Taylor v State Minister for the State of Queensland

Statutory Framework 8 By s 13(1)(a) of the Act, an application may be made to the 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 include those who hold a "non-native title interest" in relation to the whole of the area in relation to which the determination is sought (s 61(1)). The applicants, by reason of the lease over the Land, hold such an interest (s 253). This category of native title determination application is defined by s 253 as a "non-claimant application". 9 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…" each of the matters mentioned in ss 225(a) to (d) of the Act. An order in which the Court makes a determination of native title must set out each of the matters mentioned in s 225 (s 94A). 10 The expression "native title" is defined by s 223(1) of the Act as follows: 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.

Notification of a non-claimant application 11 The Native Title Registrar must be given a copy of a non-claimant application, and any accompanying affidavit or prescribed document, as soon as practicable after it is filed in the Court (s 63). Thereafter, the Native Title Registrar is required to comply with the notification requirements in s 66 of the Act. 12 One aspect of this is the obligation to give a copy of the non-claimant application to the State Minister and the representative body for the area covered by the application (ss 66(2) and 66(2A)). Another is notification of the details of the non-claimant application to a range of persons, including any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body for the area covered by the application (s 66(3)(a)(i)-(iii)). 13 If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Court a written notice, within the period specified in the notice under s 66 of the Act, that the Minister does not want to be a party (s 84(4)).

Section 86G of the Act 14 Section 86G(1) of the Act confers a discretionary power on the Court to make a negative determination without holding a hearing when certain conditions are satisfied. The section provides 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 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). 15 A non-claimant application is "unopposed" for the purpose of s 86G(1) if the only party is the applicant or if each other party notifies the Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant (s 86G(2)). 16 While a non-claimant application may be determined under s 86G of the Act, this does not alter the requirements of proof. As the Full Court outlined in Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 223 at [44], "The question for the Court remains the same whether the application is unopposed or contested: has the applicant discharged their burden of proof that no native title exists in the claim area?" 17 The standard of proof is the civil standard, on the balance of probabilities: Mace at [54]. Whether the burden of proof 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 arising in a different adversarial context: Mace at [64]. 18 In Wagonga Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1113 (upheld on appeal), Jagot J helpfully summarised the propositions established in Mace regarding non-claimant applications: at [10]. Those principles relevantly include the following: (a) The reason for a non-claimant application does not govern the Court's approach to the exercise of the power: Mace at [42]. (b) 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 any general inquiry into how those rights may or may not have continued: Mace at [55]. (c) 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: Mace at [48]. (d) The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: Mace at [52]. (e) The provisions of the Act are intended to facilitate all persons with a proper interest in an area of land taking step to ensure that their interest is taken into account when the Court is making a 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. A better approach is to focus on what the evidence before the Court does establish, whether for or against the determinations sought by the non-claimant application: Mace at [56]. (f) 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 Act: Mace at [66]. (g) No hard and fast rules can be laid down about what evidence might be required or what might suffice for a non-claimant applicant to meet the required standard of proof: Mace at [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: Mace at [72]. (h) 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: Mace at [82]. (i) 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: Mace at [97]. 19 It is against that background that I turn to consider the facts in this case.

QSNTS 20 Queensland South Native Title Services Ltd (QSNTS) is the representative Aboriginal/Torres Strait Islander body for an area that includes the Land. 21 Prior to the filing of the non-claimant application, the following exchange occurred between the solicitor for the applicants, Mr Rhett Peters, and the (then) Principal Lawyer at QSNTS, Mr Tim Wishart: (a) On 5 June 2023, Mr Peters emailed Mr Wishart advising that he had received instructions to file the non-claimant application and was seeking an "early indication whether you would be likely to oppose such application and if so, on what grounds." (b) On 26 June 2023, Mr Wishart responded to Mr Peters stating that he was "aware of people who assert native title interests in that area" and that it was "likely that one or more of those people would become respondents" and oppose the non-claimant application because "they assert they hold native title rights that would be affected" if the non-claimant application was successful. (c) On 27 June 2023, Mr Peters again emailed Mr Wishart seeking clarification as to the "nature and extent of the evidence upon which those persons who you expect to assert native title interests might rely in opposition to any non-claimant application". Mr Wishart responded that same day stating, "I cannot answer your question at the moment. That is not to be evasive, it is simply that I do not have that specific information." 22 Mr Peters has not heard from Mr Wishart since 27 June 2023.

Notification of the non-claimant application 23 The National Native Title Tribunal (NNTT) publicly notified the non-claimant application in the Koori Mail and Toowoomba Chronicle on 10 April 2024. The notice identified the "notification day" as 24 April 2024. The notification period ended on 23 July 2024. 24 A copy of the notice containing details of the non-claimant application was also provided to the State and QSNTS. By operation of s 84(4) of the Act, the State Minister is a respondent to the proceeding. Neither QSNTS, nor any other person, has sought to become a respondent.

Previous claimant applications 25 The Land was overlapped (in whole or in part) by the following historical native title determination applications: (a) Lawton on behalf of the Bidjara People and their clan groups (NNTT File No. QC1997/001) entirely overlapped the Land. That claimant application was filed on 15 January 1997 and withdrawn on 4 November 1997. (b) McNiven on behalf of the Budjiti People v State of Queensland (QUD6163/1998) partly overlapped the Land. The Budjiti People claimant application was filed on 6 November 1997 and discontinued on 7 May 2004. (c) Fraser on behalf of the Bidjara People #3 v State of Queensland & Ors (QUD6156/1998) partly overlapped the Land. That claimant application was filed on 28 October 1997 and discontinued on 5 September 2008. (d) Fraser & Ors on behalf of the Bidjara People #5 v State of Queensland & Ors (QUD370/2006) partly overlapped the Land. That claimant application was filed on 28 September 2006 and dismissed on 18 May 2007 because of non-compliance by the applicant with a self-executing order made by the Court. (e) Wyman & Ors on behalf of the Bidjara People #6 v State of Queensland & Ors (QUD216/2008) partly overlapped the Land. Bidjara People #6 was, in turn, partly overlapped by the claims of the Brown River People (QUD245/2011 and QUD301/2011) and the Karingbal People (QUD23/2006 and QUD31/2012) (overlap area). The overlap area does not coincide with the Land. On 21 February 2014, Jagot J made a negative determination in respect of the overlap area: Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93 (Wyman (No 4)). On 5 July 2016, Jagot J further ordered that Bidjara People #6 be summarily dismissed: Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777. (f) Arwa Waterton on behalf of the Bidjara People #7 v State of Queensland (QUD644/2012) partly overlapped the Land. The Bidjara People #7 claimant application was filed on 15 November 2012 and was also summarily dismissed by Jagot J on 5 July 2016: Wyman. 26 The basis upon which Bidjara People #6 and Bidjara People #7 were summarily dismissed in Wyman, which was informed by the outcome of the trial with respect to the overlap area, is material to the disposition of the non-claimant application. An overview of the relevant decisions is set out below.

Negative determination over the overlap area 27 Following a trial in respect of the overlap area, Jagot J found that the Bidjara People #6 claimants "do not possess rights and interests under traditional laws and customs which given them a connection with the land and waters of the overlap area, because the pre-sovereignty normative system of land and custom has not continued": Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8 (Wyman (No 3)) at [5]; relevantly citing Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Wyman (No 2)) at [624]-[671]. 28 That finding underpinned the decision by her Honour, in Wyman (No 3), to make a negative determination over the overlap area: at [5]-[6]. See also Wyman (No 4). 29 Both Wyman (No 2) and the exercise of the discretion to make the negative determination over the overlap area were upheld on appeal by the Full Court: Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108 at [95]-[429] and [489]-[500] (per North, Barker and White JJ).

Summary dismissal of Bidjara People #6 and Bidjara People #7 30 In Wyman, Jagot J ordered that both Bidjara People #6 and Bidjara People #7 be summarily dismissed. That was because, as her Honour outlined at [31]: … I am satisfied that the continuation of the Bidjara 6 and Bidjara 7 claims represents an abuse of process which should not be permitted to continue. Although the Bidjara 6 and Bidjara 7 claims relate to different land (that is, land outside of the overlap area) as paragraph 39 of the amended points of claim confirms, they are each claims on behalf of the same claimant group. It will be recalled that by paragraph 39 the applicants assert that "the overlap area and Bidjara 6 Area and Bidjara 7 Area is Bidjara country", meaning country in which the asserted greater than 7000 Bidjara people constituting the claim group hold the asserted native title rights and interests. An essential element of the maintenance of each of the claims is the proposition that the claimant group - which is the same claimant group as in Wyman No 2 - is united in observance and acknowledgment of the traditional laws and the traditional customs of pre-sovereignty Bidjara society. That issue has, however, already been determined against the claimant group. (Emphasis added.) 31 On 12 April 2017, Reeves J dismissed an application for leave to appeal the summary dismissal of Bidjara People #6 and Bidjara People #7: Waterton on behalf of the Bidjara People v State of Queensland [2017] FCA 633.

Power to make the negative determination 32 The applicants have standing to make the non-claimant application because they hold a non-native title interest in relation to the whole of the area in relation to which the negative determination is sought (s 61(1) and the definition of "interest" in s 253 of the Act). 33 The Court has jurisdiction to hear and determine the non-claimant application under s 81 of the Act. The statutory pre-conditions to making the negative determination are also met, given that: (a) The non-claimant application relates to an area for which there is no approved determination of native title (s 13(1)(a)); (b) The notification period under s 66 of the Act for the non-claimant application has ended (s 86G(1)); (c) The State Minister, as the only respondent to the non-claimant application, has notified the Court in writing that the State Minister does not oppose an order in, or consistent with, the terms sought by the applicants (s 86G(1)(a) and (2)); and (d) An order in, or consistent with, the terms of the negative determination sought by the applicants is within the power of the Court (ss 86G(1)(b), 94A and 225).

Have the applicants established that native title does not exist? 34 I am satisfied that the applicants have established, on the balance of probabilities, that native title does not exist in relation to the Land. There are three matters that, taken together, form the basis for this conclusion. 35 First, as appears from the summary set out above, the claimant applications that previously covered the Land (in whole or in part) were either withdrawn, discontinued or dismissed. Of these, the only claimant applications prosecuted to a final hearing, Bidjara People #6 and Bidjara People #7, were summarily dismissed as an abuse of process. 36 Second, while QSNTS stated in an email sent prior to the proceedings being commenced, that it was "aware of people who assert native title rights in that area", the representative body has not been forthcoming with further information as to the nature and extent of the evidence upon which such persons might rely. This was because, at least as at 27 June 2023, QSNTS "did not have that specific information". 37 Third, following notification by the NNTT in 2024, neither QSNTS nor any other person has sought to become a respondent to the non-claimant application for the purpose of asserting native title, or putting evidence before the Court with respect to potential native title holders, in respect of the Land. 38 As the Full Court emphasised in Mace, the weight to be given to the absence of any responses to the notification process is to 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": at [94]. 39 In the present case, the absence of any responses (other than from the State Minister) following the notification procedure, is to be considered in the context of the first and second matters identified above. Materially, this includes previous claimant applications that were either not litigated to a final hearing or, in the case of Bidjara People #6 and Bidjara People #7, were summarily dismissed given the finding in Wyman (No 2) that the Bidjara normative system of traditional law and custom has not continued as required by the Act: Wyman at [26]-[31] and [50]. 40 There is also material before the Court from the relevant representative body, QSNTS. But that information is properly characterised as a generalised assertion of native title over the Land. The quality of the information is not sufficient, in and of itself, to raise an objectively arguable claim of native title: Mace at [97]. And QSNTS has not sought to become a respondent to the proceedings to put evidence before the Court regarding potential native title holders. 41 Given these matters, and while there is some material before the Court with respect to cultural heritage sites, in the absence of any responses following the end of the notification period for the non-claimant applications by persons asserting native title or aware of potential native title holders for the Land, I am satisfied that the applicants have met the required standard of proof.

Discretion 42 While the applicants have discharged their burden of proof, there remains a discretion to be exercised. Relevant, in that regard, is the gravity of a negative determination, and its permanency in terms of its effect on the native title rights and interests which are otherwise sought to be protected by the Act: Mace at [66]. Such an order is not to be made lightly. Nonetheless, given the history of the previous claimant applications over the Land and in the absence of any responses to the notification process by the NNTT, I am satisfied that it is appropriate to make a negative determination.

Conclusion 43 The appropriate order is that native title does not exist in relation to the Land. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.