Federal Court of Australia

Stanbroke Pty Ltd v Queensland [2023] FCA 227

ORDERS

THE COURT DETERMINES THAT:

1.    Native title does not exist in relation to the land and waters described as Lot 5 on Survey Plan 287784 but excluding any land and waters subject to or within the external boundaries of:

(a)    the land the subject of the determination by this Court on 12 December 2011 in proceeding QUD 579 of 2005, William Doyle on behalf of the Kalkadoon People #4 v State of Queensland, as determined; and

(b)    the land accepted for registration by the National Native Title Tribunal on 15 September 1999 in proceeding QUD 6022 of 1999, Ada Walden & Ors on behalf of the Waanyi People v 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:

1    The applicant, Stanbroke Pty Ltd, seeks a determination that native title does not exist within an area of land located within Lot 5 on Survey Plan 287784 (Lot 5), but excluding any land and waters subject to or within the external boundaries of:

(a)    the land the subject of the determination by the Federal Court of Australia on 12 December 2011 in proceeding QUD 579 of 2005, William Doyle on behalf of the Kalkadoon People #4 v State of Queensland (Kalkadoon #4 claim); and

(b)    the land accepted for registration by the National Native Title Tribunal (Tribunal) on 15 September 1999 in proceeding QUD 6022 of 1999, Ada Walden & Ors on behalf of the Waanyi People v State of Queensland (Waanyi claim),

in the Local Government Regions of Burke Shire Council and Carpentaria Shire Council in the State of Queensland (Land).

2    The Land is located approximately 310 km northwest of Cloncurry in the State of Queensland.

3    The applicant is the registered lessee of Lot 5.

4    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.

5    The applicant relied on an affidavit of Mark Stewart Boge affirmed on 24 November 2022 in support of its application. Mr Boge is a solicitor with the firm Thynne & McCartney who represent the applicant in these proceedings.

Factual Background

6    In the period up to May 2020, Lot 5 was part of the pastoral lease known as Augustus Downs, described as Lot 4 in SP120452.

7    In October 1984, the applicant acquired Augustus Downs. At that time, Augustus Downs was subject to a 50 year lease commencing on 1 July 1975 and expiring on 30 June 2025.

8    In 2020, Augustus Downs was subdivided into two lots, Lots 4 and 5 in SP287784.

9    On 29 January 2021, the applicant made a non-claimant application for a determination of native title under s 61(1) of the NTA over the Land (Application).

10    On 6 June 2021, the applicant filed an amended Application which removed any lands and waters subject to the Kalkadoon #4 claim.

11    On 11 August 2021, public notification of the amended Application was made by the Tribunal. The notification period ended on 10 November 2021.

12    Searches conducted after the end of the notification period recorded no relevant entries over the Land on the Register of Native Title Claims (Register).

13    On 3 November 2021, Henry Morris Aplin filed a Form 5 application to become a party to the proceeding.

14    On 8 November 2021, Carpentaria Land Council Aboriginal Corporation, the representative body for the area, filed a Form 5 application to become a party to the proceeding.

15    On 28 February 2022, Carpentaria Land Council Aboriginal Corporation filed a Form 106 notifying the Court that they wished to cease to be a party to the proceeding.

16    On 14 June 2022, the applicant filed a further amended Application which excluded any lands and waters subject to the Waanyi claim.

17    On 11 July 2022, Mr Aplin filed a Form 106 notifying the Court that he wished to cease to be a party to the proceeding.

Statutory framework and relevant legal principles

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

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

20    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 the determination is sought".

21    Section 253 of the NTA provides that an "interest" in relation to land includes a legal or equitable interest in the land.

22    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.

23    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.

24    It is also necessary in a non-claimant application to have regard to ss 94A and 225 of the NTA:

(a)    s 94A provides that an order in which the 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 regarding whether or not native title exists in relation to a particular area of land and waters.

25    The applicant bears the onus of satisfying the 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.

26    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 the 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].

27    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].

28    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.

29    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.

30    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.

31    In Wagonga Local Aboriginal Land Council v Attorney General (NSW) [2020] FCA 1113, Jagot J at [10] summarised 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

32    I am satisfied that the formal notification requirements under the NTA have been complied with in this case.

33    On 2 February 2021, the applicant received a letter by email from the Tribunal confirming that a copy of the Application had been given to the Queensland State Government and the representative bodies for the Land pursuant to ss 66(2) and (2A) of the NTA.

34    On 10 March 2021, the Tribunal publicly notified the Application in the Courier Mail and the Koori Mail.

35    On 11 March 2021, the Tribunal publicly notified the Application in the North West Star (e-edition).

36    The notice specified a notification day of 24 March 2021 and identified the notification period as ending on 23 June 2021.

37    On 6 June 2021, the applicant filed an amended Form 2 excluding from the Application any lands and waters subject to the determination in the Kalkadoon #4 claim being an area where native title had been surrendered by the ‘Kalkadoon People in the Kalkadoon People, Stanbroke and State of Queensland Indigenous Land Use Agreement’ registered on 3 May 2012 (Kalkadoon Surrender ILUA).

38    On 28 July 2021, the Tribunal publicly notified the amended Application in the Courier Mail and the Koori Mail.

39    On 29 July 2021, the Tribunal publicly notified the amended Application in the North West Star (e-edition).

40    The notice specified a notification day of 11 August 2021 and identified the notification period as ending on 10 November 2021.

41    It was not necessary for the Native Title Registrar on behalf of the Tribunal to comply with the notification requirements stipulated in s 66 of the NTA because the further amended Application was not required to be given to the Native Title Registrar pursuant to s 63 of the NTA. Rather, the further amended Application was an amendment to the Application pursuant to s 64 of the NTA that reduced the area of the land and waters covered by the Application.

Previous native title applications in respect of Lot 5

42    On 10 May 2022, a search undertaken by the Tribunal of its databases identified the following overlapping applications that had been made seeking a determination of native title in respect of land within Lot 5:

(a)    Waanyi/Kalkadoon People (James Taylor) v State of Queensland (QUD 6154 of 1998) (Waanyi/Kalkadoon claim);

(b)    Waanyi #4 (Douglas Arthure Willetts) v State of Queensland (QUD 6176 of 1998) (Waanyi #4 claim);

(c)    Kalkadoon People #4 (Margaret Caulton) v State of Queensland (QUD 6193 of 1998) (the claim was listed twice – first, with its pre-combination Tribunal number QC2005/012 and then with its post-combination Tribunal number QC2010/004 (Kalkadoon People #4 claim);

(d)    Kalkadoon People #5 v State of Queensland (QUD 6011 of 1999) (Kalkadoon People #5 claim);

(e)    the Waanyi claim;

(f)    Kalkadoon People v State of Queensland (QUD 6031 of 1999) (Kalkadoon claim); and

(g)    the Kalkadoon #4 claim.

43    The applicant was a respondent to the Waanyi claim, the Kalkadoon claim and the Kalkadoon #4 claim.

44    Only two of the claims identified by the Tribunal overlapped the Land:

(a)    the Wannyi/Kalkadoon claim; and

(b)    the Waanyi #4 claim.

45    Neither claim entirely covers the Land and the claims do not cover identical areas of the Land.

46    The other five claims identified by the Tribunal only overlap areas of Lot 5 that have been excluded from the Land.

Previous native title applications overlapping the Land

The Waanyi/Kalkadoon claim

47    The Waanyi/Kalkadoon claim was made by persons claiming to hold native title who were described as "James Watts Taylor and all Waanyi and Kalkadoon People and those who are associated with the Dingo Aboriginal Traditional Law and Lodge." It was later stated that the claim was said to be "for the descendants for [sic] Toby Leichhardt son of the boss man King Jerry Leichhardt." Leichhardt Toby is listed as an apical ancestor in the determination in the Kalkadoon #4 claim but not in the determination for the Waanyi claim.

48    The Waanyi/Kalkadoon claim was filed on 23 October 1997. It was not accepted for registration following consideration of the application on 23 April 1999 under the Tribunal’s abbreviated procedure for the registration test. It covered an area of approximately 22,211 square kilometres. It was not notified in accordance with s 66 of the NTA.

49    The Waanyi/Kalkadoon claim was discontinued on 10 September 1999.

The Waanyi #4 claim

50    The Waanyi #4 claim was brought by Glen Jason Willetts, Robert Charles Willetts and Douglas Arthure Willetts. Each claimed to “have Native Title interests as a descendant of the Waanyi people through his mother (now deceased)".

51    The Waanyi #4 claim was filed on 12 March 1998. It did not undergo the registration test. It covered an area of approximately 28,481 square kilometres. It was not notified in accordance with s 66 of the NTA.

52    The Waanyi #4 claim was discontinued on 18 November 1999.

Previous native title applications overlapping with Lot 5 but not included in the further amended non­claimant application

53    The applicant has amended its non-claimant application to remove two areas from the application:

(a)    that part of Lot 5 that was subject to the determination in the Kalkadoon #4 claim; and

(b)    that part of Lot 5 that was subject to the Waanyi claim at the date it was registered.

54    These two areas adjoin each other but do not overlap.

The Kalkadoon #4 claim

55    The Kalkadoon #4 claim was an application seeking a further determination of native title for the Kalkadoon people.

56    The Kalkadoon #4 claim was filed on 16 April 1998. It was not accepted for registration following consideration of the application on 20 May 1999 under the Tribunal’s abbreviated procedure for the registration test. It covered an area of approximately 66,0009 square kilometres. It was not notified in accordance with s 66 of the NTA.

57    The Kalkadoon #4 claim was discontinued on 30 September 1999.

58    The Kalkadoon #4 claim covered:

(a)    that part of Lot 5 subject to the determination in the Kalkadoon #4 claim; and

(b)    the southern portion of that part of Lot 5 subject to the Waanyi claim at the date it was registered.

The Kalkadoon #5 claim

59    The Kalkadoon #5 claim was an application seeking a further determination of native title for the Kalkadoon people.

60    The Kalkadoon #5 claim was filed on 19 March 1999. It was one of the applications that was combined with another claim to become the Kalkadoon claim. It covered an area of approximately 66,009 square kilometres being the same area as covered by the Kalkadoon #4 claim.

61    The claim covered:

(a)    that part of Lot 5 subject to the determination in the Kalkadoon #4 claim; and

(b)    the southern portion of that part of Lot 5 subject to the Waanyi claim at the date it was registered.

The Waanyi claim

62    The Waanyi claim was an application seeking a determination of native title for the Waanyi people.

63    The Waanyi claim was filed on 30 August 1999. It was accepted for registration on 15 September 1999. It was notified in accordance with s 66 of the NTA between 15 November 2000 and 15 February 2001. It resulted in a consent determination of native title on 9 December 2019: Aplin v Queensland (No 3) [2010] FCA 1515.

64    The applicant did not agree to a consent determination in respect of that part of Lot 5 located within the claim area of the Waanyi claim.

65    On 23 July 2010, the Waanyi claim was amended in various ways. One of the amendments was to amend the claim boundary to remove that part of Lot 5 that was subject to the claim.

66    On 14 September 2010, the applicant was granted leave to cease to be a party to the Waanyi claim.

The Kalkadoon claim

67    The Kalkadoon claim was an application seeking a determination of native title for the Kalkadoon people.

68    The Kalkadoon claim was the combination of two applications on 29 October 1999: (a) Kalkadoon People (James Watts Taylor) v State of Queensland (QUD 6029 of 1998) and (b) the Kalkadoon People #5 claim. It contained two parts: (a) Part A being the land and waters covered by proceeding QUD 6029 of 1998 and (b) Part B being the land and waters covered by proceeding QUD 6011 of 1999. It was accepted for registration on 19 November 1999. It was amended on 20 March 2002 so as to remove any overall with the Waanyi claim.

69    The Kalkadoon claim was dismissed on 30 June 2006.

70    Mr Boge has been unable to ascertain when the Kalkadoon claim was notified in accordance with s 66 of the NTA, but believes it may have been sometime in 2001.

71    The land included in Part B of the Kalkadoon claim overlapped with:

(a)    that part of Lot 5 on SP287784 subject to the determination in the Kalkadoon #4 claim; and

(b)    when filed the southern portion of that part of Lot 5 on SP287784 subject to the Waanyi claim at the date it was registered.

The Kalkadoon #4 claim

72    The Kalkadoon #4 claim was an application seeking a further determination of native title for the Kalkadoon people.

73    The Kalkadoon #4 claim was filed on 21 December 2005. It was accepted for registration on 4 September 2006. It was notified in accordance with s 66 of the NTA between 28 March 2007 and 27 June 2007. It was combined with Doyle on behalf of the Kalkadoon People #5 v State of Queensland (QUD 15 of 2066) on 8 December 2010. It resulted in a consent determination of native title made on 12 December 2011: Doyle v Queensland (No 3) [2011] FCA 1466. The determination was conditional on the registration of a series of Indigenous Land Use Agreements.

74    This claim was case managed towards a trial set to commence on 28 February 2011.

75    The applicant's interests that were potentially affected by a determination of native title in this claim related to three pastoral leases - Augustus Downs, Fort Constantine and Kamilaroi. Fort Constantine and Kamilaroi are not the subject of the further amended non­claimant application and do not adjoin Augustus Downs.

76    Following a mediation, the applicant agreed to a consent determination of native title over that part of Lot 5 subject to the claim on the condition that the Kalkadoon People (being the Native Title Claim Group for proceeding QUD 579 of 2005) surrendered native title over that area. By operation of the Kalkadoon Surrender ILUA, the Kalkadoon People consented to the surrender of native title over that part of Lot 5 located within the determination area of the Kalkadoon #4 claim.

77    The surrender of native title occurred on 12 June 2012 being the date that the determination of native title in favour of the Kalkadoon People took effect. The Kalkadoon Surrender ILUA contains a statement that the surrender of native title is intended to extinguish any native title that may exist in the surrendered area.

Conclusion

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

79    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: 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.

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

81    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.

82    The only party to the proceeding, the State of Queensland, has notified this 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.

83    As explained above, Carpentaria Land Council Aboriginal Corporation and Henry Morris Aplin, were joined as respondent parties to the application but subsequently filed notices to withdraw as respondent parties.

84    Carpentaria Land Council Aboriginal Corporation, as the representative body for the area, could reasonably have been expected to provide any evidence or information to the Court about potential native title holders for the Land, has determined to cease to be a party to the proceeding.

85    Henry Morris Aplin, who identifies as a Waanyi man, withdrew as a respondent party on 11 July 2022.

86    There are no other applications seeking a determination with respect to native title over the Land. The two claimant applications that had previously overlapped the Land have both been discontinued.

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

88    While there have been previous assertions of native title over the Land, those applications have been discontinued. 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

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

Associate:

Dated:    16 March 2023