Pate v Queensland [2019] FCA 25

Between: Sophie Marie Pate (Applicant) and the State of Queensland (Respondent)

Judge: Reeves J 

Judgment

A non-claimant applicant who is looking for the Court to determine that no native title exists over an area must present evidence that is sufficient to prove that no native title exists in that area. They cannot rely only on failed native title claims in the past and no native title claim being made during the application.

There are also limitations on the Court's power to make negative determinations: they can't be made against the goals set out by the Native Title Act 1993 (Cth) (the NTA), to protect native title and the right to compensation, without the NTA clearly expressing an exception.

Background

Pate held a pastoral lease which she attempted to have converted to a freehold estate. The state government made an offer allowing for the conversion on the condition that the Federal Court determined that either there was no native title regarding the land or native title had been surrendered through an Indigenous Land Use Agreement (ILUA).

Pate filed a non-claimant application to have a determination made that native title did not exist in the area. After the three-month notice period for her application had ended, no relevant native title claim had been filed regarding the area.

There had been three previous attempted native title determinations over the land, one of which was dismissed and the other two discontinued.

Basis of application

Pate had to prove that native title rights did not exist in the land comprising her lease. Pate relied upon two facts:

1. There were no registered native title claims, and one had been dismissed.
   
2. No one had expressed interest in claiming native title in relation to the specified land.

Outcome

The Court refused to make the determination, stating that it could not do so for three reasons.

1. Following Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109), a high degree of caution is required in determining that native title does not exist, especially when the application is unopposed.
2. Also following Munn and based on the circumstances of the case, it would be inconsistent with the goals of the NTA for the Court to use its discretion to make a negative determination. This was due to the Court's view that if the NTA was used in this way it would not only prevent any future native title claims, but also prevent any right to compensation.
3. Pate failed to provide enough evidence to prove that native title did not exist in the specified area. The Court held that a non-claimant applicant must provide sufficient evidence to prove that no native title exists in the area concerned which may include evidence regarding the history of the land, the presence or absence of native title rights in the surrounding area, or evidence from the Native Title Representative Body for the area regarding their view on whether native title rights may exist in the area.
   

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