FEDERAL COURT OF AUSTRALIA

Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108

ORDERS

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

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:

1    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).

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.

3    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).

4    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.

5    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.

6    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.

7    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.

8    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.

9    “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.

10    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.

11    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:

87    For 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.

88    To 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.

89    In 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)

12    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”.

13    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.

14    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.

15    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.

16    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.

17    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.

18    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.

19    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.

20    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.

21    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.

22    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.

23    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.

24    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.

25    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]).

26    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.

27    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?

28    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.

29    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.

30    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.

31    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.

32    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].

33    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].

34    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.

35    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)

36    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.

37    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.

38    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.

39    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.

40    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.

41    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.

42    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?

43    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.

44    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.

45    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.

46    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.

47    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

48    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.

49    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.

50    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.

51    In these circumstances, there is no ruling of which the Yugara appellants can complain. No denial of procedural fairness occurred on 16 December 2013.

52    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

53    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.

54    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.

55    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).

56    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).

57    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.

58    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.

59    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.

60    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.

61    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”.

62    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.

63    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.

64    The Yugara appellants did not otherwise identify any error warranting appellate intervention by this Court.

65    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]).

66    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).

67    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).

68    The significant steps concerning the application by the Yugara appellants were as follows (see at [241]-[254] below):

69    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.

70    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.

71    In these circumstances, the Yugara appellants do not establish any error by the Judge.

(c)    The redacted report of Dr Fisher

72    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.

73    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)

74    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.

75    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)

76    In short, this ground of appeal is not made out.

(d) and (e)    Refusal to admit evidence of Robert Mitchell and Myfanwy Locke

77    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.

78    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.

79    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.

80    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”.

81    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.

82    Accordingly, the Judge did not permit the Yugara to adduce evidence from Mr Mitchell and Ms Locke.

83    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.

84    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.

85    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.

86    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.

87    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?

88    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.

89    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”.

90    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.

91    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).

92    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.

93    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.

94    At [26], the Judge noted that Dr Margaret Sharpe and Dr Sylvia Haworth, linguists, were also called by the Yugara.

95    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].

96    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.

97    The Judge noted, at [37], that what Watson referred to as “the Taraubul group of the Yugarabul tribe” was a reference to the Turrbal people on whose behalf Ms Barambah made her application.

98    The Judge, then, in his reasons at [38] and following, made reference to Petrie.

99    At [41], the Judge noted that the evidence of both linguists was to the effect that the same language was spoken over the whole of the claim area, and much to the south as well. He further noted, after reference to their evidence, that the linguists were prepared to accept that there were different dialects in different parts of the broad area over which the language was spoken, although they rejected the notion that the language as such differed in any part from that spoken in any other part.

100    The Judge then accepted, at [43], on the basis of the evidence just referred to, that he would accept that a single language, albeit probably involving different dialects, was spoken over a region much more extensive than the claim area.

101    Then he observed, at [44], that from the very high level indications of identity provided by a common language, it was necessary to move to a consideration of the “interacting groups” or “territorial groups” referred to by the anthropologists in their evidence.

102    The Judge proceeded to discuss how Petrie had used the term “tribe”: one sense being to refer to the overall group of peoples who “inhabited the area to which he [Petrie] gave approximate definition”, and the other to refer to smaller groupings, for example “some to North Pine, some to Brisbane, and so on”. He noted that the distinction between the different senses of this term was an important one in the case, and he explained why at [45].

103    At [46], the Judge referred to Steele’s book, published in 1983, in which Steele accepted Petrie’s statement of the scope of the Turrbal area and identified five “clans” within that area (while at the same time acknowledging that other clans “no doubt inhabited the area”). The five clans identified were:

    the “Duke of York’s” clan, occupying the Brisbane metropolitan area on the north side of the river;

    the North Pine or Petrie clan;

    the Coorpooroo clan on the south bank of the Brisbane River;

    the Chepara clan of Eight Mile Plains; and

    the Yerongpan clan of Oxley Creek.

104    The Judge reproduced Steele’s map in his reasons for judgment, showing the locations of the five clans referred to.

105    Commencing at [47], he then engaged in a discussion of these clans. This included a discussion of the Chepara clan.

106    At [55], the Judge said:

There is nothing else in the evidence to suggest that the Chepara clan extended as far north as Caboolture River, but it is possible that the distinction between a clan as such and a “head clan”, or “tribe”, might be relevant to that question. What is of interest for present purposes, however, is the circumstance, which appears tolerably clearly from all of the evidence, that, at least as an approximation, the area south of the Brisbane River was distinct from the area to the north under the Duke of York.

107    The Judge then discussed, at [56] and following, a number of individuals and clans in the context of their territory. He mentioned Mulroben, who Dr Powell said had a “huge area” also extending to the west as far as Ipswich. Based on Dr Powell’s evidence he said “it seems tolerably clear that Mulroben’s clan was that described by Steele as for the Coorpooroo Clan”.

108    The Judge also referred to the “Yerongpan” clan. At [58], he said that however indicative and approximate Steele’s map may be, it was difficult to advance any interpretation of it that would have Eight Mile Plains and Yeerongpilly in the territory of the Yerongpan clan.

109    At [59], the Judge said that making allowances for the difficulties faced by the parties in establishing the nature and placement of the “tribal divisions”, which inferentially characterised the claim area at and after sovereignty, he considered the following findings might be made on the probabilities. In doing so, he said he used the word “clan” as the relevant descriptor, not only because Steele did so, but also because Ms Isaacs herself used the word. He then found:

The five clans identified by Steele were distinct from each other. The geographic lines of demarcation between them were not precise and, especially further south, cannot be known even to an approximation at this substantial remove in point of time, but distinct clans there were. The fairly extensive historical references to the “leaders” of at least three of these clans — North Pine, Duke of York and Coorpooroo — is consistent with no other conclusion. There were, I would find, the “interacting groups” to which Dr Williams referred in the passage set out at para 29 above, or the “territorial groups” under “headmen” referred to there by Dr Powell and Dr Macdonald.

110    The Judge, after saying at [60] that it was uncontroversial that the clan regions would have shared the same laws and customs, stated at [61] that the “critical issues in the case” were, first, what was the nature of the connection with particular land that would give rise to rights and interests in it, and secondly, by what principle, rule or custom would such rights and interests be possessed by people coming later in time who may not have been part of the original community when it was in direct occupation of the lands in the traditional way. In other words, who originally possessed these rights and interests, and who were their successors in future generations?

111    In response to a written submission made by the State at trial in closing, that the rights in relation to land were not conferred generally across the whole of the language territory but, rather, differential rights were held amongst local groups and within local groups, the Judge, at [62], said he could not see that the issue was either clearly presented or clearly resolved at the pages identified by the State in Dr Macdonald’s report of June 2010. However, he considered, at [63], that what Dr Macdonald said in her report of September 2009 was more to the point, namely:

More directly on point was Dr Macdonald’s report of September 2009, which was concerned principally with the boundaries of Turrbal-speaking territory. Although presenting her analysis in the framework of her conclusion that the Turrbal-speaking people were part of a “Riverine cultural bloc” (which was not accepted by the other anthropologists), Dr Macdonald dealt in some detail with the attributes of what she called “local territories”. Such a territory was recognisable as being under the control of a “headman”. Dr Macdonald said:

There is a consistent picture in the literature of each local group having a clearly bounded territory within which economic activities were pursued and others had to ask permission to enter and, if staying, would be told where they could hunt. This territory is understood economically and politically, as a hunting and gathering territory over which particular people had rights. Within it are an individual’s sites.

And:

The headman had the right to exclude people, although would rarely do so. However, it was imperative that he be asked permission to enter, camp, forage or even pass through. It was this respectful recognition that affirmed his authority.

If a small company sought and obtained permission to travel through another tribal territory, they must of course not hunt for food while so passing through, and as evidence of their bona-fide that (sic) must keep very strictly in a straight line behind each other. Such a party would consist of only six, possibly ten, men (Langevad 1982:29).

Of course, such a group could also ask for permission to hunt. But not to ask a headman for permission was tantamount to a denial of his rights over the territory (cf. Myers 1982). Someone disregarding such fundamental etiquette did so at their own risk as it would be assumed they had dangerous intentions. Trespassers could be put to death in some cases and in all cases a fight would result. These local dialect areas therefore corresponded with economic and political rights. Only those identified as having primary rights (senior owners/custodians) had the right to extend usufractory rights to visitors. There would be people identified with other territories, such as spouses and in-laws, who were resident and had the daily rights of residents, but did not have the right to grant permissions. They too had to defer to those with the right to call themselves by the name of that territory.

Dr Macdonald was not challenged on these views.

112    As to what Dr Powell had to say on this subject, the Judge, at [64], said this:

On this subject, Dr Powell said:

[I]t is my understanding that each territorial group indeed did have a headman who handled matters within the area of each group. But there was an overarching organisation connected with the religious system, and the list [sic] was paramount … over all the groups … [Y]ou could become like a local group, a territorial group headman, and then according to what I’ve read, you’ve got other men to help you and you formed a council of senior men who handled matters within the territory your group was associated with. But on top of that uniting all these different territories there was what was called the bora — in the literature the bora council, and they could — if one of these headmen wasn’t up to scratch, so to speak, they could have him removed.

However, with respect to the rights of people who were associated with a particular local territory to enter upon, and to exploit, land within another local territory, Dr Powell was more guarded:

I don’t have the information to say that … I really don’t know. Moreover, Petrie does say that all these groups were linked to each other through intermarriages, so that — and that people quite happily moved from one area to another and were—were friends and hunted and gathered and did things together. So … I would hesitate to say that somebody who we might think is with the Chepara in that area had no rights and interests, say, up at the North Pine which was the Duke of York’s. We don’t — I don’t know.

113    Then, at [65], the Judge had regard to Petrie.

114    Ultimately, at [66], he made a finding, on the probabilities, that rights and interests in relation to land and waters were possessed by reference to membership of each local group, under the leadership of a particular head man, or what Steele would call a “clan”. His Honour added this:

Dr Macdonald was clear in her evidence that such rights and interests were not enjoyed more widely. Dr Williams, as I read her evidence, was substantially of the same opinion. Dr Powell was able to put it no higher than that she did not know. In concrete terms, this means, for example, that rights and interests in relation to land and waters immediately to the north of the lower Brisbane River were possessed by members of the Duke of York’s clan, that rights and interests in relation to land and waters to the south of the river were possessed by members of the Coorpooroo clan, and so on. Interestingly, this perspective has the strong support of evidence given by Ms Isaacs herself. In a statement attached to her affidavit of 20 January 2006, she said that, within the various tribes that existed years ago, there were “particular clanlands”. Special permission had to be sought from the relevant clan and tribal authorities to enter into their territories. She continued: “Clan rights of clan areas are stronger than the tribes”. Expressed in the lexicon of native title, what Ms Isaacs was here saying, in my reading of it, was that rights and interests in relation to land and waters were specific to the members of the clan which occupied, or had the relevant connection with, that land and those waters.

115    As to the second question about the “intergenerational rule of succession to rights and interests in land” the Judge, at [68] and following, discussed the question of filiation and ultimately concluded, at [70], that:

In the life of an existing, vibrant, aboriginal tribe or community, it may have been sufficient, for an interest in land to arise, for that interest to have been held by one’s parent. It may not, in Dr Macdonald’s words, have been necessary “to test the application of the law of filiation over time”. But this is a court proceeding held many decades after the disappearance of such tribes and communities in the claim area — a matter dealt with in the next section of these reasons. To know whether, over that period, the rule of filiation has been at work transferring rights and interests in land and water from one generation to the next, it will be necessary, as it seems to me, to look at what Dr Macdonald refers to as descent. This was the unambiguous premise by reference to which both applicant groups conducted their cases.

116    An appreciation of exactly what the Judge said and found, and his basis for doing so, concerning the possession of rights and interests as at sovereignty by local groups or “clans” is plainly important, as a number of the relevant grounds of appeal considered in this part of the appeal challenge these findings.

117    The Judge then went on to deal with the question of “Continuity of society” referring, amongst other materials, to the redacted report of Dr Fisher, as well as the opinions of the anthropologists. After first dealing with the question of Turrbal continuity, the Judge turned to the Yugara case on continuity at [132] and following. As to the former, we note that the Yugara appellants have raised challenges about the Judge’s treatment of some of that evidence (see at [25(4)-(8)] above). That evidence is reviewed in our consideration of the Turrbal appeal below (see at [192] and following).

118    The Judge commenced by observing, at [132], that Dr Powell, in response to a question from Dr Williams in a concurrent evidence session with the anthropologists, said that she had not carried out any research on this question and offered no opinion on it. His Honour added, however, that within the Yugara group some gave evidence from which he understood they would want it to be inferred that the Aboriginal society which existed at first white settlement in the Morton Bay area had continuity in the Yorta Yorta sense down to the present time. His Honour considered that evidence.

119    From [133] on, the Judge gave close consideration to the evidence of Mr Des and Ms Pearl Sandy and the Sandy family, and the evidence of Ms Ruth James and her family, as well as other Yugara witnesses.

120    The Judge also made reference, at [152] and [153], to broader cultural evidence.

121    In all, the Judge was not satisfied that the Yugara society to which all these witnesses made reference and which existed at sovereignty, had a continued existence in the present day.

122    At [153], he specifically found:

In point of content, the matters to which I have referred above do not bespeak the existence of a normative system of laws and customs. Further, and crucially, the evidence does not cover anything more than a fraction of the period with which the court must be concerned: even to go back to the grandparents of the oldest of the Yugara applicants, there remains the better part of a century with respect to which the court does not have any relevant evidence.

123    At [154], he added:

As will become apparent, what is most striking is that, for the most if not the whole part, the evidence related not to the claim area at all but to areas to the south and south-west of the lower Logan, and around Beaudesert. Although it was the Yugara case that the area in which they hold native title extends as far north as the Pine, at the point of bringing forward concrete evidence from which, even arguably, continuity might be inferred, everything occurred at, or to the south of, the Logan/Beaudesert area. That in itself would not be fatal to the Yugara case, but it provides a ground for the court not to say anything more on the subject than is necessary to decide that case, concerned as it is with the claim area. In particular, I would not want to say anything that might later be used to compromise any claim to other parts of south-east Queensland that the Yugara people, or others, may wish to make.

124    The Judge thus concluded, at [155], that the Yugara case on the continuity aspect must be rejected.

125    After dealing with the Yugara continuity case at [156]-[254], the Judge then turned to the Yugara ancestry case at [255] and following. He dealt with the ancestry of Des and Pearl Sandy in some detail.

126    At [259], he dealt with the claim of the Yugara that one John Logan was known as “Jackey Jackey”, as “King Jackey, as “Bilinba”, and as “Bilin Bilin”. He chose to refer to him simply as “Jackey Jackey”. He considered the relevant evidence of that association in some detail.

127    The Judge had regard to a range of information, including an item by Hinchcliffe FW in The Beaudesert Times from 1931, and much other correspondence and newspaper pieces, as well as the opinion of Dr Powell and the evidence of the Sandy family on this question.

128    At [274], he found that Jackey Jackey was confined in his domain, his life and his travels to areas to the south of Brisbane, and he proceeded by “reference to [that] limitation”.

129    At [275] and following, the Judge proceeded to discuss uncertainty about Jackey Jackey concerning the extent of his relationship with the Christmas Creek area and the relevance of his presence, occasional though it may have been, in Brisbane.

130    He regarded Jackey Jackey’s choice of burial place. He also had regard to Jackey Jackey’s presence in Brisbane. He discussed the Hinchcliffe material and other evidence.

131    At [279], the Judge said that, as against weak indications, “we have the strong evidence that it was with the area around the Logan, particularly the lower Logan, that Jackey Jackey was associated in a way that would now be recognisable as relevant to a claim for native title”.

132    Ultimately, at [280], he found that Jackey Jackey was an ancestor of Des and Pearl Sandy, but he was not satisfied that that circumstance made any contribution to the Yugara claim to native title in respect of the claim area.

133    In particular, he ultimately concluded, by reference to other evidence too, that the evidence disclosed no kind of ancestral or other relevant connection between “King Sandy” and the Yugara applicants.

134    At [281]-[306], his Honour systematically dealt with questions concerning the connection that other named people, including Alexander Sandy and his partner, Mary Ann, and Lizzie had with the claim area, or the Sandy family.

135    His Honour was not satisfied that Lizzie, the great great grandmother of Valentine Brown, was born a Sandy. He found, at [307], there was no evidence of any living descendant of this Lizzie, the mother of Mrs Prince’s first husband, Frank.

136    He also considered the Yugara ancestry of Danny Doyle. He noted the asserted link between Kitty and Mr Doyle’s ancestors. At [314], he said he could not be satisfied that the Kitty referred to in a property owner’s letter was the mother of Molly Myers, Mr Doyle’s great great grandmother. More importantly, he said there was no evidence that she lived in or had any association with the claim area.

137    As a result, at [315], the Judge rejected the Yugara case that the members of the group were descended from people who had any relevant rights or interests in land or waters in the claim area at sovereignty, but he acknowledged his reasons for doing so were “less straightforward than in the case of the Turrbal claim”. To summarise, the Judge stated:

(i)     Des and Pearl Sandy are descended from this man, but neither he nor any of the others mentioned in parenthesis had any relevant rights or interests in land or waters in the claim area;

(ii)     no member of the Yugara claim group is descended from this man or his wife;

(iii)     Mrs James is descended from this couple, but they had no relevant rights or interests in land or waters in the claim area;

(iv)    Des and Pearl Sandy are descended from this couple, but they had no relevant rights or interests in land or waters in the claim area;

(v)     no member of the Yugara claim group is descended from this woman or her husband, and they had no relevant rights or interests in land or waters in the claim area;

(vi)     Valentine Brown is descended from this woman, but neither she nor her son had any relevant rights or interests in land or waters in the claim area;

(vii)     Danny Doyle is descended from the couple referred to in parenthesis, but it is not established that Molly was the daughter of Kitty, and neither of them had any relevant rights or interests in land or waters in the claim area.

138    It is against this background, analysis and these findings that the grounds of appeal now pressed by the Yugara appellants are to be understood. What now follows are the Yugara appellant’s submissions about errors of law and fact that they say the Judge made.

139    In relation to the issues arising under their “appeal point 2” (see [24(2)] above – the s 223 requirements), the Yugara appellants now contend that the Judge’s finding that there was no basis in the evidence to find a normative system of laws and customs which inferentially existed at sovereignty and continued substantially uninterrupted to the present time was wrong on the facts. They contend that the Judge required all of their apical ancestors to be present in the claim area at sovereignty and that they were required to prove that they were descended from members of tribal groups who inhabited the claim area at sovereignty.

140    In that regard, they say the Judge incorrectly emphasised habitation and presence in the claim area, and this was an error that infected the entirety of the Judge’s approach to their claim.

141    The Yugara appellants say that their evidence was that they were descended from ancestors who were members of the pre-sovereignty landholding group for the claim area and that the claim area was associated with a language group that was part of a regional society. They say the language associated with the claim area was Yagarabal, and the Brisbane region had that language. They say the Brisbane River catchment area was the area generally associated with the Yugara/YUgarapul language and variances of the name of that language include Turrbal, Yuggera, Jagera, Ugarapul and Yugarabul. They say the coastal group was distinguished as the Yugara/YUgarapul people.

142    They say the language group comprised subgroups and that the only Yugara speaking “tribe” in the claim area at sovereignty was the Chepara. That group included within it a group referred to as the “Logan Blacks”, or the Yerongpan, whose country extended from Ipswich to Brisbane, and from Beaudesert to Pimpana and Moreton Bay. They say the Chepara area extended to the north of the Brisbane River and that Howitt incorrectly referred to it as overlapping the Turrbal, rather than as a difference in naming practice for the same coastal group. They repeat that the name Turrbal was another name for the Yugara/Yugarabul language group.

143    Noting that the Judge had stated it was Dr Sharpe’s view that FJ Watson’s explanation of the origin of the name of the Taraubul group related in some way to the geology of the Brisbane area, the Yugara appellants say that the Judge failed to refer to Dr Sharpe’s evidence that a plausible explanation was that the name originated from the Nundah Aboriginals when they guided German missionaries to Ningi Ningi in 1841, and failed to refer to the 1841 report regarding the King of Toorbal as the headman of a group known as the Ningy Ningy people opposite Bribie Island. They say Dr Haworth’s evidence was that there were no other instances of the word for “stone” being accorded with the region.

144    The Yugara appellants further contend that they identify as Yugara/Yugarapul on the basis of descent from ancestors who were members of the pre-sovereignty landholding group for the claim area and that this gave them a basis to assert “core rights” across the claim area. They say there was an “overarching organisation” connected with the Yugara religious system, and rights and interests were allocated generally across the whole of the claim area. They contend the Judge placed no weight on their evidence to this effect.

145    Instead, they assert, the Judge incorrectly required the Yugara appellants to establish that members of the claim group had rights and interests in the claim area as part of a local territorial group. They contend the attachment of small groups to parts of the claim area was irrelevant to proof of their claim to native title and that this error infected the Judge’s analysis of the evidence.

146    Additionally, they say that in that respect, the Judge erred also by 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. They say the only specialist language experts to give evidence on their behalf were Dr Sharpe and Dr Haworth and their evidence contradicted the Judge’s findings. There was no evidence of dialects that differentiated groups in the claim area. The people north of the Brisbane River spoke the same dialect as those in the south. Additionally, Dr Williams, the anthropologist called by the State, accepted the languages referred to as Turrbal and Yugara were the same with no dialectical difference. At sovereignty, they say, one group known as Chepara covered the entirety of the claim area. Whether there were dialects within the Yugara language group at sovereignty was therefore irrelevant to understanding the landholding group within the claim area.

147    The Yugara appellants contend the same error infected the Judge’s reliance on Petrie in recognising the existence of smaller groupings and placing significance on them as centres of identity in relation to rights and interests in land. They say that the Judge misconstrued Dr Williams’ evidence regarding the network of interacting groups at sovereignty, in that she was referring to interacting groups at a language level, being antecedents to the contemporary regional society composed of the Wakka Wakka, Gabbi Gabbi and Yagarapul groups.

148    They also say that this error was conflated by the placement of unjustifiable reliance on the map at Figure 55 in Steele. Thus, they dispute the Judge’s finding that rights and interests in land were possessed by each local group as indicated on that map, which put the Yugara appellants to proof as to the existence from sovereignty to the present of three Aboriginal groups within the claim area to the south of the Brisbane River, which was contrary to the accepted evidence. They say none of the anthropologists accepted Steele’s map as an accurate representation of the limits of the regions of clans.

149    The Yugara appellants also say the Judge ignored the contrary evidence of the extent of the territorial location of the relevant Aboriginal group to the south of the Brisbane River. They add that Steele provided no justification with respect to the placement of the Chepara at Eight Mile Plains.

150    Ultimately, the Yugara appellants submit that the Judge had a preoccupation with the presence in the claim area of the ancestors of the Yugara appellants and this “infused his analysis” of the Yugara appellants’ evidence of continuity. The error, they say, was that the Judge placed too much weight on evidence of a lack of Aboriginal presence in Brisbane as a factor going to the existence and vitality of a society in the claim area, and he ignored expert evidence regarding the vitality of camps and places and the evidence regarding associations with Mount Pleasant near Mott Creek, Newmarket, Sandgate, Kobble Creek, Moorooka, Rocklea, Victoria Park, Acacia Ridge, Coopers Plains, and Mount Gravatt Cemetery.

151    They also complain that he erred in placing 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.

152    Additionally, they say the Judge disregarded the entirety of their evidence that their ancestors moved away from the Brisbane region as part of a committed resistance to white settlement, as part of an intentional escape from slaughter at the hands of settlers, and then later to limit the application to them of the Aborigines Protection and Restriction of the Sale of Opium Act 1897 (Qld).

153    They also contend that the Judge erred in fact in finding that Aboriginal tribes occupying the claim area had been displaced by the end of the 1850s. In particular, they contend that the Judge relied on aspects of the evidence of Dr Williams, when he should not have done so.

154    In relation to the Judge’s statement that Dr Powell did not offer an opinion, as she had not carried out research on the question, in response to an opinion of Dr Williams, the Yugara appellants state that that is incorrect and that, in the joint expert report, Dr Powell summarised her opinion as being that:

    the Yugara appellants had maintained their connection to their country;

    the historical evidence proved generational physical connection to country and physical and spiritual connection of claimants and forebears in relation to the claim area;

    the Yugara appellants continued to use their country; and

    the Yugara appellants’ witness statements and affidavits demonstrated they had a history of continuous connection to the claim area.

155    The Yugara appellants also contend that the Judge failed to consider evidence concerning avoidance places, boundaries, connection to country, dance and song, dreaming stories and a range of other cultural issues.

156    They say, additionally, that the Judge erred in 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. They contend that this fundamentally misconceived the process the Court has taken to identifying particular facets of laws and customs for the purposes of describing societies at the time of sovereignty and presently for the purposes of native title, referring to Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia (2015) 325 ALR 213; [2015] FCA 9 and CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204.

157    Further, they contend that the Judge erred in finding that the ancestor referred to as “Bilinba/Jackey …” did not make any contribution to their claim to native title in respect of the claim area.

158    In relation to the issues arising under their “appeal point 3” (see [24(3)] above – the ancestry question), the Yugara appellants contend that the Judge erred in fact in finding that the ancestor referred to as Bilinba/Jackey was confined in his life and travels to the south of Brisbane, that 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.

159    In considering the s 223 requirements (“appeal point 2”) issues, it has been necessary for us to set out above in some detail the background and the observations and findings of the Judge in order to understand and evaluate the grounds of appeal and submissions made on behalf of the Yugara appellants.

160    What becomes readily apparent from this is that whatever the ancestry case for the Yugara was – the ancestry question (“appeal point 3”) – the Yugara appellants were unable at trial, on the evidence presented, to establish the continuity of laws and customs, under which the asserted rights and interests were said to be possessed, for many years in the past.

161    The ultimate findings of the Judge on the s 223 requirements issues are at [316] of Sandy No 2, where his Honour stated the particular answers to the questions put to him, in the following terms:

For the reasons given above, the cases — both Yugara and Turrbal — that members of the claim groups possess communal, group or individual rights and interests in relation to any land or water in the claim area must be rejected. In short, that is because there has not been a continued, substantially uninterrupted, normative system under which the traditional laws and customs which would sustain those rights and interests were acknowledged and observed, and because no member of either claim group would, under those laws and customs as they existed at sovereignty and immediately thereafter, be recognised as possessed of those rights and interests.

162    So far as the ancestry case of the Yugara addressed in “appeal point 3” and “appeal ground 4” is concerned, we consider that the recitation of the Judge’s detailed analysis of the evidence that we have given above emphasises that he gave close and anxious consideration not only to a great deal of historical material said by the appellants to make out their ancestry case, but also to the oral evidence of witnesses called by the Yugara applicants.

163    In relation to appeal points 2, 3 and 4 the numerous matters (see at [25] above) now relied upon to suggest that the Judge made errors in fact finding fail to recognise that he was obliged to make findings of fact, ultimately on the basis of probabilities, where various conclusions were arguable having regard to the nature of the historical evidence and oral evidence. Those arrived at by the Judge are not shown to have been made in error.

164    To the extent that appeal points 2, 3 and 4 are framed as errors because the Judge failed to give sufficient weight to evidence called by the Yugara appellants (see at [25] above), the question of what weight should be given to the evidence was for the Judge to consider. Given the range of historical materials and oral evidence put before him, the task of sifting and weighing the evidence was one peculiarly for the Judge. He heard the evidence, the analysis provided by the anthropologists and the evidence of the Yugara witnesses. His immersion in the great detail of the factual evidence enabled him to make findings, albeit on the balance of probabilities, of the ancestral facts. No error is demonstrated by the Yugara appellants in relation to the fact finding of the Judge. His findings were open to him.

165    In many respects, as the State submits, the attempt on the appeal to raise these factual issues amounts to an impermissible attempt to re-run the trial that failed before the Judge.

166    As to the more substantive questions about the approach the Judge took to the question of proof of native title, and whether or not he required proof of physical habitation and presence in the claim area of ancestors of the claimants at sovereignty, we are not satisfied that the Judge made the errors asserted. He made findings that there were local groups or “clans”, based on the evidence before him. He found it was the members of those groups or clans who were possessed of rights and interests at sovereignty; not persons who were members of related “interactive groups” of regional groups. His findings had regard to the various expressions of anthropological opinion by the expert witnesses called by the parties. We are not satisfied the Judge misconstrued or misunderstood that opinion.

167    In every application for determination of native title, the question of how rights and interests were and are possessed under traditional laws and customs of claimants is one for the evidence. In this case, the Court concluded that rights and interests of a traditional kind, as discussed in Yorta Yorta, were gained through membership of a local group or clan.

168    We do not understand the Judge to have doubted in any material respect that such rights and interests could be enjoyed by a member of the relevant local group without the member being physically located on land. It is clear from a fair reading of the Judge’s reasons that he understood that, by virtue of occupation, more generally understood, members of a local group or clan derived rights and interests of a traditional kind in relation to land and waters. We do not understand him to have concluded that such native title could only be recognised if the current applicants could prove that their ancestors were in physical occupation of the land at sovereignty.

169    We do not doubt, depending on the evidence led and accepted in a native title claimant application, that members of a regional group of indigenous people comprising a number of local groups or clans might be shown to hold a range of rights and interests in relation to local areas within the larger regional group’s area, but in this case, in making a finding to the contrary, the Judge had the benefit of extensive historical materials, as well as the opinions of the experienced anthropologists called by the parties as to the inferences to be drawn from all of the materials before the Court when he responded to this important question. In the circumstances, the Judge’s assessment and findings in relation to that evidence are not shown to have been in error.

170    In any event, even if it could successfully be argued that the evidence was capable of supporting a different conclusion, to the effect that a larger group of persons than the members of a local group or “clan” at sovereignty together with members of local groups or clans were possessed of all the traditional rights and interests in relation to land and waters in the claim area, the Judge’s findings as to the lack of continuity were so obviously open on the facts of this case, that the conclusion he reached on that critical issue cannot be doubted.

171    For these reasons, the appeal on this Yugara continuity of connection question in grounds 2, 3 and 4 of the FANA must be dismissed.

4.    Did the Judge err in finding the Turrbal appellants had failed to prove continuity of connection to the claim area?

172    The grounds of appeal of the Turrbal appellants, set out above at [26], focus on the question of continuity of connection, claiming that in determining whether connection by traditional law and custom has been made, the Judge should have made an allowance for the “statutory protection and preservation policies of the State of Queensland”.

173    The grounds of appeal are preceded by references to [175] and [254] of the Judge’s reasons.

174    Paragraph [175] concerns Billy Isaacs.

175    Paragraph [254] is a conclusionary paragraph in which the Judge rejected the Turrbal case of biological descent from the Duke of York.

176    At the hearing of the appeal, the Turrbal appellants sought to rely on fresh evidentiary material comprising some 17 items. These items included historical maps and extracts from various journals, memoirs and newspapers said to concern Billy Isaacs. Reference to these materials on the appeal was not controversial and was allowed.

177    In their written and oral submissions, the Turrbal appellants, by their representative Ms Barambah, contended that the Judge failed to give due weight and regard to the policy of the State to compulsorily remove Aborigines and their associates to reserves from 1897 onwards. They contended that Turrbal members Billy Isaacs and his wife, Bella McLean – parents of the original claimant, Connie Isaacs – were compulsorily removed in the first decade of the 20th century – that is, in the early 1900s.

178    In a chronology and written account of the chronology, the Turrbal appellants say that their story, for the purposes of this case, could be divided into four periods: pre-1778-1860; 1860-1880; 1880-1908; and 1908-2016.

179    The Turrbal appellants say the Judge found there was a “Turrbal society” in the claim area that gave life to traditional laws and customs that connected people to land up until the death of the Duke of York around 1860. They rely on [28]-[51] of Sandy No 2 for this statement.

180    They say that from 1860 onwards, the Judge was concerned with questions of whether those traditional laws and customs had been passed down through generations to the point where they continued to be practised today. They contend that from [156] onwards, the Judge used the notion of “ancestor” to analyse Turrbal succession and continuity through the 1860-1880 period. They submit that in light of the wording of the NTA, the Judge should have used the notion of “predecessor” as the basis for his analysis.

181    They say the period from 1860 to 1880 is significant and the Judge found there was insufficient evidence to prove that traditional laws and customs had been passed down through generations and that they continued to be practised.

182    The Turrbal appellants state that in the 20 year period between the death of the Duke of York in 1860 and the birth of Billy Isaacs in 1880, the Judge found there was insufficient evidence to prove an ancestral relationship between the two men and held that during this period there was also insufficient evidence to prove continuity of traditional laws and customs in the face of an increasing urbanisation of the Brisbane area.

183    They submit that the compulsory removal of Billy Isaacs and his wife, Bella McLean, from the claim area under the Aborigines Protection and Restriction of the Sale of Opium Act 1897 (Qld) in the early 1900s, along with the evidence of their daughter, Connie Isaacs, who was born in 1920 and died in 2013, proves that Billy Isaacs and Bella McLean had received the Turrbal traditional laws and customs from earlier generations and continued to practice them. They contend that Connie Isaacs, when she died at the age of 93, was able to connect those earlier generations with today.

184    The Turrbal appellants contend that the question of continuity is “more nuanced” than the Judge appreciated and that in fact and law there is continuity of the Turrbal laws and customs up until this day, with the result that the Judge erred in finding as he did. They acknowledge, however, that for the purposes of the appeal, what they call compulsory removal is a critical event. In their submission, they say it provides a basis for establishing links from Billy Isaacs and Bella McLean back to predecessors such as the Duke of York; proving continuation of the society and traditional laws of the Turrbal at Cherbourg and in Brisbane over the last 112 years; and questioning the conduct of the State in denying the succession and continuity of the Turrbal and their laws and customs from 1860 to the present day.

185    The Turrbal appellants present a number of arguments including:

    That the Judge erred by applying the reasoning of Yorta Yorta because that reasoning did not concern compulsory removal. They say Yorta Yorta was a case where there was a voluntary discontinuation of occupation of the land in accordance with traditional laws and customs. By contrast, the Turrbal appellants never ceased to occupy their lands in accordance with their traditional laws and customs. They were compulsorily removed in a physical sense by the State. It is submitted that they never discontinued or surrendered their spiritual occupation of, or connection to, the land.

    They say the Judge erred in finding otherwise.

    They advance a second argument that the Judge erred in applying an overly narrow approach to the notion of “descent” in finding there was no passing down or continuity of traditional laws and customs through generations from 1860 to 1908, especially in light of the NTA and compulsory removal.

    The Turrbal appellants submit that the Judge was wrong to require strict biological descent.

186    In concluding their submissions, the Turrbal appellants say they believe that:

    they are successors to the Duke of York and that he is their predecessor;

    they have continued from pre-1878 until the current day as a society connected to the claim area, practising traditional laws and customs, and that contrary to the view of the Judge, there was a Turrbal language which is separate and distinct from the Yugara language;

    George Brown was their predecessor and his place in history is not trivial;

    they already satisfy the requirements of s 223 of the NTA, pursuant to other Commonwealth legal instruments; and

    their native title claim is not frivolous.

187    The Judge in respect of both the Turrbal claim (and the Yugara claim) noted, at [15] of his reasoning, that each of the applicant groups claimed 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.

188    At [15], the Judge, after some discussion, noted that to be descended from a local tribe whose members did not hold traditional interests in land and waters would not be sufficient, even if there were, for example, a common language or acknowledgement of the same body of laws or the observance of the same body of customs. His Honour concluded in that paragraph by saying that, in practical terms, this means that the applicant groups in the present case must establish that they are descended from the members of tribal groups which inhabited the claim area, or parts of it. We have set out at [90] of these reasons, [15] of Sandy No 2 and following in relation to the Yugara appellants’ appeal.

189    There is little doubt that the Turrbal appellants were claiming at trial that they, as they define themselves, and they alone, were the relevant native title holding group both at sovereignty and today in the claim area. As the Judge pointed out, at [16], that group was defined as:

Connie Isaacs and her biological descendants, being the only known descendants of the Turrbal man known as the ‘Duke of York’, and the only named descendants of those people who comprise the Turrbal People as at 7 February 1788.

190    Ultimately, the Judge, at [18]-[27] of the primary judgment, analysed the evidence that Ms Barambah called on behalf of the Turrbal and concluded that the case they asserted could not be made out.

191    The Judge, at [20] and following, dealt with the evidence of Dr Macdonald who considered the circumstances of the claim, as well as the evidence of Dr Williams and Dr Powell, as well as that of the two linguists called by the Yugara, Dr  Sharpe, and Dr Haworth.

192    The Judge, at [28]-[71] of the primary judgment, analysed that evidence, much of it being of an historical nature, including records of early settlers and persons interested in the ethnography of the area at settlement and early colonial times as set out above, and in the course of doing so discussed, at [72] and following, the basis upon which people acquired traditional rights under laws and customs. He then considered the question of “continuity of society” at [72]-[155] of the primary judgment.

193    Of some considerable relevance, at [81], the Judge made the following observations and findings:

Finally in this part of her evidence, Dr Macdonald pointed to the existence of aborigines, including, possibly, direct descendants of the Duke of York’s clan, in parts of the claim area other than central Brisbane, such as Enoggera Creek. This, however, was not the subject of anything more than isolated references in the evidence. Neither applicant group undertook any 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. That is not to say, of course, that there did not continue to be places, within the claim area, where aboriginals were observed to be living in what appeared to be traditional ways. But the evidence of this is unsystematic and fragmentary. Dr Fisher said:

The historical evidence also shows me that the [redacted] people were not only divided originally into small groups but also driven increasingly from their traditional territory by whites and blacks alike from the 1850s onwards; drink, disease and death as well as dispossession caused their numbers to plummet within the increasingly settled claim area.

Despite continual statements from the 1860s onwards that the [redacted] people were practically extinct, my opinion based on other sources is that remnants were increasingly scattered within and beyond the bounds of settlement where they melted into the countryside and were later removed to institutions including homes, missions and reserves.

This is not, in my view, a picture from which the continued acknowledgement and observance, without substantial interruption, of a body of laws and customs could be inferred.

194    The Judge added, at [82], that that brought him to the conclusion that:

… lower level issues of how the people from whom Ms Barambah herself claims to be descended continued to acknowledge the laws, and to observe the customs, that characterised society in the claim area at sovereignty, and of whether the facts in relevant respects disclose the continuation of a society defined by reference to those laws and customs in the Yorta Yorta sense.

195    He noted, at [83] and following, that the Turrbal case involved the proposition that after the original inhabitants had been displaced from their lands, they migrated inland and northwards, while maintaining tribal cohesiveness and continuing to acknowledge and observe their traditional laws and customs.

196    However, at [84], the Judge said that even allowing for a degree of generosity in recognition of the difficulties associated with proving events which occurred long before the lifetime of any witness, and in relation to which even anthropologists and historians need to proceed by way of inference, “the factual basis of the Turrbal case as outlined above does not, in important respects, rise above surmise”.

197    As to Dr Fisher’s report, the Judge considered that it was “insubstantial”, although he allowed for the possibility that an unredacted version might be more convincing. But he observed that the primary materials Dr Fisher had referred to had, for the most part, been put before the Court in support of the Turrbal ancestry case. He said that the report begged a number of important questions as to the links between the original inhabitants of the Brisbane area and those who, in the late 19th century, were working on stations in the Mary Valley.

198    The Judge then, at [85]-[92], followed through the ancestral claims including by reference to the historical materials adduced in evidence. In particular, at [93]-[119], he noted Ms Isaacs’ history and the circumstances surrounding her traditional upbringing. He referred to her affidavit, at [107].

199    The Judge also considered the evidence of Mr Arthur Isaacs, Ms Isaacs’ son, and Ms Barambah’s half-brother, at [110]-[119], and of Ms Barambah herself, at [120]-[126].

200    At [127], the Judge said that considering the evidence of Ms Isaacs, Mr Isaacs and Ms Barambah, he should make it clear that it was no part of the case put by Ms Barambah to establish the continuous existence of the relevant society through the lives and doings of the Gubbi Gubbi people.

201    At [128], the Judge rejected any proposition that the Turrbal appellants’ connection with the claim area was rooted in normative laws and customs, and rejected too the proposition that they constituted a society in their own right. He added, at [128]:

Because of the indigenous community in which Ms Isaacs’ (sic) was brought up at Cherbourg, the Gubbi Gubbi people would be the most obvious candidates as constituting the core of such a society. But, if they have a continuity case of their own, the present has not been the occasion to make it good.

202    At [131], the Judge concluded that, taking all the evidence into account, he was not satisfied there had been an uninterrupted acknowledgement of traditional laws or observance of traditional customs under which rights and interests in the land and waters of the claim area might arise, since sovereignty, on the part of the Turrbal group and those from whom they claim to be descended. Indeed, he said he would hold to the contrary.

203    That finding effectively disposed of the Turrbal case, even if the ancestry the Turrbal appellants asserted could have been made out.

204    In regard to the ancestry case, however, the Judge proceeded carefully to consider the detail of the descent evidence. He concluded, at [172], that aside from specific genealogical material, it was hard to identify any “firm basis to give credibility to the notion that Ms Isaacs was of Turrbal descent, and, moreover, was descended from the ‘boss of Brisbane’ specifically”. In other words, the proposition that Ms Isaacs was descended from the Duke of York, who was a blood ancestor of hers, was rejected.

205    At [174], the Judge also said there was nothing in the objective record to connect Billy Isaacs with Brisbane or with any part of the claim area. He considered closely the evidence concerning Billy Isaacs at [174] and following.

206    It is clear from the Judge’s analysis of the ancestry case put on behalf of the Turrbal, that he had very close regard to the detail of all the historical documentation, as well as the evidence of Turrbal claimants, in coming to the conclusion that the Turrbal claimants were not descended from the person known as the Duke of York in earlier colonial times.

207    In the course of coming to that conclusion, the Judge also considered the circumstances of Kulkarawa and other historical figures in the first half of the 19th century, and of “Kitty” who was said to have been the daughter of the Duke of York.

208    In the result, it is not possible for us, on this appeal, to accede to the submissions made on behalf of the Turrbal appellants that the Judge erred in any relevant respect in relation to his findings on the ancestry case. Nor can we agree that he erred in respect of the continuity finding he made.

209    As the State observes, the contentions advanced by the Turrbal appellants on the appeal are essentially that their known ancestor Billy Isaacs was a “Brisbane River man” who was compulsorily removed from the determination area in the 1900s; and that the Judge ought to have taken into account that his removal was not voluntary and erred in that regard by requiring continued physical occupation of the claim area in deciding continuity questions for Yorta Yorta and s 223 purposes.

210    We accept the primary submissions of the State that the grounds of appeal in this regard proceed on a false factual premise and do not accurately characterise the findings of the Judge or accurately state the legal principles relevant to the issue of continuity.

211    Billy Isaacs, it is said by the Turrbal appellants, was removed from Brisbane and, therefore, it can be inferred that he and his descendants were from the Brisbane River area, even if not biological descendants of the Duke of York.

212    In evidence, the Duke of York was said to have been a Brisbane River man. Connie Isaacs’ evidence was that Billy Isaacs was also a Brisbane River man.

213    Thus, the Turrbal appellants make the argument that the Duke of York was a “predecessor” of Billy Isaacs, if not a biological ancestor.

214    We accept the State’s submission, however, that there is no challenge by the Turrbal appellants to the Judge’s finding, at [174] of his reasons, that there is nothing in the objective record to identify Billy Isaacs with Brisbane or any part of the claim area. Nor is there any objective record to show that the Duke of York had any descendants beyond Kitty.

215    It is very difficult, in the circumstances, for the Turrbal appellants to challenge the Judge’s relevant ancestry findings. Nor do we think the additional evidentiary materials that they seek to rely upon, including two newspaper articles from the Ipswich Times dated 9 January and 22 April 1889, enable the Judge’s findings to be challenged. We accept the observations made by the State that the subject matter of the newspaper reports is unlikely to pertain to the Billy Isaacs in question, who would have been about nine years old in 1889. Even if they did, they do not support any inference, that can confidently be drawn, that Billy Isaacs had any relevant connection to the Brisbane River area or that he was compulsorily removed from Brisbane. The Judge found there to be some incidental evidence of his physical presence in Brisbane, at [176] of his reasons. These further newspaper reports add little to the question.

216    In short, the Judge’s careful analysis of the descent, both biologically and more generally, of the Turrbal appellants from the Duke of York and people living in the Brisbane River area, at material times, is not shown to be inaccurate. It was open to the Judge to find the ancestry case was not made out.

217    At trial, the Turrbal appellants contended that Billy Isaacs was a biological descendant of the Duke of York. As the Judge found, that was “most unlikely”. In his reasons at [156] and following, he carefully dealt with this issue.

218    On appeal, the Turrbal appellants shifted their case to argue that the Duke of York was a “predecessor” of Billy Isaacs. However, even on this fresh line of argument, there is nothing in the evidence to suggest that the Judge made any error in concluding that Billy Isaacs has not been shown himself to be from the Brisbane River area.

219    In conclusion, the evidence to prove that the Turrbal appellants who claim descent from Billy Isaacs are also descendants of the traditional owners of the claim area at the time of the imposition of British sovereignty in 1858 is lacking, and the Judge is not shown to have been in error in so finding.

220    In these circumstances, the question of the compulsory removal of Billy Isaacs, or any other person identifying as Turrbal does not squarely arise for consideration.

221    In any event, it is clear that Yorta Yorta cannot be distinguished in the manner that the Turrbal appellants submit. As has been pointed out by a Full Court in Bodney v Bennell (2008) 167 FCR 84 at [97]; [2008] FCAFC 63, a substantial interruption of the connection of a people to a claim area by the traditional laws and customs is not to be mitigated by reference to white settlement. The continuity inquiry does not involve consideration of why acknowledgment and observance ceased. As the Full Court there noted, if that were not the case a great many Aboriginal societies would be entitled to claim native title rights even though their current laws and customs are in no meaningful way traditional.

222    The primary inquiry for the purposes of s 223 of the NTA is that claimants show that currently, by traditional laws and customs, they have maintained a connection with their traditional country in a substantially uninterrupted way. The reasons for substantial interruption in that sense are not relevant to the inquiry.

223    The facts of this case, as found by the Judge, are that the Turrbal appellants have not been able to maintain continuity of connection in a relevant sense for a long time. The explanation of forced removal, if it could be established, is not directly relevant to the continuity finding. If claimants can show the maintenance of relevant connection then native title may still be found to exist and forced removal will not be relevant. In this case, however, the Turrbal claimants were not able to prove continuity and the reasons of the Judge do not reveal any error of decision-making in that regard.

224    For these reasons, this Turrbal continuity of connection question ([(27(4)] above) and all of the Turrbal grounds of appeal ([26] above) must be dismissed.

225    We should add that there is also no basis to a submission made on behalf of the Turrbal appellants that the Judge was only concerned with physical connection by law and custom and not connection by other means, for example, of a religious or ceremonial kind. At [79], he actually found that there was no evidence that, despite the physical displacement of the original inhabitants of the claim area, their descendants continued to acknowledge the laws and to observe the customs which gave rise to rights and interests. It is reasonable to conclude, as the State submits, that physical displacement was, on the strength of this finding, accompanied by cessation in the observance of traditional customs.

226    More generally speaking, there is no evidence to show that connection was maintained by other means under traditional law and custom.

227    In short, the case of the Turrbal appellants is not relevantly different from that of the claimants in Risk in which the Full Court concluded that, by reason of dispossession of much of their traditional lands, they were precluded from exercising many of their traditional rights and so, obviously, had great difficulty in showing that their rights and customs were the same as those exercised at sovereignty. As the Full Court there noted at [104]:

It is not that the dispossession and failure to exercise rights has, ipso facto, caused the appellants to have lost their traditional native title, but rather that these things have led to the interruption in their possession of traditional rights and observance of traditional customs.

5.    Did the Judge err in making the separate determination?

228    In grounds 5 and 6 of the FANA, the Yugara appellants challenge the Judge’s separate determination that no native title existed in the claim area: Sandy No 3. The Turrbal appellants have not made a similar challenge in their appeal.

229    In CG v Western Australia (2016) 240 FCR 466; [2016] FCAFC 67 (Badimia FC), it was authoritatively affirmed that the Court had the discretionary power to make a negative determination of native title. Accepting that ruling, the Yugara appellants have sought to challenge the manner in which the Judge exercised his discretion to make the negative determination in this matter. They have also accepted that, to succeed in that challenge, they needed to meet the test propounded in House v The King at 504-505.

230    Before identifying the factors upon which the Yugara appellants relied to make out this challenge, it is important, first, to outline some of the complex procedural history to the Yugara and Turrbal claims, and to the negative determination judgment itself. In that context, it is convenient to begin by noting that the main judgment in this matter provided the answers to two separate questions stated under r 30.01 of the Rules, as follows:

But for any question of extinguishment of native title:

(a)    does native title exist in relation to any and what land and waters of the claim area?

(b)    in relation to that part of the claim area where the answer to (a) above is in the affirmative:

i.    who are the persons, or each group of persons, holding the common or group rights comprising the native title?

ii.    what is the nature and extent of the native title rights and interests?

231    Ultimately, the Judge answered question (a) in the negative and, in those circumstances, decided that question (b) did not arise (see Sandy No 2 at [318]).

232    Having provided those answers, and undoubtedly having regard to r 30.02 of the Rules concerning the disposal of a proceeding after answering a separate question, the Judge invited submissions from the parties on the form of the orders that should be made to determine the whole proceeding (see Sandy No 3 at [1]).

233    Shortly thereafter, the native title representative body (see Part 11 of the NTA) for the region which includes the claim area, Queensland South Native Title Services (QSNTS), applied for, and was granted, leave to make submissions on the appropriate form of those orders (see Sandy No 3 at [2]). We will return to the submissions QSNTS put to the Judge on that issue later in these reasons, but first it is necessary to describe the applications the two native title claimant parties made in response to his Honour’s invitation.

234    First, the Yugara appellants sought, among other things, to “re-open their case for the purpose of leading evidence additional to that upon which they had relied in the proceeding to date”. In rejecting this application, the Judge observed (Sandy No 3 at [4]):

The proceeding to date has involved a final hearing on the merits, in which the Yugara applicants had, and exercised, the full participation rights of any party. There is nothing before the court that would justify taking the exceptional –– and, it must be said, remarkable –– step of allowing them to re-open their case on no better ground than that, with more time at their disposal, they might be able to find more evidence that would support their claim.

235    Secondly, Ms Barambah, on behalf of the Turrbal People, made a similar application. She sought to have the Court’s main judgment stayed for six months “for the purpose of enabling [her] to consult with its [sic] extended kins with a view to re-formulating a wider society native title application” (see Sandy No 3 at [5]). Noting that this application contemplated the “formulation and conduct of a new case”, the Judge said “[t]hat is, quite clearly, no proper ground for the court to stay the operation of orders which finally disposed of the application which Ms Barambah did make” (see Sandy No 3 at [5]).

236    For its part, the State responded by submitting that, since the Court had answered separate question (a) in the negative, it should “now proceed to make a determination under the Native Title Act 1993 (Cth) (‘the [NTA]’) that native title does not exist in relation to land and waters in the claim area” (see Sandy No 3 at [6]). Unlike in Badimia FC (see [73]), the State had not earlier sought such a determination in its pleadings, namely, the points of defence it had filed in each proceeding. However, its counsel did point out in oral submissions in this appeal that its solicitor had given notice of such an intention in an affidavit she made in support of an interlocutory application the State filed in the two proceedings on 18 October 2013. At [19] of that affidavit, Ms Stride, the solicitor concerned, swore that:

The State does not seek to delay the hearing scheduled to commence on 25 November 2013. However, I am instructed that the State wishes to ensure certainty is achieved following this trial – in terms of native title issues in relation to the area of land and waters the subject of these proceedings. This will be achieved by a native title determination under s 225 of the Native Title Act 1993 (Cth) whether that is in terms that native title exists, or that native title does not exist. In the event that the present claims are unsuccessful, the prospect of a later native title claim being brought, in relation to the same area of land, is extremely concerning to the State, having regard to the high level of public funding involved in responding to such a claim.

(Emphasis added)

237    As can be seen from the commencing words of this paragraph, Ms Stride’s affidavit was made and filed about five and a half weeks before the trial of these proceedings began on 25 November 2013. When asked in oral submissions at the hearing of this appeal what, if anything, the State had said on this topic in its written opening submissions at trial, its counsel quoted the final paragraph of those submissions as follows:

Consistent with the submissions I put, this is the position … as it appears to the State on the basis of the evidence presently available. The State is however, consistent with its role and function in these proceedings, going to actively participate in this trial and, after hearing the further lay evidence to be adduced over coming weeks, and the expert evidence which will be given concurrently in the final week, we will make submissions as to the finding that may or may not be supported by the evidence.

238    The interlocutory application the State filed on 18 October 2013 that we have mentioned above raises two other issues which it is convenient to mention at this point: the long history of overlapping claims to parts of the claim area; and a research project established by QSNTS known as the “South East Region Research Project” or SERRP. Because they provide some important background to these two claims, we have outlined the details of these two issues below.

239    It is convenient to begin by noting that the Turrbal claim has been extant since 1998 (filed 13 May 1998). Early in its long history, it encountered two competing and overlapping claims: one by the Jinibara People; and the other by the Jagera People. The Jinibara People’s claim was resolved relatively early in the piece, but the Jagera claim was not. As a consequence, in December 2010, the Jagera People’s overlapping claim was set down for trial with the Part B of the Turrbal claim which it overlapped, Part A being the unoverlapped part of that claim.

240    The Jagera People’s claim was resolved at mediation in July 2011. That cleared the way for the whole of the Turrbal claim (Parts A & B) to proceed to hearing at the trial dates fixed for the overlapping claims, namely 28 November 2011: see Sandy 2012 at [3] and [4].

241    At about the same time as the Jagera People’s claim was resolved, the possibility emerged of the Yugara People making an overlapping claim to the claim area. The first indication of that was an application by Mr Desmond Sandy, Ms Pearl Sandy and Ms Ruth James to be joined as respondent parties in the Turrbal claim (Sandy 2011). As Reeves J recorded in Sandy 2012 at [5], that application was unsuccessful for two reasons, summarised as follows:

(a)    a person could not seek to become a respondent party to native title proceedings to obtain a positive determination of native title on behalf of his or her people, clan or group and since that was the clear purpose of the Sandy/James application, it should be rejected …;

(b)    in any event, the application would have been rejected on discretionary grounds because, allowing the Sandy/James applicants to become respondents at that stage of the Turrbal proceedings, may have jeopardised the trial dates (see [2011] FCA 942 at [29]) and because they had delayed in making their application without giving any explanation for that delay ….

(Citations omitted)

242    On the first day of the trial of the Turrbal claim (28 November 2011), the Turrbal People and the State announced to the Court that the parties had reached an agreement in principle whereby they would request the Court to make a consent determination under s 87 of the NTA to the effect that native title did not exist in the claim area (see Sandy 2012 at [7]). Accordingly, the trial dates were vacated and the matter was adjourned for a short period to allow certain procedural steps to be undertaken. The overlapping claim by the Yugara People in this proceeding was filed shortly before the adjourned hearing of the Turrbal claim on 7  December 2011 (see Sandy 2012 at [8]).

243    After a challenge to the validity of the authorisation of the Yugara People’s claim was dismissed in Sandy 2012, in accordance with s 67 of the NTA, the two overlapping claims were consolidated and set down for trial in late 2013 as to the non-extinguishment issues (see at [68] above). The firm commencement date for that trial was subsequently set as 25 November 2013. Those issues were defined in two separate questions to be determined at the trial (see at [230] above).

244    In the interim, there remained a concern about the possibility of yet a further overlapping claim emerging which could affect that trial in the same way as the filing of the Yugara People’s overlapping claim had affected the Turrbal claim. In an attempt to reduce the prospect of that occurring, a number of steps were taken. Those steps were outlined in Sandy 2012 (at [14]–[18]) as follows:

14    … during the course of a directions hearing conducted in February 2012, Mr Wishart, for the [Yugara] People, informed the Court that, as a part of QSNTS’ role as a representative Aboriginal/Torres Strait Islander body for the south east Queensland region, it maintained records of those people who had claimed native title in relation to land or waters in that region. Accordingly, an order was made to the following effect:

By 30 April 2012, Queensland South Native Title Services notify in writing any person or group of persons of whom Queensland South Native Title Services is aware who claims or has claimed to hold native title in relation to any part of the area covered by this application informing them of this application and the matters provided for in ss 66(10)(b) and 66(10)(c) of the Native Title Act 1993 (Cth).

15    In late June 2012, Ms Jessica Ling, a legal officer employed by QSNTS, made an affidavit outlining how QSNTS had complied with the above order. In that affidavit Ms Ling confirmed that:

QSNTS maintains an electronic contacts database that is frequently revised and updated. This database contains the contact details of persons who identify as a member of one or more of the native title claim groups in the QSNTS operational area and have sought to receive correspondence in relation to native title matters. We also maintain contact details of persons in relation to research projects undertaken by QSNTS. QSNTS cannot guarantee the accuracy or completeness of the contact details contained in our electronic database.

16    Ms Ling deposed to having posted letters to all persons (or their legal representatives):

… of whom QSNTS is aware who claims, has claimed or may claim to hold native title in relation to any part of the area covered by the Yugara YUgarapul People’s native title determination … advising them of the matters provided for in sections 66(10)(b) and 66(10)(c) of the Native Title Act 1993 (Cth).

17    She also deposed to sending similar letters to the legal representatives of the Turrbal People, the Jagera People, Mr Eddie Ruska (an Indigenous respondent party in the Yugarapul People’s claim), the Gold Coast Native Title Claim Group and the Quandamooka and Jinibara Peoples and to “… 295 people recorded in the Kabi Kabi contacts folder”.

18    Ms Ling deposed to not having received any responses to any of these letters.

245    Notwithstanding these steps, the same concerns re-emerged a short time later. This brings us to the second issue mentioned above, the SERRP. The Judge described the details of that project and its significance for the Turrbal and Yugara claims in his negative determination judgment by quoting from an affidavit of Mr K Smith that had been filed by QSNTS. That description was as follows (Sandy No 3 at [26]):

Since mid-2010 QSNTS has been undertaking a significant native title research project in part of South East Queensland which includes the Claim Area. That research project, which is known as the South East Regional Research Project or SERRP, is being undertaken under the s. 203BJ(b) NTA function. That research has involved QSNTS deploying internal research staff, contracting 2 external consultant anthropologists, Dr Anthony Redmond and Dr Kevin Mayo and an external consultant historian, Dr Fiona Skyring. I expect that the research will finally be concluded with the delivery of Dr Anthony Redmond’s final report in April this year. Indications from the research so far suggest that credible evidence exists to support native title determination applications within the research area, including potentially in relation to the land and waters within the claim area. That is not to say that QSNTS has an intention to immediately advise potential claim groups that a claim or claim [sic] ought to be authorised in the short term, the ultimate development and authorisation of a claim or claims arising out of the research project will require a significant amount of discussion and explanation with and among potential native title holders in the research area.

The whole of the land and waters claimed by Turrbal People and Yugara Yugarapul People fall within the area covered by the SERRP. Until the SERRP is completed, it is not possible for QSNTS to identify what, if any, people may hold native title within the area. Work previously undertaken by QSNTS as part of the SERRP influenced QSNTS’s decision not to support the claim groups in these matters.

246    In the next paragraph of the negative determination judgment, his Honour described the two previous occasions on which the SERRP had an impact on the Turrbal and Yugara claims, namely, 29 November 2012 and 18 October 2013. His Honour said (Sandy No 3 at [27]):

The SERRP research project has been relevant in interlocutory applications made on two previous occasions in this proceeding. First, on 29 November 2012, the State applied unsuccessfully to have the hearing of the applicants’ claims deferred until after the results of the research were known. And secondly, on 18 October 2013 the State applied, again unsuccessfully, for a report by Dr Anthony Redmond entitled ‘Comments on the Yagarabal [sic] and Turrbal claim areas and claimant groups’, and for a report by Dr Kevin Mayo entitled ‘Preliminary Genealogical Report for South-East Region Research Project (SERRP)’, apparently dealing with matters that arose in the course of the SERRP research project, to be admitted into evidence.

247    The interlocutory application of 18 October 2013, mentioned secondly above, is, of course, the same application as that described earlier in these reasons (see at [236] above). There, we quoted from Ms Stride’s affidavit that was filed in support of that application. Ms Stride’s affidavit also shows that one of the State’s concerns in both these interlocutory applications was the possibility of a further overlapping claim being filed with respect to the claim area. First, with respect to the 29 November 2012 application, Ms Stride said in her affidavit that (at [3]):

On 29 November 2012, the State made an interlocutory application seeking orders, the effect of which would have been to delay the trial in this matter until the completion of the South East Regional Research Project (‘SERRP’) which was being undertaken by Queensland South Native Title Services (‘QSNTS’), given the probability of that research leading to a further overlapping claim in the region.

(Emphasis added)

248    Ms Bowskill, who appeared as counsel for the State at the hearing of the 29 November 2012 application, explained why the SERRP was at the heart of these concerns. She said:

… The court has been aware, and the parties have certainly been aware for some time, of a research project that has been ongoing, organised by Queensland South Native Title Services, the relevant representative body for the area.

…

What QSNTS have said is that the research is reasonably well advanced in relation to a region that extends from the Pine River in the north, down to an area south of the Logan area. So it’s broader than these two claims but it encompasses these two claims and … it’s considered likely that QSNTS will recommend authorisation of another claim taking up the area that’s covered by the Turrbal and Yugara claims, with a view to that being authorised in mid-2013.

(Emphasis added)

249    Since it would result in a delay to the trial of the proceedings that was then due to commence in late 2013, and since both the Turrbal and Yugara applicants opposed that trial being adjourned, Reeves J rejected the State’s 29 November 2012 application. However, in the course of debate at the hearing of that application, Reeves J asked the State to inform QSNTS (who was not acting for a party in the proceedings at that time) that, if it did file such an overlapping claim on behalf of another claim group, it should expect that claim to proceed to trial in late 2013 along with the Turrbal and Yugara claims. In other words, it should not expect that the filing of such a claim would lead automatically to an adjournment of that trial.

250    In its later interlocutory application of 18 October 2013, the State essentially sought two orders. First, to articulate the separate question to be determined at the trial of these two claims and, secondly, to allow it to rely upon two expert reports – one by a Dr Anthony Redmond and the other by a Dr Kevin Mayo – both prepared as a part of the SERRP. On 30 October 2013, the Judge made orders stating the separate questions in the terms outlined by the State. These were the separate questions that his Honour answered in the main judgment (see at [230] above). However, his Honour rejected the State’s application to rely on the reports of Dr Redmond and Dr Mayo. He did so having regard to the opposition of the Turrbal and Yugara claimants and the fact that the trial would be delayed. As it happened, no further overlapping claim was ever filed. However, as will appear below, QSNTS relied on these two expert reports in its submissions, opposing the making of the negative determination.

251    Finally, in this account of the procedural history of these two claims, it is necessary to outline the role and involvement of another party: Mr Eddie Ruska. Mr Ruska is an indigenous person. He was joined as a respondent party in the Yugara proceeding in December 2011 “to resist the applicants’ claims by demonstrating that he was himself the holder of native title in the claim area” (see Sandy No 3 at [36]). Despite having this objective, in February 2013, about nine months before the trial was to begin, Mr Ruska filed a notice stating that he did not wish to take an active part in the proceeding (see Sandy No 3 at [36]). He did not, therefore, appear at the trial later in 2013. However, after the evidence at the trial had closed, and before final submissions, the Yugara appellants successfully applied to re-open their case to tender some new evidence (see Sandy No 2 at [236]). At that re-opened hearing on 1 April 2014, Mr Ruska appeared by his solicitor and sought to tender an affidavit which he had affirmed on 1 May 2012 (see Sandy No 3 at [36]). The Judge rejected that application. Not daunted, Mr Ruska later attempted to rely upon the same affidavit in opposing the making of the negative determination. The Judge described that incident in his negative determination judgment in these terms (Sandy No 3 at [37]):

He does so, as it seems to me, no longer by way of opposition to the applicants’ claims (which have been resolved adversely to them), but by way of foreshadowing an occasion in the future when his own claim will be before the court. But his solicitor has made it quite clear that he does not have the resources to make, or to prosecute, a native title application on his own. Rather, he proposes to throw in his lot, as it were, with QSNTS, and submits that the court should do as QSNTS submits and withhold the making of a negative native title determination pending the release of Dr Redmond’s report in April.

252    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.

253    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.

254    “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.

255    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).

256    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.

257    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.

258    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”.

259    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”.

260    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”.

261    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].

262    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 Yorta Yorta 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.

263    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.

264    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]).