Registration test decision Native title determination Maduwongga People application Applicant Marjorie May Strickland and Anne Joyce Nudding Federal Court No. WAD90/2014 NNTT No. WC2014/002 As required by s 190A(1) of the Native Title Act 1993 (Cth) (the Act),1 I have considered the claim made in the Maduwongga People native title determination application, in accordance with s 190A, against each of the conditions contained in ss 190B and 190C of the Act. This document comprises notice to the applicant and to the Federal Court under s 190D(1) and a statement of my reasons for the decision not to accept the claim for registration, which I have made under s 190A(6B). For the purposes of ss 190D(3)(a) and (b) of the Act, my opinion is that: The claim for registration does not satisfy all of the conditions of s 190B. In my opinion the claim does not satisfy the conditions of ss 190B(2), (5), (6) and (7). Although the claim for registration does not satisfy the condition of s 190C(2), it was nonetheless possible to determine whether the claim satisfies all of the conditions in s 190B. The claim for registration satisfies the conditions of ss 190B(3), (4), (8) and (9) and the conditions of ss 190C(3) and (4). ___________________________________ Susan Walsh, delegate of the Native Title Registrar 21 July 2014 1 All references to legislative sections refer to the Native Title Act 1993 (Cth), as in force on the day this decision is made, unless otherwise specified. Shared country, shared future. Introduction [1] On 17 April 2014, Marjorie May Strickland and Anne Joyce Nudding made the Maduwongga People native title determination application as an ‘applicant’ claiming to be ‘authorised’ by a ‘native title claim group’.2 The claim is on behalf of the native title claim group described in Schedule A of the application as ‘the descendants of Kitty Bluegum’. The claim relates to an area of land and waters in the Eastern Goldfields region of Western Australia. [2] On 22 April 2014, the Registrar of Federal Court (Federal Court) provided a copy of the application and accompanying documents to the Native Title Registrar (Registrar) under s 63 of the Act, thereby triggering the duty of the Registrar under s 190A(1) to consider the claim for registration in accordance with the provisions of s 190A. Section 190A(6B) provides that the Registrar must not accept the claim for registration if it does not satisfy all of the conditions of s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters). [3] My decision, as a delegate of the Registrar made under an instrument of delegation pursuant to s 99 of the Act dated 30 July 2013, is that the claim for registration does not satisfy all of the conditions of ss 190B and 190C. My reasons in relation to each of the conditions of ss 190B and 190C now follow. 190B Registration: conditions about merits of the claim Section 190B(2): Identification of area subject to native title [4] The claim does not satisfy the condition of s 190B(2). [5] Paragraph 190B(2) provides: The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. [6] Paragraphs 62(2)(a) and (b) provide that the application must contain the following details: (a) information, whether by physical description or otherwise, that enables the boundaries of: (i) the area covered by the application; (ii) any areas within those boundaries that are not covered by the application ; to be identified; (b) a map showing the boundaries of the area mentioned in subparagraph (a)(i). 2 The terms ‘applicant’, ‘authorised’ and ‘native title claim group’, as they relate to a claimant application to the Federal Court under s 13(1)(a) for a determination of native title in relation to an area for which there is no approved determination of native title, are found in ss 61(1), (2) and (4) of the Act. Page 2 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [7] In summary, I am satisfied as to the sufficiency of the details in the application that comprise a technical description of, and a map showing, the boundaries of the area covered by the application.3 I am also satisfied that part of the written description of areas within the boundaries that are not covered by the application is sufficient.4 However, the concluding paragraph 5 of Schedule B raises uncertainty in my mind as to whether the application covers an area in the northern section shown on the map in Attachment C. Details required by ss 62(2)(a)(i) and (b) concerning boundaries of area covered by application [8] The application contains the details required by ss 62(2)(a)(i) and (b) within Attachment B (a technical description of the boundaries of the area covered by the application, using a series of geographic coordinates) and Attachment C (a map showing the boundaries, using a bold line over a topographic overlay). This information shows that the boundaries commence at a point in the north-east of an area within the Eastern Goldfields that is proximate to Kirgella Rocks; that the boundary then travels in a generally southerly and easterly direction to a point proximate to Gnarlbine Rocks and then in a generally northerly and westerly direction to a point proximate to Mulline Rock; and that the boundary then travels in a generally easterly, then north easterly and south easterly direction back to the point of commencement. The point of commencement and boundary line is clearly shown on the map in Attachment C. The map contains geographic coordinates, a north point, scale and topographic overlay showing the towns, lakes, roads and other features. The map and technical description are consistent with each other. In my view, they together provide sufficient certainty to locate the external boundaries of the area covered by the application on the earth’s surface. Details required by s 62(2)(a)(ii) concerning areas not covered by application [9] I must also assess the sufficiency of the details required by paragraph 62(2)(a)(ii) for any areas within the boundaries that are not covered by the application. I shall refer to these areas as ‘the internal excluded areas’. The application contains a generic description of the internal excluded areas within paragraphs 1 to 4 of Schedule B. [10] Paragraphs 1 and 2 employ the terminology of the Act to exclude areas within the boundaries affected by acts that have extinguished native title (e.g. ‘category A past acts’ and ‘previous exclusive possession acts, as defined in s 23B’). Paragraph 3 provides for the exclusion of any other area where native title rights and interests have been ‘wholly extinguished’. Paragraph 4 contains the proviso that where the ‘non-extinguishment principle defined in s 238 applies’ (including ss 47, 47A and 47B) to any areas affected by the extinguishment identified in paragraphs 1 to 3, such that the extinguishment must be disregarded, then the areas are included within the application area. 3 The details in Attachments B and C of the application 4 The details in paras 1 to 4 of Schedule B of the application Page 3 of 42 Maduwongga People (WAD90/2014) 21/7/2014 [11] Nicholson J in Daniel for the Ngaluma People & Monadee for the Injibandi People v Western Australia [1999] FCA 686 (Daniel) was satisfied that a generic description of internal excluded areas such as that contained in this application met s 62(2)(a)(ii). Lindgren J made a similar decision at [8] of Harrington-Smith on behalf of the Wongatha People v Western Australia (No 5) (2003) 197 ALR 138; [2003] FCA 218 (Harrington-Smith No 5). I note that both Daniel and Harrington-Smith No 5 considered whether a general description of internal excluded areas met s 62(2)(a)(ii), not s 190B(2). In my view, s 190B(2) may impose a more onerous standard of ‘reasonable certainty’ so that the ‘particular5 land or waters where native title rights and interests are claimed’ are capable of being ascertained. However, there are indications in Nicholson J’s reasons in Daniel that a generic exclusion could meet the test at s 190B(2), particularly where the proceedings are at an early stage and the applicant is not in possession of the facts relating to extinguishment to more particularly delineate the internal excluded areas. At [31] of Daniel, Nicholson J found: ‘Parliament has made clear that s 62 requires claimant applications to be approached with attention to "detail"’. His Honour noted the interaction between: (a) s 62(2)(a), which requires detailed information within the application identifying the boundaries of the area and information as to areas not covered by the application (b) s 190B(2), which requires an assessment by the Registrar of whether that information is sufficient for it to be said where the native title rights and interests are claimed within the outer boundaries [12] In relation to ss 62(2)(a) and 190B(2), his Honour held at [32] of Daniel that: These requirements are to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment to an application is made.