Full Court rules no native title in Brisbane and surrounding areas

WHO SHOULD READ THIS

• Property developers, State and Local Government departments, and anyone developing a project across greater Brisbane.

THINGS YOU NEED TO KNOW

• The Full Court of the Federal Court of Australia has dismissed an appeal of the primary judge’s decision and has confirmed that native title does not exist in Brisbane and the surrounding areas.

WHAT YOU NEED TO DO

• Native title does not need to be considered in relation to dealings with the land and waters in the Brisbane and surrounding areas. However, obligations under the Aboriginal cultural heritage legislation in Queensland still apply. Importantly, for a large portion of Brisbane and its surrounding areas, there remain two Aboriginal Parties – the Turrbal People and the Jagera People #2.

Earlier this week, the Full Court of the Federal Court has upheld the primary judge’s decision that native title does not exist in Brisbane and its surrounding areas: see Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108.

As a result of this decision, native title does not need to be considered in relation to dealings with the land and waters within the area identified below. However, obligations under the Aboriginal cultural heritage legislation in Queensland still apply. Importantly, for a large portion of Brisbane and its surrounding areas, there remain two Aboriginal Parties – the Turrbal People and the Jagera People #2.

Background to the primary decision

On 13 May 1998, the Turrbal People lodged a native title claim over Brisbane, and surrounding areas that extend to the North Pine River in the north, the Logan River in the south, to Tingalpa Creek in the south-east, and to Brookfield in the west. On 18 January 2013, the claim lodged by the Turrbal People was consolidated with the native title claim lodged by the Yugara People, each claim group seeking a determination of native title.

As a result, the two claims were heard together before the primary judge in November 2013 and March to April 2014. The primary judge was tasked with determining whether, under section 223 of the Native Title Act 1993 (Cth), the Turrbal People and Yugara People, by traditional laws and customs, had maintained a connection to their traditional country in a substantially uninterrupted way.

The primary judge found that neither the Turrbal People nor the Yugara People held native title rights and interests in relation to any land or water in the claim area. It followed that the members of the claim groups had failed to prove continuity of connection to the claim area since sovereignty.

In addition, the primary judge exercised his discretion to make a separate determination over the area that native title does not exist in relation to the claim area.

Appeal

The Full Court of the Federal Court considered, among other things, whether the primary judge erred in his findings that the Turrbal People and Yugara People failed to prove continuity of connection to the claim area, and that native title is determined not to exist in the area.

The Full Court dismissed the appeals and upheld the primary judge’s findings.

Implications

Industry, and in particular property developers and government, should be aware that as a result of this decision, native title will not need to be addressed as an element of project development throughout Brisbane and the surrounding areas.

That said, regardless of the Full Court’s decision, land users are still required to consider their obligations to manage Aboriginal cultural heritage.

As it stands under the Aboriginal Cultural Heritage Act 2003 (Qld), for a large portion of the area the subject of the determination, there remain two ‘Aboriginal Parties’ – the Turrbal People and the Jagera People #2.

Land users should carefully consider their Aboriginal cultural heritage compliance strategies.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.