Wotjobaluk People & Ot

Reason Application Name: Wotjobaluk people & others Application (NNTT) No: VC95/2 Application (Fed Crt) No: VIC Region: VIC/TAS Date Application Made: 28/12/95 Date Registration Test 11/06/99 Decision made: Decision: Accepted Brief history of the application The application was lodged with the National Native Title Tribunal on 28 December 1995. In accordance with the Tribunal’s procedures operating at the time, the application was entered onto the Tribunal’s Register of Native Title Claims on 28 December 1995 and was accepted by the delegate of the Registrar on 6 October 1996. The application was amended several times prior to, and after, acceptance (chiefly in relation to defining the areas the subject of the application).

In 1998, having received details of interest holders within the claim area from the State of Victoria, the Tribunal commenced notifying those interest holders in accordance with the Native Title Act 1993. The notification period was not completed at the time that amendments to the Act came into operation and, as a result, the Federal Court took responsibility for settling the list of parties to the application.

A Notice of Motion to amend the application was filed in the Federal Court on 22 March 1999. The amendments were consented to by the State and approved by order of the Court on 30 March 1999. When the notice of motion was filed it was accompanied by a Form 1 application which was not a consolidated version of the application. It is apparent from the entry at Schedule S of that application that the Form 1 filed on 22 March is to be read in conjunction with the original application (as amended at that point in time) and not in place of it.

A further Notice of Motion to amend the application was filed in the Federal Court on 31 May 1999. The amendments were approved by order of the Court on 4 June 1999. Again, when the notice of motion was filed it was accompanied by a Form 1 application which was not a consolidated version of the application. As above, it is apparent from the entry at Schedule S of the application that the Form 1 filed on 31 May is to be read in conjunction with the original application (as amended at that point in time) and not in place of it.

Although there was no consolidated version of the application provided, it is worth noting that in the orders made on 4 June, the Federal Court did specify that the following paragraph be inserted into the application to assist with the description of the area covered by the application:

“Part A6 of the original Application describes the area covered by this Application and is incorporated into Schedule B of this Application as amended. The Parish plan maps and other information referred to in, or attached to, Part A6 of the original Application are also incorporated into Schedule B.”

Unless otherwise specified, where in these reasons I refer to “the application” I refer to the application (as amended) as at the date of my decision.

Information considered in making the decision

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

¨ VC95/2 - Application (as amended); ¨ VC95/2 - Working Files*; ¨ VC95/2 - Registration Files; ¨ VC97/7 (VG6009/98) – Working and Registration Files; ¨ VC97/16 (VG6018/98) – Working and Registration Files; ¨ VC98/15 (VG6036/98) – Working and Registration Files; ¨ VC99/1 (VG6002/99) – Working and Registration Files; ¨ VC99/3 (VG6005/99) – Working and Registration Files; ¨ The Register of Native Title Claims; ¨ The Native Title Register; ¨ Submissions of the Victorian Government Solicitor dated 4 January 1999 (x2); ¨ Submissions of the Victorian Government Solicitor dated 25 February 1999; ¨ Submissions of the Victorian Government Solicitor dated 25 March 1999; ¨ Submissions of the Victorian Government Solicitor dated 30 April 1999; ¨ Submissions of the Victorian Government Solicitor dated 4 June 1999; ¨ Submissions of the Victorian Government Solicitor dated 11 June 1999 (VC99/3, VC95/2, VC97/7, VC99/1); ¨ Additional information provided in confidence to the Registrar dated 22 March 1999, namely: ¨ Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999 ¨ Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999

* In reviewing the working files I have also had regard to the numerous applications to become a party to this application. Many of those applications include comments about people’s interest within the claim area or of their opinion of the applicants’ connection to the claim area. Although these statements are relevant to the application of the registration test they are, in my consideration, of very little probative value without any corroborating information and, accordingly, I have attributed little weight to them.

S190B(2) Identification of area subject to native title Met

Description of the areas claimed: 190B(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Reasons for the Decision Having regard to the original application, and the amendments ordered on 30 March 1999 and 4 June 1999 I am satisfied that it can be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Schedule B of the application (including Part A6 of the original application and subsequent amendments) identifies each of the Parishes within the State of Victoria which contain areas of land the subject of this application. A map was submitted with the amendments to the application filed on 31 May 1999 which marked the external boundary of those Parishes. I note that the most recent amendments to the application (7 June 1999) add the following words to Schedule C :

“Map C1 contained in Attachment C is a map showing generally the boundaries, along Parish boundaries within which the area covered by this application is located. Not all the land and waters is claimed. For an accurate description of the area covered refer to Schedule B and refer also to those Parish Plan, national park and other maps for an accurate indication of the boundaries.”

The application as amended, details the area covered by the application by reference to particular crown allotments within each Parish boundary. Details of these allotments are available on the public record and are sufficient to identify the location of the areas claimed on the surface of the earth. Copies of Parish Plans are provided for most of the Parishes. The Parish Plans provide a geospatial depiction of the parcels of land within each Parish and are part of a public record system upon which members of the community might reasonably rely to deal with land issues.

In addition, at Schedule B of the application the applicants have provided a written description of the areas within the external boundary of the claim that are not covered by the application. They have stated at Schedule B(b) that the application does not include any lands subject to a previous exclusive possession act (as defined by the Act). Private freehold land (past or present) is also specifically excluded from the claim area – save where the Act provides that it can be included in the application. Land or waters within the claim area which have been granted to or vested in the Crown in any capacity may be included in the claim area but only in so far as the grant or vesting does not extinguish native title at common law or the use of the land does not extinguish native title at common law.

Such class exclusions amount to information that enables the internal boundaries of the application area to be adequately identified. This may require considerable research of tenure data held by the State of Victoria, but nevertheless it is reasonable to expect that the task can be done on the basis of the information provided by the applicants.

In addition the application covers certain identified waterways which are defined by reference to either the Victorian Government Gazette or a document prepared by the authority of the Victorian Surveyor-General and Director of Mapping. Members of the community might reasonably rely on either of those records in relation to water issues.

On the basis of these definitions and accompanying material, I am satisfied that the internal waterways are described in the application in such a way as to be readily identifiable. As with the land interests, this may require considerable research and mapping but it is nevertheless reasonable to expect that the task can be done on the basis of the information provided by the applicants.

The Victorian Government’s submission, of 4 June 1999, states that exclusions by class within the external boundaries of the application are inappropriate. I have considered these submissions.

I have also taken into account Nicholson J’s decision on 21 May 1999 in the matter of Daniels and Ors, et al v The State of Western Australia (WAG6017 of 1996), being the only authority available to date on what may satisfy the requirements of s. 62 (2)(a)(i) and (ii) of the Native Title Act 1993. I refer specifically to para 32 and 37 of Nicholson J’s decision in which he states:

“These requirements are to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment is made. Consequently a class or formula approach could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances… The Act recognises the need to provide certainty for people with interests as to whether it is subject of a claim. The class formula approach proposed by the applicants to definition of exclusion does, if otherwise appropriate, give certainty for respondent interest holders in that they know their interests is subject to claim unless specifically excluded. The determination of whether particular interests meet the definitions referred to in that section will often have to await the determination. Unreported decision of the Federal Court dated 21 May 1999 at paras 32 and 37”

In the circumstances of this application, where the applicants have identified particular parcels of land within each Parish that are included in the claim area, and where a formula has been provided to exclude certain land tenures from the application area, I consider that that claim area description contains a reasonable level of certainty. Taken together, I am satisfied that the maps, written descriptions and additional information provided are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land and waters.

The application passes this condition. S190B(3) Identification of native title claim groups Met

Identification of the native title claim group: 190B(3) The Registrar must be satisfied that: (a) The persons in the native title claim group are named in the application; or (b) The persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Reasons for the Decision

To meet this condition of the registration test the description of the group must be sufficiently clear so that it can be ascertained whether any particular person is a member of the native title claim group.

An exhaustive list of names of the persons in the native title claim group has not been provided and so the requirements of s190B(3)(a) are not met. In the alternative, according to s190B(3)(b), the application must 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.

Schedule A of the application describes the native title claim group as :

“This application is made jointly on behalf of the Aboriginal people who are the custodians of lands owned by peoples known as Wotjobaluk and their neighbours designated variously as the Jaadwa, Jaara, Jadawadjali/Marditjali, Jupagalk, Jarjari, Latjilatji, Ngarkat, Potaruwutj and Wark Warka. Now referred to as the “native title claim group”.

The native title claim group are Aboriginal people who : 1. Are descendants of one or more of the following Wotjobaluk people : · (Names deleted to protect the privacy of individuals)

The Applicants are descendants of one or more of the above Wotjobaluk people.”

The Victorian Government’s submission of 4 June 1999 argues that the description does not provide an objective process to ascertain whether any individual is a member of the claimant group or not. The State’s submission on this condition concentrates on the first paragraph of Schedule A (outlined above). In my view this paragraph is a general description of the native title claim group, which is described in detail at paragraph 2 of Schedule A.

The information provided is sufficient for it to be ascertained using criteria which can be objectively verified whether any particular person is a descendant of one of those named persons. Consequently, I consider that the information is sufficient to identify whether a person is a member of the native title claim group or not. I note that Schedule A does not provide for the inclusion of persons from outside the descent group.

The application complies with this condition

S190B(4) Identification of claimed native title Met

Identification of claimed native title 190B(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified. Reasons for the Decision

Schedule E of application lists nine specific native title rights and interests claimed by the applicants, which are (in summary form) :

1. Exclusive possession 2. Ownership 3. Right to natural resources 4. Right to trade 5. Right to make decisions 6. Right to give or refuse access 7. Protection of heritage 8. Management of spiritual business 9. Transmission of rights

These nine native title rights and interests are all subject to the rights validly granted by the crown pursuant to statute, to others to possess, occupy, use or enjoy the land or waters. I note that at Schedule T of the application the applicants, in providing information to establish prima facie each of the rights and interests claimed, have made reference to an additional native title right (the right to manage their cultural and intellectual property). As this right is not detailed at Schedule E, I do not consider that it is a right or interest claimed by the applicants.

At Schedule Q the rights and interests claimed are further qualified;

“To the extent that the application includes native title rights and interests consisting of or including ownership of minerals, petroleum or gas, the application does not consist of or include ownership of minerals, petroleum or gas where the Crown in right of the Commonwealth, a State or Territory wholly owns the minerals, petroleum or gas.”

At Schedule B(b), the application excludes any area subject to a previous exclusive possession act defined under section 23B of the Native Title Act 1993 save where the Act (including sections 47, 47A and 47B) and/or the common law allows the land to be part of a Native Title Determination application.

Further at Schedule B(b), the application does not claim exclusive possession over previous non-exclusive possession act areas as defined in section 23F of the Act save where the Act and/or the common law allows such a claim to be part of a Native Title Determination application.

In accordance with the requirements of 62(2)(d) the rights and interests claimed are not merely a statement to the effect they are all those rights and interests that may exist or that have not been extinguished at law. Each of the native title rights and interests claimed is readily identifiable.

In addition, I note that the applicants have sought to limit the claimed native title rights and interests. Essentially, the limitation qualifies the applicants’ claim to exclusive possession of the claim area where such a claim cannot be made. The effect of the limitation is that the claimed rights and interests are not inconsistent with the validly granted rights and interests of others with respect to the claim area.

I am satisfied that all of the claimed native title rights and interests listed can be readily identified from the description provided.

S190B(5) Factual basis for claimed native title Met Sufficient factual basis: 190B(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; (c) that the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.

Reasons for the Decision The factual basis for the assertion that the native title rights and interests claimed exist is to be found in Schedule F of the amended application. I have already referred to this in my reasons for decision in relation to section 62(2)(e) above. In considering the sufficiency of that factual basis under section 190B(5), I am entitled to look at further information provided by the applicant, and to consider any information adverse to that factual basis which is held by the Tribunal. Schedule F of the application is as follows :

“The native title claim group assert that their native title rights and interests exist and that : a) The native title group has, and the predecessors of those persons had, an association with the area; and b) There exist traditional laws and customs that give rise to the claimed native title; and c) The native title claim group has continued to hold the native title in accordance with those traditional laws and customs. These assertions are supported by : (A) The act of the native title claim group making this Native Title Determination Application under the Native Title Act 1993; (B) By the contents of this Application; and (C) The affidavits and other material provided by the Applicants to the Registrar of the National Native Title Tribunal”

The evidence that I have found to be probative in making my decision in relation to this condition is as follows :

· Information contained in the amended application · Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999 · Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999.

I note that both affidavits were received by the Tribunal in confidence, and for the purpose of applying the registration test to this application, and two other Wotjobaluk People applications. Also, the affidavit from (Name deleted to protect the privacy of an individual) had the location of a women’s site amended by the deponent to remove the location (blacked out by pen). I am satisfied that the site referred to is within the claim area. The exact location of the site is not important to my consideration under these conditions.

The applicants also provided a letter and extracts from Aboriginal Languages and Clans: An Historical Atlas of Western and Central Victoria, 1800-1900, Ian D. Clark, 1990, in relation to the registration test for Wotjobaluk combined application V6002/99 and V6005/99. The extract refers to the Jardwadjali language area which is also referred to in the application. Whilst I have considered this extract, I found it to be of little assistance to me in determining this registration test condition and conditions 190B6 and 190B7.

I have also reviewed information provided by the State Victoria including the 4 June 1999 submission. However, I found this information was of little assistance in determining this condition. The State had requested copies of the affidavits that were provided in support of the application and any other additional information. However, I do not believe that it is appropriate for me to do so for the purpose of applying this administrative test. I note that the State Government also sent a facsimile to the Tribunal on 11 June 1999 (1.47pm) concerning this application. I have considered the arguments made by the Victorian Government Solicitor, but do not agree that the application is deficient, refer to my reasons provided at s190C2.

Section 190B(5) requires that I be satisfied that there is sufficient factual basis to support three specific assertions.

190B(5)(a) - that the native title claim group have, and the predecessors of those persons had, an association with the area.

In considering this condition I have had regard to the two affidavits affirmed by members of the native title claim group

Both of the deponents were born within the claim area and have lived in the area of the claim for most of their lives. The affidavits refer to hunting and gathering within the claim area and continued usage of the area in a traditional context.

I refer in particular to the affidavit of (Name deleted to protect the privacy of an individual), who states that he was born on the bank of the (Place name deleted to protect the privacy of an individual) River in 1919. (Name deleted to protect the privacy of an individual) talks about his father and uncle teaching him to hunt and fish and how to make waddy waddys and spears and boomerangs. There is also information linking other members of the Wotjobaluk people to the claim area and each other. For instance, (Name deleted to protect the privacy of an individual) says that he is recognised as a Senior Elder of the Wotjobaluk people, and speaks of the law and custom of the Wotjobaluk people.

I am satisfied that there is a factual basis to support the assertion that the native title claim group have and their predecessors of those persons had, an association with the area.

190B(5)(b) – that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests.

I am satisfied that there exist traditional laws and customs that are observed by the claimant group. (Name deleted to protect the privacy of an individual)’s affidavit refers to the traditional law of the Wotjobaluk people, and identifies the activities and practices that he and S190B(6) Prima facie case Met

Prima facie case: 190B(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Reasons for the Decision Under s190B6 I must consider that, prima facie, at least some of the rights and interests claimed can be established. In deciding which native title rights and interests claimed can be prima facie established I have relied on the following information :

· Information contained in the amended application (Schedule T in particular) · Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999 · Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999

The native title rights and interests claimed are described at Schedule E of the application. I have outlined a general description of the claimed rights and interests in my reasons for decision in relation to s190B(4). I note that the applicants have limited the native title rights and interests claimed in respect of the valid rights and interests of others. This qualification is significant when considering the prima facie establishment of the claimed native title rights and interests.

I must decide whether or not in law and fact each of the particular native title rights and interests claimed in Schedule E of the amended application is prima facie capable of being established.

I consider that the following native title rights and interests claimed in the application can be prima facie established. I refer to examples of the evidence that prima facie support the claimed native title rights and interests. [Also note the evidence outlined in my reasons for decision at 190B(5) and (7)]

1. Exclusive Possession

In his affidavit, (Name deleted to protect the privacy of an individual) states that he calls the area the subject of the application his country; that he is often invited to open official functions; and that other Aboriginal people and non-indigenous people come to Goolum Goolum Co-operative and advise them that they are on their (Wotjobaluk) country. He says that Wotjobaluk people have prevented activities on their country such as with the Barabool State Forest. On a prima facie level, I am satisfied that the right to exclusive possession can be made out in some parts of the claim area.

2 Ownership

The affidavit evidence referred to above also enables me to be satisfied on a prima facie basis, that the right to ownership of parts of the claim area can be established.

3 Right to Natural Resources

There are numerous references to the use of natural resources by the claimant group in the affidavit evidence that I have reviewed. In particular there is evidence that the claimant group hunt and gather including use of ochre, dead wood, emu, emu eggs, fish, birds feathers, kangaroo, yula-wil (echidna), possums, bush foods, yams, quandongs, old man weed, gumnuts, sand stone, sap, rushes, honey, witchetty grubs, and fresh water mussels.

4 Right to trade

The affidavit of (Name deleted to protect the privacy of an individual) states that she is employed at (Name deleted to protect the privacy of an individual) to design and make arts and craft for trading. On a prima facie basis I am satisfied that this right and interest can be established.

5 Right to make decisions

The affidavit evidence of (Name deleted to protect the privacy of an individual) and (Name deleted to protect the privacy of an individual) refer to the Wotjobaluk peoples’ rights to make decisions about the claim area. In particular (Name deleted to protect the privacy of an individual) refers to the Wotjobaluk people entering into agreements about developments, and allowing access to the claim area of other Aboriginal people. He also refers to the Wotjobaluk people preventing activities on their country such as with the Barabool State Forrest.

6 Right to give or refuse access

I am satisfied that this right can be established on a prima facie level, based on the same evidence that I reviewed above ((Name deleted to protect the privacy of an individual)’s affidavit regarding right to make decisions) S190B(7) Physical connection Met

Traditional physical connection: 190B(7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) Any holder of a lease over any of the land or waters, or any person acting on behalf of such holder of a lease.

Reasons for the Decision

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

At Schedule M of the application the applicants assert that members of the native title claim group have a traditional physical connection to the land and waters covered by the application. To support these assertions, they refer to various statements in the application and the affidavits provided to the Tribunal.

As indicated in my reasons above, I have read the affidavit evidence of two members of the claimant group. I must only be satisfied that one member of the claim group has or previously had a traditional physical connection with any part of the land claim. I am satisfied that (Name deleted to protect the privacy of an individual) has the requisite traditional physical connection. I am also satisfied that (Name deleted to protect the privacy of an individual) has a traditional physical connection to the claim area. However as I need only be satisfied that one person in the claim group holds the requisite connection, I will only set out my reasons in relation to (Name deleted to protect the privacy of an individual).

In his affidavit, (Name deleted to protect the privacy of an individual) states that he was born on the bank of the (Place name deleted to protect the privacy of an individual) River in 1919, which is the traditional country of the Wotjobaluk people. (Name deleted to protect the privacy of an individual) talks about his father and uncle teaching him to hunt and fish and how to make waddy waddys and spears and boomerangs and canoes and that he still makes these today. (Name deleted to protect the privacy of an individual) says that he has lived on his country for most of his life. (Name deleted to protect the privacy of an individual) says that he is recognised as a Senior Elder of the Wotjobaluk people, and speaks of the law and custom of the Wotjobaluk people.

Based on the affidavit before me, I am satisfied that (Name deleted to protect the privacy of an individual) currently has and previously had a traditional physical connection with a part of the claim area. The application meets this test condition.

S190B(8) No failure to comply with section 61A Met

No failure to comply with s61A: 190B(8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of s61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made. Reasons for the Decision For the reasons that follow I have formed the conclusion that there has been compliance with s61A and that the provisions of this section are met. s61A(1) – Native Title Determination

A search of the Native Title Register has revealed that there is no approved determination of native title in relation to the area claimed in this application

S61A(2) – Previous Exclusive Possession Acts

Schedule B of the amended application confirms that the application does not include any lands subject to a previous exclusive possession act as defined under s23B of the Native Title Act save where the Act allows those lands to be part of a native title determination application. Schedule B of the application also specifically excludes private freehold land past or present at the date the application was lodged, save where the Native Title Act provides that land may be included in the application. I am not aware of any such allowance under the Native Title Act, where current or former private freehold can be included in the claim area, and consequently find that the statement excludes all private freehold from the claim area.

For acts attributable to the Commonwealth that may be previous exclusive possession acts I would need to consider whether the act falls within the definition of a previous exclusive possession act under s23B of the Native Title Act. If the act is attributable to the State of Victoria and may be a previous exclusive possession act then I need to refer to the Victorian Government’s Land Titles Validation Act 1994 which was amended by the Land Titles Validation (Amendment) Act 1998, on 24 November 1998. However, when defining what a previous exclusive possession act is (attributable to the State) the Land Titles Validation Act refers to the Commonwealth’s definition under s23B of the Native Title Act. Consequently, for the purposes of s61A(2), I must consider whether there are any areas in the claim area that contain previous exclusive possession acts as defined by s23B of the Native Title Act, and whether those acts are attributable to the State or Commonwealth.

I have received the following submissions from the Victorian Government Solicitor in relation to this issue :

· 4 January 1999 – Letter and enclosing a table of freehold land and waters, chronology of allotments over which freehold has been granted, table of private freehold allotments, and a folder (3) of Crown grants and certificates of title; · 4 January 1999 – Letter containing further leasehold information; · 25 February 1999 – Letter and further leaseholder information; · 25 March 1999 - Letter and copies of lease documents; · 30 April 1999 – Letter and copies of lease documents; and · 4 June 1999 – Letter, submissions and further freehold information.

I accept the Victorian Government Solicitor’s submissions, which show that within the boundary of the claim area there exist areas of freehold land and areas that may be considered to be previous exclusive possession acts. However, I find that where such areas exist within the external boundary, they have been removed from the area of the application by the exclusions contained at Schedule B of the application.

The application claims areas of land and waters that are subject to a Crown to Crown grant, where the grant or vesting did not extinguish native title at common law; or the use of the land has not extinguished native title at common law. I find that the applicant is able to claim these areas of land where extinguishment has not occurred. Where there has been extinguishment of native title on areas of land the subject of a Crown to Crown grant, I find those areas to have been excluded from the claim area.

I am satisfied that the applicants have excluded any areas of land from the claim area where there has been a previous exclusive possession act as defined by the Native Title Act and the Land Titles Validation Act.

S61A(3) – Previous Non-Exclusive Possession Acts

Schedule B(b) confirms that the application does not include a claim for exclusive possession over previous non-exclusive possession act areas as defined under s23F of the Act, save where the Act and/or common law allows such a claim to be part of a native title determination application.

The application complies with this condition. S190B(9) No extinguishment etc. of claimed native title Met

Ownership of minerals, petroleum or gas wholly owned by the Crown: 190B(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (a) (a) to the extent that the native title rights and interests claimed consist or include ownership of minerals, petroleum or gas - the Crown in right of the Common-wealth, a State or Territory wholly owns the minerals, petroleum or gas;

Reasons for the Decision

At Schedule E of the application the applicants have asserted a right to natural resources which includes the right of ownership and the right to take, use and enjoy resources which includes ochre, stone, minerals and sub-surface materials.

However, at Schedule Q of the application, the applicants state that:

“To the extent that the application includes native title rights and interests consisting of or including ownership of minerals, petroleum or gas, the application does not consist of or include ownership of minerals, petroleum or gas where the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas.”

I am satisfied that this statement ensures that the application complies with the requirements of S190B(9)(a). I am not otherwise aware of any intention to claim ownership of minerals, petroleum or gas wholly owned by the Crown.

Exclusive possession of an offshore place: 190B(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (b) (b) to the extent that the native title rights and interests claimed relate to waters in an offshore place - those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place;

Reasons for the Decision

The area claimed does not include any offshore area. It is therefore not necessary for me to consider this section further as it is not relevant.

The application passes this condition

Other extinguishment: 190B(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (c) (c) in any case - the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).

Reasons for the Decision The application and accompanying documents do not disclose, nor am I otherwise aware, that the application contravenes the criteria set out in s190B(9)(c).

There may be areas within the boundary of the application, where on certain portions of land native title rights and interests have otherwise been extinguished. It appears that even if areas of the type prohibited by this section (s190B(9)(c)) are located within the external boundary of the area of the amended application, such areas have been excluded from the claim area by virtue of Schedule B of the application. Refer also to my reasons at s190B(8).

I am satisfied that the application meets the requirements of section 190B(9)(c).

S190C(2) Information etc required by sections 61 & 62 Met

Information, etc, required by section 61 and section 62: 190C(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

Details required in section 61

61(3) Name and address for service of applicants

Reasons relating to this sub-condition

The application identifies the names of the two applicants William John Kennedy (Senior) and Kaylene Pamela Clarke. The address for service for the applicants is provided at page 14 of the application form.

Application passes the condition.

61(4) Names persons in native title claim group or otherwise describes the persons so that it can be ascertained whether any particular person is one of those persons

Reasons relating to this sub-condition

The application does not name the persons in the native title claim group. A description of the group is at Schedule A. In my view, the description of the native title claim group is sufficient for it to be ascertained whether any particular person is one of those persons. I have reached this view for the reasons contained in my decision at s190B(3).

Application passes the condition. 61(5) Application is in the prescribed form Note that in relation to pre 30.09.98 applications, the application does not need to be in the prescribed form as required by the amended Act. Note also that pre 30.09.98 applications are deemed to have been filed in the Federal Court., lodged in the Federal Court, contains prescribed information Note also that "prescribed information" is that which is required by s62 as set out in the text of this reasons document under "Details required in section 62(1)"., and is accompanied by prescribed documents and fee

Reasons relating to this sub-condition

The application is in the form prescribed by Regulation 5(1)(a) Native Title (Federal Court) Regulations 1998. As required under section 61(5)(b), the amendments to the application were filed in the Federal Court. I refer to my introductory comments, which outline details of the original application lodged with the Tribunal on 28 December 1995, and the recent amendments that have been made to the application in the Federal Court. I also note that the Federal Court has not required the applicants to lodge a consolidated version of the application, prior to its approval of amendments, and it forwarding those amendments to the Tribunal.

The application meets the requirements of section 61(5)(c) and contains all information as prescribed in section 62. I refer to my reasons for recommendation in relation to those sections.

As required by section 61(5)(d) the application is accompanied by affidavits as prescribed by section 62(1)(a). I refer to my reasons for recommendation in relation to that section of the Act. The application is also accompanied by a map as prescribed by section 62(1)(b). I refer to my reasons for recommendation in relation to section 62(2)(b) of the Act.

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

For the reasons outlined above, it is my view that the requirements of s61(5) are met.

Application passes the condition.

Details required in section 62(1)

62(1)(a) Affidavits address matters required by s62(1)(a)(i) – s62(1)(a)(v)

Reasons relating to this sub-condition Affidavits have been received from both applicants. Competent witnesses have witnessed these affidavits. They are identical in content and I am satisfied that they address the matters required by s 62(1)(a)(i) - (iv) at paragraphs (a) to (d) of the affidavits respectively.

Section 61(1)(a)(v) requires the applicants to state the basis on which the application is authorised. Paragraph (e) of each of the affidavits does not state the basis of the authority, but refers to Attachment R of the application, which is the certification document from the Mirimbiak Nations Aboriginal Corporation, dated 28 May 1999. (I note that an earlier certificate of authorisation, dated 18 March 1999, was filed with the earlier amendment to the application on 22 March 1999).

The Victorian Government’s submission of 4 June 1999 argues that the affidavits do not satisfy the formal requirements, as they do not state the basis of the applicants’ authority.

Attachment R of the application sets out the basis on which the applicants are authorised. In particular, the certificate states that a decision making process was adopted by the group. The process was observed to have been exercised and resulted in the authorisation of the applicants.

I am satisfied that the statement at paragraph (e) of the affidavits, when read in conjunction with Attachment R, complies with the requirements of s62(1)(a)(v).

For the reasons set out above, I have formed the view that the application complies with the requirements of this subsection.

Application passes the condition.

62(1)(c) Details of any traditional physical connection (information not mandatory)

Comment on details provided

The applicants have provided details of traditional physical connection at Schedule M of the application.

Application passes the condition.

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

62(2)(a)(i) Information identifying the boundaries of the area covered

Reasons relating to this sub-condition

At Schedule B, the applicants have provided information identifying the external boundary of the claimed area. I note that the area of the boundaries of the application are identified by reference to the full set of application documents which are set out in my reasons for decision provided under s190B(2). These documents are taken to be the application as it currently stands before the Federal Court (see my introductory comments under Brief History of the Application).

I am satisfied that the boundaries of the area covered by the application are sufficiently identified by these documents.

Aplication passes this condition. 62(2)(a)(ii) Information identifying any areas within those boundaries which are not covered

Reasons relating to this sub-condition

The applicants have provided information identifying the internal boundaries of the claim area, at Schedule B. I note also that the applicants have built up the area of the application by identifying parcel by parcel the areas that are included in the claim area within each Parish. This provides a high level of certainty about the areas within the external boundary that are included in the claim area. In addition Schedule B of the application excludes certain types of land tenure from the claim area, as follows :

“a) the area covered by the application:

Part A6 of the original Application describes the area covered by this Application and is incorporated into Schedule of this Application as amended. The Parish plan maps and other information referred to in. or attached to, Part A6 of the original Application are also incorporated into Schedule B.

Land

The claimed area does not include any private freehold land past or present at the date this application was lodged, save waters where the Native Title Act provides that that land may be included in the application.

Crown Grants

The claim area may include land or waters that have been granted to or had an interest vested in the Crown in any capacity or a statutory authority but does not include land or waters where: · The grant or vesting extinguishes native title at common law; or · The use of the land extinguishes native title at common law.

AND

b) any areas within those boundaries that are not covered by the application:

The application does not include any lands the subject of a previous exclusive possession act defined under section 23B of the Native Title Act 1993 (the Act) save where the Native Title Act 1993 (including sections 47, 47A and 47B) and/or the common law allows those lands to be part of a Native Title Determination Application.

The Application does not include a claim for exclusive possession over previous non-exclusive possession act areas as defined in section 23F of the Native Title Act 1993, save where the Native Title Act 1993 and/or the common law allows such a claim to be part of a Native Title Determination Application.”

I am satisfied that the information provided in the application identifies the areas within the external boundary of the application, that are not covered by the application. See also my reasons for decision in relation to test conditions contained at 190B(2).

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

Reasons relating to this sub-condition The applicants have provided a map at Schedule B, Attachment C. See also my reasons provided under s190B(2). The map provided by the applicants is poor in quality, but includes a scale and also identifies each Parish that the application covers parts of. The boundary lines drawn on the map are also of a poor quality as they are drawn with a thick pen. However, it is clear to me from the map that the boundary of the application is intended to follow the boundaries of certain Parishes. Each of these Parishes is well defined and the boundaries of each are shown on the map.

I find that the application also includes individual Parish maps from which it is possible to identify each parcel of land that is claimed in the application. The Parish maps were attached to the original application and, as referenced above, remain in the application by virtue of an amendment ordered by the Federal Court on 4 June 1999. The combination of these maps show the external boundaries of the application.

I find that the map showing the external boundaries is satisfactory.

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

Reasons relating to this sub-condition

The requirements of s62(2)(c) can be read widely to include all searches conducted by any person or body. However, I am of the view that under this condition I need only be informed of searches conducted by the applicant in order to be satisfied that the application complies with this condition. It would be unreasonably onerous to expect applicants to have knowledge of, and obtain details about all searches carried out by every other person or body.

The amended applications accepted by the Court rely on the searches that were included with the original application. At section A8 of the original application there are details of numerous searches conducted by the applicants. I am of the view that details of all searches have been attached to the application, and as such the application complies with this condition.

62(2)(d) Description of native title rights and interests claimed

Reasons relating to this sub-condition

Schedule E of the application identifies nine particular native title rights and interests that are claimed by the applicants. The Federal Court’s orders of 30 March 1999 do not make it clear whether the rights and interests contained in the amendment to the applications are to replace or add to the rights and interests claimed in the original application. I am satisfied that the rights and interests in the amended application are consistent with those originally claimed, and I need only look at the rights and interests claimed in the amended application.

In accordance with section 62(2)(d), the rights and interests claimed do not merely consist of a statement to the effect that the native title rights and interests that may exist or that have not been extinguished at common law. The description is a list of individually identifiable rights and interests. I have outlined these rights and interests claimed in my reasons for decision in relation to s190B(4). I note that at Schedule T of the application the applicants, in providing information to establish prima facie each of the rights and interests claimed, have made reference to an additional native title right (the right to manage their cultural and intellectual property). As this right is not detailed at Schedule E I do not consider that it is a right or interest claimed by the applicants.

The application complies with this condition.

62(2)(e)(i) Factual basis – claim group has, and their predecessors had, and association with the area

Reasons relating to this sub-condition The applicants assert at Schedule F of the application that they have, and their predecessors had, an association with the area. Affidavits of (Name deleted to protect the privacy of an individual) and (Name deleted to protect the privacy of an individual), both dated 16 March 1999, provide further information in relation to their association with the area, and the association of their predecessors.

I am satisfied that the application sets out a general description of the factual basis on which the asserted native title rights and interests claimed exist. This matter is tested further in relation to s190B(5).

The application complies with this condition.

62(2)(e)(ii) Factual basis – traditional laws and customs exist that give rise to the claimed native title

Reasons relating to this sub-condition

Schedule F of the application outlines the factual basis for the assertion that traditional laws and customs exist that give rise to the claimed native title. Affidavits of (Name deleted to protect the privacy of an individual) and (Name deleted to protect the privacy of an individual), both dated 16 March 1999, provide further information in relation to the existence of traditional laws and customs.

The application complies with this condition.

62(2)(e)(iii) Factual basis – claim group has continued to hold native title in accordance with traditional laws and customs

Reasons relating to this sub-condition

Schedule F of the application outlines the factual basis for the assertion that the native title claim group has continued to hold native title in accordance with traditional laws and customs. Affidavits of (Name deleted to protect the privacy of an individual) and (Name deleted to protect the privacy of an individual), both dated 16 March 1999, provide further information in relation to the existence of traditional laws and customs and continued observance of those laws and customs that give rise to the claimed native title.

The application complies with this condition.

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

Reasons relating to this sub-condition

Schedule G of the application provides (general) details of activities that the native title claim group carries out in relation to the area claimed.

In my view the description of activities is sufficient to comply with the requirements of 62(2)(f). 62(2)(g) Details of any other applications to the High Court, Federal Court or a recognised State/Territory body the applicant is aware of (and where the application seeks a determination of native title or compensation)

Reasons relating to this sub-condition

Schedule H of the application states that :

“Native title determination applications were filed in the Federal Court as VG6009/98, VG 6018/98 and VG60036/98.

The areas included in each application do not overlap one another.”

I am satisfied that the application complies with this condition.

62(2)(h) Details of any S29 Notices (or notices given under a corresponding State/Territory law) in relation to the area, and the applicant is aware of

Reasons relating to this sub-condition

Details of any s29 notices in relation to the area are provided and are listed at Schedule I of the application. I am not . aware of any other notices that have been issued over the claim area.

Application passes the condition

Reasons for the Decision

The application meets the requirements of s 190C(2), for the reasons detailed above.

S190C(3) No previous overlapping claim groups Met

Common claimants in overlapping claims: 190C(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if: (a) the previous application covered the whole or part of the area covered by the current application; and (b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and (c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

Reasons for the Decision The application states at Schedule H that :

“Native title determination applications were filed in the Federal Court as VG6009/98, VG 6018/98 and VG60036/98.

The areas included in each application do not overlap one another.”

The applicants have not identified any overlapping applications. Advice from the Tribunal’s Geospatial Unit confirms that there are no recorded overlapping applications.

I am satisfied that this application is not overlapped by any other application.

Consequently the application complies with this condition.

S190C(4) Identity of claimed native title holders Met

Certification and authorisation: 190C(4)(a) The Registrar must be satisfied that either of the following is the case: or (a) the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait 190C(4)(b) Islander body that could certify the application in performing its functions under that Part; or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Reasons for the Decision

The application has been certified by the relevant representative Aboriginal/Torres Strait Islander body. There are two certificates that have been provided by Mirimbiak Nations Aboriginal Corporation in relation to this application :

1. 18 March 1999 certificate signed by (Name deleted to protect the privacy of an individual), Chief Executive Officer 2. 28 May 1999 certificate signed by (Name deleted to protect the privacy of an individual), delegate of the Board of Directors

Mirimbiak Nations Aboriginal Corporation is a gazetted Representative Aboriginal/Torres Strait Islander Body for the State of Victoria, and the entire area claimed by this application is within the boundaries of the Representative Body area.

I have assessed both certificates, which are similar in content, against the requirements of s202(7) of the Native Title Act 1993 and consider that both comply with those requirements. Consequently, I am satisfied that the certification fulfils the requirements of s190C(4) of the Act.

The application complies with this condition.