Jagot, Griffiths and Mortimer JJ
The proceedings concerned two non-claimant applications that native title does not exist in relation to certain land and waters in Queensland and New South Wales (NSW).
The applicants in the Queensland proceedings were Harley William Mace, Andrew Donald Cameron, Nicolette Ann Cameron and Patricia Catherine Cameron. The respondent was the State of Queensland. Queensland South Native Title Services Limited (QSNTL) was later joined as a party by court order.
The applicant in the NSW proceedings was Darkinjung Local Aboriginal Land Council (DLALC). The respondents were the Attorney-General of New South Wales and NTSCorp Limited.
The matters were referred to a Full Court by the Chief Justice of the Federal Court on 30 July 2019 as they were considered sufficiently important because some uncertainty had emerged about the correct approach to be taken in the Federal Court to non-claimant applications. The two proceedings were heard together.
Background
The Darkinjung application
The Darkinjung application (filed October 2018) sought a determination over 28 separate lots of land, totalling over 12 sq. km, within the Central Coast Council Local Government Area of NSW. All the parcels of land are within the DLALC area.
The applicant is the registered proprietor of 24 of the parcels under the Real Property Act 1900 (NSW) in its capacity as a Local Aboriginal Land Council incorporated under the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The remaining 4 parcels had not bee transferred to DLALC but the Crown Lands Minister had determined that the relevant claims in DLALC's favour.
The ALRA places restrictions on Local Aboriginal Land Councils in NSW dealing with land subject to native title. Under s 42(1) of the ALRA, “an Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests…unless the land is the subject of an approved determination of native title.”
Consequently, DLALC was unable to “deal with" the land until there had been an approved determination of native title under the Native Title Act 1993 (Cth)(NTA). The NTSCorp Limited opposed the relief sought.
The Mace application
The Mace applicant was four individuals who, as tenants in common, were the registered lessees of the relevant land. The lease was initially granted for a term of 19 years and was extended to 30 June 2035. In August 2015, members of the applicant applied to the Queensland Department of Natural Resources, Mines and Energy (DNRME) to convert the lease over the land to a freehold title.
One of the Department's conditions was that the lessees address native titlle, either by an application for a determination that native title does not exist or an indigenous land use agreement. QSNTS opposed the relief sought by the Mace applicant.
Consideration
In considering the non-claimant applications the Full Court noted that, whether the applications were opposed or not, the question that must be addressed is whether the applicant discharged its burden of proof that no native title existed in the claim area. The relevant standard of proof in such cases is 'on the balance of probabilities'.
The Court confirmed that where a Court has a non-claimant application before it, it will act on the evidence having regard to:
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 of the applicant and any respondent.
The Full Court rejected the submissions of the representative bodies, NTSL Ltd and QSNTS, that this approach did violence to the protective purpose of the NTA. The Court affirmed the majority's reasoning in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67 and noted, at [52], that the Court:
could not be asked to decide a non-claimant application by a process of speculation about what native title rights and interests might or might not exist in the land; and
must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant application.
The Court noted, at [73], that it is able to consider as a factor in the exercise of its power whether it is “appropriate” to make a determination that no native title exists, even if a non-claimant applicant has proven on the balance of probabilities that no native title exists.
Further, at [86] the Court considered the reasoning and finding of Reeves J in Pate v State of Queensland [2019] FCA 25 concerning insufficient evidence provided by a non-claimant applicant for a negative determination and agreed that what is or is not put before the Court by the relevant representative body for an area may have a significant effect on the Court’s conclusion whether a non-claimant applicant has discharged its burden of proof.
Resolution of the non-claimant applications
The Mace application
The Full Court noted that the Mace applicant had complied with all statutory requirements, and in that sense the preconditions to the exercise of the Court’s power to make a negative determination had been met. The principle question was whether the Mace applicant had proven on the balance of probabilities that no native title exists in the Mace non-claimant application area.
The Full Court determined that there were no factors which emerged on the evidence in the case which made it inappropriate for a negative determination to be made, if the Mace applicant discharged its burden of proof.
Some weight was given to the fact that there were no responses to the NNTT notifications of the non-claimant application although it was recognised that the notification process can fail to reach potential native title claimants. Thus the absence of responses to the notification was insufficient to discharge the Mace applicant’s burden of proof.
The Court accepted that there were no other applications seeking a determination of native title over the Mace land, no entries in the Register of Native Title Claims in respect of the land, and no person has been joined to the application as a respondent to assert the existence of native title over the lands.
However, more was needed to discharge the burden of proof, where evidence was provided by Ms Mailman, a former native title claimant on behalf of the Bidjara People in areas including the Mace land, that she would have applied to be joined as a respondent, had she known earlier about the application (in an affidavit she deposed that she only found out about the existence of the Mace non-claimant application 2 weeks prior to affirming her affidavit).
The Court had previously found that any native title rights and interests asserted by the Bidjara People could not be recognised under Australian law because the traditional laws and customs through which those rights and interests arise have not continued to be recognised and practised by the Bidjara People to the present day.
The existence and content of these previous Bidjara native title decisions, referred to in Ms Mailman’s affidavit, which encompassed the Mace land, persuaded the Full Court on the balance of probabilities that no native title exists in relation to the Mace land.
The Mace applicant was found to have discharged its burden of proof that no native title exists in the Mace land.
The Darkinjung application
The matters considered by the Court in determining whether Darkinjung had discharged its burden of proof included:
there was no approved determination of native title over any part of the application area;
no claimant application was filed during the notification period in relation to any part of the application area, nor was any application subsequently been filed;
no person or group sought to be joined as a respondent to assert a native title interest defensively in relation to any part of the application area;
a registered claimant application was made in relation to an area including the application area, and was discontinued, before Darkinjung’s non-claimant application was filed;
NTSCORP performed its notification function in relation to Darkinjung’s non-claimant application, and did not identify any person or group who might hold native title in the application area; and
there was no evidence of any dispute within the local Aboriginal community about the non-claimant application (including the absence of any dispute within Darkinjung’s constituents, which is of course a broader group than any potential native title holders).
The weight given to the absence of any responsive claims was substantially increased by the affidavit evidence of Ms Holt, the Principal Solicitor at NTSCORP, and Mr Walkley's evidence about communcations between the Darkinjung applicant and NTSCORP, which was regarded as probative of the fact that, at the time this non-claimant application was being decided, no person or group had made it known to the relevant representative body that any native title exists in the non-claimant application area.
Although, the Court recognised the notification process can fail to reach potential native title claimants there may be for a myriad of reasons, including access to resources, access to notifications and the like.
Regard was also had to the Awabakal and Guringai people’s native title claims. The Court was satisfied that the people who comprised the Awabakal and Guringai applicant elected to discontinue their native title claim in June 2017. They did so at a time when they were legally represented, and on express notice that Darkinjung had filed a non-claimant application over an area within the external boundary of the Awabakal and Guringai People’s claim.
The Court was satisfied that Darkinjung had discharged its burden of proof that no native title existed in the land and waters covered by the non-claimant application.
Orders - Mace proceedings
Native title does not exist in relation to the land and waters that is Lot 8 on Crown Plan OR367 in Queensland.
QSNTS Limited be joined as a party to the proceeding
No order as to costs
Orders - Darkinjung proceedings
Native title does not exist in relation to the land and waters in New South Wales that is the 28 lots listed.
No order as to costs