The Court determined pursuant to s 13(1)(a) of the Native Title Act 1993 (Cth) (NTA) that no native title exists in respect of the land described as Lot 80 on Survey Plan 232697 in the State of Queensland.
This matter concerned a non-claimant application pursuant to s 61(1) of the NTA brought by Glenvale Holdings Pty Ltd in respect of land described as Lot 80 on Survey Plan 232697 in the Parish of South Toolburra, County of Merivale in the State of Queensland. The land is a parcel of approximately 31.35 hectares located in the Rogers Creek area, some 27 kilometres west of the town of Warwick in the Southern Downs local government region in Queensland. Glenvale Holdings sought a determination that native title does not exist in relation to the land. The only parties to this application are Glenvale Holdings and the State of Queensland. The State did not oppose the application.
The applicant claims a non-native title interest in the land within the meaning of the definition of the term 'interest' in s 253 NTA, as a result of holding a term lease for grazing purposes over the land for a 30 year term expiring on 26 August 2032. The sole director of Glenvale Holdings, Mr Edward Barber, proposes to reconfigure all the land in the parcel so that each resulting block has a roughly equal amenity, area and access to a road for family estate planning. Glenvale Holdings cannot reconfigure the parcel unless Lot 80 is freehold.
The applicant applied by application dated 25 August 2017 to the Queensland Department of Natural Resources and Mines (DNRM) for the land to be converted to freehold. The DNRM advised the applicant that it would not deal with the application unless there was a determination of the Federal Court that native title does not exist in respect of the land.
Collier J noted the evidence before the Court contained in the email of Mr Jeff Harris of Queensland South Native Title Services (QSNTS) dated 23 March 2018 annexed to Ms Samantha O’Neil’s affidavit sworn 6 April 2018, that ‘two groups assert to the area, the Githabul People and Gambuwal People’, however her Honour accepted the submission of the applicant that the ‘assertion’ is potentially to a broad region, rather than the land in question.
Her Honour considered it appropriate to make the order sought where:
the application is unopposed;
public notice of the non-claimant application has been given under s 66 NTA and it is not in dispute that no response has been received following that notice;
there is no current native title application in relation to the land;
there is no previous approved determination of native title in relation to the land; and
the reason for the non-claimant application has been explained by the applicant, and is a satisfactory explanation.
Collier J noted that notice of the non-claimant application was given to QSNTS, which is the relevant representative body under s 66 NTA. Despite the statement that two groups ‘assert’ to the area, neither QSNTS nor either of the native title groups with a potential interest have sought to be joined as a party to the proceedings. Accordingly, her Honour was satisfied that the Court has power, and it is appropriate, to make a determination as sought by the applicant, that native title does exist in relation to the land.