No native title over Brisbane CBD
and surrounding areas
On 16 March 2015, the Federal Court determined in rem that native title does not exist over the land and waters of Brisbane and its surrounding areas.
The area covered by the determination extended from the D’Aguilar National Park in the north, east to the coast line at Brighton, down to Manly, directly south towards Mt Cotton, extending to Moggill and then following a line east of the Great Dividing Range back to the D’Aguilar National Park: see Desmond Sandy on behalf of the Yugara People v State of Queensland (No 3)  FCA 210.
A native title determination application was initially lodged over the wider Brisbane area by Connie Isaac on behalf of the Turrbal Peopleon 13 May 1998 (‘Turrbal People’s claim’). The Turrbal claim group claimed biological descent from a Turrbal man known as ‘the Duke of York’. The Turrbal People’s claim was ultimately programmed for trial to commence in late November 2011.
The trial was adjourned pending negotiations between the Turrbal People and the State. At a directions hearing on 7 December 2011, the State and the Turrbal People informed the Court that terms of settlement had been agreed. However, on the same day, an application that entirely overlapped the Turrbal People’s claim was filed by Desmond Sandy (‘Yugara/Yugarapul People’s claim) which effectively halted the settlement outcome.
The Turrbal People claimed native title over identified areas with an external boundary, whereas the Yugara/Yugarapul People claimed native title over all of the area within that external boundary.
The Native Title Act 1993 (Cth)requires that the court make appropriate orders to ensure that applications covering the same area are dealt with in the same proceeding and so in January 2013, the Turrbal People’s claim and the Yugara/Yugarapul People’s claim were consolidated into one proceeding and programmed for trial. The consolidated proceeding hearing took just over three weeks, over the course of November 2013 and March to April 2014.
The inquiry and findings
On 27 January 2015, the Federal Court delivered judgment in Sandy on behalf of the Yugara People v State of Queensland (No 2)  FCA 15 (‘Sandy (No 2)’), the consolidated proceeding. The court held that, even disregarding any question of extinguishment of native title, native title does not exist in relation to any land and waters in the claim area.
Following submissions by the parties on the appropriate form of final orders by the State, the court made final orders (in Sandy (No. 3)) in the form of a determination under s. 225 of the Native Title Act that native title does not exist. This outcome was significantly aligned with the outcome sought by the State. The other parties that made submissions asked that the court dismiss the two applications. If the two applications had been dismissed and no determination made, then it would have been possible for future native title applications to be made over the same area.
The court’s reasoningIn his judgment as to whether native rights and interests continue to exist as required by s. 223 of the Native Title Act, Jessup J relied heavily on the High Court decision of Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (‘Yorta Yorta‘).
For native title to be recognised, connection to the land and waters claimed must be held under a system of traditional laws acknowledged and customs observed by the native title claim group ever since sovereignty and without substantial interruption.
On the basis of the evidence relied on by the applicants, His Honour found on the balance of probabilities that, pre-sovereignty:
- there was a single language spoken in the claim area, albeit with different dialects
- there were five clans in the claim area under the leadership of a headman in relation to discrete geographic areas
- native title rights and interests would have been held by members of each clan with respect to their particular land and waters, e.g. the rights and interests in lands and waters to the north of the lower Brisbane River were possessed by members of ‘the Duke of York’ clan and rights and interests in land to the south of the Brisbane River were possessed by members of the Coorparoo clan
- it was “uncontroversial” that the clans across the region would have shared the same laws and customs.
His Honour found that it was most unlikely that the critical Turrbal antecedent, Billy Isaacs (father of applicant Connie Isaacs) was a descendant of ‘the Duke of York’. After reviewing all the relevant evidence, His Honour found that the ancestors of the Yugara/Yugarapul claimants did not hold any native title rights or interests in the land or waters in the claim area. He noted that the Yugara People’s antecedent appeared to have relevant interests to the south and west of the claim area.
Continuity of connection
His Honour accepted that the Aboriginal tribes that occupied the claim area at the time of first white settlement had been displaced either by settlers or by other Aborigines.4 He accepted that Aboriginal people were present in the Brisbane area from sovereignty to the present time, but that is not the same as saying that those particular people held rights and interests in the claim area under traditional laws and customs for the area that continue to be observed and acknowledged.
His Honour found that the evidence at trial was not sufficient to establish the continuity required under s 223 of the Native Title Act by either the Yugara/Yugarapul People or the Turrbal People.
The Sandy (No. 2) and Sandy (No. 3) decisions are subject of an appeal by the Yugara/Yugarapul People. The Sandy (No. 3) decision is also subject of appeal by Queensland Native Title Services, the native title representative body for the region including the determination area.
Section 24FA of the Native Title Act may provide protection for future acts undertaken during this period for government applications (s 24FB), non-government applications (s 24FC) or entry on the National Native Title Register (s 24FD).
It is recommended that although native title may not need to be addressed in relation to dealings with land and waters from 16 March 2015 in the determined area, appropriate legal advice should still be sought on the implications of this decision for cultural heritage compliance and that the status of the appeal process should also be monitored.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 21 August 2015
Author: Katie Stride and Leilehua Helu