Federal Court of Australia

Whip v State Minister for the State of Queensland [2025] FCA 644

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 5 on Crown Plan PL66 (Title Reference 17663147) located in the Barcaldine Local Government Area 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, Mr Peter Raymont Whip, 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 5 on Crown Plan PL66 (Title Reference 17663147) (the Land) located in the Barcaldine Local Government Area, in Central West Queensland and surveyed at 7057.8 ha. Mr Whip is the registered lessee of the Land and currently uses it for cattle grazing.

2    On 16 December 2022, Mr Whip applied to the Queensland Government, Department of Resources, to convert the lease to freehold. On 29 August 2023, the Department issued an offer for $48,474.91 to convert the lease to freehold conditional on either a determination that there is no native title in the Land, or registration of an Indigenous Land Use Agreement. On 1 September 2023, Mr Whip executed the agreement to convert the lease to freehold. On 7 December 2023, Mr Whip filed this non-claimant application to satisfy the State’s condition.

3    The State Minister for the State of Queensland (the State) is the only respondent to the non-claimant application. On 13 December 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 Mr Whip.

4    The relevant question to be determined is whether Mr Whip has discharged his 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 Mr Whip is within the power of the Court and it is appropriate to make that order without holding a hearing.

Statutory framework and organising principles

6    I adopt the reasoning in Lord Penna Land Holdings Pty Ltd v State Minister for the State of Queensland [2025] FCA 643, at [6], [8], [10]-[11], [15] and [18], which describes the legislative framework which prescribes the parameters of the Court’s task in determining this application.

7    I accept that Mr Whip has an interest in the Land by virtue of being the registered lessee over the Land: s 253(1) of the NTA. I am satisfied 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 June 2024. I am also satisfied that the Court has the power to make the order, in the terms sought by Mr Whip.

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

9    Mr Whip 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 is not required to 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].

10    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 (NSW) [2020] FCA 1113 at [10]:

(1)     The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].

(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, in this case, WLALC.

(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].

11    I will now turn to apply these principles upon the consideration of the evidence before the Court.

Evidence

12    Mr Whip relied upon the following affidavits in support of his non-claimant application:

(a)    Affidavit of Peter Raymont Whip sworn 28 October 2024; and

(b)    Affidavit of Erin Louise Sellentin sworn 30 October 2024.

13    Mr Whip deposed to his interest in, and use of, the land and the conversion application. Ms Sellentin, solicitor for Mr Whip, deposed to having conducted searches of the National Native Title Tribunal Registers; the notification process; and no response from Queensland South Native Title Services.

14    The State relied upon an affidavit of Ms Rosalba Ozlem Sanimeli Rigamoto affirmed 13 December 2024. Ms Rigamoto, having conduct of the proceeding on behalf of the State chronicled the conversion process, the notification process and provided copies of the survey maps revealing the previous unsuccessful, historical overlapping native title applications as provided by the State’s Native Title and Indigenous Land Services Branch.

Disposition

15    On 19 December 2023, the Tribunal notified the legal representatives for Mr Whip 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.

16    On 28 February 2024, the Registrar publicly notified the non-claimant application in the Koori Mail. On 1 March 2024, the Tribunal publicly notified the non-claimant application in the Longreach Leader. The notice specified a notification day of 13 March 2024 and identified the notification period as ending on 12 June 2024.

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

Mr Whip has established that no native title exists in relation to the Land

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

19    Mr Whip provided evidence of searches conducted with, and information provided by, the Tribunal which establish that there is no previous approved determination of native title in the Land and there is no current application in relation to the Land.

No person asserts native title nor has the representative body nor anyone else sought to be joined to the proceeding

20    Despite receiving notice from Mr Whip’s legal representatives by letter dated 13 October 2024, the relevant representative body, QSNTS, has provided no response nor sought to be joined to the proceeding. Further, no claim has been made by anyone else asserting native title over the Land nor seeking to be joined over the Land.

No evidence or information has been received from the representative body

21    I note that QSNTS was involved in previous Bidjara claims and in Mace.

22    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].

23    The Tribunal informed QSNTS and no response was received for which weight must be given, 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).

Previous claimant applications over land which overlapped historically with the Land were dismissed

24    The Land, overlapped historically, and in its entirety, with two 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) 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) 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.

25    I adopt the reasoning and the description of the history of related matters as contained in Lord Penna at [37]-[41]. Of significance, the Court has also previously 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 on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [672]. The decision was affirmed on appeal: Wyman v Queensland [2015] FCAFC 108; 235 FCR 464.

26    There are no other current native title claim applications, determinations or Indigenous Land Use Agreements.

Conclusion

27    For these reasons, I consider it appropriate to make the determination sought by Mr Whip, given he has discharged his burden in proving that no native title exists in the Land.

Associate:

Dated:    18 June 2025