Editors --- "Cape York Peninsula Heads of Agreement - Digest" [1996] AUIndigLawRpr 65; (1996) 1(3) Australian Indigenous Law Reporter 446

Hopevale Heads of Agreement

Since 1994 the Aboriginal community of Hopevale on Cape York Peninsula has been divided by territorial disputes arising out of attempts by individual clans to define claim boundaries for the purpose of native title applications. Under the Hopevale Heads of Agreement the eleven traditionally affiliated clans of the Hopevale Deed of Grant in Trust (DOGIT) area have overcome the vexing issue of clan boundaries by agreeing to make a single native title application together, while agreeing to respect each others' rights over individual clan estates. The agreement expresses a commitment by the parties to the pursuit of native title rights collectively, subject to the operation of the laws of the Commonwealth and Queensland and the local government functions of Hopevale Aboriginal Council. It recognises the rights of the clans to conduct traditional activities on each other's clan estates as well as confirming that Aboriginal historic residents of Hopevale are entitled to enjoy access to clan estates for specified purposes. The agreement establishes a structured process for negotiation where disputes arise between clans in the region, with matters being referred to an independent mediator where clan elders are not able to find a resolution.

While the agreement embodies a commitment to the collective pursuit of rights, it stipulates that each clan will hold and administer its title separately.

Under the agreement the parties have also resolved to lodge an application for the transfer of the Hopevale DOGIT (not including the town of Hopevale) to inalienable freehold under the Aboriginal Land Act 1991 (Qld) in order to obtain royalties for traditional owners affected by the Cape Flattery silica mine.

The agreement was signed in Cooktown, Queensland on February 21, 1996.

HEADS OF AGREEMENT between:

Binthi Warra and Dharrpa Warra and Dingaal Warra and Gamaay Warra and Ngaatha Warra and Ngurrumungu Warra and Nguyumbarr Nguyumbarr Warra and Nukgal Warra and Thaniil Warra and Thitharr Warra and Thuppi Warra ('the Aboriginal clans')

We, the representatives of the Aboriginal clans, agree as follows:

1. That the Aboriginal clans will pursue recognition of our native title rights together.

2. We agree that we will pursue native title rights of exclusive, possession, occupation, use and enjoyment for each clan to their clan estate, subject to:

2.1 the valid operation of the laws of the Commonwealth and the State of Queensland;

2.2 the valid operation of the local government functions of Hopevale Aboriginal Council;

2.3 the continuation of any valid leases, licenses and other interests previously granted by Hopevale Council as trustee of the DOGIT;

2.4 the traditional rights of the clans to travel over, hunt, camp, fish and gather on each other's clan estates. The clans will meet to agree on rules for use of each others' estate.

2.5 the agreed rights of Aboriginal historical residents of Hopevale to travel over, hunt, camp, fish and gather, in accordance with the set of rules agreed on by the clans.

3. We agree that the native title application will exclude the township area of Hopevale where we are advised that native title has been extinguished under European law. We also agree that:

3.1 Hopevale Aboriginal Council should remain trustee of the township area;

3.2 In case there is any doubt, Hopevale Aboriginal Council will cease to be the trustee of the remainder of the DOGIT area, and will only exercise those functions over the DOGIT area which are not inconsistent with our native title rights.

4. Each of [sic] clans will hold its native title separately. Each clan will administer their own estate and affairs, including things like financial and administrative matters, and estate land management. We will also form a native title company which will have a representative from each of the clans which will deal with land matters common to two or more clans. This company will operate by rules which acknowledge our native title.

5. We agree to settle any disputes we may have between clans over land matters in the following way:

5.1 first, the elders of the clans in dispute will meet and try to settle the dispute themselves;

5.2 if the elders of the clans can't resolve the dispute, a Council of Elders will mediate the dispute;

5.3 if the Council of Elders can't settle the dispute, the clans in dispute will refer the dispute to an inexpensive arbitrator who will make a final decision which the clans in dispute will agree to abide by.

6. We acknowledge that there may be Aboriginal people living on the DOGIT on 'leases' which may not legally entitle them to stay there. We agree that the Aboriginal people living on these 'leases' can stay there.

7. We will also apply for a transfer of the Hopevale DOGIT (excluding the town of Hopevale) to inalienable freehold title under the Queensland Aboriginal Land Act to obtain the royalties available to affected traditional owners under the law.

8. We appoint Cape York Land Council as our agent to instruct Phillips Fox solicitors to make the native title and Aboriginal Land Act applications as soon as possible.

9. We are authorised by the other members of our clan to make this agreement.