No native title in Brisbane

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In 2017 a long running Brisbane legal battle was ended with “good news for developers”. Two separate cases for native title over the city of Brisbane were finally defeated at appeal in the Supreme Court. As someone with property in the Brisbane area, it should be good news for me personally, though it’s a decision I greet with sadness.

In 2004 I bought an apartment in Wooloowin – more properly Lutwyche, though the difference between the two is one of property values. I was aware of the difference between Lutwyche and Wooloowin, and chose to call my address the latter, but I was unaware and unconcerned about the history of the land on which it stands or any native title aspect of my strata title.

Yet Aboriginal people used to live in this area in large numbers. A 1930 Brisbane Courier article on Lutwyche noted that “blacks” used to frequent the area in large numbers camping on the Kedron Brook and holding corroborees in the area. Though the Courier couldn’t avoid judgement: “no little trouble was caused the earlier white residents by these even earlier residents. For sheer devilment a party of blacks would sometimes gather around the doorstep of a house, singing and making the night a tragedy by their music; while if they knew that the master of the house was away they would sometimes force an entrance and demand food and tobacco.”

No mention was made about the trouble the early white residents caused to those “even earlier residents”, a tragedy even greater that the music. It is a tragedy ongoing with the Turrbul and the neighbouring Yugara now having their native title appeal claim to Brisbane denied by the Full Court of the Federal Court. The Turrbul or Brisbane tribe owned the country as far north as the North Pine River, south to the Logan River, and inland to Moggill Creek. The Yuraga or Jagera populated a wide area from Brisbane to the ranges at Toowoomba.

The Turrbal people lodged their original claim in 1998 and the Yugara people in 2011. The combined claim area covered the bulk of the Brisbane metropolitan area. It didn’t help there were two separate claims but they both failed this year.

In a judgement handed down July 25, Justices John Reeves, Michael Barker and Richard White dismissed separate appeals filed by Desmond Sandy, Ruth James and Pearl Sandy on behalf of the Yugara-Yugarapul People and by Maroochy Barambah for the Turrbal People. The State of Queensland, Commonwealth of Australia and the Moreton Bay Regional Council were respondents in the Yugara action, lodged in April 2015, and the State of Queensland, Commonwealth of Australia and the Yugara group were defendants in the Turrbal appeal, filed in August 2016..

The Turrbal People claimed they were direct descendants of an Indigenous man called the Duke of York in the early settlement days while the Yugara said the Turrbal People were a sub-group of the Yugara. In 2015 Justice Christopher Jessup found the Yugara had not demonstrated that any of their ancestors were present in the claim area at sovereignty and the Turrbal People had failed to prove they were descended from the Duke of York.

The findings ended any hope of any native title over Brisbane, as the Appeals Court agreed with Jessup neither the Turrbul nor the Yugara People could demonstrate they were biological descendants of those who lived here “at sovereignty’ or a society who had continued to observe traditional laws and customs. While the Court acknowledged settler actions likely contributed to this interruption of connection, there was “longstanding authority” in finding that the “explanation of forced removal … is not directly relevant to the continuity finding”.

As Clayton Utz lawyers said the decision brought “certainty for infrastructure proponents and other developers” in Brisbane however it doesn’t mean those proponents and developers can ignore Aboriginal interests.

All land users have a duty of care to take reasonable and practicable measures to avoid harm to Aboriginal cultural heritage, regardless of native title. Compliance with the “cultural heritage duty of care” typically requires consultation 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. Ordinarily, a former registered claimant will be replaced by a new registered claimant over the same area but the negative determination over Brisbane means the current Aboriginal parties (Turrbul and Yugara) cannot be replaced.

The Aboriginal Cultural Heritage Act 2003 (Qld) provides for Aboriginal parties who aged and die to be succeeded by the members of their old native title claim groups.  How this succession will work in practice if the old claim group becomes become dysfunctional ‒ is an emerging issue. As Clayton Utz says “legislative, judicial or policy guidance will be required.”

That aside, the determination shows, as the lawyers involved in the Mabo case have said the bar is set too high on native title. As the Westender noted after the original 2015 trial, the Brisbane determination indicates the high level of difficulty involved in proving an ongoing connection between the native title claimants and the land since sovereignty, especially where there has been widespread urbanisation or agricultural development.

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