Prow v State of Queensland [2021] FCA 1532

Prow v State of Queensland [2021] FCA 1532

The Court was satisfied that the negative determination sought was within power because the application was properly brought under ss 13(1)(a) and 61(1) of the Native Title Act 1993 (Cth), notice had been given under s 66, the notification period had ended, no Form 5 party applications were filed, there was no approved determination over the Land, and the State did not oppose the order. It was appropriate to make the order because the evidence showed no current native title claim over the Land, no substantive assertion of native title by the Bidjara People or Budjiti People, and prior claims and determinations did not weigh against the order. The applicants discharged their onus on the...

Jurisdiction
Australia
Judgment Date
08 December 2021
Procedural Posture
Non Claimant Application for Determination of Native Title Under S 61(1) of the Native Title Act 1993 (cth) / Unopposed Application Under S 86 G of the Native Title Act 1993 (cth) for a Determination That No Native Title Exists
Outcome
Application granted; negative determination of native title made.
Legal Topics
['non Claimant Application' 'negative Determination of Native Title' 'unopposed Applications Under S 86 G of the Native Title Act 1993 (cth)' 'power and Appropriateness of Making Native Title Determination']
['native Title'] ['non Claimant Application' 'negative Determination of Native Title' 'unopposed Applications Under S 86 G of the Native Title Act 1993 (cth)' 'power and Appropriateness of Making Native Title Determination']

Case Brief

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Procedural Posture

Non Claimant Application for Determination of Native Title Under S 61(1) of the Native Title Act 1993 (cth) / Unopposed Application Under S 86 G of the Native Title Act 1993 (cth) for a Determination That No Native Title Exists

Legal Issues

  1. 1 ['Whether the order sought, that no native title exists over Lot 10 on Crown Plan PO65, was within the power of the Federal Court.' 'Whether it was appropriate to make the negative determination of native title under s 86G of the Native Title Act 1993 (Cth).' 'Whether the applicants established on the balance of probabilities that native title does not exist over the Land.']

Ratio Decidendi

The Court was satisfied that the negative determination sought was within power because the application was properly brought under ss 13(1)(a) and 61(1) of the Native Title Act 1993 (Cth), notice had been given under s 66, the notification period had ended, no Form 5 party applications were filed, there was no approved determination over the Land, and the State did not oppose the order. It was appropriate to make the order because the evidence showed no current native title claim over the Land, no substantive assertion of native title by the Bidjara People or Budjiti People, and prior claims and determinations did not weigh against the order. The applicants discharged their onus on the...

Court Disposition

Application granted; negative determination of native title made.

Orders

  • ['There is no native title in relation to the land and waters that are described as Lot 10 on Crown Plan PO65, title reference 17664208 in the State of Queensland.']