Registration test decision

Native title determination application Palpamudramudra Yandrawandra Native Title Claim

Applicant Leslie John Harris Snr, Leslie John Harris Jnr, Katherine Litherland, Tom Gallifant, Francis Roe

Federal Court No. QUD106/2016

NNTT No. QC2016/002

As required by s 190A(1) of the Native Title Act 1993 (Cth) (the Act),1 I have considered the claim made in the Palpamudramudra Yandrawandra native title determination application, in accordance with s 190A, against each of the conditions contained in ss 190B and 190C of the Act. This document comprises notice to the applicant and to the Federal Court under s 190D(1) and a statement of my reasons for the decision not to accept the claim for registration, which I have made under s 190A(6B).

For the purposes of s 190D(3), my opinion is that the claim does not satisfy all of the conditions in s 190B.

______Nadja Mack, delegate of the Native Title Registrar2 7 April 2016

1 All references to legislative sections refer to the Native Title Act 1993 (Cth), as in force on the day this decision is made, unless otherwise specified 2 Pursuant to delegation instrument dated 12 October 2015

Shared country, shared future. Introduction [1] On 9 February 2016, the Registrar of Federal Court (Federal Court) provided a copy of the Palpamudramudra Yandrawandra native title claim native title determination application and accompanying documents (application) to the Native Title Registrar (Registrar)3. This has triggered the Registrar’s duty4 to consider the claim in that application for registration5.

[2] Section 190A(6B) provides that the Registrar must not accept a claim for registration if it does not satisfy all of the conditions of s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters).

[3] I have found that the claim does not satisfy all of the conditions of ss 190B and 190C. My reasons for this decision are set out below.

Information considered when making the decision [4] There is certain information that I must have regard to when testing an application for registration and I may have regard to other information, as I consider appropriate – s 190A(3).

[5] I have had regard to information in the application and accompanying documents as well as further information submitted by the applicant’s representative directly to the Registrar on 11 and 16 February 2016 and a response, received on 4 April 2016, to a submission received from Queensland South Native Title Services (QSNTS) dated 25 February 20166. I have also considered information contained in an overlap analysis and geospatial assessment of the map and description provided in the application by the Tribunal’s Geospatial Services dated 11 February 2016 (geospatial report) and an IspatialView assessment undertaken by myself on 8 April 2016.

[6] In relation to QSNTS’ submission I note the following: when forming an opinion on whether it is appropriate to have regard to such information under s 190A(3)(c), I need to examine the content of the submission and consider the information against the requirements of the particular condition of the registration test to which it purports to speak 7. In relation to the ambit of what may be appropriate for me to have regard to, I am further guided by certain judgements of the Federal Court8 and quote relevant aspects of these decisions below.

3 under s 63 4 under s 190A(1) 5 in accordance with the provisions of s 190A 6 as required by s 190A(3)(a) 7 see Mansfield J in Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [19] 8 Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC), Strickland v Native Title Registrar [1999] FCA 1530 (Strickland), Western Australia v Strickland [2000] FCA 652 (Strickland FC) and Wiri People v Native Title Registrar [2008] FCA 574 (Wiri People)

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 2 Decided: 7 April 2016 [7] QSNTS, in summary, submits that the claim group description in Schedule A does not provide objective criteria to determine membership to the claim group. As such the requirements of s 190B(3)(b) are not met. Further, as the claim group description is not clear, it is not possible to determine if all of the people comprising the claim group have authorised the making of the application. QSNTS also submits that notice for the authorisation meeting was deficient. As such the requirements of s 190C(4)(b) are not met.

Section 190B(3) Is it appropriate for me to have regard to adverse information? [8] According to Mansfield J in Doepel the requirements of s 190B(3) do not appear to go beyond consideration of the terms of the application – at [16] and [51].

Decision

[9] Therefore, in my view, I cannot consider the information contained in the QSNTS submission when considering the application against the requirements of s 190B(3).

Section 190C(4)(b) Is it appropriate for me to have regard to adverse information? [10] The application considered by Mansfield J in Doepel was certified and therefore his Honour had to consider the provisions of s 190C(4)(a). Whilst not specifically addressing the question of what information the Registrar may have regard to when considering the requirements of s 190C(4)(b), Mansfield J observed that ‘[i]f s. 190C(4)(b) applies, s. 190C(5) imposes requirements which must appear from the application itself’ at— [16]. His Honour also relevantly states in relation to the two alternatives in s. 190C(4) — certification under subsection (4)(a) or authorisation under subsection (4)(b) - that

The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic. In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group. 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. The nature of the enquiry is discussed by French J in Strickland v NTR at 259 - 260, and approved by the Full Court in WA v Strickland at 51 - 52. Both Martin at [13] - [18], and Risk v National Native Title Tribunal [2000] FCA 1589 involved consideration of the condition imposed by s 190C(4)(b) — at [78]. [11] French J in Strickland at [57] found that subsections 190C(4) and 190C(5) do not confine the delegate to the statements in the application or in the prescribed accompanying s. 62(1)(a) affidavit when deciding whether s. 190C(4)(b) is satisfied: the delegate may have regard to other material provided by the applicant or otherwise available in relation to the authorisation of the applicant. This finding was approved on appeal to the Full Court in Strickland FC at [78].

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 3 Decided: 7 April 2016 Decision

[12] Based on the above, I am of the view that it is appropriate for me to have regard to the QSNTS submission in relation to the requirements of s. 190C(4)(b).

[13] The question that remains to be considered by me is how much reliance I place on the information contained in the submission. I refer to my discussion at s. 190C(4) below.

Procedural fairness steps [14] As I was of the preliminary view that the application could not be accepted for registration, there was no requirement to invite the State of Queensland to make submissions.

[15] The applicant was provided with a copy of QSNTS’ submission on 31 March 2016 and invited to make a response by 8 April 2016. A response was received on 4 April 2016. QSNTS was advised on 31 March 2016 that the delegate is of the view that procedural fairness is not owed to QSNTS and the applicant’s response was not provided to QSNTS. My consideration

[16] In my reasons for my decision I first test the application against the requirements under s 190C and then against the s 190B requirements. To assist the reader, in my assessment I have highlighted in grey the relevant Schedules and Attachments of the application which contain the information tested.

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 4 Decided: 7 April 2016 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.

[17] The application does not satisfy the conditions of s 190C(2), because it does not contain all of the details and other information and documents required by ss 61 and 62, as set out in the reasons below.

[18] 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)9.

[19] 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). 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.

[20] Below I consider 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) A person or persons authorised by all 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; or Note 1: The person or persons will be the applicant: see subsection (2) of this section.

9 Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] and also at [35] to [39]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 5 Decided: 7 April 2016 Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group. [21] The native title claim group is described in Schedule A.

[22] The Registrar’s role is ‘to consider whether the application sets out the native title claim group in the terms required by s 61... If the description of the native title claim group were to indicate that not all the persons in the native title claim group were included, or that it was in fact a sub-group of the native title claim group, then the relevant requirement of s 190C(2) would not be met and the Registrar should not accept the claim for registration’.10

[23] Given the way the native title claim group is described in Schedule A, it is not clear who is a member of the claim group. I will set out my reasons for this view in detail below when I assess the description as part of the merit conditions (s 190B(3) in the second part of these reasons. I merely note here that based on the description in Schedule A, it is not possible for me to determine whether all the persons in the native title claim group are included, or whether it is a sub-group of the native title claim group that brings this application.

[24] The application does not contain all details and other information required by s 61(1).

Name and address for service: s 61(3) [25] Names and address for service of the persons who are the applicant are provided in Part B.

[26] The application contains all details and other information required by s 61(3).

Native title claim group named/described: s 61(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons [27] This application does not name the persons in the claim group but it does contain a description of the persons in Schedule A. I note that it is not the delegate’s role to consider under this condition whether the description is ‘sufficiently clear’; merely that one is provided. As noted above, the sufficiency of the description is the task at the corresponding merit condition in s 190B(3)11.

[28] The application contains all details and other information required by s 61(4).

Affidavits in prescribed form: s 62(1)(a)

10 Doepel Mansfield J at [36] 11 Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala) at [31] and [32].

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 6 Decided: 7 April 2016 [29] The application is accompanied by the affidavits required by s 62(1)(a) from each person jointly comprising the applicant, namely Leslie John Harris Snr, Leslie John Harris Jnr, Katherine Litherland, Tom Gallifant, Francis Roe. Each of these affidavits is signed by the deponent and competently witnessed. I am satisfied that each of the affidavits sufficiently addresses the matters required by s 62(1)(a)(i)-(v).

[30] The application is accompanied by the affidavit required by s 62(1)(a).

Details required by s 62(1)(b) [31] Subsection 62(1)(b) requires that the application 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) [32] Schedule B refers to Attachment B, which sets out a description of the external boundary of the application area.

Map of external boundaries of the area: s 62(2)(b) [33] Schedule C refers to Attachment C, which contains a map showing the application area and its external boundaries.

Searches: s 62(2)(c) [34] Schedule D states that the applicant has not conducted any searches.

Description of native title rights and interests: s 62(2)(d) [35] Schedule E provides a description of the native title rights and interests claimed in relation to the particular land and waters covered by the application. The description does not consist only of a statement to the effect that the native title rights and interests are all the rights and interests that may exist, or that have not been extinguished, at law.

[36] I assess the adequacy of the description in the corresponding merit condition at s 190B(4) below.

Description of factual basis: s 62(2)(e) [37] In order to meet this requirement, it is not enough to merely recite the general or the three particular assertions in s 62(2)(e); what is required to meet the requirement of s 62(2)(e) is a ‘general description’ of the factual basis for the three particular assertions.12

[38] Schedule F sets out a description of the factual basis for the assertions set out in s 62(2)(e) and also refers to Attachments F1 and F2. The description does more than recite the particular

12 Queensland v Hutchinson (2001) 108 FCR 575; [2001] FCA 416 at [25]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 7 Decided: 7 April 2016 assertions and in my view, meets the requirements of a general description of the factual basis for the assertions identified in this section.

[39] I assess the adequacy of the description in the corresponding merit condition at s 190B(5) below.

Activities: s 62(2)(f) [40] Schedule G sets out details of activities currently carried out by the claim group in relation to the area claimed.

Other applications: s 62(2)(g) [41] Schedule H states that the application is overlapped by the Wangkumara Peoples Native Title Claim, WUD52/2008, QC2008/003. This is confirmed by the geospatial report (I note that the spelling of the claim group’ name as it appears on the claimant application is Wongkumara People).

Section 24MD(6B)(c) notices: s 62(2)(ga) [42] Schedule HA states that the applicant is not aware of any notifications given under s 24MD(6B)(c).

Section 29 notices: s 62(2)(h) [43] Schedule I states that the applicant is not aware of any notifications given under s 29.

Conclusion [44] The application contains the details specified in ss 62(2)(a) to (h), and therefore contains all details and other information required by s 62(1)(b).

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.

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 8 Decided: 7 April 2016 [45] The requirement that the Registrar be satisfied in the terms set out in s 190C(3) is only triggered if all three of the conditions found in ss 190C(3)(a), (b) and (c) are satisfied.13

[46] As noted above, the claim area is in part covered by the Wongkumara People’s claimant application which has been entered on the Register of Native Title Claims on 12 April 2008 and this entry has not been removed since. As such the three conditions found in s 190C(3) are satisfied. Next, I am to determine whether there are persons included in the Palpamudramudra Yandrawandra People’s claim who are also members of the Wongkumara People’s claim.

[47] As noted above, the claim group description in Schedule A does not allow me to ascertain who is a member of the claim group (as also noted above, I will outline my reasons for this view below at my assessment at s 190C(3)). I am therefore unable to determine whether there are common members for the two applications.

[48] The application does not satisfy the condition of s 190C(3).

Subsection 190C(4) Authorisation/certification Under s 190C(4) the Registrar/delegate must be satisfied that either: (a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

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

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.

[49] My consideration of this requirement is governed by s 190C(4)(b) as the application has not been certified by the representative body for the application area, QSNTS.

13 see Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC)—at [9]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 9 Decided: 7 April 2016 [50] Section 190C(4)(b) requires that the Registrar must be satisfied that:

 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.

[51] Section 190C(5) adds that the Registrar can only be satisfied that the condition in s 190C(4) has been met in circumstances where an application has not been certified, if the application:

 includes a statement to the effect that the requirement set out in paragraph (4)(b) of s 190C has been met; and  briefly sets out the grounds on which the Registrar should consider that it has been met.

Are the requirements of s 190C(5) met?

[52] In order to meet this requirement, a statement has to be included in the application (generally this is done at page 1 of the application form under the heading of ‘Authorisation’ or in Schedule R) 14 to the effect that the following requirements have been met and also a brief outline of the grounds on which the Registrar should consider that that the requirements have been met:  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 (i.e. the statement found in s 190C(4)(b)).

[53] The application does not contain a statement that the applicant is a member of the native title claim group. Page 1 of the application sets out the statement that the applicant has been authorised by the members of the claim group. The application briefly sets out the grounds on which the Registrar should consider that the authorisation requirements have been met.

[54] The requirements of s. 190C(5) have therefore not been met.

Are the requirements of s 190C(4)(b) met?

[55] Although I have found that the requirements of s 190C(5) have not been met and as such it is not possible for the application to meet the requirements of s 190C(4), for completeness’ sake and to assistant the applicant who may wish to amend the application, I do address the requirements of s 190C(4)(b) below.

Is the applicant a member of the native title claim group?

14 See Native Title claimant applications – A guide to understanding the requirements of the registration test at page 40.

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 10 Decided: 7 April 2016 [56] Firstly, the applicant is required to be a member of the native title claim group (note: while s 190B(5) requires the application to contain a statement claiming that this is the case, s 190B(4) requires information that shows that this is the case). Mr Harris Snr and Mr Harris Jnr state in their additional affidavits, which are attached to the application as Attachments F1 and F2, that they are Palpamudramudra men, however, the application does not contain similar statements for the remaining persons who make up the applicant. As the claim group description, as noted above, is not sufficient to identify claim group members, I am unable to ascertain, by looking at the description, whether Katherine Litherland, Tom Gallifant and Francis Roe are members of the claim group. I do, however, understand from the meeting minutes (Annexure LJH-3 to Attachment R), that Katherine Litherland and Francis Roe represent family groups who attended the authorisation meeting of the Palpamudramudra People. The minutes also mention Tom Gallifant as an apology, noting under the same heading that the ‘Flash and Murray family members confirmed they had been notified but could not attend the meeting’. If the application were to be amended, the applicant may wish to consider stating clearly in the application (e.g. Schedule R) that the persons comprising the applicant are members of the claim group due to their descent from an apical ancestor of the group and provide information in support of this statement.

Is the applicant authorised to make and deal with the application?

[57] Secondly, the applicant is required to be authorised to make the applicant and deal with it. The term ‘authorise’ as used in s 190C(4)(b) is defined in s 251B. That is, an applicant’s authority from the rest of the native title claim group to make the application and deal with related matters must be given in one of two ways:

 in accordance with a process of decision-making that must be complied with under the traditional laws and customs of the persons in the native title claim group; or  where there is no such process, by a process agreed to and adopted by the group.

[58] The test under s 190C(4)(b) requires me to ascertain from the material before me whether the claim group has a mandated traditional decision-making process and if this is the case, whether this mandated process was followed. If there is no mandated process that must be complied with, then I must consider whether the persons in the native title claim group agreed to and adopted a decision-making process and that they then followed it in authorising the applicant.

[59] The applicant in their respective affidavits state that ‘there is no relevant traditional decision-making process in relation to authorizing things of this kind’ and that attendees at the meeting agreed to and adopted a decision-making process. This process is described in the meeting minutes as follows:

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 11 Decided: 7 April 2016  Each Palpamudramudra person present at the meeting over the age of 18 has a right to vote upon any resolution that is considered in relation to this claim;  Voting will be by a show of hands; and  Resolutions will be passed if they are agreed by a majority of those Palpamudramudra People present and voting.

[60] In their affidavits, the persons who make up the applicant state that the decision to authorise the applicant was made following this process ‘on the basis of a unanimous resolution’.

[61] On the basis of the above information I accept that the attendees at the meeting agreed to and adopted a decision-making process and this process was followed in relation to the decision to authorise the making of this application.

[62] I am further required to ascertain whether the applicant has been authorised by the native title claim group. As noted above, due to the insufficient description of the claim group, I cannot determine the membership of the group. Therefore it is not possible for me to assess whether those who have been invited to the authorisation meeting and those who attended constitute the native title claim group. It follows that I cannot determine whether the persons comprising the applicant have received their authority from the members of the native title claim group or a sub- group of that group. If the latter were the case, the application could not be accepted for registration.15

[63] For the above reasons I cannot find that the authorisation requirements in s 190B(4)(b) have been met. I note that my finding corresponds with QSNTS’ submission.

[64] For the applicant’s benefit, I now address whether the notification process itself was sufficient in this matter. I note that I am not required to do so (given my finding above) and that my further assessment cannot change this finding that the requirements of s 190B(4)(b) have not been met. The further assessment is undertaken to assist the applicant who may wish to amend this application at a later stage. The assessment should be read with the comments about the insufficiency of claim group description in mind.

15 I refer to O’Loughlin J in Risk at [60] where he said that a native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group. Justice O’Loughlin in Risk went on to say at [60] that it is incumbent on the delegate to be satisfied that the claimants truly constitute such a group, and the applicant should be seen to be authorised by all persons who relevantly hold the common or group rights (cf s61 (1)). And finally at [60] Justice O’Loughlin said that where the group named or described in the application is not the native title claim group defined in s61 (1) but a part only of the group it becomes impossible to accept the application for registration.

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 12 Decided: 7 April 2016 [65] Notification of an authorisation meeting must be given to all members of the native title claim group and clearly indicate the nature of the business to be conducted.

Statements in Schedule R

[66] Schedule R notes that ‘the applicant group is widely spread but well connected with regular Facebook group discussions and all members within the region were aware of the application and the map of the area claimed’. This statement requires clarification. Is it the applicant (i.e. the five persons named on the application) which is widely spread or the members of the claim group? What is meant by ‘members of the region’? Were they aware of the meeting that was called in relation to the proposed native title claim or the fact that a claim has been made? Schedule R further states that ‘eleven members representing a broad cross section of the family groups’ attended the authorisation meeting. Without information about the membership of the native title group it is not possible to ascertain whether these eleven persons in fact constituted a representative and/or broad representation of the family groups that make up the claim group.

Statements in affidavit of Leslie John Harris Jnr

[67] Schedule R refers to the above affidavit for information about the notification of the authorisation meeting. In his affidavit Mr Harris Jnr states that he was ‘instrumental in setting up a Palpamudramudra native title claim group via a Facebook page and we have approximately 60 members’. From this I understand that the native title claim group consists of about 60 persons, 11 of which attended the authorisation meeting. Mr Harris Jnr further states that he was unsuccessful in obtaining funding from QSNTS and South Australian Native Title Services (SANTS) to assist with the authorisation and lodgment of the claim. As a result, a notice of the authorisation meeting could not be published in the Koorie Mail, as was his intention. Meeting notices (and a copy of the Facebook site and Palpamudramudra Facebook group link in some instances) to a large number of organisations, websites and persons:

 All councils and shires in regional Queensland and South Australia  QSNTS’ principal legal officer and administration team  SANTS’ principal legal officer, administration and other legal officers  All Kidman & Co email addresses listed on Kidman website, including Durham Downs Station, Nappa Merrie Station, Innamincka Station, Woomanooka outstation, Durrie Station  Senex Energy, Beach Energy and Santos representatives  A number of Tribunal and Office of the Registrar of Indigenous Corporations representatives  Innamincka Pub and Birdsville Hotel with the request to post the notice on the public notice board  Adelaide City Council  Parry Agius, Senior Aboriginal Cultural Mentor, Nunkuwarrin Yunti of South Australia Inc

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 13 Decided: 7 April 2016  Posted on his LinkedIn profile and publicly shared and linked with QSNTS, NNTT, Beach Energy, Santos Limited, Native Title Australia  Posted in public Aboriginal group on Facebook which has 14,484 members and on the Palpamudramudra Facebook page

[68] Personal notices were also sent/emailed to 33 Palpamudramudra persons, Wonkamarra Peoples and legal representatives, Jeffery Booth and the applicant for the Boontamurra native title claimant group, Natural Resources SA Arid Lands representative at Innamincka, Kim McCall, who provides expertise in anthropology, linguistics and mediation and Australian Heritage Service.

[69] In relation to his notification efforts Mr Harris Jnr states that ‘I do not believe that there was any person who has any interest in native title in the area was unaware of the meeting and the outcome of the meeting was also widely publicised on Facebook and Facebook Groups to Wongkumara and Palpamudramudra People’.

[70] In my view, the notification efforts were extensive. I doubt, however, that all of the notices sent out achieved its purpose of making Palpamudramudra People/those who hold or may hold native title in the proposed claim area, aware of the meeting. For example a notices received by the Tribunal generally does not get forwarded to potential native title holders or published for their benefit. Despite this, I am of the view that sufficient public notice was given to all persons who may hold native title in the claim area. Without information about the membership of the native title group it is not possible to ascertain whether sufficient personal notice was given to members of the claim group.

[71] In relation to the content of the meeting notice I note that it invites ‘all persons who hold or may hold native title’ in the area depicted in the notice to attend the meeting which is described as a ‘Palpamudramudra Native Title Claim Group Authorisation Meeting & Community Meeting’. The purpose of the meeting is described in two paragraphs: first ‘to authorise the filing of a new Native Title Determination Application as depicted in the above map’. This purpose is clear. However, the second purpose, in my view, is confusing: ‘certification of an application for a new electronic Determination above pursuant to Section 251(B) and Section 283(B)(e) of the Native Title Act of the 1993 (Commonwealth)’. A s 283(B)(e) does not exist in the Native Title Act 1993. The meaning of this statement is not clear to me. Having said that, in my view its inclusion in the notice is not fatal. It is clear from the notice that it calls for an authorisation meeting for a claim. Any confusion by the reader of the notice could have easily been addressed by contacting Mr Harris Jnr whose contact details were set out in the notice. In my view, the fact that the membership of the Palpamudramudra native title claim group is not described in the notice is also not fatal as the notice invites persons who hold or may hold native title in a specified area. In

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 14 Decided: 7 April 2016 my view, the notice fully informed persons entitled to attend the meeting of its purpose so that they could make an informed decision whether or not to attend.16

[72] For the above reasons I do not agree with QSNTS’ submission that the notice was deficient. I note in particular in response to the submission that no Wongkumara claim group member attended the meeting, that this is not supported by the minutes of the meeting which lists the names of four persons who are said to be Wangkumara People representatives and their solicitor. Under the heading ‘2 Wangkumara’ details of representatives of the Wangkumara People addressing the meeting and of a discussion with Palpamudramudra meeting attendees are set out.

[73] In summary, in my view, the requirements f s 190B(4)(b) are not met for the reasons set out above.

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.

[74] The information required to meet this requirement is:

 Information, whether by physical description or otherwise, that enables the boundaries of the areas covered by the application to be identified and a map showing those boundaries – ss 62(1)(a)(i) and 62(2)(b);  Information, whether by physical description or otherwise, that enables any areas not covered by the application to be identified – ss 62(1)(a)(ii);

Boundaries of the areas covered by the application and a map

[75] Schedule B refers to Attachment B which provides a description of the external boundary of the claim area. Schedule C refers to Attachment C which is a map depicting the boundary. The geospatial report which provides an analysis of the description and map, and advises whether the application area has been described with reasonable certainty, notes the following:

Description Schedule B refers to Attachment B. Attachment B contains a written description prepared by the National Native Title

16 See Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 15 Decided: 7 April 2016 Tribunal, dated 24 July 2014 that describes the external boundary of the application area and includes a metes and bounds description referencing the South Australian, Queensland and New South Wales borders, topographic features, Local Government Authority boundary, existing native title determination application boundaries and coordinate points referenced to the Geodetic Datum of Australian 1994 (GDA94) shown to six (6) decimal places.

Schedule B lists no general exclusions.

Map Schedule C refers to Attachment C. Attachment C is an A3 colour map, prepared by the National Native Title Tribunal, titled ‘Palpamudramudra’, prepared on 24 July 2014 and includes:  The application area as a bold blue outline;  Various native title determination applications as coloured outlines and labelled;  Grey scale topographic raster image;  Scalebar, northpoint, coordinate grid; locality diagram and legend; and  Notes relating to the source, currency and datum of data used to prepare the map.

Assessment The description and map are consistent and identify the application area with reasonable certainty.

[76] Having regard to the identification of the claim area in Attachment B and the map at Schedule C, I am satisfied that the application area has been described such that the location of it on the earth’s surface can be identified with reasonable certainty. As such the requirements of ss 62(1)(a)(i) and 62(2)(b) are met.

Areas not covered by the application

[77] The application does not contain a specific nor a generic description of areas not covered by the application17. As such the requirement of s 62(1)(a)(ii) is not met.

[78] For the above reasons the application does not satisfy 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.

17 See Native Title claimant applications – A guide to understanding the requirements of the registration test at page 18.

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 16 Decided: 7 April 2016 [79] Schedule A sets out a description of the persons in the native title claim group:

The Native Title Claim group comprises those Aboriginal People who both self-identify as Palpamudramudra and are recognised as being Palpamudramudra by other Palpamudramudra people based on:

1. Filiation, including by adoption, from an Palpamudramudra parent or grandparent; and who satisfy one or more of the following criteria: (a) Being raised in Palpamudramudra country and being bound by its system of law and custom; (b) Living and behaving appropriately with Palpamudramudra people in accordance with Palpamudramudra laws and customs; (c) Having knowledge of Palpamudramudra country and its stories and taking appropriate responsibility, under Palpamudramudra custom and law, for that knowledge; (d) Having knowledge of Palpamudramudra society and the relationships of people within it and seeking to maintain proper relationships amongst Palpamudramudra people, (e) Having knowledge of Palpamudramudra language; (f) Displaying an active interest and engagement in Palpamudramudra affairs.

[80] Pursuant to subsection 190B(3)(b) I must be satisfied that the description is sufficiently clear so that it can be ascertained whether any particular person is in the native title claim group.

[81] As noted above, according to Mansfield J in Doepel the requirements of s 190B(3) do not appear to go beyond consideration of the terms of the application. Therefore I cannot take into consideration the list of Palpamduramudra apical ancestors received by the applicant’s representative on 4 April 2016. As noted by the applicant’s representative in the covering email, he proposes to amend the application to add the list as an appendix to Schedule A.

[82] I have already noted above that I am of the view that the claim group description in the application is not sufficiently clear. Below I set out my reasons for this view.

[83] In considering the operation of s 190B(3)(b) in Doepel, Mansfield J stated that the section’s focus is not upon the correctness of the description of the native title claim group, but upon its adequacy so that the membership of any particular person in the identified native title claim group can be ascertained—at [37].

[84] Further, Carr J in State of Western Australia v Native Title Registrar (1999) 95 FCR 93 found, in the way native title claim groups were described, that ‘it may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently’—at [67].

[85] The description of the native title claim group in Schedule A relies on both self- identification and recognition by other Palpamudramudra people based on filiation, including by adoption, from a Palpamudramudra parent or grandparent. Further, membership of the claim

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 17 Decided: 7 April 2016 group also requires the satisfaction of at least one of the six criteria described in Schedule A at (a) to (f).

[86] The description does not include information about the parent or grandparent referred to in the description. Without such an external reference point it is not possible to ascertain whether a person fulfils the first principle of filiation from a Palpamudramudra parent/grandparent. As a consequence it is not possible to ascertain whether a person is a member of the claim group by conducting a factual inquiry.

[87] I also note that it is not clear to me, based on the description contained in Schedule A, why the application is brought on behalf of the Palpamudramudra Yandrawandra People. No reference is made to Yandrawandra in the description.

[88] For the above reasons I am of the view that the native title claim group is not described sufficiently clearly to enable identification of any particular person in that group.

[89] The application does not satisfy the condition of s 190B(3).

Subsection 190B(4) Native title rights and interests identifiable The Registrar must be satisfied that the description contained in the application as required by s 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

[90] Section 62(2)(d) provides that the application must contain:

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.

[91] The description of the claimed rights is found in Schedules E:

1. The nature and extent of the native title rights claimed and interests in relation to the Claim Area are nonexclusive rights to use and enjoy in accordance with the native title holders' traditional laws and customs the land and waters of the Claim Area, being: (a) the right access and move about the Claim Area; (b) the right to live, to camp and, for the purpose of exercising their native title rights and interests, to erect shelters and other structures on the Claim Area; (c) the right to hunt and fish on the land and waters of the Claim Area; (d) the right to gather and use the natural resources of the Claim Area such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers, but excluding those resources referred to in Paragraph 12; (e) the right to share and exchange the subsistence and other traditional resources of the Claim Area;

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 18 Decided: 7 April 2016 (f) the right to use the natural water resources of the Claim Area; (g) the right to cook on the Claim Area and to light fires for domestic purposes but not for the clearance of vegetation; (i) the right to conduct ceremonies and hold meetings on the Claim Area; (j) the right to teach on the Claim Area the physical and spiritual attributes of locations and sites within the Claim Area; (k) the right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Claim Area; and (l) the right to be accompanied on to the Claim Area by those people who, though not Native Title Holders, are: (i) spouses of native title holders, or (ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Claim Area or; (iii) people who have rights in relation to the Claim Area according to the traditional laws and customs acknowledged by the native title holders. 2. The native title rights and interest claimed are also subject to the effect of:- (a) all existing non native title rights and interests; (b) all laws of Queensland and the Commonwealth of Australia; (c) valid interest conferred under those laws.

[92] To meet s 190B(4), the Registrar ‘must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the claimed native title rights and interests to be readily identified’. The question for this condition is whether the claimed rights are described clearly, comprehensively and in a way that is meaningful and understandable, having regard to the definition of the term ‘native title rights and interests’ in s 223.18

[93] Subject to my comments below regarding the right described in paragraph 1(d), I am of the view that the description in Schedule E is sufficient to allow the native title rights and interests claimed to be readily identified. The claimed rights have been clearly and comprehensively described in a way that does not infringe s 62(2)(d). Further, the description is meaningful and understandable, having regard to the definition of the expression ‘native title rights and interests’ in s 223. Whether I consider that the claimed rights can be established prima facie is the task at s 190B(6), discussed below.

[94] However, this requirement of the registration test is not met, as the right described in paragraph 1(d) is not sufficiently clear. The description refers to ‘Paragraph 12’ which is said to contain information about resources that are excluded from those claimed in paragraph 1(d). The application does not contain a paragraph 12 and it is therefore not clear which resources are excluded.

[95] For the above reason the application does not satisfy the condition of s 190B(4).

18 Northern Territory v Doepel at [99] and [123]. See also page 22 of

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 19 Decided: 7 April 2016 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 interest, and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

[96] The Registrar must be satisfied that a sufficient factual basis is provided to support the assertion that the claimed native title rights and interests exist19. The material also needs to support the particular assertions in paragraphs (a) to (c) of s 190B(5)20. In the consideration of the quality of the factual basis, the Registrar is guided by the following principles21:

 traditional laws and customs are those that a society passes on from one generation to another;  laws and customs arise out of, and go to define, a particular society, that is a body of persons united in, and by, its acknowledgement and observance of a body of laws and customs;  traditional laws or customs are derived from a normative system that existed before sovereignty;  rights and interests are rooted in pre-sovereignty traditional laws and customs; and  it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout the period since sovereignty was asserted as a body united by its acknowledgement and observance of the laws and customs. [97] The applicant has provided the following factual basis material:

 Schedule F, which contains a general description of the factual basis;  Attachment F1, an affidavit by Leslie John Harris Snr and Attachment F2, an affidavit by Leslie John Harris Jnr, both attesting to their activities in the claim area; and

19 See Native Title claimant applications – A guide to understanding the requirements of the registration test at page 27 20 In Doepel, Mansfield J states that ‘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]. 21 The principles are outlined in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; (2002) 194 ALR 538; [2002] HCA 58 (Yorta Yorta); Later Court decisions have supported these principles as guiding the Registrar’s consideration of the factual basis of a native title determination application: Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007)—at [26]; Full Court in Gudjala # 2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC) and Gudjala #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009).

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 20 Decided: 7 April 2016  Additional material provided to the delegate directly consisting of a large number of documents and family records with ‘areas of importance’ highlighted.

[98] The additional material consists of historical documents which the applicant’s representative says he has collated ‘to support my old peoples verbal history and connection to lands and waterholes for our QLD claim’. Whilst of significant historical value to the members of the claim group, in its current form the material is of limited value in the context of the application of the registration test. I further note that some of the material is illegible, and the context in which it is to be read or understood is not made clear. Other than through the title of the documents and some highlighted passages, the applicant has not directed my consideration of the material. In my view, it is not for me to make interpretations about or to collate and draw definitive conclusions from this kind of primary sources material which has been provided to me. In my view, it is also not the Registrar or delegate’s role to work through the provided material and ascertain which of the three assertions in s 190B(5) it addresses. In my view, I am constrained by the provided material’s lack of context and coherence and by the fact that the applicant has not directed me to its relevance to the asserted factual basis. As such the material simply is not capable of formulating a sufficient factual basis to support the assertions at ss 190B(5)(a)—(c).

[99] I note that the applicant’s representative, in its covering emails under which the additional material was provided, noted that he holds further information and documentation including video recordings which could be provided in support of the application. The applicant was advised that audio visual material is rarely useful to meet the requirements of the registration test as it is not for the delegate to make interpretations of such material.

Reasons for s 190B(5)(a) [100] In order to meet the conditions of s190B(5)(a) the factual basis material must demonstrate that the claim group as a whole presently has an association with the claim area, although it is not a requirement that all members must have such an association at all times and that there has been an association between the predecessors of the whole group and the area over the period since sovereignty22.

[101] The issues raised above about the claim group description also affect this requirement. Without a sufficient description that allows to identify the members of the claim group, it is not possible to determine whether the claim group as a whole has an association with the claim area.

[102] In addition I note that Schedule F makes some general statements about the predecessors’ association and association of the current claim group members with the claim area, however, does not make specific reference to the area of this claim. In order to meet the requirements of s 190B(5)(a) the factual basis ‘must be in sufficient detail to enable a genuine assessment of the

22 Gudjala at [52]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 21 Decided: 7 April 2016 application by the Registrar... and be something more than assertions at a high level of generality’23.

[103] The affidavit of Leslie John Harris Snr provides some limited information about the location of Palpamudramudra sacred sites referring to Nappamerrie, Barrioolah, Durham Downs, Arrabury and Oontoo Stations. He also lists the birthplace of some of his ancestors. He makes general, non-location specific statements about visiting ‘our lands and waterholes;’. While addressing the requirement of s 190B(5)(a) to a degree, in my view the information is not sufficient to demonstrate that the claim group as a whole presently has an association with the claim area, and that there has been an association between the predecessors of the whole group and the area over the period since sovereignty or at least first contact. In other words, what is lacking is location specific information about the association of other members of the claim group with the claim area, current and at sovereignty/first contact, as well as information that shows that the association has continued through each generation of Palpamudramudra People from at least the time of first contact right up until the present. (Should the application be amended, it might assist the delegate to have a map that shows relevant locations and station boundaries. The Geospatial Unit may be able to assist with the production of such a map upon request.)

[104] The same is true for Leslie John Harris Jnr’s affidavit. Attachment LJH-1 to his affidavit provides relevant information about Jimmy Nappa Merrie and his descendants. I understand that he is one of the Palpamudramudra People’s ancestors. From the attachment I understand that Jimmy Nappa Merrie was born in Barrioolah (which I understand to be located within the claim area though this is not entirely clear from the map attached to the application in Attachment C) in 1859 and died in Tibooburra in New South Wales in 1942. Jimmy Nappa Merrie was married to Alice King, who was born in 1862 in Barrioolah. She died in 1941 (location unknown). The attachment goes on to provide details about these two ancestors as well as their descendants, spanning seven generations. From the information I understand that the descendants of these ancestors continued an association to the claim area.

[105] I can see from the list of apical ancestors which the applicant’s representative provided to the Registrar directly on 4 April 2016, that Jimmy Nappa Merrie and Alice King are only one of a larger number of ancestors for the claim group. Further information would need to be provided in relation to at least some of these other ancestors and their association with the claim area as well as the association of their descendents since contact. I refer to my comments above regarding what information is required in support of the assertion in s 190B(5)(a). I further note that it is not entirely clear from the application when first contact occurred in the claim area. It is therefore not clear whether it asserted that Jimmy Nappa Merrie and Alice King are said to have had an association with the claim area at the time of first European contact.

Reasons for s 190B(5)(b)

23 Gudjala FC at [92]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 22 Decided: 7 April 2016 [106] The Registrar must be satisfied that the factual basis is sufficient to support the assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group that give rise to the claim to native title rights and interests. In my view this assertion must be understood in light of the High Court’s findings in Yorta Yorta.24

[107] In particular, Dowsett J in Gudjala25 characterised the requisite asserted facts in support of the condition in s 190B(5)(b) as follows:

That the laws and customs currently observed have their source in a pre-sovereignty society and have been observed since that time by a continuing society—at [63]; That there existed at the time of European settlement a society of people living according to a system of identifiable laws and customs, having a normative content—at [65], [66] and [81]; That there is an explanation of the link between the claim group described in the application and the area covered by the application. In the case of a claim group described by reference to apical ancestors this may involve identifying some link between the apical ancestors and any society existing at sovereignty, even if the link arose at a later stage—[66] and [81]. [108] The information before me does not address the above other than by broad statements which are not sufficient to meet this requirement.

Reasons for s 190B(5)(c) [109] The Registrar must be satisfied that the factual basis is sufficient to support the assertion that the native title claim group has continued to hold the claimed native title rights and interests by acknowledging and observing the traditional laws and customs of a pre-sovereignty society in a substantially uninterrupted way. This is the second element to the meaning of ‘traditional’ when it is used to describe the traditional laws and customs acknowledged and observed by Indigenous peoples as giving rise to claimed native title rights and interests26.

[110] Dowsett J in Gudjala 2007 indicates that this particular assertion may require the following kinds of information:

24 The High Court in Yorta Yorta held that ‘[a] traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, “traditional” carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are “traditional” laws and customs. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist’—at [46]-[47]. 25 This approach was not criticised or overturned by the Full Court in Gudjala # 2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC) 26 see Yorta Yorta at [47] and [87]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 23 Decided: 7 April 2016  that there was a society that existed at sovereignty that observed traditional laws and customs from which the identified existing laws and customs were derived and were traditionally passed on to the current claim group;

 that there has been a continuity in the observance of traditional law and custom going back to sovereignty or at least to European settlement—at [82].

[111] The Full Court in Gudjala FC agreed that the factual basis must identify the existence of an indigenous society observing identifiable laws and customs at the time of European settlement in the application area—at [96].

[112] The information does not sufficiently address the above.

Conclusion

[113] The application does not satisfy the condition of s 190B(5) because the factual basis provided is not sufficient to support each of the particularised assertions in s 190B(5).

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

[114] To meet the requirements of s 190B(6) only one of the native title rights and interests claimed needs to be established prima facie. Only established rights will be entered on the Register—see s 186(1)(g) and the note to s 190B(6).

[115] In relation to the consideration of an application under s 190B(6), I note Mansfield J’s comment in Doepel:

Section 190B(6) requires some measure of the material available in support of the claim—at [126]. On the other hand, s 190B(5) directs attention to the factual basis on which it is asserted that the native title rights and interests are claimed. It does not itself require some weighing of that factual assertion. That is the task required by s 190B(6)—at [127]. Section 190B(6) appears to impose a more onerous test to be applied to the individual rights and interests claimed—at [132].

[116] The definition of ‘native title rights and interests’ in s 223(1) guides my consideration of whether, prima facie, an individual right and interest can be established. In particular I take account of the interpretation of this section in:

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 24 Decided: 7 April 2016  Yorta Yorta (see s 190B(5) above) in relation to what it means for rights and interests to be possessed under the traditional laws acknowledged and the traditional customs observed by the native title claim group; and

 The High Court’s decision in Western Australia v Ward (2002) 213 CLR 1 [2002] HCA 28 (Ward HC) that a ‘native title right and interest’ must be ‘in relation to land or waters’.

[117] I also need to consider the case law relating to extinguishment when examining the right and interest claimed. Rights that clearly fall prima facie outside the scope of the definition of ‘native title rights and interests’ in s 223(1) cannot be established. In my consideration, I take into account information contained in the application on activities conducted by the claim group. While current activities by claimants on the claim area, which are said to be in exercise of the claimed native title rights and interests, are not determinative of the existence of a right and interest, they can be supportive of it.

Consideration [118] Relevant information about the claimed native title rights and the factual basis of their existence is set out in Schedules E, F and G of the application and the additional affidavits.

[119] I note that I am unable to determine whether, prima facie, at least some of the native title rights and interests claimed in the application can be established under s 190B(6), in the absence of a sufficient factual basis on which it is asserted that the native title rights and interests claimed exist.

[120] I further note that the examination of each right and interest involves consideration of the factual basis material to ascertain if it prima facie supports the existence of the claimed rights and interests under the traditional laws and customs acknowledged and observed by the native title claim group. The material currently before me provides very little information that can be said to prima facie support the existence of any of the rights or interests claimed in the application. It is fundamental to consideration of this condition that there is sufficient information that illustrates the native title claim group’s continuing practice and possession of the native title rights and interests it claims in the application under their traditional laws and customs.

[121] The application does not satisfy the condition of s 190B(6).

Subsection 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group: (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:

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 25 Decided: 7 April 2016 (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.

[122] Under s 190B(7), I must be satisfied that at least one member of the native title claim group currently has, or previously had, a traditional physical connection with any part of the land or waters covered by the application. I take ‘traditional physical connection’ to mean a physical connection in accordance with the particular laws and customs relevant to the claim group, being ‘traditional’ in the sense discussed in Yorta Yorta.

[123] In the absence of a sufficient factual basis on which it is asserted that the native title rights and interests claimed exist, I am unable to determine whether at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the application area under s 190B(7).

[124] The application does not satisfy the condition of s 190B(7).

Subsection 190B(8) No failure to comply with s 61A The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made. Section 61A provides: (1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title. (2) If: (a) a previous exclusive possession act (see s 23B) was done in relation to an area; 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 provision 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 in relation to an area; 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 provision 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 claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others. (4) However, subsection (2) or (3) does not apply to an application if: (a) the only previous exclusive possession act or previous non-exclusive possession act concerned 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

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 26 Decided: 7 April 2016 (b) the application states that section 47, 47A or 47B, as the case may be, applies to it.

[125] In the reasons below, I look at each part of s 61A against what is contained in the application and accompanying documents and in any other information before me as to whether the application should not have been made.

Section 61A(1)

[126] 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) because the geospatial report reveals that there are no approved determinations of native title over the application area.

Section 61A(2)

[127] 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 offend the provisions of s 61A(2) because the application does not exclude from the application area any areas covered by previous exclusive possession acts as defined in s 23B.

Section 61A(3)

[128] Section 61A(3) provides that an application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where a previous non-exclusive possession act was done, unless the circumstances described in s 61A(4) apply. In my view, the application does not offend the provisions of s 61A(3) because Schedule E makes it clear that no claim for exclusive possession is made.

Conclusion

[129] In my view the application does offend the provision of s 61A(2) and therefore the application does not satisfy the condition of s 190B(8).

Subsection 190B(9) No extinguishment etc. of claimed native title The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that: (a) a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or (b) the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 27 Decided: 7 April 2016 (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.

[130] I consider each of the subconditions of s 190B(9) in my reasons below.

Section 190B(9)(a)

[131] The application at Schedule Q states that the application does not make any claim to ownership of minerals, petroleum or gas wholly owned by the Crown.

Section 190B(9)(b)

[132] The application at Schedule P states that this requirement is ‘not applicable’. I understand this to mean that the application does not make any claim to an offshore place. This is confirmed by the geospatial report.

Section 190B(9)(c)

[133] There is no information in the application or otherwise to indicate that any native title rights and/or interests in the application area have been extinguished.

Conclusion

[134] In my view the application does not offend the provisions of ss 190B(9)(a), (b) and (c) and therefore the application meets the condition of s 190B(9).

[End of reasons]

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 28 Decided: 7 April 2016 Summary of registration test result

Application name Palpamudramudra Yandrawandra People

NNTT file no. QC2016/002

Federal Court of Australia file no. QUD106/2016

Date of registration test decision 7 April 2016

Section 190C conditions

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

Not met

re s 61(1) Not 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

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

Not met

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 29 Decided: 7 April 2016 Test condition Subcondition/requirement Result

s 190C(4)(a) NA

s 190C(4)(b) Not met

Section 190B conditions

Test condition Subcondition/requirement Result s 190B(2) Not met s 190B(3) Overall result:

Not met

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

s 190B(3)(b) Not met s 190B(4) Not met s 190B(5) Aggregate result:

Not met

re s 190B(5)(a) Not met

re s 190B(5)(b) Not met

re s 190B(5)(c) Not met s 190B(6) Not met s 190B(7)(a) or (b) Not met s 190B(8) Aggregate result:

Not met

re s 61A(1) Met

re s 61A(2) and (4) Not met

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: QC 2016/002 Palpamudramudra Yandrawandra People Page 30 Decided: 7 April 2016

Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 31 Decided: 7 April 2016