James Speed Company Pty Ltd v State of Queensland

CONSIDERATION 25 For the following reasons I am satisfied that the applicant has discharged its burden of establishing that its application ought to be allowed. 26 This application is unopposed. The only respondent to the proceeding, the State of Queensland, has filed a notice in accordance with s 86G(2) of the NT Act stating that the State does not oppose an order in, or consistent with, the terms sought by the applicant. In those circumstances, s 86G(1) is applicable. That section provides that the Court may make an order in respect of the application if: (a) the period specified in the notice given under s 66 has expired; (b) an order in, or consistent with, the terms sought by the applicant is within the power of the Court; and (c) it appears appropriate to make the order. 27 As to (a), the evidence establishes that the period specified in the notice given under s 66 ended on 4 August 2021, and therefore that period has expired. 28 As to (b), the evidence establishes the following matters. First, the application is for a determination that native title does not exist in a specified area (here, the Land), which is a determination of native title within the meaning of s 13(1)(a) of the NT Act. Second, there is no approved determination of native title in relation to the Land, as required by ss 13(1) and 61A(1) of the NT Act. Third, the applicant has an interest in the Land by reason of having a leasehold interest in it. The definition of "interest" in s 253 of the NT Act includes both proprietary and contractual rights, powers or privileges in respect of land: Byron Environment Centre Inc v Arakwal People [1997] FCA 797; 78 FCR 1 at pp 14 and 19 (Lockhart J); Kanak v Minister for Land and Waters [2000] FCA 1105; 106 FCR 31 at [28] and [34] (Madgwick J). Fourth, the Federal Court has jurisdiction in respect of the application by s 81 of the NT Act. Accordingly, the determination sought by the applicant is within the power of the Court. 29 As to (c), whether it is appropriate to make the order sought, the application is made on the basis that the evidence shows, on the balance of probabilities, that there is no native title that continues to exist in respect of the determination area. I am satisfied that this is demonstrated by reason of the following matters. 30 The non-claimant application was provided to the Tribunal, which then notified the applicant that the Registrar had provided a copy of the application and accompanying documents to the Queensland state government and also to the representative body for the area covered by the application. It was also advertised in the Longreach Leader and the Koori Mail. 31 No person has responded by claiming native title rights and interests over the Land, no entry appears in the Register and no one, including a representative body, has been joined as a respondent to assert the existence of native title over the Land. Had a representative body in the region had some knowledge or information about potential native title holders for the Land, the Court can reasonably expect that a representative body for the region to have come forward and provided that information to the Court (Mace at [94]). 32 Further, previous native title claims advanced that have concerned the Land were brought on behalf of the Bidjara People, but, as I have noted above, the Lawton and Bidjara #3 claims were withdrawn and discontinued respectively. The Court dismissed Bidjara claim #5 on 18 May 2007, on the basis that the applicants had failed to comply with procedural directions. The Court dismissed the Bidjara #6 and #7 claims on the basis that Wyman No 2 had conclusively determined that the Bidjara People's traditional system of law and custom had not continued in respect of the area the subject of those claims (see Wyman No 2 at [620]-[623] and [672]) with the consequence that the Bidjara #6 and #7 claims, which concerned the Land, were dismissed. 33 The additional relevance of the conclusions in Wyman No 2 and the Bidjara #6 and #7 claims to the present application is apparent from the following passages in Mace, to which the applicant drew attention in its submissions: 149 It is an agreed fact that the Mace land was not within the overlap area, so it is not in and of itself the subject of the findings in Wyman (No 2); otherwise, the land would already be subject to a negative determination. However, it is agreed between the parties that the Mace land was within the Bidjara #6 claim area. 150 Therefore, what is material for present purposes are the findings of the Court in Wyman (No 2) about lack of continuity, the fact that this lack of continuity was the basis for the negative determination, and that it was also the basis for the summary dismissal of the remainder of the Bidjara #6 proceeding (and the Bidjara #7 proceeding) as an abuse of process because (in effect) the Bidjara People could not overcome those findings even when different land and waters were involved. 151 A finding on a matter such as continuity of observance and adherence to traditional law and custom in the way rights and interests in land are created and passed on is a finding which, in most circumstances, will extend to subsequent claims by a claim group composed of essentially the same people. It is a finding which is not tied in any relevant sense to the particular land and waters involved, or to evidence about that land and waters. Rather, it is a finding about the lack of proof of a continued normative effect of the traditional law and custom which must, for the purposes of the NT Act, be what unites a group of people and provides the rules for the creation and acquisition of rights and interests in land and waters. This was the point made by Jagot and Mortimer JJ in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 at [141], referring to Wyman (No 2), in the context of a differently based argument about abuse of process. 152 The previous Bidjara proceedings, and in particular the outcome in the Bidjara #6 claim, are of considerable persuasive weight in the Mace applicant's case that no native title exists over the Mace land. There is no suggestion that any other group of people, other than the Bidjara People, claim to have native title rights and interests in the Mace land. Indeed, if that were to be suggested, it would be directly inconsistent with Ms Mailman's evidence on this application, and with the position put on behalf of QSNTS, which was directed only at the asserted interests of the Bidjara People in the Mace land. Ms Mailman's evidence, read with the previous Bidjara decisions, establishes, at the least, that the Bidjara People could have been considered the "right" people for the land covered by the Bidjara claims at sovereignty, or at effective sovereignty. However, this Court has found, after a fully contested trial, that those who now identify as Bidjara People do not possess rights and interests under traditional law and customs which give them a connection with the land and waters they identify as Bidjara country, because no body of traditional law and customs, as opposed to attenuated or transformed fragments of law and customs, has continued to the present day. Those findings were unanimously upheld on appeal, and were of sufficient strength to persuade the Court to make a negative determination in the overlap area. (Emphasis added) 34 It is important to emphasise that none of the above matters can be determinative of the application. The relevant question is whether, having regard to all of those facts, the Court should be satisfied there is no native title that continues to exist in respect of the determination area. 35 In the circumstances of this case, I am satisfied that the applicant has discharged its onus of establishing, on the balance of probabilities, that native title does not exist over the determination area and that it is appropriate to make the determination sought by the applicant. Although the evidence before me is relatively confined, I consider that it goes further than mere compliance with the procedural requirements of the NT Act (cf Mace at [166]). The cumulative weight of the evidence enables me to infer, from the absence of any native title claim in respect of the determination area at any time, that no native title continues to exist. There are no matters arising from the evidence in this case which would render it inappropriate to make a negative determination. 36 In conclusion, I am satisfied that: (a) the applicant holds a non-native title interest in the whole of the Land for the purposes of ss 61(1) and 253 of the NT Act; (b) the notices required by s 66 of the NT Act have been given; (c) there are no registered native title claims affecting the Land; (d) those registered native title claims that have previously existed were brought on behalf of the Bidjara People and have been withdrawn, discontinued or dismissed; (e) the Court has in Wyman No 2 found that the traditional system of law and custom of the Bidjara People has not continued. That finding led to the summary dismissal of the Bidjara #6 and #7 claims that covered the Land; (f) the findings in Wyman No 2 also provide a sound foundation to consider that no other native title claim will be advanced in relation to the Land (Mace at [149] - [152]); and (g) no other party has expressed an interest in claiming native title in relation to the Land.

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