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

Binomial Name: Federal Court of Australia
Date: 6 October 2022
Sub Category:Consent Determination (Native Title Act)
Place:

Gudang Yadhaykenu, Cape York Peninsula in far north QLD.

State/Country:Queensland, Australia

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.

Legal Status:

Registered on the National Native Title Register on 6 October 2022

Legal Reference: Federal Court File No.: QUD673/2014; National Native Title Tribunal File No.: QCD2022/011
Alternative Names:
  • Gudang Yadhaykenu
  • Subject Matter:Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2022/1177.html?context=1;query=Ross%20on%20behalf%20of%20the%20Cape%20York;mask_path=au/cases/cth/FCA
    Summary Information:

    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.

    In the case of conflict, the exercise of the non-native title rights and interests will prevail over the native title rights and interests

    Prescribed body corporate

    The Gudang Yadhaykenu Native Title Aboriginal Corporation is the prescribed body corporate. It performs the functions required under the NTA and holds the determined native title in trust for the Gudang Yadhaykenu group.

    Full text of the determination is available via the URL link above.

    Detailed Information:

    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 metthe 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 hadreached 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].

    Outcomes:

    Native title exists in the entire determination area


    Related Entries

  • Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 13) (NCY #2 independent parcels determination)[2022] FCA 1178
  • Organisation
  • National Native Title Tribunal
  • State of Queensland - Respondent
  • Telstra Corporation Limited - Respondent
  • Cook Shire Council - Respondent
  • Aurukun Shire Council - Respondent
  • Carpentaria Shire Council - Respondent
  • Douglas Shire Council - Respondent
  • Kowanyama Aboriginal Shire Council - Respondent
  • Napranum Aboriginal Shire Council - Respondent
  • Pormpuraaw Aboriginal Shire Council - Respondent
  • Wujal Wujal Aboriginal Shire Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Far North Queensland Ports Corporation Limited - Respondent
  • Australian Wildlife Conservancy - Respondent
  • The Tony and Lisette Lewis Settlement Pty Ltd - Respondent
  • Brandt Metals Pty Ltd - Respondent
  • Bowyer Archer River Quarries Pty Ltd - Respondent
  • Silverback Properties Pty Ltd - Respondent
  • RTA Weipa Pty Ltd - Respondent
  • Alcan South Pacific Pty Ltd - Respondent
  • Amplitel Pty Ltd - Respondent
  • Gudang Yadhaykenu Native Title Aboriginal Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)
  • People
  • Michael Ross & others on behalf of the Cape York United #1 Claim Group - Native Title Applicant
  • Gudang People - Native Title Claimant

  • References

    News Item
    Joseph Guenzler (11/10/22) Northern Cape York has been returned to its rightful owners

    Documents

    Document
    National Native Title Register Extract for QCD2022/011 as at 06/10/22 (Gudang Yadhaykenu determination) - ( PDF | PDF | PDF | PDF | PDF | PDF)

    Glossary

    Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Aboriginal and Torres Strait Islander (Australia) | Applicant | Respondent | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Aboriginal Corporation (Australia) | Native Title Applicants | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Registered Native Title Body Corporate (RNTBC) (Native Title Act) (Australia)