Glenvale Holdings Pty Ltd v State of Queensland

Consideration 8 Section 86G of the Act provides: (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). Meaning of unopposed (2) For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant. 9 The application before the Court is a non-claimant application within the meaning of s 253 of the Act. The other party to the application, the State of Queensland, has notified the Court in writing that it does not oppose an order in, or consistent with, the terms sought by the applicant. The Court has power to make an order in the terms sought by the applicant by way of a negative determination without holding a hearing, provided the additional terms of s 86G are satisfied, namely: the period specified in the notice given under s 66 of the Act has ended (s 86G(1)); the Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court (s 86G(1)(b)); and it appears to the Court to be appropriate to make an order without holding a hearing (s 86G(1)). 10 The note to s 86G(1) relating to the requirement that the Court's order complies with s 94A is referable to the matters mentioned in s 225. Section 225 defines a "determination of native title" as a determination whether or not native title exists in relation to a particular area (the determination area) of land and waters and, if it does exist, a determination of the particular matters set out in subparagraphs (a) to (d) of the provision. 11 In CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 appellant argued that, in the circumstances of that case, the Full Court was precluded by the Act from making a determination that native title did not exist with respect to the relevant area of land. The majority rejected this proposition, and observed: 65 … The appellant's arguments fail to recognise that a determination of native title is defined as a determination "whether or not native title exists in relation to a particular area" (emphasis added), and that a claimant application might fail in whole or part for a multitude of reasons, one of which in any given case might be that the Court is satisfied that no native title exists in relation to that area of land and that it is otherwise appropriate in all of the circumstances to make a negative determination in order to reflect that state of satisfaction. 66. To confine the powers of the Court as the appellant seeks is inconsistent with the object of the Act of establishing a mechanism for determining claims to native title (s 3(c)), because the mechanism provided would be incomplete, impractical and incompatible with the scheme of the Act as discernible from the provisions identified above. It would also do nothing to promote the object of providing for the protection and recognition of native title (s 3(a)) because, in any case where it is decided that a negative determination should be made, it is a necessary (but not sufficient) pre-condition that the Court is satisfied that there is no native title that can be recognised and thus protected. This satisfaction, it must be said, will not follow simply from the dismissal of a claimant application. Whether it is appropriate to proceed to consider the making of a negative determination will depend in part upon the reasons why a claimant application has failed. It will depend in part also upon the extent to which, if at all, competing claimant applications have been heard at the same time. If the Court is satisfied that all the potentially competing claimants for the recognition of native title in respect of the claim area have participated in the hearing, and all have failed, a negative determination could be made if the Court is satisfied that there is no native title that can be recognised and protected. If that is not the case, the Court will no doubt consider whether, despite the notice of the claimant application given pursuant to s 66, there are reasons for notice of the prospect of a negative determination being given to some other person or persons, or indeed to the native title representative body for the particular area. Given that a negative determination is, as we have pointed out above, a determination in rem, it is important that the Court carefully consider such matters before it can be satisfied, on the balance of probabilities, that no native title right or interests exist in relation to a particular area. 12 Earlier in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No. 2) [2008] FCA 1929; (2008) 181 FCR 300 at [88] Bennett J held that the non-claimant applicant bears the onus of satisfying the Court, on the balance of probabilities, that native title under the Act did not exist over the area in respect of which the determination was sought, however the non-claimant applicant was not required to disprove each of the elements of native title that a claimant must establish in respect of a claimant application. Dismissing the appeal against her Honour's decision, the Full Court found further that the claimant must adduce evidence in support of its case proving the negative proposition, and that there must be more than a scintilla (Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 at [80]). 13 In this case the non-claimant application has been brought on the basis that native title does not presently exist, and it is not claimed. In similar circumstances in Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067, Griffiths J noted that, if a respondent to a non-claimant application established that native title may well exist (by adducing for example evidence from "traditional owners" about the boundaries of traditional lands, areas of significance to that group, perhaps supported by archaeological or anthropological evidence), then the non-claimant may be required to refute that evidence, perhaps by demonstrating extinguishment in relation to that area. However, as his Honour noted in Deerubbin: 52. Where an unopposed non-claimant application in which orders are sought by consent of the parties and: (a) notice has been given to the relevant representative body under s 66 of the NT Act; (b) public notice has been given under s 66 of the NT Act and no response received following that notice; and (c) National Native Title Tribunal ... searches establish that there is: (i) no previous approved determination of native title in the land the subject of the application; and (ii) no current application in relation to the land the subject of the application, the Court is normally "entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the land" and that finding "supports an inference of an absence of native title" (Worimi No 2 at [46] citing Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 at [59]). 14 The circumstances as described by his Honour are present in this case. 15 I note the evidence before the Court, contained in the email of Mr Jeff Harris of QSNTS dated 23 March 2018 annexed to Ms Samantha O'Neil's affidavit sworn 6 April 2018, that "two groups assert to the area, the Githabul People and Gambuwal People", however I accept the submission of the applicant that the "assertion" is potentially to a broad region, rather than the Land in question. 16 In my view the Court has power to make the order sought by the applicant. 17 Further, I am satisfied that it is appropriate to make the order sought where: the application is unopposed; public notice of the non-claimant application has been given under s 66 of the Act and it is not in dispute that no response has been received following that notice; there is no current native title application in relation to the Land; there is no previous approved determination of native title in relation to the Land; and the reason for the non-claimant application has been explained by the applicant, and is a satisfactory explanation. 18 Importantly I also note that notice of the non-claimant application was given to QSNTS, which is the relevant representative body under s 66 of the Act. Despite the statement that two groups "assert" to the area, neither QSNTS nor either of the native title groups with a potential interest have sought to be joined as a party to the proceedings. I accept the submission of the State that, in the absence of a cogent assertion of native title by a competent application under s 61 of the Act after the notification process, it is open for the Court to infer that native title does not exist in relation to the Land. 19 Accordingly, I am satisfied that the Court has power, and it is appropriate, to make a determination as sought by the applicant, that native title does exist in relation to the Land. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.