Registration test decision – Edited
Application name Mandandanji People
Name of applicant Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall, Leigh Himstedt
State/territory/region Queensland
NNTT file no. QC08/10
Federal Court of Australia file no. QUD366/08
Date application made 6 November 2008
Name of delegate Nadja Mack
I have considered this claim for registration against each of the conditions contained in ss. 190B and 190C of the Native Title Act 1993 (Cwlth). For the reasons attached, I am satisfied that each of the conditions contained in ss. 190B and C are met. I accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth).
Date of decision: 30 March 2009
______Nadja Mack Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cwlth)1
1 Instrument of delegation dated 6 March 2009 pursuant to s. 99 of the Act.
Reasons for decision
Table of contents
Introduction ...... 4 The test ...... 4 Application overview ...... 4 Information considered when making the decision ...... 5 Procedural fairness steps ...... 5 Procedural and other conditions: s. 190C ...... 6 Subsection 190C(2) Information etc. required by ss. 61 and 62 ...... 6 Delegate’s comment ...... 6 Native title claim group: s. 61(1) ...... 6 Result and reasons ...... 6 Name and address for service: s. 61(3) ...... 7 Result and reasons ...... 7 Native title claim group named/described: s. 61(4) ...... 7 Result and reasons ...... 7 Application in prescribed form: s. 61(5) ...... 8 As noted above, I do not consider the requirements of s. 61(5) as I am of the view that the requirements of this subsection are matters for the Court...... 8 Affidavits in prescribed form: s. 62(1)(a) ...... 8 Result and reasons ...... 8 Application contains details required by s. 62(2): s. 62(1)(b) ...... 9 Delegate’s comment ...... 9 Result ...... 9 Information about the boundaries of the area: s. 62(2)(a) ...... 9 Result and reasons ...... 9 Map of external boundaries of the area: s. 62(2)(b) ...... 9 Result and reasons ...... 9 Searches: s. 62(2)(c) ...... 9 Result and reasons ...... 9 Description of native title rights and interests: s. 62(2)(d)...... 10 Result and reasons ...... 10 Description of factual basis: s. 62(2)(e) ...... 10 Result and reasons ...... 10 Activities: s. 62(2)(f) ...... 11 Result and reasons ...... 11 Other applications: s. 62(2)(g) ...... 11 Result and reasons ...... 11 Section 24MD(6B)(c) notices: s. 62(2)(ga) ...... 11 Result and reasons ...... 11
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Section 29 notices: s. 62(2)(h) ...... 12 Result and reasons ...... 12 Combined result for s. 62(2) ...... 12 Combined result for s. 190C(2) ...... 12 Subsection 190C(3) No common claimants in previous overlapping applications ...... 12 Result and reasons ...... 12 Subsection 190C(4) Authorisation/certification ...... 13 Result and reasons ...... 14 Merit conditions: s. 190B ...... 16 Subsection 190B(2) Identification of area subject to native title ...... 16 Information regarding external and internal boundaries: s. 62(2)(a) ...... 16 Map of external boundaries: s. 62(2)(b) ...... 16 Result and reasons ...... 16 Subsection 190B(3) Identification of the native title claim group ...... 17 Result and reasons ...... 17 Subsection 190B(4) Native title rights and interests identifiable ...... 18 Result and reasons ...... 18 Subsection 190B(5) Factual basis for claimed native title ...... 19 Result and reasons re s. 190B(5)(a) ...... 21 Result and reasons re s. 190B(5)(b) ...... 22 Result and reasons re s. 190B(5)(c) ...... 25 Combined result for s. 190B(5) ...... 26 Subsection 190B(6) Prima facie case ...... 26 Result and reasons ...... 26 Subsection 190B(7) Traditional physical connection ...... 35 Result and reasons ...... 36 Subsection 190B(8) No failure to comply with s. 61A ...... 36 Delegate’s comments ...... 36 No approved determination of native title: s. 61A(1) ...... 36 Result and reasons ...... 36 No previous exclusive possession acts (PEPAs): ss. 61A(2) and (4) ...... 36 Result and reasons ...... 37 No exclusive native title claimed where previous non-exclusive possession acts (PNEPAs): ss. 61A(3) and (4) ...... 37 Result and reasons ...... 37 Combined result for s. 190B(8) ...... 37 Subsection 190B(9) No extinguishment etc. of claimed native title ...... 38 Delegate’s comments ...... 38 Result and reasons re s. 190B(9)(a) ...... 38 Result and reasons re s. 190B(9)(b) ...... 38 Result and reasons re s. 190B(9)(c) ...... 38
Attachment A Summary of registration test result ...... 39
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Introduction This document sets out my reasons for the decision to accept the claimant application QC08/10— Mandandanji People—QUD366/08 for registration. Section 190A of the Native Title Act 1993 (Cwlth) requires the Native Title Registrar (Registrar) to apply a ‘test for registration’ to all claimant applications given to her under ss. 63 or 64(4) by the Registrar of the Federal Court of Australia (the Court), but with the exception of amended applications that satisfy ss. 190A(1A) or 190A(6A). Note: All references in these reasons to legislative sections refer to the Native Title Act 1993 (Cwlth) which I shall call ‘the Act’, as in force on 1 September 2007, unless otherwise specified. Please refer to the Act for the exact wording of each condition.
The test In order for a claimant application to be placed on the Register of Native Title Claims (Register), s. 190A(6) requires that I must be satisfied that all the conditions set out in ss. 190B and 190C of the Act are met. Section 190B sets out conditions that test particular merits of the claim for native title. Section 190C sets out conditions about ‘procedural and other matters’. Included amongst the procedural conditions is a requirement that the application must contain certain specified information and documents. In my reasons below I consider the s. 190C requirements first, in order to assess whether the application contains the information and documents required by s. 190C before turning to questions regarding the merit of that material for the purposes of s. 190B. A summary of the result for each condition is provided at Attachment A.
Application overview The Mandandanji People application (the application) was filed as a new application in the Court on 6 November 2008. At the time of filing it was overlapped by one application: QC01/06 — Bigambul People—QUD6005/01, registered 31 January 2002. The Bigambul People’s claim was dismissed on 16 December 2008. The application is located in central southern Queensland, and was filed to replace two previous applications brought by the Mandandanji People: QC97/50—Mandandanji People # 2— QUD6157/98 and QC01/21—Mandandanji People # 3—QUD6019/01. Both matters were dismissed by order of the Court on 18 June 2007. An application lodged prior to the above applications, QC97/33 —Mandandanji People, was withdrawn on 7 July 1998. Queensland South Native Title Services Ltd (QSNTS), a body funded to perform the functions of a representative body under s. 203FE(1) of the Act in relation to the application area is the applicant’s legal representative.
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Information considered when making the decision Subsection 190A(3) directs me to have regard to certain information when testing an application for registration; there is certain information that I must have regard to, but I may have regard to other information, as I consider appropriate. I am also guided by the case law (arising from judgments in the courts) relevant to the application of the registration test. Among issues covered by such case law is the issue that some conditions of the test do not allow me to consider anything other than what is contained in the application while other conditions allow me to consider wider material. The following lists all documents and other information that I have considered in coming to my decision about whether or not to accept the application for registration: The Mandandanji native title determination application filed on 6 November 2008 (QUD366/08) and its attachments; Geospatial assessment by the Tribunal’s Geospatial Services (GeoTrack number 2008/1934) of 21 November 2008; and Copy of the geospatial database iSpatialView search results of the application area, dated 30 March 2009. I have not considered any information that may have been provided to the Tribunal in the course of the Tribunal providing assistance under ss. 24BF, 24CF, 24CI, 24DG, 24DJ, 31, 44B, 44F, 86F or 203BK, without the prior written consent of the person who provided the Tribunal with that information, either in relation to this claimant application or any other claimant application or any other type of application, as required of me under the Act. I also have not considered any information that may have been provided to the Tribunal in the course of its mediation functions in relation to this or any other claimant application. I take this approach because matters disclosed in mediation are ‘without prejudice’ (see s. 136A of the Act). Further, mediation is private as between the parties and is also generally confidential (see also ss. 136E and 136F).
Procedural fairness steps As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness, which seek to ensure that decisions are made in a fair, just and unbiased way. Procedural fairness requires that a person who may be adversely affected by a decision be given the opportunity to put their views to the decision-maker before that decision is made. They should also be given the opportunity to comment on any material adverse to their interests that is before the decision-maker. As no adverse material or supplementary material has been submitted in relation to this application, neither I, nor other officers of the Tribunal, have been required to undertake any steps in relation to procedural fairness obligations.
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Procedural and other conditions: s. 190C Subsection 190C(2) Information etc. required by ss. 61 and 62 The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.
Delegate’s comment I address each of the requirements under ss. 61 and 62 in turn and I come to a combined result for s. 190C(2) below. Section 190C(2) requires the Registrar to be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by ss. 61 and 62. If the application meets all these requirements, the condition in s. 190C(2) is met. I do not consider the requirements of s. 61(5) as I am of the view that the requirements of this subsection are matters for the Court. In my view they do not require separate consideration by the Registrar. In relation to s. 61(5)(c), which requires that the application contain such matters as is prescribed, I test this under s. 190C(2) where specifically required by ss. 61 and 62. I note that in the case of Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] Mansfield J stated that ‘section 190C(2) is confined to ensuring the application, and accompanying affidavits or other materials, contains what is required by ss. 61 and 62’. His Honour also said at *39+ in relation to the requirements of s. 190C(2): ‘...I hold the view that, for the purposes of the requirements of s 190C(2), the Registrar may not go beyond the information in the application itself.’ I am of the view that Doepel is authority for the proposition that when considering the application against the requirements in s. 190C(2), I am not (except in the limited instance which I explore below in my reasons under s. 61(1)) to undertake any qualitative or merit assessment of the prescribed information or documents, except in the sense of ensuring that what is found in or with the application are the details, information or documents prescribed by ss. 61 and 62.
Native title claim group: s. 61(1) The application must be made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.
Result and reasons The application meets the requirement under s. 61(1).
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Under this section, I must consider whether the application sets out the native title claim group in the terms required by s. 61(1). If the description of the native title claim group indicates that not all persons in the native title claim group have been included, or that it is in fact a subgroup of the native title claim group, then the relevant requirement of s. 190C(2) would not be met and I could not accept the claim for registration—Doepel at [36]. I am not required to go beyond the material contained in the application and in particular I am not required to undertake some form of merit assessment of the material to determine whether I am satisfied that the native title claim group as described is in reality the correct native title claim group—Doepel at [37]. The description of the native title claim group, the Mandandanji People, is set out in Schedule A of the application. The Mandandanji People are described as ‘the biological descendants’ of four named persons: ‘Nellie Edwards’, ‘Combarngo Bill’, ‘Weribone Jack Senior’ and ‘Mary Weribone’. There is nothing on the face of the application which leads me to conclude that the above description indicates that not all persons in the native title group have been included, or that it is in fact a subgroup of the native title claim group. There is also nothing on the face of the application which leads me to conclude that the persons comprising the applicant, each of whom have deposed in their s. 61(2)(a) affidavits that they are ‘a direct descendant’ of the Mandandanji People’s ‘old people’, are not included in the claim group.
Name and address for service: s. 61(3) The application must state the name and address for service of the person who is, or persons who are, the applicant.
Result and reasons The application meets the requirement under s. 61(3). The name and address for service of the applicant’s representative is found in Part B of the application.
Native title claim group named/described: s. 61(4) The application must: (a) name the persons in the native title claim group, or (b) otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
Result and reasons The application meets the requirement under s. 61(4). The application contains a description of the persons in the native title claim group at Schedule A. In accordance with Doepel, I consider whether the desciption is sufficiently clear so that it can be ascertained whether any particular person is one of those persons, under the corresponding merit condition in s. 190B(3).
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Application in prescribed form: s. 61(5) The application must: (a) be in the prescribed form, (b) be filed in the Federal Court, (c) contain such information in relation to the matters sought to be determined as is prescribed, and (d) be accompanied by any prescribed documents and any prescribed fee.
As noted above, I do not consider the requirements of s. 61(5) as I am of the view that the requirements of this subsection are matters for the Court.
Affidavits in prescribed form: s. 62(1)(a) The application must be accompanied by an affidavit sworn by the applicant that: (i) the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and (ii) the applicant believes that none of the area covered by the application is also covered by an approved determination of native title, and (iii) the applicant believes all of the statements made in the application are true, and (iv) the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and (v) setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it.
Result and reasons The application meets the requirement under s. 62(1)(a). Section 62(1)(a) provides that the application must be accompanied by an affidavit sworn/affirmed by the applicant in relation to the matters specified in subparagraphs (i)–(v). To satisfy the requirements of s. 62(1)(a), the persons comprising the applicant may jointly swear/affirm an affidavitt or alternatively, each of the persons may swear/affirm an individual affidavit. The application is accompanied by affidavits from each person jointly comprising the applicant, namely: Leslie Weribone, sworn on 4 August 2008; Alexandra Combarngo, sworn on 4 August 2008; David Combarngo, sworn on 4 August 2008; Phyllis Hopkins, sworn on 4 August 2008; Lorraine Tomlinson, sworn on 4 August 2008; Miranda Mailman, sworn on 4 August 2008; Sylvia McCarthy, sworn on 4 August 2008; Violet Costa, sworn on 17 September 2008; Sarah Trindall, sworn on 4 August 2008; and Leigh Himstedt, sworn on 4 August 2008. Each of these affidavits is signed by the deponent and competently witnessed. I am satisfied that each of the affidavits sufficiently addresses the matters required by s. 62(1)(a)(i)-(v).
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Application contains details required by s. 62(2): s. 62(1)(b) The application must contain the details specified in s. 62(2).
Delegate’s comment My decision regarding this requirement is the combined result I come to for s. 62(2) below.
Result The application meets the requirement under s. 62(1)(b).
Information about the boundaries of the area: s. 62(2)(a) The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application.
Result and reasons The application meets the requirement under s. 62(2)(a). Schedule B of the application refers to Attachment B, which contains a description of the external boundaries of the area covered by the application. Schedule B also provides a description of the areas within the external boundaries that are excluded from the application.
Map of external boundaries of the area: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i).
Result and reasons The application meets the requirement under s. 62(2)(b). Schedule C refers to Attachment C, which is a map showing the application area and its boundaries.
Searches: s. 62(2)(c) The application must contain the details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application.
Result and reasons The application meets the requirement under s. 62(2)(c). Schedule D states that no searches have been carried out by the applicant. There is no information before me to indicate that the applicant has made any searches of the kind described in this section.
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Description of native title rights and interests: s. 62(2)(d) The application must contain a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.
Result and reasons The application meets the requirement under s. 62(2)(d). Schedule E provides a description of the native title rights and interests claimed in relation to the particular land and waters covered by the application area. The description does not consist only of a statement to the effect that the native title rights and interests are all the rights and interests that may exist, or that have not been extinguished, at law. I assess the adequacy of the description in the corresponding merit condition at s. 190B(4) below.
Description of factual basis: s. 62(2)(e) The application must contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area, and (ii) there exist traditional laws and customs that give rise to the claimed native title, and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Result and reasons The application meets the requirements under s. 62(2)(e). Her Honour in Queensland v Hutchinson (2001) 108 FCR 575 at [25] notes that it is not enough to merely recite the general or the three particular assertions in s. 62(2)(e); what is required is a ‘general description’ of the factual basis and for the three particular assertions. The Full Federal Court (French, Moore, Lindgren JJ) commented in obiter on the requirements of s. 62(2)(e) in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC). Their Honours said: 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 to be 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. Schedule F refers to Attachment F, which contains a description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and also for the three particular assertions in the section. Further information in relation to the factual basis is contained in Schedule G and Attachment M and in the s. 62(1) affidavits provided by the persons comprising the applicant.
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The description does more than recite the particular assertions and in my view meets the requirements of a general description of the factual basis for the assertions identified in this section. I assess the adequacy of the description in the corresponding merit condition at s. 190B(5) below.
Activities: s. 62(2)(f) If the native title claim group currently carries out any activities in relation to the area claimed, the application must contain details of those activities.
Result and reasons The application meets the requirement under s. 62(2)(f). Schedule G sets out details of activities currently carried out by the native title claim group in relationto the area claimed. Further information in relation to activities carried out in relation to the area claimed is contained in Attachments F and M and in the s. 62(1) affidavits provided by the persons comprising the applicant.
Other applications: s. 62(2)(g) The application must contain details of any other applications to the High Court, Federal Court or a recognised state/territory body of which the applicant is aware, that have been made in relation to the whole or part of the area covered by the application and that seek a determination of native title or of compensation in relation to native title.
Result and reasons The application meets the requirement under s. 62(2)(g). Schedule H sets out the details of one other native title determination claimant application that has been made in relation to part of the area covered by the application: QC01/06 —Bigambul People— QUD6005/01. I note that this application was dismissed on 16 December 2008.
Section 24MD(6B)(c) notices: s. 62(2)(ga) The application must contain details of any notification under s. 24MD(6B)(c) of which the applicant is aware, that have been given and that relate to the whole or part of the area covered by the application.
Result and reasons The application meets the requirement under s. 62(2)(ga). Schedule HA states that the applicant is not aware of any notifications given in accordance with s. 24MD(6B)(c). There is no information before me to indicate that the applicant is aware of any notifications of the kind described in this section.
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Section 29 notices: s. 62(2)(h) The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application.
Result and reasons The application meets the requirement under s. 62(2)(h). Schedule I refers to geospatial data held by the Tribunal and lists 7 notices given under s. 29 which fall within the external boundary of the application as at 23 September 2008. There is no information before me to indicate that the applicant is aware of any other notices of the kind described in this section.
Combined result for s. 62(2) The application meets the combined requirements of s. 62(2), because it meets each of the subrequirements of ss. 62(2)(a) to (h), as set out above.
Combined result for s. 190C(2) The application satisfies the condition of s. 190C(2), because it does contain all of the details and other information and documents required by ss. 61 and 62, as set out in the reasons above. Subsection 190C(3) No common claimants in previous overlapping applications The Registrar/delegate must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if: (a) the previous application covered the whole or part of the area covered by the current application, and (b) the previous application was on the Register of Native Title Claims when the current application was made, and (c) the entry was made, or not removed, as a result of the previous application being considered for registration under s. 190A.
Result and reasons The application satisfies the condition of s. 190C(3). The requirement that the Registrar be satisfied in the terms set out in s. 190C(3) is only triggered if all three of the conditions found in ss. 190C(3)(a), (b) and (c) are satisfied—see Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC)—at [9]. A search of the Register as at 21 November 2008 by the Tribunal’s Geospatial Services (Geospatial) (GeoTrack number 2008/1934) shows that there was one application on the Register that covered part of the area covered by this application: QC01/06 —Bigambul People—QUD6005/01. That application was registered, following a consideration under s. 190A, on 31 January 2002, and as such the conditions of s. 190C(3)(a), (b) and (c) are triggered by this application.
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I note, however, that the Bigambul People application was dismissed on 16 December 2008. On a strict reading of the Act such a dismissal is not relevant to my consideration, as the application had not been removed from the Register ‘as a result of the previous application being considered for registration under s. 190A’, as s. 190C(3)(c) may be interpreted as requiring.
In my view, however, the purpose of this section is to ‘discourage overlapping claims by members of the same native title claim group’ (see explanatory memorandum to the Native Title Amendment Act 1998 at 35.38). Where a claim has been dismissed it is no longer an ‘overlapping’ claim and therefore, in my view, does not need to be considered under s. 190C(3).
In any event, an examination of the information within the respective applications does not reveal any commonality between the two claim groups or their members; in particular, there are no common ancestors in the applications’ description of their respective claim group and there are no common applicants.
I note the statement in the Bigambul application at Schedule A that ‘the native title claim group excludes any person who is a member of a group on whose behalf an application for a determination of native title as listed in Schedule H has been made, whilst such an application remains valid. These applications are as follows: (1) (QC99/4) Western Wakka Wakka Native Title Determination Application (2) (QC99/5) Barunggam People Native Title Determination Application (3) (QC97/50) Mandandanji People #2 Native Title Determination Application (4) (QC01/21)Mandandanji People #3 Native Title Determination Application’.
I further note the statement in Schedule O in the Mandandanji application that there are no common members with any overlapping application. I do not have any information before me that would cause me to be concerned that there may be common members between the current application and the (then )Bigambul application. I am therefore satisfied that no person included in the native title claim group for the current application was a member of the native title claim group for the previous application. Subsection 190C(4) Authorisation/certification Under s. 190C(4) the Registrar/delegate must be satisfied either that: (a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
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Result and reasons I must be satisfied that the requirements set out in either ss. 190C(4)(a) or (b) are met, in order for the condition of s. 190C(4) to be satisfied. For the reasons set out below, I am satisfied that the requirements set out in s. 190C(4)(a) are met because the application has been certified by each representative Aboriginal/Torres Strait Islander or s. 203FE funded body that could certify the application. This application is purported to have been certified by QSNTS and it is therefore necessary to consider if the requirements of s. 190C(4)(a) are met. Section 203BE(4) sets out that a written certification by a representative (or s. 203FE funded) body must: include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a) and (b) have been met; and briefly set out the body’s reasons for being of that opinion; and where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3). Section 203BE(2) sets out that a representative (or s 203FE funded) body must not certify . . . an application for a determination of native title unless it is of the opinion that: all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.
Doepel is authority that the Registrar’s consideration under s. 190C(4)(a) is limited to ensuring that: the certifying body has power under Part 11 to make the certification; and the certification complies with s. 203BE(4) (at [78], [80] and [81]).
Upon being so satisfied, the Registrar is not required to address the condition imposed by s. 190C(4)(b). Section 190C(4)(a) ‘does not leave some residual obligation upon the Registrar, once satisfied of the matters to which s 190C(4)(a) expressly refers, to revisit the certification of the representative body’: Doepel – at [81]. This was approved by Kiefel J in Wakaman People 2 v Native Title Registrar and Authorised Delegate (2006) 155 FCR 107; [2006] FCA 1198 (Wakaman) at [32] .
Information before the delegate A copy of the certification by QSNTS is attached to the application as Attachment R and is referred to at Schedule R. It is dated 5 November 2008 and signed by QSNTS’ principal legal officer. A search of the representative body boundaries in the area of the application, based on the Geosptial report dated 21 November 2008, reveals that QSNTS is the only representative or s. 203FE funded body for the application area. Therefore QSNTS is the only body that can certify the application under s. 203BE.
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Consideration QSNTS is funded under s. 203FE(1) to perform all the functions of a representative body, including the certification function under s. 203BE. The certificate is expressed as the opinions and certification of QSNTS’s principal legal officer rather than those of the representative body. The certificate states that the principal legal officer has been delegated the certification function provided for in s. 203BE on behalf of QSNTS. I am satisfied that a certification by an appropriately delegated principal legal officer of QSNTS sufficiently complies with the requirements of s. 203BE, for the purposes of s. 190C(4)(a). The certification contains the statements and information required by s. 203BE(4). For the purposes of s. 203BE(4)(a), the certificate includes a statement that the principal legal officer is satisfied that the provisions of s. 203BE(2)(a) and (b) have been met. For the purposes of s. 203BE(4)(b), the certificate briefly sets out the officer’s reasons for being of that opinion. The certificate describes the background to the application (reference is made to QSNTS’ Central Land Summit at which boundaries with neighbouring claim groups were discussed based on anthropological recommendations), and the notification of the claim authorisation meeting held in Roma on 9 September 2006. The certificate also states that all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the persons in the native title claim group. This is said to have been done ‘through the holding of the authorisation meeting’. I note in that regard that the minutes of the authorisation meeting attached to the s. 62 (1) affidavits make reference to a presentation of the findings of an anthropological report in relation to claim group composition. I am satisfied that this complies with the s. 203BE(4)(b) requirement to ‘briefly set out the body’s reasons for being of that opinion’. Section 203BE(3) further provides for a representative body’s obligations to make all reasonable efforts to reach agreements between overlapping claimant groups and to minimise the number of overlapping applications. If there are overlapping applications, in accordance with s. 203BE(4), the certification must briefly set out what the representative body has done to meet the requirements of subsection (3). The Bigambul claim (QC01/6) overlapped the Mandandanji claim at the time of lodgment. Paragraph 4a of the certificate contains statements about the efforts made by QSNTS to reach agreement between the Bigambul and Mandandanji claimants. I am satisfied that the application has been certified in accordance with s. 203BE(4) by the only s. 203FE funded body that could certify it, and the requirements of s. 190C(4)(a) are therefore met.
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Merit conditions: s. 190B Subsection 190B(2) Identification of area subject to native title The Registrar must be satisfied that the information and map contained in the application as required by ss. 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
Information regarding external and internal boundaries: s. 62(2)(a) The application must contain information, whether by physical description or otherwise, that enables identification of the boundaries of: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application.
Map of external boundaries: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i).
Result and reasons The application satisfies the condition of s. 190B(2). Schedule B refers to Attachment B which is a written description of the application area prepared by the Tribunal’s Geospatial Services on 3 November 2008. Attachment B is entitled ‘Mandandanji’ and describes the application area by metes and bounds referencing townships, native title determination application boundaries and topographic features including rivers and creeks, and coordinate points and includes sources and reference data. A written description of the areas within the external boundary that are not covered by the application is found in Schedule B at paragraphs 1 through to 6. This is a description listing a number of general class exclusions, such as previous exclusive possession acts as defined in s. 23B, scheduled interests, freehold estates and certain kinds of leases. The description states that any land or waters falling within certain provisions of s. 23B or ss. 47, 47A or 47B are included in the application and that the application area excludes any land or waters where native title has been extinguished. Schedule C refers to Attachment C which is an A3 monochromatic copy of a colour map titled ‘Native Title Determination Application Mandandanji People’ prepared by Geospatial Services dated 3 November 2008 and includes: the application area depicted by a dark bold line with a stippled infill; the external boundary of native title determination application QUD6027/01 Gunggari People 2 QC01/28, shown as a solid line; scale bar, north point, coordinate grid and locality diagram; and notes relating to the source, currency and datum of data used to prepare the map.
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Section 190B(2) requires that the information in the application describing the areas covered by the application is sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. For the Registrar to be satisfied that this can be said, the written description and the map are required to be sufficiently consistent with each other. Having regard to the comprehensive identification of the external boundary in Attachment B and the clarity of the mapping of the external boundary in Attachment C, I am satisfied that the external boundaries of the application area have been described such that the location of it on the earth’s surface can be identified with reasonable certainty. Geospatial provided an assessment of the map and written description on 21 November 2008 (‘the geospatial report’). The assessment notes a typographical error, on page 6 of the description in the coordinates of the point located “approximately 38 kilometers southeast of the township of St George at Longitude 148.91930° East and Latitude 28.204870° South‛, it should read Longitude 148.913930° East and Latitude 28.204870° South. Geospatial’s assessment is that, notwithstanding this minor error, the description and map are consistent and identify the application area with reasonable certainty. I agree with that assessment. A generic or class formula to describe the internal boundaries of an application is acceptable if the applicant has only a limited state of knowledge about any particular areas that would so fall within the generic description provided: see Daniels & Ors v State of Western Australia [1999] FCA 686—at [32]. There is nothing in the information before me to the effect that the applicant is in possession of a tenure history or other information such that a more comprehensive description of these areas would be required to meet the requirements of the section. In fact, the applicant expressly states in Schedule D that no searches have been undertaken to identify non-native title rights and interests in the application area. In these circumstances, I find the written description of the internal boundaries in Schedule B is acceptable as it offers an objective mechanism to identify which areas fall within the categories described. In conclusion, I am satisfied that the information and the map in the application, as required by ss. 62(2)(a) and (b), are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. Subsection 190B(3) Identification of the native title claim group The Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application, or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
Result and reasons The application satisfies the condition of s. 190B(3).
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Under this condition, I am required to be satisfied that one of either s. 190B(3)(a) or (b) has been met. The application does not name the persons in the native title claim group but contains a description in Schedule A: The native title claim group (hereafter the ‘claim group’) on whose behalf the claim is made is the Mandandanji People. The Mandandanji People are the biological descendants of the following people: Nellie Edwards Weribone Jack Senior Combarngo Bill Mary Weribone. According to Mansfield J in Doepel, the focus of s. 190B(3) is not: upon the correctness of the description of the native title claim group, but upon its adequacy so that the members of any particular person in the identified native title claim group can be ascertained—at [37]. Further, Carr J in State of Western Australia v Native Title Registrar (1999) 95 FCR 93 (Western Australia v Native Title Registrar) found, in the way native title claim groups were described, that: It may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently—at [67].
As the application does not name the persons in the native title claim group, I must consider if, pursuant to s. 190B(3)(b), the description in Schedule A is sufficiently clear so that it can be ascertained whether any particular person is in the native title claim group. Describing the claim group as the ‘biological descendants’ of certain named persons provides a sufficiently reliable and objective means by which to ascertain a person’s membership of the group. It may be that some factual inquiry may be required to ascertain how members of the claim group are descended from the named apical ancestors, but that would not mean that the group had not been sufficiently described. I am therefore of the view that the native title claim group is described sufficiently clearly to enable identification of any particular person in that group.
Subsection 190B(4) Native title rights and interests identifiable The Registrar must be satisfied that the description contained in the application as required by s. 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
Result and reasons The application satisfies the condition of s. 190B(4). Section 190B(4) requires the Registrar to be satisfied that the description of the claimed native title rights and interests contained in the application is sufficient to allow the rights and interests to be readily identified. The description must be in a clear and easily understood manner —Doepel at
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[91], [92], [95], [98] to [101] and [123]. An assessment of whether the rights and interests can be established, prima facie, as ‘native title rights and interests’ as defined in s. 223 will be made under s. 190B(6) below. Attachment E contains the following description of the claimed native title rights and interests:
1. Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment or where s238, ss47, 47A, or 47B apply), the Mandandanji People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
2. Over areas where a claim to exclusive possession cannot be recognised, the Mandandanji People claim the following rights and interests: a) the right to access the application area; b) the right to camp on the application area; c) the right to erect shelters on the application area; d) the right to exist on the application area; e) the right to move about the application area; f) the right to hold meetings on the application area; g) the right to hunt on the application area; h) the right to fish on the application area; i) the right to use the natural water resources of the application area including the beds and banks of watercourses; j) the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs; k) the right to conduct ceremony on the application area; l) the right to participate in cultural activities on the application area; m) the right to maintain places of importance under traditional laws, customs and practices in the application area; n) the right to protect places of importance under traditional laws, customs and practices in the application area; o) the right to conduct burials on the application area; p) the right to speak for and make non-exclusive decisions about the application area; q) the right to cultivate and harvest native flora according to traditional laws and customs;
I am satisfied that the description of all the native title rights and interests claimed is sufficient to allow for them to be readily identified. Subsection 190B(5) Factual basis for claimed native title The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area, and
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(b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interest, and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
The statutory requirement Doepel is authority that the Registrar’s task in relation to s. 190B(5) is to consider whether the asserted facts, assuming that they are true, can support the claimed assertions identified in that section; the task is not to ‘test whether the asserted facts will or may be provided at a hearing, or an assessment of the strength of the evidence which may ultimately be adduced to establish the asserted facts’ – Doepel at [17]. This approach to s. 190B(5) was approved by the Full Court of the Federal Court in Gudjala FC – at [83] and [85]. In Gudjala FC the Full Court commented at [92] that: 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. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim [emphasis added]. Doepel indicates that the delegate should approach the task by ‘analysing the information available to address, and make findings about, the particular matters to which s 190B(5) refers’ – at [130]. Mansfield J concludes at [132] that it is correct to focus primarily upon the particular requirements of s. 190B(5), as this is the way in which the Act draws the Registrar’s attention. If the factual basis supports the three particular assertions, then the requirements of the section overall are likely to be met. I therefore turn to the three particular assertions before concluding below whether overall the requirements of s. 190B(5) have been met.
Information considered by the delegate The application contains a general description of the factual basis in Attachment F and further relevant information about the factual basis in Schedule G (details of activities) and Attachment M (details of traditional physical connection). Information is also found in the s. 62(1)(a) affidavits of the persons comprising the applicant who have sworn to the truth of the statements in the application. Attached to the application is the ‘Mandandanji Application Report, Report to Queensland South Native Title Services’ by [anthropologist 1 – name deleted], dated October 2008 ( [anthropologist 1 – name deleted] report).
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Under the [anthropologist 1 – name deleted]report’s Terms of Reference the author was required to address certain matters, some of which are directly relevant to my assessment under this section. I note that the report’s author lists the sources of research information in his report. In summary, the sources include: 19th and early 20th century ethnography; more modern anthropological and linguistic reports since the late 1970s; and current oral tradition data gathered by the author during informal interviews with claimants and their Aboriginal neighbours over short periods in August and September 2008 in Roma, Chinchilla, Toowoomba and Brisbane. In my view the [anthropologist 1 – name deleted]report comprehensively outlines the factual basis for the assertions in s. 190B(5). I will only refer to the other documents outlined (Attachments F and M and Schedule G and the s. 62(1) affidavits) where required, for example when they clarify or enhance the information provided in the [anthropologist 1 – name deleted]report. I further note that I have quoted only those passages from the material before me which are pointedly relevant to each of the assertions. Finally, I note that in the [anthropologist 1 – name deleted]report the claim group’s name is interchangeably spelt ‘Mandandanji’ and ‘Mandandanyi’. For consistency, in my reasons I use the name as used in the application, Mandandanji.
Result and reasons re s. 190B(5)(a) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(a). Section 190B(5)(a) requires me to be satisfied that the factual basis is sufficient to support the assertion that the native title claim group have, and the predecessors of those persons had, an association with the application area. The [anthropologist 1 – name deleted]report contains, in summary, the following information relating to the group’s past and present association with the area covered by this application: The language and population in the Maranoa-Balonne river drainage system (which includes the application area) has been identified in the early records and ethnography primarily with variants of the names Gugayi and Mandandanji. The earliest records from the area are those of the government surveyor Thomas Mitchell who explored the Maranoa-Balonne river system in 1845 and reported that he passed into a language area new to him near present St George (which is in the south of the claim area) and found the area densely occupied by its speakers. The most substantive and reliable of the early material dealing with the claim area and immediate region is a paper written by R. H. Mathews in 1904, ‚Language, Organization and Initiation Ceremonies of the Kogai Tribes‛ which states that the Gugayi (his ‚Kogai‛)-speaking groups he describes occupied the whole of the Balonne-Maranoa drainage basin. Based on the ethnographic and linguistic data the collection of Gugayi speaking groups can be referred to as a ‚Gugayi society‛ which is loosely divided into a number of dialect-marked subgroups, identifying with one or another form of the name Gugayi, Mandandanji, Bijarra
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and Guwamu, and occupying different subdrainage segments of the Maranoa-Balonne country. The prima facie evidence points to an association of the Mandandanji name with the Balonne River sections of the total language area, specifically centred on Surat and Roma, towns which are located within the claim area. There has been intense frontier conflict following the arrival of pastoralists in the mid-1840s which persisted to the early 1850s. Attachment F refers to attacks by local Indigenous people on specific stations between 1842 and 1852 which have been termed the ‚Mandandanji Land War‛. As a result of the conflict, in 1855 most of the Gugayi appeared to have fled westward to the Maranoa, however, late 19th century records show that the Gugayi eventually adapted to the pastoral regime and re-occupied the Balonne. The claimants’ grandparental and great grandparental generations worked on numerous named stations and in town camps through the Maranoa-Balonne region. Examples are given. In addition, a great many of the claimant group’s apical ancestors lived in town fringe camps at Roma, Surat, and St George, and on cattle stations in the surrounding region during the late 19th and early 20th centuries. Examples of the association of current claim group members with the claim area include visiting certain places, hunting, collecting and fishing activities and living on the claim area. There are further examples of current association of the claim group with the application area in Attachments F and G of the application. Additionally, each of the affidavits of the persons comprising the applicant contain the following paragraph: I have accessed the land and waters claimed and collected bush tucker, hunted game and fished the waters in accordance with the customs and traditions of the Mandandanji People. I have done this in conjunction with other members of the Mandandanji People. I have seen my children and other members of the Mandandanji People exercise traditional skills of making artefacts, which are made from resources found on our traditional lands. I am of the view that the material before me sufficiently supports the assertion that the Mandandanji People currently have an association with the whole of the area and that the predecessors of the claim group had an association with the whole of the claim area.
Result and reasons re s. 190B(5)(b) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(b). Section 190B(5)(b) requires me to be satisfied that the factual basis is sufficient to support the assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group that give rise to the claim to native title rights and interests. In my view this assertion must be understood in light of the High Court’s finding in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 (Yorta Yorta) A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, ‚traditional‛ carries with it two other elements in its meaning. First, it conveys an
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understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are ‚traditional‛ laws and customs. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist—at [46]—[47] (emphasis added). In particular, Dowsett J in Gudjala v Native Title Registrar [2007] FCA 1167 (Gudjala) characterised the requisite asserted facts in support of the condition in s. 190B(5)(b) as follows: That the laws and customs currently observed have their source in a pre-sovereignty society and have been observed since that time by a continuing society – at [63]; That there existed at the time of European settlement a society of people living according to a system of identifiable laws and customs, having a normative content – at [65], [66] and [81]; That there is an explanation of the link between the claim group described in the application and the area covered by the application. In the case of a claim group described by reference to apical ancestors this may involve identifying some link between the apical ancestors and any society existing at sovereignty, even if the link arose at a later stage – [66] and [81] [emphasis added]. This approach was not criticised or overturned by the Full Court in Gudjala FC. I use the above case law as a basis for my assessment. That the laws and customs currently observed have their source in a pre-sovereignty society and have been observed since that time by a continuing society The [Anthropologist 1- name deleted] report relevantly: states that conclusions reached by the author are based on early ethnographic and historical records of the region which date from soon after European entry in the 1840s and 50s and oral tradition. The records ‘are taken as indicative of the society at the time of sovereignty, not only because there are no earlier records but because the only possible source of Aboriginal society present at the time is un-acculturated indigenous societies continuous with that preceding sovereignty’; identifies the society asserted to have existed at sovereignty, namely the Gugayi society, as a collection of Gugayi language speaking groups which shared the same laws and customs; states that the Mandandanji are one of a number of dialect-marked subgroups of the wider Gugayi society which are associated with the Balonne River sections of the total language area, specifically centred on Surat and Roma; concludes that the Mandandanji were and are the customary tenure group for the portion of land they have claimed; and notes that the current oral traditions and customary practices of the claimant group exhibit substantive continuities with the original society in the form of descent rules and family occupation histories.
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That there existed at the time of European settlement a society of people living according to a system of identifiable laws and customs, having a normative content The [Anthropologist 1- name deleted] report gives examples of laws and customs of the pre- sovereignty society which have normative content and continue to be observed today: Under the laws and customs of the Gugayi society rights are conferred to the tenure groups of that society. Under such laws and customs the Mandandanji are entitled to use and occupy the land claimed in the application. Rights in country belonging to the Mandandanji sector of the Gugayi society are transmitted from one generation to the next. Hunting ranges, for example, are learnt by participation with parents and grandparents who teach an individual where their country is, and trained them in where their connections lie. Rights of membership to the Mandandanji are most immediately acquired by both patrifiliation and matrifiliation; considerable emphasis is also placed on descent and where grandparents originated, including where they were born and had main base camps. Individuals acquire rights and interests in the claim area on the basis that they are members of the group. Aboriginal people who may be members of the regional society but whose descent and residence history is not Mandandanji and does not lay within the Balonne River country but in other drainage systems, do not have customary entitlements in it. A system of social totemism and associated marriage restrictions governed Gugayi society. In a limited form social totemism is still practised among members of the claim group. Totems were attached to moieties are used as short-hand for marriage restrictions.
That there is an explanation of the link between the claim group described in the application and the area covered by the application. In case of a claim group described by reference to apical ancestors this may involve identifying some link between the apical ancestors and any society existing at sovereignty, even if the link arose at a later stage
The [anthropologist 1 – name deleted]report states that the claim group is linked to the claimants’ apical ancestors as follows: The Mandandanji group of today ‘is descended from people, including the four named apical ancestors, that were members of the Mandandanji group of the 19th and early 20th centuries’. The report notes that the: identified apical ancestors cannot possibly have been the only persons with a Mandandanji identification in their time. They are just the most apical individuals ancestral to the claimant group that can be identified today from a combination of the written and oral records.
Elsewhere the [anthropologist 1 – name deleted] report clarifies that ‘these apical ancestors are not the only ancestors of the claimant group, but simply those most apical that have been identified’ and states that Mandandanji geneologies produced by [Anthropogolist 2 – name deleted] in 2003 – which are not attached to the application – ‘are very full and link the claimants to documented apicals in the claim area’ in the 19th and early 20th centuries.
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I find that the above information identifies a link between the apical ancestors and the current claim group. I note that further relevant information in relation to s. 190B(5)(b) is contained in Attachment F and the s. 62(1)(a) affidavits of the persons comprising the applicant. In my view the material before me provides a sufficient factual basis for the assertion that there exist traditional laws acknowledged and customs observed by the Mandandanji People and that these give rise to the native title rights and interests claimed.
Result and reasons re s. 190B(5)(c) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(c). Section 190B(5)(c) requires me be satisfied that the factual basis is sufficient to support the assertion that the native title claim group has continued to hold the claimed native title rights and interests by acknowledging and observing the traditional laws and customs of a pre-sovereignty society in a substantially uninterrupted way. This is the second element to the meaning of ‘traditional’ when it is used to describe the traditional laws and customs acknowledged and observed by Indigenous peoples as giving rise to claimed native title rights and interests; see Yorta Yorta at [47] and also at [87]. As noted above the [anthropologist 1 – name deleted] report explains the link between the current native title claim group and the pre-sovereignty society as being based on descent from the four apical ancestors named in the application. The [anthropologist 1 – name deleted]report further states that ‘the laws and customs were and are primarily observed’ in three ways: a) following the rules of group membership (as described above); b) the ‘exercise of rights and interests through residence within the traditional country of the group, and in hunting, collecting and fishing of wild resources across wide areas of that country’; and c) the teaching of the younger generation by grandparents as to which places comprise their traditional country. I note that while Attachment F provides limited information to address the requirements of s. 190B(5), it sets out some examples of current acknowledgment and observance of laws and customs by members of the claim group, including: [Applicant 1 – name deleted] one of the persons comprising the applicant, explains that ‘we always knew where the invisible line was’ referring to the boundary between Mandandanji country and that of their neighbours and that ‘you had to get permission to cross that line into other people’s country’. An illustration of the importance placed on totems, or ‘meats’, such as [claimant 1 – name deleted] stating that her mother, [Claimant 2 – name deleted], was of Kangaroo meat as well as her great-grandmother. [Applicant 2 – name deleted] is said to have had an emu totem. Examples of Mandandanji practising gender and age divisions within their society. ‘Whilst not adhered to as strictly as in the past’, at gatherings Mandandanji women and men do not mingle together, and young people cannot go near older people. Out in the bush women can not go near men’s sacred sites and vice versa. [Applicant 1 – name deleted] gives an example of an area north of Roma which is restricted to females.
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Having considered the information in the application, in particular the above material, I am satisfied that the factual basis provided is sufficient to support an assertion that the Madandanji have continued to hold native title in accordance with the traditional laws and customs of a wider regional society identified in the application as the Gugayi society.
Combined result for s. 190B(5) The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficent to support each of the particularised assertions in s. 190B(5), as set out in my reasons above. Subsection 190B(6) Prima facie case The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Result and reasons The application satisfies the condition of s. 190B(6). To meet the requirements of s. 190B(6) only one of the native title rights and interests claimed needs to be established prima facie. Only established rights will be entered on the Register—see s. 186(1)(g) and the note to s. 190B(6). Where I have found that a particular claimed right cannot be established prima facie, I refer the applicant to the provisions of s. 190(3A) which allow the applicant to provide additional information in support of a further consideration by the Registrar of the ability of the right to be registered. The delegate’s Registrar’s? task In relation to the consideration of an application under s. 190B(6) I note Mansfield J’s comment in Doepel: . . . Section 190B(6) requires some measure of the material available in support of the claim—at [126].
On the other hand, s 190B(5) directs attention to the factual basis on which it is asserted that the native title rights and interests are claimed. It does not itself require some weighing of that factual assertion. That is the task required by s 190B(6)—at [127].
. . . s 190B(6) appears to impose a more onerous test to be applied to the individual rights and interests claimed—at [132].
The definition of ‘native title rights and interests’ in s. 223(1) guide my consideration of whether, prima facie, an individual right and interest can be established. In particular I take account of the interpretation of this section in: Yorta Yorta (see s. 190B(5) above) in relation to what it means for rights and interests to be possessed under the traditional laws acknowledged and the traditional customs observed by the native title claim group; and
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The High Court’s decision in Western Australia v Ward (2002) 213 CLR 1 [2002] HCA 28 (Ward HC) that a ‘native title right and interest’ must be ‘in relation to land or waters’. I also need to consider the case law relating to extinguishment when examining each individual right and interest claimed. Any rights that clearly fall prima facie outside the scope of the definition of ‘native title rights and interests ’ in s. 223(1) cannot be established. As mentioned above in relation to the requirements of s. 190B(5), the registration test is an administrative decision—it is not a trial or hearing of a determination of native title pursuant to s. 225, and therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is also not my role to draw definitive conclusions from the material before me about whether or not the claimed native title rights and interests exist, only whether they are capable of being established, prima facie. In summary, s. 190B(6) requires me to carefully examine the asserted factual basis provided for the assertion that the claimed native title rights and interests exist against each individual right and interest claimed in the application to determine if I consider, prima facie, that they: exist under traditional law and custom in relation to any of the land or waters under claim; are native title rights and interests in relation to land or waters (see chapeau to s. 223(1)); and have not been extinguished over the whole of the application area.
The material provided I make the observation that there is a general lack of specificity in the application regarding the traditional laws and customs that are said to give rise to the claimed rights and interests. The only relevant exception is a statement in the [Anthropologist 1- name deleted] report that, as a tenural section of the Gugayi society, the Mandandanji, under the laws and customs of that society, are entitled to ‘use and occupy’ the land claimed in the application. Elsewhere the [Anthropologist 1- name deleted] report refers to ‘customary entitlements in the Balonne River’ under the laws and customs of the Gugayi society and that the claim area ‘belongs’ to the Mandandanji People under the said laws. There is also information about the membership rules of the Mandandanji People (which I have summarised above at s. 190B(5)). Attachment F provides information of past and current exercise of rights and activities on country against each of the claimed rights and interests and very limited information on the laws and customs under which the rights are said to exist.
Consideration of the rights and interests claimed In my consideration of the individual rights and interests below I take into account the above statements in the [Anthropologist 1- name deleted] report in relation to the laws and customs to determine whether the rights claimed, prima facie, can be established. Where the statements themselves are not sufficient to establish the rights prima facie, and there is no further information on the relevant laws and customs contained in the application, I also consider:
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whether there is ‘observable behaviour’ that points to the existence of the relevant laws and customs. I refer to Wongatha People v State of Western Australia (No 9) [2007] FCA 31, at [1443] where Lindgren J noted that evidence of instances of ‘observable’ behaviour such as residence, travelling and camping, hunting, utilisation of bush tucker and medicine and other natural resources ‘do not necessarily point to a normative system’ *the Court’s emphasis+, adding that, using the example of residence, ‘the question is whether all the circumstances make it proper to infer that the choice of place of residence is attributable to a law or custom’; and/or information provided in the application on current activities by claimants (for example those provided at Schedule G of the application) on the claim area which are said to be in exercise of the claimed native title rights and interests. Whilst such activities are not determinative of the existence of a right and interest, they can be supportive of it. I first consider the claim to ‘exclusive possession’ and then the claim to non-exclusive rights and interests, as referred to in Attachment E.
1. Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s 238, ss47, s 47A or s 47B apply), the Mandandanji People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group Outcome: Not established. Reasons: Ward HC is authority that the ‘exclusive’ rights can potentially be established prima facie in relation to areas where there has been no previous extinguishment of native title or where extinguishment is to be disregarded as a result of the Act. The Full Court in Griffiths v Northern Territory (2007) 243 ALR 7 indicates at [127] that the question of exclusivity depends upon the ability of the native title holders to effectively exclude from their country people not of their community, including by way of ‘spiritual sanction visited upon unauthorised entry’ and as the ‘gatekeepers for the purpose of preventing harm and avoiding injury to country’. In my opinion there is very little information before me that supports the existence of exclusive rights under traditional laws and customs. Whilst the[Anthropologist 1- name deleted] report states, in summary, that under the laws and customs of the Gugayi society, the Mandandanji have ‘customary entitlements’ to the claim area and are entitled to ‘use and occupy’ it and that the claim area ’ belongs’ to them, in my view, there is no specific information for me to be satisfied that prima facie a right to ‘exclusive possession’ is capable of being established. For example, whilst it may be inferred from the above statements that the Mandandanji hold exclusive rights to their country within, and amongst the members of, the Gugayi society, no information is provided about the content of the relevant law and custom that would enable me to determine whether the Mandandanji, under the laws and customs of Gugayi society, are able to control access by others to their country or make binding decisions about its use and enjoyment by others (see French J in Sampi v State of Western Australia [2005] FCA 777 at [1072]). I note that the [Anthropologist 1- name deleted] report and Attachment F refer to members of the claim group or their relatives seeking permission when entering another group’s country. No such
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information is provided in relation to other people visiting Mandandanji country. In Attachment F claimant [Applicant 1 – name deleted] is quoted as saying that ‘you had to get permission to cross that line [the boundary between Mandandanji country and their neighbour’s+ into other people’s country’. In the [Anthropologist 1- name deleted] report reference is made to ‘a form of politesse’ which [Applicant 1 – name deleted] heard among her grandparents’ generation when visiting other areas involved the use of the word ‘walk’: ‘If you went to Mitchell, well they were a different tribe, well we had to ask ‚can I walk on your land?‛ Cause if you went on someone else’s land there’d be trouble’. Though not a matter for me to determine, the ‘form of politesse’ as described could amount to observable behaviour rather than a normative rule as the words ‘must seek permission’ suggest. On the face of it, it would even appear that there is an inherent contradiction in the two statements. Ultimately I find that there is not sufficient information before me that shows whether or how the Mandandanji have the ability, under the laws and customs of the Gugayi society, to effectively exclude from their country people not of their community. I therefore find that, on the basis of the information provided in the application, I am not able to find that a right of possession, occupation, use and enjoyment as against the whole world (where it can be recognised) can be prima facie established.
2. Rights and interests claimed by the Mandandanji People over areas where a claim to exclusive possession cannot be recognised In my consideration of the non-exclusive rights and interests claimed, I have grouped together those that appear to be of a similar character and therefore rely on the same evidentiary material or are rights and interests which require consideration of the same law as to whether they can be established. I refer to them as listed in Schedule E. a)—the right to access the application area d)—the right to exist on the application area e)—the right to move about the application area Outcome: Prima facie established Reason: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights existing under the traditional laws and customs of the Gugayi society. As noted above the Mandandanji, under such laws and customs, are entitled to use and occupy the land and waters claimed in the application. In my view the above rights could be classified as incidental to the right to use and occupy the land. I note the statement in the [Anthropologist 1- name deleted] report that there are two major but overlapping descent aggregates that make up the Mandandanji People: ‘one whose residential history and hunting range has been primarily in the portions of the Balonne drainage between Surat and St George, and another oriented more to the portions between Surat and Roma and northeastward’. It is not stated expressly that the described ‘zoning’ of the claim area is a result of normative rules, however, on the balance of the information provided I am prepared to make such an inference. I also note that Attachment F sets out examples of current and past exercise of the above rights, including the following:
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a large number of claimants live, and their predecessors lived, on the claim area (with the [Anthropologist 1- name deleted] report noting that such residence is an exercise of rights and interests); within the claim area there are places where only certain persons are permitted to go under customary provisions; and dissemination of knowledge and traditional laws and customs is by a mix of active participation of children and young members of the Mandandandji in their family group’s exercise of traditional rights and interests, and a process of osmosis from these engagements such as visiting places of importance. In addition the s. 62(1)(a) affidavits of the persons who comprise the applicant state that: I have accessed the land and waters claimed and collected bush tucker, hunted game and fished the waters in accordance with the customs and traditions of the Mandandanji People. I have done this in conjunction with other members of the Mandandanji People. The rights claimed are native title rights and interests in relation to land or waters and there is no information before me that suggests that they have been extinguished over the whole of the application area. On the balance of the material before me, and having applied the test set out above, I find that, prima facie, they can be established. b)—the right to camp on the application area c)—the rights to erect shelters on the application area Outcome: Prima facie established Reason: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. As noted above, the Mandandanji, under such laws and customs, are entitled to use and occupy the land and waters claimed in the application. In my view the above rights could be classified as incidental to the right to use and occupy the land. I also note that Attachment F sets out examples of current and past exercise of these rights, including the following: Physical remains of several campsites throughout the claim area exist, including a waterhole known as ‘the Barracks’ which ‘was a major camp site for the claimants’ ancestors and is still used by claimants today. Another currently used camp site is the Six Mile Waterhole. Prior to settlement shelters were constructed out of resources available in the area including wood, soil, leaves and grasses. Post settlement materials used included tins and canvas. There are examples of people still building and living in humpies today on the claim area. The rights claimed are native title rights and interests in relation to land or waters and there is no information before me that suggests that they have been extinguished over the whole of the application area. On the balance of the material before me, and having applied the test set out above, I find that, prima facie, they can be established. g)—the right to hunt on the application area h)—the right to fish on the application area
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Outcome: Prima facie established Reason: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. In particular I note the statement in the [Anthropologist 1- name deleted] report that there are two major but overlapping descent aggregates that make up the Mandandanji People: ‘one whose residential history and hunting range has been primarily in the portions of the Balonne drainage between Surat and St George, and another oriented more to the portions between Surat and Roma and northeastward’ [emphasis added]. The [Anthropologist 1- name deleted] report also states that the claimants ‘extensive exercise of rights and interests is especially manifest in hunting, collecting and fishing activities’ [emphasis added].
In my view the above finding is supported by Lindgren J’s statement in Wongatha at [952] that: hunting would be probative of a body of laws and customs if, for example, there was evidence of mutually exclusive hunting zones. In such a case, hunting within one zone and the avoidance of others, would be probative of the exercise of a traditional right to hunt within one zone. I note that the [Anthropologist 1- name deleted] report and Attachment F set out examples of current and past exercise of these rights, including the following: Anthropological information demonstrates that Mandandanji People continue to hunt within the claim area, including for emu, kangaroo, bustard and possum; The creeks and rivers in the claim area were and are important sources for fishing and craying; [Claimant 1 – name deleted] is quoted as saying that her family, other than herself, is very eager for porcupine; claimant [Applicant 3 – name deleted] said that she and her brothers and sisters used to collect birriyays (an edible wood-boring grub) which they got with a wire. They also used to hunt goanna and used its fat for sores; and [Anthropologist 2 – name deleted] connection report of 2004 is quoted in Attachment F as follows: ‘‛Residence in the area, visiting places on it, fishing and hunting over it, using its resources and continuing an involvement in Aboriginal matters in the area are considered the active accompaniment...‛ to the most important rights, in the belief of the Mandandanji, that must be maintained and passed down to future generations’. In addition the s. 62(1)(a) affidavits of the persons who comprise the applicant state that: I have accessed the land and waters claimed and collected bush tucker, hunted game and fished the waters in accordance with the customs and traditions of the Mandandanji People. I have done this in conjunction with other members of the Mandandanji People [emphasis added]. The rights claimed are native title rights and interests in relation to land or waters and there is no information before me that suggests that they have been extinguished over the whole of the application area. On the balance of the material before me, and having applied the test set out above, I find that, prima facie, they can be established. i)—the right to use the natural water resources of the application area including the beds and banks of watercourses Outcome: Not established Reasons: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. As
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noted above the Mandandanji, under such laws and customs, are entitled to use and occupy the land and waters claimed in the application. In my view the above rights could be classified as incidental to the right to use and occupy the land. However, the above statements by themselves are insufficient to support a finding that the existence of the claimed right is established prima facie. I have considered the information contained in Attachment F and am of the view that there is no other relevant information currently before me that would support such a finding.
(j)—the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs Outcome: Prima facie established Reason: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. As noted above, the [Anthropologist 1- name deleted] report states that the claimants’ ‘extensive exercise of rights and interests is especially manifest in hunting, collecting and fishing activities’ [emphasis added]. I also note that the [Anthropologist 1- name deleted] report sets out examples of current and past exercise of these rights, including the following: [Applicant 3 – name deleted] is quoted as saying that she and her family members ate a thistle like watercress from the swamps, found and chopped out wild honey, gathered various fruits such as guri (‘like a wild apple’), rubbed the leaves of one of the saltbush species on meat, chewed wattle gum, dug out the whorls on old gum trees to obtain a nut inside (‘tastes just like a walnut’). She added that ‘we didn’t speak the language< but we knew all the names of the animals and things we got in the bush’. [Claimant 1 – name deleted] is quoted saying that her mother used to take her out to get bush bananas and bush oranges. [Claimant 2 – name deleted] characterized the river ‘as chemist and grocery’ and described various types of tubes eaten, wild passion fruit, wild bananas, many types of berries, edible leaves and how the bark of supplejack is boiled up. In addition the s. 62(1)(a) affidavits of the persons who comprise the applicant state that: I have accessed the land and waters claimed and collected bush tucker, hunted game and fished the waters in accordance with the customs and traditions of the Mandandanji People. I have done this in conjunction with other members of the Mandandanji People’; and ‘I have seen my children and other members of the Mandandanji People exercise traditional skills of making artefacts, which are made from resources found on our traditional lands [emphasis added]. The right claimed is a native title right and interest in relation to land or waters and there is no information before me that suggests that it has been extinguished over the whole of the application area. On the balance of the material before me, and having applied the test set out above, I find that, prima facie, it can be established. f)—the right to hold meetings on the application area k)—the right to conduct ceremony on the application area l)—the right to participate in cultural activities on the application area
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Outcome: Prima facie established Reason: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. As noted above the Mandandanji, under such laws and customs, are entitled to use and occupy the land claimed in the application. In my view the above rights could be classified as incidental to the right to use and occupy the land and waters. I also note that Attachment F sets out examples of current and past exercise of these rights, including the following: Several bora rings exist on the claim area. They are associated with traditional ceremonies. [Ancestor 3 - name deleted] used to perform ceremonies at Nindigully which is located within the claim area, south of St. George [Applicant 1 – name deleted] is quoted as saying that ceremonies are still conducted today on the claim area. One example is the ‘welcome to country’ ceremony which is performed by the claimants when they have visitors to the claim area. Attachment G states that the native title claim group currently carries out the following acitivities: use of the application area for customary, cultural and ceremonial purposes; cultural heritage education for Mandandanji People in the area covered by the application; and maintaining spiritual connection with the area covered by the application.
The rights claimed are native title rights and interests in relation to land or waters and there is no information before me that suggests that they have been extinguished over the whole of the application area. On the balance of the material before me, and having applied the test set out above, I find that, prima facie, they can be established. m)—the right to maintain places of importance under the traditional laws, customs and practices in the application area n)—the right to protect places of importance under traditional laws, customs and practices in the application area Outcome: Prima facie established Reason: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. As noted above the Mandandanji, under such laws and customs, are entitled to use and occupy the land claimed in the application. In my view the above rights could be classified as incidental to the right to use and occupy the land and waters.
I also note that the s. 62(1)(a) affidavits of the persons who jointly comprise the applicant indicate that these are rights that exist under traditional law and custom. Each person comprising the applicant relevantly states that: I know that Mandandanji People (particularly the Elders) keep safe the stories and maintain and create sites of significance to the Mandandanji People on the land and waters claimed. I have been told from other Mandandanji People that I must speak for our lands and keep our sacred places.
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I further note that Attachment M refers to claimants’ management of Linden Caves (within the claim area, off Roma-Surat road) as an example of ‘traditional law practised’. Attachment F notes that there are culturally important sites to the Mandandanji across the claim area. These sites have been documented and the Mandandanji move about the claim area protecting these sites and assuring they are properly maintained. Attachment G also makes reference to activities in exercise of the above rights including: cultural heritage work including site clearance, cultural heritage reports and surveys; protection and management of cultural or traditional sites by Elders and other members of the claim group; and communication with various stakeholders in relation to traditional cultural responsibilities and activities on the claim area.
Attachment F sets out further examples. The rights claimed are native title rights and interests in relation to land or waters and there is no information before me that suggests that they have been extinguished over the whole of the application area. On the balance of the material before me, and having applied the test set out above, I find that, prima facie, they can be established. o)—the right to conduct burials on the application area Outcome: Not established Reasons: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. As noted above the Mandandanji, under such laws and customs, are entitled to use and occupy the land and waters claimed in the application. In my view the above rights could be classified as incidental to the right to use and occupy the land. However, the above indication by itself is insufficient to support a finding that the existence of the claimed right is prima facie established. I have considered the information provided in Attachment F and am of the view that there is no other relevant information currently before me that would support such a finding. p)—the right to speak for and make non-exclusive decisions about the application area
Outcome: Prima facie established Reason: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that these are rights that exist under the traditional laws and customs of the Gugayi society. As noted above the Mandandanji, under such laws and customs, are entitled to use and occupy the land claimed in the application. In my view the above rights could be classified as incidental to the right to use and occupy the land and waters.
I also note that the s. 62(1)(a) affidavits of the persons who jointly comprise the applicant indicate that this is a right that exists under traditional law and custom. Each person comprising the applicant relevantly states that:
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I know that Mandandanji People (particularly the Elders) keep safe the stories and maintain and create sites of significance to the Mandandanji People on the land and waters claimed. I have been told from other Mandandanji People that I must speak for our lands and keep our sacred places. Attachment G states that members of the native title group actively conduct negotiations with various interest groups and stakeholders in relation to activities on the claim area. The right claimed is a native title right and interest in relation to land or waters and there is no information before me that suggests that it has been extinguished over the whole of the application area. On the balance of the material before me, and having applied the test set out above, I find that, prima facie, it can be established. q)—the right to cultivate and harvest native flora according to traditional laws and customs Outcome: Not established Reasons: The [Anthropologist 1- name deleted] report and, to some degree Attachment F, indicate that this right exists under the traditional laws and customs of the Gugayi society. As noted above, the Mandandanji, under such laws and customs, are entitled to use and occupy the land and waters claimed in the application. In my view the above right could be classified as incidental to the right to use and occupy the land. Whilst there is information in the application in relation to the harvest and use of native flora and Attachment G states that claimants are currently ‘managing the environment inter alia through traditional burning techniques and eradication of introduced weeks and pests and cultivating native flora [emphasis added], it is my view that the information before me is insufficient to support a finding that the existence of the claimed right is prima facie established. Conclusion As I consider that, prima facie, some of the claimed native title rights and interests can be established, the requirements of s. 190B(6) are met.
Subsection 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or (b) previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to the land or waters) by: (i) the Crown in any capacity, or (ii) a statutory authority of the Crown in any capacity, or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.
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Result and reasons The application satisfies the condition of s. 190B(7). Under s. 190B(7), I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. I take ‘traditional physical connection’ to mean a physical connection in accordance with the particular laws and customs relevant to the claim group, being ‘traditional’ as discussed in Yorta Yorta. Sufficient material is provided in the [Anthropologist 1- name deleted] report and Attachment F regarding the traditional physical connection of members of the native title claim group. The relevant material has been quoted at length in my consideration for both s. 190B(5) and s. 190B(6). I am satisfied that at least one member of that group currently has a traditional physical connection with parts of the application area. Subsection 190B(8) No failure to comply with s. 61A The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s.61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.
Delegate’s comments Section 61A contains four subsections. The first of these, s. 61A(1), stands alone. However, ss. 61A(2) and (3) are each limited by the application of s. 61(4). Therefore, I consider s. 61A(1) first, then s. 61A(2) together with (4), and then s. 61A(3) also together with s. 61A(4). I come to a combined result below.
No approved determination of native title: s. 61A(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
Result and reasons The application meets the requirement under s. 61A(1). The geospatial report dated 21 November 2008 and a search undertaken by myself of the Tribunal’s geospatial databases on 25 March 2009 reveals that there are no approved determinations of native title over the application area.
No previous exclusive possession acts (PEPAs): ss. 61A(2) and (4) Under s. 61A(2), the application must not cover any area in relation to which (a) a previous exclusive possession act (see s. 23B)) was done, and
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(b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23E in relation to the act.
Under s. 61A(4), s. 61A(2) does not apply if: (a) the only previous exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and (b) the application states that ss. 47, 47A or 47, as the case may be, applies to it.
Result and reasons The application meets the requirement under s. 61A(2), as limited by s. 61A(4). Schedule B, paragraph 1 excludes from the application area any areas covered by previous exclusive possession acts as defined in s. 23B.
No exclusive native title claimed where previous non-exclusive possession acts (PNEPAs): ss. 61A(3) and (4) Under s. 61A(3), the application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where: (a) a previous non-exclusive possession act (see s. 23F) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23I in relation to the act.
Under s. 61A(4), s. 61A(3) does not apply if: (a) the only previous non-exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and (b) the application states that ss. 47, 47A or 47, as the case may be, applies to it.
Result and reasons The application meets the requirement under s. 61A(3), as limited by s. 61A(4). Schedule B, paragraph 3 states that exclusive possession is not claimed over areas covered by valid previous non-exclusive possession acts.
Combined result for s. 190B(8) The application satisfies the condition of s. 190B(8), because it meets the requirements of s. 61A, as set out in the reasons above.
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Subsection 190B(9) No extinguishment etc. of claimed native title The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that: (a) a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or (b) the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or (c) in any case, the native title rights and interests claimed have otherwise been extinguished, except to the extent that the extinguishment is required to be disregarded under ss. 47, 47A or 47B.
Delegate’s comments I consider each subcondition under s. 190B(9) in turn and I come to a combined result below.
Result and reasons re s. 190B(9)(a) The application satisfies the subcondition of s. 190B(9)(a). The application at Schedule Q states that ‘the native title claim group does not claim ownership of minerals, petroleum or gas that are wholly owned by the Crown’.
Result and reasons re s. 190B(9)(b) The application satisfies the subcondition of s. 190B(9)(b). The application at Schedule P states that ‘the application does not include a claim by the native title claim group to exclusive possession of all or part of an offshore place’.
Result and reasons re s. 190B(9)(c) The application satisfies the subcondition of s. 190B(9)(c). Schedule B, paragraph 6 states that ‘the area covered by the application excludes land or waters where the native title rights and interests claimed have been otherwise extinguished’. There is no information in the application or otherwise to indicate that any native title rights and/or interests in the application area have been extinguished.
Combined result for s. 190B(9) The application satisfies the condition of s. 190B(9), because it meets all of the three subconditions, as set out in the reasons above. [End of reasons]
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