Background
The Cape York United #1 native title claim, filed in 2014, covers much of previously undetermined Cape York country. The parties sought a consent determination under s 87A of the Native Title Act 1993 (Cth) for part of that claim area, recognising the Eastern Kuku Yalanji People’s native title.
The determination area lies in the south-east of the Cape York United #1 claim area, including country south of the Annan River and north of the Daintree River. The parties used a local, traditional-owner-led process to settle group composition and boundaries with neighbouring groups. The Court considered extensive anthropological, genealogical and community evidence supporting the agreement.
The Court’s Holding
Chief Justice Mortimer made the proposed consent determination. The Court held that native title exists in the specified determination area and is held by the Eastern Kuku Yalanji People, being persons descended by birth or traditional-law-and-custom adoption from the identified apical ancestors.
The determination grants exclusive possession, occupation, use and enjoyment over listed exclusive areas, except in relation to water. Over non-exclusive areas, it recognises rights including access, camping, hunting, fishing, gathering, taking natural resources and water for personal, domestic and non-commercial communal purposes, conducting ceremonies, and protecting significant places. Those rights remain subject to Commonwealth and Queensland law and to valid other interests. The Court also appointed Jabalbina Yalanji Aboriginal Corporation RNTBC as trustee prescribed body corporate and ordered that specified ILUAs remain registered.
Key Takeaways
- The Eastern Kuku Yalanji People obtained a consent determination of native title under s 87A.
- Exclusive and non-exclusive native title rights were recognised according to the tenure and areas identified in the determination.
- Existing interests, including ILUAs, infrastructure, mining, local-government and public rights, continue to operate to the extent of any inconsistency.
Why It Matters
This is part of the ninth tranche of determinations in the Cape York United #1 proceeding. With the Eastern Kuku Yalanji and associated Western Yalanji determinations, more than 90% of the original claim area had been resolved through consent processes.
The decision illustrates the Federal Court’s approach to approving negotiated native-title outcomes where traditional owners, the State and other interest holders have developed a credible evidentiary basis and reached agreement on rights, boundaries and ongoing interests.