This article was written by Scott Singleton and Nick Testro.
The decision of the Full Federal Court in Sandy on behalf of the Yugara People v State of Queensland  FCAFC 108 confirms that native title does not exist over large parts of the greater Brisbane area. This means that:
- Subject to any further appeal being successful, project proponents in the relevant areas in and around Brisbane have certainty that grants of tenure and other permits or approvals will not be subject to any native title requirements.
- On the interpretation of the law currently favoured by the Queensland Government, there will be no change to the current status of the Aboriginal Party for the purposes of negotiating agreements and developing management plans under the State’s cultural heritage regime.
- Native title parties in areas where overlapping interests are claimed may need to seek ways to actively and appropriately respond to a competing claim, to seek its dismissal at an early stage and to minimise the risk of a finding that native title does not exist.
On 25 July 2017, the Full Federal Court handed down its decision on the appeals of the Turrbal People and the Yugara People of determinations by the Federal Court that native title does not exist in the greater Brisbane area (see map below).
The Yugara People had appealed the Federal Court decisions on the basis of the Court’s finding that none of the Yugara People’s ancestors were demonstrated to have been present in the claim area at material times at sovereignty, and that they had not demonstrated the existence of a continuing society that maintained a normative system of laws and customs in each generation from sovereignty to the present. The Turrbal People appealed the findings on the same grounds held against them, as well as the additional ground that they had not proven that they were in fact descended from the ancestor who they relied on as part of their case to satisfy the requirements of the Native Title Act 1993 (Cth) (NTA).
The Full Federal Court dismissed the appeals of both groups, confirming native title did not exist over the determination area.
Power to make a negative determination
In the trial, the Yugara applicants submitted that, if the Court proposed not to make a positive determination of native title, the Court should provide no immediate answer at all and leave the matter of native title undetermined until such time as the Yugara and Turrbal had had an opportunity to undertake “a thorough, professional, assessment of their connection, and the connection of their ancestors, to the land and waters of the claim area.”
This argument was disposed of summarily by the primary judge. However, it was a key appeal point of the Yugara People, as the Court had on previous occasions dismissed various claims without making a finding that native title had been extinguished. The Yugara in the appeal alleged that the primary judge had erred in law in improperly exercising his discretion as to whether a negative determination of native title should be made. Particularly, the Yugara alleged that there was information before the Court to support the possibility of there being a differently constituted group of native title holders in the claim area that included some or all of the Yugara claim group.
The Full Federal Court ultimately upheld the decisions of the primary judge, dismissing all of the appeal points of the Yugara People and Turrbal People. In addition to dismissing an application of the Yugara to admit further evidence to the Court of appeal (which will only be permitted in exceptional circumstances), the Court found that the decision of the primary judge to make a negative determination was within a well-established power that had previously been exercised by the Court on a number of occasions. In dismissing the appeals, the Full Federal Court discussed the importance of finality in proceedings and the public interest in having every known claim over an area adjudicated in the one proceeding.
The Court also noted that the Yugara accepted that, as the power to make a negative determination or dismiss a claim was discretionary, the onus was on the Yugara to show that the primary judge acted on a wrong principle, allowed irrelevant matters to guide him, did not take account of a material consideration or made a mistake of fact, or the decision was plainly unjust. The Full Federal Court ultimately held that the primary judge had not erred in exercising his discretion to make a determination that native title did not exist in the area of the two claims.
Aboriginal cultural heritage implications
The regime for determining the Aboriginal party under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) is largely tied to the NTA, and so the Full Federal Court’s decision has implications outside of the NTA. Based on the interpretation of the ACHA preferred by the Department of Aboriginal & Torres Strait Islander Partnerships for areas where a negative determination has been made, the most recent registered native title claimant for an area will be the Aboriginal party.
The Turrbal People (QC98/26) held Aboriginal party status as last registered native title claimants for their claim area. Subject to any successful appeal of the Full Federal Court’s decision, there is no prospect of any future claim becoming registered over the determination area (as native title has been found not to exist). The Turrbal People will therefore retain their Aboriginal party status under the current terms and application of the ACHA. Based on the history of native title claims over the greater Brisbane area, the Turrbal People share their Aboriginal party status with the Jagera People #2 People (QC03/15) in some areas (see map below).
Proponents in the relevant area will therefore be required to continue to negotiate cultural heritage agreements, and develop cultural heritage management plans, with either or both of the Turrbal People and the Jagera People #2.
From Yugara People v Queensland  FCA 210
(Map supplied by the Department of Aboriginal and Torres Strait Islander Partnerships)
Connie Isaacs on behalf of the Turrbal People v Queensland (QUD 6196/1998; QC98/26).
Desmond Sandy, Ruth James and Pearl Sandy on behalf of the Yugara (or Yugarapul) People v Queensland (QUD 586/2011; QC03/15).
Sandy on behalf of the Yugara/Yugarapul People v State of Queensland (No.2)  FCA 15; Sandy on behalf of the Yugara People v State of Queensland (No 3)  FCA 210.
This is the principle established in House v The King  HCA 40.