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Editors --- "Noel John Michael Kennedy v State of Queensland - Case Summary" [2002] AUIndigLawRpr 32; (2002) 7(2) Australian Indigenous Law Reporter 32

Court and Tribunal Decisions – Australia

Noel John Michael Kennedy v State of Queensland

Federal Court of Australia (Sackville J)

13 June 2002

[2002] FCA 747

Native title — application pursuant to s 86G of the Native Title Act 1993 (Cth) — 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 — whether application ‘unopposed’

Facts:

The holder of a pastoral lease of a property near Winton in Queensland, applied pursuant to s 86G of the Native Title Act 1993 (Cth) (the Act) for an order that native title did not exist in relation to the land known as Castle Hill Holding. Section 86G of the Act empowers the court to make certain orders in unopposed applications. The State of Queensland was a party and had notified the Court in writing that it did not oppose the order in the terms sought by the applicant. Before the notification of the non claimant application, the Koa People instituted a separate claimant application under s 61 of the Act asserting native title interests over Castle Hill Holding, and were joined as respondents to the applicant’s non claimant application. Subsequently, leave was granted to the Koa People to withdraw as a party to the proceedings and to discontinue the claimant proceedings. The Koa People did not formally notify the court in writing that they did not oppose an order in the terms sought by the applicant.

Held:

1. The jurisdictional preconditions for an order under s 86G reflect those set for obtaining an order under s 87(1) of the Act:

(a) the non claimant application must be ‘unopposed’ as that term is defined in s 86G(2) of the Act; and
(b) an order in, or consistent with, the terms sought by the applicant must be within the power of the Court: [20]-[21].

Gunggari People v State of Queensland [2001] FCA 1229 considered.

2. Following the withdrawal of the Koa People from the non claimant proceedings, the only remaining party was the State of Queensland. The State had indicated in writing that it did not oppose the order sought by the applicant. On the face of it, the definition of ‘unopposed’ in s 86G(2) of the Act was therefore satisfied: [22].

3. If s 84(3) of the Act applies to the Koa People because their interests might be affected by a determination in the non claimant proceedings, its effect is to deem them to be parties to the proceedings: [24]. Gunggari People v State of Queensland [2001] FCA 1229, at [8]-[10] applied.

4. Section 86G(1) of the Act applies if ‘at any stage of a proceeding’ the application is unopposed. Although s 84(3) of the Act at one time may have deemed the Koa People to be parties to the application, the subsection no longer had that effect once the Koa People exercised their right to withdraw, by leave, from the proceedings pursuant to s 84(7) of the Act. Section 84(3) cannot have been intended to deem a person to be a party to an application where that party has withdrawn from the proceedings in a manner specifically contemplated by s 84(7): [26].

5.The general principles referred to by Emmett J in Gunggari People v State of Queensland [2001] FCA 1229 at [22], [28] and [29], can be applied with necessary adaptations, to applications under s 86G(1) of the Act: [30]-[31]. Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 at [20]- [21] referred to.

6. The following factors indicated that it was appropriate to make the order sought by the applicant:

(a) The Koa People had discontinued their claimant application and withdrawn, by leave, as parties to the non claimant application.
(b) In the absence of anything to suggest that native title interests may subsist over the land, it was consistent with the statutory objects for these proceedings to be brought to finality using the mechanism provided by Parliament.
(c) The only evidence before the Court strongly suggested that there were no native title interests over Castle Hill Holding: [32]-[33].

Order:

Native title does not exist in relation to all that land known as Castle Hill Holding. ?