FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
18 January 2019
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The Native Title Act 1993 (Cth) (the NTA) allows a person who holds a “non-native title interest” in relation to the whole of an area of land to make a native title determination application (see s 61(1)). A native title determination application made under s 61(1), which is not one that a native title claim group has authorised to be made, is defined by default in the NTA to be a non-claimant application (see the definition in s 253). Ms Pate has made such an application in this proceeding.
THE FACTUAL CONTEXT
2 Ms Pate is the registered lessee of an area of land located at Carmila, approximately five kilometres west of Flaggy Rock in North Queensland (the lease). The formal description of the lease is Rolling Term Lease PH 30/5128 comprising Lot 51 on SP252761. After acquiring the lease in May 2017, Ms Pate applied to the State of Queensland to convert it to freehold. That course was open to her under Chapter 4 Part 3 Division 3 of the Land Act 1994 (Qld). The State responded with a conditional offer for conversion. Ms Pate described that offer and the conditions attached to it in the following terms in the affidavit she filed in this proceeding:
A condition of the offer is that I address native title. The offer states that freehold tenure will not be granted until any existing native title in the land has been surrendered (by way of a registered ILUA) or the Federal Court has determined that native title does not exist in relation to the area subject to the proposed tenure conversion.
3 It can be seen that this offer presented two options to Ms Pate. As is obvious from this application, she has elected to pursue the second option. The first option of a registered Indigenous Land Use Agreement (ILUA) would appear to refer to an alternative procedure ILUA under Subdivision D of Division 3 of Part 2 of the NTA. I will return to this aspect later in these reasons.
4 In or about October 2017, the National Native Title Tribunal (the Tribunal) notified Ms Pate’s application in accordance with s 66 of the NTA, fixing the notification day required by s 66(8) as 1 November 2017. At the end of the period of three months after that notification day, no “relevant native title claim (as defined in section 24FE)” had been filed with respect to the land (see s 66(10)(a)).
5 However, in the past, the land comprising Ms Pate’s lease has been the subject of three separate native title determination applications, one of which was accepted for registration under Part 7 of the NTA. According to the records of the Tribunal annexed to the affidavit of Mr Boge, Ms Pate’s lawyer, those applications were, in chronological order:
(a) QUD6012/2000 – Barada Barna Kabalbara & Yetimarla People (“BBKY”) filed on 17 November 2000;
(b) QUD6023/2001 – Barada Barna Kabalbara & Yetimarla People #4 (“BBKY#4”) filed on 31 July 2001;
(c) QUD121/2015 – Koinjmal People (“Koinjmal”) filed on 30 March 2015.
6 The Tribunal’s records also reveal that the first of these claims was not accepted for registration (see s 190A(6B)) and was subsequently discontinued on 3 August 2001. However, as is mentioned above, the second claim was entered in the Register of Native Title Claims on 5 April 2002. To achieve that registration, the application must have met the conditions relating to the merits of the claim prescribed by s 190B of the Act (see s 190A(6)(b)(i)). One of those conditions is that the Registrar must be satisfied that “the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion” (see s 190B(5)(a) to (c)).
7 However, about six and a half years later, on 23 October 2008, Dowsett J made orders in that proceeding to the following effect:
1. The time for compliance with paragraph 1 of the Orders made on 1 May 2008, be extended until 23 December 2008.
2. On or before 23 December 2008, the Applicant file and serve a certificate by a legal practitioner to the effect that in his or her opinion the amended application can properly be prosecuted to a determination as to the existence of native title.
3. In default of compliance with this Order, the application stand dismissed.
4. Liberty to apply.
It can be inferred that the applicant failed to comply with these orders because the current status of the claim is recorded on the Tribunal’s records as “dismissed – 23/12/2008”.
8 As for the third and final claim mentioned above, it suffered a similar fate to the first. According to the Tribunal’s records, it was not accepted for registration and is recorded as “discontinued – 10/08/2015”.
9 At the outset, it should be noted that the State is the only other party in this proceeding and it has informed the Court that it does not oppose Ms Pate’s application. It was therefore common ground between Ms Pate and the State that she had met all the necessary procedural, or formal, requirements in the NTA affecting her application and that her application should be treated as unopposed under s 86G. It was also not in dispute that Ms Pate bore the onus to prove, on the balance of probabilities, that native title did not exist in the land comprising her lease. To discharge that onus, Ms Pate relied upon two facts and contended that an inference should be drawn from them that no native title existed in the land. First, she contended that “there are no registered native title claims affecting the subject land, and the one that previously existed has been dismissed” (emphasis in original). Secondly, she contended that “no one has expressed an interest in claiming native title in relation to the subject land”.
10 For its part, the State submitted that the inference Ms Pate has sought to have drawn should be drawn because:
… while there have been previous claimant applications made in respect of the land the subject of the non-claimant application, they were either not accepted for registration and discontinued or dismissed subsequent to failure to comply with an order requiring the filing and service of a certificate by a legal practitioner to the effect that in his or her opinion the claimant application could properly be prosecuted to a determination as to the existence of native title;
11 In support of these contentions, both Ms Pate and the State relied on the judgments in Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (No 2) (2008) 181 FCR 300;  FCA 1929 (Worimi (No 2)), affirmed on appeal in Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320;  FCAFC 3 (Worimi FC); and Deerubbin Aboriginal Land Council v Attorney-General of New South Wales  FCA 1067 (Deerubbin).
Federal Court may make order
(1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:
(a) the application is unopposed; and
(b) the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court;
the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing.
Note: If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).
Meaning of unopposed
(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.
13 In Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109;  FCA 1229 (Munn), Emmett J held (at ), with respect to the substantively similar provisions of s 87 of the NTA dealing with consent determinations, that the Court’s power to make such orders was subject to certain “jurisdictional pre-conditions”. In Kennedy v State of Queensland (2002) 190 ALR 707;  FCA 747 (Kennedy), Sackville J adopted and applied that ruling to s 86G of the NTA and held that an application under that section was subject to two such jurisdictional pre-conditions: that the order sought was within the power of the Court; and that the application was unopposed (see Kennedy at –). I respectfully agree with this approach.
14 For the following reasons, I consider Ms Pate has met these pre-conditions. First, as is mentioned above, this application is an application under s 61, the notice period specified in s 66 of the NTA has expired and there is no relevant native title claim (as defined in s 24FE) covering the area of her lease. Furthermore, as has also been mentioned above, the State, as the only other party to this proceeding, has notified the Court that it does not oppose the order sought so that pre-condition has also been met. However, the order that Ms Pate seeks does present a problem with respect to the Court’s power. That order is in the following terms:
[THAT] NATIVE TITLE OVER LOT 51 - WALTONS ROAD, CARMILA. Q. 4739 (NUMBER ON PLAN - SP252761 … BE EXTINGUISHED IN ORDER FOR CONVERSION OF [THE] LEASE TO FREEHOLD.
15 This is problematic because this Court does not have the power to “extinguish” native title in the land comprising Ms Pate’s lease. However, what it does undoubtedly have is the power to make a determination that native title does not exist in an area of land or waters (see CG v Western Australia (2016) 240 FCR 466;  FCAFC 67 (CG)). This kind of determination is commonly referred to as a negative determination of native title. Accordingly, having regard to the condition Ms Pate is seeking to meet by making this application as described above (see at –), I will assume that she is actually seeking a determination of this kind. As Griffiths J pointed out in Deerubbin, by reference to various authorities, there are two bases upon which the Court may be satisfied that native title does not exist in an area of land or waters. They are (at ):
(a) native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant; [or]
(b) native title has been extinguished by prior acts of the Crown.
17 There are two further sections of the NTA that bear upon the Court’s power to make a determination under s 86G and that require mention, if only to exclude them. They are ss 94A and 225. The former requires the Court, when making a determination of native title, to “set out details of the matters mentioned in section 225”. Section 225 defines what constitutes a determination of native title as follows:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
18 Because a determination that no native title exists in an area is a determination “whether or not native title exists”, on its face, s 94A requires such a determination to set out the matters mentioned in ss 225(a) to (e) above. However, because those matters only relate to a determination if native title exists in the area concerned, self-evidently, those matters are otiose where a negative determination is involved. Accordingly, I am satisfied that Ms Pate has met the jurisdictional pre-conditions mentioned above.
THE DISCRETION AND THE CONSIDERATIONS AFFECTING IT
19 There then remains the question posed by the phrase in s 86G(1) above, “the Court may, if it appears appropriate to do so” make the order sought. Plainly, that phrase gives the Court a discretion whether to make the order sought. The nature of that discretion and some of the considerations affecting its exercise were also addressed by Emmett J in Munn. Because the apposite phrase in s 86G is identical to that in s 87 of the NTA, I consider the following observations of Emmett J in Munn provide some guidance on the exercise of the discretion under the former section. First, Emmett J underscored the unfettered nature of the discretion while emphasising the usual constraint that it “must be exercised judicially in accordance with ordinary principles” (Munn at ). Next, his Honour set out a non-exhaustive list of considerations to be taken into account when exercising the discretion. Prominent in that list was, unsurprisingly, the objects and purposes of the NTA (Munn at ).
(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.
21 Broadly speaking, ss 13, 61, 66, 81 and 86G itself, all serve, in differing ways, to advance the objects or purposes stated in (a) and (c) above. As well, the future act provisions of Part 2 of Division 3 of the NTA, including the sections comprising Subdivision F of Division 3, play a similar role with respect to the objects or purposes in (a) and (b) above. The impact these provisions and the objects or purposes above have on the exercise of the discretion under s 86G is a matter to which I will return later in these reasons.
22 In deciding whether to exercise the discretion under s 86G in this matter, a convenient starting point is the three authorities upon which both Ms Pate and the State relied in their contentions set out above. The first authority in time was Worimi (No 2). It involved a non-claimant application which resulted in a contested hearing between a Local Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (NSW) (the ALRA) and an Aboriginal person called Worimi. Prior to the trial, Worimi’s two claimant applications over the land in question had been dismissed by the primary judge. He was then joined as a respondent party to the Land Council’s non-claimant application (see Worimi (No 2)) at ). In that peculiar litigious context, one of the issues in contention at the trial was Worimi’s evidentiary onus as an Aboriginal respondent party contesting the negative determination that the Land Council was seeking (see the discussion in Worimi (No 2) at –). From this brief description of its procedural background, it can be seen that Worimi (No 2) was not an unopposed non-claimant application under s 86G. Furthermore, in seeking a negative determination in that matter, the Land Council did not rely only on its compliance with the formal requirements of the NTA. Instead, a significant amount of other evidence was adduced at the trial, the nature and extent of which was summarised in the subsequent Full Court judgment (Worimi FC) as follows at ():
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 164 FCR 355 at . 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 …
23 Because they allude to certain of the formal requirements under the NTA, the observations in the first two sentences of this paragraph of Worimi FC are of some significance in this matter. The “extensive” notification requirements in the NTA to which the Court referred are those set out in s 66. As can be seen from the quotation above, the Full Court’s view was that the absence of a claimant application following compliance with those requirements “may indicate that no native title claim group or groups assert native title rights and interests over the [l]and”. In her judgment, the primary judge also made reference to the same notification requirements (see Worimi (No 2) at ). However, her Honour appears to have been willing to draw a different kind of inference from the absence of a claimant application following compliance with those requirements. She said: “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” (Worimi (No 2) at ). Nonetheless, her Honour immediately qualified that view in the first sentence of the next paragraph by stating (at ): “It does not follow that the absence of a native title claim means that, without more, there is a declaration of no native title.”
24 The Full Court judgment in Commonwealth v Clifton (2007) 164 FCR 355;  FCAFC 190 (Clifton) at  was cited in support by both the Full Court and the primary judge. Clifton concerned an Aboriginal respondent party, Mr McKenzie, who was in a similar position to Worimi, albeit as respondent to a claimant application rather than a non-claimant application. Like Worimi, Mr McKenzie had previously attempted unsuccessfully to pursue a claimant application (indeed two) over the same area of land (see Clifton at –). The central question in Clifton was whether Mr McKenzie, as a respondent party, could obtain a determination of native title in his favour with respect to that area without having an extant claimant application (see Clifton at ). The Court answered that question in the negative (see at –). It was in that context that the Court went on to make the cited observation at  as follows:
Alternatively, if following the giving of notice by the Native Title Registrar of the making of an application or applications in respect of the area, only one application is filed in respect of that area, the Court would be entitled to be satisfied that no other claim group or groups asserts a claim to hold native title to the area.
25 For present purposes, two observations are appropriate. First, it is unclear whether the Court was referring to the Registrar’s notice with respect to a non-claimant application, or to a claimant application. On the one hand, as is noted above, Clifton itself concerned a claimant application, not a non-claimant application. On the other hand, as is explained below, it is only a notice with respect to a non-claimant application that calls for the filing of a claimant application with respect to the area concerned. Secondly, and in any event, the Court in Clifton did not say that the consequence of failing to make a claimant application in response to the Registrar’s notice was that no native title existed in the area. Rather it said that the Court could be satisfied that no other claim group or groups claimed to hold native title to that area. These distinctions are important in this matter because, as is discussed below, the content and effect of the notice the Registrar is required to give under s 66(10) is materially different for the two different kinds of application concerned.
26 As mentioned above, s 66(10) prescribes the content of the notice the Registrar is required to give under s 66(3) concerning a native title determination application, whether it is a claimant application or a non-claimant application. It does so in the following terms:
(a) in the case of a non‑claimant application (see section 253)—the area covered by the application may be subject to section 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in subsection (8) of this section), the area is covered by a relevant native title claim (as defined in section 24FE); and
(b) in the case of any native title determination application—as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account the person’s native title rights and interests in relation to the area concerned; and
(c) in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.
27 In essence, the relevant effect of (b) and (c) above for present purposes is that a notice with respect to a claimant application must warn that, if a person claiming to have native title rights and interests in an area does not become a party to that application within three months after the notification day, the Court may proceed to make a determination in relation to the area concerned – which, if it does, will then become the only native title determination for that area – without taking into account that person’s native title rights and interests in relation to that area. As is already mentioned above, a notice concerning a claimant application does not call on that person to file what would be a competing claimant application. In contrast, the effect of (a) to (c) above, for present purposes, is that a notice with respect to a non-claimant application must, in addition, warn that the area covered by the non-claimant application “may be subject to section 24FA protection” if a relevant native title claim (as defined in s 24FE), that is, a claimant application, is not lodged in response to the notice within the same three month period. Hence, a notice concerning a non-claimant application calls on a person claiming to have native title rights and interests in the area concerned to do one, or both, of two things: to file a claimant application and/or to become a party to the non-claimant application. However, while it may be implicit in (b) that a consequence of not becoming a party to the non-claimant application is that application may be determined as an unopposed application under s 86G, no warning is provided under either (a) or (b) of the possibility that that procedure may result in a negative determination of native title. More importantly for present purposes, no warning is provided of the consequences of such a negative determination for any native title rights and interests that may exist in the area beyond that associated with s 24FA protection. Namely, that such a negative determination of native title will concurrently extinguish those rights and interests and effectively remove any right to compensation that is granted in their place. It is the latter consequence that extends beyond those associated with the area becoming subject to s 24FA protection.
28 To explain why that consequence arises, it is necessary, first, to outline how s 24FA protection is obtained and the nature of the protection that it provides. The most convenient way to do that is to adopt the following observations from my judgment in CG at –:
93 It is worth beginning a consideration of the text of Subdiv F at its title. It is headed: “Future acts: if procedures indicate absence of native title”. This heading (which can be used as a guide to construction: s 13 of the Acts Interpretation Act 1901 (Cth)) provides an indication that the absence of native title is based upon procedural, not substantive, considerations and that the Subdivision is directed to a particular kind of conduct: future acts.
94 This is confirmed by the major purpose of Subdiv F as described in the Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) for the 1998 amendments to the Native Title Act (1998 Explanatory Memorandum). In the Overview section of that document, Subdiv F is said to: “[ensure] the validity of future acts which are done over areas where steps taken under the NTA indicate that native title does not exist in those areas” (paragraph 8.1). The major purpose of the Subdivision is then described as: “to ensure the validity of future acts done before a determination as to whether or not native title exists has been made, but only where certain conditions apply” (paragraph 8.2).
95 Next, it is convenient to consider the particular procedures that must be followed in order to gain s 24FA protection for an area. The salient features of those procedures, for present purposes, are as follows. For both a government non-claimant application (s 24FB(1)(a) to (f)) and a non-government non-claimant application (24FC(a) to (g)), the non-claimant application must have been made (a non-government non-claimant application may, however, not be made if a government non-claimant application has already been made), the application must cover the whole of the area (a non-government non-claimant application may, however, cover only a part of the area), the period specified in the notice under s 66 must have ended and, at the end of that period, no “relevant native title claim” (for present purposes a registered claimant application: see s 24FE) has been filed with the Court. For completeness, it should be noted that an area cannot be subject to s 24FA protection if there is an entry in the National Native Title Register under s 193(1)(a) or s 193(1)(b) that native title exists in relation to that area, or a part of it.
96 If these procedures have been followed, the non-claimant application will then result in s 24FA protection for the area “at a particular time” (s 24FA(1)) provided that, at that time, the non-claimant application has not been withdrawn, dismissed or finalised (ss 24FB(e) and 24FC(f)).
97 While I am identifying these procedural requirements of Subdiv F, it is worth mentioning its remaining section: s 24FD. It provides that s 24FA protection will also apply to an area where there is an entry in the National Native Title Register under s 193(1)(a) or s 193(1)(b) that no native title exists on that area. I will return to this provision later in these reasons.
98 I turn then from these procedural features of the text of Subdiv F to the effect of s 24FA protection. Where an area becomes subject to that kind of protection, any future act that is done on that area is valid (s 24FA(1)(a)). The permanency of this protection was emphasised in the 1998 Explanatory Memorandum as follows (paragraph 8.6):
When section 24FA protection applies to an area at a particular time, any future act done by a person at that time in relation to the area is valid and remains valid for all time, even if a determination that native title exists in relation to the area is made at a later time. …
99 This form of validation stands out as an exception to the usual position with respect to future acts affecting native title as stated in s 24OA of the Native Title Act. That section provides that: “Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.” As is explained in the 1998 Explanatory Memorandum (paragraph 8.4), certainty is the central purpose of these provisions:
Subdivision F is included to allow people with interests in land to ascertain whether native title exists in order to give them certainty when doing acts in relation to that land. This will encourage potential native title holders to make native title claims. However, the mere fact that a future act gains section 24FA protection does not prevent a native title claim being made or determined in the future.
(Emphasis in original.)
100 In this respect, two paragraphs of the Preamble to the Native Title Act are worth quoting. They are:
The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.
Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.
101 Given the sentiments expressed in the latter paragraph above, it is unexceptional to find that, if the future act that is validated by s 24FA(1)(a) extinguishes native title to any extent, the native title holders are entitled to compensation for that extinguishment (s 24FA(1)(b)). The particular purpose of this provision is explained in the 1998 Explanatory Memorandum in the following terms (paragraph 8.9):
… In general terms, the compensation is an entitlement on “just terms” to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title …
102 However, the extinguishment effected by s 24FA(1)(b) is exceptional in at least one respect. Contrary to the expectation expressed in the Preamble above, and unlike most of the other similar extinguishment provisions in Div 3, the non-extinguishment principle is not expressed to apply to that extinguishment. This exception essentially means that the native title so extinguished will not ever be able to resume its full effect in the future if the future act, or its effects, are later wholly or partly removed, or otherwise cease to operate (see s 238).
103 By comparison, some examples of the non-extinguishment principle applying to other future acts that effect similar extinguishments in Div 3 include: ss 24EB(3) and 24EBA(4) re Indigenous Land Use Agreements (with the qualifications expressed therein); s 24GB(6) re primary production; s 24GD(3) re primary production activities; s 24HA(4) re the management or regulation of water and airspace; s 24ID(1)(c) re renewals and extensions (unless the act consists of the grant of freehold, or the conferral of a right of exclusive possession) and s 24NA(4) re acts affecting offshore places.
104 It follows from the combined effect of these provisions of Div 3, and particularly Subdiv F, that once an area has gained s 24FA protection it will have achieved the fullest protection available under that Division of the Native Title Act.
29 Relevantly in this matter, the Subdivision F provisions described above will have the following consequences. First, because Ms Pate has complied with the procedural requirements of s 24FC and no relevant native title claim was filed by the end of the notification period under s 66, the land comprising her lease is currently subject to s 24FA protection (see at [28(95)] and [28(96)] above). Accordingly, if her lease is converted to freehold while it remains in that state, any native title rights and interests that exist in that land will be extinguished for all time (see [28(98)] above) and replaced by a right to compensation which is vested in any native title holders that may exist with respect to that land: s 24FA(1)(b) (see at [28(101)] above). Furthermore, the permanency of that extinguishment is reinforced by the peculiar feature that the non-extinguishment principle will not apply to it (see at [28(102)] above). Thus, s 24FA protection will provide Ms Pate, as a landowner, with a high degree of certainty in keeping with the central purpose of the provisions of Subdivision F (see at [28(99)] above).
30 Secondly, under s 24FA(2), the body responsible for paying the compensation for the extinguished native title rights and interests, if native title is subsequently established to have existed in that land, is the body politic to which the act in question is attributable. In this case, if it proceeds to convert Ms Pate’s lease to freehold title, that body will be the State of Queensland.
31 Thirdly, and in comparison to the consequences described above, if the negative determination of native title that Ms Pate seeks in this application were to be made, it will have the following consequences. In the first place, that determination will constitute an approved determination of native title as defined in s 253: “the meaning given by subsections 13(3), (4) and (7)”. It will fall within the terms of that definition, specifically the meaning given by s 13(3), because of the combined effect of the following matters. First, s 13(3)(a) of the NTA provides:
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);
If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:
(a) the Federal Court, in determining an application under Part 3; or
(b) a recognised State/Territory body in an order, judgment or other decision;
(c) in the case of a variation—the determination as varied becomes an approved determination of native title in place of the original; and
(d) in the case of a revocation—the determination is no longer an approved determination of native title.
33 Secondly, the expression “determination of native title” (mentioned in s 13(3)(a) above) is defined in s 225 (set out in  above). As has already been mentioned above, a negative determination of native title is included in the terms of that definition.
An application may be made to the Federal Court under Part 3:
(a) for a determination of native title in relation to an area for which there is no approved determination of native title; or
Ms Pate’s non-claimant application falls within the terms of this provision because, as has already been mentioned above, it was an application made to the Court under Part 3, specifically s 61(1) of that Part.
35 It is also worth digressing to note that, once it achieves the status of an approved determination of native title, the negative determination Ms Pate seeks will only be capable of being varied or revoked if one of the grounds described in s 13(5) were to be established and if one of the confined groups of persons described in s 61 were willing to make the application. The grounds described in s 13(5) are:
(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b) that the interests of justice require the variation or revocation of the determination.
36 And, according to the table in s 61(1), only the following persons may make a revised native title determination application:
Kind of application
Persons who may make application
Revised native title determination application
Application, as mentioned in subsection 13(1), for revocation or variation of an approved determination of native title, on the grounds set out in subsection 13(5).
(1) The registered native title body corporate; or
(2) The Commonwealth Minister; or
(3) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned; or
(4) The Native Title Registrar.
37 Returning to the consequences of a negative determination of native title, once that determination is made, the details of it will be registered as an approved determination under the provisions of Part 8 of the NTA, particularly ss 193(1) and 197. Those sections provide:
193 Contents of the Register
Determinations to be included
(1) The Register must contain the information set out in subsection (2) in relation to the following:
(a) approved determinations of native title by the Federal Court or the High Court;
(b) approved determinations of native title by recognised State/Territory bodies.
197 Keeping the Register
(1) The Registrar must, as soon as is practicable:
(a) include in the Register details of determinations or decisions covered by subsection 193(1); and
(b) update the Register in accordance with subsection 193(4).
38 More importantly for present purposes, once the area of Ms Pate’s lease is covered by such an approved determination of native title, ss 13(1)(a) and 68 of the NTA will apply to prevent any further determinations of native title being made in respect to that area. That is so, first, because, as can be seen from the former section (set out at  above), an application for the determination of native title may only be made to this Court under Part 3 “in relation to an area for which there is no approved determination of native title”. Secondly, and of more direct concern to this matter, s 68 provides:
If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not:
(a) conduct any proceeding relating to an application for another determination of native title; or
(b) make any other determination of native title;
in relation to that area or to an area wholly within that area, except in the case of:
(c) an application as mentioned in subsection 13(1) to revoke or vary the first determination; or
(d) a review or appeal of the first determination.
39 The reason why this section is of more direct concern in this matter arises from the fact that it will apply to a compensation application under ss 50 and 61 of the NTA if a negative determination of native title is made with respect to the area of Ms Pate’s lease. That is so because, absent such a prior determination of native title, one of the issues that will have to be determined in any application claiming the compensation provided for under s 24FA is what native title rights and interests existed in that area prior to their extinguishment under that section. Indeed, that kind of determination is provided for in s 13(2)(b) of the NTA in the absence of such a prior determination of native title because it relevantly provides that:
(a) the Federal Court is making a determination of compensation in accordance with Division 5; and
(b) an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;
the Federal Court must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.
However, if a negative determination of native title is made with respect to the area of Ms Pate’s lease, a previous approved determination of native title will then have been made in relation to that area and in that event s 68 will prevent this Court from conducting any proceeding relating to an application for another determination of native title with respect to that area, or making such a determination. This will include a current determination of native title of the kind referred to in s 13(2)(b) above. In other words, the making of an approved negative determination of native title will, in practical terms, foreclose on that issue in an application claiming the compensation provided for in s 24FA. As a consequence, the State will effectively be relieved of the liability to pay compensation under s 24FA, as mentioned at  above. That, it follows, will be the ultimate, and most significant, consequence of the negative determination Ms Pate seeks.
40 This outcome, it is important to add, will not result in Ms Pate gaining any additional protection beyond that provided by s 24FA. That is so because, under s 24FD, once the negative determination is registered as an approved determination of native title, the area of Ms Pate’s lease will again become subject to s 24FA protection (see at [28(97)] above and s 193(1) set out at  above). Thus, the subsequent conversion of her lease to freehold will have the same consequences as those mentioned above (at ), namely the extinguishment of any native title rights and interests that exist in the area and their replacement with a right to compensation. Accordingly, the s 24FA protection provided by the NTA with respect to the area of Ms Pate’s lease, with all the certainty and permanence that it entails, will remain essentially the same whether or not the negative determination she seeks were to be made.
41 If my conclusions about this outcome are correct, it is, on its face, inconsistent with one of the main objects of the NTA. Namely to protect native title (see at  above) or, in this case, the right to compensation that would replace it. That being so, I would have expected to find it clearly expressed as an exception to that protective object somewhere within the provisions of the NTA. That clear expression does not, in my view, emerge from any of the most obvious places. That is to say, in Subdivision F, or in the notice provisions of s 66(10) discussed above, or in ss 13, 50 or 61. In this respect it is worth adding two further observations. First, a future native title determination application with respect to an area covered by s 24FA protection was expressly anticipated in that part of the explanatory memorandum relating to the provisions of Subdivision F (see at [28(98)] and [28(99)] above). That being so, it would seem unlikely that Subdivision F contains such an exception. Secondly, it is also unlikely that the revocation or variation exception in s 13, mentioned in  above, constituted that exception because, as appears at  above, an applicant authorised by a native title claim group is not one of the persons who can make such an application. In the absence of such clear expression and on the same assumption as to the correctness of my conclusions, I do not consider it is open to make a negative determination of native title under s 86G in this matter consistently with the objects and purposes of the Act (see at  above). This conclusion would be sufficient, in itself, to dispose of Ms Pate’s application. However, because I have not had the advantage of detailed submissions on this complex issue of statutory construction, it is appropriate that I should explain why I consider Ms Pate’s application fails for a number of other quite separate reasons.
42 In providing that explanation, I return, first, to the Full Court decision in Worimi. While the Court in Worimi FC acknowledged the difficulties that confronted a non-claimant applicant when attempting to discharge the onus to establish the negative proposition that no native title exists in an area of land, it nonetheless emphasised that such evidence was necessary. It said (at ):
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 Company Ltd v Jacobsen (1945) 70 CLR 635 at 641-642. 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 1 NSWLR 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.
43 The statement “it must nevertheless be more than a scintilla” does not, in my view, mean that a scintilla of evidence will suffice. Far from it. I consider the Court made it relatively clear that a non-claimant applicant such as Ms Pate wishing to obtain a negative determination of native title must adduce sufficient evidence that, in all the circumstances, will discharge her onus to prove, on the balance of probabilities, that native title does not exist on the area of land in question. The Court in Worimi FC made it clear that the nature and extent of that sufficient evidence will vary depending upon the facts and circumstances of each individual case. For the reasons given in the conclusion section below, I do not consider Ms Pate has adduced sufficient evidence to discharge that onus.
44 However, before setting out those reasons, it is necessary that I address the third authority above, and the one upon which Ms Pate placed most reliance, namely Deerubbin. The particular part of that judgment from which Ms Pate sought to draw support were the observations at  as follows:
Where an unopposed non-claimant application in which orders are sought by consent of the parties and:
(a) notice has been given to the relevant representative body under s 66 of the NT Act;
(b) public notice has been given under s 66 of the NT Act and no response received following that notice; and
(c) National Native Title Tribunal … searches establish that there is:
(i) no previous approved determination of native title in the land the subject of the application; and
(ii) no current application in relation to the land the subject of the application,
the Court is normally “entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the land” and that finding “supports an inference of an absence of native title” (Worimi No 2 at  citing Commonwealth v Clifton  FCAFC 190; 164 FCR 355 at ).
45 In the succeeding paragraph, his Honour went on to state that: “many non-claimant applications have been granted on the basis of proof of the formal requirements of the [NTA] only, in the absence of any detailed evidence about the existence or otherwise of native title” (Deerubbin at ), and he then cited three examples: Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council (unreported, Beaumont J, 31 March 1998) (Metropolitan); Deniliquin Local Aboriginal Land Council  FCA 609 (Deniliquin) and Kennedy.
46 For the reasons that follow, I do not consider this approach is open to be adopted in this matter. First, as I have already explained above, I consider the leading authority in this context is the Full Court decision in Worimi FC. I consider that judgment requires a non-claimant applicant to adduce such evidence as the facts and circumstances of the individual case dictate is sufficient to discharge his or her onus to prove that no native title exists in the area concerned. Unsurprisingly, therefore, that approach has been adopted with respect to most non-claimant applications since Worimi FC: see Eden Local Aboriginal Land Council v NTSCORP Limited  FCA 745; Eden Local Aboriginal Land Council v NTSCORP Limited  FCA 746; Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW  FCA 383 particularly at – per Perram J; Worimi Local Aboriginal Land Council v Attorney-General of New South Wales  FCA 146 particularly at  per Cowdroy J; Worimi Local Aboriginal Land Council v Attorney-General of New South Wales  FCA 147; Ngambri Local Aboriginal Land Council v Attorney-General of New South Wales  FCA 1484 particularly at  per Jagot J; Jerrinja Local Aboriginal Land Council v Attorney-General of the State of NSW  FCA 562 (Jerrinja); Gandangara Local Aboriginal Land Council v Attorney General of New South Wales  FCA 646 (Gandangara 2013) particularly at – per Griffiths J; Mudgee Local Aboriginal Land Council v Attorney General of NSW  FCA 668; Forster Local Aboriginal Land Council v Attorney-General of New South Wales  FCA 997; West Wyalong Local Aboriginal Land Council v Attorney-General of New South Wales  FCA 1194; Awabakal Local Aboriginal Land Council v Attorney General of New South Wales  FCA 1249 and Worimi Local Aboriginal Land Council v Attorney General of New South Wales  FCA 1329 (Worimi 2018).
47 By comparison, it would appear that the prevailing view before Worimi FC was that compliance with the formal requirements of the NTA alone was generally considered to be sufficient. In my view, the judgments in Metropolitan and Deniliquin cited as examples in support of the observation at  of Deerubbin fall into that category. Others include: Darkinjung Local Aboriginal Land Council v New South Wales Aboriginal Land Council  FCA 1124; Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales  FCA 1712; Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales  FCA 1713; Darkinjung Aboriginal Land Council v Minister for Lands & Ors  FCA 1861; Cruse v New South Wales Native Title Services Ltd  FCA 1124; Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Ltd  FCA 1184; Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited  FCA 1455; New South Wales Aboriginal Land Council v New South Wales Native Title Services Limited  FCA 112; Bahtabah Local Aboriginal Land Council v New South Wales Native Title Services Limited  FCA 382; Bahtabah Local Aboriginal Land Council v New South Wales Native Title Services Limited  FCA 383; Eden Local Aboriginal Land Council v Minister for Lands  FCA 1934; Nambucca Heads Local Aboriginal Land Council v Minister for Lands  FCA 624 and Gandangara Local Aboriginal Land Council v Minister for Lands  FCA 1136.
48 The third example cited in Deerubbin at , namely Kennedy, was, in my view, an exception to this prevailing view. Like Worimi (No 2), Kennedy began as a contested hearing but, at a late stage of the hearing, the Aboriginal respondents (representatives of the Koa People) sought and obtained leave to withdraw (see Kennedy at ). Thereafter, the non-claimant applicant adduced a raft of evidence directed to establishing that native title did not exist in the pastoral lease in question. The nature and extent of that evidence was summarised by Sackville J at – and it led his Honour to conclude as follows (at ):
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.
It can therefore be seen that Sackville J expressly did not proceed only on the basis of compliance with the formal requirements of the NTA. Instead, his Honour’s approach was entirely consistent with the judgment in Worimi FC, albeit that his judgment was delivered some eight years beforehand.
49 Apart from the effect of the judgment in Worimi FC, there is another matter that stands against the approach in Deerubbin being adopted in this application. It concerns the peculiar circumstance in which that non-claimant application was decided. As has been mentioned a number of times above, the Court in Worimi FC held that the facts and circumstances of each individual case dictate the sufficiency of the evidence required to discharge an applicant’s onus to prove that no native title exists in an area. Griffiths J made the same point twice in Deerubbin. First, at , after referring to the judgment in Worimi FC, his Honour said: “Importantly, the Full Court emphasised that each case has to be addressed according to its own particular facts”. Then, immediately after his observations at , his Honour said:
That is not to say, however, that every case must be approached by reference to such cases. Primacy has to be given to the statutory language. The cases simply provide general guidance on how those powers should be exercised and applied by reference to the particular facts and circumstances of each individual case. There is a danger in viewing statements in individual cases too literally and as though they provide the answer in all cases. A more sophisticated approach is required, one which ultimately focuses upon the relevant statutory provision as applied in the particular facts and circumstances of an individual case …
To similar effect, see his Honour’s observations in Gandangara 2013 at –.
50 The peculiar circumstance that, in my view, affected Deerubbin and, indeed, most of the non-claimant applications decided in New South Wales over the past 18 years listed at  and  above, is the difficulties associated with the interaction between a particular provision of the apposite State legislation in New South Wales, namely the ALRA, and the related provisions of the NTA. That provision has been the subject of comment by a number of judges over that period. A good example is Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth)  FCA 792 (Lightning Ridge). In that judgment, Perram J identified the source of those difficulties as s 42 of the ALRA. That section prevents a Local Aboriginal Land Council from dealing with the land granted to it under the ALRA unless there has been an “approved determination of native title” under the NTA (see Lightning Ridge at ). As Perram J explained in the following passages of Lightning Ridge, that requirement does not take account of the provisions of the NTA providing for s 24FA protection, but instead appears to require a Local Aboriginal Land Council to proceed to obtain a negative determination of native title:
20 It is perhaps ironic that a local aboriginal land council who has obtained the benefit of a grant of a freehold estate under the ALR Act may then be required to make application to this Court under the NT Act.
21 The apprehension that irony may be present turns out to be well-founded on closer inspection of the NT Act. The NT Act erects a series of protections known as future act protections following upon the making of an unopposed non-claimant application even without its determination after the expiry of the notification period: s 24FC. Without dwelling on the detail, the effect of s 24FA(1) of the NT Act will be that without the need for the Court to determine the non-claimant application all future acts in relation to the land will be valid even if those acts extinguish native title. The NT Act, therefore, contemplates a procedure where non-claimants may get security as to the validity of their title merely by making a non-claimant application which is properly notified. They do not, therefore, need to undertake the potentially laborious task of proving that there is no native title. Extinguishment of native title by such acts will, however, give the native title holders a right to compensation: s 24FA(1)(b).
22 The provisions of s 42(1) of the ALR Act may bring about a different result. Depending on its precise meaning it may require a local aboriginal council to ensure that an application under the NT Act is pursued to finality; that is, it is not sufficient merely that an unopposed application is made and notified (as it is with all other non-claimants in that situation) – instead, it may be that the application must be determined which in practice will mean that the council involved will need to prove that there is no native title. This is a burden which does not rest upon any other non-claimant by reason of s 24FC.
51 Prompted by his concerns about s 42 of the ALRA, Perram J recommended that the New South Wales Parliament should take steps to address them by amending that section as follows (at ):
Considerations of that kind do, however, underscore the unsatisfactory nature of s 42(1) which may appear to burden those whom it was designed to assist. If s 42(1) were amended to include a reference to future act protection under the NT Act the problem would, in all likelihood, be solved. In turn that would relieve this Court from having to determine a constant stream of non-claimant applications from local aboriginal land councils. It is a matter which warrants attention from the New South Wales Parliament.
52 Jagot J adverted to some similar, and some additional, difficulties with that section in Jerrinja as follows (at ):
These proceedings may fairly be described as unhappy for a number of reasons. First, there is the interaction between the Native Title Act and the Aboriginal Land Rights Act 1983 (NSW). In particular, the provisions of the latter Act prevent a body in the position of the [Jerrinja Local Aboriginal Land Council] from dealing with land unless it has obtained a determination that there is no native title. This means land councils have no option other than to come to court for such a determination. This requirement undoubtedly has the potential to create, at the least, discomfort for members of a land council, as these proceedings have shown. Second, the same legislative interaction also creates the potential, as the current case has also disclosed, for dispute within the Aboriginal community itself, forcing communities not capable of resolution between themselves before the court.
53 It would appear from the most recently published decision concerning a non-claimant application made by a Local Aboriginal Land Council established under the ALRA that s 42 remains in force and unamended (see Worimi 2018 at ).
54 The difficulties created by this section of the ALRA constitute the peculiar circumstance I have mentioned above. It is a circumstance which may explain why, when confronted with the “irony” to which Perram J referred in Lightning Ridge, some judges may have been willing to apply a less stringent approach to the evidence necessary to discharge the onus a non-claimant applicant bears when that applicant is a Local Aboriginal Land Council in New South Wales and it is being forced by s 42 of the ALRA to apply for a negative determination of native title.
55 Whether or not that is so, that peculiar circumstance is certainly not present in this matter. Ms Pate is not an Aboriginal Land Council. Nor, so far as I am aware, is she an Aboriginal person. More importantly, there is no Queensland State legislation forcing her to make this application for a negative determination. To the contrary, the offer the State made to her advanced an alternative course, namely a registered ILUA under Subdivision D of Division 3 of Part 2 of the NTA (see at  above). To achieve such an ILUA, Ms Pate would need to secure the agreement of the Native Title Representative Body for the area covering her land to the freehold grant that she has requested the State to make (see ss 24DE(2)(b) and 24DF(2) respectively). It is also worth adding that this option would most likely avoid the outcome I have identified above (at ).
THE CONCLUSION – THE APPLICATION MUST BE REFUSED
56 Having regard to the matters set out above, I do not consider it is appropriate to exercise the discretion under s 86G to make the negative determination that Ms Pate has sought. In reaching this conclusion, I have had particular regard to the following matters.
57 First, there is the caution that always needs to be taken when a court is asked to make a determination of the present kind. Emmett J described that caution in Munn in the following terms (at ):
… 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)
To similar effect, see CG at  and Dale v Western Australia (2011) 191 FCR 521;  FCAFC 46 at . These factors are all present in this matter. The determination, if made, will concern real property, it will constitute a judgment in rem binding the whole world and, once made, it will have that binding effect for all time subject only to the very limited exceptions contained in s 13 (see at  and  above). Moreover, in CG at , the Full Court urged this type of caution when a court was being asked to make a negative determination of native title following a fully contested hearing. That being so, I consider much greater caution is required in an unopposed and uncontested application for a negative determination under s 86G of the NTA.
58 Secondly, for the reasons discussed at length above and subject to the reservations expressed at , I do not consider it is open to make this negative determination of native title in the circumstances of this matter because to do so would be inconsistent with one of the main objects and purposes of the NTA.
59 Thirdly, but alternatively, having regard to all the facts and circumstances of this case, I do not consider Ms Pate has adduced sufficient evidence to discharge her onus to prove, on the balance of probabilities, that no native title exists in the land comprising her lease. In this respect, it is to be noted that the only evidence Ms Pate has adduced in support of her application is her compliance with the formal requirements for s 24FA protection as set out in s 24FC. Conversely, apart from the evidence of the three native title determination applications which covered the land comprising her lease (see at  above), she has not adduced any evidence about the history of that land, the presence or absence of any native title in the vicinity of it, or the presence or absence of any Aboriginal connection with it. She has also not adduced any evidence from the Native Title Representative Body for the area concerned expressing its views as to whether native title rights and interests are likely to exist on that land. This is an important deficiency in the evidence because one of the functions of a Native Title Representative Body under the NTA is to “as far as is reasonably practicable, identify persons who may hold native title in the area for which the [B]ody is the representative body” (see s 203BJ(b)). Moreover, and relatedly, while there is evidence that there has, in the past, been a registered claimant application extant with respect to the land comprising Ms Pate’s lease, which application was subsequently dismissed, Ms Pate has not adduced any evidence to explain how that application managed to pass the registration test in Part 7 of the NTA. Given the function of a Native Title Representative Body mentioned above, it is likely, in my view, that the Body with responsibility for the area covering Ms Pate’s lease will be able to shed some light on that issue. Finally on this aspect, I should record that the existence of that registered claim, albeit that it has since been dismissed, combined with the absence of any evidence to explain how it came to be registered, stands against my drawing the inference that Ms Pate has proffered, that no native title rights and interests exist in the area of her lease. It is because of all these deficiencies in Ms Pate’s supporting evidence that I do not consider she has discharged the onus she bears in this non-claimant application.
60 Further and finally, Ms Pate has not given any explanation as to why the alternative of a registered ILUA discussed at  above is not the most appropriate course in all the circumstances of this matter. The absence of that explanation provides a separate reason why it is not appropriate to exercise the discretion under s 86G and make a negative determination of native title in this matter.
61 For these reasons, I am not willing to exercise the discretion under s 86G of the NTA to make a negative determination of native title with respect to the land comprising Ms Pate’s lease. It follows that the non-claimant application she filed on 18 August 2017, and amended on 15 September 2017, must be dismissed. I will so order.