Federal Court of Australia

Todd TBA Property Pty Ltd v State Minister for the State of Queensland [2025] FCA 1151

ORDERS

THE COURT ORDERS AND DECLARES THAT:

1.    The non-claimant application be determined without a hearing pursuant to s 86G of the Native Title Act 1993 (Cth).

2.    There be a determination that native title does not exist in relation to the land and waters described as Lot 4281 on Crown Plan PH362.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

STELLIOS J:

Introduction

1    This proceeding concerns a non‍-‍claimant application under s 61(1) of the Native Title Act 1993 (Cth) (NTA) for a determination that native title does not exist in the land and waters comprising Lot 4281 on Crown Plan PH362, known as Fraserburgh (application area).

2    The applicant is the registered lessee of the application area, which covers approximately 276 square kilometres. The application area is located approximately 14 kilometres south-east of Jundah, within the Barcoo Shire Council local government area in the State of Queensland.

3    The respondent is the State Minister for the State of Queensland who is a party pursuant to ss 84(4) and 253 of the NTA. The State Minister has filed a notice pursuant to s 86G of the NTA not opposing an order being made in, or consistent with, the terms sought by the applicant. The applicant and the State Minister are the only parties to the proceeding.

4    For the reasons given below, I am satisfied that the applicant has established on the balance of probabilities that native title does not exist in the application area and, consequently, I am satisfied that the determination sought by the applicant should be made.

Legislative Framework

5    Paragraph 13(1)(a) of the NTA provides for the making of an application to the Court under Pt 3 of the NTA for a determination of native title in relation to an area for which there is no approved determination. Subsection 61(1), in Div 1 of Pt 3 of the NTA, provides that such an application may be made by “[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”. “Interest” is defined in s 253 to include “a legal or equitable estate or interest in the land or waters”.

6    Section 253 also defines the two categories of applications as “claimant applications” and “non‍-‍claimant applications”. A “claimant application” is defined to mean “a native title determination application that a native title claim group has authorised to be made”. Native title determination applications that are not claimant applications are “non‍-‍claimant applications”.

7    Once filed in the Court, a s 61 application and other specified documents are to be given to the Native Title Registrar who must take the notification steps prescribed by s 66 of the NTA. Notice must be given to a range of persons, including the Commonwealth, the relevant State or Territory Minister, the relevant representative bodies, and any relevant registered native title claimant, registered native title body corporate and representative Aboriginal/Torres Strait Islander body: s 66(3). The content of the notice is prescribed by s 66(10). In the case of a non‍-‍claimant application, the notice must include a statement to the effect that the area covered by the application may be subject to s 24FA protection, and that a person who wants to be a party in relation to the application must notify the Federal Court within three months of the notification day set out in the notice or otherwise with leave of the Court under s 84(5) of the NTA.

8    At the relevant time for this application, the Native Title (Notices) Determination 2011 (No. 1) (Cth) (2011 Notices Determination) specified the advertising requirements and contents of such notices. The amended determination, the Native Title (Notices) Determination 2024 (Cth), commenced operation on 1 October 2024. Under cll 6(1) and 6(2)(f) of the 2011 Notices Determination, a notice under s 66(3)(d) of the NTA was required to be published:

(a)    by advertisement in 1 or more newspapers that circulate generally throughout the area to which the notice relates or, if the area is an offshore place, the geographical area closest to it that is an onshore place; and

(b)    in a relevant special-interest publication.

9    Subclause 6(5) of the 2011 Notices Determination provided that notices under s 66(3)(d) were to include (a) details of the application, (b) a clear description of the area to which the application related, and (c) a statement of how further information about the application could be obtained. Clause 4 of the 2011 Notices Determination provided:

clear description, for an area, means a description of the area that contains enough information, whether by map drawn to scale or description by other means, to work out:

(a)    the general location of the area; and

(b)    the approximate boundaries of the area.

10    If there is an approved determination of native title in relation to a particular area, the Court must not, in relation to that area or any area wholly within that area, (a) conduct any proceeding relating to an application for another determination of native title, or (b) make any other determination of native title (except an application to revoke, vary, review or appeal an existing determination): NTA s 68.

11    In the case of unopposed applications, s 86G(1) of the NTA provides that the Court may make an order sought by the applicant without holding a hearing if the period specified in the notice has ended; the Court is satisfied that the order in, or consistent with, the terms sought by the applicant is within the Court’s power; and it appears to the Court appropriate to do so. An application will be unopposed where the other parties do not oppose the order in, or consistent with, the terms sought by the applicant: s 86G(2).

12    Pursuant to s 94A of the NTA, “an order in which the Court makes a determination of native title must set out details of the matters mentioned in section 225” which relevantly provides that “[a] determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters” (emphasis added). As recognised by a Full Court of the Federal Court in Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 233 at [40] (Jagot, Griffiths and Mortimer JJ), s 225 “authorises a determination that native title exists, and it also authorises a determination that native title does not exist”.

13    Finally, s 213(1) of the NTA provides that if it is necessary for the Court “to make a determination of native title, that determination must be made in accordance with the procedures in this Act”.

Evidence

14    The evidence in this matter was uncontested and was taken to be read without objection:

    The applicant relied on the affidavit of Mark Stewart Boge, solicitor for the applicant, affirmed on 17 December 2024; and

    The State Minister relied on the affidavit of Danielle Ann Denaro, a lawyer at Crown Law, affirmed on 17 April 2025 (Denaro affidavit).

15    The parties also conferred on a report which was filed by the applicant on 22 April 2025.

Background

The applicant’s interest in the application area

16    The application area is currently subject to a rolling term lease within the meaning of s 164 of the Land Act 1994 (Qld). The lease was initially granted for a term of 30 years commencing on 1 April 1965, and was subsequently extended to 31 March 2048. The applicant became the registered lessee of the land on 12 December 2023.

17    The applicant intends to convert the rolling lease to freehold title and lodged an application for that purpose with the Queensland Department of Resources (now the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development) on 17 June 2024. That application is currently subject to assessment. In his affidavit, Mr Boge deposed that “the Applicant is aware that any offer from the [Department] to convert the lease over the Land to freehold would require it to address native title”. No evidence or authority was provided to support this statement. However, it would appear that, in other cases, offers to convert rolling leases to freehold have been conditioned on a determination being made that native title does not exist in relation to the land in question: see Arnaboldi v State of Queensland [2023] FCA 788 at [16] (SC Derrington J); Murphy v State of Queensland [2021] FCA 81 at [6] (Collier J). In any event, if the applicant is entitled to apply for a non-claimant determination, the reason for seeking the determination does not affect the approach to be applied: Mace at [42]; Wagonga Local Aboriginal Land Council v Attorney-General (NSW) [2020] FCA 1113 at [10(2)] (Jagot J); Moonyanco Pty Ltd v State Minister for the State of Queensland [2024] FCA 931 at [41] (Shariff J).

Notification of application

18    The non‍-‍claimant application was lodged with the Court on 24 June 2024 and accepted for filing on 25 June 2024: NTA ss 13(1)(a) and 61(1). The National Native Title Tribunal confirmed, by letter to the applicant on 26 June 2024, that the Registrar had received from the Court a copy of the application and accompanying documents pursuant to s 63 of the NTA. The letter further stated that the Tribunal had given the non‍-‍claimant application and accompanying documents to the State Minister and the representative body for the application area: ss 66(2) and 66(2A). The representative body, Queensland South Native Title Services Ltd (QSNTS), has not sought to join the proceeding as a party.

19    The applicant received a further letter from the Tribunal on 24 July 2025, indicating that the non‍-‍claimant application would be published in the Koori Mail on 31 July 2024 and the Longreach Leader on 2 August 2024. A copy of the notice was attached to the Tribunal’s letter along with a list of persons and bodies to whom notice was given pursuant to s 66(3)(a) of the NTA, inclusive of QSNTS. The notice stated that the area may be subject to protection under s 24FA, that the notification day was 14 August 2024, and that interested persons who wished to become a party to the application should file a notice of intention with the Court on or before 13 November 2024 or otherwise seek leave of the Court.

20    While I do not have before me copies of the relevant notices as published in the Koori Mail and the Longreach Leader, I am prepared to draw an inference that the notice was published in those newspapers as deposed by Mr Boge. On 20 November 2024, the Tribunal wrote again to Mr Boge stating that “[t]he Native Title Registrar recently notified the above non-claimant application pursuant to s 66(3)” of the NTA. Compliance with s 66(3) involves satisfaction of the s 66(3)(d) requirement for public notification. In the absence of any evidence to the contrary, I am prepared to infer that the publication of the notice of the application took place in the ways indicated by the Tribunal in the letter of 24 July 2024 and in the form of the notice attached to that letter.

21    On 25 November 2024, the applicant received an email from the Tribunal confirming that, at the end of the notification period, zero notices of intention had been filed.

Historical native title claims over the application area

22    On 5 December 2024, the applicant received a table of results from the Tribunal, produced from a search of the Tribunal’s databases at the request of the applicant. The databases searched were identified in the Tribunal’s communication as:

•    Schedule of Native Title Determination Applications

•    Register of Native Title Claims

•    Native Title Determinations

•    Register of Indigenous Land Use Agreements

•    Notified Indigenous Land Use Agreements

•    Historic Native Title Applications

23    In addition to the non‍-‍claimant application and the applicant’s leasehold, the search results showed that there were two historical native title claims made over the application area:

(1)    Fraser and others on behalf of the Bidjara People (No 5) v State of Queensland (proceeding QUD370/2006) (Bidjara (No 5)) filed on 28 September 2006. The extract from the Schedule of Native Title Applications for Bidjara (No 5) states that the “Registration decision status” is “Not Accepted for registration” and that Bidjara (No 5) was dismissed on 18 May 2007.

(2)    Waterton and others on behalf of the of the Bidjara People (No 7) v State of Queensland (proceeding QUD644/2012) (Bidjara (No 7)) filed on 15 November 2012. The extract from the Schedule of Native Title Applications for Bidjara (No 7) states that the claim was accepted for registration from 24 January 2013 until 6 July 2016. Bidjara (No 7) was dismissed on 5 July 2016.

24    Bidjara (No 7) was summarily dismissed (along with outstanding claims in Wyman and Others on behalf of the Bidjara People (No 6) v State of Queensland (proceeding QUD2161/2008) (Bidjara (No 6)) by Jagot J in Wyman v Queensland [2016] FCA 777 (Summary Dismissal) on the basis that the claimants sought to relitigate the issue of “continuity” which was decided in earlier litigation (see below at [28]‍–‍[30]) and was therefore an abuse of process. The application for leave to appeal the Summary Dismissal was dismissed by Reeves J on 12 April 2017 in Waterton v Queensland [2017] FCA 633. While no evidence was provided as to why Bidjara (No 5) was dismissed, it would appear that the reason was a failure to comply with timetabling orders: see Lord Penna Land Holdings Pty Ltd v State Minister for the State of Queensland [2025] FCA 643 at [36] (Raper J); James Speed Company Pty Ltd v State of Queensland [2022] FCA 626 at [32] (Burley J).

Native title claims in proximity to the application area

25    In addition to the claims described above, there are four native title determinations in close proximity to the application area. Annexed to the Denaro affidavit is a map showing the application area and surrounding areas, and the native title determinations in those surrounding areas. There is also a “100km buffer zone” marked around the application area providing a scale for measurement. Ms Denaro deposed that she used the measurement tool on the Native Title Vision — Queensland page of the Tribunal’s website to measure approximate distances of each of the proximate historical native title determinations from the application area.

26    The following determinations are within, or proximate to, the “buffer zone” but do not include or overlap with the application area:

(1)    Moonyanco Pty Ltd as Trustee under Instrument 719523925 v State Minister for the State of Queensland (QUD290/2023), a non‍-‍claimant application filed on 30 June 2023, where native title was determined not to exist on 16 August 2024: see Moonyanco. The external boundary of the relevant land is located approximately 42 kilometres north-west of the application area.

(2)    Murphy v State of Queensland (QUD171/2018), a non‍-‍claimant application filed on 21 March 2018, where native title was determined not to exist on 9 February 2021: see Murphy. The external boundary of the relevant land is located approximately 57 kilometres west of the application area.

(3)    Wallace on behalf of the Boonthamurra People v State of Queensland (QUD435/2006), a claimant application filed on 2 November 2006, where native title was determined to exist on 25 June 2015 under a consent determination: see Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600. The external boundary of the Boonthamurra People determination area is located approximately 38 kilometres south of the application area.

(4)    Gorringe on behalf of the Mithaka People v State of Queensland (QUD6033/2002), a claimant application filed on 28 November 2002, where native title was determined to exist on 27 October 2015 under a consent determination: see Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116. The external boundary of the original Mithaka People application extended to within approximately 35 kilometres of the application area (using the scale provided in the map annexed to the Denaro affidavit). However, the application was amended to reduce the claim area. The Mithaka People determination area now lies approximately 121 kilometres west of the application area. The Mithaka People have not made any other native title application since that time and have not sought to be joined as a party to this proceeding.

27    There are no other current native title determinations or applications recorded in the Tribunal’s databases within a similar distance to the application area.

The significance of Bidjara (No 6)

28    Bidjara (No 6) concerned another claim by the Bidjara People covering land and waters to the east of the application area. The extract from the Schedule of Native Title Applications for Bidjara (No 6) states that the claim was filed on 23 July 2008, accepted for registration from 12 September 2008 until 6 July 2016, and dismissed on 5 July 2016. Part of the area covered by Bidjara (No 6) overlapped with an area (the overlap area) covered by four native title claims brought on behalf of the Karingbal People and the Brown River People.

29    The application area is outside the subject area of Bidjara (No 6), but the findings made in that application are relevant to the present application. Justice Jagot dismissed the native title applications in relation to the overlap area. For the following reasons, her Honour found that the Bidjara applicant had not proved the existence of native title in the overlap area (Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Wyman (No 2)) at [672]):

[I] am 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 of the overlap area because I am not satisfied that any body of traditional law and customs, as opposed to attenuated or transformed fragments of law and customs, have continued. While there continues to be a body of people who have maintained their identity as Bidjara, the connection of the Bidjara to the land and waters of the claim area including Carnarvon Gorge and Carnarvon National Park is not a connection which has as its source traditional law and custom.

30    Her Honour also found that the other applicants had not proved the existence of native title in the overlap area (at [620], [621] and [623]). The decision was affirmed on appeal: Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108. Justice Jagot subsequently determined that native title does not exist in relation to the overlap area: see Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8 and Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93.

31    The remainder of the claim in Bidjara (No 6) (along with Bidjara (No 7)) was later the subject of the orders in the Summary Dismissal as an abuse of process (see above at [24]). As Jagot J concluded in the Summary Dismissal (at [31]):

I am satisfied that the continuation of the Bidjara 6 and Bidjara 7 claims represents an abuse of process which should not be permitted to continue. Although the Bidjara 6 and Bidjara 7 claims relate to different land (that is, land outside of the overlap area) … they are each claims on behalf of the same claimant group… An essential element of the maintenance of each of the claims is the proposition that the claimant group – which is the same claimant group as in Wyman No 2 – is united in observance and acknowledgment of the traditional laws and the traditional customs of pre-sovereignty Bidjara society. That issue has, however, already been determined against the claimant group.

32    The significance of the finding in Wyman (No 2) was explained in the following way by Jagot and Mortimer JJ in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 273 FCR 350; [2019] FCAFC 177 at [141]:

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.

See also Mace at [151]; Lord Penna at [39]‍–‍[40].

Legal Principles

33    The principles applicable to non‍-‍claimant applications were considered by the Full Court in Mace. They were summarised in the following way by Jagot J in Wagonga at [10] (with reference to the decision in Mace):

(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].

34    The following statement of the Full Court in Mace at [94], in relation to the statutory notification process, should also be noted:

[E]vidence of the notification process, and … the absence of any responses, will not be the only evidence before the Court on a non‍-‍claimant application. The weight to be given to the absence of any responses will be considered in the context of all the circumstances relating to the land and waters covered by the non‍-‍claimant application including matters such as whether there have been previous claims over the land and waters and the fate of those claims, and what information the relevant representative body (or Land Council) might have about people who may claim connection to the land and waters based on traditional law and custom. There can be no prescription that absence of responses to [Tribunal] notifications should be given great weight, or no weight, or something in between. What is more important, it seems, is that the Court can reasonably expect a representative body for the region in which the non‍-‍claimant application land and waters are located to 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.

Consideration

Preliminary matters

Decision made without hearing

35    I have dealt with the non-claimant application without holding a hearing pursuant to s 86G of the NTA because:

(1)    The period specified in the s 66 notice has come to an end (ceasing on 13 November 2024);

(2)    The respondent has notified the Court in writing that the application is unopposed;

(3)    The parties agreed that the application could be determined on the papers without an oral hearing and have filed written submissions;

(4)    For the reasons given below, I am satisfied that the terms of the order sought are within the power of the Court; and

(5)    I consider it appropriate to do so in the circumstances.

36    Accordingly, I have considered the application on the basis of the filed affidavits and the written submissions of the parties.

Applicant eligible to make non-claimant application

37    As a registered lessee of the application area, the applicant holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought. As at 5 December 2024, there was no extant native title application over the application area. The application area does not overlap with any previously approved determination of native title, and the two historical native title applications covering the application area, that is Bidjara (No 5) and Bidjara (No 7), were dismissed, respectively, on 18 May 2007 and 5 July 2016.

38    Accordingly:

(1)    The applicant is eligible to make this non-claimant application under ss 13(1)(a) and 61(1) of the NTA;

(2)    The Court has jurisdiction to hear and determine the application under s 81; and

(3)    Section 68 of the NTA does not prevent the Court from considering the application and making a determination.

Notification requirements are satisfied

39    The evidence also demonstrates that the application was made in the prescribed form (s 61(5)) and that the Tribunal’s notification requirements under s 66 of the NTA and cll 6(1), (2)(f) and (5) of the 2011 Notices Determination were satisfied. In particular, the relevant State Minister and representative body have received notice of the application.

40    The evidence also supports the following compliance matters:

(1)    The Tribunal informed the applicant that notice had been given to the parties (where applicable) identified in s 66(3);

(2)    The notification day was specified in accordance with s 66(8) of the NTA;

(3)    At the end of the notification period, the Tribunal confirmed that there were no entries on the Register of Native Title Claims that fall within the external boundaries of the non-claimant application in this proceeding; and

(4)    The application area was identified in the notice by reference to Lot and Crown Plan numbers, and that information was supplemented by a description of its directional proximity to Jundah and a map of its location.

41    On the evidence provided by the parties, I accept that the formal requirements for the non-claimant application have been satisfied.

Disposition of the application

42    The applicant has the burden to establish, on the balance of probabilities, that no native title exists in the application area. That can be established by showing that:

(1)    native title has been extinguished; or

(2)    native title does not presently exist, either because it is not claimed or cannot be proved by a native title claimant.

See Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067 at [48] (Griffiths J).

43    The non-claimant application in this proceeding has been made on the second basis.

44    As Jagot J said in Wagonga at [10(12)], the assessment of whether native title does not exist must be made by reference to the circumstances of each case and on the evidence adduced to the Court.

45    For the following reasons, and being mindful of the gravity of the consequences of making a non-claimant native title determination that operates in rem against the whole world (Mace at [61] and [66]), I am satisfied on the balance of probabilities that the applicant has established that native title does not exist in the application area.

46    First, as at 5 December 2024, there was no native title claim over the application area. As already indicated, the letter from the Tribunal to Mr Boge on 20 November 2024 indicated that a search of the Register of Native Title claims conducted on the same day showed that there were no relevant entries that fell within the external boundaries of the application area. On 5 December 2024, an email from the Tribunal to Mr Boge set out the results of a search of its databases. The search results showed that, apart from the applicant’s non-claimant application, there were no other extant applications for native title in relation to the application area.

47    Secondly, there is no indication that there is any prospect of a native title claim being made in future. The Tribunal’s public notification of the application produced no response. At the end of the notification period, and as at 25 November 2024, there were no notices of intention filed to become a party. No application for joinder has since been filed. While that fact, alone, is not ordinarily compelling, more significantly, the relevant representative body, QSNTS, did not seek to join the proceeding as a party. QSNTS has been an active party in other cases where non-claimant native title claims have been opposed (eg, Mace). As the Full Court said in Mace at [94], “the Court can reasonably expect a representative body for the region in which the non-claimant application land and waters are located to 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”. It would be reasonable to expect QSNTS to have some active engagement with the proceeding if there were evidence or information about prospective native title claimants: see Cornford v State Minister for the State of Queensland [2024] FCA 992 at [33] (Perry J); Lord Penna at [33]; Moller v State of Queensland [2023] FCA 347 at [15] (Kennett J); Moonyanco at [39]; Whip v State Minister for the State of Queensland [2025] FCA 644 at [23] (Raper J).

48    Thirdly, the two previous native title claims by the Bidjara People over the application area were unsuccessful. The Court’s decision in Wyman (No 2), that the Bidjara body of traditional law and custom has not continued, would likely preclude the Bidjara People or groups composed essentially of the same people from bringing a further native title claim over the application area: see Mace at [151]; Fortescue Metals at [14]; Arnaboldi at [33]; Moller at [14]. Thus, the Indigenous people who historically sought to claim native title over the land are not likely able to renew those claims.

49    Fourthly, there have been successful claimant and non-claimant native title determinations in areas close to the application area. In particular, and according to the map and scale provided in the Denaro affidavit, the evidence showed that:

(1)    The successful Moonyanco and Murphy non-claimant applications are within 100 kilometres of the application area. This is evidence that determinations that native title does not exist were made in relation to proximate areas.

(2)    The successful claimant application by the Boonthamurra People was made in relation to an area the external boundary of which is approximately 38 kilometres south of the application area.

(3)    The successful claimant application by the Mithaka People was originally in relation to an area the external boundary of which was within approximately 35 kilometres of the application area.

50    This evidence reveals two matters of importance. First, that there are areas within 100 kilometres of the application area over which native title has been declared to not exist. Secondly, successful claims have been made within close proximity to the application area. Neither the Boonthamurra People nor the Mithaka People sought to be joined as parties to this proceeding. Indeed, the external boundary of the successful claim by the Mithaka People is further away from the application area than their original claim application, following amendment to narrow their claim. These two matters tend to support an inference that there are no persons or groups with a potential native title claim over the application area that is presently objectively arguable: see Mace at [97]; Wagonga at [10(17)].

51    In summary, taking these considerations in combination, the evidence supports the inference that native title does not exist in the application area.

Should the Court nonetheless exercise its discretion against the application?

52    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.

53    Having reached the conclusion that, on the balance of probabilities, native title does not exist in the application area, I have reached the further conclusion that there are no matters that warrant the exercise of my discretion not to make the negative determination. The evidence does not suggest that this is a “rare” case that warrants the exercise of the discretion.

conclusions

54    For the foregoing reasons, I am satisfied that the unopposed non-claimant application should be determined without a hearing pursuant to s 86G of the NTA.

55    I am also satisfied that, on the balance of probabilities, native title does not exist in the application area. Consequently, I am satisfied that a determination should be made that native title does not exist in relation to the land and waters described as Lot 4281 on Crown Plan PH362.

56    There will be no order as to costs.

Associate:

Dated:    19 September 2025