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.