Greenwood J
In this matter the Court made orders recognising the native title rights and interests of the Northern Cape York # 2 Native Title Claim Group in relation to an area of land and waters in the north west of the Cape York Peninsula, lying between the Ducie and Wenlock Rivers and Cox Creek and Mission River and Myall Creek in Queensland.
The respondents were the State of Queensland, the Cook Shire Council, the Mapoon Aboriginal Shire Council, the Old Mapoon Aboriginal Corporation, the Australian Maritime Safety Authority, Ergon Energy Corporation Limited, Telstra Corporation Limited, Alcan South Pacific Pty Ltd, RTA Weipa Pty Ltd and Sunrise Minerals Pty Ltd.
The parties filed an agreement under s 87 of the Native Title Act 1993 (Cth) (NTA) proposing a draft consent determination.
In determining whether it is appropriate to make orders, Greenwood J considered whether the agreement has ‘been genuinely and freely made on an informed basis by all parties’ and whether the terms of the agreement reached are “rooted in reality”.
Greenwood J considered all of the requirements for a determination of native title had been met and made the orders as requested.
Rights and interests
Exclusive
The Court declared that, other than in relation to Water, the Applicants held exclusive native title rights to possession, occupation, use and enjoyment of the area to the exclusion of all others described in Schedule 1, Part 1 of the orders.
Non-exclusive
Water- Schedule 1, Part 1
The Court declared that the Applicants held non-exclusive native title rights in relation to Water to hunt, fish and gather, take and use the Natural Resources of the Water in the area and take and use the Water of the area for cultural, personal, domestic and communal purposes.
Non-exclusive Areas - Schedule 1, Part 2
The Court declared that the Applicants held non-exclusive native rights in the area described in Schedule 1, Part 2 of the orders. These rights and interests include the right to:
access, be present on, move about on and travel over the area;
hunt and fish in or on, and gather from, the area;
take, use, share and exchange Natural Resources on the area;
take and use Water from the area for cultural, personal, domestic and communal purposes;
live and camp on the area and for those purposes 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 to bury native title holders within the area;
conduct ceremonies and hold meetings on the area;
teach on the area the physical and spiritual attributes of the area;
maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and to protect those places and areas from harm;
be accompanied on to the area by those persons who, though not native title holders, are:
spouses or partners of native title holders;
people who are members of the immediate family of a spouse or partner of a native title holder; or
people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.
The determination is to take effect after various listed agreements are registered on the Register of Indigenous Land Use Agreements.
Prescribed Body Corporate
The native title is held in trust and the Mokwiri Aboriginal Corporation (ICN 7972) is to be the prescribed body corporate.