FEDERAL COURT OF AUSTRALIA Wik and Wik Way Native Title Claim Group v State of Queensland [2012] FCA 1096 Citation: Wik and Wik Way Native Title Claim Group v State of Queensland [2012] FCA 1096 Parties: ANTHONY KERINDUN, VICTOR LAWRENCE, HOGAN SHORTJOE AND SILAS WOLMBY ON THEIR OWN BEHALF AND FOR AND ON BEHALF OF THE WIK AND WIK WAY NATIVE TITLE CLAIM GROUP v STATE OF QUEENSLAND, COOK SHIRE COUNCIL, TELSTRA CORPORATION LIMITED, AUSTRALIAN WILDLIFE CONSERVANCY, THE TONY AND LISETTE LEWIS SETTLEMENT PTY LIMITED, JOHN ERNEST LYNCH, CAMERON STUART MACLEAN, MICHELLE MARGARET MACLEAN, CAMERON CLIVE QUARTERMAINE and DOREEN RUTH QUARTERMAINE File number: QUD 6001 of 1998 Judge: GREENWOOD J Date of judgment: 11 October 2012 Catchwords: NATIVE TITLE – consideration of a consent determination of the subsistence of native title rights and interests in the Wik and Wik Way Peoples in lands and waters of the western and inland areas of Cape York Peninsula – consideration of the history of the sequence of claims by the Wik and Wik Way Peoples commencing with the filing of the common law claim on 30 June 1993 in reliance upon the principles established in Mabo v Queensland (No. 2) (1992) 175 CLR 1 and the subsequent filing of a claim under the Native Title Act 1993 (Cth) – consideration of the early questions considered by the High Court in relation to impairment and extinguishment of native title rights in the context of the grant of pastoral leases – consideration of the successive determinations of native title made by the Federal Court of Australia Legislation: Native Title Act 1993 (Cth), ss 13, 57, 61, 81, 87(2), 94A, 223 and 225 Commonwealth Aluminium Corporation Pty Limited Act 1957 (Qld) Aurukun Associates Agreement Act 1975 (Qld) Cases cited: Mabo v Queensland (No. 2) (1992) 175 CLR 1 – cited and quoted Wik Peoples v Queensland (1996) 63 FCR 450; 134 ALR 637 – cited Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1; 141 ALR 129 - cited Wik Peoples v State of Queensland & Others [2000] FCA 1443 – cited Wik Peoples v State of Queensland & Others [2004] FCA 1306 - cited Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306 - cited Western Australia v Ward (2002) 213 CLR 1 – cited and quoted Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 - cited Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 – cited Date of hearing: 11 October 2012 Date of last submissions: 11 October 2012 Place: Aurukun Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 68 Solicitor for the Applicant: P Hunter, HWL Ebsworth Solicitors Solicitor for the State of Queensland: G Cooper, Crown Law Solicitor for Cook Shire Council: A Kerr, Preston Law Solicitor for Telstra Corporation Limited: C Lawrence, Ashurst Australia Solicitor for the Australian Wildlife Conservancy: M Boge, Thynne & Macartney Solicitor for the Tony and Lisette Lewis Settlement Pty Limited: M Boge, Thynne & Macartney Solicitor for John Ernest Lynch, Cameron Stuart Maclean, Michelle Margaret Maclean, Cameron Clive Quartermaine and Doreen Ruth Quartermaine: M Boge, Thynne & Macartney IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6001 of 1998 BETWEEN: ANTHONY KERINDUN, VICTOR LAWRENCE, HOGAN SHORTJOE AND SILAS WOLMBY ON THEIR OWN BEHALF AND FOR AND ON BEHALF OF THE WIK AND WIK WAY NATIVE TITLE CLAIM GROUP Applicant AND: STATE OF QUEENSLAND, COOK SHIRE COUNCIL, TELSTRA CORPORATION LIMITED, AUSTRALIAN WILDLIFE CONSERVANCY, THE TONY AND LISETTE LEWIS SETTLEMENT PTY LIMITED, JOHN ERNEST LYNCH, CAMERON STUART MACLEAN and MICHELLE MARGARET MACLEAN, CAMERON CLIVE QUARTERMAINE and DOREEN RUTH QUARTERMAINE Respondents JUDGE: GREENWOOD J DATE OF ORDER: 11 OCTOBER 2012 WHERE MADE: AURUKUN THE COURT NOTES THAT: A. The Applicant has brought Native Title Determination Application QUD 6001/1998 ("the Application") which relates to an area which includes the land and waters the subject of the proposed determination. B. On 3 October 2000 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters of Part A of the area covered by the Application. C. On 13 October 2004, two determinations were made over part of Part B of the area covered by the Application. These determinations became effective on 24 March 2005. D. 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 remaining land and waters of Part B of the area covered by the Application and have asked the Court to make a consent order for a determination of native title over that area. E. 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. BEING SATISFIED THAT a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate for the Court to do so, BY CONSENT THE COURT ORDERS THAT: 1. Native title exists in relation to the Determination Area. 2. The native title in the Determination Area is held by the Wik and Wik Way Peoples ("Native Title Holders") in accordance with traditional laws acknowledged and traditional customs observed by them as common law holders. 3. Subject to paragraphs 5, 6, and 7, the nature and extent of the native title rights and interests within the Determination Area, other than in relation to Water, are non-exclusive rights to: (a) access, move about in and on and be present on, and Camp on, the Determination Area; (b) take and use the Natural Resources of the Determination Area for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes; (c) maintain and protect from harm by lawful means sites and places of significance in the Determination Area; (d) maintain Springs and Wells in the Determination Area for the sole purpose of ensuring the free flow of Water; (e) conduct ceremonies and engage in cultural activities on the Determination Area; (f) hunt and gather in, on and from the Determination Area for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes; and (g) teach the physical and spiritual attributes of sites and places of significance and areas of importance in the Determination Area, and the right to inherit and succeed to the native title rights and interests. 4. Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to Water within the Determination Area are non-exclusive rights to: (a) hunt and fish in or on, and gather from, the Water for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes; and (b) take and use the Water for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes. 5. There are no native title rights or interests in or in relation to Minerals and Petroleum. 6. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders. 7. The native title rights and interests referred to in paragraphs 3 and 4 do not: (a) confer possession, occupation, use or enjoyment to the exclusion of all others; and (b) extend to a right to control access to or a right to control the use of the Determination Area. 8. The nature and extent of the other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3. 9. The relationship between the native title rights and interests described in paragraphs 3 and 4 and the other rights and interests described in Schedule 3 (the "other rights and interests") is that: (a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests; and (b) for the avoidance of doubt, the other rights and interests and any activity that is required or permitted by or under, and done in accordance with, the other rights and interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests. 10. The words and expressions used in this order have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions: "Animal" and "Plant" have the meanings given to them in the Nature Conservation Act 1992 (Qld); "Camp" means to camp on the Determination Area but does not include permanent residence or the construction of permanent structures or fixtures; "Determination Area" means the land and waters described in Schedule 1 and shown on the plan in Schedule 2 and, to the extent of any inconsistency between them, Schedule 1 prevails; "Forest Products" has the meaning given to it in the Forestry Act 1959 (Qld); "Laws of the State and the Commonwealth" means the common law and the laws of the State and the Commonwealth of Australia, 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, Animal and Forest Products found on, or in, the Determination Area from time to time; and (b) flints, clays, soil, sand, gravel and rock on or below the surface of the Determination Area, that have traditionally been taken and used by the Native Title Holders, but does not include Minerals or Petroleum; "Petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "Springs and Wells" means the land to which Water rises naturally from below the ground and the land over which the Water then flows; and "Water" means water as defined by the Water Act 2000 (Qld). AND THE COURT FURTHER ORDERS THAT: 11. Upon paragraphs 1-9 taking effect: (a) the native title is not to be held in trust; and (b) Ngan Aak-Kunch Aboriginal Corporation RNTBC, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (i) be the prescribed body corporate for the purpose of section 57(2) of the Native Title Act 1993 (Cth); and (ii) perform the functions mentioned in section 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. 12. Paragraphs 1-9 will take effect on the agreements referred to in item 6 of Schedule 3 being registered on the register of indigenous land use agreements. 13. In the event that the agreements referred to in item 6 of schedule 3 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as the Court may order, the matter is to be listed for further directions. 14. Each party to the proceeding to bear their own costs. 15. The parties have liberty to apply for the following purposes: (a) to establish the precise location and boundaries of land on which the improvements referred to in Schedule 4 have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements; and (b) to establish whether any of the improvements referred to at Schedule 4 have been constructed unlawfully. SCHEDULE 1 – Determination Area (see Order 10) The Determination Area is the land and waters within the area described as Lots 4, 5, 6, & 7 on AP17644 covering: (a) Lot 1 on YK4 ("the Watson River Lease"), excluding areas identified on YK4 as "Road 60 Wide"; (b) Lot 653 on SP178000 ("the Kendall River Lease") including an area identified as "Road 60 Wide" and delineated by stations "A – B" on SP178000; (c) that part of the Holroyd River where it adjoins the southern boundary of Lot 653 on SP178000; (d) part of Lot 2 on SP140870 (previously part of Lot 2 on YK11) ("the Piccaninny Plains Lease"), excluding area identified as "Road 60 Wide" within that part; (e) that part of the Archer River where it adjoins the southern boundary of that part of Lot 2 on SP140870 which falls within the Determination Area; (f) part of Lot 3 on SP140870 (previously part of Lot 2 on YK11) ("the Merluna Lease"), excluding areas identified as "Road 60 Wide" within that part; (g) part of Lot 1 on SP177772, ("the Leconsfield Lease"), excluding areas identified as "Road 60 Wide" within that part, but not excluding areas identified as "Road 60 Wide" and delineated by: (i) stations "A - B" on SP177772; (ii) stations "A - B" on SP148760; and (iii) from station "C" on SP148760 extending in an easterly direction to its intersection with the eastern boundary of the Determination Area; (h) that part of the Holroyd River where it adjoins a south western boundary of that part of Lot 1 on SP177772 which falls within the Determination Area, but excluding the areas identified in Schedule 4. The land and waters within the road areas that are excluded from the Determination Area are excluded in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23B(7) of the Native Title Act 1993 (Cth) and sections 20 and 21 of the Native Title (Queensland) Act 1993 (Qld)) because they are areas where previous exclusive possession acts have occurred, accordingly native title has been extinguished in relation to the whole of the area and no claimant application to the area can be made. SCHEDULE 2 – Determination Plan (see Order 10) SCHEDULE 3 – Other interests in the determination area (see Orders 8 and 9) 1. The rights and interests of: (a) the lessee and others under a term lease being title reference No. 17669036 comprising Lot 1 on YK4; (b) the lessee and others under a term lease being title reference No. 40037990 comprising Lot 2 on SP140870; (c) the lessee and others under a term lease, being title reference No. 40037991 comprising Lot 3 on SP140870; (d) the lessee and others under a term lease being title reference No. 17668105 comprising Lot 653 on SP178000; and (e) the lessee and others under a term lease being title reference No. 40033877 comprising Lot 1 on SP177772. 2. The rights, interests, powers and responsibilities of the Cook Shire Council as a local government established under the Local Government Act 2009 (Qld) and as an entity exercising statutory powers in respect of the land and waters in its local government area. 3. The rights and interests granted by the State pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, authorities, allocations, leases, claims, agreements or other instruments granted or issued pursuant to: (a) the Mineral Resources Act 1989 (Qld) and any subordinate legislation, declarations or management plans made under that Act; (b) the Geothermal Exploration Act 2004 (Qld) and any subordinate legislation, declarations or management plans made under that Act; (c) the Forestry Act 1959 (Qld) and any subordinate legislation, declarations or management plans made under that Act; (d) the Water Act 2000 (Qld) and any subordinate legislation, declarations or management plans made under that Act; and (e) the Integrated Planning Act 1997 (Qld) or Sustainable Planning Act 2009 (Qld) and any subordinate legislation, declarations or management plans made under those Acts, as may be current at the date of this determination. 4. The rights and interests of the State pursuant to any licence, permit or authority granted or issued pursuant to the Radio Communicators Act 1992 (Cth) as may be current at the date of the determination. 5. Any other rights and interests held by the State, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination including, but not limited to, the rights and interests of the State under section 35 of the Transport Infrastructure Act 1994 (Qld) in relation to an area within Lot 1 on YK4. 6. The rights and interests of the parties under the following agreements: (a) the indigenous land use agreement ("ILUA") between Anthony Kerindun, Victor Lawrence, Hogan Shortjoe and Silas Wolmby and Cook Shire Council entitled the Wik & Wik Way – Cook Shire Council – Local Government ILUA (#3) executed on 22 August 2012; (b) the ILUA between Anthony Kerindun, Victor Lawrence, Hogan Shortjoe and Silas Wolmby and Cameron Clive Quartermaine and Doreen Ruth Quartermaine entitled the Wik & Wik Way - Watson River Pastoral Lease ILUA executed on 7 September 2012; (c) the ILUA between Anthony Kerindun, Victor Lawrence, Hogan Shortjoe and Silas Wolmby and Cameron Stuart Maclean and Michelle Margaret Maclean entitled the Wik & Wik Way - Merluna Pastoral Lease ILUA executed on 12 September 2012; (d) the ILUA between Anthony Kerindun, Victor Lawrence, Hogan Shortjoe and Silas Wolmby and John Ernest Lynch entitled the Wik & Wik Way - Kendall River Pastoral Lease ILUA executed on 30 August 2012; and (e) the ILUA between Anthony Kerindun, Victor Lawrence, Hogan Shortjoe and Silas Wolmby and The Tony and Lisette Lewis Settlement Pty Limited and Australian Wildlife Conservancy entitled the Wik & Wik Way - Piccaninny Plains Pastoral Lease ILUA executed on 29 August 2012. 7. The rights and interests of Telstra Corporation Limited: (a) as the owner or operator of telecommunications facilities within the Determination Area; (b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights: (i) to inspect land; (ii) to install and operate new telecommunication facilities; (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities; and (iv) for its employees, agents or contractors to access the Determination Area for the purposes of exercising the rights in (i), (ii) and (iii) above in respect of the telecommunications facilities in and in the vicinity of the Determination Area; (c) under any licences relating to its telecommunications facilities in the Determination Area. SCHEDULE 4 – Other areas excluded from the Determination Area (see Order 15) The following areas are wholly excluded from the Determination Area on the grounds that native title has been extinguished and cannot be claimed: 1. In relation to the Watson River Lease, Kendall River Lease and Leconsfield Lease, those parts of those areas on which any permanent improvement consisting of: (a) a house, shed or other outbuilding; (b) an airstrip; (c) a constructed dam or other constructed stock watering point, bores, turkey nest, squatters' tank or other water storage facility; (d) stockyards; or (e) trapyards, have been constructed prior to the date of this determination, and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements, in accordance with the rights of the lessees under the Watson River Lease, Kendall River Lease and Leconsfield Lease. 2. In relation to the Merluna Lease and Piccaninny Plains Lease, those parts of those areas on which any permanent improvement consisting of: (a) a shed or other outbuilding; (b) a constructed dam or other constructed stock watering point, bores, turkey nest, squatters' tank or other water storage facility; (c) stockyards; or (d) trapyards, have been constructed prior to the date of this determination, and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements, in accordance with the rights of the lessees under the Merluna Lease and Piccaninny Plains Lease. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6001 of 1998 BETWEEN: ANTHONY KERINDUN, VICTOR LAWRENCE, HOGAN SHORTJOE AND SILAS WOLMBY ON THEIR OWN BEHALF AND FOR AND ON BEHALF OF THE WIK AND WIK WAY NATIVE TITLE CLAIM GROUP Applicant AND: STATE OF QUEENSLAND, COOK SHIRE COUNCIL, TELSTRA CORPORATION LIMITED, AUSTRALIAN WILDLIFE CONSERVANCY, THE TONY AND LISETTE LEWIS SETTLEMENT PTY LIMITED, JOHN ERNEST LYNCH, CAMERON STUART MACLEAN and MICHELLE MARGARET MACLEAN, CAMERON CLIVE QUARTERMAINE and DOREEN RUTH QUARTERMAINE Respondents JUDGE: GREENWOOD J DATE: 11 OCTOBER 2012 PLACE: AURUKUN REASONS FOR JUDGMENT 1 In these proceedings, the applicants seek for themselves and on behalf of the Wik and Wik Way Peoples, a determination (with the agreement of all respondents to the application and subject to the Court being satisfied of the relevant matters), that by reason of the traditional laws acknowledged by the Wik and Wik Way Peoples, and the traditional customs observed by them, native title rights and interests as described in Orders 3 and 4 subsist in them as recognised by the common law of Australia in relation to the land and waters described in Schedule 1 to the Orders and shown on the plan in Schedule 2. 2 The 4,500 square kilometres of land and waters covered by this determination over which the Wik and Wik Way Peoples have maintained their traditional and customary connection comprises several separate areas of land and waters all subject to the grant of pastoral leases. Although each area is defined in Schedule 1 in precise terms, the areas are generally understood as the "Watson River Lease", the "Kendall River Lease", the "Piccaninny Plains Lease", the "Merluna Lease" and the "Leconsfield Lease" (also known as the "Crystalvale Lease"). The waters covered by this determination are those parts of the Holroyd and Archer Rivers which adjoin parts of the boundary of particular leases and other waters associated with the leases. 3 I will describe the nature of the native title rights and interests that subsist in the Wik and Wik Way Peoples over the land and waters covered by this determination later in these reasons. 4 This determination, made under s 87(2) of the Native Title Act 1993 (Cth), is a final determination of the subsistence of native title rights and interests in the Wik and Wik Way Peoples concerning the remaining Part B areas of land and waters over which they claim native title rights. The original Native Title Act claim was filed on 24 March 1994. Since then there have been three determinations of native title rights in the Wik and Wik Way Peoples over areas of land and waters within the original claim (Parts A and B1 and B2) and a further determination (the "4th determination") of native title over land excised in September 2001 from the original claim and made the subject of a separate application. 5 This is the fifth and final determination of the remaining Part B claim. 6 In view of the historical significance of the claims of the Wik and Wik Way Peoples, by both the coastal and inland Wik and Wik Way Peoples, and the context within which this final determination sits, it is important to set out some of the background concerning the original claim, the determinations already made, and the present claim. As to the procedural steps in the progression of the claim from 1993 (before the filing of the application under the Native Title Act), I have had regard to the contribution by Mr Philip Hunter, the solicitor for the Wik Peoples since 1993, to the Butterworths 1997 publication edited by Mr Hiley QC entitled "The Wik Case, Issues and Implications". 7 On 30 June 1993 before the commencement of the Native Title Act 1993 (Cth), the Wik Peoples supported by the Cape York Land Council commenced proceedings in the Federal Court of Australia seeking, among other things, a declaration that they held, in accordance with the principles established in Mabo v Queensland (No. 2) (1992) 175 CLR 1, Aboriginal title and possessory title over approximately 28,000 square kilometres of traditional land and waters in an area south of Weipa and lying between the Embley and Edward Rivers on the western side of Cape York Peninsula extending inland to areas almost as far as Coen in the eastern Cape. The Wik Peoples sought a declaration, among a range of other extensive relief, that their Aboriginal title and possessory title had not been impaired or extinguished by the grant of particular pastoral leases and that their rights continued to co-exist with the interests of the lessees. 8 Before mentioning further aspects of that claim and its progression, it is important to note the following matters concerning the nature of the interests in the claim area and aspects of the connection of the Wik and Wik Way Peoples to the land and waters of the broader claim area under the original application and then as that claim area became amended and determinations were progressively made. 9 The area of land and waters the subject of the 30 June 1993 claim reflected a range of tenures and interests. They included land the subject of leases to Aboriginal people, Deeds of Grant in Trust for Aboriginal people, National Park land, vacant Crown land, land subject to pastoral leases and land the subject of special bauxite mining leases issued under an agreement between Commonwealth Aluminium Corporation Pty Limited (later Comalco Aluminium Limited, "Comalco") and the State of Queensland in 1957 (the "Comalco Agreement") and ratified under the Commonwealth Aluminium Corporation Pty Limited Act 1957 (Qld) (the "1957 Act"), and also land subject to bauxite mining leases in favour of Pechiney Holdings Pty Ltd ("Pechiney"). 10 The area between the Embley and Edward Rivers takes in the Watson, Archer, Kendall and Holroyd rivers among other rivers and waterways. Dr Sutton has undertaken extensive anthropological work in the area the subject of the claims of the Wik and Wik Way Peoples over a long period of time. Dr Sutton is a distinguished anthropologist, an Honorary Member of the Division of Anthropology of the South Australian Museum, formerly Head of that Division from 1984 to 1990, formerly a Nuffield Fellow in the Department of Anthropology at the University of Cambridge, Affiliate Professor of the School of Earth & Environmental Sciences at the University of Adelaide, an anthropologist who has worked with Aboriginal people since 1969 and an expert who is extensively familiar with languages from the western and eastern parts of Cape York Peninsula. 11 I have had the benefit of reading Dr Sutton's extensive report of October 2008 and his further detailed report of July 2012 annexed to his affidavit of 26 July 2012. 12 In these reports, Dr Sutton examines the nature and extent of the anthropological, historical, linguistic and genealogical record of connection and traditional and customary practices of the Wik and Wik Way Peoples throughout areas of western Cape York both along the coastal sections of the western Cape and the inland areas of land and waters. 13 These reports contain an extensive examination of Wik Totemic clans characterised as a social category formed on a principle, for the most part, of 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 Wik Peoples; and a detailed examination of the traditional practises of the Wik Way Peoples. Dr Sutton's reports contain an extensive discussion of the nature and content of the traditional rights acknowledged, and traditional customs observed, by the Wik Way Peoples and the "order and character" of those rights and customs. 14 Dr Sutton has also had regard to significant anthropological research and investigation work conducted on the same topics by Dr David Martin. Dr David Martin resided in the region from 1976 to 1983 and undertook an anthropological mapping exercise from 1985 to 1988. Apart from the work of these anthropologists, the record includes the account in 1897 of Archibald Meston's visit to the lower and upper Embley River and his noting of Aboriginal place names and the identification of particular parts of the land with particular groups of Aboriginal peoples; Nicholas Hey's excursion in 1901 into the Archer River area from the Weipa Mission and his engagement with over 100 Aboriginal people; the long-term fieldwork of Ursula McConnel (based at Aurukun) in 1927, 1928 and 1934 including coastal and extensive overland fieldwork; long-term fieldwork of Donald Thomson (based at Aurukun) in 1928 and 1932-1933 around Aurukun and along the Archer River; the fieldwork of Lauriston Sharp around the Edward and Mitchell Rivers in the 1930s; the work of John Taylor at Edward River in 1968; the work of John von Sturmer with the Southern Wik Peoples in 1969 and the joint work with Athol Chase in 1976 and 1977 in undertaking mapping of territoriality and totemism in the region; and, the work of an archaeologist Roger Cribb and also the work of Diane Smith. 15 Important linguistic studies conducted among Wik and Wik Way Peoples were undertaken by Ursula McConnel and Donald Thomson in the 1920s and 1930s. Professor Kenneth Hale of the Massachusetts Institute of Technology conducted a major comparative survey of languages of the Wik and Wik Way Groups in 1960. Professor Hale prepared a two part paper addressing the linguistic evidence demonstrating the length of time these languages have been used and spoken in the claim areas as framed by the principal determination application filed under the Native Title Act in 1994. John von Sturmer undertook a study of Wik and Wik Way dialects and Dr Sutton also conducted a survey of Wik languages. 16 These other matters should be noted. 17 First, within the broader Wik region is the community of Aurukun. Aurukun was founded in 1904 by Moravian Missionaries. Wik and Wik Way Peoples from the lower Archer River came into contact with the Mission almost immediately. Over time, the Mission engaged with Wik and Wik Way Peoples over the entire field of the extensive Mission Reserve including a substantial group of inland or bush-dwelling Peoples from land in the upper Kendall and Holroyd River areas and also the upper Holroyd and Edward River areas. The Moravian Missionaries at Aurukun (particular Richter and Holmes) maintained the "historically deepest" (relevant for the present Determination Area) birth records extending back to 1891. 18 Second, Missionaries William and Geraldine MacKenzie at Aurukun from the 1920s to the 1960s kept a meticulous set of records of Wik and Wik Way Peoples including a large set of data-cards containing details of each person's name, date and place of birth and death, and references to major site names or area names revealing the local "clan estate" or "homeland area" for each individual. In some of the genealogies for people from the Wik Way area, the data-cards include the names of parents and people born in the period 1900 to 1910 with birthdates of grandparents around 1875 to 1885. 19 Third, in 1938 at the southern end of the Reserve or broad original claim area, Joseph Chapman established the Church of England's Edward River Mission now called Pormpuraaw. The Mission records therefore began later and those records are not as relevant as the Aurukun records so far as the present determination application is concerned. 20 Fourth, apart from the Mission records, archaeological evidence (including shell mounds and carbon dating of shell beds) shows occupation from areas around the eastern or upper Hey River (south of Weipa between the Embley and Watson Rivers) and flood plains across the broader claim area by Aboriginal people for thousands of years. 21 Fifth, in 1606 the crew of the Duyfken under Willem Jansz sailed down the west coast of Cape York Peninsula for 350 kilometres turning back from Cape Keer-weer (mapped and named by Jansz). Jansz observed and engaged with coastal Aboriginal people at Pennefather River. Carstenz sailed beyond Cape Keer-weer in 1623 (the ships Pera and Arnhem) on 14 April 1623 and noted great volumes of smoke in the Holroyd-Edward River area. Carstenz's men engaged with coastal Aboriginal people in the Edward River area, and extensively so, on 7 May 1623, in a coastal area between the Love River (below the Archer River south of Aurukun) and Cape Keer-weer, and at the Archer River area the next day. Matthew Flinders observed smoke from the same areas and observed that the area was "well-peopled". In 1864 and 1865 the Jardine brothers traversed Cape York Peninsula from south to north and recorded contact with Aboriginal people of the Wik region between the Holroyd and Kendall River areas. 22 All of this material supports and confirms the views reflected in the reports of Dr Sutton to this effect which I accept. 23 First, the members of the Wik and Wik Way Peoples are descended from a traditional society in occupation at the time of sovereignty (and well before) of the land and waters the subject of this determination application and thus the Determination Area. 24 Second, the society in occupation of the Determination Area at sovereignty observed traditional laws and customs which have continued to be recognised and acknowledged and observed by members of the Wik and Wik Way Peoples and their predecessors. 25 Third, by reason of their continued acknowledgement, recognition and observance of these traditional laws and customs, the members of the Wik and Wik Way Peoples and their predecessors have maintained a connection to the land and waters of the Determination Area. 26 Fourth, the activities undertaken by members of the Wik and Wik Way Native Title Claim Group on the Determination Area are referable to the native title rights and interests identified in the determination as regulated by their traditional laws and customs. 27 These anthropological, historical, linguistic and genealogical considerations among other questions of fact and law resulted in the Court making determinations of native title rights in the Wik and Wik Way Peoples over the Part A and Parts B1 and B2 areas on 3 October 2000 and 13 October 2004, and a further determination on 29 July 2009. Those determinations represent areas of land and waters of approximately 20,400 square kilometres of traditional land and waters in the Aurukun Shire, the northern part of the Pormpuraaw Deed of Grant in Trust, part of the Napranum Deed of Grant in Trust to the south of the Embley River, a number of term pastoral leases, unallocated Crown land and the land over which bauxite mining leases have been granted south of the Embley River. 28 These factors of a recognised traditional society at sovereignty in occupation of land and waters between the Embley and Edward Rivers, observing identified traditional laws and customs as the source of particular native title rights and interests subsisting in the Wik and Wik Way Peoples by reason of their continuing connection to the land and waters, led to the filing of the first claim by the Wik Peoples based on the principles identified in Mabo (No. 2) on 30 June 1993 as already mentioned. 29 On 9 February 1994, the Wik Peoples sought an order that the proceedings commenced on 30 June 1993 be adjourned generally having regard to particular undertakings given by them not to press that application, so as to enable them to make an application for a determination of native title rights and interests under the Commonwealth Parliament's legislative response to the principles for determining native title identified by the High Court in Mabo (No. 2). The 30 June 1993 proceedings were adjourned by Drummond J generally and on 24 March 1994 an application for a determination of native title together with a claim to compensation was filed with the National Native Title Tribunal (the "Tribunal") under the provisions of the Native Title Act 1993 (Cth). 30 On 26 May 1994, Drummond J ordered that certain preliminary questions arising out of the application be set down for determination at a hearing later in that year. Those questions, among other things, concerned the extent of any limitations on the constitutional power of the State to extinguish native title rights and the scope of the grant by the State of special bauxite mining leases to Comalco and Pechiney under the Comalco Agreement as ratified by the 1957 Act and under the Aurukun Associates Agreement Act 1975 (Qld). 31 However, on 14 July 1994 the Wik Peoples applied for leave to amend their claim and also sought and obtained leave to join 10 lessees under particular pastoral leases as respondents to the proceeding. On 2 September 1994, Drummond J ordered that the limitation of power questions be reframed. The Court also set down for separate determination questions concerning the relationship between the rights of the traditional native title holders over parts of the land and waters of the claim area and the "interest" of a lessee under a pastoral lease of that land. The particular lease in question was the "Holroyd Pastoral Holding Lease". 32 The questions to be determined were these: (2) If at any material time aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the [Holroyd River Holding ("Pastoral Lease")]: (a) Is the Pastoral Lease subject to a reservation in favour of the Wik Peoples and their predecessors in title of any rights or interests which might comprise such aboriginal title or possessory title which existed before the New South Wales Constitution Act 1855 ("Imp.") took effect in the Colony of New South Wales? (b) Does the pastoral lease confer rights to exclusive possession on the grantee? If the answer to (a) is "No" and the answer to (b) is "Yes": (c) Does the creation of the Pastoral Lease that has these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such aboriginal title or possessory title of the Wik Peoples and their predecessors in title which existed before the New South Wales Constitution Act 1855 ("Imp.") took effect in the Colony of New South Wales? (d) Did the grant of the Pastoral Lease necessarily extinguish all incidents of aboriginal title or possessory title of the Wik Peoples in respect of the land demised under the Pastoral Lease? 33 On 16 September 1994, Drummond J ordered that the Thayorre People be joined as respondents to the claim. The Court also set down for determination questions in the same terms set out above in relation to two Mitchelton Pastoral Holding Leases. 34 The hearing of the preliminary questions took place in October and December 1994 and although a mediation of the overall native title determination application under s 61(1) of the Native Title Act took place during the course of an adjournment of the hearing, the matter did not resolve. 35 On 29 January 1996, Drummond J determined each of the preliminary questions adversely to the Wik Peoples and Thayorre People (Wik Peoples v Queensland (1996) 63 FCR 450; 134 ALR 637). Leave to appeal to the Full Court was granted by the Federal Court on 22 March 1996. The appeal was removed into the High Court on 15 April 1996 pursuant to Orders made by Brennan CJ, McHugh and Gaudron JJ under s 40 of the Judiciary Act 1903 (Cth). 36 The appeals on each question were heard by the Full Court of the High Court on 11, 12 and 13 June 1996. Prior to the commencement of the hearing the issues were narrowed so that the pastoral lease questions were the principal matters for determination by the High Court. Apart from the parties with a direct interest in the appeal such the State of Queensland, the Commonwealth and other respondents to the principal application, interveners in the appeals included all of the State Attorneys-General (with the exception of New South Wales), the Attorney-General for the Northern Territory and Aboriginal groups and Land Councils in Western Australia and the Northern Territory. The Aboriginal and Torres Strait Islander Commission, which was the lessee of the Coen River Pastoral Holding within the claim area supported the submissions of the Wik Peoples. 37 In the result, the Wik Peoples established in Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1; 141 ALR 129, the proposition by majority in the separate judgments of Toohey, Gaudron, Gummow and Kirby JJ that the granting of each pastoral lease in issue under the Queensland legislation (whether or not the lease had expired or had been terminated) did not necessarily extinguish all native title rights and interests that might subsist in the Wik Peoples over the claimed land and waters. Of course, at that time the content of the native title rights and interest of the Wik Peoples had not been determined in respect of any part of the land and waters the subject of the claim. 38 The Wik Peoples also established the proposition subsequently affirmed in Western Australia v Ward (2002) 213 CLR 1 in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at [78], [82], [215] and [234] that the question of whether each native title right or interest comprising the bundle of native title rights of the traditional owners is impaired or extinguished by the grant of a pastoral lease (or a mining lease) under a particular enactment, is to be determined by an "inconsistency of rights" test otherwise known as an "inconsistency of incidents" test. That test involves an objective comparison of the rights granted under the relevant Act and instruments to the lessee or grantee with each of the native title rights held by the Aboriginal people. One or more or all of the native title rights might be capable of co-existence with rights granted under a pastoral lease, a mining lease or some other right granted to a third party in the exercise of executive or legislative power. 39 The Wik People thus established that the mere grant of the lease or other interest does not necessarily extinguish all native title rights. Moreover before the objective inconsistency analysis is undertaken, the Act under which the third party grant is made or "created" must be properly construed and in the absence of "clear and unambiguous words" or in the absence of "plain words", the Act is not to be construed as intended to apply in a way which will "extinguish or diminish rights under common law native title" (Wik, Brennan CJ at 85, Wik, Gaudron J at 209; Mabo (No. 2), Brennan J at 64 (Mason CJ and McHugh J agreeing); Mabo (No. 2), Deane and Gaudron JJ at 111 and Toohey J at 196). Each particular third party grant must, of course, be compared with each of the relevant native title rights or interests in issue, on a case by case basis. 40 The application of the Wik and Wik Way Peoples was remitted to the Federal Court for determination. 41 The application was amended on 31 August 2000. 42 On 3 October 2000, Drummond J determined (with the agreement of all eight respondents after various negotiation processes) that part of the claim area (called Part A) comprising lands (and inland waters) that had always been unallocated Crown land or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal people (subject to particular fishing permits granted under Queensland legislation), were subject to the communal group and individual native title rights and interests of the Wik and Wik Way Peoples as common law holders, as recited in Orders 3(a) to (i) made that day: Wik Peoples v State of Queensland & Others [2000] FCA 1443. 43 The remaining Part B area of the Wik and Wik Way Peoples claims comprised lands and waters held under seven pastoral leases and four mining leases. 44 Further negotiations took place concerning these titles and interests with all the interested respondents. The issues arising under the Part B claims were mediated involving the applicants and 17 respondent parties which resulted in two consent determinations made by Cooper J on 13 October 2004: Wik Peoples v State of Queensland & Others [2004] FCA 1306. 45 The first determination recognised the exclusive native title rights of the Wik and Wik Way Peoples (subject to the identified "other interests") of possession, occupation, use and enjoyment of the lands and waters in particular parts of the claim area. Six extensive areas of land and waters are identified on the maps. The second determination recognised the non-exclusive rights of the Wik and Wik Way Peoples in other parts of the claim area also identified on the maps. 46 The area of land and waters covered by the two determinations made by the Court on 13 October 2004 represent approximately 12,530 square kilometres of the claim area. The determinations took effect on 24 March 2005. The 2004 determinations recognised the subsistence of native title rights in the Wik and Wik Way Peoples over the land and waters of the Holroyd leases and the Mitchelton leases which were the subject of the questions considered by the High Court in Wik in 1996. 47 Other areas of land and waters within the claim area remained subject to further claims. 48 These claims, the earlier determinations and the present determination, were and are made in what is called the main application before the Federal Court (QUD 6001 of 1998) after transfer of the original claim filed on 23 March 1994 from the Tribunal to the Federal Court of Australia for constitutional reasons reflected in the principles established in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. However, the main application was amended on 7 September 2001 to remove any claim for a determination of native title rights in land and waters the subject of an Area Indigenous Land Use Agreement ("ILUA") called the "Western Cape Communities Co-Existence Agreement") made between the State, Rio Tinto Aluminium Limited ("Rio Tinto"), the Cape York Land Council, the Council of the Shire of Aurukun, three Aboriginal Councils and a number of traditional owners. The land and waters of the Co-Existence Agreement was the subject of a separate determination application filed on 14 September 2001. 49 On 29 July 2009, the Court determined that native title rights subsist in the Wik and Wik Way Peoples in the land and waters the subject of that claim: Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306. The native title rights and interests are the non-exclusive rights set out at Orders 3 and 4 in the qualifying context of all of the Orders made as part of that determination. The area of land and waters the subject of the 29 July 2009 determination comprises, put simply, the special bauxite leases held by Rio Tinto to the south of the Embley River. 50 The remaining Part B claim the subject of this determination concerns inland land and waters of the claim area generally described by reference to the titles of the pastoral leases and the waters associated with those leases earlier mentioned. The respondent parties to the application are the State of Queensland, the Cook Shire Council, Telstra Corporation Limited, Australian Wildlife Conservancy, John Ernest Lynch, Cameron Stuart MacLean, Michelle Margaret MacLean, Cameron Clive Quartermaine, Doreen Ruth Quartermaine and Tony and Lisette Lewis Settlement Pty Limited. A number of parties including the Commonwealth of Australia, some Aboriginal Shire Councils and parties reflecting mining, fishing and other pastoral interests have withdrawn as respondents from this remaining determination application. 51 I am satisfied having regard to the reports of Dr Sutton that native title subsists in the Wik and Wik Way Peoples in the land and waters of the Determination Area in accordance with the traditional laws acknowledged, and traditional customs observed, by them as the common law holders. 52 In Western Australia v Ward at [14], Gleeson CJ, Gaudron, Gummow and Hayne JJ recognise the "fundamental truth" that the relationship Aboriginal Peoples have with their land is essentially "spiritual" or "religious" and one of the difficulties in isolating and determining each of the rights and interests comprising the native title rights of a People is, as the High Court observes in Ward at [14], "[translating] the spiritual or religious into the legal". The source of that translation lies in the traditional laws and customs acknowledged and observed by the People, not the Native Title Act itself (Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at [75] and [76] per Gleeson, Gummow and Hayne JJ). 53 In Ward, the majority said this at [20]: Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is stated in par (c) of s 223(1). This is the "recognition" of rights and interests … [original emphasis] 54 The rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the Wik and Wik Way Peoples over the land and waters of the Determination Area with which they have maintained their connection, are these. As to the lands, the non-exclusive right to: (a) access, move about in and on and be present on, and Camp on, the Determination Area; (b) take and use the Natural Resources of the Determination Area for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes; (c) maintain and protect from harm by lawful means sites and places of significance in the Determination Area; (d) maintain Springs and Wells in the Determination Area for the sole purpose of ensuring the free flow of Water; (e) conduct ceremonies and engage in cultural activities on the Determination Area; (f) hunt and gather in, on and from the Determination Area for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes; and (g) teach the physical and spiritual attributes of sites and places of significance and areas of importance in the Determination Area, and the right to inherit and succeed to the native title rights and interests. 55 As to the waters, the non-exclusive right to: (a) hunt and fish in or on, and gather from, the Water for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes; and (b) take and use the Water for non-commercial: (i) cultural purposes; (ii) personal purposes; (iii) domestic purposes; or (iv) communal purposes. 56 The native title rights and interests are subject to the matters set out at Orders 5, 6 and 7 and the rights of "others" set out at Orders 8 and 9 and Schedules 3 and 4 and, in particular, the rights and interests of lessees of the nominated pastoral leases. 57 I am satisfied that each of the matters identified at s 87(1)(a), (b) and (c) of the Native Title Act are satisfied. 58 I am satisfied that the proposed Orders forming the basis of the agreement between the parties ought to be made, in the exercise of the power conferred under s 87(2) of the Native Title Act, in the exercise of the Court's jurisdiction under s 81 in final resolution of the remaining parts of the application made under ss 13(1) and 61 of the Native Title Act. 59 I am satisfied that the Orders address each of the matters relevantly arising under s 225 of the Native Title Act for the purposes of s 94A of that Act. 60 Order 11 provides that the native title rights are not to be held in trust. 61 By Order 11(b), Ngan Aak-Kunch Aboriginal Corporation RNTBC (the "Body Corporate") 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 under s 57(3) after becoming a Registered Native Title Body Corporate. A representative of the Wik and Wik Way common law holders, Hogan Short Joe, nominated the Body Corporate for the purposes of s 57(2)(a)(i) on 9 August 2012. The written consent of the Body Corporate was obtained on 10 August 2012 for the purposes of s 57(2)(a)(ii). The Court determines for the purposes of s 57(2)(a)(iii) that the Body Corporate is to perform the s 57(3) functions. 62 The Body Corporate was formed according to its objects to be the subject of determinations under s 57 and to be a Registered Native Title Body Corporate in relation to determinations under the Native Title Act. I am satisfied that the Body Corporate is a prescribed body corporate for the purposes of s 57 of the Act. 63 It follows from all of these factors, by reason of the traditional laws and customs of the Wik and Wik Way Peoples recognised, practised and observed in connection with the land and waters of the Determination Area by the ancestors of the claimant Peoples and recognised, observed and practised by the descendents of those Peoples continuously over time, that the native title rights and interests as set out in the content of all the Orders and discussed in these reasons, subsist in the Wik and Wik Way Peoples in the land and waters of the Determination Area. 64 It also follows that the common law of Australia recognises those rights and interests sourced in the traditional laws and customs of the Wik and Wik Way Peoples. 65 Having regard to all of these matters, I make and publish today the Orders determining the existence and subsistence of the native title rights and interests in the Wik and Wik Way Peoples in the land and waters of the Determination Area. 66 In conclusion, it should be recognised that this is a proud day for the Wik and Wik Way Peoples and brings to a conclusion the determination of the remaining parts of the claim area recognising the native title rights and interests of the Wik and Wik Way Peoples in, particularly, the inland land and waters of the Determination Area. The Wik and Wik Way Peoples commenced these claims in a formal sense on 30 June 1993 in asserting common law native title rights under the principles established by the High Court in Mabo (No. 2). Their claims were then made the subject of claims under the Native Title Act 1993 (Cth) according to the principles reflected in that Act and particularly s 223 of that Act and progressed to conclusion in the way I have described. 67 I also want to acknowledge that this determination has been brought about by the concerted efforts of the parties to reach an agreement that recognises the native title rights of the Wik and Wik Way Peoples but also recognises the rights of others as set out in the Orders. I particularly want to acknowledge the long term commitment and energy of Mr Philip Hunter, the solicitor for the Wik and Wik Way Peoples, in progressing this matter to a concluded agreement and his efforts over many years since 1993 in acting for and on behalf of the Wik and Wik Way Peoples. I also want to acknowledge the role Mr Mark Boge has played on behalf of pastoral lessees in representing their collective interests and in contributing to the resulting agreement. I cannot over-emphasise the importance of ensuring that those parties with a common interest such as a group of pastoral lessees are, if possible, represented in negotiations of this kind by professional advisers experienced in native title issues and I encourage the Commonwealth, in the interests of securing mediated collective outcomes to extend the funding for the representation of such parties. 68 Accordingly, I today publish the Determination Orders and the reasons in support of those Orders. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 11 October 2012