Federal Court of Australia

Moonyanco Pty Ltd as Trustee under Instrument 719523925 v State Minister for the State of Queensland [2024] FCA 931

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 13(1)(a) of the Native Title Act 1993 (Cth), no native title exists in relation to the land that is described as Lot 4930 on Survey Plan 274330, located in the Barcoo local government area 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

SHARIFF J:

1    The applicant seeks a determination pursuant to ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) (NT Act) that native title does not exist in relation to the land described as Lot 4930 on Survey Plan 274330 (the Land). The Land is approximately 30,900 hectares and is a part of a property called “Mutti” which is located in the Barcoo local government area in Queensland.

2    The applicant is the current registered lessee of a rolling term lease over the Land (the Lease). The Land is currently used for grazing, and the applicant submits that it intends to continue to use the Land for this purpose.

3    On 17 May 2023, the applicant submitted an application to the Department of Resources (the Department) seeking a conversion of the Lease to freehold. On 30 June 2023, the applicant lodged and filed the present application in this Court, the purpose of which is to enable the grant of freehold of the Land by the Department.

4    On 30 April 2024, the respondent filed a notice under s 86G(2) of the NT Act indicating that it does not oppose an order in, or consistent with, the terms sought by the applicant (s 86G Notice).

5    The applicant relies upon the following affidavits in support of the application:

(a)    Affidavit of Tom Knight Gordon (Director of the applicant) sworn 25 March 2024; and

(b)    Affidavit of Erin Louise Sellentin sworn 28 March 2024.

6    The respondent relies upon an affidavit of Rosalba Ozlem Rigamoto sworn 30 April 2024.

7    For the reasons which follow, I have decided to make the order sought by the applicant.

statutory framework

Jurisdiction

8    This Court has jurisdiction to hear and determine applications that relate to native title under s 81 of the NT Act.

9    Section 13(1) of the NT Act permits an application to be made to the Court for an “approved determination of native title” in relation to an area over which there is no other approved determination of native title.

10    Section 61(1) specifies the persons who may make applications for an approved determination. Relevantly, such persons include 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”. An “interest” in relation to land includes a legal or equitable interest in the land: s 253 of the NT Act.

11    A “determination of native title” is a determination of whether or not native title, as defined in s 223 of the NT Act, exists in relation to a particular area, and, if it does exist, a determination of the matters set out in paragraphs (a)-(e) of s 225 of the NT Act.

12    Section 94A of the NT Act provides that an order in which the Court makes a determination of native title must set out details of the matters mentioned in s 225 of the NT Act. In an application for an order that native title does not exist, it is not necessary for the order described in s 94A to address the matters in subparagraphs (a)-(e) of s 225.

13    Section 213(1) of the NT Act provides that, if for the purpose of any matter or proceeding before the Court it is necessary to make a determination of native title, a determination must be made in accordance with the procedures in the NT Act.

Procedures to be followed

14    Pursuant to s 66(2)-(2A) of the NT Act, the Native Title Registrar (Registrar) must, as soon as is reasonably practicable, provide an application to the State Minister and various representative bodies.

15    The Registrar must also notify the public and various other people listed in s 66(3) of the NT Act. The notice must, among other things, state that a person who wishes to be a party to the application must notify the Court in writing within three months starting on the notification day or, after that period, obtain the leave of the Court to become a party under s 66(10)(c).

16    Section 6 of the Native Title (Notices) Determination 2011 (No 1) (Cth) provides that a notice under s 66(3) must be published by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates and in a relevant special-interest publication.

17    Where a non-claimant application is unopposed within the meaning of s 86G(2) of the NT Act, the Court is empowered to make a determination without holding a hearing, provided the other requirements of s 86G(1) are met. Those requirements are that:

(a)    the period specified in the notice under s 66 of the NT Act has ended;

(b)    the 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 the Court that it is appropriate to make such an order.

18    Section 86G(2) of the NT Act defines the meaning of “unopposed” for the purpose of s 86G(1):

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.

19    The present application is unopposed within the meaning of s 86G following the respondent filing the s 86G Notice.

20    Importantly, however, the same kinds of matters will need to be established by an applicant in an unopposed application to which s 86G of the NT Act applies as in a contested application: see s 86G(1); Mace v State of Queensland [2019] FCAFC 233; (2019) 274 FCR 41 at [43] (Jagot, Griffiths and Mortimer JJ).

21    The discretionary power of the Court to make a determination that native title does not exist was affirmed by the majority of the Full Court of this Court in CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466.

22    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 v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 at [74] (Moore, Mansfield and Perram JJ); see also Mace at [44]. 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 and interests may or may not have continued: Mace at [55] citing Worimi at [56].

23    The Full Court in Mace found at [46] that there is “a clearly established approach” for the determination of both a contested non-claimant application and an uncontested non-claimant application. The Full Court outlined principles to be applied in such cases, including principles established by the Full Court in Worimi. These principles were summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10], relevantly, as follows:

(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…

(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].

24    To this summary can also be added the following observations of the Full Court in Mace at [94]:

The weight to be given to the absence of any responses will be considered in the context of all the circumstances relating to the land and waters covered by the non-claimant application, including matters such as whether there have been previous claims over the land and waters and the fate of those claims, and what information the relevant representative body (or Land Council) might have about people who may claim connection to the land and waters based on traditional law and custom. There can be no prescription that absence of responses to NNTT notifications should be given great weight, or no weight, or something in between. What is more important, it seems, is that the Court can reasonably expect a representative body for the region in which the non-claimant application land and waters are located to provide some evidence or information to the Court about what it knows, or does not know, about potential native title holders for the claimed area.

25    The above principles have been applied more recently by the Court in Armidale Local Aboriginal Land Council v Attorney General of New South Wales [2024] FCA 50, Russell Estates Pty Ltd v State Minister for the State of Queensland [2023] FCA 1588 and Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 813.

CONSIDERATION

26    In light of the above statutory framework, the conditions for the making of an approved determination that no native title exists in the Land are that:

(a)    the application has been notified in accordance with s 66 of the NT Act;

(b)    the prescribed notification period under s 66(10)(c) has come to an end and there are no persons who oppose the application;

(c)    the Land is not covered by an application for a determination that native title does not exist;

(d)    an order in, or consistent with, the terms sought by the application is within the Court’s power; and

(e)    it is appropriate to make such an order.

27    As to the first two of these conditions, I am satisfied of the following matters based on the evidence adduced by the parties.

28    On 6 July 2023, the applicant received confirmation from the National Native Title Tribunal (Tribunal) that the Registrar had, pursuant to ss 66(2) and (2A) of the NT Act, notified the respondent and Queensland South Native Title Services (QSNTS) as the representative body for the region relevant to the Land.

29    On 16 August 2023, the applicant received confirmation from the Tribunal that the Registrar had notified the application pursuant to s 66(3) of the NT Act. The notification period for the application was 6 September 2023 to 5 December 2023. The application was notified in the Brisbane Courier Mail newspaper on 23 August 2023, and in the Koori Mail on 23 August 2023. The notice included the required matters under s 66(10) of the NT Act.

30    There are no persons who oppose the application. The only parties to this proceeding are the applicant and the State Minister for the State of Queensland. No other parties, including QSNTS, have filed a Form 5 Notice of intention to become a party, nor has any party sought the leave of the Court to become a party to the proceedings after the expiry of the notification period.

31    Based on these facts, I am satisfied that the first two conditions set out at [26] above are satisfied.

32    As to the third condition set out at [26], I am satisfied based on the evidence before me that, on 12 December 2023, the Tribunal confirmed that a search of the Register of Native Title Claims (RNTC) shows that there are no relevant entries on the RNTC that fall within the external boundary of the application. Searches and mapping show that there have also been no historical native title claims or Indigenous Land Use Agreements overlapping the land.

33    While there are no overlapping historical or current claims, I note that the closest native title determination to the Land is that made in Murphy v State of Queensland [2021] FCA 81, which is located approximately 20km south-west of the Land. The State of Queensland was the only respondent in that proceeding and filed a s 86G Notice. The Court made a determination of no native title in Murphy. Approximately 96km south-west of the Land is the land subject of Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116, where the Court made a consent determination on 27 October 2015 that native title exists within the claim area. Approximately 87km south of the Land is the land the subject of a native title determination in Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600. In Boonthamurra, the Court made a consent determination on 25 June 2015 that native title exists in the determination area.

34    There are no other current native title determinations or applications within similar distances to the Land.

35    Based on the above facts, I am satisfied that the third condition set out at [26] above is met.

36    As to the fourth condition, I am satisfied for the reasons set out above that the Court has power to make the orders sought.

37    As to the fifth condition, I consider the following factors relevant to the question whether it is appropriate that the orders sought be made.

38    First, searches conducted with, and information provided by, the Tribunal have established that:

(a)    there is no previous approved determination of native title in the Land;

(b)    there is no current native title application in relation to the Land; and

(c)    there are no historical native title claims over the Land.

39    Second, enquiries have been made with the representative body for the area in which the Land is located and no response has been received. QSNTS has neither joined nor sought to be joined as a respondent to the application. This fact does not have a prescribed weight for the Court to take into account. While it is a fact which is entitled to some weight, more evidence may be required for a non-claimant applicant to discharge its burden of proof. However, in the particular circumstances of this case, including the applicant’s correspondence sent to QSNTS, and the historical engagement of QSNTS as the representative body in the applications made in the Mace proceedings, it would be reasonable to expect that there would be some level of engagement by QSNTS in relation to the application if it had any knowledge of potential native title interests over the Land. The Court has previously considered the absence of response or action from QSNTS in recent applications to support a finding that no persons maintain any native title interest in the Land: see Murphy at [40]; WG & DK Ryan Pty Ltd v Queensland [2021] FCA 499 at [17]; Arnaboldi v State of Queensland [2023] FCA 788 at [33]-[35]; Russell Estates Pty Ltd v State Minister for the State of Queensland [2023] FCA 1588 at [22]-[27].

40    Third, there is no evidence of any objectively arguable assertion of native title in the Land, and the evidence of Mr Gordon is that neither he, nor to his knowledge the applicant, have ever been approached by any person asserting native title rights in the Land.

41    Fourth, there is no evidence before me that an offer to convert the Lease to freehold has yet been made by the Department. However, an offer for conversion is not a necessary pre-condition for a non-claimant application. The applicant is entitled to file the application as it holds a non-native title interest in relation to the whole of the Land pursuant to s 61(1)(2) of the NT Act. The purpose for which the application is brought does not alter the court’s approach to the exercise of the power to make the determination sought: Mace at [42].

42    Taking all of the above factors into consideration, I am satisfied that it is appropriate to make the determination sought by the applicant.

DISPOSITION

43    Exercising my discretion under s 86G(1) of the NT Act, I am satisfied that:

(a)    the application satisfies the formal requirements for a non-claimant application under the NT Act;

(b)    all necessary notices have been given to the State, the representative body and the public via the Tribunal; and

(c)    there is no evidence as to the existence of any native title in the Land.

44    Accordingly, I will make a determination that no native title exists in relation to the Land.

Associate:    

Dated:        16 August 2024