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

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.