Federal Court of Australia

Bowler Enterprises Pty Ltd v State Minister for the State of Queensland [2026] FCA 1678

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:

(a)    Lot 3 on Crown Plan WBN26 (Tenure Reference TL 0/237195);

(b)    Lot 4 on Crown Plan WBN29 (Tenure Reference TL 0/237194); and

(c)    Lot 3252 on SP263569 (Tenure Reference TL 0/237222),

in the State of Queensland.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    By an application dated 31 July 2025 the applicant, Bowler Enterprises Pty Ltd ACN 072 291 260, seeks a determination of native title within the meaning of s 225 of the Native Title Act 1993 (Cth) (Native Title Act). The applicant seeks a determination pursuant to ss 13(1)(a) and 61(1) of the Native Title Act that native title does not exist in relation to the land and waters described as follows:

(a)    Lot 3 on Crown Plan WBN26, known as Juno Downs;

(b)    Lot 4 on Crown Plan WBN29, known as Trewalla; and

(c)    Lot 3252 on SP263569, known as Newhaven

(together the Land).

2    The State Minister for the State of Queensland (the State) is the only respondent to the application. On 22 May 2026 the State filed a notice under s 86G(2) of the Native Title Act that it does not oppose an order being made in, or consistent with, the terms sought by the applicant.

3    The applicant relies on the affidavit of his solicitor, Mr Mark Stewart Boge, affirmed on 2 April 2026 (Boge affidavit), and written submissions dated 2 April 2026. Also relevant is the affidavit of Elloise Rose Laing, a solicitor in the Office of the Crown Solicitor for the State of Queensland, affirmed on 21 May 2026, and submissions on behalf of the State dated 22 May 2026.

4    The applicant and the State have advised the court that they are content for the matter to be determined on the papers without an oral hearing, and I am satisfied that it is appropriate to do so. For the reasons that follow there will be a declaration that native title does not exist in relation to the Land.

FACTUAL MATTERS

The Land

5    The Land is located some 27 kilometres north-west of Jundah in Queensland. The Land is within the area for which Queensland South Native Title Services (QSNTS) performs the functions of a representative body under the Native Title Act.

6    The Land is subject to three rolling term leases within the meaning of s 164 of the Land Act 1994 (Qld):

(a)    Juno Downs is covered by the rolling term lease described as TL 0/237195, granted for a term of 40 years commencing on 1 November 2013 and expiring on 31 October 2053;

(b)    Trewalla is covered by the rolling term lease described as TL 0/237194, granted for a term of 40 years commencing on 1 November 2013 and expiring on 31 October 2053; and

(c)    Newhaven is covered by the rolling term lease described as TL 0/237222, granted for a term of 40 years commencing on 1 November 2013 and expiring on 31 October 2053

(together the Leases).

7    The applicant is, and has been, the registered lessee of the Land since 16 May 2017.

8    On 17 May 2024, the applicant applied to the then-Queensland Department of Resources (now the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development) to convert the Leases to freehold title, with separate applications made in respect of each of the Leases. The Department provided the applicant with letters concerning Juno Downs on 25 June 2025, and each of Trewalla and Newhaven on 1 May 2026, confirming that approval would be sought for a freehold conversion subject to certain conditions, including that the applicant address native title in accordance with the Native Title Act either by way of a determination that native title does not exist or an Indigenous Land Use Agreement (ILUA) in respect of the Land. The applicant filed the application to satisfy that condition. The notification period for the application commenced on 22 October 2025 and ended on 21 January 2026.

9    On 28 January 2026, the National Native Title Tribunal sent correspondence to the Department confirming that there were no relevant entries on the Register of Native Title Claims and Schedule of Applications and Determinations that fall within the external boundaries of the Land.

Previous overlapping native title claimant applications

10    The Land was previously partly overlapped by a native title determination application made on behalf of the Mithaka People in proceeding QUD6033/2002 Scott Gorringe & Ors on behalf of Mithaka People v State of Queensland & Ors, which was filed on 28 November 2002 (Mithaka claim). The overlap was in respect of Juno Downs, which forms the southern part of the Land.

11    The Mithaka claim boundary was subsequently amended to reduce the claim area and remove the overlap with the Land. A determination of native title by consent was made over the Mithaka claim area on 27 October 2015: Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116 (Rangiah J). The determination area the subject of the Mithaka claim no longer overlaps with the Land and is located approximately 70.03 kilometres southwest of the Land. Having regard to the evidence presently before the court, I accept that the Mithaka People have not made another native title determination application in respect of the Land since that time and, consistently with the approach they took in the adjoining proceeding in Murphy v State of Queensland [2021] FCA 81 (Collier J) (Murphy), they have not applied to join as a respondent to the application.

12    I also accept that there are no other previously, or currently, overlapping native title applications over the Land (other than the application itself).

Native title determinations and applications proximate to the Land

13    The State submits, and I accept, that the closest native title determinations to the Land other than the Mithaka claim are as follows:

(a)    Todd TBA Property Pty Ltd v State Minister for the State of Queensland (QUD339/2024), a non-claimant application filed on 24 June 2024, where native title was determined not to exist on 19 September 2025: Todd TBA Property Pty Ltd v State Minister for the State of Queensland [2025] FCA 1151 (Stellios J) (Todd);

(b)    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: Moonyanco Pty Ltd as Trustee under Instrument 719523925 v State Minister for the State of Queensland [2024] FCA 931 (Shariff J) (Moonyanco);

(c)    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: Murphy; and

(d)    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: Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600 (Mansfield J) (Boonthamurra).

14    In respect of each of the above-listed non-claimant applications and the claimant application determined in Boonthamurra, the evidence confirms that the determination area in Moonyanco abuts Newhaven on the Land’s northeast boundary, the determination area in Murphy abuts Juno Downs on the Land’s southwest boundary, the determination area in Todd is located to the east of the Land but does not abut the Land, and the determination area in Boonthamurra is located approximately 77.98 kilometres to the south of the Land and does not abut the Land.

15    I accept on the evidence that there is no approved determination of native title in relation to the Land within the meaning of s 13 of the Native Title Act.

RELEVANT STATUTORY PROVISIONS

16    Under s 13(1)(a) of the Native Title Act, a person who holds a non-native title interest in relation to the whole of an area may make an application of one of the kinds identified in s 61(1) of the Native Title Act for a determination of native title in relation to an area for which there is no approved determination of native title. Such an application is referred to as a non-claimant application. The term “interest”, in relation to land or waters, is defined under the Native Title Act to include “a legal or equitable estate or interest in the land or waters”: Native Title Act s 253. Under s 81 of the Native Title Act, the Federal Court has jurisdiction to hear and determine such an application.

17    A “determination of native title”, as defined by s 225 of the Native Title Act, is “a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters”. Section 94A of the Native Title Act provides that an order in which the court makes a determination of native title must set out the details of each of the matters mentioned in s 225 of the Native Title Act. It is well established that if the court makes a determination that native title does not exist, however, the matters in s 225(a) to (e) of the Native Title Act are not engaged: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 at [57] (North, Mansfield, Jagot and Mortimer JJ) (Badimia People).

18    An “approved determination of native title” has the meaning given by ss 13(3), (4) and (7) of the Native Title Act and relevantly includes a determination of native title made on an application under s 13(1)(a): see Native Title Act s 253.

19    Where an application is made under s 61 of the Native Title Act for a determination of native title there are certain notification steps which must be followed. Pursuant to s 63 of the Native Title Act, the Native Title Registrar must be given a copy of the application, and any accompanying affidavit, agreement or prescribed document, as soon as practicable after it is filed in the Federal Court. Section 66 of the Native Title Act requires the Native Title Registrar to provide copies of the application to the relevant State Minister and the appropriate representative bodies for the area covered by the application: Native Title Act ss 66(1), 66(2), 66(2A). The Native Title Registrar is also required to give notice to certain persons or bodies and to “notify the public in the determined way”: Native Title Act ss 66(3)(a), 66(3)(d). Section 66(10) of the Native Title Act requires a notice given under s 66(3)(a) or (d) of a non-claimant application to include a statement about the possibility of s 24FA protection, that because there can only be one determination of native title for an area if a person does not become a party in relation to the application there may be no other opportunity for the court to take into account the person’s native title rights and interests, and the time limit within which one may elect to become a party.

20    Where a non-claimant application is unopposed within the meaning of s 86G(2) of the Native Title Act, the court is empowered to make a determination without holding a hearing, provided the other requirements of s 86G(1) are met, namely that:

(a)    the period specified in the notice under s 66 of the Native Title Act has ended;

(b)    the court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the court’s power; and

(c)    it appears to the court that it is appropriate to make such an order.

21    Section 86G(2) of the Native Title Act defines the meaning of “unopposed” for the purpose of s 86G(1) as being where “the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.”

RELEVANT PRINCIPLES

22    The discretionary power of the court to make a determination that native title does not exist was affirmed by the majority in Badimia People.

23    As the Full Court in Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 (Mace) observed at [44]:

The question for the Court remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area?

24    The applicant therefore bears the onus of satisfying the court, on the balance of probabilities, that native title does not exist over the area in respect of which the determination is sought: Mace at [44]; Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929; 181 FCR 300 at [88] (Bennett J) affirmed in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 (Moore, Mansfield and Perram JJ).

25    If an applicant is entitled to apply for a non-claimant determination, the reason for seeking the determination does not affect the approach to be applied: Todd at [17], citing Mace at [42], Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10(2)] (Jagot J) (Wagonga) and Moonyanco at [41]. Nevertheless, as Perry J observed in Cornford v State Minister for the State of Queensland [2024] FCA 992 at [37] (Cornford), the reason for which the non-claimant application is made might not necessarily be irrelevant, particularly where the making of the determination has limited utility.

26    The Full Court in Mace found that there is “a clearly established approach” for the determination of both a contested non-claimant application and a non-claimant application to which s 86G of the Native Title Act applies: Mace at [42]–[46]. The decision in Mace was given in the court’s original jurisdiction and is the principal authority concerning non-claimant applications for the determination of native title.

27    In Wagonga at [10], Jagot J comprehensively summarised the principles articulated by the Full Court in Mace as follows:

The following propositions are established in Mace, including principles established by an earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi):

(1)     The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the [Aboriginal Land Rights Act 1983 (NSW)] 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].

28    In Mace at [94]–[95] the Full Court also made certain observations which are relevant to the present circumstances, which can be summarised as follows:

(1)    The weight to be given to the absence of any responses to the public notification process 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”. Further, there can be no prescription that absence of responses to National Native Title Tribunal notifications should be given great weight, or no weight, or something in between.

(2)    What is seemingly more important 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.

(3)    A representative body’s facilitation and assistance functions under s 203BB(1) of the Native Title Act plainly includes assistance in respect of resisting non-claimant applications and as part of these functions there should be some level of active, and proactive, engagement with a non-claimant application, notice of which is required to be given to the representative body.

DETERMINATION

Preliminary matters

29    It is not contested that the applicant is the registered lessee of the Land, and I accept that the applicant holds a non-native title interest in the Land and therefore has standing to bring a non-claimant application.

30    As has been mentioned, nor is there any dispute that the application before the court is unopposed, the State having filed a s 86G notice. Also, the notification period under s 66 of the Native Title Act in relation to the application ended on 21 January 2026 and it is not contested that the applicant has complied with all statutory requirements. In this regard the preconditions to the exercise of the court’s power to make a negative determination have been met.

31    For these reasons, I am satisfied that the court has power to make the order sought by the applicant. The question therefore is whether it is appropriate for the order sought to be made.

Does native title exist in respect of the Land?

32    The applicant submits, and I accept, that in this case there are several factors, taken together, which suggest that native title does not exist in relation to the Land.

33    The first is that although the application was publicly notified and provided to QSNTS and the State pursuant to s 66 of the Native Title Act, there has been no response from any person claiming native title rights and interests in the Land: see Boge affidavit at [12], [14]–[16]. Neither QSNTS, nor any person other than the State, has joined or sought to be joined as a respondent to the application.

34    As I have noted, the absence of any responses to the public notification process does not have a prescribed weight for the court to take into account, but should be considered having regard to all of the circumstances of a particular case: Mace at [94]; Moonyanco at [39]. While it is entitled to some weight, more may be required for a non-claimant applicant to discharge its burden of proof: Mace at [85]–[87]; Moonyanco at [39].

35    In this case the fact that QSNTS has determined not to involve itself in this proceeding, notwithstanding the notification process and its awareness of the proceeding, is significant. QSNTS is the same representative body that was involved in Mace and the Mithaka claim. The State submits, and I accept, that in these circumstances it would be reasonable to expect that there would be some level of active, and proactive, engagement by QSNTS in relation to the application if it had any knowledge of potential native title holders for the Land: see Mace at [94]; Moller v State of Queensland [2023] FCA 347 at [14]–[16] (Kennett J); Russell Estates Pty Ltd v State Minister for the State of Queensland [2023] FCA 1588 at [24] (Collier ACJ); Cornford at [33].

36    As the State submits, there is no evidence before the court of an assertion of native title rights and interests in the Land opposing the applicants’ claim which is objectively arguable: Mace at [97].

37    Secondly, and has been mentioned, there is no approved native title determination covering the Land. Further, the boundaries of the Mithaka claim, which previously overlapped the Land, were amended such that the Land no longer abuts, nor is it overlapped by, the determination area for the Mithaka claim.

38    The applicant submits, and I accept, that the history of the Mithaka claim leading up to the consent determination indicates that the Mithaka People have made a deliberate decision regarding the boundaries of their traditional land. No subsequent claim on behalf of the Mithaka People has covered the Land. Further, no Mithaka person has applied to join this proceeding since it was commenced or has sought to be heard in respect of the application either during the notification period or subsequently.

39    As the State submits, in previous non-claimant applications which abut the Land and in which the Mithaka People did not seek to be heard in relation to those matters, the court has been satisfied that there is no evidence of the Mithaka People having a relevant interest in that land: Murphy at [41]; Moonyanco at [40].

40    The affidavit evidence before the court also establishes that there are no other applications seeking a determination of native title which are currently registered over the Land or any ILUA overlapping the Land. As the applicant submits, there is no group of which it has been made aware with which it could make an ILUA.

41    Finally, it is also relevant that there have been several successful non-claimant applications for negative determinations in areas adjoining the Land.

The applicant has discharged its onus

42    Recognising that none of these matters are necessarily determinative on their own, I consider that it is well open to the court having regard to these factors taken together to infer that native title does not exist over the Land, and that it is appropriate to make the negative determination sought by the applicant. In the circumstances I am satisfied that the applicant has discharged its onus of establishing, on the balance of probabilities, that native title does not exist over the Land.

43    There will, accordingly, be a declaration substantially in accordance with that sought in the application.

Associate:

Dated:    10 November 2026