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.