Weribone on behalf of the Mandandanji People v State of Queensland [2018] FCA 247

South Eastern Queensland

Registered with the National Native Title Tribunal on the Native Title Register.

Between:

Leslie Weribone and others on behalf of the Mandandanji People (Applicant)

and

State of Queensland, Balonne Shire Council, Maranoa Regional Council, Western Downs Regional Council, several energy supply and mining companies and pastoralists (Respondents)

Judge: Rares J

Determination

Native title does not exist in the entirety of the determination area

Full text of the determination is available via the URL link above.

Background

This is the fourth proceeding in which the Mandandanji people have sought a determination of native title in respect of some or all of the claim area. On 12 September 1997, the first application was withdrawn. On 28 October 1997 and 6 June 2001, the second and third applications respectively were dismissed [6].

A contested final hearing was planned to commence on 5 June 2017 [8]. After reviewing the totality of the evidence, the applicant confirmed that they did not wish to proceed to the contested final hearing (due to the claim having limited prospects of success), and sought to make a consent determination that native title does not exist [11]-[15].

On 21 February 2018, the applicant, the State and the other respondents signed an agreement, in accordance with s 87(1) of the Native Title Act 1993 (Cth) (NTA) that provided for the Court to make a determination that no native title rights and interests exist over the claim area [2].

Details of Judgment

The Court considered the applicant's and the State's submissions in support of a consent negative determination, and was satisfied that there was a proper basis for the Court to make a negative determination under s 87 of the NTA [17].

The Court was also satisfied that the applicant and the State had given the decision substantive consideration and had received expert advice from senior counsel, solicitors, and anthropologists [21]. The decision to go from a contested hearing to a consent determination was based on sound reasoning and evidence, mainly being that native title rights and interests could only be claimed over a small portion of the claim area, and that the chance of being successful in this claim was low [21].

Justice Rares commented on the fact that the negative determination will be disappointing for the claim group, particularly as the evidence showing disruption of Indigenous people observing traditional laws and customs on the land was a consequence of the interactions with the early European settlers and the colonial government [24]. Rares J was therefore satisfied that it is unlikely any other claim group exists that could make a positive determination for the limited portions of land that have not experienced acts of extinguishment of native title due to this disruption [25]-[26].

Native title does not exist

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