Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5)

• Jurisdiction: Australia Federal only
• Judgment Date: 23 December 2021
• Neutral Citation: [2021] FCA 1639
• Court: Federal Court
• Date: 23 December 2021

Federal Court of Australia

Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639

File number:	QUD 25 of 2019
Judgment of:	REEVES J
Date of judgment:	23 December 2021
Catchwords:	ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – native title – two partially overlapping applications for native title – whether native title exists in relation to the land and waters of the claim area – separate questions posed in each of the claims answered in the negative – whether the persons who inhabited the claim area at the time of effective sovereignty were members of one or more societies – what was the relevant society or societies – what was the content and nature of the communal or group rights and interests in land and waters that were conferred under the normative body of laws and customs of the relevant pre-sovereignty society or societies upon groups within that society or societies – what was the nature and content of any spiritual beliefs of the relevant pre-sovereignty society or societies insofar as those beliefs related to rights and obligations in relation to the land and waters of the claim area – what kind of rights holding groups held rights and interests in relation to the land and waters of the claim area under the laws of the relevant pre-sovereignty society – what was the ambit of the estates of the rights holding group or groups within the claim area – whether it is necessary to demonstrate the ambit of those estates – what language or languages were associated with the rights holding groups or their estates – what was the content of the rules relating to membership of the rights holding groups – whether use may be made of the findings or evidence in other native title determinations – where an applicant’s lay Aboriginal witness evidence was generally recent in origin, inconsistent and lacking in detail on critical evidence – where lesser weight was to be afforded to the opinions of an applicant’s expert witnesses – where an applicant failed to establish that the ancestors of its members comprised a society at effective sovereignty which acknowledged and observed traditional laws and customs giving rise to rights and interests in the land and waters of the claim area – where an applicant would have failed to establish that its current claim group constituted a normative society that is united in and by a body of traditional laws and customs the acknowledgement and observance of which could give rise to such rights and interests – where an applicant failed to adduce lay Aboriginal evidence which is representative of the claim group or of the relevant group of Aboriginal people such as to establish that, as a group, it continued to acknowledge or observe traditional laws and customs from which rights and interests in the claim area were derived – where an applicant failed to establish that any rights holding group within its society at effective sovereignty held rights and interests in any defined part of the claim area under traditional laws and customs of that society
Legislation:	Aboriginal Cultural Heritage Act 2003 (Qld) Aboriginal Land Act 1991 (Qld) Aboriginal Relics Preservation Act 1967 (Qld) Aboriginals Protection and Restriction of Sale of Opium Act 1897 (Qld) Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) Acts Interpretation Act 1901 (Cth) Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) Evidence Act 1995 (Cth) Native Title Act 1993 (Cth) Torres Strait Islander Land Act 1991 (Qld) Unoccupied Crown Lands Occupation Act 1860 (Qld)
Cases cited:	Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 30 (31 March 2013) Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 52 (7 May 2013) Adani Mining Pty Ltd and Another v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People [2015] NNTTA 16 (08 April 2015) Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643 Anderson on behalf of the Wulli Wulli People v State of Queensland (No 3) [2015] FCA 821 Anikin v Sierra(2004) 79 ALJR 452; [2004] HCA 64 Aplin on behalf of the Waanyi Peoples v State of Queensland[2010] FCA 625 Ashby v Slipper(2014) 219 FCR 322; [2014] FCAFC 15 Ashwin on behalf of the Wutha People v State of Western Australia (No 4)[2019] FCA 308 Australian Executor Trustees (SA) Limited v Kerr[2021] NSWCA 5 Ballantyne v. Mackinnon (1896) 65 L.J.Q.B. 616 Banjima People v Western Australia (No 2)(2013) 305 ALR 1; [2013] FCA 868 Bodney v Bennell(2008) 167 FCR 84; [2008] FCAFC 63 Bowles -v- The State of Western Australia [2011] WASCA 191 Briginshaw v Briginshaw(1938) 60 CLR 336 Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271 Burragubba v Minister for Natural Resources and Mines [2016] QSC 273 Burragubba v Minister for Natural Resources and Mines [2017] QSC 265 Burragubba & Ors v Minister for Natural Resources and Mines [2017] QCA 179 Burragubba v State of Queensland [2016] FCA 984 Burragubba v State of Queensland (2017) 254 FCR 175; [2017] FCAFC 133 CG (Deceased) on behalf of the Badimia People v State of Western Australia (Badimia) [2015] FCA 204 Chetcuti v Minister for Immigration and Border Protection(2019) 270 FCR 335; [2019] FCAFC 112 Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 Coles-Smith v Smith [1965] Qd R 494 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (2015) 325 ALR 213; [2015] FCA 9 Dale v Moses[2007] FCAFC 82 Dale v Western Australia(2011) 191 FCR 521; [2011] FCAFC 46 Daniel v State of Western Australia[2000] FCA 858 Daniel v State of Western Australia[2003] FCA 666 Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) (2014) 317 ALR 432; [2014] FCA 528 De Rose v State of South Australia[2002] FCA 1342 De Rose v State of South Australia(2003) 133 FCR 325; [2003] FCAFC 286 De Rose v South Australia (No 2)(2005) 145 FCR 290; [2005] FCAFC 110 Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2)[2021] FCA 1496 ...