Kennedy v Queensland

Case [2002] FCA 747

FEDERAL COURT OF AUSTRALIA

Kennedy v State of Queensland [2002] FCA 747

NATIVE TITLE – application pursuant to s 86G of the Native Title Act 1993 (Cth) for an order that native title does not subsist over property subject to a pastoral lease – jurisdictional preconditions for the making of such an order – factors to be considered in the exercise of the discretion.

Native Title Act 1993 (Cth), ss 4(c), 13(1)(a), 61, 66(3)(a), 86G, 87, 225, 253, Pt 11
Land Act 1910 (Qld), s 40(2)(d)
Land Act 1962 (Qld)

Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229, applied.
Members of the Yorta Yorta Aboriginal Community v State of Victoria (1999) 4 AILR 91, cited.
Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244, cited.
Application by the Metropolitan Local Aboriginal Land Council [2001] FCA 605, cited.
Applications by the Deniliquin Land Council [2001] FCA 609, cited.
Darkinjung Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2001] FCA 1124, cited.
Kelly on behalf of the Byron Bay Bundjalong People v NSW Aboriginal Land Council [2001] FCA 1479, cited.
Wik Peoples v Queensland (1996) 187 CLR 1, cited.
Mabo v Queensland (No 2) (1992) 175 CLR 1, cited.

S Beesley, “The Role of the Federal Court when Parties Reach Agreement: s 87 of the Native Title Act 1993” (2001) 5:1 Native Title News 5

NOEL JOHN MICHAEL KENNEDY v STATE OF QUEENSLAND
QG 6303 of 1998

SACKVILLE J
SYDNEY
13 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

QG 6303 of 1998

BETWEEN:

NOEL JOHN MICHAEL KENNEDY
APPLICANT

AND:

STATE OF QUEENSLAND
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

13 JUNE 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Native title does not exist in relation to all that land known as Castle Hill Holding being Lot 4721 on Crown Plan PH1874 situated in the County of Wokingham, Parish of Calista (tenure reference PH45/4721).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

QG 6303 of 1998

BETWEEN:

NOEL JOHN MICHAEL KENNEDY
APPLICANT

AND:

STATE OF QUEENSLAND
RESPONDENT

JUDGE:

SACKVILLE J

DATE:

13 JUNE 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE APPLICATION

  1. This is an application by the holder of a pastoral lease of a property near Winton in Queensland, pursuant to s 86G of the Native Title Act 1993 (Cth) (“Native Title Act”), for an order that

    “native title does not exist in relation to all that land known as Castle Hill Holding being Lot 4721 on Crown Plan PH1874 situated in the County of Wokingham, Parish of Calista (tenure reference PH45/4721).”

    I shall refer to the relevant land as “Castle Hill Holding”.

  2. The present proceedings were commenced on 3 December 1998 as a non-claimant application for a native title determination…

Continue reading Kennedy v Queensland

Sign in free to access the full text

Details
AGLC
Kennedy v Queensland [2002] FCA 747
Case
[2002] FCA 747
Decision Date

CaseChat Overview and Summary

The case of Kennedy v Queensland involves the applicant, Kennedy, seeking a declaration that native title does not exist in relation to Castle Hill Holding, a property in Queensland. Kennedy filed an amended motion under section 86G of the Native Title Act, which the State of Queensland did not oppose. The Gurang Land Council, initially involved, withdrew from the proceedings, leaving Kennedy and the State of Queensland as the key parties. The Federal Court of Australia was tasked with deciding the legal issues presented.

The primary legal issue before the court was whether native title existed in relation to Castle Hill Holding, considering the extensive historical use and occupation of the land by Kennedy and his predecessors. Kennedy argued that the continuous pastoral use and occupation of the land by non-Indigenous people since the mid-1880s negated any potential native title rights. The court had to weigh the historical evidence of land use and occupation against the statutory provisions of the Native Title Act, which recognise native title rights subject to certain extinguishments.

The court considered the evidence provided by Kennedy, which included detailed affidavits about the tenure history of Castle Hill Holding and the continuous pastoral use of the land since the mid-1880s. Kennedy's evidence was uncontradicted and detailed the substantial improvements on the property, the continuous occupation by non-Indigenous people, and the absence of any public or private use by Indigenous people since 1952. The court concluded that the evidence demonstrated that the land had been under continuous use and occupation by non-Indigenous people, effectively extinguishing any native title rights. The court found that the extensive historical use and occupation of the land by Kennedy and his predecessors sufficiently met the criteria for extinguishing native title under the Native Title Act.

The Federal Court of Australia made an order declaring that native title does not exist in relation to all that land known as Castle Hill Holding. The court found that the continuous pastoral use and occupation of the land by non-Indigenous people since the mid-1880s constituted a sufficient basis for extinguishing any native title rights. This decision was based on the extensive historical evidence provided by Kennedy, which the court deemed sufficient to extinguish native title rights under the Native Title Act.

Orders

Orders of the court

Native title does not exist in relation to all that land known as Castle Hill Holding being Lot 4721 on Crown Plan PH1874 situated in the County of Wokingham, Parish of Calista (tenure reference PH45/4721).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 15 March 2002, the applicant filed an amended motion seeking the order under s 86G of the Native Title Act to which reference has been made (see [1] above). The motion and the affidavits in support have been duly served on the Gurang Land Council, notwithstanding the withdrawal of the Koa People from the proceedings. The State of Queensland, as I have already noted, has notified the Court that it does not oppose the order sought in the amended motion.THE EVIDENCE The evidence read in support of the applicant’s motion addressed the history of the proceedings and the “tenure history” of Castle Hill Holding. I have recounted the history of the proceedings so far as is relevant. It is not necessary to recite the detail of the tenure history. It is enough to say that with the exception of some brief periods, since about the mid 1880s Castle Hill Holding has been the subject of runs, pastoral holdings or leases and occupational licences. Until 1950, Castle Hill Holding, for the most part, was included within much larger leasehold or licence areas. There was a short hiatus from September 1950 until January 1952, when the applicant was granted the Preferential Pastoral Lease currently in force. During this period Castle Hill Holding was made available for preferential pastoral holding (a form of pastoral tenure that requires the holder to reside on the property for the first seven years of the lease: see Land Act 1910 (Qld), s 40(2)(d)) and it apparently took about fifteen months for the grant to be made. The applicant swore a detailed affidavit outlining his own activities on Castle Hill Holding, the extent to which he was aware of Aboriginal contact with the land and his knowledge of the use of the land in earlier times. The principal points to emerge from the applicant’s evidence (which of course was uncontradicted) are these: at the time he acquired the holding through a land ballot in 1951, there were substantial improvements on Castle Hill Holding, including substantial boundary fencing, buildings and dams; some fencing on the holding dated from approximately the 1880s and other fencing from about the First World War, a conclusion the applicant drew from the nature of the fencing materials and the extent of their deterioration; during the applicant’s first five years of occupation, his main focus was on fencing the property, work he largely carried out himself; from the beginning of his occupation, Castle Hill Holding was a working pastoral property stocked with cattle and, from 1958, with sheep; it was possible that some men of Aboriginal descent may have worked for contractors on Castle Hill Holding prior to 1970, usually carrying out fencing or maintenance or acting as stockmen, but they were on the property only for short periods; to the applicant’s knowledge no persons of Aboriginal descent had been present on Castle Hill Holding since 1952 except for work; after 1962, the applicant had never employed anyone of aboriginal descent on Castle Hill Holding; the only public means of access to Castle Hill Holding was the Winton-Boulia highway; the old stock route which crosses the northeast corner of Castle Hill Holding had not been used since 1952; and apart from employees and contractors, the only people who had access to Castle Hill Holding from time to time were commercial kangaroo hunters, none of whom was of Aboriginal descent.

Decision

Reasons for decision

SACKVILLE J
In these circumstances, I am satisfied that it is appropriate to make an order in the terms sought by the applicant.CONCLUSION The applicant has satisfied me that an order should be made, pursuant to s 86G(1) of the Native Title Act that native title does not exist in relation to Castle Hill. I propose to make that order.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.