Full Federal Court determines native title does not exist over a large part of greater Brisbane

On 25 July 2017, the Full Court of the Federal Court (consisting of Justice Reeves, Justice Barker and Justice White) gave judgment on the case of Desmond Sandy and Ors on behalf of the Yugara People v State of Queensland & Ors [2017] FCAFC 108.

The decision determined that native title does not exist in relation to any part of the land or waters in the claim area, encompassing a large part of the greater Brisbane region, including the Brisbane CBD.

The Background of the Case

In 1998, the Turrbal People lodged a native title claim over Brisbane. The claim area stretched from approximately the North Pine River, to north of the Logan River and to Moggill in the west, including Brisbane city and its metropolis.

On 18 January 2013, the Turrbal People’s claim was combined with another native title claim lodged by the Yugara People. Over November 2013 and March – April 2014, the two claims were heard together before the primary judge.

The primary decision

The primary judge rejected the native title claims of the Yugara and Turrbal People, finding that they were unable to prove a continued and substantially uninterrupted observance of traditional law and custom necessary to establish existing native title rights and interests over the claim area.

The primary judge therefore determined that native title does not exist in relation to the claim area.

The appeal

The Full Federal Court upheld the decisions of the primary judge and dismissed all appeal points of both groups, confirming that native title does not exist over the claim area.

One of the main points of appeal was whether the Court should leave the matter of native title undetermined if it proposed not to make a positive determination of native title, The Yugara People argued that the primary judge erred in improperly exercising his discretion in making the negative determination, especially given that there was information before the Court suggesting the possibility of there being a different native title group in the claim area.

The Full Federal Court dismissed this argument, and confirmed that the Court has power to make a negative determination of native title. The Court also emphasised the need for finality in proceedings, stating that further evidence will not be admitted to a court of appeal, except in exceptional circumstances and that it is in the public interest to have every known claim over an area adjudicated in the one proceeding.

Moreover, the Yugara People could not show that the primary judge erred in exercising his discretion – by acting on a wrong principle, taking into account irrelevant matters, not taking into account a material consideration, or made a mistake of fact – nor could they establish that the decision was plainly unjust.

Ultimately, the Court upheld all of the primary judge’s findings and held that the primary judge had not erred in exercising his discretion to make a determination that native title did not exist in the claim area.

Key Takeaways

This decision means that native title is unlikely to be considered as an issue requiring resolution in the context of development throughout the greater Brisbane area. In other words, it is unlikely that development in the claim area will give rise to any ‘future acts’ that will need to be addressed under the Native Title Act 1993 future act provisions.

The Turrbal People held the status of being the last registered native title claimants for their claim area. Subject to a successful appeal, there would appear to be little or no prospect of any future claim becoming registered over the same area. This provides some certainty to development proponents as approvals, permits and tenure arrangements ought not be subject to native title issues whereas previously they would, on the assumption that native title may continue to exist.

It remains to be seen, however, whether State agencies responsible for issuing tenure or approvals over areas where native title may have once existed will remain cautious in their approach to possible native title issues, or whether they will accept this decision as conclusive.

This decision does not change Aboriginal cultural heritage requirements, and land users must still carefully consider their compliance obligations under the Aboriginal Cultural Heritage Act 2003 (Qld).