Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council

Federal Court of Australia (Full Court)|2010-02-02|Before: Perram JJ

THE APPLICATION 6 Pursuant to Aboriginal Land Claim 5716, lodged on 16 November 1995, the Land was transferred to the Land Council by the Minister pursuant to s 36 of the ALR Act on 16 March 1998. Section 36(9) of the ALR Act provides: (9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. 7 Section 36(9A) is not relevant for present purposes. The Land Council, by virtue of s 36(9) of the ALR Act, therefore, holds an estate in fee simple in the Land, but subject to any native title rights and interests existing in relation to the Land immediately before the transfer. 8 Section 40AA(1) of the ALR Act restricts the disposal of land subject to native title rights and interests as follows:

(1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act). 9 The interaction between ss 36 and 40AA was not in issue in these proceedings. The parties assumed, as we do, that the combined effect of these provisions is that the Land Council is prevented from selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing with the Land unless the Land is the subject of an approved determination of native title within the meaning of the NT Act. 10 An application may be made to this Court under Part 3 of the NT Act for an approved determination of native title in relation to an area for which there is no approved determination of native title: s 13(1)(a) NT Act. An "approved determination of native title" is defined in s 13(3) as follows: (3) Subject to subsection (4), each of the following is an approved determination of native title: (a) a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2); (b) an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory. 11 A determination of native title made pursuant to s 13(1)(a) is an "approved determination of native title" (see s 13(3)(a)), unless such determination is varied or revoked (see s 13(4)). 12 Section 61(1) sets out the applications that may be made under Part 3 of the NT Act and the persons who may make each of those applications. In respect of applications under s 13(1) for a determination of native title in relation to an area for which there is no approved determination of native title, s 61(1) clause (2) provides that the 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; … 13 By virtue of its estate in fee simple in the Land, the Land Council qualifies as a person who may make an application under s 61(1) clause (2) for a determination of native title in relation to the Land. 14 On 11 October 2004, the Land Council resolved, pursuant to s 40D of the ALR Act, that the Land was not of cultural significance to Aborigines of the area, and should be disposed of. Hence, on 31 December 2004, a non-claimant application was lodged by the administrator of the Land Council. On 29 June 2007, following the cessation of the administrator's appointment, the Land Council was substituted as the non-claimant applicant. On 14 September 2007 the Land Council entered into a conditional contract to sell the Land. 15 The NT Act sets out the procedures which must be followed for an application made under s 61 of the NT Act. Section 66 of the NT Act provides that the Native Title Registrar must give copies of the application to the relevant State or Territory Ministers (s 66(2)) and to the representative bodies for the area covered by the application (s 66(2A)). Further, the Registrar must give notice containing details of the application as specified in s 66(3)(a) to: (i) any registered native title claimant in relation to any of the area covered by the application; and (ii) any registered native title body corporate in relation to any of the area covered by the application; and (iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and (iv) subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and (v) the Commonwealth Minister; and (vi) any local government body for any of the area covered by the application; and (vii) if the Registrar considers it appropriate in relation to the person - any person whose interest may be affected by a determination in relation to the application; … 16 In accordance with s 66 of the NT Act, the non-claimant application was duly notified, and the notification period as provided for in s 66 ran from 9 March 2005 to 8 June 2005. It is common ground between the parties that the non-claimant application was appropriately notified and that the requirements of s 66 of the NT Act were complied with. 17 New South Wales Native Title Services Limited filed a notice of intention to become a party to the proceedings within the notification period, and was joined as a party on 5 July 2005. It subsequently was granted leave to withdraw as a party on 11 March 2008. 18 A notice of intention to become a party to the proceedings was filed by Mr and Mrs Parkinson, the owners of land adjoining the Land. Their intention to become a party to the non-claimant application was motivated by, in essence, town planning objections to the likely sale of the Land because of the impact upon their land. Their application to be joined as parties was refused: Peter Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2006] FCA 61. 19 Worimi did not give notice within the notification period that he wanted to be a party to the non-claimant application. 20 On 30 March 2007, Worimi filed an amended notice of motion to be joined as a party pursuant to s 84(5) of the NT Act. The primary judge ordered that he be joined as a respondent to the application on 11 September 2007: Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (2007) 164 FCR 181. 21 Worimi had also filed two claimant applications in respect of the Land. Both were struck out pursuant to s 84C of the NT Act for failure to comply with s 61: Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770. 22 No other person gave notice of an intention to become a party to the non-claimant application under s 84(3) of the NT Act within the notification period. 23 No claimant applications were filed before the hearing of the application, other than those lodged by Worimi and struck out (referred to at [21] above). No Aboriginal person came forward to resist the application sought by the Land Council on the basis of a positive assertion of the existence of native title in relation to the Land, other than Worimi. No Aboriginal person sought to become a party to the non-claimant application pursuant to s 84(5) of the NT Act, other than Worimi. 24 Worimi asserts native title interests in the Land and the land in the vicinity.

THE REASONS OF THE PRIMARY JUDGE 25 The primary judge heard the non-claimant application over five days, and delivered reasons and made orders on 18 December 2008 making the declaration sought by the Land Council, that is, there is no native title in the Land: Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 (the primary judgment). 26 In the primary judgment, her Honour dealt with a number of preliminary issues that were the subject of various interlocutory applications and submissions by the parties. 27 Worimi contended that the Minister had no interest in the Land, and had no interest that could be affected by the proceedings, and consequently had no right to cross-examine witnesses at the hearing. Her Honour set out Worimi's submissions on that topic, and then at [22] and [23] of the primary judgment said: There is no basis for Worimi's suggestion that the Minister has abandoned the right to participate in the proceedings or that he is bound to take a submitting role. I see no basis for Worimi's submission that the Minister's role is somehow constrained and that his counsel has no right to cross-examine witnesses in the proceedings. I do not accept that the Minister's interests are not affected by a determination in the proceedings simply because the Land is owned by the Land Council and not by the Crown. I accept the Minister's submission that, as the Crown in right of the State holds the radical title to the Land, it has an interest in knowing whether or not, and in what way, its radical title is burdened by native title rights and interests. He also has an interest in the operation of the [ALR Act], including the operation of s 36(9) and s 40AA. In any event, the [NT Act] does not require the Minister to establish an interest in order to be a party to the proceedings. I will not disregard the cross-examination by counsel for the Minister or the submissions made on his behalf. 28 A preliminary issue also arose as to the burden of proof on the Land Council and on Worimi in the non-claimant application. The primary judge set out at [24] to [31] of the primary judgment the issues relating to the legal burden, and noted at [25] to [26]: All parties accept that the Land Council bears the burden of proof to satisfy the Court that no native title exists in the Land. All parties agree that the onus is on the Land Council to establish that there is no native title over Lot 576. The Land Council and the Minister accept that the applicable standard of proof is the balance of probabilities. While there was some suggestion from Worimi that the standard of proof may be higher in the present case, he ultimately accepted that the Land Council must prove its case on the balance of probabilities. Worimi's written submissions state that it 'is common ground that the standard of proof is the balance of probabilities'. 29 Her Honour noted at [30] of the primary judgment that Worimi's submissions in relation to the burden of proof were not to "identical effect". Her Honour referred to the competing submissions on the evidentiary burden in paragraphs [32] to [42] of the primary judgment, and noted at [42]: The Land Council and Worimi appear to agree that the evidential burden shifts to Worimi if the Land Council establishes sufficient evidence from which the negative proposition of no native title may be inferred. The real difference between the parties relates to their submissions regarding what evidence is sufficient to establish the negative proposition. 30 The primary judge continued in paragraphs [43] to [62] to consider the competing submissions. Her Honour noted at [43] that a native title determination may only be made in accordance with the NT Act, and referred to Commonwealth of Australia v Clifton (2007) 164 FCR 355 (Clifton). The critical part of her Honour's reasoning in this respect is at paragraphs [46] and [47] of the primary judgment where her Honour held: In the absence of a claimant application following the giving of notice of the making of the non-claimant application in respect of the Land, the Court is entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the Land (Clifton at [59]). At the very least, this supports an inference of an absence of native title over the Land, subject to the matters to be raised by Worimi. It does not follow that the absence of a native title claim means that, without more, there is a declaration of no native title. … 31 At [55] of the primary judgment, her Honour held: Worimi does not need to establish that native title exists on the balance of probabilities. It is for the Court to assess the totality of the evidence to determine whether the Land Council has established, on the balance of probabilities, that native title does not exist. … Worimi does not need to prove each element of native title. He is not obliged to establish native title as if it were a positive defence being asserted. He does, however, need to address native title under the Act [NT Act] by reference to those material matters. He must address the necessary elements sufficiently to cast doubt on the Land Council's assertion of no native title. He needs to show that there have existed traditional laws and customs in relation to the Land, the continued observance of those laws and customs and the maintenance of a connection with the Land. If he does not lead evidence as to each of those matters, elements of native title, he will need to adduce evidence, sufficient in scope and weight, as to one or more of those elements to cast doubt on the proposition that native title does not exist. 32 The primary judge referred to Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (Apollo Shower Screens) and noted at [57]: All of the evidence is to be weighed according to the proof which it was in the power of one side to produce and in the power of the other to have contradicted (Apollo Shower Screens at 565). Once the Land Council has established sufficient evidence from which the negative proposition, an absence of native title, may be inferred, Worimi carries an evidential burden to advance evidence of any particular matters going to the existence of native title. It is then for the Land Council to deal with the evidence in the discharge of its overall burden of proof (Apollo Shower Screens at 565). 33 Her Honour continued to note the relative power of the parties to adduce evidence on the non-claimant application and concluded at [62]: The Court must consider such evidence as has been adduced. The Land Council's evidence supports a case of no native title. Worimi has adduced evidence in support of his assertion of native title. The possibility of native title over the Land can only be assessed on the available evidence. I do not accept that the Land Council is obliged to prove that native title does not exist in the way advanced by Worimi, by establishing the nature and content of any native title rights and interests at the time of sovereignty and then "deconstructing" this through admissible evidence to show that any connection which Aboriginal people may have had with the Land no longer exists. The Land Council must establish, on the balance of probabilities, that native title under the [NT Act] does not exist over [the Land]. 34 At paragraphs [63] to [79] of the primary judgment, her Honour dealt with the preliminary issue of whether there is a presumption that native title exists over the Land. Her Honour set out Worimi's contentions and then noted at [69]: There is no presumption of the existence of native title under the [NT Act], either for a claimant seeking a determination of the existence of native title or for a non-claimant seeking a determination of the absence of native title. 35 Her Honour concluded at [75] that the Land Council is not required to overcome and negative a presumption that native title exists over the Land, and further in paragraphs [76] to [79] held that contrary to Worimi's submissions, the description of the Land as "traditional Worimi country" does not establish a presumption of native title over the Land. 36 In relation to the preliminary matters raised, her Honour set out her conclusions on those matters at [88] of the primary judgment in a series of dot points as follows: · The [NT Act] permits the making of non-claimant applications for determinations that no native title exists over land. · This allows people with interests in land to ascertain whether native title exists. The [NT Act] envisages that determinations of the absence of native title may be made and provides a statutory guarantee of validity to future acts (s 24FA). Section 61(1) provides for non-claimant applications for native title determinations. There is no indication in the [NT Act] that there is a presumption that native title exists that must be displaced by an application seeking a determination of the absence of native title. · The Minister has not abandoned his right to participate in these proceedings … In any event, the [NT Act] does not require the Minister to establish an interest in order to be a party to these proceedings. · These proceedings do not enable Worimi to obtain a declaration that native title exists. In order to establish that native title exists, it is necessary to make an application under the [NT Act] and to comply with the [NT Act] and the requirements for the establishment of native title … · An applicant for a determination of the absence of native title has an onus to establish that there is no native title over the land. That onus applies to a civil standard. The applicant must demonstrate on the balance of probabilities that native title does not exist. · There is no indication in the [ALR Act] or the [NT Act] to indicate that the standard to be applied is other than the ordinary civil standard. · A respondent to the application may adduce evidence to cast doubt on the applicant's case. … Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Worimi's assertion of his native title rights and interests may lead to a more informed decision in the non-claimant application … · The decision is based upon the whole of the evidence before the Court including evidence adduced by Worimi. · The evidence adduced by Worimi should be assessed to determine whether it is sufficient to cast doubt on the Land Council's case such that the Land Council does not satisfy the Court that, on the balance of probabilities, no native title exists over the Land. · Accordingly, the onus is not on the Land Council to satisfy the Court as to the absence of each element required to prove the existence of native title. The Land Council is not required positively to establish the situation pre-sovereignty and from sovereignty to the present time with expert evidence of laws and customs. It is contrary to logic to say that a person who wishes to establish that there is no native title must first positively prove that there were laws and customs at any stage. · Worimi is the person who asserts the existence of native title. That necessarily means native title under the [NT Act]. The evidence must address the elements of such a claim, in particular the laws and customs and rights and interests from pre-sovereignty or the time of sovereignty to the present. It is not necessary to prove each element of native title but the evidence should be sufficiently cogent with respect to those elements it does address to cast doubt on the assertion that native title does not exist. If the evidence establishes the absence of a necessary element of native title, such as continuous connection with the Land, this would provide support for a determination of the absence of native title. · The Land Council may call evidence as to the existence or non-existence of laws and customs at each of those stages and as to the existence of a class or persons claiming the communal, group or individual rights. The Land Council may establish that only one necessary element is missing, such as continuous connection. That would be sufficient to establish an absence of native title. · The subject matter of this application is the land constituted by a single lot, Lot 576. Worimi contends that it is impossible to deal with Lot 576 without also considering the surrounding land. The Land Council has no obligation to demonstrate an absence of native title throughout the Port Stephens area. The evidence needs to concern the Land. However, evidence that relates to an area that goes beyond a recently subdivided lot is likely to be relevant. The question remains, however, whether there are native title rights and interests over Lot 576. · It is not in dispute that all formal requirements for a non-claimant application for a determination of the absence of native title have been met. In the absence of any evidence as to the existence of native title over the Land, the Land Council would be entitled to the determination it seeks. Both the Land Council and Worimi have adduced evidence addressing the existence of native title. It is necessary to consider the whole of that evidence to ascertain whether the Land Council has established, on the balance of probabilities, that there is no native title or whether sufficient doubt has been cast on the Land Council's case. 37 After setting out her conclusions on the preliminary matters, the primary judge then considered at [90] to [100] the evidence filed by Worimi, and at [101] to [108] the Land Council's affidavits filed in response to that evidence. Her Honour considered at [109] to [112] Worimi's evidence filed in reply, and at [127] to [131] his evidence given in cross-examination. Her Honour also noted at [132] previous affidavits filed by Worimi, some of which were not evidence on the non-claimant application, but which it was agreed nonetheless formed background to the evidence and submissions, and at [133] affidavits filed by several members of his family. There can be no valid suggestion that her Honour was not aware of that evidence. 38 The primary judge also referred to the fact that applications for determinations of the existence of native title had been filed, but not determined, in respect of parts of the Area held by the Land Council. The named applicants in those proceedings gave evidence in this application. Those applications do not relate to the Land, or land within the immediate vicinity of the Land, and her Honour noted at [118]: I do not consider that the applications and the fact that some of the witnesses were claimants for native title over Stockton Bight and Bagnalls Beach impeaches their credit in these proceedings… 39 Her Honour then turned to consider the evidence. Her Honour noted that the Land Council relied on the absence of any claimant application over the Land, and that no Aboriginal person other than Worimi (and some of his immediately family who supported his claimant applications) had either lodged claimant applications with respect to the Land or asserted that native title exists in relation to the Land. 40 Her Honour noted in detail the content of the native title rights and interests asserted by Worimi, but also noted that no other person had been called to give evidence in support of his contentions, despite the length of time since his first application. Her Honour noted that no other Worimi person gave evidence to support the existence of laws and customs that connect Worimi people with the Land or adjacent land. Her Honour set out Worimi's contentions at length, and the Land Council's submissions with respect to inconsistency in Worimi's contentions over the duration of the proceedings. At [158] to [159] of the primary judgment, her Honour held: No Aboriginal man or woman who gave evidence, other than Worimi, knew of a women's site on or near the Land or between Birubi Beach and Boat Harbour. Specifically, there is no evidence to support Worimi's assertions of:

the existence of a site known as the "Poona" at Kingsley Beach or of any practice associated with birth or baptism in the area between Birubi Beach and Boat Harbour or on [the Land];
the existence of a "billabong" or "namby" on or in the vicinity of [the Land] or that any such billabong was used for washing saltwater off babies after they had been baptised;
the use of the freshwater spring or stream running through [the Land] for washing saltwater off babies after they had been baptised;
the giving of totems to babies on or near Kingsley Beach;
the burying of afterbirth on or near [the Land];
the existence of an avoidance obligation on men relating to [the Land] or Kingsley Beach or any other land in the vicinity of Boat Harbour. … Worimi has not provided supporting evidence by other Aboriginal people, in particular Worimi women, of his contentions. There is no other evidence supporting his primary assertion that the land between Birubi Beach and Boat Harbour, including the Land, was, under traditional laws and customs, a place associated with birth and baptism. 41 Her Honour noted at [162] that Worimi conceded that, if there had been rights and interests according to traditional laws and customs of a group of Aboriginal persons connecting them to the Land, in relation to the Land, that there had been a lack of continuity in the practise of those traditional laws and customs to the present time: The Land Council relies on Worimi's own evidence to demonstrate a lack of continuity in the practices said to have been carried out on or near the Land. Worimi acknowledges that, whether or not [the Land] and the area at Kingsley Beach are women's sites and associated with the birth of children, whether Worimi, Maaiangal or Garuahgal, there has not been a continuous connection with such people and the observance of traditional laws since sovereignty. Accordingly, there has not been the requisite "connection" with the Land as required by s 223(1) of the [NT Act] (Bodney v Bennell (2008) 167 FCR 84 at [171]-[174]). This is not because of the physical presence or absence on the Land. It is because the practices of his own family, that he says are associated with the Land, were not observed at least from the time of his grandmother until his daughter went onto the Land in 2006. … 42 The primary judge held that Worimi's evidence had failed to reach the relevant threshold to cast doubt on the assertion that native title does not exist. At [167] her Honour held: Worimi's facts and contentions comprehensively fail to establish the elements of native title required by s 223 of the [NT Act]. They do not establish native title within the meaning of Yorta Yorta. They do not identify the alleged content of the normative body of laws and customs acknowledged and observed by the pre-sovereignty society nor how those laws and customs have continued to be acknowledged and observed substantially uninterrupted. While Worimi is not required positively to establish native title in order to resist the Land Council's application, he must present evidence which is sufficiently cogent with respect to those elements that the evidence does address to cast doubt on the assertion that native title does not exist. 43 Her Honour addressed Worimi's evidence in detail and concluded at [189]: I am satisfied that there has not been the necessary connection with the Land and the observance of the asserted laws and customs. This is not because of Worimi's temporary absence in Western Australia. It is because, on the evidence, I am satisfied that there was no women's site on or near [the Land] and that there was no use of a waterhole on or near [the Land] associated with the birth of Worimi children. If there were such a site or such use, it has long since ceased to be used. Worimi's attempt to revive such use in the case of his daughter and the birth of his grandson is insufficient to give rise to native title rights and interests in the Land. 44 Hence, her Honour made the declaratory order sought, that there is no native title in the Land.

THE GROUNDS OF APPEAL 45 Worimi by his Notice of Appeal relies on three grounds of appeal. 46 First, that her Honour erred in concluding that there was evidence upon which an inference was capable of being drawn that there is no native title in relation to the Land. 47 Second, that her Honour erred in concluding that the Land Council bore no onus to demonstrate the nature and content of the pre-sovereignty native title rights and interests in relation to the Land. 48 Third, that her Honour erred in concluding that where the formal requirements for a non-claimant application for a determination of the absence of native title had been met, then in the absence of any evidence as to the existence of native title in relation to the Land, the Land Council would be entitled to the determination it sought. 49 In the primary written submissions on the hearing of the appeal, perhaps reflecting the fact that there is some overlap in the specified grounds of appeal, they were not dealt with discretely. Nevertheless we shall endeavour to do so. 50 A fourth ground of appeal, that her Honour erred by misdirecting herself as to the nature of Worimi's case, and in the result failed to give adequate reasons, was abandoned at the commencement of the hearing of the appeal. 51 The Minister filed a Notice of Contention that the primary judgment should be affirmed on the ground that Worimi, having failed to adduce or to direct the Court's attention to evidence of each of the elements necessary to establish the existence of native title over the Land did not, even if there was cogent evidence with respect to those elements that were addressed in the evidence, cast doubt on the assertion that native title did not exist. At the hearing of the appeal, counsel for the Minister indicated that that contention was no longer pressed as it was unnecessary to press it.

CONSIDERATION 52 It is convenient to first deal with the second of the grounds of appeal, as it asserts that the proof of the negative proposition - that there are no native title rights and interests in relation to the Land - must be effected in a certain manner.

Whether the onus was on the Land Council to demonstrate the nature and content of the pre-sovereignty native title rights and interests in relation to the Land 53 This ground of appeal addresses Worimi's contention that an applicant in a non-claimant application for a determination of native title under s 61 of the NT Act is required to establish the nature and content of pre-sovereignty native title rights and interests in relation to the land that is the subject of the application, and then must "deconstruct" to show the contemporary state of affairs contrasted in order to demonstrate a lack of continuity or other reason by which native title no longer exists. 54 The primary judge rejected that approach at [62] of the primary judgment. Her Honour said that the Land Council must establish, on the balance of probabilities, that native title under the NT Act does not exist over the Land, but did not accept that it must be proved in the way asserted by Worimi. 55 Further, her Honour rejected that approach in her summary of the preliminary matters at [88] where her Honour said: · Accordingly, the onus is not on the Land Council to satisfy the Court as to the absence of each element required to prove the existence of native title. The Land Council is not required positively to establish the situation pre-sovereignty and from sovereignty to the present time with expert evidence of laws and customs. It is contrary to logic to say that a person who wishes to establish that there is no native title must first positively prove that there were laws and customs at any stage. 56 The approach contended for by Worimi would involve a "roving inquiry" into whether any person, and if so who, held any, and if so what, native title rights and interests in the land and waters at settlement, and chronologically to the time of the application. Such approach is of the kind expressly rejected by the Full Court in Jango v Northern Territory (2007) 159 FCR 531 (Jango) at 558, [84]. There may be a number of reasons why, at or by a particular time, no native title rights or interests exist in relation to particular land. 57 The term "native title rights and interests" is defined in s 223 of the NT Act. It has been authoritatively explained by the High Court in cases such as Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Western Australia v Ward (2002) 213 CLR 1; Commonwealth v Yarmirr (2001) 208 CLR 1 and Wilson v Anderson (2002) 213 CLR 401. So, too, has the concept of extinguishment of native title rights and interests: State of Western Australia v Commonwealth (1995) 183 CLR 373; Wik Peoples v State of Queensland (1996) 187 CLR 1 and Fejo v Northern Territory of Australia (1998) 195 CLR 96. It is not necessary to repeat or summarise what those cases decided. They illustrate that native title rights and interests in relation to land or waters, accepting they existed at the time of settlement, may no longer exist because the Aboriginal peoples who enjoyed them at settlement may have ceased to exist as a community or group through the passage of history, or may have ceased to possess and enjoy those rights and interests, or by the intervention of Government over time that those rights and interests may have been extinguished. 58 In an application such as the present, it is not necessary routinely for a non-claimant applicant such as the Land Council to prove (probably by anthropological evidence) that native title rights and interests existed at settlement, the community or group that possessed and enjoyed them, and their detailed content, and then to prove the circumstance or circumstances which led to each of those rights and interests ceasing to be possessed or enjoyed by any contemporary Aboriginal persons or groups. That might be necessary in certain circumstances. But it cannot be necessary in every case, as was argued on behalf of Worimi. It will depend on the nature of the evidence which is sought to be adduced by the non-claimant applicant and by any respondents. It may depend on the evidence as to the nature and location of the land in issue. For example, in an urban environment where valid freehold title has been issued by the Crown over the land in issue, that title would necessarily have extinguished any native title rights and interests which previously existed over that Land. There would be no need to go beyond proof of the extinguishing grant. In other instances, there might be an issue as to the nature or extent of the extinguishment of native title rights and interests. Each case has to be addressed on its particular facts. 59 Indeed, it was accepted by counsel for Worimi at the hearing of the appeal, that, for example in the circumstances of a non-claimant application over certain land, if there was total extinguishment over that land by the grant of a freehold title, it would not be necessary to "go behind" that fact and adduce evidence as to the pre-sovereignty rights and interests by way of genealogical or other expert evidence. Such a step would be unnecessary. 60 For those reasons, this ground of appeal must fail. The approach contended for by Worimi is not one which accords with commonsense. No circumstances were identified by counsel on his behalf (other than the matters put on the first ground of appeal) to show that the approach of the primary judge in this matter was incorrect. We now turn to that ground of appeal.

Whether there was evidence upon which a conclusion was capable of being drawn that there is no native title in relation to the Land 61 The submission on behalf of Worimi does not, it is asserted, involve any attack upon the weight given to the evidence by the primary judge. It is based upon the proposition that the evidence adduced by the Land Council could not support the conclusion of the primary judge. On an appeal such as the present, we do not consider that there is a relevant difference in those two positions. The appeal is by way of rehearing: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. That involves consideration not only of errors of law, but also of errors of fact. The Full Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Warren v Coombes (1979) 142 CLR 531; CSR Ltd v Della Maddalena (2006) 224 ALR 1 per Kirby J at 7, [16]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424. In deciding whether the primary judge erred in reaching her conclusion, of course a misunderstanding about the nature of particular evidence or a misdirection about its significance might indicate error on her part. 62 However, to preserve the distinction which Worimi asserted, the focus of his attack was upon the earlier part of the reasons of the primary judge, dealing with the preliminary matters. In our view, it is not appropriate to isolate the reasons of the primary judge in that way so as to support the contention that she fell into error in her ultimate conclusion. Her conclusion, and the means by which it was reached, must be assessed upon the whole of her reasons. The preliminary matters arose only in the particular context of the case. It is necessary to understand how that came about. 63 Worimi, by the lateness of his application to be joined as a party to the proceeding, was required to justify the desirability of him being permitted to be joined as a party. He asserted that he had an interest in being joined because he claimed that he, and others, held and enjoyed native title rights and interests in relation to the Land. His earlier claims for a determination to that effect had been struck out. Even if he was unable to get authorisation of the community or group who (he said) strictly speaking enjoyed those rights and interests, he was able to use his asserted rights and interests defensively, to oppose the Land Council's application: Kokatha People v State of South Australia [2007] FCA 1057 per Finn J at [48]. See also the primary judge's reasons on the joinder application: Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (2007) 164 FCR 181 at 189, [30]. 64 It is common sense then that Worimi should have been expected to adduce evidence about those claimed rights and interests. Otherwise, the evidence of the Land Council would have stood uncontradicted. The evidence of Worimi, if accepted, may have made it very difficult for the Land Council to discharge its onus of proof. It was consistent with that practical position that, as a condition of the joinder, Worimi was required to give to the Land Council notice of what he asserted to be those native title rights and interests and of the evidence he might choose to adduce to show their existence. As her Honour observed at [47], if Worimi gave evidence which was accepted, that evidence may at least have cast doubt on the Land Council's case. If he did not give evidence, the point of him becoming a party to the proceeding would have largely been dissipated. 65 In the written submission, it was said that the Land Council did not adduce evidence which, if accepted, as opposed to when finally assessed, could rationally establish the factual basis upon which the Court could positively infer that no native title rights and interests existed in relation to the Land. 66 It was also put that the evidence did not pass from the "realm of conjecture" to the "realm of inference", adopting the terms used by Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 307-308. 67 First, it should be noted that the primary judge correctly tested the evidence against the legal burden of proof resting on the Land Council. It had to satisfy the Court, on the balance of probabilities, that no native title exists in the Land. The parties at the hearing at first instance agreed that that was the correct burden of proof. 68 Secondly, it is important to note that there was no submission on the part of Worimi at the conclusion of the case for the Land Council that there was no case to answer or no prima facie case: see eg Jones v Dunkel (1959) 101 CLR 298 at 319-20. If such a submission had been made (subject to the Court putting Worimi to an election as to whether or not to call any evidence: Stevenson v Barham (1977) 136 CLR 190 at 202-3; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344), the primary judge would have been called upon to decide whether the evidence adduced by the Land Council was such that she could find the material facts proved, namely that at the time of the application there are no native title rights and interests enjoyed by any community or group of, or other individual, Aboriginal persons in relation to the Land. It is not necessary to discuss the legal refinements of the test to be applied when such a submission has been made. One submission on behalf of Worimi may have inadvertently relied on a fine line drawn in that jurisprudence, where it was put that the "challenge" to the finding is a question of law. A submission that there is no case to answer because the evidence, taken on its face, cannot support the conclusion contended for on the balance of probabilities may involve a question of law: see eg Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA at 156. 69 The discussion in the reasons of the primary judge about the "evidentiary burden" are in that context. It appears that there was some issue about whether the Land Council should present all its evidence first, or should present such evidence as it said was sufficient to make out its case, and then Worimi present his evidence, and then the Land Council should present any evidence in reply. No submission was put at the conclusion of the primary case of the Land Council that there was no evidence which, if accepted, could support the conclusion it contended for or the order it sought. The sequence of giving evidence in the circumstances has no particular importance to resolution of the appeal. Given that Worimi, through his counsel, accepts that the primary judge could have placed the very limited weight on his evidence (as she did), the issue remains whether, upon the evidence which the primary judge accepted, her Honour erred in making the ultimate conclusion of fact that she did. 70 Before turning to that issue, there are two further matters to note. 71 The first is that, as a matter of common sense, it was desirable in a case such as the present, but not necessary (subject to the orders by which Worimi was joined as a party), that Worimi give evidence. That is simply the consequence of the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 at 65, 66. In a case where an applicant has the onus of proving a negative proposition, and where another party has a greater means of producing evidence to contradict the negative proposition, that maxim has a particular resonance: Apollo Shower Screens (1985) 1 NSWLR 561 at 565 per Hunt J; Purkess v Crittenden (1965) 114 CLR 164 at 167-8, 171. 72 The second derives from Worimi's contention that her Honour drew the inference that there was no native title in relation to the Land on the basis of two, and only two, pieces of evidence, namely, the fact that the Land Council passed the resolution (referred to above at [14]) and the absence of a coherent or valid application or assertion of native title with respect to the Land. 73 In fact, her Honour did not infer that there is no native title in relation to the Land simply on the basis that that was an absence of claimant applications and because the Land Council passed that resolution. That part of her Honour's reasons discussing that evidence was when she was considering the preliminary issues. To the contrary, her Honour considered all the circumstances and available evidence, both of the Land Council and Worimi, in reaching her conclusion on the evidence. 74 In reaching her conclusion, the primary judge did not divert from her (correct) view that the onus of proof of the negative proposition - that no native title rights and interests existed in relation to the Land - remained throughout on the Land Council. Her Honour reminded herself of that onus of proof on a number of occasions in the course of her reasons. If the evidence of the Land Council (if accepted by the primary judge) could have been sufficient to satisfy her Honour on the balance of probabilities of that negative proposition, it was necessary for Worimi to decide whether to call any evidence at all. If he did not do so, the primary judge would have had to decide the extent to which she accepted the evidence adduced by the Land Council and the weight she gave to it, and then to decide the ultimate question. The fact is that that evidence, if accepted, was (as her Honour concluded) both credible and sufficient to support her ultimate finding on the balance of probabilities. At no point was there any legal burden of proof upon, nor any legal obligation to adduce evidence, imposed upon Worimi. Her Honour used the term "evidential burden" in relation to Worimi to describe the circumstance in which he found himself. That was not inappropriate. 75 We turn to consider the principal proposition of Worimi. 76 In this matter, the primary judge had the benefit of the absence of a claimant application after the extensive notification required by the NT Act of the Land Council's application. That may indicate that no native title claim group or groups assert native title rights and interests over the Land: Clifton (2007) 164 FCR 355 at 367, [59]. There was evidence of 11 persons, three of whom were cross-examined, including eight who identified as Worimi people. They were Aboriginal people with some knowledge and experience of the Area, including the Land. Their evidence was that the Land is not considered to be subject to native title rights and interests. Her Honour had some regard to the resolution of the Land Council of 11 October 2004. That resolution has some, but relatively minor, significance having regard to its terms; they relate to s 40D of the ALR Act and not to the definition of "native title rights and interests" under the NT Act. Her Honour had the benefit of a view. She heard the evidence of Worimi. She had documentary evidence about earlier unsuccessful claimant applications over land in the Port Stephens area, but which did not include the Land. 77 Having carefully rehearsed, and then considered, that evidence, the primary judge concluded at [189] in a passage quoted above at [43] that the necessary connection with the Land to the time of the application did not exist, and that any earlier observance of traditional laws and customs in relation to the Land had long since ceased. The evidence of Worimi, which was discussed at length, was not of such weight as to cast doubt on the overall assessment of the evidence to that effect. 78 At one point in the submissions, Worimi through his counsel said that the primary judge misconceived the significance of his evidence because it was assessed against the measure of proving all the material elements of native title. We do not consider that her Honour erred in that way. Clearly, his evidence would touch on those matters, and to the extent it was accepted or regarded as reliable, would tend to show that there were native title rights and interests existing in relation to the Land. That was the purpose of his evidence. However, ultimately, the primary judge on the whole of the evidence, including that of other Aboriginal persons, at [189] rejected key parts of Worimi's evidence and at [190] to [193] found that his evidence in the context of the evidence as a whole did not have sufficient substance as to cast doubt on other evidence which was accepted. 79 As counsel for Worimi pointed out, in contested non-claimant applications (to which s 86G of the NT Act does not apply) there have been only several other declarations that native title does not exist. They include Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606; Application for Determination of Native Title Made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402; Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; Lawson v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 1127; Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165 and Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374. The focus of those decisions in New South Wales is no doubt prompted by the particular provisions of the ALR Act. 80 It does not follow that the present decision is made merely on conjecture and not on evidence. That is a matter to be decided on consideration of the reasons of the primary judge and the whole of the evidence. It is obviously a difficult task to prove a negative proposition: Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 641-2. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of those things. It must nevertheless be more than a scintilla (Apollo Shower Screens (1985) 1 NSWLR 561 at 565). It may be determined having regard to the power of the respective parties to adduce relevant evidence, and the extent to which they do so. In this matter, it was mainly a combination of the direct evidence of the Aboriginal witnesses and the inference drawn from the absence of a cogent assertion of native title by a competent application under s 61 of the NT Act, after the notification process, which supported the conclusion of the primary judge. 81 In our view, there was sufficient evidence to support that conclusion. We do not consider that the primary judge fell into error in reaching it. Indeed, upon that evidence and having regard to the assessment of the significance of Worimi's evidence, we are of the view that the primary judge's conclusion was the correct one.

Whether if the formal requirements for a non-claimant application are met, in the absence of evidence as to the existence of native title in relation to the Land, the non-claimant applicant would be entitled to the determination sought 82 At the hearing, counsel for Worimi dealt with this ground of appeal as part of the principal or first ground of appeal. In our view, this ground of appeal is misconceived. Her Honour did not say that compliance with the formal requirements for a non-claimant application, in the absence of evidence as to the existence of native title in relation to the Land, would entitle the Land Council to the determination sought. The critical part of her Honour's reasoning in this respect is at paragraphs [46] and [47] of the primary judgment where her Honour held: In the absence of a claimant application following the giving of notice of the making of the non-claimant application in respect of the Land, the Court is entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the Land (Clifton at [59]). At the very least, this supports an inference of an absence of native title over the Land, subject to the matters to be raised by Worimi. It does not follow that the absence of a native title claim means that, without more, there is a declaration of no native title. 83 Her Honour expressly held that whilst compliance with the formal requirements for a non-claimant application, in the absence of evidence as to the existence of native title in relation to the Land, may entitle the Land Council to the determination sought, it does not necessarily follow automatically that "without more", the Court will make a declaration of no native title. Counsel for Worimi conceded on appeal that if the Court did not find error in the first sentence of paragraph [46] in the primary judgment, then that ground of appeal must fail. Properly understood, there was no error in that sentence. 84 In any event, as we have noted above, her Honour did not simply make the declaration sought on the basis that the formal requirements for a non-claimant application were met and that there was no evidence as to the existence of native title in relation to the Land. Her Honour embarked upon a detailed consideration of the evidence, from both the Land Council and Worimi, and concluded that the evidence lead to the finding that no native title rights and interests existed in relation to the Land and that the evidence adduced by Worimi had failed to cast doubt on the absence of native title. 85 The third ground of appeal must fail.

CONCLUSION 86 It is desirable to make one further observation. 87 The primary judge concluded, correctly as we have decided, that on the evidence there was, at the time of the application and the hearing, no ongoing connection between whatever native title rights and interests existed in relation to the Land at settlement. Each case must be decided on its particular facts. Bodney v Bennell (2008) 167 FCR 84 was not a case where there was a declaration that no native title existed in relation to the claim area. It found that the claim had not been made out. It provides an illustration of there being no evidence of contemporary connection in relation to that claim area (the Perth metropolitan area), even though the claim group in that case may have demonstrated ongoing connection with other more southerly parts of Western Australia. It is self-evident that a community or group of Aboriginal persons may have an ongoing connection with land, even though their access to, or use of, that land is restricted or spasmodic; that connection may be mainly spiritual rather than physical; it may have evolved over time to a less specific use of all or many parts of that land; it may not involve physical access to each and every part of the land: see for example De Rose v State of South Australia (2003) 133 FCR 325; De Rose v State of South Australia (No 2) (2005) 145 FCR 290; Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442. At least in each contested non-claimant application for the determination of native title, it is necessary to bear in mind that the particular area of land in question may be part only of a larger area of land over which there may be existing native title rights and interests. That is a matter to be determined on the facts of each case. 88 For the reasons given, we consider that the appeal should be dismissed. Worimi should pay the costs of the appeal. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Mansfield & Perram.

Native Title Act 1993(Cth)ss 13, 36, 61

117 FCR 424 applied Kokatha People v State of South Australia [2007] FCA 1057 applied Jones v Dunkel (1959) 101 CLR 298 applied Stevenson v Barham (1977) 136 CLR 190 applied Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 applied Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 applied Blatch v Archer (1774) 1 Cowp 63 cited Purkess v Crittenden (1965) 114 CLR 164 cited Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 cited Application for Determination of Native Title Made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402 cited Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 cited Lawson v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 1127 cited Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165 cited Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374 cited Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 cited Bodney v Bennell (2008) 167 FCR 84 discussed De Rose v State of South Australia (2003) 133 FCR 325 cited De Rose v State of South Australia (No 2) (2005) 145 FCR 290 cited Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 cited

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Cases Cited (36)