FEDERAL COURT OF AUSTRALIA

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 42) (Western Yalanji determination) [2026] FCA 1084

ORDERS

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth)

THE COURT NOTES THAT:

A.    Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park area within the External Boundary will be addressed after the matter has proceeded to determination.

B.    The Western Yalanji People (being the proposed native title holders described in Schedule 1 of the Determination) have indicated a desire to enter into negotiations with the State of Queensland (the State) in relation to whether s 47C of the Native Title Act 1993 (Cth) would have application to any land and waters within the External Boundary.

C.    Subject to paragraph D below, the parties agree that, if agreement is reached in accordance with s 47C(1)(b) of the Native Title Act 1993 (Cth) that s 47C is applicable to a park area, the parties would not oppose an application being brought on behalf of the Western Yalanji Aboriginal Corporation RNTBC (ICN: 3326) pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to a park area within the Determination Area for which agreement is reached regarding the application of s 47C of the Native Title Act 1993 (Cth).

D.    The agreement of the parties described in paragraph C above not to oppose an application being brought to vary the Determination in relation to a park area, is subject to the Applicant and the State having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to the park area, and any other relevant matters.

E.    The Applicant agrees that the areas listed in Schedule 5 are areas where native title has been wholly extinguished.

THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms proposed in these orders, despite any actual or arguable defect in the authorisation of the applicant to seek and agree to a consent determination pursuant to s 87A of the Native Title Act 1993 (Cth).

BY CONSENT THE COURT ORDERS THAT:

2.    Pursuant to s 199C(1A) of the Native Title Act 1993 (Cth), the Registrar is not to remove the following indigenous land use agreements from the Register of Indigenous Land Use Agreements, at least to the extent the indigenous land use agreements fall within the External Boundary:

(a)    Peninsula Developmental Road ILUA (QI2016/049); and

(b)    Western Yalanji & Cook Shire Council ILUA (QI2004/064).

3.    There be a determination of native title in the terms set out below (the Determination).

4.    Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

DEFINITIONS AND INTERPRETATION

5.    In this Determination, unless the contrary intention appears:

6.    The determination area is the land and waters described in Schedule 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

7.    Native title exists in the Determination Area.

8.    The native title is held by the Western Yalanji People described in Schedule 1 (the Native Title Holders).

9.    Subject to orders 11, 12, and 13 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are:

(a)    other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b)    in relation to Water, the non-exclusive right to take the Water of the area for personal, domestic and non-commercial communal purposes.

10.    Subject to orders 11, 12, and 13 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(c)    hunt, fish and gather on the land and waters of the area;

(d)    take the Natural Resources from the land and waters of the area;

(e)    take the Water of the area for personal, domestic and non-commercial communal purposes;

(f)    be buried and to bury Native Title Holders within the area;

(g)    maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs on the area and protect those places and areas from harm;

(h)    teach on the area the physical and spiritual attributes of the area and the traditional laws and customs of the Native Title Holders to other Native Title Holders or persons otherwise entitled to access the area;

(i)    hold meetings on the area;

(j)    conduct ceremonies on the area;

(k)    light fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(l)    be accompanied on to the area by those persons who, though not Native Title Holders, are:

(i)    Spouses of Native Title Holders;

(ii)    people who are members of the immediate family of a Spouse of a Native Title Holder; or

(iii)    people reasonably required by the Native Title Holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.

11.    The native title rights and interests are subject to and exercisable in accordance with: 

(a)    the Laws of the State and the Commonwealth; and 

(b)    the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

12.    The native title rights and interests referred to in orders 9(b) and 10 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 

13.    There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 

14.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2. 

15.    The relationship between the native title rights and interests described in orders 9 and 10 and the other interests described in Schedule 2 (the Other Interests) is that: 

(a)    the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests; 

(b)    to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title rights and interests continue to exist in their entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and

(c)    the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

THE COURT DETERMINES THAT:

16.    The native title is not held in trust.

17.    The Western Yalanji Aboriginal Corporation RNTBC (ICN: 3326), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LIST OF SCHEDULES

Schedule 1 – Native Title Holders    viii

Schedule 2 – Other Interests in the Determination Area    x

Schedule 3 – External Boundary    xv

Schedule 4 – Description of Determination Area    xviii

Schedule 5 – Areas Not Forming Part of the Determination Area    xxii

Schedule 6 – Map of Determination Area    xxvi

Schedule 1 – Native Title Holders

The Native Title Holders are the Western Yalanji People. The Western Yalanji People are those Aboriginal persons who are descended by birth, or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Western Yalanji People, from one or more of the following apical ancestors (listed alphabetically):

1.    Alena Ida (mother of Bernard Castors);

2.    Biddy Mango (aka Biddy Looney);

3.    Billy (father of Jimmy Riley and others);

4.    Buiku Buiku;

5.    Bula Burton;

6.    Charlie Curraghmore;

7.    Charlie Fox;

8.    Charlie Jubilee;

9.    Charlie Lee Cheu;

10.    Danyulgulga Lizzie;

11.    Dianna (Dinah) (sister of Mary (Maggie) Anderson);

12.    Dolly (mother of Alice Roberts and others);

13.    Dolly (mother of Charlotte Palmer and others);

14.    George Dodd (aka George Maytown);

15.    Hilda (mother of Jessie Pauletta Davis and others);

16.    Jack Burton;

17.    Jangga Dolo (aka George Maytown);

18.    Jimmy (father of Jack Lawyer and others);

19.    Jimmy Snider;

20.    Johnnie Cake (aka Johnny Stewart);

21.    Jukumu George Pegus;

22.    Kitty (mother of Jimmy Riley and others);

23.    Maggie (mother of Dave Crowley and others);

24.    Maggie (mother of George Sibley Snr);

25.    Maggie (mother of James Andrew Mossman and others);

26.    Mary (Maggie) Anderson;

27.    Molly (mother of Annie Green and Dolly Walker);

28.    Mother of Rosie Simpson nee Murray;

29.    Mujilabu Sandy Tippo (aka Deppo King);

30.    Nellie (mother of Doris Choikee and others);

31.    Ngamu Minkidji;

32.    Ngamu Yarrkin Mitchell Earl;

33.    Ngamukaia Billy Carroll;

34.    Palmer McLean (aka Old Palmer)

35.    Railu aka Mary;

36.    Rob Miller Snr;

37.    Rosie (Ross) Palmer;

38.    Ruby Barney Maytown (aka Ruby Meldrum);

39.    Sambo (father of Dave Crowley and others);

40.    Wautalunggu Maggie;

41.    Wur’purdam (aka Ngarrabulga).

Schedule 2 – Other Interests in the Determination Area

The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the Determination:

1.    The rights and interests of the parties under the following agreements registered on the Register of Indigenous Land Use Agreements:

(a)    Peninsula Developmental Road ILUA (QI2016/049); and

(b)    Western Yalanji & Cook Shire Council ILUA (QI2004/064).

2.    The rights and interests of Scott Evan Ryan granted under the Land Act 1962 (Qld) and continued under the Land Act 1994 (Qld) as the holder of rolling term lease (PH 14/5312) for pastoral purposes (also known as Olive Vale) over Lot 53 on CP887336 for that part that falls within the External Boundary.

3.    The rights and interests of Brandt Metals Pty Ltd and Mr Lance Jeffress as the holders of the following mining leases granted under the Mineral Resources Act 1989 (Qld):

(a)    ML20590;

(b)    ML20591;

(c)    ML20596; and

(d)    ML20597.

4.    The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their successors in title:

(a)    as the owner(s) or operator(s) of telecommunications facilities within the Determination Area;

(b)    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 rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(c)    for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d)    under any lease, licence, access agreement, permit or easement relating to their telecommunications facilities in the Determination Area.

5.    The rights and interests granted or available to RTA Weipa Pty Ltd (ACN 137 266 285) (and any successors in title) under the Comalco Agreement, including, but not limited to, rights and interests in relation to the “bauxite field” (as defined in clause 1 of the Comalco Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where:

(a)    “Comalco Act” means the Commonwealth Aluminium Corporation Pty. Limited Agreement Act 1957 (Qld); and

(b)    “Comalco Agreement” means the agreement in Schedule 1 to the Comalco Act, including as amended in accordance with such Act.

6.    The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):

(a)    as the owner and operator of any “Works” (as that term is defined in the Electricity Act 1994 (Qld)) within the Determination Area;

(b)    as an electricity entity under the Electricity Act 1994 (Qld), including but not limited to:

(i)    as the holder of a distribution authority;

(ii)    to inspect, maintain and manage any Works in the Determination Area; and

(iii)    in relation to any agreement or consent relating to the Determination Area existing or entered into before the date these orders are made;

(c)    to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this clause; and

(d)    in an Easement in Gross No 706422206 over Easements D, E, F, G, H, J and M on SP146387 within Lot 113 on SP161900.

7.    The rights and interests of Cook Shire Council:

(a)    under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be its Local Government Area:

(b)    as the:

(i)    lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;

(ii)    grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not;

(iii)    party to an agreement with a third party which relates to land or waters in the Determination Area; and

(iv)    holder of any estate or any other interest in land, including as trustee of any Reserves, under access agreements and easements that exist in the Determination Area;

(c)    as the owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to any:

(i)    undedicated but constructed roads except for those not operated by the council;

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities; and

(d)    to enter the land for the purposes described in paragraphs 7(a), (b) and (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 7 and paragraph 8 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 7(c) above; and

(iii)    undertake operational activities in its capacity as a local government such as feral animal control, erosion control, waste management and fire management.

8.    The rights and interests of the State of Queensland and Cook Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.

9.    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

10.    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

(a)    the Aboriginal Land Act 1991 (Qld);

(b)    the Fisheries Act 1994 (Qld);

(c)    the Land Act 1994 (Qld);

(d)    the Nature Conservation Act 1992 (Qld);

(e)    the Forestry Act 1959 (Qld);

(f)    the Water Act 2000 (Qld);

(g)    the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld);

(h)    the Mineral Resources Act 1989 (Qld);

(i)    the Planning Act 2016 (Qld);

(j)    the Transport Infrastructure Act 1994 (Qld); and

(k)    the Fire Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).

11.    The rights and interests of members of the public arising under the common law, including but not limited to the following:

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

12.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing rights of the public to access and enjoy the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

(d)    areas that were public places at the end of 31 December 1993.

13.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Schedule 3 – External Boundary

The boundary commences at a point on the southern boundary of the Kuku Warra Native Title Determination (QCD2023/010) at Longitude 144.542401° East, Latitude 15.664989° South; then extends south westerly until the junction of the Kennedy Creek and an unnamed watercourse at Longitude 144.526488° East, Latitude 15.676539° South; then generally southerly along Kennedy Creek until the intersection with the Western Yalanji People #4 Native Title Determination (QCD2013/002), also being lot 1 on CP825797 (Wulburjubur Bama Land Trust), then generally south easterly following the northern boundary of that determination until a point at Longitude 144.794800° East, Latitude 15.955978° South, also described as:

generally south easterly along the northern boundary of Lot 1 on CP825797 (Wulburjubur Bama Land Trust), then generally south easterly along the northern boundary of Lot 66 on SP245572 (Bonny Glen Holding), passing through an unnamed road corridor, until the intersection with a corner point of Lot 113 on SP161900 (Maitland Downs), also being a point on the Great Dividing Range.

then generally south easterly following the Great Dividing Range (also being the watershed between the Palmer River Basin and the Normanby River Basin) until the intersection with the southern boundary of the Cape York Representative Aboriginal/Torres Strait Islander Body (RATSIB) area, also described as:

generally south easterly along the northern boundary of Lot 113 on SP161900 (Maitland Downs) until an eastern boundary of that lot at Longitude 144.820778° East, Latitude 15.973402° South; then generally southerly along Great Dividing Range until the intersection with another corner point of Lot 113 on SP161900 (Maitland Downs) at Longitude 144.824511° East, Latitude 15.996663° South; then generally south easterly along the northern boundary of that lot and the northern boundary of lot 57 on NPW905 (Mount Windsor National Park until the intersection with the southern boundary of the Cape York Representative Aboriginal/Torres Strait Islander Body (RATSIB) area.

then generally westerly along the southern boundary of the Cape York Representative Aboriginal/Torres Strait Islander Body (RATSIB) area until the intersection with the south eastern corner of the Kunjen Olkol People Native Title Determination (QCD2024/006); then generally north westerly, northerly and easterly along the eastern external boundary of that determination until the intersection with the southern external boundary of the Possum People Native Title Determination (QCD2023/012), also being a point on the Great Dividing Range; then generally south easterly along the southern boundary of that determination and the Great Dividing Range until the intersection with the 240m contour line at Longitude 143.933793° East, Latitude 15.846898° South; then generally south easterly along that contour line until a point at Longitude 144.005017° East, Latitude 15.888762° South; then southerly until a point on the 220m contour line (representing the base of the sandstone country around Fern Hill) at Longitude 144.002625° East, Latitude 15.910606° South; then southerly and south easterly along that contour line until Longitude 144.008443° East, Latitude 15.916799° South; then south easterly until the intersection with the centreline of the Palmer River at Longitude 144.022693° East, Latitude 15.926508° South; then generally south easterly along the centreline of the Palmer River until Longitude 144.134435° East, being the northern prolongation of the western boundary of the Western Yalanji Combined #5 and #7 Native Title Determination (QCD2013/003); then southerly along that prolongation until the intersection with the north western corner of that determination, also being the southern bank of the Palmer River; then generally easterly along the northern boundary of that determination and the southern bank of the Palmer River until Longitude 144.256323° East, being the southern prolongation of the western boundary of the Western Yalanji People #4 Native Title Determination (QCD2013/002); then northerly along that prolongation and generally northerly along the western boundary of that determination until the intersection with a south eastern corner of the Possum People Native Title Determination (QCD2023/012); then generally northerly and generally easterly along the eastern and southern external boundaries of that determination and generally north easterly along the southern external boundary of the Kuku Warra People Native Title Determination (QCD2023/010) until the intersection with the south western corner of Lot 70 on SP136887 (known as Laura Danceground); then easterly, northerly and easterly along the southern boundary of that lot until its south eastern corner, also being the intersection once again with the southern boundary of the Kuku Warra People Native Title Determination (QCD2023/010); then southerly and south easterly along the southern boundary of that determination until the point of commencement.

Exclusions:

    Western Yalanji People (QCD2006/001) as determined by the Federal Court on 17/02/2006;

    Western Yalanji People #4 (QCD2013/002) as determined by the Federal Court on 24/09/2013; and

    Western Yalanji Combined #5 and #7 (QCD2013/003) as determined by the Federal Court on 24/09/2013.

(All Subject to Survey)

Data Reference and source

    Cadastral Data sourced from the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development, Qld (30th September 2025).

    Watercourse Lines sourced from the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development, Qld (5th September 2025).

    Contours – 10 metre interval sourced from the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development, Qld (27th November 2024).

    Drainage Basin – Sub Areas sourced from the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development, Qld (22nd August 2024).

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees.

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Schedule 4 – Description of Determination Area

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the tables in the parts immediately below, and depicted in the maps in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Part 1 — Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the Determination map contained in Schedule 6:

~ denoted areas to which s 47 of the Native Title Act 1993 (Cth) applies

^ denoted areas to which s 47B of the Native Title Act 1993 (Cth) applies

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the Determination map contained in Schedule 6:

Schedule 5 – Areas Not Forming Part of the Determination Area

The following areas of land and waters are excluded from the Determination Area as described in Part 1 of Schedule 4 and Part 2 of Schedule 4:

1.    Those land and waters within the External Boundary which at the time the native title determination application was made were, or had been, the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    Specifically, and to avoid any doubt, the land and waters described in paragraph (1) above includes:

(a)    the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, including, but not limited to the whole of the land and waters described as:

(b)    the land and 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) of the Native Title Act 1993 (Cth) and to which 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).

3.    Those land and waters within the External Boundary that were excluded from the Native Title Determination Application on the basis that, at the time of the Native Title Determination Application, they were an area where native title rights and interests had been wholly extinguished, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, including, but not limited to:

(a)    any area where there had been an unqualified grant of estate in fee simple which wholly extinguished native title rights and interests; and

(b)    any area over which there was an existing dedicated public road which wholly extinguished native title rights and interests.

4.    Those land and waters within the External Boundary on which, at the time the Native Title Determination Application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

Schedule 6 – Map of Determination Area

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    The parties have sought a determination of native title under s 87A of the Native Title Act 1993 (Cth), with associated orders, recognising the native title of the Western Yalanji People. This determination is being made in the same week as a determination recognising the native title of the Eastern Kuku Yalanji People. Both groups have had earlier native title determinations over different areas of their country, but these are their first determinations as part of the Cape York United #1 claim proceeding.

2    Together with a third determination being delivered on the papers and relating to the Northern Kaanju People, these two determinations form the ninth tranche of determinations made by the Court in the Cape York United #1 claim. The first tranche of determinations was made in November 2021. With the making of these two determinations, more than 90% of the original Cape York United #1 claim area will have been resolved through consent determination processes. This includes area recognised as subject to native title, and areas excluded because it has been agreed that native title has been extinguished.

3    The point to emphasise is the tremendous scale and scope of cooperative agreement making which has occurred in Cape York over the last 12 years to reach this milestone.

4    The Eastern Kuku Yalanji and Western Yalanji determinations recognise title to country in the south-east corner of the Cape York United #1 claim area, taking in parts of the town of Cooktown, with the town of Hopevale on the eastern edge of the determination areas. In general terms, the land is situated south of the Annan River and north of the Daintree River, including the upper catchments of the Laura and Normanby Rivers and areas around the communities of Wujal Wujal, Lakeland, Thornton Beach, Rossville and Bloomfield. The total area within the external boundaries of the two determination areas is just over 3,887 square kilometres.

5    Turning specifically to the Western Yalanji determination, there is a great deal of connection material which has been produced to explain why there is a credible basis for the s 87A agreement reached between the parties, and for the recognition of native title held by the Western Yalanji People. These determinations are of deep personal significance to many First Nations People, and so it is appropriate to refer to at least some of the evidence from group members filed to support the proposed Western Yalanji determination.

6    For the Western Yalanji application, and outside the other material adduced, the Cape York United #1 applicant relies on the affidavit of one of its group members, Mr John Alexander Murison. This affidavit was made in 2021. In his affidavit, Mr Murison explains that he is a member of the Cape York United #1 claim group and a Western Yalanji man through his mother’s father’s mother, Rosie Maytown Palmer.

7    Mr Murison describes his connection to country as follows:

I see my family country as being all the way from the Palmer River to the Mitchell River, Fairlight, Maytown, Jowalbinna and up to Laura. I see our family country as part of the wider Western Yalanji country. I learned this from talking with Aunty Rosie Richards, Uncle Jimmy Richards, Tommy George, Uncle Charlie Lee Cheu and Mike Ross.

When you come down the Palmer River, where it joins up with the Mitchell River, that junction is the south-western boundary of Western Yalanji country. To the south, Western Yalanji country ends on the north side of Rifle Creek. To the west of the Old Coach Road is still Western Yalanji country. I think it goes way further out to Mun Gin and Fish Creek. It has to because of the food sources and artistic activity.

Our family speaks for all that country which goes from Fairlight to Fairview to Laura. My family and our mob generally, such as the Grogans and Lee Cheus, consider Fairlight Western Yalanji, because all down here, to the north of the Fairlight homestead, is all Quinkan paintings and burial sites that we know about.

8    Mr Murison talks about his neighbours the Olkola People to the north and north-west, Djungan country to the south, Guugu Yimhidirr to the north-east of Laura, Eastern Kuku Yalanji to the east, and Koko Bera to the west. He explains customary practices about permission to go onto country:

I don’t have any right to access country outside my own unless I have permission from the people from that area. For instance, I would ask Uncle Mike Ross if he could take me out to Killarney and have a camp, to maybe see some golden shoulder parrots.

I have had people ask me for permission to come on to my country. At the Laura Dance Festival, I had someone ask me to go to Split Rock, but up and over it. I said no, you need to have a traditional owner take you up there. There are significant sites up there. I would send that person to Ang Gnarra, to the cultural centre.

9    He describes which families can speak for which areas of Western Yalanji country, and also describes the need to bring country “back to its former glory”, after the way he sees it having been degraded. Mr Murison explains customary practices about hunting and fishing, what resources are available to Western Yalanji and where, as well as the location of important sites and how some of the natural resources on country are used. He talks at some length about two burial sites, including the work that he has done in his capacity as a ranger to protect those places, and also what he hopes to do in the future (square brackets in original):

Mun Gin Creek has some burial sites there – bark coffins up in the ledges. You can still see the long skeletal bones in the bark wrapping. When we see them, we don’t want to spend too much time there. I log the site in my own personal register. I don’t touch it because it's just custom or law. I don’t know if something bad would happen. It’s all about your intentions and motives. Barna definitely believe that something bad would happen if you touched them. Mun Gin Creek is a pretty hard and inaccessible site so I don’t go there too often.

I believe Fish Creek to be a women’s burial site. There is lots of rock art there. We [Western Yalanji Rangers] clean the site by clearing the timber debris and leaf litter, because if we don’t there’s a risk of fire and the sandstone that holds the rock art might exfoliate, it might crack, peel and flake off.

…

The whole Looking After Country project is about bringing awareness and we need to bring the women back to [the Fish Creek women’s] spot. We do a minimal amount of clearing so that it's fire proofed. The intention is to bring the women back there.

10    Mr Murison’s affidavit is rich in its accounts of the family histories, customary laws and practices and country of the Western Yalanji People.

11    Taking into account material of this kind, as well as the large amount of material that has been collated in order to provide a credible basis for the parties’ agreement, and for this negotiated outcome, for the reasons set out below, the Court is satisfied it is appropriate to make the orders sought, and that it is within the power of the Court to do so.

THE MATERIAL BEFORE THE COURT

12    This application for consent determination was supported by a principal set of submissions filed by the applicant on 13 July 2026. The State also filed submissions on 15 July 2026. Each set of submissions addressed both the Eastern Kuku Yalanji and the Western Yalanji determinations. Both sets of submissions were helpful and the Court has adopted much of them in these reasons.

13    The applicant relied on three affidavits. First, an affidavit of Michelle Amanda Cioffi dated 13 July 2026 (Cioffi affidavit). Second, [5]–[30] of an affidavit of Ms Kirstin Malyon affirmed on 27 October 2021 and filed earlier in this proceeding, regarding the re-authorisation process undertaken by the applicant in the period from April to September 2021 (2021 Malyon affidavit). Third, an affidavit of Louise Ngahia Keepa dated 13 July 2026 (Keepa affidavit).

14    Ms Cioffi is the Principal Legal Officer of the Cape York Land Council and has carriage of the Cape York United #1 claim. Ms Keepa is a Deputy Principal Legal Officer at the CYLC and works under the supervision and direction of Ms Cioffi.

15    In the Cioffi affidavit, Ms Cioffi deposes to two processes vital to the successful resolution of claims in the Cape York United #1 claim proceeding top this point; namely the process for determining appropriate group and boundary descriptions. She describes the way in which the s 87A agreements were approved, including pre-authorisation and authorisation meetings. She also deposes to how the relevant Prescribed Body Corporates were nominated for the determination areas. She annexes to her affidavit the nomination for each PBC and its consent to act as the relevant PBC for the determination area.

16    In the Keepa affidavit, Ms Keepa deposes to and annexes the material relied on by the applicant for the purposes of the s 87A agreement and this application. In summary, that material comprised expert reports authored variously by Mr Ray Wood, Dr David Thompson, Dr Kevin Murphy and Dr Anthony Redmond. There were also 9 reports by Ms Kate Waters, whose careful and thorough genealogical work has been indispensable to the successful negotiated resolution of so many of the native title determinations made in the Cape York United #1 claim. The Keepa affidavit also attached the affidavit of Mr Murison.

PROCEDURAL HISTORY

17    The Cape York United #1 claim was filed in this Court in December 2014. It covers various types of tenure, including pastoral leases, protected areas, reserves and areas of unallocated State land. It is the largest native title claim currently before the Court and covers most of the previously undetermined parts of Cape York.

18    Some of the complexities of the Cape York United #1 claim are summarised in the Court’s reasons for the Kuuku Ya’u and Uutaalnganu (Night Island) determinations made in November 2021: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464 at [3], [12]–[19], [30]–[37]; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465 at [3], [13]–[20], [28]–[35].

19    Since that first tranche of two consent determinations, seven further tranches of consent determinations have been made (prior to the present, ninth tranche). A summary of the previous tranches of consent determinations is set out in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 41) (Eastern Kuku Yalanji determination) [2026] FCA 1083 at [21].

20    There has been an extraordinary amount of work undertaken principally by the applicant, their legal representatives, the CYLC and the State, to complete all these agreed determinations, over what is in this jurisdiction a relatively short period of time.

The authorisation of the Cape York United #1 applicant

21    The applicant’s authority to enter into the s 87A agreement for this determination area stems from the re-authorisation process which occurred in the Cape York United #1 claim proceeding between April and September 2021. This process is described in the 2021 Malyon affidavit, and the Court described and endorsed it in the Kuuku Ya’u determination at [30]–[37] and the Uutaalnganu determination at [28]–[35].

22    In the Kuuku Ya’u determination at [38]–[50] and the Uutaalnganu determination at [36]–[48], I explained why I considered it also appropriate to make orders under s 84D(4) of the Native Title Act to deal with any uncertainty arising from differences between the claim group description in the original Cape York United #1 application and those in the proposed s 87A determination at a more local level, in light of the changes to the resolution of native title claims within the proceeding, and the re-authorisation process.

23    Those orders were made under s 84D(4) out of an abundance of caution and to avoid any doubt about the validity of the s 87A determinations. Similar orders are sought in this determination. The State agreed with this proposal. For the reasons given at [50] in Kuuku Ya’u determination and [48] in Uutaalnganu determination, I continue to consider such orders appropriate.

AUTHORISATION FOR THE DETERMINATION AREA

24    As in previous s 87A processes in this proceeding, there were two vital decision-making processes involving claim group members: the process to settle boundaries between the Western Yalanji People and their neighbours; and the process to settle group description and composition, by identification of apical ancestors. The Cioffi affidavit explains these processes in great detail. Both these processes reflect innovative and consistent processes designed to involve group members at local level, and to be as faithful as practicable, in the context of an enormous claim, to traditional owner led agreement making principles.

25    The Boundary Identification Negotiation and Mediation Process was adopted by the applicant, through the CYLC, in April 2020 to deal with the reality existing within the Cape York United #1 claim area that distinctly identifiable groups hold interests in that area: see Kuuku Ya’u determination at [18], [25]–[26] and Uutaalnganu determination at [19], [23]–[24]. The BINM Process was adopted for both the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups, as set out in the Cioffi affidavit at [51]–[69]. The State (at [26] of its submissions) appropriately acknowledges the importance of the BINM Process.

26    The process occurs as follows. Initial “putative boundary” descriptions were developed by the applicant’s advisors. That information was then considered by traditional owners as part of the fieldwork phase of the BINM Process. The assistance of expert anthropologists and legal advice was made available to members of the native title groups who participated in the BINM Process.

27    Representatives of the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups then met with their neighbours at various times in 2022, 2023, 2024 and 2025 and reached agreement as to boundaries. The fact that these processes have spanned four years illustrates the patience and determination of all participants. As a consequence, the applicant submits that the agreements between the parties about group descriptions and boundaries are directly informed by the views of the members of the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups, and their respective neighbours. The Court accepts this submission.

28    The Cioffi affidavit describes at [70]–[71] the process by which group descriptions for the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups were arrived at. These descriptions, and the apical ancestors identified, were considered by each group at various meetings during the fieldwork phase. For individuals and families, these processes are deeply personal and important. Again, time must be taken to complete them carefully and properly. Once the groups had approved the descriptions, they were then advanced by the applicant to the State in accordance with the Court’s case management timetable. Final agreement between the State and the applicant was reached on 13 April 2026 for the Western Yalanji Native Title Group and 27 April 2026 for the Eastern Kuku Yalanji Native Title Group.

THE APPLICABLE REQUIREMENTS OF SECTION 87A

29    Section 87A applies to an agreement reached “at any stage” of an existing proceeding for a proposed determination of native title in relation to an area (the determination area) that is “part of, but not all of”, the area covered by the native title determination application under s 61 of the Native Title Act.

30    Sub-section 87A(1) requires:

(a)    the existence of a proceeding in relation to an application for a determination of native title;

(b)    after the period specified in a notice given under s 66 of the Native Title Act, an agreement in writing for a proposed determination of native title in relation to part, but not all, of the application area;

(c)    all those set out in s 87A(1)(c) who are parties to the proceeding are also parties to the s 87A agreement; and

(d)    that the terms of the agreement are in writing and signed by, or on behalf of, the requisite parties to the proceeding.

31    Sub-section 87A(2) allows for the parties to file a proposed determination of native title, as they have done on this application.

32    Sub-section 87A(3) requires the Chief Executive Officer of the Federal Court to give notice to other parties to a proceeding that the proposed determination of native title has been filed with the Court. This occurred on 29 June 2026.

33    Sub-sections 87A(4) to (6) provide:

(4)    The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(a)    an order in, or consistent with, the terms of the proposed determination would be within its power; and

(b)    it would be appropriate to do so.

Note:    As the Court’s order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

(5)    Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

(a)    the order would be within its power; and

(b)    it would be appropriate to do so.

(6)    The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

Sub-section 87A(1): pre-requisites

34    As the applicant sets out at [44]–[50] of its submissions, which the State adopts, each of the pre-requisites in s 87A(1) is satisfied. Each s 87A agreement has been signed by the requisite parties to the proceeding, after appropriate notification.

Sub-section 87A(4)(a): orders within power

35    For the reasons set out at [51]–[56] of the applicant’s submissions, with which the State agrees, and for the further reason set out at [23] of the State’s submissions, I am satisfied the orders sought are within the power of the Court.

Sub-section 87A(4)(b): appropriate to make the orders sought

36    In reasons for a determination in favour of the Nanda People in Western Australia, I set out my approach to the question of “appropriateness” and the Court’s function: see Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]–[56], by reference to earlier authorities. In Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [63]–[65], I explained the particular importance of the role of the State in the consent determination process. As I did in the Kuuku Ya’u determination and the Uutaalnganu determination, and elsewhere, I adopt and apply the observations I made in Drury and Taylor here.

37    In relation to this determination, I am satisfied all parties have continued the methodical and careful approach to all relevant issues necessary to reach agreement, including in relation to other interests in the determination area. The respective group members have had carefully planned opportunities to participate in decision-making about the proposed s 87A agreement, and have been well supported to participate, if they chose to do so. Other active respondents have been consulted and given the opportunity to comment on matters affecting their interests. Again, the emphasis on traditional owner led decision making as to boundaries and group composition is a critical feature of this determination, as in all the Cape York United #1 claim determinations.

38    The Court gives considerable weight to the position taken by the State in supporting the applications for determination of native title, on behalf of all members of its community. I described the importance of the State’s role in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 10) [2022] FCA 1129 at [6], [56]. I adhere to those views.

ORDER SOUGHT UNDER S 199C(1A)

39    The s 87A agreements for both the Eastern Kuku Yalanji and the Western Yalanji Native Title Groups reflects that there are rights and interests of parties under Indigenous Land Use Agreements in relation to parts of this determination area.

40    The parties submit an order pursuant to s 199C(1A) of the Native Title Act should be made, directing the Registrar not to remove the details of these ILUAs from the Register of Indigenous Land Use Agreements. The parties contend this order should be made out of an abundance of caution, given the ongoing operational nature of the ILUAs.

41    Relevantly to the present situation, s 199C(1)(a) and (b) provide:

(1)    Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

(a)    in the case of an agreement under Subdivision B of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and the persons who, under the determination, hold native title in relation to the area are not the same as those who had previously been determined to hold it; or

(b)    in the case of an agreement under Subdivision C of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and any of the persons who, under the determination, hold native title in relation to the area is not a person who authorised the making of the agreement as mentioned in:

(i)    if the application relating to the agreement was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 203BE(5)(b); or

(ii)    if the application relating to the agreement included a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met—that paragraph; …

42    The State submits that the applicable provision is s 199C(1)(b), because the relevant ILUAs are area agreements. I accept that submission.

43    Section 199C(1A) then sets out three requirements for the making of an order which will have the effect of ensuring the Registrar does not comply with their otherwise extant obligations under, relevantly, s 199C(1)(b). For the reasons set out at [33]–[34] of the State’s submissions, I am satisfied that those requirements are met.

44    The State, however, also submits (at [35]) that “[t]here has been no authority which has considered when s 199C(1)(b) may be engaged”. For the reasons I set out at Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 25) (Kunjen Olkol determination) [2024] FCA 741 at [72], I do not consider a s 87A agreement to be an appropriate occasion to expand any further upon the construction and operation of s 199C(1)(b). For similar reasons to those I set out in Kunjen Olkol at [73], I am satisfied it is appropriate here to make an order in the form sought by the parties.

NOMINATION OF PRESCRIBED BODY CORPORATE

45    The Western Yalanji Aboriginal Corporation RNTBC (ICN 3326) has been nominated for the Western Yalanji determination. The circumstances regarding the nomination of the PBC, including its consent, are set out in the Cioffi affidavit. In the circumstances, the Court is satisfied that the nomination of the PBC is appropriate.

CONCLUSION

46    The Court’s orders and reasons, and the material filed in support of the Western Yalanji determination, tell a story of all the people who have contributed to the recognition of native title being given today. These people include experts who have worked with group members over many years, lawyers who have done the same, and third parties with interests in the area who have worked cooperatively through their lawyers to facilitate agreement. The important role performed by the State of Queensland, its officers, lawyers and departments has been critical to securing this outcome. The Court’s role and participation depends on the work of dedicated members of the Court’s native title team, led in recent years by Senior Judicial Registrar Laurelea McGregor and previously by former Judicial Registrar Simon Grant.

47    The role of the CYLC has been a complex and resource intensive one. The Court is grateful for the tremendous commitment shown by the CYLC to seeing these processes through. The other group of people who have shown patience and commitment are the members of the Cape York United #1 claim applicant, in particular the lead applicant Mr Mike Ross. He and his fellow applicant members have carried with dignity and determination the considerable burden of giving instructions, attending meetings and leading this huge proceeding over many years.

48    Recognition of the native title of the Western Yalanji People within the Cape York United #1 claim proceeding has been a long time in the making. The country over which title is being recognised is expansive, the groups of native title holders are large and there have been many complexities in reaching this point. The Court acknowledges the Western Yalanji elders who have inspired and led the long journey to recognition of native title to their country, some of whom will not have lived to see the orders made today. They will be strongly in the thoughts of all those at the determination hearing.

49    The nine tranches of determinations in the Cape York United #1 claim are an outstanding example of how much can be achieved in this jurisdiction by working together.

Associate:

Dated:    7 August 2026

SCHEDULE OF PARTIES