Greenwood J
In this decision, Greenwood J made orders by consent recognising the native title rights and interests of the Wuthathi, the Kuuku Ya’u, the Northern Kaanju Peoples and country shared jointly by the Wuthathi People and the Kuuku Ya’u People.
The Determination area is over 1640 square kilometres of land and waters, formerly the subject of the Bromley and Boynton Pastoral leases, in the north eastern part of Cape York Peninsula. The State of Queensland and the Cook Shire Council are the remaining respondents.
The native title holders are:
(a) the Wuthathi People described in Schedule 2 in respect of the Wuthathi country within the Determination Area;
(b) the Kuuku Ya’u People described in Schedule 2 in respect of the Kuuku Ya’u country within the Determination Area;
(c) the Northern Kaanju People described in Schedule 2 in respect of the Northern Kaanju country within the Determination Area; and
(d) both the Wuthathi People described in Schedule 2 and the Kuuku Ya’u People described in Schedule 2, jointly, in respect of that part of the Determination Area shared by them jointly
Rights and Interests Recognised
Exclusive possession native title rights and interests in relation to the land and waters described in Part A of Schedule are the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
The non-exclusive rights in relation to Water are rights to access and be present on and in the Water of the area, hunt, fish and gather from the Water of the area and take and use the Water of the area for cultural, personal, domestic and communal purposes.
Background
On 24 May 2002 representatives of the Wuthathu, Kuuku Ya’u and Northern Kaanju People filed an application for a determination under s 13(1) and s 61(1) Native Title Act 1993 (Cth) (NTA).
It was noted that s 47B NTA applied to 2 former pastoral leases to re enliven native title and the are of the pastoral leases are now amalgamated and included in the consent orders.
Section 94A NTA requires that a native title determination order must satisfy the requirements of s 225 NTA which must be read together with s 223 NTA. These sections give meaning to the terms “determination of native title’ and ‘native title’ and ‘native title rights and interests’. His Honour explained at [14] the mandatory requirements for native title as:
the native title rights and interests be communal, group or individual rights and interests
they must be rights and interests in relation to land or waters
they must be possessed under traditional laws acknowledged, and traditional customs observed by Aboriginal and Torres Strait Islander People
by those laws and customs, they have connection with the land and waters and
the rights and interests must be recognised by the common law of Australia.
His Honour also explained that s 225 NTA required the Court to determine:
who are the persons or group of persons who hold the common or group rights comprising native title;
the nature and extent of those rights in the Determination Area,
the nature and extent of other interests, and the relationship between native title rights and interests and those other interests.
In determining these matters, Greenwood J considered the Overview of Connection Material for the Bromley Native Title Claim dated October 2014, two affidavits from anthropologists and a number of affidavits by members of the claim group which were also considered by the State of Queensland and the Cook Shire Council. Upon examining the materials, his Honour observed at [28]:
It is sufficient for present purposes to observe that Professor Chase and Dr Thompson accept that the native title rights and interests which owe their origin to traditional laws acknowledged and traditional customs observed by the claim group in relation to the Determination Area are 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 and interests in relation to Water (in the sense defined in Order 13 of the orders published today) are properly described as the nonexclusive right to take and use water for personal, domestic and non-commercial communal purposes.
And concluded at [32]:
..I am satisfied that the Court has power to make the determination in the terms proposed and that it is appropriate to do so in all the circumstances
The Court determined that a representative of the common law native title holders must indicate to the Federal Court, within 12 months, whetehr the native title will be hold on trust and nominate a prescribed body corporate in accordance with s 56(2) or s 57(2) NTA.