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

In the case of Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5), the Federal Court of Australia considered two overlapping applications for native title over the Clermont-Belyando Area. The legal issues centred on whether native title existed in relation to the land and waters of the claim area, and if so, who held the rights and interests in relation to that land and water. The court was also tasked with determining the relevant society or societies, the content and nature of the communal rights and interests, and the ambit of the estates of the rights-holding groups. The court had to assess the evidence provided, particularly the lay Aboriginal witness evidence, and determine its weight.

The court found that the applicants failed to establish the existence of a society at the time of effective sovereignty that acknowledged and observed traditional laws and customs giving rise to rights and interests in the land and waters of the claim area. The evidence provided was recent in origin, inconsistent, and lacking in detail. The court also found that the applicants failed to demonstrate that their current claim group constituted a normative society united in and by a body of traditional laws and customs that could give rise to such rights and interests. The court concluded that the applicants could not establish that any rights-holding group within their society at effective sovereignty held rights and interests in any defined part of the claim area under traditional laws and customs of that society.

The court further clarified that a claim group, as defined under the Native Title Act 1993, is not a legal entity but a group of Aboriginal persons who hold the common or group rights and interests comprising the particular native title claimed. The decision on whether a particular person or group of persons is accepted as a member rests with the claim group itself, according to its understanding of its traditional laws and customs, particularly those relating to membership. This is not a matter that can be authoritatively determined by anthropologists or lawyers according to the precepts of the Australian legal system.

The court concluded that native title did not exist in relation to any part of the claim area and ordered that the separate questions stated be answered as follows: a) no; b) not applicable.