Background
Stanbroke Pty Ltd applied under s 61(1) of the Native Title Act 1993 (Cth) for a determination that native title does not exist over approximately 18,200 hectares of Donors Hill South, a pastoral property in Far North Queensland. The application concerned the part of Lot 3 on Survey Plan 287775 west of the Cloncurry River, excluding land already covered by the Mitakoodi and Mayi People #5 determination and land within the Gkuthaarn and Kukatj determination area.
Stanbroke holds a rolling pastoral lease over Donors Hill South and had accepted an offer to convert the land to freehold. One condition of that conversion required Stanbroke either to obtain an Indigenous Land Use Agreement surrendering native title or a Federal Court order that native title does not exist. No approved native title determination or current claim covered the Area. Earlier claims affecting it had been withdrawn, amended to remove the land, or discontinued.
The Court’s Holding
Justice Moshinsky granted the application and determined that native title does not exist in relation to the Area. The Court held that Stanbroke had met the statutory preconditions for a non-claimant application and had established, on the balance of probabilities, that native title did not exist.
The Court gave weight to the absence of a current registered claim, the history of earlier claims, and the lack of opposition after public notification. The Carpentaria Land Council was notified by the National Native Title Tribunal and personally served, but did not appear. The State did not oppose the application, and no other person came forward. Evidence of longstanding, intensive pastoral use—including fencing, watering infrastructure, cattle operations and daily staff activity—was at least consistent with the conclusion that native title did not exist. There was no order as to costs.
Key Takeaways
- A non-claimant applicant must prove on the balance of probabilities that native title does not exist, while accounting for the gravity and permanence of a negative determination.
- The absence of current claims and opposition after proper notice can be significant, but must be considered with the land’s tenure, claim history and other evidence.
- The determination cleared the relevant part of Donors Hill South for Stanbroke’s proposed tenure-conversion process.
Why It Matters
The decision illustrates the evidentiary foundation required for a negative native title determination. A history of unsuccessful or withdrawn claims alone was not decisive; the Court also relied on proper notification, the representative body’s non-participation, and evidence about the Area’s use and history.
For pastoral lessees pursuing freehold conversion in Queensland, the case shows how a Federal Court determination may satisfy a native-title condition where no native title party comes forward and the available evidence supports the conclusion that native title does not exist.