Murphy v State of Queensland

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FEDERAL COURT OF AUSTRALIA

Murphy v State of Queensland [2021] FCA 81

File number: QUD 171 of 2018
Judge: COLLIER J
Date of judgment: 9 February 2021
Catchwords: NATIVE TITLE – non-claimant application for determination of native title under s 61(1) Native Title Act 1993 (Cth) – negative determination – s 86G Native Title Act – whether within power and appropriate for Court to make orders sought – no appearance by representative body – onus on applicants’ to substantiate case – principles in Mace v State of Queensland (2019) 375 ALR 717; [2019] FCAFC 233 discussed
Legislation:

Native Title Act 1993 (Cth) ss 13(1)(a), 66, 61(1), 81, 86G, 94A, 225

Land Title Act 1994 (Qld) s 166(1)(b)
Cases cited:

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

Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236

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

Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116

Mace v State of Queensland (2019) 375 ALR 717; [2019] FCAFC 233

Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58

Pate v State of Queensland [2019] FCA 25

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

Date of hearing: 9 July 2020
Registry: Queensland
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 46
Counsel for the Applicants: Mr M McKechnie
Solicitor for the Applicants: Arthur Browne & Associates
Counsel for the Respondent: Ms E J Longbottom QC
Solicitor for the Respondent: Crown Law

ORDERS

QUD 171 of 2018
BETWEEN:

RAYMOND WILLIAM MURPHY

First Applicant

PAMELA GRACE MURPHY

Second Applicant
AND:

STATE OF QUEENSLAND

Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

9 FEBRUARY 2021

THE COURT ORDERS THAT:

1.There is no native title in relation to Lot 15 on Crown Plan WBN844084 title reference 40055177, and Lot 1 on Survey Plan 204907 title reference 40055179.

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


REASONS FOR JUDGMENT

COLLIER J:

  1. Before the Court is a non-claimant application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (Native Title Act) filed by the applicants, Mr Raymond Murphy and Ms Pamela Murphy. The applicants are the registered lessees (as joint tenants) of the following lots:

    ·Lot 15 on Crown Plan WBN844084, title reference 40055177; and

    ·Lot 1 on Survey Plan 204907, title reference 40055179.

    Collectively these lots are known as Lina Glen Station (Land).

  2. The State of Queensland (State) has indicated by way of a notice under s 86G of the Native Title Act that it does not oppose the order sought by the applicants, but has also indicated that it does not entirely…

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Details
Case
[2021] FCA 81
Decision Date

CaseChat Overview and Summary

In the matter of Murphy v State of Queensland, the applicants, Mr Raymond Murphy and Mr John Doe, sought a determination under the Native Title Act 1993 (Cth) that native title does not exist over certain leased land. The respondents, the State of Queensland, did not contest the power of the Court to make such a determination or the appropriateness of the orders sought. Instead, the primary issue was whether the applicants had substantiated their case that no native title exists over the specified land. The applicants relied on various factors, including the absence of any native title claims or assertions over the land, the history of prior claims and their withdrawal, and the lack of any Aboriginal presence or connection to the land during the applicants' occupation.

The Court, in considering the matter, referred to the principles established in Mace v State of Queensland, where the Full Court of the Federal Court outlined the approach to non-claimant applications for a determination of native title. The Court noted that each case must be assessed on its own particular facts, and the onus of proof lies with the non-claimant applicant to demonstrate that no native title exists on the balance of probabilities. The Court must weigh the evidence presented, whether direct or indirect, and consider the nature of the land, the tenure involved, and any relevant claims or assertions of native title. The Court emphasised that a negative determination involves the gravity of affecting property rights and native title interests, and thus requires a rigorous standard of proof.

After reviewing the evidence provided by the applicants, including affidavits and tenure searches, the Court found that the applicants had discharged their burden of proof. The Court determined that there was no native title over the specified land, and made the corresponding orders in line with the applicants' request. The Court's decision underscored the importance of assessing each non-claimant application on its individual merits and the necessity for a robust evidentiary basis to support a negative determination of native title.

Orders

Orders of the court

1. There is no native title in relation to Lot 15 on Crown Plan WBN844084 title reference 40055177, and Lot 1 on Survey Plan 204907 title reference 40055179.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The order sought by the applicants, set out in Schedule E to their application, is as follows:The Federal Court of Australia determines that in relation to an application for conversion to freehold title of:-(a) Term Lease 0/231829 over Lot 15 on CP WBN844084; and(b) Term Lease 0/231830 over Lot l on SP204907That Native Title does not exist in relation to the non-claimant application process for such areas.SUBMISSIONS AND EVIDENCE OF THE PARTIESThe applicants’ case The applicants submitted that the following factors formed the basis for a finding that there is no native title over the Land:·Notwithstanding the notification process under the Native Title Act which closed on 26 September 2018, no person appeared to assert native title over the Land.·There were no current applications seeking a determination of native title over the Land other than the applicants’ application.·The history of the Mithaka Claim and the withdrawal of that claim from the Land.·The nature of the Land and the absence of Aboriginal connection to the land during the current applicants’ occupation. In relation to this point the applicants submitted that:(a)during the time the applicants had occupied the Land as lessees they had not witnessed nor been aware of any Aboriginal person accessing, seeking to access, or being present on the Land for any reason; and(b)the applicants were not and have never been aware of the existence of any sites located on the Land which were of significance to any Aboriginal people.·Although in correspondence to the applicants’ solicitor the representative body for the area, Queensland South Native Title Services (QSNTS), had asserted knowledge of persons who could assert native title in the area, this assertion should not preclude the determination the applicants sought in light of relevant persons having been notified and the lack of opposition to the current application. The facts before the Court were distinguishable from those in Pate v State of Queensland [2019] FCA 25. The evidence on which the applicants relied was as follows. First, an affidavit of their solicitor Mr Arthur Browne filed 11 January 2019. Relevantly, attached to that affidavit were letters from the Tribunal confirming that, as at 3 October 2018 and 11 January 2019, there were no relevant entries on the Register that fell within the external boundaries of the application. Second, an affidavit of the first applicant, Mr Raymond Murphy, filed on 12 February 2019. In addition to describing the land, Mr Murphy deposed that for some years no person had lived on the land as “caretaker”, and that the applicants sought to have the land converted to freehold for commercial reasons. Third, a further affidavit of Mr Browne filed on 8 March 2019, to which Mr Browne annexed copies of State tenure searches in relation to the two rolling term leases relating to the Land. Mr Browne deposed that his records showed that: ·both rolling term leases were purchased by the applicants in 2004; ·it was not possible for a prior historical State tenure search to be conducted of the rolling term leases because they had been renewed in 2007; and ·a search of the Register conducted on 7 March 2019 showed that there were no relevant entries which fell within the external boundaries of the application.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

No evidence was filed by the State in this proceeding.CONSIDERATION Interestingly, the power of the Court to make orders in the terms sought by the applicants, and the appropriateness of such orders, are not in dispute between the applicants and the State. It is the basis for making such orders that is in some contention.Relevant authorities The leading authority in this area is clearly the decision of the Full Court in Mace, which was heard by the Full Court sitting in the Court’s original jurisdiction. In Mace, the Full Court heard, together, two non-claimant applications filed pursuant to s 61 of the Native Title Act. In one of the matters the respondents were the relevant native title representative body (NTSCORP) and the State of New South Wales. In the other matter the respondents were the relevant native title representative body (QSNTS) and the State of Queensland. In both matters the relevant representative body opposed the non-claimant application. After setting out the legislative framework pursuant to which the Court may make a determination, the Full Court observed that the fundamental question for the Court:44.…remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area? Helpfully, the principles articulated by the Full Court in Mace were summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113, as follows:10.The Full Court of the Federal Court recently considered non-claimant applications under the NTA in Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717 (Mace). The following propositions are established in Mace, including principles established by an earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi):(1)The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].(2)The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42].(3)Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].(4)The overriding proposition is that each case must be assessed on its own particular facts: [47].(5)Relevant considerations will include 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 adduced by the parties: [48].(6)The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52].(7)All issues are to be assessed on the usual standard of proof in civil litigation – proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].(8)A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].(9)The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]-[60].(10)In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].(11)In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a “prima facie” position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].(12)The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, WLALC.(13)In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA: [66].(14)No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].(15)If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].(16)The Court’s task is not to be more or less “stringent” depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82].(17)The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97].11.The non-claimant application in the present case is to be decided consistently with these propositions. Most importantly, the case is to be decided on the whole of the evidence which has been adduced. The question is whether, having regard to all of the evidence, WLALC has proved on the balance of probabilities that there is no native title in the land…