FEDERAL COURT OF AUSTRALIA

Blackwater Accommodation Village Pty Ltd v State of Queensland [2011] FCA 355

THE COURT ORDERS THAT:

No native title exists in relation to Lot 1 on SP235822 county of Humbolt, parish of Blackwater as shown on the Annexure to these orders marked “A”.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    I have before me a non-claimant application under s 61(1) of the Native Title Act 1993 (Cth) (the Act). The application is made by Blackwater Accommodation Village Pty Ltd as trustee for the BAV Trust. The applicant seeks to make the application area, identified in Schedule A of the application, subject to s 24FA protection for the purposes of Pt 2 Div 3 Subdiv F of the Act. The area of land is approximately 14 hectares, described as Lot 1 on Survey Plan 235822 in the centre of the township of Blackwater in the Central Highlands region of Queensland. The only other party to the proceeding is the State of Queensland.

2    In summary, the applicant seeks an order containing a determination that native title does not exist in relation to this land. The applicant currently holds a trustee lease over part of the application land, granted by the Central Highlands Regional Council as trustee under the Land Act 1994 (Qld) (the Land Act). On this land, the applicant has constructed an extensive accommodation facility providing accommodation and related services to mine workers and other visitors to the Blackwater community. The existing trustee lease expires on 21 March 2015. The applicant seeks secure replacement tenure for the accommodation facility, and also secure tenure over a larger area (namely the application land), in order to expand the facility.

3    On 12 June 2009 the applicant applied to the Department of Environment and Resource Management in the state of Queensland for the grant of a term lease under the Land Act over the whole of the application land. There has been correspondence between the parties, including letters from the department to the applicant, advising that the department is prepared to make an in principle offer to lease the land to the applicant, subject to, inter alia, native title issues being satisfactorily addressed.

4    It is not in dispute that the applicant is qualified to make this application as a “person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought” within the meaning of s 61(1) of the Act and in terms contemplated by Madgwick J in Kanak v Minister for Land and Water Conservation (2005) 106 FCR 31. In particular, at the time the application was filed (30 June 2010), it was not in dispute that the applicant held the following non-native title interests:

(a)    a legal interest in part of the application area, namely as lessee under the trustee lease;

(b)    an equitable interest in the whole of the application area, on the basis of the enforceable agreement for lease between the applicant and the Department, arising from the Department’s in principle offer, the applicant’s acceptance of that offer and the performance of certain “offer requirements”; and

(c)    the right or privilege over or in connection with the application land, arising from the grant of development approval from the Central Highlands Regional Council for the expansion of the accommodation facility.

5    There is evidence before the Court in the affidavit of Mr Oliver Gilkerson that notices required by s 66(3) of the Act have been given, that no native title determination application of the application land exists, and that there has been no determination of native title over the land. No native title claimant has sought to become a party to this application, appear before the Court or notify any interest in relation to the application land. I note this morning in Court that Ms Bowskill tendered a copy of correspondence between Queensland South Native Title Services (QSNTS) and Mr Gilkerson. However, I note that there has been no appearance by QSNTS today, no claim has been filed by QSNTS on behalf of any party, and in my view, no claim has been notified in any fashion to this Court.

6    Ms Bowskill for the applicant has submitted that the absence of native title in the application land can appropriately be inferred from the following:

1.    the applicant has complied with the formal requirements for a non-claimant application.

2.    all necessary notices have been given by the National Native Title Registrar, including public notification and notification to QSNTS.

3.    no person or persons claiming or asserting a native title interest has sought to become a party, or otherwise participate at the hearing or notify an interest.

4.    prior to filing the application, the applicant endeavoured to engage directly with persons claiming to hold native title in the application area, and received no response.

5.    previous claimant applications registered over areas which included the application land were dismissed on 1 September 2009 (namely Kangoulu People QUD 6195/98 and Ghungalu People QUD 6226/98) and on 23 October 2008 (namely East Comet/West Dawson People QUD 79/05).

6.    there is no evidence as to the existence of any native title in relation to the application land.

7    In Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Ltd [2006] FCA 1184 at [11] Bennett J observed that an applicant was entitled to the determination of no native title in circumstances where, inter alia, there is no evidence before the Court of any native title interests in the land, the provisions of the Native Title Act have been complied with, relevant searches undertaken, and no assertion of rights have been made. These observations appear equally applicable to the facts before me.

8    Finally, the State of Queensland has signed a minute of consent order in relation to an order in terms sought by the applicant, which minute has been filed in these proceedings. Section 86G(1) of the Act empowers the Court to make an order in or consistent with the terms sought by the applicant where, inter alia, the application is unopposed, the Court is satisfied that the order sought is within the power of the Court, and it appears appropriate to do so. It is clear that the Court has power to make the order sought by the applicant in these proceedings, having regard to ss 81, 86G, 94A and 225 of the Act. In my view, in light of the evidence before the Court and the minute of consent order filed, it is appropriate to make the order sought.

9    The court orders that no native title exists in relation to lot 1 on SP235822, County of Humboldt, parish of Blackwater, as shown in the annexure to these orders, marked “A”.

Associate:

Dated:    13 April 2011