Native title year in review 2024-2025

What you need to know

• The Full Federal Court has upheld a negative determination made in a contested non-claimant application and confirmed the principles for determining these applications (North Queensland Land Council v Harris [2025] FCAFC 70).
• Another Queensland non-claimant application was also successful, despite evidence of an overlapping registered ILUA (O'Shea v State Minister for the State of Queensland [2025] FCA 52).
• All non-claimant applications heard over the last 12 months have resulted in determinations that native title does not exist, as applicants proved the absence of native title.

What you need to do

• Remember that even if a non-claimant application is uncontested, applicants must still prove, on the balance of probabilities, that native title does not exist.
• Monitor the outcome of the Redland City Council non-claimant applications, which may provide detailed judicial consideration of the impact of a range of Queensland tenures and Council public works on native title.

Significant numbers of non-claimant applications continue to be filed each year

More than 30 non-claimant applications were filed in 2024-2025 by individuals or entities seeking a negative determination of native title. The appetite to bring non-claimant proceedings is generally driven by:

• the need to satisfy State Government regulators about the absence of native title in order to obtain an upgrade of tenure (particularly in Queensland); or
• the NSW Aboriginal Land Rights Act 1983 provision that prevents the sale of Aboriginal land unless it is subject to a determination of native title.

We previously wrote about the trend of increasing non-claimant applications in Queensland due to the State's requirement for a negative determination in our Native Title Year in Review 2023-2024 article, "Non-claimant applications: A cautionary tale of tenure".

Of the 13 non-claimant applications determined in the last 12 months, two determinations warrant special mention: North Queensland Land Council v Harris [2025] FCAFC 70 and O'Shea v State Minister for the State of Queensland [2025] FCA 52.

Full Federal Court rejects Land Council's appeal and upholds negative determination in Harris

Mr Harris brought a non-claimant application over a very large area of land located in the Gulf Country in far northwestern Queensland which formed part of Strathmore Station, over which Mr Harris is the lessee. The North Queensland Land Council Native Title Representative Body Aboriginal Corporation and the State of Queensland opposed the application. The primary judge determined that native title does not exist in respect of non-claimant application area (Harris v State Minister for the State of Queensland [2024] FCA 1059). The Land Council appealed to the Full Court and a decision was handed down in May 2025 (North Queensland Land Council v Harris [2025] FCAFC 70).

Somewhat unusually for a non-claimant application, the Court heard from lay and expert witnesses for both Mr Harris and the Land Council over the course of two weeks. It was common ground that native title had existed at the time of European settlement. There was a dispute as to the identity of those Aboriginal people who held rights and interests under the laws and customs of the society that was in existence at that time and also as to the content of those laws and customs. There were also issues as to whether, since then, there had continued to be acknowledgment and observance of laws and customs by Aboriginal people with connection to the land.

Evidence was received from Mr Harris as to his own observations and experience over a period of 18 years concerning access by Aboriginal people to the land. There was also evidence as to the history of native title applications and determinations in respect of the land and surrounding land as well as what had occurred in the course of the conduct of the proceedings. There was lay evidence from four Aboriginal people as to their alleged connection to the land. Both parties also called expert witnesses.

The primary judge held that the evidence from lay and expert witnesses adduced by the Land Council as to the existence of native title did not cast sufficient doubt on Mr Harris’ assertion of an absence of native title. After weighing the evidence of both parties, the Full Court found for Mr Harris and made a determination that native title did not exist. The Full Court dismissed the Land Council's appeal and upheld the decision of the primary judge.

The Full Court confirmed the principles laid down by the Full Court in Mace v State of Queensland (2019) 274 FCR 41 (summarised above). It confirmed that the party seeking a determination that native title does not exist must adduce evidence that discharges the onus and such an application can be successfully opposed on the basis that the evidence adduced is insufficient (even where no affirmative evidence is adduced to support the existence of an objectively arguable claim of native title).

The Full Court held that the burden to be discharged is the demonstration that there are no traditional rights and interests in relation to the land and waters of the relevant area that find their source in a normative system of laws acknowledged and customs observed by a society of people that existed before the common law arrived and has continued since then. Referring to the recent High Court decision in Stuart v South Australia [2025] HCA 12, it said (at [18]):

Significantly, the traditional laws and customs of such a society may sustain connection to land or waters without members of the society being possessed of the land or waters in ways familiar to common lawyers. As the authorities demonstrate, the connection to land and waters under various traditional normative systems observed by Aboriginal and Torres Strait Islander peoples is spiritual and depends upon ancestral and traditional links to a place. They may not require regular or continued physical presence upon the land in order for the connection to be maintained. Rather, what is essential is the continuation of the societal normative system which confers the native title rights and interests in relation to the land and waters. There must be a practice of acknowledgment and observance of traditional laws and customs amongst a group of people that is the source of the requisite connection to the particular land and waters.

The Full Court said that considerable care must be exercised in reaching conclusions as to whether it has been demonstrated by an applicant that native title does not exist in an area based upon the extent to which there has been observed presence of Aboriginal people on the land in issue. However, in considering whether Mr Harris had discharged his onus it was relevant to bear in mind that the Land Council had responsibilities under the scheme established by the Native Title Act to advance any claims to native title where requested to do so and a very considerable amount of time had been afforded for that to occur. The history of determinations established that over many years much had been done to advance native title claims in and around the land but, despite that, no applications had been maintained in respect of the land.

The Full Court rejected the Land Council's contention that, by reason of the parties' acceptance that there had been an Aboriginal society that held native title at effective sovereignty, it was necessary for Mr Harris to identify the apical ancestors with traditional connections to the land at effective sovereignty and then establish that there were no descendants of those apical ancestors or that those descendants who remained had lost native title by reason of a failure to continuously observe law and custom.

The Full Court said that it is still forensically possible to demonstrate that there are no present holders of native title without knowing what the past position may have been.

First successful non-claimant application over area of a registered ILUA

In O'Shea v State Minister for the State of Queensland [2025] FCA 52, the applicants sought a determination that native title does not exist over particular lands and waters associated with their pastoral interests. The application had a storied history. It commenced in 2017, but was amended in 2023 to remove an area of overlap with the Wakaman People #4 (QUD728/2017) proceeding. The amended non-claimant application was unopposed and was ultimately successful.

This is the first non-claimant application of which we are aware that overlapped with the area of a registered Indigenous Land Use Agreement (ILUA). The Bar Barrum Small Mining Indigenous Land Use Agreement (QI2005/001) was registered in 2007 and was entered into between the State, Bar Barrum Aboriginal Corporation, North Queensland Land Council, North Queensland Miners Association Incorporated and the applicants for the Bar Barrum People #2, #3, #4, #5, #6 and #7 native title claims. The purpose of the ILUA was to provide the consent of the Bar Barrum People to a range of future acts associated with prospecting and other "small mining" activities in the ILUA area. The ILUA had a prescribed end date in 2011.

The Bar Barrum claims were determined in 2016-2017, but the determination areas were all east of the non-claimant application area. The Bar Barrum #4 Determination referred to a proposed Bar Barrum/O'Shea ILUA over the O'Shea's pastoral lease that was authorised by the Bar Barrum People, but it was not registered, and the pastoral lease area was outside of the Bar Barrum #4 claim area.

The Bar Barrum people did not respond to the non-claimant application when it was notified in 2017 or to correspondence from the North Queensland Land Council about the application in 2023. The Bar Barrum People took no steps to assert or pursue native title rights and interests over the amended non-claimant application area since it was filed in 2017.

The Court said that:

• No material weight should be given to the Small Mining ILUA (and by implication the proposed Bar Barrum/O’Shea ILUA). This was because, although they suggested that historically the Bar Barrum People asserted native title over the non-claimant application area, the Bar Barrum People have taken no steps to assert or pursue native title rights and interests over the area since the non-claimant application was filed in 2017. The Court also noted that the North Queensland Land Council did not participate in the proceedings or seek to be a party.
• The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title that is objectively arguable, not evidence of the potential for the assertion of native title. To this extent, the Court was not satisfied that the existence of the expired ILUA or the proposed Bar Barrum/O’Shea ILUA (which was never registered), constituted an assertion of native title that is objectively arguable.
• There was no evidence provided to the Court of any physical connection to the claim area by Indigenous people, nor evidence adduced of the existence of any sites of significance to Indigenous people in the claim area.

The applicants adduced detailed evidence in support of their contention that native title does not exist on the basis that it is not claimed by or cannot be proved by any person or group who may hold native title rights and interests. The Court found that the applicants had discharged their onus of proof, and it was appropriate in the circumstances to exercise its discretion and make a negative determination.

Key insights: Non-claimant applications to monitor in 2025-2026

The Redland City Council in South East Queensland filed two non-claimant applications relating to various lands and waters within its local government area to obtain certainty in respect of extinguishment of native title in the context of the 530 km² Quandamooka Coast Claim (QUD92/2022 and QUD92/2022). According to the Council, these relate to 2500 parcels of land within the claim area where the Council believes native title has been extinguished by grants of tenure or public works. The Quandamooka Coast Claim (QUD126/2017) and the two non-claimant applications have been set down for a four week hearing commencing in September 2025. Redland City Council filed another non-claimant application in June 2025 (QUD410/2025) that has not yet been listed for hearing with the other claims.

A decision in these proceedings may include detailed consideration of the impact of a range of Queensland tenures and Council public works on native title. It may also provide commentary on the treatment of potentially extinguishing tenures during the negotiation of consent determinations over large claim areas where extinguishment assessment would be expensive and time consuming.

Other Authors: Alex Buck, Senior Associate and Lydia O'Neill, Lawyer.

Want to know more?

• Non-claimant applications: A cautionary tale of tenure, 6 June 2024