Federal Court of Australia

Bartolo v State of Queensland [2022] FCA 100

ORDERS

THE COURT ORDERS THAT:

1.    There is no native title in relation to the land that is described as Lot 1 on Survey Plan 181888 located in the Barcaldine local government area in the State of Queensland.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    This is an application made pursuant to s 13(1) of the Native Title Act 1993 (Cth) (NTA) for a determination of native title under s 61(1) of the NTA filed by the applicants, Loraine and George Bartolo. The applicants seek a determination that native title does not exist in relation to Lot 1 on Survey Plan 181888, located in the Barcaldine local government area in Queensland (the Land). The applicants are the registered lessees of the Land.

2    The State of Queensland is the only respondent to the application. There was no appearance by any other party. The State of Queensland has indicated by way of a notice under s 86G of the NTA that it does not oppose an order in, or consistent with, the terms sought by the applicant.

3    The evidence relied on in support of the application is an affidavit of Loraine Jeanette Bartolo sworn 15 December 2021 (LJB) and an affidavit of Erin Louise Sellentin sworn 16 December 2021 (ELS).

4    Without objection, the applicant tendered an email sent from the Queensland South Native Title Service (QSNTS) to the solicitors for the applicants dated 8 February 2022 (Ex 1) and a map produced by the Department of Resources dated February 2022 depicting the area the subject of this application and the areas covered by the Bidjara People #5 claim, the Bidjara People #7 claim, the Kanolu People #1 claim, and the Kanolu People #2 claim (Ex 2).

5    The applicants and the State of Queensland relied on thorough and helpful written submissions during the hearing of the application.

Background

6    As deposed to in LJB [3]-[5], the Land is a parcel of approximately 14,400 hectares known as ‘Valley Downs’ which is currently used for cattle grazing.

7    On 5 May 2020, the applicants became the registered lessees of the Land (LJB [2], and Annexure ‘LJB-1’).

8    On 20 October 2020, the applicants lodged an application with the Department of Resources for the conversion of the Lease to a freehold interest (LJB at [7] and Annexure ‘LJB-5’).

9    On 13 May 2021, the Department presented the applicants with an Agreement to Offer Conversion of the Lease, subject to certain conditions that are required to be satisfied prior to the issue of a deed of grant in freehold of the Land. These conditions include a requirement for the applicants to provide written advice to the Department as to how they will address native title with respect to the proposed freehold grant either by way of negotiation and registration of an indigenous land agreement, or by way of filing a non-claimant application with this Court resulting in a determination that native title does not exist (LJB at [8]).

10    On 19 May 2021, the applicants executed the Agreement to Offer Conversion of the Lease and returned the executed agreement to the Department (LJB at [9] and Annexure ‘LJB-6’).

11    Section 86G of the NTA provides that:

Unopposed applications

Federal Court may make order

(1)    If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:

the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing.

Note:    If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Meaning of unopposed

(2)    For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.

12    The principles applicable to the consideration of a non-claimant application under s 61 of the NTA were recently addressed in Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41, where regard was also had to earlier principles established in the Full Court decision of Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320.

13    The principles in Mace have been helpfully summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10]. There is no need to repeat that summary here.

14    The key questions for determination are whether the orders sought by the applicants are within the power of the Court, and whether it is appropriate for the Court to make those orders. On the facts before this Court both questions are answered in the affirmative, having regard to the principles articulated by the Full Court in Mace and the subsequent application of those principles in such cases as Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1507 and Murphy v State of Queensland [2021] FCA 81.

Power of the Court to make the determination

15    In respect of whether the orders sought are within the power of the Court, the Federal Court of Australia has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title, and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court (NTA s 81). A ‘determination of native title’ is a determination as to whether or not native title exists in relation to a particular area (NTA s 225) and includes a negative determination of title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466.

16    The non-claimant application was filed pursuant to s 13(1)(a) and s 61(1) of the NTA and it is not in dispute that notice was given of the application as required by s 66(3) of the NTA. There has been no approved determination of native title in relation to the Land to date. There is also no dispute between the parties that the prescribed notification period under s 66(10)(c) came to an end on 10 November 2021, and that no Form 5 party applications have been filed in the proceeding (ELS at [5] and Annexure ‘ELS-4’). Therefore, there are no persons who oppose the non-party application. Further, on 23 November 2021, the National Native Title Tribunal (NNTT) confirmed that there were no relevant entries on the Register of Native Title Claims with regard to the Land (ELS at [6] and Annexure ‘ELS-5’). As the order sought is within the power of the Court, the question that follows is whether I am satisfied on the evidence which is before me that the proposition that native title does not exist has been made out to the relevant civil standard: Mudgee Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 668 at [8].

Appropriateness of the order sought

17    The onus rests on the applicant to substantiate its claim for a negative determination: Worimi at [74], cited in Wagonga at [10] in Proposition (12). Each case must be assessed on its own facts, including the nature of the land and tenure involved, the presence or absence of any native title claims (including previous claims), and any evidence adduced by the parties: Mace at [48], cited in Wagonga at [10] in Proposition (5).

18    In this case, the uncontested evidence before the Court is that searches conducted with, and information provided by, the NNTT have established that there is no previous determination of native title in the Land and that there is no current application in relation to the Land nor is there any current application in relation to the Land (LJB at [12]). There were two historical native title claims over the Land to which I will return.

19    The evidence also discloses that several enquiries were made with the representative body for the area covered by the non-claimant application, being QSNTS (ELS at [10]-[11]). Exhibit 1 indicates that QSNTS is ‘aware that there are people who identify as Kanolou who are likely to assert that they hold native title interests in the land and waters’ over which the applicants seek to extinguish native title. QSNTS did not provide any further detail of the nature or content of such claims. Exhibit 2 suggests that any such claim does is geographically remote from the area the subject of this application.

20    QSNTS did not seek to intervene in or be joined to this proceeding on behalf of a potential native title claimant. In circumstances where it might be expected that a representative body such as QSNTS would be expected to be a ‘likely repository of at least some information about potential native title holders’ in the relevant region (Mace at [95]-[96]), I give no weight to the bare assertion that QSNTS is ‘aware’ that people who identify as a particular claimant group are ‘likely to assert that they hold native title interests’, particularly in circumstances where they has been no attempt to substantiate any such possible interests.

21    As already mentioned, there is evidence of two historical claims to native title having been made in respect of the Land by the Bidjara People. The first (QUD370/2006 Bidjara People #5) was filed on 28 September 2006 and dismissed by the delegate of the Registrar of the NNTT on 5 April 2007. The second (QUD644/2012 Bidjara People #7) was filed on 5 November 2012 and dismissed by the Federal Court on 5 July 2016.

22    These historical claims have been considered in two previous decisions of the Court, WG & DK Ryan Pty Ltd (Trustee) v State of Queensland [2021] FCA 499 and Prow v State of Queensland [2021] FCA 1532. Consistent with the reasoning in those decision, and in circumstances where no one from the Bidjara People has sought to be heard on this application, I am satisfied that there is no evidence of any substance that the Bidjara People maintain an interest of any kind in the Land.

23    In the circumstances, I am satisfied that the applicants have discharged their onus of establishing, on the balance of probabilities, that native title does not exist over the Land.

Conclusion

24    The appropriate order is that native title does not exist over the Land.

Associate:

Dated:    15 February 2022