Jessup J
In this decision it was found that native title does not exist with respect to two applications for the recognition of native title in the Brisbane area. The applications were brought under s 61 of the Native Title Act 1993 (Cth) (NTA) by:
the Turrbal People, lodged on 30 September 1998; and
the Yugara/Yugarapul People, lodged on 7 December 2011.
The State of Queensland was the respondent under s 84(4) of the NTA. 12 other respondents, including the Commonwealth of Australia, Brisbane, Redland and Logan City Councils and Moreton Bay Regional Council, Brisbane Port Holdings Pty Ltd and the Moonie Pipeline Company Pty Ltd, did not participate in the subject matter of this decision.
The Yugara/Yugarapul People’s application relates to the whole of the claim area, while the Turrbal People, recognising that native title was likely to have been extinguished, claimed only certain areas.
Issues
The Court set out the issues for consideration, at [4]:
But for any question of extinguishment of native title:
does native title exist in relation to any and what land and waters of the claim area?
in relation to that part of the claim area where the answer to (a) above is Yes:
who are the persons, or each group of persons, holding the common or group rights comprising the native title?
what is the nature and extent of the native title rights and interests?
As Jessup J found that native title did not exist, only the issue identified at (1) above was considered.
The Law
Jessup J relied on Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 440 when considering the characteristics of native title under s 223 NTA.
Jessup J set out, at [14] that:
in the present case it is crucial, that the relevant rights and interests be possessed under the traditional laws and under the traditional customs, referred to in the definition of “native title”. That is to say, the applicants must establish what those laws and customs said, and continue to say, on the question of entitlement to such rights and interests, and bring themselves within those entitling provisions. The importance of these considerations, in the present case, lies in the fact that, at least for relevant purposes, it was filiation that grounded the transfer of interests in relation to land and waters from one generation to the next. Absent the continuous existence of a visible society some of whose members were possessed of the relevant interests, it is inevitable that the applicants, in both applications, would seek to make good their claims that they are the ones now so possessed by reference to their biological descent. The present case has become the occasion to test the viability of those claims.
The Basis of the Applicant’s Claims
Jessup J set out, at [15]-[17] that the applicants based their native title claims on biological descent from peoples who, at and immediately before sovereignty, formed part of Aboriginal society in south-east Queensland which raised questions about connection to the land in the claim area and the relevance of descent to the Yugara applicants native title claims.
Turrbal Claim
The Turrbal applicants proposed that, after the original inhabitants had been displaced from their lands in the claim area, they migrated inland and northwards, ultimately to secure employment on settlers’ properties in areas such as the Mary River Valley, while maintaining their tribal cohesiveness and, inferentially, continuing to acknowledge and to observe their traditional laws and customs. Then, with the commencement of the Aboriginals Protection and Restriction of the Sale of Opium Act on 1 January 1898, they were removed to settlements, most relevantly for the Turrbal case, the Barambah settlement, and later re-named Cherbourg. They continued to acknowledge and to observe those laws and customs, which provided the normative system which governed rights and interests in relation to land and waters notwithstanding the physical absence of the people.
Jessup J found at [128] that:
… it could not be seriously suggested that the Turrbal people … had or have either the numbers or the patterns of behaviour, rooted in normative laws and customs, to constitute a society in their own right.
And at [129] observed:
I would not hold that the patterns of behaviour … bespeak the existence of a society characterised by a normative system of laws and customs in the Yorta Yorta sense. To have been told, as these witnesses were, about traditional customs, even those implying obligation, is not enough. “Their content may be known, but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests ....” (Yorta Yorta 214 CLR at 445-446) To have visited places of traditional interest, when in the claim area for other reasons … is not enough. And to have witnessed or participated in ceremonies, rituals and the like ... is not enough.
Jessup J concluded in relation to the Turrbal claim, at [131]:
Taking all of the evidence into account, I am not satisfied that there has been an uninterrupted acknowledgement of traditional laws, or observance of traditional customs, under which rights and interests in the land and waters of the claim area might arise, since sovereignty, on the part of the Turrbal group and those from whom they claim to be descended. Indeed, on the evidence in this case, I would hold the contrary to be the situation.
Jessup J rejected the Turrbal evidence about biological descent, stating at [253],'… I am not prepared to put aside the objective evidence in favour of the less reliable, and generally more equivocal, oral history set out in the affidavits of [the applicant], of her children and of her friend …'
Yugara/Yugarapul Claim
Jessup J observed at [153]:
Much of this evidence is concerned with stories, beliefs, fears, taboos, habits and activities which have relevance at the personal or family levels, and which might be expected to be present in an indigenous society having continuity in the Yorta Yorta sense. But they are not circumstances from which the continued existence of the society which existed at sovereignty might be inferred. In point of content, the matters to which I have referred above do not bespeak the existence of a normative system of laws and customs. Further, and crucially, the evidence does not cover anything more than a fraction of the period with which the court must be concerned: even to go back to the grandparents of the oldest of the Yugara applicants, there remains the better part of a century with respect to which the court does not have any relevant evidence.
His Honour noted at [154]:
… for the most if not the whole part, the evidence related not to the claim area at all but to areas to the south and southwest of the lower Logan, and around Beaudesert. Although it was the Yugara case that the area in which they hold native title extends as far north as the Pine, at the point of bringing forward concrete evidence from which, even arguably, continuity might be inferred, everything occurred at, or to the south of, the Logan/Beaudesert area.
Conclusion
At [316] Jessup J rejected the claims that the Yugara/Yugarapul and Turrbal applicants possess communal, group or individual rights and interests in relation to any land or water in the claim area on the basis that:
"...there has not been a continued, substantially uninterrupted, normative system under which the traditional laws and customs which would sustain those rights and interests were acknowledged and observed, and because no member of either claim group would, under those laws and customs as they existed at sovereignty and immediately thereafter, be recognised as possessed of those rights and interests.
Of Note:
The court rejected the Yugara/Yugarapul applicant’s submission that, because they had not had an opportunity to cause a thorough, professional, assessment of their connection, and the connection of their ancestors, to the lands and waters of the claim area to be carried out, the court should not find that native title did not exist.
Upon the death of an original Turrbal applicant, the only named applicant sought the deceased’s name be kept on the record as an applicant. The State supported this and, although the court had misgivings, the name was not removed.