WG & DK Ryan Pty Ltd (Trustee) v State of Queensland [2021] FCA 449

Springsure, Central Highlands

The determination area is referred to as Lot 21 on Crown Plan DSN937 Title Reference 40071658. It covers approx. 6.8 hectares.

Registered on the National Native Title Register

Between: WG & DK Ryan Pty Ltd ACN 615 839 819 as Trustee under Instrument 718034273 (Applicant) and State of Queensland (Respondent)

Judge: SC Derrington J

Determination 

There is no native title in relation to the area described as Term Lease 0/239006 over Lot 21 on Crown Plan DSN937 Title Reference 40071658.

Background

The Applicant holds a lease over the determination area (Lot 21) and freehold title over six adjacent and nearby parcels of land. Lot 21 contains a cottage and weighbridge used in conjunction with the grain silos and sheds on the adjacent land parcel.

The Applicant became the leaseholder in 2017, and then in 2020 applied to the Department of Mines and Energy to convert the lease to a freehold title.

This application for a Federal Court determination that native title does not exist in Lot 21 was necessary to address the Department's offer to convert Lot 21 on the condition that the Applicant would, among other things, address any native title interest in Lot 21 [8].

Details of Judgment

The Applicant made this non-claimant application in relation to an area for which there is no approved determination of native title under s 13(1)(a) of the Native Title Act 1993 (Cth).

Justice Derrington noted that there was no existing approved determination, the State did not dispute that the required notification period under s 61 had been properly fulfilled and that no other persons opposed the application [14].

The Applicant substantiated its claim with evidence provided by the National native Tit;e Tribunal that there is no previous determination of native title, nor any current application in relation to Lot 21 [16].

Her Honour considered that Queensland South Native title Services (QSNTS) had been asked about the area and that it had indicated it was 'aware of persons who assert they hold native title in the area' but gave no details about such a claim, nor did QSNTS seek to represent any potential claimant in this proceeding. Her Honour gave no weight to QSNTS's unsubstantiated assertion [17].

Historical native title claims though had been made by the Bidjara People, the Garingbal and Kara Kara People, and the Kangoulu People over part of Lot 21 which were either unregisterable, withdrawn or dismissed [18]-[28]. However, Justice Derrington was satisfied that those claimants had no interest in Lot 21 given that their claims provided no evidence of substance that they had any interest, and had not responded to notice of this proceeding [23[,[25].

Her Honour was satisfied that the Applicant had properly shown, on the balance of probabilities, that native title does not exist over Lot 21 [28].

Native title does not exist

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