Moller v State of Queensland

1. Native title does not exist in relation to the land which comprises Lot 11 on Crown Plan CNA 95 and Lot 12 on Crown Plan CNA 90, in the State of Queensland. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNETT J 1 The applicant applies under s 61 of the Native Title Act 1993 (Cth) (the Act) for a determination of native title under s 13 in relation to two parcels of land situated in Queensland (the subject land). The application is what is commonly described as a non-claimant application, and seeks what is termed a negative determination. That is to say, the applicant is a person who holds a non-native title interest in the subject land and seeks a determination that no native title rights or interests exist in it. 2 The land is described as Lot 11 on Crown Plan CNA 95 (known as Garfield) and Lot 12 on Crown Plan CNA 90 (known as Hollywood), in the Local Government Region of Barcaldine Council. It is approximately 25 km north of the township of Jericho, which is in Queensland between Longreach and Emerald. According to the maps annexed to the application, the Garfield holding comprises around 21,100 ha and the Hollywood holding around 23,400 ha. 3 A non-claimant application for a determination of native title can only be made, under s 61(1) of the Act, in relation to an area of land for which there is no approved determination of native title. Searches by the parties have confirmed that the subject land was covered by two native title claims made on behalf of the Bidjara people (discussed below), both of which were dismissed. There is no current determination of native title covering the subject land and no extant claim in relation to it. 4 Under s 86G(1) of the Act, where an application is "unopposed", the Court may make an order consistent with the terms sought by the applicant without holding a hearing if it is satisfied that the order is within the power of the court and appropriate to be made. That subsection is as follows: 86G Unopposed applications Federal Court may make order (1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66: (a) the application is unopposed; and (b) the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court; the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involved making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). 5 There is evidence that the applicant holds a leasehold interest under Queensland legislation in each of the parcels comprising the subject land. The present application is therefore one that can be made under s 61(1). 6 The only respondent to the application is the State of Queensland. It has filed a notice under s 86G(2) of the Act stating that it does not oppose the orders sought by the applicant. The State also filed written submissions confirming and supporting that position. The application is therefore "unopposed" as defined in s 86G(2). 7 The power to make an order without holding a hearing under s 86G(1) arises after the end of the period specified in the notice given under s 66 of the Act. Section 66 requires the Native Title Registrar, when given a copy of an application that has been filed in the Court, to provide copies of the application to the relevant State or Territory Minister (s 66(2)) and to the representative bodies for the area covered by the application (s 66(2A)). Evidence before the Court confirms that this has been done. Section 66 also requires the Registrar to give notice of the application to the persons referred to in s 66(3)(a) to (c) and to notify the public in the manner determined for the purposes of s 66(3)(d). Evidence before the court also confirms that this has been done. 8 The notice given under s 66(3) is required by s 66(8) to specify a day as the "notification day" for the application. Pursuant to s 66(9) that day must be a day by which, in the Registrar's opinion, it is reasonable to assume that the s 66(3) notices will have been received by, or come to the attention of, the persons those provisions require be notified. The notices given in the present case specified the notification day as 29 June 2022. The application was publically notified in the Koori Mail on 15 June 2022 and the Longreach Leader on 17 June 2022. Evidence before the Court provides that the other persons required to be notified had been sent a notice prior to those dates. The notice was also required (by s 66(10)(c)) to state that a person who wants to be a party in relation to the application must notify the Court within the period of three months starting on the notification day. The notices issued in the present case included a statement to this effect. The period specified in the notices ended on 28 September 2022. The temporal precondition to the exercise of power under s 86G(1) is therefore satisfied. 9 As mentioned earlier, the only respondent to the application is the State of Queensland, which does not oppose the order sought. Neither the representative body for the area (Queensland South Native Title Services (QSNTS)) nor any other party has filed an application to become a party to the present application. However, a determination of native title is not an ordinary inter partes question and the lack of opposition is not determinative in itself. For an order to be made under s 86G(1), the Court must be satisfied that the order is within the Court's power and it is appropriate to make the order without holding a hearing. 10 The requirement for the Court to be satisfied that a proposed negative determination is "within the power of the Court" means that the Court must be satisfied, on the material before it, that native title does not exist in the subject land. It was said in Mace v Queensland [2019] FCAFC 233; 274 FCR 41 (Mace) at [42]-[44] (Jagot, Griffiths and Mortimer JJ) that a non-claimant applicant must establish "the same kinds of matters" whether the application is decided under s 86G(1) or is contested: the absence of a contradictor in the former case is a forensic difference, not a legal one. These statements are obiter (in that the applications in Mace were not dealt with under s 86G), but are carefully considered dicta by a Full Court in a leading case concerning non-claimant applications under the Act. Mace has been treated by single judges as establishing that "[t]he 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?" (Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1506 (Deerubbin) at [14(b)] (Griffiths J); see also Murphy v Queensland [2021] FCA 81 at [26]-[27] (Collier J)). 11 I therefore proceed on the basis that, despite the absence of any party adducing evidence or making submissions in support of the existence of native title, the applicant must establish that native title does not exist. That must be shown according to the usual civil standard of proof (Deerubbin at [14(c)]). Appropriate inferences may be drawn from the absence of any opposition (especially from the relevant representative body) despite notice of the application having been given, but the strength of those inferences depends on the circumstances of the case (Deerubbin at [14(i)]; Mace at [94]). 12 The parties in the present case have not advanced any submission that native title in the subject land has been extinguished, including by the grant of interests of the kind currently held by the applicant. Instead they submit that it can be inferred that no persons now have the necessary connection with the land to sustain native title rights or interests. In my view that inference can properly be, and should be, made. This is for two reasons. 13 First, the subject land and the region of Queensland in which it is situated have been the subject of native title claims which were unsuccessful. (a) Fraser on behalf of the Bidjara People (No 5) v Queensland (the Bidjara People No 5 claim) involved a claim area that included the subject land. The claim was filed on 28 September 2006 and dismissed on 18 May 2007. (b) Waterton on behalf of the Bidjara People v Queensland (the Bidjara People No 7 claim) was filed on 5 November 2012. Its claim area also included the subject land. It was summarily dismissed by this Court in a judgment reported as Wyman on behalf of the Bidjara People v Queensland [2016] FCA 777 (Jagot J) (Wyman 2016). The basis for that dismissal was the determination by the Court, in a series of judgments concerning another claim (the Bidjara People No 6 claim), that (put shortly) the Bidjara people had not proved the continued existence of a society bound by traditional law and therefore had not demonstrated that they held any native title rights. An appeal from the judgment dismissing the Bidjara People No 6 claim was dismissed: Wyman v Queensland [2015] FCAFC 108; 235 FCR 464 (Wyman 2015). The Bidjara People No 6 claim concerned an area of land adjacent to that covered by the Bidjara People No 7 claim, most of the applicants in the two claims were the same and the apical ancestors relied on were the same. Hence, it was held in Wyman 2016, the Bidjara People No 7 claim could not succeed without reversing findings made between the same parties in dismissing the Bidjara People No 6 claim. 14 It should be noted that Jagot J in Wyman 2016 based her decision on concepts of abuse of process, and stopped short of a finding that the Bidjara People No 7 claim had no reasonable prospect of success (at [59]). It was unnecessary to decide that point and it appears that there was a body of further evidence in that case which counsel, having been briefed late, was not able to address. Nevertheless, it follows from the judgment in Wyman 2016 that any application in this Court in respect of the subject land by the claimants in the Bidjara People claims (or a subset of them) would be dismissed. Further, and despite the appropriate reticence of Jagot J, her Honour's decision and that of the Full Court in Wyman 2015 mean that one can be satisfied, on the balance of probabilities, that a native title claim brought by any other persons claiming connection with the land through membership of the Bidjara people would not succeed. 15 This claim history is part of the background against which the second reason arises why the inference can safely be drawn that no persons now hold native title rights in the subject land. Neither QSNTS nor any potential native title claim group has sought to be made a party to the present proceeding. The claim history (which includes competing claims over an "overlap area" in the litigation leading to Wyman 2015) means it can be inferred that any non-Bidjara persons who believed that they might have traditional rights in the land would have given close consideration to that issue and would either have asserted that claim or (at least) become known to QSNTS. That no potential claimant has come forward in response to a notice published in newspapers (as happened in the present case) may well not be a very powerful factor in itself (see Mace at [65]). However, the Court in Mace also referred to the important statutory role of the representative body (including identifying, so far as practicable, persons who may hold native title) and the potential significance, for that reason, of there being no response by the relevant representative body when it is notified of a non-claimant application under s 66 (at [85]-[86], [94]-[98]). Here, the proceedings in relation to the Bidjara people's claims make it highly likely that, if there were any potential native title claimants in relation to the subject land, they would be known to QSNTS and it would take steps to protect their interests. 16 This combination of factors is similar, but not identical, to one of the proceedings determined by the judgment in Mace. That case also involved land that had been the subject of claims made by the Bidjara people, and the Court gave greatest weight to the existence and content of the decisions in the previous Bidjara proceedings (at [118]). The Court also gave "some", but clearly not determinative, weight to the fact that there had been no responses to the notices issued under s 66 (at [116]). However, that was in circumstances where QSNTS had belatedly applied to be joined to the proceeding and filed an affidavit, sworn by one of the former Bidjara claimants, deposing (among other things) that the notices had not come to her attention. That has not occurred here. Indeed Mace itself, given its connection with the Bidjara people claims and the involvement of QSNTS, now forms part of the factual background against which the absence of other parties is to be understood in the present case. 17 I am therefore satisfied that the applicant has made out its claim on the balance of probabilities. 18 The last point to note in relation to the "power of the Court" to make the proposed orders is that, by s 94A of the Act, an order containing a determination of native title must set out details of the matters referred to in s 225. The matters set out in s 225 are aspects of native title rights if they exist (their nature and extent, who the holders are, etc). These matters need not be spelled out in a case where the determination of the Court is that no such rights exist in the relevant land (see eg Deerubbin at [31(h)]). 19 The question of appropriateness bears a different aspect in relation to a non-claimant application, as compared to a determination on a claimant application made by consent under s 87 (or one made under s 86G where the only respondent is the State). In the case of a determination made by consent that native title exists, the Court will necessarily concern itself with the quality of consent; in particular, whether the State in its capacity as guardian of the public interest has given an appropriate degree of scrutiny to the claims of the applicant before agreeing to the making of a determination that operates in rem (see eg Ryan (Snr) on behalf of the Warrgamay People v Queensland [2021] FCA 977 at [23]-[24] (Murphy J) and the cases cited there). In the case of a non-claimant application dealt with under s 86G, where notice has been given in accordance with s 66, no party has come forward to assert that native title exists, and the Court is satisfied that the proposed orders are within its power, the Court will at least usually be able to be confident that there is no reason not to make the orders sought. While the discretion to withhold relief clearly exists according to the terms of s 86G(1), the cases in which it would be exercised would be "rare indeed" (Mace at [73]). No reason arises from the material before me why it is not appropriate to make the proposed order. 20 I will therefore make orders in the terms sought by the applicant. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.