Reeves J
The Court dismissed the application.
The applicant is a registered lessee of an area of land in North Queensland (Rolling Term Lease PH 30/5128 comprising Lot 51 on SP252761). The applicant applied to the State of Queensland to convert the lease to freehold. The State provided a conditional offer for conversion, with two options:
surrendering native title in the land through a registered Indigenous Land Use Agreement (ILUA); or
a determination by the Federal Court that native title does not exist (negative determination).
Prior, the applicant’s land has been the subject of three separate native title determination applications; (a) QUD6012/2000 – Barada Baran Kabalbara & Yetimarla People (BBKY) , filed 17 November 2000; (b) QUD6023/2001 – Barada Barna Kabalbara & Yetimarla People #4 (BBKY#4), filed 31 July 2001; (c) QUD121/2015 – Koinjmal People (Koinjmal), filed 30 March 2015. The BBKY#4 was accepted for registration, whilst the other two were not accepted for registration and later discontinued.
Regarding the BBKY#4 application, the applicant failed to comply with orders later made by Dowsett J, and the claim is now noted as ‘dismissed’ on the Tribunal’s records. On this basis, the applicant submitted that an inference should be drawn from the following facts that no native title existed in the land:
there are no registered native title claims affecting the subject land; and
no one has expressed an interest in claiming native title in relation to the subject land.
The applicant and State agreed that the application should be treated as unopposed under s 86G of the Native Title Act 1993 (Cth) (NTA). The parties relied on judgments in Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (No 2) (2008) 181 FCR 300 (Worimi No 2)); affirmed on appeal in Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 (Worimi FC); Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 (Deerubbin).
His Honour notes that the applicant has met the two jurisdictional preconditions per Sackville J in Kennedy v State of Queensland (2002) 190 ALR; ‘that the order sought was within the power of the Court; and that the application was unopposed’ (at [13]). However an issue arose surrounding the order being sought that native title over the particular area of land be extinguished, as the Court itself ‘does not have the power to “extinguish” native title’ however it does have the power to make a determination that native title does not exist, a ‘negative determination’, (at [15]). His Honour thereby assumed that the applicant is seeking a negative determination. Per Deerubbin, this can occur upon the bases that:
native title does not presently exist because it is not claimed or cannot be proved by a native title claimant;
native title has been extinguished by prior acts of the Crown.
Appropriateness
His Honour turns to the question of the discretion of the court to make a negative determination under s 86G(1) NTA. His Honour considers the observations of Emmett J in Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109, which held that the objects and purposes of the NTA were significant considerations to be taken into account (at [28]).
Reeves J considers the three authorities relied on by the parties. His Honour distinguished the present case from Worimi (No 2) which was not an unopposed non-claimant application under s 86G (as in this case), and also relied on a significant amount of other evidence at trial rather than just its compliance with the formal requirements of the NTA.
Reeves J notes at [27]: ‘A notice concerning a non-claimant application calls on a person claiming to have native title rights and interests in the area concerned to do one, or both, of two things: to file a claimant application and/or to become a party to the non-claimant application. However no warning provided that a consequence of these actions is that the procedure may result in a negative determination of native title, and that consequently such a determination will extinguish those rights and interest and effectively remove any right to compensation.’
Consideration was given to s 24FA NTA protection, which provides that any future act done on the relevant area is valid. His Honour cites own judgment in CG v Western Australia (2016) 240 FCR 466; noting that the construction of the title of Subdiv F provides an indication that the ‘absence of native title is based upon procedural, not substantive, considerations and that the Subdivision is directed to a particular kind of conduct: future acts.’ If correct procedures are followed under s 24FC NTA, the non-claimant application will then result in s 24A NTA protection for the area ‘at a particular time’, and native title so extinguished will not ever be able to resume its full effect in the future, even if the future act, or its effects, are later wholly or partly removed…’ (at [102]). S 24FC NTA protection is thus ‘exceptional’ in this regard.
Once the area of the applicant’s lease is covered by such an approved determination of native title, ‘ss 13(1)(a) and 68 of the NTA will apply to prevent any further determinations of native title being made in respect to that area’ (at [38]). Thus, the question of compensation provided for in s 24FA NTA will be excluded, in this case relieving the State of liability to pay compensation. His Honour held that such an outcome would be ‘inconsistent with one of the main objects of the NTA. Namely, to protect native title’ (at [41]), and thus the application would fail on this basis.
His Honour then turns to separate reasons as to why the application would fail.
His Honour cites Worimi FC at [80]: ‘It is obviously a difficult task to prove a negative proposition: Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635 at 641-2. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of those things. It must nevertheless be more than a scintilla (Apollo Shower Screens (1985) 1 NSWLR 561 at 55).’
Reeves J interpreted ‘more than a scintilla’ within this context of a desired negative determination as requiring sufficient evidence adduced by the applicant, that will discharge their onus to prove, on the balance of probabilities, that native title does not exist (at [43]).
Reeves J then addressed the applicant’s submission per Deerubbin at [53], that ‘many non-claimant applications have been granted on the basis of proof of the formal requirements of the NTA only’. His Honour considers instead Worimi FC to be the leading authority in this context. This requires a non-claimant applicant ‘to adduce such evidence as the facts and circumstances of the individual case dictate is sufficient to discharge his or her onus to prove that no native title exists in the area concerned’ (at [46]).
His Honour also points out the approach taken in Worimi FC in which primacy is to be given to statutory language, rather than precedent. The cases ‘provide general guidance on how those powers should be exercised and applied by reference to the particular facts and circumstances of each individual case’ (quoting Griffiths J at [53]).
According to Reeves J, a factor affecting the judgment in Deerubbin was an issue that arose regarding s 42 of Aboriginal Land Rights Act 1983 (NSW) (ALRA), which prevents a body in the position of a local land council from dealing with land unless it has obtained a determination that there is no native title. This creates a ‘peculiar circumstance’ whereby the applicant is (a) a Local Aboriginal Land Council (in NSW) and (b) is being forced by s 42 of the ALRA to apply for a negative determination of native title. It is in this context in which judges have been willing to apply a ‘less stringent approach’ to the evidence (at [54]). Reeves J held that because this ‘peculiar circumstance’ does not apply to the present case, there is a higher threshold of evidence necessary to discharge the onus to prove that native title does not exist, and this has not been met by the applicant.
Conclusion
Reeves J did not consider it appropriate to exercise the discretion under s 86G to make a negative determination because (at [56]-[60]):
Considering the caution that always needs to be taken when a court is asked to make a determination which involves property rights, as it is a ‘real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter parties’ citing Emmett J in Munn at [22]). Consequently in the present case, his Honour considers that ‘much greater caution is required’ (at [57]);
It is incompatible with the objects and purposes of the NTA;
Insufficient evidence was adduced by the applicant; for example no evidence was adduced regarding the ‘history of that land, the presence or absence of any native title in the vicinity of it, or the presence or absence of any Aboriginal connection with it’ (at [59]); and
The applicant did not explain why the alternative of a registered ILUA is not the most appropriate course of action.