Gidyea Cattle Company Pty Ltd v State Minister for the State of Queensland

Statutory framework 8 By s 13(1)(a) of the Act, an application may be made to the Court for a determination of native title in relation to an area for which there is no approved determination of native title. The persons who are entitled to bring such an application include those who hold a "non-native title interest" in relation to the whole of the area in relation to which the determination is sought (s 61(1)). The applicant, by reason of the lease over Lot 16, holds such an interest (s 253). This category of native title determination application is defined by s 253 of the Act as a "non-claimant application". 9 A "determination of native title" is a "determination of whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of…" each of the matters mentioned in ss 225(a) to 225(d) of the Act. An order in which the Court makes a determination of native title must set out each of the matters mentioned in s 225 (s 94A). 10 The expression "native title" is defined by s 223(1) of the Act as follows: 223 Native title 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.

Notification of a non-claimant application 11 The Native Title Registrar must be given a copy of a non-claimant application, and any accompanying affidavit or prescribed documents, as soon as practicable after it is filed in the Court (s 63). Thereafter, the Native Title Registrar is required to comply with the notification requirements in s 66 of the Act. 12 One aspect of this, is the obligation to give a copy of the non-claimant application to the State Minister and the representative body for the area covered by the application (ss 66(2) and 66(2A)). Another aspect is notification of the details of the non-claimant application to a range of persons, including any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body for the area covered by the application (66(3)(a)(i)-(iii)). 13 If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Court a written notice, within the period specified in the notice under s 66 of the Act, that the Minister does not want to be a party (s 84(4)).

Section 86G of the Act 14 Section 86G(1) of the Act confers a discretionary power on the Court to make a negative determination without holding a hearing when certain conditions are satisfied. The section provides as follows: 86G Unopposed applications Federal Court may make order (1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66: (a) the application is unopposed; and (b) the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court; the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). 15 A non-claimant application is "unopposed" for the purpose of s 86G(1) if the only party is the applicant or if each other party notifies the Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant (s 86G(2)). 16 While a non-claimant application may be determined under s 86G of the Act, this does not alter the requirements of proof. As the Full Court outlined in Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 223 at [44], "The question for the Court remains the same whether the application is unopposed or contested: has the applicant discharged their burden of proof that no native title exists in the claim area?" 17 The standard of proof is the civil standard, on the balance of probabilities: Mace at [54]. Whether the burden of proof has been discharged should be decided on the circumstances of each case, and on the evidence adduced, without the need to rely on maxims or presumptions arising in a different adversarial context: Mace at [64]. 18 In Wagonga Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1113 (upheld on appeal), Jagot J helpfully summarised the propositions established in Mace regarding non-claimant applications: at [10]. Those principles relevantly include the following: (a) The reason for a non-claimant application does not govern the Court's approach to the exercise of the power: Mace at [42]. (b) A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at the time of sovereignty or any general inquiry into how those rights may or may not have continued: Mace at [55]. (c) Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: Mace at [48]. (d) The Court mut act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: Mace at [52]. (e) The provisions of the Act are intended to facilitate all persons with a proper interest in an area of land taking step to ensure that their interest is taken into account when the Court is making a determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations. A better approach is to focus on what the evidence before the Court does establish, whether for or against the determinations sought by the non-claimant application: Mace at [56]. (f) In a non-claimant application, account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the Act: Mace at [66]. (g) No hard and fast rules can be laid down about what evidence might be required or what might suffice for a non-claimant applicant to meet the required standard of proof: Mace at [68]. Given what is at stake and the fact that any determination affects property rights as against the whole word no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: Mace at [72]. (h) The Court's task is not to be more or less "stringent" depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so, the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: Mace at [82]. (i) The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application, which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: Mace at [97]. 19 It is against that background that I turn to consider the facts in this case.

Notification of the non-claimant application 20 The National Native Title Tribunal (NNTT) publicly notified the non-claimant application in the Koori Mail on 13 March 2024 and in the Longreach Leader on 15 March 2024. The notice identified the "notification day" as 27 March 2024. The notification period for the non-claimant application ended on 26 June 2024. 21 The NNTT also provided a copy of the notice containing the details of the non-claimant application to the State and the representative Aboriginal/Torres Strait Islander body for an area that includes Lot 16, Queensland South Native Title Services Ltd (QSNTS). 22 The State Minister became a party to the proceeding by operation of s 84(4) of the Act. Neither QSNTS, nor any other person, has sought to become a respondent.

Previous claimant applications 23 Lot 16 was previously overlapped by three native title determination applications brought on behalf of the Bidjara People. 24 The first claimant application, Lawton on behalf of the Bidjara People and their clan groups (NNTT File No. QC1997/001), was filed on 15 January 1997 and withdrawn on 4 November 1997. 25 The second claimant application, Fraser and Ors on behalf of the Bidjara People #3 v State of Queensland & Ors (QUD6156/1998), was filed on 28 October 1997 and discontinued on 5 September 2008. 26 The third claimant application is Wyman and Ors on behalf of the Bidjara People #6 v State of Queensland & Ors (QUD216/2008). Bidjara People #6 was partly overlapped by the claims of the Brown River People (QUD245/2011 and QUD301/2012) and the Karingbal People (QUD23/2006 and QUD310/2012) (overlap area). Lot 16 is not located within the overlap area.

Negative determination over the overlap area 27 Following a trial on a separate question in connection with respect to the overlap area, Jagot J found that the Bidjara People #6 claimants "do not possess rights and interests under traditional laws and customs which give them a connection with the land and waters of the overlap area, because the pre-sovereignty system of law and custom has not continued": Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8 (Wyman (No 3)) at [5]; citing Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Wyman (No 2)) at [530]-[533] and [538]-[671]. 28 On 21 February 2014, her Honour made a negative determination with respect to the overlap area: Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93. The above referenced finding in Wyman (No 2) underpinned that decision: Wyman (No 3) at [5]-[6]. 29 Both Wyman (No 2) and the exercise of the discretion to make a negative determination in respect of the overlap area were upheld on appeal by the Full Court: Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108 at [95]-[429] and [489]-[500] (per North, Barker and White JJ).

Summary dismissal of Bidjara People #6 30 On 5 July 2016, Jagot J summarily dismissed Bidjara People #6 and Arwa Waterton on behalf of the Bidjara People #7 v State of Queensland (QUD644/2012): Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777. As her Honour outlined at [31], this was because: … I am satisfied that the continuation of the Bidjara 6 and Bidjara 7 claims represents an abuse of process which should not be permitted to continue. Although the Bidjara 6 and Bidjara 7 claims relate to different land (that is, land outside of the overlap area) as paragraph 39 of the amended points of claim confirms, they are each claims on behalf of the same claimant group. It will be recalled that by paragraph 39 the applicants assert that "the overlap area and Bidjara 6 Area and Bidjara 7 Area is Bidjara country", meaning country in which the asserted greater than 7000 Bidjara people constituting the claim group hold the asserted native title rights and interests. An essential element of the maintenance of each of the claims is the proposition that the claimant group - which is the same claimant group as in Wyman No 2 - is united in observance and acknowledgment of the traditional laws and the traditional customs of pre-sovereignty Bidjara society. That issue has, however, already been determined against the claimant group. (Emphasis added.) 31 On 12 April 2017, Reeves J dismissed an application for leave to appeal the summary dismissal of Bidjara People #6 and Bidjara People #7: Waterton on behalf of the Bidjara People v State of Queensland [2017] FCA 633.

Power to make the negative determination 32 The applicant has standing to make the non-claimant application because it holds a non-native title interest in relation to the whole of the area in relation to which the negative determination is sought (s 61(1) and the definition of "interest' in s 253 of the Act). Within the external boundary of Lot 16 is a small landlocked parcel of land, described as Lot 15 on Crown Plan LO86, Tenure Reference TL0/232671. The applicant does not seek a negative determination in respect of Lot 15. 33 The Court has jurisdiction to hear and determine the non-claimant application under s 81 of the Act. The statutory pre-conditions to making the negative determination are also met, given that: (a) The non-claimant application relates to an area for which there is no approved determination of native title (s 13(1)(a)); (b) The notification period under s 66 of the Act for the non-claimant application has ended (s 86G(1)); (c) The State Minister, as the only respondent to the non-claimant application, has notified the Court in writing that the State Minister does not oppose an order in, or consistent with the terms sought by the applicant (s 86G(1)(a) and (2)); and (d) An order in, or consistent with, the terms of the negative determination sought by the applicant is within the power of the Court (ss 86G(1)(b), 94A and 225).

Has the applicant established that native title does not exist? 34 I am satisfied that the applicant has discharged its burden of proof for the following reasons. 35 As the Full Court emphasised in Mace, the weight to be given to the absence of any responses to the notification process is to be "considered in the context of all the circumstances relating to the land and waters covered by the non-claimant application, including matters such as whether there have been previous claims over the land and waters and the fate of those claims and what information the relevant representative body (or Land Council) might have about people who may claim connection to the land and waters based on traditional law and custom": at [94]. 36 Here, the context relevantly includes the fate of the three previous claimant applications over Lot 16. The first two claimant applications, Bidjara People and Bidjara People #3, were not prosecuted to a final hearing. The third claimant application, Bidjara People #6, was summarily dismissed as an abuse of process given the finding in Wyman (No 2) that the Bidjara normative system of traditional law and custom had not continued as required by the Act: Wyman at [26]-[31] and [50]. 37 In those circumstances, and in the absence of any responses following the notification process referred to at [20] and [21] above from either QSNTS or any person asserting native title, I am satisfied that the applicant has established, on the balance of probabilities, that native title does not exist in relation to Lot 16.

Discretion 38 Although the applicant has discharged its burden of proof, there remains a discretion to be exercised. Relevant, in that regard, is the gravity of a negative determination, and its permanency in terms of its effect, on the native title rights and interests which are otherwise sought to be protected by the Act: Mace at [66]. While such an order is a serious step, given the history of the previous claimant applications over Lot 16 and the absence of any responses following notification by the NNTT, I am satisfied that it is appropriate to make the negative determination sought.

Conclusion 39 The appropriate order is that native title does not exist in relation to Lot 16. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.