Bartolo v State of Queensland [2022] FCA 100

Barcaldine Region 

The claimed parcel area is approximately 14,400 hectares and is known as 'Valley Downs,' and is presently used for cattle grazing. It is described as Lot 1 on Survey Plan 181888.

The National Native Title Register Extract (QND_2022_001), attached, provides 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: Bartolo(Applicant) and State of Queensland (Respondent)

Judge: SC Derrington J

Determination

The Federal Court of Australia heard an application under section 13(1) (Approved determinations of native title) and section 61(1) (Native title and compensation applications) of the Native Title Act 1993 (NTA) relating to a determination that native title does not exist regarding the land in question, which is located in the Barcaldine region in Central West Queensland.

The Federal Court held that native title does not exist in the entire determination area. 

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

Background

As noted above, the land is a parcel of approximately 14,400 hectares, which is currently utilised for cattle grazing. 

In May 2020, the applicants became the registered lessees of the land. In October 2020, the applicants sought to lodge an application with the Department of Resources for the conversion of the lease to a freehold interest. In May 2021, the applicants were presented with an Agreement to Offer Conversion of the Lease, which was subject to conditions in order for satisfaction prior to the issuance of a deed of grant in freehold of the land. One such conditional requirement included that the applicant provide advice to the Department of Resources of how native title will be addressed, whether by negotiation, the registration of an Indigenous land Use Agreement (ILUA) or by way of filing a non-claimant application.  

Details of Judgment

In borrowing heavily from the judgment of Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41, the Court held that the questions requiring determination before it related to whether the orders sought by the applicants were within the power of the Court and whether it was appropriate for the Court to make those orders (per SC Derrington J at [14]). 

In addition, as the application was unopposed, the Court was permitted, per section 86G(1) of the NTA) to make an order that no native title exists, being satisfied of the following: 

• Power requirement: the Court possessed the power to make a determination given the application falls within the meaning of "determination of native title" under section 13(1)(a) of the NTA, there is no "approved determination of native title" in relation to the land concerned as required under section 13(1)(a) of the NTA and section 61(1)(a) of the NTA, the applicant has an interest in the land, and the Federal Court has jurisdiction per section 81 of the NTA to determine applications filed in the Federal Court that relate to native title (per SC Derrington J at [15] - [16]).
• Appropriateness requirement: the Court held that it was appropriate to make an order determining that no native title exists in relation to the land because "...the uncontested evidence before the Court is that searches conducted with, and information provided by, the NNTT have established that there is no previous determination of native title in the [l]and and that there is no current application in relation to the [l]and nor is there any current application in relation to the [l]and" (per SC Derrington J at [18]). In relation to the two previous native title claims made by the Bidjara People, both of which were dismissed, the Court determined that "...in circumstances where no one from the Bidjara People has sought to be heard on this application, I am satisfied that there is no evidence of any substance that the Bidjara People maintain an interest of any kind in the [l]and" (per SC Derrington J at [22]). In addition, the Court noted that "several enquiries" were made with the representative body for the area covered by the non-claimant application, Queensland South Native Title Service (QSNTS). The Court noted that QSNTS was "aware" that there are people who identify as Kanolou who are likely to assert that they hold native title interests in the land and waters over which the applicants seek to extinguish native title, however QSNTS did not seek intervention or a joinder to the proceedings, with the Court remarking that it is to "...give no weight to the bare assertion...that people who identify as a particular claimant group are 'likely to assert that they hold native title interests', particularly in circumstances where the[re] has been no attempt to substantiate any such possible interests" (per SC Derrington J at [19] - [20]). 

As such, the Court was satisfied that, on the balance of probabilities, that the applicant had discharged their onus of establishing that native title does not exist (per SC Derrington J at [23]). 

Native title does not exist. 

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