Federal Court of Australia

Arnaboldi v State of Queensland [2023] FCA 788

ORDERS

THE COURT DETERMINES AND DECLARES THAT:

1.    Native title does not exist in relation to the land and waters described in Tenure Reference PH 2/4201 located in the Barcaldine local government area in the State of Queensland comprised of the following lots described in Title Reference 17663163:

(a)    Lot 26 on Crown Plan MX3;

(b)    Lots 17, 18 and 19 on Crown Plan EV19; and

(c)    Lot 2 on Crown Plan CNA21.

THE COURT ORDERS THAT:

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

SARAH C DERRINGTON J:

Introduction

1    On 14 April 2023, the applicant, Mr Gilbert Dean Arnaboldi, filed a non-claimant application pursuant to s 61(1) of the Native Title Act 1993 (Cth) (NTA) seeking a determination pursuant to s 13(1) of the NTA that native title does not exist over Tenure Reference PH2/4201 being the land described as Title Reference 17663163 (Land) comprising:

(1)    Lot 26 on Crown Plan MX3;

(2)    Lots 17, 18 and 19 on Crown Plan EV19; and

(3)    Lot 2 on Crown Plan CNA21.

2    The only respondent to the application is the State of Queensland (State). No appearance has been lodged by any other party following the closure of the notification period.

3    The State has filed a notice pursuant to s 86G(2) of the NTA stating that it does not oppose the orders sought in the application.

4    Both Mr Arnaboldi and the State filed helpful written submissions. The evidence relied upon by Mr Arnaboldi in support of the application is an affidavit of Gilbert Dean Arnaboldi filed 15 March 2023 (Aff-GDA) and two affidavits of Ms Tessa Marie Norman filed 15 March 2023 (First Aff-TN) and 17 March 2023 (Second Aff-TN). On 25 May 2023 and 1 June 2023, the State and Mr Arnaboldi respectively agreed the matter should be determined on the papers without the need for an oral hearing in accordance with s 86G(1) of the NTA. However, as will be explained, I ultimately determined that the application should be determined in open court.

Whether a hearing is required

5    During the course of preparing these reasons, an issue arose as to whether the Court had the power to determine the application on the papers without the need for a hearing. Section 17(1) of the Federal Court of Australia Act 1976 (Cth) provides that “[e]xcept where, as authorized by this Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.”

6    It is often the case that the determination of non-claimant applications of the present kind is done on the papers pursuant to s 86G of the NTA. That is the provision relied upon in the present case, there being no other provision identified which otherwise authorises such applications to be dealt with on the papers and without a hearing. Section 86G of the NTA relevantly provides as follows:

86G    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.

…

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.

7    As appears from sub-s (1)(a), one of the preconditions to the Court’s power to determine the matter on the papers depends upon the application being unopposed within the meaning of sub-s (2). By sub-s (2), an application is relevantly unopposed if “each other party” notifies the Federal Court as such in writing.

8    In the present proceeding, the State has entered an appearance and, as mentioned, has provided a notice in accordance with s 86G(2). The issue that arose in the course of preparing these reasons is whether the State is a proper party to these proceedings or, alternatively, whether the State is the relevant party whose s 86G(2) notice is required such as to make the application unopposed within the meaning of that section.

9    The issue arises by reason of s 84 of the NTA. Relevantly, sub-s (1) provides that s 84 applies to proceedings in relation to applications to which s 61 applies. That is the present proceeding. Section 84(4) in turn provides as follows:

(4)    If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.

10    Although there are numerous authorities that assert or assume that s 84(4) includes the State qua State (as to which see, eg, Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 at [2] per Jessup J, Little on behalf of the Djaku:nde People v State of Queensland [2015] FCA 287 at [8] per Logan J), I was unable to discern how that understanding could be consistent with the declaratory language of s 84(4) (“the State Minister … is a party to the proceedings”: see Saunders on behalf of the Bigambul People v State of Queensland [2020] FCA 563 at [18] per Rangiah J) and the definition of State Minister as provided in s 253 of the NTA:

State Minister, in relation to a State, means:

(a)    if there is no nomination under paragraph (b)—the Premier of the State; or

(b)    a Minister of the Crown of the State nominated in writing given to the Commonwealth Minister by the Premier for the purposes of this definition.

11    It seems that the usual practice in Queensland, and in some other states too, is that the State enters an appearance. That is not the practise in New South Wales; there, the current State Minister appears to be the Attorney-General (see, eg, West Wyalong Local Aboriginal Land Council v Attorney-General (NSW) [2021] FCA 1116 at [10] per Stewart J) and previously it was the Minister for Lands (see, eg, Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2008] FCA 1929; 181 FCR 300 at [16] per Bennett J). But, prima facie, it seems to me that the fact that the State has entered an appearance does not thereby negate the declaratory effect of s 84(4) of the NTA. The State and its Ministers have a separate legal personality.

12    There is nothing in the evidence that indicates whether a nomination has been made under paragraph (b) of the definition of State Minister. The Court has not received a notice from any Minister indicating that he or she does not want to be a party to this proceeding. Accordingly, by force of s 84(4), it seems that the State Minister, whoever that might be, is a party to this proceeding, notwithstanding that no State Minister is named as a party on the Court file nor entered an appearance. If that is correct, that then gives rise to the question whether the State’s notice under s 86G(2) can be taken to be the relevant State Minister’s notice. Whether or not that notice might ultimately be taken to be sufficient, no submissions address that issue and the prima facie position seems to me to be that the relevant State Minister has not provided a notice in accordance with s 86G(2). In those circumstances, the application is not therefore “unopposed” within the meaning of s 86G(2) because a party declared to be as such by the NTA has not provided a written notice that he or she does not oppose the relief sought in the application.

13    For those reasons, even though there is no active opposition to the application, I considered that I could not determine the application on the papers without the need for a hearing. Lest it be thought that that course of action was unnecessarily pedantic, it is to be recalled that the present application involves the determination of property rights. As explained Emmett J in Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [22]:

The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes.

(Original emphasis.)

Background

14    The Land is located in the Barcaldine local government area and covers approximately 18,746 hectares. Mr Arnaboldi is the registered lessee of the Land under a rolling term lease pursuant to s 164 of the Land Act 1994 (Qld) expiring on 31 March 2048. He became the leaseholder in 2005, prior to which the leaseholders were his parents. At all times that the Land has been in the possession of the Arnaboldi family, it has been used as a pastoral holding operating as a grazing property: Aff-GDA at [4], [16]-[17] and Annexure GA-01.

15    On 24 January 2022, the Queensland Department of Natural Resources, Mines, Energy and Environment made a conditional offer to convert the lease to freehold: Aff-GDA at Annexure GA-04.

16    The present application is filed to satisfy the condition of that offer which requires this Court to determine that native title rights and interest do not exist in relation to the Land: Aff-GDA at Annexure GA-04, p 40.

Legislative framework

17    The principles applicable in the determination of a non-claimant application were identified by the Full Court in Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41, which principles include those established in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320.

18    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.

19    The key questions for determination are:

(1)    whether the orders sought by Mr Arnaboldi are within the power of the Court to make; and

(2)    whether it is appropriate for the Court to make the orders sought.

20    For the reasons that follow, I consider that the orders sought are within the power of the Court to make and that it is appropriate to make the orders sought.

Power of the court to make the determination

21    Pursuant to s 81 of the NTA, this Court has jurisdiction to hear and determine applications filed in the Court that relate to native title, and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

22    Section 13 of the NTA permits an application to be made to this Court for the determination of native title in relation to an area that has no other approved determination of native title. A “determination of native title” is defined by s 225 of the NTA to be a determination of whether or not “native title”, as defined in s 223 of the NTA, exists in the relevant area. Relevantly, this includes a negative determination: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466. 

23    Section 61(1) of the NTA sets out the kinds of applications that may be made, and the persons who may make an application. It relevantly 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” may make an application mentioned in s 13(1) for a determination of native title. As mentioned, that includes a negative determination.

24    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, in relation to land or waters” to include “a legal or equitable estate or interest in the land or waters”.

25    The present application was filed in accordance with ss 13(1) and 61(1) of the NTA. Mr Arnaboldi’s non-native title interests arise as a result of his lease over the Land.

26    In those circumstances, s 66(3) of the NTA required 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. I am satisfied on the evidence that effective notice was given: First Aff-TN at [31] and [32].

27    The notification period prescribed in s 66(10)(c) came to an end on 31 August 2022. No Form 5 party applications were filed in the proceeding: First Aff-TN at [36]; Second Aff-TN at [11]. There is no opposition to the application.

28    Further, throughout various periods from 16 March 2019 to 6 February 2023, searches of the National Native Title Tribunal confirmed there were no relevant entries on the Register of Native Title Claims with regard to the Land: First Aff-TN at [22]-[30].

29    I am therefore satisfied the order sought is within the power of the Court, and 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

30    The onus rests on the applicant to prove, on a balance of probabilities, his claim for a negative determination: Mace at [44], 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).  

31    The searches conducted demonstrate there is no previous determination of native title over the Land nor is the Land subject to any current application.

32    The Land has been subject to one previous native title claim, namely the Bidjara People #7 claim. That claim involved areas that overlapped with the claimed lands and waters of other applicants. The Bidjara People’s claim, insofar as it concerned the overlap area with the other claimants, was determined by Jagot J in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Wyman No 2) in which her Honour relevantly held that the Bidjara People failed to establish that any body of traditional law and customs had continued: at [672]. An appeal to the Full Court was dismissed in Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; 324 ALR 454. In Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777, Jagot J summarily dismissed the Bidjara People #7 claim that related to the balance of the land (ie, the areas that did not overlap with land claimed by other claimants) on the basis that it attempted to re-litigate an issue of fact decided in Wyman No 2.

33    Consistently with my reasoning in Appleton v State of Queensland [2023] FCA 45, Bartolo v State of Queensland [2022] FCA 100, Prow v State of Queensland [2021] FCA 1532 and WG & DK Ryan Pty Ltd (Trustee) v State of Queensland [2021] FCA 499, although there is evidence of historical claims that overlap the Land, there is insufficient evidence to support a finding that the Bidjara People maintain an interest of any kind in the Land. The Bidjara People have not filed an appearance in the proceeding seeking to oppose it and, even if they did, they would face almost insuperable obstacles given the findings of fact in Wyman No 2, as confirmed on appeal.

34    Separately, the representative body for the area, Queensland South Native Title Service, has not sought to intervene or be joined as a respondent to the application following notification.

35    In those circumstances, I am satisfied that there is no evidence of any persons maintaining any native title interest in the Land. Mr Arnaboldi has discharged his onus of establishing, on the balance of probabilities, that native title does not exist over the Land. 

Disposition

36    The appropriate order is that native title does not exist.

Associate:

Dated:    14 July 2023