Paterson on behalf of the Yandruwandha Yawarrawarrka People v State of Queensland

INTRODUCTION 1 In this application the applicant, Aaron Charles Patterson and Robert Singleton on behalf of the Yandruwandha Yawarrawarrka People, seeks a consent determination under s 87A of the Native Title Act 1993 (Cth) (NTA) to recognise the native title rights and interests of the Yandruwandha Yawarrawarrka People in part of the claim area in proceeding QUD 133 of 2021 (the YY Application). The proposed determination covers approximately 6,367 square km in south-west Queensland lying along the border with South Australia. 2 The parties have filed an agreement under s 87A of the NTA signed by all necessary parties (s 87A Agreement) to which is annexed a draft consent determination. The proposed determination area covers the lands and waters within the State of Queensland (State) that are described in Schedule 4 of the draft consent determination and depicted in the map attached at Schedule 6 (to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5) which is described in these reasons as the Queensland Part B Area (Queensland Part B Area). The key map attached to Schedule 6 of the draft determination for the Queensland Part B Area is reproduced as Annexure 1 to these reasons. 3 It is necessary to understand that the proposed determination is a single determination, but one which recognises the separate and distinct native title rights of both the Wongkumara People and Yandruwandha Yawarrawarrka People in the Queensland Part B Area. The claim area in the YY Application wholly geographically overlaps part of the claim area in the native title determination application by the Wongkumara People in proceeding QUD 851 of 2018 (Wongkumara Application). The Queensland Part B Area comprises only a small part of the Wongkumara claim area which covers almost 48,000 square km. 4 In these reasons I will not say much about the proposed determination that the Wongkumara People hold native title rights and interests in relation to the Queensland Part B Area. These reasons focus on the proposed determination of native title for the Yandruwandha Yawarrawarrka People and I will hand down separate reasons in relation to the Wongkumara Application. 5 This proposed determination of native title for the Yandruwandha Yawarrawarrka People is plainly important to them, and they fought hard to achieve recognition of their rights and interest in this area. Before the parties agreed on a consent determination the YY Application and the Wongkumara Application were the subject of a hearing of separate questions ordered by the Court in which lay evidence was heard on country from 9 to 27 May 2022 and expert evidence heard on 6 and 7 March 2023 (Separate Questions hearing). The proposed determination area comprises approximately 6,367 square km. That is a large area, but it is dwarfed by existing Yandruwandha Yawarrawarrka native title holdings. In 2015 the Court recognised the native title of the Yandruwandha Yawarrawarrka People over a vast area in the far north-east corner of South Australia covering approximately 40,240 square kms: see Nicholls v State of South Australia [2015] FCA 1407. 6 The evidence in this case, and the decision in Nicholls, indicate that the Yandruwandha and Yawarrawarrka peoples have had an enduring connection to the country in this region for tens of thousands of years. The evidence suggests that following European settlement there was widespread displacement of the Yandruwandha and Yawarrawarrka peoples resulting in a significant population decline, and residential movement away from traditional estates to the township of Innamincka and to pastoral stations. It indicates that the shift in the traditional land tenure system to accommodate cognatic descent is an adaptation that has its basis in traditional law and custom brought about in response to the impacts of European settlement. 7 By this determination the Court recognises that despite dispossession from their country by pastoralists, and more latterly by mining interests, the Yandruwandha Yawarrawarrka People have managed to maintain their culture and a deep connection to their country. That is a testament to their strength, their commitment and their love of country. It is important to understand that by this determination the Court does not grant native title to the Yandruwandha Yawarrawarrka People; instead, it is a recognition that the Yandruwandha Yawarrawarrka People have always had traditional rights and interests in this country. 8 For the reasons I now turn to explain, I am satisfied that it is within the power of the Court to make the orders sought in relation to the determination area, and that it is appropriate to do so. 9 The named applicants in the YY Application deserve the respect of their community and our congratulations. This has been a hard fought proceeding, and they worked hard to get a result. The orders reflect the hard and effective work of all parties, particularly the Yandruwandha Yawarrawarrka applicant, the Wongkumara applicant and the State of Queensland, and their willingness to compromise. They also reflect the hard work of Judicial Registrar Simon Grant in case-managing the proceedings and assisting in reaching a mediated outcome. They too deserve our thanks and congratulations.