Edited Reasons Registration test decision
Application name Widi People of the Nebo Estate
Name of applicant Eileen Beryl Pegler, Paul Royce Butterworth, Lorraine Joyce McLennan, Ronald Jock Watson, Kenneth Stewuart Peters Dodd, Graham Ian Sauney, Oswald Alfred Skeen, Athol Noel Goltz, Linda Wailu (nee Budby) and Marilyn Joyce Elizabeth Duncan
State/territory/region Queensland
NNTT file no. QC2013/006
Federal Court of Australia file no. QUD492/2013
Date application made 29 July 2013
Name of delegate Nadja Mack
I have considered this claim for registration against each of the conditions contained in ss. 190B and 190C of the Native Title Act 1993 (Cwlth). For the reasons attached, I do accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth).
Date of decision: 13 March 2014
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Nadja Mack Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cwlth) under an instrument of delegation dated 30 July 2013 and made pursuant to s. 99 of the Act. Reasons for decision Table of contents Introduction ...... 3 Application overview...... 3 Registration test ...... 3 Information considered when making the decision ...... 3 Procedural fairness steps ...... 8 Procedural and other conditions: s. 190C ...... 10 Subsection 190C(2) Information etc. required by ss. 61 and 62 ...... 10 Native title claim group: s. 61(1) ...... 10 Name and address for service: s. 61(3) ...... 11 Native title claim group named/described: s. 61(4) ...... 11 Affidavits in prescribed form: s. 62(1)(a) ...... 11 Application contains details required by s. 62(2): s. 62(1)(b) ...... 11 Information about the boundaries of the area: s. 62(2)(a) ...... 12 Map of external boundaries of the area: s. 62(2)(b) ...... 12 Searches: s. 62(2)(c) ...... 12 Description of native title rights and interests: s. 62(2)(d) ...... 12 Description of factual basis: s. 62(2)(e) ...... 12 Activities: s. 62(2)(f) ...... 13 Other applications: s. 62(2)(g) ...... 13 Section 24MD(6B)(c) notices: s. 62(2)(ga) ...... 13 Section 29 notices: s. 62(2)(h) ...... 13 Subsection 190C(3) No common claimants in previous overlapping applications ...... 14 Subsection 190C(4) Authorisation/certification ...... 15 Merit conditions: s. 190B ...... 31 Subsection 190B(2) Identification of area subject to native title ...... 31 Subsection 190B(3) Identification of the native title claim group ...... 32 Subsection 190B(4) Native title rights and interests identifiable ...... 33 Subsection 190B(5) Factual basis for claimed native title ...... 35 Combined result for s. 190B(5) ...... 43 Subsection 190B(6) Prima facie case ...... 43 Subsection 190B(7) Traditional physical connection ...... 49 Subsection 190B(8) No failure to comply with s. 61A ...... 50 Reasons for s. 61A(1) ...... 50 Reasons for s. 61A(2) ...... 51 Reasons for s. 61A(3) ...... 51 Subsection 190B(9) No extinguishment etc. of claimed native title ...... 51 Reasons for s. 190B(9)(a) ...... 51 Reasons for s. 190B(9)(b) ...... 52 Result for s. 190B(9)(c) ...... 52 Attachment A Summary of registration test result ...... Error! Bookmark not defined.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 2 Decided: 13 March 2014 Introduction This document sets out my reasons, as a delegate of the Native Title Registrar (the Registrar), for the decision to accept the Widi People of the Nebo Estate claimant application (the application) for registration pursuant to s. 190A of the Act. I note that all references in these reasons to legislative sections refer to the Native Title Act 1993 (Cwlth) which I shall call ‘the Act’, as in force on the day this decision is made, unless otherwise specified. Please refer to the Act for the exact wording of each condition.
Application overview On 31 July 2013 the Registrar of the Federal Court (the Court) gave a copy of the application, filed on 29 July 2013, to the Registrar pursuant to s. 63. On 26 September 2013 the legal representative for the applicant advised the Tribunal that he filed an amended application with the Court on 25 September 2013. On 16 December 2013 a re-engrossed Form 1 application was filed with the Court pursuant to leave granted by the Court on 3 December 2013. A copy of the application was provided by the Court to the Tribunal on the same day pursuant to s. 64(4). This has triggered the Registrar’s duty to consider the claim made in the amended application under s. 190A. I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply. Therefore, in accordance with subsection 190A(6) I must accept the claim for registration if it satisfies all of the conditions in ss. 190B and 190C. This is commonly referred to as the registration test.
Registration test Section 190B sets out conditions that test particular merits of the claim for native title. Section 190C sets out conditions about ‘procedural and other matters’. Included among the procedural conditions is a requirement that the application must contain certain specified information and documents. In my reasons below I consider the s. 190C requirements first, in order to assess whether the application contains the information and documents required by s. 190C before turning to questions regarding the merit of that material for the purposes of s. 190B. Pursuant to s. 190A(6) , the claim in the application must be accepted for registration because it does satisfy all of the conditions in ss. 190B and 190C.
Information considered when making the decision For the purpose of the registration test, I have had regard to the information contained in the following documents: Form 1, including attachments and s. 62(1) affidavits as filed with the Court on 16 December 2013 pursuant to leave granted by Justice Collier on 3 December 2013.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 3 Decided: 13 March 2014 Tribunal’s Geospatial Services ‘Geospatial Report and Overlap Analysis’ (the Geospatial Report), dated 3 January 2014, being an expert analysis of the external and internal boundary descriptions and mapping of the application area and an overlap analysis against the Register, Schedule of Applications, determinations, agreements and s. 29 notices and equivalent. Submissions received from [Legal Representative 1 – name deleted], Town Agent for [Legal Representative 2 – name deleted], the legal representative for the Barada Barna People (‘Barada Barna People’s submissions’): o email dated 18 October 2013 o email dated 18 November 2013; and o email dated 3 December 2013. Copy of an interlocutory application made to the Court on 15 November 2013 by [Person 1 – name deleted] in this matter and QUD372/2006, being the Wiri Core Country Claim claimant application - QC2006/014 (‘the Wiri Core Country claim’). Copy of an interlocutory application made to the Court on 22 November 2013 by [Person 2 – name deleted] in this matter and the Wiri Core Country claim. Applicant’s ‘outline of submissions in support of the registration test’, addressing the above Barada Barna People’s submissions and other matters, dated 16 December 2013, including Attachment A, being an affidavit of consultant anthropologist [Anthropologist 1 – name deleted] filed in the Court on 27 September 2013 in the Wiri Core Country claim. Applicant’s response to the 15 November 2013 and 22 November 2013 interlocutory applications, dated 17 January 2014, including an affidavit by [Applicant’s legal representative- name deleted], solicitor in the employ of the North Queensland Land Council (NQLC), the applicant’s legal representative, filed in the Court on 18 December 2013 in the Wiri Core Country claim. Copy of submissions in support of their interlocutory applications, filed on 14 January 2014 in the Court by [Person 1 – name deleted] and [Person 2 – name deleted] in this matter and the Wiri Core Country claim [I will refer to the interlocutory applications and submissions collectively as ‘the [Person 1/Person 2 – names deleted] interlocutory applications’). Applicant’s response to the 14 January 2014 submissions and other issues, dated 14 February 2014, including an affidavit by [Applicant’s legal representative- name deleted], filed in the Court on 13 February 2014 in the Wiri Core Country claim and submissions filed on behalf of the Widi People of the Nebo Estate on 12 February 2014 in this matter. Geospatial database iSpatialView search results of the application area, dated 4 March 2014.
Consideration of the requirements of s. 190A(3) Subsection 190A(3) directs me to have regard to certain information when testing an application for registration; there is certain information that I must have regard to and I may have regard to other information, as I consider appropriate. In determining whether it is appropriate for me to have regard to certain information, I need to consider the information against the requirements of the particular condition of the registration
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 4 Decided: 13 March 2014 test to which it purports to speak – see Mansfield J in Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [19]. In relation to the ambit of what may be appropriate for me to have regard to, I am further guided by the following judgements: 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) and quote relevant aspects of these decisions below. I have examined the information contained in the Barada Barna People’s submissions and the [Person 1/Person 2 – names deleted] interlocutory applications on the above basis. Whilst the Barada Barna People’s email of 18 October 2013 states that ‘our submissions will not be limited to the authorisation issues but will cover all issues relevant to registration’, it appears on my assessment that the Barada Barna People’s submissions speak to the following: 1. The delegate cannot be satisfied that the current claim is authorised by the whole of the native title claim group as required by s. 190C(4)(b). 2. The claim group description is incorrect as it wrongfully excludes native title holders for the claim area. 3. The anthropological report attached to the application in Attachment F makes references to a variety of different ‘societies’ and is ‘full of uncertainty and guess work’ in relation to this issue. 4. The application cannot be registered because it does not satisfy the requirements of s. 190C(3) as persons included in the native title claim group are members of the native title claim group for the registered Barada Barna People’s claim. The [Person 1/Person 2 – names deleted] interlocutory applications, in summary, relate to the first and second point above and also assert that the authorisation meeting of 16 July 2013 was not adequately notified and decisions made at the meeting are not valid. On my assessment, the information put before me speaks to the requirements of ss. 190B(3), 190B(5), 190C(3) and 190C(4). I set out my consideration under these headings below.
Section 190B(3) Is it appropriate for me to have regard to adverse information? As noted above, in deciding this question I must consider the requirements of the particular condition of the registration test the information purports to speak to. 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]. Therefore, in my view, I cannot consider the information when considering the application against the requirements of s. 190B(3). Section 190B(5) Is it appropriate for me to have regard to adverse information?
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 5 Decided: 13 March 2014 According to Mansfield J in Doepel, s. 190B(5) ‘clearly calls for consideration of material which may go beyond the terms of the application, and for that purpose the information sources specified in s. 190A(3) may be relevant’ – at [16]. Mansfield J goes on to say that the Registrar’s task pursuant to s. 190B(5) is confined to addressing ‘the quality of the asserted factual basis’ for the rights and interests claimed in the application ...but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts — [17]. This approach to the Registrar’s task was approved by the Full Court in Gudjala FC at [83] and [85] where the Full Court held that the criticising or refusal to accept the asserted factual basis or evidence provided in support of the factual basis by the applicant is not permitted – at [93]. Significantly, Mansfield J also commented in Doepel that the Tribunal’s task when considering the requirements of ss. 190B and 190C is clearly not one of finding in all respects the real facts on the balance of probabilities, or on some other basis. Its role is not to supplant the role of the Court when adjudicating upon the application for determination of native title, or generally to undertake a preliminary hearing of the application — [16]; Justice Mansfield in Doepel also considered the issue of contrary information before a delegate in the process of applying the registration test. His comments are made under the heading ‘The inclusiveness of the Group’ and I will refer to them again below when considering the requirements of s. 190C(4). It is worth noting that the contentions His Honour is dealing with under this heading concern the requirements of s. 190C(2), s. 190B(3) and s. 61. Whilst the contentions do not relate to s. 190B(5), in my view, His Honour’s comments equally apply to my considerations under this section, given the introductory words at [47] that the Registrar’s ‘function under s 190A is to determine whether the requirements of ss 190B and 190C are satisfied according to their terms, rather than generally to consider the accuracy of the information in the application’. His Honour proceeds by posing the following questions Is the Registrar to note the inconsistency of information in different documents, and so simply not be satisfied of the accuracy of the information in the application or of the other applications [...]? Is the Registrar to undertake some form of hearing to reach a state of satisfaction about which application accurately describes the native title claim group? If so, how is the inquiry to be conducted? Issues would then arise as to whether the Registrar's satisfaction requires the Registrar to make findings of fact... — [47] His Honour concludes that ‘[t]he purpose of the 1998 amendments to Part 7 of the NT Act was to impose a gateway to the statutory benefits which registration provides by identifying only those people with a credible native title claim'— Second Reading Speech of the Attorney-General, Hansard, House of Representatives, 9 March 1998, p 784. The second reading speech does not indicate a legislative intention that the Registrar should embark upon some general fact finding exercise, balancing
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 6 Decided: 13 March 2014 and weighing conflicting evidence, to determine whether to accept a claim for registration’. (emphasis added) In summary, according to Doepel and Gudjala FC, I am not to evaluate the factual basis materials that are before me as if they were evidence furnished in support of the claim. I am not to embark on a fact finding exercise or balance and weigh conflicting evidence. My task is not to criticise or refuse to accept as true what is stated in the application and the additional information provided by the applicant, but to consider the sufficiency of the factual basis material to fully and comprehensively address the relevant matters set out in s. 190B(5). My assessment is limited to whether the asserted facts in the application and supporting material can support the claimed conclusions set out in s. 190B(5). For the above reasons, following Doepel and Gudjala FC, I am of the view, that it is not appropriate for me to have regard to the information contained in the Barada Barna People’s submission and the [Person 1/Person 2 – names deleted] interlocutory applications when considering the application against the requirements of s. 190B(5). In my view, the issues raised are issues appropriately considered by the Court in the course of the application’s proceedings and not by the Registrar (or her delegate) in the context of the registration test.
Section 190C(3) Is it appropriate for me to have regard to adverse information? In relation to the issue of the possible common ancestors I note that according to Mansfield J the requirements of s. 190C(3) may involve the Registrar addressing information not only contained in the application and accompanying documents, but also ‘otherwise available’—Doepel at [16]. Therefore, in my view, I can have regard to such information when considering the application against the requirements of s. 190C(3).
Section 190C(4)(b) Is it appropriate for me to have regard to adverse information? 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), His Honour states in relation to the two alternatives in s. 190C(4) — certification under subsection (4)(a) or authorisation under subsection (4)(b) that [t]he 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
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 7 Decided: 13 March 2014 [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] (emphasis added). 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]. Strickland was also followed by Collier J in Wiri People. Her Honour specifically states at [31] that [W]hile Doepel may be authority that, for the purposes of section 190C (2), the Registrar is not required to look beyond the terms of the application (cf Wakaman People No 2 v Native Title Registrar [2006] FCA 1198; (2006) 155 FCR 107 at 118), it does not necessarily follow that the same principle applies to the satisfaction required of the Registrar or his delegate by s 190C (4)(b). The factual circumstances of the matter before Collier J are particularly relevant to the matter before me. It involved the review of a delegate’s decision that an application did not meet the requirements of s. 190C(4)(b) where the evidence relating to the proper composition of the claim group was ‘conflicting and contentious’, including adverse information and submissions from the representative body that the Wiri People were a wider group than that which authorised the applicant. Referring to Risk, Collier J held that an assessment of whether the claim group is a properly constituted ‘native title claim group’ as defined in s. 61(1) is a function of the delegate’s duty under s. 190C(4). Based on the above, I am of the view that it is appropriate for me to have regard to the adverse information when considering the application against the requirements of s. 190C(4)(b). The question that remains to be considered by me is how much reliance I place on the information. I refer to my discussion at s. 190C(4) below.
Procedural fairness steps As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness, which seek to ensure that decisions are made in a fair, just and unbiased way. In my view, the applicant is entitled to an opportunity to comment in relation to any submissions made or information provided to the Registrar which is potentially adverse to the application being accepted for registration. In addition, the State of Queensland (‘the State’) is a person to whom procedural fairness is owed if it appears that the application may be accepted for registration—see Western Australia v Native Title Registrar and Belotti (1999) 95 FCR 93; [1999] FCA 1591 (WA v Registrar) at [29], [31] to [38]. The state government’s right to procedural fairness is supported by provisions of the Act, particularly s. 190A(3)(c) (which requires the Registrar to have regard to information supplied by the state/territory government to the extent it is reasonably practicable to do so).
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 8 Decided: 13 March 2014 On 2 August 2013, the State was provided with a copy of the application and informed by the Tribunal of the proposed decision timeframe and invited to comment in relation to the registration testing of the application. No submission was received from the State. On 18 October 2013, 18 November 2013 and 3 December 2013, as noted above, submissions were received from the legal representative of the Barada Barna People. Copies of the submissions were provided to the applicant on 3 December 2013. On 16 December 2013 the applicant provided a response to these submissions to the Tribunal. On 8 January 2014 the applicant was provided with an opportunity to comment on the two interlocutory applications received by the Tribunal on 21 November 2013 and 23 November 2013 respectively. The applicant provided a response on 17 January 2014. On 4 February 2014 the applicant was provided with an opportunity to comment on the submissions in support of the interlocutory application received by the Tribunal on 14 January 2014. The applicant provided a response on 14 February 2014. On 6 February 2014 the State was advised that further material was received from the applicant and third parties. The State advised that it did not seek to receive copies of the material and did not intend to make submissions.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 9 Decided: 13 March 2014 Procedural and other conditions: s. 190C Subsection 190C(2) Information etc. required by ss. 61 and 62 The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. The application satisfies the condition of s. 190C(2), because it does contain all of the details and other information and documents required by ss. 61 and 62, as set out in the reasons below. In reaching my decision for the condition in s. 190C(2), I understand that this condition is procedural only and simply requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss. 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s. 190C(2)—Doepel at [16] and also at [35] to [39]. It is also my view that I need only consider those parts of ss. 61 and 62 which impose requirements relating to the application containing certain details and information or being accompanied by any affidavit or other document (as specified in s. 190C(2)). I therefore do not consider the requirements of s. 61(2), as it imposes no obligations of this nature in relation to the application. I am also of the view that I do not need to consider the requirements of s. 61(5). The matters in ss. 61(5)(a), (b) and (d) relating to the Court’s prescribed form, filing in the Court and payment of fees, in my view, are matters for the Court. They do not, in my view, require any separate consideration by the Registrar. Paragraph 61(5)(c), which requires that the application contain such information as is prescribed, does not need to be considered by me under s. 190C(2), as I already test these things under s. 190C(2) where required by those parts of ss. 61 and 62 which actually identify the details/other information that must be in the application and the accompanying prescribed affidavit/documents. Turning to each of the particular parts of ss. 61 and 62 which require the application to contain details/other information or to be accompanied by an affidavit or other documents:
Native title claim group: s. 61(1) The application must be made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group. The application contains all details and other information required by s. 61(1). Part A of the application contains information regarding the persons authorised to make this application (pages 2 and 3 list the names of the persons comprising the applicant), and details regarding their authorisation by the native title claim group. Schedule A of the application describes the native title claim group as comprising the biological or adopted descendents of the persons listed at 3(a) to (m) (the apical ancestors).
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 10 Decided: 13 March 2014 I have confined my assessment of this requirement to the information contained in the application as this assessment does not involve me going beyond the application, nor does it require me to undertake any form of merit assessment of the material to determine if I am satisfied whether ‘in reality’ the native title claim group described is the correct native title claim group—Doepel at [37] and [39]. There is nothing on the face of the application that leads me to conclude that the description of the native title claim group does not include all of the persons in the native title group, or that it is a subgroup of the native title claim group.
Name and address for service: s. 61(3) The application must state the name and address for service of the person who is, or persons who are, the applicant. The application contains all details and other information required by s. 61(3)—Part B of the application contains the name and address for service of the persons who are the applicant.
Native title claim group named/described: s. 61(4) The application must: (a) name the persons in the native title claim group, or (b) otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. The application contains all details and other information required by s. 61(4)—Schedule A of the application contains a description of the persons in the native title claim group.
Affidavits in prescribed form: s. 62(1)(a) The application must be accompanied by an affidavit sworn by the applicant that: (i) the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and (ii) the applicant believes that none of the area covered by the application is also covered by an approved determination of native title, and (iii) the applicant believes all of the statements made in the application are true, and (iv) the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and (v) setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it. The application is accompanied by the affidavit required by s. 62(1)(a). The application is accompanied by two affidavits each from each of seven persons who comprise the applicant. The affidavits are signed and competently witnessed and both affidavits read together make all the statements required by this section including that the applicant is included in the native title claim group.
Application contains details required by s. 62(2): s. 62(1)(b) The application must contain the details specified in s. 62(2). The application contains all details and other information required by s. 62(1)(b).
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 11 Decided: 13 March 2014 The application does contain the details specified in ss. 62(2)(a) to (h), as identified in the reasons below.
Information about the boundaries of the area: s. 62(2)(a) The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application. The application contains all details and other information required by s. 62(2)(a)—Schedule B and Attachment B of the application contain information about the boundaries of the area referred to in ss. 62(2)(a)(i) and (ii).
Map of external boundaries of the area: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i). The application contains all details and other information required by s. 62(2)(b)—Attachment C contains a map of the external boundaries of the area referred to in s. 62(2)(b).
Searches: s. 62(2)(c) The application must contain the details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application. The application contains all details and other information required by s. 62(2)(c)—Schedule D of the application states that the applicant’s legal representative has not carried out any searches on behalf of the applicant.
Description of native title rights and interests: s. 62(2)(d) The application must contain a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law. The application contains all details and other information required by s. 62(2)(d)—Schedule E of the application contains a description of the native title rights and interests claimed.
Description of factual basis: s. 62(2)(e) The application must contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area, and (ii) there exist traditional laws and customs that give rise to the claimed native title, and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. The application contains all details and other information required by s. 62(2)(e)—Attachment F, consisting of affidavits from [Person 3 – name deleted], Kenneth Stewart Dodd, Linda Wailu and
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 12 Decided: 13 March 2014 Graham Ian Sauney and a ‘Registration Report for the Widi People of the Nebo Estate, Birri Gubba Region, Central Queensland’ of July 2013 by [Anthropologist 1 – name deleted], (‘Registration Report’) contains a general description of the factual basis. I have only considered whether the information regarding the claimants’ factual basis contained in Attachment F, in a general sense, addresses each of the particular assertions at s. 62(2)(e)(i) to (iii) and have not undertaken an assessment of its sufficiency. Any ‘genuine assessment’ of the details/information contained in the application at s. 62(2)(e), is to be undertaken by the Registrar when assessing the applicant’s factual basis for the purposes of s. 190B(5)—Gudjala FC at [92].
Activities: s. 62(2)(f) If the native title claim group currently carries out any activities in relation to the area claimed, the application must contain details of those activities. The application contains all details and other information required by s. 62(2)(f)—Schedule G of the application contains details of activities currently being carried out by the native title claim group in relation to the application area. Schedule G also refers to the documents contained in Attachment F.
Other applications: s. 62(2)(g) The application must contain details of any other applications to the High Court, Federal Court or a recognised state/territory body of which the applicant is aware, that have been made in relation to the whole or part of the area covered by the application and that seek a determination of native title or of compensation in relation to native title. The application contains all details and other information required by s. 62(2)(g)—Schedule H of the application states that the applicant is not aware of any such other current applications. I note that the Geospatial Report (as of 3 January 2014) identifies one overlapping application: QC2008/011—Barada Barna People—QUD380/2008.
Section 24MD(6B)(c) notices: s. 62(2)(ga) The application must contain details of any notification under s. 24MD(6B)(c) of which the applicant is aware, that have been given and that relate to the whole or part of the area covered by the application. The application contains all details and other information required by s. 62(2)(ga)—Schedule HA of the application states that the applicant is not aware of notifications under s. 24MD(6B)(c).
Section 29 notices: s. 62(2)(h) The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application. The application contains all details and other information required by s. 62(2)(h)—Schedule I of the application contains information that pertains to s. 29 notices of which the applicant is aware that relate to the application area. I note that the Geospatial Report identifies seven notices which fall within the external boundary of this application that were either in notification when this application was filed or were in notification at the time of the Geospatial Report (3 January 2014).
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 13 Decided: 13 March 2014 The two notices listed by the applicant are not part of the notices identified in the Geospatial Report. Subsection 190C(3) No common claimants in previous overlapping applications The Registrar/delegate must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if: (a) the previous application covered the whole or part of the area covered by the current application, and (b) the previous application was on the Register of Native Title Claims when the current application was made, and (c) the entry was made, or not removed, as a result of the previous application being considered for registration under s. 190A. The application satisfies the condition of s. 190C(3). The requirement that the Registrar be satisfied in the terms set out in s. 190C(3) is only triggered if all of the conditions found in ss. 190C(3)(a), (b) and (c) are satisfied—Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC)—at [9]. Section 190C(3) may involve the Registrar addressing information ‘otherwise available’—Doepel at [16]. I have considered the Geospatial Report to identify whether or not there are any previously registered applications in relation to the area covered by this application at the time it was made on 29 July 2013 (i.e. the date the application was filed in Court—Strickland FC at [44] and [45]). The Geospatial Report identifies that the following registered application overlaps this application in part:
% NTDA Overlap % NTDA Tribunal Federal QC2013/006 Name Status Status Date Area Area Overlapping Number Court Number Overlapping (sq km) (sq km) QC2013/006 NTDA Accepted for QC2008/011 QUD380/2008 Barada Barna People 13/08/2013 16372.111 3338.364 20.39 81.90 registration On 3 December 2013, I received submissions by the Barada Barna People in relation to this requirement of the registration test which concluded that the delegate ‘cannot be satisfied of the test in the chapeau of subsection 190C(3), and accordingly registration of the Widi application must be refused’. In essence, the submission argues that the Barada Barna People’s application should be treated by the Registrar has having been continuously registered since 9 October 2009. I disagree with this submission for the following reasons: The Barada Barna application was dismissed by order of the Federal Court on 12 April 2013, necessitating the removal of the entry for that claim from the Register of Native Title Claims (the Register)—see Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314. On 5 August 2013, Dowsett J ordered that the dismissal order be stayed pending the outcome of an appeal to a Full Court against the dismissal by the Barada Barna applicant.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 14 Decided: 13 March 2014 Although Dowsett J stayed the dismissal, His Honour did not order the Register entry for the Barada Barna claim to be retrospective (that is, backdated to the date it was removed from the Register). I note in this regard that there is Court authority that the Registrar cannot backdate an entry onto the Register—Wakaman People # 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1251 at [8] and Strickland v Native Title Registrar [2000] FCA 10 at [5]. On 13 August 2013, the Court’s Registrar gave notice under s. 189A to the Registrar of the order staying the dismissal and this has caused the Registrar to re-instate the Barada Barna claim on the Register. As such the overlapping Barada Barna application (on 13 August 2013) was not registered when the Widi People of the Nebo Estate application was made (on 29 July 2013). As the Barada Barna application was not on the Register when this application, the Widi People of the Nebo Estate application, was made, there was no previously registered overlapping application at the time the current application was made.
Therefore, I am satisfied that no person included in the native title claim group for the current application was a member of the native title claim group for any previous applications, as required by subsection 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. I must be satisfied that the requirements set out in either ss. 190C(4)(a) or (b) are met, in order for the condition of s. 190C(4) to be satisfied.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 15 Decided: 13 March 2014 As the application is not certified, the requirements of s. 190C(4)(a) do not apply and I must consider whether I am satisfied that the requirements of s. 190C(4)(b) are met. Section 190C(4)(b) sets out 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. 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.
Applicant’s authorisation material In addition to a brief outline in Schedule R, Attachment R to the application contains the s. 62 affidavits of the applicant persons and an affidavit by [Applicant’s legal representative - name deleted], legal representative for the applicant, which set out details of the authorisation process.
Are the requirements of s. 190C(5) met? The application contains the relevant statements and briefly sets out the relevant grounds in Schedule R in its attachments. I am therefore satisfied that the requirements of s. 190C(5) have been met.
Are the requirements of s. 190C(4)(b) met? First limb of s. 190C(4)(b)—the applicant is a member of the native title claim group The section 62 affidavits of the applicant persons each state that the deponent is a member of the native title claim group and makes reference to the relevant ancestral line. On the basis of this information I am satisfied that the persons comprising the applicant are members of the native title claim group.
Second limb of s. 190C(4)(b)—the applicant is authorised by all the other persons in the native title claim group Section 253 defines the term ‘native title claim group’ as meaning the native title claim group mentioned at s. 61(1). The relevant part of s. 61(1) says: 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[.] (Emphasis added.) I understand that the effect of s. 61(1) is that the Registrar or her delegate must, at s. 190C(4)(b), be satisfied that the applicant is authorised by all the persons who are said to hold the particular
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 16 Decided: 13 March 2014 native title claimed under the laws and customs of the claim group. This is distinct from being satisfied that the applicant is authorised by the group identified in the application. The Registrar or her delegate must also be satisfied that the group so identified includes all the persons who are recognised by the claim group’s traditional laws and customs as holding the rights and interests claimed—Wiri People at [28] and [35] to [36]; Risk v National Native Title Tribunal [2000] FCA 1589 (Risk) at [62]. The term ‘authorise’ as used in s. 190C(4)(b) is defined in s. 251B. Section 251B provides that 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. There is a long line of authority that an agreed and adopted process can only be used where there is no traditional process mandated for authorising ‘things of that kind’ (i.e. authorising an applicant to make a native title determination application)—see for example Evans v Native Title Registrar [2004] 1070 at [7] and [52]. Further, it has been held that the word ‘all’ in the context of authorisation pursuant to s. 251B, has ‘a more limited meaning than it might otherwise have.’ In Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 (Lawson), Stone J held in relation to s. 251B(b) that it is not necessary for each and every member of the native title claim group to authorise the making of an application, but rather ‘[i]t is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision making process’—Lawson at [25]. A reasonable opportunity to participate, in such circumstances, may be reflected in material demonstrating that an authorisation meeting was well attended and appropriately advertised or communicated to all members of the native title claim group—Lawson at [27]. The information that is relevant to my consideration In summary, the information and assertions about the authorisation of the applicant to make this application are contained in material before me from the applicant, the Barada Barna People (an overlapping application) and [Person 1 – name deleted] and [Person 2 – name deleted] (persons who are currently seeking to be joined to the Wiri Core Country claim and the Widi People of the Nebo Estate claim. I note in this regard that the authorisation meeting for this claim also involved authorisation of amendments to the Wiri Core Country claim. I refer to my reasons below at s. 190B(5) for further information about the background to these two applications). Below I also refer to the authorisation meeting in two parts. That is because the authorisation meeting proceeded in two separate parts. The first part of the meeting primarily dealt with a preliminary issue relating to the native title claim group description for the Wiri Core Country claim, which then had implications for the native title claim group on whose behalf the Widi People of the Nebo Estate claim was made. The information and assertions contained in the material from the applicant is contradicted by the information and assertions in the material from the Barada Barna People and [Person 1 – name deleted] and [Person 2 – name deleted]. The applicant’s material
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 17 Decided: 13 March 2014 The steps taken by the North Queensland Land Council (NQLC) in notifying the authorisation meeting and the decisions made at that meeting are outlined in [Applicant’s legal representative - name deleted]’s affidavit of 22 July 2013. Further information is provided in the s. 62(1) affidavits of the persons who are the applicant and in the applicant’s responses to submissions received from [Person 1 – name deleted] and [Person 2 – name deleted]. Below I set out information taken from the applicant’s material, particularly that which is contained within the affidavit of [Applicant’s legal representative - name deleted] dated 12 February 2014 and submissions by the Widi People of the Nebo Estate filed in Court on 12 February 2014. This includes that: the authorisation meeting relevant to this application was held on 16 July 2013 in Mackay; on 24 June 2013 91 personal meeting notification letters were sent to members of the Wiri Core Country claim as registered on the NQLC’s contact register; on 26 June 2013 a further notification letter was sent to the registered claimants which contained an updated meeting notice; the meeting was advertised in the Courier Mail and the Mackay Daily Mercury on 29 June 2013; the meeting proceeded in two separate parts; the first part of the meeting dealt with matters in relation to the Wiri Core Country claim, being deciding whether to authorise the following: o amendment of claim group description by removal of certain apical ancestors in accordance with current anthropological research o replacement of an ancestor in the description with another to more accurately describe the claim group o removal of deceased applicant persons o removal from the applicant and the claim group descendants of certain persons; at the first part of the meeting, it was resolved that the native title claim group description be amended so as to no longer included reference to certain ancestors, including [Ancestor 1 – name deleted] [which I understand to be [Ancestor 1 – name deleted] referred to in the [Person 1/Person 2 – names deleted] interlocutory application – see affidavit by [Applicant’s legal representative - name deleted] of 18 December 2013 at [11.b]) and their descendants; the second part of the meeting was attended only by those captured by the amended claim group description for the Wiri Core Country claim as agreed to in the first part of the meeting. The meeting notice sets out that the purpose of the second part of the meeting was to: o authorise an amended description of the native title claim group for the Wiri Core Country claim o authorise an amendment to the external boundary of the claim area for the Wiri Core Country claim o authorise the making of a further application o confirm the applicant for the Wiri Core Country claim and to authorise the applicant for the proposed claim o authorise the amendment of the name of the Wiri Core Country claim and to authorise a name for the proposed claim; the persons in attendance at the first part of the meeting agreed that the group does not have a mandatory decision-making process and adopted an agreed decision-making process.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 18 Decided: 13 March 2014 Motions were passed after a two and half hour long discussion. The details of the decision- making process are set out in the s. 62(1) affidavits at [12]; of the persons in attendance, 22 persons (named in the material) opposed the motion on the decision-making process. The resolution was passed with nine lineages agreeing, three disagreeing, four recorded as not in attendance (with three not having any known descendants); after the passage of the motion [Applicant’s legal representative - name deleted] advised one of the representatives of a lineage that their ancestor is in fact another person and that she should not have reported her family’s decision as a representative of the lineage; a total of 84 persons signed the Attendance List for the first meeting and all signatories of the Attendance List are members of the native title claim group as described in the Widi Core Country claim filed on 27 March 2009 ― affidavit of [Applicant’s legal representative - name deleted]dated 12 February 2014; ‘[a]fter the last resolution was passed at Meeting #1, the NQLC Chief Executive Officer explained that the second meeting (Meeting#2) was open only to those persons descended from the newly described Native Title Claim group [ie the group which had certain ancestors removed]. After this announcement was made a large number of people, most of whom I recognise and am aware are of claim to be descendants of the removed apical ancestor, [Ancestor 1 – name deleted], left the meeting’ ―[Applicant’s legal representative - name deleted] affidavit of 22 July 2013 at [25]; at the second part of the meeting a resolution was passed without objections that ‘the native title claim group for the Wiri Core Country claim as amended by Resolution 5 above [a resolution which sees the removal of certain ancestors from the claim group description] resolve that ... the decision making process used in Meeting One be adopted for any resolutions to be passed at this meeting’; following the agreed to and adopted decision-making process, the meeting attendees of the second part of the meeting passed a resolution that the persons who comprise of the applicant on the proposed amended Wiri Core Country Claim, are to be the applicant for this claim [being the Widi People of the Nebo Estate] and authorise the applicant to make this claim and deal with all matters arising in relation to this claim. This resolution was passed without objections.
Barada Barna People’s submissions In summary, the submissions include the following information and assertions about the authorisation of this application: the history of the previous Wiri/Widi claims is so contentious that the delegate should not be satisfied that the current claim was authorised by the whole of the native title claim group; the decision of the Registrar in Wiri People which was the subject of a judicial review by Justice Collier was correct. The delegate had found that ‘[t]he evidence about the identification of the native title holders is contentious and uncertain. In conclusion I cannot be satisfied that the group described in the application before me is the whole native title claim group, as that group is defined in s. 61(1)’; the anthropological report of [Anthropologist 1 – name deleted] is replete with references to a variety of different ‘societies’ which may or may not be the correct native title group. The issue is full of uncertainty and guess work by [Anthropologist 1 – name deleted];
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 19 Decided: 13 March 2014 there is no rational basis on which the delegate can be satisfied that the applicant is authorised by all the persons in the native title claim group; this conclusion is supported by the complaints of certain Wiri persons who assert that the claim group description is incorrect and wrongfully excludes them from their rightful place as native title holders for the area. Those complaints have been aired in a preliminary way before the Federal Court and are to be considered further at a Directions Hearing on 3 December 2013 [I note this is a reference to the [Person 1/Person 2 – names deleted] interlocutory applications and that Justice Collier on 3 December 2013 ordered that the interlocutory applications be adjourned for mention to 11 July 2014].
Applicant’s response to information in the Barada Barna People’s submissions In response to the submissions made by the Barada Barna People in relation to the Court’s findings in Wiri People, the applicant submits that the decision relates to the Wiri # 2 claim, a competing claim which overlapped the Wiri Core Country claim. Further, the applicant asserts that the Wiri # 2 claim can be distinguished from the Widi People of the Nebo Estate claim which is not a competing or overlapping claim within the broader Wiri/Widi native title claim group and the material in support of the Widi People of the Nebo Estate claim demonstrates that the applicant was authorised by members of the broader claim group.
In response to the submission that [Anthropologist 1 – name deleted]‘s findings on the society issue is full of uncertainty and guess work, the applicant submits that the Barada Barna People have misconstrued [Anthropologist 1 – name deleted]‘s conclusions on the society issue. The applicant refers to the Registration Report (which, as noted above, is attached to the application as part of Attachment F), in particular paragraphs [15] to [56], which, in summary, states that the Widi People are one of nine subsets of a wider community known as the Birri Gubba society (or nation/federation) which extends from Marlborough northwards to Townsville and inland to the Great Dividing Range. The Nebo Estate is the territory of the Widi People and named after the township of Nebo which was established at the time of Initial European Settlement of the region in 1861. The Registration Report contains quotes from early ethnographic accounts in support of the above. The Registration Report also outlines that it is based on ethnographic, archival and literature research conducted by [Anthropologist 1 – name deleted] for two native claims in the Birri Gubba Region of Central Queensland. The first set of connection research was conducted between September 2010 and April 2011 for the Jangga People. The Jangga claim is situated to the northwest of the Wiri Core Country claim, and the two claims have a mutual boundary in the vicinity of Glenden. The second set of connection research was undertaken between December 2001 and October 2012 for the Wiri Core Country claim. A total of 63 days were spent by [Anthropologist 1 – name deleted] in the field, ten communities were visited once or several times , 54 ethnographic interviews or meetings were conducted and in total [Anthropologist 1 – name deleted] engaged with 79 Aboriginal people, almost all of whom are or assert to be members of the Widi People. The third set of connection research occurred in early to mid 2013. During this time further research was undertaken into the boundaries of the Widi People’s Nebo Estate and particular ancestors. Further, the applicant submits that the Birri Gubba society referred to in the Registration Report has a sound anthropological basis which has been accepted by the Court in the matters of Prior on behalf of the Juru (Cape Upstart) People v State of Queensland [2011] FCA 819 at paragraph [9] and
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 20 Decided: 13 March 2014 McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082 at paragraphs [19] and [20].
[Person 1/Person 2 – names deleted] interlocutory applications [Person 1 – name deleted] and [Person 2 – name deleted] seek to be joined by the Court to the Wiri Core Country claim and the Widi People of the Nebo Estate claim on the basis that their apical ancestor, [Ancestor 1 – name deleted] is a Wiri apical ancestor. I note the following by way of background: the [Person 1/Person 2 – names deleted] interlocutory applications were provided to the Tribunal by [Person 1 – name deleted] under cover of emails which stated that they have been provided ‘by way of service’. It is clear to me that the material has been produced for filing in Court and has merely been provided in copy to the Tribunal. The emails do not mention the application of the registration test to this application nor are specific conditions of the registration test addressed in the material; as noted in the introduction to these reasons, I have regard to this information as I consider it appropriate to do so, given that the material relates to the authorisation meeting of 16 July 2013; the authorisation meeting, as noted above, was held in two parts. [Person 1 - name deleted] and [Person 2 - name deleted] only attended the first part of the meeting. The decision to authorise the making of this application was made in the second part of the meeting, after the descendents of [Ancestor 1 – name deleted] (including [Person 1 - name deleted] and [Person 2 - name deleted]) had left the meeting. In relation to the claim group description, the [Person 1/Person 2 – names deleted] interlocutory applications asserts that, contrary to the anthropological research finding discussed at the authorisation meeting on 16 July 2013 and the decisions made at the that meeting, [Ancestor 1 - name deleted] must be part of the claim group description for the two claims as there is no proper basis for removing [Ancestor 1 – name deleted] as an apical ancestor from the claim group descriptions. They also assert that the [Family name – name deleted] family has not been consulted about the removal. Material in support of the assertion that [Ancestor 1 - name deleted] is a Widi person is provided with the [Person 1/Person 2 – names deleted] interlocutory applications.
In relation to the authorisation meeting, the [Person 1/Person 2 – names deleted] interlocutory applications, in summary, state that it was not adequately notified and decisions made at the meeting (in particular the decision to amend the claim group description) were made using improper and invalid voting methods. This is because: notifications for previous meetings of the claim group were published in two main Indigenous papers; this was not the case with the 16 July 2013 meeting; no notices were placed in the Townsville Daily Bulletin, where a large proportion of the members of the claim group live; only two weeks notice was provided; no notice of the meeting was provided to [Person 1 – name deleted] or members of her family;
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 21 Decided: 13 March 2014 previous authorisation meetings were held on a weekend, this meeting was held on a Tuesday, making it difficult for people with jobs to attend; an incorrect meeting venue was noted in the notification making the notice inadequate; there was no independent meeting facilitator; during the meeting, NQLC staff and [Anthropologist 1 – name deleted] addressed members of the Johnson family aggressively and in a condescending and demeaning way; another attendee was bullied into changing his vote; it was incorrectly stated by [Anthropologist 1 – name deleted] at the meeting that the Widi People do not have a decision-making process, as at all previous authorisation meetings decisions were made by majority by show of hands; instead of using this long established agreed and adopted decision-making process of the Widi People, NQLC proposed that each lineage was to nominate one person to represent a lineage and that resolutions would be voted on by a show of hands by the nominated representatives in the room. 22 people objected to this decision-making method, however, the relevant resolution was still passed. Not all of the lineages were represented at the meeting. The new decision-making method was used to ensure that the descendants of [Ancestor 1 - name deleted] would not be able to defeat the resolutions proposed by NQLC; and NQLC ignored the assertion made by [Person 1 – name deleted] at the meeting that she could represent the [Ancestor 2 – name deleted]’s lineage.
In addition to the above, submissions filed by [Person 1 - name deleted] and [Person 2 - name deleted] in support of their joinder applications state there was opposition to the decision-making process itself at the authorisation meeting and that this rejection of the process means that there was no process agreed to and adopted. As such, there can be no valid decisions from the meeting. Further: the decision-making process does not limit participation to those in attendance at the meeting. The failure to allow each person in each group descended from a lineage to have a reasonable opportunity to participate in the decision-making means that the process was not followed; and the decision-making process required consensus, a standard not met at the meeting.
Applicant’s response to the information in the [Person 1/Person 2 – names deleted] interlocutory applications The applicant responded as follows to the [Person 1/Person 2 – names deleted] interlocutory applications: In relation to the assertion that [Ancestor 1 - name deleted] is a Widi person, the applicant refers to an affidavit by [Anthropologist 1 – name deleted], dated 24 September 2013. [Anthropologist 1 – name deleted], who was instructed by the NQLC, amongst other things, to undertake research to identify the Wiri Core Country native title claim group, states that: based on his research he recommended that the list of apical ancestors authorised in 2005, which formed the basis of the Wiri Core Country claim group description, be revised; he recommended an alternative list of apical ancestors; he explained the basis for the recommendation in his Registration Report, which is attached to the application as Attachment F;
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 22 Decided: 13 March 2014 he prepared for the authorisation meeting a table which sets out the current description of apical ancestors, the proposed description and the reasons for change; and he found that certain ancestors should be removed, including the above mentioned ancestor [Ancestor 1 – name deleted]. As instructed by NQLC he prepared a separate report in relation to each of these ancestors which is attached to his affidavit and sets out the basis for his finding that the person is not a Widi ancestor. Further, as instructed by NQLC, he met with the descendants of these ancestors and he has prepared a report which details the consultations and the basis for his findings that the persons are not Widi ancestors. The relevant reports are attached to the affidavit. [Anthropologist 1 – name deleted]’s ten-page ‘Connection Research into Apical Ancestor [Apical Ancestor 1 – name deleted] ([Family Name – name deleted] Family)’ explains that: in his opinion the [Family Name – name deleted] family clearly has a traditional, localised, land-owning connection to the Clermont district but there is evidence of such connection to the Nebo district; based on the evidence at hand, any connection the [Family Name – name deleted] family may have to the Nebo district has arisen over the last two decades and it is arguable that such a tenuous connection cannot even be described as ‘historical’, for that requires a span of time comprising many more decades.
In relation to the issues raised regarding the authorisation meeting, applicant’s response states that: the Widi and Wiri claim areas are close to Mackay and a number of Wiri/Widi People reside in and around Mackay. Therefore the meeting was notified in the Mackay Mercury. A further notice was published in the weekend edition of the Courier Mail which is circulated throughout Queensland; all members of the claim group were invited to attend the meeting; the purpose and business of the meeting was advertised widely and in detail. The notices enabled the recipients to judge for themselves whether or not to attend the meetings; [Person 2 - name deleted] and [Person 1 - name deleted] both attended the meeting and there is no evidence that they were in any way prejudiced by the way in which the meeting was brought to their attention, noting that, contrary to [Person 1 - name deleted]’s assertion, meeting notices were sent to five members of the [Family Name – name deleted] family; a member of the ([Family Name – name deleted] family, [Person 4 – name deleted] (who, based on NQLC’s research, is the biological brother of [Person 1 – name deleted]), was advised by NQLC in a letter dated 20 June 2013 that the conclusion of [Anthropologist 1 – name deleted]’s research is that [Ancestor 1 – name deleted] is traditionally connected to the Claremont Estate which is within Wangin country. That letter further notes that [Anthropologist 1 – name deleted] has attempted without success to meet with [Person 4 – name deleted] on several occasions to explain his findings. It also states that it has come to NQLC’s attention that at an authorisation meeting held in relation to the Wangan and Jagalingou People claim held on 25 May 2013 a ‘[Ancestor 1 – name deleted]’ was authorised as a Wangan and Jagalingou apical ancestor and that NQLC has been advised that this person is the same person referred to as ‘‘[Ancestor 1 – name deleted]’. No response to this letter and its invitation to discuss the matter was received from [Person 4 – name deleted] by NQLC;
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 23 Decided: 13 March 2014 neither NQLC staff nor [Anthropologist 1 – name deleted] addressed members of the [Family Name – name deleted] family in an aggressive, condescending or demeaning manner at the meeting; the allegation of bullying another meeting attendee is also denied; the meeting agreed that there was no mandatory traditional decision-making process for matters of the kind to be dealt with at the meeting; the attendees agreed to and adopted a decision-making process of consensus reached amongst family groups descended from particular apical ancestor lineages, whereby consensus did not require unanimous agreement but a general agreement after differing points of view were noted and reconciled. 22 attendees objected to the resolution, however, the descendants of each apical ancestor (except one in respect of whom there are known descendants) then had the opportunity to take part in that process and at various times did so. That some people may not have availed themselves of that opportunity does not matter. As such there was a reasonable opportunity to take part in the decision-making process at the meeting; [Person 2 - name deleted] was the representative of the [Ancestor 1 – name deleted] lineage, which includes [Person 1 – name deleted]. In her role as representative [Person 2 - name deleted] took part in every relevant stage of the first meeting and agreed that those in attendance were sufficiently representative of their respective families to make authoritative decisions and that her family and elders had been consulted about the issues for discussion at the meeting and that she was representing those in her family who could not attend the meeting; the meeting attendees did not decide to vote on issues by show of hands, rather they decided to allow each lineage to meet separately to agree on matters according to their own internal processes and to convey the outcomes at the meeting through an agreed representative. It was agreed that no one persons or lineage has a right of veto. Unanimity was not required, the process contemplated disagreement and any disagreement was duly noted. Those present at the meeting conducted themselves on the basis that it was agreed that decisions of lineages would be conveyed to the meeting through family representatives. [Person 2 - name deleted] and [Person 1 - name deleted] are the only persons now challenging the decision-making process, yet, they both participated in it. The conduct of the meeting attendees shows that, despite the noted objections, there was general agreement about the decision-making process. The fact that not every lineage representative agreed with the final outcome of the decision does not subtract from the broader majority agreement reached; and the decision to authorise the making of this application was made by a newly constituted claim group, following the removal of particular apical ancestors from the claim group description agreed to at the first part of the authorisation meeting. The resolution was made during the second part of the meeting and passed by the attendees of the second part of the meeting without any objections.
Consideration The information before me essentially raises two issues: whether I can be satisfied of the identity of the claim group in the sense that there is compliance with s. 61(1) for the purpose of s. 190C(4)(b); and whether all of the persons in the claim group authorised the applicant to make the application and to deal with matters arising in relation to it. 1. Claim group description
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 24 Decided: 13 March 2014 Given the purely administrative function of applying the registration test, it is not the role of the Registrar or her delegate to adjudicate and decide who each of the persons who hold the native title claimed are. As noted, most recently, by Barker J in Stock v Native Title Registrar [2013] FCA 1290 (Stock), any contest in relation to the traditional and anthropological basis for the assertions made in the claim must be contested at the hearing of the claim by the Court—at [100]. His Honour affirmed that there was no error in the approach of the delegate in deciding that, even given that there was a contest between two competing native title claim groups made in separate applications over the same or part of the same area, he could be satisfied of the identity of the claim group in the sense that the application complied with s. 61(1). The delegate’s approach and reasoning that the information before him provided ‘cogent support’ for the claim group being a subgroup that alone holds the native title rights and interests, and which formed the basis of his conclusion that he could be satisfied of the identity of the claim group, was held to be correct in law and application ― Stock at [99] to [100]. In Wiri People, the Court held that in some circumstances compelling information that contradicts the identity of the claim group made in an application may prevent the Registrar or her delegate from being satisfied that the claim group description actually includes all the members of the native title claim group (as that term is defined in s. 61(1)). In that regard, Collier J held that there is a relationship between ss. 190C(4)(b) and 61(1), which must be considered by the Registrar ― at [29]. From the above, I understand that sections 61(1), 190C(4)(b) and 251B of the Act require that the authority to make a native title determination application flow from the ‘native title claim group.’ Accordingly, the native title claim group must comprise ‘all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’―s. 61(1). The law has clearly defined the relationship between these specific provisions of the Act, and in being satisfied of authorisation I am bound to consider that relationship. Whilst I cannot decide and adjudicate on who holds native title in the claim area (Wiri People at [25]), there must at least be clear and cogent material before me upon which I can reach a reasonable state of satisfaction of the matters under s. 190C(4)(b). In that regard, the relevant law does firmly suggest that the task at s. 190C(4)(b) envisages that the Registrar or her delegate have a clear understanding of the ‘identity’ of the claimed native title holders before proceeding to consider whether those persons authorised the applicant to make the application. This understanding is not simply verified or confirmed by having regard to the way in which the applicant chooses to define the claim group ―Risk at [34] to [35]; Wiri People at [12] and [26]. The information in the material before me does reveal a real disagreement and contradiction in relation to the native title claim group. Whilst it does not necessarily present a situation akin to those in Stock and Wiri People where there were competing applications made by similarly described groups over the same area, it does contain information which contradicts the identity of the claim group described in the application. Thus, the issue of whether the claim group described in the application does include all of the persons who are properly part of the native title claim group is of fundamental importance to whether I can be satisfied that the applicant is authorised by all the other members of the native title claim group. I therefore consider this question before deciding whether I am satisfied that the persons comprising the applicant are
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 25 Decided: 13 March 2014 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. Having considered the application and its attachments and all of the information that has been put before me on this issue, I have formed the view that the applicant provides a clear basis for my understanding the way in which the claim group has been described. In my view, this information (particularly, the anthropological findings of [Anthropologist 1 – name deleted]) provides cogent support for the description in this application and the decision to exclude certain ancestors, including [Ancestor 1 – name deleted]. In my view the Barada Barna People’s submissions and the information contained in the [Person 1/Person 2 – names deleted] interlocutory applications do not constitute cogent or probative material which supports their submission that the applicant was not authorised to make the application by ‘all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’ as required by s. 61(1). I am satisfied that the claim group described in the current application includes all the persons who form part of the native title claim group, as that term is defined by s. 61(1). 2. Authorision Having considered and reached a state of satisfaction in relation to the issue of the identity of the native title claim group, I must now consider whether I am satisfied that the applicant is authorised. This essentially requires that I be satisfied that authority to the applicant flowed from the native title claim group in compliance ‘with either of the processes for which the legislature has allowed’, being those set out in s. 251B(a) or (b)—Evans v Native Title Registrar [2004] FCA 1070 at [53]. The applicant’s material clearly asserts that at a meeting, held in July 2013, the applicant was authorised to make the application pursuant to a decision-making process which was agreed to and adopted by the members of the claim group present at the meeting. Thus, the focus of my consideration of the applicant’s authorisation will be the process set out in s. 251B(b). There are a number of issues that are raised in the information and assertions in the [Person 1/Person 2 – names deleted] interlocutory applications, which I will address below having regard to the principles outlined above, particularly J Stone’s findings in Lawson that it is not required that each and every member of the claim group authorises the applicant to make the application, but rather that ‘[i]t is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision making process’ – at [25].. Whether the meeting was appropriately notified The [Person 1/Person 2 – names deleted] interlocutory applications assert that the method of notification for the meeting in July 2013 deviated from previous methods of notification for the claim group and that insufficient notice was given. This issue is relevant to whether I can be satisfied that all members of the claim group were given a reasonable opportunity to participate in making a decision about the authorisation of the applicant.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 26 Decided: 13 March 2014 In the context of s. 251B, the Court has particularly scrutinised what may be reflective of an appropriate notice as one part of a process that seeks to afford a native title claim group every reasonable opportunity to participate in the decision to authorise an applicant. That notice ‘must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determine by the majority who do attend and vote at the meeting.’ This may also involve consideration of whether members of the native title claim group were accurately informed via the notice that matters regarding the composition of the claim group would be discussed and decided at the meeting ― Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40]. Based on all the information before me, and contrary to the information contained in the [Person 1/Person 2 – names deleted] interlocutory applications, I am satisfied that the meeting of 16 July 2013 was sufficiently notified – by personal notification letters and published notifications - such that members of the claim group were given every reasonable opportunity to participate in the decision-making process which occurred at the meeting. In my view neither the deviation from previous methods of notification nor the fact that there was a change of meeting venue justifies the conclusion that that was not the case. I am also of the view that sufficient and appropriate meeting notice has been given. From the meeting records I understand that the meeting was attended by a representative group of claim group members and this, in my view, supports a conclusion that the notice given was effective. I note in this regard that there seems to be contradictory information about the number of persons who attended the meeting, with [Applicant’s legal representative - name deleted] stating that 82 persons attended and the applicant’s submissions filed in Court on 12 February 2014, which refer to the relevant paragraph in [Applicant’s legal representative - name deleted] ‘s affidavit, stating that 73 persons attended the first meeting. I note that the material before me also states that 91 personal notification letters were mailed out by the NQLC and that 177 people registered to attend the meeting. All but one out of 16 lineages were represented at the meeting, with three being noted as not having any known descendants. In my view, the difference in attendance numbers, relatively speaking, is insignificant and does not lead me to conclude that the meeting was not attended by a representative group of claim group members.
Whether a previously agreed to and adopted decision making process has to be used at a subsequent meeting [Person 2 - name deleted] and [Person 1 – name deleted] assert that a previously agreed to and adopted decision-making process has to be used at subsequent meetings. In Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 the Full Court (North, Weinberg and Greenwood JJ) observed that: ...section [251B] accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions.- at [18] [emphasis added] In my view, it follows that the fact that at previous authorisation meetings a different decision-making process was agreed to and adopted or utilised does not render the agreement to adopt the process used for the making of the authorisation decision for this application invalid.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 27 Decided: 13 March 2014 [Person 2 - name deleted] and [Person 1 - name deleted] assert that it is material that the resolutions for the first part of the meeting, relating to the decision-making process, were drafted by NQLC. In my view, by whom the resolutions for the meeting were drafted or how they came to be used, is immaterial. What matters is whether the decision-making process has been agreed to and then adopted by the members of the claim group in attendance at the meeting. Whether a decision-making process has to be agreed to and adopted without dissent [Person 2 - name deleted] and [Person 1 - name deleted] assert that a decision-making process has to be agreed to and adopted without dissent. As noted above, two resolutions were passed adopting the decision-making process. The first was passed with dissent at the first part of the meeting. The second (to adopt the same process for the second part of the meeting) was adopted at the second part of the meeting, which was only open to members of the claim group (ie. not those whose ancestor has been removed from the claim group description as a result of decisions made at the first part of the meeting). The resolution was passed without dissent at the beginning of the second meeting. This is, in my view, the relevant resolution. However, should I be wrong about this and the assertions made by [Person 2 - name deleted] and [Person 1 - name deleted] are also relevant to the resolution made at the second part of the meeting, I note the following reasons for my view that a decision-making process does not have to be adopted without dissent: In Brown v State of South Australia [2009] FCA 206 Besanko J relevantly summarised the operation of s. 251B, particularly the nature of the two step process which is a feature of s. 251B(b), as follows: Two points about s 251B(b) have been noted in the authorities. First, the paragraph envisages two steps, namely, the native title claim group agrees to the process whereby a decision authorising a person to make an application is made, and then the making of the decision itself: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 at [42] per Emmett J. Secondly, the paragraph does not include the word “all”. There will clearly be cases where it will not be possible to secure the agreement of each and every member of the native title claim group. For example, members of a native title claim group may include infants, those who are mentally defective and those whose whereabouts are unknown. In recognition of this practical reality, it has been said that there will be no defect in the authorisation where all members of the native title claim group are given a reasonable opportunity to take part in the decision-making process: Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (Lawson); Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61 at 69 [40]. [emphasis added] – at [23] In NC (deceased) v State of Western Australia (No 2) [2013] FCA 70 McKerracher J disagreed with the suggestion put to him that the decision-making process adopted needs to be agreed or adopted unanimously or without substantial dissent. I do not accept that the decision-making process needs to be adopted unanimously.– at [95] His Honour noted further at [96] that
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 28 Decided: 13 March 2014 [i]t is a recurring theme for the respondents to the application that the majority was too slim and not only had majority decision-making not been properly agreed, but that it required agreement by all people or almost all people. I do not consider this to be the case. In Coyne v State of Western Australia [2009] FCA 533, a meeting of 72 people was held to be able to authorise the replacement applicant where 29 people opposed the motion. Given the division present within the Yindjibarndi native title claim group, to suggest that unanimous or near unanimous approval of the decision-making process was required would ‘make it extremely difficult if not impossible for a claimant group to progress a claim’: see Lawson (at [25]) per Stone J and P.C. (at [22]) per Bennett J. It follows in my view that a decision-making process does not have to be agreed to and adopted without dissent. Agreeing on such a process is only step one of the overall decision-making process. Step two is the making of the decision itself, following the agreed to and adopted process. In my view, to require that the first decision is made unanimously or without dissent would render it almost impossible for a claim group which is subject to internal division to move beyond step one. Whether the applicant was authorised in accordance with the agreed decision-making process at the authorisation meeting [Person 2 - name deleted] and [Person 1 - name deleted] assert that the decision-making process agreed to and adopted at the meeting did not specifically limit participation to only those in attendance but also provides for each person in each lineage group to have a reasonable opportunity to participate in the decision-making. In my view, it is clear from the meeting notice (‘the purposes of this meeting are for the current NTCG to decide...’), the agenda and the conduct at the meeting that the intention was for meeting attendees to make a number of decisions at the meeting, including a decision on whether or not to authorise the making of this application. The resolution in relation to the decision-making process was clearly worded and projected at the meeting venue for all attendees to see and consider. Relevantly, the resolution at (d) states that the motion must be moved and seconded ‘... before it is decided upon’. Further, each lineage is given the opportunity to ‘meet separately today to agree upon the terms of the proposed resolution...’ and any decision made is to be ‘reported at the meeting’ and ‘consensus means general agreement amongst lineages present’. I further note that from the material before me it appears that no issue was raised at the meeting in relation to the participation of non-attendees in the decision-making process. (emphasis added) Secondly [Person 2 - name deleted] and [Person 1 - name deleted] assert that, contrary to what was required by the decision-making process, decisions were not made by consensus. Again, I do not think that this issue is relevant to the resolution authorising the making of this application as it relates to resolutions passed at the first part of the meeting. The relevant resolution was passed at the second part of the meeting without dissent. As such I am not required to consider further the submissions made in the [Person 1/Person 2 – names deleted] interlocutory applications in relation to whether or not the decision-making process required a decision by consensus. In any event I note that in my view the decision-making process agreed to and adopted at the meeting did not require decisions to be made by consensus. Whilst the wording of the resolution, in my view, could have been clearer, it does define ‘consensus’ as ‘not necessarily’ requiring ‘that the decision is agreed upon unanimously’.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 29 Decided: 13 March 2014 In addition, in my view the meeting attendees conducted themselves at the meeting on the basis that they agreed to make decisions by vote which allowed for dissent. In that regard I refer to the observations by the Full Court in Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 at [18] that: ...[s]ection 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question...Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied. (emphasis added)
For the above reasons I am of the view that the decision-making process agreed to and adopted at the meeting was followed by those who attended the authorisation meeting in accordance with the requirements of s. 251B(b).
I am of the view that the requirements of s. 190B(4)(b) are met.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 30 Decided: 13 March 2014 Merit conditions: s. 190B Subsection 190B(2) Identification of area subject to native title The Registrar must be satisfied that the information and map contained in the application as required by ss. 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. The application satisfies the condition of s. 190B(2). Area covered by the application Schedule B of the application refers to Attachment B which is titled ‘Widi People of the Nebo Estate – External Boundary Description’ and is divided into seven portions. Each portion is described by metes and bounds referencing local government boundaries, native title determination application boundaries, lot on plan and geographic points. Attachment B also includes information about specific allotments included in the application. The Geospatial Report concludes that the description in Attachment B and map provided in Attachment C to the application are consistent and identify the application area with reasonable certainty. Having had regard to Attachments B and C, I am satisfied that the external boundaries of the application area have been described such that the location of it on the earth’s surface can be identified with reasonable certainty. Areas not covered by the application—internal boundaries Schedule B of the application lists general exclusions to the land and waters covered by the application. The use of a general formulaic approach, was discussed in Daniel for the Ngaluma People & Monadee for the Injibandi People v Western Australia [1999] FCA 686 (Daniel), in relation to the information required by s. 62(2)(a) and its sufficiency for the purpose of s. 190B(2). Nicholson J was of the view that such an approach ‘could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances’. His Honour noted the difficulty in reconciling the need for detail as specified by s. 62(a)(i) and (ii), the requirements of the registration test at s. 190B(2) and the ‘state of knowledge of the parties at different stages of the application’, but formed the view that consideration of these issues was necessary in order to assess the application against these requirements—at [30] to [38]. In undertaking this consideration, I have had regard to the fact that this is a new application and to information within the application that points to the state of knowledge of the applicant. For instance, Schedule D of the application contains the statement that no tenure searches have been carried out by (or on behalf of) the applicant to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 31 Decided: 13 March 2014 It is in my view appropriate, given the above particularities, that the written description contain general exclusions of the kind at Schedule B. In my view, the written exclusions in Schedule B adequately reflect the state of knowledge of the applicant at this time and they are sufficient to offer an objective mechanism by which to identify those areas of the application that fall within the categories described. Accordingly, it is my view 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 the native title rights and interests are claimed in relation to particular land or waters’. Subsection 190B(3) Identification of the native title claim group The Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application, or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. The application satisfies the condition of s. 190B(3). Under this condition, I am required to be satisfied that one of either s. 190B(3)(a) or (b) has been met. The application does not name the persons in the native title claim group but contains this description in Schedule A:
1. The native title claim group is comprised by the Widi People who, according to traditional laws acknowledged, and customs observed: (a) are traditionally connected with the area described in Schedule B ("the area claimed") through: - spiritual, religious, and physical associations; - biological, classificatory or adoptive descent through the four grandparental lines of father's father, mother's father, father's mother, and mother's mother; and - processes of succession. (b) have communal native title in the application area, from which rights and interests derive.
2. By definition the claimants, in relation to the area claimed, are comprised by all persons descended-from the Widi ancestors identified in paragraph (3).
3. The Widi ancestors referred to in paragraph (2) are more particularly identified as follows: The Native Title Claim Group is described as those Widi People (Wiri Language People of the Nebo Estate) who are the biological or adopted descendants of the following people: a. Jean White, mother of Albert Butterworth; b. Mr Clark ('of Suttor Station') & Jinny (of 'Stockton Station'), whose known children are Charlie Clark and Dick Clark c. Jinny (of 'Stockton Station’), whose known child (with Mr Watson) is Charlie Watson; d. Siblings Tommy Emmerson/Iffley and Arthur Emmerson; e. Roger ('of Nebo district'), whose known child is Emily Rogers; f. Neddy Thorney, whose known child is Sarah Mate Mate nee Thorney/Sauney;
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 32 Decided: 13 March 2014 g. Sophie ('of Nebo'), whose known children are Jack Skeen, William Skeen and Norman Skeen; h. Dick ('of Nebo'), whose known child is Sam Murray; i. Billy ('of Nebo') & Molly (of 'Oxford Downs Station'), whose known children are Jessie and Billy Sullivan; j. Harry Monsell Snr ('of Lake Elphinstone') whose known children are Lily Sullivan, Flora Doyle and Harry Monsell Jnr; k. King ('of Fort Cooper') & Meg ('of Fort Cooper'), whose known children are Johnny, Mick, Mitchell Dalton, Paddy, Emma and Annie; I. Ida, whose known child is Rene Hess ('from Nebo'); m. Maggie, whose known children are Norman Brown Snr, George 'Duke' Barker and Ina Darwin.
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. The task of the Registrar in examining a description of the native title claim group for the purpose of s. 190B(3) was the subject of consideration in Doepel. Its focus is upon the adequacy of the description to facilitate the identification of the members of the native title claim group, rather than upon its correctness—at [37] and [51]. 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: [i]t 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]. In my view, describing the claim group as the ‘descendants’ of certain named persons provides a sufficiently reliable and objective means by which to ascertain a person’s membership of the group. It may be that some factual inquiry may be required to ascertain how members of the claim group are descended from the named apical ancestors, but that would not mean that the group had not been sufficiently described. I am therefore of the view that the native title claim group is described sufficiently clearly to enable identification of any particular person in that group. Subsection 190B(4) Native title rights and interests identifiable The Registrar must be satisfied that the description contained in the application as required by s. 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified. The application satisfies the condition of s. 190B(4). Section 190B(4) requires the Registrar to be satisfied that the description of the claimed native title rights and interests contained in the application is sufficient to allow the rights and interests to be readily identified. The description must be in a clear and easily understood manner—Doepel at [91], [92], [95], [98] to [101] and [123]. An assessment of whether the rights and interests can be
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 33 Decided: 13 March 2014 established, prima facie, as ‘native title rights and interests,’ as defined in s. 223, will be made under s. 190B(6) below. The native title rights and interests claimed appear at Schedule E of the application as follows: The rights and interests claimed in relation to
1) Land and waters where there has been no prior extinguishment of Native Title or where section 238 (the non-extinguishment principle) applies: The native title rights and interests claimed are the right to possession, occupation, use and enjoyment of the claim area as against the whole world, pursuant to the traditional laws and customs of the claim group but subject to the valid laws of the Commonwealth of Australia and State of Queensland.
2) All remaining land and waters within the claim area the Native Title rights and interests claimed are not to the exclusion of all others and are the rights and interests set out in Paragraph 3 below:
3) Native Title rights and interests claimed: a. the right to live on the claim area; b. the right to move about, be present on, travel over and access the claim area; c. the right to cook, camp, erect shelters and other structures in the claim area; d. the right to speak for and make decisions about the claim area; e. the right to control others' access; f. the right to maintain and protect places and areas of importance, such as sacred sites, rock art, camping areas, burial grounds and archaeological remains in the claim area; g. The right to conduct meetings in the claim area; h. the right to use, hunt, fish, gather, take and enjoy natural resources, such as food, water, medicinal plants and trees, tubers, charcoal (made by using fire), firewood, ochre, stone, resin and wax; i. the right to make fire; j. the right to share, exchange or trade resources; k. the right to control others' use and enjoyment of resources; I. the right to engage in cultural activities, such as conducting ceremonies, births, burial rites, and holding meetings; m. the right to teach cultural activities, such as teaching the significance of areas and places of importance; n. the right to maintain, protect and prevent the misuse of cultural knowledge, customs and practices; o. the right to determine and regulate membership of the claimant group.
The application does not include a claim for exclusive possession over previous non-exclusive possession act areas as defined under section 23F of the Native Title Act 1993 save where the Native Title Act 1993 and/or the common law allows such a claim to be part of the Native Title Determination application. It is my view that the native title rights and interests as claimed in the application are understandable and have meaning. The description is sufficient to allow the native title rights and interests to be readily identified.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 34 Decided: 13 March 2014 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. The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5), as set out in my reasons below. I have considered each of the three assertions set out in the three paragraphs of s. 190B(5) in turn before reaching this decision. The nature of the task at s. 190B(5) The Court has established clear principles which must guide the Registrar when assessing the sufficiency of an application’s factual basis material: the applicant is not required ‘to provide anything more than a general description of the factual basis’—Gudjala FC at [92]. the nature of the material provided need not be of the type that would prove the asserted facts—Gudjala FC at [92]. the Registrar is not to consider or deliberate upon the accuracy of the information/facts asserted—Doepel at [47]. the Registrar is to assume that the facts asserted are true, and to consider only whether they are capable of supporting the claimed rights and interests. That is, is the factual basis sufficient to support each of the assertions at s. 190B(5)—Doepel at [17]. Justice Dowsett in Gudjala People # 2 v Native title Registrar [2007] FCA 1167 (Gudjala 2007) and Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009) gave specific content to each of the elements of the test at s. 190B(5)(a) to (c). The Full Court in Gudjala FC did not criticise the approach taken by Dowsett J (Gudjala FC at [90] to [96]). His Honour, in my view, took a consonant approach in Gudjala 2009. I set out the relevant elements of s. 190B(5), as interpreted by Dowsett J, in my assessment below. Dowsett J also held that ‘it was necessary that the alleged facts support the claim that the identified claim group [emphasis added] (and not some other group) held the identified rights and interests (and not some other rights and interests)’—Gudjala 2007 at [39]. This, in my view, confirms the need for adequate specificity within the claimants’ factual basis material in order to satisfy the delegate of its sufficiency for the purpose of s. 190B(5). Information considered
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 35 Decided: 13 March 2014 The applicant has provided the following material in support of the factual basis for the claim made in the application: Schedule F refers to Attachment F and notes that it consists of affidavits from Kenneth Dodd, Linda Wailu, [Person 3 – name deleted] and Graham Sauney and ‘a preliminary anthropological report of [Anthropologist 1 – name deleted] of July 2013’. The cover of [Anthropologist 1 – name deleted]’s report sets out the following title ‘Registration Report for the Widi People of the Nebo Estate, Birri Gubba Region, Central Queensland’. By way of background, I note that the Registration Report on page 4 explains the reason why the claim group which was formerly referred to as the ‘Wiri People’ is now referred to as the ‘Widi People of the Nebo Estate’. The change was made to distinguish the Widi People from other Wiri Language People that belong to different, localised, landowning groupings associated with other estates, for example the Yuwibara People of the Mackay Estate or the Wangan People of the Clermont Estate. Nonetheless, the Widi People and other Wiri Language People all belong to the same regional society, that is, they are all members of the Birri Gubba Society. In total there are ten Birri Gubba subsets. The Registration Report, quoting from Rares J’s determination of the Jangga People’s application (McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082 at [20]) which in turn refers to [Anthropologist 1 – name deleted]’s research, explains that the Birri Gubba society had a ‘clearly recognisable regional system of common languages, traditions, laws and customs within which the smaller tribal entities with their own dialects, as well as individual traditions, laws and customs existed’. On page 24 the Registration Report also notes the recommendations [Anthropologist 1 – name deleted] made in relation to the extent of the Nebo Estate, which lead to the amendment of the Wiri Core Country claim and the lodgment of this application ‘so that portions of the Nebo Estate not currently claimed by the Widi People can be claimed’. I note that the combined area of the Wiri Core Country claim and this application now covers almost all of the Nebo Estate but for one remaining portion on the north-western side that is presently not claimed as it is covered by an active application brought by another group and NQLC, the applicant’s legal representative, has a policy of not lodging overlapping applications.
Reasons for section 190B(5)(a)—that the native title claim group have, and the predecessors of those persons had, an association with the area The Law In my consideration of the applicant's factual basis material for the purposes of the assertion at s. 190B(5)(a), I am of the view that where that material discloses only an association with particular parts of the claim area, this may not be sufficient to meet the requirements of the condition —Martin at [26]. Similarly, the material may be insufficient where it fails to particularise the type of association asserted (it could be physical or spiritual) and contains only broad statements with no geographical particularity—Martin at [26]. The Court discussed the requirements of the factual basis material at s. 190B(5)(a) in Gudjala 2007, where it held that the following kind of information may be necessary to support the assertion: that the claim group as a whole presently has an association with the area, although it is not a requirement that all members must have had an association at all times; and
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 36 Decided: 13 March 2014 that there has been an association between the predecessors of the whole group and the area over the period since sovereignty—at [52]. I note that in Gudjala 2007, Dowsett J commented in relation to the above, that 'even if it be accepted that all members of the claim group are descended from people who had an association with the claim area at the time of European settlement, that says nothing about the history of such association since that time. Some members of the claim group and their predecessors may be, or may have been, so associated, but that does not lead to the conclusion that the claim group as a whole, and their predecessors, were similarly associated'—at [51]. The claimants factual basis material in support of the assertion at s. 190B(5)(a) The Registration Report in part 5 states under the heading ‘NTCG and its predecessors have association with the area’ that the ethnographic, archival and literature connection research undertaken by [Anthropologist 1 – name deleted] evidence that the claim group and its predecessors have and had an association with the Nebo Estate, being essentially the combined area of the Wiri Core Country claim and this claim. The relevant research material is summarised in a table (Figure 10 of the Registration Report) which highlights places in the Nebo Estate associated with successive generations of Widi People from each of the ten lineages identified as being part of the claim group. In addition, the Registration Report includes a map (Figure 7) which shows the locations of the towns and stations listed in the table. The Registration Report concludes that it is evident that the traditional association of Widi People were carried through the 20th century and into the present by successive generations. This is demonstrated, the Registration Report states, by how predecessors of the claim group in interviews with Tindale and also the following generations consistently identified and identify themselves as being ‘of Nebo’ or ‘of the Nebo district’ or of a particular station in the Nebo Estate. In addition the affidavits attached to Schedule F by four members of the claim group provide further details in relation to the past and present association of the Widi People with the claim area. Below is a summary of some of the examples given: [Person 3 – name deleted]: At [21] [Person 3 – name deleted] explains that he has been told by his mother and uncle that Wiri country includes places like Homevale Station, Burton Downs, Nebo, Bungella, Hail Creek and Elphinstone. These places are either within the claim area or in the vicinity of it. At [15] the affidavit refers to [Dreaming Being – name deleted], [Direct quote from affidavit 1 – text deleted], which I understand to be located within or close to portion 4 of this application area. At [4] [Person 3 – name deleted] states that his nana [Person 5 – name deleted] told him the story about [Dreaming Being – name deleted] and where it lived in the waterhole. At [23] he also speaks about a [Direct quote from affidavit 2 – text deleted], which is located within the area of this claim, noting that this is a place that ‘Wiri people strongly identify with’. It is a place he has visited with his uncle and son as well as his grandson and younger brother [24]. At [26] he explains that all Wiri People have the same rights in country, but each of the families have a close association and responsibility for certain parts of country. For his family the close connection is with Homevale Station, Lake Elphinstone and Nebo.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 37 Decided: 13 March 2014 [Person 6 – name deleted]: At [8] he states that he lived five years at Urannah Station which is just outside Portion 4 of the claim area. Three times a year he does spot burning on that station as part of his traditional management of Wiri land. [Direct quote from affidavit 3 – text deleted]. Linda Wailu: At [26] Mrs Wailu also notes the importance of [Direct quote from affidavit 4 – text deleted], that must be protected and that ‘is sacred to us’. At [35] she describes Wiri country, or ‘Nebo muddy water people country’, as including places such as Nebo, Homevale, Greenmount, Lake Elphinstone, Eungella and Burton Downs, places which are located within the claim area or in its vicinity. At [ 55] she notes that she on many occasions has been to most of these places and that Nebo is very special to her family as her [Direct quote from affidavit 5 – text deleted], a place which she has visited with her children and grand children. Graham Ian Sauney: At [8] he states that his father, a well known stock man, worked on Homevale, St Albans, Turrawulla and Exmore pastoral stations which are all located within Wiri country and I can see that they are either within or in close proximity to the claim area. At [43] Mr Sauney states that he lived in Eton which is part of Wiri country and that he has ‘a right to live on my country because my nana [Person 7 – name deleted] was born on and lived on country, my father lived on country and I live on country’. The above quoted material possesses sufficient geographical particularity to support an assertion of an association held by the claim group members and their predecessors with locations within this claim area. Whilst not part of the test before me, I note that the material also supports an assertion of an association held in relation to the whole of the Widi/Wiri People application areas combined. In my view, the fact that this application is brought in addition to the Wiri Core Country claim is significant in this regard and I refer to [Anthropologist 1 – name deleted]’s explanation for bringing this additional claim. The material indicates that there is both a physical and spiritual aspect to the association of the claim group with this claim area (and in relation to the whole of two application areas combined). See for example [Anthropologist 1 – name deleted] and the above affidavits stating that particular members of the claim group live in the area and their predecessors lived and worked there, have been born there or are buried there. Apart from such physical association, the material contains the assertion of a spiritual association with certain places. For example Lake Elphinstone is described as a place sacred to Widi People. The material provides information about the association of at least some of the ancestors listed in Schedule A with the claim area around the time of European settlement which is said to have begun by the early 1860s or in the period shortly after. I understand the material to assert that the situation regarding the association of the claim group members with the area in the period between sovereignty and European settlement remained unchanged. The information before me, in my view, allows me to make the inference that the situation at settlement was the same as at sovereignty. On that basis, I am of the view that the material supports the assertion that at least some of the ancestors had an association with the claim area around the time of European settlement (and all of the apical ancestors had an association with the combined area of the applications at that time). I am further of the view that the material before me is sufficient to support an assertion of an association between the whole group by providing some tangible examples, originating from
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 38 Decided: 13 March 2014 some members of the claim group, of how the whole group and its predecessors have been associated with the area over the period since sovereignty. In summary, I find that I am satisfied on the material before me that the application provides a sufficient factual basis to support the assertion that the group as a whole have, and the predecessors of the group had, an association with the claim area.
Reasons for section 190B(5)(b)—that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests The claimants factual basis material in support of the assertion at s. 190B(5)(b) As noted above, the relevant society is the Birri Gubba society and I refer to my summary of information contained in the Registration Report in relation to this society above. In addition, the Registration Report under the heading ‘Existence and continuity of traditional laws and customs’ states that recent connection research has led [Anthropologist 1 – name deleted] to the conclusion that the society has ten sets of traditional laws and customs. Each has a system comprising formal rules, informal conventions and various arising customary practices that are acknowledged and observed by the members of the society. The report sets out details for each of these sets with regard to the pre-sovereignty society of the Birri Gubba region, their continuity from Initial European Settlement in 1861 to the present and how they give rise to the claim of particular native title rights and interests in the Nebo Estate. Below is a brief summary of the information provided in the registration report in relation to each of these sets, set out as they are presented in the registration report: Social organisation How the society is in fact regional in nature The regional system regulates intergroup activity and is underpinned by certain commonalities or broadly consistent and harmonised systems of recruitment to land-owning groupings, land tenure, kinship, class, totems, marriage, punishment for transgression, age, gender and knowledge based authority and religious beliefs. Pursuant to such commonalities, Bura Groupings have a set of traditional laws and customs by which they can negotiate and undertake activities such as trade, travel, encampment on other’s land, intermarriage, festivities, ceremonies of male or female initiation and mortuary rites. The regional system adapted to Initial European Settlement and the Birri Gubba Region over the 20th century came to comprise three sub-regions: the Western, Northern and Southern and their respective sub-sets. The regional system gives rise to the claimed native title rights and interests to control others’ access to the land and waters, their use and enjoyment of resources and the right to share, exchange or trade resources. How it obtains its members through recruitment to a localized, land-owning grouping (a ‘subset’) It is highly likely that the pre-sovereignty society used either patrifiliation or patrilineal descent as a principal rule governing recruitment to the Bura Groupings. Initial European Settlement resulted in significant changes to the circumstances as the society had to address situations whereby children were being fathered by men, or being born to women, outside the society. In response, parental filiation became the governing rule. This system gives rise to the claimed
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 39 Decided: 13 March 2014 native title right to determine and regulate membership of the Widi People and thus who holds rights and interests in the lands and waters of the Nebo Estate. How each subset owns a defined tract of land and waters The Birri Gubba Region was occupied by groupings more or less evenly spaced out along the waterways. Bura groupings were adaptable and there are examples of succession or movement to other tracts of land or changes to the names of Bura groupings which demonstrate that the pre- sovereignty society was adapting to the changes caused by Initial European Settlement in 1861. This adaption was pursuant to the traditional laws and customs of the society. The decline of Aboriginal populations over subsequent decades eventually meant that the framework of Bura Groupings was no longer viable and consequently remnant populations coalesced into enlarged Bura Groupings (which were recorded by Tindale as tribes in 1938). Since the advent of native title and cultural heritage management work substantially controlled by and involving Aboriginal people, there has been a renewed use of the tribal names. This is why contemporary Birri Gubba People will employ terms like Jangga and Widi. The system of land tenure gives rise to the claimed native title rights referred to in Schedule E as rights 3) a) to l). Regulating the activity of the subsets and interaction between them Kinship A description of the system is provided. The kinship system does not have any associated native title rights and interests. Class There are two moieties, each moiety comprises two classes and each class has a male and female version of its name so that gender can be distinguished. Every Bura Grouping has its own unique set of moiety and class names. A person’s moiety is determined by their mother’s moiety. The class system is linked to the marriage system and the totemic system. The system is currently evidenced in two ways: totemic attributions and an adapted form governs the marriage between the families that constitute the Birri Gubba society. The class system gives rise to the claimed native title right to determine and regulate the membership of the Widi People and thus who holds rights and interests in the lands and waters of the Nebo Estate. Totems There are different types of totems: moiety-based, class-based, personal and bura totems. Certain totems are the basis for the allotment of certain foodstuffs. Totems are also the basis for restricting people’s consumption of certain foodstuffs. A person holds certain totems of theirs to be sacred and must protect them and should not kill or eat them. Certain totems are used for supernatural means and provide omens about upcoming events. The totemic system is still acknowledged and observed by the Widi People in terms of both, the existence of personal and group totems, and of the taboos concerning the killing and eating of one’s totem. There is also continuity of certain (supernatural) customs derived from totemism. The totems system gives rise to the claimed native title right to use, hunt, fish, gather, take and enjoy resources and to control others’ use and enjoyment of them. Marriage
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 40 Decided: 13 March 2014 There is an elaborate set of traditional laws and customs in relation to marriage, including that marriage must be in accordance with the class system. A person who marries or partners with a Birri Gubba person, for the time of their marriage has certain native title rights and interests. Punishment for transgressions The society has an elaborate set of rules and conventions about punishing any transgressions of its traditional laws and customs. Essentially there are two forms of punishment: through human action or by supernatural means. The former has been either replaced by English Common Law for acts against persons or property or has been abandoned or there is reliance on shaming and/or shunning. Punishment through supernatural means is still acknowledged and observed. The system of punishment for transgressions gives rise to the native title rights and interests listed in Schedule E 3) d), e), f), k) and n). Age, gender and knowledge based authority Several historic accounts reveal aspects of the system of age-, gender- and knowledge-based authority of the pre-sovereignty society and examples of are given of how this system is pronounced in contemporary Birri Gubba society. The system gives rise to the native title rights claimed in Schedule E 3) d), f), l), m) and n). Religious beliefs The system of religious beliefs generated a large number of traditional laws and customs. They are most apparent in relation to male and female initiation, rituals pertaining to death, sorcery and mythology. Ceremonial activity associated with a person’s death is also relatively well recorded. The rituals fall into three categories: mourning, mortuary and post-death practices. Mourning practices included women cutting themselves until they bleed and man covering their bodies with bark charcoal mixed with animal fat. Mortuary practices are determined by age, gender and status of the deceased and the circumstances of their death. Post death practices include that after a person’s death their people’s camp was moved due to the fear that the deceased’s ghost will trouble the living and there is a prohibition of speaking the name of the deceased. Examples are given of contemporary Widi People’s spiritual practices such as smoking ceremonies to cleanse people and places of bad spirits and the protection of spiritually important places within the Nebo Estate. The system of religious beliefs gives rise to the claimed native title rights in Schedule E 3) e), f), k), l), m) and n). Consideration The above factual basis material identifies the relevant pre-sovereignty society, being the Birri Gubba society, as the society of people living according to a system of identifiable laws and customs, having a normative content. The Widi People, the claim group, are part of this society. The apical ancestors of the claim group are said to have been members of this society and had an association with the claim area or the area claimed in the Wiri core country claim at the time of European settlement. As such, the factual basis material explains the link between the claim group and the claim area and identifies the relevant pre-sovereignty society from whom it is asserted the claim group’s laws and customs derive. The material describes the ten sets of traditional laws and customs of the pre-sovereignty Birri Gubba society in detail and also sets out how they have been continuously acknowledged and observed by past and current members of the Widi People.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 41 Decided: 13 March 2014 For the above reasons I am of view that the factual basis material is sufficient to support the assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests.
Reasons for s 190B(5)(c)—that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. The Law Section 190B(5)(c) requires me to 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 as giving rise to claimed native title rights and interests; see Yorta Yorta at [47] and also at [87]. The claimants factual basis material in support of the assertion at s. 190B(5)(c) As noted above, the Registration Report in part 5 contains information in relation to the factual basis for the assertion that the society in existence at sovereignty has continued despite interruption by European settlement and specifically addresses the question of continuity from Initial European Settlement in 1861 to the present. Part 6 sets out, under the heading of the specific native title rights and interests claimed, examples of the exercise of the rights by current members of the claim group and previous generations. In addition, the affidavits provided as part of Attachment F also include examples of members of the claim group and their predecessors having continued to hold their native title rights and interests in accordance with their traditional laws and customs. There are numerous examples in the factual basis material about the transmission of knowledge. Consideration From the material I understand that the members of the claim group continue to acknowledge and observe the traditional laws and customs passed on to them by their ancestors or predecessors by traditional modes of oral transmission, teaching and common practice. This continues today amongst claim group members. Having considered the material I am satisfied that the factual basis provided is sufficient to support an assertion that the members of the claim group and their predecessors have continued to hold native title in accordance with the traditional laws and customs.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 42 Decided: 13 March 2014 Combined result for s. 190B(5) The application does satisfy the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5), as set out in my reasons above. Subsection 190B(6) Prima facie case The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. The application satisfies the condition of s. 190B(6). 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). 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].
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: 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’.
I also need to consider the case law relating to extinguishment when examining each individual right and interest claimed. Any 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. The registration test is an administrative decision—it is not a trial or hearing of a determination of native title pursuant to s. 225, and therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is also not my role to draw definitive conclusions from the material before me about whether or not the claimed native title rights and interests exist, only whether they are capable of being established, prima facie.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 43 Decided: 13 March 2014 In summary, s. 190B(6) requires me to carefully examine the asserted factual basis provided for the assertion that the claimed native title rights and interests exist against each individual right and interest claimed in the application to determine if I consider, prima facie, that they: exist under traditional law and custom in relation to any of the land or waters under claim; are native title rights and interests in relation to land or waters (see chapeau to s. 223(1)); and have not been extinguished over the whole of the application area. In my consideration of the individual rights and interests claimed: I take into account information contained in the application on activities conducted by the members of the claim group. While current activities by claimants in 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; and I have grouped together rights which appear to be of a similar character and therefore rely on the same evidentiary material or rights which require consideration of the same law as to whether they can be established. 1. Exclusive rights and interests I first consider the claim to ‘exclusive possession’. 1. Land and waters where there has been no prior extinguishment of Native Title or where section 238 (the non-extinguishment principle) applies:
The native title rights and interests claimed are the right to possession, occupation, use and enjoyment of the claim area as against the whole world, pursuant to the traditional laws and customs of the claim group but subject to the valid laws of the Commonwealth of Australia and State of Queensland. Ward HC is authority that the ‘exclusive’ rights can potentially be established prima facie in relation to areas where there has been no previous extinguishment of native title or where extinguishment is to be disregarded as a result of the Act. The majority in Ward HC considered that ‘[t]he expression “possession, occupation, use and enjoyment… to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land’ (emphasis added). Further, that expression (as an aggregate) conveys ‘the assertion of rights of control over the land’, which necessarily flow ‘from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country’ – at [89] and [93]. The Full Court in Griffiths v Northern Territory (2007) 243 ALR 7 indicates that the question of exclusivity depends upon the ability of the native title holders to effectively exclude from their country people not of their community, including by way of ‘spiritual sanction visited upon unauthorised entry’ and as the ‘gatekeepers for the purpose of preventing harm and avoiding injury to country’—at [127]. The Registration Report in part 6, which is said to address the requirements of s. 190B(6) and sets out certain claimed native title rights and interests, does not specifically mention the right to exclusive possession as expressed in Schedule E 1). I note, however, that reference is made to the ‘right to speak for and make decisions about [the claim area]’ and the ‘right to control others’ access’ and that that part of the report provides information about the contemporary exercise of
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 44 Decided: 13 March 2014 these rights: In recent years the right to speak for and make decisions about the land and waters of the Nebo Estate is primarily illustrated by the range of cultural heritage management plans and Indigenous Land Use Agreements (ILUAs) negotiated, executed and implemented by Widi People – at [210]. The right to control others’ access is evidenced by Widi People inviting friends and other Birri Gubba people to accompany them on visits to country, to visit and stay at Urannah (once it was acquired for them by the ILC), or even participate in cultural heritage work on-country (as happens with elders from neighbouring Birri Gubba subsets). In doing so they teach others about dangerous places on-country, such as where [Direct quote from affidavit 6 – text deleted]. In addition, part 5 of the Registration Report, as noted above, explains how the particular traditional laws and customs of the Birri Gubba society give rise to the native title rights and interests claimed. In my view this part of the Registration Report provides sufficient information to establish the existence of an exclusive right of possession, occupation, use and enjoyment in relation to the application area as a whole. In particular I refer to the reference in part 5 at [134] to the use of message sticks to invite others to one’s country to share in its resources and to formally offer the use of one’s property and at [151] to the territorial behaviour of the Bura groupings recorded in historical records which state that in the 1860s some of the Aboriginal people in the area offered the encroaching settlers to enter into a pact whereby the settlers had the area south of the Burdekin River while the local Aboriginal people had the area to the north. According to [Anthropologist 1 – name deleted] such a treaty demonstrates an inherent right of ownership of land and waters, as well as an inherent right to dispose of that right through negotiation with others.
In relation to the claim of exclusive rights in relation to waters I note the following: The control and use of natural water resources in Queensland is the subject of extensive statutory intervention (for example, the Water Act 2000 (Qld)) and any exclusive native title right is unlikely to have survived in relation to waters. In my view, any native title rights in relation to waters would be non-exclusive only. I am supported by the many consent determinations in Queensland which only recognise non-exclusive native title rights over waters, most recently in September 2013 in Brady on behalf of the Western Yalanji People #4 v State of Queensland [2013] FCA 958.
I therefore find that prima facie the exclusive rights claimed are established over areas where there has been no prior extinguishment of Native Title or where section 238 (the non- extinguishment principle) applies and only to the extent that it does not cover flowing water resources. Outcome: established, prima facie
2. Non-exclusive rights and interests I now turn to the claim to non-exclusive rights over areas where a claim to exclusive possession cannot be recognized: (a)—the right to live on the claim area (b) —the right to move about, be present on, travel over and access the claim area
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 45 Decided: 13 March 2014 (c)—the right to cook, camp, erect shelter and other structures on the claim area In my view the Registration Report and the affidavits in Attachment F provide evidence that there are traditional laws and customs acknowledged and observed by the claim group that relate to and regulate the above native title rights and interests. I refer to my discussion above at s. 190B(5)(b) which refers to the particular laws and customs which are said to give rise to these rights. The material also contains information about activities which occur on the application area (and the wider area of the Nebo Estate) which necessarily require access to, travel over and being present on and moving about the application area and evidences that members of the claim group and their predecessors lived or are still living on the claim area. The Registration Report provides in part 6 under the headings of the above claimed rights contemporary examples of the exercises of the above rights, including that numerous members of the claim group have moved about, been present on, travelled over and accessed the claim area during their childhood in the 1950s or over the last decade whilst undertaking cultural heritage management work or as stockmen on various stations. Reference is also made to the town camp along Nebo Creek where one of the claimants camped in the humpies during her visits and short stays as a child. The affidavits attached to Attachment F provide examples of current exercises of the above rights. Outcome: established, prima facie (h)—the right to use, hunt, fish, gather, take and enjoy natural resources, such as food, water, medicinal plants and trees, tubers, charcoal (made by using fire), firewood, ochre, stone, resin and wax (i)—the right to make fire (j) —the right to share, exchange or trade resources The material before me establishes, prima facie, that these rights exist under the traditional laws and customs of the claim group. As noted above, the Registration Report in part 5 sets out in detail the relevant laws and customs which give rise to the above rights and interests. It also contains examples in part 6 of the contemporary exercise of these rights. Such examples are also contained in the affidavits in Attachment F. For example [Person 3 – name deleted] in his affidavit states that he goes back to Wiri country as often as he can, generally two to three times a year. He has taken his children and grand children there and taught them to hunt and gather the same way he has been taught by his uncles. They hunt for, for example, kangaroo, porcupine, wallaby, goanna, plain turkey, crayfish and mussels. In his affidavit he explains how to prepare some of these over the fire. His totem is the [Totem – name deleted] and he has taught his children and grandchildren that they cannot eat [Totem – name deleted]. [Person 3 – name deleted] also collects ochre [Direct quote from affidavit 7 – text deleted] on wood. In addition, in his Registration Report [Anthropologist 1 – name deleted] states at [217] that the sharing, exchanging or trading of resources from the Nebo Estate was referred to by several interviewees when he did his field work, for example to friends and family claimant [Person 8 – name deleted] shares medicine created from the [Direct quote from affidavit 8– text deleted] leaves.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 46 Decided: 13 March 2014 Outcome: established, prima facie (g)—the right to conduct meetings in the claim area (l)—the right to engage in cultural activities, such as conducting ceremonies, births, burial rites and holding meetings The material before me establishes, prima facie, that these rights exist under the traditional laws and customs of the claim group. As noted above, the Registration Report in part 5 sets out in detail the relevant laws and customs which give rise to the above rights and interests. Part 6 notes as an example of the contemporary exercise of these rights that ‘recently’ [noting that the report was written in 2013] a smoking ceremony was held at Nebo during the [Direct quote from affidavit 9 – text deleted]. Further examples are also contained in the affidavits in Attachment F. Outcome: established, prima facie (f)—the right maintain and protect places and areas of importance, such as sacred sites, rock art, camping areas, burial grounds and archaeological remains in the claim area The Registration Report and affidavits in Attachment F contain evidence that the Widi People of the Nebo Estate protect and maintain places of cultural importance, for example, by undertaking cultural heritage management work. The example given in the Registration Report in part 6 in relation to this right is the survey and assessment work undertaken by 16 claim group members in relation to a proposed rail corridor running across the Nebo Estate. The affidavits also refer to specific sites and rock art and that these places must be protected. For example [Person 5 – name deleted] refers to [Direct quote from affidavit 10 – text deleted]. Outcome: established, prima facie (d)—the right to speak for and make decisions about the application area (e)—the right to control others’ access (k)—the right to control others’ use and enjoyment of resources As noted above, I find that prima facie the exclusive rights claimed in Schedule E(1) are established over areas where there has been no prior extinguishment of Native Title or where section 238 (the non-extinguishment principle) applies and only to the extent that it does not cover flowing water resources. In my view the above rights are not capable of being established non-exclusively, as claimed in Schedule E(3)(d) for the reason set out in Sampi v State of Western Australia [2005] FCA 777 at [1072]: the right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for the land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation. and Ward HC at [88]: a core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to posses, occupy, use and enjoy land to the exclusion of all others— see also at [90] – [93].
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 47 Decided: 13 March 2014 I also note that in Neowarra v State of Western Australia [2003] Sundberg J was of the view that ‘the right to speak for country involves a claim to ownership’ and could only be recognised in relation to areas of exclusive native title rights and interests —at [494]. In contrast to the rights claimed in this application, I note that in Attorney General of the Northern Territory v Ward [2003] FCAFC 283 (Ward FC), the Court in making a consent decision recognised a similar, but qualified right ‘to make decisions about the use and enjoyment of land by Aboriginal people who will recognise those decisions and observe them pursuant to their traditional laws and customs’ as a non-exclusive right—at [27]. Also in Jango v Northern Territory of Australia [2006] FCA 318 (Jango), Sackville J considered that he was bound by the Full Court in Ward FC and held that a non-exclusive right ‘to make decisions about the use or enjoyment of the Application Area by Aboriginal people who are governed by the traditional laws and customs of the Western Desert bloc’ could be recognised—at [571]. Given the way the claim rights are expressed, for the reasons outlined above, I am not satisfied, that the above claimed rights can be prima facie established in relation to areas where a right to exclusively possess, occupy, use and enjoy is not claimed. Outcome: not established, prima facie (m)—the right to teach cultural activities, such as teaching the significance of areas and places of importance (n)—the right to maintain, protect and prevent the misuse of cultural knowledge, customs and practices The Court in Ward HC found the following in relation to rights expressed in a similar way to these right: To some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land found in par (b) of the definition in s 223(1) of the NTA. However, it is apparent that what is asserted goes beyond that to something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1). The "recognition" of this right would extend beyond denial or control of access to land held under native title. It would, so it appears, involve, for example, the restraint of visual or auditory reproductions of what was to be found there or took place there, or elsewhere. It is here that the second and fatal difficulty appears. In Bulun Bulun v R & T Textiles Pty Ltd [49], von Doussa J observed that a fundamental principle of the Australian legal system was that the ownership of land and ownership of artistic works are separate statutory and common law institutions. That is the case, but the essential point for present purposes is the requirement of "connection" in par (b) of the definition in s 223(1) of native title and native title rights and interests. The scope of the right for which recognition by the common law is sought here goes beyond the content of the definition in s 223(1)—at [59] to [60]. In my view, the way the above rights are expressed without a reference to them applying to the land and waters claimed, means that they cannot be distinguished from the rights disallowed in Ward HC at [60]. I am therefore for the view that they cannot be established prima facie. Outcome: not established, prima facie
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 48 Decided: 13 March 2014 o)—the right to determine and regulate membership of the claiming group In my view the above is part of the claim group’s laws and customs rather than a right or interest in relation to land or waters—Alyawarr at [165]. Outcome: not established, prima facie Conclusion I am satisfied, having considered all the information before me, that some of the rights and interests claimed can be prima facie established under s. 190B(6) and should be registered. These rights seem to sit within the definition of native title rights and interests in s. 223 and I note also have not been found by the courts to fall outside the scope of that section. 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: (i) the Crown in any capacity, or (ii) a statutory authority of the Crown in any capacity, or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease. The application satisfies the condition of s. 190B(7). This section requires that the evidentiary material be capable of satisfying the Registrar of a particular fact(s), specifically that at least one member of the claim group ‘has or had a traditional physical connection’ with any part of the claim area. While the focus is necessarily confined, as it is not commensurate with that of the Court in making a determination, it ‘is upon the relationship of at least one member of the native title claim group with some part of the claim area’—Doepel at [18]. I also understand that the term ‘traditional,’ as used in this context, should be interpreted in accordance with the approach taken in Yorta Yorta—Gudjala 2007 at [89]. In interpreting connection in the ‘traditional’ sense as required by s. 223 of the Act, the members of the joint judgment in Yorta Yorta felt that: [T]he connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs … ”traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty—at [86]. Attachment F, in particular the Registration Report, contain many examples of claimants having a traditional physical connection with the application area. I refer to my reasons at ss. 190B(5) and (6) above.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 49 Decided: 13 March 2014 I am satisfied that at least one member of the claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. Subsection 190B(8) No failure to comply with s. 61A The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s. 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.
Section 61A provides: (1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title. (2) If : (a) a previous exclusive possession act (see s. 23B) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23E in relation to the act; a claimant application must not be made that covers any of the area. (3) If: (a) a previous non-exclusive possession act (see s. 23F) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23I in relation to the act; a claimant application must not be made in which any of the native title rights and interests confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others. (4) However, subsection(2) and (3) does not apply if: (a) the only previous non-exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and (b) the application states that ss. 47, 47A or 47B, as the case may be, applies to it. The application satisfies the condition of s. 190B(8). I explain this in the reasons that follow by looking at each part of s. 61A against what is contained in the application and accompanying documents and in any other information before me as to whether the application should not have been made.
Reasons for s. 61A(1) Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. In my view the application does not offend the provisions of s. 61A(1). The Geospatial Report states that no determinations of native title fall within the external boundaries of this application area. I agree with this assessment.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 50 Decided: 13 March 2014 I have also undertaken a more recent Geospatial database iSpatialView search of the Tribunal’s mapping database to confirm the accuracy of this information.
Reasons for s. 61A(2) Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply. In my view the application does not offend the provisions of s. 61A(2). Schedule B(2) of the application contains a number of general exclusions. In my view these exclusions encompass any areas covered by a previous exclusive possession act, other than in the circumstances described in subparagraph (4).
Reasons for s. 61A(3) Section 61A(3) provides that an application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where a 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). Schedule B(4) of the application states that exclusive possession is not claimed over areas which are subject to valid previous non-exclusive possession acts done by the Commonwealth or the State, unless the circumstances in s. 61A(4) apply. Subsection 190B(9) No extinguishment etc. of claimed native title The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that: (a) a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or (b) the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or (c) in any case, the native title rights and interests claimed have otherwise been extinguished, except to the extent that the extinguishment is required to be disregarded under ss. 47, 47A or 47B. The application satisfies the condition of s. 190B(9), because it meets all of the three subconditions, as set out in the reasons below.
Reasons for s. 190B(9)(a): The application satisfies the subcondition of s. 190B(9)(a). Schedule Q of the application states that no claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown.
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 51 Decided: 13 March 2014 Reasons for s. 190B(9)(b) The application satisfies the subcondition of s. 190B(9)(b). Schedule P of the application states that the application does not claim exclusive possession of all or part of an offshore place.
Reasons for s. 190B(9)(c) The application satisfies the subcondition of s. 190B(9)(c). Schedule B of the application provides for a number of categories of areas of land and waters to be excluded from the application area, namely those where native title rights and interests have been extinguished. The application does not disclose, and I am not otherwise aware, that the native title rights and interests claimed have otherwise been extinguished.
[End of reasons]
EDITED REASONS for decision: QC13/006—Widi People of the Nebo Estate—QUD492/2013 Page 52 Decided: 13 March 2014