Federal Court of Australia

Metropolitan Local Aboriginal Land Council #4 v Attorney General for New South Wales [2026] FCA 1074

ORDERS

THE COURT DETERMINES THAT:

1.    Native title does not exist in relation to the area of land and waters in the State of New South Wales comprised and known as Lot 2 Deposited Plan 1293455.

THE COURT ORDERS THAT:

1.    There be no orders as to costs.

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, Metropolitan Local Aboriginal Land Council (Metropolitan LALC), a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW), seeks a determination under s 13 of the Native Title Act 1993 (Cth) that no native title exists in relation to the land and waters comprising Lot 2 Deposited Plan 1293455 (the Land and Application Area), located in the Willoughby City Council local government area. The Land is in metropolitan Sydney and comprises a series of eight tennis courts, with associated buildings and infrastructure, adjacent to extensively developed residential land.

2    Metropolitan LALC holds a non-native title interest in the Land, being an interest in fee simple, subject to any existing native title rights, pursuant to s 36 of the ALRA and is the registered proprietor of the parcel comprising the Application Area. By reason of it not having a native title interest, its application is a “non-claimant” application under the NT Act.

3    Metropolitan LALC brings this application for such a determination because it is otherwise impeded in its capacity to “deal” with the Land, pursuant to s 42 of the ALRA: see Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 at [8]-[11]; Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210; 287 FCR 1 at [14].

4    Accordingly, the relevant issues requiring resolution are whether the Court has the power to make the orders sought by Metropolitan LALC and if so, whether it is appropriate for the Court to make them: Armidale Local Aboriginal Land Council v Attorney General of New South Wales [2024] FCA 50 at [18] per Shariff J.

5    For the reasons which follow, I am satisfied that the non-claimant application should be allowed, the negative determination sought by Metropolitan LALC is within the power of the Court and it is appropriate to make that order.

Role of the Attorney General

6    The Attorney General of New South Wales is the First Respondent in these proceedings in his capacity as the State Minister responsible for the administration of the NT Act. Pursuant to s 84(4) of the NT Act, if any of the area covered by the application is within the jurisdictional limits of the State, the State Minister is a party to the proceedings unless the State Minister confirms they do not wish to be a party. Premier’s Memorandum M2024-04, Native Title administration confirms that the Attorney General is the state minister responsible for native title under the NT Act.

7    The State Minister submitted that, as the nominated State Minister, the Attorney General’s views are relevant to the determination of the application as the State Minister has a role in native title proceedings in the nature of parens patriae, “to look after the interests of the community generally” (citing Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]; Watson v State of Western Australia (No 3) [2014] FCA 127. The State Minister submitted that this principle, while first articulated in the context of consent determinations of native title, has also been applied to non-claimant applications, citing Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936; 373 ALR 667 at [8] per Perry J; Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 813 at [13] per Raper J; Armidale at [16] per Shariff J. The State Minister must be “satisfied as to the cogency of the evidence upon which the applicants rely”: Munn at [29] per Emmett J.

8    The State Minister does not oppose the orders sought by Metropolitan LALC.

Role of NTSCORP

9    NTSCORP is funded under s 203FE(1) of the NT Act for the purpose of performing the functions of a native title representative body for New South Wales and the Australian Capital Territory. In accordance with s 203FEA of the NT Act, NTSCORP has the same functions and powers as a recognised representative body in relation to NSW and the ACT as set out in ss 203B to 203BK of the NT Act.

10    NTSCORP does not oppose the application but rather made submissions (and tendered evidence) directed to the statutory functions it has carried out with respect to the application which include, concerning the existence of notifications concerning the relevant Land, its ability to identify interested persons and to assist persons if it is requested to do so.

Disposition

11    Section 13 of the NT Act allows for an application to be made to the Court for a determination of native title in relation to an area for which there is no approved determination of native title. Pursuant to s 81 of the NT Act, this Court has jurisdiction to hear and determine such an application.

12    An application for a determination of native title may be made by, inter alia, 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, pursuant to s 61(1) NT Act. Section 253 of the NT Act defines a non-claimant application to mean “a native title determination application that is not a claimant application”, and defines interest to include, in relation to land or waters, “a legal or equitable estate or interest in the land or waters”. Metropolitan LALC holds an interest in fee simple in the parcel comprising the Application Area

13    Metropolitan LALC bears the onus of satisfying this Court, on the balance of probabilities, that native title does not exist over the area in which the determination is sought: Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (No 2) [2008] FCA 1929; 181 FCR 300 at [88] per Bennett J, upheld on appeal in Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 at [53]–[60].

14    The question for the Court remains the same whether the application is unopposed or contested, which is whether the applicant has discharged its burden of proof that no native title exists in the claim area: Mace at [44]. The matters Metropolitan LALC needs to address include whether there are any matters which would make it inappropriate for a determination of native title to be made, even if the applicant has proven on the balance of probabilities that no native title exists: Mace at [72]-[73]. The fact that Metropolitan LALC, in its non-claimant determination applications, carries the onus of proof has recently been affirmed by the Full Court in North Queensland Land Council Native Title Representative Body Aboriginal Corporation (ICN 1996) v Harris [2025] FCAFC 70; 309 FCR 302 where the Court said at [11]:

The party seeking a determination that native title does not exist must still adduce evidence that discharges that onus and such an application can be successfully opposed on the basis that the evidence adduced is insufficient (even where no affirmative evidence is adduced to support the existence of an objectively arguable claim of native title).

15    The parties agreed that the correct approach to the determination of non-claimant applications was stated by the Full Court in Mace, and subsequently by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113.

16    In Wagonga at [10], Jagot J summarised the key aspects of the correct approach identified by the Full Court in Mace by setting out a series of 17 propositions:

(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].

17    There are two separate ways in which an applicant can establish that no native title exists in relation to land the subject of a non-claimant application:

(1)    by establishing that no native title exists in the claimed land because it is not claimed by or cannot be proved by a native title claimant (this limb was the subject of detailed consideration by the Full Court in Mace and more recently, by the Full Court in Harris); or

(2)    by establishing that any native title which may have existed has been extinguished: Mace at [49]; Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067 at [48]; Worimi Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1329 at [97]-[98]; Gandangara Local Aboriginal Land Council v Attorney-General (NSW) [2013] FCA 646, in particular, at [64]-[70].

18    In this case, Metropolitan LALC has chosen the first way.

19    Even in the absence of any opposition to the making of an order, the Court must be satisfied that native title does not exist before making a determination, as the Court has explained in Coonamble Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 938, a “determination of native title is not an ordinary inter partes question and the lack of opposition is not determinative”: at [10] and Mace at [72]-[73]. The Court must be satisfied that it is appropriate to make the order: Mace at [72]. Each case must be addressed according to its own particular facts and circumstances: Worimi at [58].

20    Metropolitan LALC relied on the affidavit of Christopher Turner affirmed 6 February 2026. Mr Turner (solicitor) gives evidence as to Metropolitan LALC’s statutory notification of its non-claimant application, the conducting of a search of the Native Title Claims register which showed there were no relevant entries which fall within the external boundary of the non-claimant application, an overlap analysis undertaken by the National Native Title Tribunal and the report that followed, a search of the NNTT’s determinations database that revealed there had been no determinations of native title within the Willoughby local government area, a previous but discontinued native title determination application by the Boongary Clan of the Taurai People (where it is not submitted that the relevant area overlapped with the current application area), historical land status reports and details of the current use of the Land.

21    The State Minister relied on the affidavit of Alexander Johnpulle sworn 13 March 2026. Mr Johnpulle (solicitor) gives evidence of a review of searches conducted on the NNTT website in respect of any former native title applications concerning areas surrounding the Land which identified two claimant applications in the vicinity of the Land being the Eora People claimant application (NC1998/010) and the Darug Tribal Aboriginal Corporation claimant application (NC1997/008). The first claim was discontinued, the second dismissed (though there is no evidence as to the basis for dismissal).

22    NTSCORP relied on the affidavit of Akira Naidoo affirmed 27 March 2026. Ms Naidoo (solicitor) gave evidence on NTSCORP’s functions and role in relation to the non-claimant application, NTSCORP’s notification and publication of the non-claimant application, that no responses were received by NTSCORP as a result of this notification/publication and that NTSCORP plans on undertaking anthropological research to assist in the Court’s determination. NTSCORP identified two person on its Notifications Database as persons who may assert or hold native title rights and interests in relation to the area and attempted to contact both of them in October 2025 but received no response.

The proposed orders are within the Court’s power

23    An application may be made to this Court, pursuant to Pt 3 of the NT Act, for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)). The application was made in the prescribed form, Form 2, in accordance with s 61(5) of the NT Act.

24    Pursuant to s 61(1) of the NT Act a person may make a native title determination application under s 13(1): Armidale at [10]. “Interest” in relation to land or waters is defined in s 253 of the NT Act and includes “a legal or equitable”, “estate or interest” in the land or waters. I accept that Metropolitan LALC has an interest in the Land by virtue of being the registered proprietor over the Land: s 253 of the NT Act. The title folio for the Land shows that Metropolitan LALC is the registered proprietor of the Land (attached to the application).

Metropolitan LALC has established that no native title exists in relation to the Land

25    I am satisfied that Metropolitan LALC has established, on the balance of probabilities, that no native title exists in relation to the Land.

26    First, the evidence establishes that the formal statutory conditions for making an approved determination that no native title exists have been met.

27    The Native Title Registrar is required to undertake a notification process in accordance with s 66 of the NT Act. As part of this notification process, the Registrar must provide a copy of the application to the relevant State Minister (s 66(2)), and to other appropriate representative bodies (s 66(2A)), as well as to give notice to persons or bodies specified under s 66(3)(a), and to notify the public (s 66(3)(d)). The relevant notice for which each of those persons must be informed must include a statement to the effect that “a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day” or “get the leave of the Federal Court … to become a party” (see s 66(10)(c)). Upon the expiry of that period, the notification requirement is satisfied.

28    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 7 January 2026. I am satisfied that each of the persons and bodies required to be notified under s 66 of the NT Act have been notified and that the notice was published in the Koori Mail and North Shore Times on 24 and 25 September 2025 respectively. I am also satisfied that the Court has the power to make the order in the terms sought by Metropolitan LALC.

29    The Registrar notified the legal representatives for Metropolitan LALC that a copy of the non-claimant application had been given to other listed individuals and entities, as required by ss 66(2A) and 66(3) of the NT Act.

30    I accept that the Registrar has satisfied the notification requirements under s 66 of the NT Act. I am satisfied that no other parties (save for NTSCORP) sought to be joined as parties at the end of that period.

31    The evidence establishes that the Registrar provided notice, pursuant to s 66(3)(a) of the NT Act, to any registered native title claimant, any registered native title body corporate and any representative Aboriginal/Torres Strait Islander body in relation to the Application Area. Notices of the application, as stated above, were placed in two newspapers. No responses were received.

32    I accept the submission of NTSCORP that the absence of such responses is not necessarily a reliable indicator that there are no persons or groups who assert native title in a non-claimant application area, especially a notification process based on newspapers and not on social media, or other forms of media communication, when vast amounts of public and community communications now occur through social media rather than through newspapers: Mace at [92]. In each case, the Court needs to determine on all of the evidence whether to draw any particular inferences from the absence of responses to the notification process: Mace at [94]. However, it is my view, by reason of the other notification processes undertaken by NTSCORP, that account may be taken of the absence of a response as part of this process, together with the other notification attempts below.

33     Secondly, the evidence establishes that there are no native title claims over the Application Area: A search was conducted by the NNTT of the Native Title Registers, as confirmed by letter dated 14 January 2026. The search confirmed that there were no native title claims over the Application Area, as is required under ss 13(1) and 61A(1) of the NT Act.

34    Thirdly, the evidence establishes that there are no current overlapping native title determinations nor applications. Metropolitan LALC relied on the evidence of Mr Turner as to the number of searches undertaken to identify other relevant applications or determinations.

35    The evidence, at its highest, revealed the following:

(a)    An historical search revealed an application was made on behalf of the Boongary Clan of the Taurai People (in Federal Court proceedings NSD6097/1998) but which was discontinued in June 2000. The registration history referred to it being registered between 1 April 1998 and 1 December 1999 but that it was “not accepted for registration”. It is not clear from the imprecision of the map of the registration area nor did any party submit, that it overlaps with the area of this Application Area.

(b)    The State Minister’s search of surrounding areas revealed two applications, one by the Darug Tribal Aboriginal Corporation (NC1997/008) which was discontinued on 8 March 2011 and the other by the Eora People (NC1998/010) which was dismissed on 17 August 2000 (but without indicating the basis).

(c)    The NTSCORP Notifications Database identified two individuals, who may assert or hold native title rights and interests in relation to the Land but who did not respond when contacted.

36    It may be accepted that the existence of the previous native title claims (to the extent that the claims were with respect to or nearby the Land), and the nature of those claims, may be relevant to the Court’s consideration: Mace at [48]; Coffs Harbour and District Local Aboriginal Land Council v Attorney-General of New South Wales [2025] FCA 755 at [51]. The evidence does not establish that the Boongary Clan claim was with respect to the same Land nor precisely how it relates to the Land in question.

37    The former Boongary Clan claim was the subject of a negative registration decision in December 1999 and there have been numerous determinations that native title does not exist within the external boundaries of the Boongary Clan claim: Metropolitan Local Aboriginal Land Council #2 v Attorney-General of New South Wales [2025] FCA 610 (Metropolitan LALC (No 2)); Biraban Local Aboriginal Land Council v Attorney-General of New South Wales [2022] FCA 144; Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1506; Awabakal Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1507; Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236. In Biraban Abraham J stated at [41]:

The Attorney General agreed that it is open to the Court to find that the mere existence of the prior claim[s], in the absence of any substantive evidence from the Boongary Clan that they maintain their claim and where they have not sought to be heard, is not sufficient in this instance to weigh against making the determination sought. That is to be accepted.

38    As observed by Jagot J in Wagonga, at [10] sub-paragraphs (5) and (17) respectively:

[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]

…

[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].

(emphasis added)

39    The Court does not have before it evidence of an assertion of native title which is objectively arguable in the parcel comprising the Application Area.

40    I do accept that the two nearby native title claimant applications may also be relevant, being the Eora People claimant application (NC1998/010) and the Darug Tribal Aboriginal Corporation claimant application (NC1997/008) and that the fact of them must be taken into account. However, the Full Court in Mace at [163] stated that a non-claimant is not required to address a discontinued claimant application as if it were still pressed, and they went on to state at [164]:

While issues of resources, access to notifications and the like might explain why individual members of a discontinued or withdrawn native title claim may not come forward in a timely way to respond to a non-claimant application, those factors do not explain the complete absence of information held by NTSCORP that any person, at the time of this non-claimant application, may assert native title rights and interests in the non-claimant application area. Nor does it explain that there was not a single person identified by NTSCORP in the searches it undertook after receipt of the non-claimant application notification from Darkinjung’s solicitor. It is unclear, for reasons we explain below, why the Awabakal and Guringai People did not appear in NTSCORP’s records so as to prompt a notification to them. This evidence contributes to an inference that whatever might have been the situation in the past, the situation at the time this non-claimant application falls to be decided is that there are no persons or groups who assert native title rights and interests in the claimed land.

41    Having said this, I accept that the Court ought, in cases of this kind, go no further in making factual findings than is necessary. As a consequence, I make no findings, one way or the other, about any of the surrounding land. I find that there have been claims about nearby land, as identified above, and that those claims have been discontinued or dismissed but I make no other findings with respect to those other areas.

42    Fourthly, a search was conducted of the Aboriginal Heritage Information Management System Web Service (AHIMS) which revealed that there were no Aboriginal sites recorded as being within 50 metres of the Application Area and no Aboriginal places being declared within 50 metres of the Application Area. I accept that the presence of Aboriginal sites or places is potentially relevant. Metropolitan LALC submitted that while the absence of Aboriginal sites is not determinative of whether or not native title exists in an area (citing Metropolitan LALC (No 2)) at [31]-[32]), this absence, together with evidence of urban development that substantially changes the character of the area, is relevant to the Court's evaluation of whether traditional connection was not sustained. Metropolitan LALC submitted that Jagot J formed this conclusion in comparable circumstances in Wagonga at [421(3)]. I do not accept this submission entirely.

43    As observed by Hill J, in Metropolitan LALC (No 2) at [33], the fact that the application area was "an area that has been the subject of significant residential development" goes to the question of extinguishment of native title, which was not a matter raised by that application. Further, Aboriginal heritage and native title are distinct concepts and therefore the absence of such sites or places is not determinative of whether native title exists in relation to an area: Metropolitan LALC (No 2) at [32].

44    Fifthly, account may be given to the fact that NTSCORP is the native title representative body for New South Wales and the Australian Capital Territory. NTSCORP maintains a database of persons and organisations who may assert or hold native title rights and interests in NSW and the ACT. A search of their register identified two persons who may assert or hold native title rights and interests in relation to the Application Area. In October 2025, a representative of NTSCORP notified the two persons on their database and no response was received. NTSCORP thereafter received no requests for any assistance in relation to the Land. Further, no anthropological report has previously been produced by or on behalf of NTSCORP in relation to the Land or any land nearby.

45    NTSCORP submitted that the lack of any response to the notification of an unopposed non-claimant application does not necessarily conclude the issue of whether there are any persons who assert native title rights in relation to the Land and/or the nearby land. NTSCORP noted in this regard that no anthropological report has yet been produced by or on behalf of NTSCORP. NTSCORP submitted that, notwithstanding this, the question remains, in all the circumstances, has the applicant discharged its burden of proof that no native title exists in the Land, citing Biraban at [34].

46    NTSCORP submitted that evidence of the notification process and the absence of any responses will not be the only evidence before the Court regarding a non-claimant application. NTSCORP submitted that the weight to be given to the absence of any responses must 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.

47    However, 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]. This includes that account may be taken of the absence of any responses, as observed by Perry J, in Cornford v State Minister for 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).

48    As observed by Kennett J in Metropolitan Local Aboriginal Land Council #3 v Attorney-General of New South Wales [2026] FCA 595 (Metropolitan LALC (No 3)), at [134], when considering the significant degree of caution in finding an absence of native title:

……that consideration should not be an insuperable barrier for a non-complaint applicant who has sought a negative determination is good faith and ensured that the relevant notification procedures have been undertaken. While a non-claimant applicant can properly be expected to marshal the evidence necessary to sustain a submission that native title has been extinguished, providing a negative in relation to the existence of any Aboriginal people with a continuing connection to the land presents quite a different challenge. Such an applicant may not be able to do more than show that its application has been publicised and no native title claimant has come forward.

49    Further, I accept the observation of Hill J in Metropolitan LALC (No 2), which was also approved by Kennett J in Metropolitan LALC (No 3), synthesising (from previous authority) relevant considerations, that attend to the question of whether the applicant had satisfied the burden of proving on the balance of probabilities that no native title existed, at [28]:

Wagonga at [10] (propositions (1), (3)-(4), (7), (10)-(14), (16)); Harris at [9] (points (1)-(3), (5)-(6), (11)).

(2) Relevant considerations 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: Wagonga at [10] (proposition (5)); see also Harris at [9] (points (9) and (10)).

(3) 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. The principal evidence that is likely to impede the grant of a negative determination is evidence of an assertion of native title in the relevant land which is objectively arguable, not evidence of the potential for the assertion of native title: Wagonga at [10] (propositions (8) and (17)); see also Harris at [9] (point (4)).

50    Metropolitan LALC submitted that, in these circumstances, and consistent with the approach in Mace, the Court can therefore be satisfied on the balance of probabilities that native title does not exist in the parcel comprising the Application Area because:

(1)    No Aboriginal person has sought to be joined to the proceeding as a respondent;

(2)    No claimant application has been made in relation to the Application Area in response to the notification of the non-claimant application in accordance with the NT Act;

(3)    There is no evidence of any kind before the Court from any Aboriginal person or group asserting a connection to any part of the Application Area or otherwise asserting native title rights and interests in relation to it; and

(4)    NTSCORP has performed its direct notification functions by providing notice of the present non-claimant application to those persons or organisations currently identified on the NTSCORP Notifications Database as having interests as persons who may hold native title in the Land and/or the nearby land, none of whom sought to become a party to the present proceeding.

51    It is my view that, by reason of not only the matters raised by Metropolitan LALC but by reason of all of the matters referred to above, these matters are sufficient to sustain a finding that no native title exists in the subject Land.

Conclusion

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

Associate:

Dated:    5 August 2026