Sandy on behalf of the Yugara People v State of Queensland
[2017] FCAFC 108
•25 July 2017
FEDERAL COURT OF AUSTRALIA
Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108
Appeal from: Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210 File numbers: QUD 139 of 2015
QUD 1097 of 2015Judges: REEVES, BARKER AND WHITE JJ Date of judgment: 25 July 2017 Catchwords: NATIVE TITLE – appeals from consolidated native title determination proceedings of two overlapping claims – where a negative determination of native title was made – oral application to adduce further evidence on appeal – appellate review of discretionary decisions – procedural fairness – whether the judge erred by failing to provide sufficient time to respond to material and refusing to admit documents relating to anthropological reports – whether the judge erred in finding the appellants had failed to prove continuity of connection to the claim area – whether judge incorrectly emphasised habitation and presence of all apical ancestors in claim area at sovereignty – whether judge failed to give sufficient weight to compulsory removal policies – whether the judge erred in making a separate determination that native title does not exist in the claim area
Held: appeals dismissed
Legislation: Federal Court of Australia Act 1976 (Cth)
Native Title Act 1993 (Cth)
Federal Court Rules 2011 (Cth)
Aborigines Protection and Restriction of the Sale of Opium Act 1897 (Qld)
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204
CG v Western Australia (2016) 240 FCR 466; [2016] FCAFC 67
Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia (2015) 325 ALR 213; [2015] FCA 9
Daniel v State of Western Australia [2005] FCA 536
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31
House v The King (1936) 55 CLR 499
Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942
Kenny v State of South Australia (1987) 46 SASR 268
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58
Members of the YortaYorta Aboriginal Community v State of Victoria (unreported, Federal Court of Australia, Olney J, 18 December 1998)
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Risk (on behalf of the Larrakia People) v Northern Territory of Australia (2007) 240 ALR 75; [2007] FCAFC 46
Sandy on behalf of the Yugara People v State of Queensland (No 2) (2015) 325 ALR 583; [2015] FCA 15
Sandy (on behalf of the Yugara People) v Queensland (No 3) (2015) 325 ALR 668; [2015] FCA 210
Sandy (on behalf of the Yugara People) v Queensland [2014] FCA 243
Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191
Western Australia v Fazeldean (No 2) (2013) 211 FCR 150; [2013] FCAFC 58
Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108
Date of hearing: 21 – 23 November 2016 Date of last submissions: 1 December 2016 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 271 QUD 139 of 2015 Counsel for the Appellants: Mr C Gregory Counsel for the First Respondent: Mr J Horton QC and Ms E Longbottom Solicitor for the First Respondent: Crown Law Counsel for the Second and Eighth Respondents: The Second and Eighth Respondents filed a submitting notice Counsel for the Third to Seventh and Ninth to Fourteenth Respondents: The Third to Seventh and Ninth to Fourteenth Respondents did not appear QUD 1097 of 2015 Counsel for the Appellants: Ms M Barambah appeared in person Counsel for the First Respondent: Mr J Horton QC and Ms E Longbottom Solicitor for the First Respondent: Crown Law Counsel for the Second and Eighth Respondents: The Second and Eighth Respondents filed a submitting notice Counsel for the Third to Seventh and Ninth Respondents: The Third to Seventh and Ninth Respondents did not appear
Table of Corrections 17 August 2017 In paragraph 161, “s 233” has been replaced with “s 223” ORDERS
QUD 139 of 2015
BETWEEN: DESMOND SANDY, RUTH JAMES AND PEARL SANDY ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE
Appellants
AND: STATE OF QUEENSLAND
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
MORETON BAY REGIONAL COUNCIL (and others named in the Schedule)
Third Respondent
JUDGES:
REEVES, BARKER AND WHITE JJ
DATE OF ORDER:
25 JULY 2017
THE COURT ORDERS THAT:
1.The notice of appeal filed 7 April 2015 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 1097 of 2015
BETWEEN: MAROOCHY BARAMBAH ON BEHALF OF THE TURRBAL PEOPLE
Appellants
AND: STATE OF QUEENSLAND
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
DESMOND SANDY, PEARL ROSA SANDY AND RUTH JAMES ON BEHALF OF THE YUGARA PEOPLE (and others named in the Schedule)
Third Respondent
JUDGES:
REEVES, BARKER AND WHITE JJ
DATE OF ORDER:
25 JULY 2017
THE COURT ORDERS THAT:
1.The notice of appeal filed 8 August 2016 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
In consolidated native title determination application proceedings brought, respectively, on behalf of the Turrbal People and the Yugara People under the Native Title Act 1993 (Cth) (NTA), the Judge answered, in the negative, a separate question whether, but for any question of extinguishment of native title, native title existed in relation to any and what land or waters in a claim area encompassing modern day Brisbane. See Sandy (on behalf of the Yugara People) v Queensland (No 2) (2015) 325 ALR 583; [2015] FCA 15 (Sandy No 2).
As a result of that answer, there was no need for the Judge to answer further separate questions concerning the identity of the persons or groups who held native title, or the nature and extent of any native title rights and interests.
Subsequently, the Judge, having considered further submissions from the parties, made a negative determination, that is to say, he determined that native title does not exist in relation to any part of the land or waters in the claim area. See Sandy (on behalf of the Yugara People) v Queensland (No 3) (2015) 325 ALR 668; [2015] FCA 210 (Sandy No 3).
At the trial the Turrbal People, including Ms Barambah who appeared as their lay representative, 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 other claimants, the Yugara People, who included members of the Sandy family, disputed the claim that the Turrbal People and only the Turrbal People held native title over the claim area at sovereignty, and contended that 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 (Yugara appellants) now appeal from both the negative answer and the negative determination in their proceeding. The Turrbal People (Turrbal appellants) now appeal from the negative answer in their proceeding, but not directly from the negative determination.
It was not in dispute at the trial that, in the period of a little less than 200 years since agents of the British Crown first explored and British settlers first began settling in the Moreton Bay area, the original Aboriginal holders of native title in the claim area were significantly, and detrimentally, affected by colonial settlement.
The question, in essence, that fell to be determined at the trial was whether, despite the colonial history, either – or both – of the claimants still possessed native title rights and interests today.
“Native title” is defined in s 223(1) and (2) of the NTA in the following terms:
Common law rights and interests
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
The heading to subs (1), “Common law rights and interests”, is an acknowledgement of the holding of the High Court of Australia in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)), which preceded the enactment of the NTA and led to its enactment, that under the common law of Australia native title survived the coming of the new British sovereign in Australia from 1788 onwards.
In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58, the High Court explained the significance of the description in s 223(1) of native title rights and interests as “traditional”. At [87]‑[89], Gleeson CJ, Gummow and Hayne JJ, in a joint judgment, relevantly stated:
87For exactly the same reasons, acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned. They would be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe laws and customs of content similar to, perhaps even identical with, those of an earlier and different society.
88To return to a jurisprudential analysis, continuity in acknowledgment and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown’s radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.
89In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification “substantially” is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.
(Emphasis in original)
Conventionally, therefore, in order to prove (on the balance of probabilities) that native title exists, and that they hold it, claimants under the NTA must establish (1) that they are descended from the persons who held native title at sovereignty; (2) that the native title rights and interests that they now hold are possessed under “traditional” laws and customs, in the sense that the laws and customs under which the rights and interests are possessed are either the same as, or acceptable adaptations of, the laws and customs acknowledged and observed by their antecedents at sovereignty; and (3) that by those traditional laws and customs they maintain a connection with their traditional territory. Involved in the second requirement is the need to prove that the laws and customs giving rise to such rights and interests have been acknowledged and observed by each generation of the claimant group from sovereignty to the present, “without substantial interruption”.
When claimants, and especially their antecedents, have borne the brunt of the advance of British colonial settlement from its earliest days, meeting these Yorta Yorta requirements may present claimants with a significant challenge. Risk (on behalf of the Larrakia People) v Northern Territory (2007) 240 ALR 75; [2007] FCAFC 46 is a case which illustrates this challenge.
It may also be observed that because indigenous people did not maintain a written record of their social organisation, often it is their contemporary oral account of their traditions that becomes of primary importance in a native title claim.
However, sometimes interested non-indigenous persons, including those exploring the new colonial territories and new settlers with an interest in ethnography, made records of their initial encounters with the Indigenous peoples that provide some relevant background in native title claims. From the late 19th and early 20th century, when the discipline of anthropology began to develop in Australia, trained researchers also began entering the field and recording data bearing on the social organisation of Indigenous peoples in many parts of Australia.
In the two claims before the Judge, a relatively rich non‑Indigenous account of Aboriginal people in the claim area from about the mid-19th century was available to the parties and the expert anthropologists called by them to give evidence at the hearing. The published works of Tom Petrie’s Reminiscences of Early Queensland (Petrie) and JG Steele’s Aboriginal Pathways in Southeast Queensland and the Richmond River (Steele) were prominent in this regard.
Along with cuttings from colonial, and, after 1901, State, newspapers of contemporary events at material times, these various publications were tendered at trial along with a history report made by Dr Rod Fisher. Dr Fisher’s report was tendered by Ms Barambah for the Turrbal appellants with the consent of the parties, subject to certain redactions.
Each of the claims had its own pre-trial difficulties, which we deal with further below in relation to the negative determination issue. Neither claimant had the benefit of a trained advocate at trial. It would appear that, so far as the exposition of their respective cases was concerned, each principally relied on the way its case had been framed by its expert anthropologist. These circumstances no doubt heightened the duty of the State of Queensland, as a model litigant, both not to disadvantage the claimants in the presentations of their cases and to assist the Court in its appreciation of the nature of the claims made.
Ultimately, after a long hearing – at which a number of witnesses were called by the parties, including the anthropologist Dr Gaynor MacDonald by the Turrbal appellants; the anthropologist Dr Fiona Powell by the Yugara appellants; and the anthropologist Dr Nancy Williams by the State – the Court found that native title did not exist in the claim area and made the negative determination to that effect.
The evidence given by the witnesses and the anthropologists and other experts was referred to in considerable detail by the Judge in Sandy No 2 and is referred to further below.
The Yugara appellants’ claim ultimately failed because:
(1)the 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 by them; and
(2)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 the rights and interests they asserted were said to be possessed.
The Turrbal appellants’ claim failed:
(1)for the same continuity reasons that the Yugara claim failed; and
(2)because they failed to prove that they were in fact descended from the Duke of York – the very particular ancestral case they put at trial.
Each of these reasons is contested by each of the appellants. Additionally, the Yugara appellants say they were denied procedural fairness in the conduct of the trial; and that the Judge erred in making the negative determination. At the hearing of their appeal, the Yugara appellants also applied to rely on further evidence of their anthropologist, Dr Powell. Each appellant says that the orders made by the Judge should be set aside and that there should be a retrial of their claims.
The Yugara appellants, by their further amended notice of appeal (FANA), appeal on the following grounds (omitting lengthy particulars):
(1)The Judge erred in law by denying them procedural fairness.
(2)The Judge erred in fact and in law by concluding that the requirements of s 223 of the NTA had not been met. The Yugara appellants contend that the correct finding was that the requirements of s 223 had been met.
(3)The Judge erred in fact in finding that:
(a)the ancestor referred to as “Bilinba/Jackey …” was confined in his life and travels to the south of Brisbane, that part of the claim area south of Brisbane was not generally or customarily under his domain, and that none of his major life events occurred in the claim area;
(b)the ancestor referred to as “John/Jack Bungaree (in particular his wife Mary Ann Sandy)” lived well to the south, or to the south-west, of the claim area or that he was one and the same man as John/Hack Bungaree born in 1859;
(c)there was no ancestral or other connection between the ancestor referred to in the pleadings as “Gairballie/Kerwallil King Sandy (in particular his wife Naewin/Sarah)” and the Yugara appellants, and that the Bungarr name was incorrect;
(d)the ancestors referred to as “Alexander/Sandy (Bungarr) and Paimba/Mary Ann Mitchell” did not have any connection with the claim area;
(e)the ancestors referred to as “Lizzie Sandy (in particular her husband William Mitchell)” and “Lizzie Sandy/Brown (in particular her son Billy Brown, who married Topsy)” did not live in, and had no other relevant connection with, the claim area; and
(f)the ancestor referred to as “Kitty (in particular her daughter Molly and husband Ted Myers of Brisbane)” was the mother of Molly Myers, and that there was no evidence that Kitty lived in, or had any association with, the claim area.
(4)The Judge erred in fact and law in his findings at [315(i)-(vii)] (Sandy No 2).
(5)The Judge erred in law by making a determination that native title does not exist in the claim area in the circumstances set out in (1) to (4) above, given his awareness that the lack of resources available to the appellants rendered them unable to prepare properly for the hearing and to present cogent evidence in support.
(6)The Judge erred in law in exercising, and improperly exercised, his discretion as to whether a negative determination of native title should be made:
(a)by failing to take into account a material consideration, namely the interests of the appellants in the circumstances set out in (1) to (5) above;
(b)by failing to take into account a material consideration, namely the interests of the appellants generally in making a determination that native title does not exist in the claim area;
(c)by acting on a mistaken fact, namely that the Judge had determined that the pre‑sovereignty normative system of laws and customs in relation to the claim area had not continued in the claim area, in circumstances in which the Judge had made findings that the whole of the appellants’ evidence related to land outside of the claim area and that the members of the appellant claim group were descended from people who did not have any relevant rights or interests in the claim area at sovereignty; and
(d)by taking into account an irrelevant consideration, namely an incorrect legal assumption that, as a result of the doctrine of res judicata, the appellants would be unable to benefit or rely on new information in a fresh native title determination application over the claim area.
Those grounds were summarised at the hearing of the appeal by reference to the FANA and written outlines of submissions (WO) and reply (WOR), as follows:
PROCEDURAL FAIRNESS
1.The ... judge erred in law by denying the appellant procedural fairness.
a.The ... judge refused to admit documents that the Appellant’s expert anthropologist Dr Fiona Powell relied on for the purposes of her Supplementary Report dated 3 December 2013 [FANA1(i)] (Yugara Written Outline (WO), [6]);
b.The ... judge refused to admit the report of Dr Powell dated March 2014, and its annexures [FANA1(i)] (WO [not dealt with]) (Yugara Written Outline in Reply (WOR), [3]);
c.The ... judge admitted into evidence genealogical and anthropological parts of the redacted historical report of Dr Rod Fisher and failed to provide the Appellant with sufficient time for its experts to further redact, review, or respond to the report [FANA1(j)] (WO, [19], [21]);
d.The ... judge refused to admit the Appellant’s evidence of Robert Mitchell in relation to the Lizzie Mitchell nee Sandy descent line [FANA 1(l)] (WO, [6]);
e.The ... judge refused to admit the evidence of Myfanwy Locke regarding the connection of her family to the claim area passed down to her by her grandfather [FANA1(m)] (WO, [6]).
SOCIETY, AND RIGHTS AND INTERESTS IN THE CLAIM AREA AT SOVERIGNTY (sic)
2.The ... judge erred in law by requiring that all apical ancestors of the Appellant native title claim group must have been present in the claim area at sovereignty (Reasons at [15], [17]) [FANA2(a)] (WO, [7]-[12]).
3.The ... judge erred in fact by requiring the Appellant to establish that members of the Appellant native title claim group had rights and interests in the claim area as part of a local territorial group, rather than across the claim area generally and in areas outside of the claim area (Reasons at [29], [30]) [FANA2(c)] (WO, [14]):
a.The ... judge placed little or no weight on Dr Fiona Powell’s evidence regarding the general allocation of rights and interests across the whole of the claim area arising out of the ownership of language and its territory, mainly the Yugara language, and the claim group’s association with this language’s country (Reasons at [32]) [FANA2(d)] (WO, [12]);
b.The ... judge erred in fact and in law in finding that differences in dialect within the claim area had the capacity to indicate different centres of connection to land that might be relevant to questions of native title (Reasons at [36]) [FANA2(e)] (WO, [13]);
c.The ... judge erred in giving too much weight to Dr Sharpe’s view that F J Watson’s explanation of the origin of the name of the ‘Taraubul group’ as related in some way to the geology of the Brisbane area was most likely correct and giving no or insufficient weight to evidence to the contrary (Reasons at [37]) [FANA2(f)] (WO, [11])
d.The ... judge erred in fact in relying on Petrie’s Reminiscences in recognising the existence of smaller groupings and placing significance on them as centres of identity in relation to rights and interests in land (Reasons at [45]) [FANA2(h)] (WO, [14]);
e.The ... judge erred in fact by placing too little weight on the opinion of Dr Fiona Powell that there was an overarching organisation connected with the Yugara religious system, and placing too much weight on the opinions of Dr Gaynor Macdonald and Dr Nancy Williams that rights and interests were not held more widely than by local groups, and in concluding that rights and interests were possessed by reference to membership of a local group (Reasons at [64]-[67]) [FANA2(1)] (WO, [12]);
f.The ... judge erred in fact in placing too much weight on the map at Figure 55 in J G Steel’s Aboriginal Pathways in Southeast Queensland and the Richmond River in finding that there were three (3) Aboriginal groups within the claim area to the south of the Brisbane River, and disregarded, or placed little or no weight, on other contrary evidence of the extent of the territorial location of the relevant Aboriginal group to the south of the Brisbane River (Reasons at [46]-[59]) [FANA2(i)] (WO, [15]);
g.The ... judge erred in fact in finding that Mulroben’s clan was the same clan that Steele identified as the Coorpooroo clan in Figure 55 in Aboriginal Pathways in Southeast Queensland and the Richmond River, and in limiting his domain to that area (Reasons at [56]) [FANA2(j)] (WO[17]).
CONTINUITY
4.The ... judge erred in fact and in law in finding that Aboriginal tribes occupying the claim area had been displaced by the end of the 1850’s and by placing too much weight on the evidence of Dr Fisher, and by placing little or no weight on evidence to the contrary (Reasons at [72], [73], [74]) [FANA2(n)] (WO, [21]).
5.The ... judge erred in fact and in law in placing too much weight on the report of Dr Fisher in finding that there was not sufficient evidence upon which to infer a continued acknowledgment and observance without substantial interruption of a body of laws and customs within the claim area (Reasons at [81]) [FANA2(r)] (WO, [not dealt with, but refer to paragraphs [21]-[23]).
6.The ... judge erred in law in relying on the fact that the Appellant had failed to undertake a systematic examination of the extent to which, and of the areas in which, aboriginal peoples continued to acknowledge the laws and to observe the customs which characterised their society at sovereignty (Reasons at [81]) [FANA2(p)] (WO, [25]).
7.The ... judge erred in law in finding that evidence about dreaming tracks, stories and songs were irrelevant to the acknowledgment of laws and customs, and finding that there was inutility in relying on purely spiritual beliefs about matters of the distant past in proving a normative system of law and custom relevant to the past 200 years (Reasons at [108]) [FANA2(s)] (WO, [27]).
8.The ... judge erred in law in failing to consider most of the Appellant’s evidence regarding continuity of society and connection to the claim area (Reasons at [152]) [FANA(2)(t) and 2(u)] (WO, [26]).
APICAL ANCESTORS
9.The ... judge erred in fact in finding that the ancestor referred to in the Appellant’s pleadings as ‘Bilinba/Jackey (in particular Jackey Jackey/Kawae-Kawae and 3 wives Nellie, Mary and Sarah; and her brother-in-law Minippi Rawlins’ did not make any contribution to the Appellant’s claim to native title in respect of the claim area (Reasons at [280]) [FANA2(v)] (WO, [31]).
10.The ... judge erred in fact and in law by incorrectly summarising, and placing little or no weight on, the evidence of Eileen Prince having told Dr Fiona Powell that the Appellant’s apical ancestors, ‘John/Jack Bungaree (in particular his wife Mary Ann Sandy)’, had been born in the Botanical Gardens in Brisbane, and incorrectly categorising the evidence as double hearsay or otherwise (Reasons at [282]-[284]) [FANA2(w)] (WO, [29]-[30]).
11.The ... judge erred in fact in finding that the ancestor referred to in the Appellant’s pleadings as ‘Bilinba/Jackey (in particular Jackey Jackey/Kawae-Kawae and 3 wives Nellie, Mary and Sarah; and her brother-in-law Minippi Rawlins’ was confined in his life and travels to the south of Brisbane, that part of the claim area was not generally or customarily under his domain, or that any of his major life events occurred in the claim area (Reasons at [274], [276], [279]) [FANA3(a)] (WO, [31]).
12.The ... judge erred in fact in finding that the ancestor referred to in the Appellant’s pleadings as ‘John/Jack Bungaree (in particular his wife Mary Ann Sandy)’ lived well to the south, or to the south-west, of the claim area or that he was one and the same man as John/Hack Bungaree born in 1859 (Reasons at [284], [289]) [FANA3(b)] (WO, [32(a)]).
13.The ... judge erred in fact in finding that there was no ancestral or other connection between the ancestor referred to in the Appellant’s pleadings as ‘Gairballie/Kerwalli/King Sandy (in particular his wife Naewin/Sarah’ and the Appellant applicants, and that the Bungarr name was incorrect (Reasons at [292]) [FANA3(c)] (WO, [32(b)]).
14.The ... judge erred in fact in finding that the ancestor referred to in the Appellant’s pleadings as ‘Alexander/Sandy (Bungarr) and Paimba/Mary Ann Mitchell’ did not have any connection with the claim area (Reasons at [298]) [FANA3(d)] (WO, [32(c)]).
15.The ... judge erred in fact in finding that the ancestors referred to in the Appellant’s pleadings as ‘Lizzie Sandy (in particular her husband William Mitchell)’ and ‘Lizzie Sandy/Brown (in particular her son Billy Brown who married Topsy)’ did not live in, or had no other relevant connection with, the claim area (Reasons at [307]) [FANA3(e)] (WO, [32(d)]).
THE DISCRETIONARY POINT
16.The ... judge erred in law in exercising, and improperly exercised, the ... judge’s discretion as to whether a negative determination of native title should be made:
a.The ... judge’s decision was so unreasonable and unjust that no reasonable Court could ever have made it, in light of:
i.the way the hearing of the Yugara Appellant’s claim proceeded,
and
ii.the information that was then known to the Court with respect to the availability of credible evidence to support the possibility, if not likelihood, of their being a differently constituted group of native title holders in the claim area that included some or all of the Yugara Appellant’s claim group [FANA6(aa)] (WO, [34]-[38]);
b.by failing to take into account a material consideration, namely the interests of the Appellant in the circumstances set out in the appeal points above [FANA6(a)] (WO, [35]);
c.by failing to take into account a material consideration, namely the interests of the Appellant generally in making a determination that native title does not exist in the claim area [FANA6(b)] (WO, [43]);
d.by acting upon a mistaken fact, namely that the ... judge had determined that the pre-sovereignty normative system of laws and customs in relation to the claim area had not continued in the claim area (Determination at [24]), in circumstances where the ... judge had made findings that the whole of the Appellant’s evidence related to land outside of the claim area (Reasons at [154]) and that the members of the Appellant claim group were descended from people who did not have any relevant rights or interests in the claim area at sovereignty (Reasons at [315]) [FANA6(c)] (WO, [45]);
e.by taking into account an irrelevant consideration, namely an incorrect legal assumption that as a result of the doctrine of res judicata the Appellant would be unable to benefit or rely on new information in a fresh native title determination application over the claim area (Determination at [30]) [FANA6(d)] (WO, [39]-[42]).
The Turrbal appellants, by their notice of appeal, relevantly state the following grounds of appeal:
The Turrbal People QUD 6196 of 1998 applicant party appeal from paragraph one(1) of the Court Order and from paragraph 175 in particular and paragraph 254 of the Reasons for Judgement of Jessup J on 27 January 2015 made from Melbourne in the Sandy on behalf of the Yugara People v State of Queensland (No2) [2015] FCA 15. The Turrbal People QUD 6196 of 1998 applicant party appeal from the single Determination of the Court. In Sandy on behalf of the Yugara People v State of Queensland (No3) [2015] FCA 210 at paragraph one(1) at Brisbane.
…
Grounds of appeal
1.The Primary Judge erred in ordering on 27 January 2015 that native title does not exist in relation to any land or waters of the claim area by:
a.applying Yorta Yorta v Victoria (2002) 214 CLR 422 and Risk v Northern Territory (2007) 240 ALR 75 because:
i. on the facts recorded at paragraph 175 of the Primary Judge’s reason, the Turrbal People are a class of Queensland Aboriginal grouping whose continuity of physical connection was impaired only as a result of statutory protection and preservation policies of the State of Queensland;
ii. provisions of the Native Title Act permit the respectful consideration of such policies
iii. The Queensland policies are different from those of Victoria and the Northern Territory as considered in the abovementioned cases;
b.Failing properly to apply provisions of the Native Title Act which allowed for such respectful consideration.
2. It should be ordered that native title does exist within the claim area, and that it is held by the Turrbal People QUD 6196 of 1998 claimants:
a.for the reasons given above;
b.having regard to:
I. additional statutory references;
II. relevant historical references;
III. Audio visual references.
c.Because the position of the Turrbal People is not frivolous.
The issues, then, falling for determination in these appeals may be stated as follows:
(1)Whether the Yugara appellants should be given leave in their appeal to rely on further evidence, being the affidavit of Dr Powell made 27 October 2016.
(2)Whether the Yugara appellants were denied procedural fairness.
(3)Whether the Judge erred in finding that the Yugara appellants had failed to prove continuity of connection to the claim area.
(4)Whether the Judge erred in finding that the Turrbal appellants had failed to prove continuity of connection to the claim area.
(5)Whether the Judge erred in making a separate determination that native title does not exist in the claim area.
1. SHOULD THE YUGARA APPELLANTS BE GIVEN LEAVE TO ADDUCE FURTHER EVIDENCE ON THEIR APPEAL?
At the commencement of the hearing of the appeals, counsel for the Yugara appellants made an oral application for the Court to receive further evidence in the appeal, being an affidavit of Dr Powell made on 27 October 2016. The application was opposed by both the State and the Turrbal appellants. As will be seen, the application by the Yugara appellants was a continuation of its previously unsuccessful attempts to have further evidence from Dr Powell considered in relation to its application for the determination of native title.
The Court refused the application. We gave short reasons at the time and said that we would provide more complete reasons as part of this judgment. We now set out those reasons.
Dr Powell is the anthropologist whom the Yugara appellants had called to give evidence at the trial. That evidence comprised her affidavits made on 30 April 2012 (Exhibit Y 28), 22 May 2012 (Exhibit Y 29) and 3 December 2013 (Exhibit Y 25), and the oral evidence which she gave in a concurrent session with the anthropologists called by the State (Dr Williams) and by the Turrbal appellants (Dr Macdonald). Two experts in linguistics (Dr Sharpe and Dr Haworth) also participated in part of the concurrent evidence session.
Counsel indicated that the Yugara appellants sought to adduce the further evidence of Dr Powell for four purposes:
(a)to support Ground 2(w) of the amended notice of appeal which concerned the Judge’s treatment of the evidence concerning the birth place of John/Jack Bungaree, one of the claimed apical ancestors of the Yugara;
(b)to support Ground 3(b) of the amended notice of appeal which concerned the Judge’s treatment of the evidence concerning the presence of John/Jack Bungaree in the claim area;
(c)to support Ground 2(i) of the amended notice of appeal which concerned the Judge’s use of a map prepared by JG Steele indicating the presence of three Aboriginal groups within the claim area to the south of Brisbane River; and
(d)to add to the evidence Dr Powell had given at trial concerning the Chepara. These were a group within the Yugara People language group who are said to have occupied extensive parts of the claim area.
Section 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) vests in the Court a discretionary power to receive “further” evidence on an appeal. The exercise of that power is not governed by the common law rules governing the admission of “fresh” evidence on appeal: CDJ v VAJ (1998) 197 CLR 172 at [100]-[102]; [1998] HCA 67. In particular, s 27 does not require a party seeking to adduce further evidence to establish “special grounds” or to obtain “special leave” before the evidence can be adduced: CDJ v VAJ at [107]. Instead, s 27 is, like other provisions conferring judicial power upon a Court, to be construed liberally and without the making of implications or the imposition of limitations not found in the statutory words: CDJ v VAJ at [110].
The plurality in CDJ v VAJ (McHugh, Gummow and Callinan JJ) identified a number of matters bearing upon the exercise of the discretion to admit further evidence, including:
(1)the subject matter of the proceedings, at [104];
(2)the remedial nature of the power to receive further evidence, that is, that the power exists to facilitate the avoidance of errors which cannot otherwise be remedied by the application of conventional appellate procedures, at [109];
(3)the interests of finality in litigation, whether or not the evidence could have been ascertained so as to be presented at trial, and the likely effect of the evidence on the decision at first instance, at [104]. The plurality elaborated these considerations at [111], saying:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
(4)the discretion to receive further evidence is not so wide that the Full Court should admit the further evidence merely because it is useful, at [113];
(5)the Full Court may more readily admit further evidence which is not in dispute and which the Court is itself able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard, at [114];
(6)when there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial, at [114]; and
(7)the failure to have adduced the evidence at trial will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case, at [116].
In the present case, the subject matter of the litigation is an important consideration. As the Full Court noted in Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [34]; [2013] FCAFC 58:
[L]itigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. …
However, the litigation is still to be conducted and determined in accordance with conventional standards.
The further evidence sought to be adduced by the Yugara appellants was substantial. Dr Powell’s affidavit made on 27 October 2016 comprised some 58 paragraphs and some 49 annexures. None of the 49 annexures had come into existence only since the trial and many are of an historical kind. Of their nature, they constitute evidence which could have been adduced at trial. The Court was not provided with an adequate explanation for the material not having been adduced at first instance, although, in fairness to Dr Powell, it can be inferred that the explanation may lie in the limited instructions which the Yugara had given her at the time of trial. That explanation can be derived from the following paragraphs of Dr Powell’s affidavit:
[2]From time to time since 2011 I have done some limited research work pro bono for the Yugara/Yugarapul People Applicant QUD 586/2011 who are now named Yugara People QUD 139/2015 Appellant. In 2013 I attended as an expert witness [on] four days of the consolidated proceedings QUD 586/2011 and QUD 6196/1998 trial hearing (Days 10, 11, 12 and 13).
[3]From my own archived research documents from 2000, which I have only recently located, and other relevant documents identified by myself and Dr Sylvia Haworth I include fresh evidence pertaining to the described claim and country that is associated with the Yugara apical ancestors of the amended Form 1 claimant application filed on 1 April 2014.
….
[57]Since 2000 I have not conducted any interviews with the Aboriginal witnesses associated with the consolidated proceedings or with the claim area or with the Appellant Elders, nor had the time or financial resources to prepare a comprehensive native title connection report in accordance with the Guide to Compiling a Connection Report for native title claim in Queensland Updated November 2013 for the claim area or associated region that was reportedly under the authority of head men in the 1800s. My 2000 research was preliminary and not focused directly either on the Brisbane region or the Appellant’s connections to the Brisbane region, that were the subject of the consolidated proceedings. In my opinion, neither my 2000 FAIRA research and report nor my 2013 supplementary desktop report and subsequent reports contained all relevant connection evidence that pertains to the Appellant.
(Emphasis in original)
As can be seen in these paragraphs, Dr Powell deposes to having located only recently her own “archived research documents from 2000” and to have given evidence in the trial without having prepared “a comprehensive native title connection report”. We observe, however, that the Yugara appellants did not elaborate on the identification of Dr Powell’s research documents from 2000, let alone explain how it was that these were “recently located”. In fact, the Yugara appellants did not comply at all with the requirements of r 36.57 of the Federal Court Rules 2011 (Cth) by filing an interlocutory application to adduce the further evidence supported by an affidavit. They did not contend that the proposed further evidence could not have been ascertained, with an exercise of reasonable diligence, in order to be presented at the trial.
We will set out elsewhere in these reasons the procedural course of the two applications culminating in the commencement of the trial in November 2013. For present purposes, we note that the Yugara appellants did not contend that they had not had a reasonable period of time in which to gather all the evidence they wished in preparation for the hearing of their own application.
It is appropriate to emphasise the importance of parties adducing at a trial at first instance all the evidence on which they propose to rely in support, or defence, of an application. A trial is not to be regarded as a kind of preliminary hearing or a “test run”. The judgment following a trial is the Court’s determination of the matters in issue and, subject to an appeal or, in exceptional circumstances, a re-opening, is a final adjudication of the matters in dispute. It is not to be regarded as provisional, or standing only subject to later confirmation on appeal. These considerations apply no less in proceedings for the determination of native title than in any other proceedings.
In these circumstances, the fact that the historical evidence and opinions of Dr Powell which the Yugara appellants now wish to adduce had been in existence at the time of trial or could, had Dr Powell been appropriately instructed and retained, have been available, is an important consideration.
In addition, there is the difficulty for this Court on appeal in evaluating the significance of the evidence. That is because the Court would have to do so without the anthropologists called by the State and by the Turrbal appellants having had the opportunity to express any view about it, let alone in a concurrent session of the expert anthropological evidence. The proper evaluation of the proposed evidence would have required this Court to give the State and the Turrbal appellants the opportunity to adduce answering evidence, possibly in a further concurrent session. We considered that the expense, inconvenience and difficulty in doing so was not warranted given that the Yugara appellants had not, without an adequate explanation, adduced the evidence at trial, despite having had the opportunity to do so.
We will address elsewhere in the reasons, the particular grounds to which the proposed further evidence was directed. It is sufficient to say at this stage that we were not satisfied that the additional evidence was of such a nature as to indicate that those grounds should be upheld.
These are our reasons for refusing to allow the Yugara appellants to adduce into evidence on the appeal the affidavit of Dr Powell made 27 October 2016.
2. WERE THE YUGARA APPELLANTS DENIED PROCEDURAL FAIRNESS?
Ground 1 of the Yugara appellants’ amended notice of appeal alleged that the Judge had erred by denying them procedural fairness. It particularised 15 different ways in which the denial was said to have occurred. At the hearing of the appeal, the Yugara appellants pursued only five of these complaints, abandoning the remainder.
The five complaints which were pursued, as set out above at [25], were:
(a)the Judge had refused to admit documents which Dr Powell had relied on for the purposes of her Supplementary Report dated 3 December 2013;
(b)the Judge had refused to admit the report of Dr Powell dated March 2014 and its annexures;
(c)the Judge had admitted into evidence genealogical and anthropological parts of the redacted historical report of Dr Fisher, but had failed to provide the Yugara appellants with sufficient time for their experts to redact, review or respond to the report;
(d)the Judge had refused to admit the Yugara appellants’ evidence of Robert Mitchell in relation to the Lizzy Mitchell nee Sandy descent line; and
(e)the Judge had refused to admit the evidence of Myfanwy Locke regarding the connection of her family to the claim area passed down to her by her grandfather.
We will address these complaints in turn. We commence, however, by noting three matters. First, the principles concerning procedural fairness are directed particularly to ensuring that parties to litigation have a reasonable opportunity to present their respective cases.
Secondly, the complaints of the Yugara appellants are, in the main, complaints about evidence rulings and, in one instance, a complaint concerning the Judge’s ruling on an application by the Yugara People to re-open its case so as to be able to present further evidence in the trial. These were discretionary decisions. Ordinarily, appellate review of decisions of this kind is governed by the well‑known principles stated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504‑5. Counsel for the Yugara appellants accepted, in relation to at least two of the complaints, that these were the applicable principles. That means that, unless a denial of procedural fairness is established, the Yugara appellants must show that the Judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or failed to take into account a material consideration. This Court is not entitled to intervene simply because it thinks that, had it been deciding the issue at first instance, it would or may have adopted a different course.
Thirdly, although native title litigation is different from ordinary inter partes litigation and the conduct of it can involve particular complexities, which must be taken into account, it is, nonetheless, like other litigation in the Court: to be conducted with reasonable efficiency and expedition and with minimum delay and expense. It is in the interests of the particular litigants, the litigants of the Court more generally and the public that this should be so in order to achieve a number of purposes: to promote the efficient and effective administration of justice; to maximise the utilisation of the significant resources which the public has placed in the Court; to avoid prejudice to other litigants which may be caused by consequential delays to the hearing and determination of their cases; and to protect litigants in the particular case against cost and delay. See, Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [92]‑[93], [98]; [2009] HCA 27; Kenny v State of South Australia (1987) 46 SASR 268 at 270‑1. These considerations are reflected in the objective of the “overarching purpose” of this Court’s civil practice and procedure provisions, as stated in s 37M of the FCA Act.
(a) The documents relied upon by Dr Powell for the supplementary report dated 3 December 2013
The Yugara appellants complained first about the refusal of the Judge on 16 December 2013 to admit into evidence some documents to which Dr Powell had referred while giving her evidence. 16 December 2013 was the 15th day of the trial, the fourth day of evidence in concurrent session, and the last day of the taking of evidence before the Judge adjourned the hearing for the taking of final submissions.
The fundamental difficulty for this submission of the Yugara appellants is that the Judge did not, on 16 December 2013, refuse to receive any further evidence. Instead, the transcript at pages 1574-6 reveals the following sequence of events:
(a)In answering one question in cross‑examination, Dr Powell said that she had obtained records indicating that there were areas within the claim area looked after by the “headmen” of “clans” and that, when a headman died, his role would pass to a son, or, if there was no son, to a daughter’s son or, if there was no such son to a son of a brother of the headman. Dr Powell said that this practice was explicitly recorded in “this pile of material”. In effect, Dr Powell was referring to a rule of patrifiliation governing control or leadership over particular areas within the claim area.
(b)Counsel for the State, Ms Bowskill QC, enquired whether the material to which Dr Powell referred was annexed to her report. Dr Powell responded saying:
Only the map, not the whole – whole thing which might be helpful for – to have it looked at. You know, it might be helpful – help the Court to have a look through the bundle of material in – from the Howitt collection. So I’m happy to make them available if people want it. …
(Emphasis added)
(c)The Judge then raised the lateness with which this material was being produced, particularly given that the case for the Turrbal appellants and supported by the anthropologist, Dr Macdonald, was that the traditions of the Aborigines in the claim area were based on patrifiliation or matrifiliation. The Judge noted the difficulty for the Turrbal appellants in addressing, at the late stage in the trial, material which they had not previously seen. The Judge raised these concerns with Ms James, representing the Yugara. It seemed that Ms James herself had not seen the material to which Dr Powell was referring but told the Judge:
We’ve tried real hard to get the evidence in … on time.
(d)During the course of the exchange, the Judge told Ms Barambah (representing the Turrbal appellants):
[O]f course you will see the document. I wouldn’t dream of acting on it unless it was put into evidence, and I wouldn’t dream of putting it in the evidence unless you have seen it first, and any objection you made was taken properly into account.
(e)Ms Bowskill QC then commenced a submission concerning the effect of the lateness with which the documents were being produced, saying:
[C]ertainly from the State’s perspective, another original source or a primary source at this stage we would say it’s too late. It’s not – they’re not necessarily documents that lawyers can interpret; they’re matters that need to feed into the overall analysis.
(f)The Judge told Ms Bowskill that she did not have to address on the topic of lateness.
(g)Ms Bowskill then identified the matter which she wished to pursue in cross-examination of Dr Powell. The Judge responded saying:
… I’m not wanting to divert you from your general project with Dr Powell so I will say nothing more on that subject.
The evidence on 16 December 2013 then continued without there being any application by the Yugara appellants to adduce into evidence the material to which Dr Powell had referred. As can be seen from the above summary, the Yugara did not apply to have the materials to which Dr Powell referred adduced into evidence. Dr Powell herself did no more than offer to make the material available “if people want it”. The Judge did raise a concern (firmly it must be said) concerning the lateness with which the material was being adduced and the potential for it to cause prejudice to the Turrbal appellants. However, the Judge did not ever rule on the admission of the material. Instead, he made it plain that he would defer any ruling until Ms Barambah at least had seen it and had had an opportunity to make submissions concerning it. It was for the Yugara appellants to make the application that the Court receive the evidence and they did not do so.
In these circumstances, there is no ruling of which the Yugara appellants can complain. No denial of procedural fairness occurred on 16 December 2013.
We also observe that the Judge had previously granted a significant indulgence to the Yugara appellants on day 11 of the trial by permitting them, despite their non‑compliance with the trial programming orders, to adduce into evidence a supplementary anthropological report of Dr Powell dated 3 December 2013.
(b) Dr Powell’s Report of March 2014
The Yugara appellants’ complaint concerning this report is related to their first complaint. In order to address the complaint, it is necessary to set out some further background.
On the conclusion of the evidence from the anthropologists on 16 December 2013, and after attending to some administrative matters, the Judge adjourned the hearing to Monday, 31 March 2014 for the taking of final submissions. In addition, he made orders for the filing of outlines of submissions by each party and for the filing of outlines of submissions in response (by 28 February and 14 March 2014 respectively). There was no indication at that time that any party would be seeking to adduce further evidence.
However, the filing of two interlocutory applications led to the Court resuming earlier than 31 March 2014. The second of these applications is not material for present purposes as it was an application by a Ms Hannam to be joined as a party to the consolidated proceeding. That application was heard by the Judge on 17 March 2014 and rejected: Sandy on behalf of the Yugara People v State of Queensland [2014] FCA 243 (Sandy 2014).
The first application was filed by the Yugara appellants on 6 March 2014 and is material presently. By that application, the Yugara appellants sought (relevantly) leave to “file additional documents”. The supporting affidavit of Ms James indicated that these documents included those to which Dr Powell had referred on 16 December 2016 and which had been the subject of the exchanges at pages 1574‑6 of the transcript summarised above. Ms James’ affidavit stated the grounds for the application:
(a)new and additional highly relevant information for the proper representation of the evidence after documents handed up late (and/or not properly served) during the trial as exhibits revealed possible inconsistencies that required further investigation.
(b)insufficient time and due process re resources with insufficient assistance for:
(i) representing a number descent groups; and
(ii)responding to the large bulk of documents and evidence put forward by the [Turrbal];
(c)blocks by the [Turrbal People’s] objections;
(d)disproportionate time for the [Turrbal People’s] one descent group of (Connie) Isaacs and other unrelated people with insufficient time for the [Yugara People] descent groups’ connection evidence;
(e)delays from sorry business in 2013 (Desmond Sandy’s health whilst his eldest son was seriously ill in hospital and passed away leaving behind his wife and children);
(f)delays from sickness and hospitalisation (Myfanwy Locke and Robert Mitchell in 2013 and Desmond Sandy in 2014).
The Yugara appellants’ application to adduce further evidence from Dr Powell was mentioned at the hearing on 17 March 2014 concerning the application of Ms Hannam. Ms James told the Judge that this was material which he had requested. Ms Bowskill QC disputed that any such request had been made and the Judge deferred consideration of the issue. Counsel for the Yugara appellants conceded on the appeal that the trial transcript did not contain any indication that the Judge had encouraged the Yugara to think that further material to which Dr Powell alluded should be put forward, let alone that he had requested the material.
The hearing on 19 March 2014 of the Yugara appellants’ interlocutory application filed on 6 March 2014 concerned, in the main, other aspects of that application. The Judge ruled on applications by the Yugara appellants to adduce evidence from a Mr Mitchell and a Ms Locke, to which we will refer shortly as they are the subject of other complaints by the Yugara. The application with respect to Dr Powell’s evidence was mentioned but the Judge deferred consideration of it to the resumption of the trial.
At that resumption on 31 March 2014, the Yugara appellants sought to tender a document prepared by Dr Powell with a face page entitled “First Applicant’s Supplementary Expert’s Evidence” and a heading “Aspects of the pre-and early post‑sovereignty society of the Morton Bay region of southeast Queensland”. Dr Powell included a subheading “Notes prepared for the Yugara/Yugarapul People (QUD 586/2011)”. The notes were organised under six headings, namely:
(1)named local groups, territorial divisions and alliances;
(2)the name for Brisbane and the Brisbane tribe;
(3)chiefs and associated groups;
(4)group alliances;
(5)the privileging of patrifiliation; and
(6)other divisions and pre-sovereignty society.
In addition, Dr Powell annexed several of the documents to which she referred in the notes.
It seemed to be common ground on 31 March 2014 that Dr Powell had prepared these notes earlier that same month and that a copy of the document, “First Applicant’s Supplementary Expert’s Evidence” had been provided to the State and to the Turrbal People at about the time that the interlocutory application of 6 March 2014 had been filed.
The Judge reminded Ms James of what he had said on 16 December 2013 concerning the prejudice to the Turrbal People caused by the delay in the documents being produced. He noted that that prejudice had increased given that both Dr Powell and Dr Macdonald had completed their evidence and that the material had been given to Ms Barambah “in the shadows of the final submissions”. Ms James explained that she had thought that the material had to be “put into a sort of like a report I guess instead of just bringing the documents in”.
The Judge rejected the tender of the material saying:
Well, I’m not suggesting it ought not to have been put into a proper form, but perhaps that ought to have happened some months prior to even 13 December. Now, I’m sorry, I don’t think it would be at all fair to the other parties if this material were admitted. So I reject the tender of the document described as First Applicant’s Supplementary Expert’s Evidence”.
In effect, the Judge refused to allow the Yugara appellants to reopen their case at a late stage in the trial so as to adduce further evidence.
Counsel for the Yugara appellants submitted that the Judge had made an error of the House v The King kind because he had failed to take into account a relevant fact, namely that the proposed Supplementary Expert’s Evidence comprised documents relating to an issue which Dr Powell had addressed in her 2013 Report and in respect of which, on 16 December 2013, she had said that she had “a pile of documents”. It is plain that the Yugara appellants cannot make good that submission as the transcript of the submissions on 31 March 2014 indicated that the Judge had noted those very matters. In fact, during the course of the submissions on 31 March 2014, the Judge referred to pages 1574-1576 of the transcript which we summarised above, and stated expressly that he was willing to assume, in favour of the Yugara appellants, that the documents in the supplementary bundle comprised the “pile of documents” to which Dr Powell had referred on 16 December. That being so, the Judge did not have the misunderstanding which the Yugara appellants imputed to him.
The Yugara appellants did not otherwise identify any error warranting appellate intervention by this Court.
We refer again to the principles concerning the efficient conduct of litigation. It is evident that the Judge was conscious of those principles. In our view, it was proper for him to have done so, especially having regard to the history of this matter. That history includes the history of the Turrbal claim which was first commenced in 1998. We record elsewhere in these reasons (at [239]-[252]) aspects of the progress of that claim but for present purposes note that, in December 2010, the Turrbal claim and a competing claim in respect of an overlap area were listed for trial to commence on 28 November 2011 (see at [240]). However, the dispute in respect of the overlap area was resolved at the mediation in July 2011 and thereafter it was only the claim of the Turrbal which was to proceed on 28 November 2011 (see at [241]).
Earlier, on 18 May 2011, Mr Desmond Sandy, Ms Pearl Sandy and Ms Ruth James (who brought the application and this appeal on behalf of the Yugara appellants) had applied to be joined as respondents to the Turrbal claim (that application was later amended in June 2011). The application failed: see Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 (Sandy 2011).
The Turrbal claim did not proceed on 28 November 2011 because the parties had reached an agreement in principle for a resolution of the proceedings. However, before the agreed position could be implemented, the Yugara appellants filed (on 7 December 2011) their claim, which overlapped with that of the Turrbal People. Thereafter, both applications were the subject of active case management (see at [243] below).
The significant steps concerning the application by the Yugara appellants were as follows (see at [241]-[254] below):
15 December 2011
· Reeves J ordered the Yugara to file and serve an amended application which complied with ss 61(3), 61A(2), 62(1)(a), 62(2)(e) and 62(2)(g) of the NTA.
29 February 2012
· Reeves J ordered that the Deputy Registrar supervise the adoption and implementation of a program for the hearing of proceedings (excluding the issue of extinguishment) in the second half of 2013. See at [243] below.
20 March 2012 – 6 September 2012
· The Court dealt with an application by the Turrbal People initially for the striking out of the application lodged by the Yugara and later for an order that they conduct a fresh process for the authorisation of the making of the application: Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978 (Sandy 2012). See at [244] below.
6 September 2012
· The applications of the Turrbal and the Yugara were referred again to a Registrar for adoption and maintenance of trial programming; and
· both applications were listed tentatively for hearing in the four weeks commencing 25 November 2013. See at [244] below.
18 January 2013
· The two applications were consolidated:
· orders were made that the non‑extinguishment issues be heard and determined prior to the extinguishment issues;
· a suite of orders for the filing of points of claim and points of defence were made;
· the Yugara appellants were ordered to file and serve by 29 March 2013 the expert evidence on which they would rely (and counterpart orders were made in respect of the Turrbal and the State);
· an order was made for a conference of the anthropological experts to take place by 9 August 2013;
· a regime for objections to expert evidence was put in place; and
· orders with respect to the non‑expert witnesses and documentary evidence were made.
23 May 2013
· Extension of the timelines fixed in the programming orders made on 18 January 2013. The Yugara were given until 30 May 2013 to file and/or serve their Points of Claim, a list of their proposed lay witnesses, and the statements or outlines of evidence of their lay witnesses, until 13 June 2013 to file any expert evidence, and until 12 September 2013 to file an index of the documents which they would wish to tender at the trial.
· Similar timelines were imposed on the Turrbal People.
· The Court ordered that the anthropologists for the parties were, by 29 August 2013, to confer before a Registrar and to produce a document identifying the matters on which they were in agreement and on which they differed and the reasons for the difference.
20 September 2013
· An order was made that the adjourned conference of the anthropologists be resumed as soon as possible.
25 November 2013
· The trial commenced.
As can be seen from this sequence of events, the Yugara appellants had been given lengthy notice (about 14 months) of the trial date and ample time in which to prepare for the trial. In particular, specific orders were made by the Court for the timely provision by the Yugara appellants of their expert, lay and documentary evidence. Initially, the Yugara had been required to file all their expert evidence by 29 March 2013. This was later extended to 13 June 2013. The expectation was that by compliance with these orders, all parties would have the opportunity to consider and address the evidence well in advance of the trial and to gather and produce any answering evidence. It is evident that the Yugara appellants did not comply fully with those orders and instead, at a late stage in the trial when it would have been difficult for the Turrbal appellants to adduce answering evidence, sought the introduction into evidence of the new material from Dr Powell.
There is a further matter of context which is pertinent. It is evident that the Yugara appellants had been aware of the claim of the Turrbal People for a very long time. In fact, in Sandy 2011, Reeves J found, at [33], that Ms James had been aware of the Turrbal People’s native title claim “since almost the onset of these proceedings some 13 years ago”. She, and by inference, the Yugara appellants had had a very long time in which to consider making their application and to garner the evidence in support of it.
In these circumstances, the Yugara appellants do not establish any error by the Judge.
(c) The redacted report of Dr Fisher
The Yugara appellants submitted that the Judge had erred by admitting into evidence parts of a report from Dr Fisher containing genealogical and anthropological material and had failed to provide them with sufficient time for their experts to redact further, review or respond to the report.
This complaint is untenable. In [25] of his reasons, the Judge summarised the circumstances in which the redacted report of Dr Fisher was admitted:
The specifically historical dimension of aboriginal society in the Brisbane area was also the subject of a report by Dr Rod Fisher, a historian whose undergraduate qualification was obtained in 1962, whose master’s degree was obtained in 1970 and whose doctorate was obtained in 1974. That report was provided to the Turrbal claim group in November 2009, and was tendered by Ms Barambah. However, Dr Fisher was not available for cross-examination, in consequence of which Ms Barambah had little choice but to accede to the other parties’ redaction requests in relation to the report. As heavily redacted, the report was received into evidence without objection.
(Emphasis added)
In short, Ms Barambah, for the Turrbal appellants, sought the tender of Dr Fisher’s report. However, he was not available for cross-examination. In that circumstance Ms Barambah had had little choice but to accede to the other party’s redaction requests in relation to the report. Plainly, the Yugara appellants could have objected to the admission of any part at all of Dr Fisher’s report or have sought further redactions before consenting to its tender. The only parts of the report which were received into evidence were parts to which neither the State nor the Yugara appellants had objected. There was no denial of procedural fairness to the Yugara appellants by the admission into evidence of Dr Fisher’s report in the redacted form to which the Yugara themselves had agreed.
When these matters were pointed out to counsel in argument, he modified the complaint to one that the Judge had given inappropriate weight to the contents of Dr Fisher’s report, given that he had not been cross-examined. However, even this more confined complaint cannot be made good. The Judge referred on more than one occasion to the limitations on the use of Dr Fisher’s opinion to which the redactions to the report gave rise. Further, the Judge described the contribution of Dr Fisher’s report to a principal thesis in the Turrbal case as being “insubstantial” as the following passage shows:
[84]… [T]he factual basis of the Turrbal case as outlined above does not, in important respects, rise above surmise. In particular, the thesis that it was the displaced tribe of the Brisbane area that constituted the indigenous population (or an important part of the population) of the Mary River Valley in the second half of the nineteenth century is no more than a matter of conjecture. At this point Dr Fisher’s report is, with respect, insubstantial, although I allow for the possibility that an unredacted version of it might be more convincing. The primary materials to which Dr Fisher refers have, for the most part, been put before the Court in support of the Turrbal ancestry case, and I shall refer to them below. The report, however, begs a number of important questions as to the links between the original inhabitants of the Brisbane area and those who, in the late nineteenth century were working on stations in the Mary Valley and thereabouts. As tendered, I do not see in the report any reasoned conclusion to the effect of the thesis referred to here.
(Emphasis added)
In short, this ground of appeal is not made out.
(d) and (e) Refusal to admit evidence of Robert Mitchell and Myfanwy Locke
On the first day of trial (Monday, 25 November 2013) Ms James told the Judge that she had some witness statements from, amongst others, “Mitchell and Locke” which she would like to present but asked to defer doing so until the Thursday of that week. The presentation of the evidence from those witnesses was linked to a proposed amendment to the Yugara application.
On Friday, 29 November 2013, Ms James provided copies of three witness statements to the Judge. One was from Ms Hannam, one was from Mr Mitchell and the third from Ms Locke. Ms Bowskill QC for the State pointed out that the statements were being provided well after the time fixed by the Court’s programming orders and submitted that those orders ought to be enforced. Ms Bowskill did not submit, however, that the State would suffer any particular prejudice or disadvantage if the Yugara were permitted to adduce evidence from the three witnesses.
Ms Barambah for the Turrbal appellants also objected to the Court receiving the material. The transcript of the submissions indicates that the Judge was concerned about the effect of the Yugara appellants’ delay and sought an explanation from Ms James. However, the Judge did not, at that time, rule on whether the Yugara should, despite their non-compliance with the programming orders, be permitted to adduce the evidence. Instead, he asked Ms Barambah to consider the material over the coming weekend and to inform him on the following Monday (2 December 2013) whether she could conduct the case with the additional material without disadvantage.
On Monday, 2 December 2013, Ms Barambah provided the Judge with a written submission objecting to the Yugara appellants being permitted to lead evidence from Ms Hannam. In addition, Ms Barambah told the Judge that the Turrbal opposed the Yugara being able to lead evidence from Mr Mitchell and Ms Locke. There appears to have been an initial misunderstanding by Ms Barambah in answering the Judge but she did tell him “we will be disadvantaged … in terms of the work to be done in addressing the issues individually”.
After hearing further submissions from Ms James and Ms Bowskill, the Judge ruled:
That for me to receive them now at this stage of the case … would place the Turrbal group at a disadvantage because of the additional material they will need to cope with.
Accordingly, the Judge did not permit the Yugara to adduce evidence from Mr Mitchell and Ms Locke.
On the appeal, counsel for the Yugara appellants submitted that the Judge had erred in failing to distinguish between the way in which the Turrbal appellants had expressed their objection to the affidavit of Ms Hannam, on the one hand, and to the affidavits of Mr Mitchell and Ms Locke, on the other. In the case of Ms Hannam, the Turrbal had provided a written submission in support of their objection, but in the case of Ms Locke and Mr Mitchell, the objection had been made only orally. Counsel submitted that the Judge had erred, in the manner of House v The King, in failing to take into account that the Turrbal had not provided a written objection to the Mitchell and Locke affidavits despite having had the opportunity to do so.
In our view, this is not a difference of substance. It was appropriate for the Judge to be concerned at the Yugara’s failure to comply with the programming orders. They were not mere matters of form, but orders made to ensure the fair and efficient conduct of the proceedings. Ms Barambah for the Turrbal appellants was also unrepresented and, plainly, account had to be taken of her ability to deal with the late production of material. In particular, it was appropriate for the Judge to be concerned that, while the Yugara had had months to prepare affidavits from Mr Mitchell and Ms Locke, the late presentation of the material would mean that Ms Barambah would have only a very short time in which to consider, assess and prepare for any testing of the material.
We do not detect error in the Judge’s approach. It was consistent with the case management principles to which we referred earlier, and with the “overarching purpose” of the Court’s civil practice and procedure provisions contained in s 37M of the FCA Act. The Yugara appellants had had more than an adequate opportunity in which to prepare in a timely way their evidence for trial. It was for them to take advantage of those opportunities.
Even if the Yugara appellants’ submissions are considered under the rubric of the principles concerning procedural fairness, in our opinion no error is shown. Those principles are directed to ensuring that a litigant be given a reasonable opportunity to present its case and to answer an opposing case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); [2002] HCA 11. Having regard to the course of events outlined above, it cannot be said that the Yugara appellants were denied such an opportunity in the present case. On the contrary, the Yugara appellants had had a reasonable opportunity to present their case but had, by their own action or inaction, failed to take advantage of the opportunity provided. As the Full Court pointed out in Wyman v Queensland (2015) 235 FCR 464 at [63]; [2015] FCAFC 108, procedural fairness requires that a party be given a reasonable opportunity to present a case: not every opportunity.
For these reasons, we consider that the complaints made by the Yugara appellants in Ground 1 of the notice of appeal which were pursued at the hearing do not succeed.
3. DID THE JUDGE ERR IN FINDING THAT THE YUGARA APPELLANTS HAD FAILED TO PROVE CONTINUITY OF CONNECTION TO THE CLAIM AREA?
At the hearing, grounds 2, 3 and 4 were organised in the FANA under the topics of “Society and rights and interests in the claim area at soverignty (sic)”; “Continuity”; and “Apical ancestors” – as set out at [25] above. We will therefore consider the Yugara continuity of connection question stated at [27(3)] above under those headings.
At [15] of Sandy No 2, the Judge noted that “[e]ach of the applicant groups claims native title on the basis of their biological descent from peoples who, at and immediately after sovereignty, formed part of aboriginal society in south-east Queensland”.
In the context of the Yugara appellants’ appeal, it is appropriate to set out in full what the Judge said at [15] of Sandy No 2:
Each of the applicant groups claims native title on the basis of their biological descent from peoples who, at and immediately after sovereignty, formed part of aboriginal society in south-east Queensland. As will appear below, an aspect of the laws and customs of that society was that presently relevant interests in land and waters were held by members of local tribal groups. That is to say, when biological descent is invoked as the basis of present entitlement — as it is in this case — those presently claiming must establish descent from members of local tribal groups who themselves held the relevant interests in land the subject of the claim. To be descended from a local tribe whose members did not hold such interests would not be sufficient, even if there were, for example, a common language or the acknowledgement of the same body of laws or the observance of the same body of customs. In practical terms, this means that the applicant groups in the present case must establish that they are descended from members of tribal groups which inhabited the claim area, or parts of it.
In that regard, his Honour noted, at [17] of Sandy No 2, that the native title group on whose behalf the Yugara made their application was defined as follows:
The biological and/or traditionally adopted descendants of the following people:
(i) Bilinba/Jackey (in particular Jackey Jackey/Kawae-Kawae and 3 wives Nellie, Mary and Sarah; and her brother-in-law Minnippi Rawlins)
(ii) Gairballie/Kerwalli/King Sandy (in particular his wife Naewin/Sarah)
(iii) Alexander/Sandy (Bungarr) and Paimba/Mary Ann Mitchell
(iv) John/Jack Bungaree (in particular his wife Mary Ann Sandy)
(v) Lizzie Sandy (in particular her husband William Mitchell)
(vi) Lizzie Sandy/Brown (in particular her son Billy Brown who married Topsy)
(vii) Kitty (in particular her daughter Molly and husband Ted Myers of Brisbane).
He then went on immediately to say that there was a significant question as to the “connection of these aborigines, or at least of most of them, to any land which lay within what is now the claim area”. His Honour added that there were questions of descent in some cases, but in others the problem for the Yugara was not so much the fact of descent as the relevance of descent to their claims.
The Judge then turned to the expert witnesses. Relevantly, in relation to the Yugara appellants’ appeal, at [18] of Sandy No 2, his Honour noted the topic of “aboriginal society in the Brisbane area” was dealt with in reports of the anthropologists called by the parties. Having recited Dr Powell’s qualifications, his Honour noted, at [19], that in 2000 she had prepared a report for the FAIRA Aboriginal Corporation with respect to the connections of three indigenous families – Bell, Bonner and Sandy – to people and places in south-east Queensland, and to the Yugara language group. The Judge noted that that report was in evidence before him. He also referred to two of Dr Powell’s affidavits in evidence. One was concerned with answering Ms Barambah’s ancestry case for the Turrbal, and the other referred to the 2000 FAIRA report and updated the Sandy family history. His Honour considered, however, that Dr Powell’s supplementary anthropological report filed just before she gave evidence at trial was her most useful report.
At [26], the Judge noted that Dr Margaret Sharpe and Dr Sylvia Haworth, linguists, were also called by the Yugara.
At [28] and following, the Judge dealt with the topic of “Aboriginal society in the Brisbane area at sovereignty”. Here he referred to the evidence of the anthropologists, including Dr Powell and also referred, at [34], to a paper written by FJ Watson entitled Vocabularies of Four Representative Tribes of South Eastern Queensland, published in 1944, and quoted from it. He noted at [32] Dr Powell’s evidence about “language owners” and the connection between language and connection to land. He also noted the map that Watson had prepared, which showed four broad “lingual divisions”, and which his Honour reproduced in his reasons. He said the “Kabi” and “Wakka” divisions corresponded very approximately with the “Gubbi Gubbi” and the “Wakka Wakka” language groups referred to by Dr Williams in her evidence – which the Judge had earlier set out at [29].
The Judge, at [36], said that Dr Williams agreed with Watson’s map, at least as an approximation. So did Dr Macdonald, but only in the purely linguistic sense. He said that he understood Dr Macdonald to take issue with any proposition that would equate connection, in the native title sense, with the very large area of land marked as “Yugarabul” on Watson’s map. He noted that she stressed, appropriately in his view, the differences in dialect that seemingly existed within that area, and which had the capacity to indicate different centres of connection to land that might today be relevant to questions of native title. The Judge added that Dr Powell, as he understood her, was content to accept the broad outlines of Watson’s divisions, save that she had reservations about the reliability of his depiction of the Yugumbir division – a controversy which his Honour considered could be left for another day.
This history shows that the disputation between the Turrbal and Yugara appellants, and a number of other persons and groups, about the existence of native title in this claim area has been extensive, relatively well known and long standing. Indeed, it has continued for most of the time that the NTA has been in existence and has involved one indigenous respondent in the Yugara claim and four claims in all, which were all subjected to the notification process in the NTA. It therefore puts the observations of the Judge in the negative determination judgment about the need for finality in these proceedings (see, for example, [253] immediately below) in a particular and special context.
After rejecting the applications made by the Yugara and Turrbal claimants (see at [234] and [235] above), the Judge devoted his reasoning in the negative determination judgment to essentially three matters: the Court’s power to make a negative determination; QSNTS’ submissions as to why such a negative determination should not be made; and Mr Ruska’s submissions to like effect. In summary, his Honour found that he had the power to make a negative determination (see Sandy No 3 at [19]); he rejected the submissions of QSNTS; and he also rejected those of Mr Ruska. Ultimately, he concluded that it was in the public interest to make the negative determination. He said in the penultimate paragraph of his judgment (Sandy No 3 at [41]):
For more than 16 years now, there has been, in the files of the court, an application for a native title determination in relation to the claim area. Those who resist the outcome proposed by the State implicitly contend that this proceeding should be concluded without the making of any determination of native title. That is not a situation which a court exercising the judicial power of the Commonwealth should find attractive.
“The outcome proposed by the State” was, in fact, the only submission the State is recorded as making to the Judge with respect to the negative determination judgment. That submission was that (Sandy No 3 at [6]):
… Question (a) … having been answered in the way that it was …, the court should now proceed to make a determination under the [NTA] that native title does not exist in relation to land and waters in the claim area.
In rejecting the submissions made by QSNTS, the Judge reached the following conclusions:
(1)That the normative system of laws and customs of the society which the parties had agreed existed at sovereignty within and beyond the claim area (see Sandy No 3 at [21]) had not continued substantially uninterrupted to the present time (Sandy No 3 at [22] and [24]).
(2)While this conclusion was based on the evidence called at the trial by the Yugara and Turrbal claimants, the question to which that evidence was addressed was “concerned with the continuity of society as such rather than the rights and interests” of either of those claimants (see Sandy No 3 at [22] and [24]).
(3)The Court did not determine who, other than the claimants, may be entitled to obtain a determination of native title because, after the Turrbal application was notified to the public in 2000 because no other groups came forward to make such a claim (see Sandy No 3 at [25] and [34]). Specifically (Sandy No 3 at [23]):
I am not prepared to infer, on a no more solid basis than the confinement of the existing proceedings to the Turrbal and Yugara applications, that there are, in probability, other groups which would have potentially viable claims in relation to the claim area.
(4)The possibility raised by the SERRP of other traditional societies existing in the claim area at sovereignty (Sandy No 3 at [26]), or other groups existing which may have a claim with respect to the claim area (Sandy No 3 at [30]) had been considered at the time of the interlocutory applications in November 2012 and October 2013 and rejected (Sandy No 3 at [28]). It was now too late for them to come forward with such a claim (Sandy No 3 at [31] and [34]). Specifically (Sandy No 3 at [30]):
There would be, in my view, something odd about a system which permitted successive native title applications to be made with respect to the same area of land on the ground that more information had come to hand, and in which the only persons who could not benefit would be those who had taken the trouble to bring their cases forward in a timely way (ie, because the claims determined in those cases would be res judicata).
It is worth adding that, in the course of rejecting the submissions of QSNTS, as he did in his ultimate conclusion (see Sandy No 3 at [254] above), the Judge underscored the importance of finality in the proceedings before him. The following provide two examples (see Sandy No 3 at [31] and [38]):
… There is a strong public interest in the finality of litigation and, as every litigant knows, parties generally have no alternative but to marshal their evidence within the time frames which the court permits for the purpose. …
There is, in my view, a strong public interest in having every known claim over a defined area brought forward for adjudication in the one proceeding.
As to Mr Ruska’s submissions, the Judge concluded that he had been afforded an ample opportunity to advance his case at trial (as outlined at [251] above) and it would be inappropriate to preserve that opportunity in the future. Specifically (Sandy No 3 at [38]):
[T]he position adopted by Mr Ruska involves the proposition that a person who has grounds for a belief, and does believe, that he holds native title in relation to an area of land or waters may participate by way of non-active respondency to the claim of another group over that land and those waters, may decline to make his own application and have it joined with the existing one, and may then, after the existing case is resolved unfavourably for the applicants in it, make his own application for recognition of native title. For someone to be permitted to proceed in that way would, in my view, bring the administration of native title claims in the court into disrepute … Had Mr Ruska wanted to make a native title claim in relation to the claim area, he should have done so.
The Yugara appellants contended that the negative determination judgment was one to which no reasonable decision-maker could come. That was so, they submitted, because the Judge unreasonably failed to ascertain relevant facts that were readily available and were centrally relevant to the decision to be made. They identified the material in question as the report of Dr Redmond entitled “Comments on the Yagarabal and Turrbal claims areas and claimant groups” dated 10 June 2013, and the report of Dr Mayo entitled “Preliminary genealogical report for South East Region Research Project (SERRP)”. They submitted that this material was readily available because it had been relied upon by the State during the interlocutory applications it brought in November 2012 and October 2013. They also submitted that the material was centrally relevant because it supported the possibility of there being a successful claim to the area in the future “that would include some or all of the Yugara appellants’ claim group”.
The Yugara appellants also contended that the Judge took into account an irrelevant consideration “namely the incorrect legal assumption that the doctrine of res judicata would disable the Yugara appellant from benefiting or relying on new information in a fresh native title determination application over the claim area”. They submitted this was incorrect because, when a native title determination application is dismissed, there is no judgment with which the cause of action has merged and the principle of res judicata does not therefore apply. Conversely, the Yugara appellants submitted that the Judge had failed to take account of a relevant consideration, namely the benefits that would be afforded to the Yugara appellants if, instead of making a determination of no native title, the Judge had dismissed their claimant application, as occurred in Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 at [219] and Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 at [4007]. In support of this contention, the Yugara appellants pointed to the Judge’s finding in his main judgment to the effect that the evidence presented by the Yugara appellants “related not to the claim area at all but to areas to the south and south-west of the lower Logan, and around Beaudesert” (Sandy No 2 at [154]). Finally, the Yugara appellants submitted that the Judge had acted on a mistake of fact, namely that he had determined that the pre-sovereignty normative system of laws and customs in relation to the claim area had not continued. This was a mistake, so they submitted, because of the finding referred to above and to his later rejection (Sandy No 2 at [315]) that “[the Yugara appellants], and the group they represent, are descended from people who had any relevant rights or interests in land or waters in the claim area”.
The State submitted that the Judge’s discretion had not miscarried. First, it submitted that the Yugara appellants had objected to the Judge receiving the SERRP reports when the State had sought to rely upon them, and it could not now claim that the Judge was in error by proceeding without considering those reports. Further, the State submitted that there was a strong public interest in the finality of litigation. Further still, it submitted that the Judge was not incorrect in the conclusion he drew about the effect of the doctrine of res judicata. It submitted that, in making those observations, the Judge had not made a finding about how res judicata might operate in this case and was “doing no more than testing his conclusion against general considerations of fairness and logic”. Furthermore, it submitted that the Judge did not make a finding that the Yugara appellants would be precluded by the doctrine of res judicata from making fresh applications with new material and that the Judge was properly cognisant of the “character of native title claims and the unique statutory arrangements that attend them”.
In a set of supplementary submissions, the State set out the evidence or findings upon which it relied to demonstrate it had discharged its onus in seeking a determination that no native title existed in the claim area. They were as follows:
A. Main judgment [Sandy No 2]:
i. Yugara: [153]; [155]; [315] (to be read in conjunction with [17]);
ii. Turrbal [108], [109]; [129]; [131]; [253]; [254]
iii. both cases: [67]; [81]; [316].
B. Negative determination judgment [Sandy No 3]:
i. Yugara: [4];
ii. both cases: [18]; [22]; [23]; [29]; [34]; [38].
The discretionary power of the Court to make a negative determination of native title following a contested hearing on a claimant application was, as has already been mentioned above, authoritatively affirmed on appeal in Badimia FC. The Court noted in Badimia FC (at [1]), that that power had previously been exercised “[o]ver many years, from time to time and where considered appropriate”. Some examples of this approach include Members of the YortaYorta Aboriginal Community v State of Victoria (unreported, Federal Court of Australia, Olney J, 18 December 1998) and Daniel v State of Western Australia [2005] FCA 536 per Nicholson J.
As has also been mentioned above, since this is a discretionary power, the Yugara appellants accept that the judgment in House v The King at 505 applies. Thus, to succeed in this challenge, the Yugara appellants need to show that the Judge acted upon a “wrong principle”; or allowed “extraneous or irrelevant matters to guide or affect him”; or did not take account of “some material consideration or made a mistake of a fact” (House v The King at 505). The Court also observed in House v The King (at 505) that, when it did not appear how the Judge had reached his or her conclusion, “if upon the facts it is unreasonable or plainly unjust” an appellate court may infer that there has been a failure properly to exercise the discretion.
Dealing first with the latter, we reject the Yugara appellants’ contention that any such unreasonableness was apparent in the negative determination judgment. In his reasons for that judgment, the Judge explained at length, and in detail, why he had reached the conclusions he did. In particular, as the summary of the negative determination judgment reasoning shows (see at [254]–[258]), the Judge found that the Turrbal and Yugara appellants had failed in their claims because they had failed to show that either they, or their ancestors, had any relevant connection with the claim area. While he accepted that the Yugara appellant may be able to make out a claim to native title in areas to the south of the claim area and, therefore, he declined to say anything that might adversely affect that possibility, he still found that this possibility did not support their claims with respect to the claim area. The Judge also made it clear that, based on the evidence that had been called by the Turrbal and Yugara appellants and the absence of any claim and, therefore, any evidence from any other group, he found that the acknowledgement and observance of the traditional laws and customs of the society that existed in the claim area at sovereignty had not continued substantially uninterrupted since that time. We interpolate that this conclusion is supported by the findings in the main judgment to which the State referred in its supplementary submissions (see at [259] above), in particular, with respect to the Yugara appellants’ claims, Sandy No 2 at [81], [153] to [155] and [316]. With respect to the absence of any other claim, the Judge had regard to the fact that no other group had come forward and made a claim despite the Turrbal appellants’ claim being publicly notified as early as 1998, and there being ample opportunity for any such group to do so. Finally the Judge decided that, in circumstances in which there had been a long history to the contested question 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, finality supported him making the negative determination sought. While he did not specifically mention it in his reasons, this conclusion is supported by the procedural history to these two proceedings which has been outlined above (see at Sandy No 2 [238]–[245]).
Next, we reject the Yugara appellants’ contention that the Judge took account of an irrelevant consideration concerning the application of the doctrine of res judicata. His reference to that doctrine is set out at [255(4)] above. When that observation is considered in its proper context, we agree with the State that the Judge did not make a finding that was adverse or disabling to the Yugara appellants. Rather, he referred to that doctrine to reinforce his point that, in circumstances in which the Yugara appellants had lost in their claim, it would be unfair to take account of the interests of parties who had not bothered to bring forward a claim in a timely manner.
Before we turn to the relevant considerations of which the Yugara appellants claim that the Judge failed to take account, we will address their contentions that the Judge acted on a mistake of fact or, perhaps more accurately expressed, made contradictory findings. This was said to arise from, on the one hand, the Judge’s conclusions that the acknowledgement and observance of the pre‑sovereignty normative system of laws and customs in relation to the claim area had not continued substantially uninterrupted and, on the other, his conclusions in the main judgment that the evidence presented by the Yugara appellants “related not to the claim area at all but to areas to the south and south-west of the lower Logan, and around Beaudesert” (Sandy No 2 at [154]) and his ultimate conclusion that “[the Yugara appellants], and the group they represent, are [not] descended from people who had any relevant rights or interests in land or waters in the claim area” (Sandy No 2 at [315]). The possibility, acknowledged by the Judge, that the Yugara appellants may be able to make out a claim to areas south of the claim area is not inconsistent, in our view, with his conclusion that their evidence failed to make out the conditions for a successful claim to the claim area. Specifically, that the normative system of laws and customs of the society that was agreed to exist in the claim area at sovereignty had not, on that evidence, continued substantially uninterrupted since that time. This contention therefore has no merit.
The first of the two relevant considerations of which the Yugara appellants contend the Judge failed to take account was the “benefits that would be afforded to the Yugara appellants if, instead of making a determination of no native title, the Judge had dismissed their claimant application”. In this respect, they again rely upon the statement in the main judgment (Sandy No 2 at [154]) to the effect that their evidence mostly, if not wholly, related to areas to the south of the claim area. Since this evidence about areas off the claim area did not avail them to make out their claims to the claim area, it obviously could not assist them to support a future claim to the claim area. That being so, it is difficult to see how simply dismissing their claim, rather than making the negative determination, could possibly provide a benefit to them. In any event, this is plainly not a relevant consideration of which the Judge was bound to take account.
The second relevant consideration concerns the Yugara appellants’ contention that the Judge failed to take account of the reports of Dr Redmond and Dr Mayo. They contend that those reports were readily available and centrally relevant. On the latter, they claim those reports supported the possibility of a successful claim being made to the claim area in the future which may include members of the Yugara appellants’ claim group. On the former, there does not appear to be any dispute that the two reports were, at least in their preliminary form, readily available. The same could probably also be said of the final reports, if the Judge had decided to wait until they were produced. However, their central relevance to the Yugara appellants’ claims is much more difficult to accept. First, on the two occasions when the existence of those reports was put forward by the State, as reasons to delay the trial of these proceedings, that course was opposed by the Yugara appellants. In adopting that position, it must be assumed that they considered whether those reports were relevant to, that is, supported their claims, and concluded they were not. If they were not relevant then, nothing has been put forward since to show why that state of affairs has changed. Secondly, it is important to note that the QSNTS put forward those reports to oppose the Judge making the negative determination judgment on the ground that, in their final form, they may show that groups other than the Yugara appellants may have valid claims to the claim area. That was done in circumstances where the Yugara appellants had failed in their original claims and had also failed to persuade the Judge that they should be able to re-open their cases for the purposes of calling further evidence to support those claims (see at [234] above). There is therefore no basis for the Yugara appellants’ assertion that these possible future claims may include members of their claim group. In any event, the Judge rejected QSNTS’ reliance on these two reports to advance those possible future claims, and the Yugara appellants have not challenged that conclusion. The Yugara appellants have therefore failed to establish the central relevance of those reports to any claims they may have over the claim area. It follows that this contention also has no merit.
For these reasons, we do not consider the Yugara appellants have established that the Judge erred in exercising his discretion to make the negative determination judgment. It follows that grounds 5 and 6 of the FANA must be dismissed.
DISPOSITION
For these reasons, we consider that neither the Yugara appellants nor the Turrbal appellants have made out their grounds of appeal. Accordingly, both their appeals must be dismissed.
The orders be as follows:
Yugara appeal
1. The notice of appeal filed 7 April 2015 be dismissed.
Turrbal appeal
1. The notice of appeal filed 8 August 2016 be dismissed.
I certify that the preceding two hundred and seventy-one (271) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Reeves, Barker and White. Associate:
Dated: 25 July 2017
SCHEDULE OF PARTIES
QUD 139 of 2015
Respondents
Fourth Respondent:
BRISBANE CITY COUNCIL
Fifth Respondent:
LOGAN CITY COUNCIL
Sixth Respondent:
REDLAND CITY COUNCIL
Seventh Respondent:
BRISBANE PORT HOLDINGS PTY LTD
Eighth Respondent:
TELSTRA CORPORATION LTD
Ninth Respondent:
THE SHELL COMPANY OF AUSTRALIA LIMITED ACN 004 610 459
Tenth Respondent:
INCITEC FERTILIZERS LIMITED
Eleventh Respondent:
MOONIE PIPELINE COMPANY PTY LTD
Twelfth Respondent:
CENTOR AUSTRALIA PTY LTD
Thirteenth Respondent:
EDDIE RUSKA
Fourteenth Respondent:
QUEENSLAND SOUTH NATIVE TITLE SERVICES
QUD 1097 of 2015
Respondents
Fourth Respondent:
QUEENSLAND SOUTH NATIVE TITLE SERVICES
Fifth Respondent:
BRISBANE CITY COUNCIL
Sixth Respondent:
MORETON BAY REGIONAL COUNCIL
Seventh Respondent:
REDLANDS CITY COUNCIL
Eighth Respondent:
TELSTRA CORPORATION LTD
Ninth Respondent:
GARRY MURPHY
Tenth Respondent:
BRISBANE PORT HOLDINGS PTY LTD
Eleventh Respondent:
EDDIE RUSKA
Twelfth Respondent:
LOGAN CITY COUNCIL
Thirteenth Respondent:
THE SHELL COMPANY OF AUSTRALIA LIMITED ACN 004 610 459
Fourteenth Respondent:
INCITEC FERTILIZERS LIMITED
Fifteenth Respondent:
MOONIE PIPELINE COMPANY PTY LTD
Sixteenth Respondent:
CENTOR AUSTRALIA PTY LTD
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