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

Category: Case Law
Binomial Name: Federal Court of Australia
Date: 19 December 2019
Sub Category:Case Law | Litigated Determination
Place:
Legal Reference: Federal Court File No. QUD31/2018; Tribunal File No. QND2019/001
Subject Matter:Native Title
URL: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2019/233.html
Summary Information:

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.

Detailed Information:

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

Background

The applicantswere tenants in common for the land. A 19 year lease was initially granted in 1977, butwas 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-claimantapplication.

The applicantfiled 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 (seePate 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.


Related Entries

Organisation
  • State of Queensland
  • Legislation
  • Native Title Act 1993 (Cth)
  • People
  • Harley William Mace - Appellant
  • Case Law
  • Pate v Queensland [2019] FCA 25
  • Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236
  • Murphy v State of Queensland [2021] FCA 81

  • Glossary

    Native Title Applications/Claims (Australia) | Litigated Determination (Native Title Act 1993 (Cth)) (Australia)