Federal Court of Australia

WG & DK Ryan Pty Ltd (Trustee) v State of Queensland [2021] FCA 499

ORDERS

THE COURT ORDERS THAT:

1.    There is no native title in relation to the land described as Term Lease 0/239006 over Lot 21 on Crown Plan DSN937 Title Reference 40071658.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    This is an application made pursuant to s 13(1) of the Native Title Act 1993 (Cth) (NTA) for a determination of native title under s 61(1) of the NTA filed by the applicant, WG & DK Ryan Pty Ltd. The applicant seeks a determination that native title does not exist in relation to Lot 21 on Crown Plan DSN937, located in the town of Springsure in the Central Highlands local government area in Queensland (the Land). The applicant is the registered lessee of the Land.

2    The State of Queensland is the only respondent to the application. There was no appearance by any other party. The State of Queensland has indicated by way of a notice under s 86G of the NTA that it does not oppose an order in, or consistent with, the terms sought by the applicant.

3    Both the applicant and the State of Queensland relied on thorough and helpful written submissions during the hearing of the application.

4    The evidence relied on in support of the application is an affidavit of Daniel Richard Ryan filed on 26 February 2021 (DRR) and an affidavit of Peter William Stokes filed on the same date (PWS).

Background

5    As deposed to in DRR at [3], the Land is a parcel of approximately 6.8 hectares. The entire area of the Land is operated by the applicant, in conjunction with six adjacent and nearby parcels of land which are freehold estates owned by the applicant (DRR at [10]-[11]). Currently, the Land is used for the purposes of a cottage and a weighbridge, which is required for the operation of grain silos and sheds located on the adjacent freehold parcel owned by the applicant (DRR at [9]-[10]). There are no watercourses which traverse the Land (DRR at [13]).

6    On 19 May 2017, the applicant became the registered lessee of the Land after acquiring the lease for the Land from the then registered lessee, Grainco Australia Pty Ltd (DRR at [2]). The lease over the Land is a Term Lease TL 0/239006 on Title Reference 40071658, being a rolling term lease for the purpose of storage. The Lease was originally granted to Grainco on 10 March 2016 for a 30 year term, ending on 9 March 2046 (DRR at [4]-[5]). The previous tenure was a special lease for business (bulk grain storage), originally granted to Bulk Grains Queensland on 18 April 1986 for a period of 30 years. That special lease was subsequently transferred to the Queensland Grain Handling Authority and then to Grainco Queensland Co-operative Association Limited (DRR at [7]-[8]).

7    On 4 March 2020, the applicant lodged an application with the then Department of Natural Resources, Mines and Energy, now the Department of Resources, for the conversion of the Lease to a freehold interest.

8    On 6 May 2020, the Department provided the applicant with an Agreement to Offer Conversion of the Lease, subject to certain conditions that are required to be satisfied prior to the Land being converted to freehold and which included written advice as to how the applicant will address native title with respect to the proposed freehold grant either by way of negotiation and registration of an indigenous land use agreement, or by way of filing a non-claimant application with this Court resulting in a determination that native title does not exist.

9    Section 86G of the NTA provides that:

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.

10    The principles applicable to the consideration of a non-claimant application under s 61 of the NTA were recently addressed in Mace v State of Queensland [2019] FCAFC 233; (2019) 274 FCR 41, where regard was also had to earlier principles established in the Full Court decision of Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320. While the non-claimant applications in Mace were unopposed, as stated in the summary of the principles below, the legal question remains the same whether or not there is a contradictor to the application.

11    The principles in Mace have been helpfully summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10]. There is no need to repeat that summary here.

12    The key questions for determination are whether the orders sought by the applicant are within the power of the Court, and whether it is appropriate for the Court to make those orders. On the facts before this Court both questions are answered in the affirmative, having regard to the principles articulated by the Full Court in Mace and the subsequent application of those principles in such cases as Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1507 and Murphy v State of Queensland [2021] FCA 81.

Power of the Court to make the determination

13    In respect of whether the orders sought are within the power of the Court, 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 (NTA s 81). A “determination of native title” is a determination as to whether or not native title exists in relation to a particular area (NTA s 225) and includes a negative determination of native title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466.

14    The non-claimant application was filed pursuant to s 13(1)(a) and s 61(1) of the NTA and it is not in dispute that notice was given of the application as required by s 66(3) of the NTA. There has been no approved determination of native title in relation to the Land to date. There is also no dispute between the parties that the prescribed notification period under ss 66(10)(c) came to an end on 8 December 2020, and that no Form 5 party applications have been filed in the proceeding. Therefore, there are no persons who oppose the non-party application. As the order sought is within the power of the Court, the question that follows is whether I am satisfied on the evidence which is before me that the proposition that native title does not exist has been made out to the relevant civil standard: Mudgee Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 668 at [8].

Appropriateness of the order sought

15    The onus rests on the applicant to substantiate its claim for a negative determination: Worimi at [74], cited in Wagonga at [10] in Proposition (12). Each case must be assessed on its own 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: Mace at [48], cited in Wagonga at [10] in Proposition (5).

16    In this case, the uncontested evidence before the Court is that searches conducted with, and information provided by, the National Native Tribunal have established that there is no previous determination of native title in the Land and that there is no current application in relation to the Land (PWS at [7]). There were five historical native title claims over the Land to which I will return.

17    The evidence also discloses that enquiries were made with the representative body for the area covered by the non-claimant application, being Queensland South Native Title Services (QSNTS) (PWS at [9]-[10] and [12]-[13]). QSNTS indicated that it was “aware of persons who assert they hold native title in the area” of the Land but did not provide any details of who, or the nature or content of any such potential claim (PWS at [11], [14]-[15], PWS-10). QSNTS did not seek to be joined to this proceeding on behalf of a potential native title claimant. In circumstances where it might be expected that a representative body such as QSNTS would be expected to be “a likely repository of at least some information about potential native title holders” in the relevant region (Mace at [95]-[96]), I give no weight to the bare assertion that QSNTS is “aware” of potential claims, particularly in circumstances where there has been no subsequent substantiation of any such possible interest.

18    Five historical claims to native title have been made in respect of the Land involving three different claim groups: the Bidjara People, the Garingbal and Kara Kara People, and the Kangoulu People.

The Bidjara People

19    Three of the previous claims were made by native title groups associated with the Bidjara People. The first (QC1997/001) was filed on 15 January 1997, and withdrawn on 4 November 1997. The second (QUD6156/1998 Bidjara People #3) was filed on 28 October 1997 and discontinued on 5 September 2008. The third (QUD216/2008 Bidjara People #6) was filed on 23 July 2008 and was dismissed by the Federal Court, in relation to an area of “overlap” within the claim area (the Overlap Area), on 6 December 2013, and as to the balance of the claim area, on 5 July 2016.

20    In Mace, the subject land was overlapped by the Bidjara People claims. In the present case, the Land might be overlapped by the historic Bidjara People claims. The applicant submitted that the Court should take judicial notice of the findings in Mace where, in evaluating the nature and content of the Bidjara People claims, the Full Court held, at [121]:

The difficulty for Ms Mailman, and for any Bidjara person who was part of the claim group in the previous Bidjara proceedings, is that the Court has found any native title rights and interests asserted by the Bidjara People cannot be recognised under Australian law because the traditional laws and customs through which those rights and interests arise have not continued to be recognised and practised by the Bidjara People to the present day. That is why the kinds of matters to which we have referred in [119] above would have been necessary to address if an attempt was to be made to invite the Court not to treat the previous Bidjara decisions as having any significant weight in the consideration of this non-claimant application.

21    The matters referred to in [119] included details of conversations between potential native title holders, including whether there were senior claimants involved whose agreement might be necessary for a claim, whether appropriate research had been undertaken about the proposed composition of the claim group and, whether the land and waters claimed would be different to those claimed in the previous Bidjara claims.

22    The Bidjara People #6 claim was dismissed with respect to the Overlap Area in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229. In Mace, the Full Court held, at [152]:

…the previous Bidjara proceedings, and in particular the outcome in the Bidjara #6 claim, are of considerable weight in the Mace applicant’s case that no native title exists over the Mace land…this Court has found, after a fully contested trial, that those who now identify as Bidjara People do not possess rights and interests under traditional law and customs which give them a connection with the land and waters they identify as Bidjara country, because no body of traditional law and customs, as opposed to attenuated or transformed fragments of law and customs, has continued to the present day. Those findings were unanimously upheld on appeal, and were of sufficient strength to make a negative determination in the overlap area.

23    In the light of that decision, and in circumstances where there is no evidence of an assertion of native title in the Land addressing the matters identified in Mace as matters which would need to be addressed in evidence to treat the Bidjara People claims as having any significant weight in the consideration of an overlapping non-claimant application, and in circumstances where no one from the Bidjara People has sought to be heard on this application, I am satisfied that there is no evidence of any substance that the Bidjara People maintain an interest of any kind in the Land.

The Garingbal and Kara Kara People

24    The second group of people who have previously claimed an interest which overlaps the Land is the Garingbal and Kara Kara People (GKK People). The GKK People claim (QUD6233/1998) was filed on 5 August 1997 in response to a non-claimant application. The application did not survive the registration test under ss 190C(2) and (4) of the NTA. (PWS at [20(d)(i)] and PWS-17).

25    In the circumstances, I am not satisfied that the mere existence of this historical claim, without any evidence of any substance from the GKK People, and in circumstances where they have not sought to be heard on this application, weighs against the making of the determination sought by the applicant. I am satisfied that there is no evidence that the GKK People maintain an interest of any kind in the Land.

The Kangoulu People

26    The third group of people who have previously claimed an interest which overlapped the Land is the Kangoulu People. The Kangoulu People claim (QUD6195/1998) was filed on 11 May 1998 and was accepted for registration on 7 September 2000. The claim was ultimately dismissed on 1 September 2009 (PWS at [20(e)(ii)] and PWS-19 and PWS-20).

27    In the circumstances, I am not satisfied that the mere existence of this historical claim, without any evidence of any substance from the Kangoulu People weighs against the making of the determination sought by the applicant. In circumstances where the Kangoulu People had nine years post registration to particularise their claim, and in circumstances where they have not sought to be heard on this application, I am satisfied that there is no evidence that the Kangoulu People maintain an interest of any kind in the Land.

28    In the circumstances, 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 Land.

Conclusion

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

Associates:

Dated:    13 May 2021