Registration test decision
Native title determination Maduwongga People application
Applicant Marjorie May Strickland and Anne Joyce Nudding
Federal Court No. WAD90/2014
NNTT No. WC2014/002
As required by s 190A(1) of the Native Title Act 1993 (Cth) (the Act),1 I have considered the claim made in the Maduwongga People native title determination application, in accordance with s 190A, against each of the conditions contained in ss 190B and 190C of the Act. This document comprises notice to the applicant and to the Federal Court under s 190D(1) and a statement of my reasons for the decision not to accept the claim for registration, which I have made under s 190A(6B). For the purposes of ss 190D(3)(a) and (b) of the Act, my opinion is that:
The claim for registration does not satisfy all of the conditions of s 190B. In my opinion the claim does not satisfy the conditions of ss 190B(2), (5), (6) and (7).
Although the claim for registration does not satisfy the condition of s 190C(2), it was nonetheless possible to determine whether the claim satisfies all of the conditions in s 190B.
The claim for registration satisfies the conditions of ss 190B(3), (4), (8) and (9) and the conditions of ss 190C(3) and (4).
______Susan Walsh, delegate of the Native Title Registrar 21 July 2014
1 All references to legislative sections refer to the Native Title Act 1993 (Cth), as in force on the day this decision is made, unless otherwise specified.
Shared country, shared future. Introduction [1] On 17 April 2014, Marjorie May Strickland and Anne Joyce Nudding made the Maduwongga People native title determination application as an ‘applicant’ claiming to be ‘authorised’ by a ‘native title claim group’.2 The claim is on behalf of the native title claim group described in Schedule A of the application as ‘the descendants of Kitty Bluegum’. The claim relates to an area of land and waters in the Eastern Goldfields region of Western Australia.
[2] On 22 April 2014, the Registrar of Federal Court (Federal Court) provided a copy of the application and accompanying documents to the Native Title Registrar (Registrar) under s 63 of the Act, thereby triggering the duty of the Registrar under s 190A(1) to consider the claim for registration in accordance with the provisions of s 190A. Section 190A(6B) provides that the Registrar must not accept the claim for registration if it does not satisfy all of the conditions of s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters).
[3] My decision, as a delegate of the Registrar made under an instrument of delegation pursuant to s 99 of the Act dated 30 July 2013, is that the claim for registration does not satisfy all of the conditions of ss 190B and 190C. My reasons in relation to each of the conditions of ss 190B and 190C now follow.
190B Registration: conditions about merits of the claim
Section 190B(2): Identification of area subject to native title
[4] The claim does not satisfy the condition of s 190B(2).
[5] Paragraph 190B(2) provides:
The Registrar must be satisfied that the information and map contained in the application as 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 land or waters.
[6] Paragraphs 62(2)(a) and (b) provide that the application must contain the following details:
(a) information, whether by physical description or otherwise, that enables the boundaries of: (i) the area covered by the application; (ii) any areas within those boundaries that are not covered by the application ; to be identified; (b) a map showing the boundaries of the area mentioned in subparagraph (a)(i).
2 The terms ‘applicant’, ‘authorised’ and ‘native title claim group’, as they relate to a claimant application to the Federal Court under s 13(1)(a) for a determination of native title in relation to an area for which there is no approved determination of native title, are found in ss 61(1), (2) and (4) of the Act.
Page 2 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [7] In summary, I am satisfied as to the sufficiency of the details in the application that comprise a technical description of, and a map showing, the boundaries of the area covered by the application.3 I am also satisfied that part of the written description of areas within the boundaries that are not covered by the application is sufficient.4 However, the concluding paragraph 5 of Schedule B raises uncertainty in my mind as to whether the application covers an area in the northern section shown on the map in Attachment C.
Details required by ss 62(2)(a)(i) and (b) concerning boundaries of area covered by application
[8] The application contains the details required by ss 62(2)(a)(i) and (b) within Attachment B (a technical description of the boundaries of the area covered by the application, using a series of geographic coordinates) and Attachment C (a map showing the boundaries, using a bold line over a topographic overlay). This information shows that the boundaries commence at a point in the north-east of an area within the Eastern Goldfields that is proximate to Kirgella Rocks; that the boundary then travels in a generally southerly and easterly direction to a point proximate to Gnarlbine Rocks and then in a generally northerly and westerly direction to a point proximate to Mulline Rock; and that the boundary then travels in a generally easterly, then north easterly and south easterly direction back to the point of commencement. The point of commencement and boundary line is clearly shown on the map in Attachment C. The map contains geographic coordinates, a north point, scale and topographic overlay showing the towns, lakes, roads and other features. The map and technical description are consistent with each other. In my view, they together provide sufficient certainty to locate the external boundaries of the area covered by the application on the earth’s surface.
Details required by s 62(2)(a)(ii) concerning areas not covered by application
[9] I must also assess the sufficiency of the details required by paragraph 62(2)(a)(ii) for any areas within the boundaries that are not covered by the application. I shall refer to these areas as ‘the internal excluded areas’. The application contains a generic description of the internal excluded areas within paragraphs 1 to 4 of Schedule B.
[10] Paragraphs 1 and 2 employ the terminology of the Act to exclude areas within the boundaries affected by acts that have extinguished native title (e.g. ‘category A past acts’ and ‘previous exclusive possession acts, as defined in s 23B’). Paragraph 3 provides for the exclusion of any other area where native title rights and interests have been ‘wholly extinguished’. Paragraph 4 contains the proviso that where the ‘non-extinguishment principle defined in s 238 applies’ (including ss 47, 47A and 47B) to any areas affected by the extinguishment identified in paragraphs 1 to 3, such that the extinguishment must be disregarded, then the areas are included within the application area.
3 The details in Attachments B and C of the application 4 The details in paras 1 to 4 of Schedule B of the application
Page 3 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [11] Nicholson J in Daniel for the Ngaluma People & Monadee for the Injibandi People v Western Australia [1999] FCA 686 (Daniel) was satisfied that a generic description of internal excluded areas such as that contained in this application met s 62(2)(a)(ii). Lindgren J made a similar decision at [8] of Harrington-Smith on behalf of the Wongatha People v Western Australia (No 5) (2003) 197 ALR 138; [2003] FCA 218 (Harrington-Smith No 5). I note that both Daniel and Harrington-Smith No 5 considered whether a general description of internal excluded areas met s 62(2)(a)(ii), not s 190B(2). In my view, s 190B(2) may impose a more onerous standard of ‘reasonable certainty’ so that the ‘particular5 land or waters where native title rights and interests are claimed’ are capable of being ascertained. However, there are indications in Nicholson J’s reasons in Daniel that a generic exclusion could meet the test at s 190B(2), particularly where the proceedings are at an early stage and the applicant is not in possession of the facts relating to extinguishment to more particularly delineate the internal excluded areas. At [31] of Daniel, Nicholson J found: ‘Parliament has made clear that s 62 requires claimant applications to be approached with attention to "detail"’. His Honour noted the interaction between:
(a) s 62(2)(a), which requires detailed information within the application identifying the boundaries of the area and information as to areas not covered by the application
(b) s 190B(2), which requires an assessment by the Registrar of whether that information is sufficient for it to be said where the native title rights and interests are claimed within the outer boundaries
[12] In relation to ss 62(2)(a) and 190B(2), his Honour held at [32] of Daniel that:
These requirements are to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment to an application is made. Consequently a class or formula approach could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances. For example, at the time of an initial application when the applicants had no tenure information it may be a satisfactory compliance with the statutory requirement.
[13] In Strickland v Native Title Registrar (1999) 168 ALR 242; [1999] FCA 1530 at [51] to [52] (Strickland), Justice French agreed with the decision in Daniel in the context of the Registrar’s assessment of a generic description of internal excluded areas against the requirements of s 190B(2).
[14] Although these new proceedings by Ms Strickland and Ms Nudding, like the proceedings before French J in Strickland are at an early stage, I am not certain that it can be said that there has been no consideration by the applicant or its advisers about extinguishment of native title in relation to areas that fall inside the external boundary shown on the map in Attachment C.
5 Emphasis added.
Page 4 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [15] I note that this new application by Ms Strickland and Ms Nudding is the third native title claim they have brought to the Court under ss 13(1) and 61(1) and that their first claim was originally made in 1994. The State was afforded an opportunity to provide the Registrar with information relevant to whether the claim satisfied the conditions in ss 190B and 190C, but did not avail itself of that opportunity. There is no information before me from the State under s 190A(3)(c), within the application itself or in the other documents provided by the applicant under s 190A(3)(a) to indicate that the applicant is in possession of tenure information from its earlier claims which would enable the specific identification of areas within the boundaries covered by the kinds of acts described in paragraphs 1 to 4 of Schedule B. In light of this, I will follow the decision of French J in Strickland on the basis that these particular proceedings are at an early stage and there is no information that the applicant is able to describe the internal excluded areas with greater particularity. Accordingly, I find that paragraphs 1 to 4 of the description of the internal excluded areas meets the condition of s 190B(2).
[16] I do note that the applicant, when in possession of the relevant information, may need to provide specific and detailed information about the particular areas within the outer boundaries not in fact covered by the application. This is a separate requirement to that found in s 190B(2), and arises under s 62(1)(b), which requires that an application ‘must’ contain the details specified in paragraphs 62(2)(a)(ii), (c) and (d) respectively concerning:
(a) any areas within the boundaries that are not covered by the application,
(b) 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 the area covered by the application, and
(c) a description of the native title rights and interests claimed in relation to particular land or waters.
The reason the claim does not satisfy condition of s 190B(2)
[17] My ultimate decision is that the claim does not satisfy s 190B(2) because I do not understand what is intended by the final paragraph 5 of Schedule B:
(5) Notwithstanding anything contained elsewhere in this application (including the attachments to it), the Applicant excludes from the area of land and waters covered by the application those areas of land and waters that were excluded from the area of land and waters included in the original applications WAG 76 of 1997 (WC95/11), WAG 63 of 1998 (WC94/3) and WC98/20.
[18] On 6 June 2014, I obtained an extract from the Registrar’s ‘Schedule of Native Title Applications’ database for the applications referred to in paragraph 5 of Schedule B. The extract reveals that paragraph 5 refers to three native title determination applications by Ms Strickland and Ms Nudding that were later combined by order of the Federal Court into the one native title
Page 5 of 42 Maduwongga People (WAD90/2014) 21/7/2014 determination application called ‘Marjorie May Strickland & ors on behalf of the Maduwongga Peoples v The State of Western Australia (WAD76/1997)’. The extract shows that on 5 February 2007, Justice Lindgren dismissed the WAD76/1997 application to the extent that it relates to any land or waters also subject to application WAD6005/1998—see Harrington-Smith & Ors v State of Western Australia & Ors (No 9) [2007] FCA 31 (Harrington-Smith No 9).
[19] In my view, paragraph 5 of Schedule B gives rise to confusion, given the partial dismissal of application WAD76/1997. Is it the case that the new clam relates to the area covered by the partial dismissal which covers a section below the northern boundary, as appears to be identified within the technical description (Attachment B) and the map (Attachment C) showing the boundaries of the area covered by the application? Or is it the case that the new claim relates only to that area not dismissed in 2007, as appears to be identified in paragraph 5 of Schedule B?
[20] It may be that paragraph 5 is a drafting error, having been carried over from a version of Schedule B from the old application WAD76/1997. However, I am mindful that the test in s 190B(2) is whether the information in this new 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’.6 I am also mindful of the decisions in Daniel and Harrington-Smith No 5, whereby it was said that s 62(2) requires drafting with attention to detail and a degree of precision, so that the particular areas where native title rights and interests are claimed can be ascertained.7
[21] In my view, the contradictory information within para 5 of Schedule B creates a level of uncertainty that I cannot resolve on the basis of the information in the application. I am unable to say whether native title rights and interests are claimed in relation to the area of the partial dismissal. In my view, the condition of s 190B(2) ‘has requirements which do not appear to go beyond consideration of the terms of the application’8 such that clarifying this confusion via information provided separately to the Registrar under s 190A(3)(a) is not an option available to the applicant. It seems to me that Schedule B of the application requires amendment to cure the problem I have identified.
[22] It follows that I am not satisfied that the information contained in the application as required by ss 62(a) and (b) 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.
Section 190B(3): Identification of native title claim groups
[23] The claim satisfies the condition of s 190B(3).
6 Emphasis added. 7 See Nicholson J at [31] of Daniel and Lindgren J at [7]–[8] and [13] to [35] of Harrington Smith No 5. 8 See Mansfield J at [16] of Northern Territory v Doepel (2003) 133 FCR 112; (2003) 203 ALR 385; [2003] FCA 1384 (NT v Doepel).
Page 6 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [24] Paragraph 190B(3) provides:
(3) The Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application; or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
[25] Although the persons in the native title claim group are not named under para (a), a description of those persons under para (b) is found in Schedule A. The description is that the persons in the native title claim group are ‘the descendants of Kitty Bluegum’.
[26] In my view, a description which relies on descent from a named apical ancestor or ancestors may provide a reasonably clear mechanism, so that it can be ascertained whether any particular person is in the native title claim group—see, for example, the description approved by Carr J in Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 at [63] to [69] (Western Australia v Registrar).
[27] I note also the decision by Carr J in Ward v Registrar, National Native Title Tribunal (1999) 168 ALR 242; [1999] FCA 1732 (Ward v Registrar). His Honour found that the task for the Registrar under s 190B(3)(b) is ‘largely one of degree with a substantial factual element’.9 His Honour agreed with the Registrar that identifying descent from traditional owners for the area at the time of sovereignty as a criterion for membership of the claim group, without naming the traditional owners, was problematic in that case, particularly where there was:
(a) information about a dispute as to the authority of the applicant, and
(b) no means within the claim group description itself to resolve questions about who was or was not entitled to authorise the applicant, as a member of the native title claim group (see ss 61(1) and (4)).
[28] In addition to the fact that Kitty Bluegum is at the apex of the claim group’s genealogy, it appears from the applicant’s information that the task of ascertaining her descendants and thus the members of the claim group will not pose these kinds of evidentiary difficulties. The anthropologist Norman Tindale noted that Kitty was 60 years old in 1939 when he recorded her genealogy. Kitty died in 1945. Her descendants thus span a considerably shorter period of time than considered in Ward v Registrar. Working out who is or is not a descendant of Kitty, should not pose the kind of difficulties for descendants to be ascertained from unnamed ancestors alive at the time of sovereignty. In fact, the identity of the grandchildren, great-grandchildren and great-great grandchildren of Kitty has been researched and well known, as is evidenced by a comprehensive genealogy report provided by the applicant in an affidavit that accompanies the application.10
9 Ward v Registrar at [27]. 10 See Annexure F to affidavit by Ms Strickland made on 6 October 2013 and filed in the Court on 17 April 2014.
Page 7 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [29] I thus conclude that the information in Schedule A contains a sufficiently clear description, such that it can be ascertained whether any particular person is in the native title claim group, as required by s 190B(3)(b).
190B(4) Identification of claimed native title
[30] The claim satisfies the condition of s 190B(4).
[31] Paragraph 190B(4) provides:
The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
[32] Paragraph 62(2)(d) provides that the application must contain:
a description of the native title rights and interests claimed in relation to particular land or 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 title rights and interests that may exist, or that have not been extinguished, at law.
[33] The description of the claimed native title rights and interests in Schedule E of the application identifies a claim to a bundle of rights:
(a) of an exclusive or controlling character (such as a right of possession, occupation, use and enjoyment) and a bundle of other ‘non-exclusive’ rights related to the claim group’s use and enjoyment of the land and waters (such as to hunt, fish, gather, camp and be present there). The ‘exclusive’ rights are claimed over areas where there has been no extinguishment; any such extinguishment must be disregarded under the Act or the non-extinguishment principle set out in s 238 otherwise applies (titled ‘Area A rights’)
(b) related to the claim group’s use and enjoyment of the land and waters, such as to hunt, fish, gather, camp and be present there (titled ‘Area B rights’).
[34] In my view, there is no infringement of s 62(2)(d). Each item in the bundles of Area A and B rights is comprehensively and particularly described, such that the description does ‘not merely [consist] of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.’
[35] Schedule E concludes with a statement that the rights held by the native title claim group, in accordance with traditional laws acknowledged by them and traditional customs observed by them, although subject to the rights and interests of others comprise the items listed at paras (a) to (i). These final rights include the right to speak for the area, to be asked permission to use the area, to make decisions, to live there, to hunt and gather there, to use and enjoy its resources, to
Page 8 of 42 Maduwongga People (WAD90/2014) 21/7/2014 control the access to activities by others on the area, to maintain and protect culturally significant areas and to engage in ceremonial and other cultural activities on the area.
[36] At first blush, this final part of Schedule E does not sit comfortably with the rest of the description. However, it seems to me that any confusion engendered falls short of the claimed rights not being able to be readily identified under s 190B(4). It seems to me that this part of Schedule E speaks to the rights asserted to be held under traditional law and custom but for acts of the new sovereign power that extinguished rights. When I read the entirety of Schedule E, together with the definitions for ‘Area A’ and ‘Area B’ at the start of the application, it is clear to me that controlling or exclusive rights listed under ‘Area A rights’ or itemised at paras (a) to (i) at the end of Schedule E, are only claimed in relation to areas where has been no extinguishment; any such extinguishment must be disregarded under the Act or the non-extinguishment principle set out in s 238 otherwise applies.
[37] Paragraphs 1 to 4 of Schedule B add further clarity to the description by identifying that any areas covered by the extinguishment provisions of the Act are excluded from the application area. In my view, the final part of Schedule E is not inconsistent with the framing of the claimed rights and the areas to which they relate, as described.
[38] I am also mindful that Mansfield J did not disagree with the characterisation of the test at s 190B(4) as one which requires the Registrar to consider ‘whether the claimed native title rights and interests are understandable and have meaning’—NT v Doepel at [99]. In my view, this is a relatively low bar, particularly when I consider the overall statutory context in which s 190B(4) sits. In my view, the Registrar considers issues concerning extinguishment of any items in the bundle of rights at s 190B(6). The Registrar then considers if the application infringes s 61A in relation to any areas that should not be included within the boundaries covered by the application at s 190B(8). My reasons below consider both of the conditions in these latter parts of s 190B.
[39] It follows that I am satisfied that the description is sufficient to allow the native title rights and interests claimed to be readily identified, as required by s 190B(4).
190B(5) Factual basis for claimed native title
[40] The claim does not satisfy the condition of s 190B(5).
[41] Paragraph 190B(5) provides:
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
Page 9 of 42 Maduwongga People (WAD90/2014) 21/7/2014 (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 interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
[42] Following Mansfield J at [17] of NT v Doepel, I understand that my assessment is to ‘address the quality of the asserted factual basis for [the] 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.’ I understand that it ‘is not for the Registrar 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’.11
[43] By way of summary, I am of the opinion that:
(a) although there is a sufficient factual basis for the assertion that the native title claim group have an association with the area, the factual basis is not sufficient to support an assertion that their predecessors had an association with the area (the second part of the assertion found in s 190B(5)(a));
(b) the factual basis is not sufficient to support the assertion 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 interests (the assertion of s 190B(5)(b)); and
(c) the factual basis is not sufficient to support the assertion that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs (the assertion of s 190B(5)(c)).
[44] Mansfield J approved the Registrar’s focus on each of the three particular assertions, when considering s 190B(5) overall. In his Honour’s view, if the claim did not provide a sufficient factual basis for each one, it would follow that the factual basis was likewise insufficient to support the general assertion that the claimed native title rights and interests exist within the head of s 190B(5).12 Having regard to my opinion that the factual basis is not sufficient to support each assertion, it follows that I am not satisfied that the claim satisfies the condition of s 190B(5) overall. Information considered
[45] I am of the view that the general description of the factual basis in the application, as required by s 62(2)(e) is not sufficient of itself to support the assertions of s 190B(5) (I explain my
11 Approved by a Full Court of the Federal Court (French, Moore and Lindgren JJ) in Gudjala People No 2 v Native Title Registrar (2008) 171 FCR 317 [2008] FCAFC 157 at [83] to [85] (Gudjala FC). 12 NT v Doepel at [130].
Page 10 of 42 Maduwongga People (WAD90/2014) 21/7/2014 reasons for the condition in s 190C(2), set out below). The condition of s 190B(5) does permit me to ‘consider information additional to that contained in the application, including documents (other than the application) provided by an applicant: see s 190A(3)(a)’.13 I have thus considered the information contained in Ms Strickland’s affidavit dated 6 October 2013.
[46] For the condition of s 190B(5), I have turned my mind to the following elements of the claim contained in the application:
(a) The outer boundaries of the area (see the map in Attachment C) over which native title rights and interests are asserted to exist, namely, an area of land and waters in the Eastern Goldfields region of Western Australia, of which approximately two thirds lies to the east and north of Kalgoorlie.
(b) The items in the bundle of claimed rights (see Schedule E). These include rights to exclusively possess, occupy, use and enjoy those areas where no prior extinguishment or any extinguishment must be disregarded (defined as ‘Area A’). In relation to areas where exclusive rights of this nature are extinguished (defined as ‘Area B’), the rights claimed relate to use and enjoyment of the area and its resources, for example, to hunt, gather, fish, camp, live, move about, hold ceremonies, to teach about their land and to protect its significant places.
(c) The identity of the native title claim group (see Schedule A) said to possess these rights and interests under the traditional laws acknowledged, and the traditional customs observed, by them. This is the Maduwongga People native title claim group and they are defined via descent from a single apical ancestor, Kitty Bluegum. Kitty Bluegum’s birth is estimated to have been 1879 and she died in 1945.
[47] I note that Ms Strickland and Ms Nudding,14 (as the two persons comprising the applicant) have each made an affidavit accompanying the application under s 62(1)(a), in which they affirm that the statements made in the application are true. In this regard, I refer to the observation of the Full Court that:
Indeed, there is no reason to doubt that this statutory scheme contemplates that it would be open to the Registrar to accept an application based on the application, including the accompanying affidavit, without having regard to other information of the type referred to in s 190A(3). Accordingly, the statutory scheme appears to proceed on the basis that the application and accompanying affidavit, if they, in combination, address fully and comprehensively all the matters specified in s 62, might provide sufficient information to enable the Registrar to be satisfied about all matters referred to in s 190B—Gudjala FC at [90] (underlining added).
13 See Gudjala FC at [90] and see also NT v Doepel at [16]. 14 Where the context permits, my reasons from this point refer to Ms Strickland and Ms Nudding as ‘the claimants’, as this is how they are referred to in the factual basis materials. Otherwise, I shall call them ‘the applicant’ or, if discussed individually, by their names.
Page 11 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [48] The factual basis is found principally in two reports by [Anthropologist 1] (an anthropologist and ethno-historian) dated June 2012 and by [Anthropologist 2] (an anthropologist) dated August 1998. The reports are annexed to an affidavit by Ms Strickland dated 12 June 2012,15 in which she states:
(a) [Anthropologist 1] was engaged to review the basis for the claim contained in the Strickland/Nudding native title determination application16;
(b) ‘The content of the report [by Anthropologist 1] is consistent with my knowledge passed down to me from my ancestors’;
(c) ‘I confirm the facts which she attributes to me in her report’;
(d) ‘[Anthropologist 1]’s ethno-historical research, which she reports on, confirms my view, based on my traditional knowledge, that the claim group is a separately identifiable claim group connected to the whole of the area claimed and that my ancestors were connected to the whole of the claim area’;
(e) ‘[Anthropologist 1] comes to the view that the group is separate from, though connected to the Western Desert Cultural Bloc’;
(f) ‘The factual basis for that view is consistent with facts I learnt from my ancestors’;
(g) ‘[Anthropologist 1]’s view regarding the relationship between the Strickland/Nudding or Maduwongga group and the Western Desert Cultural Bloc differs from that of [Anthropologist 2], who provided a report for an earlier claim’ 17.
[49] Ms Strickland refers to the above statements in her earlier affidavit of 12 June 2012 and says at para 21 of her most recent affidavit dated 6 October 2013 that ‘I now reaffirm the truth of the evidence which I gave in that affidavit’.
[50] I note finally that I have considered the genealogy report prepared by Ms Strickland which lists claim group members in each generation since that of their apical ancestor, Kitty Bluegum.18
190B(5)(a)
[51] Although I am satisfied that the factual basis is sufficient to support an assertion that the native title claim group has an association with the area, I am not satisfied that the factual basis is
15 See Annexure G to the affidavit by Ms Strickland made on 6 October 2013 and filed in the Court on 17 April 2014. 16 This refers to application WAD301/2010, made on 14 October 2010 and dismissed by the Court on 3 July 2013. 17 See paras 5 to 10 of Ms Strickland’s affidavit dated 12 June 2012 within Annexure G of Ms Strickland’s affidavit dated 6 October 2013. A copy of the earlier report of [Anthropologist 2] referred to by Ms Strickland is provided as Annexure ‘MMS2’ to her affidavit dated 12 June 2012 and a copy of the report by [Anthropologist 1] is provided as Annexure ‘MMS1’. 18 See Annexure F of her affidavit made on 6 October 2013 and filed on 17 April 2014.
Page 12 of 42 Maduwongga People (WAD90/2014) 21/7/2014 sufficient to support an assertion that the predecessors of those persons had an association with the area.
Current association
[52] I start firstly by considering the general description of the factual basis for this assertion in Schedule F of the application:19
(i) the native title claim group have an association with the area based on traditional laws which they acknowledge and traditional customs which they observe;
[53] In my view, this is a mere restatement of the assertion of s 190B(5) and does not provide anything of substance for me to consider. However, this is ameliorated by what is said in Schedules G and M of the application in relation to current association by the native title claim group with the area, the truth of which is affirmed by the claimants in the affidavits that accompany the application. This lends support to the factual basis for the assertion of current association. There is information in Schedules G and M20 that the members of the native title claim group:
(a) currently carry out a range of activities over a wide-spread range of places within or proximate to the outer bounds of the application area, such as seasonal hunting and gathering and visiting rock-holes, women’s sites, camps and ceremonial grounds. These activities occur in places such as Southern Kalgoorlie/Coolgardie, Ora Banda, Canegrass Swamp, Mulgabbie (near Lake Rebecca), Kirgella Rock Hole, Boulder on the Jaudi Hill Road and Menzies. These details are provided in Schedule G; and
(b) on a regular basis throughout their lifetimes, have travelled across the application area, camping and hunting and gathering the traditional foods and medicines and visiting the places of significance about which they have been taught by their ancestors. These details are found in Schedule M, which goes on to provide a list of the same activities as that in Schedule G.
[54] The reports by [Anthropologist 1] and [Anthropologist 2] address the factual basis for the assertion that the native title claim group have an association with the area and provide further substance to the assertions in Schedules G and M on this topic. The reports provide information that chronicles the life histories of the claimants and those in the generation above them, as relates to places within the application area.21 In my view, the information I have considered is overall sufficient to support an assertion that the persons in the native title claim group have an association with the area.
19 See s 62(2)(e)(i) considered by the Full Court at [90]–[92] of Gudjala FC. 20 The truth of these statements is affirmed by the claimants in their accompanying affidavits under s 62(1)(a), which they made on 6 October 2013 and filed in the Court on 17 April 2014. 21 See Section 5 of [Anthropologist 2]’s report, including Tables 5.1 to 5.4 on p. 92 to 94.
Page 13 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [55] The information principally addresses the association of the claimants with the area and that of their immediate forebears: their father Arthur Newland and their aunties, Violet Morrison (nee Quinn), Eva Forrest (nee Quinn) and Lena Judd. Arthur, Violet and Eva were Kitty’s biological children. Lena was close in age to Eva, reared by Kitty as her own child and regarded as an Aunty to the claimants. Only Violet and Arthur went on to have children of her own. Their offspring in the generations since are documented within the genealogy report provided in Ms Strickland’s current affidavit.22
[56] Eva and Violet were the children of the group’s apical ancestor, Kitty Bluegum, from a relationship with Jack Quinn, a mining prospector from Mulgabbie in the north-east of the application area. Eva was born in 1900 in Menzies (outside of and a short distance from the north- west boundaries). Violet was born in 1902 in Kalgoorlie (in the south-western reaches of the application area). Lena Judd’s parentage is not known (she may have been the child of a brother or sister to Kitty, about whom little is known, beyond their names, Jimmy and Minnie). Kitty’s third child, Arthur Newland was born in 1910 in Kanowna, from a relationship with ‘Edjudina’ pastoral station owner, Walter ‘Watts’ Newland. Kanowna is in the south-west of the application area, north of Kalgoorlie.
[57] The information passed to the claimants, from their father Arthur Newland, is that their grandmother was an Aboriginal woman called Kitty. There is independent verification of this from genealogies obtained by Norman Tindale in 1939 as a result of his interview or interviews with Kitty. These genealogies contain notes by Tindale that Kitty was:
(a) ‘fb’ (Tindale’s shorthand for the Aboriginal persons he interviewed who were full blood, i.e. they did not have European parentage)
(b) 60 years old in 1939 when the genealogies were prepared
(c) her children were Eva, Violet and Arthur
(d) ‘of Edjudina’ (in the north-east of the application area)
(e) the daughter of the ‘full blood’ Aboriginal man, Johnny, also ‘of Edjudina’
(f) a sibling of two other children fathered by Johnny, namely Jimmy and Minnie.23
[58] In my view, the factual basis materials speak in sufficient detail about the descendants of Kitty Bluegum having an association with the area, particularly when I consider the information in Schedules G and M of the application and the life histories of the persons in the claim group presented in the reports by [Anthropologist 1] and [Anthropologist 2]. In my view, the persons
22 See Annexure F to the affidavit by Ms Strickland dated 6/10/2013 accompanying the application filed on 17 April 2014. 23 See the copy of Tindale’s Genealogical Sheet 110 provided at p. 115 of [Anthropologist 2]’s report.
Page 14 of 42 Maduwongga People (WAD90/2014) 21/7/2014 discussed and the places named speak of an association by the native title claim group as a whole and that is of a sufficiently broad compass in relation to the whole area.
[59] In this regard, I refer to the following details which speak to an association with:
(a) Edjudina station in the northeast, where Kitty and her children lived and worked for Walter Newland, the father of Kitty’s son Arthur Newland
(b) Kalgoorlie and Kanowna in the south-west, where Violet and Arthur were born
(c) Menzies (just outside the application area) where Eva was born
(d) Pinjin Station in the northeast (a station run by Walter’s brother, Simpson Newland, where Arthur spent time as a boy in the care of Simpson and then again as an adult, working on the station)
(e) Menangina (a station run by the Newlands, also in the north-east of the application area)
(f) Bulong Station, Coolgardie, Yarri, Ora Banda, Coolgardie and Kurrawong (where the claimants’ father Arthur Newland and their mother Lallie Akbar lived and worked on pastoral stations, at the Coolgardie Battery and at occupations such as dogging, collecting sandalwood, prospecting and labouring)
(g) with Kalgoorlie (where claim group members have lived over the years and are now buried) and Boulder (where many in the claim group now live).
[60] There is information that the claimants grew up with their parents and travelled extensively in the area as children. Travelling with their parents allowed the claimants to learn about their country and how to hunt and gather food. They camped in the bush. They moved to live with their Aunty Eva in Kalgoorlie so that they could go to high school. Even when living in town, they spent time in the bush and grew up with extensive experience of the bush, camping with their parents and other family members. Ms Nudding reports going out bush every weekend. They would go out hunting kangaroo, emu, goanna and wild goats. They learnt how to dig bardis and track animals. They would sit down and tell stories about old things that went on.24 Copies of photographs of the hunting activities by members of the claim group during the 1970s and 1980s are found in the report by [Anthropologist 2].25
[61] I note also that the claimants went on two field trips in late 1997 and a hunting trip in January 1998, with the researchers who prepared the report by [Anthropologist 2], where they visited places of importance to the claimants and their families, including the ruins of Pinjin
24 See p. 73 of the report by [Anthropologist 2]. 25 See plates 27 and 29 to 32.
Page 15 of 42 Maduwongga People (WAD90/2014) 21/7/2014 station, their parents’ houses in Ora Banda and Dunnsville, the sites of rock holes and places where they hunted goanna, kangaroo and bush turkey, including the claypan south of Menzies.26
[62] Having regard to this information, I am of the opinion that the factual basis is sufficient to support an assertion that the native title claim group have an association with the area.
Predecessors’ association with the area
[63] Starting firstly with the general description of the factual basis for this part of the assertion of s 190B(5)(a) in the application, Schedule F states:
(ii) the predecessors of the native title claim group had an association with the area from a time prior to the assertion of British sovereignty in relation to the area;
[64] In my view, this is a mere restatement of the assertion in s 190B(5)(a) concerning association by the group’s predecessors and does not provide anything of substance for me to consider. It is also my view that this statement fails to provide the level of information required by s 62(2)(e)(i), the implications of which are considered in my reasons below for the procedural condition in s 190C(2).27 In my view, the information in Schedules G and M does not speak in any detail about the association by the predecessors of the native title claim group with the area and does not assist in relation to this part of s 190B(5)(a), so does not remedy the problem with this part of the factual basis description. However, as explained at [45] above, s 190B(5) does not confine me to the details required to be contained in the application under s 62(2)(e) and I have thus turned to the information in the reports by [Anthropologist 1] and [Anthropologist 2].28
[65] Whereas the report by [Anthropologist 1] was prepared for the claimants’ second native title claim made in 2010, the report by [Anthropologist 2] dated August 1998 relates to their first native title claim.29 [Anthropologist 2]’s opinion is that the traditional laws and customs of the claimants are those of the Western Desert society, with which [Anthropologist 1] does not agree. Nonetheless, it appears to me that the report by [Anthropologist 2] provides factual information to address the asserted association by the predecessors of the claim group with the area, in a way that can be seen independently of the case that they acknowledged and observed Western Desert laws and customs. I note also that the factual information set out in the Report by [Anthropologist 2] concerning association by the claim group’s predecessors is adopted by [Anthropologist 1]. Although I have considered the information in the report by [Anthropologist 2], I have not drawn any adverse conclusions in relation to it, insofar as it is premised on a case that the claimants observe and acknowledge the laws and customs of a Western Desert society or societies. I do this
26 The places visited are depicted on the diagrams at Figures 1.3, 1.4 and 2.9 and the photographs in Plates 20 to 26 and 28 of the report by [Anthropologist 2]. 27 See the decision of Kiefel J in State of Queensland v Hutchison (2001) 108 FCR 575; [2001] FCA 416 (Hutchison) at [17] and [18]. 28 NT v Doepel at [16] and Gudjala FC at [90] 29 This was the WAD76/1997 Marjorie May Strickland & Anor v The State of Western Australia & Others (Maduwongga People) native title determination application.
Page 16 of 42 Maduwongga People (WAD90/2014) 21/7/2014 in light of Justice Mansfield’s instruction from [17] of NT v Doepel that I must accept the truth of the factual basis provided in this new application.
[66] Sovereignty for the State of Western Australia is 1829. However, the applicant asserts that sustained contact between the settlers and the Aboriginal peoples who belonged in the region did not take place until some decades later, from about the early to mid 1890s.30 The predecessors of the native title claim group known to have been alive at the time of sustained contact are the group’s apical ancestor, Kitty Bluegum, her father Johnny and her siblings Jimmy and Minnie. The assertion is that these predecessors had an association with the whole of the area covered by the application at and before sustained contact and it is an available inference that the situation before sovereignty in 1829 would not have been materially different.
[67] The claimants say that their parents, their Aunties and other relatives told them that their predecessors were associated with the whole area. They say that this is independently verified by information found in the genealogies,31 contemporaneous field journal entries and a map produced by Norman Tindale in 1940 and again in 1974,32 as a result of interviews in 1939 with their apical ancestor Kitty Bluegum, her son Arthur Newland, Kitty’s partner Tommy Bluegum, Norah Kunda33, Albert Newland34 and Dora Quinn (a child of Jack Quinn35 and Lily Sullivan).
[68] Tindale’s map provides an illustration of Maduwongga tribal boundaries and the first of Tindale’s genealogies contains a note next to Kitty’s name that says, ‘Madu ‘wongga’.36 Tindale was the first anthropologist to identify the traditional owners of the Kalgoorlie Goldfields as Maduwongga—[Anthropologist 1], p. 29. The claimants assert that Tindale’s map matches their own understanding of Maduwongga boundaries, except for a strip of country from Lake Raeside (in the east) to Londonderry (in the south-west) that is not shown on Tindale’s map. The claimants assert that they identified this strip of land during a boundary run in 1997 with
30 An entry by Tindale in his field journal (1938–39) refers to the first gold rush of the area taking place in the middle 1890s; see [Anthropologist 2] p. 17. On p. 43–44 of her report, [Anthropologist 1] refers to the account by James Edward Tregurtha travelling to Kurnalpi (in the south-east of application area) in 1893 when he met a local Aboriginal man, aged around 60, whom Tregurtha called Jacky. 31 Genealogical Sheets 110, 118 and 173, copies of which are provided on p. 43–45 of the report by [Anthropologist 2]. The persons from whom Tindale collected information and who were anthropomorphically measured and photographed by Birdsell are discussed on p. 40–41 and listed in Table 3.1 on p. 41 of [Anthropologist 1]’s report. 32 See Tindale, N. 1940 Results of the Harvard-Adelaide Universities Anthropological Expedition 1938–1939: Distribution of Australian Aboriginal Tribes: a field survey. (Transactions of the Royal Society of South Australia). 46(1): 140–231 and Tindale, N. 1974 Aboriginal Tribes of Australia: Their terrain, environmental controls, distribution, limits and proper names. 33 Tindale records on Sheet 110 that Norah Kundah was Arthur Newland’s third wife, although this is not a fact known to the claimants. [Anthropologist 2] notes that it is possible that the couple were not married and it was a short-term relationship only—see p. 49 of his report. 34 Arthur Newland’s adopted or foster child— see [Anthropologist 2], p. 48 35 The father of Kitty’s two older daughters, Eva and Violet Quinn. 36 See genealogy sheet 110 on p. 43 of the report by [Anthropologist 2].
Page 17 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [Anthropologist 2].37 [Anthropologist 2] stated in his report that these ‘areas have now been covered by an additional Maduwongga claim (WC98/20).’38
[69] On the basis of Kitty Bluegum’s age of 60 in 1939 when Tindale interviewed her,39 it is asserted that she must have been born around 1879 or 1880, which was after sovereignty (1829), but before sustained contact in the area from the early to mid 1890s. Tindale’s genealogy sheet 110 identifies that Kitty’s father, Johnny, was a ‘full blood’ Aboriginal man of Edjudina (as was Kitty) and that he had two other children, Jimmy and Minnie. Ms Strickland reports that she was not aware that her great-grandfather was a man called Johnny, nor that Kitty had siblings called Jimmy and Minnie before she discovered Tindale’s genealogical sheet 110 during a visit to the South Australian museum in 1993.40
[70] Edjudina, the place noted by Tindale for Kitty and Johnny, lies in the north-east of the application area. [Anthropologist 1] provides information to the effect that Johnny’s status as the father of Kitty and his association with Edjudina has since been verified by another independent account obtained by the claimants from Walter Newland’s son, [name removed]. [Name removed] talked to the claimants before passing away in [date of death removed] about his father and the Aboriginal people who had lived and worked at his pastoral stations. According to [name removed], Walter Newland met Johnny in Coolgardie (in the south-west of the application area) where Walter was working on a water condenser during the gold rush. Gilly told the claimants that Johnny later guided Walter to ‘Edjudina soaks, a vast tract of land formerly classed as a reserve and still unoccupied by Europeans.’ Walter was granted the first lease in that area in 1902 and Johnny became his right-hand man.41
[71] Based on Kitty’s age of 60 in 1939, it is asserted that her father Johnny would have been born around 1859 or earlier, and thus a grown man at the time of sustained contact in the early to mid 1890s. It is not known if Johnny’s other two children, Jimmy and Minnie (noted by Tindale on genealogical sheet 110) were older or younger than Kitty, but it is believed that one of them was the parent of Lena Judd, who was reared by Kitty and of a similar age as Kitty’s eldest child Eva, who was born in 1900.
[72] [Anthropologist 2] argues that the note by Tindale on genealogy sheet 110 that Kitty and Johnny were from Edjudina indicates that this was their birthplace, particularly in light of Tindale stressing that he asked this of informants, as birthplace was a key factor in determining tribal membership and relationship to country. This, according to [Anthropologist 2], when read with Kitty and Johnny’s estimated birth dates of 1879 and 1859 respectively,42 ‘firmly places at least this Maduwongga family within the country Tindale (1940; 1974) defined as Maduwongga’ in the
37 See p. 4 for the details of the field research trips undertaken by [Anthropologist 2] and his researcher with the claimants. 38 See [Anthropologist 2], p. 14. 39 The note made by Tindale on the genealogical sheets made in 1939 is that Kitty was 60 years old at this time. 40 [Anthropologist 2], p. 47 & [Anthropologist 1], p. 55 41 [Anthropologist 1], p. 71-72 42 This is based on Kitty being 60 years old when Tindale interviewed her in 1939.
Page 18 of 42 Maduwongga People (WAD90/2014) 21/7/2014 period before sustained contact. [Anthropologist 2] notes that ‘it is of course possible that other relatives could have migrated from ‘spinifex country’ and married into the Maduwongga group previously.’43
[73] It is the case that Tindale’s map of Maduwongga tribal boundaries replicates a large portion of the area covered by the application. However, as I have already noted Tindale’s map does not include a strip of land along the south-eastern boundary (this is the area which was the subject of an earlier claim by the native title claim group in 1998 (WA6237/1998) that was later combined into native title application WAD76/1997). Apart from Pinjin in the north, there is nothing in any of the information before me that discusses in any detail the asserted association by Kitty, Johnny, Jimmy or Minnie with this area. The area stretches along most of the southern boundaries for the application area. I say with the exception of Pinjin because Tindale does conclude in 1939 that Pinjin is associated with the Maduwongga (see [77] below).
[74] It is my opinion that the information provided in the reports by [Anthropologist 1] and [Anthropologist 2] does not provide a sufficient factual basis for an assertion that the predecessors of the native title claim group had an association with the whole of the area covered by the application.44 At best, it is my opinion that the information is only supportive of an assertion that the predecessors had an association with the northerly and easterly reaches of the application area around Edjudina, extending south and southwest to Pinjin and Kanowna respectively.
[75] I understand that it is not a requirement that the claim address the asserted association by the predecessors with every single place within the outer boundaries of the application area, nor is it a requirement that the factual basis address an association with the area by all claim group members at all times since before sovereignty, or at least since the time English settlers came into sustained contact with Indigenous peoples of an area. Nonetheless, very general assertions and/or significant gaps as to:
(a) an association with the whole area covered by an application
(b) an association over the whole period since sovereignty or sustained contact tells against the overall sufficiency of the factual basis for this part of the assertion of s 190B(5)(b).45
43 The quotes in this paragraph of my reasons are from [Anthropologist 2]’s report at p. 18–19. 44 I refer to the recent decision by Siopis J in Corunna v Native Title Registrar [2013] FCA 372 at [39] to [45] that the factual basis must address in sufficient detail the basis for the assertion that the association is with the whole of the area. 45 For these propositions, I refer to Martin v Native Title Registrar [2001] FCA 16 (French J) at [24]–[26] (Martin); Corunna v Native Title Registrar [2013] FCA 372 (Siopis J) at [31], [37], [39] and [45] (Corunna); Gudjala FC at [92]– [96]; Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Dowsett J) at [52] (Gudjala 2007) [with which the Full Court in Gudjala FC did not disagree] and Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Dowsett J) at [29] (Gudjala 2009).
Page 19 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [76] In this case, the factual basis does not in my view address in sufficient detail an asserted association by the group’s predecessors with some significant parts of the area covered by the application.
[77] I refer firstly to the handwritten note by Tindale on genealogy sheet 118 for Kitty: ‘Madu wongga. Linden, Mulline, Pinjin, Kanowna and nearly to Menzies. Came from East. See also sheet 110.’46 There is also this note by Tindale in his 1938-39 field journals:
The Maduwongga are around Kanowna, extending to Pinjin, Linden in the north occasionally to Murrin Murrin and nearly to Menzies (recently). They originally came from the spinifex country to the east of the present location. They drifted in at the time of the first gold rush (middle 1890s).’47
[78] I note the statement in the report by [Anthropologist 1] that Tindale’s informants for the genealogies that he produced and his later commentary concerning the Maduwongga were Arthur Newland, Kitty Bluegum and Kitty’s common law husband, Tommy Bluegum, from the Nullarbor Plain. Tindale interviewed these persons at Southern Cross and Mount Margaret in 1939.48 Given that the notes appear on the genealogies and also in the field journal used by Tindale in 1938–39, it is reasonable to infer that they were made at a relatively contemporaneous time to his interviews with Kitty Bluegum, Arthur Newland and Tommy Bluegum. An issue that arises in relation to Tindale’s journal entry in 1939 that the Maduwongga were originally from Spinifex county to the east of the present location and drifted in during the first gold rush, is whether they give substance to Tindale’s later commentary in his 1974 publication about the Maduwongga that ‘statements suggest a protohistoric movement from the east displacing Kalamaia people west to beyond Bullabulling’.49
[79] [Anthropologist 2] argues that these statements relate merely to the fact that Kitty and Johnny are from the easterly reaches of the Maduwongga tribal area mapped by Tindale, around Edjudina.50 In my view, this is nonetheless problematic for a sufficient factual basis for the assertion that the group’s predecessors had an association with the whole of the area. I say this because the application covers quite a large area (approximately 27,794 sq km) and an association by the group’s apical ancestor Kitty and her father Johnny around Edjudina in the north-east falls far short of showing a sufficient factual basis for an assertion that the predecessors of the native title claim group had an association with the whole area covered by the application.
[80] Another issue that arises for me is that Tindale’s contemporaneous notes may refer to a smaller range of country than was subsequently identified in his 1940 and 1974 maps for the Maduwongga tribe. In this regard, [Anthropologist 2] refers to Tindale’s single reference to the Maduwongga in his 1938–39 field journal: ‘The Maduwongga are around Kanowna, extending to
46 [Anthropologist 2], Figure 3.2, p. 44 47 [Anthropologist 2], top of p. 17 48 [Anthropologist 1], p. 39 49 Tindale (1974:246), discussed at p. 16 of the report by [Anthropologist 2]. 50 [Anthropologist 2], p. 16 to 26
Page 20 of 42 Maduwongga People (WAD90/2014) 21/7/2014 Pinjin, Linden in the north occasionally to Murrin Murrin and nearly to Menzies’.51 Additionally, Genealogy sheet 118 (which features Kitty and her partner Tommy Bluegum) contains Tindale’s handwritten note: ‘Madu wongga. Linden, Mulline, Pinjin, Kanowna & nearly to Menzies. Came from East. see no sheet 110’.52 These notes refer to country to the north of the northern boundary, such as Linden and Murrin Murrin, down to Mulline and Menzies. Linden is some distance to the north of the northern-eastern boundary of the application area.
[81] Tindale’s notes indicate that Pinjin is a place where the Maduwongga had an association. Pinjin lies within the north of the strip of country outside Tindale’s southern boundary, proximate to Edjudina, in the north-east of the application area. Like Edjudina, Pinjin was a pastoral station run by Arthur’s father Walter Newland and his brother Simpson. Arthur spent time on Pinjin Station as a boy, under the care of Simpson Newland. It is also the case that the father of Kitty’s children Eva and Violet, Jack Quinn, was a prospector with a shack at Mulgabbie Hill, adjacent to Pinjin and Edjudina stations, also in the north east of the application area.53 [Anthropologist 2] reports that the claimants’ ‘father’s kin group had a strong association, including employment, with Edjudina and Pinjin stations. These stations and the area around Mulgabbie Hill were significant to the claimants’ father and remain so for the family today.’54 On p. 89, [Anthropologist 2] reports that Native Welfare files place Kitty at Withnells at Edjudina in 1925, where she lived with her daughters, Eva and Violet, son-in-law Norman Forrest and grandchildren Teddy and Gertie.
[82] This information, when considered with Tindale’s contemporaneous notes, lends support to an assertion that the predecessors of the native title claim group had an association in the north- east of the application area, around Edjudina and Pinjin and Mulgabbie, which continued in the generations after Kitty. However, this is a part only of the overall area covered by the application. However, it is my view that Tindale’s notes, whilst they suggest an association by the claimants’ predecessors as far south-west as Kanowna, they do not speak in any detail about their association with areas or places to the north and west thereof.
[83] Tindale refers to Kanowna as a place associated with the Maduwongga.55 Kanowna lies to the south-west of Edjudina and Pinjin, to the north of Kalgoorlie. It is the place where Kitty gave birth to the claimants’ father, Arthur Newland, in 1910. When read with Tindale’s notes of his interviews with her, this lends support to an assertion that Kitty had an association which stretched west of Edjudina and Pinjin to Kanowna where Arthur was born. It may be inferred that her association with this place stretched back in time to the settlement era of the 1890s. However, an association by Kitty from Edjudina to Kanowna still encompasses a part only of the overall area covered by the application.
51 [Anthropologist 2], p. 17 52 A copy of sheet 118 is found at figure 3.2 on p. 44 of the report by [Anthropologist 2]. 53 [Anthropologist 2], p. 48 54 [Anthropologist 2], p. 48 and see also p. 71. 55 A copy of sheet 118 is found at figure 3.2 on p. 44 of the report by [Anthropologist 2].
Page 21 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [84] The journal entry by Tindale that the Maduwongga ‘are around Kanowna, extending to Pinjin, Linden in the north occasionally to Murrin Murrin and nearly to Menzies (recently)’56 is not in, my view, helpful. I say this because some of these areas, i.e. Linden, Murrin Murrin and Menzies, fall outside the northern boundary of the area covered by the application. There is also the note ‘recently’, at the end of the journal entry, which could be interpreted that Tindale was told or he interpreted his Maduwongga informants as telling him that their association with these places was of recent origin, at least with the country ‘nearly to Menzies’ and thus did not predate the arrival of the settlers in the early to mid 1890s. Even if Tindale’s notes support an association with country from Kanowna in the south to Menzies in the north, there are still tracts of country west of a line from Kanowna to Menzies, for which there is no information to support an assertion that the predecessors of the native title claim group had an association there.
[85] The lack of any specific details about Johnny and Kitty’s asserted association with areas between Kanowna and Menzies (i.e. in the western reaches of the application area) should also be considered in light of information provided to Tindale by a Kalamaia informant, Don Roundhead and his wife, Noona or Nuna. [Anthropologist 2] reports that Tindale interviewed them in 1939 and then again in 1966. The 1966 interview took place at Kalgoorlie. Tindale’s journal entry57 following the 1966 interview was that both Don and Nuna claimed that Don’s father’s father’s [a Kalamaia man] country was located around Kanowna, Ora Banda, Callion, Davyhurst and Goongarrie.58 These places are all in the west of the application area, for which there is no detailed information to support that the group’s predecessors, Kitty and Johnny, had an association.
[86] [Anthropologist 2] reports that Tindale made this journal entry following the 1966 interviews with the Roundheads: ‘It is possible therefore that the Kala: maia boundary of my map [1940] should be placed a little further to the south-east ...’59 [Anthropologist 2] is of the view that no weight should be attached to this because Tindale’s 1974 map did not move the boundary. [Anthropologist 2] argues ‘the evidence for a major westward movement of the Kalamaia [because of the Maduwongga or others moving in from the east] is also weak’.60 The analysis for reaching this opinion appears on p. 19 to 26 of [Anthropologist 2]’s report. In summary, [Anthropologist 2] does not agree with some researchers that the Kalamaia were originally from places within the western section of the area covered by the Maduwongga application. Further, [Anthropologist 2] does not agree that the information given to Tindale by Kalamaia informants that they originated from places that lie inside the western boundary of the Maduwongga application area should be interpreted in favour of the Kalamaia belonging there in the classical period (i.e. before the settlers arrived in force). From what I can discern, [Anthropologist 2] relies principally on the fact that the comments in Tindale’s contemporaneous notes on the subject are
56 Underlining added 57 Tindale, N. 1966 MS: Journal of a trip to Western Australia in search of tribal data, discussed in [Anthropologist 2], p. 25. 58 [Anthropologist 2], p. 25 59 [Anthropologist 2], p. 26 60 [Anthropologist 2] p. 19
Page 22 of 42 Maduwongga People (WAD90/2014) 21/7/2014 only tentative and at the end of the day, his 1974 map did not shift the boundary drawn in 1940 between the Maduwongga and the Kalamaia.
[87] The point I make is that Tindale spoke to Kalamaia informants in 1939 (presumably around a similar time that he spoke to Kitty and others who informed his genealogical entries for her and her kin) and then again in 1966. These Kalamaia informants identified Kalamaia places in the westerly reaches of the Maduwongga application area. These places are found in that part of the application area north and west of Kanowna for which there is no detailed information to support an assertion that the predecessors of the Maduwongga claim group had an association there at the time of sustained contact in the early to mid 1890s.
[88] I am of the view that the analysis by [Anthropologist 2], which relies so heavily on Tindale’s map, coupled with what the claimants have reported to him as the information passed to them about the boundaries of their country from their father, falls short of providing a sufficient factual basis for the assertion that the predecessors of the native title claim group had an association with the whole area in the period from sovereignty, or at least from the time of sustained contact/settlement in the early to mid 1890s.
[89] Nothing appears to be known about the association of the only other known predecessors of the native title claim group with the area, namely Kitty’s siblings, Jimmy and Minnie. [Anthropologist 1] says in her report that Tindale made a note for Jimmy on genealogy sheet 110 that he was of ‘Coolgardie or Karonie’. Coolgardie lies further to the west than Kanowna, south of Kalgoorlie. Karonie is outside the southern boundary of the application area. The information recorded by Tindale about places associated with Jimmy does not in my view assist in providing a sufficient factual basis for the assertion that the predecessors of the claim group had an association with the whole of the area.
[90] For the reasons I have outlined, it is my view that the best that can be said in relation to the asserted factual basis is that it is sufficient to support an assertion that the predecessors of the native title claim group had an association with the north easterly parts of the application area and that it may have extended as far south-west as Kanowna and north to Menzies, Mulline and beyond. It appears that the association was particularly strong around Edjudina in the north-east, where Johnny and Kitty are understood to have been born and where Johnny, Kitty and her family lived and worked for the Newland family in the first decades of the 20th century. In my view, Tindale’s 1940 and 1974 map of the Maduwongga tribal boundaries and the passing of information in the generation after Kitty to the current claimants that their country encompasses all that is shown on the map in Attachment C is not, in the face of the other information I have considered above, sufficient to support an assertion that the predecessors of the native title claim group had an association with the whole of the area at and before the arrival of the settlers in the early to mid 1890s.
[91] I note that the report by [Anthropologist 1] relies on the same information as that found in the report by [Anthropologist 2] concerning an association by the predecessors of the native title claim group with the area. It does not, in my view, assist to provide a sufficient factual basis for
Page 23 of 42 Maduwongga People (WAD90/2014) 21/7/2014 the assertion that the predecessors of the native title claim group had an association beyond the areas discussed above. In fact it appears to show that the predecessors of the claim group were, at the time of settlement in the early to mid 1890s, a local descent group with a particular association around Edjudina. I consider this further in my reasons below for the assertion of s 190B(5)(b).
190B(5)(b)
[92] I am not satisfied that the factual basis is sufficient to support an assertion 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 interests.
[93] I have considered the information in the reports by [Anthropologist 2] and [Anthropologist 1]. I have also considered what is said on this topic in paragraphs (iii) and (iv) of Schedule F:
(iii) the native title rights and interests are possessed under a body of traditional laws acknowledged and traditional customs observed by the native title claim group and their predecessors; (iv) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs, including laws and customs which vest land and waters in the claim group on the basis of: (a) descent from ancestors connected with the area; (b) conception in the area; (c) birth in the area; (d) traditional religious knowledge of the area; (e) traditional knowledge of the creation and geography of the area; (f) traditional knowledge of the resources of the area; and (g) knowledge of and participation in traditional ceremonies and rituals associated with the area.
[94] The central problem with the factual basis for this assertion, even when read with the information contained in the reports by [Anthropologist 2] and [Anthropologist 1], is that it does not demonstrate how the claimed native title rights and interests asserted to exist in relation to the area covered by the application arise from the acknowledgement and observance by the native title claim group of ‘traditional’ laws and customs.
[95] The High Court decided in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta) that for rights and interests in relation to land or waters to be possessed under ‘traditional’ laws and customs currently acknowledged and observed, they must have their source in a pre–sovereignty society and have been acknowledged and observed since that time, or at least since settlement, by a society that has had a continuous vitality and substantially uninterrupted existence.
[96] The importance of the decision of Yorta Yorta in framing what a sufficient factual basis must address was discussed by Dowsett J at [26], [62] to [66] of Gudjala 2007. Although Justice Dowsett’s evaluation of the factual basis materials was criticised, the Full Court did not express
Page 24 of 42 Maduwongga People (WAD90/2014) 21/7/2014 disagreement with his Honour’s analysis of what a sufficient factual basis for the assertion of s 190B(5)(b) must address— see Gudjala FC at [71]–[72] and [96].
[97] Additionally, Dowsett J observed at [39] of Gudjala 2007 that s 190B(5) requires a factual basis sufficient to support an assertion that the native title claim group identified in an application (in this case the descendants of Kitty Bluegum) are entitled to the identified native title rights and interests (in this case the bundle of rights asserted to exist within the area encompassed by the boundaries shown on the map in Attachment C). In relation to what is meant by ‘identified native title rights and interests’, Justice Dowsett observed at [40] and [41] of Gudjala 2007 that a description of the alleged factual basis must demonstrate the ‘relationship between the claim group and the relevant land and waters’ over which the identified native title rights and interests are claimed. This analysis by Dowsett J was not criticised by the Full Court—see Gudjala FC at [68].
[98] I am of the view that at the heart of the insufficiency of the factual basis for the assertion of s 190B(5)(b) is the information presented in both of the reports by [Anthropologist 2] and [Anthropologist 1] to the effect that the society in the area at sovereignty, or at least when settlement took place in the early to mid 1890s, probably observed laws and customs whereby local descent groups exercised rights in relation to particular estate areas. It is their case that Kitty Bluegum and her known relatives (her father Johnny and siblings Jimmy and Minnie) may have belonged to such a local descent group with rights and interests in the north-east of the application area around Edjudina.
[99] Both [Anthropologist 2] and [Anthropologist 1] rely heavily on the work of Tindale to support the extent of the Maduwongga application area, which largely matches that shown in Tindale’s 1940 and 1974 map of Aboriginal tribal boundaries. Having said that, [Anthropologist 2] does say that ‘Tindale’s research work, suffers from the same general deficiency Sutton (1995) sees in Davis’ work, namely the absence of mapping necessary for an understanding of Aboriginal land-holding and boundaries’—p. 11. Whilst praising Tindale’s map of tribal boundaries and the anthropological expedition in the late 1930s which informed it as providing ‘invaluable data concerning the relationship of individuals and families to land and the genealogical connections between Aboriginal people in particular areas’ including the Eastern Goldfields, [Anthropologist 2] concedes that:
The notion of ‘tribe’ or its cognate concepts – language group or socio-dialectal group, may be anthropologically problematic with respect to land ownership in what Sutton (1995, nd) refers to as classical Aboriginal societies61 but they have clearly become central to Aboriginal ideology and social organisation in post-colonial or post-classical settings. The pre-existing category of language group has often become the dominant form of traditional land affiliation62—p. 11.
61 Endnote 5 on p. 127 of [Anthropologist 2]’s report notes that Sutton uses the terms classical and post-classical in place of the more usual terms traditional and contemporary or urban/rural because as he notes (nd:7, footnote 7) “contemporary urban and rural Aboriginal people also have traditions.” 62 Emphasis in original
Page 25 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [100] [Anthropologist 2] cites Sutton (1995:47)63 for the proposition that a consequence of the impact of the colonial period for Aboriginal Australia has been the rapid rise of the language group as a communal land-owning group identity and in some places heavily impacted by the colonial era, ‘a decline, often a complete extinction, of the finer grained forms of classical Aboriginal landholding entities such as clans and estates’—at pp. 11, 12.
[101] [Anthropologist 2] provides his opinion that the available ethnographic, linguistic, historical and toponymic data firmly supports the positioning of the Maduwongga in the country broadly delineated by Tindale—at p. 27. [Anthropologist 2] states that ‘the evidence with regard to the traditional or classical social organisation of the Maduwongga is less certain.’ I understand that the reference here to ‘traditional or classical social organisation’ refers to the relevant Aboriginal society that was operating in the application area prior to sovereignty in 1829 or at least when the settlers entered the region in the early to mid 1890s.
[102] I reiterate again at this point that I have not drawn inferences adverse to the newly asserted factual basis because of [Anthropologist 2]’s thesis that the relevant traditional laws and customs giving rise to asserted native title rights and interests in the area arise from the operation of Western Desert traditional laws and customs. Nonetheless, there is information in the report by [Anthropologist 2] which is relevant both to the new claim and the assertion of s 190B(5)(b). This point is in fact made by [Anthropologist 1], who states that her report is ‘intended to complement’64 [Anthropologist 2]’s report. [Anthropologist 1] also states that she accepts the testimony of [Anthropologist 2] ‘as regards location of sites, its literature review, and much of its linguistic and ethnographic discussion’.65
[103] The problem with the report by [Anthropologist 2] is that the uncertainty expressed therein about the content of the laws and customs which were operating in the area before the settlers arrived is not resolved within the report by [Anthropologist 1]. In fact that uncertainty is fleshed out in some detail by [Anthropologist 1], to whose report I now turn.
[104] [Anthropologist 1] agrees: (a) with Tindale’s characterisation of the Maduwongga as a separate tribal entity, as articulated in Tindale’s writings and map of tribal boundaries.66 (b) that the eastern line drawn by Tindale for the Maduwongga tribal area represented the boundary between the Maduwongga and their Western Desert ‘Waljen’ neighbours.
(c) that both Berndt67 and Tindale accurately ‘placed the boundaries of the Western Desert societies west of the Laverton area, between Maduwongga and Waljen.’
63 See the reference on p. 124 of [Anthropologist 2]’s report to Sutton, P. 1995 Country: Aboriginal boundaries and land ownership in Australia. Aboriginal History Monograph 3, Aboriginal History: Canberra 64 [Anthropologist 1], p. 2 65 [Anthropologist 1], p. 5 66 [Anthropologist 1], p. 29
Page 26 of 42 Maduwongga People (WAD90/2014) 21/7/2014 (d) with Berndt and Tindale not classing the Maduwongga with either the Western Desert Bloc or with individual groups or tribes within that Bloc.68
[105] [Anthropologist 1] concludes that the claim group is connected in an incidental way to Western Desert society or societies insofar as Arthur Newland (Kitty’s son and the claimants’ father) married Lallie Akbar, a Waljen (Western Desert) woman, the mother of the claimants:
The connections between the Maduwongga and the Western Desert people were incidental, not structural. The Maduwongga should not be grouped with the Western Desert Cultural Bloc. Claimants have rights to the Western Desert society through the ties obtained from their Waljen mother. However, they identify with their tribal country: their father’s traditional estate, the country of their local descent group; the country where they and their predecessors were conceived and/or born, and where they and their predecessors have resided most of their lives — in accordance with the general principles of law and customs found in Aboriginal societies. I conclude that the Claimants identify with their tribal country in accordance with Maduwongga law and customs as those currently exist and more than likely also in accordance with the laws and customs that held in that country before British Sovereignty. The Nudding/Strickland group69 are a bona fide society, with distinct social and territorial claims from their neighbours: Waljen, Ngurly, Kalamaia and Kalaago.70
[106] [Anthropologist 1] is of the opinion that Tindale’s concept of the “tribe” being the land owning entity in pre-sovereignty Aboriginal societies applied to the Eastern Goldfields region before the settlers arrived.71 [Anthropologist 1] accepts that in pre-sovereignty/pre-settlement or ‘classical’ times, the laws and customs governing land ownership in the Eastern Goldfields depended on rules and inter-relationships between ‘local descent groups’, who were ‘political units’ and ‘subgroups of the tribe’. [Anthropologist 1] explores these matters in Section One of her report. [Anthropologist 1] states that in classical or traditional times, ‘the customs and laws giving rise to land ownership, social cohesion and intertribal relations in classical societies were multifaceted, based in ecological knowledge, totemic belief and ritual, reciprocal relations, marriage, conception and birth, and communication’—at p. 11. [Anthropologist 1] concedes that these rules do not now operate as they did in the classical or pre-sovereignty period:
... in the contemporary context of the WA Goldfields, customary rights in the land are vested in descent, knowledge of the land, traditional transmission of knowledge, and the physical association with the land. The partial loss or willing abandonment of ritual and belief diminishes the inter-tribal political status of traditional owners but it does not diminish their customary rights in their traditional (ancestral) territories.72
67 See Berndt, R.M. 1966 ‘The concept of “the Tribe” in the Western Desert of Australia’, the full citation for which is found in the bibliography on p. 102 of the report by [Anthropologist 1]. 68 [Anthropologist 1], p. 30 69 In an addendum to her report dated 9 September 2013 (Annexure J to Ms Strickland’s affidavit dated 6/10/13), [Anthropologist 1] accepts that a description of the native title claim group as the descendants of Ms Strickland and Ms Nudding only is wrong, it being the case that the native title claim group are the descendants of Ms Strickland and Ms Nudding paternal grandmother, Kitty Bluegum. 70 [Anthropologist 1], p. 37 71 See, for example, the summary of her views within the table on p. 11 of her report. 72 See p. 11 of her report.
Page 27 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [107] [Anthropologist 1] discusses a basic agreement or acknowledgement amongst all anthropologists that:
(a) ‘there existed in traditional Aboriginal society larger groups whose members were self-identifying, who identified with a common territory, whose social organisation was based in kinship relations.’ [Anthropologist 1] concludes that it is reasonable to call this ‘larger linguistic, territorial and social unit a tribe, as Tindale did’;
(b) ‘in the more arid regions of Australia (which encompass the Claim Area), the political unit, and the basic social and economic unit was not73 the tribe but the local descent group and the family group’;
(c) ‘the smaller family groups may have travelled together for hunting and foraging (as a horde) and that although the members of a tribe may have gathered for larger ceremonies, there was no overall tribal organisation with the capacity to organise large scale political events such as warfare’;
(d) ‘in much of Western Australia, smaller family groups engaged socially, ceremonially, economically and politically not only with their own “tribal unit” but also with neighbouring groups through multi-lingual proficiency, inter-marriage, common initiation rites, common totemic beliefs and ceremonies’;
(e) ‘group identity was and is profoundly vested in territorial ownership (what Aboriginal informants today call “Country”)’—at p. 13.
[108] [Anthropologist 1] does acknowledge different views amongst anthropologists as to how territorial ownership attaches to the land itself, discussed at p. 13–14. For the Goldfields in general and the Maduwongga in particular, [Anthropologist 1] prefers the Tindale model of territorial ownership74 existing at the higher level of the tribe, rather than at the social or political level of the local descent group, family group or subgroup.
[109] [Anthropologist 1] undertakes a review of the ethnographic and historical record for her conclusion that in pre-sovereignty times and at settlement, the relevant laws and customs governing land ownership existed on the basis of the tribe being the land owning unit in relation to the whole of the area covered by the application. I am of the view that the information she provides does not provide a sufficient factual basis to support her conclusions, as they relate to the native title claim group for the area of this application.
[110] I refer firstly to p. 29 of the report by [Anthropologist 1] which discusses the work of Daisy Bates and her identification of several groups attached to various parts of the application area.
73 Emphasis in original 74 What is now defined as ‘native title’ or ‘native title rights and interests’ in s 223(1) being ‘the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters’, where the conditions set out in paragraphs 223(1)(a), (b) and (c) apply.
Page 28 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [Anthropologist 1] notes that [Anthropologist 2] explains in his report that the groups observed by Bates were in fact ‘local descent groups’ or ‘tribal subgroups’. It is also noted that Bates had confused and mistranslated the nomenclature. Nonetheless, it appears to be accepted by [Anthropologist 1] and [Anthropologist 2] that the work of Bates from 1904–1912 does contribute to an understanding of Eastern Goldfields ethnography, including her identification of places in the western reaches of the application area as being associated with local descent groups or tribal subgroups.75
[111] Like [Anthropologist 2], [Anthropologist 1] relies heavily on the positioning by Tindale of Maduwongga tribal boundaries. [Anthropologist 1] says that there is no doubt that people who called themselves Maduwongga lived in a territory in the region of the claim area (p. 40). She agrees with [Anthropologist 2’s] analysis that Tindale’s notes concerning the original provenance of the Maduwongga do not justify a conclusion that their country lay to the east of the position shown on Tindale’s map (p. 40). [Anthropologist 1] notes that Tindale’s hypothesis regarding a Maduwongga westward movement which displaced Kalamaia was ‘largely prompted by the Claimants’ predecessors’ assertion that their people came from the east, and also likely motivated by the contemporary interest in migration theories, an interest that would persist ... well into the 1960s’—at p. 40.
[112] [Anthropologist 1] argues that Tindale’s hypothesis concerning a westward migration of the Maduwongga at or after the gold rush years of the 1890s must be considered in light of the fact that the claimant’s apical ancestor told Tindale that she and her father were born in Edjudina in the north-east of the application area—at p. 40). [Anthropologist 1] argues that:
... all of Tindale’s evidence places the person he calls Maduwongga in Maduwongga country ... and in fact, there is a simpler explanation at hand as to why Arthur Newland’s people, Kitty and Johnny, “came from the east”. Edjudina was Kitty and her father Johnny’s birthplaces, and more than likely, it was also Johnny’s estate. In other words, Arthur Newland’s local descent group came from the east of Maduwongga country—at p. 41.
[113] This is a common refrain throughout the report by [Anthropologist 1] (and indeed the report by [Anthropologist 2]) that the particular area or country within the overall Maduwongga tribal area with which the claim group have a connection is that of their father’s local descent group in the east around Edjudina. Although [Anthropologist 1] does present information from the early record to say that territorial boundaries between the Kalamaia, Kalaago and Maduwongga (as mapped by Tindale) were ‘firmly established at the onset of the gold rush’, what she does not do is present information that links Johnny and Kitty’s local descent group with the whole of the area covered by the application. I am also of the view that the accounts to which she refers do not provide a sufficient factual basis to support an assertion that these
75 See also p. 14–15 of [Anthropologist 2]’s report.
Page 29 of 42 Maduwongga People (WAD90/2014) 21/7/2014 accounts relate to action under law and custom operating in the area whereby there was a wider Maduwongga territorial owning entity in relation for the whole application area.
[114] The first account is of the prospector Uren. Uren describes in his memoir (published in 1953) how his party’s native tracker became restless when the party arrived from the west at Gnarlbine rockhole (the south-westerly most point of the application boundary) However, it is hard to see how it can be inferred that this relates to the territory of the claim group’s local descent group, who were positioned, on the best available evidence, much further to the east than Gnarlbine rockhole.76
[115] Another contemporaneous account said to support the factual basis is discussed on p. 43–44 of the report by [Anthropologist 1]. This is the account of the prospector or explorer, James Edward Tegurtha, travelling to Kurnalpi in 1893 when he met a local Aboriginal man, Jacky, aged around 60 years. Tregurtha and Jack travelled east towards Kurnalpi (just outside a point located in the east of Tindale’s southern boundary). When they reached Carr Boyd’s rockhole, Jacky refused to go further as his tribal district did not go beyond this point. Tregurtha recounts that when Jacky was a lad, he had travelled as far north as Mount Margaret and west to Yilgarn but that ‘it would be courting trouble for a grown man to go into another tribal district unless on some special occasion’ (p. 43). Tregurtha describes Jacky’s tribal territory as having ‘extended from Carr Boyd’s Rock-hole … to about ten miles south of Bulong, west to Gnarlbine and north to somewhere near Siberia, and east to Carr Boyd’s Rock-hole … taking in the swamp west of Coongarrie.’77
[116] [Anthropologist 1] states at p. 44 that this account allows the following inferences:
(a) If Jacky was about 60 years old in 1893 and had travelled as far north as Mount Margaret and as far west as Yilgarn, this would have taken him into neighbouring Waljen and Kalamaia country in the 1840s, which would fit with expected customary inter-tribal relationships between the Maduwongga and their neighbours in the mid 19th century (i.e. the ‘classical’ or pre-sovereignty laws and customs).
(b) That a grown man needed a special occasion to travel safely out of his district confirms that tribal boundaries were crossed according to established protocols, as also appeared from Uren’s account of the his guide’s restlessness at Gnarlbine rockhole.
(c) The boundaries of Jacky’s tribal district roughly corresponds to the western half of the application area, yet this of itself should not establish that Carr Boyd rockhole divided Kitty’s ‘country’ from that of Jacky’s. [Anthropologist 1] says that the
76 See the discussion of this on p. 42 of the report by [Anthropologist 1]. 77 See report by [Anthropologist 1], p. 44, citing Tregurtha, J.E. 1996 Leaves from a Prospector’s Diary, Hesperian Press: Victoria Park.
Page 30 of 42 Maduwongga People (WAD90/2014) 21/7/2014 ‘discrepancies regarding the tribal boundaries provided by Jacky in 1893/94 and Kitty in 1939 are not irreconcilable [for] the tribe “always consists of a number of smaller units, usually attached to certain localities within its overall territory”.’ For this quote, [Anthropologist 1] cites Berndt, 1964: 41. [Anthropologist 1] concludes that Jacky’s tribal district corresponded to the area attached to his ‘patrilocal descent group, birthplace, his estate78’, not to his entire tribal territory. [Anthropologist 1] concludes that Jacky’s district was in the west in the same vein as Arthur Newland’s people came from the East’—at p. 44.
[117] [Anthropologist 1] relies also on the account given by Tregurtha of Jacky guiding him some months later in 1894 to the best waterholes in the area of Broad Arrow. It is said by [Anthropologist 1] that as Jacky was still without a wife and feared no tribal retribution it can be inferred that this area also forms part of his estate (Broad Arrow would appear in any event to fall within Jacky’s ‘tribal district’, as described above by Tregurtha).
[118] Finally, [Anthropologist 1] recounts an article in the Kalgoorlie Western Argus in 1898 relating the journey of a revenge party whose home was in Edjudina, travelling from Kurnalpi to Broad Arrow and onwards by train to Menzies, to kill an Aboriginal guide, whose good relations with the miners and good health was held as proof of the sorcery that had caused devastation and death among Aboriginal people during a typhoid epidemic. It is said by [Anthropologist 1] that this shows, as do the accounts concerning Jacky, that ‘in 1898, the eastern region of the Claim Area was the ‘locus of traditional politics and tribal resistance, and that traditional violence came from the east, as it had threatened Jacky in 1893’—at p. 46.
[119] These facts do point to the existence in the 1890s of the operation of law and custom that appear to be rooted in a pre-sovereignty or classical society. However none of the accounts talk about the Aboriginal persons having a ‘Maduwongga’ identity that relates to the whole application area, nor do they stipulate that there was a tribal entity whose bounds matched that found on Tindale’s map, produced some 40 to 50 years later.
[120] Neither [Anthropologist 1] (nor [Anthropologist 2] for that matter) explain how Arthur’s local descent group with an estate around the country where his mother and grandfather were born in the easterly reaches of the application area translates into rights and interests in the whole application area. I accept as correct, as is asserted by [Anthropologist 1] on p. 46, that ‘the country which Mrs Nudding and Mrs Strickland claim as their own is their father’s, for this is where they lived, and where their parents taught them, because also the primary focus of one’s identification with the land is with the ritual estate – that is “father’s country”’. However, on the best available evidence the rights which Arthur inherited related only to the country of Johnny and Kitty’s local descent group. There is nothing in any of the material to support an assertion that the laws and
78 Original emphasis.
Page 31 of 42 Maduwongga People (WAD90/2014) 21/7/2014 customs chronicled above permit a local descent group, such as that to which Johnny and Kitty belonged, to enter or traverse without permission the estate of a neighbouring local descent group, such as that belonging to Jacky’s group, whose country started at Kurnalpi, well to the west of Edjudina.
[121] To conclude, the problem with [Anthropologist 1]’s thesis lies not in distinguishing the area covered by the application from a Western Desert society or societies to the east of the line drawn on Tindale’s map. For the reasons outlined above, I am of the view that the explanation provided by [Anthropologist 1] as to the asserted content of the laws and customs said to have been acknowledged and observed by the traditional or classical Maduwongga society (i.e. the one operating in the area before sovereignty or at least when the settlers arrived) does not fit with the laws and customs said now to be acknowledged and observed by the native title claim group. This is to be compared with what was observed by the settlers, namely, local Aboriginal people did not want, and in one instance refused, to cross the boundaries where their country ended and having permission or a special reason to traverse these boundaries was an accepted way of negotiating and travelling across areas covered by this application. It is also telling that both [Anthropologist 2] and [Anthropologist 1] discuss in their reports that the laws and customs governing land ownership in classical or pre-sovereignty times were heavily dependent on a political and social network at the local descent group or estate level and the concession by both anthropologists that this was largely destroyed after settlement of the Easetern Goldfields region.
[122] It follows that I am not satisfied that the factual basis is sufficient to support the assertion of s 190B(5)(b).
190B(5)(c)
[123] I am not satisfied that the factual basis is sufficient to support the assertion of paragraph 190B(5)(c).
[124] Dowsett J found that s 190B(5)(c) requires the following information:
(a) that there was a society that existed at sovereignty that observed traditional laws and customs from which the identified existing laws and customs were derived and were traditionally passed to the current claim group;
(b) that there has been continuity in the observance of traditional law and custom going back to sovereignty or at least European settlement—Gudjala 2007 at [82].79
[125] Paragraph 190B(5)(c) requires the Registrar to be satisfied that the factual basis is sufficient to support the assertion ‘that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs’ (underlining added). Justice French observed at [29] of Martin that this is ‘plainly a reference to the traditional laws and customs
79 This analysis was not criticised by the Full Court at [77] of Gudjala FC.
Page 32 of 42 Maduwongga People (WAD90/2014) 21/7/2014 which answer the description set out in par (b) of s 190B(5)’. His Honour observed that it ‘followed from [the Registrar’s] conclusion in relation to [para (b)] that he could not be satisfied that there was a factual basis set out for the assertion referred to in par (c).’.
[126] Although there is information about the laws and customs which operated at the time of settlement and those that are said to now be acknowledged and observed, my opinion, explained above is that the factual basis is not sufficient to support an assertion that the current laws and customs are ‘traditional’, in the sense of being derived from the laws and customs of a pre- sovereignty society and have continued to be acknowledged and observed in a substantially uninterrupted way.
[127] In my view, it follows from my conclusions in relation to paragraph 190B(5)(b) that I cannot be satisfied that there is a sufficient factual basis for the assertion in par 190B(5)(c)—see Martin at [29].
190B(6) Prima facie case
[128] The claim does not satisfy the condition of s 190B(6).
[129] Paragraph 190B(6) provides:
The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).
[130] In the absence of a sufficient factual basis to support the assertions set out in s 190B(5)(a)- (c), it must follow that I cannot consider that, prima facie, at least some of the native title rights and interests can be established. That an application not satisfying the merit condition at s 190B(5) must also fail to satisfy s 190B(6) is supported by the decision in Gudjala 2007 at [87]. This aspect of the decision was not disturbed on appeal to the Full Court in Gudjala FC. I refer also to [84] of Gudjala 2009 where Dowsett J observed that if s 190B(5) is not met, then it must follow that s 190B(6) is also not met. Most recently, Siopis J at [26] of Corunna followed a similar course and did not disturb the Tribunal’s reconsideration of a claim under s 190E that not satisfying the condition of s 190B(5) flowed on to a similar opinion for the condition of s 190B(6).
190B(7) Physical connection
[131] The claim does not satisfy the condition of s 190B(7).
Page 33 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [132] Paragraph 190B(7) provides:
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 have been expected currently to 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 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.
[133] Dowsett J found in Gudjala 2007 that to satisfy this condition there must be material to satisfy the Registrar that:
... the relevant connection was in accordance with laws and customs of the group having their origin in pre-contact society. This seems to be consistent with the approach taken in Yorta Yorta—at [89].
[134] Dowsett J indicated that an application which fails to satisfy the requirements of s 190B(5) will likewise fail this condition due to the requirement for material showing a ‘traditional physical connection.’ This aspect of the decision was not disturbed on appeal to the Full Court. I refer also to Gudjala 2009 that:
As to s 190B(7), much may depend upon the meaning of the term “traditional physical connection”. I have not been referred to any authority on the point. It seems likely that such connection must be in exercise of a right or interest in land or waters held pursuant to traditional laws and customs. For the reasons which I have given, the requirements of that subsection are not satisfied.—at [84].
[135] In my view, the phrase ‘traditional’ physical connection means a physical connection in accordance with the particular traditional laws and customs relevant to the native title claim group, with ‘traditional’ having the meaning discussed in Yorta Yorta.
[136] The claim must therefore fail this condition as a result of my finding that it does not satisfy s 190B(5)(b) and (c).
190B(8) No failure to comply with s 61A
[137] The claim satisfies the condition of s 190B(8).
[138] Paragraph 190B(8) provides:
The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non exclusive possession acts), the application should not have been made.
Page 34 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [139] Subsection 61A provides:
(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. (2) If: (a) a previous exclusive possession act (see section 23B) was done in relation to an area; 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 provision as mentioned in section 23E in relation to the act; a claimant application must not be made that covers any of the area. (3) If: (a) a previous non exclusive possession act (see section 23F) was done in relation to an area; 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 provision as mentioned in section 23I in relation to the act; a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others. (4) However, subsection (2) or (3) does not apply to an application if: (a) the only previous exclusive possession act or previous non exclusive possession act concerned 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 section 47, 47A or 47B, as the case may be, applies to it.
61A(1): No claim to areas covered by determinations of native title
[140] There are no determinations of native title in relation to the area covered by the application. For this reason, I am satisfied that the application does not offend s 61A(1).
61A(2): No claim to areas covered by previous exclusive possession acts
[141] Schedule B of the Form 1 stipulates that any areas within the boundaries where a previous exclusive possession act was done, is excluded, except where the non-extinguishment principle (as defined in s 238) applies, including any area to which ss 47, 47A and 47B apply. As the acts described in s 61A(2) are expressly excluded, I am satisfied that the application does not offend this part of s 61A.
61A(3): No claim to areas covered by previous non-exclusive possession acts
[142] Schedule E of the application states that native title rights and interests conferring possession, occupation, use and enjoyment to the exclusion of all others are only claimed in
Page 35 of 42 Maduwongga People (WAD90/2014) 21/7/2014 relation to ‘Area A’, which is defined at the outset of the Form 1 to comprise areas of unallocated Crown land that have not been previously subject to any grant by the Crown; areas to which ss 47, 47A and 47B of the Act apply, other areas to which the non-extinguishment principle of s 238 of the Act applies and in relation to areas where there has been no prior extinguishment of native title. As the claimed rights and interests do not include exclusive possession over areas covered by previous non-exclusive possession acts, I am satisfied that the application does not offend s 61A(3).
190B(9) No extinguishment etc. of claimed native title
[143] The claim satisfies the condition of s 190B(9).
[144] Paragraph 190B(9) provides:
The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (a) to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas; or (b) to the extent that the native title rights and interests claimed relate to waters in an offshore place—those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place; 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 subsection 47(2), 47A(2) or 47B(2)).
[145] Schedule Q states that no claim is made to any minerals, petroleum or gas owned by the Crown. In my view, this express statement satisfies s 190B(9)(a).
[146] The application area is located well inland from the coast and the claimed native title rights and interests do not, therefore, relate to waters in an offshore place. The claim thus satisfies s 190B(9)(b).
[147] The application and accompanying documents do not disclose, and I am not otherwise aware that, the native title rights and interests claimed have otherwise been extinguished. The claim satisfies s 190B(9)(c).
190C Registration: conditions about procedural and other matters
190C(2) Information etc. required by sections 61 and 62
[148] The claim does not satisfy the condition of s 190C(2).
[149] Paragraph 190C(2) provides:
Page 36 of 42 Maduwongga People (WAD90/2014) 21/7/2014 The Registrar 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.
Where the claim provides the details and other information required by ss 61 and 62
[150] The Table below sets out the details and other information contained in the application that, in my view, meets the requirements outlined in ss 61 and 62 and my reasons for so finding:
Sections 61 and 62 Reasons
s61(1) Applications that may be Item (1) of the table to s 61(1) provides that a native title made determination application, for a determination of native title under s 13(1), may be made by ‘a person or persons authorised by all 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’. These details are provided in Part A, 1 & 2 and in Schedules A and R of the application. I note that whether or not the applicant is, in fact, authorised cannot be determined by the Court until it is determined that there are persons holding the particular native title claimed— see Harrington-Smith (No 9) at [1186]- [1193]. I note also that that a consideration of the claim against the condition of s 190C(2) does not, in the ordinary course, permit the Registrar to undertake any merit of qualitative assessment of the details required by s 61(1). The limited circumstances which may permit the Registrar to assess the details were considered by Mansfield J in NT v Doepel. In my view, those circumstances do not arise in this case as there is nothing on the face of the application to indicate that ‘not all the persons in the native title claim group were included, or that it was in fact a sub-group of the native title claim group’—at [36].
s61(3) Applicant’s name and See Part A-1 and Part B of the Form 1 respectively for the address statement of the applicant’s name and address for service
s61(4) Applications authorised Section 61(4) provides that a ‘native title determination by persons application that persons in a native title claim group authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons’.
Page 37 of 42 Maduwongga People (WAD90/2014) 21/7/2014 Schedule A contains a description of the persons in the native title claim group. Dowsett J held in Gudjala 2007 that the task at s 190C(2) in relation to s 61(4) is merely to assess that the persons are named or a description provided and whether those details are sufficient is the task of the corresponding merit condition in s 190B(3)— at [31] and [32]. s62(2)(a)(i) & (ii) Information The required details are found in Schedule B, Attachment B about the boundaries of the area and a map showing the boundaries is provided in covered by the application and Attachment C. any areas within those I refer to my reasons above for s 190B(2) that the information boundaries not covered and map contained in the application as required by ss 62(a) s62(2)(b) Map of the boundaries and (b) is not sufficient for it to be said with reasonable of the area covered certainty whether native title rights and interests are claimed in relation to particular land or waters.
Notwithstanding my assessment of the information for the purposes of the merit condition of s 190B(2), it is nonetheless my view that the claim satisfies s 190C(2) in relation to the requirements of ss 62(2)(a) and (b). I say this because of my view that all that is required of me under s 190C(2) is to check that the application contains the details/information stipulated in ss 62(2)(a) and (b); it is not to assess the sufficiency of the information. That is the task under the corresponding merit condition of s 190B(2). s62(2)(c) Searches of non-native Attachment D contains a table listing the details and results title rights and interests of searches undertaken to determine the existence of non- native title rights and interests in relation to the application area. s62(2)(d) Description of the Schedule E contains a description of the claimed native title native title rights and interests rights and interests. See my reasons above at s 190B(4) which claimed in relation to particular analyses the adequacy of the description and finds it be land or waters (including any sufficient to allow the rights claimed to be readily identified. activities in exercise of those It follows in my view, for the reasons outlined above, that the rights and interests), but not description does not consist of a statement to the effect that merely consisting of a statement the native title rights and interests are all native title rights to the effect that the native title and interests that may exist, or that have not been rights and interests are all native extinguished, at law. title rights and interests that may exist, or that have not been extinguished, at law.
Page 38 of 42 Maduwongga People (WAD90/2014) 21/7/2014 s62(2)(f) Activities These details are provided in Schedule G.
s62(2)(g) Other applications These details are provided in Schedule H.
s62(2)(ga) s24MD(6B)(c) notices These details are provided in Schedule HA.
s62(2)(h) s29 notices These details are provided in Schedule I.
Where the claim does not satisfy the condition of s 190C(2)
[151] In summary, I am of the opinion that the claim does not satisfy s 19C(2) because:
(a) the application does not contain a general description of the factual basis, as required by ss 61(2)(b) and 62(2)(e); and
(b) the affidavit by the applicant which accompanies the application under s 62(1)(a) does not contain the statement required by paragraph (iv) of s 62(1)(a). The general description of the factual basis required by ss 61(2)(b) & 62(2)(e)
[152] Paragraphs 62(1)(b) and 62(2)(e) require that the application must contain:
(e) 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; (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.
[153] In my reasons above for the condition in s 190B(5), I provide the details of the general description of the factual basis for the assertions outlined in s 62(2)(e). I am of the view that the details and information at paragraph (i) of Schedule F and the statements in Schedules G and M amount to a general description for the first element of the assertion of s 62(2)(e)(i), namely, that the native title claim group have an association with the area. I am also of the view that paras (iii) to (iv) of Schedule F amounts to a general description of the factual basis for the assertions of ss 62(2)(e)(ii) and (iii). The information provided is brief in the extreme but it is nonetheless of a kind that meets this procedural condition, noting the decision by Mansfield J that I am not to undertake any merit or qualitative assessment of the material for the purposes of s 190C(2); that is the task for the merit conditions of s 190B—see NT v Doepel at [16] and also at [35] to [39].
[154] I note that there is a second element to the general description required by s 62(2)(e)(i), namely, a general description of the factual basis for the assertion that the predecessors of the persons in the native title claim group had an association with the area. The relevant statement, in para (ii) of Schedule F, is that ‘the predecessors of the native title claim group had an association
Page 39 of 42 Maduwongga People (WAD90/2014) 21/7/2014 with the area from a time before prior to the assertion of British sovereignty in relation to the area.’ This is no more than a re-statement of that part of s 62(2)(e)(i) dealing with the association of the group’s predecessors with the area. The decision by Kiefel J of Hutchison establishes that merely restating the relevant part of s 62(2)(e) is not sufficient for a claim to meet the condition of s 190C(2)—at [17] to [23].
[155] I refer also to the following observations by the Full Court that the details required by paragraph 62(2)(e):
... are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The fact that the detail specified by s 62(2)(e) is described as "a general description of the factual basis" is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality—Gudjala FC at [92].
[156] In my view, paragraph (ii) of Schedule F falls far short of the details required by s 62(2)(e). It must follow that the claim does not satisfy the condition of s 190C(2), in so far as it concerns this part of s 62. The statement required by s 62(1)(a)(iv)
[157] The two persons comprising the applicant have each made an affidavit dated 6 October 2013 (by Ms Strickland) and 9 October 2013 (by Ms Nudding), which were filed in the Court with the application on 17 April 2014. Each affidavit contains the statements required by ss 62(1)(a)(i), (ii), (iii) and (v). The problem with each affidavit is the statement at paragraph 5 that ‘We are authorised by all the persons in the native title claim group who were born in 1995 or earlier to make the application and to deal with matters arising in relation to it.’ This does not follow the wording of para 62(1)(a)(iv). It may mean that the applicant is authorised by something less than all the persons in the native title claim group.
[158] In my view this is more than a ‘slip or error’ of the kind found by French J not to offend s 62(1)(a)(iv) at [10] of Martin. It appears to me to explicitly state that authority stems only from those persons in the native title claim group who were born in 1995 or earlier. This might be a technical error on the part of the applicant’s legal advisers, noting that the authorisation process in this case took place in July 2013, at which time the members over the age of 18 years would have been born in 1995 or earlier. It may be a part of the applicable decision-making processes operating for decisions of this kind that only adult persons are entitled to participate in decisions of this kind.
Page 40 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [159] However, I am of the view that the requirements of s 62(1)(a) do not permit a departure from its plain and clear words. This appears to me to be grounded in the fundamental requirement outlined in ss 61(1) and (4) that the person or persons making a native title determination application on the basis of a claim to be ‘authorised’ by a ‘native title claim group’ named or described in the application, must ultimately establish to the Court that hears and determines the claim made in the application, that they are persons ‘authorised by all 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’.
[160] I have thus formed the opinion that the claim does not satisfy the condition of s 190C(2), in so far as it concerns the affidavit required to accompany the application under s 62.
190C(3) No common claimants in previous overlapping applications
[161] The claim satisfies the condition of s 190C(3).
[162] Paragraph 190C(3) provides:
The Registrar 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) an entry relating to the claim in 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 consideration of the previous application under section 190A.
[163] There are no native title determination applications which cover any of the area covered by the current application, such that I am not required to consider the issue of common members between this application and any other previously registered applications.
190C(4) Identity of claimed native title holders
[164] The claim satisfies the condition of s 190C(4).
[165] Paragraph 190C(4) provides, relevantly to this application:80
The Registrar must be satisfied that either of the following is the case: (a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; 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.
80 I have not included the note after subparagraph (a), as the application has not been certified.
Page 41 of 42 Maduwongga People (WAD90/2014) 21/7/2014 Note: The word authorise81 is defined in section 251B.
[166] The application is not certified under paragraph 190C(4)(a), such that I must undertake an assessment of whether I am satisfied regarding the matters outlined in paragraph 190C(4)(b). Section 190C(5) provides that if the application has not been certified, the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application includes a statement to that effect and ‘briefly sets out the grounds on which the Registrar should consider that it has been met.’ The relevant statement and brief setting out of the grounds are found in Schedule R of the application. Is the applicant a member of the native title claim group?
[167] I am satisfied that Ms Strickland and Ms Nudding are members of the native title claim group. It is a well known fact, as set out in the factual basis materials considered by me at s 190B(5) above, that they are grandchildren of Kitty Bluegum, the claim group’s identified apical ancestor.
Is the applicant authorised by all the other persons in the native title claim group to make the application and to deal with matters arising in relation to it?
[168] The affidavits by Ms Strickland and Ms Nudding state that authorisation in this case has taken place pursuant to an agreed to and adopted decision-making process whereby the members of the native title claim group convened a meeting for those persons able to attend in person to come to a decision to authorise. The meeting took place on 12 July 2013 in Boulder.
[169] There does not appear to be anything controversial in the information provided about the events leading up to and at the meeting of 12 July 2013. It appears that sufficient notice was given to claim group members such that a reasonable opportunity was extended to the native title claim group as a whole to participate in the authorisation process conducted on 12 July 2013. It appears that the persons present at the meeting were sufficiently representative of the claim group, such that decisions taken that day were authoritative and binding on the claim group overall (see the documentation of the meeting, including an attendance list, meeting minutes and signed authorities annexed to Ms Strickland’s affidavit). I note that there were some claim group members who were unable to attend the meeting and that have since provided their written authority for the applicant to make and deal with the application, copies of which are provided at Annexure A of Ms Strickland’s affidavit.
[170] It follows, on the basis of the information in Schedule R and that contained in the affidavits by the applicant, that I am satisfied that the applicant is authorised to make the application and to deal with matters arising in relation to it by all the other persons in the native title claim group.
[end of statement]
81 Emphasis in original text.
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