Federal Court of Australia

Lord Penna Land Holdings Pty Ltd v State Minister for the State of Queensland [2025] FCA 643

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 13(1) of the Native Title Act 1993 (Cth), no native title exists in relation to the land and waters described as Lot 6 on Crown Plan CNA55 (Tenure Reference SH2/3626) (also known as “Coreena”) located in Central West Queensland.

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

REASONS FOR JUDGMENT

RAPER J:

1    The applicant, Lord Penna Land Holdings Pty Ltd ACN 651 910 075, seeks a determination, pursuant to ss 13(1) and 61(1) of the Native Title Act 1993 (Cth), that no native title exists in relation to the land and waters described as Lot 6 on Crown Plan CNA55 (Tenure Reference SH2/3626) (the Land). The Land is located in Central West Queensland and is surveyed at 17802.930800 ha. Lord Penna is the registered lessee of the Land.

2    On 28 February 2022, Lord Penna applied to the Queensland Government, Department of Resources, to convert the lease to freehold. On 8 May 2023, the Department issued an offer for $424,570.92 to convert the lease to freehold conditional upon either a determination that there is no native title in the Land, or registration of an Indigenous Land Use Agreement. On 1 June 2023, Lord Penna executed an agreement to convert the lease to freehold. On 9 October 2023, Lord Penna filed this non-claimant application to satisfy the condition sought by the State to allow such a conversion.

3    The State Minister for the State of Queensland (the State) is the only respondent to the non-claimant application. On 8 November 2024, the State filed a notice, pursuant to s 86G(2) of the NTA, that it did not oppose an order being made in, or consistent with, the terms sought by Lord Penna.

4    The relevant question to be determined is whether Lord Penna has discharged its burden of proof that no native title exists in the Land: Mace v Queensland [2019] FCAFC 233; 274 FCR 41 at [44].

5    For the reasons which follow, I am satisfied that the non-claimant application should be allowed, the negative determination sought by Lord Penna is within the power of the Court and it is appropriate to make that order without holding a hearing.

Statutory framework, disposition of preliminary issues and organising principles

6    Under s 13(1)(a) of the NTA, an application may be made to this Court for the making of an approved determination of native title in relation to an area for which there is no approved determination of native title. The Federal Court has jurisdiction to hear and determine such an application: s 81 of the NTA. Such applications may include those seeking of a negative determination, namely that no native title exists with respect to a particular area: ss 86G(1)(b), 94A and 225.

7    There was no contest between the parties, and I accept on the evidence that there is no approved determination of native title over the Land.

8    Section 61(1) of the NTA provides that a person (among others) may bring such an application if that person holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought.

9    There was no contest between the parties, and I accept that Lord Penna has such an interest by virtue of being the registered lessee over the Land: s 253(1) of the NTA.

10    Where an application is made under s 61, there are a number of procedures which must be followed to ensure relevant sections of the public are notified of and given an opportunity to become a party to the proceeding. The Federal Court Chief Executive Officer is required, as soon as practicable, to give the Native Title Registrar a copy of the application and other material prescribed under s 63 of the NTA. The Registrar must then comply with the requirements of s 66, which, without being exhaustive, include providing a copy of the application to certain persons and bodies and notifying the public. As to notifying the public, a particular form of notice is to be published.

11    The Court may make a determination without holding a hearing, where a non-claimant application is unopposed, within the meaning of s 86G(2) of the NTA, namely:

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    On 11 March 2024, Mr Dennis Mark Anderson filed a notice, pursuant to s 84(3), to become a party to the application and to oppose it and thereafter filed an affidavit. However, on 10 October 2024, Mr Anderson filed a notice to cease to become a party to the proceedings under s 84(6) of the NTA, which entitled him to withdraw at any time before the first hearing by written notice.

13    Lord Penna’s written outline of submissions dated 13 September 2024 were filed prior to that withdrawal and addressed the substance of Mr Anderson’s opposition as revealed by his affidavit evidence, affirmed 19 August 2024.

14    The State, having filed its written outline of submissions later, addressed Mr Anderson’s withdrawal by submitting that in an absence of further information, no conclusion ought be drawn from Mr Anderson’s withdrawal, but that the effect was such that there were no longer any respondents effectively opposing Lord Penna’s application. On 8 November 2024, the State filed a notice pursuant to s 86G of the NTA, that the proceeding is now unopposed by it.

15    The Court is empowered to make a determination without holding a hearing, provided the other requirements of s 86G(1) of the NTA are met. Those requirements are that:

(a)    the application is made under s 61;

(b)    the period specified in the notice under s 66 has ended;

(c)    the Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court; and

(d)    it appears to the Court that it is appropriate to make such an order.

16    There was no contest between the parties, that the application was made under s 61 and the period, specified in the notice under s 66 has expired: The notification period ended on 12 March 2024. I am also satisfied that the Court has the power to make the order, in the terms sought by the applicant.

17    Accordingly, I am of the view that the application is unopposed, and the Court has power to make an order under s 86G(1). I am further of the view that it is appropriate for the application to be determined without holding a hearing.

18    However, as observed by the Full Court in Mace at [44], regardless of whether the Court makes an order under s 86G, the question for the Court remains the same, namely whether the applicant discharged their burden of proof that no native title exists in the claim area. The determination of whether that burden has been discharged depends upon the circumstances of each case, and on the evidence adduced, without the need to rely on maxims or presumptions originating in a different adversarial context: Mace at [64].

19    Lord Penna must satisfy the Court that, on the balance of probabilities, native title does not exist over the area in respect of which the determination is sought: Mace at [44]. However, the Court does not conduct a general inquiry, as part of its consideration of a non-claimant application, as to the existence of native title rights and interests which may have existed at sovereignty, or any general inquiry into how those rights and interests may or may not have continued: Mace at [55].

20    The relevant organising principles which inform the task of this Court were summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10], as follows:

(2)    The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42].

(3)    Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: Has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].

(4)    The overriding proposition is that each case must be assessed on its own particular facts: [47].

(5)    Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48].

(6)    The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52].

(7)    All issues are to be assessed on the usual standard of proof in civil litigation - proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].

(8)    A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].

(9)    The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]-[60].

(10)    In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].

(11)    In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a “prima facie” position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].

(12)    The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application…

(13)    In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA: [66].

(14)    No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].

(15)    If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].

(16)    The Court’s task is not to be more or less “stringent” depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82].

(17)    The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97].

21    I turn to consider the evidence before the Court and to apply these principles.

Evidence

22    Lord Penna relied upon an affidavit of Mr Mark Stewart Boge (solicitor for Lord Penna) affirmed 1 July 2024, wherein he deposed to a description of the Land and Lord Penna’s interest in it. Mr Boge also deposed to a history of unsuccessful native title applications over the land and attaches copies of the Department’s offer letter to Lord Penna, emails from the Registrar advising of the notification requirements and public notices being satisfied.

23    The State relied upon an affidavit of Ms Rosalba Ozlem Sanimeli Rigamoto (Crown Solicitor for the State) affirmed 23 August 2024. Ms Rigamoto deposed to a review of the conversion of the Land from leasehold to freehold, the notification requirements, Mr Anderson’s intervention and historical overlapping applications for native title over the Land which were unsuccessful, as well as surrounding determinations on the Land.

Disposition

24    I accept that the Registrar has satisfied the notification requirements under ss 63 and 66. I am satisfied the notification period has ended.

25    On 24 October 2023, the Native Title Tribunal notified the legal representatives for Lord Penna that a copy of the non-claimant application had been given to the State Government and to the representative body for the area covered by the non-claimant application, as required pursuant to ss 66(2) and 66(2A) of the NTA.

26    On 29 November 2023, the Registrar publicly notified the non-claimant application in the Koori Mail. On 1 December 2023, the Tribunal publicly notified the non-claimant application in the Longreach Leader. The notice specified a notification day of 13 December 2023 and identified the notification period as ending on 12 March 2024.

Lord Penna has established that no native title exists in relation to the Land

27    I am satisfied that Lord Penna has established, on the balance of probabilities, that no native title exists in relation to the Land for the following reasons.

Despite notification no one asserts native title nor has the representative body been joined to the proceeding

28    First, despite the notice, no claim has been made by anyone asserting native title over the Land, nor has Queensland South Native Title Services, as the representative body nor any other person been joined (and maintained their claim) over the Land.

No evidence or information has been received from the representative body

29    Secondly, no evidence or information has been received from QSNTS which in the past has been active and has elected not to participate in this application.

30    As observed by the Full Court, in Mace, the Court is able to reasonably expect that a representative body for the relevant region for the subject claim area of the non-claimant application will provide “some evidence or information to the Court about what it knows, or does not know, about potential native title holders for the claimed area”: Mace at [94].

31    Here, I am satisfied, that the evidence establishes that the relevant representative body is QSNTS. This is the same body which was involved in previous Bidjara claims and in Mace.

32    The Tribunal informed QSNTS. The evidence reveals that no response was received. This has some significance, as recently observed by Perry J, in Cornford v State Minister for the State of Queensland [2024] FCA 992 at [33]:

Secondly, as the Full Court explained in Mace at [94], the weight to be given to the absence of any responses must be considered having regard to all of the circumstances of the particular case. In this case, the fact that QSNTS, as the representative body for the area where the Land is situated, elected not to participate in this application should be given some weight. This is because QSNTS actively engaged, as the representative body, in the earlier applications made by the Bidjara People. Furthermore, QSNTS were joined on their application to the Mace proceedings to oppose the non-claimant application in that case on the basis of yet unasserted native title rights and interests by the Bidjara People with respect to the proposed determination area which was within the Bidjara #6 claim area: Mace at [25], [31]-[32], [104]-[112], and [149]. In such circumstances and given the role of a representative body as explained in Mace, it would be reasonable to expect that there would have been some level of active engagement by QSNTS with this non-claimant application if there was any proposed claim for native title over the Land: see similarly South Terrick at [22] (Collier J).

(Emphasis in original.)

33    I accept that the absence of responses to advertising of the application is relevant, but not conclusive, and its weight is to be assessed by reference to other evidence. I also take into account, as submitted by the parties, that it is a relevant consideration that the representative body has not sought to be joined as a respondent, nor has it provided any evidence.

Previous claimant applications over land which overlapped with the relevant Land (in whole or in part) were dismissed

34    Thirdly, the only past native title determinations relating to the relevant Land were brought on behalf of the Bidjara people, which were ultimately dismissed.

35    It is significant to the disposition of this application that this Court has previously determined claims of connection arising from traditional law and custom to the land in question in the negative: Mace at [51]. Whilst the extant determination to be made by the Court is confined to the Land, the Court is able to consider the outcome of other applications for native title determinations in the area: Mace at [149]-[154].

36    The evidence establishes, as set out in the affidavit of Mr Boge (at [18]-[20]) and Ms Rigamoto (at [15]), that the relevant Land overlapped with the following previous native title claimant applications:

(a)    Fraser and others on behalf of the Bidjara People (No 5) v State of Queensland (QUD370/2006; QC2006/013) (Bidjara #5) filed 27 September 2006, which was dismissed on 18 May 2007 by guillotine order for failure to file material; and

(b)    Waterton & Ors on behalf of the Bidjara People #7 v State of Queensland (QUD644/2012; QC2012/018) (Bidjara #7) filed on 15 November 2012 which was summarily dismissed on 5 July 2016: Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777.

37    On 23 July 2008, a further claim was filed, in Wyman and Others on behalf of the Bidjara People (No 6) v State of Queensland (proceeding QUD216/2008) (Bidjara #6). The Land is outside the subject area of Bidjara #6. Part of the area covered by the Bidjara #6 claim was also the subject of other native title claims brought on behalf of the Karingbal People and the Brown River People (overlap area). In Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [620], [621] and [623], Jagot J rejected the existence of native title asserted by those applicants in the overlap area.

38    Of significance, in Bidjara #6, the Court determined that native title did not exist in that part of the claim area called the overlap area, on the basis that the Court was not satisfied that the people who now identify as Bidjara possess rights and interests under traditional law and customs which give them a connection with the land and waters which has continued: Wyman (No 2) at [672]. The decision was affirmed on appeal: Wyman v Queensland [2015] FCAFC 108; 235 FCR 464. Bidjara #6 was also later the subject of orders for summary dismissal as an abuse of process: Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777.

39    As submitted by the State, the significance of this aspect of Wyman (No 2) that native title did not exist with respect to the overlap area was explained in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350 at [141] per Jagot and Mortimer JJ:

In Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (the earlier decision) her Honour had concluded that the Bidjara People had not proven continued acknowledgement and observance of their traditional laws and customs in relation to the area of land known as the “overlap area”: see Wyman at [26]-[28]. That is a factual finding likely to affect any future native title claim made by the Bidjara People, even over different land and waters. We see that as quite a different situation to the present. It may be possible for a finding of that kind to be revisited in a s 13 application, but it is otherwise understandable why a claim group might not be permitted to proceed with further claims over other land and waters if there has been a clear finding of no continuity in the observance of their traditional laws and customs: such a finding is less specific to any particular land or waters.

40    As observed by the Full Court in Mace at [151]:

A finding on a matter such as continuity of observance and adherence to traditional law and custom in the way rights and interests in land are created and passed on is a finding which, in most circumstances, will extend to subsequent claims by a claim group composed of essentially the same people. It is a finding which is not tied in any relevant sense to the particular land and waters involved, or to evidence about that land and waters. Rather, it is a finding about the lack of proof of a continued normative effect of the traditional law and custom which must, for the purposes of the NT Act, be what unites a group of people and provides the rules for the creation and acquisition of rights and interests in land and waters. This was the point made by Jagot and Mortimer JJ in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 at [141], referring to Wyman (No 2), in the context of a differently based argument about abuse of process.

41    The State submitted that, in Mace, the subject land was within the Bidjara #6 claim area although not within the Bidjara #6 overlap area that was subject to the determination in Wyman (No 2).

42    Here, the Land is not within the Bidjara #6 claim area but is within the Bidjara #7 claim area. Bidjara #7 was dismissed as an abuse of process. Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777 at [35]:

The claim which is necessarily contained in the Bidjara 6 and Bidjara 7 applications – that the claimant group is united in observance and acknowledgment of the traditional laws and the traditional customs of pre-sovereignty Bidjara society – has been made and determined in Wyman No 2.

43    It is also relevant that there have been several, subsequent successful non-claimant applications for negative determinations in the area close to the Land, in which the Court considered and applied Wyman (No 2). Notably, those non-claimant applications were made where no First Nations peoples sought to be heard to assert native title or interest in the subject land: Bartolo v State of Queensland [2022] FCA 100 at [21]–[22]; James Speed Company Pty Ltd v State of Queensland [2022] FCA 626 at [31]–[32]; Moller v State of Queensland [2023] FCA 347 at [9], [13]; Arnaboldi v State Minister for the State of Queensland [2023] FCA 788 at [32]–[33].

Why the Court ought exercise its discretion in favour of the application

44    The Full Court, in Mace at [73], recognised that the Court retains a discretion to decline to make a determination even if a non-claimant applicant has proven on the balance of probabilities that no native title exists:

We also consider that even though these are not unopposed applications under s 86G, the Court is able to consider as a factor in the exercise of its power whether it is “appropriate” to make a determination that no native title exists, even if a non-claimant applicant has proven on the balance of probabilities that no native title exists. The cases might be rare indeed where, if the burden of proof is discharged, a Court would consider it inappropriate to make a negative determination. However, in principle it may be no different to the Court's discretion to withhold relief in proceedings brought in other parts of its jurisdiction where an applicant has otherwise made out a case for relief. The circumstances which arise in the consideration of a determination to be made under the NT Act are broad, and new circumstances may yet arise, so that the Court should not foreclose consideration of such a factor. The “appropriateness” consideration governs and is a condition of the exercise of power in s 86G, and we see no reason why it is not at least a permissible factor to consider in a contested application.

Conclusion

45    For these reasons, I consider it appropriate to make the determination sought by Lord Penna, given it has discharged its burden in proving that no native title exists in the Land.

Associate:

Dated:    18 June 2025