Mace v State of Queensland [2019] FCAFC 233 (19 December 2019)

Between Harley William Mace, Andrew Donald Cameron, Nicolette Ann Cameron and Patricia Catherine Cameron (Applicants) and State of Queensland (Respondent)

Judges Jagot, Griffiths and Mortimer JJ

Where Morven, Queensland

This was a non-claimant application under the Native Title Act 1993 (Cth). A non-claimant application is an application where the applicant seeks a negative determination of native title in the Federal Court. 

The full judgment may be accessed at the Austlii link provided.

Background

The applicants were tenants in common for the land. A 19 year lease was initially granted in 1977, but was later extended until 2035.

In 2015, the applicant applied to the Queensland Department of Natural Resources, Mines and Energy (DNMRE) for a conversion of the lease to freehold title. The DNMRE would, subject to conditions, convert the lease into freehold title. One of these conditions required that the applicant address native title rights and interests in accordance with the Native Title Act 1993 (Cth), either through an indigenous land use agreement (ILUA) or through making a non-claimant application.

The applicant filed an affidavit, but the Court relied solely on the parties' agreed statement of facts to decide that native title did not exist in relation to the area.

Significance

Prior to Mace, there was still uncertainty over whether a court should assess the evidence in a non-claimant application more, or less, stringently depending on where the non-claimant application was filed (see Pate v State of Queensland [2019] FCA 25). This was due to the Court's suggestion that judges in New South Wales may have been more lenient when it came to negative determinations which were compelled under New South Wales state law.

Mace confirmed that the court's approach should follow the more stringent application regardless of where the non-claimant application was made. The Court explained that the provisions of the NTA apply nationally and not by reference to the State the non-claimant application is made in. The Court also noted that an absence of responses to a notification of a non-claimant application in newspapers is no longer a reliable indicator of no native title interests existing in the determination area.

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