Native Title Year in Review 2023-2024

What you need to know

• In Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 4) [2024] FCA 425 the Federal Court made a negative determination of native title in relation to land in central Queensland.
• A negative determination is a formal finding that native title does not exist (as opposed to simply dismissing an unsuccessful native title claim).
• The Federal Court reminded us of the test for making a negative determination and the factors that should be considered in the exercise of its discretion.

What you need to do

• Be aware that the Court may be willing to make a negative determination (rather than simply dismissing an unsuccessful claim), even if the only party seeking it is a third-party respondent and not the State.
• Consider the impact of any negative determination on your interests in the determination area — existing and future grants, compensation liability and any previous agreements reached with the claim group.
• Watch for the outcome of the appeal filed by the Gaangalu People.

Court makes negative determination at the request of respondents in the face of a neutral stance by the State

In Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 4) [2024] FCA 425 (Gaangalu Determination), the Federal Court was asked to make a negative determination in relation to land in central Queensland on the submission of two respondents (but not the State).

Court had previously found that native title didn't exist

The Gaangulu claim related to approximately 25,000 square kilometres of land on the east and west of the Dawson River in Central Queensland. In June 2023, after a contested hearing of separate questions regarding connection, the Court made a finding that native title did not exist in relation to the whole of the claim area (Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600).

Specifically, the Court found that as at the date of effective sovereignty in the mid-1850s, the Gaangalu people held rights and interests to parts of the claim area to the west of the Dawson River (but not to most of the east of the claim area). However, their observance and acknowledgement of those rights and interests had not continued to the present day, and thus native title no longer existed.

Two respondents sought a negative determination, and the State did not take a position

Commonly, in situations where adverse findings about native title are made, native title claimants will ask the Court to simply dismiss their application rather than make a negative determination. That was the case here.

However, two respondents (the Woorabinda Aboriginal Shire Council and Woorabinda Pastoral Company) — but not the State — made submissions seeking a negative determination in relation to the land west of the Dawson River. This was opposed by the claim group and the Representative Body.

The Court was somewhat critical of the State's approach in declining to take a position on the merits of the negative determination application, noting that the Court lacked the assistance it was entitled to expect from the State in determining the appropriate orders.

Test for making a "negative determination" has two limbs

The Court said that it was well established that where the evidence fails to prove the existence of native title in an area, a discretion may arise to determine that native title does not exist. However, that discretion does not arise unless the Court is first satisfied on the balance of probabilities that native title does not exist in relation to that area (CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] 204 FCAFC 67 (Badimia)).

The Court noted that no party was seeking a "negative determination" in relation to the land to the east of the Dawson River. In the earlier 2023 decision, the Court had not been required to make findings as to which group held rights and interests in respect of that area at sovereignty and had only held that the Gaangulu People did not. Therefore, the Court was not satisfied that native title does not exist in that area, and the pre-condition for making a negative determination had not been met in relation to it.

The situation was different for the land to the west of the Dawson River. The Court was satisfied that, at sovereignty, it was the Gaangalu people alone who occupied and held rights and interests under traditional laws and customs to this area. Given that the Court found that they had lost their connection and could not establish their native title, the Court was satisfied on the balance of probabilities that native title does not continue to exist in the claim area west of the Dawson River.

Court says respondents entitled to seek negative determination even if they didn’t actively participate in the hearing

The Court then considered the exercise of discretion as to whether a negative determination should be made in respect of the whole of the claim area west of the Dawson River. The claim group and the Representative Body made a number of submissions against the exercise of discretion in this case.

The representative body initially submitted that the respondent parties were only entitled to relief for the geographic area of their interest in the claim area. They ultimately withdrew this submission.

Nevertheless, the Court made it clear that the respondents were entitled to make submissions for the whole of the claim area and have those submissions assessed on their merits. Furthermore, the fact that they played no active role in the contested hearing did not mean that their submissions should be given less weight or rejected. The Court noted that the Native Title Act contemplates the making of a negative determination even without the submission of any respondent party.

In addition, the fact that the State did not take a position on the issue was of little relevance to the Court. It said that any submissions made by the State would have to be judged on their merits, just like the submissions of any other parties.

Finally, the Court considered that a negative determination in respect of the western part of the claim area would assist to avoid a multiplicity of proceedings. There is also public interest in certainty concerning the native title status of particular areas after a finding that native title does not exist.

The Court held that, in the circumstances of the case, it was appropriate to give weight to that aspect of the public interest by making a negative determination in respect of the claim area to the west of the Dawson River.

Gaangalu appeal

On 28 May 2024, the Gaangulu People filed an appeal against the decision and the negative determination.

Key Insights

Negative determination available even when the State doesn't support it

The Federal Court made it clear that it was willing to make a negative determination (rather than simply dismissing the unsuccessful claim), even if the only party seeking it is a third party respondent and not the State.

This is one of only a small number of negative determinations around Australia. Earlier cases had tested the power of the Federal Court to make a negative determination, but the Full Court set this issue to rest in Badimia by making it clear that the Court could do so.

Implications of a negative determination

The key consequences of a negative determination are:

• There can be no further native title claims over the determination area;
• For existing grants and interests: there can be no claim of invalidity under the Native Title Act;
• For new grants: the procedures under the Native Title Act will not apply;
• No compensation is payable under the Native Title Act (unless the claim group can show that native title existed at the time of the relevant compensable act and connection was lost at some later date).

Importantly, a negative determination does not necessarily affect the rights of Traditional Owners in relation to the protection of Indigenous cultural heritage and to be consulted about projects that affect them.

Whether a negative determination will impact an agreement entered into by the native title party will depend on the terms of that agreement. We write about this issue in our Native Title Year in Review 2023-2024 article "Federal Court considers doctrine of frustration in the context of native title agreement".

Want to know more? 

• Proving connection becomes harder in 2021 (11 July 2022) - Outlines connection decisions in 2020-2021.
• Federal Court considers doctrine of frustration in the context of native title agreement (6 June 2024) - Deals with a recent decision about frustration of native title agreements. 

Authors: Martin Doyle, Lawyer and Leonie Flynn, Expertise Counsel.