On 21 March 2018 the applicants, Raymond and Pamela Murphy, submitted a non-claimant application for a court determination that native title does not exist in relation to two leasehold areas under s 61(1) of the Native Title Act 1993 (the NTA).
The applicants were the holders of both leaseholds and wished to apply to the Department of Natural Resources Mines and Energy pursuant to s 166(1)(b) of the Land Title Act 1994 (Qld) to convert their leaseholds into freehold interests. The Department of Natural Resources Mines and Energy advised the applicants that they must address the issue of National Native Title, which they aimed to address through this application .
The determination area had previously been subject to a native title claim made on 24 December 2002 by the Mithaka People. That claim was amended on 1 October 2015 to exclude the determination area in Gorringe on behalf of the Mithaka People v State of Queensland on 27 October 2015 .
Details of the Judgment
The parties accepted that there were no responses to the public notifications and notably Queensland South Native Title Service (QSNTS), the representative body for the determination area, did not join the proceedings .
The power of the court to make orders for a negative determination of native title, or the appropriateness of those orders, was not in contention. Rather, Collier J considered whether the applicants had discharged their burden of proof to show that on the balance of probabilities no native title existed in the claim area .
The leading authority here was the Full Court's decision in Mace v State of Queensland  FCAFC 233 . Justice Collier adopted Jagot J's summary of Mace's principles in Wagonga Aboriginal Land Council v Attorney General of New South Wales  FCA 1113 as follows -.
Whether the claim is unopposed or not, the focus remains on whether the burden of proof has been discharged that no native title exists in the claim area. The court is to assess the applicant's case on the balance of probabilities, considering both direct and indirect evidence available in contradiction to it. Each case 'must be assessed on its own particular facts', such as the nature of the land and tenure involved, presence or absence of previous or present native title claims.
The NTA is designed to recognise and protect the interests of all persons with proper interests in an area. The court should consider the gravity of the negative determination's outcome and its permanency on native title.
The principal evidence likely to impede a negative determination is evidence of an assertion of native title, not evidence of a potential for the assertion of native title, and a representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence.
However, even if the burden of proof has been discharged, in rare cases the court can exercise discretion to not make a negative determination.
An unopposed non-claimant application should be decided consistently with these propositions. Her Honours summary of Mace is available in full at .
Have the applicants satisfied the burden of proof?
The Court gave no weight to 'bare assertions' made by QSNTS to the applicants that there were possible native title interests in the determination area because of insufficient evidentiary support .
No assertion of claim was brought by the Mithaka People and there was no evidence that they maintained an interest in the land .
The applicant's evidence that they have not seen any evidence of a physical connection to the land by Aboriginal people was given some weight, but was not particularly persuasive because the applicants were only recently associated with the land and lacked cultural expertise .
Procedural requirements met
The Court had the power to give the orders requested as the application was filed pursuant to ss 13(1) and 61(1) of the NTA. The applicants notified the National Native Title Tribunal in accordance with s 66(3) . When considered alongside the unopposed nature of the application, the Court had the power to make a native title determination as sought .
Justice Collier considered the lack of active respondents, the lack of active engagement by QSNTS, and the absence of any substantive assertion of native title and found that native title did not exist in relation to the determination area -.