Registration test decision

Application name	Malyangapa Peoples	
Name of applicant	Daniel Bates, Jennifer Bates, Mary Ann Hausia, Leroy Johnson, Gerald Quayle	
NNTT file no.	SC2013/004	
Federal Court of Australia file no.	SAD251/2013	
Date application made	28 August 2013	
I have considered this claim for registration against each of the conditions contained in ss. 190B and 190C of the Native Title Act 1993 (Cwlth).
For the reasons attached, I do not accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth). 
For the purposes of s. 190D(3), my opinion is that the claim does not satisfy all of the conditions in s. 190B. 
	Date of decision:	17 January 2014	

___________________________________
Radhika Prasad
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 30 July 2013 and made pursuant to s. 99 of the Act. 

Reasons for decision
Introduction
[1]	This document sets out my reasons, as the delegate of the Native Title Registrar (Registrar), for the decision to not accept the Malyangapa Peoples claimant application (the application) for registration pursuant to s. 190A of the Act. 
[2]	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 
[3]	On 28 August 2013, the application was filed with the Federal Court of Australia (the Court) and the Registrar of the Court gave a copy of the application to the Registrar, 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.
[4]	Given that the claimant application was made on 28 August 2013 and has not been amended, I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply.  
[5]	Therefore, in accordance with s. 190A(6), I must accept the claim for registration if it satisfies all of the conditions in ss. 190B and 190C of the Act. If those conditions are not satisfied then, pursuant to s. 190A(6B), I must not accept the claim for registration. This is commonly referred to as the registration test.
[6]	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 contain certain specified information and documents. In my reasons below, I consider the requirements of s. 190C 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.
[7]	As discussed in my reasons below, I consider that the claim in the application does not satisfy all of the conditions in ss. 190B and 190C and therefore, pursuant to s. 190A(6), it must not be accepted for registration. A summary of the result for each condition is provided at Attachment A. 
Background
[8]	I note that the case manager for this matter sent a letter to the applicant on 26 September 2013. The letter contained the preliminary comments of a delegate of the Registrar in relation to the application for registration of the claim. The applicant was requested to respond to the letter by 4 October 2013.
[9]	I also note that a notice was issued in relation to the grant of nine tenements (EL4253, EL4255, EL4256, EL4276, EL4319, EL4320, EL4412, EL4521 and EL4572) with a notification date of 20 November 2013. The application was filed prior to receiving the future act notice and this has required me to use my best endeavours to finish considering the claim by the end of two months after the notification day, that is 20 January 2014 — see s. 190A(2). 
[10]	A further notice was issued in relation to the grant of three tenements (EL4255, EL4521 and EL5318) with a notification date of 27 November 2013 and a two month closing date of 27 January 2014.
Information considered when making the decision
[11]	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. 
[12]	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.
[13]	I understand s. 190A(3) to stipulate that the application and information in any other document provided by the applicant is the primary source of information for the decision I make. Accordingly, I have taken into account the following material in coming to my decision:
•	the information contained in the application and accompanying documents;
•	the Geospatial Assessment and Overlap Analysis (GeoTrack: 2013/1658) prepared by the Tribunal’s Geospatial Services on 2 September 2013 (geospatial assessment);
•	the additional information provided by the applicant on 19 December 2013; 
•	information provided by a case manager for this matter in respect of the condition at s. 190C(3); and
•	the results of my own searches using the Tribunal’s mapping database and registers. 
[14]	I have not considered any information that may have been provided to the Tribunal in the course of the Tribunal providing assistance under ss. 24BF, 24CF, 24CI, 24DG, 24DJ, 31, 44B, 44F, 86F or 203BK of the Act.
[15]	Also, I have not considered any information that may have been provided to the Tribunal in the course of mediation in relation to this or any other claimant application. 
Procedural fairness steps
[16]	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. Those rules 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 as follows:
•	On 2 September 2013, the case manager sent a letter to the State of South Australia (the State) enclosing a copy of the claimant application and accompanying documents. That letter informed the State that any submission in relation to the registration of this claim should be provided by 23 September 2013. The State has not provided any submission.
•	The case manager, also on 2 September 2013, wrote to inform the applicant that any additional information should be provided by 23 September 2013. 
•	On 4 October 2013, the applicant requested, by letter, an extension to provide additional material to support the registration of the claim. As the delegate, I allowed the applicant until 15 November 2013. 
•	On 8 October 2013, the case manager wrote to inform the applicant that any additional information should be provided by 15 November 2013 and that the delegate proposed to test the application for registration by 16 December 2013. The case manager, also on 8 October 2013, wrote to inform the State of the registration test date.
•	On 28 October 2013, the applicant requested, by letter, a further extension until mid to late December to provide the additional information. The letter noted that the legal representative was in the process of gathering material to support the claim and that this involved travelling to regional areas and required considerable time meeting with claimants and recording their evidence. 
•	On 5 November 2013, the case manager wrote to inform the applicant that the delegate had granted an extension until 19 December 2013 and that the delegate proposed to test the application by 31 January 2014. The case manager also wrote to inform the State that the delegate anticipated testing the application by 31 January 2014. 
•	On 5 December 2013, the case manager sent letters to the applicant and the State informing that nine tenements has been issued over the application area and that the delegate would use her best endeavours to test the application by 20 January 2014 to comply with the future act notice. 
•	On 19 December 2013, the applicant provided additional material to support the claim in the application for registration. This information was not provided to the State for comment as I had formed the view that the claim in the application did not meet the requirements of the registration test.

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. 
[17]	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. 
[18]	In coming to this conclusion, I understand that the condition in s. 190C(2) 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). As explained by Mansfield J in Northern Territory v Doepel (2003) 133 FCR 112; [2003] FCA 1384 (Doepel): 
37  [Section 190C(2)] does not involve the Registrar going beyond the application, and in particular does not require the Registrar to undertake some form of merit assessment of the material … 
39  [F]or the purposes of the requirements of s 190C(2), the Registrar may not go beyond the information in the application itself — see also [16], [35] and [36].
[19]	Accordingly, the application must contain the prescribed details and other information in order to satisfy the requirements of s. 190C(2). 
[20]	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. I do not consider they require any separate consideration by the Registrar. Paragraph 61(5)(c), which requires the application contain such information as is prescribed, does not need to be considered by me separately under s. 190C(2), as I already test these 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.
[21]	I now turn to each of the particular parts of ss. 61 and 62:
Native title claim group: s. 61(1)
[22]	Schedule A and Attachment A of the application provide a description of the native title claim group. The application indicates that the persons comprising the applicant are included in the native title claim group — see s. 62(1)(a) affidavits of the persons comprising the applicant. 
[23]	The application contains all details and other information required by s. 61(1). 
Name and address for service: s. 61(3)
[24]	The names of those persons comprising the applicant appear at Part A of the Form 1 — see p. 2. Part B provides the name and address for service of the applicant’s legal representative. 
[25]	The application contains all details and other information required by s. 61(3). 
Native title claim group named/described: s. 61(4)
[26]	Schedule A and Attachment A of the application contain a description of the persons in the native title claim group that appears to meet the requirements of the Act.
[27]	The application contains all details and other information required by s. 61(4).
Affidavits in prescribed form: s. 62(1)(a)
[28]	The application is accompanied by affidavits sworn by each of the persons who comprise the applicant. The affidavits are identical and the statements required by s. 62(1)(a) (i) to (iv) are contained in paragraphs (c) to (f) of the affidavits. 
[29]	I am also of the view that the statements in paragraph (g) are sufficient to meet the requirements of s. 62(1)(a)(v). This subparagraph requires the affidavits to set ‘out details of the process of decision-making complied with in authorising the applicant’. This requirement was introduced as a result of amendments to the Act by the Native Title Amendment (Technical Amendments) Act 2007 (Cwlth). Prior to the amendment, subparagraph (v) required only that the affidavits state ‘the basis on which the applicant is authorised as mentioned in subparagraph (iv)’. Subparagraph (iv) relevantly requires the affidavit to state ‘that 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’. The explanatory memorandum of this amending Act describes the motive behind the new wording of the subparagraph:
1.223	Some affidavits accompanying applications provide little or no information setting out the basis of authorisation, for example, merely setting out the date the authorisation meeting was held. This limits the utility of requiring the applicant to state the basis on which the applicant is authorised.
1.224 	[The Bill] would amend subparagraph 62(1)(a)(v) to provide that the applicant must include a statement in the affidavit accompanying the application 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. This should include indicating whether the decision-making process complied with paragraph 251[B](a) or 251[B](b).
[30]	In light of the above, I consider that the legislature’s intent was to ensure that an affidavit provided for the purposes of this provision indicates the process of decision making that was utilised by the native title group. Specifically, in my view, to meet the requirements of s. 62(1)(a)(v) the affidavit must at least identify whether the process used to authorise was of a kind described by paragraph 251B(a) or by paragraph 251B(b).  
[31]	The persons who jointly comprise the applicant each state in their affidavits that:
I was given the authority [to make the application and to deal with matters arising in relation to it] at a meeting of claim group members in Broken Hill, New South Wales on 7 July 2013 in accordance with the agreed process of decision making in relation to native title matters as there is no relevant traditional decision making process in relation to authorising matters of that kind — at paragraph (g). 
[32]	I understand from this statement that an agreed process of decision making was utilised to authorise the persons comprising the applicant as there is no relevant traditionally mandated process in relation to authorising matters of a similar kind. Therefore, the process that was utilised was of the kind contemplated by s. 251B(b). This, in my view, corresponds to the affidavits containing the information which the legislature was most concerned to ensure is provided. 
[33]	I also consider that the affidavits provide some detail of the decision making process including that it involved claim group members meeting and deciding which claim group members to authorise as the applicant. In addition, the affidavits provide details of the location and date of the claim group meeting. 
[34]	Having considered the terms of the Act in light of the explanatory memorandum that accompanied the 2007 amendments, I consider that the level of detail of the process of decision making is sufficient for the purposes of s. 62(1)(a). In this regard, I also note that s. 190C(2) is concerned with procedural matters and that I do not consider that the requirements of this condition entails assessing the validity of the information provided for the purposes of s. 62(1)(a), in particular, determining whether the applicant was in fact properly authorised — Doepel at [73], [74] and [87]. 
[35]	For the reasons stated above, I am satisfied that the application contains the information required by s. 62(1)(a).
[36]	The application is accompanied by the affidavits required by s. 62(1)(a).
Details required by s. 62(1)(b)
[37]	Subsection 62(2)(b) requires that the application 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)
[38]	Attachment B contains information that allows for the identification of the boundaries of the area covered by the application. That Attachment and Schedule B contain information of the areas within those boundaries that are not covered by the application.
Map of external boundaries of the area: s. 62(2)(b)
[39]	Attachment C contains a map showing the external boundary of the application area.
Searches: s. 62(2)(c)
[40]	Schedule D provides that the applicant has not undertaken any searches to determine the existence of any non-native title rights and interests in relation to the land and waters covered by the application.
Description of native title rights and interests: s. 62(2)(d)
[41]	A description of the native title rights and interests claimed by the native title claim group in relation to the land and waters of the application area appears at Schedule E. The description does not consist only 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.
Description of factual basis: s. 62(2)(e)
[42]	Attachment F contains information pertaining to the factual basis on which it is asserted that the rights and interests claimed exist. I note that there may also be other information within the application that is relevant to the factual basis.
Activities: s. 62(2)(f)
[43]	A list of the activities currently undertaken by members of the claim group on the land and waters of the application area appears at Schedule G of the application.
Other applications: s. 62(2)(g)
[44]	Schedule H provides that the applicant is not aware of any other application that has been made in relation to the whole or a part of the application area.
Section 24MD(6B)(c) notices: s. 62(2)(ga)
[45]	Schedule HA of the application provides that the applicant is not aware of any such notifications.
Section 29 notices: s. 62(2)(h)
[46]	Schedule I provides that the applicant is not aware of any notices under s. 29 of the Act.
Conclusion
[47]	The application contains the details specified in ss. 62(2)(a) to (h), and therefore contains all details and other information required by s. 62(1)(b).
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.

Requirement of s. 190C(3)
[48]	In my view, the requirement that the Registrar be satisfied that there are no common claimants arise where there is a previous application which comes within the terms of subsections (a) to (c) — State of Western Australia v Strickland [2000] FCA 652 (Strickland FC) at [9]. 
[49]	I note that the text of this provision reads in the past tense, however I consider the proper approach is to interpret s. 190C(3) in the present tense as to do otherwise would be contrary to its purpose. The explanatory memorandum that accompanied the Native Title Amendment Bill 1997 relevantly stated the following:
	29.25	The Registrar must be satisfied that no member of the claim group for the application … is a member of the claim group for a registered claim which was made before the claim under consideration, which is overlapped by the claim under consideration and which itself has passed the registration test [Emphasis added].
	…
	35.38	The Bill generally discourages overlapping claims by members of the same native title claim group, and encourages consolidation of such multiple claims into one application.
[50]	I understand from the above that s. 190C(3) was enacted to prevent overlapping claims by members of the same native title claim group from being on the Register of Native Title Claims (the Register) at the same time. That purpose is achieved by preventing a claim from being registered where it has members in common with an overlapping claim that is on the Register when the registration test is applied. I consider that this approach, rather than a literal approach, more accurately reflects the intention of the legislature. 
[51]	I also note that in assessing this requirement, I am able to address information which does not form part of the application — Doepel at [16]. 
Consideration 
[52]	The geospatial assessment identifies that the Adnyamathanha No. 1 application (SC1999/001; SAD6001/1998) (the Adnyamathanha No. 1 application) wholly overlaps the area covered by the current application. My search of the Register revealed that this application was accepted for registration and added to the Register on 31 March 1999. The application has not been removed from the Register since that date. In my view, the Adnyamathanha No. 1 application meets the conditions specified under subsections (a) and (b).
[53]	The condition at subsection (c) is met when an entry was made, or not removed, as a result of the previous application being considered for registration under s. 190A. I have accessed the Register and find that the entry for the Adnyamathanha No. 1 application has not been removed from the Register. I am satisfied that this application was entered on the Register as a result of it being considered for registration pursuant to s. 190A.
[54]	As the Adnyamathanha No. 1 application meets all of the criteria for a ‘previous application’ stipulated by s. 190C(3), I am therefore required to consider whether there are any members of the claim group for the previous application in common with the claim group for the current application.
[55]	Schedule O of the current application states the following:
(1)	The Adnyamathanha native title claim group has made a claim in relation to the whole of the area covered by this application.
(2)	There is no claimant in common existing between the claim group of this application and the Adnyamathanha claim group.
[56]	I have accessed from the Register, a description of the native title claim group for the Adnyamathanha No 1. application. That description provides that the Adnyamathanha native title claim group comprises the named persons, and ‘[a]ll those Adnyamathanha people presently alive’ who are named in the “Adnyamathanha Genealogy”, or the biological and adopted descendants of those persons named in that genealogy. 
[57]	In order to be satisfied that no person named in the claim group description for the Adnyamathanha No. 1 application is also a member of the claim group for the current application, I consider it necessary that I have regard to the contents of the Adnyamathanha Genealogy from that application. I consequently requested the case manager to access that document from the Tribunal file for the Adnyamathanha No. 1 application and provide me with a copy for my consideration at this condition of the registration test.
[58]	The Adnyamathanha Genealogy provides that Adnyamathanha persons are comprised of seven primary family groups, and subsequently sets out the family trees for each of those family groups. I have turned my mind to the entire contents of the Adnyamathanha Genealogy and find that there are no persons named within that document that also appear within the claim group description for the current application, or that possess any similarity to persons named in that description. Further, I note that there are no similarities in the names of any of the apical ancestors specified for each of the applications, and that the information pertaining to those apical persons provided in each of the applications confirms that there are no common apical ancestors between the applications. For this reason, I have formed the view that I am satisfied that no person included in the native title claim group for the current application was a member of the native title claim group for the previous application.
[59]	The application satisfies the condition 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.

Section 251B provides that for the purposes of this Act, all the persons in a native title claim group authorise a person or persons to make a native title determination application  . . . and to deal with matters arising in relation to it, if:
a)	where there is a process of decision–making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group . . . authorise the person or persons to make the application and to deal with the matters in accordance with that process; or 
b)	where there is no such process—the persons in the native title claim group . . . authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision–making agreed to and adopted, by the persons in the native title claim group . . . in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 
[60]	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. 
[61]	Attachment R is a document that has been signed by a legal officer of the South Australian Native Title Services Ltd (SANTS) and is dated 28 August 2013. This document states that the applicant has been authorised to make the application — at [1]. I must therefore consider whether the requirements of s. 190C(4)(b) are met.
[62]	For the reasons set out below, I am satisfied that the requirements set out in s. 190C(4)(b) are met.
The applicant’s authorisation material
[63]	The applicant’s authorisation material is contained in Attachment R. The applicant has also provided:
•	letter from SANTS dated 19 December 2013;
•	letter to the Malyangapa Claimants from SANTS dated 28 May 2013, which encloses a notice of the claim group meeting and two maps of the application area;
•	two purchase orders for the placement of advertisement; and 
•	notice of the meeting advertised in the Adelaide Advertiser on 1 June 2013.
[64]	I consider that it is appropriate to have regard to the additional material while considering the requirements of s. 190C(4)(b). Although Mansfield J commented that where ‘s 190C(4)(b) applies, s 190C(5) imposes requirements which must appear from the application itself’, his Honour was of the view that ‘[t]he interactions of s 190C(4)(b) and s 190C(5) … clearly … involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given’ — at [16] and [78]. I also note the comments of French J that:  
s 190C(4)(b) does not confine the Registrar to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction. Nor is the Registrar so confined by subs 190C(5) — Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) at [57].
[65]	This approach was followed by Collier J in Wiri People v Native Title Registrar [2008] FCA 574. I am therefore of the view that I am permitted to consider the additional material provided in support of authorising the applicant to make the application and deal with matters in respect of it. 
The application must contain the information specified in s. 190C(5)
[66]	Section 190C(5) contains a threshold test that must be met before the Registrar may be satisfied that the applicant is authorised in the way described in s. 190C(4)(b). Section 190C(5) provides that:
[i]f the application has not been certified as mentioned in s. 190C 4(a), the Registrar cannot be satisfied that the condition in [s. 190C(4)] has been satisfied unless the application:
(a)	includes a statement to the effect that the requirement set out in [s. 190C(4)(b)] has been met, and
(b)	briefly sets out the grounds on which the Registrar should consider that [the requirement in s. 190C(4)(b)] has been met. 
[67]	I note that the following statement is made in Attachment R of the application:
[t]he 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 of the other persons in the native title claim group — at [1].
[68]	In my view, the above constitutes a statement to the effect that the requirement in s. 190C(4)(b) has been met. 
[69]	As to the grounds on which the Registrar should consider that the requirement in s. 190C(4)(b) has been met, Attachment R provides the following relevant details:
•	all the persons who identify as the Malyangapa Peoples were invited to attend the meeting held on 6 and 7 July 2013 at Broken Hill Club Legion (the meeting);
•	at the meeting the application of a native title claim over areas within South Australia and New South Wales was discussed;
•	prior to the meeting, SANTS representatives met with persons who identify as Malyangapa on various occasions and discussed the possibility of a native title claim;
•	SANTS assisted in organising, funding and the holding of the meeting;
•	extensive genealogical and anthropological research has been undertaken to assist in the identification of all persons who identify as Malyangapa and information has been provided to SANTS to facilitate the identification of all the Malyangapa Peoples;
•	attendance records of the meeting indicate that descendants from each of the apical ancestors were present and that family groups were represented by those in attendance;
•	elders were present at the meeting and they contributed extensively to the discussion regarding the making of the native title claim;
•	the meeting was representative of the native title claim group;
•	information about the Form 1 and associated documents were distributed at the meeting, discussed and an opportunity was given to comment, provide feedback and engage in discussion about the terms of the proposed native title determination application including the description of the native title claim group;
•	the process engaged by the native title claim group was one of inclusiveness and openness;
•	the persons who comprise the applicant were selected after a vote by the native title claim group to ensure the ability of the persons to make decisions and successfully prosecute the native title claim;
•	in accordance with an agreed an adopted decision making process, there being no applicable traditionally mandated process, the persons comprising the applicant were authorised to make the application and deal with matters arising in relation to it; and
•	the applicant has made all reasonable efforts to ensure that the application describes or otherwise identifies other persons on whose behalf the native title claim is made and that those persons have been given an opportunity to participate in the decision making process utilised to make the application — at [4].
[70]	I am satisfied that the above information contains a brief outline of the grounds on which the applicant considers the Registrar should be satisfied that the requirements of s. 190C(4)(b) are met. I assess whether the material provided addresses those requirements below.
The application must address the requirements of s. 190C(4)(b)
The requirements of s. 190C(4)(b) 
[71]	Justice Mansfield, in Doepel, commented that s. 190C(4)(b) requires the Registrar to be satisfied that the applicant has been authorised by all members of the native title claim group, which ‘clearly … involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given’ — at [78].  
[72]	Justice Collier, in Wiri People v Native Title Registrar [2008] FCA 574 (Wiri People), noted that s. 190C(4) requires the Registrar to be satisfied as to the identity of the claimed native title holders, including the applicant, and that the applicant needs to be authorised by all the other persons in the native title claim group — at [21], [29] and [35]; see also Risk v National Native Title Tribunal [2000] FCA 1589 (Risk) at [60].
[73]	In Strickland, French J stated that the authorisation condition at s. 190C(4)(b) is not ‘to be met by formulaic statements in or in support of applications’ — at [57]. 
[74]	I note that s. 251B provides, for the purposes of s. 190C(4)(b), two alternative means of authorisation:
•	authorisation in accordance with a process required under the traditional laws and customs of the native title claim group — s. 251B(a); or 
•	authorisation in accordance with a process of decision making agreed to and adopted by the persons in the native title claim group — s. 251B(b).
[75]	In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 (Harrington-Smith), Lindgren J made the following comments in relation to s. 251B:
[w]hat it means for all the persons in a native title claim group to authorise a person or persons to make a native title determination application is laid down in s 251B of the [Act]. For convenience, I will refer to the processes of decision-making identified in paras (a) and (b) of s 251B as ‘traditional’ and ‘non-traditional’ respectively. 
A native title claim group is not given a choice between traditional and non-traditional processes of decision-making. Consistently with the [Act]’s recognition of traditional laws and customs as the source of native title, s 251B recognises traditional laws and customs as the primary source of the decision-making process. It is only if there is no traditional process of decision-making in relation to authorising things of the ‘application for a determination of native title’ kind, that para (b) applies — at [1229] and [1230].
[76]	Accordingly, I understand that a claim group is not permitted to choose between the two processes described in s. 251B. If there is a traditionally mandated process, then that process must be followed to authorise the applicant otherwise the process utilised for authorisation must be one that has been agreed to and adopted by the native title claim group — see also Evans v Native Title Registrar [2004] FCA 1070 at [7].
The applicant’s authorisation material
[77]	As noted above, in addition to the information contained in Attachment R of the application, the applicant has provided further authorisation material.
[78]	I note that SANTS’ letter dated 19 December 2013 contains further information about the decision making process adopted at the authorisation meeting, including:
•	SANTS procedure for notifying claimants of such meetings involves a field officer creating a claim group meeting notice which is then posted to all of the community members that SANTS is aware of and has addresses for on the SANTS database and also by public notification in relevant newspapers;
•	members of the Malyangapa Peoples native title group were notified of the meeting by direct postal mail, by notices in regional and state-wide newspapers and by bush telegraph or word-of-mouth;
•	the notices were advertised in the Adelaide Advertiser on 1 June 2013 and The Broken Hill Barrier Daily Truth on 19 June 2013;
•	members who were sent notices were asked to pass it on to anyone else they thought should receive the notice;
•	members were offered financial assistance to attend the meeting; 
•	SANTS research staff spent a considerable period in researching a potential native title claim group;
•	SANTS compiled the list of people to send notices through contact with the Malyangapa community via the NTSCORP Limited in New South Wales and the Mutawintji Park Management Board, both of who had prior contact with the Malyangapa community; 
•	an anthropologist from SANTS conducted further research to identify the apical ancestors of the Malyangapa through sources such as the Malyangapa Native Title Tribunal research report, the Mutawintji Park Cultural Association information booklet, consultation with other anthropologists and consultation with Malyangapa elders;
•	at the authorisation meeting, the meaning of s. 251B of the Act was discussed and the relevant decision making process was addressed and decided upon;
•	at the meeting it was decided that there is no traditional decision making process that would be appropriate for the kind of decision required for authorisation and therefore the group agreed to adopt a decision making process where:
—	each Malyangapa person present at the meeting over the age of 18 could vote;
—	voting would be by show of hands; and
—	resolutions would be passed if they were agreed to by a majority of those present and voting;
•	 resolutions were passed by an overwhelming majority of persons in attendance.
[79]	SANTS’ letter to the Malyangapa Claimants dated 28 May 2013 and the enclosed notice and maps included the following information:
•	date, time and address of the meeting;
•	the claim group description indicating who was invited to the meeting;
•	maps of the application area and information indicating that the application area would not overlap the Barkandji claim or the Wilyakali claim;
•	contact details of SANTS if any assistance or further information was required; and
•	request for the invitation to the meeting to be passed on to others who they thought should be invited.
Consideration 
[80]	I note that the first limb of s. 190C(4)(b) requires that all the persons comprising the applicant must be members of the native title claim group. 
[81]	In each of their affidavits, the persons who jointly comprise the applicant attest to being members of the native title claim group through direct descent from an apical ancestor. Attachment R provides that at the authorisation meeting members of the native title claim group discussed who should comprise the applicant and the persons were selected after voting. I have not been provided with any material that contradicts those statements. It follows that I am satisfied that the persons who comprise the applicant are all members of the claim group.
[82]	In respect of the second limb of s. 190C(4)(b), namely that the persons who jointly comprise the applicant are authorised by all the other members of the claim group to make the application and to deal with matters arising in relation to it, the decision making process utilised at the authorisation meeting must be identified — Doepel at [78]; Wiri People at [21], [29] and [35]. 
[83]	Section 251B identifies two distinct decision making processes, namely a process that is mandated by traditional laws and customs and one that has been agreed to and adopted by the native title claim group. If there is a traditionally mandated process, then that process must be followed to authorise the applicant. Attachment R states that the claim group does not have a decision making process that is traditionally mandated and therefore an agreed and adopted process was used during the authorisation meeting. Given this information, I have considered the applicant’s material in light of the requirements of s. 251B(b).
[84]	In the context of s. 66B, the requirements of s. 251B(b) were discussed by Stone J in Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (Lawson). Her Honour observed that the ‘effect of the section is to give the word “all” [in s. 190C(4)(b)] a more limited meaning than it might otherwise have’ — at [25]. Her Honour held that:
the subsection does not require that “all” the members of the relevant claim Group must be involved in making the decision. Still less does it require that the vote be a unanimous vote of every member. Adopting that approach would enable an individual member or members to veto any decision and may make it extremely difficult if not impossible for a claimant group to progress a claim. In my opinion the Act does not require such a technical and pedantic approach. It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process — at [25].
[85]	Justice Stone cited with approval the decision of Ward v Northern Territory [2002] FCA 171 (Ward), where O’Loughlin J identified deficiencies in the information provided in that matter regarding the authorisation process and listed a number of questions, which in substance, were required to be addressed before his Honour would consider making an order pursuant to s. 66B: 
Who convened it and why was it convened? To whom was notice given and why was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded? — Ward at [24], cited in Lawson at [26].
[86]	O’Loughlin J noted that it was not necessary that these questions be answered in any formal way but held that ‘the substance of those questions must be addressed’ — at [25].
[87]	In my view, the substance of those questions has been addressed in the material provided. The information reveals the reasons for the authorisation meeting and who it was convened by. It indicates that steps were taken to advise members of the native title claim group about the authorisation meeting, which included by public notice, letters and by word of mouth, and the notices indicate that the claim group members were advised of the date, time, place and purpose of the meeting. In my view, the steps taken were reasonable. The information also shows that the persons who were present at the meetings were given a reasonable opportunity to participate in the decision making process. In my view, the conduct of the meeting was such that those present agreed to use the adopted decision making process, and the actual process was inclusive, allowing those present an opportunity to participate and have their votes count. For instance, the claim group members who were present were able to participate through discussion and were given an opportunity to comment and provide feedback. The meeting is said to have been representative of the native title claim group. It was attended by descendants from each of the apical ancestors and family groups were represented by those in attendance. The meetings recognised a general consensus of views among the claim group, which resulted in the resolutions being passed by majority, including the authorisation of the persons comprising the applicant and the making of a native title determination application. 
[88]	In my view, the process adopted ensured that the persons who jointly comprise the applicant were authorised by all the other members of the claim group to make the application and to deal with matters arising in relation to it. 
[89]	For the reasons set out above, I am satisfied that the requirements of s. 190C(4)(b) are met.
[90]	The application satisfies the condition of s. 190C(4).

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.
[91]	Schedule B states that the boundaries of the area of land and waters covered by the application are described in Attachment B and shown on the map at Attachment C.  Schedule B also lists general exclusions to the application area.
[92]	Attachment B is a document prepared by the Tribunal’s geospatial services on 6 August 2013, which contains a metes and bounds description of the external boundaries of the application area, referencing lake shorelines, native title determination boundaries and geographic coordinate points. The description specifically excludes any area subject to the native title determination SAD6001/1998 Adnyamathanha People No. 1 (Stage 1) (SCD2009/003) and the registered native title determination application SAD163/2008 Dieri No. 2 Native Title Claim (SC2008/002).
[93]	Attachment C is a copy of a map titled ‘Malyangapa People Area 2’ prepared by the Tribunal’s geospatial services. The map includes:
•	the application area depicted by a bold dark blue outline;
•	a cadastral background with roads, rivers and lakes;
•	scalebar, coordinate grid, northpoint and locality map; and
•	notes relating to the source, currency and datum of data used to prepare the map.
Consideration 
[94]	Section 190B(2), as indicated by the wording of the provision itself, requires that I turn my mind to the description and map contained in the application and be satisfied of the sufficiency of the information provided there.
[95]	The geospatial assessment concludes that the description and map of the claim area are consistent and identify the application area with reasonable certainty. I agree with this assessment.
[96]	I note that Schedule B contains some general exclusions to categories of land and waters, which in my view provides a sufficiently certain and objective mechanism to identify areas that are not covered by the application and fall within the categories described — see Daniels for the Ngaluma People and Ors v State of Western Australia [1999] FCA 686 at [29] to [38].
[97]	In light of the above information, I am satisfied that the description and the map of the application area, as required by ss. 62(2)(a) and (b), are sufficient for it to be said with reasonable certainty whether the native title rights and interests are claimed in relation to particular land or waters.
[98]	The application satisfies the condition 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.
[99]	The following description of the native title claim group appears in Schedule A of the application:
	The Native Title Claimants are those Aboriginal people who:
(a)	Are the biological descendants of the following ancestors;
i)	Fanny Buugali Williams;
ii)	Hannah Quayle, daughter of Fanny Buugali Williams;
iii)	John Williams and Gilbert Thintyu Williams, sons of Fanny Buugali Williams and Cobham Tommy Williams;
(b)	Are identified and accepted as Malyangapa under traditional law and custom on the basis of descent from a Malyangapa person;
(c)	Are persons of Aboriginal descent who have been adopted into the claimant group [Emphasis in original].
[100]	Schedule A also refers to Attachment A which contains details of the apical ancestors referred to at paragraph (a) in the above description and their connection to various families who are said to comprise the claim group.
[101]	It follows from the description above that the condition of s. 190B(3)(b) is applicable to this assessment. Thus, I am required to be satisfied that the persons in the native title claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
Nature of the task at s. 190B(3)(b)
[102]	When assessing the requirements of this provision, I understand that I must determine whether the material contained in the application ‘enables the reliable identification of persons in the native title claim group’ — Doepel at [16] and [51]. 
[103]	In Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007), Dowsett J commented that s. 190B(3) ‘requires only that the members of the claim group be identified, not that there be a cogent explanation of the basis upon which they qualify for such identification’ — at [33]. His Honour also confirmed that s. 190B(3) required the Registrar to address only the content of the application — at [30].
[104]	In Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 (WA v NTR), Carr J commented that to determine whether the conditions (or rules) specified in Schedule A has a sufficiently clear description of the native title claim group:
[i]t may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently. It is more likely to result from the effects of the passage of time and the movement of people from one place to another. The Act is clearly remedial in character and should be construed beneficially — at [67]. 
Consideration
[105]	The description of the native title claim group is such that it comprises those persons who are the biological descendants of named apical ancestors; who are identified and accepted as Malyangapa, under traditional laws and customs, being descended from a Malyangapa person; or are those persons of Aboriginal descent who have been adopted. I understand the description is intended to be read as a whole and that identification and acceptance are intended to be qualifiers to the key form of membership, namely descent. This, in my view, makes the description sufficiently clear to ascertain whether any particular person is a member of the group. I will discuss this further in my consideration of the qualifiers below.
[106]	I note that I am confined, in my view, to the material contained in the application for the purposes of s. 190B(3) and I have therefore been informed by Attachment A and the applicant’s factual basis material contained in Attachment F only in reaching my view about this condition.
Apical ancestors
[107]	Describing a claim group in reference to named ancestors is one method that has been accepted by the Court as satisfying the requirements of s. 190B(3)(b) — see WA v NTR at [67]. 
[108]	The first element of the description, which requires a member to show biological descent from an ancestor identified in Schedule A, provides a clear starting or external reference point to commence any inquiry about whether a person is a member of the native title claim group.
[109]	In my view, as indicated by the factual basis contained in Attachment F, descent from a named ancestor provides the fundamental basis for membership to the Malyangapa people native title group — at 2.1 and 2.2. 
[110]	I am of the view that with some factual inquiry it will be possible to identify the persons who fit the first part of the description for the native title claim group.
Adoption 
[111]	In respect of membership by adoption, I note that in WA v NTR, Carr J accepted the approach of identifying members of the native title claim group by biological descendants, including by adoption, of named people. His Honour accepted the description without any qualification indicating whether the method of adoption was according to traditional laws and customs — at [67]. 
[112]	Membership by adoption has not been qualified to exist in accordance with the traditional laws and customs of the Malyangapa. I note that the factual basis material contained in Attachment F does not elucidate this method of membership. However, Attachment A confirms that claim group members are related by biological descent, including by adoption, of the named apical ancestors — at [2].
[113]	Having regard to Carr J’s acceptance of the approach of identifying membership by adoption without any qualification in WA v NTR, I am of the view that the description of this criterion is sufficient to ascertain, after some factual inquiry, the persons who are adopted by the descendants of the apical ancestors.
[114]	I am of the view that with some factual inquiry it will be possible to identify the persons who have been adopted as a Malyangapa person.
Identification and acceptance
[115]	As noted above, I am of the view that the description of the native title claim group is to be read as a discrete whole and identification and acceptance as a Malyangapa person is not meant to be a stand alone criterion. Rather, it is a qualifier to membership by descent or by adoption. I discuss below my reasons for coming to this view, including the relevant case law that has considered recognition as a criterion of itself.
[116]	I note that a description of membership containing qualifiers of identification and acceptance is not one with an external and objective point of reference from which to commence an inquiry.
[117]	While not addressing the requirements of s. 190B(3), Dowsett J in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 (Aplin) considers the complexities relating to the criteria for the membership of the claim group and the internal perspective of the group, which, as a matter of necessity, determines its composition. His Honour, whilst dealing with, among other things, a request to change the native title claim group description to include a criterion of descent from another apical ancestor not identified in the application, stated that:
for the purposes of the [Act], it is the claim group which must determine its own composition … The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area. It is not necessary that all of the members of the claim group be identified in the application. It is, however, necessary that such identification be possible at any future point in time. A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs — at [256]. 
[118]	Dowsett J referred to the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta) where it was found that the existence of a society depended upon mutual recognition within the group. His Honour also referred to the decision in Sampi v State of Western Australia [2005] FCA 777 where French J stated that identification as a member involved an internal perspective of the group. The decision of French J was appealed and the Full Court stated that:
[a] relevant factor among the constellation of factors to be considered in determining whether a group constitutes a society in the Yorta Yorta sense is the internal view of the members of the group … The unity among members of the group required by Yorta Yorta means that they must identify as people together who are bound by the one set of laws and customs or normative system — Sampi v State of Western Australia [2010] FCAFC 26 at [45]. 
[119]	Having regard to the information contained in Attachment F, it is my view that identification and acceptance as a Malyangapa person is linked to the language of the Malyangapa people and their connection to the land. It follows that, in my view, identity and acceptance as Malyangapa is inherently linked to the identity and acceptance of one’s biological descent from a named ancestor. I find support in my view from the wording of Schedule A that identification and acceptance as a Malyangapa is based on the person’s descent from a Malyangapa person — see paragraph (b). 
Conclusion
[120]	In my view, the description of the native title claim group contained in the application is such that, on a practical level, it can be ascertained whether any particular person is a member of the group.  Accordingly, focusing only upon the adequacy of the description of the native title claim group, I am satisfied of its sufficiency for the purpose of s. 190B(3)(b).
[121]	The application satisfies the condition 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.
[122]	The task at s. 190B(4) is to assess whether the description of the native title rights and interests claimed is sufficient to allow the rights and interests to be readily identified. In my opinion, that description must be understandable and have meaning — Doepel at [91], [92], [95], [98] to [101] and [123]. I understand that in order to assess the requirements of this provision, I am confined to the material contained in the application itself — at [16].
[123]	I note that the description referred to in s. 190B(4), and as required by s. 62(2)(d) to be contained in the application, is:
 a description of the native title rights and interests claimed in relation to particular land or 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 …
[124]	I will consider whether the claimed rights and interests can be prima facie established as native title rights and interests, as defined in s. 223, when considering the claim under s. 190B(6) of the Act. For the purposes of s. 190B(4), I will focus only on whether the rights and interests as claimed are ‘readily identifiable’. Whilst undertaking this task, I consider that a description of a native title right and interest that is broadly asserted ‘does not mean that the rights broadly described cannot readily be identified within the meaning of s 190B(4)’ — Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) at [60]; see also Strickland FC at [80] to [87], where the Full Court cited the observations of French J in Strickland with approval.
[125]	Schedule E of the application provides the following description of the claimed native title rights and interests:
(1)	Over areas where a claim to exclusive possession can be recognised (such areas where there has been no prior extinguishment of native title or where section 238 and/or sections 47, 47A or 47B apply) members of the native title claim group claim the right to possess, occupy, use and enjoy the lands and waters covered by the application (the application area) as against the whole world, pursuant to their traditional laws and customs.
(2)	Over areas where a claim to exclusive possession cannot be recognised, the nature and extent of the native title rights and interests claimed in relation to the application area are the non-exclusive rights to use and enjoy the land and waters in accordance with traditional laws and customs being:
(a)	The right to access and move about the [Application] Area;
(b)	The right to regulate access to and use of the [Application] Area by other Aboriginal People in accordance with traditional law and custom;
(c)	The right to live, to camp and, for the purpose of exercising the native title rights and interests, to erect shelters and other structures on the [Application] Area;
(d)	The right to hunt and fish on the land and waters of the [Application] Area without the limitation of what purpose;
(e)	The right to gather and use the natural resources of the [Application] Area such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers as well as materials for fabricating tools and hunting implements;
(f)	The right to share and exchange the subsistence and other traditional resources of the [Application] Area;
(g)	The right to use and take the natural water resources of the [Application] Area;
(h)	The right to cook on the [Application] Area and to light fires for domestic purposes but not for the clearance of vegetation;
(i)	The right to engage and participate in cultural activities on the [Application] Area including those relating to births and deaths;
(j)	The right to conduct burials on the [Application] Area;
(k)	The right to conduct ceremonies and hold meetings on the [Application] Area;
(l)	The right to teach on the [Application] Area the physical and spiritual attributes of locations and sites within the [Application] Area;
(m)	The right to speak authoritatively about the [Application] Area among other Aboriginal People who seek access to or use of the lands or waters in accordance with traditional law and custom;
(n)	The right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the [Application] Area;
(o)	The right to be accompanied on the [Application] Area by those people who, though not native title holders, are:
(i)     spouses of native title holders; or
(ii)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the [Application] Area; or
(iii)   people who have the rights in relation to the [Application] Area according to the traditional laws and customs acknowledged by native title holders; or
(iv)   people required by native title holders to assist in, observe, or record traditional activities on the [Application] Area.
(3)	The rights described in paragraphs 2(b), (c), (d) and (e) are traditional rights exercised in order to satisfy personal, domestic, or communal needs.
(4)	The native title rights and interests are subject to:
(a)	the valid laws of the State of South Australia and the Commonwealth of Australia; and
(b)	the rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State of South Australia;
(c)	the traditional laws and customs of the native title claim group.
Consideration
[126]	For the purposes of s. 190B(4), I am satisfied that the rights and interests described above are understandable and have meaning.
[127]	Although the claim to exclusive possession is broadly asserted, I am of the view that it does not offend the requirements of this provision — Strickland at [60].
[128]	I find that the description of the native title rights and interests claimed is sufficient to allow the rights and interests to be readily identified and therefore the application satisfies the condition of s. 190B(4).
[129]	The application satisfies the condition 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.
[130]	I consider each of the three assertions set out in the three paragraphs of s. 190B(5) in turn in my reasons below.
The requirements of s. 190B(5) generally
[131]	Whilst assessing the requirements of this provision, I understand that I must treat the asserted facts as true and consider whether those facts can support the existence of the native title rights and interests that have been identified — Doepel at [17] and Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC) at [57] and [83].
[132]	Although only a general description of the factual basis is required, the Full Court in Gudjala FC noted that ‘the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar … and be something more than assertions at a high level of generality’ — at [92]. 
[133]	Accordingly, although the facts asserted are not required to be proven by the applicant, I consider the factual basis must provide sufficient detail to enable a ‘genuine assessment’ of whether the particularised assertions outlined in subsections (a), (b) and (c) are supported by the claimant’s factual basis material. Further, I note that where the applicant’s material contains assertions that ‘merely restate the claim’ or ‘is really only an alternative way of expressing the claim or some part thereof’, that material ‘does not assist in building the factual basis necessary for assessing the application’ ― Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009) at [28] and [29] and Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215 (Anderson) at [43] and [48]. 
[134]	I am therefore of the opinion that the test at s. 190B(5) requires adequate specificity of particular and relevant facts within the claimants’ factual basis material going to each of the assertions, before the Registrar can be satisfied of its sufficiency for the purpose of s. 190B(5). 
[135]	The factual basis material is contained in Attachments A and F. The applicant has also submitted directly to the Registrar the following additional material in support of the factual basis:
•	the affidavit of Harold John Hunt sworn 14 December 2013;
•	the unsworn affidavit of [name removed]; and
•	the unsworn affidavit of Gerald Quayle. 
[136]	I proceed with my assessment of the sufficiency of the factual basis material by addressing each assertion below.
Reasons for s. 190B(5)(a)
The requirements of s. 190B(5)(a)
[137]	In Gudjala 2007, Dowsett J indicated that the condition at s. 190B(5)(a) required ‘evidence [of] an association between the whole group and the area’, although not ‘all members must have such association at all times’ — at [52]. His Honour also commented that ‘there must be evidence as to such an association between the predecessors of the whole group and the area over the period since sovereignty’ — at [52].
[138]	The factual material must also be sufficient to support an asserted association with the entire claim area, rather than an association with only a part of it, and must contain more than ‘very broad statements’, which for instance have no ‘geographical particularity’ — Martin v Native Title Registrar [2001] FCA 16 (Martin) at [26]; see also Corunna v Native Title Registrar [2013] FCA 372 at [39] and [45] where Siopis J cited the observations of French J in Martin with approval.

Information provided in support of the assertion at s. 190B(5)(a)
[139]	Attachment A provides information which is relevant to whether the ancestors and their descendants were associated with the application area:
•	The native title claim group are the Malyangapa who are defined by cognatic descent from the ancestors who owned the country surrounding Cobham Lake (in north-west New South Wales) and to the north eastern shores of Lake Frome in South Australia (which forms part of the lower western boundary of the application area).
•	Fanny Buugali Williams, an apical ancestor, was born in 1856 and died in 1916. Her daughter, Hannah Quayle (nee Hamilton) another apical ancestor, was born around 1873 at Morden Station and died in 1965 at Wilcannia (both locations are outside the application area, within New South Wales). Her second husband’s mother was born during the early 1800s, married at Salisbury Downs Station (outside the application area in far north-west New South Wales) and died in 1920 at Morden Station. Her children from her second marriage, John Williams and Gilbert Thintyu Williams, are both apical ancestors. 
•	Ancestor Hannah Quayle (nee Hamilton) married John (Jack) Quayle. They had nine children who were either born or died within New South Wales, outside the application area.
•	Ancestor John Williams was born around 1890 at Cobham Station (outside the application area, within New South Wales). 
•	Ancestor Gilbert Thintyu Williams was born in 1884 at Bulla Downs Station or in 1892 at Connulpie Station (located in New South Wales). He died in 1937 at Broken Hill (outside application area, in western New South Wales). He had one son from his first marriage and four sons from his second marriage. One of his sons died in 1999 at Wilcannia (outside application area, in New South Wales).
[140]	Attachment F provides the following information about the association that the current members of the claim group have, and the association their predecessors had, with the application area:
•	The Malyangapa claimants identify as Malyangapa people because:
—	they are the direct descendants of those Aboriginal persons who were in occupation of the application area at least at the time of first contact;
—	they understand that their ancestors were members of a distinct society, who identified themselves as Malyangapa-speaking people, and they were also a part of a wider ‘cultural region’, which acknowledged and shared laws and customs; and
—	they identify with the land and waters comprising the application area as Malyangapa country because elders continue to maintain and pass on their traditional knowledge, in accordance with Malyangapa traditional laws and customs, and so the claim group remain informed about their country — at [1]. 
•	Historical and ethnographic accounts from the 1880s generally record Malyangapa country as belonging to the Yancannia district (within New South Wales) and from Lake Cobham, Milparinka (within New South Wales) and adjacent country. In the 1930s, the country was described as being mostly in the far north-west corner of New South Wales but belonging to the Lakes group of South Australia. The Lakes group was a wider regional group that shared a number of features including a common form of social organisation. The territory of the Lakes group included the area around a number of salt lakes, such as Lake Frome, and ‘fresh water lakes in the north-eastern corner’ — at [3.6]. These records also indicate that the Malyangapa along with about seven other groups in the area spoke a similar language — at [3.1] to [3.7]. 
•	Records from the 1940s to the 1990s generally place the Malyangapa language and country near Lake Frome in South Australia and then east towards Milparinka in New South Wales — at [3.8] to [3.15]. 
•	Malyangapa country was described as ‘one of thousands of parallel sand dunes, … salt lakes ‘numerous dry lakes’ … and on the edge of Lake Frome, some mound springs’ — at [3.15]. It was noted that the people who lived in the area had great knowledge of their country as ‘[k]nowing where water … could be found near the surface was a matter of life and death in this country’ — at [3.15].
•	The Malyangapa is part of a small subgroup of languages, the Yarli subgroup, which is spoken in the far north-west corner of New South Wales and adjacent areas in South Australia and Queensland. The Yarli language subgroup is one of four different language affiliations associated with the groups of the ‘Corner Country’. The tribes of the Corner Country are connected through Dreaming or mura stories — at [3.16] and [3.18].
•	The Malyangapa people and the boundaries of their country overlap other language groups, namely the Bandjigali, Wadigali and the Wiljali — at [3.17].
•	Harold Hunt, a senior Malyangapa man, says that he and his siblings grew up travelling around and living on Malyangapa country at places such as Tibooburra, Coally Bore, Milparinka and Mount Browne (all these locations are within New South Wales). Milparinka is where his mother was born and on her birthday, he travels with his family across her birthplace and to surrounding country — at [6.3.3]. He also says he has taken his daughter to Cobham Lake in New South Wales and the surrounding country — at [6.3.7].
•	Earlier generations of Malyangapa people made camps at various places on Malyangapa country such as Yancannia Station and Mount Wood (both located in New South Wales). Gerald Quayle speaks of camping on country since the late 1970s and Harold Hunt says that he travelled around and camped on Malyangapa country — at [6.3.3]. 
[141]	In his affidavit, Harold John Hunt states that:
I am a senior Malyangapa man and a member of the Malyangapa Peoples native title claim group. I am the oldest member of the Malyangapa Peoples native title claim group.
…
My grandmother taught me that the great spirits say it is our land. The great spirits say we belong to this land.
We belong to our land, our country. The land tells the story of who we are and why we belong to this land. We are linked to the land and our laws and customs are written in the land. Knowing our stories means knowing our laws and customs and the boundaries of our land.
…
My grandmother Granny Quayle and her family lived and worked on this land.
My father [was] a non-Aboriginal man but he learned and respected and worked on this land.
As a child I travelled through this land while my parents worked on it. 
…
I have continued to travel on this country throughout my life. 
I have visited this land many times camping, connecting and remembering. Caring for my country and checking on all the places — at [1], [4], [5], [8] to [10], [14] and [15].
[142]	[Name removed] says in her affidavit:
I grew up in Wilcannia but my dad lived and worked all over Malyangapa land from the Queensland border down through Tibooburra and Malparinka [sic] and to Broken Hill and across through South Australia to Lake Frome [which forms part of the lower western boundary of the application area; the other locations are all outside the application area and are all located within New South Wales]. 
…
[Granny Quayle, Granny Moysie and my dad] taught me how to hunt and gather on the land. Where to find food, where to hunt and fish. What to eat and what not to eat. How to survive on the land when we had nothing. …
They also taught me stories of how the land was created and where the boundaries of Malyangapa land are.
Back in those days my dad and all the men had to keep moving in order to survive.
They had to go where the work was and all they did was travel their country, up and down and all over. They worked all the stations around including Quinyambie [outside the application area, near the South Australian and New South Wales border], Mona Vale and Yancannia [both of these locations are outside the application area, within New South Wales].
My dad was a horse breaker, wood-chopper and bore sinker. … He worked all through western South Australia.
…
Everything we do is related to our connection with the land. It always has been and always will be — at [4], [7] to [11] and [14].
[143]	Gerald Quayle, in his affidavit, states that:
Malyangapa Land goes from Mutawintji north [outside the application area, in New South Wales] to the Buloo overflow [outside the application area, in New South Wales] and West to Lake Frome.
I have identified with this land all of my life. I have always been connected with it through Malyangapa Law. 
I have a responsibility to my ancestors and my descendants to care for that country.
This land has been Malyangapa country since time began.
I have been told by my family since I began to learn our laws and customs the boundaries of Malyangapa land and that the Western boundary is along Lake Frome. 
The Malyangapa Nutgee stories I have been told which are our dreaming stories including the Rainbow Serpent story and the [names removed] story always described the land along the Eastern edge of Lake Frome all the way through to Mutawintji National Park in NSW as belonging to our people. 
I have passed these stories on to my children and any other young Malyangapa people who have wanted to learn, as they were passed on to me. 
I have visited this land when I was very young with my family as my Grandmother and Father lived for some time on this land near Lake Frome. 
…
My grandmother Granny Quayle and her family lived and worked on this land.
My father … and his brothers … lived and worked on this land. 
During the Second World War … most of my relatives worked on this land.
At the time Kidman & Co owned Yancannia Station in NSW and Quinyambie in South Australia [outside the application area, near the New South Wales border]. The movement of workers between these stations happened a lot.
My father was a bore sinker and his work took him all over Malyangapa land both in NSW and South Australia. 
He lived and worked on this land most of his life both in the employment of Kidman & Co and as an independent contractor. 
From the 1970’s it became more difficult to visit this land due to working conditions having changed on the stations — at [7] to [14] and [16] to [23].
Consideration
[144]	Having considered the information before me, I am of the view that the factual basis is not sufficient to support the assertion that the Malyangapa native title claim group has, and the predecessors of those persons had, an association with the area covered by the application.
[145]	The factual basis contained in Attachment F primarily identifies the boundaries of the Malyangapa country. Upon my understanding of the asserted facts, the Malyangapa country is said to encompass a wide area of land and waters in South Australia and north-west New South Wales, and the historical records and the current accounts report it extending into parts of Queensland. This country is said to include the application area, in that Attachment F refers to ‘Lake Frome and its surrounds’ as being within Malyangapa country. 
[146]	The material indicates that since at least the 1880s a group that spoke the Malyangapa language resided within the wider Malyangapa country. This group was familiar with the country, as they knew where to find water for survival.
[147]	Whilst Attachment F cites various historical accounts of the Malyangapa in the wider country, which extends across the three states, there is scant information or asserted facts of any specificity that relate to the application area or its surrounds. In addition, that Attachment contains general assertions of the native claim group’s association with the land and waters within the claim area and also contains more specific references but to locations in New South Wales which are not proximate to the application area. Attachment A, which includes asserted facts about each of the named ancestors, does not contain facts that support the assertion that these persons were associated with the claim area. As noted above, almost all of the places identified in reference to the ancestors are in New South Wales and are not proximate to the application area.   
[148]	The information within each of the affidavits contains very limited reference to actual places or details of the nature of the claimants’ association or that of their predecessors. Predominantly, the affidavits contain broad references such as to ‘our land’, ‘Malyangapa country’ and ‘our country’. 
[149]	Gerald Quayle, for instance, states that his grandmother, apical ancestor Hannah Quayle, and her family lived (near Lake Frome, which forms part of the western boundary) and worked on this land, as did his father. When speaking of his father, he states that ‘his work took him all over Malyangapa land both in NSW and South Australia’. In that regard, he refers to ‘Yancannia Station in NSW and Quinyambie in South Australia’ and the movement between these stations. I do not understand these stations to be proximate to the claim area, albeit I understand they are within the wider Malyangapa country. He also refers to the Dreaming stories that describe Malyangapa land as extending from Lake Frome to Mutawintji National Park, which is located past the eastern boundary of the application area within New South Wales. In the affidavit of [name removed], the only facts of any specificity to her association, or that of her predecessors, with Malyangapa country are contained in the statement that she ‘grew up in Wilcannia but [her] dad lived and worked all over Malyangapa land from the Queensland border down through to Tibooburra and [Milparinka] and to Broken Hill and across through South Australia to Lake Frome’. When referring to specific areas where her father worked and travelled, she cites Quinyambie (located near the border of South Australia and New South Wales), Mona Vale (located within New South Wales) and Yancannia (which is also located within New South Wales). The affidavit of Harold John Hunt contains only references to ‘our land’ or ‘our/my country’ and states that he and his family travelled ‘through that country’. 
[150]	I note that I understand the references to Lake Frome contained in Attachment F and the affidavits to be the only references in the factual basis to a specific place located within or proximate to the application area. I understand that no other places or locations, within or proximate to the application area, are identified in the factual basis. In my view, the factual basis does not contain sufficient examples and asserted facts with geographical particularity to support the assertion of an association between the whole group and the area covered by the application — see Martin at [26] and Gudjala 2007 at [52].
[151]	The information within Attachments A and F and the affidavits, in my view, contain insufficient facts to support the assertion that the identified ancestors of the claim group were associated with the application area and that there has been continued association through to the current claim group. In my view, the information provided in support of this assertion is predominantly at a high level of generality and does not provide sufficient examples and asserted facts with geographical particularity required to support the assertion at s. 190B(5)(a).
[152]	Although the applicant is not required to provide proof of the asserted facts, I am of the view that the factual basis must provide sufficient detail to enable a ‘genuine assessment’ which do not primarily rely on general assertions — Gudjala 2009 at [28] and [29] and Anderson at [43] and [48]. 
[153]	Based on the information before me, I am not satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(a).
Reasons for s. 190B(5)(b)
The requirements of s. 190B(5)(b)
[154]	Section 190B(5)(b) requires a factual basis which is sufficient to support the assertion that there are traditional laws acknowledged and traditional customs observed by the native title claim group that give rise to the claim to native title rights and interests.
[155]	I understand that this subsection is similarly worded to s. 223(1)(a) and, accordingly, I consider that it is necessary to apply s. 190B(5)(b) in light of the case law regarding the definition of ‘native title rights and interests’ found in s. 223(1)(a). 
[156]	In Gudjala 2007, Dowsett J observed that to satisfy s. 190B(5)(b):
[t]here must be a factual basis sufficient to support the assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the claim group, which laws and customs give rise to the Native Title claim. That factual basis must be capable of demonstrating that:
•	there are traditional laws and customs;
•	acknowledged or observed by the Native Title claim group; and
•	giving rise to the group’s claim to Native Title rights and interests — at [62].
[157]	His Honour was of the view that to be satisfied that there is a sufficient factual basis for this assertion, the facts must support the assertion of a traditional connection as explained by the High Court in Yorta Yorta — at [26].
[158]	In light of Yorta Yorta, there must be a sufficient factual basis:
•	to identify the pre-sovereignty society from which the claim group is descended;
•	to support the assertion that the laws acknowledged and customs observed by the claim group derive from the pre-sovereignty society’s normative system; and
•	that those laws and customs have been passed down from generation to generation, without substantial interruption — at [37], [38], [42] to [50], [53], [54], [56] and [87].
[159]	Dowsett J further commented that although ‘apical ancestors are used only to define the claim group’, the applicant ‘at some point … must explain the link between the claim group and the claim area’ and ‘[t]hat process will certainly involve the identification of some link between the apical ancestors and any society existing at sovereignty’ — Gudjala 2007 at [66].
[160]	I note that in Gudjala 2009, Dowsett J also discussed some of the factors that may guide the Registrar in assessing the asserted factual basis, including:
•	that the factual basis demonstrate the existence of a pre-sovereignty society and identify the persons who acknowledged and observed the laws and customs of the pre-sovereignty society — at [37] and [52];
•	that if descent from named ancestors is the basis of membership to the group, that the factual basis demonstrate some relationship between those ancestral persons and the pre-sovereignty society from which the laws and customs are derived — at [40]; and
•	that the factual basis contain an explanation as to how the current laws and customs of the claim group are traditional (that is laws and customs of a pre-sovereignty society relating to rights and interests in land and waters). Further, the mere assertion that current laws and customs of a native title claim group are traditional because they derive from a pre-sovereignty society from which the claim group is said to be descendant, is not a sufficient factual basis for the purposes of s. 190B(5)(b) — at [29], [54], and [69].
Information provided in support of the assertion at s. 190B(5)(b)
[161]	Attachment F provides the following relevant information:
•	The Malyangapa belong to a distinct and identifiable society that shares commonalities of social organisation, kinship and ritual practice with other groups in the wider ‘Eastern or Lakes’ region — at [4.1].
•	The Malyangapa people have a system of social organisation and kinship where the tribe is divided into two classes with children belonging to their mother’s class. Marriage outside the group and marriage within one’s own class is not permitted — at [4.3.1]. A rule of avoidance is prescribed between siblings — at [4.3.2].
•	The Malyangapa have various ceremonies including those relating to birth and initiation — at [4.4.1]. In the 1880s, the Malyangapa were observed to hold corroborees, paint their bodies with stripes of pipe-clay and bird feathers were stuck to their backs and chests by blood. They were also observed to practice burial rites — at [4.4.2]. In 1963, apical ancestor Hanna Quayle was recorded describing the traditional burial of her uncle — at [4.4.3]. In 1967, it was recorded that the Malyangapa practiced birth related ceremonies, which was associated with a story about a mythical hero — at [4.4.4].
•	Early historical accounts from the 1880s record the Malyangapa using resources within their country as well as that of their neighbours. They used opossum and kangaroo skins to make rugs and water bags, murradutta leaves were dried for chewing, and they hunted kangaroos, opossums, lizards, snakes, ducks, crows, kites, grubs and gathered nardoos and portulaca for food — at [4.5.1]. Nets were used to capture ducks and emu — at [4.5.2]. They would cook their food on the fire or the ashes. They used gypsum or kopi to paint their skins for corroborees, burial ceremonies and for cave paintings — at [4.5.1]. Earth and charcoal was applied to wounds and herbs were used as a laxative — at [4.5.2].
•	The Malyangapa believe in a number of Dreaming stories or mura, which they share with neighbouring groups. The ancestral beings (or mura) formed the country and named it as they travelled across it. The Dreaming or mura tracks and the associated stories ‘criss-cross’ through their land — at [4.6.1]. The Dreaming story of the rainbow serpent is shared by the Malyangapa people and other groups and it said that the Dreaming being travelled the country of the Yarli language groups including across the wider Malyangapa country, predominantly in north-west New South Wales and parts of South Australia — at [4.6.3] and [4.6.4].
•	A mura place name is given to a person by their father at birth and again at initiation — at [4.6.2]. This gives the person rights to travel along the mura track, sing the associated songs and enact the drama commemorating the mura — at [4.6.2]. When the person dies, their name is not spoken for years — at [4.6.1].
•	Malyangapa traditional law and custom requires the maintenance, conservation, and protection of religious sites, song cycles, beliefs and practices. Responsibility for site and heritage protection is a serious responsibility, and this is reflected in the Malyangapa peoples’ commitment to the protection and maintenance of Mutawintji National Park in New South Wales — at [6.3.14].
•	Harold Hunt says that his grandmother ancestor Hannah Quayle and his mother hunted kangaroos, emus, goannas and wild birds. His mother hunted with a shotgun and rifle and also caught catfish, perch and cod from the river — at [6.3.4]. He recalled eating native fruit and vegetables collected from the bush by his mother — at [6.3.5]. He says that whilst camping on Malyangapa country, they lit fires to cook food and keep warm — at [6.3.8]. He refers to witnessing people mourning the traditional way — at [6.3.9] and [6.3.10].
•	Gerald Quayle says that he fishes and traps rabbits whenever he is out camping on country — at [6.3.3] and [6.3.4]. He also says that the Malyangapa would meet with other groups at Mutawintji in New South Wales for trading purposes, meetings, rain making, wedding and initiation ceremonies. Today the Malyangapa and other groups gather at Mutawintji for cultural purposes and to hold meetings — at [6.3.11].
•	The granddaughter of ancestor Hannah Quayle indicates that medicine was used at Mutawintji National Park in New South Wales and this was a place of significance for the Malyangapa and other groups as it had art sites, waterholes and men’s and women’s sites — at [6.3.5] and [6.3.14].
[162]	Harold John Hunt states in his affidavit:
I was taught by my elders, my grandmother Granny Quayle, father … who learned and respected the Aboriginal lore and other senior people. They were taught by their elders.
My grandmother taught me that the great spirits say it is our land. The great spirits say we belong to this land.
We belong to our land, our country. The land tells the story of who we are and why we belong to this land. We are linked to the land and our laws and customs are written in the land. Knowing our stories means knowing our laws and customs and the boundaries of our land.
This is why our stories have been passed down by our elders and why we will continue to pass them down to my children and grandchildren and now my great grandchildren are very interested and like to travel into that country.
I continue to acknowledge and live by these laws and customs that have been passed to me by my elders 
…
They taught me stories about the land and the laws and customs of the land while we travelled on it. 
They taught me where we could go or were forbidden to go. Where we could hunt and what we could hunt. 
Travelling through that country with my parents was always about learning our laws and customs. 
…
Other groups always sought permission should they have a need to enter another tribal area.
They should still ask permission to travel on our country, however that rarely happens these days due mainly to having been forcible removed from family and relocated many decades ago.
…
Anyone else travelling on to the lake country would have to ask our permission or they would be punished. Punishment would vary depending on why they had entered the land. If they were desperate for food there might be no punishment. If they were a warring party then punishment would be severe. 
Respect of each other’s land and rules was always and still is very important. It is the most important rule. You always have to get permission to travel on someone else’s country — at [3] to [7], [11] to [13], [17], [18], [20] and [21].
[163]	(Name removed) says in her affidavit:
Learning Malyangapa Law was a part of my growing-up life.
I have made it a part of [my] children’s and grandchildren’s growing-up life.
…
My dad and his family taught me about Malyangapa Law and Customs from a young age. They knew everything about the land. They had been taught about country and our law by their parents and family. It was always passed down.
I remember talking about our land and laws and customs with Granny Quayle, Granny Moysie and my dad. They were always teaching us about our relationship with our land and how we had to care for country and know our country. Granny Quayle taught me lots.
They taught me how to hunt and gather on the land. Where to find food, where to hunt and fish. What to eat and what not to eat. How to survive on the land when we had nothing. We often had nothing and had to survive through our knowledge of law and custom.
They also taught me stories of how the land was created and where the boundaries of Malyangapa land are.
…
Whenever I travel the land I do so thinking about our law and customs and I always stress this with my children.
My children are passing all this knowledge on to their children too — at [2], [3], [5] to [8], [12] and [13].
[164]	Gerald Quayle, in his affidavit, says that:
I have been taught traditional Malyangapa Law since I was young and I now teach Malyangapa Law to our people.
I was recognised as a learning man when I was quite young. 
The knowledge of our laws and customs was passed to me by my family and other senior Malyangapa people. These laws and customs had been passed onto them by their relatives.
I continue to acknowledge and live by these laws and customs.
I have passed these laws and customs on to my children and any other young Malyangapa People who have wanted to learn them.
…
I have identified with this land all of my life. I have always been connected with it through Malyangapa Law. 
I have a responsibility to my ancestors and my descendants to care for that country.
This land has been Malyangapa country since time began.
I have been told by my family since I began to learn our laws and customs the boundaries of Malyangapa land and that the Western boundary is along Lake Frome. 
The Malyangapa Ngaatyii stories I have been told which are our dreaming stories including the Rainbow Serpent story and the (names removed) story always described the land along the Eastern edge of Lake Frome all the way through to Mutawintji National Park in NSW as belonging to our people. 
I have passed these stories on to my children and any other young Malyangapa people who have wanted to learn, as they were passed on to me. 
…
It is part of Malyangapa Law that anyone who is not Malyangapa should ask permission to enter our land.
This has been the law since time began and continues today.
The Malyangapa People have had contact with the Aboriginal Groups that have bordered our land since before white man came and we have laws on who can come on our land and when.
In the past we would invite the Adnyamathanha People onto our land for ceremonies and trade. They would also invite us to their country. On occasions there would be marriages between our people.
Under our Law no one can enter our country without permission. The penalty of not asking permission and entering our country was death.
Permission would not be granted to everyone. A person granted permission would have to be a senior man who knew our language and law or the immediate family of someone who had married into the Malyangapa or both.
People who married in and their close relatives were taught some of our stories and law so that they could travel on our land when they were invited without disturbing important sites. Other important men of knowledge were also taught some of our stories in order that they could travel on our land for limited purposes with our permission. This might include trade or sharing in our ceremonies. Permission to travel on our country would only be granted to these people — at [2] to [6], [8] to [13], and [24] to [30].
[165]	I note that the information extracted in my reasons for s. 190B(5)(a) are also relevant to my consideration of the assertions made under subsection (b).
Consideration 
[166]	In my view, in order to support the assertion that the relevant laws and customs are ‘traditional’ in the Yorta Yorta sense, the factual basis must include sufficient details of:
•	the relevant pre-sovereignty society from which the claim group is descended and the persons who acknowledged and observed the laws and customs of the pre-sovereignty society;
•	the connection between the apical ancestors of the native title claim group and the pre-sovereignty society from which the laws and customs are derived; and
•	the connection between the laws and customs acknowledged and observed by the pre-sovereignty society and those of the current claim group.
[167]	Attachment F sets out the laws and customs of the pre-sovereignty society with some references to the historical record provided. The asserted facts provide that the Malyangapa are a distinct and identifiable society that share common features with other groups within the ‘Lakes’ region such as social organisation, kinship and ritual practice. The society is said to have system of social organisation and kinship where ‘the tribe was divided into two classes with children belonging to their mother’s class’ and that there was also a totemic system of formal groupings. Attachment F also outlines other laws and customs of the pre-sovereignty society.
[168]	I infer from the factual basis that the apical ancestors identified in Schedule A either were part of, with or without others, the pre-sovereignty society or more likely (given the time around which they were born) were descendant from persons who were part of the Malyangapa society. In my view, the factual basis material provides some information that supports the assertion of a link between the apical ancestors and the relevant pre-sovereignty society. I infer this from the asserted facts going to the geography of the wider country of the Malyangapa and that the ancestors are identified as being within this wider country (predominantly in New South Wales). From the asserted facts, I understand that the current claimants are descendants of these ancestors.
[169]	In addition, it is asserted that the current claim group’s laws and customs are derived from those of the relevant pre-sovereignty society. These laws and customs have been passed down the generations through traditional teaching and which current members continue to acknowledge and observe. The affidavit material indicates that current members of the claim group have been told Dreaming stories by their predecessors and have been taught traditional practices. 
[170]	For instance, Gerald Quayle says in his affidavit that he was taught the laws and customs by his family and was told Dreaming stories. He refers to visiting Malyangapa land with his family (including his grandmother and father) and says that there is a system of permission for other groups travelling on Malyangapa country. [Name removed] states that she was taught the laws and customs from a young age, such as how and where to hunt and gather resources on the land, what and what not to eat and how to survive on the land. Harold Hunt says that ‘stories have been passed down by our elders’ and he also refers to the system of permission to travel across Malyangapa country. 
[171]	In my view, within Attachment F there are some examples of more current observance and acknowledgement of the stated laws and customs of the pre-sovereignty society that invites a comparison to be made. For instance, the material refers to the practice of initiation and other ceremonies including burial rites such as the reference to ancestor Hannah Quayle in 1963 explaining the burial practices of the Malyangapa and how they were observed in relation to her uncle. There are also references to the practice of hunting, fishing and gathering of food resources by current members and their predecessors. There are also references to art sites, waterholes and men’s and women’s sites. I note however that these examples refer to the observance and acknowledgment of the asserted laws and customs by current members in the wider Malyangapa country, without any specific reference to locations within or proximate to the application area, or in areas within New South Wales, such as Mutawintji, that are not proximate to the application area. 
[172]	The affidavit material contain only limited references to current acknowledgement of laws and customs such that they are insufficient to invite a comparison or to support the assertion that the laws and customs now observed and acknowledged are those of the pre-sovereignty society. In the affidavits, the current claimants refer to laws and customs being passed down by family members and senior Malyangapa people but with such limited detail of the content and the acknowledgement and observance of these laws and customs that they are not sufficient to support the assertion that these are the laws and customs of the pre-sovereignty society. 
[173]	However, I infer from the examples and information provided in Attachment F that there may be a sufficient factual basis for the assertion that there exist traditional laws and customs acknowledged and observed by members of the claim group in the wider Malyangapa country, predominantly in New South Wales. However, I do not consider there to be specific details that refer to the observance and acknowledgement of traditional laws and customs by the claim group in relation to the application area or locations proximate to it. I also do not consider there to be sufficient examples or asserted facts within the factual basis of current or past activities or events in the application area that relate to rights and interests held by the claim group, which could assist in providing a sufficient factual basis to support the assertion at s. 190B(5)(b).
[174]	I understand that the assertion at s. 190B(5)(b) requires a factual basis which is sufficient to support the assertion that there are traditional laws acknowledged and traditional customs observed by the native title claim group that give rise to the claim to native title rights and interests. I consider that the factual basis is lacking in specific examples or facts of how the traditional laws and customs , described in Attachment F, have been acknowledged and observed by current claimants or their immediate predecessors in relation to the application area to support the assertion that those laws and customs give rise to the native title rights and interests claimed.
[175]	I refer to my conclusions in relation to s. 190B(5)(a), in relation to the factual basis not being sufficient to support an association by the claim group and its predecessors to the application area. In my view, the factual basis is not sufficient to support an assertion that there exists traditional laws and customs of the native title claim group in relation to the application area. 
[176]	In my view, the factual basis could be sufficient to support the assertion that the relevant laws and customs are ‘traditional’ in the Yorta Yorta sense. However, the factual basis is insufficient in demonstrating the connection between the traditional laws and customs acknowledged and observed and the area covered by the application. 
[177]	Given the above, I am not satisfied that the factual basis provided is sufficient to support the assertion at s. 190B(5)(b).
Reasons for s. 190B(5)(c)
[178]	This condition is concerned with whether the factual basis is sufficient to support the assertion that the native title claim group has continued to hold the native title rights and interests claimed. 
[179]	In Martin, French J held that:
[u]nder s. 190B(5)(c) the delegate had to be satisfied that there was a factual basis supporting the assertion that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. This is plainly a reference to the traditional laws and customs which answer the description set out in par (b) of s. 190B(5) — at [29].
[180]	Accordingly, satisfying the requirements of this condition relies on whether there is a sufficient factual basis to support the assertion at s. 190B(5)(b) that there exist traditional laws and customs which give rise to the claimed native title rights and interests. In my view, this assertion relates to the continued holding of native title through the continued observance of the traditional laws and customs of the group.
[181]	As mentioned above, the applicant has not provided sufficient factual basis material that goes to explaining the transmission and continuity of the native title rights and interests held in the application area in accordance with traditional laws and customs. Accordingly, s. 190B(5)(c) cannot be satisfied.  
[182]	I am not satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(c).
Conclusion
[183]	The application does not satisfy the condition of s. 190B(5) because the factual basis provided is not sufficient to support each of the particularised assertions in s. 190B(5).
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.
[184]	The requirements of this section are concerned with whether the native title rights and interests identified and claimed in this application can be prima facie established. Thus, ‘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]. Nonetheless, it does involve some ‘measure’ and ‘weighing’ of the factual basis and imposes ‘a more onerous test to be applied to the individual rights and interests claimed’ — at [126], [127] and [132]. 
[185]	In Gudjala 2007, Dowsett J noted that the requirements of s. 190B(6) are to be considered in light of the definition of ‘native title rights and interests’ at s. 223(1) — at [85]. His Honour further noted the observations of the High Court in Yorta Yorta that the claimed native title rights and interests:
must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, “traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty — Yorta Yorta at [86], cited in Gudjala 2007 at [86].
[186]	Accordingly, the condition at s. 190B(6) cannot be met in the absence of a sufficient factual basis to support the assertion that there exist traditional laws acknowledged and traditional customs observed by the claim group, which give rise to the claimed native title rights and interests. As noted above, my view is that the factual information supporting the assertions at s. 190B(5) is insufficient.
[187]	As I consider that the conditions in s. 190B(5) have not been met, I cannot therefore be satisfied, prima facie, that at least some of the claimed native title rights and interests can be established.
[188]	The application does not satisfy the condition of s. 190B(6).
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.
[189]	The High Court’s decision in Yorta Yorta and the Federal Court’s decision in Gudjala 2009 are of primary relevance in interpreting the requirements of s. 190B(7). In the latter case, Dowsett J observed that it ‘seems likely that [the traditional physical] connection must be in exercise of a right or interest in land or waters held pursuant to traditional laws and customs’ — at [84]. In interpreting connection in the ‘traditional’ sense as required by s. 223 of the Act, the members of the joint judgment in Yorta Yorta felt that: 
the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs … ”traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty — at [86].   
[190]	Whilst the test is not the same as would be applied in a determination of native title, ‘it does require the Registrar to be satisfied of a particular fact’, being that at least one member of the native title claim group has or had a traditional physical connection with part of the claim area — Doepel at [18]. 
[191]	It follows, in my view, that there must be sufficient factual material to satisfy the conditions of s. 190B(5) before the Registrar can be satisfied that the requirement of s. 190B(7) is met. 
[192]	Given that the application and other information does not contain a sufficient factual basis supporting the assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the Malyangapa people that give rise to the claimed native title rights and interests, I am unable to be satisfied that at least one member of the claim group currently has or previously had a traditional physical connection with any land or waters within the application area.
[193]	The application does not satisfy the condition 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 in relation to an area; and
(b)	either:
(i)	the act was an act attributable to the Commonwealth; or
(ii)	the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in s. 23E in relation to the act;
a claimant application must not be made that covers any of the area.
(3)	If:
(a)	a previous non-exclusive possession act (see s. 23F) was done in relation to an area; and
(b)	either:
(i)	the act was an act attributable to the Commonwealth, or
(ii)	the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in s. 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
(4)	However, subsection (2) or (3) does not apply to an application if:
(a)	the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and
(b)	the application states that section 47, 47A or 47B, as the case may be, applies to it.
[194]	In the reasons below, I look 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.
Section 61A(1)
[195]	The geospatial assessment states that no determinations of native title fall within the external boundaries of the application area. The results of my own search of the Tribunal’s mapping database confirm that there is no overlap with any native title determination at the time of making this decision. It follows that the application is not made in relation to an area for which there is an approved determination of native title.
[196]	In my view, the application does not offend the provisions of s. 61A(1).
Section 61A(2)
[197]	Schedule B refers to areas not covered by the application, including ‘[a]ll areas in relation to which a previous exclusive possession act has been done, other than an act that is an ‘excepted act’ as defined in the Native Title (South Australia) Act 1994 (SA)’.
[198]	In my view, the application does not offend the provisions of s. 61A(2).
Section 61A(3)
[199]	I am satisfied that the application does not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area that is, or has been, subject of a previous non-exclusive possession act, except to the extent that ss. 47, 47A or 47B of the Act may apply — see Schedules B, E and L.
[200]	In my view, the application does not offend the provisions of s. 61A(3).
Conclusion
[201]	In my view the application does not offend any of the provisions of ss. 61A(1), 61A(2) and 61A(3) and therefore the application satisfies the condition of s. 190B(8).

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.
[202]	I consider each of the subconditions of s. 190B(9) in my reasons below.
Section 190B(9)(a)
[203]	Schedule Q of the application provides that the native title claim group does not claim ownership of minerals, petroleum or gas wholly owned by the Crown.
[204]	The application satisfies the subcondition of s. 190B(9)(a).
Section 190B(9)(b)
[205]	Schedule P of the application provides that the native title claim group does not claim exclusive possession over all or part of the waters in an offshore place within the application area.
[206]	The application satisfies the subcondition of s. 190B(9)(b).
Section 190B(9)(c)
[207]	There is nothing, in my view, within the application or accompanying documents which indicate that the native title rights and interests claimed have otherwise been extinguished.
[208]	The application satisfies the subcondition of s. 190B(9)(c).
Conclusion
[209]	The application satisfies the condition of s. 190B(9), because it meets all of the three subconditions, as set out in the reasons above.

[End of reasons]

Attachment A
Summary of registration test result
Application name	Malyangapa Peoples	
NNTT file no.	SC2013/004	
Federal Court of Australia file no.	SAD251/2013	
Date of registration test decision	17 January 2014	

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)	n/a	
	s. 190C(4)(b)	met	

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

[End of document]