Background
This case concerned a non-claimant application made pursuant to s 13(1) of the Native Title Act 1993 (Cth) (NTA) that native title does not exist with respect to Lot 10 on Crown Plan PO65. On 24 June 2018, Toni-Ann Maree Prow, William Walter Kevin Prow, Charles William Prow and Gail Margaret Prow (the applicants) lodged an application with the Department of Resources for the conversion of their lease to a freehold interest. The Department presented the applicants with an Agreement to Offer Conversion of the Lease, subject to certain conditions. These conditions included a requirement to provide written advice to the Department as to how they would address native title by way of negotiation, registration of an Indigenous Land Use Agreement, or by way of filing a non-claimant application that native title does not exist with respect to the relevant land.
The land is approximately 40,400 hectares and used for grazing of cattle. The State of Queensland were the only respondent to the application and indicated by way of notice under s 86G of the NTA that it did not oppose an order in, or consistent with, the terms sought by the applicant. There has been no approved determination of native title in relation to the land to date, however, there were six unsuccessful historical native title claims, which were key to the findings made in this case.
Considerations
Because the State offered no opposition, the key issues were whether the orders sought were within the powers of the court, and whether it was appropriate for the court to make the orders. All of the procedural elements that determine whether a matter is within the power of the court had been met, therefore the court only had to consider whether the orders sought were appropriate. To determine whether it was appropriate for the Court to make the orders sought, Derrington J examined the historical native title claims in the area, associated with the Bidjara and Budjiti People.
Decision
With respect to the Bidjara People, Derrington J deferred to the ruling made in Mace v State of Queensland [2019] FCAFC 233. In that case, the Federal Court found that the Bidjara People’s native title rights and interests could not be recognised due to insufficient evidence that they had an ongoing connection to the land and any cultural or traditional practices associated with it. It was noted that existence of cultural heritage sites was insufficient in proving a continuity of connection to land as required by the NTA. Derrington J came to the same conclusion with respect to the Budjiti People, finding there was no evidence that the Budjiti people maintained an interest of any kind in the land, despite a previous overlapping native title claim.
Due to the finding that neither the Bidjara People nor the Budjiti People maintained the requisite interest in the land to substantiate a successful native title claim, His Honour found it appropriate to make the order in accordance with the terms sought by the applicants, that native title does not exist with respect to Lot 10 on Crown Plan PO65.