Federal Court of Australia
James Speed Company Pty Ltd v State of Queensland  FCA 626
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The application is allowed.
2. Native title does not exist in relation to the land and waters described as Lot 1118 on Survey Plan 273891.
1 James Speed Company Pty Ltd brings an application pursuant to ss 13(1)(a) and 61(1) of the Native Title Act 1993 (Cth) (NT Act) for a determination that native title does not exist in relation to the land and waters described as Lot 1118 on Survey Plan 273891 (tenure reference PH 2/1118) known as North Delta (Land), which is located approximately 30 kilometres southeast of Bacaldine in the State of Queensland.
2 The applicant is the registered lessee of the Land pursuant to a rolling term lease within the meaning of s 164 of the Land Act 1994 (Qld). It has filed an affidavit affirmed by Mark Boge, solicitor, in support of the application, which sets out details concerning the Land, the background to the present application, and details relevant to the consideration of the application to which reference is made below.
3 The respondent is the State of Queensland. It has filed a notice under s 86G of the NT Act stating that it does not oppose an order in, or consistent with, the terms sought by the applicant.
4 The parties have both filed helpful written submissions in support of the application and have asked that the proceedings be determined on the papers pursuant to s 86G of the NT Act
5 For the reasons given below, I consider it appropriate to determine the matter without a hearing and for the application to be allowed.
6 The Land consists of approximately 30,900 hectares. The lease was initially granted for a term of 30 years commencing on 1 April 1963 and expiring on 31 March 1993, but was extended to 31 March 2056.
7 On 23 June 2020 the applicant applied to the Queensland Department of Resources to convert the lease to freehold title. It was aware that any offer to convert the lease would require it to address native title, and so on 26 February 2021 the applicant filed the present application.
8 On 21 April 2021 the National Native Title Tribunal publicly notified the application in the Koori Mail and on 23 April 2021 it notified the application in the Longreach Leader. Each specified a notification day of 5 May 2021 and identified the notification period as ending on 4 August 2021.
9 Searches of the Register of Native Title Claims conducted on 11 August 2021 and 7 September 2021 found no relevant entries within the external boundary of the Land.
10 More specifically, the search results indicate that the Land has previously been the subject of the following five native title determination applications on behalf of the Bidjara People, each of which has either been withdrawn, discontinued or dismissed:
(a) Lawton and others on behalf of the Bidjara People and their clan groups (proceeding QC1997/001);
(b) Fraser and other on behalf of the Bidjara People (No 3) v State of Queensland (proceeding QUD6156/1998) (the Bidjara #3 claim);
(c) Patricia Fraser & Ors on behalf of the Bidjara People #5 v State of Queensland & Ors (proceeding QUD370/2006) (the Bidjara #5 claim);
(d) Wyman and others on behalf of the of the Bidjara People (No 6) v State of Queensland (proceeding QUD216/2008) (the Bidjara #6 claim); and
(e) Waterton and others on behalf of the of the Bidjara People (No 7) v State of Queensland (proceeding QUD644/2012) (the Bidjara #7 claim).
11 Mr Boge gives evidence that the Lawton claim was withdrawn on 4 November 1997. The Register notes that the Bidjara #3 claim was discontinued, and has been inactive since 5 September 2008, that the Bidjara #5 claim was dismissed on 18 May 2007, and that the Bidjara #6 and #7 claims were dismissed on 5 July 2016.
12 The affidavit of Mr Boge notes that that the Bidjara #6 and #7 claims between them covered the Land. On 5 July 2016, Jagot J ordered that each of these claims be summarily dismissed as an abuse of process; Wyman on behalf of the Bidjara People v State of Queensland  FCA 777 (summary dismissal decision). On 12 April 2017, an application for leave to appeal from that decision was dismissed: Waterton on behalf of the Bidjara People v State of Queensland  FCA 633 (Reeves J).
13 In the summary dismissal decision, Jagot J referred to her earlier decision in Wyman on behalf of the Bidjara People v State of Queensland (No 2)  FCA 1229 (Wyman No 2) and founds as follows at :
In the present case, and as submitted by the State of Queensland:
(a) The continuation of a Bidjara normative system of traditional law and custom since sovereignty was both an ultimate and an evidentiary issue in Wyman No 2. On the evidence, which was extensive and is fully described in Wyman No 2, I found that such a system had not continued. This finding was fundamental to Wyman No 2, and is fundamental to the balance of the Bidjara 6 and Bidjara 7 claims.
(b) A full opportunity to litigate this issue was taken in Wyman No 2. The applicants adduced extensive evidence over a hearing of some 17 days. Having failed in Wyman No 2, the applicants appealed to the Full Court, including an appeal against my conclusion that traditional Bidjara society had not continued. The appeal was dismissed. The applicants had the benefit of legal representation until four days before the Wyman No 2 hearing and were legally represented for the appeal.
(c) The finding on the issue was clear and final.
(d) The issue in Wyman No 2 – the continuation of a Bidjara normative system of traditional law and custom since sovereignty – is identical to the issue in Bidjara 6 and 7.
(e) The applicants have filed further evidence in Bidjara 6 and 7 (as directed), but it is fair to say that the evidence is mainly from the same witnesses who gave evidence in Wyman No 2, and there is no explanation why the evidence was not adduced in Wyman No 2.
(f) Native title litigation is notoriously resource intensive (see Dale at ). These proceedings bear out that observation given the 17 day hearing in respect of the overlap area where the Bidjara 6 claim overlapped with two other groups’ claims. The Bidjara 6 and 7 claims overlap multiple other native title claims. Because the identical issue of the continuation of a traditional society is raised in the Bidjara 6 and 7 claims, those claims can only succeed if a different, inconsistent, finding on the fundamental issue of the continuation of traditional Bidjara society is reached than that in Wyman No 2. Of itself, given the resources consumed in respect of Wyman No 2, this would tend to bring the administration of justice into disrepute. At the same time, it would involve the State of Queensland in what will be, in essence, re-litigation of the same issue previously determined by the Court.
(g) In circumstances where the applicant in Bidjara 6 had, and took, a full opportunity to prosecute the claim for native title and, in so doing, called extensive evidence which must have been intended to support the claim of the continuation of a Bidjara normative system of traditional law and custom since sovereignty, there is little to balance in the applicants’ favour against the factors which point to an abuse of process.
14 The effect of these findings is that the Bidjara #6 and #7 claims could not be litigated further, having regard to the dispositive findings made in Wyman No 2.
15 Section 13(1)(a) of the NT Act provides that an application may be made to the Federal Court of Australia under Part 3 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 of whether or not native title exists in relation to a particular area of land or waters: s 225. Accordingly, a determination of native title may be a positive determination that native title exists in a particular area, or a negative determination, to the effect that native title does not exist.
16 Section 61(1) of the NT Act, which is in Part 3, provides a table that sets out applications that may be made, and the persons who may make them. Item (2) provides that “a person who holds a non-native title interest in relation to the whole of the areas in relation to which the determination is sought” is such a person.
17 Section 253 defines a non‑claimant application to mean a native title determination application that is not a claimant application and defines interest to include, in relation to land or waters, “a legal or equitable estate or interest in the land or waters”.
18 Section 66(1) of the NT Act provides that if the Native Title Registrar is given a copy of an application brought under s 61 (by operation of s 63), the Registrar must comply with the requirements of the section. These requirements relevantly prescribe that the Registrar must provide copies of the application and other material documents as set out in s 66(2) to the State or Territory Minister relevant to the area covered by the application (s 66(2)), as well as representative bodies for that area (s 66(2A)). The Registrar is also required, pursuant to s 66(3)(a), to give notice to other potentially interested parties, including any registered native title claimant in relation to the area covered, any registered native title body corporate in relation to the area covered, any representative Aboriginal/Torres Strait Islander body for the area covered and any local government body. In addition, pursuant to s 66(3)(d), the Registrar must give notice to the public “in the determined way of the application”. Section 66(10) requires a notice under s 66(3)(a) or (d) to include statements about the possibility of a s 24FA protection, the opportunity for only one claim to be made to the same area of land, and the time limit within which one may elect to become a party.
19 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.
20 Section 86G of the NT Act is entitled “Unopposed applications” and provides:
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.
21 In considering an unopposed non-claimant application the question for the Court is whether the applicant has discharged its burden of proof that no native title exists in the claim area: Mace v State of Queensland  FCAFC 233; 274 FCR 41 at  (Jagot, Griffiths and Mortimer JJ).
22 In Queensland Rifle Association Inc v State of Queensland  FCA 110, O’Bryan J at - summarised three overarching principles emerging from recent authority, including Mace, which summary I gratefully adopt:
(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? The burden of proof is the balance of probabilities.
(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.
(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 NT 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.
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 (Mace at ). 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 ). 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 ). The Court must act on evidence and does not speculate about the possibility of the existence of native title rights and interests (Mace at -). 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 (Mace at ).
24 One purpose of the notification requirements in s 66 of the NT 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. 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 ). 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 ).
25 For the following reasons I am satisfied that the applicant has discharged its burden of establishing that its application ought to be allowed.
26 This application is unopposed. The only respondent to the proceeding, the State of Queensland, has filed a notice in accordance with s 86G(2) of the NT Act 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. That 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.
27 As to (a), the evidence establishes that the period specified in the notice given under s 66 ended on 4 August 2021, and therefore that period has expired.
28 As to (b), the evidence establishes the following matters. First, the application is for a determination that native title does not exist in a specified area (here, the Land), which is a determination of native title within the meaning of s 13(1)(a) of the NT Act. Second, there is no approved determination of native title in relation to the Land, as required by ss 13(1) and 61A(1) of the NT Act. Third, the applicant has an interest in the Land by reason of having a leasehold interest in it. The definition of “interest” in s 253 of the NT Act includes both proprietary and contractual rights, powers or privileges in respect of land: Byron Environment Centre Inc v Arakwal People  FCA 797; 78 FCR 1 at pp 14 and 19 (Lockhart J); Kanak v Minister for Land and Waters  FCA 1105; 106 FCR 31 at  and  (Madgwick J). Fourth, the Federal Court has jurisdiction in respect of the application by s 81 of the NT Act. Accordingly, the determination sought by the applicant is within the power of the Court.
29 As to (c), 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. I am satisfied that this is demonstrated by reason of the following matters.
30 The non-claimant application was provided to the Tribunal, which then notified the applicant that the Registrar had provided a copy of the application and accompanying documents to the Queensland state government and also to the representative body for the area covered by the application. It was also advertised in the Longreach Leader and the Koori Mail.
31 No person has responded by claiming native title rights and interests over the Land, no entry appears in the Register and no one, including a representative body, has been joined as a respondent to assert the existence of native title over the Land. Had a representative body in the region had some knowledge or information about potential native title holders for the Land, the Court can reasonably expect that a representative body for the region to have come forward and provided that information to the Court (Mace at ).
32 Further, previous native title claims advanced that have concerned the Land were brought on behalf of the Bidjara People, but, as I have noted above, the Lawton and Bidjara #3 claims were withdrawn and discontinued respectively. The Court dismissed Bidjara claim #5 on 18 May 2007, on the basis that the applicants had failed to comply with procedural directions. The Court dismissed the Bidjara #6 and #7 claims on the basis that Wyman No 2 had conclusively determined that the Bidjara People’s traditional system of law and custom had not continued in respect of the area the subject of those claims (see Wyman No 2 at - and ) with the consequence that the Bidjara #6 and #7 claims, which concerned the Land, were dismissed.
33 The additional relevance of the conclusions in Wyman No 2 and the Bidjara #6 and #7 claims to the present application is apparent from the following passages in Mace, to which the applicant drew attention in its submissions:
149 It is an agreed fact that the Mace land was not within the overlap area, so it is not in and of itself the subject of the findings in Wyman (No 2); otherwise, the land would already be subject to a negative determination. However, it is agreed between the parties that the Mace land was within the Bidjara #6 claim area.
150 Therefore, what is material for present purposes are the findings of the Court in Wyman (No 2) about lack of continuity, the fact that this lack of continuity was the basis for the negative determination, and that it was also the basis for the summary dismissal of the remainder of the Bidjara #6 proceeding (and the Bidjara #7 proceeding) as an abuse of process because (in effect) the Bidjara People could not overcome those findings even when different land and waters were involved.
151 A finding on a matter such as continuity of observance and adherence to traditional law and custom in the way rights and interests in land are created and passed on is a finding which, in most circumstances, will extend to subsequent claims by a claim group composed of essentially the same people. It is a finding which is not tied in any relevant sense to the particular land and waters involved, or to evidence about that land and waters. Rather, it is a finding about the lack of proof of a continued normative effect of the traditional law and custom which must, for the purposes of the NT Act, be what unites a group of people and provides the rules for the creation and acquisition of rights and interests in land and waters. This was the point made by Jagot and Mortimer JJ in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People  FCAFC 177 at , referring to Wyman (No 2), in the context of a differently based argument about abuse of process.
152 The previous Bidjara proceedings, and in particular the outcome in the Bidjara #6 claim, are of considerable persuasive weight in the Mace applicant’s case that no native title exists over the Mace land. There is no suggestion that any other group of people, other than the Bidjara People, claim to have native title rights and interests in the Mace land. Indeed, if that were to be suggested, it would be directly inconsistent with Ms Mailman’s evidence on this application, and with the position put on behalf of QSNTS, which was directed only at the asserted interests of the Bidjara People in the Mace land. Ms Mailman’s evidence, read with the previous Bidjara decisions, establishes, at the least, that the Bidjara People could have been considered the “right” people for the land covered by the Bidjara claims at sovereignty, or at effective sovereignty. However, 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 persuade the Court to make a negative determination in the overlap area.
34 It is important to emphasise that none of the above matters 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.
35 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 NT Act (cf Mace at ). 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.
36 In conclusion, I am satisfied that:
(a) the applicant holds a non-native title interest in the whole of the Land for the purposes of ss 61(1) and 253 of the NT Act;
(b) the notices required by s 66 of the NT Act have been given;
(c) there are no registered native title claims affecting the Land;
(d) those registered native title claims that have previously existed were brought on behalf of the Bidjara People and have been withdrawn, discontinued or dismissed;
(e) the Court has in Wyman No 2 found that the traditional system of law and custom of the Bidjara People has not continued. That finding led to the summary dismissal of the Bidjara #6 and #7 claims that covered the Land;
(f) the findings in Wyman No 2 also provide a sound foundation to consider that no other native title claim will be advanced in relation to the Land (Mace at  – ); and
(g) no other party has expressed an interest in claiming native title in relation to the Land.
37 The application is allowed.
38 The appropriate order is as follows:
Native title does not exist in relation to the land and waters described as Lot 1118 on Survey Plan 273891.
Dated: 30 May 2022