Registration test decision

Application name	Yarrangi Riwi Yoowarni Gooniyandi	
Name of applicant	Mr Mervyn Street, Ms Helen Malo, Ms June Davis, Mr Malachi Hobbs, Mr Jimmy Shandley, Mr Sam Cox, Mr Laurie Shaw, Ms Rosemary Nuggett, Mr Richard Cox, Ms Patricia Dick	
State/territory/region	Western Australia	
NNTT file no.	WC12/10	
Federal Court of Australia file no.	WAD274/2012	
Date application made	10 October 2012	
		
Name of delegate	Heidi Evans	
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 am satisfied that each of the conditions contained in ss. 190B and C are met. I accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth).
	Date of decision:	15 February 2013	

___________________________________

Heidi Evans
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

Application overview
Registration test
Information considered when making the decision
Procedural fairness steps
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 24MD(6B)(c) notices: s. 62(2)(ga)
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)
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 Summary of registration test result

Introduction
This document sets out my reasons, as the Registrar’s delegate, for the decision to 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 Yarrangi Riwi Yoowarni Gooniyandi claimant application to the Native Title Registrar (the Registrar) on 12 October 2012 pursuant to s. 63 of the Act. This has triggered the Registrar’s duty to consider the claim made in the application under s. 190A of the Act.
Given that the claimant application was made on 10 October 2012 and has not been amended, I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply.  
Therefore, in accordance with subsection 190A(6) I must accept the claim for registration if it satisfies all of the conditions in 190B and 190C of the Act. This is commonly referred to as the registration test.
The area covered by the application comprises two parcels, the larger of which (Part A) borders the northern edge of the area covered by the Gooniyandi Combined #2 native title determination application (WAD6008/2000; WC2000/010) (the GC2 application). The claim group for the current application is the same group as the GC2 application, and it is my understanding of the information contained in the current application that the areas covered by both the current application and the GC2 application comprise a broader area traditionally acknowledged as Gooniyandi country. 
I note that the application is affected by a section 29 notice issued by the Western Australian Department of Mines and Petroleum, being exploration permit E04/2218 for Carnegie Exploration Pty Ltd. The notification date is 17 October 2012, requiring me, as the Registrar’s delegate, to use my best endeavours to apply the conditions of the registration test by 17 February 2013.
A preliminary assessment of a draft version of the application was prepared by a delegate of the Registrar and provided to the applicant on 6 August 2012.
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 be accepted for registration because it does satisfy all of the conditions in ss. 190B and 190C. A summary of the result for each condition is provided at Attachment A.
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 am also guided by the case law (arising from judgments in the courts) relevant to the application of the registration test. Among issues covered by such case law is the issue that some conditions of the test do not allow me to consider anything other than what is contained in the application while other conditions allow me to consider wider material.
The information and documents that I have considered in reaching my decision are listed below:
•	Yarrangi Riwi Yoowarni Gooniyandi People native title claimant application (WC2012/10; WAD274/12);
•	Geospatial assessment and overlap analysis (GeoTrack: 2012/1901);
•	Email from the case manager dated 17 January 2013 containing information regarding the section 29 notice for Carnegie Exploration Pty Ltd exploration licence application (E04/2218);
•	Letter pursuant to s. 66(2) from the case manager to the State of Western Australia (the State) dated 17 October 2012 providing a copy of the application and an opportunity to comment;
•	Letter pursuant to s. 66(2A) from the case manager to the representative body, Kimberley Land Council, dated 17 October 2012 providing a copy of the application;
•	Email from case manager dated 1 November 2012, confirming that no submissions had been provided by the State within the stipulated timeframe. 
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, without the prior written consent of the person who provided the Tribunal with that information, either in relation to this claimant application or any other claimant application or any other type of application, as required of me under 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 also ss. 94K and 94L).
Procedural fairness steps
As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness, which seek to ensure that decisions are made in a fair, just and unbiased way. I note that the common law duty to afford procedural fairness may be excluded by express terms of the statute under which the administrative decision is made or by any necessary implication—Hazelbane v Doepel [2008] FCA 290 at [23] to [31]. The steps that I and other officers of the Tribunal have undertaken to ensure procedural fairness is observed, are set out below.
On 17 October 2012, the case manager wrote to the State, providing the State with a copy of the application pursuant to s. 66(2), and an opportunity to comment on the application, by 31 October 2012. No further correspondence was received by the State in relation to the application.
Also on 17 October 2012, the case manager wrote to the representative body for the area covered by the application, the Kimberley Land Council (the KLC), providing a copy of the application pursuant to s. 66(2A). As the KLC were also the representative for the applicant, within this letter, the receipt of the application was acknowledged, and the applicant was provided with an opportunity to submit any additional material in support of the application by 31 October 2012. No further material was received from the applicant.
Upon becoming aware of a relevant section 29 notice affecting the application, on 25 October 2012, the case manager wrote to the State, the KLC and the applicant, advising the parties of the notice, and the revised timeframe within which the Registrar’s delegate would use her best endeavours to test the application.  

Procedural and other conditions: s. 190C
Subsection 190C(2)
Information etc. required by ss. 61 and 62
The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. 
The application satisfies the condition of s. 190C(2), because it does contain all of the details and other information and documents required by ss. 61 and 62, as set out in the reasons below. 
In reaching my decision for the condition in s. 190C(2), I understand that this condition is procedural only and simply requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss. 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s. 190C(2)— Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] and also at [35]–[39]. In other words, does the application contain the prescribed details and other information? 
It is also my view that I need only consider those parts of ss. 61 and 62 which impose requirements relating to the application containing certain details and information or being accompanied by any affidavit or other document (as specified in s. 190C(2)). I therefore do not consider the requirements of s. 61(2), as it imposes no obligations of this nature in relation to the application.  I am also of the view that I do not need to consider the requirements of s. 61(5).  The matters in ss. 61(5)(a), (b) and (d) relating to the Court’s prescribed form, filing in the Court and payment of fees, in my view, are matters for the Court. They do not, in my view, require any separate consideration by the Registrar. Paragraph 61(5)(c), which requires that the application contain such information as is prescribed, does not need to be considered by me under s. 190C(2), as I already test these things under s. 190C(2) where required by those parts of ss. 61 and 62 which actually identify the details/other information that must be in the application and the accompanying prescribed affidavit/documents.
Turning to each of the particular parts of ss. 61 and 62 which require the application to contain details/other information or to be accompanied by an affidavit or other documents:
Native title claim group: s. 61(1)
The application must be made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.
The application contains all details and other information required by s. 61(1). 
It is my understanding of the task at s. 61(1) that it is limited to a consideration only of whether the native title claim group is set out in the terms required by that provision. In this way, it is only where the description provided, on the face of it, indicates that ‘not all persons in the native title group were included’ or that the description was of a subgroup of the native title claim group, that the application would fail to meet this requirement for the purposes of s. 190C(2) – Doepel at [36].
The description of the native title claim group appears at Schedule A of the application. There is nothing on the face of the application itself, in my view, which suggests or indicates that the group described is in fact a subgroup of, or part only of, the native title claim group, or that any persons from that group have been excluded.
I am therefore satisfied that the application meets the requirements of s. 61(1) for the purposes of s. 190C(2).
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).
The names of the persons comprising the applicant appear at page 2 of the Form 1, immediately above Part A. The address for service for the applicant is provided in Part B of the application. 
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).
The Registrar’s role at s. 61(4) for the purpose of s. 190C(2) was considered in Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 (Wakaman), where Kiefel J held that the Registrar was not required or permitted to be satisfied about the correctness of the information pertaining to the claim group, but was merely to consider whether the information required by s. 61(4) is contained in the application – at [34]. In Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007), Dowsett J similarly concluded that the Registrar was not to consider whether the description provided was ‘sufficiently clear’, but merely whether one had been provided – at [31] and [32].
As provided above, a description of the persons comprising the native title claim group appears in the application at Schedule A. Consequently, I am satisfied that the application contains the details required by s. 61(4) for the purposes of s. 190C(2).
Affidavits in prescribed form: s. 62(1)(a)
The application must be accompanied by an affidavit sworn by the applicant that:
(i)	the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and 
(ii)	the applicant believes that none of the area covered by the application is also covered by an approved determination of native title, and
(iii)	the applicant believes all of the statements made in the application are true, and
(iv)	the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and
(v)	setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it. 
The application is accompanied by the affidavit required by s. 62(1)(a).
The application is accompanied by ten affidavits sworn by each of the persons comprising the applicant. Each affidavit is dated, has been signed by the deponent and is competently witnessed. The affidavits all contain the same eight paragraphs, containing information pertaining to the matters set out in subsections (i) to (v) of s. 62(1)(a). It is my view that these paragraphs contain the requisite statements and therefore, that the application meets the condition of s. 62(1)(a) for the purposes of s. 190C(2).
Application contains details required by s. 62(2): s. 62(1)(b)
The application must contain the details specified in s. 62(2). 
The application contains all details and other information required by s. 62(1)(b). 
The application does contain the details specified in ss. 62(2)(a) to (h), as identified in the reasons below.
Information about the boundaries of the area: s. 62(2)(a)
The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified:
(i)	the area covered by the application, and
(ii)	any areas within those boundaries that are not covered by the application.
The application contains all details and other information required by s. 62(2)(a).
Schedule B refers to Attachment B. Attachment B contains a written description of the external boundary of the area covered by the application. Schedule B also contains a list of general exclusion clauses, that is, areas falling within the external boundary 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).
A map showing the external boundaries of the area covered by the application appears at Attachment C to Schedule C. 
Searches: s. 62(2)(c)
The application must contain the details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application.
The application contains all details and other information required by s. 62(2)(c).
Schedule D provides that no searches have been carried out by the applicant. 
Description of native title rights and interests: s. 62(2)(d)
The application must contain a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.
The application contains all details and other information required by. 62(2)(d).
A description of the native title rights and interests claimed in relation to the land and waters covered by the application appears at Schedule E of the application. Having regard to the terms of that description, I am of the view that it is more than 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. 
Description of factual basis: s. 62(2)(e)
The application must contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and in particular that:
(i)	the native title claim group have, and the predecessors of those persons had, an association with the area, and
(ii)	there exist traditional laws and customs that give rise to the claimed native title, and
(iii)	the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
The application contains all details and other information required by s. 62(2)(e).
A general description of the factual basis required by s. 62(2)(e) appears at Schedule F of the application. Further information comprising the factual basis on which it is asserted that the native title rights and interests claimed exist is contained at Attachments F1 to F7.   
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 contains a list of the activities currently being carried out by members of the native title claim group in relation to the land and waters of the application area. 
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 contains information pertaining to the applicant’s knowledge of other applications that have been made in relation to the application area seeking a determination of native title or of compensation, namely that the applicant is unaware of any such applications. 
Section 24MD(6B)(c) notices: s. 62(2)(ga)
The application must contain details of any notification under s. 24MD(6B)(c) of which the applicant is aware, that have been given and that relate to the whole or part of the area covered by the application.
The application contains all details and other information required by s. 62(2)(ga).
Information pertaining to the applicant’s knowledge of any notifications issued under s. 24MD(6B)(c) is contained in Schedule HA. 
Section 29 notices: s. 62(2)(h)
The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application.
The application contains all details and other information required by s. 62(2)(h).
Schedule I of the application refers to ‘Attachment I’ as containing information relating to s. 29 notices of which the applicant is aware. Attachment I contains a list of these notices, compiled by the Tribunal as at 29 February 2012. 
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).
In undertaking the task at s. 190C(3), I note that it is only where a previous application meets all of the criteria set out in subsections (a) to (c) that the requirement for me to be ‘satisfied’ in the terms specified in that provision, is triggered – Western Australia v Strickland [2000] FCA 652 (Strickland FC) at [9]. Subsequently, it is only an application that satisfies all of the criteria in s. 190C(3) that meets the definition of a ‘previous application’.
On this basis, I have first turned my mind to the criteria in s. 190C(3)(a). The geospatial assessment and overlap analysis (geospatial assessment) prepared for the application, dated 25 October 2012 (GeoTrack: 2012/1901), provides that there are no applications as per the Register of Native Title Claims (the Register), or the Schedule of Applications – Federal Court overlapping any part of the current application area as at 22 October 2012. Having regard to the fact that the geospatial assessment was completed a number of months ago, I also produced an overlap analysis from the Tribunal’s iSpatial database, which showed, as at 18 January 2013, a minor overlap with the Gooniyandi Combined #2 native title determination application (WC2000/010). 
I note, however, that the written description of the application area at Attachment B to Schedule B of the application provides that the area covered by the Gooniyandi Combined #2 native title determination application is specifically excluded from the current application area.
In light of this, I am satisfied that there is no application that overlaps the whole or part of the application area, and that the first criterion has not been met.
Consequently, I have not turned to consider the condition at s. 190C(3) any further.
The application satisfies the requirements of s. 190C(3).
Subsection 190C(4)
Authorisation/certification
Under s. 190C(4) the Registrar/delegate must be satisfied that either:
(a)	the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, or
(b)	the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Note: The word authorise is defined in section 251B.

Under s. 190C(4A), the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected where, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect. 
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 each representative Aboriginal/Torres Strait Islander body that could certify the application.
Schedule R provides that the application  has been certified pursuant to s. 203BE(2), and that a copy of that certification appears at Attachment R. Consequently, it is the requirements of s. 190C(4)(a) to which I have turned my mind in considering whether the application meets this condition of the registration test.
The difference between the requirements of subsections (a) and (b) of s. 190C(4) were discussed by Mansfield J in Doepel in the following way:
Section 190C(4) indicates clearly the different nature of the conditions imposed upon the Registrar... The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic. In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group—at [78].
In this way, I understand my role at s. 190C(4)(a) to be restricted to a consideration of two matters only, that is, whether the certification has been provided by an appropriate representative body, and whether the certification complies with the requirements for a valid certificate pursuant to s. 203BE(4). 
As stated above, the certification of the application appears at Attachment R to Schedule R. Attachment R is a certificate signed and dated (5 October 2012) by the Executive Director of the KLC.
Applications for determinations of native title can be certified under Part 11 both by bodies recognised under s. 203AD (a ‘representative body’), or by bodies funded pursuant to s. 203FE(1) to perform all or some of the functions of a representative body. I note that there is no information contained in the certificate itself, or in Schedule R pertaining to the status of the KLC in providing the certification.
Consequently, I have had reference to national maps maintained by the Tribunal, namely the ‘Aboriginal/Torres Strait Islander Body Areas’ map, providing information pertaining to representative bodies across all regions of Australia. Specifically, this map distinguishes between those bodies formally recognised as ‘representative bodies’ (pursuant to s. 203AD), and those alternatively authorised to carry out such functions in accordance with funding provided pursuant to s. 203FE(1). The map lists the KLC as being of the former type. Noting that there is nothing before me suggesting that the KLC does not have the requisite authority to certify the application, I am satisfied that the KLC is a formally recognised representative body pursuant to s. 203AD, possessing the requisite authority to certify the application.
Turning now to consider whether the certification provided by the KLC meets the necessary requirements, section 203BE(4) provides that:
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 (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 subsection (3).
Paragraph [1] of the certificate at Attachment R provides that the KLC certifies in accordance with section 203BE(2) and (4) that it is of the requisite opinion, setting out the prescribed statements. It is my view that this satisfies the requirements of subsection (a) of s. 203BE(4).
Following those statements, the certificate contains various information presented under two subheadings pertaining to the requirements of s. 203BE(2)(a) and (b), being ‘Authorisation’ and ‘Identification of All Persons within the Native Title Claim Group’. The information in relation to authorisation includes the process of decision-making decided upon and adopted by the group for the purposes of authorising the applicant, the location and date of the authorisation meeting, and the resolution passed by the persons in attendance at that meeting to authorise the applicant.
The information pertaining to the identification of all persons within the native title claim group, includes statements regarding anthropological research undertaken over a number of years to determine those persons who hold native title in the application area, the various locations within which notice of the meeting was provided, details of the public notification provided, assistance provided by the KLC to claim group members seeking to attend, and a field trip conducted by staff of the KLC to inform members of the claim group of the meeting. 
It is my view that the extent and nature of this information is sufficient in ‘briefly’ setting out the KLC’s reasons for being of the opinion stated in the certificate, and therefore, that the requirements of subsection (b) of s. 203BE(4) are met.
Regarding subsection (c), and the requirement that where applicable, the representative body is to briefly set out what it has done to address the matters in s. 203BE(3), I note that the certificate is silent. The application states, however, at Schedule H, that the applicant is unaware of any other applications overlapping any part of the current application. In addition to this, contained in Attachment H, is a geospatial assessment and overlap analysis, prepared by the Tribunal’s Geospatial Services dated 19 July 2012 on the proposed application area, which provides that there are no applications overlapping any part of the current application. This is confirmed in the geospatial assessment prepared upon the Registrar’s receipt of the filed application, dated 25 October 2012. Consequently, noting the wording of subsection (c), ‘where applicable’, I am of the view that the requirements of that subsection are not applicable, and, therefore, that the KLC were not required to address this issue in the certificate accompanying the application.
Consequently, I am of the view that the certificate provided by the KLC does meet the requirements of a valid certification pursuant to s. 203BE(4), and that the certification has been provided by a representative body with the requisite authority to certify the application.
The application meets the requirements of s. 190C(4)(a).

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). 
Noting the reference to the information and map required to be contained in the application by ss. 62(2)(a) and (b) within the terms of s. 190B(2), it is my view that it is primarily this information which is the subject of my consideration at this condition of the registration test. My assessment of the sufficiency of this information, I understand to be a consideration of whether reference to this information allows for the identification of the external boundary of the application area on the earth’s surface.
The written description of the application area appears at Attachment B to Schedule B of the application. Attachment B is titled ‘External Boundary Description – Gooniyandi 3 – Native Title Application’, and has been prepared by Native Title Spatial Services (Landgate) on 22 February 2012. The application area consists of two parts (Part A and Part B) which are described by way of a metes and bounds description, referencing the boundaries of existing native title determination applications, pastoral lease boundaries, topographic features and geographic coordinate points referenced to the Geocentric Datum of Australia 1994 (GDA94).
The written description of the application area specifically excludes any area in relation to the following native title determination applications:
•	WAD6008/2000 Gooniyandi Combined #2 (WC2000/010);
•	WAD6133/1998 Bunuba (WC1999/019);
•	WAD628/2010 Yurriyangem Taam (WC2010/013).
Schedule B also lists general exclusion clauses, that is, areas within the external boundary that are not covered by the application. Schedule B also includes the statement that ‘where there is any discrepancy between the map provided at Attachment C and the written description contained in this Schedule and in Attachment B the latter prevail’.
Regarding the use of general exclusion clauses to describe those areas not covered by the application, I am of the view that the case law confirms that such an approach is acceptable for the purposes of s. 190B(2) – see for example Strickland v Native Title Registrar [1999] FCA 1530 at [50] to [55]; Western Australia v Native Title Registrar [1999] FCA 1591 at [50] to [62].
Schedule C refers to Attachment C, which contains a colour copy of an A3 map entitled, ‘Native Title Determination Application Yarrangi Riwi Yoowarni Gooniyandi’, produced by the Tribunal’s Geospatial Services dated 19 July 2012. The map includes:
•	the application area depicted by a bold blue outline with a light blue fill;
•	surrounding native title determination applications shown and labelled;
•	cadastral boundaries depicted by a grey outline and selected pastoral leases labelled;
•	topographic image as background;
•	scalebar, north point, coordinate grid, legend and locality diagram; and
•	notes relating to the source, currency and datum of data used to prepare the map.
The geospatial assessment did identify some minor issues with the wording of the description that appears at Schedule B. The geospatial assessment concludes that these minor issues are in the nature of typographical errors and do not affect an overall conclusion that the map and description are consistent and identify the application area with reasonable certainty. It is my understanding from the geospatial assessment that a combined reading of the written description and the map notwithstanding the typographical issues noted, allows for the identification of the external boundary of the application area on the earth’s surface. 
Upon my consideration of the written description and the map contained in the application, and having regard to the information contained in the geospatial assessment dated 25 October 2012, I agree with the conclusion reached in that assessment, and consequently, am of the view that the application meets the requirements of s. 190B(2).
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).
In my consideration of the condition at s. 190B(3), it is my understanding that the requirements of that condition are to be met by the information contained in the application itself – Doepel at [16]. Regarding the task of the Registrar’s delegate at s. 190B(3), Mansfield J in Doepel made the following comments:
Its focus is not upon the correctness of the description of the native title claim group, but upon its adequacy so that the members of any particular person in the identified native title claim group can be ascertained. It, too, does not require any examination of whether all the named or described persons do in fact qualify as members of the native title claim group...— at [37].
In addition to this, Mansfield J held that ‘the focus of s 190B(3) is whether the application enables the reliable identification of persons in the native title claim group’—at [51] (endorsed by Kiefel J in Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 at [34]).
The description of the native title claim group appears at Schedule A of the application as follows:
The claimant group comprises those Gooniyandi people who hold in common the body of laws and customs concerning the proposed Yarrangi Riwi Yoowarni Gooniyandi claim area and who are;
(a)	the descendants of the following named Gooniyandi ancestors:
Dalbagbiya, Garlinhingi, Gooraloowa, Gurlgurl, Jagi, Jangooyool, Jinggili, Jinny Ngilmia, Joorgabidija, Kimberley Jarlamarra, Labayng, Lagena, Larry, Loombardji, Lungguda, Maggie Lai:zil, Malangarwin, Malanggiya, Mandowa, Milba, Milindi, Millie, Millie Wanbal, Ningali, Ningrnia, Nundjun, Myoomooroo, Rhoda Mandhan, Tommy, Warrgi, Wilinyi, Wilirlman, Wirngarri, Yarraru, Yigi, Badigurayng, Budoornja Giligan, Lilly Campbell, Little Polly Dimananggal, Big Polly Dulangerlus, Brian Kimidi, Mabel Lawel, Maggie Magiji, Amy Mirringala, Mary Miyerri, Mamburu Nogood Billy, Kitty Smith, Wadgimili Sandy Smith, Tommy Thompson and Ned Wiyurru.
or, 
(b)	Aboriginal persons recognised by other members of the Gooniyandi community as being adopted under Gooniyandi laws and customs.
A child is adopted in accordance with Gooniyandi traditional law and custom if they are being, or have been, grown up by a person who is, or was, a descendant of one of the Apical Ancestors named above.
or,
(c)	Aboriginal persons who:
(i)	self-identify as Gooniyandi; and
(ii)	are recognised by other members of the Gooniyandi community as Gooniyandi under traditional law and custom. 
In this way, the description refers to three criteria, the application of which is to allow for the identification of persons who are members of the native title claim group. In the case of Western Australia v Native Title Registrar [1999] FCA 1591 (WA v NTR), Carr J similarly dealt with a claim group description involving the application of three criteria in determining whether a certain individual was a member of the group. His Honour referred to this method of identification as the ‘Three Rules’ and found the description to be sufficiently certain, despite the fact it necessarily entailed an amount of factual inquiry in ascertaining whether any particular person was part of the group. Carr J relevantly held that:
The question is whether the application of the Three Rules describes the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is in that group. In my view it does. The starting point is a particular person. It is then necessary to ask whether that particular person, as a matter of fact, sits within one or other of the three descriptions in the Three Rules. I think that the native title claim group is described sufficiently clearly. In some cases the application of the Three Rules may be easy. In other cases it may be more difficult... It may be necessary, on occassions, 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 clearly... The Act is clearly remedial in character and should be construed beneficially: Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124.
I note that the description before me  is largely similar to that considered by Carr J in ascertaining those persons falling within the claim group description, in that an individual is only required to meet one of the three criteria listed, in order to be considered a member of the claim group. For that reason, I have turned my mind to each of those criteria individually to consider the extent to which those descriptors provide sufficient clarity of group membership.
The first criterion at (a) in the description in Schedule A (above) refers to the descendants of fifty apical ancestors. The descriptor does not specify whether descent is by biological means, or by adoption, but noting the content of the second criterion (discussed below), it is my understanding that it is the biological descendants of the apical ancestors named who are captured by this criterion. Admittedly, determining all of the descendants of those fifty persons would take an amount of factual inquiry. In light of Carr J’s comments above and the fact that biological descent from named apical ancestors was one of the ‘rules’ in the description before his Honour in that case, however, I am of the view that this does not create any obstacle in finding that the description is sufficiently clear. Biological descent from named persons, in my view, provides an objective reference point by which those persons can be identified.
The second criterion refers to persons ‘adopted by’, in accordance with Gooniyandi laws and customs, those persons described by criterion (a). A further explanation of the rules surrounding adoption is also provided as part of the description. In my view, this is sufficiently clear in ascertaining whether a certain individual is a member of the group. Having identified those persons meeting the criterion in (a), and having regard to the explanation of the term ‘adopted by’ given in the description, I am satisfied that the persons described in (b) could be identified. Again, I note that this would most certainly involve an amount of factual inquiry, in approaching those persons identified by the criteria in (a), to see whether persons claiming to be adopted as described in (b), were, in fact, recognised by the Gooniyandi community as persons adopted pursuant to their laws and customs. Despite this, and noting that the description in WA v NTR similarly involved a rule by which persons could be adopted by descendants of the named apical ancestors referred to in the first rule, it is my view that this criterion is sufficiently clear, and that with an amount of factual inquiry, an individual meeting this description could be ascertained.
The third criterion, at (c), I note contains a component of self-identification as a descriptor. It is my view that self-identification alone fails to provide any external or objective reference point by which persons meeting this criterion can be identified, and subsequently does not allow for sufficient clarity in identifying the persons covered by that criterion. 
I note, however, that self-identification is not the sole descriptor in (c), and that the persons meeting this criterion must also be ‘identified by other members of the Gooniyandi community as Gooniyandi under traditional law and custom’. It is my understanding that ‘other members of the Gooinyandi community’ refers to those persons meeting the descriptors in (a) and (b). In this way, I have formed the view, that where the starting point is a particular person, by first asking that person whether they self-identify as Gooniyandi, and, secondly, by approaching those persons identified through the application of the criteria in (a) and (b), and asking them whether the said particular person is Gooniyandi according to the group’s laws and customs, I am satisfied that it can be ascertained whether any one person is a member of the claim group by way of that criterion. Consequently, I consider the descriptor in (c) to be sufficiently clear.
In light of the above discussion, it is my view that the entirety of the claim group description appearing at Schedule A of the application is sufficiently clear, and enables the reliable identification of persons in the native title claim group. 
The application meets the requirements of s. 190B(3).

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 wording of the condition at s. 190B(4), in my view, makes it clear that it is the terms of the application to which I am to turn my mind in undertaking the task at this condition – see Doepel at [16]. In Doepel Mansfield J held that a description will satisfy s. 190B(4) if it identifies native title rights and interests that are ‘understandable and have meaning’ – at [99]. In addition to this, his Honour held that it was open to the Registrar to read the entire description, including any stated qualifications, ‘so that properly understood there was no inherent or explicit contradictions’ – at [123]. It is my understanding of the Registrar’s task at this condition of the registration test that I am also to have regard to the definition of ‘native title rights and interests’ in s. 223(1) in my assessment of the description provided – Doepel at [99].
The description of the native title rights and interests claimed in relation to the application area appears at Schedule E of the application. Included within that description are a number of qualifications in relation to the list of native title rights and interests claimed, namely that the rights and interests claimed are subject to the laws of the State and the Commonwealth, rights conferred upon persons pursuant to those laws, and the traditional laws and customs of the claim group. 
I note that the first paragraph of the description provided includes a claim to exclusive possession, being the right to ‘possess, occupy, use and enjoy the lands and waters of the application area to the exclusion of all others’. In my view, a broad claim of this nature does not offend the condition at s. 190B(4) – see Strickland at [60].
Regarding the remaining non-exclusive native title rights and interests claimed, I consider that they are rights and interests that are clear and easily understood, and rights and interests that have meaning. While I have formed the view that some of those native title rights and interests may not meet the definition provided in s. 223(1) of a native title right or interest, I do not consider it my role at this condition of the registration test to undertake an assessment of each of the rights and interests claimed against that definition, and have left this for the task at s. 190B(6). In reading the entire description at Schedule E, including the stated qualifications, it is my view that the description is understandable and has meaning, and is, therefore, able to satisfy the condition of s. 190B(4).
The application meets the requirements of s. 190B(4).  

Subsection 190B(5)
Factual basis for claimed native title
The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
(a)	that the native title claim group have, and the predecessors of those persons had, an association with the area, and
(b)	that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interest, and
(c)	that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5), as set out in my reasons below.
The task at s. 190B(5)
In undertaking the task at s. 190B(5), I am of the view that there is a correlation that exists between the requirements of s. 62(2)(e) and s. 190B(5), such that an application and accompanying affidavit/s which ‘fully and comprehensively’ addresses all the matters in s. 62 could provide sufficient information to enable the Registrar to be satisfied of all the matters referred to in s. 190B’ – Gudjala FC at [90]. Regardless of this correlation, I note that I am not restricted to the information contained within the application in reaching the required level of satisfaction at s. 190B(5) – Doepel at [16].
The case of Doepel discussed in some detail the role of the delegate at s. 190B(5). Mansfield J held that the delegate is to determine ‘whether the asserted facts can support the claimed conclusions’ and that the role is ‘not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence’ – at [17].
The nature of the information required to satisfy the condition at s. 190B(5) must be in ‘sufficient detail to enable a genuine assessment’, and be ‘more than assertions at a high level of generality’ – Gudjala FC at [92]. With this requirement for a genuine assessment in mind, I am of the view that the factual basis material must have relevance to the particular native title claimed, by the particular native title claim group over the particular land and waters of the application area – Gudjala 2007 at [39].
I have considered each of the three assertions set out in the three paragraphs of s. 190B(5) in turn below.
Reasons for  s. 190B(5)(a)
I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(a).
In my consideration of the factual basis material in the application before me for the purposes of s. 190B(5)(a), it is my understanding that where that information lacks geographical particularity in relation to the area covered by the application, and contains only broad statements regarding the association of the group with that area, it may fail to meet the requirements of the condition – Martin v Native Title Registrar [2001] FCA 16 (Martin) at [26]. Similarly, where the information does not particularise the type of association, such as physical or spiritual, it may also fail to meet the requirements of s. 190B(5)(a) – Martin at [26].
The requirements of the factual basis for the purposes of s. 190B(5)(a) were also discussed by Dowsett J in Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007), where his Honour indicated the following types of information may be necessary:
•	that the claim group as a whole presently has an association with the area, although it is not a requirement that all members must have an association at all times;
•	that there has been an association between the predecessors of the whole group and the area over the period since sovereignty – at [52].
These principles distilled from the case law have guided my consideration of the applicant’s factual basis material for the purposes of this condition of the registration test.
The applicant’s factual basis material – s. 190(5)(a) 
The applicant’s factual basis material appears at Schedule F of the application, and at Attachments ‘F1’ to ‘F4’. Schedule F contains a number of general statements regarding the association of the claim group and their predecessors with the areas covered by the application, back to the assertion of British sovereignty. This includes an assertion that the group have, since that time, possessed, occupied, used and enjoyed the application area pursuant to their traditional laws and customs, which consequently gives rise to the claimed rights and interests in relation to those land and waters.
Attachments F1 to F4 comprise four affidavits. Attachment F1 is an affidavit sworn by a KLC anthropologist (the anthropologist affidavit) regarding her knowledge of and research into, the rights and interests held by the claim group in relation to the application area, and the system of traditional laws and customs by which those rights and interests are held. Of relevance to the claim group and their predecessors association with the application area, the anthropologist affidavit contains the following information:
•	Gooniyandi country can be considered as comprising that area east of Fitzroy Crossing township across to Margaret River Station – at [11];
•	Accounts of the extent of Gooniyandi country provided in historical sources by Kaberry, Tindale, Capell, Playford, Seaman, McGregor, Davis and Horton (all fully referenced in the affidavit at Annexure ‘KD2’), confirm that the traditional boundaries of Gooniyandi country include the areas covered by the current application – at [13] to [21] and [23];
•	The full extent of Gooniyandi country is described by Tindale as: ‘West to Fitzroy Crossing; at Bohemia Downs and Margaret River Stations... East to junction of Mary and Margaret Rivers and the Ramsay Range, north to Stony River, Sandstone, Mueller, Barramundy, and Geikie Ranges; their headquarters were in the eastern limestone areas of King Leopold Ranges’ – at [16];
•	The list of apical ancestors used in describing the claim group was established on the basis of anthropological and genealogical research which identifies these persons as traditionally connected to, and in occupation of, the application area at the time of first European settlement in the area – at [27];
•	The birthplace of at least two of the apical ancestors named in the application is stated as ‘the Margaret River area’ – see [34] and [35];
•	Evidence of the presence of apical ancestors in and their occupation of the application area is provided in historical records taken at GoGo and Christmas Creek pastoral stations, which are in the vicinity of, or cover part of the area understood as, the full extent of ‘Gooniyandi Country’ – at [34], [36] and [37];
•	Claimants continue to hunt, fish, gather resources and camp on the application area, for example the residents of Muladja community are described as recently undertaking these activities at JK Yard, within Part B of the application area – at [40] and [43]. 
Attachments F2 to F4 of the application contain affidavits sworn by senior members of the claim group. These affidavits contain various information pertaining to an association held by the members of the claim group and their predecessors with the application area. For example, the claimants all speak of their birth, and the birth of their parents and grandparents at locations on or within the vicinity of the application area. The following statement by a claimant is illustrative: 
Gooniyandi country was my great-grandmother’s country. Mt. Winifred down to Gandawa and up to Mt. Cummings. I am Gooniyandi through my great grandmother and my father. My father is [Name deleted], [Traditional name deleted]. My great-grandmother’s name was [Tradtional name deleted]. My father was born at Old Fossil Downs station. He worked at the station.
My great-grandmother was born at Rockhole Yard. All the people came down off the Imanarra and moved down through Rockhole Yard to Painted Rocks and Junction Yard.
My aunty [Name deleted] was born at Rockhole Yard near Mt. Winifred.
My family used to walk all around that country. Right up to JK Yard and back down to the Fossil Downs station – affidavit of June Davis at [4] to [7].
With reference to the map of the application area contained in Attachment C, I note that Mount Winifred, Mount Cummings and Rockhole Yard are all locations that fall within Part A of the application area. JK Yard falls within Part B of the application area, and Fossil Downs station borders the area covered by Part B.
In the statements made in their affidavits, each of the claimants indicates that in accordance with Gooniyandi law and custom, each family has a particular area within the broader Gooniyandi country for which they have certain rights and responsibilities, referred to as their ‘riwi’. For example, one claimant states:
Different groups of Gooniyandi people are responsible for different parts of Gooniyandi Country. Those areas are called riwi. My family can speak for that Louisa Downs area. That is our Country. A bit further on it is more the [Family’s name deleted] who speak for that country. We are all one Gooniyandi people and together we look after the Country. Over near Moongardie is more Sam Cox and his mob – affidavit of [Name deleted] at [11]. 
And another claimant states:
All along the Margaret River is our country, then June Davis is further up, and someone else further down. I cannot tell you the story [for] June Davis’s country. This Margaret River is our country, the [Family’s name deleted], my family. We speak for that Country – affidavit of [Name deleted] at [7].
Again, with reference to the map at Attachment C, I note that the Margaret River flows through the southern part of Part A of the application area. Louisa Downs station is located in the GC2 application area, south of the area covered by Part A.
Claimants’ statements demonstrate that they have a thorough knowledge of the application area, including important sites within Part A and Part B, and spiritual stories associated with the formation of those landscapes. For example, one claimant states:
My great-grandfather was born a crocodile. That is his totem and his place is just near JK Yard at Crocodile Creek. That is where his father speared the crocodile. That place is in Area B – affidavit of June Davis at [9].
And another claimant states:
My father used to sing the songs for the area around JK Yard (Area B) and along the Fitzroy River to the Margaret River Junction. [Name deleted] sang that song last year and he said that he used to sing that song with his brother because they were working there too. My Dad and that old man used to sing that song from the Dreamtime about the kangaroo and emu. That is a song for Goonyandi country – affidavit of [Name deleted] at [28]. 
Claimants also speak in detail of the time that they currently spend on the application area, often with their children, teaching them about the country and about Gooniyandi laws and customs. The following statement is an example:
We would go fishing and hunting and camping around Rockhole. In flood times we camped in certain places in that area. June Davis and Helen Malo go there all the time. We can camp anywhere except where it is forbidden. We always go back to the same places. We go camping and fishing a lot along the Yarloo, McDonald Gorge and around Mud Springs along the Margaret to Muludja – affidavit of [Name deleted] at [26].
And also the following statement:
When I was young we would go to Rockhole yard in “Area A” and we would go koonkerberry (birralli) and also black plum giindi. You get that in the limestone. There is also big mob of it behind Eightmile Communiry [sic]. The kids go every year. We showed them first now they know where it is and go and collect it in buckets for us. They know what season to go – affidavit of [Name deleted] at [15].
In my view, information of the kind discussed above provides sufficient support for the assertion that the factual basis is sufficient to support an assertion that the native title claim group have, and their predecessors had, an association with the area. My reasons for forming this view are set out below.
Firstly, the material before me clearly indicates that the claimants and their predecessors have had a physical presence on the land and waters of the application area. Many claimants were born on, or in the vicinity of Parts A and B of the application area, and these persons can also recite the birth places of their parents, grandparents, and in some instances, great-grandparents as being within these areas. It is clear that most claimants continue to live in communities situated within the wider Gooniyandi country, which allows them to continue to carry out their rights and responsibilities in relation to their ‘riwi’. They continue to travel across, camp, hunt and fish on the application area, and also speak of ceremonies that continue to be carried out by the group on the application area. In addition to this, claimants possess knowledge of the lives of their predecessors, often spent working on pastoral stations that covered areas across Parts A and B. While I have information regarding specific claimants and their families only, and the requirement is that it is the whole of the claim group that has the association described in s. 190B(5)(a), it is my understanding that the statements provided by these claimants are merely an example of the association held by the wider group, and my reasoning is subsequently premised on this inference.
Secondly, I am of the view that the material reveals a spiritual association held by the claimants and their predecessors with the application area. This appears to stem from an understanding that they have inherited rights and responsibilities in relation to their riwi through their descent from particular ancestors who previously occupied the area, such that their family has a long-standing connection to that area. In addition to this, claimants express their knowledge of spiritual and/or dreamtime stories associated with their riwi, indicating, in my view, a connection of a personal and spiritual nature.
Thirdly, in claimants speaking in detail of the lives of their predecessors, up to three generations prior, spent on the application area, and in the historical records pertaining to certain Gooniyandi apical ancestors’ occupation of the area, it is my view that the material is sufficient to support an assertion of an association between the predecessors of the group and the area since first European settlement. I note that it is asserted within the anthropologist affidavit that the apical ancestors were born around the time of first European settlement of the area, occurring circa 1880 – see at [37]. All of the claimants are able to trace their descent from one of the apical ancestors listed in Schedule A, and the material contains various information pertaining to those locations within the application area occupied and traversed by those persons and their descendants. Consequently, I consider that the material is sufficient to support an assertion regarding an association since European settlement. 
I am, therefore, 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 that the native title claim group have, and their predecessors had, an association with the area.
The application meets the requirements of s. 190B(5)(a).  

Reasons for s. 190B(5)(b)
I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(b).
In undertaking the task at s. 190B(5)(b), with reference to the wording of that provision, it is my understanding that the assertion needs to be understood in light of the definition of ‘native title rights and interests’ at s. 223(1). In addition to this, noting the similarities in terminology between the provisions, in my view, I am also required to have regard to the leading authority in relation to the meaning of ‘traditional laws and customs’, namely the High Court decision of Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta).
In that case, the High Court held that ‘traditional laws and customs’ were those that had been passed down from generation to generation of a society, but that the word ‘traditional’ encompassed two elements in its meaning: firstly, that the content of the law or custom is to be found in ‘the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty’—at [46]; and, secondly, that ‘the normative system under which the rights and interests are possessed is a system that has had a continuous existence and vitality since sovereignty’—at [47].
In seeking to apply the High Court’s approach in Yorta Yorta to the factual basis for the purposes of s. 190B(5)(b), Dowsett J, in Gudjala 2007, and again in Gudjala People #2 v Native Title Registrar [2009] FCA 1592 (Gudjala 2009), held that the following type of information may be required in support of the assertion at s. 190B(5)(b):
•	that the laws and customs currently observed have their source in a pre-sovereignty society and have been observed since that time by a continuing society – Gudjala 2007 at [63];
•	that there existed at the time of European settlement a society of people living according to a system of identifiable laws and customs, and identifying those persons who acknowledged and observed the laws and customs of that society – Gudjala 2007 at [65] and Gudjala 2009 at [37] and [52];
•	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 – Gudjala 2009 at [40];
•	that the factual basis contain some explanation as to how the current laws and customs of the claim group can be said to be traditional, consisting of more than a mere assertion that they are traditional – Gudjala 2009 at [52], [55] and [69].
•	that the factual basis contain some details of the claim group’s acknowledgment and observance of those traditional laws and customs pertaining to the claim area – Gudjala 2009 at [74].
It is these principles that have guided my consideration of the applicant’s factual basis material for the purposes of s. 190B(5)(b).

The applicant’s factual basis material – s. 190B(5)(b)
Regarding the assertion at s. 190B(5)(b), Schedule F provides that the native title claim group and their ancestors have, since sovereignty, possessed, occupied, used and enjoyed the claim area pursuant to and under the laws and customs of the Gooniyandi People. It is asserted that these traditional laws and customs have been ‘passed by traditional teaching, through the generations ... to the present generations of Gooniyandi persons comprising the Gooniyandi native title claim group’, and that the native title claim group continue to acknowledge and observe those traditional laws and customs.
The anthropologist affidavit provides that various anthropological and historical sources dating from the early 1900s have identified the Gooniyandi People as a distinct linguistic and landholding group associated with the land and waters of the application area – see at [45]. The anthropologist affidavit asserts that the apical ancestors named in Schedule A, identified following extensive research and consultation with claim group members—see at [28], were persons born into, or persons who were part of the Gooniyandi People around the time of first European contact in the area, stated as being circa 1880 – see at [37]. Certain historical sources are discussed in support of this assertion, such as pastoral station records documenting the birth dates of descendants of those apical ancestor persons – see at [34] and [35]. Members of the native title claim group are stated as being able to trace their ancestry back to the apical ancestors named in Schedule A – at [33].
The affidavit also provides details of the system of laws and customs, and the mythological and spiritual underpinnings of that system, documented within the historical sources as commonly held by the Gooniyandi People in occupation of the application area and wider Gooniyandi country around the time of first European settlement of the area.
Such detail includes the assertion that underlying the Gooniyandi People’s culture and identity is a belief that at the beginning of time, or during the Dreaming (referred to as ‘ngarranggarni’), Gooniyandi ancestral beings travelled through the landscape of the application area, depositing the Gooniyandi language in the area, and naming the places and courses within the area – at [32] and [38]. In accordance with Gooniyandi laws and customs, Gooniyandi identity is asserted as being founded upon descent from those ancestral beings, birth on and long-term association with the application area, and traditional and ritual knowledge of that area – at [31].
The importance of birth or conception on, and long-term association with, a particular area is asserted to manifest in the system of Gooniyandi traditional law and custom, in the concept of ‘riwi’. An individual’s riwi is explained as a particular tract of land within the wider Gooniyandi country with which they and their family are connected, and for which they have particular rights and responsibilities – see at [59] to [61]. A Gooniyandi person is understood as being able to speak for their riwi, as a result of this association – see at [59]. The individual’s connection with this area similarly results in a respect for the area and the spiritual presences in that area, played out in ‘welcome to country’ rituals practised both by an individual on their own country, and when visiting the riwi of other Gooniyandi persons – see at [62] and [63]. 
The mythological underpinnings of the Gooniyandi People’s laws and customs are asserted within the anthropologist affidavit as being well-documented by historical and other sources, and include myths relating to Ngaddanggarni (the Dreaming), and also to Galaroo (the Rainbow Serpent), the being considered to have shaped the earth during the Dreaming – at [53].
Archeaological evidence of the Gooniyandi People’s use and enjoyment of the application area and wider Gooniyandi country, and their spiritual relationship with that area, is further suggested in the anthropologist affidavit, which states that the Mimbi caves in the GC2 application area support occupation of the caves dating back 40,000 years, and that such evidence includes paintings of various creation and mythological stories associated with Gooniyandi beliefs – see at [50]. 
The historical sources referenced indicate that the Gooniyandi People engaged with neighbouring groups for ceremonial and other social interactions. Certain ceremonies and rituals undertaken by members of the Gooniyandi People were observed by researchers in the area in the early 1900s – see at [44] and [45]. Additionally, it is asserted that the Gooniyandi People shared aspects of these ceremonial and ritual practices, and some of their religious beliefs with a number of groups in the wider Kimberley region – see at [14]. 
Another aspect of the system of laws and customs observed by the Gooniyandi People, and documented by early researchers in the area, involved the observance of marriage restrictions based on skin groups – see at [67] to [69]. Similarly, the observance by the Gooniyandi People of rites and practices relating to deaths and burials were also included within early historical accounts of the group’s laws and customs – see at [76].
These aspects of Gooniyandi traditional laws and customs asserted within the anthropologist affidavit are also discussed in detail throughout the affidavits sworn by claim group members contained at Attachments F2 to F4 of the application, and the supplementary affidavits by the same claimants at Attachments F5 to F7. Claimants express their knowledge of these laws and customs, and describe the way in which they continue to be observed by members of the native title claim group today.
All of the claimants speak in their affidavits of the pattern of teaching observed by the Gooniyandi People, of passing down traditional knowledge of the application area by word of mouth whilst out on country. This practice is asserted as being in accordance with Gooniyandi traditional laws and customs. For example, one claimant states:
We have to make sure that all our traditions, law and culture are passed to the next generation. That is our duty under our law. We teach them to fish and hunt. We teach them about bush tucker. We always cook traditional way when we camp so we teach the kids that too. We get that goongala and make a fire out of that and show our kids how to do that... – affidavit of June Davis at [26].
The following statement by a claimant indicates the traditional knowledge of the application area possessed by claimants today, as passed down to them by their predecessors:
We have a lot of paintings in those caves which we have a duty to protect. They are at places like Painted Rock and through Imanarra. That is where my old people came from so that is why there is so much painting there. There are also lots of artefacts around those areas that were made by our old people. 
On the other side of Mt. Winifred near a creek there are artefacts lying around everywhere. We get very upset when gardiya come along and take those things or move them. They were left there by our old people. They belong to us. That is our heritage – affidavit of June Davis at [23] to [24].
This statement also supports the assertion within the anthropologist affidavit of a spiritual connection between the Gooniyandi People and their country, and a belief that that country was formed by Gooniyandi ancestral beings. This mythological aspect of Gooniyandi traditional laws and customs, and the practice of rituals and ceremonies associated with such myths, is further supported by the following statement:
We also have the story of galeroo right through that area. He is the water snake that lives everywhere. Lerida Gorge is a dreaming place for galeroo. That is where all his eggs are. That is a special place for us. When we go places where galeroo is we rub a stone under our arm and throw it in the water. This makes sure galeroo knows we are on Country – affidavit of June Davis at [34]. 
The central concept of riwi within Gooniyandi traditional law and custom is demonstrated in various statements made by claimants throughout their affidavits. The following statement is an example:
Different groups of Gooniyandi people are responsible for different parts of Gooniyandi Country. Those areas are called riwi. My family can speak for that Louisa Downs area. That is our Country. A bit further on it is more the [Family’s name deleted] who speak for that country. We are all Gooniyandi people and together we look after the Country ... Each group of people speak for their own riwi. Gooniyandi people should not speak for Country that is not in their riwi. That is still respected today. I cannot speak for Country that is not my riwi – affidavit of [Name deleted] at [11] to [12].
This statement similarly suggests the sense of responsibility claimants have for caring for their riwi, both in accordance with their laws and customs, and as part of their spiritual connection to that area.
There are a number of ceremonies and rituals referred to by claimants in their affidavits. Not only do claimants discuss ceremonies practised by members of the claim group presently, they also make reference to ceremonies and rituals undertaken by their predecessors, and the sites where these were carried out, knowledge of which has been passed down to them by their parents and grandparents. For example, one claimant states:
We have a lot of special sites in the area like the Kangaroo Hole. That is a waterhole where the old people used to meet and hold ceremony. The old people would sit there and have a meeting and do dances there. There are places in that area where it is only for men – affidavit of [Name deleted] at [22].
The following statement speaks to the continued practice of ceremonies in accordance with patterns passed down through the generations:
Gooniyandi people still hold ceremony on country. When we have ceremony we all together as one mob. We have ceremony for events like when a kid becomes a man. Gooniyandi people with children have ceremony when they are born. We also have ceremony on country for funerals. We also do our men’s law business out on country – affidavit of [Name deleted] at [46].
There are a number of further statements contained in the claimants’ affidavits that speak in detail of these various rituals, particularly in relation to birth and death – see for example the affidavit of [Name deleted] at [18] to [20].
Regarding marriage practices and the restrictions placed upon individuals in accordance with Gooniyandi traditional laws and customs, one claimant states:
Under Gooniyandi law you should, or shouldn’t, marry particular people. Some people today don’t worry about that they just go and marry who they like. Other people still marry people the way they should under Gooniyandi law – affidavit of [Name deleted] at [17].
My consideration
In my consideration of the applicant’s factual basis material for the purposes of s. 190B(5)(b), I note that I have proceeded on the understanding, with reference to the statement contained in the accompanying s. 62(1)(a) affidavits that all of the statements contained in the application are true, that I am able to accept at face value the truth of the information contained within the factual basis material – see Gudjala 2008 at [91] and [92] and Doepel at [17].
With this in mind, having regard to the full extent of the material before me, the following discussion outlines the reasons upon which I have formed the view that the factual basis is sufficient to support the assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests.
Regarding the existence of a society at sovereignty, or European settlement of the area, living according to a system of identifiable laws and customs, it is my understanding that the material asserts this society to be the Gooniyandi People. According to the information contained within the factual basis material, the Gooniyandi People are a distinct linguistic and landholding group associated with the area covered by the application who were present in the area at the time of first European settlement. This is verified with reference to anthropological and historical sources dating back to 1898. 
The laws and customs acknowledged and observed by that group, and asserted in the material as the normative system binding those persons, were largely documented by anthropologist Phyllis Kaberry in 1935. The detail contained within the factual basis material pertaining to those laws and customs, set out above and as recorded by Kaberry, in my view, supports the assertion of a group or society bound by the common observance of a specific system of laws and customs at the time at which that system was recorded.
I note that the date of European settlement in the area is asserted by the material as circa 1880, and that the historical sources referred to were recorded at least some eighteen years after that time. It is my understanding that the factual basis material asserts the system of traditional laws and customs acknowledged and observed by the Gooniyandi People to be unchanged from the system being acknowledged and observed by the group at the time of European settlement. There are a number of reasons for which I am able to accept this assertion. Firstly, while European settlement of the area undoubtedly would have impacted the Indigenous persons inhabiting the area, white settlement within the Kimberley region, consisting primarily of the establishment of sparsely-located pastoral stations, is unlikely to have had a dramatic impact on those persons. Indeed, it is my view that the statements made by claimants within the material largely indicate that the introduction of the pastoral industry to the area allowed the predecessors of those claimants to seek employment whilst remaining on their traditional country and continuing to practice their traditional laws and customs in relation to that area – see for example the affidavit of [Name deleted] at [6].
Secondly, in addition to the information contained in historical sources, the factual basis also sets out archaeological evidence of occupation of the application area by an Aboriginal group, comprising artefacts, rock paintings and cave markings dating back approximately 40,000 years. I note that members of the native title claim group today demonstrate their knowledge of mythological stories similar to those recorded in the cave paintings described, asserted as underlying Gooniyandi culture and identity, and express their understanding that these paintings and artefacts were left by their ancestors occupying the area at or even prior to, European settlement. In this way, I understand the mythological underpinnings of Gooniyandi laws and customs to be relatively unchanged from the time these paintings were created by the Gooniyandi ancestors.
Thirdly, it is my understanding that the material asserts a relationship between the apical ancestors named in Schedule A, and the relevant society (being the Gooniyandi People), whereby the apical ancestors were born into, or part of that society at or around the time of European settlement. This asserted connection is verified with reference to historical records taken at pastoral stations in the area, indicating the birth dates of descendants of those apical persons in later years. It is also asserted that each of the claimants today are able to trace their ancestry to one of these persons, such that each of the predecessors responsible for the transmission of knowledge regarding Gooniyandi laws and customs since European settlement can be clearly identified.
For these reasons, I am satisfied that the factual material provides sufficient support for the assertion that the claim group’s ancestors comprised a society who identified as the Gooniyandi People and who occupied the claim area at the time of European settlement in the region. 
Regarding an explanation of how the current laws and customs can be said to be traditional, I note that the system of Gooniyandi traditional laws and customs asserted is one that is grounded upon the shared duty amongst members of the group to pass on knowledge of those laws and customs, and the spiritual and mythological underpinnings of the system, to the younger generations – see affidavit of June Davis at [26] (reproduced above). Such teaching primarily takes place on country, and consequently, the laws and customs asserted are, in my view, shown to be laws and customs relating to the particular land and waters of the application area. Statements made by claimants indicate that this pattern has always been in place, and been adhered to by themselves and their predecessors, back to the time of their ancestors, or ‘old people’.
As discussed above, based on the material before me, I am of the view that it can be inferred that the introduction of the pastoral industry to the Kimberley region and the application area, had a relatively minor impact on the ability of the Gooniyandi People to continue acknowledging and observing their system of laws and customs. Information pertaining to the continued occupation of the area by the predecessors of the claimants, including the birth of those predecessors on various settlements and pastoral stations, their employment on stations throughout the application area, and the presence of 19 Aboriginal camp settlements across the wider Gooniyandi country, in my view, supports this inference. In addition to this, I note that the system of laws and customs described by the claimants today as being acknowledged and observed by them, and taught by them to the younger generations, in relation to the particular land and waters of the application area, is relatively unchanged from the system of laws and customs described by the claimants as being acknowledged and observed by their ancestors, or their ‘old people’, and described within various historical sources dating back to the early twentieth century. For this reason, I consider that the factual basis material supports an assertion that the laws and customs observed by the native title claim group today are, in fact, rooted in the laws and customs of a pre-sovereignty society, and have been passed down through the generations to the claimants. 
In light of the above discussion, it is my view that the factual basis material is sufficient to support an assertion regarding the claim group’s acknowledgement and observance of the system of Gooniyandi traditional laws and customs, pertaining to the particular land and waters of the application area. As acknowledged above, claimants’ statements indicate their thorough knowledge of the application area, and Gooniyandi laws and customs as they operate in relation to specific locations within those land and waters. For example, the material clearly asserts the continued observance by the claimants of restrictions and prohibitions regarding special and sacred sites within the application area, and the rituals undertaken by claimants on country, such as ‘welcome to country’ rites, birth ceremonies, and burial practices.
In summary, being satisfied that the factual basis supports an assertion of the existence in the area at European settlement of a society united by the common observance of a system of identifiable laws and customs, namely the Gooniyandi People; being satisfied that the factual basis is sufficient to support an asserted link between the apical ancestors set out in Schedule A of the application and the relevant society at European settlement; being satisfied that the factual basis is sufficient to support an assertion that the current laws and customs of the claim group are traditional; and being satisfied that the factual basis is sufficient to support an assertion of the claim group’s acknowledgement and observance of Gooniyandi traditional laws and customs pertaining to the particular land and waters of the application area, I have, therefore, reached the view that the factual basis is sufficient to support an assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group giving rise to the claim to native title rights and interests.
Reasons for s. 190B(5)(c)
I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(c).
It is my understanding, noting the wording of s. 190B(5)(c), that the assertion is ‘plainly a reference to the traditional laws and customs which answer the description set out in par (b) of s 190B(5)’ – see Martin at [29]. Therefore, I am of the view that where I am not able to be satisfied that the factual basis is sufficient to support the assertion at s. 190B(5)(b), I cannot be satisfied regarding the condition at s. 190B(5)(c).
It is also my understanding that the requirement at s. 190B(5)(c) can be equated with the second element of the meaning applied to the term ‘traditional laws and customs’, as discussed by the High Court in Yorta Yorta, namely that the native title claim group have continued to hold their native title rights and interests in accordance with laws and customs rooted in pre-sovereignty laws and customs, in a substantially uninterrupted way – see Yorta Yorta at [87]. Similarly, the system of laws and customs asserted must be shown to be one that ‘has had a continuous existence and vitality since sovereignty’ – at [47].
In Gudjala 2007, Dowsett J, in reasoning not criticised by the Full Court on appeal, suggested that the following kinds of information may be required to support the assertion at s. 190B(5)(c):
•	that there was a society that existed at sovereignty that observed traditional laws and customs from which the identified existing laws and customs were derived and were traditionally passed to the current claim group;
•	that there has been a continuity in the observance of traditional law and custom going back to sovereignty or at least European settlement – at [82].
I have already discussed in my reasons above at s. 190B(5)(b) my satisfaction regarding the sufficiency of the factual basis in supporting the assertion of a society, at sovereignty, living according to a system of identifiable laws and customs. As discussed in my reasons above, that society is identified by the material as the Gooniyandi People.
Regarding whether the factual basis is sufficient to support an assertion of a continuity in the observance of those traditional laws and customs, there are a number of reasons for which I have formed the view that the requirements of s. 190B(5)(c) are met.
Firstly, I note that the material asserts that all of the claimants are able to trace their ancestry back to one of the apical ancestors named in Schedule A of the application, by which the claim group is defined. Consequently, throughout their affidavits, claimants speak of the lifestyles and practices carried out pursuant to Gooniyandi traditional laws and customs, by their parents, grandparents, great grandparents, and more generally, the Gooniyandi ‘old people’, whom I understand to be their ancestors occupying the area at sovereignty. This information has been passed down to the claimants by their predecessors, in accordance with the pattern of teaching also pursuant to Gooniyandi traditional laws and customs. In my view, the material indicates that this pattern of teaching is central to the maintenance and continued strength of Gooniyandi culture, and as a result, claimants see it as their prescribed duty to teach younger generations in this way. It is my view that information of this nature supports an assertion of a continuity in the observance of the system of traditional laws and customs acknowledged and observed by the Gooniyandi People at European settlement.
Secondly, I am of the view that the material reveals that there has been little change in the laws and customs described as currently acknowledged and observed by the members of the native title claim group, when compared to the laws and customs documented by early researchers in the area. From this observation, and noting my comments below, I have inferred that their has been little interruption to the Gooniyandi People’s acknowledgment and observance of their laws and customs since sovereignty.
Thirdly, as noted above and discussed in further detail below at s. 190B(6), it is a key requirement that the native title rights and interests subject of the claim, are shown to be native title rights and interests in relation to the land and waters of the application area. In my view, the continued occupation of the application area by the members of the native title claim group and their predecessors, and the information within the factual basis pertaining to this occupation, largely supports the assertion that the system of laws and customs is a system that ‘has had a continuous existence and vitality since sovereignty’ – Yorta Yorta at [47]. The material speaks to the presence of 19 Aboriginal settlements across the wider Gooniyandi country. It is my understanding that these settlements became established in response to the arrival of the pastoral industry in the Kimberley region, and facilitated the involvement of the Gooniyandi People in the industry through various forms of employment, whilst allowing them to continue acknowledging and observing their laws and customs in relation to the land and waters of their traditional country. 
For these reasons, I have reached the view that the factual basis is sufficient to support the assertion at s. 190B(5)(c), that the native title claim group have continued to hold their native title in accordance with the traditional laws and customs of the Gooniyandi People.
The application meets the requirement of s. 190B(5)(c). 
Subsection 190B(6)
Prima facie case
The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
The application satisfies the condition of s. 190B(6). The claimed native title rights and interests that I consider can be prima facie established are identified in my reasons below.
It is my understanding, in my consideration at s. 190B(6) of the rights and interests claimed in the application, that the requirement is only that some, and not necessarily all, of those rights and interests, must be prima facie established – see Doepel at [16]. Consequently, it is only those rights and interests which I consider are, prima facie, established, that will be included in an entry on the Register of Native Title Claims (the Register) where the application passes all of the conditions of the registration test.
Noting the wording of s. 190B(5)(b), and the requirement that the factual basis be sufficient to support an assertion that there exist traditional laws acknowledged by and traditional customs observed by the native title claim group that give rise to the rights and interests claimed, it is my view that where the application fails to meet the condition at s. 190B(5)(b), it is unlikely to satisfy the condition at s. 190B(6) – see Gudjala 2007 at [85] to [87].
In approaching the material before me for the purposes of s. 190B(6), having regard to the wording of that provision, it is my view that the meaning to be applied to the term ‘prima facie’ must guide my approach. The High Court, in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, held that the meaning to be applied was the ordinary meaning, being ‘at first sight; on the face of it; as appears at first sight without investigation’ – at [615] to [616]. 
The adoption of this meaning was approved in Doepel— at [134]. In commenting on the Registrar’s task at s. 190B(6), Mansfield J also stated that, ‘if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis – Doepel at [135].
Finally, I understand that my approach to the material before me for the purposes of s. 190B(6) necessarily requires me to turn my mind to the definition of ‘native title rights and interests’ found in s. 223(1), and consider whether the rights and interests claimed are firstly, possessed under the traditional laws and customs of the Gooniyandi; secondly, are rights and interests in relation to land or waters; and thirdly, are rights and interests recognised by the common law of Australia.
With these principles in mind, I have turned to consider each of the rights and interests claimed in the application below.
Exclusive rights and interests
Paragraph 1 of Schedule E, containing the description of the native title rights and interests claimed, provides that the native title claim group claim a right to ‘possess, occupy, use and enjoy the land and waters of the application area to the exclusion of all others’. It is my understanding that such a claim does not offend the provision of s. 190B(6), and that where there is sufficient material in support of a right to exclusive possession, that it can be recognised – see Strickland at [60] and Western Australia v Ward [2002] HCA 28 (Ward HC) at [51]. 
Regarding the type of factual basis material that may support such a right, in Ward HC, the High Court held that:
...a core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others – at [88].
Similarly, in Sampi v State of Western Australia [2005] FCA 777 (Sampi), the Court held that:
[T]he right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for the land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation – at [1072].
Further guidance as to the type of information that may be required to prove the existence of a right to exclusive occupation was provided in Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths). The Court in that case found that concepts of exclusive native title were not to be equated with usufructuary or proprietary rights, stating that:
... the question whether the native title rights of a given native title claim group include the right to exclude others from the land subject of their application does not depend upon any formal classification of such rights as usufructuary or proprietary. It depends rather on consideration of what the evidence discloses about their content under traditional law and custom – at [71].
Further to the above, the Court found that ‘the question of exclusivity depends upon the ability of the [native title claim group] effectively to exclude from their country people not of their community’, including by way of ‘spiritual sanction visited upon unauthorised entry’ – at [127]. Similarly, where the claimants are able to demonstrate, according to their laws and customs, that they act as the ‘gatekeepers for the purpose of preventing harm and avoiding injury to country’, a right to exclusive possession may be upheld – at [127].
There is various information contained within the application pertaining to a right possessed by the claim group to exclusive possession, that is, the right of the members of the Gooniyandi People pursuant to their laws and customs, to speak for the application area, to protect certain places from unauthorised visitors, and to make decisions regarding the access of other Aboriginal persons to the area.
An example of this material is contained in the following statements by a claimant in their affidavit:
Different groups of Gooniyandi People are responsible for different parts of Gooniyandi Country. Those areas are called riwi. My family can speak for that Louisa Downs area. That is our Country. A bit further on it is more the [Family’s name deleted] who speak for that country. We are all one Gooniyandi people and together we look after the Country. Over near Moongardie is more Sam Cox and his mob.
Each group of people speak for their own riwi. Gooniyandi people should not speak for country that is not in their riwi. That is still respected today. I cannot speak for Country that is not my riwi.
If I want to go onto another Gooniyandi mob’s riwi to hunt, fish, camp and stuff like that then I need to ask that mob. They might say “no” if you want to go to special places ... I can’t just turn up, light a campfire and start fishing. That is just like trespassing.
The Gooniyandi mob has always had particular riwi within Gooniyandi that they are responsible for. Our old people taught us that and their old people taught them. It is the way we have always done things.
The riwi that I look after was given to me by my mother and my grandmother. I can’t change that. Each person has their own boundary – affidavit of [Name deleted] at [11] to [15].
And also the following statements by a claimant:
Under Gooniyandi law we are responsible for protecting the land. We get very upset when we hear some mining company is doing things like taking all our soil and giving it to another country. That damages the land and it lets our old people down. This causes problems under Gooniyandi law.
Under our law those mining mobs should come and sit down with us and talk about their plans. If we give our permission they can come and then they don’t break our law. We have to give permisson for them to come. Sometimes they just sneak in and don’t even give us a chance to talk.
It is the same for other mobs when they want to come and do things like fish on my Country. A few years back the Christmas Creek mob came and fished. They came and asked and we just let them go – affidavit of [Name deleted] at [48] to [50].
And the following statement:
All along Margaret River is our country, then June Davis is further up, and someone else further down. I cannot tell you the story June Davis’s country [sic]. This Margaret River is our country, the [Family name deleted], my family. We speak for that Country – affidavit of [Name deleted] at [7].
And also:
The [Family’s name deleted] have to look after the hill there where there are paintings. We went there a few weeks ago, where there are ranges on both side, and we made sure that people were not going there. If someone damages the sites then bad luck will come to them and something will happen to them – affidavit of [Name deleted] at [24].
And finally:
Each place galeroo is has a name. All those living waters and main water places have names. If galeroo is not at a place it is safe for outsiders to go into the water – affidavit of June Davis at [35].
From these statements, I understand that the claimants clearly assert a right, pursuant to their laws and customs, to speak for a specific area of land within the wider Gooniyandi country, namely, their riwi. The right to speak for this area of country is expressed as being passed down to the claimants by their predecessors, and a concept that is well-accepted under Gooniyandi laws and customs.
It is also my understanding from the above statements that travel across another Gooniyandi mob’s riwi requires the visitor to seek permission from the owner of that riwi prior to entering the area. Despite this division of Gooniyandi country between families, in my view, the material also shows that there is also a collective responsibility held by the claim group under Gooniyandi law for all Gooniyandi country, to protect it and guard it from unwelcome outsiders to the group.
Flowing from this, in my view, the statements indicate that under Gooniyandi laws and customs, claimants feel a certain obligation to care for and protect sites of importance within their riwi from visitors, and that where outsiders damage those sites, they risk incurring punishment from spiritual presences within the landscape.
In this way, I understand the material to reveal the nature of the right to exclusive possession as it exists under Gooniyandi traditional law and custom. That is, that the right of members of the group to exclusive possession depends upon and stems from their rights, as individuals, to speak for and make decisions regarding access to, their specific part of Gooniyandi country, namely their riwi. The material similarly reveals that this right to speak for, and right to be asked permission in relation to one’s riwi, are rights and interests inherited from an individual’s predecessors, passed down to the claimants in accordance with Gooniyandi law and custom.
Finally, I note that the material indicates the claimants’ knowledge of the necessary practices and customs to be observed regarding the spiritual forces within the landscape so as to avoid any conflict or danger from those forces. The material suggests that claimants consider visitors to Gooniyandi country who fail to observe these customs and practices to be at risk.
In light of the above discussion, I have formed the view that the material allows me to consider, pursuant to the particular laws and customs of the Gooniyandi People, that a right to exclusive possession of the area can be, prima facie, established.
The remaining rights claimed in the application are expressed as non-exclusive rights.

Non-exclusive rights and interests
The right to access the application area
As discussed above in my reasons at s. 190B(5), the material contains a considerable amount of information pertaining to the continued occupation of, and access to, the application area by the claimants and their predecessors, including the Gooniyandi ancestors. General statements within the anthropologist affidavit and statements made by claimants in their affidavits all speak to the birth of themselves and their parents, grandparents and great grandparents on or in the vicinity of the application area, and their continued use of the area for shelter, sustenance, and for meeting their cultural needs. The anthropologist affidavit similarly provides that there are 19 Aboriginal settlements across the wider Gooniyandi country, where claimants and their predecessors lived and continue to reside.
An example of a claimant’s statement containing information of this nature is as follows:
My great-grandmother was born at Rockhole Yard. All the people came down off the Imanarra and moved down through Rockhole Yard to Painted Rocks and Junction Yard. 
My family used to walk all around that country. Right up to JK Yard and back down to the Fossil Downs station.
We also have our holiday camp at JK Yard which is in Area B. We camp there and go fishing and hunting and all those kind of things. There is a special men’s story for that place so I can’t talk about it. We take the young people out there and tell them the stories and teach them fishing and hunting – affidavit of June Davis at [5], [7] and [8].
In my view, information of this nature indicates that claimants understand their ability to access the application area as being a right enjoyed presently, and a right that has been enjoyed by their predecessors, back a number of generations. It is similarly my understanding of these statements that they consider the right to be possessed under Gooniyandi traditional laws and customs.
I consider, therefore, that the right to access the application area is, prima facie, established.
Result: Prima facie established.
The right to travel over, and move about on, the application area
Noting my conclusion above, regarding the right to access the application area, it is my view that the information pertaining to that right similarly speaks to a right possessed by the claimants to travel over and move about on the application area. There are various statements made by the claimants indicating that both they and their predecessors have enjoyed this right, not unrelated to the Gooniyandi People’s long-term association with the area (discussed in my reasons above at s. 190B(5)(a)). One such statement is as follows:
We can travel across all of Gooniyandi country. We are taught things like ’you gotta stay away from that hill’. We know where not to go. If there is a special woman’s place we let them know. We have to be very careful on other people’s riwi. We used to get Mervyn Street and June Davis to take us to the big river at the back of Louisa. They always want us to come with them. Mervyn and ‘Junie’ are good teachers. If I want to go fishing on someone else’s riwi (country) I must ask them first. Other Gooniyandi people from different riwi will invite us to go fishing and camping with them to show us the country – affidavit of [Name deleted] at [12].
And also the following statement:
We take our kids out to places in Area A and Area B all the time. We tell them the stories and show them the Country. Right up through Black Hills Yard to Rockhole Yard. We take them to Imanarra where their ancestors came from and tell them about that. That Imanarra is a really special place. It is made of all that range from Mt. Winifred – affidavit of June Davis at [31].
I note that the long-term association and access of the Gooniyandi People to the application area is asserted by the material as flowing from the group’s ownership and occupation of the land and waters of the area prior to sovereignty. In my view, the information of this nature contained within the material is sufficient in allowing me to consider that the right is, prima facie, established, and that it is possessed under the traditional laws and customs acknowledged and observed by the Gooniyandi native title claim group.
Result: Prima facie established.
The right to camp on the application area
Various statements within the claimants’ affidavits indicate that the claimants and their predecessors enjoyed a right to camp on the application area. The following statement is an example:
We would go fishing and hunting and camping around Rockhole. In flood times we camped in certain places in that area. June Davis and Helen Malo go there all the time. We can camp anywhere except where it is forbidden. We always go back to the same places. We go camping and fishing a lot along the Yarloo, McDonald Gorge and around Mud Springs along the Margaret to Muludja – affidavit of [Name deleted] at [26]. 
Noting the long-term occupation of the application area by the Gooniyandi People, discussed above in my reasons at s. 190B(5), and statements of the type reproduced above, it is my view that the material demonstrates that the claimants’ predecessors have previously (including back to sovereignty) enjoyed the right to camp on the application area, and that this right has continued to be exercised by the group since that time. In this way, I consider that the right is, prima facie, established, and is a right exercised in accordance with Gooniyandi traditional laws and customs.
Result: Prima facie established.
The right to erect shelters and other structures on the application area
Being satisfied on the material before me that the right to camp is, prima facie, established, I am also of the view that the right to erect shelters and other structures on the application area is, prima facie, established, that is, that it can be inferred that the latter right facilitates and goes hand-in-hand with the former. It is my view that exercise of this right claimed by the group to camp on the application area, would also have involved and necessitated the erection of shelters and structures for the purposes of camping by the Gooniyandi People.
In addition to this, I note that the material speaks specifically to the claimants’ enjoyment of the right, and the way in which there are customs and practices surrounding the exercise of the right, pursuant to Gooniyandi traditional laws and customs. An example of such a statement is as follows:
If I want to build a house on my country I would speak to the old people to get permission which they would always give me. I would also need to ask the station. I would never ask permission to live in someone else’s riwi. They would kick us out. When we get native title we are going to ask the station to build a shelter up near where we go camping. Then we won’t have to come all the way back home if there is bad weather or something. We will be able to stay out there. That is on my Country. The old people wouldn’t let me build it close to a sacred site they would make me go further out – affidavit of June Davis at [25].
Based on this material, and in light of my finding above regarding the right to camp on the application area, I consider that the right to erect shelters and other structures on the application area is, prima facie, established. 
Result: Prima facie established.
The right to live on the application area
Information contained in the factual basis material indicates that claimants currently live on the application area. An example of information of this nature is in the following statement:
If you want to build a house on Country within your riwi you need to get permission from the right people. I talked to my family when I built my house to get permission. I am a traditional owner of that land so I can build a house there as long as I get permission. They have to agree and say “yes” – affidavit of [Name deleted] at [22].
Similarly, the material asserts that the predecessors of the claimants were born on, and lived on the application area. Further, the historical sources referenced in the anthropologist affidavit assert that the Gooniyandi People have, since prior to sovereignty and throughout European settlement of the Kimberley region, possessed and occupied the application area, and that this possession and occupation is pursuant to Gooniyandi traditional laws and customs. In this way, my understanding of the material is such that I consider that the right possessed by the claimants to live on the application area to be, prima facie, established.
Result: Prima facie established.
The right to hold meetings on the application area
There are a number of statements made by claimants that indicate that meeting on country is a right exercised by them currently, and one that was similarly exercised by their predecessors, such that the practice was one passed down to them by previous generations as an aspect of Gooniyandi traditional laws and customs. The following statement is an example:
If we have a problem with another Gooniyandi mob we can call a meeting on country to sort it out. We could have that meeting anywhere in Gooniyandi country. We would just ask the mob where we wanted to have the meeting if it was ok – affidavit of [Name deleted] at [55].
In this way, I consider that the right to hold meetings on the application area is, prima facie, established, and that it is a right held under Gooniyandi traditional laws and customs.
Result: Prima facie established.
The right to hunt on the application area
All of the claimants speak in their affidavits of the practice of going hunting at various locations across the application area. Claimants also speak of the way in which methods and techniques regarding how to hunt were taught to them by their parents and grandparents, such that these techniques and methods formed part of the traditional knowledge passed to the claimants. The following statements are examples from the material:
When we go hunting we hunt for things like hill kangaroo (thiaru), red kangaroo (bangangawooroo), wallaby, emu (gunanunja), wild turkey (galamuda), goanna (walwarunga), water goanna (giwali), crocodile, snake (balungi), bobtail (blue-tongue lizard) (lungera). There is also a kangaroo that runs with a ‘limp’ on the left hand side. I have never heard a ‘white-fella’ name for that but we call it gururungu – affidavit of [Name deleted] at [41].
And also: 
Men would go long way to catch kangaroo and fish in that area (“Area A”). At the same time, they would do men’s business. They would catch brim and catfish up there – affidavit of [Name deleted] at [27].
Noting that the claimants speak not only of their own hunting trips and exercise of the right to hunt, but also the trips of their predecessors and the Gooniyandi ‘old people’, and their possession of the right, it is my view that the right to hunt, in accordance with the traditional laws and customs of the Gooniyandi People is, prima facie, established.
Result: Prima facie established. 
The right to fish on the application area
Similarly to above, the claimants speak throughout their affidavits of their exercise of a right to fish on the application area. In my view, these statements also indicate the existence of specific rules and customs regarding the way in which fish are caught, and regarding how fishing takes place on country. Examples of such statements are as follows:
We also catch fish right through my Country. Things like barramundi (bulga), black bream (junbinbaru), cat fish (gurumungnari), perch (mongu), long-neck turtle (wilarabi) and short-necked turtle (dirwiwi). Sometimes we get sawfish as well (garwanyi). We mostly use fishing line to fish, even for the turtles, but we use spears and nets as well – affidavit of [Name deleted] at [42].
And also:
It is the same for other mobs when they want to come and do things like fish on my Country. A few years back the Christmas Creek mob came and fished. They came and asked and we just let them go – affidavit of [Name deleted] at [50].
In addition to this, I note that the claimants speak of the way in which their parents, grandparents and even great-grandparents passed knowledge of fishing techniques and methods to them, in accordance with Gooniyandi traditional laws and customs. In this way, I consider that the right to fish on the application area is, prima facie, established, and that it is a right held under Gooniyandi traditional laws and customs.
Result: Prima facie established.
The right to forage on the application area
There is substantial information contained within the factual basis relating to a right possessed by the native title claim group to forage on the application area. The following statements taken from claimants’ affidavits are examples of information of this nature:
When I was young we would go to Rockhole yard in “Area A” and we would get koonkerberry (birrali) and also black plum giindi. You get that in the limestone. There is also big mob of it behind Eightmile Communiry. The kids go every year. We showed them first now they know where it is and go and collect it in buckets for us. They know what season to go – affidavit of [Name deleted] at [15].
And also:
When we go collecting bush tucker we get things like bush yam (bayla), bush potato, bush onion (junda), bush carrot (barraloo) and conkerberry – affidavit of [Name deleted] at [27].
Various statements within the material, in addition to those above, indicate that the claimants were taught where to, and how to, gather certain natural products and resources by their parents and grandparents, such that these techniques and locations formed part of the traditional knowledge of the area passed down to younger generations in accordance with Gooniyandi traditional laws and customs. I consider, therefore, that the right to forage on the application area is, prima facie, established. 
Result: Prima facie established.
The right to have access to and use and maintain the natural water resources of the application area including the beds and banks of watercourses
Watercourses within the application area clearly have a significant role in the livelihood and cultural identity of the native title claim group. This, in my view, is seen in statements pertaining to the creation of those watercourses by the Rainbow Serpent, galeroo, and in statements regarding the numerous uses to which water taken from those places is put, including cooking, ceremonial needs, and medicinal needs. The following statement is an example:
When we go camping we camp by the river and take our water from the river. We also take water with us but we take extra from the river when we need it – affidavit of June Davis at [15].
In addition to this, the importance of water places, and the claimants’ sense of responsibility regarding care for those places is seen in the following statement:
When we go to waterholes, rivers and creeks within Gooniyandi we have a responsibility to look around and make sure everything is OK with those places. We have plans for our Rangers to look after those places to make sure they don’t get damaged and to look after them properly. If I don’t look after those places in my riwi then other Gooniyandi people would tell me off. It is my job to look after the land in my riwi – affidavit of [Name deleted] at [25].
Noting this sense of responsibility, and other statements within the claimants’ affidavits regarding their knowledge of and respect for places known to be formed by galeroo, it is my view that the right claimed is one that is in accordance with Gooniyandi traditional laws and customs, and one that is, prima facie, established.
Result: Prima facie established.
The right to take, use and enjoy the natural resources of the application area
It is my understanding that there is very little difference between a right to forage on the application area, and a right to take, use and enjoy the natural resources of the area. I consider both rights to result in the claimants undertaking very similar, if not identical activities. It is likely, however, that ‘natural resources’ is intended to capture a wider spectrum of natural products than merely food. In my view, the material speaks to a right possessed by the claimants and their predecessors to gather and use a wide range of resources, including food, timber, tobacco, plants and medicines. 
For the same reasons set out above, therefore, and with reference to statements such as the following that speak specifically to the right exercised by the claimants to take, use and enjoy such natural resources, I consider that the right to take, use and enjoy the natural resources of the application area is, prima facie, established.
Bush tucker is very healthy food and it is important for us to eat bush tucker. We have been living off it for a very long time. We get bush potato (biirlla), bush tomato (nganjali), fruit like a watermelon shape (wanbaring), a little tree with little white fruit is called (ngoowi) and a black fruit (ngooji) that is the same size as the white one. Boonga is a creeper that grows along the river that you dig out like a yam. It has a long white root. There is bush yam (birla) and the bush apple (goodida). They grow like big apples. There is also coonkerberry all around waterholes. Bangirndi, they are bush figs that grow in the limestone they are very good. They get pink and purple when they are ready and have a beautiful taste. There is also bush honey (ngalinga) that some people call ‘sugar bag’ – affidavit of [Name deleted] at [14].
Result: Prima facie established.
The right to trade in resources of the application area
Each of the claimants makes a reference in their affidavit to a right possessed by the group to trade in resources of the area, and the way in which their predecessors exercised this right. The following statement is an example:
We used to trade those things and things like tucker and bush medicine at events called wunan. All the mobs would meet and swap things with each other. Not just between riwi’s but between other mobs like Kija, Walmajarri, Ngarininjin and Jaru. That wunan would happen on the Leopold River at a place called Woomoorooloo. People would come off the ranges and meet up – affidavit of June Davis at [29]. 
And also:
They used to trade a lot a long time ago. Now they trade during men’s law. My mother used to have a coolamon, digging sticks and other special women’s things that they would trade. Men used to trade boomerangs of all different shapes. One old man is still teaching kids how to make them and also how to make shields – affidavit of [Name deleted] at [32].
In my view, these statements indicate that the trading of resources taken from the application area was exercised, and continues to be exercised, as an aspect of certain cultural ceremonies pursuant to Gooniyandi traditional laws and customs, and that the claimants have been taught knowledge regarding the way in which trading between the Gooniyandi ancestors took place. In light of this, it is my view that the right to trade in resources of the application area is, prima facie, established, and that it is a right shown to be possessed under the Gooniyandi traditional laws and customs.
Result: Prima facie established.
The right to share or exchange subsistence and other traditional resources obtained on or from the land or waters
In my view, statements made by claimants such as the following, clearly speak to a right possessed by the group to share and exchange resources obtained on the application area:
Under Gooniyandi law, if we go and kill something or catch fish we have to share it with other people. Not just your own mob but with other mobs as well. Sometimes they will give you something back. It depends if they have anything – affidavit of [Name deleted] at [44].
And also:
When we get a big mob of fish we have to share them with people. That is what we have to do. We are not to be greedy. We share anything. Kangaroo, turkey, emu and snake, anything, even bush fruit. It is important for us to keep doing this because it is our culture. If I stopped I would die. We also get crocodile and eat them – affidavit of [Name deleted] at [33].
Similarly, these statements suggest that this aspect of Gooniyandi law and custom is accepted as part of their culture, with established rules which they feel an obligation to adhere to. 
In light of statements of this nature, I consider that the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters is, prima facie, established.   
Result: Prima facie established.
The right to use the application area for social, religious, cultural and spiritual customary and/or traditional purposes
As discussed in my reasons above at s. 190B(5), there is a considerable amount of information contained in the factual basis material pertaining to the long-term occupation and enjoyment by the Gooniyandi People of the application area, including statements regarding the numerous social, cultural and sustenance purposes for which that area was used. I consider the following statements to be an example of certain cultural, spiritual and religious purposes for which the claimants use, and for which their predecessors used, the application area:
We also use the Koonkerberry mixed with river gum leaves to smoke houses and the surrounding area when someone passes away. After we do the smoking, we sit around the fire all as one and talk about that person’s country and the things they did on it. Sometimes there will be stories about them walking through the country. When the smoking is done the place is good to go back to. You cannot say the deceased names. Sometimes kids make mistakes but you are not supposed to use the names – affidavit of [Name deleted] at [20].
And also:
Our old people would hold ceremonies all the time. [Name deleted] is taking the boys out and showing them dancing still. We take kids out and tell them stories and show them country. It is important for us to go on country. Some of the old people still sing the songs. My Dad used to tell us stories from the Dreamtime for country and we still tell our children those stories – affidavit of [Name deleted] at [21]. 
In light of this material, noting that claimants have been passed knowledge of these purposes and practices by their predecessors, I consider that the right to use the application area for social, religious, cultural and spiritual customary and/or traditional purposes is, prima facie, established, and that it is a right possessed under Gooniyandi traditional laws and customs.
Result: Prima facie established.
The right to conduct ceremony on the application area
It is my view that there is little distinction to be made between a right to use the application area for social, religious, cultural and spiritual customary purposes and a right to conduct ceremony on the application area, and subsequently, that the material speaks to the possession by the Gooniyandi People, of both rights, pursuant to their traditional laws and customs. An example of a statement pertaining to the claimants’ current exercise of a right to conduct ceremony on country is as follows:
Gooniyandi People still hold ceremony on country. When we have ceremony we all come together as one mob. We have ceremony for events like when a kid becomes a man. Gooniyandi People with children have ceremony when they are born. We also have ceremony on country for funerals. We also do our men’s law business out on country – affidavit of [Name deleted] at [46]. 
In addition to this, I note that the statements reproduced from the material above indicate the claimants’ knowledge of the ways in which the Gooniyandi ancestors also carried out ceremony on country, and that this knowledge has been passed to them by their predecessors in accordance with their traditional laws and customs. For this reason, and for the same reasons set out above, I consider that the right to conduct ceremony on the application area is, prima facie, established.
Result: Prima facie established.
The right to participate in cultural activities on the application area such as the right to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters of the application area
Statements expressed by the claimants in their affidavits indicate that the members of the claim group consider the passing on of knowledge to the younger generations a crucial and central apsect to Gooniyandi laws and customs, and that the continued practice of this pattern of teaching has facilitated the strength and maintenance of Gooniyandi culture. The following statements by a claim group member demonstrate this:
My grandmother taught me all about bush medicine and how to get it, when to get it, how to use it, and and how to make sure it is always there for the next generation. We take young people out on to my Country to teach them how to do all this.
When we go out on Country with the young people we camp, hunt, fish, cook, tell them the stories, show them the places for those stories, teach them the names for places, show them the bush tucker, show them the medicine. This is to make sure Gooniyandi culture is strong in the young people.
Usually the grandparents take responsibility for teaching the young kids about culture. It is the old people that do this. Aunties and Uncles go out bush with them also. We all sit around and tell those stories.
It is really important for us to be able to take those young people out there - affidavit of [Name deleted] at [31] to [34].  
The right asserted is one that has clearly been exercised both by the claimants’ predecessors, and one that continues to be exercised by the claimants today. Based on information of this nature, I consider that the right to participate in cultural activities on the application area such as the right to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters of the application area to be, prima facie, established.
Result: Prima facie established.

The right to participate in cultural practices relating to birth and death, including the right to conduct burials in the application area
I have discussed above in my reasons at s. 190B(5)(a), the way in which members of the native title claim group consider themselves associated with the application area through their birth and conception on, and family’s long-term occupation of, that particular area. In addition to this, the material speaks in detail of the rules and practices surrounding birth on country, and funerals and burials on country, pursuant to Gooniyandi traditional laws and customs. 
A claimant describes the practice of welcoming a baby to its country in the following way: 
When we have babies we take them to those places where galeroo is and put water on the baby’s head. This welcomes the baby to the country, to its country. Galeroo then knows this baby belongs to this country – affidavit of June Davis at [36].
Another claimant explains traditional burial practices undertaken by their ancestors as follows:
We have a cemetery on our country at Fossil Downs. We do burials white fella way there. There are a lot of our old people buried through both Area A and Area B. They were buried there traditional way in the caves wrapped in paperbark. There are skeletons everywhere those caves. Even little babies. From Painted Rock to right through those caves in Area A. A lot of them are there from that massacre at Calder’s Yard. We also have a lot of old people at Murderer’s Pool (Wimoorroorroo). Our old people used to use that place as a meeting place. There are burial sites all cross that range, Imanarra, that starts at Margaret Gorge – affidavit of June Davis at [22]. 
In my view, material of this nature is sufficient in allowing me to consider that the right to participate in cultural practices relating to birth and death, including the right to conduct burials in the area is, prima facie, established.
Result: Prima facie established.
The right to have access to, care for, maintain and protect places, sites and areas of importance under traditional laws, customs and practices in the application area
Claimants express through the statements contained in their affidavits, their sense of responsibility regarding protection of, and care for, the particular area within the wider Gooniyandi country with which they are connected, that is, their riwi. One claimant speaks of a particular painting site within her country which she seeks to protect in the following way:
There is a cave painting just up from there. On one side there is a crocodile painting. I cannot go there because it is a men’s place. We are told not to go there and that is how we keep the paintings safe.
The [Family’s name deleted] have to look after the hill where there are paintings. We went there a few weeks ago, where there are ranges on both sides, and we made sure that people were not going there. If someone damages the sites then bad luck will come to them and something will happen to them.
At Gap Spring there is a painting. My grandmother [Name deleted] has a painting there. My father told me when we used to camp near there. We do not go near that painting. My brother’s Jaryin Jaryin (birth totem) is near Gap Spring. He was a big emu that walked down there. My brother has a responsibility to look after that area. We have heritage rights there to look after our grandmother’s painting. There is also a spring there that bubbles. We are trying to look after all our paintings in the limestone – affidavit of [Name deleted] at [23] to [25]. 
These statements, in my view, indicate that the claimant was passed knowledge of these sites, the need to protect them, and the spiritual understanding of them, by her predecessors, through the pattern of teaching pursuant to Gooniyandi traditional laws and customs. Clearly there are rules and practices surrounding the protection of the paintings that the claimant feels an obligation to adhere to, as taught by her predecessors.
For this reason, I consider that the right to have access to, care for, maintain and protect places, sites and areas of importance is, prima facie, established.
Result: Prima facie established.
The right to speak for and make non-exclusive decisions about the application area
My understanding of this right, as expressed, is that in making the claim to such a right, the members of the group seek to exercise some form of control over the land and waters of the application area, and how they are used. In this way, it appears that the applicant seeks the recognition of rights in the nature of exclusive rights and interests, in areas where exclusive native title cannot be recognised (as clarified in the second paragraph of Schedule E). The case law dealing with the tension between non-exclusive rights expressed in exclusive terms suggests that such rights are unlikely to be upheld by the Court. In Ward HC, referring to a claim to a right to control access, it was held that:
It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead – at [52]. 
Similarly, in reference to the right to speak for country, the Court emphasised the exclusive nature of the right as follows:
A core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of others – at [88].
The Court has, in certain cases, deviated from these conclusions reached in Ward HC. In De Rose v South Australia [2002] FCA 1342 (De Rose), O’Loughlin J indicated a willingness to recognise the non-exclusive right to grant and refuse access to the application area to Aboriginal persons governed by the laws and customs of the native title holders – at [553]. Similarly, in the consent decision of Mundraby v Queensland [2006] FCA 436 (Mundraby), the Court recognised the non-exclusive right to ‘make decisions in accordance with traditional laws and customs concerning access thereto and use and enjoyment thereof by Aboriginal people’ bound by the laws and customs of the native title holders – at [3].
I note that there is a significant distinction to be made between the rights as upheld by the Court in De Rose and Mundraby, namely that the right in each of those cases was restricted in its application and operation to the members of the native title claim group, being Aboriginal people ‘governed by the laws and customs of the native title holders’. The non-exclusive right expressed in Schedule E in the application before me does not, in my view, provide the same qualification. In addition to this, in my view, there is a significant amount of uncertainty surrounding the decisions of a ‘non-exclusive’ nature to which this right may extend. 
In light of this, I consider that I am compelled to follow the reasoning of the Court in Ward HC. In areas where exclusive possession cannot be recognised, I am of the view, therefore, that the right to speak for and make non-exclusive decisions about the application area is not, prima facie, established.
Result: NOT prima facie established.
The right to light fires for domestic purposes and customary practices but not for the clearance of vegetation
The claimants discuss in detail the ways in which fire was used by Gooniyandi ancestors for a number of purposes, including cooking, signalling people, regenerating vegetation, and light and warmth during camping. An example of such a statement is as follows:
Fire was used very carefully. The old people would use it to signal other people at gathering time for ceremony and to get people together. They would tell them they have to come over. They also used fire to keep country healthy so the food would always grow. It was a type of farming. They would sit and talk about it first. They knew the best times to burn to get the plants to grow back best and to keep the animals fat for hunting. They also used fire for cooking. We still teach our kids cooking traditional way – affidavit of [Name deleted] at [36]. 
Claimants also speak in detail of the way in which fire is used today, for domestic purposes. The following statement is an example:
We also teach kids how to rub the sticks together to make fire. We make fires when we camp and we show the young people how to do that. I can light a fire anywhere on my Country under Gooniyandi law. If I asked to go camping on another riwi they would know I would light a fire. They would have no problem with that – affidavit of [Name deleted] at [40].
I note that the right as expressed here does not include the use of fire for the removal of vegetation. The information contained within the application, in my view, indicates that fire has been used in association with many social and cultural practices pursuant to Gooniyandi traditional law, and that claimants continue to pass on knowledge regarding the use of fire to the younger generations, as they themselves were taught by their predecessors.
In this way, I consider that the right to light fires for domestic purposes and customary practices but not for the clearance of vegetation is, prima facie, established. 
Result: Prima facie established.
The right to uphold, regulate, monitor and enforce customary law
In my discussion at the introduction to this condition of the registration test, I expressed my view that the task of the Registrar at s. 190B(6) is to be undertaken with reference to the definition of the phrase ‘native title rights and interests’ in s. 223(1). I note that one of the requirements of that condition is that the native title right or interest claimed must be one in relation to the land or waters of the application area. 
I consider that the effect of the right claimed here, as expressed, is an effect as between persons, namely the members of the native title claim group, rather than as between members of the group and the land and waters of the application area. Flowing from this, I do not consider that a right to uphold, regulate, monitor and enforce customary law falls within the definition of a native title right or interest, and therefore, do not consider that it is, prima facie, established.
Result: NOT prima facie established.
The right to maintain and transmit cultural heritage of the application area and the right to maintain and transmit cultural knowledge of the application area
In my view, there is little distinction to be made between a right to maintain and transmit cultural heritage of the application area, and the right to maintain and transmit cultural knowledge of the area. I have already discussed above the information within the factual basis material pertaining to the pattern of teaching on the application area the traditional knowledge of that area and its resources to younger generations, and my reasons for considering that the right to undertake such teaching is, prima facie, established. 
Noting the considerable amount of information before me addressing this right, and the nature of the knowledge asserted as being passed to claimants and their children in this way, for the same reasons expressed in relation to the right to participate in cultural activities on the application area such as the right to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters of the application area, I consider that the rights to maintain and transmit cultural heritage, and cultural knowledge, of the application area are, prima facie, established.
Result: Prima facie established.
The right to control access to, and use of, the application area by other Aboriginal People who seek access to use of the lands and waters
As discussed in my reasons above regarding a right to speak for and make non-exclusive decisions about the application area, it is my understanding of this right, as expressed, that it implies the exercise of some form of control by the claimants over the land and waters of the application area, namely that members of the group can effectively prevent the access to and use of the area by other Aboriginal people.
Noting that the right fails to provide for any qualification, or restriction on its operation to the members of the native title claim group only, for the same reasons expressed above in relation to the non-exclusive right to speak for country, I consider that the right to control access to, and use of, the application area by other Aboriginal People is not, prima facie, established.
Result: NOT prima facie established.
The right to regulate and resolve disputes among the native title claimants of the application area 
I note my reasons above regarding a right to uphold, regulate, monitor and enforce customary law, and my view that such a right, being a right exercised as between people, did not meet the definition of a native title right or interest, and consequently, that it could not be, prima facie, established.
In the same way, I consider that a right to regulate and resolve disputes among the native title claimants of the application area is not a right in relation to the land and waters of the application area, and for that reason, it cannot be, prima facie, established.
Result: NOT prima facie established.
The right to cultivate and harvest native flora and fauna according to traditional laws and customs
As already discussed above in relation to other rights and interests claimed, the material speaks in detail of the use by the claimants and their predecessors of the natural products of the application area. In addition to this, various statements indicate that claimants possess particular cultural knowledge regarding methods of harvesting those products for particular uses, including customary, ceremonial and domestic uses. The following statement is an example:
The old people used the wild bamboo for making spears. We have trees especially grown for  making spears now. We grow those trees up really straight and use them – affidavit of [Name deleted] at [37].
In light of information of this nature, and noting my reasons above for considering that both a right to forage on the application area, and a right to take, use and enjoy the natural resources of the area, were, prima facie, established, I am similarly of the view that a right to cultivate and harvest native flora and fauna according to Gooniyandi traditional laws and customs is, prima facie, established.
Result: Prima facie established.
Subsection 190B(7)
Traditional physical connection
The Registrar must be satisfied that at least one member of the native title claim group:
(a)	currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or
(b)	previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to the land or waters) by:
(i)	the Crown in any capacity, or
(ii)	a statutory authority of the Crown in any capacity, or
(iii)	any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.
The application satisfies the condition of s. 190B(7).
In Gudjala 2007, Dowsett J endorsed the approach of a Registrar’s delegate where the delegate’s reasoning reflected an understanding of the terms of the condition, namely the word ‘traditional’, with reference to the High Court’s decision in Yorta Yorta. His Honour held that:
The delegate considered that the reference to ‘traditional physical connection’ should be taken as denoting, by the use of the word “traditional”, that the relevant connection was in accordance with laws and customs of the group having their origin in pre-contact society. This seems to be consistent with the approach taken in Yorta Yorta. As I can see no basis for inferring that there was a society of the relevant kind, having a normative system of laws and customs, as at the date of European settlement, the Application does not satisfy the requirements of subs 190B(7) – at [89].
In light of these comments, I note that where the factual basis is insufficient in meeting the condition of s. 190B(5), it is unlikely to be able to satisfy the requirements of s. 190B(7).
With further reference to Yorta Yorta, I am of the view that for the purposes of s. 190B(7), the factual basis may also require information pertaining to an actual physical presence of the claim group member on the land – see Yorta Yorta at [184]. 
Mansfield J also considered the delegate’s task at s. 190B(7) in Doepel, where he held that:
Section 190B(7) imposes a different task upon the Registrar. It does require the Registrar to be satisfied of a particular fact or particular facts. It therefore requires evidentiary material to be presented to the Registrar. The focus is, however, a confined one. It is not the same focus as that of the Court when it comes to hear and determine the application for determination of native title rights and interests. The focus is upon the relationship of at least one member of the native title claim group with some part of the claim area. It can be seen, as with s. 190B(6), as requiring some measure of substantive (as distinct from procedural) quality control upon the application if it is to be accepted for registration – at [18]. 
In this way, I am of the view that the application must contain information which speaks specifically to a connection of the type prescribed by s. 190B(7), namely, a connection that is shown to be in accordance with the laws and customs of the group having their origin in the normative system of a society that existed at sovereignty.
Noting that my focus is to be upon the relationship of one claim group member with at least some part of the application area, I have focussed my attention on the information within the factual basis pertaining to a particular claim group member and their asserted connection, being June Davis.
June Davis is asserted as being a senior member of the native title claim group, born in 1956 on Fossil Downs pastoral station. Her supplementary affidavit at Attachment F5 provides that she is a descendant of Warrgi (her great-grandmother’s father), one of the apical ancestors named in Schedule A. Ms Davis asserts that both Parts A and B of the application area are her Country, and that her family ‘used to walk all around that country[...] [r]ight up to JK Yard and back down to Fossil Downs station’. This assertion appears to be based on the fact that this area was Ms Davis’ great-grandmother’s country.
There is a significant amount of information provided within Ms Davis’ affidavit indicating that she has, and continues to have, a physical presence on the land of the application area. Ms Davis clearly grew up traversing places across both Part A and Part B of the application area with her family, and continues to frequently visit those places today. The following statement is an example of this information:
We also have our holiday camp at JK Yard which is in Area B. We camp there and go fishing and hunting and all those kind of things. There is a special men’s story for that place so I can’t talk about it. We take the young people out there and tell them the stories and teach them fishing and hunting – at [8].
And also the following statement:
We take our kids out to places in Area A and Area B all the time. We tell them the stories and show them the Country. Right up through Black Hills Yard to Rockhole Yard. We take them to Imanarra where their ancestors came from and tell them about that. That Imanarra is a really special place. It is made of all of that range from Mt. Winifred – at [31].
In my view, these and similar statements throughout her affidavit reveal that the connection Ms Davis has with the application area is one that is in accordance with the traditional laws and customs of the Gooniyandi, which, as per my reasons above at s. 190B(5)(b), I was satisfied that the factual basis was sufficient to support. There are various aspects of that system of laws and customs described in my reasons at s. 190B(5)(b), that, in my view, are reflected in the statements above. Firstly, it is clear that Ms Davis’ time on country is often spent undertaking the pattern of teaching younger generations Gooniyandi law and custom in relation to the land and waters of the application area. As noted in my reasons above, this is a key element of the system of Gooniyandi laws and customs that is acknowledged and upheld by claimants. All of the claimants are able to describe the way in which such knowledge was passed to them by their predecessors, and the way in which they continue to pass this knowledge onto their own children.  
Secondly, Ms Davis continues to use and enjoy the natural resources of the application area, and in my view, does so in accordance with Gooniyandi traditional laws and customs. Where Ms Davis seeks to fish, hunt or gather beyond her own riwi, I note that she seeks the permission of the persons and families acknowledged as the traditional owners of that area – see at [12]. Similarly, Ms Davis’ statements indicate that traditional methods regarding hunting and cooking of food caught whilst camping on country are still used and taught by the claimants – see at [26] and [28].
Thirdly, the assertions made by Ms Davis regarding her family’s ownership of a specific part of the area covered by the application— see at [4] to [7], is in accordance with the concept of a person’s riwi or country, within the wider Gooniyandi Country. The concept of a individual claim group member’s riwi, and the associated rights and interests enjoyed by a claimant through the group’s recognition of their and their family’s particular connection to that area is also, as noted in my reasons above at s. 190B(5)(b), in my view, a fundamental aspect of the asserted system of Gooniyandi traditional laws and customs. 
On this basis, I have formed the view that the asserted connection held by Ms Davis in relation to the land and waters of the application area, is shown by the factual basis material to be one that involves a significant physical presence by Ms Davis on the land and waters (both throughout her life and presently), and one that is in accordance with Gooniyandi traditional laws and customs.
I am, therefore, satisfied that at least one member of the claim group currently has, or previously had, a traditional physical connection with a part of the application area.
The application meets the requirements of s. 190B(7).
Subsection 190B(8)
No failure to comply with s. 61A
The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s.61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

Section 61A provides:
(1)	A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
(2)	If :
(a)	a previous exclusive possession act (see s. 23B) was done, and
(b)	either:
(i)	the act was an act attributable to the Commonwealth, or
(ii)	the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23E in relation to the act;
a claimant application must not be made that covers any of the area.
(3)	If:
(a)	a previous non-exclusive possession act (see s. 23F) was done, and
(b)	either:
(i)	the act was an act attributable to the Commonwealth, or
(ii)	the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
(4)	However, subsection(2) and (3) does not apply if:
(a)	the only previous non-exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and
(b)	the application states that ss. 47, 47A or 47B, as the case may be, applies to it.
The application satisfies the condition of s. 190B(8). I explain this in the reasons that follow by looking at each part of s. 61A against what is contained in the application and accompanying documents and in any other information before me as to whether the application should not have been made.
Reasons for s. 61A(1)
Section 61A(1) provides that a  native title determination application must not be made in relation to an area for which there is an approved determination of native title. 
In my view the application does not offend the provisions of s. 61A(1). 
The geospatial assessment dated 25 October 2012 confirms that there are no determinations of native title falling within the external boundary of the application area. Noting that this assessment was completed a number of months ago, I produced an overlap analysis using the Tribunal’s iSpatial database. This showed that there was a minor overlap with the Bunuba consent determination (WC1999/019). I note, however, that the written description of the external boundary of the application area specifically excludes the Bunuba determination, such that I am satisfied that the application has not been made in relation to an area for which there is an approved determination of native title. 
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 of the application lists a number of general exclusion clauses, that is, areas within the external boundary of the application area that are not covered by the application, including ‘any area in relation to which a previous exclusive possession act, as defined in section 23B of the NTA was done and the act was attributable to the Commonwealth’. Paragraph 2(c) also excludes areas covered by previous exclusive possession acts attributable to the State of Western Australia. 
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).
I note that the application includes a claim to a right of exclusive possession, but that this right is only claimed ‘over areas where a claim to exclusive possession can be recognised’. In addition to this, the rights claimed are done so subject to the valid laws of the State and the Commonwealth such that I am satisfied that the application does not claim exclusive native title rights over areas covered by a previous non-exclusive possession act. 
Subsection 190B(9)
No extinguishment etc. of claimed native title
The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that:
(a)	a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or
(b)	the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or
(c)	in any case, the native title rights and interests claimed have otherwise been extinguished, except to the extent that the extinguishment is required to be disregarded under ss. 47, 47A or 47B.
The application satisfies the condition of s. 190B(9), because it meets all of the three subconditions, as set out in the reasons below.
Reasons for s. 190B(9)(a):
The application satisfies the subcondition of s. 190B(9)(a).
Schedule Q of the application provides that the native title claim group does not make a claim 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).
Schedule P of the application provides that the native title claim group does not make a claim of exclusive possession for any part of an offshore place.
Result for s. 190B(9)(c)
The application satisfies the subcondition of s. 190B(9)(c).
There is nothing in the application before me that indicates or suggests that the native title rights and interests claimed have been otherwise extinguished, such that I consider that this subcondition is met.
[End of reasons]

Attachment A
Summary of registration test result
Application name	Yarrangi Riwi Yoowarni Gooniyandi	
NNTT file no.	WC2012/010	
Federal Court of Australia file no.	WAD274/12	
Date of registration test decision	15 February 2013	

Section 190C conditions
Test condition	Subcondition/requirement	Result	
s. 190C(2) 		Aggregate result:
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)	Met	
		s. 62(2)(f)	Met	
		s. 62(2)(g)	Met	
		s. 62(2)(ga)	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)	NA	

Section 190B conditions
Test condition	Subcondition/requirement	Result	
s. 190B(2)		Met	
s. 190B(3)		Overall result:
Met	
	s. 190B(3)(a)	NA	
	s. 190B(3)(b)	Met	
s. 190B(4)		Met	
s. 190B(5)		Aggregate result:
Met	
	re s. 190B(5)(a)	Met	
	re s. 190B(5)(b)	Met	
	re s. 190B(5)(c)	Met	
s. 190B(6)		Met	
s. 190B(7)(a) or (b)		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