Kennedy v Queensland

The case of Kennedy v Queensland involves the applicant, Kennedy, seeking a declaration that native title does not exist in relation to Castle Hill Holding, a property in Queensland. Kennedy filed an amended motion under section 86G of the Native Title Act, which the State of Queensland did not oppose. The Gurang Land Council, initially involved, withdrew from the proceedings, leaving Kennedy and the State of Queensland as the key parties. The Federal Court of Australia was tasked with deciding the legal issues presented.

The primary legal issue before the court was whether native title existed in relation to Castle Hill Holding, considering the extensive historical use and occupation of the land by Kennedy and his predecessors. Kennedy argued that the continuous pastoral use and occupation of the land by non-Indigenous people since the mid-1880s negated any potential native title rights. The court had to weigh the historical evidence of land use and occupation against the statutory provisions of the Native Title Act, which recognise native title rights subject to certain extinguishments.

The court considered the evidence provided by Kennedy, which included detailed affidavits about the tenure history of Castle Hill Holding and the continuous pastoral use of the land since the mid-1880s. Kennedy's evidence was uncontradicted and detailed the substantial improvements on the property, the continuous occupation by non-Indigenous people, and the absence of any public or private use by Indigenous people since 1952. The court concluded that the evidence demonstrated that the land had been under continuous use and occupation by non-Indigenous people, effectively extinguishing any native title rights. The court found that the extensive historical use and occupation of the land by Kennedy and his predecessors sufficiently met the criteria for extinguishing native title under the Native Title Act.

The Federal Court of Australia made an order declaring that native title does not exist in relation to all that land known as Castle Hill Holding. The court found that the continuous pastoral use and occupation of the land by non-Indigenous people since the mid-1880s constituted a sufficient basis for extinguishing any native title rights. This decision was based on the extensive historical evidence provided by Kennedy, which the court deemed sufficient to extinguish native title rights under the Native Title Act.