Prow v State of Queensland [2021] FCA 1532

Maranoa district, South West Queensland

The claimed parcel area is approximately 40,400 hectares, which is described as Lot 10 on Crown Plan PO65, title reference 17664208 in the State of Queensland. 

The National Native Title Tribunal Extract (QND2021_004) attached, provides a written description of the area covered.

The area is within the jurisdiction of the Murweh Shire Council.

Registered on the National Native Title Register

Between: Toni-Ann Maree Prow & Ors (Applicant) and State of Queensland (Respondents)

Judge: SC Derrington J

Determination

The Federal Court of Australia heard an application under section 13(1)(a) (Approved determinations of native title) and section 61(1) (Native title and compensation applications) of the Native Title Act 1993 (NTA) for a determination that native title does not exist in relation to land of approximately 40,400 hectares located in south west Queensland in the Murweh local government area. 

The Federal Court held that native title does not exist in the entire determination area. 

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

Background

As noted above, the land is a parcel of approximately 40,400 hectares, the entirety of which is owned by the applicants for the current purpose of grazing cattle. 

In August 1997, the applicants became the registered lessee of the land after acquiring the lease for the land from the prior registered lessees. The lease over the land is a term lease, being a rolling term lease for no defined purpose, originally granted in April 1964 for a thirty year term, subsequently extended to March 2047 and transferred a number of terms (per SC Derrington J at [6]).

In June 2018, the applicants applied to the Queensland Department of Natural Resources, Mines and Energy, now the Department of Resources, for the conversion of the lease to a freehold interest. In order to address any matters relating to native title, the applicants filed the Determination Application. 

Searches conducted with, and information provided by, the National Native Title Tribunal established that there are no previous determinations of native title in the land and no pending applications, though the land had been the subject of six historical native title claims. These claims involved two different claim groups, the Bidjara People, and the Budjiti People. 

Details of Judgment

The Court observed at [15] that the onus rests on the applicant to substantiate its claim for a negative determination, with each case being assessed on its own facts, including the nature of the land and tenure involved, the presence or absence of any native title claims (including previous claims), and any evidence adduced by the parties. This discussion affirmed the principles expounded in Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717. 

The determination application was unopposed and therefore the Court was permitted, under section 86G(1) of the NTA to make an order that no native title exists because it was satisfied of the following: 

• Power requirement - the Court has the power to make a determination because it is within the meaning of "determination of native title" under section 13(1)(a) of the NTA, there is no "approved determination of native title" in relation to the land as required under section 13(1)(a) and section 61A(1) of the NTA, the applicant has an interest in the land, and the Federal Court has jurisdiction per section 81 of the NTA to determine applications filed in the Federal Court that relate to native title (SC Derrington J at [13]).
• Appropriateness requirement - The Court held that it is appropriate to make an order that no native title exists in relation to the land because "...there is no previous determination of native title in the [l]and and that there is no current application in relation to the [l]and" (per SC Derrington J at [16]). This was evidenced by the Court's discussion of the previous historical claims to native title in respect of the land involving two different claim groups. In relation to the claims by the Bidjara People, the Court was satisfied that "...there is no evidence of any substance that the Bidjara people maintain an interest of any kind in the [l]and (per SC Derrington J at [25]). With regard to the First Budjiti People claim, the Court held that it was satisfied that there was no evidence that the Budjiti people maintain an interest of any kind in the land (per SC Derrington J at [27]). 

Further, in the context of the appropriateness requirement, the Court held that "several enquiries" were made with the representative body for the area covered by the non-claimant application, being Queensland South Native Title Services Limited, which did not respond to those enquiries and did not seek to be joined to this proceeding on behalf of any potential native title claimants (per SC Derrington J at [17]). 

The Court was was satisfied, on the balance of probabilities, that native title does not exist in relation to the land in question. 

Native title does not exist. 

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