Proving connection becomes harder in 2021

What you need to know

• The Federal Court resolved a number of connection disputes in 2021 in decisions which reinforced the rights of proponents to test the evidence.
• The Court expressed some misgivings about the expert evidence in Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639, where connection was not established.  It noted the primacy of Aboriginal lay evidence and the supporting role that expert witnesses should but do not always play. 
• The Full Court has also made it clear that if native title to a specific area of land is put in issue, it will be necessary to evaluate whether connection to that particular parcel has been maintained, even if connection has been maintained in respect of other areas (Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210).
• In Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251, the Federal Court rejected a pastoral company's challenge to connection.  However, it is clear that respondents to native title claims have the right to challenge connection even after the State has indicated that it will not.  Stakeholders should consider their position on connection in native title claims affecting their interests.  

Claim groups appeal Federal Court decision that native title does not exist in relation to the Clermont-Belyando claim area in Central Queensland

The Federal Court held in Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639 that native title did not exist in the area of the Clermont-Belyando Area Native Title Claim (including the extent to which that claim area was overlapped by the Jangga People #3 claim) because:

• the claim group failed to establish that their ancestors comprised a society at effective sovereignty which acknowledged and observed traditional laws and customs, and 
• even if they had established the above, the claim group failed to establish that the current claim group constituted a normative society united in and bound by a body of laws and customs that they continued to acknowledge and observe.

Both claim groups have filed notices of appeal.  The appeals will be heard together in late 2022/early 2023.  A Full Court decision in late 2023 may finally conclude these proceedings, which were commenced in 2004.  The proceedings relate to over 30,000 square kilometres of land in Central Queensland.

Findings of note – role of the expert witness

The Court expressed some misgivings about the expert evidence in this case.  It noted the primacy of Aboriginal lay evidence and the supporting role that expert witnesses should play.  The purpose of expert evidence is to assist the Court to understand the Aboriginal evidence and the archaeological and ethnographic data, and the inferences that may properly be drawn from that material.  It is not the role of the expert to draw inferences from the facts. That is the role of the Court.  

This reminder is timely given the role that expert reports play not just in native title claim proceedings but also in Aboriginal and Torres Strait Islander cultural heritage matters.

Findings of note – cannot rely on other native title determinations as evidence of connection

The Federal Court was unmoved by nearby consent determinations, and the claim groups' attempts to rely upon them as evidence of connection in this matter.  

The Federal Court said that the connection questions in each claim must be determined based on the issues raised in the pleadings, the evidence properly adduced at the trial and the relevant facts as established on the balance of probabilities.

Full Court upholds negative determination of native title in contested non-claimant application 

Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210 involved an unsuccessful appeal to the Full Federal Court from a determination that native title does not exist in relation to a parcel of Aboriginal land in the town of Narooma, New South Wales, which was owned by the Wagonga Local Aboriginal Land Council.  

The Land Council brought a non-claimant application seeking a determination that native title does not exist so that it could sell the Aboriginal land.  Members of a registered native title claim group with an overlapping claim challenged the non-claimant application and tried to prevent the negative determination of native title.  

Findings of note – contested non-claimant application should have been heard at the same time as the overlapping native title claim

The primary judge ordered that the non-claimant application be heard separately and in advance of the overlapping native title claim.  

Although the Full Court upheld the primary judge's findings that native title did not exist, it noted that the separate hearing should not have occurred.  Section 67 of the Native Title Act imposes a mandatory requirement on the Court that, where two or more native title applications cover the same area of land or waters, the applications must be dealt with in the same proceeding to the extent they cover the same area.  Section 67 was not followed in this case.  

Findings of note – connection in relation to the surrounding area does not determine the question of connection to a particular parcel

According to the primary judge, the evidence suggested that the claim group did have a continuing connection with some land in the vicinity of the Aboriginal land in question (Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113).

However, on a similar note to its findings in Malone that nearby consent determinations cannot be relied upon, the Full Court said at [145]:

If native title in a specific area of land is put in issue, it will be necessary to evaluate whether connection to that area (under traditional laws or customs) has, in reality, been substantially maintained since the time of sovereignty. The fact that connection has been maintained in respect of other areas, even areas in close proximity, does not determine that evaluation.

This decision suggests that there may be some circumstances where, in the resolution of native title claim proceedings or otherwise, non-native title parties may consider testing issues of connection in relation to particular land parcels, notwithstanding that connection is likely to exist in relation to the area as a whole.

Pastoralists unsuccessful in connection challenge

In Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251 the Federal Court rejected a pastoral company's challenge to connection.  

The Kurtjar People's native title claim covered over 12,000 square kilometres of land in the Gulf of Carpentaria, Queensland, including a number of  cattle stations.  Although the State and other respondents accepted the Kurtjar People's connection to the claim area, and were willing to move to the negotiation of a consent determination of native title, Stanbroke refused to accept connection over its station, Miranda Downs.

This stance is relatively unusual in native title claim proceedings.  There is an expectation that respondents will follow the lead of the State in relation to connection issues, and it can be difficult for respondents to even get access to connection material.  

In this case, connection issues over Miranda Downs went to a hearing.  The Court rejected Stanbroke's challenge and found that the Kurtjar people have native title rights and interests in Miranda Downs.

Although Stanbroke was unsuccessful, it is clear that respondents to native title claims have the right to challenge connection even after the State has indicated that it will not.  Stakeholders should consider their position on connection in native title claims affecting their interests.  

Full Court dismisses application for leave to appeal against 2020 decision on role of State in native title claims

In Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176, the Full Court dismissed an application for leave to appeal the 2020 primary judge's decision relating to whether the State had acted improperly in the conduct of a native title claim.  We wrote about the primary judge's decision in our April 2021 article The role of the State in native title claims litigation: balancing competing community interests and acting as a model litigant.

The dispute arose because the State refused to consider a consent determination of native title notwithstanding joint connection reports by the parties' experts agreeing that native title existed.  The claim group challenged the State's position and tried to have its pleadings struck out on a number of grounds.  

The Full Court's decision confirms that experts are not agents of the parties and cannot make admissions on their behalf. Just because the State's expert agrees with the claim group's expert does not automatically satisfy the State's threshold for a "credible basis" for a native title claim.  Further, the State represents the interests of all of the community.  In acting firmly and fairly (according to the Model Litigant Principles), the State must appropriately test all claims, particularly given that native title determinations affect proprietary rights.  The Model Litigant Principles do not create rights in third parties.

Author: Leonie Flynn, Expertise Counsel