Registration test decision Edited

Application name Adnyamathanha People #5

Name of applicant Angelina Stuart, Michael Anderson, Mark McKenzie Snr, Deidre McKenzie, Anthony Clark and Beverly Patterson

State/territory/region South Australia

NNTT file no. SC2012/004

Federal Court of Australia file no. SAD277/12

Date application made 8 November 2012

Name of delegate Lisa Jowett

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 do not accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth). For the purposes of s. 190D(3), my opinion is that the claim does satisfy all of the conditions in s. 190B. Nevertheless I cannot accept the claim for registration because the claim does not satisfy all of the conditions in s. 190C.

Date of decision: 22 February 2013

______Lisa Jowett 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 12 October 2012 and made pursuant to s. 99 of the Act.

Facilitating timely and effective outcomes Reasons for decision

Table of contents

Introduction ...... 3 Application overview...... 3 Registration test ...... 3 Information considered when making the decision ...... 3 Procedural fairness steps ...... 4 Procedural and other conditions: s. 190C ...... 5 Subsection 190C(2) Information etc. required by ss. 61 and 62 ...... 5 Native title claim group: s. 61(1) ...... 5 Name and address for service: s. 61(3) ...... 6 Native title claim group named/described: s. 61(4) ...... 6 Affidavits in prescribed form: s. 62(1)(a) ...... 6 Application contains details required by s. 62(2): s. 62(1)(b) ...... 7 Information about the boundaries of the area: s. 62(2)(a) ...... 7 Map of external boundaries of the area: s. 62(2)(b) ...... 7 Searches: s. 62(2)(c) ...... 7 Description of native title rights and interests: s. 62(2)(d) ...... 7 Description of factual basis: s. 62(2)(e) ...... 8 Activities: s. 62(2)(f) ...... 8 Other applications: s. 62(2)(g) ...... 8 Section 24MD(6B)(c) notices: s. 62(2)(ga) ...... 8 Section 29 notices: s. 62(2)(h) ...... 9 Subsection 190C(3) No common claimants in previous overlapping applications ...... 9 Subsection 190C(4) Authorisation/certification ...... 10 Merit conditions: s. 190B ...... 17 Subsection 190B(2) Identification of area subject to native title ...... 17 Subsection 190B(3) Identification of the native title claim group ...... 18 Subsection 190B(4) Native title rights and interests identifiable ...... 19 Subsection 190B(5) Factual basis for claimed native title ...... 21 Subsection 190B(6) Prima facie case ...... 30 Subsection 190B(7) Traditional physical connection ...... 31 Subsection 190B(8) No failure to comply with s. 61A ...... 32 Subsection 190B(9) No extinguishment etc. of claimed native title ...... 34 Attachment A Summary of registration test result ...... 35 Attachment B Documents and information considered ...... 38

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 2 Decided: 22 February 2013 Introduction This document sets out my reasons, as the Registrar’s delegate, for the decision not to accept the Adnyamathanha People #5 claimant application for registration pursuant to s. 190A of the Act. 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 The area for this application covers the lake bed and shores of Lake Torrens as well as Andamooka Island located on the western side of the lake. The eastern boundary of the claim area is directly adjacent to land and waters the subject of the native title determination in Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 (30 March 2009). The area of the application is fully overlapped by the Kokatha Uwankara Native Title Claim.

Registration test The Registrar of the Federal Court of Australia (the Court) gave a copy of the Adnyamathanha People #5 claimant application to the Native Title Registrar (the Registrar) on 8 November 2012 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. Given that the claimant application was made on 8 November 2012 and has not been amended, I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply. 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. 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. Pursuant to ss. 190A(6) and (6B), the claim in the application must not be accepted for registration because it does not satisfy all of the conditions in ss. 190B and 190C. A summary of the result for each condition is provided at Attachment C.

Information considered when making the decision Subsection 190A(3) directs me to have regard to certain information when testing an application for registration; there is certain information that I must have regard to, but I may have regard to other information, as I consider appropriate.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 3 Decided: 22 February 2013 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. A Preliminary Assessment of the application was provided to the representative of the applicant on 5 December 2012 that outlined deficiencies in the application which meant that it was not likely to meet the conditions of the registration test at ss. 190C(4), 190B(5), (6) and (7). In response, on 7 January 2013, the applicant provided some additional material in support of the application at these conditions. Attachment D of these reasons lists all of the information and documents that I have considered in reaching my decision. 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. Also, I have not considered any information that may have been provided to the Tribunal in the course of its mediation functions in relation to this or any other claimant application. I take this approach because matters disclosed in mediation are ‘without prejudice’ (see s. 136A of the Act). Further, mediation is private as between the parties and is also generally confidential (see also ss. 136E and 136F).

Procedural fairness steps As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness, which seek to ensure that decisions are made in a fair, just and unbiased way In my view, the State of South Australia (the state government) is a person to whom procedural fairness is owed if it appears that the application may be accepted for registration—see Western Australia v Native Title Registrar and Belotti (1999) 95 FCR 93; [1999] FCA 1591 (WA v Registrar) at [29], [31] to [38]. The state government’s right to procedural fairness is also supported by provisions of the Act, particularly s. 190A(3)(c), which requires the Registrar to have regard to information supplied by the state/territory government to the extent it is reasonably practicable to do so. On 8 November 2012, the state government was informed of the proposed registration decision timeframe. The state government did not make any submissions or comment in relation to the application. The additional material submitted by the applicant was not provided to the state government, as it was not, in my view, owed procedural fairness given that I would not accept the claim for registration.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 4 Decided: 22 February 2013 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. 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. 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? 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. I now turn 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) The application must be made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group. The application contains all details and other information required by s. 61(1). The nature of the task at s. 190C(2) is limited to a consideration of whether the application sets out the native title claim group in the terms required by s. 61(1) and as such, the task does not require me to look beyond the contents of the application itself. In assessing the Adnyamathanha

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 5 Decided: 22 February 2013 People #5 application and whether it contains the details and information required by s. 61(1), I am not entitled to undertake a merit assessment to determine if I am satisfied whether the native title claim group described in the application before me is the correct native title claim group. That said, in seeking to verify that an application contains all the details and information required by ss. 61 and 62, I do ensure that a claim ‘on its face, is brought on behalf of all members of the native title claim group’ as that term is defined in s. 61(1)—Doepel at [35] to [37], [39] and [47]. Part A of the application contains the information regarding persons authorised to make this application, listing the names of the applicants, and providing details regarding their authorisation by the native title claim group. Schedule A of the application contains a description of the native title claim group referring to Attachment A which lists the 12 ancestral lines from whom the claim group is said to be descended. There is nothing on the face of the application that leads me to conclude that the description of the native title claim group may exclude any persons from the group. The description does not otherwise indicate that this may be a subgroup of the native title claim group.

Name and address for service: s. 61(3) The application must state the name and address for service of the person who is, or persons who are, the applicant. The application contains all details and other information required by s. 61(3). Part B of the application states on page 8 the name and address for service of the persons who are the applicant.

Native title claim group named/described: s. 61(4) The application must: (a) name the persons in the native title claim group, or (b) otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. The application contains all details and other information required by s. 61(4). Schedule A provides a description of the persons in the group which includes a list at Attachment A of the apical ancestors referred to in the description.

Affidavits in prescribed form: s. 62(1)(a) The application must be accompanied by an affidavit sworn by the applicant that: (i) the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and (ii) the applicant believes that none of the area covered by the application is also covered by an approved determination of native title, and (iii) the applicant believes all of the statements made in the application are true, and (iv) the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and (v) setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it. The application is accompanied by the affidavit required by s. 62(1)(a).

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 6 Decided: 22 February 2013 The application is accompanied by affidavits from each of the six persons who comprise the applicant. The affidavits are signed by each deponent and witnessed and make all the statements required of this section.

Application contains details required by s. 62(2): s. 62(1)(b) The application must contain the details specified in s. 62(2). The application contains all details and other information required by s. 62(1)(b). 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) The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application. The application contains all details and other information required by s. 62(2)(a). Schedule B refers to Attachments B(1) and B(2) to the application which contain, respectively, a description of the external boundaries of the area covered by the amended application and a description of those areas not covered by the application.

Map of external boundaries of the area: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i). The application contains all details and other information required by s. 62(2)(b). Schedule C refers to Attachment C being a map showing the boundary of the area covered by the application.

Searches: s. 62(2)(c) The application must contain the details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application. The application contains all details and other information required by s. 62(2)(c). Schedule D states that the applicant has not undertaken any searches to determine the existence of non-native title interests in the area covered by the application. It also states that on the basis of some material obtained pertaining to ‘Lake Torrens national park and pastoral leases in relation to Andamooka Island’, the applicant acknowledges partial extinguishment of native title in relation to the claim area.

Description of native title rights and interests: s. 62(2)(d) The application must contain a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 7 Decided: 22 February 2013 interests are all native title rights and interests that may exist, or that have not been extinguished, at law. The application contains all details and other information required by. 62(2)(d). A description of the native title rights and interests claimed in relation to the area covered by the application is contained in Attachment E. This description (included as an excerpt within my reasoning at s. 190B(4)) consists of more than a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that may not have been extinguished, at law.

Description of factual basis: s. 62(2)(e) The application must contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area, and (ii) there exist traditional laws and customs that give rise to the claimed native title, and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. The application contains all details and other information required by s. 62(2)(e). Schedule F refers to Attachment F which is a brief report by an anthropologist for the Adnyamathanha People and forms the general description of the factual basis for the claim made in the application.

Activities: s. 62(2)(f) If the native title claim group currently carries out any activities in relation to the area claimed, the application must contain details of those activities. The application contains all details and other information required by s. 62(2)(f). Schedule G lists the activities the claim group currently carries out in relation to the area covered by the application.

Other applications: s. 62(2)(g) The application must contain details of any other applications to the High Court, Federal Court or a recognised state/territory body of which the applicant is aware, that have been made in relation to the whole or part of the area covered by the application and that seek a determination of native title or of compensation in relation to native title. The application contains all details and other information required by s. 62(2)(g). Schedule H states that the Kokatha Uwankara Native Title Claim has been made in relation to the whole or part of the area covered the Adnyamathanha People #5 application.

Section 24MD(6B)(c) notices: s. 62(2)(ga) The application must contain details of any notification under s. 24MD(6B)(c) of which the applicant is aware, that have been given and that relate to the whole or part of the area covered by the application. The application contains all details and other information required by s. 62(2)(ga).

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 8 Decided: 22 February 2013 Schedule HA states that the applicant is not aware of any such notices.

Section 29 notices: s. 62(2)(h) The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application. The application contains all details and other information required by s. 62(2)(h). Schedule I refers to a ‘relevant notice’ in relation to EL4296 of which it is aware. It states that the applicant is otherwise not aware of any notices having been issued in the last three years. I note that the notice in relation to EL4296 is not a current notice as it was notified in 2009. 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. The application does not satisfy the condition of s. 190C(3). The requirement that the Registrar be satisfied in the terms set out in s. 190C(3) is only triggered if all of the conditions found in ss. 190C(3)(a), (b) and (c) are satisfied—see Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC) at [9]. Section 190C(3) relates to ensuring there are no common native title claim group members between the application currently being considered for registration (‘the current application’) and any overlapping ‘previous application’. The Adnyamathanha People #5 application (the current application) was made when it was originally filed in the Court on 8 November 2012—see Strickland FC—at [44] and [45]. Therefore, any overlapping previous applications would need to have been on the Register on this date for it to become necessary to consider whether there are any common claimants in any previous overlapping applications and the current application. The Tribunal’s geospatial assessment and overlap analysis of 19 November 2012 (the geospatial report) identifies one native title determination application wholly overlaps the current application: SC2009/001—Kokatha Uwankara Native Title Claim—SAD90/2009 (Kokatha Uwankara application). At the time of my decision, the entire area covered by current application is overlapped by the registered Kokatha Uwankara application, made on 18 June 2009.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 9 Decided: 22 February 2013 The Kokatha Uwankara application was entered on the Register of Native Title Claims on 21 August 2009 as result of consideration under s. 190A and has not since been removed. It is therefore a ‘previous’ application in the sense of the conditions set out in the subparagraphs (a) to (c) of s. 190C(3). As such the Registrar is required to be satisfied that no person included in the Adnyamathanha #5 native title claim group was a member of the previous Kokatha Uwankara native title claim group. Schedule H of the current application states that the Kokatha Uwankara application is one that seeks a determination of native title in relation to all or part of the area covered by the current application. Schedule O provides details of the membership that the Adnyamathanha #5 native title claim group has in common with the Kokatha Uwankara native title claim group. The application therefore clearly acknowledges the overlap in the areas covered by the two applications and that there is common membership between the two native title claim groups. I have also made a comparison between the descriptions of the two groups and it would appear that there are claimants common to both groups. Therefore the application does not satisfy the condition at 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.

Section 251B provides that for the purposes of this Act, all the persons in a native title claim group authorise a person or persons to make a native title determination application . . . and to deal with matters arising in relation to it, if: a) where there is a process of decision–making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group . . . authorise the person or persons to make the application and to deal with the matters in accordance with that process; or b) where there is no such process—the persons in the native title claim group . . . authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision–making agreed to and adopted, by the persons in the native title claim group . . . in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. Under s. 190C(5), if the application has not been certified as mentioned in s. 190C 4(a), the Registrar cannot be satisfied that the condition in s. 190C(4) has been satisfied unless the application: (a) includes a statement to the effect that the requirement in s. 190C(4)(b) above has been met, and

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 10 Decided: 22 February 2013 (b) briefly sets out the grounds on which the Registrar should consider that the requirement in s. 190C(4)(b) above has been met For the reasons set out below, I am satisfied that the requirements set out in s. 190C(4)(b) are met. 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. As the application is not certified pursuant to s. 190C(4)(a), it is necessary to consider if the application meets the condition in s. 190C(4)(b): that is, the applicant is a member of the native title claim group and is authorised by all the other persons in the claim group to make the application and deal with matters arising in relation to it. It is also necessary to consider the requirements as set out in s. 190C(5), the terms of which are set out above. In Doepel, Mansfield J discusses the interaction between s. 190C(4)(b) and s. 190C(5) and how the Registrar is to be satisfied as to these conditions of the registration test: 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. Section 190C(5) then imposes further specific requirements before the Registrar can attain the necessary satisfaction for the purposes of s. 190C(4)(b). The interactions of s. 190C(4)(b) and s. 190C(5) may inform how the Registrar is to be satisfied of the condition imposed by s. 190C(4)(b), but clearly it involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given—at [78]. Even if the requirements of s. 190C(5) are met by the terms of the application, it is still necessary for me to consider whether I am satisfied that the applicant is authorised pursuant to s. 190C(4)(b), noting that I am not limited to what is in the application on the issue in my consideration at that condition. Information considered In my consideration of the authorisation of the applicant to make the application and to deal with matters arising in relation to it, I have had regard to the following information:  Attachment R: o setting out the resolutions reached at the meeting of 24 March 2012; o report of Adnyamathanha Lake Torrens and Andamooka Island Native Title Claim Authorisation Meeting – 24 March 2012, [name deleted]; o list of attendees/participants at the authorisation meeting; and  Additional material provided by the applicant on 7 January 2013: o Letter of 7 January 2013; o Schedule 3—Notice of the Annual General Meeting and Special General Meeting of the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC ("ATLA") and Meeting of the Adnyamathanha Native Title Holders; o Schedule 4—Mailing list of Notice of the Annual General Meeting and Special General Meeting of the ATLA and Meeting of the Adnyamathanha Native Title Holders; o Schedule 5—Advertising proofs for the Advertiser and Transcontinental publications;

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 11 Decided: 22 February 2013 o Schedule 6—Rules of ATLA; o Schedule 7—NNTT Registration Test Decision for Adnyamathanha No.3. Four resolutions reached at the 24 March 2012 meeting are set out in Attachment R. These are supported by the report of Bob Ellis which provides greater detail as to how these and other resolutions were moved and carried by attendees at the meeting. These resolutions are as follows: RESOLUTION 1 Those present at the meeting agree that the Adnyamathanha People and the Adnyamathanha Traditional Lands Association are adequately represented at this meeting. This meeting can make decisions about filling [sic] of a new native title claim. RESOLUTION 2 Those present at the meeting acknowledge that there is no process of decision making, under traditional law and custom that must be complied with by the Adnyamathanha People to authorize the making of this new native title claim. This meeting agrees to a decision making process by majority decision, which is consistent with previous authorization meetings of Adnyamathanha native title claims. RESOLUTION 3 The persons at this meeting agree that the Adnyamathanha No. 5 claim should be filed on behalf of the Adnyamathanha People over the Lake Torrens and Andamooka Island area, shown in the notice of the meeting and maps present at the meeting. RESOLUTION 4 That, through the Adnyamathanha Traditional Lands Association, the Adnyamathanha People agree to the lodgement of a native title claim over Lake Torrens and Andamooka Island and authorise: Angelina Stuart, Tony Clark, Mark McKenzie Snr, Michael Anderson, Beverly Patterson, Deidre McKenzie to make the native title application and execute all documents as applicant on behalf of the Adnyamathanha People and deal with matters arising in relation to it on their behalf, and the named applicant shall act in accordance with instructions from ATLA on behalf of the claim group in relation to all matters concerning the claim. The requirements of s. 190C(5) To meet the requirements of s. 190C(5)(a), the application must contain a statement to the effect that the requirement set out in paragraph (4)(b) has been met. My consideration is confined to information contained in the application and, in my view Attachment R and the s. 62(1)(a) affidavits that accompany the application provide the relevant information. Attachment R makes the statement in the opening paragraph and Bob Ellis makes the statement at the close of his report that he is ‘satisfied that all the proposed named applicants identified in motion 7 are members of the Adnyamathanha people’. The six persons who comprise the applicant have each made an affidavit pursuant to s. 62(1)(a) attesting to being authorised: ... by the native title claim group to make this application to deal with matters arising in relation to it in accordance with the process agreed to and adopted by the native title claim group at a meeting of the native title claim group held at the Hawker town hall at Hawker on the Twenty–fourth day of March 2012. The process was based on a majority vote.—at (e). Motion 7, set out in the report, states that the applicants are authorised ‘to make the native title application and execute all documents as applicants on behalf of the Adnyamathanha people and deal with matters arising in relation to it on their behalf...’.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 12 Decided: 22 February 2013 The information contained in Attachment R and the s. 62(1)(a) affidavits, in my view, sets out the grounds on which the Registrar should consider that the requirement at s. 190(4(b) has been met. I am therefore satisfied that the application meets the requirements of s. 190C(5). Adnyamathanha Traditional Lands Association (ATLA) and the native title claim group All of the authorisation material provided by the applicant refers to an ‘interrelationship’ between ATLA and the native title claim group. Attachment R states the following: ... the Adnyamathanha People/claim group has for the purpose (and other purpose relating to native title matters) agreed to and adopted a process of decision-making within a corporate structure. Within this structure decisions as to authorisation of claims are made by the Adnyamathanha People/claim group through the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC (“ATLA”) in general meeting. It is central to my being satisfied as to the requirements of s. 190C(4)(b) that it is the persons in the native title claim group that have authorised the applicant to make and deal with the Adnyamathanha #5 application. To this end, it is my view that the identity of the persons in the native title claim group who authorised should be apparent. My understanding from the information in Attachment R is the Adnyamathanha native title claim group makes its decisions through the structure of ATLA. The applicant provided me with a copy of the rules of ATLA (Schedule 6) and this document elucidates the process and context of decision-making employed by the Adnyamathanha claim group.  The Preamble to the ATLA rules states that since its incorporation, ATLA has managed the Adnyamathanha No.1 and No.2 claims; is the prescribed body corporate for the ‘Stage 1’ area determined in March 2009; continues to manage the No.1 claim to the extent that it was not finalised by the 2009 consent determination;  The ATLA rules annex the 2009 consent determination and rely on a description of the Adnyamathanha native title holding group as determined in 2009;  The description of the Adnyamathanha native title holding group is the same as that used to describe the claim group for this application; In my view, it is reasonable for me to conclude that the common law Adnyamathanha native title holders are also the persons captured by the description for the native title claim group. How the native title claim group was notified and informed of the authorisation meetings Accepting that the Adnyamathanha native title claim group is synonymous with the Adnyamathanha native title holding group, the next issue then for the purposes of the authorisation condition, is whether all of the persons in the native title claim group had an opportunity to fully participate in the decision-making process. If the notice given in relation to authorising an applicant to make and deal with an Adnyamathanha native title determination application alerted both members of ATLA and the native title holders, this in my view, would be sufficient to have provided a reasonable opportunity for persons not members of the corporation to attend and participate. The process to authorise the applicant to make and deal with the application occurred at a meeting held in Hawker on 24 March 2012. The meeting was publically notified in newspapers, The Advertiser on 25 February 2012 and The Transcontinental on 29 February 2012.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 13 Decided: 22 February 2013 Correspondence was forwarded by the legal firm representing the applicant in this claim to 26 family groups, community associations and other such organisations (the Core Group) on 23 February 2012 (provided at Schedule 4 of the additional material). Copies of the notice for the Annual General Meeting and Special General Meeting of ATLA and native title holders were included with the request that they be placed on community noticeboards. A contact at South Australian Native Title Services (the relevant representative body) was included in the notice along with details in relation to assistance available to attend the meeting. In accordance with ATLA corporation rules, at least 21 days prior notice of the meeting was given—r.6.5. The notice for the meeting provides, amongst some other details, the following information relevant this condition:  it is headed by ‘Annual General Meeting and Special General Meeting Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTB (“ATLA”) and Meeting of Adnyamathanha Native Title Holders’;  the purpose of the meeting, including to authorise the making of an Adnyamathanha Native Title Claim #5 over the area of Lake Torrens, and this is identified in a map; and  the agenda for the special general meeting of ATLA and the Adnyamathanha Native Title Holders, including an item to consider and if appropriate to authorise a claim over Lake Torrens. Having regard to the above information, I am of the view that the notice included sufficient information and detail to alert the relevant persons and to inform them of what was intended to transpire at the scheduled meeting. I am satisfied that the 24 March 2012 meeting was sufficiently notified to allow every reasonable opportunity for members of the Adnyamathanha native title claim group to attend and participate in decisions about the proposed application, and to authorise an applicant to make and deal with that application. How the meeting was attended and conducted The particular meeting that dealt with the matter of a proposed claim over Lake Torrens took place during a suspension of the ATLA AGM and was identified in the agenda as ‘being a meeting of the Adnyamathanha Native Title holders and applicants’—Attachment R and Schedule 3 of the additional information. The report by Bob Ellis states the following in relation the conduct of the meeting:  he has been associated with Adnyamathanha community since 1969 and is known by and knows the majority of community members;  he was present at all times throughout the meeting and counted and scrutineered the voting;  the vice-chairman of ATLA chaired the special general meeting at which the Adnyamathanha #5 claim was considered with the legal representative for the applicants preparing a series of resolutions in relation to authorising the applicant;  each of the resolutions, summarised in Attachment R (quoted above) are set out with the details of the majority vote which carried them;

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 14 Decided: 22 February 2013  a list of attendees/participants is attached from which is appears 67 people were in attendance. Having regard to the information before me, it is apparent that there was adequate representation of the native title claim group to make binding decisions; that each of the relevant resolutions were considered and discussed before being passed unanimously with no dissent recorded. Decision-making process to authorise The ATLA corporation rules set out the process of voting at r.6.10 that is otherwise a general description of the decision-making process employed by the corporation. Attachment R, as quoted earlier above, states that Adnyamathanha people have agreed to and adopted a process of decision-making within a corporate structure. My understanding, based on the largely consistent information before me, is that decisions in relation to authorising persons to comprise the applicant to make and deal with the Adnyamathanha #5 application were made following a process whereby:  resolutions were put forward to the group for discussion;  voting occurred by probably a show of hands, or possibly by a poll conducted by the chair; and  they were decided upon by a majority vote of participants. It is clear to me that, in accordance with the provisions of s. 251(b), participants resolved that there was no traditional decision-making process that must be complied with in relation to native title matters and that the group agreed to follow a process consistent with previous authorisation meetings. The decisions made at the authorisation meeting as a result of this process included those previously outlined. Conclusion The Court has considered in various instances what may be required to satisfy the Registrar that an applicant has been authorised by all the persons in the native title claim group, in accordance with s. 251B(b). It is well settled in law, that the word ‘all’ in the context of authorisation pursuant to s. 251B, has ‘a more limited meaning than it might otherwise have.’ In Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 (Lawson), Stone J held in relation to s. 251B(b) that it is not necessary for each and every member of the native title claim group to authorise the making of an application, but rather ‘[i]t is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process’—Lawson at [25]. I have no information before me contesting the representation of the native title claim group at the authorisation meeting held on 24 March 2012 or the extending of every reasonable opportunity to the persons in the native title claim group to attend and participate in the processes of authorisation. Stone J in Lawson advocated that ‘a practical approach’ is best adopted in relation to such questions—at [28]. One might wish to have more precise information in relation to the proportion of claim group members who are not ATLA members and possibly were not captured in the net caste as a result of the notification process. However, in my view it is reasonable to infer that most of the persons in the native title claim group were afforded the opportunity to attend the meeting and

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 15 Decided: 22 February 2013 participate in the authorisation process simply because they are Adnyamathanha native title holders. In this case, where there is sufficient information about the authorisation of the applicant, it is my view that it is not appropriate for me to take an ‘overly technical or pedantic’ approach. I can be satisfied because the process to authorise the persons comprising the applicant is said to have been consistent with authorisation in relation to other Adnyamathanha matters and is supported by the fact that ATLA has existed since its incorporation in 2001 and is the RNTBC and primary membership organisation for the Adnyamathanha People. I am therefore satisfied that all reasonable steps have been taken for all of the persons of the native title claim group to be provided an opportunity to participate in the decision-making process and I am satisfied that all the material before me demonstrates that the applicant is duly authorised in accordance with s. 251B(b) to make this application and to deal with all matters arising in relation to it.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 16 Decided: 22 February 2013 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. The application satisfies the condition of s. 190B(2). In assessing the current application against s. 190B(2), I am required to be satisfied that the information provided by the applicant for the purposes of ss. 62(2)(a) and 62(2)(b) is sufficient for the particular land and waters, over which native title rights and interests are claimed, to be identified with reasonable certainty. In reaching the required level of satisfaction, it is to the terms of the application itself that I am to direct my attention—Doepel at [16] and [122]. Description of the area covered by the application Schedule B refers to Attachment B(1) and B(2). Attachment B(1) is titled “Adnyamathanha #5 Native Title Determination Application – External Boundary Description” prepared by Geospatial Services, National Native Title Tribunal, dated 04 April 2012. It describes the application area by metes and bounds referencing native title determination and native title determination application boundaries, lot on plans and coordinate points referencing the Geocentric Datum of Australia 1994 (GDA94) shown to 6 decimal places. Attachment B(1) states that the area covered by the application specifically excludes the land and waters subject to five native title determination applications and one determination of native title. Attachment B(2) describes areas that are not covered by the application and lists general exclusions. Map of the area covered by the application Schedule C refers to Attachment C which is a monochrome copy of an A3 colour map titled “Native Title Determination Application – Adnyamathanha #5 Native Title Claim” prepared by Geospatial Services, NNTT on 12 April 2012 and includes:  the application area depicted by a bold solid line;  land tenure with pastoral leases labelled;  boundaries of various Native Title Determination Applications and Native Title Determinations are shown and labelled;  a monochrome digital topographic background;  selected townships are shown and labelled;  a locality diagram, scalebar, northpoint and coordinate grid; and  notes relating to the source, currency and datum of data used to prepare the map.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 17 Decided: 22 February 2013 Consideration Overall, the information in relation to the external boundaries of the area covered by the application allows me to identify the location of those external boundaries on the surface of the earth. In respect of those areas not covered by the application and described by general exclusion statements, a generic or class formula to describe the internal boundaries of an application is acceptable if the applicant has only a limited state of knowledge about any particular areas that would so fall within the generic description provided— see Daniels & Ors v State of Western Australia [1999] FCA 686—at [32]. For the purposes of meeting the requirements of this section the general exclusion statements at Attachment B(2) are, in my view, sufficient to offer an objective mechanism by which to identify areas that would fall within the categories described. The geospatial report makes the assessment that the description and the map are consistent such that the area covered by the application is readily identifiable. I agree with that assessment. I am therefore satisfied that the external boundary is reasonably identifiable and, along with the general exclusion clauses that set the internal boundary, that it can be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. 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. The application satisfies the condition of s. 190B(3). Under this condition, I am required to be satisfied that one of either s. 190B(3)(a) or (b) has been met. The application does not name the persons in the native title claim group but contains a description, and it is therefore necessary for me to consider whether the application satisfies the requirements of s. 190B(3)(b). I note the comments of Mansfield J in Doepel at [51] and [37], respectively, that the focus of s. 190B(3)(b) is:  whether the application enables the reliable identification of persons in the native title claim group; and  not on ‘the correctness of the description . . . but upon its adequacy so that the members[sic] of any particular person in the identified native title claim group can be ascertained’. Carr J in State of Western Australia v Native Title Registrar (1999) 95 FCR 93 (Western Australia v Native Title Registrar) was of the view that ‘it may be necessary, on occasions, to engage in some

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 18 Decided: 22 February 2013 factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently’—at [67]. Schedule A of the application contains the following description of the persons in the native title claim group: The native title claim group comprises those Aboriginal people who: 1) are the descendants (whether biologically or by adoption) of the apical ancestors in Attachment A; 2) identify as Adnyamathanha; and 3) are recognised by other Adnyamathanha native title claimants under the relevant Adnyamathanha traditional laws and customs as having maintained an affiliation with, and continuing to hold native title rights and interests in, the claim area. Attachment A: Apical Ancestors 1) Mt Serle Bob; 2) Polly, wife of Mt Serle Bob; 3) Quartpot Tommy; 4) Mt Serle Bob's sister, wife of Quartpot Tommy; 5) Willy Austin Snr; 6) Nicholas Demell; 7) Emily McKenzie, wife of Nicholas Demell; 8) Sydney Ryan; 9) Mary, wife of Sydney Ryan; 10) The siblings of Angepena Billy or Mary; 11) Fanny, wife of Angepena Billy; 12) The siblings Sara Johnson, Matilda Johnson, Fred Johnson, Natalie Johnson, Jessie Johnson or Sydney Jackson. The description of the native title claim group is a descent model description based on 12 ancestral lines and includes what appear to be certain rules or principles which operate under Adnyamathanha traditional laws and customs to regulate identification and acceptance of members of the native title claim group. I am of the view that the native title claim group is described sufficiently clearly to enable identification of any particular person in that group and am therefore satisfied that the native title claim group has been sufficiently described. 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. The application satisfies the condition of s. 190B(4).

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 19 Decided: 22 February 2013 Section 190B(4) requires the Registrar to be satisfied that the description of the claimed native title rights and interests contained in the application is sufficient to allow the rights and interests to be identified—Doepel at [92]. In Doepel, Mansfield J refers to the Registrar’s consideration: The Registrar referred to s. 223(1) and to the decision in Ward. He recognised that some claimed rights and interests may not be native title rights and interests as defined. He identified the test of identifiability as being whether the claimed native title rights and interests are understandable and have meaning. There is no criticism of him in that regard—at [99]. On this basis, for a description to be sufficient to allow the claimed native title rights and interests to be readily identified, it must describe what is claimed in a clear and easily understood manner. Schedule E of the application refers to Attachment E which contains the description of native title rights and interests claimed in relation to the application area, as required by s. 62(2)(d): The native title rights and interests claimed comprise as follows: 1) The nature and extent of the native title rights and interests held by all members of the native title claim group in relation to the Claim Area are rights to use, stay on and enjoy the land and waters of the Claim Area being: a) The right to access and move about the Claim Area; b) The right to hunt on the Claim Area where appropriate, and to gather and use the natural resources of the Claim Area such as food, plants, timber, resin, ochre and soil, where appropriate; c) The right to cook and to light fires for cooking or as part of traversing the Claim Area; d) The right to use the natural water resources of the Claim Area; e) The right to distribute, trade and exchange the natural resources of the Claim Area: f) The right to conduct ceremonies and hold meetings on the Claim Area; g) The right to engage and participate in cultural activities on the Claim Area including those relating to births and deaths; h) The right to teach on the Claim Area the physical and spiritual attributes of Lake Torrens and of locations and sites within the Claim Area; i) The right to visit, maintain and preserve sites and places of cultural or spiritual significance to the Adnyamathanha People within the Claim Area including the lake surface, islands and mound springs; j) The right to speak for and make decisions in relation to the Claim Area about the use and enjoyment of the Claim Area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Adnyamathanha People; k) The right to be accompanied onto the Claim Area by those people who, though not Adnyamathanha People, are: (i) spouses of an Adnyamathanha person; (ii) or people required by traditional law and custom for the performance of ceremonies or cultural activities involving Lake Torrens or on the Claim Area; (iii) or people who have rights in relation to Lake Torrens or the Claim Area according to the traditional laws and customs acknowledged by the Adnyamathanha People; (iv) or people invited by Adnyamathanha People to assist in, observe, or record traditional activities on the Claim Area. 2) The native title rights and interests claimed are for personal, domestic and non- commercial communal use. 3) The native title rights and interests are subject to and exercisable in accordance with:

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 20 Decided: 22 February 2013 a) the traditional laws and customs of the native title claim group; b) the valid laws of the State and Commonwealth, including the common law.. In reading the rights and interests listed in Attachment E, together with and subject to the qualifications provided at Schedule B, I am of the view that the native title rights and interests claimed can be ‘properly understood’, and that there is ‘no inherent or explicit contradiction’ in the description which prevents me from reaching the level of satisfaction required by s. 190B(4)— Doepel at [123]. I am therefore satisfied that the description contained in the application is sufficient to allow the native title rights and interests to be readily identified and meet the requirements 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: (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 interests, and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. 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), as set out in my reasons below. I have considered each of the three assertions set out in the three paragraphs of s. 190B(5) in turn before reaching this decision. For the application to meet this merit condition, I must be satisfied that a sufficient factual basis is provided to support the assertion that the claimed native title rights and interests exist and to support the particularised assertions in paragraphs (a) to (c) of s. 190B(5). In Doepel (and this was approved by the Full Court in Gudjala FC at [82] to [85]), Mansfield J states that: Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the `factual basis on which it is asserted’ that the claimed native title rights and interests exist `is sufficient to support the assertion’. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts—at [17]. The test in s. 190A involves an administrative decision—it is not a trial or hearing of a determination of native title pursuant to s. 225, and therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is not the task of the

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 21 Decided: 22 February 2013 delegate to make findings about whether or not the claimed native title rights and interests exist. It is not the role of the delegate to reach definitive conclusions about complex anthropological issues pertaining to the applicant’s relationship with their country as that is a judicial enquiry. Information considered Schedule F refers to Attachment F which is a report setting out what appears to be an overview of anthropological research findings, some which relates to the Adnyamathanha People for the purposes of this application and relevant to the area it covers over Lake Torrens. Schedule G lists a number of activities in which members of the claim group are involved – visiting and camping, hunting and gathering on the claim area, maintaining and protecting the natural environment, speaking for the claim area and associated cultural heritage work. The applicant provided further material going to the factual basis supporting the claim group’s traditional laws and customs and this includes:  decision of the Federal Court of Australia in Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 (30 March 2009);  relevant pages of the Adnyamathanha Genealogy by Christine Davis and Pearl McKenzie;  witness statement of Mark McKenzie;  material from Starkey & Ors v the State of South Australia [2011] SASCFC 164  redacted Adnyamathanha report from the determination and relevant part of Adnyamathanha Form 1. Previous Adnyamathanha determination Land and waters adjacent and to the east of the claim area covered by this application are the subject of a consent determination recognising the existence of native title—Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 (Adnyamathanha No 1). Given the proximity of the Adnyamathanha People #5 claim area to the determined area, it is my view that the findings of the Court in Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126 are relevant to the way I consider the application for the purposes of s. 190B(5): …The evidence to which an administrative tribunal may have regard can include evidence that has been given in another proceeding, including a court proceeding, provided the evidence is relevant to an issue before the tribunal: In re A Solicitor [1993] QB 69 at 77. A tribunal may also accept as evidence the reasons for judgment given by a judge in other proceedings. But if the tribunal takes the approach that it should not disagree with findings made by the judge then the tribunal has fallen into error. The general rule is that a tribunal that is required to decide an issue will be in breach of that obligation if it merely adopts the decision of the judge on the same issue…I do not mean to imply that reasons for decision given by a judge are irrelevant to an administrative tribunal. First of all, those reasons may…be received into evidence. They must then be given some weight. Indeed, the judge’s findings may be treated as prime facie correct. On the other hand, if the judge’s findings are challenged, the tribunal must decide the matter for itself on the evidence before it: General Medical Council v Spackman [1943] AC 627—at [18] to [19]. In my view I may have regard to the findings by Mansfield J in Adnyamathanha No 1 because they are particularly relevant to my consideration of whether the factual basis in the Adnyamathanha

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 22 Decided: 22 February 2013 People #5 application sufficiently supports the assertion that the native title rights and interests claimed exist. This is for the following reasons: (i) the descriptions of the native title claim group for both the determination in Adnyamathanha No 1and the Adnyamathanha People #5 application are the same; (ii) the eastern shore of the Adnyamathanha People #5 claim area, comprised of the bed and banks of Lake Torrens, is contiguous with the determined area; (iii) the applicant has referred me to the consent determination in Adnyamathanha No 1—that the Adnyamathanha are determined native title holders in an area immediately adjacent to the claim area and accordingly rely on the same society and laws and customs as determined in Adnyamathanha No 1 (at [25] of 7 January 2012 correspondence); (iv) it is my view that the Adnyamathanha native title holding group is synonymous with the Adnyamathanha native title claim group for this application (refer to my reasons at s. 190C(4); and (v) the applicant has provided a redacted copy of a report (the Ellis Report) which led to the consent determination in Adnyamathanha No 1 upon which I am asked to rely (at [26] of 7 January 2012 correspondence). In his reasons for judgement in the consent determination in Adnyamathanha No 1, Mansfield J refers to the Court’s obligations under ss. 87 and 87A: [10] Both ss 87 and 87A require the period of notice under s 66 to have elapsed. It has clearly done so. Section 87 requires that a signed copy of the agreed orders has been filed with the Court. Section 87A requires that a copy of the agreed orders has been filed with the Court signed by all those persons specified in s 87A(1)(c). That is, in effect, the persons whose interests may be directly affected by the proposed determination over that part of the claim area. Section 87A(3) then requires the Registrar of the Court to give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court. In the event that any party notified pursuant to s 87A(3) objects to the proposed determination, s 87A(5) requires the Court to take into account any such objection in deciding whether to make the orders sought under s 87A. [11] I am satisfied of each of those requirements or pre-conditions to the making of the proposed orders. There has been no objection by any party notified under s 87A(3) to their being made. Particularly pertinent to my task here are the comments made by Mansfield J in relation to the evidence which supports the Court’s determination. I have set these out in full below. They précis simply and cogently the material I have read in both Schedule F of the application and the redacted report later provided to me by the applicant: [19] The evidence before the Court in support of the applications includes a Native Title Report from an anthropologist, the evidence taken during a preservation of evidence hearing, and witness statements. [20] The Native Title Report (the Ellis Report) was prepared by Bob Ellis, an anthropologist with thirty years of experience working with the Adnyamathanha people. The Ellis Report was accompanied by the Adnyamathanha Genealogy, a published work on Adnyamathanha families that is being relied on as establishing the relevant families

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 23 Decided: 22 February 2013 that make up the Adnyamathanha society. Mr Ellis also interviewed six claimants on a number of topics identified by the State as requiring clarification. [21] In October 2007 the Court conducted a preservation of evidence hearing at Hawker and at a number of sites around the Flinders Ranges. Two senior Adnyamathanha men, Ken McKenzie and Stuart Patterson, gave evidence over three sitting days. [22] Thirteen witness statements were gathered from the Adnyamathanha claimants to address outstanding issues following the Ellis Report and the preservation of evidence hearing. [23] All the material was assessed by the State’s expert anthropologist, Dr David Martin. Based on Dr Martin’s assessment, the State identified certain outstanding issues requiring further clarification which were addressed by way of the material in the witness statements. [24] In support of the applications for consent determinations of native title, the State of South Australia has filed extensive written submissions on behalf of the State and the claimants. Those submissions refer to the Ellis Report, the interviews, the transcript from the preservation of evidence hearing and the witness statements, which all speak of the Adnyamathanha people and their connection to the claim area. [25] The relevant native title claim group, the Adnyamathanha people, and its society, is clearly identified (and is a relevant society for the purposes of s 223 of the NT Act). The term “Adnyamathanha” refers to a much larger group than that term originally described, and the evidence shows that different researchers have identified different “tribes” or language groups within the claim area, some of which are well supported, the other more inferential or doubtful. Despite this, the interviews and witness statements substantiate contemporary custom of claimants to identify as Adnyamathanha whilst acknowledging they are also, for example, Kuyani, Pirlatapa, Wailpi or Yadliyawara. There are a number of other subgroups. The Ellis Report shows that the contemporary Adnyamathanha society is comprised of those traditionally closely related groups, and that the ethnographic records suggest those groups have a long history of inter-marriage, co-residence and joint ceremonial activities allowing them to be characterised as an appropriate traditional society for native title purposes (Ellis Report at [145]). [26] I am satisfied that the level of detail provided by the applicants to identify the native title claim group and its society satisfies the requirements of the NT Act. [27] The evidence also addresses the relationship between the claim group’s society and the society in the determination area at sovereignty. The earliest recorded ancestors for the contemporary Adnyamathanha society are traced back to the mid-19th century. The evidence shows that those ancestors were living and observing traditional laws and customs in the relevant areas at that time. It is easy to infer that ancestors of those persons occupied the proposed determination area at sovereignty, and that the current claim group is directly linked to them. [28] The evidence shows a substantially uninterrupted observance of traditional laws and customs since sovereignty, albeit not necessarily homogenous in the level of its observation, and notwithstanding varying levels of knowledge and enforcement amongst the Adnyamathanha people. One of the key features of the normative society is the division of the Adnyamathanha people into two matrilineal moieties, Matheri and Arraru. Its importance is recognised and observed by all the Adnyamathanha people

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 24 Decided: 22 February 2013 interviewed, including younger claimants. The moiety system retains its significance to the younger generation. The moieties traditionally governed many other aspects of Adnyamathanha life, including ceremonial practice, burial arrangement and decision making processes. The latter is evident through the composition of boards dealing with land issues such as the Vulkathunha Gammon Ranges National Park Co-Management Board, where equal numbers of Matheri and Arraru people are appointed to the board, and other boards representative of the Adnyamathanha people. [29] In addition, the continued use of the Adnyamathanha language amongst many of the Adnyamathanha people, including in social contexts where it is often the language of choice, and the encouragement to the younger generations to continue its vibrancy is a strong identifier of ongoing Adnyamathanha custom and identity. So too is the ongoing knowledge of muda (also mura) or Dreaming traditions. That was particular [sic] evident during the preservation evidence of Ken McKenzie, as well as in other statements and interviews. The Adnyamathanha people have been promoting and protecting their cultural heritage for many years, including establishing structures for the identification and protection of sites through the cultural and educational centre at Iga Warta near Nepabunna. [30] There are additionally, other laws and customs for which there is contemporary evidence including: • The traditional way to butcher and cook kangaroo; • Speaking with and respecting spirits in the land; • Age based hierarchy; • Physically maintaining and protecting sites of significance; and • Maintaining gender and status based restrictions in relation to Dreaming Law. [31] In my view, the material demonstrates the uninterrupted observance of many traditional laws and customs since sovereignty by the Adnyamathanha people, thereby defining their society, by actively promoting and protecting their cultural heritage for many years. [32] The evidence further demonstrates a connection to the determination area by the group’s traditional laws and customs. In particular, the key criteria by which the Adnyamathanha people assert rights and interests in a claim area is descent from an Adnyamathanha ancestor. It shows that the Adnyamathanha country is for all Adnyamathanha people, even though there are some areas where particular people should be consulted about particular parts of the claim area because of their special associations with it. Those associations derive from seniority, and in earlier times seniority associated with initiation ceremonies, and particular historical connections through ancestry and exposure to those areas. [33] The material before the Court also shows that the Adnyamathanha people are recognised by other Aboriginal people as controlling the enjoyment of rights and interests in the claim area. That is exposed by contacts from other Aboriginal people to Iga Warta and Nepabunna seeking permission to visit the area. [34] Further, the relationship between the laws and customs of the Adnyamathanha people and the rights and interests claimed by the applicants is demonstrated by the practising of all the rights and interests claimed by the Adnyamathanha people, both by those

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 25 Decided: 22 February 2013 who still live on the country and by those who make conscious efforts to return to the area and engage in traditional activities. While I do not ‘merely adopt’ the reasons for judgement, they are relevant to my consideration because they substantiate and express the Adnyamathanha people’s connection to country and the existence and content of the group’s traditional laws and customs. In pronouncing the determination, the Court was satisfied that: The material relied upon by the parties in support of the proposed consent determinations, in my view, adequately addresses the requirements of ss 223 and 225 of the NT Act and the appropriateness of making the proposed consent determinations. I accept their submission that the Ellis Report and the interviews and evidence support the recognition of native title rights and interests possessed by the native title claim group, as defined by s 223 and explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422—at [35]. I therefore consider the Adnyamathanha People #5 application in the wider context of the determination of Adnyamathanha #1. Reasons for s. 190B(5)(a) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(a). This subsection requires me to be satisfied that the factual material provided is sufficient to support the assertion that the native title claim group has, and its predecessors had, an association with the area of the application. Whilst it is not necessary for the factual basis to support an assertion that all members of the native title claim group have an association with the area all of the time, it is necessary to show that the claim group as a whole has an association with the area—Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala) at [51] and [52]. Information in Schedule F and the redacted report make the following assertions in relation to the claim area of Lake Torrens:  the area was not suitable for permanent or long term occupation, but was occasional and opportunistic with crossings between particular points—at [2], redacted report;  crossings were likely made for the purposes of the accessing drinkable water, knowledge of which was restricted to Adnyamathanha Adlya Wirri (“initiated men”)—at [2], redacted report;  maps prepared by Otto Siebert in 1898 identify the area including Lake Torrens as occupied by Kuyani and “Mardala (Keynjamarda)”, that is Adnyamathanha—at [6], Schedule F;  Dr Elkin published a map of the region in 1931 which showed the distribution of groups in this region based upon their kinship features. He attributed the area including Lake Torrens as Kwiani (Kuyani) and “Wailpi” (Walypi – another Adnyamathanha grouping)—at [10], Schedule F; and  at sovereignty the Adnyamathanha (and particularly their component group the Kuyani) had defined territorial rights which included Lake Torrens or parts of the lake which imposed rights and responsibilities in overseeing access to the lake—at [34], Schedule F;

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 26 Decided: 22 February 2013  unlike the lake surface, there is considerable evidence of occupation within the dune systems of the eastern shores and on the western side of the lake...—at [37], Schedule F. The anthropological contention is that Adnyamathanha People formed part of a comprehensive system of social organisation in the region in which the claim area lies. Specifically, the areas that cover Lake Torrens and the other playa lakes of the region (dry lakes in which shallow levels of water evaporate, leaving a layer of salt on the surface, usually covering a wide area) are significant to the Adnyamathanha and their neighbours. The groupings of societies in these areas are referred to in the literature before me as the ‘Lakes Groups’ and it is asserted that they were and are socially and culturally distinct from those groupings generally known as the Western Desert societies who occupied territory to the west and north-west of the region occupied by the ‘Lakes Groups’—at [1], Schedule F. The reports before me contend that the Lakes Group (of which the Adnyamathanha were a part) recognised and acknowledged the cultural and territorial significance of the playa lakes. The stories, traditions, customs and cultural practices evidence a ‘statement of cultural association and ‘ownership’ of the lakes by the Lakes Group’—at [42], Schedule F. The witness statement of [claimant—name removed], senior Adnyamathanha man, sets out the claim group’s contemporary association with area of Lake Torrens and its importance to the Adnyamathanha people:  there exists secret stories regarding the making of Lake Torrens, which are preserved by senior Adnyamathanha men—it is their "Yarta" (country/land) and the stories associated with the lake mean that Adnyamathanha have to make decisions for Lake Torrens, in order to comply with traditional laws;  all Adnyamathanha people know the importance of Lake Torrens, with certain families having a strong connection to the area, and others living close to the shores of the lake;  people are involved in the protection of Lake Torrens as a heritage site for Adnyamathanha People;  there are several sites on Lake Torrens of such significance that only appropriate people know of them. Water from springs on the lake bed was used in the past by Adnyamathanha people travelling on traditional business;  the language of the place names of Lake Torrens, is all in "yura ngawarla", Adnyamathanha and Kuyani, that is, Adnya-Kuyani, language. A number of the playa lakes in the region have been the subject of native title determinations and whilst no one lives on the lakes, they are recognised as holding strong spiritual significance for Indigenous people: It is appropriate that the stories of Lake Torrens and the songs be protected and preserved, by appropriate Adnyamathanha people. Certain activities are acceptable but other activities can go against our "Mura", which affects our "Yarta", which in turn can damage ourselves. Our community can only function when it ensures that its "Yarta" is being managed in the traditional way. In particular, myself and my family have obligations to preserve Lake Torrens "Yarta" under Adnyamathanha laws and customs. This is not to say that other Adnyamathanha do not also

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 27 Decided: 22 February 2013 have equally obligations, I am just making it clear that this is "Yarta" that I am responsible for—at [14] to [15]. There is, in my view, a factual basis that goes to showing the history of association that those members of the claim group have, and that their predecessors had, with the application area—see Gudjala 2007 at [51]. It is supported in part by the material provided in relation to the application before me, but is also substantiated by the findings of the Court when it determined the existence of the Adnyamathanha People’s native title in the adjacent area. To this extent, the material before me supports the existence of a link between the current claim group and its predecessors’ and their association with the application area, being Lake Torrens. The information is sufficient to support the claim group’s asserted association with the land and waters of the application area and this appears to have its origins in the preceding generations’ association with the area. I am therefore satisfied that the factual basis is sufficient to support the assertion that the native title claim group has and its predecessors had an association with the area. Reasons for s. 190B(5)(b) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(b). This subsection requires that I be satisfied that the material before me provides a sufficient factual basis for the assertion that there exist traditional laws acknowledged and customs observed by the native title claim group and that these give rise to the native title rights and interests it claims. Justice Dowsett again considered the requirements of s. 190B(5) when he addressed the adequacy of the factual basis underlying an applicant’s claim in Gudjala 2009. He makes statements about the assessment of the adequacy of a general description of the factual basis of the claim at [29], which in summary mean that:  assertions should not merely restate the claim; and  there must be at least an outline of the facts of the case. Relevant to assessing the application’s assertions in relation to s. 190B(5)(b), in Dowsett J’s view, there is a requirement for factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters—at [29]. Therefore, the factual basis for the claim is required to address whether or not the relevant traditional laws and customs that give rise to the claim to native title rights and interests have their origin in a pre-sovereignty, normative system with a substantially continuous existence and vitality since sovereignty. In Gudjala 2007, which was not criticised by the Full Court in Gudjala FC—at [71], [72] and [96], Dowsett J considered that the factual basis materials for this assertion must demonstrate:  the laws and customs currently observed by the claim group have their source in a pre– sovereignty society and have been observed since that time by a continuing society—at [63];  the identification of a society of people living according to a system of identifiable laws and customs, having a normative content, which existed at the time of sovereignty—at [65] and see also at [66]; and

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 28 Decided: 22 February 2013  the link between the claim group described in the application and the area covered by the application, ‘identifying some link between the apical ancestors and any society existing at sovereignty’—at [66]. As referred to above, Schedule F and the redacted report before me contain much of the same evidence relied on by the Court for the purposes of the consent determination in Adnyamathanha #1. It is contended that the ‘present day claimant group represents a consolidation, post- sovereignty, of several, named language and dialectal groups which were in occupation of the ranges at the time of European settlement, into one contemporary “Adnyamathanha” society—at [49], redacted report. The Court was satisfied (see the extract from determination above) that there exists a ‘relationship between the claim group’s society and the society in the determination area at sovereignty’. The evidence showed that contemporary Adnyamathanha society traces its ancestry back to the mid- 19th century to those living and observing traditional laws and customs in the relevant areas at that time. The Court was able to infer that the ‘ancestors of those persons occupied the proposed determination area at sovereignty, and that the current claim group is directly linked to them’—at [27]. The reports before me document the amalgamation of the ‘Adnyamathanha component groupings’ to form the contemporary society, a decision made by the initiated men of those groups—at [4] to [5], Schedule F. This was possible because the Adnyamathanha and their “Lakes Groups” neighbours shared a common social organisation. The reports detail that this shared system was ‘based on named, matrilineal, exogamous moieties; a shared ritual tradition, based upon the Vardnapa (“Circumcision”) and Wilyaru (‘Back-Scarring”) initiation ceremonies and song and Mura (“history stories”) narrative compilations’—at [1], Schedule F. Schedule F refers to information regarding the moiety affiliations, kinship terminologies and Adnyamathanha language that are still retained by the group today. Matrilineal moieties (‘totemic clans’ shared by groups of the area at sovereignty) are delineated with the names of particular animals, each associated with a particular estate/country (‘yarta’) and by extension to membership of a language group—at [19] to [23]. This is illustrated by [claimant—name removed] who attests in his affidavit to the spiritual and cultural significance of the ‘salt lakes’ (at [10]); the stories and songs associated with Lake Torrens (at [14]); and the obligations to protect and preserve Lake Torrens under Adnyamathanha traditional law and custom (at [15]). In particular, he is aware of secret stories in relation to the formation of the salt lakes, which are part of Adnyamathanha ‘sacred law’ (‘Mura’) and connect the group to yarta and give the group the obligation to make decisions about Lake Torrens. The redacted report provides anthropological detail in relation to the content of Adnyamathanha traditional law and custom which is précised in the Court’s determination, extracted above. There is sufficient factual basis before me to support that the Adnyamathanha People have an association with the area of Lake Torrens. In my view, based on the proximity of the determined area, there is sufficient basis to infer that Adnyamathanha traditional laws and customs extend to cover the area of the lake and its shores. The material before me provides a sufficient factual basis for me to be satisfied that the area covered by this Adnyamathanha #5 application falls within the wider context of Adnyamathanha country.

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 29 Decided: 22 February 2013 I am therefore satisfied that the information before me is sufficient to support that there exists traditional laws acknowledged and customs observed by the Adnyamathanha native title claim group that give rise to the claim to native title rights and interests. Reasons for s. 190B(5)(c) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(c). This subsection requires that I be satisfied that there is sufficient factual basis to support the assertion that the native title claim group continues to hold native title in accordance with its traditional laws and customs. The details in Schedule F and the redacted report are assisted by the reasons for judgement provided by Mansfield J in Adnyamathanha #1 and as it is my view that the area covered by this Adnyamathanha #5 application falls within the wider context of Adnyamathanha country, I am satisfied that there is a factual basis to support the assertion that a Adnyamathanha society has continued to exist substantially uninterrupted since sovereignty—Yorta Yorta—at [87]. As referred to earlier in these reasons, Adnyamathanha society has retained its identity, culture and traditions through a formal, traditional amalgamation of groups of the region with evidence to suggest the component groupings of Kuyani ‘Mardala (Keynjamarda)’ most closely associated with the area of Lake Torrens. As attested to by [claimant—name removed], people continue to live proximate to the area and hold rights and responsibilities in relation to the lake, its islands and shores. Stories and traditions are known by the contemporary claim group, having been passed onto them by their predecessors. I am therefore satisfied that the factual basis supports the assertion that the native title claim group has continued to hold the native title in accordance with its traditional laws and customs. 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. The application satisfies the condition of s. 190B(6). Under s. 190B(6) I must be satisfied that at least one of the native title rights and interests claimed by the native title group can be established, prima facie. I refer to the comments made by Mansfield J in Doepel about the nature of the test at s. 190B(6):

 it is a prima facie test and ‘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’—Doepel at [135].  it involves some ‘measure’ and ‘weighing’ of the factual basis and imposes ‘a more onerous test to be applied to the individual rights and interests claimed’—Doepel at [126], [127] and [132]. As mentioned above in relation to the requirements of s. 190B(5), the registration test involves an administrative decision and is not a trial or hearing of a determination of native title pursuant to

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 30 Decided: 22 February 2013 s. 225. Therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is not my role to draw definitive conclusions from the material before me about whether or not the claimed native title rights and interests exist, only whether they are capable of being established prima facie. I note that, in my view, as set out above at s. 190B(5), the application provides a sufficient factual basis to support the assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group that give rise to the claimed native title rights and interests. The factual basis is found in the information in Schedule F and the redacted report, and this goes to demonstrating that the claimed rights and interests can be established, prima facie. This material illustrates and supports that the claimed rights and interests exist under the traditional laws and customs acknowledged and observed by the native title claim group. In my view, it is supported by the fact that the claim area is immediately adjacent to an area over which the Adnyamathanha People are determined native title holders. The rights and interests claimed in respect of the land and waters of the claim area, being Lake Torrens, are essentially a subset of those rights and interests held by Adnyamathanha People in relation to the area directly adjacent. They are framed in the same terms and are clearly specific to the land and waters of the claim area. The two determined rights not claimed in this application are the ‘right to live, to camp and to erect shelters’ and ‘the right to carry out and maintain burials of deceased native title holders and of their ancestors’, which presumably are not rights exercised in relation to the lake. I have examined the factual basis for the assertion that the claimed native title rights and interests exist against each individual right and interest claimed in the application and I am satisfied that, prima facie, they: 1. exist under traditional law and custom in relation to any of the land or waters under claim; 2. are native title rights and interests in relation to land or waters (see chapeau to s. 223(1)); and 3. are rights and interests that have not been extinguished over the whole of the application area. I also refer to the statement made by the Court in its determination, upon which I also rely: ...the relationship between the laws and customs of the Adnyamathanha people and the rights and interests claimed by the applicants is demonstrated by the practising of all the rights and interests claimed by the Adnyamathanha people, both by those who still live on the country and by those who make conscious efforts to return to the area and engage in traditional activities—at [34]. I am satisfied, having considered the information before me, that all the rights claimed in this application (quoted above in my reasons in relation to s. 190B(4)) can be established prima facie. Subsection 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group:

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 31 Decided: 22 February 2013 (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. The application satisfies the condition of s. 190B(7). Under s. 190B(7), I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. This condition ‘can be seen as requiring some measure of substantive (as distinct from procedural) quality control upon the application’—Gudjala FC at [84]. In Doepel, Mansfield J also considered the nature of the Registrar’s task at s. 190B(7): Section 190B(7) imposes a different task upon the Registrar. It does require the Registrar to be satisfied of a particular fact or particular facts. It therefore requires evidentiary material to be presented to the Registrar. The focus is, however, a confined one. It is not the same focus as that of the Court when it comes to hear and determine the application for determination of native title rights and interests. The focus is upon the relationship of at least one member of the native title claim group with some part of the claim area. It can be seen, as with s 190B(6), as requiring some measure of substantive (as distinct from procedural) quality control upon the application if it is to be accepted for registration—at [18]. The material before me refers to the significance of Lake Torrens in the cultural and traditional life of the claim group. While it has not ever been an area of permanent occupation, the lake, its shores and surrounding dune system has been accessed by generations of Adnyamathanha People and their neighbours. This access continues today. Although brief and not extensively detailed, the witness statement of [claimant—name removed] refers to certain families and those with authority who regularly access the lake. Additionally, the fact that a determination of native title exists in relation to land and waters that adjoin the area of this application, in my view, assists to satisfy me that there is currently and there has previously been traditional physical connection by members of the native title claim group with at least parts of the area covered by the application. 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:

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 32 Decided: 22 February 2013 (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. (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.

The application satisfies the condition of s. 190B(8). I explain this in the reasons that follow by looking 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. Reasons for s. 61A(1) 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. In my view the application does not offend the provisions of s. 61A(1). The geospatial report dated 19 November 2012 and a search that I made of the Tribunal’s geospatial databases on the day of my decision reveals that there are no approved determinations of native title over the application area. Reasons for s. 61A(2) 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. In my view the application does not offend the provisions of s. 61A(2). Attachment B(2) at paragraph 2 excludes from the application area any land or waters that is or has been covered by previous exclusive possession acts as they are defined in the Act. Reasons for s. 61A(3) 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

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 33 Decided: 22 February 2013 previous non-exclusive possession act was done, unless the circumstances described in s. 61A(4) apply. In my view, the application does not offend the provisions of s. 61A(3) as the application does not make a claim for exclusive possession. 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. The application satisfies the condition of s. 190B(9), because it meets all of the three subconditions, as set out in the reasons below. Reasons for s. 190B(9)(a): The application satisfies the subcondition of s. 190B(9)(a). Schedule Q contains the statement that ‘the native title claim group does not claim ownership of minerals, petroleum or gas that are wholly owned by the Crown’ Reasons for s. 190B(9)(b) The application satisfies the subcondition of s. 190B(9)(b). The application makes no claim over an offshore place, and does not claim exclusive possession. Schedule P therefore states that this requirement is not applicable. Result for s. 190B(9)(c) The application satisfies the subcondition of s. 190B(9)(c). Attachment B(2) at paragraph 3 contains the statement that the application excludes land or waters where the native title rights and interests claimed have been otherwise extinguished.

[End of reasons]

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 34 Decided: 22 February 2013 Attachment A Summary of registration test result

Application name Adnyamathanha People #5

NNTT file no. SC2012/004

Federal Court of Australia file no. SAD277/12

Date of registration test decision 22 February 2012

Section 190C conditions

Test condition Subcondition/requirement Result s. 190C(2) Aggregate result: Met

re s. 61(1) Met

re s. 61(3) Met

re s. 61(4) Met

re s. 62(1)(a) Met

re s. 62(1)(b) Aggregate result: Met

s. 62(2)(a) Met

s. 62(2)(b) Met

s. 62(2)(c) Met

s. 62(2)(d) Met

s. 62(2)(e) Met

s. 62(2)(f) Met

s. 62(2)(g) Met

s. 62(2)(ga) Met

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 35 Decided: 22 February 2013 Test condition Subcondition/requirement Result

s. 62(2)(h) Met s. 190C(3) Not Met s. 190C(4) Overall result: Met

s. 190C(4)(a) N/A

s. 190C(4)(b) Met

Section 190B conditions

Test condition Subcondition/requirement Result s. 190B(2) Met s. 190B(3) Overall result: Met

s. 190B(3)(a) N/A

s. 190B(3)(b) Met s. 190B(4) Met s. 190B(5) Aggregate result: Met

re s. 190B(5)(a) Met

re s. 190B(5)(b) Met

re s. 190B(5)(c) Met s. 190B(6) Met s. 190B(7)(a) or (b) Met s. 190B(8) Aggregate result: Met

re s. 61A(1) Met

re ss. 61A(2) and (4) Met

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 36 Decided: 22 February 2013 Test condition Subcondition/requirement Result

re ss. 61A(3) and (4) Met s. 190B(9) Aggregate result: Met

re s. 190B(9)(a) Met

re s. 190B(9)(b) Met

re s. 190B(9)(c) Met

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 37 Decided: 22 February 2013 Attachment B Documents and information considered The following lists all documents and other information that I have considered in coming to my decision about whether or not to accept the application for registration. 1. Adnyamathanha People #5 native title determination application, as filed in the Court on 8 November 2012; 2. Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 3. The Tribunal’s Geospatial Services ‘Geospatial Assessment and Overlap Analysis’ (the geospatial report) for 19 November 2012, being an expert analysis of the external and internal boundary descriptions and mapping of the application area and an overlap analysis against the Register, Schedule of Applications, determinations, agreements and s. 29 notices and equivalent; 4. Extract of the Register of Native Title Claims, SC09/1—Kokatha Uwankara Native Title Claim—SAD90/09; 5. Additional material provided by the applicant, 7 January 2013: o Schedule 1 - Decision of the Federal Court of Australia in Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 (30 March 2009); o Schedule 2 - Relevant pages of the Adnyamathanha Genealogy by Christine Davis and Pearl McKenzie, Aboriginal Heritage Branch, South Australian Department of Environment. Adelaide: Government Printer 1985; o Schedule 3 - Notice of the Annual General Meeting and Special General Meeting of the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC ("ATLA") and Meeting of the Adnyamathanha Native Title Holders; o Schedule 4 - Mailing list of Notice of the Annual General Meeting and Special General Meeting of the ATLA and Meeting of the Adnyamathanha Native Title Holders; o Schedule 5 - The Advertising proofs for the Advertiser and Transcontinental publications; o Schedule 6 - Rules of ATLA; o Schedule 7 - NNTT Registration Test Decision for Adnyamathanha No.3 NTC; o Schedule 9 - Material from Starkey & Ors v the State of South Australia [2011] SASCFC 164 6. Additional material provided by the applicant, 14 January 2013: o Schedule 8 -Witness statement of [claimant—name removed], claim group member; o Schedule 10 - Redacted Adnyamathanha report from determination and relevant part of Adnyamathanha Form 1

[End of document]

Reasons for decision: SC2012/004—Adnyamathanha People #5—SAD277/12 Page 38 Decided: 22 February 2013