Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 15) (Weipa Peninsula People determination)

• Jurisdiction: Australia Federal only
• Judgment Date: 05 July 2023
• Neutral Citation: [2023] FCA 732
• Date: 05 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 15) (Weipa Peninsula People determination) [2023] FCA 732

File number(s):	QUD 673 of 2014
Judgment of:	MORTIMER CJ
Date of judgment:	5 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:	66
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:	5 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. 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) Batavia ILUA (QI2012/120); and

(b) Peninsula Developmental Road ILUA (QI2016/049).

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); “DOGIT” has the same meaning as ‘Deed of Grant in Trust’ or ‘DOGIT’ in the Land Act 1994 (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); “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 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; and “waters” has the same meaning as in the Native Title Act 1993 (Cth). Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

5. The determination area is the land and waters described in Schedule 4 and depicted in the map 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.

6. Native title exists in the Determination Area.

7. The native title is held by the Weipa Peninsula People described in Schedule 1 (the Native Title Holders).

8. Subject to orders 10, 11, and 12 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...