Registration test decision

Application name	Rita Augustine & Ors v State of Western Australia (Jabirr Jabirr)	
Name of applicant	Rita Augustine, Cecilia Djiagween, Elizabeth Dixon, Ignatius Paddy, Anthony Watson	
NNTT file no.	WC2013/007	
Federal Court of Australia file no.	WAD357/2013	
Date application made	23 September 2013	
Date application last amended	13 October 2015	
Date of Reasons	23 November 2017	

I have considered this claim for registration against each of the conditions contained in ss 190B and 190C of the Native Title Act 1993 (Cth).
For the reasons attached, I am satisfied that each of the conditions contained in ss 190B and 190C are met. I accept this claim for registration pursuant to s 190A of the Native Title Act 1993 (Cth).
	Date of decision:	17 December 2015	

___________________________________

Lisa Jowett
Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cth) under an instrument of delegation dated 20 November 2015 and made pursuant to s 99 of the Act. 

Reasons for decision
Introduction
[1]	The Registrar of the Federal Court of Australia (the Court) gave a copy of the Jabirr Jabirr native title determination application (WAD357/2013) to the Native Title Registrar (the Registrar) on 13 October 2015 pursuant to s 64(4) of the Act. This has triggered the Registrar’s duty to consider the claim made in the application for registration in accordance with s 190A: see subsection 190A(1). 
[2]	Sections 190A(1A), (6), (6A) and (6B) set out the decisions available to the Registrar under s 190A. Subsection 190A(1A) provides for exemption from the registration test for certain amended applications and s 190A(6A) provides that the Registrar must accept a claim (in an amended application) when it meets certain conditions. Section 190A(6) provides that the Registrar must accept the claim for registration if it satisfies all of the conditions of s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters). Section 190A(6B) provides that the Registrar must not accept the claim for registration if it does not satisfy all of the conditions of ss 190B and 190C. 
[3]	I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply to the claim made in this amended application. The granting of leave by the Court to amend the application was not made pursuant to s 87A, and thus the circumstance described in s 190A(1A) does not arise. The amendments to the application include a change to Schedule A (the description of the native title claim group) that is not of a type contemplated in s 190A(6A) and does not therefore meet the requirements of that condition.
[4]	As such, I have considered the claim made in the amended application in accordance with s 190A. I have reached the view that the claim satisfies all of the conditions in ss 190B and 190C and, pursuant to s 190A(6), the claim in the amended application must be accepted for registration. This document sets out my reasons, as the delegate of the Registrar, for my decision to accept the claim for registration pursuant to s 190A of the Act.
 Application overview and background
[5]	The Jabirr Jabirr native title determination application was first made on 23 September 2013. The claim was entered onto the Register of Native Title Claims on 14 November 2013 when it was accepted for registration. The applicant has filed this amended application in accordance with leave granted by the Court on 21 September 2015.
[6]	The area covered by the application is located north of Broome, extending from Willie Creek in the south to Cape Bertholet in the north, out to sea to the west and east to the pastoral boundaries of Roebuck Plains and Country Downs. The Jabirr Jabirr claim abuts the Djabera-Djabera claim to the north, the Rubibi determination to the south and overlaps the Goolarabooloo People claim.
Information considered when making the decision
[7]	Section 190A(3) sets out the information to which the Registrar must have regard in considering a claim under s 190A and provides that the Registrar ‘may have regard to such other information as he or she considers appropriate’.
Subsection 190A(3)(a): Application and other documents provided by the applicant
[8]	As required by s 190A(3)(a), I have had regard to information in and accompanying the amended application. I have also considered documents provided directly to the Registrar on 16 November 2015 comprising of:
•	Submissions addressing selected requirements of ss 190B and 190C of the NTA
•	Affidavit of [Name removed], affirmed 1 September 2015, which includes the following:
o	Annexure SB1—copy of affidavit affirmed by [Name removed] on 31 July 2013
o	Annexure SB2—copy of affidavit affirmed by [Name removed] on 31 July 2013
o	Annexure SB3—notice of meeting published in Broome Advertiser on 30 October 2014
o	Annexure SB4—notice of meeting published in Kimberley Echo on 30 October 2014
o	Annexure SB5—Notice of Jabirr Jabirr Authorisation Meeting (of 21 November 2014) posted to members of the native title claim group 
o	Annexure SB6—family tree form for completion by persons not named on the registration attendance list
o	Annexure SB7—Jabirr Jabirr Authorisation Meeting Agenda including 2 map attachments
•	Affidavit of [Name removed] affirmed 19 November 2015
•	Affidavit of [Name removed] affirmed 30 April 2010
•	Affidavit of [Name removed] affirmed 27 October 1999
•	Affidavit of [Name removed] affirmed 30 April 2010
•	Affidavit of [Name removed] affirmed 16 September 2010
Subsection 190A(3)(b): Searches conducted by the Registrar of State/Commonwealth interest registers
[9]	I note that there is no information before me of the kind identified in s 190A(3)(b). 
Subsection 190A(3)(c): Information supplied by Commonwealth/State
[10]	The State of Western Australia (the state government) has not provided any submissions in relation to the additional material provided by the applicant or the application of the registration conditions to this amended application.
Section 190A(3): other information to which Registrar considers it appropriate to have regard
[11]	I consider it appropriate to have regard to a previous delegate’s statement of reasons accepting for registration the Jabirr Jabirr application when it was first made on 14 June 2013. The reasons for my having regard to the reasons are set out in my consideration of the authorisation condition under s 190B(4)(b).
[12]	I have also considered information contained in an overlap analysis and geospatial assessment by the Tribunal’s Geospatial Services dated 16 October 2015 (the geospatial report).
Procedural fairness steps
[13]	As noted above, I have considered the additional material provided by the applicant. On 4 December 2015, I wrote to the state government advising that I would be relying on this information in my application of the registration test and should they wish to make any submissions, they should do so by 15 December 2015. I received no submissions from the state government in relation to the additional material and as such the procedural fairness processes were concluded. 
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
Description of the area covered by the application
[14]	Attachment S identifies that the area covered by the application, as per the information provided at Schedule B, has been amended.
[15]	Schedule B lists general exclusions to describe the area not covered by the application and refers to Attachment B for the description of the area covered by the application. This is a metes and bounds description, making reference to cadastral boundaries and geographic coordinate points in decimal degrees referenced to the Geocentric Datum of Australia (GDA94). The written description was prepared by the Tribunal’s Geospatial Services on the 4 February 2010.
[16]	Schedule B has been amended ‘by substituting a new formula description identifying those areas within the external boundaries of the application which are not covered by the application.’ This change comprises an additional sub paragraph (f) under Paragraph 2:
f. Specifically, any area where there has been:
i. an unqualified grant of an estate in fee simple;
ii. a public work as defined in section 253 of the Native Title Act; or
iii. an existing dedicated public road
[17]	Schedule C refers to Attachment C which is a colour copy of a map titled “Native Title Determination Application – Jabirr Jabirr” produced by the Tribunal’s Geospatial Services dated 4 February 2010. The map depicts the application area with a bold blue outline, adjacent native title determination and application boundaries labelled, cadastral land parcels roads and localities labelled, scalebar, northpoint, coordinate grid, legend and location diagram and notes relating to the source, currency and datum of data used to prepare the map.
[18]	Schedule S notes that the amendments are not intended to make any change to the areas which are covered by the application.
Consideration
[19]	The information in relation to the external boundaries of the area covered by the application allows me to identify the location and extent of those boundaries and to be reasonably certain of the area on the earth’s surface. For the purposes of meeting the requirements of this section the general exclusion statements at Schedule B are, in my view, sufficient to offer an objective mechanism by which to identify areas that would fall within the categories described, and thereby be excluded from the application.
[20]	The geospatial report’s assessment is that the area covered by the application has not been amended and reduced and does not include any areas which were not previously claimed in the original application. The geospatial report makes the assessment that the description and the map are consistent with each other such that the area covered by the application is readily identifiable. I agree with that assessment.
[21]	I am therefore satisfied that the external boundary of the area covered by the application is identifiable and, along with the general exclusions that serve to identify the internal boundaries, it can be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
[22]	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.
[23]	Schedule A of the application does not name the persons in the native title claim group but contains a description of that group, being the basis for its composition. It is therefore necessary to consider whether the application satisfies the requirements of s 190B(3)(b). I note the comments of Mansfield J in Northern Territory v Doepel (2003) 133 FCR 112; (2003) 203 ALR 385; [2003] FCA 1384 (Doepel) that the focus of s 190B(3)(b) is:
(a)	whether the application enables the reliable identification of persons in the native title claim group—at [51]; and is
(b)	not on ‘the correctness of the description . . . but upon its adequacy so that the members [sic] of any particular person in the identified native title claim group can be ascertained’—at [37].
[24]	Carr J in State of Western Australia v Native Title Registrar (1999) 95 FCR 93 (Western Australia v Native Title Registrar) was of the view that ‘it may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently’—at [67].
[25]	The description of the native title claim group at Schedule A is as follows:
1. The native title claim group consists of people known as the Jabirr Jabirr people, being those Aboriginal people whose traditional land and waters are situated generally in the district north of Broome and south of Beagle Bay in the state of Western Australia.
2. The individuals who comprise the Jabirr Jabirr people's native title claim group are the biological descendants of the following persons and one couple:
1. Gardarlagan
2. Frank Dinghi, aka Jimmy Bulingi
3. Appolonia, mother of Gerard, Theresa, Josephine and Ester
4. Nabi
5. Dorothy, sister of Senanus and mother of Elsie, Bill, Bardu and Rosie
6. Jacky and Deborah
7. Mary Nelagumia
8. Appolonia, sister of Mary Nelagumia
9. Wallai William
10. Agnes Imbarr
11. Fred/Friday Walmadang
12. Murjal, sister of Senanus
13. Sophie, mother of Kay McKenzie and others
14. Frank Walmandu, brother of Senanus
15. Flora, sister of Matilda
16. Louisa, aka Djauradjaura, sister of Matilda
17. Madeline, sister of Matilda
18. Matilda, mother of Josephine Torres and others
19. Bornal
20. Liddy
21. Dorothy Kelly
22. Walamandjjn
23. Alice Darada
[26]	In my view, the description of the native title claim group is capable of being readily understood and is sufficiently clear such that it can be ascertained whether any particular person is in that group. I understand that membership of the native title claim group is regulated by biological descent from the persons named in the description. It may be that some factual inquiry is required to ascertain how members of the claim group are descended from the named ancestors, but that would not mean that the group had not been sufficiently described.
[27]	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.
[28]	Schedule E of the application contains the description of native title rights and interests claimed in relation to the area covered by the application, as required by s 62(2)(d):
Native title where traditional rights are wholly recognisable
1.	Paragraph [2] applies to every part of the claim area:
(a)	where there has been no extinguishment to any extent of native title or where any extinguishment is required to be disregarded; and
(b)	which is not subject to the public right to navigate or the public right to fish.

2.	Where this paragraph [2] applies the right possessed under traditional law and customs is properly interpreted as, and the native title right recognised by the common law of Australia is, the right of possession, occupation, use and enjoyment of land and waters as against the whole world.

Native title where traditional rights are partially recognisable
3.	Paragraph [4] applies to every part of the claim area to which paragraph [2] does not apply.

4.	Where this paragraph [4] applies, the rights and interests possessed under traditional law and customs are properly interpreted as the rights of possession, occupation, use and enjoyment of land and waters as against the whole world, but the native title rights and interests recognised by the common law of Australia are the rights to do all such things as may be done under the right referred to in paragraph [2] save for controlling access to or the use of land or waters by others; being the (non-exclusive) rights to:
(a)	have access to, remain on and use the land and waters;
(b)	access and take the resources of the land and waters; and
(c)	protect places, areas and things of traditional significance on the land and waters.
[29]	The remainder of the description sets out qualifications to which the claimed rights and interests are subject, including rights created under State or Commonwealth laws.
[30]	When read together with the exclusion statements in the description of the area covered by the application (at Schedule B), I am of the view that the native title rights and interests claimed can be ‘properly understood’. I understand that the application claims possession, occupation, use and enjoyment to the exclusion of all others only in those areas where it can be recognised, and claims the three listed non-exclusive rights where the exclusive right cannot be recognised. I am therefore satisfied that the description contained in the application is sufficient to allow the native title rights and interests to be readily identified.
[31]	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
[32]	For the application to meet this merit condition, I must be satisfied that a sufficient factual basis is provided to support the assertion that the claimed native title rights and interests exist and to support the particularised assertions in paragraphs (a) to (c) of s 190B(5). In Doepel, Mansfield J stated that:
Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the `factual basis on which it is asserted’ that the claimed native title rights and interests exist `is sufficient to support the assertion’. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts—at [17].
[33]	The decisions of Dowsett J in Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007) and Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009) also give specific content to each of the elements of the test at ss 190B(5)(a) to (c). The Full Court in Gudjala FC, did not criticise generally the approach that Dowsett J took in relation to these elements in Gudjala 2007, including his assessment of what was required within the factual basis to support each of the assertions at s 190B(5). His approach in Gudjala 2009 was consistent with the approach he took in Gudjala 2007.
[34]	Arising from these decisions are clear principles which guide the Registrar when assessing the sufficiency of a claim’s factual basis. In summary, they are:
•	the applicant is not required ‘to provide anything more than a general description of the factual basis’—Gudjala FC at [92];
•	the nature of the material provided need not be of the type that would prove the asserted facts—Gudjala FC at [92]; and
•	the Registrar is not to consider or deliberate upon the accuracy of the information/facts asserted—Doepel at [47].
The information in the application
[35]	Attachments F (a detailed general description), G (activities undertaken) and M (traditional physical connection) and the additional material provided by the applicant contain the factual basis material on which the claim in the application relies. The four affidavits of members of the native title claim group relate detailed information as to their connection to country, the group’s past and current occupation, activities undertaken in the claim area and people’s rights and responsibilities under their traditional laws and customs. The submissions and affidavit of [Name removed] provide an anthropological summary of the research and evidence conducted in relation to the application area and the Jabirr Jabirr native title claim group and its ancestors – addressing current and previous association with the claim area, the traditional laws and customs of the native title claim group and their continuing acknowledgement and observance by members of the group.
Reasons for s 190B(5)(a)
[36]	This subsection requires that I be satisfied that the factual basis is sufficient to support the assertion that the native title claim group has, and its predecessors had, an association with the area of the application. It is not necessary for the factual basis to support an assertion that all members of the native title claim group have an association with the area all of the time. However, it is necessary that the material before the Registrar shows cumulatively an association between the whole group and the whole area of the claim—Gudjala (2007) at [51] and [52]. Further, Dowsett J also observed:
Similarly, 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].
[37]	Attachment F provides a general description of the native title claim group’s current and previous association with the area covered by this application. It is asserted that the group and its predecessors’ association with and connection to the claim area is through its acknowledgement and observance of its traditional laws and customs. A continuing association has been maintained through:
•	continuous physical presence and occupation, use and enjoyment as permitted or required by the laws and customs;
•	the possession and allocation  of rights,  responsibilities  and  authority;
•	beliefs in and access to knowledge of bugarrigarr (ancestral beings);
•	care and protection of places, areas and things of mytho-ritual significance;
•	involvement in mytho-ritual  practices; and
•	the association between people, territory and language—at [65].
[38]	Members of the claim group and their predecessors were born in and around the region of the claim area. They have lived for all or much of their lives within or near the claim area, and ‘many ancestors and kin of members of the claim group are buried in the claim region’—at [66] and [67].
Association of the predecessors of the native title claim group with the application area
[39]	Attachment F of the application states that ancestors of the members of the claim group inhabited the claim region at the assertion of British sovereignty in 1829 and that sustained European activity in the region of the claim area occurred from the early 1880s—at [1] and [4]. 
[40]	[Name removed] provides a brief outline in her affidavit of Jabirr Jabirr people’s continuing association with their country since European settlement:
•	Regular contact between European settlers and Jabirr Jabirr people did not commence until approximately the 1880s.
•	Through to the 1940s people were able to freely acknowledge and observe their traditional laws and customs.
•	Jabirr Jabirr people were able to remain permanently within their country ... at the Carnot Bay Spring station, Quondong Station and Barred Creek.
•	Throughout the 1940s, 1950s and 1960s people continued to live in  and  access  the claim area.
•	By the late 1980s, Jabirr Jabirr people have had the opportunity to live within Jabirr Jabirr country, by setting up small outstations for their families—at [8].
[41]	[Name removed]’s submissions refer to the findings of anthropologist [Name removed] (filed in the Court for the applicant in April 2015). Association of the predecessors of the present native title claim group with the coastal part of the claim area is documented:
•	Sites/ places located along the coast point to protracted economic and spiritual use of the land - artefact scatters, middens, burials and/or ceremonial sites, sites of mythological and historical significance, fish traps and gender-restricted sites.
•	Anthropologist A.P. Elkin wrote that most natives lived along the coast (of the Dampier Peninsula) around the various waterways and inlets, and estimated the population at the time of first white settlement at about 1500 people.
•	Captain Phillip King’s description of Carnot Bay (1827, p. 94) in which he noted ‘the smokes of fires have been noticed at intervals of every four or five miles along the shore, from which it may be inferred that this part of the coast is very populous’.
•	Stokes (1846, pp. 88-89) described the Aborigines of the coast, and smoke from native fires in the vicinity of the sea between Roebuck Bay and Beagle Bay—pp. 8 – 10.
[42]	Association of the predecessors of the present native title claim group with the inland part of the claim area is also documented:
•	Dreaming stories relating to inland areas associated with the headwaters of creeks running west through Jabirr Jabirr country point to inner regions being used particularly seasonally and also for the purpose of trade/ finding a wife.
•	Tindale (1974, p. 145) mentioned the tendency for coastal dwelling people to use the interior of the peninsula to forage and trade, quoting an informant saying that the people who live on the coast ‘only go inside to cross over from one side to the other’.
•	Reference to elder [Name removed] relating a Dreaming story that points to seasonal use of the inland area from Spring Creek, in a gully forming the headwaters of creeks flowing out along the coast at Coloumb Point and Carnot Bay for harvesting bush foods—at pp. 10.
[43]	[Name removed] explains in his affidavit that the source of his knowledge of country lies in that of his predecessors’:
... I was told that that country goes to the sea as far as the Lacepedc Islands. I came to understand that these places were my country because of my relationship to my mother, and her relationship to her mother, and back to her mother, Senanus  ... I also learned from my grandfather [Name removed] where Jabirr Jabirr country was. It goes from Willie Creek north to Nadalagan, near Camp Inlet, and it goes from south of Beagle Bay to Country Downs station—at [11] to [12].
[44]	[Name removed] was born in Beagle Bay in 1936 and speaks in her affidavit of being taught by her parents and relatives the extent of Jabirr Jabirr country. Her access to her country is guided by traditional laws and customs taught to her by her aunts and uncles. She speaks of her parents building fish traps at Waterbank Station, of the stories that speak of the places where fresh water can be found, of the Dreaming places in the salt water—affidavit of 27 October 1999.
[45]	[Name removed], born in 1934 on Waterbank Station, speaks in her affidavit of ‘old Jabirr Jabirr people’ living and moving along the coast at places like Quondong and Barred Creek, Coulomb Point, Carnot Bay and Sandy Point. She remembers walking with the old people, hunting and getting food, being told the stories for country and for people from her grandmother—at [4] to [8].
Current association of the native title claim group with the application area
[46]	[Name removed] states that ‘the present Jabirr Jabirr claimants live in, use and occupy their country, in accordance with the traditional laws and customs’. They continue to acknowledge and observe law and custom in relation to such matters as protecting country, access permissions and protocols, hunting and fishing and the distribution of the resources of their country—at [10].
[47]	The submissions discuss claimants’ access to the inland parts of the claim area for hunting, and for collecting bush foods and bush medicines:
•	hunting for goanna, kangaroo and turkey, using traditional trapping methods;
•	collecting resources such as honey, tamarind trees, gubinge and bush fruit, ‘onion grass, bush potatoes and sandalwood trees (they have fruit, and their branches and leaves can be used as well), fibre from wattle trees (which can be used to make string), wattle seed (which can be used in damper) and a crawling vine which bears a white fruit’—at p. 12-13.
[48]	 The coastal parts of the claim area are used intensively by claimants for hunting, fishing and camping. Through their continuing association with the claim area, the members of the native title claim group use their knowledge of the ‘changes in seasons which rests on the relationships between the living things within a particular area’—at p. 6.
[49]	[Name removed] speaks of her knowledge of the boundaries of Jabirr Jabirr country – to the north of Willie Creek; the sea is Jabirr Jabirr country too; there are Dreaming places in the salt water—at [3]-[8]. Her parents used the resources of Jabirr Jabirr country to build fish traps along the coast on Waterbuk Station and she and her family would go camping and visiting Quandong (Murrijul) and Coulomb Point (Minnarryin) to fish and collect bush tucker, to teach children and grandchildren how to look after country—at [6]-[9].
[50]	[Name removed] was born in the bush at Waterbank Station—at [4]. She speaks of hunting and getting food; that ‘lots of old Jabirr Jabirr people lived and moved up the coast at places like Quondong  (Mwjal) and Barred Creek, also travelling along the coast up and down to Minaniny (Coulomb Point), Camot Bay and Sandy Point and Jabirr Jabirr people lived all along the coast to Winawal—at [5]. She knows the Jabirr Jabirr names for places in the country, Ngudagun for Carnot Bay, Ngarralugan for Baldwin Creek and Winawal for Sandy Point, Walmadang, Gardalagan and Murja—at [11]. She speaks of the outstation on Carnot Bay where she now camps and used to live—at [30].
[51]	[Name removed] goes hunting for kangaroo and bush turkeys on Jabirr Jabirr country: ‘I also hunt for goanna. Around Moard there are some good places for kangaroo and around the spring areas and around the sand dunes is good for goanna’—at [14].
Consideration
[52]	In Gudjala 2007 Justice Dowsett considered that in assessing the factual basis material, it was necessary for the Registrar to address ‘the relationship which all the members claim to have in common in connection with the relevant land’—at [40]. Further to this, the facts alleged must ‘support the claim that the identified claim group (and not some other group) held the identified rights and interests (and not some other rights and interests)’—at [39]. The factual basis material should therefore provide information that pertains to the identity of the native title claim group, the predecessors of the group and the nature of their association with the area of the application. [Name removed] attests to this matter in her affidavit:
When the present-day claimants speak of their Jabirr Jabirr parents and grandparents, they do so by linking them to named areas within Jabirr Jabirr country. In other words, the claimants differentiate their forebears' connection to Jabirr Jabirr country, while at the same time identifying them commonly as Jabirr Jabirr—at [11].
[53]	I consider that the material in the application is sufficient to demonstrate the association of members of the claim group and its predecessors with the area covered by the application. The extensive personal detail in the claimant affidavits provides particular evidence to illustrate the claim group’s abiding connection to the land and waters of the application area through birth, descent, long term association and/or ancestral connection to that area. In this way it is clear that this current association has its origins in the preceding generations’ association with the area.
[54]	For these reasons I am satisfied the factual basis for the claim made in the application supports the assertion that the native title claim group has, and its predecessors had, an association with the area.
Reasons for s 190B(5)(b)
[55]	This subsection requires that I be satisfied that the material before me provides a sufficient factual basis for the assertion that there exist traditional laws acknowledged and customs observed by the native title claim group and that these give rise to the native title rights and interests it claims.
[56]	Justice Dowsett considered the requirements of s 190B(5) for a second time in Gudjala 2009 when he addressed the adequacy of the factual basis underlying an applicant’s claim. Relevant to assessing the application’s assertions in relation to s 190B(5)(b), in Dowsett J’s view, there is a requirement for factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters—at [29]. Therefore, the factual basis for the claim is required to address whether or not the relevant traditional laws and customs that give rise to the claim to native title rights and interests have their origin in a pre-sovereignty, normative system with a substantially continuous existence and vitality since sovereignty. This is the proposition that emerged from the High Court’s decision in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta Yorta), and was relied on by Dowsett J in his Gudjala 2007 decision—at [26].
[57]	In Gudjala 2007, Dowsett J considered that the factual basis materials for this assertion must demonstrate:
•	that the laws and customs currently observed by the claim group have their source in a pre–sovereignty society and have been observed since that time by a continuing society—at [63];
•	the identification of a society of people living according to a system of identifiable laws and customs, having a normative content, which existed at the time of sovereignty—at [65] and see also at [66]; and
•	the link between the claim group described in the application and the area covered by the application, ‘identifying some link between the apical ancestors and any society existing at sovereignty’—at [66].
[58]	In the context of the registration test (and explicitly the task at s 190B(5)(b)), there must be factual material capable of supporting the assertion that there are ‘traditional’ laws and customs acknowledged and observed by the native title claim group, and that they give rise to the claimed native title rights and interests—Gudjala (2007) at [62] and [63].
[59]	In my view, there is sufficient factual account in the application and additional material to support the proposition, that under the traditional laws and customs of the claim group, there exist rights and interests that relate to the land and waters of the area covered by the application. 
The relevant society
[60]	It is asserted at Attachment F that the ancestors of the members of the native title claim group inhabited the claim region and shared a system of laws and customs’—at [2]. This system of shared laws and customs is asserted to extend to people associated with the identifier labels "Nyul Nyul" and "Nimanbur”—at [3]. In respect of this, the submissions (referencing the findings of [Name removed]) states that the evidence:
...points to the Jabirr Jabirr people being part of a wider group of persons united in and by the acknowledgement of normative rules believed to have emanated from the boogarrigarr (Dreaming). These laws and customs include descent of rights to country based on both spiritual connection (through totems/rayi) as well as biological/ ancestral connection (through patrilineal descent/ skin sections). Additionally, there is recognition in the historic record of individual connection with specific places and locations on country due to both birth and rayi (ref. Elkin 1933, para 98 above)...
Based on consideration of the information contained in this section, I am of the opinion that the Jabirr Jabirr people were part of a broader society of peoples united in and by the acknowledgement of normative rules. I also infer that the laws and customs described in these documents dating from the late 1800s/early 1900s would most likely have been those in existence at the time of sovereignty (1829), as colonization of the Kimberley region did not occur on a large scale until the latter half of the 1800s (ref. Elkin’s comments above, para 103). The individual tribes comprising this broader society of people referred to in these historic documents would appear to include variably the following peoples: Ngumbal, Djugan, Jabirr Jabirr, Nyul Nyul, Nimanburr, Bardi, Yawuru, Nyigina, Waruwa, and Karajarri—at pp. 13 – 15.
[61]	Attachment F asserts that the ancestors listed at Schedule A:
•	are descended  from the Indigenous people occupying the claim region at the time British sovereignty was asserted;
•	are known  to  be  from  the  claim  region  from  the  time  of sustained European activity in the region from the early 1880s;
•	were members of a society which comprised or included people who identified themselves as "Jabirr Jabirr" and/or  "Ngumbarl";  and
•	were, generally (but not always or only), persons from buru or family group local areas associated with Jabirr Jabirr and/or Ngumbarl—at [4]
[62]	Attachment F also sets out the basis for possessing rights and relation to land and waters: 
1.	at the local level - in a local area of land and waters sometimes referred to as buru
­	....the local group members are entitled to regard the local area as their own and, subject to and in accordance with the other traditional laws and custom, may control access, have full use of and be entitled without external constraint to take the resources present on the area
­	in other local areas of the claim area - through other descent relationships with a person who is or was a member of another local group
­	in the local area of a formerly neighbouring or nearby local group - through succession, when a local group becomes extinct or so reduced in numbers that it can no longer function independently.
2.	at the claim group level - in land and waters associated with (or shared by) the claim group
­	through membership of such claim group by descent from a person acknowledged to be a member of the claim group (including by child adoption)
­	where there is no local group- through membership of the claim group
3.	at the level of the individual
­	through  the holding by that person of, and recognition of that person by others at the  regional  level  as  having,  appropriate  ritual  knowledge  of  and responsibility   for  the   area. Such rights are personal and non-transmissible—at [7].
Traditional laws and customs
[63]	Attachment F includes detailed information in relation to the native title claim group’s acknowledgement and observance of traditional laws and customs that relate to control and regulation of access to the area covered by the application, regulation of the right to speak for country, rights and responsibilities as they relate to protecting and looking after country, knowledge of the cosmological tenets of Jabirr Jabirr law and custom, marriage and kinship, language, adoption, law and culture ceremonies and decision-making—at [16] to [50].
[64]	There is also a significant amount of information set out about the normative content of Jabirr Jabirr traditional law and custom and the continuation and adaptation of the group’s acknowledgement and observance of those traditional laws and customs —at [51] to [61]. The rights and interests that are said to be possessed under the Jabirr Jabirr traditional laws and customs are set out, along with the basis on which members of the claim group possess those rights and interests, and in turn the connection to the claim area of members of the claim group in accordance with their laws and customs—at [62] to [67]
[65]	[Name removed] in her affidavit provides:
The cultural knowledge that has been handed down includes not only a body of rules which prescribe what may be done, what must not be done and the manner in which things should be done within Jabirr Jabirr country, but also the practical knowledge of which resources are located within Jabirr Jabirr country and how they can be utilised, including where to find fresh water in Jabirr Jabirr country—[9]
[66]	[Name removed] in her affidavit provides:
Jabirr Jabirr country is to the north of Willie Creek. Yawuru and Jabirr Jabirr people have always mixed with each other, married into each other’s families and held ceremony together, but they are different peoples. The law from the Dreaming tells us they are different. The Dreaming is called Bugarrlgarra. During this time, a snake travelled from Nurrugun (Carnot Bay) in Jabirr Jabirr country down to Nyambal country and across into Yawuru country. When this snake crossed Willie Creek he changed his name and his skin. When he was travelling in Jabirr Jabirr country his skin was Barljarri, but when he crossed into Yawuru country his skin became Garimba. Nyambal and Jabirr Jabirr are the same people. The Nyambal language is really light Jabirr Jabirr. We are all one people, one tribe, but with a little bit different tongue—at [3].
[67]	[Name removed] in her affidavit provides:
Those little rai are still there, they belong to that country.  Rai are little spirits and they live all through the country.  There are lots in Quondong and they are still there now. Some are looking for their mummy and daddy.  They might see someone and decide that will be my mother and father and when a woman has the baby the old people will say that rai come from that country—at [20].
[68]	[Name removed] has been ‘through the law’ and knows Bugarigan-a stories for that Law:
My grandmother's brother Joe, who I call mimi, taught me to call out names of old people for my country. It's for safety. If you do that when you are on country, those old people will take care of you and watch over the kids. They will also give you good luck for fishing. That country can get wild at you if you don't know what to do, like calling out the names of the old people, bad things can happen to you—at [13].
Consideration
[69]	I am of the view that the factual basis material supports the proposition that there was a society comprised of the predecessors of the native title claim group acknowledging and observing traditional laws and customs in the area of the application on the assertion of British sovereignty in Australia, and at the time of first European contact. The application asserts that this is the society that has continued, largely uninterrupted, since that time. That is, the ‘Jabirr Jabirr’ / ‘Ngumbarl’ society existed at sovereignty in respect of the area covered by the application, defined by its recognition of laws and customs, and from which the claim group’s current traditional laws and customs are derived—Gudjala 2009 at [66].
[70]	Information in the application and additional material provides details that pertain to the group’s traditional law and custom, in respect of the area of the application, pertaining to family and ancestors, rules of affiliation to country, special places and stories, hunting and gathering and the passing on of traditional and cultural knowledge. The statements made in the affidavits demonstrate how the claim group has handed down its laws and customs from generation to generation, in the sense defined in Yorta Yorta—showing an inter-generational transmission of traditional law and custom from the predecessors of the claim group.
[71]	The personal detail provided in the affidavits supports and illustrates the information set out in the application and anthropological findings of [Name removed] and [Name removed]. I am satisfied that the factual basis for the claim supports that there exist traditional laws acknowledged and customs observed by the native title claim group and that these give rise to the native title rights and interests it claims.
Reasons for s 190B(5)(c)
[72]	This subsection requires that I be satisfied that there is sufficient factual basis to support the assertion that the native title claim group continues to hold native title in accordance with their traditional laws and customs. In order for a delegate to be satisfied that there is a factual basis for s 190B(5)(c) there must be some material which addresses those matters outlined by Dowsett J in Gudjala 2007 at [63], [65] and [66] (as summarised above).
[73]	Continued acknowledgement and observance of traditional law and custom has been possible because the members of the claim group and their predecessors have continued to live, occupy and travel through the area covered by the application despite its remoteness. Even when physically absent from the area they continue to practice their traditional laws and customs and adhere to the processes that regulate their association with and responsibilities to their country (including the area of this application). 
[74]	The submissions provide many references to the research of [Name removed] regarding the continuing adherence to Jabbir Jabbir traditional law and custom by the native title claim group on matters such as:
•	gendered places and stories which still exist in the landscape;
•	mechanisms for contemporary membership of Jabirr Jabirr society;
•	the strong emphasis placed on the spirituality of country;
•	the recognition that ancestors continue to be present in the landscape; and
•	normative rules that ground behaviour and relationships—at [20]-[23].
[75]	Language and traditional place names continue to retain significance as they relate to ancestral Dreaming sites and/or tracks, serve to build and strengthen relationships between people and continue to connect people to their predecessors and ancestors and special places on country. Contemporary behaviours and rituals exist ‘that point to a continuing acknowledgement of local descent groups and broader tribal areas’, whereby certain people speak for certain areas, there exists access protocols and respect and reciprocity regarding ownership of country—at [25]. [Name removed]’s conclusions about the continuing Jabirr Jabirr society:
“In considering both the written and oral histories relating to the region, I deduce the continuity of a society that existed at the time of sovereignty through to the present time. The claimants interviewed described connection to country through cognatic descent and most practice a system of access to country involving permission in recognition of local family groups, in addition to permissions required for access to neighbouring (tribal) groups … The kinship system not only forms the basis of connection to country, but also regulates the associated rights and interests, and the way in which people interact in everyday life as well as during ceremonies. The responsibility and obligation to Care for Country and manage its resources has ensured practices and rituals based in traditional Law and Custom continue today...”—at p. 26.
[76]	[Name removed] attests that:
The senior generation of the present-day Jabirr Jabirr claim group, born in the mid 1930s, were taught the Jabirr Jabirr laws and customs by their old people, who had themselves been taught those laws and customs prior to the 1920s. These old people and the current senior Jabirr Jabirr people have in tum taught Jabirr Jabirr laws and customs to the generations which have followed—at [9].
[77]	[Name removed]’s mother and father, her aunties and uncles, taught her the stories and the law from the Bugarrigarra. They taught her about their country: ‘Language and country are the same. The language made the country’—at [5]. [Name removed] has been shown his country by his elders, he came to understand it through his mother, his grandmother’s brother taught him to call out to the names of the old people for safety on country—at [11]-[13]. [Name removed] has learnt things from her parents and grandparents which she has taught her own children and grandchildren, about the bush and is resources, about sacred country—[19] and [27]-[29].
Consideration
[78]	The information summarised in my reasons above and in relation to ss 190B(5)(a) and (b) in my view, support the assertion that the native title claim group continues to hold native title in accordance with its traditional laws and customs. Attachment F and the affidavits contain many statements (some of which are summarised above) that assert the continuity of the native title claim group’s traditional laws and customs. Further, all of the affidavits illustrate and, in my view, demonstrate that these laws and customs have been passed from generation to generation by traditional modes of oral transmission, teaching and common practice, and continue to be acknowledged and observed today among the current generations of the claim group.
[79]	I am satisfied there is sufficient information before me to support the assertion that the native title claim group continues to hold native title in accordance with its traditional laws and customs.
Conclusion
[80]	The application satisfies the condition of s 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s 190B(5).
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.
[81]	For the application to meet this merit condition, I must be satisfied that at least one of the native title rights and interests claimed by the native title group can be established, prima facie. I refer to the comments made by Mansfield J in Doepel about the nature of the test at s 190B(6):
•	it is a prima facie test and ‘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’—at [135].
•	it involves 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]. 
[82]	I have examined the factual basis for the assertion that the claimed native title rights and interests exist against each individual right and interest claimed in the application to determine whether prima facie, they:
•	exist under traditional law and custom in relation to any of the land or waters under claim;
•	are native title rights and interests in relation to land or waters (see chapeau to s 223(1)); and
•	are rights and interests that have not been extinguished over the whole of the application area.
Consideration
[83]	In my view, as set out above at s 190B(5), the application provides a sufficient factual basis to support the assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group that give rise to the claimed native title rights and interests. What follows is my consideration of each of the rights and interests claimed in the application as to whether they are prima facie established to exist under the native title claim group’s traditional laws and customs.
Exclusive right
Native title where traditional rights are wholly recognisable
1. Paragraph [2] applies to every part of the claim area:
(a) where there has been no extinguishment to any extent of native title or where any extinguishment is required to be disregarded; and 
(b) which is not subject to the public right to navigate or the public right to fish.
2. Where this paragraph [2] applies, the right possessed under traditional law and customs is properly interpreted as, and the native title right recognised by the common law of Australia is, the right of possession, occupation, use and enjoyment of land and waters as against the whole world.
[84]	I understand this statement to be a claim to the right of possession, occupation, use and enjoyment of the land and waters of the claim area as against all others, but only where it can be recognised or sustained. I have taken account of what the applicant has to say in relation to those traditional laws and customs that give rise to the right to exclusive possession and have considered whether it is sufficient to support the claim such that it can be established prima facie.
[85]	The majority decision of the High Court in Western Australia v Ward (2002) 213 CLR 1; (2002) 191 ALR 1; [2002] HCA 28 (Ward HC) considered that ‘[t]he expression “possession, occupation, use and enjoyment ... to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land. Further, that expression (as an aggregate) conveys ‘the assertion of rights of control over the land’ which necessarily flow ‘from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country’—at [89] and [93]. Ward HC is authority that, subject to the satisfaction of other requirements, a claim to exclusive possession, occupation, use and enjoyment of lands and waters can be prima facie established.
[86]	Further, the nature of exclusive possession was considered by the Full Court of the Federal Court in Griffiths v Northern Territory of Australia [2007] FCAFC 178 (Griffiths). In that instance, the Court found a claim to exclusive possession, use or occupation did not require demonstration that a native title claim group could exclude people from their country in a manner analogous to a proprietary right of exclusion. Rather the Court found that:
'The relationship to country is essentially a "spiritual affair" ... The question of exclusivity depends upon the ability of [a native title claim group] to effectively exclude from their country people not of their origin'—at [127].
[87]	Such effective exclusion is determinable by reference to the content of traditional law and custom. In the specific facts of Griffiths, the Court found that the traditional laws and customs of the native title holders included spiritual sanction being visited upon unauthorised entrants to country. The Court further found that through the relevant law and custom, the native title holders were the 'gatekeepers' for the purposes of preventing such harm and avoiding injury to country. On this basis the Court found that exclusive possession was held by the native title holders—at [127].
[88]	Schedule F describes the control and regulation of access under traditional law and custom, in respect of any ‘person who is not a member of the society of which the native title claim group is part’:
Strangers ideally must ask permission from, and can be refused access or have conditions imposed on access to an area, or be required to be accompanied by persons recognised as possessing rights or interests in and knowledge of, or authority in respect of, the area—at [16].
[89]	Regulation of access also relates to members of the claim group:
All members of the claim group can routinely have access to land and waters across the claim area beyond the area or areas in which they possess rights at the local level for the purposes of hunting, gathering and fishing (with permission whether express, implied or continuing) though they are expected to comply with local area restrictions and requirements relating to access to particular places, sites and areas—at [18].
[90]	[Name removed]:
My relatives told me this was all Jabirr Jabirr country and they said that when people come from outside they should ask our permission to enter this country. Even if no-one was there, people should ask the country permission to enter because the spirits are there. If visitors took something from our country, they would share it with us. This is the traditional law. It shows respect for the country. The country will look after you if you act according to this law. If you don't do this, next time you will have bad luck in that place when hunting and fishing—at [7].
[91]	[Name removed]:
It is our right when some stranger or mining company comes on to our country that they talk to us first. We are Jabirr Jabirr people for that country and we have to make decisions for it—at [15].
[92]	The application and additional material all make reference to the ‘the law from the dreaming’, ‘Bugarrugarrair Bugarrgarr’. This is law said to have been:
 ...acknowledged and observed by ancestors of the present Jabirr Jabirr claim group immediately prior to 1829, and constituted the basis on which those persons held rights and interests to use, occupy and possess all the land and waters within the external boundaries of the application area at the time to the exclusion of other peoples, regarding themselves as collectively “owning” the country’—[Name removed] at [4].
[93]	Schedule G of the application states that controlling the access and use of the claim area by others is an activity (amongst others listed) undertaken by members of the claim group.
[94]	In my view, the right to exclusive possession (where it can be recognised) is evidenced in the material before me such that I consider that it can be established, prima facie, over areas covered by the application if and where it can be recognised.
Non-exclusive rights
Native title where traditional rights are partially recognisable
3.	Paragraph [4] applies to every part of the claim area to which paragraph [2] does not apply.
4.	Where this paragraph [4] applies, the rights and interests possessed under traditional law and customs are properly interpreted as the rights of possession, occupation, use and enjoyment of land and waters as against the whole world, but the native title rights and interests recognised by the common law of Australia are the rights to do all such things as may be done under the right referred to in paragraph [2] save for controlling access to or the use of land or waters by others; being the (non-exclusive) rights to:
(a)	have access to, remain on and use the land and waters;
(b)	access and take the resources of the land and waters; and
(c)	protect places, areas and things of traditional significance on the land and waters
[95]	These rights are evidenced in the application and in the additional material, suggesting the rights exist under the traditional laws and customs of the native title claim group.
[96]	The traditional laws and customs under which these rights are asserted to exist have been referred to in my discussion above of the factual basis material provided in support of the assertions at s 190B(5) and are relevant to my consideration that this right is prima facie established. Attachment F sets out information relating to the laws and customs under which it is asserted the claimed native title rights and interests are possessed. Proprietary connection to land and waters is the basis for possessing rights in relation to land and waters and governs and regulates access and rights to speak for country and protecting and looking after country—at [22]-[24].
[97]	The additional material asserts that members of the claim group and their predecessors have hunted and gathered resources from the claim area since sovereignty to the present. The affidavits illustrate the group’s traditional laws and customs in relation to the use of resources with stories and examples of how they have exercised these rights throughout their lives. Members of the claim group continue to maintain and protect sites and areas of significance under their traditional laws and customs. In the exercise of such rights, Jabirr Jabirr people have accessed and remained on the land and waters of the claim area and continue to do so.
[98]	I consider that these rights can be established, prima facie.
Conclusion
[99]	I am satisfied all the rights claimed in the application, as described at Schedule E, can be established prima facie and the application therefore satisfies 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.
[100]	Under s 190B(7), I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. This condition ‘can be seen as requiring some measure of substantive (as distinct from procedural) quality control upon the application’—Gudjala FC at [84].
[101]	In Doepel, Mansfield J also considers the nature of the Registrar’s task at s 190B(7):
Section 190B(7) imposes a different task upon the Registrar. It does require the Registrar to be satisfied of a particular fact or particular facts. It therefore requires evidentiary material to be presented to the Registrar. The focus is, however, a confined one. It is not the same focus as that of the Court when it comes to hear and determine the application for determination of native title rights and interests. The focus is upon the relationship of at least one member of the native title claim group with some part of the claim area. It can be seen, as with s 190B(6), as requiring some measure of substantive (as distinct from procedural) quality control upon the application if it is to be accepted for registration—at [18].
[102]	The applicant’s submissions refer to claimant, [Name removed], who has knowledge of which plants in the inland areas are edible, where to find those plants and find water. She takes resources from those areas, including gubinge, onion grass, bush potatoes and sandalwood trees (they have fruit, and their branches and leaves can be used as well), fibre from wattle trees (which can be used to make string), wattle seed (which can be used in damper) and a crawling vine which bears a white fruit—at page 13.
[103]	Schedule M of the application provides brief detail in relation to [Name removed]’s fishing and gathering of food and medicine in accordance with traditional laws and customs of the native title claim group. As evidenced in the affidavits, members of the claim group continue to visit many areas within the area covered by the application and to carry out various traditional activities associated with ‘looking after country’ and in exercise of their claimed native title rights and interests. Sufficient material is provided to show that, in their acknowledgement and observance of the traditional laws and customs, members of the native title claim group have a traditional physical connection with the land and waters of the application area. The material is referred to and quoted extensively in the consideration above for both ss 190B(5) and 190B(6). I am satisfied that at least one member of the claim group currently has a traditional physical connection with parts of the application area.
[104]	The application satisfies 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 s61A (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.

[105]	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)
[106]	Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. The geospatial report and a search that I have made of the Tribunal’s geospatial databases on the day of my decision confirms there are no approved determinations of native title over the area covered by the application.
Section 61A(2)
[107]	Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply. Schedule B provides the relevant general exclusion statements that the application excludes any area where a previous exclusive possession act was done in relation to the area covered by the application.
Section 61A(3)
[108]	Section 61A(3) provides that an application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where a previous non-exclusive possession act was done, unless the circumstances described in s 61A(4) apply. Schedule E of the application provides a statement that in my view meets the requirements of this section which qualifies the applicant’s claim to exclusive possession, by stating that it is claimed:
(i)	in every part of the claim area (if any) (emphasis added); and
(ii)	where there has been no extinguishment to any extent of native title or where any extinguishment is required to be disregarded…’—at [1]. 
Conclusion
[109]	In my view the application does not offend 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.
[110]	I consider each of the subconditions of s 190B(9) in my reasons below.
Section 190B(9)(a)
[111]	Schedule Q identifies that no claim is made to ownership of minerals, petroleum or gas that are wholly owned by the Crown.
Section 190B(9)(b)
[112]	Schedule P identifies that no claim is made to exclusive possession over any offshore place.
Section 190B(9)(c)
[113]	There is no information in the application or otherwise to indicate that any native title rights and/or interests in the application area have been extinguished.
Conclusion
[114]	In my view the application does not offend the provisions of ss 190B(9)(a), (b) and (c) and therefore the application meets the condition of s 190B(9).

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. 
[115]	The application satisfies the condition of s 190C(2), because it contains all of the details and other information and documents required by ss 61 and 62, as set out in the reasons below. 
[116]	Section 190C(2) ‘directs attention to the contents of the application and supporting affidavits’ and ‘seeks to ensure that the application contains ‘all details’ required by s 61’. This condition is procedural only and simply requires the Registrar to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss 61 and 62. I am not required to undertake any merit or qualitative assessment of the material for the purposes—Doepel at [16] and also at [35] to [39]. In other words, does the application contain the prescribed details and other information required of it? 
[117]	Below I consider each of the particular parts of ss 61 and 62, which require the application to contain details/other information or to be accompanied by an affidavit or other documents.
Native title claim group: s 61(1)
[118]	This section provides that a native title determination application may be made by ‘a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group’. The Registrar must consider ‘whether the application sets out the native title claim group in the terms required by s 61’—Doepel at [36]. Specifically:
If the description of the native title claim group were to indicate that not all the persons in the native title claim group were included, or that it was in fact a sub-group of the native title claim group, then the relevant requirement of s 190C(2) would not be met and the Registrar should not accept the claim for registration—Doepel at [36].
[119]	 In my view, there is nothing on the face of the amended application that suggests that it is not brought on behalf of all members of the native title claim group.
[120]	The application contains all details and other information required by s 61(1). 
Name and address for service: s 61(3)
[121]	Part B of the application on page 11 provides the name and address for service of the persons who are the applicant.
[122]	 The application contains all details and other information required by s 61(3). 
Native title claim group named/described: s 61(4)
[123]	Schedule A provides a description of the persons who comprise the native title claim group.
[124]	The application contains all details and other information required by s 61(4).
Affidavits in prescribed form: s 62(1)(a)
[125]	Each of the five persons who comprise the applicant have signed an affidavit swearing or affirming, in full, to all the statements required of this section.
[126]	The application is accompanied by the affidavit required by s 62(1)(a).
Details required by s 62(1)(b)
[127]	Subsection 62(1)(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)
[128]	Schedule B provides a list of general exclusion statements for those areas not covered by the application and refers to Attachment B for the description of the external boundaries of the area covered by the application which is a metes and bounds description of those geographical external boundaries, referencing geographic coordinate points.
Map of external boundaries of the area: s 62(2)(b)
[129]	Schedule C refers to Attachment C being a map showing the external boundaries of the area covered by the application.
Searches: s 62(2)(c)
[130]	Schedule D provides the statement that no searches have been carried out.
Description of native title rights and interests: s 62(2)(d)
[131]	Schedule E provides a description of the native title rights and interests claimed in relation to the area covered by the application.
Description of factual basis: s 62(2)(e)
[132]	Schedule F refers to Attachment F which provides statements giving a general description of the factual basis for the claim made in the application.
Activities: s 62(2)(f)
[133]	Schedule G identifies activities the claim group currently carries out in relation to the area covered by the amended application.
Other applications: s 62(2)(g)
[134]	Schedule H identifies that native title determination application WAD374/2013 is made in relation to part of the area covered by the Jabirr Jabirr application.
Section 24MD(6B)(c) notices: s 62(2)(ga)
[135]	Schedule HA refers to Attachment HA which is a notice given by the Minister of Lands under the Land Administration Act 1997 (WA) and s 24MD(6A) & (6B) of the Act.
Section 29 notices: s 62(2)(h)
[136]	Schedule I refers to Attachment I which provides a list of notices given under s 29 between June 1999 and August 2013.
Conclusion
[137]	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.
[138]	The requirement that the Registrar be satisfied in the terms set out in s 190C(3) is only triggered if a previous application meets the conditions found in ss 190C(3)(a), (b) and (c)—see Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC) at [9]. Section 190C(3) relates to ensuring there are no common native title claim group members between the application currently being considered for registration (‘the current application’) and any overlapping ‘previous application’ that is a registered application when the current application was made in the Court. The Jabirr Jabirr application, which is the current application for the purposes of s 190C(3), was made when it was filed in the Court on 23 September 2013.
[139]	The geospatial report identifies that one native title determination application falls within the external boundaries of the current application: WAD374/2013—Goolarabooloo People. A search of the Register of Native Title Claims (the Register) confirms that this application was entered onto the Register on 12 December 2013.
[140]	 As the overlapping Goolarabooloo People application was not on the Register at the time the Jabirr Jabirr application was made, it does not meet the threshold required by subsection (b). The current application therefore is not overlapped by any other applications in the sense mandated in s 190C(3)(a) to (c) and there is no requirement that I consider the issue of common claim group membership.
[141]	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. 

Under s 190C(5), if 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 in s 190C(4)(b) above has been met, and
(b)	briefly sets out the grounds on which the Registrar should consider that the requirement in s 190C(4)(b) above has been met.
[142]	For the condition of s 190C(4) to be met, I must be satisfied that the requirements set out in either ss 190C(4)(a) or (b) are met. Doepel discusses the differing functions under the two alternative limbs of s 190C(4):
Section 190C(4) indicates clearly the different nature of the conditions imposed upon the Registrar . . . The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic. In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group—at [78]. 
[143]	Schedule R of the application indicates that the application has not been certified and refers to Attachment R. It is therefore necessary to consider whether the application meets the condition in s 190C(4)(b)—that is, the applicant is a member of the native title claim group and is authorised by all the other persons in the claim group to make the application and deal with matters arising in relation to it.
[144]	In my consideration of the authorisation condition at s 190C(4)(b) I must also consider the requirements as set out in s 190C(5), the terms of which are set out above.
Information considered
[145]	 Attachment R has not been amended. It comprises a number of statements relevant to the assertion that the applicant was authorised to make the application and to deal with matters arising in relation to it. This process is said to have occurred at a meeting of the native title claim group in Broome on 16 April 2013 and Attachment R sets out the decision-making process used to authorise the persons who comprise the applicant.
[146]	On 16 November 2015, the applicant provided additional material directly to the Registrar which included information pertaining to the authorisation of the applicant to make the application and the decisions made relating to its amendment:
•	Submissions addressing selected requirements of ss 190B and 190C of the NTA
•	Affidavit of [Name removed], affirmed 1 September 2015
•	Annexure SB1—copy of affidavit affirmed by [Name removed] on 31 July 2013
•	Annexure SB2—copy of affidavit affirmed by [Name removed] on 31 July 2013
•	Annexure SB3—notice of meeting published in Broome Advertiser on 30 October 2014
•	Annexure SB4—notice of meeting published in Kimberely Echo on 30 October 2014
•	Annexure SB5—Notice of Jabirr Jabirr Authorisation Meeting (of 21 November 2014) posted to members of the native title claim group 
•	Annexure SB6—family tree form for completion by persons not named on the registration attendance list, and
•	Annexure SB7—Jabirr Jabirr Authorisation Meeting Agenda including 2 map attachments.
[147]	I have also had regard to the previous delegate’s statement of reasons for decision, accepting for registration the claim in the application, and specifically the reasons she provided for the authorisation condition. In my view the reasons provided by the delegate remain relevant and applicable because the amended application relies on the same material relied on in the original application – principally [Name removed]’s affidavit and annexures of 31 July 2013.
[148]	The only material difference between the 2013 application and the one now before me for consideration is a change to the description of the native title claim group. On this issue, Mr Blackshield’s submissions state under the heading ‘subsection 190C(4)’:
Both the authority of the applicant to make the original application, and its authority to make the amended application are addressed in my own affidavit. The amendments to the claim group description do not involve any substantive changes to the composition of the claim group—page 2.
[149]	I therefore have information before me relevant to authorisation of the applicant in 2013 when the application was originally filed, as well as information that goes to the applicant’s authority to make this amended application.
Changes to the composition of the native title claim group
[150]	Schedule S identifies the change to the description of the native title claim group at Schedule A:
Schedule A has been amended by adding the additional ancestor “Gardarlagan”, by replacing the named ancestors “Deborah, sister of Senanus” with the couple “Jacky and Deborah” and by adding the words “and mother of Elsie, Bill, Bardu and Rosie” to the description of “Dorothy, sister of Senanus”. None of these amendments make any change to the claim group composition.
[151]	[Name removed] attests in his 1 September 2015 affidavit that ‘neither of the changes to the list of ancestors in Schedule A of the Jabirr Jabirr application were or are intended to effect any substantive change to the composition of the native title claim group, but, rather, are intended as gestures of respect to particular claim group families’—at [14].
Authorisation in 2013 of persons comprising the applicant
[152]	The previous delegate decided that the application contained at Schedule R the statements required of s 190C(5), the terms of which are stated above. As Attachment R has not been amended I have reached the same conclusion.
[153]	The previous delegate then decided that the requirements of s 190C(4)(b) were also met. Her conclusion, following her assessment of the material before her, being:
I accept that the authorisation meeting for this application was well advertised and that steps were taken to give notice to all people who might wish to attend the meeting, including the sending of notices to the known members of the native title claim group contained on the Kimberley Land Council database, such that it appears that every reasonable opportunity has been extended to the native title claim group to participate in the authorisation process. On the basis of the information before me I accept that the agreed and adopted decision making process of the claim group was followed and that the applicant 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—at page 15-16.
[154]	There has been no change to the composition of the applicant since the original authorisation. It is on this basis that I have decided to adopt the previous delegate’s summaries of the material and her assessment, reasoning and conclusions in her statement of reasons in respect of the 2013 authorisation of the applicant to make and deal with the Jabirr Jabirr application. I have formed the view that I agree with the previous delegate’s summaries of the material because the same facts and law apply. I have reached the same conclusion and agree with the basis for her conclusions.
Amendments to the application
[155]	The additional material provided by the applicant evidences a process undertaken by the native title claim group whereby the authority of the applicant was confirmed, and agreement was given, to make the current amendments to the application. The details of this process, the conduct of the meeting of the native title claim group on 21 November 2014 and the resolutions reached in respect of the proposed amendments are all set out in [Name removed]’s affidavit of 1 September 2015.
[156]	In my view, there is nothing in this material, or in the rest of the application, that brings into question the continuing authorisation of the applicant to make and deal with the Jabirr Jabirr application in accordance with the registration requirements of s 190C(4)(b).
Conclusion
[157]	For the reasons set out above, I am satisfied that the requirements set out in s 190C(4)(b) are met.

[End of reasons]

Attachment A
Information to be included on the Register of Native Title Claims
Application name	Jabirr Jabirr	
NNTT file no.	WC2013/007	
Federal Court of Australia file no.	WAD357/2013	
In accordance with ss 190(1) and 186 of the Native Title Act 1993 (Cwlth), the following is to be entered on the Register of Native Title Claims for the above application.
Section 186(1): Mandatory information
Application filed/lodged with:
Federal Court of Australia
Date application filed/lodged:
As per Schedule
Date application entered on Register:
As per Schedule
Applicant:
As per Schedule 
Applicant’s address for service:
As per Schedule
Area covered by application:
As per Schedule
Persons claiming to hold native title:
As per Schedule
Registered native title rights and interests:
As per Schedule