Greenwood J
In this matter, Greenwood J recognised the exclusive and non-exclusive native title rights and interests of the Kowanyama People, who comprise those people known as Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin, over the remaining area of an initial native title determination application combined with 2 further applications.
The respondents in this matter included the State of Queensland, the Carpentaria Shire Council and a number of individuals termed fishing parties.
Background
The matter has a long and complex history, beginning with an application lodged by the Kowanyama People in March 1997 (the Kowanyama #1 application (QUD 6119 of 1998)). The initial application was progressed through mediation and otherwise in 3 parts:
Part A – native title was recognised on 22 October 2009 (see Kowanyama People v State of Queensland [2009] FCA 1192) or case summary in AIATSIS Resource ‘What’s New’ October 2009).
Parts B and C – native title was recognised in relation to the remainder (see Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377).
The original application had been amended with the Errk Oykangand National Park removed and a new Part D created which form part of the land and waters that is the subject of this consent determination.
On 13 June 2012, the Kowanyama #2 application (QUD 282 of 2012) was filed over the land and waters of the Errk Oykangand National Park.
On 8 November 2013, the Kowanyama #3 application (QUD 743 of 2013) was filed to include areas within the external boundary of the original Kowanyama application that were omitted from the determination areas in Parts B and C.
On 5 December 2013, the remaining Part D area of the Kowanyama #1 application was combined with the Kowanyama #2 and #3 applications. The combined application area is the subject of this consent determination.
On 7 February 2014, the application was further amended to change the composition of the applicant group.
In this matter, the Court was satisfied the parties had come to a fully informed agreement and it is appropriate to make the proposed orders, including by reference to extensive material provided between May 1996 and August 2009.
Rights and Interests
Exclusive native title rights to possession, occupation, use and enjoyment to the exclusion of all others (other than water) were recognised over the Errk Oykangand National Park under s 47A of the Native Title Act 1993 (Cth) (NTA).
Non-exclusive rights were recognised over an internal road within the National Park and the areas currently subject to pastoral leases and portions of land and waters inadvertently omitted from the earlier determinations as identified in Pt 2 of Sch 2 to the orders. These rights and interests include:
access, be present on, move about on and travel over the area;
hunt and fish and gather from, the land and Water for non-commercial, cultural, spiritual, personal, domestic or communal purposes;
take, use, share and exchange Natural Resources for non-commercial, cultural, spiritual, personal, domestic or communal purposes;
take and use the Water for cultural, personal, domestic and non-commercial communal purposes;
live and camp on the area including to erect shelters and other structures;
light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation;
be buried and bury native title holders within the area;
conduct ceremonies, hold meetings and teach on the area the physical and spiritual attributes of the area;
maintain places of importance and areas of significanceand protect those places and areas from harm; and
be accompanied on to the area by specified categories of persons.
Indigenous Land Use Agreement (ILUA)
Greenwood J held that the determination would take effect only upon the registration of an ILUA with Carpentaria Shire Council.
Other rights and interests in the determination area include an ILUA for Errk Oykangand National Park (Cape York Peninsula Aboriginal Land) dated 23 October 2009.
Prescribed Body Corporate
The native title is not held in trust.
The Abm Elgoring Ambung Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57(2) and s 57(3) NTA.