Kuuku Ya'u People v State of Queensland [2009] FCA 679 (25 June 2009)

Last Updated: 29 June 2009

FEDERAL COURT OF AUSTRALIA

Kuuku Ya’u People v State of Queensland [2009] FCA 679

NATIVE TITLE – consent determination - request for orders to be made under s 87 of the Native Title Act 1993 (Cth) – consideration of whether the orders appear appropriate to the Court and whether orders ought to be made as sought determining native title rights and interests in the Kuuku Ya’u People

Native Title Act 1993 (Cth), ss 13, 56, 57, 87, 94A, 223, 225
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), Reg 4

Northern Territory v Alyawarr (2005) 145 FCR 442 - cited
Mabo v Queensland (No. 2) (1992) 175 CLR 1 - cited
Munn (for and on behalf of the Gungari People) v Queensland (2001) 115 FCR 109 - cited
Smith & Ors v State of Western Australia (2000) 104 FCR 494 - cited

DEBORAH HOBSON, IVY HOBSON, LORRAINE CLARMONT, LUCY HOBSON, DONALD HOBSON AND ALBERT DOCTOR ON BEHALF OF THE KUUKU YA'U PEOPLE v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, COOK SHIRE COUNCIL, LOCKHART RIVER ABORIGINAL SHIRE COUNCIL, AUSTRALIAN MARITIME SAFETY AUTHORITY, MICHAEL CLINCH AND ROBERT WILLIAM DUNN
QUD6016 of 1998

GREENWOOD J
25 JUNE 2009
PORTLAND ROADS, CAPE YORK PENINSULA

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD6016 of 1998

BETWEEN:

DEBORAH HOBSON, IVY HOBSON, LORRAINE CLARMONT, LUCY HOBSON, DONALD HOBSON AND ALBERT DOCTOR ON BEHALF OF THE KUUKU YA'U PEOPLE Applicant

AND:	STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, COOK SHIRE COUNCIL, LOCKHART RIVER ABORIGINAL SHIRE COUNCIL, AUSTRALIAN MARITIME SAFETY AUTHORITY, MICHAEL CLINCH AND ROBERT WILLIAM DUNN Respondents

JUDGE:	GREENWOOD J
DATE OF ORDER:	25 JUNE 2009
WHERE MADE:	PORTLAND ROADS, CAPE YORK PENINSULA

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so by consent of the parties and pursuant to section 87 of the Native Title Act 1993 (Cth),

THE COURT ORDERS THAT:

1. Native title exists in relation to the Determination Area.
2. The native title is held by the persons described in Schedule 1 (“the native title holders”).
3. Subject to paragraphs 7 and 8, the nature and extent of the native title rights and interests in relation to that part of the Determination Area identified in Schedule 2 other than in relation to Water, are the rights to possession, occupation, use and enjoyment to the exclusion of all others.
   
4. Subject to paragraphs, 7, 8 and 9, the nature and extent of the native title rights and interests in relation to those parts of the Determination Area referred to in Schedule 3, other than in relation to Water, are the non-exclusive rights to:

(a) be present on, including by accessing, traversing and Camping on, the Determination Area;

(b) take, use, share and exchange Traditional Natural Resources from the Determination Area for non-commercial cultural, spiritual, personal, domestic or communal purposes;

(c) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from harm;

(d) light camp fires on the Determination Area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

5. Subject to paragraphs 7, 8 and 9, the nature and extent of the native title rights and interests in relation to that part of the Determination Area described in Schedule 4, other than in relation to Water, are that they confer on the native title holders non-exclusive rights to:

(a) be present on, including by accessing and traversing the area; and

(b) take and use Traditional Natural Resources for non-commercial cultural, spiritual, personal, domestic or communal purposes.

6. Subject to paragraphs 7, 8 and 9 the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to:

(a) hunt and fish in or on, and gather from, the Water for non-commercial cultural, spiritual, personal, domestic or communal purposes; and

(b) take and use the Water for non-commercial cultural, spiritual, personal, domestic or communal purposes.

7. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
   
8. The native title rights and interests are subject to and exercisable in accordance with:

(a) the Laws of the State and the Commonwealth; and

(b) the traditional laws acknowledged and traditional customs observed by the native title holders.

9. The native title rights and interests referred to in paragraphs 4, 5 and 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
   
10. The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 6.
11. The relationship between the native title rights and interests described in paragraphs 3, 4, 5 and 6 and the other rights and interests described in Schedule 6 (the “other rights and interests”) is that:

(a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests;

(b) where the non-extinguishment principle applies to the other rights and interests, to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests:

(i) the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and

(ii) if the other rights and interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have effect to the extent of the removal or cessation of the other rights and interests; and

(c) the other rights and interests and any activity that is required or permitted by or under and done in accordance with the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests.

12. In this order the words and expressions used have the same meanings as they have in the Native Title Act 1993 (Cth), except for the words defined in this order including the following defined words and expressions:
    

“Camping” does not include permanent residence or the construction of permanent structures or fixtures;

“Determination Area” means the land and waters described in Schedules 2, 3 and 4 and shown on the plan in Schedule 5, and to the extent of any inconsistency between the description and the plan, the description in Schedules 2, 3 and 4 prevails;

“High Water Mark” has the meaning given in the Land Act 1994 (Qld);

“Laws of the State and the Commonwealth” means the common law and the laws of the State and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

“Traditional Natural Resources” means:

(a) “animals” as defined in the Nature Conservation Act 1992 (Qld);

(b) “plants” as defined in the Nature Conservation Act 1992 (Qld);

(c) any wax, clay, soil, sand, gravel or rock on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders;

“Tidal Water” has the meaning given in the Land Act 1994 (Qld); and

“Water” has the meaning given in the Water Act 2000 (Qld) and Tidal Water.

THE COURT FURTHER ORDERS THAT:

13. Upon paragraphs 1-11 taking effect:

(a) The native title is held in trust; and

(b) The Northern Kuuku Ya’u Kanthanampu Aboriginal Corporation, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) is to:

(i) be the prescribed body corporate for the purpose of sections 56(1) and 56(2) of the Native Title Act 1993 (Cth); and

(ii) perform the functions mentioned in section 57(1) of the Native Title Act 1993 (Cth).

14. Paragraphs 1-11 will take effect on the agreements referred to in item 1 of Schedule 6 being registered on the register of indigenous land use agreements.
15. In the event that the agreements referred to in paragraph 14 are not registered on the register of indigenous land use agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.
    
16. Each party to the proceeding is to bear its own costs.

SCHEDULE 1
Native title holders

The native title holders are the Kuuku Ya’u People being the descendents of the following persons:

1. Johnny (Yarakupi) Doctor and Nancy (Tawamulu) as a result of their union;
   
2. Charlie Kanora as a result of union with his two wives Nellie and Jean;
   
3. Tom ‘flathead’ Platt (father of Johnny Pascoe);
   
4. Charlie James (brother of Tom ‘flathead’ Platt);
   
5. Peter (Piiramu) Pascoe (including adopted son Lawrence Fruit);
   
6. Agnes (Puruwa) (wife of Jimmy Hobo);
   
7. Bob Pascoe (brother of Annie Anderson);
   
8. Annie Anderson (wife of Fred Charles Lancaster);
   
9. Topsy (wife of John George Hollingsworth);
   
10. Toby (Tupamaynaku) Accoom and Kitty (Tunpu) as a result of their union;
    
11. Charlie Claudie (father of Charlie (Kutini) Giblet renamed after Hugh Giblet);
    
12. Barney Claudie and Minnie (Chinka) Doctor as a result of their union;
    
13. Hughie (Tantuki) Temple;
    
14. Annie Butcher, and
    

persons adopted by them according to Kuuku Ya’u traditional law and custom.

SCHEDULE 2
Part of the Determination Area

The land and waters above the High Water Mark of the following: –

Area description	Determination Plan Description
Lot 3 on Plan USL36795	6
Lot 22 on Plan SP161888	10
Lots 1 to 6 on Plan CP889845*	1 (pt)
Lot 7 on Plan SP104566*	1 (pt)
Lot 18 on Plan USL8030*	4 (pt)
Lot 46 on Plan USL8030*	2 (pt)
Lot 6 on Plan WMT22*	4 (pt)
Lots 1 to 5 on Plan AP16402*	4 (pt) and 5
Lot 5 on Plan WMT25*	4 (pt)
Lot B on Plan AP3164*	4 (pt)
Areas totalling about 3,925 square metres contained within stations 3-10-5-6-17-16-3 and 4-A-6-5-4 (parish of Wymouth, town of Portland Roads) and shown as road to be opened on Crown Plan 889845*	1 (pt)
Lot 99 on Plan AP14368*	4 (pt)

‘*’ denotes an area to which section 47B of the Native Title Act 1993 (Cth) applies
SCHEDULE 3
Part of the Determination Area

The land and waters above the High Water Mark of the following:

Area description	Determination Plan Description
Lot 2 on Plan USL36795	8
Lot 15 on Plan NPW368 (“Quoin Island National Park”)	9
Lot 16 on Plan NPW361 (“Piper Islands National Park”)	14, 15, 16, 17 and 18
Lot 423 on Plan NPW616 excluding former Lot 2 on Plan SH2, former Lot 4 on Plan SH4 and former Lot 5 on Plan SH4 (“Forbes Islands National Park”)	11, 12 and 13
Lot 3 on Plan MPH40636	3

SCHEDULE 4

Part of the Determination Area

Area Description	Determination Plan Description
The land and waters within the external boundary commencing at Easting 728220m; Northing 8654605m within the centre of the mouth of the Olive River, then easterly to Easting 753410m; Northing 8654400m; then south easterly to Easting 768935m; Northing 8648413m, then south easterly to Easting 779713m; Northing 8630546m, then generally southerly to Easting 782464m; Northing 8603484m, then south westerly to Easting 771186m; Northing 8593198m, then westerly to the High Water Mark on the mainland coast at Northing 8593305m, then generally northerly along the High Water Mark on the mainland coast to the southern bank of the Olive River, then northerly back to the commencement point and specifically excluding: Lot 16 on Plan SP135860 (formerly part of Lot 15 on Plan WMT57); The land and waters above the High Water Mark of the following:	7
Lot 16 on Plan NPW361	14, 15, 16, 17 and 18
Lot 423 on Plan NPW616 including former Lot 2 on Plan SH2, former Lot 4 on Plan SH4 and former Lot 5 on Plan SH4	11, 12, 13, 24 (pt) and 25 (pt)
Lot 15 on Plan NPW368	9
Lot 2 on Plan USL36795	8
Lot 3 on Plan USL36795	6
Area Description	Determination Plan Description (continued)
Lot 22 on Plan SP161888	10
Lot 4 on PlanWMT63	27 (pt)
Lot 411 on Plan NPW 604	26 and 27 (pt)
An area of esplanade approximately 30.175 metres wide shown on Plan SH2	24 (pt)
An area of esplanade approximately 30.175 metres wide shown on Plan SH4	25 (pt)
An area of esplanade approximately 20.117 metres wide shown on Plan WMT 63; and	27 (pt)
Australian Maritime Safety Authority interests, namely:
AN 251 located at Eel Reef comprising a circular area with a radius of 5 metres extending from a centre at Easting 757909.115m; Northing 8627099.481m	22
AN 166 located at Hazel Reef comprising a circular area with a radius of 5 metres extending from a centre at Easting 750285.157m; Northing 8641663.864m	21

AN 439 located at Inset Reef comprising a circular area with a radius of 5 metres extending from a centre at Easting 746770.515m; Northing 8645185.241m	20
Area Description (continued)	Determination Plan Description (continued)
AN167 located at Middle Reef comprising a circular area with a radius of 5 metres extending from a centre at Easting 760242.750m; Northing 8614270.840m	23

AN 281 located at Piper Islands comprising a six sided polygon that commences at point 1 with coordinates of 744619.47 east and 8644664.66 north, continuing in a south easterly direction to point 2 with coordinates of 744634.00 east 8644661.07 north, then in a south easterly direction to point 3 with coordinates of 744640.79 east 8644649.31 north, then in a south westerly direction to point 4 with coordinates of 744628.92 east 8644642.34 north, then in a north westerly direction to point 5 with coordinates of 744614.39 east 8644646.15 north, then in a north westerly direction to point 6 with coordinates of 744607.71 east 8644657.87 north, then in a north easterly direction to terminate at point 1.

19

Note
Reference datum
Grid coordinates have been provided by the State of Queensland and the Commonwealth and are referenced to the Map Grid of Australia 1994 Zone 54 (MGA94) in metres.

Data Reference and source
Cadastre data sourced from the Department of Environment and Resource Management, Qld (May 2008).

Use of Coordinates
Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedure, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE 5

Plan of Determination Area

SCHEDULE 6

Other interests in the Determination Area

1. The rights and interests of the parties under the following agreements:
   

(a) the indigenous land use agreement (“ILUA”) between Deborah Hobson, Ivy Hobson, Lorraine Clarmont, Lucy Hobson, Donald Hobson and Albert Doctor and the Cook Shire Council entitled the ‘Kuuku Ya’u People Portland Roads ILUA’ executed on 17 April 2009;

(b) the ILUA between Deborah Hobson, Ivy Hobson, Lorraine Clarmont, Lucy Hobson, Donald Hobson and Albert Doctor, the State of Queensland and Northern Kuuku Ya’u Kanthanampu Aboriginal Corporation, entitled the ‘Kuuku Ya’u People Protected Areas ILUA’ executed on 29 May 2009; and

(c) the ILUA between Deborah Hobson, Ivy Hobson, Lorraine Clarmont, Lucy Hobson, Donald Hobson and Albert Doctor, the State of Queensland, the Great Barrier Reef Marine Park Authority and Northern Kuuku Ya’u Kanthanampu Aboriginal Corporation, entitled the ‘Kuuku Ya’u People Marine Park ILUA’ executed on 29 May 2009.

2. The rights and interests of the State of Queensland in the following reserves, the rights and interests of the persons in whom they are vested and the rights and interests of the persons entitled to access and use those reserves for the respective purpose for which they are reserved:

(a) Lot 5 on Plan CP889845;

(b) Lot 6 on Plan CP889845;

(c) Lot 3 on MPH40636; and

(d) Lot 7 on Plan SP104566.

3. The rights and interests of the State of Queensland and the Cook Shire Council, to access, use, operate, maintain and control the following dedicated roads and the rights and interests of the public to use and access those roads:

(a) Areas totaling about 3,925 square metres contained within stations 3-10-5-6-17-16-3 and stations 4-A-6-5-4 as shown as road to be opened on Crown Plan 889845; and

(b) Lot B on Plan AP3164.

4. The rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld) and relevant regulations and conservation plans made under that Act, relating to the use and management of the Forbes Islands National Park, the Quoin Island National Park and the Piper Islands National Park.
   
5. The rights and interests of members of the public to access the Forbes Islands National Park, the Quoin Island National Park and the Piper Islands National Park for recreation purposes in accordance with the Nature Conservation Act 1992 (Qld) and relevant regulations made under that Act.
   
6. Subject to items 4 and 5, the rights and interests of the State of Queensland and any other person existing by reason of the force and operation of:

(a) the Nature Conservation Act 1992 (Qld) and relevant regulations and conservation plans made under that Act;

(b) the Fisheries Act 1994 (Qld) and relevant regulations, declarations and management plans made under that Act;

(c) the Marine Parks Act 2004 (Qld) and relevant regulations and zoning plans made under that Act; and

(d) the Coastal Protection and Management Act 1995 (Qld) and relevant regulations and management plans made under that Act.

7. The rights and interests granted by the State of Queensland pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, authorities and permissions pursuant to:
   

(a) the Nature Conservation Act 1992 (Qld) and relevant regulations and conservation plans made under that Act, including but not limited to the use and management of the Forbes Islands National Park, the Quoin Island National Park and the Piper Islands National Park;

(b) the Fisheries Act 1994 (Qld) and relevant regulations, declarations and management plans made under that Act;

(c) the Marine Parks Act 2004 (Qld) and relevant regulations and zoning plans made under that Act; and

(d) the Coastal Protection and Management Act 1995 (Qld) and relevant regulations and management plans made under that Act.

8. The rights and interests granted by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, statutory fishing rights or other statutory rights pursuant to:

(a) the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act; and

(b) any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area.

9. The rights and interests of the Great Barrier Reef Marine Park Authority and any other person existing by reason of the force and operation of:

(a) the Great Barrier Reef  Marine Park Act 1975 (Cth);

(b) the Great Barrier Reef Marine Park Regulations 1983 (Cth);

(c) the Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth); and

(d) the Great Barrier Reef Marine Park Zoning Plan 2003 (Cth).

10. The rights and interests of Australian Maritime Safety Authority:

(a) as the owner and operator of aid to navigation facilities within the Determination Area including the facility at Tannadice Rock at approximately latitude 12° 40.1000'S and longitude 143° 31.1998'E; and

(b) as a statutory authority exercising powers and functions under the Lighthouses Act 1911 (Cth).

11. The rights and interests existing pursuant to the Historic Shipwrecks Act 1976 (Cth) (and regulations made thereunder), including (without being limited to) restrictions relating to historic shipwrecks, historic relics and protected zones within the Determination Area, noting that historic shipwrecks within the Determination Area include (but are not necessarily limited to) the Morning Star at latitude 12° 25' 49.8"S and longitude 143° 25' 18.0012"E.
    
12. So far as confirmed pursuant to section 212(2) of the Native Title Act 1993 (Cth) and section 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this order, any existing rights of the public to access and enjoy the following places in the Determination Area:

(a) waterways;

(b) beds and banks or foreshores of waterways;

(c) coastal waters;

(d) beaches;

(e) stock routes; and

(f) areas that were public places at the end of 31 December 1993.

13. The rights and interests of members of the public arising under the common law, including but not limited to the following;

(a) the public right to fish; and

(b) the public right to navigate.

14. The rights under the international right of innocent passage.
    
15. The rights, interests, powers and functions of the Cook Shire Council as a Local Government under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters in its local government area.
    
16. Any other rights and interests:

(a) held by the State or Commonwealth; or

(b) existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD6016 of 1998

BETWEEN:

DEBORAH HOBSON, IVY HOBSON, LORRAINE CLARMONT, LUCY HOBSON, DONALD HOBSON AND ALBERT DOCTOR ON BEHALF OF THE KUUKU YA'U PEOPLE Applicant

AND:	STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, COOK SHIRE COUNCIL, LOCKHART RIVER ABORIGINAL SHIRE COUNCIL, AUSTRALIAN MARITIME SAFETY AUTHORITY, MICHAEL CLINCH AND ROBERT WILLIAM DUNN Respondents

JUDGE:	GREENWOOD J
DATE:	25 JUNE 2009
PLACE:	PORTLAND ROADS, CAPE YORK PENINSULA

REASONS FOR JUDGMENT

1. The Federal Court of Australia convenes here this morning, on country, at Portland Roads, Weymouth Bay, in Far North East Cape York to make, and explain the reasons for making, orders under s 87 of the Commonwealth Native Title Act 1993 (“the Act”) that take effect as a determination of the traditional native title rights and interests of the Kuuku Ya’u People in lands and waters over which they assert a continuous exercise of those traditional rights and interests by their people prior to and since sovereignty.
2. A determination of native title in Aboriginal people by orders of the Federal Court in the exercise of power conferred by the Native Title Act, is the expression, consistent with the scheme of the Act, of what the Chief Justice of Australia, Chief Justice French, has described as the “beneficial purpose” of the legislation to provide for the recognition and protection of native title, as set out in s 3 of the Act. That beneficial purpose rests on a declared “moral foundation” (Northern Territory v Alyawarr (2005) 145 FCR 442 at [63]) contained in the preamble to the Act as acknowledged by the High Court of Australia in Mabo v Queensland (No. 2) (1992) 175 CLR 1, that the common law of Australia recognises, a form of native title, that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands. When the Federal Court makes a determination of native title in Aboriginal people, it does so in recognition of traditional laws, customs, rights and interests subsisting in those people as part of the common law of Australia.
3. An order of the Federal Court of Australia made under the Native Title Act, recognising the traditional laws and customs of Aboriginal People, is an order made in the exercise of the judicial power of the Commonwealth in accordance with the Australian Constitution and in that sense reflects, importantly, an independent determination of national inclusion that binds not only the parties to the claim but is good against the whole world. Orders made determining native title in resolution of the application are therefore a critical instrument of title for the Kuuku Ya’u People, recognised by all Australians, and a form of title that may be asserted, as a matter of law, against anyone. That is why the Native Title Act requires the Court to be satisfied that the orders are “within power” as a matter of jurisdiction and “appear appropriate”.
4. For these reasons, it is important to say something about the source, origin and nature of the rights of the Kuuku Ya’u People; the application which is today resolved by this determination; and, the agreement reached by the parties which has led to the proposed consent orders.
5. The application is brought by Deborah Hobson, Ivy Hobson, Lorraine Clarmont, Lucy Hobson, Donald Hobson and Albert Doctor on behalf of the Kuuku Ya’u People over particular land and offshore waters north of Lockhart River on Cape York.
6. The application was first lodged with the National Native Title Tribunal on 4 July 1995 in relation to seas, reefs, islands and resources, from Olive River to the Great Barrier Reef and south to Nyllichii Point. Two further applications were filed on 7 April 1997 and 26 May 1998 over parts of Restoration and Forbes Islands and specific lots of land at Cape Weymouth. The three applications were consolidated in November 1999 and the Court granted leave to further amend the claims on 22 August 2000 and 20 March 2003. The consolidated amended application satisfied the registration test on 15 May 2003 and was entered on the Register of Claims. The application was notified by the Native Title Registrar to the relevant persons and entities as required by s 66 of the Act. The notification period under s 66 closed on 9 December 2003.
7. The parties that elected to be joined as respondents to the application are the Commonwealth of Australia, the State of Queensland, Australian Maritime Safety Authority, Cook Shire Council, Lockhart River Aboriginal Shire Council and fishing licence holders Michael Clinch and Robert William Dunn.
8. The application was further amended on 29 April 2009 with leave of the Court to reflect changes to the external offshore boundary of the claim area and the final composition of the claim group.
9. Consequent upon mediation of the application by the National Native Title Tribunal and regular reviews by the Court at directions hearings, the parties reached a final executed agreement between 28 May 2009 and 4 June 2009 on the terms of consent orders that might be made by the Court in resolution of the entire proceeding. The agreement, made in terms of proposed orders for the purpose of s 87(2) of the Act, was filed in the Court as required by s 87(1)(b) on 5 June 2009. Consequent upon the mediation, three Indigenous Land Use Agreements were entered into between, variously, some of the parties to this proceeding and non-parties. Two of those agreements were executed on 29 May 2009 and one on 17 April 2009. They are identified fully by Schedule 6 to the proposed orders.
10. Section 87 as it applies to this application provides that if after 9 December 2003 the parties reach agreement on the terms of a proposed consent order in resolution of the proceeding (the agreement being filed in the Court) and the Court is satisfied that such orders are within power, the Court may make orders in or consistent with those terms, if it appears to the Court to be appropriate to do so. As to the question of power, s 13(1) of the Act provides that an application for a determination of native title may be made to the Court under Part 3 in relation to an area for which there is no approved determination of native title. The Act encourages parties to resolve such applications by negotiation, mediation and ultimately agreement rather than contested adversarial proceedings. Section 87 confers power to make orders consistent with an inter-parties agreement without holding a hearing, if thought appropriate by the Court. I have conducted directions reviews of this application and I am familiar with it. I have read the terms of the agreed proposed orders together with supporting material. I am satisfied that the proposed orders are within power.
11. Sections 87(1) and 87(2) provide that the Court may make orders in terms of the agreement if it appears to it to be appropriate to do so. Because such orders necessarily and critically provide for a determination of native title, the order must, by operation of s 94A of the Act, set out details of the matters addressed by s 225 of the Act. If the agreement for the proposed orders did not address the elements of s 225 of the Act, it would be difficult to conclude that the orders were appropriate. This agreement proposes orders that address each of the elements of s 225 of the Act which must be read together with s 223 of the Act which explains the meaning the Act attributes to the terms native title and native title rights and interests. It is not necessary to record in these reasons the well-known elements of ss 223 and 225 of the Act.
12. The reference in s 87 of the Act to whether the proposed orders “appear appropriate” to the Court suggests that the Court is to be satisfied of at least facial appearance, or put another way, a prima facie impression, that the proposed orders have a proper basis. Four important things need to be kept in mind when determining whether proposed orders appear appropriate. First, the Act encourages the resolution of applications by mediation, negotiation and ultimately agreement without the need for a hearing and the assessment of evidence and fact-finding by the Court. As Chief Justice French observed on 9 July 2008, before assuming that office, (Lifting the Burden of Native Title – Some Modest Proposals for Improvement), the Court will not lightly second-guess the agreement the parties have reached by requiring formal proof of each element of a claim required by the Act or formal proof of the content of the subject matter of each proposition contained in the proposed orders which in turn must necessarily address the elements of ss 223 and 225 of the Act. Otherwise, the applicants would be burdened with, in effect, a subset of a trial in establishing the appropriateness of the consensual orders.
13. Secondly, the Court will be concerned to understand and place emphasis upon whether the agreement is genuine and freely made on an informed basis by all parties, represented by experienced independent lawyers and in the case of a State party, whether appropriate consideration has been given to the content of the applicant’s claim (see, Munn (for and on behalf of the Gungari People) v Queensland (2001) 115 FCR 109, per Emmett J; Smith & Ors v State of Western Australia (2000) 104 FCR 494 per Madgwick J at [28] to [33]).
14. Thirdly, a State Government with access to its own State archives and the experience of having engaged with Aboriginal communities across the State over a long time, is likely to be familiar with the historical arrangements within and administration of many communities, the nature of the land interests, in a broad sense at least, affecting those communities and the source of records and possibly oral evidence given in other proceedings, that might usefully inform aspects of a proposed agreement as to native title rights subsisting in Aboriginal people.
15. Fourthly, in light of these three earlier considerations, it is not, in my view, necessary for the applicant claimant group to file a substantial body of evidence that would otherwise be required to satisfy the Court of the merits of a claim as though findings of fact were required to be made. Nevertheless, as Chief Justice French has also observed, it may be necessary to provide the Court with some evidence so the Court can see that the agreement is “rooted in reality”. In that context, community discussion has taken place recently about the utility of an agreed statement of facts in relation to the elements of a claim or alternatively (or as well as), the preparation of a focused synopsis of the key matters going to the elements of a claim in order to assist the Court in discharging the statutory obligation of being satisfied that the proposed orders, binding as against the whole world, “appear appropriate”. A focused synopsis of the primary material is helpful to the Court in determining that prima facie impression. The Native Title Amendment Bill 2009 currently before the Senate contains provisions further emphasising the importance of mediation of claims. The Bill broadens the scope of agreements that might be approved by the Federal Court, provides for an agreed statement of facts and makes changes to the application of aspects of the laws of evidence to determination applications made under the Native Title Act.
16. In this application, I have had the benefit of reading a report prepared by David Alan Thompson and Athol Kennedy Chase entitled Overview of Connection Materials in relation to connection and continuity of connection by ancestors of the common law claimants and the claimants themselves. I have also read the affidavits of David Thompson and Athol Chase deposing to their professional anthropological experience and, more particularly, their individual work with the Kuuku Ya’u People. David Thompson has worked in the region and has also worked with members of the Lockhart River Aboriginal Community since 1969. Athol Chase commenced residence and anthropological field work at Lockhart River in 1971. Their work relates to connection with and occupation by the Kuuku Ya’u People of the land and waters of the claim area, the early society at sovereignty, the normative laws and customs acknowledged and observed by the society at and since sovereignty and the genealogical record.
17. It is not necessary to detail the work of David Thompson and Athol Chase in these reasons or other extensive anthropological work which has informed the reports and the agreement between the parties. However, two events ought to be mentioned as they demonstrate foundation features of the claim of the Kuuku Ya’u People.
18. On 28 April 1789, Captain William Bligh and 17 crewmen were placed in an open launch after mutineers took over the ship Bounty north of the “Tonga Trench” in the Pacific Ocean. Bligh navigated the launch across more than 4,000 nautical miles to what is now East Timor. Bligh travelled west with the currents and ultimately reached land, on mainland Australia, at Cape Direction 20 nautical miles south of Restoration Island in the claim area. He then navigated north across Lloyd Bay to Restoration Island and made camp there in May 1789. He observed and recorded from Restoration Island, groups of Aboriginal people on the mainland (probably a community of 50 or more people) exhibiting common ceremonial markings, common articles and collective or organised behaviour. Bligh noted clear signs of visitation to Restoration Island and shelter structures erected there.
19. The second event occurred on 10 November 1848 when the Kennedy expedition arrived at the mouth of the Pascoe River. The botanist Carron and nine men camped at the river mouth for six weeks before the arrival of the ship, Ariel, and engaged with the Aboriginal community in ways which involved exchanges of fish, other food, items and a range of other regular contacts. Carron made a detailed record of these exchanges and encounters. The records speak to the society, its organisation, structure and customs evident at that time within claim area. These observations are consistent with Bligh’s observations and they represent very early evidence of organised connection with place. The Overview document draws upon the anthropological and linguistic work of Donald Thomson with the Kuuku Ya’u People in two field trips to the region of the claim area in 1928 and 1929 and the work of David Thompson and Athol Chase across the period of their own work and engagement with the Kuuku Ya’u People. The Overview document addresses extensive other reported evidence of contact, continuity of occupation and the content of normative laws and customs practised by the Kuuku Ya’u People, including the accounts of Robert Logan, Walter Roth and the seminal work of Donald Thomson. The Overview document deals with the historical observance of those laws and customs and the analytical anthropological methodology adopted by Thompson and Chase in formulating their opinions.
20. The Commonwealth of Australia and the State of Queensland were provided with three extensive reports in assessing whether to enter into the agreement, namely, Report on the Traditional Affiliations and Continuity of Connection of the Applicants for Native Title Determination over the Kuuku Ya’u Islands and Portland Roads Region (46 pages), David Thompson, March 1999; Supplementary Connection Report for the Kuuku Ya’u Native Title Claim (142 pages, Athol Chase and David Thompson, November 2004; and Summary Report for the Kuuku Ya’u Native Title Claim: Kuuku Ya’u Islands and Portland Roads region (34 pages), David Thompson and Athol Chase, February 2006) The Overview document also draws upon research, information and evidence gathered in relation to related land claims under the Aboriginal Land Act 1991 (Qld). Each of the parties to the agreement is represented by independent legal advisers experienced in the conduct of proceedings under the Native Title Act 1993.
21. I am satisfied that the elements of the claim in terms of the Act have been addressed in the material referred to in [20], the subject of the Overview. I am satisfied the material has been made available to the Commonwealth and the State and the material has been taken into account, in particular, by the State of Queensland in evaluating the claims of the Kuuku Ya’u People. I am also satisfied that the parties have reached an informed agreement, with the assistance of independent experienced legal advisers. I am also satisfied that the proposed orders appear appropriate in the prima facie sense mentioned earlier as the Overview document, supported by the affidavits of Thompson and Chase, show that the Kuuku Ya’u People are descended from a society of Aboriginal people who were in occupation of the land and waters of the Determination Area at sovereignty and who formed a society united by their acknowledgement and observance of a normative body of traditional laws, customs and beliefs. Through their continued acknowledgement and observance of these normative laws and customs, members of the Kuuku Ya’u People have, since sovereignty, maintained a connection to the Determination Area. The content of those native title rights and interests which derive from the practice of traditional laws and customs have been identified by Thompson and Chase. The agreement provides for consent orders entirely consistent with the anthropological material and the opinions of Thompson and Chase.
22. I am satisfied the proposed orders address each of the elements of s 225 of the Act. Thus, I am satisfied that the orders appear appropriate for the purposes of s 87 of the Act.

The prescribed body corporate

23. Ms Ann Elizabeth Daniel, the Principal Legal Officer for the Cape York Land Council Aboriginal Corporation (“CYLC”) filed an affidavit on 20 May 2009 deposing to these things. During 2007, 2008 and 2009 the CYLC convened meetings of the claim group to provide advice and information concerning the formation of a prescribed body corporate to hold native title on trust for the Kuuku Ya’u People. A draft rule book for a prescribed body corporate was prepared and discussed with the claim group and a final draft was approved and authorised by them on 23 and 24 February 2009. The name “Northern Kuuku Ya’u Kanthanampu Aboriginal Corporation” (“the Corporation”) was chosen by the claim group. The claim group instructed CYLC to apply on their behalf to the Office of the Registrar of Indigenous Corporations for registration of the Corporation. The Corporation was registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 on 19 March 2009.
24. At a meeting on 23 and 24 February 2009, the claim group nominated the Corporation to act as a Prescribed Body Corporate (“PBC”) to hold the native title rights and interests of the Kuuku Ya’u People on trust for them and to perform the functions required by s 57(1) of the Act. At the first general meeting of the Corporation held on 15 April 2009 the Corporation consented to its nomination as PBC to hold native title on trust for the Kuuku Ya’u People. A copy of the Notice of Nomination and Consent signed by members of the claim group and the Corporation has been filed in the Court as required by s 56 of the Act.
25. A copy of the Rule Book for the Corporation has also been filed in the Court. Rules 3.1(a), (b) and (c) are in these terms:

3. Objectives

3.1 The objectives of the corporation are:

(a) to act as a trustee prescribed body corporate in respect of any native title determination under s 56 of the Native Title Act [1993] (“NTA”);

(b) to fulfil the role and functions of a prescribed body corporate in accordance with the Act; and

(c) to hold and manage the native title rights and interests of the common law holders of those rights and interests.

26. In order to be eligible for membership of the Corporation, a person must be an individual who, by rule 5.2.2(b) is descended from one or more of the Kuuku Ya’u apical ancestors listed in Schedule 2 to the Rule Book. The apical ancestors listed in Schedule 2 are the apical ancestors listed in Schedule 1 to the proposed orders. Rule 5.2.2(c) also provides that a person recruited by adoption in accordance with the traditional laws and customs of the Kuuku Ya’u People is also eligible for membership of the Corporation.
27. Having regard to the matters at [23] to [26], I am satisfied that the Corporation is a PBC for the purposes of s 56(2) and (3) of the Act and Regulation 4(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (“the Regulations”), and that Regulation 4(2) of the Regulations is satisfied.

Conclusion

28. For the reasons I have indicated, I make the orders and determination sought by the parties. These orders give recognition within the Australian legal system, as part of the common law of Australia, recognised by all Australians and Australian institutions under the rule of law, to the traditional rights and interests of the Kuuku Ya’u People born out of legends and stories honoured, and customs practised, by the ancestors of the claimants and observed and practised by the descendants of those ancestors continuously over time.
29. This is a proud day for the Kuuku Ya’u People.

I will now present copies of the orders and determination of the Court to representatives of the Kuuku Ya’u People.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated: 25 June 2009

Counsel for the Applicant:	Ms Susan Phillips
Solicitor for the Applicant:	Cape York Land Council Aboriginal Corporation
Solicitor for the State of Queensland:	Ms B Wrafter, Crown Law Office
Solicitor for the Commonwealth of Australia:	Mr B Powell, Office of the Australian Government Solicitor
Solicitor for the Cook Shire Council:	Mr A Kerr, Preston Law
Solicitor for Lockhart River Aboriginal Shire Council:	Mr M Neal, p&e Law
Solicitor for Australian Maritime Safety Authority:	Ms M Dean, Solicitor
Solicitor for Michael Clinch and Robert William Dunn:	Mr P Gore, Gore & Associates

Date of Hearing:	25 June 2009
Date of Judgment:	25 June 2009