Federal Court of Australia

South Terrick Pty Ltd ATF the South Terrick Trust v State of Queensland [2023] FCA 646

ORDERS

THE COURT DECLARES AND ORDERS THAT:

1.    Native title does not exist in relation to the land and waters that is Lot 5102 on Crown Plan PH591 in the State of Queensland.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

COLLIER J

1    This is a non-claimant application brought pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the Native Title Act) by South Terrick Pty Ltd as trustee for the South Terrick Trust (South Terrick) in respect of land and waters described as lot 5102 Crown Plan PH591 in the State of Queensland (Title Reference 40057938) (the Land and Waters). The Land and Waters are located 72 km south of Blackall in the Blackall Tambo Local Government Area, and cover approximately 22,000 hectares. The area subject the application is commonly known as Mt Calder. South Terrick seeks a determination that native title does not exist in relation to the Land and Waters.

Background

2    The only parties to this application are South Terrick and the State of Queensland. The State does not oppose the application.

3    South Terrick has been the registered lessee of a pastoral lease over the Land and Waters since 12 December 2019. The lease is a rolling 30 year term lease which commenced on 1 June 2009 and is set to expire on 31 May 2039. On or about 24 March 2020 the applicant applied to convert the lease to freehold land. The applicant received a letter sent on behalf of the Department of Natural Resources Mines & Energy on 21 July 2020 regarding the application to convert the lease. A conditional offer of conversion was made on 1 September 2020 requiring, inter alia, that the applicant register an Indigenous Land Use Agreement (ILUA) or seek a determination in the Federal Court that native title does not exist in relation to the Land and Waters.

4    On 13 July 2022, the Native Title Tribunal notified the applicant’s application in accordance with s 66 of the Native Title Act. Queensland South Native Titles Services (QSNTS), the representative body for the area, has not filed a Form 5 application be a party of the non-claimant application. The advertisement period of three months passed on 12 October 2022. As at 19 October 2022 the State was the only other party to the proceedings.

5    There have been numerous native title claims between 15 January 1997 and 5 July 2016 that have overlapped with the area the subject of this proceeding. The following proceedings were discontinued, withdrawn or dismissed:

    Lawnton and Others on behalf of the Bidjara People and their Clan (Proceedings QC 1997/001) was withdrawn on 4 November 1997;

    Fraser and Others on behalf of the Bidjara People (No 3) v State of Queensland (Proceeding QUD6156/1998) was discontinued on 5 September 2008;

    Wyman and Others on behalf of the Bidjara People (No 6) v State of Queensland (Proceeding QUD216/2008) (Bidjara #6 claim) was filed on 23 July 2008 and (the part not including the Land) went to a contested hearing.

•    The contested hearing was dismissed in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229, where Jagot J found that the applicant could not prove the existence of Native Title in respect of the overlapped area.

•    A further negative determination of Bidjara #6 claim was made in Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8. This decision was subject to appeal and was dismissed by the Full Court in Wyman on behalf of the Bidjara People v State of Queensland [2015] 234 FCR 464; [2015] FCAFC 108.

•    The remainder of the Bidjara #6 claim was summarily dismissed by Jagot J on 5 July 2016 in Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777.

Consideration

6    Section 13(1) of the Native Title Act permits an application to be made to this Court for a determination of native title in relation to an area for which there is no approved determination of native title. No such determination has been made over the Land.

7    Section 253 of the Native Title Act defines “non-claimant application” as meaning a native title determination application that is not a claimant application. A “claimant application” is defined by s 253 as:

…a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

8    Section 61(1) of the Native Title Act defines applications which may be made under Part 3 Div 1 of the Native Title Act. In relation to applications referred to in s 13(1) of the Native Title Act, for a determination of native title in relation to an area for which there is no approved determination of native title, persons who may make such an application include:

(2) 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;

9    I note evidence of Mr David Weir, a director of South Terrick, regarding the pastoral lease over the Land and Waters owned by South Terrick. I am satisfied that South Terrick has a non-native title interest in the Land and Waters.

10    Plainly the application before the Court is a non-claimant application within the meaning of ss 61 and 253 of the Native Title Act.

11    The State has filed a notice under s 86G of the Native Title Act. The section 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.

12    The only active respondent, 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.

13    It follows that the application is unopposed within the meaning of s 86G(1)(a) of the Native Title Act.

14    The Court has power to make an order in the terms sought by the applicant by way of a negative determination without holding a hearing, provided the additional terms of s 86G are satisfied, namely:

    the period specified in the notice given under s 66 of the Native Title Act has ended (s 86G(1));

    the Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court (s 86G(1)(b)); and

    it appears to the Court to be appropriate to make an order without holding a hearing (s 86G(1)).

15    The note to s 86G(1) relating to the requirement that the Court’s order complies with s 94A is referable to the matters mentioned in s 225 of the Native Title Act. Materially, s 225 defines a “determination of native title” as a determination whether or not native title exists in relation to a particular area of land or waters.

16    In Mace and Others v Queensland (2019) 375 ALR 717; [2019] FCAFC 233 the Full Court held at [44]:

….The question for the Court remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area?

17    In Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 Jagot J (who was a member of the Full Court in Mace) explained the decision in Mace in the following terms:

10.     The Full Court of the Federal Court recently considered non-claimant applications under the NTA in Mace v Queensland [2019] FCAFC 233; (2019) 375 ALR 717 (Mace). The following propositions are established in Mace, including principles established by an earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi):

(1)    The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].

(2)    The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42].

(3)    Whether there is a contradictor to a non-claimant application 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: [44].

(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].

11.     The non-claimant application in the present case is to be decided consistently with these propositions. Most importantly, the case is to be decided on the whole of the evidence which has been adduced. The question is whether, having regard to all of the evidence, WLALC has proved on the balance of probabilities that there is no native title in the land…

18    I respectfully adopt this summary by Jagot J.

19    Turning now to the present application before the Court, I note the following.

20    First, in respect of the Land and Waters there is no approved determination of native title. It is also not in dispute that the notification period ended on 12 October 2022, no relevant entries over the Land and Waters have been recorded in the Register of any native title claims, no party other than the State appeared as a respondent, and the relevant representative has made no submissions and filed no evidence referable to any assertion of native title.

21    Second, the State notified the Court that it did not oppose an order in, or consistent with, the terms sought by the applicants.

22    Third, QSNTS were the legal representatives in three previous applications made by the Bidjara Peoples, and were also actively engaged in the matter of Mace. In such circumstances it would be reasonable to expect that there would have been some level of active, and proactive, engagement by QSNTS with this non-claimant application. QSNTS has elected not to engage in this proceeding. No other named respondent opposes the order sought.

23     Fourth, having regard to the evidence before the Court, including the history of litigation referable to the Land and Waters, and the findings in a series of decisions of the Federal Court dismissing the provenance of overlapping claims, I am satisfied that the applicant has proved on the balance of probabilities that there is no native title in the Land and Waters.

24    It follows that the Court has power to make the negative determination sought in this non-claimant application.

25    Finally, in circumstances where it appears that all relevant parties have been informed of the present application, where the applicant has otherwise substantiated its claim that a negative determination should be made, and where there is no active opposition to that claim, it is appropriate that the Court should make the order sought.

Associate:

Dated:    15 June 2023