CONSIDERATION
62 It is convenient to begin with some observations on the onus of proof issue upon which both parties agree. In their submissions on that issue, the Murray family cited the following observations of Young CJ in Equity in Blanch t/as Hicksons v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653; [2005] NSWSC 241 (Blanch) at [6]-[7]:
6 The onus is on the plaintiff to establish the ambit of the rights to be declared and to prove all the facts necessary to enable the declaration to be made. Thus in an application for a declaration that land is not restricted by a covenant, the onus is on the plaintiff to prove that it is not so affected. It is not on the defendant to prove that it is affected …
7 The whole question of onus was considered by McLelland CJ in Eq in Massoud v NRMA Insurance Ltd. That was a case where the defendant had cancelled Mr Massoud's policy alleging that he had knowingly made false statements in connection with his claim. Mr Massoud then commenced declaratory proceedings that the defendant's purported avoidance of the plaintiff's policy was wrongful and void. McLelland CJ in Eq held it was up to Mr Massoud to prove that he had not made false statements, notwithstanding the fact that had the matter proceeded in the normal way, the legal or evidentiary onus may have been the other way. His Honour laid down the guiding principles:
"(1) a party who seeks relief has the burden of satisfying the Court of facts which (in the absence of proof of other facts) would justify the grant of that relief;
(2) what those facts are depends principally upon:
(a) the nature of the relief sought; and
(b) the operation of any relevant presumptions;
(3) in the case of relief by way of declaratory order, the precise terms of the declaration assume particular significance in that (subject to any relevant presumption) the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought (even if in proceedings by that party for relief of another kind, or in proceedings by the other party, that matter would not arise unless raised (and the burden of proof consequently assumed) by the other party)."
(Citations omitted)
63 This issue of onus of proof and proving a negative proposition has been considered in the context of the NTA, in particular in respect of non-claimant applications. In such applications, an applicant has to prove that no native title exists in the land concerned. In Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3 (Worimi), the Full Court made the following observations about the difficulties associated with that task and how it may be discharged (at [80]):
… It is obviously a difficult task to prove a negative proposition. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of those things. It must nevertheless be more than a scintilla. It may be determined having regard to the power of the respective parties to adduce relevant evidence, and the extent to which they do so …
(Citations omitted)
64 The latter observation is important. It refers back to the following passage at [71] about Worimi's (the respondent) role in that proceeding:
… as a matter of commonsense, it was desirable in a case such as the present, but not necessary (subject to the orders by which Worimi was joined as a party), that Worimi give evidence. That is simply the consequence of the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 at 65, 66; 98 ER 969 at 971. In a case where an applicant has the onus of proving a negative proposition, and where another party has a greater means of producing evidence to contradict the negative proposition, that maxim has a particular resonance: Apollo Shower Screens 1 NSWLR at 565 per Hunt J; Purkess v Crittenden (1965) 114 CLR 164 at 167-168, 171.
65 The two authorities upon which the Court relied for the maxim to which it referred were considered relatively recently by another Full Court in Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 233. That judgment also concerned two non-claimant applications under the NTA. With respect to Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (Apollo Shower Screens), the Court said (at [60]-[61]):
60 It is clear that the circumstances in a proceeding such as Apollo Shower Screens are quite different to the circumstances of a non-claimant application. It was a proceeding between protagonists known to each other, who had a pre-existing dispute about the application of specific statutory provisions to them.
61 In a non-claimant application, the applicant seeks a negative determination in rem. The potential holders of native title may be unknown to the non-claimant applicant, or they may be known. The composition and constitution of any native title holding group may, in fact, be unknown even to all potential claim group members themselves … Again, all will depend on the circumstances, but that is why resort to maxims, and the borrowing of the application of maxims from adversarial contexts far removed from native title may not, with great respect, be the most useful approach.
66 With respect to Purkess v Crittenden (1965) 114 CLR 164 (Purkess), the Court observed (at [62]) that it related to an award of damages in a personal injury case and, after quoting some observations from the plurality judgment of Barwick CJ, Kitto and Taylor JJ (at 168) and noting the difference in the rights at stake, the Court then went on to say (at [63]):
In a cause of action based on private rights between two specific parties, and on a question such as damages, different principles may apply. In a non-claimant application, it is inappropriate to impose an inevitable or specific evidential burden on respondents, or potential respondents, so that a non-claimant applicant need only to make out a "prima facie" position. That would be a gloss on the application of the usual burden and standard of proof, which applies as much to a non-claimant application as it does to a claimant application.
The Court also noted (at [66]), by reference to an earlier Full Court decision in Badimia (at [48]) that another distinguishing factor was: "[t]he fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations".
67 While the present application directly concerns the provisions of the NTA and the effect of a determination made under it, it is not a non-claimant application under that legislation. Instead, it is, in my view, more closely aligned to a dispute of the kind that arose in Apollo Shower Screens and Purkess involving two parties, well known to each other, concerning their private rights. That, all the more so, having regard to the fact that this proceeding is the successor of a proceeding commenced in the District Court at Cairns relating to the same parties and the same rights. Furthermore, the declaration sought by the GMY Prescribed Body Corporate will not operate in rem and will not bind "the world". It will only operate as between the parties to this proceeding, namely the GMY Prescribed Body Corporate, acting as agent for the native title holders, and the named members of the Murray family. Accordingly, I consider the assessment of the evidence in this matter is properly guided by the principles highlighted in Worimi, Apollo Shower Screens and Purkess, including "the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and the power of the other to have contradicted" (see Worimi at [71]).
68 Before turning to weigh that evidence, it is important to identify what it is that the GMY Prescribed Body Corporate is required to establish. That is so because, as Young CJ in Eq said in Blanch, a moving party in the position of the GMY Prescribed Body Corporate must "prove all the facts necessary to enable the declaration to be made". Further, as McLelland CJ in Equity said in Massoud v NRMA Insurance Ltd (1995) 8 ANZ Insurance Cases ¶61-257 (75,873) (quoted by Young CJ in Equity in Blanch at [62] above), that depends on the "precise terms of the declaration" sought. In this matter, they are, as already mentioned, that the Murray family has no rights to lawfully occupy and possess the Subject Land. However, as also already mentioned, because of the contentions of the parties, particularly those of the Murray family (at [59] above), the relevant factual issues adopt a particular focus, namely whether, under the Determination, the members of the Murray family hold native title rights or interests that permit them to lawfully occupy and possess the Subject Land.
69 Turning, then, to the evidence, since it accepts that it bears the onus of proof in this proceeding, it is appropriate to begin with the evidence adduced by the GMY Prescribed Body Corporate on the primary issue stated above (at [54]). On that issue, its evidence was essentially confined to the Determination; its contents; and the effect thereof. In that respect, it is important to note that s 94A of the NTA requires a determination of native title to "set out details of the matters mentioned in s 225". Unsurprisingly, therefore, most of the clauses of the Determination set out above (at [17]) follow the structure of s 225 and contain the details of the various matters mentioned in it.
70 Section 225 provides:
A determination of native title is a determination 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:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests
71 When one compares this provision with the contents of the Determination (at [17]-[19] above), it can be seen that they correspond closely. First, cl 1 of the Determination corresponds to the words of the chapeau to s 225 in that it answers the question: "whether or not native title exists in relation to a particular area (the determination area) of land or waters". In the event the answer to that question is in the affirmative, which cl 1 is, s 225 then requires a determination to include the matters set out in sub-sections (a) to (e).
72 Accordingly, cl 2 of the Determination describes "who the persons, or each group of persons, holding the common or group rights comprising the native title are". It does that by reference to the persons described in Schedule 1 designating them to be the "Native title holders". Which is to say:
… those Aboriginal People:
who are Mandingalbay Yidinji-Gunggandji People on the basis of descent …
from the 13 named apical ancestors in (a), or who have been recruited in accordance with (b).
73 I interpose to note that the expression "Native title holder" is defined in s 224 of the NTA as follows:
(a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust - the prescribed body corporate; or
(b) in any other case - the person or persons who hold the native title.
In this matter, cl 12 of the Determination provides that the native title rights and interests are not to be held in trust. It follows that the native title holders are defined in accordance with s 224(b) above and comprise the Mandingalbay Yidinji-Gunggandji People as described in cl 2 and Schedule 1 of the Determination (see at [72] above).
74 Returning to the contents of the Determination, and the provisions of s 225, the native title rights and interests held by the Mandingalbay Yidinji-Gunggandji People are described in cll 3 to 7. This complies with the prescription in 225(b) to determine "the nature and extent of the native title rights and interests in relation to the determination area". In this respect, it is also important to note the terms of s 223, which defines what "[t]he expression native title or native title rights and interests means". Namely, and relevantly:
… 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.
75 Thus, for example, cl 6(b) states that the native title rights and interests so described are relevantly:
… subject to and exercisable in accordance with:
…
(b) the traditional laws acknowledged and traditional customs observed by the native title holders.
76 Continuing with the clauses of the Determination, cl 8, along with Schedule 3, describe the "other" rights and interests in relation to the Determination Area and cll 9 and 10 describe the relationship between the native title rights and interests described in cll 3 and 4 and the other rights and interests described in cl 8. These clauses therefore comply with s 225(c) and (d) respectively.
77 In Drury, after having referred (at [19]-[20]) to the discussion in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135 about the distinction between a community of people and a number of separate groups and individuals when considering who holds the communal title comprising the native title rights and interests concerned, the Full Court continued (at [21]-[22]):
[21] It was noted that notwithstanding the existence of groups and individuals with particular native title rights and interests in Mabo (No 2), the form of declaration made by the Court was global and declared the rights held by all the Meriam people: at [70]. It was also noted that the provisions of the [NTA] had their origins in the majority judgment in Mabo (No 2) "and could not have been intended to undercut the fundamental principle of the communal character of native title": at [71]. It was emphasised that the laws and customs from which native title rights and interests derive their existence "must necessarily be those of a society or group": at [77]. Nevertheless, the decision recognised the following two possibilities depending upon the nature of the society said to be the repository of the traditional laws and customs giving rise to the native title rights and interests:
(1) The members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans (at [79]);
(2) The members of the relevant society may be dispersed in groups over a large arid or semi-arid area such that an inference of communal ownership by all members of the society may be difficult if not impossible to draw in which case a determination may be made in favour of individuals or small groups who held native title rights under traditional laws of a society of which they are part (at [80]).
[22] It is a question of fact in each case as to whether the common connection, by reason of the manner in which it is shared, results in communal ownership by all members of the society (which may be shared intramurally) or in communal ownership of particular areas by particular individuals or groups with no communal ownership by the whole society. If communal ownership is found to be held by a particular group rather than the whole society then all the members of that group hold the native title. However, the [NTA] does not contemplate some form of derivative or subsidiary communal native title which is also a native title such that each intramural right or interest possessed by a sub-group or individual has the same character as the community title described in Mabo (No 2).
78 The Court in Drury went on to provide the Full Court decision in De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 as "an example of an instance where 'the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part'" (Drury at [23]). As well, it referred to the subsequent Full Court decision in Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 (Bodney) where "Finn, Sundberg and Mansfield JJ at [146] summarised the position by stating that s 223(1) 'envisages three possible native title "owning" entities -- the community (or "society") under whose laws and customs native title is possessed, a group or groups, and an individual or individuals' (Drury at [24]).
79 When all these observations are applied to the Determination in this matter, as reviewed above, it is relatively clear, in my view, that the "owning" entity (to borrow from Bodney) of the communal title in this instance is the Mandingalbay Yidinji-Gunggandji People. This is reinforced, if that were necessary, by the fact that there is no mention anywhere in the Determination of any groups of persons, or families, or of any individuals, holding any of the native title rights and interests concerned. Aside from the Determination, the only other evidence adduced by the GMY Prescribed Body Corporate on this primary issue is the statement in Mr Mundraby's affidavit that the Murray family does not have permission to occupy or remain on the Subject Land (see at [23] above).
80 It is necessary, next, to review the evidence adduced by the Murray family relating to this primary issue. Before doing so, it is important to observe that the Murray family appears to accept the analysis above (at [79]) concerning the "owning" entity, or native title holders of the Subject Land. That is so because, as already alluded to, they have claimed that their right to occupy and possess the Subject Land has been "carved out" of the communal title that was recognised by the Determination (see at [59] above). It follows that they appear to rely upon the first possibility described in Drury (at [21] set out at [77] above). That is, that the rights and interests they hold, as a family, to occupy the Subject Land, were allocated to them intramurally within the Mandingalbay Yidinji-Gunggandji People. It follows further that, if that intramural allocation was made to them, they are likely to have greater means of producing evidence of its existence and terms (see Worimi at [64] above). Indeed, as appears below, Mr Murray's evidence was largely directed to that question.
81 It is convenient to begin this review of the Murray family's evidence with Mr Murray's evidence about his family's relationship to the Subject Land (see at [21] above). First, at [13] of his affidavit, Mr Murray said he claimed "membership of the native title group for the [Subject Land], and the right to occupy that land", through his "many relations living at Yarrabah. Many of them are native title holders for the Yarrabah area". At [14], he identified his apical ancestor, from the list of such ancestors in Schedule 1 to the Determination, as Kutubi/Bertie Harris. Then, at [17]-[23], he described how various members of his extended family related to each other. He identified Granny Caroline and Uncle Hilary as being pivotal to those kin relationships.
82 Next, at [25]-[31] of his affidavit (see at [22] above), Mr Murray described how he and his family came to occupy the Subject Land. Significantly, he said at the outset (at [25]) that he knew "that [Yarrabah ASC] were granting leases to people who were Yarrabah born at that time". Nonetheless, he claimed (at [26]-[27]) to have obtained permission to build on the Subject Land from Mr Henry Miller and to occupy that land from Mr Andrew Miller and Mr Allanby Ambrum (sometimes spelled as "Ambrym"). While he described each of these persons as "elders", or "elders for the area", he did not provide any further information about them, nor, more importantly, their status (if any) within the Mandingalbay Yidinji-Gunggandji People. It is to be noted that they are not mentioned among the members of his extended family in [17]-[23] of his affidavit. Furthermore, while the Determination post-dated the Murray family's occupation of the Subject Land, and this is not a completely reliable guide, their surnames do not appear among the apical ancestors listed in Schedule 1 to the Determination. However, for what it is worth, it is to be noted that Mr Andrew Miller's name does appear in paragraph 1(f) of Schedule 3 (see at [19] above).
83 At [28] of his affidavit, Mr Murray also described his discussion with Mr Bobby Patterson concerning "burials in the area". He provided more information about Mr Patterson's status, describing him as "a Gunggandji elder". But then he recorded that Mr Patterson told him that "he didn't speak for that area because he is from King Beach which is a different part of Yarrabah". Otherwise the same observations as set out immediately above apply to Mr Patterson.
84 Notwithstanding the fact that he considered he had the "elders permission to occupy the land", Mr Murray said (at [29]) that he still wanted to obtain "a residential lease" for the land so that he had "certainty that no one else would take my block and the infrastructure (such as sheds, water tanks, a garden and horse paddock) once I built them". In the pursuit of that objective he described, in his affidavit, the three Expressions of Interest forms he submitted to the Yarrabah ASC. The first of those was submitted in 2009 (described at [24]-[28] above), the second in 2010 (described at [29]-[31] above) and the third in 2014 (described at [32]-[34] above).
85 A number of things is to be noted about those Expressions of Interest. First, I consider they represent a level of acceptance by Mr Murray that the elders' permission was not sufficient to give certainty to his family's occupation of the Subject Land. I say "a level of acceptance" because there is his evidence that he erected some sheds on the land soon after he submitted his 2009 Expression of Interest (see at [31] of his affidavit at [22] above) thus indicating some confidence in the effectiveness of the elders' permission. Secondly, there is the curious discrepancy between his desire to obtain a residential lease of the Subject Land (hence the 2009 Expression of Interest form), and the fact that the 2010 and 2014 forms are expressed to be for commercial purposes.
86 Thirdly, all three forms contained sections which described the applicant's obligations in respect of the application concerned (see at [27], [30] and [34] above). Common to all of those descriptions were notifications that the applicant may be required to negotiate an ILUA prior to obtaining a lease. In this respect, it is to be noted that an ILUA is a process ordained by the NTA and which may be used both before and after a Determination has been made in respect of an area of land and waters to reach agreement with the putative or actual native title holders about the use that may be made of that area consistent with the protection of any native title rights and interests that may, or do, exist in it. However, despite this notification, when he was ultimately offered a lease over the Subject Land by the Yarrabah ASC in 2015 on the condition that he obtain the consent of the GMY Prescribed Body Corporate, or negotiate a separate ILUA with it (see at [40] above), Mr Murray did not accept that offer. Moreover, in his affidavit, he proffered this explanation for that non-acceptance: "I did not seek that consent because by then, I had been chasing [Yarrabah ASC] for so long and wasn't getting any outcome. [Yarrabah ASC] had been sending me around in circles so I decided not to bother with seeking the [GMY Prescribed Body Corporate's] consent. I relied on the consent from the elders who can speak for country" (see at [37] of his affidavit set out at [41] above).
87 Then, notwithstanding having been offered a lease and not accepting that offer, he wrote to the Yarrabah ASC and the GMY Prescribed Body Corporate on 7 March 2018 and asserted among other things that: "We have been waiting to lease the Land. This has gone on for 10 years now. Still no word from anyone, except that 'you're looking into it' We would like to know how many more years it's going to take for the Board to let us know?" (error in original). Given the terms of this letter, the GMY Prescribed Body Corporate's response to it on 2 May 2018, giving Mr Murray 60 days to vacate the Subject Land, is not particularly surprising (see at [46] above).
88 Fourthly, and perhaps most importantly, between October 2014 and June 2018, Mr Murray had a series of communications with the Yarrabah ASC and, ultimately, the GMY Prescribed Body Corporate, in which he made a number of significant statements about his family's right to occupy the Subject Land. First, in his letter to the Yarrabah ASC dated 3 October 2014, he said, among other things that "We can also provide and prove our Family Tree and Grass Roots connection of this Yarrabah area, which we call the Granny Tilly Country" (see at [33] above). He made similar references to "Granny Tilly Country" in his letter to the Yarrabah ASC dated 7 April 2015 (see at [38] above) and his letter to the GMY Prescribed Body Corporate dated 27 June 2018 (see at [48] above). Despite these assertions, there is no mention of "Granny Tilly" anywhere in the body of Mr Murray's affidavit, including in those paragraphs where he describes his family's relationships to the Subject Land (see at [21] above). There, it is to be noted, he described a "Granny Caroline" as a pivotal relation (see at [81] above). Nor, apart from the fact it is located in the vicinity of Yarrabah, is there anything to explain what "Granny Tilly Country" is, or how it correlates to the determination area described in the Determination.
89 Next, in the following passages of his letter to the Yarrabah ASC dated 7 April 2015 (see at [38] above), Mr Murray also appears to rely upon: a different land claim to the one that led to the Determination (cf [13]-[14] above); to a different list of apical ancestors than that set out in the Determination (cf at [18] above); and to the laws and customs of a different group of Aboriginal People to those that comprise the native title holders under the Determination:
In relation to Mandingalbay Yidinji Native Title Claim (QG6015/98) that was submitted to the Federal Court, Rigsby's asserts that Lower Coastal Yidinji (Wanurr-Majay) people still have traditional rights and interests in all the three Yarrabah cluster applications including the Mandingalbay Yidinji claim #2.
Finally, as a respected elder being born in Yarrabah, I have demonstrated through my family history and cultural genealogy connection with my Apical Ancestors as outlined: 1) Njinggungara/Pannikin 2) Nellie Tobi/Pannican 3) Doranga and Tjanpumolo 4) Tilly Palmer 5) Minnie 6) Jack Baker 7) Lydia Murray 8) Larry Thompson/Larry Carney/Loui Waiangai.
Our Apical Ancestors lifestyle and practice of our culture covers an area from Russell River - Lower Russell River - Coffee Plantation - Lower Mulgrave - Russell Heads - Deeral - Bramston Beach - Palmers Point and then onto Yarrabah was based on total kinship with the natural environment. Wisdom and skills obtained over the millennia enabled them to use their environment to the maximum. Traditionally, the Wanyurr-Majay people practices such as killing animals for food or building a shelter were steeped in ritual and spirituality, and carried out in perfect balance with their surroundings. Through my Apical Ancestors I believe the continued practice of ceremonies and cultural activities give me the rights to speak for country throughout Yarrabah and surrounding areas. This demonstrate that I'm am no stranger to the community of Yarrabah Queensland.
(Emphasis added)
90 Finally, and in direct contradiction to the above, in his letter to the GMY Prescribed Body Corporate dated 27 June 2018 (see at [48] above), Mr Murray gave the following explanation for his right to be on the Subject Land: "We will not be vacating, as I have spoken with our Traditional Owners, Henry Miller, Andrew Miller and Family, who on the 29th April 2009 authorised the claim for this area. Through our and their family connections to Granny Tilly Palmer, who is one of our Ancestors" (errors in original).
91 From this review of the evidence adduced, with respect to the primary issue, by both the GMY Prescribed Body Corporate and the Murray family, I have come to the following conclusions, some of which reiterate what is already stated above. First, the GMY Prescribed Body Corporate has established that the title to the Determination area, including the Subject Land, is held communally by that community of Aboriginal People described as the Mandingalbay Yidinji-Gunggandji People.
92 Secondly, the GMY Prescribed Body Corporate has not, in its capacity as the duly appointed registered native title body corporate for those People, given permission to the Murray family to occupy and possess the Subject Land. Thirdly, while I accept that it is possible that the Murray family were allocated rights to occupy and possess the Subject Land intramurally within the Mandingalbay Yidinji-Gunggandji People without the knowledge of their agent, the GMY Prescribed Body Corporate, in the circumstances of this matter they are likely to possess greater means to produce evidence of that fact. Fourthly, however, I am not satisfied on the evidence they have adduced, as reviewed above, that such an intramural allocation did occur. Fifthly, and finally, having regard to these conclusions and weighing all the evidence according to the power of each party to produce it, I consider the GMY Prescribed Body Corporate has established, on the balance of probabilities, that the members of the Murray family have no rights to lawfully occupy and remain in possession of the Subject Land.