Australia: No native title for Brisbane: Certainty for infrastructure proponents and other developers?

Last Updated: 7 August 2017
Article by Tosin Aro and Mark Geritz

The Full Federal Court has confirmed that native title no longer exists anywhere in Brisbane.

While the recent clarification from the Full Federal Court that native title no longer exists over Brisbane will be welcomed in some quarters, it may prove to be the cause of uncertainty in other areas - particularly in relation to Aboriginal cultural heritage.

What has just happened?

In early 2015, Justice Jessup determined that native title does not exist in relation to any part of the area subject to native title claims brought on behalf of the Turrbal People and Yugara People (see Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 and Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210). The combined claim area covered the bulk of the Brisbane metropolitan area.

Separate appeals brought by the native title parties were heard together by the Full Court of the Federal Court in November 2016. The Full Court handed down its judgment, dismissing both appeals, on 25 July 2017 (Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108).

Reasons - connection and finality

The Full Court agreed with the primary judge that neither of the appellants could demonstrate that they were:

- the biological descendants of apical ancestors who were present in the claim area at sovereignty; or

- members of a continuing society who, through successive generations since sovereignty, had continued to acknowledge and observe the traditional laws and customs by which they were connected to their claim area, and under which their native title rights and interests were said to be possessed.

While the Full Court acknowledged that the actions of settlers may have contributed to this interruption of connection, the Court adverted to longstanding authority (eg. Bodney v Bennell [2008] FCAFC 636) in finding that the "explanation of forced removal ... is not directly relevant to the continuity finding".

For these reasons, neither of the appellants could obtain a determination that they hold native title in the claim area. The question, then, was whether the primary judge was right to further determine that native title did not exist at all over Brisbane.

The Full Court held that CG v Western Australia [2016] FCAFC 67 "authoritatively affirmed" that the Federal Court has the discretionary power to make a negative determination of native title.

In light of the long history of (unsuccessful) overlapping claims to the Brisbane metropolitan area, and the available anthropological research into the continuity of (any) traditional society in Brisbane, the Full Court agreed with the primary judge that there was no real prospect of other groups having potentially viable claims over the area.

The determination that native title does not exist over Brisbane therefore advanced the strong public interest in the finality of litigation.

What the negative determination over Brisbane means for proponents

For over two years, developers of projects in the Brisbane area have had to allow for the possibility of the negative determination being reversed on appeal. The Full Court's decision brings welcome certainty for such proponents (subject to any application for special leave to appeal to the High Court).

Ordinarily, a project proponent would need to consider whether statutory approvals or grants of tenure over land and waters (including the Brisbane River) would "affect native title". Any such approval or tenure would only be valid, to the extent it does affects native title, if it was covered by an applicable procedure in the Native Title Act 1993 (Cth). The negative determination over Brisbane means there is no longer a need to comply with any such procedures, resulting in both financial and time savings for proponents.

The negative determination does not, however, mean that proponents no longer need to comply with their obligations to avoid harm to Aboriginal cultural heritage.

Future consultation with Aboriginal parties

All land users have a duty of care to take reasonable and practicable measures to avoid harm to Aboriginal cultural heritage. This obligation applies everywhere, not only in relation to areas where native title may exist. The obligation therefore continues to apply in Brisbane.

Compliance with the "cultural heritage duty of care" typically requires consultation (and often also agreement) with the applicable "Aboriginal party". Where there are no current registered native title holders or claimants for an area, the Aboriginal party will be the claimant for the last of the registered claims over the area to have failed. There are two Aboriginal parties for most of Brisbane, being the former registered claimants for the Turrbal People and Jagera People #2 claims.

Ordinarily, an Aboriginal party who is a former registered claimant will be replaced as Aboriginal party by a new registered claimant over the same area. The consequence of the negative determination over Brisbane, however, is that there can be no new native title claims over Brisbane. There is therefore no prospect of the current Aboriginal parties being replaced.

While this is of no immediate consequence, issues will be raised over the medium term as the members of these Aboriginal parties inevitably advance in years and pass on. The Aboriginal Cultural Heritage Act 2003 provides for Aboriginal parties in these circumstances to be succeeded by the members of their old native title claim groups. How this succession will work in practice (including with regard to issues such as who will need to execute cultural heritage management plans or other agreements in these circumstances) - particularly if the old native title claim group has become dysfunctional - is an emerging issue, and legislative, judicial or policy guidance will be required.

So, in summary, while the recent decision brings certainty today, uncertainty is likely to again confront project proponents in the foreseeable future.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions