Background
The application was made pursuant to s 13(1) of the Native Title Act 1993 (Cth) (NTA) for a determination of native title under s 61(1) of the NTA filed by Loraine and George Bartolo (the applicants). The applicants were seeking a determination that native title did not exist in relation to Lot 1 on Survey Plan 181888, located in the Barcaldine local government area in Queensland (the land). The land was approximately 14,400 hectares and was used for cattle grazing.
On 20 October 2020, the applicants lodged an application with the Department of Resources for the conversion of the Lease to a freehold interest. On 13 May 2021, 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 will address native title with respect to the proposed freehold grant either by negotiation or by filing a non-claimant application. On 19 May 2021, the applicants executed the Agreement to Offer Conversion of the Lease.
The State of Queensland were the only active respondent to the application; they indicated by way of notice under s 86G of the NTA that they did not oppose an order consistent with the terms sought by the applicant.
Evidence
The applicants relied on the affidavit of Loraine Jeanette Bartolo sworn 15 December and an affidavit of Erin Louise Sellentin sworn 16 December 2021.
The applicant tendered an email sent from Queensland South Native Title Services (QSNTS) to the solicitors for the applicants on 8 February 2022 and a map produced by the Department of Resources depicting the area that was the subject of the application and the areas covered by the Bidjara People #5 claim, the Bidjara People #7 claim and the Kanolou People #2 claim.
The applicants and the State of Queensland also had written submissions.
Consideration
The Court had to consider whether the orders sought by the applicant were within the power of the Court and whether it was appropriate for the Court to make those orders.
Decision
In regard to whether the orders sought were within the power of the Court, his Honour considered that there had been no approved determination of native title in relation to the land, nor was there any relevant entries on the Register of Native Title Claims concerned with the land to date, as per the National Native Title Tribunal. Thus, the Court held the order was within the power of the Court, therefore, Derrington J went on to consider whether the evidence satisfied that native title does not exists in the relevant area.
Derrington J considered the evidence from QSNTS, which indicated that the Kanolou People were likely to assert that they held native title interests in the land and waters that the applicants were seeking to extinguish native title. However, his Honour gave no weight to the bare assertion that QSNTS were aware the Kanolou People may assert native title interests, particularly because there were no circumstances where there was an attempt to substantiate any possible interests.
His Honour did consider two historical native title claims over the land, namely by the Bidjara People on the 28 September 2006 and again on 5 November 2021, both were dismissed. Derrington J was content with the reasoning as to why they were both dismissed and was therefore satisfied the Bidjara People maintained no interest of any kind in the Land.
The Court ordered that native title did not exist over the land.