Brady on behalf of the Western Yalanji Combined #5 and #7 v State of Queensland  FCA 958
|24 September 2013
|Consent Determination (Native Title Act)
|In the vicinity of Laura, Cape York Peninsula
|The Determination Area covers lands and waters in and around the Palmer and Mitchell River systems which lie to the north-west of Mt Carbine and to the south of Laura in the State of Queensland.
|Registered on the National Native Title Register of native title determinations.
|Federal Court No: QUD6003/2001; National Native Title Tribunal No: QCD2013/003.
|Western Yalanji People Combined #5 and #7
|Native Title | Recognition of Native Title or Traditional Ownership
William Steven Brady and Desmond Brickey on behalf of the Western Yalanji People Combined #5 and #7 (APPLICANTS) and
State of Queensland, Cook Shire Council, Tablelands Regional Council, Beverley Anne Kingsley, Howard Albert Kingsley, Stephen Roy Struber, David Leslie Westaway, Donald George Westaway, Helen Margaret Westaway, John William Westaway, Leslie Westaway and Dianne Rose Wilson-Struber (RESPONDENTS)
Judge: Logan J
Where made: Cairns
Determination: Native title exists in the entire determination area. It consists of exclusive and non-exclusive native title rights. This confers on the estate group members possession, occupation, use and enjoyment to the exclusion of all others over the portion of the determination area that has exclusive rights.
Native title is held by the Western Yalanji People.
Membership of the estate group is defined in Schedule Three of the determination. The Western Yalanji People are:
- the descendants of the individuals set out in Schedule Three; or
- people who are recruited by adoption into one of the above descent groups in accordance with the traditional laws and customs of the Western Yalanji People.
The exclusive native title rights over part of the determination area consist of the areas described in Part One to Schedule One of the consent determination except for in relation to water.
Non-exclusive native title rights and interests that exist over the native title area in the Determination Area include:
- in relation to water described in Part One Schedule One, the rights to hunt, fish and gather from the water, take and use both the water itself, and the natural resources of the water;
- the right of access and to travel over the native title area;
- the right to hunt, gather and fish;
- the right to gather, use, share and exchange the natural resources of the area;
- the right to take and use the water of the area;
- the right to temporarily live, and to camp on the land, and to erect temporary shelters and other structures;
- the right to light fires for domestic purposes;
- the right to conduct ceremonies in the area;
- the right to be buried and bury native title holders within the area;
- the right to maintain and protect significant cultural sites and places;
- the right to teach on the area the physical and spiritual attributes of the area; and
- the right to be accompanied onto the Determination Area by people who, though not native title holders, are spouses of native title holders, people required by traditional law and customs for the performance of ceremonies or cultural activities, or people who have rights under traditional law and custom in relation to any part of the native title area.
Non-native title rights and interests that exist within the determination area can be summarised as:
- The rights and interests of the parties under the three Indigenous Land Use Agreements (ILUAs)over the native title area and that are listed in Schedule Four. They are Western Yalanji People and Tablelands Regional Council ILUA (QI2014/003), the Western Yalanji People and Ergon Energy ILUA (QI2013/086) and the Western Yalanji and Cook Shire Council (QI2004/064);
- The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and 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 the rights to inspect land, install and operate telecommunications facilities and alter, remove, maintain, replace and ensure the proper functioning of its telecommunications facilities, for employees, agents or contractors to access telecommunications facilities in the native title area and under any license, access agreement or easement relating to its telecommunications facilities in the Determination Area;
- The rights and interests of Ergon Energy Corporation Limited as the owner and operator of any "works" as defined in the Electricity Act 1994 (Qld), as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld), and rights created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld);
- The rights and interests of the Cook Shire Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, as the trustee of any Reserves within the Determination Area and as the owner and operator of infrastructure, facilities and other improvements within the Determination Area;
- The rights and interests of the Tablelands Regional Council as the owner and operator of infrastructure, facilities and other improvements within the Determination Area, under the powers and responsibilities given by Local Government Acts to enter the Determination Area, and under any interest in land or waters within the Determination Area including any lease, licence, access agreement, easement or Reserve;
- The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld);
- The rights and interests of the holders of any leases, licences, reservations, permits easements or authorities granted under the Land Act 1994 (Qld);
- Pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld), any existing public access to waterways and surrounding areas, stock routes and areas that were public places at the end of 31 December 1993; and
- Any other rights and interests held by the State of Queensland or Commonwealth of Australia or in existence under Queensland or Commonwealth legislation.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals as defined by the Mineral Resources Act 1989 (Qld); or
- petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
The Western Yalanji Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held on trust for the native title holders..
The Western Yalanji Combined #5 and #7 Application was lodged on 23 April 2007 (QUD6003/2001) with the National Native Title Tribunal (NNTT).
The application is brought on behalf of the members of the Western Yalanji People.
At a sitting of the Federal Court at Cairns, Justice Logan awarded both exclusive native title rights over approximately 148,000 hectares and non-exclusive native title rights over approximately 74,000 hectares of land. This land includes the Western Yalanji People #4 Application.
The Court held that the determination area does not include:
- Land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established, or situated, and to which ss 23B(7) and 23C(2) and/or s 23B(7) of the Native Title Act 1993 (Cth)and s 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth);
- Mining Leases 20239 and 20257;
- Any land or waters on which there is a homestead, house, shed or other building, or an airstrip, constructed dam or any other stock watering point, bore, turkey nest, water storage facility, or stock and trap yards; or
- Pastoral Holding 14/5422 comprising Lot 14 on Plan SP250040 and commonly known as Palmerville
The Western Yalanji People #4 Application was heard together with the Western Yalanji Combined #5 and #7 Application because they are geographically proximate and entailed consideration of the same anthropological evidence concerning the Western Yalanji People.
The Western Yalanji Aboriginal Corporation administers the land on behalf of the Western Yalanji people. The Western Yalanji People's native title rights were recognised by the Federal Court on 28 September 1998 in the Western (Sunset) Yalanji determination, which was the first consent determination to be made over a pastoral property in Australia.
Minister for Natural Resources and Mines Andrew Cripps said that "achieving these native title determinations is a great outcome for both the Western Yalanji People and the wider community and something everyone can be proud of." (Andrew Cripps, 2013)
Details of Judgement
Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Western Yalanji People in relation to the land and waters covered by the Western Yalanji Combined #5 and #7 Application. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).
The court was satisfied that a determination of native title was within the power of the court.