WG & DK Ryan Pty Ltd (Trustee) v State of Queensland

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 native 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 ss 66(10)(c) came to an end on 8 December 2020, and that no Form 5 party applications have been filed in the proceeding. Therefore, there are no persons who oppose the non-party application. 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 National Native Tribunal 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 [7]). There were five historical native title claims over the Land to which I will return. 17 The evidence also discloses that enquiries were made with the representative body for the area covered by the non-claimant application, being Queensland South Native Title Services (QSNTS) (PWS at [9]-[10] and [12]-[13]). QSNTS indicated that it was "aware of persons who assert they hold native title in the area" of the Land but did not provide any details of who, or the nature or content of any such potential claim (PWS at [11], [14]-[15], PWS-10). QSNTS did not seek to be joined to this proceeding on behalf of a potential native title claimant. In circumstances where it might be expected that a representative body such as QSNTS would be expected to be "a likely repository of at least some information about potential native title holders" in the relevant region (Mace at [95]-[96]), I give no weight to the bare assertion that QSNTS is "aware" of potential claims, particularly in circumstances where there has been no subsequent substantiation of any such possible interest. 18 Five historical claims to native title have been made in respect of the Land involving three different claim groups: the Bidjara People, the Garingbal and Kara Kara People, and the Kangoulu People.

The Bidjara People 19 Three of the previous claims 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 (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. 20 In Mace, the subject land was overlapped by the Bidjara People claims. In the present case, the Land might be overlapped by the historic Bidjara People claims. The applicant 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. 21 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. 22 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. 23 In the light of that decision, 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 Garingbal and Kara Kara People 24 The second group of people who have previously claimed an interest which overlaps the Land is the Garingbal and Kara Kara People (GKK People). The GKK People claim (QUD6233/1998) was filed on 5 August 1997 in response to a non-claimant application. The application did not survive the registration test under ss 190C(2) and (4) of the NTA. (PWS at [20(d)(i)] and PWS-17). 25 In the circumstances, I am not satisfied that the mere existence of this historical claim, without any evidence of any substance from the GKK 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 applicant. I am satisfied that there is no evidence that the GKK People maintain an interest of any kind in the Land.

The Kangoulu People 26 The third group of people who have previously claimed an interest which overlapped the Land is the Kangoulu People. The Kangoulu People claim (QUD6195/1998) was filed on 11 May 1998 and was accepted for registration on 7 September 2000. The claim was ultimately dismissed on 1 September 2009 (PWS at [20(e)(ii)] and PWS-19 and PWS-20). 27 In the circumstances, I am not satisfied that the mere existence of this historical claim, without any evidence of any substance from the Kangoulu People weighs against the making of the determination sought by the applicant. In circumstances where the Kangoulu People had nine years post registration to particularise their claim, and in circumstances where they have not sought to be heard on this application, I am satisfied that there is no evidence that the Kangoulu People maintain an interest of any kind in the Land. 28 In the circumstances, I am satisfied that the applicant has discharged its 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. We certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington.