Federal Court of Australia

Queensland Rifle Association Inc v State of Queensland [2021] FCA 110

ORDERS

THE COURT DETERMINES AND DECLARES THAT:

1.    Native title does not exist in relation to Lot 190 on Crown Plan ML604 in the Parish of Pratten, Queensland.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The applicant is the Queensland Rifle Association Inc. By amended application filed on 6 October 2020, the applicant seeks a determination that native title does not exist in relation to an area of land defined as Lot 190 on Crown Plan ML604 in the Parish of Pratten, Queensland, being an area of land on which the Pratten Rifle Range is located (determination area). The application is made pursuant to ss 13(1) and 61(1) of the Native Title Act 2003 (Cth) (Native Title Act). In support of its application, the applicant read an affidavit of Daniel Richard Bowman O'Brien sworn 14 September 2020. Mr O’Brien is a solicitor acting on behalf of the applicant.

2    On 17 December 2020, the State of Queensland (State) filed a notice under s 86G of the Native Title Act stating that it does not oppose an order in, or consistent with, the terms sought by the applicant. An amended notice was filed on 15 February 2021 to correct a typographical error. The State read two affidavits of Tarquin Terence Nesbitt-Foster sworn 17 December 2020 and 15 February 2021. Mr Nesbitt-Foster is a lawyer at Crown Law acting on behalf of the State.

3    On 6 November 2019, Queensland South Native Title Services (QSNTS), the representative body for South Queensland (encompassing the area covered by the application), filed a notice of intention to become a party to the application. On 6 February 2020, orders were made joining QSNTS as a party to the proceeding under s 84(3) of the Native Title Act. However, on 27 March 2020, QSNTS filed a notice stating that it wished to cease to be party to the proceeding. On that day, the Principal Legal Officer of QSNTS sent an email to the Federal Court and to the applicant advising that QSNTS had considered the material in the application and determined to cease being a party to the application. Pursuant to s 84(6) of the Native Title Act, QSNTS ceased to be a party at that time and has taken no further part in the proceeding.

4    For the reasons set out below, I make the determination sought by the applicant.

Background facts

5    The evidence establishes the following facts.

6    The applicant was formed in 1861 and is the oldest sporting club in Queensland.

7    From 1884, civilian rifle clubs were permitted to affiliate with the applicant. The Pratten Rifle Club is affiliated with the applicant, but is not a separate legal entity. The Pratten Rifle Club is based at the Pratten Rifle Range which is situated on approximately 56.13 hectares (178 acres) of land that was leased to the Commonwealth of Australia by the State of Queensland on 13 May 1910 for the purposes of a rifle range. The instrument of lease stipulated that the Commonwealth occupied the land under a “mere tenancy at will” terminable at any time upon written demand of possession by the State of Queensland. On 1 April 1921, the lease was replaced with a letter granting the Commonwealth “permissive occupancy” of the land for the same purpose.

8    The area of land on which the Pratten Rifle Range is located has not altered since 13 May 1910 and is the determination area. It is located about 1 km west of Pratten, 30 km north west of Warwick and 22 km south west of Clifton in the Southern Downs region of Queensland.

9    By letter of offer dated 23 June 1999 and notification of acceptance dated 27 June 1999, the Queensland Department of Natural Resources granted the “Pratten Branch” of the Queensland Rifle Association Inc a twenty year lease over the determination area for sporting and recreation purposes, being a target shooting range.

10    On 24 August 2018, the applicant applied for the renewal of the lease over the determination area. Following correspondence, on 20 June 2019, the Queensland Department of Natural Resources, Mines and Energy (DNRME) wrote to the applicant (designated as Queensland Rifle Association Inc (Pratten Branch)) offering to renew the lease over the determination area for a further 20 year term. The offer was conditional on, amongst other things, the applicant filing a non-claimant application in the Federal Court and the Court determining that native title does not exist over the determination area prior to the lease being renewed. The offer contemplated that extensions of time may be granted by the DNRME to allow the offer conditions to be satisfied.

11    On 12 September 2019, the applicant filed the present application in the Federal Court for the purpose of satisfying the native title offer condition.

12    On or about 19 September 2019, notice of the application was given to the relevant persons by the Native Title Registrar in accordance with s 66 of the Native Title Act, including the QSNTS.

13    On 6 November 2019, the National Native Title Tribunal (NNTT) publicly notified the non-claimant application in the Koori Mail and the Toowoomba Chronicle pursuant to s 66(3) of the Native Title Act. The notice of non-claimant application:

(a)    specified a notification day of 6 November 2019 and identified the notification period as ending on 5 February 2020;

(b)    identified that the application is a non-claimant application whereby the applicant seeks a determination that native title does not exist in relation to the area described;

(c)    identified that the applicant has a non-native title interest in the area, having applied to the State to enter into a new 20 year lease over the determination area to enable it to continue its activities;

(d)    noted that unless there is a relevant native title claim over the area on or before 5 February 2020, the area may be subject to protection under section 24FA of the Native Title Act and acts may be done which extinguish or otherwise affect native title; and

(e)    noted that a person who claims native title rights and interests may also seek to become a party to the non-claimant application in order for those rights and interests to be taken into account in the Federal Court’s determination.

14    As noted earlier, on 6 November 2019, QSNTS filed a notice of intention to become a party to the application. However, on 27 March 2020, QSNTS filed a notice stating that it wished to cease to be party to the application.

15    The only native title determination application that has been filed before, within or since the notification period is the application the subject of this proceeding. There are no determinations of native title or indigenous land use agreements over the determination area.

16    As noted earlier, on 17 December 2020, the State filed a notice under s 86G of the Native Title Act stating that it does not oppose an order in, or consistent with, the terms sought by the applicant.

17    The DNRME has extended the current lease to the applicant over the determination area until 26 June 2022 and has granted rolling extensions of time to allow the applicant to advance this application to achieve compliance with the native title condition of the offer to renew the lease over the determination area.

The legislative framework and applicable principles

18    By s 13(1) of the Native Title Act, an application may be made to this Court for a determination of native title in relation to an area for which there is no approved determination of native title. A determination of native title is a determination whether or not native title exists in relation to a particular area of land or waters (see s 225). Accordingly, a determination of native title may be a determination that native title exists in a particular area (a positive determination) or a determination that native title does not exist (a negative determination).

19    By s 61 of the NTA, the persons who may make an application for a determination of native title in relation to an area include a person who holds a "non-native title interest" in relation to the whole of the area. The word “interest”, in relation to land or waters, means (amongst other things) a legal or equitable estate or interest in the land or waters or a right (including under an option) in connection with such an estate or interest (see s 253).

20    Section 66 of the Native Title Act requires the Native Title Registrar to give notice of the application to various categories of person including the representative bodies for the area covered by the application, the relevant State or Territory Minister and the public, and regulates the contents of the notice. By s 84(3), any person with an interest in relation to the land (including a claimed native title interest) who gives notice to the Court within the period specified in the notice under s 66 is automatically a party to the proceeding in respect of the native title determination application.

21    Section 86G addresses unopposed applications and provides as follows:

86G 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.

22    The burden of proof on an applicant seeking a negative determination of native title has been considered in a number of decisions of the Full Court of the Federal Court: see Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 (Worimi), CG (Deceased) on behalf of the Badimia People v State of Western Australia (2016) 240 FCR 466 (Badimia) and Mace v State of Queensland (2019) 274 FCR 41 (Mace). Three overarching principles emerge from those authorities:

(a)    First, whether there is a contradictor to an application for a negative determination 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 (Worimi at [80]; Mace at [44]). The burden of proof is the balance of probabilities (Worimi at [67]; Badimia at [48]; Mace at [54]).

(b)    Second, whether the applicant has discharged its burden depends upon the facts of the case as established by the evidence before the Court, including particularly 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 (Worimi at [87]; Mace at [47] and [48]).

(c)    Third, 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 Native Title Act. The fact that a determination of native title (positive or negative) binds the world and does not operate only between the parties warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings (Badimia at [48]; Mace at [66]).

23    Applications for a negative determination can vary greatly. At one end of the evidentiary scale, there may be no need to go beyond proof of an extinguishing grant of freehold title (Worimi at [58] and [59]; Mace at [49]). At the other end are contested cases in which an Indigenous respondent gives evidence about that person’s connection, under traditional law and custom, to the land in question (Mace at [51]). Where there is no evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which could “cast doubt” on the case brought by the applicant that no native title exists (Mace at [51]). The Court must act on evidence and does not speculate about the possibility of the existence of native title rights and interests (Mace at [52]-[54]). As such, an application for a negative determination does not involve any general inquiry into what native title rights and interests may have existed at the time of sovereignty, or effective sovereignty; nor any general inquiry into how those rights and interests may or may not have continued (Worimi at [56] and [58]; Mace at [55]).

24    One purpose of the notification requirements in s 66 of the Native Title Act is to ensure, so far as appropriate, that any person who has an interest in the potential outcome of a native title determination application is given the opportunity to participate in the conduct of that application (Badimia at [21]). It is also implicit in s 66 that Parliament intends a representative body for the area the subject of an application for a negative determination, consistently with its functions, to assist and facilitate any opposition to the application by persons who may hold native title (Mace at [96]). The Court can reasonably expect such a representative body to provide some evidence or information to the Court about what it knows, or does not know, about potential native title holders for the determination area, although the weight to be given to the absence of a response is a matter for the Court (Mace at [94]).

Consideration

25    This application for a negative determination is unopposed. The only respondent to the proceeding, the State, has filed a notice in accordance with s 86G(2) stating that the State does not oppose an order in, or consistent with, the terms sought by the applicant. In those circumstances, s 86G(1) is applicable. The section provides that the Court may make an order in respect of the application if:

(a)    the period specified in the notice given under s 66 has expired;

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

(c)    it appears appropriate to make the order.

26    As to the first condition, the evidence establishes that the period specified in the notice given under s 66 ended on 5 February 2020, and therefore that period has expired.

27    As to the second condition, the evidence establishes the following matters. First, the application is for a determination that native title does not exist in a specified area, which is a determination of native title within the meaning of s 13(1)(a) of the Native Title Act. Second, there is no approved determination of native title in relation to the determination area, as required by ss 13(1) and 61A(1) of the Native Title Act. Third, the applicant has an interest in the determination area by reason of having a leasehold interest in the determination area and a contractual right to renew the lease (subject to the Court making the determination the subject of this application). The definition of “interest” in s 253 of the Native Title Act includes both proprietary and contractual rights, powers or privileges in respect of land: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at pp 14 and 19 (Lockhart J); Kanak v Minister for Land and Waters (2000) 106 FCR 31 at [28] and [34] (Madgwick J). Fourth, the Federal Court has jurisdiction in respect of the application by s 81 of the Native Title Act. Accordingly, the determination sought by the applicant is within the power of the Court.

28    As to the third condition, whether it is appropriate to make the order sought, the application is made on the basis that the evidence shows, on the balance of probabilities, that there is no native title that continues to exist in respect of the determination area. The applicant invites the Court to draw that inference from the cumulative effect of the following matters established by the evidence.

29    First, the applicant has occupied the determination area since 1910. During that time, the land has been used as a rifle shooting range. I infer from the nature of the use of the land that, during that period, the use of the land as a rifle range was observable and all other persons have been excluded from the land.

30    Second, notwithstanding the first matter, there has never been a native title application in respect of the determination area (save for the present application).

31    Third, the present application was provided to the QSNTS in accordance with s 66(2A) of the Native Title Act and has been publicly notified in accordance with the requirement of s 66(3). The QSNTS initially became a party to the proceeding, but withdrew after reviewing the materials filed with the application. I infer from these circumstances that the QSNTS is not aware of any potential native title holders for the determination area.

32    Fourth, despite the elapse of a considerable period of time from the commencement of this proceeding and the notification given under s 66(3) of the Native Title Act, no other person has sought to become a party to the proceeding to assert a native title claim.

33    It is important to emphasise that none of the above facts can be determinative of the application. The relevant question is whether, having regard to all of those facts, the Court should be satisfied there is no native title that continues to exist in respect of the determination area.

34    In the circumstances of this case, I am satisfied that the applicant has discharged its onus of establishing, on the balance of probabilities, that native title does not exist over the determination area and that it is appropriate to make the determination sought by the applicant. Although the evidence before me is relatively confined, I consider that it goes further than mere compliance with the procedural requirements of the Native Title Act (cf Mace at [166]). The cumulative weight of the evidence enables me to infer, from the absence of any native title claim in respect of the determination area at any time, that no native title continues to exist. There are no matters arising from the evidence in this case which would render it inappropriate to make a negative determination.

Associate:

Dated:    17 February 2021