Background
Braidwood Investments (WA) Pty Ltd was the registered lessee of five rolling-term leases near Jundah, Queensland, comprising land known collectively as Braidwood, Wuringle and Grahgor. It applied to convert the leases to freehold title. Queensland required the company to address native title as part of that process, either through an Indigenous Land Use Agreement or a determination that native title did not exist.
The company chose a non-claimant application under the Native Title Act 1993 (Cth), saying it was unaware of a group with which an agreement could be made. The National Native Title Tribunal notified the State, Queensland South Native Title Services, local government and the public. No person sought to join the proceeding or made a competing claim. The State, the sole respondent, did not oppose the orders.
The Court’s Holding
Justice Lenehan determined, on the papers and without an oral hearing under s 86G of the Native Title Act, that native title does not exist over the specified leasehold land. The Court held that the applicant had standing as registered lessee and that the statutory notification period had expired, making the unopposed application capable of determination.
On the balance of probabilities, the applicant established that no native title existed. There was no approved determination or current native title claim over the land; earlier overlapping Maiawali and Karuwali, Mithaka, and Bidjara claims had been dismissed, withdrawn, or amended to remove the overlap; and neither the representative body nor any potential claimant responded to the notifications. Nearby positive and negative determinations were relevant context but not determinative. The Court found no reason to withhold the negative determination and made no order as to costs.
Key Takeaways
- A registered lessee may seek a negative native title determination to facilitate a proposed freehold conversion.
- Non-response to notice is not conclusive, but may carry weight when assessed with the claims history and the representative body’s regional knowledge.
- The applicant retains the burden of proving, on the balance of probabilities, that native title does not exist.
Why It Matters
The decision illustrates the evidence that can support an unopposed non-claimant determination: a completed notification process, absence of current claims, the disposition of historical claims, and contextual evidence from nearby determinations. It also confirms that the Court will independently assess the evidence despite the State’s non-opposition.