Appleton v State of Queensland

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FEDERAL COURT OF AUSTRALIA

Appleton v State of Queensland [2023] FCA 45  

File number(s): QUD 29 of 2022
Judgment of: SARAH C DERRINGTON J
Date of judgment: 2 February 2023
Catchwords: NATIVE TITLE – non-claimant application for determination of native title under s 61(1) of the Native Title Act 1992 (Cth) (‘NTA’) – determination sought under s 86G of the NTA that no native title exists over the determination area – whether within power and appropriate to make orders sought – order made in terms sought  
Legislation:

Native Title Act 1993 (Cth) ss 13, 61, 66, 81, 86G, 225

Land Act 1994 (Cth) s 164

Cases cited:

Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1507

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466

James Speed Company Pty Ltd v State of Queensland [2022] FCA 626

Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41

Mudgee Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 668

Murphy v State of Queensland [2021] FCA 81

Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113

Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320

Wyman and others on behalf of the Bidjara People (No 6) v State of Queensland

Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777

Division: General Division
Registry: Queensland
National Practice Area: Native Title
Number of paragraphs: 27
Date of hearing: Determined on the papers
Solicitor for the Applicants: Thynne & Macartney
Solicitor for the Respondent:

Crown Law

ORDERS

QUD 29 of 2022
BETWEEN:

WILLIAM DALE APPLETON

First Applicant

KRISTINE MARGARET APPLETON

Second Applicant

RICHARD FREDERICK JOHN APPLETON (and others named in the Schedule)

Third Applicant
AND:

THE STATE OF QUEENSLAND

Respondent

ORDER MADE BY:

SARAH C DERRINGTON J

DATE OF ORDER:

2 FEBRUARY 2023

THE COURT ORDERS THAT:

1.There is no native title in relation to the land and waters that are described as Lot 4724 on Survey Plan 273900 located in the Barcaldine Regional Council in the State of Queensland.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

  1. This is an application made pursuant to s 13(1) of the Native  Title Act 1992 (Cth) (NTA) for determination of native title under s 61(1) of the NTA filed by the applicants, William Dale Appleton, Kristine Margaret Appleton, Richard Frederick John Appleton, Anna Jacqueline Appleton, Loid Stephen Giles Appleton and Zaviera Louise Appleton (Applicants).

  2. The Applicants seek a determination that native title does not exist in relation to Lot 4724 on Survey Plan 273900, located in the Barcaldine Regional Council area in the State of Queensland (Land).

  3. The State of Queensland (Respondent) is the only respondent to the application. No appearance has been…

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Details
Case
[2023] FCA 45
Decision Date

CaseChat Overview and Summary

The case of Appleton v State of Queensland involved an application by the Applicants, who hold a lease over certain land, for a determination of native title under the Native Title Act 1992 (Cth). The Applicants applied for a determination that no native title exists over the land in question, as required by a condition attached to an offer to convert their lease to freehold title. The State of Queensland did not oppose the application, and the matter was determined by the Federal Court without a hearing. The central legal issue was whether the Court had the power to make the order sought by the Applicants and whether it was appropriate to do so without a hearing. The Court found that it did have the power to make the order and that it was appropriate to do so in this case.

The Federal Court examined the legislative framework for native title determinations and found that the Applicants had discharged their onus of proving, on the balance of probabilities, that no native title exists over the land. The Court noted that the application was unopposed and that the State of Queensland had notified the Court in writing that it did not oppose an order in, or consistent with, the terms sought by the Applicants. The Court also considered that it was appropriate to make the order without holding a hearing, as the application was unopposed and the Applicants had provided sufficient evidence to establish that no native title exists over the land. The Court concluded that it was within its power to make the order sought by the Applicants and that it was appropriate to do so in these circumstances.

The Federal Court made an order that no native title exists in relation to the land and waters described as Lot 4724 on Survey Plan 273900, located in the Barcaldine Regional Council in the State of Queensland. The Court noted that its order would need to comply with section 94A of the NTA, which deals with the requirements of native title determination orders. The Court found that the Applicants had discharged their onus of proving, on the balance of probabilities, that no native title exists over the land, and that it was appropriate to make the order without holding a hearing. The Court's order is in line with the terms sought by the Applicants, and the State of Queensland did not oppose the application. The Applicants have now satisfied the condition attached to the offer to convert their lease to freehold title, and can proceed with that application.

Orders

Orders of the court

1. There is no native title in relation to the land and waters that are described as Lot 4724 on Survey Plan 273900 located in the Barcaldine Regional Council in the State of Queensland.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons given below, I consider it appropriate to determine the matter without a hearing and for the application to be allowed.BACKGROUND The Applicants are the registered lessees of the Land which is subject to a rolling term lease within the meaning of s 164 of the Land Act 1994 (Cth). The lease was initially granted for a term of 30 years commencing on 1 July 1976, expiring on 30 June 2006. It was extended to 30 June 2056. On 10 May 2021, the Applicants applied to the Queensland Department of Resources (Department) to convert the lease over the Land to freehold title. On 15 October 2021, the Department provided the Applicants with an Offer to convert a lease under Land Act 1994 (Cth) (Aff-MSB, Annexure MSB-1). A condition of that offer requires the Applicants to address native title by either filing a non-claimant application with this Court which is successful or, by successful negotiation and registration of an Indigenous Land Use Agreement. On 4 February 2022, the Applicants filed a non-claimant application for determination by this Court under s 61(1) of the NTA. LEGISLATIVE FRAMEWORK Section 61(1) of the NTA sets out applications that may be made, and the persons who may make them. Item (2) of the section provides that “a person who holds a non-native title interest in relation to the whole of the areas in relation to which the determination is sought” is such a person. Section 253 of the NTA defines a non‑claimant application to mean a native title determination application that is not a claimant application and defines interest to include, in relation to land or waters, “a legal or equitable estate or interest in the land or waters”. This application is unopposed. The only respondent to the proceeding, the State of Queensland, has filed a notice in accordance with s 86G(2) of the NTA stating that the State does not oppose an order in, or consistent with, the terms sought by the applicant. In those circumstances, s 86G(1) is applicable. Section 86G of the NTA provides that: Unopposed applications Federal Court may make order (1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66: (a) the application is unopposed; and (b) the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court; the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). Meaning of unopposed (2) For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, the applicants have discharged their onus of establishing, on the balance of probabilities, that native title does not exist over the Land. CONCLUSION The appropriate order is that native title does not exist over the Land.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.