Spinifex People

National Native Title Tribunal

REASONS FOR DECISION COVER SHEET REGISTRATION TEST

DELEGATE : Hugh Chevis

APPLICATION NAME : Spinifex

NAME(S) OF APPLICANT(S) : Mark Anderson

NNTT NO: WC95/51 FEDERAL COURT NO: WAG6043/99 REGION : North West, Western Australia

DATE APPLICATION MADE : Original Application lodged 3 October 1995 amended application lodged 17 September 1999.

DECISION

The delegate has considered the application against each of the conditions contained in s190B and 190C of the Native Title Act 1993.

DECISION

The application IS ACCEPTED for registration pursuant to s190A of the Native Title Act 1993.

Hugh Chevis DELEGATE DATE

Information considered in making the decision

There are numerous documents on Tribunal files relevant to the amended application. Section 190A(3) provides that the Registrar must have regard to any documents provided by the applicant, any results of tenure searches undertaken by the Registrar and, to the extent practicable, any information supplied by the Commonwealth or State governments which is relevant to the s.190B and s.190C conditions.

I have had access to all documents in Tribunal working files other than documents submitted for the purposes of mediation (or prepared for the conduct of and in the course of mediation) which, if disclosed to the Delegate or other persons for the purposes of or in relation to the outcome of the registration test, may prejudice the mediation of this application.

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

¨ Spinifex Working Files (Parts A, B & C)

¨ Spinifex Registration Test file

¨ The National Native Title Tribunal Geospatial Database;

¨ The Register of Native Title Claims;

¨ The Native Title Register;

¨ Determination of Representative ATSI Bodies: their gazetted boundaries;

¨ Affidavits, Future Act Files where the future act matters related to any part of the area covered by this application;

¨ Submissions from the Western Australian State Government in relation to the applications;

¨ Submissions from the Commonwealth Government in relation to the applications

Documents which I have considered include the following:

FAU Files WO96/0130, Tenure Information 96/0131 Statements of Contentions Attachment A6A Indigenous sites known within area of claim. Attachment A8(a) Copy of DOLA “Reserves Index Enquiry” Attachment A8(d) Summary of the tenure history for the area subject of the application –summary of DOLA file Attachment A8(g) Supporting Historical Information(listed references) Attachment A9 Copies of newspaper clipping relevant to claimants area subject of the application

Document 5 Lease details re Reserves within claim area Document 10 (4/10/95) Minute from [name removed] to Registrar re acceptance Document 98 (14/7/97) Land tenure information. Document 165 Letter to State from [name removed] Document 169 (1/7/98) Media release NNTT re Spinifex Agreement Document 170 (2/7/98) WA Government Statement re Spinifex

REASONS FOR DECISION A. Procedural Conditions

Information, etc, required by section 61 and section 62: The Registrar must be satisfied that the application contains all details and other 190C2 information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

Details required in section 61

61(3) Name and address for service of applicant(s)

Reasons relating to this sub-section Application complies with the sub-section The amended application states the name of the applicant as Mr Mark Anderson. The address for service of the applicant is provided in Part B of the amended application and is given as C/o Daniel O’Dea, Principal Legal Officer, Ngaanyatjarra Land Council, Perth address. Requirements are met.

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

Reasons relating to this sub-section Application complies with the sub-section Schedule A in the amended application provides a description of the claim group.

The details required in s61(4) are the same as those required by 190B.

The application describes the Native Title Claim Group comprises of those Aboriginal people who hold in common the body of traditional law and culture governing the area the subject of the claim and who:

(a) are descended from the occupants of the area at the time of the assertion of British sovereignty including being the descendants of [names removed] and or

(b) have a personal connection to the Claim Area through birth or other personal circumstances, such connection being recognised by the claim group membership as a whole, as giving that person a valid entitlement to the native title rights and interests claimed therein.

The application also advises that the people in the application have Aboriginal names and it is not customary for these names to be made public.

The question then, is whether the description of the claim group provided in the amended application is sufficiently clear so that it can be ascertained whether any particular person is a member of the claim group. 5

Where persons are descended from the named people in Schedule A(a), I believe it would be possible to verify if a particular person is or is not a descendant and therefore belongs to the group.

Furthermore, if a particular person is not mentioned in (a), then the description provided in (b) would assist in identifying a person or persons who belong to the claim group. Although the description in (b) states connection through “other personal circumstances” and these are not detailed, given that this connection must be recognised by the whole claim group, I believe provides sufficient clarity.

I am of the opinion that the description identifies members of the group sufficiently clearly for it to be ascertained whether any particular person is one of those persons.

Requirements are met.

Application is in the prescribed form1; lodged in the Federal Court, contains 61(5) prescribed information2, and accompanied by prescribed documents and fee

Reasons relating to this sub-section Application complies with the sub-section

Prescribed Form The application is in the form prescribed by Regulation 5(1)(a) Native Title (Federal Court) Regulations 1998..

Lodged in the Federal Court

As required under section 61(5)(b), the amended application was lodged in the Federal Court on 17 September 1999.

Prescribed Information

The prescribed information is contained in the application and Affidavits. I refer to my reasons which follow against each separate requirement.

Accompanied by prescribed documents

The application is accompanied by a map and Affidavit, all of which comply with the requirements of s.62.

Requirements are met.

Details required in section 62(1)

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

Reasons relating to this sub-section Application complies with the sub-section The amended application is accompanied by an Affidavit by the applicant, [name removed] signed on 8 March 1999. The Affidavit complies with the content requirements set out in section 62(1). The Applicant states that: · To the best of the applicant’s knowledge, information and belief 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. (s.62(1)(a)(i)). · To the best of the applicant’s knowledge, information and belief none of the area covered by the application is also covered by an entry in the National Native Title Register. (s.62(1)(a)(ii)). · To the best of the applicant’s knowledge, information and belief all

1 Note that in relation to pre 30.09.98 applications, the application does not need to be in the prescribed form as required by the amended Act. Note also that pre 30.09.98 applications are deemed to have been filed in the Federal Court. 2 Note also that “prescribed information” is that which is required by s62 as set out in the text of this reasons document under “Details required in section 62(1)”. 7

statements made in the application are true. (s.62(1)(a)(iii)). · The applicant is authorised by all the persons in the Native Title Claim Group to make this application and deal with all matters arising in relation to it. (s.62(1)(a)(iv)). · Pursuant to section 64(5) the applicant is further authorised by all of the applicants in the original application to replace them and to deal with all matters arising in relation to that application. (s.62(1)(a)(iv) & s.64(5)). · The basis for the Applicant’s belief that he is authorised to replace the original applicants and deal with all matters arising in relation to that application, is that the process of decision making required, under the traditional laws and customs of the persons in the Native Title Claim Group must be complied with in relation to the authorising of things of this kind, has been complied with. (s.62(1)(a)(v)). · That the process of traditional decision making required and the traditional law and customs of the Native Title Claim Group require it to canvas the views of all its members and reach a decision based on consensus. (s.62(1)(a)(v)).

The Affidavit is witnessed by Juice of the Peace and signed by the applicant on 8 March 1999.

However, the Affidavit has not been either affirmed or sworn.

According to Acts Interpretation Act 1901, 25C “Compliance with forms” states: “Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.”

I am therefore of the opinion that this Affidavit would fit into this category. All the other information is correct.

Requirements are met.

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

Comment on details provided

It is not a mandatory requirement that details of traditional physical connection are contained in the application for the purposes of s.62(1)(c), however, some details of physical connection are provided in Attachments E, G and M.

Further details of traditional physical connection has been provided in documents previously provided to the Tribunal. Reference material is also listed.

The adequacy of the information provided in relation to traditional physical connection is assessed at s.190B(7).

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

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

Reasons relating to this sub-section Application complies with the sub-section Schedule B of the amended application provides information in the way of description. A map enabling the internal and external boundaries to be identified has also been provided. Requirements are met.

62(2)(a)(ii) Information identifying any areas within those boundaries which are not covered by the application

Reasons relating to this sub-section Application complies with the sub-section

Attachment E of the amended application also provides details of internal boundaries excluded from the claim area. The description of areas excluded can be objectively applied to establish whether any particular land within the external boundary of the application is within the claim area or not. I consider that this provides a reasonable level of certainty.

Requirements are met.

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

Reasons relating to this sub-section Application complies with the sub-section The amended application provides two maps which shows the external boundaries. There has been no change with the boundaries of the area covered by the original application. One map has been produced by WALIS on 24/4/98, while the other map has been produced by the Tribunal’s Geospatial Unit as part of Assistance to Applicants. Both maps clearly identify the external boundaries of the area covered by the application. Requirements are met.

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

Reasons relating to this sub-section Application complies with the sub-section

The requirements of s.62(2)(c) can be read widely to include all searches conducted by any person or body. However, I am of the view that I need only be informed of searches conducted by the applicant, in order to be satisfied that the application complies with this condition. It would be unreasonably onerous to expect applicants to have knowledge of, and obtain details about all searches carried out by every other person or body.

Schedule D of the amended application refers to Attachments A8a, A8b, A8c, A8e and A8f provided with the original application. These documents have been tabled and listed as part of the information being considered in making the decision at the beginning of this document.

Schedule L of the amended application provides further details of searches conducted to determine the existence of non-native title rights and interests. These are listed as A, B C and D.

Requirements are met

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

Reasons relating to this sub-section Application complies with the sub-section

Section 62(2)(d), requires the applicant to provide: a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.

I have outlined the rights and interests claimed in my decision in relation to s.190B4. Attachment E of the amended application provides a description of native title rights and interests claimed.

Additionally, Schedule G identifies some of the activities members of the native title claim group carry out. Further evidence has previously been provided to the Tribunal in the original application in regard to activities carried out by members of the group.

Requirements are met

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

Reasons relating to this sub-section Application complies with the sub-section The factual basis for the assertion that the native title claim group has and their predecessors had, an association with the area, is outlined in Schedule F of the amended application. Information previously provided to the Tribunal as part of the original application has also been used. I have detailed the factual basis, as described by the applicants, in my reasons for decision in relation to condition 190B5.

I am satisfied that the amended application, the original application and associated material produced and listed, sets out a general description of the factual basis on which the claim group has and their predecessors had an association with the area.

Requirements are met.

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

Reasons relating to this sub-section Application complies with the sub-section The factual basis for the assertion that traditional laws and customs exist that give rise to the claimed native title is outlined at Schedule F of the amended application. Information previously provided to the Tribunal as part of the original application has also been used. I have detailed the factual basis, as described by the applicants, in my reasons for decision in relation to condition 190B5.

Requirements are met.

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

Reasons relating to this sub-section Application complies with the sub-section The factual basis for the assertion that the native title claim group has continued to hold native title in accordance with traditional laws and customs is outlined at Schedule F of the amended application. Information previously provided to the Tribunal as part of the original application has also been used. I have detailed the factual basis, as described by the applicants, in my reasons for decision in relation to condition 190B5.

I am satisfied that the amended application, the original application and associated material produced and listed, sets out a general description of the factual basis on which the claim group has continued to hold native title in accordance with traditional laws and customs.

Requirements are met.

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

Reasons relating to this sub-section Application complies with the sub-section

The application provides general details of activities that the native title claim group carries out in relation to the area claimed at Attachment G. Previous documents provided to the Tribunal have been used to assess this section.

I consider that the activities that the group carries out in the claim area are described in general terms by Schedule G is very brief and does not provide sufficient detail. However, information previously provided to the Tribunal clearly identifies activities carried out by the group.

Requirements are met.

62(2)(g) Details of any other applications to the High Court, Federal Court or a recognised State/Territory body the applicant is aware of (and where the application seeks a determination of native title or compensation)

Reasons relating to this sub-section Application complies with the sub-section

Details are provided at Schedule H of the amended Application, which states: … “There are no other applications for a determination of native title or determination of compensation in relation to native title in the claim area.”

Requirements are met.

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

Reasons relating to this sub-section Application complies with the sub-section Schedule I of the amended application provides details of one s.29 notice which affects the area.

Section 62(2)(h) requires that the application must contain the details of any notices under section 29 that the applicants are aware of.

Requirements are met.

Common claimants in overlapping claims: The Registrar must be satisfied that no person included in the native title claim group for the 190C3 application (the current application) was a member of the native title claim group for any previous application if: (a) the previous application covered the whole or part of the area covered by the current application; and (b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and (c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

I am satisfied that the application meets this condition and set out my reasoning as follows.

Reasons for the Decision

In assessing the Spinifex application against this condition of the registration test I have relied upon information obtained from the Tribunal’s Geospatial Unit together with the amended application. According to data from the Geospatial Unit there are no overlaps.

Also in the amended application the applicants state in Schedule O “There are no native title claims overlapping with the Spinifex claim.”

Requirements are met.

Certification and authorisation: 190C4(a) The Registrar must be satisfied that either of the following is the case: (a) the application has been certified under paragraph 202(4)(d) by each representative and Aboriginal/Torres Strait Islander body that could certify the application in performing its 190C4(b) functions under that Part; or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Reasons for the Decision

In order to meet this condition I must be satisfied that the application has been certified by each representative body that could certify the application under 190C4(a) or be satisfied that the applicants have been authorised, the test of which is outlined at s.190C(5)

Certification

There are two Native Title Representative Bodies, gazetted 30 December 1993, that cover part of the area of this application. The applicant also advise in Schedule K that the Ngaanyatjarra Land Council and Aboriginal Legal Service are the representative bodies for the area covered by the application. 14

The total area of the claim is 54,315.639 sq.km. The Aboriginal Legal Service covers the claim area completely, however, the Ngaanyatjarra Land Council only covers 17,789.552 of the claim area. I am therefore of the opinion that either the Aboriginal Legal Service can certify the application completely, or both the NLC and ALS must certify the application.

Authorisation

In the alternative, the application may be authorised under s.190C4(b). To satisfy this section, the requirements of s.190C5 must be met.

I am satisfied that the statements in the application satisfies s.190C5. My reasons for reaching this finding, are contained in my reasons for decision in relation to s.190C(5).

The application meets the requirements of s190C4(b).

Evidence of authorisation: If the application has not been certified as mentioned in paragraph (4)(a), the Registrar 190C5 cannot be satisfied that the condition in subsection (4) has been satisfied unless the application: (a) includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and (b) briefly sets out the grounds on which the Registrar should consider that it has been met. Reasons for the Decision

Attachment R provides Authorisation by [name removed] under s.190C(5).

In his statement, [name removed] states:

“I, [name removed], the applicant in these proceedings am a member of the Native Title Claimant Group and I am authorised to make this application and deal with the matters arising in relation to it by all the persons in the Native Title Claim Group.”.

This statement satisfies the requirements under s.190C(5)(a) in that a statement required under 190C4(b) has been supplied.

In addition, Schedule R briefly sets out the grounds on which the Registrar should consider that it has been met. In his statement, the applicant [name removed], describes the processes involved with decision making required by the persons of the Native Title Claimant Group. He states that the traditional law and customs of the group have been followed with the group canvassing the views of all its members in order to reach a decision based on consensus. This process of traditional decision making and consultation was completed prior to the lodgement of the claim and the decisions reached have been reaffirmed whenever the Native Title Claimant Group have met to discuss the claim. He also states that this process of traditional decision making was abided by for the purpose of making the changes contained in the amended application.

Requirements are met.

B. Merits Conditions

Description of the areas claimed: The Registrar must be satisfied that the information and map contained in the application as 190B2 required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

I am satisfied that the application meets this condition and set out my reasoning as follows:- Reasons for the Decision

In applying this condition I have given primary consideration to the Spinifex amended application and the accompanying documents, together with information provided by the Tribunal’s Geospatial unit.

External boundaries:

The map identifies external boundaries of the areas claimed. Latitudes and longitudes are provided which make it possible to identify the location claimed, together with a map of Western Australia which identifies the locality of the land on the surface of the earth.

I am therefore satisfied that the external boundary of the application and the map meets the requirements of s.62(2)(b) as the boundaries of the areas covered by the application can be identified.

In addition to the provision of a map defining the external boundaries of the claim, Schedule B contains a written description of the external boundaries.

I am therefore satisfied that the technical description of the external boundaries coincides with the map provided.

I am satisfied that the physical description of the external boundaries meets the requirements of s.62(2)(a)(i).

Internal boundaries:

The internal boundaries are described as part of the tenure in Schedule L under “Tenure and Land Use Issues.” Attachment D refers to searches conducted and refers to Attachments submitted in the original application.

A general exclusion clause regarding tenure has been included in the application in Attachment E.

It states:

(i) The applicant acknowledges that any area covered by a valid interest pursuant to a grant or statute prevails over his native title rights and interests to the extent of any inconsistency.

(ii) The applicant excludes from the claim area and any areas covered by: 16

(a) any current or former valid and unqualified grants of estates in fee simple which extinguish native title; (b) any current or former valid grants of leasehold estates which extinguish native title; (c) any permanent public work; (d) any existing public road or dedicated road.

Point (ii) states that “the applicant excludes from the claim area and any areas covered by” etc. I am of the opinion that the word “and” should not be included and is a typographical error. The sentence should read “the applicant excludes from the claim area any areas covered by: …”.

I must be satisfied that the information required by paragraphs 62(2)(a)(ii) is sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

I find the above mentioned class exclusions of tenure, a clear statement of particular lands and waters to be excluded from the claim area.

Conclusion

Requirements are met.

Identification of the native title claim group: 190B3 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.

I am satisfied that the application meets this condition because of the following reasons:

Reasons for the Decision

Schedule A in the amended application provides a description of the claim group.

The details required in s61(4) are the same as those required by 190B3.

(b) are descended from the occupants of the area at the time of the assertion of British sovereignty including being the descendants of [names removed]; and or

The application also advises that the people in the application have Aboriginal 17 names and it is not customary for these names to be made public.

Where persons are descended from the named people in Schedule A(a), I believe it would be possible to verify if a particular person is or is not a descendant and therefore belongs to the group.

I am of the opinion that the description identifies members of the group sufficiently clearly for it to be ascertained whether any particular person is one of those persons.

Requirements are met.

Identification of claimed native title The Registrar must be satisfied that the description contained in the application as 190B4 required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

I am satisfied that the application meets this condition because of the following reasons:

Reasons for the Decision

Attachment E of the amended application, the native title rights and interests are described as follows:

The native title rights and interests claimed are the rights and interests claimed are the rights to the possession, occupation, use and enjoyment as against the whole world for the whole of the area and any right or interest included within the same, and in particular, comprise:

a) rights and interests to possess, occupy, use and enjoy the area; b) the right to make decisions about the use and enjoyment of their country; c) the right of access to their country and the right to manage, live and travel anywhere in their country including the right to conduct and participate in meetings and ceremonies in and associated with their country and the right to visit, maintain, and control spiritual locations and features within their country; d) the right to control the access of others to and within their country, including the right to invite people onto their country and to regulate access to particular areas of land and to prevent others from visiting certain areas within their country; e) the right to use and enjoy resources, including the right to hunt and gather food, water, stone, ochre and pigment, wood and other materials in their country; f) the right to control the use and enjoyment of other resources within their country; g) the right to trade in resources from their country; h) the right to receive a portion of any resources taken by others from their country; i) the right to maintain and protect places of importance including the right to meet obligations and duties in the conduct of their social, spiritual, cultural and economic life as well as to teach people about the customs and traditions associated with their country; j) the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with their country; k) the right to have their decision-making authority in relation to all matters affecting their country recognised and accepted.

In accordance with the requirements of s.62(2)(d) the native title rights and interests which are claimed in terms of use, occupation, possession and enjoyment may be considered readily identifiable for the purposes of this condition of the registration test. The rights and interests claimed are not merely a statement to the effect that they are all those rights and interests that may exist or that may not have been extinguished at law. Each of the native title rights and interests claimed is readily identifiable through documentation provided in the attachments of the amended application, the claimant’s Affidavit, and previously documents provided to the Tribunal.

Requirements are met.

Sufficient factual basis: The Registrar must be satisfied that the factual basis on which it is asserted that the 190B5 native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; (c) that the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.

I am satisfied that the application meets this condition and set out my reasoning as follows. Reasons for the Decision

The applicant and members of the Native Title Claim Group have provided information in the amended application of 17 September 1999 and the original application lodged on 3 October 1995, to support the existence of native title rights and interests claimed and the assertions set down in section 190B(5). Reference is also made to other sources of material that is available to support the assertions. In order for the applicant and the Native Title Claim Group to pass this section of the registration test, I must be satisfied that the factual basis on which it is asserted that native title rights and interests is sufficient to support the assertions. I have considered the following documents: · Attachment E – Description of native title rights and interests · Attachment M – Traditional Physical connection · Affidavit by applicant · Affidavits by two members of the Claim Group which were used as part of a Future Act Hearing · Photographs produced as part of the Future Act Hearing · Authorisation by applicant [name removed] · Attachment G –Activities conducted by the Native Title Claimant Group · Schedule F – General description of native title rights and interests · (This Schedule states that searches have been conducted by the applicant’s anthropologist and have been referenced as relevant documentation) Ø personal histories of each of the families central to the Native Title Claimant Group; Ø family trees for each family of that group, including personal histories of many of the members of the NT Claimant Group; Ø details of waterholes and mythological sites and archaeological features in their country; Ø mythological information about sites located in their country; Ø details of traditional patterns of land ownership; 20

Ø description and explanation of extant traditional social, territorial, religious and economic behaviour; Ø relevant documented accounts of protohistoric and historic experiences of the Spinifex People – mission records, patrol reports, anthropological journals and papers, government reports and correspondence, transcripts and other documents from the Royal Commission into British Nuclear Tests at Maralinga; Ø newspaper clippings; Ø photographs, tape recordings, transcripts

Does the above material provide a sufficient factual basis to support the assertion that the Native Title Claim Group have, and the predecessors of those persons had, an association with the area?

Attachment M states: “The claimants have always maintained their traditional connection with the whole of their country by their continued and uninterrupted occupation of the area.”

“There has been no break in the physical, ancestral, psychological or intellectual connection between the Native Title Claimant Group and their country.”

Affidavits sworn by [name removed] and [name removed] (two of the applicants as part of the FAU proceedings WO96/130 [date removed] state that they are publicly acknowledged by Aboriginal people throughout the Western Desert to be a traditional owners of the country covered by application WC95/51 known to us the Spinifex Native Title Claim. Both confirm in their Affidavits that they are born in the claim area. (These exploration licenses cover parts of both native title claims WC96/79 and WC95/51)

[Name removed] continues in her Affidavit: “I am a senior Ngaanyatjarra woman, knowledgeable in Aboriginal tradition, and a leader, or boss woman for Women’s Law, pertaining to a wide geographic area, including the land now covered by Els 69/1184-1191” . “I have lived for more than thirty years in a fully traditional hunter- gatherer way over the tenement area.”

[Name removed] in his Affidavit of 28 January 1997 states:..“All the tenements are centrally located within the country for which I am acknowledged to be a traditional owner, and more over Senior Lawman. This position and responsibility is acknowledged by all adult men who participate in Western Desert men’s sacred ceremonial life and by all Aboriginal women knowledgeable in Aboriginal traditions".

An Affidavit was provided by [name removed], [information identifying individual removed], as part of the FAU proceedings. [name removed] worked from 1987 to 1991 with the Ngaanyatjarra Council.

In paragraph 46 [name removed] states: “Aboriginal traditional owners of Kulyuru and the surrounding area have chosen to record cultural information on video and audio tapes and on painted canvasses held by the Warburton Arts Project. Individual pieces include paintings by Tutana and Numitja Laidlaw and Neville McArthur”. She continues….”On at least two occasions these paintings have been taken by the artists and laid on the ground at Kulyuru to demonstrate the artists connection to this particular place, their authority under tradition to speak for the 21 country and hence to paint it; and as a means of illustrating ongoing responsibilities to and connection with the country despite the geographic remoteness of their permanent residence.”

“In the nine years since I first visited the proposed tenement area I have had many opportunities to observe some of the variety of ways that Aboriginal people utilise the area and demonstrate their ownership and custodial functions and responsibilities”.

Attachment G also states:… “All of the Native Title Claim Group live on or immediately adjacent to the claim area and have access to it.” This assertion is confirmed by the fact that…”as traditional owners and consequently members of the Ngaanyatjara Land Council they exercise their authority over the part of the claim which is the subject of the 99-year lease to the Ngaanyatjarra Land Council in accordance with traditional law.”

The applicant [name removed] states in this Affidavit dated 8/3/99 that to the best of his knowledge, information and belief all statements made in the application are true.

Searches conducted by the applicants’ anthropologists have produced numerous documentation and the list has been provided as part of the amended application. These documents would clearly provide detailed accounts of associations within the area of the clamant group as well as traditions and customs and confirm the assertions that the claimants have and their predecessors had possession, occupation, use and enjoyment of the claim area.

Does the above material provide a sufficient factual basis to support the assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests?

Affidavit of [name removed] dated [date removed] states … “I have lived for more than 30 years in a fully traditional hunter-gatherer way over the tenement area” “This means I have walked over the ground with my family, camping, collecting bush foods, participating in ceremonies, learning the traditions.”

In paragraph 8 she states … “I have authority under Aboriginal custom, to speak for this country. Others can not speak on top of me”.

She also states it is her country, where she was born, grew up, gave birth to and bought up her children. “Now my children and their children and grandchildren come to this place to Kulyuru and Baker Lake to their birthright country. They come to hunt for bush foods where they are allowed to under Aboriginal custom, to learn the stories, dance the special dances associated with this particular country and know the places in a full and deep way. They way they are entitled to.”

An Affidavit provided by [name removed] one the named applicants (dated [date removed]) provides the following information.

He states he was born in the area of the claim. He states ..”From my birth until adulthood I lived in a fully traditional way, walking, camping and travelling over the country between Lake Baker in the west and Watalya in the east.” “In this country events occurred which have great personal significance under Aboriginal custom. It

22 is where I was born, where my umbilical cord dried and dropped off, where I began my years of initiation into the sacred Men’s Business, where my mother and other close family members are buried. As a fully initiated man I have lived and walked over this area, maintaining the sacred places and taking responsibility for the country, participating in and co-ordinating ceremonial activities.”

He continues: “I have authority under Aboriginal custom to speak for this country. Others let me speak first”.

Attachment M of the amended application discusses traditional physical connection and asserts that… “The claimants have always maintained their traditional connection with the whole of their country by their continued and uninterrupted occupation of the area”. This connection has been maintained in the following ways: historical and geographic, social and economic, and religion.

Attachment M also states …”Each the claimants were born in their country.” It continues: …”The majority of the claimants experienced first contact with non- Aboriginal people as a direct consequence of the Maralinga atomic bomb tests. There has been no break in the physical, ancestral, psychological or intellectual connection between the Native Title claimant Group and their country.”

Attachment M also states…”that the applicants are exceptionally well versed in traditional religious law. Their knowledge and authority is recognised through the Western Desert and major ceremonies (in excess of 1000 people) are regularly held in their country.”

The applicant provides in this Affidavit dated 8/3/99 that to the best of his knowledge, information and belief all statements made in the application are true.

Does the above material provide a sufficient factual basis to support the assertion that the native title claim group has continued to hold the native title in accordance with those traditional laws and customs?

Schedule F states: “This native title continues to be held in accordance with the traditional laws and customs of the Native Title Claimant Group.”

The Affidavit sworn by [name removed] (dated [date removed]) provides information about how her family “come to hunt for bush foods where they are allowed to under Aboriginal custom, to learn the stories, dance the special dances associated with this particular country and know the places in a full and deep way. They way they are entitled to”.

Point 21 of the Affidavit provides further information; …. “In this country you can see all the campsites where people have been sleeping, and cooking food. You can see the dance grounds. You can see the stone tools and grinding stones, the remains of shelters etc. “

Attachment M also provides examples to support these statements about traditions and customs, such as song cycles and ritual behaviour, knowledge of site locations, control and responsibility for sacred pathways; site visitation, maintenance and responsibility; the storage maintenance and protection of sacred boards, and 23 knowledge of sacred language which further illustrates that traditional law and customs are currently practiced by the native title claimant group.

The original application, lodged on 3 October 1995, contains detailed information in regard to the claim area, and the rights and interests which are claimed. Detailed information is provided in this original application to support these assertions. Twenty two (22) Affidavits from members of the claimant group have been provided. The affidavits state:….. “I believe that all the statements made in the application this affidavit accompanies are true”. As the information regarding the rights and interests and further factual basis is contained in the application, I am of the opinion that these Affidavits strongly support the claimants application.

Attachment A6a provided with the original application lodged with the Tribunal on 3 October 1995, includes details of Indigenous sites known within the area of the claim. There are 467 sites named in this document.

Paragraph 11 of [name removed] Affidavit (provided as part of the FAU proceedings WO96/130) states .. “In the nine years since I first visited the proposed tenement area I have had many opportunities to observe some of the variety of ways that Aboriginal people utilise the area and demonstrate their ownership and custodial functions and responsibilities.”

The majority of the information, data and assertions included in the original application has been repeated in the amended Application. Therefore I am of the opinion that the Affidavits signed by these 22 members of the claimant support this amended application.

The applicant [name removed] states in the Affidavit dated 6/3/99 that to the best of his knowledge, information and belief all statements made in the application, including the above assertions, are true.

Other Information

Schedule F contains details of searches conducted by the applicant’s anthropologists. These listed reports and documents support the assertions in relation to the claim group’s claims. Furthermore the following statements are made in this Schedule.

· All support (referring to the listed documents) the above claim that the Native Title Claim Group has and their ancestors have, since the assertion of British sovereignty possessed, occupied, used and enjoyed the area subject of the Native Title Claim. · The Native Title Claimant Group rights to such possession, occupation, use and enjoyment derived from and are currently held in accordance with Aboriginal traditional laws and customs including the custom of title passing by descent. · This native title continues to be held in accordance with the traditional laws and customs of the Native Title Claimant Group.

Requirements are met.

Prima facie case: 190B6 The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Reasons for the Decision

Can each native title right and interest be established on the basis of the relevant information?

a) Rights and interests to possess, occupy, use and enjoy the area;

Attachment G of the amended application states: … ”All of the Native Title Claim Group lived on or immediately adjacent to the claim area and have access to it”. “In the course of their occupation and use of the area the Spinifex people have established tracks, homelands, water points, camping areas throughout the claim area.”

Also stated in the same attachment …”All of the Native Title Claimant Group participate in a full range of traditional practices throughout the lands. These include; hunting, gathering, ritual, ceremony.“

Affidavits by two of the Native Title Claim Group, [name removed] and [name removed], provide examples of possession, occupation, use and enjoyment of the claim area.

In [name removed] Affidavit paragraphs 3 and 4 she states: …. “I am also publicly acknowledged by Aboriginal people throughout the Western Desert to be a traditional owner of the country covered by WC95/51, known to us as the Spinifex Native Title Claim.” “I understand that eight mineral exploration licenses have been applied for by Wardell Nominees over land for which I am a traditional owner. These exploration licenses cover parts of both native title claims WC96/79 and WC95/51.”

[Name removed] Affidavit also confirms that he is a traditional owner of the country covered by WC95/51 and is publicly acknowledged by Aboriginal people throughout the Western Desert.

I refer to the evidence provided in the following points (b) to (j)

In my opinion there is evidence to support the contention that the Spinifex people have the right to possess, occupy, use and enjoy the area.

b) The right to make decisions about the use and enjoyment of their country;

In Attachment G there are several references to indicate the claimants make decisions about the use and enjoyment of the area. 25

For example: “All of the Native Title Claim Group participate in the full range of traditional practices throughout the lands. These include: hunting, gathering, ritual, ceremony.”

Attachment M states: “The lives and patterns of behaviour of the claimants are still governed by traditional laws and customs. These customs include language (English is barely spoken by the majority of the members of the Group,) kinship relationships and behaviour, social etiquette and behaviour, hunting and gathering, food preparation, dress and personal decoration, material culture and weaponry, medicinal practice, initiation, education and marital rites, knowledge, use and management of the lands its resources (flora and fauna, water and other raw materials).”

Two members of the Native Title Claimant Group, [name removed] and [name removed] in their Affidavits state that they are publicly acknowledged by Aboriginal people throughout the Western Desert to be the traditional owners of the country claimed.

[Name removed] states in her Affidavit… ”I have lived for more than thirty years in a fully traditional hunter-gatherer way over the tenement area. This means I have walked over the ground with my family, camping, collecting bush foods, participating in ceremonies, learning the traditions”. In point 22: “People from many Aboriginal communities hold the senior men and women responsible for protecting this country, for making the plants and the animals, for keeping the country in its proper way, a balance way. I am a senior woman for this country; the country mining tenements have been put on top of.”

Point 6 [name removed] states… “All the tenements are centrally located within the country for which I am acknowledged to be a traditional owner, and moreover, a Senior Lawman. This position and responsibility is acknowledged by all adult men who participate in Western Desert men’s sacred ceremonial life and by all Aboriginal women knowledgeable in Aboriginal traditions.”

Point 9 [name removed] states….”I have authority under Aboriginal custom to speak for this country. Others let me speak first”.

[Name removed] Affidavit dated 28/1/97 in point 15: “In 1980 the Ngaanyatjarra Council entered into a legal agreement with Shell Oil to safeguard areas of Aboriginal significance.

In my opinion there is evidence to support the contention that the Spinifex people have the right to make decisions about the use and enjoyment of their country. c) The right of access to their country and the right to manage, live and travel anywhere in their country including the right to conduct and participate in meetings and ceremonies in and associated with their country and the right to visit, maintain and control spiritual locations and features within their country;

Attachment M provides some examples of access to country. “The applicants are exceptionally well-versed in traditional religious law. Their knowledge and authority is recognised through the Western Desert. Major ceremonies (in excess of 1000 people) are regularly held in the country. The religious status of the claimants is 26 expressed through song cycles and ritual behaviour, knowledge of site locations, control and responsibility for secret pathways.”

[Name removed] in his Affidavit states: “As a fully initiated man I have lived and walked over this area maintaining the secret places and taking responsibility for the country, participating in and co-ordinating ceremonial activities”.

Tenure information also states that the claimants hold a 99 year lease in part of the area subject to the claim. I have formed the opinion that the claimants have access to the claim area in a traditional, practical and legal sense.

There are also significant sites within the claim area. Attachment 6A of the original application lists 467 Indigenous sites known within the area of the claim.

Also is discussed is places where people live in the claim area.

[Name removed] in her Affidavit states, …”I have walked over the ground with my family, camping, collecting bushfoods, participating in ceremonies, learning the traditions.”

She continues in point 8 … “I have authority under Aboriginal custom, to speak for this country. Others can not speak on top of me.”

[Name removed] also in his Affidavit states he is acknowledged to be a traditional owner, and moreover a Senior Lawman. This position and responsibility is acknowledged by all adult men who participate in Western Desert men’s sacred ceremonial life and by all Aboriginal women knowledgeable in Aboriginal traditions.

In point 20 he provides information about sacred law. He states…”during Men’s Business hundreds of people use the main road from the south up to Warburton past Lake Baker. We stop and get water at rock holes and at the handpump west of the tenement area. During these times the road is closed to everyone else. No-one is allowed to travel on the road unless they are part of the Men’s Business. This happens a couple of times every year”.

In point 22 of [name removed] Affidavit she states: “People from many Aboriginal communities hold the senior men and women responsible for protecting this country, for making the plants and the animals, for keeping the country in its proper way, a balance way. I am a senior woman for this country; the country mining tenements have been put on top of.”

In my opinion there is evidence to support the contention that the Spinifex have the right of access to their country and the right to manage, live and travel anywhere in their country including the right to conduct and participate in meetings and ceremonies in and associated with their country and the right to visit, maintain and control spiritual locations and features within their country. d) The right to control the access of others to and within their country, including the right to invite people onto their country and to regulate access to particular areas of land and to prevent others from visiting certain areas within their country;

In my opinion there is evidence to support the Spinifex claim that they have right to control the access of others. 27

In Attachment G, it states: “As traditional owners and consequently members of the Ngaanyatjara Land Council they exercise their authority over that part of the claim which is the subject of the 99-year lease to the Ngaanyatjarra Land Council in accordance with traditional law”.

As part of the right to control the access – the claimants have always maintained their traditional connection with the whole of their country by their continued and uninterrupted occupation of the area.

It is recognised that both [name removed] and [name removed] speak for the country as senior men and woman.

They discuss in their Affidavits about “going into this country and seeing all the campsites where people have been sleeping, and cooking food. You can see the dance grounds. You can see stone tools and grinding stones, the remains of shelters”.

Point 8 of [name removed] affidavit states…. “As a fully initiated man I have lived and walked over this area, maintaining the sacred places and taking responsibility for the country, participating in and co-ordinating ceremonial activities”.

He continues in point 12… For many years I have actively sought to look after my country in a responsible way under Aboriginal Law. Since 1978 some of the things I have done have been documented by white people. My words have been used to write to the WA Government asking them to give us papers, title to our land”.

Point 15 of [name removed] Affidavit advises… “In 1980, the Ngaanyatjara Council entered into a legal agreement with Shell Oil to safeguard areas of Aboriginal significance. In the country around Baker Lake I was one of the main Scouts or Guides, making sure that the company people keep away from special Aboriginal things.”

In point 16 of [name removed] Affidavit… “On another five occasions groups of women have spontaneously decided to dance and sing for themselves – to celebrate women from the geographically distant communities coming together and camping; to instruct younger women in Women’s Law; and as a precursor at land meetings to validate through participating in “inma” the right to speak for the country.”

In point 11 … ‘In the nine years since I first visited the proposed tenement area I have had many opportunities to observe some of the variety of ways that Aboriginal people utilise the area and demonstrate their ownership and custodial functions and responsibilities”.

In my opinion there is evidence to support the contention that the Spinifex people have the right to control the access of others to and within their country, including the right to invite people onto their country and to regulate access to particular areas of land and to prevent others from visiting certain areas within their country. e) the right to use and enjoy resources, including the right to hunt and gather food, water, stone, ochre and pigment, wood and other materials in their country;

Attachment G asserts that all of the claimant group participate in the full range of 28 traditional practices through the lands. These including hunting and gathering.

Attachment M discusses social and economic system in the area and state the lives and patterns of behaviour are still governed by traditional laws and customs. It states hunting and gathering, food preparation, material culture and weaponry, medicinal practice, knowledge, use and management of the land resources (flora and fauna, water and other raw materials).

In her affidavit [name removed] states that she has lived for more than thirty years in a fully traditional hunter-gatherer way over the tenement area. “This means I have walked over the ground with family, camping, collecting bush foods, participating in ceremonies, learning the traditions”.

In [name removed] Affidavit (dated [date removed]) she states in point 18: “Several times I have visited the tenement area with traditional owners now resident at Warburton. During these times family groups camped; hunted goannas, bush turkeys and kangaroos; gathered quandong fruit, acacia beans/seeds for eating and nectar for drinking; cut eucalypt and quandong roots for artefact production (some for personal use and some for commercial sale); reused grinding stones from previous campsites to crack nuts and grind ochre; set fire to parts of the countryside according to customary environmental knowledge; and collected eucalypt nuts to make necklaces for personal adornment and sale.”

In my opinion there is evidence to support the contention that the Spinifex people have the right to use and enjoy resources, including the right to hunt and gather food, water, stone, ochre and pigment, wood and other materials in their country; e) The right to control the use and enjoyment of the resources within their country;

This right flows in part from the right to use and enjoy resources in their country referenced to in (d) above.

The comments provided in [name removed] Affidavit illustrate that the Spinifex people have the right to control the use and enjoyment of resources within their country.

As traditional owners they exercise their authority over that part of the claim which is the subject of the99-year lease to the Ngaanyatjarra Land Council in accordance with traditional law.

In [name removed] Affidavit she states:

…. ‘If the Aboriginal rules of this area are not respected, if miners and men go walking anywhere they might stumble across very sacred places. If these places are touched, things taken, rocks taken or rockshelters walked into, women throughout a big area of the desert might die. The women’s Law would be broken for all time. We say this really seriously. There are ceremonial grounds from the Tjukurrpa which are inside the mining blocks and they must not be walked over or touched”

Point 13 of the Affidavit continues: … “We do not want exploration to take place as it will interfere with Aboriginal use of the area. We are always visiting and camping in this country. This area is not remote, it is my land where I was born, grew up, gave birth to and bought up my children. Now my children and their children and 29 grandchildren come to this place to Kulyuru (after the big gorge) and Baker Lake, to their birthright country. They come to hunt for bush foods where they are allowed to under Aboriginal custom, to learn the stories, dance the special dances associated with this particular country and know the places in a full and deep way. They way they are entitled to. How can they do this in a free way if miners are there? They would not be able to go onto their own land.”

Also in [name removed] Affidavit he states: … I am acknowledged to be a traditional owner, and moreover, a Senior Lawman. This position and responsibility is acknowledged by all adult men who participate in Western Desert men’s sacred ceremonial life and by all Aboriginal women knowledgeable in aboriginal traditions.”

“As a fully initiated man I have lived and walked over this area, maintaining the sacred places and taking responsibility for the country, participating in and co- ordinating ceremonial activities.”

In my opinion there is evidence to support the contention that the Spinifex people have the right to control the use and enjoyment of the resources within their country. g) The right to trade in resources from their country;

Although the applicants have not stated how resources are traded (and what is traded) in their documentation, because of their acknowledged status as traditional owners of the country covered by the claim, and because of their traditional customs and practices, including responsibility for the country, I am of the opinion there is overall evidence to support the contention that they have a right to trade in resources from their country.

In [name removed] Affidavit she discusses the cutting of quandong roots for artefact production (some for personal use and some for commercial sale), and collected eucalypt nuts to make necklaces for personal adornment and sale.

In my opinion there is evidence to support the contention that the Spinifex people have the right to trade in resources from their country. h) The right to receive a portion of any resources taken by others from their country;

In Attachment M the claimants discuss their traditional physical connection to the claim area. The connection has been maintained through historical and geographic, social and economic and religion.

Under social and economic the claimant group assert that :

“The lives and patterns of behaviour of the claimants are still governed by traditional laws and customs. These customs include language (English is barely spoken by the majority of the members of the Native Title Claimant Group) kinship relationships and behaviour, social etiquette and behaviour, hunting and gathering, food preparation, dress and personal decoration, material culture and weaponry, medicinal practice, initiation, educational and marital rites, knowledge, use and management of the land its resources (flora and fauna, water and other raw materials).”

Although there is no further evidence produced as part of the application, documents 30 listed in Schedule F of the application, would, I believe support the assertion that the claimants have on the face of it a right to trade in resources from their country. Also the fact that the Spinifex People are recognised as the traditional owners. i) The right to maintain and protect places of importance under traditional laws, including the right to meet obligations and duties in the conduct of their social, spiritual, cultural and economic life as well as to each people about the customs and traditions associated with their country;

In Attachment G, the applicants state: “All of the Native Title Claim Group live on or immediately adjacent to the claim area and have full access to it. All of the Group participate in the full range of traditional practices throughout the lands. These include: hunting, gathering, ritual, ceremony”.

In Attachment M it is stated: “the claimants have always maintained their traditional connection with the whole of their country by their continued and uninterrupted occupation of the area. This connection has been maintained by historical and geographic; social and economic; and religion”.

There is evidence in regard to the above in Affidavits sworn by [name removed] and [name removed].

Both applicants provide clear evidence and examples of traditional and customs practiced within the claim area.

In [name removed] she states: “I am a senior Ngaanyatjara woman, knowledgeable in Aboriginal tradition, and a leader, or boss woman for Women’s Law, pertaining to a wide geographic area, including the land now covered by Els69/1184-1191. “I have authority under custom, to speak for this country. Others can not speak on top of me”.

In point 17, she continues: “In 1994 I painted the Kungkarangkalpa Tjukurrpa (refers to the way we talk about the many women who became stars and Nyiru the man who chased them many hundreds of miles from South Australia to Kulyuru and further south to Cundeelee Mission) for Kulyuru on a very big canvas with Numitja Laidlaw. We were both married to the same man and lived around this country. You can see that painting, it is held by the Warburton Arts Project at Warburton. It has many details of the Tjukurrpa. It is a true and serious painting”.

In [name removed] Affidavit he states he is publicly acknowledged by Aboriginal people throughout the Western Desert to be a traditional owner of the country covered by WC95/51. Point 6…. “I am acknowledged to be a traditional owner, and moreover, a Senior Lawman”. This position and responsibility is acknowledged by all adult men who participate in Western Desert men’s sacred ceremonial life and by all Aboriginal women knowledgeable in Aboriginal traditions.”

Point 8 continues: “As a fully initiated man I have lived and walked over this area, maintaining the sacred places and taking responsibility for the country, participating in and co-ordinating ceremonial activities”

In [name removed] Affidavit point 17… “I have been present at four Aboriginal meetings in 1991, 1994 and two in 1996 at Sydney Yeo Chasm, convened to discuss land issues; mining exploration and native title. During preparation for each meeting the Aboriginal organisers stressed the traditional importance of the land 31 surrounding the Chasm as a meeting place. One of these meetings was filmed by the local Ngaanyatjarra Media Association, Irruntju Media. (This is a fifty minute film titled “spinifex Land Claim Native Title Meeting – 31/3.1996”)

She continues in point 29… “It has been well documented in anthropological literature relevant to the desert regions of Australia, and more particularly the Western Desert, that esoteric details of both sites and their connecting tracks may be restricted to certain groups on the basis of age, ritual status and/or gender.

In my opinion there is evidence to support the contention that the Spinifex people right to maintain and protect places of importance under traditional laws, including the right to meet obligations and duties in the conduct of their social, spiritual, cultural and economic life as well as to each people about the customs and traditions associated with their country. j) The right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with their country;

The right to maintain, protect and prevent the misuse is evidenced by the practices referred to by both claimants as outlined in their Affidavits and also the statements in the Attachments and Schedules of the amended Application.

Attachment G discusses activities by the Spinifex People. The Spinifex People have a 99-year lease over part of the claim area and they exercise their authority over the claim area in accordance with traditional law.

[Name removed] states: “I am a senior Ngaanyatjarra woman … I have authority under Aboriginal custom, to speak for this country. Others can not speak on top of me. On the Kungkarangkalpa Dreaming track Kulyuru is a main place for ladies. If the Aboriginal rules of this area are not respected, if miners and men go walking anywhere they might stumble across very sacred places. If these places are touched, things taken, rocks taken, or rockshelters walked into, women throughout a big area of desert might die.” “I cannot say much openly about why Kulyuru is very important – that is Women’s Business and should be kept quiet”.

[Name removed] also states… “I am also publicly acknowledged by Aboriginal people throughout the Western Desert to be a traditional owner and … a Senior Lawman. As a fully initiated man I have lived and walked over this area, maintaining the sacred places and taking responsibility for the country, participating in and co- ordinating ceremonial activities. I have the authority under Aboriginal custom to speak for this country. Others let me speak first. “

In my opinion there is evidence to support the contention that the Spinifex people have the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with their country; k) The right to have their decision-making authority in relation all matters affecting their country recognised and accepted.

I am of the opinion that this right has already been recognised by the granting of a 99 year lease over part of the claim area to the Ngaanyatjarra Land Council.

In the State’s submission of 11 December 1998 to the Tribunal regarding application of the registration test to WC95/51 they said: “After due consideration the State has decided not to submit information regarding the registration test due to the advanced discussions with the applicants”.

These advanced discussions related to negotiations about the applicants’ native title claim.

It is clear from the discussions with the applicants about their native title claim that the State acknowledge their decision making authority.

The State has publicly recognised the authority of this group in relation to this area. (WA Government media release 2/7/98 Document 170 Working File).

Attachment M and the Affidavits provided in the future act hearing give specific examples of the applicant’s decision making authority.

In my opinion there is evidence to support the connection that the Spinifex people have the right to have their decision-making authority in relation all matters affecting their country recognised and accepted.

Traditional physical connection: 190B7 The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such holder of a lease.

I am satisfied that the application meets this condition and set out my reasoning as follows.

Reasons for the Decision

In my opinion there is evidence to support the Spinifex People’s claim to traditional physical connection to the land and waters claimed.

Evidence to support this claim is contained in the following documents:

Ø Amended Application Ø Original Application Ø Affidavits by [name removed] and [name removed] Ø Affidavit by [information identifying individual removed] [name removed]

Attachment M states, the claimants have always maintained their traditional connection with the whole of their country by their continued and uninterrupted occupation of the area.

The connection has been maintained by historical, geographic, social and economic links.

Affidavits sworn by [name removed] and [name removed] provide clear, direct information about their own personal traditional connection as well as the Spinifex People. They also are senior people and have the right to speak for country.

I have not quoted from the above mentioned documents as I have already done so extensively with respect to the conditions of s.190B(5) and s.190B(6). I contend that those quotations are just as persuasive in respect of this condition.

No failure to comply with s61A: The application and accompanying documents must not disclose, and the Registrar 190B8 must not otherwise be aware, that, because of s61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

I am satisfied that the application meets this condition and set out my reasoning as follows:-

Reasons for the Decision

s61A(1) – No previous determination of native title

The applicants state in their application there is no previous native title determination. A search of the National Native Title Register has revealed that there is no approved determination of native title in relation to the area claimed in this application.

s61A(2) – No previous exclusive possession acts

This subsection provides that the area must not have been subject to a previous exclusive possession act attributable to the Commonwealth, or where this is State legislation, attributable to the State.

Commonwealth and State Previous Exclusive Possession Acts

Tenure information is included under Schedule L of the amended application Previous tenure information provided (dated 16/10/95) confirms there is a Reserve 30490 Class A Reserve vested in WA Wildlife Authority for the purpose of conservation of flora and fauna.. This is not clearly indicated on the map provided dated 14/10/95, but the Tribunal’s map includes this Reserve.

Reserve 30490 is vested in the WA Wildlife Authority for the purpose of conservation of flora and fauna. Pursuant to section 23B(9A) and for the provisions of the Title Validations Act 1995 (WA) as amended, a vesting involving the establishment of an area for preserving the natural environment of that area is not a PEPA. I am satisfied that Reserve 30490 is such a vesting. However, if I am not correct in taking that view, I am satisfied that the statements made at Attachment E are sufficient to exclude any area covered by the provisions of s.61(A)(2) .

Reserve 17614 is vested in the Aboriginal Lands Trust and leased to Nyaangatjarra Land Council. The purpose is "use and benefit of the Aboriginal inhabitants". There is also vacant crown land within the claim area.

In my view the current tenure information does not indicate that there are any other previous exclusive possession Act areas within the claim.

s61A(3) - No claim to exclusive possession over areas the subject of previous non exclusive possession acts.

Section 61A(3) provides that the application must not disclose, and I must not otherwise be aware, that the applicants claim exclusive possession of an area which has been the subject of a previous non-exclusive possession Act attributable to the Commonwealth or the State.

The tenure discloses that there are 7 historical pastoral leases (see land tenure dated 17/10/95 from LCMU) which may constitute State PNEPAs. However, the applicants seek the benefit of s.47A and s.47B in Schedule L which allows them (if the provision of s47A can be met) to claim exclusive possession of a PNEPA area.

S61A(4) – s47, 47A, 47B

The applicants also claim the benefit of s.47A and s.47B in Schedule L.

Section 61A(4) provides that subsections (2) and (3), in relation to PEPAs and PNEPAs respectively, do not apply to an application if sections 47, 47A or 47B apply . It is not necessary at this point to determine whether or not s.47A or s.47B are attracted beyond the protection the applicants have already sought. I need only be satisfied that this is not an application which should not have been made because s.61A would forbid its making. Subsection 61(4) specifically allows for the making of an application in these terms.

Conclusion

Requirements are met.

Ownership of minerals, petroleum or gas wholly owned by the Crown: The application and accompanying documents must not disclose, and the Registrar 190B9 must not otherwise be aware, that: (a) (a) to the extent that the native title rights and interests claimed consist or include ownership of minerals, petroleum or gas - the Crown in right of the Common- wealth, a State or Territory wholly owns the minerals, petroleum or gas;

I am satisfied that the application meets this condition and set out my reasoning as follows.

Reasons for Decision

In Schedule Q of the amended application it is stated: “To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.”

Requirements are met.

Exclusive possession of an offshore place: The application and accompanying documents must not disclose, and the Registrar must 190B9 not otherwise be aware, that: (b) (b) to the extent that the native title rights and interests claimed relate to waters in an offshore place - those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place;

I am satisfied that the application meets this condition and set out my reasoning as follows.

Reasons for the Decision

No rights and interests are claimed to waters in an offshore place. Requirements are met.

Other extinguishment: The application and accompanying documents must not disclose, and the Registrar must 190B9 not otherwise be aware, that: (c) (c) in any case - the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).

I am satisfied that the application meets this condition and set out my reasoning as follows:-

Reasons for the Decision

Under the requirements of this section, I must consider whether there are any native title rights and interests claimed by the applicant that have been otherwise extinguished.

· Legislative extinguishment

In Attachment E the application states:

(i) The applicant acknowledges that any area covered by a valid interest pursuant to a grant or statute prevails over his native title rights and interests to the extent of any inconsistency.

(ii) The applicant excludes from the claim area and any areas covered by:

This general exclusion clause covers any areas that may otherwise have extinguished native title rights and interests, and yet have not been specifically excluded or otherwise removed from the claim area.

I am satisfied that there are no areas claimed over which native title rights and interests have been extinguished.

End of Document