Registration Test Decision

Registration test decision

Application name Bindunbur

Name of applicant Ernest Damien Manado, Cecilia Churnside, Alec Dann, Betty Dixon, Walter Koster, Phillip McCarthy

NNTT file no. WC2013/011

Federal Court of Australia file no. WAD359/2013

Date application made 20 September 2013

Date application last amended 3 December 2013

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: 13 December 2013

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Heidi Evans Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cwlth) under an instrument of delegation dated 30 July 2013 and made pursuant to s. 99 of the Act.

Shared country, shared future Reasons for decision Introduction [1] This document sets out my reasons, as the Registrar’s delegate, for the decision to accept the application for registration pursuant to s. 190A of the Act. [2] 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 the day this decision is made, unless otherwise specified. Please refer to the Act for the exact wording of each condition.

Application overview and background [3] The Registrar of the Federal Court of Australia (the Court) gave a copy of the Bindunbur claimant application to the Native Title Registrar (the Registrar) on 4 December 2013 pursuant to s. 64(4) of the Act. This has triggered the Registrar’s duty to consider the claim made in the application under s. 190A of the Act. [4] The application amends the formerly-named Bindunbur (Area A) application (WAD359/2013) so as to combine the area of that application with the area of the Bindunbur (Area C) application (WAD425/2013). I have, therefore, in the interests of clarity in my reasons below, adopted the term ‘Amended Bindunbur application’ to refer to the application subject of my consideration here. [5] The Bindunbur (Area A) application was filed in the Court on 20 September 2013 and accepted for registration pursuant to s. 190A(6) by me on 26 November 2013. Consequently, that application appears in an entry on the Register of Native Title Claims (the Register). [6] The Bindunbur (Area C) was filed in the Federal Court on 14 November 2013. At the time at which the Amended Bindunbur application was filed, the Bindunbur (Area C) application was still being considered by me against the conditions of the registration test. As a decision whether to register the Bindunbur (Area C) application has not yet been made, I note that the formerly separate Bindunbur (Area C) application has not been accepted for registration and does not appear in an entry on the Register. [7] I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply to this claim for the following reasons:  subsection 190A(1A) does not apply as the application was not amended because an order was made under s. 87A by the Federal Court; and  subsection 190A(6A) does not apply because an effect of the amendment, namely, to combine the two Bindunbur native title determination applications (WAD359/2013 and WAD425/2013) falls outside the exceptions to undertaking a full registration test that are set out in subparagraphs 190A(6A)(d)(i) to (v).

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[8] Therefore, in accordance with subsection 190A(6), I must accept the claim for registration if it satisfies all of the conditions in 190B and 190C of the Act. This is commonly referred to as the registration test. [9] The application is affected by two s. 29 notices, being STP-EPA-0094 and STP-EPA-0092, both of which have a notification date of 14 August 2013. It is my understanding, therefore, that I must use my best endeavours to apply the conditions of the registration test by 14 December 2013.

Registration test [10] 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 among 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. [11] Pursuant to ss. 190A(6) and (6B), the claim in the application must be accepted for registration because it does satisfy all of the conditions in ss. 190B and 190C.

Information considered when making the decision [12] 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. [13] 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. [14] All of the information and documents considered in reaching my decision are set out below:  Amended Bindunbur native title determination application (WAD359/2013);  Bindunbur (Area A) native title determination application (WAD359/2013);  Additional material provided by the applicant in relation to the Bindunbur (Area A) application;  Bindunbur (Area C) native title determination application (WAD425/2013);  additional material provided by the applicant in relation to the Bindunbur (Area C) application;  geospatial assessment and overlap analysis dated 5 December 2013 (GeoTrack: 2013/2394);  emails dated 3 December 2013 from the applicant’s legal representative specifying the information to be considered by the delegate in relation to the amended application;  email dated 2 October 2013 from the applicant’s legal representative regarding three proposed Bindunbur claims over the middle Dampier Peninsula;  letters dated 5 December 2013 to the applicant, the State of Western Australia (the State) and the relevant representative body for the area, the Kimberley Land Council (the KLC), pursuant to ss. 66(2) and 66(2A).

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[15] 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. [16] Also, I have not considered any information that may have been provided to the Tribunal in the course of mediation in relation to this or any other claimant application. [17] I note that I am also the delegate who very recently considered the original Bindunbur application (the Bindunbur (Area A) application was placed on the Register on 26 November 2013), and that I am also the delegate who was considering the former Bindunbur (Area C) application before the current application was filed. [18] As discussed in my reasons for the decision to accept the Bindunbur (Area A) application for registration, that application was the first of 3 applications that were to be filed by the KLC on behalf of the Bindunbur native title claim group over the area of the middle Dampier Peninsula. A map showing the claim region, that is, the area subject of the three proposed applications, and the area of the current application, appears at Attachment C. [19] As the legal representative for the native title claim group, the KLC informed the case manager that in order to meet the timeframes imposed by the relevant s. 29 notices, the applications for all 3 proposed claims would be identical notwithstanding the area that they were to cover. [20] In applying the conditions of the registration test to the Amended Bindunbur application before me, I note that I am constrained by a relatively tight timeframe. The application was tested in its original form only within the last 3 weeks and, having considered the content of the two former applications against the content of the amended application, I am satisfied that the form of those applications is identical (aside from the area covered by the applications), and that the only amendment to the current application is that the application area now also includes the area covered by the former Bindunbur (Area C) application. There are also some minor clarifications surrounding the use of the term ‘claim area’ and ‘claim region’ in the factual basis material. [21] I note that there has been no change to the description of the native title claim group, nor to the rights and interests claimed by the group. Similarly, there is no change in relation to certification of the application, nor to the factual basis material contained in Schedules F, G and M. [22] On this basis, in the circumstances, I have considered it appropriate for me to rely on and refer to my reasons in relation to certain conditions of the registration test in the decision to accept the former Bindunbur (Area A) application. The conditions at which I have taken this approach are identified in my reasons below. That decision (dated 26 November 2013) is, therefore, attached to these reasons, at Attachment B.

Procedural fairness steps [23] 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

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are made in a fair, just and unbiased way. I note that the common law duty to afford procedural fairness may be excluded by express terms of the statute under which the administrative decision is made or by any necessary implication—Hazelbane v Doepel [2008] FCA 290 at [23] to [31]. The steps that I and other officers of the Tribunal have undertaken to ensure procedural fairness is observed, are set out below. [24] By letters dated 5 December 2013 the case manager provided both the State and the KLC with a copy of the application. The State was invited to make submissions in relation to the registration testing of the application by 9 December 2013. [25] Also included within the letter to the State were copies of edited versions of the additional material that had been provided directly to the Registrar by the applicant in relation to the former separate Bindunbur applications. These edited versions were prepared by the applicant at the State’s request in relation to the former applications, and allowed for the State to be provided directly with the material without the requirement for a confidentiality undertaking. Upon filing of the Amended Bindunbur application, the applicant’s legal representative specifically directed the Registrar’s delegate to this material for his/her consideration in relation to applying the conditions of the registration test to the amended application. The State was provided with the same timeframe within which to provide any submissions on this material. [26] The State did not make any submissions or provide any correspondence in relation to the application or additional material.

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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. [27] 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 below. [28] In reaching my decision for the condition in s. 190C(2), I understand that this condition is procedural only and simply requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss. 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s. 190C(2)— Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] and also at [35] to [39]. In other words, does the application contain the prescribed details and other information? [29] It is also my view that I need only consider those parts of ss. 61 and 62 which impose requirements relating to the application containing certain details and information or being accompanied by any affidavit or other document (as specified in s. 190C(2)). I therefore do not consider the requirements of s. 61(2), as it imposes no obligations of this nature in relation to the application. I am also of the view that I do not need to consider the requirements of s. 61(5). The matters in ss. 61(5)(a), (b) and (d) relating to the Court’s prescribed form, filing in the Court and payment of fees, in my view, are matters for the Court. They do not, in my view, require any separate consideration by the Registrar. Paragraph 61(5)(c), which requires that the application contain such information as is prescribed, does not need to be considered by me under s. 190C(2), as I already test these things under s. 190C(2) where required by those parts of ss. 61 and 62 which actually identify the details/other information that must be in the application and the accompanying prescribed affidavit/documents. [30] Turning to each of the particular parts of ss. 61 and 62 which require the application to contain details/other information or to be accompanied by an affidavit or other documents:

Native title claim group: s. 61(1) [31] Noting that s. 190C(2) requires me to consider only the content of the application, and not its merit, it is my understanding that the requirement at this condition of the registration test is merely whether the application ‘sets out the native title claim group in the terms required by s. 61’ – Doepel at [36]. It is only, therefore, where on the face of the application itself it appears that not all the persons in the group have been included, or that the group described is a sub-group of the native title claim group, that the application will not meet the requirements of s. 190C(2) – Doepel at [36].

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[32] A description of the native title claim group appears at Schedule A of the application. Having turned my mind to that description, I am of the view that there is nothing on the face of it that indicates that not all of the persons in the group have been included, nor do I consider that it seeks to exclude certain persons from the group. [33] I am satisfied, therefore, that the application contains all details and other information required by s. 61(1).

Name and address for service: s. 61(3) [34] The name of those persons comprising the applicant appear immediately above Part A of the application. The address for service of the applicant appears at Part B of the application. [35] The application contains all details and other information required by s. 61(3).

Native title claim group named/described: s. 61(4) [36] The task at s. 61(4) for the purposes of s. 190C(2) is again, a procedural one, and does not allow me to consider the correctness of the information but merely whether the application contains the information prescribed – Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 (Wakaman) at [34]. This was confirmed in Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007), where Dowsett J commented that the requirement was not that the Registrar consider whether the description is ‘sufficiently clear’, but merely whether one is provided – at [31] and [32]. [37] As stated above, a description of the native title claim group appears at Schedule A of the application. [38] The application contains all details and other information required by s. 61(4).

Affidavits in prescribed form: s. 62(1)(a) [39] The application is accompanied by six affidavits sworn by each of the persons comprising the applicant. Each of those affidavits is signed, dated and has been competently witnessed. [40] Turning to the content of those affidavits, I note that they all contain certain identical statements pertaining to the matters set out at ss. 62(1)(a)(i) to (v). It is my view that these statements satisfy the requirement of the condition. [41] The application is accompanied by the affidavit required by s. 62(1)(a).

Application contains details required by s. 62(2): s. 62(1)(b) [42] The application contains all details and other information required by s. 62(1)(b). [43] The application does contain the details specified in ss. 62(2)(a) to (h), as identified in the reasons below.

Information about the boundaries of the area: s. 62(2)(a) [44] Schedule B refers to Attachment B of the application as containing a written description of the external boundary of the land and waters covered by the application. Attachment B is titled ‘Bindunbur – External boundary description’ and contains the relevant description. Schedule B

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also lists a number of general exclusion clauses, that is, areas falling within the external boundary of the application area that are not covered by the application. The application contains all details and other information required by s. 62(2)(a).

Map of external boundaries of the area: s. 62(2)(b) [45] Schedule C refers to Attachment C as containing a map showing the external boundary of the application area. Attachment C is titled ‘Map of the Claim Area and Claim Region’ and contains the required map. (That map now appears at Attachment C of this decision). [46] The application contains all details and other information required by s. 62(2)(b).

Searches: s. 62(2)(c) [47] Schedule D of the application states that no searches have been carried out by the Applicant to determine the existence of any non-native title rights and interests in relation to the land and waters covered by the application. [48] The application contains all details and other information required by s. 62(2)(c).

Description of native title rights and interests: s. 62(2)(d) [49] A description of the native title rights and interests claimed in relation to the particular land and waters of the application area appears at Schedule E of the application. [50] The application contains all details and other information required by s. 62(2)(d).

Description of factual basis: s. 62(2)(e) [51] A general description of the factual basis on which it is asserted that the native title rights and interests claimed exist is contained in Schedule F of the application. [52] The application contains all details and other information required by s. 62(2)(e).

Activities: s. 62(2)(f) [53] Schedule G contains information about the activities currently undertaken by members of the native title claim group in relation to the land and waters of the application area. [54] The application contains all details and other information required by s. 62(2)(f).

Other applications: s. 62(2)(g) [55] Schedule H of the application provides that no other applications have been made in relation to any part of the application area. [56] The application contains all details and other information required by s. 62(2)(g).

Section 24MD(6B)(c) notices: s. 62(2)(ga) [57] Schedule HA provides that the applicant is not aware of any such notices. [58] The application contains all details and other information required by s. 62(2)(ga).

Section 29 notices: s. 62(2)(h)

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[59] The application is affected by two section 29 notices, details of which are set out in Schedule I. [60] The application contains all details and other information required by s. 62(2)(h). 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. [61] In undertaking the task at s. 190C(3), it is my understanding that the requirement for me to consider whether I am satisfied in the terms set out by that provision only arises where there is another application that meets all three of the criteria set out in subparagraphs (a) to (c) – see Western Australia v Strickland [2000] FCA 652 (Strickland FC) at [9]. [62] Regarding subparagraph (a) of s. 190C(3), I have had regard to the geospatial assessment which provides that there are two applications shown in the Schedule of Applications – Federal Court that overlap part of the application area. These are the Bindunbur (Area A) (WAD359/2013) and Bindunbur (Area C) (WAD425/2013) applications. [63] As discussed in the Application Overview in my reasons above, it is these two applications that now comprise the Amended Bindunbur application that is before me. [64] Regarding subparagraph (b) of s. 190C(3), the requirement is that I consider whether those previous applications were on the Register of Native Title Claims (the Register) when the current application was made. Relevant to my consideration, therefore, is the time at which the current application ‘was made’. [65] I note that the application before me is an amended application, provided to the Registrar pursuant to s. 64(4) of the Act. Section 64(2) provides for a special type of amended application, where two pre-existing applications are combined. My general understanding of the application of the registration test provisions is that where an application is amended, or where it is combined with another application, the date at which it was made is in fact the date at which the original pre-combined applications were first filed in the Federal Court – Strickland FC at [12] to [22], [35], and [41] to [52]. [66] The geospatial assessment provides that only one of the previous applications appears on the Register, namely the Bindunbur (Area A) application. Noting that I am also the delegate who was considering the Bindunbur (Area C) application for registration, I am aware and can confirm that that is a new application and one which has never appeared in an entry on the Register. For

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that reason, it is only the Bindunbur (Area A) application to which I have directed my attention regarding the requirement at s. 190C(3). [67] The former Bindunbur (Area A) application was filed in the Federal Court on 20 September 2013. I take this date, therefore, as the date at which the current Amended Bindunbur application was made. [68] The previous application, the Bindunbur (Area A) application, was placed on the Register on 26 November 2013. [69] Consequently, I am satisfied that at the time at which the current application was made, there was no previous application that was on the Register of Native Title Claims. [70] The application satisfies the condition of s. 190C(3). Subsection 190C(4) Authorisation/certification Under s. 190C(4) the Registrar/delegate must be satisfied that either: (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.

Note: The word authorise is defined in section 251B.

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requirements set out in s. 190C(4)(a) are met because the application has been certified by each representative body that could certify the application.

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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. [75] With reference to the wording of s. 190B(2), it is to the information contained in the application required by ss. 62(2)(a) and (b) to which I have directed my attention in considering the application at this condition of the registration test. That information is contained in Attachment B to Schedule B and Attachment C to Schedule C. [76] As stated above, Attachment B contains a written description of the external boundary of the application area. Attachment B is titled ‘Bindunbur – External boundary description’ and states that the application area covers all the land and waters within an external boundary described by way of a metes and bounds description referencing land parcels, topographic features, Local Government and native title determination application boundaries and coordinate points shown to six decimal points. [77] Schedule B of the application sets out a number of general exclusion clauses, that is, areas within the external boundary of the application that are not covered by the application. Regarding this approach to describing those areas falling within the external boundary that are not covered by the application, it is my view that such an approach is acceptable for the purposes of s. 190B(2) – see Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) at [50] to [55]. [78] Attachment C to Schedule C is untitled and contains a coloured copy of a map with the following features:  the application area depicted by a bold red outline;  the claim region (the entirety of the proposed Bindunbur regional claim) depicted as a broken orange outline;  cadastral background with adjoining native title determinations and applications;  scalebar, northpoint, coordinate grid and legend; and  notes relating to the source of the data used to prepare the map. [79] That map now appears at Attachment C to this decision. [80] The geospatial assessment and overlap analysis prepared in relation to the map and description dated 5 December 2013 (Geotrack: 2013/2394) concludes that the map and description are consistent and identify the application area with reasonable certainty. Having turned my mind to the information contained in the application, as set out above, I agree with that assessment and consequently, have formed the view that I am 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 and waters.

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[81] The application satisfies the condition of s. 190B(2). 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. [82] Schedule A contains a description of the native title claim group, in accordance with subsection (b) of s. 190B(3). Having turned my mind to that description, and to the descriptions of the native title claim group for the former Bindundur (Area A) and Bindunbur (Area C) applications, I am satisfied that the description is identical to that in the original application. [83] On that basis, for the same reasons set out at s. 190B(3) in my decision to accept the Bindunbur (Area A) application for registration made 26 November 2013 (refer Attachment B), I am satisfied that the persons in the group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. [84] The application satisfies the condition of s. 190B(3). 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. [85] As stated above, a description of the native title rights and interests claimed in relation to the application area, as required by s. 62(2)(d), is contained in Schedule E of the application. Having turned my mind to the content of that description, and the content of the descriptions appearing in Schedule E of the former Bindunbur (Area A) application and the former Bindunbur (Area C) application, I am satisfied that there has been no change to that description. [86] On that basis, for the same reasons set out at s. 190B(4) of my decision to accept the former Bindunbur (Area A) application (Attachment B at [97]), I have formed the view in relation to the current application that I am satisfied that the description contained in the application is sufficient to allow the native title rights and interests to be readily identified. [87] The application satisfies the condition of s. 190B(4). 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:

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(a) that the native title claim group have, and the predecessors of those persons had, an association with the area, and (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. [88] I have only recently set out my understanding of the case law surrounding the task of the Registrar’s delegate at s. 190B(5), in my decision to accept the former Bindunbur (Area A) application for registration on 26 November 2013. That understanding is set out at paragraphs [106] to [109] of that decision at Attachment B. In the interests of brevity, I here adopt and refer to those paragraphs as setting out my understanding of the law for the purposes of my consideration of the current application at s. 190B(5). The applicant’s factual basis material [89] Upon filing of the current Amended Bindunbur application, the applicant’s legal representative contacted the case manager directly (email 3 December 2013) and advised the material that the delegate was to have regard to in her consideration of the application, and which had only recently been provided to the delegate in relation to the former Bindunbur (Area A) and Bindunbur (Area C) applications. [90] The applicant’s factual basis material, and the information to which I have had regard in considering the application at this condition of the registration test, therefore, comprises:  schedules E, F, G and M of the Amended Bindunbur Form 1;  the six affidavits accompanying the original Bindunbur (Area A) application;  the additional material provided directly to the Registrar in relation to the original Bindunbur (Area A) application on 28 October 2013; and  the additional material provided directly to the Registrar in relation to the former Bindunbur (Area C) application on 26 November 2013. [91] I consider each of the three assertions set out in the three paragraphs of s. 190B(5) in turn in my reasons below. The task at s. 190B(5)(a) [92] The task of the Registrar’s delegate at s. 190B(5)(a) was considered by French J in Martin v Native Title Registrar [2001] FCA 16 (Martin). In that case, His Honour discussed the deficient material that had been before the delegate and the delegate’s finding that the requirement of the condition was not met in the following way: He looked to the positive material put before him asserting a factual basis for association and found that it disclosed association only with particular areas… There was simply a lack of material to support an association, physical or spiritual, with the entire area claimed. He was not obliged to accept the very broad statements contained in Schedule F which have no geographical particularity – at [26]. [93] Dowsett J in Gudjala 2007 also gave some indication of the type of factual basis material that may be required to address the assertion at s. 190B(5)(a). His Honour’s decision suggests that the following information may be necessary in satisfying this condition of the registration test:

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 asserted facts that speak to the claim group as a whole presently having an association with the area, though it is not a requirement that all members must have such an association at all times; and  asserted facts that speak to an association of the predecessors of the whole group and the area over the period since sovereignty – at [52]. The applicant’s factual basis material – s. 190B(5)(a) [94] As stated above, on 26 November 2013 (less than one month ago), I made a decision to accept for registration the former Bindunbur (Area A) application. I set out in detail my reasons for forming the view that the material before me in relation to that application was sufficient to support the assertion at s. 190B(5)(a) of an association between the group and their predecessors with the land and waters of the area covered by that application. Those reasons are contained in paragraphs [113] to [145] of that decision, at Attachment B to this decision. [95] I note that in my consideration of the current application, the applicant’s legal representative has directed me to the same material that was the subject of my consideration in relation to the former Bindunbur (Area A) and Bindunbur (Area C) applications. I have had regard to the geospatial assessment for the current application, and am satisfied that the area covered by the application is confined to only the area of the former Bindunbur (Area A) and Bindunbur (Area C) applications. For that reason, in relation to the association of the group and their predecessors with the area covered by the former Bindunbur (Area A) application, I adopt and rely on my reasons in my decision to accept that claim for registration on 26 November 2013 set out at paragraphs [113] to [145] of Attachment B. [96] The area covered by the former Bindunbur (Area C) application covers a portion in the north-east of the middle Dampier Peninsula, comprising Beagle Bay and the surrounding region. The area of the former Bindunbur (Area C) application shares all of its south-western boundary with the former Bindunbur (Area A) application – see map at Attachment C. [97] Regarding an association of the group and their predecessors with the area covered by the former Bindunbur (Area C) application, I set out my reasons below regarding whether the factual basis is sufficient to support the assertion. [98] I have summarised the information that I consider relevant to the assertion at s. 190B(5)(a) as follows:  the area of the middle Dampier Peninsula is that part of the Peninsula bounded by the determinations of native title for the Bardi Jawi people, the Rubibi, and the Nyikina Mangala and it is this area that is referred to as the ‘claim region’ – Part 2 of the additional material at [2] (see also map at Attachment C);  ethnographic, linguistic and anthropological research in the area has long acknowledged the presence of Indigenous groups in the claim region identifying as Jabirr Jabirr, Nyombal, Nyul Nyul, Bardi, Nimanbur, Nyikina and Yawuru – Schedule F at [26];  this research dates as early as 1908 and includes references to known ancestors of the native title claim group – Schedule F at [26];  under the traditional laws and customs for the people of the region, the territorial divisions between local groups in the resource-rich coastal areas of the Peninsula are more defined,

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whereas the less resource-rich areas of the inner Peninsula are generally shared between those groups – Schedule F at [38] and [39];  members of the claim group primarily assert territorial rights and interests in relation to their buru, a localised area in which they hold rights and interests by way of cognatic descent from a person acknowledged to be from the area at the time of European settlement – Schedule F at [43] and [44];  early recordings of the landholding systems for the Peninsula note that a diverse group exploited the resources of the inland area – Part 2 of the additional material at [9];  that group included the apical ancestors and their descendants who accessed the area and travelled across it to attend regional meetings at places such as Yarp (adjacent to border of the application area) and Lake Louisa (inside the application area) – Part 2 of the additional material at [10];  the region of the claim area was inhabited from at least several millennia before sovereignty in Western Australia occurred in 1828 – Schedule F at [24];  contact with and impact upon the Bindunbur ancestors as a result of white settlement did not occur until the early 1880s – Schedule F at [25];  the members of the native title claim group and their predecessors have had a continuous presence in the claim region since sustained European settlement, including continuous conduct of activities such as the use of the resources of the area, in pursuit of their entitlements possessed under their traditional laws and customs. This use of resources from the area has been recorded in various historical sources – Schedule F at [27], [28] and Part 2 of the additional material at [13];  one way in which contact was maintained was through the employment of members of the group and their predecessors in pastoral work on various leases in the area, particularly the Beagle Bay pastoral lease – Part 2 of the additional material at [14];  this work brought young and old claimants together and provided them with a forum in which to teach about the country, including use of resources, traditional place names, sacred sites and rules about access to those places – Part 2 of the additional material at [14];  many members of the claim group and their predecessors were born in or lived for all or much of their lives within the claim region, and continue to live in the region today;  many ancestors of members of the claim group are buried in the claim region – Schedule F at [37];  the apical ancestors listed in Schedule A are persons known to be from the claim region at European settlement of the area, and who are also descended from those Indigenous people occupying the claim region at sovereignty – Schedule F at [33];  the members of the group consider themselves, pursuant to their traditional laws and customs , the ‘right’ people for and ‘owners’ of the area – Schedule F at [35];  the claimants believe these rights were inherited by the apical ancestors from their ancestors from time immemorial – Part 2 of the additional material at [6];  these beliefs have been handed down through the generations of the claimants’ predecessors to the claimants today – Part 2 of the additional material at [7]. [99] In addition to this, in the s. 62(1)(a) affidavits that accompany the application, claimants make statements about their burus, naming the location of that area, and giving details of their knowledge of that place. Those burus referred to within the s. 62(1)(a) affidavits that fall within or on the border of the application area include Ngarlan (the area around Beagle Bay) and Winawal

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(Sandy Point). In the affidavits, claimants describe the way in which they consider their rights and responsibilities in relation to their buru to have arisen by way of their descent from a particular apical ancestor. One example is the following statement by a claim group member: In the Dampier Peninsula, families have local areas of land and waters we call a burr. My burr is Ngarlan, the area around Beagle Bay. It is my country because it was my great grandfather’s country. I was shown that country as a child by my parents and the old people. They all played a part teaching me and the other children. They taught me about how to look after and use my country. I have looked after that country for all my life and although I lived most of my adult life at Broome and Derby, I go to my burr regularly to fish, camp, collect bush foods and pearl shells, and look after my country. My sisters and I have an outstation in Ngarlan burr. I know all the right things to do in that country because the old people told me and I have taught these things to my children and grandchildren – affidavit of Cecilia Mary Churnside at [3]. [100] In his affidavit, applicant person Walter Koster provides that he currently lives at Beagle Bay community, and while this is not his buru, he has lived most of his life there – affidavit of Walter Koster at [3]. [101] Material relating to the association of the named apical ancestors with the application area is provided in Appendix A of the additional material. That information includes that 12 of those apical persons can be associated with land and waters within or immediately adjacent to the application area, that is, they were persons who considered their country or their buru to be within the boundary of the application area. Historical information, as well as information from claimants themselves, is used to provide asserted facts about the association of those 12 persons with the following locations: Sandy Point, Alligator Creek, Banana Well, Lake Louisa, Beagle Bay, Middle Lagoon, Tappers Inlet, Perpendicular Head and southern Pender Bay. With reference to the Tribunal’s iSpatial database, I have confirmed that all of these locations fall within or immediately adjacent to the application area. [102] Further material in Appendix A and Appendix B of the additional material provides information pertaining to the personal lives of the apical ancestors and their descendants, and certain members of the claim group and their families. This includes information about these persons birth places, places of residence, activities undertaken by the persons and their families on the application area, ways in which group members have been taught and continue to teach the traditional laws and customs of the group in relation to the application area, and these persons’ knowledge of dreamtime/creation stories for places within the application area. [103] For example, Appendix B of the additional material provides that claimant Stephen Victor was born at Beagle Bay in 1944 and is a Nyul Nyul man. His father was also born at Beagle Bay and the material states that Stephen is aware that Beagle Bay was the main place where Nyul Nyul People would meet for ceremonies and to exchange seafood and other bush tucker. Appendix B states that Ngarlan is the Nyul Nyul name for the Beagle Bay area and that this is Stephen’s country because it was his father’s (Stanley Victor) country, and his father’s father’s (Victor or Biktorr) country, and that Biktorr had the same country as his brother Felix Nortingbor. Both Biktorr/Victor and Felix are apical ancestors named in Schedule A. [104] Information pertaining to Stephen’s time spent on the application area, as a child and presently, included at Appendix B provides that Stephen hunts and fishes as he was taught by his elders, according to the seasons, and that he conducts traditional burning in the area when the seasons are right.

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[105] Appendix A of the additional material provides that senior claimant Rita Augustine knew Ringarr Augustine, her husband’s father and an apical ancestor of the native title claim group, well, and that he told Rita about his country at Banana Well (inside the application area). The information provides that Ringarr Augustine was one of Kaberry’s main informants during her 1934 research at Beagle Bay. My consideration – s. 190B(5)(a) [106] In considering whether the factual basis is sufficient in supporting an association of the group’s predecessors with the application area at sovereignty, I have considered the information from historical sources and from the claimants themselves regarding the named apical ancestors of the group. The general statements in Schedule F of the application provide that those apical ancestors are understood as being persons who inhabited the area covered by the application at around the time of sustained European settlement at around the 1880s. [107] Appendix A of the additional material provided in relation to the former Bindunbur (Area C) application (the Bindunbur C additional material) provides that two of the apical ancestors recorded in historical sources as being associated with places within the application area were born in 1874 and 1876. Appendix A further provides that 12 of the apical ancestors listed are all recorded in historical sources, or known by claimants, to be persons associated with, that is, who’s burus were located within, the application area. I note that the locations with which these persons are asserted to have been associated with are not confined to one part of the former Bindunbur (Area C) application area, and cover the breadth of that area. [108] Appendix A also provides that one of the apical ancestors, who considered his country to be around Banana Well, within the former Bindunbur (Area C) application area, was the main informant of anthropologist Kaberry in her 1934 research in the Beagle Bay region. Upon the assumption that this apical ancestor was an elder with proficient knowledge of the area at that time, it is my understanding that the material suggests that that apical ancestor was born in, or present somewhere around that region in the 1880s. [109] On the basis of these asserted facts, I consider that the factual basis supports an assertion that the apical ancestors named in Schedule A of the application were persons who had a physical presence in and an association with the area covered by the former Bindunbur (Area C) application at the time of sustained European settlement in the area. [110] The information in the factual basis suggests that European settlement was occurring around the 1880s. I note that this is some fifty years following the asserted date of sovereignty in Western Australia, being 1828. Schedule F makes the general statement that the apical ancestors were persons descended from those indigenous persons who occupied and effectively ‘owned’ the application area at the time of sovereignty – at [24] and [33]. Despite this, in relying on general statements in Schedule F regarding association, I consider that the factual basis supports an assertion that the predecessors of the native title claim group continuously occupied and inhabited the area covered by the former Bindunbur (Area C) application from sovereignty until the time of sustained European settlement in the area. [111] In my view, the factual basis material is also sufficient in supporting an assertion of a present association of the group with the whole of the area subject of the former Bindunbur (Area C) application. In the s. 62(1)(a) affidavits accompanying the application, I note that three of the

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deponents of those affidavits state that their buru is within the application area, and that they regularly return to these areas to camp, fish, hunt and look after that country. Those claimants also state that they spend time at outstations that their families have erected at those locations – see affidavit of Cecilia Mary Churnside at [3]. [112] In addition to this, the affidavits provide that a further deponent currently lives at Beagle Bay community, within the application area – see affidavit of Walter Koster. [113] Appendix B of the Bindubur C additional material in my view provides further support for an assertion of an association between the present members of the group and the application area. Statements specific to a number of claimants and their families provide that those persons continue to undertake certain activities on their country in accordance with how they were taught by their predecessors, such as managing and approaching spiritual forces in the landscape, fishing, hunting, and collecting various bush foods and resources, and teaching younger generations about country while on country. [114] Throughout this information various places are referred to. I have used the Tribunal’s iSpatial database to verify the location of these places within the application area, and am subsequently of the view that the material demonstrates an association with the whole of the area. On the basis of such information, therefore, I have formed the view that the factual basis is sufficient to support an assertion of an association between the claimants and the area covered by the former Bindunbur (Area C) application today. [115] Regarding whether the factual basis is sufficient to support the assertion of a history of association with the area over the period since sovereignty, I have formed the view that it is sufficient. The information contained in Appendix A of the Bindunbur C additional material indicates that certain claimants possess a living knowledge of some of the apical ancestors recorded as being associated with parts of the former Bindunbur (Area C) application area, and are only separated by two or three generations from those apical persons – see for example Appendix A of Bindunbur C additional material at p. 11. In the s. 62(1)(a) affidavits accompanying the application, claimants name and share their knowledge of their parents and grandparents who comprised the intervening generations, and who taught them about their country – see for example affidavit of Cecilia Mary Churnside at [2] and [3]. In these affidavits, the deponents also state their understanding that their rights and responsibilities in relation to their buru arise by way of their descent from a particular apical ancestor, who ‘owned’ that country pursuant to the group’s laws and customs – see for example affidavit of Alec Dann at [3]. [116] Information in Appendix B of the Bindunbur C additional material gives greater detail of claimants’ knowledge of their predecessors, and how those persons occupied and inhabited the area. For example, a statement pertaining to claimant Stephen Victor provides that he hunts and fishes as he was taught by his elders, according to the seasons, and that he knows Beagle Bay to be the place where Nyul Nyul people would meet for ceremonies and to exchange seafood and bush tucker. Information pertaining to claimant Steven Sebastian provides that he was raised by his grandfather, apical ancestor Patrick Mouda, and that he worked on country around Beagle Bay with older Nyul Nyul men who taught him about his country – see Appendix B of Bindunbur C additional material at pp. 17 to 19. [117] In light of this information, I am satisfied that the factual basis material is sufficient in supporting an assertion regarding the association of the predecessors of the group with the area

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covered by the former Bindunbur (Area C) application during the period from European settlement to the present. [118] Consequently, I have formed the view that I am satisfied that the factual basis is sufficient to support an assertion that the native title claim group have, and the predecessors of those persons had, an association with the area covered by the former Bindunbur (Area C) application. [119] Noting my satisfaction at s. 190B(5)(a) in relation to the former Bindunbur (Area A) application (see my reasons in Attachment B at [113] to [145]), and the fact that the current Amended Bindunbur application is confined to the area covered by the former Area A and Area C applications, relying on those reasons set out at Attachment B at [113] to [145] and on those reasons set out above, I have formed the view that the application satisfies the condition at s. 190B(5)(a). The task at s. 190B(5)(b) [120] I have already stated my understanding of the law at s. 190B(5)(b) in my reasons to accept the former Bindunbur (Area A) application for registration (set out in Attachment B at [146] to [151]). I do not consider that there is any need for me to repeat that understanding here, and consequently, I adopt those paragraphs in relation to the current application. [121] In those reasons regarding the former Bindunbur (Area A) application and the requirements of s. 190B(5)(b) (see Attachment B at [158] to [178]), I explained why I was satisfied that the factual basis was sufficient to support the assertion of the existence of a relevant pre- sovereignty society, namely a society comprising various sub-regional groups who occupied an area broader than that of the Bindunbur (Area A) application the subject of my consideration in that decision. I also explained the reasons for which I was satisfied that the factual basis was sufficient to support an assertion that that society was united by the common acknowledgement and observance of laws and customs in relation to the broader claim region, and further, an assertion that the apical ancestors named in the application were persons who comprised or were born into that society at the time of sustained European settlement in the area. [122] From my reasons set out in that decision, therefore, I was satisfied of a sufficient factual basis in support of an assertion regarding a relevant pre-sovereignty society acknowledging and observing a normative system of laws and customs, and an assertion that the laws and customs acknowledged and observed by the group today are rooted in that normative system of the society at European settlement. [123] The application before me is made by the same native title claim group over the same area covered by the Bindunbur (Area A) application. The factual basis material before me is the same material that I considered in relation to that former Bindunbur (Area A) application, in addition to the material I was considering in relation to the former Bindunbur (Area C) application. [124] Shortly following the filing of the initial Bindunbur (Area A) application (email to the case manager dated 2 October 2013), the applicant’s legal representative provided correspondence clarifying that the group asserted a broad regional claim to the middle Dampier Peninsula, but that due to procedural obstacles that regional claim was to comprise three separate Bindunbur applications, the first of which was the former Bindunbur (Area A) application. [125] As set out in my reasons at s. 190B(5)(a) for the Bindunbur (Area A) application (see Attachment B at [113] to [145]) and in my reasons at s. 190B(5)(a) in the current application, I

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consider that the factual basis material is sufficient to support an assertion of an association of the group and its predecessors with that broader region (namely the region comprising the areas of both applications). Consequently, I am satisfied in relation to both applications that the requirement at s. 190B(5)(a) is met. [126] I do not consider that the inclusion of the former Bindunbur (Area C) application area within the current application area changes my view in relation to the sufficiency of the factual basis material in support of the asserted pre-sovereignty society and its laws and customs, or the traditional laws and customs asserted by the native title claim group today. As set out in my reasons in the decision at Attachment B, my view was that the factual basis I considered in relation to the former Bindunbur (Area A) application provided a sufficient factual basis to support the assertion of a regional society existing over the claim region, namely the area comprising the three proposed Bindunbur applications. [127] On that basis, I here adopt and rely on my reasons regarding s. 190B(5)(b) in the former Bindunbur (Area A) application (stated in full in paragraphs [146] to [178] of Attachment B) in forming the view that I am satisfied that the factual basis is sufficient to support the assertion that there exist traditional laws acknowledged by and traditional customs observed by the native title claim group that give rise to the claim to native title rights and interests. [128] The application meets the requirements of s. 190B(5)(b). The task at s. 190B(5)(c) [129] Again, in expressing my understanding of the law at this condition of the registration test, I adopt and rely on that understanding as set out in paragraphs [179] to [181] of my reasons in the decision to accept for registration the Bindunbur (Area A) application at Attachment B. [130] As explained in those paragraphs, the requirement at s. 190B(5)(c) has a direct relationship with the requirement at s. 190B(5)(b), such that I can only be satisfied in relation to the former condition, where the latter condition has been met – see Martin at [29]. As per my reasons above, in relying on my conclusion at s. 190B(5)(b) in the decision to accept the former Bindunbur (Area A) application for registration (see paragraphs [146] to [178] of Attachment B), I am satisfied that the factual basis is sufficient to support an assertion that there exist traditional laws acknowledged by, and traditional customs observed by the Bindunbur native title claim group that give rise to the claim to native title before me. [131] In my reasons in the former Bindunbur (Area A) decision, I also note that I was satisfied that the factual basis was sufficient to support the assertion at s. 190B(5)(c) (see paragraphs [179] to [186] of Attachment B). Again, I do not consider that the inclusion of the area covered by the former Bindunbur (Area C) application in the application before me alters or changes my view in relation to the factual basis supporting an assertion of the group continuing to hold their native title in accordance with the system of traditional laws and customs asserted. Having been satisfied at s. 190B(5)(a) that the factual basis is sufficient in supporting an association between the group and their predecessors with that wider area, I do not consider there to be anything unreasonable in accepting that that system of laws and customs and the way in which it is or has been exercised by the group and its predecessors extends to cover the additional area subject of the former Bindunbur (Area C) application. As explained in my reasons at s. 190B(5)(a) above, my view is that the factual basis is sufficient in supporting such an assertion.

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[132] Consequently, I adopt my reasons at s. 190B(5)(c) in the decision to accept the former Bindunbur (Area A) application for registration (set out in Attachment B at [179] to [186]) in forming the view that I am satisfied that the current application satisfies the condition at s. 190B(5)(c). [133] The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5). 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. [134] The requirement at s. 190B(6) is that I consider that at least some of the native title rights and interests claimed in the application can be, prima facie, established. As stated above in my reasons at s. 190B(4) (at [82]), there has been no change to the native title rights and interests subject of the claim in the application before me, from those native title rights and interests claimed in the former Bindunbur (Area A) application. [135] I refer to my reasons stated in paragraphs [188] to [218] of Attachment B, which set out my reasons for forming the view that all of the native title rights and interests claimed in the former Bindunbur (Area A) application could be, prima facie, established. Again, I note that the area of the current application entirely comprises the area of the former Bindunbur (Area A) application. [136] With reference to my reasons at s. 190B(5) above, I have been satisfied that the factual basis is sufficient in supporting an assertion of an association of the group and its predecessors with the full extent of the area of the current application (see s. 190B(5)(a)). I have been satisfied that the factual basis is sufficient in supporting an assertion of traditional laws and customs acknowledged and observed by the group that give rise to the claim to native title (see s. 190B(5)(b)). I have been satisfied that the factual basis is sufficient to support the assertion that the native title claim group have continued to hold their native title rights and interests in accordance with those traditional laws and customs (see s. 190B(5)(c)). [137] Consequently, I consider that my view expressed in relation to the requirement at s. 190B(6) in the former Bindunbur (Area A) registration decision (see Attachment B at [188] to [218]) regarding the rights and interests subject of the claim and whether they can be prima facie, established, is unchanged. The mere inclusion of the former Bindunbur (Area C) application area within the current application area does not, in my view, impact my consideration of whether the said native title rights and interests can be, prima facie, established. [138] Consequently, I consider that the application satisfies the condition of s. 190B(6) and that all of the native title rights and interests claimed can be, prima facie, established. Subsection 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group:

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(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. [139] With reference to the wording of the provision at s. 190B(7), I understand that I am to 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’ [emphasis added]. [140] In my reasons at s. 190B(7) for my decision to accept the former Bindunbur (Area A) application for registration (see Attachment B at [219]), I note that I was satisfied that claimant Paul Cox had the requisite connection with some part of the area covered by that application, namely the area around Disaster Bay and Repulse Point. [141] As discussed in my reasons above, there has been no change to the native title claim group between the current application and the former Bindunbur (Area A) application. In addition to this, the area covered by the former Bindunbur (Area A) application is wholly included within the area covered by the current application. [142] I note that I have before me the same material that was subject of my consideration in relation to that former application, and that as per my reasons at s. 190B(5) above, that I am satisfied of a sufficient factual basis supporting a system of traditional laws and customs acknowledged and observed by the group and by which the group continue to hold their native title. [143] On that basis, relying on my reasons at s. 190B(7) in the decision to accept the former Bindunbur (Area A) application for registration (stated in full at [219] to [226] of Attachment B), I have formed the view in relation to the current application that I am 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. [144] The application satisfies the condition of s. 190B(7). 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.

Section 61A provides: (1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.

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(2) If : (a) a previous exclusive possession act (see s. 23B) 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. 23E in relation to the act; a claimant application must not be made that covers any of the area. (3) If: (a) a previous non-exclusive possession act (see 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; a claimant application must not be made in which any of the native title rights and interests confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others. (4) However, subsection(2) and (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 47B, as the case may be, applies to it. [145] In the reasons below, I look at each part of s. 61A against what is contained in the application and accompanying documents and in any other information before me as to whether the application should not have been made.

Section 61A(1) [146] Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. [147] The geospatial assessment provides that there are no determinations of native title that cover any part of the area covered by the application. [148] In my view the application does not offend the provisions of s. 61A(1).

Section 61A(2) [149] Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply. [150] Schedule B of the application lists a number of general exclusion clauses, that is, areas falling within the external boundary of the application area that are not covered by the application. Subparagraph (d) of paragraph [8] of Schedule B provides that any area in relation to which a previous exclusive possession act was done is excluded from the application area. [151] In my view the application does not offend the provisions of s. 61A(2).

Section 61A(3)

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[152] Section 61A(3) provides that an 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 previous non-exclusive possession act was done, unless the circumstances described in s. 61A(4) apply. [153] Schedule E of the application sets out the rights and interests claimed by the native title claim group in relation to the application area. Paragraph [12] of Schedule E includes a claim to a right of exclusive possession. Paragraph [11] clarifies, however, that the right to exclusive possession applies only to those parts of the claim area where there has been no extinguishment to any extent of native title, or where any extinguishment is required to be disregarded. [154] In my view, the application does not offend the provisions of s. 61A(3). [155] The application satisfies the condition of s. 190B(8). 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. [156] I consider each of the subconditions of s. 190B(9) in my reasons below.

Section 190B(9)(a) [157] Schedule Q states that the applicant does not make a claim to any minerals, petroleum or gas wholly owned by the Crown. [158] The application satisfies the subcondition of s. 190B(9)(a).

Section 190B(9)(b) [159] Schedule P of the application states that no claim of exclusive possession is made in relation to any offshore place. [160] The application satisfies the subcondition of s. 190B(9)(b).

Section 190B(9)(c) [161] There is nothing within the application and material before me that suggests that the native title rights and interests claimed have been otherwise been extinguished. [162] The application satisfies the subcondition of s. 190B(9)(c).

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[163] 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]

Reasons for decision: Bindunbur – WC2013/011 Page 26 Decided: 13 December 2013

Attachment A Information to be included on the Register of Native Title Claims

Application name Bindunbur

NNTT file no. WC2013/011

Federal Court of Australia file no. WAD359/2013

In accordance with ss. 190(1) and 186 of the Native Title Act 1993 (Cwlth), the following is to be entered on the Register of Native Title Claims for the above application. Section 186(1): Mandatory information

Application filed/lodged with: Federal Court of Australia

Date application filed/lodged: 20 September 2013

Date application entered on Register: 26 November 2013

Applicant: [As per the RNTC Extract – no change]

Applicant’s address for service: [As per the RNTC Extract – except for the following change: Remove the first line, ie, remove ‘Jacki Cole’ and have ‘Principal Legal Officer’ as the top line].

Area covered by application: [The existing map and description will need to be removed and the new map and description will need to be attached to the Register Extract. Otherwise, text should appear as per the RNTC Extract – except for the following change: Paragraph 7 should now appear:

Reasons for decision: Bindunbur – WC2013/011 Page 27 Decided: 13 December 2013

7. In this Form 1, “claim region” refers to the area shown as such on the map in Attachment C.]

Persons claiming to hold native title: [As per the RNTC Extract – no change]

Registered native title rights and interests: [As per the RNTC Extract – no change]

Reasons for decision: Bindunbur – WC2013/011 Page 28 Decided: 13 December 2013

Attachment B Registration test decision

Application name Bindunbur (Area A)

Name of applicant Ernest Damien Manado, Cecilia Churnside, Alec Dann, Betty Dixon, Walter Koster, Phillip McCarthy

NNTT file no. WC2013/006

Federal Court of Australia file no. WAD359/2013

Date application made 20 September 2013

Date of decision: 26 November 2013

______

Attachment B Page 1 of 42

Reasons for decision Introduction [1] This document sets out my reasons, as the Registrar’s delegate, for the decision to accept the application for registration pursuant to s. 190A of the Act. [2] 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 the day this decision is made, unless otherwise specified. Please refer to the Act for the exact wording of each condition.

Application overview and background [3] The Registrar of the Federal Court of Australia (the Court) gave a copy of the Bindunbur (Area A) claimant application to the Native Title Registrar (the Registrar) on 27 September 2013 pursuant to s. 63 of the Act. This has triggered the Registrar’s duty to consider the claim made in the application under s. 190A of the Act. [4] Given that the claimant application was made on 20 September 2013 and has not been amended, I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply. [5] Therefore, in accordance with subsection 190A(6), I must accept the claim for registration if it satisfies all of the conditions in 190B and 190C of the Act. This is commonly referred to as the registration test. [6] The application is the first of three proposed claims filed in response to two future act notices (relating to the grant of petroleum exploration permits) that cover the area of the Middle Dampier Peninsula on the northern coast of Western Australia. Those future act notices are STP- EPA-0092 and STP-EPA-0094, and both have a notification date of 14 August 2013. With reference to the timeframes for the registration of claims affected by such notices set out ss. 190A(2)(b) and (f), I note that I am obliged to use my best endeavours to apply the conditions of the registration test by 13 December 2013.

Registration test [7] 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 among 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. [8] Pursuant to ss. 190A(6) and (6B), the claim in the application must be accepted for registration because it does satisfy all of the conditions in ss. 190B and 190C.

Attachment B Page 2 of 42

Information considered when making the decision [9] 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. [10] 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. [11] The following is a list of all of the information and documents that I have considered in reaching my decision:  Bindunbur (Area A) native title determination application (WC2013/006; WAD359/2013);  Additional material comprising a 17-page report submitted directly to the Registrar by email on 28 October 2013;  Geospatial assessment and overlap analysis dated 9 October 2013 (GeoTrack: 2013/1901);  Letters sent by the case manager to the State of Western Australia (the State) and the Kimberley Land Council (the KLC) pursuant to s. 66(2) and s. 66(2A), dated 1 October 2013;  Email from the applicant’s legal representative dated 2 October 2013 advising that the application would be the first of 3 proposed applications covering the middle Dampier Peninsula region, but that the filing of the later two claims would depend on the dismissal/strike-out of other underlying claims;  Preliminary assessment comments provided by the delegate to the applicant by letter dated 10 October 2013;  Submissions from the State of Western Australia (the State) provided to the case manager by letter dated 18 October 2013;  Letter to the applicant from the case manager dated 21 October 2013 providing the State’s submissions;  Letter to the State from the case manager dated 28 October 2013 seeking the State’s agreement to confidentiality conditions regarding its use of the additional material;  Letter from the State dated 29 October 2013 seeking further details of the confidential nature of the additional material;  Letter from the case manager to the State dated 30 October 2013 outlining the basis upon which the delegate has determined the additional material to be confidential;  Details of conversations regarding the confidential nature of the additional material between the Tribunal’s National Registration Manager and a representative for the State on 5 and 6 November 2013;  Letter from the State to the case manager dated 8 November 2013 requesting that the applicant identify those specific sections of the additional material that the applicant considers to be confidential, in order that the State can be provided with the non-sensitive material without the need to sign a confidentiality undertaking;  Email from the case manager to the applicant dated 8 November 2013, requesting the applicant to identify and remove confidential information from the additional material provided 28 October 2013, to be supplied to the State;  Revised copy of the additional material provided to the case manager by email dated 8 November 2013 with confidential material redacted;

Attachment B Page 3 of 42

 Email from the case manager to the State dated 12 November 2013 providing the revised version of the additional material, not subject to confidentiality conditions, inviting submissions by COB Friday 22 November 2013;  Email from the case manager dated 25 November 2013 confirming that no further submissions were received from the State;  Transcript of recent proceedings, McKenzie v State of Western Australia [2013] FCA 1058. [12] 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. [13] Also, I have not considered any information that may have been provided to the Tribunal in the course of mediation in relation to this or any other claimant application. [14] I note that I am also the delegate currently considering the WAD425/2013 — Bindunbur (Area C) (WC2013/010) application for the purpose of the registration test, and that the applications were filed in close succession by the KLC as the legal representative for the native title claim group. Upon filing the Bindunbur (Area A) application, the KLC informed the case manager that that application was to be the first of three proposed claims covering the middle Dampier Peninsula region, and that the applications would be identical in form except for the area they cover. [15] I note that the Form 1 for each application is identical apart from the area description and map. While the two applications cover different, but adjacent areas, they are made by the same applicant on behalf of the same native title claim group. Further, each application is supported by identical factual basis material, contained in Schedule F and in statements from the applicant persons in their s. 62(1)(a) affidavits accompanying the applications. [16] Thus, while I have considered each application separately and formed a view in relation to all of the procedural and merit conditions in ss. 190B and 190C for each of the applications, where I have assessed it to be appropriate (given the similarities and identical nature of the bulk of the material provided for each of the applications), I have adopted similar reasoning between the applications at a number of conditions of the registration test.

Procedural fairness steps [17] 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. I note that the common law duty to afford procedural fairness may be excluded by express terms of the statute under which the administrative decision is made or by any necessary implication—Hazelbane v Doepel [2008] FCA 290 at [23] to [31]. The steps that I and other officers of the Tribunal have undertaken to ensure procedural fairness is observed, are as follows. [18] On 1 October 2013, pursuant to s. 66(2A) and s. 66(2), the case manager wrote to the Representative Body for the area, the Kimberley Land Council (the KLC), and the State of

Attachment B Page 4 of 42

Western Australia (the State), providing a copy of the application. The State was also invited to comment on the application. [19] On 18 October 2013, the State wrote to the case manager, providing submissions in relation to the registration testing of the application. By letter dated 21 October 2013 the case manager provided those submissions to the applicant and invited the applicant to respond. [20] In an email on 28 October 2013, the applicant’s representative provided additional material in order to satisfy the requirements of the registration test, specifying that the material was also intended as a response to the State’s submissions dated 18 October 2013. [21] The applicant asserted that the additional material was of a confidential nature, and requested that in providing the State with a copy of the material, the Registrar seek the State’s agreement to confidentiality conditions regarding their use of the material. A letter to this effect, dated 28 October 2013, was sent by the case manager to the State by email on that same day. [22] By letter dated 29 October 2013 the State responded to the request to sign a confidentiality undertaking in relation to the additional material. In this correspondence, the State sought further clarification as to the basis upon which the delegate had determined that the additional material was confidential, arguing that without further information, the State could not assess the appropriateness of the request to sign the confidentiality undertaking in the circumstances. [23] I caused the case manager to write to the State in response on 30 October 2013. That letter set out the basis upon which I had determined the information to be of a confidential nature, and again requested that the State agree to the confidentiality undertaking forwarded in the previous correspondence of 28 October 2013. [24] On 4 November 2013, the case manager received further correspondence from the State again challenging the assertion that the additional material is confidential. Upon receipt of this letter, on 5 November 2013, a representative of the Tribunal contacted the relevant State solicitor, seeking to reach a negotiated outcome in regards to the provision of the additional material. The Tribunal representative agreed that the State would be provided with a summary of the additional material, to enable the State to determine whether it was necessary that they view the material. This summary was sent to the State on 6 November 2013. [25] On 6 November 2013, the State solicitor contacted the Tribunal representative and again, asserted the State’s position that it did not consider the entirety of the additional material to be of a confidential nature. The Tribunal representative requested, therefore, that the State identify those parts of the material which it did not consider to be confidential, and advised that the case manager would accordingly approach the applicant with a request that it redact those parts of the material it considered to be confidential, so that the State could be provided with the remaining non-sensitive information (without a requirement for the State’s agreement to any confidentiality undertaking). [26] The State provided correspondence in this regard on 8 November 2013. This was forwarded to the applicant, along with a request that the applicant redact from the additional material those parts it considered to be confidential information. The applicant provided this revised version to the case manager on 8 November 2013 and it was subsequently forwarded to the State on 12 November 2013. The State was given until 22 November 2013 to provide any submissions in response to that material. No further correspondence was received from the State.

Attachment B Page 5 of 42

Native title claim group: s. 61(1) [31] The scope of the test at s. 61(1) for the purposes of s. 190C(2) was, in my view, clearly enunciated by Mansfield J in Doepel when His Honour stated: …If the description of the native title claim group indicates that not all persons in the native title group were included, or that it was in fact a sub-group of the native title claim group, then the relevant requirement of s. 190C(2) would not be met and the claim cannot be accepted for registration – at [36]. [32] His Honour also emphasised the procedural nature of the condition and held that the Registrar’s delegate was not required to look beyond the application, nor were they permitted to

Attachment B Page 6 of 42 consider the correctness of the description provided – at [37]. In light of the decision in Doepel, therefore, it is my understanding that it is only where on the face of the application itself, it appears that the native title claim group described in Schedule A is a subgroup, or part only of the native title claim group, that the application will fail to meet the requirements of the condition. [33] A description of the native title claim group appears at Schedule A of the application. Having turned my mind to that description, I am satisfied that it does not seek to exclude persons from, nor does it appear to be a sub-group of, the native title claim group. [34] The application contains all details and other information required by s. 61(1).

Name and address for service: s. 61(3) [35] The names of the persons comprising the applicant appear immediately above Part A of the application (at page 3). The address for service of the applicant’s representative appears at Part B of the application. [36] The application contains all details and other information required by s. 61(3).

Native title claim group named/described: s. 61(4) [37] In Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 (Wakaman), Kiefel J held that the role of the Registrar’s delegate at this condition of the registration test is limited to a consideration only of whether the required information is contained in the application – at [34]. This was reaffirmed by the Court in Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007) where Dowsett J held that the Registrar was not required to consider whether the description provided is ‘sufficiently clear’, but merely that a description had been provided – at [31] and [32]. [38] As above, a description of the native title claim group appears at Schedule A. [39] The application contains all details and other information required by s. 61(4).

Affidavits in prescribed form: s. 62(1)(a) [40] The application is accompanied by six affidavits, each of which has been sworn by one of the persons comprising the applicant. The affidavits are all signed, dated and have been competently witnessed. Each of the deponents states their descent from one of the apical ancestors named in Schedule A, such that I am satisfied that the deponents are all members of the native title claim group. [41] The affidavits all contain a series of identical paragraphs which speak to the matters prescribed by subsections (i) to (v) of s. 62(1)(a). It is my view that the statements in these paragraphs sufficiently address those matters, and consequently, that the affidavits meet the requirements of the condition. [42] The application is accompanied by the affidavits required by s. 62(1)(a).

Application contains details required by s. 62(2): s. 62(1)(b) [43] The application contains all details and other information required by s. 62(1)(b).

Attachment B Page 7 of 42

[44] The application does contain the details specified in ss. 62(2)(a) to (h), as identified in the reasons below.

Information about the boundaries of the area: s. 62(2)(a) [45] Schedule B refers to Attachment B as containing a description of the boundary of the area covered by the application. Attachment B is titled ‘Mid-Dampier Peninsula Area A – External Boundary Description’ and contains a written description of the boundary of the application area. Schedule B, at paragraph [8], also contains a list of areas falling within that boundary that are not covered by, or that are excluded from, the application, in the form of general exclusion clauses. [46] The application contains all details and other information required by s. 62(2)(a).

Map of external boundaries of the area: s. 62(2)(b) [47] Schedule C of the application refers to Attachment C as containing a map showing the external boundaries of the area covered by the application. Attachment C is titled ‘Native Title Determination Application – Mid Dampier Peninsula Area A’, dated 19 August 2013 and is a map which displays the boundary of the application area outlined in bold. [48] The application contains all details and other information required by s. 62(2)(b).

Searches: s. 62(2)(c) [49] Schedule D of the application provides that the applicant has not carried out any searches to determine the existence of any non-native title rights and interests. [50] The application contains all details and other information required by s. 62(2)(c).

Description of native title rights and interests: s. 62(2)(d) [51] A description of the native title rights and interests claimed in relation to the area covered by the application appears at Schedule E. I am of the view that that description consists of more than merely 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. [52] The application contains all details and other information required by. 62(2)(d).

Description of factual basis: s. 62(2)(e) [53] A general description of the factual basis on which it is asserted that the claimed native title rights and interests exist is contained in Schedule F of the application. [54] The application contains all details and other information required by s. 62(2)(e).

Activities: s. 62(2)(f) [55] The activities currently carried out by members of the native title claim group in relation to the land and waters of the application area are listed in Schedule G of the application. [56] The application contains all details and other information required by s. 62(2)(f).

Other applications: s. 62(2)(g)

Attachment B Page 8 of 42

[57] Schedule H of the application provides that there are no other applications seeking a determination of native title over the area covered by the current application. [58] The application contains all details and other information required by s. 62(2)(g).

Section 24MD(6B)(c) notices: s. 62(2)(ga) [59] Schedule HA contains this information, and provides that the applicant is not aware of any such notices that have been issued in relation to the area covered by the application. [60] The application contains all details and other information required by s. 62(2)(ga).

Section 29 notices: s. 62(2)(h) [61] Information pertaining to two particular s. 29 notices of which the applicant is aware appears at Schedule I of the application. [62] The application contains all details and other information required by s. 62(2)(h). 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: (d) the previous application covered the whole or part of the area covered by the current application, and (e) the previous application was on the Register of Native Title Claims when the current application was made, and (f) the entry was made, or not removed, as a result of the previous application being considered for registration under s. 190A. [63] It is my understanding of the test at s. 190C(3) that the requirement for me to turn my mind to the issue of common claimants is triggered only where there is a previous application that meets all of the criteria set out at subsections (a), (b) and (c) of that condition – see Western Australia v Strickland [2000] FCA 652 (Strickland FC) at [9]. [64] In my consideration of whether there is a previous application that covers the whole or part of the area covered by the current application, I have had regard to the geospatial assessment and overlap analysis (geospatial assessment) prepared by the Tribunal’s Geospatial Services division, dated 9 October 2013 (GeoTrack: 2013/1901). That geospatial assessment provides that there are no applications as per the Register of Native Title Claims and Schedule of Applications – Federal Court that fall within the external boundary of the current application. [65] Consequently, I have not considered the requirements of this condition any further. I am 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 any previous application. [66] The application satisfies the condition of s. 190C(3).

Attachment B Page 9 of 42

Subsection 190C(4) Authorisation/certification Under s. 190C(4) the Registrar/delegate must be satisfied that either: (c) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, or (d) 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.

Note: The word authorise is defined in section 251B.

Under s. 190C(4A), the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected where, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect. [67] 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. [68] Schedule R provides that the application has been certified, and refers to Attachment R as containing the relevant document. [69] In Doepel, Mansfield J explained the different tasks to be undertaken by the Registrar’s delegate at subsection (a), as against subsection (b) of s. 190C(4), when he stated that: Section 190C(4) indicates clearly the different nature of the conditions imposed upon the Registrar … The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic. In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group – at [78]. [70] Flowing from this, it is my understanding that where a native title determination application is certified, I am limited to a consideration of the following two matters only: firstly, whether there is an appropriate representative body that can certify, and secondly, whether the certification meets the requirements of a valid certification pursuant to s. 203BE(4). [71] Section 203BE(4) provides that: (4) A certification of an application for a determination of native title by a representative body must: (a) 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 (b) briefly set out the body’s reasons for being of that opinion; and (c) where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3). [72] The certification at Attachment R, dated 22 August 2013, has been provided by the Kimberley Land Council Aboriginal Corporation (the KLC) and is signed by the body’s Chief Executive Officer on its behalf. The first part of the certification, under the heading ‘Statement of Opinion pursuant to section 203BE(2) of the Native Title Act’, sets out those statements

Attachment B Page 10 of 42 prescribed by s. 203BE(2), pertaining to the representative body’s opinion regarding authorization of the applicant by all the persons in the native title claim group, and regarding the making of all reasonable efforts to ensure the application describes or otherwise identifies all the other persons in the group. These statements, in my view, are sufficient for the purposes of the requirement at subsection (a) of s. 203BE(4). [73] The second part of the certification, under the heading ‘Reasons for Opinion pursuant to section 203BE(2)(a) and (b)’, sets out various information regarding the requirements of authorisation and the identification of those persons who comprise the native title claim group. Noting that subsection (b) of s. 203BE(4) only requires that the certification ‘briefly set out’ the representative body’s reasons for being of the stated opinion, I am satisfied that the information is sufficient, and that the requirement of subsection (b) is met. [74] Subsection (3) of s. 203BE speaks to those situations where the relevant representative body is aware of another application that overlaps the current one. Regarding the requirement of subsection (c) of s. 203BE(4), I note that the certification is silent. Schedules H and O of the application, however, both state that no other application overlaps any part of the current application area. For this reason, I understand that the representative body asserts that they are not aware of any overlapping applications and for that reason, with reference to the wording of subsection (c), do not consider the requirement ‘applicable’, and/or one that they need to address. I am of the view that such an approach is acceptable in relation to the requirement at s. 203BE(4)(c), and that it in no way affects the validity of the certification. [75] Consequently, I am satisfied that the document contained in Attachment R is a valid certification for the purposes of s. 203BE(4). [76] Regarding whether the KLC is an appropriate representative body that can certify, I note that the certification at Attachment R does not contain any information addressing this issue. The geospatial assessment confirms that the application area falls entirely within the region for which the KLC carries out the functions of a representative body. [77] In satisfying myself of the particular power of the KLC to certify native title determination applications, therefore, I have turned my mind to the national maps maintained by the Tribunal, one of which contains information pertaining to the status and geographic region of responsibility of each of the representative bodies and native title service providers across Australia. That map provides that the KLC is a recognised Aboriginal/Torres Strait Islander body pursuant to s. 203AD. It is my understanding, therefore, that the KLC is charged with all of the responsibilities of a representative body, including that function of certification prescribed by s. 203BE(1). [78] For the reasons set out above, 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 body that could certify the application.

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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. [79] The wording of s. 190B(2) refers directly to that information contained in the application pursuant to ss. 62(2)(a) and (b), and it is therefore that information to which I have turned my mind in assessing the application at this condition of the registration test – see also Doepel at [16]. [80] Schedule B of the application refers to Attachment B as containing a written description of the area covered by the application, and also contains a number of general exclusion clauses to describe those areas falling within the external boundary of the application that are not subject to the application. [81] Attachment B is entitled ‘Mid-Dampier Peninsula Area A – External boundary description’ and is a metes and bounds description referencing native title determinations, native title determination applications, reserves, pastoral leases, cadastral parcels, the Fraser River and coordinate points. The following native title determinations and determination applications are specifically excluded:  WAD49/1998 Bardi Jawi WC1995/048  WAD6061/1998 Dambimangari WC1999/007  WAD6006/1998 Rubibi Community WC1999/023  WAD6255/1998 Mayala WC1998/039  WAD104/2011 Mawadjala Gadjidgar WC2011/003  WAD258/2012 Warrwa #2 WC2012/009  WAD6099/1998 Nyikina Mangala WC1999/025  WAD124/2010 Jabirr Jabirr People WC2010/005  WAD6124/1998 Djabera-Djabera WC1996/099  WAD250/2012 Nyul Nyul #2 WC2012/008 [82] The written description at Attachment B has been produced by the Tribunal’s Geospatial Services division, dated 19 August 2013. [83] Schedule C refers to Attachment C, which contains a colour copy of a map entitled ‘Mid- Dampier Peninsula Area A’, also produced by the Tribunal’s Geospatial Services division and dated 19 August 2013. The map includes:  the application area depicted by a bold blue outline;  native title determination applications depicted by colour and labelled;  native title determinations depicted by a grey stippled fill, black outline and black text;  land tenure depicted by colour and labelled;  scalebar, northpoint, coordinate grid, legend, locality map; and

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 notes relating to the source, currency and datum of data used to prepare the map. [84] With regards to the use of general exclusion clauses to describe those areas within the external boundary that are not covered by the application, I am of the view that the adoption of this method does not create any obstacle to the application meeting the requirements of s. 190B(2) – see Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) at [50] to [55]. [85] The geospatial assessment concludes that the map and description are consistent and identify the application area with reasonable certainty. Having turned my mind to the map and written description of the area contained in the application, I agree with this conclusion, and am satisfied that the information is sufficient for it to be said whether native title rights and interests are claimed in relation to particular land or waters. [86] The application satisfies the condition of s. 190B(2). Subsection 190B(3) Identification of the native title claim group The Registrar must be satisfied that: (c) the persons in the native title claim group are named in the application, or (d) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. [87] In assessing the application at this condition of the registration test, with reference to the wording of the provision, and to the comments of Mansfield J in Doepel (at [16]), I am of the view that it is to the description contained in the application pursuant to s. 61(4) that I am to turn my mind. [88] A description of the native title claim group appears at Schedule A of the application as follows: The members of the native title claim group in aggregate comprise the descendants (including by adoption) of the following persons: [list of 35 named apical ancestor individuals and 5 named apical ancestor couples] being, generally, persons from buru or family group locations; (a) in the southwest of the claim area generally (but not always) associated with the identifier label Jabirr Jabirr, which is sometimes referred to as including the identifier label Nyombal; (b) in the northwest of the claim area and generally (but not always) associated with the identifier label Nyul Nyul; and (c) in the northeast and east of the claim area generally (but not always) associated with the identifier label Nimanbur which in turn is sometimes associated with the identifier label Bardi (Nimanbur). [89] Noting that the persons comprising the native title claim group are described, rather than named, in the application, I consider that it is the requirement prescribed by subsection (b) of s. 190B(3) that is relevant in applying this condition of the test. [90] Discussing the nature of the task of the Registrar’s delegate at s. 190B(3), Mansfield J in Doepel held that the focus is ‘whether the application enables the reliable identification of the

Attachment B Page 13 of 42 persons in the native title claim group’ – at [51]. His Honour emphasised that the correctness of the description was not the issue, and found that ‘any examination of whether all of the named or described persons do in fact qualify as members of the native title claim group’ was not permitted – at [37]. Kiefel J reaffirmed this principle in Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 (Wakaman), and held that all that was required was ‘an assessment of the sufficiency of the description of the group for the purpose of facilitating the identification of any person as part of the group’ – at [34]. [91] In the case of Western Australia v Native Title Registrar [1999] FCA 1591 (WA v NTR), Carr J dealt with a description which involved the application of various criteria, or ‘rules’ in order to identify those persons who were members of the group. Those rules included that claim group members were the biological descendants of the unions between certain named people, that they were persons adopted by the named people and by the biological descendants of the named people, and that they were the biological descendants of the adopted people referred to – at [64]. [92] In his discussion of the description, Carr J held that despite the fact that it would necessarily entail a factual inquiry to determine who the persons comprising the group were, this was not fatal to the description meeting the requirement of ‘sufficiently clear’. His Honour held that: [t]he question is whether the application of the Three Rules describes the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is in that group. In my view it does. The starting point is a particular person. It is then necessary to ask whether that particular person, as a matter of fact, sits within one or other of the three descriptions in the Three Rules. I think that the native title claim group is described sufficiently clearly. In some cases the application of the Three Rules may be easy. In other cases it may be more difficult… 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… The Act is clearly remedial in character and should be construed beneficially… – at [67]. [93] I note that there are similarities between the description in WA v NTR and the description in the application before me, namely that both descriptions involve reference to descent from named apical ancestors, whether biological descent or descent by adoption. It is my understanding of the description before me that descent from the named apical ancestors or apical ancestor couples, can be by either means. [94] In light of Carr J’s finding in WA v NTR, it is my view that there is nothing within the description before me that prevents me from reaching the required level of satisfaction that it is sufficiently clear. Following the list of apical ancestors in Schedule A, I note that the description contains further information regarding the identifier labels of those persons descended from the named ancestors who subsequently comprise the native title claim group. In my view, this information serves only to further assist the necessary factual inquiry that is to be undertaken in identifying the descendants of the persons named. Where the starting point is a particular person, I am satisfied that with some factual inquiry, it could be determined whether that person is descended (whether by biological means or by adoption) from one of the named apical ancestors, and that reference to the identifier label asserted by the particular person may further assist in determining whether they can be identified as a member of the group so described. [95] I am satisfied, therefore, that the persons in the group are described sufficiently clearly so that it can be ascertained whether any particular person is a member of the group.

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[96] The application satisfies the condition of s. 190B(3). 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. [97] Again, it is my understanding of the condition at s. 190B(4) that I am limited in my consideration to the information contained in the application pursuant to s. 62(2)(d), namely, a description of the native title rights and interests claimed in relation to the particular land and waters of the application area. This description appears at Schedule E of the application. [98] In Doepel, Mansfield J discussed the task of the Registrar’s delegate at s. 190B(4) in some detail, and held that the ‘test of identifiability’ was whether the claimed native title rights and interests are ‘understandable and have meaning’ – at [99]. His Honour indicated that an assessment of whether those rights and interests have meaning required reference to the definition of ‘native title rights and interests’ at s. 223(1) of the Act – at [99]. [99] Further to this, Mansfield J held that the task at s. 190B(4) was ‘a matter for the Registrar to exercise [their] judgment upon the expression of the native title rights and interests’, and that he or she was able to consider the entire contents of Schedule E together in ensuring there was nothing contradictory within the description provided – at [123]. [100] Schedule E of the application sets out those rights and interests claimed by the applicant. This includes, at paragraph [12], a claim to a right of possession, occupation, use and enjoyment of the land and waters as against all others. It is my view that such a broad claim does not offend the condition of s. 190B(4) – see Strickland at [60]. [101] Schedule E then sets out three non-exclusive rights and interests, being the rights to: (a) have access to, remain on and use the land and waters; (b) access and take the resources of the land and waters; (c) protect places, areas and things of traditional significance on the land and waters. [102] Following the list of native title rights and interests claimed, Schedule E also contains a number of qualifications that further clarify the exercise of those rights and interests. These qualifications include that the rights and interests claimed are all held by the members of the native title claim group subject to and in accordance with traditional law and custom, and that the group acknowledge that the rights and interests are subject to and exercisable in accordance with valid Commonwealth and State laws. [103] I have considered the description of the native title rights and interests claimed by the native title claim group in relation to the application area before me, and am satisfied that those rights and interests claimed have meaning and can be easily understood. In forming this view, I have had regard to the definition of ‘native title rights and interests’ at s. 223(1) and consider that those rights and interests claimed have meaning as native title rights and interests. I have not, however, undertaken any assessment of whether each individual right or interest claimed does in

Attachment B Page 15 of 42 fact meet the requirements of that definition, and have reserved this assessment for the further merit condition of s. 190B(6) below. [104] Having read the contents of Schedule E together, including the stated qualifications, I am similarly satisfied that there are no inherit or explicit contradictions within the description that prevent the rights and interests claimed from being readily identified. [105] The application satisfies the condition of s. 190B(4). 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: (d) that the native title claim group have, and the predecessors of those persons had, an association with the area, and (e) 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 (f) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. [106] The task at s. 190B(5) of the registration test requires me to consider whether the factual basis put before me by the applicant is sufficient to support the assertion of the particular claim to native title rights and interests. Specifically, that information must be sufficient to support each of the three assertions set out in subparagraphs (a), (b) and (c) of that provision. [107] I note that it is not my role, nor am I obliged to, search out information or material which may go towards supporting those assertions. As French J in Martin v Native Title Registrar [2001] FCA 16 (Martin) stated: ‘the provision of material disclosing a factual basis for the claimed native title rights and interests, for the purposes of registration, is ultimately the responsibility of the applicant. It is not a requirement that the Registrar or his delegate undertake a search for such material’ – at [23]. The case law confirms, however, that I am able to look beyond the information contained in the application itself, and for that purpose, I consider that the sources referred to in s. 190A(3) may be appropriate – see for example Gudjala 2008 at [90]. [108] While the information required to be contained in the application is no more than ‘a general description of the factual basis’, for the purposes of s. 190B(5), it is my view that that general description ‘must be in sufficient detail to enable a genuine assessment of the application by the Registrar… and be something more than assertions at a high level of generality’ – Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala 2008) at [92]. [109] The applicant is not, however, required to furnish evidence able to prove the matters necessary to make out the claim in subsequent proceedings, nor can I assess the strength of the evidence provided in establishing the claim – see Doepel at [17]; Gudjala 2008 at [92]. In my consideration of the applicant’s factual basis material at s. 190B(5), my role requires me only to determine ‘whether the asserted facts can support the claimed conclusions’ – Doepel at [17]. In doing so, with reference to the required statements in the accompanying s. 62(1)(a) affidavits, it is

Attachment B Page 16 of 42 my view that I am able to treat the information contained in the application as true – Gudjala 2008 at [91]. The applicant’s factual basis material [110] The applicant’s factual basis material is primarily contained in Schedule F of the application, and in additional material provided directly to the Registrar (by email to the case manager) on 28 October 2013. That additional material comprises a single 17-page report providing further information relevant to the assertions at s. 190B(5). The s. 62(1)(a) affidavits sworn by the applicant persons accompanying the application also contain statements going to the factual basis in support of the claim. [111] In addition to this, schedules E, G and M contain some brief statements I consider to be relevant to the condition at s. 190B(5). [112] I consider each of the three assertions set out in the three paragraphs of s. 190B(5) in turn in my reasons below. The task at s. 190B(5)(a) [113] The assertion at s. 190B(5)(a) speaks to an association between the native title claim group and their predecessors, with the area covered by the application. French J’s comments in Martin suggest that what is required in meeting the condition is that the factual basis disclose an association of a spiritual and/or physical nature, with the ‘entire area claimed’ – at [26]. His Honour agreed with the delegate’s finding in that case that the material disclosed an association with only particular areas, and that the statements contained in schedule F were too broad and lacked the necessary geographical particularity to support the assertion regarding the land and waters of the area subject of the application – at [26]. [114] Dowsett J in Gudjala 2007, also gave some guidance regarding the type of factual basis material that may be necessary to meet the assertion at s. 190B(5)(a). Such information referred to by His Honour includes that which speaks to a present association of the claim group as a whole with the area, though it is not a requirement that all members have such an association at all times, and; information addressing an association between the predecessors of the whole group and the area over the period since sovereignty – at [52]. Submissions from the State of Western Australia [115] On Friday 18 October 2013, the State provided written submissions to the Registrar regarding the registration testing of the application. In summary, the State submitted that the applicant had not provided a factual basis sufficient to support the assertion at s. 190B(5)(a), on the grounds that:  Martin and the decision in Corunna v Native Title Registrar [2013] FCA 372 (Corunna) provide authority for the fact that the Registrar is to be satisfied that the relevant association is to the entirety of the claim area, and that the Registrar is not to accept broad statements which lack geographic particularity;  the material within the application addresses an association with the claim region, rather than the area covered by the application, and consequently much of the material refers to locations outside of the application area;

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 the material is otherwise largely comprised of highly general statements, lacking in geographical particularity to the application area;  while the affidavits accompanying the application do provide geographically specific information, only two of the six affidavits include references to places within the application area;  the two affidavits referring to locations within the application area address only a limited portion of the actual application area. [116] Therefore the State concludes that the factual basis is insufficient in supporting an association of the native title claim group as a whole with the entirety of the application area. [117] In response to the State’s submissions, on 28 October 2013, the applicant provided directly to the Registrar the additional material. Part 1 of that additional material provides a rebuttal to the State’s assertions regarding the requirement at s. 190B(5)(a), including references to the case law surrounding that requirement. Part 2 of the additional material contains further factual basis material for the Registrar’s consideration in relation to the requirement at s. 190B(5)(a). The applicant’s factual basis material – section 190B(5)(a) [118] As set out in the application overview above, the present application is proposed as being the first of three claims lodged by the same native title claim group (named Bindunbur) over a substantial portion of the middle Dampier Peninsula in the Kimberley region of Western Australia. In correspondence with the case manager (email from the KLC dated 2 October 2013), the applicant’s legal representative submitted that in light of the fact that the claims were being prepared in response to certain future act notices (restricting the timeframe within which the claims had to be prepared and filed), the applicant’s planned course of action was that the three claims would be identical in form, except for the areas that they were to cover. [119] It is my understanding that the three claims together will comprise a regional claim for the Bindunbur native title claim group. This intention was expressed in the recent proceedings of McKenzie v State of Western Australia [2013] FCA 1058, where the Court heard a number of individual matters in the region, some of which were subject to applications for leave to discontinue, and all of which fell within the area of the proposed regional Bindunbur claim (Parts A, B and C). Leave was granted for two of the underlying claims to be discontinued, while certain new claims were referred to case management, with programming orders for the hearing of competing claims over the area sometime around July 2015. [120] The applicant’s factual basis material that speaks to an association of the group and its predecessors with the area includes certain information at Schedule F, the information contained in the additional material submitted 28 October 2013 (the additional material), and statements contained in the s. 62(1)(a) affidavits accompanying the application. That factual basis material provides the following asserted facts:  the area of the middle Dampier Peninsula is that part of the Peninsula bounded by the determinations of native title for the Bardi Jarwi people, the Rubibi, and the Nyikina Mangala and it is this area that is referred to as the ‘claim region’ – Part 2 of the additional material at [2];

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 the area of the inland Peninsula is those areas of the middle Dampier Peninsula located on and in the vicinity of Country Downs and Kilto pastoral leases – Part 2 of the additional material at [8];  under the traditional laws and customs for the people of the region, the territorial divisions between local groups in the resource-rich coastal areas of the Peninsula are more defined, whereas the less resource rich areas of the inner Peninsula are generally shared between those groups – Schedule F at [38] and [39];  members of the claim group primarily assert territorial rights and interests in relation to their buru, a localised area in which they hold rights and interests by way of cognatic descent from a person acknowledged to be from that area – Schedule F at [43] and [44];  early recordings of the landholding systems for the Peninsula note that a diverse group exploited the resources of the inland area – Part 2 of the additional material at [9];  this group included the apical ancestors and their descendants who accessed the area and travelled across it to attend regional meetings (including law ceremonies) with each other and with members of other sub-regional groups, and to trade resources, gathering at places such as Yarp, Lake Louisa and Mt Jowlaenga – Part 2 of the additional material at [10];  joint responsibility for this area was exercised by way of decision-making at regional meetings – Part 2 of the additional material at [12];  today those parts of the inland Peninsula which are not part of the primary country of a specific descent group are regarded as shared area or common ground, used by everyone for travelling across and hunting – Part 2 of the additional material at [15];  the current claimants were taught by their parents and grandparents how the group’s predecessors used and shared the inland Peninsula area – Part 2 of the additional material at [15];  no part of the claim region has at any time been vacant or without persons who possess rights and interests in relation to those land or waters – Schedule F at [49];  the region of the claim area was inhabited from at least several millennia before sovereignty in Western Australia in 1828 – Schedule F at [24];  contact with and impact upon the Bindunbur ancestors as a result of white settlement did not occur until the early 1880s – Schedule F at [25];  ethnographic, linguistic and anthropological research in the area has long acknowledged the presence of Indigenous groups in the area identifying as Jabirr Jabirr, Nyombal, Nyul Nyul, Bardi, Nimanbur, Nyikina and Yawuru – Schedule F at [26];  this research dates as far back as 1908, and includes reference to known ancestors of the native title claim group – Schedule F at [26];  the members of the native title claim group and their predecessors have had a continuous presence in the claim region since sustained European settlement, including continuous conduct of activities such as use of the resources of the area, in pursuit of their entitlements possessed under their traditional laws and customs. This use of resources has been recorded in various historical sources – Schedule F at [27], [28] and Part 2 of the additional material at [13];  one way in which this contact was maintained was through the employment of members of the group and their predecessors in pastoral work on various leases in the area, particularly the Beagle Bay pastoral lease. This work brought together old and young claimants and it was also a forum for teaching about the inland Peninsula, including resource utilisation,

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traditional place names and sacred sites and rules about access to such places – Part 2 of the additional material at [14];  many members of the claim group and their predecessors were born in or lived for all or much of their lives within the claim region and continue to live within the claim region – Schedule F at [34];  many ancestors of members of the claim group are buried in the claim region – Schedule F at [37];  the apical ancestors listed in Schedule A are persons who are descended from those Indigenous people occupying the claim region at sovereignty, and who are known to be from the claim region at European settlement of the area – Schedule F at [33];  the members of the group consider themselves, pursuant to their traditional laws and customs, the ‘right’ people for and ‘owners’ of the area – Schedule F at [35];  the claimants believe these rights were inherited by the apical ancestors from their ancestors from time immemorial – Part 2 of the additional material at [6];  these beliefs have been handed down through the generations of the claimants’ predecessors to the claimants today – Part 2 of the additional material at [7];  claimants today have also been passed stories about the inland country from their ancestors, such as a story about a kangaroo which links the Fraser River with Mulgurung – Part 2 of the additional material at [16]. [121] In addition to this general information regarding the association of the group and their predecessors with the application area, the s. 62(1)(a) affidavits sworn by the applicant persons provide further details regarding the association of those persons and their families with the area. Those applicant persons identify themselves as the groups Nimanbur/Nyikina, Nyul Nyul, Bardi, Jabirr Jabirr and Yawuru. [122] Those applicant persons assert their families as being associated with the following areas, which they consider to be their buru or burr: Winawal/Sandy Point, Nudugun/Carnot Bay, Valentine Island, Ngarlan/Beagle Bay, Madarr/Repulse Point, and Disaster Bay. [123] The additional material also contains detailed information regarding the birth places, burial places and places of residence of the group’s apical ancestors, locations at which claim group members currently camp, fish, hunt and collect resources, places understood by the claimants as being significant and/or in need of protection as taught by their predecessors, and dreaming stories associated with particular places within the claim region. [124] From this material, it is my understanding that the term ‘claim region’ is used to describe the entirety of the area which the applicant proposes to be subject to the three combined Bindunbur claims (including the area of this application, Area A, and the areas covered by a further two proposed claims, Areas B and C). It is my further understanding that the native title claim group assert an association with the entirety of the claim region, and that the factual basis material before me is intended to speak to the association of the group and their predecessors with that entire area. [125] The area subject to the current application, namely Bindunbur (Area A), I understand as being primarily the area referred to within the material as the inner Peninsula. It is the factual basis material regarding an association between the group and their predecessors and this

Attachment B Page 20 of 42 particular area to which I have primarily turned my mind in undertaking the task at this condition of the registration test. My consideration – s. 190B(5)(a) [126] The material asserts that the apical ancestors of the group are all persons who were associated with the wider claim region at the time of sustained European settlement in the area, in the early 1880s. It is my understanding that only some of the apical ancestors named are recorded as being associated with the particular land and waters covered by this application, or areas immediately adjacent to the application area, namely nine apical persons. Regarding the birth dates of those nine persons, I have only one date provided, being 1874. From this, however, I am prepared to accept the general assertion in Schedule F that the apical ancestors are persons who were considered to be associated with the application area around the time of sustained European settlement. [127] Regarding a present association of the members of the group with the application area, the affidavits sworn by the applicant persons provide that two of those six persons consider themselves associated at the family or local level with places (their buru) within the application area, while another two consider their buru to be areas relatively proximate to the border of the application area, but outside the application area itself (at Sandy Point). [128] The information provided by these four claim group members indicates that while they may not live within the application area, they continue to visit their buru/burr regularly to both enjoy the resources of the area, and to ensure it is maintained and protected from harm and/or physical damage. The factual basis material indicates that claimants consider this to be their responsibility pursuant to the rights and interests that have been passed down to them by their predecessors – see for example Part 2 of the additional material at [25]. Claimants’ families also continue to access, camp and spend time at outstations owned by those families on the application area, such as at Madarr – see affidavit of Ernest Damien Manado at [3], [5] and [6]. [129] The material provides that certain claimants have knowledge of stories and sacred songs for locations within the application area, which in my view, suggests that the association asserted is both physical and spiritual in nature – see for example Appendix B of the additional material at p. 16. In addition to this, the material asserts a strong belief held by the claimants that the spirits of their ancestors continue to occupy the application area – Schedule F at [64], [65] and [67]. [130] In light of the material discussed above, I am of the view that the factual basis is sufficient to support an assertion of an association between both the apical ancestors of the group, and the claimants today with the application area, that is physical and spiritual in nature. I must now turn to consider, therefore, whether the material is sufficient to support an assertion of an association between the predecessors of the group and the area over the period since sovereignty. [131] The additional material asserts that the connection of the group’s predecessors with the area was able to be maintained through many of those persons being employed on pastoral leases across the area, and that during the time spent on these pastoral properties the predecessors shared cultural knowledge of their country and the laws and customs regarding their rights and interests in that country – see Part 2 of the additional material at [14]. [132] In addition to this, statements contained in the affidavits of each of the six applicant persons demonstrate that those claimants are able to trace their descent back to a particular apical

Attachment B Page 21 of 42 ancestor named in Schedule A of the application, and that they are able to name each predecessor comprising each generation back to that apical ancestor – see for example the affidavit of Ernest Damien Manado at [2]. It is my understanding that the apical ancestor from whom the claimant is descended is generally three generations preceding the claimant, that is, the claimants’ great grandparent – see for example the affidavit of Cecilia Mary Churnside at [2]. [133] I also have information before me regarding the lives of those predecessor persons comprising the generations between the claimants and the apical ancestors named in Schedule A. For example, one claimant states that he was shown and taught about his country, including how to look after it and how to use the resources from it, by his grandfather, who was the son of apical ancestor Bobby Ah Choo – see the affidavit of Phillip McCarthy at [3]. He states his country as being the coastal area around Valentine Island (within the application area). [134] The material provides that other claimants speak of being taken out on their country by parents and grandparents, including being taken hunting and shown how to use the resources of the area, across the inner Peninsula, including areas such as Lake Mille Mille, and Lake Louisa (both of which fall within the application area) – see Appendix B of the additional material at p. 14. The material states that one claimant possesses knowledge of his mother living at a camp at Disaster Bay with her brother and other elders, and that the claimants’ uncles visited him and taught him about his country at Disaster Bay. They told him about a site at Disaster Bay where two old spirits fought and where one still rests today – see Appendix B of the additional material at p. 15. [135] Within the material, yet another claimant provides information regarding the way in which his aunty used to sing a sacred song for women, that went from Goodenough Bay to One Arm Point (including parts of the application area). The material provides that that claimant has seen the rafts that the old people had made to travel across the King Sound (part of which falls within the application area) – see Appendix B of the additional material at p. 16. [136] Further, claimant Alec Dann in his affidavit states: ‘When the season is right we camp on the beach at Winawal [near Sandy Point, adjacent to the north-western border of the application area], like our old people used to do’ – at [15], indicating his knowledge of the way in which his predecessors spent time on the application area. [137] Regarding knowledge of specific predecessor persons, the additional material provides that claimant Rita Augustine, a Jabirr Jabirr elder, knew Ringarr Augustine (one of the apical ancestors, son of Walmandjin) well, that he was her husband’s father, and that he told her that his country was Banana Well, adjacent to the northern border of the application area. Ringarr Augustine is recorded as being one of historian Kaberry’s main informants during her research at Beagle Bay in 1934 – see Appendix A of the additional material at p. 11. [138] Appendix A of the additional material also provides that apical ancestors Mary and Din Din were sisters and that their father was from Madarr (within the application area). The material states that Mary’s daughter Lena was born at Disaster Bay, also within the application area, and was raised there for 8 or 9 years. Lena’s son, alive today, is a Nimanburu elder who remembers his mother’s strong desire to return to Disaster Bay. Further to this, the material provides that Mary’s son and grandson were both named after hills at Repulse Point (within the application area) – see Appendix A of the additional material at p. 13.

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[139] In light of the information of this nature before me, I have formed the view that the factual basis material is sufficient in addressing and supporting an assertion of an association held by the predecessors of the group with the application area during the period since sovereignty until the present time. I have information pertaining to each of the generations preceding the claimants, right back until the time of sustained European settlement, when it is asserted the apical ancestors of the group were occupying and inhabiting the application area. General statements within the factual basis material indicate that those apical ancestors are understood to be descendants of the Aboriginal persons inhabiting the area at sovereignty who possessed territorial rights and interests in that area. The information refers to specific locations within the application area, such that I am satisfied that the association of those predecessors was with the particular land and waters of the application area. [140] In the additional material, the applicant relies on the Court’s finding in Corunna that the Tribunal Member, in reviewing the decision of the Registrar’s delegate not to accept the application for registration, did not make an error of law in his understanding of the test at s. 190B(5)(a). Set out in Siopsis J’s decision in Corunna, the Member had stated: In short the test is not that there is evidence before the Delegate that each member of the claim group has an association over the whole area, but cumulatively, there is material before the delegate that shows an association between the whole group and the whole area of the claim – Corunna at [28]. [141] As set out above, it is my understanding that the claim group described in fact assert native title rights and interests in a much broader region than that covered by the current application. In doing so, the applicant submits that there is no requirement that the material addressing the group’s association be confined to the application area. Having turned my mind to the extent of that material, it is clear that the area addressed within the material covers the wider claim region, and is not limited to the area subject of this application. [142] The additional material speaks in detail of the relationship of the group as a whole, presently and historically, with the inner Peninsula area, asserting that it was an area regarded by the members of the group, in accordance with their laws and customs, as a ‘shared area or “common ground”’, while territorial interests in coastal parts of the claim region were more clearly demarcated between local groups. The material further asserts that claimants’ predecessors taught them the way in which their ancestors had shared that area. I note that the application area contains a relatively minor portion of coastal land, and largely comprises the inner part of the Peninsula, and on this basis, I accept that the material is sufficient in supporting an assertion that it is the whole of the group, including the predecessors of those persons, that have an association with the land and waters of the application area. [143] I have set out above the particular information to which I have had regard in forming the view that I am satisfied the material is sufficient to support an assertion regarding an association between the group and their predecessors with the application area. While the material addresses a much broader area, namely the claim region, in my view, that is not fatal to the application being able to meet the requirement at s. 190B(5)(a), and the material addressing the particular land and waters of the application area is sufficient. [144] For these reasons, therefore, I am satisfied that the material is sufficient to support an assertion that the native title claim group have, and the predecessors of those persons had, an association with the area.

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[145] The application meets the requirements of s. 190B(5)(a). The task at s. 190B(5)(b) [146] Section 190B(5)(b) requires that the Registrar’s delegate is satisfied that the factual basis in the application before her is sufficient to support an assertion that there exist traditional laws and customs acknowledged and observed by the group that give rise to their claim to native title rights and interests subject of the application. The assertion at subsection (b) of s. 190B(5), and the nature of the factual basis material necessary to meet that condition, have most comprehensively been addressed by the Court in the three Gudjala decisions. These are Gudjala 2007, Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala 2008), and Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009). [147] In Gudjala 2007, upon Dowsett J’s first approach to the matters dealt with pursuant to s. 190B(5), His Honour referred to the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 28 (Yorta Yorta), and sought to summarise the key principles enunciated in that case. This included reference to the definition of ‘native title rights and interests’ in s. 223(1) of the Act, by which the rights and interests held by the group are to be rights and interests possessed under traditional laws and customs. Referring to the decision in Yorta Yorta, Dowsett J held that ‘the requirement that the laws and customs be traditional means that they must have their source in a pre-sovereignty society and have been observed since that time by a continuing society’ – Gudjala 2007 at [63]. This approach was not criticized by the Full Court on appeal. [148] Dowsett J’s decision in Gudjala 2007 went further in addressing the particular meaning of ‘traditional laws and customs’ in the context of the registration test, and the type of information that the factual basis may be required to contain in satisfying the Registrar at that condition. His Honour’s comments suggest the factual basis may need to address the following:  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]; and  an explanation of the link between the claim group described in the application and the area covered by the application, which process may involve identifying a link between the apical ancestors and the society existing at sovereignty – at [66]. [149] The Full Court’s reasoning in Gudjala 2008 appears to support these findings, namely, that the factual basis produced by the applicant must speak to the society asserted to have existed at European settlement, observing identifiable laws and customs from which the group’s current traditional laws and customs derive – at [96]. [150] Regarding the requirement of a pre-sovereignty society, in Gudjala 2009, His Honour addressed the relationship between that society and its laws and customs, finding these two aspects of the factual basis material in support of the claim to be inextricably linked – at [27]. [151] Returning to the issue of the requisite factual basis at s. 190B(5)(b) in Gudjala 2009, Dowsett J held that the following matters may also need to be addressed:  an explanation as to how the current laws and customs of the group can be said to be ‘traditional’, that is, laws and customs derived from a pre-sovereignty society, and consisting of more than a mere assertion that those current laws and customs are traditional – at [29] and [52] to [54]; and

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 details of the claim group’s acknowledgement and observance of those traditional laws and customs pertaining to the particular land and waters of the claim area – at [74]. The applicant’s factual basis material – s. 190B(5)(b) [152] Having turned my mind to the entirety of the factual basis material before me, I have summarised below that information which I consider relevant for the purposes of s. 190B(5)(b):  sovereignty extended to the application area in 1828 – Schedule F at [24];  sustained European settlement of that area took place around the early 1880s – Schedule F at [25];  ethnographic, linguistic and anthropological research, dated as early as 1908, records Aboriginal people of the groups Jabirr Jabirr, Nyombal, Nyul Nyul, Bardi, Nimanbur, Nyikina and Yawuru inhabiting the claim region – Schedule F at [26];  historical research provides that a diverse group of Indigenous persons used the resources of the inland Peninsula area – Part 2 of the additional material at [9] and [13];  the apical ancestors named in Schedule A are descended from the Indigenous persons occupying the claim region in 1828, are known to be from the claim region at the time of sustained European settlement in the area, and were members of a society comprising persons identifying as Jabirr Jabirr, Nyombal, Nyul Nyul, Nimanbur and extending possibly to the groups Bardi, Yawuru and Nyikina – Schedule F at [33];  the claimants’ understanding of their rights and interests in the application area, and the way in which those rights and interests are derived, is part of a system of beliefs that have been passed down from the apical ancestors to their descendants in an unbroken link to the current native title claim group – Part 2 of the additional material at [7];  the system of laws and customs for the group is a regional system comprising mythology and ritual practices, referred to as the ‘Northern’ tradition, and it is an institution across and beyond the application area – Schedule F at [77];  in accordance with that system of traditional laws and customs, the native title claim group and their predecessors are the ‘owners’ of the application area, and the ‘right’ people for that country – Schedule F at [35];  their continued occupation, regulation of access and control over, and enjoyment of the area has, therefore, been proprietarily correct – Schedule F at [35];  the laws and customs of the group are heavily influenced and founded upon an understanding of the surrounding environment and locational context of the application area, namely that a large part of the land and waters of the application area and their resources, and rights and interests in these are enjoyed as ‘shared country’ – Schedule F at [38] and [39];  the daily lives and survival of the group’s members is dependent on this aspect of the group’s laws and customs – Schedule F at [39];  the native title claim group have been taught by their predecessors how their ancestors used and shared the inland Peninsula – Part 2 of the additional material at [15];  claimants today have been passed stories about the inland country, including mythological stories relating to certain places – Part 2 of the additional material at [16];  cultural information pursuant to the group’s laws and customs, including resource gathering techniques, traditional place names and sacred sites, and rules about access to those places was passed between elders and younger predecessors of the claimants during time spent in

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employment on pastoral stations following early settlement of the area – Part 2 of the additional material at [14];  claimants have acquired knowledge about the sea and inland resources passed down from their older family members, and claimants continue to use these resources accordingly – Part 2 of the additional material at [19];  pursuant to the group’s laws and customs, there are three levels at which members of the group identify their relationship to their country: locally, where rights and interests are possessed through descent from a male person acknowledged to be from the area; sub- regionally, where rights and interests accrue by way of association with a particular group label; individually and personally, where rights and interests derive from the holding of appropriate ritual knowledge regarding a particular mytho-ritual significant site – Schedule F at [42];  the strongest association and level of primary attachment is at the local level, in one’s buru – Schedule F at [44];  rights and interests at a local level can also be accrued through the association of an individual with another sub-regional group by way of another descent relationship, or by succession, where a formerly neighbouring local group becomes extinct or so reduced that it can no longer care for that area – Schedule F at [43];  laws and customs of the native title claim group include those relating to the control and regulation of access to the area, namely that strangers are required to seek permission from persons possessing rights and interests in the area and that such permission can be refused – Schedule F at [53];  laws and customs include those relating to restrictions of access to, and behaviour at, sites within the area regarded as important or sacred – Schedule F at [56] and [57];  laws and customs dictate ways in which the group exercise authority to speak for country, namely that that authority is usually vested in only one or a few of those persons (generally on the basis of seniority and/or knowledge of the area) – Schedule F at [58];  laws and customs include those surrounding the responsibilities of group members to care for and protect one’s country, where the extent of that responsibility is dependent on age, gender and ritual knowledge, and where men ultimately hold responsibilities for all law grounds – Schedule F at [59] to [61];  an example of claimants exercising this responsibility today is seen in the way they seek heritage protection for important sites, and frequently visit these places in order to monitor and maintain them – Part 2 of the additional material at [25] and [26];  laws and customs include those relating to cosmological beliefs about the area, including beliefs in bugarrigarr (ancestral beings), and that country continues to be ‘policed by’ the spirits of previous ancestors which remain in the area and that are benevolent towards the descendants of those ancestors – Schedule F at [64] and [67];  laws and customs include those regarding restrictions on access to knowledge of certain ancestral beings, where older persons generally carry this knowledge – Schedule F at [65];  laws and customs include those surrounding marriage between sections and moieties, and behaviour towards certain kin – Schedule F at [68] to [70];  the laws and customs of the group provide for a single language family for the entire Dampier Peninsula which includes sub-language varieties for the various sub-regional groups – Schedule F at [73];

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 laws and customs provide for certain Law ceremonies, such as male initiation, and observance of these ceremonies is part of the duty to ensure the land is properly looked after – Schedule F at [81] and [82];  corroborees are another aspect of laws and customs acknowledged and observed by the group – Schedule F at [83];  laws and customs include those surrounding decision-making, where the area concerned dictates whether a decision is made by a local interest holding group, jointly by members of a number of local groups, or at a regional level, where the decisions are made by senior persons with authority to speak for those areas – Schedule F at [84];  laws and customs acknowledged and observed by the members of the native title claim group are given normative force: a) through the beliefs in bugarrigarr; b) through kinship and relationships; c) by respect for the authority and guidance of elders, and; d) by social pressure, a fear of being ostracised or otherwise by punishment by elders or mythological forces for breach of laws or customs – Schedule F at [87]. [153] The application, therefore, contains considerable detail regarding the laws and customs acknowledged and observed by the native title claim group. Noting a number of statements within Schedule F, it is my understanding that the laws and customs described are those currently acknowledged and observed by the group – see Schedule F at [41]. Further assertions within the material indicate the relationship or link between these current laws and customs as described, and those acknowledged and observed by the group’s predecessors, including at sovereignty. Specifically, schedule F states that: The members of the native title claim group are today, and they and their predecessors at all times since sovereignty without interruption but subject to adaptive change have been, a body of persons united in and by their acknowledgement and observance of laws and customs – at [89]. [154] Schedule F also states that there has been continuous existence and acknowledgement and observance of the laws and customs described – at [90]. [155] In addition to these general statements, the factual basis material does, however, provide some detail regarding the laws and customs acknowledged and observed by the group’s predecessors, including the apical ancestors named at Schedule A who occupied the area around the time of sustained European settlement. Such information appears to have been gathered from historical sources and from claimants themselves, and includes personal information relating to certain named predecessors. This information includes statements about predecessor’s bush names, their status and authority within their local and/or sub-regional identification group, cosmological stories known by those persons, how they taught or were taught information regarding their country, their understanding and others’ understanding of their rights and interests as owners of places within the application area, and their relationship to other predecessors, through marriage and/or kin – see Appendix A of the additional material. [156] The additional material also includes information regarding the way claimants and their families exercise and have exercised their native title rights and interests in the application area in accordance with the laws and customs described, and also how they were taught various aspects of their laws and customs, as acknowledged and observed by their predecessors. An example of this is in Appendix B of the additional material which provides that one claimant was visited frequently by his uncles and taught by them about his country at Disaster Bay (within the

Attachment B Page 27 of 42 application area). He was taught about where to collect certain natural products and where to get water, and the names of places, stories and songs for that country. His uncles also shared stories of fishing and hunting trips that they had been on around Disaster Bay, and stories about spirits in the area, including information about how those spirits were to be appeased. The methods by which natural resources were taken and utilised by the claimant’s predecessors, for example for medicine, food, rafts or spears also formed part of the information shared by his uncles – See Appendix B at pp. 14 to 16. [157] The material acknowledges that there have been adaptive changes in the laws and customs acknowledged and observed by the group and its predecessors. An example of one such adaptive change stated in the material is the fact that at sovereignty the local group is likely to have involved greater patrifilial inheritance than it does today. While inheritance of rights and interests at the local level today is preferably through descent from a male group member, having either parent as a member of the group is the more general rule – Schedule F at [93]. My consideration – s. 190B(5)(b) [158] In light of the information summarised above, it is my understanding that the factual basis material asserts that there has been relatively minimal change, or almost no change at all, in the laws and customs acknowledged and observed by the group’s predecessors at European settlement, and the system of laws and customs acknowledged and observed by the native title claim group today. On that basis, I also understand that the material asserts the laws and customs acknowledged and observed by the group to be ‘traditional’ laws and customs. I return to consider this concept in more detail below. [159] Regarding the requirement of a relevant pre-sovereignty society, in my view, the factual basis material supports an assertion that there was such a society, and that the nature of that society, whose members occupied the application area and surrounding region at the time of early European settlement, was that it was a society comprising various sub-regional label groups who shared rights and interests in the inner Peninsula area. Certain historical records and sources (as early as 1908) are referred to in support of this assertion, as is the fact that claimants were taught by their predecessors about the way in which their ancestors shared the lands and waters of application area. [160] Further in this regard, the material provides that elderly claimants today possess living knowledge of some of the apical ancestors and their descendants. That knowledge, set out in the factual basis material, in my view, gives further insight into the nature of the society occupying the area at European settlement, and the laws and customs which bound that society. For example, Appendix A of the additional material provides that one claimant, a Nimanburu elder, is the grandson of apical ancestor Mary, and that Mary’s mother was stolen by Mary’s father from a neighbouring sub-group. The material provides that Mary’s daughter, Lena, was born in Disaster Bay, and that the claimant remembers his mother’s strong desire to return to that place. It is further provided that Mary’s sons were named after hills at Repulse Bay, and it is my understanding that this was on the basis that these men were accepted as having rights and interests in these places. The claimant today asserts his connection to his country at Disaster Bay as deriving from his descent from his mother, Lena, and through her descent from Mary. [161] In my view, this provides an illustration of the way in which rights and interests were held by the claimants’ predecessors, including the apical ancestors named, and supports the general

Attachment B Page 28 of 42 assertion within the material that pursuant to the group’s laws and customs, those rights and interests are primarily held at the family or local level. [162] While this information speaks to a society in existence roughly 50 years after sovereignty, in the early 1880s, noting the isolated location of the application area and the unlikely occurrence of any significant interruption to that society prior to this time, I am prepared to accept that the factual basis supports an assertion that the society inhabiting the area at the time of sustained European settlement was relatively unchanged from the society occupying the area at sovereignty. [163] I also consider that the factual basis material asserts a clear link between the apical ancestors named in the application, and the society described, namely that those apical ancestors are known to have inhabited the area, and hence been members of that society, at around the time of European settlement. I have already set out at s. 190B(5)(a) above, my reasons for forming the view that the factual basis is sufficient in supporting this assertion, namely on the basis that the birth dates of relevant apical ancestors stated in the material places them in the application area in around the early 1880s. [164] From the material summarised above, I am satisfied that the factual basis is sufficient in supporting an assertion that the laws and customs of the group are laws and customs in relation to the particular land and waters of the application area. The information provided in the additional material, particularly at Appendix B, gives multiple examples of the way in which the claimants and their predecessors have exercised their rights and interests in the area, with reference to specific locations within the boundary of the area, pursuant to the group’s laws and customs. One such example is where information from one claimant provides that he knows the corroboree songs which run through middle Dampier Peninsula, many of which start at Disaster Bay, and that he has danced these songs, and was taught how to dance by the old people – see Appendix B at p. 15. The material also gives numerous examples of the way in which claimants and their predecessors collected natural resources, and hunted and fished at locations within the application area, activities they understand to be their right in accordance with the laws and customs of the group – see for example Appendix B at pp. 14 to 15. [165] I now turn to consider whether the system of laws and customs asserted by the factual basis material can be said to be ‘traditional’. In Gudjala 2009, Dowsett J discussed two ways in which His Honour considered that favourable inferences could be made in relation to factual basis material in support of a claim for the purposes of satisfying s. 190B(5)(b). The first approach considered by His Honour was where the factual basis allowed for the identification of ‘a group’s continuous post-sovereignty history in such detail that one can infer that it must have existed at sovereignty simply because it clearly existed shortly thereafter and has continued since’ – at [30]. In such instances, His Honour held that it would similarly be possible ‘to infer that the assertion of sovereignty had not significantly affected its laws and customs’ – at [30]. Where the applicant sought to rely on a ‘continuous history’ of the group and its acknowledgement and observance of laws and customs, Dowsett J held that ‘a general description of the factual basis of the claim will necessarily involve a general description of that history’ – at [30]. [166] I have noted above my understanding of the material that there are only two or three generations separating the claimants and the apical ancestors who were part of the asserted society occupying the area at European settlement. I have also noted my acceptance of the

Attachment B Page 29 of 42 assertion that this society was relatively unchanged from the one inhabiting the area at sovereignty, some 50 years prior. [167] The material asserts that claimants today possess a living knowledge of some of those apical persons who are known to be from areas within the application area. It is my view that the details of that knowledge provided in the material, which includes personal information going to the lives and practices of the persons from whom claimants are descended, and ways in which those persons exercised their rights and interests under the group’s laws and customs, goes towards an assertion of a ‘continuous history’ of the group. [168] Further support for this assertion, in my view, is provided in the factual basis material going to the way in which knowledge of the group’s laws and customs have been transferred between these generations. Each of the claimants named in the material gives details of the way in which their grandparents and elders shared with them information about the application area, including mythological stories and songs for places within the application area, and methods of utilising natural products taken from the area. The material asserts that claimants were also passed specific knowledge of the way in which the ‘old people’ exercised their rights and interests in the area, and how certain laws and customs were acknowledged and observed by their predecessors. It is my view that information of this nature supports the more general assertion in the material that ‘there has been continuous existence and acknowledgement of the [group’s] laws and customs’ – see Schedule F at [90]. [169] In forming the view that the factual basis material does support an assertion of a continuous history of the group and its laws and customs, and consequently, that that system of laws and customs is ‘traditional’, I have also had regard to the information within the application that speaks to the way in which the laws and customs of the group are given normative force. Schedule F (at [87]) asserts that this is achieved in four ways: firstly, through beliefs in the ancestral spirits that continue to inhabit and ‘police’ the area; secondly, through kinship and relationships; thirdly, through respect for the authority and guidance of elders; and fourthly, through social pressure, where claimants fear being ostracised or punished by elders or mythological forces for breaching laws and customs. [170] In my view, certain statements and details within the material provide further support for each of these aspects regarding the normative force by which the system of laws and customs is and has been, maintained. In particular, I note that each of the claimants named within the factual basis material provides details of their understanding of the spiritual forces present in the landscape of the application area, and how this manifests itself in their strict adherence to certain behaviours and conduct whilst on the application area. For example, information from members of one claimant family provides that that family know of a sandbar located in King Sound (part of which is within the application area) that people have to avoid unless their totem is right. The family assert that if the wrong person goes there, this will result in a big storm or make the owners of the area sick – see Appendix B of the additional material at p. 16. [171] Another example is information pertaining to one claimant being taught by his uncles to leave water and tobacco on country for the spirits of the old people, and the fact that he calls out to the spirits of the old people (including his mother) to give him luck while fishing in the area – see Appendix B at p. 15. Further to this, the material states that during the time when certain families were being granted leases over blocks of land in the application area, where those

Attachment B Page 30 of 42 families who did not have a right to speak for the area did not seek the permission of the traditional owners for the block of land before being granted legal rights over it, they were considered by the rest of the group to have behaved wrongly – see Part 2 of the additional material at [24]. [172] These examples, in my view, all speak to the underlying aspects of the group’s laws and customs asserted as giving that system normative force. I consider that the information indicates that the claimants do, in fact, have a real and substantive belief in the power and presence of their ancestor’s spirits within the landscape, and that this manifests itself in strict adherence to the system of laws and customs passed down to them by their predecessors. Similarly, the information indicates that a failure to adhere to these laws and customs is likely to result in a person or family being ostracised by other members of the group. In this way, I consider that the factual basis material supports an assertion that the members of the claim group feel bound by, and are bound by, their system of laws and customs, and its associated appropriate conduct as taught to them by their elders and the old people. [173] Noting that a failure to adhere to these laws and customs is believed by members of the claim group to bring punishment and/or adverse ramifications, in my view, it can be inferred that during the period of the two or three interceding generations between the apical ancestors and the claimants, there has been little or almost no change in the system of laws and customs acknowledged and observed by the group. [174] Notwithstanding this, I note that the factual basis material does acknowledge that some change has occurred. In my view, however, with reference to the adaptations described, these changes are minimal, and do not affect the substance of the group’s laws and customs. [175] In summary, therefore, I have formed the view that the factual basis is sufficient to support an assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests. I have formed this view with regard to a number of factors. [176] Firstly, I consider the factual basis sufficient to support an assertion of a society of indigenous persons occupying the application area at the time of European settlement whose members were bound by the common observance of normative laws and customs. Secondly, it is my view that nothing before me suggests that there was any prior significant interruption to that society and its laws and customs, and therefore, that that society was relatively unchanged from the one inhabiting the application area at sovereignty. Thirdly, I consider that the factual basis material is sufficient in supporting an asserted link between the named apical ancestors and the society in the area at European settlement, and that the laws and customs described are in relation to the land and waters of the application area. [177] Fourthly, and finally, I have formed the view that the laws and customs acknowledged and observed by the group are traditional laws and customs. In this regard, I consider the factual basis sufficient to support a clear transmission of the system of laws and customs described, from the apical ancestors forming part of the society at European settlement through the intervening generations to the claimants today, and that those laws and customs are underpinned by a strong belief held by members of the group in the spirits of their ancestors continuing to occupy the application area and ‘police’ the area, including claimants’ behaviour in relation to that area. From this, I consider that the system of laws and customs described within the factual basis

Attachment B Page 31 of 42 material, as acknowledged and observed by the claim group, is rooted in, and derived from, the normative system acknowledged and observed by the pre-sovereignty society. [178] For these reasons, I am satisfied that the factual basis material is sufficient to support an assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests. The application meets the condition at s. 190B(5)(b). The task at s. 190B(5)(c) [179] Noting the wording of the assertion at s. 190B(5)(c), that the native title claim group have continued to hold their native title in accordance with ‘those traditional laws and customs’, it is my understanding that the requirement at this condition flows directly from that expressed at subsection (b) of s. 190B(5) – see Martin at [29]. [180] The decision in Yorta Yorta, discussed in my reasons above, held that the meaning of ‘traditional laws and customs’ comprised two elements. Firstly, the origins of the content of those laws and customs were to be found in the normative rules of a relevant pre-sovereignty society, and secondly, the acknowledgement and observance of those laws and customs was to have continued substantially uninterrupted since sovereignty – Yorta Yorta at [46] and [87]. [181] It is my understanding that the requirement at s. 190B(5)(c) can be equated with the second element enunciated by the High Court regarding the meaning and content of ‘traditional laws and customs’. Dowsett J’s decision in Gudjala 2007 appears to provide support for this (see for example at [63] and [82]), and in discussing the requirement at this condition, His Honour held that the factual basis may be required to address the following matters:  that there was a society that existed at sovereignty that observed traditional laws and customs from which the identified existing laws and customs were derived, and were traditionally passed to the current members of the claim group; and  that there has been a continual observance of traditional laws and customs going back to sovereignty or at least European settlement – at [82].

The applicant’s factual basis material – s. 190B(5)(c) [182] The applicant’s factual basis material that speaks to the assertion at s. 190B(5)(c) has been summarised below:  there has been continuous existence, and acknowledgement and observance of the laws and customs described – Schedule F at [90];  the laws and customs referred to as currently acknowledged and observed by the group are rooted in and derived from those laws and customs as they were at sovereignty – Schedule F at [91];  the members of the native title claim group are today, and they and their predecessors at all times since sovereignty without interruption, have been a body of persons united in and by their acknowledgment and observance of laws and customs – Schedule F at [92];  changes in the system of laws and customs have occurred and include the fact that at sovereignty the local group would have involved greater patrifilial inheritance than it does today – Schedule F at [93];

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 at all times since sovereignty the claimants and their predecessors have enjoyed access to the claim area in accordance with the laws and customs of the group, and have continually resided in the application area – Schedule F at [95];  the members of the group and their predecessors have continued to conduct a range of activities on the application area since sovereignty, including using the resources of the area for sustenance and trade in pursuit of their entitlements held under the group’s laws and customs – Schedule F at [27];  many members of the claim group were born in and lived much of their lives within the claim region and many members of the native title claim group continue to do so – Schedule F at [34];  the laws and customs acknowledged and observed by the group are given normative force through the beliefs in ancestor spirits continuing to occupy the area; through kinship and relationships; by respect for the authority and guidance of elders; and through social pressure, including a fear of being ostracised or otherwise punished by elders or mythological forces for breach of laws or customs – Schedule F at [87];  claimants possess living knowledge of their predecessors including some of the named apical ancestors, and personal details regarding those persons such as where they were born, where they lived and/or grew up, information about their children, and about their seniority within the wider group – Appendix A of the additional material;  claimants were taught by their grandparents and elders (who were generally persons acknowledged as having a particular role in relation to holding that knowledge) how to utilise natural products from the application area, how to hunt and fish, locations of significant places and how to appease spirits in those places, and corroboree dances and songs for sites in the area – see Appendix B of the additional material. [183] As discussed in my reasons at s. 190B(5)(b), I am satisfied that the factual basis is sufficient to support an assertion that there exist traditional laws and customs acknowledged and observed by the group, that is, laws and customs derived from those of a society at sovereignty. I have also discussed above, my view that the factual basis is sufficient in supporting an assertion of the way in which those laws and customs have been transferred from the ancestors in the area at sovereignty, through the intervening generations, to the claim group members today. [184] In addition to this, it is my view that the mythological and spiritual underpinning of the system of laws and customs asserted, through which that system obtains its normative force, has resulted in a strict adherence to the rules and conduct prescribed by those laws and customs, as taught to them by their predecessors. In this way, I consider that the factual basis supports an assertion that the claim group members and their predecessors all experience a sense of being bound by those laws and customs, noting their genuine fear of adverse implications should they fail to abide by them. [185] Noting also that the information contained in the factual basis provides that the claim group and their predecessors have maintained a continuous occupation of the application area and surrounding region, thus allowing them to continue to exercise their native title rights and interests in relation to the area pursuant to the group’s laws and customs, I have formed the view that the factual basis is sufficient in supporting an assertion that the native title claim group have continued to hold their native title in accordance with those traditional laws and customs. [186] The application meets the requirements of s. 190B(5)(c).

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Conclusion at s. 190B(5) [187] The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5). 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. [188] The claimed native title rights and interests that I consider can be prima facie established are identified in my reasons below. [189] It is clear from the wording of the condition at s. 190B(6) that there is no requirement that all of the rights and interests claimed must be, prima facie, established. While only those rights and interests that I consider can be prima facie established will be recorded in an entry on the Register of Native Title Claims, I note that the failure of some rights and interests to satisfy the requirements at this stage of the test is not fatal to the application – see Doepel at [16]. [190] In undertaking the task at s. 190B(6), I am of the view that the meaning of the term ‘prima facie’ is of key importance. In considering the delegate’s role at this condition of the registration test, Mansfield J in Doepel approved the meaning accepted by the High Court in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595. In that case, the High Court held that it was the ordinary meaning of the phrase, namely, ‘at first sight; on the face of it; as appears at first sight without investigation’, that was to be applied in the circumstances – at [615] to [616]. [191] In approving this meaning in relation to the task at s. 190B(6), Mansfield J held that ‘if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis’ – at [135]. [192] Noting that the focus of my consideration at this condition of the test is ‘native title rights and interests’, it is my view that that consideration is to be undertaken with reference to the definition of that term, set out in s. 223(1) of the Act. That section provides that: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. [193] In this way, it is my understanding that the rights and interests claimed must be shown to be rights and interests that exist under the traditional laws and customs of the Bindunbur native title claim group, rights and interests in relation to the land and waters of the application area, and rights and interests recognizable under the common law, and that have not been extinguished over the whole of the application area.

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Right to exclusive possession [194] Regarding a right to exclusive possession, the High Court in Western Australia v Ward [2002] HCA 28 (Ward HC) held that: …a core concept of traditional laws and customs is the right to be asked permission and to ‘speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others – at [88]. [195] Following the decision in Ward HC, in a discussion of the case law surrounding a right to exclusive possession and what must be shown by the claim group, the Full Court in Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths) found that it was incorrect to approach the question with common law concepts of proprietary interests in mind. The Full Court held that: … the question whether the native title rights of a given native title claim group include the right to exclude others from the land subject of their application does not depend upon any formal classification of such rights as usufructuary or proprietary. It depends rather on consideration of what the evidence discloses about their content under traditional law and custom. It is not a necessary condition of the existence of a right of exclusive use and occupation that the evidence discloses rights and interests that rise significantly above the level of usufructuary rights – at [71]. [196] The Full Court also stressed the emphasis, in the context of traditional laws and customs, to be placed upon the relationship between the members of the claim group at the time of sovereignty and persons outside the relevant community at that time, being relationships between indigenous persons – at [127]. [197] From the case law surrounding a native title right to exclusive possession, for the purposes of s. 190B(6), it is my view that what must be shown is how, under the traditional laws and customs of the native title claim group, the members of that group are effectively able to ‘exclude from their country people not of their community’ – see Griffiths at [127]. [198] The information contained in the application and the additional material, in my view, speak to a right of exclusive possession, held by the members of the group in accordance with their traditional laws and customs. For example, Schedule F states that: Strangers ideally must ask permission from, and can be refused access or have conditions imposed on access to an area or be required to be accompanied by, persons recognised as possessing rights or interests in and knowledge of, or authority in respect of, the area – Schedule F at [53]. [199] Further detail of the laws and customs of the group surrounding the right to speak for and make decisions about country is given in the additional material. It provides that this exclusive right is understood to comprise rights to protect, make decisions about and to speak for country, and that these rights are held by claimants as the descendants of their ancestors who held and exercised those same rights – at [22]. The material states that: Claimants assert that there are a number of reasons behind these laws and customs. Firstly, seeking permission is a matter of respect for the people who hold rights in the land. Secondly permission is sought from the rightful family or senior person because that person has knowledge of the country and can warn the visitor of potential physical dangers such as tides and weather. Finally, seeking permission also provides some spiritual protection as the rightful people for the country are knowledgeable about the spiritual features of the landscape and understand whether a particular area is safe to enter – at [23].

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[200] The additional material also gives a recent example of the way in which this particular right was exercised by the claimants in relation to land within the application area. The material provides that during the granting of leases over blocks of land within the area, ‘[f]amilies who were being granted blocks on country which they did not have a right to speak for, sought permission from certain traditional owners before obtaining the legal rights to these leases’ – at [24]. The material further provides that those families that did not seek permission were considered to have ‘behaved wrongly’. It is also stated that claimants continue to seek permission in order to travel across one another’s country within the claim area to hunt and fish – at [24]. [201] Statements made by claimants in the s. 62(1)(a) affidavits accompanying the application similarly reveal some of the content and operation of the claimed right to exclusive occupation, and the claimants’ understanding of the requirement to ask permission to access an area. One claimant states: I was shown that country as a child by my father and grandfather and other older relations and taught about how to look after and use my country. Because that is my buru I am connected to that country and I have the right to use it without asking anyone for permission – Affidavit of Ernest Damien Manado at [4]. [202] Having been satisfied at s. 190B(5)(b) regarding a system of traditional laws and customs acknowledged and observed by the native title claim group, in light of the material set out above, I have formed the view that the right to exclusive possession is, prima facie, established. The material before me speaks in considerable detail of the land tenure system under which the claimants and their predecessors considered themselves to be the rightful owners of the application area, and whereby each family holds exclusive rights in relation to their buru. The material asserts that those exclusive rights arise by way of an individual being descended from a particular apical ancestor known to have physically occupied the area at the time of European settlement, and who is understood to continue to inhabit the area in spirit form. I also have clear examples of the way in which the claimants continue to exercise exclusive rights on the application area, as taught to them by their predecessors, and the ramifications understood to flow from a failure to adhere to laws and customs surrounding the exercise of these rights. Noting the clear transmission of the traditional laws and customs through the preceding generations to the claimants, the assertion of which I was satisfied the factual basis supported in relation to s. 190B(5)(b), I am of the view that the right is one held in accordance with those traditional laws and customs. [203] I consider, therefore, that the right to exclusive possession is, prima facie, established. Non-exclusive rights and interests [204] The remaining rights and interests claimed by the native title claim group and listed in Schedule E, are claimed in relation to those parts of the application area where exclusive rights cannot be recognised – see Schedule E at [13] and [14]. These rights and interests, I understand, therefore, are non-exclusive in nature. Right to have access to, remain on and use the land and waters [205] There is considerable material before me that, in my view, speaks to a right held by the group to have access to, remain on and use the land and waters of the application area. Both the historical and anthropological sources referred to, and the information provided by the claimants

Attachment B Page 36 of 42 themselves, identify the label groups of which the native title claim group is comprised, as being associated with the land and waters of the application area, at the time of European settlement and in the period following. [206] Schedule F provides some general statements in this regard, and asserts that: The members of the native title claim group and their predecessors have maintained continuity of their occupation and use of and connection and association with the claim region including the claim area from the time of sustained European contact to the present day. Many members of the claim group continue to live within the claim region – Schedule F at [28] and [29]. [207] The s. 62(1)(a) affidavits sworn by the applicant persons that accompany the application also include statements regarding that person’s belief in, and exercise of, their and their family’s right to access and spend time on the application area. One applicant person provides that: My family and I look after that country and we have had an outstation there for about twenty years. The outstation is called Madarr, after the name of my buru. Although I lived most of my life at Broome I have gone many times to my buru to fish, camp, collect bush foods and look after my country. I know the places in my buru where people must not go. I know all the right things to do in that country and I have taught these things to my children and grandchildren. I believe that my sister is currently camping at Madarr – affidavit of Ernest Damien Manado at [5] and [6]. [208] Regarding whether the right is one that is held in accordance with the traditional laws and customs of the group, the additional material provides that the predecessors of the claim group continued to occupy and spend time on the inland Peninsula throughout the period following sustained European settlement, through the employment of those persons on pastoral properties across the area – Part 2 of the additional material at [14]. [209] In light of the material set out above, I consider that the right to have access to, remain on and use the land and waters of the application area is, prima facie, established, and that it is a right held by the claimants and their predecessors in accordance with their traditional laws and customs. Access and take the resources of the land and waters [210] Again, much of the factual basis material before me speaks to a right to access and take the resources of the application area, as exercised by the claimants’ predecessors and as it continues to be exercised by the claimants today. An example of this material is the following statement by one of the applicant persons: …My mother’s sister Patsy Ah Choo has an outstation in our buru called Jinyaadi. People from my family go up and down to stay at Jinyaadi during the dry season when the road can be used. When we are there we go hunting and fishing, and keep an eye on our buru. It’s a good spot to collect flatback turtle eggs – affidavit of Phillip McCarthy at [14]. [211] The additional material similarly provides information pertaining to each of the claimants and their predecessors and how they have exercised the right in accordance with their traditional laws and customs. The material asserts that: Paul’s uncles told him they would hunt turtle and dugong by making a raft from mangrove wood tied together, and using more wood for paddles. They would jump from the raft when they saw a turtle and grab it – Appendix B of the additional material at p. 15.

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[212] Within the material, there is also some discussion of the way in which the claimants’ predecessors taught them about their right to use the resources of the area with which they and their family were associated, namely their buru, and the way in which the resources of the inland Peninsula area were shared between subgroups and families – see Appendix B of the additional material. They were taught that this was the way in which their ancestors had used the area – see for example Part 2 of the additional material at [15]. [213] The information of this nature, in my view, allows me to consider that the right to access and take the resources of the land and waters of the application area is, prima facie, established. Protect places, areas and things of traditional significance [214] There are a number of references within the material to claimants’ understanding that there is a strong responsibility attaching to their exclusive rights and interests within their buru, that arises under the group’s traditional laws and customs. This is explained in Schedule F in the following way: Persons who hold rights or interests in an area have responsibilities and, concomitantly, rights to ‘look after’, care for, protect and maintain the area including its important sites and spiritual features – Schedule F at [59]. [215] Statements made by claimants indicate that claimants feel it is their duty to ensure the land and waters within their buru, and within the application area, are maintained and protected. The following statement made by a claim group member is an example of such material: In the Dampier Peninsula, families have local areas of land and waters we call a buru. My buru is on the coast near Valentine Island. It is my country because it was my great grandfather Bobby Ah Choo’s country. I was shown that country as a child by my grandfather Billy Ah Choo and taught about how to look after and use my country. I have kept an eye on that country for all my life and although I lived most of my life at One Arm Point I go to my buru to fish, camp and collect bush foods and look after my country. I know all the right things to do in that country because my grandfather told me. I want to pass these things on to my young children and grandchildren when they’re old enough – affidavit of Phillip McCarthy at [3]. [216] Knowledge regarding significant sites pursuant to the group’s dreaming and creation stories has been passed down to the claimants in accordance with their traditional laws and customs. The material explains the way in which their duty to protect such places has been passed down to them from their ancestors, and the way in which they have sought to uphold this responsibility: Current claimants also continue the protection of important cultural sites which have significance in dreaming stories. An example of this is a significant site at Disaster Bay which is involved in dreaming stories about the characters called Galalung and Mino. This story is generally known by claimants today, having been taught to them by their ancestors. Many details of this story are restricted to men. Details of this story are recorded in anthropological writings from the early 20th century. The Manado and Cox families have located their outstations close to these significant sites, which has enabled them to supervise these sites – Part 2 of the additional material at [26]. [217] In light of the material above, contained in the application and additional material, I consider that the right to protect places, areas and things of traditional significance is, prima facie, established, and that it is a right that has been passed down to the claimants in accordance with the group’s traditional laws and customs.

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[218] The application satisfies the condition of s. 190B(6). Subsection 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group: (c) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or (d) 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: (iv) the Crown in any capacity, or (v) a statutory authority of the Crown in any capacity, or (vi) 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. [219] Noting the wording of the provision, it is my view that the focus of the task at s. 190B(7) is a relatively confined one, that focus being upon the relationship of at least one member of the claim group with some part of the application area – see Doepel at [18]. Regarding material of the type necessary to satisfy the condition, Mansfield J in Doepel held that s. 190B(7) required the Registrar to be satisfied of ‘a particular fact or particular facts’ and consequently, that it ‘requires evidentiary material to be presented to the Registrar’ – at [18]. His Honour clarified, however, that at s. 190B(7) the Registrar was not to approach the material as would a Court in a hearing for a determination of native title rights and interests – at [18]. [220] The use of the word ‘traditional’ in relation to the physical connection asserted, in my view, suggests that that connection must be shown to be in accordance with the traditional laws and customs of the group, that is, laws and customs rooted in the normative system of a society that existed at sovereignty – see Gudjala 2007 at [89]. [221] The decision in Yorta Yorta indicates that an actual presence on the land may be required to be demonstrated by the material, while the explanatory memorandum to the Native Title Amendment Bill 1997 provides that the connection described by s. 190B(7) ‘must amount to more than a transitory access or intermittent non-native title access’ – at [29.19]. [222] In light of the finding in Doepel and in Gudjala 2007, I am of the view that the material before me must speak specifically to a ‘traditional physical connection’ held by at least one member of the claim group, in order to satisfy the requirement at s. 190B(7). Having turned my mind to the extent of that material, I consider that it does speak to such a connection, held by Paul Cox. [223] The additional material provides various details regarding an asserted connection of Mr Cox with the area around Disaster Bay and Repulse Point. Those details include that Mr Cox considers this area, referred to as Madarr, to be his buru, and that his rights and interests in that area arise by way of his descent from apical ancestor Mary – Appendix B of the additional material at p. 14. Mary’s daughter Lena, Mr Cox’s mother, was born in the Disaster Bay area, and the material states that Mr Cox remembers his mother’s strong desire to return to that place – Appendix A of the additional material at p. 13.

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[224] Regarding the nature of the connection of Mr Cox with this area, the additional material provides that as a child, Mr Cox was taught by his uncles about the land and waters of his buru. They shared knowledge with him about how to gather and use natural resources from the area, where to find water on his country, the names and locations of important or significant sites, creation and dreamtime stories and songs for the application area, and corroboree dances. The material also states that Mr Cox’s mother took him and his son through the inland Peninsula area to go hunting and gather bush foods and medicines. In addition to this, the material provides that Mr Cox knows the tides of Disaster Bay and King Sound, and that he goes out on the tide to look for stingray and crabs. [225] From this information within the application and additional material, I have formed the view that I am satisfied that Mr Cox has had, and continues to have, a physical connection with the land and waters of the application area, primarily the Disaster Bay area. Noting that this connection is understood by Mr Cox to arise by way of his descent from apical ancestor Mary, through his mother Lena, and that the extent of the knowledge possessed by Mr Cox about the area was passed to him by his uncles and predecessors in accordance with the group’s traditional laws and customs, it is my view that this connection is traditional in nature. [226] The application satisfies the condition of s. 190B(7). 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.

Section 61A provides: (5) A native title determination application must not be made in relation to an area for which there is an approved determination of native title. (6) If : (c) a previous exclusive possession act (see s. 23B) was done, and (d) either: (iii) the act was an act attributable to the Commonwealth, or (iv) 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; a claimant application must not be made that covers any of the area. (7) If: (c) a previous non-exclusive possession act (see s. 23F) was done, and (d) either: (iii) the act was an act attributable to the Commonwealth, or (iv) 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; a claimant application must not be made in which any of the native title rights and interests confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others. (8) However, subsection(2) and (3) does not apply if:

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(c) 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 (d) the application states that ss. 47, 47A or 47B, as the case may be, applies to it. [227] In the reasons below, I look at each part of s. 61A against what is contained in the application and accompanying documents and in any other information before me as to whether the application should not have been made.

Section 61A(1) [228] Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. [229] The geospatial assessment confirms that there is no determination of native title that covers any part of the area covered by the agreement. [230] In my view the application does not offend the provisions of s. 61A(1).

Section 61A(2) [231] Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply. [232] Schedule B of the application lists a number of general exclusion clauses, that is, areas that may fall within the external boundary of the application area, but that are not covered by the application. I note that areas covered by previous exclusive possession acts are included within those areas that are not covered by the application. [233] In my view the application does not offend the provisions of s. 61A(2).

Section 61A(3) [234] Section 61A(3) provides that an 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 previous non-exclusive possession act was done, unless the circumstances described in s. 61A(4) apply. [235] A list of the rights and interests claimed subject of the application appears at Schedule E. Schedule E provides that a right of exclusive possession, set out in paragraph [12], is only claimed ‘where there has been no extinguishment to any extent of native title or where any extinguishment is to be disregarded’. [236] In my view, the application does not offend the provisions of s. 61A(3). [237] The application satisfies the condition of s. 190B(8). Subsection 190B(9) No extinguishment etc. of claimed native title

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The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that: (d) 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 (e) 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 (f) 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. [238] I consider each of the subconditions of s. 190B(9) in my reasons below.

Section 190B(9)(a) [239] Schedule Q of the application provides that the applicant does not make any claim to any minerals, petroleum or gas wholly owned by the Crown. [240] The application satisfies the subcondition of s. 190B(9)(a).

Section 190B(9)(b) [241] Schedule P of the application provides that no claim of exclusive possession is made in relation to any offshore place. [242] The application satisfies the subcondition of s. 190B(9)(b).

Section 190B(9)(c) [243] There is nothing within the application and accompanying documents that suggests or indicates that the native title rights and interests claimed have otherwise been extinguished. [244] The application satisfies the subcondition of s. 190B(9)(c). [245] 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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Attachment C Map of the application area

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[End of document]

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