Determination that native title does not exist in relation to land in rural Queensland

In brief

The case of James Speed Company Pty Ltd v State of Queensland [2022] FCA 626 concerned an application under section 13(1)(a) (Approved determinations of native title) and section 61(1) (Native title and compensation applications) of the Native Title Act 1993 (Cth) (NT Act) in the Federal Court of Australia (Court) for a determination that native title does not exist (Determination Application) in relation to land of approximately 30,900 hectares and described as "North Delta" located south-east of Barcaldine, Queensland (Subject Land).

The Applicant is the lessee of a registered rolling term lease (Rolling Term Lease) as defined under section 164 (What is a rolling term lease) of the Land Act 1994 (Qld) and thus has an "interest" as defined in subsection (a) of the definition under section 253 (Other definitions) of the NT Act in the Subject Land as a leaseholder (at [28]).

The application was "unopposed" in that the only other party, being the State of Queensland (State), had filed a notice stating that it does not oppose the order sought by the Applicant (see [3], [19], [20], and section 86G(2) (Unopposed applications) of the NT Act).

The Court considered whether the Applicant had established, on the balance of probabilities, that no native title exists in relation to the Subject Land having regard to the facts of the case, including the nature of the Subject Land and the tenure of the Applicant's interest in the Subject Land, whether any present or previous native title claim exists, and the evidence adduced by the parties, as well as the gravity of a negative determination, which has a permanent effect on native title rights and interests (at [22]).

The Court was satisfied that the Applicant had discharged its onus and held that native title does not exist in relation to the Subject Land.

Background

The Rolling Term Lease was initially granted for a term of 30 years on 1 April 1963, but was later extended to expire on 31 March 2056 (at [6]).

In June 2022, the Applicant applied to the Queensland Department of Resources to convert the Rolling Term Lease to freehold title. To address any matters relating to native title, the Applicant filed the Determination Application (at [7]).

The Determination Application was publicly notified by the National Native Title Tribunal in April 2021 and identified a public notification period from 5 May 2021 to 4 August 2021 (at [8]).

A search of the Native Title Claims Register (NT Register) in August and September 2021 indicated that the Subject Land had been the subject of five previous native title claims on behalf of the Bidjara People, all of which had either been withdrawn, discontinued, or dismissed (see [10] and [13]).

Principles for determining native title claims 

The Court observed at [23] the following principles having regard to the case of Mace v State of Queensland [2019] FCAFC 223; 274 FCR 41 (Mace Decision):

• "At one end of the evidentiary scale, there may be no need to go beyond proof of an extinguishing grant of freehold title" (see also [49] of the Mace Decision).

• "At the other end are contested cases in which an Indigenous respondent gives evidence about that person's connection, under traditional law and custom, to the land in question" (see also [51] of the Mace Decision).

• "Where there is no evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which could 'cast doubt' on the case brought by the applicant that no native title exists" (see also [51] of the Mace Decision).

• "The Court must act on evidence and does not speculate about the possibility of the existence of native title rights and interests…As such, an application for a negative determination does not involve any general enquiry into what native title rights and interests may have existed at the time of sovereignty, or effective sovereignty; nor any general inquiry into how those rights and interests may or may not have continued" (see also [52] to [55] of the Mace Decision).

No native title exists in respect of the Subject Land

The Determination Application was unopposed and accordingly the Court was permitted, under section 86G(1) of the NT Act, to make an order on the papers that no native title exists because it was satisfied of the following:

• Notice requirement – The notice period under section 66 (Notice of application) of the NT Act expired on 4 August 2021 (at [27]).

• Power requirement – The Court has the power to make a determination because it is within the meaning of "determination of native title" under section 13(1)(a) of the NT Act, there is no "approved determination of native title" in relation to the Subject Land as required under section 13(1)(a) and section 61A(1) (Restrictions on making of certain applications) of the NT Act, the Applicant has an interest in the Subject Land, and the Court has jurisdiction under section 81 of the NT Act to determine applications filed in the Court that relate to native title (at [28]).

• Appropriateness requirement – The Court held that it is appropriate to make an order that no native title exists in relation to the Subject Land because "…there is no native title that continues to exist in respect of the determination area", which was evidenced by no response to the public notification of the Determination Application, no entry of native title in the NT Register, no one joining as a respondent to the proceeding to assert that native title exists, and the previous findings in the case of Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 and in the Mace Decision that no native title exists in relation to the Subject Land (see [29] to [34]).

In the context of the appropriateness requirement, the Court observed that it can reasonably expect a representative Aboriginal and Torres Strait Islander body for a particular area with knowledge or information about potential native title holders to come forward and provide that information to the Court (at [31], see also [94] of the Mace Decision).

Conclusion

The Court was satisfied, on the balance of probabilities, that native title does not exist in relation to the Subject Land.