Federal Court of Australia

North Queensland Land Council Native Title Representative Body Aboriginal Corporation (ICN 1996) v Harris [2025] FCAFC 70

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first respondent have liberty to file and serve written submissions not exceeding three pages on the question of the costs of the appeal on or before 4.00 pm on 28 May 2025.

3.    If the first respondent files and serves written submissions pursuant to order 2 of these orders, on or before 4.00 pm on 4 June 2025 the appellant and second respondent may each file and serve responsive written submissions on the question of costs of the appeal not exceeding three pages.

4.    Any question of the costs of the appeal raised pursuant to orders 2 and 3 hereof will be determined on the papers.

5.    In the absence of any submissions from the first respondent on the question of costs, there be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Mr Scott Harris sought a determination that native title does not exist in a very large area of land located in the Gulf Country in far north-western Queensland. It forms part of Strathmore Station of which Mr Harris is the lessee. The application was opposed by the North Queensland Land Council Native Title Representative Body Aboriginal Corporation (NQLC) and the State of Queensland. It was determined that native title does not exist in respect of the land which was referred to by the primary judge as the Non-claimant Area. NQLC now brings an appeal which is supported by the State.

2    By an amended notice of appeal, which at the hearing of the appeal we granted leave for NQLC to file, only grounds 1, 4, 5 and 7 of the grounds of appeal set out in the original notice of appeal are pressed. For the following reasons, we have determined that each of those grounds must be dismissed.

The proceedings before the primary judge

3    The final hearing of the application by Mr Harris took place some nine years after the proceedings were commenced. The hearing occupied two weeks. It was conducted on the basis of a statement of facts and legal issues. It was common ground that in respect of the land in issue (Land) native title had existed at the time of European settlement but there was a dispute as to the identity of those Aboriginal people who held rights and interests under the laws and customs of the society that was in existence at that time and also as to the content of those laws and customs. There were also issues as to whether, since then, there had continued to be acknowledgment and observance of laws and customs by Aboriginal people with connection to the Land.

4    Evidence was received from Mr Harris as to his own observations and experience over a period of 18 years concerning access by Aboriginal people to the Land. There was also evidence as to the history of native title applications and determinations in respect of the Land and surrounding land as well as what had occurred in the course of the conduct of the proceedings. There was lay evidence from four Aboriginal people as to their alleged connection to the Land.

5    Dr Natalie Kwok, an anthropologist, gave expert evidence. She had been engaged by NQLC to conduct desktop research into available archival material and expert reports that had been prepared for the purposes of applications for native title determinations as to surrounding land and to conduct interviews with people who asserted native title interests in the Land. Dr Kwok also was asked to provide preliminary opinions about potential native title interests. She conducted almost 100 interviews and in her oral evidence described her research as 'fine-grain'.

6    Dr Philip Clarke, an anthropologist engaged by Mr Harris, gave expert evidence based upon the materials referred to by Dr Kwok and other publicly available materials.

7    Significantly, before the primary judge, NQLC relied upon the evidence of Dr Kwok and the four Aboriginal witnesses to demonstrate the existence of native title over the Land. That is to say, it advanced an affirmative case in defence of the application to the effect that there was evidence to support claims of native title to the Land. There was also an issue between the parties as to whether NQLC had advanced an assertion of native title that was 'objectively arguable'. However, ultimately, the submission made by NQLC in closing was to the effect that Mr Harris had not discharged his onus. NQLC contended that Mr Harris bore the forensic burden of demonstrating the negative proposition that there was no native title in respect of the Land and the evidence that had been led was insufficient to discharge that burden.

8    As to the history of native title claims in and around the Land, the unchallenged findings of the primary judge were to the following effect:

(1)    two determinations of native title had been made which overlapped Strathmore Station: at [5];

(2)    in 2015, Mr Harris wrote to NQLC confirming that he had filed his application for a determination that native title did not exist in the Land and seeking advice as to whether there was any potential native title claimant who may have an interest in the Land which was in a position to lodge a claim and receive registration: at [4], [160];

(3)    in 2019, a claim to a determination of native title in respect of land that included part of the Land (filed on behalf of the Kurtjar people in 2015) was amended to exclude any overlap with the Land: at [6], [163];

(4)    in 2022, Mr Harris again wrote to NQLC asking whether it was aware of any persons or groups who might hold native title in the Land: at [7], [164]-[166];

(5)    since 1997, seven applications for determinations of native title in respect of land near to or including part of the Land had been struck-out, discontinued or amended to exclude any overlap with the Land: at [8]; and

(6)    in 2021, Dr Kwok was engaged by NQLC 'to provide a report on substantive matters that were ultimately the subject of Dr Kwok's expert report prepared for this proceeding' which engagement included an instruction to 'conduct interviews by phone, video conferencing and face-to-face with people that assert native title interests in the area [being an area that includes the Land]': at [48].

The onus upon Mr Harris

9    The forensic task of an applicant for a determination that native title does not exist was the subject of detailed consideration by the Full Court in Mace v State of Queensland [2019] FCAFC 233; (2019) 274 FCR 41 (Jagot, Griffiths and Mortimer JJ) where the following propositions were stated (referring to the applicant for a determination that native title does not exist as the 'non-claimant applicant'):

(1)    whether the application is opposed or unopposed the question for the Court remains whether the applicant has discharged the burden of proof that no native title exists in the claim area: at [44], [64];

(2)    it is the probative strength of the evidence adduced that is to be weighed and assessed: at [51];

(3)    the Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: at [52];

(4)    conjecture as to what might emerge if further time was afforded is not a basis upon which to respond to an application for a determination that native title does not exist: at [54];

(5)    it is not necessary to deploy common law evidentiary or adversarial presumptions which have been developed in a different context where the well-established difficulties in bringing and maintaining claims for native title do not exist: at [56];

(6)    also, care must be taken in applying maxims of the common law which proceed on the basis that a party has 'power' to have produced certain evidence by reason of the disadvantages which may affect the power of litigants asserting native title to produce evidence of the kind to which the maxim applies: at [57];

(7)    as to (5) and (6), at [57]:

The better approach is to focus on what the evidence before the Court does establish - whether for or against the determination sought by the non-claimant applicant - and to give appropriate weight to aspects of the statutory scheme which are designed to have people bring forward all claims to native title over an area.

(emphasis added);

(8)    in cases where a Local Aboriginal Land Council or a long-term occupier of the land in question is well-placed to know about claims to native title then, in that particular circumstance, that is a matter that may be brought to account: at [57];

(9)    'The potential holders of native title may be unknown to the non-claimant applicant, or they may be known. The composition and constitution of any native title holding group may, in fact, be unknown even to all potential claim group members themselves'. The history of expulsion, exclusion and removal of people from their traditional country affects the way people may now come together as a claim group. These are further circumstances where resort to common law maxims 'may not … be the most useful approach': at [61];

(10)    in deciding whether to draw inferences from the absence of responses to a public notification process in respect of a non-claimant application, the Court should consider whether the absence of responses is a reliable indicator of the absence of any native title claim having regard to the process used and the history of claims as to the relevant area: at [65], [94]; and

(11)    'Account needs to be taken of the gravity of a negative determination, and its permanency': at [66]; see also [72].

10    Later in the reasoning in Mace, after considering the role of native title representative bodies in applications for determinations that native title does not exist, the Court concluded that it was part of the functions of such a body to provide 'some level of active, and proactive, engagement with a non-claimant application, notice of which is required to be given to the representative body': at [95]. Further, funding challenges were not a satisfactory explanation for inviting the Court to refuse to make a negative determination: at [97]. In that context, the Full Court said:

The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land and waters 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 [in providing] such evidence. To raise an objectively arguable claim of native title sufficient to mean that a non-claimant application needs to go to a full trial, the evidence of native title need not be extensive: it will be the quality of the evidence which is determinative.

(original emphasis)

11    As the primary judge correctly found, the above statement should not be read as suggesting that, in the absence of such evidence, a non-claimant application must succeed. Rather, the onus remains. The party seeking a determination that native title does not exist must still adduce evidence that discharges that onus and such an application can be successfully opposed on the basis that the evidence adduced is insufficient (even where no affirmative evidence is adduced to support the existence of an objectively arguable claim of native title).

The significance of the nature of native title for the discharge of the onus by an applicant for a determination that native title does not exist

12    The Preamble to the Native Title Act 1993 (Cth) sets out the considerations taken into account by Parliament in enacting the legislation. It includes the statement that '[i]t is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests'. As to the ascertainment of native title, the Preamble states:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

(emphasis added)

13    The Preamble also refers to the need for 'appropriate bodies [to] be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation'. The Native Title Act has detailed provisions for the funding of representative bodies with functions that include researching and preparing native title applications when requested to do so and to assist in promoting agreement as to the bringing of such applications: s 203B, s 203BB and s 203BF.

14    The Native Title Act recognises and protects native title: s 4(1), s 10. Amongst other things, it confers jurisdiction to make determinations of native title: s 4(7). Those determinations may be as to the existence or non-existence of native title: s 13(1), s 223. If native title is determined to exist then there must also be a determination as to the holders of that title and the nature and extent of their native title rights and interests (as well as the nature and extent of other interests in relation to the area the subject of the determination and the relationship between those interests and the native title interests): s 225. In all cases, the party seeking the native title determination bears the onus: Mace at [64].

15    References in the Native Title Act to native title rights and interests are to those rights and interests in relation to land or waters 'recognised by the common law of Australia' which are 'possessed under the traditional laws acknowledged, and the traditional customs observed' by a society of people where those people 'by those laws and customs, have a connection with the land or waters': s 223. The definition refers to the traditional normative system of laws and customs recognised within a society of Aboriginal peoples or Torres Strait Islanders that confers rights and interests in relation to land or waters that existed at the time of assertion of British sovereignty and has continued since then: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [37]-[50] (Gleeson CJ, Gummow and Hayne JJ).

16    The statutory reliance upon the common law, together with the fact that the Native Title Act is dealing with the intersection between that system of law and observed traditional systems of law unfamiliar to any common lawyer, mean that resort to a body of case law is required to understand the conception of native title to which the Native Title Act applies.

17    These matters assume considerable significance when it comes to understanding the ambit of the forensic task assumed by an applicant seeking a determination that native title does not exist in respect of a particular area. The extent of that task is marked out by the nature of the native title rights and interests described by the statutory definition. The burden to be discharged is the demonstration that there are no such traditional rights and interests in relation to the land and waters of the relevant area that find their source in a normative system of laws acknowledged and customs observed by a society of people that existed before the common law arrived and has continued since then.

18    Significantly, the traditional laws and customs of such a society may sustain connection to land or waters without members of the society being possessed of the land or waters in ways familiar to common lawyers. As the authorities demonstrate, the connection to land and waters under various traditional normative systems observed by Aboriginal and Torres Strait Islander peoples is spiritual and depends upon ancestral and traditional links to a place. They may not require regular or continued physical presence upon the land in order for the connection to be maintained. Rather, what is essential is the continuation of the societal normative system which confers the native title rights and interests in relation to the land and waters. There must be a practice of acknowledgment and observance of traditional laws and customs amongst a group of people that is the source of the requisite connection to the particular land and waters. As to these matters see the recent decision of the High Court in Stuart v South Australia [2025] HCA 12 at [18]-[26] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ), particularly at [24] where it was said:

Put in different terms, establishing 'connection' requires identifying the nature of the laws and customs by which that 'connection' arises but proving that 'connection' may not depend on evidence of physical acts of acknowledgment or observance in the claim area.

19    Dispossession of land does not equate to a loss of native title. Depending on their character, traditional rights and interests in land may be sustained where access to that land is prevented or difficult but connection subsists.

20    A traditional system of laws and customs is sustained by mechanisms that are unfamiliar to the common lawyer. Those mechanisms include the recognition by others of the status of particular people within a community, the mutual recognition of the association of particular people with particular places and the responsibilities of those people that relate to those places (and the common acceptance of the basis upon which that recognition occurs, such as descent, kinship and marriage), the acceptance of responsibilities of other group members when visiting those particular places, the recognition by the community that particular places are of spiritual significance for a person, the shared recognition of places of cultural significance, the mutual acceptance of practices to be observed in relation to particular places, the identification of those people who can confer permission to others to be on particular parts of the land and undertake particular activities, the common acceptance of mechanisms by which connection with particular places may be established for new group members or pass from one generation to the next, the performance of ceremony particularly as to initiation processes and birth rituals, the communication of stories which sustain places of cultural significance and the observance of cultural practices associated with connection to land or waters. It is the entirety of a system of acknowledgment and observance of traditional laws and customs of that kind that gives rise to a connection to particular land and waters.

21    Further, the cases show that the normative aspects of laws and customs observed that operate to confer rights and interests in relation to traditional lands derive from the established ways in which those within a community of people relate to each other and to particular lands and waters. The source of particular rights and interests in land of particular groups or individuals is societal. It is sustained by shared acknowledgment and observance, not by any form of codification. Consequently, knowledge of its detail is acquired over a lifetime of participation in those acknowledgments and observances. Taboos and other cultural practices may mean that there is no single repository of all laws and customs. In a real sense, the content of traditional laws and customs that result in the possession by the members of the society of their collected rights and interests in particular land and waters can only be understood by those who are immersed in its practices. The rights and interests are intrinsic. They do not need to be made explicit because they are sustained by observance in practice. Uncertainties are resolved by the respect afforded to the views of particular individuals.

22    The nature of the observances and acknowledgments that confer possession of rights and interests in land sustained by a traditional system through mechanisms of the kind just described are such that those rights and interests may exist without the kinds of activities and actions that would be associated with the assertion of an interest in land of a kind that is recognised by the common law.

23    Consequently, proving the absence of these things requires a different forensic approach to that which might be taken when seeking to prove the absence of a real property interest of a kind recognised by the common law (and the legislation concerned with interests in land that is founded upon common law conceptions).

24    Equally, there is much of current significance that has its origin in a culture that extends back tens of thousands of years that has been sustained despite the injustices of colonisation yet is not a foundation for native title. Put another way, without diminishing the deep importance of ancestral connection for identity, a determination that native title does not exist is not an adjudication as to whether there are Aboriginal or Torres Strait Islander people who may be able to trace their ancestry to the people who formed part of a traditional society in respect of a particular place or the undoubted ongoing significance of those origins in a broad sense. Rather, it concerns only the extent to which there remains a present system of observed traditional law and custom which is the source of rights and interests in relation to particular land which system is a continuation of that which existed when the Crown asserted sovereignty (making due allowance for change to, or adaption of, that system of law and custom of a kind which is consistent with its continuation). It requires that which 'can still be seen to be traditional law and traditional custom' as now observed to be a continuation of that which was, and for that traditional law and custom to be the source of ongoing connection to land: Yorta Yorta at [83]-[86].

25    Hence, a claim to native title depends as much upon present societal acknowledgment of law and custom as it does upon the demonstration of continuity. Although considerable difficulties may be confronted for Aboriginal and Torres Strait Islander peoples in being able to demonstrate continuity by reason of the passage of time, external disruption of cultural practice and reliance upon oral traditions, they are not the difficulties confronted in relation to the bringing forth of evidence of present acknowledgement and observance of law and custom. Instead, the difficulties as to the present system principally concern the availability of representation to organise and bring forth available evidence of present acknowledgment and observance. As was explained in Mace, the responsibilities given to representative bodies by the Native Title Act have significance when it comes to considering whether an applicant for a determination that native title does not exist in respect of an area has discharged their forensic burden. Even so, as has been explained, the nature of native title is such that considerable care must be taken in reaching conclusions as to present acknowledgement and observance of traditional law and custom from observations made through a common law lens. That is especially the case where there has been no identifiable extinguishing act.

Matters of forensic significance in the present case

26    It follows from the above that three things are significant for present purposes. First, considerable care must be exercised in reaching conclusions as to whether it has been demonstrated by an applicant that native title does not exist in an area based upon the extent to which there has been observed presence of Aboriginal people on the land in issue. Second, in considering whether Mr Harris had discharged his onus it was relevant to bear in mind that NQLC had responsibilities under the scheme established by the Native Title Act to advance any claims to native title where requested to do so and a very considerable amount of time had been afforded for that to occur especially when it came to identifying present acknowledgement and observance of traditional law and custom. Third, the history of determinations established that over many years much had been done to advance native title claims in and around the Land but, despite that, no applications had been maintained in respect of the Land.

27    Also of significance was the fact that the proceedings before the primary judge were conducted on the basis that native title existed at effective sovereignty but that there was a dispute as to the identity of those Aboriginal people who held rights and interests under the laws and customs of the society that was in existence at that time and as to the content of those laws and customs. Those matters had significance for the way that Mr Harris sought to support his application. It was contended for NQLC that, by reason of the acceptance that there had been an Aboriginal society in respect of the Land which held rights and interests in the Land, for Mr Harris to discharge the onus of proof it was necessary for him to identify the apical ancestors with traditional connections to the Land at effective sovereignty and then establish that there were no descendants of those apical ancestors or that those descendants who remained had lost native title by reason of a failure to continuously observe law and custom.

28    Respectfully, that submission cannot be accepted. It would mean that the Court could never conclude that native title no longer existed without evidence establishing who had been the past holders of native title or that there had been no such holders at effective sovereignty. Having due regard to the nature of native title, for reasons that have been given, it is still forensically possible to demonstrate that there are no present holders of native title without knowing what the past position may have been. That is to say, evidence as to the current position may be enough. Of course, as has been explained, whether the evidence that is adduced in a particular case is sufficient to reach such a conclusion must be evaluated having regard to the nature of native title and a proper understanding of the ways in which such rights and interests may be sustained, including the difficulties that may be faced in bringing applications for determinations of native title. However, proper regard to those matters may still enable a Court to conclude that the absence of any claim being made by a community of people based upon their current acknowledgement of laws and observance of customs, when taken with other circumstances, discharges the onus of proof upon an applicant for a determination that native title does not exist. They include the history of claims in an area and the failure to bring forth matters that support a claim. So much is evident from the reasoning in Mace, particularly those aspects concerned with the responsibilities of a representative body such as NQLC to take steps to bring forth any objectively arguable claim in response to any such application.

Ground 1: Alleged errors as to the onus of proof

29    The contention advanced by NQLC in support of its first ground was that despite the correct statement by the primary judge as to the principles to be applied when it came to the onus to be discharged by Mr Harris, in a number of instances the primary judge had placed the onus on NQLC.

30    The first instance was alleged to have arisen when the primary judge was considering the question of continuity. In that context, her Honour reasoned at [141] as follows:

The Full Court in Mace observed that it is the quality of evidence of native title that is determinative, and such evidence need not be extensive: Mace at [97]. Leaving aside common law presumptions, it is nevertheless relevant when considering the whole of the evidence adduced at trial, that if the quality of that evidence is poor, and there is evidence that potential evidence had been assessed by a party and discarded, it may be inferred that the evidence which has been adduced is the best available to that party.

(original emphasis)

31    The submission made by NQLC was to the effect that the above reasoning was contrary to statements in Mace that common law presumptions should not be used as a back door alteration to the onus of proof. It was said that her Honour had erred by approaching the material before the Court on the basis that the discharge of the onus that fell upon Mr Harris might be aided by some form of presumption that could establish affirmatively that continuity had not been maintained.

32    We do not understand the reasoning of her Honour to be of the kind that was submitted. It went no further than reasoning that evidence that NQLC had adduced was the best that was available to NQLC in circumstances where her Honour had already dealt with the steps that had been taken to engage Dr Kwok and for Dr Kwok to undertake interviews of those who might have a claim to native title in the Land. Significantly, it immediately preceded a consideration of the lay evidence. In context, it was no more than a conclusion that NQLC did not have better evidence available to it as a party. It enabled the primary judge to approach the evidence of the four Aboriginal witnesses as to continuity as the best evidence available to NQLC. That is to say, it was not the case that the witnesses were a sample with the possibility that there may be other witnesses who could give better evidence as to issues relevant to continuity.

33    The reasoning of the primary judge did not go so far as to found a conclusion that there had been no continuity because NQLC had not adduced evidence of continuity. Indeed, no submission was advanced which indicated any aspect of her Honour’s reasons where the proposition stated in [141] had been used in that way.

34    Rather, the reasoning of the primary judge as to continuity was undertaken by reference to evidence as to current and recent circumstances. It involved the following:

(1)    acceptance of the evidence of Mr Harris that the Land was difficult to access and that over the last 18 years no Aboriginal person had sought access to the Land: at [172];

(2)    acceptance of the evidence of Mr Harris that to the best of his recollection none of the Aboriginal people who had worked on Strathmore Station had claimed to have native title rights or interests in the Land: at [172];

(3)    a finding on the balance of probabilities that the Tagalaka people did not have an interest in the Land at effective sovereignty (at [106], [173]) (a finding made before the reference to the inference as to the best evidence available to a party and without any application of any proposition of that kind);

(4)    a finding that of the four Aboriginal witnesses, two pressed their claims as living descendants of Tagalaka apical ancestors: at [178]; and

(5)    reasoning as to the evidence bearing upon apical ancestors and continuity (without applying any inference based upon the best evidence available to NQLC): at [174]-[252].

35    Thereafter, the reasoning of the primary judge turned to connection: at [253]ff.

36    Finally, as has been explained, it was not the case that Mr Harris had to adduce evidence which identified who the apical ancestors were in order to discharge the onus. Absence of continuity may be demonstrated affirmatively by showing that there had been ample opportunity to bring forth evidence of the present existence of a continuing society and the extent of the claims that had been made together with the insufficiency of the evidence that was presented at a final hearing where it may be inferred that it was the best evidence available to the body responsible for bringing forth such claims.

37    The second instance of alleged error as to onus was said to be evident in the following reasoning at [187] by the primary judge in the course of dealing with continuity:

In the event I am wrong about finding that the Tagalaka people did not have an interest in the Non-claimant Area as at Effective Sovereignty, the relevant question is whether there is any arguable assertion of native title by anyone in the present day who traces their claim back through Tagalaka rights and interests in the Non-claimant Area which existed as at Effective Sovereignty. Of course, it is in this context that it is necessary to address the question of whether it is possible to identify the apical ancestors who had rights and interests in the Non-claimant Area.

38    The phrase 'arguable assertion of native title' appears to reflect the way in which the evidence advanced in support of the affirmative case presented by NQLC was characterised before the primary judge. As we have explained, her Honour correctly rejected any claim that the discharge of the onus by Mr Harris depended upon whether there was an objectively arguable claim of native title. At this point in the reasons, her Honour is dealing with that part of the affirmative evidence advanced by NQLC to the effect that there was an arguable claim. Ultimately in closing submissions, as has been explained, NQLC contended that Mr Harris had failed to adduce affirmative evidence sufficient to discharge his onus. However, that did not mean that the primary judge was relieved of considering the whole of the evidence. There remained the possibility that there was forensic significance in the evidence that had been led by NQLC (and the circumstances in which it had been led, relevantly in proceedings that had been on foot for some nine years and where Dr Kwok had undertaken the work that she had been engaged by NQLC to undertake). We are not persuaded that the fact that her Honour dealt with this part of the evidence on the basis upon which it had been advanced (as affirmatively establishing a basis for asserting native title) as indicating that her Honour otherwise departed from her clear and correct statement that the onus was upon Mr Harris.

39    The third instance of alleged error as to onus concerns the concluding sentence after the primary judge had dealt with the evidence of two of the Aboriginal witnesses to the effect that there had been a maintenance of connection. It was as follows (at [274]):

Consequently, I find, on the balance of probabilities, that there are no Tagalaka persons who make an arguable assertion of native title to the Non-claimant Area.

40    Again, this formulation of language reflects the basis upon which the evidence was advanced by NQLC, namely that it supports an arguable assertion of native title. It does not indicate that as to the overall findings her Honour was approaching the application on the basis that there was an onus upon NQLC.

41    The fourth instance of alleged error concerns the concluding sentence in dealing with the evidence of Ms Mudd, one of the other two Aboriginal witnesses. It was as follows (at [283]):

I am satisfied, on the balance of probabilities, that Ms Mudd has not maintained any connection, either physical or spiritual, with the Non-claimant Area sufficient to ground an arguable assertion of native title to the Non-claimant Area.

42    A finding expressed in those terms simply reflects the fact that the primary judge had to consider the evidence of Ms Mudd and make findings as to whether that evidence was to be accepted. The language used is a way of expressing a rejection of that evidence to the extent that it sought to demonstrate that she had maintained any connection with the Land.

43    Finally, in the course of oral submissions, senior counsel for NQLC embraced the proposition that in the final conclusion, the primary judge had expressed matters in terms of non-persuasion on the balance of probabilities of certain things as distinct from affirmative persuasion on the balance of probabilities as to those things. The relevant statements were at [311] of her Honour’s reasons which was expressed as follows:

I am, however, not persuaded that:

1.    it is possible to identify who, as an apical ancestor, more probably than not, held rights and interests in the Non-claimant Area at Effective Sovereignty;

2.    it is therefore possible to identify contemporary descendants of the Aboriginal people or peoples who, more probably than not, held rights and interests in the Non-claimant Area at Effective Sovereignty;

3    on the balance of probabilities, there are any contemporary descendants of the Aboriginal people or peoples who, more probably than not, held rights and interests in the Non-claimant Area at Effective Sovereignty, and who have maintained a connection with the Non-claimant Area;

4.    on the balance of probabilities, there has been a continuity of observance and acknowledgment of traditional laws and customs in the Non-claimant Area;

5.    on the balance of probabilities, any contemporary Aboriginal people hold rights and interests in the Non-claimant Area based on their traditional law and customs.

(original emphasis)

44    However, it must be observed that this reasoning was preceded by the following (at [305]-[309]) under the heading 'Disposition':

Mr Harris adduced positive evidence of the absence of native title in the Non-claimant Area. That evidence took the form of his own testimony as to the absence, over nearly two decades past, of any Aboriginal person having sought access to the Non-claimant Area, of any Aboriginal person who has worked on Strathmore Station having claimed to have native title rights or interests in the Non-claimant Area, and of encountering any Aboriginal person, other than his employees, in what is the remote and inaccessible terrain of the Non-claimant Area.

His testimony is supported by the absence of any present claim by any peoples over the Non-claimant Area, despite this proceeding having commenced in 2015 and by the only other unresolved claim in relation to land which partially overlaps the Non-claimant Area, having been discontinued in 2004. As to this, I give weight to those aspects of the statutory scheme established under the NTA which are designed to have people bring forward all claims to native title over an area: Mace at [57].

Further support for Mr Harris' assertion of an absence of native title in the Non-claimant Area is found in the expert evidence provided by Dr Clarke, who was called by Mr Harris and also, in some respects, by Dr Kwok, who was called by NQLC.

NQLC submitted that the evidence of its four Aboriginal witnesses, together with the expert evidence provided by Dr Kwok, was of such weight as to cast doubt on Mr Harris' assertion that ongoing connection, and the substantially uninterrupted observance of traditional laws and customs, was lost in relation to the Non-claimant Area at some point in time subsequent to Effective Sovereignty. In support of that submission, the State submitted the evidence adduced by NQLC amounts to an assertion of native title, underpinned by evidence of witness' historical presence on the land and waters of the Non-claimant Area and transmission to them of cultural knowledge of the boundaries of country, its avoidance places and site-specific stories, sufficient to raise an issue as to the existence of native title.

For the reasons I have given, contrary to the submissions of NQLC and the State, and having regard to the whole of the evidence, the evidence adduced by NQLC as to the existence of native title does not cast sufficient doubt on Mr Harris' assertion of an absence of native title in the Non-claimant Area.

45    The concluding paragraph from the passage of reasoning just quoted is an introduction to what follows, including the statements as to what her Honour was not persuaded of when it came to the evidence adduced by NQLC as to the existence of native title. The paragraph follows a clear statement that the application is being disposed of on the basis that Mr Harris has positively established various matters to support his application for a determination that native title does not exist in the Land. Then, her Honour deals with the evidence that had been advanced by NQLC to answer the claim. By concluding, on the balance of probabilities, that the evidence led by NQLC in an effort to establish an objective basis for the assertion of native title fails to establish that which it was said by NQLC to establish, does not mean that her Honour imposed any onus upon NQLC. It is simply concluding that the evidence led by NQLC did not establish that which it sought to establish. The earlier part of the reasoning under the heading 'Disposition' makes clear that the evidence identified by her Honour (as relied upon by Mr Harris) did not cause her Honour to doubt the assertion advanced by Mr Harris (noting that the term 'assertion' reflects the language used in Mace to distinguish between a case that was asserted based on objective evidence rather than the potentiality for such a case).

46    Finally, we note that the State also relied upon passages in the reasons of the primary judge which described the case advanced by Mr Harris as involving contentions that there was 'no evidence' (at [139]) or a 'paucity of evidence' (at [179]) adduced by NQLC to support certain matters as evidence of a reversal of the onus. In our view, those parts of the reasons do no more than state the contentions being advanced by Mr Harris as part of the overall claim that his application should succeed. They should not be read as her Honour departing from the earlier clear statements to the effect that the onus was upon Mr Harris.

47    As to the statement at [141] of the primary judge’s reasons to the effect that it may be inferred in the circumstances that 'the evidence which has been adduced is the best available to that party', the State submitted that it involved reasoning to the effect that because the evidence from NQLC was not good enough it must follow that there are no people who have native title. It was said to be reasoning that only worked if NQLC was under a burden to bring its best case when the onus was on Mr Harris.

48    For reasons that have been given, considered in the context of the whole of the primary judge's reasons, the statement made was not deployed in the way submitted by the State. It was only used to reason as to the evidence that was available to NQLC. No criticism could be made of that kind of reasoning provided there was also regard to all of the circumstances, including the matters we have described that relate to the bringing forth of native title claims, in reaching any conclusion as to whether the onus of proof was discharged. Regard to the whole of the reasons shows that the primary judge did consider other evidence as to the bringing forth of such claims and did not rest upon a form of reversal of the onus of proof of the kind contended for by the State in its submissions. To reason that there has been a long period of time in which to bring forth claims during which time there have been invitations to NQLC to identify possible claimants, there has been a history of obtaining determinations of native title in relation to the broader area, there has been work undertaken by Dr Kwok to identify possible claimants and that it could be inferred, in the circumstances, that the evidence that was adduced by NQLC was the best evidence that was available, did not involve a reversal of onus. Each of those matters were facts that were established before her Honour from which conclusions could be reached as to whether there was native title. It was not the case that her Honour reasoned from an absence of evidence or otherwise imposed an onus upon NQLC.

49    Therefore, ground 1 has not been established.

50    We wish to add that ground 1 was advanced on the basis that if it was sustained the appropriate order was for the matter to be remitted to the primary judge. NQLC accepted that to succeed on its ground 1 it had to demonstrate both error of the kind alleged and that the error affected the entire conclusion. We were not persuaded that the errors as alleged, if upheld, in and of themselves would have justified a remitter. NQLC did not articulate why the Full Court could not deal with the merits of the appeal if errors as to onus were demonstrated or identify any reason why it was appropriate in all the circumstances for the matter to be remitted rather than the Full Court reach a conclusion that rectified the error.

51    The State did not object to the course advanced by NQLC but maintained that remitter was not necessary because ground 1, if accepted, would expose a failure by Mr Harris to demonstrate by affirmative evidence that there was no connection between those who were accepted to have held native title at the time of effective sovereignty (who had not been identified). The submission was to the effect that the case for Mr Harris could not be established by showing that there had been a failure to bring a claim. Such an approach was said to involve a reversal of the onus. For reasons that have been given, that contention should not be accepted. As has been explained, considerable care must be exercised when reaching conclusions based, in part, upon the failure to bring a claim of native title. There should be regard to the difficulties that may be faced in bringing a claim and the consequences of a negative determination. There should also be due regard to the nature of a native title claim in reaching conclusions as to what has been established by an applicant. However, it is not the case that the reasoning by the primary judge in relying upon the history that had occurred in relation to claims without a claim being brought forth (and conclusions that the four Aboriginal persons who did give evidence did not have claims of presently continuing acknowledgment and observance of relevant traditional laws and customs) involved a reversal of the onus.

Grounds 4 and 5: Alleged factual errors as to apical ancestry

52    Grounds 4 and 5 are related in that ground 4 challenges a finding of fact by the primary judge and ground 5 contends that her Honour addressed the wrong question when making that finding of fact. Ground 4 is directed to the primary judge’s finding (at [234]) that the apical ancestor Sloper Mudd 'cannot be accepted as an apical ancestor for the Non-claimant Area'. NQLC contends that this finding was erroneous because it was 'contrary to compelling inferences' available from the evidence adduced at trial. By ground 5, NQLC contends that the question the primary judge should have asked was whether it was more likely than not that Sloper Mudd held native title rights and interests in any part of the Land.

53    We accept Mr Harris' submission that both grounds 4 and 5 are properly to be regarded as either inconsequential or irrelevant, depending on the conclusion reached in relation to ground 1.

54    For these reasons, and bearing in mind the importance of judicial economy, it is neither necessary nor appropriate for us to deal with grounds 4 and 5: Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ). Even if upheld, grounds 4 and 5 could not provide a basis for the remittal order that was sought, and we were not invited to make any findings of fact about them.

Ground 7: Alleged error in approach as to continuity

55    The final ground of appeal is to the effect that the primary judge approached the issue of continuity on the basis that the relevant traditional law or custom acknowledged or observed had to be specific to the Land when there was no requirement that the laws or customs being acknowledged or observed were specific to the Land.

56    This ground, even if established, could not provide a basis for a remittal order. That is because the primary judge's conclusion did not rest only upon conclusions as to an absence of maintenance of connection. As is evident from [311] quoted above, her Honour was also not persuaded that there had been a continuity of observance and acknowledgment of traditional laws and customs.

57    The reasons of the primary judge also involved accepting that the absence of any present claim despite (a) the proceedings having commenced in 2015; (b) the only other unresolved claim having been brought over any part of the Land having been discontinued in 2004; (c) the statutory scheme which was designed to bring forward claims; and (d) an available inference in all the circumstances that the evidence that was adduced by NQLC as the body responsible for bringing forth claims was the best evidence available to NQLC when taken together with the evidence of Mr Harris, were all matters that supported the conclusion that Mr Harris had discharged his onus. It also involved the conclusion that there was support for the absence of any assertion of native title in the expert evidence (see [307], noting that the reasons had also dealt with concerns on the part of the primary judge with the way Dr Kwok had undertaken interviews and the critique of Dr Kwok's evidence by Dr Clarke). These matters together formed the basis for the conclusion that the application should be allowed and the determination sought by Mr Harris made.

58    In order for a ground like ground 7 to sustain a remitter it would need to be demonstrated that the ground, if upheld, had some consequence for the overall conclusion reached by the primary judge. Despite the Court raising concerns as to the deficiencies of the appeal grounds before the hearing of the appeal, NQLC advanced no submissions seeking to demonstrate the way in which the ground, if upheld, had consequences for the outcome of the appeal.

59    For those reasons, we would not uphold ground 7.

Conclusion and orders

60    Therefore, the appeal must be dismissed. Our present inclination, having regard to s 85A of the Native Title Act, is that there should be no order as to costs. Nonetheless, noting the stated positions of NQLC and Mr Harris on the question of costs, there will be orders providing for written submissions in relation to costs should Mr Harris seek to advance a contrary position. If Mr Harris does not do so the order of the court will be that there be no order as to the costs of the appeal.

Associate:

Dated:    21 May 2025