National Native Title Tribunal NATIONAL NATIVE TITLE TRIBUNAL REGISTRATION TEST REASONS FOR DECISION DELEGATE: Chris Loorham Application Name: Mualgal People Names of Applicant(s): Mr John Henry Manas Region: Far North Queensland NNTT No.: QC96/20 Date Application Made: 17/06/96 Federal Court No.: QG6035 of 1998 The delegate has considered the application against each of the conditions contained in s.190B and s.190C of the Native Title Act 1993 (C’th). DECISION – Mualgal People The application is NOT ACCEPTED for registration pursuant to s.190A of the Native Title Act 1993 (C’th). March, 2001 Chris Loorham Date of Decision Delegate of the Registrar pursuant to sections 190, 190A, 190B, 190C, 190D National Native Title Tribunal Brief History of the Application The original application was lodged with the National Native Title Tribunal on 17/06/96. An amended application was lodged with the National Native Title Tribunal on 23 September 1998. A consent determination of native title in regard to part of the area of this application was made on 12/02/99 by Justice Drummond of the Federal Court. Since the determination over part of the claim area, the applicant has filed two further amended applications in the Federal Court. Details of the amendments are as follows: • notice of motion to amend, together with an amended application, filed in the Federal Court on 30/8/00. On 19/09/00, Deputy District Registrar Robson of the Federal Court in Brisbane granted leave to the applicant to amend the application. This amendment excluded islands described in schedule B covered by an overlapping claim on behalf of the Naghir people (QC96/77). • notice of motion to amend, together with an amended application, filed in the Federal Court on 25/10/00. On 8/11/00, Deputy District Registrar Robson of the Federal Court in Brisbane granted leave to the applicant to amend the application. This amendment excluded islands and land masses described in schedule B covered by an overlapping claim on behalf of the Badu people (QC96/63). Information considered when making the Decision In determining this application I have considered and reviewed the application and all of the information and documents from the following files, databases and other sources: • The National Native Title Tribunal’s Working Files, Administration File, Legal Services File and Registration Testing File for QC96/20, including original application lodged 17/6/96 • Tenure information acquired by the Tribunal in relation to the area covered by this application (if any). • The National Native Title Tribunal’s Working files and related materials for native title applications that overlap the area of this application (if applicable); • The National Native Title Tribunal Geospatial Database; • The Register of Native Title Claims and Schedule of Native Title Applications; • The Native Title Register; • Federal Court Order and Reasons for Judgment by Justice Drummond dated 12/2/99; • Amended application lodged with National Native Title Tribunal on 23/9/98, together with letter from legal representatives dated 22/9/98, document enclosed with that letter entitled ‘List of Amendments to QC96/20 and affidavit by the applicant sworn 16/9/98. Copies of the material referred to in the last dot point, provided directly by the applicant for my consideration in the application of the registration test in QC96/20, has been provided to the State. This is in compliance with the decision in State of Western Australia v Native Title Registrar & Ors [1999] FCA 1591 – 1594. The State has not provided any comments in response to the contents of this material. Note: I have not considered any information and materials provided in the context of mediation of the group’s native title application. This is due to the without prejudice nature of mediation Reasons for Decision (Page 2 of22) National Native Title Tribunal communications and the public interest in maintaining the inherently confidential nature of the mediation process. All references to legislative sections refer to the Native Title Act 1993 unless otherwise specified. A. Procedural Conditions s.190C(2) Information, etc., required by section 61 and section 62: The Registrar 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. Details required in section 61 s.61(3) Name and address for service of applicant Reasons relating to this sub-condition The name of the applicant and his address for service are detailed at the commencement and at Part B of the application. Result: Requirements met s.61(4) Names the persons in the native title claim group or otherwise describes the persons so that it can be ascertained whether any particular person is one of those persons Reasons relating to this sub-condition Para. A5 of the 23/9/98 amended application describes the native title claim group. For the reasons which led to my conclusion (below), that the requirements for s.190B(3) have not been met I find that that the persons in the native title claim group are not described sufficiently clearly so that it can be ascertained whether any particular person is in that group. Result: Requirements not met s.61(5) Application is in the prescribed form, filed in the Federal Court, contains prescribed information, and is accompanied by any prescribed documents Reasons relating to this sub-condition The amended application is in the form prescribed by Regulation.5(1)(a) Native Title (Federal Court) Regulations 1998. As required under s61(5)(b), the amended application was filed in the Federal Court. The application prior to 30/9/98 is taken to have been made to the Federal Court in accordance with Table A, Application, Savings or Transitional Provisions, item 6 case 3. The application meets the requirements of s.61(5)(c) and contains all information prescribed in s.62. I refer to my reasons in relation to those sections. As required by s.61(5)(d) the application is accompanied by an affidavit as prescribed by s.62(1)(a) and a map as prescribed by s.62(2)(b). I refer to my reasons in relation to those sections of the Act. Reasons for Decision (Page 3 of22) National Native Title Tribunal I note that s.190C2 only requires me to consider details, other information and documents required by sections 61 and 62. For the reasons outlined above, it is my view that the requirements of s.61(5) have been met. Result: Requirements met Details required in section 62(1) s.62(1)(a) Affidavits address matters required by s.62(1)(a)(i) – s.62(1)(a)(v) Reasons relating to this sub-condition The applicant has provided an affidavit with the application lodged with the NNTT on 23/9/98. This affidavit was made on 16/9/98. I am satisfied that the affidavit satisfactorily addresses the matters required by s.62(1)(a)(i)-(iii) at paras. 17.1, 17.2, and 18 of the affidavit. I am satisfied that the affidavit satisfactorily addresses the matters required by s62(1)(a)(iv) & (v) at paras. 8-16 of the affidavit. I note that the applicant relies on his affidavit made 16/9/98 to support the two amended applications filed 30/8/00 and 25/10/00. On each amendment hearing, the Federal Court did not require the filing of a fresh affidavit pursuant to s62 (1)(a). This approach accords with the decision made by Justice French in Drury v State of Western Australia [2000] FCA 132 wherein it was stated that: ‘Where an application is to be amended simply by contraction of the geographical area covered by it pursuant to an agreement, that is a matter in which the filing of fresh affidavits by the same applicants covering the matters in (i) to (v) would be a pointless bureaucratic imposition. The amendment proposed in this case does not require the filing of fresh affidavits by the applicants.’ [para 13] Result: Requirements met s.62(1)(c) Details of traditional physical connection (information not mandatory) Comment on details provided The application contains some details relating to this requirement at para. 2 of the applicant’s affidavit accompanying the amended application lodged on 23/9/98. Result: Provided Details required in section 62(2) by section 62(1)(b) s.62(2)(a)(i) Information identifying the boundaries of the area covered Reasons relating to this sub-condition For the reasons that led to my conclusion that the requirements of s.190B(2), in relation to the external boundaries of the claim area have been met, I am satisfied that the information and maps provided by the applicant are sufficient to enable the area covered by the application to be identified with reasonable certainty. Result: Requirements met Reasons for Decision (Page 4 of22) National Native Title Tribunal s.62(2)(a)(ii) Information identifying any areas within those boundaries which are not covered by the application Reasons relating to this sub-condition For the reasons that led to my conclusion that the requirements of s.190B(2) are not met in relation to the internal boundaries, I am satisfied that the information contained in the application is sufficient to enable certain of the areas described in the application as not being covered by the application to be identified. Result: Requirements met s.62(2)(b) A map showing the external boundaries of the area covered by the application Reasons relating to this sub-condition The application contains a map that clearly shows the external boundaries of the claim area. Result: Requirements met s.62(2)(c) Details/results of searches carried out by the applicant to determine the existence of any non-native title rights and interests Reasons relating to this sub-condition Details of searches conducted by the applicant appear at A7, A8 and attachments A8.1 and A8.2 of the 23/9/98 application.