 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;

“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); “Native Title Determination Application” means the Cape York United #1 native title claim filed on 11 December 2014 in QUD 673 of 2014;

“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...