Bartolo v State of Queensland

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FEDERAL COURT OF AUSTRALIA

Bartolo v State of Queensland [2022] FCA 100   

File number(s): QUD 170 of 2021
Judgment of: SC DERRINGTON J
Date of judgment: 15 February 2022
Catchwords:  NATIVE TITLE – non-claimant application for determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (‘NTA’) – determination sought under s 86G of the NTA that no native title exists over the determination area – whether within power and appropriate to make the orders sought – order made in the terms sought  
Legislation: Native Title Act 1993 (Cth) ss 13, 61, 66, 81, 86G, 225
Cases cited:

Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1507

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466

Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717

Mudgee Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 668

Murphy v State of Queensland [2021] FCA 81

Prow v State of Queensland [2021] FCA 1532

Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113

WG & DK Ryan Pty Ltd (Trustee) v State of Queensland [2021] FCA 499

Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320
Division: General Division
Registry: Queensland
National Practice Area: Native Title
Number of paragraphs: 24
Date of hearing:

14 February 2022
Counsel for the Applicant: Mr M McKechnie
Solicitor for the Applicant:  Barron & Allen Lawyers Mackay
Counsel for the First Respondent: Ms G Rashford
Solicitor for the First Respondent: Crown Lawyers

ORDERS

QUD 170 of 2021
BETWEEN:

LORAINE JEANETTE BARTOLO & ANOR

Applicant
AND:

STATE OF QUEENSLAND

Respondent

ORDER MADE BY:

SC DERRINGTON J

DATE OF ORDER:

15 FEBRUARY 2022

THE COURT ORDERS THAT:

1.There is no native title in relation to the land that is described as Lot 1 on Survey Plan 181888 located in the Barcaldine local government area in the State of Queensland.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SC DERRINGTON J:

INTRODUCTION

  1. This is an application 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 the applicants, Loraine and George Bartolo. The applicants seek a determination that native title does not exist in relation to Lot 1 on Survey Plan 181888, located in the Barcaldine local government area in Queensland (the Land). The applicants are the registered lessees of the Land.

  2. The State of Queensland is the only respondent to the application. There was no appearance by any other party. The State of Queensland has indicated by way of a notice under s 86G of the NTA that it does not oppose an order in, or consistent with, the terms sought by the applicant.

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Details
Case
[2022] FCA 100
Decision Date

CaseChat Overview and Summary

Bartolo and others brought an application against the State of Queensland in the Federal Court of Australia, seeking a declaration that native title does not exist over a parcel of land known as 'Valley Downs'. The applicants, who are the registered lessees of the land, had applied for the conversion of their lease to a freehold interest, subject to certain conditions, including addressing native title. They sought a non-claimant declaration that native title does not exist over the land to proceed with the conversion. The legal issues before the court were whether the applicants had established, on the balance of probabilities, that native title does not exist over the land and whether the court could make an order under section 86G of the Native Title Act 1993 (Cth) without holding a hearing.

The court found that the applicants had discharged their onus of establishing, on the balance of probabilities, that native title does not exist over the land. The court considered the evidence and submissions provided by the parties and concluded that the applicants had satisfied the requirements for a non-claimant declaration. The court also noted that the application was unopposed, and it was appropriate to make an order without holding a hearing. The court referred to the principles established in earlier cases and found that the applicants had met the necessary standard of proof.

The court made a declaration that native title does not exist over the land, and the applicants are free to proceed with the conversion of their lease to a freehold interest. The court also noted that the declaration is subject to appeal and that the applicants must still satisfy the other conditions for the conversion, including addressing native title. The court's decision provides clarity for the applicants and the State of Queensland and allows the applicants to proceed with their plans for the land.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicants and the State of Queensland relied on thorough and helpful written submissions during the hearing of the application.BACKGROUND As deposed to in LJB [3]-[5], the Land is a parcel of approximately 14,400 hectares known as ‘Valley Downs’ which is currently used for cattle grazing. On 5 May 2020, the applicants became the registered lessees of the Land (LJB [2], and Annexure ‘LJB-1’). On 20 October 2020, the applicants lodged an application with the Department of Resources for the conversion of the Lease to a freehold interest (LJB at [7] and Annexure ‘LJB-5’). On 13 May 2021, the Department presented the applicants with an Agreement to Offer Conversion of the Lease, subject to certain conditions that are required to be satisfied prior to the issue of a deed of grant in freehold of the Land. These conditions include a requirement for the applicants to provide written advice to the Department as to how they will address native title with respect to the proposed freehold grant either by way of negotiation and registration of an indigenous land agreement, or by way of filing a non-claimant application with this Court resulting in a determination that native title does not exist (LJB at [8]). On 19 May 2021, the applicants executed the Agreement to Offer Conversion of the Lease and returned the executed agreement to the Department (LJB at [9] and Annexure ‘LJB-6’). Section 86G of the NTA provides that:Unopposed applications Federal Court may make order (1)If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66: (a)the application is unopposed; and (b)the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court; the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing. Note:If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). Meaning of unopposed (2)For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant. The principles applicable to the consideration of a non-claimant application under s 61 of the NTA were recently addressed in Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41, where regard was also had to earlier principles established in the Full Court decision of Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320. The principles in Mace have been helpfully summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10]. There is no need to repeat that summary here.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances, I am satisfied that the applicants have discharged their onus of establishing, on the balance of probabilities, that native title does not exist over the Land.CONCLUSION The appropriate order is that native title does not exist over the Land.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.