Federal Court of Australia

Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 4) [2024] FCA 425

ORDERS

THE COURT DECLARES THAT:

1.    Native title does not exist in relation to any part of the claim area to the west of the Dawson River.

THE COURT ORDERS THAT:

2.    The proceeding is otherwise dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant has applied for a determination of native title over approximately 25,506 km² of land and waters broadly west and south-west of Rockhampton in Central Queensland.

2    On 15 June 2023, in Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600, I delivered reasons for judgment answering two separate questions.

3    The first separate question asked:

But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?

4    I answered that question, “No”. In light of that answer, the second separate question was inapplicable.

5    It is now necessary to determine the appropriate consequential orders.

6    In order to understand these reasons, it is important to note that the Dawson River, flowing generally south to north, bisects almost the entirety of the claim area. The Dawson River divides the claim area into two parts, one to its east and the other to its west.

7    I summarised my findings concerning the first separate question as follows (at [1,238]):

(1)    At sovereignty, Gaangalu people occupied and had rights and interests in the whole of the claim area to the west of the Dawson River. They also had rights and interests in part of the claim area east of the Dawson River, including in Three Rivers, Mount Spencer and Banana areas. Gaangalu people did not occupy and have rights and interests in areas further to the east. Consequently, the present day Gaangalu people do not have rights and interests under traditional laws and customs in areas such as Mount Morgan, Biloela and Thangool.

(2)    The applicant has not proved that the Gaangalu possess the claimed rights and interests under traditional laws acknowledged and the traditional customs observed by the Regional Society.

(3)    The applicant has not proved that the Gaangalu have a connection with the land or waters by the traditional laws acknowledged and the customs observed by the Regional Society.

(4)    The applicant has not proved that the Regional Society continues to exist.

8    The separate questions were contested between the applicant and the State. None of the other respondents took part in that contest.

9    Two respondents, Woorabinda Aboriginal Shire Council and Woorabinda Pastoral Company (the Woorabinda Parties), have now made submissions seeking a determination that native title does not exist in the land and waters of the claim area to the west of the Dawson River.

10    The applicant opposes the determination sought by the Woorabinda Parties. The applicant submits that the appropriate order is simply that the proceeding be dismissed.

11    Queensland South Native Title Services (QSNTS) has joined the proceeding for the purpose of making submissions as to the appropriate relief. It opposes the orders proposed by the Woorabinda Parties and supports the order proposed by the applicant.

12    The Woorabinda Parties submit, in the alternative, that a determination should be made that native title does not exist in the particular areas in which they hold interests. That alternative form of determination is not opposed by the applicant or QSNTS.

13    The State of Queensland indicated that it does not oppose the dismissal order sought by the applicant, but has declined to make submissions about the merits of the competing positions of the applicant and the Woorabinda Parties. When asked why it had taken that position, the State’s response was that its, “role in the hearing of this proceeding was not one adversarial in nature”. That response significantly underplays the State’s role in the hearing of the separate questions where it cross-examined the lay and expert witnesses called by the applicant and made extensive submissions opposing the applicant’s case. The State’s recasting of its role has meant that the Court has lacked the assistance it was entitled to expect from the State in determining the appropriate orders.

14    The contest between the Woorabinda Parties, on one hand, and the applicant and QSNTS, on the other, is whether a determination should be made that native title does not exist in the whole of the claim area to the west of the Dawson River. A determination of such a kind has been described in the authorities as a “negative determination”. Initially, QSNTS submitted that the Woorabinda Parties had no standing to make submissions in support of a negative determination beyond the particular areas in which they have particular interests, but that submission was ultimately withdrawn.

15    The applicant’s application was made under ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) (the NTA) for a “determination of native title”. Under s 225, such a determination is, relevantly, “a determination whether or not native title exists in relation to a particular area” (emphasis added).

16    Under s 81 of the NTA, the Federal Court has jurisdiction to hear and determine applications filed in the Court that relate to native title. Accordingly, the Court has jurisdiction to determine whether native title does or does not exist in relation to the area claimed by the applicant.

17    It is well established that where the evidence fails to prove the existence of native title in an area, a discretion may arise to determine that native title does not exist in relation to that area: State of Western Australia v Ward (2000) 99 FCR 316 at [219]; Mace v State of Queensland (2019) 274 FCR 41 (Mace) at [73]. However, that discretion does not arise unless the Court is first satisfied on the balance of probabilities that native title does not exist in relation to that area: CG (deceased) (on behalf of the Badimia People) v State of Western Australia (2016) 240 FCR 466 (Badimia) at [48] and [66].

18    In Badimia, the plurality of the Full Court held at [66]:

…[I]n any case where it is decided that a negative determination should be made, it is a necessary (but not sufficient) pre-condition that the Court is satisfied that there is no native title that can be recognised and thus protected. This satisfaction, it must be said, will not follow simply from the dismissal of a claimant application. Whether it is appropriate to proceed to consider the making of a negative determination will depend in part upon the reasons why a claimant application has failed. It will depend in part also upon the extent to which, if at all, competing claimant applications have been heard at the same time. If the Court is satisfied that all the potentially competing claimants for the recognition of native title in respect of the claim area have participated in the hearing, and all have failed, a negative determination could be made if the Court is satisfied that there is no native title that can be recognised and protected. If that is not the case, the Court will no doubt consider whether, despite the notice of the claimant application given pursuant to s 66, there are reasons for notice of the prospect of a negative determination being given to some other person or persons, or indeed to the native title representative body for the particular area. Given that a negative determination is, as we have pointed out above, a determination in rem, it is important that the Court carefully consider such matters before it can be satisfied, on the balance of probabilities, that no native title right or interests exist in relation to a particular area.

19    It may be noted that no party submitted that there should be a negative determination in respect of land and waters in the claim area east of the Dawson River. My findings differed as between the areas to the west and east of the Dawson River. I found that, at sovereignty, the Gaangalu people held native title rights and interests in respect of the whole of the claim area to the west of the Dawson River, but that they did not hold such rights and interests in the claim area to the east of the Dawson River with the exception of some limited areas. There was, at one point, a claim by the Warrabal people which overlapped the eastern part of the Gaangalu claim area (QUD580/2017), but that claim was discontinued: see Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369. There are no longer any Indigenous respondents who claim that they have any interests in the eastern area.

20    I have not been required to make findings as to which group or groups occupied and held rights and interests under their traditional laws and customs at sovereignty in respect of the vast bulk of the claim area east of the Dawson River. I am not satisfied that native title does not exist in the claim area east of the Dawson River. Accordingly, the pre-condition described in Badimia for making a negative determination does not exist in most of the claim area east of the Dawson River and I do not propose to make a negative determination in respect of any part of that area.

21    It has not been submitted by the applicant or QSNTS that the precondition is not satisfied in respect of the claim area west of the Dawson River. Nevertheless, it is necessary to consider whether the precondition is satisfied before considering the exercise of the discretion. In Badimia, the plurality stated at [48]:

The fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations. This fact warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. But the onus remains the civil standard of the balance of probabilities. If the circumstances are such that a native title claimant application has not been established to the requisite standard, the onus of proof to support a negative determination may or may not have been discharged. If not discharged, it necessarily follows that a negative determination may not be made. If discharged, however, it does not necessarily follow that a negative determination should be made. The propriety or otherwise of making of a negative determination in such a case will depend on a wide range of circumstances. As noted, the legal character of a determination, that it will bind the world at large and not just the parties, will necessarily inform the appropriate exercise of the discretion whether or not to make a negative determination.

22    In Mace, the Full Court held at [84]:

…In unopposed applications, or in contested ones, the Court’s approach will depend entirely on what it hears in the evidence about the land and waters in question, the presence or absence of previous native title claims, any evidence of present claims or objections from persons claiming to be native title holders, of research undertaken or not undertaken by a representative body or by others, or of the knowledge (or lack of it) of Indigenous people who give evidence or provide information to a person who gives evidence, or what the Court considers can or cannot be drawn from the absence of any evidence about present connection to the claimed land and waters arising from traditional law and custom. The serious consequences of making a negative determination are apparent, and it can be assumed each judge considering such an application is aware of them.

23    I have found that at sovereignty, the Gaangalu occupied and had rights and interests in the whole of the claim area to the west of the Dawson River. The applicant did not attempt to demonstrate that they continue to hold rights and interests in the claim area under the traditional laws and customs of the Gaangalu. Instead, they contended that they hold their rights and interests under the traditional laws and customs of a regional society, consisting of the Gaangalu, Wadja and Garingbal people (the Regional Society). It is apparent that this was a considered and purposeful approach.

24    I held that the applicant had not proved that the present-day Gaangalu people possess the claimed rights and interests under traditional laws and customs of the Regional Society, nor that they have a connection with the land or waters by the traditional laws and the customs of the Regional Society. I also held that the applicant had not proved that the asserted Regional Society continues to exist.

25    There was previously a claim filed by the Wadja people which partially overlapped the south-west section of the Gaangalu claim (QUD422/2012 and QUD28/2019). However, on 17 July 2014, the Court made an order allowing the Wadja, who were legally represented, to amend their claim to eliminate the overlap. There are currently no Indigenous respondents to the proceeding.

26    There was some evidence (discussed at [604]–[608] of my reasons) suggesting that the Wadja may have occupied part of the Gaangalu claim area in the vicinity of Woorabinda at sovereignty. However, the applicant asserted that the Woorabinda area was Gaangalu country and Dr de Rijke, an anthropologist called by the applicant, considered that aspect of the applicant’s claim to have been corroborated by independent information (see at [612]–[615] and [623]–[625]). I found at [631] that at sovereignty and effective sovereignty, it was the Gaangalu who occupied the whole of the claim area west of the Dawson River.

27    The Wadja people did not seek to demonstrate that they may have had rights and interests in any part of the Gaangalu claim area. That was a product of their decision to withdraw the overlap and to not contest the Gaangalu claim. It may be noted that QSNTS, the relevant representative body, did not seek to place before the Court any additional evidence concerning any Wadja rights and interests in the Gaangalu claim area, nor to adduce any evidence suggesting the Wadja amended their claim for reasons other than recognition that they were unable to establish they hold native title in the Gaangalu claim area. I am satisfied from the evidence before the Court that the Wadja did not have rights and interests under their traditional laws and customs in any part of the Gaangalu claim area at sovereignty and, accordingly, they do not have any such rights and interests now.

28    I am satisfied that, at sovereignty, it was the Gaangalu people alone who occupied and held rights and interests under traditional laws and customs in the claim area west of the Dawson River. As they have not been able to establish their native title, I am satisfied, on the balance of probabilities, that native title does not exist in the claim area west of the Dawson River.

29    It is necessary to consider the exercise of the Court’s discretion as to whether a negative determination should be made in respect of the whole of the claim area west of the Dawson River.

30    QSNTS submits that the following matters tell against the making of any negative determination:

(a)    the relief to which the Woorabinda Parties are entitled is properly confined to the geographic area of their interest that formed the basis of their joinder to the proceeding;

(b)    the State, being the only respondent which participated in the hearing, does not oppose the dismissal order sought by the applicant;

(c)    the Wadja application previously overlapped the south-west section of the proposed determination area and there is ethnographic evidence supporting the possibility that they held rights and interests in that area at effective sovereignty; and

(d)    while the viability of a re-enlivened Wadja people claim to those areas may be accepted to be undermined by the Court’s findings, that possibility cannot be ruled out, particularly where the State does not seek a determination that native title does not exist.

31    The applicant submits that as the Woorabinda Parties took no active role in the hearing and they have no interests in large parts of the western part of the claim area, their submissions should be accorded no weight and should be rejected.

32    The Woorabinda Parties rely on Sandy (on behalf of the Yugara People) v State of Queensland (No 3) (2015) 325 ALR 668; [2015] FCA 210 (Sandy) at [16] where Jessup J considered that, “[e]ven without the submission of any respondent”, the NTA contemplates the making of a negative determination as within the range of possible outcomes.

33    The Woorabinda Parties rely on s 22 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) which provides that the Court, “shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appear to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided”.

34    The Woorabinda Parties submit that the evidence does not indicate that any group other than the Gaangalu had native title rights and interests over the western area at sovereignty and there is no basis on the available evidence to infer that there are other groups that may hold native title over that area. They submit that this case, like Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8, is distinguishable from Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 where Lindgren J contemplated at [4005]–[4007] that, on the evidence, alternative claimant applications might be conceivable.

35    As I have indicated, QSNTS withdrew its contention that the Woorabinda Parties lacked standing to make a submission that there should be a negative determination in respect of the whole of the area west of the Dawson River. I do not accept that the Woorabinda Parties’ submissions should be given less weight or rejected because they took no active role in the hearing or their interests only lie in part of the western claim area. They were entitled to make their submissions that there should be a negative determination in respect of the whole of the western claim area and those submissions must be assessed according to their merits. In any event, as Jessup J pointed out in Sandy at [16], the NTA contemplates the making of a negative determination as within the range of possible outcomes even without the submission of any respondent.

36    The fact that the State, as the only respondent party who participated in the trial, does not oppose the dismissal order sought by the applicant is of little moment. The State expressly declined to make submissions about the merits of the competing positions of the applicant and the Woorabinda Parties. Even if the State supported the applicant’s position, their submissions would have fallen to be judged on their merits, just as the submissions of any other parties must be judged on their merits.

37    QSNTS submits that the possibility of a re-enlivened Wadja people claim cannot be ruled out. That may be so, but in the absence of evidence that the Wadja are contemplating such a claim, that possibility is speculative. The fact that the Wadja, apparently with the benefit of legal advice, abandoned their claim over any part of the Gaangalu claim area and did not contest the Gaangalu claim demonstrates the speculative nature of that possibility.

38    In addition, the mere possibility of the Wadja re-enlivening their claim says nothing about the prospect of any such claim succeeding. Under s 67(1) of the NTA, if two or more proceedings relate to native title determination applications that cover (in whole or in part) the same area, the Court must make orders appropriate to ensure that, to the extent the applications cover the same area, they are dealt with in the same proceeding. The Wadja have had the opportunity to advance a case that they do hold native title within the Gaangalu claim area, but chose not to do so. I am satisfied on the evidence before the Court that their prospects of establishing native title in that area in the future are inadequate to prevent the making of a negative determination.

39    In Commonwealth v Clifton (2007) 164 FCR 355, the Full Court observed at [41] that s 22 of the FCA Act obliges the Court to grant all remedies to which any of the parties appear to be entitled in respect of a claim properly brought forward by him or her in the matter so as to avoid multiplicity of proceedings. In Wyman (on behalf of Bidjara People) v State of Queensland (2015) 235 FCR 464 at [494], the Full Court held that s 22 does not limit the discretion afforded to the Court under s 225. Nevertheless, s 22 cannot be ignored. A negative determination in respect of the western part of the claim area would assist to avoid a multiplicity of proceedings. In Badimia, the Full Court observed at [44] that it is not the case that the unique character of a native title determination indicates a statutory intention to enable successive applications by the same or different groups to the one area of land.

40    In Badimia, the Full Court emphasised at [44] that the appropriate exercise of the discretion is necessarily informed by the legal consequence that a negative determination will bind the world at large and not just the parties. That is a matter I take into account, but is affected by the merely speculative possibility that there may be any further application for a determination of native title over the same area.

41    There is a public interest in certainty concerning the status of the area claimed under a native title claim following the Court’s determination that native title does not exist. That is reflected in the authority of the Court under s 81 of the NTA to determine whether or not native title exists in relation to a particular area. In the circumstances of the case, it is appropriate to give weight to that aspect of the public interest by making a negative determination in respect of the claim area to the west of the Dawson River.

42    Accordingly, there will be a declaration that native title does not exist in relation to the part of the claim area to the west of the Dawson River. The proceeding will otherwise be dismissed.

Associate:    

Dated:    30 April 2024

SCHEDULE OF PARTIES