Reeves, Barker and White JJ
In this matter Reeves, Barker and White JJ dismissed separate appeals brought by the Yugara People and the Turrbal People against the determination of Jessup J that native title does not exist in relation to any part of the claim area encompassing modern day Brisbane (Sandy on behalf of the Yugara People v Queensland (No 2) [2015] FCA 15 (Sandy No 2) and Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210 (Sandy No 3).
Background
At trial, the Turrbal people claimed that they were direct descendants of an Indigenous man known as the ‘Duke of York’ in the early days of the colonial Morton Bay settlement (as Brisbane was then known), and held native title in the claim area. The Yugara People disputed the claim that only the Turrbal People held native title over the claim area at sovereignty, and the Turrbal People were but a subgroup of the Yugara who held all native title rights and interests in the claim area at sovereignty, and today.
The Yugara People's claim had failed because the primary judge considered that none of their apical ancestors was demonstrated to have been present in the claim area at material times at sovereignty as alleged and they failed to demonstrate a continuing “society” of Yugara who maintained a normative system of laws and customs in each generation from sovereignty to the present under which their rights and interests were possessed.
The Turrbal People's claim failed for the same continuity reasons and because they could not prove that they were in fact descended from the Duke of York – the particular ancestral case they had put at trial.
The Yugara appellants appealed from both the negative answer and the negative determination in their proceeding. The Turrbal appellants appealed from the negative answer in their proceeding, but not directly from the negative determination.
Appeal Questions
Five issues were considered by the Full Court
1. Whether the Yugara appellants should be given leave in their appeal to rely on further evidence?
Counsel for the Yugara appellants made an oral application for the Full Court to receive further affidavit evidence from an anthropologist. The Court considered that the further evidence was substantial and there was no explanation as to why the evidence had not been presented at the initial hearing. This was an important consideration as the proper evaluation of the evidence would require considerable expense, inconvenience and difficulty. The Full Court concluded that the additional evidence did not support the appeal case and as the judgment following a trial, exceptional circumstances, is a final adjudication of the matters in dispute the Court refused the application.
2. Whether the Yugara appellants were denied procedural fairness?
The Court noted that :
the principles concerning procedural fairness are directed particularly to ensuring that parties to litigation have a reasonable opportunity to present their respective cases
the complaints made by the Yugara People about evidence rulings were discretionary decisions for the trial Judge; and
the conduct of native title litigation like all other litigation must be conducted with reasonable efficiency and expedition and with minimum delay and expense.
The Full Court found that there was no denial of procedural fairness by the trial Judge and the ground of appeal was not made out.
3. Whether the Judge erred in finding that the Yugara appellants had failed to prove continuity of connection to the claim area?
The Full Court noted that the trial Judge had concluded that the Yugara case on continuity must be rejected after a detailed analysis of the evidence which emphasised close consideration had been given to the Yurgara People's historical evidence and witnesses. The Full Court found ‘no error is demonstrated by the Yugara appellants in relation to the fact finding of the Judge. His findings were open to him’ at [164].
4. Whether the Judge erred in finding the Turrbal appellants had failed to prove continuity of connection to the claim area?
The Full Court found that the Judge’s analysis of the biological and more general descent of the Turrbal appellants from the Duke of York and people living in the Brisbane River area was careful and not shown to be inaccurate. The Court did not consider the explanation of forced removal was directly relevant to the Judge's continuity finding and compared the Turrbal appellants' case to the Full Court's decision in Risk (on behalf of the Larrakia People) v Northern Territory of Australia (2007) 240 ALR 75; [2007] FCAFC 46 which concluded that, by reason of dispossession of much of their traditional lands, the claimants were precluded from exercising many of their traditional rights and so, obviously, had great difficulty in showing that their rights and customs were the same as those exercised at sovereignty.
All of the Turrbal grounds of appeal were dismissed.
5. Whether the Judge erred in making a separate determination that native title does not exist in the claim area?
The Yugara appellants did not challenge the ability of the Judge to make a determination that no native title existed as in Sandy No 3 but did challenge the Judge's use of his discretion to make a negative determination. It was argued that the Judge had unreasonably failed to ascertain relevant facts and took into an account irrelevant considerations. The Full Court took into account the fact that there had been a long history to the contested question about whether native title existed in the claim area, the Turrbal and Yugara appellants had failed in their claims, and no other group had come forward. There was no real prospect of another native title group potentially making a claim over the area and finality supported the Court making the negative determination sought. The Full Court was not satisfied that the Judge had erred in exercising his discretion to make the negative determination judgment.
The Court ordered that the Yugara and Turrbal appeals be dismissed.