Lord Penna Land Holdings Pty Ltd v State Minister for the State of Queensland

In the case of Lord Penna Land Holdings Pty Ltd v State Minister for the State of Queensland, the Federal Court was tasked with determining whether native title exists over a specified area of land in Central West Queensland. The applicant, Lord Penna Land Holdings Pty Ltd, applied for a determination under section 61(1) of the Native Title Act 1993 (Cth) that no native title exists over the area in question. The State Minister for the State of Queensland did not oppose the application but argued that the court should consider whether it was appropriate to make the determination sought. The court had to decide whether, even if the applicant had proven the non-existence of native title, it was within the court's discretion to decline making a determination or whether it was appropriate to proceed with the determination.

The court considered the evidence presented by both parties and concluded that Lord Penna had established on the balance of probabilities that no native title exists over the land. Notably, despite notification, no claims were made by anyone asserting native title over the land, and the representative body, Queensland South Native Title Services, did not participate in the application. The court also highlighted that the representative body had been active in the past but chose not to engage in this application. The court found that the absence of any claims or participation from the representative body supported the applicant's assertion that no native title exists over the land.

In making its decision, the court referred to the Full Court's recognition in Mace that the court retains a discretion to decline making a determination even if the applicant has proven on the balance of probabilities that no native title exists. The court considered it appropriate to exercise this discretion in the present case, given the lack of any claims or participation from interested parties. The court concluded that it was appropriate to make the determination sought by Lord Penna, as the applicant had discharged its burden of proving that no native title exists over the land.

Pursuant to section 13(1) of the Native Title Act 1993 (Cth), the court ordered that no native title exists in relation to the land and waters described as Lot 6 on Crown Plan CNA55 (Tenure Reference SH2/3626), also known as “Coreena,” located in Central West Queensland.