Full Court confirms native title no longer exists over Brisbane

• The Full Federal Court has dismissed the appeals from the Federal Court's 2015 decision that native title does not exist in relation to a large part of the greater Brisbane area, including the Brisbane CBD (Sandy on behalf of the Yugara People v State of Queensland [2017] FCFCA 108).
• Put simply, both the Turrbal and the Yugara applicants had lost their continuing connection to the land. 
• The Full Court also confirmed the trial judge's exercise of discretion to make a "negative" determination that native title does not exist in these circumstances.

What you need to do

• Note that future grants and other activities within the determination area need not comply with Native Title Act 1993 (Cth) processes.
• Be aware that no native title compensation is payable for dealings in areas where native title does not exist due to loss of connection.
• Continue to meet your obligations under Queensland cultural heritage legislation which are not affected by the Full Court's decision.  

 The trial judge's decision – native title does not exist 

The proceedings involved competing native title claims made by the Turrbal People and Yugara People over a large part of the greater Brisbane area, including the Brisbane CBD.  The proceedings had a long history, with the Turrbal claim first lodged in 1998.  

In January 2015, Justice Jessup of the Federal Court rejected both claims on the basis that the claim groups were unable to prove a continued and substantially uninterrupted system under which traditional laws and customs were acknowledged and observed (Sandy on behalf of the Yugara People v State of Queensland (No.2) [2015] FCA 15).  His Honour held that neither claim group possessed the necessary communal, group or individual rights and interests required to prove native title in the claim area.  See our January 2015 Native Title Alert: Federal Court Rejects Brisbane Native Title Claims for more details about the trial judge's decision.

In March 2015 the Federal Court made a determination that native title does not exist in relation the claim areas (Sandy on behalf of the Yugara People v State of Queensland (No.3) [2015] FCA 210).  

Both groups appealed to the Full Court and the appeals were heard together in November 2016.

Appeal dismissed - Full Court agrees that native title does exist

On 25 July 2017, the Full Federal Court dismissed the appeals from the Federal Court's decision and confirmed that native title does not exist (Sandy on behalf of the Yugara People v State of Queensland [2017] FCFCA 108).

Loss of continuing connection 

The Full Court agreed with the trial judge that neither the Turrbal or Yugara applicants were able to establish a continuity of laws and customs.  

Put simply, the Turrbal or Yugara applicants had lost their traditional connection to the land.

The Full Court followed their earlier decision in Bodney v Bennell (2008) 167 FCR 84 (in relation to the Perth CBD native title claim) and noted at [221] that: 

"a substantial interruption of the connection of a people to a claim area by the traditional laws and customs is not to be mitigated by reference to white settlement. The continuity inquiry does not involve consideration of why acknowledgment and observance ceased."

The Full Court said the case of the Turrbal applicants was not relevantly different from that of the claimants in Risk (on behalf of the Larrakia People) v Northern Territory (2007) 240 ALR 75 (in relation to the Darwin CBD native title claim) in which the Full Court concluded that, by reason of dispossession of much of their traditional lands, they were precluded from exercising many of their traditional rights. 

Discretion to make a "negative" determination of native title

The Yugara applicants also appealed the trial judge's separate determination that native title did not exist.  

The Full Court confirmed that the trial judge had the discretionary power to make a negative determination of native title (see CG v Western Australia (2016) 240 FCR 466).  It dismissed the appeal and found that the discretion was properly exercised, taking into account the long history of the competing claims and the need for finality in the proceedings. 

Insights on proving connection

This is the third urban native title claim to fail.  In May 2006, the Larrakia People could not prove connection over Darwin.  The Noongar community failed on appeal in their claim over Perth, following success at trial (Bennell v State of Western Australia [2006] FCA 1243).  The Yugara appeal decision demonstrates the difficulties faced by native title claim groups in proving native title in urban areas.  The Kaurna People will face this same challenge when their claim over Adelaide is heard in April 2018.

Implications of the appeal decision

Native Title Act procedures do not apply in Determination Area

From March 2015, when the Federal Court formally determined that native title did not exist (Sandy on behalf of the Yugara People v State of Queensland (No.3) [2015] FCA 210), it was not necessary for grants and other activities in the determination area to comply with Native Title Act processes.  The appeal decision confirms this.

The Full Court's dismissal of the appeals also confirms that there can be no further native title claims made over the determination area by the Turrbal people, Yugara people or any other group. 

More details about the boundaries of the determination area are contained in the National Native Title Register.  

No native title compensation payable

It follows, that no native title compensation is payable for acts in areas where native title does not exist due to loss of connection.

Cultural heritage protection continue

The fact that native title does not exist does not mean that proponents no longer have to comply with Queensland's cultural heritage legislation.  Cultural heritage objects and places continue to be protected under the Aboriginal Cultural Heritage Act 2003 (Qld).  See our 26 April 2017 Native Title Alert: Department releases Issues Paper in Cultural Heritage Duty of Care Guidelines Review for an outline of the Government's proposed changes to the cultural heritage duty of care guidelines.