Registration test decision

Application name	Ngurra Kayanta	
Name of applicant	Helicopter Tjungarrayi, Bartholomew Baadjo, Jane Bieundurry, Sandra Brooking, Darren Farmer, Eugene Laurel, Rita Minga, Frances Nanguri, Richard Yugumbarri	
NNTT file no.	WC2012/013	
Federal Court of Australia file no.	WAD410/2012	
Date application made	21 December 2012	
Date application last amended	6 May 2015	
		
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:	31 July 2015	

___________________________________
Lisa Jowett
Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cth) under an instrument of delegation dated 4 May 2015 and made pursuant to s 99 of the Act. 

Reasons for decision
Introduction
[1]	The Registrar of the Federal Court of Australia (the Court) gave a copy of the Ngurra Kayanta native title determination application (WAD410/2012) to the Native Title Registrar (the Registrar) on 6 May 2015 pursuant to s 64(4) of the Act. This has triggered the Registrar’s duty to consider the claim made in the application for registration in accordance with s 190A: see subsection 190A(1). 
[2]	Sections 190A(1A), (6), (6A) and (6B) set out the decisions available to the Registrar under s 190A. Subsection 190A(1A) provides for exemption from the registration test for certain amended applications and s 190A(6A) provides that the Registrar must accept a claim (in an amended application) when it meets certain conditions. Section 190A(6) provides that the Registrar must accept the claim for registration if it satisfies all of the conditions of s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters). Section 190A(6B) provides that the Registrar must not accept the claim for registration if it does not satisfy all of the conditions of ss 190B and 190C. 
[3]	I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply to the claim made in this amended application. The granting of leave by the Court to amend the application was not made pursuant to s 87A, and thus the circumstance described in s 190A(1A) does not arise. The amendments to the application include a change to Schedule A (the description of the native title claim group) that is not of a type contemplated in s 190A(6A) and does not therefore meet the requirements of that condition.
[4]	Therefore, I have considered the claim made in the amended application in accordance with s 190A. I have reached the view that the claim satisfies all of the conditions in ss 190B and 190C and, pursuant to s 190A(6), the claim in the amended application must be accepted for registration. This document sets out my reasons, as the delegate of the Registrar, for my decision to accept the claim for registration pursuant to s 190A of the Act 
Application overview and background
[5]	The Ngurra Kayanta native title determination application was first made on 21 December 2012. It was accepted for registration and entered on the Register of Native Title Claims on 21 February 2013.
[6]	On 5 May 2015 the Court made consent orders that the application ‘be amended in the form titled Minute of Amended Native Title Determination Application Ngurra Kayanta Claimant Application annexed to the affidavit of Malcolm O’Dell of 30 April 2015 and marked as MOD 1’. The amended Form 1 (native title determination application) was filed in the Court on 6 May 2015.
[7]	The area covered by the application falls in the Great Sandy Desert approximately 1000 km east of the town of Karratha in Western Australia. It is entirely surrounded by the Ngururrpa, Martu, Ngurra, Kiwirrkurra and Tjurabalan native title determinations.
Information considered when making the decision
[8]	Section 190A(3) sets out the information to which the Registrar must have regard in considering a claim under s 190A and provides that the Registrar ‘may have regard to such other information as he or she considers appropriate’. Below I have identified all of the information and documents that I have considered in reaching my decision.
Subsection 190A(3)(a): Application and other documents provided by the applicant
[9]	As required by s 190A(3)(a), I have had regard to information in the amended application and its accompanying documents:
(i)	the Form 1 including Attachments A, B, C, D, F, G, HA, I, M, R and S; and
(ii)	Attachment T—Report providing information on the Ngurra Kayanta claim area WAD140 of 2012 prepared by Dr Heather Lynes and Sean Calderwood (undated) which includes:
•	Attachment A – Dr Norman Tindale map from UCLA Expedition 1953,
•	Attachment B – Family Country Map,
•	Attachment C –2012 affidavits of [Claimant 1], [Claimant 2], [Claimant  3] and [Claimant 4],
•	Attachment D – 28 Genealogies.
[10]	 I have also considered additional material provided by the applicant to the Registrar—Applicant’s Submissions for the Registration Test (dated 8 June 2015).
[11]	The additional material took the form of ‘legal submissions’ which directed to me to material considered by the delegate in her 2013 registration decision. In addition to the original application and its accompanying documents, I have therefore had regard to the original application and following additional documents provided by the applicant in relation to it:
(i)	Applicant’s Submissions for the Registration Test (dated 1 February 2013), which included:
•	A report titled Anthropological Report for Registration Matters prepared by Sean Calderwood (dated 24 January 2013); and
•	the 2012 affidavits of members of the native title claim group listed above.
Subsection 190A(3)(b): Searches conducted by the Registrar of State/Commonwealth interest registers
[12]	There is no information before me of this kind. 
Subsection 190A(3)(c): Information supplied by Commonwealth/State
[13]	The State of Western Australia (the State) has not provided any submissions in relation to the application of the registration test to the amended application .
Section 190A(3): other information to which Registrar considers it appropriate to have regard
[14]	I consider it appropriate to have regard to the previous delegate’s statement of reasons for the registration decision (dated 21 February 2013) for the original application filed 21 December 2012. 
[15]	I have also considered information contained in an overlap analysis and geospatial assessment of the map and description provided in the amended application by the Tribunal’s Geospatial Services dated 13 May 2015 (the geospatial report).
Procedural fairness steps
[16]	As noted above, I have considered the additional material provided by the applicant on 8 June 2015. On 15 July 2015, I wrote to the State advising that I would be relying on this information in my application of the registration test and that should they wish to make any submissions, they should do so by 29 July 2015. On 24 July 2015 the Tribunal’s case manager for the matter received confirmation that the State had no comments or submissions to make in relation to the additional material. This concluded the procedural fairness processes. 

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
[17]	In assessing the current application against s 190B(2), I am required to be satisfied that the information provided by the applicant for the purposes of ss 62(2)(a) and 62(2)(b) is sufficient for the particular land and waters, over which native title rights and interests are claimed, to be identified with reasonable certainty. In reaching the required level of satisfaction, it is to the terms of the application itself that I am to direct my attention—Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] and [122].
Description of the area covered by the application
[18]	Schedule B provides a description of the external boundaries as well as those areas not covered by the application. The description is comprised of three sub-headings:
•	Part A. External boundaries and description which refers to Attachment B for the identification of the external boundaries and Attachment C for the map of those external boundaries.
•	Part B. Applicability of sections 61A(4), s47, 47A and s47B which refers to ‘... part of Reserve 26399 ... ’, ‘... vacant Crown Land ... ’ and ‘... other areas to which the non-extinguishment principle as defined in section 228 of the NTA applies.’
•	Part C. Areas within the external boundaries that are not covered by the application which sets  out in the terms of general and specific exclusion statements by reference to the NTA those areas within the external boundary that are not covered by the application.
[19]	Attachment B is titled Identification of Boundaries and includes a metes and bounds description that references Reserve 26399 and contiguous native title determination boundaries.
[20]	Schedule C refers to Attachment C which is an A4 copy of a coloured map titled Ngurra Kayanta – Native Title Application (WC2012/013) prepared by Landgate – Native Title Spatial Services (10/04/2015) that includes:
•	the application area depicted by a light blue line with cross hachure fill;
•	a land tenure background with Reserves, Pastoral Leases, General Leases and UCL parcels labelled;
•	a locality diagram;
•	scalebar, northpoint, coordinate grid; and
•	notes relating to the source, currency and datum of data used to prepare the map.
Consideration
[21]	The information in relation to the external boundaries of the area covered by the application allows me to identify the location of those boundaries on the surface of the earth. The exclusion statements (provided at Part C) used to describe areas not covered by the application are in my view, sufficient to offer an objective mechanism by which to identify areas that may fall within the categories described. It is clear to me that the application relies on the benefit of the provisions of ss 47A and 47B (as per Schedule L) such that any extinguishment resulting from any of the acts referred to in the exclusion statements may be disregarded.
[22]	The geospatial report confirms that the area covered by the application has not been amended nor has it been reduced. It also confirms that the area does not include any areas which have not previously been claimed in the original application. It makes the assessment that the description and the map are consistent such that the area covered by the application is readily identifiable. I agree with that assessment. I am therefore satisfied that the external boundary is identifiable and, including the potential effect of the non-extinguishment statements, that it can be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
[23]	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.
[24]	Attachment A to the application does not name the persons in the native title claim group but contains a description of that group, being the basis for its composition. It is therefore necessary to consider whether the application satisfies the requirements of s 190B(3)(b).
[25]	I note the comments of Mansfield J in Doepel that the focus of s 190B(3)(b) is:
•	not on ‘the correctness of the description . . . but upon its adequacy so that the members [sic] of any particular person in the identified native title claim group can be ascertained’—at [37]; and
•	whether the application enables the reliable identification of persons in the native title claim group—at [51].
[26]	Carr J in State of Western Australia v Native Title Registrar (1999) 95 FCR 93 (Western Australia v Native Title Registrar) was of the view that ‘it may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently’—at [67].

[27]	The description of the native title claim group at Attachment A is as follows:
36. The native title claim group comprises those persons who hold native title rights and interests in the application area according to traditional laws and customs through:
(a)	birth ngurra on the application area;
(b)	birth ngurra of an ancestor on the application area;
(c)	having religious, sacred, ritual, practical and/or historical knowledge/ authority of the application area;
(d)	having one’s conception site on the application area;
(e)	having burial sites of ancestors on the application area;
(f)	long traditional association with the application area through occupation, custodianship or use by one’s self and/or relevant kin; and
(g)	asserting connection with the application area and having that assertion accepted by others.
37. The persons referred to in paragraph 36 above include:
(a) those people who are the descendants of:
(i) the siblings Walparpakanu and Tjinatjunku;
(ii) Tjukul;
(iii) Old Mosquito;
(iv) Wurtajeri;
(v) Puyoga;
(vi) Nakinya;
(vii) Jinny James and Jimmy Wirili James;
(viii) Loa Loa and Tjatjiba;
(ix) Nyirlpirr and Nindiya;
(x) Piinyuka;
(xi) the Siblings Tjiltjikurta, Tjinaminayi and Yawartajungka;
(xii) Wilkirbayi and Mamarka;
(xiii) Nyalali Napanangka;
(xiv) Lili/ Ikupani Tjapanangka;
(xv) Rosie Nanyuma;
(xvi) the Siblings Papalya, Nyarnu and Wartungka;
(xvii) the Siblings Winurru, Kurtakara, Ngayulan, Walalpayi, Tjatatji and Wayul;
(xviii) Tjipumaru Tjupurrula and Tjupantjarri Napanangka;
(xix) Kalpurta Tjakamarra;
(xx) the Siblings Putanangarri Tjapaltjarri, Tjinapilpa Tjapaltjarri, Mantjarlin Tjapaltjarri and Parrkulya Tjapaltjarri;
(xxi) Mamutja Tjapanangka;
(xxii) Talitjarra/Charlie Watson;
(xxiii) Piyakurna;
(xxiv) Jujula;
(xxv) Pudji/Puji/Puju;
(xxvi) Kurtajiji Wilberforce;
(xxvii) Tjaparli /Tjapurti;
(xxviii) the Siblings Wapiltjukur, Kulapurta and Tjarrpayi; and
(xxix) the Siblings Ruby Button and Katararpa.
 (b) the following people:
(i) Muuki Taylor; and
(ii) Wakka Taylor.
[28]	In my view, the description of the group is capable of being readily understood and is sufficiently clear such that it can be ascertained whether any particular person is in that group. Based on the information provided to describe the native title claim group, I understand that membership is in accordance with a number of specifically defined traditional laws and customs and that a person will be a member of the native title claim group through descent of (one or more) identified ancestral lines. Two persons are also specifically identified as members of the native title claim group.
[29]	It may be that some factual inquiry is required to ascertain how members of the claim group are descended from the named apical ancestors, but that would not mean, in my view,  that the group has not been sufficiently described.
[30]	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.
[31]	Section 190B(4) requires the Registrar to be satisfied that the description of the claimed native title rights and interests contained in the application is sufficient to allow the rights and interests to be identified—Doepel at [92]. In Doepel, Mansfield J refers to the Registrar’s consideration.
The Registrar referred to s. 223(1) and to the decision in Ward. He recognised that some claimed rights and interests may not be native title rights and interests as defined. He identified the test of identifiability as being whether the claimed native title rights and interests are understandable and have meaning. There is no criticism of him in that regard—at [99].
[32]	On this basis, for a description to be sufficient to allow the claimed native title rights and interests to be readily identified, it must describe what is claimed in a clear and easily understood manner. Schedule E of the application contains the description of native title rights and interests claimed in relation to the area covered by the application, as required by s 62(2)(d):
12.	The nature and extent of the native title rights and interests held by the native title claim group in the whole of the application area (including any areas where extinguishment must be disregarded pursuant to sections 47, 47A and 47B of the NTA) is the right to possess, occupy, use and enjoy the land and waters of the application area to the exclusion of all others.
13.	The native title rights and interests are: 
(a)	exercisable in accordance with the traditional laws and customs of the native title claim group; and 
(b)	subject to the valid laws of the State of Western Australia and the Commonwealth of Australia, including the common law.
[33]	I am of the view that the native title rights and interests claimed can be ‘properly understood’. There is also ‘no inherent or explicit contradiction’ in the description that prevents me from reaching the level of satisfaction required by s 190B(4)—Doepel at [123]. I am therefore satisfied that the description contained in the application is sufficient to allow the native title rights and interests to be readily identified.
[34]	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
[35]	For the application to meet this merit condition, I must be satisfied that a sufficient factual basis is provided to support the assertion that the claimed native title rights and interests exist and to support the particularised assertions in paragraphs (a) to (c) of s 190B(5). In Doepel (and this was approved by the Full Court in Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC) at [82] to [85]), Mansfield J stated that:
Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the `factual basis on which it is asserted’ that the claimed native title rights and interests exist `is sufficient to support the assertion’. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts—at [17].
[36]	The decisions of Dowsett J in Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007) and Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009) also give specific content to each of the elements of the test at ss 190B(5)(a) to (c). The Full Court in Gudjala FC, did not criticise generally the approach that Dowsett J took in relation to these elements in Gudjala 2007, including his assessment of what was required within the factual basis to support each of the assertions at s 190B(5). His approach in Gudjala 2009 was consistent with the approach he took in Gudjala 2007.
[37]	Arising from these decisions are clear principles which guide the Registrar when assessing the sufficiency of a claim’s factual basis. In summary, they are:
•	the applicant is not required ‘to provide anything more than a general description of the factual basis’—Gudjala FC at [92];
•	the nature of the material provided need not be of the type that would prove the asserted facts—Gudjala FC at [92]; and
•	the Registrar is not to consider or deliberate upon the accuracy of the information/facts asserted—Doepel at [47].
[38]	In my view, the test in s 190A involves an administrative decision—it is not a trial or hearing of a determination of native title pursuant to s 225, and therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is not the task of the delegate to make findings about whether or not the claimed native title rights and interests exist. Nor is it the role of the delegate to reach definitive conclusions about complex anthropological issues pertaining to the native title claim group’s relationship with its country as that is a judicial enquiry.
Composition of the native title claim group
[39]	In this amended application, the description of the native title claim group has undergone significant refinement. It is explained in the later Calderwood report that research has ‘identified necessary changes to the Ngurra Kayanta Claim group description ... that would more appropriately align it to the description of the actual native title holders for the Ngurra Kayanta Claim Area...’—at [1.4]. Further, it is said that the refinement of the genealogies and the apicals better captures the Native Title Claim Group as authorised. 
[40]	The later Calderwood report provides a table at paragraph 22.3 to explain the differences between the earlier and current descriptions of the native title claim group. The majority of adjustments to the names of apical ancestors have been made on the basis of correcting spelling, reverting to an ancestor a generation before or after or more accurately naming certain ancestors, the outcome of which is said to neither include, nor exclude any person.  Many of these adjustments have resulted in additional persons and families being added to the native title claim group. In only 3 instances have apical ancestors been removed resulting in a person or family being removed from the claim group.
[41]	One the face of the description at Schedule A with its deletions and additions of many names, the amendments to the description of the native title claim group would appear to be extensive. The breakdown provided in the table in the later Calderwood report clarifies these changes providing a basis on which they are made and in my view, it is apparent that changes have resulted in the overall composition of the group but these are not so significant as to render the factual basis for the claim irrelevant or defunct.
[42]	The applicant submits in its June 2015 legal submissions that this amended application ‘does not change the factual basis on which the Ngurra Kayanta claim is brought’ and that the previous delegate’s reasons for decision to register the original application remain applicable—at [8]. I agree with that submission.
[43]	I have therefore considered this refinement of the composition of the Ngurra Kayanta claim group to the extent that the factual basis continues to support the asserted existence of the native title rights and interests claimed in the application by the identified native title claim group. In my view, the effect of this refinement does not create a further impost on the claim’s factual basis in order for it to meet the requirements of s 190B(5). In my view, I am not required to be satisfied that each and every apical ancestor had an association with the area of the application, and consequently that each and every member of the native title claim group now has an association at all times.
[44]	What is required is for the factual basis material to evidence an association between the whole group and the area and an association between the predecessors of the whole group and the area over the period since sovereignty—Gudjala 2007 at [52]. It is also a requirement that the factual basis material sufficiently identify the Indigenous society that is asserted to have existed at the time of sovereignty, or first European contact, in the area covered by the application. In this sense, it is not my task to ensure that each and every apical ancestor identified in the description of the native title claim group was a member of that society, those persons are simply used to define the claim group—Gudjala 2007 at [66].
Consideration of the previous delegate’s statement of reasons for decision
[45]	The only material difference between the 2012 application and the one now before me for consideration is a change to the description of the native title claim group – about which I have dealt above. On this basis, I am of the view that it is appropriate that I have regard to the previous delegate’s statement of reasons for decision dated 11 February 2013, accepting for registration the claim in the application as it was then made, and specifically the reasons she provided for the factual basis condition. I accept the applicant’s submissions in respect of the previous registration decision and it is my view that the reasons provided by the delegate remain relevant and applicable because the current amended application relies on virtually the same material relied on by the original application – Schedule F, the affidavits of 4 members of the native title claim group and reports by Sean Calderwood, the first dated 1 February 2013 and the second updated to address changes to the claim group description (the Calderwood reports). The same legal submissions have been provided in relation to both the original and amended applications, except for an additional section in the later submissions entitled ‘Purpose and effect of the amendments’–at [9] to [11]. 
[46]	I have read the 4 affidavits, the Calderwood reports and legal submissions and have considered the entirety of the current amended application against the requirements for the provision of a sufficient factual basis. I have read the previous delegate’s statement of reasons and formed the view that I agree with her summaries of the material and her assessment, reasoning and conclusions in respect of the three assertions for the factual basis condition. It is on this basis that I have decided to adopt the previous delegate’s summaries of the material where I consider them applicable to the application because the same facts and law apply. Further, I have adopted the reasons of the previous delegate where I reach the same conclusion and agree with the basis for her conclusions.
[47]	I consider each of the three assertions set out in the three paragraphs of s 190B(5) in turn in my reasons below. Where I have considered it relevant and appropriate to adopt the summaries of the material and the conclusions made by the previous delegate (of 21 February 2013), I have set them out.
Reasons for s 190B(5)(a)
[48]	This subsection requires that I be satisfied that the factual basis is sufficient to support the assertion that the native title claim group has, and its predecessors had, an association with the area of the application. It is not necessary for the factual basis to support an assertion that all members of the native title claim group have an association with the area all of the time. However, it is necessary that the material before the Registrar shows cumulatively an association between the whole group and the whole area of the claim—Gudjala (2007) at [51] and [52]. Further, Dowsett J also observed:
Similarly, there must be evidence as to such an association between the predecessors of the whole group and the area over the period since sovereignty—at [52].
[49]	Attachment F (not amended from the original) provides a summary of the research and evidence conducted in relation to the application area and the Ngurra Kayanta native title claim group. The Calderwood reports also deal extensively with the previous and current association of the native title claim group with the area covered by the application; the later report dealing particularly with these details as they pertain to each descent line. 
[50]	The report further provides a number of genealogies at Attachment D and a map at Attachment B entitled Family Country Map. There are 28 genealogies showing the descendents of each of the ancestors named in Attachment A illustrating up to 6 generations. Explanations for each of the genealogies are provided in the later Calderwood report at paragraphs 14 through to 21. They are grouped into 9 family groups.
[51]	The ‘country’ (and areas of association) of these 9 family groups extend across and beyond the boundaries of the Ngurra Kayanta claim and are illustrated in the map by a series of 9 different coloured boundaries (that intersect and overlap each other) representing each of the family groupings. Reference back to the report against each of the family groupings confirms the basis of that association and connection with their country (inside and outside of the boundary of the Ngurra Kayanta claim) for each family group and for each genealogy – being through such things as long term association with the area, birth in or proximate to the area and the ancestral ngurra (country) connection of parent, grandparents, great grandparents and so on. The living descendents of the apical ancestors are said to live in the surrounding towns and communities with many having worked on the pastoral stations in the region, all of which has served to maintain their connection to and active association with the significant sites and locations in the Ngurra Kayanta claim area.
[52]	The previous delegate set out a summary of the factual basis provided in support of the association condition as follows, reaching the conclusion that it met the requirements:
The claimants factual basis material in support of the assertion at s. 190B(5)(a)
Attachment F sets out the following information in relation to the Ngurra Kayanta claimants’ past and present association with the claim area:
•	the native title claim group members have a close connection or association with the claim area including through their own birth or conception, or the birth or conception of their ancestors, through Tjukurrpa (dreaming) totems [some of which are listed at paragraph 46 of Attachment F] and status within the customary Law and through realisation of personal responsibilities to country – at [43].
•	This connection involved and, at all relevant times has continued to involve, the following elements:
Spiritual
•	the beliefs of the members of the claim group (as people of the WDCB, the society of which the Ngurra Kayanta are part of) that the Tjukurrpa are responsible for the existence and form of the landscape, and continue to be a presence or influence in the claim area and associated with it;
•	the ceremonial and ritual life of the claim group members in relation to the Tjukurrpa;
•	the responsibility of the claim group members to protect places within the claim area associated with the Tjukurrpa;
•	the responsibility of the claim group members to prevent the improper disclosure of beliefs and practices which relate to places associated with the claim area – at p45].
Physical
Claim group members and their predecessors:
•	had and continue to have a presence on the claim area (some senior members were living a wholly traditional lifestyle within the claim area up to the 1950’s and some members have lived for varying lengths of time on the application area up to and including the present);
•	used and continue to use the resources of the claim area;
•	protected and maintained and continue to protect and maintain places on the claim area;
•	transmitted and continue to transmit knowledge about the land and waters in the claim area from senior/elder members to younger members, including children – at [47] and [48].
Claim group members carry out the activities set out in Attachment G at paragraph 69.
Historical
The ‘considerable time, depth of the spiritual, physical, (customary) legal, economic and social elements of connection maintained by the claim group members and their predecessors’ within the claim area – at [49].
Customary legal
The status which the claim group members have in respect to the claim area and their relationship with it as the ‘proper’ people in relation to important and significant sites in the claim area, the spiritual features of the claim area and more generally the claimed land and waters – at [50].
Economic
Claim group members are entitled by their law and custom to visit and utilise the resources of the claimed land and waters without any limitation, including for sustenance, trade and exchange and otherwise for their benefit – at [51].
Social
The relationship between people and people (kinship), people and ‘country’ and through intrinsic associations of both people and ‘country’ with Tjukurrpa – at [52].
The CDNTS submissions and the anthropological report provide further information and examples in relation to the claim group members’ current association with the claim area, noting that despite no longer residing within the claim area, claim group members continue to make forays into the claim area including for the purposes of hunting and visiting sites of significance. 
In relation to the association of the claim group’s predecessors at sovereignty (being 1829 in Western Australia) the CDNTS submissions state at [16] – [26] that 
•	due to its remoteness and its harsh environment, the claim area has never been the subject of European settlement;
•	first European contact in the claim area may have occurred in 1873 or 1874 when Colonel Warburton may have travelled through the claim area on his journey from Adelaide to Roebourne; his journals do not record any information about any encounter with Aboriginal people in the claim area; in 1896-97 explorer David Carnegie conducted an expedition through the claim area; based on his journal and oral evidence he received assistance from Aboriginal people; accordingly at least one direct ancestor (a man named Loa Loa) of one of the living claim group members ([Claimant 3]) was in occupation of the claim area at the time of first recorded European contact; and
•	according to some of the claimant affidavits (details of which are reproduced in the CDNTS submissions), some of the ancestors of claim group members were physically associated with the claim area in the period between the first recorded European contact and the period in which senior claim group members were born within the claim area.
The CDNTS submissions further state at [22] that the association of the predecessors of the Ngurra Kayanta with the claim area in the period between sovereignty and first European contact can be inferred for the following reasons:
•	based on research conducted to date, there are no written records in relation to the claim area for the period between sovereignty and when Colonel Warburton is believed to have traversed the claim area in 1873-74;
•	the first recorded contact between explorer Carnegie and an ancestor of the claim group occurred in 1896-97;
•	there is no evidence which suggests that the predecessors of the claim group were not associated with the claim area at sovereignty or in the period between sovereignty and first recorded European contact.
The claimant affidavits and the anthropological report (including by quoting from the affidavits) provide numerous references to places within the claim area to which current claim group members have, and their predecessors had, an association with, such as Kurtal, a waterhole with the non-indigenous name Helena Springs in the middle of the claim area, Jalyirr, the Lady Edith Lagoon in the north of the claim area and the outstation with the same name, Winpipulpa, located in the southeast corner of the claim area and Mulyuwarkul (Forebank Hills), located in the western portion of the claim area. In addition, the anthropological report at [5.17] reproduces a map drawn by claimant [Claimant 2] which details the name and physical location of each of the waterholes he followed when walking around the central portion of the claim area as a small boy.
Consideration
The above quoted material possesses sufficient geographical particularity to support an assertion of an association held by the claim group members and their predecessors with locations within this claim area.
The material demonstrates that the association had, and continues to have, both a physical and spiritual aspect as well as other elements.
The material further demonstrates that at least some of the ancestors listed in Schedule A were associated with the claim area around the time of first recorded European contact. The information before me, in my view, allows me to make the inference that the situation at first recorded European contact was the same as that at sovereignty. On that basis, I am of the view that the material supports the assertion that at least some of the ancestors had an association with the claim area around the time of European settlement.
I am further of the view that the material before me is sufficient to support an assertion of an association between the whole group by providing some tangible examples, originating from some members of the claim group, of how the whole group and its predecessors have been associated with the area over the period since sovereignty.
Consideration
[53]	In Gudjala 2007 Justice Dowsett considered that in assessing the factual basis material, it was necessary for the Registrar to address ‘the relationship which all the members claim to have in common in connection with the relevant land’—at [40]. Further to this, the facts alleged must ‘support the claim that the identified claim group (and not some other group) held the identified rights and interests (and not some other rights and interests)’—at [39]. The factual basis material should therefore provide information that pertains to the identity of the native title claim group, the predecessors of the group and the nature of their association with the area of the application.
[54]	In my view, the previous delegate’s summary of the factual basis material for the claim in the original application is both clear and accurate and I consider that the material is sufficient to demonstrate the association of members of the claim group and its predecessors. It is clear to me on my reading of the material that there is a clear link between the current claim group’s, and its predecessors’, association with the application area to be found in the application and the Calderwood reports. Further, the extensive personal detail in the affidavits of the 4 members of the native title claim group provide particular evidence in support of the broader concepts outlined in the Calderwood reports. All of the information before me demonstrates the claim group’s connection to the land and waters of the application area through birth, descent, long term association and/or ancestral connection to that area. In this way it is clear that this current association has its origins in the preceding generations’ association with the area.
[55]	For these reasons I am satisfied that the native title claim group has, and its predecessors had, an association with the area.
Reasons for s 190B(5)(b)
[56]	This subsection requires that I be satisfied that the material before me provides a sufficient factual basis for the assertion that there exist traditional laws acknowledged and customs observed by the native title claim group and that these give rise to the native title rights and interests it claims.
[57]	In Gudjala 2007, Dowsett J considered that the factual basis materials for this assertion must demonstrate:
•	that the laws and customs currently observed by the claim group have their source in a pre–sovereignty society and have been observed since that time by a continuing society—at [63];
•	the identification of a society of people living according to a system of identifiable laws and customs, having a normative content, which existed at the time of sovereignty—at [65] and see also at [66]; and
•	the link between the claim group described in the application and the area covered by the application, ‘identifying some link between the apical ancestors and any society existing at sovereignty’—at [66]
[58]	In the context of the registration test (and explicitly the task at s 190B(5)(b)), there must be factual material capable of supporting the assertion that there are ‘traditional’ laws and customs acknowledged and observed by the native title claim group, and that they give rise to the claimed native title rights and interests—Gudjala 2007 at [62] and [63]. In my view, there is sufficient factual account in the application and Calderwood reports to support the proposition, that under the traditional laws and customs of the claim group, there exist rights and interests that relate to the land and waters of the area covered by the application. 
[59]	The previous delegate summarised the material before her in relation to the nature of the society of which the native title claim group is, and its ancestors were, a part, reaching the conclusion that this requirement was met:
The claimants factual basis material in support of the assertion at s. 190B(5)(b)
Attachment F at [53] describes the normative society of which the claim group are said to be a part of as the WDCB. 
As noted above, the claim area is completely encompassed by 5 areas where native title has been determined to exist on the basis that the Native Title holding groups form part of the WDCB system. The anthropological report at [2.9] states in this regard that ‘[i]t is both ethnographically consistent and anthropologically inconceivable that the Ngurra Kayanta claim area is located outside the WDCB’. 
Attachment F further states that
•	as members of the WDCB the claim group  are governed by a functioning set of laws, rules, customs, practices and beliefs that allow the claim group members to live their daily lives according to shared physical, social and cultural norms – at [53]. 
•	the fundamental belief system of the people of the WDCB is that of the Tjukurrpa which, relevantly, provides a moral, social and judicial guide to everyday life and lays down the rules or principles by which members of the claim group relate to and conduct themselves in relation to the claimed land and waters – at [54].
The traditional laws and customs acknowledged and observed by the people of the WDCB, including by the claim group members, are said to 
•	be given normative force by widespread commitment to the Tjukurrpa and the high value placed upon the sacred amongst the people of the WDCB and a fear of being ostracised or otherwise punished (including socially and/or physically) for breach of the laws and customs – at [56];
•	include rules and principles for the recognition of a person as holding rights and interests in relation to an area and as to the nature and extent of the rights and interests held by a person – at [58].
The nature and extent of rights and interests exercisable by a person in relation to an area and the seniority and authority of the person relative to other persons in relation to such rights and interests is said at [59] and [60] to depend upon the following:
•	having one’s birth, conception or initiation site on the claim area;
•	having a birth or burial site of an ancestor on the claim area;
•	having religious, sacred, ritual, practical and/or historical knowledge of the claim area (including by taking responsibility for the area, passing on sacred knowledge about the area and places in it under approved circumstances and looking after sacred objects relating to places within the claim area, being present at ritual engagements relating to places within the claim area; and accepting and asserting the roles of cultural heritage protection, landscape management and site custodianship);
•	length of association with and/or generation or time depth of identification with the claim area through occupation or use by one’s self and/or relevant kin; and
•	asserting connection with the claim area and having that assertion accepted by others.
The CDNTS submissions further state at [29] in relation to the specific laws and customs which give rise to native title rights and interests, the WDCB is characterised by the ‘multiple pathways’ model of connection to country. This model is said to have been recognised by French J (as he then was) in Billy Patch & Ors on behalf of the Birriliburu People v State of Western Australia [2008] FCA 994. In relation to the Birriliburu People, also members of the WDCB, His Honour stated at [20] that 
[t]he association of individuals and groups with particular areas of country comes about through a variety of mechanisms. These include conception, birth, growing up or initiation on the country, acquisition of knowledge through long residence or descent from a person who has had such a connection. Landholding groups are not patrileneally-patrilocally structured. The members of the groups are landholding through their shared association with and to the land. The groups are open and inclusive so people have potential access to a number of areas through the mechanisms mentioned above.
At [34] the CDNTS submissions stress that 
[s]ignificantly, the pathways to connection (and therefore native title rights and interests) do not require those who currently hold native title to be biologically descended from those who occupied the claim area at sovereignty. The members of the Ngurra Kayanta claim group place an emphasis upon birth within the claim area, either of oneself or of one’s ancestor, as a means of acquiring connection, however, the emphasis upon this particular pathway does not mean that the other pathways to connection which arise under the traditional law and custom of the WDCB do not still hold meaning and are not still observed. 
Research is said to have identified a number of claim group members who acquired native title rights and interests to the claim area through non-descent-based pathways, specifically through the possession of ritual knowledge and/or authority – at [36].
At [61] Attachment F sets out other elements of the traditional laws and customs acknowledged and observed by the people of the WDCB in relation to:
•	the imposition of sanctions for wrongful presence on or use of country by strangers and for wrongful presence on a site by any person in breach of cultural restrictions applicable to the site or for breach of other cultural restrictions and requirements;
•	the requirement to respect and care for spiritual features of the claimed landscape;
•	the requirements and other restrictions relating to religious and ritual objects, designs, songs, knowledge and practice;
•	the social organisation (including kinship, marriage rules, avoidance and incest taboos);
•	the identification of, and acknowledgement of and respect for senior and knowledgeable people and their authority;
•	ceremonies and rituals (restricted and unrestricted);
•	life stages (from conception to death and the avoidance of the name of the deceased person);
•	the foraging for and preparation and distribution of food, medical and other resources and the knowledge associated with these matters; and
•	beliefs in the harmful effect of sorcery and in the corrective counter-measures of wellbeing. 
The anthropological report at [2.14] states that ‘[t]he evidence is strong that the Ngurra Kayanta claim group members continue to observe the traditional normative laws and customs of the WDCB … and continue to pass on their knowledge about these laws and customs to younger generations’. Numerous probative examples in support of this statement (some quoting the claimant affidavits) are given. For example reference is made at [5.32] to [5.35] to the cleaning out of waterholes as part of ‘caring for country’ activities. The report compares current practices with the historical account of the practice recorded by explorer Carnegie in 1896-97 and concludes that the claimants continue to exercise their responsibilities to sites of cultural significance and more generally to the country that they claim connection to – at [5.58].
Further probative examples are set out in the CDNTS submissions and the claimant affidavits. 
Consideration
The above factual basis material identifies the relevant pre-sovereignty society, the WDCB, as the society of people living according to a system of identifiable laws and customs, having a normative content from whom it is asserted the claim group’s laws and customs derive. The claim group forms part of this society. The material contains detailed information regarding the claim group members’ acknowledgement and observance of the traditional laws and customs pertaining to the land and waters of the claim area.
The factual basis material further explains the link between the claim group and the claim area by reference to the ‘multiple pathways’ model.
The material describes the laws observed and customs acknowledged by current members of the group. The material suggests that these laws and customs are traditional as they have been taught to the members of the claim group by their parents and other family members and in turn were taught by previous generations.
[60]	I have reached the same conclusions and I agree with the basis for these as outlined in the previous delegate’s reasons. Based on my reading of the material before me (summarised concisely by the previous delegate as above) I am of the view that the factual basis material supports the proposition that there was a society comprised of the predecessors of the native title claim group acknowledging and observing traditional laws and customs in the area of the application at the time British sovereignty was asserted in Australia and at the time of sustained European contact. The application asserts, and this is illustrated in the material that accompanies it, that this is the society that has continued largely uninterrupted since that time. That is, the WDCB society existed at sovereignty in respect of the area covered by the application, comprised of groups affiliated with particular tracts of country, defined by its recognition of laws and customs, and from which the claim group’s current traditional laws and customs are derived (Gudjala 2009 at [66]).
[61]	Again the personal detail provided in the 4 affidavits supports and illustrates the information in the Calderwood reports such that I am satisfied that the factual basis for the claim supports that there exist traditional laws acknowledged and customs observed by the native title claim group and that these give rise to the native title rights and interests it claims.
Reasons for s 190B(5)(c)
[62]	This subsection requires that I be satisfied that there is sufficient factual basis to support the assertion that the native title claim group continues to hold native title in accordance with its traditional laws and customs.
[63]	The previous delegate referred to the information summarised in her reasons for ss 190B(5)(a) and (b) which, in her view, supported the assertion that the native title claim group continues to hold native title in accordance with their traditional laws and customs. I agree that the information is sufficient to support the assertion. Attachment F and the Calderwood reports contain many statements (some of which are summarised above) that assert the continuity of the native title claim group’s traditional laws and customs. Further, all 4 of the affidavits illustrate and, in my view, demonstrate that these laws and customs have been passed from generation to generation by traditional modes of oral transmission, teaching and common practice, and continue to be acknowledged and observed today among the current generations of the claim group.
Conclusion
[64]	I agree with the previous delegate’s summary of the relevant material and her assessment, reasoning and conclusions in respect of the factual basis for the claim made in the application. I consider the reasons applicable to the amended application because the same facts and law apply. I adopt the reasons of the previous delegate because I have reached the same conclusion and agree with the basis for her conclusions.
[65]	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.
[66]	Under s 190B(6) I must be satisfied that at least one of the native title rights and interests claimed by the native title group can be established, prima facie. I refer to the comments made by Mansfield J in Doepel about the nature of the test at s 190B(6):
•	it involves some ‘measure’ and ‘weighing’ of the factual basis and imposes ‘a more onerous test to be applied to the individual rights and interests claimed’—Doepel at [126], [127] and [132]; and
•	it is a prima facie test and ‘if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis’—Doepel at [135].
[67]	As mentioned above in relation to the requirements of s 190B(5), the registration test involves an administrative decision and is not a trial or hearing of a determination of native title pursuant to s 225. Therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing. It is not my role to draw definitive conclusions from the material before me about whether or not the claimed native title rights and interests exist, only whether they are capable of being established prima facie.
[68]	I note that, in my view, as set out above at s 190B(5), the application provides a sufficient factual basis to support the assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group that give rise to the claimed native title rights and interests. I have examined all of the factual basis material before me in respect of the assertion that the claimed native title rights and interests exist against the rights and interests claimed in the application to determine whether prima facie, they:
•	exist under traditional law and custom in relation to any of the land or waters under claim;
•	are native title rights and interests in relation to land or waters (see chapeau to s 223(1)); and
•	are rights and interests that have not been extinguished over the whole of the application area.
[69]	The native title claim group claims the right to possess, occupy, use and enjoy the land and waters of the application area to the exclusion of all others and this has not been amended since the original claim was made. The legal submissions set out the specific content of this right of exclusive possession and the information in support of the group’s claim to this right is provided throughout all of the material before me.
Consideration
The nature and extent of the native title rights and interests held by the native title claim group in the whole of the application area (including any areas where extinguishment must be disregarded pursuant to sections 47, 47A and 47B of the NTA) is the right to possess, occupy, use and enjoy the land and waters of the application area to the exclusion of all others.
[70]	The majority decision of the High Court in Western Australia v Ward (2002) 213 CLR 1; (2002) 191 ALR 1; [2002] HCA 28 (Ward HC) considered that ‘[t]he expression “possession, occupation, use and enjoyment ... to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land‘. Further, it considered that the expression (as an aggregate) conveys ‘the assertion of rights of control over the land’ which necessarily flow ‘from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country’—at [89] and [93]. Ward HC is authority that, subject to the satisfaction of other requirements, a claim to exclusive possession, occupation, use and enjoyment of lands and waters can be established, prima facie.
[71]	Further, the nature of exclusive possession was considered by the Full Court of the Federal Court in Griffiths v Northern Territory of Australia [2007] FCAFC 178 (Griffiths). In that instance, the Court found a claim to exclusive possession, use or occupation did not require demonstration that a native title claim group could exclude people from their country in a manner analogous to a proprietary right of exclusion. Rather the Court found that:
'The relationship to country is essentially a "spiritual affair" ... The question of exclusivity depends upon the ability of [a native title claim group] to effectively exclude from their country people not of their origin'—at [127].
[72]	Such effective exclusion is determinable by reference to the content of traditional law and custom. In the specific facts of Griffiths, the Court found that the traditional laws and customs of the native title holders included spiritual sanction being visited upon unauthorised entrants to country. The Court further found that through the relevant law and custom, the native title holders were the 'gatekeepers' for the purposes of preventing such harm and avoiding injury to country. On this basis the Court found that exclusive possession was held by the native title holders—at [127].
[73]	The previous delegate was satisfied that this right is prima facie established because it was evidenced in the material before her. The basis for her conclusion is as follows:
The CDNTS submissions at [50], under the heading ‘Access, use, control and decision-making – the basis of exclusive possession, use and occupation’, state that for members of the WDCB, including the Ngurra Kayanta claimants, the right to receive or give permission to access country is a fundamental aspect of the acknowledgement of land ownership. The CDNTS submissions quote from the claimant affidavits, giving probative examples, in support of this assertion.
Further, the anthropological report, under the heading ‘Ownership of country and the requirements to request permission’ at [4.14] to [4.30], sets out further relevant information and examples in support of the existence of the claimed right in the claim area, including:
•	statements set out in the claimant affidavits such as a statement made by claimant [Claimant 2] in his affidavit of 6 October 2012:
If someone from another place like Wyndam, wants to go to Jalyirr or Kurtal, they can’t just go. They have to ask the elder. I can’t just go to Kiwirrkurra country either. I got to ask, or get in trouble, it is another country. You not the big boss, you make him mad, he sing you. You got to stay in your country, that’s the rules. No easy blackfella way, not like kartiya [white people] walking anywhere. Our rule – don’t go over the boundary! Stay in your country, or they kill you or sing you, make you mad – at [4.18];
•	statements made by claim group members to the author of the report during field work on country – at [4.19] – [4.21] ;
•	related research in relation to other groups which form part of the WDCB in relation to ownership of country and associated requirements – at [4.24] and [4.25].
The anthropological report at [4.23] concludes that ‘[i]t is apparent that claimants continue the practice of asking for and receiving of permission to enter another’s country, and continue to expect that visitors to their country will receive permission from the claimants. With the advancement of technology… telephones are now the preferred medium rather than smoke [signals], as an evolution of the traditional system’. 
The CDNTS submissions also state at [55] that the claim group members exercise their right to control the use of resources by others. 
Based on the information before me I understand that the claim area is not subject to previous extinguishment of native title (either because there were no extinguishing acts or because extinguishment is to be disregarded as a result of the Act due to the tenure of the claim area).
On the basis of the information before me I am of the view prima facie, that the claim group members exercise the exclusive right of possession, occupation, use and enjoyment in relation to the application area
[74]	I have considered the same material in the legal submissions made in respect of both the original and amended applications, the information provided in Attachment F, the Calderwood reports and that which is attested to in the affidavits of the 4 members of the native title claim group. I agree with the previous delegate’s summary of the material and her assessment, reasoning and conclusions in respect of evidence provided to establish prima facie the right to exclusive possession. I consider the reasons applicable to the amended application because the same facts and law continue to apply. I adopt the reasons of the previous delegate because I have reached the same conclusion and agree with the basis for her conclusions.
[75]	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.
[76]	Under s 190B(7), I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. This condition ‘can be seen as requiring some measure of substantive (as distinct from procedural) quality control upon the application’—Gudjala FC at [84].
[77]	In Doepel, Mansfield J also considers the nature of the Registrar’s task at s 190B(7):
Section 190B(7) imposes a different task upon the Registrar. It does require the Registrar to be satisfied of a particular fact or particular facts. It therefore requires evidentiary material to be presented to the Registrar. The focus is, however, a confined one. It is not the same focus as that of the Court when it comes to hear and determine the application for determination of native title rights and interests. The focus is upon the relationship of at least one member of the native title claim group with some part of the claim area. It can be seen, as with s 190B(6), as requiring some measure of substantive (as distinct from procedural) quality control upon the application if it is to be accepted for registration—at [18].
[78]	Schedule M of the application refers to Attachment M which sets out information about the native title claim group having lived on, and in the vicinity of, the application area. The outstation known as Jalyirr was established in the 1980s and continues to be used as a semi-permanent camp by members of the native title claim group. As evidenced in all of the affidavits and in the Calderwood reports, they continue to visit many areas within the area covered by the application and to carry out various traditional activities associated with ‘looking after country’ and in exercise of their claimed native title rights and interests.
[79]	Sufficient material is provided to show that, in their acknowledgement and observance of the WDCB traditional laws and customs, members of the native title claim group have a traditional physical connection with the land and waters of the application area. The material is referred to and quoted extensively in the consideration above for both ss 190B(5) and 190B(6). I am satisfied that at least one member of the claim group currently has a traditional physical connection with parts of the application area.
[80]	The application satisfies the condition of s 190B(7).
Subsection 190B(8)
No failure to comply with s 61A
The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.
Section 61A provides:
(1)	A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
(2)	If:
(a)	a previous exclusive possession act (see s 23B) was done in relation to an area; and
(b)	either:
(i)	the act was an act attributable to the Commonwealth; or
(ii)	the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in s 23E in relation to the act;
a claimant application must not be made that covers any of the area.
(3)	If:
(a)	a previous non-exclusive possession act (see s 23F) was done in relation to an area; and
(b)	either:
(i)	the act was an act attributable to the Commonwealth, or
(ii)	the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in s 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others
(4)	However, subsection (2) or (3) does not apply to an application if:
(a)	the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and
(b)	the application states that section 47, 47A or 47B, as the case may be, applies to it.

[81]	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)
[82]	Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. The geospatial report dated 13 May 2015 and a search that I have made of the Tribunal’s geospatial databases on the day of my decision confirms that there are no approved determinations of native title over the area covered by the application.
Section 61A(2)
[83]	Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply. Schedule B at paragraphs 9(c) and (d) provide the relevant statements that the application excludes any area where a previous exclusive possession act was done in relation to the area covered by the application.
Section 61A(3)
[84]	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. The application, at Schedule L, claims the benefit of ss 47A and 47B such that any extinguishment of native title is required to be disregarded, specifically in relation to the areas of Crown Land and Aboriginal Reserve which comprise the area covered by the application. In my view, for the purposes of registration, a claim made in an application to the benefits of the non-extinguishment provisions of the Act does not contradict the requirements of this condition.
Conclusion
[85]	In my view the application does not offend the provisions of ss 61A(1), 61A(2) and 61A(3) and therefore the application satisfies the condition of s 190B(8).
Subsection 190B(9)
No extinguishment etc. of claimed native title
The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that:
(a)	a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or
(b)	the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or
(c)	in any case, the native title rights and interests claimed have otherwise been extinguished, except to the extent that the extinguishment is required to be disregarded under ss 47, 47A or 47B.
[86]	I consider each of the subconditions of s 190B(9) in my reasons below.
Section 190B(9)(a)
[87]	Schedule Q contains the requisite statement that no claim is made of ownership of minerals, petroleum or gas that are wholly owned by the Crown.
Section 190B(9)(b)
[88]	Schedule P provides the statement that no offshore places comprise any part of the area covered by the application.
Section 190B(9)(c)
[89]	There is no information in the application or otherwise to indicate that any native title rights and/or interests in the application area have been extinguished.
Conclusion
[90]	In my view the application does not offend the provisions of ss 190B(9)(a), (b) and (c) and therefore the application meets the condition of s 190B(9).

Procedural and other conditions: s 190C
Subsection 190C(2)
Information etc. required by ss 61 and 62
The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. 
[91]	The application satisfies the condition of s 190C(2), because it contains all of the details and other information and documents required by ss 61 and 62, as set out in my reasons below. 
[92]	This condition of registration is procedural only and simply requires the Registrar to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s 190C(2)—Doepel at [16] and also at [35] to [39]. 
[93]	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)
[94]	Section 190C(2) ‘directs attention to the contents of the application and supporting affidavits’ and ‘seeks to ensure that the application contains ‘all details’ required by s 61’. It is the Registrar’s task ‘to consider whether the application sets out the native title claim group in the terms required by s 61’; this being ‘one of the procedural requirements to be satisfied to secure registration: s 190A(6)(b)—Doepel at [35] and [36]. Particularly:
If the description of the native title claim group were to indicate that not all the persons in the native title claim group were included, or that it was in fact a sub-group of the native title claim group, then the relevant requirement of s 190C(2) would not be met and the Registrar should not accept the claim for registration—Doepel at [36].
[95]	The details relevant to my consideration at this condition are set out in the application at Part A, 1 and 2 and at Schedules A and R. There is nothing on the face of the application that suggests that the application is not brought on behalf of all members of the native title claim group and I am satisfied that the application meets the requirements of this condition.
[96]	The application contains all details and other information required by s 61(1).
Name and address for service: s 61(3)
[97]	Part B of the application states on page 13 the name and address for service of the persons who are the applicant. 
[98]	The application contains all details and other information required by s 61(3).
Native title claim group named/described: s 61(4)
[99]	Schedule A refers to Attachment A which provides a description of the persons who comprise the native title claim group.
[100]	The application contains all details and other information required by s 61(4).
Affidavits in prescribed form: s 62(1)(a)
[101]	Affidavits addressing the requirements of s 62(1)(a) were part of the original application filed in the Court on 21 December 2012. Each of the nine persons who comprise the applicant have signed an affidavit swearing or affirming, in full, to all the statements required of this section. The composition of the applicant has not been amended and therefore raises no issues in regarding ongoing compliance with the requirements of this condition.
[102]	I consider this amended application to be accompanied by the original affidavits. They are signed and witnessed and variously dated 15 August 2012 and 12 September 2012. 
[103]	The application is accompanied by the affidavit required by s 62(1)(a).
Details required by s 62(1)(b)
[104]	Subsection 62(1)(b) requires that the application contain the details specified in ss 62(2)(a) to (h), as identified in the reasons below.
Information about the boundaries of the area: s 62(2)(a)
[105]	Schedule B provides a list of exclusion statements for those areas not covered by the application and refers to Attachment B for the description of the external boundaries of the area covered by the application which is a metes and bounds description of those geographical external boundaries.
Map of external boundaries of the area: s 62(2)(b)
[106]	Schedule C refers to Attachment C being a map showing the external boundaries of the area covered by the application.
Searches: s 62(2)(c)
[107]	Schedule D refers to Attachment D which provides details of non-native title rights and interests in relation to the area covered by the application.
Description of native title rights and interests: s 62(2)(d)
[108]	Schedule E provides a description of the native title rights and interests claimed in relation to the area covered by the application.
Description of factual basis: s 62(2)(e)
[109]	Schedule F refers to Attachment F which provides information in support of the factual basis for the claim made in the application and refers to additional information in a report at Attachment T to the application.
Activities: s 62(2)(f)
[110]	Schedule G refers to Attachment G for information on the activities the claim group currently carries out in relation to the area covered by the application.
Other applications: s 62(2)(g)
[111]	Schedule H provides the statement that the area covered by the application is not covered by any other such applications.
Section 24MD(6B)(c) notices: s 62(2)(ga)
[112]	Schedule HA provides the statement that the applicant is aware of no such notices made in relation to the whole or part of the area covered by the application.
Section 29 notices: s 62(2)(h)
[113]	Schedule I refers to Attachment I which provides details of such notices having been given in relation to the area covered by the application between 1999 and 2012.
Conclusion
[114]	The application contains the details specified in ss 62(2)(a) to (h), and therefore contains all details and other information required by s 62(1)(b).
Subsection 190C(3)
No common claimants in previous overlapping applications
The Registrar/delegate must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if:
(a)	the previous application covered the whole or part of the area covered by the current application, and
(b)	the previous application was on the Register of Native Title Claims when the current application was made, and
(c)	the entry was made, or not removed, as a result of the previous application being considered for registration under s 190A.
[115]	The requirement that the Registrar be satisfied in the terms set out in s 190C(3) is only triggered if there is a previously registered claim in relation to the area covered by the application before me, as described in ss 190C(3)(a), (b) and (c)—Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC) at [9]. Section 190C(3) relates to ensuring there are no common native title claim group members between the application currently being considered for registration (‘the current application’) and any overlapping ‘previous application’ that is a registered application when the current application was made in the Court. 
[116]	The Tribunal’s geospatial report identified that as at 13 May 2015 no native title determination applications fell within the external boundaries of the current application. A search of the geospatial datasets on the day I made my decision reveals that the Ngurra Kayanta 2 native title determination application (WAD326/2015) was filed on 30 June 2015. Although this new application covers all of the area covered by the Ngurra Kayanta application before me, it is not a previous application as it had no entry on the Register at the time the current application was made.
[117]	As the Ngurra Kayanta application is not overlapped by any previous application (as defined by the conditions of s 190C(3), the requirement that I consider the issue of common claim group membership does not arise.
[118]	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.
Under s 190C(4A), the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected where, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect I must be satisfied that the requirements set out in either ss 190C(4)(a) or (b) are met, in order for the condition of s 190C(4) to be satisfied. 
[119]	For the condition of s 190C(4) to be satisfied, I must be satisfied that the requirements set out in either ss 190C(4)(a) or (b) are met. Schedule R refers to Attachment R which comprises a certification made by Central Desert Native Title Services (CDNTS). As the application purports to be certified by the representative body for the area, the relevant consideration for me is at s 190C(4)(a).
The nature of the task at s 190C(4)(a)
[120]	Section 190C(4)(a) imposes upon the Registrar conditions which, according to Mansfield J, are straightforward—Doepel at [72]. All that the task requires is that I be ‘satisfied about the fact of certification by an appropriate representative body’ which necessarily entails:
•	identifying the relevant native title representative body (or bodies) and being satisfied of its power under Part 11 to issue the certification; and
•	being satisfied that the certification meets the requirements of s 203BE—Doepel at [80] and [81].
[121]	Pursuant to s 203BE(4), a written certification by a representative body must:
•	include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs of s 203BE(2)(a) and (b) have been met; 
•	briefly set out the body’s reasons for being of that opinion; and
•	where applicable, briefly set out what the representative body has done to meet the requirements of s 203BE(3) in relation to any overlapping applications.
[122]	Pursuant to s 203BE(2), a ‘representative body must not certify ... an application for a determination of native title unless it is of the opinion that’:
•	all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and
•	all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.
Identification of the representative body 
[123]	The Tribunal’s geospatial report of 13 May 2015 confirms that CDNTS is the only representative body for the whole of the area covered by the application. It is therefore the only body that could certify the application under s 203BE.
[124]	The certificate states that the statements and reasons that follow are made pursuant to s 203FEA(1), that is CDNTS is funded to perform all the functions of a representative body pursuant to s 203FE(1)—at [1]. The certificate is dated 29 April 2015 and is signed by the Chief Executive Officer for CDNTS.
Does the certificate meet the requirements of 203BE
[125]	For the purposes of s 203BE(4)(a), the certificate contains statements in relation to the requirements of paragraphs 203BE(2)(a) and (b), that is CDNTS certifies:
•	that all the persons in the native title claim group have authorised Helicopter Tjungarrayi, Bartholomew Baadjo, Jane Bieundurry, Sandra Brooking, Darren Farmer, Eugene Laurel, Rita Minga, Frances Nanguri, Richard Yugumbarri (the applicant) to file the Ngurra Kayanta claim to deal with all matters arising in relation to the application ; and
•	that all reasonable efforts have been made to ensure the application describes or otherwise identifies all the other persons in the native title claim group—at [2] and [3].
[126]	For the purposes of s 203BE(4)(b), the certificate briefly sets out the reasons for CDNTS being of that opinion, namely:
•	CDNTS and Ngaanyatjarra Council Native Title Unit (its predecessor) have provided legal and anthropological services in the area covered by the application since 1996, with CDNTS satisfied that the anthropologists who have worked with the native title claim group have made all reasonable efforts to ascertain and identify all the members of the group;
•	staff members of CDNTS have attended various meetings of the native title claim group and thereby observed the decision-making process it follows and taken instructions as result of that process; and
•	CDNTS is confident that the requirements for authorisation have been met with the applicant authorised to make and deal with the application in accordance with the native title claim group’s mandated traditional decision-making processes.
[127]	In my view, the statements made in the certificate, as summarised above, are sufficient for it to be said that the certificate briefly sets out the reasons for CDNTS being of the opinion that the requirements of s 203BE(2)(a) and (b) have been met.
[128]	For the purposes of s 203BE(4)(c), the representative body must also briefly set out how it has met the requirements of s 203BE(3). That subsection provides for a representative body’s obligations to make all reasonable efforts to reach agreements between any overlapping claimant groups and to minimise the number of overlapping applications. In my view, given the only overlapping application is the second Ngurra Kayanta application (WAD326/2015), there is no requirement for the certificate to address this provision.
[129]	I am satisfied that the application has been certified under Part 11 by the representative Aboriginal/Torres Strait Islander body that could certify the application, thereby complying with s 190C(4)(a).

[End of reasons]

Attachment A
Information to be included on the Register of Native Title Claims
Application name	Ngurra Kayanta	
NNTT file no.	WC2012/013	
Federal Court of Australia file no.	WAD410/2012	
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
Date application filed/lodged:
21 December 2012
Date application entered on Register:
21 February 2013
Applicant:
As per Schedule
Applicant’s address for service:
As per Schedule
Area covered by application:
As per Schedule
Persons claiming to hold native title:
As per Schedule
Registered native title rights and interests:
As per Schedule
Attachments
1. Attachment A - Claim Group Description, 2 pages - A4, 06/05/2015
2. Attachment B - Identification of Boundaries, 1 page - A4, 06/05/2015
3. Attachment C - Map of Claim Area, 1 page - A4, 06/05/2015