Ruling in lessee’s favour notes lack of Indigenous land use agreements over lot
Australia’s Federal Court has allowed a lessee’s non-claimant application upon finding that no native title covered a lot comprising land and waters in Central West Queensland under s 13(1) of the Native Title Act 1993 (Cth).
In Whip v State Minister for the State of Queensland, [2025] FCA 644, the applicant was the registered lessee of a 7057.8-hectare lot in the Barcaldine local government area. He used the property for cattle grazing.
In December 2022, the applicant asked Queensland’s resources department to convert the lease to freehold. In August 2023, the department offered to perform the conversion for $48,474.91, as long as the applicant could obtain a determination that no native title existed in the property or a registration of an Indigenous land use agreement.
In September 2023, the applicant executed a conversion agreement. In December 2023, he filed a non-claimant application to satisfy the state’s condition. Specifically, he sought a determination that no native title existed in the land under ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) (NTA).
In December 2024, the state minister for the State of Queensland, as the application’s only respondent, expressed no opposition to an order with the applicant’s requested terms.
The Federal Court of Australia ruled that it had the power to issue the negative determination requested by the applicant. The court considered it appropriate to make that determination without a hearing, given that the applicant met his burden to prove no native title covered the land.
First, the court held that the applicant established that no native title existed in connection with the property. The court acknowledged his evidence of searches conducted with the National Native Title Tribunal’s registers and information obtained from the tribunal.
Based on the evidence, the court saw no previously approved determination of native title covering the property and no current application relating to the land.
Next, the court ruled that the applicant’s legal representatives notified Queensland South Native Title Services (QSNTS), as the relevant representative body, through an October 2024 letter. The court found that the QSNTS did not respond, offer any evidence or information, or seek to be part of the proceeding.
The court noted that it could reasonably expect the representative body for the region pertinent to the claim of the non-claimant application to give evidence or information on what it knew or did not know regarding potential native title holders for the claimed area. No other person asserted a native title or asked the court to add it to the proceeding.
The court said the state government and the QSNTS received copies of the non-claimant application in December 2023, as required under ss 66(2) and 66(2A) of the NTA.
Lastly, the court held that the land overlapped historically with two prior native title claimant applications. The court also saw no other current native title claim applications, determinations, or Indigenous land use agreements relating to the subject property.
The court noted that it had previously determined that no native title existed in the portion of the claim area called the overlap area and that a certain population possessed no rights and interests in the area under traditional law and customs that gave them a continuing connection with the land and waters.
The court concluded that the register met the notification requirements under ss 63 and 66 of the NTA, and the notification period had closed.
