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[2019] FCAFC 233
plaintiff. In each proceeding the Court determined and declared that native title does not exist in relation to the identified land and waters; QSNTS was joined as a party in the Mace proceeding; no order as...
Two landowners asked the Federal Court to rule officially that native title does not exist over their land so they could sell, lease or develop it. One was a Queensland pastoral family wanting freehold title; the other was a New South Wales Aboriginal Land Council wanting to use its land under state land rights laws. Native title representative bodies opposed the applications. The Court looked at the history of earlier native title claims over the same land that had failed because the claimants could not prove their traditional laws and customs had continued unbroken. There were also no new claims or objections after proper public notices. The judges decided the landowners had proved, on the balance of probabilities, that native title no longer existed. They emphasised that each case turns on its own evidence, that representative bodies should actively help the Court with information, and that once the Court is satisfied native title is gone it should usually make the order asked for.
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5 cited instruments linked from this judgment.
The Full Court (Jagot, Griffiths and Mortimer JJ) heard two non-claimant applications brought under s 61 of the Native Title Act 1993 (Cth) (NTA). The first, Mace v State of Queensland (QUD 31 of 2018), concerned a rolling term pastoral lease approximately 30 km north-west of Morven in Queensland. The four individual applicants were the registered lessees. They had applied to the Queensland Department of Natural Resources, Mines and Energy to convert the lease to freehold title. The Department required them to address native title either by obtaining a negative determination or by entering an indigenous land use agreement. The non-claimant application was filed on 31 January 2018. Notification under s 66 occurred in March 2018. No responses were received during the notification period. Queensland South Native Title Services Limited (QSNTS) was notified but did not seek joinder until October 2019, after the Chief Justice had referred the matter to a Full Court. QSNTS was joined under s 84(5) and read affidavits from its Principal Legal Officer and from Ms Keelen Mailman, a Bidjara woman and former named applicant in earlier Bidjara claims. The only other evidence was an agreed statement of facts admitted under s 191 of the Evidence Act 1995 (Cth).
The second proceeding, Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales (NSD 1852 of 2018), concerned 28 separate lots totalling more than 12 square kilometres within the Central Coast Council area of New South Wales. Twenty-four lots were already registered in the name of the applicant Local Aboriginal Land Council (LALC) under the Real Property Act 1900 (NSW). The remaining four were the subject of favourable land claim determinations under the Aboriginal Land Rights Act 1983 (NSW) (ALRA) but had not yet been transferred. Section 42(1) of the ALRA prevents an LALC from dealing with land vested in it subject to native title unless there has been an approved determination that native title does not exist. The non-claimant application was filed on 2 October 2018. Notification under s 66 ended on 27 February 2019. No claimant applications or joinders resulted. NTSCORP Limited, the native title representative body for New South Wales and the Australian Capital Territory, was joined by consent. It read an affidavit from its Principal Solicitor, Ms Mishka Holt, which disclosed that NTSCORP's notification database listed only the Darkinjung LALC itself as a potential native title holder in the area and that no anthropological report had yet been prepared for the locality. The parties again filed an agreed statement of facts.
Both matters were referred to the Full Court because uncertainty had arisen about the correct approach to non-claimant applications following Reeves J's decision in Pate v State of Queensland [2019] FCA 25. The proceedings were heard together on 11 November 2019. The Court received written and oral submissions from the non-claimant applicants, the respective State respondents, and the two representative bodies. On 19 December 2019 the Court published joint reasons determining in each proceeding that native title does not exist over the identified land and waters, joining QSNTS in the Mace proceeding, and making no order as to costs in either matter. A minor correction was later made to paragraph 161 concerning the date NTSCORP was notified.
The Court's central reasoning was that each non-claimant applicant had discharged the burden of proving on the balance of probabilities that native title did not exist. That conclusion was reached only after a close examination of all the evidence actually before the Court in each proceeding. The judges began by reaffirming the statutory framework. Section 225 defines a determination of native title as a determination "whether or not native title exists". A negative determination is therefore expressly authorised. The Court must set out the matters in s 225 if native title is found to exist, but if it does not exist the determination simply says so. The power is exercised under s 81 read with ss 94A and 225 once the procedural preconditions (notification, absence of an approved determination, etc) are met.
The judges emphasised at [44] that the legal question is identical whether the application is opposed or unopposed: has the applicant discharged its burden of proof? They rejected any gloss that an applicant need only establish a "prima facie" case or that respondents carry an evidential burden to rebut. Such language, drawn from personal injury or taxation contexts, was said to be inappropriate in native title litigation where determinations are in rem and bind the world. Instead the Court must weigh the probative strength of the evidence actually adduced. Direct evidence from an Indigenous witness asserting connection under traditional law and custom might prevent an applicant discharging the onus. Conversely, the absence of any such evidence, especially where a representative body has searched its records and found no one asserting native title, may allow the inference to be drawn.
In the Mace proceeding the decisive evidence was the history and outcome of the Bidjara claims. The Mace land lay within the external boundaries of three successive Bidjara claimant applications, including Bidjara #6. That claim had been the subject of a separate question hearing in Wyman (No 2) [2013] FCA 1229 in which the Court made detailed adverse findings about the continuity of Bidjara traditional laws and customs. The Court found that, although a distinct Bidjara society continued to identify as such, the normative system of traditional law and custom had not been maintained. Specific findings were made about loss of knowledge of boundaries, loss of the four-class section system, loss of men's and women's business, and the inability of contemporary witnesses (including Ms Mailman herself) to articulate the content of the traditional norms. Those findings were upheld on appeal. The balance of the Bidjara #6 claim was later summarily dismissed as an abuse of process in Wyman 2016 because the continuity findings could not be overcome on different land. The Full Court held at [151] that a finding about the lack of a continued normative system "is not tied in any relevant sense to the particular land and waters involved". Accordingly the earlier reasons supplied a sound basis for inferring that no native title existed over the Mace land. Ms Mailman's late affidavit, in which she said she was "sure" native title existed and that she was speaking with QSNTS about a new claim, was received but did not displace that inference. It contained no detail about how any new claim could overcome the earlier adverse findings or why the previous continuity conclusions should not apply. The absence of responses to notification, while not decisive by itself, added some weight once placed in the context of the Bidjara litigation history.
In the Darkinjung proceeding the Court placed substantial weight on the fact that a registered claimant application had been brought by the Awabakal and Guringai Peoples in 2013 over an area that included all 28 parcels. That claim passed the registration test, connection material was supplied to the State, and the State ultimately rejected it as insufficient. The claimant group, legally represented, then voluntarily discontinued the proceeding in June 2017 after Darkinjung's solicitor wrote expressly warning them that non-claimant applications were being filed and that native title might be lost if the claimant application was not pursued. No objection was made to the discontinuance. In the years that followed, four earlier non-claimant applications by Darkinjung over land within the same external boundary had proceeded without any assertion of native title. NTSCORP's evidence that its database listed only the Darkinjung LALC itself, that no anthropological report had been prepared, and that it could identify no person or group asserting native title, was accepted as reinforcing the inference that no native title was currently claimed. The Court rejected NTSCORP's submission that a non-claimant applicant must always adduce evidence from local Aboriginal people about cultural significance. That would convert the statutory scheme into a mandatory positive inquiry inconsistent with the notification and joinder provisions. The combination of the discontinued claim, express notice, absence of any subsequent assertion, and the representative body's own records was sufficient to discharge the burden.
In both matters the Court also considered whether, even if the burden was discharged, it would be inappropriate to make a negative determination. It accepted that such a discretion exists but held that the circumstances did not engage it. The representative bodies had been given a full opportunity to be heard, the evidence had been tested, and the protective objects of the NTA are not engaged where the Court is satisfied on the evidence that there is no native title left to protect.
Before Mace the law was primarily shaped by the Full Court's decision in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 and the majority reasons in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466. Worimi established that the burden lies on the non-claimant applicant to prove absence of native title on the balance of probabilities and that each case turns on its own facts. It warned against any "roving inquiry" and made clear that the absence of responses to notification could support an inference of no native title but was not automatically sufficient. Badimia confirmed that a negative determination is authorised by s 225, that it binds the world, and that heightened scrutiny is required but the civil standard of proof is not altered. The majority also explained that the protective objects of the NTA are not infringed by a negative determination once the Court is satisfied on the evidence that there is nothing left to protect.
Reeves J's decision in Pate introduced uncertainty. His Honour dismissed an unopposed non-claimant application, emphasising s 24FA future act protections and suggesting that a negative determination might be inconsistent with the objects of the Act. He also appeared to require more than "formal" compliance with notification and to impose a heightened evidentiary burden in unopposed cases. The Mace Full Court held that the critical passages in Pate were obiter, that they were not supported by detailed submissions, and that they should be confined to the particular evidentiary deficiencies in that case. The Court reaffirmed that the burden and standard remain the same in opposed and unopposed applications and that s 24FA does not preclude a negative determination.
After Mace the law is clearer. The decision confirms that representative bodies are expected to perform an active role in non-claimant applications. It illustrates that detailed adverse findings on continuity in one part of a claim group's country can found a negative determination over other parts of the same group's country. It rejects any prescriptive checklist or mandatory requirement to call Indigenous witnesses in every case. The decision also emphasises that funding constraints on representative bodies do not, without more, prevent a court from being satisfied that native title does not exist. Subsequent single-judge decisions have treated Mace as settling the correct approach, citing it for the propositions that the inquiry is intensely factual, that prior judicial findings on continuity carry significant weight, and that the Court acts only on the evidence before it rather than speculating about possible future claims.
At [44] the Court stated: "The question for the Court remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area?" In plain English, the judges were saying that the legal test does not change just because someone turns up to oppose the application. The landowner must still prove native title is gone, but the opponent can make the proof harder by bringing evidence or arguments.
At [53], quoting the Badimia majority: "the only circumstance with which we are dealing is a failed claimant application in which, because of the way in which the hearing was conducted, the Court might be satisfied on a proper basis that native title does not exist at all in relation to the land. In other words, it is a necessary (but by no means sufficient) pre-condition to the exercise of the power to make a negative determination that the Court be satisfied that there is no native title to protect or recognise." Translation: the NTA exists to protect native title, but if the evidence shows there is none left to protect, making a negative determination does not undermine the Act; it simply records the factual position.
At [66]: "This fact warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. But the onus remains the civil standard of the balance of probabilities." Plain English: because a negative determination wipes out native title forever for everyone, judges must look very carefully at the evidence. But they still use the normal civil standard; they do not require proof beyond reasonable doubt.
At [95]: "As part of a representative body's functions, there should be some level of active, and proactive, engagement with a non-claimant application, notice of which is required to be given to the representative body." Translation: native title service providers cannot sit back and do nothing when they receive notice of a non-claimant application. They are expected to investigate, provide information to the Court, and help anyone who might have a claim to come forward.
At [151], referring to the Bidjara findings: "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." In plain English, once a court has decided after a full trial that a group's traditional law and custom has broken down, that finding usually applies to the whole of their country, not just the exact area litigated. A new claim over different parcels is unlikely to succeed.
Mace is most obviously triggered when a non-claimant applicant can point to a prior fully contested claimant application that failed on continuity grounds and that covered or overlapped the land in question. The precedent is engaged whenever there has been a registered claimant application that was discontinued after the non-claimant applicant gave express notice of its intention to seek a negative determination. It applies to both pastoral lessees seeking freehold conversion in Queensland and Local Aboriginal Land Councils in New South Wales seeking to deal with land under s 42 of the ALRA. The decision is relevant whenever a representative body opposes a non-claimant application but can point only to past claims that have been resolved adversely or abandoned, or can produce no database entries of persons asserting native title. It is engaged where the only evidence opposing the application is a late affidavit from an individual Indigenous person expressing a sincere but unsubstantiated belief that native title exists, without addressing earlier judicial findings that the normative system has not continued. Conversely, the decision warns that a bare absence of responses to newspaper notifications will rarely be sufficient by itself if there is a recent registered claim or if the representative body has done no research. The fact pattern that most clearly attracts the Mace reasoning is one in which the evidentiary picture includes (a) prior judicial findings on lack of continuity, (b) representative body evidence that it holds no records of current assertions, and (c) an absence of any contradictor who can articulate how a new claim could overcome the earlier adverse findings.
Subsequent decisions have treated Mace as authoritative on the approach to non-claimant applications. Single judges have cited it for the proposition that the burden remains on the non-claimant applicant in both opposed and unopposed matters and that the assessment is always fact-specific. In later Darkinjung non-claimant applications the Court has relied on Mace to give significant weight to NTSCORP's evidence that its database contains no persons asserting native title in the relevant area. QSNTS has been joined in several Queensland matters and has adduced evidence of past claims, but where those claims have been dismissed on continuity grounds courts have followed Mace in concluding that the non-claimant applicant has discharged the onus. The decision has been cited with approval for the proposition that findings on continuity are not land-specific and can found negative determinations over other parcels claimed by the same group. Later Full Courts have not doubted Mace; it is now routinely included in tables of authorities in native title directions hearings when non-claimant applications are listed. Representative bodies have adjusted their practice by ensuring earlier engagement with non-claimant applications and by placing on record what research, if any, has been undertaken. No court has treated the obiter criticisms of Pate as binding, but the clarification that Pate turned on its own evidentiary deficiencies has been accepted. Overall, Mace has restored certainty and has been followed, not distinguished or doubted, in every reported non-claimant matter since delivery.
Several narrower questions remain unresolved. First, the precise weight to be given to notification by social media rather than newspapers was flagged at [92] but not decided; future cases may test whether the NTA's newspaper-based notification regime remains adequate in 2024. Second, the Court left open whether there could ever be a case in which the burden is discharged yet it would be inappropriate to make a negative determination; only "rare" examples were contemplated. The boundaries of that residual discretion are not yet mapped. Third, the interaction between a negative determination and compensation rights under s 24FA was discussed in the context of Pate but not finally resolved; a future claimant who emerges after a negative determination may test whether compensation is still available. Fourth, the extent to which a representative body can rely on funding constraints to explain a complete absence of evidence remains open; Mace says it is not a satisfactory explanation "in and of itself", but a case in which genuine attempts at research have been thwarted by chronic under-funding might produce a different outcome. Finally, the decision assumes that findings on continuity in one part of country automatically travel to other parts, but a future claim group that can demonstrate it is differently constituted or relies on different laws and customs might seek to distinguish Mace. These questions will be answered only when new factual matrices reach the Court. Until then, Mace stands as the leading statement on how non-claimant applications are to be determined.
te of Queensland (No 3) [2014] FCA 8 Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93 Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; 235 FCR 464 Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777
Date of hearing: 11 November 2019
Date of last submissions: 15 November 2019
Registry: Queensland
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 183
Counsel for the Applicant in QUD31/2018: Mr G Del Villar
Solicitor for the Applicant in QUD31/2018: Thynne & Macartney
Counsel for the Applicant in NSD1852/2018: Mr M Wright SC
Solicitor for the Applicant in NSD1852/2018: Chalk & Behrendt Lawyers and Consultants
Counsel for the First Respondent in QUD31/2018: Ms E J Longbottom
Solicitor for the First Respondent in QUD31/2018: Crown Law
Counsel for the First Respondent in NSD1852/2018: Ms R Graycar
Solicitor for the First Respondent in NSD1852/2018: Crown Solicitor's Office
Counsel for the Joinder Applicant in QUD31/2018: Ms T L Jowett
Solicitor for the Joinder Applicant in QUD31/2018: Queensland South Native Title Services Limited
Counsel for the Second Respondent in NSD1852/2018: Ms T L Jowett
Solicitor for the Second Respondent in NSD1852/2018: NTSCORP Limited
8 January 2020 In paragraph 161, the following words have been added to the end of the first sentence: "(but in fact NTSCORP had been notified of the application as required on 8 October 2018)".
BETWEEN: HARLEY WILLIAM MACE First Applicant
NICOLETTE ANN CAMERON Third Applicant PATRICIA CATHERINE CAMERON Fourth Applicant
JUDGES: JAGOT, GRIFFITHS AND MORTIMER JJ DATE OF ORDER: 19 December 2019
THE COURT DETERMINES AND DECLARES THAT:
AND: ATTORNEY GENERAL OF NEW SOUTH WALES First Respondent
JUDGES: JAGOT, GRIFFITHS AND MORTIMER JJ DATE OF ORDER: 19 December 2019
THE COURT DETERMINES AND DECLARES THAT:
THE COURT: 1 These are our reasons for judgment in two non-claimant applications filed pursuant to s 61 of the Native Title Act 1993 (Cth): Harley William Mace & Ors v State of Queensland (QUD31/2018) and Darkinjung Local Aboriginal Land Council #5 v Attorney-General of New South Wales (NSD1852/2018). The Mace proceeding relates to land and waters in Queensland, and the Darkinjung proceeding relates to land and waters in New South Wales. 2 On 30 July 2019, the Chief Justice made a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) referring each of the matters to a Full Court, sitting in the Court's original jurisdiction. The Chief Justice stated that the matters were of sufficient importance to justify the giving of the direction. This was because some uncertainty had emerged about the correct approach to be taken in this Court to non-claimant applications. 3 The proceedings were heard together, and all parties (including the applicant for joinder in the Mace proceeding, Queensland South Native Title Services Limited (QSNTS)) agreed that the Court was seized of the whole matter in each proceeding, and should make substantive orders on the two non-claimant applications. 4 Except for the evidence of Keelen Mailman in the Mace proceeding, to which we refer below, there was no evidence in either proceeding about the existence and nature of any claimed native title rights and interests in either of the respective application areas. It was the absence of evidence about these matters (whether tending to support or contradict the non-claimant applications) which in substance illustrated the dividing line between the submissions of the Mace and Darkinjung applicants, the Attorney-General of New South Wales and the State of Queensland on the one hand; and the submissions of NTSCORP and QSNTS on the other. 5 For the reasons set out below, a determination should be made in each proceeding that no native title exists over the land and waters which are the subject of each application.
Brief background to each application 6 In each case, the parties filed an agreed statement of facts, which was admitted into evidence pursuant to s 191 of the Evidence Act 1995 (Cth).
The Darkinjung application 7 The Darkinjung application was filed on 2 October 2018, and seeks a determination over 28 separate lots of land, totalling more than 12 square kilometres, within the Central Coast Council Local Government Area of New South Wales. All the parcels of land are within the Darkinjung Local Aboriginal Land Council area. The applicant is the registered proprietor of 24 of the parcels for the purposes of the Real Property Act 1900 (NSW), in its capacity as a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The remaining four parcels are yet to be transferred to Darkinjung, however the Crown Lands Minister has determined the relevant claims for land in those parcels in Darkinjung's favour. The applicant's principal written submissions noted that on the Form 2 filed with the non-claimant application, there were some incorrect descriptions of the local areas in which some of the lots are situated, although all the lot numbers and deposited plan identifiers remain correct. These differences do not affect the terms of the determination to be made, which will be by reference to lot number and deposited plan number. 8 As with almost every application in New South Wales on behalf of a Local Aboriginal Land Council, the reason for the Darkinjung application lies in the terms of the ALRA. Section 42 of the ALRA provides: 42 Restrictions on dealing with land subject to native title (1) An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act). (2) This section does not apply to or in respect of: (a) the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the NPW Act under Part 4A of that Act in accordance with a condition imposed under section 36A (2), or (b) a transfer of land to another Aboriginal Land Council, or (c) a lease of land referred to in section 37 (3) (b). 9 The phrase "deal with land" is defined in s 40(1) of the ALRA, in broad terms: In this Division and Division 4A: … deal with land means: (a) sell, exchange, lease, mortgage, dispose of, or otherwise create or pass a legal or equitable interest in, land, or (b) grant an easement or covenant over land or release an easement or covenant benefiting land, or (c) enter into a biobanking agreement relating to land under the Threatened Species Conservation Act 1995 or a conservation agreement under the NPW Act, or (d) enter into a wilderness protection agreement relating to land under the Wilderness Act 1987, or (e) enter into a property vegetation plan under the Native Vegetation Act 2003, or (f) subdivide or consolidate land so as to affect, or consent to a plan of subdivision or consolidation of land that affects, the interests of an Aboriginal Land Council in that land, or (g) make a development application in relation to land, or (h) any other action (including executing an instrument) relating to land that is prescribed by the regulations. Note. In this Act, a reference to land includes any estate or interest in land, whether legal or equitable (see section 4 (1)). 10 It is also important to note the effect of s 36(9) of the ALRA: Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. 11 It is agreed on this application that by reason of s 42(1) of the ALRA, Darkinjung is unable to "deal with" the 28 parcels of land within the meaning of subs 40(1) of the ALRA unless and until there has been an approved determination of native title under the NT Act made in relation to them. A similar assumption, in relation to a predecessor provision to s 42(1) of the ALRA, was made by the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 at [9]. 12 Darkinjung's functions are set out in s 52 of the ALRA. They include the acquisition, use and management of land, and protection of Aboriginal culture and heritage. Darkinjung's objects include the improvement, promotion and fostering of the best interests of all Aboriginal persons within its area. However, how an applicant proposes to deal with land which is the subject of a non-claimant application need not be the subject of evidence: see Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 at [8]. Therefore, although Darkinjung's objects, and functions, might be seen as generally beneficial towards Aboriginal people living in or having an association with the area for which it is responsible, the Court's approach to whether it has discharged its burden of proof on this non-claimant application that no native title exists in the 28 parcels of land is the same as that taken in relation to any other applicant. 13 The applicant read the affidavit of James Konrad Walkley, affirmed on 5 April 2019, in support of its application. Mr Walkley is the legal representative of Darkinjung in this proceeding. 14 NTSCORP read the affidavit of Mishka Jade Holt, affirmed on 14 May 2019. Ms Holt is the Principal Solicitor at NTSCORP. 15 The notification period for this non-claimant application under s 66 of the NT Act ended on 27 February 2019. Mr Walkley's affidavit and the annexures to it deposed to the public notices which were given about the non-claimant application, and where they were published. In this proceeding, there was no argument about the adequacy of the notifications themselves. 16 The only respondents to Darkinjung's non-claimant application are the Attorney-General of New South Wales, and NTSCORP, the native title services provider for New South Wales and the Australian Capital Territory, which is funded pursuant to s 203FE(1) of the NT Act to perform the functions of a native title representative body in those regions. NTSCORP was joined as a party to the proceeding by consent on 20 March 2019. No other person sought to be joined as a party as a result of the notification process. 17 In his affidavit evidence, Mr Walkley described the other steps taken by the applicant to ascertain whether any person had, or claimed to have, native title over the land and waters which are the subject of the Darkinjung application, and we return to that evidence below.
The Mace application 18 The applicant in this proceeding comprises four individuals: Harley William Mace, Andrew Donald Cameron, Nicolette Ann Cameron and Patricia Catherine Cameron. They are, as tenants in common, the registered lessees of the land which is the subject of the non-claimant application. The land is located about 30 km north-west of Morven in Queensland. The lease was initially granted for a term of 19 years commencing on 1 July 1977 and expiring on 30 June 1996, but it was extended to 30 June 2035. It is what is known as a "rolling term lease". 19 As with the Darkinjung application, the application in Mace represents a common form of non-claimant application. That is because of a particular requirement imposed by the State of Queensland in order to convert leased land to freehold title. 20 In August 2015, the members of the applicant, as the lessees, applied to the Queensland Department of Natural Resources, Mines and Energy (DNRME) to convert the lease over the land to freehold title. DNRME informed them that subject to compliance with certain conditions, the State would progress converting the lease over the land to freehold title. Relevantly, one condition was that the lessees address native title in accordance with the NT Act either by way of an application for a determination that native title does not exist or an indigenous land use agreement. 21 The non-claimant application was filed on 31 January 2018. At some time prior to 5 February 2018, a copy of the application was provided by the National Native Title Tribunal (NNTT) to the State, and to QSNTS. The provision of the application to QSNTS assumes some significance in the applicant's submissions, and in the joinder application by QSNTS, and we return to it below. 22 The NNTT publicly notified the non-claimant application on 21 March 2018, in the Toowoomba Chronicle and the Koori Mail. The notice specified a notification day of 4 April 2018 and identified the notification period as ending on 3 July 2018. There were no responses received during the notification period, and no person otherwise sought to be joined as a party to the non-claimant application. 23 Although affidavit evidence had been filed by the applicant, it was not read. The only evidence relied upon by the applicant in support of the non-claimant application was the agreed statement of facts filed by the parties on 30 July 2019. The State of Queensland did not separately rely on any evidence. 24 QSNTS read an affidavit of Timothy John Wishart, the Principal Legal Officer of QSNTS, affirmed on 30 October 2019. QSNTS also read an affidavit of Keelen Mailman affirmed on 7 November 2019, in which Ms Mailman identified herself as "a former native title claimant on the various claims filed on behalf of the Bidjara People and…a member of the Applicant for the Bidjara #6 and Bidjara #7 native title determination applications". There were objections to Ms Mailman's affidavit in its entirety and to an aspect of Mr Wishart's affidavit. The objection to Mr Wishart's affidavit was overruled. The Court reserved its position on the objection to Ms Mailman's affidavit, and we make a ruling on that objection at [103]-[113] below.
The QSNTS joinder application in Mace 25 By an interlocutory application filed on 10 October 2019, QSNTS sought to be joined as a respondent to the proceeding, to oppose the relief sought by the Mace applicant in the non-claimant application. 26 QSNTS read an affidavit of Timothy John Wishart affirmed on 9 October 2019, in support of the joinder application. At [8] of that affidavit, Mr Wishart deposed that if joined as a party to the proceeding, QSNTS would be able to "make submissions in relation to the non-claimant application to protect the interests of those who may hold native title in the land and waters subject of the Mace non-claimant application". He also deposed at [6] that: … any negative determination of native title in the proceedings would be inconsistent with one of the main objects and purposes of the NTA being the preservation and protection of native title. There are concerns that without QSNTS joining as a party there would be a possibility that this application would be an unopposed and uncontested application. 27 The joinder application was opposed by the applicant, but not by the State. The applicant contended, first, that the joinder application was filed too late in the proceeding, and second, that there would be prejudice caused to the parties and the Court if QSNTS was joined. 28 As to the delay in seeking joinder, the applicant submitted there was no adequate explanation for QSNTS's delay in seeking joinder, and none given in Mr Wishart's affidavit material. It contended QSNTS was notified of the non-claimant application in March 2018, but that it was only around 15 months later that it sought to be joined as a respondent. As to the submission that there would be prejudice if QSNTS was joined, the applicant emphasised that the existing parties had prepared an agreed statement of facts, upon which the application could be considered by the Court, and QSNTS sought to adduce evidence beyond those agreed facts. The applicant also submitted that there was prejudice because the application could not be decided under s 86G of the NT Act if QSNTS was joined, as it would no longer be unopposed. 29 QSNTS contended that it did not seek joinder during the notification period because until Reeves J's decision in Pate v State of Queensland [2019] FCA 25, and in particular his Honour's observations at [59], it was "not clear" that a representative body such as QSNTS had any role to play in providing assistance to the Court on a non-claimant application in relation to any extant or previous native title determination application. The applicant contended that explanation did not explain the delay, as Pate was decided in January 2019, some nine months before the joinder application.
Resolution of the joinder application 30 We accept that the delay in filing the joinder application cannot be explained simply on the basis of Reeves J's decision in Pate. In our opinion, it is tolerably clear that once QSNTS learned the two applications were being referred to a bench of three judges, it sought to join as a party to the proceedings. It may well be that the joinder remained motivated by what Reeves J said in Pate, and it is clear from Mr Wishart's affidavit that QSNTS sees itself as having a role in non-claimant applications which is substantially protective of native title rights and interests, including any inchoate rights and interests. However, it must be observed that there is no satisfactory explanation in Mr Wishart's affidavit for QSNTS's delay in applying to be joined, as between the Chief Justice's referral on 30 July 2019, and QSNTS's joinder application in October 2019. 31 Notwithstanding the lateness of the joinder application, QSNTS should be joined as a party to the proceeding. In other circumstances, the lateness of the application may well have resulted in a refusal of the joinder. However, these proceedings were referred to a bench of three judges so as to clarify the correct approach to non-claimant applications. The Court will be assisted by hearing, in each application, the views of the representative body for the region in which the non-claimant application land and waters are located. That is a perspective the Court should have. As other parts of these reasons indicate, representative bodies have a particular responsibility in relation to non-claimant applications. 32 We do not accept the applicant's submission that there is any particular prejudice to it or to the State, let alone to the Court. To the contrary, the Court will be assisted by the submissions of QSNTS. The applicant has had a full opportunity to respond to the submissions of QSNTS, both in writing and in oral argument. Aside from the issues it contended arose from the attempted reliance on the evidence of Keelen Mailman (which we deal with below), it did not seek to adduce any further evidence in response to Mr Wishart's evidence.
The legislative framework and the established approach in this Court to non-claimant applications 33 By s 13(1) of the NT Act, an application may be made to this 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 are set out in s 61(1). Relevantly, and aside from applications by Ministers of the Crown, in s 61(1) there are two categories specified: (a) a person or persons relevantly authorised by a native title claim group who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed; or (b) a person who holds a "non-native title interest" in relation to the whole of the area in relation to which the determination is sought. 34 Section 253 defines the word "interest", in relation to land or waters, to mean, relevantly, "a legal or equitable estate or interest in the land or waters". 35 The NT Act then defines these two categories of application as "claimant applications" and "non-claimant applications": see s 253. 36 The Native Title Registrar must be given a copy of either kind of application filed under s 61, and any accompanying affidavit or prescribed documents, pursuant to s 63 of the NT Act. Thereafter, the Native Title Registrar is to take the notification steps set out in s 66 of the NT Act. Subject to the precondition imposed for claimant applications that there must be a registration decision made by the Registrar under s 190A (see s 66(6)), the notification process is substantively the same for the two categories of application. One, relevantly minor, point of difference is that s 66(10) expressly specifies a statement to be included in any notices to be published under s 66(3)(a) or (d), and the content of that statement differs as between claimant and non-claimant applications. 37 Section 66(3) requires notice of the application to be given to a wide range of persons including, relevantly, Commonwealth, State and Territory Ministers, any registered native title claimant or registered native title body corporate in relation to the claim area, and "any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application". 38 Unlike unopposed claimant and non-claimant applications, for which s 86G expressly provides, and agreed outcomes for claimant (and probably also non-claimant) applications, for which s 87 expressly provides, somewhat curiously, there are no specific provisions in the NT Act relating to the determination of contested claimant and non-claimant applications. Rather, the terms of s 94A, read with ss 55 and 225, are the only express provisions governing how contested determinations are to be made. 39 Section 55 deals with the necessity to exercise powers under ss 56 and 57, where a determination is made that native title exists. Section 94A requires a determination made by the Court to set out details of the matters mentioned in s 225. The phrase "determination of native title" is a statutory phrase, and its meaning is to be ascertained by reference to s 225 itself. Section 225 provides: 225 Determination of native title 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. 40 Section 225 serves two functions. First, it defines what a "determination of native title" is, and does so by the use of the phrase "whether or not native title exists". Section 225 authorises a determination that native title exists, and it also authorises a determination that native title does not exist. Second, subss (a)-(e) of s 225 then prescribe the mandatory contents of any determination that native title exists. 41 That the two kinds of determination are two sides of the same coin, so to speak, was decided in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466: see the majority reasons at [14], [40]-[41], [44], [53], [55] and [59]. At [60], the majority pointed out that: … the possibility of a negative determination is inherent within every native title determination application, be it a claimant application or a non-claimant application. 42 Non-claimant applications are made with more regularity in New South Wales and Queensland, for the reasons we have outlined at [8]-[11] and [19] above. They are less common in the other States and Territories. Nevertheless, it is not the reason for a non-claimant application which governs the Court's approach to the exercise of power. The Court's approach must be one that, in principle, is capable of applying to all non-claimant applications, wherever they are filed, and in respect of any land and waters in Australia. The provisions of the NT Act apply nationally, and not by reference to particular circumstances in any given State or Territory which might prompt a non-claimant application. 43 Although ultimately the two applications presently before the Court are not to be determined under s 86G, the same kinds of matters will need to be established by an applicant in a contested application as in an application to which s 86G applies. The difference, obviously, is that there may be a contradictor - either by way of submissions or evidence, or both - and so the applicant may face more challenges to its own submissions or evidence, or both, and may need to meet what is adduced, or what is contended, by the contradictor. 44 That is a forensic difference, but not a legal one. The question for the Court remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area? 45 Although there were differences in emphasis, all parties accepted the authority of the Full Court's decision in Worimi, and the majority reasons in Badimia. No challenges were made to the correctness of those decisions, although NTSCORP sought to draw some support from Reeves J's separate reasons in Badimia. It did not, however, submit that Badimia was wrongly decided. 46 We consider there is a clearly established approach set out in those authorities. It is as follows. 47 The overriding proposition, emphasised by the Full Court in Worimi at [58], is that each case must be assessed on its own particular facts. 48 The Court's assessment will depend on those particular facts, on the nature of the land and the tenure involved, on the presence or absence of any present or previous native title claims and the nature and content of those claims, and on any particular evidence adduced on behalf of an applicant, and on behalf of any respondents. 49 In some cases, and at one end of the evidentiary scale, as the Full Court in Worimi observed at [58] and [59], there may be no need to go beyond proof of an extinguishing grant of freehold title. 50 That the Court's assessment concerns the particular evidence adduced on any particular non-claimant application, and consideration of whether, on that evidence, the applicant has discharged its burden of proof, is illustrated by what the Full Court said in Worimi at [64]: It is commonsense then that Worimi should have been expected to adduce evidence about those claimed rights and interests. Otherwise, the evidence of the Land Council would have stood uncontradicted. The evidence of Worimi, if accepted, may have made it very difficult for the Land Council to discharge its onus of proof. It was consistent with that practical position that, as a condition of the joinder, Worimi was required to give to the Land Council notice of what he asserted to be those native title rights and interests and of the evidence he might choose to adduce to show their existence. As her Honour observed at [47], if Worimi gave evidence which was accepted, that evidence may at least have cast doubt on the Land Council's case. If he did not give evidence, the point of him becoming a party to the proceeding would have largely been dissipated. 51 These basic propositions may have been obscured at times in the arguments of the representative bodies in these two proceedings. Where the Court has a non-claimant application before it, the Court will act on the evidence adduced in that application. It is the probative strength of the evidence adduced which will be weighed and assessed. Direct evidence from an Indigenous respondent about that person's connection, under traditional law and custom, to the land in question may be sufficient to mean that an applicant in a non-claimant application may not discharge her or his burden of proof. Sometimes, direct evidence from an Indigenous respondent may be insufficient: it may contradict previous decisions about claims over the area; it may not be accepted; it may go to original connection but not continuity. The possibilities are many and varied. However, where there is no direct, or even indirect evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which could "cast doubt" on the case brought by the applicant in the non-claimant application that no native title exists. 52 Just as on a claimant application, the Court cannot be asked to decide a non-claimant application by a process of speculation as to what native title rights and interests might or might not exist in the land in question. The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant. 53 There is no violence done to the protective purpose of the NT Act through adoption of this approach, contrary to the submissions of the representative bodies. The majority in Badimia at [62] explained why this is so: Against this, the appellant appeared to contend that the statutory purpose - that native title be recognised and protected (s 3(a)) - would be promoted by its construction. Yet this overlooks that the only circumstance with which we are dealing is a failed claimant application in which, because of the way in which the hearing was conducted, the Court might be satisfied on a proper basis that native title does not exist at all in relation to the land. In other words, it is a necessary (but by no means sufficient) pre-condition to the exercise of the power to make a negative determination that the Court be satisfied that there is no native title to protect or recognise. (Emphasis added.) 54 No statutory process can protect against every injustice, nor guarantee an outcome that cannot be criticised. However, there is no standard of perfection involved: the NT Act is structured around the making of claims, the protection of interests while those claims are decided, the making of determinations whether or not native title exists, and if it is determined to exist, the working out of what kinds of protection are then afforded to common law holders of native title. All this is to be done according to the usual standard of proof in civil litigation - proof on the balance of probabilities. Either an applicant meets this standard or it does not, but postponement or dismissal of a non-claimant application on the suggestion that other interests might emerge at some unspecified time in the future is not the kind of process contemplated by the NT Act. 55 In understanding the nature and content of the burden of proof on an applicant in a non-claimant application, it is helpful to understand what is not involved. 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 effective sovereignty; nor any general inquiry into how those rights and interests may or may not have continued. In Worimi at [56], the Full Court said: The approach contended for by Worimi would involve a "roving inquiry" into whether any person, and if so who, held any, and if so what, native title rights and interests in the land and waters at settlement, and chronologically to the time of the application. Such approach is of the kind expressly rejected by the Full Court in Jango v Northern Territory (2007) 159 FCR 531 (Jango) at [84]. There may be a number of reasons why, at or by a particular time, no native title rights or interests exist in relation to particular land. 56 While the possibility of injustice can never be entirely excluded, the provisions of the NT Act are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a determination of native title with respect to that area of land: see Badimia at [59] and [75]. That said, in the context of the NT Act, and the well-established challenges for Indigenous people in bringing and maintaining claims for native title, in our respectful opinion, it is not necessary to employ evidentiary or adversarial presumptions which may have been developed by the common law in quite a different context. 57 Although there are a number of decisions (including Worimi at [71]) which refer to the application of the maxim in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 970 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", some care must be taken in the application of a maxim such as this in native title cases. Litigants asserting native title may experience a number of disadvantages which may affect their "power" to produce evidence of the kind to which the maxim applies. Such maxims cannot effect, by the back door, any alteration to the onus of proof on a non-claimant application. The better approach is to focus on what the evidence before the Court does establish - whether for or against the determination sought by the non-claimant applicant - and to give appropriate weight to aspects of the statutory scheme which are designed to have people bring forward all claims to native title over an area. Further, it will not always be the case that an applicant in a non-claimant application is without knowledge, or access to resources, about claims to native title over the area in issue. A Local Aboriginal Land Council, or a long-term occupier of the land in question, may be well-placed to know about such claims: all will depend on the circumstances. 58 In Worimi at [71], the cases cited in support of the maxim from Blatch v Archer having a "particular resonance" in such circumstances were Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 at 565 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 167-168 and 171. 59 It is worthwhile reproducing the entirety of Hunt J's reasoning in Apollo Shower Screens at 565-566, so that the very different context in which his Honour made his remarks can be appreciated: What the plaintiffs have to prove in the present proceedings is really in the nature of a negative proposition: that the class of work which includes the installation of prefabricated shower screens is not usually performed by a carpenter. The onus in these proceedings lies on the plaintiffs to prove the negative. The burden of proof required to satisfy such an onus is not usually difficult to discharge, particularly where (as in the present case) the other party has the greater means to produce evidence which contradicts the negative proposition for which the onus-carrying party contends. If there was one thing which was made abundantly clear in the evidence in the present case, it was that the defendant had available to it in its dispute with the plaintiffs the not inconsiderable resources of the Building Workers Industrial Union of Australia, New South Wales Branch. Were these proceedings a prosecution by the defendant of the plaintiffs for failing to lodge returns (as were the proceedings which led to the decision of Cross J in Builders Licensing Board v Pride Constructions Pty Ltd) the onus would be on the corporation to establish that the class of work which includes the installation of shower screens was usually performed by a carpenter. It is easy to imagine how the corporation would have gone about seeking to establish its case with the assistance of the BWIU, an assistance which the plaintiffs clearly do not have in the present case. That is what I mean when I say that the defendant in the present case has the greater means to produce evidence which contradicts the negative proposition for which the plaintiffs contend. In other words, provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof: cf Purkess v Crittenden (1965) 114 CLR 164 at 167-168, 171. The position is somewhat akin to the evidential burden placed upon an accused in a criminal trial who seeks to raise the issue of self-defence which the Crown must disprove: the authorities are collected, and one is quoted, in Spautz v Williams [1983] 2 NSWLR 506 at 532-533. It is also somewhat akin to the evidential burden placed upon the Commissioner of Taxation in an appeal against his assessment of taxation (in which the taxpayer bears the onus of proof) to raise a particular matter in evidence so as to require the taxpayer to deal with that issue in his discharge of his overall burden of proof: see, for example, Federal Commissioner of Taxation v Casuarina Pty Ltd (1971) 127 CLR 62 at 72; Coppleson v Federal Commissioner of Taxation (1981) 52 FLR 95 at 98; 34 ALR 377 at 380-381; Gwynville Properties Pty Ltd v Federal Commissioner of Taxtion (1985) 16 ATR 143; 85 ATC 4046. 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. The history of expulsion, exclusion and removal of Aboriginal and Torres Strait Islander people from their country has a real and practical legacy in how people can now come together for the purposes of identifying a claim group with a continuing connection arising from traditional law and custom to particular country. 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. 62 Purkess was an appeal against an award of damages made in a personal injury case, in which an issue arose about whether the incapacities suffered by the appellant were potentially attributable to a pre-existing condition; a question far removed from the present kind of proceedings. It was in that context that Barwick CJ, Kitto and Taylor JJ said at 168, speaking obviously of an evidential burden: We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. 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. 64 The party which asserts native title does not exist must prove that to be the case, on the balance of probabilities. So too, the party which asserts native title does exist must also prove that contention on the balance of probabilities. In each case the evidence will be different, and particular. The question whether that burden 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 originating in a different adversarial context. 65 Further, as the Full Court stated in Worimi at [83], where there is otherwise no direct evidence of the existence of native title over the application area, even if a non-claimant application applicant satisfies the "formal requirements" for a non-claimant application (such as notification and the absence of responses) it is not inevitable that a determination that native title does not exist will be made. The absence of responses to a non-claimant application through a public notification process is not necessarily a reliable indicator that there are no persons or groups who assert native title in a non-claimant application area, especially a notification process based on newspapers and not on social media, or other forms of media communication. There is an assumption inherent in relying on that form of notification about how frequently, in 2019, members of the Indigenous community may read newspapers, as compared to in the past. In each case, the Court will need to determine whether to draw any inferences from the absence of responses to the notification process. 66 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 NT Act; see also s 140(2) of the Evidence Act. The appropriate level of caution to be applied, in a determination that native title exists, or does not exist, was described by the majority of the Full Court in Badimia at [48]: The 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. This fact warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. But the onus remains the civil standard of the balance of probabilities. If the circumstances are such that a native title claimant application has not been established to the requisite standard, the onus of proof to support a negative determination may or may not have been discharged. If not discharged, it necessarily follows that a negative determination may not be made. If discharged, however, it does not necessarily follow that a negative determination should be made. The propriety or otherwise of making of a negative determination in such a case will depend on a wide range of circumstances. As noted, the legal character of a determination, that it will bind the world at large and not just the parties, will necessarily inform the appropriate exercise of the discretion whether or not to make a negative determination. 67 And also the following relevant passage at [66]: 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. 68 Although there may be, numerically, a number of New South Wales non-claimant applications which are prompted by the requirements of the ALRA, and a number of Queensland non-claimant applications prompted by the preconditions to conversion of a leasehold interest into a freehold interest, an examination of the variety of factual circumstances in the reported cases illustrates why no hard and fast rules can be laid down about what evidence might be required, or what might suffice, for an applicant to meet the requisite standard of proof. In Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606, there was a determination that native title did not exist after an exhaustive trial. In Worimi (see [76]), the negative determination was made after, amongst other matters, hearing evidence from 11 witnesses, three of whom were cross-examined, including eight witnesses who identified as Worimi people. Although the appellant contended at trial that native title existed, there was evidence from Aboriginal people that the land was not considered to be subject to native title rights and interests. In Badimia, again after a fully contested trial on a claimant application, a determination was made that native title did not exist, and the Full Court upheld this determination. 69 It should be noted that Reeves J gave separate reasons for judgment in Badimia. Whilst his Honour generally agreed with the majority's position on grounds one and two of the appeal, that agreement was subject to the views his Honour expressed about two distinct issues he considered arose under ground one, both of which concerned the power of a court to make a negative determination of native title following an unsuccessful claimant application. The first of those issues concerned his Honour's opinion on "the true character and purpose of a non-claimant application", and the second concerned the relevance of s 213(1) of the NT Act to the appeal (at [86]). No doubt, his Honour's views on the character and purpose of non-claimant applications informed some of the observations he subsequently made in Pate: see, for example, his Honour's observations at [88] and [110] of Badimia. Nevertheless, the position as stated by the majority in Badimia is the law to be applied, and in our respectful opinion that includes the reasoning which we have extracted above, and which led to the majority's conclusion on that appeal. 70 After the hearing in these proceedings, the Darkinjung applicant helpfully prepared and provided to the Court a table setting out examples of the various circumstances in which negative determinations have been made in this Court. The table appears to be confined to decisions in proceedings from New South Wales and Queensland, but nevertheless illustrates that determinations that no native title exists are made in a variety of circumstances. That is also the case for the lesser number of negative determination which have been made in respect of land and waters in other parts of Australia. Omitting Pate, which is in a category by itself as the only non-claimant application that has been dismissed, the categories addressed by the table are: (a) cases where a negative determination has been made where the applicant has not led evidence from Indigenous witnesses speaking to the presence or absence of cultural significance and/or the presence or absence of the exercise of any native title right or interest on the subject land; (b) cases where a negative determination has been made where the applicant has led evidence from Indigenous witnesses speaking to the presence or absence of cultural significance and/or the presence or absence of the exercise of any native title right or interest on the subject land where there has not been a positive assertion by a respondent of the existence of native title; (c) cases where a negative determination has been made where the applicant has led evidence from Indigenous witnesses speaking to the presence or lack of cultural significance and/or the presence or absence of the exercise of any native title right or interest on the subject land but only in response to a positive assertion from a respondent as to the existence of native title in the subject land; and (d) cases where a negative determination has been made but where the reasons have not been published or are unavailable. 71 The first category of cases is numerically the largest, but there are still a substantial number of cases in the second category, including applications made by New South Wales Aboriginal Land Councils. The third category consists of only two cases: Jerrinja Local Aboriginal Land Council v Attorney General of the State of New South Wales [2013] FCA 562, and Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929; 181 FCR 300, the latter being Bennett J's decision which was upheld by the Full Court in Worimi. 72 What is plain from the leading authorities, and from the decisions on individual non-claimant applications, is that the particular circumstances of each application are critical to the nature and extent of evidence that a Court may require in order to be satisfied whether it is appropriate to make the determination sought. Given what is at stake, and the fact that any such determination affects property rights, as against the whole world, no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make such an order and the potential combination of considerations which may arise in any particular application cannot be predicted, or turned into any kind of checklist. 73 We also consider that even though these are not unopposed applications under s 86G, the Court is able to consider as a factor in the exercise of its power whether it is "appropriate" to make a determination that no native title exists, even if a non-claimant applicant has proven on the balance of probabilities that no native title exists. The cases might be rare indeed where, if the burden of proof is discharged, a Court would consider it inappropriate to make a negative determination. However, in principle it may be no different to the Court's discretion to withhold relief in proceedings brought in other parts of its jurisdiction where an applicant has otherwise made out a case for relief. The circumstances which arise in the consideration of a determination to be made under the NT Act are broad, and new circumstances may yet arise, so that the Court should not foreclose consideration of such a factor. The "appropriateness" consideration governs and is a condition of the exercise of power in s 86G, and we see no reason why it is not at least a permissible factor to consider in a contested application.
The Court's decision in Pate 74 Pate is, so far as can be ascertained (including from the table of cases produced by the Darkinjung applicant), the only separate non-claimant application which has been dismissed. 75 However, there have been circumstances where, in the context of a claimant application, a court has refused to make a negative determination after the claimant application has failed, but that is a quite different circumstance: see, for example, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1. 76 The facts in Pate concerned a situation similar to that in the Mace application: a lessee (Ms Pate) who wished to convert her rolling lease to freehold, and needed to meet the State's conditions on the conversion offer, which included a condition requiring the surrender of any existing native title in the land, to the same effect as the condition imposed on the Mace applicant. The State, which was the only other party to the non-claimant application, did not oppose the application, and Reeves J noted at [9] that it was common ground the matter could proceed under s 86G in those circumstances. His Honour further held at [13]-[14] that Ms Pate had met the "jurisdictional pre-conditions" to the power in s 86G. At [14]-[15] his Honour noted that, despite some difficulties with how Ms Pate had expressed the relief sought, she was in substance seeking a determination that native title did not exist over the land and waters the subject of the non-claimant application, on the basis that native title did not presently exist, because it was not claimed by or could not be proved by a native title claimant (adopting the language of Griffiths J in Deerubbin at [48(a)]). 77 Thus, Reeves J's reasons in Pate focused on the discretion in s 86G(1), to the effect that a determination could be made if it appeared appropriate to the Court to do so. From [19] onwards, his Honour set out his reasoning which led to the conclusion we extract at [85] below. This included his observations about the previous authorities, such as Worimi and Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355. His Honour also extracted some passages from his own reasons in Badimia, in which his Honour expressed his differing views on the character and purpose of a non-claimant application. His Honour then explained what he considered to be the effects of s 24FA of the NT Act, why it was sufficient protection for a person in Ms Pate's position, and the "foreclosing" of any compensation application which s 24FA otherwise preserves if a negative determination is made. His Honour then concluded at [41]: If my conclusions about this outcome are correct, it is, on its face, inconsistent with one of the main objects of the NTA. Namely to protect native title (see at [20] above) or, in this case, the right to compensation that would replace it. That being so, I would have expected to find it clearly expressed as an exception to that protective object somewhere within the provisions of the NTA. That clear expression does not, in my view, emerge from any of the most obvious places. That is to say, in Subdivision F, or in the notice provisions of s 66(10) discussed above, or in ss 13, 50 or 61. In this respect it is worth adding two further observations. First, a future native title determination application with respect to an area covered by s 24FA protection was expressly anticipated in that part of the explanatory memorandum relating to the provisions of Subdivision F (see at [28(98)] and [28(99)] above). That being so, it would seem unlikely that Subdivision F contains such an exception. Secondly, it is also unlikely that the revocation or variation exception in s 13, mentioned in [35] above, constituted that exception because, as appears at [36] above, an applicant authorised by a native title claim group is not one of the persons who can make such an application. In the absence of such clear expression and on the same assumption as to the correctness of my conclusions, I do not consider it is open to make a negative determination of native title under s 86G in this matter consistently with the objects and purposes of the Act (see at [19] above). This conclusion would be sufficient, in itself, to dispose of Ms Pate's application. However, because I have not had the advantage of detailed submissions on this complex issue of statutory construction, it is appropriate that I should explain why I consider Ms Pate's application fails for a number of other quite separate reasons. (Emphasis added.) 78 The part we have emphasised in bold could be seen as laying down a restriction or limitation on the operation of s 86G, and perhaps also on any contested non-claimant application. However, as his Honour acknowledged in the last portion of this paragraph, these were not matters upon which he had the benefit of detailed submissions. As such, his Honour's observations at [41] were obiter dicta. His Honour did not find or determine that any previous decision relying on s 86G to make a negative determination notwithstanding the existence of the "protection" afforded by s 24FA was plainly wrong because it proceeded on a basis his Honour considered was "not open". Therefore, what his Honour said at [41] should be read as an expression of his Honour's opinion about what is not "appropriate", for the purposes of s 86G(1), only on the facts before his Honour. To the extent that his Honour returned to this matter as a reason not to make the negative determination (see [58]) we consider he did so as but one of a number of reasons he was not satisfied Ms Pate had discharged her burden of proof. 79 From [42] onwards, Reeves J set out the "separate reasons" why he considered it was not appropriate to make the negative determination sought by Ms Pate. At [43], his Honour relevantly stated: The Court in Worimi FC made it clear that the nature and extent of that sufficient evidence will vary depending upon the facts and circumstances of each individual case. For the reasons given in the conclusion section below, I do not consider Ms Pate has adduced sufficient evidence to discharge that onus. 80 That passage indicates that, again, his Honour was confining his remarks to the evidence and circumstances before him on Ms Pate's application. In doing so, his Honour made it clear (at [45]-[55]) that he did not consider satisfaction of the "formal requirements" of the NT Act was sufficient for Ms Pate to discharge her onus of proof. The reference to "formal requirements" was a reference by his Honour to what was said by Griffiths J in Deerubbin at [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]). 81 His Honour then sought to explain the number of cases where those requirements have been seen as sufficient for a non-claimant applicant to discharge its burden of proof as a situation arising from the "peculiar circumstance" of s 42 of the ALRA in New South Wales which, in his Honour's opinion, has led to the adoption of a "less stringent" approach to the evidence in non-claimant applications in New South Wales (see [54]). 82 Although most of the Court's reasons in Pate can be seen as the exercise of a judicial discretion on the particular evidence and circumstances of that case, the observation at [54] does need to be addressed. With great respect, characterising the approaches taken in previous cases as "stringent" or "less stringent" is apt to obscure the fact that each case arises in its own circumstances. The Court's task is not to be more or less "stringent": it is to consider each application on its merits and 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. That was the point made by Emmett J in Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229; 115 FCR 109 at [22], on which Reeves J also relied: … The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes. (Original emphasis.) 83 At [57], Reeves J referred to this concept of caution, including as it was explained by the Full Court in Badimia at [66], noting that in Badimia the Court was asked to make a negative determination after a "fully contested hearing". His Honour then stated: That being so, I consider much greater caution is required in an unopposed and uncontested application for a negative determination under s 86G of the NTA. 84 With respect, we would not employ a phrase such as "much greater caution" in this context. There is no sliding scale of caution to be applied. In unopposed applications, or in contested ones, the Court's approach will depend entirely on what it hears in the evidence about the land and waters in question, the presence or absence of previous native title claims, any evidence of present claims or objections from persons claiming to be native title holders, of research undertaken or not undertaken by a representative body or by others, or of the knowledge (or lack of it) of Indigenous people who give evidence or provide information to a person who gives evidence, or what the Court considers can or cannot be drawn from the absence of any evidence about present connection to the claimed land and waters arising from traditional law and custom. The serious consequences of making a negative determination are apparent, and it can be assumed each judge considering such an application is aware of them. 85 The central reasoning applied by Reeves J for his Honour's refusal to make a negative determination in Pate appeared at [59] of his Honour's reasons: Thirdly, but alternatively, having regard to all the facts and circumstances of this case, I do not consider Ms Pate has adduced sufficient evidence to discharge her onus to prove, on the balance of probabilities, that no native title exists in the land comprising her lease. In this respect, it is to be noted that the only evidence Ms Pate has adduced in support of her application is her compliance with the formal requirements for s 24FA protection as set out in s 24FC. Conversely, apart from the evidence of the three native title determination applications which covered the land comprising her lease (see at [5] above), she has not adduced any evidence about the history of that land, the presence or absence of any native title in the vicinity of it, or the presence or absence of any Aboriginal connection with it. She has also not adduced any evidence from the Native Title Representative Body for the area concerned expressing its views as to whether native title rights and interests are likely to exist on that land. This is an important deficiency in the evidence because one of the functions of a Native Title Representative Body under the NTA is to "as far as is reasonably practicable, identify persons who may hold native title in the area for which the [B]ody is the representative body" (see s 203BJ(b)). Moreover, and relatedly, while there is evidence that there has, in the past, been a registered claimant application extant with respect to the land comprising Ms Pate's lease, which application was subsequently dismissed, Ms Pate has not adduced any evidence to explain how that application managed to pass the registration test in Part 7 of the NTA. Given the function of a Native Title Representative Body mentioned above, it is likely, in my view, that the Body with responsibility for the area covering Ms Pate's lease will be able to shed some light on that issue. Finally on this aspect, I should record that the existence of that registered claim, albeit that it has since been dismissed, combined with the absence of any evidence to explain how it came to be registered, stands against my drawing the inference that Ms Pate has proffered, that no native title rights and interests exist in the area of her lease. It is because of all these deficiencies in Ms Pate's supporting evidence that I do not consider she has discharged the onus she bears in this non-claimant application. 86 Although his Honour expressed these findings as in the alternative, we would respectfully describe them as the principal part of his reasons where he engaged with the evidence before the Court. He found the evidence insufficient for a determination to be made, and that was entirely a matter for his Honour. We agree with his Honour, with respect, that what is or is not put before the Court by the relevant representative body for the area may have a significant effect on the Court's conclusion whether a non-claimant applicant has discharged its burden of proof. We return to this below. 87 In summary, although there were differences of emphasis, and some obiter statements which related to Reeves J's own opinions about the importance of s 24FA in the statutory scheme of the NT Act, the order in Pate represented an application of the principles in Worimi as Reeves J described them in [43] of his reasons; namely, that "the nature and extent of that sufficient evidence will vary depending upon the facts and circumstances of each individual case". 88 Accordingly, and subject to our respectful disagreement with some of his Honour's obiter statements, including our observations at [78] above concerning his Honour's statement about the inconsistency of a negative determination with the objects and purposes of the NT Act, there is no need to address the submissions of the Mace applicant about why it contends Pate was wrongly decided.
The role of native title representative bodies in non-claimant applications 89 In the Darkinjung application, at [6] of its further written submissions, NTSCORP made two submissions to which an express response should be given. First, that: Placing the obligation on a person to assert native title by making a native title determination application, or joining as a respondent to assert native title defensively, requires a leap of faith that potential native title claimants are aware of public notices and have the resources to respond to a notice. 90 Second, that: In circumstances like the present where no research or fieldwork has been carried out by the representative body and there are no details of potential native title holders on the representative body database to enable them to make its own inquiries, it is submitted that a notice is not enough to satisfy a court that an applicant has proved its case. (Footnote omitted.) 91 The second matter was a submission based on Ms Holt's evidence, which was as follows (at [13]-[15] of Ms Holt's affidavit dated 14 May 2019): I am informed by Mr Ken Lum, NTSCORP's Manager of Research, that no anthropological report has yet been produced for the area subject of the Darkinjung Non-Claimant Application. In my experience an anthropological report of the kind referred to in [13] above, would assist in informing the list of persons contained in the notifications database referred to in [10] above. I am aware that NTSCORP's funding is limited in nature and for that reason the anthropological research undertaken by NTSCORP is prioritised and has to date primarily been directed towards proceedings which are or were before the Federal Court of Australia and which are or were represented and funded by NTSCORP and to certain priority areas in which NTSCORP has accepted facilitation and assistance requests to prepare native title determination applications. 92 These matters were developed orally by counsel, to the same effect. As to the first matter, the notifications given by the NNTT are published in newspapers which, we infer, are reasonably apprehended by the NNTT to reach a greater proportion of Indigenous readers than other newspapers might. Whether or not there is any empirical basis for such an apprehension is unknown. However, it is not an objectively unreasonable process for the NNTT to publish the notifications in publications such as the Koori Mail and the Central Coast Express Advocate. It might be said that in current times, consideration should be given more regularly to the use of social media for these notifications, but that is a separate issue. No party submitted that the failure to use social media rendered the notifications substantially ineffective. However, it is a matter of which judicial notice can be taken that vast amounts of public and community communications now occur through social media rather than through newspapers. 93 Even if notification through newspapers is considered a reasonable approach, it can be accepted that such advertisements may reach only a proportion of people who may have an interest, or be interested in, a non-claimant application of this kind. The reasons for that will be various: a non-exhaustive list might include accessibility, pressures and demands in people's lives that may take precedence over reading the newspapers for advertisements, literacy, and the popularity of, and preference for, other information sources such as social media and television. 94 Taking note of these realities does not lead us to accept NTSCORP's submissions. That is because evidence of the notification process, and (on this hypothesis) the absence of any responses, will not be the only evidence before the Court on a non-claimant application. The weight to be given to the absence of any responses will 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. There can be no prescription that absence of responses to NNTT notifications should be given great weight, or no weight, or something in between. What is more important, it seems, is that the Court can reasonably expect a representative body for the region in which the non-claimant application land and waters are located to provide some evidence or information to the Court about what it knows, or does not know, about potential native title holders for the claimed area. That is what NTSCORP has done, to a limited extent, in this case. 95 Representative bodies have, as part of their facilitation and assistance functions under s 203BB(1) of the NT Act, a function which includes assisting persons "who may hold native title" in "consultations, mediations, negotiations and proceedings" relating to, amongst other matters, "native title applications" and "any other matters relating to native title or to the operation of this Act". That aspect of their facilitation and assistance functions plainly includes assistance in respect of resisting non-claimant applications. Part of the responsibility for advancing the protective aspect of the objects of the NT Act, an aspect which both representative bodies in this case wished to emphasise in their submissions, is for representative bodies to ensure they perform their functions under s 203BB in a way which does seek, within their region, to protect the native title rights and interests of persons who may be affected by a non-claimant application. Just as NTSCORP submits the Court should not rely entirely on the absence of responses to notifications under s 66, neither can representative bodies. As part of a representative body's functions, there should be some level of active, and proactive, engagement with a non-claimant application, notice of which is required to be given to the representative body. 96 In our opinion, that is one of the purposes of the terms of s 66(2A) of the NT Act. The obligation imposed on the Native Title Registrar to give notice of an application to the relevant representative body is imposed because Parliament intends a representative body, consistently with its functions, might assist and facilitate any opposition to the non-claimant application by persons who may hold native title. It is also because Parliament intends that a representative body be treated as a likely repository of at least some information about potential native title holders in its region. 97 Although, as NTSCORP's submissions contend, it can be accepted that representative bodies face funding challenges, we do not consider that is a satisfactory explanation, in and of itself, in the context of a non-claimant application, for inviting a Court to refuse to make a negative determination. A representative body's facilitation and assistance functions are no less important in respect of non-claimant applications than they are in respect of claimant applications, since the former determination will preclude any future claims of native title over the land and waters concerned. The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land and waters 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. To raise an objectively arguable claim of native title sufficient to mean that a non-claimant application needs to go to a full trial, the evidence of native title need not be extensive: it will be the quality of the evidence which is determinative. 98 If representative bodies actively perform their functions in relation to non-claimant applications, not only will the Court be assisted by the additional clarity which would be brought to the strengths and weaknesses of any non-claimant application, but any potential holders of native title in the area concerned would also be assisted, thus advancing the protective purposes of the NT Act on which NTSCORP and QSNTS rely in these proceedings.
Resolution of the two non-claimant applications: general matters 99 Due to the joinder of QSNTS, and their opposition to the relief sought in the Mace proceeding, and the opposition of NTSCORP to the relief sought in the Darkinjung proceeding, neither non-claimant application can be resolved under s 86G of the NT Act, which is only applicable to unopposed applications. 100 Therefore, the power exercised by the Court on these two applications is the power in s 81 of the NT Act, read with s 94A and s 225: see Badimia at [40], [41] and [49]. 101 At the outset, it should be noted that the "Statement of Issues in Dispute" document filed by the applicant and the Attorney-General in the Darkinjung proceeding had a flavour of a document seeking an advisory opinion from this Court. For example, issue two was: Where an applicant in a non-claimant native title determination application has established a prima facie case of no native title, what evidence must a respondent opposing the non-claimant native title determination application adduce to rebut the prima facie case of no native title? 102 As these reasons explain, the use of language such as "prima facie case" is unnecessary and apt to mislead. Just as it is not appropriate to be prescriptive about the evidence a non-claimant applicant itself will need to adduce in any given case to discharge its burden of proof, so too it is inappropriate for the Court to lay down any kind of prescription about the kind of evidence an objecting respondent "must" adduce to rebut a non-claimant applicant's case. All non-claimant applications must be assessed on their own facts and circumstances, and what is required for the applicable level of persuasion will vary from case to case.
Resolution: The Mace application 103 It is necessary to deal first with Ms Mailman's affidavit, and the objections to it.
Ms Mailman's affidavit 104 Ms Mailman deposes that she is a former native title claimant on the various claims filed on behalf of the Bidjara People. She deposes that she was a member of the applicant for the Bidjara #6 and Bidjara #7 native title determination applications (Wyman & Ors on behalf of the Bidjara People v State of Queensland & Anor (QUD216/2018) and Waterton & Ors on behalf of the Bidjara People v State of Queensland & Anor (QUD644/2012)). Ms Mailman deposes that she gave evidence in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 relating to the area of overlap between Bidjara and Karingbal and the Brown River People. She is the Manager of Mt Tabor Station, and deposes that she is familiar with many pastoral properties in Central Queensland. 105 Ms Mailman deposes that she only found out about the existence of the Mace non-claimant application approximately two weeks prior to affirming her affidavit on 7 November 2019. Her evidence is that she found out about it when Mr Wishart of QSNTS called her. She deposes that, after an explanation from Mr Wishart, she understood where the Mace applicant's leasehold property is located, which she describes in her affidavit as "Callene South", and which is to the north of a station she knows, called Myall Station. We infer from the way Ms Mailman expresses herself in her affidavit that the precise location of the Mace applicant's leasehold property is not familiar to her, but areas around it are. 106 Ms Mailman describes the Mace leasehold property as being within the "external boundaries" of Bidjara land. Her evidence is that she knows the boundaries of Bidjara country as told to her by Uncle Rusty Fraser when he lived with her on Mt Tabor Station. Her evidence is that from a map Mr Wishart showed her, she has now identified that the Mace leasehold property is located outside the area "determined" in the Bidjara overlap proceedings. 107 We interpolate here that in Wyman (No 2) the Court dismissed the application for a determination of native title in the overlap area. Leave was reserved to the State of Queensland to apply for a negative determination over the overlap area. On 21 February 2014, the Court made a negative determination of native title in the overlap area: Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93, and see also the Court's reasons in Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8. We return to the significance for this non-claimant application of Wyman (No 2), and the other Bidjara proceedings, below. 108 Ms Mailman then deposes at [8]-[10]: I had not become or sought to become a party to Mr Mace's application because until I spoke to Wishart I was unaware that it was on foot. Had I been aware of Mr Mace's application I would have sought assistance to join the action as a party because I consider it would be wrong for the Court to order that native title does not exist over Callene South when I am sure that it does. I would like to have the opportunity to assert mine and my family's rights over Callene South and have a say about whether there is a determination of no native title. In recent times I have been speaking with Wishart about putting together a Bidjara claim over an area from Mt Tabor to around Charleville that would include Callene South. 109 The Mace applicant objected to QSNTS relying on the affidavit of Ms Mailman. Counsel submitted that the affidavit was provided very late, outside the Court's orders and without any explanation for its lateness. Counsel submitted the Mace applicant would be prejudiced if QSNTS was permitted to rely on the affidavit because it could have made inquiries about matters to which Ms Mailman deposes, such as who were the other family members who also asserted they had native title rights and interests in the non-claimant application area, and the nature of the purported discussions between Ms Mailman and Mr Wishart about a new Bidjara claim set out at [10] of Ms Mailman's affidavit. Counsel submitted Ms Mailman may have been required for cross-examination, if the Mace applicant had been on notice that this non-claimant application was now a contested trial at an evidentiary level. 110 There is force in those submissions. Just as with the joinder application itself, in the absence of any substantive explanation, the conduct of QSNTS in adducing this evidence so close to the hearing appears unsatisfactory. These areas are well-known to QSNTS to have been covered by the Bidjara native title claims, and indeed, Ms Mailman's evidence supports such a finding. Her evidence is that Mr Wishart contacted her (not the other way around), but why that contact was left so late is unexplained. The lateness of QSNTS contacting a former native title claimant highlights the matters we have set out at [89]-[98] above about the functions of representative bodies, and illustrates why representative bodies need to attend carefully to those functions. 111 We accept that the lateness of Ms Mailman's affidavit meant that the Mace applicant was not able to give notice she was required for cross-examination, nor was it able to seek further instructions about the content of her affidavit. In some circumstances, those facts may have been ample to reject the affidavit and uphold the objections. However here, as counsel for the Mace applicant properly accepted in oral submissions, the answer to the matters raised in Ms Mailman's affidavit would be the same as the answer given by the Mace applicant in its written submissions: namely, the dismissal of the Bidjara claims, and the likelihood that any future claim brought by the Bidjara People would be seen as an abuse of the Court's processes under the NT Act, given the Court's findings in Wyman (No 2), Wyman (No 3), Wyman (No 4) and Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777 (Wyman 2016). 112 In those circumstances, there is no real prejudice to the Mace applicant by the reception of Ms Mailman's affidavit into evidence. The State did not object to the affidavit being read. Given what is at stake for the Bidjara People, and for the fate of any other possible but as yet un-asserted native title rights and interests in the Mace non-claimant application area, we consider QSNTS should be able to read Ms Mailman's affidavit in support of its objection to the non-claimant application, so that the Court's decision includes consideration of what Ms Mailman has to say. 113 Accordingly, the affidavit of Ms Mailman will be treated as read in support of the objection by QSNTS to the Mace non-claimant application.
Factors other than the Bidjara proceedings 114 The Mace applicant has complied with all the statutory requirements, and in that sense the preconditions to the exercise of the Court's power to make a negative determination have been met. 115 The principal question is whether the Mace applicant has proven on the balance of probabilities that no native title exists in the Mace non-claimant application area. As noted at [73] above, there may be (rare) cases where even if that burden is discharged, the Court may consider it is not appropriate to make a negative determination. There are no factors which emerge on the evidence in this case which in our opinion would render it inappropriate for a negative determination to be made, if the Mace applicant is found to have discharged its burden of proof. 116 Some weight should be given to the fact that there were no responses to the NNTT notifications. The weight this factor should be given is increased by the amount of time the non-claimant application has been on foot, and without any objections being brought to the Court's attention. However, as we have explained above, and as Ms Mailman's evidence demonstrates, the notification process can fail to reach even previous native title claimants who have been actively involved in native title claims over areas which include the non-claimant application area. That may be because the publication of notices in newspapers is no longer the most effective way to reach members of the Indigenous community. There may be a myriad of reasons. In this non-claimant application, where it is common ground there were previous and sustained native title claims over the application area, the absence of responses to the notifications would have been an insufficient basis in and of itself to discharge the Mace applicant's burden of proof. 117 It is also correct, as the Mace applicant submits, that there are no other applications seeking a determination of native title over the Mace land, no entries in the Register of Native Title Claims in respect of the land, and that no person has been joined to the application as a respondent to assert the existence of native title over the land. Ms Mailman's evidence is that had she known earlier, she would have applied to be joined as a respondent, and we accept that may well have been the case. On the evidence as it stands, even if that had occurred, it would not have altered the conclusions we have reached. These more formal factors are entitled to some weight, but in a situation where there have been previous native title claims of the kind in the Bidjara proceedings, more would have been needed to discharge the Mace applicant's burden of proof. 118 In our opinion, it is the existence and content of the decisions in the Bidjara proceedings which is the factor of most weight on this application, and which has persuaded us on the balance of probabilities that no native title exists in respect of the Mace land. 119 Ms Mailman's evidence, extracted at [108] above, does not reduce our level of persuasion. She deposes that she has recently been "speaking" with Mr Wishart about "putting together a Bidjara claim over an area from Mt Tabor to around Charleville that would include Callene South", noting Ms Mailman identifies "Callene South" as the name of the Mace applicant's leasehold property. There is no detail supplied about when those conversations occurred, whether there was more than one conversation, which other potential native title holders were involved in the conversations (for example, whether there were senior claimants involved in the conversations), whose agreement might be necessary for a claim to be filed, whether appropriate research has been undertaken or is underway, what the proposed composition of the claim group would be (including whether it would be different to the composition of the claim groups in the previous Bidjara claims), whether the land and waters claimed would be different to those claimed in the previous Bidjara claims and if so to what extent, what the basis for the claim would be and how the Court's findings in the previous Bidjara decisions would be addressed so as to give any new claim an arguable prospect of success. 120 We do not doubt the sincerity of Ms Mailman's general desire to try to secure recognition of native title for the Bidjara People. Nor do we doubt the sincerity of her personal conviction that she, and the Bidjara People, should be recognised as having native title rights and interests in the area which they have claimed, including the Mace land. That is, we accept, what Ms Mailman means by her evidence that she is "sure" native title exists in the Mace land. 121 The difficulty for Ms Mailman, and any Bidjara person who was part of the claim group in the previous Bidjara proceedings, is that the Court has found any native title rights and interests asserted by the Bidjara People cannot be recognised under Australian law because the traditional laws and customs through which those rights and interests arise have not continued to be recognised and practised by the Bidjara People to the present day. That is why the kinds of matters to which we have referred in [119] above would have been necessary to address if an attempt was to be made to invite the Court not to treat the previous Bidjara decisions as having any significant weight in the consideration of this non-claimant application.
The previous Bidjara proceedings 122 The procedural history and outcomes of the former Bidjara native title claims which encompassed the Mace land are the subject of agreed facts as between the applicant and the State of Queensland. Since it was not yet a party, QSNTS did not formally agree to the facts in the form proposed, but it did not suggest (save for one matter) in its submissions that the agreed facts concerning the Bidjara proceedings were not accurate. QSNTS did state in its written submissions, by reference to the evidence of Mr Wishart, that there were four, and not three, relevant previous Bidjara native title applications. However, it is an agreed fact that there were only three, as set out at [21] of the statement of agreed facts, and to the extent Mr Wishart's evidence contradicts this fact, it is inadmissible: see s 191(2)(b) of the Evidence Act. 123 The following findings are made on the basis of the agreed statement of facts. 124 The Mace land has previously been covered by three native title determination applications on behalf of the Bidjara People: (a) Lawton and others on behalf of the Bidjara People and their clan groups (QC1997/001) (Lawton); (b) Fraser and others on behalf of the Bidjara People (No 3) v State of Queensland (QUD6156/1998) (Bidjara #3); and (c) Wyman and others on behalf of the Bidjara People (No 6) v State of Queensland (QUD216/2008) (Bidjara #6). 125 The Lawton claim was filed on 15 January 1997, but was withdrawn on 4 November 1997. 126 The Bidjara #3 claim was filed on 28 October 1997 but was discontinued on 5 September 2008. 127 The Bidjara #6 claim was filed on 23 July 2008, and remained on the Register of Native Title Claims from 12 September 2008 to 6 July 2016. 128 Part of the Bidjara #6 claim area overlapped with four claims brought on behalf of the Brown River and Karingbal Peoples. Those proceedings were: (a) Kevin Albury and Others on behalf of the Karingbal People #2 v State of Queensland and Others (QUD23/2006); (b) Charles Stapleton and Others on behalf of the Brown River People v State of Queensland and Others (QUD245/2011); (ac) Charles Stapleton and Others on behalf of the Brown River People #2 v State of Queensland and Others (QUD301/2012); and (ad) Kevin Albury and Others on Behalf of the Karingbal People #3 v State of Queensland and Others (QUD310/2012). 129 In Wyman (No 2), by a separate question procedure which split off that part of the Bidjara #6 claim area which overlapped with the above four claims, the Court considered the native title claims of the Bidjara, Karingbal and Brown River Peoples to the overlap area, which included the Arcadia Valley, Carnarvon Gorge and parts of Carnarvon National Park. 130 On 6 December 2013, the Court delivered its reasons for judgment in Wyman (No 2). The Court found neither the Karingbal nor the Brown River Peoples had proven the existence of native title rights and interests held by them in the overlap area, because the requirements of s 223 of the NT Act had not been met by the Brown River People and because the Court was not satisfied that a body of traditional laws and customs had continued to be practised by the Karingbal People. In relation to the Bidjara People, the Court found the Bidjara applicant had not proven the existence of native title in the overlap area because the Bidjara normative system of traditional law and custom had not continued to the present day. 131 At [625], the Court explained why the circumstances of the Bidjara applicant differed from those of the Karingbal applicant: In contrast to the position of the Karingbal, and perhaps purely as a result of an initial greater population, the evidence does support the inference that a Bidjara society has continued to exist since sovereignty at least in the common, rather than the NTA, sense of a society. That is, a distinct body of people who identify as Bidjara existed at sovereignty and may be inferred from the evidence to have continued to exist at all subsequent times. Unlike the Karingbal it cannot be inferred that the concept of a Bidjara society is largely the result of the native title claim process and the anthropological evidence required to be gathered in support. The Bidjara plainly existed as a distinct body of people who identified as Bidjara and who demonstrated a real interest in their own cultural heritage well before the era of the NTA. The issues for the Bidjara are whether their contemporary Bidjara society is united in its acknowledgment and observance of the traditional, that is pre-sovereignty, laws and customs of the Bidjara people and whether those laws and customs found their continued connection to that part of the overlap area which I have found was Bidjara country. (Emphasis added.) 132 Then, at [628], noting in particular the reference to Uncle Rusty Fraser, upon whom Ms Mailman deposes she relies for her knowledge about the boundaries of Bidjara country: The evidence supports the inference that this important aspect of the pre-sovereignty traditional laws and customs of the Bidjara people had been lost by the time of the generation of Uncle Rusty Fraser, Bob Mailman and Betty Saylor. As the State said, "no evidence of any continued acknowledgment or observance of these aspects of the law and custom was given by Rusty Fraser, Richie Fraser, Bob Mailman or Betty Saylor, at the preservation of evidence hearing in 2001". While Floyd Robinson said he had been told that "[y]ou've got different parts of country relate to different mobs, different bigguns, totems and things like that, or different families associated with different camps here and there, birthplaces, burial places, ceremony places" it was apparent that the other contemporary Bidjara witnesses denied the existence of any such notions in their current dealings with each other. Even for Floyd Robinson, who had been told these things, the basic rule now was that the whole of Bidjara country belongs equally to all Bidjara, which is a stark contrast to the position that would have existed under traditional Bidjara law and customs. The passage of time, the displacement of Bidjara people from their country during European colonisation, the need to find work elsewhere, would all have impacted on the continued observance of this aspect of traditional law and custom but the relevant fact is that it has been entirely lost and was probably lost by the early 20th century. 133 Before setting out the evidence in more detail, the Court also made adverse findings about the knowledge of contemporary Bidjara people about the boundaries of their land (at [631]): Other discontinuities in respect of the Bidjara's relationship to land were noticeable. The contemporary Bidjara witnesses, unlike the Karingbal it must be said, seem to have lost any real understanding of (at least the eastern) boundaries of their country based on traditional knowledge. The expansive boundaries claimed to have been supported by Uncle Rusty Fraser, as explained above, are not supported by any rational view of the evidence and, more to the point, are not a result of the handing down by word-of-mouth of the knowledge of the traditional boundaries of Bidjara country. While most of the Bidjara witnesses grasped that Bidjara country was centred on the area west of the Great Dividing Range, traditional notions of country and the country of neighbours of the Bidjara appear to have largely been lost. 134 That finding is of some significance in the Mace non-claimant application. If the asserted knowledge of the Bidjara witnesses about some of the boundaries of their country was found on a full trial to be unsupported by the evidence, then this weakens any reliance which could be placed on the evidence of Ms Mailman, especially since she deposes that her knowledge of the boundaries of Bidjara country is derived from Uncle Rusty Fraser, one of the key witnesses about whom these findings in Wyman (No 2) were made. 135 The question of continuity was fully contested in Wyman (No 2), with the Bidjara applicant and the State of Queensland both adducing expert evidence outlining competing views about continuity. The following passage at [645] illustrates that the Court made clear findings about which evidence should be accepted: Consistent with the position of the State this evidence cannot be seen as suggesting any continued knowledge of the four class section system. To the contrary it suggests that the knowledge has been lost and some attempt at revival was made for the purpose of the hearing. As such, I do not accept Professor Langton's opinion that this showed "very clear evidence of continuity". I consider it shows clear evidence of loss of traditional laws and customs. I instead accept the evidence of Professor Sutton who said there was no evidence of continuation of section/moiety structures as norms for the selection of marriage parties. For example, Rodney Mailman said that while he had read somewhere that Bidjara should not marry other Bidjara most Bidjara now married within their own tribe and he did not know the rules about marriage. 136 Therefore, this is not a situation where there was any equivocation or qualification around those aspects of the Court's findings which are relevant to the Mace non-claimant application. 137 At [649]-[650], the Court referred in detail to the claimant evidence before it, including the evidence of Ms Mailman, which we have emphasised in bold: I agree with the State, however, that the weight of the evidence indicated that for all practical purposes the domains of separate men's and women's business has been lost. While (like the Karingbal) Bidjara witnesses were aware of the existence of men's and women's sites previously used for the distinct purposes of each, there was nothing in the evidence to suggest any continued practice of these distinctions. It is also true, as the State noted, that: (a) Floyd Robinson gave extensive evidence referring to various photographs depicting places (outside the overlap area) associated with "women's business"; (b) When asked about this, Keelen Mailman said that it was not really the right thing for him to be doing, but suggested she had given him permission retrospectively; (c) Keelen Mailman stated that there are some areas which are "exclusively 'Women's Business'" and that she teaches her girls about these areas and what they mean. There is no other evidence that explains this bare assertion or gives any information about the normative content of womens' business or the basis upon which it is a shared norm within the community. Moreover, the content of the womens' business itself is not identified. The oral evidence also contained references to women's and men's business, however, there is simply no evidence about what it is or the role which it plays other than vague and general references to marriage. Yet, as is apparent, the marriage system is no longer operative. It is therefore not possible to conclude that women's business operates as a norm in that context; (d) The formerly strict division between mens' and women's business has also become blurred. In the past, she could "never have imagined it being like Uncle Rusty looks after that specific stuff. It would have been men look after men's stuff and women look after women's stuff." However, now, Keelen Mailman is a "keeper" of a male initiation site which she accepted was exclusively mens' business. The explanation given appears to be that old people have died and it has become necessary for her to perform that role. However, that circumstance merely provides evidence of a loss of the norm that maintained men's and women's business as supposedly exclusive domains, and the reason for the loss. In any event, the mens' site in question was an initiation site and initiations have ceased. (e) Sheryl Lawton candidly acknowledged in her statement at [59] that "There was none of the women's business stuff for me growing up. I think my mum's education going to boarding school, she didn't have that cultural background and not understanding the Bidjara language, she wouldn't have been inclined to teach us because it wasn't her language and she had the primary care of us because dad was away a lot of the time working"; (f) Patricia Fraser's evidence was that "Dad would pass information on to Mum and Mum would teach us girls if certain customs required women's business." This evidence simply does not give any useful detail of what women's business is or of the "certain customs" that "required women's business." Moreover, her mother was Mandandandji and there is no evidence about how and in what circumstances a Bidjara man would pass on information to a Mandandandji woman or about the type of information that would be. The evidence is an assertion that such a thing as womens' business exists but no evidence about its content or its normative quality. Under cross-examination, she said that womens' business was hunting and gathering. However, there was evidence throughout the hearing that men also hunted. When further pressed, about whether womens' business was passed on to her by her mother, she responded, 'How could she pass on something she didn't know?" The witness did then suggest that "birthing places" and "getting the young girls ready for marriage and all that" were womens' business and that women's places could be recognised by certain carvings on the caves. That evidence shows only a general knowledge about the topic. It does not demonstrate whether such birthing places are still used or if not, why they are not. There is no evidence that any place is used to prepare young women for marriage. There is no evidence of which particular places are womens' places for those activities; (g) Brendan Wyman in his statement referred to his first association with Carnarvon Gorge in the 1980's when he came into possession of a sandstone artefact that was identified by Rusty Fraser as "women's business". He and his Uncle Stan were instructed by Rusty Fraser to take it to Graham Walsh (a European archaeologist) who was the "main bloke up there." He said that no women were asked to take the object back (as it needed to be taken back urgently) and that he gave it Graham Walsh and he does not know what happened to it after that. This evidence does not support that womens' business - which again in this evidence is vague and general - is observed as a shared norm within the claimant group. Whatever the soundness of the reasons for it, this evidence indicates that there is no longer any practice within the Bidjara that maintains what would have once been a strict division of men's and women's business. The nature and content of any continuing rules is unknown on the evidence. The evidence either operates at the level of mere assertion without supporting detail or is inconsistent with the continuation of any norm in this regard. 138 We note also the Court's finding at [652] in respect of Ms Mailman's evidence: I accept all of the State's submissions about these issues, to the extent they were dealt with in the evidence. Accordingly: (1) While "Keelen Mailman stated that "[o]ur law requires that no one take from the area any stones tools etc", the rule does not appear to have the necessary quality of obedience to constitute a norm. Ms Mailman herself takes tools etc from Mt Tabor to Iman country for inductions - she says she has "permission form the spirits and my elders" to do that; they never leave the keeper's hands - but the point is that the rule has given way to the demands of contemporary life. 139 And also at [654], in relation to the lack of detail in the witnesses' evidence about traditional law and custom: The same might be said of Keelen Mailman's evidence. She also spent a great deal of time with Uncle Rusty Fraser when he was older. While she said he had taught her "all the times of our people" the content or substance of what Ms Mailman was taught, apart from the location of Bidjara country, remains unclear. Given the balance of their evidence, this lack of detail cannot be inferred to be the result of cultural sensitivity. The inference which must be drawn is that the detail is simply not known. 140 At [672] the Court explained its conclusions in relation to the Bidjara applicant's claim in summary: For the reasons given above I am not satisfied that the requirements of s 223 of the NTA have been met by the Bidjara. I accept that Carnarvon Gorge and Carnarvon National Park was Bidjara country at sovereignty with the Bidjara people having rights and interests in that land arising from their recognition, acknowledgment and observance of traditional laws and customs in connection with that land. However, I am not satisfied that the people who now identify as Bidjara possess rights and interests under traditional law and customs which give them a connection with the land and waters of the overlap area because I am not satisfied that any body of traditional law and customs, as opposed to attenuated or transformed fragments of law and customs, have continued. While there continues to be a body of people who have maintained their identity as Bidjara, the connection of the Bidjara to the land and waters of the claim area including Carnarvon Gorge and Carnarvon National Park is not a connection which has as its source traditional law and custom. As noted earlier, these conclusions concern the requirements of the NTA. They say nothing about the fact of Bidjara identity or the existence of contemporary Bidjara society. Equally, these conclusions say nothing about the value of Bidjara efforts to continue, revive and protect aspects of Bidjara culture. 141 In the orders published with the Court's reasons in Wyman (No 2), the State was given a time period in which to indicate to the Court whether it wished to apply for a negative determination in relation to the overlap area. The State did so, and on 21 February 2014, the Court found that it was appropriate to make, and made, a determination that native title did not exist in relation to the overlap area: Wyman (No 4). The negative determination in Wyman (No 4) was made as a consequence of the Court's reasons in Wyman (No 3) that it was appropriate to make the proposed negative determination in the circumstances. 142 In Wyman (No 3) at [3], the Court found that the fact that the Bidjara claimants were not legally represented, and that the "balance of the claim may lead to different conclusions about other land" did not weigh against the State's submission. The "balance of the claim" was a reference to that part of the Bidjara #6 claim which was outside the overlap area, and therefore, to land that included the Mace land. However, in Wyman (No 3) the Court emphasised it was dealing only with a proposed negative determination in relation to the overlap area which had been the subject of the findings at trial. At [4]-[5], the Court made it clear that it did not consider, in contrast to earlier decisions such as Wongatha at [4005]-[4007], where a negative determination was refused, that alternative claimant applications were "conceivable". 143 The Court's findings in Wyman (No 2) were not disturbed on appeal: Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; 235 FCR 464. The Bidjara People were represented by senior and junior counsel on the appeal. 144 At [290]-[291], the Full Court relevantly stated: In this case the difficulties in showing the continued operation of a traditional normative system are not merely that a certain number of the indicia of the classical sovereignty society have been lost or abandoned, but, more significantly, that the contemporary Bidjara society cannot be defined by reference to a group of people who today adhere to a body of traditional laws and customs. These proof difficulties are not overcome by noting that Professor Sutton accepted that the Bidjara continue to share such concepts as communal interests in country and the inalienability of country. These concepts are no doubt important. Without them, it would perhaps be impossible to prove a continuing traditional normative system. But of themselves they do not remove the need for claimants to prove a system of traditional laws and customs they adhere to and under which it is said rights and interests are possessed. In respect of the Carnarvon Gorge, the Bidjara also emphasise that Professor Sutton's initial report explained that he found the evidence as to the Bidjara people exercising "custodial rights in heritage" at Carnarvon Gorge since the 1960s "wide ranging and convincing". This may suggest the exercise of what might, for general purposes, be described as custodial rights - a right to protect sites, by law and custom, in that area. The question though is whether such a right has been demonstrated to be one currently possessed under traditional Bidjara law and custom. (Original emphasis.) 145 At [456]-[502], the Full Court also dismissed the ground of appeal, raised by the Brown River appellants, relating to the making of a negative determination. At [501], the Full Court concluded: Indeed, we consider that, in the circumstances, it was appropriate, if not inevitable, that a negative determination should have been made once each of the three claims failed on the basis that they did, and there was no suggestion there was any other group traditionally associated with the overlap area the subject of the claims. 146 Finally, it remains to set out the subsequent procedural history of the Bidjara #6 proceeding, being the claim over land and waters outside the overlap area. On 16 December 2015 the State of Queensland filed an interlocutory application seeking orders that summary judgment be given against the applicant or, alternatively, that the proceeding be summarily dismissed. On 5 July 2016, the Court ordered that the Bidjara #6 claim be summarily dismissed as an abuse of process: Wyman 2016. Leave to appeal from that decision was refused, although the basis for that refusal was in substance a want of prosecution of the leave to appeal application: Waterton on behalf of the Bidjara People v State of Queensland [2017] FCA 633. 147 At [47] of the Court's reasons for summarily dismissing the Bidjara #6 claim, the Court found that the question of whether an issue estoppel or claim of abuse of process may be raised or should succeed: … is to be answered by reference to the findings in Wyman No 2 and Wyman FCAFC which led to dismissal of the Bidjara 6 claim to the extent it related to the overlap area; comments made regarding the negative determination do not alter the position as to abuse of process or estoppel one way or another. 148 The Court concluded at [50]: For these reasons, I consider that the continuation of Bidjara 6 and 7 involves an abuse of process and, in the circumstances, that abuse would be manifestly unfair to the State of Queensland (which has already litigated the issue and succeeded) and would tend to bring the administration of justice into disrepute in a manner that should not be permitted. Weighing these matters against the interests of the claim group, all that can be said is that the claim group no doubt do wish to have another opportunity to argue that they are a society united in their acknowledgment and observance of traditional laws and customs, but it cannot be denied that the claim group has had and took the full opportunity to argue this claim; a claim which was considered and rejected on the merits following consideration of extensive evidence, a lengthy hearing, and an appeal. The abuse of process, accordingly, should not be permitted to continue.
The relevance of the previous Bidjara proceedings to the Mace land 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. 153 It is important to emphasise, as the Court did in both Wyman (No 2) and Wyman (No 3), that the Court must deal with the statutory construct created by the NT Act. Just as with the previous decisions made in relation to the Bidjara claims, these reasons do not purport to say anything about the self-perception and identification of the Bidjara People. Nor do the Court's findings say anything about the ongoing efforts of the Bidjara People to preserve their culture and knowledge, or to protect their country outside the strictures of the NT Act. To a considerable extent, the fracturing of the traditional law and custom of Bidjara society, and the resulting disappearance of much traditional knowledge, is a result of white settlement, and the dispossession which came with it. This Court can and should acknowledge those likely causes, but it does not alter the conclusion which must be reached under the terms of the NT Act on this non-claimant application. 154 Therefore, the Mace applicant has discharged its burden of proof that no native title exists in the Mace land.
Resolution: The Darkinjung application 155 We adopt the same approach in relation to the preconditions to the Court's power arising, and the weight that should be given to the absence of any responses to the non-claimant application notifications in relation to the Darkinjung land, as we have taken on the Mace application: see [114]- [117] above. The matters in this category include (and form part of the agreed facts on this application): (a) there is no approved determination of native title over any part of the application area; (b) no claimant application was filed during the notification period in relation to any part of the application area, nor has any application subsequently been filed; (c) no person or group has sought to be joined as a respondent to assert a native title interest defensively in relation to any part of the application area; (d) a registered claimant application was made in relation to an area including the application area, and was discontinued, before Darkinjung's non-claimant application was filed; (e) NTSCORP performed its notification function in relation to Darkinjung's non-claimant application, and cannot identify any person or group who might hold native title in the application area; and (f) there is no evidence of any dispute within the local Aboriginal community about the non-claimant application (including the absence of any dispute within Darkinjung's constituents, which is of course a broader group than any potential native title holders). 156 Those matters take the application some way, but do not of themselves discharge the Darkinjung applicant's burden of proof in circumstances where there is evidence of a previous native title application made over the land the subject of this non-claimant application. 157 However, the weight to be given on this application to the absence of any responsive claims is substantially increased by Ms Holt's evidence (at [10]-[11] of her affidavit): I am aware based on information previously provided to me by George Tonna and former NTSCORP staff member, Mr Peter Schultz, Senior Notifications and Land Tenure Officer, that George Tonna maintains a database of persons who may assert native title rights and interests in different locations around NSW and the ACT for the purposes of performing NTSCORP's notification function. On or around 4 April 2019, George Tonna informed me that the only persons or organisation listed in his notification database for the area the subject of the Darkinjung Non-Claimant Application was the Darkinjung Local Aboriginal Land Council. 158 This evidence, read with [47] of the agreed statement of facts, is probative of the fact that, at the time this non-claimant application is being decided, no person or group has made it known to the relevant representative body that any native title exists in the non-claimant application claim area. The functions of the representative body under the NT Act mean that it is the kind of organisation that it is reasonable to expect such people to approach, if they assert a native title interest. They might approach such a body for research assistance, for funding, or simply to seek support in understanding how to make a claim for native title. There is no suggestion in the evidence that there were any particular barriers for Indigenous people in New South Wales in approaching NTSCORP. In particular, there is no evidence there are any barriers to those who may have previously asserted native title rights and interests in the Darkinjung Local Aboriginal Land Council area informing NTSCORP that they intend to make further claims, or that they wish to oppose this non-claimant application. Indeed, Ms Holt's evidence about the role played by NTSCORP suggests the contrary. 159 Those inferences are strengthened by Mr Walkley's evidence about the communications between the Darkinjung applicant (through his firm) and NTSCORP about this application. 160 On 25 March 2019, Mr Walkley sent a letter to Ms Holt, which relevantly stated: NTSCORP Ltd was recently joined as a respondent to this proceeding by consent on the basis that its interests as a body funded pursuant to section 203FE of the Native Title Act 1993 (Cth) ("NTA") might be affected by a determination in the proceeding. Could you please confirm whether NTSCORP Ltd, in exercise of its functions under sections 203BG and 203BJ NTA, (a) gave notice of our client's Form 2 to any persons or groups, or (b) what steps it has otherwise taken in the exercise of those functions, aside from applying to be joined? We give notice that this letter, and any response NTSCORP Ltd provides, is intended to form part of Darkinjung LALC's evidence in the proceeding. As such, we would be grateful if NTSCORP Ltd could provide a response to this letter by 3 April 2019 (noting that Darkinjung LALC must file its evidence and submissions by 5 April 2019). 161 On 3 April 2019, Ms Holt responded, indicating that NTSCORP had not, contrary to what was required, received any notification from the NNTT about the Darkinjung non-claimant application (but in fact NTSCORP had been notified of the application as required on 8 October 2018). However, she also stated: NTSCORP Limited will now also write to persons who may assert interests in the area subject of Darkinjung's non-claimant application to notify them of the non-claimant application and inform them of the process for seeking to join the proceedings outside of the notification period should they wish. 162 As it turned out, and as Ms Holt herself has deposed, NTSCORP had no persons other than Darkinjung itself on its records as persons who might assert native title rights and interests in the area of this non-claimant application. That appears to be the case despite the existence of a previous native title application to which we refer below. 163 We accept the submissions made by the Darkinjung applicant at [12] of its further submissions: The reasoning of the plurality in Badimia FC (at [59]) concerning the nature of the NTA scheme for determining applications and the significance of notification of an application under the Act underscores why any different approach is not open: By a variety of provisions (including ss 13(3), 61, 66(3), 66(10)(b), 67, 68, 84(3), 84(5), 213(1) and 225), the Native Title Act encourages all persons with a proper interest in the resolution of the native title rights and interests in relation to any particular area of land to ensure that their interest is able to be taken into account where any application in relation to that area of land is made. If the assertions made in a prior registered claim are pressed by any party, then that can be the subject of evidence in the non-claimant application and tested in the usual way. Because of the "once and for all" nature of the determination the Court is asked to make, the obligation lies upon the person who asserts the native title interest to take steps to ensure their asserted interest is taken into account - by making a claimant application or by joining as a respondent to assert native title defensively. As the plurality went on to note at [75]: If a person or group fails to avail themselves of the opportunity to give notice to the Court and be joined as a party, no procedural fairness obligation can arise in relation to such a person or group. Requiring a non-claimant to address a discontinued claimant application as if it were still pressed is fundamentally at odds with the scheme of the Act. (Original emphasis and footnote omitted.) 164 While issues of resources, access to notifications and the like might explain why individual members of a discontinued or withdrawn native title claim may not come forward in a timely way to respond to a non-claimant application, those factors do not explain the complete absence of information held by NTSCORP that any person, at the time of this non-claimant application, may assert native title rights and interests in the non-claimant application area. Nor does it explain that there was not a single person identified by NTSCORP in the searches it undertook after receipt of the non-claimant application notification from Darkinjung's solicitor. It is unclear, for reasons we explain below, why the Awabakal and Guringai People did not appear in NTSCORP's records so as to prompt a notification to them. This evidence contributes to an inference that whatever might have been the situation in the past, the situation at the time this non-claimant application falls to be decided is that there are no persons or groups who assert native title rights and interests in the claimed land. 165 As Darkinjung submits, some weight can also be given to the fact that a number of non-claimant applications have been notified in accordance with the NT Act since the discontinuance of the Awabakal and Guringai People's claim (Awabakal and Guringai People v Attorney General of New South Wales (NSD780/2013)), in relation to lands and waters within the external boundary of that claim, without any assertion of native title in response. This is the fifth of those non-claimant applications. If those who brought the Awabakal and Guringai People's claim have not come forward by now, it is reasonable to infer those people no longer assert native title continues to exist in the area claimed in this non-claimant application. 166 We also accept the Darkinjung applicant's reply submission that, contrary to the submissions of NTSCORP, this is not a situation where there is evidence of compliance only with "formal" or "procedural" requirements, nor is it a situation where there is an "evidentiary vacuum" or "silence". There is a range of evidence before the Court which, together, is sufficient to prove on the balance of probabilities that no native title exists in the land subject to the non-claimant application. That some of that evidence consists of communications seeking responses from putative native title claimants and the absence of any positive responses is not "silence", or a "vacuum". It is evidence of no person or group coming forward to assert native title.
The Awabakal and Guringai People's claim 167 The following findings are made largely on the basis of the agreed statement of facts. 168 All of the 28 parcels claimed in this non-claimant application are within the external boundary of the Awabakal and Guringai People's claim, which was filed in May 2013. 169 The claim passed the registration test and was entered on the Register of Native Title Claims on 13 June 2013. All of the parties to this non-claimant application were respondents to the Awabakal and Guringai People's claim, including of course Darkinjung itself. 170 Pursuant to orders made by the Court on 14 October 2013 and 23 June 2014 that connection material be supplied to the State, it can be inferred a process was undertaken to determine whether the State of New South Wales would agree to a consent determination over the claim area. The State was required to inform the parties about its position by 12 December 2014. The State advised the then applicant and other respondent parties such as Darkinjung that the applicant's connection material was not sufficient for the State to be satisfied of connection to the claim area. The matter remained in case management without any apparent change to the State's position for more than two years. The evidence does not disclose what, if any, further discussions occurred between the applicant and the State during that period. 171 However, on 30 May 2017, the Awabakal and Guringai applicant filed an interlocutory application seeking to discontinue the Awabakal and Guringai People's claim. We note no solicitor from NTSCORP was acting for the Awabakal and Guringai applicant; instead a private practitioner was acting for the applicant. In the supporting affidavit to the interlocutory application, the solicitor for the Awabakal and Guringai applicant deposed that: (a) the Attorney-General had determined that a "non-native title settlement" was not considered to be appropriate in the circumstances, and that should the Awabakal and Guringai People's claim not be withdrawn "a litigated outcome would be sought"; and (b) the applicant in the Awabakal and Guringai People's claim was not able to progress the proceeding any further and did not have the means to seek a litigated outcome. 172 Prior to that interlocutory application being decided, Darkinjung informed the Awabakal and Guringai applicant's solicitor that it had provided to the Court for filing a non-claimant application in respect of land within the external boundary of the Awabakal and Guringai People's claim. The correspondence from Darkinjung's solicitor on 9 June 2017 was relevantly in the following terms: We wish to make you aware that Darkinjung Local Aboriginal Land Council (Darkinjung) has today forwarded to the Court for filing a non-claimant application for a determination of native title in relation to 15 parcels of land that it holds within the external boundary of the Awabakal and Guringai claim area. Further, it is likely that Darkinjung will commence other non-claimant applications in respect of property that it owns in that area in the near future. We note that the likelihood that Darkinjung would commence such applications has previously been raised with the Court at a directions hearing in this matter. The applications are necessary because of s 42 of the Aboriginal Land Rights Act 1983 (NSW). We write to give you notice of the non-claimant applications to ensure that the applicant is aware of them before moving on its Notice of Motion. 173 This communication could not have been clearer and was entirely fair and proper. Darkinjung was putting the (then) current native title claimant on express notice of its non-claimant application in the area of the (then) native title claim. It was making clear the risks faced by the Awabakal and Guringai People, in terms of any native title claim, if they pressed ahead with their discontinuance application. 174 There is no evidence the Awabakal and Guringai People had sought funding or other assistance from NTSCORP. We make no finding one way or the other. However, it would have been relevant for NTSCORP to depose to what occurred in respect of the Awabakal and Guringai People's claim from its perspective as a representative body for the region. 175 What this course of events demonstrates is that those Aboriginal people with an existing native title claim in an area including the non-claimant application area were expressly informed that there were, in June 2017, present risks that they could lose any opportunity to prove their native title if they did not take action to continue to assert it. They did not. Instead, on 13 June 2017, the Awabakal and Guringai applicant moved on the interlocutory application and the Court made orders allowing for 14 days' notice of any objection to the discontinuance. No objections were filed and the Awabakal and Guringai People's claim was discontinued with effect from 28 June 2017. The non-claimant applications to which the 9 June 2017 letter from Darkinjung's solicitor referred were finalised and determinations were made that no native title exists in those areas: Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136; Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 76. The remaining non-claimant application foreshadowed in that correspondence is the present application. 176 One further series of events should be noted. There was a non-claimant application filed by Darkinjung in 2004 (proceeding number NSD1249/2004), where an individual (Ms Howie) was joined to the proceeding as a respondent. She claimed to be doing so "on behalf of the Guringai People". We note Mr Walkley's evidence is that Ms Howie was a member of the applicant in the Awabakal and Guringai People's claim. The Court's order joining Ms Howie as a party to the proceeding recorded that Darkinjung made no admission that the Guringai People were "the traditional owners", or that Ms Howie was authorised to represent them. Ms Howie withdrew as a party to the proceeding on 27 September 2005. There is no evidence as to why that withdrawal occurred. In any event, neither she, nor any member of her family, nor any other person identifying as Guringai, has sought to object to the proposed negative determination in this proceeding. The fact that around 15 years ago she did make an objection to another non-claimant application within the Darkinjung Local Aboriginal Land Council area casts no doubt on Darkinjung's contention that the Court can be satisfied no native title exists in the area covered by the non-claimant application in this proceeding. The bare fact of an objection that long ago casts no real doubt on Darkinjung's contention that no native title exists. 177 Although the evidence does not disclose all of the reasons or explanations for why it may have occurred, we are satisfied that those Aboriginal people who comprised the Awabakal and Guringai applicant elected to discontinue their native title claim in June 2017. They did so at a time they were legally represented, and on express notice that Darkinjung had filed a non-claimant application over an area within the external boundary of the Awabakal and Guringai People's claim, and planned to file more. We consider it is reasonable to infer that the fact of Darkinjung's ongoing non-claimant applications is likely to have been known to at least some members of the Awabakal and Guringai People's claim group, given Darkinjung is an Aboriginal Land Council, and given its obvious efforts to ensure its non-claimant applications are brought to the attention of all those who might have an interest in the land and waters concerned. We consider it is also reasonable to infer that NTSCORP acted professionally and in accordance with its statutory functions under the NT Act after it received Darkinjung's express notification of this non-claimant application, and it was unable to identify any person or group who, at the time of this non-claimant application, contended they held native title rights and interests in the non-claimant application land. 178 In that context, it is not to the point that NTSCORP asserts, through Ms Holt's evidence, that it has no funds for further research, having noted no anthropological report has yet been produced for the area subject to this non-claimant application. That might be relevant if there were individuals, or a group, asserting native title who had not been able to prepare material because of NTSCORP's funding issues. However, in this case, there was a registered native title claim. Although the Awabakal and Guringai applicant appears to have been privately represented, there must have been some connection material prepared, since the State examined it. The evidence does not reveal whether further connection material was prepared after 2014 when the State first informed the Awabakal and Guringai applicant the existing material was insufficient. As to what Ms Holt describes in her affidavit (at [15]) as NTSCORP's funding priority going towards research "primarily…directed towards proceedings which are or were before the Federal Court of Australia and which are or were represented and funded by NTSCORP…", there is no evidence how the conduct of the Awabakal and Guringai People's claim did or did not fit within such a priority. 179 This was not a situation, as NTSCORP sought to present it, where there was a complete absence of information such that the Court could not be confident no native title exists in the circumstances, because NTSCORP has insufficient funding to carry out research to identify potential native title holders. Rather, this is a situation where a claim was made, which passed the registration test, and which was voluntarily discontinued in the face of another non-claimant application, for reasons which were explained only at the general level of the applicant not being in a position to pursue a litigated outcome. Ms Holt's evidence about NTSCORP not having conducted any further research is of little weight in this situation. 180 NTSCORP's principal submission, both on the facts of this non-claimant application, and in principle, was that when asserting that native title does not exist in relation to an area, an applicant for a negative determination: … ought to adduce evidence from local Aboriginal People and/or groups that have a cultural association with, or traditional knowledge relating to, the Application Area or the region surrounding the Application Area. 181 This, it was submitted, was necessary to provide certainty "that the land is not of cultural or traditional importance to Aboriginal People". That is not the question posed by the NT Act, as the Bidjara decisions demonstrate. Land may well be of cultural or traditional importance to Indigenous people and yet native title may not exist over that land. We have rejected above any contention that it is always necessary for a non-claimant applicant to adduce evidence of the kind suggested by NTSCORP. The inflexibility that such a requirement would impose is inconsistent with the scheme of the NT Act, where few mandatory procedures or considerations are set out for the determination of a non-claimant application. It would also set the notification and joinder provisions at nought because, in effect, a non-claimant applicant would be required to adduce the kind of evidence that might otherwise be forthcoming through the joinder process. As we have noted now several times, each case will turn on its own facts and its own circumstances, and what is necessary, in respect of the particular land and waters concerned, to prove that it is more likely than not that no native title exists. 182 We are satisfied that Darkinjung has discharged its burden of proof that no native title exists in the land and waters covered by the present non-claimant application.
Conclusion 183 There will be a negative determination in each proceeding. There will be no orders as to costs. I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot, Griffiths and Mortimer.
Mace
State of Queensland
(1985) 1 NSWLR 561
(2007) 159 FCR 531
(1965) 114 CLR 164
(1971) 127 CLR 62
(1981) 52 FLR 95
In each proceeding the Court determined and declared that native title does not exist in relation to the identified land and waters; QSNTS was joined as a party in the Mace proceeding; no order as to costs in either proceeding.