Registration test decision

Application name	Kunja People	
Name of applicant	Ronald McKellar, Maureen McKellar, Gertrude Darrigo,
June Derrick, Rhyannon Meredith, Stephen Howarth, 
John Barker	
NNTT file no.	QC2015/008	
Federal Court of Australia file no.	QUD598/2015	
Date application made	17 July 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:	19 November 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. 

Edited Reasons for decision
Introduction
[1]	The Registrar of the Federal Court of Australia (the Court) gave a copy of the Kunja People claimant application (QUD598/2015) to the Native Title Registrar (the Registrar) on 17 July 2015 pursuant to s 63 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]	Given that the claimant application was made on 17 July 2015 and has not been amended, I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply.  I have reached the view that the claim in the application must be accepted for registration and this document sets out my reasons, as the delegate of the Registrar, for my decision not to accept the claim for registration pursuant to s 190A of the Act. 
Application overview and background
[4]	The area covered by the application is in southern Queensland with NSW border forming its southern boundary. The area includes the town of Cunnamulla at its centre, numerous pastoral holdings and the waterways of the Warrego River.
Information considered when making the decision
[5]	Section 190A(3) sets out the information to which the Registrar must have regard in considering a claim under s 190A and provides that the Registrar ‘may have regard to such other information as he or she considers appropriate’.
Subsection 190A(3)(a): Application and other documents provided by the applicant
[6]	As required, I have had regard to information in the application and its accompanying attachments. 
Subsection 190A(3)(b): Searches conducted by the Registrar of State/Commonwealth interest registers
[7]	I note that there is no information before me of the kind identified in s 190A(3)(b). 
Subsection 190A(3)(c): Information supplied by Commonwealth/State
[8]	The State of Queensland (the state government) has not provided any submissions in relation to the application of the registration test.
Section 190A(3): other information to which Registrar considers it appropriate to have regard
[9]	I have also considered information contained in an overlap analysis and geospatial assessment by the Tribunal’s Geospatial Services dated 27 July 2015 (the geospatial report).

Merit conditions: s 190B
Subsection 190B(2)
Identification of area subject to native title
The Registrar must be satisfied that the information and map contained in the application as required by ss 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters
Description of the area covered by the application
[10]	Schedule B refers to Attachment B for the area that is covered by the application and lists 2 general exclusions to describe those areas not covered by the application. Attachment B contains a metes and bounds description entitled “Kunja People External Boundary Description”, prepared by Queensland South Native Title Services (QSNTS) on 19 June 2015, and refers to surrounding Native Title Determinations; state borders; land parcels; topographic features; and coordinate points (shown to six decimal places referencing GDA94). 
[11]	Schedule C refers to a map attached as Attachment C which is a map entitled “KUNJA PEOPLE – Native Title Determination Application” and is dated 03/06/2015. The map was also prepared by QSNTS and includes the application area depicted by a bold blue outline with stippled fill; 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.
Consideration
[12]	The information in relation to the external boundaries of the area covered by the application allows me to identify the location and extent of those boundaries. For the purposes of meeting the requirements of this condition the two general exclusion statements at Schedule B are, in my view, sufficient to offer an objective mechanism by which to identify areas that would fall within the categories described, and thereby be excluded from the application.
[13]	The geospatial report makes the assessment that the description and the map are consistent with each other such that the area covered by the application is readily identifiable. I agree with that assessment. I am therefore satisfied that the external boundary of the area covered by the application is identifiable and, along with the general exclusions, that it can be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
[14]	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.
[15]	Schedule A of the application does not name the persons in the native title claim group but contains a description of that group, being the basis for its composition. It is therefore necessary to consider whether the application satisfies the requirements of s 190B(3)(b). I note the comments of Mansfield J in Northern Territory v Doepel (2003) 133 FCR 112; (2003) 203 ALR 385; [2003] FCA 1384 (Doepel) that the focus of s 190B(3)(b) is:
•	whether the application enables the reliable identification of persons in the native title claim group—at [51]; and 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].
[16]	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].
[17]	The description of the native title claim group at Schedule A is as follows:
The Kunja People are the descendants of:
1.	Killamunda (including her children, Margaret Turner (Granny McKellar), Annie/Nannie Widgell and Jack Brennan);
2.	Flora Maranoa;
3.	Maria Major (including her children, Jack Oliffe, Ron Wyman, Walter Wyman and Lila Lynett); and
4.	Jimmy Nyngan,
in accordance with Kunja traditional laws and customs.
[18]	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. I understand that a person will be a member of the native title claim group based on descent through the ancestral lines identified. 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 that the group had not been sufficiently described.
[19]	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.
[20]	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].
[21]	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):
1.	Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title and / or where ss 47, 47A, 47B or 238 apply), the Kunja People claim the right to possess, occupy, use and enjoy the lands and waters covered by the application (the application area) as against the whole world.
2.	Over areas where a claim to exclusive possession cannot be recognised, the Kunja People claim the following rights and interests:
(a)	the right to access and be present on 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 on 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 take, use and keep the natural resources, including waters, on the application area;
(i)	the right to fish on the application area;
(j)	the right to conduct ceremonies on the application area;
(k)	the right to conduct burials on the application area;
(l)	the right to participate in cultural activities on the application area;
(m)	the right to maintain and protect places of importance under traditional laws, customs and practices in the application area;
(n)	the right to control access to, and use of, the application area by other Aboriginal People or Torres Strait Islanders who seek access to or use of the lands and waters in accordance with traditional laws and customs.
[22]	The rights have been clearly and comprehensively described in a way that is meaningful and understandable, having regard to the definition of the expression ‘native title rights and interests’ in s 223. The description is therefore, in my view, sufficient to allow the native title rights and interests claimed to be readily identified.
[23]	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
[24]	For the application to meet this merit condition, I must be satisfied that a sufficient factual basis is provided to support the assertion that the claimed native title rights and interests exist and to support the particularised assertions in paragraphs (a) to (c) of s 190B(5). In Doepel, Mansfield J stated that:
Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the `factual basis on which it is asserted’ that the claimed native title rights and interests exist `is sufficient to support the assertion’. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts—at [17].
[25]	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.
[26]	Arising from these decisions are clear principles that 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].
•	the Registrar is not to consider or deliberate upon the accuracy of the information/facts asserted—Doepel at [47]. 
[27]	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. It is not 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; that is a judicial enquiry.
Information considered
[28]	Attachment F & M provides the factual basis to support the assertion that the native title rights and interests of the Kunja People native title claim group exist. This information is illustrated by and demonstrated in the statements of members of the native title claim group – in the witness statements of [Claimant #1 – name deleted] (17 July 2011) and [Claimant #2 – name deleted] (undated), and the affidavits of [Claimant #3 – name deleted] (sworn 1 October 1999), [Claimant #4 – name deleted] (sworn 7 October 1999), Maureen McKellar (sworn 7 October 1999), Gertrude Darrigo (affirmed 14 June 2015) and [Claimant #5 – name deleted] (affirmed 14 June 2015).
[29]	I consider each of the three assertions set out in the three paragraphs of s 190B(5) in turn in my reasons below.
Reasons for s 190B(5)(a)
[30]	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].
[31]	The Kunja People’s claim covers an area of land and waters centered around the Warrego River, extending from the Queensland state border, west of Tego in the south, to Wyandra in the North and Widgeegoara Creek in the north east—Attachment F & M at [1]. It includes the main center of Cunnamulla and covers a number of pastoral stations, many of which are referred to in the factual material basis – Claverton, Burrenbilla and Tinnenburra Stations.
Association of the predecessors of the native title claim group with the application area
[32]	Information in Attachment F & M identifies that first European contact with the area and its inhabitants is asserted to come from the explorer, Thomas Mitchell who recorded his meetings with Aboriginal people, their naming of the Warrego River and their practices associated with the use of country and its resources. These records are said to show contact with Aboriginal people living along the Warrego River and in the region in a systematic and governed way, camping, moving about, hunting and burning country—[5].
[33]	Sustained European settlement in the area of the application is said to have occurred in the decades after 1850, with the establishment of the pastoral stations and the major town centers. Some Aboriginal people were still observed in the 1870s to be living a traditional lifestyle away from the station homesteads and camps—[7]. Attachment F & M refers to sources for the basis on which the particular association of the Kunja People to the application area can be found: ‘various ethnographic sources’ – Curr (1886), Miller and Mathews (1895-1898), Tennant Kelly (1934) and Tindale (1940 & 1974) – as well as linguistic work (Breen (1981)) and the accounts of the ‘old people’ who were the parents and grandparents of contemporary Kunja claimants’—[8]. These sources elicit the following evidence:
•	the region of the claim was occupied by at least 4 tribes – the Gungarri, Kunja, Mardigan and Dharawala;
•	Breen’s linguistic analysis of Curr’s word list recorded the Gunya (Kunja) language around Wyandra, Charleville and Augathella;
•	Kunja language between 1895 to 1898 was associated with the area Thurulgoonia (center of the claim area) and Tinnenburra (south west corner of the claim area);
•	the name Kunja is referred to in Caroline Tennant-Kelly’s filed notes placing Kunja beyond Eulo (west of the claim area) running to Cunnamulla;
•	Tindale’s field notes of 1938-39 record interviews with Aboriginal persons identifying as Kunja, including two of the apical ancestors named at Schedule A – Flora Maranoa and Maria Major; and
•	Tindale’s maps of 1940 and 1974 show (with some variance) the extent of the boundaries of the Kunja tribe—[9] to [13].
[34]	Attachment F & M details the association of the ancestors named in the application with the claim area, in summary:
•	the children of Kitty Killamunda were born and or spent most of their lives around Eulo Tinnenburra, Cunnamulla, Quilpie; her daughter Granny McKellar is believed to have been born in 1870 at Moonjarie Waterhole (on the western boundary of the claim);
•	Flora Maranoa was born in Cunnamulla around 1883 (died 1941), her mother was identified by Tindale as an unnamed Kunja woman from Claverton Station on the Warrego River (in the north of the claim area);
•	Maria Major, described by Tindale as ‘Kunja of Warrego River near Cunnamulla’ spent her adult life on the pastoral stations along the Warrego between Cunnamulla and Wyandra, her children were born in Claverton, Coongoola, Burrenbilla;
•	Jimmy Nyngan, believed to have no descendants, was born probably at Maranoa Waterhole between 1858 and 1869, living virtually his entire adult life at Tinnenburra; he identified as one of the last kings of the Kunja, performing the last of the initiation ceremonies, was strict in maintaining tribal law, and was noted to have tribal markings on his shoulder—[19].
[35]	The affidavits and witness statements of members of the native title claim group attached to the application provide personal information that illustrate the facts outlined in Attachment F & M. [Claimant #5 – name deleted] affirms that he is Kunja through his father, a descendent of named ancestor Kitty Killamunda—at [4] to [6]. [Claimant #3 – name deleted] attests to be the grandson of Kitty Killamunda—at [3]. Tinnenburra Station was a significant centre for Kunja people during the lives of the native title claim group’s predecessors. [Claimant #2 – name deleted] recounts his memories of living on the Aboriginal camps of the pastoral stations in the first half of the 20th century, the ceremonies that were performed, traveling and working with Kunja families. Tinnenburra is considered by members of the native title claim group to be a ‘special place for Kunja people – ‘there are old camps, burial sites and relics there that are still there from when our ancestors were there’—G Darrigo at [10] and [39].
[36]	Droving and mustering allowed the predecessors of the claim group to maintain their connection to Kunja country, extending their range along the traditional areas associated with the Warrego and Paroo Rivers and the towns and stations in the northern reaches of the claim area.
•	there was connection with Barkandji people (to the south) and Budjiti people (to the west), groups with whom Kunja people would trade, have ceremonies and marry—G Darrigo at [20];
•	Granny McKellar (daughter of apical ancestor Kitty Killamunda) is said to have been a knowledgeable and fluent speaker of the Kunja language, and her descendants are able to demonstrate enduring connections through her with the claim area and wider region—at [19] of Attachment F & M;
•	[Claimant #3 – name deleted] and [Claimant #4 – name deleted] both recall their grandparents speaking in language and teaching them aspects of culture, law and the resources to be found in the land and waters around Tinnenburra—at [6] and [5] respectively;
Current association of the native title claim group with the application area
[37]	Attachment F & M states that Kunja people have maintained a ‘continuity of occupation, connection and association with the claim area from pre-contact days to the present’, either by living on or nearby the area. The current association of members of the native title claim group with the area covered by the application is said to derive from their direct descent from the persons named in Schedule A. Members of the claim group live in Cunnamulla or in close proximity to the claim area, they regularly hunt, fish and collect resources along and around the Warrego River and its watercourses. For those who live further away, they continue to regularly visit the area for traditional purposes confirming their continued spiritual, cultural and physical ties to the application area. In this way it is said that Kunja people have ‘continuously associated with the area since pre-sovereignty—[20] and [21].
[38]	In their witness statements and affidavits, members of the native title claim group demonstrate the group’s current association with the area covered by the application. As an adult [Claimant #5 – name deleted]’s (born 1967) experiences as a child have translated to his work as a ranger of the Currawinya National Park (just west of the claim area)—at [21]. He speaks of being out bush as a young man with his ‘Dad’ looking after graves, cleaning ‘native’ wells, learning hunting techniques and where to find various plants for food and medicine. He also recorded sites throughout the claim area with his mother. These travels would take him through much of Kunja country, as well as some proximate to it – north of Cunamulla, Coongoola, Tinnenburra, Rockwell, Blue Lakes, Cuttaburra Creek, Rainstone Mountain—at [15] to [20]. His affidavit is replete with references to places in the claim area where he collects bush foods and medicine, to the waterways for where he fishes and to his knowledge of the geography and landscape of Kunja country—at [25] to [50]. Gertrude Darrigo (born 1948) grew up on [Location – name deleted]. She speaks of her mother, aunties and uncles talking about Kunja country and who was a Kunja person, she remembers traveling through Kunja country visiting places and being told the stories of her people—at [7] to [12].
[39]	[Claimant #1 – name deleted] (born 1933) was told by his mother that he was Kunja. His parents lived and worked on Tinnenburra Station. He was born on Tinnenburra Station and spent his life working on the pastoral stations in and proximate to the area – Belalie, Yantabulla, Brindingabba and Thorlooguna—at [11]. He gives accounts in his witness statement of growing up on Tinnenburra Station, living with other Kunja families – living in humpies, working on the station, when the old people danced every night, his witnessing of corroborees. He learnt to collect bush foods and to cook bush tucker, something he has passed onto younger generations—at [32]. [Claimant #2 – name deleted] (born in 1924) speaks of Kunja families travelling across Kunja country looking for work on the pastoral stations, going ‘walkabout’ and travelling up and down the rivers—at [17] and [18].
[40]	All attest to growing up with their families on Kunja country – living and working on the pastoral stations, traveling through the bush, camping and visiting special places:
•	Cunnamulla, Wyandra, Cuttaburra (in the claim area) and Enngonia, Eulo, Yantabulla (south and west of the claim area)—G Darrigo at [30];
•	growing up living in the camps around Cunnamulla—[Claimant #5 – name deleted] at [12];
•	working and travelling through Kunja country with their parents, learning about the bush, tracking animals, finding water, hunting techniques and how to find plants for bush medicine, maintaining burial sites, waterholes and wells—H McKellar [7] to [11];
•	learning how to read the signs of the landscape, learning the markers to sites and following directions based on the position of the sun, the watercourses and variations in vegetation—[Claimant #5 – name deleted] at [47].
Consideration
[41]	There is, in my view, a factual basis that goes to showing the history of association that members of the claim group have, and that their predecessors had, with the area covered by the application—see Gudjala 2007 at [51]. It is supported by the information at Attachment F & M and further substantiated by the information attested to by members of the native title claim group. I am satisfied that the information before me supports the existence of a link between the current claim group and its predecessors. The information (as outlined above) supports the claim group’s connection to the land and waters of the application area and that this connection has its origins in the preceding generations’ association with the area. This is sufficient for me to be satisfied that the Kunja People native title claim group has, and its predecessors had, an association with the area.
Reasons for s 190B(5)(b)
[42]	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]. Justice Dowsett again considered the requirements of s 190B(5) when he addressed the adequacy of the factual basis underlying an applicant’s claim in Gudjala 2009. He makes statements about the assessment of the adequacy of a general description of the factual basis of the claim, which in summary mean that:
•	assertions should not merely restate the claim; and
•	there must be at least an outline of the facts of the case—at [29].
[43]	In Gudjala 2007, Dowsett J considered that the factual basis materials for this assertion must demonstrate:
•	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].
The relevant society
[44]	Kunja society is asserted to be one of a distinct landholding group within a broader regional society which ‘is determined by the body of regional laws and customs which define and regulate native title rights across parts of the Queensland-NSW border region (including the application area)—Attachment F & M at [14].
[45]	Effective sovereignty in the application area is said to be ‘around 1846-7’—at [5]. At this time the Kunja people’s ancestors formed part of a broader regional society, with the Kunja landholding group continuing to be characterized by:
•	an identity derived from the regional system of traditional laws and customs, embedded in such things as the cosmological, kinship, moiety/section and land tenure systems;
•	the wider native title society with which it shares a like relationship as other tribal communities in the region;
•	exclusive ownership, occupancy and social identification with a defined territory, known to and recognised by its neighbours;
•	cultural and social commonality with other tribes within the region; and
•	a differentiation in territories and practice of laws and customs between the groups of the area—[15].
[46]	The Kunja native title claim group is said to have been and continues to be a ‘tribal landholding entity that has exclusive possession (under Aboriginal law) of its territory (including the application area)…’ [16]. On this basis, although they share a common system of laws and customs, beliefs and practices with their neighbors, only Kunja People enjoy rights and interests in the claim area. More specifically, the rights and interests of members of the claim group arise through descent from an Aboriginal forebear with rights and interests in the application area. In turn, these rights and interests are said to have been maintained by members of the claim group through continuing physical and/or spiritual connection with, and knowledge of, the application area—at [18].
Traditional laws and customs
[47]	Attachment F & M discusses the laws and customs which regulate Kunja rights and interests in the area covered by the application. The essential laws are those:
•	that ‘emanate for the ‘mythological era’ – those that set out the stories of the cosmology of the region by which the land was created and populated; those that are contained in narratives shared with other groups in the region, and those that set out the important aspects of Kunja life and society including rights to the land and its resources and other matters such as language and ritual;
•	of filiation – the rights that pass from parent to child regulating membership of the group and the consequent passing from one generation to the next such rights as possession of country, sites and language;
•	of the individual’s entitlement to the area covered by the application – a right mediated by membership of the group with a person’s right to country allocated in the ‘mythological era’, providing the rights to share with other members of the group ‘the natural, social and cultural resources handed down from the creators of the ‘mythological era’’—at [22].
[48]	In pre-sovereignty times transgression of such laws and customs would have been met with sanctions on both a tribal and regional level. All members of Kunja society are said to have been bound by such laws which continue to be acknowledged and observed by Kunja people today. In this way the laws and customs of the Kunja people are said to be normative in their content:
•	knowledge of myths and their associated sites, relationships with country continue to be mediated by spiritual beliefs, knowledge of stories from the mythological era and the presence of deceased Kunja forebears in the country;
•	totemic affiliation that regulates Kunja people’s spiritual association with the natural world continues to be a component of their underlying belief systems and laws relating to their ownership and occupancy of country;
•	a belief system based in the stories and beings of the mythological era continues to be a force for Kunja people in their acknowledgement and observance of traditional laws and customs—at [24]
[49]	Much of this is referred to in the personal accounts of members of the native title claim group in their affidavits and witness statements. For example:
•	stories of ‘muddagutta’ / ‘mundagatta’ (the big snake that lives in the water) – at Caiwarro waterhole (on the Paroo River, just west of the claim area) – you have to be careful when around such places, you don’t swim on your opwn, it is important to sing out and talk to the country—G Darrigo at [36];
•	mundagatta is understood to have made the lakes, rivers and creeks, ‘everything’ , came down from the Dreamtime, and is responsible for the key geographical features of the Kunja landscape—[Claimant #5 – name deleted] at [87];
•	rituals in relation to death rites, acknowledging country, in particular the waterways and ceremonies that govern relationships with spirits and ancestors—[Claimant #5 – name deleted] at [58], [Claimant #1 – name deleted] [24] to [30];
•	the totem system – your totem is ‘your meat’, ‘you don’t eat your meat’, who you take your totem from, the marriage rules associated with totems—G Darrigo at [49];
•	funerals and burial rites including the practice of smoking;
•	connection to the spiritual world through animals.
Country
[50]	Laws of filiation whereby rights pass from parent to child is said to be the mechanism for the transmission of identity and knowledge and connection to country for Kunja people. These rules of descent have their roots in the mythological era (the Dreaming), are transferred from generation to generation and in this way (amongst other things) govern entitlement to country, the authority to speak for country and what can be done in the bounds of traditional laws and customs on country—Attachment F & M at [25] to [27]. Such laws and customs continue to be acknowledged and observed through such ways as:
•	self-imposed restrictions in relation to access to sites and areas ‘not of your country’;
•	deference to the authority of elders when approaching sites;
•	acknowledgment, permission and sanction protocols when accessing and traversing country.
[51]	Acknowledgement and observance of traditional laws and customs in respect of country also manifests itself in the way members of the claim group practice ‘caring for country’, including:
•	protecting and maintaining knowledge of significant sites through visitation and protection against damage;
•	maintaining traditional resources;
•	the obligation to access, protect and maintain sites—at [28] to [31].
[52]	This factual information is illustrated in the affidavits of members of the native title claim group. They provide personal accounts of their acknowledgement and observance of the boundaries of Kunja country which has been passed down to them by their predecessors; for example, that it centers around the Warrego river, that Currawinya and Eulo is Budjiti country—[Claimant #5 – name deleted] [64] to [71]. Gertrude Darrigo speaks of always respecting ‘your old people and the country around you’—at [35].
[53]	Finally all of the claimants’ accounts refer extensively to the gathering and use of the natural resources of Kunja country. For example:
•	hunting and gathering bush tucker;
•	growing up eating wild meats – porcupine, kangaroo, emu, goanna—G Darrigo at [59], [Claimant #5 – name deleted] at [27];
•	people still eat quandongs, mulga apples, wild bananas and other fruits prepared  and cooked traditionally, wild bee honey and sap from trees—G Darrigo at [62] to [65];
•	fish are caught at particular times of the year, yabbies and mussels—[Claimant #5 – name deleted] [28];
•	people understand the correlation between the seasons and the availability of food—[Claimant #5 – name deleted] at [31];
•	people were taught never to take too much, to look after the bush and it would look after you—G Darrigo at [69] to [75];
•	use of bush medicine—G Darrigo at [76] to [81], [Claimant #5 – name deleted] at [44] to [45].
[54]	In my view, the application and additional material 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.
Reasons for s 190B(5)(c)
[55]	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.
[56]	Attachment F & M provides information to support that continuity of traditional law and custom has been possible because the members of the claim group and their predecessors have continued to live, work and travel through the area covered by the application. It is said that they have continued to observe and acknowledge their traditional laws and customs and adhere to the processes that regulate their association with and responsibilities to their country (the area of the application). Disruptions to the claim group’s continuity of association with the area of Kunja country, caused essentially for reasons of dispossession created by European settlement, is claimed to have been mitigated by:
•	Kunja people maintaining contact with their country through work on the various pastoral stations located within and adjacent to the current claim area; people travelled, worked and resided in the towns and camps proximate to and within the current claim area; and
•	laws and customs relating to country, important sites and ceremonies, stories, hunting and gathering, fishing and bush tucker were passed down by significant people to the younger generations and continue to be passed on today—[Claimant #5 – name deleted] at [97] to [100].
[57]	Attachment F & M asserts that the members of the native title claim group hold rights, responsibilities and interests in relation the area covered by the application under their traditional laws and customs that have been passed down to them by preceding generations. It is in this way that traditional laws and customs are said to have been continuously held by the Kunja People—at [18]. Kunja People are said to continue to assert that their lands and waters are occupied by both creative and ancestral spirits and that their rights and interests originate from those spirits as their forebears. A respect for these spiritual forces imbues a sense of responsibility for the land and to the mythological and ancestral spirits of the Kunja People today. At a practical level this recognition continues in the form of such things as avoidance of places, the transmission of traditional knowledge to the younger generations, the need to speak with the spirits and elders of the country when necessary and the obligation to protect sacred places and ancestral sites from damage—Attachment F & M at [26] to [31].
[58]	The material before me supports the assertion that the laws and customs of the Kunja people have been passed from generation to generation and continue to be acknowledged and observed today among the current generations of the claim group. For example:
•	the claim group’s generational association with the pastoral stations has allowed a transmission of rights, responsibilities and knowledge of country;
•	Kunja people continue to facilitate the transmission of knowledge and customs to younger generations – members of the claim group were taught by their parents, grandparents, uncles and aunties and in turn now teach their own children and grandchildren;
•	working and residing on or proximate to their traditional lands enabled Kunja people to visit sites and areas of significance, thereby maintaining a close relationship to their country.
[59]	Despite a general containment to station and town camps, the material before me asserts, in my view, that Kunja people have continued to acknowledge and observe the traditional laws and customs that underpin their spiritual connection and physical access to and knowledge of their country and cultural traditions. This has been enabled by the intergenerational transmission of traditional laws and customs through their stories and the exercise of rights and responsibilities in relation to the area covered by the application.
[60]	There is sufficient information before me to support the assertion that the native title claim group continues to hold native title in accordance with its traditional laws and customs.
Conclusion
[61]	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.
[62]	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 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].
•	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]. 
[63]	I have examined the factual basis for the assertion that the claimed native title rights and interests exist against each individual right and interest claimed in the application to determine whether prima facie, they:
•	exist under traditional law and custom in relation to any of the land or waters under claim;
•	are native title rights and interests in relation to land or waters (see chapeau to s 223(1)); and
•	are rights and interests that have not been extinguished over the whole of the application area.
[64]	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 native title rights and interests.
Consideration
Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title and / or where ss 47, 47A, 47B or 238 apply), the Kunja People claim the right to possess, occupy, use and enjoy the lands and waters covered by the application (the application area) as against the whole world.
Not established
[65]	The majority decision of the High Court in Western Australia v Ward (2002) 213 CLR 1; (2002) 191 ALR 1; [2002] HCA 28 (Ward HC) considered that ‘[t]he expression “possession, occupation, use and enjoyment ... to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land‘. Further, that expression (as an aggregate) conveys ‘the assertion of rights of control over the land’ which necessarily flow ‘from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country’—at [89] and [93]. Ward HC is authority that, subject to the satisfaction of other requirements, a claim to exclusive possession, occupation, use and enjoyment of lands and waters can be established, prima facie.
[66]	In Griffiths v Northern Territory of Australia [2007] FCAFC 178 (Griffiths FC) the Full Court explored the relevant requirements to proving that such exclusive rights are vested in a native title claim group, stating:
. . . 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—at [71] (emphasis added). 
[67]	The Full Court stressed that it is also:
important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people—at [127] (emphasis added).
[68]	Attachment F & M makes no statements relating to the exercise of such rights that make up the claimed right to exclusive possession. [Claimant #5 – name deleted] refers in his affidavit to various protocols associated with permissions however, does not specifically attest to the principles of the right to exclusive possession other than to say that on Kunja country his father did not need to seek the permission of other Aboriginal people to go out onto his country—[72] to [76].
[69]	In my view, the right to exclusive possession cannot be established, prima facie, as it is not sufficiently evidenced how this claimed right exists under the traditional laws and customs of the native title claim group.
(a) the right to access and be present on 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 on 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 take, use and keep the natural resources, including waters, on the application area;
(i) the right to fish on the application area;
(j) the right to conduct ceremonies on the application area;
(k) the right to conduct burials on the application area;
(l) the right to participate in cultural activities on the application area;
(m) the right to maintain and protect places of importance under traditional laws, customs and practices in the application area;
Established
[70]	These rights are evidenced in the material before me, suggesting they exist under the traditional laws and customs of the native title claim group. The claimants’ statements and affidavits attached to the application attest to the native title claim group’s previous and continuing exercise of these rights. They provide numerous examples of the activities undertaken in exercise of these rights as they exist under their traditional laws and customs. These are referred to in detail above in respect of my consideration of the factual basis condition at s 190B(5).
[71]	Therefore, all of these rights can be established, prima facie, as it is sufficiently evidenced in the factual basis material how it is that they exist under the traditional laws and customs of the native title claim group.
(n) the right to control access to, and use of, the application area by other Aboriginal People or Torres Strait Islanders who seek access to or use of the lands and waters in accordance with traditional laws and customs.
Not established
[72]	The information provided at Attachment F & M and in the claimants’ statements and affidavits does not, in my view, address or refer to any instances of activities undertaken in relation to this right. While it is acknowledged that Kunja society exists within a broader regional society and it is contemplated that interaction regarding access to country was probably a feature of the pre-sovereignty society, the material does not sufficiently elicit the content of Kunja traditional law and custom as it relates to this right. In particular, how the right operates for, or is exercised today by, the native title claim group and its neighbors is not referred to by any of the claimants in any detail.
[73]	Therefore, the right cannot be established, prima facie, as it is not sufficiently evidenced how it exists under the traditional laws and customs of the native title claim group.
Conclusion
[74]	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.
[75]	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. In Doepel, Mansfield J considered the nature of the Registrar’s task at s 190B(7) which was approved by the Full Court in Gudjala FC:
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].
[76]	[Claimant #5 – name deleted] and Gertrude Darrigo both demonstrate in their affidavits their traditional knowledge and connection to Kunja country. This is born of a continuing physical connection to the area covered by the application which has included traversing the country, camping, hunting, fishing, maintaining and protecting sites and places of importance and learning the stories and significance of the Kunja traditional landscape. Examples of these activities are referred to in my consideration above of the factual basis condition.
[77]	I am satisfied that at least one member of that group currently has a traditional physical connection with parts of the application area.
[78]	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.

[79]	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)
[80]	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 of 27 July 2015 and a search that I made of the Tribunal’s geospatial databases on the day of my decision reveals that there are no approved determinations of native title over the application area.
Section 61A(2)
[81]	Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply. Schedule B provides the statement that the application does not cover any area where a previous exclusive possession act was done.
Section 61A(3)
[82]	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 does not make an explicit statement to this effect but it is clear in the framing of its claim to exclusive possession that it is not claimed over areas where a previous non-exclusive possession act was done. The claim includes the statement ‘where a claim to exclusive possession can be recognised (such areas where there has been no prior extinguishment of native title or where ss 47, 47A or 47B or 238 apply)...’. This, in my view, is sufficient to meet the requirements of this condition.
Conclusion
[83]	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.
[84]	I consider each of the subconditions of s 190B(9) in my reasons below.
Section 190B(9)(a)
[85]	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)
[86]	Schedule P provides the statement that no claim to exclusive possession is made over all or part of an offshore place.
Section 190B(9)(c)
[87]	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
[88]	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. 
[89]	Section 190C(2) ‘directs attention to the contents of the application and supporting affidavits’ and ‘seeks to ensure that the application contains ‘all details’ required by s 61’. This condition is procedural only and simply requires that I be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss 61 and 62. I am not required to undertake any merit or qualitative assessment of the material for the purposes of s 190C(2)—Doepel at [16] and also at [35] to [39]. In other words, does the application contain the prescribed details and other information it is required to contain? 
[90]	Below I consider each of the particular parts of ss 61 and 62 as to whether the application contains the requisite details (other information) or is accompanied by an affidavit or other documents.
Native title claim group: s 61(1)
[91]	One of the requirements of my consideration of the application under s 190C(2) is ‘to consider whether the application sets out the native title claim group in the terms required by s 61’—Doepel at [36]. Specifically:
If the description of the native title claim group were to indicate that not all the persons in the native title claim group were included, or that it was in fact a sub-group of the native title claim group, then the relevant requirement of s 190C(2) would not be met and the Registrar should not accept the claim for registration—Doepel at [36].
[92]	The details relevant to my consideration 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.
[93]	The application contains all details and other information required by s 61(1). 
Name and address for service: s 61(3)
[94]	Part B of the application states on page 10 the name and address for service of the persons who are the applicant.
[95]	The application contains all details and other information required by s 61(3). 

Native title claim group named/described: s 61(4)
[96]	Schedule A provides a description of the persons who comprise the native title claim group.
[97]	The application contains all details and other information required by s 61(4).
Affidavits in prescribed form: s 62(1)(a)
[98]	Each of the 7 persons who comprise the applicant have signed an affidavit swearing or affirming, in full, to all the statements required of this section
[99]	The application is accompanied by the affidavit required by s 62(1)(a).
Details required by s 62(1)(b)
[100]	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)
[101]	Schedule B provides a list of general exclusion statements for those areas not covered by the application and refers to Attachment B for the description of the external boundaries of the area covered by the application which is a metes and bounds description of those geographical external boundaries, referencing geographic coordinate points.
Map of external boundaries of the area: s 62(2)(b)
[102]	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)
[103]	Schedule D provides the statement that no searches have been carried out.
Description of native title rights and interests: s 62(2)(d)
[104]	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)
[105]	Schedule F refers to Attachment F & M which provides a general description of the factual basis on which it is asserted that the claimed native title rights and interests exist.
Activities: s 62(2)(f)
[106]	Schedule G lists the activities the claim group currently carries out in relation to the area covered by the application.
Other applications: s 62(2)(g)
[107]	Schedule H states that the applicant is not aware of any such applications.
Section 24MD(6B)(c) notices: s 62(2)(ga)
[108]	Schedule HA states that the applicant is not aware of any such notifications in relation to the area covered by the application.
Section 29 notices: s 62(2)(h)
[109]	Schedule I states that the applicant is not aware of any such notices in relation to the area covered by the application.
Conclusion
[110]	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).
[111]	The application therefore 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. 
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.
[112]	The requirement that the Registrar be satisfied in the terms set out in s 190C(3) is only triggered if a previous application meets the conditions found in ss 190C(3)(a), (b) and (c)—see Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC) at [9]. Section 190C(3) relates to ensuring there are no common native title claim group members between the application currently being considered for registration (‘the current application’) and any overlapping ‘previous application’ that is a registered application when the current application was made in the Court. The Kunja People application, which is the current application for the purposes of s 190C(3), was made when it was filed in the Court on 17 July 2015.
[113]	Currently the Register of Native Title Claims (the Register) shows an overlap of the area of the Kunja People application with a small area of the Budjiti People application (QUD53/2007).,
[114]	The Budjiti People application was amended on 18 June 2015 to reduce the area it covers and on 23 June 2015 the reduced area of the Budjiti People claim was determined. The determination will only be finalized upon the registration of a number of Indigenous Land Use Agreements and in the interim the claim remains entered on the Register. In my view, the Budjiti People application currently on the Register has been superseded by the amended application covering the reduced area and this is the relevant application for my consideration. The geospatial report confirms that it does not overlap any part of the area covered by the Kunja application. As such, no native title determination applications fall within the external boundaries of the current application.
[115]	As the application is not overlapped by any other applications in the sense discussed in s 190C(3)(a) to (c), there is no requirement that I consider the issue of common claim group membership.
[116]	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.

[117]	Schedule R of the application refers to Attachment R which is a certification made by Queensland South Native Title Services (QSNTS). 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)
[118]	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].
[119]	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.
[120]	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 
[121]	The geospatial report of 27 July 2015 confirms that QSNTS is the only representative body for the whole of the area covered by the application. QSNTS is funded to perform all the functions of a representative body in southern and western Queensland pursuant to s 203FE. It is therefore the only body that could certify the application under s 203BE.
[122]	The certificate is dated 7 July 2015 and signed by the Chief Executive Officer of QSNTS. The certificate states that he has been delegated the function given to QSNTS under the Act to certify the application in accordance with s 203BE and s 203FEA.
Does the certificate meet the requirements of 203BE
[123]	For the purposes of s 203BE(4)(a), the certification contains statements in relation to the requirements of paragraphs 203BE(2)(a) and (b), that is:
•	all the persons in the native title claim group have authorised the applicant to make the application and to deal with the matters arising in relation to it and this authorisation has been undertaken in accordance with a decision making process which has been adopted and agreed to by the native title claim group; and
•	all reasonable efforts have been made to ensure the application describes or otherwise identifies all the persons in the native title claim group.
[124]	For the purposes of s 203BE(4)(b), the certification briefly sets out the reasons for QSNTS being of that opinion, namely:
•	the meeting to authorise an applicant for and on behalf of the Kunja People was convened on 13 June 2015 in Cunnamulla;
•	QSNTS published notices for the meeting in three print media publications in addition to copies of those notices being mailed to members of the native title claim group;
•	the meetings were well attended and decisions made in accordance with the processes and instructions of the native title claim group.
[125]	The certificate does not specifically set out the efforts made by the representative body to ensure that the application describes or otherwise identifies all the persons in the native title claim group. However, in my view, the statement that goes to this issue is made in the certificate and is supported by the statement in the certificate that the Chief Executive Officer is satisfied that all necessary steps and processes have been followed in accordance with the requirements of the Act’—at paragraph 4(f).
[126]	In my view, the statements made in the certificate, as summarised above, briefly set out the reasons for QSNTS being of the opinion that the requirements of s 203BE(2)(a) and (b) have been met.
[127]	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, as there are no other applications that cover the area of the Kunja People claimant application, there is no requirement for the certificate to address this provision.
[128]	For the reasons set out above I am satisfied that the application has been certified under Part 11 by each 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	Kunja People	
NNTT file no.	QC2015/008	
Federal Court of Australia file no.	QUD598/2015	
In accordance with ss 190(1) and 186 of the Native Title Act 1993 (Cwlth), the following is to be entered on the Register of Native Title Claims for the above application.
Section 186(1): Mandatory information
Application filed/lodged with:
As per Schedule
Date application filed/lodged:
As per Schedule 
Date application entered on Register:
19 November 2015
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:
(a) the right to access and be present on 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 on 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 take, use and keep the natural resources, including waters, on the application area;
(i) the right to fish on the application area;
(j) the right to conduct ceremonies on the application area;
(k) the right to conduct burials on the application area;
(l) the right to participate in cultural activities on the application area;
(m) the right to maintain and protect places of importance under traditional laws, customs and practices in the application area;

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Lisa Jowett