Negative determination of native title over Brisbane upheld

The Full Federal Court’s decision in Sandy on behalf the Yugara People v State of Queensland (No 3) [2015] FCA 210 was handed down on 25 July 2017.

The appeals were brought by representatives of the Yugara People (Yugara Appellant) and representatives of the Turrbal People (Turrbal Appellant) challenging the decision of Jessup J at a consolidated hearing in the Federal Court (original decision) to dismiss their respective native title determination applications. Both groups had filed overlapping native title determination applications over an area that included the city of Brisbane. In the original decision, the Court found that both applicants had failed to establish that they had a continuous connection to the claim area. Jessup J, in a separate judgement, made a negative determination, that is, a determination that native title does not exist in relation to any part of the land or waters in the claim area (negative determination).

Both the Yugara Appellant and the Turrbal Appellant appealed the original decision. The Yugara Appellant also appealed the negative determination.

Appeals against the original decision

In support of their appeal, the Turrbal Appellant submitted that Jessup J should have used the broader notion of ‘predecessor’ rather than that of ‘ancestor’ as the basis for his analysis of Turrbal succession and continuity. They also argued that the original decision failed to give due weight and regard to the State policy of compulsory removal. The Full Court dismissed the appeal, finding that there were no errors in the original decision in relation to either the ancestry case or the continuity findings. The ‘predecessor’ argument was a shift from the arguments put by the Turrbal Appellant at the trial, however, the Full Court found that there is nothing in the original decision to suggest an error in relation to that issue.

The Yugara Appellant sought leave to adduce further evidence in the appeal, which was refused. They challenged the original decision on procedural fairness grounds as well as arguing that there were errors in the finding that there was no continuity of connection to the claim area. In respect of the procedural fairness grounds, following a thorough consideration by the Full Court of the way in which the original hearing was conducted, the Full Court ultimately concluded that there was no denial of procedural fairness on any of the issues raised by the Yugara Appellant. The Full Court also concluded that the findings in the original decision in relation to the continuity of connection issue were reasonable and available on the evidence.

Appeal against the negative determination

Finally, the Full Court considered the Yugara Appellant’s challenge to the exercise by Jessup J of his discretion to make a negative determination. The Full Court disagreed with the Yugara Appellant that there was any unreasonableness in the exercise of discretion, finding that the negative determination was based on a lengthy and detailed explanation of the conclusions. Jessup J made it clear in his findings that while at sovereignty there had been an acknowledgment of traditional laws and customs of the society that existed in the claim area, this had not continued substantially uninterrupted since that time.

No party applied for special leave to appeal the decision to the High Court.

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: 18 September 2017

Author: Principal Lawyer, Amy Carseldine