State's submissions
28 The State says the claimants' assertion, that the Court does not have the power to make a determination that native title does not exist pursuant to a claimant application, is incorrect as a matter of statutory construction. The State contends that there are no procedures under the NTA which prevent a determination that native title does not exist in respect of a claimant application or positively require a non-claimant application for such a determination. It suggests the logical outcome of the claimants' interpretation of the NTA would be to require the lodgement of a non-claimant application, mirroring every claimant application, in order to found a determination of no native title.
29 The State notes that, relevantly, s 225 of the NTA defines a "determination of native title" as a "determination whether or not native title exists in relation to a particular area … and, if it does exist, a determination of [various matters set out in subparas (a) to (d)]" (emphasis added). Therefore, in the State's submission it is readily apparent from the opening words of s 225 of the NTA that a determination of native title may be either a positive determination (that is, that native title does exist) or a negative determination (that is, that native title does not exist). Only if the determination is a positive one must the orders making the determination also include the matters referred to in subparas (a) to (d) of s 225.
30 The State submits s 13(1) of the NTA provides that an application may be made to the Federal Court under Pt 3 of the NTA for a "determination of native title". Section 61 sets out the applications that may be made under the NTA. Relevantly, it provides for the making of a "native title determination application". A "native title determination application" is described in s 61 as an "[a]pplication, as mentioned in subsection 13(1), for a determination of native title". Section 61 further provides that a "native title determination application" may be brought by: persons who claim to hold native title; persons who hold non-native title interests; the Commonwealth; or the relevant State or Territory.
31 Therefore, in the State's submission, it is clear and unambiguous from the words of s 61 that any applicant (claimant or otherwise) who makes a "native title determination application" is applying for the same thing, namely "a determination of native title", which, as explained above, is defined in s 225 as a "determination whether or not native title exists" (emphasis added). Accordingly, a "native title determination application" brought on behalf of a native title claim group is an application for a "determination whether or not native title exists".
32 In contending for this construction of the Court's power under s 225, the State relies on Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210, in which Jessup J notes, at [16] and [18], that the fact that a claimant application "might result in a determination that native title does not exist strikes me as an inescapable possibility under the statutory scheme … the Act contemplates the making of such a determination as within the range of possible outcomes," and that "[b]y the terms of s 225, it is also a matter of public record that [a claimant application] may result in the making of a determination that native title does not exist in relation to the land concerned."
33 Jessup J rejected the submission that a negative determination could only be made in circumstances where a non-claimant application had been filed, and considered that the Court had the power to make a negative determination in respect of a claimant application which had been unsuccessful following a contested hearing.
34 The State submits it is apparent from Jessup J's reasons that his Honour was addressing substantively identical submissions to those made by the claimants in the present case, and unless this Court is convinced the decision is clearly wrong, the Court should follow it: Graham on behalf of the Nadju People v State of Western Australia [2014] FCA 516 at [24].
35 The State notes that the claimants cite no relevant authority for their assertion that the Court does not have the power to make a determination that native title does not exist pursuant to a claimant application, apart from Clifton at [43], which is said to stand for the proposition that there are procedures of the NTA which require a non-claimant application before a determination that native title does not exist can be made, and that those asserted procedures are critical to a valid exercise of the jurisdiction of the Federal Court.
36 In the State's submission, Clifton does not assist the claimants in the present case as it concerned the different question of whether an indigenous respondent, not having made an application for a determination, nor having complied with the relevant authorisation requirements, was entitled to a determination in its favour. The Full Court in Clifton, at [37], acknowledged that the question before the Court in that case was "quite different" from the situation faced by the Court when it was required to determine, amongst other things, "the nature and extent of the native title, rights and interests held by the claim group". The resolution of disputes of this kind was, according to the Full Court "an inherent aspect of the determination of an application made under s 13(1)".
37 In further support of its interpretation of the NTA, the State notes that the Court's power to make a negative determination pursuant to a claimant application, either in whole or in part has been, and is, routinely exercised. It says the effect of the claimants' proposition, in the State's submission, is that the Court has been, and is, therefore, routinely in error in this respect.
38 It points to the number of instances in which the Court has made a negative determination following a contested hearing: Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606; Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178; [2000] FCA 1609; Risk on behalf of the Larrakia People v Northern Territory [2006] FCA 404; Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93; and, most recently, Yugara.
39 The State further notes that many positive determinations include a determination that native title does not exist in relation to some areas (due, for example, to extinguishment, or failure to make out the elements of proof of native title in respect of certain areas). The State concludes that many, if not most, determinations are mixed "positive" and "negative" determinations. Each is, as s 225 requires it to be, "a determination whether or not native title exists". Therefore, in the State's submission, the claimants' distinction between "positive" and "negative" determinations is not reflected in the NTA or in the decided cases.
40 The State accepts that a number of determinations where native title has been found not to exist were consent determinations, but submits that the Court's power is relation to litigated determinations and consent determinations is not separate or different. The State says the NTA expressly provides that a consent determination under ss 87 or 87A must be made in compliance with the same provisions of the NTA as a litigated determination, namely ss 94A and 225 of the NTA. Sections 87(1)(c) and 87A(4) of the NTA require the Court to be satisfied that an order in, or consistent with, the terms of the proposed determination would be within the power of the Court before making any determination, and the Court receives submissions from the parties in this respect prior to making consent determinations in Western Australia.
41 Finally, the State submits that by s 81 of the NTA the Federal Court has the jurisdiction to "hear and determine" applications that relate to native title, including claimant applications. The State says it would be a perverse result, one contrary to both the object of the NTA referred to in s 3(c) and to the principles of finality and the avoidance of multiplicity of proceedings, including those contained in s 22 of the FCA Act, if the Court, having heard a claimant application and decided the merits of that application, is without power to "determine" the application merely because the result is a finding that native title does not exist.
42 The State contests the claimants' submission that the provisions of the NTA displace s 22 of the FCA Act in this respect. It says that, to the contrary, the Full Court in Clifton observed at [41] that while s 22 of the FCA Act does not expand the jurisdiction of the Court (and consequently a determination of native title must be made in accordance with the procedures of the NTA) s 22 of the FCA Act "is concerned with the way in which the Court is to exercise that jurisdiction". Therefore, in the State's submission, in making a determination of native title in accordance with the procedures of the NTA, s 22 provides that the Court shall "as far as possible" resolve all matters in controversy between the parties "completely and finally" and avoid "all multiplicity of proceedings" which may result.