Registration test decision – edited 

Application name	Mamu People	
Name of applicant	Victor Maund (Jun Boi), Alfred Joyce, Stephen Brooks and Dean Purcell	
State/territory/region	Queensland	
NNTT file no.	QC01/15	
Federal Court of Australia file no.	QUD6014/2001	
Date application made	6 April 2001	
Date application last amended	1 March 2012	
		
Name of delegate	Carissa Kok	
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 not accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth). 
For the purposes of s. 190D(3), my opinion is that the claim does not satisfy all of the conditions in s. 190B.

	Date of decision:	16 November 2012	

___________________________________

Carissa Kok
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 12 October 2012 and made pursuant to s. 99 of the Act. 

Reasons for decision
Table of contents
Introduction
Application overview
Registration test
Information considered when making the decision
Procedural and other conditions: s. 190C
Subsection 190C(2) Information etc. required by ss. 61 and 62
Native title claim group: s. 61(1)
Name and address for service: s. 61(3)
Native title claim group named/described: s. 61(4)
Affidavits in prescribed form: s. 62(1)(a)
Application contains details required by s. 62(2): s. 62(1)(b)
Information about the boundaries of the area: s. 62(2)(a)
Map of external boundaries of the area: s. 62(2)(b)
Searches: s. 62(2)(c)
Description of native title rights and interests: s. 62(2)(d)
Description of factual basis: s. 62(2)(e)
Activities: s. 62(2)(f)
Other applications: s. 62(2)(g)
Section 29 notices: s. 62(2)(h)
Subsection 190C(3) No common claimants in previous overlapping applications
Subsection 190C(4) Authorisation/certification
Merit conditions: s. 190B
Subsection 190B(2) Identification of area subject to native title
Subsection 190B(3) Identification of the native title claim group
Subsection 190B(4) Native title rights and interests identifiable
Subsection 190B(5) Factual basis for claimed native title
Reasons for  s. 190B(5)(a)
Reasons for s. 190B(5)(b)
Reasons for s. 190B(5)(c)
Conclusion
Subsection 190B(6) Prima facie case
Subsection 190B(7) Traditional physical connection
Subsection 190B(8) No failure to comply with s. 61A
Reasons for s. 61A(1)
Reasons for s. 61A(2)
Reasons for s. 61A(3)
Subsection 190B(9) No extinguishment etc. of claimed native title
Reasons for s. 190B(9)(a):
Reasons for s. 190B(9)(b)
Result for s. 190B(9)(c)
Attachment A Reasons for ss. 190A(1A) and 190A(6A)
Subsection 190A(1A)
Subsection 190A(6A)
Attachment B Summary of registration test result
Attachment C Documents and information considered

Introduction
This document sets out my reasons, as a delegate of the Native Title Registrar (Registrar), for the decision to not accept the application for registration pursuant to s. 190A of the Act. 
Note: 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
The Registrar of the Federal Court of Australia (the Court) gave a copy of the amended QC01/15—Mamu People—QUD6014/01 claimant application (the application) to the Registrar on 1 March 2012 pursuant to s. 64(4) of the Act. This has triggered the Registrar’s duty to consider the claim made in the application under s. 190A of the Act. I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply to this claim and Attachment A sets out my reasons.
History of application
•	On 6 April 2001, the application was made when it was filed in the Court.
•	On 3 May 2001, an amended application was filed and on 4 May 2001 the application was amended by order of the Court.
•	On 9 May 2001, the application was accepted for registration pursuant to s. 190A(6).
•	On 1 March 2012, the applicant filed a further amended application. The Court had granted leave to amend the application by an  order made on 27 February 2012.
•	On 1 March 2012, the further amended application was received by the Registrar under s. 64(4). 
•	On 26 March 2012, the National Native Title Tribunal (the Tribunal) provided the applicant with a preliminary assessment of the application. This assessment  outlined my preliminary views of the application in relation to the requirements of the registration test. The assessment highlighted my preliminary view that the application did not satisfy the requirements of s. 190C(2) (at s.62(2)(e)) and ss. 190B(5) to (7) of the Act. 
•	On 30 March 2012, the applicant wrote to the Tribunal to request a deferral of the registration test on the basis that:
(i)	the applicant was not in a position to address the application’s deficiencies; and
(ii)	the Court had set this matter down for a consent determination hearing on 3 September 2012 .
•	On 13 April 2012, the Tribunal wrote to the applicant to advise that the request to defer the application of the registration test had been granted.
•	On 16 August 2012, the Court ordered that the date fixed for the consent determination hearing be vacated.
•	On 4 September 2012, the Tribunal wrote to the applicant to advise that, as the date fixed for the consent determination hearing had been vacated, the delegate would proceed to apply the registration test to the application. The applicant was also provided with an opportunity to make submissions to the Registrar, including, addressing the issues outlined in the preliminary assessment dated 26 March 2012.
•	On 19 September 2012, the applicant wrote to the Tribunal to request a further deferral of the registration test.
•	On 17 October 2012, the Tribunal wrote to the applicant to advise that the delegate would  proceed to apply the registration test to the application on or around 2 November 2012. The Tribunal’s letter noted both that the determination hearing date had been vacated, and, that it was the Tribunal’s understanding that the determination, when made, would be conditional upon the registriation of a number of Indigenous Land Use Agreements. Pursuant to s. 190A(5A) the applicant was notified that it may wish to seek to have the application amended prior to the delegate making a registration decision. 
•	On 26 October 2012, the Tribunal wrote to the State of Queensland (the State) to advise that the delegate would proceed to apply the registration test to the application. The State was provided the opportunity to make a submission in relation to the registration of the application. 
•	No additional information or submissions have been received by the applicant or the State. 

I note that, on 19 October 2012, the Court ordered that the matter be listed for a consent determination hearing on 25 March 2012.
Registration test
In accordance with subsection 190A(6) I must accept the claim for registration if it satisfies all of the conditions in 190B and 190C of the Act. This is commonly referred to as the 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 ss. 190A(6) and (6B), the claim in the application must not be accepted for registration because it does not satisfy all of the conditions in ss. 190B and 190C. A summary of the result for each condition is provided at Attachment B.
Information considered when making the decision
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, but I may have regard to other information, as I consider appropriate. 
I have followed Court authority and have only considered the terms of the application itself in relation to the registration test conditions in s. 190C(2) and ss. 190B(2), (3) and (4)—Attorney General of Northern Territory v Doepel [2003] FCA 1384 (Doepel) at [16].
Attachment C of these reasons lists all of the information and documents that I have considered in reaching my decision.
I have not considered any information that may have been provided to the Tribunal in the course of the Tribunal providing assistance under ss. 24BF, 24CF, 24CI, 24DG, 24DJ, 31, 44B, 44F, 86F or 203BK of the Act.
Also, I have not considered any information that may have been provided to the Tribunal in the course of its mediation functions in relation to this or any other claimant application. I take this approach because matters disclosed in mediation are ‘without prejudice’. Further, mediation is private as between the parties and is also generally confidential (see ss. 94K and 94L of the Act).

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. 
I am not satisfied that the application contains all details and other information, and is accompanied by any document required by ss. 61 and 62. The application does not contain the details specified under s. 62(2)(e) as required by s. 62(1)(b). I explain this in my reasons below.
I note that I am considering this claim against the requirements of s. 62 as it stood prior to the commencement of the Native Title Amendment (Technical Amendments) Act 2007 on 1 September 2007. This legislation made some minor technical amendments to s. 62 which only apply to claims made from the date of commencement of the Act on 1 September 2007 onwards, and the claim before me is not such a claim. 
In reaching my decision for the condition in s. 190C(2), I understand that this condition is of a procedural kind, which 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.
I consider below whether the application and accompanying affidavits/other documents meet the relevant requirements of ss. 61 and 62: 
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). 
Section 190C(2) is framed in a way that ‘directs attention to the contents of the application and the supporting affidavits’. I have therefore confined my assessment of this requirement to the details and information contained in the application itself. I am not required to look beyond the application nor 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 [35], [37] and [39]. 
That said, in seeking to verify that an application contains all the details and information required by ss. 61 and 62, I do need to ensure that a claim ‘on its face, is brought on behalf of all members of the native title claim group’—Doepel at [35].
The application contains the information and details pertaining to the persons authorised to make this application. The application sets out the names of the persons comprising the applicant and states that they are entitled to make this application as the people authorised by the native title claim group—at page 2. 
Schedule A of the application describes the persons in the native title claim group. There is nothing on the face of the application to indicate that not all persons in the native title claim group have been included or that it is in fact a subgroup of the native title claim group—Doepel at [36].
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 provides 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 provides a description of 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 entry in  the National Native Title Register, 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)	stating the basis on which the applicant is authorised as mentioned in (iv). 
The application is accompanied by the affidavit required by s. 62(1)(a).
As I have noted above, I am considering this application against the requirements of the Act as it stood prior to the commencement of the Technical Amendments Act 2007. 
The application is accompanied by four affidavits made by each of the persons who together comprise the applicant. Each of the affidavits contains the requisite statements pursuant to s. 62(1)(a), including, in my view, addressing the requirement under subsection 62(1)(a)(v). 
I note that the affidavits accompanying the application before me are the same affidavits that accompanied  the original and previous amended applications, filed, respectively, on 6 April 2001 and 3 May 2001. I do not consider it necessary, in this instance, that the amended application be accompanied by fresh affidavits in order to comply with s. 62(1)(a)—Drury  v Western Australia [2000] FCA 132—at [11], [12] and [14].
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 does not contain all details and other information required by s. 62(1)(b) because, in my view, it does not contain all 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).
The application at Schedule B and Attachment B1 contains information to describe the boundaries of the application and areas within those boundaries that are not covered by the application. 
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 C1 to the application contains a map of the application area. 
Searches: s. 62(2)(c)
The application must contain the details and results of all searches carried out 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 provides a statement that no searches have been conducted. 
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. 62(2)(d).
Schedule E of the application contains a description of the claimed native title rights and interests. 
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 does not contain all details and other information required by s. 62(2)(e).
As I have noted above, Doepel is authority that, ‘for the purposes of the requirements of s 190C(2), the Registrar may not go beyond the information in the application itself‘—at [39]. 
The general description of the factual basis can be ‘something less than the information necessary to make out’ the sufficient factual basis in the corresponding merit condition in s. 190B(5)—Wulgurukaba People #1 v State of Queensland [2002] FCA 1555—at [19].
In Gudjala  People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC), the Full Court made these comments in relation to the nature and quality of the information required by s. 62(2)(e): 
…it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based [emphasis added]—at [92].
I have had regard to the entirety of the amended application filed on 1 March 2012. In my view, the only relevant information or details in the application are the claim group description in Schedule A and the limited statements found in Schedules F and M (I note that I have extracted the description in Schedule A in my reasons at s. 190B(3)):
The native title rights and interests claimed are those of and flowing from the right to possession, occupation, use and enjoyment of the claim area, pursuant to the traditional laws and customs of the Claim Group, based on the following facts:
i.	The Claim Group has, and predecessors of those persons had, an association with the claim area; and
ii.	There exist traditional laws and customs that give rise to the native title rights and interests claimed; and
iii.	The Claim Group has continued to hold native title in accordance with those traditional laws and customs—Schedule F.

Members of the Claim Group maintain a traditional physical connection with the claim area and carry out activities consistent with the rights and interests referred to in Schedule E of the Application—Schedule M.
In my view, the information in Schedule F merely recites the three particular assertions of ss. 62(2)(e)(i) to (iii). As the Court found in Queensland v Hutchison [2001] FCA 416, a mere recitation of the three particular assertions under s. 62(2)(e) does not amount to a general description of the factual basis—at [17] to [23]. 
As to the information provided in Schedules A and M, I have considered these schedules both separately and collectively. In my view, this information is of a highly general nature and not in sufficient detail to enable a genuine assessment in the terms required. 
In my view, the application before me does not contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, with respect to the three particular assertions in subparagraphs 62(2)(e)(i) to (iii). 
Accordingly, I am not satisfied that the requirements of this section are met.
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 a statement pertaining to activities carried out by the native title claim group. 
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 contains a statement to the effect that the applicant is not aware of any such applications made in relation to the application area. 
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).
Attachment I to the application contains a report providing details of relevant s. 29 notices. 
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).
My search of the Register of Native Title Claims (Register) shows that there were no overlapping applications on the Register when the application before me was made. The geospatial assessment and overlap analysis of the application area, dated 2 March 2012, (the geospatial assessment) by the Tribunal’s Geospatial Services unit, confirms that no other applications entered on the Register cover any part of the application area.
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.

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. 
For the reasons set out below, I am satisfied that the requirements set out in s. 190C(4)(a) are met because the application has been certified by the only representative Aboriginal/Torres Strait Islander body that could certify the application—the North Queensland Land Council (NQLC).
In Doepel, Mansfield J states that ‘[i]n the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body’—at [78].
In my view, my task at s. 190C(4)(a) is only to ensure that:
•	the certifying body has power under Part 11 to make the certification; and
•	the certification complies with s. 203BE(4)—Doepel at [78], [80] and [81]. 
A new s. 203BE certificate by NQLC accompanies the application at Attachment R9. Both the geospatial assessment and the certificate identify that NQLC is the only representative body for the entire application area. The certificate also states clearly that NQLC is the representative body recognised under s. 203AD for the relevant region encompassing the application area—Attachment R9 at page 1.
I note that, the certificate is signed by NQLC’s Chief Executive Officer (CEO) and is dated ‘2012’. It would appear that an oversight has occurred in relation to the dating of the certificate. That is, no day or month in 2012 is included with the insertion of ‘2012’ above the CEO’s signature. It appears to me that the omission of the date (in its entirety) of the certification was not intended. The year that the certification is made, 2012, is still provided and the certificate accompanies the application that was filed in the Court on 1 March 2012. 
It is clear that s. 190C(4)(a) does not empower me to ‘look behind’, or to question the merits of, the representative body’s certification—see Doepel at [80] to [81] and Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 at [31] to [32]. I am only to consider whether the certification meets the requirements for a valid certification under s. 203BE(4). 
Nonetheless, there is nothing before me to indicate that the certification, dated 2012, is no longer current or effective. 
Part 11 of the Act relevantly provides:
Under s. 203BE(4), a certification of an application for a determination of native title by a representative body must:
(a)	include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs 203BE(2)(a) and (b) have been met; and
(b)	briefly set out the body’s reasons for being of that opinion; and
(c)	where applicable, briefly set out what the representative body has done to meet the requirements of s. 203BE(3).
Under s. 203BE(2), a representative body must not certify an application for a determination of native title unless it is of the opinion that:
(a)	all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and
(b)	all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.
Under s. 203BE(3), a certifying representative body must, where it is aware of any overlapping applications (including proposed applications), make all reasonable efforts to achieve agreement amongst, and, to minimise, the number of overlapping applications. However a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body. 
In my view, the certification by NQLC complies with the requirements of s. 203BE(4) for the following reasons:
(a)	it contains the statements required by s. 203BE(4)(a), namely, that NQLC holds the opinions expressed in s. 203BE(2)(a) and (b)—Attachment R9 at page 1;
(b)	it briefly sets out the reasons for the body being of those opinions, as required by s. 203BE(4)(b)—Attachment R9 at pages 1 and 2;
(c)	the certification confirms that the application area is not covered by any other application and therefore I note that s. 203BE(3) is not applicable—Attachment R9 at page 3.
In my view, the application is certified by the only representative body that could so certify, and, that certification contains the statements and information required by s. 203BE(4). As I am satisified that s. 190C(4)(a) is met, it follows that the condition in s. 190C(4) is satisfied. 

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). 
In considering s. 190B(2), I have only assessed the information in the application—Doepel at [122].
Written description and map of the application area
Schedule B defines the application area with reference to the description at Attachment B1. Schedule B confirms that references in the application to ‘land’ means land to the high watermark only. No areas of sea are claimed but that the application area does include some islands, as specified in Attachment B1 and depicted in the map at attachment C. 
Attachment B1 describes the application area as being within the local government areas of Cairns, Johnstone and Eacham. The external boundary of the application area is defined by metes and bounds which commence from a specified starting point and refers to parcel boundaries, local topographic features and localities, and coordinates. The description provides approximate coordinates referenced to the Australian Geodetic Datum 1966 (AGD66) Australian Map Grid Zone 55. It is noted that these coordinates are intended as a guide only.
With regard to any areas within the external boundaries of the application not covered by the application, Schedule B provides a list of general exclusions. 
Attachment C1 is a copy of a map prepared by NQLC on the 6th April 2001. The application area is shown by broadly spaced hatching and dark grey outlines. Points noted in the description are indicated as black filled circles. The map also includes:
•	adjoining boundaries of claimant applications, national parks, state forests, and other features and localities referenced in Attachment B1;
•	major roads and rivers; and
•	a ten kilometre AMG coordinate grid, north point and scale.
My assessment
I have considered all the information provided in the application to identify the application area. I have also had regard to the geospatial assessment which concluded  that the application area has not been changed  by the amendments made on 1 March 2012. 
In my view, the description and map are consistent and identify the application area with reasonable certainty. That is, on the basis of the information provided to describe the application area, I am able to sufficiently locate the areas covered and not covered by the application on the Earth’s surface. Accordingly, I am satisfied that the condition in s. 190B(2) is met. 
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).
Doepel is authority that the focus of s. 190B(3) is on:
•	whether the application enables the reliable identification of persons in the native title claim group—at [51]; and
•	not on ‘the correctness of the description ... but upon its adequacy so that the members [sic] of any particular person in the identified native title claim group can be ascertained’—at [37].
Following Doepel, I have only considered the information contained in the application—at [16].  
As the application does not name the persons in the native title claim group, a consideration under subsection 190B(3)(b) is applicable. 
Schedule A describes the native title claim group as follows:
Identity of the Native Title Claim Group

The Claim Group identifies as and is recognised by other Aboriginal groups in the area as “MAMU”.

Membership of the Group 

All  persons who are descendants of the following ancestors:

i. Bambun
ii. Paddy Brooks (Dungginyu)
iii. Paddy Brooks (Dungginyu) and Maggie
iv. Bombetta Wa-Way (aka Bombita, Bumbida, Betsy, Betty)
v. Charlie Deagon and Kitty
vi. Charlie Deagon and Jinny (aka Jenny, Jeanie)
vii.Emily Purcell/Deagon
viii. Nellie Deagon
ix. Polly Watson
x. Kitty Christmas
xi. Annie Innisfail
xii. Polly Armie (Armi)
xiii. Lizzie Romelo
xiv. Bella Abasene/Epong/Armie/Drahm
xv. William Weare
xvi. Sandy Millay Millay
In Western Australia v Native Title Registrar [1999] FCA 1591 the Court observed that the relevant question in that case (regarding s. 190B(3)), was whether applying the specified criteria or ‘rules’ described the native title claim group sufficiently clearly so that it could be ascertained whether any particular person is in that group—at [67]. Carr J stated that: 
It may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently...The Act is clearly remedial in character and should be construed beneficially—at [67]. 
In my view, the description at Schedule A provides a clear ‘rule’ for membership of the native title claim group—descent from identified ancestors. By making a factual inquiry into whether any particular person descends from any of the ancestors named in Schedule A, it would be possible to ascertain whether that person is a member of the claim group. 
I am satisfied that the description of the native title claim group is sufficiently clear and enables the reliable identification of persons in the claim 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).
The test at s. 190B(4) is whether the claimed native title rights and interests in the application are clear, easy to understand and have meaning—Doepel at [91], [92], [95], [98] to [101] and [123].  
Schedule E contains this description of the claimed native title rights and interests: 
The native title rights and interest claimed are those of and flowing from the right to exclusive possession, occupation, use and enjoyment of the claimed area as against the whole world, pursuant to the traditional laws and customs of the Claim Group.

Where the area is covered by a valid, previous non-exclusive possession act (s.23F) the Claim Group does not claim possession, occupation, use and enjoyment of the area to the exclusion of all others.
In my view, the description of the claimed native title rights and interests contained in the application is clear and understandable. I am satisfied that the description is sufficient to allow the native title rights and interests claimed to be readily identified. Section 190B(4) is met. 
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 does not satisfy the condition of s. 190B(5) because the factual basis provided is not sufficient to support each of the particularised assertions in s. 190B(5), 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) before reaching this decision.
The task at s. 190B(5)
The nature of the Registrar’s task at s. 190B(5) was explored by Mansfield J in Doepel. It is to ‘address the quality of the asserted factual basis’ but ‘not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence ...’—at [17]. 
The Full Court in Gudjala FC agreed with this assessment, and held that a ‘general description’ (as required by s. 62(2)(e)) could certainly be of a sufficient quality to satisfy the Registrar for the purpose of s. 190B(5)—at [83] and [90] to [92]. 
However, the Full Court in Gudjala FC also commented that: 
Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s. 190A and related sections, and be something more than assertions at a high level of generality [emphasis added]—at [92]. 
In my view, the above authorities establish clear principles by which the Registrar must be guided when assessing the sufficiency of a claimant’s factual basis. They are: 
•	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)(a) to (c)?—Doepel at [17]. 
The decisions of Dowsett J 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) also give 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 generally the approach that Dowsett J took in relation to these elements in Gudjala 2007, including his assessment of what was required within the factual basis to support each of the assertions at s. 190B(5) . His Honour, in my view, took a consonant approach in Gudjala 2009.
It is my view that fundamental to the test at s. 190B(5) is that the applicant describe the basis upon which the claimed native title rights and interests are alleged to exist. More specifically, this was held by the Court to be a reference to rights vested in the claim group and further that ‘it was necessary that the alleged facts support the claim that the identified claim group (and not some other group) held the identified rights and interests (and not some other rights and interests)’—Gudjala 2007— at [39].
Information considered
I have considered information in the application that relates to the applicant’s factual basis for the claim. In particular, I have had regard to the information in Schedules A, F and M. (See my reasons above at s. 190C(2) (with regard to s. 62(2)(e)) for an extract of Schedules F and M, and s. 190B(3) for an extract of Schedule A.) 
I note that, in relation to the condition in s. 190C(2), I am not satisfied that the application contains a general description of the factual basis on which it is asserted that the native title rights and interests exist—as required by s. 62(2)(e). In my view, the statements found at Schedule F are of a highly general nature and merely restate the three assertions referred to in ss. 62(2)(e)(i) to (iii). Similarly, the information in Schedule M is of a highly general nature and does not assist me with the task at s.190B(5). 
Schedule A lists the group’s apical ancestors’ names which I do consider to be factual information for the purpose of s. 190B(5). However, without further information relating to these ancestral persons, the list of their names on its own does not assist my consideration under s. 190B(5). For instance, there is nothing before me which describes how and when these ancestors were linked to the application area, or, that identifies the relationships between the named ancestors and the current claim group. 
It is open to me to consider information outside the application for the purposes of s. 190B(5)—Doepel at [16].
Pursuant to s. 190A(3), I have also had regard to the application as it stood prior to the amendment on 1 March 2012. Prior to this amendment, Schedule F contained a general description of the factual basis and attached to the application (amongst other things) were both an affidavit from an anthropologist (Attachment F1) and an affidavit from a member of the claim group (Attachment F2). 
I summarise below the relevant information, in my view, that is provided by the previous amended application and its accompanying affidavits:
Schedule F states that members of the claim group continue to:
•	have a close association, including a spiritual connection with the claim area according to their traditional law and custom;
•	pass on to their descendants traditional laws and customs, as well as stories and beliefs concerning their traditional country including the claim area;
•	use the claim area for traditional hunting, fishing and gathering of traditional bush medicines and other materials;
•	care for their country including the claim area, in accordance with traditional laws and customs passed down to them by their forbears and predecessors; and
•	exercise, in relation to the claim area, the body of traditional laws and customs, generationally passed down to them which include laws and customs relating to caring for country, controlling access, the holding of ceremonies on country and how to use country.
Attachment F1—affidavit by [Anthropologist 1 - name deleted], anthropologist, undated (filed on 3 May 2001):
•	Based on his research and interviews with known Mamu People, [Anthropologist 1 - name deleted] produced genealogies.
•	The claim group description was arrived at by identifying Mamu families and their interrelation to each other, arriving at a description that, by reference to apical ancestors, identifies the current Mamu persons.
•	[Anthropologist 1 - name deleted] has conducted extensive interviews with members of the claim group; recorded details of sites in the application area; and reviewed anthropological and linguistic literature pertaining to the application area and claim group. The findings of this research clearly support the assertion that the claim group and its predecessors have/had an association with the application area.
•	Based on his research and interviews with claim group members, [Anthropologist 1 - name deleted] is of the view that there exist traditional laws and customs, acknowledged and observed by the claim group.
•	Based on his research and interviews with claim group members, [Anthropologist 1 - name deleted] is also of the view that the claim group continue to hold their native title in accordance with these traditional laws and customs. Examples include the committed involvement of claim group members in heritage clearances and the group’s role in monitoring non-Indigenous development on their country.
Attachment F2—affidavit by [Claim Group Member 1 - name deleted], claim group member, sworn on 6 April 2001: 
[Claim Group Member 1 - name deleted] swears that:
•	He was born on 26 June 1945 at Innisfail in Mamu country and takes his identity as a Mamu man from his mother who was a Mamu woman.
•	He lives at Flying Fish Point in Mamu country.
•	He hunts and fishes traditional bush tucker to feed his family, all over Mamu country including scrub hen, cassowary, wild duck, pigeon, pig, turtle, dugong and black brim.
•	He has gathered traditional foods including wild ginger, sour plum, taro and watercress in Mamu country.
•	Together with his brother, he was taught by their uncle the traditional ways of fishing and using a throwing spear.
•	He was shown places in Mamu country by his Elders when they took him hunting and fishing.
•	He was taught by his Elders about ‘natural signs’ showing the seasonal availability of traditional foods, as well as being taught about traditional medicines including blue top, stinging tree, soap tree and green ants.
•	He knows the traditional walkways and camping places in his country.
•	He has lived in many places in Mamu country including at [names eight localities]. 
•	He was taught by his Elders traditional laws about respecting Elders and only taking what they need from nature.
•	He knows other Mamu people and visits/talks with them regularly.
•	Under traditional law only Mamu people can speak for Mamu country. 
•	He does not hunt or fish in other people’s countries without their permission.
•	He has waded across Liverpool Creek to fish/gather food.
•	He has met with other people from three other groups to ‘make out’ their mutual boundaries.
My consideration
Reasons for  s. 190B(5)(a)
I am not satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(a).
On this aspect of the factual basis, not criticised by the Full Court in Gudjala FC, Dowsett J directed that one must look for an association ‘between the whole group and the area’ but without the necessity for each member to have had an association at all times. There must also be material to support an association between the predecessors of the group and the claim area since sovereignty—Gudjala 2007 at [52] and Gudjala FC at [90] to [96]. 
Further, the Registrar is to be informed as to the nature of the asserted association with the application area on the basis of the information provided, but is not obliged to accept broad statements which are not geographically specific—Martin v Native Title Registrar [2001] FCA 16 (Martin) at [26]. 
In my view, there are statements in the material I have considered that support the assertion in s. 190B(5)(a). This information is found in [Claim Group Member 1 - name deleted]’s affidavit which speaks directly to his relationship with his country. [Claim Group Member 1 - name deleted] says that he was taught by his Elders the laws and customs pertaining to the use of his country, how it is to be cared for and his authority to speak for his country. There are some specific details provided about [Claim Group Member 1 - name deleted] and his Elders’ association with their country, including linking [Claim Group Member 1 - name deleted] to certain identified localities.  
The information found in Schedule F as it stood prior to 1 March 2012 and from [Anthropologist 1 - name deleted]’s affidavit, does not, in my view, provide sufficient factual detail to support the claim group or its predecessors’ asserted association with the application area. In my view, both these sources provide broad statements with no reference to any geographically specific places. [Anthropologist 1 - name deleted]’s affidavit refers to Mamu genealogies, the identification of Mamu families with reference to apical ancestors, sites in the application area and anthropological and linguistic literature relating to the application area and the claim group. However, there are no particularised details to describe, for instance, the familial links between the apical ancestors and the current claim group, the group’s predecessors’ association with the application area at sovereignty (or European settlement) or what/where the recorded sites are. There is also no further information relating to the anthropological and linguistic literature to which [Anthropologist 1 - name deleted] refers.
I have considered all of the available material before me. Although I consider that [Claim Group Member 1 - name deleted] affidavit provides some information to support the assertion in s. 190B(5)(a), this affidavit on its own does not provide a sufficient factual basis to support the assertion. In my view, there is insufficient factual information to support the asserted association ‘between the whole group and the area’. It is also my view that there is no information to support the asserted association between the predecessors of the claim group with the application area since sovereignty—Gudjala 2007 at [52] and Gudjala FC at [90] to [96]. 
I am not satisfied that the requirement in s. 190B(5)(a) is met. 
Reasons for s. 190B(5)(b)
I am not satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(b).
In Gudjala 2007, Dowsett J discussed what is required to support the assertion described in s. 190B(5)(b) by reference to the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors [2002] HCA 58 (Yorta Yorta)—Gudjala 2007 at [26]. 
In forming my own view on this aspect of the applicant’s factual basis, I have had regard to the principles enunciated in Yorta Yorta. I have had particular regard to the following principles from the Court’s decision: 
•	‘A traditional law or custom is one which has been passed from generation to generation usually by word of mouth or common practice’—at [46]. 
•	‘[T]he origins of the content of the law or customs concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty...’—at [46]. 
•	‘[T]he normative system...is a system that has had a continuous existence and vitality since sovereignty’—at [47]. 
•	‘When the society whose laws and customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist’—at [53].
•	‘[D]emonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim’—at [83]. 
My understanding, in light of the decisions in Yorta Yorta and Gudjala 2007, is that s. 190B(5)(b) requires that the factual basis describes how the laws and customs of the claim group are rooted in the laws and customs of a society that existed at the time British sovereignty was asserted, or at least during first European settlement, in the application area.  This approach appears to be supported by comments of the Full Court in Gudjala FC at [96]. 
I have also had regard to the passages in Gudjala 2009, where Dowsett J identified some of the factors that should guide the Registrar in assessing the asserted factual basis, including: 
•	that the factual basis demonstrate the existence of a pre-sovereignty society and identify the persons who acknowledged and observed the laws and customs of the pre-sovereignty society—at [37] and [52];
•	that if descent from named ancestors is the basis of membership to the group, that the factual basis demonstrate some relationship between those ancestral persons and the pre-sovereignty society from which the laws and customs are derived—at [40]; 
•	that the factual basis contain some explanation as to how the current laws and customs of the claim group can be traditional (that is laws and customs of a pre-sovereignty society relating to rights and interests in land and waters). Further, the mere assertion that current laws and customs of a native title claim group are traditional, is not a sufficient factual basis for the purposes of s. 190B(5)(b)—at [52], [55] and [69]; and 
•	that the factual basis contain some details of the claim group’s acknowledgement and observance of those traditional laws and customs pertaining to the claim area—at [74].   
I have considered the information provided in the earlier Schedule F (as it stood prior to the 1 March 2012 amendment) and the affidavits by [Claim Group Member 1 - name deleted] and [Anthropologist 1 - name deleted]. For instance, at Schedule F it is asserted that certain things continue to be done by the claim group in accordance with traditional laws and customs, such as:
•	having a close association, including a spiritual connection with the claim area; 
•	using the claim area for traditional hunting, fishing and gathering of traditional bush medicines and other materials;
•	caring for their country, controlling access, the holding of ceremonies on country and how to use country.
Schedule F also asserts that the claim group continue to pass on to their descendants traditional laws and customs, and that the body of traditional laws and customs exercised by the group was generationally passed down to them. 
[Anthropologist 1 - name deleted] states in his affidavit that based on his research and interviews with claim group members, he is of the view that there exist traditional laws and customs, acknowledged and observed by the claim group and that members continue to hold their native title in accordance with those traditional laws and customs.
In my view, the statements contained in the earlier Schedule F and [Anthropologist 1 - name deleted]’s affidavit do not reveal any factual basis in support of the assertion in s. 190B(5)(b). The information from both these sources is of a broad nature and provides no particularised factual detail to describe how any of the asserted laws and customs are ‘traditional’. There is no mention of exactly what these asserted laws and customs are. That is, there is no information which identifies how things such as hunting, fishing, gathering, caring for country, controlling access, holding ceremonies or using country, are governed by the claim group’s asserted traditional laws and customs. There is also no factual information to support that the claim group continue to acknowledge and observe any such asserted traditional laws and customs. While it is asserted that the laws and customs of the current claim group were passed down to them, and that they continue to pass on these laws and customs, it is not further described how such information has been transmitted.
Although [Claim Group Member 1 - name deleted] provides some details about the laws and customs he was taught or shown by his Elders, overall, the information provided in his affidavit does not provide sufficient material to support the assertion in s. 190B(5)(b). For instance, [Claim Group Member 1 - name deleted] says he was taught about laws and customs (or ‘traditional ways’) relating to fishing, throwing a spear, respecting Elders, only taking what he needs from nature, that only Mamu people can speak for Mamu country and seeking relevant permissions before hunting and fishing in other people’s countries. However, there is no further detail to describe how he continues to acknowledge and observe these asserted laws and customs. There is also insufficient information about how the asserted laws and customs govern or direct him and other Mamu people to do certain things, including, any consequences that may arise if the relevant laws are not followed. In my view, there is insufficient particularised information before me which describes the content of the asserted traditional laws and customs. 
It is also my view, that there is insufficient material available about the pre-sovereign society of persons from whom the current claim group are descended, including, information about that society’s normative system of laws and customs. Without this starting point, in my view, it is impossible for the information  before me, to provide support for the assertion that the laws and customs of the claim group have been handed down to them from the pre-sovereign society of people from which they are descended. 
In my view, in the absence of an explanation as to how the current laws and customs of the claim group can be ‘traditional’ in the Yorta Yorta sense, the mere assertion that the group’s current laws and customs are traditional is not a sufficient factual basis for the purposes of s. 190B(5)(b)—at [52], [55] and [69]
I am not satisfied that the requirement in s. 190B(5)(b) is met.
Reasons for s. 190B(5)(c)
I am not satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(c).
This assertion compares closely with the second element of the meaning of ‘traditional’ as discussed in Yorta Yorta—at [47]. To say that the native title claim group have continued to hold the native title in accordance with their traditional laws and customs ‘implies a continuity of such tenure going back to sovereignty, or at least European occupation as a basis for inferring the position prior to that date and at the time of sovereignty’—Gudjala 2007 at [82]. 
In Martin, French J stated that the assertion in s. 190B(5)(c) is ‘plainly a reference to the traditional laws and customs which answer the description set out in par (b) of s 190B(5)’. French J agreed with the delegate’s decision, the subject of that case, that if the factual basis does not support the assertion in s. 190B(5)(b), it must follow that the Registrar cannot be satisfied that there was a factual basis for the assertion referred to at s. 190B(5)(c)—at [29].
Accordingly, as I am not satisfied that there is a sufficient factual basis to support the assertion in s. 190B(5)(b), it follows that I am unable to be satisfied that s. 190B(5)(c) is met. 
Conclusion
I note that this application has been on the Register of Native Title Claims since it was accepted for registration pursuant to s. 190A(6) on 9 May 2001. Following receipt from the Court of the application, as amended on 1 March 2012, the Tribunal provided the applicant with an assessement  of the application, which highlighted my preliminary view that the it did not satisfy the requirements of s. 190C(2) (at s.62(2)(e)) and ss. 190B(5) to (7) of the Act. As I have set out above in the ‘Application overview’, the applicant was given three opportunities to provide additional information and/or amend the application to address those matters outlined in the preliminary assessment. The applicant responded on two occasions by making a request for a deferral/further deferral of the registration test because it was not in a position to address the deficiencies of the application. I note that, in the applicant’s initial reponse to the preliminary assessment, its request for a deferral was also based on the fact that the Court had (previously) set down a consent determination hearing date for 3 September 2012. 
As the applicant has not provided me any additional information, I have only had regard to the same material that was considered by the Registrar’s delegate who accepted the application for registration on 9 May 2001. I have independently assessed all the available material and I am unable to be satisfied that the condition in s. 190B(5) is met. My views are based on my consideration of the material provided by the applicant as well as the current case law principles which apply to my task at s. 190B(5). Since 2001, when the application was registered pursuant to s. 190A(6), there have been considerable developments in the case law which have informed my assessment of the available material against the requirements of at s. 190B(5). As I have referenced in my reasoning above, these relevant court decisions include Gudjala 2007, Gudjala FC, Gudjala 2009 and Yorta Yorta. 
As I have stated previously, it is open to me to consider information outside the application, when making an assessment under s. 190B(5). However, it is not my role to undertake a search for such information to satisfy me of the condition in s. 190B(5). In Martin, French J held that:
... the provision of material disclosing a factual basis for the claimed native title rights and interests, for the purposes of registration, is ultimately the responsibility of the applicant. It is not a requirement that the Registrar or his delegate undertake a search for such material—at [23].
In conclusion, it is my view that based on the information before me, I am unable to be satisfied that there is a sufficient factual basis in support of each of the particular assertions under s. 190B(5). It must follow that the condition in s. 190B(5) is not met.
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 does not satisfy the condition of s. 190B(6) because I consider that none of the claimed native title rights and interests can be established, prima facie.
I note that, I have extracted above at s. 190B(4) the description of the native title rights and interests claimed in the application. 
The Court has found that where the requirements of s. 190B(5) have not been satisfied, then s. 190B(6) also cannot be satisfied— Gudjala 2007 at [85] to [87]. In his Honour’s consideration of the condition at s. 190B(6) in Gudjala 2007, Dowsett J referred to the definition of ‘native title’ in the Act and the High Court’s decision in Yorta Yorta: 
Subsection 223(1) provides:

‘The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)	the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal Peoples or Torres Strait Islanders; and

(b)	the Aboriginal Peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)	the rights and interests are recognized [sic] by the common law of Australia.’

As observed above, the High Court said in Yorta Yorta at [86]:
‘Yet again, however, it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, "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’—Gudjala 2007 at [85] and [86].
I have also had regard to the following passage in Yorta Yorta (that refers primarily to s. 223(1)(c) but alluding to the requirements of s. 223(1)(a)): 
Native title owes its existence and incidents to traditional laws and customs, not the common law. The role of the common law is limited to the recognition and protection of native title. That recognition and protection depends on native title not having been extinguished and its not having incidents that are repugnant to the common laws... requires examination of whether the common law is inconsistent with the continued existence of the rights and interests that owe their origin to Aboriginal law or custom [emphasis added]—at [110].  
I have had regard to these above principles set by the courts. In my view, it is clear that native title rights and interests must be possessed under the traditional laws and customs acknowledged and observed by, the native title claim group. 
I refer to my conclusion above for the condition at s. 190B(5) where I have decided that I am not satisfied that there is a sufficient factual basis to support each of the particular assertions at ss. 190B(5)(a) to (c). For instance, I am not satisfied that there is a sufficient factual basis to support the assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group—at s. 190B(5)(b). 
As I have decided overall at s. 190B(5) that I am not satisfied that there is a sufficient factual basis to support the assertion that the claimed native title rights and interests exist, in my view, it must follow that I cannot be satisfied that s. 190B(6) is met.
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 does not satisfy the condition of s. 190B(7).
This section requires that there be evidentiary material 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 application 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 it is 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 stated 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].   
In my view, while the affidavit in Attachment F2 to the application, as it stood prior to amendment on 1 March 2012, provides some examples of physical association by a claim group member to the application area, this information is insufficient for meeting the requirement in s. 190B(7). To this end, I refer to my decision above at s. 190B(5), with particular regard to my conclusion at subsection 190B(5)(b). In my view, in the absence of a sufficient factual basis to support the assertion that there exist traditional laws and customs, acknowledged and observed by the native title claim group, it is not possible for me to conclude that any described association by a member of the claim group can be ‘traditional’ in the Yorta Yorta sense. I am supported in my view by the decision in Gudjala 2007—at [89].
Subsection 190B(8)
No failure to comply with s. 61A
The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s.61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

Section 61A provides:
(1)	A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
(2)	If:
(a)	a previous exclusive possession act (see s. 23B) was done in relation to an area; and
(b)	either:
(i)	the act was an act attributable to the Commonwealth; or
(ii)	the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in s. 23E in relation to the act;
a claimant application must not be made that covers any of the area.
(3)	If:
(a)	a previous non-exclusive possession act (see s. 23F) was done in relation to an area; and
(b)	either:
(i)	the act was an act attributable to the Commonwealth, or
(ii)	the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in s. 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
(4)	However, subsection (2) or (3) does not apply to an application if:
(a)	the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and
(b)	the application states that section 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). 
Both the geospatial assessment and my own searches of the application area confirm that there are no determinations of native title in relation to the application area.
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 includes statements to the effect that the application excludes areas covered by previous exclusive possession acts—as that term is defined by s. 23B. Schedule B also includes a statement that where extinguishment is to be disregarded under ss. 47(2), 47A(2) or 47B(2), the application does not exclude such areas.  
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).
At Schedule E of the application it is made clear that ‘[w]here the area is covered by a valid, previous non-exclusive possession act (s.23F) the Claim Group does not claim possession, occupation, use and enjoyment of the area to the exclusion of all others’.

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).
At Schedule Q of the application, it is made clear that no claim is made to ownership of minerals, petroleum or gas wholly owned by the Crown.
Reasons for s. 190B(9)(b)
The application satisfies the subcondition of s. 190B(9)(b).
The application at Schedule P states that the application ‘does not include any offshore areas’. 
At Schedule B, it is clarified that the application does not claim any areas of sea but does include some islands. The applicant also makes clear at Schedule B that any land claimed by the application means land to the high watermark only. Therefore, although the application does include offshore islands, I do not consider that any native title rights and interests are claimed over waters in an offshore place.
Result for s. 190B(9)(c)
The application satisfies the subcondition of s. 190B(9)(c).
There is nothing before me to indicate that any of the claimed native title rights and interests have otherwise been extinguished. 

[End of reasons]

Attachment A Reasons for ss. 190A(1A) and 190A(6A)
Subsection 190A(1A)
Despite subsection (1), if:
(a)	The Registrar is given a copy of an amended application under subsection 64(4) that amends a claim; and 
(b)	The application was amended because an order was made under section 87A by the Federal Court; and
(c)	The Registrar has already considered the claim, as it stood before the application was amended; 
The Registrar need not consider the claim made in the amended application 

Subsection 190A(1A) does not apply to this claim because the  application was not amended in accordance with a s. 87A order.
Subsection 190A(6A)
The Registrar must accept the claim (the later claim) for registration if:
(a)	a claim (the earlier claim) was made in an application given to the Registrar under section 63 or subsection 64(4) (the earlier application); and
(b)	the Registrar accepted the earlier claim for registration under subsection (6) of this section; and
(c)	the later claim was made in an application given to the Registrar under subsection 64(4) that amends the earlier application; and
(d)	the Registrar is satisfied that the only effect of the amendment is to do one or more of the following:
(i)	reduce the area of land or waters covered by the application, in circumstances where the information and map contained in the application, as amended, 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;
(ii)	remove a right or interest from those claimed in the application;
(iii)	change the name in the application of the representative body, or one of the representative bodies, recognised for the area covered by the application, in circumstances where the body’s name has been changed or the body has been replaced with another representative body or a body to whom funding is made available under section 203FE;
(iv)	change the name in the application of the body to whom funding was made available under section 203FE in relation to all or part of the area covered by  the application, in circumstances where the body’s name has been changed or the body has been replaced by another such body or representative body;
(v)	alter the address for service of the person who is, or persons who are, the applicant.

Subsection 190A(6A) does not apply to this claim for the reasons given below.
The claim made in the Mamu People application filed on 6 April 2001 was given to the Registrar under s. 63. The claim in the amended Mamu People application filed on 3 May 2001 was given to the Registrar under s. 64(4) and the Registrar accepted this claim for registration under s. 190A(6). 
The application given  to the Registrar on 1 March 2012 amends the earlier Mamu People application and accordingly the circumstances described in s. 190A(6A)(a) to (c) are met.  
However, the amendments made to the application on 1 March 2012 include a change to the description of the native title claim group—Schedule A. Therefore, in my view, I cannot be satisfied that the only effect of the amendments is to do one or more of the things set out under subsection 190A(6A)(d). Accordingly, the circumstances in s. 190A(6A) do not apply and the application must be considered for registration pursuant to s. 190A(1).

Attachment B
Summary of registration test result
Application name	Mamu People	
NNTT file no.	QC01/15	
Federal Court of Australia file no.	QUD6014/01	
Date of registration test decision	16 November 2012	

Section 190C conditions
Test condition	Subcondition/requirement	Result	
s. 190C(2) 		Aggregate result:
Not met	
	re s. 61(1)	Met	
	re s. 61(3)	Met	
	re s. 61(4)	Met	
	re s. 62(1)(a)	Met	
	re s. 62(1)(b)	Aggregate result:
Met	
		s. 62(2)(a)	Met	
		s. 62(2)(b)	Met	
		s. 62(2)(c)	Met	
		s. 62(2)(d)	Met	
		s. 62(2)(e)	Not met	
		s. 62(2)(f)	Met 	
		s. 62(2)(g)	Met	
		s. 62(2)(h)	Met	
s. 190C(3)		Met	
s. 190C(4)		Overall result:
Met	
	s. 190C(4)(a)	Met	
	s. 190C(4)(b)	N/A	

Section 190B conditions
Test condition	Subcondition/requirement	Result	
s. 190B(2)		Met	
s. 190B(3)		Overall result:
Met	
	s. 190B(3)(a)	N/A	
	s. 190B(3)(b)	Met	
s. 190B(4)		Met	
s. 190B(5)		Aggregate result:
Not met	
	re s. 190B(5)(a)	Not met	
	re s. 190B(5)(b)	Not met	
	re s. 190B(5)(c)	Not met	
s. 190B(6)		Not met	
s. 190B(7)(a) or (b)		Not met	
s. 190B(8)		Aggregate result:
Met	
	re s. 61A(1)	Met	
	re ss. 61A(2) and (4)	Met	
	re ss. 61A(3) and (4)	Met	
s. 190B(9)		Aggregate result:
Met	
	re s. 190B(9)(a)	Met	
	re s. 190B(9)(b)	Met	
	re s. 190B(9)(c)	Met	

Attachment C
Documents and information considered
The following lists all documents and other information that I have considered in coming to my decision about whether or not to accept the application for registration.
•	Form 1 application: QC01/15—Mamu People—QUD6014/01 (Mamu People), filed 6 April 2001 
•	Mamu People previous amended application, filed 3 May 2001
•	Federal Court orders (leave to amend application), 4 May 2001
•	Registration test reasons for decision: Mamu People, 9 May 2001 
•	Federal Court orders (replacement of applicant, leave to amend application), 27 February 2012
•	Mamu People further amended application, filed 1 March 2012
•	Geospatial assessment and overlap analysis by National Native Title Tribunal (NNTT); Geospatial Services unit, 2 March 2012
•	Preliminary assessment of Mamu People application against certain conditions of the registration test by a delegate of the Registrar, 26 March 2012
•	Letter from NNTT to applicant: providing applicant the preliminary assessment (dated 26 March 2012), 26 March 2012
•	Letter from applicant to NNTT: request for deferral of the registration test, 30 March 2012
•	Letter from NNTT to applicant: confirmation that applicant’s request to defer the registration test is granted, 13 April 2012
•	Federal Court orders (Mamu People consent determination of 3 September 2012 is to be vacated), 16 August 2012
•	Letter from NNTT to applicant: Registrar will proceed to apply the registration test; submissions invited from the applicant, 4 September 2012
•	Letter from applicant to NNTT: request for further deferral of the registration test, 19 September 2012
•	Letter from NNTT to applicant: Registrar will proceed to apply the registration test; applicant referred to s. 190A(5A), 17 October 2012
•	Federal Court orders (Mamu People is listed for a consent determination hearing on 25 March 2013), 19 October 2012
•	Email correspondence from NNTT to State of Queensland (State): Registrar will proceed to apply the registration test to Mamu People; submissions invited from the State, 26 October 2012
[End of document]