FEDERAL COURT OF AUSTRALIA

Murphy v State of Queensland [2021] FCA 81

ORDERS

THE COURT ORDERS THAT:

1.    There is no native title in relation to Lot 15 on Crown Plan WBN844084 title reference 40055177, and Lot 1 on Survey Plan 204907 title reference 40055179.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is a non-claimant application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (Native Title Act) filed by the applicants, Mr Raymond Murphy and Ms Pamela Murphy. The applicants are the registered lessees (as joint tenants) of the following lots:

    Lot 15 on Crown Plan WBN844084, title reference 40055177; and

    Lot 1 on Survey Plan 204907, title reference 40055179.

Collectively these lots are known as Lina Glen Station (Land).

2    The State of Queensland (State) has indicated by way of a notice under s 86G of the Native Title Act that it does not oppose the order sought by the applicants, but has also indicated that it does not entirely agree with the analysis of the law and evidence put forward by the applicants. There was no appearance in these proceedings as a respondent by any party other than the State.

background

3    The Land is located in Jundah in the Barcoo Shire Council Local Authority area. The Land is rural, 35,820 hectares in area, with little vegetation, and includes improvements consisting of a homestead, a shed, fencing and 14 dams. It is currently unstocked, although it has the capacity to graze about 1,200 cattle.

4    The applicants have been the registered lessees of the Land since November 2004. The evidence before the Court is that, currently, no person lives on the Land, nor has any person lived there for some years.

5    In early February 2018, the applicants made an application pursuant to s 166(1)(b) of the Land Title Act 1994 (Qld), to the Queensland Department of Natural Resources Mines and Energy (Department), to convert the State leasehold interest of the applicants in the Land to freehold title.

6    On 21 February 2018, the Department advised the applicants that tenure would not be granted unless any native title was extinguished by way of an Indigenous Land Use Agreement (ILUA) or determined not to exist by this Court.

7    On 3 October 2018, the solicitors for the applicants carried out a search of the Register (Register) of the National Native Title Tribunal (Tribunal) in respect of the Land. That search indicated that there were no relevant entries in relation to native title determination applications, native title claims, or notified ILUAs.

8    A previous claim in respect of the Land (the Mithaka Claim) was filed on 28 November 2002 and registered from 24 December 2002. The Mithaka Claim was amended several times. Relevantly, an amendment on 1 October 2015 resulted in the Land being excluded from the claim. The Mithaka Claim was determined by consent on 27 October 2015: see Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116. This judgment recognised native title over the land the subject of the Mithaka Claim.

current application before the court

9    The applicants filed a non-claimant application on 21 March 2018. An amended non-claimant application (the application) was filed on 18 May 2018, and it is upon this amended application that the applicants rely.

10    Part A of the application sets out the applicants’ details of their claim, which are stated to be as follows:

The applicant applies for a determination of native title under subsection 61(1) of the Native Title Act 1993.

1.    The Applicants are the holders of State Leasehold land as follows:-

(a)    Lot 15 on CP WBN844084 being Term Lease 0/0231829, Title Reference 40055177; and

(b)    Lot 1 on SP204907 being Rolling Term Lease TL0/231830, Title Reference 40055179.

Known as “Lina Glen” Station, 3489 Lina Glen Road, Jundah, Queensland 4376.

2.    The Applicants have made application to the Queensland Department of Natural Resources Mines and Energy pursuant to section 166(1)(b) of “The Land Title Act 1994” to convert the State Leasehold interest of the Applicants in the above holdings to freehold title.

3.    In respect of the above application the Applicants have paid the necessary deposit, stamp duty and deed fee to the Department of Natural Resources Mines and Energy for the matter to proceed.

4.    The Department of Natural Resources Mines and Energy has advised that before the application can proceed the Applicants must address the issue of National Native Title in respect of the land and the Applicants have elected to address Native Title through the non-claimant process under “The Commonwealth Native Title Act 1993” by means of a Federal Court Determination that Native Title does not exist in relation to the non-claimant application areas referred to above.

11    The order sought by the applicants, set out in Schedule E to their application, is as follows:

The Federal Court of Australia determines that in relation to an application for conversion to freehold title of:-

(a)    Term Lease 0/231829 over Lot 15 on CP WBN844084; and

(b)    Term Lease 0/231830 over Lot l on SP204907

That Native Title does not exist in relation to the non-claimant application process for such areas.

submissions and evidence of the parties

The applicants’ case

12    The applicants submitted that the following factors formed the basis for a finding that there is no native title over the Land:

    Notwithstanding the notification process under the Native Title Act which closed on 26 September 2018, no person appeared to assert native title over the Land.

    There were no current applications seeking a determination of native title over the Land other than the applicants’ application.

    The history of the Mithaka Claim and the withdrawal of that claim from the Land.

    The nature of the Land and the absence of Aboriginal connection to the land during the current applicants’ occupation. In relation to this point the applicants submitted that:

(a)    during the time the applicants had occupied the Land as lessees they had not witnessed nor been aware of any Aboriginal person accessing, seeking to access, or being present on the Land for any reason; and

(b)    the applicants were not and have never been aware of the existence of any sites located on the Land which were of significance to any Aboriginal people.

    Although in correspondence to the applicants’ solicitor the representative body for the area, Queensland South Native Title Services (QSNTS), had asserted knowledge of persons who could assert native title in the area, this assertion should not preclude the determination the applicants sought in light of relevant persons having been notified and the lack of opposition to the current application. The facts before the Court were distinguishable from those in Pate v State of Queensland [2019] FCA 25.

13    The evidence on which the applicants relied was as follows.

14    First, an affidavit of their solicitor Mr Arthur Browne filed 11 January 2019. Relevantly, attached to that affidavit were letters from the Tribunal confirming that, as at 3 October 2018 and 11 January 2019, there were no relevant entries on the Register that fell within the external boundaries of the application.

15    Second, an affidavit of the first applicant, Mr Raymond Murphy, filed on 12 February 2019. In addition to describing the land, Mr Murphy deposed that for some years no person had lived on the land as “caretaker”, and that the applicants sought to have the land converted to freehold for commercial reasons.

16    Third, a further affidavit of Mr Browne filed on 8 March 2019, to which Mr Browne annexed copies of State tenure searches in relation to the two rolling term leases relating to the Land. Mr Browne deposed that his records showed that:

    both rolling term leases were purchased by the applicants in 2004;

    it was not possible for a prior historical State tenure search to be conducted of the rolling term leases because they had been renewed in 2007; and

    a search of the Register conducted on 7 March 2019 showed that there were no relevant entries which fell within the external boundaries of the application.

17    Mr Browne further deposed that:

    on 7 February 2019 he caused a letter to be written to the Manager of QSNTS in which he asked, inter alia, whether QSNTS was aware of any person or group that could assert native title over the relevant properties; and

    subsequently on 11 February 2019 he caused a letter to be written to Ms Megan Gorringe of Mithaka Aboriginal Corporation in which, inter alia, he stated that the applicants had made an application to the Federal Court through the non-claimant process seeking a determination that native title did not exist, and sought written confirmation that the Mithaka People did not claim native title in the Land.

18    In a letter dated 14 February 2019 (also exhibited to Mr Browne’s affidavit), Mr Tim Wishart of QSNTS wrote to Mr Browne to the effect that:

    QSNTS had been undertaking work on a regional research project which included the Land;

    he was aware that Aboriginal persons who did not identify as Mithaka had asserted that they held native title interests in country that included the Land; but

    he could not assess the strength of those assertions.

19    No written response to Mr Browne’s letter to Ms Gorringe appeared to have been made by Ms Gorringe. However, a file note attached to Mr Browne’s affidavit was to the effect that, in a telephone conversation between Ms Gorringe and an employee of Mr Browne on 28 February 2019, Ms Gorringe was unable to provide any information concerning any interest of the Mithaka People in the Land.

20    Fourth, a further affidavit of Mr Murphy filed 2 April 2020, in which Mr Murphy relevantly deposed:

5.    I say that for the entire time my wife and I have been the Lessees of the Rolling Term Leases described in paragraph 2 of this Affidavit that:-

(a)    I have not witnessed nor am I aware (through my relative who supervises the land in my absence) of any aboriginal person accessing the Land for any purpose;

(b)    I have never been contacted by any aboriginal person seeking access or use of the Land for any purpose; and

(c)    I am not and have never been aware of the existence of any sites of significance to any aboriginal person that are located on the Land.

The State’s case

21    The State submitted that it was open to conclude that it was within the Court’s power, and appropriate for the Court, to make the determination sought by the applicants. However, the State submitted that this was for reasons other than those advanced by the applicants. In particular:

    Section 86G of the Native Title Act empowered the Court to make a negative determination without holding a hearing, provided the requirements of the section were met.

    Sections 94A and 225 of the Native Title Act are relevant to orders which could be made in relation to a non-claimant application.

    The applicants bore the onus of satisfying the Court, on the balance of probabilities, that native title did not exist over the Land.

    The clearly established approach for the determination of non-claimant applications was explained by the Full Court in Mace v State of Queensland (2019) 375 ALR 717; [2019] FCAFC 233. The better approach was to focus on the evidence before the Court.

    In this case the Court had power to make the order sought because, inter alia, the only other party to the proceeding – namely the State – had notified the Court in writing that it did not oppose an order in the terms sought by the applicants.

    Although the Mithaka Claim did not seek inclusion of the Land in the relevant native title determination, this necessitated an unsupported inference that the Mithaka People made a deliberate decision that they no longer claimed native title over the Land.

    Responses from QSNTS and the registered Native Title Body Corporate were not conclusive that the Mithaka People did not assert native title over the Land, nor that no other indigenous persons would not assert native title over an area including the Land. QSNTS did not seek, however, to be joined as a party to the applicants’ non-claimant application.

    The decision of the applicants to address native title over the Land by a non-claimant application rather than an ILUA was irrelevant to matters to be decided by the Court.

22    No evidence was filed by the State in this proceeding.

Consideration

23    Interestingly, the power of the Court to make orders in the terms sought by the applicants, and the appropriateness of such orders, are not in dispute between the applicants and the State. It is the basis for making such orders that is in some contention.

Relevant authorities

24    The leading authority in this area is clearly the decision of the Full Court in Mace, which was heard by the Full Court sitting in the Court’s original jurisdiction. In Mace, the Full Court heard, together, two non-claimant applications filed pursuant to s 61 of the Native Title Act. In one of the matters the respondents were the relevant native title representative body (NTSCORP) and the State of New South Wales. In the other matter the respondents were the relevant native title representative body (QSNTS) and the State of Queensland. In both matters the relevant representative body opposed the non-claimant application.

25    After setting out the legislative framework pursuant to which the Court may make a determination, the Full Court observed that the fundamental question for the Court:

44.    …remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area?

26    Helpfully, the principles articulated by the Full Court in Mace were summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113, as follows:

10.    The Full Court of the Federal Court recently considered non-claimant applications under the NTA in Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717 (Mace). The following propositions are established in Mace, including principles established by an earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi):

(1)    The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].

(2)    The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42].

(3)    Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].

(4)    The overriding proposition is that each case must be assessed on its own particular facts: [47].

(5)    Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48].

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

(7)    All issues are to be assessed on the usual standard of proof in civil litigation – proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].

(8)    A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].

(9)    The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]-[60].

(10)    In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].

(11)    In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a “prima facie” position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].

(12)    The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, WLALC.

(13)    In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA: [66].

(14)    No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].

(15)    If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].

(16)    The Court’s task is not to be more or less “stringent” depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82].

(17)    The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97].

11.    The non-claimant application in the present case is to be decided consistently with these propositions. Most importantly, the case is to be decided on the whole of the evidence which has been adduced. The question is whether, having regard to all of the evidence, WLALC has proved on the balance of probabilities that there is no native title in the land…

27    I respectfully adopt this summary by Jagot J.

28    Subsequently, in Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236, Abraham J considered an unopposed non-claimant application for a determination of native title under s 61(1) of the Native Title Act in respect of land and waters in the Lake Macquarie City Council local government area. Her Honour referred to Mace, noting that the question for the Court was whether the applicant had discharged its burden of proof that no native title exists in the claim area, and that each case must be assessed on its own facts. Her Honour further referred to s 86G of the Native Title Act which empowers the Court to make orders where an application is unopposed, and the Court is satisfied that the order sought is within the power of the Court and is appropriate. In that case her Honour noted, inter alia, that:

    it was not in dispute that the formal requirements set out in s 66 of the Native Title Act had been complied with; and

    there was ample basis for the Court to conclude on the balance of probabilities that there were no persons or groups who asserted native title rights and interests in the claimed land.

29    Subsequently, in Awabakal Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1507, Griffiths J considered an unopposed non-claimant application for a determination of native title under s 61(1) of the Native Title Act in respect of land and waters in the Newcastle City Council and the Lake Macquarie City Council local government areas.

30    Relevantly, his Honour noted at [34] that while the application was unopposed, there was a difference in position between the parties as to whether it should be decided on the basis that native title had not been claimed, or alternatively that native title had been extinguished. His Honour continued:

35.    As noted above, the overriding proposition is that each case must be assessed on its own particular facts, on the nature of the land and tenure involved, on the presence or absence of any present or previous native title claims and the nature and content of those claims and on any particular evidence adduced (see Mace at [48]). As stated in Mace at [68], “no hard and fast rules can be laid down about what evidence might be required, or what might suffice, for an applicant to meet the requisite standard of proof.”

31    In that case his Honour was satisfied that no native title existed on the basis that:

    there was no approved determination of native title over any part of the application area;

    no claimant application had been filed during the notification period in relation to any part of the application area nor subsequently;

    no person opposed the application;

    there was no evidence from the representative body identifying any person or group who might hold native title in the area;

    the absence of evidence from local Aboriginal people was not a hurdle to finding that no native title existed; and

    the orders sought were both within the Court’s power and appropriate to be made.

Discussion

32    As I have already noted, it is not in dispute that the application before the Court is unopposed. Section 86G of the Native Title Act is accordingly applicable. The section provides:

Unopposed applications

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.

33    Applying s 86G, the key questions for determination are whether the orders sought by the applicants are within the power of the Court, and whether it is appropriate for the Court to make those orders. In considering these issues the case clearly turns on the facts before me, having regard to the principles articulated by the Full Court in Mace and the subsequent application of those principles in such cases as Bahtabah and Awabakal.

34    In respect of whether the orders sought are within the power of the Court, the amended non-claimant application presently before the Court was filed pursuant to s 13(1)(a) and s 61(1) of the Native Title Act, and it is not in dispute that the application was notified by the Tribunal as required by s 66(3) of the Native Title Act. The Federal Court of Australia has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title, and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court: s 81 Native Title Act. A “determination of native title” is a determination whether or not native title exists in relation to a particular area (s 225 of the Native Title Act) and includes a negative determination of native title: CG (Deceased) on behalf of the Badimia People v State of Western Australia (2016) 240 FCR 466; [2016] FCAFC 67.

35    There is no approved determination of native title in relation to the Land. It is also not in dispute that the notification period ended on 26 September 2018 (s 86G(1) of the Native Title Act), no relevant entries over the Land were recorded in the Register of any native title claims, and no party other than the State appeared as a respondent in the proceedings.

36    The State notified the Court that it did not oppose an order in, or consistent with, the terms sought by the applicants: ss 86G(1) and (2) of the Native Title Act.

37    It is clear that the Court has power to make a negative determination of title as sought.

38    The next question is whether it is appropriate for the Court to make the orders sought.

39    The onus rests on the applicants to substantiate their claim for a negative determination. Again, I note that, as the Full Court explained in Mace, each case must be assessed on its own particular facts, including the nature of the land and tenure involved, the presence or absence of any native title claims (including previous claims), and any evidence adduced by the parties.

40    In this case, the uncontested evidence before the Court is that there were no responses to the public notification process. QSNTS, as the representative body which would be expected to have evidence or information concerning potential native title holders in respect of the Land, did not participate in the proceedings and did not seek to be a party to the proceedings. Further, such evidence as is before the Court was that QSNTS provided no view to the applicants about the existence of native title interests in the Land other than a bare assertion to the solicitors of the applicants of a possible interest in the land by unidentified Aboriginal persons. In my view this assertion should be given no weight, in circumstances where there has been no subsequent substantiation of any such possible interest.

41    I have already noted that prior to October 2015 a native title claim by the Mithaka People included the Land, that claim was amended in 2015 and all reference to the Land in that claim was removed, and a subsequent consent determination in favour of the Mithaka People did not include the Land. It is unclear why the terms of the final Mithaka People application did not include the Land. Further, there is no evidence of the applicants making inquiries after 8 March 2019 concerning whether the Mithaka People continued to assert native title over the Land. However, on the material before the Court, and notwithstanding the clear opportunity afforded to the Mithaka People to assert native title over the Land, there is no evidence of any substance that the Mithaka People maintain interest of any kind in the Land.

42    I note the evidence of the applicants that, during the time of their association with the Land, they have observed no evidence of any physical connection to the land by Aboriginal people (including the presence of any Aboriginal people), no evidence of the existence of any sites of significance to Aboriginal people, nor have they received any requests for access to the Land for cultural purposes by Aboriginal people. I give this evidence some weight, although it is not particularly persuasive in light of the only recent association between the applicants and the Land, the clear absence of relevant expertise in the applicants in respect of cultural issues potentially relevant to the Land, and the fact that physical connection with land is not a necessary precondition to the existence of native title rights and interests in accordance with traditional laws and customs: Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58.

43    It is concerning that the latest inquiries made by the applicants were apparently made in March 2019, some time before the hearing. However, ultimately:

    in the absence of any active respondent – indigenous or otherwise – other than the State, notwithstanding the notification process;

    in the absence of active engagement by the representative body, notwithstanding its awareness of the proceedings; and

    in the absence of an objectively arguable assertion of native title in the Land opposing the applicants’ claim (as explained in Mace at [96]);

it is open to the Court to infer not only that native title does not exist over the Land, but that it is appropriate to make the negative determination sought by the applicants.

44    In the circumstances I am satisfied that the applicants have discharged their onus of establishing, on the balance of probabilities, that native title does not exist over the Land.

45    Ultimately at the hearing it was plain that the positions of the applicants and the State were not markedly apart. It is unnecessary for the Court to consider the applicants’ submissions as to whether an ILUA is an appropriate alternative procedure available to them.

46    The appropriate order is that native title does not exist over the Land.

Associate:

Dated:    9 February 2021