Registration test decision

Application name	Scott Franks and the Plains Clans of the Wonnarua People	
Name of applicant	Scott McCain Franks and Robert John Lester 	
NNTT file no.	NC2013/006	
Federal Court of Australia file no.	NSD1680/2013	
Date application made	19 August 2013	
Date application last amended	8 December 2014	
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:	16 January 2015	
___________________________________

Heidi Evans
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 8 August 2014 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 (the Registrar), for the decision to accept the claim for registration pursuant to s 190A of the Act. 
[2]	All references in these reasons to legislative sections refer to the Native Title Act 1993 (Cth) 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 and background
[3]	The application was first made on 19 August 2013. On 27 February 2014, a delegate of the Registrar decided that the claim should not be registered. On 23 June 2014 the applicant sought and was granted leave to amend the application, with the re-engrossed Form 1 and accompanying documents filed that same day. A copy of that amended application was provided to the Registrar pursuant to s 64(4) on 25 June 2014.
[4]	Subsequently the applicant was informed that the application would not meet all of the conditions of registration under ss 190B and 190C and notified that the application may be amended.
[5]	On 8 December 2014, the Registrar of the Federal Court of Australia (the Court) gave a copy of orders also made 8 December 2014 regarding the application to the Registrar. These orders provide that the amended application of 23 June 2014 be further amended to replace the existing written description of the application area. The orders also provide that ‘any requirement to file and serve a further amended native title determination application be waived’.  
[6]	Although the Registrar has not been provided with a complete copy of the 8 December 2014 amended application, I consider that the Registrar’s duty to consider the claim made in the application under s 190A of the Act is triggered.
[7]	The amended application before me, therefore, comprises a copy of the re-engrossed Form 1 filed on 23 June 2014, with a new Attachment B1 to Schedule B replacing the existing Attachment B1, filed 8 December 2014.
[8]	I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply to this claim. Subsection 190A(1A) applies where the application is amended as a result of an order made by the Court pursuant to s 87A. I note that the Court has not made any such order in relation to the amended claim.
[9]	Subsection 190A(6A) only applies where the Registrar accepted the earlier claim for registration pursuant to s 190A(6). As above, the original application filed in the Court on 19 August 2014 was not accepted for registration on 27 February 2014, and the previous amended application was further amended prior to the registration test being applied.
[10]	Therefore, in accordance with subsection 190A(6), I must accept the claim for registration if it satisfies all of the conditions in ss 190B and 190C of the Act. This is commonly referred to as the registration test.
[11]	On 20 October 2014, in relation to the previous amended application, the case manager was advised of a notice issued pursuant to s 29, affecting the application. The notice, for Mining Lease Application Number 484 (MLA 484), specified a notification day of 6 November 2014. Therefore, in accordance with s 190A(2)(f), it is my understanding that I must use my best endeavours to finish considering the claim by 6 March 2015.
Registration test
[12]	Section 190B sets out conditions that test particular merits of the claim for native title. Section 190C sets out conditions about ‘procedural and other matters’. Included among the procedural conditions is a requirement that the application must contain certain specified information and documents. In my reasons below I consider the s 190C requirements first, in order to assess whether the application contains the information and documents required by s 190C before turning to questions regarding the merit of that material for the purposes of s 190B.
[13]	Pursuant to ss 190A(6) and (6B), the claim in the application must be accepted for registration because it does satisfy all of the conditions in ss 190B and 190C. 
Information considered when making the decision
[14]	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. 
[15]	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.
[16]	The information and documents that I have considered in reaching my decision are set out below:
•	amended Scott Franks and the Plains Clans of the Wonnarua People application, including the revised Attachment B1 to Schedule B, filed in the Federal Court on 8 December 2014;
•	previous amended Scott Franks and the Plains Clans of the Wonnarua People application, filed 23 June 2014;
•	previous Scott Franks and the Plains Clans of the Wonnarua People application, filed 19 August 2013;
•	orders of the Court dated 8 December 2014;
•	geospatial assessment and overlap analysis dated 18 December 2014 (GeoTrack: 2014/2309);
•	notice pursuant to s 29 dated 15 October 2014 from the State of NSW (the State) regarding Mining Lease Application No. 484;
•	file note prepared by the case manager dated 6 July 2014;
•	letter from the applicant’s legal representative dated 25 July 2014;
•	email from the case manager dated 6 November 2014.   
[17]	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. 
[18]	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
[19]	As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness, which seek to ensure that decisions are made in a fair, just and unbiased way. I note that the common law duty to afford procedural fairness may be excluded by express terms of the statute under which the administrative decision is made or by any necessary implication—Hazelbane v Doepel [2008] FCA 290 at [23]–[31]. The steps that I and other officers of the Tribunal have undertaken to ensure procedural fairness is observed, are set out below.
[20]	On 9 December 2014, the case manager wrote to the State, advising that the delegate had determined that neither ss 190A(1A) nor 190A(6A) applied to the amended application and of the anticipated date by which a decision would be made. The State was invited to make submissions in relation to the amended application by 19 December 2014. No submission has been received from the State.
[21]	Also on 9 December 2014, the case manager wrote to the applicant advising that the delegate was of the view that neither s 190A(1A) nor s 190A(6A) was applicable. The applicant was informed of the anticipated date by which a decision would be made.
[22]	In relation to the previous amended application of 23 June 2014, by letter dated 25 July 2014, the applicant had provided additional material directly to the Registrar’s delegate for her consideration in relation to the registration testing of the claim.
[23]	By letter also of 5 August 2014, the case manager wrote to the State and provided the State with a copy of the additional material. The State was given until Friday 22 August 2014 to comment on that material. No submissions were received from the State within that time, or following.  

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. 
[24]	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. 
[25]	In reaching my decision for the condition in s 190C(2), I understand that this condition is procedural only and simply requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s 190C(2)— Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] and also at [35]–[39]. In other words, does the application contain the prescribed details and other information? 
[26]	It is also my view that I need only consider those parts of ss 61 and 62 which impose requirements relating to the application containing certain details and information or being accompanied by any affidavit or other document (as specified in s 190C(2)). I therefore do not consider the requirements of s 61(2), as it imposes no obligations of this nature in relation to the application.  I am also of the view that I do not need to consider the requirements of s 61(5).  The matters in ss 61(5)(a), (b) and (d) relating to the Court’s prescribed form, filing in the Court and payment of fees, in my view, are matters for the Court. They do not, in my view, require any separate consideration by the Registrar. Paragraph 61(5)(c), which requires that the application contain such information as is prescribed, does not need to be considered by me under s 190C(2). I already test these things under s 190C(2) where required by those parts of ss 61 and 62 which actually identify the details/other information that must be in the application and the accompanying prescribed affidavit/documents.
[27]	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)
[28]	It is only where the description of the native title claim group indicates that not all of the persons in the group were included, or that the description is merely a sub-group of the actual native title claim group, that the requirement at s 61(1) for the purposes of s 190C(2) will not be met – Doepel at [36].  
[29]	A description of the persons comprising the native title claim group is contained in Schedule A. There is nothing within that description, in my view, that suggests that any persons have been excluded, or that the description does not include all of the persons who are in the native title claim group.
[30]	The application contains all details and other information required by s 61(1). 
Name and address for service: s 61(3)
[31]	The name and address for service of the applicant appears in Part B of the application. 
[32]	The application contains all details and other information required by s 61(3). 
Native title claim group named/described: s 61(4)
[33]	The requirement at s 61(4) for the purposes of s 190C(2) is merely procedural. That is, I am to be satisfied that the application contains the information required, namely information about the persons comprising the native title claim group. I am not to consider the correctness of that information – see Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 (Wakaman) at [34]; Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007) at [31]–[32].
[34]	As above, a description of the persons comprising the native title claim group appears in Schedule A of the application.
[35]	The application contains all details and other information required by s 61(4).
Affidavits in prescribed form: s 62(1)(a)
[36]	The requirement at s 62(1)(a) for the purposes of s 190C(2) is that the application is accompanied by an affidavit sworn by the applicant. That affidavit must speak to the matters set out in subsections (i)–(v) of s 62(1)(a).
[37]	As stated in the Application Overview above, the amended application before me comprises a copy of the re-engrossed Form 1 filed on 23 June 2014, with a new Attachment B1 to Schedule B replacing the existing Attachment B1, filed 8 December 2014. The amended application is not accompanied by the affidavit required pursuant to s 62(1)(a) and s 190C(2).
[38]	The original application, first filed in the Court on 19 August 2013, was accompanied by the requisite affidavits, one sworn by each of the applicant persons, namely Scott McCain Franks and Robert John Lester. I note that there has been no change to the applicant. 
[39]	The affidavits were both sworn by the applicant persons on 14 August 2013, and having turned my mind to the contents of the affidavits, I am satisfied that they contain the statements prescribed by ss 62(1)(a)(i)–(v). The affidavits are signed, dated and have been competently witnessed.
[40]	The question is, therefore, whether I can be satisfied pursuant to s 190C(2) that the application is accompanied by the requisite affidavits.
[41]	French J, in Drury v Western Australia [2000] FCA 132, addressed the requirement for fresh affidavits to accompany amended applications, and provided the following guidance in this respect when he commented that:
Section 62, insofar as it deals with accompanying affidavits in subs 62(1), is dealing with the position at the point of filing of the application. It is not, in my opinion, intended to cover amendment of applications… Section 62 does not, either expressly or by implication, convey a requirement that fresh affidavits have to be filed on the occasion of every amendment.
The authorisation which satisfies the requirements of s 62 in respect of a new application is intended to cover the ability of the applicants to deal with matters arising in relation to the application. Section 62A expressly provides that in the case of a claimant application, the applicant may deal with all matters arising under the Native Title Act in relation to the application. In my opinion such matters include the amendment of the application from time to time – at [11] – [12].
[42]	His Honour also discussed those situations where the Court may direct affidavit evidence in support of amended applications. In this regard, His Honour held that ‘an appropriate case’ where such evidence could be required may include amendments involving the addition of applicants, or where two applications are combined and they do not have precisely the same applicants – at [14]. While these comments were made in relation to the requirements of the now repealed s 64(5), it is my view that they continue to have relevance for the current situation.
[43]	I note that the amended application before me does not involve the addition of any applicant persons, nor does it involve the combining of previous applications. The application has been amended to reduce the area covered by the application, and to provide further factual basis material in support of the claim to native title. From information provided by the case manager, it is my understanding that the amendments are a direct response by the applicant to the failure of the previous application to satisfy certain conditions of the registration test. 
[44]	In my view, the authority given to the applicant by the native title claim group, in only May 2013, extends to the applicant amending that application. Further, in my view, it is reasonable to consider that that authority extends to amending the application particularly where those amendments seek to remedy deficiencies in the previous application that led to the failure of the application to satisfy the requirements of the registration test. This is on the basis that ultimately, the outcome sought by the native title claim group is procedural rights in relation to the application area. 
[45]	The Court has not required the filing of fresh affidavits in this situation, and, in my view, there is no power or authority by which I can demand them. Nor, for the reasons set out above, do I consider it appropriate in these circumstances that I would do so.
[46]	I am of the view, therefore, that it is appropriate for me to consider the affidavits filed with the original application for the purposes of s 190C(2). As set out in my reasons above, I am satisfied that these affidavits comply with the requirements of s 62(1)(a). 
[47]	The application is accompanied by the affidavit required by s 62(1)(a).
Details required by s 62(1)(b)
[48]	Subsection 62(1)(b) requires that the application contain the details specified in ss 62(2)(a)–(h), as identified in the reasons below.
Information about the boundaries of the area: s 62(2)(a)
[49]	A written description of the external boundary of the application area appears at Attachment B1 to Schedule B. Information about those areas within that external boundary that are not covered by the application is given in Attachment B2 to Schedule B.
Map of external boundaries of the area: s 62(2)(b)
[50]	A map of the external boundary of the application area is contained in Attachment C to Schedule C.
Searches: s 62(2)(c)
[51]	Details regarding searches undertaken by the applicant are provided in Schedule D.
Description of native title rights and interests: s 62(2)(d)
[52]	A description of the native title rights and interests claimed in relation to the land and waters of the application area appears in Schedule E.
Description of factual basis: s 62(2)(e)
[53]	A general description of the factual basis on which it is asserted that the native title rights and interests claimed exist is contained in Schedule F.
Activities: s 62(2)(f)
[54]	The activities currently undertaken by members of the claim group in relation to the land and waters of the application area are set out in Schedule G.
Other applications: s 62(2)(g)
[55]	Details of other applications made in relation to the area covered by the application are provided in Schedule H.
Section 24MD(6B)(c) notices: s 62(2)(ga)
[56]	Information about s 24MD(6B)(c) notices is given in Schedule HA. 
Section 29 notices: s 62(2)(h)
[57]	Schedule I refers to Attachment I as containing information about notices pursuant to s 29 issued in relation to the application area.
Conclusion
[58]	The application contains the details specified in ss 62(2)(a)–(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.
[59]	It is my understanding that it is only where a previous application meets all of the criteria set out at subsections (a)–(c) of s 190C(3), that the requirement for me to consider the possibility of common claimants arises – Western Australia v Strickland [2000] FCA 652 (Strickland FC) at [9].
[60]	Regarding subsection (a), the geospatial assessment and overlap analysis (geospatial assessment) prepared by the Tribunal’s Geospatial Services (GeoTrack: 2014/2309, dated 18 December 2014) provides that there are two applications that cover part of the area covered by the current application. These are the Gomeroi People application (NC2011/006) and the Awabakal and Guringai People application (NC2013/002).
[61]	Regarding subsection (b), the geospatial assessment provides that both the Gomeroi People application and the Awabakal and Guringai People application currently appear in an entry on the Register of Native Title Claims. 
[62]	I note that the current application was first made on 19 August 2013, and that this is the date relevant for the purposes of the phrase, ‘when the current application was made’ appearing in s 190C(3)(b) – Strickland FC at [41]–[52]. Having searched the information available to me through the Tribunal’s Registers, I am aware that there was an entry relating to both the Gomeroi People application and the Awabakal and Guringai People application appearing on the Register of Native Title Claims at that date.
[63]	Moving then, to a consideration of subsection (c), again, from information obtained through the Tribunal’s databases and Registers, I understand that both of the entries for those respective ‘previous applications’ were made as a result of those applications being considered for registration pursuant to s 190A. The Gomeroi People application was accepted for registration and entered on the Register of Native Title Claims on 20 January 2012, and the Awabakal and Guringai People application was accepted for registration and placed on the Register on 13 June 2013. Neither of those applications has since been removed from the Register.
[64]	Consequently, the requirement for me to be satisfied in the terms prescribed by s 190C(3), regarding common claimants between the previous applications and the current application, is triggered. 
[65]	I have produced a copy of an extract from the Register of Native Title Claims for each of the Gomeroi People and Awabakal and Guringai People applications. Included in the information contained in the extracts is the description of the native title claim groups for those previous applications. Both claim group descriptions operate by way of reference to a list of apical ancestors, as does the description of the claim group in the current application.
[66]	I have, therefore, turned my mind to those lists of apical ancestors, and considered whether the apical ancestors named in Schedule A of the current application, also appear in the claim group descriptions for the previous applications, which would result in common claimants between the previous application/s and the current application.
[67]	Neither of the two individuals named as apical ancestors for the current application are also named in the list of apical ancestors for either of the previous applications. I am satisfied, therefore, that no person included in the native title claim group for the current application was a member of the native title claim group for any previous application.
[68]	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. 
[69]	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. 
[70]	Schedule R of the application provides that it has not been certified, and refers to Attachment R as containing information relevant to the requirement at s 190C(4)(b). Regarding that requirement, it is my understanding that I must be ‘satisfied of the fact of authorisation by all members of the native title claim group’ – Doepel at [78]. In reaching the required level of satisfaction, I am not restricted to the statements contained in the application – Strickland at [57], approved on appeal to the Full Court in Strickland FC at [78].
[71]	The information pertaining to authorisation that is before me consists of a one-page document at Attachment R, and the two affidavits sworn by the applicant persons pursuant to s 62(1)(a).
[72]	The affidavits sworn by the deponents each include a statement that the deponent is ‘a member of the native title claim group’, and state the descent of that person from one of the apical ancestors named in Schedule A of the application. I am, therefore, satisfied that the applicant persons are members of the native title claim group.
[73]	Section 190C(5) prescribes further requirements where an application is authorised. Attachment R of the application states:
The persons comprising the Applicant are each members of the native title claim group and they are authorised to make this application, and deal with matters arising in relation to it, by all the other persons in the native title claim group – at [1].
[74]	I consider this sufficient for the purposes of the statement required by subsection (a) of s 190C(5).
[75]	Following this, the document sets out information that goes to the grounds upon which the Registrar should consider that this requirement has been met. It is my view that this information is sufficient for the purposes of ‘briefly setting out’ those grounds, as required by s 190C(5)(b).
[76]	Consequently, I am satisfied that the requirement of s 190C(5) is satisfied.
[77]	As to whether I can be satisfied of the fact of authorisation, Attachment R asserts that authorisation has occurred pursuant to a decision-making process mandated by the traditional laws and customs of the group. The following information is provided in relation to that process:
In summary, the elements of the traditional decision-making process are:
(i)	a decision requires the agreement of each family group within the PCWP [Plains Clans of the Wonnarua People];
(ii)	the persons in each family group who make decisions for that family are the persons accepted by the other family members as their Elders;
(iii)	 the Elders determine with whom and how they will consult before making a decision and each family group may appoint a representative authorised to speak for their family, who must report back to the Elders and follow instructions from the Elders.
[78]	Following this, Attachment R states that at a meeting of Elders and other members of the native title claim group, on 18 February 2012, it was confirmed that decisions regarding native title matters were to be made by the Heads of Family for the native title claim group, by discussion and agreement between them. 
[79]	The four persons recognised as the Heads of Family for the Plains Clans of the Wonnarua People, that is, the native title claim group, are named, and the information provides that those persons met in Singleton on 5 May 2013, and authorised the applicant to make the native title determination application and do all things necessary in relation to it.
[80]	I note that the information provided in relation to the authorisation of the applicant is relatively brief. I do not consider, however, that this is an obstacle in me reaching the required level of satisfaction at s 190C(4)(b). In Strickland, where the decision-making process asserted by the applicant was a traditionally-mandated process, French J held that:
The insertion of the word “briefly” at the beginning of paragraph 190C(5)(b) suggests that the legislature was not concerned to require any detailed explanation of the process by which authorisation is obtained. The sufficiency of the grounds upon which the Registrar should consider that the requirement has been met is primarily a matter for the Registrar – at [57].
[81]	His Honour went on, however, to emphasise the fundamental importance of the requirement of authorisation, finding that it was ‘not a condition to be met by formulaic statements in or in support of applications’ – at [57].
[82]	In Strickland, the information pertaining to authorisation asserted that the two applicant persons, as a result of their position as elders of the native title claim group, had authority under traditional law and custom acknowledged by the members of the group to make decisions in relation to native title matters. In this regard, French J held that while the ‘brevity of the assertion’ may be criticised, it was not for the Registrar or the Court to ‘reject the contention that all relevant authority is vested in the elders of the relevant native title claim group and that the applicants fall into that category’ – at [57].
[83]	I have turned my mind to the statements contained in Attachment R, and in the affidavits sworn by the applicant persons. In my view, that information clearly sets out that the applicant persons are members of the Plains Clans of the Wonnarua People native title claim group. It clearly sets out that it is a process mandated by the traditional laws and customs of the group by which the applicant was authorised. Details of that process, which I understand to be taken from the traditional laws and customs of the group, are also clearly set out. It is asserted that in February 2012 members and elders of the group confirmed that that was the appropriate decision-making process, and confirmed the particular persons who would act as Heads of Family. And finally, the information provides that at a meeting of those Heads of Family on 5 May 2013, the applicant was authorised in accordance with the process described.
[84]	I have not received any material that asserts that the applicant is not so authorised, nor is there any discrepancy in the material before me regarding the process by which authorisation was undertaken. Consequently, I consider that 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. 
[85]	For the reasons set out above, I am satisfied that the requirement set out in s 190C(4)(b) is met.

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.
[86]	Noting the wording of s 190B(2), it is to the written description and map of the application area contained in the application pursuant to ss 62(2)(a) and (b) that I have turned my mind in my consideration at this condition of the registration test.
[87]	As above, the written description of the external boundary of the application area appears at Attachment B1 to Schedule B. Attachment B1 is titled, ‘External boundary description’ and contains a metes and bounds description of the boundary, referencing catchment boundaries, roads, watercourses, cadastral boundaries and coordinate points. The description specifically excludes the following native title determination applications:
•	Plains Clans of the Wonnarua People #2 (NC2012/004);
•	Wonnarua Traditional Custodians (NC2012/005);
•	Wonnarua Traditional Custodians (NC2013/003);
•	Plains Clans of the Wonnarua People (NC2013/004).

[88]	Attachment B2 contains a list of general exclusions, that is, areas falling within the external boundary of the application area that are not covered by the application. I am of the view that there is nothing within this approach that results in any uncertainty in the description of the application area, nor does it offend the condition at s 190B(2) – see Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) at [50]–[55].
[89]	As above, a map of the area covered by the application appears at Attachment C to Schedule C. Attachment C is a colour copy of a map titled, ‘NSD1680/2013 Scott Franks & Anor on behalf of the Plains Clans of the Wonnarua People (NC2013/006)’, prepared by the Tribunal’s Geospatial Services on 8 April 2014. The map includes:
•	the application area depicted by a bold blue outline;
•	topographic background image;
•	scalebar, northpoint, coordinate grid and location diagram; and
•	notes relating to the source, currency and datum of data used to prepare the map.

[90]	The geospatial assessment concludes that the map and description are consistent and identify the application area with reasonable certainty. Having considered the written description and the map before me, I am similarly of the view that they are able to identify the application area, such that it can be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
[91]	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.
[92]	As above, a description of the native title claim group appears at Schedule A of the application. Pursuant to s 190B(3)(b), then, I must be satisfied that the persons in the group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. In Doepel, Mansfield J emphasised that the task was not to consider the correctness of the description, or whether the persons described do in fact qualify as members of the native title claim group – at [37]. Rather, the focus of my task is to be an ‘assessment of the sufficiency of the description of the group for the purpose of facilitating the identification of any person as part of the group’ – Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA (Wakaman) at [34]. 
[93]	The description of the native title claim group appears as follows:
The members of the native title claim group are the biological descendants of
(a)	Emily (who was born in approximately 1840, and was the mother of Henry Frederick Taggart who was born in Howes Valley, Broke in 1859 and who died on 5 March 1941 in the District of Singleton); and
(b)	Mary Shoe (who was born in approximately 1800 in the Singleton district, and who was the mother of Matilda Hughes who was born approximately 1833 in or around Scone, who married [name deleted] on 28 December 1856 at Fallbrook and who died on 5 October 1913 at Bridgeman, Patricks Plains Shire).
[94]	The description is straightforward, and I do not consider that there is anything controversial or ambiguous in its terms. There is only one condition or criterion by which group members are to be identified, and that is that they are biologically descended from one of the two apical ancestors named. 
[95]	While the application of the stated criterion may require some inquiry to ascertain the persons captured by the description, I do not consider that this is problematic in the description being sufficiently clear. Regarding a description identifying members of the claim group by reference to apical ancestors (amongst further criteria), Carr J in Western Australia v Native Title Registrar [1999] FCA 1591 (WA v NTR) held that ‘[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 clearly…The Act is clearly remedial in character and should be construed beneficially’ – at [67].
[96]	I am satisfied, therefore, that the persons in the group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. 
[97]	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.
[98]	Mansfield J, in Doepel, held that the ‘test of identifiability’ was ‘whether the claimed native title rights and interests are understandable and have meaning’ – at [99]. His Honour’s comments further suggest that this test is to be applied in light of the definition of ‘native title rights and interests’ set out in s 223 of the Act. While I have turned my mind to whether the rights and interests claimed can be understood as ‘native title rights and interests’, my view is that the focus of s 190B(4) is upon the description as a whole, and I have not, therefore, undertaken an individual assessment of each of the rights and interests claimed against the requirements of that definition. This task I have reserved for my consideration at the further merit condition of s 190B(6). 
[99]	Regarding the Registrar’s task at s 190B(4), French J in Strickland commented that ‘the sufficiency of the native title rights and interests is a matter of which the Registrar must be satisfied’ and that there is ‘scope for evaluative judgment’ in the Registrar performing that task – at [60]. I consider that this approach was supported by Mansfield J in Doepel when he held in relation to the requirement at s 190B(4) that ‘[i]t was a matter for the Registrar to exercise his judgment upon the expression of the native title rights and interests claimed’ – at [123]. His Honour further held that ‘[i]t was open to the Registrar to read the contents of Schedule E together, so that properly understood there was no inherent or explicit contradiction’ – at [123].
[100]	As above, a description of the native title rights and interests appears at Schedule E. I note that that description includes a broad claim to possession, occupation, use and enjoyment as against the whole world, however, I do not consider that there is anything within such a claim that offends the condition at s 190B(4) – Strickland at [60].
[101]	Paragraph [2] of Schedule E contains a list of non-exclusive rights, claimed over areas where exclusive possession cannot be recognised. 
[102]	Following this list, at paragraph [3], a number of qualifications appear. These include that the rights and interests claimed are subject to and exercisable in accordance with the laws of NSW and the Commonwealth, any rights conferred upon persons pursuant to those laws, and the traditional laws and customs acknowledged and observed by the native title claim group.
[103]	Having considered this description, and upon reading the contents of Schedule E together, I have formed the view that the rights and interests claimed are all understandable and have meaning, and that there is no inherent or explicit contradiction within that description.
[104]	I am satisfied, therefore, that the description contained in the application is sufficient to allow the native title rights and interests to be readily identified.
[105]	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.
[106]	My understanding of the law in relation to the requirement at s 190B(5) is that the general description of the factual basis provided in support of the claim must be ‘in sufficient detail to enable a genuine assessment of the application’, and be more than assertions at a high level of generality’ – Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala 2008) at [92]. In this way, a sufficient factual basis for the claim must have relevance to the particular native title claimed, by the particular native title group, over the particular land and waters of the application area – Gudjala 2007 at [39].
[107]	Noting the wording of s 62(2)(e), and the reference to a ‘general description’ of the factual basis, it is my view that the applicant is not required to produce evidence that is able to prove the facts necessary to make out the claim, as in a hearing – Gudjala 2008 at [92]. I am, therefore, required to address the quality of the asserted factual basis for the rights and interests claimed, but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests – Doepel at [17]. 
[108]	In my assessment of the factual basis material for the purposes of s 190B(5), I understand that I can rely on the statement contained in the affidavits required by s 62(1)(a) that the applicant believes all of the statements contained in the application to be true – Gudjala 2008 at [91]–[92].
[109]	Finally, I note that I am not restricted to the material contained in the application in my consideration at s 190B(5) – Doepel at [16].
[110]	I have considered each of the three assertions set out at s 190B(5) in turn in my reasons below.
Reasons for s 190B(5)(a)
[111]	Where the factual basis discloses an association only with particular areas within the application area, it is likely to be insufficient for the purposes of s 190B(5)(a) – Martin v Native Title Registrar [2001] FCA 16 (Martin) at [26]. Similarly, where the information pertaining to association consists merely of broad statements lacking geographic particularity to the claim area, and where the nature of the association - be it spiritual or physical – is unspecified, the material is unlikely to satisfy the condition – Martin at [26].
[112]	In Gudjala 2007, in an aspect of the decision not criticised by the Full Court on appeal, Dowsett J suggested the following types of information may be required of the factual basis at s 190B(5)(a):
•	information regarding the claim group as a whole having a present association with the area, although there is no requirement that all members must have such an association at all times;
•	information about an association of the predecessors of the whole group and the area over the period since sovereignty – at [52].
The applicant’s factual basis material – s 190B(5)(a)
[113]	I have summarised the applicant’s factual basis material relevant to the assertion at s 190B(5)(a) below:
•	the native title claim group identify as the Plains Clans of the Wonnarua People (PCWP), being the descendants of Wonnarua persons (namely Mary Shoe and Emily and their immediate descendants) who occupied a tract of country encompassing the middle reaches of the Hunter River and its tributaries including the area around Singleton and Patricks Plains – Attachment F at [1] and [5];
•	native title rights and interests held by the PCWP arise pursuant to Wonnarua traditional laws and customs surrounding: (a) ancestral connection to the area; (b) residence in the area; (c) traditional religious knowledge of and affiliations to and responsibility for the area; and (d) traditional knowledge of the resources of the area – Attachment F at [6];
•	archaeological evidence obtained from the application area demonstrates that there was Indigenous occupation of the area prior to sovereignty – Annexure A to Attachment F1 at [11.3] to [11.10];
•	settlement in the area began after 1819 – Annexure A to Attachment F1 at [1.3];
•	various historical sources, excerpts of which are provided and which date as early as 1826, speak to the Wonnarua People as being the Indigenous persons occupying the area at the time of settlement or first contact – Annexure A to Attachment F1 at [1.3]–[1.5], [2.1]–[2.2], [3.7] and [4.6]–[4.7];
•	the Wonnarua People comprise a number of smaller social groupings who were distinguishable according to their association with particular localised territorial bounds – the early settlers referred to the local group comprising the predecessors of the PCWP as the ‘Plains Blacks’ – Annexure A to Attachment F1 at [1.1], [4.2];
•	in 1827 and 1834, [name deleted], the Justice of the Peace at Patricks Plains, recorded the Plains Blacks as comprising a group of 17 men and 29 women and children, and that the group shared a boundary with the local Wonnarua group known as the Kinkyne or Hungary Hill tribe – Annexure A to Attachment F1 at [4.6] and [4.7];
•	claimants speak of the way in which their predecessors told them stories about the ‘old people’, and how those persons passed certain knowledge, including spiritual knowledge and stories, down to the claimants’ predecessors – this includes stories of interactions between the old people and early settlers in the area – Attachment F4 at [25] and [26], [35];
•	a historical source of 1838 reports that the Wonnarua People travelled across the application area in order to engage in joint actions and meetings with other groups – Annexure A to Attachment F1 at [8.3];
•	European settlement in the Hunter Valley impacted heavily on the Wonnarua People, including massacres and outbreaks of disease – Annexure A to Attachment F1 at [14.1] and [14.3];
•	descendants of the apical ancestors continued to live in the application area and still do so today – the claimants and their predecessors inherited a wide range of information about the application area – Annexure A to Attachment F1 at [14.5]; Attachment F at [3];
•	claimants today are actively involved in cultural heritage activities on the application area – they understand this to be in accordance with their responsibilities to care for and protect their country – Annexure A to Attachment F1 at [8.8];
•	claimants continue to live in the application area and carry out a range of traditional activities on the area – Attachment F at [9].

[114]	Regarding the apical ancestors of the PCWP, the factual basis material provides that Emily, the mother of Henry Taggart was born in approximately 1840, that she gave birth to her son in about 1859 around the Howes Valley near Broke or Wollombi, and that she died in 1941 in the District of Singleton. Emily is asserted as having worked as a domestic with the [name deleted] family in the Sandy Hollow area, while her son was taken to the Putty and Broke areas to be raised by the [name deleted] family.
[115]	The factual basis provides that Mary Shoe was born in approximately 1800 in the Singleton District. She had a child, Matilda Hughes, in 1843 in or around Scone.
My consideration – s 190B(5)(a)
[116]	The focus of my consideration for the purposes of s 190B(5)(a) is whether the factual basis is sufficient to support an assertion that the native title claim group have, and the predecessors of those persons had, an association with the application area. 
[117]	Before I begin this task, I consider it appropriate that I set out my understanding of particular matters that arise within the material. Firstly, the claim before me is made by the PCWP. The material asserts that the PCWP are a smaller social grouping of the Wonnarua People, who were distinguishable from that wider group by way of their rights and interests in the specific lands and waters of the application area. These rights and interests were inherited by the group through their biological descent from ancestors who had occupied and owned the area since time immemorial – see Annexure A to Attachment F1 at [5.2].
[118]	While I understand the material to assert that the PCWP share common laws and customs with the Wonnarua People, I consider that it clearly asserts the PCWP to be the distinct group of persons who are able to speak for, and who have responsibilities in relation to, the application area, pursuant to those laws and customs – Annexure A to Attachment F1 at [6.1]. 
[119]	I note that a large amount of the factual basis material in support of the requirement at s 190B(5)(a) speaks to the association of the ‘Wonnarua People’ with the area at the time of settlement. The material clearly asserts, however, that the predecessors of the PCWP were identified in those early stages of settlement as the ‘Plains Blacks’, and that this was the particular local group of the Wonnarua who were associated with the application area. Noting these assertions within the material, I consider it reasonable that I can infer, that where the material (such as an excerpt from a historical source appearing within the material) speaks to an association of the ‘Wonnarua People’ with a location that falls within the external boundary of the application area, that the material is, in fact, speaking to an association of the Plains Blacks (being the predecessors of the native title claim group), with the area.
[120]	The first matter I have turned to consider, therefore, is whether the factual basis is sufficient to support an assertion of an association between the predecessors of the PCWP and the area at the time of sovereignty or European settlement. The material asserts European settlement in the area to have occurred in the early 1820s, as the Hunter Valley was opened up to farming. The material provides that PCWP apical ancestor Mary Shoe was born prior to this time, in approximately 1800, and consequently, I have inferred that the material asserts Mary to have been one of the predecessors of the PCWP inhabiting the area at the time settlement was taking place. 
[121]	Apical ancestor Emily was born in approximately 1840, some 20 years following the initial stages of settlement. Both ancestors are asserted within the material to have been born in locations within the application area, and are further asserted within the material as being present in or associated with certain other locations within the application area at specific points in their lives, such as the birth of their children, and the time of their passing away. These places include Singleton, Scone, Broke, Wollombi and Sandy Hollow, all of which I have located well within the external boundary of the application area.
[122]	In addition to this, I note that the factual basis includes specific information about another two members of the Plains Blacks, whom I understand to be the predecessors of the PCWP inhabiting the area at around the time of settlement. The material speaks of ‘Bit of Bread’, encountered by [name deleted], and recorded by him in 1825 as a member of the Plains Blacks who inhabited the middle Hunter Valley region – Annexure A to Attachment F1 at [8.2]. The material also refers to a claimant being taught about [name deleted], a member of the Plains Blacks who was a guide and tracker for early settlers in the area. [name deleted] is asserted as having refused to take early European settlers in the area beyond the Liverpool Ranges, as this was no longer his country – Attachment F4 at [35].
[123]	In this way, I have formed the view that the factual basis is sufficient to support an assertion that the predecessors of the PCWP were associated with the area at around the time European settlement occurred. There are numerous historical sources set out within the material which date as early as 1825, referring to the Wonnarua People occupying an area including the middle Hunter Valley and tributaries of the Hunter River, up to the Liverpool Ranges, Muswellbrook, Singleton, and down as far as Maitland and Wollombi. I have considered these locations and am of the view that this accords with the boundaries of the application area described in Attachments B and C to Schedules B and C of the application before me.  
[124]	In addition to this, the apical ancestors of the PCWP are identified as persons who were present in the area prior to the time at which settlement occurred (namely, apical ancestor, Mary Shoe), or persons who were born in the area shortly after the initial settlement phase in the middle Hunter Valley region (namely, apical ancestor, Emily). Further, the material speaks to and identifies other members of the Plains Blacks who are asserted as being present in the area at around the time settlement was occurring.
[125]	Regarding whether the factual basis is sufficient to support an assertion of an association between the claim group as a whole and the area, presently, I consider that there is various material that speaks to such an association. This includes affidavits from members of the group in which they speak of time they have spent at certain places within the application area. One claimant states that:
As a young boy I would avoid school. I hardly turned up from a very young age and left school as soon as I was allowed which was when I was 14 and 9 months. I would always be in the bush as my father owned a property of more than 1000 acres known as Mount Olive. This property was situated 14 miles north of Singleton along Bridgman Road. In those early years I would run around the bush with my [name deleted] and his first cousin [name deleted]. [Name deleted] was a dingo bounty hunter and Aboriginal man. He had been taught by my non-Aboriginal grandfather [name deleted] to call a dingo and track them. My grandfather had been taught this skill as a young man by [name deleted] the Aboriginal father of his eventual wife, [name deleted]. It was the expert knowledge to howl and call in dingoes that enabled my grandfather to make enough money from dingo bounties to purchase Mt Olive which my father inherited and lived on for all but the last ailing years of his life – Annexure B at Attachment F1 at [2]. 
[126]	And another claimant states:
Despite the prejudice my family has always identified as Wonnarua of the Plains Clan with specific ancestral links to our clan lands about Ravensworth, Camberwell, Bridgman, Singleton, Glendon, Carrowbrook, Mt Royal, and Goorangoola. We have always valued, and respected our land, our heritage and our identity. For me and my family the land is not ours but a gift given to us to use because everything comes from the land. We have been brought up and taught to believe that we were fashioned out of the earth and to the earth we will return. When [names deleted] (my two youngest children) were about eight I took them for a drive to show them about Glennies Creek where I grew up, rode horses and motorbikes and went fishing. When I got there I just gasped and went “Aargh” because there was nothing to see. It was all gone. There was a big hole from mining. I sat there and tears rolled down my cheeks. I couldn’t show my children anything. It was like a part of me had been deleted. It was important to my mother and it is important to me that we look after our special places and teach the children about the ecological and cultural heritage values of my Wonnarua Country – Annexure C to Attachment F1 at [7]. 
[127]	And another claimant states:
Stories relayed to me by my grandparents of the times they had spent in Wonnarua Country – and of the things they were told by their parents – were often shared during picnics held at a lovely spot along Glennies Creek up on Old Carrowbrook Road near the home of the Franks family. It was known as the “Blacks camp”. Mum hated that the white man had called it, as it was so pretty. It had a good swimming hole but it was too deep and mum wouldn’t let [name deleted] and I swim in it… 
During those picnics we would listen to stories about the creation of Wonnarua country and about those special places and/or beings such as Biami, Tidilick the Frog and Burning Mountain that were of and from the beginning of time. I was told that a cave at Milbrodale was painted with an image of Biami. He was painted there to welcome people to the territory of the Plains Clans and, with his arms outstretched facing east northeast, he was there as a guardian and protector of our people and our clan country. I was also told of the ceremonial tracks that linked sites such as Biami Cave, the corroboree sites at Bulga and the old home spaces of my people up near Mt Olive and Glennies Creek. I was also told that there were many of the sites that women (females) should never go near. Burning Mountain which is up near Wingen, at the northern end of the territory of the Plains Clans of the Wonnarua, was one such place that my mum would never go near or pass by for fear that she would anger Biami. She would avoid driving up that way to Tamworth so that she was never in sight of this mountain – Annexure C to Attachment F1 at [15] and [16]. 
[128]	The material of this nature within the application includes references to numerous places. I have considered the location of these places and note that they fall across the entirety of the application area. The statements made by claimants also refer to various families who comprise the PCWP native title claim group, including the Franks, the Lesters, and the [name deleted]. Claimants speak of visiting members of these families at their homes within the application area. In light of this material, I have formed the view that the factual basis is sufficient to support an assertion that the claim group as a whole has an association with the application area. 
[129]	Turning then, to whether the factual basis is sufficient to support an assertion that there has been an association between the members of the group and the area over the period since settlement, I consider that the material clearly speaks to such an association. For example, specific information about the descendants of the apical ancestors and places they were associated with is set out within the material. The material asserts that Henry Taggart, the son of apical ancestor Emily, was born in Broke in 1849, and raised by the [name deleted] family around the Broke and Putty areas. One claimant describes the way her grandfather, Henry’s eldest son, told her stories of the frequent horse rides up to Sandy Hollow that Henry would make to visit his mother. The claimant explains that her grandfather would go as a child with his father to visit Emily – Annexure D to Attachment F1 at [4] and [5]. 
[130]	The claimant describes the tracks they would travel ‘from Broke back through Jerry’s Plains, Denman and on to Sandy Hollow’. I note that this route traverses roughly from east to west of the middle of the application area. The claimant states she was told that sometimes they would come back via Muswellbrook, Ravensworth and onto Mount Olive and Singleton to see family. The claimant also describes how they would stop to catch-up with ‘people from his mob’ along the way – Annexure D to Attachment F1 at [5]. Again, from my own research, I understand that this route remains within, and runs across roughly from west to east of the application area. It is also asserted that Henry spent time in his youth around significant sites of the PCWP, including gathering sites and ceremonial tracks, at Warkworth, Broke, Jerry’s Plains and Bulga – see Annexure D to Attachment F1 at [6]. Through my own research I have confirmed that all of these locations fall within the application area.
[131]	Further information in support of an asserted association of the predecessors of the group with the area over the period since sovereignty is given by another claimant regarding the daughter of apical ancestor Mary Shoe, Matilda Hughes. Matilda was born in the northern part of the application area, in Scone, in 1843. She married [name deleted] in Fallbrook in 1856 and they had a child in Sydenham in 1858 near Singleton. One claimant states that he was told by his father that Matilda was buried on the application area, and that his father showed him this site – Annexure B to Attachment F1 at [1]. Similar details regarding the association of Matilda’s children and grandchildren with places within the application area boundaries are also given within the material.
[132]	In addition to this, I have before me, at Annexure A to Attachment F1, a family tree for the descendants of apical ancestor Mary Shoe. This family tree includes details of birth places, places of marriage and places of death for each descendant. Places named include Sydenham, Singleton, Scone, Fallbrook, Patricks Plains, Mount Olive, St Clair, Bridgman, Muswellbrook, Denman, Redbourneberry, Carrowbrook, Glennies Creek and Broke. Again, these places are all within the application area. From this information, it is my understanding that all of the families descended from Mary have continued to inhabit the application area. The Lester family of the PCWP is asserted as having left the area and moved to Sydney in the 1920s, however they were able to maintain their connection to their traditional country through regular visits and through the retelling of stories of the old people and the places they had spent time – Annexure B to Attachment F1 at [23].
[133]	In addition to the material of this nature, it is clear from the statements made by claimants that they have a thorough knowledge of each of the persons comprising the intervening generations of their predecessors back to settlement. They share stories of these persons and details of those places with which they were associated – see for example Annexure C to Attachment F1 at [8]. The claimants also express their understanding of their rights and interests in the application area arising from the fact that it was the country of their parents and grandparents – see for example Annexure C to Attachment F1 at [12] and [13]. 
[134]	In light of all of the material set out above, I have formed the view that the factual basis is sufficient to support an assertion that the predecessors of the native title claim group had an association with the particular land and waters of the application area. The material speaks to those persons in the intervening generations, including information about the particular places they spent time, and stories of trips they made across the application area. Claimants’ statements suggest they have a thorough knowledge of these stories, and it is clear from the material that these stories have been passed down to them by their parents and grandparents.   
[135]	I consider that the material before me regarding the assertion at s 190B(5)(a) is of a relatively detailed nature. There is information that speaks to an association of the members of the claim group today, their predecessors over the period since settlement, and the PCWP or the ‘Plains Blacks’ at settlement, with various locations across the application area. My own reference to mapping data regarding all of the places named within the material, in my view, allows me to consider that the factual basis is sufficient in supporting an assertion of an association of the group and its predecessors with the entirety of the application area. I also consider that there is information that speaks to both a spiritual and physical association of the group and their predecessors with the area. Consequently, it is my view that the material consists of more than broad statements, and that it has geographical particularity to the land and waters of the application area.
[136]	I am, therefore, satisfied that the factual basis is sufficient to support an assertion that the native title claim group have, and the predecessors of those persons had, an association with the area. The requirement at s 190B(5)(a) is met.
Reasons for s 190B(5)(b)
[137]	The assertion at s 190B(5)(b) speaks of traditional laws and customs giving rise to the claim to ‘native title rights and interests’. I consider, therefore, that the definition of that term in s 223(1) is of some relevance in my consideration at this condition. That definition provides that such rights and interests are, ‘possessed under the traditional laws acknowledged, and the traditional customs observed’, by the native title claim group – see s 223(1)(a). 
[138]	Noting the similarity in terms of this provision and the assertion at s 190B(5)(b), I have turned my mind to the leading authority in relation to the definition of ‘traditional laws and customs’, namely the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta). In that decision, the High Court held that the term ‘traditional’ laws and customs, in the context of the Act, carried two particular elements in its meaning. Firstly, the origins of the content of the laws and customs concerned must be rooted in the normative rules of the Aboriginal or Torres Strait Islander society in existence before sovereignty – at [46] and [79]. Secondly, the acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since that time – at [87] and [47].  
[139]	In Gudjala 2007, again, in an aspect of the decision not criticised by the Full Court on appeal, Dowsett J set out the principles enunciated in Yorta Yorta (at [26]) and then sought to apply them to the factual basis material provided in the application before him. His Honour held that in relation to the requirement at s 190B(5)(b), the following types of information may be necessary in providing a sufficient factual basis:
•	information about how the laws and customs currently observed have their source in a pre-sovereignty society and have been observed since that time by a continuing society – at [63];
•	information about the existence at European settlement of a society of people living according to a system of identifiable laws and customs, having a normative content – at [65]; and
•	an explanation of the link between the claim group described in the application and the area covered by the application, which process may involve the identification of a link between the apical ancestors by whom the group is defined and any society existing at sovereignty – at [66].
 
[140]	In Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009), Dowsett J again considered the nature of the material required to satisfy the condition at s 190B(5)(b), and held that the following types of information may be necessary:
•	information identifying who the persons who acknowledged and observed the pre-sovereignty laws and customs were – at [37] and [52]; 
•	an explanation of how the current laws and customs of the claim group can be said to be traditional (that is, the laws and customs of a pre-sovereignty society relating to rights and interests in land and waters), and more than a mere assertion that such laws and customs are traditional – at [52], [53] and [72]; and
•	details of the claim group’s acknowledgement and observance of those traditional laws and customs pertaining to the claim area – at [74].
  
The applicant’s factual basis material – s 190B(5)(b)
[141]	I have summarised the applicant’s factual basis material relevant to the assertion at s 190B(5)(b) below:
•	the pre-sovereignty laws and customs of the Wonnarua People conferred rights on particular localised groups to particular areas, including rights to speak for country and to use the resources of that country – Attachment F at [4];
•	the PCWP identify as the descendants of the Wonnarua Peoples who occupied a tract of country that encompassed the middle reaches of the Hunter River and its tributaries around Singleton (Patricks Plains) – Attachment F at [5];
•	historical records indicate a broad society known as the Wonnarua People, which was comprised of smaller territorial groups – the ancestors of the PCWP were known at the time of settlement as the ‘Plains Blacks’ – Annexure A to Attachment F1 at [4.5];
•	a historical source dated 1896 concludes that Wonnarua boundaries were well-defined and clearly understood by the group, and by neighbouring groups – Annexure A to Attachment F1 at [4.5]; 
•	James Glennie, Justice of the Peace of Singleton, recorded in the late 1820s that the Plains Blacks comprised 17 men and 29 women and children – Annexure A to Attachment F1 at [4.6];
•	Mary Shoe and Emily, the apical ancestors of the claim group are understood as being members of the Plains Blacks from 1800 onwards – Annexure A to Attachment F1 at [1.2];
•	[name deleted] and [name deleted] are similarly understood by claimants as being members of the Plains Blacks during the time at which settlement was occurring – Annexure A to Attachment F1 at [8.2] and Attachment F4 at [35]; 
•	Miller in 1886 made a number of observations about the laws and customs of the Wonnarua People occupying the application area, including that important decisions were made by adults or elders of the group, that marriages were extremely exogamous and polygamy prevailed, that young boys became “young men” with certain secret ceremonies, and that youths of both sexes were prohibited from eating certain meats – Annexure A to Attachment F1 at [1.4] and [1.5];
•	Ridley in 1864 observed the Wonnarua as intensely religious and constrained by strictly enforced laws – Annexure A to Attachment F1 at [1.3];
•	the social interactions of the Wonnarua at the time of settlement  were designed to take advantage of the seasonal availability of resources – Annexure A to Attachment F1 at [1.3];
•	Threkheld in 1838 confirmed the distinct character of the Wonnarua language (particularly the Plains Blacks) as compared to the Daruk – Annexure A to Attachment F1 at [2.1];
•	historical records indicate that the predecessors of the PCWP at settlement continued to adhere to traditional laws and customs, despite having European laws forced upon them – Annexure A to Attachment F1 at [8.2];
•	historical records also suggest the predecessors of the PCWP travelled across the application area in order to participate in ceremonies and gatherings with neighbouring groups – Annexure A to Attachment F1 at [8.3] and [8.4];
•	archaeological evidence suggests the predecessors of the PCWP moved in small groups from campsite to campsite, living on local resources, and close to easily accessible water sources – Annexure A to Attachment F1 at [11.2];
•	archaeological evidence points to the use of cave sites within the application area for ceremonial purposes – Annexure A to Attachment F1 at [12.7];   
•	traditional law and custom has been passed down by traditional teaching methods through generation after generation of PCWP, in relation to the application area – Attachment F at [7];
•	the PCWP have continued to acknowledge and observe the traditional laws and customs of the Wonnarua People, made possible by living on the area and undertaking a range of activities on it, including using its resources – Attachment F at [9];
•	claimants express an understanding that pursuant to their laws and customs, the application area was the land of their parents, grandparents and great grandparents – Annexure A to Attachment F1 at [5.2];
•	members of the claim group exercise rights and responsibilities in relation to the application area, derived from their identification as the owners of that country under customary law – Annexure A to Attachment F1 at [8.7];
•	members of the claim group assert an authority to be involved in decision-making regarding the protection and management of their traditional lands on the basis of their ancestors’ connection to the area, and their continued connection to the area – Annexure A to Attachment F1 at [6.1];
•	recruitment to the native title claim group is by way of cognatic descent, and this is a matter determined by Wonnarua People according to their traditional laws and customs – Annexure A to Attachment F1 at [6.1];
•	Wonnarua religious beliefs describe the creation of the landscape of the application area and link the landscape with the ancestors of the group – Annexure A to Attachment F1 at [7.1];
•	beliefs include that the activities of creative beings and ancestors of long ago transformed the world and laid down the pattern of life and the laws of the Wonnarua People – Annexure A to Attachment F1 at [7.1];
•	stories of these creation events and associated sites are the cultural property of the claimants that has been passed down to them through the generations of PWCP – elder members of the claim group were told of these creation events by their parents, grandparents and other kin Annexure A to Attachment F1 at [7.1];
•	these creation stories and the ancestral or spiritual beings associated with these stories are depicted in cave paintings across the application area – Annexure A to Attachment F1 at [7.5];
•	initiation sites, burial places, including the final resting place of known ancestors, and massacre sites are important symbols to the claimants and are expressions of their connection with their past and their country – Annexure A to Attachment F1 at [7.3]; 
•	Wonnarua laws and customs place on members of the native title claim group the custodial responsibility to ‘look after country’, and to maintain and protect important places – Annexure A to Attachment F1 at [7.4];
•	today, there are social sanctions which operate to regulate the behaviour of the claim group and other Aboriginal people regarding cultural heritage sites – claimants express an understanding that only Wonnarua People can walk on Wonnarua land – Annexure A to Attachment F1 at [10.2]. 

[142]	In addition to this, I consider that statements made by claimants throughout the material speak to aspects of traditional laws and customs as relevant to the assertion at s 190B(5)(b). For example, regarding the right asserted by the claimants to speak for country pursuant to their laws and customs, one claimant states that:
Pop would often go up into the bush and didn’t come back for days. Sometimes too my dad and brother would go up to Mt Royal with Pop on the horses. They would leave in the morning and come back only at sunset. During these trips my dad and brother were taught many things about Wonnarua country by my Pop including the ways of the old people, and also about men’s business, although this was mostly for my brother [name deleted] to hear listen and learn. [Name deleted] still says that Pop didn’t tell him all that he knew as talking about the old ways to the young ones was looked down upon. 
It was important for my Pop to always be in Wonnarua Country. He always stipulated that if you weren’t born in Wonnarua Country you weren’t/couldn’t be classed as Wonnarua. Also, if you left the country for more than a year, depending on the reasons why you had left, you were most likely to be accepted back into the Plains Clans but you shouldn’t/couldn’t/wouldn’t ever be able to speak with authority about the laws and customs of the people – Annexure C to Attachment F1 at [12] to [13]. 
[143]	A claimant refers to laws and customs surrounding the position of elders or Heads of Family in the following way:
As my brother [name deleted] explains it, within our Wonnarua society today – and in the past – there are both men and women Elders who have specific knowledge and/or carriage of certain tasks that often relate to “men’s” or “women’s” business only. However, when a broader issue arises within the community both the men and women Elders come together to discuss it and help make decisions. When a decision is made, it is always outlined to the broader group by the chosen Head of Family. It is for this reason, and in this fashion, that my brother accepts me as the Head of our Family. These are the lores and customs that have been handed down through the generations and they are still in practice and still strong in our hearts today. I am proud to be Head of my Family and I am proud of the trust and support that my brother, cousins and children provide me to fulfil this role – Annexure C to Attachment F1 at [4]. 
[144]	Another claimant explains her knowledge of her ancestors and their acknowledgement and observance of laws and customs in relation to their traditional country:
My great-grandfather Henry was able to learn, practice and teach the Wonnarua lores and customs to his sons and daughters because although he was raised away from his mother he was fortunate enough to be brought up in the Broke-Bulga-Putty-Jerrys Plains area where many of the important gathering sites and ceremonial tracks of the Plains Clan occur. He was a young boy down in that area for example just ten or so years after 1852 when the last big inter-tribal ceremony was reportedly held at the Bulga Bora ground. My great-grandfather spent a lot of time in and around the special places of the wider PCWP clan group at Warkworth, Broke, Jerry’s Plains and Bulga. He would take my grandfather and his brothers out into the scrub down that way and teach them how to survive on the tucker that was to be found there – Annexure D to Attachment F1 at [6].
[145]	The following statement comes from a claimant describing his knowledge of the routes taken by his predecessors across the application area, in accordance with ceremonial tracks under Wonnarua laws and customs:
I was told that the creek formed the only route which I should use to travel through the country of my people. It was the track which my family would use to travel to ceremonies and to move across country to get food. As we walked along my Uncle and Cousin would talk and I would listen and learn… - Annexure B to Attachment F1 at [10].
[146]	  That claimant also explains how these ceremonial tracks were established, stating:
Biami [the creator spirit] then turned his attention onto the lands in our country and to help people move around the lands he gave them ceremonial tracks and taught them how to walk through the land and tell the stories of our people. He said ceremonial tracks will be used to teach what is needed to live in your lands.
Many of these ceremonial tracks are still in place today. One ceremonial track runs from the apex of the Barrington Tops right back to Yango. This track moves down out of Barrington Tops, following Glennies Creek, it passes through Carrowbrook, down to Falbrook and then it continues all the way to Jerrys Plains, Warkworth, Bulga and to Yango. When walking along this track our people would tell this story of how the land was made and of what was expected of you to live in our lands to ensure that the story was told to all in the lands.
[147]	The knowledge held by claimants regarding ceremonies undertaken by their predecessors pursuant to the laws and customs of the group is shared by one claimant as follows:
Across the road from this burial site I was told that a ceremony was conducted where boys would use gold ochre sourced from the Bulga area. The boys would stay there for three (3) days learning how to use the ‘she oaks’ that grow along the creek. Bark from the ‘she oaks’ would be crushed and placed a little upstream and allowed to flow with the water down into some small ponds that had been made using the rocks in the creek. When the crushed she oak bark reached these ponds it leached enough sap into the water to affect the fish. All the perch, sprats, mud gudgeons, eels, catfish and mullet that were in the ponds at this time would float to the surface allowing them to be easily caught. I was also told they would use the she oak branches as I had done to catch yabbies.
After being in the area for about three days I was told that these boys would then move off upstream towards the stone ceremonial site at Sydenham to continue their lessons. The boys would then make their way to Bowman’s creek and continue downstream towards the Hunter River where they would then follow along the sandy creek banks of the Hunter eventually to arrive at a big bora ground near the present village of Warkworth where large ceremonies would take place – Annexure B to Attachment F1 at [15] and [16].
[148]	A claimant explains his understanding of the role of the creation spirits in the design and function of the environment around him:
…Brush turkeys build a mound for their eggs and the turkey will always stay with the nest moving and flicking the material around. [Name deleted] told me that the turkey did this because in the early days when Biami was making the land he made a turkey and when this turkey was let go in the country he started running all over the place making noise and upsetting everyone. To stop this Biami made him unable to fly and kept him busy building a big nest on the ground so all the other animals could settle in and have some peace and quiet. [name deleted] also said that when this happened to the turkey Biami also turned his legs yellow so all the other animal [sic] could see that his legs gave him the power to run fast – Annexure B to Attachment F1 at [20].  
[149]	 I note that the above statements provide merely an example of the nature of the information within the factual basis material, however they do not reflect the full extent of that material. In my consideration below, I have had regard to all of the relevant material contained in the application before me.
My consideration – s 190B(5)(b)
[150]	My understanding of the law surrounding the requirement at s 190B(5)(b) is that the starting point is the identification of the existence of a society of people in the area, at European settlement, living according to identifiable laws and customs, having a normative content – Gudjala 2007 at [65]. Similarly, the material must identify those persons who acknowledged and observed those laws and customs, namely the persons who comprised the relevant society – Gudjala 2009 at [37]. 
[151]	The material asserts European settlement to have occurred in the area in the 1820s. Historical sources dated in the first few decades following settlement, referred to in the material, clearly assert the presence of the Wonnarua People in the application area. These sources acknowledge that there was a wider Wonnarua group that was comprised of smaller localised territorial groups, one of which was the Plains Blacks. The material asserts that the PCWP are the contemporary descendants of the Plains Blacks who occupied the area at the time of European settlement. My understanding, therefore, is that it is the Plains Blacks who are asserted as being the relevant society at sovereignty, or settlement, for the purposes of s 190B(5)(b). 
[152]	Regarding the laws and customs of a normative content acknowledged and observed by the group, as above, the material asserts that pursuant to the laws and customs of the Wonnarua People, the Plains Blacks had specific native title rights and interests in (that is, they considered themselves the rightful owners of), the land and waters of the application area. In this way, the Plains Blacks were the only ones who could speak for that country, and freely use the resources of the area. The material asserts that the boundaries of the application area, and the other adjacent areas occupied by the different localised groups were clearly understood and enforced by the Wonnarua People.
[153]	It is my understanding of the material that while the Plains Blacks could be distinguished from the wider Wonnarua People by their specific rights and obligations in relation to the land and waters of the application area, the laws and customs acknowledged and observed by the group at settlement were in fact shared with the wider Wonnarua society. It is pursuant to these laws and customs that the Plains Blacks possessed those specific rights and interests, and I understand, therefore, that it is these laws and customs that give rise to the claim to native title by the native title claim group. 
[154]	Further information about the laws and customs of the society at settlement include asserted facts that young boys became men through secret initiation ceremonies, that the group had strong spiritual affiliations with their country (evidence of which appears in cave paintings in the area), that the group travelled across the application area to partake in gatherings and ceremonies with neighbouring groups, and that decisions were made by elders of the group, namely persons with the requisite knowledge and authority regarding decision-making for country. The material further provides that the society at settlement continued to adhere to customary law despite European laws being forced upon those persons, and that archaeological evidence suggests the Indigenous persons occupying the area prior to settlement moved about the application area in small groups, camping close to water sources and living on local resources. 
[155]	As to the persons who comprised that society, as set out in my reasons above at s 190B(5)(a), apical ancestor Mary Shoe was born in 1800 and so would have occupied the application area at settlement. I consider, therefore, that the material asserts that Mary Shoe was, in fact, a member of the Plains Blacks, occupying the area at the time of settlement. Noting that apical ancestor Emily was born in the area in 1840 it is also my understanding that the material asserts Emily to have been born into the Plains Blacks society approximately 20 years following initial settlement of the area.
[156]	In addition to this, the material asserts that the persons comprising the Plains Blacks were specifically identified by James Glennie in blanket lists recorded in 1827 and 1834, and that the group included 17 men and 29 women and children. Further members of the Plains Blacks are spoken of within the material, including the individuals named as [name deleted], and [name deleted]. [Name deleted] is asserted as being recorded as a member of the Plains Blacks in 1827, hence I have inferred the material to assert that he was part of the society around the time of settlement. There is no date given of predecessor, [name deleted], however, noting that he was a tracker and guide for the Europeans, I consider that I can infer that he would have been part of the Plains Blacks society around the time of early settlement when the area was still being explored and traversed by settlers. The material provides that [name deleted] refused to take the Europeans beyond the Liverpool Ranges, as this was no longer his country. This, in my view, is sufficient to support an assertion that he was such a person bound by the laws and customs of the society that strictly enforced the territorial bounds of localised groups.
[157]	In light of this information within the material before me, I have formed the view that the factual basis is sufficient to support an assertion that there was, at European settlement, a society of people, living according to identifiable laws and customs, having a normative content. I also consider that the factual basis is sufficient in supporting an assertion of the link between the apical ancestors of the group and that society, namely that they were persons who were part of that society at settlement, or were born into that society in the few decades following settlement. The link between the claim group and the claim area is, therefore, that the claim group comprises the contemporary descendants of the Plains Blacks society, being the persons with specific rights and interests in the land and waters of the application area at settlement. I am of the view that the factual basis is sufficient in supporting this assertion.
[158]	The statements made by various members of the native title claim group that are contained in the application before me, give considerable detail of the laws and customs acknowledged and observed by the native title claim group today. I now turn to consider whether the factual basis is sufficient to support an assertion that those laws and customs are, in fact, ‘traditional’.
[159]	I note there are a number of similarities between the laws and customs asserted by the material as being acknowledged and observed by the society at settlement, and the laws and customs asserted as currently acknowledged and observed by the members of the group today. For example, statements made by claimants suggest that the importance of elders or ‘Heads of Family’ continues to be of strong significance in facilitating decision-making about country by the members of the claim group – see [143] above. Similarly, the material asserts that sites within the application area that are considered to be of significance, and hence requiring protection, by the claimants today, are those same sites that were used for special purposes by their ancestors, including burial sites and ceremonial sites – see excerpt at [147] above. This statement by a claimant, in my view, also demonstrates the way in which claimants possess a detailed knowledge of their predecessors’ use of those sites, and interaction with those sites over the period since settlement. 
[160]	Another example of a similarity between the laws and customs of the society at settlement and the laws and customs of the group today, is the strong spirituality asserted by the material that underlies both the claimants, and the claimants’ predecessors at settlement, understanding of the way in which their country was formed and created. Members of the Plains Blacks occupying the area at settlement recorded these spiritual and creation stories in cave paintings, and today claimants continue to express this understanding through oral story-telling – see excerpt at [146]. Both the claimants’ stories and the stories told by their predecessors prior to settlement involve the same spiritual characters or beings, for example, the creation spirit Biami. There is also information I consider to support an assertion of the way in which that spiritual understanding of the landscape dictates social norms and behaviours – see for example Annexure C to Attachment F1 at [17]. 
[161]	I consider that the material before me supports an assertion that claimants today possess a detailed knowledge of their predecessors’ acknowledgement and observance of their laws and customs in relation to the application area, over the period since settlement. For example, one claimant retells the way in which young boys travelled across the application area, following ceremonial tracks established by Biami, gathering ochre at one site and then moving onwards to a big ceremonial site or bora ground where specific ceremonies would occur – see excerpt at [147] above. It is my understanding that this knowledge was passed to the claimant by his uncle, and speaks to a time prior to the impacts of settlement. Another claimant describes the time that her great grandfather, the son of apical ancestor Emily, spent at significant sites within the application area as a young boy growing up – see excerpt at [144] above. 
[162]	Further statements made in the application by claimants all indicate, in my view, that those persons possess an understanding of the persons who comprised the intervening generations back to the PCWP apical ancestors. Claimants are able to name each of the individuals comprising the generations between themselves and the apical ancestors in the area around the time of settlement, and express their knowledge of certain events within those persons’ lives – see for example Annexure B to Attachment F1 at [1].
[163]	I consider that claimants’ statements within the material support an assertion of a strong sense of responsibility in relation to protecting places of importance within the application area – see for example Annexure C to Attachment F1 at [7]. The material asserts that this sense of responsibility, and the authority to speak for and make decisions about country is on the basis of their ancestors’ connection to the land and waters of the application area. In the same way, the material asserts that these obligations to country have been handed down to the claimants by their predecessors. In my view, therefore, the material asserts that caring for country, and maintenance and protection of important places within country, is another aspect of the laws and customs of the claim group that is derived from those laws and customs acknowledged and observed by the claimants’ predecessors at settlement.
[164]	In addition to those similarities noted above, a particular aspect of the ‘traditional’ laws and customs asserted within the factual basis is the way in which such laws and customs have been handed down through the generations from the predecessors of the group at settlement, to the members of the group today. I consider statements made by claimants clearly support this asserted pattern of teaching, and that it has taken place in accordance with and pursuant to the group’s laws and customs. These statements refer to this pattern of teaching being carried out by the ‘old people’ generally, while out on country, but also refer by name to various predecessors who were taught, and who undertook to teach, their children and grandchildren whilst on country – see for example excerpts at [144], [145] and [146]. 
[165]	This statement by a claimant describes the way in which this traditional method of passing on cultural knowledge took place:
Stories relayed to me by my grandparents of the times they had spent in Wonnarua Country – and of the things they were taught by their parents – were often shared during picnics held at a lovely spot along Glennies Creek up on Old Carrowbrook Road near the home of the Franks family… During these picnics we would listen to stories about the creation of Wonnarua country and about those special places and/or beings such as Biami, Tidilick the Frog and Burning Mountain that were of and from the beginning of time. I was told that a cave at Milbrodale was painted with an image of Biami. He was painted there to welcome people to the territory of the Plains Clans and, with his arms outstretched facing east northeast, he was there as guardian and protector of our people and our clan country… - Annexure C to Attachment F1 at [16].  
[166]	Having had regard to all of this information, I have formed the view that the factual basis is sufficient to support an assertion of traditional laws and customs. Firstly, I note the similarities between the laws and customs asserted by the material as acknowledged and observed by the claim group today, and those laws and customs acknowledged and observed by the claimants’ predecessors at settlement. Secondly, I note the thorough knowledge asserted by the material as being possessed by the claimants regarding those persons who comprise the intervening generations back to settlement, and the way in which those predecessors acknowledged and observed laws and customs in relation to the application area. Thirdly, I note the clear assertion of traditional methods of teaching whereby members of the claim group and their predecessors were taught, on country, about the laws and customs of the group in relation to their country, and continue to pass that knowledge on in accordance with traditional teaching practices. 
[167]	It is my view, therefore, that the factual basis is sufficient to support an assertion that there has been little change in the laws and customs acknowledged and observed by the group over the period since settlement, such that the laws and customs of the PCWP today are, in fact, rooted in the laws and customs of a society at settlement. 
[168]	I consider that I can be satisfied, therefore, that the factual basis is sufficient to support an assertion that there exist traditional laws acknowledged, and traditional customs observed, by the native title claim group that give rise to the claim to native title.
[169]	The requirement at s 190B(5)(b) is met.
Reasons for s 190B(5)(c)
[170]	The reference in the assertion at s 190B(5)(c) to, ‘those laws and customs’, I understand to speak directly to the laws and customs answering the description in s 190B(5)(b) – Martin at [29]. In this way, where the factual basis is not sufficient to support the assertion at s 190B(5)(b), I am of the view that it cannot be found sufficient to satisfy the condition at s 190B(5)(c).
[171]	Noting that the assertion speaks to the way in which a group has continued to hold its native title, it is my view that the requirement at s 190B(5)(c) can be equated with the second element of the meaning of the term ‘traditional laws and customs’ as found by the High Court in Yorta Yorta. That is, that the native title claim group have continued to hold their native title rights and interests by acknowledging and observing the traditional laws and customs of a pre-sovereignty society in a substantially uninterrupted way – Yorta Yorta at [47] and [87].
[172]	In discussing the task at s 190B(5)(c), Dowsett J in Gudjala 2007 indicated that the factual basis may need to address the following:
•	that there was a society that existed at sovereignty that observed traditional laws and customs from which present laws and customs are derived;
•	that there has been continuity in the observance of traditional law and custom going back to sovereignty or at least European settlement – at [82].
 
[173]	 I have already set out in relation to the condition at s 190B(5)(b) above, the reasons for which I am satisfied that the factual basis is sufficient to support an assertion that there was, at settlement, a relevant society acknowledging and observing traditional laws and customs in the application area.  
[174]	As to whether I can be satisfied that the factual basis is sufficient to support a continuity in the acknowledgement and observance of those traditional laws and customs over the period since settlement, there are a number of general assertions within the material that I consider relevant. These include the following:
•	despite the extensive violence suffered by the Wonnarua People as a result of settlement, the ancestors of the PCWP were able to stay on or close to the territory of their forebears – Attachment F at [3];
•	those ancestors and their descendants have continued to occupy the area, and acknowledge and observe traditional laws and customs in relation to the area – Attachment F at [3] and [9];
•	the PCWP have maintained an association with the application area by living on it and undertaking a range of traditional activities upon it – Attachment F at [9]; 
•	knowledge passed onto those predecessors, and which they continued to pass onto successive generations, included knowledge about walking tracks, ceremonial places, and stories regarding the use of resources – Attachment F at [3];
•	laws and customs have been passed down by traditional teaching methods through generation to generation of PCWP to the claim group today – Attachment F at [7].
 
[175]	In addition to this, the material provides greater detail regarding the assertion at s 190B(5)(c) through statements made by claimants. As discussed in relation to the requirement at s 190B(5)(b) above, I am satisfied that this factual basis material is sufficient to support an assertion that there is a traditional practice of teaching whereby the predecessors of the native title claim group spent time out on country with their children and grandchildren, visiting significant and special places, teaching them laws and customs and passing on knowledge about country. Flowing from this, I consider that this material is sufficient to support an assertion that this pattern of teaching allowed for each successive generation to learn and put into practice the laws and customs acknowledged and observed by their immediate predecessors. In this way, I have inferred an assertion within the material that the acknowledgement and observance of these laws and customs has, in fact, been continual. 
[176]	I have also discussed above the reasons for which I am satisfied that the factual basis, particularly the statements made by claimants in the application, is sufficient to support an assertion that the members of the PCWP today possess a detailed knowledge of the persons comprising the intervening generations since the apical ancestors at settlement. This knowledge includes information about the way in which those persons acknowledged and observed laws and customs in relation to their country. The following statement I consider to be an example:
It is also true that Emily was of the Plains Clans of the Wonnarua and I believe that she remained in the Sandy Hollow district for much of her life. Her son Henry was able to keep in contact with her through regular horseback trips up to Sandy Hollow. My grandfather used to tell me about the trips he would make following well known tracks from Broke back through Jerrys Plains, Denman and on to Sandy Hollow when he was a kid to go see his grandma. My grandfather used to tell of how he would get impatient with his Dad on these long rides as he would always stop to have a “chin wag” with people he knew to be from his mob. On these trips they would sometimes come back via Muswellbrook, Ravensworth and on to Mt Olive and Singleton and then on to Broke to catch up with the extended family of the Franks, Smiths and Lester families. My aunties [names deleted] (i.e. Dad’s twin sisters) had a close relationship with [names deleted] from Mt Olive and would meet up with them at least fortnightly. It was well known to me that the Franks were part of our local clan though not immediately blood related. This was most often reinforced when the boys would come into town and bring us fish they had caught and or meat they had slaughtered to share with us. We always acknowledged, respected and had a genuine affection for them as part of our extended clan family – Annexure D to Attachment F1 at [5].
[177]	In light of this material that speaks to each intervening generation of the predecessors of the PCWP back to the apical ancestors at around, or in the decades shortly after settlement, acknowledging and observing laws and customs in relation to the application area, I have formed the view that the material is sufficient in supporting an assertion that laws and customs have been acknowledged and observed by the group and its predecessors in a continual manner, back to the time of settlement. I consider that I can reasonably infer from the material that prior to settlement, over the period since sovereignty in 1788, there is unlikely to have been any substantial interruption to this acknowledgement and observance of traditional laws and customs by the ancestors of the group.
[178]	In addition to this, my view is that both the general assertions in Attachment F regarding the ongoing association of the PCWP with the area, and claimants’ statements support an assertion that the members of the group and their families have, over the period since settlement, continued to inhabit the application area and carry out activities pursuant to their traditional laws and customs in the area. I note that a number of the claim group members have spent their entire lives within the application area, and are able to describe the way in which their parents, grandparents and great grandparents occupied the area.
[179]	In light of the asserted facts of this nature before me, I have formed the view that the system of traditional laws and customs pursuant to which the native title rights and interests claimed by the PCWP are possessed, is one that has ‘had a continuous existence and vitality’ since settlement, and one that has been acknowledged and observed by the group and its predecessors without substantial interruption – see Yorta Yorta at [47] and [87]. I am, therefore, satisfied that the native title claim group have continued to hold their native title in accordance with those traditional laws and customs.  
[180]	The requirement at s 190B(5)(c) is met.
Conclusion
[181]	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.
[182]	The relevant standard for the test at s 190B(6) regarding whether rights and interests can be established, is ‘prima facie’. In Doepel, Mansfield J held that there was no need to depart from the ordinary meaning of the phrase adopted by the High Court in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 – Doepel at [134]. That meaning is, ‘at first sight; on the face of it; as appears at first sight without investigation’.
[183]	In affirming this approach, Mansfield J further held that, ‘if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis’ – at [135].
[184]	I note that there is no requirement that every single one of the rights and interests claimed satisfy the requirement at s 190B(6), and that even where only some of the native title rights and interests can be, prima facie, established, the condition will still be met – Doepel at [16].
[185]	I do consider, however, that in order for a right or interest to be, prima facie, established, it must truly be in the nature of a ‘native title right or interest’. The definition of ‘native title rights and interests’ appears at s 223(1) as follows:
(1)	The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)	the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)	the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)	the rights and interests are recognised by the common law of Australia.   
[186]	Consequently, I am of the view that the rights and interests must be shown to be: possessed under the traditional laws and customs of the group; rights and interests in relation to land or waters, and; rights and interests that have not been extinguished over the entirety of the application area.
[187]	The claimed native title rights and interests that I consider can be prima facie established are identified in my reasons below.
Consideration
Right to exclusive possession
[188]	The nature and substance of a native title right to exclusive possession, and the material that may be required in supporting the existence of such a right, has been considered in a number of decisions of the Courts. The High Court, in Western Australia v Ward [2002] HCA 28 (Ward HC), held that:
…”a core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’”. It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others… - at [88].
[189]	The Federal Court took a similar approach in Sampi v State of Western Australia [2005] FCA 777 (Sampi), where it held that:
…the right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for the land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation – at [1072].
[190]	Regarding the way in which such a right should be understood, in Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths), the Full Court of the Federal Court held that:
…the question whether the native title rights of a given native title claim group include the right to exclude others from the land the subject of their application does not depend upon any formal classification of such rights as usufructuary or proprietary. It depends rather on consideration of what the evidence discloses about their content under traditional law and custom. It is not a necessary condition of the existence of a right of exclusive use and occupation that the evidence discloses rights and interests that “rise significantly above the level of usufructuary rights” – at [71].   
[191]	Further to this, the Full Court provided the following guidance regarding the nature of the material that would be required in establishing a right to exclusive possession:
…It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is “their country”. If control of access flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive… The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation… - at [127].
[192]	I have considered the material in the application before me, and consider that there is information that speaks to a right of exclusive possession. Firstly, I consider that there is information addressing the claimants’ right to ‘speak for country’. An example of this material includes the following statement by a claimant:
It was important for my Pop to always be in Wonnarua Country. He always stipulated that if you weren’t born in Wonnarua Country you weren’t/couldn’t be classed as Wonnarua. Also, if you left the country for more than a year, depending on the reasons why you had left, you were most likely to be accepted back into the Plains Clan but you shouldn’t/couldn’t/wouldn’t ever be able to speak with authority about the lores and customs of the people – Annexure C to Attachment F1 at [13].
[193]	Another example is the following statement by a claim group member:
As a boy at Mt Olive I was taught how to howl or call dingoes in so as to make them come close enough to be able to shoot them like my uncle, father, grandfather and great grandfather before me. [Name deleted], Dad and [name deleted] also taught me all the other things I needed to know about my Country. They taught me about the walking tracks and ceremonial places; about where they were and what they meant and how to read the signs to find my way. All of my elders gave me the knowledge of what it was and is to be Wonnarua and they taught me who could speak for our lands – Annexure B to Attachment F1 at [4].
[194]	From these statements, I understand the material to assert that there is a right to speak for country, held by the members of the claim group, and exercised in accordance with and pursuant to Wonnarua laws and customs. Noting that in both statements above, the claimants refer to this knowledge about speaking for country being passed down to them by their predecessors, in accordance with traditional patterns of teaching asserted elsewhere in the material and discussed in my reasons above at s 190B(5)(b), I consider that the right is supported as one that exists pursuant to the traditional laws and customs of the group.
[195]	It is my view that the references to historical sources addressing the way in which territorial boundaries were strictly adhered to by the predecessors of the PCWP at settlement, and by the neighbouring localised groups, further support a right of the members of the group to exclude others from the land and waters of the application area, held pursuant to their traditional laws and customs – see for example Annexure A to Attachment F1 at [4.5].
[196]	Other material that I consider relevant to a right of exclusive possession includes material that speaks to claimants’ own understanding of the rules and practices surrounding their territorial bounds and how these rules were set down by the creation spirit Biami at the time Wonnarua country was formed. The following statement is an example:
Once the water was in place Biami then started in the land so our people could live. He put the trees in the ground, and then blew his breath to make the wind. This wind pushed out and made the plains. Once the land settled our people were let go into the lands. Biami told all not to cross certain area’s as others would come, the lands that was here was for our people and to look after it. As Biami move [sic] across the lands the trees started to grow. To watch over the trees Biami brought Yarra (Koala). Yarra was told to watch over our people in the campsites and the scrub as Biami would not be able to see them from the sky once the trees had grown. (Our mob was never allowed to harm any Yarra).
[…]
Biami then grew the ranges and the mountain around the Valley and told our people not to cross them as other people would be in those areas and it was their home not ours. As he was building up the Liverpool Ranges some of our people crossed into that area including six (6) men from the one family. Biami saw this and the men were taken. One of the wives started wailing and cried to Biami asking why he would take her man and Biami told her that all were warned. The wife told Biami that she would sit and wait till her man returned. As she sat on a high rock waiting and crying Biami looked down and turned her into stone forever as a warning to all our people. As she was turning to rock one of her tear drops fell from her crying face and set a light a cave and Biami to this day has kept that fire burning. (This is Burning Mountain). This area is known to be the border of our lands in the North. Biami told our people what he had done to the woman and ordered them to use that fire, carry fire sticks and to make fire at all our campsites. He warned all not to cross the ranges or risk what would happen – Annexure B to Attachment F1 at [17(c); 17(g)].  
[197]	From this material, it is my understanding that members of the PCWP have a real understanding of, and belief in, spiritual forces within their country, and that this produces a respect for and fear of such forces, resulting in strict adherence to particular practices and protocols surrounding territorial boundaries by members of the localised sub-groups of the Wonnarua, including the PCWP.
[198]	In my view, the material also indicates that there is a belief amongst members of the group, that they are the owners of the application area, and that they have a responsibility to protect their country and to enforce certain practices and protocols to ensure non-PCWP who come into their country are not harmed by the spiritual forces that inhabit the landscape. I consider the following statement an example of this material:
Usually [name deleted] taught me the rules about these places and how to observe them. She often told me about where women’s places like birthing sites areas and burial places were and taught me how to find your way to one place and how to be able to find your way back. But, I especially remember that Pop told me that when up Milbrodale way I should never visit Biami’s cave. In fact I had not done so until two weeks ago when given the impromptu opportunity I visited this site with Scott Franks, Robert Lester and a friend of ours. Frankly after all these years I was curious about a place I had been told I should not go near. I felt uneasy when I was there but nothing untoward happened immediately. However less than an hour after my visit, the two cars that had transported our visiting party to the site – one with Scott and Rob travelling south home together and the other with my friend travelling north home alone – were involved in two separate car accidents.  No one was injured but both cars could no longer be driven. I believe these incidents occurred to show me how wrong I had been to go to that place. I simply was not meant to go there. My old people have spoken to me and told me again of the importance of keeping all our lores – Annexure C to Attachment F1 at [17].
[199]	My understanding of this statement is that the claimants consider that they are the only ones with the requisite knowledge regarding the correct behaviours to be adopted in relation to their country, and that they possess a real belief that a failure to adhere to these behaviours will result in punishment upon the guilty persons by the spiritual forces in the area.
[200]	In this way, in light of all of the material referred to above, I consider that the material asserts the PCWP native title claim group to be ‘gatekeepers for the purpose of preventing such harm and avoiding injury to the country’, and that the PCWP are the only persons with the requisite authority to speak for that country, on the basis of their on-going and uninterrupted occupation of that country. It is further clear, in my view, that the material asserts the claimants’ current understanding of this right, that it derives from the fact that their ancestors prior to sovereignty were the rightful owners of that area, as affirmed by the creation spirits. In this way, I consider that the right is shown to be one that is held in accordance with the traditional laws and customs of the group.
[201]	The right to exclusive possession is, therefore, prima facie, established.
Right to access the application area
[202]	Noting above that I consider that the right to exclusive possession is, prima facie, established, it flows from this that I consider that the right of the claim group members to access the application area is similarly prima facie established. In my view, a right to exclusive possession necessarily entails a right of the members of the group to access the area.
[203]	I consider that it is clear from the material that the majority of claimants and their predecessors have spent the most part of their lives on the land and waters of the application area, and that despite the effects of settlement, the predecessors of the PCWP and their descendants were able to remain on their traditional country. The following statement by a member of the claim group is an example of this type of material:
I was often allowed to access the lands of many of my neighbours in and around Jerry’s Plains because both me and my family were known in the district from the early days when my father and grandfather helped with the dingo problems in the area. We would always be allowed to go to the creeks and the river to trap fish and to hunt as the locals saw our presence as a good thing for them since whilst we were hunting for “pheasants” and “roos” we would also deal with the now feral dog problem in the area – Annexure B to Attachment F1 at [27]. 
[204]	From historical sources referred to in the material, I consider that the right is one that was possessed by the predecessors of the group at settlement, as it was the PCWP or the Plains Blacks who occupied (and had access to) the application area at the time of sovereignty. Consequently, I consider that the right is one held pursuant to the traditional laws and customs of the group, and that it is, prima facie, established. 
Right to camp
[205]	Again, noting my view above that a right to exclusive possession is prima facie established, it follows that I can also consider that a right to camp on the application area is, prima facie, established. Historical sources referred to suggest the predecessors of the claim group travelled across and camped throughout the application area – see Annexure A to Attachment F1 at [1.3], [3.8] and [4.5]. In addition to this, archaeological evidence from the area is asserted as supporting camping activities carried out by the predecessors of the group prior to sovereignty – see for example Annexure A to Attachment F1 at [11.2] and [11.9].
[206]	In light of the information going to the existence of the right at settlement and even prior to settlement, I consider that the right is one held pursuant to the laws and customs of the native title claim group, and has been passed down to the members of the native title claim group today. In my view this information is sufficient to allow me to consider that the right to camp on the application area is, prima facie, established.
Right to erect shelters
[207]	In considering the substance and content of a right to camp, it is my view that a right to erect shelters is inextricably linked to that right. That is, I consider that I can infer that the content of the right to camp necessarily includes the construction of shelters by the claimants and their predecessors on the application area. Therefore, having considered that the right to camp on the application area is, prima facie, established, it is my view that the material in support of that right also supports a right of the claim group members to erect shelters on the application area. 
[208]	It is clear from the material that claimants and their predecessors have spent considerable amounts of time on country camping, often for extended periods of time – see Annexure A to Attachment F1 at [8.5] and [8.6]. I consider it reasonable to infer, therefore, that the material asserts the construction of shelters went hand-in-hand with these camping trips, necessitated by the claimants’ and their predecessors need for protection from the elements. The material also asserts that various claimants and their predecessors have lived within the application area, in houses owned or rented by those persons, and that they consider it their right to do so in accordance with the traditional rights exercised by their predecessors and ancestors on the area at and prior to settlement. 
[209]	It is my view, therefore, that the material of this nature is sufficient to allow me to consider that a right to erect shelters is, prima facie, established. 
Right to live on the application area
[210]	Noting that I consider that a right claimed by the native title claim group to exclusive possession of the application area is, prima facie, established, in my view it necessarily flows from this that I can consider that a non-exclusive right to live on the application area is also, prima facie, established. Notwithstanding this, there is various information within the application that speaks to a right of the claim group to live on the area. The following statement is an example:
…I would always be in the bush as my father owned a property of more than 1000 acres known as Mt Olive. The property was situated 14 miles north of Singleton along Bridgman Road… Mt Olive is where my brothers and sisters and me grew up, and all up the valley the locals knew and respected us as the people from Mt Olive. When my Dad became ill in the mid-1990s he sold Mt Olive and moved to Singleton. Today, after a period in his adult life when he lived away, [name deleted] has returned to the Mt Olive area and has bought a small rural land holding that overlooks the property of my grandfather and which retains part of the creek which we all used as kids – Annexure B to Attachment F1 at [2] and [3]. 
[211]	As discussed in my reasons at s 190B(5) above, I am satisfied that the factual basis is sufficient to support an assertion that the members of the group and their predecessors over the period since settlement, have continued to inhabit, that is, live within, the application area.
[212]	I consider, therefore, that the right is one that exists pursuant to the traditional laws and customs of the group that have been handed down through the generations to the claimants today, and that it is, prima facie, established.
Right to move about the application area
[213]	Noting my view above that a right to exclusive possession is prima facie established, I consider that it naturally follows that the claim group also possess a right, prima facie, to move about the application area. Notwithstanding this, I consider that the material does speak to this particular right. For example, a statement by a claimant provides that:
It is also true that Emily was of the Plains Clan of the Wonnarua and I believe that she remained in the Sandy Hollow district for much of her life. Her son Henry was able to keep in contact with her through regular horseback trips up to Sandy Hollow. My grandfather use to tell me about the trips he would make following well known tracks from Broke back through Jerrys Plains, Denman and on to Sandy Hollow when he was a kid to go see his grandma. My grandfather used to tell me of how he would get impatient with his Dad on these long rides as he would always stop to have a “chin wag” with people he knew to be from his mob. On these trips they would sometimes come back via Muswellbrook, Ravensworth and on to Mt Olive and Singleton and then on to Broke to catch up with the extended family of the Franks, Smiths and Lester families… - Annexure D to Attachment F1 at [5]. 
[214]	In my view, this statement demonstrates that the predecessors of the native title claim group, including back to the generation occupying the area in the few decades following settlement (namely, the son of apical ancestor Emily), exercised a right to move about the application area. There are multiple other statements by claimants within the material that speak to the way in which they and their parents and grandparents, and even great grandparents, spent time travelling about their traditional country. Consequently, I am of the view that the right is, prima facie, one held pursuant to the traditional laws and customs of the group, passed down to the members of the group today. I consider, therefore, that the right is prima facie established.
Right to hold meetings on the application area
[215]	An example of the material before me that speaks to a right to hold meetings on the application area is the following statement made by a claimant:
Stories relayed to me by my grandparents of the times they had spent in Wonnarua Country – and of the things they were told by their parents – were often shared during picnics held at a lovely spot along Glennies Creek up on Old Carrowbrook Road near the home of the Franks family. It was known as the “Blacks camp”. Mum hated what the white man had called it, as it was so pretty… During these picnics we would listen to stories about the creation of Wonnarua country and about those special places and/or beings such as Biami, Tidilick the Frog and Burning Mountain that were of and from the beginning of time. I was told that a cave at Milbrodale was painted with an image of Biami. He was painted there to welcome people to welcome people to the territory of the Plains Clans… - Annexure C to Attachment F1 at [6].
[216]	From this statement, I understand that meetings of members of the claim group, for the purpose of passing on cultural knowledge and knowledge about country to younger generations, is a practice that is carried out by the claimants and was similarly carried out by the claimants’ predecessors. This, and further material in the application, in my view, demonstrates that meetings of this nature were in accordance with traditional methods of teaching about Wonnarua laws and customs passed down through the generations. 
[217]	In addition to this, I note that historical sources referred to in the material speak to various gatherings of the predecessors of the PCWP on the application area at around the time of settlement – see Annexure A to Attachment F1 at [8.3] and [8.4]. In light of all of this information, I consider that the right to hold meetings on the application area is prima facie established, and that it is a right held pursuant to the traditional laws and customs of the group. 
Right to hunt on the application area
[218]	Again, I consider that there is various information within the application that speaks to a right of the members of the claim group to hunt on the application area. One claimant describes a creation story taught to him by his predecessors that explains a belief held by members of the group regarding Biami, the creator spirit, and the way he designed animals for the PCWP to hunt within their traditional country:
[Biami] then placed the kangaroo (kaNawang) on the land to help make the tracks and flatten out the lands. The Kangaroo was told that he could be hunted by our people so he asked Biami for help to prosper so Biami gave him long legs to help him stand high, and be fast and ears that moved all around. He told the Kangaroo to always look for our people. As Biami watched our people he help [sic] them with fire from the sky and showed them where to go for shelter when it was cold and were [sic] to camp when it was hot – Annexure B to Attachment F1 at [17(d)].
[219]	Further to this, there are various statements within the material indicating that the predecessors of the group at settlement, and their descendants since that time, including the members of the claim group, have hunted on the application area, pursuant to an understanding that they have a right to do so under their laws and customs.
[220]	Noting that the material of this nature makes on-going reference to the way in which stories and methods of hunting have been passed down through the generations of PCWP, in accordance with traditional patterns of teaching, it is my view that the right is one that is held pursuant to the traditional laws and customs of the group, as acknowledged and observed by the predecessors of the group at settlement.
[221]	The right to hunt on the application area is, prima facie, established.
Right to fish on the application area
[222]	An example of the material within the application that I consider speaks to a right of the claim group to fish on the application area is the following statement by a claimant:
During my time at Jerry’s Plains my cousin Robert Lester would come out and stay for some weekends and we would go to the weir in the Hunter River just north of Jerry’s Plains upstream from Moses Crossing. We would build fish traps with the “bullrushes” that grew there and get the freshwater mullet that was abundant in this stream. We would also catch yabbies and use them for bait to catch perch along the creek under the willows – Annexure B to Attachment F1 at [22].
[223]	It is clear from this statement that members of the claim group and their families have fished at various times in the application area. Further material speaks to the way in which methods and techniques for catching fish were taught to the claimants by their predecessors, and that these were the techniques observed by the ‘old people’, while other material speaks to the way in which the ancestors of the PCWP gathered with other neighbouring groups in order to access marine resources - see for example Annexure B to Attachment F1 at [15], Annexure A to Attachment F1 at [8.4] and [8.6].
[224]	In light of this material, I am of the view that the right to fish is one held in accordance with the traditional laws and customs of the group that have been passed down through the generations to the claimants today, and that the right is, prima facie, established.
Right to use the natural water resources of the application area
[225]	This re-telling of a creation story by a claim group member, in my view, is an example of material within the application that speaks to a right of the group to take and use and the natural water resources of the application area:
Today, having been taught by my grandparents [name deleted] tells my youngest children and grand-children some of these ancestral stories too. A favourite of [name deleted] is “Tidilick the Frog”. There is a giant mossy green frog to be found in the natural sandstone outcrop near Wollombi. This is said to represent the frozen body of Tidilick the Frog. As my brother tells the story Tidilick was a gigantic frog that got greedy and swallowed up all the water from the creeks and rivers. This made all the plants and animals suffer. Luckily a platypus out near Wollombi way made him laugh so that he spat the water out and the water to run to fill all the rivers and creeks of the area including Cockfighter’s Creek, the Goulbourn and Hunter Rivers, Loders Creek, Nine Mile Creek and Wollombi Brook. This made these creeks beautiful and abundant places for our people and it is why in good times this area was like a modern day supermarket for our mob – Annexure C to Attachment F1 at [18].
[226]	There is also further material throughout the application indicating that the claimants and their predecessors have continued to access and use the water resources of the application area for their survival. This material speaks to the exercise of this right by the ancestors of the claim group at and prior to sovereignty, and since that time, by the predecessors of the claimants, and by the claimants today – see Annexure A to Attachment F1 at [11.2], [11.9], Annexure B to Attachment F1 at [15] to [16], and Annexure B to Attachment F1 at [10].
[227]	In light of this material, I consider that the right to use the natural water resources of the application area is supported by the material as one held pursuant to the traditional laws and customs of the group, and that it is, prima facie, established.
Right to gather the natural products of the application area
[228]	The following statement by a claimant I consider to be an example of the material in the application before me that speaks to a right of the claim group to gather the natural products of the application area:
Across the road from this burial site I was told that a ceremony was conducted where boys would use gold ochre sourced from the Bulga area. The boys would stay there for three (3) days learning how to use the ‘she-oaks’ that grow along the creek. Bark from the ‘she-oaks’ would be crushed and placed a little upstream and allowed to flow with the water down into some small ponds that had been made using the rocks in the creek. When the crushed she-oak bark reached these ponds it leached enough sap into the water to affect the fish. All the perch, sprats, mud gudgeons, eels, catfish and mullet that were in the ponds at this time would float to the surface allowing them to be easily caught. I was also told they would use the she oak branches as I had done to catch yabbies – Annexure B to Attachment F1 at [15].  
[229]	From this material that speaks to a right to gather the natural products of the area, I consider that it is clear that claimants have been taught, and told stories, by their parents and grandparents of the way in which their predecessors before them, including those occupying the area at sovereignty, exercised the right, and the way in which they were entitled to do so pursuant to their traditional laws and customs. 
[230]	I consider, therefore, that the right is prima facie established.
Right to conduct ceremony on the application area
[231]	There is various information provided within the application that I consider speaks to a right to conduct ceremony on the application area. The following statement by a claimant is an example:
My great-grandfather Henry was able to be [sic] learn, practice and teach the Wonnarua lores and customs to his sons and daughters because although he was raised away from his mother he was fortunate to be brought up in the Broke-Bulga-Putty-Jerrys Plain area where many of the important gathering sites and ceremonial tracks of the Plains Clan occur. He was a young boy down in that area for example just ten years or so after 1852 when the last big inter-tribal ceremony was reportedly held at the Bulga Bora ground. My great-grandfather spent a lot of time in and around the special places of the wider PCWP clan group at Warkworth, Broke, Jerry’s Plains and Bulga… - Annexure D to Attachment F1 at [6].
[232]	In addition to this, historical sources referred to within the material speak to the way in which ceremonies carried out by the predecessors of the PCWP at settlement were recorded by early settlers in the area - see Annexure A to Attachment F1 at [1.5]. The material also asserts that known sites where ceremonies were conducted by the claimants’ ancestors continue to be acknowledged as important places requiring protection – see Annexure B to Attachment F1 at [16] and [18]; Annexure C to Attachment F1 at [22].
[233]	Noting the asserted facts of this nature within the material, I consider that the right is supported as one held pursuant to the traditional laws and customs of the group, and that it is, prima facie, established.
Right to participate in cultural activities on the application area
[234]	While there is no definition or explanation provided within the application as to what a right to participate in ‘cultural activities’ might entail, I have inferred from the material that such activities are those carried out by the claimants and their predecessors on the application area pursuant to their culture, and the laws and customs of the Wonnarua People. In my view, the material does speak to a right of the group to participate in such activities, and I consider that the following statement is an example:
Sometimes too we drove down Redmanvale Road to get back to the top of the ridge above the bora ground at Bulga. I was told that a birthing site was located in this area and this was especially because there was a creek that ran down from it (that rose up from a natural spring) in which soap weed grew. The women would gather this weed to wash the children when they were first born. The children were then named and cared for by the women until they were of age. When of age the boys would gather from all across our country to go with the men to start the “rites of passage”. At this time the boys would be taken along the ceremonial tracks to the Bulga bora ground. Often too this meant they were brought back to the nearby place of their birth – Annexure B to Attachment F1 at [29].
[235]	It is clear from this statement that the claimants’ predecessors before them carried out certain cultural activities, relating to birth and ‘rites of passage’, and that information regarding the conduct of these activities has been passed down to the members of the group in accordance with traditional patterns of teaching. It is also clear, in my view, from this statement, that the sites at which these cultural activities were carried out continue to be visited and acknowledged as important by the members of the claim group today. 
[236]	Consequently, I am of the view that the material speaks to the right as being one that is held pursuant to the traditional laws and customs of the group, and that it is, prima facie, established.
Right to maintain places of importance under traditional laws, customs and practices
Right to protect places of importance under traditional laws, customs and practices
[237]	In my consideration of the rights and interests set out at Schedule E, it is my view that there is little difference between these two rights as expressed. From the material, it is clear that the same activities carried out on the land and waters of the application area are the outcome of each of those individual rights, such that the rights have the same substance. Consequently, I have considered them as the same right or interest.
[238]	There is, in my view, material before me that speaks to a right to maintain and protect places of importance under traditional laws, customs and practices. The following statement made by a member of the claim group is an example:
From my viewpoint it is a terrible thing that these actions of white people took away the human rights, dignity and culture of some Aboriginal members of the community. They simply did not want to identify as Aboriginal because, at least from their perspective, if you did you got no respect. What’s worse is that now 50-60 years down the track more of our culture and our special spots are being taken away as they dig it all up with the mines. Places like grinding groove sites, fishing spots, ceremonial areas, story places, ancestral tracks, birth places, ‘natural hospital areas’ spiritual places and prayer spots, are all being destroyed.
Despite the prejudice my family has always identified as Wonnarua of the Plains Clans with specific ancestral links to our clan lands about Ravensworth, Camberwell, Bridgman, Singleton, Glendon, Carrowbrook, Mt Royal, and Goorangoola. We have always valued, and respected our land, our heritage and our identity… It was important to my mother and it is important to me that we look after our special places and teach the children about the ecological and cultural heritage values of my Wonnarua Country – Annexure C to Attachment F1.
[239]	From this statement I consider that the obligation upon claim group members to protect such places arises from their understanding that these were also important places for their predecessors, and the PCWP ancestors. The claimant’s statement similarly suggests that this obligation or understanding was passed down to her by her mother, in accordance with traditional methods of teaching. In this way, I consider the right to be one that is held pursuant to the traditional laws and customs of the group, and that it is, prima facie, established.
Right to conduct burials on the application area
[240]	I note that the question at s 190B(6) is not whether the material prima facie supports the current exercise of the right claimed, but whether the right is prima facie established, and in accordance with s 223(1), whether it is one held pursuant to the traditional laws and customs of the group. The following statement is an example of the material before me that I consider speaks to a right of the PCWP to conduct burials on the application area:
The St Clair Mission was on the creek just downstream from our property. As well as being an Aboriginal mission site this area also contains traditional Aboriginal burials. Those burial sites were shown to me by my Dad and [name deleted] when I was very young. Me and me [sic] brothers were told not to go there ever at night as the spirits would be looking out and guarding over the burial grounds – Annexure B to Attachment F1.
[241]	In my view, this statement demonstrates that the claimants’ predecessors, pursuant to their traditional laws and customs, conducted burials on the application area. I consider that this statement also indicates that this practice conducted by the predecessors of the group is acknowledged and understood as one of significance and importance by the members of the group today. In this way, I understand the right to be one that is held pursuant to the traditional laws and customs of the claim group, and that it is, prima facie, established.  
Right to speak for and make non-exclusive decisions about the application area
[242]	Noting the case law principles regarding a right to exclusive possession set out in my reasons above, it is my view that there can be no non-exclusive right to speak for country and make decisions about country, as these elements are inextricably linked to a right of exclusive possession.
[243]	 As the High Court held in Ward HC:
It may be accepted that… “a core concept of traditional laws and custom [is] the right to be asked permission and to ‘speak for country’”. It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others. The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.
The 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. To break the expression into its constituent elements is apt to mislead – at [88] and [89].
[244]	It is my understanding, therefore, that a right to speak for country is a right that is inherent in a native title right of exclusive possession, and that to refer to a right to speak for country, or a right to exercise certain control over the area, such as by making decisions about the use of that area, as non-exclusive, would be ‘apt to mislead’. These rights are by their nature exclusive.
[245]	Notwithstanding this, my view is that there is no further information provided within the material regarding what a right to speak for and make ‘non-exclusive decisions’ about the application area might entail, or that enables me to understand the meaning or substance of this right as claimed. For example, having considered the full extent of the material before me, there is nothing, in my view, which brings to light the nature of the ‘non-exclusive’ decisions that the members of the PCWP claim a right to make. 
[246]	Consequently, I do not consider that the right to speak for, and make non-exclusive decisions about, the application area is, prima facie, established.
Right to cultivate and harvest native flora according to traditional laws and customs
[247]	There is certain material before me that I consider speaks to a right of the members of the claim group to cultivate and harvest native flora. This statement by a claimant is an example:
I was also taught how to use the bark from the she oak that grew along the creeks to make a light rope that could be used as a snare to trap the bush turkeys that we sometimes found out the back of Jerry’s Plains. [Names deleted] showed me how to get the red inner section of the she oak bark by stripping it away from the trees in small long sections so that each tree would not die. After this I was shown how to take that soft inner bark and hammer it softly with a river stone so that slowly long lengths of bark were formed that you could then join by rubbing the ends together on some Kangaroo pelt, or even on [name deleted] hairy leg. This motion would take the hair from the skin and join it to the inner bark as the sap dried and the hair from the Kangaroo skin bound the twine together. We would then use that light rope and place it on the top of the brush turkey mounds to snare them by the leg… - Annexure B to Attachment F1 at [20].
[248]	In addition to this, numerous other statements refer to certain plants being used by the claimants and their predecessors for a range of purposes. From the material of this nature, in my view, it is clear that the methods for collecting native flora have been passed down to the members of the claim group by their predecessors, and that this information has been continually passed down through the generations in accordance with traditional patterns of teaching.
[249]	I consider, therefore, that the right to cultivate and harvest native flora according to traditional laws and customs is, prima facie, established.
Right to control access to, and the use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom
[250]	From the material, it is my understanding that the native title claim group is a localised sub-group of the Wonnarua People, namely the Plains Clans of the Wonnaura, who are distinguished by their specific rights and interests in the application area. From the material, it is also my understanding that the PCWP share their system of laws and customs with the wider Wonnarua society.
[251]	Consequently, it is my understanding that a right to control access to, and the use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom seeks to bind persons beyond and outside of the native title claim group. Again, as discussed in my reasons above in relation to a non-exclusive right to speak for and make non-exclusive decisions about the area, I consider that this concept of controlling access of persons other than members of the claim group to be inextricably linked to a right of exclusive possession. In my view, it is clear from the decision of the High Court in Ward HC that to refer to such a right in non-exclusive terms is misleading.
[252]	Therefore, I do not consider that a right to control access to, and the use of, the area by Aboriginal people who seek access or use in accordance with traditional law and custom is, prima facie, established.
Conclusion
[253]	The application 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.
[254]	Mansfield J in Doepel, discussed the role of the Registrar’s delegate at s 190B(7) in the following way:
Section 190B(7) imposes a different task upon the Registrar [to that imposed by s 190B(5)]. It does require the Registrar to be satisfied of a particular fact or 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].
[255]	In Gudjala 2007, Dowsett J found that the meaning of ‘traditional physical connection’, in relation to the task at s 190B(7), was to be understood in light of the definition of ‘traditional’ as found by the High Court in Yorta Yorta. His Honour held that:
The delegate considered that the reference to ‘traditional physical connection’ should be taken as denoting, by the use of the word “traditional”, that the relevant connection was in accordance with laws and customs of the group having their origin in pre-contact society. This seems to be consistent with the approach taken in Yorta Yorta – Gudjala 2007 at [89].
[256]	Referring to the registration of a claim, in Yorta Yorta the High Court commented that the requirement of a traditional physical connection, ‘strongly suggests the need for an actual presence on the land’ – at [184]. This is supported by the explanatory memorandum to the Native Title Amendment Bill 1997 which explained that the connection described in s 190B(7) ‘must amount to more than a transitory access or intermittent non-native title access’ – at [29.19].
[257]	 Noting that the focus of the requirement at s 190B(7) is to be upon the traditional physical connection of at least one member of the native title claim group, I have turned my mind to the relevant ‘evidentiary material’ as it relates to one particular claim group member, namely Mr Scott Franks.
[258]	The material states that Mr Scott Franks is a member of the native title claim group through his descent from apical ancestor Mary Shoe – see Annexure B to Attachment F1 at [1]. There is a considerable amount of material before me that speaks to Mr Franks’ connection with various parts of the application area. For example, the application contains the following statements from Mr Franks:
As a boy at Mt Olive I was taught how to howl or call dingoes in so as to make them come close enough to be able to shoot them like my uncle, father, grandfather and great grandfather before me. [Names deleted] also taught me all the other things I needed to know about my Country. They taught me about the walking tracks and ceremonial places; about where they were and what they meant and how to read the signs to find my way. All of my elders gave me the knowledge of what it was and is to be Wonnarua and they taught me who could speak for our lands – Annexure B to Attachment F1 at [4].
[259]	Mr Franks also states:
Every month me, [names deleted] would walk the family property and hunt and gather. During our travels we would be gone for days at a time travelling along the bush tracks in our country (my Peoples land). I was taught that one ceremonial track passed through our property “Mt Olive”. It commenced at the headwaters of Falbrook/Glennies Creek near Goorangoola and Mt Royal and travelled down along the creek all the way to Singleton – Annexure B to Attachment F1 at [5].
[260]	And he further states:
Some weekends [name deleted] and I would travel through to Dural Caves to look at the paintings made by my old people there. I would tell him about what was going on there in the early days and how boys would be brought through to the caves on part of their physical and spiritual journey towards manhood that would be finalised at the initiations held at the nearby ceremonial or ‘bora’ ground at Bulga. I told [name deleted] the stories that were handed down to me from my [names deleted] I also told him that these stories had been given to [name deleted] by his mother and his mother’s father and to [name deleted] by his mother who was the sister of my grandmother – Annexure B to Attachment F1 at [26].
[261]	From these statements and others within the material it is my understanding that Mr Franks has spent most of his life living within the application area, and that as a child, he spent time travelling across the area being taught about his country, including his rights and responsibilities in relation to that country, by his elders. I also understand that Mr Franks continues to spend time on his country, passing on this knowledge to his son. From these statements, I further understand that Mr Franks has thorough knowledge about particular aspects of the PCWP laws and customs in relation to his country, including the location of ceremonial tracks taken by the ‘old people’, the initiation ceremonies undertaken by his predecessors, and the rights and interests those PCWP before him possessed that he has inherited through his line of descent, including to hunt and gather on the application area, to camp and to travel across the application area.   
[262]	It is clear, in my view, from these statements that Mr Franks’ connection with certain parts of the application area is a physical one. Noting my view above at s 190B(5)(b) regarding traditional patterns of teaching, and that this method of teaching is pursuant to the traditional laws and customs of the PCWP, I consider that the nature of the physical connection is that it is traditional, namely, that it is in accordance with the laws and customs of the group having their origin in the relevant society at settlement. 
[263]	I am, therefore, satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with the application area. 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 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.

[264]	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)
[265]	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 assessment confirms that as at 7 July 2014 there are no determinations of native title that cover the whole, or part of the application area. To confirm that this remains the situation as of the date of this decision, using the Tribunal’s iSpatial database, I have produced an overlap analysis of the application area. This shows that there has been no change to the application area since the geospatial assessment was completed.
[266]	This requirement is met.
Section 61A(2)
[267]	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. Attachment B2 to Schedule B of the application describes areas falling within the boundary of the application area that are excluded from that area. 
[268]	The wording used to describe the excluded areas is exactly as it appears in s 23B of the Act, which sets out the definition of ‘previous exclusive possession act’. It is my understanding, therefore, that those areas covered by a previous exclusive possession act are not included in the application area. 
[269]	This requirement is met.
Section 61A(3)
[270]	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 includes a claim to a right of exclusive possession, however, the way in which this right is phrased makes clear that the right is claimed only over those areas where it can be recognised.
[271]	This requirement is met. 
Conclusion
[272]	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.
[273]	I consider each of the subconditions of s. 190B(9) in my reasons below.
Section 190B(9)(a)
[274]	Schedule Q states that the application does not include a claim to the ownership of minerals, petroleum or gas wholly owned by the Crown.
Section 190B(9)(b)
[275]	Schedule P provides that there is no claim of exclusive possession made in relation to any offshore place.
Section 190B(9)(c)
[276]	Paragraph [3] of Schedule E states that the area covered by the application excludes any area in relation to which native title rights and interests have otherwise been wholly extinguished. 
Conclusion
[277]	In my view the application does not offend any of the provisions of ss 190B(9)(a), (b) and (c) and therefore the application meets the condition of s 190B(9).

[End of reasons]

Attachment A
Information to be included on the Register of Native Title Claims
Application name	Scott Franks and Anor on behalf of the Plains Clans of the Wonnarua People	
NNTT file no.	NC2013/006	
Federal Court of Australia file no.	NSD1680/2013	

In accordance with ss 190(1) and 186 of the Native Title Act 1993 (Cth), 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:
19 August 2013
Date application entered on Register:
16 January 2015
Applicant:
Scott McCain Franks and Robert John Lester
Applicant’s address for service:
Scott McCain Franks and Robert John Lester
17 River Road
Emu Plains NSW 2750
Area covered by application:
A description of the external boundary of the area of land and waters covered by the application is provided at Attachment B1.
A map showing the external boundary of the area covered by the application is provided at Attachment C.
Those areas within the external boundary that are not covered by the application are described in Attachment B2. 
Persons claiming to hold native title:
The members of the native title claim group are the biological descendants of
(a)	Emily (who was born in approximately 1840, and was the mother of Henry Frederick Taggart who was born in Howes Valley, Broke in 1859 and who died on 5 March 1941 in the District of Singleton); and
(b)	Mary Shoe (who was born approximately 1800 in the Singleton district, and who was the mother of Matilda Hughes who was born approximately 1833 in or around Scone, who married James Arthur Smith on 28 December 1856 at Fallbrook and who died on 5 October 1913 at Bridgeman, Patricks Plains Shire).
Registered native title rights and interests:
1.	Over areas where a claim to exclusive possession can be recognised (such as where there has been no prior extinguishment of native title, or where ss.47, 47A or 47B apply), the native title claim group claims the right to possess occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
2.	Over areas where a claim to exclusive possession cannot be recognised, the native title claim group claims the following rights and interests:
(a)	the right to access the application area;
(b)	the right to camp on the application area;
(c)	the right to erect shelters on the application area;
(d)	the right to live on the application area;
(e)	the right to move about the application area;
(f)	the right to hold meetings on the application area;
(g)	the right to hunt on the application area;
(h)	the right to fish on the application area;
(i)	the right to use the natural water resources of the application area including the beds and banks of watercourses;
(j)	the right to gather the natural products of the application area (including: food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs;
(k)	the right to conduct ceremony on the application area;
(l)	the right to participate in cultural activities on the application area;
(m)	the right to maintain places of importance under traditional laws, customs and practices in the application area;
(n)	the right to protect places of importance under traditional laws, customs and practices in the application area;
(o)	the right to conduct burials on the application area;
(q)	the right to cultivate and harvest native flora according to traditional laws and customs;
3.	The native title rights and interests are subject to and exercisable in accordance with:
(a)	the laws of the State of New South Wales and the Commonwealth of Australia;
(b)	the rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State of New South Wales; and
(c)	the traditional laws acknowledged and the traditional customs observed by the native title claim group. 

[End of document]