Federal Court of Australia

Appleton v State of Queensland [2023] FCA 45

ORDERS

THE COURT ORDERS THAT:

1.    There is no native title in relation to the land and waters that are described as Lot 4724 on Survey Plan 273900 located in the Barcaldine Regional Council in the State of Queensland.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

1    This is an application made pursuant to s 13(1) of the Native Title Act 1992 (Cth) (NTA) for determination of native title under s 61(1) of the NTA filed by the applicants, William Dale Appleton, Kristine Margaret Appleton, Richard Frederick John Appleton, Anna Jacqueline Appleton, Loid Stephen Giles Appleton and Zaviera Louise Appleton (Applicants).

2    The Applicants seek a determination that native title does not exist in relation to Lot 4724 on Survey Plan 273900, located in the Barcaldine Regional Council area in the State of Queensland (Land).

3    The State of Queensland (Respondent) is the only respondent to the application. No appearance has been lodged by any other party. The Respondent filed a notice under s 86G of the NTA and does not oppose an order in, or consistent with, the terms as sought by the Applicants.

4    Both the Applicants and the Respondent filed helpful written submissions. The evidence relied upon in support of the application is an affidavit of Mark Stewart Boge filed 19 September 2022 (Aff-MSB).

5    For the reasons given below, I consider it appropriate to determine the matter without a hearing and for the application to be allowed.

Background

6    The Applicants are the registered lessees of the Land which is subject to a rolling term lease within the meaning of s 164 of the Land Act 1994 (Cth). The lease was initially granted for a term of 30 years commencing on 1 July 1976, expiring on 30 June 2006. It was extended to 30 June 2056.

7    On 10 May 2021, the Applicants applied to the Queensland Department of Resources (Department) to convert the lease over the Land to freehold title. On 15 October 2021, the Department provided the Applicants with an Offer to convert a lease under Land Act 1994 (Cth) (Aff-MSB, Annexure MSB-1). A condition of that offer requires the Applicants to address native title by either filing a non-claimant application with this Court which is successful or, by successful negotiation and registration of an Indigenous Land Use Agreement. On 4 February 2022, the Applicants filed a non-claimant application for determination by this Court under s 61(1) of the NTA.

legislative framework

8    Section 61(1) of the NTA sets out applications that may be made, and the persons who may make them. Item (2) of the section 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.

9    Section 253 of the NTA 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”.

10    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 NTA 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. 

11    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.

12    The principles applicable to the consideration of a non-claimant application under s 61 of the NTA were addressed in Mace v State of Queensland [2019] FCAFC 233; 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; 181 FCR 320.

13    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]. It is unnecessary to repeat that summary here.

14    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. 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

15    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). Section 13(1)(a) of the NTA 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 as to whether or not native title exists in relation to a particular area (NTA s 225) and includes a negative determination of title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466. 

16    The non-claimant application was filed pursuant to s 13(1)(a) and s 61(1) of the NTA. Subsection 66(3) of the NTA requires the Native Title Registrar to give notice containing details of the application to prescribed persons and to notify the public of the application. The contents of the notice must comply with s 66(10) of the NTA, which provides:

(10)      A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:

(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.

17    It is not in dispute that notice was given of the application as required by s 66(3) of the NTA. There is also no dispute between the parties that the prescribed notification period under s 66(10)(c) came to an end on 17 August 2022, and that no Form 5 party applications have been filed in the proceeding (Aff-MSB [14] and Annexure MSB-4). Therefore, there are no persons who oppose the non-party application and the only Respondent has notified the Court in writing that it does not oppose an order in, or consistent with, the terms sought by the Applicant (ss 86G(1) and 86G(2) NTA). Further, on 25 August 2022, the National Native Title Tribunal (NNTT) confirmed that there were no relevant entries on the Register of Native Title Claims with regard to the Land (Aff-MSB at [15] and Annexure ‘MSB-5’).

18    The making of the orders is otherwise within the power of the Court because they involve the making of a determination of native title and otherwise comply with ss 94A and 225 of the NTA (s 81 and 86G(1)(b)). 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 ORDERS SOUGHT

19    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).  

20    In this case, the uncontested evidence before the Court is that searches conducted in accordance with s 66 establish there is no previous determination of native title in the Land and that there is no current application in relation to the Land nor is there any current application in relation to the Land.

21    The evidence also discloses that the representative body for the area covered by the non-claimant application, being QSNTS, were notified of the non-claimant application by the NNTT (Aff-MSB, Annexure MSB-3). As noted by Burley J in James Speed Company Pty Ltd v State of Queensland [2022] FCA 626 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 [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]).

22    QSNTS did not seek to intervene in or be joined to this proceeding on behalf of a potential native title claimant.

23    Three previous native title determination applications on behalf of the Bidjara People overlapped the Land in its entirety. Each application has either been withdrawn, discontinued or dismissed:

(a)    Lawton and others on behalf of the Bidjara People and their clan groups (QC1997/001) which was filed on 15 January 1997 and withdrawn on 4 November 1997,

(b)    Fraser and others on behalf of the Bidjara People (No 3) v State of Queensland (QUD6156/1998) which was filed on 28 October 1997 and discontinued on 5 September 2008, and

(c)    Wyman and others on behalf of the Bidjara People (No 6) v State of Queensland (QUD216/2008) which was filed on 23 July 2008 and summarily dismissed by Jagot J: Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777.

24    Consistent with the reasoning in those decision, and in circumstances where no persons have sought to be heard on this application, I am satisfied that there is no evidence of any persons maintaining any native title interest in the Land. 

25    In the circumstances, I am satisfied that

(a)    the Applicant holds a non-native title interest in the whole of the Land;

(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 have been withdrawn, discontinued or dismissed;

(e)    no other party has expressed an interest in claiming native title in relation to the Land.

26    Accordingly, the applicants have discharged their onus of establishing, on the balance of probabilities, that native title does not exist over the Land. 

Conclusion

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

Associate:

Dated:    2 February 2023

SCHEDULE OF PARTIES