Collier J
This matter involved a non-claimant application for the determination of native title, made by Mr and Ms Murphy. Native title was negatively determined over an area approximately 35,820 hectares in size in the Barcoo Shire of Queensland. The State of Queensland responded but did not oppose the application.
Background
The Murphys have been the registered lessees over the area, known as Lina Glen Station, since 2004. They sought to convert their leases to freehold title for commercial reasons. In 2018, the Murphy applied for the conversion under the Land Title Act 1994 (Qld), but were informed the tenure would only be granted if native title was extinguished by way of an Indigenous Land Use Agreement (ILUA), or else determined not to exist by the Court. Consequently, in 2018, the applicants filed a non-claimant application under s 61(1) of the Native Title Act 1993 (Cth) (NTA).
Decision
Collier J held that s 86G of the NTA was the applicable section, which allows the court to make a negative determination for native title.
Collier J held that the Murphy applicants had discharged their burden to prove that no native title exists in the claim area. There were no applications, claims or ILUAs over the land except the Mithaka Claim in 2002. This claim subsequently excluded the relevant area by consent in 2015. Evidence was provided from the Queensland South Native Title Services (QSNTS) that other Indigenous persons asserted native title interests over the land. However, given no further details were provided and QSNTS did not participate in the proceedings, the vague assertions were dismissed. His Honour noted the evidence was uncontested, there were no public responses to notification, and the Murphys had never seen Indigenous land use or access, which although not a requirement, was persuasive. Some hesitancy was expressed as the most recent enquiries had been made in March 2019, despite the hearing in 2021. Still, the absence of any active respondent since this period satisfied the making of a determination. Overall, Collier J held the order was appropriate and determined native title did not exist over the relevant land.