Skip to content

  • Home
  • COVID-19 Guide
  • COVID-19 AV library
  • Client results
  • Expertise
  • News & Insights
  • People
  • Our DNA
  • Inclusion and Diversity
  • Join us
  • Contact Us
Home / NEWS & INSIGHTS / Insight / Full Court rules no native title in Brisbane and surrounding areas
Insight 27 July 2017

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.

About the authors

  • Dominic McGann

    Partner
  • Peter Stokes

    Partner
  • Liam Davis

    Partner

In other news

FIRB Reforms Article Series – Part 2: Family Arrangements

30 July 2020Insight

Are loan books next on the block for Australia?

29 July 2020Insight

Unlicensed parties beware – Head contractor exemption to be removed from QBCC Act

28 July 2020Insight

FIRB Reforms Article Series – Part 1: National Security Businesses

23 July 2020Insight

VIEW ALL NEWS & INSIGHTS

BRISBANE

Level 11, 66 Eagle Street
Brisbane QLD 4000
GPO Box 1855
Brisbane QLD 4001
Tel +61 7 3233 8888
Fax +61 7 3229 9949

 

GET IN TOUCH

    Contact form

    We handle your personal information in accordance with our privacy policy.

    sydney

    Level 32, MLC Centre
    19 Martin Place
    Sydney NSW 2000
    GPO Box 462
    Sydney NSW 2001

    Tel +61 2 8241 5600
    Fax +61 2 8241 5699

     

    GET IN TOUCH

      Contact form


      We handle your personal information in accordance with our privacy policy.

      melbourne

      Level 27, 101 Collins Street
      Melbourne VIC 3000
      GPO Box 2924
      Melbourne VIC 3001

      Tel +61 3 9067 3100
      Fax +61 3 9067 3199

       

      GET IN TOUCH

        Contact form

        We handle your personal information in accordance with our privacy policy.

        follow us

        CLIENT LOGIN

        newcastle

        Level 2, 16 Telford Street
        Newcastle NSW 2300
        PO Box 394
        Newcastle NSW 2300

        Tel +61 2 4914 6900
        Fax +61 2 4914 6999

         

        GET IN TOUCH

          Contact form


          We handle your personal information in accordance with our privacy policy.

          canberra

          Level 9, 2 Phillip Law Street
          Canberra ACT 2601

          Tel +61 2 6243 3699
          Fax +61 2 8241 5699

           

          GET IN TOUCH

            Contact form


            We handle your personal information in accordance with our privacy policy.

            © 2017 McCullough Robertson. Site map Disclaimer Privacy Policy Credit Reporting Policy

            X