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Editors --- "Rodney Riley on Behalf of the Western Yalanji People v State of Queensland [2006] FCA 72 - Case Summary" [2006] AUIndigLawRpr 6; (2006) 10(1) Australian Indigenous Law Reporter 37

RODNEY RILEY ON BEHALF OF THE WESTERN YALANJI PEOPLE V STATE OF QUEENSLAND

Federal Court of Australia (Allsop J)

17 February 2006

[2006] FCA 72

Native Title — consent determination — agreement reached between the parties — native title exists over determination area.

Facts:

This case concerned an application made by Rodney Riley on behalf of the Western Yalanji people for determination of native title over an area on Cape York Peninsula comprising land and inland waters. This application followed a successful application brought by the Western Yalanji People in 1998 in relation to an area of land adjacent to that under consideration in this case.

The application was filed in September 1998 and amended in 2000 to provide further particularisation of the native title claim group as the persons claiming to hold native title. The Mitchell River was removed from the claimed area by further amendment carried out in 2002.

The matter was resolved in mediation between all of the parties. The draft agreement reached by the parties confers non-exclusive rights on the Western Yalanji People to use and enjoy the land and waters in the area. Section 13 of the Native Title Act 1993 (Cth) provides that the Court is entitled to make orders consistent with the terms of the parties’ written agreement without holding a full hearing if it is satisfied that such an order is within its power.

Held, granting application:

1. That native title exists in relation to the lands and waters identified in the draft determination agreement: [26]

2. The Western Yalanji People have a long standing connection to the determination are a under traditional laws acknowledged and observed by them: [26]

Case Extract:

…

Orders and Determination

27. It is appropriate to return to s 225 of the Act. Section 94A requires that the matters mentioned in s 225 be set out in the orders. The orders proposed by the consent of the parties must therefore deal with those matters.

28. Paragraph 225(a) deals with identification of the persons holding the common or group rights comprising the native title. This is set out in Schedule 2 to the orders.

29. I should add at this point that the State of Queensland is satisfied and has the view that the identity of the native title claim group is established by the connection material to which I have earlier referred.

30. Paragraph 225(b) deals with the nature and extent of the native title rights and interests in relation to the determination area. These are set out in orders 3 and 4.

31. I should add at this point that the State of Queensland is satisfied and has the view that the native title rights and interests set out in paragraphs 3 and 4 of the draft determination (being orders 3 and 4) are substantiated by the traditional laws and customs as described in the connection material provided on behalf of the Western Yalanji People.

32. Paragraph 225(c) deals with he nature and extent of any other interests in relation to the determination area. This is set out and dealt with by order 8. The precision and accuracy of the matter dealt with there has been the product of the careful work of the parties, in particular the State of Queensland.

33. Paragraph 225(d) deals with the relationship between the rights and interests in s 225(b) and (c) taking into account the effect of the Act. This is dealt with in order 9.

34. Paragraph 225(e) deals with the question of exclusion of others. Order 10 deals with this. The native title rights and interests the subject of the orders do not confer possession, occupation, use and enjoyment of the determination area on the native title holders to the exclusion of all others.

35. The orders, which are consistent with the terms agreed by the parties, recognise that the Western Yalanji People, as the common law holders of the native title in the determination area, are entitled to the non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. The orders further recognise other interests in the determination area and the relationship of those interests with the native title interests. The orders contain other provisions, required by the Act which are self explanatory.

36. I am satisfied that it is within the power of the Court to make the orders sought and that these orders can appropriately be made to give effect to the parties’ agreement without a full hearing of the applicant’s claim. For the above reasons, I have concluded that it is appropriate to make the orders sought by the parties to give effect to their agreement and I will, in a moment, make those orders.

37. This is a very significant day for the parties, in particular the applicant and the claim group. The recognition of native title takes place under the Act. It is the recognition by Australia and its laws (through orders made by the judicial arm of the Commonwealth) of the reality of the historical occupation of country by the Western Yalanji People and of the existence of their traditional laws and customs in relation to country long before European settlement. This recognition is not only an event of enduring importance for the Western Yalanji People, the applicant and the claim group, but it is also an event of enduring importance for all Australians. That is so because, one hopes, it is one part of the creation of a new national legacy within the framework of legislation of the Commonwealth of Australia.