Jessup J
The Court made orders that native title does not exist in relation to any part of the land or waters in the Determination Area, as described in the Schedule.
This decision followed interlocutory orders made by Jessup J on 27 January 2015, in Sandy on behalf of the Yugara People (No 2) v State of Queensland [2015] FCA 15. In that decision, Jessup J found found that the Yugara/Yugarapul and the Turrbal applicants did not possess communal, group or individual rights and interests in relation to any land or water in the claim area (which including Brisbane metropolitan and surrounding areas).
Orders sought by the Native Title applicants
The Yugara/Yugarapul people asked the Court to stay the previous orders or not to make a final determination and allow them to re-open their case for the purpose of leading additional evidence.
At [4] Jessup J stated:
the proceeding to date has involved a final hearing on the merits, in which the Yugara applicants had, and exercised, the full participation rights of any party. There is nothing before the court that would justify taking the exceptional – and, it must be said, remarkable – step of allowing them to re-open their case on no better ground than that, with more time at their disposal, they might be able to find more evidence that would support their claim.
The Turrbal people sought that the order made on 27 January 2015 should be stayed for six months to allow consultation with extended kin, with a view to re-formulating a wider society native title application.
Jessup J rejected this application, stating at [5], 'That is, quite clearly, no proper ground for the court to stay the operation of orders which finally dispose of the application which [the applicant] did make.’
The State asked the Court to make a determination under the Native Title Act 1993 (Cth) (NTA) that native title does not exist in relation to land and waters in the claim area.
Queensland South Native Title Services (QSNTS), who had been granted leave to make submissions on the appropriate form of the orders, argued that because of the procedural setting of the case, the Court had no power to make a negative native title determination.
Main Issue Raised by QSNTS
At [9], QSNTS accepted that the Court can make a negative native title determination under section 225 NTA but submitted that a negative determination must first have been the subject of an application under s 13 NTA and, at [21], in the circumstances that have arisen, the Court should not exercise its power to make a negative determination.
This included a submission that alternative claimant applications were ‘conceivable’ in that evidence disclosed by a SERRP research project conducted by QSNTS disclosed the ‘possible existence of other traditional societies at sovereignty' in the claim area.
Jessup J rejected all of the propositions advanced by QSNTS.
The Court noted, applications for determinations had been made, the Act contemplates the making of a negative determination within the range of possibilities and there is no basis to claim that the court has no power to rule that native title does not exist because no-one had made a formal application in that regard at [16-17].
Other considerations
Jessup J rejected an application by a non-active respondent who wanted the applications dismissed but no negative determination made because the respondent wanted the option of commencing his own native title claim. His Honour noted, at [38], 'There is ... a strong public interest in having every known claim over a defined area brought forward for adjudication in the one proceeding.'
The Court also noted that an application had existed over the claim area for more than 16 years and it was not attractive to concluding the proceedings without making any determination.