Registration test decision (Edited)
Application name: Bidjara People
Name of applicant: Brendan Wyman, Patricia Fraser, Helen Coulahan, Sheryl Lawton, Keelen Mailman, Robert Raymond Robinson, Floyd Robinson, Randall Johnson, Robert Ernest Mailman
State/territory/region: Central SouthernQueensland
NNTT file no.: QC08/5
Federal Court of Australia file no.: QUD216/08
Date application made: 23 July 2008
Name of delegate: Lisa Jowett
I have considered this claim for registration against each of the conditions contained in ss. 190B and 190C of the Native Title Act 1993 (Cwlth). For the reasons attached, I am satisfied that each of the conditions contained in ss. 190B and C are met. I accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth). For the purposes of s.190D(3), my opinion is that the claim satisfies all of the conditions in s. 190B.
Date of decision: 12 September 2008
__(signed)______
Lisa Jowett Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cwlth)
Reasons for decision
Table of contents
Introduction ...... 5 Delegation of the Registrar’s powers ...... 5 The test ...... 5 Application overview ...... 5 Information considered when making the decision ...... 6 Procedural fairness steps ...... 6 Procedural and other conditions: s. 190C ...... 7 Subsection 190C(2) Information etc. required by ss. 61 and 62 ...... 7 Delegate’s comment ...... 7 Native title claim group: s. 61(1) ...... 7 Result ...... 7 Reasons ...... 7 Name and address for service: s. 61(3) ...... 8 Result ...... 8 Reasons ...... 8 Native title claim group named/described: s. 61(4) ...... 8 Result ...... 8 Reasons ...... 8 Application in prescribed form: s. 61(5) ...... 8 Result ...... 9 Reasons ...... 9 Affidavits in prescribed form: s. 62(1)(a) ...... 9 Result ...... 9 Reasons ...... 9 Application contains details required by s. 62(2): s. 62(1)(b) ...... 9 Delegate’s comment ...... 9 Result ...... 10 Information about the boundaries of the area: s.62(2)(a) ...... 10 Result ...... 10 Reasons ...... 10 Map of external boundaries of the area: s. 62(2)(b) ...... 10 Result ...... 10 Reasons ...... 10 Searches: s. 62(2)(c) ...... 10 Result ...... 10 Reasons ...... 10
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Description of native title rights and interests: s. 62(2)(d)...... 11 Result ...... 11 Reasons ...... 11 Description of factual basis: s. 62(2)(e) ...... 11 Result ...... 11 Reasons ...... 11 Activities: s. 62(2)(f) ...... 11 Result ...... 11 Reasons ...... 12 Other applications: s. 62(2)(g) ...... 12 Result ...... 12 Reasons ...... 12 Section 24MD(6B)(c) notices: s. 62(2)(ga) ...... 12 Result ...... 12 Reasons ...... 12 Section 29 notices: s. 62(2)(h) ...... 12 Result ...... 12 Reasons ...... 13 Combined result for s. 62(2) ...... 13 Combined result for s. 190C(2) ...... 13 Subsection 190C(3) No common claimants in previous overlapping applications ...... 13 Result ...... 13 Reasons ...... 13 Subsection 190C(4) Authorisation/certification ...... 15 Result ...... 15 Reasons ...... 15 Merit conditions: s. 190B ...... 18 Subsection 190B(2) Identification of area subject to native title ...... 18 Information regarding external and internal boundaries: s. 62(2)(a) ...... 18 Map of external boundaries: s. 62(2)(b) ...... 18 Result ...... 18 Reasons ...... 18 Subsection 190B(3) Identification of the native title claim group ...... 19 Result ...... 20 Reasons ...... 20 Subsection 190B(4) Native title rights and interests identifiable ...... 21 Result ...... 21 Reasons ...... 21 Subsection 190B(5) Factual basis for claimed native title ...... 22 Delegate’s comments ...... 22 Result re s. 190B(5)(a) ...... 25 Reasons re s. 190B(5)(a) ...... 25 Result re s. 190B(5)(b) ...... 27 Reasons re s. 190B(5)(b)...... 27
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Result re s. 190B(5)(c) ...... 30 Reasons re s. 190B(5)(c) ...... 30 Combined result for s. 190B(5) ...... 32 Subsection 190B(6) Prima facie case ...... 32 Result ...... 32 Reasons ...... 32 Subsection 190B(7) Traditional physical connection ...... 39 Result ...... 39 Reasons ...... 39 Subsection 190B(8) No failure to comply with s. 61A ...... 39 Delegate’s comments ...... 40 No approved determination of native title: s. 61A(1) ...... 40 Result ...... 40 Reasons ...... 40 No previous exclusive possession acts (PEPAs): ss. 61A(2) and (4) ...... 40 Result ...... 40 Reasons ...... 40 No exclusive native title claimed where previous non‐exclusive possession acts (PNEPAs): ss. 61A(3) and (4) ...... 41 Result ...... 41 Reasons ...... 41 Combined result for s. 190B(8) ...... 41 Subsection 190B(9) No extinguishment etc. of claimed native title ...... 41 Delegate’s comments ...... 41 Result re s. 190B(9)(a) ...... 42 Reasons re s. 190B(9)(a) ...... 42 Result re s. 190B(9)(b) ...... 42 Reasons re s. 190B(9)(b)...... 42 Result re s. 190B(9)(c) ...... 42 Reasons re s. 190B(9)(c) ...... 42 Combined result for s. 190B(9) ...... 42 Attachment B Documents and information considered ...... 43
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Introduction This document sets out my reasons for the decision to accept the Bidjara People claimant application for registration. Section 190A of the Native Title Act 1993 (Cwlth) requires the Native Title Registrar to apply a ‘test for registration’ to all claimant applications given to him under ss. 63 or 64(4) by the Registrar of the Federal Court of Australia (the Court), but with the exception of amended applications that satisfy ss. 190A(1A) or 190A(6A). Note: All references in these reasons to legislative sections refer to the Native Title Act 1993 (Cwlth) which I shall call ‘the Act’, as in force on 1 September 2007, unless otherwise specified. Please refer to the Act for the exact wording of each condition.
Delegation of the Registrar’s powers I have made this registration test decision as a delegate of the Native Title Registrar (the Registrar). The Registrar delegated his powers regarding the registration test and the maintenance of the Register of Native Title Claims (the Register) under ss. 190, 190A, 190B, 190C and 190D of the Act to certain members of staff of the National Native Title Tribunal, including myself, on 27 September 2007. This delegation is in accordance with s. 99 of the Act. The delegation remains in effect at the date of this decision.
The test In order for a claimant application to be placed on the Register of Native Title Claims, s. 190A(6) requires that I must be satisfied that all the conditions set out in ss. 190B and 190C of the Act are met. Section 190B sets out conditions that test particular merits of the claim for native title. Section 190C sets out conditions about ‘procedural and other matters’. Included amongst the procedural conditions is a requirement that the application must contain certain specified information and documents. In my reasons below I consider the s. 190C requirements first, in order to assess whether the application contains the information and documents required by s. 190C before turning to questions regarding the merit of that material for the purposes of s. 190B. A summary of the result for each condition is provided at Attachment A.
Application overview The Bidjara People application was filed as a new application in the Court on 23 July 2008. At the time of filing it was overlapped by four applications:
• QC97/49—Bidjara 3—QUD156/98, registered 21 September 2000
• QC97/62—Bidjara 4—QUD169/98, registered 8 September 1999
• QC06/5—Karingbal 2—QUD23/06, registered 24 March 2006
• QC99/6—Kangoulu People 2—QUD6007/99, registered 6 April 1999
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The claim is located in central southern Queensland, and has been filed to replace the Bidjara 3 and 4 claims. The Court granted leave on 31 July 2008 to the applicant in both claims to discontinue their applications on or before 3 November 2008. On 5 September 2008 the applicant in both matters filed notices of discontinuance in the Court. Queensland South Native Title Services(QSNTS) is the regional representative body and the applicant’s legal representative. Prior to and since the application was filed, several s. 29 notices have been issued in relation to the land and waters within the external boundary of the claim. One has a four‐month closing date of 12 September 2008, others have closing dates beyond September. This means that the Registrar must use best endeavours to apply the registration test to the Bidjara People application by 12 September 2008.
Information considered when making the decision Subsection 190A(3) directs me to have regard to certain information when testing an application for registration; there is certain information that I must have regard to, but I may have regard to other information, as I consider appropriate. I am also guided by the case law (arising from judgments in the courts) relevant to the application of the registration test. Among issues covered by such case law is the issue that some conditions of the test do not allow me to consider anything other than what is contained in the application while other conditions allow me to consider wider material. Attachment B of these reasons lists all of the information and documents that I have considered in reaching my decision.
Procedural fairness steps As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness, which seek to ensure that decisions are made in a fair, just and unbiased way. Procedural fairness requires that a person who may be adversely affected by a decision be given the opportunity to put their views to the decision‐maker before that decision is made. They should also be given the opportunity to comment on any material adverse to their interests that is before the decision‐maker. As no adverse material has been submitted in relation to this application, neither I, nor other officers of the Tribunal, have been required to undertake any steps in relation to procedural fairness obligations. I note, however, that a letter from QSNTS, upon which I relied for my consideration of the requirements at s. 190C(3), was provided to the State of Queensland for comment on 9 September 2008. On 12 September 2008, the State confirmed with the Tribunal’s case manager that it would not be providing any comment about the information in QSNTS’s letter.
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Procedural and other conditions: s. 190C Subsection 190C(2) Information etc. required by ss. 61 and 62 The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.
Delegate’s comment I address each of the requirements under ss. 61 and 62 in turn and I come to a combined result for s. 190C(2) at page 13 below. Section 190C(2) requires the Registrar to be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by ss. 61 and 62.. If the application meets all these requirements, the condition in s. 190C(2) is met. I note that in the case of Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] Mansfield J stated that ‘section 190C(2) is confined to ensuring the application, and accompanying affidavits or other materials, contains what is required by ss 61 and 62’. His Honour also said at [39] in relation to the requirements of s. 190C(2): ‘...I hold the view that, for the purposes of the requirements of s 190C(2), the Registrar may not go beyond the information in the application itself.’ I am of the view that Doepel is authority for the proposition that when considering the application against the requirements in s. 190C(2), I am not (except in the limited instance which I explore below in my reasons under s. 61(1)) to undertake any qualitative or merit assessment of the prescribed information or documents, except in the sense of ensuring that what is found in or with the application are the details, information or documents prescribed by ss. 61 and 62.
Native title claim group: s. 61(1) The application must be made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.
Result The application meets the requirement under s. 61(1).
Reasons Under this section, I must consider whether the application sets out the native title claim group in the terms required by s. 61(1). If the description of the native title claim group in the application indicates that not all persons in the native title claim group have been included, or that it is in fact
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a subgroup of the native title claim group, then the relevant requirement of s. 190C(2) would not be met and I should not accept the claim for registration—Doepel at [36]. In forming a view on this, I am not required to go beyond the material contained in the application and in particular I am not required to undertake some form of merit assessment of the material to determine whether I am satisfied that the native title claim group as described is in reality the correct native title claim group—Doepel at [37]. The description of the persons in the native title claim group is set out in Schedule A of the application (set out in full below under s. 190B(3)) and, in summary, describes the Bidjara People as ‘the biological descendants of the following’ and then proceeds to list the names of 34 people. There is nothing on the face of the application which leads me to conclude that the description of the native title claim group indicates that not all persons in the native title group have been included, or that it is in fact a subgroup of the native title claim group. Name and address for service: s. 61(3) The application must state the name and address for service of the person who is, or persons who are, the applicant.
Result The application meets the requirement under s. 61(3).
Reasons The name and address for service of the applicant’s representative is found on page 14 of the application. Native title claim group named/described: s. 61(4) The application must: (a) name the persons in the native title claim group, or (b) otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
Result The application meets the requirement under s. 61(4).
Reasons The application at Schedule A does not name the persons in the native title claim group but contains a description of the persons in the group. Application in prescribed form: s. 61(5) The application must: (a) be in the prescribed form, (b) be filed in the Federal Court, (c) contain such information in relation to the matters sought to be determined as is prescribed, and (d) be accompanied by any prescribed documents and any prescribed fee.
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Result The application meets the requirement under s. 61(5). Reasons The application is in the form prescribed by Regulation 5(1)(a) of the Native Title (Federal Court) Regulations 1998 and was filed in the Court as required. It contains the information prescribed by ss. 61 and 62 and is accompanied by the prescribed documents (that is, an affidavit from each of the persons who comprise the applicant prescribed by s. 62(1)(a)). Affidavits in prescribed form: s. 62(1)(a) The application must be accompanied by an affidavit sworn by the applicant that: (i) the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and (ii) the applicant believest tha none of the area covered by the application is also covered by an approved determination of native title, and (iii) the applicant believes all of the statements made in the application are true, and (iv) the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and (v) setting out details of the process of decision‐making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it.
Result The application meets the requirement under s. 62(1)(a). Reasons The application is accompanied by affidavits from each of the nine persons who comprise the applicant. The affidavits are signed by each deponent, appear to be competently witnessed and make the statements required by this section. Each of the affidavits comply with subsection 62(2)(e)(v) requiring that details of the decision– making process complied with in authorising the applicant be set out. Paragraph 8 of each affidavit contains the statement that the agreed decision‐making process of the claim group is ‘based upon the traditional laws and customs of the Bidjara People’: In particular, I know that the Bidjara People firstly discuss matters with their family group, the second stage involves a meeting of Elders from each family and the final stage is a meeting of all adult Bidjara People where the decision is made by majority vote. Application contains details required by s. 62(2): s. 62(1)(b) The application must contain the details specified in s.62(2).
Delegate’s comment My decision regarding this requirement is the combined result I come to for s. 62(2) below. Subsection 62(2) contains 9 paragraphs (from (a) to (h)), and I address each of these
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subrequirements in turn, as follows immediately here. My combined result for s. 62(2) is found at page 13 below and is one and the same as the result for s. 62(1)(b) here.
Result The application meets the requirement under s. 62(1)(b).
Information about the boundaries of the area: s.62(2)(a) The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application.
Result The application meets the requirement under s. 62(2)(a).
Reasons Schedule B of the application refers to Attachment B which describes the external boundaries of the application area by the use of coordinates within a geographical description. Information about the areas within the external boundary which are not covered by the application area is also provided at Schedule B at paragraphs 1 through to 6.
Map of external boundaries of the area: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i).
Result The application meets the requirement under s. 62(2)(b).
Reasons Schedule C of the application refers to an Attachment C which is a map that shows the external boundaries of the application area.
Searches: s. 62(2)(c) The application must contain the details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non‐native title rights and interests in relation to the land and waters in the area covered by the application.
Result The application meets the requirement under s. 62(2)(c).
Reasons Schedule D states that no searches have been carried out by the applicant.
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Description of native title rights and interests: s. 62(2)(d) The application must contain a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native titled rights an interests that may exist, or that have not been extinguished, at law.
Result The application meets the requirement under s. 62(2)(d).
Reasons Schedule E provides a description of the native title rights and interests claimed in relation to the particular land and waters covered by the application area. The description does not consist only of a statement to the effect that the native title rights and interests are all the rights and interests that may exist, or that have not been extinguished, at law.
Description of factual basis: s. 62(2)(e) The application must contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area, and (ii) there exist traditional laws and customs that give rise to the claimed native title, and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Result The application meets the requirements under s. 62(2)(e).
Reasons Schedule F refers to Attachment F which contains information going to the factual basis on which it is asserted that the native title rights and interests claimed exist, and also for the particular assertions in the section. Further information in relation to the factual basis is contained in Schedule G and Attachment M and in the affidavits provided by members of the claim group. The general description does more than recite the particular assertions and in my view meets the requirements of a general description of the factual basis for the assertions identified in this section—see Queensland v Hutchison (2001) 108 FCR 575 [at 25].
Activities: s. 62(2)(f) If the native title claim group currently carries out any activities in relation to the area claimed, the application must contain details of those activities.
Result The application meets the requirement under s. 62(2)(f).
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Reasons Schedule G contains details of activities carried out by the native title claim group in the application area. Further details of activities are provided in the affidavits of members of the claim group and also referred to in Schedule F and its Attachment.
Other applications: s. 62(2)(g) The application must contain details of any other applications to the High Court, Federal Court or a recognised state/territory body of which the applicant is aware, that have been made in relation to the whole or part of the area covered by the application and that seek a determination of native title or of compensation in relation to native title.
Result The application meets the requirement under s. 62(2)(g).
Reasons Schedule H contains the details of four other applications seeking determination of native title made in relation to some or all of the Bidjara People application area: Bidjara People #3 (QUD6156/98), Bidjara People #4 (QUD6169/98), Kangoulu #2 (QG 6007/99) and Karingbal People #2 (QUD 23/06).
Section 24MD(6B)(c) notices: s. 62(2)(ga) The application must contain details of any notification under s. 24MD(6B)(c) of which the applicant is aware, that have been given and that relate to the whole or part of the area covered by the application.
Result The application meets the requirement under s. 62(2)(ga).
Reasons Scheduls HA states that the applicant is not aware of any notifications given in accordance with s. 24MD(6B)(c) of the Act.
Section 29 notices: s. 62(2)(h) The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application.
Result The application meets the requirement under s. 62(2)(h).
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Reasons Schedule I refers to geospatial data held by the Tribunal and lists 35 notices given under s. 29 which fall within the external boundary of the application as at 4 March 2008.
Combined result for s. 62(2) The application meets the combined requirements of s. 62(2), because it satisfies each of the subrequirements of ss. 62(2)(a) to (h). See also the result for s. 62(1)(b) above.
Combined result for s. 190C(2) The application satisfies the condition of s. 190C(2), because it does contain all of the details and other information and documents required by ss. 61 and 62, as set out in the reasons above. Subsection 190C(3) No common claimants in previous overlapping applications The Registrar/delegate must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if: (a) the previous application covered the whole or part of the area covered by the current application, and (b) the previous application was on the Register of Native Title Claims when the current application was made, and (c) the entry was made, or not removed, as a result of the previous application being considered for registration under s. 190A.
Result The application satisfies the condition of s. 190C(3).
Reasons The requirement that the Registrar be satisfied in the terms set out in s. 190C(3) is only triggered if all of the conditions found in ss. 190C(3)(a), (b) and (c) are satisfied—see Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC)—at [9]. Section 190C(3) essentially relates to ensuring there are no common native title claim group members between the application currently being considered for registration (‘the current application’) and any overlapping ‘previous application’ on the Register. A search of the current application area against the Register1 reveals the following four overlapping applications were on the Register when this current application was made:
• QC06/5—Karingbal 2—QUD23/06, accepted for registration as a result of consideration under s. 190A on 24 March 2006
• QC99/6—Kangoulu People 2—QUD6007/99, accepted for registration as a result of consideration under s. 190A on 6 April 1999
1 See Tribunal’s geospatial services report and overlaps analysis dated 30 July 2008.
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• QC97/49—Bidjara 3—QUD156/98, accepted for registration as a result of consideration under s. 190A on 21 September 2000
• QC97/62—Bidjara 4—QUD169/98, accepted for registration as a result of consideration under s. 190A on 8 September 1999 However, a search of the Register prior to making this decision reveals that the two previous Bidjara applications were removed from the Register on 10 September 2008, following leave being granted by the Court on 31 July 2008 for those applications to be discontinued and the filing of notices of discontinuance of both applications on 5 September 2008. Accordingly, the two Bidjara applications are not ‘previous’ applications in the sense required by subsection (c) of s. 190C(3), as they have been discontinued with the leave of the Court and have consequently been removed from the Register before the making of this decision. However, it is still necessary for me to consider whether I am satisifed that there are no common members between the current application and the Karingbal 2 and the Kangoulu People 2 applications, as these applications remain on the Register as at the date of this decision. The description at Schedule A of this current application contains (amongst other things) a definition of the claim group as the descendents of 34 persons. In relation to the Kangoulu People 2 application, none of the names of these ancestors appear in the description of the Kangoulu claim group. On the face of it, there is apparantly no commonality between the two claims either of the ancestors as described or of the persons comprising the applicant. It would appear that the claims are by different and competing groups. Further, the Bidjara group’s anthropologist states the ancestors of the overlapping claims are not common (refer to the quote from his affidavit below). Finally, I do not have any information before me that would cause me to be concerned that there may be members in common with the Kangoulu claim. It follows then that I am satisified that there are no common members between the previous Kangoulu People 2 application and the current application. In relation to whether I can be satisfied that there are no common members between the current application and the Karingbal 2 application, I note that [Ancestor 1 – name deleted] is identified as an apical ancestor for the Karingbal 2 claim group. Her name is not dissimilar to the names of two of the ancestors used to describe the Bidjara People—[Ancestor 2 – name deleted] and [Ancestor 3 – name deleted]. As mentioned above, the affidavit of, [Anthropologist 1 – name deleted] anthropologist, dated 9 April 2008 and attached to the current application, states the following: This Application overlaps with the Karingbal People #2 (QUD23/06) and the Kangoulu People #2 (QUD6007/99) claims, but I say that none of the apical ancestors referred to in the Application are common with either of those claims—at [7]. As this statement does not contain specific reference to the apical ancestors in question, I was not sufficiently satisfied that all three ancestors with the name [Ancestor 2] were different people. I also note that the applicant is represented by QSNTS which is a body funded pursuant to s. 203FE to perform all of the functions of a representative body, including the certification function, and I note also that the application has been certified by the QSNTS.2 In light of this potential commonality between one or more of the three [Ancestors 1 , 2 & 3] named on each application,
2 The details in relation to this are referred to in my reasons below at s. 190C(4).
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the applicant’s legal representative was asked on 14 August 2008 to provide an explanation as to the basis upon which the anthropologist could say that none of the Karingbal apical ancestors and the Bidjara apical ancestors were the same. On 20 August 2008, QSNTS provided, in summary, the following information:
• Neither Bidjara [Ancestor 2] is from the same geographical area as the Karingbal [Ancestor 3] (though it is not certain where the Bidjara [Ancestor 3] came from);
• The offspring of [Ancestor 1] do not appear on the genealogies of either Bidjara [Ancestor 2]; and
• There is a documented disparity in the dates and locations of the three [Ancestors 1, 2 & 3] and the birth locations and dates of their children. On the face of this information and in addition to the sworn affidavit by the group’s anthropologist, I accept that the three apical ancestors named [Ancestors 1, 2 & 3] are three separate people. None of the other names of ancestors from which each of the native title claim groups are said to be descended are the same. Additionally, none of the persons who comprise the applicant are the same in the Bidjara and Karingbal claims. I am satisfied that there are no common members between the previous Karingbal 2 application and the current Bidjara People application. I am therefore satisfied that no person included in the native title claim group for the current application was a member of the native title claim group for either of the two previous applications. Subsection 190C(4) Authorisation/certification Under s. 190C(4) the Registrar/delegate must be satisfied either that: (a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
Result I must be satisfied that the requirements set out in either ss. 190C(4)(a) or (b) are met, in order for the condition of s. 190C(4) to be satisfied. For the reasons set out below, I am satisfied that the requirements set out in s. 190C(4)(a) are met because the application has been certified by each representative Aboriginal/Torres Strait Islander body that could certify the application.
Reasons This application is purported to have been certified by QSNTS and it is therefore necessary to consider if the requirements of s. 190C(4)(a) are met. A written certification by a representative body must:
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• include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a) and (b) have been met; and
• briefly set out the body’s reasons for being of that opinion; and
• where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3) (see s. 203BE(4)). A representative body must not certify . . . an application for a determination of native title unless it is of the opinion that:
• all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and
• all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group (s. 203BE(2)). The role of the Registrar when faced with a certification by a representative body has been considered in Doepel. Justice Kiefel followed that decision in Wakaman People 2 v Native Title Registrar and Authorised Delegate (with Corrigendum dated 5 September 2006) [2006] FCA 1198 (5 September 2006). Her Honour said: … In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. His Honour later observed that, in determining whether the certificate was in accordance with s. 203BE, the Registrar is required to address the terms of the certificate. The Registrar was not required to go beyond that point to be satisfied that the requirement of subs (4)(a) was met (at [80]). The contrast between paragraphs (a) and (b) of subs (4) indicate that responsibility in the former rests with the representative body which is required to address the requirements of s. 251B; and in the case of paragraph (b) the responsibility lies with the Registrar. It was to be noted, his Honour observed, that s. 203B(2) emphatically states that the representative body ‘must not’ provide its certificate unless it is of the opinion that all persons in the claim group have authorised the applicant to make the application. In his Honour’s view it followed that s. 190C(4)(a) does not leave some residual obligation upon the Registrar, once satisfied of the matters to which it expressly refers, to revisit the certification of the representative body (at [81]). I respectfully agree—at [32]. And then: … A consideration of aspects of the authorisation process is not to be undertaken by a Registrar where the application in question has been certified in accordance with s. 203BE. Certification means that the function has been carried out by the representative body and there is no basic function for the Registrar to carry out—at [34]. Information before the delegate The certification by QSNTS is attached to the application and referred to at Schedule R. It is dated 22 July 2008 and signed by the principal legal officer for that organisation. A search of the representative body boundaries in the area of the application reveals that QSNTS is the only representative body for the application area—see the the geospatial report. Therefore QSNTS is the only body that could certify the application under s. 203BE.
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Consideration QSNTS is funded under the Native Title Program of the Department of Families, Housing, Community Services and Indigenous Affairs to deliver all of the functions of a representative body generally, in accordance with s. 203FE(1)(a). The certificate is expressed as the opinions and certification of QSNTS’s principal legal officer rather than those of the representative body. Clarification was sought from QSNTS as to whether the certification function had been delegated by QSNTS to the principal legal officer. QSNTS responded that ’the Principal Legal Officer of QSNTS has been delegated the certification function provided for in s. 203BE on behalf of QSNTS‘ (letter dated 14 August 2008). In light of this written confirmation, I am satisfied that a certification by the principal legal officer of QSNTS sufficiently complies with the requirements of s. 203BE, for the purposes of s. 190C(4)(a). The certification contains the statements and information required by s. 203BE(4). For the purposes of s. 203BE(4)(a), the certificate includes a statement that the principal legal officer is satisfied that the provisions of paragraphs 203BE(2)(a) and (b) have been met. For the purposes of s. 203BE(4)(b), the certificate briefly sets out the officer’s reasons for being of that opinion. The certificate describes the process of consultation, decision‐making and final consensus reached at an authorisation meeting held on 10 February 2007 at Charleville, Queensland. The certificate also states that all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the persons in the native title claim group. sIt state that anthropological and genealogical research provides evidence to support and confirm the composition of the claim group and also the area claimed in the application. Section 203BE(3) provides for a representative body’s obligations to make all reasonable efforts to reach agreements between overlapping claimant groups and to minimise the number of overlapping applications. If there are overlapping applications, in accordance with s. 203BE(4), the certification must briefly set out what the representative body has done to meet the requirements of subsection (3). As part of the land and waters of the Bidjara People application is overlapped by other applications, subsection (3) is applicable to the certification of this application. The certificate contains statements at paragraphs 4(b) and 5 about the efforts made by QSNTS to resolve the overlapping applications. I am satisfied that the application has been certified by the one recognised body that could certify it, and the requirements of s. 190C(4)(a) are therefore met.
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Merit conditions: s. 190B Subsection 190B(2) Identification of area subject to native title The Registrar must be satisfied that the information and map contained in the application as required by ss. 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
Information regarding external and internal boundaries: s. 62(2)(a) The application must contain information, whether by physical description or otherwise, that enables identification of the boundaries of: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application.
Map of external boundaries: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i).
Result The application satisfies the condition of s. 190B(2).
Reasons Schedule B refers to Attachment B which is a description prepared by the Tribunal’s Geospatial Services on 23 May 2007. Attachment B describes the application area by metes and bounds referencing shire boundaries, native title determination application boundaries and topographic features including rivers and creeks. The written description of the external boundary uses geographic coordinates commencing in the south‐west of the application area. It also provides sources and reference data. A written description of the areas within the external boundary that are not covered by the application is found also in Schedule B, at paragraphs 1 through to 6. This is a description listing a number of qualifications to which the application is subject, excluding previous exclusive possession acts as defined in s. 23B, scheduled interests, freehold estates and certain kinds of leases. The description states that any land or waters falling within certain provisions of s. 23B or ss. 47, A47 or 47B are included in the application and that the application area excludes any land or waters where native title has been extinguished. Schedule C refers to Attachment C which is a monochromatic copy of a colour map titled ‘Native Title Determination Application (Proposed Bidjara)’ prepared by Geospatial Services dated 23 May 2007 and includes:
• the application area depicted by a bold outline labelled ‘Proposed Bidjara’;
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• topographic background;
• abutting native title determination applications shown and labelled;
• significant localities and places of interest, towns and roads;
• scale bar, north point, coordinate grid, locality map and legend; and
• notes relating to the source, currency and datum of data used to prepare the map. Section 190B(2) requires that the information in the application describing the areas covered by the application is sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. For the Registrar to be satisfied that this can be said, the written description and the map are required to be sufficiently consistent with each other. Having regard to the comprehensive identification of the external boundary in Attachment B and then the clarity of the mapping of this external boundary on the map in Attachment C, I am satisfied that the external boundaries of the application area have been described such that the location of it on the earth’s surface can be identified with reasonable certainty. Geospatial Services has also provided an assessment of the map and written description (the geospatial report). The assessment notes that a number of errors were discovered with the description, principally some longitudinal references which should read as latitude references and another on page 11 to do with directional references. The Geospatial Services assessment is that, notwithstanding these minor errors, the description and map are consistent and identify the application area with reasonable certainty. I agree with that assessment. A generic or class formula to describe the internal boundaries of an application is acceptable if the applicant has only a limited state of knowledge about any particular areas that would so fall within the generic description provided: see Daniels & Ors v State of Western Australia [1999] FCA 686—at [32]. There is nothing in the information before me to the effect that the applicant is in possession of a tenure history or other information such that a more comprehensive description of these areas would be required to meet the requirements of the section. In fact the applicant expressly states in Schedule D that no searches have been undertaken to identify non‐native title rights and interests in the application area. In these circumstances, I find the written description of the internal boundaries is acceptable as it offers an objective mechanism to identify which areas fall within the categories described. In conclusion, I am satisfied that the information and the maps required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular areas of the land or waters. The application satisfies the condition of s. 190B(2) as a whole. Subsection 190B(3) Identification of the native title claim group The Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application, or
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(b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
Result The application satisfies the condition of s. 190B(3).
Reasons Under this condition, I am required to be satisfied that one of either s. 190B(3)(a) or (b) has been met. The application does not name the persons in the native title claim group but contains a description. Schedule A of the application contains this description of the group: The Bidjara People are the biological descendants of the following: [List 1 of Ancestors ‐ names deleted] In Doepel, Mansfield J stated that: The focus of s 190B(3)(b) is whether the application enables the reliable identification of persons in the native title claim group. Section 190B(3) has two alternatives. Either the persons in the native title claim group are named in the application: subs (3)(a). Or they are described sufficiently clearly so it can be ascertained whether any particular person is in that group: subs (3)(b)—at [51]. Mansfield J also said that the focus of s. 190B(3) is: not upon the correctness of the description of the native title claim group, but upon its adequacy so that the members of any particular person in the identified native title claim group can be ascertained—at [37]. Further, Carr J in State of Western Australia v Native Title Registrar (1999) 95 FCR 93 (Western Australia v Native Title Registrar) found, in the way native title claim groups were described, that: It may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently—at [67]. As the application does not name the persons in the native title claim, group I must consider if, pursuant to s. 190B(3)(b), this description is sufficiently clear so that it can be ascertained whether any particular person is in the native title claim group. I understand these authorities to mean that the description at Schedule A needs to contain some objective means of identifying or ascertaining the members of the group. Describing the claim group as the ‘biological descendants’ of certain named persons provides a suffuciently reliable means by which to ascertain a person’s membership of the group. A member of the Bidjara People claim group will have one or more of the above named persons as an ancestor. I am of the view that the native title claim group is described sufficiently clearly to enable identification of any particular person in that group. It may be that some factual inquiry may be required to ascertain how members of the claim group are descended from the named apical ancestors, but that would not mean that the group had not been sufficiently described.
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Subsection 190B(4) Native title rights and interests identifiable The Registrar must be satisfied that the description contained in the application as required by s. 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
Result The application satisfies the condition of s. 190B(4).
Reasons Section 190B(4) requires the Registrar to be satisfied that the description of the claimed native title rights and interests contained in the application is sufficient to allow the rights and interests to be identified—Doepel at [92]. In Doepel, Mansfield J refers to the Registrar’s consideration: The Registrar referred to s 223(1) and to the decision in Ward. He recognised that some claimed rights and interests may not be native title rights and interests as defined. He identified the test of identifiability as being whether the claimed native title rights and interests are understandable and have meaning. There is no criticism of him in that regard—at [99]. I am of the view that for a description to be sufficient to allow the claimed native title rights and interests to be readily identified, it must describe what is claimed in a clear and easily understood manner. Native title rights and interests are defined in the Act at s. 223(1), which states: The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. With this definition in mind it may be argued that rights and interests that have been found by the courts to fall outside the scope of s. 223 cannot be ‘readily identified’ for the purposes of s. 190B(4). On another view, s. 190B(4) is only intended to cover those rights and interests that are not readily identified in the sense of being unintelligible or not understandable. On this view, any rights that fall outside the scope of s. 223 should be considered under s. 190B(6) as not able to be prima facie established. I have adopted this latter view and do not consider those rights that fall outside the scope of s. 223 under this condition at s. 190B(4). The description of the native title rights and interests claimed in relation to particular land or waters is found at Schedule E: 1. Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment or where s238, ss47, 47A, or 47B apply), the Bidjara People claim the right to possess, occupy, use and enjoy the lands and waters of the application
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area as against the whole world, pursuant to the traditional laws and customs of the claim group. 2. Over areas where a claim to exclusive possession cannot be recognised, the Bidjara People claim the following rights and interests: a) the right to access the application area; b) the right to camp on the application area; c) the right to erect shelters on the application area; d) the right to exist on the application area; e) the right to move about the application area; f) the right to hold meetings on the application area; g) the right to hunt on the application area; h) the right to fish on the application area; i) the right to use the natural water resources of the application area including the beds and banks of watercourses; j) the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs; k) the right to conduct ceremony on the application area; l) the right to participate in cultural activities on the application area; m) the right to maintain places of importance under traditional laws, customs and practices in the application area; n) the right to protect places of importance under traditional laws, customs and practices in the application area; o) the right to conduct burials on the application area; p) the right to speak for and make non‐exclusive decisions about the application area; q) the right to cultivate and harvest native flora according to traditional laws and customs;
3. The native title rights and interests are subject to: a) The valid laws of the State of Queensland and the Commonwealth of Australia; and b) The rights conferred under those laws. I am satisfied that the description of all eighteen native title rights and interests claimed is sufficient to allow for them to be readily identified in the sense that they are described in a clear and easily understood manner. Subsection 190B(5) Factual basis for claimed native title The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area, and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interest, and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Delegate’s comments
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For the application to meet this merit condition, the delegate must be satisfied that a sufficient factual basis is provided to support the assertion that the claimed native title rights and interests exist and to support the particular assertions in paragraphs (a) to (c) of s. 190B(5). In Doepel, Mansfield J stated at [17] that: Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the `factual basis on which it is assertedʹ that the claimed native title rights and interests exist `is sufficient to support the assertionʹ. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. In considering this condition, I will take account of the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; (2002) 194 ALR 538; [2002] HCA 58 (Yorta Yorta) as to what is meant by the word ‘traditional’ in the context of the phrase ‘traditional laws and customs’. That is: A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, “traditional” carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are “traditional” laws and customs. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist—at [46]—[47]. I understand Yorta Yorta to be authority that:
• traditional laws and customs are ones that a society passes on from one generation to another;
• laws and customs arise out of, and go to define, a particular society, that is a body of persons united in, and by, its acknowledgement and observance of a body of laws and customs;
• traditional laws or customs are derived from a body of norms or normative system that existed before sovereignty;
• rights and interests are rooted in pre‐sovereignty traditional laws and customs;
• it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout the period since
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sovereignty was asserted as a body united by its acknowledgement and observance of the laws and customs. The information that is before me must address how it is asserted that the rights and interests as currently expressed by the claim group are ‘rooted in pre‐sovereignty laws and customs’3. That is, what does the factual basis say about the content of the law and custom and does the factual basis identify how it is derived from the rules of a normative society that existed before the assertion of sovereignty? That the application needs to provide some factual basis to identify the society that is asserted to have existed at least at the time of European settlement is supported, in my view, by the decision in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (Gudjala #2). I refer to [96] where it is noted that in the application before the Full Court there was material in the application which ‘contained several statements which, together, would have provided material upon which a decision‐maker could be satisfied that there was, in 1850–1860, an indigenous society in the claim area observing identifiable laws and customs’. Information considered The application contains a general description of the factual basis as required by s. 62(2)(e) in Attachment F of the application and is comprised of the following material:
• A statement that provides a general description of the factual basis—pages 1—20
• Affidavit of [Anthropologist 1] (sworn 9 April 2008). [Anthropologist 1] is the anthropologist engaged by QSNTS to research the Bidjara People’s native title claim. I shall refer to him as the anthropologist and to his material as the anthropological material. Additionally, the application contains further material relating to the factual basis in Attachment M. Finally the application is accompanied by affidavits from the nine persons who comprise the applicant—Floyd Robinson (sworn 21 February 2008), Brendan Wyman (sworn 21 February 2008), Randall Johnson (sworn 21 February 2008), Robert Raymond Lloyd Robinson (sworn 22 July 2008), Robert Ernest Mailman (sworn 21 February 2008), Keelen Mailman (sworn 21 February 2008), Sheryl Lawton (sworn 21 February 2008), Helen Coulahan (sworn 21 February 2008), Patricia Fraser (sworn 21 February 2008). Each deponent states that they believe that all the statements made in the application are true, as required by s. 62(1)(a)(iii). I note also that each deponent also provides further information relevant to the factual basis, to which I refer in more detail below. In relation to my consideration of the information forming part of this application, I refer to the recent Full Court decision in Gudjala #2. The general contention in this decision is that s. 190B(5) does not require the applicant ’to provide evidence that proves directly or by inference the facts necessary to establish the claim’—[at 92]. Additionally, the decision states at [90] that an application which ‘fully and comprehensively’ furnishes the information required by s. 62 and which is supported by the prescribed accompanying affidavit, should meet the requirements of s. 190B(5).
3 Yorta Yorta—at [79].
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The anthropologist annexes to his affidavit a list of various research material upon which he relies. He also states that he has conducted field work in relation to the application area and spoken with members of the claim group. I note again that all persons comprising the applicant state on oath in their affidavits that they believe that all the statements made in this application are true. The application states, at Attachment F, that the evidence provided ‘is based on preliminary anthropological and historical research conducted between 1999 and 2006 and supporting documents as referenced’—at [p.1]. The anthropologist states in his affidavit that he has had substantial involvement with the Bidjara People and conducted significant research with respect to their native title claim. In his field research he has relied upon oral histories of the Bidjara People and various other research material (a list of which he annexes to his affidavit). He has prepared peer reviewed reports which identify the claim group and the area of the claim sufficient to make the native title determination application. The test in s. 190A involves an administrative decision—it is not a trial or hearing of a determination of native title pursuant to s. 225, and therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is not the task of the delegate to make findings about whether or not the claimed native title rights and interests exist. It is not the role of the delegate to reach definitive conclusions about complex anthropological issues pertaining to the applicant’s relationship with their country as that is a judicial enquiry.
Below, I consider each of the three assertions set out in the three paragraphs of s. 190B(5) in turn and come to combined result for s. 190B(5) at page 33 below. I have quoted only those passages from the material before me which are pointedly relevant to each of the assertions.
Result re s. 190B(5)(a) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(a).
Reasons re s. 190B(5)(a) This subsection requires me to be satisfied that the factual material provided is sufficient to support the assertion that the native title claim group have and the predecessors of those persons had an association with the application area. The affidavits of three of the persons who jointly comprise the applicant provide a factual basis for the assertion that the native title claim group are and its predecessors have been associated with the area: [Applicant 1 – name deleted]: [at 12]—I am a Bidjara man. I am 74 years old ... My parents and grandparents were all born on and lived in Bidjara Country and were Bidjara People. I know this because throughout my life I was told this by them and also that they have been told by their parents and grandparents to whom it had been passed by previous generations. I was also told by them that I was a Bidjara man … that the Bidjara People operated as a cohesive society in the claim area for countless generations and we are the same People as before us and must carry out the same traditions as that society. [at 17] Many Bidjara people still live on or near the claim area. We frequently use the claim area for traditional purposes such as those referred to in subsequent paragraphs.
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[Applicant 2 – name deleted]: [at 11] I grew up in Augathella at the ʺyumbaʺ (camp) with my mother and about 16 or 17 other Bidjara families in a close‐knit group who maintained contact with other Bidjara yumbaʹs … [at 13] I have been told by the Bidjara Elderst tha this has always been territory occupied by Bidjara People since time immemorial ... We know of burial sites within the claim area and have endeavoured to keep the location of such sites secret and protected. With respect to burial sites particularly within Mount Tabor lease area we have engaged in the fencing off of those sites to further protect them … [Applicant 3 – name deleted]: [at 25] There are at least 2000 Bidjara People living in the claimed area and descended from the apical ancestors named in the application. I believe they would constitute a majority of the Bidjara People … Mt Tabor Station, which is in the claim area, was purchased by the Indigenous Land Corporation for the Bidjara People and with respect to that land the Bidjara People exert total control … With respect to other areas the Bidjara People exert influence over the area and usea the are for various traditional customary purposes. All of the affidavits of the persons comprising the applicant contain the following paragraph: I have accessed the land and waters claimed and collected bush tucker, hunted game and fished the waters in accordance with the customs and traditions of the Bidjara People. I have done this in conjunction with other members of the Bidjara People. I have done this on an average of at least once per month at specific sites in the claim area. I have seen my children and other members of the Bidjara People exercise traditional skills of making artefacts, which are made from resources found on our traditional lands. The affidavit of the anthropologist, contains, in summary, the following information about the group’s past and present association with the area:
• he cites written evidence of Aboriginal occupation in the area as detailed by early explorers, archaeologists and anthropologists;
• that members of the current Bidjara claim group can trace their ancestry back to the named apical ancestors;
• reference to apical ancestors that were present and resident in the Bidjara claim area—e.g. [Ancestor 4 – name deleted];
• reference to linkages that can be made between the current generation of Bidjara People and the persons recorded as in occupation at the time of first contact. Attachment F also refers to information about the group’s past and present association with the area, citing:
• archaeological evidence, including scarred trees, bora rings, rock art, stone and ochre quarries, stone artefacts and burials have been recorded within and around Bidjara claim areas;
• ethnographic evidence from the area comes from Curr (1887) whose informants collected material from Bidjara speaking people in Tambo, the Warrego and upper Nogoa Rivers during the 1860s to 1880s;
• that after European contact the sheep and cattle industries enabled many people to live on country by working as either stockmen, drovers or in other related forms of labour;
• that people also worked in towns as labourers or domestics and lived in yumbas (camps) from the early days of settlement;
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• Bidjara ancestors including [List 2 of Ancestors ‐ names deleted] and others worked as stockmen in and around country—[Ancestor 4], (b. between 1860 and 1870), known as the ʺKing of the Warregoʺ;
• that the group currently owns and manages Mount Tabor station enabling people to be actively involved in continued management of cultural resources, including rock art sites and burial sites;
• Bidjara People continue to hunt, fish, gather plants and camp in the claim area in accordance with their traditional laws and customs. Many of the activities listed in Schedule G and the details contained in Schedule M are also relevant to the factual basis upon which the native title claim group’s current and past association with the application area is asserted. I am of the view that I am able to find references within all of this material to families, localities, and the predecessors of the group to a sufficiently wide and varied extent. The material I have before me sufficiently supports the assertion that the Bidjara People currently have an association with the whole of the area. Lines of descent are sufficiently demonstrated such that I believe that there is support for the fact that the predecessors of the claim group had an association with the whole of the claim area.
Result re s. 190B(5)(b) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(b).
Reasons re s. 190B(5)(b) This subsection requires me to be satisfied that the factual material provided is sufficient to support the assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group that give rise to the claim to native title rights and interests. The affidavits of three of the persons who jointly comprise the applicant provide a factual basis to support the assertion:
[Applicant 1]: [at 17]—These traditional purposes, and the manner of exercising them, were taught to us by our elders who also told us that these practices had been carried out by them and had been taught to them by their elders and that they were passed down from the society of Bidjara people occupying these lands at the time of British sovereignty. [at 20] Our law is specific that there are certain sites that should not be visited by women and certain sites that should not be visited by men and certain sites that should by avoided by all people. Our law also requires that people not kill any animal or bird except for the purpose of consumption, it is against our law to kill animals for the sake of it. [at 22] With respect to the rules relating to hunting and fishing I believe that Bidjara People honour these rules. For example, it is prohibited for the Bidjara People to kill and eat the Kangaroo Rat or the Curlew. [at 24] I grew up speaking the Bidjara language fluently as we spoke it in our family and my extended family and I know that they also passed on this knowledge to their descendants. For my part I taught [Applicant 2] the Bidjara Language … In the Canarvon Gorge there is a two finger sign painted on the walls. I was told by my uncle [Person 1 – name deleted] that this was a Bidjara sign.
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[Applicant 2]: [at 13] There are some traditional laws and customs which are exclusively related to ʺMenʹs Businessʺ. With respect to such issues I refer my male children to a Bidjara elder such as [Applicant 4 – name deleted]… There are some areas which are exclusively ʺWomenʹs Business ʺ. I teach my girls about these areas and what they mean. Activities conducted in the claim area by Bidjara People are conducted according to customary law, as taught by our Elders (such as [Applicant 4]). . [at 15] I speak the Bidjara Language fairly fluently. I can understand it well when it is spoken to me by other Bidjara people. I was taught the language by my mother, my aunts and uncles. I know the Bidjara names of a large number of fruits and animals that we use for food and medicinal purposes. [at 18] It is a cultural imperative for Bidjara People to respect our Elders. [Applicant 3]: [at 25] Bidjara People must not kill or damage any plant or animal except for the purpose of consumption. There are some animals which we must not kill (e.g.: the Kangaroo Rat) …Bidjara People must not move stones or tools except for purposes of traditional usage … There are sites to which access is prohibited by Bidjara law (some for women, some for men, and some for both). All of the affidavits of the persons comprising the applicant contain the following paragraph: I know that Bidjara People (particularly the Elders) keep safe the stories and maintain and create sites of significance to the Bidjara People on the land and waters claimed. I have been told from other Bidjara People that I must speak for our lands and keep our sacred places, they taughtt me tha these things were part of the society of Bidjara people who occupied the claim area at the time of British sovereignty and from whom I descended. With other Bidjara Elders I tell the Bidjara stories to our children as they were told to me when I was a child by my parents and uncles in particular. The affidavit of the group’s anthropologist, includes the following statements: At the time of sovereignty and the occupation of the area [of the claim] there was a normative society of Bidjara People and in particular the persons referred to in this affidavit as apical ancestors were present and resident in the area and living as part of that normative society at or about the time of European settlement of Bidjara Traditional lands … the society of Bidjara People was a semi nomadic hunting/gathering society that dwelt on the lands around an area at least as large as the area shown in the [map of the claim area]. The society was comprised of sub‐groups making a decentralised social structure, coming together for special events and major land issues [at para 8.A.]. The Aboriginal People present at the time spoke the language; Bidjara, were known by neighbouring Indigenous peoples and had a decision making structure of Elders who had responsibility to care and speak for the land—at [9. VI]. Descent from a Bidjara Parent was essential for membership of the Bidjara People. Membership of the claim group entitled a Bidjara person to hunt, fish, gather, dwell and camp on the traditional lands of the Bidjara People. Membership also entitled a Bidjara Person to participate in the ceremonies of the Bidjara People (including the performance of dances, artwork and the telling of stories associated with different parts of the land). A further consequence of being a Bidjara Person was often the acceptance of a belief structure composed of supernatural beings and ancestor spirits that governed many activities of Bidjara People on the lands—[at 9. IX]. Attachment F refers to the anthropologist’s 2006 research (as well others’ ethnographic and archaeological evidence) in relation to the assertion that there exists traditional Bidjara law and custom:
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• At the time of European contact, Bidjara People possessed a form of social organisation based on marriage and descent;
• A system of social division divides the tribe into two moieties, termed ʺXʺ and ʺYʺ by anthropologists, and these moieties are further divided into four sub‐groups. In the past, totems or meats, were assigned to these moieties based on an individualʹs descent and these divisions and assigned totems determined who a person could marry within the tribe;
• The current group of Bidjara People identify themselves as a cognatic (traced through either the mother and/or the father) descent group;
• Within the Carnarvon Ranges several traditional burials within caves are located in the ranges and are often associated with cave art ... motifs include ochre hand stencils, ochre boomerang stencils, ʺspirit websʺ, engraved birdʹs feet, engraved star symbols, and engraved motifs of female genitalia (dhinbanj) and one unique to these ranges and the Bidjara People (a ʺtrademarkʺ of the Bidjara) … several bora rings exist throughout the claim area, suggesting ongoing cultural activities occurring on traditional Bidjara lands;
• The Bidjara language was the primary language of many Bidjara People well into the 20th century—people’s recollection of the language meant that Bidjara language was still in use; [Person 2 – name deleted] died in the late 1950s and spoke the language fluently and sang traditional Bidjara songs. The following is also included in Attachment F: [Person 3 – name deleted] further explains in his 2001 Witness Statement to the Federal Court: ʺThe Mundagatta is dangerous.. .1 can camp near him because Iʹm Bidjara. I can go to the springs at Bogarella, I wonʹt get hurt. Heʹs my snake, he wonʹt hurt me. Anybody else, well I suppose heʹll kill them. He belongs to this country, he belongs to Carnarvon and belongs to Babbilorra. Other Bidjara can camp near him. The snake looks after the country and looks after Bidjara.ʺ Attachment M includes examples of traditional law and custom conducted by both past and current Bidjara People. In summary:
• traditional burial practices, hunting and gathering of flora and fauna and other natural resources;
• traditional songs and corroborees taught by Bidjara ancestors;
• transmission of culture and language to young generations;
• connection of the Bidjara to particular areas within the claim area – Barngo, Mt Tabor, Bogarella, Babbiloora, Carnarvon, the Warrego River;
• sites of spiritual significance in those areas – bora rings, burial sites, rock art and archaeological remains, traditional camping sites, culturally significant caves and native wells ;
• the existence of spiritual beings and their stories – Mundagatta the Rainbow Serpent, the creation of Maryvale and Maranoa Rivers created by two snakes wrestling, Bikardi (White Cockatoo).
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It is clear to me that the application describes the Bidjara People’s adherence to traditional laws and customs and not simply the group’s knowledge of law and custom. The finding in Yorta Yorta is clear—the relevant laws and customs under which the rights and interests are possessed must be rules having normative content. Without that quality there may be observable patterns of behaviour but not rights or interests in relation to land or waters (at [42]). ‘Normative’ in this sense can be understood to be those normal or everyday customs, rules, systems and practices that go to make up a group’s social organisation. In my view, the material before me does provide information about the asserted existence of a society ‘united in and by its acknowledgement and observance of a body of law and custom’—Yorta Yorta at [49]. The material provides a sufficient factual basis for this assertion that there exist traditional laws acknowledged and customs observed by the Bidjara People and that these give rise to the native title rights and interests they claim.
Result re s. 190B(5)(c) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(c).
Reasons re s. 190B(5)(c) This subsection requires me to be satisfied that the factual material provided is sufficient to support the assertion that the claim group continues to hold native title in accordance with their traditional laws and customs. The affidavits of three of the persons who jointly comprise the applicant provide a factual basis to support the assertion: [Applicant 1]: [at 22] Bidjara People continue to hunt and fish in the claim area … During my younger days we snared possum and hunted kangaroo, porcupine and goanna. During my younger years I hunted using an axe and stick. [at 23]. I observed that Bidjara women continue to gather the resources necessary for the manufacture of baskets and other such traditional crafts. The women know where particular grass and shrubs are located to manufacture the baskets and other crafts, they were taught these locations from past generations of Bidjara who performed the same tasks. This practise has continued uninterrupted from as long as I can remember. [at 24] The rules about marriage have evolved over time. Originally the Bidjara people were divided into sub groups. However that has now evolved into an interlocking system of family groups. The rules we have as to marriage remain much the same as in the past. If there is a breach of those rules then it is be dealt with by social ostracism.. [Applicant 3]: [at 19] Within Bidjara society different people perform different specialised functions. For example, [Applicant 4] and [Applicant 5 – name deleted] are regarded as an authority with regard to language, culture, song and dance. [Person 4 – name deleted] is regarded as an authority with respect to ʺwomenʹs businessʺ issues and cultural heritage. [Applicant 2] is regarded as a person responsible for looking after sites of special significance (particularly in the Mt Tabor area) … [at 23] I can speak the Bidjara language to the extent that I can have a conversation with another Bidjara person in such a way that anyone who is not a Bidjara person would not know what we were talking about. Also I know the names of various animals, birds and plants in the Bidjara language. [at 25] Mt Tabor Station, which is in the claim area, was purchased by the Indigenous Land Corporation for the Bidjara People and with respect to that land the Bidjara People exert total control … With respect to other areas the
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Bidjara People exert influence over the area and use the area for various traditional customary purposes …The Bidjara People also have continued to roam and camp over the claim area gathering food and medicine as taught by our Elders. [Applicant 2]: [at 13] currently have my grandchildren at present residing with me and I teach them and my nephews and nieces and other children the language, cultural and traditions of the Bidjara People as taught to me through successive generations. [at 14] The claim area contains many sources of spring water and trees providing special medicines also foods. I have been taught those things by my mother [Person 5 – name deleted] and my uncle [Applicant 4] and others … My mother and grandmother also taught me the significance of ʺWomenʹs Businessʺ sites and stories. [at 19] There have been formal steps taken (in addition to internal family arrangements) to ensure that the passing on of information from generation to generation occurs … young people were taken to our sites with Bidjara adults (such as [Applicant 4]). Our Bidjara artwork was explained and our stories told. They were also taken to the Bidjara ochre pits. [at 20] I know that I am Bidjara as a result of being told this by my mother and other family members who also told me of my descent from the apical ancestors named in the application. I know who the Elders are from the same source and that they are regarded as such by virtue of their age and knowledge. All of the affidavits of the persons comprising the applicant contain the following paragraph: I believe the lands and waters claimed in this Application are truly the traditional lands of our old people of which I am a direct descendant and that our People occupied those lands and waters from time immemorial and the claim group has continued to this present day to have a connection and a unique traditional relationship to those same lands and waters. The affidavit of the anthropologist contains the following information in relation to the factual basis for the assertion that the society in existence at sovereignty has continued despite interruption by European settlement:
• Bidjara People continue to occupy or closely associate with Mt Tabor providing for successive generations of Bidjara People to identify with their traditional lands and the laws and customs of the traditional society;
• Identification with their ancestry is a fundamental requirement of Bidjara membership;
• Many of the current generations are able to speak the Bidjara language to some degree;
• There is respect for Elders and the transmission of knowledge to the current generations, for example in hunting, fishing and camping. Elders of the Bidjara People are persons recognised as seniors with special knowledge of the land and law and customs;
• Descendants of the apical ancestors have continued to conduct themselves as part of a normative society with each successive generation continuing to identify as Bidjara and continuing traditions and customs of the original apical ancestors with modification having regard to changing circumstances;
• Male initiations continued well into the 20th century. One Bidjara individual, who died in 1993, is the last known initiated Bidjara man, the ceremony taking place at a well known bora ring north of Augathella in the 1950s. Attachment F includes examples of factual information said to support that the Bidjara People have continued to hold their native title in accordance with their traditional laws and customs:
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The contemporary group of Bidjara maintain traditional laws and customs to this day … [Applicant 3] … holds authority over traditional protocols amongst the Bidjara … who has safely stored [a stone] since he acquired [it], which is believed to have been used in ancient ceremonies. [Applicant 2] and others teach young children who live and visit at Mt Tabor the Bidjara language as well as Bidjara culture …to this day, Bidjara People do not enter another groupʹs land and do activities like hunting, fishing or entering waters without permission because spirits like Mundagatta, Wanthai (white dingo), and the kadaitcha (or feather foot), among others, will punish them severely, sometimes with death … The contemporary Bidjara People endeavour to keep some burial sites a secret from the public, and aim to fence off and restrict access to those sites which are already known … [Applicant 2]… teaches those traditional laws and customs restricted to women to the girls on Mount Tabor, and … [Applicant 4] teaches the boys the ʺmenʹs businessʺ [at page 4]. Attachment M contains examples of the asserted continuance of traditional law and custom, including:
• the maintenance and protection of culturally significant sites;
• survival of many sensitive archaeological remains;
• preservation of and restriction of access to significant rock art and burial sites;
• maintenance and transmission of cultural heritage and Bidjara language, teaching of traditonal song and dance and cultural knowledge. In my view, the information provided by the group’s anthropologist and the statements made by the applicant together ‘fully and comprehensively’ furnish the information requirements to support the assertion that the Bidjara People continue to hold native title in accordance with their traditional laws and customs. I am satisifed that the factual basis provided in the application supports this assertion.
Combined result for s. 190B(5) The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5), as set out in my reasons above. Subsection 190B(6) Prima facie case The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Result The application satisfies the condition of s. 190B(6). The claimed native title rights and interests that I consider can be prima facie established are identified in my reasons below.
Reasons Under s. 190B(6) I must be satisfied that, prima facie, at least some of the native title rights and interests claimed by the native title group can be established. The Registrar takes the view that this
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requires only one right or interest to be registered. In Doepel, Mansfield J noted at [16] the following: Section 190B(5), (6) and (7) however clearly calls for consideration of material which may go beyond the terms of the application, and for that purpose the information sources specified in s. 190A(3) may be relevant. Even so, it is noteworthy that s. 190B(6) requires the Registrar to consider whether `prima facie ʹ some at least of the native title rights and interests claimed in the application can be established. By clear inference, the claim may be accepted for registration even if only some of the native title rights and interests claimed get over the prima facie proof hurdle. The consideration by the High Court in North Ganalanja Aboriginal Corporation v QLD (1996) 185 CLR 595 (North Ganalanja) of the term ‘prima facie’ as it appeared in the registration sections of the NTA, prior to the 1998 amendments, are still relevant. In that case, the majority of the High Court said: The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase ‘Prima Facie’ is: ‘At first sight; on the face of it; as it appears at first sight without investigation’ [citing the Oxford English Dictionary (2nd ed) 1989]. The test in North Ganalanja was considered and approved in Doepel—at [134]: Although [North Ganalanja] was decided under the registration regime applicable before the 1998 amendments to the NT Act, there is no reason to consider the ordinary usage of “prima facie” there adopted is no longer appropriate… Mansfield J in Doepel also approved of comments by McHugh J in North Ganalanja at—[638] to [641] as informing what prima facie means under s. 190B(6): …if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis. Doepel is authority that this pronouncement of the meaning of prima facie supports the view that it is not for the Registrar to resolve disputed questions of law (such as those about extinguishment and the applicability or otherwise of s. 47B) in considering whether a claimed right or interest is prima facie established under s. 190B(6). Having regard to the above authorities on what is meant by prima facie, it follows that the task under this section is to consider whether there is any probative factual material available evidencing the existence of the particular native title rights and interests claimed. In performing this task, I should have regard to settled law about:
• what is a ‘native title right and interest’ (as that term is defined in s. 223); • whether or not the right has been extinguished; and • whether or not the right is precisely expressed such that it sets out the nature and extent of the right.4 If a described right and interest in this application has been found by the courts to fall outside the scope of s. 223(1) then it will not be prima facie established for the purposes of s. 190B(6). Consideration
4 Western Australia v Ward (2002) 191 ALR 1 (Ward)—at [51]
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As mentioned above in relation to the requirements of s. 190B(5), the registration test involves an administrative decision—it is not a trial or hearing of a determination of native title pursuant to s. 225, and therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is not my role to draw definitive conclusions from the material before me about whether or not the claimed native title rights and interests exist, only whether they are prima facie capable of being established. In my consideration of the rights claimed in the application, I have grouped together rights which appear to be of a similar character and therefore rely on the same evidentiary material or rights which require consideration of the same law as to whether they can be established. In the circumstances where I have found that a particular claimed right cannot be prima facie established, I refer the applicant to the provisions of s. 190(3A) of the Act. I note that the provisions of s. 190(3A) are available to the applicant if there is further information which would support a decision under that section to include a right on the Register. 1. Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s238, ss47, 47A or 47B apply), the Bidjara People claim the right to possess, occupy, use and enjoy the lands and waters of the napplicatio area as against the whole world, pursuant to the traditional laws and customs of the claim group. Not established The majority decision of the High Court in Western Australia v Ward (2002) 191 ALR 1 (Ward) is authority that, subject to the satisfaction of other requirements, a claim to exclusive possession, occupation, use and enjoyment of lands and waters can prima facie be established. However, Ward is also authority for the proposition that such a claim may only be able to be prima facie established in relation to some areas, such as those where there has been no previous extinguishment of native title, or where extinguishment is to be disregarded (for example, where the applicant claims the benefit of ss.47, 47A or 47B). The two rights which make up exclusive possession are (1) a right to control access and (2) a right to make binding decisions about the use of the country. There is mention about the rules of permission relating to access by other Aboriginal people to Bidjara country in general and sites in particular; for example, Attachment F states: The Bidjara People also had spiritual beliefs which warned not only the Bidjara People from entering other groupsʹ traditional lands without permission, but also non‐Bidjara People from entering Bidjara land without permission The application also provides information about the consultative processes in which members of the claim group are involved in relation to heritage matters. It is clear that Bidjara People do make certain kinds of decisions about their country. However, I am of the view that although all of the material before me in the application supports that the claim group have a strong physical and spiritual attachment and connection to the claim area, it does not disclose, prima facie, that the group exercise the exclusive right of possession, occupation, use and enjoyment in relation to the application area as a whole.
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Therefore, on the basis of the material and information currently before me I am unable to find that a prima facie right of possession, occupation, use and enjoyment as against the whole world (where it can be recognised) could be established. 2. Over areas where a claim to exclusive possession cannot be recognised, the Bidjara People claim the following rights and interests: Rights/interests (a)—the right to access the application area Rights/interests (d)—the right to exist on the application area Rights/interests (e)—the right to move about the application area All established Throughout the affidavits and the information in the application at Attachments F and M, evidence is provided as to activities which occur on the application area which necessarily require access to, existing on and moving about the application area. The attachments and affidavit material contain information about cultural heritage management of Bidjara country which involves visiting and maintaining burial places and associated rock art sites; hunting, gathering and collecting natural resources; identified remnants of traditional pathways and tracks confirming the practice of moving about the area since pre‐contact times; travelling across the country via access tracks in order to hunt, gather foods, visit sites, conduct ceremonies, attend meetings and visit neighbouring groups—e.g. the access track to the summit of Mt Moffatt is the location of an ʹold Bidjaraʹ walking trail used to access the northern and eastern parts of the range country. A large proportion of Bidjara continue to live in the claim area and use the area for traditional purposes, to roam and to camp; young people are taken to and taught about Bidjara sites. The material in the application provides support to prima facie establish the rights to access, exist on and move about the application area. Rights/interests (b)—the right to camp on the application area Rights/interests (c)—the rights to erect shelters on the application area Both established The attachments refer to records of waterholes as important campsites associated with ʹDreaming storiesʹ; Bidjara were recorded camping at Ten Mile Camp, just north of CharleviIle along the Augathella road; camps are recorded near the Mount Tabor boundary fence, at the stockyards and ʹPost Officeʹ areas on and around Bogarella Station, and Augathella ʹYumbaʹ (camp) where several Bidjara families camped until the 1970s … Several families, including the [Families – names deleted] resided in old houses/humpies along the Warrego outside Augathella, the ʹPost Officeʹ camp site where Bidjara People had lived and where [Applicant 3]’s mother was born; bark humpies made from strips of bark from trees in the area … scarred trees in the area surrounding the ʹPost Officeʹ suggesting the practice of constructing bark shelters for some time and with frequency … evidence of these traditional shelters being erected on the claim area in more recent times … constructed out of Budjeroo bark.
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The affidavit material refers to members of the current claim group camping in the area in the pursuit of cultural activities such as gathering natural resources, teaching language and cultural heritage. Rights/interests (g)—the right to hunt on the application area Rights/interests (h)—the right to fish on the application area Both established The attachments and affidavit material contain evidence of the Bidjara claim group hunting kangaroo, porcupine, goannas around Augathella; trapping possum; hunting plain turkey, bronze‐ wing pigeons and galahs; also wallabies and carpet snake. There are statements about fishing for crayfish (Bugili) in the Warrego River and other fishing holes and around Mt Tabor Station. Attachment F refers to earlier research by the group’s anthropologist: While in the field with informants I was continually advised about the assertion of (the right to hunt and forage on the claim area) by informants, was provided with bush tuckers and medicines and was generally shown convincingly that these informants are well versed on types of foods and game thate ar available in their country & well practiced at procuring them. Rights/interests (i)—the right to use the natural water resources of the application area including the beds and banks of watercourses Not established There is some evidentiary support for the right to use the natural water ‘sources’, for example the care and inferred use of waterholes and the importance of the Warrego River as cultural sites, camp sites and hunting and fishing sites. I note that Bidjara still use water sources on the claim area for recreation, swimming, yabbying and fishing and are involved in protecting the wells and the Bidjara cultural materials found around them. It is clear that water sources on the claim area hold important religious significance to the Bidjara, and material evidences the Bidjara Dreaming and particular sites of significance associated with water sources and surrounding areas. However, this right is expressed as the right to use natural water resources not the right to use natural water sources (my emphasis). A water ‘resource’ is not the same as a water ‘source’. Therefore, as currently expressed I cannot find that this claimed right can be prima facie established. Rights/interests (j)—the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs Established The attachments and affidavit material contain evidence of the Bidjara claim group gathering witchetty grubs, wild oranges, emu apples, mulga apples, yams; collecting emu eggs; making artefacts from the natural resources gathered around the claim area; collecting and using ochre for use in artworks, gathering Gumbi gumbi, Milia milia for medicinal purposes; gathering the sap from trees for making ‘lollies’; gathering resources for manufacture of baskets and other traditional crafts; knowing where particular grass and shrubs are located to manufacture baskets and other crafts.
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This material provides support to prima facie establish the rights to gather the natural products of the application area. Rights/interests (k)—the right to conduct ceremony on the application area Rights/interests (l)—the right to participate in cultural activities on the application area Rights/interests (f)—the right to hold meetings on the application area All established The attachments and affidavit material contain evidence that the Bidjara People have continued to teach new generations about ceremonial law and custom; there is evidence on the claim area, like bora rings and the cave art, associated with burials, suggesting a tradition of conducting ceremony. Elders teach the young men the Bidjara dances and how to sing the songs so the old ways are not lost; cultural activities are conducted by Bidjara elders to teach heritage, language, law and custom. Historical records describe Bidjara ‘going walkabout’ to meet and confer with Aboriginal families residing on neighbouring stations. Through their involvement in rural industry and living on country, Bidjara People have continued to hold meetings in accordance with their traditional law and custom. Bidjara Traditional Owners conduct meetings in the application area for the purpose of instructing young people on traditional cultural practice and for discussion and observance of significant places. Bidjara Peopleo als conduct meetings on country to make decisions regarding developments on their country. This material provides support to prima facie establish the rights to conduct ceremony, participate in cultural activities and hold meetings on the application area. Rights/interests (m)—the right maintain places of importance under the traditional laws, customs and spractice in the application area Rights/interests (n)—the right to protect places of importance under traditional laws, customs and practices in the application area Both established The attachments and affidavit material contain evidence that the Bidjara People protect and maintain places of cultural importance, for example, by erecting structures to prevent animal and human disturbance of sites. Bidjara maintain sites of ancient rock art, native wells and burial sites, restrict access to certain sites that are sensitive and in danger of being lost permanently, as well as erecting fencing and other barriers. Bidjara are also involved in heritage clearances. This material provides support to prima facie establish the rights to maintain and protect places of importance under traditional laws, customs and practices in the application area. Rights/interests (o)—the right to conduct burials on the application area Not established There is not sufficient material to prima facie establish the right to conduct burials on the application area. Though much of the material before me discusses the existence and preservation of old burial sites and the law and custom traditionally associated with burials, I have no information that makes reference to present burials conducted on the application area.
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Rights/interests (p)—the right to speak for and make non‐exclusive decisions about the application area Not established The attachments and affidavit material contain evidence that Bidjara People have a traditional tribal and social organisation with regulations involving country allowing Bidjara their right to speak for all areas within Bidjara territory, including Mt Tabor Station. Bidjara Elders are consulted on construction projects occurring on the land, such as road, pipeline and wire construction to ensure that the cultural heritage of the Bidjara People is not disturbed. [Applicant 1], [Applicant 2] and [Applicant 3] are all respected Bidjara persons who have authority to speak for and make decisions about Bidjara country. However, this right as currently expressed would appear to contain an element which seeks to exert control and is thus only available where exclusive possession may have survived (the right to speak for country). The ‘right to speak for country involves a claim to ownership’ and can only be recognised in relation to areas of exclusive native title rights and interests.5 On the basis of my finding above that, prima facie, the application does not establish the Bidjara People’s right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, it must follow that the ‘right to speak for country’ cannot be established either. It may be that the application can support, prima facie, the group’s right to make non‐exclusive decisions about the area, however whilst it is expressed in conjunction with the other (and in the absence of the prima facie right of exclusive possession), I am unable to split the two considerations. I therefore cannot find that the right can be prima facie established. Rights/interests (q)—the right to cultivate and harvest native flora according to traditional laws and customs Not established Whilst there is detail regarding the harvesting of native flora contained in the material I have considered, there is not sufficient evidentiary material to prima facie establish a right to cultivate. Therefore, as currently expressed, I cannot find that this claimed right is prima facie established. Conclusion I am satisfied, having considered all the information before me, that the rights as claimed listed below can be prima facie established under s. 190B(6) and should be registered. These rights seem to sit within the definition of native title rights and interests in s. 223 and I note also have not been found by the courts to fall outside the scope of that section. 2. Over areas where a claim to exclusive possession cannot be recognised, the Bidjara People claim the following rights and interests: a) the right to access the application area; b) the right to camp on the application area; c) the right to erect shelters on the application area; d) the right to exist on the application area; e) the right to move about the application area; f) the right to hold meetings on the application area;
5 Neowarra v State of Western Australia [2003] FCA 1402 (8 December 2003) at [494]
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g) the right to hunt on the application area; h) the right to fish on the application area; j) the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs; k) the right to conduct ceremony on the application area; l) the right to participate in cultural activities on the application area; m) the right to maintain places of importance under traditional laws, customs and practices in the application area; n) the right to protect places of importance under traditional laws, customs and practices in the application area; Subsection 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or (b) previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to the land or waters) by: (i) the Crown in any capacity, or (ii) a statutory authority of the Crown in any capacity, or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.
Result The application satisfies the condition of s. 190B(7).
Reasons Under s. 190B(7), I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. Sufficient material is provided at Attachment F, at Schedule M and in the affidavits regarding the traditional physical connection of members of the native title claim group. The material has been quoted at length in my consideration for both s. 190B(5) and s. 190B(6). I am satisfied that at least one member of that group currently has a traditional physical connection with parts of the application area. Subsection 190B(8) No failure to comply with s. 61A The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s.61A (which forbids the making of applications where
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there have been previous native title determinations or exclusive or non‐exclusive possession acts), the application should not have been made.
Delegate’s comments Section 61A contains four subsections. The first of these, s. 61A(1), stands alone. However, ss. 61A(2) and (3) are each limited by the application of s. 61(4). Therefore, I consider s. 61A(1) first, then s. 61A(2) together with (4), and then s. 61A(3) also together with s. 61A(4). I come to a combined result at page 41 below.
No approved determination of native title: s. 61A(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
Result The application meets the requirement under s. 61A(1).
Reasons The geospatial report dated 30 July 2008 and a search undertaken by myself of the Tribunal’s geospatial databases on 12 September 2008 reveals that there are no approved determinations of native title over the application area.
No previous exclusive possession acts (PEPAs): ss. 61A(2) and (4) Under s. 61A(2), the application must not cover any area in relation to which (a) a previous exclusive possession act (see s. 23B)) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23E in relation to the act.
Under s. 61A(4), s. 61A(2) does not apply if: (a) the only previous exclusive possession act was one whose extinguishment of native title rights and interests would be required by section A47, 47 or 47B to be disregarded were the application to be made, and (b) the application states that ss. 47, 47A or 47, as the case may be, applies to it.
Result The application meets the requirement under s. 61A(2), as limited by s. 61A(4).
Reasons Schedule B at paragraph 1 excludes from the application area any area covered by previous exclusive possession acts as defined in s.23B.
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No exclusive native title claimed where previous non‐exclusive possession acts (PNEPAs): ss. 61A(3) and (4) Under s. 61A(3), the application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where: (a) a previous non‐exclusive possession act (see s. 23F) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23I in relation to the act.
Under s. 61A(4), s. 61A(3) does not apply if: (a) the only previous non‐exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and (b) the application states that. ss 47, 47A or 47, as the case may be, applies to it.
Result The application meets the requirement under s. 61A(3), as limited by s. 61A(4).
Reasons Schedule B at paragraph 3 states that exclusive possession is not claimed over areas covered by valid previous non‐exclusive possession acts.
Combined result for s. 190B(8) The application satisfies the condition of s. 190B(8), because it meets the requirements of s. 61A, as set out in the reasons above. Subsection 190B(9) No extinguishment etc. of claimed native title The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that: (a) a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or (b) the native titled rights an interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or (c) in any case, the native title rights and interests claimed have otherwise been extinguished, except to the extent that the extinguishment is required to be disregarded under ss. 47, 47A or 47B.
Delegate’s comments I consider each subcondition under s. 190B(9) in turn and I come to a combined result at page 46.
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Result re s. 190B(9)(a) The application satisfies the subcondition of s. 190B(9)(a).
Reasons re s. 190B(9)(a) The application at Schedule Q states that ‘The native title claim group does not claim ownership of minerals, petroleum or gas that is wholly owned by the Crown’ Result re s. 190B(9)(b) The application satisfies the subcondition of s. 190B(9)(b). Reasons re s. 190B(9)(b) The application at Schedule P states that ‘The application does not include a claim by the native title claim group to exclusive possession of all or part of an offshore place.’ Result re s. 190B(9)(c) The application satisfies the subcondition of s. 190B(9)(c). Reasons re s. 190B(9)(c) Schedule B states at paragraph 6 that ‘the area covered by the application excludes land or waters where the native title rights and interests claimed have been otherwise extinguished’. There is no information in the application or otherwise to indicate that any native title rights and/or interests in the application area have been extinguished.
Combined result for s. 190B(9) The application satisfies the condition of s. 190B(9), because it meets all of the three subconditions, as set out in the reasons above. [End of reasons]
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Attachment B Documents and information considered The following lists all documents and other information that were considered by the delegate in coming to his/her decision about whether or not to accept the application for registration. 1. Preliminary Assessment of proposed Bidjara People application, 28 May 2008. 2. The application as filed in the Federal Court on 23 July 2008, including attachments and affidavits. 3. The Tribunal’s Geospatial Services ‘Geospatial Assessment and Overlap Analysis’—GeoTrack 2008/0850, dated 26 May 2008 (the geospatial report), being an expert analysis of the external and internal boundary descriptions and mapping of the proposed application area. 4. The current geospatial report of the application as filed—GeoTrack 2008/1330 (30 July 2008), being an overlap analysis against the Register, Schedule of Applications, determinations, agreements and s. 29 notices and equivalent. 5. Reports of searches made of the Register of Native Title Claims, Federal Court Schedule of Applications, National Native Title Register and other databases to determine the existence of interests in the application area, namely, overlapping native title determination applications, s. 29 future act notices and the intersection between Bidjara People application area and any gazetted representative body regions. These reports are against the Tribunal’s databases and documented in the geospatial report. 6. Register Extract generated by the Tribunal’s Case Management System for the following applications:
• QC97/49—Bidjara 3—QUD156/98
• QC97/62—Bidjara 4—QUD169/98
• QC06/5—Karingbal 2—QUD23/06
• QC99/6—Kangoulu People 2—QUD6007/99. 7. Letter to Tribunal case manager from QSNTS, dated 14 August 2008, regarding delegation of the certification function. 8. Letter to Tribunal case manager from QSNTS, dated 26 August 2008, regarding clarification of apical ancestor as listed in Schedule A of the overlapping Karingbal 2 application.
[End of document}
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