Federal Court of Australia

Magowra Pastoral Company Pty Ltd v Queensland [2023] FCA 226

ORDERS

THE COURT DETERMINES THAT:

1.    There is no native title in relation to the land that is described as Lot 1 on Crown Plan CUE95 (Tenure Reference PH 37/5434) in the Local Government Region of Central Highlands 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

HALLEY J:

Introduction

1    The applicant, Magowra Pastoral Company Pty Ltd, seeks a determination that native title does not exist within Lot 1 on Crown Plan CUE95 (Tenure Reference PH 37/5434) located in the Local Government Region of Central Highlands Regional Council in the State of Queensland (Land).

2    The Land is located approximately 37 km southeast of Rolleston in the State of Queensland.

3    The Land is subject to a rolling term lease under s 164 of the Land Act 1994 (Qld).

4    The applicant is the registered lessee of the Land.

5    The only respondent, the State of Queensland, has filed a notice under s 86G of the Native Title Act 1993 (Cth) (NTA) confirming that it does not oppose an order in, or consistent with, the terms sought by the applicant.

6    The applicant relied on the following affidavits in support of its application:

(a)    an affidavit of Douglas Godfrey Logan, the sole director of the applicant, affirmed on 1 August 2022; and

(b)    an affidavit of Mark Stewart Boge, the solicitor for the applicant, affirmed on 11 August 2022.

7    The State of Queensland relied on an affidavit of Georgia-May Katherine Rashford, a lawyer in the Office of the Queensland Crown Solicitor, sworn on 26 September 2022, in support of its submissions to the Court.

Factual Background

8    On 26 November 2021, the applicant made a non-claimant application for a determination of native title in relation to the Land under s 61(1) of the NTA (Application).

9    There are no other current applications seeking a determination of native title in relation to the Land.

10    The Land is partly covered by an Indigenous Land Use Agreement known as the ‘Santos Petronas Murribinbi GLNG ILUA’ (ILUA). The applicant for the ILUA was Santos GLNG Pty Ltd (Santos). This ILUA was registered on 5 September 2011.

11    There is presently no approved determination of native title in relation to the Land within the meaning of s 13 of the NTA.

Statutory framework and relevant legal principles

12    Section 13(1) of the NTA permits an application to be made to the Court for a determination of native title in relation to an area for which there is no other approved determination of native title.

13    Section 81 of the NTA provides that this Court has jurisdiction to hear and determine applications that relate to native title.

14    Section 61(1) of the NTA stipulates who may make such an application for an approved determination. Relevantly, this includes a person who holds a non-native title interest in relation to the whole of the area in relation to which a determination is sought.

15    Section 253 of the NTA defines an "interest" in relation to land as including a legal or equitable interest in the land.

16    Where a non-claimant application under s 61(1) of the NTA is unopposed, s 86G(1) of the NTA empowers this Court to make a determination of native title without holding a hearing provided that:

(a)    the determination occurs at the end of the period specified in the notice given under s 66 of the NTA;

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

(c)    it appears to this Court that it is appropriate to make such an order.

17    It remains the case, however, that the same kind of matters that need to be established by an applicant in a contested application must be established in an application to which s 86G of the NTA applies.

18    It is also necessary in considering a non-claimant application under s 61(1) of the NTA to have regard to ss 94A and 225 of the NTA:

(a)    s 94A provides that an order in which this Court makes a determination of native title must set out the details of the matters mentioned in s 225; and

(b)    s 225 defines a determination of native title as a determination of whether or not native title exists in relation to a particular area of land or waters and the matters which to be specified if there is a determination that native title exists in relation to a particular area.

19    The applicant bears the onus of satisfying this Court, on the balance of probabilities, that native title does not exist over the area in respect of which the determination is sought: Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) (2008) 181 FCR 300; [2008] FCA 1929 at [88] (Bennett J), upheld on appeal in Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3.

20    The Full Court of this Court (Jagot, Griffiths and Mortimer JJ) in Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 233 confirmed that whether a non-claimant application is opposed or unopposed, the question for this Court remains the same, namely, has the applicant discharged its burden of proof that no native title exists in the claim area: Mace at [44].

21    A non-claimant application does not, however, 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: Mace at [55].

22    Both claimant and non-claimant applications, as defined in s 253 of the NTA, must be provided to the Native Title Registrar who is required to undertake the notification process in accordance with s 66 of the NTA: Mace at [35]-[37]. The Native Title Registrar must provide a copy of the application to the relevant State Minister: s 66(2) of the NTA, and to the appropriate representative bodies: s 66(2A) of the NTA. The Native Title Registrar is also required to give notice to persons or bodies specified in s 66(3)(a) of the NTA and to notify the public: s 66(3)(d) of the NTA.

23    Pursuant to s 66(10)(c) of the NTA, a notice under s 66(3)(a) or (d) must include a statement to the effect that, in relation to a non-claimant application, "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": s 66(8) of the NTA, or seek leave from the Court to become a party. Once that period has ended, the notification requirement is satisfied.

24    The Native Title (Notices) Determination 2011 (No 1) (Cth) is also relevant. Section 6 provides that a notice under s 66(3) of the NTA must be published by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates, or, if the area is an offshore place, the geographical area closest to it that is an onshore place and in a relevant special-interest publication.

25    In Wagonga Local Aboriginal Land Council v Attorney General (NSW) [2020] FCA 1113, Jagot J summarised at [10] the principles derived from Mace and Worimi in the following terms:

…

(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].

Consideration

Formal notification requirements

26    On 30 November 2021, the National Native Title Tribunal (Tribunal) confirmed in a letter to the applicant’s solicitor that pursuant to ss 66(2) and (2A) of the NTA, a copy of the Application had been given to the government of the State of Queensland and the representative body for the area covered by the Application, being the Queensland South Native Title Services (QSNTS).

27    On 20 December 2021, the State of Queensland filed a notice of address for service.

28    On 2 February 2022, the Tribunal confirmed in a letter to the applicant’s solicitor that it had made the notifications in accordance with s 66(3)(a) of the NTA and identified the specific persons and bodies it had notified, including the Principal Legal Officer of QSNTS and Santos, of the details of the Application.

29    Neither QSNTS nor Santos has filed an application to become a party to the Application.

30    On 9 February 2022 the Tribunal publicly notified the Application in the Koori Mail and Central Queensland Today. The notice specified a notification day of 23 February 2022 and identified the notification period as ending on 23 May 2022.

31    At the conclusion of the notification period, the State of Queensland remained the only respondent to the matter.

32    On 2 June 2022, a search of the Register of Native Title Claims (the Register) conducted by the Tribunal found no relevant entries within the external boundary of the Application.

Previous Native Title applications covering the Land

33    The Land has previously been covered in whole or in part by ten native title determination applications:

(a)    Wadja People (Rachel Obah) v State of Queensland and Others (QUD 6110 of 1998) (Wadja claim) and subsequently Harriet Vea Vea and Others on behalf of the Wadja People v State of Queensland (QUD 28 of 2019, previously QUD 422 of 2012) (Wadja #2 claim);

(b)    Margaret May Lawton and Others on behalf of the Garingbal and Kara Kara People v State of Queensland and Others (QUD 6233 of 1998) (Garingbal & Kara Kara claim);

(c)    Patricia Fraser and Others on behalf of the Bidjara People #3 v State of Queensland and Others (QUD 6156 of 1998) (Bidjara #3 claim);

(d)    Richard Doyle and Others on behalf of the Iman People #2 v State of Queensland and Others (QUD 6162 of 1998) (Iman #2 claim);

(e)    Ghungalu People #2 (Lindsay Kemp) v State of Queensland (QUD 6232 of 1998) (Ghungalu #2 claim);

(f)    Elizabeth Jacobs and Others on behalf of the Kangoulu People v State of Queensland and Others (QUD 6195 of 1998) (Kanguolu claim);

(g)    Lynette Anderson and Others on behalf of the East Comet/West Dawson People v State of Queensland (QUD 79 of 2005) (East Comet/West Dawson claim);

(h)    Kevin Albury and Others on behalf of the Karingbal People #2 v State of Queensland and Others (QUD 23 of 2006) (Karingbal #2 claim);

(i)    Brendan Wyman and Others on behalf of the Bidjara People #6 v State of Queensland and Others (QUD 216 of 2008) (Bidjara #6 claim); and

(j)    Donna Aston and Others on behalf of the Kanolu People #1 v State of Queensland (QUD 418 of 2012) (Kanolu #1 claim).

34    Neither the Murribinbi Native Title Group nor the Murribinbi People has filed an application to become a party to the Application in this case. The Murribinbi Native Title Group appears to include members who are one or more of the parties that filed the native title determination applications identified at [33] above.

Wadja and Wadja #2 claims

35    The Wadja claim was filed on 14 November 1996. It was not accepted for registration following consideration of the application on 23 September 1999 under the Tribunal's abbreviated procedure for the registration test. It covered an area of approximately 12,622 square kilometres and overlapped the Land by 95.55%. It was not notified in accordance with s 66 of the NTA and was discontinued on 22 November 2000.

36    The Wadja #2 claim was filed on 22 August 2012. It covered an area of approximately 6050 square kilometres representing approximately half of the area covered by the Wadja claim. It was accepted for registration on 19 December 2012 and notified in accordance with s 66 of the NTA between 30 January 2013 and 29 April 2013. It is currently being case managed to a hearing on a separate question.

37    The Wadja #2 claim adjoins the Land on its eastern boundary but does not overlap the Land.

Garingbal & Kara Kara claim

38    The Garingbal & Kara Kara claim was filed on 5 August 1997. It was not accepted for registration following consideration of the application on 21 February 2000 under the Tribunal's abbreviated procedure for the registration test. It covered an area of approximately 16,771 square kilometres and overlapped the Land by 99.98%. It was not notified in accordance with s 66 of the NTA.

39    The Garingbal & Kara Kara claim was dismissed on 28 May 2007 following a failure by the claimant to comply with an order of this Court made on 27 April 2007 requiring the filing of a work plan and an affidavit.

Bidjara #3 claim

40    The Bidjara #3 claim was filed on 28 October 1997. It was recorded on the Register from 28 October 1997 to 17 March 2000 and from 21 September 2000 to 10 September 2008. It covered an area of approximately 92,500 square kilometres and overlapped the Land by 12.78%. It was notified in accordance with s 66 of the NTA between 6 June 2001 and 5 September 2001.

41    The Bidjara #3 claim was discontinued on 5 September 2008.

Iman #2 claim

42    The Iman #2 claim was filed on 28 October 1997. It was recorded on the Register from 30 October 1997 to 28 July 1999 and from 26 July 2002 to 7 September 2017. It was notified in accordance with s 66 of the NTA between 4 September 2002 and 3 December 2002.

43    When filed on 28 October 1997, the Iman #2 claim covered an area of approximately 98,800 square kilometres and overlapped 100% of the Land.

44    On 28 July 1999, the application was not accepted for registration as it was considered not to comply with ss 190C(2) and (4) of the NTA.

45    Between the application of the registration test in 1999 and a subsequent application of the registration test on 26 July 2002, the Iman #2 claim was amended in several respects. One of the amendments was to the claim boundary so that the claim area was reduced to approximately 14,000 square kilometres.

46    The Iman #2 claim ultimately resulted in a determination of native title on 23 June 2016 in Doyle v Queensland [2016] FCA 743. However, as a result of the amendment to the claim area no part of the Land remained within the claim area of the Iman #2 claim.

Ghungalu #2 claim

47    The Ghungalu #2 claim was filed on 15 April 1998. It only overlapped the Land by 0.03%. It was recorded on the Register from 15 April 1998 to 12 May 1999. On 14 April 1999, it was combined with Margaret Kemp & Orson behalf of the Ghungalu People #1 v State of Queensland (QUD 6226 of 1998) and Ghungalu People #3 (Lindsay Kemp) v State of Queensland (QUD 6231 of 1998) (Combined Ghungalu claim).

48    The Combined Ghungalu claim was recorded on the Register from 6 May 1999 to 1 September 2009.

49    The Combined Ghungalu claim was dismissed on 1 September 2009 following a failure by the Ghungalu applicant to comply with an order of this Court made on 12 June 2009 requiring the provision of particulars of the pre-sovereignty society and any supporting anthropological and other evidence supporting the claim.

50    The Land does not appear in the list of lots that are specified as being included in the claim area for the Combined Ghungalu #2 claim.

The Kangoulu claim

51    The application seeking a determination of native title was filed on 11 May 1998. It overlapped the Land by 4.45%. It was recorded on the Register from 11 May 1998 to 1 September 2009. It was notified in accordance with s 66 of the NTA between 31 October 2001 and 30 January 2002.

52    The Kangoulo claim was dismissed on 1 September 2009 following failure by the Kangoulu applicant to comply with an order of this Court made on 12 June 2009 requiring the provision of particulars of the pre-sovereignty society and any supporting anthropological and other evidence supporting the claim.

53    As at the date of the registration test decision on 7 September 2000, the claim boundary of the Kangoulu claim had been amended to remove overlaps with the Garingbal & Kara Kara claim, the Bidjara #3 claim and Lillian Harrison & Ors on behalf of the Kangoulu People #2 and State of Queensland (QUD 6007 of 1999). As a result of the claim boundary amendments, no part of the Land remained within the claim area of the Kangoulu claim at the time that it was notified.

East Comet/West Dawson claim

54    The East Comet/West Dawson claim was filed on 18 March 2005. It was not accepted for registration on both 15 December 2005 and 19 March 2008. It covered an area of approximately 22,415 square kilometres and overlapped the Land by only 0.02%. It was not notified in accordance with s 66 of the NTA. The claim area covered the same area as the Combined Ghungalu claim and the eastern part of the Kangoulu claim.

55    The East Comet/West Dawson claim was discontinued on 23 October 2008.

Karingbal #2 and Bidjara #6 claims

56    The Karingbal #2 claim application was filed on 20 January 2006. It was recorded on the Register from 24 March 2006 to 14 March 2014. It covered an area of approximately 7,094 square kilometres and overlapped the Land by 2.58%. It was notified in accordance with s 66 of the NTA in 2006.

57    The Bidjara #6 claim was filed on 23 July 2008. It was recorded on the Register from 12 September 2008 to 6 July 2016. It covered an area of approximately 108,544 square kilometres. It was notified in accordance with s 66 of the NTA between 19 November 2008 and 18 February 2009.

58    Part of the area covered by the Bidjara #6 claim overlapped with an area covered by four other native title claims brought on behalf of the Karingbal People and the Brown River People (overlap area), these being:

(a)    the Karingbal #2 claim;

(b)    Charles Stapleton and Others on behalf of the Brown River People v State of Queensland and Others (QUD 245 of 2011);

(c)    Charles Stapleton and Others on behalf of the Brown River People #2 v State of Queensland and Others (QUD 301 of 2012); and

(d)    Kevin Albury and Others on Behalf of the Karingbal People #3 v State of Queensland and Others (QUD 310 of 2012).

59    The overlap area included the Arcadia Valley, Carnarvon Gorge and parts of Carnarvon National Park.

60    On 7 May 2013, Jagot J made orders that certain questions be decided separately from and before all other questions in the Bidjara People #6 claim and the overlap claims. The separate questions concerned the existence of native title, but for extinguishment, in the overlap area.

61    On 6 December 2013, Jagot J found that neither the Bidjara applicant nor any of the other applicants had proved the existence of native title in respect of the overlap area because the Bidjara normative system of traditional law and custom had not continued: Wyman v Queensland (No 2) [2013] FCA 1229.

62    On 21 February 2014, Jagot J made a determination that native title did not exist in relation to the overlap area: Wyman v Queensland (No 3) [2014] FCA 8; Wyman v Queensland (No 4) [2014] FCA 93. The overlap area adjoins the Land on its western boundary.

63    On 13 August 2015, the Full Court of this Court dismissed appeals brought on behalf of the Bidjara People and the Brown River People from the orders made by Jagot J: Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108 (North, Barker and White JJ).

64    On 16 December 2015, the State of Queensland filed an interlocutory application in the Bidjara #6 claim seeking orders for summary judgment or, alternatively, that the proceedings be summarily dismissed.

65    On 5 July 2016, Jagot J ordered that the Bidjara #6 claim be summarily dismissed as an abuse of process: Wyman v Queensland [2016] FCA 777.

66    On 12 April 2017, Reeves J dismissed an application for leave to appeal the Bidjara summary dismissal decision: Waterton v Queensland [2017] FCA 633.

Kanolu #1 claim

67    The Kanolu #1 claim was filed on 23 August 2012. It overlapped 99.71% of the Land. It was recorded on the Register from 19 October 2012 to 8 July 2014. It was notified in accordance with s 66 of the NTA between 30 January 2013 and 29 April 2013.

68    On 17 June 2014, the applicant in the Kanolu #1 claim was granted leave to discontinue the proceeding following her failure to comply with an order requiring her to file and serve her connection material on or before 30 May 2014.

ILUA

69    The Tribunal's Register of Indigenous Land Use Agreements describes the native title group to the ILUA as the Murribinbi Native Title Group and the ILUA as an Area Agreement.

70    As submitted by both the applicant and the State of Queensland, the Murribinbi Native Title Group comprises members of separate native title applications over the Land addressed above at [35] to [37] (Wadja claim), [47] to [50] (the Ghungalu #2 claim), [51] to [53] (the Kangoulu claim) and [54] to [55] (the East Comet/West Dawson claim).

71    As submitted by the applicant, the ILUA is not an agreement that native title exists and is not an agreement that extends to all parties with an interest in the Land. In particular, it does not extend to the applicant or the State of Queensland. Nor, has the native title group that is identified in the ILUA, the “Murribinbi Native Title Group”, ever filed an application seeking a determination of native title over the Land.

72    A native title group that is a party to an Area Agreement may comprise persons who merely claim to hold native title in respect of that area: Fesl v Delegate of Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469 at [58] (Logan J).

73    The solicitor for the applicant has been unable to locate any reference to the Murribinbi Native Title Group in searches of the Tribunal's registers apart from in the ILUA. It is significant that no Form 5 application has been received from the Murribinbi Native Title Group and no discrete claim has been filed on behalf of the Murribinbi people.

Conclusion

74    Having regard to the evidence, submissions and relevant principles, I am satisfied that on the balance of probabilities, no native title claims exist over the Land and that the orders sought by the applicant are within this Court’s power. There are no factors which have emerged from the evidence that would make it otherwise inappropriate to make a determination that no native title exists over the Land.

75    The making of the orders is within the jurisdiction of this Court because it involves the making of a determination of native title and otherwise complies with ss 94A and 225 of the NTA: see ss 81 and 86G(1)(b) of the NTA. This Court has the power to hear and determine the Application, which was made under Part 3 of the NTA, in relation to an area for which there is no approved determination of native title: ss 13(1)(a) and 81 of the NTA.

76    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 NTA.

77    The notification period under s 66 of the NTA in relation to the Application has ended: s 86G(1) of the NTA.

78    I am satisfied that the Application was publicly notified and that notice was also given to the relevant representative body as required by s 66 of the NTA.

79    The only party to the proceeding, the State of Queensland, 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 (2) of the NTA.

80    The relevant representative body, the QSNTS has been notified of the proceeding but has not provided any evidence or information to the Court concerning any potential native title holders for the Land.

81    There are no other applications seeking a determination with respect to native title over the Land.

82    While there have been previous assertions of native title over the Land, those applications have been withdrawn, discontinued or dismissed. Although it might be thought from these previous assertions that there may be a potential for the assertion of native title over the Land, there is no evidence of "an assertion of native title in the land and waters the subject of the non-claimant application which is objectively arguable".

Disposition

83    A determination is to be made that there is no native title in relation to the Land.

Associate:

Dated:    16 March 2023