James Speed Company Pty Ltd v State of Queensland [2022] FCA 626

Barcaldine Region 

The claimed parcel area is approximately 30,900 hectares, and is described as Lot 1118 on Survey Plan 273891, referred to as North Delta. The land parcel is approximately thirty kilometres southeast of Barcaldine in Queensland. South of the determination area is Idalia National Park. 

The National Native Title Tribunal Extract (QND2022_002) attached, provide a written description of the area covered.

The area is within the jurisdiction of the Barcaldine Regional Council.

Registered on the National Native Title Register

Between: James Speed Company Pty Ltd (Applicant) and State of Queensland (Respondent)

Judge: Burley J

Determination

The Federal Court of Australia heard an application under section 13(1)(a) (Approved determinations of native title and section 61(1) (Native title and compensation applications) of the Native Title Act 1993 (NTA) for a determination that native title does not exist in relation to the parcel of land of approximately 30,900 hectares located in the Barcaldine local government area. 

Native title does not exist in the entire determination area.

Full text of the determination is available via the URL link above.

Background

The applicant is the registered lessee of the land, the lease of which was granted in April 1963 and was initially to expire in March 1993, though this was extended to March 2056. 

In June 2020, the applicant applied to the Queensland Department of Resources to convert the lease to freehold title. As part of the conversion application, the applicant was required to address any native title aspects, and therefore filed the determination application in February 2021 (per Burley J at [7]). 

In April 2021, the National Native Title Tribunal publicly notified the application in publications including the Koori Mail and the Longreach Leader. 

A search of the Native Title Claims Register in August and September 2021 indicated that the land had been the subject of five previous native title claims on behalf of the Bidjara People, which had either been withdrawn, discontinued, or dismissed (per Burley J at [10]-[13]).  

Details of Judgment

The Court locates the power of determining native title, which includes a negative determination, "to the effect that native title does not exist," in both section 13(1)(a) and section 225 of the NTA (per Burley J at [13]). 

Borrowing significantly from Mace v State of Queensland [2019] FCAFC 223; 274 FCR 41, the Court affirmed the following principles for determining native title claims (per Burley J at [23]):

• "At one end of the evidentiary scale, there may be no need to go beyond proof of an extinguishing grant of freehold title" 
• "At the other end are contested cases in which an Indigenous respondent gives evidence about that person's connection, under traditional law and custom, to the land in question" 
• "Where there is no evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which could 'cast doubt' on the case brought by the applicant that no native title exists" 
• "The Court must act on evidence and does not speculate about the possibility of the existence of native title rights and interests...As such, an application for a negative determination does not involve any general inquiry into what native title rights and interests may have existed at the time of sovereignty, or effective sovereignty; nor any general inquiry into how those rights and interests may or may not have continued." 

As a result of both the application being unopposed and the respondent outlining that it does not oppose an order in, or consistent with, the terms sought by the applicant, the Court was satisfied that the applicant had discharged its burden of establishing that its application be allowed (per Burley J at [26]). This enabled the Court to determine that "[t]here are no matters arising from the evidence in this case which would render it inappropriate to make a negative determination" (per Burley J at [35]). 

Native title does not exist. 

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