Reason Application Name: Wotjobaluk people & others Application (NNTT) No: VC95/2 Application (Fed Crt) No: VIC Region: VIC/TAS Date Application Made: 28/12/95 Date Registration Test 11/06/99 Decision made: Decision: Accepted Brief history of the application The application was lodged with the National Native Title Tribunal on 28 December 1995. In accordance with the Tribunal’s procedures operating at the time, the application was entered onto the Tribunal’s Register of Native Title Claims on 28 December 1995 and was accepted by the delegate of the Registrar on 6 October 1996. The application was amended several times prior to, and after, acceptance (chiefly in relation to defining the areas the subject of the application). In 1998, having received details of interest holders within the claim area from the State of Victoria, the Tribunal commenced notifying those interest holders in accordance with the Native Title Act 1993. The notification period was not completed at the time that amendments to the Act came into operation and, as a result, the Federal Court took responsibility for settling the list of parties to the application. A Notice of Motion to amend the application was filed in the Federal Court on 22 March 1999. The amendments were consented to by the State and approved by order of the Court on 30 March 1999. When the notice of motion was filed it was accompanied by a Form 1 application which was not a consolidated version of the application. It is apparent from the entry at Schedule S of that application that the Form 1 filed on 22 March is to be read in conjunction with the original application (as amended at that point in time) and not in place of it. A further Notice of Motion to amend the application was filed in the Federal Court on 31 May 1999. The amendments were approved by order of the Court on 4 June 1999. Again, when the notice of motion was filed it was accompanied by a Form 1 application which was not a consolidated version of the application. As above, it is apparent from the entry at Schedule S of the application that the Form 1 filed on 31 May is to be read in conjunction with the original application (as amended at that point in time) and not in place of it. Although there was no consolidated version of the application provided, it is worth noting that in the orders made on 4 June, the Federal Court did specify that the following paragraph be inserted into the application to assist with the description of the area covered by the application: “Part A6 of the original Application describes the area covered by this Application and is incorporated into Schedule B of this Application as amended. The Parish plan maps and other information referred to in, or attached to, Part A6 of the original Application are also incorporated into Schedule B.” Unless otherwise specified, where in these reasons I refer to “the application” I refer to the application (as amended) as at the date of my decision. Information considered in making the decision In determining this application I have considered and reviewed all of the information and documents from the following files, databases and other sources: ¨ VC95/2 - Application (as amended); ¨ VC95/2 - Working Files*; ¨ VC95/2 - Registration Files; ¨ VC97/7 (VG6009/98) – Working and Registration Files; ¨ VC97/16 (VG6018/98) – Working and Registration Files; ¨ VC98/15 (VG6036/98) – Working and Registration Files; ¨ VC99/1 (VG6002/99) – Working and Registration Files; ¨ VC99/3 (VG6005/99) – Working and Registration Files; ¨ The Register of Native Title Claims; ¨ The Native Title Register; ¨ Submissions of the Victorian Government Solicitor dated 4 January 1999 (x2); ¨ Submissions of the Victorian Government Solicitor dated 25 February 1999; ¨ Submissions of the Victorian Government Solicitor dated 25 March 1999; ¨ Submissions of the Victorian Government Solicitor dated 30 April 1999; ¨ Submissions of the Victorian Government Solicitor dated 4 June 1999; ¨ Submissions of the Victorian Government Solicitor dated 11 June 1999 (VC99/3, VC95/2, VC97/7, VC99/1); ¨ Additional information provided in confidence to the Registrar dated 22 March 1999, namely: ¨ Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999 ¨ Affidavit of (Name deleted to protect the privacy of an individual) affirmed 16 March 1999 * In reviewing the working files I have also had regard to the numerous applications to become a party to this application. Many of those applications include comments about people’s interest within the claim area or of their opinion of the applicants’ connection to the claim area. Although these statements are relevant to the application of the registration test they are, in my consideration, of very little probative value without any corroborating information and, accordingly, I have attributed little weight to them. S190B(2) Identification of area subject to native title Met Description of the areas claimed: 190B(2) 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. Reasons for the Decision Having regard to the original application, and the amendments ordered on 30 March 1999 and 4 June 1999 I am satisfied that it can be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. Schedule B of the application (including Part A6 of the original application and subsequent amendments) identifies each of the Parishes within the State of Victoria which contain areas of land the subject of this application. A map was submitted with the amendments to the application filed on 31 May 1999 which marked the external boundary of those Parishes. I note that the most recent amendments to the application (7 June 1999) add the following words to Schedule C : “Map C1 contained in Attachment C is a map showing generally the boundaries, along Parish boundaries within which the area covered by this application is located. Not all the land and waters is claimed. For an accurate description of the area covered refer to Schedule B and refer also to those Parish Plan, national park and other maps for an accurate indication of the boundaries.” The application as amended, details the area covered by the application by reference to particular crown allotments within each Parish boundary. Details of these allotments are available on the public record and are sufficient to identify the location of the areas claimed on the surface of the earth. Copies of Parish Plans are provided for most of the Parishes. The Parish Plans provide a geospatial depiction of the parcels of land within each Parish and are part of a public record system upon which members of the community might reasonably rely to deal with land issues. In addition, at Schedule B of the application the applicants have provided a written description of the areas within the external boundary of the claim that are not covered by the application. They have stated at Schedule B(b) that the application does not include any lands subject to a previous exclusive possession act (as defined by the Act). Private freehold land (past or present) is also specifically excluded from the claim area – save where the Act provides that it can be included in the application. Land or waters within the claim area which have been granted to or vested in the Crown in any capacity may be included in the claim area but only in so far as the grant or vesting does not extinguish native title at common law or the use of the land does not extinguish native title at common law. Such class exclusions amount to information that enables the internal boundaries of the application area to be adequately identified. This may require considerable research of tenure data held by the State of Victoria, but nevertheless it is reasonable to expect that the task can be done on the basis of the information provided by the applicants. In addition the application covers certain identified waterways which are defined by reference to either the Victorian Government Gazette or a document prepared by the authority of the Victorian Surveyor-General and Director of Mapping. Members of the community might reasonably rely on either of those records in relation to water issues. On the basis of these definitions and accompanying material, I am satisfied that the internal waterways are described in the application in such a way as to be readily identifiable. As with the land interests, this may require considerable research and mapping but it is nevertheless reasonable to expect that the task can be done on the basis of the information provided by the applicants. The Victorian Government’s submission, of 4 June 1999, states that exclusions by class within the external boundaries of the application are inappropriate. I have considered these submissions. I have also taken into account Nicholson J’s decision on 21 May 1999 in the matter of Daniels and Ors, et al v The State of Western Australia (WAG6017 of 1996), being the only authority available to date on what may satisfy the requirements of s. 62 (2)(a)(i) and (ii) of the Native Title Act 1993. I refer specifically to para 32 and 37 of Nicholson J’s decision in which he states: “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 is made.