North, Mansfield, Reeves, Jagot and Mortimer JJ
In this matter, the Full Federal Court considered the power of the Federal Court to make a negative determination of native title in relation to a claimant application. There were three grounds of appeal at issue.
The appeal court was made up of 5 judges. Justices North, Mansfield, Jagot and Mortimer published a joint decision. Justice Reeve delivered a separate decision.
Majority decision
The power issue
The appellants claimed that the Native Title Act 1993 (Cth) (NTA), properly construed, only authorises the making of a negative determination in response to a non-claimant application. It does not authorise a negative determination in relation to a claimant application.
The Full Court noted the same claim was rejected in CG (Deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 and the Full Federal Court's decision concerning the Court's power to dismiss an unsuccessful application and discretion to determine that native title does not exist in Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; (2015) 324 ALR 454.
The Court examined the purpose and objectives of the NTA and provisions that apply to claimant/non-claimant applications and determinations and found that the construction put forward by the appellants is inconsistent with the object of the NTA of establishing a mechanism for determining native title claims as the mechanism provided would be incomplete, impractical and incompatible with the scheme of the Act. The Full Court further noted at [66] that:
“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. 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.”
This ground of appeal was dismissed.
Procedural fairness
The second ground of appeal related to a claim of lack of procedural fairness in making a negative determination. This ground of the appeal was dismissed on the basis that the appellant could not complain about a denial of procedural fairness which was not put to the primary judge and it is not possible to accept that the appellant did not know of the possibility of a negative determination following a failed application. The appellant also argued that a negative determination is a denial of procedural fairness because a different claim group might be able to prove a native title right over the same area. This argument was rejected on the basis that no procedural fairness obligation can arise if a person or group fails to avail themselves of the opportunity to give notice to the Court and be joined as a party.
This ground of appeal was dismissed.
Discretion
The appellant claimed that the primary judge asked the wrong question - whether the appellant had failed to establish the particular claim - and the judge's exercise of discretion had therefore miscarried. The Court held that the primary judge asked the correct question - whether it was proved that native title did not exist - and considered all relevant factors.
This ground of appeal was also dismissed.
Justice Reeve's decision
Justice Reeve generally agreed with the joint judgment and orders made but took a different view about the true character and purpose of a non-claimant and the relevance of s 213(1) of the NTA to the appeal. His Honour concluded that a non-claimant application is not an application which “necessarily claims” that native title does not exist. Instead, it is an application directed to meeting the procedural requirements to gain s 24FA protection for an area of land, at [88]. The extinguishment effected by s 24FA(1)(b) is exceptional because, unlike most of the other similar extinguishment provisions, the non-extinguishment principle does not apply.
In addition, Reeves J determined that s 213(1) did not apply because it does not restrict the generality of the Court’s jurisdiction. It simply imposes a restriction of a “procedural character” on the Court that, if it is necessary to make a determination of native title, the determination must be made in accordance with the procedures in the NTA.