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Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789 (29 July 2009)

Last Updated: 3 August 2009

FEDERAL COURT OF AUSTRALIA

Wik and Wik Way Native Title Claim Group v State of Queensland

[2009] FCA 789

NATIVE TITLE – consideration of an application for orders supported by an agreement for a consent determination of native title rights and interests in the land and waters of the Determination Area – consideration of s 87 of the Native Title Act 1993 (Cth) – consideration of whether proposed orders appear “appropriate” to the Court and whether orders ought to be made as sought determining native title rights and interests in the Wik and Wik Way Peoples in land and waters broadly described as the land and waters on the western side of Cape York Peninsula landward of the high water mark at mean spring tide of the sea of the Gulf of Carpentaria, bounded to the north by the Embley River and to the south by the Edward River and extending in the east to the upper reaches of the watercourses that drain into the Gulf of Carpentaria

Native Title Act 1993 (Cth), ss 13, 61, 57, 87, 94A, 223, 225
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth, Reg 4

Wik Peoples v State of Queensland [2000] FCA 1443 – cited
Wik Peoples v State of Queensland [2004] FCA 1306 – cited
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 - cited

Other Material

“Native Title – A Constitutional Shift?”, University of Melbourne Law School, JD Lecture Series, Chief Justice French, 24 March 2009

ANTHONY KERINDUN, JANINE CHEVATHUN AND ALISON WOOLLA AS THE APPLICANT ON THEIR OWN BEHALF AND FOR AND ON BEHALF OF THE MEMBERS OF THE WIK AND WIK WAY NATIVE TITLE CLAIM GROUP v STATE OF QUEENSLAND, RIO TINTO ALUMINIUM LIMITED (FORMERLY COMALCO ALUMINIUM LIMITED), PORTS CORPORATION OF QUEENSLAND, COOK SHIRE COUNCIL, ALBATROSS HIRE PTY LTD T/AS WEIPA HOUSEBOATS, A NUMBER OF COMMERCIAL FISHING AUTHORITY HOLDERS
QUD 6029 of 2001

GREENWOOD J
29 JULY 2009
AURUKUN, CAPE YORK PENINSULA

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6029 of 2001
GENERAL DIVISION

BETWEEN:

ANTHONY KERINDUN, JANINE CHEVATHUN AND ALISON WOOLLA AS THE APPLICANT ON THEIR OWN BEHALF AND FOR AND ON BEHALF OF THE MEMBERS OF THE WIK AND WIK WAY NATIVE TITLE CLAIM GROUP
Applicant

AND:

STATE OF QUEENSLAND, RIO TINTO ALUMINIUM LIMITED (FORMERLY COMALCO ALUMINIUM LIMITED), PORTS CORPORATION OF QUEENSLAND, COOK SHIRE COUNCIL, ALBATROSS HIRE PTY LTD T/AS WEIPA HOUSEBOATS, A NUMBER OF COMMERCIAL FISHING AUTHORITY HOLDERS
Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	29 JULY 2009
WHERE MADE:	AURUKUN, CAPE YORK PENINSULA

THE COURT NOTES THAT:

The parties to the Application have reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area.
The Applicant, the State of Queensland and Rio Tinto Aluminium Limited (formerly Comalco Aluminium Limited) are parties to an agreement known as the Western Cape Communities Co-existence Agreement dated 14 March 2001 ("the WCCCA") which was registered as the Comalco ILUA on the Register of Indigenous Land Use Agreements on 24 August 2001, an extract of the relevant parts of which is annexed to this Determination and marked "Schedule Two".

Pursuant to the terms of the WCCCA, the Applicant has brought Native Title Determination Application No. QUD6029/01 ("the Application") which relates to an area of land and waters the subject of the proposed determination.

The traditional laws acknowledged and traditional customs observed by the Wik and Wik Way Peoples includes the authority as between Aboriginal people to:

(a) resolve disputes about who is or who is not a Wik person or a Wik Way person;

(b) determine as between Wik and Wik Way Peoples what are the particular native title rights and interests that are held by particular Wik and Wik Way Peoples in relation to particular parts of the Determination Area;

(c) exclude particular Wik and Wik Way Peoples from the exercise of particular native title rights and interests in relation to particular parts of the Determination Area; and

(d) resolve disputes between Aboriginal people concerning native title rights and interests in relation to the Determination Area, with the assistance of native title holders of adjoining areas where such assistance is necessary.

AND BEING SATISFIED THAT a determination of native title in the terms that follow would be within the power of the Court and, it appearing to the Court appropriate to do so, the Court, pursuant to section 87 of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT DETERMINES BY CONSENT THAT:

Native title exists in relation to the Determination Area.
The native title is held by the Wik and Wik Way Peoples ("the Native Title Holders") in accordance with the traditional laws acknowledged and traditional customs observed by them as common law holders.
The nature and extent of native title rights and interests in relation to the Determination Area, other than in relation to Water and subject to paragraphs 5, 6 and 7, are non-exclusive rights to:

(a) live on the Determination Area, to camp, erect shelters and other structures;

(b) access, be present on, move about in and on and use the Determination Area;

(c) take and use the Natural Resources of the Determination Area for the purpose of satisfying the personal, domestic or non-commercial communal needs of the Native Title Holders;

(d) maintain and protect from harm by lawful means sites and places of significance in the Determination Area;

(e) conduct social, religious, cultural, spiritual and ceremonial activities on the Determination Area;

(f) hunt and gather in, on and from the Determination Area for the purpose of satisfying the personal, domestic or non-commercial communal needs of the Native Title Holders,

and the right to inherit and succeed to the native title rights and interests.

Subject to paragraphs 5, 6 and 7, the nature and extent of native title rights and interests in relation to Water are non-exclusive rights to:

(a) hunt and fish in or on, and gather from Water for the purpose of satisfying the personal, domestic or non-commercial communal needs of the Native Title Holders; and

(b) take, use and enjoy the Water for the purpose of satisfying the personal, domestic or non-commercial communal needs of the Native Title Holders.

There is no native title in Minerals and Petroleum.
The native title is subject to and exercisable in accordance with:

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

(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

Notwithstanding anything in paragraphs 3, 4, 5 and 6, the native title rights and interests:

(a) do not confer possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others; and

(b) do not extend to a right to control access to or a right to control the use of the Determination Area.

The nature and extent of any other rights and interests in relation to the Determination Area are:

(a) the rights and interests of Rio Tinto Aluminium Limited under:

(i) the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) ("the Comalco Act") and the Commonwealth Aluminium Corporation Pty Limited Agreement (which is given statutory force by the Comalco Act) ("the Comalco Agreement") to mine and/or perform other activities on the Determination Area, including the Comalco Interests and the rights to perform the Comalco Activities; and

(ii) the WCCCA between it, representatives of the Native Title Holders and other parties;

(iii) Mining Lease No. 7024;

(iv) Mining Lease No. 6024; and

(b) the following rights and interests in relation to the Determination Area as they exist at the date of this determination:

(i) any rights and interests of the holder of an authority issued under the Fisheries Act 1994 (Qld) that authorises a commercial fishing operation in the waters of the Determination Area;

(ii) the rights and interests of the Cook Shire Council under its local government jurisdiction and as an entity exercising statutory powers in respect of land and waters within the Determination Area including its interests under an Indigenous Land Use Agreement dated 27 April 2009 between the Native Title Holders and Cook Shire Council;

(iii) the rights and interests of the Napranum Aboriginal Shire Council under its local government jurisdiction and as an entity exercising statutory powers in respect of land and waters within the Determination Area;

(iv) the rights and interests of the North Queensland Bulk Ports Corporation Limited as an entity exercising statutory powers in respect of that part of the land and waters of the Determination Area within the limits of the Port of Weipa;

(v) any rights of the public:

(A) whether granted by Rio Tinto Aluminium Limited or otherwise, to travel through or across the Determination Area;

(B) arising under the common law to fish and navigate in any Tidal Navigable River or Tidal Water of the Determination Area;

(vi) any other rights or interests held by the Crown or by reason of the force and operation of Laws of the Commonwealth of Australia and the State of Queensland.

The relationship between the native title rights and interests in paragraphs 3 and 4 and the other rights and interests in relation to the Determination Area in paragraph 8 is that:

(a) in relation to the rights and interests of Rio Tinto Aluminium Limited in paragraph 8(a) - on the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, the grant of Special Bauxite Mining Lease 1 or the registration of the WCCCA, the Comalco Act, the Comalco Agreement, the conferral of the Comalco Interests, the performance of the Comalco Activities or the WCCCA, whether done before or after the date of this Determination, prevail over the native title rights and interests to the extent of any inconsistency;

(b) in relation to the other rights and interests in sub-paragraphs 8(b)(i), (ii), (iii), (iv) and (vi):

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

(ii) for avoidance of doubt, any activity that is required or permitted by or held under, and done in accordance with, the other rights and interests or any activity that is associated with or incidental to, such an activity, prevails over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of section 24JA of the Native Title Act 1993 (Cth), does not extinguish them;

(c) in relation to the other rights and interests in sub-paragraph 8(b)(v), those rights and interests co-exist with the native title rights and interests and, to the extent of any inconsistency with the native title rights and interests, will prevail over the native title rights and interests but will not extinguish them; and

(d) the native title is subject to extinguishment by:

(i) the lawful powers of the Commonwealth and of the State of Queensland; and/or

(ii) the lawful grant or creation of interests pursuant to the Laws of the Commonwealth and the State of Queensland.

If a word or expression is not defined in this paragraph, but is defined in the Native Title Act 1993 (Cth) then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition:

“Animal” and “Plant” have the meanings given to them in the Nature Conservation Act 1992 (Qld);

"Comalco Activities" has the meaning given to it in the WCCCA;

"Comalco Interests" has the meaning given to it in the WCCCA;

"Determination Area" means the land and waters within the area described in Annexure A to Schedule One and shown on the plan in Annexure B to Schedule One, except that to the extent of any inconsistency between the written description and the plan, the written description prevails;

“Fish” has the meaning given to it in the Fisheries Act 1994 (Qld);

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

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

“Minerals” has the meaning given to it in the Mineral Resources Act 1989 (Qld);

“Natural Resources” means:

(a) any Plant and Animal, including Fish and bird life found on, or in, the lands and waters of the Determination Area from time to time;

(b) flints, clays, ochres, stones and soils found on or below the surface of the Determination Area,

but does not include:

“Petroleum” has the meaning given to it in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

“Tidal Navigable River” has the meaning given to it in the Land Act 1994 (Qld);

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

“Water” means water as defined in the Water Act 2000 (Qld) and Tidal Water.

AND THE COURT ORDERS

Native title is not to be held in trust.
Ngan Aak-Kunch Aboriginal Corporation RNTBC (formerly Ngan Aak Kunch Aboriginal Corporation) is to:

(a) be the prescribed body corporate for the purposes of s.57(2) of the Native Title Act 1993 (Cth); and

(b) perform the functions mentioned in s.57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

The determination of native title is to take effect on the registration of the agreement referred to in sub-paragraph 8(b)(ii) on the Register of Indigenous Land Use Agreements.
In the event that the agreement referred to in sub-paragraph 8(b)(ii) is not registered on the Register of Indigenous Land Use Agreements within six 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.
There be no order as to costs.

DEPUTY DISTRICT REGISTRAR

Date Entered:

Schedule One

(Determination Area)

The "Determination Area" means the land and waters within the area described in Annexure A to Schedule One and shown on the plan in Annexure B to Schedule One, except that to the extent of any inconsistency between the written description and the plan, the written description prevails.

Annexure A to Schedule One

(Description of the Determination Area)

Area 1 (shown as Lot 1 on the plan in Annexure B to Schedule One)

Unless otherwise stated, monument numbers referred to in the following description are derived from Plan MP41159 that is registered in the Department of Environment and Resource Management. The description is derived from the following plans which are available from the Department of Environment and Resource Management: MP31643, MP41159, SP120446 and SP135863.

Commencing at monument 047 P₁ of ML 7024, proceed along the mining lease boundary through monuments 046 O₁, 198, 199 and then along the boundary of ML 7024 towards 045 L₁ until the boundary intersects with the High Water Mark; then generally north westerly and generally north easterly along that High Water Mark to its intersection with the ML 7024 boundary defined by station 038 DB and monument 037 DA, proceed along the boundary of ML 7024 through monuments 037 DA, 036 D₁ and along the boundary of ML 7024 towards 035 C₁ until it intersects with the High Water Mark; then generally north easterly along the High Water Mark until it intersects with the boundary of ML 7024 defined by monuments 036 D₁ and 035 C₁ then along the boundary of ML7024 through monument 035 C₁and towards 034 B₁ until it intersects with the High Water Mark then generally north easterly along the High Water Mark until it intersects with the boundary of ML 7024 defined by monuments 035 C₁ and 034 B₁ then along the boundary of ML 7024 through monuments 034 B₁, 224, 223, 058 AR, 057 AQ, 056 AP, 055 AU, 226 (defined on Plan MP31643), then along the boundary of ML 6024 towards monument 225 (defined on MP31643) until the intersection of High Water Mark then along the High Water Mark in a general north westerly direction around Lot 12 on Plan SP135863 until the intersection of the boundary of Lot 14 on Plan SP120446 defined by monuments 056 AP and 083 AO, then north easterly along the eastern boundary of that Lot 14 on Plan SP120446 towards monument 083 AO to the centreline of Embley River; then generally south easterly along the centreline of the Embley River to the boundary of ML 7024 defined by monuments 216 and 105, then along the boundary of ML 7024 through monuments 105, 104, 106, 107, 217, 002 B₃, 001 C₃, 053 AW, 220, 221, 222, 052 D₃, 051 U₁, 050 T_1, 049 R₁, 048 Q₁ back to the point of commencement.

Area 2 (shown as Lot 2 on the plan in Annexure B to Schedule One)

Unless otherwise stated, monument numbers referred to in the following description are derived from Plan SP120446 which is registered in the Department of Environment and Resource Management. The description is derived from the following plans which are available from the Department of Environment and Resource Management: SP120446 and SC211.

Commencing at the point where High Water Mark intersects the boundary of Lot 14 on Plan SP120446 which is located generally northwest of monument AR along the boundary to monument AS proceed along the High Water Mark around Roberts Creek to the intersection of the boundary of Lot 14 on Plan SP120446 defined by monuments AS and AR, then follow the boundary of Lot 14 on Plan SP120446 back to the point of commencement.

Annexure B to Schedule One

(Plan of the Determination Area)

Schedule Two
(Extracts of the Western Cape Communities Co-existence Agreement
dated 14 March 2001)

Extracts of the Western Cape Communities Co-existence Agreement relevant to this Determination are as follows:

"1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

When used in this Agreement, including the Recitals, the following terms will have the following meanings unless the subject or the context otherwise requires:

Term	Meaning
	...
Additional Native Title Parties	The applicants in Non-conforming Applications or Conforming Applications in respect of any part of the ILUA Area who as at the Commencement Date have not signed this Agreement.
	...
Associate	An employee, servant, agent or contractor of, or person providing or receiving goods or services to or from, Comalco, a Related Body Corporate of Comalco, a person having any right or interest in relation to any Comalco Interest that is derived from, or granted by, Comalco (for example, a sublessee of part of ML 7024), or a person exercising rights with the permission or authority of Comalco and includes a Comalco Contractor.
Aurukun Community	Aboriginal people who are ordinarily resident in or around the Shire of Aurukun.
	...
Claim	In relation to any person, a demand, claim, action, proceeding, damage, loss, cost, expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Claim Area	The land the subject of a Conforming Application.
Comalco	Comalco Aluminium Limited (ACN 009 679 127).
Comalco Act	The Commonwealth Aluminium Corporation Pty. Limited Agreement Act 1957 (Qld)
Comalco Activities	Any activity or operation authorised, reasonably contemplated, permitted or required by the Comalco Interests and includes the Weipa Operations.
Comalco Agreement	The agreement between Queensland and Comalco referred to in s2 of the Comalco Act, as varied from time to time pursuant to s4 of that Act.
	...
Comalco Interests	Each of the following as they relate to the ILUA Area: (a) the Comalco Act; (b) the Comalco Agreement; (c) the Mining Leases;
	(d) various property interests held by Comalco now or, as of right pursuant to any other interest listed in paragraphs (a)-(c) and (e)-(l) of this definition, in the future (for example, SPMPLs) located inside the boundaries of ML 7024; (e) land within the ILUA Area leased by Comalco from the Ports Corporation;
	(f) any area of land within the ILUA Area over which Comalco has any continuing right or interest and which land has been excised from ML 7024 (since its grant), including Other Interests;
	(g) any area of land (not subject to a Mining Lease) on which Comalco or an Associate has a right to place plant, facilities, infrastructure or property in connection with the Weipa Operations (for example, the wharves and related structures at Lorim Point, Humbug Point and Evans Landing); (h) any past act (as the term is defined in the NTA), or any Pre-Existing Right-Based Act the basis for which is the Comalco Act or the Comalco Agreement or any other Comalco Interest and which is conferred on Comalco;
	(i) any right of Comalco under the Comalco Act or the Comalco Agreement to obtain a further right or interest; (j) any right or interest of Comalco under any law in connection with any other Comalco Interest;
	(k) any other right or interest that Comalco is entitled to exercise, or have granted to it, in accordance with or as permitted by this Agreement; and (l) any right of renewal, extension, regrant or replacement of the Comalco Interests, and the renewals, extensions, regrants and replacements so obtained.
	...
Communities	Each of the following: (a) the signatories to this Agreement other than Comalco, Queensland and CYLC; (b) Possible Native Title Holders (including the Native Title Parties); (c) Traditional Owners;
	(d) members of the following Aboriginal peoples, traditional owner groups, associations and communities (which are believed to comprise all the Aboriginal communities with traditional or historic connections to lands within the ILUA Area) and Aboriginal communities in the vicinity of such lands:
	(i) the Aurukun Community; (ii) the Mapoon Community; (ii) the Napranum Community; and (iii) the New Mapoon Community; and
	(e) all other Aboriginal persons who ordinarily reside in and around the land the subject of the Mining Leases.
Conforming Application	A claimant application made or to be made pursuant to this Agreement by a Native Title Party or other applicants on behalf of a Traditional Owner Group for a Model Determination to part of the ILUA Area and certified by CYLC pursuant to s203BE of the NTA, a proforma for which appears as Schedule 13.
	...
CYLC	Any entity that is determined to be a representative Aboriginal body under the NTA for any part, or all, of the ILUA Area, which at the Commencement Date is Cape York Land Council Aboriginal Corporation.
	...

Designated Minerals	Bauxite and kaolin and does not include minerals that are subsequently designated pursuant to clause 1 of the Comalco Agreement.
	...
Hindering Action	An act or omission of a Traditional Owner Group or a Traditional Owner or any person on their behalf which causes or contributes to, directly or indirectly, the cessation of the registration of this Agreement or the non-registration of this Agreement (whichever is relevant).

	...
ILUA	An indigenous land use agreement (area agreement) under subdivision C, division 3 of part 2 of the NTA to which the Native Title Parties are parties as registered native title claimants, applicants or proposed applicants in relation to areas totalling the ILUA Area, but a reference to a separate ILUA is taken to be a reference to such an agreement to which the Native Title Parties are the registered native title claimants, applicants or proposed applicants to the "Claim Area or such other area within the ILUA Area determined by Comalco" as referred to in clause 2.5.1.
ILUA Area	The land within the area shown on the map in Attachment 1, subject to the area being decreased under clauses 2.5 or 5.5.

ILUA Area B

The area marked as area B in the plan of the ILUA Area.

	...

	...
Mining Leases	ML 6024 (formerly ML 3), ML 7024, any other mining lease (or lease that is ancillary to mining) granted to Comalco in accordance with the Comalco Act and the Comalco Agreement and any renewal, extension, regrant or replacement of any of them within the ILUA Area.
Model Determination	A native title determination in favour of a Native Title Party in the terms of the draft determination set out in Schedule 1.
	...
Native Title Application	An application, claim or proceedings in relation to native title (including any application claiming native title or seeking a native title determination), whether under the NTA or otherwise.
Native Title Parties	Those Possible Native Title Holders who: (a) are authorised, in accordance with s251A of the NTA, by the Possible Native Title Holders in each of the Traditional Owner Groups to make and sign this Agreement as an ILUA on behalf of each of the Traditional Owner Groups; (b) pursuant to obligations contained in this Agreement: (i) either are or will be the applicants in Conforming Applications; or (ii) must endeavour to procure other applicants to amend their Non-conforming Applications to render them Conforming Applications; and
	(c) have signed this Agreement on the Commencement Date namely: (i) the current registered native title claimants; and (ii) authorised signatories for each Traditional Owner Group, being those persons named in Schedule 16; and (d) from their respective dates of signing, those Additional Native Title Parties who sign this Agreement pursuant to clause 2.4.5.
	...
New SPMPL	Any SPMPL granted or purported to be granted, on or after 23 December 1996, or to be granted in the future, for any land within the Weipa Township.
	...

Non-conforming Application	A claimant application which is: (a) made on behalf of a Traditional Owner Group; (b) not a Conforming Application; and (c) made before the registration of this Agreement.

NTA	Native Title Act 1993 (Cth).
Other Interests	Any SPMPL granted for any land within the Weipa Township and any title into which it may have been converted, whether held by Comalco or not.
	...
Parties	Comalco, the State of Queensland, CYLC and each other person signing this Agreement, every member of the Communities and all persons to whom s24EA(1)(b) of the NTA applies.
	...
Ports Corporation	The Ports Corporation of Queensland.
Possible Native Title Holders	All persons who hold or may hold native title in the ILUA Area.
Pre-Existing Right-Based Act	Has the meaning in s24IB of the NTA, and to the extent they are not covered by that definition, includes the acts under the Comalco Act or the Comalco Agreement as they relate to the ILUA Area which are listed in Schedule 12.
	...
Procedural Requirements	The procedural rights (as that term is defined in s253 of the NTA) set out in s241D of the NTA but excluding those relating to compensation.
	...
SBML 1	Special Bauxite Mining Lease 1 granted pursuant to the Comalco Act and the Comalco Agreement .
Short Term Non-registration Event	Where there has been a Hindering Action relating to the non-registration of this Agreement and this Agreement has not been registered within 12 months from the Commencement Date.
	...
SPMPL	A Special Perpetual Mining Purposes Lease granted or to be granted pursuant to clause 27 of the Comalco Agreement.
	...
Traditional Owner Groups	The native title claim groups of the ILUA Area on whose behalf Conforming Applications have been made or are required to be made pursuant to the obligations in the Agreement, namely: (a) the Alngith People; (b) the Anathangayth People; (c) the Ankamuthi People; (d) the Peppan People; (e) the Taepadhighi People; (f) the Thanikwithi People; (g) the Tjungundji People; (h) the Warranggu People; (i) the Wathayn People; (j) the Wik and Wik-Way Peoples; and (k) the Yupungathi People.
Trustee	The trustee of the WCCT.
	...
Weipa Operations	The activities and operations carried on and things done, from time to time, by Comalco or an Associate:
	(a) within the ILUA Area pursuant to or in connection with any of the Comalco Interests; or
	(b) outside the ILUA Area, but which relate to the matters referred to in (a) including shipping cargo and minerals to and from the ILUA Area and use of the Port of Weipa or any other port within the ILUA Area and shipping channels.
	...

1.2 Interpretation

In this Agreement, including the Recitals, except to the extent that the subject or the context otherwise requires:

1.2.1 the following terms have the meanings respectively assigned to them in the NTA:

1.2.1.1 applicant;

1.2.1.2 claimant application;

1.2.1.3 native title claim group;

1.2.1.4 registered native title claimant;

1.2.1.5 representative body;

1.2.1.6 native title;

1.2.1.7 native title group;

1.2.1.8 native title holder;

1.2.1.9 native title rights and interests; and

1.2.1.10 for the purposes of any provisions in this Agreement concerning native title or native title rights and interests:

1.2.1.10.1 land; and

1.2.1.10.2 waters.

1.2.2 a reference to Aborigines, Aboriginal People or Aboriginals is a reference to Aboriginal peoples as defined in s253 of the NTA;

1.2.3 reference to any legislation or to any provision of any legislation includes any modification or re-enactment of, or any legislative provision substituted for, and all legislation and statutory instruments issued under, such legislation or such provision and includes the corresponding legislation in such other State or Territory of the Commonwealth of Australia as may be relevant from time to time;

1.2.4 words (including words defined in this Agreement) denoting the singular number include the plural and vice versa;

1.2.5 words importing natural persons (where appropriate) include corporations, firms, unincorporated associations, partnerships, trusts and any other entities recognised by law and vice versa;

1.2.6 words denoting any gender include all genders;

1.2.7 words "written" and "in writing" include any means of visible reproduction of words in a tangible and permanently viable form;

1.2.8 reference to a "right" includes an entitlement, remedy, discretion and power;

1.2.9 reference to "interest" includes any estate or interest, legal or beneficial, and whether real or personal;

1.2.10 reference to "permit" includes consent to, authorise and allow;

1.2.11 reference to "valid" includes having full force and effect and reference to "invalid" includes not having full force and effect;

1.2.12 reference to a "People" in the list of the Parties on page 1 of this Agreement is a reference to the Native Title Parties for those People, as detailed in the definition of Native Title Parties in clause 1.1;

1.2.13 reference to a "native title determination" means a native title determination as defined in s225 of the NTA;

1.2.14 reference to "registration" in relation to applications for native title determinations refers to registration on the Register of Native Title Claims and in relation to this Agreement refers to registration on the Register;

1.2.15 when referring to native title, "affects" has the same meaning as in s227 of the NTA;

1.2.16 when referring to native title or native title rights and interests, a "surrender" takes place on the later of:

1.2.16.1 immediately after the registration of this Agreement; or

1.2.16.2 the event on the occurrence of which the Parties have agreed the surrender is to occur,

and means a surrender of those native title rights and interests to Queensland;

1.2.17 reference to "consent" to an act after the Registration Date by the Communities or the Native Title Parties means that the Communities or the Native Title Parties also give that consent from the Commencement Date by virtue of the operation of this Agreement at common law;

1.2.18 if an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing;

1.2.19 reference to anything (including a right, obligation or concept) includes each part of it;

1.2.20 where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

1.2.21 reference to a Schedule or an Attachment is a reference to a schedule or attachment to this Agreement;

1.2.22 reference to a sub-clause is a reference to the sub-clause of the clause in which it appears, reference to a paragraph is a reference to a paragraph of the sub-clause in which it appears and reference to a sub-paragraph is a reference to a sub-paragraph of a paragraph in which it appears;

1.2.23 reference to a document or agreement, or provision of a document or agreement, is to that document, agreement or provision as novated, supplemented, varied or replaced from time to time;

1.2.24 a recital, schedule, annexure or a description of the Parties forms part of this Agreement;

1.2.25 a reference to any party to this Agreement or any other document or arrangement or other party identified in this Agreement or any other document or arrangement includes that party's executors, administrators, substitutes, successors and permitted assigns and agents;

1.2.26 a reference to a Minister, Department, authority, body or person includes the Minister, Department, authority, body or person for the time being performing the functions performed by the Minister, Department, authority, body or person at the Commencement Date;

1.2.27 unless otherwise stated, a reference to "dollars" or "$" is to Australian currency;

1.2.28 a reference in the body of this Agreement or in a Schedule to a clause is a reference to a clause in the body of this Agreement or that Schedule, respectively;

1.2.29 ...

1.2.30 where under this Agreement, Comalco commits to discriminate positively in favour of Aboriginal persons, Comalco will use its best endeavours to obtain such authorisations, if any, as may be necessary to allow it to lawfully discriminate in the manner outlined in this Agreement but Comalco's commitments are only activated once Comalco has obtained those authorisations;

1.2.31 a reference to "relevant Traditional Owner Groups" is to those Traditional Owner Groups whose Claim Areas include the land to which the operation of a provision applies and if there is uncertainty as to their identity those nominated by the Co-ordinating Committee;

1.2.32 a reference to land is to be taken to be also a reference to waters;

1.2.33 ...

1.2.34 "extension" refers to an extension of term; and

1.2.35 consents in this Agreement when given on behalf of a native title holder are deemed to have been authorised in accordance with s251A of the NTA.

1.3 Headings

The headings in this Agreement are for the purpose of more convenient reference only and will not form part of this Agreement or affect its construction or interpretation.

1.4 Parts of agreement applying to Queensland

1.4.1 Queensland will not be:

1.4.1.1 bound by any obligations under this Agreement expressed to be obligations of a Party or the Parties; and

1.4.1.2 entitled to exercise any rights under this Agreement expressed to be a right of a Party or the Parties,

unless they are expressly stated to apply to Queensland. Further, Queensland is not entitled to rely on any acknowledgment in this Agreement unless it is expressly stated to be for the benefit of Queensland.

1.4.2 Queensland is bound by, entitled to exercise rights under, and receives the benefits of clauses 1, 2 (but it is not bound by any provisions, including clauses 2.3.11, 2.4, 2.7, 2.8, 2.9 and 2.11.1, to the extent those provisions require it to accept the terms of the Model Determination or its operation), 4, 5, 11.4, 19, 20, 21, 22 and 26 to 46 inclusive and the corresponding schedules.

1.5 Interpretation for Native Title

1.5.1 Despite any other provision of this Agreement, the provisions of this Agreement which deal with the co-existence of native title and the Comalco Interests, the Other Interests, or the performance of the Comalco Activities on any land the subject of SBML 1 when it was originally granted apply only to those parts of the ILUA Area where native title was not extinguished by:

1.5.1.1 the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1; or

1.5.1.2 any other rights or interests granted pursuant to the Comalco Act, the Comalco Agreement or SBML 1; or

1.5.1.3 any other legislation,

and nothing in this Agreement compromises the rights of any Party to contend that native title has been extinguished, either fully or partially, in all or any part of the ILUA Area but Comalco will only contend such extinguishment if any member of the Communities or any person on their behalf makes a Claim contending that native title survives to:

1.5.1.4 the Designated Minerals within or taken from the Mining Leases; or

1.5.1.5 New SPMPLs or Other Interests.

1.5.2 Neither Comalco nor any other Party may rely on the surrenders or extinguishments referred to in clauses 2.2.3 and 2.2.4 in any court proceedings:

1.5.2.1 prior to the Registration Date in relation to surrenders within clause 1.2.16.1; and

1.5.2.2 prior to the date of surrender in relation to surrenders within clause 1.2.16.2 except for the specified purposes of the surrender,

except in proceedings relating to the enforcement of this Agreement or any native title determination or claimant application to the extent that it relates to the ILUA Area.

1.5.3 Where this Agreement states that the native title rights and interests have "no effect", it means that the traditional rights and interests comprising native title are not able to be enjoyed or exercised but, where applicable and subject to the other provisions of this Agreement, the Communities are able to exercise the rights given to them under the NTA, such as the right to negotiate[1] and the right to be consulted about various activities.

1.5.4 Where this Agreement provides that native title rights and interests have "no effect" in relation to the Comalco Interests or the performance of the Comalco Activities, but "again have effect", the Communities have no cause of action against Comalco:

1.5.4.1 for the lawful performance of the Comalco Activities; and

1.5.4.2 for things lawfully done under the authority of the Comalco Interests,

regardless of whether the Comalco Activities could have been done in a manner which would have had a lesser effect on the native title rights and interests, either temporarily or permanently.

...

2 NATIVE TITLE

2.1 Agreement Procedures

2.1.1 The Communities are making this Agreement as occupants and residents of western Cape York Peninsula and, to the extent that they hold or may hold native title, they have authorised the making of this Agreement for the purpose of it constituting an ILUA for the whole of the ILUA Area, and as separate ILUAs as contemplated under clause 2.5.

2.1.2 The Parties agree that this Agreement is to be registered as one ILUA or separate ILUAs.

2.2 Acknowledgments of Past Matters and Present and Future Consents

The Parties make the following acknowledgments and agree to the stated effects of the acknowledgments and, subject to this Agreement, give the stated consents.

2.2.1 The Comalco Interests, the Other Interests, and the performance of the Comalco Activities to the Registration Date are valid. If any of the Comalco Interests and Other Interests, or the performance of any of the Comalco Activities, have ever been invalid to any extent, the Parties agree to their validation, and that they are taken to be valid and always to have been valid.

2.2.2 On the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1, any native title rights which may have existed yielded to the extent of any inconsistency between them and the Comalco Act, the Comalco Agreement, the conferral of any of the Comalco Interests and the performance of the Comalco Activities, whether done before or after the Registration Date. The yielded native title rights therefore do not and would not affect, by preventing, inhibiting, restricting, or otherwise qualifying, the conferral of the Comalco Interests or the performance of the Comalco Activities in any way at any time.

2.2.3 In relation to Other Interests and New SPMPLs:

2.2.3.1 at the times of the grants, or purported grants of any Other Interests or any New SPMPLs prior to the Registration Date; and

2.2.3.2 at the time of the grants of any New SPMPLs after the Registration Date,

native title has been, or will be, whichever is relevant, extinguished to the land the subject of the grants, and any that has otherwise survived or would otherwise have survived, is surrendered with that intention. The Communities consent to the grant of any New SPMPLs after the Registration Date.

2.2.4 In recognition of the benefits Comalco and Queensland has agreed to make available to the Communities under this Agreement and the position Comalco is adopting regarding the possible survival of native title to the ILUA Area, to allay doubt, if any native title rights presently subsist to all, or a portion of, the Designated Minerals either presently within, or previously taken from, the Mining Leases, those native title rights are surrendered with the intention that they be extinguished. The effect of this clause applies notwithstanding any decision of any Court regarding the extinguishment or otherwise of native title in minerals generally. The Communities will not contend the existence or survival of native title to any of the Designated Minerals, or a portion of the Designated Minerals as resources taken from the Mining Leases, either presently within, or previously taken from, the Mining Leases, from the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1. Comalco and Queensland may plead this clause in bar to any Claim brought by the Communities, any member of the Communities or any person on or for their behalf, so contending the existence or survival of native title to the Designated Minerals. The Communities by entering into this Agreement consent to Comalco or Queensland becoming a party in any matter where such a Claim is made.

2.2.5 For resources taken by Comalco under the authority of the Comalco Interests from the ILUA Area (other than the Designated Minerals), the Communities' native title rights and interests do not include a right to a portion of those resources. However to allay doubt, if any native title rights and interests comprise those rights, the Communities waive any entitlement to enforce those native title rights which may have arisen on or before the Commencement Date as against Comalco or Queensland and agree not to exercise such rights after the Commencement Date against Comalco or Queensland.

2.2.6 The Communities consent to all acts conferring upon Comalco any of the Comalco Interests listed in subparagraphs (c), (d) and (g) to (l) inclusive of the definition of "Comalco Interests" in clause 1.1 after the Registration Date and the performance of the Comalco Activities, regardless of whether those acts affect, or would but for this Agreement, affect native title.

2.2.7 If, but for this Agreement, Procedural Requirements would have applied to the conferral of a Comalco Interest, Comalco must perform those Procedural Requirements as if they still applied.

2.2.8 In relation to the Ports Corporation, the Communities consent to, after the Registration Date:

2.2.8.1 the vesting or grant of any land within the ILUA Area to the Ports Corporation; and

2.2.8.2 the conferral on the Ports Corporation or Comalco of all rights necessary to enable:

2.2.8.2.1 the grant of the Comalco Interests, including the grant of any such interest by the Ports Corporation; and

2.2.8.2.2 Comalco to perform the Comalco Activities,

and nothing in this clause is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection.

2.2.9 After the Registration Date, the Communities consent to the shipping of goods in and out of Weipa, and to any other points in the Comalco Interests near or adjacent to the sea or any waterway, but only pursuant to the Comalco Interests or for the performance of the Comalco Activities and nothing in this clause is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection.

2.2.10 Public Services for Weipa Township

2.2.10.1 The Communities consent to:

2.2.10.1.1 the construction, operation, use, maintenance or repair of; and

2.2.10.1.2 the conferral of rights or interests on any person with respect to

facilities (including but not limited to the facilities listed in Schedule 2) for public purposes in Weipa Township.

2.2.10.2 For the purposes of Queensland, the Director-General, Department of Natural Resources and Mines will be responsible for the administration of this clause.

2.3 Acknowledgments – Present and Future Matters

The Parties also make the following acknowledgments and agree to the stated effects of the acknowledgments.

2.3.1 Subject to this Agreement, Comalco is entitled to exercise all rights and interests conferred by the Comalco Interests and to perform the Comalco Activities lawfully in the manner Comalco, in its absolute discretion, deems fit and without incurring any liability to the Communities.

2.3.2 The Comalco Activities constitute activities for the purposes of s44H of the NTA.

2.3.3 Comalco is entitled to exercise a right to exclude any persons from those parts of the ILUA Area required by Comalco in exercise of the rights conferred by the Comalco Interests, the performance of the Comalco Activities, or this Agreement from time to time for operational, safety or security reasons or as required by any law.

2.3.4 For the areas where Comalco exercises a right to exclude persons:

2.3.4.1 any native title rights and interests are wholly inconsistent with the performance of the Comalco Activities and the exercise of rights under the Comalco Interests and may not be exercised by the Communities for the duration of the inconsistency;

2.3.4.2 despite any invitations or licences given by Comalco to others to enter those areas, Comalco's right to exclusive possession includes an entitlement to exclude all others from those areas; and

2.3.4.3 the native title rights and interests will continue to exist in their entirety but will have no effect in relation to the exercise of rights under the Comalco Interests or the performance of the Comalco Activities.

2.3.5 For the areas where Comalco does not exercise a right to exclude persons as acknowledged in this Agreement:

2.3.5.1 where any Comalco Interest or the performance of any Comalco Activity is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the native title rights and interests have no effect on the exercise of rights pursuant to the Comalco Interests or the performance of the Comalco Activities to the extent of any inconsistency; and

2.3.5.2 to the extent that the native title rights and interests are not inconsistent with the Comalco Interests or the performance of the Comalco Activities, the native title rights and interests are exercisable to their full extent in respect of the ILUA Area.

2.3.6 After land ceased or ceases to be subject to the Comalco Interests, native title rights and interests again had effect or can again have effect to the extent possible having regard to the effect of the Comalco Interests and the performance of the Comalco Activities. This clause is not intended to limit the operation of ss 47, 47A or 47B of the NTA.

2.3.7 Despite the acknowledgments by the Communities in clause 2.2, to the extent that native title rights and interests continue to exist, the interaction between them and the Comalco Interests and the performance of the Comalco Activities is as described in this Agreement.

2.3.8 Subdivision P, division 3 of part 2 of the NTA[2] is not intended to apply, and does not apply, to any of the acts consented to or supported in this Agreement including to the renewal, regrant, extension or replacement of the Mining Leases, the grant of any Comalco Interests, or any alterations to any "right to mine" (as the term is used in subdivision P) resulting from environmental requirements, after the Registration Date.

2.3.9 Subject to clause 2.3.10, Comalco has the right (subject to obtaining any necessary Government approvals) to permit (including by way of lease, sublease, licence, delegation, assignment, invitation, or any other dealing) third parties to do any or all of the following:

2.3.9.1 exercise any of the rights conferred by the Comalco Interests or this Agreement;

2.3.9.2 perform the Comalco Activities; or

2.3.9.3 enter and remain on any area of the Comalco Interests for any purpose related to the maintenance or promotion by Comalco of its business interests, and

in exercising the rights described in this clause, Comalco will be mindful of the cultural sensitivities of the Communities.

2.3.10 In permitting third parties to carry out the activities referred to in clause 2.3.9, Comalco must require the third parties to abide by the provisions of this Agreement which would apply to Comalco if it was carrying out the activities, including the provisions dealing with cultural heritage. Comalco will remain liable to the Communities for the performance of Comalco's obligations under this Agreement by such third parties as though the acts or omissions of such third parties were the acts or omissions of Comalco.

2.3.11 Subject to this Agreement and the rights under the Comalco Interests, the native title rights and interests to the ILUA Area that might be possessed by the Possible Native Title Holders for the duration of the Comalco Interests are as specified in Order 3 in the Model Determination.

2.3.12 In relation to the ILUA Area, until the termination of the Comalco Interests the native title rights and interests of the Possible Native Title Holders do not confer possession, occupation, use and enjoyment of the land of any part of the ILUA Area to the exclusion of all others.

2.4 Registering this Agreement as an ILUA

2.4.1 In addition to all other effects that this Agreement may have at law, it constitutes an ILUA, and by execution of this Agreement, the Parties agree to its registration and to take the following steps as applicable to each of them.

2.4.1.1 As soon as practicable after the Commencement Date, the Native Title Parties who are not applicants in relation to any part of the ILUA Area at the Commencement Date will either:

2.4.1.1.1 lodge Conforming Applications in which they are the applicants; or

2.4.1.1.2 procure applicants from their respective Traditional Owner Groups to lodge Conforming Applications,

so that, subject to clause 2.4.1.2 and to the extent permitted by law, all parts of the ILUA Area are subject to Conforming Applications.

2.4.1.2 As soon as practicable, but in any event no later than 6 months after the Commencement Date, the Native Title Parties who are applicants in relation to any part of the ILUA Area at the Commencement Date or who have been Additional Native Title Parties will either amend their claimant applications, in respect of the ILUA Area, to render them Conforming Applications or withdraw that part of their claimant application, in respect of the ILUA Area, and lodge Conforming Applications in accordance with clause 2.4.1.1.

2.4.1.3 A failure by a Native Title Party to comply with clause 2.4.1.2 will be deemed to give rise to a Determination that there has been a Short Term Non-registration Event and Comalco may exercise its rights under clause 2.6.3.1 accordingly.

2.4.1.4 The Native Title Parties must use their best endeavours to procure:

2.4.1.4.1 the applicants in any Non-conforming Applications to amend their Non-conforming Application to render them Conforming Applications; and

2.4.1.4.2 any Additional Native Title Parties who become registered native title claimants to sign and agree to be bound by the terms of this Agreement.

2.4.1.5 The Native Title Parties will ensure that the applicants have, in accordance with s251B of the NTA, proper authorisation for the making of their Conforming Applications.

2.4.1.6 If a Conforming Application is not registered on the Register of Native Title Claims, then the Native Title Parties must use their best endeavours to ensure that the claimant applications made on behalf of their respective Traditional Owner Groups are registered on the Register of Native Title Claims, including by making such amendments, as agreed by Comalco, as may be necessary for registration; providing such material in support of the amended application as the Registrar or the Federal Court may require; and making such application to the Federal Court as may be necessary to achieve registration.

...

2.4.1.11 The Communities will not object to the registration of this Agreement, will use their best endeavours to have an objector withdraw any objection to registration of this Agreement and, once this Agreement is registered, will not apply to any Court, under the NTA or otherwise, to have this Agreement removed from the Register.

2.4.1.12 CYLC and the Communities will each use their best endeavours to ensure that this Agreement remains registered.

2.4.1.13 Notwithstanding clause 2.4.1.1 but subject to clause 2.4.1.14, the Native Title Parties will not be required to lodge a Conforming Application for ILUA Area B.

2.4.1.14 If a person other than a Native Title Party or an applicant authorised by a Traditional Owner Group lodges a claimant application that includes any part of the ILUA Area, then the Native Title Parties, who are the Possible Native Title Holders for that part of the ILUA Area, must, as soon as practicable after the claimant application is made, lodge or procure the lodgement of, on behalf of their Traditional Owner Group, a Conforming Application in relation to that area in accordance with this clause 2.4.1.

...

2.4.5 The Parties acknowledge that some Additional Native Title Parties might agree to be bound by the terms of this Agreement after the Commencement Date. The Parties agree to the amendment of this Agreement:

2.4.5.1 by the addition of the names of those Additional Native Title Parties in Schedule 16; and

2.4.5.2 the signing of this Agreement by those Additional Native Title Parties,

without the necessity for the Parties, other than the Additional Native Title Parties whose names are being added, to sign the amendment. On signing this Agreement as amended in accordance with this clause 2.4.5, an Additional Native Title Party is bound by, entitled to exercise rights under, and receives the benefits of this Agreement from the date of signing.

2.5 Separate ILUAs for Separate Areas

2.5.1 For the purposes of s199C of the NTA and despite anything else contained in this Agreement or any rule of law to the contrary:

2.5.1.1 subject to clause 2.5.2, this Agreement may be registered as a separate ILUA for each Claim Area or such other area within the ILUA Area determined by Comalco after consultation with CYLC and Attachment 1 will be amended accordingly; and

2.5.1.2 for each such separate ILUA a reference to "ILUA Area" will be taken to be a reference to that Claim Area or such other area within the ILUA Area determined by Comalco after consultation with CYLC.

2.5.2 Although this Agreement embodies what may become a number of separate ILUAs (see clause 2.5.1), Comalco may, for convenience, exercise its rights or perform its obligations as if all such ILUAs were the one agreement. The performance by Comalco of its obligations or the exercise of its rights as described under this Agreement will be deemed to be the performance of obligations or the exercise of rights for all of the ILUAs referred to in clause 2.5.1.

2.5.3 If at any time:

2.5.3.1 it appears to Comalco that it is likely that a native title determination will be made; or

2.5.3.2 a native title determination is made,

in relation to any part of the ILUA Area (referred to in clause 2.5 as the "Relevant Part") in favour of any Aboriginal person not a party to, or bound by, this Agreement (referred to in this clause 2.5 as the "New Native Title Holder") which will cause s199C(1)(b) of the NTA to apply:

2.5.3.3 then Comalco is entitled to notify the Native Title Registrar that the ILUA Area is reduced by the Relevant Part and does not include, and is taken not to relate to, the Relevant Part (and if the native title determination is made as contemplated in clause 2.5.3.2, the notification will be deemed to have been given); and

2.5.3.4 CYLC and the Communities will use their respective best endeavours to ensure that the New Native Title Holder:

2.5.3.4.1 adopts and enters into this Agreement as a Native Title Party; and

2.5.3.4.2 makes the appropriate applications to the Federal Court under s199C(1A) of the NTA seeking an order that the Federal Court not remove the details of this Agreement from the Register or, if removal is inevitable, only the minimum area possible.

2.5.4 During any period of time that this Agreement is not registered over a Relevant Part upon the Register under clause 2.5.3, then the provisions of this Agreement (other than clauses 1, 2, 3, 4, 16, 17, 18, 19, 20, 21, 22, 24, 27 and 31 through to 46 (inclusive) and the related Schedules and Attachments) will cease to apply to the Relevant Part during the relevant period.

2.5.5 If this Agreement is (or its details are) removed from the Register, and the New Native Title Holder declines to become a party to this Agreement, or it is reasonably clear, from the circumstances, that the holder does not wish to become a party to this Agreement, the Parties will use their best endeavours to ensure that this Agreement is again registered in respect of the ILUA Area except for the Relevant Part, and for the purposes of this Agreement:

2.5.5.1 "ILUA Area" is taken to exclude the Relevant Part;

2.5.5.2 (for the avoidance of doubt) clause 2 will, to the extent practicable, apply again.

...

2.11 Commitments related to clause 2

2.11.1 Except where it is allowed by this Agreement, no Party may at any time:

2.11.1.1 make a Claim in relation to the ILUA Area or the subject matter of this Agreement (whether a part of any application or other proceedings in a court, tribunal, arbitral body or other judicial or semi-judicial forum) that any matter or thing is contrary to a Model Determination or any other provision in clause 2; or

2.11.1.2 commence or prosecute any Native Title Application in connection with the ILUA Area other than a Conforming Application.

2.11.2 Unless otherwise agreed in writing by the Parties, the Communities must not, at any time, take any action to:

2.11.2.1 except as contemplated by clauses 5.4, 5.6, 11.1 and 11.2, seek the conversion of the underlying tenure of any land the subject of any Comalco Interest into Aboriginal Land;

2.11.2.2 except as contemplated by clauses 5.4, 5.6, 11.1and 11.2 and the Weipa Township Agreement, seek any other grants of freehold or leasehold title within the ILUA Area which would impede, interfere with or prejudicially affect any of Comalco's rights or interests under the Comalco Interests or this Agreement; or

2.11.2.3 commence or prosecute any claim or other legal action relating to cultural heritage in connection with the land the subject of the Comalco Interests, except in accordance with clause 27.

2.11.3 If any Party (other than Comalco or Queensland) materially breaches the condition referred to in clause 2.11.1, Comalco may, at its discretion (and without limiting its other rights) oppose any Native Title Application in so far as it relates to that Party in any manner it sees fit (including by contending that native title to or part of, the ILUA Area has been extinguished).

2.12 Warranties by the Communities

The Communities represent and warrant to Comalco that:

2.12.1 the native title groups (other than CYLC), on whose behalf the Native Title Parties have been authorised to sign this Agreement, in respect of all parts of the ILUA Area have been identified and are as identified in the :

...; and

2.12.2 the members of each of the Traditional Owner Groups to make Conforming Applications in respect of all parts of the ILUA Area have, in accordance with s251A of the NTA, properly authorised the making of this Agreement.

...

2.14 NTA Authorisation

2.14.1 The Parties acknowledge that, but for this Agreement, certain activities may nevertheless be permitted by provisions of the NTA (other than by subdivision C, division 3 of part 2 of the NTA).

2.14.2 If a Government proposes to do any of the things the subject of the sections referred to in s24AA(4)(e), (f) and (i) of the NTA, in relation to the ILUA Area and those things directly relate to the Comalco Interests or the performance of the Comalco Activities, then such things are consented to, valid and permitted under and covered by this Agreement.

3 SUPPORT FOR COMALCO INTERESTS AND COMALCO ACTIVITIES

3.1 General support

3.1.1 The Communities agree to, and support, Comalco's having and obtaining the Comalco Interests and the performance of the Comalco Activities.

3.1.2 The Communities will support the grant, from time to time, to Comalco of such Government approvals and authorisations in the future that are necessary for the performance of the Comalco Activities or as may be required for Comalco Activities. The Communities are not required to incur any expense in the performance of their obligations.

3.1.3 If after the Commencement Date, Comalco lawfully acquires any new rights or interests in relation to the ILUA Area (including after, where relevant, following any processes under the NTA), the Communities agree to support such rights as if they were part of the Comalco Interests under this Agreement.

3.1.4 Comalco, or any of its Associates, may carry out any act or activity, directly or indirectly, permitted or supported by clauses 3.1.1 and 3.1.2 as of right and without any payment to any other Party under this Agreement.

3.2 Specific Support

3.2.1 The support contemplated in clause 3.1 includes, subject to this Agreement, requirements that the Communities will:

3.2.1.1 support the same or similar activities carried out in parts of the Comalco Interests not previously used (for example, mining in, or transportation or access over, new areas) and construction of plant, facilities and infrastructure for the performance of the Comalco Activities;

3.2.1.2 as an alternative to ML 6024, consent to the grant of any interests that may be necessary for Comalco for access to or to transport materials between the areas of land the subject of ML 7024 which are north and south of the Embley River and to enable the construction of any infrastructure required for that access or transportation; or

3.2.1.3 if required, consent to any extensions, renewals or replacements of ML 7024 or ML 6024,

even though such rights and interests may, notwithstanding the provisions of this Agreement, be Pre-Existing Right-Based Acts.

3.2.2 Nothing in this clause 3 is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection.

3.3 Support for Gas or Energy Supply

3.3.1 Subject to the payment under clause 3.3.2, the Communities consent to the grant of any rights over the ILUA Area necessary to enable the supply of gas to the Weipa Operations and to lay any related gas pipelines or provide any storage installations and other facilities and these rights must:

3.3.1.1 be substantially similar to the rights granted over native title rights and interests for the provision of gas spur pipelines in Cape York but outside the ILUA Area (for example the gas spur lines from the proposed PNG/Queensland Gas pipeline);

3.3.1.2 have a substantially similar effect on native title rights and interests as those referred to in clause 3.3.1.1 and any compensation referred to in clause 3.3.2 will be substantially similar to that paid for the effect on native title rights and interests of the grant of the provision of gas spur pipelines in Cape York but outside the ILUA Area.

3.3.2 The nature of the rights, their effect on native title rights and interests and any compensation will be agreed by Comalco and the Co-ordinating Committee following consultation with the relevant Traditional Owner Groups. The amount of compensation must be paid to the Trustee and applied in accordance with this Agreement.

3.3.3 If the Co-ordinating Committee and Comalco cannot agree on the amount referred to in clause 3.3.2 within a reasonable time, then either may give the other notice that there is a Dispute. Clause 27 will apply to the Dispute subject to the dispute being determined by the person whom the Co-ordinating Committee and Comalco agree has, under other agreements, determined, or been appointed to determine, the amount payable as compensation for the effect on native title rights and interests of the grant of similar rights within Cape York but outside the ILUA Area. Where they cannot agree on the appointment or there is no such person, then the appointment will be made by the President of the Institute of Arbitrators.

3.4 Change in circumstances

The commitments of the Parties under this Agreement (in particular, clauses 2 and 3) are intended to provide long-term benefits for the Parties, even if the law or circumstances change over time. Without any limitation:

3.4.1 the commitments continue even if, for some reason at some time in the future, any of the Parties obtain further rights or interests or new rights or interests are given to any of the Parties (for example, by future legislation), in relation to the ILUA Area; and

3.4.2 if the Parties obtain further or new rights or interests in relation to the ILUA Area that, if exercised, might hinder or impede the rights of any other Party, the Parties agree to exercise those rights in a way that is consistent with this Agreement.
...
10 THIRD PARTY ACCESS TO AND ACTIVITIES ON THE MINING LEASES

10.1 Towns upon ML7024

The Native Title Parties and the Communities acknowledge that the following activities may be conducted on any part of any ML7024 Town for purposes of or incidental to a town:

10.1.1 residential, commercial, industrial, municipal, airport, road, transportation, social, tourist, sporting, recreational, health, educational, charitable, community and other similar purposes; and

10.1.2 activities typically conducted by or for residents, and their invitees, of similar sized towns elsewhere in Queensland.

10.2 Infrastructure

10.2.1 The Communities agree to public use of the following infrastructure within the Mining Leases:

10.2.1.1 roads intended for public use, aerodromes, airports, bridges and other transport related infrastructure in existence as at the date of this Agreement, which (for the avoidance of doubt) includes the Weipa-Mapoon Road, the Weipa-Coen Road (where it joins the Peninsula Development Road at the boundary of ML7024), the Weipa-Aurukun Road and the Weipa Aerodrome; and

10.2.1.2 any infrastructure of the kind referred to in clause 10.2.1 established upon any of the Mining Leases in the future.

10.2.2 Comalco will consult with the Co-ordinating Committee and the Co-ordinating Committee or its authorised representative must consult with the relevant Traditional Owner Groups about any proposal by it to establish infrastructure of the kind referred to in clause 10.2.1.

10.3 Permit System

10.3.1 The Parties acknowledge the existence of the permit system for access by tourists and residents of ML7024 Towns for sporting, recreational, community or similar purposes to parts of the ILUA Area, compiled by Comalco with the assistance of the Aurukun Shire Council, Napranum Aboriginal Council, Marpuna Corporation (now Mapoon Aboriginal Council), Alspac and the Weipa Citizens Advisory Committee. The Co-ordinating Committee will review the Permit System as soon as practicable but in any event within 6 months of the Commencement Date.

10.3.2 Comalco will, to the extent it is reasonably able to do so, assist the Communities to implement the Permit System.

10.3.3 Comalco will not authorise the establishment or use of any camp site for sporting, recreational, community or similar purposes on the Mining Leases other than those camp sites governed by the Permit System, without the consent of the Co-ordinating Committee. The consent of the Co-ordinating Committee may only be given after it has consulted with the Traditional Owner Groups who are traditional owners of the land on which the camp site is to be established or used.

10.3.4 The Permit System may be amended by the Co-ordinating Committee from time to time, provided the amendment has been consented to by the relevant Traditional Owner Groups and each of the relevant Councils and, to the extent it applies to the ILUA Area, Comalco. Such consent by Comalco will not be unreasonably withheld having regard to the Comalco Interests and Comalco Activities.

10.3.5 Comalco will not (other than for safety or in an emergency) authorise, under the Permit System, the discharge of firearms or the lighting of campfires.

10.3.6 The Permit System, its operation and any obligations of Comalco in relation to the Permit System, are subject to any rights of access or use or any right to carry out activities authorised by the operation of clauses 2.3.9, 10.1, 10.2 and 10.4 or the principles referred to in them.

10.3.7 The Co-ordinating Committee and Comalco may agree on the roads within the Mining Leases that are not to be used by the public as contemplated under clause 10.2.1 but which are to be subject to the Permit System eg tracks or roads to Outstations or Significant Aboriginal Sites or areas that have been surrendered from the Mining Leases in accordance with clauses 5.1 or 5.2.

...

10.5 Avoidance of doubt

For the avoidance of doubt:

10.5.1 nothing in this clause 10 affects any Parties' rights elsewhere in this Agreement; and

10.5.2 the Parties acknowledge that Comalco cannot control any use a third party might make of any part of the Mining Leases if that third party's right to enter or be upon the land, use or occupy it or erect any buildings or structures or make any other improvements is lawfully authorised, independently of Comalco, for example:

10.5.2.1 by or under the Mineral Resources Act 1989, any other statute relating to mining or any other law; or

10.5.2.2 under any permission given by the Minister for access across ML7024 pursuant to clause 56(a) of the Comalco Agreement.

...
19 BENEFITS PROVIDED BY COMALCO AND QUEENSLAND

19.1 No other Benefits

19.1.1 The benefits provided by Comalco and Queensland under this Agreement are in full satisfaction of:

19.1.1.1 any and all payments or benefits that may be or may have been, payable or provided, and any other right, under any laws (including common law, equity or statute) about the enjoyment by Comalco (or any Associate) of the Comalco Interests, or the performance of the Comalco Activities; and

19.1.1.2 any claims, under any laws (including common law, equity or statute), that may be made by any native title holders, or any person on their behalf, against Queensland, Comalco, or its predecessors in title, or any person acquiring property from Comalco, on the basis of any derogation of their rights or interests in relation to the land the subject of the Comalco Interests or the effect of the performance of the Comalco Activities.

19.1.2 Clause 19.1.1 includes amounts that might otherwise have been, or become, payable under the NTA, Native Title (Queensland) Act 1993 (Qld), Racial Discrimination Act 1975 (Cth), the Aboriginal Land Act 1991 (Qld), the Mineral Resources Act 1989 (Qld), the Acquisition of Land Act 1967 (Qld), any other relevant legislation and any new legal principles established from time to time (including by the decisions of any court or tribunal).

19.1.3 The Communities and each member of the Communities and CYLC release Queensland, Comalco and its Related Bodies Corporate from any Claim in relation to the Comalco Interests or the performance of the Comalco Activities.

19.2 Protection of Benefits

If any person, other than the members of the Communities who are bound by this Agreement:

19.2.1 is able to establish that they have native title rights or interests in relation to any part of the ILUA Area and, as a result, is entitled to payment or provision of benefits or compensation from Queensland or Comalco (whichever is relevant) (directly or indirectly) under any law (including common law, equity or statute) including any payment for interference with such rights or interests; or

19.2.2 they are entitled to damages against Queensland or Comalco (whichever is relevant) on the basis of any derogation of the rights or interests of a native title holder,

Queensland or Comalco (whichever is relevant) may elect to suspend (in whole or in part) its obligation to make the payments or contributions under this Agreement until the amount that would have been paid but for the suspension is equivalent to any such payment, contribution, provision of benefits or damages and its costs in defending any action by the person asserting those rights or interests.

19.3 Benefits to Possible Native Title Holders

In addition to the benefits which Comalco has agreed to make available under other provisions of this Agreement, CYLC acknowledges the receipt of the sum of $1.00 paid by Comalco and $1.00 paid by Queensland on the Commencement Date which is to be held in trust by CYLC on behalf of all Possible Native Title Holders. ...

ATTACHMENT 1

ILUA AREA
(clause 1.1 of Agreement)

The map showing the ILUA Area follows the ILUA Area description below. To the extent of any inconsistency, the written description prevails over the area indicated on the map.

ILUA AREA DESCRIPTION

The ILUA Area is comprised of the following areas:

all land and waters within the ML 6024 Area and the ML 7024 Area but subject to the removal of particular areas from the ILUA Area from time to time as specifically provided in this Agreement;
the land and waters of Albatross Bay and the rivers and creeks running into it (below the high water mark) from the Territorial Sea Baseline of Albatross Bay eastward to the most easterly of:

(a) the coastline;

(b) the western boundary of ML 7024;

(d) in the Mission River, longitude 141° 59' 30.5",

but excluding any areas within the Shire of Aurukun as shown on Plan SC 211;

the land and waters of Port Musgrave and the rivers and creeks running into it (below the high water mark) from the Territorial Sea Baseline of Port Musgrave easterly along the Ducie River to the boundary of ML 7024 and southerly along the Wenlock River to the boundary of ML 7024;
the land and waters within the Weipa Township boundary irrespective of whether the land and waters are also within ML 7024;
the following lots outside of the Weipa Township boundary which have been surrendered from ML 7024 but which are generally located within the area defined by the outer boundaries of the ML 7024 Area:

(a) Lot 342 on MP 36486;

(b) Lot 22 on MP 32268;

(d) Lot 29 on SP 116854 (WP 18);

(e) Lot 17 on SP 116853 (WP 12);

(f) Lot 2 on MP 26144 (WP 6);

(g) Lot 25 on MP 26155 (WP 15);

(h) Lot 37 on MP 30227 (WP 23);

(i) Lot 39 on MP 30554 (WP 26); and

(j) Lot 30 on MP 30144 (WP 21); and

ILUA Area B which is the land and waters extending 3 nautical miles from the coastline or the Territorial Sea Baseline as applicable between:

(a) latitudes 12° 54' 23.0" South and 11° 57' 24.2" South (between Port Musgrave and Cullen Point);

(b) latitudes 12° 34' 26.2" South and 13° 11' 28.3" South (between Duyfken Point and Ina Creek); and

irrespective of whether the land and waters are also within ML 7024.

ILUA AREA MAP

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	QUD 6029 of 2001
GENERAL DIVISION

BETWEEN:

ANTHONY KERINDUN, JANINE CHEVATHUN AND ALISON WOOLLA AS THE APPLICANT ON THEIR OWN BEHALF AND FOR AND ON BEHALF OF THE MEMBERS OF THE WIK AND WIK WAY NATIVE TITLE CLAIM GROUP
Applicant

AND:

JUDGE:	GREENWOOD J
DATE:	29 JULY 2009
PLACE:	AURUKUN, CAPE YORK PENINSULA

REASONS FOR JUDGMENT

The Federal Court of Australia convenes here at Aurukun today on country to make and explain the reasons for making orders under s 87 of the Native Title Act 1993 (Cth) (“the Act”) that take effect as a determination of the traditional native title rights and interests of the Wik and Wik Way Peoples in the lands and waters of the Determination Area over which they assert a continuous exercise of traditional rights and interests by their people prior to and since sovereignty.
The land and waters of the Determination Area described in detail in the Schedule to the Orders made today, and also illustrated as Areas 1 and 2 on the Plan annexed to the Orders, are more broadly described as the land and waters on the western side of Cape York Peninsula landward of the high water mark at mean spring tide of the sea of the Gulf of Carpentaria, bounded to the north by the Embley River and to the south by the Edward River and extending in the east to the upper reaches of the watercourses that drain into the Gulf of Carpentaria.
The application is brought by Anthony Kerindun, Janine Chevathun and Allison Woolla as applicants on their own behalf and for and on behalf of the members of the Wik and Wik Way Native Title Claim Group.
The parties that elected to be joined as respondents to the application are the State of Queensland; the Ports Corporation of Queensland; the Cook Shire Council; Albatross Hire Pty Ltd; 15 commercial fishing authority licence holders by their agent the Queensland Seafood Industry Association; and Rio Tinto Aluminium Limited (formerly Comalco Aluminium Limited). Although the Commonwealth entered an appearance, it elected to withdraw as a respondent on 2 September 2008.
This application was commenced on 14 September 2001.
On 14 March 2001, the State of Queensland, Rio Tinto Aluminium Limited (“Rio Tinto”), Cape York Land Council, the Council of the Shire of Aurukun, Mapoon Aboriginal Council, Napranum Aboriginal Council, New Mapoon Aboriginal Council and a number of traditional owners entered into an agreement known as the Western Cape Communities Co-existence Agreement (“the Co-existence Agreement”). The Co-Existence Agreement is an area indigenous land use agreement (“ILUA”) under subdivision C of Division 3 of Part 2 of the Act. The ILUA Area for the Co-Existence Agreement is defined to include all the land and waters the subject of ML6024 and ML7024 which are held by Rio Tinto; the land and waters of Albatross Bay and the rivers and creeks running into it; and certain other land and waters adjacent to ML7024.
On 27 August 2001, the Co-Existence Agreement was registered on the Register of Indigenous Land Use Agreements as an area agreement under the provisions of the Act.
The Co-Existence Agreement cast obligations upon the traditional owners to commence determination applications under the Act in respect of any or all parts of the ILUA area, according to the terms and conditions of the Co-Existence Agreement. Such an application is regarded as a conforming application for the purposes of that agreement. Prior to the parties entering into the Co-Existence Agreement, a claim group on behalf of the Wik and Wik Way Peoples commenced a native title determination before the National Native Title Tribunal on 24 March 1994 and proceedings QG6001 of 1998 were commenced in this Court by which a determination of native title rights and interests was sought. Determination application QUD6001 of 1998 came to be described as the main application. Three determinations of the subsistence of native title rights and interests have been made by the Court in relation to the land and waters the subject of the claim in the main application. The first determination was made by Justice Drummond on 3 October 2000 in respect of what was described as Part A of the determination application. Part A of the application was confined to lands that had always been unallocated Crown lands or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal peoples (Wik Peoples v State of Queensland [2000] FCA 1443). Part B of the application comprised the balance of the lands and waters of the claim area, which contained lands held under pastoral and mining titles. The parties to the main application negotiated, through mediation processes, a resolution of the Part B claim and on 13 October 2004, Justice Cooper made two determinations of the native title rights and interests of the Wik and Wik Way Peoples in respect of those lands and waters (Wik Peoples v State of Queensland [2004] FCA 1306).
On 12 June 2003 and 4 September 2003, the present application was amended with leave of the Court. Schedule E to the application was amended on 12 June 2003 to properly and effectively describe the native title rights and interests. Schedule G was amended on that date to properly identify the details of the activities currently being carried out in respect of the land and waters by the native title claim group. Schedule H was amended on that date to re-define the land and waters of the claim so as to sit consistently with the main application. The Wik and Wik Way Peoples native title determination application (QG6001/98) had been amended on 7 September 2001 to remove from the determination application any claim for a determination of native title in relation to any part of the land and waters the subject of this application. The application was further amended to record that the Wik Peoples compensation application (QG6213/98) was discontinued on 2 September 2003 pursuant to leave granted by the Court on 25 August 2003. On 18 September 2003, the application was registered on the Register of Native Title Claims. The National Native Title Tribunal notified the claim publicly in accordance with s 66 of the Act on 7 April 2004. The notification period under the Act expired on 6 July 2004.
The application as then formulated involved a sea component. On 29 April 2009, the Court gave leave to the claimants to amend the application by removing the sea component of the claim from the proposed Determination Area.
Accordingly, the Determination Area in this application is not the subject of any other claim or determination by the Court.
After mediation, the parties to their credit reached a final agreement in respect of this application, executed by them between 25 June 2009 and 6 July 2009 for the purposes of a Consent Determination by the Court under s 87(2) of the Act. The agreement was filed in the Court on 6 July 2009.
Section 87 of the Act provides, relevantly for present purposes, that if, after a particular date, the parties to a determination application reach agreement, in writing, on the terms of a proposed order the Court might make in the disposition of the proceeding, the Court may, if the proposed orders are within the power of the Court (i.e. within jurisdiction) and, if it appears to the Court to be appropriate to do so, make orders in, or consistent with, the terms of the agreement without conducting a hearing of the proceeding.
Section 13(1) of the Act provides that an application for a determination of native title may be made under Part 3 of the Act in relation to an area for which there is no approved determination of native title. The present application is made under s 61 of the Act within Part 3 and there is no approved determination in relation to the land and waters within the Determination Area. I am familiar with the material in this application having been involved in the case management of the proceedings and having conducted a number of directions hearings in the proceedings. I am satisfied that the orders sought are plainly within power.
Orders made under s 87 of the Act take effect not only inter-parties in the resolution of the claims made in the proceedings but represent an independent judicial determination, in the exercise of the judicial power of the Commonwealth, that may be asserted, as a matter of law, against anyone. Although the Act by s 223(1)(c) in part defines native title or native title rights and interests by reference to the rights and interests recognised by the common law of Australia, a determination of native title expresses the recognition and protection of those rights and interests in relation to land and waters defined and described in s 223 of the Act which find their origin in traditional laws and customs, not the Act (Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at [75] and [76] per Gleeson CJ, Gummow and Hayne JJ).
A number of considerations are to be taken into account in determining whether the proposed orders appear appropriate to the Court. First, the Act recognises and 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 necessary in the course of a resolving a controversy. Second, the Court will be concerned to understand and place emphasis upon whether the agreement is freely made on an informed basis by all parties and whether the parties are represented by experienced independent lawyers. In the case of a State party representing the public interest, the Court will consider whether appropriate consideration has been given to the issues raised by the proposed consent determination. Third, so far as the State is concerned, the Court recognises that a State has access to its own archival material and generally has had a long period of engagement with Aboriginal communities and is therefore likely to be familiar with the historical arrangements within those communities. Fourth, although it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, the Court ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are “rooted in reality” (“Native Title – A Constitutional Shift?”, University of Melbourne Law School, JD Lecture Series, Chief Justice French, 24 March 2009).
In that sense, the Court ought to be satisfied that the proposed orders are prima facie appropriate in order to satisfy the test under s 87(2) of the Act.
In this case, the parties are represented by independent lawyers experienced in the conduct of native title proceedings and the analysis of issues arising in such proceedings for the purposes of the Act. Negotiations between representatives of the Wik and Wik Way claim group and the State concerning the nature and extent of native title in the claim areas the subject of the main application have been taking place since 1996. There has been a long history of engagement on the nature of the traditional and customary rights and interests of the Wik and Wik Way Peoples, their connection with their country and the practice over time of those traditional laws and customs. The State of Queensland has been a participant in these negotiations arising out of the main application and in this application. Anthropological reports and affidavits supporting those reports, prepared in the course of the main application, were submitted to the State in 1997, 2000, 2001 and 2004. On 15 July 2005, the State advised the claimants that the connection material identified by the applicants was sufficient to enable the State to proceed with substantive negotiations in relation to the land component of this application.
In this application, the applicants have retained Professor Peter John Sutton to assist them in isolating material in relation to connection with and occupation by the Wik and Wik Way Peoples of the land and waters of the Determination 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.
Professor Sutton is an Australian Research Council Professorial Fellow of the School of Social Sciences at the University of Adelaide and in the Division of Anthropology at the South Australian Museum. Professor Sutton is also an Honorary Research Fellow of the Institute of Archaeology at University College, London. Professor Sutton has worked with Aboriginal people since 1969, mainly in remote and rural areas of far North Queensland and the Northern Territory. Professor Sutton speaks languages from western and eastern parts of Cape York Peninsula and he is extensively published in the discipline of anthropology. Professor Sutton has been retained as a linguistic and anthropological consultant in relation to the native title claims of the Wik and Wik Way claim group since 1992. He has carried out studies of the Wik and Wik Way Peoples and worked with members of the claim group and their predecessors since 1976.
Professor Sutton had regard to his own research over this long period and the research of other recognised anthropologists in formulating a report dated October 2008 described as an “Anthropological Overview” for consideration by the Court for the purposes of s 87 of the Act. Specifically, Professor Sutton has given extensive consideration to the nature and content of the rights and interests possessed by the Wik and Wik Way Peoples under traditional laws acknowledged and traditional customs observed by them, the continued acknowledgement and observance of those traditional laws and customs and the continued connection of the Wik and Wik Way Peoples to the land and waters of the main application and the land and waters the subject of the present application, through the practice of those laws and customs by the Wik and Wik Way Peoples. Professor Sutton has also had regard to significant anthropological research and investigation on the same topic conducted by Dr David Martin.
Professor Sutton concludes that this body of research demonstrates so far as this application is concerned, that:

(a) the members of the Wik and Wik Way native title claim group are descended from the traditional society in occupation of the land and waters identified as the determination area at the time of sovereignty;

(b) the society in occupation of the determination area at the time of sovereignty observed traditional laws and customs which have continued to be acknowledged and observed by the members of the Wik and Wik Way native title claim group and their predecessors;

(c) through the continued acknowledgement and observation of the traditional laws and customs, the members of the Wik and Wik Way native title claim group and their predecessors have maintained a connection to the determination area;

(d) the activities undertaken by the members of the Wik and Wik Way native title claim group on the determination area are referable to the rights and interests identified in the proposed consent determinations of native title, as regulated by their traditional laws and customs.

I have considered the detailed Anthropological Overview prepared by Professor Sutton and particularly the discussion of Wik Totemic clans characterised as a social category formed on a principle of, for the most part, patrilineal descent; the nature of riverine groups and regional ceremonial groups; the collective clan model for articulating in a complex way the inter-relationship between higher-level groupings amongst the Wik Peoples; and the specific discussion of the Wik-Way Peoples. I particularly note the discussion by Professor Sutton of the nature of the traditional rights practised by the Wik-Way Peoples and the “order and character” of those rights and customs.
It is not necessary to set out in these reasons the details of the investigation conducted by Professor Sutton and Dr Martin. However, it is clear that there is extensive evidence of inhabitation of the Determination Area by Aboriginal people for millennia. Linguistic analysis indicates that the Wik language has evolved over at least 300 years and that these linguistic patterns developed in an area now inhabited by Wik speaking Peoples.
There is firsthand evidence of Aboriginal society in the area now inhabited by the Wik and Wik Way Peoples. The evidence is to be found in the logs and journals of Captain Willem Jansz in the Duyfken as early as 1606. Captain Jansz mapped and named Cape Keerweer. The crew of the Dyufken engaged with Aboriginal people at Edward River and near Archer River. Observations of the area were made by Matthew Flinders. The Jardine brothers engaged with Aboriginal people in the course of their journey through Cape York Peninsula in December 1894. Mission and government records from as early as 1897 record the presence of Aboriginal people in a collective or organised way in connection with the land and waters of the main application and this application. The anthropological record includes the work of Ursula McConnel, Donald Thomson, Lauriston Sharp, Frederick McCarthy, John Taylor, John von Sturmer and Athol Chase. Linguistic studies were conducted by Ursula McConnel, Donald Thomson, Kenneth Hale, John von Sturmer and others.
All of the anthropological reports have been provided to the State.
Section 94A of the Act requires that an order for a determination of native title must set out details of the matters mentioned in s 225 of the Act which must be read together with s 223 of the Act. These sections give meaning to the terms “determination of native title” and “native title” and “native title rights and interests”. In Members of the Yorta Yorta Aboriginal Community v State of Victoria (supra) at [76], Gleeson CJ, Gummow and Hayne JJ treated the statutory elements contained in s 223 as central. The mandatory requirements for a determination of native title are these. The native title rights and interests must be communal, group or individual. They must be rights and interests in relation to land or waters. They must be possessed under the traditional laws acknowledged and the traditional customs observed by Aboriginal peoples; Aboriginal people by their law and customs must have a connection with the land or waters; and the native title rights and interests must be recognised by the common law of Australia.
I am satisfied that the anthropological material demonstrates that the Wik and Wik Way Peoples 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, the Wik and Wik Way Peoples have, since sovereignty, maintained a connection with the Determination Area. I am satisfied that the content of those native title rights and interests which derive from the practice of traditional laws and customs have been identified and established through the anthropological material. The agreement provides for consent orders entirely consistent with the anthropological material.
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 in accordance with s 87 of the Act.
Order 11 of the proposed orders provides that native title is not to be held in trust. By Order 12, Ngan Aak-Kunch Aboriginal Corporation RNTBC (“the Corporation”) is to be the prescribed body corporate for the purposes of s 57(2) of the Act and is to perform the functions set out in s 57(3) after becoming a registered body corporate.
Section 59 of the Act provides that regulations may prescribe the kinds of body corporate that may be determined to be a prescribed body corporate for the purposes of s 57(2)(b) of the Act. Regulation 4(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (“the Native Title Regulations”) provides that an Aboriginal and Torres Strait Islander corporation is prescribed if it is registered for the purposes of being the subject of a s 57 determination. It will be taken to be registered if the following three requirements of Regulation 4(2) are satisfied:

(a) all members of the corporation are persons who, at the time of making of the section 56 or 57 determination, are included, or proposed to be included, in the native title determination as native title holders; and

(b) the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and

(c) at all times after the section 56 or 57 determination is made, all members of the corporation are persons who have native title rights and interests in relation to the land or waters to which the native title determination relates.

The Wik and Wik Way Peoples took steps to incorporate Ngan Aak Kunch Aboriginal Corporation under the Aboriginal Councils & Associations Act 1976 (Cth) (“the ACA Act”) on 16 October 2002. Their intention was that it would be nominated as the prescribed body corporate for the purpose of s 57(2) of the Act for the first approved determination of native title in the main application and also for subsequent determinations of native title in which the Wik and Wik Way Peoples were determined to be the native title holders.
The Corporation’s Constitution was approved by the Office of the Registrar of Aboriginal Corporations on 16 October 2002.
A consent order was made in QG6001/1998 by Justice Cooper on 14 April 2003 that the Corporation was to be the prescribed body corporate for the purpose of s 57(2) of the Act and to perform the functions in s 57(3) of the Act after becoming a registered native title body corporate. Orders in the same terms were incorporated into the second and third approved determinations on 13 October 2004.
The Corporation became registered as a corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act) on 1 July 2007, when that act and the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006 (Cth) commenced and the ACA Act was repealed.
The name of the Corporation was changed on 19 February 2009 to Ngan Aak Kunch Aboriginal Corporation RNTBC, as required by s 88-10(2) of the CATSI Act.
On 16 April 2009 a meeting was held of the Wik and Wik Way Peoples in Aurukun. At that meeting the terms of the proposed consent determination were considered. The agreement was approved and authorised.
At that meeting the Corporation was nominated as the prescribed body corporate for the purpose of s 57(2) and to perform the functions in s 57(3) after becoming a registered native title body corporate. A further meeting on that date of the directors of the Corporation resolved to accept and consent to that nomination.
The name of the Corporation was further amended at a meeting on 17 June 2009 from Ngan Aak Kunch Aboriginal Corporation RNTBC to Ngan Aak-Kunch Aboriginal Corporation RNTBC. A new rule-book was also adopted and the previous constitution repealed.
The new rule-book sets out the Corporation’s relevant objects thus:

6. Objects

6.1 The objects for which the Corporation is established are to:

(a) be the subject of determinations of native title under section 57 of the Native Title Act;

(b) be a registered native title body corporate in relation to a determination area for the purposes of the Native Title Act;

(c) perform the functions of a registered native title body corporate that does not hold native title rights and interests in trust for the common law holders under the Native Title Act and the Regulations...

(d) protect the native title rights and interests of the native title holders

The only people eligible to hold membership of the Corporation are adult Aboriginal people who are native title holders. “Native title holders” is defined as “those members of the Wik and Wik Way Peoples who from time to time hold native title rights and interests in relation to a determination area”.
I am satisfied that the Corporation is a prescribed body corporate for the purposes of s 57 of the Act and Regulation 4(1), and that Regulation 4(2) is satisfied.

Conclusion

For the reasons I have indicated, I make the orders and determination sought by the parties. These orders made today give recognition within the Australian legal system to the native title rights and interests of the Wik and Wik Way Peoples in relation to the Determination Area, born out of traditions honoured and customs practised by the ancestors of the claimants and observed and practised by their descendents continuously over time and recognised and protected under the Native Title Act 1993 (Cth).

This is a proud day for the Wik and Wik Way Peoples.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated: 29 July 2009

Counsel for the Applicant:	Represented by their solicitors

Solicitor for the Applicant:	Mr P Hunter and HWL Ebsworth Solicitors

Counsel for the State of Queensland:	Represented by Crown Law

Solicitor for the State of Queensland:	Ms E Fraser, Crown Law

Counsel for Rio Tinto Aluminium Limited:	Represented by its solicitors

Solicitor for Rio Tinto Aluminium Limited:	Ms L Bretherton, Blake Dawson Solicitors

Counsel for the Cook Shire Council:	Represented by its solicitors

Solicitor for the Cook Shire Council:	Mr A Kerr, Preston Lawyers

Counsel for the Fishing Licensees:	Represented by its solicitors

Solicitor for the Fishing Licensees:	Mr P Gore, Gore & Associates Solicitors

Counsel for the Ports Corporation of Queensland:	Represented by its solicitors

Solicitor for the Ports Corporation of Queensland:	Mr D McGann, McCullough Robertson Solicitors

Date of Hearing:	29 July 2009

Date of Judgment:	29 July 2009

[1] The "right to negotiate" procedures are set out in subdivision P, division 3 of part 2 of the NTA.

[2] This is the subdivision which provides the "right to negotiate" procedures of the NTA.

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