FEDERAL COURT OF AUSTRALIA

Kennedy v State of Queensland [2002] FCA 747

NATIVE TITLE – application pursuant to s 86G of the Native Title Act 1993 (Cth) for an order that native title does not subsist over property subject to a pastoral lease – jurisdictional preconditions for the making of such an order – factors to be considered in the exercise of the discretion.

Native Title Act 1993 (Cth), ss 4(c), 13(1)(a), 61, 66(3)(a), 86G, 87, 225, 253, Pt 11

Land Act 1910 (Qld), s 40(2)(d)

Land Act 1962 (Qld)

Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229, applied.

Members of the Yorta Yorta Aboriginal Community v State of Victoria (1999) 4 AILR 91, cited.

Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244, cited.

Application by the Metropolitan Local Aboriginal Land Council [2001] FCA 605, cited.

Applications by the Deniliquin Land Council [2001] FCA 609, cited.

Darkinjung Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2001] FCA 1124, cited.

Kelly on behalf of the Byron Bay Bundjalong People v NSW Aboriginal Land Council [2001] FCA 1479, cited.

Wik Peoples v Queensland (1996) 187 CLR 1, cited.

Mabo v Queensland (No 2) (1992) 175 CLR 1, cited.

S Beesley, “The Role of the Federal Court when Parties Reach Agreement: s 87 of the Native Title Act 1993” (2001) 5:1 Native Title News 5

NOEL JOHN MICHAEL KENNEDY v STATE OF QUEENSLAND

QG 6303 of 1998

SACKVILLE J

SYDNEY

13 JUNE 2002

THE COURT ORDERS THAT:

Native title does not exist in relation to all that land known as Castle Hill Holding being Lot 4721 on Crown Plan PH1874 situated in the County of Wokingham, Parish of Calista (tenure reference PH45/4721).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE APPLICATION

1                     This is an application by the holder of a pastoral lease of a property near Winton in Queensland, pursuant to s 86G of the Native Title Act 1993 (Cth) (“Native Title Act”), for an order that

“native title does not exist in relation to all that land known as Castle Hill Holding being Lot 4721 on Crown Plan PH1874 situated in the County of Wokingham, Parish of Calista (tenure reference PH45/4721).”

I shall refer to the relevant land as “Castle Hill Holding”.

2                     The present proceedings were commenced on 3 December 1998 as a non-claimant application for a native title determination pursuant to s 61(1) of the Native Title Act 1993.  Section 86G of the Native Title Act empowers the Court to make certain orders in what the heading to the section describes as “unopposed applications”.  Section 86G provides as follows:

“(1)     If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:

(a)               the application is unopposed; and

(b)               the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court;

the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing.

  (2)     For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.”

3                     The only party to the non-claimant application at present, other than the applicant, is the State of Queensland.  It has notified the Court in writing that it does not oppose the order in the terms sought by the applicant.  At an earlier stage of the non-claimant proceedings, the Koa People were also parties but they have since withdrawn.  The Koa People have not actively opposed the order sought by the applicant.  They have not, however, formally notified the Court in writing that they do not oppose an order in the terms sought by the applicant.

the non-claimant proceedings

4                     Section 61 of the Native Title Act specifies the applications that may be made to the Federal Court under the Act.  These include a “native title determination application” which may be made, inter alia, by 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” (61(1)(2)).

Section 225 of the Native Title Act provides that a determination of native title

“is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters…”.

A native title determination application may be a “claimant application” or a “non-claimant application”.  A claimant application is a native title determination that a native title claim group has authorised to be made (s 253).  A non-claimant application is defined to mean “a native title determination application that is not a claimant application”. 

5                     In the non-claimant application, the applicant sought an order that

“native title rights and interests do not exist on the area covered by this application [that is, Castle Hill Holding]”.

Castle Hill Holding comprises 23,800 hectares (238 square kilometres) and is located in the Winton District of Western Queensland.  It is mostly scattered gidgee timber country with patches of pebbly downs and Mitchell grass, interspersed with channels and ironstone ridges.  There are some spinifex hills in the western area of the holding.  The only significant natural feature is Castle Hill itself, a mostly flat-topped hill which includes a rock feature resembling a castle tower.

6                     The evidence establishes that the applicant has been in continuous possession of Castle Hill Holding since December 1951, a period of over fifty years.  He first acquired an interest under a “Preferential Lease of a Pastoral Holding” granted pursuant to the Land Act 1910 (Qld), on 31 January 1952.  That lease was expressed to operate for a term of thirty years from 1 January 1952, although it was subsequently extended and remained in force until the applicant’s current lease took effect in April 1983.

7                     The applicant’s current “Lease of Pastoral Holding” was granted to him under the Land Act 1962 (Qld) on 27 October 1983, and was expressed to take effect for a term of thirty years from 1 April 1983.  The term of the lease has since been extended by twenty years, so that it is now scheduled to expire in 2033.

8                     Section 66(3)(a) of the Native Title Act requiresthe Native Title Registrar (“the Registrar”) to give notice containing details of a non-claimant application to certain persons or bodies.  In conformity with this requirement the Registrar, on 7 June 1999, notified the following of the non-claimant application relating to Castle Hill Holding:

• the Gurang Land Council as the representative Aboriginal and Torres Strait Islander body for the relevant area (see Native Title Act, Part 11);
• the Minister for Aboriginal and Torres Strait Islander Affairs; and
• Winton Shire Council, as the Local Government body for the relevant area.

In addition, a copy of the notice was forwarded to certain other bodies or entities, including the State of Queensland.  The notification period closed on 7 September 1999.

9                     On 24 May 1999, before the notification of the non-claimant application, Robert George Duncan and Robert Clive Beckett, for and on behalf of the Koa People, instituted a separate claimant application under s 61 of the Native Title Act.  In this application, the Koa People asserted native title interests over Castle Hill Holding and in respect of the Bladensburg National Park, situated a considerable distance to the east of the property.  On 12 April 2000, an order was made that Mr Duncan and Mr Beckett on behalf of the Koa People be joined as respondents to the applicant’s non-claimant application.  The State of Queensland had previously been joined as a respondent.

10                  On 6 July 2000, orders were made that the non-claimant application be heard and determined together with that part of the claimant application that related to Castle Hill Holding.  Orders were subsequently made in the claimant proceedings requiring the Koa People to provide particulars of their claims by 14 September 2001.  The latter orders were not complied with.

11                  On 12 December 2001, further orders were made in both proceedings.  The orders in the present proceedings (the non-claimant application) required the applicant to file and serve a statement of claim by 31 January 2002 and each respondent to file and serve a defence by 28 February 2002.

12                  The applicant complied with the direction.  The statement of claim made the following principal allegations:

• Castle Hill Holding had been occupied and used continually for pastoral purposes since 1876;
• Castle Hill Holding had been fenced completely at least since 1961 and substantially since 1920;
• since Castle Hill Holding had been completely fenced the only lawful access to it had been by use of the sealed public road known as the Winton-Boulia Highway, which traverses the holding, or by an unconstructed stock route which crosses the north eastern portion of the holding linking two adjoining properties;
• the applicant had been the registered lessee and had lawfully resided on and occupied Castle Hill Holding since January 1952;
• no Aboriginal person had resided on Castle Hill Holding since at least 1962;
• no Aboriginal person had entered Castle Hill Holding since 1952, except to work as a ringer, shearer or fencer; nor had any such person exercised or purported to exercise any native title right since 1952; and
• native title did not exist in relation to Castle Hill Holding.

13                  The Koa People did not file a defence in the non-claimant proceedings.  On 15 March 2002, I granted leave to Mr Duncan and Mr Beckett for and on behalf of the Koa People to withdraw as a party to the proceedings.  I also granted leave to the Koa People to discontinue the claimant proceedings.  At that time, and at all other material times, the Koa People were legally represented in both the non-claimant and claimant proceedings. 

14                  A notice was duly filed pursuant to the grant of leave whereby the Koa People notified the Court that they wished to cease being a party to the non-claimant proceedings.  The notice was filed pursuant to s 84(7) of the Native Title Act which provides that in addition to any other rights to withdraw from the proceedings, any party, other than the applicant, may, with the leave of the Court, cease to be a party.

15                  On 15 March 2002, the applicant filed an amended motion seeking the order under s 86G of the Native Title Act to which reference has been made (see [1] above).  The motion and the affidavits in support have been duly served on the Gurang Land Council, notwithstanding the withdrawal of the Koa People from the proceedings.  The State of Queensland, as I have already noted, has notified the Court that it does not oppose the order sought in the amended motion.

the evidence

16                  The evidence read in support of the applicant’s motion addressed the history of the proceedings and the “tenure history” of Castle Hill Holding.  I have recounted the history of the proceedings so far as is relevant.

17                  It is not necessary to recite the detail of the tenure history.  It is enough to say that with the exception of some brief periods, since about the mid 1880s Castle Hill Holding has been the subject of runs, pastoral holdings or leases and occupational licences.  Until 1950, Castle Hill Holding, for the most part, was included within much larger leasehold or licence areas.  There was a short hiatus from September 1950 until January 1952, when the applicant was granted the Preferential Pastoral Lease currently in force.  During this period Castle Hill Holding was made available for preferential pastoral holding (a form of pastoral tenure that requires the holder to reside on the property for the first seven years of the lease: see Land Act 1910 (Qld), s 40(2)(d)) and it apparently took about fifteen months for the grant to be made.

18                  The applicant swore a detailed affidavit outlining his own activities on Castle Hill Holding, the extent to which he was aware of Aboriginal contact with the land and his knowledge of the use of the land in earlier times.  The principal points to emerge from the applicant’s evidence (which of course was uncontradicted) are these:

• at the time he acquired the holding through a land ballot in 1951, there were substantial improvements on Castle Hill Holding, including substantial boundary fencing, buildings and dams;
• some fencing on the holding dated from approximately the 1880s and other fencing from about the First World War, a conclusion the applicant drew from the nature of the fencing materials and the extent of their deterioration;
• during the applicant’s first five years of occupation, his main focus was on fencing the property, work he largely carried out himself;
• from the beginning of his occupation, Castle Hill Holding was a working pastoral property stocked with cattle and, from 1958, with sheep;
• it was possible that some men of Aboriginal descent may have worked for contractors on Castle Hill Holding prior to 1970, usually carrying out fencing or maintenance or acting as stockmen, but they were on the property only for short periods;
• to the applicant’s knowledge no persons of Aboriginal descent had been present on Castle Hill Holding since 1952 except for work;
• after 1962, the applicant had never employed anyone of aboriginal descent on Castle Hill Holding;
• the only public means of access to Castle Hill Holding was the Winton-Boulia highway;
• the old stock route which crosses the northeast corner of Castle Hill Holding had not been used since 1952; and
• apart from employees and contractors, the only people who had access to Castle Hill Holding from time to time were commercial kangaroo hunters, none of whom was of Aboriginal descent.

19                  The applicant concluded his affidavit as follows:

“I have travelled regularly over the whole of Castle Hill [Holding] (and some neighbouring properties) since commencing occupation there in December 1951.  I have never seen or heard of any Aboriginal persons searching for or consuming bush tucker, or searching for or using bush medicine on or near Castle Hill [Holding].  Nor have I ever seen or heard of any Aboriginal person participate in any Aboriginal ceremony or observe or perform any tradition, custom or other ritual on or near Castle Hill [Holding].  Nor have I seen or heard of any artefact or other sign of use or occupation of Castle Hill [Holding] by Aboriginal people.

Nor, with the exception of the claim made on behalf of the Koa People in respect to my non-claimant application (since discontinued), have I ever heard any assertion by or on behalf of any Aboriginal person of a connection with or interest in any part of Castle Hill [Holding].”

reasoning

Jurisdictional Preconditions

20                  In Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229 (“Gunggari People”), Emmett J described (at [5]) the conditions specified in s 87(1) of the Native Title Act, which deals with the powers of the Court when the parties have reached agreement, as “jurisdictional pre-conditions” to the exercise of the powers conferred by the section.  The structure of s 86G(1) is very similar to that of s 87(1).  In my opinion, Emmett J’s description of the requirements in s 87(1) can be applied to the conditions specified in s 86G(1) of the Native Title Act. 

21                  I must therefore be satisfied that

• the non-claimant application is “unopposed” as that term is defined in s 86G(2) of the Native Title Act; and
• an order in, or consistent with the terms sought by the applicant is within the power of the Court.

22                  Following the withdrawal of the Koa People from the non-claimant proceedings, the only remaining party was the State of Queensland.  As I have noted, the State has indicated in writing that it does not oppose the order sought by the applicant.  On the face of it, the definition of “unopposed” in s 86G(2) is satisfied.

23                  It is, however, necessary to take account of s 84(3) of the Native Title Act, which applies to the non-claimant proceedings instituted by the applicant (see s 84(1)).  Section 84(3) provides as follows:

“Another person is a party to the proceedings if:

(a)           any of the following applies:

(i)                 the person is covered by paragraph 66(3)(a);

(ii)               the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)             the person’s interests may be affected by a determination in the proceedings; and

(b)           the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceedings.”

24                  Section 84(3) at least arguably, applies to the Koa People, since their interests might be affected by a determination in the non-claimant proceedings (s 84(3)(a)(iii)).  Moreover, while they were not joined as parties to the non-claimant proceedings until April 2000, well after the closure of the notification period, it might be said that they had notified the Court in writing during that period of their desire to be a party to the non-claimant proceedings (see s 66(3)(a)).  If s 84(3) does apply to the Koa People, its effect is to deem them to be parties to the proceedings: Gunggari People, at [8]-[10].   It is true that the actions of the Koa People strongly indicate that they do not oppose the order sought by the applicant.  They have discontinued their claimant application and withdrawn from the non-claimant application.  Furthermore, despite the Gurang Land Council being served with the motion and supporting affidavits, the Koa People have not appeared to oppose the motion.  Even so, the Koa People have not formally notified the Court in writing that they do not oppose the order sought by the applicant.

25                  Despite the possible application of s 84(3) of the Native Title Act to the Koa People and the absence of any written notification from them, I am satisfied that the non-claimant application is “unopposed” within the meaning of s 86G(2) of the Native Title Act.  Section 86G(1) applies if “at any stage of a proceeding” the application is unopposed.  The question is, therefore, whether the application is now unopposed in the relevant sense.  In my view, although s 84(3) at one time may have deemed the Koa People to be parties to the application, the subsection no longer had that effect once the Koa People exercised their right to withdraw, by leave, from the proceedings pursuant to s 84(7) of the Native Title Act.  Section 84(3) cannot have been intended to deem a person to be a party to an application where that party has withdrawn from the proceedings in a manner specifically contemplated by s 84(7).  In other words, at the relevant “stage of [the] proceedings” (that is, when the motion was heard) the non-claimant application was unopposed within the meaning of s 86G(2) of the Native Title Act.

26                  I am also satisfied that the Court has power to make the order sought by the applicant.  This follows from the statutory scheme. The Court has jurisdiction to hear and determine applications that relate to native title: s 81.  An application may be made to the Court under Part 3 of the Native Title Act for a determination of native title in relation to an area for which there is no “approved determination of native title” (that is, no prior determination): s 13(1)(a).  A determination of native title includes a determination that native title does not exist in relation to a particular area: s 225.  A person, like the applicant, who holds a non-native title interest in relation to the relevant area may apply for a native title determination: s 61(1).

27                  I note that orders of the kind sought by the applicant have previously been made by the Court.  In Members of the Yorta Yorta Aboriginal Community v State of Victoria, (1999) 4 AILR 91, Olney J made a determination that native title did not exist in relation to certain land and waters.  No issue was raised about the form of that order on the appeal to the Full Court, which was dismissed: Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244.  (An appeal to the High Court has been heard, but judgment is reserved.)  Similar orders have also been made pursuant to s 86G of the Native Title Act, although in each case the applicant was an Aboriginal Land Council: see Application by the Metropolitan Local Aboriginal Land Council [2001] FCA 605; Applications by the Deniliquin Land Council [2001] FCA 609; Darkinjung Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2001] FCA 1124.

Discretion

28                  Section 86G empowers the Court, once the jurisdictional preconditions are satisfied, to make the order sought by the applicant, if it appears appropriate to do so, without holding a “hearing”.  Mr Hiley QC, who appeared for the applicant, submitted that it was strictly unnecessary for the applicant to put on evidence tending to negate the possibility that native title interests might exist over Castle Hill, since s 86G(1) contemplates that the order will be made without a “hearing”.  As he pointed out, s 86G(1) applies only in a case where all other parties to the application have indicated in writing that they do not object to the proposed order.  Nonetheless, for more abundant caution, Mr Hiley read evidence in support of the applicant’s case, the effect of which I have summarised earlier. 

29                  In the light of that evidence I do not think it necessary to explore any ambiguity that may be present in the word “hearing” as used in s 86G(1) of the Native Title Act.  In my view, it is open to the Court, in determining whether it is appropriate to make the order sought, to take into account admissible evidence on which the applicant wishes to rely in support of the proposed order.

30                  In Gunggari People, Emmett J addressed the considerations that a Court should take into account in exercising its discretion to make orders giving effect to an agreement reached between the parties to an application.  His Honour said this (at [22]):

“The Court must, of course, exercise caution where any declaratory order involving property rights is sought.  Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes.  A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world.  It does not only resolve an issue inter partes”.  (Emphasis in original.)

Later, his Honour added these observations (at [28]-[29]).

“[T]he Court must act judicially.  That is to say, it cannot simply act capriciously.  The Court must have regard to the objects and purposes of the Act.”

Emmett J’s comments were quoted with approval by Branson J in Kelly on behalf of the Byron Bay Bundjalong People v NSW Aboriginal Land Council [2001] FCA 1479, at [20]-[21], although her Honour cautioned that Emmett J did not intend to make an exhaustive list.  See also the helpful article by S Beesley, “The Role of the Federal Court when Parties Reach Agreement: s 87 of the Native Title Act 1993” (2001) 5 Native Title News 5.

31                  These general principles can be applied with necessary adaptations, to applications under s 86G(1) of the Native Title Act.  In my opinion, there are several factors which indicate that it is appropriate to make the order sought by the applicant.

32                  First, the Koa People have discontinued their claimant application and withdrawn, by leave, as parties to the non-claimant application.  The Koa People did so with the benefit of legal advice and representation arranged by the Gurang Land Council, which has specific statutory responsibilities to assist native title claimants in the area in which Castle Hill is located: see Native Title Act, Part 11, Div 3.  The actions of the Koa People suggest clearly that they have made an informed decision not to press any native title claims to Castle Hill.  Thus, although they have not stated in writing that they do not oppose the orders sought by the applicant, their actions are tantamount to the same thing.

33                  Secondly, it is consistent with the objects of the Native Title Act to make the determination sought by the applicant.  One of the objects of the Native Title Act is to “establish a mechanism for determining claims to native title” (s 4(c)).  The applicant seeks to take advantage of a mechanism set up by the Native Title Act to resolve his non-claimant application without proceeding to a full hearing and thereby remove uncertainty that otherwise might cloud his interest in Castle Hill.  In the absence of anything to suggest that native title interests may subsist over the land, it is consistent with the statutory objects for these proceedings to be brought to finality using the mechanism provided by Parliament.

34                  Thirdly, the only evidence before the Court strongly suggests that there are indeed no native title interests over Castle Hill.  This is not merely a case where possible native title claimants have failed to provide evidence supporting any claim they might have.  The evidence adduced indicates that any connection that may have existed between the Aboriginal peoples of the area and Castle Hill, in accordance with traditional laws and customs, has not been maintained.  While the content of native title may vary depending on the circumstances (Wik Peoples v Queensland (1996) 187 CLR 1, at 169, per Gummow J), it is difficult to see, in the light of the applicant’s evidence, how any incidents of native title over Castle Hill could have survived into the very late twentieth century: cf Native Title Act, s 223; Mabo v Queensland (No 2) (1992) 175 CLR 1, at 59-60, per Brennan J.

35                  In these circumstances, I am satisfied that it is appropriate to make an order in the terms sought by the applicant.

CONCLUSION

36                  The applicant has satisfied me that an order should be made, pursuant to s 86G(1) of the Native Title Act that native title does not exist in relation to Castle Hill.  I propose to make that order.

Associate:

Dated:              13 June 2002