Registration Test Reasons for Decision

National Native Title Tribunal REGISTRATION TEST REASONS FOR DECISION

REGISTRAR’S DELEGATE: Russell Trott

Application Name Gooniyandi Combined #2 Applicants Dora Sharpe, Eric Lawford, Suzy Lamey, Stanley Holloway, Rita Shandley, David Street, John Till, Neville Sharpe, Teddy Cranbell, Butcher Cherel, Lorraine Shandley, Topsy Chestnut, Reenie Chestnut, and Maureen Carter. Region Kimberley WA NNTT No WC00/10 Fed Court No W6008 of 2000 Date Application Made 26 July 2000

I have considered the application against each of the conditions contained in s 190B and s 190C of the Native Title Act 1993.

DECISION

The application IS ACCEPTED for registration pursuant to s 190A of the Native Title Act 1993.

……………………………………. ……23 April 2001….. Russell Trott Date of Decision Delegate of the Registrar pursuant to sections 190, 190A, 190B, 190C, 190D

Registration Test Decision – Gooniyandi Combined #2 Page 1 Brief History The Gooniyandi Combined #2 native title determination (claimant) application (WC00/10) is a combined application consisting of the following pre-combination applications:

NNTT # Fed. Court # Name WC00/9 W 6008/00 Gooniyandi Country WC99/27 WG 6151/98 Gooniyandi Combined #1

The Gooniyandi Country application (WC00/9) was filed with the Federal Court pursuant to s 61 of the Native Title Act 1993 (“the Act”) on 27 July 2000. The Gooniyandi Combined #1 application (WC99/27) was itself a combination of the following pre-combination applications:

NNTT # Fed. Court # Name Date Filed WC97/14 WG6151/98 Cranbell & Sharpe 18/02/1997 WC97/65 WG6188/98 Teddy Cranbell and Others 04/08/1997 WC97/80 WG6200/98 Gooniyandi 26/09/1997 WC97/82 WG6202/98 Gooniyandi #2 26/09/1997 WC97/83 WG6203/98 Jerry Mutt and Others 26/09/1997 WC97/103 WG6219/98 Suzie Lamey and 08/12/1997 Rita Shandley WC98/32 WG6248/98 Laurie Shaw, Sandy Cox 15/06/1998 and Others WC98/33 WG6249/98 Laurie Shaw, Sandy Cox 15/06/1998 and Others WC98/38 WG6254/98 Stanley Holloway and others 29/06/1998

WC99/27 was combined on 23 September 1999 and accepted for registration on 28 September 1999.

On 29 August 2000 the Federal Court granted the Applicants leave to amend and combine WC99/27 with WC00/9. The orders were received by the National Native Title Tribunal (NNTT) on 31 August 2000 and the combined application was assigned the name Gooniyandi Combined #2 and given claim number WC00/10. Pursuant to s 190A(1) of the Act, the amended application must be considered for registration in accordance with the provisions of the Act and it is the amended application that I now consider.

On 7 March 2001 the State of Western Australia issued 2 section 29 notices under the Act. As a result the Registrar or his delegate is required to use his or her best endeavours to finish considering this application for registration by 7 July 2001 – the end of four months after the section 29 notices were issued, or as soon as reasonably practicable thereafter.

Registration Test Decision – Gooniyandi Combined #2 Page 2 Information considered when making the Decision

In determining this application, where applicable, I have considered and reviewed all of the information and documents from the following files, databases and other sources:

· Registration Test File, Legal Services File and Federal Court Application File for all Gooniyandi applications.

· National Native Title Tribunal Geospatial Database

· Register of Native Title Claims

· Schedule of Native Title Claimant Applications

· The Native Title Register

· Determination of Representative ATSI Bodies: their gazetted boundaries

Consistent with the decision of the Federal Court (Carr J.) in State of Western Australia v Native Title Registrar & Ors [1999] FCA 1591 – 1594, the following information provided by the Applicants directly to the Native Title Registrar was provided to the State:

Affidavits · Sworn on 23 July 1999 [NAME OMITTED] · Sworn on 23 July 1999 [NAME OMITTED] · Sworn on 22 July 1999 [NAME OMITTED] · Sworn on 22 July 1999 [NAME OMITTED] · Sworn on 21 July 1999 [NAME OMITTED] · Sworn on 21 July 1999 [NAME OMITTED]

On 10 November 2000 the State advised that it had no comments to make in relation to the additional material.

Note: 1. All references to the application are references to the combined application amended by order of the Federal Court on 29 August 2000. 2. All references to legislative sections refer to the Native Title Act 1993 unless otherwise specified.

Registration Test Decision – Gooniyandi Combined #2 Page 3 A. Procedural Conditions

Information, etc, required by section 61 and section 62: 190C2 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.

I set out as follows the reasoning in respect of each of the relevant sub-sections of sections 61 and 62 of the Act. On the basis of the application and accompanying documents, I am satisfied that the application meets the requirements of this condition.

Reasons for the Decision

Details required in section 61 61(1) The native title claim group includes all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed Reasons relating to this sub-section:

In Risk v National Native Title Tribunal [2000] FCA 1589 (“Risk”) O’Loughlin J stated that:

“The [Native Title] Act now ensures that applications can only be lodged on behalf of properly constituted groups – not individuals or small sub-groups. This approach is consistent with the principle that native title is communally held… Subsection 61(1) imposes requirements not only in relation to the question of authorisation, but also in relation to the anterior question of whether the application has been made on behalf of a “native title claim group”… An application which is not made on behalf of a “native title claim group” cannot validly proceed…” (at [30] – [31])

His Honour held that a delegate in applying s 190C(2) of the registration test must consider whether the people identified as the native title claim group are people who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title that is claimed in their application. The delegate must be satisfied that the claimants truly constitute such a group. His Honour held that, when it is apparent to the delegate that the group bringing the application is only part of a larger group who hold common or group rights, it is impossible to accept the application for registration.

Under this section I am therefore required to consider whether the people identified as the native title claim group are all the people who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title that is claimed in their application.

In making my decision I have had particular regard to Schedule A of the application, accompanying affidavits and to affidavits provided directly to the Registrar for the purpose of the registration testing of this application. The description of the native title claim group in Schedule A is expressed as comprising “those Aboriginal persons who hold in common the body of laws and customs concerning the claim area” and who are descended from a given list of apical ancestors. The description does not purport to exclude any persons who hold in common the body of laws and customs concerning the claim area. I do not have any other information that indicates that the native title claim group does not include, or may not include, all the persons who hold native title in the area of the application. Based on the information before me I have formed the view that the claim group, as defined in the application, is a properly constituted group, according to the body of laws and customs concerning the claim area and who hold the common or group rights and interests comprising the particular native title that is claimed in the application.

Registration Test Decision – Gooniyandi Combined #2 Page 4 I am satisfied that the claimants truly constitute such a group.

The requirements of s 61(1) are met.

Result: Requirements are met

61(3) Name and address for service of applicant(s) Reasons relating to this sub-section:

The names of fourteen Applicants are provided in the application. The address for service is provided at Part B of the application.

I am satisfied there has been compliance with the procedural requirements of s 61(3).

Result: Requirements are met

61(4) Names persons in native title claim group or otherwise describes the persons so that it can be ascertained whether any particular person is one of those persons Reasons relating to this sub-section:

Schedule A of the application describes the native title claim group.

For the reasons set out in my reasons for decision in relation to s 190B(3), below, I am satisfied that the persons in the native title claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

I am satisfied there has been compliance with the procedural requirements of s 61(4).

Result: Requirements are met

61(5) Application is in the prescribed form; lodged in the Federal Court, contains prescribed information, and accompanied by prescribed documents and fee Reasons relating to this sub-section:

The application meets the requirements of s 61(5)(a) in that it is in the form prescribed by Regulation 5(1)(a) of the Native Title (Federal Court) Regulations 1998.

As is required by s 61(5)(b) the application was filed in the Federal Court.

The application meets the requirements of s 61(5)(c) in that it contains information as prescribed in s 62. I refer to my reasons for decision in relation to those sections.

As is required by s 61(5)(d) the application is accompanied by affidavits sworn by each Applicant as prescribed by s 62(1)(a). A map as prescribed by s 62(2)(b) also accompanies the application. I refer to my reasons for decision in relation to those sections of the Act.

I note that s 190C(2) only requires me to consider details, other information, and documents required by s 61 and s 62. I am not required to consider whether the application has been accompanied by the payment of a prescribed fee.

For reasons outlined above, I am satisfied there has been compliance with the procedural Registration Test Decision – Gooniyandi Combined #2 Page 5 requirements of s 61(5).

Result: Requirements are met

Details required in section 62(1)

62(1)(a) Affidavits address matters required by s62(1)(a)(i) – s62(1)(a)(v) Reasons relating to this sub-section: The application is accompanied by affidavits from each Applicant. Each affidavit has been affirmed before a competent witness. All of the affidavits satisfactorily address the matters required by and comply with the formal requirements of s 62 (1)(a)(i)- (v). Result: Requirements are met

62(1)(c) Details of traditional physical connection (information not mandatory) Reasons relating to this sub-section:

It is not a mandatory requirement that details of traditional physical connection be contained in the application. However the application contains some details relating to ‘traditional physical connection’ at Schedule G.

Result: Provided

Details required in section 62(2) by section 62(1)(b)

62(2)(a)(i) Information identifying the boundaries of the area covered Reasons relating to this sub-section:

Schedule B and Attachment B of the application provide information identifying the boundaries of the area covered by the application.

For the reasons set out in my reasons for decision in relation to s 190B(2), I am satisfied that the application complies with the procedural requirements of s 62(2)(a)(i).

Result: Requirements are met

62(2)(a)(ii) Information identifying any areas within those boundaries which are not covered by the application Reasons relating to this sub-section:

Schedule B of the application contains a written description of the areas within the external boundary of the area claimed which are not covered by the application.

For the reasons set out in my reasons for decision in relation to s 190B(2), I am satisfied that the application complies with the procedural requirements of s 62(2)(a)(ii).

Result: Requirements are met

62(2)(b) A map showing the external boundaries of the area covered by the application

Registration Test Decision – Gooniyandi Combined #2 Page 6 Reasons relating to this sub-section:

Schedules B and C refer to Attachment C, which contains a map showing the external boundaries of the area covered by the application.

For the reasons set out in my reasons for decision in relation to s 190B(2), I am satisfied that the application complies with the procedural requirements of s 62(2)(b).

Result: Requirements are met

62(2)(c) Details/results of searches carried out to determine the existence of any non-native title rights and interests Reasons relating to this sub-section:

Schedule D and Attachment D of the application provide details of the non-native title rights and interests in relation to the land or waters in the area covered by the application of which the applicants are aware.

The requirements of s 62(2)(c) can be read widely to include all searches conducted by any person or body. However, I am of the view that I need only be informed of searches conducted by the applicants, and other searches of which the applicants are aware, in order to be satisfied that the application complies with this condition. It would be unreasonably onerous to expect applicants to have knowledge of, and obtain details about, all searches carried out by every other body or person.

I am satisfied that the application complies with the procedural requirements of s 62(2)(c).

Result: Requirements are met

62(2)(d) Description of native title rights and interests claimed Reasons relating to this sub-section:

The section requires a description of the native title rights and interests claimed in relation to particular land or waters, and any activities in the exercise of the rights and interests claimed. Further, the section requires that the description must not consist merely of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or have not been extinguished, at law.

A description of the rights and interests claimed is provided at Schedule E of the application:

The native title rights and interests claimed are the rights to possession, occupation, use and enjoyment as against the whole world (subject to any native title rights and interests which may be shared with any others who establish that they are native title holders) of the area, and any right or interests included within the same; subject to the following:

i. To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants. ii. The applicants do not make a claim to native title rights and interests which confer possession, occupation , use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the NTA, was done in relation to an area, and, either the act was attributable to the Commonwealth, or the act was attributable to the state of Western Australia and a law of

Registration Test Decision – Gooniyandi Combined #2 Page 7 that State has made provision for that act as described in section 23E NTA 1993; iii. Such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing but which include such areas as may be listed in Schedule L. iv. The said native title rights and interests are not claimed to the exclusion of any other rights or interests validly created by or pursuant to the common law, a law of the State or a law of the Commonwealth,

Schedule G identifies an apparently non-exhaustive list of activities that members of the native title claim group have continuously carried out on the land and waters in the claim area. These activities are activities in the exercise of one or more of the specific rights and interests identified in Schedule E. The activities described are in general terms and, are not necessarily an exhaustive list of all activities carried out in the claim area. However, I am of the view that the information supplied at Schedule G is sufficient to meet the requirements of this section. I am satisfied there has been compliance with the procedural requirements of s 62(2)(d). See also my reasons in relation to the condition in s 190B(4).

Result: Requirements are met

62(2)(e)(i) Factual basis – claim group has, and their predecessors had, an association with the area Reasons relating to this sub-section:

The applicants have provided at Schedule F of the application a general description of the factual basis on which it is asserted that the claim group has, and their predecessors had, an association with the area. I consider that the information in Schedule F meets the requirement of the registration test for the application to contain all of the information required in s 62 (see State of Queensland v Hutchison [2001] FCA 416.

I am satisfied that there has been compliance with the procedural requirements of s 62(2)(e)(i).

Result: Requirements are met

62(2)(e)(ii) Factual basis – traditional laws and customs exist that give rise to the claimed native title Reasons relating to this sub-section

The applicants have provided at Schedule F of the application a general description of the factual basis on which it is asserted that there exist traditional laws and customs that give rise to the claimed native title. I consider that the information in Schedule F meets the requirement of the registration test for the application to contain all of the information required in s 62.

I am satisfied there has been compliance with the procedural requirements of s 62(2)(e)(ii).

Result: Requirements are met

Registration Test Decision – Gooniyandi Combined #2 Page 8 62(2)(e)(iii) Factual basis – claim group has continued to hold native title in accordance with traditional laws and customs Reasons relating to this sub-section

The applicants have provided at Schedule F of the application a general description of the factual basis on which it is asserted that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. I consider that the information in Schedule F meets the requirement of the registration test for the application to contain all of the information required in s 62.

I am satisfied there has been compliance with the procedural requirements of s 62(2)(e)(iii).

Result: Requirements are met

62(2)(f) If native title claim group currently carry on any activities in relation to the area claimed, details of those activities Reasons relating to this sub-section

Details of activities currently carried out by the claimant group in relation to the area claimed are included at Schedule G of the application.

I am satisfied there has been compliance with the procedural requirements of s 62(2)(f).

Result: Requirements are met

Details of any other applications to the High Court, Federal Court or a 62(2)(g) recognised State/Territory body the applicant is aware of (and where the application seeks a determination of native title or compensation) Reasons relating to this sub-section

Schedule H of the application states that the Applicants are not aware of the details of any other applications to the High Court, Federal Court or recognised State/Territory body that have been made in relation to the whole or a part of any area covered by this application and that seek a determination of native title or compensation in relation to native title.

Information held by the Tribunal’s Geospatial Database confirms that there are no overlapping applications.

I am satisfied there has been compliance with the procedural requirements of s 62(2)(g)

Result: Requirements are met

Registration Test Decision – Gooniyandi Combined #2 Page 9 62(2)(h) Details of any s 29 Notices (or notices given under a corresponding State/Territory law) in relation to the area, which the applicant is aware of Reasons relating to this sub-section

Schedule I of the application states:

Details of s29 Notices since 30 September 1998 that relate to the whole or part of the area are:

a) Section 29 notices are anticipated in relation to EL applications 80/2548 and 80/2549 by Navigator Pty Ltd made on 24/1/00 and 26/1/00 respectively. The government party has not yet given notice under section 29 of these acts. E 80/ 2548 affects Mt Pierre and Louisa Downs Stations parts of which are within the country claim area, and E 80 /2549 affects Mt Amhurst, Louisa Downs and Margaret River Stations. These tenements did not fall within the earlier combination application WAG 6151/98. b) A section 29 notice is anticipated for EL application 04/117 by Western Metals Zinc NL (WMZ). The government party has not yet given notice under section 29 of these acts. This tenement did not fall within the earlier combination application WAG 6151/98. The tenement lies mainly within the neighbouring Kurungal claim, and those claimants will have the right to object to he expedited procedure applying to the grant of this tenement. c) A section 29 notice was issued on 25 August 1999 for EP 6/98-9 under the name of Budside Pry Ltd and Pobelo Pty Ltd. in the Shire Derby-West Kimberley.

I note that the section 29 notices referred to in paragraph (a) of Schedule I were issued on 7 March 2001.

I am satisfied that Schedule I contains details of s 29 notices in relation to the area of which the applicants are aware.

I am satisfied there has been compliance with the procedural requirements of s 62(2)(h).

Result: Requirements are met

Reasons for the Decision

For the reasons identified above the amended application contains all details and other information, and is accompanied by the affidavits and other documents, required by s 61 & s 62.

I am satisfied that the application meets all the requirements of this section.

Result: Requirements are met

Registration Test Decision – Gooniyandi Combined #2 Page 10 190C3 Common claimants in overlapping claims: 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. Reasons relating to this condition

The application, at Schedule H, states (and searches of the Register of Native Title Claims and National Native Title Tribunal Geospatial Database confirm) that there are no overlapping applications.

As such s 190C(3) has no operation in relation to the application.

Result: Requirements are met

Registration Test Decision – Gooniyandi Combined #2 Page 11 190C4(a) Certification and authorisation: and The Registrar must be satisfied that either of the following is the case: 190C4(b) (a) the application has been certified under Part II by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). (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.

Reasons relating to this condition

An application complies with s 190C(4)(a) if it is certified under section 203BE or was certified under repealed s 202(4)(d).

Two certificates are provided at Attachment E of the application. The certificates were signed by [NAME OMITTED], Executive Director, Kimberley Land Council (KLC) on 29th May 2000 (I shall refer to this as the first certificate) and by [NAME OMITTED], Chairman, KLC, on 20th July 1999 (I shall refer to this as the second certificate).

An inspection of the Native Title Representative Body gazetted boundaries confirms that the claim area is wholly within the gazetted area of the KLC. In relation to these two Certificates it is asserted in Schedule S that:

Schedule R amends W6008 of 2000 and WAG 6151 of 1998. Applications WAG 6151 of 1998 and W 6008 of 2000 were certified by the Kimberley Land Council. They were made on behalf of the same Applicant group, and the certifications are relied upon for this amendment application.

The wording of both certificates is identical except in respect to item 1(i). In the first certificate it is stated in item 1( i) that:

The Applicants have authority to make the application and to deal with all matters arising in relation to it, on behalf of all the other persons in the native title group whilst in the second certificate, item 1( i) states:

The Applicants Dora Sharpe, Eric Lawford, Suzey Lamey, Stanley Holloway, Rita Shandley, David Street, John Till, Neville Sharpe, Teddy Cranbell, Butcher Cherel, Lorraine Shandley, Topsy Chestnut, Reenie Chestnut and Maureen Carter have the authority to make the application and to deal with matters arising in relation to it, under the NTA;

I note that the applicants and the claim group description at Schedule A are identical for both pre- combined claims (WC99/27 – WG6151/98; WC00/9 – W6008/00).

I also note that on 29 September 1999 the previous Delegate found that the application WC99/27 met the requirements of s 190C(4)(a). To assist in giving my reasons in respect of this condition, I have reproduced below the reasons on which the previous delegate relied in reaching her decision.

This application was certified by the KLC on 20th July 1999.

Registration Test Decision – Gooniyandi Combined #2 Page 12 The certificate expresses the opinion that:

· the named applicants have the authority to make the application and deal with all matters arising in relation to it on behalf of all the other persons in the native title claim group; and

· all reasonable efforts have been made to ensure the application describes or otherwise identifies all other persons in the native title claim group.

As required by s 202(7) the Certificate provides reasons for the opinion. These reasons state that:

· The KLC has prepared the native title claim for the Gooniyandi claimants. Through work preparing this claim, the KLC has become aware of the people who express traditional attachment to the Gooniyandi claim are

· The KLC recently held a Gooniyandi claimant meeting for the purpose of authorising the Applicants. The KLC representatives at this meeting observed that the Applicants were authorised by the claimant group.

Section 202(7)(c) requires that, where applicable, the representative body set out in the certificate what has been done to meet the requirements of s202(6). In s202(6) there is a requirement that, if the representative body is aware of any overlap, the representative body make all reasonable efforts to achieve agreement between the overlapping claim groups. The sub-section also provides that a failure by the representative body to comply with the subsection does not invalidate any certificate given by the representative body.

The Certificate does not address the minor overlap indicated in the previous section. However, since the overlapping claims have been combined within the current application, there is no need to further consider them here.

I am satisfied that the KLC’s Certificate substantially and sufficiently complies with the requirements of s202(7).

The certificate referred to in the previous delegate’s reasons and relied on by the previous delegate is the second certificate referred to in my reasons above. This certificate refers to the “Gooniyandi (WAG6217/98) native title claim”. The reference to WAG 6217/98 is incorrect. WAG 6217/98 is the Federal Court file number for the Kurungal (WC97/101) native title application. The previous delegate did not address this issue in her reasons or was not aware of the discrepancy. In any event I am of the opinion that the error is of minor importance and is characteristic of an error as to form and not substance. Each of the Gooniyandi applicants is named in the certificate and it is quite clear that the certificate is intended to refer to the combined Gooniyandi native title claim as contemplated at the date the certificate was signed, being matter number WAG6151/98, which is one of two pre-combination Gooniyandi applications that together form the current application. Apart from this particular issue, I agree with the reasoning of the previous delegate that the certificate complies with the requirements of the Act.

The first certificate does not refer to Federal Court number. The document is headed:

“Gooniyandi New Country Claim Gooniyandi (W of 2000) Native Title Claim”.

The certificate was issued prior to the filing of the Gooniyandi country claim (W6008/00) (WC00/9) in the Federal Court and the document seems to have been prepared on the expectation that the relevant Federal Court file number would be filled in at a later stage. The fact that the certificate does not include the Federal Court file number is insignificant. In my view, the certificate substantially complies with the requirements of the Act.

Registration Test Decision – Gooniyandi Combined #2 Page 13 For the above reasons I am satisfied that the application complies with the requirements of section 190C(4)(a).

Result: Requirements are met

Registration Test Decision – Gooniyandi Combined #2 Page 14 Evidence of authorisation: 190C5 If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application: (a) Includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and (b) briefly sets out the grounds on which the Registrar should consider that it has been met.

This requirement is not applicable as the application meets the requirements of s 190C(4)(a). I refer to my reasons in relation to s 190C(4) above.

Registration Test Decision – Gooniyandi Combined #2 Page 15 B. Merits Conditions

Description of the areas claimed: 190B2 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.

Reasons for the Decision

External boundaries A written description of the external boundary of the area covered by the application is included at Attachment B of the application. The written description was prepared by the Tribunal’s Geospatial Information Unit as a result of a request under s78 of the Native Title Act. On the basis of advice from the Tribunal’s Geospatial Unit, I am satisfied that the information provided enables the boundaries of the area covered by the application to be identified, and therefore, that the requirements of s 62(2)(a)(i) are met.

Map Attachment C of the application contains a map of the claim area prepared by the Tribunal’s Geospatial Information Unit. This map is based on information supplied to the Tribunal by the Land Claims Mapping Unit, Department of Land Administration, WA.

The map displays sufficient coordinates to enable the position of sites or localities within them to be identified. The map shows a scale allowing distances and areas to be ascertained and identifies various tenures and geographical features. The line indicating the external boundary is finely marked and easy to follow. A locality diagram indicates generally the position of the application within the state of Western Australia, and forms part of the map provided.

Advice from the Tribunal’s Geospatial Unit confirms that the map shows the external boundaries of the area as described in the written technical description at Attachment A2 of the application. I am therefore satisfied that the map submitted with the application meets the requirements of s 62(2)(b).

Internal boundaries At Schedule B of the application it is asserted that:

(a) …

(b) Internal boundaries: i. The applicants exclude from the claim any areas covered by valid acts on or before 23 December 1996 comprising such of the following as are included as extinguishing acts with the Native Title Act 1993, as amended, or Titles (Validations) and Native Title (Effects of Past Acts) Act 1995 (WA), as amended, at the time of the Registrar’s consideration:

· Category A past acts, as defined in NTA s228 and s229: · Category A intermediate period acts as defined in NTA

ii. The applicants exclude from the claim area any areas in relation to which a previous exclusive possession act, as defined in section 23B of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a law of the State has made provision for that as described in section 23E NTA 1993.

Registration Test Decision – Gooniyandi Combined #2 Page 16 iii. Subject to the operations of statutory non-extinguishment provisions including section 44H(c) of the Native Title Act 1993 (Cth) (as amended), the applicants exclude from the claim areas in relation to which native title rights and interests have otherwise been extinguished including areas subject to:

1. An act authorised by legislation which demonstrates the exercise of permanent adverse dominion in relation to native title; or 2. Actual use made by the holder of tenure other than native title which is permanently inconsistent with continued exercise of native title.

In particular the applicants exclude all: i. Acts for a public works; ii. Dedicated roads; and iii. Grants of unqualified freehold.

iv. The application is subject to the provisions of Sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided to the hearing but which include such areas as listed in Schedule L.

v. This claim is a combination of the claims in W of 2000 and WAG 6151 OF 1998.

Section s 62(2)(a)(ii) requires that I must be satisfied that this information 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.

The applicants have not identified, parcel by parcel, the areas of land and waters that are excluded from the claim area. In my view, they are not required to do so in order to satisfy the requirements of s 62(2)(a)(ii) and s 190B(2). The internal boundaries are described by way of identifying classes of land tenure that are not covered by the application. Such class exclusions amount to information that enables the internal boundaries of the application area to be adequately identified. This may require research by the State of Western Australia and other custodians, but nevertheless it is reasonable to expect that the task could be done on the basis of the information provided by the applicants. I find that the information enables the boundaries of any areas within the external boundaries of the application that are not covered by the application to be identified.

Overall Conclusion For the reasons given above, I am satisfied that the information and map contained in the application as required by s 62(2)(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. The application complies with s 190B(2).

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 17 Identification of the native title claim group: 190B3 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.

Reasons for the Decision

To meet the requirements of this condition, I must be satisfied that the persons in the native title claim group are named in the application, or that the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

At Schedule A of the application it is stated that

The Native Title Claim Group comprises those Aboriginal persons who hold in common the body of laws and customs concerning the claim area. Those people are:

The descendants of Wirngarri, Loombarji, Ningali, Garlinhingi, Joorgabidija, Goorraloowa, Magiji, Wajalaa, Ngaro, Nelly Jirlandi, Hanson, Garbayid, Bimbiya, Dilngarriya, Wadgimili, Gimirdi, Malmariya, Thalingoolool, Wiyoorroo, Kimberley Jarlalmarra, Marlawoorna, Nanymarriya, Dooroogardijina, Milbarri, Boodanyanggoo and Jangooyool.

An exhaustive list of claimants has not been provided as required by s 190B(3)(a). In the alternative, the applicants must therefore satisfy the condition in s 190B(3)(b).

The previous delegate noted that claim group description includes another descriptor, ‘those Aboriginal people who hold in common the body of traditional law and custom concerning the claim area’. To assist in giving my reasons in respect of this condition, I have reproduced below the reasons on which the previous delegate relied in reaching her decision.

This descriptor alone would not describe the members of the claim group sufficiently clearly for the purposes of s61(4), as it does not give any indication of how it would be ascertained whether a person is one who ‘hold in common’ the body of laws and customs. Neither does it provide any principles of, or guidance in relation to, the laws and customs, which are derived from the beliefs. The beliefs are not outlined, described or exemplified.

However, this descriptor does not determine who is in the claim group; this is determined by descent from the named persons. It is not therefore necessary for me to understand the meaning of ‘hold in common the body of law and custom concerning the claim area’ as the claim group is defined by descent from the named persons. The reference to holding a body of laws and customs is a statement by the applicants that the people who are the descendants hold in common the body of laws and customs. The definition of the claim group does not depend on ascertaining who holds in common the body of laws and customs.

If the names of the members of the claim group are not listed the subsection requires that the persons be described ‘sufficiently clearly so that it can be ascertained whether any particular person is one of those persons’ (my emphasis). This allows for the ascertainment of members of the claim group at a later date should it be necessary. This does not require the Registrar to ascertain the names of individuals for the purposes of the registration test. In this instance, both s.190B(3)(a) – which requires that members of the native title claim group be named in the application – and s.190B(3)(b) – which requires that persons in the native title claim group are

Registration Test Decision – Gooniyandi Combined #2 Page 18 described sufficiently clearly so that it can be ascertained whether any particular person is in that group – have been met.

The persons in the group comprise the descendants of one or more of the named individuals. Whilst I do not have genealogical evidence available to me which would identify all members of the group, this material is not necessary, otherwise it would make no sense to have an alternative to naming all the persons in the native title claim group.

I am satisfied that this description constitutes an objective means of verifying the identity of members of the native title claim group, by the reference to the Register referred to above, such that it can be clearly ascertained whether any particular person is in the group.

I agree with the reasoning of the previous delegate.

For the reasons given above I find that the claim group description is sufficient to meet the requirements of s 190B(3)(b).

I am satisfied that the application complies with s 190B(3).

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 19 Identification of claimed native title 190B4 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.

Reasons for the Decision This condition requires me to be satisfied that the native title rights and interests claimed can be readily identified. To meet the requirements of s190B(4), I need only be satisfied that at least one of the rights and interests sought is sufficiently described for it to be readily identified.

Schedule E of the application states:

ii. The applicants do not make a claim to native title rights and interests which confer possession, occupation , use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the NTA, was done in relation to an area, and, either the act was attributable to the Commonwealth, or the act was attributable to the state of Western Australia and a law of that State has made provision for that act as described in section 23E NTA 1993;

iii. Such provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing but which include such areas as may be listed in Schedule L.

iv. The said native title rights and interests are not claimed to the exclusion of any other rights or interests validly created by or pursuant to the common law, a law of the State or a law of the Commonwealth,

In my view the native title rights and interests described at Schedule E are readily identifiable. Though the applicants claim native title rights and interests as against the whole world these rights to possession, occupation, use and enjoyment are made subject to qualification and would not preclude the recognition of concurrent rights and interests in the same area. Furthermore, subparagraph (iv) confirms that native title is not claimed to the exclusion of other valid concurrent rights. The qualifications listed are clear in their scope and intention, reciting general limitations to the operation of the listed rights and interests, where relevant.

I am satisfied that the description of the native title rights and interests claimed and the extent of the rights claimed is sufficient to allow the native title rights and interests claimed to be readily identified.

I am satisfied the application complies with s 190B(4).

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 20 Sufficient factual basis: 190B5 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; (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; (c) that the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.

Reasons for the Decision This condition requires me to be satisfied that the factual basis on which it is asserted that there exist native title rights and interests described at Schedule E of the amended application is sufficient to support that assertion. In reaching this decision I must be satisfied that the factual basis supports the 3 criteria identified at s 190B5 (a) – (c).

In applying this condition I have particularly relied on the information provided at Schedule F and Schedule G of the application and on the following affidavits submitted in relation to the present application for the purpose of the registration test:

1.Affidavit of [NAME OMITTED], dated 22 July 1999 2.Affidavit of [NAME OMITTED], dated 22 July 1999 3.Affidavit of [NAME OMITTED], dated 21 July 1999 4.Affidavit of [NAME OMITTED], dated 21 July 1999 5.Affidavit of [NAME OMITTED], dated 23 July 1999 6.Affidavit of [NAME OMITTED], dated 23 July 1999

(a) the native title claim group (has), and the predecessors ... had, an association with the area

This sub-section requires me to be satisfied that: § the members of the native title claim group currently have an association with the area they are claiming, and § the predecessors or antecedents of the members of the native title claim group had an association with the area under claim.

The word ‘association’ is not defined in the Act. In my view, the nature of the association to be demonstrated by the applicants is governed by the nature of the native title rights and interests claimed. In this case the applicants claim the rights and interests identified at Schedule E of the amended application.

In addition, as native title rights and interests are defined as being related to land and waters (s223 of the Act), in my view the information about the association of members of the native title claim group must relate to the area of land and waters where the particular native title rights and interests are claimed. In this case the extent of land and waters claimed is identified at Schedule B of the application. I must therefore be satisfied that the members of the native title claim group are and that their predecessors were, broadly associated with the particular land and waters claimed.

Registration Test Decision – Gooniyandi Combined #2 Page 21

Schedule F states that under traditional laws and customs, rights and interests in the land are vested in the members of the native title group. This is according to a set of principles, each of which connects members of the native title group to the area; for example descent from ancestors connected to the area, conception in the area, birth in the area, traditional knowledge of the area and knowledge of traditional ceremonies of the area. This statement outlines the basis of the native title held by the claim group – it is that the members of the claim group are vested with rights and interests because they have the appropriate connection to the area.

In reaching her decision with regard to the requirements of s 190B(5)(a) in relation to matter number WG6151/98 (WC99/27) the previous delegate relied on the above affidavits provided in support of the application. In order to assist in giving my reasons in respect of this condition, I have reproduced below the previous delegate’s reasons in relation to this condition.

The Affidavit of [NAME OMITTED] states that: · Paragraph 1: He was born in Gooniyandi country, prior to 1920. · Paragraph 1: His mother, mother’s father (and by implication ancestors of his mother’s father) were born on (and by implication lived within) Gooniyandi country. · Paragraph 19: He has lived and worked on Gooniyandi country for most, if not all, of his life.

The Affidavit of [NAME OMITTED states that: · Paragraph 2 & 3: She is associated with Gooniyandi country through her father and father’s father. · Paragraph 6: She was born within Gooniyandi country. · Paragraph 8: She worked on a station within Gooniyandi country.

The Affidavit of [NAME OMITTED] states that: · Paragraph 1: He has lived within Gooniyandi country for most, if not all, of his life. · Paragraph 2 & 3: He was born within Gooniyandi country in the 1930s. · Paragraph 5: His mother and mothers relatives were from Gooniyandi country.

The Affidavit of [NAME OMITTED] states that: · Paragraph 1: She was born within Gooniyandi country. · Paragraph 2: She is currently living within Gooniyandi country. Her ancesters were from Gooniyandi country. She and her family are considered to be ‘traditional owners’ of Gooniyandi country.

The Affidavit of [NAME OMITTED] states that: · Paragraph 2: She was born within Gooniyandi country. · Paragraph 4: She currently lives with her family within Gooniyandi country. · Paragraph 5 & 6: Her mother’s father and mother’s mother were from Gooniyandi country.

The Affidavit of [NAME OMITTED] states that: · Paragraph 1: He was born within Gooniyandi country during the 1920’s. · Paragraph 7: He worked as a stockman within Gooniyandi country. · Paragraph 9: He has lived and worked within Gooniyandi country for most, if not all, of his life. He is considered to be a ‘traditional owner’ of Gooniyandi country.

In order to satisfy this requirement of the registration test, the claimants are required to have a sufficient factual basis to support the assertion that their predecessors had an association with the claim area.

I am satisfied that the factual basis outlined is sufficient to support the assertion in relation to association with the area.

A question arises as to whether the information previously provided in relation to the discrete Registration Test Decision – Gooniyandi Combined #2 Page 22 areas in WC99/27 also applies to the wider area enclosed within the external boundary described at Attachment B of the present application WC00/10.

An examination of the map provided by the applicants shows an area which may be described as the catchment area of that portion of Margaret River from where it is joined by the Laura River to where it joins the Fitzroy River. The map shows the pastoral leases that are either partly or wholly included in within the claim area. The names of these leases are: · Fossil Downs · GoGo · Mt Pierre Station · Bohemia Downs · Emmanuel · Louisa Downs · Larrawa

Fossil Downs Pastoral Lease

Affidavit of [NAME OMITTED] · Para 1: He [mother’s father] was born around Jalnganjoowa or Old Fossil Downs Station a long time before me…I was born at Jalnganjoowa, too perhaps before 1920. All my kids were born at Lanmaloowa, where Fossil Downs Station is today. · Para 2: [NAME OMITTED]’s mother was born at Jalnganjoowa. She was Gooniyandi. Jalnganjoowa is very near or inside a little claim we put over the mining area on our country.

Affidavit of [NAME OMITTED] · Para 15: People from GoGo and Louisa Downs Stations and from Jalnganjoowa or Old Fossil Downs Station used to meet up at Goonyboorgoo for [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM].

Affidavit of [NAME OMITTED] · Para 1: I was born in the 1930s under a yiramba tree at a billabong at Jalnganjoowa, or Old Fossil Downs Homestead, on Fossil Downs Pastoral Lease. There is an old photograph of me, taken when I was a boy, playing at Jalnganjoowa when we were having [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. · Para 16: [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] travelled north up Fossil Downs Pastoral Lease from Emanuel Bore on GoGo Pastoral Lease.

GoGo, Mt Pierre Pastoral and Christmas Creek Leases

Affidavit of [NAME OMITTED] · Par 15: At Nyoowajoowa, a place on GoGo Station on Mayalngar or Margaret River, a [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM].

Affidavit of [NAME OMITTED] · Para 2: My country from my father is all that limestone country on GoGo, Mr Pierrre and Christmas Creek Pastoral Leases Station, like Mimbi Caves, Looma or Galeru Gorge and Goonyboorgoo where Kapok Mine is now located. We call that limestone country, Gilooloo country. Gilooloo country is part of Gooniyandi country · Para 13: Everyone in our country talks about [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]… is just inside one of the little claims which we put over a mining area in our country. Affidavit of [NAME OMITTED] · Para 5: My father [NAME OMITTED], was a bushman, but he also worked on Louisa Downs Station a little bit, building fences for paddocks. My father’s riwi or country is Jindiwirriny-ngarri, near Mt Pierre-Louisa Downs boundary. We put a little claim over a Registration Test Decision – Gooniyandi Combined #2 Page 23 mining area around Jindiwirriny-ngarri. · Para 6: My jaminyi, or mother’s father, [NAME OMITTED] is from this country again, from Louisa Down’s country. He is Gooniyandi-ngarri, or with the Gooniyandi language. · Para 13: We used to play [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] at Bamajirri, or GoGo Station Homestead, at Gooroongal or Christmas Creek Station and at Dijarrawarnu, or Old Fitzroy Crossing, in Bunuba country.

Affidavit of [NAME OMITTED] · Para 1: I was born under a boonyoo tree on an island in the billabong at Bayaloo, near GoGo Homestead · Para 2: I live at Ngalingkadji community living area on Christmas Creek Pastoral Lease. My community gets its name from Ngalinggaji, an area near where we live. Ngalinggaji is part of Gooniyandi country

Louisa Downs and Larrawa Pastoral Leases

Affidavit of [NAME OMITTED] · Para 6: My ngaboo or father started Louisa Downs Station. · Para 10: My father built yards at Jawoonjawoon, on upper Christmas Creek on Larrrawa Station. He built a yard at Garndoowagoona too, also on the Christmas Creek, also on the Larrawa Station. They are Gooniyandi, these places.

Affidavit of [NAME OMITTED] · Para 8: We all fish at Bayirangi, in southern Louisa Downs, at Roorroojboo or Me-No-Savvy Yard, at Ngooloomarra, Wirralngi and Lambardi. All these places are on Marrarra, the Margaret River. · Para 12: [NAME OMITTED] mother was [NAME OMITTED]. I saw her living at Louisa Downs. She was Gooniyandi.

Affidavit of [NAME OMITTED] · Para 12: People at Louisa Downs Station, which is also part of Gooniyandi country, might send bilyji or red ochre wrapped in goorroomba or paperbark to my ngaboo or father. · Para 15: People from GoGo and Louisa Downs Stations and from Jalnganjoowa or Old Fossil Downs Station used to meet up at Goonyboorgoo for [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM].

Margaret River

Affidavit of [NAME OMITTED] · Para 3: When I was a kid, my mother and father always took me fishing and hunting along Mayalngar or Margaret River, on Fossil Downs Pastoral Lease. · Para 6: We would go walkabout all along the Margaret River at that time

Affidavit of [NAME OMITTED] · Para 7. When I was a kid, my mother and father always took me hunting around Gilgoowa and all along Marrarra, the Margaret River, as far eastwards, as Bayirangi, a place at the junction of the Margaret and Mary Rivers.

Affidavit of [NAME OMITTED] · Para 6: He built the wooden yard at Maanjoowa, or Margaret Gorge. That’s Gooniyandi land, like all that Margaret River, or Marrarru, coming upstream. That warlbirri Marrarra, or Margaret River, or is all Louisa country, right up to Balmanggo, where the O’Donnell River, or Durrurru, joins up with Margaret River. Gooniyandi country then goes south going upstream, along the Margaret River

Many of these geographical locations and features are presented in a unified narrative in

Registration Test Decision – Gooniyandi Combined #2 Page 24 the Affidavit of [NAME OMITTED]. [PLEASE NOTE THAT THE DETAILS WHICH HAVE BEEN OMITTED IN THE EXCERPT BELOW RELATE TO ABORIGINAL LAW & CUTOM.] · Para 10: A [DETAILS OMITTED] came in to Gooniyandi country from the north to Jibooloo-jiwilyoogoo, a place with lots of rocks not far from Lanmaloowa, or Fossil Downs Homestead. There are [DETAILS OMITTED] at that place. Jibooloo-jiwilyoogoo is inside Gooniyandi Country. That [DETAILS OMITTED] crossed into Gooniyandi country there and then he started speaking to Gooniyandi. He was talking Kija to the north. He then took Gooniyandi to Goondoonoo and then as far east as Imanara country. Imanara is Kija, outside Gooniyandi country. Goondoonoo is part of Gooniyandi country. From Goondoonoo, the [DETAILS OMITTED] then continued ngiwawoo or south and east to the Margaret River or Mayalngar and the big ranges at Birndoowa. Mayalngar and Birndoowa both thangarndi Gooniyandi or Gooniyandi language. From Birndoowa, that [DETAILS OMITTED] went through Moongardi on Louisa Downs Station, right down south to Boolga, where he still talked Gooniyandi. Boolga is south of Bohemia Downs Station. From there he went south down into the desert where he spoke another language. Some of the places where the that [DETAILS OMITTED] went on Mount Pierre and Louisa Downs Stations are inside a little claim put in over the mining area on that country.

In my opinion, the names of geographical features and pastoral leases that assist in the location of Gooniyandi country can be identified. The pastoral leases named are Fossil Downs, Louisa Downs and Bohemia Downs. The axis of the journey is the Margaret River. The above extracts from the affidavits provide a description of Gooniyandi country that is consistent with the area described in Schedule B and Attachments B and C of the application.

I note that no reference to Emmanual Station appears in the affidavits of the applicants. In his affidavit [NAME OMITTED] mentions Emmanual Bore (Para 16) but states that it is on the GoGo Pastoral Lease. More important is his recollection of collecting [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] on Landsdowne Station, which upon the basis of the map provided, lies beyond Emmanual Pastoral Lease. This would seem to indicate that the intersection of the boundaries of the Emmanual Pastoral Lease with the boundary description of the present application reflects an area in which the claim group have, and their predecessors of those persons had, an association with the area.

I am satisfied that the factual basis on which it is asserted that the native title claim group have, and the predecessors of those persons had, an association with the area is sufficient to support the assertion.

(b) 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.

This subsection requires me to be satisfied that: · traditional laws and customs exist; · that those laws and customs are respectively acknowledged and observed by the native title claim group, and · that those laws and customs give rise to the native title rights and interest claimed

Registration Test Decision – Gooniyandi Combined #2 Page 25 The additional information that has been provided attests to the existence of traditional law and custom relating to the claim area. Further, the content attests to this knowledge being held by living members of the claimant group.

Affidavit of [NAME OMITTED] · Paragraphs 2, 13, 15, 18 & 20: He has a very detailed knowledge of [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] within Gooniyandi country, and the associated mythological significance. He continues to uphold the traditional Laws associated with these places.

Affidavit of [NAME OMITTED] · Paragraph 11: She continues to actively participate in [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. · Paragraph 13, 18, 19 & 20: She has a detailed knowledge of the [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] associated with Gooniyandi country and [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]

Affidavit of [NAME OMITTED] · Paragraph 1, 3, 8, 10, 12, 13, 14, 15 & 16: He has a very detailed knowledge of [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] located within Gooniyandi country, and their associated [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. He continues to uphold the traditional Laws associated with these places.

Affidavit of [NAME OMITTED] · Paragraph 11, 12, 15 & 21: He has a very detailed knowledge of [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] located within Gooniyandi country, and [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. He continues to uphold the traditional Laws associated with these places. · Paragraph 13: In reference to [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM], he states that, ‘We still check on all these places and some of them are inside a little claim which we put over a mining area in our country.’

Affidavit of [NAME OMITTED] · Paragraph 3, 10, 11, 13, 14: She has a very detailed knowledge [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] located within Gooniyandi country, and [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. He continues to uphold the traditional Laws associated with these places.

Affidavit of [NAME OMITTED] · Paragraph 2, 3, 5: He has a very detailed knowledge [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] located within Gooniyandi country, and [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. He continues to uphold the traditional Laws associated with these places.

I am satisfied that the factual basis on which it is asserted 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 is sufficient to support the assertion.

This sub-section requires me to be satisfied that the native title claim group continues to hold native title in accordance with their traditional laws and customs.

Registration Test Decision – Gooniyandi Combined #2 Page 26 Schedule F of the application states that traditional laws and customs have been passed on to the present generation by traditional teaching and that the current group continues to acknowledge and observe those traditional laws and customs.

Schedule G of the application contains a list of some of the activities that the members of the native title claim group carry out, stating that these activities have been “continuously carried out…on the land and waters within the area of the claim”.

The information referred to in relation to s 190B(5)(a) and s 190B(5)(b) above is also relevant to this section.

Affidavit of [NAME OMITTED] · Paragraph 3, 4, 5, 6, 15, 20 & 21: He continues to hunt, fish, and gather bush products, using a combination of traditional and contemporary methods, from within Gooniyandi country. · Paragraph 7: He has participated in traditional Law ceremonies within Gooniyandi country. · Paragraph 8: He has seen elders and other extended family members manufacture stone implements using traditional techniques. · Paragraph 10: He continues to prepare bush foods using traditional techniques. · Paragraph 13: He continues [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. · Paragraph 14: He continues to participate in the traditional exchange network. · Paragraph 22: He continues to paint utilising traditional styles, techniques, and motifs.

Affidavit of [NAME OMITTED] · Paragraph 9: Her father took her hunting within Gooniyandi country. She learned to gather bush resources using traditional techniques. · Paragraph 11: She continues to procure bush resources for [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. · Paragraph 12: She continues to participate in the traditional exchange network. · Paragraph 13, 18, 19 & 20: She continues to uphold the beliefs [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. · Paragraph 16: She continues to follow the beliefs, practices, and principles associated with traditional Aboriginal Law and custom.

Affidavit of [NAME OMITTED] · Paragraph 1, 3, 8, 10, 12, 14, 15 & 16: He continues to uphold the beliefs associated with traditional Aboriginal Law, the Dreamtime, and sacred places. · Paragraph 6: He has learned the techniques associated with the manufacture of traditional stone implements. · Paragraph 11, 13: He continues to protect and maintain places of importance and sacred sites. · Paragraph 18: He continues to participate in Law ceremonies and [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM]. · Paragraph 19: He continues to participate in the traditional exchange network.

Affidavit of [NAME OMITTED] · Paragraph 8: She continues to hunt and fish within Gooniyandi country. · Paragraph 10: She continues to produce items, such as string bags, using traditional techniques and materials. · Paragraph 11, 12, 13, 15: She continues to uphold the beliefs associated with the Dreamtime and traditional Aboriginal Law. She continues to maintain and protect significant sites. · Paragraph 18 & 19: She continues to procure traditional bush products and use them for traditional purposes.

Affidavit of [NAME OMITTED] Registration Test Decision – Gooniyandi Combined #2 Page 27 · Paragraph 3, 11, 13, 14 & 15: She continues to uphold the beliefs and practices associated with traditional Aboriginal beliefs. · Paragraph 4: She continued to use a traditional Aboriginal shelter until the birth of her son. · Paragraph 7, 8, 9 & 17: She continues to hunt, fish, collect and utilise traditional bush products within Gooniyandi country. · Paragraph 18: She continues to participate in the traditional exchange network.

Affidavit of [NAME OMITTED] · Paragraph 1, 3 & 5: He continues to uphold the beliefs and practices associated with the Dreamtime, sacred sites, and traditional Aboriginal religion. · Paragraph 4: When he was younger, he use to hunt, gather, and utilise traditional bush products from within Gooniyandi country.

I am satisfied that the factual basis on which it is asserted that the native title claim group have continued to hold the native title in accordance with traditional laws and customs is sufficient to support the assertion.

Conclusion

For the reasons set out above I am satisfied that the factual basis upon which each of the assertions within s 190B(5) are made is sufficient to support the assertions. I am satisfied that the application complies with s 190B(5).

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 28 Prima facie case: 190B6 The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Reasons for the Decision

Under s190B6 I must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. To meet this condition only some of these rights and interests need to be able to be prima facie established, but I will consider all of the rights and interests claimed as this will determine which of these rights and interests are entered on the Register of Native Title Claims. For the reasons given below, I am of the view that some but not all of the rights and interests claimed can be established.

“Native Title Rights and Interests” are defined at s 233 of the Act. This definition specifically attaches native title rights and interests to land and water, and in summary requires:

· the rights and interests to be linked to traditional laws and customs; · those claiming rights and interests to have a connection with the relevant land and waters; and · those rights and interests to be recognised under the common law of Australia.

The definition is closely aligned with all the issues I have already considered under s 190B5. I will draw on the conclusions I made under that section in my consideration of s 190B6. I have already outlined at s190B(5) that I am satisfied that the members of the native title claim group have an association with the relevant land and waters and continue to adhere to traditional laws and customs that support the factual basis for the native title rights and interests claimed. I refer to my reasons in relation to that section.

It is necessary to have regard to what rights and interests may be claimed at law as well as what rights and interests can, prima facie, be established. The term “prima facie” was considered in North Ganalanja Aboriginal Corporation v Qld 185 CLR 595 by their Honours Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, who noted:

“The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase “prima facie” is: “At first sight; on the face of it; as it appears at first sight without investigation.” [citing Oxford English Dictionary (2nd ed) 1989].”

I have adopted the ordinary meaning referred to by their Honours in considering this application and deciding, prima facie, which native title rights and interests claimed can be established.

The principal barrier at law to a claim for native title rights and interests is that they should not be made over tenures that have been the subject of exclusive possession acts, nor should they involve a claim for exclusive possession over non-exclusive possession act areas (s61A of the Act). For the reasons given at s 190B(8) and s 190B(9)(c) the applicants have clearly and unambiguously excluded any area over which an impermissible claim could be made.

Information Considered Submitted are by the applicants for my consideration are affidavits by:

The rights and interests claimed by the native title claim group are set forth in schedule E of the application. There is one principal native title right and interest expressed, being:

The claim to exclusive possession is qualified in that the claimed native title rights and interests are said to be subject to the following:

iii. Such provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to to the hearing but which include such areas as may be listed in Schedule L.

Schedule F states that ancestors of the native title claim group have occupied, used and enjoyed the claim area since sovereignty through to the present; the native title right to possess, occupy, use and enjoy has been transmitted to the present generations and the preceding generations by the passage of traditional laws and customs.

Schedule G states that members of the native title claim group have continuously carried out activities on the land and waters within the area of the claim and have possessed, used occupied and enjoyed the area, including by way of: (a) residing and camping; (b) building shelters and other infrastructure; (c) having access to the claim area; (d) hunting animals; (e) taking fish and other produce from the waterways; (f) gathering plants and plant products; (g) taking water; (h) taking minerals; (i) setting fires; (j) conducting and taking part in ceremonies; (k) attending sites of religious or cultural significance and protecting these sites; (l) manufacturing tools and weapons from the resources of the land and waters; (m) preserving and caring for the land and waters and controlling access to the land and waters; (n) permitting persons other than the native title holders to enter the Land; (o) owning and controlling information comprising and concerning traditional laws and customs of the native title holders in relation to the Land; (p) exchanging resources collected from the Land amongst themselves and with Registration Test Decision – Gooniyandi Combined #2 Page 30 their neighbours; (q) passing on the knowledge of the country and of the traditional laws and customs.

The additional information supplied by [NAMES OMITTED] provides specific examples of current use and occupation by them and other members of the claim group. Possession, occupation, use and enjoyment has been in accordance with traditional laws and customs. The affidavits also provide examples of cultural activities involving possession, occupation, use and enjoyment of various parts of the claim area. There are several references to communal or group activities.

Conclusion

The applicants have established prima facie, the following native title rights and interests:

The right as against the whole world to the possession, occupation, use and enjoyment of the claim area (subject to any native title rights and interests which may be shared with any others who establish that they are native title holders) subject to the following:

(a) to the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the Applicants; (b) the Applicants do not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non- exclusive possession act, as defined in section 23F of the Native Title Act, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision for that act as described in section 23E of the Native Title Act. (c) such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing but which include such areas as may be listed in Schedule L. (d) the native title rights and interests claimed are not claimed to the exclusion of any other rights or interests validly created by or pursuant to the common law, a law of the State or a law of the Commonwealth.

I am satisfied that the application complies with s 190B(6).

Result: Requirements met.

Registration Test Decision – Gooniyandi Combined #2 Page 31 Traditional physical connection: 190B7 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 holder of a lease.

Reasons for the Decision

Under s 190B(7)(a) I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application.

Traditional physical connection is not defined in the Act. I am interpreting this phrase to mean that physical connection should be in accordance with the particular traditional laws and customs relevant to the claim group.

The affidavits of [NAMES OMITTED] attest to the fact that all of the previously named individuals have a traditional physical connection with the claim area.

The Affidavit of [NAME OMITTED] · Paragraph 1: He was born in Gooniyandi country, before 1920. He is associated with Gooniyandi country through his mother and mother’s father. · Paragraph 2: His [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] is located within Gooniyandi country. · Paragraph 3, 4, 5, 6 & 19: He has hunted, fished, lived, worked and travelled throughout Gooniyandi country for most, if not all, of his life. · Paragraph 7: He has participated in Law ceremonies within Gooniyandi country. · Paragraph 11: He is considered to be a ‘traditional owner’ of Gooniyandi country. · Paragraph 19: ‘I worked on Fossil Downs, Brooking Springs and GoGo Stations, all my life. Nowhere else. I was head stockman at Fossil Downs.’

Based on this affidavit before me, I am satisfied that [NAME OMITTED] currently has and previously had a traditional physical connection with the claim area.

The requirements of s 190B(7) have been met.

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 32 No failure to comply with s61A: 190B8 The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of s61A (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.

Reasons for the Decision s61A(1) – Native Title Determination

A search of the Native Title Register conducted on 20 April 2001, revealed that there is no approved determination of native title in relation to the area claimed in this application.

S61A(2) – Previous Exclusive Possession Acts

The claim has not been made over tenure to which a previous exclusive possession act, as defined in s23B, applies [see Schedule B, Attachment B].

S61A(3) – Previous Non-Exclusive Possession Acts

The applicants are not seeking exclusive possession over areas the subject of previous non- exclusive possession acts. [See schedule E (iii)]

S61A(4) – s47, 47A, 47B

The applicant has sought to invoke the provisions of s 47, 47A or 47B of the Native Title Act.

Conclusion

For the reasons identified above the application and accompanying documents do not disclose and is not otherwise apparent that because of Section 61A the application should not have been made.

The application complies with s 190B(8).

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 33 Ownership of minerals, petroleum or gas wholly owned by the Crown: 190B9 The application and accompanying documents must not disclose, and the (a) Registrar must not otherwise be aware, that: (a) to the extent that the native title rights and interests claimed consist or include ownership of minerals, petroleum or gas - the Crown in right of the Common-wealth, a State or Territory wholly owns the minerals, petroleum or gas;

Reasons for the Decision

Schedule E(i) sets out that to the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.

The application complies with s 190B(9)(a).

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 34 Exclusive possession of an offshore place: 190B9 The application and accompanying documents must not disclose, and the (b) Registrar must not otherwise be aware, that: (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; Reasons for the Decision

No offshore waters are included within the claim area. The application complies with s 190B(9)(b).

Result: Requirements met

Registration Test Decision – Gooniyandi Combined #2 Page 35 Other extinguishment: 190B9 The application and accompanying documents must not disclose, and the (c) Registrar must not otherwise be aware, that: (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)).

Reasons for the Decision

The application and accompanying documents do not disclose, and it is not otherwise apparent that the native title rights and interests claimed have otherwise been extinguished by any mechanism, including: · a break in traditional physical connection; · non-existence of an identifiable native title claim group; · by the non-existence of a system of traditional laws and customs linking the group to the area · an entry on the Register of Indigenous Land Use Agreements. · legislative extinguishment The application at Attachment B excludes all areas where native title rights and interests have otherwise been extinguished. I am satisfied that because native title rights and interests must relate to land and waters (refer s 223 of the Act) the exclusion of particular land and waters is an exclusion of native title rights and interests over those lands and waters. The application complies with s 190B(9)(c).

Result: Requirements met

End of Document

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