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Federal Court rules no native title exists on two leasehold properties

01 June 2021

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#Native Title & Indigenous Cultural Heritage

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Federal Court rules no native title exists on two leasehold properties

Two recent Federal Court decisions have found that native title does not exist over a pastoral lease and special lease in Queensland, paving the way for conversion to freehold. These cases follow a number of unsuccessful applications for negative determinations.

Case 1 – Murphy v State of Queensland [2021] FCA 81

This case commenced with the filing of an application in 2018 by lessees, Mr and Mrs Murphy (the Murphys). The Murphys sought an order that native title does not exist over their Lina Glen Station pastoral holding. They had applied to freehold their property. The State of Queensland required that they first address native title – either by an indigenous land use agreement to surrender native title, or by obtaining a court order that native title does not exist.  

When they made their application, there was no native title claim or determination over the pastoral holding. A previous claim made by the Mithaka People was withdrawn in 2015. 

As is required under the Native Title Act 1993 (Cth), the Murphys’ non-claimant application was publicly notified. No one joined to the claim or asserted any interest.

Justice Collier who heard the case was persuaded that the Murphys had proved that native title did not exist over their pastoral holding after hearing the evidence given by witnesses and having regard to relevant facts. In particular:

  • the Murphys’ evidence that they had never observed the land being used by Traditional Owners, no request to access the property had ever been received from Traditional Owners, and there was no known or registered Aboriginal cultural heritage on the land
  • while the representative body for the area, Queensland South Native Title Services, had been made aware of the proceedings, it did not elect to actively participate in the proceedings
  • no respondent, Indigenous or otherwise and apart from the State, sought to be a party to the proceedings 
  • the State did not oppose the application
  • there was no argued assertion of native title over the property. The Mithaka People had decided in 2015 not to pursue their native title claim over the property.

In deciding the application, Justice Collier applied the principles articulated in an earlier leading Full Court decision on non-claimant applications of Mace [1]. These principles include:

  • that each case must be assessed on its own particular facts. This includes the nature of the land and tenure, the presence or absence of current or historical native title claims and any other evidence adduced
  • the non-claimant applicant has the  burden of proving that no native title exists in the claim area. No ‘hard and fast’ rules can be laid down about what evidence might be required to meet the required standard of proof
  • all questions are to be assessed on the usual standard of proof in civil litigation – i.e. on the balance of probabilities
  • a non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at European settlement (sovereignty) or any general inquiry into how those rights or interests may or may not have continued
  • the principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land, but not merely evidence of the ‘potential’ for an assertion of native title
  • the Court has wide discretion in deciding whether or not to make a negative determination.  

The full decision can be found here.

Case 2 – WG & DK Ryan Pty Ltd (Trustee) v State of Queensland [2021] FCA 499 

This case, decided on 13 May 2021, involved the filing of an application by WG & DK Ryan Pty Ltd (Ryans) seeking an order that native title does not exist over their special lease for grain storage purposes.

Like the Murphys, the Ryans wanted to convert their lease to freehold. In this instance, there had been three historical native title claims over the area. These had been discontinued or dismissed by the time the application was made. Other than the State of Queensland, there was no other respondent party to the proceeding.

After considering the background to each historical claim, His Honour Justice Derrington concluded that there was no evidence that any group maintained an interest in the land. His Honour made an order that native title does not exist in the lease area.

The full decision can be found here.


The decisions reinforce the option of a non-claimant application in circumstances where there is no existing registered native title claim or determination over the land.

While it is not sufficient to rely simply on the absence of native title claims to prove that native title does not exist, the history of the disposal of prior claims can be a relevant factor together with the other factual circumstances of the case in deciding that native title does not exist.

[1] Mace v State of Queensland [2019] FCAFC 233

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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