Prow v State of Queensland

Background 5 As deposed to in WWKP at [3], the Land is a parcel of approximately 40,400 hectares. The entire area of the Land is owned by the applicants and is currently being used for the purpose of grazing cattle (WWKP at [9]-[10]). There are two watercourses which traverse the Land, being Monamby Creek and Quilberry Creek (Watercourses) (WWKP at [12]). 6 On 20 August 1997, the applicants became the registered lessee of the Land after acquiring the lease for the Land from the then registered lessees, Kathleen Mary Mulligan and Gerard Thomas Mulligan (WWKP at [7]). The lease over the Land is a Term Lease 71366053 on Title Reference 176642089, being a rolling term lease for no defined purpose (WWKP at [6]). The Lease was originally granted to Reginald Warwick Green on 1 April 1964 for a 30 year term ending on 31 March 1994. The Lease was subsequently extended to 31 March 2047 and has been transferred a number of times (WWKP at [7]). 7 On 24 June 2018, the applicants lodged an application with the then Department of Natural Resources, Mines and Energy, now the Department of Resources, for the conversion of the Lease to a freehold interest. 8 On 21 July 2020, the Department presented the applicants with an Agreement to Offer Conversion of the Lease, subject to certain conditions that are required to be satisfied prior to the Land being converted to freehold. These conditions include a requirement for the applicants to provide written advice to the Department as to how they will address native title with respect to the proposed freehold grant either by way of negotiation and registration of an indigenous land agreement, or by way of filing a non-claimant application with this Court resulting in a determination that native title does not exist. 9 Section 86G of the NTA provides that: 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 involves 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). Meaning of unopposed (2) For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant. 10 The principles applicable to the consideration of a non-claimant application under s 61 of the NTA were recently addressed in Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717, where regard was also had to earlier principles established in the Full Court decision of Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320. While the non-claimant applications in Mace were unopposed, as stated in the summary of the principles below, the legal question remains the same whether or not there is a contradictor to the application. 11 The principles in Mace have been helpfully summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10]. There is no need to repeat that summary here. 12 The key questions for determination are whether the orders sought by the applicants are within the power of the Court, and whether it is appropriate for the Court to make those orders. On the facts before this Court both questions are answered in the affirmative, having regard to the principles articulated by the Full Court in Mace and the subsequent application of those principles in such cases as Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1507 and Murphy v State of Queensland [2021] FCA 81.

Power of the Court to make the determination 13 In respect of whether the orders sought are within the power of the Court, the Federal Court of Australia has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title, and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court (NTA s 81). A "determination of native title" is a determination as to whether or not native title exists in relation to a particular area (NTA s 225) and includes a negative determination of title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466. 14 The non-claimant application was filed pursuant to s 13(1)(a) and s 61(1) of the NTA and it is not in dispute that notice was given of the application as required by s 66(3) of the NTA. There has been no approved determination of native title in relation to the Land to date. There is also no dispute between the parties that the prescribed notification period under s 66(10)(c) came to an end on 24 May 2021, and that no Form 5 party applications have been filed in the proceeding. Therefore, there are no persons who oppose the non-party application. Further, on 1 June 2021, the National Native Title Tribunal (NNTT) confirmed that there were no relevant entries on the Register of Native Title Claims that fall within the external boundary of the non-claimant application area (PWS at [11]-[12]). As the order sought is within the power of the Court, the question that follows is whether I am satisfied on the evidence which is before me that the proposition that native title does not exist has been made out to the relevant civil standard: Mudgee Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 668 at [8].

Appropriateness of the order sought 15 The onus rests on the applicant to substantiate its claim for a negative determination: Worimi at [74], cited in Wagonga at [10] in Proposition (12). Each case must be assessed on its own facts, including the nature of the land and tenure involved, the presence or absence of any native title claims (including previous claims), and any evidence adduced by the parties: Mace at [48], cited in Wagonga at [10] in Proposition (5). 16 In this case, the uncontested evidence before the Court is that searches conducted with, and information provided by, the NNTT have established that there is no previous determination of native title in the Land and that there is no current application in relation to the Land (PWS at [3]). There were six historical native title claims over the Land to which I will return. 17 The evidence also discloses that several enquiries were made with the representative body for the area covered by the non-claimant application, being Queensland South Native Title Services Limited (QSNTS) (PWS at [14]-[17]). QSNTS has not responded to those enquiries (PWS at [18]) and has not sought to be joined to this proceeding on behalf of any potential native title claimants. 18 There is evidence of six historical claims to native title having been made in respect of the Land involving two different claim groups: the Bidjara People, and the Budjiti People.

The Bidjara People 19 Five of the previous claims over the Land were made by native title groups associated with the Bidjara People. The first (QC1997/001) was filed on 15 January 1997 and withdrawn on 4 November 1997. The second (QUD6156/1998 Bidjara People #3) was filed on 28 October 1997 and discontinued on 5 September 2008. The third (QUD370/2006 Bidjara People #5) was filed on 28 September 2006 and dismissed by the delegate of the Registrar of the NNTT on 5 April 2007. The fourth, (QUD216/2008 Bidjara People #6) was filed on 23 July 2008 and was dismissed by the Federal Court, in relation to an area of "overlap" within the claim area (the Overlap Area), on 6 December 2013, and as to the balance of the claim area, on 5 July 2016. The fifth (QUD644/2012 Bidjara People #7) was filed on 5 November 2012 and dismissed by the Federal Court on 5 July 2016. 20 Further, four cultural heritage sites have been recorded on the Land by the Bidjara People #7 (PWS at [18] and PWS-23). 21 In Mace, the subject land was overlapped by the Bidjara People claims, Bidjara #3 claim and Bidjara #6 claim. These claims previously overlapped the subject land in Mace (Mace Land). The Court's findings in Mace were also in respect of the Bidjara #7 claim. 22 The applicants submitted that the Court should take judicial notice of the findings in Mace where, in evaluating the nature and content of the Bidjara People claims, the Full Court held, at [121]: The difficulty for Ms Mailman, and for 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. 23 The matters referred to in [119] included details of conversations between potential native title holders, including whether there were senior claimants involved whose agreement might be necessary for a claim, whether appropriate research had been undertaken about the proposed composition of the claim group and, whether the land and waters claimed would be different to those claimed in the previous Bidjara claims. 24 The Bidjara People #6 claim was dismissed with respect to the Overlap Area in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229. In Mace, the Full Court held, at [152]: …the previous Bidjara proceedings, and in particular the outcome in the Bidjara #6 claim, are of considerable weight in the Mace applicant's case that no native title exists over the Mace land…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 make a negative determination in the overlap area. 25 Consistent with my decision in WG & DK Ryan Pty Ltd (Trustee) v State of Queensland [2021] FCA 499, and in circumstances where there is no evidence of an assertion of native title in the Land addressing the matters identified in Mace as matters which would need to be addressed in evidence to treat the Bidjara People claims as having any significant weight in the consideration of an overlapping non-claimant application, and in circumstances where no one from the Bidjara People has sought to be heard on this application, I am satisfied that there is no evidence of any substance that the Bidjara People maintain an interest of any kind in the Land. The existence of the cultural heritage sites are insufficient to displace this finding where the Bidjara People have been unable to prove continuity of connection with the land and waters they identified as Bidjara country.

The Budjiti People 26 The second group of people who have previously claimed an interest which overlaps the Land is the Budjiti People. The First Budjiti People claim (QUD6163/1998) was filed on 6 November 1997 in response to a non-claimant application and was accepted for registration on 26 April 1999. It was subsequently withdrawn to allow for the filing of the Second Budjiti People claim (QUD112/2004) on 1 July 2004. The Second Budjiti People claim did not overlap the Land. The applicants submit that this necessitates an inference that the Budjiti People made a deliberate decision that they did not claim title over the Land. The Second Budjiti claim was dismissed by the Federal Court on 30 March 2007. Following that dismissal, a Third Budjiti People claim (QUD53/2007) was filed on 20 February 2007. It overlapped the Second Budjiti People claim but did not cover the land in the Murweh local government including the Land. The Third Budjiti People claim was the subject of a consent determination: McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601. 27 In the circumstances, I am not satisfied that the mere existence of the First Budjiti People claim, being the only claim that overlaps the Land, without any evidence from the Budjiti People, and in circumstances where they have not sought to be heard on this application, weighs against the making of the determination sought by the applicants. I am satisfied that there is no evidence that the Budjiti People maintain an interest of any kind in the Land. 28 In the circumstances, I am satisfied that the applicants have discharged their onus of establishing, on the balance of probabilities, that native title does not exist over the Land.

Conclusion 29 The appropriate order is that native title does not exist over the Land. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington.

Associate: Dated: 8 December 2021 Schedule No: QUD7/2021 Federal Court of Australia District Registry: Queensland Division: General Applicant WILLIAM WALTER KEVIN PROW Applicant GAIL MARGARET PROW Applicant CHARLES WILLIAM PROW