Consideration
8 Section 253 of the Native Title Act defines "non-claimant application" as meaning a native title determination application that is not a claimant application. A "claimant application" is further defined by s 253 as:
…a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.
9 Section 61(1) of the Native Title Act sets out a table of applications which may be made under Part 3 Div 1 of the Native Title Act. In relation to applications referred to in s 13(1) of the Native Title Act, for a determination of native title in relation to an area for which there is no approved determination of native title, persons who may make such an application include:
(2) 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;
10 I note an affidavit affirmed on 5 May 2023 by Ms Jessica Rusten, the lawyer with day to day carriage of this matter for the applicant. Ms Rusten relevantly deposed as follows:
5. The Applicant is the registered proprietor of the Land. A copy of a title search obtained on 24 May 2022 for Lot 6 on Crown Plan MX75 is annexed and marked Annexure JKR3.
6. The Land has never been the subject of an approved determination of native title, nor any native title claimant applications. A copy of an email from the NNTT to my colleague Vanja Serbedzija dated 25 May 2022 is annexed and marked Annexure JKR4.
7. On 5 May 2023, I reviewed the electronic copy of the file on the Commonwealth Courts Portal website maintained by the Federal Court of Australia and observed that no claimant applications have been filed in the proceedings.
11 I am satisfied that the applicant has a non-native title interest in the Land.
12 It follows that the application before the Court is a non-claimant application within the meaning of ss 61 and 253 of the Native Title Act.
13 On 8 June 2023 the State filed a notice under s 86G of the Native Title Act. This section provides:
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.
14 As I noted earlier, the only active respondents are the State Minister for the State of Queensland and State of Queensland, who have notified the Court in writing that they do not oppose an order in, or consistent with, the terms sought by the application.
15 This application is consequently unopposed within the meaning of s 86G(1)(a) of the Native Title Act.
16 The Court has the power to make an order pursuant to s 86G in the terms sought by the applicant by way of a negative determination without holding a hearing, provided that the application is unopposed, the Court is satisfied that an order in the terms sought is within the power of the Court, and the Court considers it appropriate to make the relevant orders.
17 The note to s 86G(1) relating to the requirement that the Court's order complies with s 94A, is referable to the matters mentioned in s 225 of the Native Title Act. Materially, s 225 defines a "determination of native title" as a determination whether or not native title exists in relation to a particular area of land or waters.
18 In Mace and Others v Queensland (2019) 375 ALR 717; [2019] FCAFC 233 the Full Court held at [44]:
….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?
19 In Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 Jagot J (who was a member of the Full Court in Mace) explained the decision in Mace in the following terms:
10. The Full Court of the Federal Court recently considered non-claimant applications under the NTA in Mace v Queensland [2019] FCAFC 233; (2019) 375 ALR 717 (Mace). The following propositions are established in Mace, including principles established by an earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi):
(1) The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].
(2) The reason for a non-claimant application does not govern the Court's approach to the exercise of the power: [42].
(3) Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].
(4) The overriding proposition is that each case must be assessed on its own particular facts: [47].
(5) Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48].
(6) The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52].
(7) All issues are to be assessed on the usual standard of proof in civil litigation - proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].
(8) A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].
(9) The provisions of the NTA 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 native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]-[60].
(10) In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].
(11) In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a "prima facie" position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].
(12) The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, WLALC.
(13) In a non-claimant application 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 NTA: [66].
(14) No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any 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 a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].
(15) If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].
(16) The Court's task is not to be more or less "stringent" depending on the kind of case before it but is to 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: [82].
(17) The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land 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. The quality of such evidence, rather than its extent, will be determinative: [97].
11. The non-claimant application in the present case is to be decided consistently with these propositions. Most importantly, the case is to be decided on the whole of the evidence which has been adduced. The question is whether, having regard to all of the evidence, WLALC has proved on the balance of probabilities that there is no native title in the land…
20 I respectfully adopt this summary.
21 Turning to the present application before the Court, I note the following facts and circumstances.
22 First, in respect of the Land there is no approved determination of Native Title. Previous claims referable to the Land were either dismissed or discontinued. It is not in dispute that the notification period has ended, that no relevant entries over the Land have been recorded in the Register of any native title claims, that no party other than the active respondents appeared, and that the relevant representative has made no submissions and filed no evidence referrable to any assertion of native title.
23 Second, the active respondents do not oppose an order in, or consistent with, the terms sought by the applicants.
24 Third, QSNTS was the legal representative in three previous applications made by the Bidjara People, and was also actively engaged in the matter of Mace. In such circumstances it would be reasonable to expect that there would have been some level of active, and proactive, engagement by QSNTS with this non-claimant application in the event that it had any knowledge of potential native title holders for the Land. QSNTS has not engaged in this proceeding. No other named respondent opposes the order sought.
25 I am satisfied that, on the balance of probabilities, the applicant has established that there is no native title in the Land.
26 It follows that the Court has power to make the negative determination sought in this non-claimant application.