Full Court resolves uncertainty about non-claimant applications

Mace v Queensland [2019] FCAFC 233
Pate v Queensland [2019] FCA 25

What you need to know

• The Federal Court decision in Pate v Queensland [2019] FCA 25 caused uncertainty in relation to the determination of non-claimant applications. The Court suggested that there might be a "less stringent" approach to assessing the evidence where the non-claimant application is made by a Local Aboriginal Land Council in New South Wales.
• This uncertainty was subsequently resolved by the Full Court in Mace v State of Queensland [2019] FCAFC 233. The Full Court confirmed that the Court’s approach must be one that is capable of applying to all non-claimant applications, wherever they are filed, and in respect of any land and waters in Australia. 
• The Full Court applied the clearly established principles from earlier Full Court decisions to determine whether the applicant in each case had discharged the onus of proving that native title does not exist.
• The Full Court also suggested that applicants should consider other means of communication (other than just newspaper advertisements) to publicaly notify the non-claimant applications and noted that there should be proactive engagement with the relevant representative body during the non-claimant application process.

What you need to do

Applicants for a non-claimant application seeking a negative determination of native title should:

• ensure they can meet the evidentiary threshold for proving that native title does not exist and not rely simply on the absence of native title claims in the areas; and
• engage with the relevant representative body and consider using social media to advertise the non-claimant application, not just newspapers.

What is a non-claimant application?

A non-claimant application is a native title claim by a person or entity that holds a "non-native title interest" in relation to land, either seeking a determination that native title does not exist in relation to the claim area (a negative determination) or seeking native title "protection" for a dealing in relation to that land (see sections 24FA and 61(1) of the Native Title Act 1993 (Cth)). 

If a non-claimant application does not result in a native title claim being registered over the land during the notice period, it may be progressed to hearing where the Court will consider whether it is appropriate to make a negative determination of native title. 

Most non-claimant applications are in NSW or Qld

Seventy five percent of all non-claimant applications made across Australia have been made in New South Wales, and a significant majority of these have been made by Local Aboriginal Land Councils. Most of the remaining non-claimant applications have been made in Queensland. 

NSW Local Aboriginal Land Councils regularly make non-claimant applications to overcome a statutory restriction on their ability to deal with land they own. Section 42(1) of the Aboriginal Land Rights Act 1983 (NSW) prevents a land council from dealing with land vested in it unless and until there has been a determination of native title. 

In Queensland and New South Wales, non-claimant applications are also made by landholders or Government entities wishing to deal with land in circumstances where, if native title does exist, that dealing would require an indigenous land use agreement or right to negotiate process under the Native Title Act.

What was the controversy in Pate v Queensland? 

Pate v Queensland [2019] FCA 25 related to a non-claimant application by a Queensland term lease holder wishing to convert that lease to freehold. The non-claimant application did not result in any registered native title claims and the applicant sought a negative determination of native title from the Federal Court.  The application was unopposed, which meant the Court could make a determination of native title without holding a hearing, if it considered it appropriate to do so (section 86G of the Native Title Act). 

However, the Federal Court refused to make a negative determination of native title. Two significant factors were considered.

Objects and purposes of the Native Title Act could not be met

The Court took into account the objects of the Native Title Act (to recognise and protect native title) and the fact that a negative determination would relieve the State of liability for paying native title compensation for the conversion of the term lease to freehold. 

The Court noted that the term lease could be converted to freehold without the negative determination, by relying on the protections in section 24FA of the Native Title Act, and in such a case native title compensation might be payable. The Court also commented that the applicant did not explain why an Indigenous Land Use Agreement was not the most appropriate course of action.

In light of these factors, the Court said that it did not consider it open to exercise its discretion to make a negative determination consistently with the objects and purposes of the Act.

Evidence not sufficient to discharge the onus of proving that native title did not exist

The Court noted that the applicant bore the onus of proving, on the balance of probabilities, that native title did not exist in relation to the land. The Full Court has previously held that there must be sufficient evidence, in all of the circumstances, that native title does not exist. The nature and extent of the evidence needed will vary depending on the facts and circumstances of each case (Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3). 

In order to prove that native title did not exist in relation to the land, the applicant relied only on the fact that there were no currently registered claims and previously registered claims had been dismissed. The Court held that this was not sufficient to prove that native title did not exist. 

The Court noted the applicant:

• did not adduce any evidence about the history of that land, the presence or absence of any native title in the vicinity of the land, or the presence or absence of any Aboriginal connection with the land; and
• did not adduce any evidence from the Native Title Representative Body as to whether native title rights and interests are likely to exist on that land. 

Clearly established approach to determining if the applicant has proven that native title does not exist 

The Full Court considered that there was a clearly established approach to determining whether the applicant has discharged their burden of proving the non-existence of native title. It said that (at [47]-[51] and [84]):

• the overriding proposition is that each case must be assessed on its own particular facts;
• the Court’s assessment will depend on those particular facts, on the nature of the land and the tenure involved, on the presence or absence of any present or previous native title claims and the nature and content of those claims, and on any particular evidence adduced on behalf of an applicant, and on behalf of any respondents;
• in some cases, and at one end of the evidentiary scale, there may be no need to go beyond proof of an extinguishing grant of freehold title;
• it is the probative strength of the evidence adduced which will be weighed and assessed;
• direct evidence from an Indigenous respondent about that person’s connection, under traditional law and custom, to the land in question may be sufficient to mean that an applicant in a non-claimant application may not discharge her or his burden of proof;
• sometimes, direct evidence from an Indigenous respondent may be insufficient: it may contradict previous decisions about claims over the area; it may not be accepted; it may go to original connection but not continuity. The possibilities are many and varied; and
• where there is no direct, or even indirect evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which could cast doubt on the case brought by the applicant in the non-claimant application that no native title exists.

Guidance from Full Court on non-claimant applications

The Full Court also provided guidance on other matters relating to the conduct of non-claimant application proceedings, including: 

• the absence of responses to a non-claimant application through a public notification process is not necessarily a reliable indicator that no persons or groups assert native title in a non-claimant application area, especially where the notification process is based on newspapers and not on social media, or other forms of media communication (at [65]); and 
• there should be some level of proactive engagement with the relevant representative body in relation to a non-claimant application because a representative body is best placed to assist with evidential matters.

Resolution of the Mace non-claimant application – negative determination made

The Full Court held that the Mace applicant had proven on the balance of probabilities that no native title exists in the non-claimant application area. 

The Full Court acknowledged that there may be rare cases where, even if that burden is discharged, a Court may consider it is not appropriate to make a negative determination. However, in this case, the Full Court saw no reason not to make the negative determination sought.

Resolution of the Darkinjung non-claimant application – negative determination made

The Full Court held that the Darkinjung applicant had proven on the balance of probabilities that no native title exists in the Darkinjung non-claimant application area. 

Authors: Libby McKillop, Senior Associate and Leonie Flynn, Senior Expertise Lawyer.