A recent decision of the Federal Court has questioned the use of non-claimant applications to secure tenure over land.
On 18 January 2019, Justice Reeves refused to make an order that native title does not exist over pastoral land situated near Carmila in North Queensland (Pate v State of Queensland  FCA25). The pastoral holder wished to upgrade her tenure to freehold and commenced a non-claimant application seeking an order that native title did not exist over her property. Her application was not contested and no native title claim was filed in response. She argued that the court could infer therefore that no native title existed in her land.
His Honour held that even though the application was not opposed, the applicant must prove, on the balance of probabilities that native title did not exist. To make an order that native title did not exist, without evidence to that effect, would be contrary, in His Honour’s view, to the objectives of the Native Title Act 1993 (NTA). It would result in not only stopping a future native title claim being made but would avoid the payment of compensation for lost native title. His Honour noted that s 24FA of the NTA would allow for the grant freehold over the pastoral holding as the non-claimant application was not opposed. If the State granted freehold in reliance on s 24FA Protection, compensation would still be preserved and payable by the State.
His Honour referred to numerous previous successful non-claimant applications made in the Federal Court where orders were made that that native title did not exist. Most of these were commenced by Aboriginal Land Councils in NSW as land rights legislation required that a determination be made to enable Land Councils to deal with vested Crown land. Many of these decisions had been made on the basis that the non-claimant application was unopposed. His Honour was of the view however that since the Full Federal Court Decision in Worimi Local Aboriginal Land Council v Attorney-General of NSW  FCA1329 that reliance upon a non-claimant application being unopposed would not be sufficient to make an order that native title did not exist. Evidence that it does not exist would also need to be adduced.
Whether the decision will be appealed or how it will be applied in the future is unclear. As it stands it impacts upon the practice of filing non-claimant applications to validate future acts, such as the grant of freehold over Crown land. Whilst s 24 FA Protection can technically be relied upon to grant tenure, such as to upgrade a pastoral lease to freehold, in Queensland at least, the State’s current policy is to not rely on s 24FA Protection to deal with Crown land. The State requires that a landholder seeking an interest in Crown land obtain an order that native title does not exist or to negotiate an indigenous land use agreement.
Jenny Humphris & Alex Buck
Jenny Humphris, Partner
T: +61 7 3135 0690
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Published by Jenny Humphris, Alex Buck