Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 12) (Gudang Yadhaykenu determination) [2022] FCA 1177

Gudang Yadhaykenu, Cape York Peninsula in far north QLD.

The determination area comprises all of the land and waters described by lots (or parts of lots) on plan and any rivers, streams, creeks, or lakes described in Schedule 4. This area is shown in light blue on the map in Schedule 6.

The area is within the jurisdiction of the Cook Shire Council.

Registered on the National Native Title Register on 6 October 2022

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 12) (Gudang Yadhaykenu determination) [2022] FCA 1177

Between: Michael Ross, Silva Blanco, James Creek, Jonathan Korkaktain, Reginald Williams, Wayne Butcher, Clarry Flinders, Philip Port, HS (deceased) on behalf of the Cape York United #1 Claim Group (Applicant) and State of Queensland and The Commonwealth of Australia (Respondents)

Judge: Mortimer J

Determination

The Federal Court of Australia made this native title determination by consent of the parties under s 87A of the Native Title Act 1993 (Cth) (the NTA).

Native title exists in the entire determination area

Areas excluded from the determination area, including areas excluded on the basis of extinguishment, are described in Schedule 5.

These rights and interests are exercisable in accordance with traditional laws and customs of the native title holders and are subject to the laws of the State and Commonwealth.

Native title holders

Native title is held by the Gudang Yadhaykenu People.

For a detailed description of the native title holders see Schedule 1 of the Court determination via the above URL link.

Non-exclusive native title exists in the entire determination area

These rights and interests include the rights to:

• accessing, being present on, moving about on, and travelling over the area;
• living and camping on the area and for the purposes to erect shelters and other structures;
• hunting, fishing, and gathering on the land and waters of the area;
• taking the natural resources from the land and waters of the area;
• taking the water of the area for personal, domestic, and non-commercial communal purposes;
• being buried and to bury Gudang Yadhaykenu People within the area;
• maintaining places of importance and areas of significance;
• teaching on the area the physical and spiritual attributes of the area and the traditional laws and customs of the Gudang Yadhaykenu People to other Gudang Yadhaykenu People or persons otherwise entitled to access the area;
• holding meetings on the area;
• conducting ceremonies on the area;
• lighting fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose for hunting or clearing vegetation

For more detail on these non-exclusive rights, please refer to the Extract attached.

Other (non-native title) rights and interests in the determination area include the rights and interests of:

• Telstra Corporation Limited, Amplitel Pty Ltd as trustee of the Towers Business Operating Trust;
• RTA Weipa Pty Ltd under the Comalco Agreement;
• Cook Shire Council; and
• the State of Queensland.

See Schedule 2 for further information about the non-native title rights and interests.

Background

The Gudang Yadhaykenu determination was made on the same day as the determination recognising the Atambaya People's native title, and the Northern Cape York #2 identified parcels determination [1]. Together, these three determinations resolve three of the nine parts of the Cape York United #1 claim within a geographic region known as the 'Redmond Part A area' [1-2]. Given that there are multiple distinct native title holding groups within the Cape York area, the Court addressed each determination separately [3].   

Through providing connection and occupation material, the members of the Gudang Yadhaykenu Group negotiated with the State of Queensland to come to an agreement regarding their native title rights and interests in the determination area. The parties were able to file the signed agreement with the Court on 6 October 2022, pursuant to s 87 of the NTA. This determination, along with the Atambaya claim, returned more than 120,000 hectares of ancestral homelands in the northern region of Cape York (Guenzler). The Gudang Yadhaykenu claim covers nearly 120,000 hectares of land, all of which is non-exclusive (Guenzler).

Details of Judgment

Through evidence informed by historical, anthropological and archival records, as well as testimonies and a range of data, the State accepted that a credible basis exists for the Gudang Yadhaykenu People having connection and tenure, and Mortimer J accepted that the parties' submissions met the requirements of s 223 of the NTA [63]. With the State following a detailed step by step process involving considerable human and financial resources, Mortimer J was confident that the State had reached a carefully considered view [64].

Justice Mortimer was satisfied that it was appropriate to make orders under s 87A of the NTA that the Gudang Yadhaykenu People hold native title interests in the determination area [62]-[64].

Native title exists in the entire determination area

Related Entries

References

Documents

Glossary