Greenwood J
In this case, the Court made orders by consent recognising the native title rights and interests of the Wuthathi People over approximately 1181 square kilometres of land described at [4] as an ecologically sensitive and beautiful area around Shelburne Bay on the northern tip of Cape York Peninsula and at [26] as lying wholly within the wider area of Wuthathi country, which extends along the coast to Captain Billy Landing in the north, extending southwards to south of the Olive River, and east to the Great Barrier Reef.
The State of Queensland and the Cook Shire Council were the only respondents.
Rights and interests recognised
The exclusive possession native title rights and interests recognised in relation to the land and waters described in Part A of Schedule 1 were: the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
In relation to Water, the non-exclusive rights to hunt, fish and gather from the Water of the area, take and use the Water of the area and access and be present on and in the Water of the area for cultural, personal, domestic and communal purposes.
Background
The Wuthathi People first lodged their native title application on 10 October 1997. Greenwood J observed at [1] that the intervening 18 years have seen the passing of many of senior Wuthathi elders who ought to have had the opportunity of enjoying the recognition by all Australians their native title rights and interests.
On 23 May 2002, six people on behalf of the Wuthathi People filed a new application over what is now the determination area and, on 19 December 2014, an agreement signed by the parties, under s 87 of the Native Title Act 1993 (Cth) (NTA), was filed with the Court.
Between the first application in 1997 and the new application in 2002, the tenure of the land changed from a pastoral lease to ‘unallocated State land’. This triggered the application of s 47B NTA and, as one or more members of the claim group were in occupation of the claim area at the relevant time, ensured any prior extinguishment of native title rights and interests in the claim area could be disregarded.
Considerations when making a Consent Determination
At [16], Greenwood J referred to s 87 NTA, which provides that the parties may file an agreement with the Court and, if the Court is satisfied that making an order in, or consistent with, those terms is within its power, and it appears appropriate to the Court to do so, the Court may make an order without holding a hearing of questions of fact and law in relation to the application.
In determining that it was appropriate to make orders consistent with the terms of the parties’ agreement, Greenwood J set out the following considerations to be taken into account:
the Native Title 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 resolving a controversy.
the importance of the agreement being freely made on an informed basis by all parties to the determination 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
the 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
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): Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306.
Greenwood J noted that the parties were represented by lawyers experienced in the conduct of native title proceedings. His Honour also considered anthropological research that were carried out over a number of years and informative affidavits from members of the claim group before concluding at [36]:
I am satisfied that the anthropological material demonstrates that the Wuthathi People are descended from a society of Aboriginal people who were in occupation of the land and waters of the Determination Area, at sovereignty and who formed a society united by their acknowledgement and observance of a normative body of traditional laws, customs and beliefs. Through their continued acknowledgement and observance of these normative laws and customs, the Wuthathi People 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 and can be properly described as the right to possession, occupation, use and enjoyment of the area to the exclusion of all others, and the native title rights in relation to Water as defined in the proposed Order 12 are properly described as the non-exclusive right to take and use water for personal, domestic and non-commercial communal purposes.
The Wuthathi Aboriginal Corporation was determined as the Prescribed Body Corporate to hold the native title on trust for the Wuthathi People.
ILUAs and this determination
Other interests in the determination area included the rights and interests of the parties under the Wuthathi People and Cook Shire Council (Area Agreement) indigenous land use agreement (QI2007/020), which was registered on 26 June 2009.