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

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